IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jerry Notarianni and Kim Yencho, :
Appellants :
:
v. : No. 733 C.D. 2016
: Argued: March 6, 2017
Patrick O'Malley, Laureen :
Cummings, John Brazil, John :
Cerra, Andy Wallace, Don :
Frederickson, Ed Staback, :
and Lackawanna County Salary Board :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: April 12, 2017
Jerry Notarianni (Notarianni), a member of the three-member Board
of Commissioners of Lackawanna County (Board), and taxpayer Kim Yencho
(collectively, Appellants), appeal the order of the Lackawanna County Court of
Common Pleas (trial court)1 denying mandatory preliminary injunctive relief
seeking removal of certain county officials for improper appointments, and
designation of Notarianni as “Minority Commissioner” entitled to his own solicitor.
Appellants contend the appointments constitute official action under the Sunshine
Act, 65 Pa. C.S. §§701-716, requiring a public meeting, and are improper attempts
by a lame-duck board to bind a successor. Appellants assert preliminary injunctive
relief is necessary to prevent irreparable harm during the pendency of the litigation.
1
Because the Lackawanna County bench recused, Kenneth W. Seamans, S.J. of the
Susquehanna County Court of Common Pleas presided.
Discerning reasonable grounds for the trial court’s order, we affirm.
I. Background
A. Material Facts
Lackawanna County (County) retained the County Commissioner
form of government when it adopted its Home Rule Charter (Charter) in 1976.
Reproduced Record (R.R.) at 406a-432a. Pursuant to the Charter, the Board is
comprised of three county commissioners, elected in odd-numbered years and
every fourth year thereafter. Electors may vote for no more than two candidates.
In 2015, the Board was comprised of two Democrats, Corey O’Brien
and James Wansacz, and one Republican, Patrick O’Malley. In early 2015,
O’Malley changed his registration from Republican to Democrat. Then, O’Brien
resigned, and Democrat Ed Staback was appointed to complete his term. Through
the remainder of 2015, until the newly elected commissioners took office,
Commissioners Staback (D), O’Malley (D) and Wansacz (D) comprised the Board
(2015 Board or Lame-duck Board).
In the 2015 election for County Commissioners, O’Malley ran for re-
election, and Notarianni also ran as a Democrat. Laureen Cummings successfully
ran as a Republican candidate. As a result of the election, the current Board is
comprised of Commissioners O’Malley and Notarianni as Democrats, and
Cummings as a Republican (Current Board). Commissioner O’Malley was the
only Commissioner remaining from the 2015 Board after the election.
2
Before the Current Board assumed office on January 4, 2016, Don
Frederickson served as County Solicitor, and John Brazil served as an assistant
solicitor. After the 2015 election, Frederickson advised O’Malley he no longer
wanted to serve as County Solicitor. Then-Commissioner Staback of the lame-
duck Board, executed a hiring form, which Commissioner O’Malley also signed,
appointing Brazil as County Solicitor. Pursuant to their written approval, Brazil
was to start on December 29, 2015, before the Current Board took office. Brazil
then named Frederickson an assistant solicitor.
The Board did not appoint a County Solicitor at the reorganization
meeting held after the Current Board’s installation on January 4, 2016. Also, the
position of Chief Clerk was not filled at the reorganization meeting. Subsequent to
assuming office, Commissioners O’Malley and Cummings approved the
appointment of Andy Wallace to serve as Chief Clerk, by signing a hiring form.
As sole Republican commissioner, Cummings appointed John Cerra
as Minority Solicitor. The County consistently construed the term Minority
Commissioner in the Charter as meaning the member of the minority party.
Historically, the County made appointments to county positions by
obtaining written assent of two of the three Commissioners on a hiring form. See
Tr. Ct., Slip Op., 4/6/16, Finding of Fact (F.F.) No. 28. The County consistently
followed this long-standing practice for solicitorships and other hires. The Board
does not vote on hires or appointments at public meetings, believing such executive
functions are not subject to public meeting requirements. F.F. No. 15.
