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NICHOLAS MAZZIE AND COUNCIL 13 v. COMMONWEALTH PENNSYLVANIA HONORABLE RICHARD THORNBURGH (07/20/81)

decided: July 20, 1981.

NICHOLAS MAZZIE AND COUNCIL 13, AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, BY ITS TRUSTEE AD LITEM, GERALD W. MCENTEE, PETITIONERS-APPELLEES,
v.
COMMONWEALTH OF PENNSYLVANIA; HONORABLE RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; AND ROBERT C. WILBURN, SECRETARY OF BUDGET AND ADMINISTRATION, RESPONDENTS-APPELLANTS, JOINT BARGAINING COMMITTEE OF THE PENNSYLVANIA SOCIAL SERVICES UNION, LOCAL 668, AND THE PENNSYLVANIA EMPLOYMENT SECURITY EMPLOYEES' ASSOCIATION, LOCAL 675, SEIU, AFL-CIO, BY ITS TRUSTEES AD LITEM, ANDREW STERN AND EDWARD FARRELL; AND THE PENNSYLVANIA SOCIAL SERVICES UNION, LOCAL 668, SEIU, AFL-CIO, BY ITS TRUSTEE AD LITEM, ANDREW STERN, INTERVENORS-APPELLEES



No. 80-3-791, Appeal from the Order of the Commonwealth Court at No. 2499 C.D. 1980

COUNSEL

David H. Allshouse, Allen C. Warshaw, Chief, Litigation (Civil), Deputy Atty. Gen., Harvey Bartle, III, Atty. Gen., for respondents-appellants.

Richard Kirschner, Alaine S. Williams, Philadelphia, for petitioners-appellees Mazzie, et al.

Bruce M. Ludwig, Philadelphia, for Joint Bargaining Comm.

O'Brien, Chief Justice. Kauffman, J., files a dissenting opinion in which Flaherty, J., joins.

Author: O'brien

[ 495 Pa. Page 130]

OPINION OF THE COURT

This is an appeal from an order of the Commonwealth Court dated November 6, 1980, granting appellees preliminary injunctive relief from the Commonwealth's enforcement of financial disclosure requirements pursuant to Executive Order 1980-18. The order stipulated that an appeal by the Commonwealth would not act as an automatic supersedeas under Pa.R.A.P. 1736. On November 7, 1980, the Commonwealth filed a notice of appeal to this Court pursuant to 42 Pa.C.S.A. §§ 723(a), 5105, and Pa.R.A.P. 311(a)(4), and requested a stay pursuant to Pa.R.A.P. 1732(b), which we denied.

Appellees commenced this action in Commonwealth Court on October 31, 1980, by a Petition for Review and Motion for Temporary Restraining Order. Appellees are Nicholas Mazzie, an employee of the Department of Agriculture, and Council 13, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter, AFSCME), the exclusive bargaining agent for approximately 1,500 Commonwealth employees affected by Executive Order 1980-18. On November 3, 1980, the Joint Bargaining Committee of

[ 495 Pa. Page 131]

    the Pennsylvania Social Services Union, Local 668, and the Pennsylvania Employment Security Employees' Association, Local 675, SEIU-AFL-CIO; and the Pennsylvania Social Services Union, Local 668, SEIU, AFL-CIO, the exclusive bargaining representatives for certain other Commonwealth employees subject to Executive Order 1980-18, intervened as petitioners. The three petitioner unions are parties to either a collective bargaining agreement or a memorandum of understanding with the Commonwealth, a public employer under the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. § 1101.101 et seq. (hereinafter, PERA).

On September 3, 1980, Governor Thornburgh issued a three-part Executive Order 1980-18, promulgating a Code of Conduct for certain state officials and employees of the executive branch. Part I of the Code, entitled "Restricted Activities", prohibits certain activities which could present a conflict of interest with public employment. Part III, entitled "Criminal Charges", contains procedures to be followed if persons subject to the Code are charged with criminal conduct. Part II of the Code requires certain executive branch officials and employees to file a "Statement of Financial Interest" disclosing five types of information: (1) in-state and out-of-state real property interests; (2) personal economic interests such as stocks and bonds; (3) interest in any business entity doing business with a government agency; (4) gifts in excess of $100 other than from family members; and (5) certain liabilities. In this action appellees contest only Part II of the Code requiring disclosures of financial information.

Persons subject to the filing requirements are the Governor, Lieutenant Governor, heads of agencies and departments, their deputy secretaries, and those at the level of bureau head and above. Also covered are those persons in sensitive positions such as procurement officers and purchasing agents, employees who administer grants and subsidies, employees who perform or review licensing and inspecting functions, those who render or review decisions concerning

[ 495 Pa. Page 132]

    tax liability, as well as chairpersons and members, executive directors, counsel and administrative secretaries of boards and commissions under the Governor's jurisdiction.

Approximately 15,500 out of the 100,000 employees of the executive branch are subject to the filing requirement, including at least 4,500 members of collective bargaining units. Under terms of the Executive Order, the Financial Statements are not to be made available for commercial purposes but will be available upon request for "inspection by accredited reporters employed by general news organizations." Failure to comply with disclosure requirements may be the basis for disciplinary action, including discharge.

The original deadline for filing the Statements of Financial Interest was set for November 3, 1980. On or about October 22, 1980, the Commonwealth began distributing financial disclosure forms to affected employees. Council 13, AFSCME, took the position that the Code's disclosure requirement constituted a violation of the collective bargaining agreement between Council 13 and the Commonwealth. After meeting unsuccessfully with various Commonwealth officials to resolve the problem, on October 28 and November 3, 1980, the Union filed grievances with the Bureau of Labor Relations for the Commonwealth charging Governor Thornburgh with unilaterally altering the terms and conditions of employment without prior discussion or negotiation with Council 13 in violation of Article I, Section 1 and Article XXXVII, Section 6 of its collective bargaining agreement with the Commonwealth. On November 3, 1980, Council 13 filed an unfair labor practice charge with the Pennsylvania Labor Relations Board, charging respondents with violating Sections 803 and 1201(a)(4), (5), and (9) of the PERA, 43 P.S. §§ 1101.803, 1101.1201(a).

On October 31, 1980, appellees commenced this action in Commonwealth Court to enjoin the Commonwealth from requiring state employees under the Governor's jurisdiction to comply with Executive Order 1980-18 and from taking disciplinary action against any employees who refuse to comply. On that same day, the court entered a temporary

[ 495 Pa. Page 133]

    restraining order which granted the relief requested. On November 6, 1980, after a hearing on appellees' motion for a preliminary injunction, the court continued its previous order pending final disposition of the case but exempted from its provisions certain higher level state officials and employees.

On appeal the Commonwealth maintains that Commonwealth Court was not justified in enjoining enforcement of Part II of Executive Order 1980-18 since appellees failed to establish the necessary prerequisites for granting a preliminary injunction.*fn1 Specifically, it contends appellees did not demonstrate a clear and immediate right to relief on the merits and appellees failed to establish that greater injury would result from refusing the injunction than from granting it. In the alternative the Commonwealth argues if, as appellees maintain, the financial disclosure requirements are a matter for collective bargaining, the PLRB has exclusive ...


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