A judge in Washington County must decide whether at least two Donegal Township supervisors are being illegally removed from their seats prematurely or if voters merely abolished their office when they downsized the board from five seats to three in a referendum last year.

Oral arguments were held Tuesday afternoon in the lawsuit brought by three supervisors against their two other colleagues and the township claiming the referendum to reduce the size of the board could potentially remove them from office before their terms expire.

Supervisors Richard Martin, Richard Fidler and Tammi M. Iams originally filed the lawsuit in April hoping Judge Michael Lucas would grant them a preliminary injunction to block the supervisors’ race from being placed on the township’s ballot in the primary election or reject the results after the vote. Lucas denied the injunction and the state Commonwealth Court upheld his ruling shortly before the May 18 primary, prompting the plaintiffs to later amend their lawsuit.

The plaintiffs’ lawyer, Thomas Breth, argued some of the supervisors could be removed before their terms expire, including Martin and Fidler, both of whom lost in the primary election. Breth said the situation is different than when Allegheny County voters eliminated their row offices in the 1990s because that changed the entire form of government.

“Are they abolishing their form of government and moving to another form of government?” Breth asked rhetorically about Donegal Township.

Breth added the form of government in Donegal will remain the same, but with two fewer supervisors. In effect, he said, at least two of them could be removed prematurely.

“They’ve lost their ability to do their job,” he said.

But Bernie Matthews, the lawyer for the other two township supervisors who are listed as defendants in the case, argued voters abolished two supervisor offices when they overwhelmingly approved the referendum last November to downsize the board just a few years after voting on a different ballot initiative expanding it.

“Removing an official for misconduct is much different than abolishing the office,” Matthews said. “An elected official cannot be removed from an office that no longer exists.”

He added the process appears to be following the requirements in the Second Class Township Code when reducing the size of the board.

“The township voters constitutionally ended the (two) offices,” Matthews said. “The voters decided to go from five to three (seats).”

While Fidler and Martin won’t be on the general election ballot, Iams and the two defendants, supervisors Kathleen W. Croft and Edward Shingle Jr., will be candidates, although there’s no assurance all three of them will win. Randy Polan, James Bauer and Shingle successfully mounted write-in campaigns in the Republican primary, while Polan, Croft and Iams won the nominations in the Democratic primary.

Lucas questioned whether this was a “novel case” after briefs supporting positions on both sides were filed in recent months. Lucas said Tuesday he would make a decision quickly so as not to affect potential appeals before the upcoming Nov. 2 general election.

“I’ll place this at the top of my list,” Lucas said. “I understand what’s at stake here.”

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