3
B. Procedural History
In January 2016, Appellants filed a two-count complaint against
Appellees, comprised of: two members of the Current Board, (Democrat O’Malley
and Republican Cummings); outgoing Commissioner Staback; certain county
officials (County Solicitor Brazil, Assistant Solicitor Frederickson, Minority
Solicitor Cerra, and Chief Clerk Wallace) (collectively, County Officials); and, the
Lackawanna County Salary Board (Salary Board). The pleadings allude to
backroom politics, deceptive behavior, secret deals, and appointments made in
violation of public meeting requirements.
In Count I for Injunctive Relief, Appellants alleged the County
Officials’ appointments violate the Sunshine Act, the County Charter, and the
prohibition against “lame-duck” commitments. Alleging that the remedy under the
Sunshine Act is injunctive relief, that there is no adequate remedy at law, and that
continued service by County Officials will cause irreparable harm, Appellants
requested the trial court remove County Officials from their positions.
In Count II for Declaratory Judgment and Mandatory Injunction,
Appellants sought a declaration that County Officials’ appointments are improper
and, thus, void. Appellants also asked the trial court to declare Notarianni the
Minority Commissioner with the right to appoint a Minority Solicitor, and to direct
the Salary Board to fund the Minority Solicitor that Notarianni appoints.
In January 2016, Appellants also filed the petition for injunctive relief,
mandatory injunction and declaratory judgment at issue here (Petition). Therein,
4
Appellants alleged there is no adequate remedy at law and that County Officials’
continued service causes irreparable harm. As to Notarianni they assert:
[S]ince Mr. O’Malley [D] and Ms. Cummings [R] have
aligned themselves to assume the Majority role, Mr.
Notarianni [D] must be deemed the Minority
Commissioner so that he [may] be granted the
opportunity to appoint his own solicitor under the …
Home Rule Charter and so that he may serve as a true
‘watchdog’ for the taxpayers of Lackawanna County.
Appellants’ Br. at 11; Reproduced Record (R.R.) at 67a.
After holding a hearing on the Petition, in April 2016, the trial court
denied Appellants’ requested relief. In its 30-plus page opinion, the trial court
made 80 findings of fact. It reasoned that Appellants did not show irreparable
harm in allowing County Officials to continue their service, and it determined their
removal “would cause much greater harm than good [because] [a]ll positions
render important services to the [Board] and to the citizens of Lackawanna
County.” Tr. Ct., Slip Op. at 33 (unnumbered). The trial court emphasized it was
“compelled to point out that each one of these [County Officials] were agreed upon
by hire by two of the then serving [Board] - a majority” in that two of the three
sitting commissioners agreed to the hires. Id.
As to Appellants’ claim that appointments made outside a public
meeting are void, the trial court noted that County employment decisions do not
qualify as “official action” under the Sunshine Act, based on Maloney v.
Lackawanna County Commissioners (C.P. Lackawanna, No. 2004 Civil 339, filed
February 18, 2004), 2004 WL 5175141. This Court affirmed, adopting the trial
5
court’s “comprehensive opinion.” Maloney v. Lackawanna Cnty. Comm’rs (Pa.
Cmwlth., No. 633 C.D. 2004, filed October 6, 2004) (unreported), Slip Op. at 4.
As to the Minority Commissioner claim, the trial court explained the
historical construction of that term in the Charter referred to the minority party.
Accordingly, Notarianni, as one of two Democrats on the Board, did not qualify.
Appellants appealed the denial of preliminary injunctive relief.2
II. Discussion
Appellants seek mandatory relief to: (1) remove County Officials
because they were appointed outside a public meeting in violation of the Sunshine
Act and the Charter, and as to the Chief Solicitor and his assistants, by a lame-duck
Board; and, (2) declare Notarianni as the “Minority Commissioner” based on a
voting bloc of the other two commissioners in appointing officials that Appellants
seek to remove. Appellants claim the County Officials’ appointments are void,
and constitute irreparable harm as violations of law. Appellants contend a
preliminary injunction is necessary to protect the public’s trust in government.
With regard to their Minority Commissioner claim, they assert Notarianni’s
designation is necessary to serve the needs of his constituents.
2
Appellees also filed preliminary objections, which the trial court sustained in part and
overruled in part in July 2016. The trial court dismissed the claims seeking removal of County
Officials from office, holding a quo warranto proceeding offers the exclusive remedy. The trial
court overruled the preliminary objections to the Minority Commissioner claims. Thus,
Appellees filed an answer.
