HomeMy WebLinkAbout919 TheeIn Re: Nicholas Thee
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 93- 036 -C2
: Date Decided: 02/17/94
Date Mailed: 02/24/94
Before: James M. Howley, Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Joseph W. Marshall, III
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S.
5401 et seg. Written notice, of the specific allegation(s) was
served at the commencement of the investigation. A Findings Report
was issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was waived. A consent agreement was
submitted by the parties to the Commission for consideration which
was subsequently approved. This adjudication of the Commission is
hereby issued which sets forth the individual Allegations, Findings
of Fact, Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by.the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
521.29(b).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. 5408(h) during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law.
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000
or imprisonment for not more than one year, 65 P.S. 5409(e).
Thee, Nicholas, 93- 036 -C2
Page 2
I. ALLEGATION:
That, Nicholas Thee, Tax Collector for Lansdale Borough,
Montgomery County, violated provisions of the State Ethics Act (Act
9 of 1989) when he charged a tax certification fee without
ordinance approving the collection of said fees.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
S403(a).
II. FINDINGS:
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. 65 P.S. 5402.
1. Nicholas Thee has served as the Borough of Lansdale Tax
Collector from January of 1986 to the present.
2. Thee served on the Lansdale Borough Council from 1966 to 1974
and held the position of Constable from 1975 to 1985.
3. Thee's duties as Tax Collector include collecting taxes for
the Borough, the County, and the School District.
4. Thee's compensation as tax collector for collection of the
Borough's taxes is fixed by Borough Council.
Thee, Nicholas, 93- 036 -C2
Page 3
a. The school district pays Thee a fee for each tax bill he
collects.
(1) There is a cap on the total amount Thee may be
compensated by the sohool district.
b. The county pays Thee a flat rate for the collection of
county taxes.
5. Thee provides residents of the Borough with information about
taxes on their properties at no charge.
6. Various businesses, including abstract companies, realtors,
banks and attorneys, request a certified document stating the
taxes have been paid on a certain property.
7. Tax certifications are generally requested in order to prove
that all taxes due on real property have been paid.
a. An official tax certification can only be obtained from
the authority or the tax collector.
8. Thee is not required by law to provide the information.
9. Thee has provided tax certifications to the companies since
taking office for a fee of $15.00 per certification.
a. The practice of the tax collector receiving a Fifteen
($15.00) Dollar per certification fee has existed in the
Borough of Lansdale for at ,least twenty (20) years prior
to January of 1986.
10. The two previous Borough tax collectors also provided tax
certifications for a fee.
a. The fee collected by the two previous tax collectors was
the same as that collected by Thee.
11. Thee estimates the cost of researching the information,
preparing the document, stationery, and stamps at $7.50 to
$9.00 per certification.
12. Thee himself does most of the work to process the
certification.
13. Thee's daughter assists him on occasion, but is not paid a
salary.
14. Thee keeps the money, in excess of his expenses, as
compensation for his work.
Thee, Nicholas, 93- 036 -C2
Page 4
15. Prior to March of 1993, Lansdale Borough Council had not
passed an ordinance establishing a tax certification fee.
16. On April 4, 1993, Lansdale Borough Council, passed Borough
Ordinance #1497 authorizing the Tax Collector to charge a fee
of $15.00, for preparing and providing a real estate tax
certification, which would be retained by the Tax Collector
for providing such services.
17. Thee obtains "the information provided on the tax certification
documents from the official records in his possession as Tax
Collector.
18. Thee provided the information on a form which contained the
letterhead "Tax Certification, Borough of Lansdale" and
contained the signature of "Nicholas Thee, Tax Collector ".
