Blog Connection Issues

Posted in Pennsylvania

With apologies to readers, blog.com, the service that hosts this blog has been having some connection issues.

It is our sincere hope that blog.com will resolve these accessibility issues and that the service will have greater stability for the sake of readers and bloggers alike.

Again, our apologies for any problems with access that have been experienced by our readers.

Revisiting Failed Attempts to Amend PA Public School Code to Consolidate Administrations of Districts When Existing Law Already Provides for School Directors to Do So

Posted in PA legislative push for countywide school district consolidation via unprecedented county referendum

PA State Representative Timothy Mahoney and State Senator John Wozniak have a good bit in common.  Both sought to amend the PA Public School Code in years past to provide for an ability for other than the already empowered school district board of directors (by majority vote in at least two school districts) to consolidate Administrations of local public school districts at the county level and simultaneously to consolidate, or merge, school districts.

Both failed.

Rep. Mahoney’s legislative measures with regard to local and distinct individual public school districts did not pass out of committees in the House and none  became law.

Mahoney’s offerings focused on amending the PA Public School Code Act, which in fact, is the existing Law enabling public school board directors to consolidate, or merge, a school district with another similarly inclined by having the board members vote in session with a majority approving the consolidation of districts into one district with a single board of directors and administration.

The PA Public School Code Act of 1949 contains provision for mergers/consolidations of PA school districts by means of the duly elected school board directors to consider the merger at a public meeting and to then take a vote on whether or not to merge with another school district.  Should two or more school districts see the measure pass in the district (by simple majority vote of the board of directors) the merger decision would be sent to the state Department of Education.

There is no provision in the PA Public School Code Act for a referendum process for voters of any local school district to consider the merger or consolidation of local school districts, nor is there such a referendum process for the electorate of a county to consider the merger or consolidation of local school districts into a county entity.

Rep. Mahoney’s legislative attempts began in 2007/2008 with House Bill 2704.

He followed that with House Bill 351 and then on April 25, 2011, Rep. Mahoney introduced House Resolution 231.

Each piece of legislation indicates Rep. Mahoney recognized the PA Public School Code Act of 1949 as the governing law regarding mergers/consolidations of two or more school districts.

Meanwhile, in 2011, Rep. Mahoney sought to bypass the legislative route he said could not gain a foothold in Harrisburg by having petitions circulated in Fayette County to gather signatures for the purpose of having the Fayette County electorate vote to approve the dissolution of school district boards of directors and administrations per six local public school districts, and to create a single school district (with a single board of directors) in a referendum slated for the November General Election that year.   Judge Ralph Warman put that attempt to rest in his August 25, 2011 Ruling to Set Aside the Mahoney referendum petition.  Questions continue to surround Mahoney’s blatant disregard for the Law of the Land as shown in his extra-legal power grab.

The power grab is evident since Rep. Mahoney knew before circulation of petitions even began (though it remains unclear when petitions were circulated as there are no dates on the petitions set opposite names) because Rep. Mahoney recognized the existing law (PA Public School Code Act) regarding consolidation or mergers needed amended to enable a referendum as far back as 2008.

Related issues were discussed in previous posts as well.

June 6, 2011 PA Rep. Mahoney’s push for petition signatures for county electorate referendum nothing short of bypassing local school district representative government

http://notenoughsaid.blog.com/2011/06/11/pa-rep-mahoneys-push-for-petition-signatures-for-county-electorate-referendum-nothing-short-of-bypassing-local-school-district-representative-government/

In addition, Rep. Mahoney’s earliest effort shows he did not feel he needed to have a study conducted to determine anything, and he certainly did not attempt to pay for an independent poll per each of the six local school district’s voters before he began his push to consolidate by any means.

May 28, 2011 PA Rep. Mahoney legislative proposal July 9, 2008 reveals conclusion to consolidate Fayette area school districts into one reached without a local study being started or completed.

http://notenoughsaid.blog.com/2011/05/28/pa-rep-mahoney-legislative-proposal-july-9-2008-reveals-conclusion-to-consolidate-fayette-area-school-districts-into-one-reached-without-a-local-study-being-started-or-completed/

While reviewing Rep. Mahoney’s past, it would serve the public well to be aware that in the recent past Rep. Mahoney promised he would make another try… (May 24, 2012 Election Board Meeting)(RTKL Answer copy official audio minutes).

Rep. Mahoney’s previous, and failed attempts, to amend the PA Public School Code

PA House Bill 2704 Printer’s No. 4206 Session of 2008

An Act Amending the Act of March 10, 1949 (P.L. 30, No. 14), known as the Public School Code of 1949…

Section 224.1 Referendum on Combination of School Districts…
Please see sidebar for link
Mahoney’s House legislation (H.B. 351) would have attempted to enable county commissioners to place a referendum on the ballot asking voters if they support consolidating small school districts into a single, countywide school district for the purposes of administration and taxation. The consolidation process would begin if at least two-thirds of voters approve the referendum.  The legislation was never passed out of committee.

http://www.pahouse.com/PR/051021009.asp
PA House Bill 351 Printer’s No. 382 Session of 2009
An Act Amending the act of March 10, 1949 (P.L. 30, No. 14), known as the Public School Code of 1949, added December 7, 1965
(P.L. 1034, No. 385)is amended to read…
Section 224.1 Referendum on Combination of School Districts..
Rep. Mahoney’s House Resolution 231 indicates an exclusivity of a referendum to Fayette County’s electorate.
A reading of Rep. Mahoney’s recently introduced House Resolution 231 (April 25, 2011) contains a passage that gives a Spring completion date for the study to be conducted on the consolidation of Fayette County school districts.
The following passage reads:

The results of this study will be used for gathering petition (misspelled in the hr) signatures to ultimately have a referendum for Fayette County voters to decide whether a merger shall occur.

See sidebar for link…

None of the legislation has been co-sponsored by any other local Fayette area colleague representing portions of the county there in Harrisburg.
- SB 1321 (Wozniak)(PN 1860): Would amend the Public School Code to consolidate the administration of school districts of the second, third, and fourth class at the county level. School districts would be required to pay a pro rata share of the costs incurred by the county and the new section would not affect collective bargaining agreements.

Last action: Discussed at Senate Government Management & Cost-Study Commission press conference (6/28/10)

http://www.mcato.org/storage/WIR_062710.pdf

WOZNIAK FORCES VOTE ON SCHOOL ADMINISTRATORS

             HARRISBURG – May 25, 2010 –State Sen. John N. Wozniak forced a vote today on his idea to trim the number of school administrators in Pennsylvania by offering it as an amendment to a bill up for consideration on the Senate floor.

The amendment was defeated by a vote of 30 to 17, but it prompted the debate Wozniak has been seeking regarding cutting school costs through consolidation.

“The people of Pennsylvania are impatient for real and substantive school reform,” Wozniak said. “I am grateful for the support my amendment received and I’m as motivated as ever for the Senate to end years of mulling with action.”

Just over a month ago, Wozniak introduced Senate Bill 1321, intended to force Pennsylvania county officials to appoint a single school superintendent for their counties, along with other administrators to provide consolidated services for local school districts.  Consolidated administrative functions could include legal services, payroll, accounting, purchasing and contracting.  Each school district would pay a share of the administrative expenses based on its number of employees.

When an education bill (Senate Bill 1011) came to the Senate floor today, Wozniak offered his bill –now stalled in the Senate Education Committee –as an amendment.  The move sparked an intense debate over the urgency of school reform in Pennsylvania.

“Taxpayers want more streamlined and efficient management of public schools,” Wozniak said. “Centralizing school administration will eliminate administrative redundancy, relieve salary inflation, and allow local districts to concentrate on educating students.”

Last year, Wozniak introduced legislation to form a commission to redraw Pennsylvania school district boundaries to reduce the number of districts and combine services.  Senate Bill 833 remains in the Senate Education Committee.

http://www.senator-wozniak.com/releases/2010/schoolsconsol.htm

Study Sought for School District Consolidation
By Jennifer Reeger
TRIBUNE-REVIEW
Wednesday, April 29, 2009
A Cambria County senator is calling for a state commission that would study school district consolidation and come up with a plan to reduce the number of districts in Pennsylvania.

Sen. John Wozniak said during a news conference Tuesday that he will introduce legislation to form a commission to delve into the issues surrounding consolidation.

