The Honorable v. Spencer, Mayor of the City of Reading v. City of Reading Charter Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Honorable Vaughn D. Spencer, :

Mayor of the City of Reading :

:

v. : No. 1865 C.D. 2013

: Argued: May 13, 2014

City of Reading Charter Board, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION

BY JUDGE LEAVITT FILED: August 8, 2014

The City of Reading Charter Board (Charter Board) appeals an order

of the Court of Common Pleas of Berks County (trial court) that set aside the

Charter Board’s imposition of sanctions upon The Honorable Vaughn D. Spencer,

Mayor of the City of Reading, for performing the duties of the City’s Managing

Director at a time that position was vacant. The Charter Board claims the trial

court did not apply the proper standard of review; erred by substituting its own

judgment for that of the Charter Board; and misconstrued an advisory opinion of

the Charter Board. Mayor Spencer has filed a motion to quash, asserting the

Charter Board lacks standing to appeal. We deny Mayor Spencer’s motion to

quash and affirm the trial court.

Background

The City of Reading is governed by a Home Rule Charter. The chief

executive is the Mayor, who is vested with the “executive, administrative, and law

enforcement powers of the City … [and] shall control and be accountable for the

executive branch of City government[.]” CHARTER FOR THE CITY OF READING,

COMMONWEALTH OF PENNSYLVANIA (2010) §301 (Charter); Reproduced Record at

119a (R.R. ___). The Charter also established the position of Managing Director,

who serves as the City’s chief administrative officer. CHARTER §406; R.R. 125a.

The Managing Director reports to the Mayor and “may be removed from office by

the Mayor at any time, without cause.” CHARTER §404(a); R.R. 124a.

On January 2, 2012, Mayor Spencer took office. At that time, Carl

Geffken served as Managing Director. Geffken tendered his resignation effective

March 15, 2012. At a City Council meeting on March 12th, the Council inquired of

the Mayor who would be performing Geffken’s Managing Director duties until the

position was filled. The Mayor responded that he would assume responsibility for

those duties in the interim. None of the Council members objected to the Mayor’s

response.

Thereafter, Mayor Spencer nominated Scott Hoh to be Managing

Director. On April 2, 2012, City Council rejected Hoh’s appointment. From

March 15th through July 4th, when the City did not have a Managing Director,

Mayor Spencer performed the Managing Director’s job duties. The Mayor did not

seek compensation for performing the Managing Director duties; he was paid only

the compensation to which he was entitled as Mayor. On May 29, 2012, City

Council confirmed Carole Snyder as the new Managing Director. Her effective

date of hire was July 5, 2012.

On June 18, 2012, the Charter Board received a complaint from

Randy Corcoran, a City taxpayer and member of City Council, challenging the

actions taken by Mayor Spencer while acting as Managing Director. The Charter

2

Board’s investigative officer, David Brennen, investigated the complaint and

concluded that the Mayor had violated the Charter and the City’s Administrative

Code by doing the work of both positions simultaneously. The Mayor requested

an evidentiary hearing, which was held before the Charter Board.

The essential facts were not in dispute. Mayor Spencer admitted that

he acted as Mayor and Managing Director from March 15th through July 4, 2012.

As such, he performed certain administrative tasks of a Managing Director, such as

issuing directives relating to non-exempt employees, the purchase of professional

services and the transfer of City funds. Under the Charter, the Mayor supervises

the Managing Director, but the Charter does not extend this supervisory authority

to the point that the Mayor can actually serve as Managing Director. Mayor

Spencer asserted that doing the work of both positions simultaneously was not

prohibited by the Charter or the City’s Administrative Code. Further, he had to do

the duties of the Managing Director position because the Charter did not authorize

the appointment of a Temporary Managing Director during the time period that he

acted as Managing Director. He based this conclusion on the Charter Board’s

Advisory Opinion No. 22, issued on November 18, 2010.

