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PRINTER'S NO. 128
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
146
Session of
2015
INTRODUCED BY GROVE, SAYLOR, JAMES, METCALFE, GABLER, MILLARD,
BAKER, BLOOM, KAUFFMAN, A. HARRIS, BARRAR, D. COSTA AND
M. K. KELLER, JANUARY 21, 2015
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 21, 2015
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, repealing and adding provisions
relating to independent counsel.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Chapter 93 of Title 18 of the Pennsylvania
Consolidated Statutes is repealed:
[CHAPTER 93
INDEPENDENT COUNSEL
Subchapter
A. Preliminary Provisions
B. General Provisions
C. Authority and Duties of Independent Counsel
D. Miscellaneous Provisions
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
9301. Short title of chapter.
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9302. Definitions.
§ 9301. Short title of chapter.
This chapter shall be known and may be cited as the
Independent Counsel Authorization Act.
§ 9302. Definitions.
The following words and phrases when used in this chapter
shall have, unless the context clearly indicates otherwise, the
meanings given to them in this section:
"General Counsel." The General Counsel of the Commonwealth.
"Grounds to investigate." Information which would lead a
reasonable person to suspect that a crime is being or has been
committed.
"Independent counsel." A person appointed by the Special
Independent Prosecutor's Panel upon the request of a special
investigative counsel.
"Panel." The Special Independent Prosecutor's Panel
established under this chapter.
"Special investigative counsel." A person appointed by the
General Counsel to conduct a preliminary investigation under
this chapter.
SUBCHAPTER B
GENERAL PROVISIONS
Sec.
9311. Organization of panel.
9312. Preliminary investigation.
9313. Conduct of preliminary investigation.
9314. Determination that further investigation not warranted.
9315. Determination that further investigation is warranted.
9316. Contents of application.
9317. Disclosure of information.
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9318. Limitation on judicial review.
9319. Duties of panel.
§ 9311. Organization of panel.
(a) Composition and selection.--The Special Independent
Prosecutor's Panel shall be composed of one judge of the
Commonwealth Court and two judges, including senior judges, of
the courts of common pleas of the Commonwealth. The members of
the panel shall be chosen by lot. The procedure shall be
determined by and supervised by the Court Administrator of
Pennsylvania in the Administrative Office of Pennsylvania
Courts. The Administrative Office of Pennsylvania Courts shall
disclose to the public the membership of the panel.
(b) Term of members.--Each member of the panel shall hold
office for a term of three years. Judges who are members of the
panel and are required to retire under section 16 of Article V
of the Constitution of Pennsylvania shall also vacate their
positions on the panel unless assigned under Chapter 7 of the
Rules of Judicial Administration. A judge who is otherwise
removed or suspended from office shall automatically forfeit the
position held by that judge on the panel.
(c) Vacancies.--Any vacancy in the panel shall be filled
only for the remainder of the three-year period in which the
vacancy occurs and in the same manner as initial assignments to
the panel were made.
(d) Decisions by majority vote.--All decisions of the panel
shall be by majority vote of the members.
(e) Clerk.--The Prothonotary of Commonwealth Court shall
serve as the clerk of the panel and shall provide such services
as are needed by the panel.
(f) Restriction.--No member of the panel who participated in
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a function conferred on the panel under this chapter involving
an independent counsel shall be eligible to participate in any
judicial proceeding concerning a matter which involves the
independent counsel and which involves the exercise of the
independent counsel's official duties, regardless of whether the
independent counsel is still serving in that office.
§ 9312. Preliminary investigation.
(a) Preliminary investigation with respect to certain
covered persons.--The General Counsel shall appoint a special
investigative counsel to conduct a preliminary investigation in
accordance with this chapter whenever the General Counsel
receives information sufficient to constitute grounds to
investigate whether any person described in subsection (c) may
have committed any of the following:
(1) An offense which is classified higher than a
misdemeanor of the second degree.
(2) An offense which is classified higher than a summary
offense and which involves a breach of the public trust. This
paragraph includes a violation of the act of June 3, 1937
(P.L.1333, No.320), known as the Pennsylvania Election Code,
or the act of October 4, 1978 (P.L.883, No.170), referred to
as the Public Official and Employee Ethics Law.
(b) Preliminary investigation with respect to persons not
listed in subsection (c).--The Attorney General shall request
the General Counsel to appoint a special investigative counsel
to conduct a preliminary investigation under the jurisdiction
established or conferred under section 205(b) of the act of
October 15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act, and where the Attorney General determines that an
investigation or prosecution of the person, with respect to the
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information received, by the Attorney General or other officer
of the Attorney General's office may result in a personal,
financial or political conflict of interest. In addition, the
Attorney General may request the General Counsel to appoint a
special investigative counsel to conduct a preliminary
investigation where the Attorney General determines that an
investigation or prosecution of the person, with respect to the
information received, by the Attorney General or other officer
of the Attorney General's office may result in a personal,
financial or political conflict of interest.
(c) Persons to whom subsection (a) applies.--The persons
referred to in subsection (a) are as follows:
(1) The Attorney General, any Deputy Attorney General or
any individual working in the Attorney General's office who
is defined as a "public employee" under the Public Official
and Employee Ethics Law.
(2) Any individual who leaves any office or position
described in paragraph (1) during the incumbency of the
Attorney General with or under whom such individual served in
the office or position, plus one year after such incumbency,
but in no event longer than a period of three years after the
individual leaves the office or position.
(3) Any individual who held an office or position
described in paragraph (1) during the incumbency of one
Attorney General and who continued to hold the office or
position for not more than 90 days into the term of the next
Attorney General, during the one-year period after the
individual leaves the office or position.
(4) The chairman and treasurer of the principal campaign
committee seeking the election or reelection of the Attorney
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General, and any officer of that committee exercising
authority at the State level, during the incumbency of the
elected Attorney General.
(d) Examination of information to determine need for
preliminary investigation.--In determining under subsection (a)
whether grounds to investigate exist, the General Counsel shall
consider only the specificity of the information received and
the credibility of the source of the information. The General
Counsel shall determine whether grounds to investigate exist no
later than 30 days after the information is first received. If
within that 30-day period the General Counsel determines that
the information is not specific or is not from a credible
source, then the General Counsel shall close the matter. If
within that 30-day period the General Counsel determines that
the information is specific and from a credible source, the
General Counsel shall, upon making that determination, appoint a
special investigative counsel to commence a preliminary
investigation with respect to that information. If the General
Counsel is unable to determine within that 30-day period whether
the information is specific and from a credible source, the
General Counsel shall at the end of that 30-day period appoint a
special investigative counsel to commence a preliminary
investigation with respect to that information. If a special
investigative counsel is appointed, the special investigative
counsel may only accept the appointment when such appointment
would not conflict with the rules governing professional
conduct.
§ 9313. Conduct of preliminary investigation.
(a) In general.--A preliminary investigation conducted under
this chapter shall be of matters as the special investigative
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counsel considers appropriate in order to make a determination
under section 9314 (relating to determination that further
investigation not warranted) or 9315 (relating to determination
that further investigation is warranted) of whether further
investigation is warranted with respect to each potential
violation or allegation of a violation of criminal law. The
special investigative counsel shall make the determination no
later than 90 days after the preliminary investigation is
commenced. The special investigative counsel shall promptly
notify the panel of the date of the commencement of the
preliminary investigation.
