HomeMy WebLinkAbout612-R AllenMr. Richard A. Allen
376 Livingston Road
West Mifflin, PA 15122
Re: 86 -151 -C
Dear Mr. Allen:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 612 -R
Date Decided: June 10, 1988
Date Mailed: June 24, 1988
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. On March 31, 1988, a hearing on the
matter was conducted and relevant evidence and testimony was presented. 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, a Tax Collector for West Mifflin Borough and West
Mifflin School District, 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
by requiring a payment of $10.00 for taxpayers who ask for a receipt for their
taxes.
A. Findings:
1. You were elected to the office of tax collector for the Borough of West
Mifflin and West Mifflin School District in 1985.
a. You began serving as tax collector February 15, 1986.
b. You have previously served as an elected official in the capacity of
Council member for a total of si;: years and mayor for eight years
prior to that.
2. As tax collector, your office provides tax receipts to individual
homeowners upon payment thereof. If an individual requests a copy of the tax
receipt for the current and the previous two years, your office staff types up
a "duplicate tax receipt" form, white for school tax and yellow for the
borough tax.
a. You have stated that this service is provided at no charge.
Mr. Richard A. Allen
Page 2
b. Anne Kostilnik, your clerk, has also stated that there is no charge
for duplicate tax receipts
c. Your office is now using blue duplicate tax statements to avoid
confusion with the regular tax statements which are also white and
yellow. Different colors are used to avoid confusing duplicates with
originals.
3. In May, 1986, tax information regarding prior years taxes was provided to,
among others, three individuals on tax certification forms. At the bottom of
each is typed "no charge:"
a. May 20, 1986, Mrs. Roxanne M. Laughery of 1816 Vermont Avenue, West
Mifflin, Pennsylvania, 15122, was provided information on her school
and borough taxes dated July 22, 1985 for a total of $964.72, signed
by Richard Allen.
h, May 28, 1986, Mrs. Marie E. Seech of 4648 Bowes Avenue, West
Mifflin, Pennsylvania, 15122, was provided information on her school
and borough taxes for 1985, total $1,163.06 and school and borough
taxes for 1984 for the same amount signed by Richard Allen.
c. May 28, 1986, Mrs. Mary Gombos of
Mifflin, Pennsylvania, 15122, was
and borough taxes dated August 31
signed by Richard Allen.
3914 Vistaview Street, West
provided innformation on her school
, 1985 for a total of $1,014.29,
4. You provided copies of a tax certification log dating back to February,
1986, through to the present. This is a listing of certifications requested
on property by real estate agents and lawyers and some individuals wherein a
fee was charged and received.
a. The log consists of the following information: date of payment; how
paid (check or cash); amount paid; name and address of the residence
in question; name and address of the firm or company requesting the
information.
5. A 'reminder notice' form is sent b. your office when payment for tax
certifications is not received after th, information has been sent out.
6. Office clerk, Anne Kostilnik, maintains a steno tablet in which she keeps
track of the certifications (for which there is a charge) with the date paid
and date in which a reminder letter is sent.
Mr. Richard A. Allen
Page 3
7. Clerk Anne Ko!tiinik stated that if a person requests a receipt for their
taxes for the current or prier two years, there is no charge. If a receipt is
requested for more than two years prior to thi current year, a tax
certifica'...cn form is used and a fee of $10.00 is charged.
a, ' steed that an individual would only be charge: f the request
v:as fc r receipts that went back beyond the current oe p inr two ar
')ecau ae this would then be considered a certi fir.& en,
8. You have s,t.ated that you do charge a fee of $11.00 for 'pax tertific .tions.
You gave several reasons for charging a fee for certifications:
a. The previ o; s tax collector, Francis Horn, ci;arged $5.00 fer• the
se ei ce.
(1) Francis Horn stated that he charged a $5.00 fee for the tax
ce, ' i "ications requested by lawyers and real estate agent who
for three, four, and up to ten years of prier taxes to be
c ;. _eked. Horn 'tated that he did not charge I,- 'ividuals e'o;
ecepts if thr: only needed a year or two. checked. Yoe; hrive
tated that you increased the fee to $10 for ed:onomic eeasoNs
(2: The forme- tax collector, J. Viley Scheik, had also charged for
tax certifications.