6
A. Legal Standards
In order to obtain preliminary injunctive relief, Appellants must
establish six prerequisites as to both the improper appointment/removal claim and
the Minority Commissioner claim. The six elements are: (1) a clear right to relief;
(2) immediate and irreparable harm in the absence of an injunction; (3) restoration
of the status quo; (4) no adequate remedy at law exists and the injunction is
appropriate to abate the alleged harm; (5) greater injury will result by not granting
than by granting the injunction; and, (6) the preliminary injunction will not
adversely affect the public interest. Summit Towne Ctr., Inc. v. Shoe Show of
Rocky Mount, Inc., 828 A.2d 995 (Pa. 2003). The absence of any one of the six
prerequisites is grounds to deny injunctive relief. Lee Publ’ns, Inc. v. Dickinson
Sch. of Law, 848 A.2d 178 (Pa. Cmwlth.) (en banc), appeal denied, 857 A.2d 675
(Pa. 2004) (Sunshine Act context).
When reviewing a trial court’s order as to a preliminary injunction,
“appellate courts must engage in a review of the record and provide some
discussion of the reasons for reversing a trial court’s order granting or denying a
preliminary injunction ….” Reed v. Harrisburg City Council, 927 A.2d 698, 705
(Pa. Cmwlth. 2007). Our “review is limited to determining whether the record
demonstrates any apparently reasonable grounds to support the trial court’s
decision.” Id. (emphasis added); see also Giant Eagle Mkts. Co. v. United Food &
Commercial Workers Union, 652 A.2d 1286 (Pa. 1995). Stated differently, “[o]ur
review of a trial court[’s] order is limited to examining the record for an abuse of
discretion.” Watts v. Manheim Twp. Sch. Dist., 84 A.3d 378, 391 (Pa. Cmwlth.
2014), aff’d, 121 A.3d 964 (Pa. 2015). We do not inquire into the merits. Id.
7
Further, in commanding the performance of an affirmative act, a
mandatory injunction “is the rarest form of injunctive relief” and an extreme
remedy. Wyland v. W. Shore Sch. Dist., 52 A.3d 572, 583 (Pa. Cmwlth. 2012).
Because mandatory injunctions are issued more sparingly than prohibitory
injunctions, Mazzi v. Commonwealth, 432 A.2d 985 (Pa. 1981), courts apply
greater scrutiny. Purcell v. Milton Hershey Sch. Alumni Ass’n, 884 A.2d 372 (Pa.
Cmwlth. 2005). Accordingly, “[t]he case for a mandatory injunction must be made
by a very strong showing, one stronger than required for a restraining-type
injunction.” Wyland, 52 A.3d at 582. However, “[w]hile the standard is greater
for a mandatory injunction, the primary elements of clear right, irreparable harm,
retaining the status quo and preventing greater injury are the same ….” Id. at 583.
Here, the relief Appellants request is both preliminary and mandatory:
(1) removal of County Officials as improper appointees; and, (2) designation of
Notarianni as Minority Commissioner so he may appoint the Minority Solicitor.
B. Likelihood of Success
As the moving party, Appellants must establish a clear right to relief.
However, in terms of an injunction, Appellants need not prove the elements of the
underlying claim to show a reasonable likelihood of success on the merits. SEIU
Healthcare Pa. v. Commonwealth, 104 A.3d 495 (Pa. 2014). Our Supreme Court
explained that where the other elements for a preliminary injunction are shown, a
moving party “need only demonstrate that substantial legal questions must be
resolved to determine the rights of the parties.” Id. at 505 (emphasis added) (citing
Fischer v. Dep’t of Pub. Welfare, 439 A.2d 1172 (Pa. 1982)).
8
1. Alleged Improper Appointments
Appellants challenge the legality of the following appointments:
Brazil as County Solicitor, and his naming of Frederickson as assistant solicitor;
Wallace as Chief Clerk; and, Cerra as Minority Solicitor. Appellants assert the
Sunshine Act requires public meetings for appointments of high-ranking county
officials. They argue the written assent for appointment amounts to a vote that
qualifies as official action under the statute and the Charter. Because County
Officials were not appointed during a public meeting, Appellants contend their
appointments are void, mandating their removal from office.
