Local Attorney Weighs in on the Recent Actions of Tredyffrin Supervisors Lamina, Kampf, Olson and Richter . . . and Will Bring it to the Supervisors Meeting Tonight!

Paoli Attorney John Petersen sent the following email this morning to Supervisors Lamina, Olson, Kampf, Richter, Donohue, Kichline and DiBuonaventuro, Township Solicitor Tom Hogan and Township Manager Mimi Gleason. Although I was copied on the email, I assumed that this was priveleged information and not intended for  public consumption.  However, I have received a call from John Petersen stating that he intended the email as public record and asked that I post it on Community Matters.  The following is an unedited email that details some of John’s thoughts on the recent actions of some of our elected officials; he plans to deliver his message at tonight’s meeting. 

I am hopeful that at the meeting tonight we will see recent Board decisions examined (and corrected) and that we can look forward to our elected officials steering the township under the rules of the Home Rule Charter and the Administrative Code of Pennsylvania.  Tonight’s meeting is important to all residents, please come to the meeting at 7:30 PM at the Township Building or watch it from home.

John Petersen’s email from 2-08-10:

http://www.celdf.org/HomeRule/PennsylvaniaandHomeRule/tabid/116/Default.aspx

Pretty simple… Authority in the HRC (Home Rule Charter) derives from the voters.

“The basic concept of home rule is relatively simple. The authority to act in municipal affairs is transferred from state law, as set forth by the General Assembly, to a local charter, adopted and amended by the voters.”

This is why changes to the home rule charter have to be a placed on the ballot.

Home rule is pretty broad:

“Municipalities shall have the right and power to frame and adopt home rule charters… A municipality which has a home rule charter may exercise any power to perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.”

We pretty much knew this. The key of course, is if it is stated in the home rule, they MUST follow it.

OK then..How do we get from the Home Rule Charter to the Administrative Code:

The HRC is like our constitution – and is ratified by the voters. In Section 212 B and C, the HRC state:

B. Adopt an Administrative Code defining the organization and assignment of duties and responsibilities of
Township officers and employees.

Before going further, the oath that each supervisor took pledged to uphold the terms and conditions of the US Constitution, the PA Constitution and the laws of the township – which includes both the HRC and the Administrative Code.

Now… if you go to the Administrative Code, the first section, Section C – references the HRC.  In very real terms, the HRC specifies the what. The Administrative Code specifies the How. In any case, the Code specifies the parameters upon which something in the HRC can be carried out. So with that, let’s go to relevant section in the Code re: escrows (Section 181-34 G)

As the work of installing the required improvements proceeds, the party posting the financial security may request the Board of Supervisors to release or authorize to be released, from time to time, such portions of the financial security necessary for payment to the contractor or contractors performing the work. Any such requests shall be in writing addressed to the Board of Supervisors, and the Board shall have 45 days from receipt of such request within which to allow the Township Engineer to certify, in writing, that such portion of the work upon the improvements has been completed in accordance with the approved plans. Upon such certification, the Board shall authorize release by the bonding company or lending institution of an amount as estimated by the Township Engineer fairly representing the value of the improvements completed. The Township Engineer, in certifying the completion of work for a partial release, shall not be bound to the amount requested by the applicant, but shall certify to the Board his independent evaluation of the proper amount of partial releases. The Board may, prior to final release at the time of completion and certification by the Township Engineer, require retention of 10% of the estimated cost of the aforesaid improvements as per § 181-34D of this chapter.

———————–

Just looking at the first sentence, sure enough, the word [may] appears. However, it is followed by an [or]. In this case, we know the club did not request. The club didn’t authorize the release either. Therefore, you never get to the second sentence. But, even if we did get to the second sentence, it states:

Any SUCH requests shall be in writing….The problem here is a bit of in-artful drafting of the Home Rule Charter. Most definitely, the word [may] has the connotation that something may not be required. The word [may] should probably be replace with [shall either]. However, in this context, the focus on the word [may] alone is to ignore the context of the first and second sentences. Even if we were to concede the requirements set forth in the first sentence which go to initiating the process, once the process has been initiated, there must be a writing. And as we now know, there was no writing.

Using the language within the four corners of the Home Rule Charter and the Code, there is no question that a violation has occurred. And therefore, the vote was void ab initio.By analogy, consider when Bill DeHaven resigned and the work that had to be expended to try to stay within the framework of the HRC. Technically, that didn’t happen. BUT – a compromise that facilitated due process and notice was achieved. Nothing of the kind occurred here.

