HomeMy WebLinkAbout85-009 NelsonJoseph J. Nelson, Esquire
Mellon Bank North Building
Mercer, PA 16137
Dear Mr. Nelson:
I. Issue:
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
June 11, 1985
OPINION OF THE COMMISSION
85 -009
Re: Simultaneous Service, County Controller Employee, Borough Tax Collector
This responds to your letter dated March 6, 1985, wherein you requested
the advice of the State Ethics Commission. •
Whether the senior account clerk in a county controller's office may
simultaneously serve as a borough tax collector in the same county.
You have requested the advice of the State Ethics Commission on behalf of
Ms. Dorothy B. McElrath. Ms. McElrath is currently employed in the Office of
the County Controller, Mercer County. In her position as senior account clerk
she is generally responsible for recording of receipts for funds collected in
the delinquent tax office, recording of information regarding payment of
vendors for service and purchases by the county, assisting in the reconciling
and balancing of all revenues and expenditure accounts monthly and annually.
Additionally, she is involved in data entry to disburse funds collected
by the delinquent tax office. These funds are distributed to 96 taxing bodies
of Mercer County. The Checks are printed in the data processing office,
stamped with the County Commissioners' signature stamp, personally signed by
the County Controller, personally signed by the County Treasurer and mailed by
the Treasurer.
Ms. EcElrath is interested in seeking election to the office of borough
tax collector, for the Borough of Mercer. In this position she would be
responsible for collecting all taxes due from the residents of the borough
including those due the county. You ask, whether under these circumstances,
there is any conflict of interest within the purview of the State Ethics Act.
Joseph J. Nelson, Esq.
June 11, 1985
Page 2
III. Discussion:
We will assume, for the purpose of this advice, that as an employee in
the office of county controller, tis. McElrath is a public employee within the
definition of that term as set forth in the State Ethics Ac. See 65 P.S.
§401 et seq. In any event, there is no doubt that as borough tax collector,
if elected, this individual would, in fact, be a public official under the
Act. As such, her activities must conform to the requirements of the Ethics
Act as set forth more fully below. First, with relation to this individual's
candidacy for office, there is no outright prohibition under the Ethics Act
placed upon a public employee's candidacy for another public office. The Act
does provide that:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Under this provision of the Ethics Act, this public employee may not use
her current position in the controller's office to benefit her campaign for
borough office. She may not use, for example, the personnel, facilities,
etc., of the controller's office to enhance, conduct or otherwise support her
campaign. See Cessar, 82 -002.
A more difficult question is presented with respect to the issue of
whether this individual may simultaneously serve in both positions.
Generally, the Ethics Act places no per se prohibition upon a public
employee's dual employment. The State Ethics Commission may, however, address
this issue under its power to review possible conflicts of interest as they
arise. See 65 P.S. §403(d). In such situations, the Commission must look to
the particular facts of a case in order to determine if there is an inherent
or actual incompatibility. The conduct of a public official o.• employee may
and should not present a conflict of interest or the appearance thereof. That
is, one may not serve or appear to serve two or more competing interests. See
No. 80 -007, Alfano.
As borough tax collector this individual would be generally responsible
for the collection of all state, county, borough, school, institution,
district, and other taxes, levied within the borough by the authorities
empowered to levy taxes. 53 P.S. §46086. You have indicated that in this
respect the Mercer Borough tax collector would collect the per capita, real
estate, and personal property taxes for the county,
Joseph J. Nelson, Esq.
June 11, 1985
Page 3
On the other hand, the Controller has the primary function of:
General supervision and control of the fiscal affairs
of the county and of the accounts and official acts of all
officers or other persons who shall collect, receive or
distribute the public moneys of the county, or who shall
be charged with the management or custody thereof. He may
at any time require from any of then, in writing, an
account of all moneys or property which may have come into
their control. He shall immediately on the discovery of
any default or delinquency, report the same to the
commissioners and the court of common pleas of the county,
and shall take immediate measures to secure the public
moneys or property and remove the delinquent party, if in
office, and not removed by the commissioners. (emphasis
added) 16 P.S. §4901.
While you indicate that in her position as senior account clerk, Ms.
McElrath performs no duties in relation to the borough taxes, a number of
concerns arise in this situation.
First, in her position in the controller's office, this individual has
access not only to information, but also to personnel who may benefit her as
borough tax collector. While we are not here implying any potential or
inappropriate utilization of this information, it may appear as though a
conflict exists.
Secondly, the controller is directly responsible for the proper
accounting of funds due the county. In this respect, the controller has
statutory authority to call upon the local tax collector for an accounting and
to initiate appropriate action, when necessary, to recover all funds due the
county as well as for the removal from office of any de1 party. The
controller has control of the accounts and acts of all officers who collect or
receive county funds. This control would include audit responsibilities. In
(order to accomplish these functions, the controller employs a number of
individuals in the controller's office. As a public employee in this office,
Ms. McElrath owes a duty to the controller to assist in these functions.
As tax collector, this individual would be subject to review by her
current employer (the controller), in relation to her functions as a borough
official.
Additionally, the borough tax collector receives compensation in the form
of a percentage of the taxes levied and collected, and the controller's office
performs some functions relating to disbursing this compensation. In this
respect, her current employer and co- workers may be called upon to make
decisions that affect her compensation as a borough official. We have also
been informed that the controller's office performs a check and balance
Joseph J. Nelson, Esq.
June 11, 1985
Page 4
function through the utilization of pa;,' sheets. in this respect, the
controller my track the payment of county taxes paid by residents and compare
this to funds 7eceived from the local tax collector.
A review of the totality of circumstances herein present leads us to the
conclusion tat an inc:i';idua; may not simultaneously serve as a san;yr account
cerk employee in the office of the county controller and as a borough tax
collector in the same county. These positions present an inherent
incompatibility.
A
l" Conclusion:
�
The Ethics Act prohibits, pursuant to section 403(d), and the Ethics
Co mmission may, therefore, address areas involving possible conflicts of
interests. Such conflicts arise and exist, in part, where an individual
;eaves or attempts to serve one or more competing interests. A review of the
circumstances herein present, indicated that there is an inherent
ncompatibility and resulting conflict if an individual serves as an employee
in the office of county controller at the same time that person serves as a
borough tax collector in the same county.
The State Ethics Act does not prohibit this individual's candidacy for
office as outlined above.
Pursuant to Section 7(9)(i), this opinion is a complete defense in any
eJforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance of the advice given.
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting reconside-
ration should present a detailed explanation setting forth the reasons why the
olinfon requires reconsideration.
JJC /sfb
By the Commission,
Dr. Leon L. i!aley
Vice - Chairman