“It’s becoming increasingly apparent by public pressure that they want more efficiency out of our government,” Wozniak said. “There’s much redundancy, there is much expense, and what we need to do is take a serious, honest, unemotional look at how we make our schools more efficient.”

Pennsylvania Secretary of Education Gerald Zahorchak, who joined in the news conference to express his support for the commission, said only 10 states have more school districts than Pennsylvania. Gov. Ed Rendell this year called on the Legislature to reduce the number of districts to 100.

Zahorchak believes consolidation can lead to greater student achievement by offering classes that smaller districts can’t afford and can reduce administrative costs by ending duplication of services.

Zahorchak said the aim is not to increase class or building sizes but to avoid duplication in district administrations.

“How do we get the money closer to the child and how do we make sure our expenditures aren’t costing taxpayers because of redundancy?” Zahorchak said.

Pennsylvania had more than 2,200 school districts before the state whittled the number to 669 in the late 1950s. Additional mergers plus federal anti-discrimination rulings shrank that number to 501 by the 1970s.

Read more: Study sought for state school consolidation – Pittsburgh Tribune-Reviewhttp://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_622725.html#ixzz1PqzbZH1x
Wozniak said the commission would include legislators, state education officials, as well as a school board member, parent, teacher, business person and school administrator.

The commission would hold 10 public hearings to gather input across the state. The commission would then put together a plan and hold another 10 hearings.

“I want complete transparency,” Wozniak said. “I want it to be an open process.”

While Wozniak would not say how many school districts Pennsylvania should have, John Katana, a retired geography teacher for the Indiana Area School District, said he envisions about 70.

Katana, who also spoke at the news conference, said looking at population trends, he envisions a system of county school districts with a few major cities each having their own districts.

“I think gone are the days of the bottomless pit of money school districts can spend. It’s easy to spend somebody else’s money,” Katana said. “(Consolidation) will be a challenge, but it’s workable and doable.”

Not everyone is convinced.

Stinson Stroup, executive director of the Pennsylvania Association of School Administrators, said his group does not support state mandated school consolidation or the need for a commission to study it.

“We don’t think that wholesale consolidation is likely to lead to any efficiencies,” Stroup said. “It may have the opposite result and end up costing more for less quality.”

Individual school districts should look at whether consolidation would be good for them instead of having a commission make that decision, he added.

He said some districts are investigating mergers.

“There is interest in it, but I think it needs to be a targeted interest and a targeted study, not a state study,” Stroup said. “In each of those communities, whether there are improvements to be made or efficiencies to be had is going to depend on an individual analysis.”

In a research paper released Monday by the Pennsylvania School Boards Association, David W. Davare said no evidence exists that consolidations would improve cost savings or student achievement.

Davare said while a number of pre-merger studies have indicated potential cost savings, there have been no follow-up studies documenting that.

He added a 2005 Nevada Policy Research Institute study revealed that as school size increased, the percentage of budgets spent on teachers, books and materials declined.

Wozniak estimated the commission’s work could take two years. He admitted any changes to the school structure will be a difficult sell in the Legislature.

“You’ve got to start somewhere,” he said. “You’ve got to start making these changes in Pennsylvania. We are living in the 21st century in an 18th-century political structure.”

Read more: Study sought for state school consolidation – Pittsburgh Tribune-Reviewhttp://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_622725.html#ixzz1PqzH2MQT

http://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_622725.html

SB 389, PN 1200:  This legislation amends the Public School Code by defining vocational agricultural education.  Senator Wozniak offered amendment A02555 which would base the “as be” formula by county instead of by school district.  After some discussion, Senator Wozniak agreed to withdraw the amendment.  A vote of 49-0 was recorded on the bill.

http://www.pasenate.com/?page_id=132

Senator John Wozniak Joins Center’s Board of Directors
The Center for Rural Pennsylvania welcomes its newest board member, Senator John Wozniak. Sen. Wozniak was elected to the Pennsylvania House of Representatives in 1980 where he served until his election to the Senate of Pennsylvania in 1996. He currently serves the 35th Senatorial District, which includes Cambria County and parts of Somerset, Westmoreland and Clearfield counties. Sen. Wozniak serves as Democratic Chairman of the Senate Finance Committee and is a member of the Senate Agriculture and Rural Affairs, Communications and High Technology, Community and Economic Development, Game and Fisheries, Intergovernmental Affairs and Legislative Budget and Finance committees. He also serves on the advisory board of the University of Pittsburgh at Johnstown and is a member of the Cambria County Community Action Council, the Johnstown Area Regional Industries, and the Greater Johnstown and Clearfield County Chambers of Commerce.

http://www.rural.palegislature.us/news0902.html

Consolidation to county-based school district can be done, says poster to news clip, because Maryland, et al, have done it.

http://www.pennlive.com/editorials/index.ssf/2010/12/does_pennsylvania_really_need/5295/comments-newest.html

PA Wave: Referendum Proposals to Determine Natural Gas Drilling Murrysville Council Park Drilling Nixed While Home Rule Township Ordinance In Limelight for Decision on Voter Referendum to Overturn Council Action

Posted in Home Rule Charters and Natural Gas Drilling, natural gas drilling controversy, PA Election Code, referendum proposal plan

May 15, 2014 (DAY)

While members of the Murrysville Council had discussed a plan for citizens to mount a referendum proposal on the issue of a request for gas drilling at the community park, the effort never took place since Murrysville Council opted to nix natural gas drilling in a community park.  Meanwhile, another approach to curtail natural gas drilling has been tried in a municipality which had previously adopted a Home Rule Charter.  Controversy continues to surround whether or not a Home Rule municipality can ban natural gas drilling by amending its charter…

See the following…

Is Pennsylvania township’s ballot initiative banning fracking a violation of state law?

clip

More than 100 towns in the state have already passed ordinances related to drilling. But the drilling industry argues that complete bans are pre-empted by state mineral extraction laws. Moreover, Peters Twp is attempting to ban drilling through an amendment to its home rule charter. Under the Pennsylvania Home Rule Charter and Optional Plans Law (Home Rule Law), a municipality that has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, statute or by its home rule charter. Here, Peters Township’s attempt to ban the exploration and production of natural gas through an amendment of its home rule charter is subject to challenge because such a ban is a violation of the Home Rule Law. Under the Home Rule Law, a municipality may not exercise powers that are contrary to, or in limitation or enlargement of, powers granted by statutes applicable in every part of the state. For instance, the Pennsylvania Oil and Gas Act is applicable in every part of Pennsylvania, and Peters Township’s charter amendment banning the extraction of natural gas would be contrary to the Oil and Gas Act – including the Oil and Gas Act’s stated purpose to permit the optimal development of oil and gas resources in Pennsylvania.

Peters Township’s proposed charter amendments also rest on shaky legal ground because home rule municipalities may not determine the duties, responsibilities or requirements placed on businesses, occupations and employers. The Peters Township charter amendment, which bans the extraction of natural gas in Peters Township and deprives corporations engaged in the extraction of natural gas rights and protections afforded under the United States and Pennsylvania constitutions, arguably impermissibly regulates businesses and employers by prohibiting an activity that is expressly permitted and regulated by Pennsylvania law.

http://www.lexology.com/library/detail.aspx?g=d2af82da-d501-4dd3-b436-3a1b10c5e8b1

Municipality of Murrysville Agenda Briefing January 22, 2014

Murrysville Council wants referendum vote on park drilling Tribune-Review Daveen Rae Kurutz Wednesday, Jan. 22, 2014

http://triblive.com/neighborhoods/yourmurrysville/yourmurrysvillemore/5424299-74/drilling-park-council#axzz319hEtnUT

More

http://themarcellusshale.com/shale-lease-debate-begins-murrysville/

Ordinance http://www.murrysville.com/Document_Server/1316_Ordinance_No.%20907-14%20-%20March%207,%202014.pdf

Following…

Pa. municipality rejects park drilling proposal

Western Pa. municipality rejects proposal to allow gas drilling under community park

May 8, 2014 6:04 AM

MURRYSVILLE, Pa. (AP) — A western Pennsylvania municipality has rejected a proposal to allow gas drilling under a community park.

The Pittsburgh Tribune-Review (http://bit.ly/SCTvEi ) reports that the Murrysville Council on Wednesday voted down a measure to solicit bids for Marcellus shale gas rights under Murrysville Community Park.

