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HomeMy WebLinkAbout87-641 MarlesBlake C. Marles, Esquire The Traylor 15th and Hamilton Streets Allentown, PA 18102 Dear Mr. Marles: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 9, 1987 ADVICE OF COUNSEL 87-641 Re: Simultaneous Service, First Class Township, Tax Collector, First Class Township Treasurer This responds to your letter of November 4, 1987, wherein you requested advice from the State Ethics Commission. Issue: Whether the same individual may simultaneously serve as first class township tax collector and as first class township treasurer. Facts: In your letter you state that you have read Opinion 86 -004 wherein the State Ethics Commission determined that it was improper for the same individual to serve simultaneously as borough tax collector and borough treasurer. You then express a concern regarding the opinion as it relates to first class townships and specifically as to the first class township positions of tax collector and treasurer. You state that in your view Opinion 86 -004 creates contradictory legal results depending upon the nature of the municipal subdivision because the positions of tax collector /treasurer for first class townships are statutorily the same. You conclude by requesting advice as to whether the results would be the same concerning simultaneous service of a tax collector /treasurer in first class townships in light of Opinion 86 -004. Discussion: As a tax collector or treasurer, an individual is a "public official" as that term is defined in the Ethics Act. See Johnson, 86 -004. 65 P.S. §402. As such, that individual is subject to the Ethics Act and the restrictions therein are applicable to him. Blake C. Maries, Esquire December 9, 1987 Page 2 Section 3(a) of the Ethics Act 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). Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "f i ananci al gain other than compensation provided by law." See McCutcheon v. State Ethics Commission, 77 Pa. COMM . 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. It is further provided in Section 3(b) of the Ethics Act: 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). Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). In applying the above provisions of the Ethics Act to the question of the simultaneous service of a first class township tax collector /treasurer, "contradictory legal results" do not occur depending upon whether the individual serves in a borough or first class township because the Borough Code and Second Class Township Code are two differenct statutes containing Blake C. Marles, Esquire December 9, 1987 Page 3 dissimilar provisions. This was specifically noted in Opinion 86 -004 -R which denied reconsideration. Specifically, this Commission, in considering the First Class Township Code and the Borough Code relative to simultaneous service, noted that the First Class Township Code would not be impacted just because simultaneous service would be prohibited under the subsequently enacted Borough Code. This Commission concluded that the General Assembly must have had "sound reasons" for making distinctions in the various codes regarding the compatibility or incompatibility of simultaneous service as to these positions. Therefore, consonant with Opinion 86 -004 and 86- 004 -R, although the positions of tax collector /treasurer could not be simultaneously held by the same individual in a borough, there is no prohibition under the Ethics Act for the same individual to simultaneously serve as first class township tax collector and first class township treasurer under the First Class Township Code. Lastly, it is noted that the State Ethics Commission has only addressed your question in the context of whether an individual may simultaneously serve as first class township tax collector and first class township treasurer under the State Ethics Act. Conclusion: An individual as a first class township tax collector or first class township treasurer is a "public official" subject to the provisions of the State Ethics Act. Under the facts and circumstances as outlined above, there is no prohibition under the Ethics Act for an individual to simultaneously serve as first class township tax collector and as first class township treasurer. 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, Zi Vincent J. Dopko General Counsel