Charter Board Ordinance

I. General Provisions

A. Title:

The Title of this ordinance shall be the City of Reading Charter Board Ordinance.

B. Purpose of Ordinance

The purpose of the City of Reading Charter Board Ordinance is to provide, through the institution of the City of Reading Charter Board, for the implementation of Amendment I of the Reading City Charter, which is entitled “Enforcement of Charter”.

II. Organization of Charter Board

A. Composition and structure of Charter Board

Composition

The Board established under Amendment 1 of the City of Reading Home Rule Charter shall be composed of five (5) residents of the City of Reading. Charter Board members shall be appointed by the Mayor with the consent of City Council.

2. Terms of Service

Members of the Board shall serve for terms of five (5) years, except that the members shall continue to serve until their successors are appointed and qualified. The terms of the initial members shall be staggered, with members serving terms of 1, 2, 3, 4, and 5 years respectively.

3. Vacancy

An individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed for the unexpired term of the member he/she succeeds and is eligible for appointment thereafter according to the terms herein.

4. Election of Chairperson and Vice-Chairperson

The Board shall elect a chairperson and vice-chairperson upon seating of the members and thereafter annually at a meeting held in July of each year. The vice-chairperson shall act as the chairperson in the absence of the chairperson or in the event of a vacancy in that position.

5. Quorum

A majority of the members of the Board shall constitute a quorum and, except as provided in Section 7: C,D, and E, the votes of a majority of the members present are required for any action or recommendation of the Board.

6. Staff

The Board shall appoint a solicitor, a secretary, and such other staff as may be deemed necessary. The solicitor, secretary, and such other staff as may be necessarily appointed shall not be members of the Board.

7. Meetings

The Board shall meet at the call of the Chairperson or at the call of a majority of its members.

8. Investigative Officer

The Board shall appoint an investigating officer as set forth herein. The investigative officer shall be a member in good standing of the Pennsylvania Bar Association and shall have so been for at least five (5) years. The investigative officer need not be a resident of the City of Reading and shall not be a Board member. The investigative officer is authorized to retain the services of an investigator and shall only delegate non-discretionary functions.

B. Prohibitions

Due to the nature of their appointment, Charter Board members have a duty to avoid any known conflicts of interest, especially actions or behaviors in violation of the City Charter or its full and impartial enforcement. The prohibitions in this section are in addition to all other duties, responsibilities, and obligations imposed upon Board members.

1. No member may hold or campaign for any other public office.

2. No member may hold office in any political party or political organization or political committee.

3. No member may hold a position of employment or appointment with city government or any board or commission formed by the City of Reading.

4. No member may actively participate in or contribute to any political campaign in the City of Reading for a candidate running for the office of Mayor, President of Council, Council Member, or Auditor. This does not abridge the right of a member to vote or attend a debate, speech or similar event that is held primarily for the purpose of communicating a candidate’s platform or position on issues of public concern.

5. No member shall receive compensation but shall be reimbursed by the City for documented expenses actually incurred.

C. Mandate to Fund

City Council shall appropriate sufficient funds for the Charter Board to perform both its enforcement and educational duties, including expenses for independent counsel, investigative personnel, staff, any other necessary personnel, and professional educational programming.

III. Powers and Duties of Charter Board

A. Charter Enforcement Powers The Charter Board shall have the following powers and duties with respect to Charter enforcement. It shall:

Hear and decide all complaints alleging violations of the Charter and Administrative Code, except that its jurisdiction shall not extend to cases arising under the Ethics Code or the

Personnel Code.

The Charter Board shall exercise discretion in declining to pursue an investigation if such a course would be in the public interest or where the activity complained of amounts to a de minimus violation.

2. Impose penalties and administrative fines.

3. Refer cases for prosecution.

4. Initiate investigations on its own motion.

5. Appoint an investigating officer to conduct investigations and to issue findings reports where appropriate.

6. Hold hearings, issue subpoenas and compel the attendance of witnesses, administer oaths, take testimony, require evidence on any matter under investigation before the Board, and issue orders, including but not limited to adjudications and penalties.

7. Adopt rules and regulations to administer, implement, enforce and interpret the Charter Board Ordinance.

8. Issue advisory opinions on matters concerning the interpretation of the Charter and Administrative Code. The enumeration of this power shall in no way diminish any of the foregoing powers of the Charter Board.

B. Charter Educational Powers

The Charter Board shall have the following powers and duties with respect to Charter education.

It shall:

1. Direct and administer, with professional assistance, the required orientation of all newly elected City officials at the commencement of their initial full term of office.

