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HomeMy WebLinkAbout86-004-R JohnsonHorace A. Johnson, Esquire Randall L. Hartman, Borough Treasurer 3rd & Market Streets P.O. Box 109 Lemoyne, PA 17043 -0109 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDEdUG 2 D 1986 MAI LEE UG 2 b ytib Re: Reconsideration request, Johnson, 86 -004. Dear Messrs. Johnson and Hartman: This responds to the request for reconsideration of State Ethics Commission Opinion 86 -004, which was presented to the Commission on July 3, 1986, by Randall L. Hartman, Borough Treasurer. I. Issue: 86 -004 -R Whether the opinion of the State EthicsuCommission issued on June 20, 1986 (86 -004) should be reconsidered. II. Factual Basis for Determination: On April 29, 1986, Mr. Horace A. Johnson, Esquire, the Solicitor for the Borough of Lemoyne requested the opinion of the State Ethics Commission regarding whether any conflict of interest would be occasioned if one individual were to serve simultaneously in the office of borough treasurer and borough tax collector. The letter of request noted that a Borough Code provision provides that borough officials, either elected or appointed may not serve in positions that are incompatible. The solicitor noted that with one individual holding both offices, all duties of collection, recording; reporting and disbursement of public monies, are in the control of one person. In light of the above, Mr. Johnson had requested the opinion of the State Ethics Commission in relation to this matter. On May 9, 1986, Mr. Johnson was notified that the Commission had received his request and that such would be processed in accordance with the State Ethics Act. On May 21, 1986, Mr. Johnson was once again notified by the State Ethics Commission that the matter would be presented to the full Commission for the issuance of an opinion. Mr. Johnson was advised, at that time, that Horace A. Johnson, Esquire Randall L. Hartman, Borough Treasurer Page 2 the Commission would be meeting to review this issue on June 12, 1986 and that he could attend to present any materials which he believed would be relevant to the issue involved. On June 12, 1986, the State Ethics Commission reviewed the issue at a public meeting of the Commission and determined that an inherent incompatibility would be presented by one individual's simultaneous service in the positions of borough tax collector and borough treasurer. The Commission determined that a conflict of interest, within the purview of the State Ethics Act, would be occasioned and, therefore, such service would be prohibited by that law. No individual was present on behalf of Mr. Johnson or the Borough of Lemoyne. The Commission's decision was formalized on June 20, 1986 in a written Opinion, No. 86 -004. On July 3, 1986, the Commission received a letter from Randall L. Hartman, Lemoyne Borough Treasurer, specifically requesting that the Commission reconsider Opinion No. 86 -004. Mr. Hartman serves as the Lemoyne Borough Treasurer and was directly affected by the Commission's opinion. As part of his reconsideration request, Mr. Hartman argues as follows: 1. In townships of the first class the treasurer, by law, is the tax collector. If these positions are not incompatible pursuant to that law, how can there be an incompatibility in the instant situation? 2. The tax collector is an independently elected local official accountable to the electorate. All borough funds are audited by independent auditors. The treasurer's duties are to keep 'a just account of all receipts and disbursements and shall annually submit his account to the borough, auditors or controller. This independent audit of the treasurer and tax collector act as a check and balance and relieves any inherent incompatibility. 3. The Pennsylvania Court case cited by the Commission was decided in 1921. The Borough Code currently in effect became law in 1966. Hearing on the reconsideration request was conducted on August 20, 1986, and a number of borough officials including Mr. Hartman attended to present statements. The evidence presented indicated that the borough of Lemoyne had established various internal systems that arguably acted as a check and balance on any conflict of interest. This factual data, which had been available but not presented at the time of our original opinion, was in addition to the arguments set forth above. III. Discussion: We have been asked to reconsider our opinion in Johnson, 86 -004, by Mr. Randall Hartman, the Treasurer of the Borough of Lemoyne. Generally, the issues to be considered, in reviewing a request for reconsideration of the type presented herein, are limited. The discretion of an administrative Horace A. Johnson, Esquire Randall L. Hartman, Borough Treasurer Page 3 agency in granting or denying reconsideration is broad and if exercised in a sound manner will be sustained. See, Krane, 84- 001 -R. Reconsideration of an agency decision is generally granted to afford an opportunity to adduce testimony or evidence not offered at the original proceeding because it was not available. Douglas v. Workmen's Compensation Appeal Board, 32 Pa. Commw. Ct. 156, 377 A.2d 1300, (1977). Re- hearing is generally not granted solely for the purpose of strengthening a weak case or for the purpose of hearing testimony which may be cumulative. See, Pennsylvania Glass /Sand Corporation v. Workmen's Compensation Appeal Board, 46 Pa. Commw. Ct. 377, 407 A.2d 76, (1979). These