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HomeMy WebLinkAbout18-528 SpeersPHONE: 717 -783 -1610 TOLL FREE: 1- 800 - 932 -0936 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