COMMONWEALTH OF PENNSYLVANIA BEFORE THE STATE BOARD OF EDUCATION INRE: APPLICATION OF ERIE COUNTY : Docket No, 2019-001 ROCCE if SEEKING TO ESTABLISH A COMMUNITY CEIVED COLLEGE a JAN 08 2620 PA STATE De, OF EDUCATION ANSWER TO PETITION TO INTERVENE OF BRENT DAVIS Pursuant to 1 Pa, Code § 35.35, the County of Erie (“County”), by and through its undersigned counsel, files the within answer to the petition to intervene filed by Brent Davis, In support hereof, the County avers as follows: 1. Admitted. va Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied as stated. It is admitied that the July 12, 2017 meeting minutes of the Board's Council of Higher Education (“Council”) indicates that the County’s Proposal for the Establishment of a Public Community College in Erie County, Pennsylvania (“Plan”) was submitted to the Board on July 3, 2017, and discussed at the Couneil’s July 12, 2017 meeting, ‘The Cou y is without information sufficient to determine the truth of the remaining averments of this paragraph, and therefore denies same. 7. Denied as stated, The Council voted unanimously at its meeting on July 12, 2017 0 approve the following resolutions: (i) to appoint a Special Committee on the Erie County ‘Community College Plan; and (ii) to request the Department of Education to review the Plan and 1961994671make a report to the Board of its findings and recommendations. ‘The action undertaken by the Council was announced at the Board’s meeting on July 13, 2017. In further response, the Department of Education (“Department”) completed its review of the County’s Plan and submitted its findings in a report dated October 28, 2019, in which it conclusively found that the Plan met aif of the requirements enumerated in Section 19-1902-A(d) of the Public Schoo! Code, as well as the additional guidelines for the establishment of public community colleges adopted by the Department in August of 2016. 8. Denied as stated. It is admitted that the Committee held its first meeting on September 13, 2017, during which it () scheduled a public hearing in Erie for October 10, 2017 to provide an opportunity for local community input; and (ii) took action to initiate consultation with the Governor's office on the number of community colleges that could be approved for participation in the next fiscal year per Section 1902-A of the Public School Code. In further answer, Governor Tom Wolf responded by way of two letters to the Board on October 28, 2019: the first confirming that fifteen community colleges could be approved for participation in the upcoming fiscal year; and the second expressing his support for the establishment of a community college in Erie. 9. Denied as stated. It is admitted that during its December 19, 2017 meeting, the Committee approved a supplemental information request to the County secking clarifying information regarding the Plan, which was thereafter communicated to the County. ‘The County provided detailed information in response to the Committee’s request on February 16, 2018. 10, Denied as stated. {tis admitted only that no formal action was taken by the Board at its November 14, 2019 meeting regarding the approval of the Plan, 11. Admitted upon information and belief,12. Admitted. 13, It is admitted that Mr. Davis has filed a petition to intervene. It is denied that he has satisfied the requirements for intervention pursuant to the General Rules of Administrative Practice and Procedure (“GRAPP”), or that his intervention in this matter would be appropriate. 14. It is admitted that 1 Pa, Code § 35.28 sets forth the exclusive eligibility requirements to intervene in matters before this Board, 15, Denied as stated. It is admitted that GRAPP sets forth the exclusive requirements for standing to intervene in matters before this Board, It is further admitted that in order to satisfy those requirements, Petitioner must have an interest which may be directly affected and which is not adequately represented by existing parties, and as to which Petitioner may be bound by the action of this Board taken upon the application of the County currently before it. It is further admitted that this test, as prescribed by GRAPP, differs from other tests applied by the courts, 16, Admitted. 17, It is admitted that in Bensalem Racing Ass'n v. Pa. State Harness Racing Comm'n, 19 A3d 549 (Pa. Cmnwlth 2011), the Commonwealth Court considered an intervenor's status as a competitor in analyzing whether an administrative agency committed an abuse of discretion in denying intervention. It is denied that the other two cases cited by Petitioner analyzed the standing requirements set forth in GRAPP. In further response, it is denied that Petitioner's status is one of a competitor with the County, or with the proposed Community College. Consequently, the cases cited by Petitioner do not provide any support for his Petition to Intervene.18, It is admitted that the Petitioner has accurately quoted a sentence from the Pennsylvania Supreme Court's decision in South Whitehall Township Police Service v. South Whitehall Township, 521 Pa, 82, 555 A.2d 793 (1989). It is denied that the South Whitehall decision analyzed the standing for intervention pursuant to GRAPP. 19, Denied, Itis denied that owning properties within the County affords Petitioner a direct interest under 1 Pa, Code § 35.28 for purposes of intervention, 20. Denied, It is denied that Petitioner has a direct interest in this matter based upon ‘an unsubstantiated supposition that that proposed Community College might become financially unsustainable, which could result in an increase to his property taxes. See W. Chester Area Sch. Dist. v, Collegium Charter Sch, S71 Pa, 503, 812 A.2d 1172 (2002)(Taxpayers did not have standing to intervene in administrative hearing based upon conjecture that taxes might be ineteased if charter school application was approved). In further answer, the application submitted by the County demonstrates the financial viability of the proposed Community College. 