IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA. CIVIL DIVISION JOHN JACK WILLIAMS, Councilman, CHARLENE STANTON, Councilwoman City of Johnstown, Petitioners, No. 2016-0332 vs. Petition for Writ of Mandamus FRANK J. JANAKOVIC, Mayor, NUNZIO T. JOHNCOLA, Councilman, MARIE MOCK, Councilwoman, DAVID VITOVICH, Councilman, PETER VIZZA, Councilman City of Johnstown, and the CITY OF JOHNSTOWN, CAMBRIA COUNTY, a Pennsylvania Municipal Government, Opinion and Order Respondents. OPINION AND ORDER ‘Krumenacker, P.J.: Petitioners John Jack Williams and Charlene Stanton (Petitioners), who are residents of the City of Johnstown (City) and serve on City Council, filed this Action Mandamus challenging the decision of the majority of City Council to hire Melissa Komar (Komar) as City Manager for a one-year term. The respondents are: Frank J. Janakovic, ‘Mayor of the City of Johnstown; City council members Nunzio T. Johncola, Marie Mock, David Vitovich, and Peter Vizza; and the City of Johnstown (collectively Respondents). ‘The factual background is undisputed. In early December 2015, allegations arose regarding the misappropriation of City funds by then City Manager Carlos Gunby (Gunby), Gunby resigned effective December 9, 2105, and by way of Amended Resolution 9791 Gunby’s resignation was accepted and Komar was hired as City Manager for a one-year term.Pet. Ex. B. Prior to being amended on motion by then councilman Frederick Mickel and seconded by then councilman William Gentile, Resolution 9791 accepted Gunby’s resignation and appointed Komar Interim City Manager. Id. On several occasions after December 9" ‘members of council indicated they intended to engage in a search for a long-term city ‘manager during that one-year period using a search committee similar to the one formed uring the last search for a city manager and to include members of council, the community, and business leaders. Petitioners’ challenge to Komar’s hiring is that Respondents misapplied ‘the City Administrative Code in concluding that Komar met the qualifications for the position. ‘A hearing on the Petition in Mandamus as held March 22, 2016, during which the Petitioners asserted that the Respondents acted in violation of the City’s Home Rule Charter and City Ordinances in hiring Komar as City Manager when she lacks the required educational background and work experience. In response the Respondents argue: the Petitioners lack standing to bring this action; mandamus is not proper here since it is being used to challenge the discretionary acts of City Couneil; and that even if mandamus is a proper means to challenge Komar's hiring Council acted properly within its discretion to dctermine that she met the education and work experience requirements DISCUSSION Initially Respondents challenge the Petitioners’ standing to pursue this action asserting that they have not suffered a direct injury resulting in a lack general standing and further that they fail to meet the five part test for taxpayer standing. It is elcar that Petitioners Jack traditional standing as their interest in this matter is not substantial, direct, and immediate. Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa, 168, 192, 346 A.2d 269, Page 2 of 16281 (1975). In Jnre Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979), our Supreme Court recognized an exception to general standing where a taxpayer, who otherwise lacks standing, is allowed to bring an action if the following factors are present: 1) The government action would otherwise go unchallenged; 2) Those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action; 3) Judicial relief is appropriate; 4) Redress through other channels is unavailable, and; 5) No other persons are better situated to assert the claim. Id, at 443-44, 409 A.2d at 851-52. All five factors must be satisfied to grant standing, Black Ash Servs., Inc, v. DuBois Area Sch. Dist,, 764 A.2d 672, 675 (Pa. Cmwith. 2000). In Seeton v, Pennsylvania Game Comm'n, 594 Pa. 563, 937 A.2d 1028 (2007), our Supreme Court explained the rationale of the exception stating We recognized [in Biester}, however, that “[elertain cases exist which grant standing to taxpayers where their interest arguably does not meet the above requirements of [Wm. Penn Parking Garage y. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 281 (1975)] “[I]n those cases ..., the granting of standing where the degree of causal connection between the action complained of and the injury alleged is small, can be explained by the policy behind granting taxpayers standing,” Id, The “fundamental reason for granting standiag” in such cases “is simply that otherwise a large body of governmental activity would be unchallenged in the courts.” Id, (quoting Faden v. Phila, Housing Auth, 424 Pa. 273, 227 A.2d 619, 621-22 (1967)). Thus, taxpayer standing may be granted when it “ensure{s} .. judicial review which would otherwise not occur,” a circumstance that arises where “those directly and immediately affected by the complained of expenditures are beneficially affected as opposed to adversely