HomeMy WebLinkAbout02-009 McCainDear Ms. McCain:
I. ISSUE:
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael J. Healey
DATE DECIDED: 12/5/02
DATE MAILED: 12/16/02
02 -009
Kimberly McCain
R.R. #1, Box 28
Springville, PA 18844
Re: Simultaneous Service; School District Secretary who Audits Tax Collector Reports and
Township Tax Collector; Appeal; Advice of Counsel.
This Opinion is issued in response to the appeal of Advice of Counsel, 02 -605, which
was issued on October 15, 2002.
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et seq., would impose 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 collecting taxes for the school district.
II. FACTUAL BASIS FOR DETERMINATION:
By letter dated October 29, 2002, you appealed Advice of Counsel, 02 -605 issued
October 15, 2002.
In the initial letter requesting an advisory, you presented the following facts.
You are employed by the Elk Lake School District ( "School District ") as a secretary.
Your current job duties include handling payroll and receiving and, most significantly, auditing
the tax collector reports. You are interested in simultaneously serving as the Tax Collector for
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December 16, 2002
Page 2
Dimock Township "Township "). You sought an advisory as to whether simultaneous service
in your position with the School District and as the Township Tax Collector would result in a
conflict of interest under the Ethics Act.
You stated that the School District taxes are collected through the following procedures.
First, the original tax 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 School District forwards the names of the remaining delinquent taxpayers to
another tax collection agency.
In the initial advisory request, you stated your view that the proposed simultaneous
service should not present a problem. You noted that as a tax collector, you would have to
provide the same "paperwork' as "everyone else," including a final report to the County. You
further noted 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 noted that
as a union secretary, it would be possible for you to perform other secretarial jobs in the
School District.
Advice of Counsel, 02 -605 determined that 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. The Advice further determined that if appointed Tax Collector for the Township, you
would, in that position, be a "public official" subject to the Ethics Act. The Advice of Counsel
stated that there does not appear to be any statutorily - declared incompatibility that would
preclude your simultaneous service in the positions in question. However, the Advice
determined that 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. McCain, Advice
02 -605 at 3. The Advice concluded that you could not, consistent with Section 1103(a) of the
Ethics Act, simultaneously serve as the Township's Tax Collector and as the secretary at the
School District who is responsible for auditing the Township's Tax Collector's reports.
In your letter of October 29, 2002, appealing Advice of Counsel, 02 -605, you proffered
the following arguments /points:
(1) That as an employee of the School District, you are not a "public
employee" because you were hired, not appointed or elected;
(2) That there is no place in the process for misconduct, because: (a)
although you keep records of the tax collectors' reports, you report to the
Business Manager, who is responsible for the reports, and then to the
County, and (b) taxes are scrutinized through annual audits of the
School District;
(3) That you live in a rural area and it is difficult to find people to hold such
positions; and
(4) That currently there are several employees of the County holding
elected positions, including an individual who is a tax collector.
In addition to raising the above arguments, you posed the following questions: (1)
whether holding a position at the School District would prevent you from running for office in
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December 16, 2002
Page 3
an election; and (2) whether you would you be able to serve as tax collector if you held a
different position with the School District.
By letter dated November 6, 2002, you were notified of the date, time and location of
the public meeting at which your request would be considered.
On November 15, 2002, the Commission received a faxed submission in which you
presented the following points.
First, you asserted that if you are considered a public employee because you receive
your salary from public funds, such will affect other tax collectors, including the one that you
seek to replace. You continued to assert that there are audits of tax collectors and schools.
You reiterated your previous argument that such positions are difficult to fill in your rural area.
You also pointed to what others have told you regarding the issue that you have presented to
this Commission.
Subsequently, you submitted another letter dated November 22, 2002, in which you
quoted two sections of the Tax Collectors Manual published by the Center for Local
Government Services. The first section pertained to the qualifications for candidates for local
tax collector. The second section pertained to positions which have been statutorily declared
incompatible with the position of tax collector.
Our review of this matter is de novo.
III. DISCUSSION:
It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act,
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, this 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.
The first issue to be addressed is whether, in your current capacity with the School
District, you would be considered a "public employee" subject to the Ethics Act. You have not
submitted an actual job description for your current position with the School District, and so
our analysis of this issue must necessarily be limited to considering your submitted listing of
your duties as including the handling of payroll and receiving and the auditing of tax collector
reports.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible for
taking or recommending official action of a nonministerial nature
with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
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December 16, 2002
Page 4
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature on
the interests of any person.
