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HomeMy WebLinkAbout06-609 PetermanLynette Peterman 350 East 12 Avenue Homestead, PA 15120 Dear Ms. Peterman: ADVICE OF COUNSEL December 14, 2006 06 -609 This responds to your letter of November 4, 2006, 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. § 1101 et seq., would impose any prohibitions or restrictions upon a borough council member with regard to simultaneously serving as a deputy tax collector for the borough. Facts: You are a Council Member for the Borough of Homestead ( "Borough ") in Allegheny County. The Borough's elected Tax Collector has asked you to become her Deputy Tax Collector. As Deputy Tax Collector, your duties would involve assisting in collecting taxes and filling in for the Tax Collector if she would be unavailable. You state that you are fully aware that because you are compensated as a Borough Council Member, you would not be able to receive any additional monies from the Borough for assisting in tax collections. However, the Tax Collector has stated that she would pay you directly for services that you would perform on behalf of her office. You request an advisory as to whether there would any type of conflict if you would simultaneously serve as a Borough Council Member and Borough Deputy Tax Collector. You assert that there is nothing in the Borough Code that would specifically prohibit simultaneous service in the positions in question, but you seek further clarification under the Ethics Act. 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. Peterman, 06 -609 December 14, 2006 Page 2 As a Borough Council Member, 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 Peterman, 06 -609 December 14, 2006 Page 3 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. 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act requires a public official /public employee with a conflict of interest to abstain and to publicly disclose the abstention and the reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. 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. In this case, the applicable statute to be reviewed is the Borough Code. The Borough Code provides, in pertinent part, as follows: § 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 member of council 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). In considering the aforesaid relevant provision of the Borough Code, there does not appear to be any prohibition that would preclude you from simultaneously serving as a Borough Council Member and as a Deputy Tax Collector for the Borough. Likewise, based upon the facts that have been submitted, there does not appear to be an inherent conflict under Section 1103(a) of the Ethics Act that would preclude your simultaneous service as a Borough Council Member and as a Deputy Tax Collector for the Borough. (See, e.g., McCain, Opinion 02 -009). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude you from simultaneously Peterman, 06 -609 December 14, 2006 Page 4 serving in the aforesaid positions, but in each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. You are advised that matters before Borough Council that would involve the Tax Collector, you as Deputy Tax Collector, or the office of Borough Tax Collector would generally present conflicts of interest for you and would require your abstention and disclosure. Such matters would include, but would not be limited to, the fixing of compensation for the Tax Collector and any review /oversight as to taxes collected. It is noted that pursuant to Section 5511.25 of the Local Tax Collection Law, 72. P.S. § 5511.25, the Tax Collector must perform various duties including, inter alia: (1) providing to the secretary or clerk of the taxing district (in this case, the Borough) verified statements and reconciled monthly tax collector's reports for taxes collected; and (2) paying over to the treasurer of the taxing district (the Borough) all taxes collected. Because the Borough secretary /clerk and Borough treasurer would perform functions as part of a check - and - balance system as to the submissions of the Office of Tax Collector, you would generally have a conflict of interest in matters that would involve those individuals. See, Bassi, Opinion 86- 007 -R, Woodrinq, Opinion 90 -001, Elisco, Opinion 00- 003, and Confidential Opinion, 05 -004. You would additionally have a conflict of interest as to matters involving any other Borough officials /employees who would review the work of the Office of Tax Collector. Turning to the question of whether you could receive compensation as Deputy Tax Collector, you are advised that the answer to that question hinges upon legal issues under the Borough Code that may not be resolved by the State Ethics Commission. First, it is not clear whether the position of Deputy Tax Collector would be deemed a Borough office or Borough employment position under Section 46104 of the Borough Code quoted above. If the position of Deputy Tax Collector would be considered a Borough office, it would appear that Section 46104 of the Borough Code would prohibit you from receiving compensation for serving as a Deputy Tax Collector. If, on the other hand, a Deputy Tax Collector would be considered an employee of the Borough, it would appear that you could be compensated as Deputy Tax Collector if and only if the Borough population would be less than 3,000. As for your specific inquiry of whether the Tax Collector could pay you where the Borough could not pay you directly, the State Ethics Commission lacks the statutory jurisdiction to answer such a question under the Borough Code. Since the State Ethics Commission does not have the express statutory jurisdiction to interpret the Borough Code, you are generally advised that to the extent Section 46104 of the Borough Code would prohibit you from receiving compensation as a Borough Deputy Tax Collector while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Council Member for the Borough of Homestead ( "Borough ") in Allegheny County, 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 Council Member and Borough Deputy Tax Collector, subject to the restrictions, conditions and qualifications set forth above. To the extent Section 46104 of the Borough Code would prohibit you from receiving compensation as a Borough Deputy Tax Collector while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Lastly, the Peterman, 06 -609 December 14, 2006 Page 5 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 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, Robin M. Hittie Chief Counsel