Home Rule in Pennsylvania
"Let the people think they govern, and they will be governed." - William Penn, Some Fruits of Solitude (1693).
"Honestly, I’m willing to bet a good many townships and boroughs have
public comment policies that are illegal in some way. The
reason we don’t hear about them and address them is that people accept
what they’re told by government authorities." --Valerie Burch, ACLU Attorney representing citizens of Dickinson Township, Pennsylvania, against their Township Supervisors
"There is no inalienable right to local self-government" -- Pennsylvania
Attorney General Thomas W. Corbett, Jr., Reply Brief in Support of
Application for Summary Relief, Commonwealth of PA v. East Brunswick
Township, January 31, 2008
Adoption of a new local government article to the Pennsylvania Constitution in 1968 guaranteeing the right of all Pennsylvania counties and municipalities to adopt home rule charters and exercise home rule powers was hailed as a watershed in the history of local government in Pennsylvania. Opponents warned of chancy experiments in untested legal areas. According to the Governor's Center for Local Government, home rule has proven to be an effective tool for reorganizing local governments to increase effectiveness and citizen participation, and has enabled a modest local initiative in procedural and substantive matters. But home rule has not been fully tested as a tool to revolutionize local democratic decision-making, although it has the potential to open up a path to real community self-governance.
Meaning of Home Rule
The basic concept of home rule is relatively simple. The authority to act in municipal affairs is transferred from state law, as set forth by the General Assembly, to a local charter, adopted and amended by the voters.
Home rule means shifting the responsibility for local governance from the State Legislature to the local community. A county, borough or township choosing home rule can tailor its government organization and powers to suit its special needs. An elected government study commission drafts the home rule charter. Commissioners often liken a charter to a local constitution for the municipality. It is a body of law, a framework within which the local governing body can adopt, adapt and administer legislation and regulations for the conduct of business, expansion of citizen participation in decision-making and creation of sustainable communities.
Pennsylvania law allows no initiative and referendum except when it comes to kicking-off a home rule campaign. Citizens may commence a change in their local government, repositioning governing authority in the local community, by circulating petitions with minimal signature requirements, and placing a question on the ballot that asks voters to elect a government study commission which can draft the charter and offer it to the voters for adoption.
The Governor's Center is quick to point out that home rule does not "set a municipality adrift from the rest of the state, and that it remains subject to restrictions found in the United States and Pennsylvania constitutions and in state laws applicable to home rule municipalities." Due to the state's legislative maneuvering since home rule was constitutionally mandated, statutory limits on local autonomy under home rule has made it more challenging for communities to achieve local democracy. But home rule remains the best strategic option for communities in Pennsylvania looking to wrest governing authority away from corporate-friendly legislators in Harrisburg. It allows changes in the way communities govern themselves that are restricted under municipal codes like the Second Class Township Code and other local governing guidelines. Local governments without home rule can only act where specifically authorized by state law; home rule municipalities can act anywhere except where they are specifically limited by state law.
Enactment of the Home Rule Law in 1972 culminated a hundred-year long movement toward increased local autonomy. In the post-Civil War era, railroad and mining corporation lawyers appointed to judgeships at all levels of the judiciary had busied themselves constricting the power of citizens to oppose corporate projects and "development" in their own communities. State legislators cooperated closely by adopting municipal codes based on "Dillon's Rule," which relegated municipalities to the status of appendages of the state legislatures.
It was concurrent with increased emphasis on delegating both federal and state programs to county and municipal governments that Pennsylvania finally extended home rule to municipalities. But this legislative trend toward increased local autonomy has been coincident with a countervailing trend–an increased legislative tendency to reward lobbyists with uniform state laws overriding local discretionary authority. Examples include the Municipalities Planning Code, the "ACRE" Initiative (HB1646, 2005), and the Pennsylvania Uniform Construction Code. Thus home rule is not a static concept. State legislative activity and judicial interpretations are likely to constrict local powers further under home rule charters, and so it is up to citizens to work to expand them. The Legal Defense Fund is working actively to assist in that project.
Development of Home Rule
Implementation of home rule in Pennsylvania has been a slow, lengthy process, generally lagging behind other states. Final adoption of the Home Rule Law in 1972 came almost a century after Missouri become the first state to grant constitutional home rule in 1875.
Pennsylvania Background. William Penn’s Charter granted by Charles II in 1681 authorized the proprietor to create counties, towns, boroughs and cities. The King took land not his and gave it to the Penn family to divvy up, oversee and govern. Early practice vested sovereign power over local government in the provincial, and later, state government. Abuse of legislative interference in local matters in the nineteenth century led to prohibition of special and local laws in the Constitution in 1874. However, only a few years later the U.S. Supreme Court adopted "Dillon's Rule" as the legal standard for decisions pertaining to municipal governance, thus making community decision-making ineffectual against state legislative dictates.
