Arneson v. Wolf

Decision Date10 June 2015
Docket NumberNo. 35 M.D. 2015,35 M.D. 2015
Citation117 A.3d 374
PartiesErik ARNESON, individually and in his official capacity as Executive Director of the Office of Open Records, and the Senate Majority Caucus, Petitioners v. Thomas W. WOLF, in his official capacity as Governor of the Commonwealth of Pennsylvania, Department of Community and Economic Development, and Office of Open Records, Respondents.
CourtPennsylvania Commonwealth Court

Joel L. Frank, West Chester, for petitioner Erik Arneson.

Matthew H. Haverstick, Philadelphia, for petitioners Erik Arneson and Senate Majority Caucus.

Charles R. Brown, Harrisburg, for respondent, Office of Open Records.

Kenneth L. Joel, Chief Deputy Attorney General, and Jonathan D. Koltash, Deputy Attorney General, Harrisburg, for respondents Thomas W. Wolf and Department of Community and Economic Development.

BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. McGINLEY, Judge, BONNIE BRIGANCE LEADBETTER, Judge, RENÉE COHN JUBELIRER, Judge, MARY HANNAH LEAVITT, Judge, P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge.

OPINION BY Judge PATRICIA A. McCULLOUGH.

In this case, the Court discerns legislative intent to determine whether the Executive Director of the Office of Open Records (OOR), a unique and sui generis independent body, was meant to be independent from the executive branch and insulated from the Governor's constitutional power to remove appointees at-will.

The legal concept of “independent administrative agency” has generated a wealth of commentary, but the defining characteristic of an independent agency is precisely that—the agency is independent in the sense that it is free from the control and influence of the chief executive. In this vein, our courts have recognized that if the legislature creates a public office, it may impose terms regarding tenure and removal as it sees fit, and if the legislature intends for an agency to be “independent,” then the legislature has the authority to circumscribe the Governor's removal power.

No one disputes that the OOR is a unique administrative agency and that the Executive Director, as the head of this agency, assumes an inimitable role in its operations. The OOR is a quasi-judicial tribunal tasked with the delicate function of applying the statutory standards of the Right–to–Know Law (RTKL).1 The RTKL is a ground-breaking overhaul in the law concerning governmental records and documents that must be disclosed to the public. The current RTKL marked a significant shift from the former Right to Know Act of 1957,2 which imposed the burden on the requester to show a record was subject to access, and now requires that government agencies and officials establish why it is not.

Significantly, the OOR's statutory obligations include determining whether even documents of the Governor, and the executive branch in general, should be disclosed to the public; hence, the two entities can often be diametrically opposed for purposes of the RTKL. The OOR is structurally and functionally independent from the executive branch; the Executive Director oversees the OOR, its quasi-judicial functions, and has a statutorily-fixed term that exceeds the appointing Governor's term. The Court considers these and additional factors in ascertaining whether the legislature, in enacting a RTKL designed to promote public access to information, expressed intent to limit a Governor's power to remove the Executive Director except for cause.

After careful review, we conclude that the legislature has expressed such intent.

Facts/Procedural History

On February 18, 2015, the parties submitted a joint stipulation of facts and exhibits, agreeing to the following.

On January 13, 2015, then-Governor Tom Corbett lawfully appointed Erik Arneson to be the Executive Director of the OOR, designating his tenure as January 13, 2015, through January 13, 2021, “and until your successor is appointed and qualified, if you shall so long behave yourself well.” (Stipulation of Facts, Ex. B.) Arneson received his commission on that same date, and, on January 16, 2015, he took the oath of office.

On January 20, 2015, Governor Thomas W. Wolf officially became the new Governor of Pennsylvania. Governor Wolf authored a letter dated January 20, 2015, and delivered it to Arneson on January 22, 2015. This letter informed Arneson that Governor Wolf was terminating his employment as the OOR's Executive Director immediately.3 (Stipulation of Facts, Ex. D.)

On January 26, 2015, Arneson, individually and in his official capacity as Executive Director of the OOR, and the Senate Majority Caucus (together, Arneson) filed a petition for review in the nature of a complaint for mandamus and declaratory relief in this Court's original jurisdiction against Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania, the Department of Community and Economic Development (DCED), and the OOR (together, Governor Wolf).

