In Re: Adoption of the Regulations of the Pennsylvania Judicial Ethics Advisory Board ( 2022 )

Regulations of the Judicial Ethics Advisory Board
1.0 Preamble
1.1 Purpose
As a unified body, independent from the judicial conduct structures of the
Judicial Conduct Board and Court of Judicial Discipline, the Judicial Ethics
Advisory Board (JEAB) is the designated and approved body to render
advice and opinions regarding appropriate ethical conduct involving all
judicial officers and candidates for all judicial offices who are subject to the
Code of Judicial Conduct and/or the Rules Governing Standards of Conduct
of Magisterial District Judges (collectively, the “Codes”).1
1.2 Mission Statement
To ensure the continued integrity and public trust of Pennsylvania’s
judiciary, the Judicial Ethics Advisory Board shall, upon request, provide
Advice and/or Opinions to any Judicial Officer or judicial candidate based
on the Codes. The Advice and Opinions shall strive, where appropriate, to
distinguish between mandatory and aspirational provisions of the Codes so
as to guide the conduct of Judicial Officers as required under the Codes.
2.0 Definitions
All terms used in these Regulations shall have their ordinary meanings unless
noted otherwise or as defined by the Pennsylvania Rules of the Judicial Ethics
Advisory Board (Pa.R.J.E.A.B.) or these Regulations.
“Advice/Panel Advice” or “Advisory Opinion” – A Panel’s written advisory
opinion issued in response to a written Request received from a Judicial
Officer.
“Attendance or Attending” - Board Members present at a Board meeting either
in person or by electronic or other means permitting interaction between the
Members.
“Board” – The Judicial Ethics Advisory Board.
“Codes” – Collectively, the Code of Judicial Conduct and the Rules Governing
Standards of Conduct of Magisterial District Judges.
1The JEAB supersedes the prior designations of committees of the Pennsylvania Conference of State
Trial Judges and the Special Court Judges Association of Pennsylvania to render such advice or
opinions.
“Essential Member” – The Member of a Panel who is of the same judicial level
as the inquiring Judicial Officer.
“General Ethics Guidance” – A written opinion by the Board that the Board may,
in its discretion, issue to address general ethics advisory guidance on any
relevant topic under the Codes. General Ethics Guidance is not in response
to a specific written request from a Judicial Officer.
“Issuance” or “Issued” – The act of communicating the written decision of a
Panel or the Board to a Judicial Officer as provided for under these
Regulations.
“Judicial Officer” – Any individual within the Application of the Codes, including
judicial candidates.
“Member” – An individual appointed to the Judicial Ethics Advisory Board.
“Opinion” – A decision by the Board, as provided for under these Regulations, to
either adopt, modify, or overrule the Advice of a Panel interpreting an
inquiring Judicial Officer’s duties and obligations under the Codes, in
response to a specific, factual scenario submitted for that purpose.
“Panel” – Three (3) Members of the Board whom staff appoints to render Advice
in response to a Request from a Judicial Officer.
“Request” – A written submission by a Judicial Officer to the Board seeking an
Advisory Opinion under Section 8.0 of these Regulations.
“Regulations” – These Judicial Ethics Advisory Board Regulations as adopted
by the Board and as amended by the Board from time to time.
“Rules” - The Pennsylvania Rules of the Judicial Ethics Advisory Board
(Pa.R.J.E.A.B.).
“Served or Service” – The transmission of an Advice or Opinion of the Board
whether by mail, email, fax, or some other authorized manner of secure
delivery as provided for under these Regulations.
“Staff” – Employees of the JEAB, including any full-time, part-time, contract and/or
designated agents of the JEAB, either current or future.
3.0 Board Membership
3.1 Officers
In accordance with Pa.R.J.E.A.B. Rule 104(a), the Supreme Court shall
designate one Member to serve as Chair and another to serve as Vice-
Chair.
3.2 The Chair shall:
3.2.1 Preside over the Board at all Board meetings.
3.2.2 Decide all points of order, subject to appeal by no less than 2/3 of
those Members present.
3.2.3 The duties and powers of the Chair shall not be limited to those
expressed herein but shall be subject to any law or rule otherwise
duly promulgated and enacted.
