§ 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.
(2) The reporting requirements of Management Directive 205.6 are in addition to those required under § § 7.171—7.179 (relating to criminal charges), if applicable to the member, official or employe of the agency involved.
(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.
Source The provisions of this § 39.12 adopted by Executive Board Resolution Number ER-6-40, 6 Pa.B. 826; amended May 11, 1979, effective May 12, 1979, 9 Pa.B. 1532; reserved September 13, 1985, effective September 14, 1985, 15 Pa.B. 3244; amended August 5, 1994, effective August 6, 1994, 24 Pa.B. 3850. Immediately preceding text appears at serial page (34829).
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