1252 Petition of the Township of Mahoning and the Township of Mahoning Vacancy Board; case No. 200 of 2016

Title 255—LOCAL
COURT RULES

MONTOUR COUNTY

Petition of the Township of Mahoning and the Township of Mahoning Vacancy Board; Case No. 200 of 2016

Appearances:

[46 Pa.B. 3954]
[Saturday, July 23, 2016]

 Ryan M. Tira, Esquire, Attorney for Petitioner

 July 5, 2016. James, J.

Opinion

History of Matter

 On May 18, 2016, Mahoning Township Supervisor, David Barron, submitted his written resignation as supervisor, effective May 19, 2016. The procedure to fill the supervisor vacancy is governed by 53 P.S. § 65407:

If the electors of any township fail to choose a supervisor, tax collector or auditor, or if any person elected to any office fails to serve in the office, or if a vacancy occurs in the office by death, resignation, removal from the township or otherwise, the board of supervisors may appoint a successor who is an elector of the township and has resided in that township continuously for at least one year prior to their appointment, and, upon their failure to make theappointment within thirty days after the vacancy occurs, the vacancy shall be filled within fifteen additional days be the vacancy board. The vacancy board shall consist of the board of supervisors and one elector of the township, who shall be appointed by the board of supervisors at the board's first meeting each calendar year or as soon after that as practical and who shall act as chairman of the vacancy board. If the vacancy board fails to fill the position within fifteen days, the chairman shall, or if there is a vacancy in the chairmanship the remaining members of the vacancy board shall, petition the court of common pleas to fill the vacancy. If two or more vacancies in the office of supervisor occur on a three-member board or three or more vacancies on a five-member board, the court of common pleas shall fill the vacancies upon presentation of petition signed by not less than fifteen electors of the township. The successor so appointed shall hold the office until the first Monday in January after the municipal election which occurs more than sixty days after the vacancy occurs, at which election an eligible person shall be elected for the unexpired term.

 The successor supervisor, if and when appointed, will hold the office pursuant to the statute until the first Monday after the first municipal election occurring more than sixty (60) days after the vacancy occurs. Thus, the election for the remainder of the term will be during the 2017 election cycle. The newly elected supervisor will serve until January 2018.

 The two remaining supervisors were unable to agree upon a person to fill the vacancy. The same two supervisors comprise the Vacancy Board, which also could not agree upon a successor to fill the vacancy. Thus, pursuant to the statute, Mahoning Township and the Mahoning Township Vacancy Board filed a petition requesting the court to make an appointment to fill the vacancy.

 This court set a hearing date and directed that the notice of hearing be published in two newspapers of general circulation. The court further requested that any persons interested in applying for the vacancy provide this court with a letter of interest and a resume.

 The court received letters of interest and resumes from three individuals, all former supervisors: Christine DeLong, Ron Miller, and Kenneth Woodruff. A hearing was held on June 27, 2016, in the main courtroom of the Montour County Courthouse. The hearing was essentially a job interview. Interested citizens in the courtroom were provided with forms to make written signed comments on or before Friday, July 1, 2016. The court entertained opening and closing comments by the applicants and asked numerous questions in a panel style setting.

 The remaining two supervisors were asked a few questions by the court concerning the status of the township, and a few members of the courtroom audience made observations and comments. No one was denied an opportunity to speak. The court has received about sixty-eight (68) comments by interested persons.¹ The court is now in a position to select an applicant.

Discussion

 There is virtually no guidance in the statute as to the criteria that a court must use to select among various applicants for a supervisor vacancy. There is scant case law. However, a common pleas court weighed in on the issue:

''The Legislature, while imposing upon the court the duty of making such appointments, never provided any standards or guidelines to be followed in making the appointment, other than that HN1 the appointee must be a registered voter of the municipality. The long-standing policy of this court has been that in making such appointments the appointee should be a member of the same political party as the person whose position is to be filled. This principle approximates as closely as possible the will of the electorate of the community. We believe that this policy which has guided the Judges of this court in the past is a wise one.'' (Italics supplied.)

I

 Independence Township Supervisor, 50 Pa.D.&.C.2d 464,465 (C.C.P. Beaver 1970), citing In re Township Commissioner Vacancy, 28 Beaver 179 (1968).

