A. Procedure.
(1) Standing.
(a) Any taxpayer, or aggrieved person, may file a complaint about alleged violations of the Charter or Administrative Code. The person signing a complaint shall:
[1] Reasonably believe in the existence of facts upon which the claim is based.
[2] Reasonably believe that the complaint may be valid under the Charter or Administrative Code.
(b) In addition, the Board may initiate preliminary investigations on its own motion, through the Investigative Officer in accordance with § 23-603(A)(3).
(2) Filing of complaint.
(a) Complaints must be submitted on forms provided by the Board. The Board shall make available this form upon request. The complaint shall state the name, job or office held by the alleged violator and a description of the facts that are alleged to constitute a violation. It must contain a notarized signature subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. The Board shall establish a separate post office box through which to receive complaints. This post office box shall be generally accessible by the Investigative Officer and/or the secretary, provided that the secretary is not a Board member.
(b) No member of the Board shall review any complaint until after an evidentiary hearing has been requested by the subject of the investigation, or if no evidentiary hearing is requested, then until the submission to the Board of the Investigative Officer's Findings Report.
(c) The complainant may withdraw his or her complaint at any time after its submission, and no further action will be taken with regard to the complaint. Such withdrawal shall be in writing and contain a notarized signature. If a preliminary investigation has already been initiated, the subject of the investigation shall immediately be notified of the withdrawal. The individual’s withdrawal of a complaint does not preclude further action by the Board on its own motion in accordance with § 23-603(A)(3).
(3) Determination of jurisdiction.
(a) Each complaint filed with the Board shall immediately be directed to and preliminarily reviewed by the Investigative Officer appointed by the Board to determine whether the complaint falls within the jurisdiction of the Board. The aforesaid determination shall be made within seven days of the filing of the complaint. If the Investigative Officer determines that the Board does not have jurisdiction over the matter underlying the complaint, the complainant will be notified and no further action will be taken with regard to the complaint. If, however, the Investigative Officer determines that the complaint falls within the jurisdiction of the Board, the Investigative Officer shall authorize a preliminary investigation. The Investigative Officer shall provide the subject with a copy of the complaint within five days of authorizing a preliminary investigation.
(b) Upon determination that the complaint falls within the jurisdiction of the Board, the Officer shall attempt an informal resolution of the issue (as provided by the Rules of Administration and Procedure implemented by the Board. This subsection shall apply to all complaints filed after 60 days from the effective date of the ordinance adopting this amendment to the Charter Board Ordinance, Bill No. 46-2005.) [Amended 6-22-2015 by Ord. No. 30-2015]
(c) Concurrent with the attempt at informal resolution, the Investigative Officer shall inform both the complainant and the subject of the complaint of their rights and responsibilities under the formal adjudicative process.
(d) At any time during the proceedings, the Investigative Officer and the subject may jointly request an evidentiary hearing or request to have the matter decided on briefs and/or oral argument in lieu of a full evidentiary hearing.
(4) Preliminary investigation.
(a) The preliminary investigation shall be initiated and conducted at the sole discretion of the Officer. If the Officer, in his/her discretion, finds that the alleged violation, would, if proved, constitute a "de minimis" infraction, he/she may decline to initiate a preliminary investigation and dismiss the complaint. A de minimis infraction is one that is so insignificant or trifling that enforcement serves merely to exhaust the Board's time and resources. See Bailey v. Zoning Board of Adjustments, 801 A. 2d 492 (Pa., 2002). Furthermore, if the Officer, in his/her discretion, finds that the Board in the instant case cannot provide an adequate or timely remedy, he/she may decline to initiate a preliminary investigation, dismiss the complaint, and advise the complainant of alternative remedies.
(b) At the onset of the preliminary investigation, the Officer shall notify both the complainant and the subject of the investigation of the filing of the complaint, the nature of the same and the initiation of a preliminary investigation.
(c) The preliminary investigation shall be completed within 30 days of the Officer's finding of jurisdiction.
(d) If, at any time during the preliminary investigation, an extension is necessary and justified, the Officer may request of the Board one fifteen-day extension, which shall be granted as of course. The Officer shall notify both the complainant and the subject of the investigation of such extension.
(e) At the conclusion of the preliminary investigation, the Officer shall determine whether there may exist facts to support the complaint. If the inquiry fails to establish such facts, the Officer shall dismiss the complaint and notify both the complainant and the subject of the complaint of the dismissal. If, however, at the conclusion of the preliminary investigation the Officer determines that there may exist facts to support the complaint, the Officer shall authorize a full investigation.