(b) Limited authority of special investigative counsel.--
(1) In conducting preliminary investigations under this
chapter, the special investigative counsel shall have no
authority to convene grand juries, plea bargain, grant
immunity or issue subpoenas.
(2) The special investigative counsel shall not base a
determination under this chapter that information with
respect to a violation of criminal law by a person is not
specific and from a credible source upon a determination that
the person lacked the state of mind required for the
violation of criminal law. The special investigative counsel
shall not base a determination under this chapter that there
are no reasonable grounds to believe that further
investigation is warranted upon a determination that the
person lacked the state of mind required for the violation of
criminal law involved unless there is clear and convincing
evidence that the person lacked the required state of mind.
(c) Extension of time for preliminary investigation.--The
special investigative counsel may apply to the panel for a
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single extension, for a period of no more than 60 days, of the
90-day period referred to in subsection (a). The panel may, upon
a showing of good cause, grant the extension.
§ 9314. Determination that further investigation not warranted.
(a) Notification of panel.--If the special investigative
counsel upon completion of a preliminary investigation under
this chapter determines that there are no reasonable grounds to
believe that further investigation is warranted, the special
investigative counsel shall promptly so notify the panel, and
the panel shall have no power to appoint an independent counsel
with respect to the matters involved.
(b) Form of notification.--The notification shall contain a
summary of the information received and a summary of the results
of the preliminary investigation. The summary shall be
confidential and not subject to public disclosure, except that
the person who was the subject of the investigation may request
a copy of the summary from the panel.
§ 9315. Determination that further investigation is warranted.
(a) Application for appointment of independent counsel.--The
special investigative counsel shall apply to the panel for the
appointment of an independent counsel if:
(1) the special investigative counsel, upon completion
of a preliminary investigation under this chapter, determines
that there are reasonable grounds to believe that further
investigation is warranted; or
(2) the 90-day period referred to in section 9313(a)
(relating to conduct of preliminary investigation) and any
extension granted under section 9313(c) have elapsed and the
special investigative counsel has not filed a notification
with the panel under section 9314(a) (relating to
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determination that further investigation not warranted).
(b) Receipt of additional information.--If, after submitting
a notification under section 9314(a), the special investigative
counsel receives additional information sufficient to constitute
grounds to investigate the matters to which the notification
related, the special investigative counsel shall:
(1) Conduct an additional preliminary investigation as
the special investigative counsel considers appropriate for a
period of no more than 90 days after the date on which the
additional information is received.
(2) Otherwise comply with the provisions of this
subchapter with respect to the additional preliminary
investigation to the same extent as any other preliminary
investigation under this chapter.
§ 9316. Contents of application.
Any application for the appointment of an independent counsel
under this chapter shall contain sufficient information to
assist the panel in selecting an independent counsel and in
defining that independent counsel's prosecutorial jurisdiction
so that the independent counsel has adequate authority to fully
investigate and prosecute the subject matter and all matters
related to that subject matter.
§ 9317. Disclosure of information.
Except as otherwise provided in this chapter, no officer or
employee of the office of special investigative counsel or the
office of independent counsel may, without leave of the panel,
disclose to any individual outside the office of special
investigative counsel or office of independent counsel any
notification, application or any other document, material or
memorandum supplied to the panel under this chapter. Nothing in
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this chapter shall be construed as authorizing the withholding
of information from the General Assembly.
§ 9318. Limitation on judicial review.
The determination of the special investigative counsel under
this chapter to apply to the panel for the appointment of an
independent counsel shall not be reviewable in any court.
§ 9319. Duties of panel.
(a) Appointment and jurisdiction of independent counsel.--
(1) Upon receipt of an application, the panel shall
appoint an appropriate independent counsel and shall define
that independent counsel's prosecutorial jurisdiction. The
appointment shall occur no later than 30 days after the
receipt of the application.
(2) The panel shall appoint as independent counsel an
individual who has appropriate experience and who will
conduct the investigation and any prosecution in a prompt,
responsible and cost-effective manner. The panel shall seek
to appoint as independent counsel an individual who will
serve to the extent necessary to complete the investigation
and any prosecution without undue delay. The panel may not
appoint as an independent counsel any person who holds any
office of profit or trust with the Commonwealth. No person
who is serving as a special investigative counsel may be
appointed or serve as an independent counsel in the matter
for which they had been appointed to investigate as special
investigative counsel. If an independent counsel is
appointed, the independent counsel may only accept the
appointment when such appointment would not conflict with the
rules governing professional conduct.
(3) In defining the independent counsel's prosecutorial
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jurisdiction, the panel shall assure that the independent
counsel has adequate authority to fully investigate and
prosecute the subject matter with respect to which the
special investigative counsel has requested the appointment
of the independent counsel and all matters related to that
subject matter. Jurisdiction shall also include the authority
to investigate and prosecute the following offenses which may
arise out of the investigation with respect to which the
special investigative counsel's request was made:
(i) An offense classified higher than a misdemeanor
of the second degree.
(ii) An offense which is classified higher than a
summary offense and which involves a breach of the public
trust. This paragraph includes a violation of the act of
June 3, 1937 (P.L.1333, No.320), known as the
Pennsylvania Election Code, or the act of October 4, 1978
(P.L.883, No.170), referred to as the Public Official and
Employee Ethics Law.
(4) The panel shall disclose the identity of the
independent counsel upon appointment.
(b) Expansion of jurisdiction.--
(1) The panel upon the request of the General Counsel
may expand the prosecutorial jurisdiction of an independent
counsel. The expansion may be in lieu of the appointment of
another independent counsel.
(2) If the independent counsel discovers or receives
information about possible violations of criminal law by
persons as provided in section 9312 (relating to preliminary
investigation) which are not covered by the prosecutorial
jurisdiction of the independent counsel, the independent
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counsel may submit the information to the General Counsel. In
accordance with this subchapter, the General Counsel shall
appoint a special investigative counsel to conduct a
preliminary investigation of the information, except that the
preliminary investigation shall not exceed 30 days from the
date the information is received. In making the
determinations required by this subchapter, the special
investigative counsel shall give great weight to any
recommendations of the independent counsel.
(3) If the special investigative counsel determines,
after according great weight to the recommendations of the
independent counsel, that there are no reasonable grounds to
believe that further investigation is warranted, the special
investigative counsel shall promptly so notify the panel, and
the panel shall have no power to expand the jurisdiction of
the independent counsel or to appoint another independent
counsel with respect to the matters involved.
(4) The panel shall expand the jurisdiction of the
appropriate independent counsel to include the matters
involved or shall appoint another independent counsel to
investigate the matters if:
(i) the special investigative counsel determines
that there are reasonable grounds to believe that further
investigation is warranted; or
(ii) the 30-day period referred to in paragraph (2)
elapses without a notification to the panel that no
further investigation is warranted.
(5) If the independent counsel discovers or receives
information about possible violations of criminal law by
persons other than those provided for in section 9312 and
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which are not covered by the prosecutorial jurisdiction of
the independent counsel and a request for expansion under
this subsection has not been made by the General Counsel or
the request for expansion under this subsection has been
denied by the panel, the independent counsel shall submit the
information to the appropriate law enforcement authority.
