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HomeMy WebLinkAbout1564 Ahner In Re: Barbara Ahner, : File Docket: 09-029 Respondent : X-ref: Order No. 1564 : Date Decided: 10/19/10 : Date Mailed: 10/22/10 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Ahner, 09-029 Page 2 I.ALLEGATIONS: That Barbara A. Ahner, a public official/public employee in her capacity as Tax Collector of Penn Forest Township, Carbon County, violated Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1105(b), when she used the authority of her public position to increase her compensation as Tax Collector by charging real estate tax certification fees and duplicate tax bill fees which were not approved by the Penn Forest Township Board of Supervisors; and when she failed to list all sources of income in excess of $1,300.00 on Statement of Financial Interests forms filed for calendar years 2005, 2006 and 2007. II.FINDINGS: 1. Barbara Ahner has served as the Penn Forest Township Tax Collector since approximately 1980. a. Penn Forest Township is a Township of the Second Class in Carbon County governed by a five (5) Member Board of Supervisors. 2. The position of Penn Forest Township Tax Collector is responsible for collecting real estate and/or per capita taxes from Township residents for Carbon County, the Jim Thorpe Area School District and Penn Forest Township. a. Penn Forest Township has a per capita tax annually, but does not always have an annual real estate tax. 3. As Tax Collector, Barbara Ahner performs her duties from her residence. 4. Compensation for the position of Penn Forest Township Tax Collector is set and approved by the Township Board of Supervisors. 5. Compensation for the three (3) most recent four (4) year Tax Collector terms was approved by the Penn Forest Township Board of Supervisors on February 5, 2001, February 7, 2005, and February 2, 2009. 6. Minutes of the Penn Forest Township Board of Supervisors meetings held on February 5, 2001, February 7, 2005, and February 2, 2009, include the following recorded discussions and official actions taken setting compensation for the position of Tax Collector: a. February 5, 2001: “Tax Collector: By motion of Walter Hunsicker, seconded by Josiah Behrens, the annual salary of the Tax Collector for term beginning January 2002 was set at $6,200. Roll call vote, all in favor.” Present: Harry Connolly, Josiah Behrens, Walter Hunsicker, James Scarpati Absent: Judith Knappenberger Solicitor: Thomas Nanovic b. February 7, 2005: “The Board needs to set the Tax Collectors compensation for the next four year term by resolution; this resolution must be acted upon prior to February 15, 2005. Barbara A. Ahner was present to discuss this with the Board. Barbara explained to the Board that for the year 2005, she will get paid $2.30 per bill collected for Carbon County. Barbara said she sends out approximately 15,500-16,000 bills a year. Barbara said that Jim Thorpe Area School District pays her a flat salary of $3,100.00 and then also pays Ahner, 09-029 Page 3 her $1.20 for the first 2,000 bills sent out, $.90 for the next 2,000 bills sent out and the remainder of the bills that are sent are paid at $.60. Barbara explained for the last four years, the Penn Forest Township Board of Supervisors paid her a flat rate of $6,200.00. At this point, Barbara explained that she was only collecting the per capita tax for Penn Forest Township since the Board eliminated the real estate tax. Tom Nanovic questioned how much was collected approximately when she did collect real estate tax. Barbara said off the top of her head approximately $400,000.00 for real estate and for this year per capita is was [sic] around $13,000.00 Barbara Ahner and Ellen Kattner felt the real estate tax needed to be put back on. They felt the Board could not keep dipping into the kitty. Behrens disagreed and felt the kitty keeps going up. Harry Connolly asked Barbara what kind of raise she was considering. Barbara did not say an amount, she just wanted a fair increase. Barbara did explain that she does the same amount of work for the county, school and Township. A motion was made by Walter Hunsicker to increase Tax Collector’s pay to $7,000.00 for the next four years. The motion died. A motion was made by Harry Connolly, seconded by Walter Hunsicker to set the Tax Collector’s rate for the first year at $7,000.00 and then for each year after to give a 3.5% increase, making the first year $7,000.00, the second year $7,245.00, third year $7,500.00 and the fourth year $7,763.00, setting these rates for