Loading...
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. SSC /rdp • Si cerely, dra General Cou tianson