About 15 residents applauded when council president Joan Kerns said Murrysville would instead focus on updating the Westmoreland County municipality’s drilling ordinance.

Monroeville-based Huntley & Huntley had submitted a lease offer to the municipality earlier this year, prompting officials to consider soliciting bids for the gas rights to the 262-acre park.

If the proposal had been approved, residents could have sought a referendum on the matter on the November ballot.

http://www.post-gazette.com/powersource/latest-oil-and-gas/2014/05/08/Pa-municipality-rejects-park-drilling-proposal/stories/201405080267

Peters Township

September 14, 2011
Peters council heads to court to block shale referendum
Tuesday, September 13, 2011
By Janice Crompton, Pittsburgh Post-Gazette

A lawyer representing Peters council is expected to be in Washington County court this morning in an attempt to block a voter referendum on whether to ban natural gas drilling.

“In my opinion, it’s patently illegal,” said solicitor William Johnson.

The referendum, which is slated to appear on the Nov. 8 ballot, asks Peters voters whether to ban gas drilling and hydraulic fracturing — or fracking — of the Marcellus Shale, and other natural gas extraction activities.

Council members Monday night voted unanimously to mount a legal challenge to the referendum, organized by members of the Peters Township Marcellus Shale Awareness group, which last month presented a petition with 2,422 signatures of residents to the county elections office to get the referendum included on the ballot.

Specifically, the referendum would ask voters in the county’s largest municipality to establish a “bill of rights” that would amend the home rule charter and override a drilling ordinance passed by council last month.

That ordinance, passed after months of debate and public hearings, limits Marcellus Shale gas drill sites – and any other mineral extraction activities – as a conditional use in a specially designed overlay district.

Drilling would be limited to parcels of at least 40 acres along main roads, and companies would be required to test water and soil before drilling and after hydraulic fracturing.

But members of PTMSA had pressed council to either ban drilling or confine it to industrial areas, and members continued protesting the issue Monday night, wearing red-and-black anti-fracking T-shirts and carrying signs urging council to let the voters decide the issue. Members held up their signs during the nearly two hours that council debated whether to challenge the referendum.

“If you want to commit political suicide, go ahead,” said Peters resident Ann Shaner, a member of PTMSA.

Ms. Shaner said residents who signed the petition felt it was “the fair and honest thing to do; to give the people the right to vote.”

“This is an anathema, that we in a residential community have to even discuss this,” said resident Susan Derko. “It’s hard to even get your head around.”

But council members said they were concerned that not challenging the referendum would place the township on the hook for perhaps “tens of millions of dollars in liability” from drilling companies and property owners who signed leases.

Mr. Johnson said that if the referendum passes, it would immediately invalidate council’s ordinance and make the township’s position “untenable” and “indefensible” for a number of reasons, including that it would violate the state’s Oil & Gas Act, which governs gas well drilling regulations and preempts local governments from regulating most aspects of gas drilling.

“I just don’t think it’s prudent to put ourselves in this position right now,” he said.

Several council members said they would have preferred to ban gas drilling, but said it isn’t a legal option.

Council said it wants the courts to decide the issue.

“It’s not illegal until the court says it’s illegal,” council President Robert Atkison said of the referendum. “If it’s legal, it will be on the ballot.”

Read more: http://www.post-gazette.com/pg/11256/1174334-100-0.stm#ixzz1XvlBAeyg

Exploring Pennsylvania’s Limited 24 Areas of Law Authorizing Referenda

Posted in Pennsylvania referendum authorizing law 24 areas

Among some useful material regarding referendum authorizing law in Pennsylvania are the following items.

Citizen’s Guide to Local PA Government

PA Legislator’s Municipal Deskbook:  PA Local Government Entities

Pennsylvania Referendum Handbook

Bureau of Local Government Affairs Harrisburg

West Whiteland Township

Dept. of Community and Economic Development 

Pennsylvania Constitution (Local Government/Areas)

http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=00&div=0&chpt=9

Role of Referendum in Pennsylvania CGA Law Firm

Attorney:

clip

…Presently, there are twenty-four areas of law in Pennsylvania that authorize referenda on the ballot; including fire protection, liquor licenses, debt authorization, intergovernmental cooperation, etc. The procedure required to place a referendum on the ballot may depend upon the area of law authorizing the referendum, whether the municipality is a third class city, and/or whether the municipality has adopted a home rule charter. The requirements and procedures are not provided in the Pennsylvania Election Code but instead are scattered throughout the specific areas of law which authorize particular questions. These specific areas of law also govern the date or type of election in which the referendum can be placed on the ballot. If a type is not specified, the question can be placed on the ballot on any election day.  – See more at: http://www.cgalaw.com/article/role-referendum-pennsylvania-local-government#sthash.EtsmL6Tf.dpuf

http://www.cgalaw.com/article/role-referendum-pennsylvania-local-government

reprinted here http://lawrencevyoung.com/article/role-referendum-pennsylvania-local-government

Interesting reads in light of Pennsylvania’s limited-ability for local referenda… municipal

Pennsylvania Bar Association Highlights
http://www.pabarcrc.org/localgov.asp

Prison Referendum Group Petition Should be Assigned to Court of Common Pleas Judge Ralph Warman Immediately

Posted in fayette county commissioners, Fayette County Election Board, non-binding referendum, PA Case Law nonbinding referenda, PA Election Code, Pennsylvania, voting election issues

MAY 8, 2014

The Fayette County, Pennsylvania Prison Referendum Group has met with success for its request to have Court of Common Pleas Judge John F. Wagner recuse himself from hearing arguments to support its contention that a constitutional ballot-access right exists for county voters to have a question placed on the ballot of Fayette County concerning the Board of Commissioners’ action to fund and construct a new county jail.

According to a Tribune-Review report, Fayette’s Judges recuse themselves from prison referendum case, (Liz Zemba) published today, Judge Wagner was not alone in the recusal.

Deemed active Judges, Court of Common Pleas Judge Linda Cordaro previously recused herself, and three others according to the Zemba report, recused themselves this week, leaving Senior Judge Gerald Solomon assigned to hear the PRG’s petition.

Judge Solomon remains slated to hear the case.  However, if he would recuse himself, that would leave only two local on-call Senior judges in line to take up the matter.

The next senior judges to be considered are Conrad Capuzzi and Ralph Warman.

Tribune Review, Fayette’s Judges recuse themselves from prison referendum case, Liz Zemba, May 8, 2014

clip

Wagner noted that because he authored a June 17, 2013, letter, in support “of construction of the new prison to replace the more-than-100-year-old existing facility,” he honored their request to recuse himself.

Three of the five other judges — Nancy Vernon, Steve Leskinen and Joseph George Jr. — this week issued orders recusing themselves. The judges referenced Wagner’s recusal and said they were stepping aside “to avoid any conceivable issue of impropriety, as well.”

Judge Linda Cordaro had recused herself on April 9.

The petition was reassigned to one of the county’s three part-time judges, Senior Judge Gerald Solomon, said Karen Kuhn, court administrator.

Should Solomon recuse himself, it will be reassigned to either of the other senior judges, Ralph Warman or Conrad Capuzzi, Kuhn said.

Read more: http://triblive.com/news/fayette/6074947-74/judges-prison-county#ixzz318GCJNKM

Not Enough Said (DAY) would like to propose Judge Capuzzi and Judge Solomon step aside, and enable Judge Ralph Warman to hear the Prison Referendum Group’s arguments, as well as those to be made by county Board and Bureau Solicitor, Sheryl Heid.

Back in August of 2011, Judge Warman ruled upon the Objection Petition of co-bloggers here to Strike and Set Aside the Referendum Petition of Representative Timothy Mahoney.

After reading Judge Warman’s 16-Page Ruling/Decision, readers should be cognizant of its thoroughness and display of support for the areas of decision Judge Warman made as he provides citation for every pronouncement.  Additionally, readers should recognize from the Ruling Judge Warman had no option other than to follow the Law of the Land of Pennsylvania.

PRG leaders contend the existence of an inherent right for individuals to petition their government as expressed and declared in the Pennsylvania Constitution, thus, the Prison Referendum Group finds support in the PA Constitution  not only for an initiative, i.e. petitioning, but it finds support for a binding referendum based on gathering signatures on petitions to have a question it proposes gain exclusive ballot access for placement on the ballot of Fayette County.