(3) The intent of charging the fee was to help defray some cif the
..ost to him for the clerical services requester. :: researching a
tax certification.
b. You stated that you do this as a service, and you i.,1esented an
example of a tax certification dated September 2, 1987 to show the
amount of time that goes into the research of a certification. This
particular example required searching back to 1981. After Anne
Kostilnik had finished searching through the records, the requesting
party stated that they did not need the informat )n.
c, Tax collectors are not legally required to provide the service of tax
certifications.
d. Commonwealth of Pennsylvania Tax Collector's Manual issued by the
Department of Community Affairs (page 10) paragraph titled
"Certification for Reol Estate Sales" it is stated:
Mr. Richard A. Allen
Page 4
In some counties, it is the practice of attorneys to request the
local tax collectors to provide a certification of taxes paid on real
estate involved in a sale. There is no legal requirement for tax
collectors to perform this service, nor is there any statutory basis
for the: to charge a fee for these certifications.
e. One of your interpretations of this paragraph is that it does not
prohibit charging a fee for certification or put any limit on the
amount that can be charged.,
9. Yci: stated that you raised the amoun'z the fee for the tax
ceticatiLns because you couldn't afford to do them at the rate previously _
(;' °. rged s? nce it is a time consuming service; further, you do not admit to any
prof :t from this certification service.
.�. YL a :rsade statement that you did not want to get involved with
..ertifications when you tork office but continued it after discussions with
the previous tax collector to try and provide a service.
11. 'ther an collectors charge a fee for certifications including:
a , Ro> °%.on Township - $10.00 for immediate certification information
an! !;.6.,00 for certification information not requested immediately.
b. Carnegie Borough - $5.00 for all tax certification information.
11. Tota cllected from tax certifications by the Office of Richard
Allen, TWx C ,)hector of West Mifflin Borough and School District:
195 :1,895,00 (total with trailer removal permits - $1,905.00),
1C7 - $1,480.10 (total with trailer removal permit; - $1,494.00).
13. Thy Borough Ocunci 1 has not established by ordinance or other action any
fe for the production of a tax certification although you believe there is no
prerequisite to legalize charging a fee for tax certifications.
14. On October 15, 1974, the Borough Council enacted Ordinance No. 773.
Mr. Richard A. Allen
Page 5
-
The minutes of the meeting indicate as follows:
AN ORDINANCE ESTABLISHING A CHARGE OR FEE OF $5.00 FOR
EACH REQUEST FOR A SEARCH AND WRITTEN STATEMENT ISSUED BY
THE BOROUGH AS EVIDENCE OF THE EXISTENCE OR NON- EXISTENCE
OF UNLLENED_MUNICIPAL CLAIMS
hi otion by E1asz, seconded by Phillips that the Ordinance
be read. Carried. Ordinance read at length. Motion by
Olasz, Seconded by Buffing that the Ordinance be enacted,
numbered ered and published. : Roll Call: Seven ayes, no nays.
Motion carried. Ordinance given No. 773.
15. Mary Albert, Investigator for the State Ethics Commission, gave the
following testimony:
a. She followed standard procedures of first reviewing, your Statement of
Financial Interest followed by an interview with you wherein you
voluntarily supplied requested documents.
b. You advised her that when you took office, you didn't want to
continue tax certifications but did so as a service.
c. She discussed the Pennsylvania tax Collector's Manual with you and
your interpretation of the provision (that there is no legal
requirement for tax certifications and no statutory basis for
charging a fee for certification) was that there was no basis to
determiine how much should be charged or about whether there could be
a charge.
16. Anna G. Kostil nik, an employee in your office, testified •as
a. She worked in your office for two years and elaborated on the
procedures for tax certifications.
b. Assistance was given by her as to a study you did regarding talk
certifications.
c. Ms. Kostllnik, stated: that tax certificatigns_would have "to be done
In the tax collector's office because the duplicates are there; that
certifications take away from her normal duties; that more than one
certification is done per week and that- people call for information
as to whether taxes are paid.
Mr. Richard A. Allen
Page 6
d. No authorization was received from the Borough or School District to
do tax certifications.
