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HomeMy WebLinkAbout636 BecherMr. Francis J. Becher 846 Church Street Gallitzin, PA 16641 Re: 86 -029 -C Dear Mr. Becher: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 636 Date Decided:. March 10, 1988 Date Mailed: March 16, 1988 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, elected Tax Collector of Tunnelhill Borough, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain when you increased the property millage charged to the Blair County residents of Tunnelhill Borough to eight (8) mills even though the Tunnelhill Borough Council had set the property taxes at seven (7) mills. A. Findings: 1. You serve at Tax Collector of Tunnelhill Borough, Cambria County, Pennsylvania. 2. In the early 1970's the Borough of Tunnelhill annexed a portion of Allegheny Township, Blair County, Pennsylvania through the enactment of an ordinance. a. By order dated December 23, 1970, the Court of Common Pleas of Blair County enjoined Allegheny Township from levying or collecting any taxes on the properties of individuals affected by the annexation. hr. Ft'Rrici s O. Becher Page $ L. By order date' July 24, 1974, ti-c, Court of Common Pleas of Blair County confirmed the validity c ° the annexatica. 3. As a result of the annexation, a number of residents of Alleheny - .ow; ship, Blair County, became residents of Tunnelhill Borough, Ca aria ounty and, thereby, subject to the taxing authority of that municipality. 4. On December 5, 1980, the Tunnelhill Borough Council voted to lower the tax millage from 10 mills to 7 mills in accordance with the county's increased assessment. 5. After the action of the borough council to lower the tax millac:', the original residents of the borough were taxed at the 7 mill rate while the ^sidents of the borough who were formerly part of Allegheny Township, Blair u-rty, were taxed at a rate of 8 mills. 6. "inutes of the Tunnelhill Borough Council meetings further reflect as •'une 6, 1984 - Danny Regala questioned the amount of millage or ' x ,-, +ices and stated that they are in error. Mr. Becher was to be c ntacted. b. July 5, 1984 - Danny Regala again questioned irregularities in the tax bills and council requested that the secretary have Mr. Becher present to answer any questions at the next meeting. c. August 1, 1984 - In discussing the discrepency on county tax amounts, the solicitor advised council that the tax collector be notified and that the matter was being pursued. d. September 5, 1984 - The solicitor advised council that there was error on the part of the tax collector and that overpayments should be handled by Mr. Becher. The solicitor stated that he would forward a letter to Mr. Becher. e. October 3, 1984 - Gary Lynch questioned the tax situation. The solicitor explained that those who have been overcharged should joi r; together and file a complaint. He will also send a letter to the t, collector making a formal demand for him to pay restitution of the overpayments or make a written explanation within 15 days. f. November 7, 1984 - The solicitor suggested that the secretary contact Mr. Becher about whether he has contacted his bonding Mr. Francis J. Becher Page 3 company what property owners are involved and which years the tax discrepancy covers. December 5, 1984 - A letter was sent to the tax collector but nothing was resolved. It was the opinion of the solicitor that no research was necessary to show that the tax collector. was incorrect in his actions. He said he would explore the possibilities as to how to recover the overpayments. h. January 9, 1985 - The solicitor noted that it is not possible to make a formal claim against the tax collector's bonding company until a suit has been filed. Council voted to have the solicitor draft a writ of summons to put the tax collector on formal notice and to toll the statute of limitations. g. 1. February 6, 1985 - The solicitor reported that he filed a writ and also forwarded a letter to the tax collector. He said he would proceed with interrogatories before the next meeting. j. March 6, 1985 - The writ has been served on the tax collector and he has 30 days to respond. k. April 3, 1985 - The solicitor noted that there has been no new correspondence with the tax collector and that if no response is received by the next meeting, they will be forced to take him to court. 1. May 1, 1986 - Betty and Danny Regala questioned why they were paying taxes to both Allegheny Township and Tunnelhill Borough. It was explained that they should only he paying Tunnelhill Borough. Blair County would be contacted in order to clarify this matter. The solicitor advised council that there had been no word from M, r. Becher regarding the tax issue. The council voted to have the solicitor file a complaint with the Prothonotary. m. June 5, 1985 - Solicitor advised that he had not yet filed a complaint against the tax collector. He stated that an alternative would be for the 68 property owners to file a class action suit. n. October 2, 1985 - In reference to the tax collector, the solicitor wants council's approval to proceed with a class action suit. The overcharged taxes came to 8 millg over a four -year period. The approximate total of the overcharge is $2,100.00. Mr. Francis J. - -c'her Page 4 o. November 6, 1985 - the solicitor voted that he has prepared a complaint but that he needs their signatures to execute the suit. He requested that those who might be interested contact him at his office. December 4, 1985 - the solicitor advised that Dan Regala made an appointment but the solicitor had to cancel. No other property owners came forward. The solicitor also noted that because he is borough solicitor and the borough received the tax money he may have a conflict of interest in representing the class. He su93ested that Mr. Regala's attorney proceed with the action. 