PRIOR PRINTER'S NOS. 673, 923 PRINTER'S NO. 1038
No. 565 Session of 2005
INTRODUCED BY LEMMOND, RHOADES, PICCOLA, MADIGAN, STACK,
D. WHITE, ROBBINS, TOMLINSON, KASUNIC, LAVALLE, COSTA,
WONDERLING, PUNT, RAFFERTY, ORIE, WOZNIAK, LOGAN, FUMO,
SCARNATI, ARMSTRONG, CONTI, MUSTO, FERLO, O'PAKE, THOMPSON,
WENGER, KITCHEN, PILEGGI, BOSCOLA, GREENLEAF, STOUT,
TARTAGLIONE AND WAUGH, APRIL 6, 2005
SENATOR THOMPSON, APPROPRIATIONS, RE-REPORTED AS AMENDED,
JUNE 30, 2005
AN ACT
1 Amending the act of August 9, 1955 (P.L.323, No.130), entitled,
2 as amended, "An act relating to counties of the first, third,
3 fourth, fifth, sixth, seventh and eighth classes; amending,
4 revising, consolidating and changing the laws relating
5 thereto; relating to imposition of excise taxes by counties,
6 including authorizing imposition of an excise tax on the
7 rental of motor vehicles by counties of the first class; and
8 providing for regional renaissance initiatives," further
9 providing for qualifications, eligibility and compensation
10 for district attorneys; and making repeals.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Section 102 of the act of August 9, 1955
14 (P.L.323, No.130), known as The County Code, amended June 18,
15 1997 (P.L.179, No.18), is amended to read:
16 Section 102. Applicability.--(a) Except incidentally, as in
17 sections 108, 201, 210 [and 211], 211 and 1401 or as provided in
18 Article XXX, this act does not apply to counties of the first,
19 second A, or second classes.
1 (b) Except where otherwise specifically limited, this act
2 applies to all counties of the third, fourth, fifth, sixth,
3 seventh and eighth classes.
4 Section 2. Section 1401 of the act, amended June 16, 1972
5 (P.L.468, No.149) and November 23, 1994 (P.L.640, No.98), is
6 amended to read:
7 Section 1401. District Attorney; Qualifications;
8 Eligibility; Compensation.--(a) The district attorney shall be
9 a resident of the county, [learned in the law,] at least
10 [eighteen] twenty-five years of age, and a citizen of the United
11 States [and, except as otherwise provided in subsection (b) of
12 this section for counties of the seventh and eighth classes],
13 shall have been admitted to practice as an attorney before the
14 Supreme Court of this Commonwealth for at least one year prior
15 to taking the oath of office and shall have resided in the
16 county for which he is elected or appointed for [two years] ONE <--
17 YEAR next preceding his election or appointment.
18 [(b) In counties of the seventh and eighth classes, the
19 district attorney shall have resided in the county for which he
20 is elected or appointed for one year next preceding his election
21 or appointment, and be a resident of such county.
22 (c) In counties of the third, fourth, fifth and sixth
23 classes, the district attorney shall have been admitted to
24 practice as an attorney before the Supreme or Superior Courts of
25 this Commonwealth for at least two years prior to the time for
26 taking the oath of office, or shall have been admitted to
27 practice before the Supreme or Superior Courts of this
28 Commonwealth for at least six months prior to the time for
29 taking the oath of office, and have been practicing law before a
30 court of record of this Commonwealth for at least five years.
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1 (d) In counties of the seventh class, the district attorney
2 shall have been admitted to practice as an attorney before the
3 Supreme or Superior Courts of this Commonwealth for at least six
4 months prior to the time for taking the oath of office, and
5 shall have practiced before a court of record of this
6 Commonwealth for at least two years.
7 (e) In counties of the eighth class, the district attorney
8 shall have been admitted to practice as an attorney in the
9 Supreme or Superior Court of this Commonwealth prior to the time
10 for taking the oath of office, and shall have practiced law
11 before a court of record of this Commonwealth for eighteen
12 months prior to the time for taking the oath of office.]
13 (f) No district attorney shall be eligible [to] for a seat
14 in the Legislature or to any other office under the laws and
15 Constitution of the Commonwealth, excepting an office or
16 commission in the militia of the Commonwealth, during his
17 continuance in office.
18 (g) [The commissioners of any county may by ordinance fix
19 the services of the district attorney at full time. Such
20 determination may be made at any time, provided that the
21 determination shall not be made between the first day for the
22 circulation of nominating petitions for the office of district
23 attorney and January of the subsequent year. The president judge
24 of the court of common pleas of the judicial district and the
25 district attorney may make recommendations at any time to the
26 county commissioners on the advisability of full-time service by
27 the district attorney, but the same shall not be binding on
28 them.
