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By:  Kathleen A. Gray
Related Practice Areas: Business Law, Municipal Law

Published in Dec/Jan Issue of The Authority Magazine by Pennsylvania Municipal Authorities Assoc.

This article is one of several that was inspired by a training program sponsored by the Pennsylvania Department of Community and Economic Development ("DCED") in cooperation with Pennsylvania Municipal Authority Association ("PMAA") in June 2007 in three locations throughout the Commonwealth. The training program was entitled "Legal Review for Pennsylvania’s Municipal Authorities". A part of the program in each of the three locations where the program was held, consisted of addressing frequently asked legal questions, raised by authorities throughout the state and addressed to either the PMAA staff, PMAA solicitors or other solicitors throughout the Commonwealth who represent municipal authorities. This article is the first in a series of several articles dealing with frequently asked legal questions. This article deals with board member issues.

Q. May elected officials (borough council members, county supervisors, etc.) be appointed to an authority board?

A. Yes, elected officials may be appointed to authority boards. There is presently no restriction in the Municipality Authorities Act (the "Act") which prohibits elected officials from being appointed to serve on municipal authority boards. However, over the past several years, several bills have been introduced in the Pennsylvania State Legislature which would prohibit this practice. As of this time, none of those bills have been enacted into law. In considering candidates to serve on authority boards, some thought should be given as to the wisdom of appointing elected officials, even though the practice is not currently prohibited. Since authorities are in the nature of municipal corporations which typically own and operate utility systems such as water and sewer systems, there is one school of thought that suggests that authorities are better run by appointed board members, who bring a combination of skill sets especially appropriate to the operation of utility facilities. In addition, that school of thought suggests that authorities are better served to have continuity on the authority board which is not subject to the political whims of the voters.  One caveat to those authorities whose boards consist of elected officials….after the initial formation of an authority, each authority board member’s term runs for five years. If, prior to the expiration of the current term, an elected official is voted out of office, that elected official must remain on the authority board to the conclusion of his or her term unless removed by the Court of Common Pleas for cause or by virtue of death, disqualification or resignation.

Q. Can employees of the incorporating municipality, or the authority itself, be appointed to the authority board?

A. Nothing in the Authorities Act prohibits an employee of the incorporating municipality from serving on the board of an authority provided such employee meets the residency requirements in the Municipality Authorities Act. As a matter of fact, especially in the case of joint authorities, it is not unusual to see a borough manager or a township manager appointed to serve on the board of an authority created by such governing body.As to whether authority board members may be hired as employees of the authority, that practice is specifically permitted by Section 5610(e) of the Act. Notwithstanding the fact that a board member may also serve as an employee of the authority, I typically advise my clients not to hire authority board members to serve as authority employees. In particular, my concern is that as a board member, the board sets the duties and obligations of employees and their compensation. Even if an employee rescues him or herself from such discussions and votes at a board meeting, the mere presence of an employee of the authority on the board is likely to make for a very uncomfortable situation for the rest of the board members when dealing with employee issues and compensation.

Q. Can a municipal authority board fill a vacancy on its own board?

A. No, authority board members cannot fill a vacancy on their own board. Section 5610(d) of the Act specifically addresses how vacancies on the board are to be filled. Vacancies must be filled by the municipal authorities (i.e. the elected officials) of the incorporating municipality to fill an unexpired term. In the case of joint authorities, such vacancy must be filled by the elected officials of the municipality who appointed the vacating authority board member.

Q. What are the qualifications/requirements needed to serve on a municipal authority board?

A. The requirements and qualifications to serve on a municipal authority board are set forth in Section 5610(b) of the Act. Except for authorities created for the purposes of eliminating grade crossings, the members of an authority board must be either a taxpayer in, maintain a business in, or be a citizen of the municipality by which such board member is appointed or must be a taxpayer in, maintain a business in or be a citizen of a municipality into which one or more of the projects of the authority extend or is to be extended. In addition, Act 110 of 2001 added a requirement that a majority of the authority’s board members must be citizens residing in the incorporating municipality of the authority.

Q. What constitutes a quorum during a municipal authority board meeting?

A. A majority of the board members shall constitute a quorum of the board for the purposes of organizing and conducting authority business and for all other purposes. If a quorum of the board exists, all actions may be taken by a vote of a majority of the members present unless the authority’s bylaws require a larger number. (Section 5610(e) of the Act.)

Q. What compensation may a municipal authority board set?

A. An authority board may fix and determine the number of officers, agents and employees of the authority, their respective powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board may deem proper. (Section 5610(e) of the Act).

Please note, however, salaries for authority board members must be determined by the governing body of the appointing municipality (not by the authority board!) and no salaries may be increased or diminished by the governing body of the incorporating municipality during the current term for which the member shall have been appointed. Members of an authority board organized and created by a school district may not receive compensation for their services as authority board members. (Section 5610(b) of the Act).

Q. Are you automatically removed from a municipal authority board for missing three consecutive meetings?

A. No, removal is not automatic. However, Act 110 of 2001 added an attendance policy requirement for authority board members. Section 5610(f) states that a member of an authority board who fails to attend three consecutive meetings of the board, and has not been excused by the board for failing to attend such meetings, may be removed by the appointing municipality for up to 60 days after the date of the third meeting of the board which the member failed to attend. Thus, in order to remove an authority board member for three consecutive unexcused absences, the governing body of the appointing municipality must take prompt action within 60 days after the date of the third missed meeting.

All references in this article to the "Act" are references to the Municipality Authorities Act, Title 53 P.C.S.A. §§5601-5623.

Kathleen A. Gray is a partner in the Lancaster office of Barley Snyder LLC where she has practiced law for over 30 years. Her practice consists primarily of tax exempt and municipal finance and representation of municipal authorities and nonprofit corporations. She can be contacted at (717) 399-1508;