Home Rule Charter

Perceived or Real Conflict of Interest?

I have been open in my concerns related to political committee people who continue to serve in that capacity once elected to the Board of Supervisors.  Currently Tredyffrin Township has three of the seven supervisors (Michelle Kichline, Evelyn Richter and Kristen Mayock) also serving as committeewoman for the Tredyffrin Township Republican Committee (TTRC).

Once elected, township supervisors are elected to serve all the residents, regardless of their political affiliations.  But by remaining in a political party committee position and serving as an elected official there could exist a conflict of interest — if only in perception.  This is certainly not intended as an indictment on the performance of Kichline, Mayock and Richter as supervisors; I have spoken personally to Michelle and Kristen, voicing my concern over this issue.

Michele has served as a supervisor and now as chair of the Board of Supervisors, without any obvious bias towards the political party for which she is a committeewoman.  However, as previously stated on Community Matters, our neighbor Radnor Township takes away the possibility of conflict (perceived or real) — their Home Rule Charter prohibits public elected officials from serving as political party committee people.

The following editorial in the Main Line Suburban by Jerry Kinkead, a former Tredyffrin Township Republican Committeewoman, supports my position and offers personal insight into what could (and has happened) when the lines of separation between a political committee person and elected official blur.  Kinkead not only believes that the current arrangement in Tredyffrin Township is a conflict of interest but is calling for a change in Tredyffrin’s Home Rule Charter.

Conflict of interest

To the Editor:

Thanks to a local Tredyffrin township blog called Community Matters, I have recently learned that three members of the Tredyffrin Township Board of Supervisors (Kichline, Richter and Mayock) are also elected members of the Tredyffrin Township Republican Committee. I believe this to be a fundamental conflict of interest, which could lead to the blurring of allegiance. I propose that Tredyffrin’s Home Rule Charter be amended to disallow this practice.

Community Matters pointed out that Tredyffrin Township’s Home Rule Charter does not address this issue, but that in the Radnor Township Home Rule Charter there is a prohibition against being an elected political official while, at the same time, holding an elected governmental position, as well as a provision for dismissal or termination of appointment should this prohibition be violated.

In Chester County, during the decade of the 1970s, we had a situation whereby the chairman of the countywide Republican Party was also chairman of the Chester County commissioners, which was seen as a conflict of interest by some. As a result, a group known as the Independent Republicans set out to make changes in the local Republican Party, with one of their most pressing goals being the separation of those two jobs. There was a protracted political struggle over this issue, though the County Republican Committee eventually saw the wisdom of the goal, after the indictment of the county chairman. Subsequently, the local Republican Party bylaws were changed to disallow the holding of those two influential offices by the same person.

In the 1970s case in Chester County, the county commissioner was found to be giving out contracts to people who supported the party financially. He did not follow the rules for bidding contracts and was eventually indicted and sentenced for breaking the law.

In my view, the problem with holding a political position and a governmental position at the same time is that the lines can become blurred, and measures may be supported by a government official that are meant to advance the interests of the political party. At a local level, there are decisions to be made about appointments, issuance of building permits, support of local institutions and the like, which should be made by people whose guiding interest is the government they are a part of, and not the party that they also serve.

I suggest that the three Tredyffrin supervisors who now hold joint offices should resign their positions in the local Republican committee, and I urge the Board of Supervisors to take a look at how to change the Tredyffrin Home Rule Charter to eliminate this clear conflict of interest.

With respect,

JERRY KINKEAD
Tredyffrin resident
Former Tredyffrin Republican Committeewoman
Wayne, PA

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Tredyffrin Township Board of Supervisors; I do solemnly swear . . .

I do solemnly swear . . .

Tonight at 7 PM, Tredyffrin Township will swear in four supervisors to the Board of Supervisors.  Incumbent Paul Olson (R), who narrowly beat his Democratic opponent  Tory Snyder in the general election, begins his new term as the most senior and longest-serving member of the Board of Supervisors.  John DiBuonaventuro (R) will be sworn in tonight for his second term as supervisor.  JD has the distinction of second longest-serving supervisor and ran as an uncontested candidate in the last election.  Mike Heaberg (R) will be sworn in for his first full term as a supervisor, having served on the Board in 2011 as an interim supervisor.  If you recall, Heaberg was appointed to fill the vacated seat of Warren Kampf, who resigned after winning his State House 157 election.  Heaberg won the special election in May; continuing to serve on the Board of Supervisors.

Newly elected to the Board of Supervisors in November’s general election, Kristen Mayock (R) will take her place on the dais among her fellow Republicans.  Kristen’s election to the Board leaves a vacancy on the township’s Zoning Hearing Board.  Supervisor Michele Kichline, also an attorney, served on the ZHB before her election to the Board of Supervisors.  It has been several years since there were three women serving together on the Board – it will be interesting to watch that dynamic at play.

Something else that the women on Tredyffrin’s Board of Supervisors share in common … Mayock, Kichline and EJ Richter are all TTGOP committeewomen.  Two years ago, (January 12, 2010) I wrote an article for Community Matters, “Tredyffrin’s Board of Supervisors – Some are Political Party Committee Members – is this OK?  Radnor Township  Says No for their Commissioners”.  

I have been open in my concerns related to political committee people who continue to serve in that capacity once elected to the Board of Supervisors.  As I stated in 2010, “… supervisors are elected to serve all the residents, and by remaining a committee person for a particular party, I would think that there is an appearance that a political committee person would ‘lean’ in the direction of their party.”

