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HomeMy WebLinkAbout1353 TrexlerIn Re: Carol Trexler File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Paul M. Henry Raquel K. Bergen 03 -047 Order No. 1353 2/28/05 3/14/05 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Act, Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Trexler, 03 -047 Page 2 I. ALLEGATION: That Carol Trexler, a (public official /public employee) in her capacity as a treasurer/ tax collector for South Whitehall Township, Lehigh County, violated Sections 1103(a) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a) when she used the authority of her office for a private pecuniary gain by charging tax certification fees in excess of the fee approved by the township board of commissioners and retained the additional fees for personal use. II. FINDINGS: 1. Carol Trexler has served as the elected treasurer for South Whitehall Township. 2. As tax collector /treasurer for South Whitehall Township Trexler collects real estate and per capita taxes from township residents for the township, Parkland School District and Lehigh County. 3. Compensation for the position of tax collector /treasurer is set by South Whitehall Township, the Parkland School District and Lehigh County. 4. Real estate tax certifications are required by title /abstract companies as part of real estate closing documents. a. Closing companies pay the fees charged by tax collectors for tax certifications as a cost of doing business. 5. A real estate tax certification gets initiated as a result of a request submitted to the tax collector by an individual, title /abstract company or law firm on behalf of a client. a. The tax collector would research collection records and provide the requesting party with a certification indicating whether or not the real estate taxes were paid on the subject property. 6. Tax Collectors generally charge a fee for this service which is set by ordinance or resolution of the municipality. 7 The South Whitehall Township Board of Commissioners unanimously approved Ordinance No. 500 at their February 19, 1991, meeting, establishing a fee of $10.00 for tax certifications. 8. Sewer and water certifications are also sought by title /abstract companies or law firms when completing real estate transactions. a. The township charges a fee for issuing these certifications. 9. Township files include ordinance number 419 enacted on July 21, 1987, which established a $10.00 fee for water and sewer certifications. a. Water and sewer account certifications are handled by the township's administrative staff. b. The elected tax collector /treasurer plays no role in the certification of water and sewer accounts. 10. On January 1, 2002, Trexler circulated a memo to various title /abstract companies advising that Phyllis Long was no longer the treasurer of South Whitehall Township. Trexler's memo noted, "Checks should be made payable to Carol A. Trexler, Treasurer, when requesting tax certifications and lien certifications with the fees Trexler, 03 -047 Page 3 remaining at $10.00." 11. From January 2002 until March 7, 2002, Trexler provided tax certifications to companies and individuals requesting information for a fee of $10.00 for a current years certification that taxes were paid consistent with the $10.00 fee established by ordinance number 500 enacted February 19, 1991. 12. Trexler approached Township Manager Gerald Gasda to discuss increasing the tax certification fee on or about March 7, 2002. 13. Gasda was unaware of the need for a resolution or ordinance by the board of commissioners authorizing the increase when he was approached by Trexler. a. Gasda did not object to Trexler increasing the fee based on his lack of knowledge of the legal requirements for such a change to be made. b. Gasda did not have authority to authorize her to charge added fees. 14. On or about March 7, 2002, Trexler distributed a memo to companies who had ordered real estate tax certifications informing them that the cost of tax certifications was changed to $20.00. 15. Trexler's decision to increase the tax certification fee was based upon her discussion with the township manager. 16. South Whitehall Township Manager Gerald Gasda and the township commissioners received complaints from title /abstract companies regarding Trexler increasing the tax certification fees. 17. As a result of complaints from various title companies over the increase, Manager Gasda and the township solicitor researched the topic. a. Manager Gasda was unable to find any authorization for the tax collector to charge a real estate tax certification fee. b. Township Ordinance Number 500 establishing a $10.00 real estate tax certification fee was not in the township's codified ordinance book at the time of Gasda's record review. 