Luzerne County Controller Walter Griffith has discovered an error that will boot out four of the five county Flood Protection Authority members and force their replacements to vote again on every decision the authority has made this year, officials say.
"It's something that never should have happened. We're doing what we have to now to get it straightened out," said county Solicitor Vito DeLuca.
At this point, county Planning/Zoning Director Adrian Merolli is the only board member permitted to serve on the authority, which oversees the Wyoming Valley Levee and a levee fee that funds the flood control system's maintenance and upkeep.
County Councilman Stephen A. Urban, who serves as authority chairman, and citizen board members William Falls, Doug Ayers and Kevin O'Brien cannot serve because their appointments were invalid, DeLuca said.
The problem stems from article incorporation papers that must be approved by the state, he said.
The papers said five people must sit on the board: the planning/zoning director, assistant county engineer and three commissioners.
Anticipating the elimination of the three commissioners and other home rule changes, the prior county government administration said the incorporation papers were changed to allow five citizens to serve in the unpaid seats.
Merolli and Urban stayed on in their unexpired terms. Prior commissioners selected Falls and Ayers at their last meeting in December 2011, and council members appointed O'Brien after a public interview of applicants.
DeLuca said an assistant solicitor had been directed to help the authority and commissioners to execute the change, but DeLuca reviewed all documentation and concluded it "has not been done properly."
Griffith said he contacted the Department of State and received a letter sent to county assistant solicitor Stephen Menn on Jan. 3 indicating the filing seeking an amendment was returned citing incompletion.
"I'm not saying anything was done illegally, but it's very clear the state department sent a letter back to the county saying it didn't accept the articles of incorporation," said Griffith, noting he has asked the county District Attorney's Office to review the matter.
Because the authority board's structure must revert to its original composition, an assistant county engineer must be put in one of the seats. Chris Belleman previously filled that slot.
The county's home rule charter indicates the county manager selects appointees to the three authority seats previously filled by commissioners, with council confirmation.
DeLuca said replacement members may opt to make past authority actions valid by ratifying them, but he acknowledged this is uncharted territory.
The authority has approved dozens of payments to outside companies for work on flood-control projects this year and recently selected the county's tax claim operator, Northeast Revenue Services, to handle collection of the levee fee, which is in the process of being mailed for 2012.
DeLuca said his office is developing a corrective plan. The error would have been "catastrophic" if the authority had floated a bond, he said.
"For all the things that went right with this home rule transition from a legal and administrative perspective, this is one that went wrong," DeLuca said.
Council Chairman Tim McGinley said he's confident council and the administration will act swiftly on any actions required to make the authority legally compliant.