Looking at the viewership statistics from yesterday, I am pleased that many residents have watched the February 8 Board of Supervisors meeting YouTube video clips and have continued to weigh in with personal comments. I would encourage you to email the Community Matters link to your neighbors, co-workers, friends in the township; failure to follow policy and procedure by our elected officials is an important issue and one that we need to keep in community discussion. A comment from Township Reader, ” . . . Is there anyone out there who is a lawyer who can tell us if there is any basis whatsoever to do a recall of 1)the vote or 2)the supervisors?” has sparked comments from others, including a couple of attorneys.
JudgeNJury and John Petersen, offer their legal opinions and case studies that speak to the specific problem of recalling both the vote and supervisor(s). Reading through the following commentary, it is obvious that legal recourse would not be a simple, inexpensive road to take. However, I am one of those who believes that justice will win and that the wrong will be righted as it pertains to the vote to return St. Davids escrow. Public scrutiny of the situation, compelling commentary from residents, and continued light on our elected officials will hopefully encourage the supervisors to ‘right the wrong’ at the February 22 Board of Supervisors meeting.
Please read through the following commentary from local attorneys:
JudgeNJury, on February 15th, 2010 at 10:48 PM Said:
As I see it, there are two options for “undoing” the vote: (1) a majority of the Board votes to undo it, or (2) a court orders the Township to undo the vote. Given what we’ve seen so far, option 1 does not seem terribly likely. Therefore, you’d have to pursue option 2. But a court will not do anything unless and until someone brings and prevails upon a suit (which, as a general rule, can take months or years to resolve). This previous thread discussed the legal precedent: http://pattyebenson.wordpress.com/2010/02/07/home-rule-charter-violations-legal-cases-from-philadelphia-and-erie-county/. In short, where a municipality takes an action that violates its Home Rule Charter, the proper course of action for those who want to challenge the decision appears to be a declaratory judgment action to declare the municipality’s action null and void (or “void ab initio,” as they say) and/or an injunction action to prohibit the municipality from enforcing its decision. There are two main problems with bringing suit, one legal and one practical.
First the legal problem: Only a person with “standing” may bring this kind of suit. In Cohen v. Rendell, 684 A.2d 1102 (Pa. Commw. Ct. 1996), the Philadelphia City Council passed 28 ordinances in one “block vote” (i.e., it passed all 28 ordinances in one vote). Philadelphia’s Home Rule Charter, however, provided that ordinances had to be voted on individually, not in a block (I am oversimplifying a bit, but that’s all you really need to know for purposes of this discussion). Therefore, arguing that the vote violated the City’s Home Rule Charter, three private citizens and Philadelphia City Councilman David Cohen brought an action against the City for a declaratory judgment that the ordinances were invalid and for an injunction to prohibit the City from enforcing the ordinances. The Commonwealth Court (one of Pennsylvania’s appellate courts) held that, although Councilman Cohen had standing to challenge the ordinances, the private citizens did not. Here is a quote from the opinion (I cannot find a copy of this opinion on any of the free legal reference sites, so I cannot provide a link to it):
“As to the standing issue, Private Citizens contend that each have standing to maintain the action since each has an interest in Council following the Charter’s procedure for adopting ordinances. In order for Private Citizens to have standing as ‘aggrieved’ citizens, they must assert more than the common interest of all citizens in procuring obedience to the law. See William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). ‘Standing is the requirement that the person bringing the action be adversely affected by the matter they seek to challenge to assure that they are an appropriate party to bring the matter to a judicial resolution.’ Drummond v. University of Pennsylvania, 651 A.2d 572, 577 (Pa.Cmwlth.1994). A person who is not adversely affected in any way by the matter he seeks to challenge cannot be ‘aggrieved’ and, thus, has no standing to seek judicial resolution of his case. William Penn, supra. Rather, he or she must allege a ‘direct’ interest by which he or she demonstrates the causation of harm to his or her interest by the matter of which he or she complains. Id. Private Citizens clearly do not possess the type of interest in the result of the ordinances necessary to obtain standing because they have not asserted anything more than an interest common to all citizens. Though they contend that Cronin and Haver [two of the private citizens] represent citizens of the City of Philadelphia who ‘would be affected by the various passed Ordinances’, they have failed to specifically allege that any interest of either Cronin or Haver has been directly affected here. And, though they contend that Shigaki [the third private citizen] was directly affected because one of the 28 ordinances affected ‘streets in the area in which Shigaki lived and encompassed by members of his civic group’, Private Citizens have not pled any facts that would show that he is specifically aggrieved.”