3.3 The Vice-Chair shall:
3.3.1 Assist the Chair as requested or required.
3.3.2 Serve in place of the Chair if the Chair is unable to execute the duties
and responsibilities of the position.
3.4 Standards of Member Conduct
3.4.1 Appellate and Trial Court Judge Members shall be bound by the
Code of Judicial Conduct.
3.4.2 Magisterial District Judge Members shall be bound by the Rules
Governing Standards of Conduct of Magisterial District Judges.
3.4.3 Attorney Members of the Board shall be bound by the Rules of
Professional Conduct.
3.4.4 Pa.R.J.E.A.B 105 and Section 5.0 hereof, evidence a strong
commitment to encourage Judicial Officers to seek ethics advisory
opinions and that all such communications to and from the Board are
to be confidential. In light of these objectives, Members are relieved
of any obligation under the Codes to report to an appropriate
authority conduct of a Judicial Officer that is the subject of a Request
permitted under these Regulations.
3.5 Conflicts
Members shall refrain from participating in the work of either a Panel or
Board that pertains to their own Request or in any other matter where a
Member’s impartiality might reasonably be questioned.
3.6 While acting in their official capacity, Judge Members shall be deemed to
be performing a judicial function.
4.0 Board Meetings
4.1 Board Calendar
For reporting purposes, the Board shall operate on a fiscal year beginning
July 1st and ending June 30th.
4.2 Meeting Dates
The Board shall meet at least quarterly. At or prior to the last meeting of
the Board for the fiscal year, the Board shall establish fixed meeting dates
for the next Board Calendar. The Board may convene meetings at such
other times as the Chair or a majority of the Members determine. Staff shall
provide all Members due and timely notice of all Board meetings.
4.3 Member Participation
Board Decisions are enhanced by the participation of all Members;
therefore, Members are encouraged to attend each meeting in person and
to participate in all Board discussions and decisions.
4.4 Quorum
4.4.1 A majority of the Members of the Board shall constitute a quorum.
4.4.2 When less than a quorum of Members is in Attendance, it shall be
the duty of the Chair or Vice-Chair to adjourn the meeting.
4.4.3 In the absence of the Chair and Vice-Chair, it shall be the duty of the
most senior Member to adjourn the meeting when less than a
quorum is in Attendance. Seniority shall be established by date of
admission to the Pennsylvania Bar.
4.5 Voting and Decisions
4.5.1 Board Decisions shall be determined as follows:
a. A majority vote by the Members Attending a duly called
Meeting of the Board shall be required to adopt, modify or
reverse any Advice.
b. A majority vote of all Members shall be required to modify or
reverse a previously issued Opinion of the Board.
c. A majority vote of all Members shall be required to modify,
reverse, or adopt the issuance of a General Guidance.
5.0 Confidentiality
Communications to and from the Board are confidential except as described here.
Establishing the confidentiality of Board proceedings and communications to and
from the Board is critical to encourage Judicial Officers and candidates for judicial
office to seek ethics opinions and advice from the Board. Encouraging Judicial
Officers and candidates for judicial office to seek ethics opinions and advice from
the Board will promote ethical conduct and the fair administration of justice. The
need for preserving confidentiality outweighs the need for disclosure in the interest
of justice. Therefore, to implement Pa. R.J.E.A.B. No. 105, and to promote ethical
conduct by Judicial Officers and candidates for judicial office and to encourage
them to seek ethics opinions and advice from the Board, the following
confidentiality requirements and exceptions apply to Requests and other matters
before the Board:
5.1 Confidentiality
With the exception of Opinions and General Ethics Guidance published by
the Board under Pa. R.J.E.A.B. No. 204(b) and (c), all Opinions, inquiries,
replies, circulated drafts, records, documents, writings, files,
communications with Staff, work product of the Board or Staff, and
deliberations and proceedings of the Board are confidential.
5.2 Members and Staff
Members of the Board and Staff may not disclose (outside the Board or
Staff) any confidential information, including identifying information,
obtained by the Board or Staff.