Then there is the agenda – Section C-16 – which is the HRC section in the Admin Code:

The Board shall cause to be prepared for each regular meeting an agenda of matters to be considered by the Board at such meeting, including pertinent background information, which agenda, along with a copy of financial and other activity reports, shall be distributed to the public at the start of the meeting. The agenda shall be available at least eight hours prior to the start of the meeting.

We now know that the Supervisor Lamina was deliberately indifferent to placing the matter on the agenda. Then of course, there are the cases that are posted on Pattye’s blog.

—————————-

You see, I don’t even need to get to Bob’s email or any of the comments that target Democrats as a political group under color of local law. I can reference that email, comments and newspaper qjuotes. That however, ratchets things up into the federal arena. Seems like we may very well have Section 1983 violations here – in addition to some First Amendment and Equal Protection Clause issues.

——————————

Bottom line, at the very least, Bob and Paul need to step down from their leadership positions. Ideally, they would simply resign altogether from the board. Warren and EJ should follow suit. But – at the end of the day, the leadership is responsible. That however, does not remove the culpability that Warren and EJ have.

Otherwise, I can almost guarantee the Kampf, Lamina, Olson and Richter – along with the township – will be sued under the aforementioned grounds.

I would rather not see tonight turn into a circus.

Regards,

John V. Petersen, Esq.
 

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10 Responses

  1. Just to set the record straight, although I am a lawyer, I am on the inactive list in Pennsylvania as I no longer practice law. The open letter I sent to the BOS was in my capacity as a citizen who has a legal background but is not a practicing lawyer.

    The goal of making this letter open was to set forth , in legal terms, how and why what the block of 4 did was in violation of the HRC. Michelle kichline, in her presentation, outlined with particularity, why the contemplated action was not proper. The block of 4, by and through Paul Olson, didn’t have any legal basis for their decision. Much to their dismay, the phrase “Sidewalks to nowhere “, while it is an opinion, does not qualify as legal rationale.

    Tonight, I will ask each supervisor that voted in favor of the deal the rationale for their decsion.

  2. Now we’re talking! John, you are making a lot of sense. I want to see some results tonight. I sure hope that Tom Hogan won’t be MIA for tonight’s meeting!

  3. Excellent email John.

    Thanks very much to John and Pattye for your efforts to keep the community informed and engaged.

    I sincerely hope that there is a big turnout tonight. I can’t imagine why every democrat in the township wouldn’t be there demanding action re Olson’s comments after Ms. Jamieson spoke at the meeting.

    And a message to Paul, Bob, Warren & EJ: Make no mistake, there will be Republicans there too, and we are pissed and embarrassed by your actions also.

    • There is no reason why every Republican shouldn’t be there as well – an issue of abuse of power is one that transcends party lines. See you all there.

  4. John’s analysis is spot on. LORK had a chance to do the right thing, let it not be said that they weren’t given a fair opportunity to correct their conduct. Unfortunately, I do not see this happening. I am looking forward to a good meeting tonight where individuals will be held accountable for abusing their positions that we have elected them to.

  5. Can someone call his firm to see who is representing Tredyffrin tonight? No surprises?

  6. With Paul Olson away (?), not much can happen I assume?

  7. Okay — I went to the school meeting — gave up at 10 pm but I think it went well . Lots of people talked, including the union president (there didnt’ seem to be any hesitation to let her talk) . THe guy running the meeting (sorry — dont’ know the name) seemed very angry after the union president talked and said as much — suggesting that it is a negotiating issue and if they are not willing to talk over a table, the board knows the offer is not binding. Pretty much what several people have said here.
    So I came home and hoped to either see the BOS on TV or read about it here….now I guess I have to go to bed and get up to read in the morning. Ray spoke as I was leaving, so I’m sure he will have a full report.

    • >>Okay — I went to the school meeting

      Well Sarah… you missed a lively meeting. I’ll wait for Pattye’s post about the meeting before posting my substantive comments. Suffice it to say that we have two guys in Lamina and Kampf whose intellectual firepower does not have the capacity to substantively defend a point. Instead, they argue by means of putting up straw-man attacks. Bottom line, when one side defends by attacking the other side, you know they don’t have any rounds in the chamber. The good news is that the two of them confirmed the fact that they read the blogs.

      The only other thing I will say is that I appreciated EJ’s response to my direct question. She didn’t run and hide. She gave an answer. I didn’t agree with the reasoning. Nevertheless, I appreciated her response. She was in a tough spot and I thought of the 3 – she did the best.

      Until Pattye’s post on the meeting….

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