Following the hearing, the Charter Board concluded that the Charter

and the Administrative Code require that the offices of Mayor and Managing

Director be separate and that the Mayor “impermissibly took the power, mantel

[sic] and authority of the Managing Director.” Charter Board Final Opinion and

Order at 27; R.R. 590a. Specifically, the Charter Board concluded that Mayor

Spencer violated Section 308(a), (f), (g), (h), and (i) of the Charter1 by combining

1

Section 308 provides, in relevant part:

The Mayor shall have the following powers and duties:

(Footnote continued on the next page . . .)

3

the power, person, and the offices of Mayor and Managing Director; Section

406(3) of the Charter2 by exercising the duties conferred on the Managing

Director; and Section 401 of the Charter by not appointing a Temporary Managing

Director after City Council refused to confirm Hoh. Section 401 of the Charter

provides, in relevant part:

(a) Within ninety (90) days of taking office, the Mayor, with

the approval of City Council, shall appoint a Managing

Director for an indefinite term, subject to at least a biennial

review, and fix the Managing Director’s compensation.

The Managing Director need not be a resident of the City

at the time of appointment, but after appointment shall

(continued . . .)

(a) Execute, enforce, and obey the ordinances of the City and laws of the

Commonwealth of Pennsylvania and the United States of America.

***

(f) Be responsible for the hiring, with the approval of Council, of the City

Managing Director.

(g) Direct and supervise the administration of all departments, offices and

agencies of the City, except as otherwise provided by the Charter or by law.

(h) Ensure that all laws, provisions of this Charter and acts of City Council,

subject to enforcement by the Managing Director, are faithfully executed by

the Managing Director.

(i) Be responsible for the establishment and development of administrative

policy to be implemented by the Managing Director.

CHARTER §308(a), (f), (g), (h) and (i); R.R. 121a-122a.

2

Section 406(3) provides, in relevant part:

The Managing Director shall be the chief administrative officer of the City,

responsible to the Mayor for the administration of all City affairs placed in the

Managing Director’s charge pursuant to this Charter. In addition to other powers

and duties prescribed by this Charter, the Managing Director shall:

***

(3) Appoint, suspend, or remove any City employee, except as

otherwise provided by this Charter or by law[.]

CHARTER §406(3); R.R. 125a.

4

reside in the City. The Managing Director shall establish

such City residency within twelve (12) months of being

appointed.

***

(d) In the event that the position of Managing Director cannot

be filled by the Mayor, the Mayor may appoint a

Temporary Managing Director for a period of time not to

exceed ninety (90) days. During this period of time, the

Mayor shall continue to use all available means to fill the

position.

(e) In the event that Mayor has not filled the position of

Managing Director within one hundred eighty (180) days

of taking office, City Council shall, within ninety (90) days

thereafter, hire a Managing Director. Any person hired by

City Council shall hold the qualifications for said position

prescribed by this Charter. The Mayor shall not have the

power of veto over any candidate hired by City Council in

accordance with the provisions of this Charter.

CHARTER §401(a), (d) and (e); R.R. 123a-124a. In short, the Charter Board held

that because the Charter authorized the appointment of a Temporary Managing

Director, it was improper for Mayor Spencer to have performed those duties

himself.

The Charter Board also cited Section 301 of the Charter, which

establishes the office of Mayor, and Section 401 of the Charter, which establishes

the office of Managing Director. The Charter Board reasoned that because the

Charter establishes two separate offices, they must be occupied by two different

persons. See also Section 311 of the Charter (the Mayor “shall appoint a full-time

officer of the City who shall have the title of Managing Director….”); R.R. 123a.

Finally, the Charter Board considered the Administrative Code of the

City of Reading. Section 1-141 of the Administrative Code authorizes the

Managing Director to issue employee “memoranda” or to reassign an employee to

5

another position. Likewise, Section 1-181 of the Administrative Code makes the

Managing Director the administrator of the department of finance. The Charter

does not authorize the Mayor to reassign employees or to transfer funds. The

Charter Board concluded that Mayor Spencer violated these provisions by taking

these actions in the name of the Managing Director.

