PLAINS TWP. — When she first learned she would likely be a member of the Wilkes-Barre Area School Board, Melissa Etzle Patla conceded she would likely be the lone board critic of the ongoing high school consolidation plan.
That reality became glaring at Monday’s board meeting when she made a motion to put the consolidation question up to voters via referendum.
The idea directly reflected a petition being circulated by the Save Our Schools organization. The petition seeks to put this question on the ballot: “Should Coughlin and Meyers be consolidated into a new high school in Plains, to the exclusion of GAR, at the projected cost of $101 to $118 million?”
None of the other six members present offered a second, effectively killing Patla’s motion.
It was the second time a referendum motion failed. When the board first voted in 2016 to consolidate Meyers and Coughlin, Christine Katscok — who did not run for re-election last year, creating the opening Patla filled — made a motion to put four non-binding questions on the ballot regarding the fate of the district’s three high schools. That motion got a vote, but fell short of a majority.
District Solicitor Ray Wendolowski has repeatedly warned such non-binding referenda are illegal. Asked why, he provided a copy of the “Referendum Handbook” published by the Pennsylvania Governor’s Center for Local Government Services.
The handbook notes: “There are approximately two dozen laws authorizing referenda on various issues.” When it comes to school construction, it explicitly states “advisory questions on school building construction are unlawful.”
That ruling, the book says, hinges primarily on an appeals court decision in a case between the Hempfield School District and the Election Board of Lancaster County.
The county board of elections — responding to a request from a citizen group — planned to put a non-binding referendum on the ballot asking if voters approved of a plan to build a new high school. The Hempfield school board filed a request to prohibit the referendum, but the Lancaster County Court of Common Pleas rejected that request. The board appealed. A judge then reversed the lower court’s ruling and blocked the referendum from getting on the ballot.
The judge noted Pennsylvania courts had regularly ruled “there cannot be a non-binding referendum by ballot unless there is a specific constitutional or statutory authorization for it.”
“One of the prices paid for the creation of a representative democracy is the vesting by the electorate of trust and responsibility in its elected representatives,” the decision notes. “Discretion is placed within the hands of the municipal legislators and we must accept the lawful exercise of this discretion. The efficiency of government, its stability, and the protection of the public at large necessitates the creation of certain categories wherein the legislative prerogative is unfettered by the initiative and referendum processes.”
Voters, the judge concluded, can still show disapproval “at the ballot box” by voting against those who support an unpopular decision.
It’s worth noting Hempfield and other cases cited by the judge involved referenda proposed by election boards. At no point does the handbook or the judge’s ruling in Hempfield explicitly bar a school board itself from putting a non-binding referendum on the ballot.
Yet Wendolowski said the repeated rulings against non-binding referenda mean that county election boards will not risk putting an advisory referendum on a ballot regardless of who proposes it.
“If the board attempts to put this on the ballot, we would have to go through the board of elections to do it, and the Luzerne County Board of Elections wouldn’t even consider an advisory referendum,” Wendolowski said.
Luzerne County assistant solicitor Michael Butera, who handles election matters, agreed — and then some.
“We’ve been asked many times since I’ve been the attorney for the election board to put all kinds of referenda on the ballot,” Butera said. “Pennsylvania is very limited in the type of referendum that can be put on the ballot. We cannot put any advisory referendum on the ballot.”
In fact, Butera said, even if a vote on school consolidation were proposed as a binding referendum, it still would be illegal because there is no state law authorizing such a vote. “You can’t do that,” he said.
There is one clear path to a referendum in this case. Act 34 of 1973, the state law regarding school construction, opens with a rather firm warning: “… The board of school directors of any school district … shall not construct, enter into a contract to construct or enter into a contract to lease a new school building or substantial addition to an existing school building without the consent of the electors obtained by referendum … .”
As mandatory as that sounds, the sentence concludes with an out: ” … or without holding a public hearing as hereinafter provided.”
Every new school built and every major renovation of an existing school in Luzerne County since Act 34 passed has been done without an Act 34 referendum. Districts here and statewide have consistently opted for “Act 34 hearings” instead, from Hazleton Area’s district-wide renovation launched in 1995 to Dallas High School — the county’s newest high school building — where classes began in 2011.
Reach Mark Guydish at 570-991-6112 or on Twitter @TLMarkGuydish