4 Pa. Code § 39.12 - Criminal cases
(a)
Reporting of cases.
(1)
Subject to §
39.14 (relating to independent
agencies), when a current or former member, official or employe of the
executive branch of the Commonwealth is charged with a crime or is otherwise
the subject of a criminal investigation or prosecution arising from alleged
acts or omissions occurring while in the service of the Commonwealth, the
agency shall report the matter to the Office of General Counsel (OGC) under
paragraph 3a of Management Directive 205.6 (relating to defense of suits
against Commonwealth employe). The report, which is required to include all of
the circumstances known to the agency concerning the prosecution, shall be
directed to the deputy general counsel assigned as liaison to the agency
involved or, if none, to the deputy designated for that purpose by
OGC.
(b)
Requests for advancement or reimbursement.
(1)
Reporting. Subject to §
39.14, if a member, official or
employe charged with a crime or otherwise the subject of a criminal
investigation or prosecution arising from alleged acts or omissions occurring
while in the service of the Commonwealth has requested advancement of counsel
fees and expenses to defend the action or has requested reimbursement of
counsel fees and expenses incurred in the defense, the chief counsel of the
involved agency shall forward the request, along with his recommendations and
those of the agency, to the assigned liaison deputy general counsel or, if
none, to the deputy designated for these purposes. Agency counsel may not send
the request directly to the General Counsel or to the Executive Deputy General
Counsel since one or both of those officials could ultimately serve as an
adjudicator in the matter.
(2)
Decision by OGC. After investigation and consultation with
agency counsel and other appropriate officials, the decision whether to advance
counsel fees and in what amounts will be made by the designated deputy general
counsel. The decision will be communicated to the agency's chief counsel and to
the affected member, official or employe.
(3)
Approval. A decision by
the designated deputy general counsel to advance counsel fees to a member,
official or employe will constitute authorization under §
39.1 (relating to criminal cases)
and Management Directive 205.6 to the agency to advance the fees approved from
the agency's authorized appropriations, but the decision will not constitute
authorization to advance or reimburse additional fees or expenses incurred.
Each request for additional advancement or for reimbursement of fees or
expenses shall be submitted to OGC for separate determination.
(c)
Appeal to the General
Counsel.
(1)
Appeal by the
member, official or employe. If the requested advancement or
reimbursement is disapproved, or if the member, official or employe is
dissatisfied with the amount of the advancement or reimbursement approved, the
member, official or employe may file with the General Counsel a petition of
appeal under 1 Pa. Code §35.20 (relating to appeals from actions of the staff)
within 10 days after service of the notice of the decision by OGC. That person
may also request an evidentiary hearing in accordance with 2 Pa.C.S. §
§
501-508 and 701-704 (relating to Administrative Agency Law) and 1 Pa. Code Part
II (relating to the general rules of administrative practice and
procedure).
(2)
Appeal by
the agency. If the involved agency is dissatisfied with the decision
of the designated deputy general counsel, it may within 10 days after service
of notice of the decision of OGC request that the decision be reviewed by the
Executive Deputy General Counsel. Review by the Executive Deputy General
Counsel will be made in his sole discretion.
(3)
Further appeal to the General
Counsel. If the Executive Deputy General Counsel, upon his
discretionary review, modifies the decision of OGC to the dissatisfaction of
the affected member, official or employe, that person may, within 10 days after
service of the notice of the revised decision, file with the General Counsel a
petition of appeal under 1 Pa. Code §35.20 and request a hearing under to the
same procedures applicable as if an appeal were taken from the original
determination by the designated deputy general counsel. The agency will not
have the right to appeal to the General Counsel.
(d)
Notice regarding opportunity for
appeal.
(1)
Right to appeal.
The notice to the member, official or employe of the decision of OGC
approving or disapproving advancement or reimbursement of counsel fees or
expenses will state expressly that the member, official or employe has a right
to appeal the decision to the General Counsel or a designee within 10 days
after service of the notice of decision and that that person may request a
hearing under 2 Pa.C.S. §
§
501-508 and 701-704 and 1 Pa. Code Part II. The
notice will specify that a petition of appeal filed by the member, official or
employe shall state facts necessary to establish the member's, official's or
employe's eligibility for the fees requested, be verified and served on agency
counsel, and otherwise comply with 1 Pa. Code Part II.
(2)
Option to await completion of
criminal case.
(i) In the case of
requests for advancement of counsel fees and expenses or requests for
reimbursement made prior to the termination of the criminal prosecution,
failure to appeal to the General Counsel or a designee the decision denying or
limiting advancement or reimbursement of fees prior to termination of the
criminal proceedings will not prejudice the employe's opportunity later to
request reimbursement of fees and expenses under §
39.1(a) and (b) if
his defense ultimately is successful.
(ii) If the member, official or employe
appeals an adverse decision of OGC immediately to the General Counsel, and the
General Counsel or a designee then issues a formal adjudication, the member,
official or employe is thereafter precluded from re-litigating eligibility for
counsel fees and expenses under §
39.1(a) even if
his defense ultimately proves successful. Only a request after acquittal for
reimbursement under §
39.1(b), providing
for discretionary authorization for reimbursement of counsel fees, will be
considered under those circumstances.
(e)
Procedures on appeal.
(1) If a petition of appeal is filed with the
General Counsel by the affected member, official or employe under 1 Pa. Code
§35.20, the OGC will designate a deputy general counsel not involved in the
initial decision approving, disapproving or limiting advancement or
reimbursement, or another attorney outside OGC, to serve as presiding officer
under 1 Pa. Code Part II and to act as advisor to the General Counsel or a
designee in preparing and issuing an adjudication. The presiding officer will
not prepare a proposed report but will certify the record to the General
Counsel or a designee for adjudication under 1 Pa. Code §35.201 (relating to
certification of record without proposed report).
(2) Unless the Executive Deputy General
Counsel has previously reviewed or been otherwise involved in the initial
decision made by OGC, he ordinarily will serve as the designated adjudicator
for the General Counsel.
(f)
Consolidation of requests under §
39.1(a) and (b)
after successful defense.
(1) If a
member, official or employe of the executive branch is successful ultimately in
his defense of a criminal investigation or prosecution as to which there has
been no previous adjudication of eligibility or ineligibility for counsel fees,
that person may make a consolidated request for reimbursement of fees and
expenses under §
39.1(a) and (b).
If the General Counsel or a designee has previously rendered an adjudication
that the member, official or employe is not entitled to advancement or
reimbursement of counsel fees, the member, official or employe will be limited
to making a request for discretionary reimbursement under §
39.1(b).
(2) Requests for reimbursement will be
decided in accordance with the procedures described in subsections (b)-(e). A
decision regarding a request or petition for reimbursement made under §
39.1(b) is not and
may not be treated or construed as an adjudication. Determinations under §
39.1(b) are made
within the sole discretion of the General Counsel or a designee.
Notes
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