ALLENTOWN, Pa. - Same-sex marriage was the underlying issue, but not directly the subject of a debate among Lehigh County commissioners Wednesday night.
They disagreed about whether they needed to authorize county Executive Thomas Muller and his administration to follow state law, which now allows same-sex marriages.
On May 20, a federal judge struck down Pennsylvania's law prohibiting same-sex marriage because that law violated the U.S. Constitution.
That change means same-sex spouses of county employees now are eligible to receive medical benefits.
It's not that Muller had any intention to not obey the new law.
The county executive has been in support of same-sex spousal benefits since long before the federal court ruling, said Daniel McCarthy, the county's director of administration.
Some commissioners felt it was unnecessary for them to take any action on the matter – and unnecessary for them to tell the county executive to obey the state law.
But the county solicitor told commissioners they had an obligation to act and warned of lawsuits if they did not.
Commissioner Geoff Brace made a motion that the commissioners "authorize the county executive to comply with the advice of the county solicitor" with respect to the U.S. district court decision that has legalized same sex marriage in Pennsylvania -- including that decision's impact on the county personnel code.
That motion passed 6-0, with three abstentions.
Commissioners Vic Mazziotti, Scott Ott and Michael Schware abstained.
Mazziotti was the first to announce he was going to abstain,
explaining: "I can't very well vote against a motion that instructs the county executive to obey the law, but I can't vote for a motion that I think is unnecessary."
"We have no business telling the executive to obey the law," said Ott. "He already is obligated to obey the law."
"I'm having a difficult time with the need to essentially tell the county executive to comply with state law," agreed Schware. "We already have a provision in the home rule charter that the county is supposed to follow the constitution of both the federal government and the state government."
Even some who voted in favor of the motion did not feel it was necessary. That included Chairwoman Lisa Scheller, but she also said: "I want to see this moving forward immediately."
Commissioner Percy Dougherty also called the motion "redundant and unnecessary, because state law trumps the home rule charter."
Yet Dougherty also said: "We are abrogating our duty if we do not pass this. We should have a clean slate and move forward so the people are covered by the benefits and they get the coverage that is dictated by state law."
Atty. Matthew Sorrentino, the county solicitor, maintained that the county commissioners, not the county executive, had to take action on the issue. He said Muller "is not authorized to take the actions that it sounds like you want him to take."
Said Ott: "The idea that somehow we have to give the county executive permission to obey the law strikes me as absurd."
To suggest that a federal judge has some control over the county issue "is just not correct," said Sorrentino. "He didn't do anything with respect to the administrative code or the personnel code of Lehigh County."
Ott said the county has no policies prohibiting benefits for same-sex couples.
He said if the county did have such a policy, legislation now would be appropriate to strike any words or phrases that have been determined to be unconstitutional,
"'Spousal benefits' is in all our writings," said Dougherty. "Now ‘spousal' is defined differently. So it's covered."
Ott agreed the county executive may have to take action, but argued that action is not something the commissioners "need to trigger."
Ott suggested the commissioners only have to be involved if the county administration needs their approval to transfer sufficient funds to pay for same-sex spousal benefits.
Threat of lawsuits
The solicitor said the county already has been sued because the commissioners refused to fund benefits for same-sex spouses last year.
And he warned that others, including the American Civil Liberties Union, might file similar suits if action is not taken quickly.
Ott dismissed the threat of lawsuits as "a desperate plea." He said it makes no sense that the commissioners not telling the county executive to do what he's legally compelled to do is going to generate a lawsuit against the county.
Sorrentino predicted the lawsuit already filed against the county will come to a swift end if the commissioners took action.
Ott said that lawsuit was filed before the federal judge ruled that Pennsylvania's law prohibiting gay marriage was unconstitutional.
Symbolic not substantive
Ott also suggested that any action by the commissioners would be symbolic rather than substantive "and there's no need for us to do that."
Ott argued Brace's motion was unnecessary "unless the solicitor can tell us that without this, the executive will not comply with the law.
I believe the executive intends to comply with the law. I don't think we should be telling the executive how to do his job and that he should obey the law. That just doesn't make any sense to me."
"Commissioner, respectfully, you and I can agree to disagree about this," said Sorrentino.
Commissioners rejected same-sex benefits
Sorrentino argued that commissioners created a policy when they refused to allocate funds for health benefits for same-sex spouses late last year.
"You did make that choice, back in November," said the solicitor.
"We did not set a policy, we allocated money," said Ott.
Schware said Sorrentino's opinion infers a policy that the commissioners did not set.
Last October, the commissioners voted 5-4 to reject providing medical benefits to same-sex spouses of county employees.
Former county Executive Matt Croslis had earmarked $219,000 to pay for those benefits in the 2014 county budget.
A majority of commissioners felt approving that allocation would have put the county in conflict with state law as it existed at that time.
On Wednesday some commissioners noted that action was taken long before same-sex marriages were ruled legal in Pennsylvania.
The commissioners never voted to tell the executive not to comply with the state law or the ruling of the judge, "because it hadn't even occurred," said Mazziotti. "I just don't follow the logic."
That $219,000 was based on 30 couples applying for health benefits, but it was not believed the county, which has about 2,000 employees, would come close to needing that much money.
In late December, at the very end of his term as county executive, Croslis unilaterally issued a directive that would have given benefits to county employees who legally are married to someone of the same sex.
Muller, who took office a few days later, had to rescind that directive, because the commissioners were threatening to take legal action against the county executive.
At the time, Muller said Sorrentino's opinion was that giving same-sex benefits "was a policy decision and policy decisions rest with the board of commissioners, not with the county executive."
"I support same-sex benefits," said Muller. "But if it's not within the realm of what I can do, according to our charter, I'm not going to do it."
On Wednesday, Brace initially proposed an ordinance to restore that $219,000 to this year's county budget. But he agreed to withdraw the proposed ordinance and replace it with the motion approved by the majority of commissioners.
Change comes July 1
McCarthy said the county benefits for same-sex spouses will be in place by around July 1.
Dougherty asked why it will take so long, saying the county already has a preliminary list of applicants. He said the coverage should begin immediately.
"We're really only talking about 30 or 40 days," said McCarthy. "This court case is all of eight days old. But in response to that, we're doing it as quickly as we can."
Allentown resident Thomas Cunningham, who spoke just before the vote, wanted to hear every commissioner's opinion on the issue. They did not respond to that suggestion.
Cunningham, a retired county employee with a same-sex spouse, also questioned why it will take the county until July 1 to make the change. "You have my application for benefits for two years."
"I think it's ridiculous to wait until July 1," said Schware. Scheller agreed.
McCarthy said the timeline is the same for both same-sex and opposite-sex couples applying for the benefits.
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