1. An executed copy of this ordinance was eventually located in township archives. c. Gasda's research found that prior tax collectors Phyllis Long and Christopher Haines each charged $10.00 per tax certification. 18. On May 22, 2002, Township Manager Gasda issued a memo to Treasurer Trexler outlining Trexler's responsibilities to collect taxes personally or with the assistance of an authorized deputy treasurer. Gasda went on to inform Trexler that she was not authorized to charge a tax certification fee. On this point, Gasda specifically wrote: a. "I have been recently advised by the solicitor's office that there is no authorization for the Treasurer to charge a fee for tax certification unless that fee is authorized by municipal ordinance. This action is established by a 1988 Commonwealth Court decision Allen v. State Ethics Commission, (Opinion and Order filed at No. 1790 CD 1988, PA Commonwealth June 10, 1988). I have searched the Township Codified Ordinances and have found Trexler, 03 -047 Page 4 that there is no ordinance authorization for the assessment of a tax certification fee by the Treasurer. You are, consequently, not permitted to charge any fee for tax certifications. You may request that the Board of Commissioners enact an ordinance, which would allow you to charge a fee for tax certifications. I recognize that this is contrary to the information on this topic which we discussed several months ago when you changed the fee from the $10.00 that was charged by your predecessor to your current charge, which believe is $20.00. Because tax collectors are municipal officers, the municipality has the power to establish fees for services of its officers." 19. Trexler responded to Gasda's May 22, 2002, memo with a memo dated May 23, 2002, relating to the tax certification issue. a. Trexler informed Gasda of her understanding of the tax certification fees historically charged by her predecessors. Phyllis Long $ 10.00 each, 4 years Christopher Haines $ 10.00 each, 8 years Albert Haines $ 5.00 each b. Trexler went on to indicate that on March 7, 2002, Gasda said she could charge $20.00 per tax certification. c. Trexler requested that an ordinance be in place as soon as possible to authorize the fee of $20.00 for each certification." 20. As a result of Trexler's concerns over her compensation, the following series of memos were exchanged between Trexler and township officials. a. May 30, 2002: Memo from Manager Gasda to Commissioner Gary R. Search outlining the compensation for the Treasurer. The Parkland School District pays the SWT Treasurer a flat fee of $16,520.00 per year. This fee is fixed for each year of the four -year term of office. The school district also provides the treasurer with the same package of benefits that are provided to Parkland School District Employee. The County of Lehigh pays the SWT Treasurer a fee based on the number of bills that are processed the fee schedule is as follows: $3.00 for the first 1,000 bills $2.25 for bills 1,001 to 3,001 $1.75 for the remaining bills Additionally, the treasurer is compensated $0.50 for each bill that is paid electronically by a mortgage company. The gentleman at Lehigh County that I spoke to advised me that the Treasurer is budgeted to receive $13,935 this year from Lehigh County. This commission is paid in the form of a bi- weekly draw of $455.58 which presumably represents what was described as An 85% draw against commission" with settlement on the difference occurring at the end of the fiscal year." The Total Approximate Compensation for the SWT Treasurer is: Trexler, 03 -047 Page 5 g. South Whitehall Township Parkland School District Lehigh County Total Compensation $10,000 $16,520 plus benefits $13,935 $40,455 plus benefits Trexler asserts that the Parkland School District paid the South Whitehall Township Treasurer a total salary of $7,624.56 during the year 2002 plus Blue Cross /Blue Shield health benefits. The total salary in 2002 was $28,102.90 before taxes. ii. Trexler further asserts that during the years 2003 and 2004 the total salary from Parkland School District was $16,519.88 with Blue Cross and Blue Shield health benefits. b. June 5, 2002: Memo from Manager Gasda to Treasurer Trexler regarding assessing fees for returned checks. Gasda informed Trexler that she was not permitted to deduct bank fees from tax revenues collected. c. June 18, 2002: Correspondence