(c) Return for further explanation.--Upon receipt of a
notification under this subchapter that there are no reasonable
grounds to believe that further investigation is warranted with
respect to information received under this chapter, the panel
shall have no authority to overrule this determination but may
return the matter to the special investigative counsel for
further explanation of the reasons for the determination.
(d) Vacancies.--If a vacancy in office arises by reason of
the resignation, death or removal of an independent counsel, the
panel shall appoint an independent counsel to complete the work
of the independent counsel whose resignation, death or removal
caused the vacancy, except that, in the case of a vacancy
arising by reason of the removal of an independent counsel, the
panel may appoint an acting independent counsel to serve until
any judicial review of the removal is completed.
SUBCHAPTER C
AUTHORITY AND DUTIES OF INDEPENDENT COUNSEL
Sec.
9331. Authorities.
9332. Compensation and travel expenses.
9333. Additional personnel.
9334. Assistance of Pennsylvania State Police.
9335. Referral of other matters to independent counsel.
9336. Dismissal of matters.
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9337. Reports by independent counsel.
9338. Independence from Office of Attorney General.
9339. Standards of conduct applicable to independent counsel,
persons serving in office of independent counsel and
their law firms.
9340. Custody of records of independent counsel.
9341. Cost controls and administrative support.
9342. Legislative oversight.
9343. Removal of independent counsel and termination of office.
9344. Audits.
9345. Relationship with Office of Attorney General.
9346. Venue.
§ 9331. Authorities.
Notwithstanding any other provision of law, an independent
counsel appointed under this chapter shall have, with respect to
all matters in the independent counsel's prosecutorial
jurisdiction established under this chapter, full power and
independent authority to exercise all investigative and
prosecutorial functions and powers of the Office of Attorney
General, the Attorney General and any other officer or employee
of the Office of Attorney General. Investigative and
prosecutorial functions and powers shall include, but are not
limited to:
(1) Conducting proceedings before grand juries and other
investigations.
(2) Participating in court proceedings and engaging in
any litigation, including civil and criminal matters, that
the independent counsel considers necessary.
(3) Appealing any decision of a court in any case or
proceeding in which the independent counsel participates in
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an official capacity.
(4) Reviewing all documentary evidence available from
any source.
(5) Determining whether to contest the assertion of any
testimonial privilege.
(6) Receiving appropriate security clearances and, if
necessary, contesting in court, including, where appropriate,
participating in an in camera proceeding, any claim of
privilege or attempt to withhold evidence on grounds of
security.
(7) Making applications to any State court for a grant
of immunity to any witness, consistent with applicable
statutory requirements, or for warrants, subpoenas or other
court orders and exercising the authority vested in the
Attorney General or a district attorney.
(8) Inspecting, obtaining or using the original or a
copy of any tax return in accordance with applicable statutes
and regulations.
(9) Initiating and conducting prosecutions in any court
of competent jurisdiction, framing and signing indictments,
filing information and handling all aspects of any case in
the name of the Commonwealth.
(10) Consulting with the district attorney for the
county in which any violation of law with respect to which
the independent counsel is appointed was alleged to have
occurred.
§ 9332. Compensation and travel expenses.
An independent counsel appointed under this chapter shall
receive compensation at the per diem rate equal to the annual
rate of basic pay payable to the Attorney General. An
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independent counsel and persons appointed under section 9333
(relating to additional personnel) shall be entitled to the
payment of travel expenses.
§ 9333. Additional personnel.
For the purposes of carrying out the duties of the office of
independent counsel, the independent counsel may appoint, fix
the compensation and assign the duties of the employees the
independent counsel considers necessary, including, but not
limited to, investigators, attorneys and necessary experts to
assist with the criminal investigation. The positions of these
employees are exempted from the competitive service. Employees
shall be compensated at levels not to exceed those payable for
comparable positions in the Office of Attorney General.
§ 9334. Assistance of Pennsylvania State Police.
(a) Carrying out functions.--An independent counsel may
request assistance from the Pennsylvania State Police in
carrying out the functions of the independent counsel, and the
Pennsylvania State Police shall provide that assistance, which
may include the use of the resources and personnel necessary to
perform the independent counsel's duties.
(b) Payment of and reports on expenditures of independent
counsel.--Upon the request of the Governor, the General Assembly
shall appropriate the necessary funds to the State Treasurer for
the use and operation in executing the duties and
responsibilities of the position of independent counsel. Upon
the request of the Governor, the General Assembly shall
appropriate the necessary funds to the Pennsylvania State Police
for costs incurred when rendering assistance to the independent
counsel as provided for under subsection (a). The State
Treasurer shall submit to the General Assembly, no later than 30
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days after the end of each fiscal year, a report on amounts paid
during that fiscal year for expenses of investigations and
prosecutions by independent counsel. Each report shall include a
statement of all payments made for activities of independent
counsel.
§ 9335. Referral of other matters to independent counsel.
An independent counsel may ask the panel to refer to the
independent counsel matters related to the independent counsel's
prosecutorial jurisdiction, and the panel may refer these
matters. If the Attorney General refers a matter to an
independent counsel on the Attorney General's own initiative,
the independent counsel may accept the referral if the matter
relates to the independent counsel's prosecutorial jurisdiction.
§ 9336. Dismissal of matters.
The independent counsel shall have full authority to dismiss
matters within the independent counsel's prosecutorial
jurisdiction without conducting an investigation or at any
subsequent time before prosecution.
§ 9337. Reports by independent counsel.
(a) Required reports.--An independent counsel shall:
(1) File with the panel, with respect to the six-month
period beginning on the date of his appointment and with
respect to each six-month period thereafter until the office
of that independent counsel terminates, a report which
identifies and explains major expenses, summarizes all other
expenses incurred by that office during the six-month period
with respect to which the report is filed and estimates
future expenses of that office.
(2) Before the termination of the independent counsel's
office under section 9343(b) (relating to removal of
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independent counsel and termination of office), file a final
report with the panel, setting forth fully and completely a
description of all prosecutions. All other information shall
be confidential and not subject to public disclosure.
(b) Disclosure of information in reports.--The panel may
release to the General Assembly, the Governor, the State
Treasurer, the public or any appropriate person the portions of
a report made under this section as the panel considers
appropriate. The panel shall make any orders as are appropriate
to protect the rights of any individual named in the report and
to prevent undue interference with any pending prosecution. The
panel may make any portion of a final report filed under
subsection (a)(2) available to any individual named in the
report for the purposes of receiving within a time limit set by
the panel any comments or factual information that the
individual may submit. The comments and factual information, in
whole or in part, may in the discretion of the panel be included
as an appendix to the final report.
§ 9338. Independence from Office of Attorney General.
Each independent counsel appointed under this chapter and the
persons appointed by that independent counsel under section 9333
(relating to additional personnel) are separate from and
independent of the Office of Attorney General.
§ 9339. Standards of conduct applicable to independent counsel,
persons serving in office of independent counsel and
their law firms.
