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decided: October 21, 1985.


Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of Fraternal Order of Police Lodge No. 5 and Robert S. Hurst v. City of Philadelphia, W. Wilson Goode, Mayor and Chief Executive Officer and George J. Sambor, Police Commissioner, No. 2977 July Term, 1985, and in case of Fraternal Order of Police, Lodge No. 5 and Robert S. Hurst, individually and in his capacity as President of Lodge No. 5, and Police Officer John Doe, in the representative capacity of a Police Officer who has been interviewed by the Philadelphia Special Investigation Commission v. City of Philadelphia and W. Wilson Goode, individually and in his capacity as Mayor, City of Philadelphia and Philadelphia Special Investigation Commission, an advisory Board created pursuant to Executive Order No. 5-85, No. 4088 September Term, 1985.


Robert B. Mozenter, with him, Anthony J. Molloy, Jr., and Michael S. Durst, Mozenter, Molloy & Durst, for appellants.

Carl E. Singley, Special Counsel, Philadelphia Special Investigation Commission, with him, Ralph J. Teti, Divisional Deputy City Solicitor, for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 92 Pa. Commw. Page 341]

Before us are appeals of two separate Philadelphia Common Pleas Court orders which, in effect, held that the Mayor of Philadelphia did not exceed the authority of his office in creating the Philadelphia Special Investigation Commission and that the Commission did not violate the Pennsylvania Open Meeting

[ 92 Pa. Commw. Page 342]

Law*fn1 when it adopted its Rules of Conduct for Commission Hearings.

The Fraternal Order of Police, Lodge No. 5 (FOP), initiated the two actions which sought (1) by way of a complaint in equity and accompanying motion for special or preliminary injunction to have the Commission declared an illegal entity under the Philadelphia Home Rule Charter and (2) by way of an amended complaint in mandamus and motion for preliminary injunction to have the Commission enjoined from proceeding until it validly promulgated its rules of conduct. The common pleas court denied the motions and summarily dismissed the complaints in each instance.*fn2 An application for supersedeas to this Court at No. 2649 C.D. 1985 was denied pending disposition of the merits of these appeals.

The Mayor, by Executive Order No. 5-85,*fn3 established the Commission to investigate the May 13, 1985 Osage Avenue incident which was the "result of an

[ 92 Pa. Commw. Page 343]

    interaction between the so-called MOVE organization and various departments and agencies in the Executive and Administrative branch of Philadelphia City

[ 92 Pa. Commw. Page 344]

    government." The Commission was authorized to conduct investigations and hold hearings and, vested with the authority of the executive and administrative branch, to issue subpoenas and compel the attendance and testimony of witnesses and the production of documents. The Commission was instructed to "find facts and prepare a report for the Mayor and the Citizens of Philadelphia concerning the operation of City government as it relates . . . to the incident. . . ." (Emphasis added.)

[ 92 Pa. Commw. Page 345]

Our scope of review of the trial court's orders denying preliminary relief is limited to whether there were any apparently reasonable grounds to justify the Chancellor's actions, Pennsylvania Interscholastic Athletic Association v. Geisinger, 81 Pa. Commonwealth Ct. 421, 426, 474 A.2d 62, 65 (1984), and our review of its orders dismissing the complaints is whether it abused its discretion or committed an error of law. Wightman Health Center v. Office of the Page 345} Treasurer, 59 Pa. Commonwealth Ct. 634, 430 A.2d 717 (1981).

The FOP contends that the trial court erred in holding that Sections 3-100(h) and 3-917 of the Charter*fn4 provided the Mayor with the authority to issue Executive Order No. 5-85 and create the Commission. It argues that the Mayor has usurped the authority of the legislative branch of City government, i.e., Council, and invaded the power delegated to various departmental heads of City government and their officers, i.e., the Fire Marshall and the Medical Examiner.

The Charter provides that the executive and administrative power of the City is exclusively vested in and exercised by the Mayor and the departments, commissions and boards established in it. 351 Pa. Code § 1.1-102. The Mayor is the chief executive officer of the City and is responsible for the conduct of the executive and administrative work of the city and for law enforcement within its boundaries. 351 Pa. Code § 4.4-100.

