PROPOSED RULEMAKING
COMMONWEALTH OF PENSYLVANIA
STATE ETHICS COMMISSION
51 PA. CODE, CHAPTERS 11, 13, 15, 17, 19, 21, 23 AND 25
§§ 11.1, 11.3, 13.1—13.5, 15.2, 17.3, 17.7, 17.9, 17.11, 19.3, 21.1—21.5,
21.21—21.29, 23.5, 23.22, 23.23, 25.1—25.4
GENERAL REVISIONS NECESSITATED BY COURT OPINIONS
AND ALIGNMENT WITH MODERN PRACTICES
The State Ethics Commission proposes to amend Chapters 11, 13, 15, 17, 19, 21, 23 and 25, §§ 11.1, 11.3, 13.1—13.5, 15.2, 17.3, 17.7, 17.9, 17.11, 19.3, 21.1—21.5, 21.21—21.29, 23.5, 23.22, 23.23, 25.1—25.4, to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The State Ethics Commission issues this proposed rulemaking under the authority provided by section 1107(1) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1107(1), which provides the Commission with the general authority to establish rules and regulations to carry out the provisions of the Ethics Act and section 1201 of the Commonwealth Documents Law, 45 P.S. § 1201, which authorizes proposed rulemaking.
Purpose and Background
The State Ethics Commission’s primary mission is to strengthen public faith and confidence in state and local government through enforcement of the Ethics Act to assure the public of the honesty and impartiality of public officials and public employees. Section 1101.1(a) of the Ethics Act declares that “clear guidelines are needed in order to guide public officials and employees in their actions.” 65 Pa.C.S. § 1101.1(a). Therefore, the Commission considers it imperative to keep abreast of relevant court opinions and align the Commission’s practices to conform with applicable case law.
The Commission’s regulations have not undergone any substantive revisions in 30 years. During that timeframe, several significant court opinions have been issued which speak directly to provisions of the Ethics Act and the regulations. In order to be in conformity with judicial precedent and to help guide the regulated community by ensuring that the Commission’s practices align with relevant case law, certain substantive changes are necessary. This rulemaking would outline the separation of powers of Commission staff, delete certain provisions pertaining to wrongful use of the Ethics Act, clarify the Commission’s procedures for reconsideration of a final order, and remove judicial employees from the definition of “public employee” and “public official” – all changes necessitated by court opinions.
In addition to revisions dictated by the changing legal landscape, the Commission recognizes that after 30 years, many of its regulations require clarification, refinement, and simple edits for consistency with current practices and procedures. Although the Commission revised its regulations in 2024 through the final-omitted rulemaking process, those changes were limited to technical revisions necessary for statutory consistency, clarity and modernization to regulations that had not been updated for decades. The changes proposed herein primarily involve substantive matters.
Specifically, the rulemaking would provide clarity to those subject to the Commission’s regulations, the general public, and legal advisors by updating obsolete definitions, adding definitions of terms necessary to interpret the Ethics Act and the regulations, and delineating considerations for the imposition of treble penalties in cases involving conflicts of interest.
The rulemaking also would focus on refining due process rights to better inform the regulated community and legal counsel. It would explain the discovery, subpoena, investigative, and hearing processes unique to the Commission, thus providing increased transparency of the Commission’s activities. It also adds a provision instructing the parties how to raise potential conflicts of interest of a Commissioner during a proceeding to ensure fair and equitable treatment of all parties. In addition, the rulemaking would remove the requirement that a complaint be notarized, easing the burden of the general public while still allowing the Commission to best encourage compliance by the regulated community through investigations of those suspected of violating the Ethics Act.
Further, the rulemaking would offer additional clarity edits not included in the technical revisions to the regulations accomplished through the final-omitted rulemaking process in 2024. These include removing certain outdated classifications of people from the definition of “public employee”, correcting statutory references, requiring individuals requesting advisory opinions to provide an email address if available, consolidating familial designations under the statutory definition of “immediate family”, changing the title of “hearing officer” to “presiding officer” and permitting the Commission’s Chief Counsel to serve as the presiding officer. Accordingly, this rulemaking, while comprehensive and wide-ranging, benefits the Commission, the regulated community and the general public.
