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Home My WebLink About96-555 SullivanJanet M. Sullivan 344 Avenue L Forest Hills Pittsburgh, PA 15221 Dear Ms. Sullivan: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 22, 1996 96 -555 Re: Conflict, Public Official /Employee, Borough, Tax Collector, Office Rental Agreement, Tax Certification Fees. This responds to your letter of April 17, 1996 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 borough tax collector with regard to entering into an agreement to split tax certification fees with the borough, where the borough has not passed an ordinance authorizing tax certification fees. Facts: As the newly elected Tax Collector for the Borough of Forest Hills, Pennsylvania, you request an advisory from the State Ethics Commission. You have submitted two documents which are incorporated herein by reference: a proposed agreement between you as Tax Collector and the Borough of Forest Hills, which agreement has been presented to you for your consideration by the Forest Hills Borough Council (Council), and a proposed resolution authorizing the President of the Council to execute the agreement. The proposed agreement provides for your rental, for tax collection purposes, of Borough office space, equipment, and telephone answering services. Additionally, the agreement provides that the Borough will split equally with you a $25 fee charged for tax verification letters. Pursuant to the agreement, the Borough would initially receive such payments and would pay you for your share on a monthly basis. You specifically ask whether there would be any violation of Sections 3(b), 3(c), and 3(f) of the Ethics Law, if you: 1. as Tax Collector sign an agreement of this type; 2. sign this agreement in conjunction with the resolution (as opposed to an official municipal ordinance); Sullivan, 96 -555 May 22, 1996 Page 2 3. accept as legal compensation one -half of the tax certification fees which the Borough would receive as proposed in the agreement and resolution. 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 in 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 Forest Hills, 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. "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 Sullivan, 96 -555 May 22, 1996 Page 3 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. Section 3(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. In addressing your inquiry, it is initially noted that although you have posed your questions specifically citing Sections 3(b) and 3(c) (which pertain to conduct in the nature of bribery) and 3(f) (which pertains to contracting with one's own governmental body), none of those Sections would appear to have applicability to the facts which you have submitted. However, given that the questions which you have posed necessarily implicate Section 3(a), the applicability of that Section shall be addressed. As for Section 3(a), the propriety of collecting tax certification fees hinges upon whether the Borough has properly authorized the collection of such fees. Pursuant to Section 3(a) of the Ethics Law, a Tax Collector may not collect tax certification fees unless there is specific legal authorization to do so. Allen,, Order No. 612 -R, affirmed as to that holding in Allen v. SEC, 1790 C.D. 1988 (Pa. Commw. Ct., Memorandum Opinion filed April 20, 1989). There may be a basis for authorizing fees for tax certifications by ordinance: The powers of the borough shall be vested in the corporate authorities. Among the specific powers of the borough shall be the following, and in the exercise of any of such powers involving the enactment of any ordinance or the making of any regulation, restriction or prohibition, the borough may provide for the enforcement thereof and may prescribe penalties for the violation thereof or for the failure to conform thereto: Sullivan, 96 -555 May 22, 1996 Page 4 (1) Fees for service of officers. To prescribe reasonable fees for the services of their officers and to enforce the payment of the same. 53 P.S. §46202(1). However, in Allen, Order No. 612 -R, where no such ordinance had been passed, the Commission stated: The above merely authorizes a borough to prescribe certain fees for the service of officers. Absent the exercise of that power through an ordinance, no such fee may be changed [sic] by the ex parte action of an officer. Since no authority was established by action of the borough, there is no legal basis for the tax certification fee. Allen, Order No. 612 -R at 9. Based upon the facts which you have submitted, it would appear that, as in Alien, no such ordinance has been passed by the Forest Hills Borough Council. The proposed contract between the Borough and you as Tax Collector would be inadequate to authorize the collection of tax certification fees. Thus, absent an ordinance properly authorizing such fees, pursuant to Section 3(a), you could not accept any portion of them. Furthermore, an arrangement whereby the Borough would initially receive the fees and subsequently split them with you would not alter this conclusion. By entering into the agreement with the Borough, you would be acting in your capacity as Tax Collector, and you would therefore be using the authority of your office to collect those unauthorized fees no less than if you directly collected the fees yourself. 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 Borough Code or the Local Tax Collection Law. Conclusion: As Tax Collector for the Borough of Forest Hills, you are a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you may not accept tax certification fees or any portion of same where there is no Borough ordinance authorizing the collection of such fees. A contract between the Borough and you as Tax Collector would be inadequate to authorize the collection of tax certification fees. 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. This letter is a public record and will be made available as such. Sullivan, 96 -555 May 22, 1996 Page 5 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 thirty (30) days of the date of this 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. Spcerely, Vincent J. opko Chief Counsel