Based on the above findings, the Charter Board imposed a public

censure on Mayor Spencer; an administrative fine of $1,000 to defray the cost of

the investigation; and a $4,000 fine for violating the above provisions of the

Charter and the Administrative Code. The $4,000 fine was based on the number of

violations, the seriousness of the violations, and the willful and intentional conduct

of the Mayor.

Mayor Spencer appealed to the trial court, arguing that the Charter

Board erred in finding that he violated the Charter and Administrative Code and in

failing to consider the Mayor’s defense that he justifiably relied on the Charter

Board’s Advisory Opinion No. 22 when he performed the duties of Managing

Director.3 The trial court agreed, holding that the Charter Board capriciously

3

Article VI of the City of Reading Charter Board Ordinance, which is Appendix A of the

Charter, provides as follows:

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 Board

may render advisory opinions concerning matters of home rule or enforcement of

the City Charter. All advisory opinions shall be issued in writing and may include

any redactions necessary to prevent disclosure of the identity of the person who is

a 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.

(Footnote continued on the next page . . .)

6

disregarded the defense provided by Advisory Opinion No. 22. The trial court held

that

Advisory Opinion No. 22 makes clear the Charter is being

interpreted by the Board to mean the appointment of a

Temporary Managing Director is permissive, but can only

occur after the first 90 days if there is not a filling of that

vacancy.

Trial Court opinion at 5. In this case, Geffken resigned on March 15, 2012.

According to the terms of Advisory Opinion No. 22, the Mayor could not appoint a

Temporary Managing Director before June 15, 2012. All of the actions found by

the Charter Board to have violated the Charter and the Administrative Code

occurred during this initial 90-day period.4 Therefore, the trial court refused “to

adhere to the notion that [the Mayor] violated the Charter when the actions he

undertook were in direct reliance upon a clear Advisory Opinion approved by the

Charter Board.” Trial Court opinion at 6. Accordingly, the trial court reversed and

vacated the final opinion and order of the Charter Board. The Charter Board now

appeals.

On appeal, the Charter Board argues that: (1) the trial court did not

apply the proper standard of review; (2) the trial court erred by substituting its own

judgment for the Board’s and relying upon an incorrect interpretation of Advisory

Opinion No. 22; (3) the Board’s adjudication was supported by substantial

evidence; (4) the trial court erred in considering matters outside the record; and (5)

(continued . . .)

CHARTER, APPENDIX A; R.R. 176a. The Charter Board agrees that an advisory opinion may be

used as a defense.

4

The Charter Board does not challenge this conclusion.

7

the trial court erred in concluding that the Board could not assess a fine against

Mayor Spencer.

Mayor Spencer has filed a motion to quash the instant appeal, arguing

that the Charter Board, an adjudicatory tribunal, lacks standing to appeal a reversal

of its adjudication.

Motion to Quash Appeal

We begin with the motion to quash. Mayor Spencer argues that the

Charter Board lacks standing to appeal for two reasons. First, as an adjudicatory

tribunal, the Charter Board could not be aggrieved by the trial court’s order

reversing its adjudication, any more than a court of law can be aggrieved by an

appellate court reversal of its decision. Second, any standing conferred upon the

Charter Board by reason of its prosecutorial function is destroyed because this

appeal is being pursued by the adjudicative side of the Board, which, in turn,

improperly commingles the Board’s prosecutorial and adjudicative functions. We

consider these two standing arguments seriatim.

In support of his first standing argument, Mayor Spencer cites to

Appeal of Board of Adjustment, Lansdowne Borough, 170 A. 867 (Pa. 1934). In

Lansdowne, the board of adjustment denied an application for a special exception.

