Shapp v. Butera

• Decision Date: 08 December 1975
• Parties: Milton J. SHAPP, Governor of the Commonwealth of Pennsylvania and Norval Reece, Special Assistant to the Governor for Inter-Governmental Relations, Commonwealth of Pennsylvania v. Robert J. BUTERA, Minority Leader of the House of Representatives, Commonwealth of Pennsylvania, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 910

348 A.2d 910

22 Pa.Cmwlth. 229

Milton J. SHAPP, Governor of the Commonwealth of

Pennsylvania and Norval Reece, Special Assistant

to the Governor for Inter-Governmental

Relations, Commonwealth of Pennsylvania v. Robert J. BUTERA, Minority Leader of the House of

Representatives, Commonwealth of Pennsylvania, Appellant.

Commonwealth Court of Pennsylvania.

Argued Sept. 10, 1975.

Decided Dec. 8, 1975.

Matthew F. Coppolino, Edward C. Hussie, John J. Burfete, Jr., Harrisburg, for appellant.

Burton D. Morris, Deputy Atty. Gen., Harrisburg, for M.J. Shapp.

Lawrence J. Beaser, Sp. Asst. Atty. Gen., Robert P. Kane, Atty. Gen., for appellees.

Before BOWMAN, President Judge, and CRUMLISH, JR., KRAMER, WILKINSON, MENCER and ROGERS, JJ.

OPINION

KRAMER, Judge.

This is an appeal filed by Robert J. Butera, the Minority Leader of the House of Representatives, from a denial by Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, and Norval Reece, Special Assistant to the Governor for Inter-Governmental Relations, of the right to examine, inspect and copy financial disclosure statements filed in the Governor's office by members of the Governor's Cabinet and members of 'certain' agencies, boards, and commissions. The statements were filed pursuant to an 'Executive Order' of April 29, 1971. The appeal was filed under the provisions of the Act of June 21, 1957, P.L. 390, As amended, 65 P.S. § 66.1 et seq., commonly known as the Right To Know Act. Although the Act does not specifically set forth procedural requirements, Section 4, 65 P.S. § 66.4 (as partially amended by the Appellate Court Jurisdiction Act of 1970) ¹ provides for judicial review of 'agency' decisions.

The case is in the nature of a statutory appeal and the record before us consists only of a pleading in the form of an acknowledged petition setting forth allegations, exhibits and exceptions to the alleged denial by the Governor and Reece. Butera asks this Court to reverse the denial and to order the Governor to permit him to examine, inspect, and copy the requested financial disclosure statements. Because we conclude that the documents requested do not come within the purview of the Right To Know Act, we will dismiss the appeal.

On April 29, 1971, the Governor issued an 'Executive Order' on the subject of 'disclosure of financial interests.' This Executive Order was published as an official document in the Pennsylvania Bulletin, 1 Pa.B. 1265, and subsequently codified in the Pennsylvania Code, 4 Pa.Code § 7.71 et seq. The first paragraph of the Executive Order, as it was issued by the Governor's office on April 29, 1971, ² reads as follows:

'You are probably all aware that I shall shortly make full disclosure of all my financial interests and holdings. In keeping with this policy, I am Requesting similar disclosure by all members of my Cabinet and members of certain boards, commissions and agencies, as of the date you assumed your present position. If there has been no significant change, the disclosure can be as of the date of the disclosure.' (Emphasis added.)

The financial disclosure was to include (a) the listing of all organizations with which the reporting person serves as an employee, officer, director, trustee, consultant, or in any other capacity; (b) the listing of ownership interests in all personalty and realty held and any other income resulting from prior employment, pension or retirement plans, together with any other assets not specifically mentioned; and (c) all liabilities of the reporting person. The statements were intended to include identical information for the reporting person's spouse, minor children or other members of the immediate household. The statements were to be filed semiannually, and the Executive Order contains a concluding paragraph expressing hope that 'this request will not prove too burdensome' and noting that '(t)he statements will be made available to the press.' There are no words in the Executive Order mandating, or requiring, under threat of some penalty, the filing of the financial statements, and, with the possible exception of the term 'Cabinet Members', there is no clear description of the persons included in the phrase 'Key Personnel and Chairmen and Members of Certain Boards, Commissions and Agencies' (to whom the Executive Order is directed).

