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Home My WebLink About13-553 Price ADVICE OF COUNSEL July 23, 2013 Gwilym A. Price, III, Esquire 129 South McKean Street Butler, PA 16001-6029 13-553 Dear Mr. Price: This responds to your letters dated May 8, 2013, and June 7, 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 prohibition or restrictions upon an individual with regard to simultaneously serving as a borough tax collector and a borough treasurer. Facts: As Solicitor for East Butler Borough (“Borough”), located in Butler County, Pennsylvania, you have been authorized by Borough Council to request an advisory from the Pennsylvania State Ethics Commission under the following submitted facts. In 2011, the population of the Borough was 732. You state that it appears that the difficulties in locating a qualified Borough Tax Collector and a qualified Borough Treasurer have led to the same individual desiring to serve in both Borough positions. You ask whether the Ethics Act would permit an individual to simultaneously serve in the positions of Borough Tax Collector and Borough Treasurer. It is administratively noted that the Borough Tax Collector is an elected position (see, 53 P.S. § 45806) and that the Borough Treasurer is an appointed position (see, 53 P.S. § 46005). 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. The Borough Tax Collector and the Borough Treasurer are public officials subject to the provisions of the Ethics Act. Price, 13-553 July 23, 2013 Page 2 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. 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. Price, 13-553 July 23, 2013 Page 3 It is administratively noted that the Borough Code provides, in pertinent part, as follows: § 46104. Appointments; incompatible offices (a) Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or member of council shall receive compensation therefor. . . . (c) Where there is no incompatibility in fact, and subject to subsection (a) as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. . . . (g) Nothing contained in this section shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. . . . 53 P.S. § 46104. You are advised that there does not appear to be any statutorily-declared incompatibility that would preclude an individual from simultaneously serving as the Borough Tax Collector and the Borough Treasurer. 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 an individual from simultaneously serving as the Borough Tax Collector and the Borough Treasurer. An inherent conflict would exist because the responsibilities of the Borough Tax Collector and the Borough Treasurer are part of a “check and balance” system designed to maintain appropriate accounting of funds due the Borough and received by it. Specifically, the Borough Tax Collector is responsible for collecting Borough taxes and paying them over to the Borough Treasurer (53 P.S. § 46086; 72 P.S. § 5511.25), while the Borough Treasurer is responsible for receiving and accounting for all such moneys (53 P.S. § 46106). Consequently, simultaneous service as the Borough Tax Collector and the Borough Treasurer would be prohibited pursuant to Section 1103(a) of the Ethics Act. See, Johnson, Opinion 86-004; cf., McCain, supra. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: The Tax Collector and the Treasurer for East Butler Borough (“Borough”), located in Butler County, Pennsylvania, are public officials subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § Price, 13-553 July 23, 2013 Page 4 1101 et seq. Based upon the submitted facts, there would be an inherent conflict that would preclude simultaneous service as the Borough Tax Collector and the Borough Treasurer. 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 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