§ 39.1. Criminal cases.
(a) The Commonwealth will not provide an attorney to defend a present or former official or employe in a criminal case arising from acts or omissions occurring while in the service of the Commonwealth. If it is determined by the General Counsel or the General Counsel’s designee that there is no basis for the prosecution as a matter of law or fact, the Commonwealth will reimburse the employe for reasonable attorneys fees and to that end will make any required advance of these fees, limited by the balance in the retirement account of the employe.
(b) In a case in which the General Counsel or the General Counsel’s designee does not determine that there is no basis for the prosecution in law or fact, he may nevertheless authorize the reimbursement of reasonable attorneys fees if the employe’s defense is successful.
Source The provisions of this § 39.1 amended November 11, 1994, effective November 12, 1994, 24 Pa.B. 5655; amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial page (196930).
Notes of Decisions Scope
This section authorizes designated members of the executive branch to determine whether to reimburse legal fees to employes of the executive branch who are charged with a crime; as the appellant is an elected district justice of a district court, that is, a judicial officer, this section has no application. Yurgosky v. Commonwealth, 722 A.2d 631 (Pa. 1998).
Executive Board regulations do create a conditional entitlement in State employes to reimbursement for counsel fees. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).
Where attorneys who successfully defended a DPW employe against criminal charges sought payment of their fees by DPW, the court held that the Attorney General could authorize payment under subsection (b) even though the employe had not paid the fees. In re Plevyak, 476 A.2d 487 (Pa. Cmwlth. 1984).
The provisions of § § 39.1—39.3 are substantive with the force and effect of law, rather than policy statements for two reasons. First the provisions in § § 39.1—39.3 are substantive because they create a controlling standard of conduct. Second, the provisions in § § 39.1—39.3 are substantive because § § 39.1—39.3 cannot be converted into discretionary rules, even though the benefits of the regulation may be dependent on the determination of the Office of General Counsel. Dep’t of Corrections v. Pennsylvania State Corrections Officers Ass’n, 12 A.3d 346, 360 (Pa. 2011).
Cross References This section cited in 4 Pa. Code § 39.12 (relating to criminal cases).
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