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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