§ 401a.5. Adjudicatory function of the Board; ex parte communications.
(a) The Board or a presiding officer acts in an adjudicatory capacity when considering any matter presented for a decision by the Board or presiding officer in relation to an on-the-record proceeding. To ensure the integrity and impartiality of the Board or presiding officer acting in an adjudicatory capacity, there will be no commingling of the adjudicatory functions of the Board or presiding officer and the investigatory or prosecutorial functions of the Bureau or Office of Enforcement Counsel.
(b) When acting in an adjudicatory capacity regarding the facts at issue or merits of a matter pending before the Board or presiding officer, or which may reasonably be expected to come before the Board or presiding officer in a contested on-the-record proceeding, a member or presiding officer of the Board or an attorney from the Office of Chief Counsel who is advising the Board on the matter may not engage in an ex parte communication with any person including the Bureau or the Office of Enforcement Counsel.
(c) An ex parte communication received or engaged in by a member or presiding officer of the Board will be recorded in a log which will be available for public inspection at the Board’s office during normal business hours and will be posted on the Board’s web site. The log must include:
(1) The name of the individual documenting the ex parte communication.
(2) The date and time of the ex parte communication.
(3) The names of all individuals involved in the ex parte communication.
(4) The subject discussed.
(d) In addition to documenting an ex parte communication in accordance with subsection (c), notification of the substance of the communication and an opportunity to respond will be provided to all parties to the hearing or other proceeding that is the subject of the ex parte communication.
(e) A member or presiding officer of the Board may be required to recuse himself if substantial reasonable doubt exists as to the individual’s ability to act objectively, independently or impartially in a hearing or proceeding as follows:
(1) A member or presiding officer of the Board who engaged in or received an ex parte communication will recuse himself from any hearing or other proceeding related to the ex parte communication if the context and substance of the ex parte communication creates substantial reasonable doubt as to the individual’s ability to act objectively, independently or impartially.
(2) A member or presiding officer of the Board who engaged in or received an ex parte communication who elects not to recuse himself from a hearing or other proceeding will state his reasons for not recusing himself on the record prior to the commencement of the hearing or proceeding.
(3) A member or presiding officer of the Board who has identified any other reason which creates substantial reasonable doubt as to the individual’s ability to act objectively, independently or impartially will recuse himself from any hearing or other proceeding related thereto.
(4) If a legislative appointee recuses himself from any hearing or other proceeding under this section, any qualified majority vote required under this part will consist of all of the remaining legislative appointees and at least two gubernatorial appointees.
(5) Failure of a presiding officer, for whom substantial reasonable doubt as to the individual’s ability to act objectively, independently or impartially exists, to recuse himself from a hearing or other proceeding when required under paragraph (1) shall be grounds for appeal to the Board.
(6) Failure of a member, for whom substantial reasonable doubt as to the individual’s ability to act objectively, independently or impartially exists, to recuse himself from a hearing or other proceeding when required shall be grounds for appeal to a court of competent jurisdiction if the Board action being appealed could not have occurred without the participation of the member.
(f) Nothing in this subsection will preclude a member of the Board from consulting with other members individually if the consultation complies with 65 Pa.C.S. § § 701—716 (relating to Sunshine Act) or with employees or independent contractors whose functions are to assist the Board in carrying out its adjudicative functions.
Authority The provisions of this § 401a.5 issued under 4 Pa.C.S. § § 1202.1 and 1516.1.
Source The provisions of this § 401a.5 adopted October 7, 2011, effective October 8, 2011, 41 Pa.B. 5368.
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