Pennsylvania Legislation Implements Home Rule

by Charles Hoffman*

HE long and arduous struggle to achieve home rule for Pennsylvania’s local T governments was consummated by the passage of Act 62, signed into law by Governor Milton Shapp on April 13. This legislation implements Sections 2 and 3, Article IX, of the Pennsylvania constitution, for the first time enabling every county, city, borough, incorporated town and township in the state to adopt a home rule charter or an optional plan of government.

Under home rule, a municipality drafts its own plan of government, out- lining a structure of government and determining which powers shall be exer- cised. The municipal home rule charter can provide for any type of govern- mental structure deemed suitable to meet the municipality’s needs, except that it must include a governing body chosen by popular election. A municipality which has adopted a home rule charter may do anything that is not expressly denied by the constitution or by the General Assembly. The home rule charter, therefore, becomes the basic law or “constitution” for the municipality.

A municipality adopting an optional plan of government, rather than going through the more complex process of drafting a home rule charter, merely selects one of the alternative plans ef government organization presented in Act 62. Adoption of an optional plan modifies the structure of the municipal government, although the municipality continues to operate under its municipal code and other applicable state laws.

Both home rule and optional plans are methods of restructuring local govern- ments. Adoption of either requires a serious study of the organization and operation of the municipal government in relation to the needs and problems of the community. The General Assembly has provided a single piece of legis- lation establishing a uniform procedure for consideration and adoption of home rule and optional plans.

The procedure for adopting home rule or an optional plan requires the voters of a municipality to elect a study commission which examines the form of government of the municipality and recommends a home rule charter, one of the optional plans, or retention of the existing form of government. The recommendation of the study commission is placed on the ballot. Any change of government requires approval by a majority of those voting in the referendum.

The first step in the adoption of a home rule charter or optional plan of government is to get the question of having a Government Study Commission

* Charles Hoffman is a research analyst in the Pennsylvania Department of Community Affairs’ Bureau of Policy, Planning and Information. This article is reprinted by permis- sion of the department from Reports, May 1972, page 3.

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on the ballot. This may be done through an ordinance of the municipal govern- ing body or by initiative petition of the voters. A petition for this purpose must be signed by a number of electors equal to at least five percent of the number of electors voting for the office of governor in the last gubernatorial election. The petition or ordinance is to specify whether the commission is to be com- posed of seven, nine or 11 members.

Actually, any one of three questions may be placed on the ballot. The ballot question may specify that the study commission is to consider a home rule charter, or it may specify that the study commission be limited to recom- mending only one of the optional plans of government or it may provide that the study commission may recommend either a home rule charter or one of the optional plans of government, Thus the initial question that is placed on the ballot may limit the considerations of the study commission to home rule or to optional forms, or it may allow the commission to recommend either one or the other after its study of the situation. The amount of flexibility to be allowed the study commission is determined locally.

The duty of the study commission is to study the form of government pres- ently existing in the municipality, to compare it with other forms available, and to decide on the desirability of a changed form of government. I t is to base its recommendation on whether or not a changed form of government would strengthen the municipality. This includes both making it more clearly respon- sible or accountable to the people and making its operation more economical or efficient.

The study commission serves without compensation, but members will be reimbursed for expenses. The commission may appoint consultants and employ clerical staff. I t is required to hold one or more public hearings and provide widespread public information of the progress of its work.

The commission is to report its findings within nine months from the date of its election, except that in cases where a home rule charter is to be recom- mended an additional three months is permitted. If the commission recom- mends the adoption of a home rule charter or one of the optional plans, the report is to contain the charter or complete plan as recommended.

The question of adopting the form of government recommended by the study commission is to be submitted to the electorate at the time specified in the report. Approval of any change in the form of government requires an affirma- tive majority of those voting on the question. If the voters do not approve the proposed change, the municipality retains its existing form of government. The voters of any municipality which has adopted a home rule charter or an op- tional plan of government may not vote on changing the form of government for a period of five years. No ordinance or petition may be filed for the election of a study commission if proceedings are already pending under the act, nor on the same question if it has been defeated within the past five years.

Act 62 gives municipalities which have adopted home rule charters the right to exercise any power or perform any function not denied by the constitution of Pennsylvania, by its home rule charter or by the General Assembly a t any

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time. However, home rule municipalities are restricted to the powers authorized by state law on the following subjects: (1) the filing and collection of munici- pal tax claims, ( 2 ) eminent domain, ( 3 ) municipal boundary changes, (4) public schools, (5) voter registration and elections, (6) fixing the subjects of taxation, ( 7 ) fixing rates of taxation of nonproperty or personal taxes levied on nonresidents, (8) assessment of real or personal property, and (9) defining or providing for the punishment of any felony or misdemeanor.

