Pagano v. Pennsylvania State Horse Racing Commission
| Decision Date | 15 April 1980 |
| Citation | 50 Pa.Cmwlth. 499,413 A.2d 44 |
| Parties | Peter V. PAGANO, Plaintiff, v. The PENNSYLVANIA STATE HORSE RACING COMMISSION et al., Defendants. |
| Court | Pennsylvania Commonwealth Court |
Michael D. Fishbein, Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Lee C. Swartz, Harrisburg, Richard H. Elliott, Doylestown, for plaintiff.
Mary Ellen Krober, Allen C. Warshaw, Harrisburg, Arnold Levin, Philadelphia, Dept. of Justice, for defendants.
Before CRUMLISH, Jr., President Judge, and WILKINSON, MENCER, ROGERS, CRAIG, MacPHAIL and WILLIAMS, JJ.
The Court has before it defendants' preliminary objections to plaintiff's complaint seeking declaratory judgement. 1 Plaintiff was employed by the Pennsylvania State Horse Racing Commission beginning March 24, 1974 as an Administrative Officer I and rising to the level of Deputy Executive Secretary prior to his dismissal on July 3, 1975. Plaintiff asserts that his constitutional rights have been abused by the deprivation of a property interest in his continued employment.
In order to obtain a property interest in employment protected by the Constitution one must have a legitimate entitlement to it which arises from state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Pennsylvania a public employee is subject to summary dismissal unless by some legislatively authorized act greater employment rights are created. Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960). Most recently in Tomasetti v. Bowers, --- Pa.Cmwlth. ---, 408 A.2d 192 (1979), this Court found a deputy game protector, an executive branch employee of state government, had no legal expectancy of continued employment absent a valid contractual or express statutory basis.
Plaintiff bases his claimed property interest on directives issued by the Governor or his Secretary of Personnel. 2 Thus, our threshold determination must be the legal import of these documents.
Only executive orders which are authorized by the Constitution or promulgated pursuant to statutory authority have the force of law. Shapp v. Butera, 22 Pa.Cmwlth. 229, 348 A.2d 910 (1975). Of course, the Governor may issue proclamations or communications as executive orders absent such authority, but these gubernatorial communications will not be enforced by the Courts. Plaintiff offers no specific authority on which the instant executive orders were promulgated and this Court finds none.
Even if we had found that the documents were issued in a manner which made them legally cognizable executive orders, in order for plaintiff to prevail it would have been necessary that the Governor had the power to issue a directive granting an entitlement to continued employment to an employee in a non union position not included within the civil service system. Absent legislative action such a proposition is dubious. Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974) (allocatur refused), cert. denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975).
The basis of plaintiff's asserted property right being insufficient, we sustain defendant's preliminary objections.
AND NOW, this fifteenth day of April, 1980, the preliminary objections of the defendants The Pennsylvania State Horse Racing Commission, and Andrew R. Johnson, individually and in his capacity as Chairman of the Pennsylvania State Horse Racing Commission and A. Marlyn Moyer, individually and in his capacity as a Commissioner of the Pennsylvania State Horse Racing Commission and Robert B. Glass, individually and in his capacity as former Executive Secretary of the Pennsylvania State Horse Racing Commission and Larrick B. Stapleton, individually and in his capacity as an Attorney for the Pennsylvania State Horse Racing Commission, are sustained and the complaint of Plaintiff, Peter V. Pagano, is hereby dismissed.
An important distinction in this case is the fact that it involved the discharge of an employee of a quasi-independent commission by authority of that commission. For that key reason, I believe that we have reached the correct result in holding the gubernatorial directive to be ineffective here.
However, our holding should not imply that we would condone a future repudiation by an executive of his own tenure directive with respect to any executive branch employee not under an independent commission, whether or not the directive amounts to an executive order authorized by statute.
Although no governor should be permitted to impose tenure limitations upon his successor without legislative authorization, we should not discourage the establishment of merit personnel policies made meaningful by enforceability within an administration.
A governor's constitutional responsibility to administer the executive branch necessarily implies the power to use sound personnel policies for his own administration, as by offering assurances of tenure (dismissal only for cause) to attract qualified...
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