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Home My WebLink About14-547 Leonard ADVICE OF COUNSEL October 10, 2014 William M. Leonard District Manager Berkheimer Tax Administrator th 3608 W. 26 Street Suite 202 Erie, PA 16506-2037 14-547 Dear Mr. Leonard: This responds to your letter dated August 18, 2014, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as the District Manager in northwestern Pennsylvania for Berkheimer Tax Administrator, which serves as the appointed tax officer for the Mercer County Tax Collection District, you would be required to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be summarized as follows. You are employed by Berkheimer Tax Administrator (“Berkheimer”) as the District Manager in northwestern Pennsylvania. You have submitted a copy of a job description for the position of District Manager with Berkheimer, which document is incorporated herein by reference. You received notification that as a Wage Tax Collector for South Pymatuning Township, you are required to file Statements of Financial Interests pursuant to the Ethics Act and have failed to do so for calendar years 2012 and 2013. You have submitted a copy of a letter dated August 12, 2014, from David R. Gordon, Esquire (“Mr. Gordon”), General Counsel for Berkheimer, indicating that since 2012, under the auspices of the Local Tax Enabling Act, 53 P.S. § 6924.101 et seq., Berkheimer has served as the appointed tax officer for the Mercer County Tax Collection District (“Tax Collection District”), which includes South Pymatuning Township. The letter further states that in your capacity as a District Manager for Berkheimer, you are not the tax officer, but rather, function as the “liaison” between Berkheimer and taxing bodies such as South Pymatuning Township. Leonard, 14-547 October 10, 2014 Page 2 Based upon the above submitted facts, you seek a determination as to whether, in your capacity as the District Manager in northwestern Pennsylvania for Berkheimer, you are required to file Statements of Financial Interests. It is administratively noted that the Local Tax Enabling Act establishes a tax collection district in each county, except for a county of the second class, for purposes of collecting income taxes. See, 53 P.S. § 6924.504. Each tax collection district is governed by a tax collection committee comprised of delegates appointed by the governing bodies of the political subdivisions within the tax collection district. See, 53 P.S. § 6924.505. The duties of a tax collection committee include appointing and overseeing a tax officer which shall collect, administer and enforce income taxes imposed in the tax collection district. See, 53 P.S. §§ 6924.505, 6924.506, 6924.507, 6924.509. 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. Section 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that the position is held and the year following termination of service in the position: § 1104. Statement of financial interests required to be filed (a) Public official or public employee.-- Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full-time or part-time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an Leonard, 14-547 October 10, 2014 Page 3 appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The terms “person,” “governmental body,” and “political subdivision,” which are contained within the above definition, are themselves specifically defined in the Ethics Act as follows: § 1102. Definitions “Person.” A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. In applying the Ethics Act’s definition of the term “public official,” the first portion of the definition provides that a public official is a “person” (defined to include a business, corporation or firm) which is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. In applying the above provisions of the Ethics Act to the submitted facts, you are advised that Berkheimer is a “person” as that term is defined by the Ethics Act. Additionally, the Tax Collection Committee is a “governmental body” as that term is defined by the Ethics Act. You are advised that someone would be required to file Statements of Financial Interests pursuant to the Ethics Act as a result of Berkheimer’s appointment to the aforesaid position of tax officer. However, in your capacity as Berkheimer’s District Manager in northwestern Pennsylvania, you would not be required to file Statements of Financial Interests pursuant to the Ethics Act if you are not one of the person(s) primarily responsible for performing tax officer duties, responsibilities, and/or services on behalf of Berkheimer. (Cf., 51 Pa. Code § 15.2(h), providing that when a law firm or engineering firm is designated by a governmental body as solicitor or engineer, the person(s) primarily responsible for providing the services in the firm are responsible for filing a Statement of Financial Interests.) Leonard, 14-547 October 10, 2014 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Under the submitted facts that: (1) you are employed by Berkheimer Tax Administrator (“Berkheimer”) as the District Manager in northwestern Pennsylvania; (2) since 2012, under the auspices of the Local Tax Enabling Act, 53 P.S. § 6924.101 et seq., Berkheimer has served as the appointed tax officer for the Mercer County Tax Collection District (“Tax Collection District”), which includes South Pymatuning Township; and (3) in your capacity as a District Manager for Berkheimer, you are not the tax officer, but rather, function as the “liaison” between Berkheimer and taxing bodies such as South Pymatuning Township, you are advised as follows. Someone would be required to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., as a result of Berkheimer’s appointment to the aforesaid position of tax officer. However, in your capacity as Berkheimer’s District Manager in northwestern Pennsylvania, you would not be required to file Statements of Financial Interests pursuant to the Ethics Act if you are not one of the person(s) primarily responsible for performing tax officer duties, responsibilities, and/or services on behalf of Berkheimer. Lastly, the propriety of the proposed 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