from Attorney Timothy I. Siegfried to the South Whitehall Township Board of Commissioners requesting authorization for Trexler as tax collector to charge $20 per tax certification issued. Attorney Siegfried included a draft resolution for board consideration. d. July 2, 2002: Memo from Manager Gasda to the board of commissioners regarding fees charged by Lehigh County Tax Collectors for tax certifications and tax bill duplicates. Gasda found out that all other Lehigh County tax collectors charged $10.00 per tax certification and $2.00 for a tax bill duplicate. Trexler asserts that Whitehall Township, in Lehigh County, charged $20.00 for tax certifications. e. July 10, 2002: Correspondence from Attorney Siegfried to township solicitor Blake C. Marles requesting a meeting to discuss issues between the township and the tax collector. f. August 16, 2001 (2002): Memo from Manager Gasda to the board of commissioners providing a chronology of his involvement with Trexler's efforts to increase the tax certification rate to $20 per certification. Gasda included a copy of his May 22, 2002, correspondence to Trexler. Gasda recalled discussing the increase with her in March (2002) and communicated with her that Gasda wasn't aware of any regulation prohibiting her from increasing the tax certification rate to $20. After learning from Solicitor Marles that an ordinance was needed he reviewed the township ordinance book and found no approval. Gasda indicated he conveyed this to Trexler on May 22, 2002. Gasda went on to indicate that Trexler never was advised that there was an ordinance or other document allowing her to charge $10.00 and she was not to charge any fee until she had an approved ordinance. Phyllis Long was the treasurer of Whitehall Township in August 2001. September 18, 2002: Memo from Gasda to the Board of Commissioners informing them that Trexler is still collecting $20.00 per tax certification even though the board approved amount is $10.00. Trexler, 03 -047 Page 6 h. September 19, 2002: File notes on problems title companies have been having getting certifications from Trexler. Buyers Settlement /Hamilton Abstract — sending $20.00, from the beginning she would return the checks if they were only $10.00. Very emphatic that they must be made payable to her personally — they do not do that with any tax collector, they are always made payable to a tax collector's name and title. When they call her she is very nasty — he has been waiting 2 to 3 weeks for tax certs and has not received them yet — she won't help so they try to have the sellers bring the tax info to settlement — Oliver told me she has sent nasty letters to them concerning the checks they mail her— Dennis Hinkle had called him about her and Oliver had sent him copies of the nasty letters. North American Abstract — very difficult to get hold of — very unprofessional Associated Abstract — does not return calls — they are still sending $20.00 — even notified otherwise. Imperial Abstract — still sending $20 Total Tax Certificates — July — 35 @ $20.00 = $700.00 August — 3 7 @ $20.00 = $740.00 September 1 -18 -24 @ $20.00 = $480.00 Crest Abstract — still sending $20.00 — problems with her returning certifications on a timely basis - emphatic regarding payable to her personally, no title -nasty on the phone — does not return calls. Penn Title — sending $20.00 per tax cert — have not been informed otherwise — when a title clerk called her on 9/17/02 — she started ranting how she had to be out of the office because she had to find a new attorney, etc. she wouldn't stop talking about it. Carol Trexler asserts that title company tax certifications were put on hold until closure came regarding the tax certification fee charge. She further asserts that attorney Timothy Seigfried verbally advised her to hold tax certifications until South Whitehall Township found the ordinance regarding the tax certification fee charges. This resulted in a delay of several weeks regarding disbursement of tax certifications. 21. In addition to the correspondence detailed in the previous findings the topic of Trexler's receipt of real estate tax certifications fees were discussed during South Whitehall Township meetings throughout 2002. 