To: John M.

Morganelli, Esquire You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. _______________________________________

Court of Common Pleas of Northampton County, Pennsylvania Civil Action

OFFICE OF THE DISTRICT ATTORNEY, by and through JOHN M. MORGANELLI, NORTHAMPTON COUNTY DISTRICT ATTORNEY, Plaintiff vs. JOHN STOFFA, COUNTY EXECUTIVE, PATRICIA SIEMIONTKOWSKI, DIRECTOR OF HUMAN RESOURCES and THOMAS HARP, DIRECTOR OF ADMINISTRATION, Defendants ANSWER AND NEW MATTER 1. 2. 3. No answer required. No answer required. The allegation is a conclusion of law to which no responsive pleading is No. C48CV2013 - 2294

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. 4. Admitted.

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Denied. The language quoted is from an outdated Manual which has been

replaced and supplanted initially in 2007 and now by the Employee Policy Manual, January 2009 Issue. The quoted language is no longer part of the Employee Policy Manual, although the District Attorney has the right to hire his career service employees (Section 3.002 Definition: District Attorney) and the right to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline [his employees] (Section 3.002 Definition: Supervisor.) 6. The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. By way of further answer, the District Attorney is only given the following powers over employees: to appoint and remove members of the exempt service under his direction and supervision and to appoint, promote, transfer, demote, suspend, dismiss, or otherwise discipline members of the career service under his direction and supervision in accordance with the provisions of Article VIII. Home Rule Charter Section 503. See also New Matter. 7. The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. By way of further answer, the allegation is denied in that the District Attorneys power over personnel does not include the power to create positions or set salaries; neither the County Executive nor Director of Human Resources has the power to violate the Home Rule Charter by implementing the District Attorneys requested ultra vires acts; and, further, either officer could be dismissed from office if he or she violates the Home Rule Charter. See Home Rule Charter Section 812.

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Admitted in part. The County Council has at various times and by various

Resolutions over the past years created the following positions in the Office of the District Attorney: 1 Full-Time First Assistant District Attorney, 6 Full-Time Grade 3 Assistant District Attorneys, 7 Full-Time Grade 4 Assistant District Attorneys and 7 Part-Time Assistant District Attorneys. The budget sets salaries for these positions based on the Pay Grade and Step position of each Full-Time Assistant while the PartTime Assistants have a set salary unrelated to Pay Grades and Steps. 9. Admitted in part. The positions are created with a pay grade and salary

range assigned to each position, which range is based on the established steps within that range as set forth in District Attorney Exhibit 3. These positions are initially filled by assigning a starting step within the Pay Grade based on experience and/or expertise as determined by the department head. Subsequent adjustments to Pay Grades and Steps are enacted as part of the annual budget process. See New Matter. 10. Admitted that D.A. Exhibits 1 and 2 are Personal Action Notification

(PAN) forms dated March 1, 2013, and were received thereafter by the Department of Human Resources; and that D.A. Exhibit 3 sets forth the specific 2013 salaries for each Pay Grade and the Steps within each Pay Grade. By way of further answer, the PAN forms requested step increases were not provided for in the 2013 budget. 11. Admitted. By way of further answer, the District Attorney has the power to

appoint to fill vacancies as requested in the PAN set forth in D.A. Exhibit 4, which request has been implemented by the Department of Human Resources. 12. Admitted in part. A promotion by definition is an increase from one Pay

Grade to a higher Pay Grade as the District Attorney requested in D.A. Exhibit 4; but there are at present no additional vacant Pay Grade 4 positions available on the District -3-

