By Joe Pinchot/Herald staff writer
June 20, 2007 01:53 pm
—
Each time Michael M. Cooney’s unemployment compensation case has been appealed, the previous decision has been reversed.
Unfortunately for Cooney, 58, of 142 Harvard St., Grove City, the latest ruling — by Commonwealth Court — went against him.
A former Grove City councilman, Cooney said he was not surprised by the decision. Borough legal counsel David Ristvey seemed to select facts to support his conclusion at oral arguments before a three-judge panel, and the judges seemed confused, he said.
Cooney was Grove City’s elected tax collector — primarily for real estate tax — and appointed receiver of taxes for earned income tax from 2002 through 2005. He also collected taxes for Grove City School District and Mercer County.
There was no job description for receiver of taxes. The borough paid him a 5-percent commission, gave him some training, and paid for his office supplies, forms and postage, Commonwealth Court said.
Cooney did not participate in the borough’s health or pension plans and did not accrue leave time. He had his own office, rented from a private landlord, and paid his own rent and utilities.
When he was voted out of office in 2005, Cooney applied for unemployment benefits in connection with his former job as receiver of taxes. The application was granted, then reversed by a referee.
Unemployment Compensation Board of Review reinstated the benefits, concluding that the borough failed to prove Cooney was self-employed. Borough officials also restricted Cooney’s outside work and controlled his handling of non-resident fees, UCBR said.
When an issue arose as to when unclaimed earned income tax money should be sent to home taxing authorities, borough officials ordered him to keep the money until it was requested, Cooney said.
A message left with borough council President George Pokrant was not returned.
Cooney also asked borough solicitor Timothy Bonner for permission to perform outside work, such as preparing income tax returns, but was denied. Cooney said he has a copy of a letter from Bonner saying he cannot prepare tax returns.
Bonner said he could not respond to the statement because of attorney-client privilege.
The borough appealed UCBR’s ruling to Commonwealth Court arguing that UCBR relied solely on inadmissible hearsay evidence in concluding the borough refused to allow Cooney to perform outside work.
The borough also claimed Cooney was free of the borough’s control, and that he was engaged in an independently established trade.
A three-judge panel of Commonwealth Court agreed with both borough officials.
Cooney, who did not file a brief in the Commonwealth case, presented no evidence to show that the solicitor acted as the agent of the borough, the court said.
“A borough solicitor has a statutory duty to furnish legal opinions in writing upon questions of law submitted by a borough council, its committees, the mayor or the head of a department in their official capacities,” said Judge Rochelle S. Friedman. “However, absent express or implied authority, a borough solicitor does not have any authority to restrict the outside employment of an appointed official.”
Concerning the issue of alleged borough control, Cooney claimed borough councilmen ordered him to retain unrequested non-resident wage taxes as had been past practice — more than $2 million since 1974 — when the Local Tax Enabling Act says “political subdivisions shall not be required to request the officer to distribute the funds collected.”
Councilman ordered Cooney to ignore the law, Cooney said.
“However, the borough had no authority to do so,” Judge Friedman said. “Thus, although it appeared to claimant (Cooney) that the borough controlled the manner in which claimant handled non-resident tax monies, the LTEA actually controlled claimant’s performance of those duties.”
Bonner also declined to comment on the tax allegation.
The annual amount of unclaimed tax money has been more than $90,000 from 1997 to 2003, the last year for which figures are available, 10 to 15 percent of the EIT collected. The borough has accrued more than $500,000 in interest since 1974.
Although it appears that Cooney, whose wife, Beth, also is a former council member, relied on the advice of borough officials to his detriment, he said he never considered seeking his own legal counsel.
“I’ve known and respected the solicitor since the mid-’90s,” he said. “I was told he was the person to go to.”
Cooney said he does not have to pay back the unemployment compensation payments he has received. He got $485 a week from Jan. 14, 2006, through May 6, 2006, a total of $8,245. If he applies again, the benefits he has already received will be deducted from future payments.
He also said he is considering his options in response to the Commonwealth Court decision.
Copyright © 1999-2008 cnhi, inc.