22. South Whitehall Township board of commissioners meeting minutes include the following discussions and official actions on tax certification fees charged by Treasurer Trexler. a. July 17, 2002: Attorney Rod Fluck appeared before the board seeking approval from the Board for Treasurer Trexler to charge $20.00 per tax certification and $5.00 for a duplicate tax bill. A discussion followed regarding rates charged by surrounding municipalities, hours worked by and complaints made against Trexler. The commissioners decided to table the request until all five (5) members were present to discuss it. Present: Gary Search, Larry Bernhard, Steven Seyer Absent: Martha Nolan, Renato Rodriquez Trexler, 03 -047 Page 7 b. August 21, 2002: Citizen complaints about tax collectors office hours. Attorney Timothy Siegfried appeared before the board to discuss a proposed ordinance to increase the tax certification fee from $10.00 to $20.00 with a $5.00 fee for the duplicates. It was the consensus of the board that staff should prepare an ordinance establishing a tax certification fee at $10.00 and a returned check fee at the current bank rate with no inclusion of the requested $5.00 tax duplication fee. Attorney Siefried requested the Board work with him to resolve their issues with Treasurer Trexler. Present: Search, Rodriquez, Bernard, Seyer c. September 4, 2002: Citizens complaints about relocating the tax collector office from the township building to the Wehr Dam Hall Building. Complaints about Trexler's office hours. Attorney Siegfried appeared again on behalf of Trexler to address township issues with Trexler. Commissioner search called for Trexler to resign if the job is to "tedious" for her. The commissioners then approved ordinance number 764 which amended ordinance number 630. Ordinance 630 established fees for permits, licenses, service charges, zoning board subdivision, and land development applications. Ordinance 764 established a $10 per property tax certification fee and a returned check charge at the same rate charged to the tax collector by the bank. Commissioners Bernhard, Nolan and Search voted to approve this amendment. 23. Official action taken by the South Whitehall Township Board of Commissioners on September 4, 2002, approving Ordinance 764 re- established the tax certification rate of $10.00 each established on February 19, 1991, as a result of Ordinance 500. a. Township officials were unaware of the existence of Ordinance 500 at the time they enacted Ordinance No. 764. 24. As a result of Ordinance No. 764 companies including Crest Abstract and Hamilton Abstract went back to paying $10.00 per certification in October 2002. a. After the September 4, 2002, township meeting during which the tax certification fee was set at $10.00, Trexler continued to request the $20.00 fee she was accustomed to receiving. b. Abstract companies complied with Trexler's demands since they needed the certifications to do business by paying the $20.00 fee. 25. The following list of companies and law firms have obtained real estate tax certifications from South Whitehall Township tax collector /treasurer Carol Trexler since at least March 7, 2002. Steckel & Stopp, Esquire Crest Abstract Company 4331 Route 309, P.O. Box 216 4457 Crackersport Road Schnecksville, PA 18078 -0216 Allentown, PA 18104 Imperial Abstract Company Commerce Settlement Services 1425 Hamilton Street 7540 Windsor Drive, Suite 50 Allentown, PA 18102 Allentown, PA 18195 Advanced Abstract Penn Title 33 South Seventh Street 3015 College Heights Blvd Allentown, PA 18101 Allentown, PA 18104 Traditions Settlement Services Real Estate Settlement Services Trexler, 03 -047 Page 8 1611 Pond Road, Suite 200 Allentown, PA 18104 -2258 Tallman, Hudders & Sorrentino 1611 Pond Road, Suite 300 Allentown, PA 18104 -2258 Hometown Abstract, Inc. 3021 College Heights Blvd. Allentown, PA 18104 North American Abstract Co. 5925 West Tilghman St., Suite 90 Allentown, PA 18104 Turtle Abstract Company 2310 Walbert Avenue, Suite 103 Allentown, PA 18104 207 North 19 Street Allentown, PA 18104 Buyers Settlement Services, Inc. 207 North 19 Street Allentown, PA 18104 Hamilton Abstract Co. 207 North 19 Street Allentown, PA 18104 Associated Abstract 4101 Tilghman Street Allentown, PA 18104 Realty Abstract, Inc. 779 Third Street Whitehall, PA 18052 26. Trexler was entitled to receive a fee of $10.00 per tax certification provided as a result of township ordinances 500 and 764. a. Since March 7, 2002, Trexler regularly received a fee of $20.00 per tax certification. 27. Business records of companies and law firms who obtained tax certifications from Trexler confirm the following annual amounts paid directly to Trexler since January 2002, in excess of the authorized amount: 2002 2003 2004 TOTAL $ 2,420 $ 3,630 $ 1,650 $ 7,700 28. South Whitehall Township sewer and water certification numbers mirror real estate tax certifications for property transactions which result in a title transfer. a. Not all title, abstract and /or other closing agencies require a water and sewer certification on a mortgage refinancing since no property title ownership is changing. b. Water and sewer certifications are required by all of these companies when property title /ownership changes. c. Sewer and water certifications are issued by property address. 