The Commission sought comments and suggestions on a draft rulemaking by releasing an exposure draft for public comment on April 22, 2025. Written comments were received from ___ commentators. The Commission reviewed those comments and made (or did not make) revisions to the proposed rulemaking. The proposed rulemaking will become effective 60 days after publication of the final-form rulemaking in the Pennsylvania Bulletin.
Description of Proposed Regulations
This rulemaking seeks to amend various sections of the regulations to comport with judicial precedent and for clarification, refinement, and simple edits necessary for consistency with current practice and procedures.
Judicial Precedent
This rulemaking amends sections 11.1, 13.1, 19.3, 21.1, 21.2, 21.3, 21.5, 21.22, 21.23, 21.25, 25.2, and 25.3 to comport with the Pennsylvania Supreme Court’s decision in Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa. 1992). The Supreme Court in Lyness concluded that an administrative licensing board violated a physician’s due process rights by commingling prosecutorial and adjudicative functions in the same board, and that “the appearance of nonobjectivity is sufficient to create a fatal defect under the Pennsylvania Constitution.” Id., 605 A.2d at 1210. The Court further determined that a single administrative agency may exercise both prosecutorial and adjudicative functions if the “walls of division” are constructed within an agency that clearly separate those two functions. Id., 605 A.2d at 1209-1210.
Following the Lyness decision, the Commission took the appropriate steps to bifurcate its investigative and adjudicative divisions; however, the regulations did not reflect this necessary separation of roles. Section 11.1 adds definitions for each division under the Commission’s umbrella, as well as for the Executive Director and the Chief Counsel, while removing the all-encompassing definition of “staff.” Section 13.1 identifies the Chief Counsel as the decision maker as to whether an advice of counsel or an advisory opinion is issued, while section 19.3 is revised to identify the duties of the Administrative Division, Investigative Division, and Executive Director in the Statement of Financial Interests (SFI) process.
Chapter 21 (Investigations) contains the most extensive revisions designed to ensure the walls of division contemplated in Lyness are clearly delineated by placing the prosecutorial functions in a group of individuals distinct from the Commission. Sections 21.1 through 21.3 identify the Executive Director as responsible for shepherding a complaint through the preliminary process and for deciding whether to open a complaint on their own motion. Section 21.5 removes the term “Commission” from the investigative process and replaces it with “Investigative Division” as defined in section 11.1. Similarly, section 21.22 replaces “Commission” with “Investigative Division” and describes the Investigative Division’s discovery obligations, including the time period to turn over exculpatory evidence. Lastly, sections 21.23 and 21.25 identify the Investigative Division as the prosecuting party to a complaint and the Legal Division as the advisor to the Commission during hearings, respectively.
This rulemaking amends sections 25.1 and 25.2 to address the court’s decision in Stilp v. Contino, 629 F.Supp.2d 449 (M.D. Pa. 2009), affirmed and remanded 613 F.3d 405 (3rd Cir. Pa. 2010), on remand 743 F.Supp.2d 460 (M.D. Pa. 2010), in which the court permanently enjoined the prohibition of public disclosure of Ethics Act complaint filings as an unconstitutional restraint on free speech. This rulemaking would delete public disclosure of Ethics Act complaints as a basis for wrongful use proceedings, and identification of the person disclosing the existence of Commission proceedings as part of the wrongful use of act notification.
In addition, this rulemaking would revise the Commission’s procedures for reconsideration of a final order to address concerns expressed by the court in Seropian v. State Ethics Comm’n, 20 A.3d 534 (Pa. Cmwlth. 2011). In Seropian, the court concluded that an administrative breakdown justified nunc pro tunc relief where the Commission’s regulations relating to reconsideration procedures were unclear and inconsistent so as to unintentionally mislead the appellant into believing that the Commission had granted reconsideration and suspended finality of the Commission’s final order; thereby, leading to the untimely filing of a petition for review. Id., 20 A.3d at 542.
