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Home My WebLink About00-512 DamskerRuth S. Damsker, Tax Collector The Township of Cheltenham 8230 Old York Road Elkins Park, PA 19027 -1589 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 10, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -512 Re: Simultaneous Service; Second Class; County; Commissioner; First Class; Township; Tax Collector. Dear Ms. Damsker: This responds to your letter of January 4, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any prohibition or restrictions upon a Tax Collector from simultaneously serving or being employed as a County Commissioner. Facts: You have recently taken office as Commissioner of Montgomery County, a Class 2 -A County ( "County "). You were previously elected Tax Collector for Cheltenham Township, a First Class Township ( "Township "). You wish to continue serving in both positions. As Tax Collector, you are paid for collecting the County taxes by a set rate per bill. If the County Commissioners raise the millage, it does not affect the amount of the payment from the County to you for the portion of the taxes that you collect. You also collect School and Township taxes in Cheltenham. You state that there is no other contractual obligation between the Tax Collector and the County. You request an advisory regarding whether you may simultaneously serve in the positions of County Commissioner and Township Tax Collector. 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. Damsker, 00 -512 February 10, 2000 Page 2 As Tax Collector for Cheltenham Township and Commissioner for Montgomery County, you are a "public official" as that term is defined in the Ethics Act and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Sections 1 103(a) and 1 103(j) of the Ethics Act provide: 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 Damsker, 00 -512 February 10, 2000 Page 3 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. 65 Pa.C.S. §1102. 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 the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. King, Opinion No. 85 -025. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1 103(a) of the Ethics Act. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the County Code must be reviewed. §402. Incompatible Offices (a) No elected county officer or county solicitor shall, at the same time, serve as a member of the legislative body of any city, borough, town or township of any class, nor as treasurer or tax collector of any city, borough, incorporated town or township, nor as school director of any school district, nor as a member of any board of health. 16 P. S. §402. The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the positions of County Commissioner and Township Tax Collector would be contrary to Section 1 103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Damsker, 00 -512 February 10, 2000 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As Tax Collector for Cheltenham Township and Commissioner for Montgomery County, you are a "public official" subject to the provisions of the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Township Tax Collector and County Commissioner. 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 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. rely, Vincent 3. Dopko Chief Counsel