PRINTER'S NO.  84

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

109

Session of

2011

  

  

INTRODUCED BY MARSHALL, METCALFE, CLYMER, D. COSTA, GEIST, GIBBONS, GRELL, KAUFFMAN, LONGIETTI, MAJOR, MILLER, PYLE, SAYLOR, SCAVELLO, SCHRODER AND J. TAYLOR, JANUARY 21, 2011

  

  

REFERRED TO COMMITTEE ON STATE GOVERNMENT, JANUARY 21, 2011  

  

  

  

AN ACT

  

1

Amending the act of July 10, 1968 (P.L.316, No.154), entitled

2

"An act establishing a code of ethics for the General

3

Assembly, its officers and employes, and providing remedies

4

for its enforcement and penalties," further providing for

5

definitions, for prohibitions and for civil remedies.

6

The General Assembly of the Commonwealth of Pennsylvania

7

hereby enacts as follows:

8

Section 1.  Sections 3, 5 and 7 of the act of July 10, 1968

9

(P.L.316, No.154), known as the Legislative Code of Ethics, are

10

amended to read:

11

Section 3.  Definitions.--Unless the context clearly

12

indicates otherwise, the following words and terms when used

13

herein shall have the respective meanings defined as follows:

14

(1)  "Agency" means any department, agency, commission,

15

board, committee, authority or other instrumentality which is

16

created by or under the Constitution or laws of the Commonwealth

17

of Pennsylvania or by executive order, except local political

18

subdivisions or agencies, the majority of the members of whose

19

governing bodies are locally elected or appointed.

 


1

(2)  "Agency head" and "head of any agency" mean the chief

2

executive or administrative officer of each of the State

3

agencies.

4

(3)  "Assist" means to act, or agree to act, in such a way as

5

to help, aid, advise, furnish information to, or otherwise

6

provide assistance to another person believing that such action

7

is of help, aid, advice, or assistance to such person and with

8

intent to so assist such person.

9

(4)  "Compensation" means any thing of economic value,

10

however designated, which is paid, loaned, granted, given,

11

donated or transferred, or to be paid, loaned, granted, given,

12

donated or transferred for or in consideration of personal

13

services to any person, official or to the State.

14

(4.1)  "Ethics committee" means the Committee on Ethics and

15

Official Conduct of the Senate or the Committee on Ethics of the

16

House of Representatives.

17

(5)  "Gift," as used in section 5, includes any thing of

18

economic value with the exception of public awards,

19

insignificant nonpecuniary gifts, political contributions for

20

which an accounting is required by and is made pursuant to the

21

election laws, or compensation or gifts not connected with or

22

related to either the legislative processes or the donee's

23

services as a member.

24

(5.1)  "Legislative nonprofit organization" means a nonprofit

25

corporation or other entity whose primary purpose is to receive

26

funds under the General Appropriation Act or another

27

appropriations act at the discretion or by reason of the

28

influence of a member for the use at the direction or discretion

29

of the member.

30

(6)  "Member" shall include a Senator, Representative,

- 2 -

 


1

officer or employe of the General Assembly or any committee

2

thereof; but not a person employed on a contractual basis or

3

without compensation for a particular project.

4

(7)  "State action" means any action on the part of the

5

Commonwealth or a Commonwealth agency, including, but not

6

limited to: (i) any decision, determination, finding, ruling or

7

order, including the judgment or verdict of a court or a quasi-

8

judicial board, in which the Commonwealth or any of its

9

agencies, boards and commissions has an interest, except in such

10

matters, involving criminal prosecutions; (ii) any grant,

11

payment, award, license, contract, transaction, decision,

12

sanction or approval, or the denial thereof, or the failure to

13

act with respect thereto, in which the Commonwealth or any of

14

its agencies has an interest, except in such matters involving

15

criminal prosecutions; (iii) any disposition of any matter by

16

the General Assembly or any committee thereof.

17

(8)  "Participate" in connection with a transaction involving

18

the Commonwealth means to take part in State action or a

19

proceeding personally as a Commonwealth official, through

20

approval, disapproval, decision, recommendation, the rendering

21

of advice, investigation, or the failure to act or perform a

22

duty.

23

(9)  "Person" means: (i) an individual, other than a

24

Commonwealth agency or official; (ii) a partnership,

25

association, corporation, firm, institution, trust, foundation

26

or other legal entity (other than an agency), whether or not

27

operated for profit; (iii) a district, county, municipality or

28

other political subdivision of the State, or any subdivision

29

thereof, provided such is not an agency; (iv) a foreign country

30

or subdivision thereof, or (v) any other entity which is not a

- 3 -

 


1

Commonwealth agency or official.

