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HomeMy WebLinkAbout99-526 HaluskaAlbert L. Haluska 404 5th Ave. Patton, PA 16668 Dear Mr. Haluska: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 25, 1999 Re: Simultaneous Service, Tax Collector and Borough Council Member. Sections 1 103(a) and 1103(j) of the Ethics Act provide: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us ® e -mail: ethics @state.pa.us 99 -526 This responds to your letter of February 28, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act imposes any prohibition or restrictions upon an appointed collector of earned income tax for a borough and school district with regard to simultaneously serving as a borough council member. Facts: As the current appointed Collector of Earned Income Tax for Patton Borough ( "Borough ") and Cambria Heights School District, you seek an advisory from the State Ethics Commission. In your current position as Tax Collector, you receive compensation on a 5% commission basis. You have been approached about filling an anticipated vacancy on Borough Council. Borough Council Members receive a salary of $ 125 per month. You note that on other occasions, you have been asked to fill a vacancy on Borough Council but have not accepted because you believed that such might be incompatible with your position as Tax Collector. You request an advisory from the State Ethics Commission as to whether you may simultaneously serve as Tax Collector and Borough Council Member. Discussion: As the appointed Collector of Earned Income Tax for Patton Borough and Cambria Heights School District, you are a "public official /public employee" as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act ") and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Likewise, if you would be appointed to fill the anticipated vacancy on Patton Borough Council, you would, in your capacity as a Borough Council Member, be a public official subject to the provisions of the Ethics Act. Haluska, 99 -526 March 25, 1999 Page 2 Section 1103. Restricted activities. (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§1103(a), (j). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: Section 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. Haluska, 99 -526 March 25, 1999 Page 3 65 Pa.C.S. §1102. "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 Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although no individual may simultaneously hold more than one elective borough office, 53 P.S. §45801, there does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the particular positions in question, one of which is appointive. Turning to the question of conflict of interest, pursuant to Section 1 103(a) of the Ethics Act, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily- declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. Since, in this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Patton Borough Council Member and as the appointed Collector of Earned Income Tax for Patton Borough and Cambria Heights School District, such simultaneous service would be permitted within the parameters of Sections 1 103(a) and 1 103(j). Matters before Borough Council that would involve you /your office as Borough Tax Collector would generally present conflicts of interest which would require your abstention and disclosure. You are cautioned that if you would simultaneously serve in the aforesaid positions, the following provision of the Borough Code would appear, on its face, to prohibit you from accepting compensation as the Borough Tax Collector: §46104. Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive Haluska, 99 -526 March 25, 1999 Page 4 compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. §46104 (Emphasis added). The acceptance of compensation that is not authorized in law is prohibited under Section 1103(a) of the Ethics Act. Thus, if you would simultaneously serve in the aforesaid positions, you could not accept compensation as the Collector of Earned Income Tax for Patton Borough. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. ConcluSiori: As the appointed Collector of Earned Income Tax for Patton Borough and Cambria Heights School District, you are a "public official /public employee" subject to the provisions of the Ethics Act. If you would be appointed to fill a vacancy on Patton Borough Council, you would, in your capacity as a Borough Council Member, likewise be a public official subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the appointed Collector of Earned Income Tax for Patton Borough and Cambria Heights School District and as a Patton Borough Council Member, subject to the restrictions, conditions and qualifications set forth above. If you would simultaneously serve in these positions, you could not accept compensation as the Collector of Earned. Income Tax for Patton Borough. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 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 Haluska, 99 -526 March 25, 1999 Page 5 in ?erely, 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, Vincent J. Dopko Chief Counsel