Supervisors Minutes November 19, 2012

Westfall Township, Matamoras, PA

November 19, 2012

TheWestfall Township Board of Supervisors held a Special meeting on Monday, November 19, 2012 at 7:00 PM. The meeting was held at the TownshipBuilding on Delaware Drive and La Barr Lane, WestfallTownship.

Those present were Chairman, Robert Ewbank; Vice-chairman, Paul Fischer; Supervisors Raymond Banach, Larry Flansburg, and Robert Melvin; Solicitor, Robert Bernathy and Secretary, Lisa Green. Also present were Bill Schneider, Scott Myer, John Schneider, Dave Jones, Tony Brunovsky, Pete Lovelace, Rick Lander, Bill Hessling, Luis Bocaletti, Rob Llewellyn, Debra Banach, Laurie Mai, Lisa Mickles and Beth Brelje.

AGENDA:  Motion to approve the agenda was made by Supervisor Banach. Motion is seconded by Supervisor Melvin and carried with all in favor.



Introduce 2013 Proposed Budget: Chairman Ewbank said the proposed budget for 2013 is calling for a general fund millage of 16.7 and because we are above the 14 mil maximum we need to go to court for the other 2.7 mils. This has been done for the last several years. The total general fund budget is $1,091,833. The bottom line is the total millage is 31.2 mils which is the same as 2012. There will be no tax increase, millage will be moved around. Supervisor Banach asked to talk about the joint meeting because since the police department didn’t cut their budget we have to go back to the 2012 budget number which is a shortfall of $10,655. Supervisor Banach said he feels as a resident, tax payer, and supervisor he’s being held hostage by the Police Department, being that there are all different issues with litigation, one of them being Dombrosky; which some of that came from the Police Commission. Vice-chairman Fischer said the Commission was found not liable; it was the Supervisors that were found liable. Supervisor Banach said if the Commission gave Mr. Dombrosky his job back there would be no Dombrosky problem. Vice-chairman Fischer asked for it not to be placed on the Commission. Supervisor Banach said there are Supervisors wearing dual hats and sitting on the Commission and with that said we have something on our plate which we shouldn’t have and coming up with $10,655 is a burden to our taxpayers. Chairman Ewbank said we were also misled by the Borough of Matamoras because we were under the impression that they had approved the 2013 police budget and we found out last week that they were actually using the 2012 figures. Had we known that we probably could have made changes while we did our budget but we were looking at a big increase that now is probably not going to happen. Supervisor Melvin said when Matamoras started their budget process in September it was before the Police Department presented their budget. Discussion followed about the budgeting process between the Police Department, Matamoras Borough and Westfall Township. Supervisor Banach said since 2008 when he began being a Supervisor he’s been told that there was a contract between the officers and yet he has never seen that although he’s asked for it. Questioning how we were supposed to prepare our budget and come up with the cash when they keep getting increases.

