Today's one-liner: “In a republican nation whose citizens are to be led by reason and persuasion and not by force, the art of reasoning becomes of first importance.” T Jefferson
Yesterday, I told you about Allegheny County, another Home Rule County. Its Charter was adopted in 1998, making it 20 years younger than Northampton County's 1978 model. Some provisions in Allegheny's Charter would be of immeasurable assistance to good government in Northampton County.
Home Rule Charter Changes
In Northampton County, Council is increasingly cranking out amendments. We are up to about 20 of them so far. They go out to the voters as a referendum vote. That's like a judge's retention vote. Everybody says Yes, even if they have no idea what is being proposed.
Let me give you an example. Several years ago, Northampton County Council members decided they wanted to be called Commissioner. It makes them sound more important. That required a change to the Charter. The deceptive question put to the voters was whether there should be nine commissioners, not whether to change the appellation being used. People voted Yes because they thought they were voting to establish a nine member Council. They had no idea that what they really were doing was inflating egos.
Without question, Northampton County's Home Rule Charter is in serious need of an overhaul. There are serious questions in nearly every Article. But instead of the piecemeal and sometimes frivolous approach taken by Northampton County Council, here's what Allegheny's Charter provides:
a)
A County Government Review Commission shall be established five years after the effective date of this Charter and every ten years thereafter. The Commission shall study the Charter and County government, including the organization, practices and responsibilities of all County departments and agencies. The Commission shall evaluate the effectiveness, efficiency and equity of County government and this Charter. The Commission may make recommendations to the people of the County on County government and may recommend amendments to this Charter.
b)
The Commission shall be composed of nine members who shall serve one-year terms. The members shall be voters of the County, five of whom shall be appointed by County Council and four of whom shall be appointed by the Chief Executive. The political party affiliation, racial, geographic, age and gender diversity of the County shall be considered in the appointment process. No County officer, employee, or member of an agency shall be a member of the Commission. The Commission shall submit a final report to the people of the County on the Commission's findings and recommendations within one year after appointment of the Commission.
Instead of piecemeal amendments that are often poorly considered, a better approach would be the establishment of a government review commission every ten years. Members, none of whom would be employed by the county, would be appointed by the Executive and Council and would have one year to recommend changes. I am aware that any recommendation requiring a change in the form of government would require the election of a home rule charter study commission. Most changes, however, would make no changes in the actual form of government. Northampton County Council could easily adopt an ordinance establishing this Commission, and could still reserve the power to recommend their own changes in case of an emergency.
Interaction With Executive Branch
Allegheny's Home Rule Charter specifically provides that County Council should refrain from micromanaging the Executive branch.
County Council and its Members shall deal with the Executive Branch exclusively through the Chief Executive or Manager except for the purpose of obtaining information and advice. Individual County Council Members shall not give orders or instructions, either publicly or privately, to employees of the Executive Branch.
Northampton County's Home Rule Charter contains no such provision. but it's good advice. County Council provides oversight but should refrain from telling county employees what to do.
At their July 20th meeting, Northampton County Council rejected a contract for a voluntary and exclusive employee health center. It was a close vote, with 5 voting No and 4 voting Yes. An "utterly disappointed" Executive Lamont McClure stated this proposal would have saved taxpayers $1.5-2 million per year. But it's by no means dead. When a new County Council takes office in January, this will almost certainly get a second hearing and is almost certain to pass. So I'm hard put to understand why Council member Tara Zrinski, who was on the losing side, would want a re-vote two weeks later.
Conducting a vote last night would have violated the Sunshine Act. Under recent changes to the law, a matter must be on an agenda advertised at least 24 hours before a meeting. When made aware of this, Zrinski moved, with Kevin Lott seconding, to place the health center on the agenda for the next meeting.
Her motion failed by the same margin that the health center resolution failed two weeks earlier. She, Kevin Lot, Ron Heckman and John Cuisck supported it. It was opposed by John Brown, Tom Giovanni, John Goffredo, Lori Vargo Heffner and Kerry Myers.
Here's where she went wrong. She made a motion instead of just presenting a resolution. Under the Home Rule Charter, "Any member shall have the power to introduce a proposed resolution at any meeting of the County Council." See Section 604(b).To avoid a possible violation of the Sunshine Act, I'd agree that each Council member has the power to introduce a resolution so long as it is advertised 24 hours in advance.
How is this accomplished? By simply notifying the clerk. She has no obligation to seek approval from the Council President or a majority of County Council. Each Council member has the power to introduce a resolution.
The Home Rule Charter also provides, however, that "Each proposed resolution shall be introduced in writing and in the form required for final adoption." See Section 604(c). Zrinski failed to do that. The Clerk must circulate this written resolution to all other members of Council. See Section 604(d).
So Zrinski needed no approval from anyone to introduce a resolution. But it had to be in writing and the Clerk is required to circulate and advertise.
Despite last night's vote, Zrinski could simply provide a written resolution to the Clerk and inform her she wants it on the next agenda. That is her right as an individual Council member.
It would, however, be foolhardy. It's clear her resolution would fail.
At last night's meeting, Council Solicitor Chris Spadoni noted that Roberts' Rules of Order provide for consideration of a vote only if someone in the majority wants it reconsidered. Thus, under Roberts' Rules, Zrinski would be unable to seek reconsideration.
There are two problems with this argument. First, County Council never adopted, in the form of an ordinance, any rules of order governing the conduct of meetings. It's pretty much the Wild West. Second, even if it had, that particular rule would be contrary to the express provision of the Home Rule Charter.
My takeaways?
First, all Council members should familiarize themselves with The Home Rule Charter. Had Zrinski done so, she would realize that all she needed to do was present a resolution to the Clerk for consideration at the next Council meeting.
Second, Council really needs rules of order. This will avoid the quagmires in which they often find themselves and will prevent individual Council members from trying to dominate meetings by weighing in on topics repeatedly.