29. South Whitehall Township's water and sewer certification numbers should equal or exceed the number of real estate tax certifications that were issued since January 2002. a. Township staff confirmed that water and sewer certificates are issued in conjunction with tax certifications issued as part of real estate transactions. 1. Water and sewer certifications are not usually issued as part of mortgage refinancing. b. Real estate tax certifications should equal or exceed the number of water and sewer certificates issued annually due to mortgage refinancing which does not require the water /sewer certifications. c. Township staff confirm that there are no instances when sewer and water Trexler, 03 -047 Page 9 certifications should exceed the number of tax certifications. 30. Business records of South Whitehall Township reflect the following number of sewer and water certifications issued since January 2002. a. 2002: 475 b. 2003: 586 c. 2004 to August 19: 352 31. South Whitehall Township sewer and water certification issued since January 2002 have exceeded confirmed real estate tax certifications by 541. The following details the difference between township sewer /water certifications and real estate tax certifications issued by Trexler. a. Year Sewer /Water Real Estate Difference 2002 475 321 154 2003 586 382 204 2004 (to August 19) 352 169 183 541 32. At a rate of $20.00 per certification, this creates additional income of $10,820 (541 x $20) and an additional unauthorized amount of $5,410.00. 33. Trexler received the $20.00 fee for tax certifications until early April 2004. III. DISCUSSION: Respondent, Carol Trexler, (also referred to herein as "Respondent" or "Trexler "), has at all times relevant to these proceedings been a public official subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Act is referred to herein as the "Ethics Act." The allegation is that Trexler, as Treasurer /Tax Collector for South Whitehall Township, Lehigh County, violated Section 1103(a) of the Ethics Act when she used the authority of her office for a private pecuniary gain by charging tax certification fees in excess of the fee approved by the township board of commissioners and retained the additional fees for personal use. 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 term "conflict of interest" is 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 Trexler, 03 -047 Page 10 or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" 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. 65 Pa.C.S. §1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. As Treasurer /Tax Collector for South Whitehall Township ( "Township "), Trexler is responsible for collecting real estate and per capita taxes for the Township, Parkland School District ( "School District "), and Lehigh County ("County "). The Township, School District and County set the compensation for the Tax Collector/Treasurer. One of the functions associated with the position of Tax Collector is to provide real estate tax certifications to individuals, title /abstract companies or law firms. Tax certifications are required by title /abstract companies as part of real estate closing documents and are paid for by closing companies as a cost of doing business. Upon request, the Tax Collector researches collection records and provides a certification indicating whether the real estate taxes have been paid on the subject property. The Tax Collector charges a fee for providing tax certifications, which fee is set by ordinance or resolution of the municipality. At its February 19, 1991, meeting, the Township Board of Commissioners unanimously approved Ordinance No. 500, which established a fee of $10.00 for tax certifications (see, Finding 7). That authorized fee amount remained constant throughout the time period under review. From January 1, 2002, to March 7, 2002, Trexler charged $10.00 for each tax certification consistent with Ordinance No. 500 of 1991. On or about March 7, 2002, Trexler approached Township Manager Gerald Gasda ( "Gasda ") to discuss increasing the tax certification fee. Gasda was not aware that Trexler would need authorization from the Board of Commissioners to increase the tax certification fee and therefore did not