affected.” Id, Id. at 570-71, 937 A.2d at 1032. Thus even where traditional notions of standing would deny a plaintiff standing, a court can still confer upon a taxpayer when it is the only means by which a governmental decision could be challenged. In Seeton the Court found that a taxpayer had standing to bring mandamus complaint, for a determination that the State Game Commission improperly concluded it lacked authority Page 3 of 16to interfere with alleged violations by a commercial hunting reserve of provisions governing the taking of protected mammals after the Commission rejected her contention that wild boar at the reserve were protected mammals under game and wildlife laws. The Court in applying the five part test concluded that there appeared to be no one better suited than the taxpayer to challenge the asserted non-enforcement, and there were no alternative means to invoke judicial review of the important issue. Id. In Rainey v. Borough of Derry, 163 Pa. Cmwith. 606, 612, 641 A.2d 698, 701 (1994), taxpayers brought suit alleging that the borough violated its competitive bidding process by conducting postbid negotiations and waiving defects in the apparent lowest bidder’s bid for a sewage treatment plant expansion project. The Commonwealth Court affirmed the trial court holding that the taxpayers had standing but that no violation occurred. In addressing the five- part test the Commonwealth Court adopted the lower court opinion, which opined that In this case, all five requirements are present. As noted above, disappointed bidders generally do not have standing to challenge the bidding process. ‘Therefore, the governmental action in this case would otherwise go unchallenged. The only entity that is directly and immediately affected by the award of the bid, other than the taxpayers, is the successful bidder, who is not likely to challenge the borough’s action. Judicial relief is appropriate, if the taxpayers are successful on the merits. There is no other means of challenging the award. Finally, because disappointed bidders who are not taxpayers cannot challenge government action that improperly awards a contract to a particular bidder, taxpayers are in the best position to challenge bid award improprieties. Id. at 612, 641 A.2d at 701 (citations omitted). See also, Nunemacher v. Borough of Middletown, 759 A.2d 57, 59 (Pa. Cmwith. 2000) (disappointed bidder's employee, who was not a resident or taxpayer of borough, did not have standing to challenge award of borough contract to suecessful bidder pursuant to Biester exception where borough taxpayers, and not disappointed bidder’s employee, were best situated to assert claim that borough did not award contract properly or legally). Page 4 of 16Applying the Biester five-part test to the present matter reveals the following: 1) Absent this challenge Council’s hiring action would otherwise go unchallenged. 2) Those directly and immediately affected by the complained of violations are beneficially affected and not inclined to challenge the action. Here the person most benefited is Komar thus it is unlikely she would challenge the action. Respondents who approved the hiring would not be inclined to after the fact challenge their decision. Finally, there were no other applicants for the position and so there exists no one harmed directly to challenge the decision. 3) Judicial relief is appropriate if Petitioners are successful on the merits. 4) Redress through other channels is unavailable. 5) Finally, no other persons are better situated to assert the claim. As members of council, residents, and taxpayers, no one else is better positioned to make the challenge then Petitioners, Accordingly, the Petitioners have satisfied all five elements of the taxpayer standing test and thus have standing to pursue this challenge. Respondents next argue that a mandamus action cannot be used to force a public official to exercise their discretion in any particular way, which they assert is what the Petitioners seek, and so the action must be dismissed. It is well settled that Mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate remedy at law.... Where the action sought to be compelled is discretionary, mandamus will not lie to control that discretionary act, .. but courts will review the exercise of the actor's discretion where it is arbitrary or fraudulently exercised or is based upon a mistaken view of the law. Pennsylvania State Ass'n of Cty. Comm’rs v. Com., 545 Pa. 324, 329-30, 681 A.2d 699, 701- 02 (1996)(quoting County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 372-73, 490 A.2d 402, 408 (1985)). Mandamus cannot be “used to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of an action already taken.” Pennsylvania Dental Association v. Insurance Department, 512 Pa. 217, 227- 28, 516 A.2d 647, 652 (1986). Where a public official “is clothed with discretionary powers, and has exercised those powers, mandamus will not lie to compel a revision of the decision Page 5 of 16resulting from such exercise of discretion, though in fact, the decision may be wrong.” Anderson v. Philadelphia, 348 Pa, 583, 36 A.2d 442, 444 (1944), As noted however there is an exception to a court’s ability to review the discretionary action of a public official where the petitioner asserts that the discretionary act was arbitrary, fraudulently done, or based upon a mistaken view or application of the law. See, Tanenbaum ¥.D’Ascenzo, 356 Pa, 260, 51 A.2d 757, 758 (1947); Maxwell v. Board of School Directors of School District of Farrell, 381 Pa. 561, 566, 112 A.2d 192, 195 (1955); Seeton v. Adams, 50 A.3d 268, 274-75 (Pa. Cmvwith. 