17. Ms. Gertrude Karichko, an employee in your office, provided the
col cwi ng testimony:
a. has been employed in the tax collection office for two years and
occasionally work- on tax certifications. Her salary is paid by you.
b. You and she did a stady to determine the cost of a tax
certification.
r. i x certifications take' away rrom her normal duties.
testi pied us follows:
'.`ou havo been tax collector . ince January, 1986 and receive a
r:rmbi ned salar of $24,500.°3 f► ri the Borough and School District.
b feu have gross tax collections of appro:<imateiy million dollars.
c. $J,915.00 was received by you in pax certifications for 1936 which
s !-ept separately and vient i n' ;c a g gnen 3 f ^at of which
expeises are paid.
Vora run your office using the Tax Collectors Manual; you really
didn't care to do certifications but did them as a service.
Regarding charging a fee for tax certifications, you feel that if
t`v is no law against something, you can do it; you don't
I we there is anything wrong.
f i previous tax collector charged $5 for tax certifications; you
ch, r «e $10 which is a losing proposition because it costs about
$1 .
g. W In you were notified that a complaint was filed against you, you
set up an escrov. accouot and began placing ta: certification fees in
that account.
�. Y believe tiat your sa" :;ry was changed after ;uu took office and
ti. t a court ca ;e may ari . a on the matter.
Mr. Richard A. Allen
Page 7
i. The borough provide you with an office :without rent; the borough
pays the ti : i ti es and supplies certain ,tens. You, h )wel 'r, bought
some used equipment, calcula rs an stools.
B. Discussion: As elected tax collector for West Mifflin Borough and School
Disvrict you are a public official as that term is defined under the Ethics
Act. Accordingly, you are subject to the provisions of the Ethics Act and the
restrictions, therein, are applicable to you.
Section 3(a) of the Ethics Act provides:
Section 3. Restricted activities.
(a) No public official or public employee s'a11 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 'yhich
he is associated. 65 P.S. 403(a).
:section 3(a) of the Ethics Act specifically provides in part th?,,t a
publ'.*, official may not use his public office or confidential information to
obtain a financial gain for himself other than compensation as provided for by
law.
n the instant matter, you charge a fee of $10.00 for tax certifications;
you do not charge a fee for the current tax year or prior two years btLt Loarge
if the request is made for additional years prior to the aforementioned 3 ycar°
period.
In determining whether there is a violation of Section 3(a) o the Eth ,'s
Act, this C'nmission must determine whether the receipt of this $11.GC for
certificati ins is compensation as provided for by law.
The Lical T.( Collection Law of 1945, P.L. 1050, Section 35, as amended,
72 P.S. 5511.35 provides:
"The tax collector in boroughs and townships of the
se °ond class shall receive, as compensation for the
'eetion of county, institution district, borough and
',_wnship taxes, salary, wages or a commission on all such
t-:v is to be fixed by the respective taxing authorities
1 iyi :rj such taxes, not exceeding five per centum of the
Mr. Richard A. Alien
Page 8
amount collected. In the case of school ..i strict taxes,
the commis 'zion or compensation of the tax collector shall
h� determi ued by the board of school directors, ± the
totaa cost of such collection shall be reported annually
the Superintendent of Public Instruction, and ;hill be
- mbli shed in h report.
:or r:he collection of county, institution district,
schoi district, borough and township ta:es, the tax
collector shall be allowed by the respective taxing
a'+�.hnrities, actual and needful expendit-res for printing,
ostage, books, blanks and forms.'
Und- the above quoted provision of law, the f;ompensaticn for a tax
co is c etermi ned by the respective taxing authority. Furthermore, a
colector is entitled to certain incidental expenditures which have been
flowed by the respective taxing authority. Thus., although there is statu ory
provision for compensation and incidental expenditures, there is no statutory
-'t`4_rrzation for tax certifications. Likewise, there is no other statute,
q as 72 P.S. 5020 -407 which authorizes a $2.00 fee for mobil home removal
er ' which would allow a tax collector to receive a fee for tax
c€ :;i cat ions. Since there is no statutory basis for $10..00 tax
:=rtification fees, the receipt of such fees is a gain other than compensation
s provided for by law.
