HomeMy WebLinkAbout12-511 Kiernan
ADVICE OF COUNSEL
February 24, 2012
Gary Kiernan
98 Bethel Hill Road
Susquehanna, PA 18847
12-511
Dear Mr. Kiernan:
This responds to your letters dated January 3, 2012, and January 11, 2012, by
which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a business
manager for a school district with regard to simultaneously serving as the tax collector for a
township located within the school district.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are employed as the Business Manager for the Susquehanna Community
School District (“School District”), located in Susquehanna County (“County”),
Pennsylvania. You have submitted an excerpt from your employment contract as well as
copies of School District policies setting forth certain duties of the position of School
District Business Manager, which documents are incorporated herein by reference.
Harmony Township (“Township”) is located within the School District. You state that
you have been asked to run for the office of Tax Collector for the Township and that if
elected, you would be required to collect taxes for the County, the Township, and the
School District.
You have submitted copies of School District policies pertaining to the levy and
collection of School District taxes, which documents are incorporated herein by reference.
It is noted that such policies provide, inter alia, that “[a]ll taxes shall be collected and
remitted to the district Treasurer with a report detailing the sources of tax revenues,” and
“[a]ll monies received from the tax collectors shall be deposited on the day of receipt or as
soon as possible, and all receipts shall be supported by documentary evidence.” School
District Policy 606.
You state that the main function performed by the School District business office in
connection with collected property taxes is to deposit the receipts into the School District’s
bank account as they are submitted by the Tax Collector. You state that the task of
Kiernan,12-511
February 24, 2012
Page 2
depositing the monies received is performed by someone other than you. You further state
that the School District pays a Tax Collector $7.00 for each bill successfully collected and
that such payment is made based upon a monthly report submitted by the Tax Collector
and reconciled by the School District School Board Secretary. You state that yearend tax
reconciliations are performed by the School District School Board Secretary.
Based upon the above submitted facts, you ask whether the Ethics Act would permit
you to simultaneously serve as the Business Manager for the School District and the Tax
Collector for the Township.
Discussion:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester to truthfully disclose all of the material facts
relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense
to the extent the requester has truthfully disclosed all of the material facts.
As the Business Manager for the School District, you are a public official/public
employee subject to the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
(j)Voting conflict.—
Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed with
the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a matter
before it because the number of members of the body required
to abstain from voting under the provisions of this section
makes the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the
case of a three-member governing body of a political
subdivision, where one member has abstained from voting as
a result of a conflict of interest and the remaining two members
of the governing body have cast opposing votes, the member
who has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
Kiernan,12-511
February 24, 2012
Page 3
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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.
"Authority of office or employment."
The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not
appear to be any statutorily-declared incompatibility precluding simultaneous service in the
positions in question.
Turning to the question of conflict of interest, where simultaneous service would
place the public official/public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent
conflict would exist, it would appear to be impossible, as a practical matter, for the public
official/public employee to function in the conflicting positions without running afoul of
Section 1103(a). Absent a statutorily-declared incompatibility or an inherent conflict under
Section 1103(a), the Ethics Act would not preclude an individual from simultaneously
serving in more than one position. However, in each instance of a conflict of interest, the
individual would be required to abstain, and in each instance of a voting conflict, to abstain
and satisfy the disclosure requirements of Section 1103(j) as set forth above.
In McCain, supra, the Commission determined that a school district secretary who
was responsible for receiving and auditing the township’s tax collector’s reports would
have an inherent conflict if she would also become the township tax collector:
Despite your contention that there is no place in the process for
misconduct, given the oversight of the Business Manager and the County, as
well as the performance of certain audits, the functions which you currently
perform for the School District are an important and practical component of a
check-and-balance system designed to ensure the propriety of the tax
collection process. Permitting an individual performing such a role to audit
her own Tax Collector reports would undermine the check-and-balance
system.
Kiernan,12-511
February 24, 2012
Page 4
McCain, at 7.
In this case, based upon the submitted facts, you are the Business Manager for the
School District, and the business office deposits the receipts as submitted by the Tax
Collector into the School District’s bank account. Although you state that the task of
depositing the receipts is performed by someone other than you, it would appear that such
person is your subordinate. It is not clear from the submitted facts whether the role of the
business office is part of a check-and-balance system for the School District.
Therefore, based upon the submitted facts, you are advised that there would be an
inherent conflict that would preclude your simultaneous service as the Business Manager
for the School District and the Tax Collector for the Township unless neither you, as the
Business Manager of the School District, nor any of your subordinate(s) would perform a
role as to the review or reconciliation of taxes collected for the School District.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
As the Business Manager for the Susquehanna Community School
District (“School District”), located in Susquehanna County (“County”), Pennsylvania, you
are a public official/public employee subject to the provisions of the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted
facts, there would be an inherent conflict that would preclude your simultaneous service as
the Business Manager for the School District and the Tax Collector for Harmony Township
(“Township”) unless neither you, as the Business Manager of the School District, nor any
of your subordinate(s) would perform a role as to the review or reconciliation of taxes
collected for the School District. Lastly, the propriety of the proposed course of conduct
has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, this Advice is a complete defense in
any enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received at
the Commission within thirty (30) days of the date of this Advice pursuant
to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service, or by FAX
transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
Robin M. Hittie
Kiernan,12-511
February 24, 2012
Page 5
Chief Counsel