2012). As such when discretion has been exercised, the courts may review such exercise to determine whether or not it was arbitrary or fraudulent or whether or not it was based upon an error of law. Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956). Here, although inartfully pleaded by pro se litigants, the Petition challenges Council’s actions as being either arbitrary or a misapplication of the City’s ordinances related to hiring the City Manager. Accordingly, mandamus is proper within this narrow exception to determine if the exercise of discretion was done in an arbitrary manner ot based upon a misapplication of the law. See, Battiste v. Borough of E, McKeesport, 94 A.3d 418 (Pa. Cmwith. 2014), reargument en banc denied (July 30, 2014), reconsideration denied (July 30, 2014)(summary judgment on landlord’s mandamus action improperly granted where genuine issues of material fact existed as to whether a landlord performed work outside the building permit issued to renovate apartment building, and thus whether building code officer issued stop work order arbitrarily); Philadelphia Cty. Intermediate Unit No. 26 v. Commonwealth of Pennsylvania, Dep't of Education, 60 Pa, Cmwith. 546, 555, 432 A.2d 1121, 1127 (1981) (Department’s preliminary objections overruled as to certain issues finding that the petitioners averred that the Department arbitrarily and fraudulently refused to reimburse them for special Page 6 of 16educational costs from prior years, and that Sections 1373 and 2509 of the Public School Code imposed a duty on the Department to make such reimbursement so that the mandamus petition could not be dismissed without deciding the issue). On this issue Petitioners contend that the applicable City ordinance requires an applicant to possess, at a minimum, a master’s degree and five years experience as a city manager or assistant city manager. Respondents argue that the ordinance grants Council the discretion to determine that an applicant who does not possess these specific qualifications possesses the equivalent to each and that here Council exercised that discretion and found Komar possessed either the exact qualification or its equivalent. To determine if Respondents acted arbitrarily or misapplied the City’s ordinances the Court must first determine what the ordinance requires. An exercise in statutory interpretation. requires the court to read a statute as a whole and consider the grammatical context in which the word to be interpreted is used. Commonwealth v. Berryman, 437 Pa, Super. 258, 649 A.2d 961, 965 (1994) (en banc) (indicating that words of a statute must be considered in their grammatical context and that the sections and sentences of the whole statute comprises a composite of the statute's stated purpose). See also, 1 Pa. C.S. § 1922(2) (indicating that the legislature intends entire statute to be effective). “The principles of statutory construction indicate that ‘[wJhenever possible each word in a statutory provision is to be given meaning and not to be treated as surplusage.’ * Commonwealth v, Tome, 737 A.2d 1239, 1241 (Pa. Super. 1999) (citation omitted). Words in statutes are to be given effect in accordance with their plain and common meaning. Commonwealth v. Ostrosky, 866 A.2d 423, 427 (Pa. Super. 2005). See also, 1 Pa. C.S. § 1903 (indicating words shall be given their ordinary meaning). Finally, “[wJhen the words of a statute are clear and free from all ambiguity, the letter of it is Page 7 of 16not to be disregarded under the pretext of pursuing its spirit.” Meridian Trust Co. v. Commonwealth, 149 Pa. Cmwith. 571, 613 A.2d 654 (1992). See also, 1 Pa. C.S. § 1921(b). Here the applicable statutes are found in the City’s Home Rule Charter (Charter) and Administrative Code (Code). The Charter in section 601 (b) provides The City Manager shall be hired on the basis of demonstrated professional competence and education in public management. Further job qualifications shall be defined in the Administrative Code. City of Johnstown Home Rule Charter § 601(b). The relevant provision of the City Administrative Code provides that The City Manager shall be hired on the basis of demonstrated professional competence and education in public management which shall include but not be limited to a masters degree in governmental administration or the equivalent, five (5) years of progressive responsible experience in local government including experience as a City Manager, assistant City Manager, or the equivalent. City of Johnstown