Chapter 21. Investigations

GENERAL

Sec.

21.1. Complaints.

21.2. Initiation Of Investigation By The Commission.

21.3. Preliminary Inquiries.

21.4. Frivolous Complaints; Complaints Without Probable Cause, Disclosure Of Complaints.

21.5. Conduct Of Investigations.

21.6. Confidentiality.

HEARINGS

Sec.

21.21. General.

21.22. Discovery.

21.23. Scope Of Hearing.

21.24. Hearing Officer.

21.25. Conduct Of The Hearing.

21.26. Motions.

21.27. Briefs.

21.28. Decision.

21.29. Finality; Reconsideration.

21.30. Effect Of Order.

GENERAL

§21.1. Complaints.

(a) A complaint alleging a violation of the act shall contain the name, position or office held by the respondent and the basis of the complaint which would delineate the facts and circumstances of the alleged violation.

(b) A complaint shall be sworn and signed by the complainant.

(d) The Commission will acknowledge, in writing, the receipt of the complaint.

(e) The Commission through its Executive Director will review complaints and proceed only if the complaint:

(1) Contains sufficient information.

(2) Is sworn and signed.

(3) Is within the Commission's jurisdiction.

(4) Concerns an alleged violation of the act having a greater than de minimis economic impact.

(f) A complaint not meeting the requirements of subsection (e) will be dismissed without prejudice to refile if the requirements are satisfied.

(g) Upon the receipt of a complaint which satisfies the criteria of subsection (e), the Commission, through its Executive Director, will initiate a preliminary inquiry. If the preliminary inquiry establishes reason to believe that the act was violated, the Commission, through its Executive Director, may initiate a full investigation.

(h) A complainant will be notified of the dismissal of a complaint under subsection (f).

(i) In the case of sworn complaints alleging a violation of the Statements of Financial Interests filing requirements, the Commission may elect to proceed under §19.3 (relating to late or deficient filings), in which event this chapter does not apply.

(j) This section supersedes 1 Pa. Code §35.9 (relating to formal complaints generally).

§21.2. Initiation of investigation by the Commission.

The Commission through its Executive Director may, on its own motion, conduct a preliminary inquiry regarding an alleged violation of the act.

§21.3. Preliminary inquiries.

(a) A preliminary inquiry will be terminated or opened as a full investigation within 60 days of the initiation thereof. A preliminary inquiry is considered initiated at the time when it is officially docketed.

(b) The Commission will keep information, records and proceedings relating to a preliminary inquiry confidential. The Commission will, however, have the authority to refer the case to law enforcement officials during a preliminary inquiry or any time thereafter without providing notice to the subject of the inquiry.

(c) If, after preliminary inquiry, there is reason to believe that the act has been violated, the Executive Director will commence an investigation. An investigation will be considered commenced when the respondent is notified under §21.5(b) (relating to conduct of investigations).

(d) The Commission, through its Executive Director, will close the preliminary inquiry if:

(1) The occurrence giving rise to the complaint is not within the purview of the act as having been committed and completed prior to the act.

(2) The occurrence giving rise to the complaint is clearly not within the purview of the act.

(3) The respondent is not a person subject to the act.

(4) There is no reason to believe that the act has been violated.

(5) The violation complained of has a de minimis economic impact.

(e) If the preliminary inquiry is closed, the Commission will notify the complainant and the respondent.

§21.4. Frivolous complaints; complaints without probable cause; disclosure of complaints.

(a) If a public official or public employee has reason to believe a complaint is frivolous due to its having been filed in a grossly negligent manner without basis in law or fact, or without probable cause and made primarily for a purpose other than that of reporting a violation of the act, or that a person has publicly disclosed or caused to be disclosed that a complaint against the public official or public employee has been filed with the Commission, the public official or public employee shall notify the Commission and the Commission, through its Executive Director, will conduct an investigation.

(b) These matters will be processed by the Commission in accordance with Chapter 25 (relating to wrongful use of the act).

§21.5. Conduct of investigations.

(a) Within 72 hours of the commencement of an investigation, the complainant will be provided notification thereof by first class mail.

(b) The respondent will be provided with a general statement of the alleged violation of the act and other applicable statutes under investigation. Service of the notice is complete upon mailing which will be by certified or registered mail.

(c) The complainant and respondent will be notified of the status of the investigation every 90 days until it is complete.