5.3 Waiver of Confidentiality by Judicial Officer
A Judicial Officer or candidate for judicial office may waive confidentiality,
and such a waiver must be in writing. If a Judicial Officer or candidate
making a request for an Opinion or Advice waives confidentiality or asserts
reliance on an Opinion or Advice in judicial or attorney discipline
proceedings, such Opinion or Advice no longer is confidential under these
Rule. Notwithstanding any such waiver, Board deliberations and all other
records concerning the Request shall remain confidential.
5.4 Conclusion of Service by Members of the Board
Board Members shall return to Staff or destroy any records in their
possession at the end of their terms of service.
6.0 JEAB Contact Information
Any Judicial Officer may request an Advisory Opinion by submitting a Request to
the Board in writing. Requests may be submitted via United States Mail, special
courier, fax, or email.
6.1 Mailing Address
The designated mailing address for any communications addressed to the
JEAB, including Requests for Advisory Opinions, shall be:
Judicial Ethics Advisory Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6100
PO Box 62333
Harrisburg, PA 17106-2333
6.2 Email Address
The designated email address for any communications sent to the JEAB,
including Requests for Advisory Opinions, shall be:
JEAB@pacourts.us
6.3 Fax Number
The designated fax number for any communications sent to the JEAB,
including Requests for Advisory Opinions, shall be:
717-231-9594
6.4 Electronic Mail
Any Board action required to be communicated in writing may be sent by
electronic mail, provided such electronic mail includes the following
language:
Confidentiality Statement: This electronic mail transmission (including
attachments) is covered by the Electronics Communications Privacy Act, 18
U.S.C. §§2510-2521, is confidential, and/or may be legally privileged. The
information is intended only for the use of the individual or entity named in
this transmission. If you are not the intended recipient, you are hereby
notified that any retention, dissemination, distribution, or copying, or the
taking of any action in reliance on the contents of this transmission, is strictly
prohibited. Please reply to the sender that you have received the message
in error, and then delete it.
6.5 Public Media
All requests for commentary or interview by the news media regarding the
Board or Board business should be referred to either the Chair or to the
Supreme Court’s Press and Communications Office at 717-231-3324.
7.0 Records and Files
7.1 Security
All records, papers, files, etc. of the JEAB shall be confidential and shall
remain confidential. Staff shall adequately secure all files and records of
the Board, regardless of format (i.e., paper and/or electronic), to ensure
confidentiality.
7.2 Storage Format
Paper documents shall be converted to an electronic format.
7.3 Paper File Retention Schedule
All paper documents shall be maintained for one calendar year after
conversion to an electronic format. Upon expiration of one year, paper
records may be destroyed in a secure manner.
7.4 Electronic File Retention Schedule
Electronic files shall be maintained according to the following schedule, or
as otherwise required by law:
Mandatory Retention
Category Time Measured From:
Period
Requests for
Advisory Opinion – Date of receipt Retain 2 years
No Jurisdiction
Requests for
Permanent Record –
Advisory Opinion - Date of receipt
Retain indefinitely
OPENED
Permanent Record –
Advice Date of Issuance
Retain indefinitely
Permanent Record –
Opinion Date of Issuance
Retain indefinitely
Permanent Record –
Retain indefinitely (in the
event of a retirement or
overruling of the General
General Guidance Date of Adoption
Guidance, the original
shall nonetheless be
maintained, although no
longer published)
Miscellaneous
Matters Where Date of receipt or creation
Retain 3 years
Official Action of item
Taken
General
Correspondence
Date of receipt or creation
Records Not Retain 1 year
of item
Relating to Official
Action Taken
Financial Records:
Journals, Invoices,
Close of the year for
Bills, Expense Retain 7 years
which the records apply
Reports, BEV,
Receipts, etc.
Retain fiscal year plus 5
Budget Preparation Date of receipt or creation years or as otherwise
Files of item provided by funding
source
Minutes of Board Date of Adoption by the Permanent Record –
Meetings Board Retain indefinitely
Training (Not Date of event or Retain 5 years after
Individual) completion presentation is completed
Purchase Order Date of receipt or creation
Retain 7 years
Files of item
7.5 Conflict with Other Retention Schedules
These schedules are intended to be consistent with those set forth in the
Supreme Court of Pennsylvania Administrative Office of Pennsylvania
Courts (AOPC) Record Retention & Disposition Schedule. Unless
otherwise required by law, AOPC schedules shall govern.