(a) Restrictions on employment while independent counsel and
appointees are serving.--During the period in which an
independent counsel is serving under this chapter, the
independent counsel and any person associated with a firm with
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which the independent counsel is associated may not represent in
any matter any person involved in any investigation or
prosecution under this chapter. During the period in which any
person appointed by an independent counsel under section 9333
(relating to additional personnel) is serving in the office of
independent counsel, the person may not represent in any matter
any person involved in any investigation or prosecution under
this chapter.
(b) Postemployment restrictions on independent counsel and
appointees.--
(1) Each independent counsel and each person appointed
by that independent counsel under section 9333 may not for
three years following the termination of service under this
chapter of that independent counsel or appointed person, as
the case may be, represent any person in any matter if that
individual was the subject of an investigation or prosecution
conducted by that independent counsel under this chapter.
(2) Each independent counsel and each person appointed
by that independent counsel under section 9333 may not for
one year following the termination of service under this
chapter of that independent counsel or appointed person, as
the case may be, represent any person in any matter involving
any investigation or prosecution under this chapter.
(c) One-year ban on representation by members of firms of
independent counsel.--Any person who is associated with a firm
with which an independent counsel is associated or becomes
associated after termination of service of that independent
counsel under this chapter may not for one year following the
termination represent any person in any matter involving any
investigation or prosecution under this chapter.
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(d) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Associated with a firm." A person who is an officer,
director, partner or other member or employee of a law firm.
"Firm." A law firm, whether organized as a partnership or
corporation.
§ 9340. Custody of records of independent counsel.
(a) Transfer of records.--Upon termination of the office of
independent counsel, that independent counsel shall transfer to
the Bureau of Archives and History of the Pennsylvania
Historical and Museum Commission all records which have been
created or received by that office. Before this transfer, the
independent counsel shall clearly identify which of these
records are subject to the Pennsylvania Rules of Criminal
Procedure as grand jury materials.
(b) Maintenance, use and disposal of records.--Records
transferred to the Bureau of Archives and History under this
section shall be maintained, used and disposed of as provided by
law.
§ 9341. Cost controls and administrative support.
(a) Cost controls.--An independent counsel shall:
(1) Conduct all activities with due regard for expense.
(2) Authorize only reasonable and lawful expenditures.
(3) Promptly upon taking office assign to a specific
employee the duty of certifying that expenditures of the
independent counsel are reasonable and made in accordance
with law.
(b) Office of Administration policies.--An independent
counsel shall comply with the established policies of the Office
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of Administration of the Governor respecting expenditures of
funds, except to the extent that compliance would be
inconsistent with the purposes of this chapter.
§ 9342. Legislative oversight.
(a) Oversight of conduct of independent counsel.--An
independent counsel appointed under this chapter shall submit to
the General Assembly a report detailing all moneys expended as
required under section 9337(a)(1) (relating to reports by
independent counsel). In addition, the independent counsel shall
submit annually a report on the activities of the independent
counsel, including a description of the progress of any
investigation or prosecution conducted by the independent
counsel. The report may omit any matter that in the judgment of
the independent counsel should be kept confidential but shall
provide information adequate to justify the expenditures that
the office of the independent counsel has made.
(b) Information relating to impeachment.--An independent
counsel shall advise the House of Representatives of any
substantial and credible information which the independent
counsel receives in carrying out the independent counsel's
responsibilities under this chapter that may constitute grounds
for an impeachment. Nothing in this chapter shall prevent the
General Assembly or either house thereof from obtaining
information in the course of an impeachment proceeding.
§ 9343. Removal of independent counsel and termination of
office.
(a) Removal, report on removal and termination.--
(1) An independent counsel appointed under this chapter
may be removed from office only by the personal action of the
General Counsel and only for good cause, physical disability,
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mental incapacity or any other condition that substantially
impairs the performance of the independent counsel's duties.
For purposes of this paragraph, the term "good cause"
includes, but is not limited to, violations of any ethical
rules governing the independent counsel, the Attorney General
or district attorneys.
(2) If an independent counsel is removed from office,
the General Counsel shall promptly submit to the panel, the
Judiciary Committee of the Senate and the Judiciary Committee
of the House of Representatives a report specifying the facts
found and the ultimate grounds for the removal. The
committees may make available to the public the report,
except that each committee may, if necessary to protect the
rights of any individual named in the report or to prevent
undue interference with any pending prosecution, postpone or
refrain from publishing any or all of the report. The panel
may release any or all of the report in accordance with
section 9337(b) (relating to reports by independent counsel).
(3) An independent counsel removed from office may
obtain judicial review of the removal in a civil action
commenced in the Commonwealth Court. The independent counsel
may be reinstated or granted other appropriate relief by
order of the Commonwealth Court. A member of the panel may
not hear or determine any such civil action or any appeal of
a decision in any such civil action.
(b) Termination of office.--
(1) An office of independent counsel shall terminate
when the independent counsel:
(i) notifies the panel that the investigation of all
matters within the prosecutorial jurisdiction of the
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independent counsel or accepted by the independent
counsel, and any resulting prosecutions, have been
completed; and
(ii) files a final report in compliance with section
9337.
(2) The panel shall determine on its own motion whether
termination is appropriate under this subsection no later
than two years after the appointment of an independent
counsel or the reported expenditures of the independent
counsel have reached $2,000,000, whichever occurs first, and
at the end of each succeeding one-year period.
§ 9344. Audits.
By December 31 of each year, an independent counsel shall
prepare a statement of expenditures for the fiscal year that
ended on the immediately preceding June 30. An independent
counsel whose office is terminated prior to the end of the
fiscal year shall prepare a statement of expenditures within 90
days of the date on which the office is terminated. The Auditor
General shall audit each statement and report the results of
each audit to the appropriate committees of the General Assembly
no later than March 31 of the year following the submission of
the statement.
§ 9345. Relationship with Office of Attorney General.
Whenever a matter is in the prosecutorial jurisdiction of an
independent counsel or has been accepted by an independent
counsel under section 9335 (relating to referral of other
matters to independent counsel), the Office of Attorney General,
the Attorney General, all other officers and employees of the
Office of Attorney General and any district attorney shall
suspend all investigations and proceedings regarding that matter
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and shall turn over to the independent counsel all materials,
files and other data relating to that matter.
§ 9346. Venue.
The proper venue for all prosecutions conducted by the
independent counsel shall be determined in accordance with the
Pennsylvania Rules of Criminal Procedure. For the purposes of
convenience and fairness, the panel may, however, set the venue
in any other county on its own motion or at the request of the
independent counsel or on petition of the defendant.
SUBCHAPTER D
MISCELLANEOUS PROVISIONS
Sec.
9351. Severability of chapter.
9352. Expiration of chapter.
§ 9351. Severability of chapter.
The provisions of this chapter are severable. If any
provision of this chapter or its application to any person or
circumstance is held invalid, the invalidity shall not affect
other provisions or applications of this chapter which can be
given effect without the invalid provision or application.
§ 9352. Expiration of chapter.
This chapter shall expire five years after the date of the
enactment of this chapter, except with respect to any matters
pending before an independent counsel that in the judgment of
the independent counsel require continuation. Matters shall be
continued until the independent counsel determines the matters
are completed.]
Section 2. Title 18 is amended by adding a chapter to read:
CHAPTER 93A
INDEPENDENT COUNSEL
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Subchapter
A. Preliminary Provisions
B. General Provisions
C. Authority and Duties of Independent Counsel
D. Miscellaneous Provisions
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
93A01. Scope of chapter.
