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HomeMy WebLinkAbout97-589 HarrFaye L. Harr Borough Secretary Borough of Beallsville PO Box 6 Beallsville, PA 15313 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 9, 1997 97 -589 Re: Conflict, Public Official /Employee, Borough Secretary, Real Estate Tax Collector, Hospitalization Plan, Payroll Deduction. Dear Ms. Harr: This responds to your letter of June 5, 1997 by 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 - Secretary and Real Estate Tax Collector with regard to deducting the payment for her family's participation in the Borough's hospitalization plan from her Borough salary, thereby reducing her wages and financially benefitting her in terms of collecting Social Security. Facts: As the Borough Secretary and Real Estate Tax Collector for Beallsville Borough, Washington County, you request an advisory from the State Ethics Commission. As Borough Tax Collector, you receive approximately $3,000 per year. As Borough Secretary, you receive a salary of $9,600, and you also receive a hospitalization policy for yourself and your husband. Until recently, your cost for the hospitalization was approximately $120 per month, because your family qualified as a low income family. Recently, your husband started working for Beallsville Borough. Accordingly, you are no longer considered a low income family, and your cost for the hospitalization has increased to approximately $326 per month. You state that you will be 62 next year and that you plan to sign up for Social Security and work for a few more years if your health allows. You ask whether it would be permissible under the Ethics Law for the Borough to pay the $326 per month hospitalization cost and subtract that amount from your wages as Borough Secretary, thereby reducing your Borough salary to $600 per month. You state that the effect of this would be to lower your wages and allow you to collect and not have to return over half of what you are eligible for Social Security. 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 Harr, 97 -589 July 9, 1997 Page 2 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 Real Estate Tax Collector for the Borough of Beallsville, 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. As Borough Secretary, you may or may not be a "public employee" as that term is defined in the Ethics Law, depending upon your duties and responsibilities, but for purposes of this Advice, it shall be assumed that you are subject to the Ethics Law in that position as well. 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 applying the above provisions of the Ethics Law to your inquiry, it is noted that the State Ethics Commission does not address the propriety of payroll deduction practices per se. Dawson, Opinion No. 97 -003. However, the Commission does have the jurisdiction to determine the propriety of a public official's /public employee's conduct under the Ethics Law. In this case, it is clear that if the various tax and Social Security laws would permit the payment arrangement that you are proposing, Section 3(a) of the Ethics Law would not prohibit your using such payment arrangements, Harr, 97 -589 July 9, 1997 Page 3 because any financial benefit you would receive would be authorized in law. However, if the payment arrangement that you are proposing is otherwise illegal, Section 3(a) of the Ethics Law would prohibit you from using the authority of your position as Borough Secretary to advocate or secure such a payment arrangement for your financial benefit. It is recommended that you obtain legal advice as to the legality of the proposed arrangement under such other laws. 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, the Internal Revenue Code, or any other tax - related or Social Security - related statutes or codes. Conclusion: As Real Estate Tax Collector for Beallsville Borough, you are a public official subject to the provisions of the Ethics Law. As Borough Secretary, you may or may not be a "public employee" as that term is defined in the Ethics Law, but for purposes of this Advice, it is assumed that you are subject to the Ethics Law in that position as well. Section 3(a) of the Ethics Law would not apply to restrict you as to payment arrangements for your hospitalization through the Borough insofar as the method chosen is otherwise legal. Section 3(a) of the Ethics Law would prohibit you from using the authority of your position as Borough Secretary to advocate or secure otherwise illegal payment arrangements for such hospitalization for your financial benefit. 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. 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. cerely, 4b Vincent op o Chief Counsel