In his petition for review, Arneson pled a mandamus count and a count for declaratory relief, contending that Governor Wolf terminated his employment as the Executive Director of the OOR in violation of the Pennsylvania Constitution and the RTKL. In his prayer for relief, Arneson seeks, among other things: (1) a writ of mandamus restoring him to the position of Executive Director; (2) backpay and benefits; (3) a declaration that Governor Wolf violated the Pennsylvania Constitution and the RTKL; and (4) an injunction permanently enjoining Governor Wolf from making further attempts to remove him as Executive Director without cause.

Following the filing of pleadings and applications by the parties, including Arneson's application for a special and preliminary injunction, President Judge Dan Pellegrini issued an order dated February 4, 2015. In this order, President Judge Pellegrini noted that Arneson withdrew his application for a special and preliminary injunction and ordered that the case be listed for the March argument session before the Court en banc. President Judge Pellegrini further directed the parties to file cross-motions for summary relief on stipulated facts and briefs.

The parties then filed cross-motions for summary relief and briefs in support of their respective positions.4

Discussion

In his brief, Arneson contends that by enacting this new RTKL and creating the position of Executive Director, the legislature expressed its intent to limit a Governor's removal power and that in accordance with principles of statutory construction, the Executive Director can only be removed for cause. Arneson argues that to limit a Governor's removal power, explicit statutory language is unnecessary, and that the basic structure and specific provisions of the RTKL clearly reflect the legislature's general intent to curtail a Governor's power to remove an Executive Director at his pleasure.

In advancing this argument, Arneson relies principally upon four factors: (1) the Executive Director serves for a mandatory six-year term that exceeds or staggers the four-year term of the initially-appointing Governor; (2) the legislature barred an Executive Director from seeking election or appointment to a political office during his tenure as Executive Director and for one year after his tenure; (3) the OOR is a unique and independent administrative agency that reviews other agency's actions under the RTKL, including the Office of the Governor; and (4) the goal of the RTKL is to promote access to official government information and this goal can only be accomplished if the Executive Director and the OOR remain independent from the Governor and the Executive Director is not under the pressure of being removed at the Governor's pleasure.

In addition, Arneson asserts that the Executive Director performs quasi-judicial duties in his role at the OOR and cannot be removed absent cause based upon separation of powers principles. For support, Arneson cites the expression of rationale advocated by former Chief Justice Jones in his special concurrence5 in Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (1961).

In his brief, Governor Wolf argues that there is no explicit statutory language governing the removal of the Executive Director, and, therefore, it is presumed that the Executive Director can be removed absent cause. Governor Wolf contends that even though the six-year term for an Executive Director is longer than the appointing Governor's term, it is still a term of years and does not overcome the presumption that an appointee can be removed at-will.

Governor Wolf also advocates that the RTKL does not expressly designate the OOR as an “independent agency,” and states that the OOR is housed by statute within the DCED, a department of the executive branch. Governor Wolf further dismisses Arneson's claim that the OOR needs to be independent from the Governor and the executive branch, contending that the OOR's decisions are not accorded any deference when they are reviewed on appeal; the OOR's decisions are automatically stayed pending appeal; this Court can act as fact-finder on appeal; and the judiciary, rather than the OOR, serves as the independent decision-maker in requests for records.

Finally, Governor Wolf contends that there is no “quasi-judicial” exception to his removal power under the Pennsylvania Constitution and that, even if one existed, the RTKL does not create a “quasi-judicial” entity or a “quasi-judicial” Executive Director. Governor Wolf notes that Chief Justice Jones' commentary in Bowers merely represented the view of one Justice and did not garner the joinder of any other Justices in that case.

Analysis

Our determination of whether the Governor can remove the Executive Director of the OOR without cause is necessarily premised on an analysis of the Pennsylvania Constitution and established precedent.

Article VI, Section 7 of the Pennsylvania Constitution concerns public officers such as the Executive Director of the OOR and provides:

All civil
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    ...performed adjudicative functions, the Governor was without the power to remove a member of the board at his pleasure. Id.Finally, in Arneson v. Wolf , the Commonwealth Court of Pennsylvania considered whether an executive director of the Office of Open Records was subject to removal without......
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    ...to another branch. Id."The Governor's power is to execute the laws[,] and not to create or interpret them." Arneson v. Wolf, 117 A.3d 374, 391 (Pa.Cmwlth.)(en banc), aff'd, 124 A.3d 1225 (Pa.2015)(quotation omitted). "The Legislative Branch of government creates laws, and the Judicial Branc......
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