Supervisor Melvin said he agrees that things should have been communicated better. Chairman Ewbank read a portion of the letter received from Attorney Tom Mincer which spoke of a four-year contract beginning January 1, 2012 and ending on December 31, 2015 where a 3% raise was given each year. Chairman Ewbank asked if anyone on the board has ever seen the contract stated he would like to see it. Further commenting how are we supposed to abide by the agreement what we have never seen it. No one has ever been given a copy of the contract. Supervisor Flansburg said if we are giving out raises we need to be a part of that agreement. Supervisor Melvin said it’s a little weird because you have a Police Commission that’s a semi-independent body constructed to figure out how to run the Police Department then you have the same people on their town Board and the Borough Council. He believes the salary increases were done in good faith and when you compare salaries to other police departments it was considered to be fair and reasonable. Further discussion followed. Supervisor Flansburg said his problem is there’s going to be new cars and new things however you can’t be promising people things that you don’t have. It needs to come to the Supervisors too and the board needs to become part of the process. Supervisor Banach questioned who the Supervisors were that signed the first and second agreements. Chairman Ewbank said he did not want to single out Vice-chairman Fischer however since he’s been on the Police Commission the longest he asked him if he was aware of the agreement and did he not feel the supervisors have a right to know about it. Vice-chairman Fischer said he was not aware that the supervisors did not have a copy of the agreement. Supervisor Flansburg said we asked for it and were told today that we could not have it. Solicitor Bernathy said this is a public record and that the negotiations leading up to the contracts are privileged however once the contract is finalized it is his understanding it becomes a matter of public record and can’t be disseminated. Supervisor Flansburg said he believes that raises are important and have a place however we need to be a part of the process. Solicitor Bernathy said he spoke to Attorney Mincer today and he was prepared to release the agreement however James Baron the Attorney for the collective bargaining unit said that we could not have. Supervisor Banach said that we in turn have contacted PSATS and they asked us to fill out a Right to Know request form because it is public record. Supervisor Banach handed Vice-chairman Fischer the Right to Know form requesting the collective bargaining agreement. Chairman Ewbank said it is public record and we need to be provided with it. Supervisor Melvin said he does not believe there was any cloak and dagger scheme he believes it was done in good faith. Supervisor Banach said if we don’t have the money now were not going to have it next year. Supervisor Flansburg said Matamoros had said that they were maxed out on their mils. Supervisor Melvin said the writing on the wall is where the state wants us to go which is that EIT, not saying that that’s what we’re deciding to do. Supervisor Banach said that goes against everything he believes in as a public official we have strived to either maintain or lower taxes, or only spend what is necessary to provide the services that we require. Further stating that the Police Officers work for the residents of Westfall Township and Matamoras Borough and the taxpayers pay their salaries, and it is the Supervisors job to maintain the budget and work within those constraints. Because if we don’t we’re done, we cannot afford to keep increasing the budget. Supervisor Banach said it would be fine if we didn’t have the lawsuits to pay for. Chairman Ewbank said it’s going to come down to if we cannot meet the budget were going to have to notify the Eastern Pike Regional Police Commission that we’re going to pull out. Stating that it could be an open ended letter that we don’t have to do it but if we can’t find the money we will. Solicitor Bernathy confirmed that the letter needs to be sent one year in advance. Supervisor Melvin said when this settlement goes down next year things will look better. Supervisor Banach said that the question on board is how we come up with the $10,655 so we don’t break the contract. Mr. Myer said at the risk of sounding obvious you either need to generate more income or cut expenses. What the board can do is add to the transfer from prior year surplus which were already taking. Supervisor Melvin questioned the assessment from Taco Bell and Monroe Optical and wondered how much the revenue stream would be from those buildings. Mr. Myer said real estate tax revenue is not an exact science and generally in the past it has been our policy to use that as a cushion. Supervisor Melvin said he realizes we don’t want to raise taxes however as different projects come in to town we will have the increase real estate taxes. However he understands that we can’t count on that. Supervisor Banach said everyone has given in and we have cut people, the highway department takes a hit as well as the fire department and yet the police department is getting an increase. Supervisor Banach questioned if they can do without another patrolman. Supervisor Melvin said there are contractual issues. Discussion followed as to what might possibly be cut. Bill Schneider spoke about the highway department budget stating if we have a good winter we could save money on salt and anti-skid. Further discussion followed.

Bob Bostinto said the board has tried cutting the budget and we are past bare-bones minimum. He’s suggesting a cigarette tax quoting different average prices for the tri-state area. Mr. Bostinto said in canvasing the stores in Westfall Township and adding a $.25 tax on each pack of cigarettes it would raise approximately $2000 a week times 52 weeks would be $104,000. Supervisor Melvin said he just wished we could do that because that is a state tax. Solicitor Bernathy said that is a state tax and he has given the Supervisors over the year’s different tax options and he we are down to the amusement tax. He has recommended the Earned Income Tax. He feels with the EIT there would be no challenges to it and 90% of the municipalities in the Commonwealth impose that tax. Supervisor Banach thanked Mr. Bostinto for looking into that stating the more people that search things out the better. Mr. Bostinto said we have an asset in sewer system and Milford needs to hook up to the sewer. He needs to speak to Commissioner Osterberg about this because there are is about $18 million in funding available. Mr. Bostinto said he doesn’t believe the amusement tax is the way to go. Supervisor Melvin said our immediate problem right now is how to come up with $10,655. Discussion followed regarding the amount of undeveloped property in Westfall Township. Supervisor Banach said the more commercial property we have more services we have to provide. Mr. Bostinto suggested offering a tax abatement to draw commercial developers. Supervisor Melvin said he is not sure the tax abatement is the way to go because he does not feel that we’ve ever had a problem with drawing commercial businesses to Westfall Township. Mr. Bostino asked for a laundry list or wish list of items the Supervisors needed to take back to Mr. Sullivan and his board to discuss. The board said right now they need $10,655.

