HomeMy WebLinkAbout04-533 O'HearnEdward R. O'Hearn
16 North 8th Street
Kulpmont, PA 17834
Re: Simultaneous Service, Borough Tax Collector and Borough E.M.A. Director.
Dear Mr. O'Hearn:
ADVICE OF COUNSEL
April 27, 2004
04 -533
This responds to your letter of March 18, 2004, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
7 et seq., imposes any prohibition or restrictions upon a borough tax collector from
simultaneously serving as a borough E.M.A. director.
Facts: You are the Tax Collector for Kulpmont Borough ( "Borough "), Northumberland
Cuny. You collect taxes for the Borough and the Mt. Carmel Area School District. As Tax
Collector, you are paid on a "commission & per bill basis." In addition to being the Borough
Tax Collector, you are also a volunteer fireman and Emergency Medical Technician ( "EMT ")
with the Kulpmont Borough Fire Department.
The Borough has asked you to fill the position of Borough E.M.A. Director. In a
telephone conversation with a Commission staff member on April 27, 2004, you stated that the
Borough E.M.A. Director is appointed by Borough Council and is paid $100 per month without
any benefits.
Based upon the foregoing facts, ou ask whether you may simultaneously serve as
Borough Tax Collector and Borough E.M.A. Director. You note that the Borough's population
in 2002 was 2985.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the
i - 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.
O'Hearn 04 -533
April 27, 2004
Page 2
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 the Ethics Act. 65 Pa.C.S. § 1102;
51 Pa. Code § 11.1.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
(j) Voting conflict. —Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his interest
as a public record in a written memorandum filed with the person
responsible for recording the minutes of the meeting at which the
vote is taken, provided that whenever a governing body would be
unable to take any action on a matter before it because the
number of members of the body required to abstain from voting
under the provisions of this section makes the majority or other
legally required vote of approval unattainable, then such
members shall be permitted to vote if disclosures are made as
otherwise provided herein. In the case of a three - member
governing body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and the
remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made as
otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
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.
O'Hearn 04 -533
April 27, 2004
Page 3
"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.
A conflict exists under the Ethics Act where a pecuniary benefit or financial gain results
from holding incompatible positions simultaneously. The Commission has determined that if a
particular statutory enactment prohibits an official from receiving a particular pecuniary benefit
or financial gain, then that official's receipt of the same, through the authority of public office,
is unauthorized in law and therefore, is contrary to Section 1103(a) of the Ethics Act.
In this case, in order to determine whether simultaneous service in the positions in
question is precluded, the Borough Code, 52 P.S. § 45101 et seq. ( "Code ") must be reviewed.
§ 46104. Appointments; incompatible offices
Unless there is incompatibility in fact, any elective or appointive
officer of the borough shall be eligible to serve on any board,
commission, bureau or other agency created by or for the
borough, or any borough office created or authorized by statute
and may accept appointments thereunder, but no mayor or
councilman shall receive compensation therefor. No elected
borough official of a borough with a population of 3,000 or more
may serve as an employe of that borough. Where there is no
incompatibility in fact, and subject to the foregoing provisions as
to compensation, appointees of council may hold two or more
appointive borough offices, but no mayor or member of council
may serve as borough manager or as secretary or treasurer....
Nothing herein contained shall affect the eligibility of any borough
official to hold any other public office or receive compensation
therefor.
53 P.S. §46104 (Emphasis added).
It would appear that the above provision of the Borough Code would permit
simultaneous service in the positions of Borough Tax Collector and Borough E.M.A. Director.
It would also appear that the above provision would allow you to receive compensation as a
Borough E.M.A. in that you are neither the mayor nor a council member.
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). Where an inherent conflict would exist, it would appear to be impossible, as
O'Hearn 04 -533
April 27, 2004
Page 4
a practical matter, for the public official /public employee to function in the conflicting positions
without running afoul of Section 1103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more
than one position, but in each instance of a conflict of interest, the individual would be required
to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above.
In this case, based upon the facts which have been submitted, there does not appear to
be an inherent conflict that would preclude simultaneous service as the Borough Tax Collector
and the Borough E.M.A. Director. Consequently, such simultaneous service would be
permitted within the parameters of Sections 1103(a) and 1103(j).
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As the Tax Collector for Kulpmont Borough ( "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., You may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve in the positions of Borough Tax Collector and Borough E.M.A. Director,
subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of
the proposed course of conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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, 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