compensation for Tax Collector will be approved by Resolution No. 2005-01. Role [sic] call vote all in favor, Tax Collector salary for the next four year term is as follows:” $7,000.00 for the year 2006 $7,245.00 for the year 2007 $7,500.00 for the year 2008 $7,763.00 for the year 2009 1. Related is Township Resolution No. 05-01 dated February 7, 2005. This resolution corresponds to the prior motion and just documents the annual compensation approved by the Board for the elected Tax Collector. It is important to note that there is no reference to Real Estate Tax Certifications in either the minutes or the specific Resolution. Present: Harry Connolly, Josiah Behrens, Walter Hunsicker, Warren Reiner Absent: Judith Knappenberger Solicitor: Thomas Nanovic c. February 2, 2009: “Barbara A. Ahner gave the Board a letter saying it is that time again to set the salary for the Tax Collector of Penn Forest Township for a four term to begin on January 1, 2010. The salary is to be set be (before) February 15, 2009. The current salary for 2009 is $7,763.00. In the past four years the salary was based on a 3.5% yearly increment. Having served as your Tax Collector for seven terms, any consideration on this matter will be greatly appreciated. Tammy asked the Board if they wanted to set the salary for 2010, 2011, 2012, and 2013? Alan Katz explained the employees received no raises and the Supervisors had to put a $3 mill tax and he could not see giving the Tax Collector a raise as well. Alan explained that he was approached by people having a hard time obtaining tax certifications. Paul Montemuro explained that residents had a hard time getting in touch with Barbara on the phone. Paul explained that the phone either rang, rang, rang Ahner, 09-029 Page 4 or was busy for hours. A motion was made by Alan Katz, seconded by Warren Reiner, to keep the Tax Collector’s salary the same salary which is $7,763.00 per year for the year 2009, 2010, 2011, 2012, and 2013 and in addition when the next Tax Collector runs to offer that Tax Collector space in the Township Municipal Building at no charge and to suggest that the Tax Collector have hours during the discount period, the base period and the penalty period. Roll call vote, Katz-yes; Reiner-yes; Knappenberger-yes; Montemuro-yes; Connolly-no.” 7. The Penn Forest Township Board of Supervisors did not take any official action authorizing the Tax Collector to charge and/or receive payment for the certification of real estate taxes or duplicate tax bills prior to October 20, 2009. 8. Barbara Ahner did not request permission to charge fees for duplicate tax bills or real estate tax certifications as part of the tax collector compensation motions/resolutions approved by the Penn Forest Township Board of Supervisors on February 5, 2001, February 7, 2005, and February 2, 2009. 9. Around 2000, Ahner requested approval from the Penn Forest Township Board of Supervisors to charge a fee for real estate tax certifications and duplicate tax bills. a. The Penn Forest Township Board of Supervisors did not take any action on Ahner’s request. b. Township Solicitor Thomas Nanovic did not issue a solicitor’s advice on the request. 10. Real Estate Tax Certifications are generally required by title/abstract companies as part of real estate settlements. a. Closing companies pay the fees charged by Tax Collectors for tax certifications as a cost of doing business. b. Closing companies often pass these fees along to their customers as part of settlement costs. 11. A Real Estate Tax Certification gets initiated as a result of a request submitted to the Tax Collector by an individual, title/abstract company or law firm on behalf of a client. a. The Tax Collector would research collection records and provide the requesting party with a certification indicating whether or not the real estate taxes were paid on the subject property. 12. Tax Collectors generally charge a fee for this service which is set by ordinance or resolution of the municipality. a. No such approval or authorization was given by the Penn Forest Township Board of Supervisors prior to October 20, 2009. 13. Duplicate tax bills are often requested by property owners or settlement companies when the original tax bill is unavailable. 14. Throughout her tenure as Tax Collector, Ahner has routinely charged citizens, law firms, and title/abstract and closing companies a $10.00 fee for real estate tax certifications and duplicate tax bills. Ahner, 09-029 Page 5 a. Ahner charged these fees even though such fees were never authorized by the Penn Forest Township Board of Supervisors. b. Ahner retained all of the tax certification or duplicate tax bill fees collected from at least 2000 until October 20, 2009. 