A home rule charter county cannot seek to abolish elected offices and move them to appointed positions without first electing a government study commission to examine the proposed changes, the state Supreme Court has ruled.
The court unanimously ruled in Pilchesky v. Lackawanna County that the proposed changes constituted a change in the form of government and not simply an amendment to the home rule charter, and therefore the commissioners needed to first elect a government study commission. The decision reverses a three-judge trial court panel and the Commonwealth Court, which found that the ordinances could be put to a vote without first performing a study.
“Upon an application of well-settled principles of statutory construction, we find that in light of the plain language of the Home Rule Law and the considerations [plaintiff Joseph] Pilchesky raises, the amendment proposed by the commissioners constitutes a change in the form of government that may be accomplished only by following the procedure outlined in Subchapter B of the Home Rule Law, which requires the election of a government study commission,” Justice Correale F. Stevens said in the majority opinion.
According to Stevens, the Lackawanna County Board of Commissioners sought to put a referendum question on the May 2013 municipal primary election ballot, proposing to abolish the elected offices of sheriff, clerk of records, recorder of deeds and register of wills. If passed, the sheriff would become an appointed position and would oversee the abolished positions, Stevens said.
Stevens noted that Lackawanna County is a third-class county, and, in 1977, it enacted the home rule charter, which identified the four positions as elected county officers.
Pilchesky filed a pro se petition, requesting that the court either strike the ballot question or separate the question into four questions—one for each of the officers the commissioners sought to abolish.
Pilchesky also argued that the question proposed a change in the form of government rather than an amendment to the charter, and therefore the commission first needed to elect a study commission, as outlined in 53 Pa.C.S. Section 2911.
A three-judge trial court panel denied the challenge but granted Pilchesky’s request to have the question broken into four. The panel also found that while the question would have allowed for a change in the form of government, it did not require the election of a government study commission.
The court reasoned, according to Stevens, that 53 Pa.C.S. Section 2911, which is contained in Subchapter B of the Home Rule Law, allows for the election of study commissions to review existing forms of municipal government, and that, to the contrary, Subchapter C of the Home Rule Law outlines amendments to an existing home rule charter and allows amendments through a referendum question. Since Subchapter C does not refer to a government study commission, a home rule charter municipality can change the existing form of government without first electing a government study commission, the panel found.
The Commonwealth Court agreed, finding that while the two procedures are not necessarily mutually exclusive, “when the legislature intended exclusivity, it made such an intention clear,” according to Stevens.
On appeal to the Supreme Court, the commissioners argued that the case was moot because the four ballot questions were rejected during the May primary; however, Stevens said that the issue fell under the exceptions for mootness.
“When this court granted allocatur herein, the possibility that the issue would have become moot prior to the time it was ripe for our review was evident; however, we find the ballot issue Pilchesky raises concerning the interplay among provisions in the Home Rule Law is an important one that is capable of repetition yet likely to evade review,” Stevens said.
According to Stevens, Subchapter B governs the adoption of optional forms of government, and Subchapter C governs the amendment of an existing home rule charter. The adoption of a new form of government, he said, is subject to the procedures outlined in Subchapter B.
“The commissioners did not seek to change the method of electing a municipal governing body,” Stevens said. “They sought to make fundamental alterations in the form of government by transforming the office of sheriff from elected to an appointed position and abolishing three row offices which heretofore had been elected.”
Stevens further agreed with Pilchesky’s assertion that electing a commission, which would be composed of local residents, to perform a study is “vital to due process and accountability.”
“The commissioners sought to alter provisions of the charter which provided for the election of these enumerated municipal officers,” Steven said. “As Pilchesky argues, under the plain language of Section 2930, the modification of the charter in this respect equates to the adoption of ‘a complete and separate form of government.’”
According to Pilchesky, who argued the case pro se up through the Supreme Court level, the decision will provide guidance for counties seeking to change, eliminate or alter row offices.
“There was scant legal instruction that we were following, and the court made a point to say that clearly there needed to be instruction for a county going forward,” Pilchesky said. With the ruling, counties “won’t be able to get away with saying they’re just changing the charter when they’re actually changing the government.”
Max Mitchell can be contacted at 215-557-2354 or email@example.com. Follow him on Twitter @MMitchellTLI.
(Copies of the 24-page opinion in Pilchesky v. Lackawanna County, PICS No. 14-0517, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •