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HomeMy WebLinkAbout06-578 KauffmanBambie Kauffman P.O. Box 184 Spring Mills, PA 16875 Dear Ms. Kauffman: ADVICE OF COUNSEL August 16, 2006 06 -578 This responds to your letter of July 18, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 § 1101 et seq., imposes any prohibition or restrictions upon a township secretary /treasurer from simultaneously working part -time for the tax collector for that township. Facts: You are the Secretary /Treasurer for Gregg Township ( "Township "). You ask whether it would be a conflict of interest under the Ethics Act for you to simultaneously work part -time for the Township's Tax Collector. You state that the three Township Supervisors and the Township Solicitor do not believe that it would be a problem for you to simultaneously serve in both positions. It is administratively noted that the Township is a township of the second class. 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. As the Secretary/Treasurer for the Township, you are a "public official /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. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities Kauffman, 06 -578 August 16, 2006 Page 2 (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 member of his immediate family, or a business with which he or a member of his immediate family is associated. Even when there is no statutorily - declared incompatibility, if 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 Johnson, Opinion 86 -004, the Commission considered the issue of whether a borough tax collector could simultaneously serve as the borough treasurer. The Commission concluded that although the Borough Code did not expressly declare incompatible the positions of borough tax collector and borough treasurer, the positions Kauffman, 06 -578 August 16, 2006 Page 3 were inherently incompatible and simultaneous service in the positions thus presented a conflict of interest under the Ethics Act. The Commission reasoned that the tax collector was specifically accountable to the treasurer in a "check and balance" system designed to maintain appropriate accounting of all funds due the municipality and received by it. The Commission determined that where one individual would simultaneously serve in both positions, the check and balance system and the procedure for accountability would be lost, in that one individual could not be accountable to himself in both positions. The Commission noted that as treasurer, the individual would be reviewing his own work and holding himself accountable as tax collector. The Commission concluded that this presented the type of conflict of interest that the Ethics Act was intended to prevent. The Commission noted that its conclusion as to the inherent incompatibility of the positions was in accord with prior judicial precedent declaring that the position of tax collector in a township of the second class was inherently incompatible with the position of township treasurer. See Commonwealth ex. rel. Morris v. Graham, 70 Pitts. L.J. 154 (1921) (concluding that the positions of tax collector and treasurer for a second class township were incompatible in that if the same person held both positions at the same time, the public would not be afforded the opportunity to know whether the tax collector was complying with the statutory requirement to pay over all monies collected at regular intervals). this case, you seek to work part -time for the Township Tax Collector rather than to serve as the Township Tax Collector. However, the same concerns raised by the Commission in Johnson with respect to the loss of accountability procedures when a borough treasurer would simultaneously serve as borough tax collector would be equally applicable when a secretary /treasurer for a second class township would simultaneously work for the township's tax collector. Therefore, you are advised that if you would simultaneously serve as the Secretary /Treasurer for the Township and work part -time for the Township's Tax Collector, 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 the Township's Secretary /Treasurer and work part - time for the Township Tax Collector. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As the Secretary/Treasurer for Gregg Township ( "Township "), you are a "public official /public employee" subject to the provisions of the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as Secretary/Treasurer of the Township and work part -time for 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 Kauffman, 06 -578 August 16, 2006 Page 4 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