HomeMy WebLinkAbout82-571 NicholsonE. E. Nicholson, President
Pennsylvania Municipal Service Co.
336 Delaware Avenue
Oakmont, PA 15139
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717► 783 -1610
September 8, 1982
ADVICE OF COUNSEL
RE: Tax Collection Service, Financial Interest Statement
Dear Mr. Nicholson:
82 -571
This responds to your letter of July 2, 1982 in which you requested
advice from the State Ethics Commission.
Issue: You seek our opinion as to whether it is necessary for your company or
persons within your company to complete the Financial Interest Statement
required by the State Ethics Act.
Facts: The Pennsylvania Municipal Service Company hereinafter, "the Company ",
is a private corporation appointed by several school districts and
municipalities in the capacity of tax collector for taxes under Act 511 of the
Commonwealth of Pennsylvania. The arrangement between the Company and these
municipalities is basically a contractual one and is renewed on an annual
basis. The Company is not elected nor does it assume any position or office
within these municipalities.
The Company does not make rules or regulations and is not established or
organized pursuant to 53 P.S. 6910 of the General Municipal Law. As such, the
Company is not empowered to or delegated to exercise any power of assessment
or collection of taxes or compromise of claims other than as a private
collection agency. Finally, the Company is not composed of representatives
from the taxing bodies nor do any public officials from the municipalities
with whom the Company might contract regulate, operate, or direct the
activities of the Company.
Discussion: The Ethics Act imposes certain requirements on "public employees"
and "public officials." These terms are defined in the context of the Ethics
Act. See 65 P.S. 402. The status of the Company must be reviewed within the
context of these definitions in order to determine whether there is any
requirement that the Company or members of the Company file Financial Interest
Statements.
State Ethics Commission "+ 308 Finance Building • Harrisburg, Pennsylvania
E. E. Nicholson, President
September 8, 1982
Page 2
The Commission has previously reviewed two similar cases relating to the
status of tax collection companies or tax bureaus. See Fraas, 82 -016 and
Flower, 80 -033. In Fraas, the Commission determined that a company that
served merely as a tax collection company with no discretionary authority
which performed purely ministerial actions could not be said to be a "public
employee" or a "public official" as that term is defined in the Ethics Act.
In this Opinion the Commission concluded that such collection companies are
not subject to the requirement that Financial Interest Statements be filed.
The Commission, however, did note that such companies would be subject to
provisions of Section 3(b) of the Ethics Act which provides that:
(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).
In comparison, in the Flower decision the Commission concluded that the
Carlisle Earned Income Tax Bureau was not simply a collection agency as set
forth in the Fraas, but was organized by certain townships, boroughs, and
school districts in order to make rules, regulations, and see that local
earned income taxes were collected and properly distributed. In Flower, the
Bureau was organized pursuant to 53 P.S. 6901 of the General Municipal Law and
was delegated with important non - discretionary responsibilities. As such, the
Bureau i!1 Flower was found to be a "public employee" within the purview of the
Ethics Act and subject to the requirement that Financial Interest Statements
be filed.
In the case at hand, given the facts as presented, the Company in
question here is more similar to the situation dealt with by the Commission in
Fraas than the situation presented in Flower. Consequently, the same results
should apply here where the Company involved is merely a tax collection
agency.
Conclusion: The Pennsylvania Municipal Service Company is not considered a
"public employee" or "public official" subject to the financial reporting and
disclosure provisions of the Ethics Act. We do note that the Company remains
subject to those provisions of the Ethics Act such as Section 3(b), 65 P.S.
403(b) which are generally applicable to "persons."
E. E. Nicholson, President
September 8, 1982
Page 3
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.
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