Reducing the Size of Elected Boards

Submitted by:

Vicki L. Beatty, Esquire

Campbell Durrant Beatty Palombo & Miller, P.C.
555 Grant Street, Suite 310
Pittsburgh, PA 15219

           Questions frequently arise regarding the ability of a municipality to modify the number of elected members of a governing body or the manner in which the governing body is elected.  As with most questions involving local government in Pennsylvania, the answers to these questions are dependent upon the form of government.  It would simply be too easy for there to be a universal answer to these types of questions. 

             Despite the differences in the various codes governing the election of members of governing bodies, there are some overriding considerations. 

             The Municipal Reapportionment Act, 53 Pa.C.S.A. § 904, requires municipalities having a governing body not entirely elected at-large to be reapportioned into districts by the governing body within the year following the completion of the Federal Census.  Under the Act, the districts are to be composed of “compact and contiguous territory as nearly equal in population as practicable.”  If a governing body fails to conduct a reapportionment, one or more electors who are residents of the municipality may petition the Court of Common Pleas and the Court may then reapportion the municipality.  The Act also provides a mechanism for residents of the municipality to contest a reapportionment by filing a petition with the Court of Common Pleas signed by at least ten electors if the reapportionment does not meet the requirements of the Act.  It is certainly possible that the reapportionment process could impact the number of elected officers based on the number of wards resulting from the reapportionment.

             Similarly, the Home Rule Charter and Optional Plans Law, 53 Pa.C.S.A. § 2901, et seq., sets forth a mechanism by which a municipality may change its form of government and thereby also change the number and composition of its elected body.  This is a lengthy and complicated process that is beyond the scope of this article.

             Certain municipal codes contain additional mechanisms for the establishment or alteration of the number of members of the governing body.  These codes will be discussed separately: 

Borough Code

 

The Borough Code contains the most comprehensive guidelines for adjustment of the number of elected officials.  In fact, sorting out the various provisions could require graph paper and a pencil with a good eraser.  Without getting into the nitty gritty of each type of modification, the general standards for the number and election of Borough Council members are as follows:

1.         Boroughs not divided into wards are to have seven members of Council except in Boroughs of less than 3,000 residents, where the number of Council members may be reduced to five or three.  53 P.S. § 45806.  The Borough Code permits a petition to be filed with the Court of Common Pleas signed by at least five percent of the registered electors within a Borough to force the reduction in the number of Council members in this situation.  53 P.S. § 45818.  Note that if a Borough complies with the Municipal Reapportionment Act, there should not be a need for that type of petition. 

2.         Boroughs divided into wards may have up to two Council members per ward, subject to certain exceptions.  53 P.S. § 806.  No Borough is to be divided or re-divided into more than thirteen wards.

The Borough Code then sets forth two mechanisms by which an existing structure can be altered.  The first situation would involve the reduction in the number of Council members per ward.  The second situation would involve actually altering the ward system.

1.         In Boroughs divided into wards where there are more than seven Council members, a petition can be filed with the Court of Common Pleas by five percent or more of the registered electors to decrease the number of Council members per ward.  Under no circumstances can the number of Council members be reduced to less than seven, unless the population has dropped below 3,000.  53 P.S. § 45815.  The Code sets forth the possible reasons for such a petition.  These include seeking a less unwieldy in size, comparability to the size of Boroughs not divided into wards, obtaining an odd number of members of Council, reducing Borough expenses and expedition of the conduct of Council meetings.  Generally these types of petitions would be filed where residents were seeking to reduce the number of Council members from two per ward down to one per ward.  The Borough Code contemplates that at-large seats may need to be created to ensure that the Borough retains at least seven Council members, e.g. where there are less than seven wards, or to obtain an odd number of Council members, e.g. where there are eight wards.  Upon the filing of such a petition, the Court of Common Pleas is to provide notice of the petition through legal advertising and a hearing is to be scheduled.  If the number of Council members is reduced, the current Council members remain in office until the end of their terms. 

2.         The other mechanism set forth in the Borough Code relates to the authority of the Courts to divide Boroughs into wards, to erect new wards out of two or more existing wards, to consolidate two or more wards into one, to divide one ward into two or more, to alter lines or even completely abolish all wards.  53 P.S. § 45601.  Once again, five percent or more of the registered electors for the Borough may petition the Court of Common Pleas to take this type of action.  In addition, Borough Council itself may pass a resolution and initiate a petition with the Court.  If the petition will affect only certain wards, a petition can be filed by five percent of the electors in the wards to be effected.  The Court of Common Pleas then appoints three Commissioners to review the matter and report back to the Court.  The Commissioners must be non-residents and may not own property within the Boroughs.  Once the report is submitted to the Court, the results are advertised and will be adopted by the Court unless exceptions are filed within thirty days.