You, however, argue that Section 12021(a) of the Borough Code of Febru ry
1 -, 1966, Act 581, 53 P.S. §46202(1) is a basis for authorizing fees for tax
rerti ications. The above provision of law states, in part:
"The powers of the borough shall be vested in the
corporate authorities. Among the specific powers of the
borough shall be the following, and in the exercise of any
of such powers involving the enactment of any ordinance or
the making of any regulation, restriction or prohibition,
the borough may provide for the enforcement thereof and may
prescribe penalties for the violation thereof for the
failure to conform therto:
(1) Fees for service of officers. To prescribe
reasonable fees for the services of their officers and to
enforce the payment of the same. 53 P.S. - §46202(1)
Mr. Richard A. Allen
Page 9
"1r! above merely author :?.e A borough to prescribe certain fees for the
ss r:ice of officers. Absear`; the exerc s.; of that power through an ordinance,
no s ;h gee may he changed the pa' action of ar. officer. Siace no
authority was established by action of th borough, tluere is no legal basis
for the tax certification fee.
Concerning the case of Ruth v. Bremmer, 1549 -A- 1987, Court of Common
Pleas of Erie County wherein the propriety of charging tax certification fees
is being challenged, this Conrmissior can not be expected to desist in
performing its statutorily mandated duties simply because a pending ;awsuit
may possibly have some impact upon a given case of the Commission.
In the most recent case of Yocabet v. State Ethics Commission, Pa.
Commw. , A.2d (1987) filed at 834 C.D. 1986 on September le,
1987, Commonwealth Court specifically affirmed a Commission Order whi`:h found
that a public official violated Section 3(a) of the Ethics Act when that
i 4ividual, through his public office, received gain which was not
compensation as provided for by law. The court stated on page 5 of its
opinion:
' Secti ors 7 of the Ethics Act instructs the Commission to
investigate situations where there is a reasonable belief
that financial conflict may exist, and if conflict is
found, to require the offender to remove himself from the
conflict without gain."
'=rirthermore, Corr onwealth Court in McCutcheon v. State Ethics Commis: ion,
77 Commw. Ct. 529, 406 A.2d 280 (1981), upheld the authority of the (omm ssiou
to require persons * L n violation of the Act to return any financial g a i n
obtained therefrom.
As justification for charging the tax certification fees, you assert: a
$5.00 fee was charged by your predecessor; there is extensive administrf:' :ive
work in doing tax certification and there is no prohibition to such a
charge.
A. d, i =,ona1 law reflects, it is not a question of whether the charg nc
of a i prohibits by law but whether there is the requisite
author'- .E:tion. A,.H- from the October 15, 1987 Borough Council Ordir: nce
which F' ?ows for a ;:',00 fee for a statement regarding the existence of
muri pa's l i eo ,, t "er has ' no authorization by the respective taxing
auth r•itie, for the $1'.00 .ax cer'ification fees. Further -, 'aiiere is a
serious question r whether such at t`rarization could be made because statutory
Mr. Richrrd A. Allen
Page 10
law n,' ; a' lows com,ensation and incidental expenditures but makes no
provis'on for certifications. See 72 P.S. 5511;75, supra. Also, the
Pennsylvania Tax Col ector's Manual specifically advises that there is no
st. to ory basis for tax collectors to F:harge a fee for certif cations.
Accordingly, you have violated Section 3(a) of the Ethic Act by charging
and receiving these $10.00 fees for tax certifications.
However, due to the particular circumstances of this case and the novelty
of thi! issue which has surfaced against you, this Commission directs that you
are required tc remit the total amount of the money which you hold in escrow
rer> resenti ng ta.; :erti f icati on fees and forward that amount to the State
F!lics Commission payable to the order of the Commonwealth of Pennsylvania
te'thin thirty (30 days of the date of this Order. Failure to remit the
a "uresaid sum within 30 days to this Commission will result in the referral of
n,at' er to t appropriate law enforcement authority. FurtNer, you must
1, scon:;inue the practice of charging for tax certifications.
