Arneson (Open Records) v. Gov. Wolf

[J-45-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

ERIK ARNESON, INDIVIDUALLY AND IN : No. 51 MAP 2015
HIS OFFICIAL CAPACITY AS :
EXECUTIVE DIRECTOR OF THE : Appeal from the order of the
OFFICE OF OPEN RECORDS, AND : Commonwealth Court at 35 MD 2015,
SENATE MAJORITY CAUCUS, : dated June 10, 2015
:
: 117 A.3d 374
v. :
: ARGUED: September 9, 2015
:
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, :
:
APPEAL OF: THOMAS W. WOLF, IN HIS :
CAPACITY AS GOVERNOR OF THE :
COMMONWEALTH OF PENNSYLVANIA :
AND DEPARTMENT OF COMMUNITY :
AND ECONOMIC DEVELOPMENT :

OPINION

MR. JUSTICE BAER DECIDED: October 27, 2015

The order of the Commonwealth Court is affirmed for the reasons set forth in the

Commonwealth Court opinion, which is adopted as the opinion of this Court on the

question of whether the legislature intended to insulate the Executive Director of the
Office of Open Records (OOR), a unique and sui generis independent body, from the

Governor’s constitutional power to remove his appointees at-will. See Arneson v. Wolf,

117 A.3d 374 (Pa.Cmwlth. 2015). We supplement the Commonwealth Court’s opinion

as follows.

On January 13, 2015, as his term was ending, out-going Governor Tom Corbett

appointed Erik Arneson (Appellee) as the Executive Director of the OOR for a term of

six years, with an optional reappointment for an additional six years. See 65 P.S. §

67.1310(b).1 On January 20, 2015, the first day of Governor Wolf’s term, he terminated

Appellee’s employment as Executive Director of OOR. Appellee filed a complaint for

mandamus and declaratory relief in the Commonwealth Court, arguing that Governor

Wolf’s termination of his employment violated the Pennsylvania Constitution and the

Right to Know Law (RTKL), 65 P.S. §§ 67.101-67.3104. The Commonwealth Court

accepted this argument and reinstated Appellee. The Governor appealed to this Court.

Article VI, Section 7 of the Pennsylvania Constitution concerns public officers

such as Appellee and provides for their removal as follows:

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,

1
This provision provides as follows:

(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. . . . The executive director may serve no
more than two terms.

[J-45-2015] - 2
 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. art. VI, § 7. As discussed below, our case law establishes that this section

of the Constitution is read together with Article VI, Section 1, which provides for the

appointment of officers such as Appellee as follows: “All officers, whose selection is not

provided for in this Constitution, shall be elected or appointed as may be directed by

law.” PA. CONST. art. VI, § 1. We have long recognized the correlation between an

appointer’s removal power in Article VI, Section 7, and the legislature’s power to create

appointed offices in Article VI, Section 1. Commonwealth ex rel Sortino v. Singley, 392

A.2d 1337, 1339 (Pa. 1978).

Indeed, we have consistently interpreted these two constitutional provisions

together to hold that when the legislature creates a public office in accord with Article VI,

Section 1, it may impose terms and limitations regarding tenure or removal as it sees fit,

thereby limiting the Governor’s power of removal under Article VI, Section 7. Singley,

392 A.2d at 1339; Watson v. Pennsylvania Tpk. Comm’n, 125 A.2d 354, 356 (Pa. 1958)

(explaining that Article VI, Section 1 expressly grants the legislature authority to create a

public office and to impose terms and limitations on the tenure or removal of one

holding that office); Burger v. Sch. Bd. of McGuffey Sch. Dist., 923 A.2d 1155, 1164

(Pa. 2007) (recognizing that “when the General Assembly creates a public office it may

impose terms and limitations on the removal of the public officer so created.”). Where

the legislature creates a public office without imposing terms or conditions on the

duration of an incumbent’s tenure or the mode of removal, the method of removal

[J-45-2015] - 3
provided in Article VI, Section 7 applies. Watson, 125 A.2d at 356-57 (applying the prior

version of Article VI, Section 7).

Whether the legislature has exercised its authority under Article VI, Section 1 to

limit the Governor’s removal power under Article VI, Section 7 depends upon the statute

creating the public office. Singley, 392 A.2d at 1339 (“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.’”). We have never required express language in a

statute, i.e., that an appointee may only be removed for cause, to find a legislative

limitation on the Governor’s removal power. Rather, we look to the totality of the

statutory language in accord with the oft-stated rules of statutory construction to glean

the legislative intent.

To ascertain that the legislature required a six year tenure for each Executive

Director and intended to eliminate the Governor’s power to remove except for cause,

the Commonwealth Court properly examined the language and purpose of the RTKL to

discern legislative intent on this question. While we generally endorse and accept the

Commonwealth Court’s analysis of the multiple factors contained therein which led to

the conclusion that the General Assembly intended to immunize the Executive Director

from the Governor’s ability to remove him without cause at will, we write to amplify the

Commonwealth Court’s opinion in one important respect.

It is undisputed that the OOR, with its Executive Director at the helm, is a unique

administrative agency tasked with applying the standards established in the RTKL and

making decisions about whether government agencies and officials, including the

[J-45-2015] - 4
executive branch and the office of the Governor, have acted timely, carried their burden

of establishing why a record is not subject to public access, as well as myriad other

issues. We view the Commonwealth Court’s analysis in this case to rest on the OOR’s

status as a unique, independent agency charged with the delicate task of applying the

RTKL, and the need to insulate the OOR and its Executive Director from the potential

for coercive influence from a Governor to accomplish the purpose of the RTKL.2 Just as

the OOR is inherently sui generis, the Commonwealth Court’s analysis is narrow and

unique to the OOR and its Executive Director.

Accordingly, the order of the Commonwealth Court is affirmed and its opinion, as

supplemented herein, is adopted as that of this Court.

Mr. Justice Stevens did not participate in the consideration or decision of this
case.

Mr. Chief Justice Saylor and Mr. Justice Eakin join the opinion.

Madame Justice Todd files a dissenting opinion.

2
We do not suggest this Governor would attempt such coercion. We write only to
interpret legislative intent, which will remain in effect absent a legislative response or a
future court’s reinterpretation of today’s holding.

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