Erik Arneson, individually and in his official capacity as Executive Director of the Office of Open Records, and the Senate Majority Caucus, Petitioners
Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania, Department of Community and Economic Development, and Office of Open Records, Respondents
Argued, March 11, 2015
Court of ORIGINAL JURISDICTION.
Joel L. Frank, West Chester, for petitioner Erik Arneson. Matthew H. Haverstick, Philadelphia, for petitioners.
Charles R. Brown, Harrisburg, for respondent, Office of Open Records. Kenneth L. Joel, Harrisburg, for respondents. Jonathan D. Koltash, Harrisburg, for respondents.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH,
Judge. Judge McGinley dissents. Judge Covey did not participate in this decision. DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI. Judges McGinley and Leadbetter join in this dissenting opinion.
In this case, the Court discerns legislative intent to determine whether the Executive Director of the Office of Open Records (OOR), a unique and sui generis independent body, was meant to be independent from the executive branch and insulated from the Governor's constitutional power to remove appointees at-will.
The legal concept of " independent administrative agency" has generated a wealth of commentary, but the defining characteristic of an independent agency is precisely that -- the agency is independent in the sense that it is free from the control and influence of the chief executive. In this vein, our courts have recognized that if the legislature creates a public office, it may impose terms regarding tenure and removal as it sees fit, and if the legislature intends for an agency to be " independent," then the legislature has the authority to circumscribe the Governor's removal power.
No one disputes that the OOR is a unique administrative agency and that the Executive Director, as the head of this agency, assumes an inimitable role in its operations. The OOR is a quasi-judicial
tribunal tasked with the delicate function of applying the statutory standards of the Right-to-Know Law (RTKL). The RTKL is a ground-breaking overhaul in the law concerning governmental records and documents that must be disclosed to the public. The current RTKL marked a significant shift from the former Right to Know Act of 1957, which imposed the burden on the requester to show a record was subject to access, and now requires that government agencies and officials establish why it is not.
Significantly, the OOR's statutory obligations include determining whether even documents of the Governor, and the executive branch in general, should be disclosed to the public; hence, the two entities can often be diametrically opposed for purposes of the RTKL. The OOR is structurally and functionally independent from the executive branch; the Executive Director oversees the OOR, its quasi-judicial functions, and has a statutorily-fixed term that exceeds the appointing Governor's term. The Court considers these and additional factors in ascertaining whether the legislature, in enacting a RTKL designed to promote public access to information, expressed intent to limit a Governor's power to remove the Executive Director except for cause.
After careful review, we conclude that the legislature has expressed such intent.
On February 18, 2015, the parties submitted a joint stipulation of facts and exhibits, agreeing to the following.
On January 13, 2015, then-Governor Tom Corbett lawfully appointed Erik Arneson to be the Executive Director of the OOR, designating his tenure as January 13, 2015, through January 13, 2021, " and until your successor is appointed and qualified, if you shall so long behave yourself well." (Stipulation of Facts, Ex. B.) Arneson received his commission on that same date, and, on January 16, 2015, he took the oath of office.
On January 20, 2015, Governor Thomas W. Wolf officially became the new Governor of Pennsylvania. Governor Wolf authored a letter dated January 20, 2015, and delivered it to Arneson on January 22, 2015. This letter informed Arneson that Governor Wolf was terminating his employment as the OOR's Executive Director immediately. (Stipulation of Facts, Ex. D.)
On January 26, 2015, Arneson, individually and in his official capacity as Executive Director of the OOR, and the Senate Majority Caucus (together, Arneson) filed a petition for review in the nature of a
complaint for mandamus and declaratory relief in this Court's original jurisdiction against Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania, the Department of Community and Economic Development (DCED), and the OOR (together, Governor Wolf).
In his petition for review, Arneson pled a mandamus count and a count for declaratory relief, contending that Governor Wolf terminated his employment as the Executive Director of the OOR in violation of the Pennsylvania Constitution and the RTKL. In his prayer for relief, Arneson seeks, among other things: (1) a writ of mandamus restoring him to the position of Executive Director; (2) backpay and benefits; (3) a declaration that Governor Wolf violated the Pennsylvania Constitution and the RTKL; and (4) an injunction permanently enjoining Governor Wolf from making further attempts to remove him as Executive Director without cause.
