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Green v. Wolf

Commonwealth Court of Pennsylvania

December 4, 2017

William J. Green, IV, individually and in his official capacity as Chairman of the School Reform Commission, Petitioner
v.
Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania; The School Reform Commission of the School District of Philadelphia; and Marjorie Neff, in her Capacity as member and putative Chair of the School Reform Commission, Respondents

          Argued: October 19, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge [1] HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          JOSEPH M. COSGROVE, Judge

         In this matter, arising in our original jurisdiction, William J. Green, IV (Petitioner) challenges his removal by Governor Thomas W. Wolf (Governor Wolf) as chairman of the School Reform Commission (SRC).[2] For the reasons set forth below, we dismiss Petitioner's Application for Summary Relief and Amended Petition for Review, and sustain Governor Wolf's preliminary objections. As such, any request for injunctive relief is dismissed as moot.

         The School District of Philadelphia[3] was declared distressed by the Secretary of Education in 2001. Following this declaration, the SRC was created, consisting of both gubernatorial appointees and members appointed by the mayor of Philadelphia. Nine years later, a vacancy occurred on the SRC, allowing for yet another gubernatorial appointment. On January 17, 2014, then-Governor Tom Corbett (Governor Corbett) nominated Petitioner to a five-year term on the SRC, with Senate confirmation following on February 4, 2014. Pursuant to Section 696(a), Governor Corbett appointed Petitioner chairman of the SRC on February 18, 2014. This appointment did not require Senate confirmation.

         On March 2, 2015, Governor Wolf removed Petitioner as SRC chairman and replaced him with Respondent Marjorie Neff (Neff) that same day. More than thirteen months later, on April 19, 2016, Petitioner filed his initial petition for review as well as his application for summary relief. After Governor Wolf filed an answer, new matter, and preliminary objections, Petitioner filed the Amended Petition for Review and the Application for Summary Relief which are before us now.[4] It was to these that preliminary objections were again filed by Governor Wolf.

         By order dated July 18, 2016, this Court, McCullough, J., directed argument to be held on Petitioner's application and Governor Wolf's preliminary objections. This matter was heard en banc after additional briefing by the parties.

         In his Amended Petition for Review, Petitioner seeks quo warranto, mandamus, and declaratory and injunctive relief. Similarly, Petitioner's Amended Application for Summary Relief asserts that his right to relief is clear and requests this Court issue a writ of quo warranto removing Neff as Chair of the SRC, issue a writ of mandamus reinstating Petitioner as Chair, enter judgment declaring a Chair of the SRC may only be removed for cause, and issue a permanent injunction[5] enjoining any further attempts to remove Petitioner from the office of Chair of the SRC absent cause. In support, Petitioner cites, among other things, Section 696 of the School Code[6] and Arneson v. Wolf, 117 A.3d 374 (Pa. Cmwlth.), affirmed and adopted, 124 A.3d 1225 (Pa. 2015).[7]

         Governor Wolf offers the following preliminary objections (all of which are in the nature of a demurrer): (1) Petitioner's claims are time-barred by the statute of limitations set forth in 42 Pa.C.S. § 5522(b)(1); (2) quo warranto is not the appropriate cause of action to challenge Petitioner's replacement as Chair of the SRC; (3) mandamus may not be used to compel Governor Wolf to re-name Petitioner to the position of Chair of the SRC; (4) Petitioner had the potential to allege alternative remedies and therefore his claim for declaratory relief is without merit; and (5) Section 696 of the School Code does not condition the removal of a member of the SRC from the position of Chair.

         DISCUSSION

         According to Petitioner, "[t]his case hinges on one question: Can the Governor replace the chairman of the [SRC] absent clear and convincing evidence of malfeasance or misfeasance in office?" (Petitioner's Brief in Opposition to Governor Wolf's Preliminary Objections (Petitioner's Brief) at 1.) Section 696(b)(2) of the School Code provides for removal of commission members "from office during a term" only "upon proof by clear and convincing evidence of malfeasance or misfeasance in office…" 24 P.S. § 6-696(b)(2). As there is no question that Petitioner has not engaged in any such malfeasance or misfeasance, he argues that his removal from the chair of the SRC was improper.

         Essential to Petitioner's "one question" is the definition of "office." According to Petitioner, "the office of Chairman of the SRC falls squarely within the definition of 'public office, ' or 'civil office, ' entitling the holder of that office to protection under section 696." (Petitioner's Brief at 11.) However, despite Petitioner's arguments to the contrary, there is nothing in Section 696 which would suggest that the position of chair is a separate and distinct public office embodied with duties separate from those of the other SRC members, and possessing protections (i.e., removal only for cause) which are also applicable to the underlying office of member of the SRC.

         "A person will be deemed a public officer if the person is appointed or elected to perform duties of a grave and important character, and which involve some of the functions of government, for a definite term." Werner v. Zazyczny, 681 A.2d 1331, 1337 (Pa. 1996). Not everyone a governor appoints to a particular position holds an "office." The Supreme Court made this clear when it adopted and supplemented this Court's decision in Arneson I and recognized, unless otherwise mandated by statute, "the Governor's constitutional power to remove his appointees at-will." Arneson II, 124 A.3d at 1227 (emphasis added). This is, naturally, the default position encompassing an assessment of the Governor's removal power when a more restrictive legislative intent is not present, or when the position in question cannot be considered an office within the constitutional sense.

         In applying the Werner criteria to the present case, it is difficult to see how one can argue that the chairmanship of the SRC is an office. Section 696 bestows no "duties" whatsoever on the SRC chair, let alone duties which are "grave" or "important." Werner. Likewise, there is no statutory suggestion that the SRC chair performs any "function" in addition to his or her underlying role as an SRC member, nor does s/he serve "for a definite term" as chair. Id. In this light, there is no ...


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