Appellees maintain that neither the Charter nor the Sunshine Act
expressly requires hiring decisions to be made at public meetings. In addition,
Appellees cite Maloney to support the trial court’s analysis of the Sunshine Act.
a. Public Meeting Requirement
There is no dispute that County Officials’ appointments were effected
by written assent of two commissioners on a hiring form, outside a public meeting.
Appellants assert this lack of openness is grounds to void their appointments, and
remove them from office.
The Sunshine Act upholds “the right of the public … to witness the
deliberation, policy formation and decision[-]making of agencies [as such is] vital
to the enhancement and proper functioning of the democratic process.” 65 Pa. C.S.
§702. It confers a right on citizens “to attend all meetings of agencies at which any
agency business is discussed or acted upon ….” Id.
9
To that end, with certain exceptions, the Sunshine Act requires an
agency to conduct “official action and deliberations by a quorum … at a meeting
open to the public.” 65 Pa. C.S. §704. “Official action” is defined as:
(1) Recommendations made by an agency pursuant
to statute, ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an
agency.
(4) The vote taken by any agency on any motion,
proposal, resolution, rule, regulation, ordinance, report or
order.
65 Pa. C.S. §703 (emphasis added).
There is no provision contained in the Sunshine Act that specifies the
hiring or appointment of a county employee constitutes “official action.” Id.
Like the Sunshine Act, the Charter requires all Board meetings to be
open to the public. Charter, §1.3-304. Section 1.3-302(j) of the Charter grants the
Board the power “to appoint or confirm, as the case may be, officers and
employees as provided by [the] Charter, by ordinance or state law.” R.R. at 411a.
One such appointment is that of County Solicitor, who in turn, appoints assistant
solicitors. Charter, §1.15-1503(a); R.R. at 427a. The method of appointment,
including the necessity for a meeting, is unspecified.
Appellants contend the public meeting provisions in both the Charter
and the Sunshine Act require appointments to occur during a public meeting. They
10
argue the trial court committed an error of law in determining the hiring of county
employees is not official action subject to the Sunshine Act. Specifically, they
assert “[Appellees] violated the Sunshine Act when they did not return to a public
meeting to vote” on the appointments. Appellants’ Br. at 9-10.
In determining that the hiring of county employees is not official
action under the Sunshine Act, the trial court relied on Maloney. In Maloney, the
trial court denied a petition for injunctive relief of county employees alleging the
Board illegally terminated their employment, and held the Sunshine Act did not
apply to their terminations. The trial court distinguished between policy-making or
legislative decisions, which require openness, and executive or administrative
decisions, such as those relating to an individual’s competence, which do not.
This Court affirmed the trial court’s decision in Maloney, holding that
the termination of County employees did not qualify as official action, and so did
not require a public meeting for validity. This Court’s adoption of the trial court’s
reasoning in Maloney, that local government would be paralyzed by the need to
undertake all hiring and firing of County employees at public meetings, is sound and
offers reasonable grounds to uphold the trial court’s order denying relief here.
However, Appellants contend Maloney does not apply because the
courts did not consider the vote component of Section 703(4) of the Sunshine Act,
65 Pa. C.S. §703(4). Official action only includes votes on “any motion, proposal,
resolution, rule, regulation, ordinance, report or order.” Id. Appellants cite
nothing to indicate an appointment fits within one of those submissions.
11
Significantly, Appellants challenge the lack of a vote as to the
appointments in a public meeting, not the discussion leading to the appointments.
The Sunshine Act permits discussion of personnel matters outside public view, in
executive session. 65 Pa. C.S. §708(a)(1);3 Dusman v. Bd. of Dirs. of
Chambersburg Area Sch. Dist., 123 A.3d 354 (Pa. Cmwlth. 2015). Such matters
expressly include appointments.4 Further, to the extent a public vote is required to
validate the appointments, that flaw may be cured by conducting the vote in a
public meeting. Smith v. Twp. of Richmond, 82 A.3d 407 (Pa. 2013).
Appellants emphasize that the appointments require two written
assents of the Commissioners under the Charter; these assents qualify as “votes.”
Yet, Appellants identify no legal support for their contention that a written assent
is equal to a vote, and the Charter does not so specify. Further, “votes” must occur
at public meetings only when they pertain to certain submissions like motions and
resolutions. Thus, while the claim is colorable, their right is less than clear.