15. Ahner’s practice of charging a fee for tax certifications and duplicate tax bills without an enabling resolution or ordinance went unchallenged until approximately June 1, 2009. a. At the Penn Forest Township Board of Supervisors June 1, 2009, meeting, a letter from resident Richard J. Yale was read into the official record requesting information on tax certifications issued and enabling legislation. 16. On May 28, 2009, Penn Forest Township received correspondence dated May 26, 2009, from Richard J. Yale relating to fees being charged for real estate tax certifications. Yale’s May 26, 2009, correspondence included the following requests: a. “It has come to my attention that the Penn Forest Township Tax Collector is charging fees for tax certifications and tax duplicates without the Penn Forest Township Board of Supervisors enacting an ordinance authorizing the Tax Collector to charge fees for the aforementioned. Also, I would appreciate the Board of Supervisors acknowledging by written response to this communication if they have been aware of this practice and also condone this practice. Further, please find annexed here to a standard Right To Know request form for numerous related documents. Please advise me of the required fee and I will gladly forward the required fee to your office. Due to my schedule I will not be able to attend the June Supervisors meeting and address the Board of Supervisors concerning these matters during the public comment portion of the Supervisors meeting. Therefore, I will rely on this letter as a substitute. I would appreciate if this latter (letter) is read at the June Supervisors meeting and made part of the public record. Thank you in advance for you [sic] anticipated cooperation regarding the aforementioned matters.” b. Yale’s letter was addressed by the Board on June 1, 2009. 17. Minutes from the Supervisors June 1, 2009, meeting include, under public comment, the request letter received from Richard J. Yale and Board action as follows: “Attached to the letter is a standard Right To Know request form asking for all Tax Collector Certification forms January 1, 1985 to present, all Tax Collector monthly tax certifications January 1, 2000 to present, copies of any and all ordinances authorizing Tax Collector to charge fees for Tax Certifications and tax duplicates. Alan Katz felt that the Board should ask Richard Yale for at least $150.00 to start. A motion was made by Alan Katz, seconded by Judith Knappenberger, to charge $150.00, if the $150.00 is used ask for another $150.00. Roll call votes, all in favor.” 18. Between June 1, 2009, and October 20, 2009, minutes from Penn Forest Township Board of Supervisors meetings include extensive discussion resulting in an ordinance being enacted on October 20, 2009, establishing a fee for tax certifications and duplicate tax bills. 19. The following timeline highlights information contained in Board of Supervisors Ahner, 09-029 Page 6 meeting minutes relating to tax certification and duplicate tax bill fees, covering the period June 1, 2009, through October 20, 2009: a. June 1, 2009 Letter from Richard J. Yale questioning authorization of tax certification and duplicate tax bill fees. b. July 6, 2009 Extensive discussion about establishing a tax certification/duplicate tax bill fee ordinance and fees to be charged. c. August 3, 2009 Extensive discussion about tax certification and duplicate tax bill fees, an ordinance and requests handled as open records requests. d. August 26, 2009 Discussion on tax certification/duplicate tax bill fees and those changed in nearby Townships. e. October 5, 2009 Consideration of tax certification ordinance number 2009-02. f. October 20, 2009 Approval of tax certification ordinance number 2009-02. Tax certification fees and duplicate tax bill set at $10.00 each. 20. On October 20, 2009, the Penn Forest Township Board of Supervisors enacted Ordinance Number 2009-02 authorizing the Tax Collector to charge and receive $10.00 for each tax certification or duplicate tax bill issued. a. The effective date of Ordinance Number 2009-02 was October 25, 2009. 21. Penn Forest Township Ordinance #2009-02 did not include any language making the authorization retroactive. a. Item six of Ordinance #2009-02 provides “effective date: this ordinance shall become effective five (5) days after adoption.” b. Ordinance #2009-02 was adopted by the Penn Forest Township Board of Supervisors on October 20, 2009. 