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HomeMy WebLinkAbout86-004 JohnsonDear Mr. Johnson: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 20, 1986 OPINION OF THE COMMISSION Horace A. Johnson, Esquire 86_004 3rd & Market Streets P.O. Box 109 Lemoyne, PA 17043 -0109 Re: Simultaneous Service, Borough Tax Collector; Borough Treasurer This responds to your request of April 29, 1986, wherein you sought the opinion of the State Ethics Commission. Whether the same individual may simultaneously serve as borough tax collector and borough treasurer. You serve as Solicitor for the Borough of Lemoyne. In this capacity, you have requested the cpinion of the State Ethics Commission involving a question regarding a potential conflict of interest. You have noted that the Borough Code generally provides that an elected or appointed borough official may not hold two borough offices if such offices are incompatible in fact. The Borough Code provides no additional guidance in relation to which offices are, in fact, incompatihle. You have, therefore, requested the opinion of the State Ethics Commission as to whether a single individual may simultaneously hold the offices of borough tax collector, an elected position and the office of borough treasurer, an appointed position. You note that with one individual holding both offices, all duties of collection, recording, reporting and disbursement of public monies are in the control of a single individual. Horace A. Johnson, Esquire June 20, 1986 Page 2 III. Discussion: Both the position of borough tax collector and borough treasurer would be public officials within the purvi ew of that definition as set forth i n the State Ethics Act. 65 P.S. §402 et. seq. As such, this Commission is authorized to issue an opinion regarding the duties and responsibilities of the individuals who serve in such positions. Nelson, 85 -009; Domalakes, 85 -010. Initially it is noted, that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. This Commission does not specifically have the statutory jurisdiction to interpret the provisions of the Borough Coder If, however, another provision of law somehow impacts upon the provisions of the State Ethics Act or the Ethics Act accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See, Bigler, 85 -020. Generally, only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible as a matter of public policy. See, Cresent Township v. Cresent South Heights Municipal Authority, 11 D & C 3d 705, (1977, Affirmed per curiam, 428 Pa. 170, 1978). In the instant situation, the General Assembly has declared its public policy in relation to borough officials when it determined that an elected or appointed borough official may hold other positions within the borough unless there is an incompatibility, in fact. The actual determination as to what offices are incompatible has been left to other authorities. The General Assembly, through the promulgation of the Ethics Act and the establishment of the State Ethics Commission, has accorded to this agency the general authority to review conflicts of interest. When read with the Borough Code, we believe that this Commission is authorized to issue an opinion, at least in the instant situation, as to whether simultaneous service in these specific public offices creates an, in fact, incompatibility which presents a general conflict of interest. The State Ethics Act provides as follows: 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 law, a public official may not use his position or any confidential information obtained in that position in order to obtain a financial gain for himself other than the compensation provided for by law. In the instant situation, we assume that the borough tax collector has no role in appointing the individual who serves as the borough treasurer and, Horace A. Johnson, Esquire June 20, 1986 Page 3 therefore, technically, an individual who simultaneously serves in both positions would not he appointing himself to such a position and would, therefore, not he using his puhlic office to obtain a financial gain other than the compensation provided for hy law. In addition to the foregoing provision of law, however, the State Ethics Commission may address other areas of possible conflicts of interests. 65 P.S. 6403(d). The parameters of the types of activities encompassed by this provision of law may generally he determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of puhlic officials do not conflict with the puhlic trust. As such, this Commission has previously determined that such a conflict would arise when a public official attempts to serve one or more interests that are adverse. See, Alfano, 80 -007; Fritzinger, 80 -008. Within the ahove provision of law, this Commission has previously addressed questions regarding the simultaneous service by one individual in incompatible positions. See, Nelson, 85 -009. We believe that under the foregoing provision of law, we may address the question presented in the instant situation within the purview of the State Ethics Act. The tax collector of a borough is an elected office and serves a term of four years. 53 P.S. 645861. The Rorough Code generally sets forth the statutory powers and duties of the tax collector which provides as follows: Powers and duties of tax collector The tax collector shall he the collector of all State, county, borough, school, institution district and other taxes, levied within the borough hy the authorities empowered to levy taxes, hut he shall not collect any tax levied and imposed under the act of December 31, 1965 (P.L. 1257) unless the ordinance imposing such tax shall provide that he shall he the collector of the said tax. He shall, in - addition to the powers, authority, duties and responsibilities provided for by this act, have all the powers, perform all the duties, and he suhject to all the obligations and responsibilities, for the collection of such taxes, as are now vested in, conferred upon, or imposed upon tax collectors hy law. 53 P.S. 646086 In addition to the foregoing, the Local Tax Collection Law provides as follows: The collector shall pay over on or hefore the tenth day of each month, or oftener, if required by ordinance or resolution of the taxing district, to the treasurer of the taxing district all moneys collected as taxes during the previous month or period and take his receipt for the same. Horace A. Johnson, Esqui re June 20, 1986 Page 4 The tax collector shall, at any time on demand of any taxing district, exhibit any duplicate in his possession showi ng the uncollected taxes as of any date. 72 P.S. §5511.25 The borough treasurer, on the other hand, is appointed by the members of the borough council. 