2

(10)  "Responsibility" in connection with a transaction

3

involving the Commonwealth means the direct administration or

4

operating authority whether intermediate or final, and either

5

exercisable alone or with others, and either personally or

6

through or with others or subordinates, to effectively approve,

7

disapprove, fail to act or perform a duty, or otherwise direct

8

State action in respect of such transaction.

9

(11)  "Thing of economic value" means any money or other

10

thing having economic value except food, drink or refreshments

11

consumed by an official including reasonable transportation and

12

entertainment incident thereto, while the personal guest of some

13

person, and includes, without limiting the generality of the

14

foregoing: (i) any loan, except a bone fide loan made by a duly

15

licensed bank or savings and loan association at the normal rate

16

of interest, any property interest, interest in a contract,

17

merchandise, service and any employment or other arrangement

18

involving a right to compensation; (ii) any option to obtain a

19

thing of economic value, irrespective of the conditions to the

20

exercise of such option; and (iii) any promise or undertaking

21

for the present or future delivery or procurement of a thing of

22

economic value.

23

In the case of an option, promise or undertaking, the time of

24

receipt of the thing of economic value shall be deemed to be,

25

respectively, the time the right to the option becomes fixed,

26

regardless of the conditions to its exercise, and the time when

27

the promise or undertaking is made, regardless of the conditions

28

to its performance.

29

(12)  "Transaction involving the Commonwealth" means any

30

proceeding, application, submission, request for a ruling or

- 4 -

 


1

other determination, contract, claim, case or other such

2

particular matter which the official in question believes, or

3

has reason to believe: (i) is, or will be, the subject of State

4

action, or (ii) is one to which the Commonwealth is or will be a

5

party, or (iii) is one in which the Commonwealth has a direct

6

interest.

7

Section 5.  Prohibitions.--(a) No member shall knowingly

8

solicit, accept, or receive any gift or compensation other than

9

that to which he is duly entitled from the Commonwealth which is

10

intended to influence the performance of his official duties or

11

which would influence the performance of his official duties nor

12

shall any member solicit, accept, or receive any such gift or

13

compensation for advocating the passage or defeat of any

14

legislation or for doing any act intended to influence the

15

passage or defeat of legislation including, in the case of a

16

Senator or Representative, his vote thereon.

17

(b)  No member shall receive compensation or any thing of

18

economic value for any consultation, the subject matter of

19

which:

20

(1)  Is devoted substantially to the responsibilities,

21

programs, or operations of the General Assembly, or

22

(2)  Draws substantially upon official data or ideas which

23

have not become part of the body of public information.

24

(c)  No member shall participate as a principal in any

25

transaction involving the Commonwealth or any Commonwealth

26

agency in which he, his spouse or child, or any person of which

27

he is an officer, director, trustee, partner or employe has a

28

substantial personal economic interest as distinguished from

29

that of a general class or general group of persons of which he

30

may reasonably be expected to know.

- 5 -

 


1

(d)  No member shall receive any compensation or enter into

2

any agreement with any person for compensation for services

3

rendered or to be rendered, for assisting any person in any

4

transaction involving the Commonwealth or any of its officials

5

or agencies unless he shall file with the Chief Clerk of the

6

House of Representatives or Secretary of the Senate, as the case

7

may be, a written statement, giving the following information:

8

(1)  Name and address of member.

9

(2)  The name and address of the person employing or

10

retaining the member to perform such services.

11

(3)  Whether the amount of compensation for services rendered

12

or to be rendered is (i) one thousand dollars ($1000), or more,

13

or (ii) less than one thousand dollars ($1000).

14

(4)  A brief description of the transaction in reference to

15

which service is rendered or is to be rendered, and of the

16

nature of the service.

17

The sworn statement shall be filed with the chief clerk or

18

secretary within ten days from the date such agreement, express

19

or implied, was entered into, or the compensation was received.

20

Such statement of disclosure shall be deemed confidential and

21

privileged and shall only be made public in connection with a

22

public hearing for an alleged violation of this code where such

23

would be relevant to the charges made and for which the member

24

is being tried.

25

(e)  Subsections (a), (b), (c) and (d) of this section 5,

26

shall not apply to:

27

(1)  Receipt of bona fide reimbursement, to the extent

28

permitted by law, for actual expenses for travel and such other

29

necessary subsistence as is compatible with this act and for

30

which no Commonwealth payment or reimbursement is made.

- 6 -

 


1

(2)  Participation in the affairs of charitable, religious,

2

nonprofit educational, public service or civic organizations, or

3

the activities of national or State political parties not

4

proscribed by law.

5

(3)  Awards for meritorious public contribution given by

6

public service or civic organizations.

