decided: June 1, 1988.
JAMES T. MALLOY, JR. ET AL., APPELLANTS
HERBERT PFUHL, JR., AND THE CITY OF JOHNSTOWN, APPELLEES
Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Herbert Pfuhl, Jr., and The City of Johnstown v. James T. Malloy, Jr., Albert M. Penska, Fern Dorian, John Williams, William Stasko, William S. Gentile, Jr., Ron R. Stevens, Anthony C. Truscello and Owen W. Wissinger, No. 1987-33.
Nicholas Banda, for appellants.
Richard J. Green, Jr., for appellees.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Colins, Palladino, McGinley and Smith. Opinion by President Judge Crumlish, Jr.
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The members of the Council of the City of Johnstown (Council)*fn1 appeal a Cambria County Common
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Pleas Court order declaring certain wage and salary ordinances*fn2 invalid. We reverse.
In 1972, the citizens of Johnstown voted to adopt a new form of local government under the Optional Third Class City Charter Law*fn3 (Charter Law) entitled Mayor-Council Plan A,*fn4 thereby replacing the previous commission scheme delineated in The Third Class City Code.*fn5
Pursuant to the transitional provisions of the Charter Law,*fn6 the Council through ordinance adopted an Administrative Code which in pertinent part established the positions and salaries of several elected and appointed officials, their employees and various other municipal service employees.*fn7 Similar wage and salary ordinances amending the Administrative Code were enacted annually from 1974 until 1986, at which time Mayor Herbert Pfuhl, Jr., vetoed the ordinances on the grounds that they illegally encroached on executive
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branch powers.*fn8 Council voted to override the veto, prompting the Mayor to seek declaratory and injunctive relief.
After hearing, the common pleas court held that:
Opinion, p. 6; emphasis in original.
The sole issue for our disposition is whether Mayor-Council Plan A, as delineated in the Charter Law, precludes Council from enacting ordinances which establish the positions and salaries of municipal employees.
We begin by examining the enabling provision of the Charter Law, Section 303,*fn9 which provides, in pertinent part:
Each city governed by an optional form of government pursuant to this act shall, subject to the provisions and limitations prescribed by this act, have full power to:
(1) Organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation;
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(2) . . . to exercise all powers of local government in such manner as its governing body may determine.
This provision vests a local government with substantial authority to regulate its own affairs but does not permit it to adopt ordinances which contravene the enabling act itself. Marshall v. Bentzel, 40 Pa. Commonwealth Ct. 273, 397 A.2d 444 (1979). Section 304*fn10 provides that the Charter Law is intended to confer the greatest power of local self-government and any specific enumeration of that power shall not be construed to limit the general description of power contained in the Charter Law. So long as Council acts within its scope of authority and does not violate any laws of the Commonwealth, its actions or policies will not be disturbed by the judiciary. Almy v. Borough of Wilkinsburg, 53 Pa. Commonwealth Ct. 46, 416 A.2d 638 (1980); City Council of Bethlehem v. Marcincin, 512 Pa. 1, 515 A.2d 1320 (1986).
In enacting the Charter Law, the General Assembly has prescribed several optional charter plans which may be adopted by cities of the third class, each of which are subject to certain restrictions and limitations. Generally, Mayor-Council Plan A provides that the legislative power of the city shall be exercised by the city council, Section 407,*fn11 while the executive power shall be exercised by the mayor. Section 411.*fn12 The mayor's authority to control personnel is found in Section 415,*fn13 which provides:
(c) Each department shall be headed by a director who shall be appointed by the mayor
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with the advice and consent of the council. . . . No member of city council shall head a department.
(d) The mayor may, in his discretion, remove any department head after notice and an opportunity to be heard. . . .
(e) . . . [D]department heads shall appoint subordinate officers and employes within their respective departments and may, with approval of the mayor, remove such officers and employes.*fn14
Mayor-Council Plan A also delineates specific budgetary procedures which require the mayor to prepare and submit a detailed recommended budget which Council may then amend prior to adoption. Sections 417, 418.*fn15 Additionally, Section 607(c) of the Charter Law,*fn16 applicable to all optional plans, specifically directs Council to fix the compensation to be paid to the controller, treasurer and department heads.
Pursuant to these provisions, Council adopted Administrative Code Section 294.06 in 1983, which states that "Personnel administration for the city, heretofore vested in council, shall be vested in the mayor, and such
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administration shall be exercised in accordance with procedures adopted by the mayor." The common pleas court found that the word "administration," as used in this ordinance, encompassed the fixing of specific numbers of employees and their specific salaries or wages and thus were matters within the mayor's executive power. We respectfully disagree.*fn17
The reasonable implication from the explicit budgetary directives contained in Section 418 and in Section 607(c) of the Charter Law is that Council ultimately determines the number and compensation of subordinate municipal employees. While Section 417 empowers the Mayor to submit a detailed budget which may include specific proposals as to the complement and salaries of all public employees, in the final analysis Council must approve these proposals and may, pursuant to Section 418, reduce or increase any budgetary items.
In this instance, the record discloses that the Mayor failed to submit a detailed proposed salary ordinance for 1987 (Reproduced Record, p. 48A), which task was then taken up by Council. Therefore, we cannot say that Council usurped the executive's prerogative when, in fact, the Mayor failed to exercise whatever prerogative was within his purview.
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It is beyond argument that Council must respect the separation of executive and legislative authority. Although in this instance Council's salary ordinance would cause several positions to be eliminated, Council did not arrogate the discretion of the executive branch to determine which individuals would be relieved of their positions. The exclusively executive functions of choosing personnel and administering the day-to-day operations of the municipal government have been left intact. Section 415; Administrative Code, Section 294.06. At the same time, the traditionally legislative function of ultimately deciding upon a budget and, thereby determining the size of government is likewise preserved. Section 418. While it is true that under Mayor-Council Plan A, the mayor has the authority to consent to any hiring or firing by department, Section 415(e), we find it a valid legislative action for Council to require departmental reductions when budgetary concerns indicate their necessity.
Finally, we note that under Johnstown's former government plan, Council was obligated to prescribe by ordinance the number, duties and compensation of the officers and employees of the city.*fn18 Because the instant salary ordinances are consistent with the former Code and do not directly conflict with Mayor-Council Plan A or the Charter Law, we hold that they are valid.
Accordingly, the decision of the common pleas court is reversed.*fn19
The order of the Cambria County Common Pleas Court, No. 1987-33 dated February 10, 1987, is reversed.