Following the filing of pleadings and applications by the parties, including Arneson's application for a special and preliminary injunction, President Judge Dan Pellegrini issued an order dated February 4, 2015. In this order, President Judge Pellegrini noted that Arneson withdrew his application for a special and preliminary injunction and ordered that the case be listed for the March argument session before the Court en banc. President Judge Pellegrini further directed the parties to file cross-motions for summary relief on stipulated facts and briefs.
The parties then filed cross-motions for summary relief and briefs in support of their respective positions.
In his brief, Arneson contends that by enacting this new RTKL and creating the position of Executive Director, the legislature expressed its intent to limit a Governor's removal power and that in accordance with principles of statutory construction, the Executive Director can only be removed for cause. Arneson argues that to limit a Governor's removal power, explicit statutory language is unnecessary, and that the basic structure and specific provisions of the RTKL clearly reflect the legislature's general intent to curtail a Governor's power to remove an Executive Director at his pleasure.
In advancing this argument, Arneson relies principally upon four factors: (1) the Executive Director serves for a mandatory six-year term that exceeds or staggers the four-year term of the initially-appointing Governor; (2) the legislature barred an Executive Director from seeking election or appointment to a political office during his tenure as Executive Director and for one year after his tenure; (3) the OOR is a unique and independent administrative agency that reviews other agency's actions under the RTKL, including the Office of the Governor; and (4) the goal of the RTKL is to promote access to official government information and this goal can only be accomplished if the Executive Director and the OOR remain independent from the Governor and the Executive Director is not under the pressure of being removed at the Governor's pleasure.
In addition, Arneson asserts that the Executive Director performs quasi-judicial
duties in his role at the OOR and cannot be removed absent cause based upon separation of powers principles. For support, Arneson cites the expression of rationale advocated by former Chief Justice Jones in his special concurrence in Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (Pa. 1961).
In his brief, Governor Wolf argues that there is no explicit statutory language governing the removal of the Executive Director, and, therefore, it is presumed that the Executive Director can be removed absent cause. Governor Wolf contends that even though the six-year term for an Executive Director is longer than the appointing Governor's term, it is still a term of years and does not overcome the presumption that an appointee can be removed at-will.
Governor Wolf also advocates that the RTKL does not expressly designate the OOR as an " independent agency," and states that the OOR is housed by statute within the DCED, a department of the executive branch. Governor Wolf further dismisses Arneson's claim that the OOR needs to be independent from the Governor and the executive branch, contending that the OOR's decisions are not accorded any deference when they are reviewed on appeal; the OOR's decisions are automatically stayed pending appeal; this Court can act as fact-finder on appeal; and the judiciary, rather than the OOR, serves as the independent decision-maker in requests for records.
Finally, Governor Wolf contends that there is no " quasi-judicial" exception to his removal power under the Pennsylvania Constitution and that, even if one existed, the RTKL does not create a " quasi-judicial" entity or a " quasi-judicial" Executive Director. Governor Wolf notes that Chief Justice Jones' commentary in Bowers merely represented the view of one Justice and did not garner the joinder of any other Justices in that case.
Our determination of whether the Governor can remove the Executive Director of the OOR without cause is necessarily premised on an analysis of the Pennsylvania Constitution and established precedent.
Article VI, Section 7 of the Pennsylvania Constitution concerns public officers such as the Executive Director of the OOR and provides:
All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
Pa. Const. article VI, § 7 (emphasis added).
This section of the Pennsylvania Constitution is read in conjunction with Article VI, Section 1, which discusses the appointment of officers not provided for in the
Constitution and states that: " All officers, whose selection is not provided for in th[e] Constitution, shall be elected or appointed as may be directed by law." Pa. Const. article VI, § 1 (emphasis added). Article VI, Section 1 is applicable to the matter at hand because the Executive Director's succession of appointment is not provided for in the Constitution; rather, it is set forth in the RTKL as follows: " Within 90 days of the effective date of this section, the Governor shall appoint an executive director of the office who shall serve for a term of six-years. . . . The executive director may serve no more than two terms." Section 1310(b) of the RTKL, 65 P.S. § 67.1310(b).