22. Between August 1, 2004, and October 24, 2009, Barbara Ahner typically charged property owners, law firms, and title, closing and/or abstract companies between five and fifteen dollars per real estate tax certification or duplicate tax bill. a. Ahner generally would charge a fee of $10.00 per document requested. 23. For the convenience of the requesting party, Ahner had a request letter on her letterhead for use when requesting tax information from her. a. Information contained on the request letter includes in part: on the standard form containing the name “Penn Forest Township Barbara A. Ahner Unionville Road HC2, Box 2468, Jim Thorpe, PA 18229.” b. Listed on the bottom of the request form is a section detailing charges. “Charges: $10.00 each tax certification, $10.00 per bill preparation.” Ahner, 09-029 Page 7 c. This stationery does not make mention [of] Ahner’s position of tax collector. Also requested on the form is that a separate check be made out for the payment of any taxes collected at the time of settlement. 24. Between August 1, 2004, and October 24, 2009, Barbara Ahner received payments from no less than forty-seven (47) different entities for the issuance of real estate tax certifications without authorization to collect such payments from the Penn Township Board of Supervisors; the names and identities of said entities are listed below: Allco Abstract, Inc. Shannon Finney Rhonda Gibson Coopersburg, PA Akron, OH Allen, TX 75012 American Tax Reporting Full Spectrum Services Joseph P. Gilroy Real Estate Haltom City, TX Mount Laurel, NJ Kingston, PA Effort Abstract Inc. Michael Garfield Law Office of Velitsky and Effort, PA Albrightsville, PA Matika, Joseph J. Matika, Esq Summit Hill, PA LPS Property Tax Direct LPS Property Tax Direct Wells Fargo Villa Rica, GA Tampa, FL Des Moines, IA LPS Lending Process Serv. LPS Property Tax Direct Moyer Abstract Pasadena, CA 91107 Tampa, FL 33629 Jim Thorpe, PA 18229 LPS Property Tax Jennifer Meade National Tax Search Direct-Solutions Akron, OH Chicago, IL Dallas, TX 75227 National Advantage Pennsbury Abstract Inc. National Tax Information Coraopolis, PA Perkasie, PA Englewood, CO Phelan Hallinan & TRG Settlement Services Pocono Area Abstract Co Schmieg, LLP Mt. Laurel, NJ Blakeslee, PA Mt. Laurel, NJ Joseph J. Velitsky, Esq Real Estate Settlement Wells Fargo Home Mortgage Summit Hill, PA Pen Argyl, PA Des Moines, IA Reserve Settlement Service Link Randi Schwark Services, LLC Aliquippa, PA Troy, MI East Stroudsburg, PA Signature Information TA Global Abstract Signature Information Solutions LLC Albrightsville, PA Trenton, NJ Trenton, NJ Title Source Inc. Paramount Abstract, Inc Homestead Land Services Inc Troy, MI Jim Thorpe, PA Mount Pocono, PA Carbon Search & Northeast Land Transfer Consumers Land Abstract, Inc. Settlement Services Inc Bartonsville, PA Stroudsburg, PA Lehighton PA Millennium Abstract Co. Commerce Abstract Co Inc Wetzel Abstract LLC Huntingdon Valley, PA King of Prussia, PA Lake Harmony, PA Grapevine Settlement Jane F. Engler, Esq. Thomas A. Nanovic, Esq Services, Inc. Jim Thorpe, PA Jim Thorpe, PA Ahner, 09-029 Page 8 Shawnee-on-Delaware, PA Michael L. Ozalas, Esquire Timothy B. Fisher, Esquire Jim Thorpe, PA Mount Pocono, PA 25. Ahner maintained personal financial accounts at Jim Thorpe National Bank (JTNB) which she utilized to deposit tax certification and duplicate tax bill fees. a. Ahner deposited checks she received from law firms [and] title, closing and abstract companies for certifications and duplicate tax bills into her JTNB accounts ending in 5592 checking and 7200 savings. 26. JTNB records [covering] the period May 27, 2005, through May 10, 2006, evidence that payments totaling $1,525.00 were received by Ahner for real estate tax certifications and duplicate tax bills. a. Not included in the above calculation of $1,525.00 are payments which are detailed in the findings set forth below. 27. Between August 1, 2004, and October 24, 2009, Ahner received additional payments totaling at least $36,404.99 for 3,228 tax certifications and 282 duplicate tax bills not included in the previous finding. a. Annual totals were as follows: Year Total Certifications Duplicate Bills 2004 (August on) $ 2,860.00 234 44 2005 $10,275.00 919 73 2006 $10,998.84 966 81 2007 $ 6,591.15 587 54 2008 $ 4,045.00 368 27 2009 (Until October 24) $ 1,635.00 154 3 Totals $36,404.99 3,228 282 28. Between August 1, 2004, and October 25, 2009, Barbara Ahner received a private pecuniary gain as a result of charging and retaining fees for real estate tax certifications and duplicate tax bills without authorization from the Penn Forest Township Board of Supervisors. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION THAT BARBARA AHNER FAILED TO DISCLOSE SOURCES OF INCOME ON STATEMENTS OF FINANCIAL INTERESTS. 29. Ahner, in her official capacity as Penn Forest Township Tax Collector, was annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year. a. Section 1105(b)(5) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1105(b)(5), requires “the name and address of any direct or indirect source of income totaling in the aggregate $1,300.00 or more.” 30. Statement of Financial Interests forms on file with the Township include the following [forms] for Ahner: a. Calendar Year: 2008 Dated: 03/10/09 on form SEC-1 Rev. 01/09 Position: Tax Collector/Candidate Ahner, 09-029 Page 9 Creditors: None Direct/Indirect Income: Carbon County, Penn Forest Township, Jim Thorpe Area School District All other financial interests: None b. Calendar Year: 2008 Dated: 01/26/09 on form SEC-1 Rev. 01/09 Position: Tax Collector Creditors: None Direct/Indirect Income: Penn Forest Township, Carbon County, Jim Thorpe Area School District All other financial interests: None c. Calendar Year: Undated (2007) Dated: 01/15/08 on form SEC-1 Rev. 01/08 Position: Tax Collector Creditors: None Direct/Indirect Income: Penn Forest Township, Jim Thorpe Area School District, Carbon County All other financial interests: None d. Calendar Year: Not listed (2006) Dated: 12/29/06 on form SEC-1 Rev. 01/07 Position: Tax Collector Creditors: None Direct/Indirect Income: Penn Forest Township, Carbon County, Jim Thorpe Area School District All other financial interests: None e. Calendar Year: 2005 Dated: 01/16/06 on form SEC-1 Rev. 01/06 Position: Tax Collector Creditors: None Direct/Indirect Income: Penn Forest Township, Carbon County, Jim Thorpe Area School District All other financial interests: None 31. Ahner did not disclose the receipt of income in excess of $1,300.00 she received from charging for tax certifications or duplicate tax bills on Statements of Financial Interests filed for calendar years 2005, 2006 or 2007. a. Ahner received income in excess of $1,300.00 annually for the issuance of tax certifications and duplicate tax bills from the following entities: Calendar Year Entity Total 2005 Roberti & Roberti/Paramount Abstract $3,890.00 Moyer Abstract $2,800.00 2006 Roberti & Roberti/Paramount Abstract $4,140.00 Moyer Abstract $2,630.00 2007 Roberti & Roberti/Paramount Abstract $1,950.00 Moyer Abstract $1,770.00 32. Ahner also did not disclose the receipt of all income she received from issuing tax certifications and duplicate tax bills on Federal Income Tax returns filed for calendar years 2004 through 2008. 33. Ahner’s State and Federal Income Tax returns detail the following sources of Ahner, 09-029 Page 10 income during calendar years 2004 through 2008 not including Social Security benefits which are reported as a separate line item. Nothing is reported under the line item other income on these returns. 2004 Source Amount Form Carbon County $29,131.00 W-2 Jim Thorpe SD. $14,338.10 W-2 Penn Forest Twp. $ 6,200.00 W-2 Moyer Abstract, Inc. $ 2,950.00 1099 $52,619.10 2005 Source Amount Form Carbon County $30,976.50 W-2 Jim Thorpe SD. $14,953.86 W-2 Penn Forest Twp. $ 6,200.00 W-2 Moyer Abstract, Inc. $ 2,802.97 1099 $54,933.33 2006 Source Amount Form Carbon County $34,699.32 W-2 Jim Thorpe SD. $16,278.93 W-2 Penn Forest Twp. $ 7,000.00 W-2 Pruco Life Insurance$ 7,200.00 1099 (PA Filing Only) Moyer Abstract, Inc. $ 2,630.00 1099 * $60,608.25 (Federal) ($67,608.25 State) 2007 Source Amount Form Carbon County $35,586.80 W-2 Jim Thorpe SD. $15,806.03 W-2 Penn Forest Twp. $ 7,245.00 W-2 Moyer Abstract, Inc. $ 1,750.00 1099 $60,387.83 2008 Source Amount Form Carbon County $37,718.10 W-2 Jim Thorpe SD. $18,620.58 W-2 Penn Forest Twp. $ 7,500.00 W-2 Pruco Life Insurance$ 600.00 1099 (PA Filing Only) Moyer Abstract, Inc. $ 1,160.00 1099 $64,999.68 (Federal) ($65,598.68 State) * [sic]. [There appears to be a $200.00 discrepancy in the calculation, which would not affect the outcome of this case.] 34. Barbara Ahner failed to disclose fees she received in excess of $1,300.00 on Statement of Financial Interests forms filed for calendar years 2005, 2006 and 2007. III.DISCUSSION: As the Tax Collector for Penn Forest Township (“Township”) since approximately 1980, Respondent Barbara Ahner (hereinafter also referred to as “Respondent,” Ahner, 09-029 Page 11 “Respondent Ahner,” and “Ahner”) has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Ahner violated Sections 1103(a) and 1105(b) of the Ethics Act when she, as the Township Tax Collector, used the authority of her public position to increase her compensation as Tax Collector by charging real estate tax certification fees and duplicate tax bill fees which were not approved by the Township Board of Supervisors; and when she failed to list all sources of income in excess of $1,300.00 on Statement of Financial Interests (“SFI”) forms filed for calendar years 2005, 2006 and 2007. