Regular Session 2017-2018 House Resolution 1117 P.N. 4138

PRINTER'S NO. 4138

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE RESOLUTION

No.

1117

Session of

2018

INTRODUCED BY DERMODY, D. MILLER, HARKINS, FRANKEL, A. DAVIS,

DONATUCCI, YOUNGBLOOD, KINSEY, PASHINSKI, SIMS, HANNA,

M. QUINN, GALLOWAY, GAINEY, MURT, BRIGGS, READSHAW, SOLOMON,

BARRAR, DAVIS, SCHLOSSBERG, J. McNEILL, HILL-EVANS, DRISCOLL,

DEASY, SNYDER, NEILSON, BURNS, BIZZARRO, MARKOSEK, LONGIETTI,

BARBIN, SAINATO, GOODMAN, STURLA, CALTAGIRONE, CONKLIN,

FREEMAN, MULLERY, SCHWEYER, MADDEN, MATZIE, CARROLL,

KAVULICH, O'BRIEN, THOMAS, COMITTA, FITZGERALD, BULLOCK,

McCLINTON, KIRKLAND, HAGGERTY, VAZQUEZ, DeLISSIO, TAI, KORTZ,

DeLUCA, WARREN, FLYNN, RABB, DALEY, KIM, McCARTER, W. KELLER,

ROZZI, RAVENSTAHL, D. COSTA, P. COSTA, CEPHAS, BRADFORD,

DEAN, DAWKINS, ROEBUCK, WHEATLEY, V. BROWN, BOYLE, CRUZ AND

J. HARRIS, OCTOBER 2, 2018

REFERRED TO COMMITTEE ON RULES, OCTOBER 2, 2018

A RESOLUTION

Amending the Ethical Conduct Rules of the House of

Representatives, further providing for definitions and for

conduct, providing for professional conduct and further

providing for committee on ethics.

RESOLVED, That the title of the Ethical Conduct Rules of the

House of Representatives be amended to read:

ETHICAL AND PROFESSIONAL CONDUCT RULES OF

THE HOUSE OF REPRESENTATIVES

RESOLVED, That the opening paragraph of House Rule 1 E of the

Ethical Conduct Rules of the House of Representatives be amended

and the section be amended by adding definitions to read:

ETHICAL CONDUCT RULES OF

THE HOUSE OF REPRESENTATIVES

RULE 1 E

Definitions

The following words and phrases when used in the Ethical and

Professional Conduct Rules of the House of Representatives shall

have the meanings given to them in this Rule unless the context

clearly indicates otherwise:

* * *

"Employer." The term includes the following:

(1) An officer of the House.

(2) The Office of the Speaker of the House of

Representatives.

(3) The House Republican Caucus.

(4) The House Democratic Caucus.

* * *

"Gender identity or expression." The gender-related

identity, appearance, mannerisms, expression or other gender-

related characteristics of an individual regardless of the

individual's designated sex at birth.

"Harassment." Unwelcome conduct that is based on race,

color, religion, sex (including pregnancy), sexual orientation,

gender identity or expression, national origin, age, disability

or genetic information. The term includes sexual harassment.

* * *

"Sexual harassment." Unwelcome sexual advances, requests for

sexual favors or other verbal or physical conduct of a sexual

nature.

"Sexual orientation." Heterosexuality, homosexuality or

bisexuality.

* * *

RESOLVED, That the title and subsection (1)(k) of House Rule

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2 E of the Ethical Conduct Rules of the House of Representatives

be amended and the rule be amended by adding a subsection to

read:

RULE 2 E

Ethical Conduct

(1) No campaign activity may be conducted by a House

employee on House work time. No campaign activity may be

conducted in a House office or with House resources or House

funds. The following shall apply:

* * *

(k) A House employee who refuses to participate in a

campaign activity or to make a campaign contribution shall

not be [sanctioned] subject to retaliation for that refusal.

* * *

(8) The following shall apply:

(a) No member or officer of the House shall retaliate

against a House employee or another member or officer of the

House in response to any of the following actions taken in

good faith:

(i) Filing a complaint of:

(A) unethical conduct under the Legislative Code

of Ethics or Rules of the House; or

(B) unethical or illegal conduct with the

Pennsylvania State Ethics Commission or a law

enforcement agency.

(ii) Participating in an investigation in connection

with or proceeding resulting from the filing of a

complaint under subparagraph (i).

(b) Nothing under subparagraph (a) shall prevent action

against a member or officer of the House who is the subject

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of a complaint of unethical or illegal conduct.