Chairman Ewbank questioned what we were going to do about the budget. Supervisor Banach said he felt we should roll the dice and pray. Mr. Myer said what the board would be doing is taking an additional $10,655 from the $137,000 transfer from reserves. Supervisor Banach moved to add $10,655.55 to the transfer of from reserves. Motion is seconded by Supervisor Melvin and carried with all a favor.

Regional Police: Chairman Ewbank moved to notify the Police Commission that if we can resolve our budget issues by this time next year that we are going to have to back out of the Eastern Pike Regional Police Department. Solicitor Bernathy said we need to give them one year’s notice. Supervisor Banach said it would be from today’s date to November 19, 2013. Chairman Ewbank said it would be an open ended letter. Vice Chairman Fischer asked what the alternative would be. Chairman Ewbank said we will go back to having our own Police Department. Supervisor Banach said that we would be back to having a few full-timers and part-timers with a backup by the State Police saying we can’t keep going forward like this. The Matamoras Council wants us to go 60-40 and he believes we should go back to 50-50 because according to the census numbers Westfall Township is down and Matamoras is up. Supervisor Melvin agreed that it should be 50-50. Discussion followed about negotiating with Matamoras on the Police Commission in order to make it 50-50. Supervisor Banach said he agrees with Chairman Ewbank and we need to give notice to the commission and Matamoras Borough that if we cannot get our finances in order that we will not be a part of them, we will figure a way to do it differently and the more we delay it as we did in the second lawsuit we just prolong the pain. We need to find a way to save the taxpayers money. Supervisor Flansburg said he is inclined to second the motion with the stipulation that all of the entities involved should get together and try to figure it out and if we can’t figure it out by next year this time or do something different. Vice-Chairman Fischer said what this does for morale would be damaging. Supervisor Flansburg said we have a fiduciary responsibility to the taxpayers. Discussion followed. Motion carries with three and favor and to opposed. Chairman Ewbank and Supervisors Flansburg and Banach vote in favor of sending the letter. Vice-chairman Fischer and Supervisor Melvin are opposed. Motion carries with three in favor.

Mike Bowe owner of The Grill located in Westfall Township questioned what financial responsibility stores such as Wal-Mart have when the police have to go multiple times for shoplifting, fights and disagreements. Supervisor Melvin said they pay their Township tax. Supervisor Flansburg said this is been the subject of great debate. Mr. Bowe asked if the Township can figure out a way to impose a fee. Solicitor Bernathy said they can prosecute their own retail theft and that would solve the problem. Any other criminal offenses would be covered by the Eastern Pike regional Police Department. The most of the responses to Wal-Mart and Kmart and such are retail theft. Supervisor Melvin said this will be on the docket at the December Police Commission meeting to discuss. Chairman Ewbank said also the subject of discussion has been the school police where you’re paying for two Police Department’s because school has police and EPRPD has to respond as well. Mr. Bowe said he doesn’t know how you can impose a sales tax but if there was a corporate tax that might be the answer as opposed to the amusement tax. Solicitor Bernathy said legally we cannot do that and that are only certain taxes can impose according to the Local Tax Enabling Act. Supervisor Melvin suggested Mr. Bowe speak to the County Commissioners because Supervisor Banach has been trying to get a countywide sales tax imposed.

