HomeMy WebLinkAbout16-508 Adamitis
ADVICE OF COUNSEL
February 18, 2016
Georgia Adamitis
906 Scott Road
Dickson City, PA 18519
16-508
Dear Ms. Adamitis:
This responds to your letter dated December 11, 2015 (postmarked December 15,
2015, and received December 18, 2015), by which you requested an advisory from the
Pennsylvania State Ethics Commission (“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 an individual
serving as an unpaid deputy tax collector for a borough with regard to simultaneously
serving as a member of council for the borough.
Facts:
You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
Your husband is the Tax Collector for Dickson City Borough (“Borough”). You are
the Borough Deputy Tax Collector, and you generally help out at the tax office during busy
times by opening mail, pulling bills, and balancing the monthly bank statements. You state
that you receive no compensation for serving as the Borough Deputy Tax Collector.
On November 3, 2015, you were elected as a Member of Borough Council.
You seek guidance as to whether the Ethics Act would impose any prohibitions or
restrictions upon you with regard to simultaneously serving as the Borough Deputy Tax
Collector and a Member of Borough Council.
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.
Adamitis, 16-508
February 18, 2016
Page 2
As the Borough Deputy Tax Collector, you are a public official subject to the
provisions of the Ethics Act. Upon taking office as a Member of Borough Council, you
would in that capacity also be a public official subject to the provisions of the Ethics Act.
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 pertaining 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.
Adamitis, 16-508
February 18, 2016
Page 3
"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.
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 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.
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.
It is administratively noted that the Borough Code provides, in pertinent part, as
follows:
§ 1104. Appointments and incompatible offices.
(a) General rule. --
Unless there is incompatibility in fact, an 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 under the statute.
(b)Prohibition.
(1)
Except as set forth in paragraph (2), no
elected borough official of a borough with a
population of 3,000 or more may serve as an
employee of that borough.
(2)
Paragraph (1) shall not apply to a
borough official serving as an employee of that
borough prior to the certification of the 2010
official census or a subsequent latest official
census which indicates an increase in the
population of that borough to 3,000 or more.
(c) Multiple offices. --
Adamitis, 16-508
February 18, 2016
Page 4
If 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, secretary
or treasurer.
….
(h) Construction. --
Nothing contained in this section shall be construed to
affect the eligibility of a borough official to hold any other
public office or receive compensation.
8 Pa.C.S. § 1104.
You are advised that there does not appear to be any statutorily-declared
incompatibility that would preclude you from simultaneously serving as an unpaid Borough
Deputy Tax Collector and a Member of Borough Council.
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.
Absent a statutorily-declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
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.
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude simultaneous service as an unpaid Borough
Deputy Tax Collector and a Member of Borough Council. Consequently, such
simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j) of the Ethics Act.
You are advised that you generally would have a conflict of interest in matters
before Borough Council that would financially impact the office of Borough Tax Collector,
including but not limited to the fixing of compensation for your husband as the Borough
Tax Collector and any review/oversight as to taxes collected by the Borough Tax Collector
and/or you as the Borough Deputy Tax Collector. In each instance of a conflict of interest,
you 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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
Based upon the submitted facts that: (1) your husband is the Tax
Collector for Dickson City Borough (“Borough”); (2) you are the Borough Deputy Tax
Adamitis, 16-508
February 18, 2016
Page 5
Collector, and you generally help out at the tax office during busy times by opening mail,
pulling bills, and balancing the monthly bank statements; (3) you receive no compensation
for serving as the Borough Deputy Tax Collector; and (4) on November 3, 2015, you were
elected as a Member of Borough Council, you are advised as follows.
As the Borough Deputy 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. Upon taking office as a Member of Borough Council, you would in that capacity
also be a public official subject to the provisions of the Ethics Act. Subject to the
restrictions, conditions and qualifications set forth above, you may, consistent with Section
1103(a) of the Ethics Act, simultaneously serve as an unpaid Borough Deputy Tax
Collector and a Member of Borough Council. You generally would have a conflict of
interest in matters before Borough Council that would financially impact the office of
Borough Tax Collector, including but not limited to the fixing of compensation for your
husband as the Borough Tax Collector and any review/oversight as to taxes collected by
the Borough Tax Collector and/or you as the Borough Deputy Tax Collector. In each
instance of a conflict of interest, you 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. 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, this 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