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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY MARSHALL, METCALFE, CLYMER, D. COSTA, GEIST, GIBBONS, GRELL, KAUFFMAN, LONGIETTI, MAJOR, MILLER, PYLE, SAYLOR, SCAVELLO, SCHRODER AND J. TAYLOR, JANUARY 21, 2011 |
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| REFERRED TO COMMITTEE ON STATE GOVERNMENT, JANUARY 21, 2011 |
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| AN ACT |
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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. |
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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, |
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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 |
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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 |
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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. |
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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. |
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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. |
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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 |
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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 |
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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. |
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