Last week's meeting of Northampton County Council's governance committee was a doozy. I've told you of Council member Lori Vargo Heffner's desire to micromanage what should be an independent pay study. I've detailed the misinformed derision that wannabe Council Solicitor Ron Hackman directed at Executive Lamont McClure's proposed gift ban ordinance. I've chronicled Council member John Cusick's desire to have vacancies among elected officials filled by election instead of lengthy appointments. But there's more. Council also considered, and not for the first time whether the Sheriff should be elected instead of appointed. They also pondered whether the Home Rule Charter needs an enema in the form of a government study commission, They got contradictory answers from Council Solicitor Chris Spadoni on whether they, or the voters, ultimately decide on government study recommendations.
Council member John Goffredo noted that only two counties appoint the Sheriff and is leaning towards the belief that the people should make this call, as they do nearly everywhere else. He asked if there's any reason why the voters should not be asked to approve a change from appointed to elected by referendum.
There is. This can only be done by establishing a home rule charter study commission. Council member John Cusick noted that some argue that changing the Sheriff from appointed to elected is a change in the form of government and would require a home rule study commission. Actually, there's no argument. In 2014, Pennsylvania's Supreme Court ruled that changing the Sheriff from elected to appointed would be a change in the form of government and hence would require the election of a government study commission. It necessarily follows that changing the Sheriff from appointed to elected is also a change in the form of government that would require a government study commission.
At this point, wannabe County Council member Chris Spadoni suggested that it might be prudent to establish a government study commission. Cusick warned that this is a "potential can of worms. You could end up with three Commissioners and an elected Recorder of Deeds."
Council member Ron Heckman asked Spadoni, who actually is the Solicitor, what Council does with the report of the government study commission. "To be clear, the voters have the say," was Spadoni's first answer. Thirty seconds later, Spadoni contradicted himself and said the County Council could decide which parts of the government study commission's recommendations go to the voters.
His first answer was the correct one. The final decision on recommendations of a government study commission lies with the voters, not County Council.
Is Northampton County government working? Could it be improved. This time next year, you'll be able to answer that question yourself. After a contentious hearing, a divided Northampton County Council voted last night to ask voters whether its time for a government study commission. Voting in favor of this measure were Council President John Cusick, Hayden Phillips, Matt Dietz, Mat Benol, Seth Vaughn and Bob Werner. Voting No were Glenn Geissinger, Peg Ferraro and Ken Kraft.
The ordinance, which was sponsored by Phillips and Werner, originally called for voters to decide in next Spring's primary. But it was delayed at Geissinger's suggestion until the general election next November, when more independents would be likely to vote.
If approved by voters, a nine-person government study commission will study Northampton County's existing form of government. It could recommend a return to the three-Commissioner form of government that exists in most counties. Or it could suggest retaining the Home Rule Charter government with some changes, or no changes at all.
The commission, which would consist of nine citizens, will have 18 months to finish its job.
Northampton County's Home Rule Charter has been in existence since 1978. Phillips explained that whenever he talks to people, he walks away with a laundry list of proposed changes.Over the years, numerous amendments have been adopted. In addition, parts of the Charter, like the recall provisions for elected officials, have been declared unconstitutional. Other portions of the Charter are ambiguous. Some positions established, like the Director of Court Services, are considered political plums that an Executive can hand out to supporters. Should the Sheriff be elected? Should the Controller be appointed? Many think that high-ranking officials should be required to live in the county. Some argue for term limits.It is unclear whether the Voting Registrar reports to the Executive or the Elections Commission. He believes that a government study "will make it better than what we have right now." Instead of "piecemeal changes," he said a government study "will look at the whole picture."
But Peg Ferraro was disturbed that "just anyone could run for this" with no qualifications. "We all ran for the office we're in, and we're running the county budget without a requirement," retorted Matt Dietz. She also said a substantial budget would be needed, but Cusick said Council would be able to control over how much is spent.
"I think this is a complete waste of time, waste of money," said Kraft. "The problems that you're citing are in the Administrative Code, not the Home Rule Charter."
The problems cited by Phillips are in the Home Rule Charter..
When Cusick and Dietz attempted to answer Kraft, he cut them off. "I'm not asking you," he said to hem both. "I think you're just grandstanding, you're trying to deflect on whatever other nonsense is going on," Kraft charged Phillips. "It's an election year. It's a lame duck Council. Put this off until next year, and if you're here, vote for it."
"I can't believe you're saying I'm doing this to grandstand," responded Phillips.
"You are."
"I'm not."
Kraft also objected that "just anybody could tell us how to run the government. No background. No knowledge."
"That's democracy,"Cusick reminded Kraft.
Geissinger also objected to nine individuals "with who knows what background" demanding a $500,000 budget.
Cusick noted that an attempt to do a government study 12 years ago failed in a 5-4 vote."It's been 12 years since then, and we owe it to ourselves to ask this question - is it working?"
He added he'd like to study whether there should be an appointed administrator and a Council. He noted that most townships have appointed managers.
He claimed that the argument that just anybody can run without qualification is ridiculous. That's democracy," he said, repeating a point he made earlier. "If you're a citizen who is registered to vote, and you live in the community, well, that's your right unless you're running for an office that requires a specific qualification, like a judge or district attorney."
Kraft attempted to table the matter, but his motion failed.
After the measure passed, Ferraro expressed her wish that knowledgeable people like Gerald "Jerry" Seyfried and Frank Flisser, the Council's former Clerk, would consider serving on a government study.
Is it legal to balance a budget with borrowed money? More specifically, is it legal to balance Northampton County's 2015 Budget with a $20 million line of credit, as Executive John Brown has proposed? He conceded last night that the line of credit is needed to balance the budget, though it may never be necessary to use it if the County holds the line on spending.
Here's what the Home Rule Charter, Northampton County's Constitution, says:
Section 703(b):Balanced Budget. The total of proposed expenditures shall not exceed the total of anticipated funds available.
Section 707: "No revenues from the sale of bonds or other forms of indebtedness shall be appropriated to finance annual operating programs or services, except emergency notes and bank borrowings in accordance with § 1.7-705(b)." [Emphasis added].
