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Home My WebLink About92-547Dear Ms. Miller: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11 470 HARRISBURG, PA 171081470 _TELEPHONE .(717) 783 -1810 ADVICE OF COUNSEL February 26, 1992 Ms. Caroline L. Miller_ 92 -547 272 Elm Street Slippery Rock, PA 16057 Re: Simultaneous Service, Borough, Zoning Hearing Board Member and Elected Tax Assessor. 11 This responds to your letter of January 23, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a member of a borough's zoning hearing board from also serving as the borough's elected tax assessor. Facts: As an appointed Member of the Zoning Hearing Board of the Borough of Slippery Rock, you seek the advice of the State Ethics Commission regarding your prospective simultaneous service as elected Tax Assessor for the Borough. You were ,appointed to the Zoning Hearing Board in January, 1991 in place of a member whose term had expired. In May, 1991, you ran unopposed for-Tax Assessor and won. In November, you were elected Tax Assessor for the Borough of Slippery Rock. The position had been vacant several years due to the death of the former Tax Assessor. You state that no one wanted the office. You further state that the title of "Tax Assessor" is misleading because you do not assess any properties. Property is assessed by Butler County. Your duties as Tax Assessor would be to report new construction, new residents in town (for per capita tax),, any additions to existing property and change of ownership properties. Your compensation would be no more than $5O r month or $600 per year. You state that the position , of Tax Assessor is a lot of work such as checking tax duplicates rind that this is why no one ran for the position before. Following the election of a new you have been -asked whether your simultaneous service in these two - positions i - s .a conflict of interest. You state that you thought you had-checked before you ran for the office and had told that it was not. Ms. Caroline L. Miller February 26, 1992 Page 2 However, you would like an expedited ruling from this Commission, as you would have to resign from one position or the other. Discussion: As a Member of the Zoning Hearing Board of the Borough of Slippery Rock, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P:S. 402. As to whether the Ethics Law would restrict or prohibit a member of a Borough's Zoning Hearing Board from also serving as the Borough's elected Tax Assessor, it noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employees Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of other statutory enactments such as the Pennsylvania Municipalities'`tlanning Code. If, however, another provision of law somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, Opinion 85 -020. 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 under the Ethics Law: "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office 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 Ms. Caroline L. Miller February 26, 1992 Page 3 which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law the exercise .of which. is necessary.. to the performance of duties and responsibilities unique: to: a particular public office or position of' public employment. In addition, Sections 3(b). and (c) of the Ethics Law provide in part that AO person shall offer to a public official /employee anything of monetary value or. 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. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the relevant statutory enactment must be reviewed. In this case, the relevant statutory provision is Section 10903(a) of the Pennsylvania Municipalities Planning Code, which provides_in pertinent part: S10903. Membership of [zoning hearing] board (a) The membership of the [zoning hearing] board shall, upon the determination of the governing body, consist: of either three or five -residents of the municipality appointed by resolution by -the governing body.... Members of the [zoning hearing } :board shall hold no other office in the municipality. 53 P.S. §10903(a): As an elected position it seems clear that the po of Tax Assessor for the Borough-would be 'considered to be another office in the municipality. Therefore, if you were to simultaneously serve as Tax Assessor while serving as a Zoning Ms. Caroline L. Miller February 26, 1992 Page 4 Hearing Board Member, you would be holding another office in the municipality in addition to your office as a Zoning Hearing Board Member, which is expressly prohibited by law. The above provision of the Pennsylvania Municipalities Planning Code does not appear to contain any exceptions that would be applicable in the instant situation. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which the public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that the public official would receive would be a gain other than compensation provided for by law. Kina, Opinion 85 -025. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a Member of the Zoning Hearing Board of the Borough of Slippery Rock, you are a "public official" subject to the provisions of the Ethics Law. As a public official you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of a Member of the Zoning Hearing Board of the Borough of Slippery Rock and the elected Tax Assessor for the Borough of Slippery Rock. Lastly, the propriety of the proposed course of 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 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing such. Ms. Caroline L. Miller February 26, 1992 Page 5 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code $2.12. Sincerely, vviAN Vincent Dopko Chief Counsel