Anthony Verwey discusses the “Public Officials and Employee’s Ethics Act” in the video below. Give Anthony a call if you have any questions about this Act at (610) 692-1371.
Anthony Verwey is a partner at Unruh, Turner, Burke and Frees. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.
The United States Supreme Court has issued a decision in City of Ontario v. Quon, which was discussed in my May 13, 2010 blog entry. At issue in the case was whether a member of the police SWAT team had a reasonable expectation of privacy in text messages transmitted on a SWAT pager.
Given the continuing evolution of workplace norms for communication technology, the Court declined to make a determination regarding employees’ privacy expectations for employer-provided technological equipment. Instead the Court determined the case on Fourth Amendment search law.
The Court determined, even if the employee had a reasonable expectation of privacy in his text messages, the Fourth Amendment was not violated in reviewing the messages. The Court utilized the “special needs” of the work place exception. The search was found to be justified as it was reasonably necessary for a noninvestigatory work-related purpose; the determination of whether employees were being forced to pay for work-related text message overages. The scope of search, the review of the transcripts, was found to be reasonable, as the review was limited to certain months and only to messages sent during work hours. Finally, the Court found the employee was reasonably aware that an audit of messages to determine whether the pager was being appropriately used was possible. The Court found the search to be reasonable.
While this case involved public governmental employees, the Court also concluded that this search would have been reasonable in the private employer context.
If you have questions regarding this decision and how it may impact your technology policies, please contact Amanda Sundquist in our West Chester office.
In an unusual verdict, a jury for the United States District Court for the Eastern District of Pennsylvania, in MFS, Inc. v Dilazaro, has found four Pennsylvania Department of Environmental Protection employees individually liable for $6.5 million dollars in damages. Typically, government workers are protected by the doctrine of sovereign immunity from such claims when acting within the scope of their official duties. However, MFS, in asserting First Amendment retaliation and equal protection claims under §1983 and procedural and substantive due process claims, alleged the employees had acted outside of the scope of their employment. The jury agreed.
The case arose out of a series of disputes dating back to 2001 involving odors from a mineral wool manufacturing facility that MFS had operated since 1988. The disputes culminated in 2007, when the Department declined to renew MFS’s Title V Operational Permit. The Department claimed MFS’s facility was emitting malodors, even though MFS had not recently received any notices of violation. Ultimately, the Department issued a draft of a conditional Title V permit which contained 91 conditions. MFS objected to two conditions which it alleged were not legally valid or reasonable: (1) a condition which imposed an operating permit compliance schedule that would have altered the terms of a Consent Decree entered into as part of a previous case, and (2) a condition which granted the Department the absolute right to shut down MFS upon issuance of a notice of violation. Shortly thereafter, MFS brought suit. More factual background can be found on the Court’s website here and here.
The Philadelphia Inquirer reports that the Department has a motion pending before the Court to have the verdict overturned. Stay tuned for new developments on this case.
Selling to and purchasing for local governments in Pennsylvania poses unique challenges because local government in Pennsylvania is very local. The Brookings Institution has calculated that Pennsylvania has 2,566 municipalities: 56 cities; 962 boroughs; 91 first class townships, and; 1,457 second class townships. This does not include Pennsylvania’s 501 school districts, 29 intermediate units or 67 counties. Each type of these political subdivisions is bound by specific procurement requirements. Although these laws generally require that all public contracts for non-professional services in excess of $10,000 be awarded through a bidding process, each can be subject to change and has its own wrinkles.
Although this purchasing regimen may seem daunting to both the buyers and sellers, the laws governing purchasing are similar and may be navigated by an experienced practitioner. Furthermore, Pennsylvania allows certain local governments to participate in purchasing collectives. However, both purchasers and sellers must be sure to strictly comply with the laws regarding collectives. For the vendors, obtaining prequalification from a collective is important, and for purchasers they must assure that they pass and comply with the required resolutions and that the collective from which they are purchasing complies with all aspects of the law.
If you would like more information about purchasing from these collectives or selling goods and services to Pennsylvania’s municipalities and other political subdivisions, please contact Dan Dwyer in our West Chester office.
January 2010 marks the first anniversary of the implementation of the new Pennsylvania Right-to-Know Law. The past year has been a year of firsts for local agencies, requesters, and the Office of Open Records as the law has been implemented and interpreted. Sixty-five determinations by the Office of Open Records have been appealed to common pleas courts throughout the state, with a number of such decisions awaiting decision by the Commonwealth Court. The Commonwealth Court’s Order granting the preliminary injunction to stop the disclosure of public school employees’ home addresses and subsequent advisory by the Office of Open Records stopping the disclosure of all public employees’ home addresses continues to be one of the most significant developments under the Right-to-Know Law in 2009.
As your municipality begins the new year, please contact Amanda Sundquist to update or create municipality specific forms, for assistance with challenging requests, or to receive guidance as the courts of common pleas and the Commonwealth Court continues to issue decisions.
Despite attempts by the City of Philadelphia and Fox Chase Cancer Center to make alternate use of a portion of Fairmont Park, their efforts have failed to date based upon a recent decision reached by the Pennsylvania Commonwealth Court. In In Re Estate of Ryerss, -A.2d – (Pa. Commw. Ct. 2009), the City of Philadelphia and Fox Chase Cancer Center (the “Appellants”) sought authorization to discontinue the use of nearly 20 acres of Fairmont Park as parkland and lease those acres to the Fox Chase Cancer Center for expansion of the cancer center’s medical facilities. The portion of Fairmont Park at issue was devised to the city in 1889 to be used as a park for the use and enjoyment of the public. Arguments by the parties in this case centered around the act known as the Donated or Dedicated Property Act (“DDPA”), 53 P.S. §§3381-3386. The court determined that based upon the DDPA, the Appellants failed to show that the continued use of the property as parkland was no longer practicable or that the use of the property as a park had ceased serving the public interest.