Section 705(b): "Emergency Appropriations. To meet a public emergency affecting life, health, property, or the public peace, the County Council shall have the power by emergency ordinance to make emergency appropriations in accordance with the provisions of § 1.6-603. To the extent that there are no unappropriated revenues available to meet such appropriations, the County Council shall have the power by emergency ordinance to authorize the issuance of emergency notes or bank borrowings, which may be renewed from time to time, but the emergency notes or bank borrowings of any fiscal year shall be paid no later than the last day of the next fiscal year."
Northampton County's Home Rule Charter commands a balanced budget. It bars borrowing money for operational expenses, barring an emergency affecting life, health, property or public peace. There currently is no such emergency. Approving a budget now that authorizes the borrowing of money later, and for the express purpose of paying operational expenses to balance the budget, is completely illegal.
A confident Brown stated he is waiting for a legal opinion, which tells me he's getting one that tells him what he wants to hear as opposed to what the law says.
Though Glenn Geissinger has been reduced to a cheerleader who endorses whatever Brown wants, conservative Hayden Phillips is another story. "I don't think I can sign on to that. This is Basic Accounting 101."
Council has asked for an opinion from their Solicitor, Phil Lauer. I suspect what he says tonight will determine whether Brown's Budget is dead on arrival.
Northampton County Controller Steve Barron blatantly violated the Home Rule Charter for two reasons: First, our "full time" Controller was spending twelve hours in the middle of every work week teaching at Northampton Community College; Second, he was teaching at a College funded by the County, and whose funds he is supposed to audit. He betrayed the public trust and broke his own word to voters. He'll have to explain that if he wants to run again, but his resignation as a teacher should end the County's inquiry. It stops the violation.
Sure, Council could convene acrimonious hearings and insist on filing a quo warranto proceeding. They could sanction him, condemn him and break out the rope. But they'd be on their own. DA John Morganelli only gets involved when there is no factual dispute and pure questions of law. An already busy busy Council Solicitor would have to develop a record and litigate the case.
It would be great political theater. I'd love it. I'd get enough material for a year's worth of blogs. But sooner or later, it would paralyze County government. There's no good reason to replicate what is going on federally.
I've seen Barron, Lamont McClure and others go after Executive John Stoffa in a witch hunt. I was dragged through court after court, too. Barron, under the color of his office, even began calling some of my title searching customers with questions about me, perhaps trying to scare them away.
But when John Stoffa and John Cusick both had a chance to unload on Barron, they passed. Some of you think Barron should be prosecuted, and perhaps you're right. But I believe Stoffa and Cusick are guided by the best interests of the County, not some vindictive political battle. They both displayed something rarely seen - statesmanship. They have a budget to debate and adopt and bridges to repair. Now that the Controller has been duly reminded that full time means full time, as he himself once acknowledged, we can move on, and Barron can pretend he did nothing wrong.
In the meantime, I have a new job teaching at the Community College, starting today. I plan to flunk every one of those little bastards.
Northampton County Controller Steve Barron, who is paid $65,000 a year, is teaching at Northampton Community College in seeming violation of recent changes to the County's Home Rule Charter. Because the college is a recipient of money from the County, it might also be a conflict of interest.
Considered the County's constitution, the Home Rule Charter clearly states that the Controller "shall devote full time to the office, and shall not actively engage in any other business or occupation." But three days a week, in the middle of the workday, Barron teaches two classes. This consumes about 12 hours out of the 40 hour work week.
On weekends, Barron also works as a referee at youth football games. This technically is a violation, too. H he is actively engaged in another business or occupation. But nobody seems particularly troubled by what the Controller does outside of regular business hours. One Council member has even suggested Barron should just teach at night.
But there are 393,779 other reasons why Barron should not be teaching at the Community College. As Controller, it is his responsibility to audit not just County departments, but organizations that receive money from the County. According to Barron's own webpage, it is his responsibility to "ensure compliance with laws and regulations, and strengthen internal controls safeguarding County assets."
That includes Northampton Community College. Since 2010, the College has received $393,779 from the County. This year alone, the College has received $62,508.95 so far. Most of this seems to be related to Emergency management training. There are also outright grants for $50,000 in 2011 and $25,000 in 2012.
These funds are audited by a person who himself is being paid by the College, Barron gets $2,895 per course taught. This year, he stands to make $11,580 from the College.
The County's Home Rule Charter speaks to this issue, too. It provides that if an elected official like Barron has any interest in any entity doing business with the County, he "shall disclose such interest by sending a letter setting forth such facts to the Clerk of Council who shall distribute copies of the letter to the members of the County Council."
According to the Charter, it is then up to County Council to determine whether a conflict exists. If so, it has the power to void any contract.
But Barron never made the disclosure that seems to be required by the Home Rule Charter. So there may actually be two violations. First, the County's full time Controller is actively engaged in another profession, and during regular business hours. Second, Barron has failed to disclose his interest in the College to Council, even though he has an obligation to audit the funds received from the County.
Do you want a professional in charge of the County's Deputy Sheriffs or would you rather have an elected hack? In Northampton County, voters have already answered that question. In an exercise of direct democracy, they said they want appointed row officers. Here's how Jerry Seyfried, a Home Rule Charter expert, puts it.
"In 1978, the row offices were abolished, not by politicians, but by the voters of Northampton County. The voters, through the process known as voter referendum, have told you they don't want row offices. The change that was implemented provided a system of checks and balances like no other in the history of the County. The efficiencies that came with the elimination of the row offices and the adoption of the Northampton County Home Rule Charter resulted in cutting property taxes almost in half."
If you're still on the fence about this issue, an excellent argument against elected row officers and sheriffs appears in an Express Times account about an elected Beaver County Sheriff, who's just been arrested and charged with some batshit cRaZy shenanigans.
He told a campaign worker that he'd chop off his hands and eat them.
He told an online reporter that if he asked too many questions or got too cute in his stories, he'd beat him worse than he used to beat the [blacks] in Aliquippa.
He also made conditional threats to "blow out the brains" of several people, including a Prothonotary and another reporter.