RESOLVED, That the Ethical Conduct Rules of the House of

Representatives be amended by adding a section to read:

RULE 2.1 E

Professional Conduct

(1) No Member or officer of the House shall do any of the

following:

(a) Use the submission to or rejection by a House

employee of conduct constituting sexual harassment or other

forms of harassment as a basis for an employment decision

affecting the employee.

(b) Make submission to conduct constituting sexual

harassment or other forms of harassment, either explicitly or

implicitly, a term or condition of a House employee's

employment.

other forms of harassment that is so frequent or severe that

it creates a hostile or offensive work environment for a

House employee or another Member or officer of the House.

(2) No Member or officer of the House shall retaliate

against a House employee or another Member or officer of the

House in response to any of the following actions taken in good

faith:

(a) Filing:

(i) a complaint of sexual harassment or other forms

of harassment under Rules of the House or the policies

and procedures of an employer;

(ii) a charge of sex discrimination relating to

sexual harassment or other forms of harassment with a

government agency or commission charged with enforcing

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laws relating to sex discrimination and harassment;

(iii) a civil action relating to sexual harassment

or other forms of harassment in a court of competent

jurisdiction; or

(iv) a criminal complaint relating to sexual

harassment or other forms of harassment with a law

enforcement agency.

(b) Participating in an investigation in connection with

or proceedings resulting from the filing of a complaint or

proceeding under paragraph (a).

(3) Nothing under subsection (2) shall prevent action

against a member or officer of the House who is the subject of a

complaint or proceeding relating to sexual harassment or other

forms of harassment.

RESOLVED, That House Rule 3 E of the Ethical Conduct Rules of

the House of Representatives be amended to read:

RULE 3 E

COMMITTEE ON ETHICS

The Committee shall consist of eight Members, four of whom

shall be members of the majority party appointed by the Speaker,

and four of whom shall be members of the minority party

appointed by the Minority Leader. From the Members appointed to

the Committee, the Speaker shall appoint a chair, vice-chair and

secretary for the Committee. The chair shall be a member of the

majority party, and the vice chair shall be a member of the

minority party.

The members of the Committee shall first meet upon the call

of the chair and perfect its organization. A majority of the

Committee shall constitute a quorum for it to proceed to

business. Unless otherwise provided in this rule, a majority of

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the Committee shall be required to take any action authorized by

this rule. The Committee shall have the power to promulgate

rules not inconsistent with this rule or Rules of the House that

may be necessary for the orderly conduct of its business.

The chair of the Committee shall notify all members of the

Committee at least 24 hours in advance of the date, time and

place of meetings and, insofar as possible, the subjects on the

agenda. Meetings may be called from time to time by the chair of

the Committee as the chair deems necessary. A member of the

Committee may request that the chair call a meeting for a

specific purpose. If the chair refuses to call a meeting upon

such request, a majority of the Committee may vote to call a

meeting by giving two days' written notice to the Speaker of the

House setting forth the time and place for such meeting. Such

notice shall be read in the House and posted in the House

Chamber by the Chief Clerk or a designee. Thereafter, the

meeting shall be held at the time and place specified in such

notice.

The Committee shall not continue to exist after sine die

adjournment of the General Assembly. Proceedings on matters

before the Committee that have not been concluded or disposed of

by October 31 of the second year of a legislative term shall

cease on such date and all documents, reports, communications,

transcripts and other materials compiled by the Committee for

such matters shall be collected, organized and submitted to the

Chief Clerk under seal for transition to the reconstituted

Committee consisting of Members appointed from the incoming

General Assembly. These materials shall be held in a secure

manner and nothing in this rule shall authorize the Chief Clerk

or any other person to view such materials. Within 30 days

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following the reconstitution of the Committee in the next

succeeding legislative term, the Committee shall review such

materials and determine whether or not to proceed with one or

more of the matters under review by the former Committee. Any

time period required for any actions of the Committee or others

under this rule shall be tolled until the reconstituted

Committee has made a determination whether or not to proceed.

If the Committee determines to proceed with a matter, the

Committee shall continue from the stage in the consideration of

the matter where the former Committee ended.

The Committee shall compile, update and distribute a Members'

Handbook on Ethics for Members and House Employees on matters

regarding the ethical conduct of their legislative duties. Each

Member shall complete two hours of ethics education and training

and one hour of sexual harassment and discrimination in the

workplace education and training each legislative term. A Member

shall be excused from one hour of ethics training for any full

year the Member was absent due to illness, injury, military

service or any other permissible excuse under General Operating

Rule 64(a). The Committee shall be responsible for planning and

offering [ethics] the foregoing education and training programs.