The correlation between an appointer's removal power in Article VI, Section 7, and the legislative power to create appointed offices in Article VI, Section 1, has long been recognized by our Supreme Court:
It is established in this State beyond respectable controversy that, where the legislature creates a public office, it may impose such terms and limitations with reference to the tenure or removal of an incumbent as it sees fit. Whether an appointed civil officer holding a legislatively created office is subject to removal at the pleasure of the appointing power depends upon legislative intent, to be gleaned from the statute creating or regulating the office.
Commonwealth ex rel. Sortino v. Singley, 481 Pa. 367, 392 A.2d 1337, 1339 (Pa. 1978) (emphasis added) (quotations and citations omitted). See Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354, 356 (Pa. 1956) (" There is nothing in the Constitution prohibiting such [legislative] action while, on the other hand, Article XII, Section 1 [now Article VI, Section 1], expressly admits of it." ). Indeed, our Supreme Court " has consistently recognized that, when the General Assembly creates a public office, it may impose terms and limitations on the removal of the public officer so created." Burger v. School Board of McGuffey School District, 592 Pa. 194, 923 A.2d 1155, 1164 (Pa. 2007) (citations omitted).
As the judicial branch, it is this Court's constitutional mandate to decipher legislative intent. In Bowers, our Supreme Court instructed: " [W]hether the legislature in creating an appointive office has evidenced by its enactment an intention that the tenure of the appointee shall not be subject to termination at the pleasure of the appointing power presents a pure question of statutory construction which is peculiarly and exclusively the function of the judiciary to resolve." 167 A.2d at 482.
There has never been a holding by the Supreme Court or this Court that a statute must explicitly say " the officer may only be removed for cause" to find a legislative limitation on removal. In this case, the legislature did not specifically state in the RTKL that the Executive Director could be removed only for cause. Conversely, the legislature did not state in the RTKL that the Executive Director serves at the pleasure of the Governor. Accordingly, this Court must analyze the RTKL and relevant statutes to discern the legislature's intent on the topic. Singley, 392 A.2d at 1339; Bowers, 167 A.2d at 482; Venesky v. Ridge, 789 A.2d 862, 864 (Pa.Cmwlth. 2002) ( en banc ), aff'd without opinion in 570 Pa. 461, 809 A.2d 899 (Pa. 2002).
We begin by recognizing that section 1310(b) of the RTKL creates the office of the Executive Director and sets forth a fixed term for the position:
(b) Executive director. -- Within 90 days of the effective date of this section, the Governor shall appoint an executive director of the office who shall serve for a term of six years. Compensation shall be set by the Executive Board established under section 204 of the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929. The executive director may serve no more than two terms.
Section 1310(b) of the RTKL, 65 P.S. § 67.1310(b) (emphasis added). The Executive Director's fixed, six-year term exceeds the four-year term of the appointing Governor. Similarly, by virtue of the two-term or twelve-year limit proscribed in the statute, a reappointed Executive Director will outlast any two-term Governor.
In Waetson, the governor appointed the plaintiff in 1952 as a member of the Pennsylvania Turnpike Commission (Commission) for a term expiring in 1961. In 1955, a newly-elected Governor dismissed the plaintiff in reliance on his constitutional authority under then Article VI, Section 4 -- now Article VI, Section 7 -- of the Pennsylvania Constitution. Our Supreme Court analyzed the statute creating the Commission and legislative intent to determine " whether the Governor had the power . . . to remove from office, at his pleasure, a member of the [Commission] during the fixed term of office for which he was appointed and confirmed." 125 A.2d at 355.
