HomeMy WebLinkAbout85-550 WagnerJohn F. Wagner, Jr. Esquire
Wagner & Macko
Memorial Boulevard & Highland Avenue
Connellsville, PA 15425
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 29, 1985
ADVICE OF COUNSEL
85 -550
Re: Simultaneous Service, School Director, Clerk Office of Earned Income Tax
Collector
Dear Mr. Wagner:
This responds to your letter of March 25, 1985, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether an elected school director may also be employed as a clerk in
the office of the Earned Income Tax Colletor.
Facts: You represent a member of the Connellsville area School Board. On
behalf of this school director, you have inquired as to whether there would be
any prohibition upon this person serving both as a school director and as a
clerk in the office of the Earned Income Tax Collector. This office was
created pursuant to the provisions of the Local Tax Enabling Act. 53 P.S.
§6901 et. seq.
This law, in part, provides that whenever a school district, (of a
specified class) imposes, pursuant to the law, a tax on the earned income of
individuals, such school district may select one person or agency to collect
said tax. This tax collector is responsible for the collection of the earned
income tax due to the various political subdivisions levying such a tax within
the geographical limits of the school district.
The selection of this tax collector, when more than one such subdivision
is involved shall be shared based upon agreement or upon the proportion that
the population of such, bears to the entire population, of the combined
collection district. 53 P.S. §6910.
The tax collector has broad authority in relation to the collection of
taxes and is accountable to the appointing authority. 53 P.S. §6913 (v).
John F. Wagner, Jr.
May 29, 1985
Page 2
The auditing of the accounts of such tax collector is to be performed by
an independent accountant as appointed by the governing authority. 53 P.S.
§6911.
The tax to be imposed is generally established by ordinance but it may
not exceed one (1) percent of a persons earned income. 53 P.S. §6908.
As a clerk for this tax collector you indicate that the individual would
be generally responsible for sorting mail, crediting payment to taxpayers
accounts, and handling inquiries from taxpayers.
Discussion: At the outset, it must be noted that the Ethics Commission may
only address the question presented herein within the purview of the State
Ethics Act. The Commission may not, therefore, review this issue under any
other statute or code of conduct. The Commission will not for example address
this issue under the Public School Code. 24 P.S §3 -322; §3 -324.
As an elected school director this individual is a public official as
that term is defined in the State Ethics Act. 65 P.S. §402. Krier, 84 -002.
As such, the conduct of this person must conform to the requirements of the
Act.
Generally, the Ethics Act provides 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).
Within the provision, a public official may not use such public position
in order to appoint oneself..to another position or award oneself additional
compensation. As such, this school director may not participate in any matter
relating to the position held in the office of the Earned Income Tax
Collector. Additionally, this individual may not use any confidential
information obtained as a school director for his /her own benefit or the
office of the Earned Income Tax Collector in general.
In addition to the foregoing', the State Ethics Commission may also
address other areas of possible conflict. 65 P.S. §403(d).
John F. Wagner, Jr.
May 29, 1985
Page 3
Generally, a conflict of interest exists when a public official serves or
attempts to serve interests that are adverse. Alfano, 80 -007. Such a
conflict also arises when the financial interest of a public official is
adverse to or appears to be adverse to the public trust. 65 P.S. ■401. In
such situations a public official must avoid participation in any action that
would occasion such a conflict or appearance.
Thus, as a school director, this person must abstain form participation
in any matter that relates to the office of the Earned Income Tax Collector.
This includes the apointment of that person, the compensation to be paid, the
audit of that office and the approval of such audit. See Pasquarelli, 84 -519;
Loeper, NO. 96. Additionally, this person should, in order to avoid an
appearance of a conflict abstain from participating, as a clerk, in any action
regarding the earned income tax of the other members of the school board(s)
that appoints the collector.
Finally, we note that Section 3(b) of the Act provides that:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
We make reference to_this section of the law not to imply that there has or
will be any violation thereof but merely to provide a complete response to
your question.
Conclusion: The Ethics Act provides no per se prohibition upon the activity
proposed. As a public official, the conduct of this school director must
conform to the requirements of the Act as set forth 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.
John F. Wagner, Jr.
May 29, 1985
Page 4
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 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 /sfb
Si ncerely,
. Contino
eral Counsel