Beaver Countian's John Paul, who has had to endure the Sheriff's wrath, says this:
"Small town politics and cronies with big time influence had blanketed his misdeeds from view for far too long. It makes me physically ill when I think of how many he has hurt over his 40 year career, abusing both power and persons to achieve his own self-interests."
With appointed row officers and sheriffs, there are less small town politics or cronies with big time influence.
The Empire has stuck back. In a detailed pleading called an "Answer and New Matter", Northampton County Solicitor Dan Spengler has rejected DA John Morganelli's contention that he has the power to promote and set salaries in his own office, so long as there's money for it in his budget. Instead, Spengler maintains that Morganelli is actually circumventing the independent power of County Council to set salaries and create new positions. Morganelli is bound by the Home Rule Charter, says Spengler, which creates a system for raises to ensure professionalism.
Spengler also denies that Council Solicitor Phil Lauer (Northampton County has both a County and Council Solicitor representing two branches of government) stipulated that Morganelli is correct. He adds that neither Stoffa not Human Resources could implement the DA's payroll requests without violating the Budget Ordinance as well as the Home Rule Charter.
Council Solicitor Phil Lauer is staying out of this so far.
It is unclear when this lovers' quarrel will be resolved by the Court of First Guess. But since Morganelli is seeking a mandamus and a peremptory judgment, I suspect the men (and women) in black will be hearing it soon.
Yesterday, I told you that Northampton County DA had withdrawn his mandamus action against Executive John Stoffa because it appeared that his specific concerns about wage hikes for four Assistant DAs were being addressed. Looks like it's back on again. He re-filed his mandamus yesterday.
I apologize in advance for a lengthy post, which is probably not of interest to most of you.
The Facts
The big issue is the power and independence of his office. But the more specific issue is his desire to get more money into the pockets of four Assistant DAs. Of these four, he also wanted to promote two to supervisory roles. But here's the problem. Only one of these supervisory roles is open as a result of a vacancy. Stoffa told Morganelli he needed Council's approval for that second position.
After thinking things over, Morganelli decided that he would just go for one promotion, and give the remaining three raises. Interestingly, County Council Solicitor Phil Lauer agrees with Morganelli. According to his Complaint, Lauer stipulates to the authority of the district attorney to implement these personnel changes without County Council action. But the County's Human Resources office has apparently refused to go along with this resolution. So Morganelli, who feels that the independence of his office is under attack, has re-filed his mandamus.
The Home Rule Charter
Who is right? John Stoffa or John Morganelli? To answer that question we first need to look at some specific provisions in the Home Rule Charter, which is Northampton County's constitution:
Section 2.202 (11): "The County Council shall have, among others, the following powers: ... to establish in accordance with this Charter the salaries and wages of all elected officials, officers, and employes; and to set the numbers of officers and employes of each agency."
Section 2.201: "The County Council shall be the governing body of the County which shall exercise ... any residual powers of a county ... subject to the provisions of this Charter."
Section 5-503: "The District Attorney shall have the power to direct and supervise the Office of the District Attorney and its personnel, subject to the provisions of this Charter. The District Attorney, in person or through subordinates, shall have the power to appoint and remove members of the exempt service under his direction and supervision and to appoint, promote, transfer, demote, suspend, dismiss, or otherwise discipline members of the career service under his direction and supervision in accordance with the provisions of Article VIII."
Section 8-801: " The purpose of this article is to establish and maintain for the County a career service designed to attract, select, and retain, on the basis of a fair and open competitive selection process, the best qualified individuals, and to impose on elected officials, officers, and employes the highest possible ethical standards."
Section 8-804: "(a) Impartial Standards. The County Executive, or the agency responsible for the administration of the merit personnel system, with the advice of the Personnel Commission, shall establish impartial standards for each position in the career service, which shall be used to evaluate the qualifications of candidates for the career service. The evaluation of the qualifications of candidates for the career service shall be based on measures of competence and fitness such as written and oral tests, training and experience, physical and psychological examinations, and demonstrations of physical dexterity and physical ability to perform specific tasks."
Home Rule Charter Analysis: DA Is Right, But He Loses
The Assistant DAs whom Morganelli seeks to promote are either "exempt" or "career service" employees. That is unclear from his re-filed Complaint.
If they are exempt, they serve at his pleasure. Section 5-503 of the Home Rule Charter gives him the sole authority to "appoint and remove members of the exempt service under his direction and supervision." But it gives him no authority to set their salaries. According to Section 2-202 (11), that's Council's job.
Citing 5-503, Morganelli argues he the authority to "appoint, promote, transfer, demote, suspend, dismiss, or otherwise discipline" his staff. But that provision applies to members of the career service.
Even if these professional prosecutors were regarded as career service, Section 5-503 makes clear that any of Morganelli's promotions must be done in accordance with Article VIII of the Home Rule Charter. That includes a series of tests and other hurdles to ensure that "the best qualified individuals" are selected, instead of cronies. The DA has not alleged compliance with Article VIII.
Thus, under the Home Rule Charter, County Council sets the salaries and wages of assistant DAs, as well as the number of employees a DA can hire. He may get to do the hiring and firing, but Council sets the pay. Since Council controls the purse strings and adopts the budget, this makes sense.
But in this case, Council Solicitor Phil Lauer has already stipulated to Morganelli's personnel changes. That should end the matter. As Morganelli points out himself, Stoffa really has no dog in this hunt. This is strictly between Morganelli and Council. And it appears that the DA has an adequate remedy, which is merely presenting a resolution to Council for what will certainly be a perfunctory approval. I honestly don't even see a case or controversy. At least not yet.
Is Home Rule Charter Invalid?
But what about the bigger question? Is the Home Rule Charter invalid? It would seem so. Morganelli has cited caselaw that makes very clear that he, and he alone, has complete authority to hire, fire, suspend, transfer, promote, demote and otherwise manage personnel in his office. This cannot be impaired in any manner, not by collective bargaining agreements or even the Home Rule Charter.
Public Policy
I've been referring to arcane sections of the Home Rule Charter. But they serve important public policies. Obviously, a District Attorney must be able to run his office as sees fit. He cannot be a pawn of the Executive, Council or anyone else. But there are other public interests as well.
