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Home My WebLink About04-509 RobertsRobin A. Roberts, Tax Collector Ligonier Borough Tax Office 120 East Main Street Ligonier, PA 15658 Dear Ms. Roberts: ADVICE OF COUNSEL February 17, 2004 04 -509 Re: Conflict; Public Official /Employee; Borough; Tax Collector; Tax Certification Fee; Ordinance. This responds to your letter of January 13, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a borough tax collector with regard to collecting a tax certification fee pursuant to an ordinance authorizing such fee; and whether the ordinance authorizing the tax certification fee may be passed at any time. Facts: You are the Tax Collector for the Borough of Ligonier ( "Borough "). You s rguidance from the State Ethics Commission as to a tax certification fee. You state the Tax Collector's Manual provides that the municipality is required to pass an ordinance to initiate a tax certification fee; however, the Tax Collector's Manual does not state whether the ordinance may be issued at any time. You state that the lax collector's compensation from the municipality is required to be set by February 15" an election year for the next term. You ask whether the ordinance for the certification fee may be issued at any time since the fee itself does not come from the municipality, but from a third party. 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, 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 Roberts, 04 -509 February 17, 2004 Page 2 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. As the Borough Tax Collector, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that 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. § 1103(a). The following terms are defined in the Ethics Act 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 addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, the propriety of collecting tax certification fees hinges upon whether the Borough has properly authorized the collection of such fees. As per Section 1103(a) of the Ethics Act, a tax collector may not collect tax certification fees unless there is specific legal authorization to do so. Allen, Order 612 -R, affirmed, Allen v. State Ethics Commission, 1790 C.D. 1988 (Pa. Commw., Memorandum Opinion filed April 20, 1989). Roberts, 04 -509 February 17, 2004 Page 3 There may be a basis for authorizing fees for tax certifications by ordinance: § 46202. Specific powers 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 or for the failure to conform thereto: (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). However, in Allen, Order No. 612 -R, where no such ordinance had been passed, the Commission stated: The above merely authorizes a borough to prescribe certain fees for the service of officers. Absent the exercise of that power through an ordinance, no such fee may be changed by the ex parte action of an officer. Since no authority was established by action of the borough, there is no legal basis for the tax certification fee. Allen, Order 612 -R at 9. Based upon Allen, you are advised that the Borough must pass an ordinance authorizing the col ection of tax certification fees. Absent an ordinance properly authorizing tax certification fees, you could not collect such fees without running afoul of Section 1103(a) of the Ethics Act. You are further advised that if the ordinance authorizing tax certification fees would contain a provision dictating that you as the Borough Tax Collector could only receive the tax certification fees on a certain date, and you would receive such fees prior to such date, you would transgress Section 1103(a ) of the Ethics Act because you would be using the authority of your office as a Borough Tax Collector for a pecuniary benefit that would be private as being unauthorized in law. Conversely, if you as the Borough Tax Collector would receive such fees after such date, you would not transgress Section 1103(a) of the Ethics Act because you would be receiving a pecuniary benefit that would be authorized in law. Finally, with respect to your specific question as to whether an ordinance authorizing the collection of tax certification fees may be issued at any time, the State Ethics Commission does not have the jurisdiction to address such question. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Roberts, 04 -509 February 17, 2004 Page 4 Conclusion: As the Tax Collector for the Borough of Ligonier ("Borough'), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, the Borough must pass an ordinance authorizing the collection of a tax certification fee. The question as to when such ordinance must 1De passed is beyond the jurisdiction of the State Ethics Commission. Lastly, the propriety of the proposed 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. 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