As was the case in 2010, of the seven members of Tredyffrin’s 2012 Board of Supervisors, we once again have three supervisors who are also TTGOP committee members (Kichline, Richter and Mayock).

Although Tredyffrin Township’s Home Rule Charter does not address this subject, neighboring Radnor Township, which also uses Home Rule Charter for their local government, is very clear on the topic and what they perceive is a conflict of interest:

From Radnor Township’s Home Rule Charter:

§ 21.9-904. Prohibitions.

 A. The activities which follow shall be prohibited in the operation of the Township government.

     3. Political Party Office. No Township official elected under this Charter, no appointed official, and no full-time Township employee shall hold any elected or appointed political party office.

Under the penalty section, Radnor’s Home Rule Charter further states:

  B. Violation of any provision of this Section shall constitute grounds for forfeiture of office, termination of appointment, or dismissal.

So . . .  do I expect supervisors Kichline, Richter and Mayock to step down from their TTGOP committee member positions?  No.  However, as we look ahead to tonight’s Board of Supervisors swearing-in ceremony, I do point to this information as cautionary.  Whether political committee members or not, I hope that all our supervisors appreciate that once elected, they are to represent and serve all of the residents of Tredyffrin Township, regardless of political party affiliations.

As the Board of Supervisors starts a new year of service to the community, I offer my best wishes for a successful 2012.

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Filling Tredyffrin’s Interim Supervisor Vacancy

Tonight’s Board of Supervisors meeting agenda is now available online.  In reviewing the agenda, I have a couple of questions.

At the last Board of Supervisors meeting on Monday, December 20, former township supervisor Warren Kampf tendered his letter of resignation at the end of the meeting.  Because of the November’s election results and Kampf’s election to the State House, his supervisor resignation was no surprise.  Anticipating his resignation, a notice on the township website asked those interested in the position to submit their resumes to Township Manager Mimi Gleason; I wrote of the notification on December 3. 

I understood from the Home Rule Charter that the Board of Supervisors has 30 days to name an interim supervisor.  My understanding was that the 30 days would commence from the announcement date of the vacancy (December 20).  However, on tonight’s supervisors meting agenda, I noted an item ‘announcing the vacancy’.  Understanding it is semantics, I assumed that the clock started ticking on December 20 rather than 2 weeks later, on January 3.

Below is the section in the Home Rule Charter that deals with supervisors vacancies.  Reading HRC 205.C.2 confuses me – one way that I read it agrees with my theory that the clock started ticking from December 20 but it could also be interpreted that the clock starts at the next supervisor meeting after the vacancy is announced – which would be today, January 3.

I have another question about the vacancy process as based on the Home Rule Charter. If I understand the process, those interested in the supervisor position were to send their resumes to the township manager.  The township manager would then pass the resumes to the supervisors for their review and appointment decision.  The identity and resumes of those applying for the vacancy are not provided to the public . . . correct?  Am I interpreting the Home Rule Charter correctly . . . the decision of the interim supervisor appointment is the choice of the Board of Supervisors.

I could use some help with interpreting the Home Rule Charter.  If there are any municipal legal authorities reading this post, I welcome your comments.

205. VACANCIES.

A. The office of a Supervisor shall become vacant upon death, resignation, removal of place of residence from the Township (or, in the case of a District Supervisor, from a District represented), legal certification of mental disability, or forfeiture of office as authorized by law or this Charter. 

B. The office of Supervisor shall be forfeited if he is declared by any Court of this Commonwealth to lack any qualifications for the office as prescribed by law or is convicted of any crime classified as a misdemeanor of the second degree or higher under the laws of this Commonwealth, or is convicted of any comparable crime under the laws of any state or of the United States.

C. Whenever a vacancy exists in the office of Supervisor, the vacancy shall be filled under the following procedures:

1. At the next election, primary, municipal or general, which takes place sixty days or more after such vacancy occurs, a special election to fill the vacancy for the balance of the unexpired term will be held. The special election shall be conducted in accordance with election laws of this Commonwealth. The person elected to fill the vacancy shall assume the office on the day following certification of the election results.

2. The Board shall, at its first regular or special public meeting after the vacancy occurs, give notice that a vacancy exists and shall state that it will make an interim appointment to fill the vacancy at its next public meeting which occurs not less that thirty days from the meeting at which the vacancy is announced. Following such notice, the Board by a majority vote of its remaining membership shall appoint a qualified elector of the Township, and in the case of a vacancy in the office of District Supervisor, a qualified elector of the District in which the vacancy exists, to fill the vacancy until a duly elected successor is sworn into office.

3. If the Board shall fail to fill a vacancy within sixty days after the vacancy occurs, the Court of Common Pleas of Chester County, upon petition of any individual Supervisor, or upon petition of ten or more qualified electors of the Township, shall make the interim appointment to fill the vacancy until a duly elected successor is sworn into office.

4. In the event that sufficient vacancies exist so that the Board lacks a quorum necessary to do business, the remaining members of the Board shall immediately make an interim appointment or appointments to fill sufficient vacancies in the position of Supervisor from the Township at large to form a quorum. Thereafter, the remaining vacancies shall be filled as otherwise provided herein.

5. In the event that all of the positions on the Board should become vacant, the Court of Common Pleas shall immediately, upon petition of ten or more registered voters of the Township, make interim appointments to fill the offices of Supervisor from the Township at large. Thereafter, the remaining vacancies shall be filled as otherwise provided herein.

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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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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

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