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HomeMy WebLinkAbout87-647 MarmoMichael F. Marmo, Esquire 235 Hazelwood Avenue Emsworth, PA 15202 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783-1610 December 22, 1987 ADVICE OF COUNSEL 87 - 647 Re: Conflict of Interest, Tax Collector, Sale of Tax Collection Software Dear Mr. Marmo: This responds to your letter of November 24, 1987, in which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Act imposes any restrictions upon a tax collector from selling customized tax collection computer software which was developed privately through his own funds and which is licensed to him individually. Facts: In your letter you state that you are the tax collector for the Borough of Emsworth and that during the past year you contracted with a professional computer programming company, Systems Consulting Inc., to develop a customized software package for use in the collection of taxes. You further state that neither the borough nor the school district contributed any monies towards this program and that it was exclusively paid for by you personally and licensed to you individually. You further state because the program has been developed, you are interested in selling copies of the program to interested parties so as to recoup some of the personal costs which you paid in developing the software. You classify yourself in your capacity as tax collector as a self - employed contractor and note that neither the borough nor the school district contributed to the project. You conclude by asking whether the Ethics Act would prohibit you or impose any restrictions upon your selling this tax collection software package for monetary gain. Discussion: As a tax collector, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Michael F. Marmo, Esquire December 22, 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other tan compensation as provided for by law for himself or a member of his immediate family. 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 or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, you may not use your public position to secure any financial gain for yourself or your immediate family other than that: which is provided for in law. Within the above provision of law, the Commission has also determined t; a public official should not use his public office for personal activities such as campaigning for re- election or for another public office. Cessar, 82 -002. In this regard, the Commission has held that it would be improper for a public official to use the facilities, personnel, equipment, postage, stationery or other benefits of the public office to advance personal interests. See Dorrance Order, No. 456. Since in the instant situation the customized software tax collection package was developed for you by Systems Consulting Inc., and you paid for that package out of your own personal expenses, it does not appear that the above provision would be implicated and hence would not prohibit you from selling the software to recoup your personal expenses. In addition to the foregoing, the Ethics Act authorizes the State Ethics Commission to address other areas of possible conflicts of interests. 65 P.S. §403(d). The parameters of the types of activities encompassed by this particular provision of law are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to insure the public trust that the interests of. their officials do not conflict with the public trust. 65 P.S. §401. Generally, a conflict of interest develops whenever a public official attempts to serve one or more interests that are adverse. See Nelson /McElrath, 85 -009R. Michael F. Marmo, Esquire December 22, 1987 Page 3 Under Section 3(d) of the Ethics Act, when you would advertise or attempt to sell this customized tax collection software package: you could not use your public office as a contact point or meeting place; you could not use the facilities, personnel, equipment, postage, stationary or other benefits of your public office; you could not reveal or use your public office or the status of that public office as an aid to making sales. Although the Ethics Act would not prohibit you from selling this package, it would preclude you from using any of the trappings of your office as tax collector to benefit you in the sale of this software package. Thus, the Ethics Act would not prohibit you from selling this software package but you would have to sell it in your capacity as a private individual without any reference or use of your public office to effectuate the sales. Lastly, your question has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, ordinance, or code of conduct other than the Ethics Act has not been considered. Conclusion: As a tax collector for the Borough Emsworth, you are a "public official" subject to the provisions of the Ethics Act. Although the Ethics Act would not per se prohibit you from selling the tax collection software package, you must observe the restrictions outlined above in selling the software package. 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 J. Dopko General Counsel