7.6 Mandatory Minimum Retention Periods
The record retention periods set forth herein are minimum retention terms,
after which the files may be destroyed. The files may also be retained for
longer than the established retention periods.
7.7 Methods of Record Destruction
7.7.1 Confidential Records
When confidential information may be contained in the records,
shredding is the preferred method of destruction. Regardless of
manner, destruction of records shall be by such a means as to
permanently prevent the disclosure of the contents thereof.
7.7.2 Non-Confidential Records
Records that do not contain confidential information may be
shredded, incinerated, or otherwise destroyed according to general
practice.
8.0 Panel Advice and Board Review
Judicial Officers must submit Requests to the Board in writing under Section 6.0.
A Request must contain a statement of the facts regarding the intended conduct
and a concise question of judicial ethics, with references to the relevant section(s)
of the Codes, case law, and other authority the inquiring Judicial Officer already
has consulted. A Request must relate to the inquiring Judicial Officer’s own
prospective conduct or conduct of the inquiring Judicial Officer that has occurred
in the past and is ongoing. A Request may not relate to hypothetical situations or
to facts that are the subject of past or pending litigation, disciplinary investigation,
or disciplinary proceedings. Judicial Officers must submit Requests at least 14
days prior to the event or action giving rise to the question. The Board Chair or the
Chair’s designee may, in his or her discretion, waive this 14-day requirement for
good cause and if the inquiry can be addressed in the time available.
8.1 Request Intake
The Executive Director is designated and authorized to receive any and all
Requests seeking an Advisory Opinion.
8.2 Jurisdictional Closure
Any request for an Advisory Opinion from someone other than a Judicial
Officer may be closed by the Executive Director for lack of jurisdiction
without Board approval.
8.3 Insufficient Request
If the JEAB receives a jurisdictionally appropriate Request but lacks
sufficient information to render Advice, Staff will obtain additional facts from
the Judicial Officer. Staff may close the Request if the Judicial Officer fails
or refuses to provide the requested information within fourteen (14) days.
8.4 Panel Determination and Assignment
Following receipt of a Request, the Executive Director shall identify the level
of the judicial system of the inquiring Judicial Officer. The Executive
Director shall assign the Request to a pre-determined Panel approved by
the Board.
8.5 Panel Member Assignment
In an effort to foster diversity and workload equality, each Member will rotate
Panel assignments. Upon completion of a two (2) year cycle, each Member
will have served with every other Member of the Board to the extent
practical. Each Panel shall contain at least one Member of the same judicial
level as the inquiring Judicial Officer. Panel makeup shall be confidential
and shall not be disclosed except to Members and Staff of the JEAB.
Individual Panel assignments shall rotate on a quarterly basis.
8.6 Identity Redaction
The Judicial Officer’s Request shall be redacted by Staff so the identity of
the Judicial Officer shall not be known to the Panel or Board. Only Staff will
have access to the identity of the inquiring Judicial Officer. The identity of
an inquiring Judicial Officer may be disclosed to the Chair when, in the
Chair’s opinion, there is a clear and convincing need to know. At no time
shall the Chair or staff intentionally disclose the identity of the inquiring
Judicial Officer absent an explicit and express waiver by the inquiring
Judicial Officer in writing, or the Chair believes disclosure is necessary for
a clear and convincing reason.
8.7 Panel Action
The Essential Member of a Panel shall act as director of the Panel.
8.7.1 Communication
Communication among the Panel, and between the Panel and Staff,
shall be through or as authorized by the Essential Member.
8.8 Advice
A Panel determination shall be deemed achieved upon a two-thirds (2/3) or
greater consensus of the Panel. Once a consensus is reached, the
determination of the Panel shall constitute the Advice, and Staff shall
communicate the Advice to the inquiring Judicial Officer in writing. The
Panel membership shall remain confidential to the Requesting Judicial
Officer.