In addition, municipalities may not engage in any proprietary or private business except as authorized by the General Assembly; they may not diminish the rights or privileges of municipal employees in pension systems; they may not regulate the manufacture, distribution and sale of any foods, goods or services subject to existing state laws or regulations; they may not enact any provisions conflicting with state laws affecting the rights, benefits or working conditions of municipal employees; they may not require businesses or em- ployers to withhold or report taxes except as provided by general state laws; and they may not enact ordinances regulating the ownership and sale of fire- arms. Also, state laws that are uniform and applicable throughout the com- monwealth may not be superseded by ordinances of home rule municipalities.

Notably, among the new powers granted to municipalities by the act is the right to set rates of taxation on property taxes and on personal taxes on resi- dents. Municipalities are free to tailor their tax structures to meet local needs and circumstances. The General Assembly retains power over the designation of subjects of taxation and over rates of taxation on nonresidents.

Both county and subcounty units can adopt home rule charters, but a county which wishes to exercise within any municipality a power or function already being exercised by that municipality must follow the procedure set forth in the act. An ordinance authorizing the exercise of the power or function by the county must be filed with each municipality within the county. The transfer of the power or function shall not become effective for a t least 15 months from its date of adoption. In any municipality exercising the power or function pro- posed to be exercised by the county, the municipal governing body may pass an ordinance to be excluded from the county exercise of that function, but it must do so within a period of 120 days from the date of adoption of the county ordinance.

A municipality that elects to be excluded may later request the county to be included. No tax or fee levied by the county to support an assumed function will be applicable in a municipality which has excluded itself. A municipality may withdraw from county exercise of a function after a period of four years, such action to be by ordinance of the governing body or by initiative and referendum.

Should the study commission decide to recommend an optional plan, Act 62 provides six basic optional plans for it to choose from. The act provides three executive-council plans, a council-manager plan, a small municipality plan and an optional county plan. Within each basic plan there are a number of sub- options to be considered by the study commission, relating to the size of coun-

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cil and its manner of election, the offices of treasurer and controller and the title of the executive. The variety and flexibility of the plans offered allow a municipality which does not choose to adopt a home rule charter to tailor its form of government to suit local conditions through adoption of an optional plan.

All three executive-council plans provide for the election of a council, an executive or mayor and a district attorney in the case of counties. The council exercises the legislative powers of the municipality. It consists of three, five, seven or nine members which may be elected at large, by district, or combina- tion at-large and district basis, as provided in the report of the study commis- sion. The executive, who may be termed “mayor” or “executive,” supervises the departments of the municipal government and appoints department heads with the consent of council. He may veto ordinances of council, but such a veto can be overridden by a council vote of a majority plus one of its members.

Under executive (mayor)-council plan A the establishment of a department of administration is optional. Such a department would assist in the prepara- tion of the budget, operate centralized purchasing, personnel and accounting systems and perform duties assigned by the mayor or prescribed by the ad- ministrative code. Executive (mayor)-council plan B is identical to plan A ex- cept that the establishment of a department of administration and appointment of a director of administration is mandated. In executive (mayor)-council plan C the appointment of a managing director is mandated. He is appointed by the mayor with the consent of council and serves at the pleasure of the executive. The managing director supervises the departments of the municipal govern- ment and reports directly to the executive.

The council-manager plan calls for the election of a council and a district attorney in the case of counties. The council is the legislative and policy-mak- ing body for the municipality. It consists of three, five, seven or nine members who may be elected at large, by district, or combination at-large and district basis. The council chooses one of its members as mayor or the mayor may be elected directly by the voters. The mayor presides over council and serves as ceremonial head of the municipal government. The council appoints a manager to serve a t its pleasure. The manager is responsible for the administration of the municipal government, appoints all subordinate officers and carries out the policies established by council.

The small municipality plan may be adopted by any municipality having a population of less than 7,500 a t the last census. The plan provides for an elected executive (mayor) and councilmen and a district attorney in the case of counties. The council is composed of the executive and two, four, six or eight councilmen. The executive is elected at large, but the councilmen may be chosen at-large, by district, or combination at-large and district basis. The executive presides at all council meetings and has a voice and vote in its pro- ceedings, but no veto power. The executive is responsible for the administra- tion of municipal affairs and appoints subordinate officers with the consent of council.