Our Supreme Court noted that pursuant to statute, the Commission consisted of four members, who shall continue in office for terms of four, six, eight, and ten years, respectively. The court concluded that the composition of the Commission and the nature of the individual terms was a significant factor in deciding whether the legislature intended to limit the Governor's removal power. In particular, the court determined:
The purpose of the foregoing provision as to the terms of office of the Commissioners . . . is patent. It was designed so that, by the prescribed rotation, the terms of three of the four appointed members of the Commission would always be current. . . . Were the Commissioners to be held removable at the pleasure of the Governor, the carefully expressed scheme of term rotation would be effectually nullified. If it be countered that the Governor, in appointing to a vacancy created by his dismissal of a Commissioner, would respect the spirit of the Act . . . the answer is that the power so attributed to the Governor would still violate the plain intendment
of the Act. He could render all of the offices vacant at one time which, obviously, the Act was specifically designed to make impossible.
125 A.2d at 357.
Accordingly, the court in Watson concluded that the prescribed rotation of the Commissioners' terms, in and of itself, evidenced the legislature's intent that the Commissioners only be removed for cause. The Court clearly discerned legislative intent by focusing on the net effect of allowing the Governor to remove the Commissioners without cause. In essence, such unbridled power by the governor to remove the Commissioners without cause would nullify the intent that the Commissioners' terms overlap the Governor's terms of office. This legal tenant originating in Watson has been described as the " fixed, staggered rule," Singley, 392 A.2d at 1339, and may be summarized as follows. " [W]here public officers are appointed to a legislatively created commission or board, for a statutorily fixed term with staggered expiration dates, the presence of the staggered term provision indicates a legislative intent that the holders of the office are not to be removed at the pleasure of the appointor." Naef v. City of Allentown, 424 Pa. 597, 227 A.2d 888, 890 (Pa. 1967).
In Venesky, a Governor appointed the plaintiff as a member of the Pennsylvania Game Commission (Game Commission) in 1998 and the same Governor dismissed the plaintiff in 2000 before the expiration of the plaintiff's term. Under the then-current Game and Wildlife Code, the term of office for all of the commissioners was the same, eight years, and did not provide for staggered expiration dates. After acknowledging Watson's " fixed, staggered rule," this Court focused on the fact that from 1937 until 1987, the former Game and Wildlife Code had staggered terms, but the legislature created a new Game and Wildlife Code in 1998 that omitted the staggered terms and replaced them with fixed terms that concluded uniformly. Venesky, 789 A.2d at 865. Ultimately, this Court determined that the legislature's shift from staggered terms to non-staggered terms in the Game and Wildlife Code was a dispositive factor in ascertaining legislative intent, noting that the previous version of the Game and Wildlife Code was an " explicit, regulated statutory scheme" and that the legislative change reflected the intent to alter this scheme. Id. For this reason, we concluded that the Governor could remove a member of the Game Commission at his pleasure.
In Bowers, the Pennsylvania Supreme Court applied Watson's " fixed, staggered rule" to the Governor's dismissal of a member of the Pennsylvania Labor Relations Board. The Act in effect at that time stated:
One of the original members shall be appointed for a term of two years, one for a term of four years, and one for a term of six years, but their successors shall be appointed for terms of six years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he is to succeed.
167 A.2d at 482 (quoting 43 P.S. § 211.4).
Due to the passage of time from when the Act was enacted (1937) and the appointment at issue was made (1955), the Governor in Bowers seemingly appointed the board member to a four-year term in order to fill the unexpired term of a vacant predecessor who was originally appointed to a six-year term. That same Governor then removed the board member before the member's term expired.
In discussing the purpose behind the " fixed, staggered rule," and concluding that the Governor could not remove the board member absent cause, the court in Bowers stated, in relevant part:
The legislature by providing in the Pennsylvania Labor Relations Act staggered expiration dates for fixed terms of Board members of a duration which, if fulfilled, would extend beyond the incumbency of the appointing Governor . . . evidenced a desire and intent . . . that duly confirmed members of the Pennsylvania Labor Relations Board possess tenure for the fixed terms for which they are appointed and may not be removed by the Governor except for cause.
167 A.2d at 483-84 (italics emphasis in original, bold emphasis added). Relying on this rationale, the Bowers court found that the case before it could " not be distinguished, in principle, from Watson." Id. at 484-85.
