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Home My WebLink About02-605 McCainKimberly McCain R.R. #1, Box 28 Springville, PA 18844 ADVICE OF COUNSEL October 15, 2002 02 -605 Re: Simultaneous Service, School District Secretary who Audits Tax Collector Reports and Township Tax Collector. Dear Ms. McCain: This responds to your letter of September 10, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1 § 1101 et seq., imposes any prohibition or restrictions upon a secretary employed by a school district whose job duties include auditing tax collector reports with regard to simultaneously serving as one of the township tax collectors who collects taxes for the school district. Facts: As a secretary employed by the Elk Lake School District ( "School ii5sfrict "), you seek an advisory from the State Ethics Commission regarding your prospective simultaneous service as a township tax collector. You have submitted facts which may be fairly summarized as follows. In your current position with the School District, your job duties include the handling of payroll and receiving and the auditing of tax collector reports. However, you state that as a union secretary, you have the opportunity to perform any secretarial job in the School District. You do not have a contract specifically for your current position. The Tax Collector for Dimock Township ( "Township ") is considering asking the Township Supervisors to appoint a new Tax Collector in her stead. You ask whether it would be a conflict of interest for you to serve as the Township's Tax Collector. Per the submitted facts, the procedures pertaining to the collection of taxes for the School District are as follows. First, the original duplicate is provided to the School District by Susquehanna County ( "County "). The School District exonerates certain categories of individuals and then prints its own bills and provides them to the tax collectors along with a duplicate. Thereafter, the tax collectors provide you with a list of the taxpayers who have paid. You keep track of the taxpayers who have paid and those who have not. The tax collectors forward the names of the delinquent taxpayers to a delinquent tax collection agency. When that agency has done all that it can, the McCain 02 -605 October 15, 2002 Page 2 School District forwards the names of the remaining delinquent taxpayers to another tax collection agency. You state that you do not see any problem with regard to your proposed simultaneous service as a Tax Collector and the performance of your aforesaid job duties for the School District. You note that you would have to provide the same "paperwork" as everyone else. You further note that although the School District is on all of the tax collectors' checking accounts, you are not an authorized agent of the School District for that purpose. Finally, you note that as a tax collector, you would have to give a final report to the County which provided the original duplicate. Discussion: It is initially noted that pursuant to Sections 11070 0) and 110701) of the iciEfF s t,, 65 Pa.C.S. §§ 1107(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 Pa.C.S. §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the instant matter, you have not submitted an official job description for your current position with the School District. Therefore, the determination of your status under the Ethics Act as to that position is based strictly upon the facts which you have submitted. As a secretary for the School District with responsibilities including the handling of payroll and receiving and the auditing of tax collector reports, you would be considered a public employee' subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. If appointed Township Tax Collector, you would, in that position, be a "public official" subject to the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. The defined as § 1103(a). following terms that pertain to conflicts of interest under the Ethics Act are follows: § 1102. 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. The term 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 McCain 02 -605 October 15, 2002 Page 3 with 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. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. There does not appear to be any statutorily - declared incompatibility that would preclude simultaneous service in the positions in questions. Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict See, Johnson, Opinion 86 -004; see also, Nelson, Opinion 85 -009. Where an inherent coFlict would exist, it would appear to be impossible, as a practical matter, for the ublic official /public employee to function in the conflicting positions without running afoul of Section 1103(a). In this case, if you would simultaneously serve as Township Tax Collector and as the secretary at the School District who is responsible for auditing the Tax Collector's reports, there would be an inherent conflict under Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a secretary for Elk Lake School District ( "School District ") with responsibilities including the handling of payroll and receiving and the auditing of tax collector reports, you would be considered a "public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq. If appointed Tax Collector for Dimock Township ( "Township "), you would, in that position, be a "public official" subject to the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as Township Tax Collector and as the secretary at the School District who is responsible for auditing the Township Tax Collector's reports. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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. McCain 02 -605 October 15, 2002 Page 4 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). 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. Sincerely, Vincent J. Dopko Chief Counsel