Administrative Code § 402. Respondents contend that the only required qualifications set for in section 402 are that the city manager “shall be hired on the basis of demonstrated professional competence and education in public management.” Respondents argue that the “which shall include but, not be limited to” language does not set forth mandatory qualifications but only serves as examples of the things that will demonstrate “professional competence and education in public management.” As such if the candidate demonstrates professional competence and education in public management as determined by Council in the exercise of its discretion that is sufficient. Respondents contend that they acted properly in determining that Komar is qualified under section 402. Respondents note that Komar has a Bachelor of Science (B.S.) in Geography from the University of Pittsburgh at Johnstown, has served for 13 years in City Page 8 of 16government including as Assistant City Manager since April 17, 2015, and prior to that as GIS Coordinator, and Land Management Coordinator. Respondents read “a masters degree in. governmental administration or the equivalent” to give Council discretion to determine what constitutes the equivalent ofa masters degree which they have done here in concluding that Komar’s experience plus her bachelor’s degree is equivalent to a masters degree in governmental administration. Respondents contend that her extensive experience within multiple departments in the City is more valuable than a degree. With respect to professional competence, Respondents argue that the five years progressive experience is met here even though she has less than one-year experience as assistant city manager as section 402 does not require five years experience as a city manager or assistant city manager but only requires that the applicant have five years progressive responsible experience in local government that includes some time as city manager or assistant manager. Petitioners argue that Respondents’ actions are based upon a misapplication of section 402 which requires an applicant to possess demonstrated professional competence through five years progressive responsible experience in local government and education in public management demonstrated by the possession of a master’s degree preferably in the field of governmental administration. Petitioners agree that Council has discretion to determine what constitutes the equivalent of each requirement but that the language of section 402 limits such discretion to considering what other master level degree is equivalent to a master’s in governmental administration for the education requirement and what work experience is equivalent to that of city manager or assistant city manager for the professional competence qualification. Specifically, Petitioners argue that the language of section 402 requires a demonstrated education in public management through possession of a master’s degree in Page 9 of 16governmental administration or an equivalent master’s degree and that Respondents cannot determine that a non master’s level degree plus work experience or work experience alone is the equivalent of a master’s degree. As to demonstrated professional competence Petitioners concede Council has discretion to determine what constitutes five years of progressive responsible experience in local government. Petitioners nonetheless argue that Council improperly exercised that discretion in concluding Komar possessed such experience where she lacks five years experience as either city manager or assistant city manager or the equivalent. Petitioners argue that Komar never served as GIS Coordinator or Land Management Coordinator but that she was a GIS Specialist and Land Management Specialist and thus question her managerial qualifications, however they do not dispute that the City has employed her for 13 years in various roles. Both section 601 and section 402 require the city manager to be hired “on the basis of demonstrated professional competence and education in public management.” See, Charter § 601 and Code § 402. Section 601 states that additional qualifications shall be defined in the Code, which requires Council to enact an ordinance further delineating the necessary qualifications. Charter § 601. Council complied with this mandate and additional qualifications are set forth in section 402 of the Code that in part reads demonstrated professional competence and education in public management which shall include but not be limited to a masters degree in governmental administration or the equivalent, five (5) years of progressive responsible experience in local government including experience as a City Manager, assistant City Manager, or the equivalent. Code § 402. That the additional qualifications are mandatory is clear from the language “which shall include but not be limited to” which cannot logically be read in any manner Page 10 of 16other than setting forth an imperative mandate that an applicant possess at least the ‘qualifications that follow this phrase. This language