Attorney staff and, therefore, the PAN request set forth in D.A. Exhibit 5 is not a promotion request but merely a request for a salary increase beyond what is authorized in his 2013 budget. See New Matter. 13. 14. Admitted. Denied as stated. The D.A. has offered no proof that he has the funds

available in his salary budget; even if the funds are available due to a vacancy which resulted in an unspent allocation for salaries, it is denied that he has the right to impose individual salary increases on the County without following the proper procedure. The temporary availability of unspent allocated funds may not be used as justification to boot strap an increase on his future years salary budgets. See New Matter. 15. Denied. (a) There is no stipulation of the County Councils Solicitor

attached; (b) the Council Solicitor does not agree that the District Attorney has unfettered ability to adjust salaries and positions; and (c) the County Solicitor, at a meeting of counsel on March 12, 2013, specifically informed the District Attorney that he could not take a position without the approval of Council. 16. Admitted in part. It is specifically denied that the implementation of the

requested PAN pay increases are ministerial as it is the power and duty of the defendants to only take such actions as are authorized by the Home Rule Charter regarding the establishment of salaries for all County employees. Any contrary action would violate their official duties and subject them to dismissal. See Home Rule Charter Section 812; and New Matter setting forth the procedure for establishing salaries, which procedures include the input of the County Executive. 17. The allegation is a conclusion of law to which no responsive pleading is

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The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. 19. The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. By way of further answer, the District Attorney may request County Council to increase specific staff salaries and/or create higher Pay Grade positions beyond that which Council authorized in the 2013 annual budget as set forth in Northampton County Home Rule Charter Section 705. 20. The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. 21. The allegation is a conclusion of law to which no responsive pleading is

required under the Pennsylvania Rules of Civil Procedure and is therefore denied. NEW MATTER 22. Paragraphs 1-21 of the Answer are incorporated herein by reference as if

fully set forth. 23. By Pennsylvania statute, District Attorneys in non home rule counties have

the power to appoint such number of assistants, special assistants or deputy assistants as is fixed by the salary board of the county. The salary board shall fix the salary of such assistants. 16 P.S. 1420. 24. The Salary Board in non-Home Rule counties consists of three county

commissioners and the county controller or treasurer. See 16 P.S. 1622. 25. The Northampton County Home Rule Charter gave County Council the

power previously given to the Salary Board to set the number of positions and salaries. -5-

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Article II, Section 202 of the Home Rule Charter states that the

Northampton County Council has the power to 11. establish in accordance with this Charter the salaries and wages of all elected officials, officers and employees, and to set the number of officers and employees of each agency. [Emphasis added.] 27. Northampton County Administrative Code Article XIV, Section 14.04 states:

The rate of pay for officers and employees shall be at an amount provided in a pay schedule established by County Council. The movement of employees covered by the career service regulations, from step to step within pay ranges, and the assignment of classes to pay ranges shall be in accordance with the pay plan contained in the career service regulations and the personnel rules. 28. Article VIII, Section 805 of the Northampton County Home Rule Charter

sets forth the procedure for establishing pay plans and classifications for all career service employees. 29. Under Section 805 of the Charter, the following is the procedure for

establishing career service regulations, including setting salaries for all non union employees: (a) The County Executive is given the power to prepare and submit to the Personnel Commission for its consideration and recommendation: (1) the classifications for all positions of employment; (2) a pay plan for all positions; (b) Within thirty (30) days after the date of submission, the Personnel Commission shall reports its recommendations on them to the [County Executive] and to the County Council. (c) The County Council shall have the power by resolution to approve, reject, or amend the proposed career service regulations.Career service regulations become effective upon approval.

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Career Service Regulations 4 sets forth the method by which a

comprehensive pay plan for all county employees is to be formulated. 31. 32. D.A. Exhibit 3 is the relevant portion of the County Pay Plan for 2013. Northampton County Home Rule Charter Article V, Section 503 specifically

provides that the District Attorney powers concerning his employees is specifically made subject to Article VIII of the Charter, including the current County Pay Plan implemented pursuant to Career Service Regulation 4. 33. Specifically, the District Attorney is bound by the salary provisions set forth

in Home Rule Charter Article VIII, just as non-home rule county district attorneys are subject to the salary boards in their counties. 34. No provision of the Northampton County Home Rule Charter or

Pennsylvania statutes gives the District Attorney the power to create positions or establish salaries. 35. Home Rule Charter Section 801 provides that the purpose of the Personnel

provisions are to impose on elected officials, officers, and employees the highest possible ethical standards. 36. The stated intent of the Charter, therefore, is to make all elected officials and

employees, including the District Attorney, subject to the pay plan provisions of Home Rule Charter Section 805, Administrative Code 14.04 and Career Service Regulation 4. 37. In the 2013 Northampton County Budget, effective January 1, 2013, all

County non-union career service employees, including the specific employees set forth in District Attorneys Exhibits 1, 2, 4 and 5, received a one step increase or bump in their salaries plus a 1% cost of living adjustment (COLA).