Consequently, this rulemaking would amend section 21.29 to specify the essential information necessary for a reconsideration request. It also would reduce the days within which to file a request for reconsideration and require the Legal Division to provide a copy of a reconsideration request to the Commission within three working days so as to allow sufficient time to review and act on the request before the expiration of the 30-day appeal period. This rulemaking would advise the regulated community and legal advisors that filing a request for reconsideration does not toll the 30-day appeal period so that appellate rights are protected. Further, section 21.29 would be revised to include a 30-day period for the Commission to act on a request for reconsideration or the request will be deemed denied by operation of law.
Lastly, this rulemaking removes judicial employees from the definitions of “public employee” and “public official” set forth in section 11.1 to align with the court’s opinion in L.J.S. v. State Ethics Comm’n, 744 A.2d 798 (Pa. Cmwlth. 2000) (Commission lacks jurisdiction to enforce the Ethics Act as to judicial officers and judicial employees because the Pennsylvania Supreme Court has exclusive jurisdiction over such individuals).
Clarification
This rulemaking would provide clarity to the regulated community and legal advisors by amending section 11.1 to update the definitions of “clear and convincing proof” and “gross negligence” to be consistent with case law. See, In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (clear and convincing proof is “so ‘clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue’”); Ratti v. Wheeling Pittsburgh Steel Corporation, 758 A.2d 695, 704 (Pa. Super. 2000), appeal denied, 785 A.2d 90 (2001) (gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one's acts).
In addition, this rulemaking would revise section 11.1 to include a definition of “private pecuniary benefit” that aligns with Commission precedent. See, Shirn, Order No. 1835 (private pecuniary gain not only includes personal gain related to the receipt of actual payment but also the avoidance of a loss or expense). This rulemaking would add definitions for a wrongful use of act notification, as well as the parties in a wrongful use of act proceeding to remedy confusion due to the reversal of roles in wrongful use proceedings. These definitions would then be incorporated into chapter 25 (relating to wrongful use of the act). In addition, a definition of “directive” would be included to aid in interpreting the definition of “advice.”
Further, this rulemaking would add a new section to chapter 21 (relating to investigations). Section 21.28a would reiterate the Commission’s ability to impose treble penalties pursuant to 65 Pa.C.S. § 1109 (relating to penalties) and would set forth the criteria utilized by the Commission in determining whether to impose treble penalties in conflict of interest cases.
Refinement
Also proposed are numerous refinement edits designed to improve awareness of due process rights and increase transparency of the Commission’s activities. Specifically, this rulemaking would make several revisions to definitions set forth in section 11.1. The definition of “Commissioner” would remove the requirement that a Commissioner be seated in favor of a Commissioner taking the oath of office as this has long been the Commission’s practice as to when a Commissioner’s term officially begins. The definition of “sworn complaint” would be updated to eliminate the need for a complaint to be notarized in favor of a complaint being signed under penalty of perjury. This definition would, in turn, be incorporated into section 21.1 (relating to complaints). This rulemaking also would provide additional guidance as to what constitutes a conflict of interest by expanding the definition of “de minimis economic impact” to include an economic consequence that is no greater than that which accrues to a large class or the general public.
In addition to identifying the distinctive functions of each of the Commission’s divisions in the investigative and hearing processes as required by Lyness, this rulemaking would modify several other provisions in section 21.5 (relating to conduct of investigations), including placing the power to issue investigative subpoenas with the Executive Director, removing the hearing officer from the investigative process of taking sworn statements, requiring an advice of rights form be provided to all subpoenaed witnesses, and setting a good cause standard for the granting of extensions of time to complete investigations. These amendments are designed to enhance the public’s knowledge of the due process rights afforded to the regulated community and increase awareness of Commission procedures.