19. Documents of the office of tax collector for Lansdale Borough
indicate the fees collected by Thee for the issuance of the
following tax certification from 1988:
Date Name Stamped Paid Amount
02/03/88 Fidelity Abstract Yes $ 15.00
03/09/88 D. Novatnak No $ 15.00
04/07/88 Fox and Lazzo No $ 15.00
04/20/88 Ticor Title Ins No $ 15.00
05/11/88 Security Abstract No $ 15.00
05/27/88 Security Abstract No $ 15.00
07/06/88 Security Abstract No $ 15.00
10/04/88 Stevens - Korkus Realtors No $ 15.00
10/17/88 North Penn Abstract No $ 15.00
10/21/88 R. Moyer & E. Blythe No $ 15.00
11/14/88 John L. Hendricks Auction No $ 15.00
12/19/88 North Penn Abstract No $ 15.00
12/29/88 Re /Max Central Inc. Yes $ 15.00
12/30/88 North Penn Abstract Yes $ 15.00
01/04/89 Drake, Hileman & Davis Yes $ 15.00
01/09/89 Evans Abstract Yes $ 15.00
01/10/89 Dischell, Bartle, Yanoff Yes $ 15.00
01/16/89 Industrial Valley Title Yes $ 15.00
02/15/89 Frank Bartle No $ 15.00
02/15/89 Evans Abstract No $ 15.00
06/09/89 Miller, Shore & Guerra No $ 15.00
06/16/89 Frankford Abstract Yes $ 15.00
07/08/89 Evans Abstract Yes $ 15.00
07/21/89 Evans Abstract Yes $ 15.00
08/05/89 North Penn Abstract Yes $ 15.00
08/23/89 Century 21 Messa Yes $ 15.00
08/23/89 North Penn Abstract No $ 15.00
09/07/89 North Penn Abstract Yes $ 15.00
09/15/89 Evans Abstract Yes $ 15.00
Thee, Nicholas, 93- 036 -C2
Page 5
09/15/89
09/18/89
09/18/89
09/19/89
09/19/89
09/19/89
09/20/89
09/20/89
09/25/89
10/04/89
10/05/89
10/09/89
10/09/89
.10/09/89
10/16/89
10/16/89
10/16/89
10/16/89
10/16/89
10/23/89
10/31/89
11/02/89
ii/08/89
11/08/89
11/09/89
11/09/89
11/09/89
11/09/89
11/09/89
11/09/89
11/13/89
11/16/89
11/16/89
11/17/89
11/17/89
11/20/89
11/20/89
11/20/89
11/28/89
12/01/89
12/04/89
12/04/89
12/07/89
12/07/89
12/13/89
12/13/89
12/13/89
12/13/89
12/15/89
12/19/89
06/15/90
Evans Abstract
RE /MAX Central
North Penn Abstract
Blank
Cassels ERA
Schoelkope & Mullaney
Grosse & Quade
North Penn Abstract
North Penn Abstract
Surburban Home
Ken Kratz Realtors
North Penn Abstract
North Penn Abstract
Ken Kratz Realtors
Southeastern- Abstract
Century 21 Grosse & Quade
Ken Kratz Realtors
North Penn Abstract
North Penn Abstract
Security Abstract
Superior Abstract
Holland Abstract
Grim, Riehn, Thatcher & Wolf
Souder, Rosenberger, Lapp
Dischell, Bartle, Yanoff
T.A. Title
Security Abstract
North Penn Abstract
Ken Kratz Realtors
Security Abstract
Tohickon Abstract
Fidelity Abstract
Evans Abstract
North Penn Abstract
Evans Abstract
North Penn Abstract
Cassel's ERA_
Realty Corp.