What this means, I think, is that a generic Tredyffrin resident would not have standing to sue the Township to undo the St. David’s vote. Rather, the plaintiff would have to be an individual (or a group of people) who can allege that he or she will be directly and negatively impacted if the Board’s vote is left to stand. And since the vote did not actually kill the sidewalk (although that may be the practical effect, all the vote actually did was release a letter of credit), finding someone who can say they are “aggrieved” by the vote may be difficult.
The second problem – the practical problem – is money. Unless you can find a lawyer to do this for free (not terribly likely, I’d think) you would need to pay for a lawyer to bring this suit, which would not be cheap. This is not the type of case that a lawyer will take on contingency, as there is little chance the court will award monetary damages and, even if it did, they won’t amount to much.
Ray Clarke, on February 16th, 2010 at 9:37 AM Said:
So, if councilman Cohen had the standing to challenge the ordinances in the case cited, would we have to look to one or more of the Supervisors in our situation?
JudgeNJury, on February 16th, 2010 at 9:57 AM Said:
Yes. This analysis from the Cohen case seems to suggest that one of the Supervisors would have standing to mount a legal challenge:
“Councilman Cohen, however, as a Council member, possesses the requisite standing to bring the complaint against the City. In Morris v. Goode, 107 Pa.Cmwlth. 529, 529 A.2d 50 (1987), we considered whether individual members of a city council have standing to seek injunctive relief based on council’s failure to comply with the voting procedures mandated by the Charter. In Morris, we held that the plaintiffs, as council members, possessed a legal interest granted by the Charter in having a quorum present to vote on council resolutions. Id. 529 A.2d at 53. In other words, council members individually possess a legal interest in enforcing the voting procedures established by the Charter, and have standing to seek declaratory relief when such procedures are violated.
And, in an analogous situation, in Zemprelli v. Thornburg, 47 Pa.Cmwlth. 43, 407 A.2d 102 (1979), we held that a Pennsylvania State Senator’s right to have Governor’s nominations to vacant appointed offices submitted within the constitutional period conferred a legal interest upon him by which he possessed standing to seek a judicial remedy against the Governor when he failed to submit such nominations. Because Cohen, as an elected, voting member of Council, has a legal and direct interest in ensuring that Council follows the procedures set forth by the Charter, we hold that he does possess standing to bring his case against the City.”
JudgeNJury, on February 16th, 2010 at 10:28 AM Said:By the way, I was curious to see what the ultimate resolution was in the Cohen case so I pulled the docket from the Philadelphia Court of Common Pleas:
03:44 PM WSFFD – FINDING FOR DEFENDANT GLAZER, GARY S 30-SEP-1999
Docket Entry: IT IS ORDERED THAT THIS COURT, IN THE EXERCISE OF ITS EQUITABLE POWERS, FINDS THAT ALTHOUGH THE HOME RULE CHARTER WAS VIOLATED BY THE USE OF THE CONSENT AGENDA, THE NULLIFICATION OF THE 28 ORDINANCES, PASSED BY CONSENT AGENDA BY THE CITY COUNCIL OF PHILA ON 6/22/95, WOULD IMPOSE GREAT HARDSHIP ON ALL INDIVIDUALS AND BUSINESSES AFFECTED. THEREFORE, THE RELIEF REQUESTED BY THE PLTF IS DENIED, AND A FINDING IS ENTERED ON BEHALF OF THE DEFTS IN THE ABOVE CAPTIONED MATTER. BY THE COURT ….GLAZER,J 9/30/99″
So even if you can prove a violation of the HRC, that is no guaranty that the Court will award relief.