object to Trexler taking such action. That same day, Trexler distributed a memorandum to companies that had ordered real estate tax certifications informing them that the fee for tax certifications was now $20.00. After Trexler circulated her March 7, 2002, memorandum, Gasda and the Township Commissioners started to receive complaints from title /abstract companies regarding the $20.00 tax certification fee, prompting Gasda and the Township Solicitor to conduct an in- depth review of the matter. Initially, Gasda was unable to find any authorization for the township tax collector to charge a tax certification fee because Ordinance 500 of 1991 was in archives and not in the Township's codified ordinance book at the time of Gasda's Trexler, 03 -047 Page 11 search. Gasda was only able to determine that prior tax collectors had charged $10.00 per tax certification. On May 22, 2002, Gasda sent Trexler a memorandum informing her that he had been advised by the Township Solicitor that based upon a prior case, she was not authorized to charge a tax certification fee because there was no ordinance authorizing same. Gasda advised Trexler that she could ask the Board of Commissioners to enact an ordinance authorizing her to charge a tax certification fee (see, Finding 18). In response to Gasda's May 22, 2002, memorandum, Trexler requested that an ordinance be passed as soon as possible to authorize a fee of $20.00 for each certification (see, Finding 19). On September 4, 2002, the Township Board of Commissioners, being unaware of Ordinance No. 500 of 1991, passed Ordinance No. 764 of 2002 re- establishing the tax certification rate of $10.00 per tax certification (see, Finding 23). Nevertheless, Trexler continued to charge $20.00 per tax certification. From March 7, 2002, until early April 2004, Trexler continuously charged and received $20.00 for each tax certification issued (see, Findings 26, 33). Sewer and water certifications, which are issued by the Township's administrative staff without any involvement by the Treasurer /Tax Collector, are required by title /abstract companies and other closing agencies for property transactions that result in title transfers. There are no instances where the number of sewer and water certifications issued should exceed the number of tax certifications issued (see, Finding 29(c)). During 2002, 2003, and part of 2004, 1,413 sewer /water certifications were issued by the Township administrative staff: 475 in 2002; 586 in 2003; and 352 from January through August 19, 2004. Based upon the Stipulated Findings, this leads to the necessary conclusion that at least 1,413 tax certifications were issued at or about the same time (see, Findings 29(b), (c)). Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: "3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a), of the Public Official and Employee Ethics Law, 65 Pa. .S. § 1103(a) occurred in relation to Trexler charging and retaining tax certification fees in excess of the fee approved by the township board of commissioners during the period from September 4, 2002, through April 2004. b. Trexler did not violate the Public Official and Employee Ethics Law regarding excess tax collection certification fees prior to September 4, 2002, as she believed that all such fees collected had been authorized. 4. Trexler agrees to make payment in the amount of $10,000 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. Trexler, 03 -047 Page 12 5. Trexler agrees to issue tax certifications at the rate authorized by township ordinance and to cease and desist from collecting any amounts in excess thereof. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further." Consent Agreement, paragraphs 3 -6. In considering paragraph 3(a) of the Consent Agreement quoted above, it is clear that the elements for a violation of Section 1103(a) of the Ethics Act have been established. Trexler charged and retained tax certification fees in excess of the fee approved by the Township Board of Commissioners during the period from September 4, 2002, through April 2004. But for the fact that Trexler was the Township Tax Collector /Treasurer, she would not have been in a position to charge and collect fees for real estate tax certifications during that time. Such uses of authority of office resulted in a private pecuniary benefit to Trexler consisting of tax certification fees in excess of the $10.00 rate established by Township Ordinance. The pecuniary benefit was private because there is no authorization in law for a Township Tax Collector /Treasurer to charge tax certification fees in