7

(4)  Sharing in any compensation received from the

8

Commonwealth or from any political subdivision of the

9

Commonwealth by a person of which such member owns or controls

10

any portion thereof, provided such compensation was received by

11

such person as a result of having made the lowest competitive

12

bid on a Commonwealth contract or subcontract and having had

13

such bid accepted by the Commonwealth or the general contractor,

14

or by reason of an engagement by the Commonwealth in emergency

15

circumstances where dispensation with bidding is permitted by

16

law, and provided such member did not assist in the procurement

17

of the Commonwealth's or the subdivision's or the general

18

contractor's acceptance of such low bid or engagement without

19

bidding.

20

(5)  Campaign contributions for use in meeting campaign

21

expenses by any official who is or becomes a candidate for

22

election to the same or another public office.

23

(6)  Receipt of compensation from the Commonwealth, directly

24

or indirectly, where: (i) the total interest of the member and

25

his immediate family in the person receiving said compensation

26

is less than ten percent, or (ii) the member or the person in

27

which he has an interest is the exclusive supplier of the real

28

or personal property or service purchased by the Commonwealth,

29

or (iii) the service purchased is newspaper advertising required

30

by law.

- 7 -

 


1

(7)  Receipt of compensation, directly or indirectly, by a

2

member who is an attorney-at-law, for services in a proceeding

3

where he represents an interest adverse to that of the

4

Commonwealth, where the proceeding is before any court, where

5

the Commonwealth has a right to judicial review in a proceeding

6

not initially before a court, or where the proceeding involves

7

only the uncontested and routine action of administrative

8

officers or employes of the Commonwealth in issuing or renewing

9

a license, charter, certificate or similar document.

10

(f)  No member shall use for private gain any information not

11

available to the public at large and acquired by him solely by

12

virtue of his position.

13

(g)  No information described in subsection (f) of this

14

section 5 shall be disclosed by a member to others for purposes

15

of their use for private gain, in circumstances where the use of

16

such information by the member would violate subsection (f) of

17

this section 5.

18

(h)  No member shall create, maintain or cause to be created

19

or maintained a legislative nonprofit organization. For purposes

20

of implementing this subsection, the appropriate ethics

21

committee shall issue to a member of their body, upon the

22

member's request, an opinion with respect to the member's duties

23

under this subsection. Each ethics committee shall, within

24

fourteen days, issue the opinion. No member who acts in good

25

faith on an opinion issued to that member by an ethics committee

26

shall be subject to any sanctions for so acting, if the material

27

facts are as stated in the opinion request. The respective

28

ethics committees' opinions shall be public records and may from

29

time to time be published, except that the member requesting the

30

legislative nonprofit organization opinion may require that the

- 8 -

 


1

legislative nonprofit organization opinion contain deletions and

2

changes necessary to protect the identity of the persons

3

involved.

4

Section 7.  Civil Remedies.--(a) Any agency head having final

5

authority to approve or execute a contract between the

6

Commonwealth and a private party may cancel or rescind any such

7

contract without further liability to the Commonwealth where he

8

finds that a violation of this act has influenced the making of

9

said contract; provided, such rescission shall be limited so as

10

not to affect adversely the interests of innocent third parties;

11

and provided further, that no such action shall be initiated

12

before the affirmative finding of the appropriate [House or

13

Senate Committee on Ethics] ethics committee that a violation

14

has occurred.

15

(b)  The finding referred to in subsection (a) supra shall be

16

made in accordance with the act of June 4, 1945 (P.L.1388), as

17

amended, known as the "Administrative Agency Law," and shall be

18

subject to judicial review, provided that the executive officer

19

may suspend the contract pending determination of the merits of

20

the controversy.

21

(c)  The Attorney General may bring a civil action against

22

any member or former member in the judicial district in which

23

said person is domiciled, who shall, to his economic advantage,

24

have acted in violation of this act, to recover on behalf of the

25

Commonwealth an amount equal to such economic advantage, with

26

interest; provided, that no such action shall be brought before

27

the affirmative finding of the appropriate [House or Senate

28

Committee on Ethics] ethics committee that a violation has

29

occurred.

30

(d)  No action under subsection (c) of this section 7 shall

- 9 -

 


1

be commenced after the expiration of two years following the

2

discovery by an agency head or [an Ethics Committee of the

3

General Assembly] the appropriate ethics committee of the

4

occurrence of the alleged violation, or four years after the

5

occurrence of the alleged violation, whichever period is

6

shorter.

7

(e)  The Senator or Representative having responsibility for

8

hiring an employe of the General Assembly may, and if so ordered

9

by the [Ethics Committee of his respective house] appropriate

10

ethics committee, shall, dismiss, suspend or take such other

11

action as may be appropriate under the circumstances with

12

respect to any employe upon a finding by the Senator or

13

Representative or by said committee that such employe has

14

violated any of the provisions of this act.

15

Section 2.  This act shall take effect in 60 days.

- 10 -