Nancy DelVecchio
Collins & Slotter Realty
North Penn Abstract
Security Abstract
North Penn. Abstract
North Penn Abstract
Evans Abstract
Doylestown Abstract
Century 21 Messa
Evans Abstract
North Penn Abstract
North Penn Abstract
Evans Abstract
No $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.80
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.Q9
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
No $ 15.00
No $ 15.00
Yes $ 15.00
Thee, Nicholas, 93- 036 -C2
Page 6
06/15/90 Ken Kratz Yes $ 15.00
06/21/90 Tohickon Abstract Yes $ 15.00
06/22/90 Ken Kratz Yes $ 15.00
06/22/90 Ken Kratz Yes $ 15.00
06/25/90 Evans Abstract Yes $ 15.00
06/25/90 Evans Abstract No $ 15.00
06/25/90 Wm. Emmerick In. Yes $ 15.00
06/25/90 North Penn Abstract Yes $ 15.00
07/02/90 Century 21 Messa Yes $ 15.00
07/02/90 Century 21 Messa Yes $ 15.00
07/02/90 Daily's Associates LTD Yes $ 15.00
07/02/90 ReMax Yes $ 15.00
07/05/90 TA Title Yes $ 15.00
07/05/90 Ken Kratz No $ 15.00
07/06/90 Ken Kratz Yes $ 15.00
07/06/90 Metes & Bounds Inc. Yes $ 15.00
07/09/90 Evans Abstract Yes $ 15.00
07/13/90 Security Abstract Yes $ 15.00
07/13/90 Cross County Abstract Yes $ 15.00
07/13/90 Neshaminy Abstract Yes $ 15.00
07/13/90 The Prudential Yes $ 15.00
07/16/90 Evans Abstract Yes $ 15.00
07/18/90 Security Abstract Yes $ 15.00
07/19/90 ReMax Action Realty ' Yes $ 15.00
07/19/90 Sanford Alderfer Yes $ 15.00
07/20/90 North Penn Abstract Yes $ 15.00
12/27/90 Fidelity Abstract Yes $ 15.00
01/04/91 Security Abstract Yes $ 15.00
01/10/91 North Penn Abstract Yes $ 15.00
01117/91 Broker's Abstract Yes $ 15.00
01/17/91 Security Abstract Yes $. 15.00
01/28/91 Security Abstract Yes $ 15.00
01/28/91 Security Abstract Yes $ 15.00
01/31/91 North Penn Abstract Yes $ 15.00
02/08/91 Quaker Abstract Yes $ 15.00
02/11/91 Evans Abstract Yes $ 15.00
02/23/91 TA Title Yes $ 15.00
03/15/91 Security Abstract Yes $ 15.00
03/18/91 Pearistine Salkin Assoc. Yes $ 15.00
03/21/91 Daily's Assoc. Yes $ 15.00
03/28/91 The Prudential Yes $ 15.00
03/28/91 Industrial Valley Title Yes $ 15.00
03/28/91 Grim, Biehn, Thatcher & Help Yes $ 15.00
03/28/91 North Penn Abstract Yes $ 15.00
04/05/91 Security Abstract Yes $ 15.00
04/05/91 Security Abstract Yes $ 15.00
04/16/91 Broker's Abstract No $ 15.00
04/18/91 Evans Abstract Yes $ 15.00
04/18/91 North Penn Abstract Yes $ 15.00
04/19/91 Dally's Assoc. No $ 15.00
05/02/91 Security Abstract Yes $ 15.00
Thee, Nicholas, 93- 036 -C2
Page 7
05/02/91 North Penn Abstract Yee $ 15.00
05/02/91 Frank Bartle Yes $ 15.00
05/02/91 Frank Bartle Yes $ 15.00
05/03/91 Security Abstract Yes $ 15.00
05/13/91 Security Abstract Yes $ 15.00
05/14/91 Frank Bartle Yes $ 15.00
05/16/91 Cassel's ERA Yes $ 15.00
05/20/91 North Penn Abstract Yes $ 15.00
06/04/91 Security Abstract Yes $ 15.00
06/07/91 North Penn Abstract No $ 15.00
06/07/91 Century 21 Grosse.& Quade Yes $ 15.00
06/10/91 North Penn Abstract Yes $ 15.00
06/11/91 North Penn Abstract Yes $ 15.00
06/17/91? Evans Abstract Yes $ 15.00
.07/01/91- Assurance Abstract Yes 15.00
07/09/91 Paona Realty No $ 15.00
07/18/91 Re /Max Heritage Realty Yes $ 15.00
07/18/91 North Penn Abstract 'Yes $ 15.00
07/18/91 Re /Max Heritage Realty Yes $ 15.00
07/22/91 North Penn Abstract Yes $ 15.00