Beth Brelje asked for clarification from the Supervisors on whether they will be pulling out of the Eastern Pike Regional Police Department one year from now if the budget is not agreed upon. Solicitor Bernathy said pursuant to the terms of the regionalization agreement in order to dissolve or breakup the Police Department the terms of the agreement require us to give one year advance notice. That is what the supervisors have agreed to do. That doesn’t mean that they will pull out or dissolve the department they are just giving notice. Vice-Chairman Fischer asked solicitor Bernathy if at the end of the year they have to do the same thing over again. Solicitor Bernathy said he would follow-up with a letter stating it is not our intention to dissolve the department and do that on a year-to-year basis. Supervisor Banach said with any luck they will find money.

Attorney John Schneider suggested having properties reassessed to get the tax base raised. Chairman Ewbank said that we will take that under advisement.

Municipal Authority – Land Development: Bill Schneider said the board has information in their packets regarding development the Municipal Authority needs to have constructed and questions if land development approval is needed. Solicitor Bernathy said to his knowledge they do need land development approval he does not believe that can be waived under the municipalities planning code. Therefore they would need to submit land development plans. Mr. Schneider questioned if being a utility makes the difference. Solicitor Bernathy said he will definitely check it out and give him an answer first thing tomorrow morning. Further stating if their Solicitor Anthony Waldron has any information he is welcome to submit it.

Agenda / Visitors: Supervisor Flansburg said he did not feel we treated our visitors fairly such as the Delaware Valley School District who was here are at the November 8, 2012 meeting and had to sit through 2 1/2 hour meeting until they made their three minute presentation. Supervisor Flansburg said he knows that John Bell from the school district will be attending our meeting in December and he feels we should recognize him at the start of the meeting. Solicitor Bernathy said the board can always amend the agenda at the beginning of the meeting to move the visitors up.


Meet with Business owners re – Amusement Tax: Chairman Ewbank said we are at that portion of the meeting where we will be meeting with the business owners with ideas for the amusement tax or another way to raise funding. Attorney Schneider said he was not here at the last meeting; he sent a letter and called the secretary to make sure the Board knew that they would not be attending. As a practical matter the business owners fully appreciate what the board is trying to do, the reality is that the original ordinance targeted the canoe liveries and they waited for the new ordinance which they now have and understand that it is targeting all amusements in the Township. Solicitor Bernathy corrected Mr. Schneider by stating that was not true and that was the amusement and transaction tax that he was referring to. Mr. Schneider said he provided a memorandum of law as to what their legal position is regarding the tax and they still believe they are exempt under Federal law. Supervisor Flansburg asked who Mr. Schneider was representing. He is representing Dave Jones, of Kittatinny Canoes; Tony Brunovsky, of Indianhead Canoes; Pete Lovelace, Three River Canoe Corporation; and Rick Lander, Landers River Trips. Mr. Schneider said they start out with the position that they feel they are exempt. Solicitor Bernathy respectfully disagrees. Having said that Mr. Schneider said he does not want to rehash what was said before such as the issues that the administrative costs and compliance and how they have to report it. Stating it will cost more to the business owners to file this tax than the amount of money the Township would receive. Mr. Schneider said he doesn’t believe the tax would generate more than $7-$12,000 per year. One of the livery owners is not making any money. Mr. Schneider said they will be happy to do fundraisers and discussed ways to get money without generating a tax. Solicitor Bernathy asked what the alternative was other than fundraising. Mr. Schneider said the only other way other than fundraising would be to come up with some kind of donation. Supervisor Banach said speaking for himself the fire Department asked a few years ago for $.10 per canoe and that was shot down. Further stating that he had mentioned when he went out West to go hunting he had to pay $.25 and he was told by a resident that was voluntary, however he looked that up and it was mandatory and they have now added $.75 for education. Now it is an additional one dollar ($1.00) to get your license. Supervisor Melvin said the board has not talked about alternatives amongst themselves yet he has thought about the administrative costs. Solicitor Bernathy said perhaps they would offer something in lieu of a tax. Mr. Schneider said they are prepared to sit down and discuss that. Chairman Ewbank said there have been two other meetings that the business owners have been here and said they were looking to discuss alternatives to the tax and he thought that’s what we were going to do tonight. Supervisor Flansburg said that was the impression he got the last meeting also. Supervisor Banach said he rented a canoe and kayak from Kittatinny canoes in his receipt shows four people went down the River, he feels it would be simple to track because they know exactly how many people go down the River. Supervisor Banach said he does not know about the other liveries however Kittatinny canoes has it right on the receipt.

