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Home My WebLink About14-565 Harry ADVICE OF COUNSEL December 18, 2014 Bernie Harry Hermitage Treasurer/Tax Collector 800 North Hermitage Road Hermitage, PA 16148 14-565 Dear Ms. Harry: This responds to your two letters dated November 20, 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 city treasurer/tax collector with regard to appointing her husband to the position of deputy tax collector, where factually, whoever would be appointed as the deputy tax collector would receive no compensation and would only collect and settle taxes during any incapacitation of the tax collector. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. You are the Treasurer and Tax Collector for the City of Hermitage (“City”). You state that with the passage of House Bill 1590, it is now necessary for you to appoint a Deputy Tax Collector pursuant to the Local Tax Collection Law, 72 P.S. § 5511.1 et seq. You further state that whoever would be appointed as the Deputy Tax Collector would receive no compensation and would only act during your temporary incapacitation. Your bond would cover the Deputy Tax Collector, and you would be responsible for the Deputy Tax Collector’s work. Your husband is a retired banker with a degree in finance. Based upon the above submitted facts, you ask whether you would be permitted to appoint your husband to the position of Deputy Tax Collector. It is administratively noted that upon the signing into law of House Bill 1590 on October 22, 2014, the Local Tax Collection Law was amended effective immediately to provide, in pertinent part, as follows: § 5511.22. Deputy tax collectors.-- …. Harry, 14-565 December 18, 2014 Page 2 (b) At a minimum, a tax collector shall, with the approval of a taxing district and the tax collector’s surety, appoint a deputy tax collector who shall collect and settle taxes during any incapacitation of the tax collector…. 72 P.S. § 5511.22(b). 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 City Treasurer/City Tax Collector, you are 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 related to Section 1103(a) 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. "Immediate family." A parent, spouse, child, brother or sister. Harry, 14-565 December 18, 2014 Page 3 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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 applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. Based upon the submitted facts—and in particular, the submitted fact that regardless of who would be appointed as the Deputy Tax Collector, the Deputy Tax Collector would receive no compensation—you are advised that Section 1103(a) of the Ethics Act would not prohibit you from appointing your husband as the unpaid Deputy Tax Collector. This is because the requisite element of a private pecuniary benefit would be lacking. Cf., Hrivnak, Advice 94-644; Caltagirone, Advice 90-553. The aforesaid submitted fact distinguishes your advisory request from the request that was addressed in Caverly, Advice 02-562. 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. Specifically not addressed herein is the applicability of the City of Hermitage Home Rule Charter. Conclusion: Based upon the submitted facts that: (1) you are the Treasurer/Tax Collector for the City of Hermitage (“City”); (2) with the passage of House Bill 1590, it is now necessary for you to appoint a Deputy Tax Collector pursuant to the Local Tax Collection Law, 72 P.S. § 5511.1 et seq.; (3) whoever would be appointed as the Deputy Tax Collector would receive no compensation and would only act during your temporary incapacitation; (4) your bond would cover the Deputy Tax Collector, and you would be responsible for the Deputy Tax Collector’s work; and (5) your husband is a retired banker with a degree in finance, you are advised as follows. As the City Treasurer/City Tax Collector, 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. Based upon the submitted facts—and in particular, the submitted fact that regardless of who would be appointed as the Deputy Tax Collector, the Deputy Tax Collector would receive no compensation—Section 1103(a) of the Ethics Act would not prohibit you from appointing your husband as the unpaid Deputy Tax Collector. 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 Harry, 14-565 December 18, 2014 Page 4 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