51 Pa. Code § 63.4 - Noninvestigative process for late or deficient filings
The noninvestigative process for matters under section 13A04 or 13A05 of the act (relating to registration; and reporting) will include the following procedures:
(1) Prior to the
issuance of a notice of alleged noncompliance pursuant to section 13A09 of the
act (relating to penalties), the Executive Director of the Commission will
issue a warning notice to the lobbyist, lobbying firm or principal that has
allegedly failed to register or report as required by the act. The warning
notice may encompass multiple alleged failures to comply with the act. The
warning notice will state the nature of the alleged noncompliance and the
administrative and criminal penalties for failing to register, failing to file
a report, or filing a report that contains a false statement or that is
incomplete.
(2) The recipient of
the warning notice shall have 30 days from the mailing date of the warning
notice in which to cure the alleged noncompliance. The Investigative Division,
may extend the 30-day time period for curing the alleged noncompliance. If the
alleged noncompliance is not cured within the 30-day period or any extension
thereof, the Investigative Division of the Commission may file with the
Commission a notice of alleged noncompliance. The notice will be served upon
the respondent by the Investigative Division. A notice of alleged noncompliance
may encompass multiple alleged failures to comply with the act.
(3) The notice of alleged noncompliance will
set forth the pertinent factual averments in numbered paragraph form and will
state the nature of the alleged noncompliance and the administrative and
criminal penalties for failing to register, failing to file a report, or filing
a report that contains a false statement or that is incomplete. A notice of
alleged noncompliance will also advise of the right to appeal from the notice,
to file a written answer to the notice and to request a hearing before the
Commission. A notice of alleged noncompliance will set forth the time and
manner in which to file an appeal, file a written answer and request a
hearing.
(4) An answer to the
notice of alleged noncompliance must be filed (received at the Commission)
within 30 days of service of the notice upon the respondent, and the notice of
alleged noncompliance will include a statement to this effect. Filing of an
answer is deemed to be both an appeal and a request for a hearing.
(5) An answer to the notice of alleged
noncompliance must specifically admit or deny each of the factual averments
made in the petition, set forth the facts and state concisely the matters of
law upon which the respondent relies. Matters not specifically denied will be
deemed admitted. The notice of alleged noncompliance will include a statement
to this effect.
(6) Failure to file
an answer within the 30-day period or the filing of general denials will be
deemed an admission of the averments of the notice of alleged noncompliance.
The notice of alleged noncompliance will include a statement to this
effect.
(7) To the extent that a
respondent does not file an answer, a request by the respondent for a hearing
must be in writing and be received at the Commission within 30 days of service
of the notice of alleged noncompliance upon the respondent. Failure to submit a
timely request for a hearing will be deemed a waiver of a hearing, so that a
final order may be entered against the respondent without a hearing.
(8) If the recipient of a notice of alleged
noncompliance fails to file a written answer or otherwise fails to file an
appeal or a request for a hearing, the notice of alleged noncompliance is
deemed admitted and the Commission may find the respondent to be in
noncompliance and impose a penalty or penalties pursuant to the act.
Furthermore, filing a notice of appeal will automatically constitute a request
for a hearing.
(9) If the
respondent does not file an answer or otherwise submit a timely request for a
hearing, the Investigative Division will have an additional 7 days beyond the
respondent's deadline in which to submit a written request for a
hearing.
(10) The Commission may
sua sponte schedule a hearing if it is determined that a
hearing is needed to resolve contested facts to make a final
determination.
(11) If a hearing is
requested by the respondent or Investigative Division or is scheduled by the
Commission, the respondent will be given access to evidence intended to be used
by the Investigative Division at the hearing, as well as exculpatory evidence
obtained by the Investigative Division.
(12) Access to evidence does not include an
original complaint or the name of a complainant, information which is otherwise
privileged, or information not within paragraph (11).
(13) A hearing under section 13A09(b) of the
act as to a negligent failure to register or report will be public and will be
conducted by the Commission in accordance with sections 1107(14) and 1108(e) of
the Ethics Act (relating to powers and duties of commission; and investigations
by Commission), and to the extent applicable, the related provisions of Part I
(relating to State Ethics Commission). The Investigative Division bears the
burden of proof.
(14) The hearing
officer or the parties may request that briefs be presented. The filing of
briefs must be in accordance with the procedures for filing briefs under §
21.27 (relating to briefs) to the
extent applicable.
(15) After the
opportunity for a hearing has been provided, and following the submission of
any briefs, the Commission will determine, based upon the record before it,
whether the respondent was required to register or report under the act;
whether the failure to register or report was negligent; and if the failure was
negligent, the amount of the administrative penalty to be imposed. At least
four members of the Commission present at a meeting must find a violation by
clear and convincing proof.
(16) If
the Commission finds that the failure to register or report was intentional, it
will refer the matter to the Attorney General for investigation and
prosecution, and if the person is an attorney at law, the Commission will also
refer the matter to the Board.
(17)
The determination of the Commission will be in the form of a final order with
findings and reasons for the adjudication.
(18) At any time prior to a final
adjudication by the Commission, the Investigative Division will have authority
to negotiate settlements and to enter into settlement agreements to resolve
matters under this section. Settlement agreements will be subject to review and
approval by the Commission. Settlement agreements may include arrangements for
deferral or termination of proceedings prior to any adjudicative disposition,
or terms for an adjudicative disposition, including penalties provided by the
act.
(19) Requests for
reconsideration may be submitted to the Commission. The Commission will
consider and rule upon requests for reconsideration under the procedures in
§
21.29(b) and
(d)-(f) (relating to finality;
reconsideration) to the extent applicable.
(20) The Commission will notify the Board of
any administrative/civil penalty imposed by the Commission against an attorney
at law for failure to register or report.
(21) A complainant will be notified of the
final resolution of the matter.
(22) The official record of the case before
the Commission will be publicly available.
(23) The files of the Investigative Division
will not be publicly available.
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