(5) Full investigation. If preliminary investigation uncovers facts to support the complaint, the Officer shall authorize a full investigation. The complainant and the subject of the investigation shall be notified within three days of the initiation of a full investigation and the subject shall be notified of the identity of the complainant. Until the investigation is concluded or terminated, the Officer will notify both the complainant and the subject of the investigation of the status of the investigation at least every 45 days. Within 90 days of the initiation of the full investigation, the Officer must either terminate the investigation or issue a findings report ("findings report").
(6) Findings report.
(a) The findings report shall set forth the pertinent findings of fact as determined by the Officer. The Officer shall deliver the findings of fact to the complainant and the subject of the investigation.
(b) Within 20 days of the issuance of the report, the subject of the investigation may make a request in writing to the Officer for an evidentiary hearing, and such request shall be granted as of right. When the Officer receives such a request, the Officer shall immediately notify the Board of the request for a hearing, and the names of the parties involved. The Investigative Officer shall then prepare facts in support of the complaint and present them at the evidentiary hearing.
(c) If the subject of the investigation does not request an evidentiary hearing within 20 days of the issuance of the findings report, the Officer shall immediately notify the Board of the names of the parties involved and shall deliver to the Board the findings report.
(7) Evidentiary hearing.
(a) Timing. An evidentiary hearing must be held within 45 days of the filing of a request for same unless the Investigative Officer and subject agree to a date beyond the 45-day period. provided that the extension does not interfere with the requirement for the Charter Board to issue a final decision within eight months of the receipt of the complaint.
(b) Procedure.
[1] The subject of the investigation shall have reasonable access to any evidence intended to be used at the hearing. The subject of the investigation shall have the opportunity to be represented by counsel and to subpoena witnesses, present evidence, cross-examine witnesses against him/her, submit argument, and shall be entitled to exercise all rights afforded him/her by the United States Constitution and the Pennsylvania Constitution which apply to this type of hearing.
[2] The formal rules of evidence will not apply to hearings; however, they may be used as a guide for determining the evidence admitted at the hearing.
[3] Testimony shall be given under oath or affirmation, and witnesses shall be subject to cross-examination.
[4] A stenographic record shall be taken of all evidentiary hearings.
[5] The Investigative Officer will present his/her case followed by the case of the subject of the complaint. Each party may make an opening and closing statement, unless otherwise directed by the Board.
[6] Subpoenas may be issued at the request of the parties to the hearing on the approval of the Board. Information subpoenaed shall be relevant and not privileged.
[7] The Board shall possess and be afforded all other powers, rights, privileges, and immunities, afforded to quasi-judicial bodies in the Commonwealth of Pennsylvania.
(c) Closed hearing. The hearing shall be closed to the public unless the subject requests an open hearing, in writing, to the Board at least five days before the hearing.
(d) Hearing Officer. The Board shall appoint a hearing officer who shall assist the Board in carrying out its functions during the evidentiary hearing, may examine witnesses, documents and things to the same extent as the Board, may make evidentiary rulings and advise the Board concerning same, assist in the preparation and review of the final order, and otherwise advise and counsel the Board as necessary. The Hearing Officer shall maintain complete independence from the Board Solicitor and the Investigative Officer.
(8) Decision by the Board: final order.
(a) Following evidentiary hearing. At the conclusion of the evidentiary hearing, and in a timely manner, the Board shall deliberate on the evidence to determine whether the subject of the complaint violated the Charter or the Administrative Code. The Board's decision shall be by a majority vote of those members present.
(b) Where no evidentiary hearing is requested. If the subject of the complaint does not request an evidentiary hearing, the Board shall decide by a majority vote of those members present whether the findings report supports a determination that the subject of the complaint violated the Charter or Administrative Code.
(c) Final order and opinion. The final order and opinion of the Board shall contain findings of fact and conclusions of law in accordance with the Local Agency Law, 2 Pa.C.S.A. §§ 551 through 555. A copy of said order and opinion shall be delivered immediately to both the complainant and the subject of the complaint by certified United States mail, return receipt requested. The Board, through its Hearing Officer, shall render its decision and issue a final order and opinion which shall be binding:
[1] Within 30 days of the conclusion of the evidentiary hearing.
[2] In the instance where no evidentiary hearing is requested, within 60 days of the issuance of the findings report.
(9) Right to appeal.
(a) Any person aggrieved by an adjudication of the Board who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals pursuant to Title 42 (relating to judiciary and judicial procedure). All such appeals shall be conducted in accordance with the Local Agency Law, 2 Pa.C.S.A. §§ 751 through 754.