3
An agency may hold an executive session, closed to the public, “to discuss any matter
involving the employment, appointment, termination of employment, terms and conditions of
employment, evaluation of performance, promotion, or disciplining of any specific prospective
public officer or employee or current public officer or employee employed or appointed by the
agency, or former public officer or employee…” 65 Pa. C.S. §708(a)(1).
4
We distinguished between an appointment and an election, connoting a vote, in Public
Opinion v. Chambersburg Area School District, 654 A.2d 284 (Pa. Cmwlth. 1995). Applying its
common usage, we defined “appointment” as:
[t]he selection or designation of a person, by the person or persons
having authority therefor, to fill an office or public function and
discharge the duties of the same. The term ‘appointment’ is to be
distinguished from ‘election.’ ‘Election’ to office usually refers to vote
of people, whereas ‘appointment’ relates to designation by some
individual or group.
Id. at 289 (citing BLACK’S LAW DICTIONARY 91 (5th ed. 1979)).
12
Moreover, the trial court recognized that it has been a long-standing
practice to carry out county appointments by the written assent of at least two
board members on forms usually generated by the personnel office. In that regard,
the trial court determined, even if there was a violation of the Sunshine Act, the
law did not require it to set aside the appointments at issue because the decision as
to invalidating action at an unauthorized meeting was within its discretion. See 65
Pa. C.S. §713 (providing as to business transacted at an unauthorized meeting that,
“[s]hould the court determine that the meeting did not meet the requirements of
this chapter, it may in its discretion find that any or all official action taken at the
meeting shall be invalid.”).
Appellants also suggest the appointment of “higher ranking officials,”
like County Officials, must take place in a public meeting, because that qualifies as
official action. However, they cite no case law in support. Cf. Taylor v. Borough
Council Emmaus Borough, 721 A.2d 388 (Pa. Cmwlth. 1998) (stating in dicta, that
after closed investigation, the act of firing employee would constitute official action).
Case law holding that hires of high-ranking officials need to occur in a
public meeting is limited to the hiring of superintendents of school districts.
Further, the analysis turned on the fact that the agencies involved were school
districts subject to the Public School Code of 1949,5 and the hires at issue had
contracts. See Preston v. Saucon Valley Sch. Dist., 666 A.2d 1120 (Pa. Cmwlth.
1995); Morning Call v. Bd. of Sch. Dirs., 642 A.2d 619 (Pa. Cmwlth. 1994).
5
Act of March 10, 1949. P.L. 30, as amended, 24 P.S. §§1-101–27-2702. Section 508 of
the Public School Code, 24 P.S. §5-508, presupposed that when entering a contract of any kind,
the school board would vote at a public meeting.
13
Relevant here, in Preston, this Court reasoned that the vote on a
superintendent’s contract and salary increase needed to occur in a public meeting.
However, in addition to Section 508 of the Public School Code, we held the hiring
of a superintendent constituted official action under the Sunshine Act (then 65 P.S.
§278).6 Out of context, Preston may support that, to be valid, a hiring decision of a
high-ranking official must occur in a public meeting. In context, it matters that a
superintendent is hired by contract that requires a vote at a public meeting for
approval. Entering a contract is a decision on agency business, i.e., official action.
The essence of official action is its connection to agency business.
The Sunshine Act defines “agency business” as: “[1] the framing, preparation,
making or enactment of laws, policy or regulations[;] [2] the creation of liability by
contract or otherwise[;] or [3] the adjudication of rights, duties and responsibilities,
but not including administrative action.” 65 Pa. C.S. §703. “Administrative action”
is defined as: “[t]he execution of policies relating to persons or things as previously
authorized or required by official action of the agency adopted at an open meeting
of the agency[,] … not [including] the deliberation of agency business.” Id.
In sum, cases holding that hires by contract constitute official action
do not necessarily apply to hires by appointment. Nor do they hold that all hires
are official actions requiring a vote. Agency business expressly includes contracts
as a basis for official action, whereas appointments of County Officials, all of
whom are at-will, do not fall neatly within any of the three categories.
6
Section 8 of the Sunshine Act of 1986, Act of July 3, 1986, P.L. 388, repealed by, Act
of October 15, 1998, P.L. 729.