2. Be responsible, proactively and on an ongoing basis, for educating the public and members of City government as to their rights, duties, and obligations under the Charter and Administrative Code,

IV. Standards for Interpretation of Reading City Charter and Administrative Code

A. Standards for Charter interpretation: intent controls

1. The object of all interpretation and construction of Charter provisions is to ascertain and effectuate the intent of the authors of the Charter.

2. When the words of a Charter provision are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

3. When the words of a Charter provision are not explicit, the intent of the authors of the Charter shall be ascertained by considering:

(a) The mischief to be remedied.

(b) The object to be attained

(c) The circumstances under which it was enacted.

(d) The contemporaneous legislative history.

B. Standards for Administrative Code interpretation: intent controls

1. The object of all interpretation and construction of Administrative Code provisions is to ascertain and effectuate the intent of the enacting City Council.

2. When the words of an Administrative Code provision are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

3. When the words of an Administrative Code provision are not explicit, the intent of the enacting City Council shall be ascertained by considering:

(a) The mischief to be remedied.

(b) The object to be attained.

(c) The circumstances under which it was enacted.

(d) The contemporaneous legislative history.

C. Refinements of interpretative standards

The standards set forth in A. and B. above may be refined only in accordance with the Statutory Construction Act, 1 Pa. C.S.A. Sect. 1501 et seq, which is binding for the interpretation of all home rule charters through Cottone v. Kulis, 460 A. 2d 880 (Pa. Cmwlth. 1983), and for the interpretation of all municipal ordinances through Ciavarella et ux. Appeal, 484 A. 2d 420 (Pa. Cmwlth. 1984.)

V. Penalties; Other Remedies

A. Penalties. Upon any violation of the Charter or Administrative Code which falls under the jurisdiction of the Charter Board, any of the following penalties shall be available to the Charter

Board for imposition:

1. Admonition, in compliance with existing personnel practices, collective bargaining agreements and/or statutes, a letter to the respondent, the Mayor, the Managing Director, and Director of the Department in which the respondent is employed, if any, and the complainant, if any, indicating that the respondent has been found to have violated the Charter or Administrative Code;

2. Public Censure, in compliance with existing personnel practices, collective bargaining agreements and/or statutes, notification to the respondent, the Mayor, the Managing Director, the Director of the Department in which the respondent is employed, if any, and the complainant, if any, and the new media indicating that a violation of the Charter of Administrative Code took place and that the Board strongly disapproves of the public officials or public employee’s actions;

3. Suspension, without compensation for a stated period of time not to exceed 30 days, in compliance with existing personnel practices, collective bargaining agreements an/or statutes, with notification to the respondent, the Mayor, the Managing Director, the Director of the Department in which the respondent is employed, if any, and the complainant, if any;

4. Termination, in compliance with existing personnel practices, collective bargaining agreements and/or statutes, with notification to the respondent, the Mayor, the Managing Director, the Director of the Department in which the respondent is employed, if any, and the complainant, if any;

5. Referral to the appropriate authorities for criminal prosecution in cases where a violation of the Charter or Administrative Code is also a violation of federal or state law;

6. Imposition of a fine, not to exceed $1,000 per violation;

7. Imposition of an administrative fine of not more than $1,00 to defray the actual cost and expense of investigating any violation.

B. Restitution; other penalties and remedies

After finding that an individual has violated any provision of the Charter or the Administrative Code within the jurisdiction of the Board, the Board may take one or more of the following actions, if appropriate, in addition to the penalties described in Section 5(a):

1. Order the subject to make restitution to those incurring damage or injury as a direct result of the actions of the subject that have been adjudicated as a violation of the Administrative Code or Charter;

2. Order the subject to cease and desist from engaging in a particular activity that is in violation of the Administrative Code or Charter.

3. Order the subject to take specified action to bring him/her into compliance with Board directives

4. Refer the matter for review or with specific recommendation for action to law enforcement, regulatory or other authorities with jurisdiction over these matters;

5. Institute appropriate civil or equitable action to enforce the order and decision of the Board; and

6. Recommend to City Council the forfeiture of the office held by the subject with the City in accordance with Charter Sections 206, 305, and 504.

VI. Advisory Opinions

Upon written request of any public official or city employee, or without such request should a majority of the Board deem it in the public interest, the Charter Board may render advisory opinions concerning matters of home rule or enforcement of the City Charter. All advisory opinions shall be issued in writing. The Board may in its discretion publish its advisory opinions with any redactions necessary to prevent disclosure of the identity of the person who is the subject of the opinion.

An advisory opinion may be used as a defense in any subsequent investigation or prosecution, provided that the official or employee who sought the opinion did so in good faith and only to the extent material facts were not misrepresented in the request for the opinion.

