HomeMy WebLinkAbout86-531 HessStephen D. Hess, Esquire
P.O. Rox 37
30 South Main Street
Hughesville, PA 17737
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE 1717) 783 -1610
April 3, 1986
ADVICE OF COUNSEL
86 -531
Re: Simultaneous Service, Township Tax Collector; Township Secretary
Treasurer
Dear Mr. Hess:
This responds to your letter of February 14, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether the township tax collector may simultaneously serve in the
office of secretary /treasurer in a township of the second class.
Facts: You advise that you serve as the solicitor for six second class
townships in upstate Pennsylvania. During the course of your service in this
position, the question has been asked as to whether the same individual may
simultaneously serve as the township tax collector and township
secretary /treasurer. You have requested the advice of the State Ethics
Commission in relation to this issue.
Discussion: Generally the State Ethics Act was promulgated in order to ensure
the public that the financial interests of their public officials and
employees do not conflict with the public trust. 65 P.S. 5401. As a result,
the Act provides as follows:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Stephen D. Hess, Esquire
April 3, 1986
Page 2
In addition to the foregoing, the Act provides that this Commission may
address other areas of possible conflict. 65 P.S. §403(d). Such a conflict
would arise if the public official or public employee attempted to serve
interests that are adverse. See Alfano, 80 -007; Fritzinger, 80 -008. Within
this provision of law, this Commission has on previous occasions determined
that individuals who serve in positions that are inherently incompatible would
be in violation of this provision of the State Ethics Act. See Nelson,
85 -008; Norris, 80 -053.
In the instant situation, it is clear that a township tax collector would
be a public official within the purview of the State Ethics Act. 65 P.S.
§402. As such, his conduct must conform to the requirements of the Act as set
forth above. Generally, in order to review the situation which you have
presented, we must consult the various statutory authority indicating the
functions and duties performed in the positions which the individual in
question will attempt to serve. Initially we note that our advice herein does
not address the situation where this individual also serves as a township
supervisor. That specific situation is clearly addressed by the Second Class
Township Code which provides that a township supervisor may not serve in any
other position except for roadmaster, laborer, or secretary /treasurer. See 53
P.S. §65410(b).
A township tax collector is to be elected by the electors of the township
and is to serve for a term of four years. 53 P.S. §65414. The duties of one
who serves as a tax collector are set forth in the Second Class Township Code
which provides that:
The tax collector of townships shall collect all
county, township, school, institution district and other
taxes levied within townships by authorities empowered to
levy taxes. He shall, in addition to the powers, duties
and responsibilities enumerated in this act, have all the
powers, perform all the duties, be subject to all the
obligations and responsibilities for the collection of
such taxes, as are now vested in, conferred upon, or
imposed upon tax collectors by law. 53 P.S. §65570
In addition to the foregoing, the duties of the township treasurer are
also clearly set forth in the Second Class Township Code as follows:
The township treasurer shall receive all moneys due the
township and deposit the same promptly upon receipt
thereof in a bank, banking institution, or trust company
in the name of the township. He shall keep distinct and
accurate accounts of all sums received from taxes and
other sources, which account shall be open to the
inspection of the supervisors and taxpayers of the
township. He shall pay out all moneys received by him
Stephen D. Hess, Esquire
April 3, 1986
Page 3
only on orders drawn by the supervisors of the township.
He shall annually state his accounts, and lay the same,
together with the vouchers, before the township auditors
for settlement. 53 P.S. §65532
In addition to the foregoing, the Township Code provides for the
appointment of a township secretary who is to perform as follows:
The secretary in each township shall be clerk to the
board of supervisors. He shall keep a record of the
proceedings of said officers i n a minute book i n which he
shall also record all court orders relative to the laying
out, opening and vacating of roads. The minute book,
account book and other financial records shall be
carefully preserved by the secretary and shall be turned
over to his successor in office. Miscellaneous records
and papers of the township other than the minute book and
account book may be destroyed with the consent of
the supervisors after the lapse of six years from the date
of such records.
The secretary shall prepare and write the annual tax
duplicate of the township, and shall receive such salary,
wages or other compensation therefor as shall be fixed by
the township supervisors. The amount paid to the
secretary and treasurer as salary, wages or other
compensation for services shall be determined by the board
of supervisors, except that where a supervisor is serving
as secretary and /or treasurer the auditors shall fix the
compensation. 53 P.S. §65540.
In reviewing the current situation, we will initially note that the
State Ethics Act does not provide that a public official or employee may not
simultaneously serve in two positions of public employment. Generally, such
prohibitions are addressed by the specific municipal codes establishing such
positions. The Ethics Act, however, would prevent a public official or
employee from serving interests that are adverse as noted previously. In an
effort to make this determination, we must review the specific powers and
duties of each of the positions involved in the instant matter in order to
determine if there are any inherent incompatibilities in such simultaneous
service or if there are any other prohibitions associated with such service.
Initially, we will address the position of whether an individual who serves as
township secretary may simultaneously serve in the position as tax collector.