During February, 1975, Butera by letter and through employes of the House of Representatives, requested the Governor to permit him to examine, inspect and copy all of the financial disclosure statements which had been filed by present and past Cabinet Members and 'Members of Certain Boards, Commissions and Agencies'. These requests were denied by Reece on behalf of the Governor. Reece's responses urged Butera to assist the Governor in obtaining financial statements from certain members of boards, commissions and agencies who had failed to file financial disclosures. In one of his letters an offer was made by Reece to grant Butera's request on the condition that Butera would file a financial disclosure statement. At about this time, the Governor issued a memorandum (dated February 26, 1975) which was not entitled an 'Executive Order', but which was directed to 'Cabinet Members, Members of Certain Boards, Commissions and Agencies and Key Personnel', setting forth a 'uniform financial interest disclosure form'. Once again there was no description of exactly who was expected to file these forms. On March 3, 1975, Butera filed an appeal to this Court.

Setting aside the obvious political vitriol found in the correspondence between the parties, the serious legal question presented to us is whether the financial disclosure statements filed in the Governor's office pursuant to the Executive Order of April 29, 1971, are public records under the Right To Know Act, thereby giving Butera a legal right to see them. Preparatory to the determination, we must examine the nature of an 'Executive Order'.

Under the Constitution of the Commonwealth of Pennsylvania '(a)ll power is inherent in the people', Pa.Const. of 1968, art. I, § 2, and no person nor branch of government has any more power than is provided by that absolute framework of government. Article IV, Section 1 of the Constitution states:

'The Executive Department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer, and Superintendent of Public Instruction and such other officers as the General Assembly may from time to time prescribe.' (Emphasis added.)

Article IV, Section 2, states, in pertinent part, that '(t)he supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed; . . .' and Article IV, Section 10, states that '(t)he Governor may require information in writing from the officers of the Executive Department, upon any subject relating to the duties of their respective offices.' There is no mention in the Constitution of 'Executive Orders'.

We have been referred to only two statutory provisions which mention an executive order. The first is found in Section 916 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, As amended, 71 P.S. § 306, which states:

'The Governor, by Executive Order, shall designate which of the powers and duties . . . shall be exercised by the Commissioner of Correction and which shall be exercised by the boards of trustees.'

This provision was intended to resolve any conflicts between the Commissioner and boards of trustees of state correctional institutions. The second reference is found in Section 302 of the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, As amended, 45 P.S. § 1302, which provides that certain documents shall be codified in the Pennsylvania Code. The list of documents to be codified includes '(a)ll proclamations and executive orders of the Governor which are general and permanent in nature'.

The intriguing question concerning the legal status of a Governor's executive order is a question of first impression. We start with the proposition that the Governor has that power which has been delegated to him by the Constitution and statutory provisions, or which may be implied properly from the nature of the duties imposed upon the Governor. Our research discloses ³ that there are three types of executive orders.

The first type includes formal, ceremonial and political orders, which are usually issued as proclamations. The usual purpose of a proclamation is to declare some special day or week in honor of or in commemoration of some special thing or event. It is issued to make the public aware of the commemoration and usually has no legal effect. For example, if, upon the passing of a President of the United States, the Governor, by executive order, would direct that all flags be flown at half-mast for a period of time, his order could not be enforced unless there was some constitutional or statutory provision authorizing such an order. If, however, the Governor ordered the closing of all governmental offices during the day of the funeral of a deceased President, obviously this could effect legal rights, such as the filing of an appeal within the time required by statute.

The second class of executive orders is intended for communication with subordinate officials in the nature of requests or suggested directions for the execution of the duties of the Executive Branch of government. Like the first classification, this class is not legally enforceable, and the Governor could not seek a court order to enforce his executive order. The executive order would carry only the implication of a penalty for noncompliance, such as a possible removal from office, an official demotion, restrictions on responsibilities, a reprimand, or a...