The landowners appealed to the trial court, and it reversed the decision of the board

of adjustment. The board of adjustment appealed the trial court’s order. The

Pennsylvania Supreme Court held that the board of adjustment was an adjudicatory

tribunal, not an agency, and, thus, could not be aggrieved by the trial court’s order.

Accordingly, it lacked standing to appeal.

The Charter Board counters that Lansdowne is not applicable because

the Charter Board has been assigned functions that give it a stake in the outcome of

8

its decisions. The Charter Board claims to have been modeled after the State

Ethics Commission, which was created to administer, prosecute, enforce, and

adjudicate cases under the Public Official and Employee Ethics Act, 65 Pa. C.S.

§§1101-1113. Specifically, pursuant to the Charter Board Ordinance, the Charter

Board has the power and duty to “[h]ear and decide all complaints alleging

violations of the Charter and Administrative Code.” CHARTER BOARD ORDINANCE

§III.A.(1); R.R. 163a. Further, the Charter Board may impose penalties, initiate

preliminary investigations, issue subpoenas, adopt rules and regulations, issue

advisory opinions, enforce and interpret the City’s Home Rule Charter and “have

all other powers necessary” to effectuate the Charter. CHARTER BOARD

ORDINANCE §§II and III.A.(1)-(7); R.R. 160a-163a. As such, the Charter Board’s

interest in appeals from its decisions is direct and substantial.

The basic principle of standing is that a person is not adversely

affected or aggrieved by a judicial determination unless he has a direct and

substantial interest in the matter. William Penn Parking Garage, Inc. v. City of

Pittsburgh, 346 A.2d 269, 280 (Pa. 1975). In the context of an agency, “when the

legislature statutorily invests an agency with certain functions, duties and

responsibilities, the agency has a legislatively conferred interest in such matters.”

Pennsylvania Game Commission v. Department of Environmental Resources, 555

A.2d 812, 815 (Pa. 1989). Here, the Charter Board argues that its interest is direct

and substantial because the trial court’s ruling directly conflicts with its ability to

enforce and interpret the Charter. If the Charter Board is unable to appeal a

reversal, its authority as guardian of the Charter is compromised.

We agree with the Charter Board that its functions are different from

those of a zoning board, i.e., the tribunal held to have lacked standing in

9

Lansdowne. The Charter was adopted pursuant to the Home Rule Charter and

Optional Plans Law, 53 Pa. C.S. §2941. A home rule charter has the force and

status of an enactment of the legislature. In re Addison, 122 A.2d 272 (Pa. 1956).

Where an agency has been given “certain functions, duties and responsibilities” it

is deemed to have been “conferred” an interest, absent statutory language to the

contrary. Pennsylvania Game Commission, 555 A.2d at 815. Through direct

democracy, the citizens of the City enacted the Charter Board’s enabling

legislation, i.e., Amendment I of the Charter. The Charter confers upon the

Charter Board the power and duty to enforce and interpret the Charter, adopt

necessary rules and regulations, and conduct investigations. The Charter does not

limit the Charter Board’s function to that of adjudicating disputes. Thus, the

Charter Board has a direct and substantial interest in this appeal.5

5

In his brief to this Court, Mayor Spencer argues that the Charter Board lacks authority to hear

any cases and, thus, lacked jurisdiction to adjudicate this case. The Mayor admits that he did not

raise this issue to the trial court, but argues it is not waived because it involves subject matter

jurisdiction.

The Charter Board counters that Amendment I, Section 2(b) of the Charter gives it

jurisdiction to

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 Council shall appropriate sufficient funds to enable the Board to

perform the duties assigned to it, including expenses for independent counsel and

other necessary staff.

CHARTER, AMENDMENT I, §2(b); R.R. 107a-08a. Accordingly, the Charter Board argues that it

has authority to hear this case and if the Mayor wanted to challenge this authority he needed to

raise that issue before the trial court. We agree.

