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HomeMy WebLinkAbout06-573 ShifferWendy Bogart Shiffer 1212 Christopher Street Stroudsburg, PA 18360 Dear Ms. Shiffer: ADVICE OF COUNSEL July 20, 2006 06 -573 This responds to your letter of June 22, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., imposes any prohibition or restrictions upon an accounts payable technician employed by a county controller's office from simultaneously serving as a tax collector for a township in that county. Facts: You are employed as an Accounts Payable Technician for the Monroe County Controller's Office ( "Controller's Office "). You seek an advisory from the State Ethics Commission based upon the following submitted facts. In your current position with the Controller's Office, your duties involve processing payments for expenses incurred by Monroe County. The Controller's Office is responsible for auditing all tax collectors annually with respect to County tax collections. These audits are performed by auditors in the Controller's Office and in your position, you are not involved at all in the auditing process. You have been appointed to serve as the Tax Collector for Stroud Township ( "Township ") in Monroe County effective July 1, 2006. Your husband is the District Justice for the Township, and he states that he has never had any dealings with the Tax Collector for the Township. Based upon the foregoing submitted facts, you ask whether it would be improper for you to serve as the Township's Tax Collector while employed as an Accounts Payable Technician with the Controller's Office. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. Shiffer, 06 -573 July 20, 2006 Page 2 In the instant matter, you have not submitted an official job description for your current position with the Controller's Office. Without the job description, it will be assumed for the purposes of this Advice that as an Accounts Payable Technician for the Controller's Office, you are considered to be a "public employee' 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. As an 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. § 1103(a). The following terms that pertain 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 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 question. 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 Shiffer, 06 -573 July 20, 2006 Page 3 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, McCain, Opinion 02 -009. Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). In Nelson, Opinion 85 -009, the State Ethics Commission considered the question of whether a senior account clerk in a county controller's office could simultaneously serve as a borough tax collector in that county. The Commission noted that the duties of the senior account clerk consisted of recording the receipts of funds collected, recording information regarding payments made to vendors, assisting in the balancing of the revenue and expenditure accounts, and entering data regarding the disbursements of funds collected. The Commission referenced the functions of the Office of County Controller as they appear in the County Code: §4901. Functions of the controller The controller shall have a general supervision and control of the fiscal affairs of the county and of the accounts and official acts of all officers or other persons who shall collect, receive or distribute the public moneys of the county, or who shall be charged with the management or custody thereof. He may at any time require from any of them, in writing, an account of all moneys or property which may have come into their control. He shall, immediately on the discovery of any default or delinquency, report the same to the commissioners and the court of common pleas of the county, and shall take immediate measures to secure the public moneys or property and remove the delinquent party, if in office and not removed by the commissioners. 16. PS. §4901. The Commission determined that even though the senior account clerk had no duties in relation to borough taxes, there were a number of concerns with that employee simultaneously serving as a borough tax collector. The Commission first expressed concern that there was the potential for the employee to have access to confidential information and personnel that might benefit her as a borough tax collector. The Commission then analyzed in detail the responsibility of the controller regarding the proper accounting of funds due the county and expressed concern that the employee would be subject to review by the controller not only as an employee of the controller but also in relation to her functions as an elected official. The Commission also noted that a borough tax collector receives compensation in the form of a percentage of the taxes collected and expressed concern that the Controller's office in performing functions relating to the disbursement of this compensation may be called upon to make decisions that would affect the employee's compensation as a borough official. After expressing other concerns, the Commission concluded that there was an inherent incompatibility and resulting conflict between being an employee in the county controller's office and serving as a borough tax collector in the same county. In applying the above Commission precedent to the facts that you have submitted, you are advised that if you would simultaneously serve as an Accounts Payable Technician for the Controller's Office and as the Tax Collector for the Township, there would be an inherent conflict under Section 1103(a) of the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as Shiffer, 06 -573 July 20, 2006 Page 4 an Accounts Payable Technician for the Controller's Office and as the Tax Collector for the Township. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As an Accounts Payable Technician for the Monroe County Controller's Office ( "Controller's Office ") with responsibilities including the processing of expense payments, you would be considered a "public employee" subject to the provisions of the Public Official and Employees Ethics Act Ethics Act. As an appointed Tax Collector for Stroud 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 an Accounts Payable Technician for the Controller's Office and as the Tax Collector for the Township. 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 requester 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