7. In a letter dated October 15, 1984 from you to the Borough Solicitor, you stated that you took it upon yourself to set the tax rate at 8 mills for the residents of the borough who were formerly residents of Blair Coulty. p• 8. As the borough tax collector, your compensation is based upoi the amount of tax collected. a. You are compensated at a rate of 5% of the funds collected. 9. You provided the following information in relation to the instant situation: a. You originally stated that the "Blair County" Borough residents only paid the higher taxes one year, 1985. b. After reviewing your correspondence with the borough solicitor yt stated that they were charged the higher rate from 1981 through 1985. c. You, on your own and without the authorization of council, set the tax rate at 8 mills for the Blair County residents of the borough instead of the 7 mills set by the borough council. d. In 1985, council instructed you to bill all borough residents at the same rate. B. Driscussion: As the elected Tax Collector for Tunnelhill Borough, Cambria i,ounty, you are a "public official" as that term is defined in the State Ethics Act. 65 P.S. §402; Bailets, No. 170. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to `you . Mr. Francis J. Becher Page 5 Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this section, this Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v, State Ethics Commission, 77 Pa. Commw. 529 466 A.2d 283 (198T). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). In the instant situation, your duty as Tax Collector is to collect those taxes which are lawfully assessed and levied by the borough. As of December 5, 1980, Tunnelhill Borough voted to lower the tax millage from 10 to 7 mills in the municipality. However, although you did collect tax at the 7 mill rate from those residents of the borough that existed prior to the annexation of territory which was formerly part of Allegheny Township, you assessed tax at the rate of 8 mills as to the former residents of Allegheny Township which was annexed into Tunnelhill Borough. You engaged in this course of conduct from 1981 through 1985 despite efforts by taxpayers, the council and council's solicitor to limit your collection to the amount of 7 mills which was actually assessed by the council as to all residents. In this regard, the minutes of Tunnelhill Borough Council reflect attempts on the part of council and the solicitor as early as June, 1984, to limit your collection to the millage lawfully assessed. Specifically, it is noted that on November 7, 1984, the solicitor suggested that the secretary contact you regarding this problem and that on December 5, 1984 a letter was sent to you which did not result in compliance upon your part. Thereafter, the solicitor contemplated suit against you or alternatively a class action suit as to those taxpayers who were overbilled by your collection on an $ mill rather than 7 mill basis. In an October 15, 1984 letter from you to the solicitor, you even admit that you took it upon yourself to set the tax rate at 8 mills for those residents who were formerly of Allegheny Township, Blair County. Mr. Francis " Becher Page 6 Under the Local Tax Collection Law of 1945, your duties are limited to collecting those t Yes which are lawfully assessed by the Borough: 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. 72 P.S. §5511.35. "t is clear that you not only exceeded your authority by collecting a higher mil lage in your billings than that which was assessed by the borough, but you also used your public office in a fashion which inured to your personal benefit in that the higher mi l lage resulted in a higher commission to you. Such action is not authorized under the aforecited code and is in violation of Section 3(a) of the Ethics Act. Any argument on your part that you did not intend to personally benefit by collecting tax at the higher mil lage is of no avail. Commonwealth Court in the Yocabet case supra, specifically found that the element of intention was not a prerequisite to finding a violation of §3(a) of --thF Ethics Act: "Petitioner next argues that since it was not his inLe,:tion to use his office to obtain financial gain, to could not be in violation of Section 3(a) of the Ethics Act. `i')i argument does not withstand analysis." Yocabet at 5' C, Con':':us;un and Crder: 1. As a Tax Collector for Tunnelhill Borough, you are a "public official" subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you collected tax from residents at a higher rate than assessed which resulted in additional commissions to you. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file docume;itation" with the Commission which justifies reconsideration anal /or challenges pertinent factual findings. See 51 Pa. Code Mr. Francis J. Becher Page 7 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, A Af..: tUb G. Sieber Pancoast Chairma