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MILTON J. SHAPP v. ROBERT J. BUTERA (12/08/75)

decided: December 8, 1975.

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



Appeal from the denial by the defendants of a request for access to financial statements of public officials.

COUNSEL

Edward C. Hussie, with him Matthew F. Coppolino and John J. Burfete, for appellant.

Burton D. Morris, Deputy Attorney General, with him Lawrence J. Beaser, Special Assistant Attorney General, and Robert P. Kane, Attorney General, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Blatt did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 22 Pa. Commw. Page 230]

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

[ 22 Pa. Commw. Page 231]

    the Appellate Court Jurisdiction Act of 1970)*fn1 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,*fn2 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 employe, officer, director, trustee, consultant, or in any other capacity; (b) the listing of ownership

[ 22 Pa. Commw. Page 232]

    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 ...


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