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HomeMy WebLinkAbout82-522 SmithLinda A. Smith Area Executive Dauphin Area Department of Public Welfare c/o James L. Hoover 300 N. Second Street Harrisburg, PA 17101 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 24, 1982 ADVICE OF COUNSEL RE: Child Support Program, Income Tax Preparation Dear Ms. Smith: 82 -522 This responds to your communication of February 17, 1982 in which you as Area Executive of the Dauphin Area, Department of Public Welfare requested advice from the State Ethics Commission. Issue: You ask for advice as to the appropriateness of a field agent maintaining an income tax preparation service. Facts: Field Agent Harry G. Nemec operates an income tax preparation service. You indicate that he may in some instances prepare income tax returns for persons who have been defendants in child support cases and who might be delinquent in a court - ordered child support payment. At present, the Department of Public Welfare, the Pennsylvania Child Support Program is participating in a federal program that will intercept federal tax refund checks which might be due to the parents who are delinquent in court - ordered child support payments. The refunds will be used to offset welfare cash payments made to the families of such persons. Typically, the refunds would be intercepted and sent to the various domestic relations divisions of the courts for processing. The checks would then be recorded and in some instances credited to the Department of Public Welfare to offset cash welfare payments made to the families of the persons subject to the court - ordered support. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Linda A. Smith February 24, 19C2 Page 2 While yell indicate t -lat Field Agents auc'' ES Mr. Nemec have access to the records o ':'a individuals who might be subject to such chec°:T interception processes, you indicate that the Agent does not have any role in preparing the list of persons whose checks will be intercepted. The list of persons •Bose checks might be intercepted (essentially, those persons who are delinquent in court- ordered child support payments) would come directly from ':he Internal Revenue Service to the courts (Domestic Relations Divisions). The Agent's normal role in this system has noL been clearly identified by the Department as yet. You envision the possibility that the system might be developed where by the refund checks would be sent directly to the recipient of the welfare cash payments. In such a system the Agent may play a role in identifying the proper benefactors of the Internal Revenue Service refund checks. However, at the present time an agents typical work includes the reimbursement and restitution process within the Department of Public Welfare whi-.:h is concerned with over-payment and fraud cases being developed by the Department. Discussion: Initially, we note that the jurisdiction of the Ethics Act extends to the conduct of "public employees." See 65 P.S. 401 et seq. For the purposes of this discussion we will assume that Field Agents are considered "public employees" within the scope of the ';thics Act. The Ethics Act does place some restrictions on the conduct of "public employees." For example, the Ethics Act prohibits "public employees" from using their public employ- ment to obtain personal financial gain. See 65 P.S. 403(a). This same section prohibits a public employee from using confidential information received through his public office to obtain financial gain for himself. In addition, Section 3(b) of the Ethics Act indicates that no public employee shall accept any thing of value, including the promise of future employment, based on the understanding that his official action would be influenced thereby. See 65 P.S. 403(b). However, the Ethics Act does not p ohibit a public employee, per se, from engaging in outside eLcnloyment such as that involved in income tax preparation. Such employment would be barred by the Ethics Act only if there was a conflict of interest between the person's public Employment and the interests of the persons he would serve in th preparation of the tax returns. If the interests of these Linda A, Smith February 24, 1982 Page 3 persons are adverse to each other, then that activity would be barred by the Ethics Act. See Alfano, 80 -007. In the circumstances you present, given the fact that the Agents involved have no role in the preparation of list, does not appear to be using confidential information obtained from this list to secure income tax preparation clients, and do not at least at this poin': in time have any ability to benefit personally from the preparation of tax returns or the receipt of the ref't.id check there is no per se prohibition to the continuation of this dual employment. Of course, any public employee should be cautioned t:o observe the prohibitions of Sections 3(a) and (b) ac' ennunciated above. In addition, should the role of the Agent change from that outlined herein you or the Agent might wish to re- submit another request for information. Essentially, the advice °-endered here only pertains to the factual situation as outlined in this advice. If those facts do change a different ruling may result. Conclusion: At the present time and under the circumstances outlined above there is no per se prohibition under the Ethics Act for a Field Agent to engage in offering services as an income tax preparer merely because the Department of Public Welfare, Pennsylvania Child Support Program is currently participating in a Federal Income Tax refund intercept program. 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp cc: Harry G. Nemec, Field Agent Sincerely, S n dra S. Christianson General Counsel