93A02. Definitions.
93A03. Applicability.
§ 93A01. Scope of chapter.
This chapter relates to independent counsel authorization.
§ 93A02. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Constitution." The Constitution of Pennsylvania.
"Executive agency." As defined in section 102 of the act of
October 15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act.
" General Counsel. " The General Counsel of the Commonwealth.
" Grounds to investigate. " Information which would lead a
reasonable person to suspect that a crime is being or has been
committed.
"Independent agency." As defined in section 102 of the act
of October 15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act.
" Independent counsel. " A person appointed by the special
independent counsel's panel upon the request of a special
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investigative counsel.
" Panel. " The special independent counsel's panel established
under this chapter.
"Regulation." A regulation as defined under section 3 of the
act of June 25, 1982 (P.L.633, No.181), known as the Regulatory
Review Act.
" Special investigative counsel. " A person appointed by the
General Counsel to conduct a preliminary investigation under
this chapter.
"Statute." A statute as defined under 1 Pa.C.S. § 1991
(relating to definitions).
§ 93A03. Applicability.
This chapter shall not apply to a matter pending before an
independent counsel before February 19, 2003.
SUBCHAPTER B
GENERAL PROVISIONS
Sec.
93A11. Organization of panel.
93A12. Preliminary investigation.
93A13. Conduct of preliminary investigation.
93A14. Determination that further investigation not warranted.
93A15. Determination that further investigation is warranted.
93A15.1. Determination that defense of a regulation, statute or
constitutional provision is warranted.
93A16. Contents of application.
93A17. Disclosure of information.
93A18. Limitation on judicial review.
93A19. Duties of panel.
§ 93A11. Organization of panel.
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(a) Composition and selection.--The panel shall be composed
of one judge of the Commonwealth Court, one judge of the
Superior Court and three judges, including senior judges, of the
courts of common pleas of the Commonwealth. The members of the
panel shall be chosen by lot. The procedure shall be determined
by and supervised by the Court Administrator of Pennsylvania in
the Administrative Office of Pennsylvania Courts. The
Administrative Office of Pennsylvania Courts shall disclose to
the public the membership of the panel.
(b) Term of members.--Each member of the panel shall hold
office for a term of three years. Judges who are members of the
panel and are required to retire under section 16 of Article V
of the Constitution of Pennsylvania shall also vacate their
positions on the panel unless assigned under 201 Pa. Code
Chapter 7 (relating to assignment of judges). A judge who is
otherwise removed or suspended from office shall automatically
forfeit the position held by that judge on the panel.
(c) Vacancies.--Any vacancy in the panel shall be filled
only for the remainder of the three-year period in which the
vacancy occurs and in the same manner as initial assignments to
the panel were made.
(d) Decisions by super-majority vote.--All decisions of the
panel shall be by vote of at least four of the members.
(e) Clerk.--The Prothonotary of Commonwealth Court shall
serve as the clerk of the panel and shall provide such services
as are needed by the panel.
(f) Restriction.--No member of the panel who participated in
a function conferred on the panel under this chapter involving
an independent counsel shall be eligible to participate in any
judicial proceeding concerning a matter which involves the
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independent counsel and which involves the exercise of the
independent counsel's official duties, regardless of whether the
independent counsel is still serving in that office.
§ 93A12. Preliminary investigation.
(a) Preliminary investigation with respect to certain
covered persons.--The General Counsel shall request in writing
that the panel appoint a special investigative counsel to
conduct a preliminary investigation in accordance with this
chapter whenever the General Counsel receives information
sufficient to constitute grounds to investigate whether any
person described in subsection (c) may have committed any of the
following:
(1) An offense which is classified higher than a
misdemeanor of the second degree.
(2) An offense which is classified higher than a summary
offense and which involves a breach of the public trust. This
paragraph includes a violation of the act of June 3, 1937
(P.L.1333, No.320) , known as the Pennsylvania Election Code,
or the act of October 4, 1978 (P.L.883, No.170) , referred to
as the Public Official and Employee Ethics Law.
(b) Preliminary investigation with respect to persons not
listed in subsection (c). The Attorney General shall request in
writing that the panel appoint a special investigative counsel
to conduct a preliminary investigation under the jurisdiction
established or conferred under section 205(b) of the act of
October 15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act, and where the Attorney General determines that an
investigation or prosecution of the person, with respect to the
information received, by the Attorney General or other officer
of the Attorney General's office may result in a personal,
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financial or political conflict of interest. In addition, the
Attorney General may request in writing that the panel appoint a
special investigative counsel to conduct a preliminary
investigation where the Attorney General determines that an
investigation or prosecution of the person, with respect to the
information received, by the Attorney General or other officer
of the Attorney General's office may result in a personal,
financial or political conflict of interest.
(b.1) Preliminary investigation at request of General
Assembly.--
(1) The Speaker of the House of Representatives may
request in writing that the panel appoint a special
investigative counsel to conduct a preliminary investigation
in accordance with this chapter if the Speaker receives
information sufficient to constitute grounds to investigate
whether a member of the House of Representatives may have
committed any of the following:
(i) An offense which is classified higher than a
misdemeanor of the second degree.
(ii) An offense which is classified higher than a
summary offense and which involves a breach of the public
trust. This paragraph shall include a violation of any of
the following:
(A) The Pennsylvania Election Code.
(B) The Public Official and Employee Ethics Law.
(2) The President pro tempore of the Senate may request
in writing that the panel appoint a special investigative
counsel to conduct a preliminary investigation in accordance
with this chapter if the President pro tempore receives
information sufficient to constitute grounds to investigate
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whether a member of the Senate may have committed any of the
following:
(i) An offense which is classified higher than a
misdemeanor of the second degree.
(ii) An offense which is classified higher than a
summary offense and which involves a breach of the public
trust. This paragraph shall include a violation of any of
the following:
(A) The Pennsylvania Election Code.
(B) The Public Official and Employee Ethics Law.
(3) The President pro tempore of the Senate and the
Speaker of the House of Representatives may request in
writing that the panel appoint a special investigative
counsel to conduct a preliminary investigation in accordance
with this chapter if they jointly determine that a pending
judicial proceeding challenges the constitutionality,
legality, validity or enforceability of all or part of a
regulation or statute or a provision of the Constitution of
Pennsylvania and the Attorney General or an executive agency
or an independent agency will not defend the regulation,
statute or constitutional provision in the proceeding.
(c) Persons to whom subsection (a) applies.--The persons
referred to in subsection (a) are as follows:
(1) The Attorney General, any deputy attorney general or
any individual working in the Attorney General's office who
is defined as a "public employee" under the Public Official
and Employee Ethics Law.
(2) Any individual who leaves any office or position
described in paragraph (1) during the incumbency of the
Attorney General with or under whom such individual served in
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the office or position, plus one year after such incumbency,
but in no event longer than a period of three years after the
individual leaves the office or position.
(3) Any individual who held an office or position
described in paragraph (1) during the incumbency of one
Attorney General and who continued to hold the office or
position for not more than 90 days into the term of the next
Attorney General, during the one-year period after the
individual leaves the office or position.
