Printed in the Legal Intelligencer 
Lizzy McLellan, The Legal Intelligencer – September 10, 2015

Parties arguing over Gov. Tom Wolf’s decision to fire Office of Open Records Executive Director Erik Arneson focused on the statutory description of the position before the state Supreme Court on Wednesday in Philadelphia.

Attorneys for Arneson, the Senate Majority Caucus and Wolf participated in the session before four of the justices. Justice Correale F. Stevens recused himself “out of an abundance of caution” because he has been working with the governor’s office and the OOR on various projects. The attorneys focused on the intent of the General Assembly when drafting the Right-to-Know Law, which created the OOR and its executive director position.

“There does not have to be magic language” in the statute, said Matthew H. Haverstick, attorney for the Senate Majority Caucus.

Haverstick said one of the “prime indicators” of legislative intent was the six-year term of the executive director, as defined in the RTKL.

John B. Delone of the Office of Attorney General, who argued for Wolf, said that term alone is not enough. “You have to have something beyond fixed statutory terms to insulate someone from removal by the governor,” Delone said.

Joel L. Frank, attorney for Arneson, argued that given the OOR’s role as a quasi-judicial agency, its director was intended to be independent from the governor. “Independence is absolutely vital and critical to allow the office to function as intended,” Frank said. “It’s only through the independence that appropriate scrutiny is given.” Frank also raised the argument that a governor could take action against an OOR executive director if the OOR has been issuing rulings the governor found displeasing.

Delone, however, in his argument, said there is no exception in Pennsylvania law to at-will employment for quasi-judicial officials.

The justices granted an application for expedited review in Arneson v. Wolf, after Wolf filed a petition to appeal the Commonwealth Court’s June decision in the case. Arneson and the Senate Majority Caucus sued Wolf over Arneson’s removal from the office in January, just after Wolf’s inauguration.

A four-judge majority of the Commonwealth Court on June 10 granted Arneson’s motion for summary relief, ordering that he be restored to his former position and given any unpaid salary and benefits. It also granted his request for a declaration that in terminating him, Wolf exceeded the governor’s removal powers.

“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,” Judge Patricia A. McCullough wrote for the majority.

Wolf immediately appealed the decision, which would have created an automatic supersedeas, keeping Arneson from resuming his role at the OOR. Arneson’s counsel filed an emergency application to vacate the automatic supersedeas June 11. But Wolf announced June 16 that his administration would reinstate Arneson as executive director while the Supreme Court considers the case.

During Delone’s argument, Justice Max Baer pointed to several items of interest in the RTKL’s requirements of the OOR executive director—the constraint on running for political office within a year of service in that position, the independence of the office and the six-year term. Looking at those factors, he said, should one wonder who would want to take that position in the last year of a governor’s term, knowing he or she might be fired by a new governor?

Justice J. Michael Eakin also addressed the term of the position. “What’s the purpose of putting the term on the office if it’s at the whim of the governor?” he asked. “Why put six years in there if it’s meaningless?” Delone replied that “all sorts of people” have fixed statutory terms. Baer also asked Delone whether any other appointed individual in Pennsylvania can be removed at will, who also adjudicates decisions of the body that can remove them. Delone said he was not aware of any.

While Frank’s arguments on Arneson’s behalf focused on the quasi-judicial nature of the OOR, Haverstick dealt with other elements of the office’s statutory definition. Haverstick said the six-year term of the executive director was put in place to insulate the office and the position from political influence. Baer, however, questioned the precise application of the six-year term.

Baer observed Terry L. Mutchler was allowed to serve beyond six years to nearly the end of Gov. Tom Corbett’s term in office. Mutchler’s appointment reached its sixth anniversary in April 2014, but Corbett named Arneson as her successor a few days before leaving the governor’s office in January 2015.”Therefore, the six-year term is not sacrosanct,” Baer said.

But Haverstick said the governor’s decision of how to transition the office between terms had no material impact on the analysis of the General Assembly’s intent. “It’s typical that there may be a lag between the expiry of a term and the filling of a position with a new appointee, but as the court recognized the critical question really is what the legislature intended with respect to the removal of the appointee,” Haverstick said in an email following arguments.

Read more: http://www.thelegalintelligencer.com/id=1202736726263/Arneson-Arguments-Focus-on-Lawmakers-Intent#ixzz3lMFr3D7c