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.

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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.

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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.

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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.
 

Home Rule Charter Violations . . . Legal Cases from Philadelphia and Erie County

I received fascinating information (see below) from JudgeNJury citing 2 examples of cases of violations to Pennsylvania’s Home Rule Charter.  It is reassuring to know that others have fought the battle (and won) using the basis of procedures contained in the Home Rule Charter.  This supports the notion that a declaratory judgment action rendering the St. Davids Golf Club escrow vote null and void would be successful.  My question is would an individual have to file (and win) a declaratory judgment to force the supervisors to follow the Home Rule Charter.  If the Home Rule Charter states that supervisors must publicize all agenda items at least 8 hours in advance, shouldn’t that be followed?  Why do we have to spend time and money to force Home Rule Charter procedure to be followed?

We know that Chair Lamina believes, and states to the Main Line Suburban Life newspaper, that  “Under our current rules, any supervisor is free to offer any motion he chooses at any time, . . . It is not unusual at all for board members to offer unpublished motions during discussions at our meetings and I believe it’s reasonable and appropriate for our board to have this flexibility where needed in its proceedings . . .” 

I would hope that with review of the Home Rule Charter, counsel from the township solicitor and the citing of Pennsylvania cases, that Chair Lamina and Supervisors Kampf, Olson and Richter would acknowledge their ‘miss-step’.  I think that it would bode far better for them and the residents of this township, that our elected officials could just ‘fix’ their mistake without requiring a declaratory judgment action.  Perhaps township solicitor Tom Hogan could review the procedures contained within the Home Rule Charter and offer guidance to our Board of Supervisors.  Based on the actions taken on January 25, and the prevailing attitude of Chair Lamina, no motion is off-limits, including those not publicized. 

Please take the time to review these cases below provided by JudgeNJury:

JudgeNJury, on February 6th, 2010 Said:  

Here are two cases worth reading. Neither is directly on point, but they both provide some flavor:

City of Philadelphia v. Weiner (http://scholar.google.com/scholar_case?case=15768620678301027768&q=550+A.2d+274&hl=en&as_sdt=800000000002): Philadelphia’s Home Rule Charter contains a provision requiring the City to give public notice when it intends introduce a bill. The Philadelphia City Council introduced a bill to amend the City’s real estate transfer tax. However, City Council did not give public notice of the new proposed tax rate contained in the bill and the new rate never was discussed at a public hearing before the bill was adopted. Several parties, including a consumer group and an association of realtors, sued to enjoin the City from enforcing the bill because City Council did not follow the procedures set forth in the City’s Home Rule Charter. The trial court granted the injunction, and, in the opinion cited above, the appeals court affirmed the injunction.

Here, like the City of Philadelphia in the Weiner case, the Board of Supervisors did not follow the procedures in its Home Rule Charter. Specifically, the Township did not include the escrow motion on the agenda for the January 25 Board meeting. So the Weiner case would seem to support an argument that the Township can be enjoined from acting on the motion (assuming it has not already).

County Council v. County Executive (http://scholar.google.com/scholar_case?case=3165189562536297706&q=600+A.2d+257&hl=en&as_sdt=800000000002): The Erie County Home Rule Charter (apparently – the case is less than crystal clear) contained a provision requiring the County to conduct a performance review of any County employee before it could increase that employee’s salary. The Erie County Executive increased the salary of a County employee without conducting a performance review. The Erie County Council brought a declaratory judgment action seeking to declare the Executive’s action null and void because it violated the Home Rule Charter. A month after Council filed its suit, the employee whose salary was increased retired. Arguing that the retirement made the case moot, the Executive asked the trial court to dismiss the case, which it did. The appeals court, in the cited opinion, upheld the dismissal.

The ultimate result of the Erie County case, obviously, is not helpful from the perspective of those who would like to challenge the Board’s actions here (though the mootness issues in the Erie County case seem much different than any that might arise here, so the result itself may not be that significant). What is significant, however, is that the case suggests that bringing a declaratory judgment action to declare null and void an action taken in contravention of a Home Rule Charter is the proper procedure in this situation