is clear that itis setting forth the minimum requirements for the position but that Council may add additional requirements, as they deem appropriate, as it does not limit the qualification to only those enumerated. Thus Council can, when selecting a candidate to hire, require additional qualification but cannot go below this minimum. If this language were read to give a permissive meaning to the language “which shail include but not be limited to” then section 402 would establish no additional requirements which would be contrary to the dictates of section 601 additional qualifications be enumerated. See, Div. $5, Amalgamated Transit Union v, Port Auth, of Allegheny Cty. 417 Pa, 299, 302, 208 A.2d 271, 272 (1965)(“The word shall is, however, generally regarded «as imperative. We look to the intention and purpose of the statute in determining whether the word shall is to be given a permissive or imperative meaning,”) Section 402 requires that an applicant both demonstrate professional competence through five years of progressive responsible experience in local government that includes experience as a city manager, assistant city manager, or the equivalent and demonstrate an education in public management by possessing a master’s degree in governmental administration or the equivalent. The “or equivalent” language in each clause must be read in conjunction with the language immediately preceding it that establishes the respective education and professional competence requirement and not read in a manner that nullifies these requirements, “General expressions used in a statute are restricted to things and persons similar to those specifically enumerated in the language preceding the general expressions. . ” Butler Fair & Agricultural Association v. Butler School District, 389 Pa. 169, 178, 132 A.2d 214, 219 (1957) (quoting Frederick’s Estate, 333 Pa, 327, 331, 5 A.2d 91, 93 (1939). Page 11 of 16‘See also, 1 Pa. C.S. § 1903 (words shall be construed to take their meanings and be restricted by preceding particular words); Commonwealth of Pennsylvania by Creamer v. Monumental Properties, Inc., 459 Pa, 450, 479-80, 329 A.2d 812, 827 (1974). Further, unless plainly meant otherwise a modifying clause operates only upon the phrase preceding it. Equitable Gas Co. v. City of Pittsburgh, 507 Pa, 53, 60, 488 A.2d 270, 273 (1985). Here the general expression Janguage “or equivalent” follows both the requirement of a master’s degree in governmental administration and the requirement that work experience include experience as city manager ot assistant city manager. This language must be read as being limited by the preceding language to only include a degree or position of the same general nature or class of that specifically enumerated, that is a degree at the same or greater level and experience that regardless of ttle is the same as a city manager or assistant city manager. Butler Fair, at 178, 132.A.24 at 219. As to the professional competence requirement an applicant must have five years of progressive responsible experience in local government that includes experience in the listed jobs or the equivalent of those jobs. This language docs not mandate that the entire five years of experience be as a city manager or assistant city manager, in fact this language does not place any requirement as to how much of the five years is to have been served in either role. Council has broad discretion based upon this language to determine what constitutes the equivalent experience of a city manager or assistant city manager. For example, Council could conclude that while an applicant lacks experience as a city manager or assistant city manager, their experience in other positions in government with managerial or financial responsibilities is equivalent. What Council cannot do is conclude that a person with less than five years experience in local government, regardless of their other experience, meets this quali Page 12 of 16as the requirement for professional competence “shall include but not be limited to ... five (5) years of progressive responsible experience in local government.” Code § 402. Thus Council could not conclude that someone with twenty years experience managing a business but with no experience in local government meets the professional competence requirement, Here there is no question that Komar has in excess of five years experience in local ‘government with the City, including experience as assistant city manger from April 17, 2015 until December 9, 2015. The parties may differ as to what Komar’s prior job titles were but it is for council in the exercise of its discretion to determine if that experience is equivalent to that of a city manager or assistant city manger. This Court cannot review that exercise under the narrow avenue for review provided for in Tanenbaum. In addition to requiring that an applicant demonstrate professional competence, both sections 601 and 402 require an applicant to possess an education in public management, Section 402 defines an education in public management to require “a masters degree in governmental administration or the equivalent.” Code § 402. Respondents argue that in this clause the “or equivalent” language must be read to give Council broad discretion to determine what is equivalent to a master’s degree to include permitting them to substitute a lesser degree plus work experience or just work experience for the advanced degree. Respondents’ suggested interpretation is contrary to the plain language of sections 601 and 402 and would vitiate the requirement that an applicant possess both professional competence and an education in public management. If Respondents” interpretation was correct then Council could conelude that a person who has no educational background in public management, indeed a person with no formal education at all, is qualified solely on the basis of work experience. This result is undeniably in contlict with the plain language that Page 13 of 16requires both professional competence through work experience and an education in public ‘management. It is clear from the language that if an applicant with a master’s degree in governmental administration lacked the necessary five years experience Council could not rely on the “or equivalent” language in the professional competence section to permit the master’s degree to substitute for the work experience. Similarly then Council cannot permit work experience to substitute for the education requirement since such an interpretation would make the inclusion of an education qualification a mere surplusage and result in an inconsistency within sections 601 and 402. The language of sections 601 and 402 plainly requires an applicant to possess both professional competence and an education in public management. In adopting section 402 a prior Council defined these terms to include at a minimum a master’s degree and five years work experience in local government. While Couneil has discretion to determine what master’s or doctorate degrees are equivalent to a master’s in governmental administration it cannot do away with the requirement that an applicant possess a master’s degree in some field. Similarly Council has discretion to determine what work experience is equivalent to that of a city manager or assistant city manager but cannot do away with the requirement that an applicant possess five years progressive responsible experience in local government that includes time as a city manager, assistant city manager or the equivalent. Council is free, as noted by the Petitioners, to amend section 402 and alter the minimum qualifications if deemed appropriate, however the current language requires an applicant to possess both a minimum of amaster’s degree and five years work experience. Here the parties agree that Komar possesses a B.S. in Geography but that she does not possess a master’s degree in any field. Komar’s bachelor's degree is insufficient to meet the Page 14 of 16requirement for an applicant to have an education in public management as demonstrated by the possession of a master’s level degree and thus Respondents either misapplied section 402 in determining Komar was qualified or acted arbitrarily in ignoring the education requirement Accordingly, Komar’s hiring and her contract with the City are void ab initio. ‘This decision does not bar Council from appointing Komar as interim or acting city ‘manager while a search begins for a new city manager, as section 402 does not apply to that situation. Indeed this has been council’s past practice and appears to have been the plan here as demonstrated by the original resolution 9791. Pet. Ex. B, Neither should this Opinion be read as being critical of Komar or of questioning her dedication to improving the City or her performance over the past several months in which she has served as City Manager. The Court’s decision is based solely on Council’s misapplication of section 402. Accordingly, for the reasons contained in the foregoing Opinion, the following Order is entered: Page 15 of 16IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN JACK WILLIAMS, Councilman, * CHARLENE STANTON, Councilwoman * City of Johnstown, * + Petitioners, * No. 2016-0332 vs. . * Petition for Writ of Mandamus FRANK J. JANAKOVIC, Mayor, * NUNZIO T. JOHNCOLA, Councilman, * Opinion and Order MARIE MOCK, Councilwoman, DAVID * VITOVICH, Councilman, PETER VIZZA, * Councilman City of Johnstown, and the u CITY OF JOHNSTOWN, CAMBRIA * COUNTY, a Pennsylvania Municipal ‘| Government, : Respondents ORDER AND NOW, this ADtay of March 2016, for the reasons contained in the foregoing Opinion it is hereby ORDERED, DIRECTED, AND DECREED that the Petition for Writ of Mandamus is GRANTED IN PART AND DENIED IN PART AS FOLLOWS: 1) The Petition is GRANTED in that Johnstown City Couneil hiring of Melissa Komar as City Manager and the City of Johnstown’s Contract with Melissa Komar for the position of City Manager is declared void ab initio. 2) The Petition is DENIED as to all other matters. 3) All parties shall bear their own costs of this litigation. BY THE COURT;, jenaicker, II, PJ. Page 16 of 16