Although the court acknowledged that the expansion of the cancer center might benefit the city, the court rejected a “balancing test,” stating that “[if] it did permit such balancing, every donated park in the Commonwealth would be at risk of being leased so that cash-strapped municipalities could balance their budgets…it would likely discourage individuals from donating their property to be used for public purposes in the future.”
For more information on this case and how it relates to local governments and developers, please contact Kimberly P. Venzie.
How fast does a local government have to move in processing a cell tower application? A new federal regulatory order attempts to speed the process.
On November 19, 2009 the Federal Communications Commission issued an order that will impact municipalities and cell tower providers across the country. Known as the “shot clock” order, the FCC action establishes time frames that it says are reasonable for municipalities to act on applications– 150 days for a new tower, and 90 days for certain additions to existing towers (known as “collocation”).
This FCC decision may create tension between federal timing expectations, and local zoning and planning law.
The FCC order is sure to be debated by local governments and the cell tower industry—especially since the FCC decision appears to attempt to administratively overrule a series of federal cases involving burdens of proof. Some federal court decisions have come down in favor of municipal control over cell tower siting (including a lead 3d Circuit case litigated by this writer, Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Township, (3d Cir. 2003). Since the FCC appears to have adopted standards inconsistent with federal case law in some circuits, the ongoing push and pull between the cell tower industry and local government may be heading back to the courts.
For more information on the new FCC order, and its impacts, please contact Andrew D.H. Rau.
Is a defective ordinance always ineffective? It all depends, according to a new decision of the Commonwealth Court. In Hawk v. the Eldred Township Board of Supervisors, —A.2d—(Pa. Commw. Ct. 2009), the Pennsylvania Commonwealth Court discussed Section 5571.1 of the Judicial Code as well as related changes to Section 1002-A (b) of the Municipalities Planning Code with respect to procedural challenges to municipal ordinances. The Appellant filed a procedural challenge to an ordinance nearly four years after the ordinance’s enactment date. New Section 5571.1 of the Judicial Code sets forth a multi-tiered system in which the criteria for challenging an ordinance vary and increase depending upon the amount of time that has passed since its adoption. The Court found that the Appellant was unable to meet his burden to show that insufficient notice was given to the public. The Appellant was further unable to rebut the presumption of substantial reliance on the ordinance by the Township and its landowners – a requirement set forth in Section 5571.1(d)(2) of the Judicial Code which applies if the ordinance is challenged two or more years after its effective date.
The Court noted that a challenge to an ordinance can never be time barred if doing so would cause the challenger to suffer a deprivation of constitutional rights; however, this was not shown in the instant case. As discussed by the Court, Section 5571.1 of the Judicial Code does indeed increase the hurdles to procedural challenges as time passes, and further increases the burden placed on challengers to rebut the presumption of reliance upon the ordinances which serves to protect municipalities and alleviate their uncertainty as to whether their ordinances are valid. Clearly, municipalities should continue to carefully follow procedures with respect to enactment of their ordinances; however, it does appear that with the passage of time, municipalities now have a greater chance of their ordinances being found to be valid and enforceable. For more questions regarding how this case may impact your property or your municipality, please contact our office.
The Pennsylvania State Education Association and employees recently sought a preliminary injunction against the Pennsylvania Office of Open Records to prevent the disclosure of their home addresses pursuant to the Right-to-Know Law. In a recent Order and Opinion, the Pennsylvania Commonwealth Court has determined that public school employees’ privacy interest in their home addresses outweighs the Commonwealth’s interest in public disclosure of home addresses.(1) The Commonwealth Court conceded that the Right-to-Know Law does not specifically exempt the home addresses of public school employees from public disclosure. However, the Court held that held that the Pennsylvania Constitution may provide a person with a privacy intrest in his or her home address and the benefit of public disclosure does not outweigh this privacy interest. The Court granted the preliminary injunction to stop the disclosure of the employees’ home addresses.
In an advisory issued by the PA Office of Open Records, Executive Director Terry Mutchler directed that there will be no Final Determinations issued by the Office of Open Records resulting in the mandated release of any public employees’ home addresses (not just limited to public school employees) pending final resolution of the above litigation. For updates on advisories issued by the Office of Open Records and other related information on the Right-to-Know Law, please go to its website at http://openrecords.state.pa.us.
If you have any questions regarding the above or would like updates on recent developments under the Right-to-Know Law, please contact Kimberly P. Venzie.
________________________
(1)Pennsylvania State Educ. Association ex rel. Wilson v. Com., Dept. of Community and Economic Development, Office of Open Records, 2009 WL 2602198 (Pa. Cmwlth.).
Out of school activities by students and staff that impact the effective running of a school district are a gray area to navigate. Recently, the 9th U.S. Circuit Court of Appeals concluded that a teacher’s personal blog contained “several highly personal and vituperative comments” which justified the school district demoting her from her job as a curriculum specialist and instructional coach to a classroom teacher. The legitimate administrative interests of the school district outweighed the employee’s First Amendment rights.
While the Court’s decision in Richerson v. Beckon is not controlling in Pennsylvania, it illustrates the need for employees and students to exercise good judgment in what they place on blogs and other internet communication vehicles. For more information please contact our office.
Thank you for visiting our blog, make sure to add our rss feed (located below) to your favorite news reader. If you have a question about this area of the law, please drop us an email, we might even post your answer on this blog.