The question is for Fayette County voters to approve (yes/no)  to have the county board of commissioners void/rescind all resolutions adopted per the debt-funding and construction of a new county prison (and start anew after the recision to consider other options and to include the public in considerations).  The Group contends the PA Constitution trumps the need for a state-legislative local authorizing law.

The best move for Fayette County for now and for the future would be to have the Prison Referendum Group face local Judge Ralph Warman with every argument it has to support its contention it does not need to have the state legislative referendum authorizing law to gain ballot-access and to have “its” question placed on the county ballot for a binding referendum.

Judge Ralph Warman already displayed thoroughness in the his Ruling, also enabling Pro-Se petitioners and seasoned counsel for Rep. Mahoney to make arguments counter to each other on the very point of the necessity to follow the PA Election Code and be subject to its requirements.

Rep. Mahoney’s counsel argued the petitions were subject only to the citation Rep. Mahoney provided in a Letter to the Bureau Director, Larry Blosser, and that the referendum was binding in that the citation alone provided that the measure would be binding if a majority of voters approved the question in the referendum vote.  (Title 53 PA C.S.A. Section 2306 Intergovernmental Cooperation)

Judge Warman wrote of the citation (after analysis) …The intergovernmental subchapter contains no provisions that indicate that intergovernmental agreements can supersede the requirements of the School Code Act.  Nor has Mahoney provided any authorizing law… (Page 15 of No. 1839 G.D. of 2011 Judge Warman Ruling)

Although county board Solicitor, Sheryl Heid authorized Director Larry Blosser to accept and thus file the Mahoney referendum petitions, and an examination period was not held, indicating the petitions were legitimate (thus, presumed to have basis per Mahoney’s Letter citation) when asked in Court whether the petition was binding, or non-binding Solicitor Heid expressed her legal opinion to be the question was advisory and the referendum non-binding.

Judge Warman’s Ruling provides clear and substantiated reasoning for his determinations.

He clearly indicated the citation Mahoney provided lacked the power to force a binding referendum as it was not referendum authorizing law that enabled an electorate to do what Mahoney (and signers) wanted to be done.

Despite having had the state legislator’s petition formally accepted by the Bureau, and no retreat from a position by Ms. Heid prior to the Hearing on August 22, 2011 (that the authorizing law Rep. Mahoney used enabled the referendum power), Judge Warman demonstrated adherence to the Law in his Ruling No. 1839 G.D. of 2011.

Judge Warman would do no less in considering issues the Prison Referendum Group raises.

If indeed Judge Warman found merit in the Prison Referendum Group’s basic arguments, he would indeed rule for the Prison Referendum Group.

These quarters expect no less of Judge Warman than to follow the Law and abide by the PA Constitution.

As well, it would serve Fayette County best to have each of the three commissioners who sit as the Election Board appear in the county courtroom to give testimony per their rejection votes (Chairman Al Ambrosini and Commissioner Vincent Zapotosky), and abstention/non-vote (Commissioner Angela Zimmerlink).

In addition, it would be beneficial to have the Court of Common Pleas of Fayette County set straight for all time, and as a hoped for precedent, whether or not, the Election Board must first indicate to the public an initiative has been mounted by whomever, and provide the public with names of initiators and the citation initiators intend to provide; provide the public notice of an impending deadline date for filing of so-called petitions for whatever;  provide a public notice that petitions called ‘referendum petitions’ for whatever have been submitted;  provide a public notice of a so-called deadline date (with citation of authorizing law, or in the absence of authorizing law, from whence a deadline date for filing of so-called petitions is obtained);   and so forth and so on.

Also, clarification is needed, and again, best done locally, per the Election Board (faced with filed so-called petitions).  Clarification is needed on when that body is to meet once petitions are filed and distinction is needed for the form of the meeting i.e. in a meeting/hearing as opposed to being required to hold a Hearing with persons under oath.

(PA Sunshine Law is applicable no doubt, to both a Hearing and a meeting.  However, for the purpose of rendering a decision to accept or to reject referendum petitions, would the board of election be required to hold a Hearing with persons placed under oath, or would the board requirement be to hold a meeting and enable persons to comment on the matter during the public comment period before the vote for rejection, or acceptance.)

Additionally, Fayette County’s Court of Common Pleas should have an opportunity to provide guidance on whether the examination of referendum petitions must take place as well on date certain clarifying the most nebulous “within a reasonable time…” for an examination of petitions called referendum petitions.

There are dozens of other questions surrounding the procedures that the county adopted for inclusion in its County Referendum Guidebook which would be useful to be placed at and answered in the Fayette County Court of Common Pleas.

Having Fayette County’s Judge Warman seated to hear the Prison Referendum Group, and Soliticitor Heid’s legal opinion, would be the most advantageous for Fayette County.  Judge Warman should not be neglected, and he should not be dismissed as unable to make a fair and neutral decision.

May 8, 2014 DAY

Additions May 9:  A recent find The Daily Item August 29, 2008 Ballot Question Complicated Karen Blackledge  shows that back in 2008, the Montour School District was given information regarding an “advisory referendum” and the illegality of an election board placing an advisory/nonbinding referendum on the ballot.

May 14, 2014 rewording edit (DAY)

Resources

PA Constitution

http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=00&div=0&chpt=9

State Publications including links for Referendum Handbook, Pennsylvania Legislator’s Municipal Deskbook, and Solicitor’s Handbook

http://www.mrsoshouse.com/pa/citizenguide.pdf

http://www.newpa.com/local-government/publications

Referendum Handbook sections Authorizing Law http://www.newpa.com/webfm_send/1529

http://www.lgc.state.pa.us/deskbook06/Resources_03_Publications_of_the_Gov_Center.pdf

Fayette County Outline for Referendum Petition Requirements

http://notenoughsaid.blog.com/files/2014/03/RefPetOutline201208271.pdf

Resources Not Enough Said

*(NOTE following links are not in order as to date.  Blogger ids for separate posters (vide_post) and (notenoughsaid) (day) are visible at the bottom of the respective pages)

http://notenoughsaid.blog.com/2011/09/03/pa-case-law-prevents-election-boards-placement-of-advisory-question-non-binding-measure-on-ballot/

http://notenoughsaid.blog.com/pa-case-law-commonwealth-court-per-referendum-advisory-question-non-binding/

http://notenoughsaid.blog.com/files/2011/08/WarmanRuling1.pdf

http://notenoughsaid.blog.com/2011/08/28/judge-warman-ruling-upholds-law-objectors-petition-sustained-mahoney-petition-stricken/

http://notenoughsaid.blog.com/2011/08/29/fayette-court-of-common-pleas-judge-ralph-warman-ruling-thorough/

http://notenoughsaid.blog.com/2011/08/31/judge-ralph-warman-ruling-election-laws-not-mere-technicalities/

http://notenoughsaid.blog.com/2011/06/11/pa-rep-mahoneys-push-for-petition-signatures-for-county-electorate-referendum-nothing-short-of-bypassing-local-school-district-representative-government/

http://notenoughsaid.blog.com/2011/09/18/no-provision-in-current-pa-law-for-dissolutionconsolidation-of-school-districts-for-any-body-of-electors/

http://notenoughsaid.blog.com/2012/01/03/rep-tim-mahoneys-extra-legal-push-against-state-law/

http://notenoughsaid.blog.com/2012/08/25/history-repeats-itself-part-public-not-getting-advance-copy-of-suggested-regulations-relating-to-referendum-petitions/

http://notenoughsaid.blog.com/2011/06/09/rep-tim-mahoney-believes-his-school-district-consolidation-plan-under-attack-by-naysayers-hes-wrong-his-plan-is-under-attack-by-truthsayers/

http://notenoughsaid.blog.com/2011/06/11/state-rep-tim-mahoney-plays-both-sides-against-the-middle-in-push-for-county-wide-school-consolidation-via-extra-legal-county-wide-referendum/

http://notenoughsaid.blog.com/2011/09/12/pa-state-rep-tim-mahoney-use-of-pa-intergovernmental-cooperation-statute-as-loophole-danger-to-representative-government/

http://notenoughsaid.blog.com/2011/09/04/extra-legal-pushes-for-school-dissolutionconsolidation-unlawful-now-and-in-future/

Resources

Proposed Fayette jail referendum may be nonstarter Liz Zemba  Friday, Feb. 7, 2014

clip

A group opposed to building a jail in Fayette County will circulate petitions this month to try to give voters a say on the project via a ballot referendum, despite indications they may not have the legal footing to do so.