Beth Brelje asked why it is the canoe liveries responsibility to make an offer to the supervisors to not have the tax. Supervisor Melvin said otherwise we just impose the tax. Chairman Ewbank said they volunteered to come to us and discuss other ways to raise revenue. It is nobody’s job; the Supervisors are interested in what they have to say. Further stating if they have an idea of how to raise $10,000 we would love to hear it. Ms. Brelje asked if they don’t come up with some idea we would impose the tax. Chairman Ewbank said not necessarily. Supervisor Banach said the Secretary and our staff invited every business owner to come to the meeting tonight. Malibu Dude Ranch said they would do anything they could to help the Township. Solicitor Bernathy told Mr. Bowe that if he doesn’t charge an admission his business would not be affected. Mr. Bowe asked why the Supervisors were allowed to impose the amusement tax. Solicitor Bernathy said because this is one of the taxes under the Local Tax Enabling Act that the supervisors are permitted to impose. Supervisor Flansburg said this is one thing under the Local Tax Enabling Act that we can do, the other is the earned income tax and we do not want to impose that because in the first year residents would be paying property taxes and the earned income tax and may be getting a double hit. Bob Bostinto questioned if there was a difference between the tax and surcharge. Solicitor Bernathy said we have exhausted what we can do to raise revenue and that includes asking the Pennsylvania State Association of Township Supervisors for suggestions that they could make and a surcharge was not one of them. Supervisor Flansburg said that the last meeting we showed a newspaper article from the Pocono Mountain Visitors Bureau stating they had their best year in 75 years collecting over $4 million. So we listened to her at the public hearing stating that we couldn’t do this or that and in reality she wasn’t telling us the truth. Mr. Bostinto questioned where the liability gets covered for somebody acting stupid on the River or having an accident on the River. Supervisor Flansburg asked if they sign a waiver. Mr. Jones said they do sign a waiver of liability. Solicitor Bernathy said it’s an assumption of risk when you go out on the River. Supervisor Banach said he wanted to stress this is not for EMS. Chairman Ewbank asked Mr. Hessling from the school district if he had any input on this. Mr. Hessling said they are taxing body also and they understand that were hurting for revenue but 50% of the gate receipts is probably students money. He questioned the relay for life for the cancer society. Chairman Ewbank said did not charge an admission for the relay for life. Mr. Hessling said there are four sports they charge for, football, girls’ and boys’ basketball and wrestling, and the total receipts are approximately $18,000 so 1% would be $180. Solicitor Bernathy said possibly they could do something in lieu of the tax to alleviate some of the internal costs that the school district and liveries would have. Mr. Hessling said a reasonable estimate is $150 – $180. Chairman Ewbank said when this is all said and done we might find that it’s not worth it. We are just trying to determine that. Supervisor Melvin said maybe we could do something based on last year’s numbers. Mr. Schneider said we are at a public meeting and they said everything that they’re going to say and he would like to keep the dialogue open. Vice-chairman Fischer suggested meeting with two members of the board. Solicitor Bernathy said if there’s a proposal that they have he could understand why they didn’t want to discuss them in public, however it was going to be pretty easy for people to figure out the numbers. Mr. Schneider said with all due respect that’s assuming the Township is going to win. Supervisor Melvin questioned if we want to have two Supervisors meet with the livery owners.

Beth Brelje said it makes it tricky and it sounds like the Supervisors are taking something that really needs to be in the public eye and circumventing the sunshine law. Solicitor Bernathy said the Supervisors can meet with anybody that they like at any time. That is not a violation of the sunshine law. Further stating that the Supervisors can speak to constituents on an individual basis. Supervisor Melvin said no decision will be made. Further discussion followed. Ms. Brelje said it is a curious habit. Solicitor Bernathy said this is not a habit at all.

ADJOURNMENT: The special meeting adjourned at 8:45 pm on a motion by Supervisor Banach.  Motion is seconded by Supervisor Flansburg and carries with all in favor.

Respectfully submitted,

Lisa A. Green, Secretary