A home rule charter has the force and status of an enactment of the legislature. In re

Addison, 122 A.2d 272 (Pa. 1956). As such, it is presumed constitutional and the burden of

proving otherwise rests on the party alleging unconstitutionality. Cali v. City of Philadelphia,

(Footnote continued on the next page . . .)

10

In his second standing argument, Mayor Spencer cites our Supreme

Court’s seminal decision in Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa.

1992), which held that the right to a fair and impartial tribunal prohibits the

commingling of prosecutorial and adjudicatory functions. Mayor Spencer argues

that the appeal to this Court is being prosecuted by the Charter Board’s solicitor,

who advised the Charter Board in the instant adjudication. The solicitor appeared

at the evidentiary hearing, giving advice to the Charter Board outside the presence

of counsel for both parties. Mayor Spencer contends that the Charter Board’s

appeal violates Lyness because it impermissibly commingles adjudicatory and

prosecutorial functions of the Charter Board.

In Lyness, the agency in question was a professional licensing board

whose members determined there was sufficient evidence to initiate a disciplinary

action against a physician and, then, later adjudicated the merits of the action

brought against the physician. The Lyness court was concerned with the licensee’s

right to a fair and impartial tribunal, and its focus was on the hearing before the

administrative agency. Here, Mayor Spencer does not claim that the Charter

(continued . . .)

177 A.2d 824 (Pa. 1962). Constitutional challenges do not need to be raised at the administrative

agency level, as agencies do not decide constitutional questions. See 2 Pa. C.S. §753. However,

constitutional challenges must be made to the first court to hear the appeal. Lehman v.

Pennsylvania State Police, 839 A.2d 265, 276 (Pa. 2003).

Although Mayor Spencer attempts to categorize this issue as one of subject matter

jurisdiction in order to avoid waiver, it is really a challenge to the constitutionality of the Charter

provision giving the Board the authority to decide, inter alia, the complaint against Mayor

Spencer. The Mayor needed to challenge the constitutionality of the Charter before the trial

court. Because he failed to do so, it is waived. Newcomer v. Civil Service Commission of

Fairchance Borough, 515 A.2d 108, 110 (Pa. Cmwlth. 1986) (constitutional challenge not raised

before the trial court is waived on appeal to this Court).

11

Board’s prosecutorial and adjudicatory functions were not properly separated

during the investigation and hearing phase of the proceeding. Lyness is inapposite.

Accordingly, we deny Mayor Spencer’s motion to quash the appeal.

Charter Board Appeal

The Charter Board’s first issue on appeal is whether the trial court

applied the proper standard of review. The Charter Board argues that the trial

court recited the correct standard of review under Section 754(b) of the Local

Agency Law,6 but then erred by concluding that the Charter Board capriciously

disregarded the evidence. The Charter Board contends that the latter occurs where

“the fact-finder deliberately ignores relevant, competent evidence.” Capasso v.

Workers’ Compensation Appeal Board (RACS Associates, Inc.), 851 A.2d 997,

1002 (Pa. Cmwlth. 2004), and that did not occur in this case. We disagree.

The Charter Board’s finding that Mayor Spencer violated the Charter

by taking on “the power, mantel [sic] and authority of the Managing Director,”

Charter Board Final Opinion and Order at 27, hinged on the Charter Board’s

determination that “[t]he Mayor had an option, which he did not exercise” to

“appoint a Temporary Managing Director” pursuant to the Charter. Id. at 28. The

trial court found that the Mayor properly relied upon the Charter Board’s Advisory

6

Section 754(b) states that where a complete record was developed before the local agency and

the trial court does not take additional evidence,

the [trial] court shall affirm the adjudication unless it shall find that the

adjudication is in violation of the constitutional rights of the appellant, or is not in

accordance with the law, or that the provisions of [local agency practice and

procedure have been violated], or that any finding of fact made by the agency and

necessary to support its adjudication is not supported by substantial evidence.

