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HomeMy WebLinkAbout98-524 McMullenSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 11, 1998 Christopher B. Jones, Esquire 406 Jefferson Ave. Scranton, PA 18510 98 -524 Re: Conflict, Public Official /Employee, County, Tax Assessment Office, Tax Assessor, Board Member, Private Property, Appeal, Assessment. Dear Mr. Jones; This responds to your letter of February 5, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a pubic official /employee, who is a member of the county tax assessment board, from taking an appeal as to the assessment of his private property. Facts: You represent Patrick and Margaret McMullen who own a commercial property located at 217 -219 East Market St. in Scranton, PA, which property is a restaurant and bar. Mr. McMullen (McMullen) is also a county employee, having been appointed to the Lackawanna County Tax Assessors Office ( LCTAO) by the current County Commissioners. The Tax Assessor's Office addresses the appeals of property owners in connection with real estate tax assessments on their respective properties. Through a recent discovery, McMullen believes that his property identified above was over - assessed by the previous administration. McMullen would like to appeal the assessment to the LCTAO Board, on which he sits, in order to request a reduction in the tax assessment on his property. McMullen will recuse himself and not render any opinion as to his entitlement to an assessment reduction. You ask whether McMullen is entitled to bring such an appeal to the LCTAO while serving as a member, and if so, what concerns must be addressed as to the matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only Jones, 98 -524 March 11, 1998 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Member of the Board of LCTAO, McMullen is a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the Jones, 98 -524 March 11, 1998 Page 3 vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. In each instance of a conflict, Sectiori 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. The stated purpose of the Ethics Law is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not conflict with the public trust. 65 P.S. §401. Section 3(a) of the Ethics Law in particular prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The Commission recognizes that public concern and criticism may arise if a public official or public employee who serves in a governmental body receives a financial benefit from the governmental body in which he serves. On the other hand, . as a general rule, the Ethics Law was not enacted nor should it be interpreted to preclude public officials or public employees from participating in proceedings which might otherwise be available to them as citizens. Wolff, Opinion 89 -030; Woodrinq Opinion 90 -001. Accordingly, although the Ethics law would not bar McMullen from appealing the assessment on his property, Section 3(a) would prohibit the use of any confidential information or the authority of his office as a means of reducing such assessment. McMullen, as a Board Member, would have a conflict as to the appeal process which conflict would extend beyond his recusal at the Board level. Thus, McMullen could not comment or have any involvement with the staff member(s) assigned to analyze his appeal. Further, if McMullen does file an appeal from his tax assessment, he would have a conflict in dealing with any financial matters involving the staff member(s) who analyzed his appeal. For example, McMullen could not participate as to matters such as the promotion of such staff member(s). See Bassi Opinion 86- 007 -R; Woodrinq, Opinion 90 -001. Jones, 98 -524 March 11, 1998 Page 4 The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code or tax assessment laws. Conclusion: As a Member of the Board of the Lackwanna County Tax Assessors Office (LCTAO), Patrick McMullen (McMullen) is a public official subject to the provisions of the Ethics Law. Although the Ethics Law would not preclude McMullen as a county tax assessment board member from appealing the tax assessment of his property, as per Section 3(a) of the Ethics Law, he could not use confidential information or the authority of his office as a public official to reduce or advance the possibility of a reduction in the tax assessment of such property. McMullen would have a conflict as to the appeal process of his own assessment, could not participate as to any aspect of the process and must observe the disclosure requirements of Section 3(j) of the Ethics Law. In addition, McMullen would have a conflict in dealing with financial matters as to the staff member(s) who were involved in the analysis of his tax assessment. Lastly, the-propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h 1. The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. t/ Vin cent J. Dopko Chief Counsel