Does a Board Have the Power to Alter the Effective Date of a Pension Ordinance to a Date Earlier Than the Stipulated Five Days After Adoption ?
In Borkey v. Twp. of Ctr., 847 A.2d 807 (Pa. Cmwlth. 2004), a township board of supervisors (Supervisors) amended its 1992 pension ordinance.
The 1995 pension ordinance provided that the pension benefits for police officer retirees would be based on earnings which included compensatory pay.
The Supervisors enacted the 1995 pension ordinance on December 28, 1995 with an effective date of January 1, 1995.
The police officer sought to have his pension computed based on the 1995 ordinance.
This court observed, however, that in accordance with the Second Class Township Code, the 1995 pension ordinance did not become effective until after the officer's retirement inasmuch as ordinances "are effective five days after adoption unless a date later than five days after adoption is stated in the ordinance." Borkey, 847 A.2d at 813.
The Court stated:
The Board had no power to alter or modify the effective date of the 1995 Pension Ordinance to a date earlier than five days after adoption.
To allow the Board to establish a January 1, 1995 effective date for an ordinance enacted on December 28, 1995, is simply contrary to positive law.
It would be tantamount to allowing the Board to amend the Second Class Township Code. Id.