Opinion
No. 29 C.D. 2012
10-23-2012
Reading City Council, Appellant v. City of Reading Charter Board
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Reading City Council (City Council) appeals from the Berks County Court of Common Pleas' (trial court) December 9, 2011 order denying its appeal and sustaining the Reading City (City) Charter Board's (Charter Board) final opinion and order. The issues for this Court's review are: (1) whether the trial court erred by concluding that the City Clerk merely has ministerial duties; (2) whether the trial court erred by sustaining the Charter Board's final order; (3) whether the Charter Board abused its discretion by ignoring the investigative officer's findings report; and, (4) whether the trial court erred by not declaring Home Rule Charter Article XI, Sections 1102 through 1109 illegal. We affirm.
The City is a third class city organized and operating under a Home Rule Charter (Charter). Section 1101(e) of the City's Charter allows citizens to participate in the City's government by initiative (proposing ordinances) and referendum (requesting reconsideration of adopted ordinances), "as provided in this Charter or as otherwise provided by law." Reproduced Record (R.R.) at 181a. The Charter's initiative and referendum procedure is set forth in Article XI, Sections 1102 through 1109 of the Charter. Section 1103(a) of the Charter authorizes any five qualified voters, as a petitioners' committee, to commence initiative or referendum proceedings by filing an affidavit with the City Clerk stating their names and addresses, fully setting out the proposed initiative or citing the ordinance to be reconsidered, and accepting responsibility for circulating the petition. R.R. at 182a. Once the affidavit is filed, the City Clerk shall issue blank petition forms for the committee's use. R.R. at 182a.
The Charter was approved by City voters in November 1993. Original Record (O.R.) Item 9 at 1-13; see also 306 Pa. Code §§ 11.1-101—11.13-1313.
Pursuant to Charter Section 1104(b), the petition must contain the full text of the ordinance proposed or being reconsidered, and a circulator's affidavit. R.R. at 182a. In accordance with Charter Sections 1104(a) and (e), the petition must be signed by 2,000 qualified City voters, and must include the voters' addresses and date of signing. R.R. at 182a. Section 1104(b) of the Charter provides, in pertinent part:
(b) Form and Content. All papers of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. Each signature shall be executed in ink or indelible pencil and shall include the address of the person signing and the date signed. Petitions shall contain or have attached thereto throughout their circulation the full text of the ordinance proposed or sought to be reconsidered.R.R. at 182a-183a (bold type-face omitted). Sections 1104(d) and (e) of the Charter state the deadlines for petition circulation and filing. Charter Section 1105(a) declares that, within 20 days after the petition is filed, "the City Clerk shall complete a certification as to its sufficiency." R.R. at 183a. Charter Section 1107(a) provides that if the petition is deemed sufficient, City Council may review it at the committee's request. R.R. at 184a.
(c) Affidavit of Circulator. Each paper of a petition shall have attached to it when filing a notarized affidavit executed by the circulator thereof . . . .
Section 602 of the Charter states that "City Council shall have the power by resolution to adopt uniform administrative procedures, regulations, and forms to be followed by all elected officials, departments, offices, and agencies." O.R. Item 8 at 20. Section 1204 of the Charter specifies:
The Charter shall be amended by: (a) [t]he citizens of the City through the initiative process provided by this Charter; (b) City Council through referendum; or (c) [a] Charter Review Commission by amendments being placed on the ballot . . . . (d) [p]roposed amendments by a Charter Review Commission being place on the ballot . . . .R.R. at 188a-189a.
In October 2006, the City Clerk requested an advisory opinion from the Charter Board as follows: "May the City, by ordinance, add local regulations to the Administrative Code for initiative and referendum petitions?" On November 22, 2006, the Charter Board issued Advisory Opinion No. 3, wherein, it stated that, as a home rule municipality, the City is constrained by laws of uniform and statewide application. Because the Pennsylvania Election Code (Election Code), together with the Charter, completely govern the initiative and referendum process leaving no blanks to be filled, ordinances impacting or altering their substance would violate them. R.R. at 30a-36a, 233a-239a.