The Committee shall issue to a Member upon the Member's

request an advisory opinion regarding the Member's duties under

Rule 2E relating to legislative nonprofit organizations. The

opinion shall be issued within 14 days following the request. No

Member who acts in good faith on an opinion issued under this

paragraph shall be subject to any sanctions for so acting if the

material facts are as stated in the request. Opinions issued

under this paragraph shall be public records and may from time

to time be published. Notwithstanding the foregoing, the Member

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requesting the opinion may request that an opinion undergo

deletions and changes necessary to protect the identity of the

persons involved, and the Committee shall make such deletions

and changes.

The Committee may issue other advisory opinions with regard

to questions pertaining to other legislative ethics or decorum

at the request of a Member or House employee. An opinion issued

under this paragraph shall be confidential and shall apply

exclusively to the requestor. No requestor who acts in good

faith on an opinion issued under this paragraph shall be subject

to any sanctions for acting in accordance with the opinion if

the material facts are as stated in the request.

The Committee may receive complaints against Members and

House employees alleging unethical conduct under the Legislative

Code of Ethics or the Rules of the House and complaints against

Members and officers of the House for violations of Rule 2.1 E.

A complaint must be in writing and be signed by the person

filing the complaint under penalty of law under 18 Pa.C.S. §

4904 (relating to unsworn falsification to authorities). The

complaint must set forth in detail the actions constituting the

alleged unethical conduct or violation. No person shall disclose

or acknowledge to any other person any information relating to

the filing of a complaint or the proposed filing of a complaint,

except as otherwise authorized under this rule or Rule 2.1 E,

for the purpose of seeking legal advice, as otherwise required

by law or to carry out a function of the Committee.

The Committee shall not have jurisdiction over, shall not

accept for review or action and shall return to the complainant

with a notice explaining the Committee's lack of jurisdiction

any of the following:

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(1) a complaint filed later than five years following

the occurrence of the alleged unethical conduct or violation;

(2) a complaint filed against a former Member or former

House employee unless required by Section 7(c) of the

Legislative Code of Ethics; or

(3) a complaint filed against a Member during a

restricted period.

A five-year limitations period that expires during a

restricted period shall be tolled until the day following the

election occurring at the expiration of the restricted period.

Within 30 days following receipt of a complaint over which

the Committee has jurisdiction under this rule, the Committee

shall do one of the following:

(1) dismiss the complaint if it:

(a) alleges facts that do not constitute unethical

conduct or a violation of Rule 2.1 E;

(b) is objectively baseless;

(d) is a frivolous complaint; or

(2) initiate a preliminary investigation of the alleged

unethical conduct or violation.

If the Committee initiates a preliminary investigation, it

shall, promptly upon voting to proceed, send the subject a

letter setting forth each allegation in the complaint. Within 15

days after receipt of the letter, the subject may file a written

response with the Committee. Failure of the subject to file a

response shall not be deemed to be an admission, or create an

inference or presumption, that the allegations in the complaint

are true, and such failure shall not prohibit the Committee from

either proceeding with the preliminary or a formal investigation

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or dismissing the complaint. The Committee may engage an

independent counsel to assist in a preliminary investigation.

The subject may be represented by counsel of the subject's

choosing at any point during an investigation under this rule.

If the Committee initiates a preliminary investigation of a

complaint of a violation under Rule 2.1 E, it shall also send to

the appropriate employer a copy of the letter sent to the

subject setting forth each allegation in the complaint. Upon the

request of the complainant, the employer shall make adjustments

to the complainant's work hours, assignment or duties or

location that may be appropriate under the circumstances of the

allegations in the complaint. The adjustments may include:

(1) removing the complainant or the subject from the

physical work location of the complainant;

(2) allowing the complainant to be placed on

administrative leave with continued pay and benefits, if

applicable; or

(3) any other reasonable accommodation agreed to by the

employer and the complainant.

The employer shall keep the letter and the fact of the

initiation of a preliminary investigation confidential but may

disclose necessary information to Members, officers of the House

or House employees as needed in order to implement the foregoing

adjustments. No House employee shall retaliate or take adverse

action against the complainant in response to the filing of a

complaint of a violation of Rule 2.1 E with the Committee.

A member of the Committee who is the complainant, the subject

or a witness to the unethical conduct or violation alleged in a

complaint shall not participate in any Committee consideration

of the complaint. The Member shall be temporarily replaced on

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the Committee in a like manner as his or her original

appointment.