(d) The Commission may employ or be assigned staff, including attorneys, investigators and hearing officers, as may be required to properly investigate, review and dispose of complaints and investigations.

(e) The Executive Director, staff counsel, director of investigations and special investigators have the authority to conduct interviews, take statements, receive and inspect documents and records and otherwise obtain evidence and gather information by lawful means.

(f) Commission staff members identified in subsection (e) are designated to administer oaths or affirmations for the purpose of obtaining voluntary sworn statements with regard to matters which may properly come before the Commission.

(g) A person having possession or control of documents or records deemed relevant to an investigation that the Commission is authorized to conduct may be required to produce the materials for inspection by subpoena served by the members of the Commission staff designated in subsection (e). These Commission staff members have the right to retain or have access to subpoenaed documents and records for a reasonable period, and to make copies thereof.

(h) The Commission may authorize one or more members of the Commission staff designated in subsection (e) to obtain by subpoena the sworn statement of a person deemed to have information relevant to an investigation that the Commission is authorized to conduct.

(1) Sworn statements may be conducted by and before one or more of the staff members in subsection (e).

(2) Testimony received in the preparation of a sworn statement will be under oath or affirmation administered and recorded by a stenographer.

(3) The authority to question a witness appearing for a sworn statement will be limited to staff members taking the sworn statement, the hearing officer and counsel for the witness.

(4) Persons permitted to be in attendance at the preparation of a sworn statement will be limited to staff members of the Commission, the hearing officer, the witness, counsel for the witness and a stenographer.

(5) A witness giving a sworn statement may object to a question if it is irrelevant or privileged.

(6) A witness subpoenaed by the Commission is entitled to compensation as fixed by 42 Pa.C.S. §5903 (relating to compensation and expenses of witnesses).

(i) Subpoenas issued under subsection (g) or (h) will be authorized by the Commission and signed by the Chairperson or Vice Chairperson. Subpoenas may be served by a person empowered to do so or as designated by the Executive Director.

(j) Within 180 days of commencing the investigation, the Commission will do one of the following:

(1) Terminate the investigation and notify the complainant and respondent.

(2) Rule upon a request for an extension by the Executive Director, upon a showing of need, not to exceed 90 days.

(i) The granting of or denial of a request for an extension requires a majority vote of a quorum of the Commission.

(ii) A maximum of two extensions may be granted.

(iii) A findings report will be issued within 180 days after the commencement of an investigation or within the time period of a granted extension.

(3) Issue a findings report which sets forth the pertinent facts, and affords the subject of the investigation an opportunity to respond to the findings and to request an evidentiary hearing.

(k) The respondent shall file a response to the findings report of the Commission within 30 days, unless an application for an extension is made to the Commission and granted for good cause shown.

(1) The respondent shall admit or deny the allegations in the findings report by number. Anything not specifically denied or general denials will be deemed an admission of the individual factual finding.

(2) New matter raised by a respondent in his answer does not require a reply by the Commission.

(l) Investigations by the Commission and the information gained therein will be confidential subject to the exceptions in section 8(k)(1)-(8) of the act (65 P.S. §408(k)(1)-(8)).

(m) If an investigation conducted under the act indicates that no violation has been committed, the Commission will immediately terminate the investigation and send written notice of the determination to the complainant and the person who was the subject of the investigation.

(n) Subsection (h) supersedes 1 Pa. Code §§35.142- 35.145 (relating to subpoenas; and depositions).

§21.6. Confidentiality.

(a) As a general rule, a person may not disclose or acknowledge, to any other person, any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission. However, a person may disclose or acknowledge to another person matters held confidential in accordance with this chapter or 65 Pa.C.S. §1108 (relating to investigations by commission), when the matters pertain to any of the following:

(1) Final orders of the Commission as provided in 65 Pa.C.S. §1108(h).

(2) Hearings conducted in public under 65 Pa.C.S. §1108(g).

(3) For the purpose of seeking advice of legal counsel.

(4) Filing an appeal from a Commission order.

(5) Communicating with the Commission or its staff, in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the Commission.

(6) Consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation or prosecution by the law enforcement official or agency.

(7) Testifying under oath before a governmental body or a similar body of the United States of America.

(8) Information, records or proceedings relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which the person is the subject of.