07/24/91 North Penn Abstract Yes $ 15.00
07/26/91 North Penn Abstract Yes $ 15.00
08/01/91 Evans Abstract Yes $ 15.00
08/02/91: Security Abstract Yes $ 15.00
08/02/91 Security Abstract Yes $ 15.00
08/06/91 Paone Realty No $ 15.00
08/06/91 North Penn Abstract Yes $ 15.00
08/09/91 Evans Abstract Yes $ 15.00
08/15/91 Evans Abstract Yes $ 15.00
08/26/917 Evans Abstract Yes $ 15.00
09/06/91 Security Abstract Yes $ 15.00
09/06/91 Security Abstract Yes $ 15.00
09/06/91 Security Abstract Yes $ 15.00
01/05/92 Cardinal Abstract Yes $ 15.00
03/13/92 North Penn Abstract Yes $ 15.00
04/09/92 Ken Kratz Realtors Yes $ 15.00
01/05/93 Guaranteed Abstract No $ 15.00
01/06/93 West Ridge Abstract No $ 15.00
01/08/93 North Penn Abstract . Yes $ 15.00
01/08/93 Dager & Dager Realtors Yes $ 15.00
01/08/93 Fidelity Abstract Yes $ 15.00
01/08/93 Security Abstract Yes $ 15.00
01/12/93 Re /Max Heritage Realty Yes $ 15.00
01/12/93 Evans Abstract Yes $ 15.00
01/12/93 Coldwell Banker Yes $ 15.00
01/15/93 Reeves C. Miller Yes $ 15.00
01/15/93 North Penn Abstract Yes $ 15.00
01/15/93 North Penn Abstract Yes $ 15.00
01/21/93 Grosse & Quade Yes $ 15.00
01/21/93 North Penn Abstract Yes $ 15.00
01/21/93 Pat Hoban Yes $ 15.00
Thee, Nicholas, 93- 036 -C2
Page 8
01/21/93
01/25/93
01/25/93
01/28/93
01/28/93
01/28/93
01/28/93
01/28/93
01/29/93
02/01/93
02/04/93
02/04/93
02/04/93
02/04/93
02/08/93
02/08/93
02/09/93
02/09/93
02/11/93
02/11/93
02/11/93
02/16193
02/16%•93
02/18/93
02/18/93
02/18/93
02/18/93
02/18/93
02/23/93
03/01/93
03/01/93
03/01/93
03/02/93
03/04/93
03/04/93
03/05/93
03/07/93
03/11/93
03/16/93
1988 3 1-1'
1989 51 14
1990 26 2
1991 52 5
1992 3
1993 48 6
West Ridge Abstract
North Penn Abstract
North Penn Abstract
Dallys Associates
Century 21 Messa
Real Estate Service Group
North Penn Abstract
Century 21 Messa
TA Title
North Penn Abstract
Evans Abstract .
North Penn Abstract
Mullaney Law Offices
North'Penn Abstract
North Penn Abstract
Grosse & Quade Century 21
Tri- County Abstract
Carl Keyser
Pro - Search Inc.
Grosse & Quade
Americor Abstract
Security Search & Abstract
Security Search & Abstract
Laurel Abstract
Titan Abstract
Brode & Brocks
Hambukg Rubin,Mullin & Maxwel
North Penn Abstract
North Penn Abstract
Neshaminy Abstract
Metropolitan Abstract
Dallys Associates
Cardinal Abstract
Neshaminy Abstract
Quaker Abstract
Signature Agency
Neshaminy Abstract
Savings Abstract
Evans Abstract
20. The total profits for issuance of tax cert
records indicated that said fee was paid
Year Pd /Not Pd /Total Billed Received
14 $ 210.00 $ 45.00 $ 126.00
65 $ 975.00 $ 765.00 $ 585.00
27 $ 420.00 $ 390.00 $ 252.00
57 $ 855.00 $ 780.00 $ 513.00
3 $ . 45.00 $ 45.00 •$ • 27.00
54 $ 810.00 $ 720.00 $ 486.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $- 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes - $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
Yes $ 15.00
Yes $ 15.00
No $ 15.00
ifications where the
were as follows:
Processing Net Profit*
$(81.00)
$180.00
$138.00
$257.00
'$ 18.00
$234.00
Thee, Nicholas, 93- 036 -C2
Page 9
Totals 183 38 221 $3315.00 $2745.00 $1989.00 $756.00
* Profit was based on a $6.0 net profit per certification and
$9.00 figure to process said certifications.