14
Arguably, appellate authority is split as to whether hiring and firing
decisions must be approved by a vote in a public meeting. Compare Maloney with
Morning Call and Preston. Thus, we are not persuaded that Appellants established
a likelihood of success on the merits as to a violation of the Sunshine Act.
b. Lame-Duck Appointees
Appellants also argue a predecessor board may not bind its successor,
under the precedent established in Lobolito, Inc. v. North Pocono School District,
755 A.2d 1287 (Pa. 2000). In Lobolito, our Supreme Court determined that an
agreement to build a new school, entered by a school board at the expiration of its
term, did not bind the successor board. The Court reasoned that a lame-duck board
“cannot enter into a contract which will extend beyond the term for which the
members of the body were elected.” Id. at 1289.
This Court extended this prohibition against binding successors to the
employment context in Borough of Pitcairn v. Westwood, 848 A.2d 158 (Pa.
Cmwlth. 2004). There, we reasoned an appointment of a police chief encompasses a
governmental function. Thus, the governing body’s attempt to bind a successor
body was unenforceable and contrary to public policy. Significantly, we held the
appointment was illegal from the outset, and so voided the employment contract.
The prohibition against a lame-duck body making an eleventh-hour
appointment is predicated on the binding nature of the decision on a successor
body. Appellants cite no case law expanding this principle to at-will employees.
15
Here, the only appointment challenged on lame-duck grounds is that
of County Solicitor, who then selects assistant solicitors. When appointed to start
on December 29, 2015, John Brazil was already serving with Don Frederickson as
an assistant solicitor. The lame-duck appointment substituted Brazil for
Frederickson as County Solicitor, and moved Frederickson to assistant solicitor.
At the reorganization meeting held on January 4, 2016, following the installation
of the new Commissioners, no appointment of County Solicitor was held.
Appellants’ argument that Lobolito offers grounds to invalidate the
Solicitor’s appointment as a lame-duck attempt to bind a successor board is
unpersuasive. Appointees, per the County Code, are subject to removal by the
appointing authority at-will. 16 P.S. §450(b).7 Unlike a contract, appointments to at-
will positions do not have binding effect. Regardless, under Lobolito, a successor
board is free to rescind a contract when it was entered by a lame-duck predecessor.
Though not cited by Appellants, this Court held lame-duck
appointments to non-vacant positions are invalid in Ross Township v. Menhorn,
588 A.2d 1347 (Pa. Cmwlth. 1991). There, six days before the organizational
meeting of the new board, the lame-duck board met and appointed individuals to
certain positions, which were to become effective the day before the organizational
meeting, because no vacancies existed until then. At the organizational meeting,
the new board rescinded the lame-duck appointments and replaced the appointees.
The new appointees commenced an action in quo warranto, seeking a declaration
as to the rightful office holders. The trial court dismissed the action as to two
7
Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §450(b).
16
lame-duck appointments based on “well settled past practices” since 1969. Id. at
1349. This Court reversed, reasoning: “Appointments to public positions …
where no vacancies existed are invalid, regardless of the past practices of the local
municipality because an incumbent governing body lacks the power to appoint to
positions where vacancies will not occur until after [its] term in office expires.” Id.
Thus, the start date and whether there was a vacant position at the time of the
appointment is relevant.
Here, County Solicitor Brazil and assistant solicitor Frederickson
started while the Lame-duck Board remained in office, and before the Current
Board assumed office. Frederickson asked to be replaced as County Solicitor.
Further, after assuming office, the Current Board had an opportunity to make their
own appointments at the reorganization meeting. Moreover, Appellants
acknowledge the County Officials here serve at-will appointments, and so are not
binding on the Current Board. The applicability of Lobolito is contingent on a
lame-duck body creating long-term obligations, circumstances which are not
present here.
2. Minority Commissioner
Asserting that Commissioners O’Malley (D) and Cummings (R) have
aligned themselves so as to assume the majority role, Notarianni (D) asks to be
deemed the Minority Commissioner based on their voting alliance. As a result, he
claims that as Minority Commissioner, he is entitled to appoint his own solicitor,
the Minority Solicitor, pursuant to the applicable provisions of the Charter. He
also argues the Salary Board is required to fund the Minority Solicitor he appoints.