2 Pa. C.S. §754(b) (emphasis added).

12

Opinion No. 22, which stated, explicitly, that the Mayor could not exercise this

appointment power until 90 days had passed following the first day of vacancy in

the Managing Director position. There is no dispute that an advisory opinion is a

valid “defense” to prosecutions brought by the Charter Board. CHARTER BOARD

ORDINANCE ARTICLE VI, APPENDIX A OF THE CHARTER. We agree with the trial

court that the Charter Board capriciously disregarded the Advisory Opinion by

simply stating in a footnote that it was irrelevant, with no analysis.

In its second issue, the Charter Board argues that the trial court erred

by substituting its own judgment for that of the Board in rejecting the Charter

Board’s interpretation of its own Advisory Opinion No. 22.7 Advisory Board

Opinion No. 22 states, in relevant part, as follows:

The time limitations and appointment powers of Section 401(a)

and 401(d) [of the Charter] must be read in pari materia.

Importantly, the clear language of Section 401(d) does not

empower the Mayor to appoint a Temporary Managing Director

until the Mayor cannot fill the position of Managing Director

under Section 401(a) and Section 401(a) provides that during

the first 90 days of taking office the Mayor “shall appoint a

Managing Director.” Section 401(a) is silent regarding an

appointment of a Temporary Managing Director during the first

90 days of a Mayor’s term.

Therefore, without any hesitation, the Charter clearly provides

that the appointment of the Temporary Managing Director shall

not exceed 90 days. Charter § 401(d). The time line mandated

by the Charter is strict. Within 90 days of taking office the

Mayor shall appoint a Managing Director. Charter § 401(a).

7

The Charter Board argues that the trial court could not rely upon the Advisory Opinion at all

because it is not law. However, neither the trial court nor the Mayor has suggested that the

Advisory Opinion has the force of law or that the Charter Board is bound by it. In any event, the

Charter Board itself concedes that the Mayor could invoke an Advisory Opinion as a defense

pursuant to Charter Board Ordinance Article VI, Appendix A of the Charter.

13

After that first 90 day period, if the Mayor is unsuccessful in

making that appointment, the Mayor may then appoint a

Temporary Managing Director “for a period of time not to

exceed ninety (90) days.” Charter § 401(d). In the event that

the position of Managing Director is not filled by the Mayor

within 180 days, City Council must hire a Managing Director

within 90 days thereafter. Charter § 401(e). Thus, the Charter

mandates a maximum period of time of 270 days until a

Managing Director must be hired or a vacancy in the position of

Managing Director must be filled under Section 403 [which

provides that Section 401 applies when a vacancy occurs].

Advisory Opinion No. 22 at 4, available at

http://www.readingpa.gov/sites/default/files/boards/charter_board/advisory_opinio

ns/Adv_Op_22_Signed.pdf.

The Charter Board asserts that the trial court misconstrued this

sentence in the second paragraph of the Advisory Opinion: “After that first 90 day

period, if the Mayor is unsuccessful in making that appointment, the Mayor may

then appoint a Temporary Managing Director.” The Charter Board contends that,

when read in context, the purpose of this sentence is to establish the maximum

term of service for a Temporary Managing Director. It does not mean, as the trial

court reasoned, that the Mayor may not appoint a Managing Director in the first 90

days following a vacancy.

The Advisory Opinion was issued to address the maximum period of

time a Temporary Managing Director may serve and how such an appointment

impacts City Council’s ability to fill the position. In addressing these issues, the

Charter Board examined Section 401 of the Charter and identified three 90-day

periods. In the initial 90-day period, the Mayor has the power to appoint a

Managing Director with the approval of City Council. In the second 90-day

period, the Mayor has the power to appoint a Temporary Managing Director

14

without the need for City Council approval. In the final 90-day period, City

Council will hire the Managing Director without the need for the Mayor’s

approval. It is irrelevant whether the Charter Board’s analysis of Section 401 in

the Advisory Opinion was correct. Mayor Spencer reasonably relied on the

Advisory Opinion, and the trial court’s interpretation of the Advisory Opinion to

support Mayor Spencer’s position was also reasonable. Thus, the trial court did

not err in holding that the Advisory Opinion provided a valid defense to the

charges against Mayor Spencer.