Here, there is only one appointee, the Executive Director, who serves a fixed, six-year term, and the only staggering that could occur is between the Governor and the Executive Director. Although the terms at issue in Venesky were eight-year terms, the Game Commission consisted of eight members, which, unlike the instant case, could be staggered amongst themselves. In one regard, the Executive Director's six-year term is staggered vis-à-vis the four-year term of the originally appointing Governor, and the same concerns prompting the fixed, staggered rule seem to be equally present when the transcending of terms is between a single-appointee position and the Governor. Although this Court declines to extend the fixed, staggered rule to the circumstances of this case in a wholesale manner, we view the fact that the Executive Director's term exceeds the Governor's term as indicative of legislative intent that the Executive Director not be removed except for cause. Consistent with our Supreme Court's rationale in Watson and Bowers, we focus on the net effect of allowing the Governor's removal of the Executive Director without cause and find it would nullify the legislature's intent in creating terms which overlap.
Notably, our conclusion is bolstered by the legislature's express designation of the mandatory " shall" and its simultaneous utilization of the permissive " may" in section 1310(b) of the RTKL. See Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16, 19 (Pa. Super. 1985) (" [I]t has long been the rule in Pennsylvania that the word 'shall,' although usually mandatory or imperative when used in a statute, may nonetheless be directory or permissive, depending upon the Legislature's intent." ). In this context, the legislature's intent in differentiating the nature between an Executive Director's two terms of office is best understood as reflecting its desire that the Executive Director must or " shall" serve for a term of six years and that the Governor can or " may" decide whether to extend that into another six-year term. See 65 P.S. § 67.1310(b) (stating that the Executive Director " shall serve for a term of six years" and " may serve no more than two terms" ); Waros v. Borough of Vandergrift, 161 Pa.Cmwlth. 538, 637 A.2d 731, 735 (Pa.Cmwlth. 1994) (" Particularly significant in the present case is the fact that the legislature has used both the word 'shall' and the word 'may' in the same sentence, which suggests that the legislature intended 'shall' and 'may' to have separate meanings and not to be interchangeable." ).
Stated differently, section 1310(b) of the RTKL implies that the first term is mandatory and that the second term is permissive, at the discretion of the Governor, and the only time in which the Governor can decide whether to remove an Executive Director. Cf. Meade v. City of Philadelphia, 65 A.3d 1031, 1037-38 (Pa.Cmwlth. 2013) ( en banc ). This interpretation is corroborated by the remarks of a representative of the General Assembly during floor debate. See Pa. Legislative Journal, Session of 2007, 191st of the General Assembly, No. 112, at 2582 (Dec. 10, 2007) (Representative Josh Shapiro) (" [A]s it relates to the executive director and what we have tried to do to accomplish greater independence for the executive director is to vest that executive director with a six-year term, a term that does not necessarily run concurrent with one Governor or another, to create more independence for that office. . . ." ) (emphasis added).
Accordingly, this Court determines that an Executive Director's fixed term of six years, combined with other compelling factor(s) reflecting the legislature's intent to curtail the Governor's removal power, supports the conclusion that the Executive Director can only be removed for cause.
Independent Quasi-Judicial Agency
However, our review does not end here. When the legislature creates an independent administrative agency that exercises quasi-judicial functions, this is a strong indicator that the legislature intended that the agency's members be removed only for cause. The rationale for inferring such intent is that if an agency is sufficiently independent from the executive, the executive should not have control or coercive influence, direct or indirect, over the agency when the agency performs the quasi-judicial function of adjudicating the statutory rights of parties in accordance with legislative standards. See Bowers, 167 A.2d at 484 (considering the Pennsylvania Labor Relations Board, its administrative expertise, and the nature of its adjudicatory functions and concluding: " It is plain enough that, in the public interest, such Board members were not to be made amenable to political influence or discipline in the discharge of their official duties." ); Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 198 A. 635, 636 (Pa. 1938) (stating that the power of removal is usually correlative with the power of appointment, " except in those cases where the public welfare requires that an official charged with important governmental functions should be protected against interference on the part of the executive" ). See also section 102 of the Judicial Code, 42 Pa.C.S. § 102 ...