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HomeMy WebLinkAbout87-605 AtzMr. Bernard Atz 415 Hopewell Road Brownsville PA, 15417 Dear Atz: Mailing Address. State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa, 17108 -1470 August 13, 1987 ADVICE OF COUNSEL 87 -605 Re: Simultaneous Service, Second Class Township Supervisor and Tax Bureau Administrator This responds to your letter of July 23, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a Second Class Township Supervisor you may also serve as or undertake activity as Tax Bureau Administrator. Facts: You currently serve as a township supervisor for Luzerne Township which is a second class township. In addition, you were a roadmaster for Luzerne Township, hereinafter Township. You ask whether the Ethics Act imposes any prohibition upon your acceptance of employment as Tax Bureau Administrator in the office of the Collector of Earned Income Taxes which serves Luzerne Township. The Collector of Earned Income Taxes, hereinafter Collector, is a bureau which has been formed by several school districts, turnpikes, cities and boroughs pursuant to the Section 10 of the Local Tax Enabling Act of 1965 P.L. 1257, 53 P.S. §6910. Section 10 of the Local Enabling Tax Act, supra, provides that any political subdivisions is authorized to provide for the creation of a bureau for the assessment and collection of taxes imposed under the aforecited act. It is further provided that any political subdivisions imposing taxes under the Authority of the Act may make joint agreements for the collection of the taxes. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Bernard Atz August 13, 1987 Page 2 It is further provided for in the Second Class Township Municipal Code, 53 P.S. §65410(b): Except as provided in section 514, no supervisor shall at the same time hold any other elective or appointive township office or position other than township roadmaster or secretary- treasurer. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission. First, the exception in §514 is inapplicable because that deals only with superintendents and roadmasters. Since the position of Tax Bureau Administrator for the Earned Income Tax Collector is not a township elective or appointive position, the prescription in 53 P.S. §65410 is inapplicable. In this regard, the agreement which creates the Collector and which 1s incorporated herein by reference, provides in Article IV, Section 4.01: Bureau is a creature of members and as such is answerable and accountable to members in accordance with agreement. Bureau is an entity intended to produce economies and efficiencies in the collection of taxes without profit to Bureau or any member. Thus, the Collector would not be another elective or appointive township office or position within Section 410(b) of the Code, supra. As Tax Bureau Administrator, your duties and responsibilities are basically limited to the day -to -day operation of the Tax Bureau. You ask, under the circumstances, whether your simultaneous service would present a conflict of interest under the Ethics Act. Discussion: It is assumed, for purposes of this advice and response, that in your capacity as a Second Class Township Supervisor, you are to be considered a "public official" as that term is defined in the State Ethics Act. See Section 2, State Ethics Act, 65 P.S. 402. As a public official, your conduct must conform to the provisions of the State Ethics Act. The most pertinent provision of the State Ethics Act is Section 3(a) of the Ethics Act which provides: 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). Mr. Bernard Atz August 13, 1987 Page 3 Of course, under this provision, you may not use your public position to secure any financial gain for the Collector. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official and as Tax Bureau Administrator. Basically, the Ethics Act does not state that it is inherently incompatible for a public official and /or employee to serve as Tax Bureau Administrator. See Coar, 86- 636 -A. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that you may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (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). Section 3(b) of the Ethics Act states that no person shall give to a public official or employee nor shall any public official or employee accept anything of value based on the understanding that the official's vote, action, or judgment would be influenced thereby. See 65 P.S. 403(b). You must be cognizant of this requirement and observe this provision of the Ethics Act. Reference to this Section is made not to indicate that any violation or potential violation exists but merely to provide a complete review of the Sections of the Ethics Act which may be generally applicable to these circumstances. Although there is no per se prohibition under the Ethics Act to your simultaneous service, the Ethics Act would require, that as township supervisor, you should abstain from participating in any Township matter relating to tax assessment and collection; conversely, in your position as Tax Bureau Administrator, you should abstain from participating in any matter that involves the assessment or collection of taxes specifically from Luzerne Township. Mr. Bernard Atz August 13, 1987 Page 4 This Advice is issued solely under the Ethics Act and should not be understood to serve as "clearance" to operate as outlined above under any codes, statutes, ordinances, regulations, etc. other than the Ethics Act. Conclusion: Under the circumstances outlined above, there is no inherent prohibition under the Ethics Act for you to serve both as a public official and as Tax Bureau Administrator. Accordingly, you may, consistent with the Ethics Act, serve in these capacities simultaneously, subject to the limitations on participations as outlined above. 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. Sincerely, Vincent . Dopko General Counsel