“There are a million legal things that could happen, but we’re just going to move ahead,” said one of the group’s members, Evelyn Hovanec of North Union. “If we get enough signatures, we’re going to present it to the election board.”

Commissioners Al Ambrosini and Vincent Zapotosky in October voted in favor of building a $32 million prison to replace the 125-year-old one adjacent to the county courthouse in Uniontown.

Commissioner Angela Zimmerlink dissented.

The vote called for the prison to be built on county-owned land near the fairgrounds in Dunbar Township, but officials have learned that sewage facilities there are inadequate. They have not voted on a new site. The citizens’ group has been working to try to halt the project by putting it to a vote on the spring primary ballot.

In an email to the election bureau in November, the group said its “intention is to assure that all resolutions pertaining to borrowing, funding, building, relocating the new county prison passed by the two commissioners at the October 2013 or other meetings be repealed, rescinded, declared null and void.”

Sheryl Heid, solicitor for the Election Bureau, told the group in a Jan. 27 letter that “there is no Pennsylvania statute which authorizes a referendum to block the funding of prison construction.”

Heid advised the group to seek a change in state law authorizing referendums, “if you want to continue to pursue this issue.”

Ronald Ruman, spokesman for Pennsylvania’s Department of State, offered a similar opinion when contacted by the Tribune-Review.

“In checking with our attorneys and the Department of Community and Economic Development, there is no provision for a county government to place a referendum on the ballot which would allow a vote by citizens to block funding approved by the commissioners,” Ruman said.

Despite the apparent roadblocks, the group has not given up, Hovanec said.

“This is about people having a voice in government,” Hovanec said. “When this many people disagree and there is no avenue open to them, how can you say we have a government of the people, by the people and for the people?”

Another group member, John Cofchin of North Union, said the group needs at least 1,700 signatures but will attempt to gather at least 2,000. He said even if state laws do not support their efforts, the petition drive will send a message…

http://triblive.com/news/fayette/5554975-74/group-county-election#ixzz31Etpp1CP

Marchers demand a vote on new Fayette jail Tribune-Review Mark Hoffman March 12, 2014

clip

Show said what the group wants is the majority of the three commissioners to explore all possibilities and openly discuss the issue in plain public view.

“We demand the commissioners vote ‘yes’ and allow this referendum question on the ballot,” Show said. “To do otherwise is a slap in the face of those they serve.”

Rally participants then walked to the 911 Public Service Building, which houses the election bureau, where they filed their petitions so a referendum is placed on the ballot for the May 20 primary election.

http://triblive.com/news/fayette/5738285-74/fayette-county-rally#axzz319hEtnUT

Tribune-Review Judge to hear Prison Referendum Group’s plea to put new prison on May ballot Liz Zemba Published: Saturday, April 12, 2014

clip

Dates have been set for a Fayette County judge and the county election bureau to hear the concerns of a citizens group that wants a ballot referendum to give voters a say in whether $32 million should be spent to build a new jail.

President Judge John F. Wagner Jr. will hold a hearing at 9:30 a.m. April 15 to hear the Prison Referendum Group’s arguments in favor of a court order directing the bureau to place the binding referendum question on the May 20 primary ballot.

The election board has tentatively set its own hearing for April 22 to approve or reject the group’s request, according to county Commissioner Al Ambrosini, who is a member of the board.

The court hearing is in response to the prison group’s petition seeking a judge’s order directing the election bureau to place their question on the ballot.

The group wants a judge’s order because the election board never held its own hearing on their request, instead notifying them by letter that there is no statutory authority permitting the ballot question, according to their petition.

The group in March held a rally outside the courthouse in support of the referendum. On Friday, members of the United Mine Workers of America held a rally in support of building a new prison.

Wagner has directed the prison referendum group “to provide specific statutory authority to support” their request for the court order…

http://triblive.com/news/fayette/5931585-74/prison-election-referendum#ixzz31EnfMfsZ

Group asks State Supreme Court to force Fayette prison referendum

Bob Stiles Friday, April 25, 2014

clip

On Tuesday, the county elections board, consisting of the three county commissioners, rejected a 3,500-signature petition seeking to give voters the say in the construction of the prison via the ballot question.

Citing the advice of the board’s solicitor, Sheryl Heid, Commissioners Al Ambrosini and Vincent Zapotosky rejected the referendum petition, saying there is no state law or constitutional authority to authorize it. Commissioner Angela Zimmerlink did not vote, saying she believes the board did not have the authority to hold the meeting.

Ambrosini and Zapotosky have supported the new prison; Zimmerlink has not…

clip

The referendum group further seeks to void all resolutions involving the new jail and modification to the current jail setup, according to group member Evelyn Hovanec of North Union. The question would require the county to explore other options, with any discussion on site selection, construction or other matters done in public.

On Tuesday, Hovanec called the election panel’s meeting a “farce.”

She said residents have a right to such ballot questions under the state constitution, but laws act as roadblocks.

On Tuesday, Cofchin said the meeting should have been held when the petition was first presented in March.

“This meeting is a month late, and it is designed solely to extricate the majority commissioners to permit another amateur example of poor decision-making,” he said.

Each month a new prison is not built, the county loses money, Ambrosini said Thursday, in part by having to house and transport inmates to other prisons in the state.

Prison designs have improved greatly since the prison was constructed 125 years ago, he added.

The Prison Referendum Group still has a petition pending in county civil court before President Judge John F. Wagner. That petition seeks to force the elections bureau to put the question on the ballot. No new date for a hearing was scheduled as of Thursday.

Wagner proposed waiting until after the elections board ruled on the petition before scheduling his hearing…

http://triblive.com/news/fayette/5997800-74/prison-court-county#ixzz2zuSUutEi

Tribune-Review Fayette group won’t abandon referendum Liz Zemba Thursday, May 1, 2014, 12:01 a.m.

clip

Proponents of a ballot referendum on a proposed $32 million prison to be built in Fayette County argued in court filings that the Pennsylvania constitution provides the authority for the referendum.

The Prison Referendum Group has a petition pending in county court in which they are seeking a judge’s order requiring the Election Board to place the question on the May 20 ballot. In lieu of a hearing, the group and the county’s attorney submitted written answers outlining their position on the referendum question.

Sheryl Heid, the solicitor for the Election Board, argued that the referendum should be denied because there is no statute authorizing nonbinding referendums in Pennsylvania.

“In the absence of an authorizing statute, county boards of election have no legal authority to place an advisory question on the ballot,” Heid wrote, “Access to the ballot must be approved by the legislature. Petitioners have failed to cite an authorizing statute, thereby reducing the proposed referendum to a nonbinding question.”

Heid said sections of the Pennsylvania constitution that have been cited by the group “do not legally provide the necessary support for a referendum.”

On Wednesday, two Prison Referendum Group members, North Union residents Evelyn Hovanec and John Cofchin, filed separate answers in support of the referendum. Both argued that the state constitution does give authority for it.

“Our authorizing law resides squarely on those rights given to all citizens of Pennsylvania by the PA state constitution,” wrote Hovanec. “We believe the constitutional law supersedes legislative statute. We also believe there is no specific statute forbidding citizens to have an initiative/referendum question placed on the ballot.”…

http://triblive.com/news/fayette/6036772-74/referendum-group-ballot#ixzz31El0KYT7

Archives Tribune-Review

http://triblive.com/search/?search=prison+referendum+group&btnG=Search

Resources

The Daily Item August 29, 2008 Ballot Question Complicated Karen Blackledge

DANVILLE — Despite a Danville school director wanting to look further into a referendum on consolidation, the Montour County solicitor says it can’t be done.

Director Dawn Koons-Gill questioned the referendum proposed by SUN Area Career & Technology Center, New Berlin, for expanding and renovating classrooms. The center’s joint operating committee in June voted to delay the $14 million project, saying not enough districts would support it.

Gill also mentioned information she had read about referendums in the Wyomissing district for $37 million and the Unionville-Chaddsford district for $30 million.

The Danville school board voted 5-4 Tuesday night to put a referendum on the November ballot to ask voters if they favored an elementary school consolidation.

