PELRAS Update | June 2023 – Second Class Townships Cannot Remove Problematic Township Supervisors by Reducing the Board Size

Allison N. Genard, Esq., Campbell Durrant, P.C. | June 2023

Dealing with difficult elected officials (and in particular those that create employment-based liability) is challenging and there is no magic cure to solve this circumstance. The Commonwealth Court recently confirmed this obstacle in a case that involved a referendum passed by the community electorate. In April, the Commonwealth Court ruled that Section 402(e) of the Second Class Township Code violated Article VI, Section 7 of the Pennsylvania Constitution when it was used to prematurely end the term of two (2) Township Supervisors. Martin v. Donegal Township, — A.3d —, 2023 WL 2920415 (Pa. Cmwlth. 2023).  

At issue in this case was a five-member Board of Supervisors for Donegal Township which was comprised of two (2) supervisors that were elected in the fall of 2017 to terms that expired in January 2022.  Two (2) others were elected in the fall of 2019, with terms originally set to expire in January 2024. The last Township Supervisor was elected in the fall of 2019, with a term that was set to expire in January 2026.

In November 2020, Donegal Township residents voted to pass a referendum to reduce the five-member Township Board of Supervisors to three (3) supervisors. Section 402(e) of the Second Class Township Code (53 P.S. § 65402(e)) provides:

At the first municipal election following approval of the question providing for a return to a three-member board, three supervisors shall be elected to serve from the first Monday of January after the election, when the terms of the officers of the five-member board of supervisors shall cease. The three candidates receiving the highest number of votes for the office of supervisor shall be elected. The candidate receiving the highest number of votes shall serve for a term of six years. The candidate receiving the second highest number of votes shall serve for a term of four years. The candidate receiving the third highest number of votes shall serve for a term of two years. …

On May 18, 2021, five (5) individuals who were running for the Township Supervisor position received the most votes in the Primary Election. Of those five (5), two new supervisors and one current supervisor were elected in the General Election.  

Based on the 2020 referendum, three members of the previous five-member board were to be removed and have their terms cut short on January 3, 2022. These supervisors (who were termed out based on the referendum) sued Donegal Township, the current elected officials and the Washington County Board of Elections. In the lawsuit, the Supervisors argued that Section 402(e) of the Second Class Township Code violates Article IV, Section 7 of the Pennsylvania Constitution and therefore was unenforceable.

The Commonwealth Court agreed with the Supervisors who were to be removed board members and held that Section 402(e) as applied in this case violated the Pennsylvania Constitution. The Court reaffirmed that Township Supervisors could only be removed from office in the manner established in the Pennsylvania Constitution. Article IV, Section 7 which states that “All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.”

The Commonwealth Court held that while the process to reduce the board from five (5) members to three (3) was appropriate and constitutional, elected officials could not be removed from office through this process. The Court held that the Pennsylvania Constitution required that elected officials serve the remainder of their terms, and the board could be reduced as those terms expired. The Commonwealth Court also held that a supervisor whose term expired and was not re-elected lacked standing to challenge the reduction of the board member number or the removal of the supervisors whose terms had not expired.

The practical implications of this ruling are that the Commonwealth Court has confirmed that Section 402(e) and the reduction of Township Supervisors is not a way to remove problematic elected officials. Difficult Township Supervisors can create potential liability by engaging in harassing, discriminatory, or retaliatory behavior with township employees and there is no quick fix.

The problematic supervisor must be permitted to serve out the term for which they were elected if they have not been convicted of a crime or removed for cause by the Governor and two-thirds vote of the Senate. To minimize the liability of a rogue elected official, other Township Supervisors should make it clear that the problematic supervisor’s behavior is unacceptable and should cease. When possible, measures should be put in place to prevent or immediately address the misconduct. The municipality may also consider whether they are able to start the process to Petition the Governor for a hearing for removal.