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ADVICE OF COUNSEL
April 27, 2018
To the Requester:
Mr. Thomas J. Speers, Esquire
Dear Mr. Speers:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
18 -528
This responds to your letter dated March 16, 2018, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
F —a.07S. §'1101 et se q., would impose prohibitions or restrictions upon a township tax
collector with regard to appointing her son to the position of deputy tax collector, where
factually, her son would receive no compensation for serving in such position and would
only collect and settle taxes during any incapacitation of the tax collector.
Facts: You have been authorized by Eileen Stephenson ( "Ms. Stephenson ") to
request an advisory from the Commission on her behalf. You have submitted facts that
may be fairly summarized as follows.
Ms. Stephenson was recently sworn into office as the elected Tax Collector for
Whitpain Township ( "Township "), located in Montgomery County, Pennsylvania. Ms.
Stephenson wishes to appoint her son to the position of Deputy Tax Collector.
Ms. Stephenson's son would receive no compensation for serving as a Deputy
Tax Collector, and he would only act in the event of Ms. Stephenson's incapacitation.
All compensation would continue to be paid to Ms. Stephenson during her
ld
incapacitation. Ms. Stephenson's bond wou remain in effect, and she would be
responsible for any inaccuracies in the Deputy Tax Collector's work.
Based upon the above submitted facts, you ask whether Ms. Stephenson would
be permitted to appoint her son to the position of Deputy Tax Collector.
It is administratively noted that the Local Tax Collection Law provides, in
pertinent part, as follows:
§ 5511.22. Deputy tax collectors
(b) ... at a minimum at the beginning of the tax
collector's term, a tax collector shall, with the approval of a
8 eers, 18 -528
April 27, 2018
Page 2
municipality for which the tax collector was elected and the
tax collector's surety, appoint an individual as a deputy tax
collector who shall collect and settle taxes during any
incapacitation of the tax collector....
72 P.S. § 5511.22(b).
Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10, (11). An advisory only affords a
defense to the extent the requester has truthfully disc osed all of the material facts.
As the Township Tax Collector, Ms. Stephenson is a public official subject to the
provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of
employee shall engage
of interest.
65 Pa.C.S. § 1103(a).
interest. - -No public official or public
in conduct that constitutes a conflict
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
S eery, 18 -528
April 27, 2018
Page 3
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809.
In applyingg the above provisions of the Ethics Act to your inquiry, you are advised
that Section 1103(a) of the Ethics Act would not prohibit Ms. Stephenson from
appointing her son as the unpaid Deputy Tax Collector subject to the condition that
regardless of who would be appointed as the Deputy Tax Collector, the Deputy Tax
Collector would receive no compensation. Cf., Avolio, Advice 15 --551; McMullin, Advice
15 -513; Fischer, Advice 15 -512; Mills, Advice T5 -5U9; Sharrar, Advice 15-507; Harry,
Advice 144 -5657
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of 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: Based upon the submitted facts that: (1) Eileen Stephenson ( "Ms.
Step enson `) is the elected Tax Collector for Whitpain Township ( "Township "), located
in Montgomery County, Pennsylvania; (2) Ms. Stephenson wishes to appoint her son to
the position of Deputy Tax Collector; (3) Ms. Stephenson's son would receive no
comppensation for serving as a Deputy Tax Collector, and he would only act in the event
of Ms. Stephenson's incapacitation; (4)) all compensation would continue to be paid to
Ms. Stephenson during her incapacitation; and (5) Ms. Stephenson's bond would
remain in effect, and she would be responsible for any inaccuracies in the Deputy Tax
Collector's work, you are advised as follows.
As the Township Tax Collector, Ms. Stephenson is a public official subject to the
provisions of the Public Official and Employee Ethics Act ('Ethics Act "), 65 Pa.C.S. §
1101 et seq. Section 1103(a) of the Ethics Act would not prohibit Ms. Stephenson from
appointing her son as the unpaid Deputy Tax Collector subject to the condition that
regardless of who would be appointed as the Deputy Tax Collector, the Deputy Tax
Collector would receive no compensation. Lastly, the propriety of the proposed conduct
has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actual)
received at the Commission within thirty (30) days of the date of this
Speer , 18 -528
April 27, 2018
Page 4
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Since ely,
Robin M. Hittie
Chief Counsel