C. Conciu. :on and Order:
1, tax collector for West Mifflin Borough and School District, you
ire a public official subject to the provisions of the Ethics Act -
2 , Yong violated Section 3(a) of the Ethics Act by charging $10.00 tax
certification fees which is a financial gain other than compensation
- 'ovided for by law as neither the office of the tax collector nor
t:;e i rough has authority to authorize such fees.
3, "zu are directed to remit the tax certification fees held in your
escrow account to the State Ethics Commission payable to the order of
the Commonwealth of Pennsylvania within thirty (30) days of the date
o: this Order.
4. Fai' ure to remit the fees referred to in paragraph 3 above within
thirty (30) days will result in the referral of this matter to the
appropriate law enfocement authority.
5. You must discontinue the practice of charging of ^ax certifications,
Our fi'es in this case will remain confidential in accordance with
..iectiun 8(a) of the Ethics Act, 05 P.S. 408(a): However, this Order is final
:.nd will be made available as a public document 5 businese days after service
(defned as mailing.
Mr. Rickard A. Allen
Page ?1
my person who violates the confidentiality of r ► orni:,;slco proceeding
is guilty of a misdemeanor a l,I shall be fined not more tia`, - n ,1 ,C00 or
imprisoned for not more than one year or both, see b„ Po:`, 409(e). The
confidentiality provision does not restrict respondents consulta::ion with
i egc l counsel .
By the Commission,
t'os W. Marshall, Is "'
( -ha rma r
Mr. Richard A. Alien
c/o Raymond Radakovich, Esquire
1318 Fifth Avenue
Pittsburgh, PA 15219
Re: 86 -151 -C
STATE ETHICS COMMISSION
306 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF TICE COMMISSION
Order No. 612 -R Supplemental
Before: Helena G. Hughes, Chair
Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Date Decided: December 4, 1989
Date Mailed: J)Prpmhpr 15, 19R9
Dear Mr. Allen:
Whereas, the State Ethics Commission received a complaint
regarding you and a possible violation of Act 170 of 1978 and
conducted a hearing in the matter on March 31, 1988, wherein relevant
evidence and testimony was presented;
Whereas, by decision of June 10, 1988, issued on June 24, 1988,
this Commission determined that you as a tax collector for West
Mifflin Borough and School District violated Section 30a), of the
Ethics Act by charging $10 . tax certification fees which constituted
a financial gain other than compensation provided for by law;
Whereas, you were directed by this Commission to remit the tax
certification fees held in an escrow account to the Commonwealth of
Pennsylvania and to discontinue the practice of charging for tax
certifications;
Whereas, you filed a petition for review in the Commonwealth
Court of Pennsylvania at 1790 G.D. 1988, which Court affirmed the
order of this Commission by way of an Opinion dated April 20, 1989
finding that you violated the Ethics Act and could no longer charge
for tax certifications and remanding the case for a determination as
to the net amount of fees to be remitted to the Commonwealth of
Pennsylvania;
Mr. Richard A. Allen
Page 2
Whereas, on or about September 27, 1989 you and the Investigative
Division mutually determined and agreed that the appropriate amount of
the remittance to the Commonwealth of Pennsylvania is $337.00;
klhereas, a check in the amount of $337.00 was received from you
on October 26, 1989 which was 'forwarded to the Office of Treasurer of
the Commonwealth of Pennsylvania for deposit into , . the State Treasury;
Therefore, based upon the'toregoing, it is ordered that:
(1) The sum of $337.00 ..I=nstitutes the net -t of fees
to be remitted to the Commonwealth of Penns77irflia.
(2) Your payment -gf the said $337.00'oonstrtUtes compliance
with paragraph 1 and-no further action'11i1 be taken on
this matter.
Our files in this case will remain confidential in accordance
with Section 8(a) of the Ethics Act, 65 A.S. (08(a). However, this
order is final and will be made availabl.as a public document 5
.business days after service (defined as mailing).
Any person who violates the confidentiality of a .Coimthtission
proceeding is guilty of a misdemeanor and shall be fined home 'the
$1,000 or .imprisoned for not more than one year ortboth, see •'65 P . S .
409(e). The confidentiality provision does not restriot respondents
consultation with legal counsel.
By th= Commission,
Helena G. Hughes
Chair