The term shall not include individuals who are employed by this
Commonwealth or any political subdivision thereof in teaching as
distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of this Commission similarly define the term "public employee" and
set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of "public
employe ":
(A) The individual normally performs his responsibility in
the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with the
authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are an
inherent and recurring part of his position.
(I) The individual's recommendations or actions affect
organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of the
Commonwealth in teaching as distinguished from administrative
duties.
(iv) Persons in the following positions are generally
considered public employes:
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December 16, 2002
Page 5
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs or
heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs and
deputies for theminorjudiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of executive,
legislative and independent agencies, boards and commissions
except clerical personnel.
(v) Persons in the following positions are generally not
considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by applying the
above definition and criteria to the position held. The focus is necessarily upon the position
itself, and not upon the individual incumbent in the position, the variable functions of the
position, or the manner in which a particular individual occupying the position may carry out
those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 Pa. Commw. Ct.
1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the
Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be
construed broadly and that exclusions under the Ethics Act be construed narrowly. See,
Phillips, supra.
Based upon the above judicial directives, the provisions of the Ethics Act, and the
Regulations and Opinions of this Commission, in light of your current duties and
responsibilities, the necessary conclusion is that you are a "public employee" subject to the
Ethics Act.
It is clear that in your capacity as the secretary at the School District whose job duties
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December 16, 2002
Page 6
include the handling of payroll and receiving and the auditing of tax collector reports, you have
the ability to take or recommend official action with respect to subparagraphs (4) and (5) within
the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Such
activities also meet the criteria for determining your status as a public employee under the
Regulations of this Commission, specifically at 51 Pa. Code § 11.1, "public employee,"
subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act.
Your arguments to the contrary are without merit. In response to your argument that as
an employee of the School District, you should not be considered a "public employee"
because you were hired, not appointed or elected, you are advised that public employees need
not be appointed or elected to fall within the above statutory definition. In response to your
argument regarding the impact that you believe this conclusion will have upon others, we need
merely state that this advisory Opinion is limited to addressing your inquiry regarding your
proposed conduct under what would appear to be rather unique circumstances.
If appointed Township Tax Collector, you would, in that position, be a "public official"
subject to the Ethics Act. See, e.q., Colella, Order 1130; Gulnac, Order 1135.
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. § 1103(a).
The following terms pertaining to conflicts of interest under the Ethics Act are defined
as 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 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 your appeal, Advice of Counsel
02 -605 accurately noted that the General Assembly has the constitutional power to declare by
law which offices are incompatible, Pa. Const. Art. 6, §2, and that there does not appear to be
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December 16, 2002
Page 7
any statutorily - declared incompatibility that would preclude simultaneous service in the
positions in question.
However, the Advice of Counsel also accurately noted that when simultaneous service
places the public official /public employee in a continual state of conflict, such as when in one
position he is accounting to himself in the other position on a continual basis, there is an
inherent conflict making it impossible, as a practical matter, for the public official /public
employee to function in the conflicting positions without running afoul of Section 1103(a) of
the Ethics Act. See, Johnson, Opinion 86 -004; see also, Nelson, Opinion 85 -009.
The Advice of Counsel correctly concluded that if you would simultaneously serve as
the Township's Tax Collector and as the secretary at the School District who is responsible for
auditing the Township's Tax Collector's reports, there would be an inherent conflict under
Section 1103(a) of the Ethics Act.
Despite your contention that there is no place in the process for misconduct, given the
oversight of the Business Manager and the County, as well as the performance of certain
audits, the functions which you currently perform for the School District are an important and
practical component of a check - and - balance system designed to ensure the propriety of the
tax collection process. Permitting an individual performing such a role to audit her own Tax
Collector reports would undermine the check - and - balance system.
In ColeIla, Order 1130 and Gulnac, Order 1135, we determined that two tax collectors
violated Section 1103(a) of the Ethics Act when they converted tax payments for their
personal use. In ColeIla, Order 1130, which involved missing tax payments determined by one
audit to be in excess of $106,000, there were inadequate records as well as discrepancies
between the lists of individuals who paid their taxes and the deposit reports submitted by the
tax collector. In Gulnac, Order 1135, which involved a shortage in tax payments totaling in
excess of $164,000, the tax collector initially concealed her wrongdoing through a cycle of
covering the shortages of a given taxing body with taxes collected for other taxing bodies
during a discount period. The tax collector's wrongdoing came to light when the school district
involved in that case questioned the tax collections and refused to continue to accept late
payments from the tax collector. How much longer might the conversion of taxes in these
cases have gone undetected had the tax collectors been school district employees responsible
for monitoring or reconciling their own tax collector reports?