The City's ordinances are codified in the Administrative Code. Admin. Code § 102; O.R. Item 9 at 1-13.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
In February 2007, the City Clerk submitted to the Charter Board an ordinance proposing to add Part 11 to the Administrative Code - Initiative and Referendum, and requested an advisory opinion as to "whether 1) the procedures set forth in the proposed ordinance may be added to the Administrative Code and 2) if any additional changes in the language of the Administrative Code are needed." On March 6, 2007, the Charter Board issued Advisory Opinion No. 5, in which the Charter Board expressed concern "that the [p]roposed [o]rdinance contains provisions which exceed ministerial clarifications and, in fact, may be substantively or procedurally at odds with the Charter and the Election Code." R.R. at 23a, 241a. The Charter Board specifically expressed that the proposed ordinance authorized the City Clerk to make more than face value petition examinations, when his/her "role is ministerial in nature." R.R. at 25a, 243a.
The Charter Board recommended changes to the proposed ordinance, such as, including the definition of "qualified voter," and adding language that petition forms may not be altered, that qualified voters must sign in ink or indelible pencil, that the City Clerk cannot offer amendment or resubmission of an insufficient petition, and that sufficiency shall be based on facial examination. R.R. at 10a-17a, 22a-29a, 240a-255a.
In spite of Advisory Opinion No. 5, on May 14, 2007, City Council passed Bill No. 24-2007 (the Ordinance), which added a new Part 11 to the City's codified ordinances (Administrative Code), spelling out an initiative and referendum process, "to assist Reading voters with their rights to participation provided by the [Charter]." R.R. at 213a. Relevant to this appeal are Ordinance Sections 1-1104, 1-1113 and 1-1114. Section 1-1104 of the Ordinance (Admin. Code § 1-1105) states:
In its final opinion and order, the Charter Board described the proposed ordinance it reviewed for Advisory Opinion No. 5 as "bear[ing] significant resemblance to the Ordinance." R.R. at 52a, 104a. It appears that many of the suggestions made in Advisory Opinion No. 5 were incorporated in the Ordinance.
The Charter Board's final opinion and order referred to sections of the Ordinance as adopted, and parenthetically to sections of the Administrative Code, which differ slightly. For ease of reference, both sections are likewise cited herein.
The form and content of each petition pack shall be prepared as follows:
1. Each petition shall be uniform in size and style on 8½ x 11 paper, marked sequentially and/or contain a serial number.R.R. at 214a-215a, 225a-226a.
2. Each petition pack shall contain one petition.
3. Have an affidavit of Circulator . . . .
4. Contain complete text of the initiative ordinance being considered . . . .
5. Contain no more than 20 signature lines for the printed name, address, . . . signature of each person signing the petition, and the date signed.
6. Contain a Warning Statement advising that it is unlawful for anyone to sign any initiative or referendum petition with any name other than his/her own, or to knowingly sign his/her name more than once for the same proposal, or to sign such petition when he/she is not a legal voter in the City . . . .
7. No corrections, additions or alterations shall be made to the form of all petitions issued by the City Clerk to the Petitioner's Committee.
Any petition not following the form and content set out above shall be declared invalid.
Section 1-1113 of the Ordinance (Admin. Code § 1-1114) requires that petition packs be stacked
beginning with the number 1 and continue sequentially until all sheets . . . issued are accounted for. . . . The petitioner[s'] committee must also include a letter stating how many signatures they purport to have. The City Clerk shall advise the petitioner[s'] committee of their ability to obtain the necessary number of signatures or make other corrections. . . .R.R. at 217a.
Section 1-1114.A of the Ordinance (Admin. Code § 1-1115.1) provides: "Upon filing of a petition for initiative or referendum with the City Clerk, the City Clerk shall make an initial face value determination of sufficiency and report the results thereof to the City Council within two (2) days . . . ." R.R. at 228a. Then, Section 1-1114.B of the Ordinance (Admin. Code § 1-1115.2) states:
After completing the initial face value determination, the City Clerk may complete a verification process to find whether signatures of individuals on the petitions are insufficient in the following categories:R.R. at 218a, 228a-229a.
1. Address shown by signer is not located within the [C]ity limits . . . .
2. Any signature appearing on the petition more than once, in which event all signatures of said individual shall be deleted except one.
