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Home My WebLink About17-536 RepakSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO, BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL June 13, 2017 To the Requester: Mr. Ronald N. Repak, Esquire Beard Legal Group Dear Mr. Repak: 17 -536 This responds to your letter dated April 18, 2017, 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 F —a.C-S. § 1101 et seq., would impose prohibitions or restrictions upon an individual who is currently employed in the Payroll /Benefits Specialist Department of the Penn Cambria School District ( School District ") with regard to simultaneously serving as the tax collector who would collect School District taxes. Facts: As Solicitor for the School District, you have been authorized to request an a visory from the Commission on behalf of the School District. You have submitted facts that may be fairly summarized as follows. An individual ( "the Individual ") who is employed in the Payroll /Benefits Specialist Department of the School District was appointed by Loretto Borough (the "Borough ") to serve as the Borough Tax Collector for 2017. The Cambria County Assessment Office has asked the School District to approve the Individual to collect School District taxes as the Borough Tax Collector. The Individual, in her role with the School District, is not responsible for tax demographic data and does not have control over the taxes themselves. You state that as with all tax collectors, the School District relies on the Individual to provide information to update the School District per capita database. You further state that another School District employee actually maintains the aforesaid database, which is separate from the County - maintained data. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon the Individual with regard to simultaneously serving in her position with the School District and as the tax collector who would collect School District taxes. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of to Ethics t, 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 FAX: (717) 787 -0806 6 Web Site: www.ethics.state..pa.us 0 e -mail: ethicsCa?state.pa.us R_e.pak, 17 -536 June 13, 2017 Page 2 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. Given that the submitted facts do not identify the Individual's position with the School District, this Advice assumes, without deciding, that in her position in the Payroll /Benefits Specialist Department of the School District, the Individual would be considered a public employee subject to the provisions of the Ethics Act. As the Borough Tax Collector, the Individual would be considered 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. .5 1 102, 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 ecuniary benefit of the public officiallpublic employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public officiallpublic employee would be required to abstain from participation. The abstention requirement would extend 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. Re ak, 17 -536 une 13, 2017 Page 3 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. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Where simultaneous service in particular positions would place a public official /public employee in a continual state of conflict, such as where in one position she would be accounting to herself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to Ge 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. In McCain, supra, the Commission determined that a school district secretary who was responsible for receiving and auditing the township's tax collector's reports would have an inherent conflict if she would also become the township tax collector: Despite your contention that there is no place in the process for misconduct, given the oversight of the Business Manager and the County, as well as the performance of certain audits, the functions which you currently perform for the School District are an im ortant and practical component of a check- and - balance system designed Fo ensure the propriety of the tax collection process. Permitting an individual performing such a role to audit her own Tax Collector reports would undermine the check- and - balance system. McCain, at 7. However, the Commission noted, as possible solutions to Ms. McCain's iTel mma, that she could hold a different secretarial position with her school district that would not involve her work as a tax collector, or that her school district position could be redefined so that someone else at her school district --independent of Ms. McCain- -would audit Ms. McCain's tax collector reports. Id. at 8. Having established the above general principles, you are advised as follows. Based upon the submitted facts, there would be an inherent conflict that would preclude the Individual's simultaneous service as an employee in the Payroll /Benefits Specialist Department of the School District and as the Tax Collector who collects taxes for the School District unless the Individual in her em to ment position with the School District, would not perform anv roe as tot the review or reconciliation of taxes collected or District taxes as the Borough Tax Collector, the Individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in performing any duty(ies) of her position in the Payroll/Benefits Specialist Department of the School District that would pertain to the review or reconciliation of taxes collected for the School District. Cf., McCain, s, upra; Kiernan, Advice 12 -511. The Individual would be required to abstain fullyfrom participation in each instance of a conflict of interest. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. The applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act, Conclusion: Based upon the submitted facts that: (1) an individual ( "the Individual ") who is employed in the Payroll /Benefits Specialist Department of the Penn Cambria School District ( "School District ") was appointed by Loretto Borough (the "Borough ") to serve as the Borough Tax Collector for 2017; (2) the Cambria County Assessment Office has asked the School District to approve the Individual.to collect School District taxes as the Borough Repak, 17 -536 June 13, 2017 Page 4 Tax Collector; (3) the Individual, in her role with the School District, is not responsible for tax demographic data and does not have control over the taxes themselves; (4) as with all tax collectors, the School District relies on the Individual to provide information to update the School District per capita database; and (5) another School District employee actually maintains the aforesaid database, which is separate from the County - maintained data, you are advised as follows. This Advice assumes, without deciding, that in her position in the Payroll /Benefits Specialist Department of the School District, the Individual would be considered a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seg. As the Borough Tax Collector, the Individual would be considered a public officiaf subject to the provisions of the Ethics Act. There would be an inherent conflict that would preclude the Individual's simultaneous service as an employee in the Payroll/Benefits Specialist Department of the School District and as the Tax Collector who collects taxes for the School District unless School istrict would approve the Individual to co lect Schoo District taxes as t he Borough Tax Collector, the Individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in performing any duty(ies) of her position in the Payroll/Benefits Specialist Department of the School District that would pertain to the review or reconciliation of taxes collected for the School District. The Individual would be required to abstain fully from participation in each instance of a conflict of interest. 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 orif you have anyreason 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 actuaft 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, 4 obin M. Hittie Chief Counsel