Within 30 days following the initiation of a preliminary

investigation, the Committee shall vote to dismiss the complaint

for lack of probable cause to support the alleged unethical

conduct or violation or to proceed with a formal investigation

because it finds that probable cause exists. If a majority of

the Committee is unable to agree on either course of action, the

Committee shall dismiss the complaint. The Committee shall

promptly notify the subject in writing of the result.

If the Committee votes to proceed with a formal

investigation, the Committee shall engage an independent counsel

unless the Committee determines that the alleged unethical

conduct or violation raised in the complaint does not warrant

the expense of engaging an independent counsel. If the Committee

does not engage an independent counsel, the Committee shall be

represented in the investigation and any hearing conducted under

this rule by Committee staff attorneys, including at least one

from each party.

The Committee, including Committee staff attorneys, and any

independent counsel engaged by the Committee shall have the

power to conduct investigations and hearings under the

guidelines set out in this rule. Where a provision of this rule

conflicts with another Rule of the House, the provision of this

rule shall govern. This rule shall be construed to empower the

Committee and its independent counsel to do all of the

following:

(1) act as a neutral fact-finder;

(2) protect due process and other constitutional rights

of a subject;

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(3) fully investigate and deter unethical conduct or a

violation of Rule 2.1 E; and

(4) protect the public trust.

The Chief Clerk shall pay the fees and expenses of an

Independent Counsel engaged by the Committee under this rule.

The Committee may issue subpoenas for documents or testimony

as part of a preliminary investigation, a formal investigation

or in connection with a hearing before the Committee.

Notwithstanding the provision of any other Rule of the House,

subpoenas issued under this rule shall be in the name of the

Committee, shall be signed by the chair of the Committee and

shall be attested by another member of the Committee who voted

in favor of authorizing the subpoena.

A subpoena issued by the Committee may be served upon any

person and shall have the force and effect of a subpoena issued

out of the courts of this Commonwealth. Subpoenas shall be

served by the Sergeant-at-Arms of the House or another person

designated by the Committee when directed to do so by the

Committee. Each subpoena shall be addressed to the witness and

shall state that such proceeding is before a Committee of the

House for which the witness is required to attend and testify at

a specified time and place; or to produce books, papers,

records, accounts, reports, documents and data and information

produced and stored by any electronic data processing system; or

both, as the Committee may also require. Mileage and witness

fees shall be paid by the House to such witness in an amount

prescribed by law. Unless addressed to and served on the

subject, a copy of a subpoena issued by the Committee shall be

provided to the subject and the subject's counsel, if

applicable. A person who willfully neglects or refuses to comply

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with a subpoena issued by the Committee shall be subject to the

penalties provided by the laws of this Commonwealth with respect

to such willful neglect or refusal. Notwithstanding the

foregoing, a recipient of a subpoena issued by the Committee may

object to the subpoena by serving notice of such objection on

the signatory to the subpoena and the Committee. The Committee

may quash or modify the subpoena if it finds the subpoena to be

overly broad or without proper purpose. Each member of the

Committee shall have the power to administer oaths and

affirmations to witnesses appearing before the Committee.

All subpoenaed books, papers, records, accounts, reports,

documents, data and information shall be returned to the person

from whom such material was subpoenaed when the Committee has

completed its examination of such material, but in no event

later than the date of final disposition of the matter.

Following the completion of a formal investigation, the

Committee shall conduct a hearing if:

(1) the independent counsel engaged by the Committee

recommends that a hearing be conducted and the Committee

votes to adopt the recommendation; or

(2) an independent counsel was not engaged by the

Committee but the Committee finds that the testimony and

documents reviewed by the Committee during the formal

investigation indicates more likely than not that the

unethical conduct or violation alleged in the complaint

occurred.

If a hearing is to be conducted, the Committee shall provide

the subject and the subject's counsel, if applicable, with

written notice consistent with constitutional principles of due

process. The Pennsylvania Rules of Evidence shall apply during

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the hearing, unless the Committee determines otherwise.

Notwithstanding the foregoing, the Committee may not infringe on

the right of the subject to present evidence, cross-examine

witnesses, face his or her accuser and be represented by counsel

at a hearing conducted under this rule.

Witnesses called to appear at a hearing under this rule,

including a subject, may be accompanied by his or her own

counsel for the purpose of advising him or her concerning his or

her constitutional rights. Counsel may interpose legal objection

to any and all questions which in the opinion of counsel may

violate the constitutional rights of his or her clients.

