Section 39.14. Independent agencies

(a) Purpose and scope.

(1) Under sections 216 and 709(f) of The Administrative Code of 1929 (71 P. S. § § 76 and 249(f)), the Executive Board has authority to make rules and regulations defining the expenses incurred in the performance of public duties for which officers and employes of the executive branch of State Government may be reimbursed. Under that authority, Subchapter A (relating to defense of suits against Commonwealth employes) defines those expenses relating to the defense of personal criminal and civil actions asserted against Commonwealth officials and employes of an executive branch agency of the Commonwealth government which might be paid by the Commonwealth from any source.

(2) Under Subchapter A, the General Counsel or a designee is required to determine, except in the cases involving officials and employes of the Office of Attorney General, the Department of Auditor General and the Treasury Department, whether, in each individual case, a Commonwealth official or employe is entitled to receive the benefits prescribed in that subchapter.

(3) This section is adopted to harmonize the requirements of Subchapter A with the Commonwealth Attorneys Act (71 P. S. § § 732-101—732-506) and other statutes establishing the independence of certain agencies from the General Counsel and the fiscal independence of certain executive branch agencies from the Governor.

(b) Definitions. As used in this section, an independent agency is defined as follows:

(1) For purposes of providing legal representation to a Commonwealth official or employe, or advancing or paying legal fees incurred in his defense, an independent agency is defined as provided by section 102 of the Commonwealth Attorneys Act (71 P. S. § 732-102) and is further defined to include the Public Utility Commission and other agencies specified by law as independent agencies under the Commonwealth Attorneys Act.

(2) For purposes of providing reimbursement of expenses, other than attorneys’ fees, or indemnification to a Commonwealth official or employe in connection with a criminal or civil action involving the official or employe in his personal capacity, an independent agency is defined as an agency for which the Governor has no power or authority under law to appoint a comptroller.

(c) Legal representation. In cases when an official or employe of an independent agency, as defined by subsection (b)(1), is the subject of a criminal or civil proceeding in his personal capacity arising out of the performance of his public duties, the General Counsel designates the chief counsel of the agency, or a designee, to determine under Subchapter A whether the Commonwealth must or should provide legal representation to the official or employe or pay, advance or reimburse legal fees incurred by him.

(d) Reimbursement and indemnification.

(1) In cases when an official or employe of an independent agency, as defined by subsection (b)(2), is the subject of a criminal or civil proceeding in his personal capacity arising out of the performance of his public duties, the General Counsel designates the chief counsel of the agency, or a designee, to determine under Subchapter A whether the Agency must or should reimburse or indemnify the official or employe for his expenses or otherwise make payment in satisfaction of his personal liabilities or obligations.

(2) In those cases described in paragraph (1), the General Counsel does not designate the chief counsel of the agency to determine whether the Department of General Services, Bureau of Risk and Insurance Management (BRIM), will make payments on behalf of the official, employe or agency from any insurance or self-insurance program which it maintains. Determinations affecting the obligation of BRIM to make payments on behalf of an official, employe or agency, including the Office of Attorney General, the Department of Auditor General and the Treasury Department, will be made by the General Counsel or a designee.

The provisions of this § 39.14 adopted August 5, 1994, effective August 6, 1994, 24 Pa.B. 3850; amended December 2, 1994, effective December 3, 1994, 24 Pa.B. 5986. Immediately preceding text appears at serial pages (191261) to (191263).

Notation

Cross References

This section cited in 4 Pa. Code § 39.12 (relating to criminal cases); and 4 Pa. Code § 39.13 (relating to civil cases).