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HomeMy WebLinkAbout13-521 Barna ADVICE OF COUNSEL April 15, 2013 Nicholas A. Barna, Esquire 831 Court Street Honesdale, PA 18431 13-521 Dear Mr. Barna: This responds to your letter of March 4, 2013, 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 deputy county treasurer with regard to simultaneously serving as a township tax collector. Facts: You have been authorized by Kelly J. Kyzer (“Ms. Kyzer”) to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Ms. Kyzer currently serves as a Deputy County Treasurer for Wayne County (“County”), Pennsylvania. Ms. Kyzer would like to run for the office of Tax Collector for South Canaan Township (“Township”), and if elected, she would like to continue serving as a Deputy County Treasurer for the County while also serving as the Township Tax Collector. You state that while Ms. Kyzer would make it known that she is currently working as a Deputy County Treasurer for the County, she would be careful not to use the County Treasurer’s Office or any of the personnel there in her political campaign for Township Tax Collector. You further state that no political activity would take place in the County Treasurer’s Office. Based upon the above submitted facts, you ask whether the Ethics Act would permit Ms. Kyzer to seek election as the Township Tax Collector and, if elected to such position, to simultaneously serve as a Deputy County Treasurer for the County and the Township Tax Collector. 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. Barna, 13-521 April 15, 2013 Page 2 As a Deputy County Treasurer for the County, Ms. Kyzer is a public official/public employee subject to the Ethics Act. If Ms. Kyzer would be elected as the Township Tax Collector, upon assuming said position, she would in that capacity be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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 following terms that pertain 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. Barna, 13-521 April 15, 2013 Page 3 In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act does not prohibit a public official/public employee from seeking another public position. Rather, the Ethics Act prohibits a public official/public employee from simultaneously holding two positions that are statutorily incompatible or that result in an inherent conflict. Therefore, the Ethics Act would not prohibit Ms. Kyzer from running for the office of Township Tax Collector while serving as a Deputy County Treasurer for the County. As for 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) of the Ethics Act. Based upon the submitted facts, there would be an inherent conflict that would preclude Ms. Kyzer’s proposed simultaneous service as a Deputy County Treasurer for the County and the Township Tax Collector. An inherent conflict would exist because the responsibilities of the Township Tax Collector and County Treasurer are part of a “check and balance” system designed to maintain appropriate accounting of funds due the County and received by it. Specifically, the Township Tax Collector is responsible for collecting County taxes and paying them over to the County Treasurer (53 P.S. § 66001; 72 P.S. § 5511.25), while the County Treasurer is responsible for receiving and accounting for all such moneys (16 P.S. § 1760). A Deputy County Treasurer may be required to perform duties of the County Treasurer in this regard and/or to oversee others performing such duties. 16 P.S. §§ 408, 806. Consequently, simultaneous service as a Deputy County Treasurer for the County and the Township Tax Collector would be prohibited pursuant to Section 1103(a) of the Ethics Act. Cf., McCain, supra; Johnson, Opinion 86-004; Nelson, Opinion 85-009. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Deputy County Treasurer for Wayne County (“County”), Pennsylvania, Kelly J. Kyzer (“Ms. Kyzer”) is 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. The Ethics Act would not prohibit Ms. Kyzer from running for the office of Tax Collector for South Canaan Township (“Township”) while serving as a Deputy County Treasurer for the County. If Ms. Kyzer would be elected as the Township Tax Collector, upon assuming said position, she would in that capacity be a public official subject to the provisions of the Ethics Act. Based upon the submitted facts, there would be an inherent conflict that would preclude simultaneous service as a Deputy County Treasurer for the County and the Township Tax Collector. Consequently, such simultaneous service would be prohibited pursuant to Section 1103(a) of the Ethics Act. 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, an 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 Barna, 13-521 April 15, 2013 Page 4 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 Chief Counsel