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Home My WebLink About88-557 HeasleyMr. Samuel H. Heasley 415 Main Street Irwin, PA 15642 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 26, 1988 88 - 557 Re: Conflict of Interest, Public Official, Borough Tax Collector, Bidding On Property at County Tax Sale Dear Mr. Heasley: This responds to you letter of [March] 15, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a borough tax collector from purchasing property in the borough that is put up for tax sale by the County Tax Claim Borough. Facts: In your letter you state that you are the elected tax collector for Irwin Borough. After noting that the house adjoining your own is and has been vacant for nine years, is an eyesore and a fire hazard, you state that you have complained, without success, to various borough officials regarding that property as to violations of property maintenance and building codes. You then state that the owner of that property resides in Los Angeles, California but paid the property taxes until the fall of 1986, even though the house has been unoccupied. You then state that the taxes have remained delinquent and if they are not paid by September, 1988, the Westmoreland County Tax Claim Borough will put the house up for a tax sale. You further note that if you are permitted to bid on and buy the property at the tax sale, you would not be using any inside information in that the property would be posted and advertised in the local paper for tax sale. It is further stated by you that if you obtain the property, you would probably tear it down so as to resolve a problem that the borough officials have been unwilling Mr. Samuel H. Heasley April 26, 1988 Page 2 to resolve. Under these facts and circumstances, you request advice as to whether you as elected tax collector for Irwin Borough, may under the Ethics Act bid upon and purchase the adjoining property in a tax sale. Discussion: As a tax collector for Irwin Borough, you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, your subject to the provisions of the Ethics Act. f , 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 or employee may not use his public office or confidentiay. information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. 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." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. 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). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Mr. Samuel H. Heasley April 26, 1988 Page 3 Section 3(b) of the Ethics Act provides: (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, polit'i cal contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. In the instant matter, Section 3(a) of the Ethics Act would not preclude you as elected tax collector from bidding on this, borough property which is put up for tax sale. Under these circumstances, you would not be using public office or any confidential information; if the taxes were not paid on the property in question, it will be put up for tax sale by the Westmoreland County Tax Claim Borough and you as well as any other citizen could bid on the property. In this regard, it should be noted that the Ethics Commission has determined that the Ethics Act was primarily designed to restrict the activities of public officials /employees where conflicts of interests or the appearance of thereof exist but that the Ethics Act should not be interpreted to preclude public officials /employees from participating in programs or matters that might otherwise be available to them as citizens. See Pepper, Opinion 87 -008. Thus, you may consistent with Section 3(a) of the Ethics Act, bid on the borough property if it is put up for tax sale by the Westmoreland County Tax Claim Borough. Mr. SamuA1 H. Heasley April 26, 1988 Page 4 such. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability o any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act•has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a tax collector for Irwin Borough, you are a public official subject to the provisions of the State Ethics Act. You may, consistent with the Ethics Act, bid upon a property in the borough which is put up for tax sale by the Westmoreland County Tax Claim Borough subject to the qualifications referenced above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 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 former 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. •cerely, Vincent `d. Dopko, General Counsel