PRINTER'S NO. 2271
No. 1710 Session of 2007
INTRODUCED BY PETRI, BELFANTI, CLYMER, GIBBONS, GINGRICH, GRELL, JOSEPHS, KILLION, MURT, PHILLIPS, REICHLEY, J. TAYLOR, WATSON AND YOUNGBLOOD, JULY 9, 2007
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, JULY 9, 2007
AN ACT 1 Amending the act of June 25, 1919 (P.L.581, No.274), entitled 2 "An act for the better government of cities of the first 3 class of this Commonwealth," providing for a First Class 4 Cities Children's Ombudsman Office in the Department of 5 Public Welfare, for powers and duties of ombudsman, for 6 investigative and remedial powers, for response to 7 complaints, for cooperation of agencies and providers, for 8 confidentiality of investigators and records, for findings 9 and recommendations, for protection from retaliation, for 10 nonexclusivity of remedy and for release of information to 11 ombudsman; and making inconsistent repeals. 12 The General Assembly of the Commonwealth of Pennsylvania 13 hereby enacts as follows: 14 Section 1. The act of June 25, 1919 (P.L.581, No.274), 15 referred to as the First Class City Government Law, is amended 16 by adding an article to read: 17 ARTICLE III.1 18 CHILDREN'S OMBUDSMAN 19 Section 1. Definitions. 20 The following words and phrases when used in this article 21 shall have the meanings given to them in this section unless the 22 context clearly indicates otherwise:
1 "Administrative agency." An agency in a city of the first 2 class that provides services to a child who is the subject of an 3 investigation conducted by the ombudsman under this article. 4 "Child welfare services." "Child-care services" as defined 5 in 23 Pa.C.S. § 6303 (relating to definitions). The term does 6 not include child day-care centers or group and family day-care 7 homes. 8 "Complainant." An individual who makes a complaint under 9 this article. 10 "Department." The Department of Public Welfare of the 11 Commonwealth. 12 "Mayor." The mayor or other chief executive officer of a 13 city of the first class. 14 "Ombudsman." The First Class City Children's Ombudsman. 15 "Remediable action." An action by an administrative agency 16 or an agent of the agency that is: 17 (1) contrary to law, rule or policy; 18 (2) imposed without an adequate statement of reason; or 19 (3) based on irrelevant or erroneous grounds. 20 "Secretary." The Secretary of Public Welfare of the 21 Commonwealth. 22 Section 2. First Class City Children's Ombudsman. 23 (a) First Class City Children's Ombudsman Office.--There is 24 hereby established in the department a First Class City 25 Children's Ombudsman Office to be headed by a First Class City 26 Children's Ombudsman. 27 (b) Appointment.--The secretary shall appoint the ombudsman. 28 (c) Term of office.-- 29 (1) The ombudsman shall hold office for a term of five 30 years and shall continue to hold office until the ombudsman's 20070H1710B2271 - 2 -
1 successor is appointed. 2 (2) The secretary may reappoint the ombudsman then 3 serving for one additional term. A vacancy shall be filled by 4 appointment for the remainder of the unexpired term. 5 (3) An ombudsman who has served part of an unexpired 6 term may serve up to two additional terms. 7 (d) Removal.--The secretary may remove the ombudsman only 8 for neglect of duty, misconduct or inability to perform duties. 9 (e) Administrative support.--The First Class Cities 10 Children's Ombudsman Office shall be an autonomous entity within 11 the department for purposes of administrative support. 12 Section 3. Powers and duties of ombudsman. 13 (a) General rule.--The ombudsman shall have the following 14 powers and duties: 15 (1) To receive, process and investigate complaints under 16 this article. 17 (2) To identify and make appropriate recommendations to 18 the mayor, Governor, Commonwealth executive agencies, General 19 Assembly and Supreme Court concerning issues affecting the 20 welfare of children. 21 (3) Subject to annual appropriations, to employ 22 sufficient personnel to carry out the powers and duties 23 prescribed by this article. 24 (4) To budget and expend funds. 25 (5) To advise the public of the services of the 26 ombudsman, the purposes of the office and procedures to 27 contact the office. 28 (6) To prescribe procedures necessary to carry out the 29 powers and duties of the office. 30 (b) Limitation.--The ombudsman may not overrule an action by 20070H1710B2271 - 3 -