(9)The publication or broadcast of information legally obtained by the news media regarding a confidential Commission proceeding.

(10) The divulgence by individuals who are interviewees or witnesses as to confidential Commission proceedings regarding information that was already in their possession or the disclosure of their own statements.

HEARINGS

§21.21. General.

(a) The Commission will conduct hearings upon the request of a respondent. A respondent shall request a hearing in his answer to the findings report or separately within 30 days of the issuance of the findings report. Failure to request a hearing within the time period will be deemed a waiver.

(1) The respondent may be granted an extension for filing an answer upon application to the Chief Counsel and for good cause shown. The Chief Counsel may grant an extension up to 30 days.

(2) Further requests shall be made to the Chairperson 2 weeks prior to the extended deadline. The Chairperson may grant a second extension if extraordinary circumstances are demonstrated in writing.

(3) Extensions granted will correspondingly advance other deadlines provided for in the act.

(4) A hearing will be held within 45 days after the respondent's answer to the Findings Report unless the time is extended upon application for good cause shown.

(5) A notice of hearing will be issued to the respondent unless represented by counsel in which case to counsel within a reasonable period of time prior thereto. The notice will advise of the date, time and location of the hearing, and of the hearing rights, privileges, process and procedures in this section.

(6) Hearings will be conducted in Harrisburg, Pennsylvania. For cases to which the act applies, a request for a hearing in Philadelphia or Pittsburgh will be granted, if filed with the Commission within 7 days after the notice of hearing is mailed. Failure to request a hearing in those locations within the time period will be deemed a waiver of the right.

(b) Hearings will be conducted before one or more members of the Commission. The Commission may appoint a hearing officer for the conduct of the hearings.

§21.22. Discovery.

(a) The respondent will be given access to evidence intended to be used by the Commission at the hearing, as well as exculpatory evidence developed during the investigation.

(b) Access to evidence does not include the original complaint or the name of the complainant, information which is otherwise privileged or information not within subsection (a).

§21.23. Scope of hearing.

(a) Hearings may be conducted as follows based upon the express agreement of the parties:

(1) Full evidentiary hearing.

(2) Oral argument based on stipulated findings.

(3) Submission on briefs.

(4) Limited hearing based on partially stipulated facts.

(b) The respondent has the right to a full hearing, if so requested.

(d) Motions for dismissal made by the respondent will be deferred to the full Commission for consideration.

(e) This section supersedes 1 Pa. Code §35.126 (relating to presentation by the parties).

§21.24. Hearing officer.

(a) It is the duty of the hearing officer and he has the power to do one or more of the following:

(1) Schedule and conduct a hearing as required to resolve the matter and to provide the parties with proper notice of the hearing.

(2) Administer oaths or affirmations to witnesses.

(3) Rule on motions, objections or other matters arising during the hearing.

(4) Insure that all parties have a full and fair opportunity to be heard.

(5) Insure that a record of the proceedings is available for review by the Commission.

(6) Advise witnesses and parties to the hearing of the confidentiality requirements of the act.

(7) Advise witnesses or the respondents, when not represented by counsel, of their rights as witnesses.

(8) Issue subpoenas upon written request for the production of documents, records and persons needed for the proceeding. The hearing officer will be provided with the name and addresses of the persons and a description of the documents or records involved, and will be satisfied that the documents, records or testimony are relevant and are not protected by privilege.

(9) Arrange for the payment of witness fees and mileage expenses or pay other related expenses as required by law.

(b) The presiding officer will make the following available to the Commission to the extent applicable:

(1) A transcript of the hearing, including exhibits.

(2) Motions, briefs, memorandums or documents filed by a party to the proceeding.

§21.25. Conduct of the hearing.

(a) The formal rules of evidence will not apply to hearings. Relevant probative evidence except properly objected-to hearsay will be admitted.

(b) Testimony shall be given under oath or affirmation and witnesses shall be subject to cross-examination.

(d) Each party may make an opening and closing statement.

(e) Parties to the proceeding will be afforded a full and fair opportunity to be heard and may be represented by counsel.

(f) The hearing will be closed to the public unless the respondent requests an open hearing.

(g) Witnesses summoned for hearings shall receive reimbursement for expenses under 42 Pa.C.S. §5903 (relating to compensation and expenses of witnesses).

