Mt. Oliver Council hears from Michener before vacating seat
May 10, 2011
The hearing was the result of a motion made by Councilman Dennis Obeldodel at the April 18 General Meeting of the borough council to vacate Ms. Michener's seat, under section 904 of the borough code, for her failure to attend any council meetings this year. Attending the hearing were council president James Cassidy, council members George Farneth, Christine Brendel, Mr. Obeldobel and Pat Malloy, along with Borough Solicitor James Perich. Absent was Councilman John Smith.
Ms. Michener was accompanied to the hearing by her attorney, Harry Yurkovich.
Prior to beginning the hearing, Ms. Michener waved her right to a private hearing, allowing the two-dozen or so supporters and others in the room to remain. Mr. Perich also asked if she were willing to wave her HIPA rights, explaining testimony may reveal personal health information. The councilwoman also agreed to wave her HIPA rights.
The solicitor explained the hearing wasn't to show whether she should be re-elected, but was restricted to Ms. Michener showing cause why she should not be removed from office. Testimony would be limited to the councilwoman, her attorney and medical personnel, those in the gallery would not be permitted to address council.
"The basis for having this hearing to declare my seat as a councilwoman vacant due to the fact that my not attending several meetings runs counter to the Pennsylvania Constitution due to a previous decision by the Supreme Court of Pennsylvania back on September 17, 2003," Ms. Michener said in her opening statement. "Since that decision, the Pennsylvania State Association of Boroughs, of which Mount Oliver was a member, has notified its membership that Section 904 of the Borough Code which you address in your letter to me is considered to be unconstitutional and unenforceable and is being removed from the upcoming edition."
The councilwoman went on to say Councilman Obeldobel missed "four or five consecutive meetings back in January 2008 to May 2008" and wasn't sent a letter advising him he was being removed from his seat. Adding Councilman Smith and Mayor Jeff Repasky haven't been to a meeting yet this year and asked why they are being treated differently than her.
Ms. Michener maintained she has done her duty, both as chair of the Hilltop Economic Development Committee and by bringing her concerns, "backed by documentation," to council of wasteful spending in the borough.
"Time and time again my voice has gone unheard and I find your lack of concern very disheartening," she said. "Since I have been bringing these issues to the public eye, I've been told by many of you that I tell the public too much."
In response, Mr. Perich said the South Newton Township Supreme Court case Ms. Michener referred to, has to do with the Second Class Township Code and it involves a different type of municipality than Mount Oliver Borough.
"The provisions in the Second Class Township Code for removal of an elected official are different than the provisions of the Borough Code for the removal of a council [member]," he said. The provisions of the Second Class Township Code don't apply to the borough, he added.
"To my knowledge, as we sit here tonight, the Pennsylvania General Assembly has not enacted a revision to the Borough Code that was revised or removes the provision of the Borough Code under which council is here tonight. Until that happens I believe that council is proper in acting under the existing provisions." Mr. Perich stated. "As to the issue she raised concerning other members of council or the mayor missing some meetings, they're not the subject of this hearing tonight."
After several vocal outbursts from the gallery, Mr. Cassidy reminded those in attendance that it was a legal proceeding and asked there be no further outbursts from the audience.
Ms. Michener asked what the difference was between her and a male member of council missing meetings and why the removal proceedings weren't brought against them.
"There is no difference," Mr. Perich replied. "Motions were never passed [asking for their removal]."
The solicitor added the mayor isn't required to attend council meetings.
Mr. Perich told Ms. Michener that in her opening statement, she didn't provide a reason for missing the meetings.
She replied she had provided a medical excuse in January for missing the meetings.
Mr. Perich said the excuse "didn't say much" and that was one of the problems the council had with the excuse.
"I don't have to divulge my illness to you. I don't even have to give you an excuse, per the Pennsylvania Boroughs Association that no elected official has to give a reason for missing a meeting," she replied. "If you have something in writing to tell me that we have to give you excuses I would like to see that."
"It's the Borough Code," the solicitor told her.
Mr. Perich asked if it was her position that she didn't have to provide an excuse, to which Ms. Michener replied she provided a doctor's excuse why she was missing the meetings.
With Ms. Michener's permission, Mr. Perich read the note from her doctor, "The above named patient is currently under my care and is excused medically to attend council meetings." He asked if she believed the excuse to be indefinite as to when she would be returning.
"Until my doctor releases me, I am under the care and am working on getting better, which should be soon," she replied.
Ms. Michener asked is any other councilmembers have provided excuses for missing meetings.
"With all due respect we're not dealing with anybody else," Mr. Perich replied.
"I know what it sounds like, but if the question arises to vacate someone else's seat, then we'll have a hearing for that," Mr. Cassidy said. "If somebody wants to vacate Mr. Smith's seat because he's been in the hospital for the last two or three meetings [a hearing will be scheduled]"
Ms. Michener questioned whether any one from council had called or sent a letter to ask when she would be back or how long she would be away from the meetings.
Mr. Cassidy said [council] assumed her absences would end in a few months. Mr. Perich added he had sent her a letter on March 29 asking what her intentions were concerning returning to council and didn't receive a response.
"I never received the letter," Ms. Michener replied.
Members of council were then given an opportunity to question Ms. Michener.
Councilman Farneth asked her if she would be willing to disclose the specific nature of her physical or mental disability.
"No, I will get my medical excuse updated if that is what is required. So far that as I am still under doctor's care, and that does not need to be addressed in council on what my illness is in present," she replied.
In rapid questioning, Mr. Farneth asked if she were willing to disclose any mental or physical limitations; mental or emotional limitations; effects on her daily living; effects on employment; effects on her duties; or what it is about her illness or infirmity that she cannot attend council meetings.
"No," she answered each question.
After another short outburst by the gallery, questioning continued by Mr. Farneth. He asked if she was willing to explain why she is able to attend other organization meetings, including some that have lasted more than three hours, but not the council meetings.
"No, I am not," she replied.
The councilwoman was asked to explain why, if her medical or psychological diagnosis is legitimate, she would be able to run for re-election.
"No, I am not," she replied.
Mr. Farneth asked if she could explain why she was willing to believe she would be able to serve a new term as a councilwoman when she is presently not able to serve.
"No, I am not," she replied again.
She also declined to answer how many times she has seen her doctor, the last time she was examined by her doctor or when the next visit is scheduled. Ms. Michener also declined Mr. Farneth's request she allow the council access to her medical records.
The councilman asked if she recalled a conversation with him in December 2010 when she expressed deep concerns about the wasting of borough assets.
"I'm always concerned about the taxpayers of Mount Oliver Borough," she replied.
"Would you agree you cashed those paychecks," he asked and she answered "yes."
"Can you explain to me why it is that you believe it would not be a waste of borough assets for you to accept those checks when you're not performing your council duties," Mr. Farneth asked.
"I have none," she answered.
Mr. Farneth's final question concerned whether Ms. Michener had any indication from her doctor when she would be released to resume her council duties. She replied the doctor hasn't released her yet and she did not know when he would allow her to return to council.
At the conclusion of Mr. Farneth's questioning, a series of outbursts caused borough police officers to come into the room. The hearing was adjourned but the ruckus continued for several minutes until the room was finally cleared.
No decision was made at the hearing. Borough council will take a vote at the next General Meeting whether to vacate Ms. Michener's seat. If the seat is vacated, council will have 30 days to appoint someone to serve out the remainder of Ms. Michener's term for this year.