1 an administrative agency or court. 2 Section 4. Investigative and remedial powers. 3 The ombudsman may: 4 (1) Investigate alleged remediable actions concerning 5 child welfare services in a city of the first class. 6 (2) Investigate received complaints concerning child 7 welfare services in a city of the first class. 8 (3) Hold informal hearings and request that individuals 9 appear before the ombudsman and give testimony or produce 10 documentary evidence that the ombudsman considers relevant to 11 a matter under investigation. 12 (4) Report findings and recommendations under section 8. 13 Section 5. Response to complaints. 14 (a) Notice.-- 15 (1) The ombudsman shall notify the complainant of the 16 decision to investigate and shall notify the department, 17 administrative agency, provider of child welfare services and 18 other interested parties of the intention to investigate. 19 (2) If the ombudsman declines to investigate a complaint 20 or to continue an investigation, the ombudsman shall notify 21 the complainant and the department, administrative agency, 22 provider of child welfare services and other interested 23 parties of the decision and the reasons for the ombudsman's 24 action. 25 (b) Professional discipline.-- 26 (1) If the investigation of a complaint leads the 27 ombudsman to believe the matter complained of may involve 28 professional misconduct, the ombudsman shall bring the matter 29 to the attention of the authorities responsible for 30 professional discipline. 20070H1710B2271 - 4 -
1 (2) If the complaint refers to conduct by an attorney, 2 guardian ad litem or court-appointed special advocate, the 3 ombudsman shall perform a preliminary investigation and 4 transmit the results of the investigation with the referral. 5 (c) Referrals.--In the case of complaints brought to the 6 attention of the ombudsman but not within the ombudsman's powers 7 under this section, the ombudsman shall refer the person making 8 the complaint to a person with the authority or ability to 9 assist the person. 10 (d) Alternative responses.-- 11 (1) The ombudsman may advise a complainant to pursue all 12 administrative remedies or channels of complaint open to the 13 complainant before pursuing a complaint with the ombudsman. 14 (2) Subsequent to the administrative processing of a 15 complaint, the ombudsman may conduct further investigations. 16 (e) Criminal violations.-- 17 (1) If the ombudsman finds in the course of an 18 investigation that an individual's action is in violation of 19 Federal or State criminal law, the ombudsman shall 20 immediately report that fact to the district attorney or the 21 Attorney General. 22 (2) If the complaint is against a provider of child 23 welfare services, the ombudsman shall refer the matter to the 24 department for further action. 25 Section 6. Cooperation of agencies and providers. 26 (a) Investigations.--The department, administrative agency 27 or provider of child welfare services shall: 28 (1) Upon the ombudsman's request, grant the ombudsman 29 access to all relevant information, records and documents in 30 its possession that the ombudsman considers necessary in the 20070H1710B2271 - 5 -
1 investigation. 2 (2) Assist the ombudsman in obtaining the necessary 3 releases for those documents that are specifically 4 restricted. 5 (3) Provide the ombudsman upon request with progress 6 reports concerning the administrative processing of a 7 complaint. 8 (b) Public awareness.--The department, administrative agency 9 or provider of child welfare services shall provide information 10 to a biological parent, prospective adoptive parent or foster 11 parent regarding this article. 12 Section 7. Confidentiality of investigations and records. 13 (a) Matters under investigation.-- 14 (1) The ombudsman shall treat all matters under 15 investigation as confidential, including the identities of 16 recipients of information, individuals from whom information 17 is acquired and persons seeking assistance from the 18 ombudsman. 19 (2) Upon receipt of information that by law is 20 confidential or privileged, the ombudsman shall maintain the 21 confidentiality of the information and shall not further 22 disclose or disseminate the information except as provided by 23 applicable Federal or State law. 24 (b) Records.-- 25 (1) A record of the office of the ombudsman is 26 confidential, shall be used only for the purposes of this 27 article and is not subject to subpoena. 28 (2) Information contained in a record may not be 29 disclosed in such a manner as to identify individuals, except 30 for good cause shown on order of a court. 20070H1710B2271 - 6 -