3. More than one individual signature is on a signature line, in which event the line shall count as one.
4. Signature lines containing incomplete information or information which was not completed by the elector or a person qualified to assist the elector shall not be counted.
5. Signature and information that does not match the Berks County Voter Registration Records.
6. Signatures of individuals who are not registered electors in the City.
7. Each petition pack shall only contain one petition; multiple petitions may not be attached to a single ordinance and circulator[']s affidavit.
On October 27, 2010, Steven Keiser filed a complaint with the Charter Board alleging that City Council violated Article XI and Section 1204 of the Charter by amending the Charter by ordinance rather than referendum. Keiser averred that City Council passed the Ordinance despite the November 22, 2006 and March 6, 2007 Charter Board advisory opinions advising against it, and Keiser claimed that it represents retaliation by the City, which was unsuccessful in preventing passage of two previous initiatives and referendums. Keiser alleged that the Ordinance grants authority to the City Clerk to make more than facial determinations of sufficiency, and such new authority represents a conflict of interest, because he/she serves at the pleasure of City Council, but would be validating citizens' disagreements with City Council.
Keiser also alleged that the Ordinance makes participation too restrictive by increasing the number of signatures required, and by requiring ward and precinct information. Those objections are not at issue in this appeal.
On October 29, 2010, the Charter Board informed Keiser and City Council that the complaint warranted a preliminary investigation. On January 26, 2011, the Charter Board notified both parties that the preliminary investigation required a full investigation. On February 24, 2011, Charter Board investigative officer, David Brennan, issued a Findings Report (Investigation No. 31) in which he concluded that Ordinance Section 1-1114.B (Admin. Code § 1-1115.2) is not discretionary, and does not alter the Charter, but merely describes how a sufficiency determination set forth in the Charter is to be conducted. Brennan also concluded that allowing the City to complete a verification process to determine petition sufficiency does not create a conflict of interest. The Charter Board reviewed the Findings Report, and decided the following issues were relevant: (1) whether City Council impermissibly attempted to amend the Charter, and (2) whether the City Clerk's role affords increased discretion, and avoids an impermissible conflict of interest. City Council did not request a hearing on these issues.
On April 25, 2011, the Charter Board issued a final opinion and order, in which it held that the Ordinance amended the Charter in violation of Charter Section 1204, and that Ordinance Sections 1-1104, 1-1113 and 1-1114 impermissibly authorize the City Clerk to use discretion in determining the sufficiency of initiative and referendum petitions which, rather than providing liberal and unrestricted access, creates a barrier to citizen participation in City government, in violation of the Charter. Accordingly, the Charter Board declared the Ordinance null, void and of no effect, and restored Part 11 of the Charter as though the Ordinance had not been adopted. R.R. at 65a- 67a, 117a-119a.
On May 25, 2011, City Council appealed the Charter Board's decision to the trial court. On December 9, 2011, based upon argument and the parties' briefs, the trial court denied City Council's appeal and sustained the Charter Board's April 25, 2011 final opinion and order. On January 6, 2012, City Council appealed to this Court. The trial court issued its Pa.R.A.P. 1925 opinion on February 17, 2012.
"Where the local agency developed a full and complete record and the trial court took no additional evidence, our scope of review is limited to whether the local agency violated constitutional rights or committed an error of law or whether necessary findings of fact are supported by substantial evidence." Mukerji v. City of Reading Charter Review Bd., 941 A.2d 102, 104 n.3 (Pa. Cmwlth. 2008).
City Council first argues that the trial court erred by concluding that the City Clerk merely has ministerial duties. We disagree. This Court has held that:
[a] ministerial act is defined as one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.Council of the City of Phila. v. Street, 856 A.2d 893, 896 (Pa. Cmwlth. 2004) (quotation marks omitted). Although neither the Charter nor the Administrative Code expressly limits the City Clerk to ministerial duties, Charter Article II, Section 225 provides, in pertinent part:
City Council shall appoint an officer of the City who shall have the title of City Clerk. The City Clerk shall give notice of [City] Council meetings to its members and the public, take the minutes of all City Council meetings, keep the journal of its proceedings, shall have the power of a notary public, shall serve as secretary to [City] Council and perform such other duties as are assigned by the [A]dministrative [C]ode, [City] Council, or state law. . . . The City Clerk shall serve at the pleasure of [City] Council.R.R. at 190a (emphasis added). Section 1-161 of the Administrative Code states:
The duties of [the City Clerk] will include but are not limited to the following:O.R. Item 9 at 1-51. The Charter and the Administrative Code clearly confine the City Clerk's duties to those directed by City Council and limit the City Clerk as an extension of City Council.