8.9 Reconsideration of Advice
After a Panel issues an Advice following a Request by a Judicial Officer, the
Judicial Officer shall have the ability to seek reconsideration of the Panel
Advice.
8.9.1 Timing
A request for reconsideration of Panel Advice must be in writing and
must be received by Staff within fourteen (14) days of Service of the
Panel Advice.
8.10 Board Review
After issuing Advice to the inquiring Judicial Officer, Staff shall circulate the
Advice to the Board for review. Members shall respond in writing within
twenty days of circulation by addressing any agreement, disagreement, or
comment to Staff, and sending a copy thereof to each Member of the Board.
A Member who does not respond within the stated timeframe shall be
presumed to agree with the Advice rendered. If there is no disagreement
with the Advice, the Advice shall be deemed the Board Opinion, so long as
no request for reconsideration is pending. A deemed Opinion shall be
ratified by vote of the Board at the next meeting.
If a majority of the Board (five or more Members) register disagreement with
an Advice, Staff shall notify the inquiring Judicial Officer promptly, and the
matter shall be timely scheduled for Board resolution. The Board shall
reach a Board Decision as to the Advice as soon as possible.
8.11 Opinion Publication
The Board may adopt, modify, or reverse any Advice. Once a Board
Decision has been reached under Regulation 4.5.1, the Board Decision
shall constitute the Opinion of the Board. Staff shall promptly serve the
Opinion of the Board upon the inquiring Judicial Officer. Publication by the
Board of any Opinion shall occur only after the period for Board
Reconsideration has expired.
8.12 Dissenting Members
Any Member of the Panel or Board shall retain the right to dissent from the
majority decision of either a Panel or the Board. A Member may, but is not
required to, express an opposing view in writing. Any written dissent shall
be part of the issued Advice or Opinion. A dissent shall not identify the
Member-author by name.
8.13 Reconsideration
8.13.1 Under Pa.R.J.E.A.B. Rule 207, an inquiring Judicial Officer may
submit a written request for reconsideration within twenty days of the
Board’s Opinion adopting, modifying, or reversing an Advice. The
inquiring Judicial Officer shall present a detailed explanation setting
forth the reason(s) why the Board should reconsider the Opinion.
8.13.2 If the Board declines to issue an Opinion, the inquiring Judicial
Officer may seek reconsideration of the inaction within 20 days of
Service of notice of the Board’s inaction.
8.13.3 A Request for reconsideration must be in writing and must be
received by Staff before 5:00 p.m. (EST) on the twentieth day
following Service of an Opinion or Notice of Inaction. The twenty-
day period shall be calculated from the date of Service upon the
inquiring Judicial Officer and shall be so computed as to exclude the
first and include the last day of such period. Whenever the last day
of any such period shall fall on Saturday or Sunday, or on any day
made a legal holiday by the laws of the Commonwealth or of the
United States, such day shall be omitted from the computation.
8.13.4 A request for reconsideration filed with the Board will delay the
publication of an Opinion but will not affect the Rule of Reliance
unless the Board grants reconsideration.
8.13.5 If the Board grants reconsideration, the Board may take one or more
of the following actions:
(a) Adopt the Advice as originally issued.
(b) Modify the issued Opinion.
(c) Withdraw the Opinion and take no further action; or
(d) Other action as the Board deems appropriate.
9.0 Service of Decisions:
When an inquiring Judicial Officer authorizes Service of Decisions through
electronic means, Service shall be through email address confirmed by the
inquiring Judicial Officer. Any electronic service of a decision through email
shall be by pdf attachment accessible only through a password.
If the inquiring Judicial Officer does not authorize electronic service, Service
of Decisions shall be by First Class Mail. Service occurs upon deposit of the
item with the U.S. Mail (First Class); or the date of acceptance by the
Judicial Officer or an authorized agent (Certified Mail, Return Receipt
Requested); or the date of transmission if issued by email or fax.
Staff shall serve an Opinion that reverses or modifies an Advice by Certified
Mail, Return Receipt requested, in addition to any electronic Service.
