HomeMy WebLinkAbout99-547 RubiniTony Rubini
Newtown Township
P.O. Box 1125
Newtown, PA 18940
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
May 10, 1999
99 -547
Re: Conflict; Public Official /Employee; Tax Collector; County; Township;
School District; Private Employment or Business; Service; Assisting
Homeowners as to Lowering Property Assessments.
Dear Mr. Rubini:
This responds to your letter of April 2, 1999 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a Tax
Collector with regard to offering a service, in his private capacity, to assist
homeowners within the County in lowering their property assessment values.
Facts: As the elected Tax Collector for Newtown Township in Bucks County,
Pennsylvania, you request an advisory from the State Ethics Commission as to
the following.
You state that you collect real estate taxes from the residents of
Newtown Township on behalf of Bucks County, Newtown Township, and the
Council Rock School District. Your pay from Bucks County and the School
District is based upon the number of tax bills you send out. You get a fixed
salary from Newtown Township.
In your private capacity, you have begun to offer a service of assisting
homeowners in Bucks County in lowering their property assessment values. You
ask whether providing this proposed service would result in a conflict with your
position as Tax Collector. You also inquire as to any procedures that should be
followed.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.ba.us • e -mail: ethics@state.pa.us
Rubini, 99 -547
May 10, 1999
Page 2
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense
to the extent the requestor has truthfully disclosed all of the material facts.
As the elected Tax Collector for Newtown Township, you are a public
official as that term is defined in the Ethics Act, and hence you are subject to
the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or
public employee shall engage in conduct that
constitutes a conflict of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act 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.
"Authority of office or employment." The
actual power provided by law, the exercise of which
Rubini, 99 -547
May 10, 1999
Page 3
65 Pa.C.S. §1102.
is necessary to the performance of duties and
responsibilities unique to a particular public office or
position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise,
association, organization, self - employed individual,
holding company, joint stock company, receivership,
trust or any legal entity organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the
person's immediate family is a director, officer,
owner, employee or has a financial interest.
In addition, Sections 1103(b) and 1 103(c) of the Ethics Act 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 judgment 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.
Section 1 103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(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
lauj2i, 99 -547
May 10, 1999
Page 4
65 Pa.C.S. §11030).
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.
In each instance of a conflict, Section 1103(j) requires the public
official /employee to abstain and to publicly disclose the abstention and reasons
for same, both orally and by filing a written memorandum to that effect with
the person recording the minutes or supervisor.
In applying the above provisions of the Ethics Law to your inquiry, you
are advised that Section 1 103(a) of the Ethics Law does not prohibit public
officials /public employees from having outside business activities or
employment; however, the public official /public employee may not use the
authority of his public position — or confidential information obtained by being
in that position — for the advancement of his own private pecuniary benefit or
that of a business with which he is associated. Pancoe, Opinion 89 -011.
Examples of conduct that would be prohibited under Section 1 103(a) would
include: (1) the pursuit of a private business opportunity in the course of public
action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as
governmental telephones, postage, staff, equipment, research materials, or
other property, or the use of governmental personnel, to conduct private
business activities, Freind, Order No. 800; Pancoe, supra; and (3) the
participation in an official capacity as to matters involving the business with
which the public official /public employee is associated in his private capacity,
such as the review /selection of its bids or proposals, Gorman, Order No. 1041.
If the private employer or business with which the public official /public
employee is associated would have a matter pending before the governmental
body, the public official /public employee would have a conflict of interest as to
such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of
interest, the public official /public employee would be required to abstain from
participation and to satisfy the disclosure requirements of Section 3(j).
Under the facts which you have submitted, Section 1 103(a) would not
preclude you from offering or providing the proposed services to homeowners,
Rubini, 99 -547
May 10, 1999
Page 5
in your private capacity, subject to the restrictions and qualifications noted
above.
The propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or
other code of conduct other than the Ethics Act has not been considered in that
they do not involve an interpretation of the Ethics Act.
Conclusion: As the elected Tax Collector for Newtown Township in
Bucks County, Pennsylvania, you are a public official subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101
et ems. Section 1 103(a) of the Ethics Act would not preclude you from offering
a service, in your private capacity, to assist homeowners within the County in
lowering their property assessment values, subject to the restrictions and
qualifications noted above. Lastly, the propriety of the proposed conduct has
only been addressed under the Ethics Act.
Pursuant to Section 1 107(1 1), 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 1. 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.
erely,
Vincent J. Kopko
Chief Counsel