Similarly, this rulemaking includes several amendments to chapter 11(definitions) and chapter 21 (relating to hearings). A definition for “presiding officer” would be added to identify the individual responsible for overseeing the conduct of hearings, and this definition would be inserted throughout chapter 21 in place of “hearing officer.” Section 21.5 would be revised to include a provision advising respondents that failure to file a timely answer to an investigative complaint shall result in the allegations being deemed admitted. A good cause standard would be established for granting a second request for extension to file an answer to be consistent with other types of extension requests. Section 21.21 would be further amended to permit the Commission to designate its Chief Counsel as the presiding officer for the conduct of a hearing and to create a procedure if more than one Commissioner volunteers to serve as the presiding officer.
This rulemaking would amend section 21.22 to designate the time period in which the respondent must be given access to the evidence intended to be used by the Investigative Division at the hearing, as well as the time period in which exculpatory evidence shall be provided to the respondent. This rulemaking would revise or delete several duties of the presiding officer set forth in section 21.24, including advising witnesses of the confidentiality requirements of the Ethics Act and of their rights if not represented by counsel since this information will be included on the new advice of rights form provided to witnesses with hearing subpoenas. Arranging for payment of witness fees and mileage expenses also would be removed as a responsibility of the hearing officer in favor of the Administrative Division. Finally, section 21.24 would be amended to advise the parties that they may obtain a copy of the hearing transcript upon payment of the fee to the court reporting service.
In addition, section 21.25 would give the Commission or a presiding officer the ability to exclude a hearing participant if their conduct becomes disrespectful, disorderly or disruptive. Section 21.25 also would be modified to add a procedure by which a party may request a hearing subpoena so as to allow the presiding officer to properly evaluate whether the requester has demonstrated relevance, general materiality, and the scope of testimony or documentary evidence sought prior to issuing a hearing subpoena.
Section 23.5 (relating to records of meetings) would add a new subsection to address the content of meeting minutes for internal consistency and to advise the general public of the information contained in the Commission’s meeting records. This rulemaking also would add a provision to section 23.23 (relating to limitations on voting/recusal) describing the procedure by which a party may raise a potential conflict of interest of a Commissioner.
Section 25.3 (relating to the disposition of a wrongful use of act notification) would be amended to include a more detailed description of the Executive Director’s role in the wrongful use of act process, including providing the Commission with a memorandum outlining the findings, analysis, and position of the Investigative Division. This section also would add a provision outlining the Commission’s responsibilities in wrongful use of act cases.
Technical Edits
The Commission completed a series of technical revisions of its regulations in 2024. After final promulgation, the Commission discovered additional technical edits that were not, but could have been, addressed in the prior rulemaking. This rulemaking proposes to address those items.
This rulemaking proposes a number of technical changes to chapter 11 (relating to general provisions). The phrase “of the Commonwealth” would be removed from the definition of “Commission” in section 11.1, as it is superfluous, while a definition of “Commonwealth” would be added to clarify that any reference to “Commonwealth” means the Commonwealth of Pennsylvania. The definition of “director” would be modified so that all directors are included, not simply officers. The term “office” would be revised to “officer” since the Ethics Act applies to individuals rather than entities. The redundancy of the words “planning” and “zoning” would be deleted from the definition of “planning or zoning.” Executives in police departments would be added to the definition of “public employee” as their job duties and responsibilities are consistent with those of a public employee. Similarly, road masters and recreation directors would be removed from the definition of “public employee” since their duties generally do not fall within the definition of “public employee.” Also, a grammatical error in the definition of “public official” would result in the reversal of the words “exercise otherwise” to “otherwise exercise.” Lastly, the word “unannounced” would be removed as unnecessary from the definition of “write-in candidate” since a write-in candidate is by its very nature unannounced. Section 11.3 would add the applicable statutory reference for the statute of limitations of Commission investigations.