A review of the specific duties and functions involved in each of these
positions does not appear to indicate that there is any inherent
incompatibilities. Specifically, the township tax collector is a collector of
Stephen D. Hess, Esquire
April 3, 1986
Page 4
all taxes and is responsible to the township for the collection of said taxes.
The secretary in the township is, in effect, the clerk to the board of
supervisors and merely keeps records of proceedings of said officers. The
secretary also keeps the books and records of a financial nature for the
supervisors. There does not appear to be any cross jurisdiction between one
who serves as a supervisor's secretary and one who serves as a tax collector.
Some restrictions may be applicable to the individual who serves in these
positions simultaneously and will be noted below.
A more complex issue is raised by the simultaneous service of the same
individual in the position as tax collector and township treasurer. The tax
collector and treasurer both have duties which relate to the receipt and
disbursement of moneys to the township. Indeed, there is some case law
already in existence that indicates that the same individual can not serve in
these positions simultaneously. See Commonwealth of Pennsylvania ex. rel.
District Attorney v. Graham, 50 C C. 402 (1921). See also In re: Application
to Declare Vacant Office of Tax Collector, 23, Luzerne Reporter 477, 1924,
(one person may not act in a dual capacity as counsel for township tax
collector and township treasurer receiving taxes as attorney for the one and
retaining the funds as attorney for the other). Indeed, existing case laws
specifically indicate that the township tax collectors are accountable to the
township treasurer and not to the board of supervisors. See
Lackawanna Township v. Blackwell, 3 C.P. Rep. 197, 4 Lan. 330, (1887). In any
event, even if said positions were not incompatible inherently, the State
Ethics Act requires that as township treasurer the individual serving in that
position should, refrain from undertaking any action in relation to the work
performed by him in his position as township tax collector. See Nallo,
79 -041, Wheeler /Williams, 85 -518. In addition, as township treasurer this
individual would not be able to take any action that specifically related to
the township tax collector's office if that individual were also serving as a
township tax collector. This would be so in light of the fact that as
township treasurer this person is responsible for assuring that all of the
township funds due from the tax collector are appropriately disbursed to the
township. This individual, in this respect, would be monitoring and reviewing
his own work as township tax collector. Thus, even in the event that said
individual could simultaneously serve in both positions, the Ethics Act would
require that as township treasurer this individual abstain from participating
in any matter that involves the office of tax collector. Similarly, as tax
collector, this public official must avoid participating in any matter that's
specifically related to the township treasurer's office. Depending upon the
nature and scope of the duties performed in each position, this restriction
may operate in effect to prevent the same individual from serving in both
capacities. These restrictions, however, would seem to be in accord with the
intent and purpose of the Ethics Act as well as existing case law.
Stephen D. Hess, Esquire
April 3, 1986
Page 5
The final question to be addressed is whether the same individual may
serve as tax collector and secretary /treasurer. The position of
secretary /treasurer seems to be a unique position which may indeed be held by
one person. See 53 P.S. §65511. The nature and scope of the duties served by
this unique office will, of course, determine whether there is any inherent
incompatibility in simultaneously serving in this position. In keeping with
the prior restrictions set forth in this advice, it is advised that the
individual who is simultaneouly serving in the position of secretary /treasurer
and tax collector must abstain from being involved in any matter that relates
to their other office. In this respect, said individual will avoid any
conflict of interest in such simultaneous service. Thus, as
secretary /treasurer, this individual may not participate or take any action in
relation to reviewing, negotiating, reporting, or other matters involving the
office of township tax collector. Similarly, while the township tax collector
may have limited dealings with the secretary /treasurer, this individual, in
their position as township tax collector should avoid any matter that involves
the office of township secretary /treasurer. In light of the above abstention
restrictions, the board of supervisors or the solicitor should review the
specific duties and responsibilities of both offices in which this individual
will attempt to serve. Those areas where this person must perform duties in
one office that relate to the other office should be delineated in writing
and this person must abstain from acting in such matters. Setting forth these
areas, in this manner, will assist the official in effectively complying with
the provisions of the Ethics Act. Additionally, the fact that said official
has not participated in matters as outlined above should be appropriately
recorded.
Conclusion: The Ethics Act presents no per se prohibition upon a public
employee serving in simultaneous public positions. The Act does not prohibit
a township secretary from serving as a township tax collector. While we do
not rule that the township tax collector and treasurer positions are
inherently incompatible in this advice, we do advise that existing case law
would riot already address this issue. Under the Ethics Act, any individual
who simultaneously serves in a position of township treasurer must abstain
from participating in any matter that involves the office of township tax
collector. Similarly, as township tax collector, this individual would have
to abstain from any matter involving the office of township treasurer. The
same restrictions would apply to any individual who simultaneously serves as
township secretary /treasurer and township tax collector.
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 crimi nal proceedi ng, providi ng the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
Stephen D. Hess, Esquire
April 3, 1986
Page 6
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.
This letter is a public record and will be made available as such.
erely,
John J. •nt o
Gene Counsel