21. The foregoing calculations are based upon the records of the
office of the tax collector.
a. The net profit takes into account the $9.00 processing
costs where no fee was paid.
22. Records on file at Security ,Abstract, Worcester Trade Center,
1741 Valley Forge Road, Worcester, PA - 19490, indicate the
following payments were made to Lansdale Borough Tax Collector
Nicholas Thee:
Date Address of Property Check # Check Date Mart
366 Mount Vernon Street 58586 05/31/88 $ 15.00
832 W. Fourth Street 58762 06/15/88 $ 15.00
05/11/88
05/27/88
23. Records on file at Evans Abstract, 608 W. Main Street,
Lansdale, PA 19446, indicate the following payments were made
to Lansdale Borough Tax Collector Nicholas Thee:
Date
02/15/89
11/17/89
12/13/89
06/25/90
03/16/93
Date
a. These items were not stamped as paid in the records of
the tax collector.
a .
Address of Property
16 W. Third Street
631 Salem Drive
499 Wade Street
162 E. Main Street
635 Franklin Street
10/17/88 731 W. Third Street
12/19/88 949 Wedgewood Street
08/23/89 West Eight Street
Check # Check Date
27036
42302
.43624
53691
06823
02/28/89
12/01/89
12/29/89
07/05/90
04/21/93
Mart
$ 15.00
$ 15.03
$ 15.03
$ 15.00
$ 15.00
These items were - stamped as paid in the records of the
tax collector.
24. Records on file at Worth Penn Abstract, 35 Green Street,
Lansdale, PA 19446, indicate the following payments were made
to Lansdale Borough Tax Collector Nicholas Thee:
Address of Property Check # Check Date Imre
34480 12/28/88 $ 15.00
35405 12/30/88 $ 15.00
43410 08/31/89 $ 15.E
Thee, Nicholas, 93- 036 -C2
Page 10
12/07/89
12/15/89
12/19/89
06/07/91
640 Jackson Street 48299 12/15/89
324 W. Fifth Street 47588 12/27/89
327 Mount Vernon Street 48280 12/19/89
526 E. Hancock Street 61520 06/12/91
$ 15.00
$ 15.00
$ 15.00
$ 15.00
a. These items were stamped as paid in the records of the
tax collector.
25. None of the payments noted in Findings 23 -25 above were
recorded in the records of the tax collector.
26. The total profits realized by Thee for the issuance of the
certification as evidence by the records of the tax collector
and abstract companies were as follows:
Year Pd /Not Pd /Total Billed Received Processing Net Profit*
1988 7 7 14 $ 210.00 $ 105.00 $ 126.00 $(
1989 58 7 65 $ 975.00 $ 870.00 $ 585.00 $285.00
1990 27 1 28 $ 420.00 $ 405.00 $ 252.00 $152.00
1991 53 4 57 $ 855.00 $ 795.00 $ 513.00 $282.00
1992 3 3 $ 45.00 $ 45.00 $ 27.00 $ 18.00
1993 49 5 54 $ 810.00 $ 735.00 $ 486.00 $249.00
Totals 197 24 221 $3315.00 $2745.00 $1989.00 $966.00
* Profits were based upon the $6.00 figure.
27. Nicholas Thee did not file State EthicS Commission Statements
of Financial Interests for the years 1989, 1990, and 1991.
a. Thee did not realize that financial interest statements
needed to be filed for the years 1989, 1990, and 1991.
28. Nicholas Thee did not intend to accept any compensation to
which he -was not entitled.
a. Thee. was following the practice of past Tax Collectors.
29. Thee did not intend to violate the State Ethics Law.
III. DISCUSSION:
As a Tax Collector for Lansdale Borough, Nicholas Thee,
hereinafter Thee, is a public official as that term is defined
under Act 9 of 1989. 65 P.S. S402. As such, his conduct is
subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
Thee, Nicholas, 93- 036 -C2
Page 11
This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of_Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
We must decide whether Thee violated Section 3(a) of Act 9 of
1989 as to the allegation that he charged tax certification fees
without ordinance approving such collection.