Independence v. Professionalism. - Article VIII of the Home Rule Charter is intended to foster an atmosphere of professionalism in county government. Those of us who have witnessed elected row offices are well aware of the potential for mischief when cronyism and nepotism are tolerated.
Caselaw indicates that the need for an independent District Attorney outweighs a union contract in which seniority rules. That's not so hard to swallow. But does this need outweigh career service regulations promoting professionalism? According to Morganelli, yes. And he may be right.
Independence v. Transparency. - If the DA decide to promote without notice or give raises without notice, doesn't this defeat the public's right to know?
Independence v. Sound Budgeting. - The caselaw also makes clear, and Morganelli concedes, that the people have a right to set his budget.
Any ambiguity concerning this would have to be resolved in Council's favor since they exercise any "residual powers."
Aside from the need for an independent DA, there is a public interest in open and transparent government; in ensuring professionalism; and in managing the county's finances.
All of this cries out for a review of the Home Rule Charter by Lamont McClure's Legal and Judicial Committee, which has not met in over three years. An amendment to the Charter is obviously overdue. While a DA should not be hamstrung, there is a public interest in professionalism, transparency and fiscal restraint.
At last night's County Council meeting, Lamont McClure made a pitch for an elected Sheriff, suggesting the Home Rule Charter needs to be changed. His argument was that the Sheriff reports both to the Executive and the Courts, an inherent conflict of interest. "No man should have two masters," McClure posited.
I see.
Well, if two masters are bad, wouldn't 297,735 masters be even worse? That's the population of Northampton County, according to the latest census.
What McClure is really arguing for is an elected Sheriff who owes his office to the public sector union that helps elect him.
Kinda' like McClure himself.
Executive John Stoffa told McClure he would be unable to support a referendum on this topic, noting that it would lead to unqualified people seeking the office.
Kinda' like Barron von Footinmouth, a Controller whose degree is in political science.
There was no rush to join McClure from any other Council members.
His laughable claim that Angle's appeal is moot demonstrates he has no interest in establishing precedent, and is justifiably concerned that a neutral judicial body will overturn Senior Judge Michael Franciosa's bizarre decision to disenfranchise the Slate Belt.
According to some of you, the law is very clear. Northampton County Council Prez Ron Angle's decision to serve on Bangor's School Board violates the Home Rule Charter. The nerve of that guy, thinking he can represent the people who elect him. Never mind that Leonard Zito, before he morphed into a judge with magical powers and a black robe, concluded there is no conflict when a municipal official serves on County Council. He was only an insignificant lawyer back in those dark days, notes DA John Morganelli, himself an insignificant lawyer with his eyes on Zito's judgeship.
Ironically, there's one person who does not think the law is very clear at all. During a hearing yesterday afternoon, he complained of a "serious ambiguity" in the HRC provision that may (or may not) prohibit Council members from holding other elected offices. That person is Senior Judge Michael Franciosa, whose confusing, 21-page, opinion was the reason why everybody was in Court yesterday.
Judge Franciosa actually sided with Morganelli last Friday, and gave Angle just ten days to "cure" his violation, i.e. resign from the school board, or lose his seat on County Council. That was "very generous" of him, claimed DA Morganelli. But Brian Monahan, representing Angle, is demanding a stay, arguing that the Order is crafted in a way that renders Angle's appeal rights meaningless. He's right, too. There is simply no way that you could coax a Supreme Court Justice to hear this matter before Monday, when Franciosa's ticking time bomb explodes. They're too damn busy appearing at high school commencements this time of year, putting their robes to good use.
In fact, it is something of a miracle that Angle was able to get a hearing before Senior Judge Fanciosa as soon as yesterday. Originally, his hearing had been scheduled for Friday, just one day before he'd automatically lose his County Council seat. Angle was being boxed in.
During yesterday's hearing, Brian Monahan was allowed to introduce testimony from Council Clerk Frank Flisser and the Bulldog himself. Morganelli, who previously claimed to be interested in nothing more than upholding the law, fought vigorously against allowing Council's Clerk to make very clear that our DA has been a tad selective in his enforcement of this dual office prohibition. Flisser testified to two recent instances in which a borough Councilman and borough Mayor were allowed to serve on Council. They, like Morganelli, are Democrats. Flisser also testified that their positions on other bodies presented no conflicts.
Flissser also mentioned then Council Solicitor Leonard Zito's written opinion, determining that the dual office prohibition had no application to officials who accepted no salary. "I'd be surprised if they [the Supreme Court] considered that document as having any precedential value," huffed Franciosa to cheers from DA Morganelli. And he's right, too. That opinion has no precedential value. But then again, neither does Franciosa's. Outside of Northampton County, it's meaningless until the state Supremes sing about it themselves.
Monahan also called the Bulldog to establish that ousting Angle from Council would cause "irreparable injury." According to Angle, "The citizens of Region 4 would lose the strongest voice they ever had." Of course, Angle is boasting. But does anyone, even Angle's enemies, deny that he has been the Slate Belt's strongest voice in County government?
Angle also testified that no conflict has risen as a result of his holding a seat on Bangor's School Board, but he would recuse himself if anything like that ever cropped up. "If it happened, I would step down, even from the deliberations," he said.
Morganelli wisely declined an opportunity to cross-examine Angle. He instead argued that the citizens of Northampton County who voted for the HRC are being overlooked, but that assumes they interpret the dual office prohibiton exactly like him.
Morganelli then made an incredibly foolish and very undemocratic argument. He actually suggested that the Court direct Council that Angle's seat remain vacant until the Supreme Court rules on Angle's appeal. Yes, the same man trying to strip Angle of his office is all for denying due process to the remaining members of Council, stripping them of the right to have nine members and, best of all, disenfranchising Slate Belt voters.
Whoopee!
Without commenting on Morganelli's strained argument, Franciosa gave Angle a gift on appeal. In the judge's own words, the dual office prohibition has a "serious ambiguity," and "there's an argument that can be made the other way." Franciosa went on to state that he used canons of statutory interpretation, instead of traditional grammar, to resolve this uncertainty. Well, if that's so, he has a problem on appeal. According to those canons, ambiguities are resolved in favor of the party against whom they are being enforced. It's kinda' like baseball. The tie always goes to the runner.