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The District Attorneys 2013 budget for salaries was calculated based on his

employees 2012 salaries plus an adjustment for the bump and COLA. 39. The approval of an annual budget for the Office of the District Attorney, or

for any elected official, does not give that official carte blanche authority to independently set salaries for his or her agency in contravention of the salaries promulgated and approved by County Council. 40. District Attorney Exhibits 1 and 2 are PAN requests for mid-year increases

in steps from Pay Grade 04, Step 5E to Pay Grade 04, Step 7G. 41. District Attorney Exhibit 5 is a PAN request for a mid-year increase in steps

from Pay Grade 03, Step 7G to Pay Grade 03, Step 11L. 42. The step increases requested by the District Attorney in his PANs were not

included in his approved 2013 budget for salaries. 43. The District Attorneys request to increase the employee on Exhibit 5 by

four steps is an attempt to create a Pay Grade 04 supervisory position, in which the employee is already acting, and as the District Attorney previously requested in a PAN several days earlier. See Exhibit A attached hereto, the PAN request which was an attached exhibit in the District Attorneys prior mandamus action at C48CV2013 2193 since withdrawn. 44. In effect, the District Attorney is attempting to circumvent the County

Councils power to create positions by increasing the Pay Grade 03 Assistants salary four steps beyond his approved salary to without the approval of Council.

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The District Attorneys requests in all three PANs for mid year changes in

Steps are not permitted under the provisions of the Northampton County Home Rule Charter, the Administrative Code and the Career Regulations. 46. If the District Attorneys budget for salary for 2014 were calculated in the

usual manner using his 2013 approved salary for budgets plus a county-wide step and/or COLA increase, he would not have the money in his salary budget to continue to pay the increased salaries now being requested. 47. The actions of the District Attorney in seeking to increase salaries without

the approval of County Council forces Council to either (a) accept those salary increases and budget an amount higher than it had previously approved; or (b) reduce those salaries and risk a law suit by employees who had been promised and were receiving the higher salaries. 48. The increase in salaries sought by the District Attorney without Council

approval, by presenting them with a fait accompli, significantly restricts the independent power of Council to promulgate budgets. 49. The District Attorneys action in increasing the specific steps of his

Assistants without following promulgated county-wide procedures and without the approval of County Council violates the Home Rule Charter, the Administrative Code and the career service regulations and personnel rules governing salaries, and is therefor an illegal, ultra vires act. 50. The defendants are without power to implement the ultra vires PAN

requests of the District Attorney and, in fact ,they could be removed from office under Home Rule Charter Section 8.12 for acting in violation of the Charter provisions.

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Under Article II, Section 302 of the Northampton County Home Rule

Charter, the County Executive shall(1) execute and enforce all ordinances of the County; 52. Section 14.01 of the Administrative Code states The County

Executiveshall establish and administer the personnel management program consistent with the provisions of the Charter, this Code and rule (sic.) and regulations adopted by resolution of County Council. 53. The County Executive, and the departments under his direction, therefor

have the power to enforce the provisions of the Home Rule Charter, Administrative Code, Personnel Procedures Manual and other applicable County ordinances and regulations by denying the PAN requests of the District Attorney unless and until he receives approval for such changes by County Council. WHEREFORE, John Stoffa, County Executive, on behalf of himself and all Departments and agencies under his supervision, request this Honorable Court to deny and dismiss the District Attorneys Complaint in Mandamus.

_______________________________________ Daniel G. Spengler, Esq. Attorney for Defendant Attorney I.D. #25776 110 East Main Street Bath, PA 18014 (610) 837-7855 Fax: (610) 837-1566

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VERIFICATION JOHN STOFFA hereby states that he one of the defendants in this action, that he is authorized to respond on behalf of all defendants, and that the statements of fact made in the foregoing Answer are true and correct to the best of his information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities.

Date: March ____, 2013

____________________________________ John Stoffa County Executive Defendant

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