The proceedings of a hearing conducted under this rule shall

be either stenographically or electronically recorded. The

Committee shall determine which parts of such recorded

proceedings, if any, shall be transcribed.

The burden shall be on the independent counsel, if one has

been engaged by the Committee, or the Committee staff attorneys,

if an independent counsel has not been engaged, to prove, by

clear and convincing evidence, that the unethical conduct or

violation alleged in the complaint occurred. Within 30 days

following the conclusion of the formal investigation and

hearing, the Committee shall make a determination as to whether

the burden was met and shall submit its finding to the House. If

the Committee finds that the burden was met, the Committee may

make one or more of the following recommendations to the House:

(1) a reprimand of the subject;

(2) a censure of the subject;

(3) expulsion of the subject from the House; or

(4) the denial or limitation of any right, power or

privilege of the Member granted by Rules of the House and not

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contrary to the Pennsylvania Constitution.

The Committee shall provide a written report of its findings

and recommendations, if any, to the subject and shall

simultaneously submit a copy of the same to the House. Only

findings and recommendations agreed to by a majority of the

Committee shall be included in the report. The report may

include a minority report. The House shall not take any action

on the findings and recommendations submitted by the Committee

and shall not make such findings and recommendations public

until a period of at least seven days has passed following the

Committee's provision of the report to the subject.

The Committee may extend any of the time periods, other than

those relating to the jurisdiction of the Committee, required

for any actions of the Committee or others under this rule.

Investigations, hearings and meetings of the Committee

relating to an investigation and the existence of such

investigations, hearings, and meetings shall be confidential.

All other meetings of the Committee shall be open to the public.

Notwithstanding the above, except for hearings on complaints

of a violation of Rule 2.1 E, the Committee shall conduct a

hearing in public upon the written request of the subject unless

the Committee determines that evidence or testimony to be

received at the hearing may substantially defame, degrade, or

incriminate a person other than the subject. In that event, the

Committee shall receive such evidence or testimony in executive

session. No evidence or testimony taken in executive session may

be released to any person or authority or used in public

sessions without the consent of the Committee.

The Committee may enter into a consent agreement with the

subject at any point in the proceedings.

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The complaint, response and records of the Committee shall be

confidential. Notwithstanding the foregoing:

(1) consent agreements and final findings by the

Committee of unethical conduct and the Committee's

recommendations with respect to such findings shall not be

confidential; [and]

(1.1) consent agreements and final findings by the

Committee of a violation of Rule 2.1 E shall not be

confidential, except that at the request of a complainant,

the name of the complainant and, unless the House considers a

resolution to discipline the subject, any facts that may lead

to the identification of the complainant, including the name

of the subject, shall be redacted before an agreement or

final findings of the Committee are made public; and

(2) the subject may, in his or her discretion, make

public a finding by the Committee that no unethical conduct

or violation of Rule 2.1 E had occurred or that there was

insufficient evidence presented to the Committee that

unethical conduct or a violation of Rule 2.1 E had

occurred[.], except that the subject shall not make public

the name of a complainant who filed a complaint alleging a

violation of Rule 2.1 E.

Any member of the Committee breaching the confidentiality

provisions set forth in this rule shall be removed immediately

from the Committee and replaced by another Member in a like

manner as his or her original appointment.

A nondisclosure agreement shall not be imposed on an

individual as a condition of the initiation of the procedures

available under this rule for the filing and hearing of a

complaint of a violation of Rule 2.1 E. The foregoing shall not

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be construed to prohibit the complainant and the subject from

voluntarily entering into a settlement agreement with a

nondisclosure provision agreed to by each party as part of the

settlement of a complaint or proceeding. Notwithstanding the

foregoing, a Member who is the subject of a complaint of a

violation of Rule 2.1 E filed with the Committee shall not

benefit from a nondisclosure agreement or provision if a

completed formal investigation of the Committee finds that the

complaint is credible or a final decision by the Committee finds

a violation.

The Committee may meet with a committee of the Senate to hold

investigations or hearings involving complaints against

employees of the two chambers jointly or officers or employees

of the Legislative Reference Bureau, the Joint State Government

Commission, the Local Government Commission, the Legislative

Budget and Finance Committee, the Legislative Data Processing

Committee or other legislative service agencies. No action may

be taken at a joint meeting unless it is approved by the

Committee. A member of the Committee who is the complainant, the

subject or a witness to the unethical conduct or violation of

Rule 2.1 E alleged in a complaint under this paragraph shall not

participate in any joint proceedings under this paragraph. The

Member shall be temporarily replaced on the Committee in a like

manner as his or her original appointment.

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