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the Statement of Financial Interests form must provide. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Ahner, 09-029 Page 12 Respondent Ahner has served as the Township Tax Collector since approximately 1980. The Township is a Second Class Township governed by a five Member Board of Supervisors. As the Township Tax Collector, Ahner is responsible for collecting real estate and/or per capita taxes from Township residents for Carbon County, the Jim Thorpe Area School District and the Township. Ahner’s compensation as the Township Tax Collector is set and approved by the Township Board of Supervisors. Prior to October 20, 2009, the Township Board of Supervisors did not take any official action authorizing the Tax Collector to charge and/or receive payment for the certification of real estate taxes or duplicate tax bills. Throughout her tenure as Tax Collector, Ahner has routinely charged citizens, law firms, and title/abstract and closing companies a $10.00 fee for real estate tax certifications and duplicate tax bills. Ahner charged these fees even though such fees were never authorized by the Township Board of Supervisors. Ahner retained all of the tax certification or duplicate tax bill fees collected from at least 2000 until October 20, 2009. Ahner’s practice of charging a fee for tax certifications and duplicate tax bills without an enabling resolution or ordinance went unchallenged until approximately June 1, 2009, when a Township resident requested information from the Township regarding tax certifications issued and enabling legislation. Minutes from Township Board of Supervisors meetings between June 1, 2009, and October 20, 2009, include extensive discussion resulting in the enactment on October 20, 2009, of Ordinance Number 2009-02, which authorized the Tax Collector to charge and receive $10.00 for each tax certification or duplicate tax bill issued. Ordinance Number 2009-02 did not include any language making the authorization retroactive. The effective date of Ordinance Number 2009-02 was October 25, 2009. Between August 1, 2004, and October 24, 2009, Ahner received payments from no less than 47 different entities for the issuance of real estate tax certifications without authorization from the Township Board of Supervisors to collect such payments. Bank records for Ahner’s personal financial accounts at Jim Thorpe National Bank establish that from May 27, 2005, through May 10, 2006, payments totaling $1,525.00 were received by Ahner for real estate tax certifications and duplicate tax bills. Furthermore, between August 1, 2004, and October 24, 2009, Ahner received additional payments totaling at least $36,404.99 for 3,228 tax certifications and 282 duplicate tax bills. The parties have stipulated that between August 1, 2004, and October 25, 2009, Ahner received a private pecuniary gain as a result of charging and retaining fees for real estate tax certifications and duplicate tax bills without authorization from the Township Board of Supervisors. As detailed in Fact Findings 31, 31a, and 34, Ahner failed to disclose on her SFIs for calendar years 2005, 2006, and 2007 certain sources of income in excess of $1,300.00 consisting of fees for tax certifications or duplicate tax bills. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: Ahner, 09-029 Page 13 3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Ahner’s receipt of compensation by charging real estate tax certification fees and duplicate tax bill fees, as Tax Collector, which fees were not approved by the Penn Forest Township Board of Supervisors. b. That a violation of Section 1105(b) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1105(b) occurred when Ahner filed deficient Statements of Financial Interests for calendar years 2005, 2006, and 2007, when she failed to list all sources of income in excess of $1,300.00. 4. Ahner agrees to make payment in the amount of $20,000.