Lawsuit Targets

Municipalities are frequent targets for lawsuits. A common theme is the disgruntled employee who sues after being terminated or demoted in some fashion. It is imperative that a municipality comply with any employment contract, civil service provision, or collective bargaining agreement. Also, there may be statutory rights involved for the employee. I recently came across an article where the former Dauphin Borough police chief was suing the Borough in federal court. The federal courts are the favorite venue for most of these types of actions. As always, you should consult with your solicitor or an employment/labor lawyer before taking any action with respect to terminating an employee.

Agony of Defeat

Well, I've spent most of this week preparing for a surcharge trial. I was appointed to represent the elected Township Auditors against the Township Supervisors. In the fall of 2004, the Township Supervisors decided to purchase a new front wheel loader and ordered a Volvo. There were problems with delivery and in April of 2005 the Supervisors cancelled the Volvo and purchased a Catepillar model loader. The problem was that the Catepillar was not publicly bid and cost more than the Volvo.

Our evidence was that the Volvo was still available in April of 2005 at the same price originally quoted to the Township in the fall of 2004. Our position was that the Catepillar was not legally purchased and therefore, the higher price paid led to the surcharge.

After a half day of trial, the Court ruled against the Auditors and in favor of the Supervisors. The Court stated that in order for the Auditors to prevail, they must show that the Catepillar was not worth what the Township paid for it, not that they paid more for it than the Volvo.

I don't know if my clients will appeal the decision or not. The Township has spent close to $10,000.00 in attorney's fees between their solicitor and myself. Disappointed to say the least.

New Open Records Bill Signed by Govenor Rendell

On February 14, Govenor Rendell signed Senate Bill1 which the Pennsylvania Senate had unanimously approved. The law makes some major revisions to the Pennsylvania Right-to-Know Law. Parts of the new law are immediately effective, such as the change in definitions. Included in these are new definitions for what is a "record." Other parts of the law will go into effect July 1, 2008 and the rest on January 1, 2009.

Some of the other highlights of the new law are:

- reverses the presumption and now puts the burden of proof on the government agency denying the access request

- establishes the Office of Open Records, housed in the Department of Community and Economic Development; this office will establish standard fees for photocopies and standard records request forms

-provides a list of 29 exceptions for executive agencies and local agencies, including criminal investigations, Social Security numbers, personal financial information, and individual medical records

-increases the fines for officials who violate the law and allows the awarding of legal fees for bad faith actions by government officials

Wind Farm Proposal Raises Land Use Questions

I had heard some rumblings about land being developed in the area for a proposed wind farm. A wind farm is a group of wind turbines clustered to generate power. Currently, there is a proposed wind farm being challenged on land use grounds in Tioga County, PA. An artcile in the Williamsport Sun Gazette can be found at www.sungazette.com.

Borough Can Eliminate Compensation for Council

In a recent case decided by the Commonwealth Court, a borough ordinance enacted pursuant to Section 1001 of the Borough Code was upheld on Constitutional grounds. In Buckwalter v. Borough of Phoenixville No.1361 CD of 2007 (January 8, 2008) the ordinance was found to be valid and did not violate Article III, Section 27 of the Pennsylvania Constitution.

DEP Faces Legal Challenge

The Pennsylvania Department of Environmental Protection is facing a possible legal challenge from a large number of central Pennsylvania muncipalities. The proposed lawsuit stems from the Department's Chesapeake Bay clean-up strategy. The Department has mandated 183 sewage treatment plants to spend as much as $1 billion to reduce nitrogen and phosphorus discharges. Currently, 40 municipalities have voted to join the legal action.
A story in The Patriot News on the action can be found at www.pennlive.com/news/patriotnews

Cemetary Woes for Township

I found some archane provisions in the Second Class Township Code dealing with cemetaries. The Code directs that if a cemetary or burial ground is abandoned or is being neglected the township board of supervisors may give notice to the owner to clean up the weeds, debris, etc and after thirty days, the township may do the work at township expense. The statute goes on to state that the cemetary shall remain open to the public under the regulation and control of the board of supervisors.

Unfortunately, there is no other provisions for guidance to a township faced with an abandonded cemetary. One of my municipal clients has a defunct cemetary association. The supervisors are reluctant to sell any burial plots or otherwise be involved with the cemetary for fear of liability concerns. They are mowing, weeding and providing that sort of upkeep. They have asked me to give them input on how to hadle this problem.

I will update this post with my progress.