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Thwarted clean air law advocates appeal to Lehigh County commissioners

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: Sep 12 2013 05:55:23 AM CDT

Lehigh County Executive Matthew Croslis explains his role on county election board to county commissioners.

ALLENTOWN, Pa. -

What can the Lehigh County commissioners do about the county election board?

That was the essence of questions put to commissioners Wednesday night by several advocates of a proposed clean air ordinance for Allentown. They wanted city voters to decide if that ordinance will become law, but last month the election board stopped it from going on the November ballot.

“This is a real crisis of democracy,” said county resident Al Wurth, a political science professor at Lehigh University in Bethlehem. “The cancellation of an election is not something I thought I would read about in this country, much less my home county.

“I’m very concerned as a citizen of Lehigh County that the county is usurping Allentown’s sovereignty.”

“I share your concerns,” said Commissioner Michael Schware, who resides in Allentown.

The process is deeply flawed, said Commissioner Vic Mazziotti.

Wurth called on county commissioners to tell the election board to reconsider its decision and let city voters decide whether the air pollution ordinance should become law.

But Commissioner Scott Ott, who chaired the meeting, said the commissioners do not have the power to overrule the election board.

Ott added: “Do not interpret our desire to follow the law with a lack of sympathy for your cause.”

Commissioners have asked the county’s lawyers to look into whether election board decisions can be appealed. They also hope to get a clear explanation from the election board about why it rejected the ballot initiative.

They may even attempt to work with the election board, so a proposed ballot question never again gets rejected when it’s too late to save it.

Ott promised: “We’re going to follow up and find out how this process works. We want to do everything within the bounds of the law to find out how things properly should be done. And, if they weren’t done correctly, we have a great deal of interest in promoting it to be done correctly.”

Schware said the election board should make public whatever legal opinion it used as the basis for its decision against the Allentown ballot proposal. He said that opinion will help everyone better understand the process and what can derail it.

In response to a request by Schware, the county law department will look into whether any process exists to appeal election board decisions. When he gets an answer, he said he will share it with the public.

Schware already asked the law department whether county commissioners have any authority over the election board. He said the initial informal response he received is they do not.

“There is a need for independence, so a political body does not interfere with the election process for political reasons,” said Mazziotti. “However, the process itself is deeply flawed.”

Wurth said election board summarily dismissed the will of more than 2,000 Allentown voters who signed petitions to get the ordinance on the ballot. He said he was appealing to the commissioners “as the people I voted for and who are my elected representatives.”

Mazziotti said people should not be told they did something wrong and that their ballot initiative is being rejected when it’s too late for them to do anything about it.

Schware agreed, saying people should be advised early enough so they can do something about it, rather than being told “all your hard work is for nothing when it’s too late to cure it.”

Mazziotti said the county commissioners can’t tell the election board what to do, but can work with that board to improve the process.

The election board is an independent body created by state law, explained Lehigh County Executive Matthew Croslis, who is one of three members of that board.

Croslis told the commissioners “you can’t overturn what the board did, you can’t tell the board what to do; they are independent of the commissioners.”

He explained the election board’s duties include determining whether or not proposals are proper to be on a ballot. He added: “This was not an appropriate measure to put on the ballot.”

DEP killed the ballot initiative?

“Why was this petition turned down by the election board?” asked Commissioner Percy Dougherty. “Was there a specific part of state law with which this conflicted?”

“That was the belief,” replied Croslis. “But since there have been threats of possible litigation, and I would be one of the people involved in that lawsuit, I don’t want to comment on it tonight. The vote stands absent some form of challenge.”

Wurth said the basis for the election board’s rejection of the Allentown petition had to do with approval by the state Department of Environmental Protection.

Wurth said the election board’s brief letter explaining its unanimous rejection only states the proposed ordinance “does not properly recognize and account for the Department of Environmental Protection’s mandated approval role. Therefore this ordinance will not be submitted.”

Said Schware: “I don’t think that’s sufficient enough to communicate why it was turned down or why that reason was even considered.”

Wurth dismissed as “far-fetched” the idea that DEP should be given the right to approve the actions of the citizens of Allentown. He said voters should have been permitted to determine if the proposed ordinance should become law. He added if that ordinance does exceed the city’s authority, the state could have taken action against it after the November election.

The county executive said another clean air proposal could get on the ballot but it would require another petition and it would not happen until May.

Croslis suggested that ballot initiative could say: “We the petitioners direct the City of Allentown to enact an ordinance that monitors air within certain guidelines that will be approved and enforceable by the DEP.”

He said such wording would be guaranteed to force the city to enact a law that would be enforceable.

“I don’t want to dismiss the effort that went into this,” said Croslis. “If the citizens of Allentown want it, if it’s done the right way, the election board has to put it on.“

Croslis declined to answer some of Ott’s questions about the election board and said he did not know the answers to others, explaining the Aug. 27 meeting was his first as a member of that board.

Croslis did not identify the other two election board members but said one is a Democrat and one is a Republican. Those two members are appointed by the county commissioners.

Process should be more citizen friendly

Schware said rules about the process to get an initiative or referendum on a ballot aren’t clearly spelled out. He said the issue before the commissioners is whether there is any way to improve that process.

He said the process seems very easy for candidates running for office, but needs to be made easier for people trying to put questions on the ballot. “It should be more citizen friendly.”

He also said residents should not have to hire lawyers when they want to utilize that process to make changes in their government.

Ballot petition drives rejected twice in 2013

Twice this year, county election officials rejected ballot initiatives by Allentown residents to have the city’s voters decide if proposals should become new city laws.
“In both cases, the ballot questions were opposed by Allentown City Hall,” said Schware.

“This is just politics,” said Allentown resident Glenn S. Hunsicker. “This is a politician with deep pockets forcing his way to the election board.”

On Aug. 27, the election board unanimously rejected putting the proposed clean air ordinance on the November ballot. If passed by voters, that ordinance would have imposed tough regulations on the Delta Thermo waste-to-energy plant planned next to the city’s wastewater treatment plant along the Lehigh River.

City resident Diane Teti told commissioners “an army of attorneys” opposing the ordinance attended that Aug. 27 meeting. She contended the election board was threatened with lawsuits by those lawyers, so it decided to reject putting the issue on the ballot, on the assumption that city residents would be likely to sue.

Back in February, county election officials ruled that another initiative aimed at stopping the lease of the city’s water and sewer operations would not appear on the May ballot because the more than 4,000 petition signatures had been collected late in 2012.

Schware suggested the commissioners’ staff should look into whether that first ballot initiative was rejected by the election board or the county voter registration office, which administers elections.

Ott said commissioners do have oversight authority over the voter registration office. He asked city resident Paulette Hunter to provide him with any evidence she has regarding getting bad advice from that office in relation to that ballot initiative.