“People get confused. If a district is borrowing money for a building project, there is a certain limit and a complicated formula if a district wants to borrow more, then it must go to voters,” said Michael Dennehy, solicitor for the Montour County Board of Elections.
“The rule in Pennsylvania is really clear. You can’t have a question on the ballot unless there is a specific law authorizing it. An advisory referendum is not on that list,” he said.

Three separate cases in 1990, 1991 and 1994 say “you can’t do it,” he said Thursday.

“The Pennsylvania Department of State agrees with this,” he said.

Before the cases in the 1990s, there were situations “where people stuck advisory referendums on but those are old,” he said..

http://www.dailyitem.com/0100_news/x691298894/Ballot-question-complicated

Tribune-Review headline Fayette residents seek to stop school consolidation referendum Liz Zemba August 18, 2011

http://triblive.com/x/pittsburghtrib/news/regional/fayette/s_752047.html#axzz319hEtnUT

August 17, 2011 Set Aside Petition

Court Petition as Filed 20110817 – Not Enough Said

The Role of Referendum in Pennsylvania Local       Government lawrencevyoung.com/…/role-referendum-pennsylvania-local-governmen…
  • Aug 11, 2010 - Presently, there are twenty-four areas of law in Pennsylvania thatauthorize referenda on the ballot; including fire protection, liquor licenses, … (Google Search Result)
Reports about the outcome of the Set Aside Petition per Rep. Mahoney’s Referendum Petition which sought to have county voters dissolve school district board of directors and administrations and  to have voters create a new single school district…

Fayette Judge tosses school consolidation from November ballot By The Tribune-Review Published: Monday, Aug. 29, 2011

A Fayette County judge has thrown out a proposed voter referendum to consolidate the leadership of six Fayette County school districts.

Siding with two residents who argued that state Rep. Tim Mahoney’s petition to put the question before voters had numerous flaws, Judge Ralph Warman issued an order prohibiting its placement on the November ballot.

About 40 people helped Mahoney collect 2,629 names in favor of the referendum question, which would have asked whether voters would “support” dissolving separate school boards and administrations in the county to establish a countywide school board and administration.

Delinda Young of Uniontown and Robert Frasconi of North Union challenged the validity of 42 petitions the South Union Democrat filed earlier this month in support of the referendum.

In a 15-page order handed down Thursday, Warman ordered Mahoney’s referendum petition stricken.

“We conclude that the referendum petition filed by Mahoney seeks to place an advisory question on the ballot,” Warman wrote. “As such, the Election Bureau does not have the authority to place the referendum question on the ballot.”

http://www.highbeam.com/doc/1P2-29504406.html

http://triblive.com/x/pittsburghtrib/news/breaking/s_754000.html#ixzz31AfGCQ2M

Fayette County Zoning Board Hearing and Majority Action to Approve Major Jail Site Variance Suspect Due to Executive Session Interruption Prior to the Vote

Posted in county zoning board hearing, violation sunshine law

MAY 7, 2014

Liz Zembas’s article, ” Zoning Board clears way for new Fayette County jail” (Tribune-Review), is not specific with regard to the reason a quorum of board members present interrupted the advertised Hearing on a zoning variance/special exception request (related to acreage on which the county is slated to build a new jail) to convene an executive session.

While Ms. Zemba’s article indicates the board announced it would convene an executive session on an unrelated matter, it does not report any one, two, three, or more valid reasons the board gave for the executive session.

Zoning Board clears way for new Fayette County jail Liz Zemba Tuesday, May 6, 2014, 3:45 p.m.Updated 2 hours ago

The Fayette County Zoning Hearing Board on Tuesday told residents who packed a meeting room that they could take up to 45 days to render a decision on a special exception for a highly controversial $32 million jail.

But less than an hour later, the board approved the special exception for the jail, as well as variances that cover setbacks, the lot size and the planting of trees on the site in Dunbar and North Union Townships.

The approval was made to the dismay of residents who oppose the project. More than 3,000 signed an unsuccessful petition seeking a referendum to halt the plans and start the planning process anew.

Residents had filled the meeting room at the Public Service Building in Uniontown for the four-hour hearing. Most left when the board announced a closed-door executive session on an unrelated matter and members indicated they might not immediately announce a decision on the jail.

Contacted an hour later, board Chairman Robert Guerriere said he and Andre Walters voted to approve the county’s requests. Edward Payson dissented. Guerriere declined further comment.

http://triblive.com/news/fayette/6063179-74/board-voted-county#ixzz312QxiZLf

In Pennsylvania, the Zoning Hearing Board is subject to the open records law including procedures to follow in order for an executive session to be held.  While an executive session can be held within a scheduled meeting and for another, unrelated, matter/s, the reason must be specified publicly.

What reason did the county Zoning Board give before convening the executive session, and did the reason comply with the law for providing a valid reason to convene the executive session?

If the reason was not one among those specified for convening an executive session, the executive session would be suspect.

Also, the Board’s action to interrupt the Hearing, convene the executive session, and afterwards, to continue the Hearing and then to take a vote to approve the requested variances deserves scrutiny.

Ms. Zemba reports that most residents left when the board announced a closed-door executive session on an unrelated matter and members indicated they might not immediately announce a decision on the jail.

By indicating that “they might not immediately announce a decision on the jail,” before going into the executive session, the members gave notice the Hearing portion of the meeting had within all reasonable expectation, in fact ended, thus, the ability for additional attendees to make a public comment on agenda items before the board voted also ended.

It appears the board implied it would not make a decision that day as it could take 45 days to render its decision, and that the implication was so strong, not only did members of the public leave the Hearing, believing it was ended, the press also left the Hearing, believing it was ended.

Potentially, when the board broke from the executive session, and sat as members in the Hearing, the board placed itself in violation of the PA Sunshine Law as it did not give prior notice it was going to continue the Hearing after the executive session.

The Board did not enable all of the public the opportunity to speak on agenda items before the board took a vote on the agenda item.

Also, given the fact the board convened an executive session and the press and public are excluded, the board must face scrutiny and suspicion per what members talked about when in executive session.

Attendees of the Fayette Zoning Board Hearing have potential cause to claim violation of the Sunshine Act.  Grounds for such may be found in a former case.

Sunshine law application to zoning hearing board deliberations and decisions.

Kennedy v. Upper Milford Twp. ZHB Cite as WL 776261, Pa. Cmwlth., 2001.

Cross Reference: The Sunshine Act, 65 Pa. C.S. 703, 704, and 710.

This decision provides a clear and concise analysis of the impact of the Pennsylvania Sunshine Law (65 Pa.C.S. Section 701 et. seq.) on deliberations and decisions made by a zoning hearing board. This case arose from the initial approval by the Zoning Hearing Board for a variance and special exception to permit the Pa. Turnpike Commission to erect a 180 foot high tower on property owned by it in the Township.

In a Declaratory Judgment action filed by the protestants, the Lehigh County Court of Common Pleas affirmed the decision of the ZHB and the protestants appealed.

The central issue considered by both the trial court and the Commonwealth Court was the impact of the ZHB’s conducting of an “executive session” following which, without discussion, the Board rendered its decision. The ZHB decision was, in fact, a compromise between the 175 foot height that the testimony indicated would have been adequate for the Turnpike’s purposes and the 200 foot height requested by the Turnpike. The Board approved the variance and special exception to permit the tower to be 180 feet.

Appellants claimed that the actions of the ZHB violated the provisions of the Sunshine Act. The Commonwealth Court agreed and reversed the lower court. Specifically, the Appellants objected to the fact that the ZHB had recessed into a private session, and upon their return, without further discussion or comment from the public passed a motion approving the “compromise” approval of the Tower.

http://www.landuselawinpa.com/court/sunshine2.html

Attendees should consider filing a complaint with the Fayette County Court of Common Pleas as specified within the required time-period for such action per the Fayette County Zoning Board’s perceived violation of the PA Sunshine Law.

May 7, 2014 NES DAY

Resources:

Pennsylvania News Media Association

-Newsroom Legal Update (November 2, 1999)

Misconceptions about the Sunshine Act abound, Part 2

Last month, Newsroom Legal Update looked at the most important defined term in the Sunshine Act, “meeting.”