(h) Subpoenas may be issued at the request of the parties to the hearing on the approval of the Commission or hearing officer. Information subpoenaed shall be relevant and not privileged.

(i) The hearing and papers, records and disclosures therein will be confidential except for the contents of the final order as provided in §21.29 (relating to finality; reconsideration).

(j) If one or more of the participants in a hearing become disrespectful, disorderly or disruptive, the hearing officer may continue the hearing to allow the full Commission to rule on the proper limitations or sanctions for the person whose behavior does not conform to minimum standards required for an orderly proceeding.

(k) Subsection (a) supersedes 1 Pa. Code §35.161 (relating to form and admissibility of evidence). Subsection (b) supersedes 1 Pa. Code §35.137 (relating to oral examination). Subsection (c) supersedes 1 Pa. Code §35.125 (relating to order of procedure).

§21.26. Motions.

(a) A motion filed prior to the issuance of a notice of hearing will be submitted to the Chairperson, Vice Chairperson or designated hearing officer who will rule on the matter unless in the exercise of his discretion the motion should be submitted to the Commission for a determination at the next scheduled executive session of the Commission.

(b) A motion filed will correspondingly advance other deadlines provided for in the act by an amount of time equal to the period between the date of filing of the motion and the date of disposition.

(c) A motion filed immediately prior to or at hearing will be submitted to the hearing officer. The hearing officer will rule on the motion except that which would involve a final determination which will be deferred and submitted to the Commission as part of the record for final disposition of the case.

(d) This section supersedes 1 Pa. Code §35.177 (relating to scope and contents of motions).

§21.27. Briefs.

(a) The hearing officer or the parties may request that briefs, proposed findings of fact and conclusions of law be presented. The hearing officer will establish a schedule for the presentation of this material. The parties have the right to request a schedule for the filing of briefs. Failure to comply with this schedule without reasonable excuse, as determined by the hearing officer, shall operate as a waiver of the opportunity to present this material.

(b) The hearing officer will provide the specifications for briefs which will be in conformity with 1 Pa. Code Chapter 35 (relating to formal proceedings).

§21.28. Decision.

At the conclusion of a hearing concerning an alleged violation and in a timely manner, the Commission will deliberate on the evidence to determine whether there has been a violation of the act.

(1) At least four members of the Commission present at a meeting must find a violation of the act by clear and convincing proof.

(2) The names of the members finding a violation and the names of those dissenting and abstaining will be listed in the order.

(3) The determination of the Commission, in the form of a final order and findings of fact, will be a matter of public record.

§21.29. Finality; reconsideration.

(a) An order disposing of an investigation will be a final order when issued. Public release of the order will occur 30 days after the date of issuance, unless reconsideration is requested within that 30-day time period.

(b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered.

(c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission.

(d) A request for reconsideration may include a request for a hearing before the Commission.

(e) Reconsideration may be granted at the discretion of the Commission if:

(1) A material error of law has been made.

(2) A material error of fact has been made.

(3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence.

(f) If the Commission grants reconsideration the Commission may do one or more of the following:

(1) Order new hearings.

(2) Schedule and conduct oral argument.

(3) Take other action or issue an order or opinion in final disposition of the case.

(g) Pending reconsideration or request for reconsideration, an order will remain confidential.

(h) An order which becomes final in accordance with this section will be available as a public document, but the files and records relating thereto will remain confidential.

(i) This section supersedes 1 Pa. Code §§35.231 - 35.233 and 35.241 (relating to reopening of record; and application for rehearing or reconsideration).

§21.30. Effect of order.

In addition to deciding the case before it, the Commission may take one or more of the following actions, if appropriate. The Commission may:

(1) Order the respondent to make restitution or impose a monetary penalty in accordance with the act.

(2) Order the respondent to cease and desist from engaging in a particular activity deemed to be in contravention of the act.

(3) Order the respondent to take specified action to bring himself in compliance with the act.

(4) Refer the matter for review or with a specific recommendation for action to law enforcement, regulatory or other authorities with jurisdiction over the matters.

(5) Institute restitution order enforcement proceedings through the Office of Attorney General or the Commission's legal staff.

(i) The hearing and papers, records and disclosures therein will be confidential except for the contents of the final order as provided in §21.29 (relating to finality; reconsideration).

Chapter 21. Investigations

Chapter 21.

Investigations

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