Advisory opinions shall be issued as expeditiously as possible, and in no case later than 30 days following the receipt of the written request.

VII. Procedure

A. Standing

Any taxpayer, or aggrieved person may file a complaint about alleged violations of the City Charter or Administrative Code. In addition, the Charter Board may also initiate proceedings. The person signing a complaint shall: Reasonably believe in the existence of facts upon which the claim is based; and Reasonably believe that the complaint may be valid under the City Charter.

B. Filing of Complaint

1. Complaints must be submitted on forms provided by the Board. The Board shall make available this form upon request. The complaint shall state the name, job or office held by the alleged violator and a description of the facts that are alleged to constitute a violation. It must contain a notarized signature subject to the penalties of 18 Pa. C.S.A 4904 relating to unsworn falsification to authorities.

The Board shall establish a separate post office box through which to receive complaints. This post office box shall be generally accessible by the investigative officer and/or the secretary, provided that the secretary is not a Board member.

2. The complainant may withdraw his or her complaint at any time after its submission, and no further action will be taken with regard to the complaint. Such withdrawal shall be in writing and contain a notarized signature. If a preliminary investigation has already been initiated, the subject of the investigation shall immediately be notified of the withdrawal.

The individual’s withdrawal of a complaint does not preclude further action by the Charter Board on it’s own motion.

C. Determination of Jurisdiction

Each complaint filed with the Board shall immediately be directed to and preliminarily reviewed by an investigating officer appointed by the Board (the “Officer”) to determine whether the complaint falls within the jurisdiction of the Board. The aforesaid determination shall be made within seven (7) days of the filing of the complaint. If the Officer determines that the Board does not have jurisdiction over the matter underlying the complaint, the complainant will be notified and no further action will be taken with regard to the complaint. If, however the Officer determines that the complaint falls within the jurisdiction of the Board, the Officer shall authorize a preliminary investigation.

Upon a determination that the complaint falls within the jurisdiction of the Board, the officer shall also immediately notify the Board, who shall attempt an informal resolution of the issue within 30 days of the receipt of the complaint.

D. Preliminary Investigation

1. The preliminary investigation shall be initiated and conducted at the sole discretion of the Officer. If the Officer, in his/her discretion, finds that the violations, as alleged in the complaint, would, if proved, constitute a “de minimis” infraction, he/she may decline to initiate a preliminary investigation and dismiss the complaint, if to do so would be in the best interest of the citizens of the City of Reading.

2. At the onset of the preliminary investigation, the Officer shall notify both the complainant and the subject of the investigation of the filing of the complaint, the nature of the same and the initiation of a preliminary investigation.

3. The preliminary investigation shall be completed within thirty (30) days of the Officer’s finding of jurisdiction.

4. If, at any time during the preliminary investigation, an extension is necessary and justified, the Officer shall have one fifteen (15) day extension. The Officer shall notify both the complainant and the subject of the investigation of each such extension.

5. At the conclusion of the preliminary investigation, the Officer shall determine whether there may exist facts to support the complaint. If the inquiry fails to establish such facts, the Officer shall dismiss the complaint and notify both the complainant and the subject of the complaint of the dismissal of the complaint. If, however, at the conclusion of the preliminary investigation the Officer determines that there may exist facts to support the complaint, the Officer shall authorize a full investigation.

E. Full Investigation

If preliminary investigation uncovers facts to support the complaint, the Officer shall authorize a full investigation. The complainant and the subject of the investigation shall be notified within three (3) days of the initiation of a full investigation and the subject shall be notified of the identity of the complainant. Until the investigation is concluded or terminated, the Officer will notify both the complainant and the subject of the investigation of the status of the investigation at least every forty-five (45) days. Within ninety (90) days of the initiation of the full investigation, the Officer must either terminate the investigation or issue a findings report to the subject.

F. Findings Report

The findings report shall set forth the pertinent findings of fact as determined by the Officer. The Officer shall deliver the findings of fact to the complainant and the subject of the investigation. The subject of the investigation may, within fifteen (15) days of the report, request an evidentiary hearing, unless one fifteen (15) day extension is granted by the Officer. When the Officer receives such a request, the Officer shall immediately notify the Board of the request for a hearing, and the names of the parties involved. The Board shall upon receipt of such notice engage two attorneys: the Investigative officer to present facts in support of the complaint; and the Board solicitor to advise the Board in matters related to the evidentiary hearing. (*Further legal advise is recommended to determine if this two attorney structure is sufficient. Compare Revised code of Ethics Draft Section 9E)

G. Evidentiary Hearing

1. Timing

An evidentiary hearing must be held within 45 days of the filing of a request for same.