John Petersen, on February 15th, 2010 at 11:04 PM Said:
This link may help..
Not good news… In PA, we simply cannot recall an elected official. There must be a crime of some sort. Is there underlying criminal activity re: the St. David’s vote? As outrageous as many of my comments appear to be, even I wouldn’t go that far as to allege a crime was committed here. Bad judgment and bad political calculations. Put it this way, if there was a cognizable crime here, I would be shocked. And for the record, not much shocks me…
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Pattye, I agree with you. This community needs to stay engaged and watch every move of our elected officials. I hope that one of the 3 supevisors who ‘opposed’ the vote on St. Davids return of escrow, will have the courage to stand up and do what’s right — JD, Michelle or Phil need to make a motion at the next BOS meeting to reverse the motion.
The residents need to encourage JD to make that motion to reverse the vote at the 2/22 BOS meeting. JD came close to making the motion at the last meeting. Either Michelle or Phil will give a second to the motion.
Surely of the other 4 — Lamina, Kampf, Olson, Richter will vote in favor of a reversal of the vote. They need to show the community that they were serious when they gave their ‘apology’. The only way begin to correct the breach of trust felt by many in this community, is to start over. Otherwise, I think that St. Davids is going to follow them always; can’t believe that is what they want (esp. Warren Kampf, with his State House run).
Maybe JD will — but I can tell you that I would not do it — as the way a board works is that it’s not about what you want — it’s about what you can get the votes to do…and if based on personal discussions they know these four are not moving, why prolong the debate/humilitation. It will not help anyone work together in the future. Someone posted elsewhere — this vote by LOK is nothing new — and voters have re-elected them time and again. And John’s suggestions that the parties control the process — run as an independent with grassroots support and you don’t need the parties…the TTRC’s Ercole (?) must have worked for Nixon anyway…certianly not principled or contemporary.
Why aren’t the minutes posted on the website from the January 25th BOS meeting?
From the TT website: “At each public meeting, the Board of Supervisors approves the minutes for the previous public meeting. After the minutes are approved, they are added to the website…”
FYI – These draft minutes from Jan 25 had 2 small edits at the Feb 8 meeting and were subsequently approved by the BOS. Where are they? Are they waiting until after the Chester County Republican Convention this weekend before they are made available online??
That is an interesting point — where are the January 25 meeting minutes?
I have followed the posting of meeting minutes for a few years as I like to check out what I have missed. It is normal for them to be a meeting behind in posting them. I’d have to say there’s no conspiracy here, they are just slow in getting them posted.
I did think that they generally had the minutes posted before the next meeting. With that theory in mind, I guess I would have thought that the 1/25 minutes would have been up before the 2/8 meeting. You are probably right — slow, but no conspiracy.
Agreed, maybe just slow, maybe that is the norm. I can’t imagine how I came to be so distrustful and suspicious of Bob, Paul & Warren… Oh well, if the shoe fits.
Agreed! And I agree, they should be posted sooner – especially before the next meeting, as Pattye mentioned.
This isn’t related to the St. David’s issue but I’m concerned… I emailed the Township Tuesday morning asking when the agenda for February 18th Planning Commission Meeting would be available and so far I haven’t received a response and the agenda still isn’t posted. The meeting is tomorrow night. Are agendas now optional? How do I even trust that what they place on the agenda is what will be discussed? Do we have to attend each and every meeting now just to be sure we don’t miss something?
I’m worried because there are several land development proposals pending in my neighborhood and I like to attend the PC meetings if any of them show up on the agenda.
I have spoken to a Planning Commissioner in regards to the agenda; I am hopeful that it will be up on the township website shortly.