Chapter 13 (relating to opinions and advices of counsel) also contains several proposed technical revisions. This rulemaking would amend section 13.1 by requiring an individual requesting an advisory opinion to include an email address if available and removing the necessity of including an organization’s bylaws with the request. The word “made” would be replaced by the legally correct term “filed” in section 13.1, while the names of specific legal documents would be consolidated into the term “legal filing.” The number of days for requesting reconsideration of an advisory opinion pursuant to sections 13.2 and 13.3 would be lessened to 14 days so as to be consistent with the time period in section 21.29 (relating to finality; reconsideration). Likewise, the deadline for requesting to intervene would be changed from 14 days to 7 days prior to the Commission meeting, thus allowing individuals an additional week to file an intervention petition. Section 13.5 would be revised to include the Commission’s website as a manner in which the public may view information related to advisory opinions. This rulemaking would delete the provision pertaining to the publication of an annual digest and index of Commission opinions since they are available on the Commission’s website.
Further, third party professional services’ provider would be added to the list of public officials responsible for filing SFIs in section 15.2 in response to Senate Bill 765 which was signed into law by Governor Josh Shapiro on October 9, 2024. This rulemaking also would amend several sections in chapter 17 (relating to the content of SFIs). Sections 17.3 and 17.9 would be revised to consolidate familial designations under the statutory definition of “immediate family” and replace “husband and wife” with the more contemporary terminology “spouse.” Non-profit organizations would be added as a business entity disclosure in section 17.7. Section 17.11 would be revised to correct the name and statutory reference for the lobbying disclosure law.
This rulemaking also proposes several technical edits to chapter 21 (relating to investigations). Section 21.3 would streamline the language of when a preliminary inquiry must be closed due to the alleged violations occurring outside the statute of limitations, which is defined in section 11.3. The term “registered mail” in section 21.5 would be replaced by the modernized “certified mail” while the language “by a stenographer” would be deleted so that a sworn statement may be recorded by any qualified individual. Section 21.24 would be modified to replace the term “proceedings” with “hearing.” The word “papers” would be replaced with “admitted exhibits” in section 21.25, and “closing statement” would be changed to “closing argument” as this is the correct legal terminology. Further, section 21.29 would be amended to change the phrase “public document” to “public record.”
Chapter 23 (relating to general procedures of the Commission) contains several technical edits. Section 23.22 pertaining to prohibited activities of Commissioners would be amended to add “act on behalf of” to the provision regarding a Commissioner’s employment by the Commonwealth or a political subdivision. The word “member” would be replaced by “Commissioner” as this is a more accurate description, and a small grammatical change also would be made. In section 23.23, the word “close” would be removed as a modifying description of the type of friendships that should be considered when deciding whether a Commissioner should recuse from a matter. In addition, the phrase “by the Commission” would be deleted since the Commission does not have the authority to force a Commissioner to recuse.
Lastly, this rulemaking contains some proposed technical edits to chapter 25 (relating to wrongful use of the act). Section 25.2 would remove the unnecessary language “additional information necessary to the resolution of the matter” from the wrongful use of act notification, while section 25.4 would delete a lengthy and unnecessary description of a final determination in favor of the word “final.”
Paperwork Requirements
The proposed rulemaking will not result in an increase in paperwork for the Commission or any individuals or entities.
Fiscal Impact
The proposed rulemaking will not result in any fiscal impact to the Commonwealth, its political subdivisions or the general public.
Sunset Date
The Commission continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act, 71 P.S. § 745.5(a), on ______________, 2025, the State Ethics Commission submitted a copy of this proposed rulemaking and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC), the Office of Attorney General, and the Chairpersons of the House Judiciary Committee and the Senate Committee on State Government. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act, 71 P.S. § 745.5b, which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission and the General Assembly of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Bridget K. Guilfoyle, Chief Counsel, State Ethics Commission, Finance Building, 613 North Street, Room 309, Harrisburg, PA 17120-0400 or by email at bguilfoyle@pa.gov, within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Please reference No. 63-09 (General Revisions) when submitting comments.
Michael A. Schwartz
Chair