29 When the determination by the county commissioners to require
30 a full-time district attorney becomes effective and operative,
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1 he] District attorneys of counties of the third, fourth, fifth, <--
2 sixth and seventh class shall be full time. In counties of the
3 eighth class, the district attorney shall be full time where any
4 of the following apply:
5 (1) The commissioners of the county have by ordinance fixed
6 the services of the district attorney at full time. An ordinance
7 under this clause may not be made between the first day for the
8 circulation of nominating petitions for the office of district
9 attorney and January 1 of the subsequent year.
10 (2) The president judge of the county court of common pleas
11 orders that the office of district attorney shall be full time.
12 Upon motion of the district attorney, the president judge shall
13 conduct a hearing and shall issue an order whether the office of
14 district attorney shall be full time within 180 days of the
15 filing of the motion. The order may be appealed by the district
16 attorney or the county commissioners in accordance with the
17 rules of appellate procedure. An order under this clause shall
18 take effect in 60 days. An order under this clause directing
19 that the office of district attorney be full time shall be made
20 if the president judge finds that two or more of the following
21 factors are present in the county:
22 (i) the average caseload of felony, misdemeanor and juvenile
23 cases for the past five years has exceeded two hundred per year;
24 (ii) the average caseload for homicide cases for the past
25 five years has equaled or exceeded one per year;
26 (iii) the county has any State correctional facility,
27 juvenile detention facility, youth development center, youth
28 forestry camp, other licensed residential facility serving
29 children and youth, or mental health or mental retardation
30 facility or institution, with a population exceeding two hundred
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1 fifty, or if the county has more than one such facility or
2 institution, the aggregate population of such facilities and
3 institutions exceeds two hundred fifty;
4 (iv) a major controlled substances transportation route
5 passes through the county;
6 (v) the average number of convictions under 75 Pa.C.S. §
7 3802 (relating to driving under influence of alcohol or
8 controlled substance) or the former 75 Pa.C.S. § 3731 (relating
9 to driving under influence of alcohol or controlled substance)
10 subject to the alcoholic ignition interlock statutory provision
11 requirements exceeds thirty per year; or
12 (vi) the county constitutes a single and separate judicial
13 district.