Thee served as the Lansdale Borough Tax Collector from January
1986 to the present with duties consisting of tax collection for
the borough, county and school district. As to the three taxing
bodies, the borough council fixed Thee's compensation as a tax
collector for the borough, the school district paid Thee a fee for
each tax bill collected with a cap on the total amount of
compensation and the county paid Thee a flat fee for the collection
of county taxes.
Although Thee does provide residents of the borough with
information about taxes on their properties without charge, there
is a tax certification fee for businesses, abstract companies,
realtors, banks and attorneys who request a certified document
stating that taxes have been paid as to a certain property. The
tax certification may only be obtained from the tax collector who
is not required by law to provide such information.
Thee has provided the tax certifications during his term of
Tax Collector at a charge of $15.00 per certification which is a
continuation of the practice of tax certification fees charged by
the previous two tax collectors.
Although the gross amount received per tax certification by
Thee amounts to $15.00, the cost of researching the information and
preparing the document with stationery and stamps amounts to
approximately $7.50 to $9.00 per certification. Thee himself does
most of the work to process the certifications and keeps the net
Thee, Nicholas, 93- 036 -C2
Page 12
profit as compensation for his work.
There was no borough ordinance in place establishing a tax
certification fee until April 4, 1993 when the Lansdale Borough
Council passed Ordinance #1497 which authorized the Tax Collector
to charge a fee of $15.00 for such services.
A review of the records of Thee as well as certain abstract
companies reflect that the total amount of net profit received by
Thee for tax certifications for the years 1988 through 1993
amounted to $966.00. Fact Finding 26.
Lastly, Thee- did not file Financial Interest Statements
(FIS's) for the calendar years 1989 through 1991.
In applying the provisions of Section 3(a) of Act 9 of 1989 to
the above facts, we must "determine whether there was use of office
on the part of Thee to obtain a private pecuniary benefit for
himself as to the fees he collected for tax certifications. It is
clear that there was a use of authority of office on the part of
Thee in that he, by virtue of his position of elected Tax
Collector, was able to exact these fees for tax certifications.
Juliante, Order 809. The tax certification fees went to Thee
himself and hence the fees were a pecuniary benefit. However, the
question before us is whether the pecuniary benefit received by
Thee was private. In order to make that determination, we must
review both statutory and decisional law on this issue.
The Local Tax Collection Law of 1945, P.L. 1050, Section 35,
as amended, 72 P.S. 5511.35:
"The tax collector in boroughs and townships of the
second class shall receive, as compensation for the
collection of county, institution district, borough and
township taxes, salary, wages or a commission on all such
taxes to be fixed by the respective taxing authorities
levying such taxes, not exceeding five per centum of the
amount collected. In the case of school district taxes,
the commission or compensation of the tax collector shall
be determined by the board of school directors, and the
total cost of such collection shall be reported, annually
to the Superintendent of Public Instruction, and shall be
published in his report.
For the collection of county, institution district,
school district, borough and township taxes, the tax
collector shall be allowed by the respective taxing
authorities, actual and needful expenditures for
printing, postage, books, blanks and forms."
The above provision of law does allow compensation to a tax
Thee, Nicholas, 93- 036 -C2
Page 13
collector consisting of a percentage commission collected plus
certain allowed expenditures. Nowhere does the law allow for
charging for tax certifications. Unless tax certification fees are
provided for by law, a tax collector may not receive such a
fihancial gain.
The concept that a tax collector may only receive compensation
which is legislatively provided is well rooted in decisional law.
See.Rachael v. Forest Hills School District, 94 Pa. Commw. Ct. 130,
503 A.2d 472 1986:
"...the right of a tax collector to receive the
compensation annexed to his office is legislative, not
contractual. Tarner v. Chambersburg Borough School
District, 338 Pa. 417, 12 A.2d 106 (1940) . 4 Further, this
Court has stated, in dealing with a state statute, that
when a provision can be interpreted to benefit either a
private party or the Commonwealth, it must be presumed
that the legislature intended to favor the public
interest." Id. at 476.
A tax collector may not charge any fee unless it is
specifically provided for by law. In Brown v. LeSuer 149 Pa.
