Loading...
HomeMy WebLinkAbout84-519 PasquarelliMr. Samuel J. Pasquarelli, Esquire Jubelirer, Pass & Intrieri, P.C. 219 Fort Pitt Boulevard Pittsburgh, PA 15222 Madmg Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 2, 1984 ADVICE OF COUNSEL 84 -519 RE: Borough Councilman Serving as Clerk in Borough Tax Office Dear Mr. Pasquarelli: This responds to your letter of November 15, 1983, in which you, as Solicitor for McKees Rocks Borough, requested advice from the State Ethics Commission. Issue: You ask whether the McKees Rocks Borough Tax Collector may appoint as a clerk in the Tax Office a McKees Rocks Borough Councilman. Facts: You are Solicitor for McKees Rocks Borough in Allegheny County, and you are writing on behalf of McKees Rocks Borough Tax Collector, Mr. Robert F. Brownley and a McKees Rocks Borough Councilman, Mr. Nicholas Kotik. You state that Mr. Brownley wishes to employ Mr. Kotik as a clerk in the McKees Rocks Borough Tax Office for the purposes of receiving and receipting for taxes paid at the office by property owners within the Borough. The position would be salaried and you indicate that you do not believe any conflict of interest exists. You have advised Mr. Kotik that as Borough Councilman, he should abstain from voting on any matters before the Council that deal with the Tax Collector, his office, or tax collections in general, insofar as they may effect the compensation of the Tax Collector. You have also advised Mr. Kotik that his appointment as clerk by the Tax Collector rather than by the Borough Council does not constitute any conflict with Section 1104 of the Borough Code, 53 P.S. 46104, and that he may accept both the appointment by Mr. Brownley and the salary as clerk. You have, however, advised Mr. Brownley and Mr. Kotik that they ought to request advice from the State Ethics Commission, and you have, therefore, written to us on their behalf. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Samuel J. Pasquarelli, Esquire February 2, 1984 Page 2 Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power are strictly limited to the authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Borough Code or the local tax collection law, and this Advice should not be construed as clearance to act under any Commonwealth laws, codes, or regulations other than the Ethics Act. As holders of elective office, both Mr. Brownley and Mr. - Kotik are "public officials" with the meaning of the Ethics Act, 65 P.S. 401 et seq. Accordingly, their conduct is regulated by the Ethics Act, which states in Section 1, that "the people have a right to be assured that the financial interests of holders or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. The Ethics Commission has defined "conflict of interest" as existing where an individual represents two or more persons whose interests are adverse to each other. See Alfano, 80-007. We do not believe that the situation you present constitutes a per se conflict of interest under the Ethics Act. However, Mr. Brownley and Mr. Kotik should be aware of some of the restrictions that apply to them under the Ethics Act. Section 3(a) of the Ethics Act provides that no public official may use his public office or any confidential information obtained through his holding public office to acquire financial gain for himself, a member of his family, or a business with which he is associated. See Section 3(a) of the Ethics Act, 65 P.S. 403(a). In this case, it does not appear that Mr. Kotik would be using his public office in order to secure financial gain, that is employment as clerk, for himself. However, under Section 3(a), Mr. Kotik must, as you recognized, abstain from participation as a Borough Councilman, in all matters pertaining to the Tax Collector, the Tax Collector's Office or its budget, or tax colletions in general, insofar as they may relate to compensation of the Tax Collector and employees in the Tax Office or funds available for same. By his abstention, Mr. Kotik will avoid even the appearance of a conflict with the public trust, in accordance with both Section 1 and Section 3(a) of the Ethics Act. Section 3(b) of the Ethics Act states: (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). Mr. Samuel J. Pa squa rel l i , Esquire February 2, 1984 Page 3 In this regard, Mr. Brownley would be precluded from appointing Mr. Kotik to the clerk position if that appointment was based on the understanding that any of Mr. Kotik's actions as Councilman would be influenced. Likewise, Mr. Kotik could not accept such employment if he was aware that he was expected to engage in official actions favorable to the Tax Collector's Office. We mention these provisions not to imply such circumstances exist, but to provide a thorough review of the Ethics Act with respect to your question. Conclusion: So long as Mr. Brownley and Mr. Kotik conform their conduct to the guidelines discussed above, no conflict or appearance of a conflict with the public interest should arise. Under the Ethics Act, Mr. Kotik would not be precluded from serving as clerk in the Tax Collector's Office, but the standard of conduct required by the Ethics Act to abstention and otherwise, as described above, must be met. 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. 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. CW /rdp Sincerely, udy Sandra S. Chr1stianson General Counsel