A. Serves as Director of the legislative branch.
B. Performs general oversight and coordination of legislative action of City Council.
C. Makes recommendations to City Council on policy, regulations, practices and issues concerning the City . . . .
D. Serves as liaison between City Council and other officials.
E. Acts as representative of [City] Council at meetings and events when so directed by City Council.
F. Explains City Council procedures and answers questions on City Council business from the public, press and administration.
G. Performs various public relation activities for City Council and the City . . . to promote City issues and initiatives.
. . . .
Specifically relative to the initiative and referendum process, Charter Section 1103 requires the City Clerk to issue blank petitions to Petitioners' Committees upon the filing of an appropriate affidavit. Section 1104 of the Charter specifies petition form and content, the required number of qualified voter signatures, and the deadlines for circulation and filing. Section 1105(a) of the Charter states that once a petition is filed and the City Clerk makes sure Charter Section 1104's requirements have been met, he/she "shall complete a certification as to its sufficiency." R.R. at 183a. City Council, however, makes the final determination as to petition sufficiency. See Charter Section 1105(a). Thus, although the City Clerk clearly plays a role in the initiative and referendum process, it is purely at the direction of the City Council, without the City Clerk's exercise of judgment and discretion. Therefore, the Charter Board's conclusion that the City Clerk has merely ministerial duties is supported by this record. Accordingly, the trial court did not err by concluding that the City Clerk merely has ministerial duties.
City Council next argues that the trial court erred by sustaining the Charter Board's final order. We disagree. Article 9, Section 2 of the Pennsylvania Constitution states, in pertinent part: "A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. art. 9, § 2. Article 1, Section 101 of the Charter states: "The City shall be governed pursuant to this Charter." R.R. at 169a. Section 102 of the Charter provides, in pertinent part: "The City shall have the power to exercise any power or to perform any function not denied . . . by this Charter." R.R. at 169a. Section 103 of the Charter states: "All powers of the City shall be exercised as provided by this Charter, or if the Charter makes no provision, as provided by ordinances or resolutions of the City Council." R.R. at 169a. Section 105(a) of the Charter states that, "[t]he powers of the City under this Charter shall be construed liberally in favor of the City, and the specific mention of particular powers in the Charter shall not be construed as limiting in any way the general power granted in this Article." R.R. at 169a. Article 2, Section 208 of the Charter states:
All powers of the City not otherwise provided for in this Charter shall be exercised in a manner to be determined by [City] Council. [City] Council shall provide for the exercise and performance of any such other powers and duties in a manner consistent with the terms of this Charter.O.R. Item 8 at 6.
According to Article II, Section 215 of the Charter, "[City] Council may legislate by passage of an ordinance." O.R Item 8 at 8. Article VI, Section 601 of the Charter states:
As a part of the codified ordinances, City Council shall enact and from time to time may amend an Administrative Code which shall set forth in detail the organization and administrative structure and procedures of the City, including:O.R. Item 8 at 20. Amendment I, Section 1.a) of the Charter clearly states:
(1) a specific enumeration of departments, offices, and agencies and the division of powers and responsibilities among them;
(2) the internal procedures for the operation of the departments, offices, and agencies; and
(3) any other rules, regulations, and procedures reasonably appropriate for efficient administration.
Governing Law of the City. This Charter is the governing law of the [City]. No action or inaction by City Council, the Administration, or any other governing body created by this Charter shall be taken contrary to it, whether individually or collectively, by ordinance, resolution, practice, executive order or decision, or by any other means.R.R. at 166a (bold type-face omitted). Finally, Section 1204(b) of the Charter expressly limits City Council's ability to amend the Charter only by referendum. R.R. at 188a.
The wording of the Charter, and acts pursuant to it, shall in all cases be strictly construed so as to effectuate its clear intent.