1 (3) The ombudsman or other agency may not disclose a 2 record of the ombudsman or a record received from the 3 ombudsman under the act of June 21, 1957 (P.L.390, No.212), 4 referred to as the Right-to-Know Law, except for good cause 5 shown on order of a court. 6 (4) No person may disclose any record under this 7 subsection without the consent of the complainant. 8 Section 8. Findings and recommendations. 9 (a) Report of findings.--The ombudsman shall make a report 10 of the findings of an investigation. 11 (b) Recommendations.--The ombudsman may make recommendations 12 to the department, the administrative agency, the provider of 13 child welfare services and other appropriate entities if the 14 ombudsman finds any of the following: 15 (1) A matter should be further considered by the 16 department, the administrative agency or provider of child 17 welfare services. 18 (2) An administrative action should be modified or 19 canceled. 20 (3) Reasons should be given for an administrative 21 action. 22 (4) Other action should be taken by the department, the 23 administrative agency or provider of child welfare services. 24 (c) Subjects of report.-- 25 (1) Before announcing a conclusion or recommendation 26 that expressly or by implication criticizes an individual, 27 the department, the administrative agency or a provider of 28 child welfare services, the ombudsman shall provide the 29 subject of the report with reasonable advance notice and an 30 opportunity to respond. 20070H1710B2271 - 7 -
1 (2) When making a report adverse to the department, 2 administrative agency or provider, the ombudsman shall 3 include in the report any written statement of reasonable 4 length made to the ombudsman by the department, 5 administrative agency or provider of child welfare services 6 in defense or mitigation of the action. 7 (d) Notice to complainant.--The ombudsman shall provide the 8 complainant with a copy of the report. The ombudsman may provide 9 the complainant with a copy of the ombudsman's recommendations 10 regarding the complaint. 11 (e) Annual report.--The ombudsman shall submit to the 12 Governor, the General Assembly, the administrative office of the 13 Supreme Court and the department an annual report on the conduct 14 of the ombudsman, including any recommendations regarding the 15 need for legislation or for change in rules or policies. 16 Section 9. Protection from retaliation. 17 (a) General rule.--An official, the department, the 18 administrative agency or a provider of child welfare services 19 may not penalize a person for filing a complaint or cooperating 20 with the ombudsman in investigating a complaint. 21 (b) Obstruction.--An individual, the department, the 22 administrative agency or a provider of child welfare services 23 may not hinder the lawful actions of the ombudsman or employees 24 of the ombudsman. 25 Section 10. Nonexclusivity of remedy. 26 (a) General rule.--The authority granted the ombudsman under 27 this article is in addition to the authority granted under the 28 provisions of: 29 (1) any other statute or rule under which the remedy or 30 right of appeal or objection is provided for a person; or 20070H1710B2271 - 8 -
1 (2) any procedure provided for the inquiry into or 2 investigation of any matter. 3 (b) Authority of ombudsman.--The authority granted the 4 ombudsman does not limit or affect the remedy or right of appeal 5 or objection and is not an exclusive remedy or procedure. 6 Section 11. Release of information to ombudsman. 7 Reports specified in 23 Pa.C.S. § 6339 (relating to 8 confidentiality of reports) shall be made available to the 9 ombudsman. 10 Section 2. Repeals are as follows: 11 (1) The act of April 21, 1949 (P.L.665, No.155), known 12 as the First Class City Home Rule Act, is repealed insofar as 13 it is inconsistent with this act. 14 (2) All acts and parts of acts are repealed insofar as 15 they are inconsistent with this act. 16 Section 3. This act shall take effect in 180 days. E16L11DMS/20070H1710B2271 - 9 -