(4) The chairman and treasurer of the principal campaign
committee seeking the election or reelection of the Attorney
General, and any officer of that committee exercising
authority at the State level, during the incumbency of the
elected Attorney General.
(d) Examination of information to determine need for
preliminary investigation.--In determining under subsection (a)
whether grounds to investigate exist, the General Counsel shall
consider only the specificity of the information received and
the credibility of the source of the information. The General
Counsel shall determine whether grounds to investigate exist no
later than 30 days after the information is first received. If
within that 30-day period the General Counsel determines that
the information is not specific or is not from a credible
source, then the General Counsel shall close the matter. If
within that 30-day period the General Counsel determines that
the information is specific and from a credible source, the
General Counsel shall, upon making that determination, request
in writing that the panel appoint a special investigative
counsel to commence a preliminary investigation with respect to
that information. If the General Counsel is unable to determine
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within that 30-day period whether the information is specific
and from a credible source, the General Counsel shall, at the
end of that 30-day period, request in writing that the panel
appoint a special investigative counsel to commence a
preliminary investigation with respect to that information. If a
special investigative counsel is appointed, the special
investigative counsel may only accept the appointment when such
appointment would not conflict with the rules governing
professional conduct.
§ 93A13. Conduct of preliminary investigation.
(a) In general.--A preliminary investigation conducted under
this chapter shall be of matters as the special investigative
counsel considers appropriate in order to make a determination
under section 93A14 (relating to determination that further
investigation not warranted) or 93A15 (relating to determination
that further investigation is warranted) of whether further
investigation is warranted with respect to each potential
violation or allegation of a violation of criminal law or under
section 93A15.1 (relating to determination that defense of a
regulation, statute or constitutional provision is warranted) of
whether the defense of a regulation, statute or constitutional
provision is warranted. The special investigative counsel shall
make the determination no later than 90 days after the
preliminary investigation is commenced. The special
investigative counsel shall promptly notify the panel of the
date of the commencement of the preliminary investigation.
(b) Limited authority of special investigative counsel.--
(1) In conducting preliminary investigations under this
chapter, the special investigative counsel shall have no
authority to convene grand juries, plea bargain, grant
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immunity or issue subpoenas.
(2) The special investigative counsel shall not base a
determination under this chapter that information with
respect to a violation of criminal law by a person is not
specific and from a credible source upon a determination that
the person lacked the state of mind required for the
violation of criminal law. The special investigative counsel
shall not base a determination under this chapter that there
are no reasonable grounds to believe that further
investigation is warranted upon a determination that the
person lacked the state of mind required for the violation of
criminal law involved unless there is clear and convincing
evidence that the person lacked the required state of mind.
(c) Extension of time for preliminary investigation.--The
special investigative counsel may apply to the panel for a
single extension, for a period of no more than 60 days, of the
90-day period referred to in subsection (a). The panel may, upon
a showing of good cause, grant the extension.
§ 93A14. Determination that further investigation not
warranted.
(a) Notification of panel.--If the special investigative
counsel, upon completion of a preliminary investigation under
this chapter, determines that there are no reasonable grounds to
believe that further investigation is warranted, the special
investigative counsel shall promptly so notify the panel, and
the panel shall have no power to appoint an independent counsel
with respect to the matters involved.
(b) Form of notification.--The notification shall contain a
summary of the information received and a summary of the results
of the preliminary investigation. The summary shall be
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confidential and not subject to public disclosure, except that
the person who was the subject of the investigation may request
a copy of the summary from the panel.
§ 93A15. Determination that further investigation is warranted.
(a) Application for appointment of independent counsel.--The
special investigative counsel shall apply to the panel for the
appointment of an independent counsel if:
(1) the special investigative counsel, upon completion
of a preliminary investigation under this chapter, determines
that there are reasonable grounds to believe that further
investigation is warranted; or
(2) the 90-day period referred to in section 93A13(a)
(relating to conduct of preliminary investigation) and any
extension granted under section 93A13(c) have elapsed and the
special investigative counsel has not filed a notification
with the panel under section 93A14(a) (relating to
determination that further investigation not warranted).
(b) Receipt of additional information.--If, after submitting
a notification under section 93A14(a), the special investigative
counsel receives additional information sufficient to constitute
grounds to investigate the matters to which the notification
related, the special investigative counsel shall:
(1) Conduct an additional preliminary investigation as
the special investigative counsel considers appropriate for a
period of no more than 90 days after the date on which the
additional information is received.
(2) Otherwise comply with the provisions of this
subchapter with respect to the additional preliminary
investigation to the same extent as any other preliminary
investigation under this chapter.
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§ 93A15.1. Determination that defense of a regulation, statute
or constitutional provision is warranted.
(a) Notification of panel.--If the special investigative
counsel, upon completion of a preliminary investigation under
this chapter, determines that there are no reasonable grounds to
believe that a pending judicial proceeding challenges the
constitutionality, legality, validity or enforceability of all
or part of a regulation or statute or provision of the
Constitution of Pennsylvania and the Attorney General and the
executive branch of government will not defend the regulation,
statute or constitutional provision, the special investigative
counsel shall promptly notify the panel, and the panel shall
have no power to appoint an independent counsel with respect to
the matters involved. The notification shall contain a summary
of the information received and a summary of the results of the
preliminary investigation. The summary shall be confidential and
not subject to public disclosure.
(b) Application for appointment.--The special investigative
counsel shall apply to the panel for the appointment of an
independent counsel if either of the following apply:
(1) The special investigative counsel, upon completion
of a preliminary investigation under this chapter, determines
that there are reasonable grounds to believe a pending
judicial proceeding challenges the constitutionality,
legality, validity or enforceability of all or part of a
regulation or statute or provision of the Constitution of
Pennsylvania and the Attorney General or an executive agency
or an independent agency will not defend the regulation,
statute or constitutional provision in the proceeding.
(2) The 90-day period referred to under section 93A13(a)
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(relating to conduct of preliminary investigation) and any
extension granted under section 93A13(c) have elapsed and the
special investigative counsel has not filed a notification
with the panel under section 93A14(a) (relating to
determination that further investigation not warranted).
(c) Receipt of additional information.--If, after submitting
a notification under subsection (a), the special investigative
counsel receives additional information sufficient to constitute
grounds to recommend appointment of an independent counsel as to
the matters to which the notification related, the special
investigative counsel shall:
(1) Conduct an additional preliminary investigation as
the special investigative counsel considers appropriate for a
period of no more than 90 days after the date on which the
additional information is received.
(2) Otherwise comply with the provisions of this
subchapter with respect to the additional preliminary
investigation to the same extent as any other preliminary
investigation under this chapter.
§ 93A16. Contents of application.
Any application for the appointment of an independent counsel
under this chapter shall contain sufficient information to
assist the panel in selecting an independent counsel and in
defining that independent counsel's prosecutorial jurisdiction
so that the independent counsel has adequate authority to fully
investigate and prosecute the subject matter and all matters
related to that subject matter.
§ 93A17. Disclosure of information.
Except as otherwise provided in this chapter, no officer or
employee of the office of special investigative counsel or the
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office of independent counsel may, without leave of the panel,
disclose to any individual outside the office of special
investigative counsel or office of independent counsel any
notification, application or any other document, material or
memorandum supplied to the panel under this chapter. Nothing in
this chapter shall be construed as authorizing the withholding
of information from the General Assembly.