53 P.S. §46005(1). The Borough Code specifically outlines the powers and duties of the borough treasurer and provides, in part, as follows: He shall keep a just account or all receipts and disbursements, and shall annually submit his account to the borough auditors or controller; he shall pay over all moneys remaining in his hands and deliver all books, papers, accounts, and other things belonging to the borough, to his successor. All moneys received by any officer, or other person, for the use of the borough shall be forthwith paid to the borough treasurer. He shall deposit al 1 moneys received by him i n a bank or banking institution i n the name of the borough. All expenditures shall be paid out of funds in the treasury only when authorized by the treasurer, upon an order signed by the president of council and the borough secretary and also by the borough controller, if any. Such order shall not be executed unless there is money in the treasury available therefor. Generally, an individual who serves as treasurer is considered the chief fiscal officer of the municipality of which he serves. He generally has the right to legal possession of specific monies due to the municipality from whatever source and he holds such monies as the property of and exclusively for the municipality. 62 C.J.S. §697; Lackawanna Township v. George Blackwell, 4 Lanc. L.R. 330, (1887); Commonwealth of Pennsylvania ex. rel. Lewis v. ZawodniaK, 26 Luzerne Reporter 369, (1931). The tax collector, on the other hand, generally is only authorized to collect that money which is due to the municipality as a result of taxes levied by the governing authority. These funds, as noted in the Local Tax Collection Law, must be turned over to the treasurer of the taxing district. From an analysis of the foregoing, it is clear that the tax collector is specifically accountable to the treasurer who is appointed by borough council. The Borough Code, in this respect, when read in conjunction with the Local Tax Collection Law, appears to establish a check and balance system whereby the borough may maintain appropriate accounting of all funds due to the :Municipality and received thereby. In the event that both positions are held simultaneously by a single individual, this check and balance system and the procedure for accountability is lost. One individual cannot be accountable to h;,nself in both positions. The borough treasurer as the individual who must Horace A. Johnson, Esqui re June 20, 1986 Page 5 be accountable for all funds due to the borough would, in part, be accounting for the funds received from the borough tax collector. In effect, if one individual were to hold both positions, the borough treasurer would be reviewing his own work and holding himself accountable as tax collector. This clearly presents the type of conflict of interest that the Ethics Act was i ntended to prevent. Our analysis in this respect is not unique. Prior judicial determi nations have al ready set forth, for example, that the position of tax collector, in a township of the second class, was incompatible with the position of township treasurer. Commonwealth ex. rel. Morris v. Graham, 70 Pitts. L. J. 154, (1921). In that particular matter, it was noted: "The duty of the collector is to pay to the treasurer on the first instant and not even to the board of supervisors. If the same person, at the same time, held both offices, what opportunity would be afforded the public to know whether the collector was complying with the provisions of the Act of Assembly requiring him to pay over all monies collected at intervals of a month. In our opinion, the two offices if not incompatible, are made inconsistant in their functions by the Act itself. It seems undoubtedly to have been the purpose and intention of the legislature, insofar as townships of the second class are concerned, to keep the offices of tax collector and treasurer separate and to have different persons hold and perform the duties thereof, or, in other words, these two offices shall not be held by at the same time by one and the same person." See also, In re: Application to Declare Vacant Office of Tax Collector, 23 Luzerne Reporter 477, (1924), (one person may not act in a dual capacity as council for a township tax collector and township treasurer receiving taxes as attorney for the one and retaining the funds as the attorney for the other). Thus, from all of the foregoing, it is clear that the Office of Borough Tax Collector and the Office of Borough Treasurer were intended to be held by separate individuals. The powers and duties of each office, as outlined in the Borough Code as well as in the Local Tax Collection Law, clearly indicate that if one individual were to serve in both positions, they would be called upon to exercise powers, duties and responsibilities in relation to the other position that they would hold. In this respect, there would be a constant conflict of interest which would require the individual in one position to pass judgement upon and seek accountability from himself in the other position. This is the exact type of conflict of interest which the Ethics Act was intended to prevent. Because the interest of these offices could be adverse, a conflict of interest exists. Horace A. Johnson, Esqui re June 20, 1986 Page 6 IV. Conclusion: The Ethics Act, which allows the State Ethics Commision to address other areas of possible conflict, would prohibit a single individual from simultaneously servi ng as the borough tax col lector and borough treasurer. Simultaneous service in these positions creates an inherent incompatibility as the office of Borough Tax Collector ~s responsible for turning over to the Borough Treasurer all funds collected and due the municipality. The borough treasurer is responsible for receivi ng and accounting for all funds due from the tax collector. As such, there would be an inherent conf i i ct of interest it one individual were to serve in both positions as said individual would be accounti ng to himself on a continual basis. An analysis of the Borough Code and the existing case law supports this rat anale and, as such, we believe that a prohibited conflict of interest would be occasioned by such simultaneous service. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or crimi nal proceedi ng, providi ng the requestor has disclosed truthfully all the material facts and committed the acts complained of i n reliance of the advice given. This letter is a public record and will be made available as such. Fi nal ly, any person may request wi thi n 15 days of servi ce of the opi nion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opi nion requires reconsideration. By the Commission, )8r• sk,Ele -en- O� ��r�e cr�✓s7� G. Sieber Pancoast Chairman