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Home My WebLink About16-533 Bolla ADVICE OF COUNSEL May 10, 2016 William J. Bolla, Esquire High Swartz LLP 116 East Court Street Doylestown, PA 18901 16-533 Dear Mr. Bolla: This responds to your letter dated April 12, 2016, 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 a borough tax collector with regard to simultaneously serving as the borough secretary. Facts: You have been authorized by Judy Musto (“Ms. Musto”) to request an advisory from the Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Ms. Musto is the elected Tax Collector for Newtown Borough (“Borough”), located in Bucks County, Pennsylvania. The Borough has a population of approximately 2,400. The individual who serves as the Borough Secretary is retiring, and Ms. Musto is one of the candidates for the position of Borough Secretary. You state that the position of Borough Secretary is separate from the position of Borough Treasurer. You further state that the Borough Tax Collector deals with the Borough Treasurer and not the Borough Secretary on tax or revenue issues. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Ms. Musto with regard to simultaneously serving as the Borough Tax Collector and the Borough Secretary. 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. Bolla, 16-533 May 10, 2016 Page 2 As the Borough Tax Collector, Ms. Musto is 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 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. "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. 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 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. Bolla, 16-533 May 10, 2016 Page 3 (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. -- 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 Ms. Musto from simultaneously serving as the Borough Tax Collector and the Borough Secretary. 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) (holding, inter alia, that an individual could not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a township tax collector and as the secretary at a school district responsible for auditing her own tax collector reports). 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 Bolla, 16-533 May 10, 2016 Page 4 would be required to abstain from participation. 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 the Borough Tax Collector and the Borough Secretary. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) Judy Musto is the elected Tax Collector for Newtown Borough (“Borough”), located in Bucks County, Pennsylvania; (2) the Borough has a population of approximately 2,400; (3) the individual who serves as the Borough Secretary is retiring, and Ms. Musto is one of the candidates for the position of Borough Secretary; (4) the position of Borough Secretary is separate from the position of Borough Treasurer; and (5) the Borough Tax Collector deals with the Borough Treasurer and not the Borough Secretary on tax or revenue issues, you are advised as follows. As the Borough Tax Collector, Ms. Musto is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. Subject to the restrictions, conditions and qualifications set forth above, Ms. Musto may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Borough Tax Collector and the Borough Secretary. 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