Under any of the alternatives for reducing the number of Council members, the incumbents would generally stay in office until the end of their term and the Borough Code sets forth a process by which new Council members are elected either by ward or at-large. 

First Class Township Code

 

            The First Class Township Code contains provisions similar to those contained in the Borough Code but not as specific as to the procedure to be utilized to modify the number of elected Commissioners. 

            In Townships not divided into wards, there are to be five at-large Township Commissioners.  53 P.S. § 55505.  In Townships having less than five wards, the number of Commissioners is set at five.  One Commissioner is to be elected from each ward and the remaining number of Commissioners are to be elected at-large.  In Townships having five or more wards, one Commissioner is to be elected from each ward.  53 P.S. § 55504. 

            The First Class Township Code contains provisions similar to the Borough Code with regard to the ability of the Court of Common Pleas to entertain a petition to divide or re-divide a Township into wards, erect wards out of two or more adjoining wards, consolidate wards, divide wards into two or more, alter the lines or boundaries of wards and cause the lines or boundaries or wards to be fixed and established.  No Township may be divided into more than fifteen wards.  53 P.S. § 55401.  In addition, no ward can be created which contains less than three hundred registered electors.  The appellate courts have recognized that the First Class Township Code allows the Court of Common Pleas to abolish all wards and require all Commissioners to be elected at-large under a theory that elimination of all wards is actually creation of one ward with all Commissioners to be elected from that ward. 

            The First Class Township Code originally contained language requiring a petition signed by at least one hundred property owners and residents of the Township to initiate a change in the ward structure.  The Court was then to appoint a three member commission to review the petition and make a recommendation to the Court.  53 P.S. § 55402.  This section of the First Class Township Code was repealed in 1978.  Since then, the appellate courts have not had an opportunity to determine whether there is any minimum number of signatures required for this type of petition.  In addition, the remaining sections of the First Class Township Code still refer to the report of the commission being made to the Court of Common Pleas, being subject to exceptions and the Court either confirming or rejecting the report.  The vast majority of litigation involving First Class Townships since 1978 have involved the Municipal Reapportionment Act and not this provision contained in the First Class Township Code. 

Second Class Township Code

 

            The Second Class Township Code is much different than the Borough Code or the First Class Township Code with regard to modifications to the number of elected supervisors.  The Second Class Township Code sets three supervisors as the minimum number to be elected.  53 P.S. § 65402.  The number of elected supervisors can be raised to five if a petition is filed by at least five percent of the electors of the Township or the Board of Supervisors adopts a resolution requesting that the question be placed on the ballot at the next municipal or general election.  If the question is approved by a majority of the electors, the additional supervisors are to be elected at the next municipal election.  The question of additional supervisors to be voted on cannot be placed on the ballot more than once in any three year period. 

            The same process can be utilized to reduce the number of supervisors from five to three.  In that case, the question cannot be voted on more than once in any five year period.  If there is reduction of the number of supervisors to three, the terms of all of the officers of the five member Board cease on the first Monday of January after the next municipal election.  The three vacancies are voted on at the next municipal election and the three candidates receiving the highest number of votes are to be elected. 

 There are certain overriding considerations to keep in mind when discussions regarding changing the number of elected officials arise.  First of all, municipalities in Pennsylvania only have the authority to take such actions which have been specifically granted by the legislature.  For this reason, unless your municipality is Home Rule or Optional Charter, you will need to refer to the applicable Code to determine how this change can be made.  None of the Codes permit an elected body to modify the number of its members unilaterally, outside of the reapportionment process.  Either the courts must be involved or the matter must be voted by the residents in Township of the Second Class. 

 There is no process for an “advisory” referendum on this type of issue.  Under Pennsylvania law, questions may be place on a ballot for only designated reasons.  Other than the process outlined above for Townships of the Second Class, this is generally not a ballot issue. 

 Other than the legal processes described, there are many factors impacting the size of an elected board.  It is safe to say that there is no one-size-fits-all solution as recognized by the Codes.