excess of the amount authorized by the municipality. Accordingly, we conclude that the application of the law to the facts before us supports a determination that a violation of Section 1103(a) of the Ethics Act occurred in relation to Trexler charging and retaining tax certification fees in excess of the fee approved by the Township Board of Commissioners during the period from September 4, 2002, through April 2004. The resulting private pecuniary benefit was in excess of $10,000. We shall now consider paragraph 3(b) of the Consent Agreement quoted above. Based upon the Stipulated Findings, it would appear to be the view of the parties that prior to September 4, 2002, Trexler, being unaware of the existence of Ordinance No. 500 of 1991, and relying upon her March 7, 2002, conversation with Gasda, believed that she was authorized to charge $20.00 per tax certification. However, Trexler is presumed to know the law. We will treat paragraph 3(b) of the Consent Agreement as a non pros by the Investigative Division within the context of a comprehensive settlement of this case. Therefore, we find no violation of the Ethics Act as to the excess tax certification fees charged by Trexler prior to September 4, 2002, based upon a non pros by the Investigative Division. We shall now consider the parties' recommendation as to restitution. (See, 65 Pa.C.S. § 1107(13)). In settlement of this matter, Respondent has agreed to make payment in the amount of $10,000.00 to the Commonwealth of Pennsylvania, with such payment to be forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. In considering the above recommendation, the $10,000.00 of restitution proposed by the Consent Agreement is less than the total private pecuniary benefit that Respondent received from the aforesaid violation of Section 1103(a) of the Ethics Act, but that amount has been agreed to by both parties in the context of a settlement. Finally, Paragraph 5 of the Consent Agreement quoted above includes a requirement that Respondent Trexler agrees to issue tax certifications at the rate authorized by Township Ordinance and to cease and desist from collecting any amounts in Trexler, 03 -047 Page 13 excess thereof. Given that Trexler continued to charge $20.00 per tax certification despite the passage of Ordinance No. 764 of 2002, we believe that the inclusion of this recommendation of the Consent Agreement is necessary. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Trexler is directed to pay restitution in the amount of $10,000.00 to the C ommonwealth of Pennsylvania through this Commission by no later than the thirtieth (30`") day after the mailing date of this Order. Trexler is further directed to cease and desist from collecting any tax certification amounts in excess of the rate authorized by the Township. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Carol Trexler ( "Trexler "), as Treasurer /Tax Collector for South Whitehall Township ( "Township "), Lehigh County, was at all times relevant to these proceedings a public official subject to the provisions of the Ethics Act. 2. Trexler violated Section 1103(a) of the Ethics Act when she charged and retained tax certification fees in excess of the fee amount approved by the Township Board of Commissioners during the period from September 4, 2002, through April 2004. 3. Trexler did not violate Section 1103(a) of the Ethics Act regarding excess tax certification fees charged prior to September 4, 2002, based upon a non pros by the Investigative Division. In Re: Carol Trexler ORDER NO. 1353 File Docket: 03 -047 Date Decided: 2/28/05 Date Mailed: 3/14/05 1 Carol Trexler ( "Trexler "), as Treasurer /Tax Collector for South Whitehall Township ( "Township "), Lehigh County, violated Section 1103(a) of the Ethics Act when she charged and retained tax certification fees in excess of the fee amount approved by the Township Board of Commissioners during the period from September 4, 2002, through April 2004. 2. Trexler did not violate Section 1103(a) of the Ethics Act regarding excess tax certification fees charged prior to September 4, 2002, based upon a non pros by the Investigative Division. 3. Per the Consent Agreement of the parties, Trexler is directed to make payment in the amount of $10,000.00 to the Commonwealth of Pennsylvania through this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 4. Per the Consent Agreement of the parties, Trexler is directed to cease and desist from collecting any tax certification amounts in excess of the rate authorized by the Township. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair