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HomeMy WebLinkAbout94-650 AllenRichard A. Allen Tax Collector Borough of West Mifflin 4733 Greensprings Avenue West Mifflin, PA 15122 Dear Mr. Allen: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 22, 1994 94 -650 Re: Conflict, Public Official /Employee, Tax Collector, Tax Reduction Refunds, Clerical Expenses, Reimbursement to Tax Collector. This responds to your letter of December 7, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a tax collector from receiving reimbursement from the borough and school district to pay additional clerical expenses in processing refunds as to tax reductions resulting from appealed assessments. Facts: As to the Allegheny County 1994 Reassessment Program, an unusual situation exists where many of West Mifflin's residents who appealed their assessments have received reductions from the County after their 1994 taxes were paid. You are now receiving change authorizations from the County and are expecting 800 more which will need to be processed by the tax collector's office before the Borough and School District can make refunds to the taxpayers who are not waiting patiently. You normally process 25 -50 changes in an entire year and are able to handle that volume during your regular part -time schedule. You seek to have four clerks work full -time for a few weeks to complete this unexpected work quickly. However, the tax collector's office budget is not sufficient for this additional payroll. You inquire as to whether it would be violative of the Ethics Law if the Borough and School District paid for additional clerical expenses by reimbursing the Tax Collector. You note that if the funds are not provided to cover this additional cost, you would have to complete the work during normal work hours which could run well into 1995 before the refunds can be Allen, Richard A., 94 -650 December 22, 1994 Page 2 made. Since the taxpayers are already becoming impatient, you seek an advisory opinion on this matter as quickly as possible. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage 4n an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Tax Collector for the Borough of West Mifflin, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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 in the Ethics Law as follows: 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. Allen, Richard A., 94 -650 December 22, 1994 Page 3 "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 anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Generally, as to Section 3(a) of the Ethics Law, the Commission has determined that the receipt of any financial gain which is not authorized in law by a public official or public employee through public office is considered to be a private pecuniary benefit contrary to Section 3(a) of the Ethics Law, Act 9 of 1989. See Weber, Opinion 94 -005, Hessinger, Order 931, Allen, Order 612 -R. In Allen v. State Ethics Commission, filed at 1790 C.D. 1988 on April 20, 1989, Commonwealth Court, in affirming a decision of the Commission which ruled that the charging of tax certification fees by a tax collector which was not authorized in law was violative of the Ethics Law, noted: However, this absence of statutory authorization does not per se preclude a borough tax collector such as Petitioner from charging a fee for tax certifications. Section 1202(1) of the Borough Code, 53 P.S. §46202(1), provides that a borough may, by ordinance, "prescribe reasonable fees for the services of [its] officers . . ." Clearly then , a tax certification fee may be established by borough ordinance." Allen v. State Ethics Commission at page 3. In light of the above precedent, you are advised that if the Borough and School District do authorize payment for additional clerical expenses, such authorization for additional employees in the Tax Collector's office would not be prohibited by the Ethics Law. It is expressly assumed that all of the authorized funds would be for and limited in use to the four clerks who would work on a full -time temporary basis. Allen, Richard A., 94 -650 December 22, 1994 Page 4 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. Specifically not addressed herein is the applicability of the respective municipal codes. Conclusion: As Tax Collector for the Borough of West Mifflin, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit a borough and school district from authorizing a payment for additional full -time temporary clerical expenses in the tax collector's office subject to the restrictions and qualifications noted above. Lastly, the propriety of the proposed 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. such. 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 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 actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(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 fifteen (15) days may result in the dismissal of the appeal. cerely, k A Vincent J."Dopko Chief Counsel