Mukerji v. City of Reading Charter Review Board

83 Pa. D. & C.4th 145, 2007 Pa. Dist. & Cnty. Dec. LEXIS 304
CourtPennsylvania Court of Common Pleas, Berks County
DecidedMarch 26, 2007
Docketno. 06-9833
StatusPublished

This text of 83 Pa. D. & C.4th 145 (Mukerji v. City of Reading Charter Review Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mukerji v. City of Reading Charter Review Board, 83 Pa. D. & C.4th 145, 2007 Pa. Dist. & Cnty. Dec. LEXIS 304 (Pa. Super. Ct. 2007).

Opinion

LASH, J,

The matters before this court are the petition of Adam Mukerji and City of Reading for review of the final order of the City of Reading Charter Board dated July 24,2006, and a corresponding motion of the Charter Board to enforce said order.

The order of July 24, 2006 entered disposition of a complaint filed by a City of Reading resident, Cherlynn Martin, alleging a violation of section 706 of the City Charter by Mukerji. Specifically, the complaint claimed that Mukerji, holding the position of Director of Community Development for the city, was not a resident of Reading, thereby failing to comply with the residency requirement of section 706. An evidentiary hearing was held on June 28, 2006 before the Charter Board. The Charter Board found that Mukerji was not a resident of the city, that under the residency requirement of the charter he was required to be a resident during his tenure, and that he was not excused from this requirement by any actions of the mayor or city council, including the passages of ordinances, which, according to Mukerji, changed his employment status to one not subject to the residency requirement.

The Charter Board suspended Mukerji for a period of 30 days, providing that Mukerji must establish residency within the city within 120 days of the date of the order or be terminated. The Charter Board also imposed fines. Mukerji and the city challenge the order, claiming that the order violated the Home Rule Charter and Penn[147]*147sylvania law in that, inter alia, it usurped the authority vested exclusively in city council and/or the mayor and violated ordinances adopted by the city council of Reading and approved by the mayor. The Charter Board seeks enforcement of its order. Argument was held before this court on March 19, 2007.

I. BACKGROUND

On November 2, 1993, city voters implemented the “Home Rule Charter” with a “strong mayor-council form of government with a managing director” in order to “make the government of the City of Reading more responsive to the needs of the citizens of Reading. . . .” (Report and recommended Home Rule Charter for the City of Reading, July 1993, page VI.) The charter was enacted pursuant to the Home Rule Charter and Optional Plans Law (HRC and OPL), 53 Pa.C.S. §§2901-3171. The charter became effective in January 1996.

Section 706 of the Home Rule Charter established a residency requirement for department directors. That section provides:

“Section 706. Compensation of heads of departments, offices and agencies.

“The compensation of all heads of departments, offices and agencies under the direction of the mayor shall be proposed by the mayor and approved by ordinance. Compensation of all other employees shall be set in accordance with the uniform pay plan established by city council in the personnel code. All such heads of departments, offices and agencies need not be residents of the city at the time of appointment, but after appointment [148]*148shall reside in the city. City residency shall be required within 12 months of being appointed.”

Pursuant to section 601 and section 703 of the charter, the city then enacted an Administrative Code and a Personnel Code. Section 1-207 of the Personnel Code established a residency requirement for all employees. That section states:

“Section 1-207. Residency.

“Section 706 of the charter stipulates the residency requirement for department directors. Section 401 of the charter stipulates residency requirement of the managing director. All employees hired by the City of Reading following the effective date of this Personnel Code shall become residents of the city within one year of date of hire and shall remain so during their period of employment with the city.”

In 2003, Pennsylvania’s Commonwealth Court was called upon to interpret the city charter relating to authority of the mayor, managing director and city council over non-exempt career service employees. In the case of City Council of the City of Reading v. Eppihimer, 835 A.2d 883 (Pa. Commw. 2003), the court found that the mayor and managing director, and not city council, possess exclusive administrative and executive authority over the appointment, promotion, transfer, demotion, suspension, dismissal or disciplinary action concerning nonexempt career service employees under the terms of the Home Rule Charter. The court also noted that the mayor carries his responsibility for employment of personnel through the managing director, who is the chief administrative officer of the city, pursuant to section 406 of the charter. Among other things, the managing director shall [149]*149“direct and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by this charter or by law.” The Department of Community Development is one of the departments in the administrative service of the city reporting to the managing director.

In the November 2002 general election, the charter was amended through referendum, taking effect the first Monday of January 2003. Among other things, the amendment established an independent Charter Board consisting of five city residents. Amendment I, section 2.b, provides jurisdiction of the Charter Board, as follows:

“(b) Jurisdiction. The Charter Board shall hear and decide all cases alleging violations of the charter or administrative code, except that its jurisdiction shall not extend to any case arising under the Ethics Code or the Personnel Code. Insofar as permitted by state law the board shall issue binding opinions, impose penalties and administrative fines, refer cases for prosecution, and conduct investigations on its own initiative and on referral or complaint. City counsel shall appropriate sufficient funds to enable the board to perform the duties assigned to it, including expenses for independent counsel and other necessary staff.”

Amendment I, section 2.c, required city council to, by ordinance, adopt regulations to implement the Charter Board. On or about July 25, 2005, city council enacted ordinance no. 46-2005, the Charter Board Ordinance. This ordinance granted powers to the Charter Board, including the power to hear and decide all complaints alleging violations of the charter and Administrative [150]*150Code,1 to conduct investigations, to hold hearings, to adopt rules and regulations to administer, implement, enforce and interpret the ordinance, and to impose penalties and administrative fines, as well as to refer matters before it to other authorities with jurisdiction. Among the penalties available to the Charter Board under the ordinance are the powers to suspend or terminate2 an employee, impose a fine, not to exceed $ 1,000 per violation, or impose an administrative fine of not more than $1,000 to defray the actual cost and expense of investigating a violation.3

II. FACTS OF THE CASE

In March 2002, the city hired Mukerji for the position of Manager of Economic Development. Sometime during September or October 2002, the city named him director of “Community and Economic Development,” an office created by the terms of the Administrative Code.4 The office is subject to the residency requirements of section 706 of the Charter Code.

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Bluebook (online)
83 Pa. D. & C.4th 145, 2007 Pa. Dist. & Cnty. Dec. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mukerji-v-city-of-reading-charter-review-board-pactcomplberks-2007.