The progressive movement of the early twentieth century spread the concept of a constitutional guarantee of home rule for municipalities across the country. Home rule in the Progressive era was meant to achieve governing "efficiency" fashioned after corporate business models, and was not viewed as a way to expand citizen participation or create greater local democracy. Home rule first came to Pennsylvania in 1922 when the Constitution was amended to allow the General Assembly to grant cities the right to adopt home rule charters. But the legislature did not take action until 1949, and then only authorized home rule for Philadelphia. Philadelphia citizens were quick to take action - - the voters adopted a proposed home rule charter in May 1951.
A second step by the General Assembly was the adoption of the Optional Third Class City Charter Law in 1957. The Law offered third class cities a selection of governmental forms provided in the law and granted a measure of home rule power. Between 1957 and 1972, seventeen cities adopted optional charters under the authority of this law. Thirteen still operate under their optional charters; Wilkes-Barre adopted a home rule charter in 1973, Johnstown in 1993 and Allentown 1996.
Home Rule Law
Home rule for all local governments became an issue again in the studies of various commissions leading up to the Constitutional Convention in 1967-68. Home rule was one of the central points of the new local government article proposed to the voters and adopted in 1968.
“Municipalities shall have the right and power to frame and adopt home rule charters... A municipality which has a home rule charter may exercise any power to perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.”
The legislature met the constitutional mandate to enact implementing legislation within four years by adoption of the Home Rule Charter and Optional Plans Law on April 13, 1972. The Home Rule Law establishes the procedure for adoption of a home rule charter. The voters of a local jurisdiction elect a government study commission charged with studying the existing form of government, exploring alternatives and deciding whether or not to recommend a change. If the commission decides to recommend home rule, it drafts a charter that is presented to the voters for their decision. Adoption of a home rule charter comes only with the approval of a majority of municipal citizens voting in a referendum.
The Home Rule Law also contains restrictions on the exercise of home rule powers. In certain subject areas, home rule municipalities are restricted to powers set forth in state law. In addition, home rule municipalities are subject to uniform state laws applicable in every part of the Commonwealth.
Since its inception, the Home Rule Law has been amended fourteen times. In most cases the amendments clarified procedures, but one significant amendment in 1974 placed home rule municipalities under the provisions of the Pennsylvania Municipalities Planning Code. This had the effect of nullifying all local laws pertaining to governance or regulation of land use within communities, even those under home rule charters. In 1996, the entire text of the Act was reenacted as part of Title 53 of the Pennsylvania Consolidated Statutes. This involved renumbering all the sections and restructuring the headings. In making these clerical changes, whole areas of democratic decision-making at the local level were voided. However, Article 1, Section 2 of the Pennsylvania Constitution has not yet been amended where it states, “All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.” Hence, strategies for overcoming obstacles to local democracy instituted through the MPC by the legislature are wholly legitimate.
The Home Rule Charter and Optional Plans Law grants Pennsylvania municipalities the power to determine for themselves what structure their government will take and what services it will perform. A home rule municipality no longer has its powers and organization determined by the state legislature. A home rule municipality drafts and amends its own charter and can exercise any power or perform any function not denied by the state Constitution, the General Assembly or its home rule charter. As of January 2001, 71 municipalities have adopted home rule charters, including 6 counties, 19 cities, 19 boroughs and 27 townships.
Optional Plans Between 1957 and 1972, third class cities could choose the mayor-council or council-manager form of government. The Home Rule Charter and Optional Plans Law extended to all municipalities the right to adopt optional plans of government. Adoption of an optional plan of government alters a municipality's structural form and administrative organization. The municipality continues to be subject to its particular municipal code regarding municipal powers.
Six optional plans are provided for under the law:
Executive (Mayor)-Council Plan A (department of administration optional);
Executive (Mayor)-Council Plan B (department of administration mandated);
Executive (Mayor)-Council Plan C (provides for the office of managing director);
Small Municipality Plan (limited to any municipality having a population of less than 7,500 residents; and
Optional County Plan (limited to counties).
As of January 1997, three cities, two boroughs and six townships have adopted optional plans of government. Thirteen cities continue to operate under the Optional Third Class City Charter Law.
The General Assembly chose to implement the constitutional mandates for home rule and for optional plans of government for municipalities in a single piece of legislation. Adoption of an optional plan is through the same government study commission process as for home rule, except the government study commission merely selects one of the optional plans provided in Sections 2971 through 3171 of the Law. These include a council-manager plan, an executive-council plan with three variations, and a plan for small municipalities where the elected executive doubles as the president of council. Municipalities adopting optional plans gain no more home rule powers; they remain subject to the provisions of their municipal code, except where it is superseded by the structural provision of the optional plan.
As of September 1999, only 22 government study commissions recommended optional plans to the voters, as opposed to 136 recommending home rule charters.
The official Pennsylvania document on home rule in the Commonwealth can be read here in pdf. file.
real source of misgovernment – the active cause of corruption – is to
be found, not in the slums, not in the population ordinarily regarded
as ignorant and vicious, but in the selfishness and greed of those who
are recognized leaders in commercial and industrial affairs.” J. Allen Smith, The Spirit of American Government [pdf], 1907, p 288