Charter Section 1204 complies with Section 2942 of the Home Rule Charter and Optional Plans Law (Home Rule Charter Law), 53 Pa.C.S. § 2942, which provides that "[a] referendum on the question of amendment of a home rule charter . . . may be initiated by petition of the electors or . . . by an ordinance of the governing body."
Although City Council may not amend the Charter by ordinance, it may amend the Administrative Code by ordinance, which it did here. Moreover, the Charter expressly allows City Council to amend the Administrative Code relative to the City's procedures, as long as the procedures authorized are not otherwise provided for in the Charter, and only to the extent that they are not contrary to the Charter. Finally, Section 1-111 of the Administrative Code provides: "In the event there is any inconsistency or conflict in the Charter and the provisions of the Administrative Code[,] the provisions of the Charter shall take precedence." O.R. Item 9 at 1-15. Thus, modification of the City Clerk's role in the initiative and referendum process is permissible by ordinance, but only to the extent that modification is not contrary to the Charter's initiative and referendum provisions.
Section 1-1104 of the Ordinance (Admin. Code §§ 1-1104, 1-1105) adds form and content requirements not specified in the Charter, and mandates that those petitions failing to meet the new requirements "shall be declared invalid." R.R. at 226a. Because Section 1-1104 of the Ordinance adds specific requirements not contemplated by the Charter, and makes non-compliant petitions invalid, it is an impermissible amendment of the Charter.
Section 1-1113 of the Ordinance (Admin. Code § 1-1114) added requirements for submitted petitions necessitating that they be stacked a certain way and, that they be accompanied by a letter stating the number of signatures purportedly therein. Read together with Ordinance Section 1-1104, non-conforming petitions may be declared invalid. Because Section 1-1113 of the Ordinance adds requirements not contemplated by the Charter, it is an impermissible amendment of the Charter.
Section 1-1114.B of the Ordinance also added requirements to the City Clerk's determination of sufficiency not previously set forth in the Charter. Sections 1-1114.B.4, and 5, and 6 of the Ordinance (Admin. Code § 1-1115.2.A-G) require the City Clerk to go beyond initial face-value determinations contemplated by the Charter. Section 1-1114.B specifically states that "[a]fter the initial face value determination," the City Clerk "may" further verify whether the signatures are insufficient because the information was not completed by the elector or qualified assistant (Ordinance Section 1-1114.B.4), the signatures and information do not match the Berks County Voter Registration Records (Ordinance Section 1-1114.B.5), or the signers are not City electors (Ordinance Section 1-1114.B.6). These provisions require the City Clerk to make findings of fact, and use of the word "may" makes the verification process optional. Where Charter Section 1105(a) does not authorize the City Clerk to conduct more than facial examinations for sufficiency, these provisions clearly expand the Charter. Because Ordinance Section 1-1114.B adds requirements not contemplated by the Charter, it is an impermissible amendment of the Charter.
We note that before City Council enacted the Ordinance, it was advised by the Charter Board that these requirements would be improper. See Advisory Op. No. 5; R.R. at 24a-25a, 242a-243a.
City Council next argues that the Charter Board abused its discretion by ignoring the investigative officer's findings report. We disagree. Amendment I, Section 2.b.) of the Charter (relating to enforcement) provides:
The Charter Board shall hear and decide all cases alleging violations of the Charter or Administrative Code . . . . Insofar as permitted by state law[,] the [Charter] Board shall
issue binding opinions, impose penalties and administrative fines, refer cases for prosecutions, and conduct investigations on its own initiative and on referral or complaint.R.R. at 166a. Section III.A. of the City's Charter Board Ordinance provides, in pertinent part:
The [Charter] Board shall have the following powers and duties with respect to Charter enforcement. It shall:R.R. at 196a. Section II.A.7.a) of the Charter Board Ordinance provides:
1. Hear and decide all complaints alleging violations of the Charter and Administrative Code . . . .
. . . .
3. Initiate preliminary investigati[ons] on its own motion, through the Investigative Officer.
4. Appoint an Investigative Officer to conduct investigations and to issue Findings Reports where appropriate.
. . . .