10.0 Docketing/Numbering
10.1 Request Number
Regardless of format (paper correspondence, email, fax, etc.), the JEAB
will assign every written Request a sequential Request Number as required
by Pa.R.J.E.A.B 202. The Request Number will be formatted as the letter
“R” [Request] followed by a sequential number and the two-digit calendar
year (Rx-YY).
10.2 Advice Number
Once Staff determines that a Request will be assigned to a Panel, Staff will
assign the file an Advice Number. The Advice Number will be formatted as
the last two digits of the calendar year followed by a sequential number
beginning with 101 (YY-1xx).
10.3 Opinion Number
Staff shall assign every Opinion of the Board with an Opinion Number. The
Opinion Number will be formatted as a sequential number followed by JEAB
and the four-digit calendar year (x-JEAB-YYYY).
11.0 General Ethics Guidance
The Board, at its discretion, may issue general ethics advisory guidance (General
Guidance) on topics of interest and concern to persons subject to the Codes. A
subsequent Opinion of the Board regarding the same subject matter of General
Guidance shall be deemed to supersede the prior General Guidance.
12.0 Exigent Circumstances
Under Pa.R.J.E.A.B. 201, a Judicial Officer may submit a Request to the
Board in writing at least 14 days prior to the event or action giving rise to
the question. The Chairperson may waive this requirement for good cause
shown if exigent circumstances exist and a Panel can responsibly and
meaningfully address the Request in the time available. In those instances,
the following procedures shall apply:
12.1 Exigent Intake
An inquiring Judicial Officer may initiate a Request by contacting
Staff by telephone at 717-705-1785, by email to JEAB@pacourts.us,
or by the most expedient means available to the Judicial Officer. The
Request should include all information required under these
Regulations. If the Judicial Officer relays the information verbally,
the Judicial Officer shall immediately commit the Request to writing
directed to Staff. The inquiring Judicial Officer’s failure to reduce the
Request to writing shall preclude the JEAB from issuing an Advice.
12.2 Exigent Panel Assignment
Upon receiving an exigent Request, Staff shall docket the Request,
assign the Request a number as provided for under Section 10.0 of
these Regulations, and forward the Request to a Panel for an
Advisory Opinion.
12.3 Exigent Advice
Unless the Panel declines to issue an Advisory Opinion because it
cannot responsibly and meaningfully provide an Advice (which
decision shall be immediately communicated to the Judicial Officer),
the Panel shall expeditiously proceed to render an Advice that shall
be communicated by Staff to the Judicial Officer. Where the Panel
Advice is initially communicated verbally, the Panel shall promptly
commit the Advice to writing, and Staff shall promptly Serve the
written Advice on the Judicial Officer.
12.4 Exigent Board Consideration
Once the Panel issues a written Advice, the Board shall then
consider the Advice as provided for under Sections 8.10 through 8.13
of these Regulations.
13.0 Citation to Authority
Nothing in either the Rules or these Regulations shall prohibit either the Board, a
Panel, an individual Member, or Staff from citing, referencing, or considering any
previously issued opinion or findings of the Ethics Committees of the Pennsylvania
Conference of State Trial Judges (“PCSTJ”) and/or the Special Court Judges
Association of Pennsylvania (“SCJAP”) as persuasive authority in reaching a
Board Decision as to an Advice, Opinion, or General Guidance.
14.0 Waiver
The Chair may, in its discretion, waive any administrative provision of these
Regulations when, in the Chair’s judgment, the proper interests of the Board and/or
the interests of an inquiring Judicial Officer require such action by the Chair.
Waiver of any confidentiality provision pertaining to a Judicial Officer shall not be
allowed unless agreed to by the Judicial Officer.
15.0 Amendments
These Regulations may be amended by a majority of the Board after giving at least
thirty (30) days advance written notice of proposed changes to each Member.
15.1 Court Approval
Under Pa.R.J.E.A.B. Rule 104(d)(3), Regulations are subject to approval by
the Supreme Court. Any amendment shall take effect immediately upon
approval by the Supreme Court or as otherwise ordered by the Supreme
Court.
15.2 Pending Amendments
Until the Court approves a proposed amendment, the Regulations as last
adopted and approved shall remain in effect.