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Ahner agrees to file Amended Statements of Financial Interests listing all sources of income in excess of $1,300.00 with Penn Forest Township, through the Pennsylvania State Ethics Commission, for calendar years 2005, 2006, and 2007 within thirty (30) days of the issuance of the final adjudication in this matter. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement, it is clear that a violation of Section 1103(a) of the Ethics Act occurred in relation to Ahner’s receipt of compensation by charging real estate tax certification fees and duplicate tax bill fees that were not approved by the Township Board of Supervisors. Ahner used the authority of her public office as Township Tax Collector when she charged and received unauthorized real estate tax certification fees and duplicate tax bill fees during the time period under review. But for being the Township Tax Collector, Ahner would not have been in a position to provide tax certifications or duplicate tax bills, or to impose a fee for providing them. Ahner’s uses of the authority of her public office as Township Tax Collector resulted in a private pecuniary gain to Ahner of at least $37,929.99 ($1,525 plus $36,404.99), consisting of such unauthorized fees received between August 1, 2004, and October 24, 2009. Ahner, 09-029 Page 14 We hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Ahner’s receipt of compensation by charging real estate tax certification fees and duplicate tax bill fees, as Tax Collector, which fees were not approved by the Township Board of Supervisors. Cf., Walter, Order 1429; Trexler, Order 1353; Grogan, Order 972; Merriman, Order 933; Thee, Order 919. We further hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Ahner filed deficient SFIs for calendar years 2005, 2006, and 2007, when she failed to list all sources of income in excess of $1,300.00. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $20,000.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has further agreed to file with the Township, through this Commission, amended SFIs listing all sources of income in excess of $1,300.00 for calendar years 2005, 2006, and 2007, within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Respondent Ahner is directed to make payment in the amount of $20,000.00 payable to the Commonwealth of th Pennsylvania and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Respondent Ahner is further directed to file with the Township, through this Commission, amended SFIs listing all sources of income in excess of $1,300.00 for th calendar years 2005, 2006, and 2007, by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As the Tax Collector for Penn Forest Township (“Township”) since approximately 1980, Respondent Barbara Ahner (“Ahner”) has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Ahner violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when she received compensation by charging real estate tax certification fees and duplicate tax bill fees, as Tax Collector, which fees were not approved by the Township Board of Supervisors. 3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Ahner filed deficient Statements of Financial Interests for calendar years 2005, 2006, and 2007, when she failed to list all sources of income in excess of $1,300.00. In Re: Barbara Ahner, : File Docket: 09-029 Respondent : Date Decided: 10/19/10 : Date Mailed: 10/22/10 ORDER NO. 1564 1. As the Tax Collector for Penn Forest Township (“Township”), Barbara Ahner (“Ahner”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when she received compensation by charging real estate tax certification fees and duplicate tax bill fees, as Tax Collector, which fees were not approved by the Township Board of Supervisors. 2. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Ahner filed deficient Statements of Financial Interests (“SFIs”) for calendar years 2005, 2006, and 2007, when she failed to list all sources of income in excess of $1,300.00. 3. Per the Consent Agreement of the parties, Ahner is directed to make payment in the amount of $20,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 4. Ahner is further directed to file with the Township, through this Commission, amended SFIs listing all sources of income in excess of $1,300.00 for calendar th years 2005, 2006, and 2007, by no later than the thirtieth (30) day after the mailing date of this Order. 5. Compliance with Paragraphs 3 and 4 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ Louis W. Fryman, Chair