The [Charter] Board shall appoint an investigative officer ('Investigative Officer') who shall serve at the pleasure of the [Charter] Board. The Investigative Officer is charged with determining jurisdiction, conducting preliminary and full investigations, issuing written Findings Reports, prosecuting complaints before evidentiary hearings, and performing such other duties as set forth herein. . . .R.R. at 194a. Pursuant to Section V.A.6.a) of the Charter Board Ordinance, "The Findings Report shall set forth the pertinent findings of fact as determined by the [Investigative] Officer. The [Investigative] Officer shall deliver the findings of fact to the complainant and the subject of the investigation." Section V.A.8.b) of the Charter Board Ordinance states:
Where no Evidentiary Hearing is requested.
If the subject of the complaint does not request an evidentiary hearing, the [Charter] Board shall decide by a majority vote of those members present whether the Findings Report supports a determination that the subject of the complaint violated the Charter or Administrative Code.
R.R. at 203a.
City Council had 20 days from the issuance of the findings report to request an evidentiary hearing, but it did not.
City Council had 20 days from the issuance of the findings report to request an evidentiary hearing, but it did not.
The Charter clearly grants the Charter Board the exclusive jurisdiction to hear and determine cases alleging violations of the Charter or Administrative Code. The investigative officer is limited to conducting investigations at the Charter Board's request, and issuing findings of fact. Where, as here, City Council did not request an evidentiary hearing, the Charter Board's role was to determine whether the findings of fact in the findings report supported a determination that City Council violated the Charter. Because the investigator is not expressly authorized to make conclusions of law, and the Charter Board was not required to adopt them, the Charter Board did not abuse its discretion by ignoring the conclusions reached in the investigative officer's findings report.
City Council finally argues that the trial court erred by not declaring Home Rule Charter Article XI, Sections 1102 through 1109 unlawful on the basis that, because initiative and referendum are provided for in Section 1060 of the Third Class City Code and Sections 201.1, 977 and 1201 of the Election Code, the Charter's provisions violate Section 2962(a)(5) of the Home Rule Charter Law, 53 Pa.C.S. § 2962(a)(5).
Act of June 23, 1931 P.L. 932, as amended, 53 P.S. § 36060.
We first address the Charter Board and the trial court arguments that, because this issue was not expressly raised before the Charter Board, it has been waived. This case was initiated by Keiser's complaint. That complaint did not raise the legality of Charter Sections 1102 through 1109. Thus, neither the investigator's findings report, nor the Charter Board's final opinion and order address it. City Council did not request a hearing. The first time City Council raised this issue was in its brief to the trial court. See R.R. at 121a-126a. However, Section 753(a) of the Local Agency Law, 2 Pa.C.S. § 753(a), provides:
A party who proceeded before a local agency under the terms of a . . . home rule charter, or local ordinance . . . shall not be precluded from questioning the validity of the . . . home rule charter or local ordinance . . . in the appeal, but if a full and complete record of the proceedings before the agency was made[,] such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown.(Emphasis added). Thus, Section 753(a) of the Local Agency Law permits City Council to raise the legality of Charter Sections 1102 through 1109 for the first time on appeal to this Court. Consequently, that issue has not been waived.
As to the merits of City Council's issue, we disagree that because initiative and referendum are provided for in Sections 201.1, 977 and 1201 of the Election Code, and Section 1060 of the Third Class City Code, the Charter's provisions violate Section 2962(a)(5) of the Home Rule Charter Law.
Consistent with Article 9, Section 2 of the Pennsylvania Constitution, supra, the General Assembly enacted the Home Rule Charter Law. Section 2961 of the Home Rule Charter Law, 53 Pa.C.S. § 2961, provides:
A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or
general terms, shall be liberally construed in favor of the municipality."The essential principle underlying home rule is the transfer of authority to control certain municipal affairs from the state to the local level." Hartman v. City of Allentown, 880 A.2d 737, 742 (Pa. Cmwlth. 2005). This Court has held:
In general, the adoption of a home rule charter acts to remove a municipality from the operation of the code provisions enumerating the powers of that particular class of municipality. Thus, in the absence of explicit constraint or collateral effect on another municipality, there will be no conflict between the home rule municipality's actions and the former code provisions, since the latter no longer apply.Wecht v. Roddey, 815 A.2d 1146, 1152 (Pa. Cmwlth. 2002) (citation omitted). However, Section 2962(e) of the Home Rule Charter Law, provides: "Statutes that are uniform and applicable in every part of this Commonwealth shall remain in effect and shall not be changed or modified by this subpart. Statutes shall supersede any municipal ordinance or resolution on the same subject." 53 Pa.C.S. § 2962(e). Thus, where a home rule charter provision directly conflicts with a state statute like the Election Code, the statute must prevail. Wecht.
