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Home My WebLink About93-536 JohnstonDorothy M. Johnston R.D. 1, Box 9 Penfield, PA 15849 Dear Ms. Johnston: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 1, 1993 93 -536 Re: Simultaneous Service, Township Secretary- Treasurer and Township Tax Collector. This responds to your letter of February 24, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a township secretary- treasurer for a second class township from also serving as township tax collector. Facts: You state that you are currently employed as Secretary - Treasurer of Huston Township, Clearfield County, Pennsylvania. You are seeking the office of Huston Township Tax Collector during the upcoming primary election scheduled for May 18, 1993. You indicate that in discussing this matter with other offices, you were informed that you are permitted to hold these positions and that it is not considered a conflict of interest. However, you state that since the State Ethics Commission has the authority to determine these factors, you are requesting a written advisory from the Commission to help eliminate any questions that may arise if you would have the opportunity to serve as Huston Township Tax Collector in the future. Although you have not so stated, it is noted that Huston Township is a Township of the Second Class. Discussion: As Secretary- Treasurer for Huston Township in Clearfield County, Pennsylvania, you are a "public employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. If elected Huston Township Tax Collector, you would in that Dorothy M. Johnston April 1, 1993 Page 2 position be considered a "public official" as defined in the Ethics Law, and therefore, you would be subject to the provisions of the Ethics Law in that capacity as well. 65 P.S. 5402; 51 Pa. Code 51.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Dorothy M. Johnston April 1, 1993 Page 3 Turning to your specific inquiry, it is initially noted that the General Assembly does not appear to have expressly declared the second class township positions of township secretary- treasurer and township tax collector incompatible. However, there is judicial precedent declaring the positions of tax collector and township treasurer for a second class township to be incompatible. In Commonwealth ex. rel. Morris v. Graham, 70 Pitts. L.J. 154 (1921), it was noted: The duty of the collector is to pay to the treasurer on the first instant and not even to the board of supervisors. If the same person, at the same time, held both offices, what opportunity would be afforded the public to know whether the collector was complying with the provisions of the Act of Assembly requiring him to pay over all monies collected at intervals of a month. In our opinion, the two offices if not incompatible, are made inconsistent in their functions by the Act itself. It seems undoubtedly to have been the purpose and intention of the legislature, insofar as townships of the second class are concerned, to keep the offices of tax collector and treasurer separate and to have different persons hold and perform the duties thereof, or, in other words, these two offices shall not be held by at the same time by one and the same person. See also, In re: Application to Declare Vacant Office of Tax Collector, 23 Luzerne Reporter 477 (1924) (One person may not act in a dual capacity as council for a township tax collector and township treasurer receiving taxes as attorney for the one and retaining the funds as the attorney for the other). The aforecited decisions were cited by the State Ethics Commission in Johnson, Opinion 86 -004, wherein it was concluded that the positions of borough tax col lector and borough treasurer were inherently incompatible and that simultaneous service in these positions presented a conflict of interest under the Ethics Act. The Commission reasoned that the tax collector was specifically accountable to the treasurer in a "check and balance system" designed to maintain appropriate accounting of all funds due to the municipality and received by it. Where one individual would simultaneously serve in both positions, the check and balance system and the procedure for accountability would be lost, in that one individual could not be accountable to himself in both positions. As treasurer, the individual would be reviewing his own work and holding himself accountable as tax collector, which Dorothy M. Johnston April 1, 1993 Page 4 presented the type of conflict of interest that the Ethics Law was intended to prevent. These same concerns of the Commission apply equally to this case involving a second class township. Based upon all of the above, it is clear that your proposed simultaneous service in the second class township positions of Township Secretary- Treasurer and Township Tax Collector would constitute a conflict of interest under the Ethics Law and therefore would be prohibited by the Ethics Law. In addition to the reasoning in Johnson, Opinion 86 -004, and the judicial precedent cited therein and above, the conflict of interest in this case involving these positions under the Second Class Township Code is aggravated by the fact that as township treasurer, your compensation could by law be fixed at a certain percentage of all monies received and paid by you, 53 P.S. §65531. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Secretary- Treasurer for Huston Township in Clearfield County, Pennsylvania, you are a "public employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. If elected Huston Township Tax Collector, you would in that position be considered a "public official" as defined in the Ethics Law, and therefore, you would be subject to the provisions of the Ethics Law in that capacity as well. As a public official /employee, you may not, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Township Secretary- Treasurer and Township Tax Collector for Huston Township. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 Dorothy M. Johnston April 1, 1993 Page S issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Very truly yours, Vincent J. Dopko, Chief Counsel