well established provisions of law have specifically been adopted by the Pennsylvania State Ethics Commission in reviewing requests for reconsideration of Commission opinions. See, Coyle, 83 -002, P.U.C. /Keener- Farley, 84- 005 -R. In the instant situation, you have offered argument regarding issues that have already been considered by the State Ethics Commission. Initially, we note that the fact that one municipal code may permit something that another municipal code prohibits is not dispositive of the current issue. Specifically, we have reviewed, on a number of occasions, the various municipal codes in the Commonwealth of Pennsylvania and have determined that many codes prohibit activities which another code will permit. The fact that the First Class Township Code, a 1931 enactment, specifically permits the tax collector to act as treasurer, does not impact upon the fact that the later enacted Borough Code of 1966, would appear to prohibit such activity. We must assume that there were sound reasons supporting the General Assembly's decision to make distinctions in the various` municipal codes regarding the same offices. Additionally, the fact that the tax collector and treasurer are independently audited does not negate the fact that the tax collector is responsible for turning over to the treasurer, the actual money collected and due the borough. Specifically, the borough treasurer is responsible to the borough council for insuring that all funds due the borough, from whatever source, are appropriately collected. He is also responsible for disbursing funds as required. The fact that this individual is audited, does not negate the fact that he still is responsible for making a day -to -day accounting from the borough tax collector of all funds due and received. Additionaly_, the auditors and controller perform their respective functions on an annual basis whereas the treasurer is responsible for the daily accounting due from the tax collector. The borough tax collector is responsible for collecting taxes, not only for the borough but for other local taxing authorities as set forth in the local tax collection law. 72 P.S. §5511.01 et. seq. Our original opinion was based upon our review of the various powers and duties of both the borough tax collector and borough treasurer as statutorily provided. We also reviewed the borough prohibition that officers and officials may not serve in other positions within the borough if there is an actual incompatibility. Our review of all of the pertinent statutory law, as well as judicial decisions regarding similar situations, led us to conclude that the positions were, in fact, incompatible and that a conflict of interest was occasioned. Horace A. Johnson, Esquire Randall L. Hartman, Borough Treasurer Page 4 You have finally argued that the use of a 1921 case, in our review of this matter, was inappropriate. Specifically, we note in relation to this, that the case cited by the State Ethics Commission in its original opinion, was not the sole basis upon which the opinion was issued. The Commission, as noted above, reviewed the Borough Code and the State Ethics Act, as well as various cases that would appear to address similar issues. The Commission's decision was based upon all of these factors and considerations. The fact that the Borough Code of 1966 was enacted unlike the First Class Township Code of 1931, with no specific authorization for one individual to serve in these positions simultaneously, can be viewed as the General Assembly's intent that these prior judicial decisions were appropriate and, therefore, simultaneous service would not specifically be provided for in future codes. The General Assembly, while not listing all positions which would, in fact, be incompatible, set forth a general prohibition of this nature and left the determination as to whether such incompatibilities exists to be reviewed upon request. Our use of a 1921 case as an analogy and as support for the basic rationale of the Commission, is an appropriate function. Additionally, while certain facts were provided during the reconsideration hearing, this information was available during our original proceeding but for reasons unknown, no one chose to present said information to the Commission for consideration. In any event, the information merely indicated that this particular borough implemented procedural safeguards to insure that funds are appropriately received and disbursed. These procedures, which are not statutorily required and which may differ from borough to borough, do not resolve the apparent inherent incompatibility of simultaneous service by one person in these offices. In light of the above, we do not believe that any material error of law or fact has been occasioned in this situation and in light of the fact that no evidence, which was unavailable at the original proceeding has been presented, we deny the request for reconsideration. We do note that this denial is in no way a reflection upon Mr. Hartman or the Borough of Lemoyne. From the information presented, they appear to have an effective procedural system and the Commission urges the borough officials to review the current situation in order to determine if through a restructure of the system, the.conflict might be resolved. IV. Conclusion: The r2luest for reconsideration of Opinion No. 86 -004 is denied. By the Commission, XJ AtLi.dpert, �ai►wstv�� G. Sieber Pancoast Chairman