Section 3-100 of the Charter provides that the executive and administrative work of the City shall be performed by: the Mayor, the managing director, department heads, etc., and "[s]uch additional advisory boards as the Mayor may appoint." An advisory board's composition and duty is defined in Section 3-917 of the Charter, which states: "The Mayor may upon the request of the head of any department or of his own volition appoint a board of seven citizens to act in an advisory capacity to such department regarding the department's work or any specified phase of it." (Emphasis added.)

A reading of these provisions convinces us that the Mayor created a properly authorized advisory

[ 92 Pa. Commw. Page 346]

Commission. Our review of the pertinent Charter provisions imposing the authority and responsibility of the legislative branch of City government on Council limits its scope of inquiry and investigation to prospective legislative ordinances.*fn5 Executive Order No. 5-85 in no way usurps the Council's responsibility.

The duty of the Fire Marshall,*fn6 the Coroner,*fn7 and other departmental heads to conduct their own respective investigations is not infringed upon by the Commission's authorization. The Mayor, as Chief Executive, may seek independent advice as to the departments' actions, for which he is responsible, in handling the City's confrontation with the MOVE organization.

The Commission, pursuant to Section 3-917, may hold hearings and issue subpoenas to investigate the executive and pertinent administrative departments.*fn8 In making findings concerning the various departments' conduct in handling the incident, the Commission is acting only in an advisory and consulting capacity, with no power whatsoever to bind the Chief Executive or the individual department heads.*fn9 In short, its duty is to examine the activity of the departments, determine credibility conflicts and suggest improvements in their administration.

[ 92 Pa. Commw. Page 347]

It must be remembered at all times that the Commission, in conducting itself, is merely a board of inquiry functioning without pre-judgment, bias, or presumption of incompetence or culpability. At no time, by attitude, tone or personal suspicion, may it convert the inquiry into an accusatory or adversarial proceeding. Such a posture would exceed the scope of its authority and would invalidate the Commission under Section 3-917 of the Charter.

Moreover, the Charter's authority specifically limits the scope of this inquiry.*fn10 It is not directed to the Chief Executive. It is specifically restricted to the departments engaged in the resolution of this controversial, unique occurrence. However, should the Commission find facts which give rise to potential violations of the Criminal Code, it would then be incumbent for the District Attorney or, in his reluctance, the Attorney General, to commence an investigation with the assistance of a Special Grand Jury to determine the extent of culpability, if any, of the Chief Executive, the department heads, and/or their agents or employees.

Acting consistently in this posture, the Commission is not on this record infringing on the duties of the fire marshall, the medical examiner, police, fire and other departmental heads. That various state and county officials, such as the Attorney General, the District Attorney of Philadelphia and the City Controller have the authority to lawfully investigate the activities of these departments in pursuing violations of the law does not negate the authority of this Commission as it carries out its limited mandated mission.

[ 92 Pa. Commw. Page 348]

The FOP also contends that the Commission violated the Pennsylvania Open Meeting Law (Sunshine Law) by adopting its Rules of Procedure for Commission Hearings at a closed meeting.*fn11 It argues that the Commission, vested with the full authority of the executive and administrative branch of City government, is performing an essential government function and should be bound by the provisions of the Sunshine Law.

However, the Commission, as established, is a temporary, limited purpose, advisory board without authority to make a binding recommendation which would affect the substantive rights of any individual. Thus, this Commission lacks the essential character of the zoning boards, school boards, utility commissions, etc., all of which are controlled by the Sunshine Law.

We agree with the analysis of the Oklahoma Supreme Court which, although not faced with an identical open meeting law, addressed a statute similar in principle:

Although different courts must construe different statutory provisions, it appears that the majority of other jurisdictions have generally held that ad hoc committees or citizens advisory committees, empaneled for the purpose of furnishing information and recommendations to governing or decision-making entities, are not subject to the open meeting laws unless they have actual, or defacto decision-making authority.

Sanders v. Benton, 579 P.2d 815, 819 (1978) (emphasis added).

Finding no error of law, we affirm the two orders of the common pleas court.

[ 92 Pa. Commw. Page 349]


The orders of the Philadelphia County Common Pleas Court, No. 2977 July Term 1985 dated July 16, 1985 and No. 4088 September Term 1985 dated September 27, 1985, are affirmed.



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