14 (H) IN COUNTIES OF THE THIRD, FOURTH, FIFTH, SIXTH AND <--
15 SEVENTH CLASS:
16 (1) EACH PART-TIME DISTRICT ATTORNEY HOLDING OFFICE ON THE
17 EFFECTIVE DATE OF THIS SUBSECTION WHOSE TERM EXPIRES JANUARY 7,
18 2008, SHALL BECOME FULL TIME ON JANUARY 2, 2006, IF, AFTER
19 EXERCISING DUE DILIGENCE IN CONDUCTING AN ASSESSMENT OF THE BEST
20 INTERESTS OF PUBLIC SAFETY AND THE ADMINISTRATION OF CRIMINAL
21 JUSTICE IN THE COUNTY, THE PART-TIME DISTRICT ATTORNEY PROVIDES
22 WRITTEN NOTICE TO THE CHAIRMAN OF THE COUNTY COMMISSIONERS, THE
23 SECRETARY OF REVENUE AND THE STATE TREASURER, NO SOONER THAN
24 DECEMBER 1, 2005, AND NO LATER THAN DECEMBER 30, 2005, OF THE
25 PART-TIME DISTRICT ATTORNEY'S CHOICE TO SERVE AS A FULL-TIME
26 DISTRICT ATTORNEY. WHERE A PART-TIME DISTRICT ATTORNEY HOLDING
27 OFFICE ON THE EFFECTIVE DATE OF THIS ACT DOES NOT PROVIDE SUCH
28 NOTICE, THE OFFICE OF DISTRICT ATTORNEY SHALL REMAIN PART TIME
29 FOR THE REMAINDER OF THE CURRENT TERM OF OFFICE.
30 (2) A PERSON WHO HAS BEEN ELECTED TO THE OFFICE OF DISTRICT
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1 ATTORNEY IN A COUNTY WHERE THE DISTRICT ATTORNEY IS PART TIME
2 AND WHOSE TERM COMMENCES ON JANUARY 2, 2006, SHALL, UPON TAKING
3 THE OATH OF OFFICE, BE A FULL-TIME DISTRICT ATTORNEY IF, AFTER
4 EXERCISING DUE DILIGENCE IN CONDUCTING AN ASSESSMENT OF THE BEST
5 INTERESTS OF PUBLIC SAFETY AND THE ADMINISTRATION OF CRIMINAL
6 JUSTICE IN THE COUNTY, THE DISTRICT ATTORNEY-ELECT HAS PROVIDED
7 WRITTEN NOTICE TO THE CHAIRMAN OF THE COUNTY COMMISSIONERS, THE
8 SECRETARY OF REVENUE AND THE STATE TREASURER NO SOONER THAN
9 DECEMBER 1, 2005, AND NO LATER THAN DECEMBER 30, 2005, OF THE
10 DISTRICT ATTORNEY-ELECT'S CHOICE TO SERVE AS A FULL-TIME
11 DISTRICT ATTORNEY. WHERE THE DISTRICT ATTORNEY-ELECT DOES NOT
12 PROVIDE SUCH NOTICE, THE OFFICE OF DISTRICT ATTORNEY SHALL
13 REMAIN PART TIME FOR THE ENTIRE TERM OF OFFICE COMMENCING
14 JANUARY 2, 2006.
15 (3) A PERSON SEEKING ELECTION OR RE-ELECTION AS DISTRICT
16 ATTORNEY IN A COUNTY WHERE THE OFFICE OF DISTRICT ATTORNEY IS A
17 PART-TIME POSITION AFTER JANUARY 2, 2006, SHALL, UPON ELECTION
18 AND TAKING THE OATH OF OFFICE, BECOME A FULL-TIME DISTRICT
19 ATTORNEY IF, PRIOR TO THE DEADLINE FOR FILING NOMINATION
20 PETITIONS OR PAPERS, THE PERSON HAS PROVIDED WRITTEN NOTICE TO
21 THE CHAIRMAN OF THE COUNTY COMMISSIONERS, THE SECRETARY OF
22 REVENUE AND THE STATE TREASURER OF THE PERSON'S CHOICE TO SERVE
23 AS A FULL-TIME DISTRICT ATTORNEY. WHERE THE PERSON DOES NOT
24 PROVIDE SUCH NOTICE, THE OFFICE OF DISTRICT ATTORNEY SHALL
25 REMAIN PART TIME FOR THE ENTIRE TERM OF OFFICE.
26 (I) ONCE THE OFFICE OF DISTRICT ATTORNEY BECOMES FULL TIME,
27 IT SHALL NOT THEREAFTER BE CHANGED.
28 (h) (J) A full-time district attorney shall be compensated <--
29 at one thousand dollars ($1,000) lower than the compensation
30 paid to a judge of the court of common pleas in the respective
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1 judicial district. [It is the legislative intent that all
2 provisions of this subsection requiring full-time service shall
3 be unenforceable until such time as the accompanying salary
4 provisions take effect.
5 Once the determination for a full-time district attorney is
6 made, it shall not thereafter be changed except by referendum of
7 the electorate of the said county. Such referendum may be
8 instituted by the county commissioners or on petition by five
9 per cent of the electors voting for the office of Governor in
10 the last gubernatorial general election. Such referendum may be
11 held at any election preceding the year in which the district
12 attorney shall be elected. Such]
13 (i) (K) In a county where the office of district attorney is <--
14 full time, the district attorney shall devote full time to the
15 office. The district attorney while in office, shall not derive
16 any other income as a result of honorariums, profit shares or
17 divisions of income from any firm with which the district
18 attorney was associated prior to election. This limitation shall
19 not be construed, however, to preclude payment of fees earned
20 for legal work done prior to, but not concluded until after the
21 earlier of his [election] being made full time or being sworn in
22 as a full-time district attorney. In addition the district
23 attorney shall not engage in any private practice and must be
24 completely disassociated with any firm with which the district
25 attorney was affiliated prior to [election, nor shall the] the
26 earlier of being made full time or being sworn in as a full-time
27 district attorney. The district attorney-elect may not accept
28 any civil or criminal cases after being elected to the office.
29 [Furthermore, the district attorney shall be subject to the
30 canons of ethics as applied to judges in the courts of common
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1 pleas of this Commonwealth in so far as such canons apply to
2 salaries, full-time duties and conflicts of interest.
3 Any complaint by a citizen of the county that a full-time
4 district attorney may be in violation of this section shall be
5 made to the Disciplinary Board of the Supreme Court of
6 Pennsylvania, for determination as to the merit of the
7 complaint. If any substantive basis is found, the board shall
8 proceed forthwith in the manner prescribed by the rules of the
9 Supreme Court and make such recommendation for disciplinary
10 action as it deems advisable, provided, however, that if the
11 Supreme Court deems the violation so grave as to warrant removal
12 from office, the prothonotary of the said court shall transmit
13 its findings to the Speaker of the House of Representatives for
14 such action as the House deems advisable under Article VI of the
15 Constitution of the Commonwealth of Pennsylvania.
16 Where no such determination to require a full-time district
17 attorney is made, the district attorney shall be permitted to
18 have an outside practice.
