Loading...
HomeMy WebLinkAbout88-588 TodaroMr. David L. Todaro 1327 Broad Street S. Greensburg, PA 15601 Dear Mr. This requested Todaro: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1988 88 -588 Re: Simultaneous Service, General Ledger Supervisor ii County Controller's Office, Borough tax Collector responds to your letter of April 29, 1988, in which you advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a Supervisor in the County Controller's Office from also serving as a Borough Tax Collector. Facts: You state that you are currently employed as a General Ledger Supervisor in the Westmoreland County Controller's Office performing mainly accounting work. You state that you are considering running for the office of Tax Collector in South Greensburg next year and that since that position is only part - time, you would want to keep your current job if elected. You state that you were informed that because you work in the Controller's Office, you would not be eligible to hold both jobv on the basis of a prior Ethics Commission ruling which determined that the jobs were conflicting. You then advise that the Controller's Office maintains the County auditing function and pays the tax collector commissions but that you would not be personally involved with either. You conclude by requesting advice as to whether it would be a conflict if you are elected Tax Collector and maintained your employment in the County Controller's Office. Mr. David L. Todd &rc June 15, 1988 Page 2 Discussion: As a General Ledger Supervisor in the County Controller's Office, you will be considered as a public employee for the purpose of this advice. Further, if you are elected as Borough Tax Collector, you would be a public official subject to the provision of the Ethics Act. Gee Domalakes, Opinion 85 -010; 65 P.S. $402; 51 Pa. Code S1.1. As to whether the Ethics Act would restrict or prohibit an employee in the County Controller's Office from also serving as an e?ect:ed Tax Collector, it is noted that the State Ethics Conur.ssi_on may only address questions regarding the duties and responsibilit of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the County Code. If, however, another.provision of law somehow impacts on the provisions of the State Ethics Act or the Ethics Act or the Ethics Act accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, 85 -020. 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 than 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." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. Stat Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 i 536 (1987). Of Mr. David L. Todaro June 15,1988 Page 3 course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless a*. is provided for by law. Domalakes, 85 -010. In addition to the iw- y)oing provision of law, the State Ethics Commission Imlay ad ,,, L4 other areas of possible conflicts - of 'interest: 65-P.S. y" ) . The parameters of the types of activities encompassed by is provision of law may generally be deters ned by reviewing 1 - and intent of the Ethics The Ethics Act was proms 1 L:ed in order to ensure that the financiaa. ° interest , , of F , .'_ic officials do not conflict with t?.' public trust. As suci, Commission has previously determined that such a conflict would arise when a public official attemf' to serve one or more interests that are adverse. See Alfano, 80 -007; Fritzenger, 80 -008. Within the above provision of law this Commission as previously addressed questions regarding simultaneous service by one individual in incompatible positi.o c. See Nelson, 85 -009. The Ethics Commission has also determine` that any public official must forego any compensation that he she had already accrued in situations where a conflict exist. King, supra. In Nelson, Opinion supra, the State Ethics Commission . considered the question as to whether a Senior Account Clrk j .:. the County Controller's Office could simultaneously serve as a Borough Tax Collector. After noting that the duties of the Senior Account Clerk consisted of merely recording the rece.pt:: of funds collected in the Delinquent Tax Office, recording information regarding payments made to vendors, supplying services or goods to the County, assisting in the balancing of the revenue and expenditure accounts and entering the data regarding the disbursement of funds collected by the Delinquent: Tax Office, the Commission concluded that there was an inherent incompatibility for this individual to be an employee in the County Controller's Office and also to be Borough Tax Colltactor. . The Commission referenced the functions of the Office of County Controller as they appear in the County Code: §4901. Functions of the controller. The controller shall have a general supervision and control of the fiscal affairs of the county and of the accounts and official acts of all officers or other persons who shall collect, receive or distribute the public moneys of the county, or who shall be charged with the management or custody thereof. He may at any Mr. David L. Todaro June 15, 1988 Page 4 time require from any of them, in writing, an account of all moneys or property which may have come into their control. He shall, immediately on the discovery of any default or delinquency, report the same to the commissioners and the court of common pleas of the county, and shall take immediate measures to secure the public moneys or property and remove the delinquent party, if in office and not removed by the commissioners. 16 P.S. 54901. Even though the Commission recognized that the emt: oy no duties in relation to borough taxes, the Commissicn determines that there were a number of concerns with that employee in the Controller's Office. The Commission believed that there was a potential for this individual to have access to information as well as personnel who might benefit him as a Borough Tax Collector. The Commission then analyzed in detail the responsibility of the Controller regarding the proper accounting of funds due the County and noted that the County Controller employee would be subject to review by the Controller, both as an employee of the County Controller but also as an elected official. The Commission also expressed concern regarding compensation for Borough Tax Collector which is received as a percentage of the taxes collected when the controller's office performs some function regarding the disbursing of compensation. After expressing other concerns, the Commission concluded that there was an inherent incompatibility between being an employee in the County Controller's Office and being elected Borough Tax Collector. Based upon the above formal opinion of the Ethics Commission on this particular issue, you are advised that there would be an inherent incompatibility between your position as General Ledger Supervisor and as elected Borough Tax Collector and therefore under Sections 3(a) and 3(d) under the Ethics Act you may not simultaneously serve in both of those positions. Lastly, it must be noted that the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a General Ledger Supervisor in the County Controller's Office, you are considered a public employee subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, you may not simultaneously serve in the position of General Ledger Supervisor in the County Controller's Office and elected borough Tax Collector. Mr. David L. Todaro June 15, 1988 Page 5 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 .defense in any enforcement proceeding initiated by the CoRmii {ztn,. and evidence of good faith conduct in any ether civil or crira 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 i available as Finally, if you disagree with this Advice or if you have Eny 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 servi;e of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, °°" Vincent J. Dopko, General Counsel