17
The trial court rejected Democrat Notarianni’s assertion that he should
be appointed Minority Commissioner. It reasoned that Commissioner Cummings
(R), as Commissioner of the minority party, was the Minority Commissioner.
Therefore, she had the right under the Charter to designate an assistant solicitor to
give her legal advice. She appointed a Minority Solicitor pursuant to the Board’s
long-standing hiring practice. In addition, the trial court observed that the only
indicia of any political alignment between Commissioners O’Malley and
Cummings were the two appointment actions they undertook, which the court
concluded did not render Notarianni a de facto Minority Commissioner.
Despite the County’s long-standing, consistent practice of designating
the commissioner of the minority party as the Minority Commissioner, Appellants
proffer an alternate interpretation. Citing the Pennsylvania Manual for County
Commissioners8 in support, Appellants maintain the majority/minority role “is not
determined exclusively by party.” Manual (4th ed., Aug. 2015) at 8. Rather, that
role may correspond to personality and personal philosophy that dictate voting blocs.
Our state Constitution does not address Minority Commissioner status.
Notably, Article 9, section 4, “County government,” does not mention a minority
solicitor or commissioner. It merely provides: “Three county commissioners shall
be elected in each county. In the election of these officers each qualified elector
shall vote for no more than two persons, and the three persons receiving the highest
number of votes shall be elected.” PA. CONST., art. IX, §4.
8
Although the Manual is not in the record, it is publicly available. However, it focuses
on the role as aligned with the minority party, stating the nominating and election mechanism
assures each party has minority party representation.
18
The sole authority for a minority solicitor in the present case is Section
1.15-1503 of the Charter, entitled “Legal Services.” It states in pertinent part:
The Board of County Commissioners shall appoint a
County Solicitor who shall be the chief legal officer and
attorney for the County government except for those
elected offices already authorized a Solicitor. The
County Solicitor shall appoint assistant solicitors in such
numbers and at such salaries as shall be fixed by the
Salary Board. One of these assistant solicitors shall be
designated solely to give legal advice to the Minority
County Commissioners, and shall be the appointment of
the Minority Commissioner.
R.R. at 427a (emphasis added). This provision does not show Appellants have a
clear right to relief.
In part, Appellants claim Notarianni should be named Minority
Commissioner because denying him counsel through the Minority Solicitor denies
“the voters who overwhelmingly selected [him] [their] ability to govern with the
benefit of competent[,] trustworthy legal counsel.” Appellants’ Br. at 20. Thus,
his claim is predicated on serving those who voted for him, and whose interests are
being marginalized because he is the Minority Commissioner and majority rules.
Although there are no decisions on point as to the meaning of
“Minority Commissioner,” our Supreme Court addressed the import of a county
commissioner’s party designation in Commonwealth ex rel. Teller v. Jennings, 186
A.2d 916 (Pa. 1963). There, our Supreme Court affirmed a trial court’s dismissal
of a district attorney’s quo warranto action seeking a declaration that a county
commissioner forfeited his right to office when he changed his party affiliation after
19
being elected. The Jennings Court observed the purpose of the state constitution
provision9 dealing with the election of county commissioners was to encourage the
initial representation of both major political parties. Once assuming office, a
commissioner became the representative of all his constituents, “and not merely
those who voted for him or happen to belong to his political party.” Id. at 918.
We agree with Appellants that there is no requirement that the
“Minority Commissioner” correspond to the commissioner affiliated with the
minority party. Because commissioners may switch parties, or run as independents,
the Board may not be comprised of a clear majority and minority by party. Indeed,
the 2015 Board was comprised entirely of Democrats.
Because there is no definition of the term “Minority Commissioner,”
or case law construing same, the term is open to determination. Here, Appellants
offer a reasonable construction of “Minority Commissioner” as one who is
consistently in the minority, and out-voted by two-to-one, based on a voting bloc.
That said, Appellants did not establish Notarianni’s Minority Commissioner status
based on a voting bloc on this record. At best, the alleged voting alliance is
comprised of two decisions to make two appointments, which may or may not
have been in concert. To the contrary, Cummings exercised independent judgment
in appointing Wallace. F.F. No. 74. To construe the term by reference to a voting
bloc with no showing of an alliance, would subject the status of Minority
Commissioner to constant change, potentially on a vote-by-vote basis.