Add to that canon the quaint little idea that voters, not judges or DAs, should decide elections.
My guess is that Angle gets some form of stay and that, on appeal, he wins.
Monahan did a nifty little job of making a record, drawing out Morganelli's true colors, and getting Judge Franciosa to make a statement that virtually guarantees at least one winning argument.
Update 5:15 PM: When I left the Courthouse to attend a meeting in Bethlehem at 3:20 PM, the last thing I did was check to see if Judge Franciosa had entered a ruling on Angle's stay request. Nothing had come in.
The Morning Call is now reporting that Franciosa has denied the stay and barred him from participating on Council while simultaneously claiming that the official forfeiture is stayed.
Huh? Talk about ambiguous.
Franciosa also orders County Council, which never was a part of this action, to keep the seat open, effectively abrogating the very Home Rule Charter he was asked to interpret.
Just a few weeks ago, Northampton County DA John Morganelli was crying to County Council he's broke. He's so cash-strapped, he actually turns down 75% of extradition requests from other states. "We can't afford to go get them." With an expanding caseload and rising expert witness fees, he's had to put off empaneling a new grand jury and getting a new DA car.
Amazingly, this cash-strapped and over-worked DA nevertheless intends to pervert the public will, pursuing quo warranto proceedings against Northampton County Council member Ron Angle. Although Ron was elected November 3rd to the Bangor School Board by people who know he sits on County Council, Morganelli is going to push Angle off County Council, or so he thinks. His two-page letter to Angle is below.
Here's what he's really saying. "Payback's a bitch, Ron. You made me look bad, so now I'm going to remove you from office, something we could never do in an election." Now to make things look good and give himself some political cover, he's sent a similar letter to a Wilson Borough Council member elected to Wilson's School Board. But don't kid yourself. His target is Angle.
Morganelli bases his supposed opinion on provisions of a School Code enacted before there even was a Home Rule Charter, as well as a provision in the Home Rule Charter that the state supremes have declared unconstitutional. Let me repeat. Angle is Morganelli's real target. His threat is a nothing more than a thinly disguised, political hit job.
Morganelli's past practice
In 1999, when Ron Angle was first elected to County Council, he was a Bangor School Board member. Council Democrats sought Angle's ouster then, and Morganelli consented to a lawsuit filed by Council. But he refused to use the power of his office himself, choosing to stay away from a political question. Two years later, when it appeared that some members of the General Purpose Authority had been illegally appointed, Morganelli again consented to a quo warranto. But as before, he stayed out of the fight. Then in 2006, when Hellertown Borough Council President Tony Branco was appointed to County Council, Morganelli had no objection to this Democrat. In fact, the DA later made robo calls for him. Last year, when Bangor Mayor Joe Capozzolo was appointed to succeed the late Wayne Grube, Morganelli voiced no concerns.
Given his past practice, why this sudden change of heart? I believe there are three reasons, none of which has anything to do with the law.
1. Morganelli wants to prevent Angle's election as Council President.
If this matter ever goes to Court, Morganelli will lose. But Morganelli has decided to grandstand on this issue now, six weeks before Angle can even be sworn into office. At the same time he was sending this letter to Angle, he was forwarding copies to the press. He's trying his case there, where he has a better chance at success.
His goal is to influence the election of Council President. With a 7-2 Republican majority, Angle is in a very good position to be elected Council president. Morganelli, a hardened Democrat, has seen both Northampton County's bench and Council go Republican. Angle and County Executive Stoffa, whose interest is government and not partisan politics, are on the cusp of making some significant changes in the County, from a downsizing of Gracedale to a relocation of county offices to a treatment center that actually tries to prevent recidivism.
Morganelli, unlike Stoffa, is very much a political animal, and his protege is the very unpopular Lamont McClure. They are both losing their grip on political power, and need to weaken a Republican-controlled Council. Since an Angle Council Presidency is likely to succeed, they want to remove that possibility. Publicizing the DA's threat will cast doubts about Angle, making him less palatable to his fellow Republicans.
2. Nobody else will do it.
County Council, having already appointed two people who serve in other municipal governments to Council seats, has effectively taken themselves out of this game. They are in no position to raise the proscription in the Home Rule Charter, which then Solicitor Leonard Zito ruled unconstitutional. And they have no standing to raise the prohibition in the School Code.
How about Bangor School Board? On Monday night, they went into executive session over the Angle issue, and decided to waste no taxpayer dollars on what essentially amounts to a fool's errand.
That pretty much leaves Morganelli to play the fool. He's willing to take that risk because he has another reason for wanting to hurt Angle.
3. Payback's a Bitch
When political consultant Tom "Scissorhands" Severson was convicted by a jury for his bizarre and threatening behavior towards Ron Angle during a funeral mass, DA John Morganelli assumed the role of defense counsel, trying his best to downplay the reality that his friend and political consultant is now a criminal. Things got worse. Severson has been charged with deceptive campaign practices, and a statewide grand jury has extended its investigation into Morganelli puppet Lamont McClure. Morganelli has at best been asleep at the switch. At the worst, he may soon find himself under the magnifying glass.
He has one person to thank, more than any other. Ron Angle.
The Northampton County Bulldog has insisted for years that Severson is crooked. Morganelli studiously avoided these complaints until the Attorney General himself began to pay attention. The subsequent prosecution and investigation into deceptive Northampton County campaign practices is really an indictment of Morganelli, who unleashed Severson far too often.
Severson and Morganelli go back at least to 1991, when Severson ran John's campaign against then incumbent DA Don Corriere. That race, incidentally, turned nasty.
Morganelli has continued to use Severson and more importantly, has convinced others to use him as well, building up a little fiefdom in the process. These allies include former first assistant DA Paula Roscioli, who used Severson's services when she ran for judge, and won. After Scissorhands was charged in the funeral fracas, Morganelli used him in his own, unsuccessful, AG race. That support even continued after it became known that Severson was the subject of a statewide grand jury.