 The Independence Township Supervisor court further said:

This same policy was expressed by the late Judge McCreary and former Judge Sohn of this court in petition to Fill Aliquippa School Board Vacancy, 21 Beaver 241 (1960), as follows:

''The stability of, and the confidence of the public in our legal system, make it imperative that judges be consistent, fair and impartial in all matters coming before the courts. In matters such as this, we should consider the will of the electorate if it has been indicated. In deciding the issue presently before the court, we are not without precedent. In re Petition for Appointment of School Director for the School District of the Borough of Midland, Pennsylvania, 132 March Term, 1950, our court indicated that we should 'take into consideration, as an important factor, the wishes of the people as a whole in the municipality where the vacancy occurs, all other factors being equal.'''

Id.

 As the court suggested at the hearing/interview, the court is very hesitant to supplant the will of the voters. Supervisors should be elected, not appointed. However, several interested parties and officials suggested that without a decision on certain matters for the next eighteen (18) months, township as well as county projects could be negatively impacted. Thus, this court will make an appointment taking into account the qualifications of the candidates and their answers to the interview questions.

 In the case at bar, all three applicants had supervisor experience. The court notes that all three candidates expressed a willingness and desire to be open-minded regarding issues facing the township and to working with the other supervisors in the best interest of the township. Importantly, since this appointment is for an interim position until the voters select a new supervisor, all three applicants indicated that they would ''refrain from making any major changes to the municipal structure or significant personnel changes (unless deemed immediately absolutely necessary) until after the next elected supervisor takes office.'' That position seems democratically important since it would be the newly elected supervisor, in conjunction with the other elected supervisors, who would be making major decisions. Thus, the will of the electorate would be reflected by the governance of elected officials, not by the courts.

 The three applicants were asked whether they would run for office after this appointed term ends. Mr. Woodruff is the only one who said he would not run.

 The court questioned whether a Republican should be appointed since a Republican is being replaced. All three agreed that party should not play a role in this selection process. The court notes that traditionally party continuity has been considered when filling elected vacancies, and the courts have recognized this as a consideration in determining the will of the people. However, under all of the circumstances here, party affiliation is of minimal consideration and is not a tipping point.

 The three applicants gave good answers, in varying degrees, to the many questions the court posed. However, some answers were needlessly contentious. All three applicants have a long history of service to the citizens of Mahoning Township. All three applicants are qualified in varying degrees to serve as a township supervisor.

 After consideration of the applicants' qualifications and background and the answers each gave, and their comments to the court, the court finds that Kenneth Woodruff shall be appointed as supervisor of Mahoning Township to fill the vacancy presently existing. He pledged that he would manage the township in the best interest of all the people The court has specifically taken into consideration Mr. Woodruff's qualifications and background, the answers he provided to the court, and the fact that he stated that he will not seek election for this vacancy.

By the Court

THOMAS ARTHUR JAMES, Jr., 
President Judge

Petition of the Township of Mahoning and the Township of Mahoning Vacancy Board;
Case No. 200 of 2016

Order

 And Now, this 5th day of July, 2016, after hearing/interviews held concerning the Petition of the Township of Mahoning and the Township of Mahoning Vacancy Board, the Court appoints Kenneth Woodruff as Supervisor of Mahoning Township to fill the vacant position until the first Monday in January after the 2017 municipal election, at which election an eligible person shall be elected for the unexpired term.

By the Court

THOMAS ARTHUR JAMES, Jr., 
President Judge

[Pa.B. Doc. No. 16-1252. Filed for public inspection July 22, 2016, 9:00 a.m.]

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¹  The written comments were signed and almost all were without invective or accusation. This court realizes that letters may have been prompted by candidates, but that is only natural and expected. All three candidates received a number of letters of support and praise. The court is hesitant to put too much weight on the letters of support. However, the great weight of the letters confirmed this court's initial impression after the courtroom interview. The court must address the concerns of one letter writer which questions the court's effort to be totally transparent. That writer wondered how the press only had an application from one candidate. One candidate filed the resume with the prothonotary. However, this court gave all three resumes to the press reporter for his review at his request before the hearing/interview. That same letter complained that one of the vocal Mahoning Township citizens was present at the hearing in an official capacity and that it created a bad visual message. This court agrees that the visuals may have been bad. However, this court literally cannot see, from the bench, the people sitting below the bench and does not recall noticing anyone in particular. The visual may have been questionable from the audience, but the reality was inconsequential.