(b) In the instance of an appeal from an adjudication of the Board, representation of the Board shall be by its Solicitor.
(10) Protection of complainant. No person may be penalized, nor any employee of the City be discharged, suffer change in his/her official rank, grade, or compensation, denied a promotion, or threatened, for a good faith filing of a complaint with the Board, or for providing information or testifying in any Board proceeding.
(11) Costs of Charter enforcement. Any person who prevails in any legal action against the City, its officers or agents to enforce this Charter or the Administrative Code pursuant to it, shall be entitled to recover all reasonable attorney's fees and costs incurred in such action.
B. Violations.
(1) Violations. The violation of any section of the Charter or Administrative Code, in whole or in part, shall constitute a violation under the jurisdiction of the Board, except that the Board's jurisdiction shall not extend to cases arising under either the Ethics Code or the Personnel Code.
(2) Relief. Upon the finding of any violation, the following relief may be ordered by the Board:
(a) Issue an order requiring the subject to cease and desist from engaging in a particular activity or non-activity that is in violation of the Administrative Code or Charter.
(b) Order the subject to take specified action to bring him/her into compliance with Board directives.
(3) Penalties.
(a) Penalties.
[1] If a subject who has been found to have violated the Charter continues or repeats the conduct found to have been a violation of the Charter or fails to correct an ongoing violation of the Charter within 30 days of the order. the board may institute penalties to enforce its order. If the order is appealed the subject may request that the Court issue a stay of enforcement pending appeal.
[2] Factors to be considered. Before the imposition of any penalty the Board shall consider the following factors and address the relevant factors in its final order:
[a] The seriousness of the offense.
[b] The substantive effect the offense has on the application of the Charter and its purposes.
[c] Whether the subject of the complaint has had previous decisions entered against him/her by the Board.
[d] The number of violations involved.
[e] Whether the violations were the result of willful or intentional conduct, recklessness, negligence, oversight or mistake.
[f] The consequences of the violation.
[g] Any other factors relevant in determining the type and severity of the penalty to be imposed.
[3] Penalties. Upon the finding of any violation, the following penalties shall be available to the Board for imposition, in addition to and not withstanding restitution and other remedies listed in Subsection B(3)(b) below:
[a] Admonition, in compliance with existing personnel practices, collective bargaining agreements and/or statutes, a letter to the respondent, the Mayor, the Managing Director, and Director of the Department in which the respondent is employed, if any, and the complainant, if any, indicating that the respondent has been found to have violated the Charter or Administrative Code.
[b] Public censure, in compliance with existing personnel practices, collective bargaining agreements and/or statutes, notification to the respondent, the Mayor, the Managing Director, the Director of the Department in which the respondent is employed, if any, and the complainant, if any, and the news media indicating that a violation of the Charter or Administrative Code took place and that the Board strongly disapproves of the public official's or public employee's actions.
[c] Referral to the appropriate authorities for criminal prosecution in cases where a violation of the Charter or Administrative Code is also a violation of federal or state law.
[d] Imposition of a fine, not to exceed $1,000 per violation.
[e] Imposition of an administrative fine of not more than $1,000 to defray the actual cost and expense of investigating any violation.
(b) Other remedies. Upon the finding of any violation, the Board may take one or more of the following actions, in addition to and notwithstanding the penalties listed in Subsection B(3)(a)[3] above:
[1] Order the subject to cease and desist from engaging in a particular activity that is in violation of the Administrative Code or Charter.
[2] Order the subject to take specified action to bring him/her into compliance with Board directives.
[3] Refer the matter for review or with specific recommendation for action to law enforcement, regulatory or other authorities with jurisdiction over these matters.
C. Wrongful use of Charter Board.
(1) Complaints directed to the Board must be based on fact and a reasonable belief of a Charter violation. Wrongful use of the Board is prohibited and any person engaged in such conduct may be subject to penalties as set forth in Subsection B.
(2) Wrongful use of the Board is defined as:
(a) Filing an unfounded, frivolous or false complaint. A complaint is unfounded, frivolous or false if it is filed in a grossly negligent manner without basis in law or fact and was made for a purpose other than reporting a violation of the Charter or Administrative Code. A person has not filed a frivolous complaint if he/she reasonably believes that facts exist to support the claim, and either reasonably believes that under those facts the complaint is valid or acts upon the advice of counsel sought in good faith and given after full disclosure of all relevant facts within his/her knowledge and information.