The Sunshine Act generally requires agencies to hold meetings open to the public whenever they take official action and conduct deliberations. However, the open meeting requirement is subject to some exceptions.

Conferences – training programs or seminars designed solely to inform agency members about their official responsibilities – may be closed to the public. Caucus and ethics committee meetings of the state House and Senate are also closed. A board of auditors does not have to open its working sessions to the public as long as the board’s official action with respect to the records being audited is taken at an open meeting.

The exception that generates the most litigation and frustrates more reporters and citizens than all other exceptions combined is the executive session exception – the subject of this month’s installment on misconceptions of the Sunshine Act.

The Act defines an executive session as “[a] meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.”

Based on the PNA legal department’s hotline calls, the greatest misconception about the executive session is that it can be invoked whenever agency members believe it would be in their best interest to resolve a matter in private. After watching some agencies at work, one could be forgiven for assuming that executive sessions are the meeting norm and open meetings are, in fact, the exception to that norm.

Fortunately, the Sunshine Act clearly establishes that the legitimate purposes of an executive session are fairly limited. First and most importantly, official action on matters discussed at an executive session must always take place at an open meeting. In other words, an executive session at which agency members take a vote, establish policy, decide agency business or make official recommendations is an unlawful meeting. Given the incidence of hotline calls regarding decisions made during executive sessions, it seems that many officials are unaware of this limitation as well as the statutory admonition that an executive session shall not be used “as a subterfuge to defeat the purposes of [the open meeting requirement].”

The other important limitation is that an executive session may be held only for the reasons stated in the Act. The Act does not give agency members the discretion to hold a meeting behind closed doors because they, the members, have some reason of their own for believing that would be best.

http://panewsmedia.org/legal/openmeetings/sunshineactmisconceptions

Fayette County Zoning Hearing Board  - Three Year Term
Meets 10:00am Wednesday at Public Service Building as Advertised in the Legal Notices

Purpose-Conducts formal public hearings and may reverse, affirm or modify the order, requirement, decision or determination appealed and provide interpretation of the Zoning Ordinance.

Term Expires

Paid Board Members
Andre Walters - Full Time
Edward Payson – Full Time
Robert Guerriere – Full Time
Deborah E. Marella – Alternate
Gwen Clarke – Alternate
Wendy O’Brien - Solicitor

http://www.co.fayette.pa.us/BoardsandAuthorities/Pages/Members.aspx

Section 708. Executive sessions

(a) Purpose. An agency may hold an executive session for one or more of the following reasons:

 

(b) Procedure. The executive session may be held during an open meeting, at the conclusion of an open meeting, or may be announced for a future time. The reason for holding the executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session…

http://www.openrecordspa.org/sunshine.html 

 Pennsylvania Municipalities Planning Code
Quick Guide

Zoning Hearing Board and Other Administrative Proceedings (Article IX)

General Provisions901, 904
  • Every municipality that enacts zoning must create a zoning hearing board (board)
Membership, organization, and expenditures903, 905, 906, 907
  • 3-5 members, residents of the municipality, as determined and appointed by governing body resolution
  • 3 member board serves 3 year terms staggered yearly; 5 member board serves 5 year terms staggered yearly
  • 3 alternate members may be appointed for 3 year terms with duties and rights as further specified in 903(b)
  • The board shall elect officers to serve one year
  • A majority of board members shall constitute a quorum; when a quorum is lacking, the board chair shall designate alternate(s) to sit on the board to make a quorum, said alternate(s) serving in all proceedings of a case
  • Members and alternates may receive compensation
  • Board may employ or contract for necessary services
Hearings908
  • Board shall conduct hearings and decisions as follows:
  • Public notice shall be given; written notice shall be given to applicant, zoning officer, other designated persons, and persons making request, and posted on the affected land at least 1 week before the hearing
  • The governing body may require reasonable fees in accord with Section 908(1.1)
  • The first hearing shall commence within 60 days of the application, unless extension is agreed; next hearings shall occur within 45 days of prior hearing; cases shall be completely presented within 100 days of the first hearing as further specified in 908(1.2)
  • Hearings shall be conducted by the board or a hearing officer appointed by the board; the board shall render the decision and/or findings, though the applicant may waive same and accept a final decision or findings by the hearing officer
  • Board or hearing officer shall keep a stenographic record, costs of which are born in accord with 908(7)
  • Other procedures specified in 908(3), (4), (5), (6), (8)
  • The board or hearing officer shall render a decision, or written findings when no decision is rendered, within 45 days of the last hearing; content of decisions and further provisions are found in 908(9)
  • Except for 916.1 challenges, where the board fails to render a decision within prescribed time limits or fails to commence, conduct, or complete hearing(s) as prescribed, decision shall be deemed rendered in favor of applicant unless agreeing in writing to an extension of time – additional details in 908(9)
  • Final decision and findings shall be delivered to the applicant or mailed not later than the day after the decision; board shall mail a brief notice of decision or findings and the location where the full decision may be examined to other persons requesting same
Mediation908.1
  • Parties to proceedings in Articles IX and X-A may utilize mediation to supplement and aid in completing such proceedings – additional details in 908.1
Zoning hearing board jurisdiction909.1, 910.2, 912.1
  • The board shall have exclusive jurisdiction to hear and render final adjudications in the following:
  • Substantive challenges to the validity of any land use ordinance, except for curative amendments
  • Procedural challenges to the validity of any land use ordinance raised within 30 days of the effective date
  • Appeals from determinations of the zoning officer
  • Appeals from determinations of the zoning officer or municipal engineer regarding flood plain regulations, or administration of erosion and sedimentation controls or stormwater management in land use ordinances except for development involving applications covered by Articles V and VII
  • Variances to the zoning or flood plain regulations meeting criteria and further provisions in 910.2
  • Special exceptions in the zoning or flood plain regulations in accord with 912.1
  • Appeals from any officer charged with administering TDR or performance density provisions in zoning
Governing body and planning agency jurisdiction909.1, 913.2
  • The governing body shall have exclusive jurisdiction to hear and render final adjudications in the following:
  • Zoning conditional uses, following specific provisions for hearings, decisions, and time limits in Section 913.2
  • Curative amendments
  • Amendments to land use ordinances
  • The governing body, or planning agency if so designated, shall have exclusive jurisdiction to hear and render final adjudications in the following:
  • PRD applications
  • Subdivision and land development applications
  • Appeals from determinations of the zoning officer or municipal engineer regarding administration of erosion and sedimentation controls or stormwater management in land use ordinances for development involving applications covered by Articles V and VII
  • Certain permits under an official map in accord with Sections 405 and 406
Parties who may appeal and time limits913.3, 914.1
  • Appeals may be filed with the board by the landowner affected, any officer or agency of the municipality, or persons aggrieved.
  • Requests for a variance or special exception may be filed by a landowner or tenant with landowner’s permission
  • If seeking to reverse or limit approval of a development, a proceeding with the board must be filed within 30 days after approval
Stay of proceedings915.1
  • After a proceeding is filed and while it is pending before the board, all land development related to the proceeding and all related official action shall be stayed unless the stay would cause imminent peril to life or property
  • When a proceeding is filed to reverse or limit the approval of a development, the applicant for the development may petition the court to order persons filing the proceeding to post bond; court action on the bond shall follow provisions in 915.1
Validity of ordinance; substantive questions916.1
  • A landowner who desires to challenge the substantive validity of a land use ordinance may submit either:
  • A validity challenge to the zoning hearing board, or
  • A curative amendment to the governing body
  • A person aggrieved by a permitted use or development who desires to challenge the validity of a land use ordinance must submit the challenge to the zoning hearing board
  • A validity challenge shall follow procedures and criteria in 916.1(c), including:
  • It must be in writing and contain reasons
  • If the board finds the challenge has merit, its decision must include recommended ordinance amendments to cure the defect(s)
  • In reaching a decision, the board must consider impact to roads, public facilities, regional housing, natural features, preservation of agriculture and other land uses essential to public health and welfare, plus consider suitability of the site for proposed uses
  • The board or governing body has 45 days of the last hearing to render a decision
  • A deemed denial occurs if the board or governing body does not render a decision in 45 days or hold a hearing within 60 days after the request is filed
  • For a zoning validity challenge involving multi-municipal zoning ordinances and plans, the board shall give consideration to the entire area covered by the ordinance or plan in accord with Section 916.1(h)
Procedure for preliminary opinion916.2
  • A landowner may seek a preliminary opinion on the compliance of a land use or development in accord with 916.2 in order to advance the opportunity for a challenge
Applicability of amendments917
  • An applicant for a special exception or conditional use is entitled to a decision in accord with the ordinance in effect at the time of application, even if it is subsequently amended – details in 917

Right-To-Know Law Answer Excerpts: Prison Referendum Group/Fayette County Election Board/Bureau Excerpts

Posted in Election Board of Fayette County, Fayette County Prison Referendum, PA Election Code, Pennsylvania

NES received an answer to a Right-To-Know law request seeking the e-mail exchanges between the Prison Referendum Group and the Fayette County Election Board/Bureau.