§ 93A18. Limitation on judicial review.
The determination of the special investigative counsel under
this chapter to apply to the panel for the appointment of an
independent counsel shall not be reviewable in any court.
§ 93A19. Duties of panel.
(a) Appointment and jurisdiction of prosecutorial
independent counsel.--
(1) Upon receipt of an application for the appointment
of a prosecutorial independent counsel, the panel shall
appoint an appropriate independent counsel and shall define
that independent counsel's prosecutorial jurisdiction. The
appointment shall occur no later than 30 days after the
receipt of the application.
(2) The panel shall appoint as independent counsel an
individual who has appropriate experience and who will
conduct the investigation and any prosecution in a prompt,
responsible and cost-effective manner. The panel shall seek
to appoint as independent counsel an individual who will
serve to the extent necessary to complete the investigation
and any prosecution without undue delay. The panel may not
appoint as an independent counsel any person who holds any
office of profit or trust with the Commonwealth. No person
who is serving as a special investigative counsel may be
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appointed or serve as an independent counsel in the matter
for which they had been appointed to investigate as special
investigative counsel. If an independent counsel is
appointed, the independent counsel may only accept the
appointment when such appointment would not conflict with the
rules governing professional conduct.
(3) In defining the independent counsel's prosecutorial
jurisdiction, the panel shall assure that the independent
counsel has adequate authority to fully investigate and
prosecute the subject matter with respect to which the
special investigative counsel has requested the appointment
of the independent counsel and all matters related to that
subject matter. Jurisdiction shall also include the authority
to investigate and prosecute the following offenses which may
arise out of the investigation with respect to which the
special investigative counsel's request was made:
(i) An offense classified higher than a misdemeanor
of the second degree.
(ii) An offense which is classified higher than a
summary offense and which involves a breach of the public
trust. This paragraph includes a violation of the act of
June 3, 1937 (P.L.1333, No.320) , known as the
Pennsylvania Election Code, or the act of October 4, 1978
(P.L.883, No.170) , referred to as the Public Official and
Employee Ethics Law.
(4) The panel shall disclose the identity of the
independent counsel upon appointment.
(a.1) Appointment and jurisdiction of independent counsel in
defense of a regulation, statute or constitutional provision.--
(1) Upon receipt of an application for appointment of an
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independent counsel in defense of regulation, statute or
constitutional provision, the panel shall appoint an
appropriate independent counsel and shall define the
independent counsel's jurisdiction. The appointment shall
occur no later than 30 days after the receipt of the
application.
(2) The panel shall appoint as independent counsel an
individual who has appropriate experience and who will
conduct the defense in a prompt, responsible and cost-
effective manner. The panel shall seek to appoint as
independent counsel an individual who will serve to the
extent necessary to complete the defense without undue delay.
The panel may not appoint as an independent counsel any
person who holds any office of profit or trust with the
Commonwealth. No person who is serving as a special
investigative counsel may be appointed or serve as an
independent counsel in the matter for which they had been
appointed to investigate as special investigative counsel. If
an independent counsel is appointed, the independent counsel
may only accept the appointment when such appointment would
not conflict with the rules governing professional conduct.
(3) In defining the independent counsel's jurisdiction,
the panel shall assure that the independent counsel has
adequate authority to fully defend the subject matter with
respect to which the special investigative counsel has
requested the appointment of the independent counsel and all
matters related to that subject matter.
(4) The panel shall disclose the identity of the
independent counsel upon appointment.
(b) Expansion of jurisdiction.--
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(1) The panel, upon the request of the General Counsel,
may expand the jurisdiction of an independent counsel. The
expansion may be in lieu of the appointment of another
independent counsel.
(2) If the independent counsel discovers or receives
information about possible violations of criminal law by
persons as provided in section 93A12 (relating to preliminary
investigation) which are not covered by the prosecutorial
jurisdiction of the independent counsel, the independent
counsel may submit the information to the panel. In
accordance with this subchapter, the panel shall appoint a
special investigative counsel to conduct a preliminary
investigation of the information, except that the preliminary
investigation shall not exceed 30 days from the date the
information is received. In making the determinations
required by this subchapter, the special investigative
counsel shall give great weight to any recommendations of the
independent counsel.
(3) If the special investigative counsel determines,
after according great weight to the recommendations of the
independent counsel, that there are no reasonable grounds to
believe that further investigation is warranted, the special
investigative counsel shall promptly so notify the panel, and
the panel shall have no power to expand the jurisdiction of
the independent counsel or to appoint another independent
counsel with respect to the matters involved.
(4) The panel shall expand the jurisdiction of the
appropriate independent counsel to include the matters
involved or shall appoint another independent counsel to
investigate the matters if:
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(i) the special investigative counsel determines
that there are reasonable grounds to believe that further
investigation is warranted; or
(ii) the 30-day period referred to in paragraph (2)
elapses without a notification to the panel that no
further investigation is warranted.
(5) If the independent counsel discovers or receives
information about possible violations of criminal law by
persons other than those provided for in section 93A12 and
which are not covered by the prosecutorial jurisdiction of
the independent counsel and a request for expansion under
this subsection has not been made by the panel or the request
for expansion under this subsection has been denied by the
panel, the independent counsel shall submit the information
to the appropriate law enforcement authority.
(6) The following shall apply:
(i) If the independent counsel discovers or receives
information about a possible pending judicial proceeding
which challenges the constitutionality, legality,
validity or enforceability of all or part of a regulation
or statute or provision of the Constitution of
Pennsylvania where the Attorney General or an executive
agency or an independent agency will not defend the
regulation, statute or constitutional provision in the
proceeding, the independent counsel shall submit the
information to the panel.
(ii) In accordance with this subchapter, the panel
shall appoint a special investigative counsel to conduct
a preliminary investigation of the information, except
that the preliminary investigation may not exceed 30 days
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from the date the information is received. In making the
determinations required under this subchapter, the
special investigative counsel shall give great weight to
any recommendations of the independent counsel.
(iii) If the special investigative counsel
determines, after according great weight to the
recommendations of the independent counsel, that there
are no reasonable grounds to believe that an expansion of
jurisdiction is warranted, the special investigative
counsel shall promptly notify the panel and the panel
shall have no power to expand the jurisdiction of the
independent counsel or to appoint another independent
counsel with respect to the matters involved. The panel
shall expand the jurisdiction of the appropriate
independent counsel to include the matters involved or
shall appoint another independent counsel to investigate
the matters if either of the following apply:
(A) The special investigative counsel determines
that there are reasonable grounds to believe that a
pending judicial proceeding challenges the
constitutionality, legality, validity or
enforceability of all or part of a Pennsylvania
regulation or statute or provision of the
Constitution and the Attorney General or an executive
agency or an independent agency will not defend the
regulation, statute or constitutional provision in
the proceeding.
(B) The 30-day period under subparagraph (ii)
elapses without a notification to the panel that no
further investigation is warranted.
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(c) Return for further explanation.--Upon receipt of a
notification under this subchapter that there are no reasonable
grounds to believe that further investigation is warranted with
respect to information received under this chapter, the panel
shall have no authority to overrule this determination but may
return the matter to the special investigative counsel for
further explanation of the reasons for the determination.