In its third issue, the Charter Board argues that its adjudication was

supported by substantial evidence. It found that the Charter created the offices of

Mayor and Managing Director to be separate positions. Therefore, Mayor Spencer

violated numerous sections of the Charter and the Administrative Code by

performing the duties of both positions. We disagree.

To begin, none of the provisions cited by the Charter Board

specifically prohibit the Mayor from performing both jobs during a vacancy in the

Managing Director position. They are general provisions setting forth the

respective duties of a Mayor and a Managing Director. The Charter Board’s

argument is premised on its conclusion that Mayor Spencer had the authority to

appoint a Temporary Managing Director during the first 90 days of the vacancy

and its argument that his reliance on Advisory Opinion No. 22 was misplaced. As

noted above, these claims lack merit.8 It also bears noting that no member of City

8

In its brief, the Charter Board asserts that the Mayor did not possess the “qualifications” to be

the Temporary Managing Director. This was not raised as a specific allegation of error. Section

401(b) of the Charter requires the Managing Director to have a college degree in public or

business administration and several years of executive or administrative experience. However,

this requirement is specifically set forth in the Charter for “candidates” for the office of

(Footnote continued on the next page . . .)

15

Council objected to Mayor Spencer performing both positions during the period of

time he was doing so.

In its final issue, the Charter Board contends that the trial court erred

in considering matters outside the record. During the hearing, the trial court

observed that it was inappropriate to expend City funds on this litigation because

no harm was alleged to have occurred. Further, given that the Managing Director

serves at the Mayor’s pleasure and reports to the Mayor, the trial court perceived

no reason why Mayor Spencer could not temporarily perform the duties of

Managing Director himself. The trial court opined that the Charter Board was

politically motivated in filing its complaint against the Mayor and imposing

sanctions. Mayor Spencer points out that this was the second time the Charter

Board had come before the trial court attempting to sanction him. In both cases the

complaints were filed by a City Council member who was a political opponent of

Mayor Spencer.

In its appeal to this Court, the Charter Board does not cite any

authority for reversing the trial court’s order based upon the above-referenced

comments. The Charter Board also did not object to the trial court’s statements at

the hearing or request recusal. In any event, the trial court did not decide the

matter based on its comments, which were obiter dicta. The trial court decided the

case on the facts and law presented. Thus, no error has been established.9

(continued . . .)

Managing Director and the “hiring of a replacement” by City Council. CHARTER §§401(b) and

(e), 402; R.R.124a. The Charter is silent regarding whether a Temporary Managing Director

appointed by the Mayor is also subject to these qualifications. CHARTER §401(d); R.R. 124a.

9

The Charter Board’s fifth claim is that the monetary amounts of the fines imposed were within

the guidelines of the Charter. Because we agree with the trial court that Mayor Spencer

established a proper defense to his actions, we need not address this issue.

16

Conclusion

For all of the foregoing reasons, Mayor Spencer’s motion to quash is

denied and the order of the trial court is affirmed.

______________________________

MARY HANNAH LEAVITT, Judge

Judge Leadbetter did not participate in the decision in this case.

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Honorable Vaughn D. Spencer, :

Mayor of the City of Reading :

:

v. : No. 1865 C.D. 2013

:

City of Reading Charter Board, :

Appellant :

ORDER

AND NOW, this 8th day of August, 2014, the Motion to Quash filed

by The Honorable Vaughn D. Spencer is DENIED and the order of the Court of

Common Pleas of Berks County, dated September 17, 2013, is AFFIRMED.

______________________________

MARY HANNAH LEAVITT, Judge