We cite the above cases not to suggest that you would engage in this sort of conduct,
but merely to illustrate the potential for abuse that exists and the necessity for preserving the
integrity of the check - and - balance system to prevent /detect abuse.
As for your argument that you live in a rural area and it is difficult to find people to hold
these positions, we would note that the restrictions of Section 1103(a) of the Ethics Act are
legislatively mandated and apply equally to all public officials and public employees. As the
administrative body charged with administering, interpreting, and enforcing the Ethics Act, this
Commission does not have the legislative power to carve out exceptions to the Act or to waive
its restrictions. See, e.g., Yatron, Opinion 02 -008; Ziegler, Opinion 98 -001; Long, Opinions
97 -010 and 97- 010 -R; Richardson, Opinion No. 93 -006.
As for your argument that currently there are several employees of the County holding
elected positions, including an individual who is a tax collector, we need only note that: (1) in
the context of an advisory, we address the proposed conduct of the requestor, not third
parties; and (2) in any event, the fact that others may be engaged in conduct which the
requestor perceives to be analogous to the requestor's proposed conduct does not establish
the propriety of the proposed conduct.
Your final argument in support of your appeal made reference to two sections of the
Tax Collectors Manual published by the Center for Local Government Services. The first
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December 16, 2002
Page 8
section pertained to the qualifications for candidates for local tax collector. The second
section pertained to positions which have been statutorily declared incompatible with the
position of tax collector. Neither of these sections has any legal significance in deciding your
appeal. First, your qualifications were not at issue and did not form a basis for the Advice of
Counsel. Second, the Advice of Counsel acknowledged that there does not appear to be any
statutorily - declared incompatibility that would preclude your simultaneous service in the
positions in question. Rather, the Advice determined that your proposed simultaneous service
as Township Tax Collector and as the secretary at the School District responsible for auditing
the Tax Collector's reports would result in an inherent conflict under Section 1103(a) of the
Ethics Act. McCain, Advice 02 -605 at 3.
We shall now address the two additional questions posed in your letter of appeal.
In response to your first question, you are advised that the Ethics Act would not
preclude you from holding a position at the School District while running for an elective office.
Rather, Section 1103(a) of the Ethics Act would prohibit you from simultaneously serving in
positions that would place you in an inherent conflict.
Your second question suggests a possible solution to your dilemma. If you would hold
a different secretarial position with the School District that would not involve your work as a
Tax Collector, then absent some other basis for a conflict of interest, such simultaneous
service would not be prohibited by the Ethics Act.
Another possible solution would be for your current position to be redefined so that
someone else at the School District -- independent of you - -would audit your Tax Collector
reports. Thus, while you could not delegate your authority as to auditing your Tax Collector
reports to a subordinate, if someone other than a subordinate would assume your School
District duties as to your Tax Collector reports, you would be able to keep your current job with
the School District, as modified, and simultaneously serve as the Township's Tax Collector.
(For a more detailed discussion of these points, see, Confidential Opinion, 02 -004.) As in any
conflict of interest situation, your abstention as to your own Tax Collector reports would have
to be complete and you would have to make the requisite disclosures pursuant to Section
1103(j).
Based upon the above analysis, we deny the appeal and affirm McCain, Advice of
Counsel 02 -605 as modified.
Lastly, the propriety of the proposed course of conduct has only been addressed under
the Ethics Act.
IV. CONCLUSION:
A secretary employed by a school district who performs responsibilities including the
handling of payroll and receiving and the auditing of tax collector reports 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 to serve as a township tax collector,
such individual would, in her capacity as a tax collector, be a "public official" subject to the
Ethics Act. Such individual could not, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve as a township tax collector and as the secretary at the school district
responsible for auditing her own tax collector reports. If the individual would hold a different
position with the school district that would not involve her work as a tax collector, then absent
some other basis for a conflict of interest, such simultaneous service would not be prohibited
by the Ethics Act. Additionally, while such individual could not delegate her authority as to
auditing her tax collector reports to a subordinate, if someone other than a subordinate would
assume her school district duties as to her tax collector reports, she would be able to keep her
current job with the school district and simultaneously serve as a township tax collector. In the
latter scenario, such individual's abstention as to her own tax collector reports would have to
McCain, 02 -009
December 16, 2002
Page 9
be complete and she would have to make the requisite disclosures pursuant to Section
1103(j). Advice of Counsel 02 -605 is affirmed as modified.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued
to him shall not be subject to criminal or civil penalties for so acting provided the material facts
are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the mailing
date of this Opinion. The party requesting reconsideration must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §
21.29(b).
By the Commission,
Louis W. Fryman
Chair