(d) Vacancies.--If a vacancy in office arises by reason of
the resignation, death or removal of an independent counsel, the
panel shall appoint an independent counsel to complete the work
of the independent counsel whose resignation, death or removal
caused the vacancy, except that, in the case of a vacancy
arising by reason of the removal of an independent counsel, the
panel may appoint an acting independent counsel to serve until
any judicial review of the removal is completed.
SUBCHAPTER C
AUTHORITY AND DUTIES OF INDEPENDENT COUNSEL
Sec.
93A31. Authorities of prosecutorial independent counsel.
93A31.1. Authorities of independent counsel in defense of
regulation, statute or constitutional provision.
93A31.2. Standing of independent counsel in defense of
regulation, statute or constitutional provision.
93A31.3. Privileges and immunities.
93A32. Compensation and travel expenses.
93A33. Additional personnel.
93A34. Assistance of Pennsylvania State Police.
93A35. Referral of other matters to independent counsel.
93A36. Dismissal of matters.
93A37. Reports by independent counsel.
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93A38. Independence from Office of Attorney General.
93A39. Standards of conduct applicable to independent counsel,
persons serving in office of independent counsel and
their law firms.
93A40. Custody of records of independent counsel.
93A41. Cost controls and administrative support.
93A42. Legislative oversight.
93A43. Removal of independent counsel and termination of
office.
93A44. Audits.
93A45. Relationship with Office of Attorney General.
93A46. Venue.
§ 93A31. Authorities of prosecutorial independent counsel.
Notwithstanding any other provision of law, an independent
counsel appointed under this chapter shall have, with respect to
all matters in the independent counsel's prosecutorial
jurisdiction established under this chapter, full power and
independent authority to exercise all investigative and
prosecutorial functions and powers of the Office of Attorney
General, the Attorney General and any other officer or employee
of the Office of Attorney General. Investigative and
prosecutorial functions and powers shall include, but are not
limited to:
(1) Conducting proceedings before grand juries and other
investigations.
(2) Participating in court proceedings and engaging in
any litigation, including civil and criminal matters, that
the independent counsel considers necessary.
(3) Appealing any decision of a court in any case or
proceeding in which the independent counsel participates in
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an official capacity.
(4) Reviewing all documentary evidence available from
any source.
(5) Determining whether to contest the assertion of any
testimonial privilege.
(6) Receiving appropriate security clearances and, if
necessary, contesting in court, including, where appropriate,
participating in an in camera proceeding, any claim of
privilege or attempt to withhold evidence on grounds of
security.
(7) Making applications to any State court for a grant
of immunity to any witness, consistent with applicable
statutory requirements, or for warrants, subpoenas or other
court orders and exercising the authority vested in the
Attorney General or a district attorney.
(8) Inspecting, obtaining or using the original or a
copy of any tax return in accordance with applicable statutes
and regulations.
(9) Initiating and conducting prosecutions in any court
of competent jurisdiction, framing and signing indictments,
filing information and handling all aspects of any case in
the name of the Commonwealth.
(10) Consulting with the district attorney for the
county in which any violation of law with respect to which
the independent counsel is appointed was alleged to have
occurred.
§ 93A31.1. Authorities of independent counsel in defense of
regulation, statute or constitutional provision.
Notwithstanding any other provision of law, an independent
counsel, in defense of a regulation, statute or constitutional
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provision appointed under this chapter, shall have, with respect
to all matters in the independent counsel's jurisdiction
established under this chapter, full power and independent
authority to exercise all functions and powers of the Office of
Attorney General, the Attorney General and any other officer or
employee of the Office of Attorney General. Powers shall
include, but not be limited to:
(1) Participating in court proceedings and engaging in
any litigation, including civil and criminal matters, that
the independent counsel considers necessary.
(2) Appealing any decision of a court in any case or
proceeding in which the independent counsel participates in
an official capacity.
(3) Reviewing all documentary evidence available from
any source.
(4) Determining whether to contest the assertion of any
testimonial privilege.
§ 93A31.2. Standing of independent counsel in defense of
regulation, statute or constitutional provision.
An independent counsel appointed under this chapter in
defense of a regulation, statute or constitutional provision
shall have standing to intervene as a party in any judicial
proceeding on behalf of the Commonwealth consistent with the
panel's grant of jurisdiction under section 93A19(a.1) (relating
to duties of panel).
§ 93A31.3. Privileges and immunities.
Appointment of a special investigative counsel or independent
counsel may not constitute a waiver of sovereign, governmental,
legislative or other applicable privilege or immunity. Special
investigative counsel or independent counsel shall have no power
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to waive sovereign, governmental, legislative or any other
applicable privilege or immunity.
§ 93A32. Compensation and travel expenses.
An independent counsel appointed under this chapter shall
receive compensation at the per diem rate equal to the annual
rate of basic pay payable to the Attorney General. An
independent counsel and persons appointed under section 93A33
(relating to additional personnel) shall be entitled to the
payment of travel expenses.
§ 93A33. Additional personnel.
For the purposes of carrying out the duties of the office of
independent counsel, the independent counsel may appoint, fix
the compensation and assign the duties of the employees the
independent counsel considers necessary, including, but not
limited to, investigators, attorneys and necessary experts to
assist with the criminal investigation. The positions of these
employees are exempted from the competitive service. Employees
shall be compensated at levels not to exceed those payable for
comparable positions in the Office of Attorney General.
§ 93A34. Assistance of Pennsylvania State Police.
(a) Carrying out functions.--An independent counsel with
prosecutorial jurisdiction may request assistance from the
Pennsylvania State Police in carrying out the functions of the
independent counsel, and the Pennsylvania State Police shall
provide that assistance, which may include the use of the
resources and personnel necessary to perform the independent
counsel's duties.
(b) Payment of and reports on expenditures of independent
counsel.--Upon the request of the Governor, the General Assembly
shall appropriate the necessary funds to the State Treasurer for
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the use and operation in executing the duties and
responsibilities of the position of independent counsel. Upon
the request of the Governor, the General Assembly shall
appropriate the necessary funds to the Pennsylvania State Police
for costs incurred when rendering assistance to the independent
counsel as provided for under subsection (a). The State
Treasurer shall submit to the General Assembly, no later than 30
days after the end of each fiscal year, a report on amounts paid
during that fiscal year for expenses of investigations and
prosecutions by independent counsel. Each report shall include a
statement of all payments made for activities of independent
counsel.
§ 93A35. Referral of other matters to independent counsel.
An independent counsel may ask the panel to refer to the
independent counsel matters related to the independent counsel's
prosecutorial jurisdiction, and the panel may refer these
matters. If the Attorney General refers a matter to an
independent counsel on the Attorney General's own initiative,
the independent counsel may accept the referral if the matter
relates to the independent counsel's prosecutorial jurisdiction.
§ 93A36. Dismissal of matters.
The independent counsel shall have full authority to dismiss
matters within the independent counsel's prosecutorial
jurisdiction without conducting an investigation or at any
subsequent time before prosecution.
§ 93A37. Reports by independent counsel.
(a) Required reports.--An independent counsel shall:
(1) File with the panel, with respect to the six-month
period beginning on the date of his appointment and with
respect to each six-month period thereafter until the office
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