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Lamb McErlane Prevails before PA Supreme Court in Case against Governor Wolf

Joel L. Frank, managing partner at Lamb McErlane PC and partner Scot Withers represented Erik Arneson in Arneson v. Wolf. On October 27, 2015 in a 3-1 vote the Pennsylvania Supreme Court ruled that Governor Tom Wolf had no authority to remove Erik Arneson, PA Office of Open Records executive director without cause, adopting the decision of the Commonwealth Court.

On January 13, 2015 out-going Governor Tom Corbett appointed Erik Arneson as the executive director of the Pa. Office of Open Records. Arneson was fired by in-coming Governor Wolf on January 20, 2015.  Arneson was later reinstated to the position in June by the Commonwealth Court. On October 27, 2015 in a 3-1 vote the Pennsylvania Supreme Court ruled that Governor Tom Wolf had no authority to remove Office of Open Records executive director Erik Arneson without cause, adopting the decision of the Commonwealth Court.

The Legal Intelligencer Article – October 28, 2015

Gov. Tom Wolf had no authority to remove Office of Open Records executive director Erik Arneson without cause, the Pennsylvania Supreme Court has ruled, adopting the decision of the Commonwealth Court. With a 3-1 vote Tuesday, the justices affirmed the Commonwealth Court’s ruling in Arneson v. Wolf. Justice Correale F. Stevens recused himself from the case, and Justice Debra Todd dissented.

In a five-page majority opinion, Justice Max Baer referred to Article VI, Section 7 and Article VI, Section 1 of the state constitution.

According to Section 1, he said, when it creates a public office, the General Assembly can create limitations upon the governor’s power to remove that officer.

“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,” Baer wrote. “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.”

In her dissent, Todd adopted Commonwealth Court President Judge Dan Pellegrini’s reasons for his dissent at the lower court level. In his dissent, Pellegrini said the majority’s opinion unconstitutionally interferes with the governor’s authority.
“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 govern dissent, Pellegrini said the majority’s opinion unconstitutionally interferes with the governor’s authority.

“It’s a win for transparency and good government in Pennsylvania and we’re pleased with the result,” said Matthew H. Haverstick, an attorney for the Senate Majority Caucus, which brought the case jointly with Arneson. “It certainly reaffirms that the General Assembly creates the laws, and that the governor has to follow them not how he chooses to, but as they are enacted.”

A spokesman for Wolf did not return a call seeking comment.

Arneson was ousted from his position by Wolf in January, just after Wolf was inaugurated, and only days after Arneson was appointed by outgoing Gov. Tom Corbett. In June, the Commonwealth Court granted Arneson’s motion for summary relief in a 4-3 decision, 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.

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 considered the case.

Writing for the Commonwealth Court majority, Judge Patricia A. McCullough referenced the Right-to-Know Law specifically. The law says the OOR executive director’s term is six years, she wrote, indicating that the General Assembly intended for the director to only be removed for cause.

“In this case, the legislature did not specifically state in the RTKL that the executive director could be removed only for cause,” McCullough wrote. “Conversely, the legislature did not state in the RTKL that the executive director serves at the pleasure of the governor.”  She added that without limits to removal powers, a governor might remove an OOR executive director without cause in order to install a replacement who would render decisions favorable to the executive branch.

But in his dissent, Pellegrini argued that limiting a governor’s removal powers leaves “an individual who is virtually untouchable for six years and who is thereby insulated from accountability to elected officials.” He also noted the manner in which Arneson was appointed to the post, just days before a new governor was scheduled to take office.

“Mr. Arneson did not come to be appointed as the executive director of the OOR by being carried down from heaven on an angel’s wings,” Pellegrini wrote. “He was a staff member of the Republican majority leader when he received the appointment by the outgoing Republican governor.”

The Supreme Court majority generally endorsed the Commonwealth Court’s analysis of the multiple factors in the RTKL that led to its conclusion, Baer said, but amplified the unique nature of the office as a particularly important factor.

“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,” Baer wrote. “Just as the OOR is inherently sui generis, the Commonwealth Court’s analysis is narrow and unique to the OOR and its executive director.”

Joel L. Frank of Lamb McErlane, an attorney for Arneson, said he was happy with the court’s decision, but added it is unlikely to have a wider impact on executive power in Pennsylvania because the Open Records Office was a unique creation of the General Assembly.

“This decision was very finite in nature,” Frank said. “We contended all along that the office was sui generis.”

Lizzy McLellan can be contacted at 215-557-2493 or lmclellan@alm.com. Follow her on Twitter @LizzyMcLellTLI.
Read more: http://www.thelegalintelligencer.com/id=1202740804750/Supreme-Court-Rules-Against-Wolf-in-Arneson-Case#ixzz3ps0nf7el

Also read more on:  http://www.philly.com/philly/news/politics/20151028_Supreme_Court__Wolf_…