9
Then article 14, Section 7 of the Pennsylvania Constitution is substantively the same as
the current provision on County government, in article 9, Section 4.
20
In short, the trial court did not abuse its discretion in determining two
appointments were insufficient to show a voting bloc that would render Notarianni
forever in the minority, such that he and his constituents would be disadvantaged
without specially designated counsel. Thus, Notarianni did not establish he
qualified as Minority Commissioner under the Charter so as to have a clear legal
right to appoint the Minority Solicitor.
C. Remaining Elements for Injunctive Relief
Appellants were required to establish five prerequisites for preliminary
injunctive relief, in addition to a clear right, or substantial legal question as to
respective rights. SEIU Healthcare.
As to irreparable harm, this Court holds “[f]ailure to comply with an
open government statute is sufficiently injurious to constitute irreparable harm.”
Grine v. Cnty. of Centre, 138 A.3d 88, 101 (Pa. Cmwlth. 2016) (en banc) (citing
Patriot-News Co. v. Empowerment Team of Harrisburg Sch. Dist. Members, 763
A.2d 539 (Pa. Cmwlth. 2000) (injunction granted to prevent Sunshine Act violation));
see also SEIU Healthcare, 104 A.3d at 508 (“when conduct sought to be restrained
violates a statutory mandate, irreparable injury will have been established.”).
However, the alleged statutory mandate under the Sunshine Act that
hiring or appointment actions constitute official action is less than clear. At best,
there is a substantial legal question as to the requirement of a public meeting for
hiring decisions or filling non-elected vacancies, such that irreparable harm is not
21
established from a statutory violation. Appellants articulated no irreparable harm
other than violating a non-express public meeting requirement.
Nonetheless, presuming Appellees violated the Sunshine Act by not
appointing the County Officials in a public meeting, which statutory violation
constitutes irreparable harm, Appellants must meet four other prerequisites for
preliminary injunctive relief. This includes a requirement that denial of injunctive
relief would cause greater harm than granting it. The trial court concluded the
harms favored denying injunctive relief because removing the County Officials
and creating vacancies would cause greater harm than letting the appointments
stand. Tr. Ct., Slip Op. at 33. In support, the trial court noted Brazil served as an
assistant solicitor under Frederickson. Notarianni admitted Frederickson’s
competence as a solicitor, and he offered no basis to believe that Brazil and
Frederickson do not serve his interests.
Moreover, the harm Appellants allege to the public trust is speculative.
Speculative harm is legally insufficient to support a preliminary injunction. Summit
Towne Centre; Reed. The harm as articulated reflects Notarianni’s self-interest as
opposed to that of his constituents, who are not limited to his supporters. Jennings.
In addition, Appellants seek to alter the status quo, not maintain it.
Notarianni did not have a Minority Solicitor, and the other solicitorships he
challenges were in place before he took office. To remove the appointees would
void the actions of a majority of the Current Board, in favor of one commissioner.
22
III. Conclusion
Because Appellants did not establish all six prerequisites to injunctive
relief as to either their improper appointment or Minority Commissioner claims,
and there are reasonable grounds to support the trial court’s denial of the
preliminary injunctive relief10 sought, we affirm the trial court’s order.
ROBERT SIMPSON, Judge
Judge Hearthway did not participate in the decision in this case.
10
Appellees also argued this Court should dismiss the appeal, except as to the surviving
Minority Commissioner claim, because the trial court dismissed the counts relating to improper
appointments. We decline to dismiss the action because this case involves matters of open
government that are important to the public, capable of repetition, and yet evading review.
Public Defender’s Office of Venango Cnty. v. Venango Cnty. Ct. of Common Pleas, 893 A.2d
1275 (Pa. 2006).
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jerry Notarianni and Kim Yencho, :
Appellants :
:
v. : No. 733 C.D. 2016
:
Patrick O'Malley, Laureen :
Cummings, John Brazil, John :
Cerra, Andy Wallace, Don :
Frederickson, Ed Staback, :
and Lackawanna County Salary Board :
ORDER
AND NOW, this 12th day of April, 2017, the order of the Lackawanna
County Court of Common Pleas is AFFIRMED.
ROBERT SIMPSON, Judge