In his eighteen years as DA, I can't think of a single elections law prosecution. Severson had a green light to run wild, and did. Morganelli created a monster.
Morganelli refused to lift a finger when Severson began an anonymous sleaze campaign against local magisterial candidate Brian Monahan in Spring '08. He remained silent in July '08, when Severson started push polling against county councilman Ron Angle, even though that expense appears nowhere on any campaign finance report, even as an in-kind corporate contribution. When anonymous robo calls began in earnest against council candidates Angle and Peg Ferraro, Morganelli was MIA, even though campaign finance reports fail to reflect the amount of money being spent. In fact, he was working against Ferraro.
Now that Severson is being prosecuted and his political allies are under scrutiny, Morganelli has had a sudden change of heart about his personal involvement in quo warranto. You see, notwithstanding sleaze campaigns consisting of anonymous robo calls and vicious Severson-orchestrated mailers, Morganelli and company have failed to remove Angle at the polls. So now he'll attempt to replace democracy with litigation.
Why Morganelli Will Fail
No court is ever anxious to upset the will of the people. Despite the games that Severson and Morganelli play with elections, majority still rules. Judges will only negate an election result if the law is clear. And when it comes to a Home Rule Charter form of government, it's about as clear as the Delaware after three days of rain.
The Home Rule Charter proscription on which Morganelli relies has been found unconstitutional, for one thing. Morganelli himself notes that different lawyers reach different conclusions. The state supreme court has ruled that only the state legislature, and not any Home Rule Charter, can set forth the reasons for removing an elected official.
But how about that School Code prohibition? Well, that was adopted long before home rule government even existed. Counties were then appointing members to County School Boards. It applies to "county commissioners", who under the older form of government, have a mix of legislative and executive functions. They bear no similarity to the council members or commissioners in home rule governments.
When Morganelli's personal and political motivations are spelled out, and they will be, judges will take an even dimmer view of this waste of prosecutorial resources. Ironically, Morganelli himself has previously determined he is too biased to investigate or prosecute Severson. So how can he then prosecute Severson's victim, even in a civil matter?
Morganelli denies this is personal. Bullshit. I saw him the day Severson was found guilty. Instead of following the law, Morganelli is pursuing a political and personal vendetta, being urged on by McClure.
Five different people have forwarded me a royal proclamation from King Edwin's reelection campaign. It was widely circulated yesterday, and urges people to come to city council on Thursday night, and watch as he magically dispels the "misinformation that has been propagated concerning the proposed renovations of Cedar Creek park." He fails to mention that most of this misinformation has come from him.
Funny thing about that letter. It's identical to an undated Pawlowski proclamation, posted on the city's web page, presumably written by Pawlowski in his capacity as mayor. So he is using his city work product to promote his candidacy for mayor. This violates the Allentown Home Rule Charter proscription on "using city facilities or property for any political activity."
Now I know why city employee Erlinda Aguiar thought nothing of parking a city vehicle at a politcal rally thie Spring, and walking inside to hand out brochures.
Two weeks ago, Queen City Daily's relentless blogger, Jarret Renshaw, reported that a citizen had actually been prevented from speaking during Courtesy of the Floor at an Allentown City Council meeting. Lou Hersman, who happens to be a city council candidate, was gagged simply because he happens to be a city council candidate. Because this is such a blatant violation of both Allentown's Home Rule Charter and The Pennsylvania Sunshine Act, I went NuTz. OK. More NuTz.
Michael "Muzzles" Donovan, the sole Allentown City Council member within easy reach, took the brunt of my diatribes. But if truth be told, I was pretty rough on all of them, calling them a "group of bobbleheads who tells King Edwin what he wants to hear while denying citizens the basic right to speak."
I was wrong.
Last night, Allentown City Council reversed itself and let Lou speak. More importantly, I noticed they pretty much encourage public comment. They even patiently listened as some looney tune talked about the city owing him money and a collection of dead bodies near his house, after which he ran out of the meeting room.
I arrived a good half hour early, and the place was filling up, Thirty-one people were already in the meeting room, and that number doubled by meeting time. I was pleasantly surprised by the friendly atmosphere before the meeting. I was able to exchange pleasantries with Joe Hilliard, Dennis Pearson, Lou, Julian Stolz, Kim Beitler. Dick Nepon was there, too, all duded up in a very snazzy suit. It was a nice crowd.
I was also somewhat overwhelmed by the cordiality shown by city council members. In addition to calling them "a bunch of bobbleheads," I included my own unflattering depiction of each of them. They were pretty good about it. Tony Phillips came out into the crowd, talking to me and others. Julio Guridy actually introduced himself to me, and we were actually able to banter in French for a few minutes. He asked only that I spell his name right. Jeanette Eichenwald and her husband were very gracious, as always. I even had a brief opportunity to talk to Council Prez Mike D'Amore, who was kind enough to tell me in advance that he would allow me to speak.
Once the meeting got underway, Lou Hershman got up to speak. D'Amore, as he had done two weeks before, shut Lou down very firmly, telling him no one was going to use a city council meeting to wage a campaign. As promised, I objected, citing a specific provision in the Sunshine Act that allows anyone, even nonresidents, to note a violation. I also supplied council members with the pertinent provisions in the Home Rule Charter and Sunshine Act that clearly trump their gag rule.
Amazingly, they listened to me.
Guridy started things off by saying that "Mr. Hershman should have the right to speak, not to make a campaign speech, but if he has something legitimate to say." Then Jeanette Eichenwald simply blew me away. In a single sentence, she said what I've been trying to say for the past week. "Whenever there is a question, we should err on the side of upholding everyone's right to speak to this body." Tony Phillips sided with Guridy and Eichenald, noting "it is important we don't restrict people's right to speech, especially on old issues."
D'Amore and Donovan refused to budge. Schweyer listened.
Members of the public also advocated letting Lou speak. Kim Beitler: "Allow Mr. Hershman to speak." Dennis Pearson: "I believe in open government. As long as somebody behaves, he should be allowed to speak."