21. Denied, ‘The County denies that the proposed Community College is not financially sustainable for the reasons set forth in its application, the contents of which are incorporated by reference. 22. Denied. The County denies that the proposed Community College is not financially sustainable for the reasons set forth in its application, the contents of which are incorporated by reference. 23. Denied, For the reasons set forth in the County's application, the proposed Community College is needed, as the market need for affordable post-secondary education in Erie County is not being met by other postsecondary institutions. Such was the finding of thePennsylvania Department of Education in its report to this Board dated October 28, 2019, wherein it stated: “While there are a number of postsecondary institutions in Erie County, there continues to be unmet educational need, Based on PDE’s review of enrollment rates and a comparison of tuition at the existing institutions within Erie County, our determination is that the area is not adequately served by established institutions of higher education.” Report, p. 9. 24. Denied as stated. It is denied that Petitioner has asserted an interest that would qualify him as an appropriate intervenor in this matter, and consequently there is no reason for his interest to be represented at the hearing 25. Denied as stated. It is admitted that taxpayers have, under certain circumstances, been granted standing, in certain court proceedings. The standard for standing in a court proceeding differs than the standing to intervene in a proceeding governed by GRAPP, and consequently, the case cited by Petitioner has no precedential bearing on this Board’s consideration of the instant Petition, In further answer, the case of W. Chester Area Sch. Dist. v. Collegium Charter Sch, S71 Pa, 503, 812 A.2d 1172 (2002) is directly on point, as it considered the right of taxpayers to intervene in an administrative proceeding govemed by GRAPP. In that case, the Pennsylvania Supreme Court found that taxpayers seeking to intervene in a hearing to determine the application to form a charter school did not have a sufficient interest to permit intervention under 1 Pa, Code § 35.28, even though they argued that their taxes may be increased as a consequence of the geanting of the application. Id. 571 Pa, at 527-528, 812 A.2d at 1186- 1187. Such is the case with the Petitioner here. 26. Denied, As of the filing of this answer, four others have petitioned to intervene, including the Northern Pennsylvania Regional College (*NPRC”). The County does not oppose ‘NPRC’s petition.27. Denied as stated. It is admitted that the County will rely upon its application, as well as additional evidence in support of its application, at the time of hearing, All other averments are denied for the reasons already stated herein, in sufficient to determine the 28. Denied as stated. The County is without inform: purpose behind Mr. Davis’ filing of his Petition to Intervene. ‘The motivations behind Mr. Davi Petition notwithstanding, the County asserts that Petitioner has not established that he has an interest that qualifies him for intervention under 1 Pa, Code § 35.28, and accordingly, it would be inappropriate for him to provide evidence or his personal point of view during the March 18, 2020 hearing. 29. Denied. It is denied that Petitioner has an interest that requires or otherwise allows for redress regarding the County’s application. 30. Denied. It is denied that any evidence that Petitioner may have would be relevant to the matters to be decided in this matter. 31. Denied, It is denied that Petitioner has a right to intervene, or has made the requited showing for permissive intervention under GRAPP. Specifically, Petitioner has not demonstrated that he has an interest which may be directly affected and which is not adequately represented by existing parties, as to which he may be bound by the decision of this Board, as required for intervention under the provisions of GRAPP. In further answer, and based upon the application and other information previously submitted to this Board, the proposed Community College is needed, is financially sustainable and will benefit the residents of Erie County. All other averments of this paragraph are deniedWHEREFORE, Erie County respectfully requests that this Board deny Brent Davis’ Petition to Intervene in this matter. Dated: January 3, 2020 Respectfully submitted, Michael W. Winfield, Esquire ID No. 72680 17 North Second Street, 12" Floor Harrisburg, PA 17101 (717) 731-1970COMMONWEALTH OF PENNSYLVANIA. STATE BOARD OF EDUCATION IN RE: APPLICATION OF ERIE COUNTY SEEKING TO ESTABLISH A COMMUNITY: COLLEGE t Docket No. 2019-001 CERTIFICATE OF SERVICE Thereby certify that I have this date caused a true and correct copy of the foregoing document to be served upon the following as indicated betow: Via First Class U.S. Mail, Postage Prepaid: Thomas P, Howell, Esquire Deputy General Counsel Governor's Office of General Counsel Commonwealth of Pennsylvania 333 Market Street, 17th Floor Harrisburg, PA 17101 Adam G, Klein, Esquire Michael R. Kelley, Esquire Randall S. Pajovich, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street, 3" Floor Harrisburg, PA 17110-1778 Attorneys for Petitioner Brent Davis Dated: January 3, 2020 t y MichaellW. Winfield, Asquire Pa, Suprethe Court [.D. No}72680 POST & SCHELL, P.C. 17 North Second Street, 12" Floor Harrisburg, PA 17101 Telephone: (717) 612-6024 Facsimile: (717) 720-5393 MWinfield@PostSchell.com Attorneys for County of Evie