Here, Article XI, Section 1102 of the Charter sets forth the rights of the City's residents to participate in the initiative and referendum process. Section 1103 of the Charter states how the initiative and referendum process is to be commenced. Section 1104 of the Charter mandates how and when petitions are to be filed. Section 1105 of the Charter states the review procedure by the City Clerk, City Council and the courts. Section 1106 of the Charter requires suspension of ordinances while referenda are being considered. Section 1107 of the Charter requires City Council to review the petitioned matters and, if City Council does not act, the matter is placed on the ballot for voters to decide. Section 1108 of the Charter proscribes actions to be taken following the election if the majority votes in favor of the initiative or referendum. Section 1109 of the Charter states what should occur if the initiative or referendum is rejected by voters.
Section 2962 of the Home Rule Charter Law specifically prohibits the Charter from giving any power to the City "contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable to a class or classes of municipalities: . . . [related to] the conduct of elections. . . ." However, Sections 1102 through 1109 of the Charter are not contrary to, nor limit or enlarge the Election Code. First, Election Code Sections 201.1 and 977 do not apply here. Section 201.1 of the Election Code specifies how constitutional amendments and state-wide ballot questions are to be placed on ballots by the Secretary of the Commonwealth, and is not applicable to local initiatives and referenda. Section 977 of the Election Code relates to objections to nomination petitions and papers, not local initiative and referendum petitions. In addition, although Section 1201 of the Election Code sets forth how the county board of elections shall give notice of questions to be submitted in advance of November elections, it does not conflict with the Charter Article XI, in which Section 1107(b) states merely that questions shall be placed on the ballot at least 35 days after final City Council action. Because Charter Sections 1102 through 1109 of the Charter are not directly contrary to, nor limit or enlarge Sections 201.1, 977 and 1201 of the Election Code, they do not violate Section 2962(a)(5) of the Home Rule Charter Law.
Specific initiative and referendum procedures are indeed set forth in Sections 1030 through 1064 of the Third Class City Code. However, the Third Class City Code was no longer applicable to the City after it became a home rule municipality. Moreover, although the courts have not consistently decided the issue, there is case law to support a conclusion that, because the Third Class City Code is not uniform and applicable in every part of the Commonwealth, the City was free to adopt Charter provisions that differed from it. See Cnty. of Del. v. Twp. of Middletown, 511 Pa. 66, 511 A.2d 811 (1986); see also In re: Condemnation by the City of Coatesville, 898 A.2d 1186 (Pa. Cmwlth. 2006); see also Wecht. Finally, even if the Third Class City Code applies here, Section 1060 of the Third Class City Code specifically provides:
53 P.S. §§ 36030-36064. --------
The city clerk shall certify to the county board of elections a copy of the ordinance and the proceedings of council directing the referendum vote, and the county board of elections shall cause the question to be printed for use in the election districts of the city. The preparation of ballots or ballot labels for and the holding of special elections shall be as provided in the Pennsylvania Election Code. Any number of ordinances may be referred and voted on at the same election.(Footnote omitted). Section 1107 of the Charter, which directs that initiative and referendum questions be placed on the ballot in the absence of City Council's action, does not impinge on this provision. Because Charter Sections 1102 through 1109 are not directly contrary to, nor limit or enlarge Section 1060 of the Third Class City Code, they do not violate Section 2962(a)(5) of the Home Rule Charter Law. Accordingly, the Charter Board did not err by failing to find Charter Article XI, Sections 1102 through 1109 illegal and null and void.
Based upon the foregoing, the trial court properly affirmed the Charter Board's final opinion and order. Therefore, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge Judge Simpson concurs in the result only.
ORDER
AND NOW, this 23rd day of October, 2012, the Berks County Court of Common Pleas' December 9, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge