Meeting Minutes And Agendas

Board of Supervisors

Tuesday, December 08 2009

MIDDLETOWN TOWNSHIP

BOARD OF SUPERVISORS

REGULAR MEETING

DECEMBER 8, 2009

PRESENT:

CHARLES M. THOMPSON, JR., CHAIRPERSON}

ROBERT G. MCMONAGLE, VICE-CHAIRPERSON}

KATHY H. HEUER, SECRETARY} BOARD OF SUPERVISORS

H. GEORGE LEONHAUSER}

JASPER CARO}

RAYMOND STEPNOSKI, TOWNSHIP MANAGER

MICHAEL J. SAVONA, ESQ., TOWNSHIP SOLICITOR

HERBERT C. GERY, P.E., TOWNSHIP ENGINEER

1.CALL TO ORDER, PLEDGE OF ALLEGIANCE, AND ROLL CALL.

Mr. Thompson called the meeting to order at 6:30 p.m.The pledge of allegiance was led by Boy Scout Troup 19.Ms. Heuer called roll.All Supervisors were in attendance along with 30 interested citizens.

2.ANNOUNCEMENTS, CORRESPONDENCE, AWARDS AND REPORTS.

A.NEXT BOARD OF SUPERVISORS MEETING - TUESDAY, DECEMBER 22, 2009 @ 6:30 P.M.

B.PRESENTATION OF PROCLAMATION TO ETHEL HAYS FOR 30 YEARS OF SERVICE IN THE POLICE DEPARTMENT.

Mr. Thompson read a proclamation to Ms. Hays who retired effective November 30, 2009 after 30 years of service to the Middletown Township Police Department.

3.PUBLIC COMMENT.NON-AGENDA ITEMS ONLY. (MAXIMUM 30 MINUTES)

Erin Schumacher, Twin Oaks expressed her concern with the lack of activity by PennDOT on Oxford Valley Road.She asked if there is any pressure the Board and/or Township could put on PennDOT to return the equipment to the site and complete the job so the roadway may be opened prior to winter setting in.

Mr. Thompson said PennDOT stated they would absolutely have the roadway open for the winter.Township Manager to put what pressure he can on PennDOT to complete this project as soon as possible.

4.CONSENT AGENDA ITEMS.

A.CONSIDERATION OF AUTHORIZING PAYMENT OF BILL LISTS #11-7 DATED NOVEMBER 23, 2009, #12-1 DATED DECEMBER 1, 2009, AND #12-2 DATED DECEMBER 8, 2009.

B.CONSIDERATION OF APPROVING THE NOVEMBER 10, 2009 MINUTES OF THE PUBLIC MEETING OF THE MIDDLETOWN TOWNSHIP BOARD OF SUPERVISORS.

C.CONSIDERATION OF APPROVING A DONATION IN THE AMOUNT OF $2,000.00 TO "FOUR FOR THE FUTURE, 5^TH ANNUAL RUN THE GATES" TO BE HELD ON SUNDAY, JUNE 6, 2010 IN SNOWBALL AND FORSYTHIA GATES.

D.CONSIDERATION OF APPROVING THE 2007 ROAD PROGRAM MAINTENANCE BOND RELEASE.

E.CONSIDERATION OF ENACTING RESOLUTION #09-18R CONCERNING TRANSFER OF INVESTMENT FUNDS.

Mr. Caro asked about the $3,200.00 appraisal that is listed on the bill list.Mr. Savona said the appraisal is related to a property that is being considered by the Park & Recreation Department and the Manager for acquisition as part of the County Open Space Fund Program.

ACTION:MS. HEUER MADE A MOTION, SECONDED BY MR. CARO TO ACCEPT CONSENT AGENDA ITEMS A - E AS LISTED ABOVE.MOTION CARRIED UNANIMOUSLY.

5.CONSIDERATION OF ACCEPTING THE REQUEST FOR EXTENSION (REVIEW PERIOD EXPIRES 12/31/09).

ACTION:MR. MCMONAGLE MADE A MOTION, SECONDED BY MR. LEONHAUSER TO ACCEPT THE EXTENSION FROM K & S GREENDAY, PRELIMINARY/FINAL PLAN OF LAND DEVELOPMENT, TMP #22-057-026-001, IN THE M-1 (LIGHT MANUFACTURING) ZONING DISTRICT, 1060 BIG OAK ROAD, S/LD #08-02 UNTIL DECEMBER 31, 2009.MOTION CARRIED UNANIMOUSLY.

6.CONSIDERATION OF THE NESHAMINY HIGH SCHOOL, AMENDED FINAL PLAN OF LAND DEVELOPMENT, TMP #22-011-002, #22-011-002-001, #22-012-358, IN THE R-2 ZONING DISTRICT, 2001 OLD LINCOLN HIGHWAY, S/LD #05-33.(REVIEW PERIOD EXPIRES 12/30/09).

Thomas J. Profy, III, Esq., Solicitor for the Neshaminy School District, applicant along with Dr. Louis T. Muenker, Rob McGee, Neshaminy High School Principal, Paul Minotti, Facilities Director and Gary Bulik of Gilmore Associates, Project Engineer were all in attendance.Dr. Muenker, Superintendent acknowledged publicly the patience the Board has shown.This was a long project that has taken place over a period of three years.Dr. Muenker said they met approximately 2 months ago with the Township Planning Commission and one of the remaining issues at that time was the traffic flow for the student lot which is in the back of the high school facility.Dr. Muenker presented a drawing through a DVD.Repainting of traffic flow signals as well as sight line with regard to the Jersey barriers were also addressed in compliance with the recommendations by the Planning Commission.Students do not leave campus until all buses have exited the property as well.There are two adults, a security guard and an assistant principal in the morning and also at dismissal to aid in the traffic flow.

Ms. Heuer asked Dr. Muenker if he is committed to the hiring of those two adults to monitor the morning and afternoon traffic flow.Dr. Muenker said yes.Currently there is an assistant principal who is in charge of one of the grade levels and also a security guard.Dr. Muenker said the drivers have been very well behaved because they realize it is a privilege to drive so they follow directions to the point.

Mr. Savona stated there are a number of issues raised by the Zoning Officer in the memorandum which should be addressed as part of the Board's consideration.There are three (3) items for which the applicant requires waivers from the S/LD ordinance that are in addition to the seven (7) waivers that were granted originally when the application was approved by the Board of Supervisors.

The waivers are as follows:

·§410(2) A - Cartway and right-of-way width.Old Lincoln Highway and Fairhill Road do not meet the requirements of this section of SALDO.

·§421(5)(E) -ADA Parking - Handicapped parking spaces are shown on the plan with dimensions 8.00 feet by 18.0 feet.Handicapped parking shall size should be 12.5 feet by 20.0 feet in accordance with the requirements of this section of SALDO.

·§510(1)-Curbs and sidewalks shall be provided along both sides of all existing streets.Curbing is not proposed along Old Lincoln Highway or Fairhill Road.The applicant has requested a waiver from this requirement.The Township's Traffic Engineer and PennDOT have recommended the curbs and sidewalk waiver.

Mr. Gery advised that the plans have been adequately revised to address the comments that were in the original approval letter.All other issues that were developed over the current submission have been adequately addressed to Mr. Gery's as well as the Township's Planning Commission satisfaction.

Mr. Savona stated that the Township's Planning Commission recommended approval of the amended final plan subject to the following conditions:revise the parking lot configuration in accordance with Option 2, which was presented to the Planning Commission as designed by Gilmore and Associates with a plan date of September 8, 2009; compliance with any Fire Marshal comments and requirements; compliance with the Township Engineer's comment letter dated August 20, 2009; compliance with the Township's Traffic Engineer comment letter of September 1, 2009 and compliance with any original conditions of the previous plan approvals from the Township and subject to the three requested waivers.Mr. Savona asked Mr. Profy if he was in agreement with the Planning Commission's recommendation as to compliance with all of the listed review letters.Mr. Profy said yes.

Mr. Stepnoski stated that the parking situation that was just presented deviates from what was shown on the screen this evening and what he presented was in fact Option 2.This actually deviates from what the Planning Commission accepted.Mr. Bulik said at the time of that Planning Commission meeting there was an Option 1 and Option 2 and what he ascertained from that meeting is the Planning Commission wanted a hybrid of the two options, which is called Option 1A.This option met Planning Commission's suggestion to reverse the traffic flow and add a wide pedestrian cross walk.

Brian Keaveney, Township Traffic Engineer stated that the applicant addressed the primary concern which was the sight lines at the driveway by revising the barrier design.With respect to the flow of the parking lot, both previously proposed circulation patterns were reviewed.Fundamentally, with the caveat that there is control of the parking lot and directional there is really very little difference between the two diagrams.Mr. Keaveney said he would be more concerned if the proposed were a normal parking lot from the standpoint that you could have entering and exiting traffic constantly conflicting with one another.Given the type of operation he is comfortable with the proposed configuration.

Mr. Profy appreciates the attention to detail, so it is understood what is proposed for the final plan is what is shown on the easel which is Option 1A.Mr. Gery clarified that this is what the Planning Commission discussed at their meeting.

Mr. McMonagle asked Mr. Gery if he had any issue with the three (3) proposed waivers.Mr. Gery stated he was fine with what was presented this evening.

ACTION:MS. HEUER MADE A MOTION, SECONDED BY MR. CARO TO APPROVE THE NESHAMINY HIGH SCHOOL AMENDED FINAL PLAN OF LAND DEVELOPMENT, TMP #22-011-002, #22-011-002-001 AND #22-012-358 IN THE R-2 ZONING DISTRICT, 2001 OLD LINCOLN HIGHWAY, S/LD #05-33 SUBJECT TO THE CONDITIONS OF THE PLANNING COMMISSION AND OPTION 1A FOR PARKING.MOTION CARRIED UNANIMOUSLY.

7.CONSIDERATION OF APPROVING THE LAND DEVELOPMENT WAIVER REQUEST FOR FOXWOOD MANOR APARTMENTS COMMUNITY CENTER, LOCATED ON 2180 VETERANS' HIGHWAY, LEVITTOWN.

Fred Werner, Project Manager representing Foxwood Manor Apartments, which is affordable low-income housing.The proposal is to add a 660 square foot addition to the community service building.There is currently a 400 square foot patio on the footprint that was being used for recreational purposes and essentially 260 square foot of surface area will be added.The reason for the request of the land development waiver is not to bypass payment of application fees or any procedures or inspections by the Township, but is due to a timeline.As a tax credit deal, the tax credit expires on February 16, 2010.

Mr. Werner said they have received County Conservation District approval; approval from the Pennsylvania Department of Labor and Industry to meet all accessibility requirements and are now in the process of submitting paperwork to the Licenses & Inspections Department and the Township Engineer.

Mr. Stepnoski stated that this is a de minimis change and could be handled through the permit and grading permit process and is appropriate for a land development waiver.

ACTION:MR. MCMONAGLE MADE A MOTION, SECONDED BY MR. CARO TO APPROVE THE LAND DEVELOPMENT WAIVER REQUEST FOR FOXWOOD MANOR APARTMENTS COMMUNITY CENTER, LOCATED ON 2180 VETERANS' HIGHWAY, LEVITTOWN.APPROVED UNANIMOUSLY.

8.CONSIDERATION OF BIDS FOR THE MIDDLETOWN COMMUNITY CENTER RESTROOM UPGRADE PROGRAM.

Mr. Stepnoski stated the Township had received a CDBG-ARR grant funds to upgrade the restrooms at the Community Center to make them more energy efficient.The Center is used by the Senior Citizens and also for evening classes. Bid Specifications were written and advertised with bids being received. There are several issues and after review by the Township Solicitor, it was recommended that all bids be rejected.If the amount of the upgrade is under $20,000.00 and there is no additional building it can be completed under contract services.

Mr. Savona said in the process of reviewing the bids it became apparent that a number of the contractors were not going to meet the Township's qualification requirements for the Responsible Contractor Certifications. As a result, and because the Township is under obligation to use the money by the end of December, Mr. Savona advised Mr. Stepnoski that it would be advisable for the Township to reject all of the bids. The work that is proposed and the scope of the work that is proposed is simply a replacement in kind of existing facilities.Accordingly under §3102 H (1) of the Township Code it is not required to be publicly bid.

The proposal is a contract for routine maintenance repair or replacements of public work of the Township which is an exception to the bidding statute.In order to get this work done by the end of the year, Mr. Stepnoski and Ms. Lamanna can solicit proposals that fall within the grant funding application and award the contract without going through the bid process.The recommendation would be for the Board reject all bids as solicited and direct the Township Manager and Parks & Recreation Director solicit proposals from qualified contractors through the exception to the public bidding statute.

ACTION:MS. HEUER MADE A MOTION, SECONDED BY MR. CARO TO REJECT ALL BIDS FOR THE MIDDLETOWN COMMUNITY CENTER RESTROOM UPGRADE PROJECT AND DIRECT THE TOWNSHIP MANAGER AND DIRECTOR OF PARKS & RECREATION TO HIRE CONTRACTORS TO PERFORM THE TASK.

Mr. Caro asked if the Township staff has time to do this work at this time.Mr. Stepnoski said yes along with one outside contractor.

Andy Warren, 294 Shady Brook Drive, Langhorne asked if the reason the bids were rejected was because there was something in the request for proposals that made it difficult if not impossible for bidders to meet.

Mr. Savona said that is not what he stated.The Township received 5 bids and the grant amount is $19,500.00 with the lowest bidder falling under the limit of the grant, but that bidder did not meet the Township's ordinance requirements to qualify as a responsible contractor.If that bid is eliminated any other bid thereafter is in excess of the bid requirements and there were also additional bidders above the bid amount that didn't meet the certification requirement.

Mr. Warren said he agrees with the action the Board is taking, but would it make sense at a time in the future the Township should examine what was in the specifications that the bidders couldn't meet.

MOTION CARRIED UNANIMOUSLY.

9.PUBLIC HEARING TO CONSIDER ADOPTION OF ORDINANCE #09-04 REPEALING ORDINANCE #08-06 WHICH ESTABLISHED THE OFFICE OF DIRECTOR OF PUBLIC SAFETY FOR MIDDLETOWN TOWNSHIP; PROVIDING FOR THE RESTORATION OF THE OFFICE OF CHIEF OF POLICE.(PROOF OF PUBLICATION HAS BEEN RECEIVED.)

Prior to moving on to Item #9, Mr. Thompson made the following statement:

Because of the temporary restraining order, Mr. Thompson was in court yesterday to determine if the current Board of Supervisors had the right to pass an ordinance establishing the position of Director of Public Safety and reconstituting the position of Chief of Police. Additionally, the plaintiffs were asking the judge to bar the Board from appointing the current acting Director of Public Safety to the new position of Chief of Police.The judge ruled in favor of the defendants, the Township and the members of the Board of Supervisors in both instances.That being said, he also said he presumed the present Board would act responsibly and protect the citizens from any turmoil, cost and expense that could tend to the appointment of the new chief.I want to be clear about one point, we believed and still believe that the best way to prepare for the 21^st Century was to have a Director of Public Safety oversee all emergency services in Middletown Township.

Forging ahead to protect this position; however, would conceivably lead to more turmoil which would not be in the best interest of Middletown Township. In an effort to reach a compromise that satisfies the main concern that the best possible candidate be chosen to lead the Police Department, we are happy to report that the Township Solicitor and the attorney for the plaintiffs have reached an agreement that will bring about this result.Under the terms of the agreement Ordinance #09-04 has been amended or will be amended to stipulate that it will not go into effect until a new chief is appointed.During the intervening time Patrick McGinty will continue to serve as Acting Public Safety Director.We are very pleased with the job that Director McGinty has been doing during the past year and this will insure continuity until the new chief is hired.

The second and most important part of this agreement is that there will be a thorough search for a new chief to include "a public discussion, at which public comment may be considered regarding the merits of any candidate proposed for appointment by the Township.

By entering into this agreement we feel that Supervisors Elect Kreiling and Mallon are sincere in their pledge to conduct a wide, thorough and transparent search for a new chief of police.They are to be commended and we pledge our support in that effort and are ready to help in any way we can.

ACTION:MS. HEUER MADE A MOTION, SECONDED BY MR. CARO TO AUTHORIZE THE TOWNSHIP SOLICITOR TO EXECUTE THE PROPOSED STIPULATED ORDER.

Mr. Thompson read the Stipulation and Order, which is attached and will become a permanent part of the minutes.(See Attachment)

Mr. McMonagle inquired who wrote the Stipulation and Order.Mr. Savona stated the draft before the Board was a combined effort back and forth between Mr. Bolla, record counsel for the plaintiffs and Mr. Fitzpatrick who was involved in the negotiations and himself.The original language was drafted by Mr. Savona with amendments back and forth with the final version before the Board was language that was mutually agreed on among the three counsels.

Mr. McMonagle asked Mr. Savona if he has any knowledge of an attorney from Begley, Carlin & Mandio by the name of Frank Dillon being involved in the composition of the Stipulation and Order.Mr. Savona said he did not speak to Mr. Dillon.The only comments Mr. Savona knows of coming from Begley Carlin & Mandio came through an email he received from Mr. Fitzpatrick.Mr. Savona presumes the edits that were made were made by Mr. Fitzpatrick, but he doesn't know for sure.Mr. Savona doesn't know personally that Mr. Dillon was in anyway involved in the preparation of the language.The lion share of the language before the Board is language that was written initially by Mr. Savona and edited back and forth through discussions with Mr. Bolla and Mr. Fitzpatrick.

Mr. McMonagle asked Mr. Savona to point out the significant changes that were made.Mr. Savona said the original language he proposed suggested that the search for the police chief would be styled as a nationwide search.That was then edited to reflect a full and thorough search.The original language that Mr. Savona proposed indicated that the Township would affirmatively hire a consult and that was changed to "if deemed necessary".

Mr. McMonagle said the original Stipulation and Order that Mr. Savona composed was pretty much water downed such that there is really no guarantees of anything that is stated regardless of the "flowery" language because significant terms were struck from the original composition and it is Mr. McMonagle's belief that they were struck by Mr. Frank Dillon.

Mr. Savona said the original terms that he proposed were stronger than what the remaining language is.

At this point Mr. Thompson opened this issue to public comment.

Howard Lindner, Langhorne has trouble understanding why the Township has to go outside to find a police chief when, in his opinion, Middletown has the finest police force in the country. He believes it would be a waste of taxpayers' money during these economic times to look outside of the police force for a chief of police.

Mr. Thompson asked Mr. Lindner if he listened to the Stipulation and Order that he just read into the record.The Stipulation stated that the search would include members within the community and outside the community.

Acting Director Patrick McGinty said on January 30, 2009, the day after the most tragic event in the Middletown Police Department, the death of Chris Jones, he was asked by Mr. Stepnoski to assume the duties of Acting Director of Public Safety.He felt that as a senior Lieutenant that it was proper and it was his duty to accept the responsibilities of the office.For the past 10 months Acting Director McGinty has worked for the best interest for the residents of Middletown just as he has for the last 35 years.As he has risen through every rank in the Department to the rank of Lieutenant, obtained an Associate's Degree in Police Administration and graduated from the FBI National Academy he has always been proud to be a member of the finest department in the area.

There are challenges with the office of Director which Director McGinty has been willing to tackle and continue to do so in the best interest of the residents of Middletown.With that being said Director McGinty wants it to be known that he stands ready to work in whatever capacity this Board and the future Board determines as necessary.Further, Director McGinty called upon his brother and sister officers to resolve the focus on protecting and serving the residents of Middletown as they have been sworn to do.

Mr. Thompson thanked Director McGinty and stated the Township is lucky to have his service.

Phyllis Thomas, Langhorne asked when the search was done for the Director of Public Safety were the people that were looked at for the position meet the criteria for the position of Chief of Police.

Mr. Thompson said indeed they met the criteria that the Board had at the time.Whether they will meet the criteria of the new Board would be up to them to decide.The problem was as Mr. Thompson mentioned in his statement was at that time the entire process was sabotaged and many of those people who stated they were interested decided not to.

Ms. Thomas asked why the search is going to be done all over when we already have someone that is qualified and why not just nominate him as Chief of Police.Mr. Thompson stated that the new Supervisors Elect have announced their intention that they would like to do a complete search.In order to try to compromise and meet with them and eliminate any type of difficulties in the transition, this directive was crafted which would give them the opportunity to conduct the search that they wish to make.

Mr. McMonagle said it is not that simple.The incoming Board, Supervisors Elect sued the Board and instead of using the law as a shield as it was meant, they used the law as a weapon.This is the 5^th time this Board has been sued by the same crew in the last year and a half.The sitting members were facing some pretty severe financial implications if they were to move forward and appoint the police chief as Ms. Thomas suggested.This is sort of a bailout so to speak, an escape hatch.Ms. Thomas added that it is a "sell out" and Mr. McMonagle agreed.

Andy Warren, Shady Brook Drive, commended the Board and all parties to this resolution of this issue.For this Board to take any kind of action that would have bound a new Board would have set whoever that individual that would have been named in an untenable task.This is a good compromise and Mr. Warren has no problem with the present director interviewing for the position and no problem with other members of the department interviewing and has no problem with any other police officers in Bucks County interviewing.

Mr. Warren hopes that the Board does not hire someone to oversee the process.There are 60,000 plus or minus good common sense residents in the Township that could become an interview board to review resumes to turn over to the final decision makers.There are at least 2 past party chair people, 2 sitting County Commissioners, a past congressman and a number of former County Commissioners along with the residents to interview.

Mr. McMonagle asked Mr. Warren to explain his statement that the present Board would bind a new Board with any decisions they make prior to the end of their terms.Mr. Warren believes that anytime an outgoing Board takes an action that binds, whether it is legal or not, binds a new Board and puts the bindee in a potential untenable position which is why he believes by statute an incoming Board has until February 15^th to re-examine a budget by an outgoing Board.

Mr. McMonagle brought up the fact that Mr. Warren was in a similar position in 1983 after an election where he was what would be called a "lame duck" board as a County Commissioner.At that time Mr. Warren made 41 appointments in late December.Mr. McMonagle read information from the BCCT dated December 1983.Mr. Warren stated that Mr. McMonagle is correct, but he is before the Board this evening to tell the Board they have done something good by allowing the new Board the opportunity to appoint a police chief.

Mr. Thompson commented that Mr. Warren's comments should be made to the new Board because he is asking for things to be done that the current Board has no control over.

MOTION CARRIED BY A VOTE OF 4-1 WITH MR. MCMONAGLE OPPOSED.

At this point the Board moved on to the action concerning the amendment to the Ordinance as proposed.

ACTION:MS. HEUER MOTIONED, SECONDED BY MR. CARO TO AMEND THE ORDINANCE TO CHANGE THE EFFECTIVE DATE OF THE ORDINANCE WOULD BE WHEN THE NEW CHIEF OF POLICE IS APPOINTED AND ONLY UPON HIS APPOINTMENT AS SPECIFIED BY THE STIPULATION AND ORDER.

Mr. Thompson reiterated that the Stipulation and Order that was just voted on is a stipulation that was filed with the judge that is typically done after an opinion is rendered.This is a legal document that will go to the judge.Mr. Savona said that the document that Mr. Thompson read will be filed in case #2009-12506-30 after it has been signed by Mr. Savona, the counsel for the petitioners and plaintiffs have signed it and the judge has signed it.This will be an order of the court that will be enforceable with all of the powers of contempt and otherwise that the court has to enforce orders.

Mr. McMonagle asked if the judge has seen this Stipulation and Order.Mr. Savona said no, he believes that Mr. Bolla informed the judge's chambers today that a Stipulation and Order was under consideration by the parties and the court indicated that if in fact the parties agreed to a stipulation it should be presented for his signature.Mr. McMonagle asked if the judge were to disagree with the stipulation and refuse to sign it, what the recourse of the Board is at that time.Mr. Savona said it is possible, but he would be surprised if the judge doesn't sign it.If he doesn't sign it the matter would come back to the Board for consideration or any other action or agreement that the parties would make.

Mr. Thompson said the motion before the Board is to bring the ordinance in line with the document that is being filed with the court.

The issue was opened to public comment.There was no public comment.

MOTION CARRIED BY A VOTE OF 4-1 WITH MR. MCMONAGLE OPPOSED.

Mr. Stepnoski stated the change the Board just voted on would affect Section VII of the ordinance advertised and is a change that does not require re-advertising according to the Solicitor's opinion.The section shall read as follows:

THIS ORDINANCE SHALL BECOME EFFECTIVE UPON APPOINTMENT OF A CHIEF OF POLICE BY THE BOARD OF SUPERVISORS AT A DULY ADVERTISED PUBLIC MEETING, BUT NOT LESS THAN FIVE (5) DAYS AFTER ENACTMENT OF THIS ORDINANCE BY THE BOARD OF SUPERVISORS.

Mr. Stepnoski advised that this is consistent with the Municipalities Planning Code of no ordinance going into effect for five (5) days after passing.Mr. Savona agreed with this statement with the exception that it is not an MPC requirement, it is §66 601 of the Second Class Township Code.

ACTION:MR. CARO MADE A MOTION, SECONDED BY TO ADOPT ORDINANCE #09-04 REPEALING ORDINANCE #08-06 WHICH ESTABLISHED THE OFFICE OF DIRECTOR OF PUBLIC SAFETY FOR MIDDLETOWN TOWNSHIP PROVIDING FOR THE RESTORATION OF THE OFFICE OF CHIEF OF POLICE.

Mr. McMonagle pointed out that if any member of the public viewed the changes in the amended ordinance as being substantive they could challenge the lack of advertisement and files a Sunshine Lawsuit.Mr. Caro asked Mr. Savona for his opinion.

Mr. Savona said typically the effective date of an ordinance is not substantive in nature.The substance of the ordinance is the matter that the ordinance actually purports to change and implement.Within the text of the ordinance in this ordinance, Sections I, II and III, savings clause, repealer and effective date typically are not matters that affect the substance; it simply goes to the date upon which the ordinance becomes effective.According to case law that Mr. Savona has seen, this would not be considered a substantive modification.

The issue was opened to public comment.There was no public comment.

MOTION CARRIED BY A VOTE OF 4-1 WITH MR. MCMONAGLE OPPOSED.

10.CONSIDERATION OF THE DISPOSITION OF POLICE GRIEVANCES INVOLVING TEMPORARY PROMOTIONS.

Stephen Forman, President of Middletown PBA stated that a proposed resolution has been submitted to Mr. Yeager from Mr. Busillo's office.Mr. Stepnoski stated that he was not aware of this resolution.Mr. Forman asked if in consideration of time, he could provide a list of examples of binding past practices from the last 15 years in filling sergeant's positions or move toward how it could be fixed.

Mr. McMonagle said considering the Board does not have the resolution he cited from the PBA's attorney, he doesn't know how the Board could move forward. Mr. Forman provided the information to the Board.

Mr. Stepnoski said by way of clarification Director McGinty and he received an email on December 3^rd asking whether or not they had any interest in this and there are a number of issues associated with the proposal and it went no further and received no response.Mr. Stepnoski said he was not clear that this was anything that had been officially proposed.Since the last Board of Supervisors meeting of September, Mr. Forman said the attorneys were going to be diligently speaking back and forth.Obviously, nothing happened from September until December 3^rd.

Mr. McMonagle asked who drafted the resolution that he just handed the Board.Mr. Forman said it was drafted by his Board and himself and forwarded to Mr. Busillo who in turn forwarded it to Mr. Yeager on Wednesday of last week.Mr. McMonagle stated the Board does not have anything on the PBA attorney's letterhead or anything from the Township's attorney regarding any sort of resolution so he does not know if it is necessarily an agreement but rather a list that has been put together by Mr. Forman and presented to the Board this evening.Mr. Forman said yes in an attempt to resolve the grievance and move forward.

Mr. Forman said that the Step III Hearing before the Board addresses a resolution between the Township and the PBA.

·The resolution addresses the "acting" positions for both sergeant and lieutenant.In the future there would be no acting positions.

·Openings would be filled through competitive promotional examinations.

·Temporary sergeants openings/positions will be filled as per the past practice, either reassigning the "5^th" sergeant to fill that vacancy or calling the sergeants overtime list.If not sergeant accepts the overtime the Senior Patrol Officer on the squad assumes the role of Officer in Charge (OIC) and a replacement of the Senior Patrol Officer will be called from the Police Officers overtime list.

·Temporary lieutenants' openings/positions can be filled by the senior most sergeant or next senior most sergeant and so on until the assignment is accepted by a sergeant.The sergeant will remain with the title, official rank, and pay of a sergeant while performing administrative tasks as needed.The sergeant will not take part in the policy making which would violate his position in the bargaining unit.The sergeant will maintain his position on the sergeants' overtime list and will be paid overtime as per the current Collective Bargaining Agreement.

Mr. Forman stated that one of the things that could have circumvented a lot of the issues is if there was a standing list for sergeant and lieutenant that could be used when a position is to be filled on a temporary basis.

Mr. Thompson inquired if the Township's labor attorney has reviewed this information.Mr. Stepnoski advised that he would have to compare this with the email he received.He commented on a few of the issues as well as Director McGinty.Mr. Stepnoski concurs with the theory and if you look at what has taken place in the intervening time, in fact there was testing and there was a list.If there was a list prior to that it was very, very stale, possibly including people who are no longer with the Department.Mr. Stepnoski said he does not believe that the Board or the Township administration had any intention to do other than in fact a full promotion based on a qualified procedure.However, it would be unwise to tie the hands of the administration to fill positions, not on an ad hoc basis, but on a clearly defined temporary basis so that you have someone in charge.The idea of having a person in charge for some short period of time is not a good situation, because you cannot rely on an individual at one point in time to be able to carry procedures through.

Director McGinty explained the reason the action was taken was because he had one lieutenant and needed a second lieutenant.The Department did not have an outstanding list at the time and Director McGinty advised Mr. Forman that he certainly would have followed any list that he had.As you are aware from prior conversations, it is very expensive to keep the list up to date.As a Board, if you decide to keep a list up to date it would alleviate this problem.

Director McGinty said the senior sergeant would take the position of lieutenant and have him still remain as a sergeant, but do the duties of lieutenant does not work that way.The lieutenant clearly has to make policy decisions and that is why Director McGinty felt it was necessary to make an acting lieutenant and then to replace him to make an acting sergeant.The idea of an acting sergeant was necessary to have stability within the department.Lengthy discussion ensued concerning overtime paid to sergeants.

Director McGinty stated that going forward what is necessary is the ability to keep the list up to date.It is up to the Board to decide if they want to spend the amount of money that is necessary to keep the list current every two years.

Mr. Stepnoski said as a practical matter, the Collective Bargaining Agreement which was cited in the denial of the grievance allows for administration to perform its function and under whatever leadership whether Director or Chief of Police, they need to perform this function and it is not something that the Board should give up.

Mr. McMonagle asked what the difference would be between the temporary openings/

positions being filled by the senior most sergeant or next senior most sergeant and the acting position.How would a temporary lieutenant not be an acting lieutenant?Mr. Forman said he would still maintain the rank of sergeant, he is not promoted, his title would not change, and his pay does not change.When the acting positions are created and randomly assigned, he picks the personnel for whatever reason he picks them. Mr. Forman said he does not have an issue with the people being picked per se, but it is a financial reward they are receiving and are competing against sergeants who are "real" sergeants, tested, competed and promoted and are now on the sergeant's overtime list; and are receiving opportunities for overtime on a sergeant's list versus patrolman's list.There are substantial financial rewards that are involved with the acting positions.

Mr. McMonagle asked if there aren't also substantial responsibilities that go with the position of lieutenant over sergeant or sergeant over patrolman.Mr. Forman agreed with that and believes that it should be a tested promoted position.If the need came up and you went to the standing list, there would have been less issue with this and probably would not have been a grievance.Mr. McMonagle asked Mr. Forman to explain to him how the standing list works; i.e. the need for a patrolman to step into a sergeant's role, or a sergeant to step into a lieutenant's role.

Mr. Forman said this list would be populated by those candidates that have tested for the positions, written and oral and the Director's points.The final standing list is populated by the results of examination and is separate from the overtime list.The overtime list is populated by seniority and rotates allowing everyone a fair chance.

Mr. Thompson said his concern is what Mr. McMonagle alluded to which is the fact that this resolution was just handed to the Board and he is not sure how the labor attorney has reviewed it.

Mr. McMonagle said the Board is aware of the chronology of some recent grievances and the Collective Agreement calls for if the Board were to deny this grievance, that the next step would be arbitration.Since the Board has not heard from the Township's labor attorney or directly from the PBA's attorney he would like to table this issue to the next Board of Supervisors meeting on December 22, 2009.

Mr. Stepnoski stated that the Board has to act on this issue today.At the September meeting the PBA granted the Board an extension until today, so they must act today.Mr. McMonagle believes that at the September meeting, the PBA requested an extension.

Mr. Forman stated that if the Board is willing to take what he has presented this evening and sit down and work with the PBA, he would be in agreement to extend it to the 22^nd of December.It is a reasonable alternative other than the arbitration if an agreement may be reached that both sides are happy with.

ACTION:MR. MCMONAGLE MADE A MOTION, SECONDED BY MS. HEUER TO TABLE THE DISPOSITION OF POLICE GRIEVANCES INVOLVING TEMPORARY PROMOTIONS TO THE DECEMBER 22, 209 PUBLIC MEETING OF THE BOARD OF SUPERVISORS.MOTION CARRIED UNANIMOUSLY.

11.OTHER BUSINESS.

Erin Schumacher, Twin Oaks, came forward at Mr. Thompson's request to find out when the project at Trenton Bristol/Oxford Valley Road will be completed as Mr. Stepnoski was out of the room at the beginning of the meeting.

Mr. Stepnoski said he has responded to every question that Mr. & Mrs. Schumacher have and he cannot account for the contractor and what they are doing on a daily basis.They are aware that it is a priority and they have stated that it would be finished by the end of the year.There is nothing more that Mr. Stepnoski can do.It is an expensive proposition to move equipment in even for a day.

Mr. McMonagle stated the contractor on this job is K. E. Seifert and the engineering firm is McMahon.Mr. Stepnoski said that Acting Lt. Mellus has been to the site and he was told that they are trying to get it open before the end of the year.They must go through PennDOT traffic to make sure that they can open it up and that all of the traffic signals and signage is correct.

Mr. Stepnoski said he would personally place a call to K. E. Seifert for an update.Mr. McMonagle apologized to Ms. Schumacher for the inconvenience, but it is just a problem with PennDOT and if there are any further questions, talk to Mr. Warren, a former employee of PennDOT who is sitting in the audience this evening.

Mr. McMonagle requested an update on the street light on Forget-me-Not Lane which is located on the backside of the municipal center.Mr. Stepnoski advised that this was given to the Director of Public Works and he would check with Mr. Wendel to see what has transpired.Mr. McMonagle clarified that Armour Electric would be directed to replace the street light and the Villages of Flowers Mill Homeowners Association would be billed.

Mr. McMonagle said there were two resignations from the Township Financial Advisory Committee.

ACTION:MR. MCMONAGLE MADE A MOTION, SECONDED BY MS. HEUER TO APPOINT MICHAEL MARIAKIS AND JULIE SAUERBRY-SMITH TO THE UNEXPIRED TERMS OF JOSEPH SPADARO AND FRED ARNOLD ON THE FINANCIAL ADVISORY COMMITTEE.

Mr. Leonhauser asked if they are unexpired terms or expired at the end of 2009.Mr. McMonagle stated that Joseph Spadaro and Fred Arnold are unexpired terms.Mr. Leonhauser asked what the terms would be.Mr. McMonagle said one is for 2 years and one is for 3 years.There will also be a new appointment to be made to the Financial Advisory Committee in January.

MOTION CARRIED BY A VOTE OF 4-1 WITH MR. LEONHAUSER OPPOSED.

12.ADJOURNMENT.

ACTION:MS. HEUER MADE A MOTION, SECONDED BY MR. CARO TO ADJOURN THE PUBLIC MEETING OF THE MIDDLETOWN TOWNSHIP BOARD OF SUPERVISORS AT 8:10 P.M.MOTION CARRIED UNANIMOUSLY.