Super. 192, 27 A.2d (1942), the mortgage holder of certain realty
sought to pay the liens, including a 5% penalty, to prevent
foreclosure. When the tax collector refused to accept the payment
unless an additional 5% fee was paid to her as her commission, such
payment was made under protest followed by a civil action to
recover the 5% fee. The trial court found in favor of the
mortgagee and the tax collector appealed. The Superior Court
affirmed, holding that the tax collector had no authority to charge
such a fee due to the lack of statutory authority:
"It is well settled that one who demands payment of
a tax must show statutory authority for the imposition
and collection of the tax: Central Penna Lumber Co.'s
APR-, 232 Pa. 191, 193, 81 A,204; Schmuck v. Hartman, 222
Pa. 191, 195, 70 A. 1091; and the principle applies
equally well to one who seeks to collect a fee,
commission or charge from the taxpayer for his services
in effecting the collection` of a tax lawfully imposed.
Unless statutory authority for the collection of such
fee, commission or charge from the taxpayer is shown 'he
cannot be required to pay it: Com. v. Scott, 88 Pa.
Superior Ct. 68, 71, reversed on another point in 287 Pa.
302, 135 A.225. A practice, even though long
established, of collecting such unauthorized fee,
commission or charge will not make it legal: Lawrence
County v. Horner, 281 Pa. 336, 342, 126 A.783." Id. at
195, 196.
Thee, Nicholas, 93- 036 -C2
Page 14
Therefore based upon the above it is clear that the pecuniary
benefit received by Thee was private and hence violative of Section
3(a) of Act 9 of 1989.
We note that our decision in this case follows our prior
precedent in.Al.len, Order 612 -R, wherein we determined that a tax
collector violated Section 3(a) of Act 170 of 1978 when he received
tax certifications which were not authorized in law so as to be a
financial gain other than compensation provided for by law.
Given the facts that Thee followed the prior practice of the
previous two tax collectors and did not intend to violate the
Ethics Law, we therefore find, giving due consideration to all
facts and circumstances of this case, a technical violation by Thee
in charging for tax certifications.
Section 7 (13 )_of the Ethics Law, 65 P.S. 407 (13) empowers this
Commission to impose restitution upon a public official /employee
who has obtained a financial gain in violation of the Ethics Law.
Thee is directed within thirty (30) days of the date of
issuance of this order to make payment through this Commission to
Lansdale Borough in the amount of $966.00. We also direct Thee
within thirty (30) days of the date of issuance of this Order to
file FIS's for the 1989 through 1991 years. Failure by Thee to
either make repayment of the $966.00 to Lansdale Borough or to file
the FIS's as noted above will result in a directive of this
Commission to institute an order enforcement action in Commonwealth
court. Compliance with the foregoing will result in the closing of
this case with no further action by this Commission.
IV. CONCLUSIONS OF LAW:
1. Nicholas Thee as the Lansdale Borough Tax Collector is a
public official subject to the provisions of Act 9 of 1989.
2. A technical violation of Section 3(a) of Act 9 of 1989
occurred when Thee used the authority of office to obtain a
private pecuniary benefit for himself consisting of tax
certification fees which were not authorized in law.
3. The private pecuniary benefit received by Thee amounted to
$966.00.
In Re: Nicholas Thee
File Docket: 93- 036 -C2
Date Decided: 02/17/94
Date Mailed: 02/24/94
ORDER NO. 919,
1. A technical violation of Section 3(a) of Act 9 of 1989
occurred when Nicholas Thee as the Lansdale Borough Tax
Collector used the authority of office to obtain a private
pecuniary benefit of $966.00 for himself consisting of tax
certification fees which were not authorized in law.
2. Thee is directed within thirty (30) days of the date of
issuance of this order to make restitution in the amount of
$966.00 through this Commission to Lansdale Borough.
3. Thee is directed within thirty (30) days of issuance of this
order to file Financial Interest Statements for the years 1989
through 1991.
4. Failure to comply with the provisions of paragraphs 2 and 3
above will result in a directive of this Commission to
institute an order enforcement action.
BY THE COMMISSION,
' JAMES M. HOWLE , IR