19 Notwithstanding the provision of any other statute, the
20 annual salaries of part-time district attorneys shall be as
21 follows:]
22 (j) Each part-time district attorney holding office on the <--
23 effective date of this subsection shall become full time sixty
24 days thereafter, unless the district attorney elects not to
25 assume full-time status for the remainder of the district
26 attorney's current term of office. The election shall be in
27 writing and delivered to the chairman of the county
28 commissioners, the Secretary of Revenue and the State Treasurer.
29 Where a district attorney elects not to assume full-time status,
30 the district attorney shall be permitted to
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1 (L) A PART-TIME DISTRICT ATTORNEY MAY have an outside <--
2 practice and shall be compensated, notwithstanding the
3 provisions of any other statutes, as follows: In counties of the
4 third or fourth class, the salary shall be sixty per cent of the
5 annual salary payable to the judge of the court of common pleas
6 of the judicial district of the county; in a county of the fifth
7 or sixth class, the salary shall be fifty per cent of the annual
8 salary payable to the judge of the court of common pleas of the
9 judicial district of the county; and in a county of the seventh
10 or eighth class, the salary shall be forty per cent of the
11 annual salary payable to the judge of the court of common pleas
12 of the judicial district of the county.
13 (k) Subject to the provisions of subsection (g), any <--
14 district attorney who chooses to remain part time under
15 subsection (j) shall become full time on the date set forth by
16 statute for the administration of the oath of office after the
17 next election for the office of district attorney.
18 (M) EXCEPT AS PROVIDED IN SUBSECTION (G), ANY OFFICE OF <--
19 DISTRICT ATTORNEY THAT IS PART TIME ON JANUARY 2, 2012, SHALL
20 BECOME FULL TIME AS OF THAT DATE.
21 (l) (N) In the event of a vacancy in the office of district <--
22 attorney, the person appointed to serve the remainder of the
23 unexpired term shall be bound by the election made in subsection
24 (j) (H) for the remainder of said term. <--
25 (m) (O) A district attorney shall be subject to the Rules of <--
26 Professional Conduct and the canons of ethics as applied to
27 judges in the courts of common pleas of this Commonwealth
28 insofar as such canons apply to salaries, full-time duties and
29 conflicts of interest. Any complaint by a citizen of the county
30 that a full-time district attorney may be in violation of this
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1 section shall be made to the Disciplinary Board of the Supreme
2 Court of Pennsylvania. If any substantive basis is found, the
3 board shall proceed forthwith in the manner prescribed by the
4 rules of the Supreme Court and make such recommendation for
5 disciplinary action as it deems advisable; provided, however,
6 that if the Supreme Court deems the violation so grave as to
7 warrant removal from office, the prothonotary of the Supreme
8 Court shall transmit its findings to the Speaker of the House of
9 Representatives for such action as the House of Representatives
10 deems appropriate under Article VI of the Constitution of
11 Pennsylvania.
12 (n) (P) The Commonwealth shall annually reimburse each <--
13 county with a full-time district attorney an amount equal to
14 sixty-five per cent of the district attorney's salary.
15 Section 3. The following acts and parts of acts are
16 repealed:
17 Act of April 12, 1866 (P.L.103, No.91), entitled "An act
18 relative to the fees of district attorney, in certain counties
19 of this commonwealth."
20 Act of March 14, 1905 (P.L.37, No.19), entitled "An act to
21 fix the salaries of district attorneys, and providing for the
22 appointment of assistant district attorneys, in the several
23 counties of this Commonwealth having over eight hundred thousand
24 inhabitants; prescribing the powers and duties, and fixing the
25 salaries of the said assistant district attorneys."
26 Act of April 17, 1905 (P.L.170, No.125), entitled "An act
27 providing that the district attorneys, in all counties whose
28 population does not exceed one hundred and fifty thousand, shall
29 be paid a salary, and fixing the same, which shall be in lieu of
30 all fees, and in full compensation for their services; and
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1 providing for the appointment of assistant district attorneys in
2 said counties, and for the compensation of the same; and
3 providing that the fees heretofore allowed the district
4 attorneys upon indictments shall remain in amount as heretofore,
5 but shall hereafter be as part of the costs, for the use and
6 benefit of the proper county."
7 Act of July 9, 1919 (P.L.795, No.329), entitled "An act to
8 fix the salaries of district attorneys in counties having a
9 population of less than one million inhabitants."
10 Section 1401 of the act of July 28, 1953 (P.L.723, No.230),
11 known as the Second Class County Code.
12 Section 4. This act shall take effect as follows:
13 (1) The addition of section 1401(n) 1401(P) of the act <--
14 shall take effect January 2, 2006.
15 (2) This section shall take effect immediately. <--
16 (3) The remainder of this act shall take effect November
17 3, 2005.
18 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT <--
19 IMMEDIATELY.
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