The Office of Chief Counsel is headed by a Chief Counsel who is appointed by the Pennsylvania Liquor Control Board (“Board”). The Chief Counsel supervises and coordinates the activities of attorneys, paralegals, and support staff members for the office. The Chief Counsel also supervises the statewide hearing examiners who hear licensing cases.
The day-to-day activities of the Office of Chief Counsel are varied, but for convenience purposes, can be divided into six (6) categories:
• Personnel Matters
The Office of Chief Counsel works in conjunction with the Bureau of Human Resource Management ("Bureau") concerning legal issues that arise in the hiring, firing and general employment of the Board's employees.
The Office of Chief Counsel’s involvement occurs not only during any litigation resulting from employment issues, but also prior to that litigation when the Bureau often consults with the Office of Chief Counsel concerning potential actions that may be taken against an employee or applicant.
The Office of Chief Counsel also reviews suggested personnel procedures and policies, disciplinary actions, and other highly sensitive and confidential matters.
With the exception of cases dealing with worker’s compensation, which are handled by the Risk Management Section of the Bureau, and union grievances, which are handled by the Bureau’s Labor Relations Division, the Office of Chief Counsel provides representation for the Board in all other forums such as Pennsylvania Human Relations Commission (“PHRC”), Equal Employment Opportunity Commission (“EEOC”), Unemployment Compensation (“UC”) and Civil Service in which personnel cases arise.
• Contract Matters
In November of 1998, the General Assembly passed the Procurement Code, significantly changing the procurement process for Commonwealth agencies.
The Office of Chief Counsel works closely with the Procurement Division of the Bureau of Support Services to ensure compliance with the Procurement Code and the Field Procurement Handbook.
The Office of Chief Counsel is responsible for reviewing all contracts and grants entered into by the Board for form and legality, except small, non-competitive procurements.
• Administrative Law Judge (“ALJ”) Appeals
Because the Board serves as an appellate body for appeals from ALJ decisions in citation cases, the Office of Chief Counsel has the responsibility for reviewing the records and applicable case law and drafting opinions for Board approval.
After review of the record, the Office of Chief Counsel forwards a draft Board Opinion and Order to the Board members for review. The appeal is then voted upon at a public meeting of the Board.
• Licensing Matters
One of the largest areas requiring the Office of Chief Counsel's input is that of licensing. Every attorney in the Office of Chief Counsel is involved in licensing matters to some degree. The Office of Chief Counsel is divided into divisions largely for the purpose of maintaining separation between the adjudicatory and prosecutorial functions in licensing cases, as required by due process.
Therefore, the Office of Chief Counsel is divided between adjudicatory and prosecutorial functions with attorneys on each side. The prosecution attorneys represent the Bureau of Licensing at hearings before the hearing examiners. The issues may involve the transfers of licenses as well as renewal of the licensing privilege. After a Board decision is rendered in these cases, the adjudication attorneys receive the Hearing Examiner's recommendation and draft Board Opinions based on the Board's decision. If the Board decision is appealed, the prosecution attorney assigned to the case usually handles the appeal in defense of the Board’s decision.
• Providing Advisory Opinions to Licensees
Pursuant to section 211.1 of the Liquor Code [47 P.S. § 2-211.1], the Office of Chief Counsel issues advisory opinions to licensees of the Board and their representatives regarding any subject matter relating to the Liquor Code or the Board’s Regulations. Such opinions are issued in response to written requests from licensees or their representatives. Each opinion contains a disclaimer to the effect that the opinion applies only to that specific factual scenario as it is viewed in light of the Board’s Regulations and the Liquor Code, that it does not insulate the licensee from consequences for conduct occurring prior to its issuance, and that the laws and policies upon which the opinion is based are subject to change by the Board or the General Assembly. Where relevant, copies of the Board's Regulations and Liquor Code sections are supplied with the opinions.
Advisory opinions are binding on the Pennsylvania State Police, Bureau of Liquor Control Enforcement (“Bureau”). In other words, if a licensee acts in accordance with an advisory opinion issued by the Office of Chief Counsel, the Opinion can be used as a defense against citation. However, such opinions are not provided in instances where the Bureau is conducting an investigation or when it has issued a citation to the licensee, which is still pending and concerns the same subject matter.
• Miscellaneous Matters
There are a number of areas in which the Office of Chief Counsel acts on a semi-regular basis that do not fall into the areas of licensing, personnel, contracts, ALJ appeals or legal opinions. One such area is providing assistance to the Office of Attorney General in tort litigation. There are a number of tort/personal injury cases which arise each year relative to the Board.
As an entity which sells alcohol, the Board is governed not only by the laws of Pennsylvania but by federal regulations dealing with alcohol. This Office interacts with the Federal Alcohol and Tobacco Tax and Trade Bureau ("TTB") on issues involving the Board as a wholesaler/retailer and TTB as the supervising agency.
The Office of Chief Counsel also spends a great deal of time suggesting, writing and commenting upon proposed legislation, often at the request of individual members of the General Assembly. The Office of Chief Counsel regularly provides analyses of relevant pending bills which are before the General Assembly. It does this by setting forth the bill and the proposed changes, comparing those changes to current law, outlining the legal and operational consequences, and offering recommended positions to the Board. Once laws are enacted, the Office of Chief Counsel provides a summary of those new laws or amendments to current laws on the Board's internet website.
The Office of Chief Counsel also reviews all proposed regulations originating from the Regulatory Coordinator and offers commentary and suggestions on those regulations. In some cases, the Office of Chief Counsel drafts the regulations as well. The Chief Counsel approves all proposed regulations for form and content before they are sent to the Board for its approval, and then on to the Independent Regulatory Review Commission.
In addition, the Office of Chief Counsel serves the role of legal counsel to the various bureaus within the Board. Further, the Office of Chief Counsel answers questions daily from the public with regard to the Liquor Code and Board Regulations.