2. Procedure

The subject of the investigation shall have reasonable access to any evidence intended to be used at a hearing. The subject of the investigation shall have the opportunity to be represented by counsel and to subpoena witnesses, present evidence, cross examine witnesses against him/her, submit argument and shall be entitled to exercise all rights of confrontation and the like afforded him/her by the United States Constitution and the Pennsylvania Constitution.

3. Closed Hearing

The hearing shall be closed to the public unless the subject requests an open hearing in writing to the Board at least five (5) days before the hearing.

H. Decision by the Board: Final Order

1. At the conclusion of the evidentiary hearing, the Board shall decide by majority vote of those members present whether the evidence supports a determination that the subject of the complaint violated provision(s) of either the Charter or the Administrative Code

If the subject of the complaint does not request an evidentiary hearing, the Board shall decide by a majority vote of thse present whether the findings report supports a determination that the subject of the complaint violated provision (s) of either the Charter or Administrative Code. Such a decision by the Board shall be made within 60 days of the issuance of the findings report.

2. Upon reaching a determination on the complaint, the Board shall issue a final order within 20 days. A copy of said order shall be immediately delivered to both the complainant and the subject of the complaint.

All final orders of the Board must be issued no later than 240 days from the receipt of the complaint.

I. Right to Appeal

Any person aggrieved by an adjudication of the Charter Board who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals pursuant to Title 42 (relating to judiciary and judicial procedure).

All such appeals shall be conducted in accordance with Local Agency Law, 2 Pa. C.S.A. 751-754.

J. Protection of Complainant

No person may be penalized, nor any employee of the City be discharged, suffer change in his/her official rank, grade, or compensation, denied a promotion, or threatened, for a good faith filing of a complaint with the Board, or providing information or testifying in any Board proceeding.

K. Costs of Charter Entrocement

Any person who prevails in any legal action against the City, its officers or agents to enforce this Charter or the Administrative Code pursuant to it, shall be entitled to recover all reasonable attorney’s fees and costs incurred in such action.

VIII. Other Provisions

A. Confidentiality of Board Information

(*Further legal advice is recommended to determine whether a provision similar to Revised Code of Ethics Draft Section 10 is necessary or appropriate)

B. Wrongful use of Charter Board

1. Complaints directed to the Board must be based on fact and a reasonable belief of a Charter violation. Wrongful use of the Charter Board is prohibited and any person engaged in such conduct may be subject to penalties as set forth in Section V.

2. Wrongful use of the Charter Board is defined as either:

a) Filing an unfounded, frivolous or false complaint. A complaint is unfounded, frivolous or false if it is filed in a grossly negligent manner without basis in law or fact and was made for a purpose other than reporting a violation of the Charter or Administrative code.

A person has not filed a frivolous complaint if he/she reasonably believes that facts exist to support the claim, and either reasonably believes that under those facts the complaint is valid or acts upon the advice of counsel sought in good faith and given after full disclosure of all relevant facts within his/her knowledge and information; or

b) Publicly disclosing or causing to be disclosed information regarding the status of proceedings before the Board and facts underlying a complaint before the Board, including the identity of persons involved and that a complaint has been filed.

IX. Educational Duties of the Charter Board

The educational duties of the Charter Board are two-fold:

1. It shall direct and administer, with professional assistance, the required orientation of all elected City officials at the commencement of their terms.

2. It shall, proactively and on an ongoing basis, educate the public and members of City government as to their rights, duties and obligations under the City Charter and Administrative Code.

A. Orientation of Elected City Officials

1. A basic orientation course shall provide comprehensive Information on Home Rule Law, the City Charter, the City Administrative Code, and the City Ethics Code. Other topics to be included in the course are: the impact of the Pennsylvania Constitution and other pertinent legal statutes on City government; a review of the City budget, including all City employees’ labor agreements; and Roberts Rules of Order.

This course shall be directed and administered by the Charter Board, with assistance from the Pennsylvania Department of Community and Economic Development, the State and County Bar Associations, the Ethics Board, and any other resources the Charter Board deems appropriate.

2. Any elected official who, in the determination of the Charter Board, completes this course within four months of their initial full term will receive a bonus of $250.00.

3. City Council shall provide sufficient funds to ensure a thorough and professional orientation.

B. Educating the Public and Members of City Government

1. Educating the public and members of City government about their rights, duties and obligations promotes involvement and participation for more effective and efficient government

The Charter Board, with the assistance of resources deemed appropriate by the Board, shall conduct these educational programs in various formats. Educational information can be disseminated in a variety of formats – public meetings, printed materials such as inserts in tax and water bills; handbooks; web site; community newsletter; interactive local television programming.

2. Funds shall be made available to the Charter Board for the ongoing educational program of the public and members of City government.