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HomeMy WebLinkAbout85-517 BenningtonMs. Karen I. Bennington 329 East Market Street Mercer, PA 16137 Dear Ms. Bennington: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 February 28, 1985 ADVICE OF COUNSEL 85 -517 Re: Borough Tax Collector; Spouse Data Processing Manager; Conflict of Interest This responds to your letter of February 11, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether you may seek election to and serve in the office of borough tax collector when your spouse is employed in a county position. Facts: You have indicated that you are intending to seek election to the office of borough tax collector, Mercer Borough. You currently hold no public office. Your husband is currently employed as a data processing manager for Mercer County. This is a governmental position on the county level. The Data Processing Departmerrc is responsible for printing tax duplicates or statements for all the tax collectors in Mercer County that require this service. The borough must pay for the printing of forms and related expenses incurred in utilizing this service. These fees are paid to the county. The decision to utilize this service will generally rest with the tax collector. According to the information provided, the Data Processing Department makes no changes or alterations regarding the tax data received. This office merely transmits already compiled information into a computer system and obtains a print out therefrom. All changes or adjustments of the tax information occurs in the county tax office after receiving such information from the local tax collectors. The office of borough tax collector generally has no direct dealings with the Data Processing Department other than to arrange for this service. Mercer Borough does not currently utilize this service. Discussion: Initially it should be noted that the jurisdiction of the Ethics Commission is limited to rulings and determinations regarding an individual's duty under the Ethics Act. 65 P.S. §401 et seq. As such, the Commission may ' not provide a response under any other code, statute or regulation. Ms. Karen I. Bennington February 28, 1985 Page 2 Turning now to the Ethics Act, it is clear, that as a borough tax collector you would be a public official within the purview of the Ethics Act. 65 P.S. §402. As such, should you succeed in your efforts to obtain that office, your conduct must conform to the requirements of the Act. We will assume for the purpose of this advice that your husband, as a manager of the county Department of Data Processing, is also a public employee. Generally, the State Ethics Act contains no provisions and the Ethics Commission has made no rulings indicating that the situation involved herein would present any inherent incompatibility. The Act does provide that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). In this respect you may not, if you are elected borough tax collector, engage in any activity that would be in violation of this Section. That is, you may not use your official position or any confidential information acquired therein to obtain any financial gain either for yourself or for your husband in his current position. A review of the facts that you have presented to the Commission indicate that neither you nor your husband are in a position to personally benefit, influence or affect each other. It appears as though there are limited dealings between the office of borough tax collector and the county Data Processing Department. As such, there appears to be no prohibition placed upon you or your spouse under §403(a) of the Act at this time. You are advised, however, that should any situation develop in the future that alters the current nature of this inter - governmental relationship, additional advice of the Commission should be obtained. The State Ethics Commission is also empowered to address other areas of possible conflict as they arise. 65 P.S. §403(d). In this respect, as a public official, you must, if elected avoid a conflict of interest as well as the appearance of such a conflict. 65 P.S. §401, see; Opinion 83 -012 O'Reilly. As such, you should abstain from participation in any action that may be of interest to your spouse. Similarly, as a public employee, your husbsand should not participate in any action that would be beneficial to you as borough tax collector. Thus, for example when the Mercer borough tax information is submitted to the Data Processing Department, your husband should not participate in the processing thereof. In this way even the appearance of a conflict is negated. See opinion 80 -012, Cohen. Ms. Karen I. Bennington February 28, 1985 Page 3 Finally, you are reminded that as a candidate for public office you must comply with the financial interest statement filing requirements as well as the other requirements of the Ethics Act governing candidate. 65 P.S. §403(b); §404(b). Conclusion: The Ethics Act places no per se prohibition on the activity proposed. You must, however, comply with the provisions of the Ethics Act as outlined above. Pursuant to Section 7(9)(ii), 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfd This letter is a public record and will be made available as such. Since John ontino General Counsel