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Home My WebLink About14-523 Anewalt ADVICE OF COUNSEL June 13, 2014 Erin Laub Anewalt Lewistown Borough Tax Collector Lewistown Borough Municipal Building 2 East Third Street Lewistown, PA 17044 14-523 Dear Ms. Anewalt: This responds to your letter dated April 11, 2014, 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 prohibitions or restrictions upon a borough tax collector with regard to collecting a ten dollar fee for tax certifications and tax duplicates and fees for checks returned for insufficient funds where the borough would enact an ordinance authorizing such fees. Facts: You are the elected Tax Collector for the Borough of Lewistown (“Borough”), located in Mifflin County, Pennsylvania. Your current term of office began in January 2014. You ask whether the Ethics Act would permit you to collect a ten dollar fee for tax certifications and tax duplicates and fees for checks returned for insufficient funds if the Borough would enact an ordinance authorizing such fees, and if so, whether you would be permitted to collect such fees during your current term of office if the Borough ordinance authorizing them would be enacted during your current term of office. 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 Borough Tax Collector, you are a public official subject to the provisions of the Ethics Act. Anewalt, 14-523 June 13, 2014 Page 2 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). The following terms are 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. "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. Anewalt, 14-523 June 13, 2014 Page 3 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. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. You are advised that pursuant to Section 1103(a) of the Ethics Act, the propriety of collecting the proposed fees would hinge upon whether such fees would be authorized in law and therefore would not constitute a private pecuniary benefit. The Pennsylvania State Ethics Commission has held that it is a violation of Section 1103(a) of the Ethics Act for a tax collector to collect tax certification fees or other fees unless there is specific legal authorization to do so. See, Allen, Order 612-R; Walter, Order 1429; Trexler, Order 1353; Ahner, Order 1564. The Borough Code empowers a borough council to prescribe reasonable fees for the services of the borough’s officers. (See, 53 P.S. § 46202 (currently in effect) and 8 Pa.C.S. § 1202 (effective June 17, 2014)). You are advised that generally, Section 1103(a) of the Ethics Act would permit you to collect a ten dollar fee for tax certifications and tax duplicates and fees for checks returned for insufficient funds if a Borough ordinance would authorize your collection of such fees. Cf., Roberts, Advice 04-509. However, the answer to the question of whether you would be permitted to collect such fees during your current term of office would hinge upon an interpretation of the ordinance itself and the Local Tax Collection Law. Since the Pennsylvania State Ethics Commission does not have the statutory jurisdiction to interpret same, it is recommended that you obtain legal advice in that regard. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As the Tax Collector for Lewistown Borough (“Borough”), located in Mifflin County, Pennsylvania, you are a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Generally, Section 1103(a) of the Ethics Act would permit you to collect a ten dollar fee for tax certifications and tax duplicates and fees for checks returned for insufficient funds if a Borough ordinance would authorize your collection of such fees. However, the answer to the question of whether you would be permitted to collect such fees during your current term of office would hinge upon an interpretation of the ordinance itself and the Local Tax Collection Law. Since the Pennsylvania State Ethics Commission does not have the statutory jurisdiction to interpret same, it is recommended that you obtain legal advice in that regard. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Anewalt, 14-523 June 13, 2014 Page 4 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