The following files contain two pertinent excerpts:

1.  An Outline For Referendum Petition Requirements adopted by the Fayette County Election Bureau on August 27, 2012 – RefPetOutline20120827

2. A Legal Memorandum authored by Fayette County Election Board/Bureau Solicitor Sheryl Heid and the E-mails showing Commissioner Al Ambrosini’s and Commissioner Vincent Zapotosky’s responses to same – Legal Mem and Response

From the two excerpts, it is abundantly clear that a formal rejection of a filed referendum petition must take place within the confines of an advertised, public meeting subject to Sunshine Act provisions.  The public meeting never took place.

Rep. Tim Mahoney’s Chiding Words to PSP Expose His Rank Hypocrisy

Posted in PA Open Records Requests Denials Appeals, Where are the vouchers?

Update to post below:

In a press release http://pahouse.com/Mahoney/PAHouseNews.asp?doc=30290 issued on October 1, 2013, titled “Mahoney vows to fight state police appeal of trooper staffing decision,” Rep. Tim Mahoney makes the following hypocritical remarks:

“I’m very disappointed that the state police powers-that-be took this road,” Mahoney said. “The real threat to public safety is having an inadequate number of troopers, which I believe is the case. They’re wasting tax dollars to go to court, and that’s money that could be put toward hiring more troopers.” [Emphasis added.]

“I remain baffled as to why the state police high command believes public safety is best served by keeping people in the dark as to trooper numbers,” Mahoney said. “They’ve chosen to defy the Office of Open Records and public opinion, and are wasting precious tax dollars in the process. We’ll see them in court.” [Emphasis added.]

Rep. Mahoney’s remarks are hypocritical because he, too, is using taxpayer-funded resources (see post directly below) “to go to court, and that’s money that could be put toward hiring more troopers.” Or, better yet, these are monies that could be refunded to taxpayers. In Rep. Mahoney’s warped mindset, it seems that others who use taxpayer-funded resources waste precious tax dollars; however, when he uses taxpayer-funded resources to further his personal agenda, that’s not hypocritical.

Oh, yes, it is.

Pennsylvania State Police v. Tim Mahoney – PSP Appeals OOR Determination, Part II

Posted in PA Open Records Requests Denials Appeals, Pennsylvania, Where are the vouchers?, worst open records reform in history of PA legislative records limited to 19

Two attorneys have entered their appearance on behalf of State Rep. Timothy S. Mahoney (D-51) in Pennsylvania State Police v. Timothy S. Mahoney, Docket Number 1746 CD 2013.

See:

http://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=1746+CD+2013

The attorneys listed are Tara Lynn Smith and Eric Scott Fillman.  The address for both attorneys is 620 Main Capitol Building, Harrisburg, PA 17120, and a search of the attorneys’ names on the PA General Assembly Legislative Directory search engine confirms that both Eric Fillman and Tara Smith are attorneys for the House Democratic Caucus.  The directory lists Fillman’s position as Leadership Legal Counsel  and Smith’s position as Deputy Chief Counsel, Office of House Chief Counsel.

See:  http://www.legis.state.pa.us/cfdocs/admin/ld/gen_search.cfm?office=All&agency=HSE

Other searches for information on Fillman and Smith turned up the following information:

See:  http://www.legalspan.com/catalog2/faculty.asp?UserID=D2003022858227190101158%20%20%20&OwnerColor=%23003366&recID=20130604-229194-95453

See also:  http://www.linkedin.com/pub/tara-smith/43/9bb/225

Their salaries can be obtained on the PennWatch website.

Employee Salary Report

As of 11/15/2013

House of Representatives
Last Name First Name Position Annual Salary

Wage

Fillman Eric S. Leadership Legal Counsel

$112,658

Employee Salary Report

As of 11/15/2013

House of Representatives
Last Name First Name Position Annual Salary

Wage

Smith Tara L. Deputy Chief Counsel

$76,050

Source:  http://www.pennwatch.pa.gov/employees/Pages/Employee-Salaries.aspx

One wonders whether Rep. Mahoney has lost the number to Grogan Graffam, P.C., the law firm that represented the Friends of Tim Mahoney campaign committee in its voucher-hiding quest!

In short, Rep. Tim Mahoney (D-51) is using taxpayer-funded representation in his legal disagreement with the Pennsylvania State Police (PSP) over its appeal of an Office of Open Records (OOR) Final Determination that it had to provide the number of employees it has at the Uniontown barracks.  The PSP has argued that release of the information is exempt under the Right-To-Know law because it impinges on public safety, and the law allows for an exemption in such cases.

Rep. Mahoney wasn’t kidding when he chided the PSP for appealing the OOR ruling, saying that it would cost taxpayers more money, implying that it was going to cost the public for the PSP to have counsel represent it.

He conveniently left out the fact that it would be he, too, who would resort to using taxpayer-funded resources to represent himself in the case, as well.

If that’s not pot-kettle-black hypocrisy, nothing is!

Pennsylvania State Police v. Tim Mahoney — PSP Appeals OOR Determination

Posted in PA Open Records Request, Pennsylvania, Where are the vouchers?, worst open records reform in history of PA legislative records limited to 19

With apologies to readers, blog.com servers lost this story which was originally Posted 09/28/2013:

Yesterday, the Pennsylvania State Police filed an appeal in the Commonwealth Court of Pennsylvania (See:  1746 CD 2013) of the Final Determination  (See:  OOR Final Determination Mahoney Vs PSP) made by the Pennsylvania Office of Open Records (OOR) in State Rep. Tim Mahoney’s open records request for the number of  state troopers at the Uniontown barracks.

According to the OOR Final Determination, on June 17, 2013, Rep. Tim Mahoney (D-51) filed a request for three records:

  1. The current working trooper complement assigned to the Uniontown barracks of the [PSP];
  2. The number of unfilled/vacant trooper positions in that complement; [and]
  3. The number of troopers in that complement who are eligible for retirement as of June 30, 2013.

On July 24, 2013, the PSP granted access to records for Items 2 and 3 of the request; however, citing the public safety exception in the Right-To-Know law, the PSP denied the request for Item 1 — the current working trooper complement assigned to the Uniontown barracks.

On July 29, 2013, Rep. Tim Mahoney appealed the denial of Item 1 to the OOR.

In its Final Determination of August 28, 2013, in a ruling authored by OOR Assistant Chief Counsel J. Chadwick Schnee, Esq., the OOR held that the PSP failed to meet “its burden of proving that Item 1 of the Request is not subject to public access.”

Citing the personal security exemption in the RTKL, the PSP argued that Section 708(b)(1) of the RTKL exempts from disclosure records that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”  65 P.S. Sect. 67.708(b)(1)(ii).  The OOR’s Final Determination, citing case law, held that belief alone, even if reasonable does not meet the heightened standard of meeting the burden for the exemption, and that “”more than mere conjecture is needed” to establish that this exemption applies.””

The PSP also cited an exemption for public access for “a record maintained by an agency in connection with … law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety … or [a] public protection activity ….” See 65 P.S. Sect. 67.708(b)(2)

However, in its Final Determination, the OOR ruled that the PSP did not meet the second of two elements necessary to claim the exemption: that the release of the record must be “reasonably likely” to threaten public safety.

The PSP disagrees and argued in the materials provided in the course of the Mahoney appeal that “”[t]he public benefits from the uncertainty as to how many law enforcement professionals are operating in their local area” and that individuals monitoring PSP barracks could make estimations as to trooper levels at given times.””

The final outcome will be decided in the Commonwealth Court of Pennsylvania, or if an appeal is made from that ruling, the Pennsylvania Supreme Court will decide.