Finally, Jeanette Eichenwald proposed a new resolution that allows candidates to speak so long as they stick to old issues, as noted in council minutes, and refrain from campaigning. Dave Howells seconded her motion and frankly admitted "this issue has never come up."
Now Jeanette's motion is still a violation of both Home Rule Charter and Sunshine Act, neither of which allows these restrictions on speech. But her motive was obviously to couch a resolution in language that would assure enactment and allow ALL candidates, including Lou, to speak. When the smoke had cleared, her resolution passed 6 to 1, with Mike D'Amore the sole dissenter. Even Donovan, via speaker phone from Chicago, supported Jeanette.
"Mr. Hershman, you have three minutes," announced D'Amore. "It will take you three minutes to get up here," joked Howells.
When Lou finally got his three minutes at the podium, I'm pretty sure he was campaigning. But it was a victory for open government.
Incidentally, I don't know where the hell the Mayor was last night, but he belonged at that council meeting.
(Blogger's Note: I had to leave at 9:15 PM to write this report, but will have an update about the golf course restaurant later today or tomorrow.)
Update: So What Did Lou Say? Actually, he spoke about transparency in government. First, he mentioned that the 17 member committee investigating the city's financial woes should meet publicly, noting secret meetings are "unfair to taxpayers." Second, he complained about Donovan's supposed campaign contributions committee, which is being formed solely in reaction to a Morning Call news account that cast a public spotlight on Pawlowski's pay to play practicves. Hershman noted that Donovan and Controller Hoffman, both of whom will chair that committee, are "tainted" because they thmeselves are beneficiaries of King Edwin's largesse. He suggesterd that Jeanette Eichenwald belongs on that committee because, unlike the others, she relied on no Pawlowski contributions. It took Lou three minutes. He made his points and democracy was served. That's the way it's supposed to work.
Lou Hershman, an 8-year veteran of Allentown City Council and its former Controller for 24 years, was denied the opportunity to speak at Allentown's last City Council get together. Council rules permit the Council President to muzzle anyone who is a candidate for city office. Tonight, Low will try again. Will he succeed? Let's review.
Here's the Council Gag Rule:
"Candidate Participation: Persons running for office in a primary or general election will not be allowed to speak to "new issues" under Good and Welfare or Courtesy of the Floor. This prohibition will apply as soon as the candidate's nominating petition is filed and until after the General Election in that same year (unless a candidate is unsuccessful In the primary). The Presiding Officer will enforce this rule.
"1. Good and Welfare prohibition applies to members of City Council seeking election.
"2. Courtesy of the Floor prohibition applies to those, not on Council, seeking election. (26179 12/6/89)"
Sounds pretty good, huh? But this Council Incumbent Protection Rule is trumped by Allentown's Home Rule Charter, which is the equivalent of its own constitution. In very clear language, a citizen's right to be heard is clearly established.
"The Council must provide reasonable opportunity for interested citizens and taxpayers to address the Council on matters of general or special concern. Citizens’ right to be heard shall be the first order of business at all public meetings and before a vote on any Council business. The public shall be granted the opportunity to comment at Council meetings without time limitations, except when the Council President, imposes a reasonable time limitation deemed necessary. Council members, by a vote of a majority plus one (1), may override the Council president’s time limitation."
In addition to the plain language of the Home Rule Charter, Allentown's gag rule is trumped by The Pennsylvania Sunshine Act, specifically provides that residents and taxpayers must be given a reasonable opportunity "to comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action."
Nothing in either the Charter or Sunshine Act allows a Council to muzzle someone simply because he is running for office. The Sunshine Act also has a specific provision for publicly noting violations. "Any person has the right to raise an objection at any time to a perceived violation of this chapter at any meeting ... ." I'll be at the meeting and intend to object if Council gags Lou again.
The Sunshine Act also permits the filing of a declaratory judgment action in the event of a violation. Government by litigation is infinitely preferable to government in the dark. Will City Council let Lou speak? Why are they afraid?
Allentown's incumbent protection rule, also known as Rule 7F of the City Council Rules, is as follows:
"Candidate Participation: Persons running for office in a primary or general election will not be allowed to speak to "new issues" under Good and Welfare or Courtesy of the Floor. This prohibition will apply as soon as the candidate's nominating petition is filed and until after the General Election in that same year (unless a candidate is unsuccessful In the primary). The Presiding Officer will enforce this rule.
"1. Good and Welfare prohibition applies to members of City Council seeking election.
"2. Courtesy of the Floor prohibition applies to those, not on Council, seeking election. (26179 12/6/89)"
This is where Carrie, aka Volvo Driving Soccer Mom, aka Pissed Off Naked Blogger, enters the fray. She's previously suggested that mayoral candidate Tony Phillips, an African American, should "have someone school him on elocution." Does Tony have a lisp? No. Stutter? No. But he does sound a little ... um ... black. Carrie denies her advice has anything to do with that.
At Queen City Daily, Carrie continues her line of personal attacks, but this time they're directed at me. First, no one should listen to a word I say because "[y]ou were disbarred. For you to give legal opinions on anything is a joke." Second, I'm doing this to get at Mayor Edwin because he "hurt your feelings."
It's certainly true I lost my ticket way back in 1985, but not for stupidity. To be perfectly honest, only a moron could conclude that the incumbent protection rule has any validity. It would never survive a challenge based either on the Home Rule Charter or Sunshine Act.
As far as bashing Hizzoner is concerned, King Edwin may even agree with me. Lord knows, he gets along with no one on City Council. My argument actually benefits all candidates for city office, from Lou Hershman to Mike Schlossberg to King Edwin himself. For all I know, he's designing a three minute power point presentation right now.
How does City Solicitor Frances Fruwirth feel about all this? She supposedly gave Prez D'Amore the green light, but was undoubtedly unaware at the time how this rule contradicts the plain language of both Home Rule Charter and state Sunshine Act. I tried speaking to her late yesterday but was told she is "unavailable." She may remain that way. If she is able to speak with me, I'll tell you what she has to say.
