The Executive Director of the Office of Open Records (OOR) is independent from the executive branch and insulated from the Governor’s constitutional power to remove appointees at-will, a split en banc panel of the Commonwealth Court held in Arneson v. Wolf, __ A.3d __ (No. 35 M.D. 2015, filed June 10, 2015). In doing so, the Court held that Governor Wolf exceeded his removal power under Article VI, Section 7 of the Pennsylvania Constitution when he dismissed the Executive Director without cause.
On January 13, 2015, then-Governor Corbett appointed Erik Arneson to be Executive Director of OOR, designating his term as January 13, 2015, through January 13, 2021, in accordance with Section 1310(b) of the Right-to-Know Law (RTKL), 65 P.S. §67.1310(b). Immediately upon his inauguration on January 20, 2015, Governor Wolf terminated Arneson’s employment, citing “serious concerns” about the timing and lack of transparency surrounding Arneson’s appointment. Arneson, individually and in his official capacity as Executive Director of OOR, and the Senate Majority Caucus, filed a complaint for mandamus and declaratory relief against Governor Wolf, the OOR, and the Department of Community and Economic Development (DCED), in which OOR is housed as a sub-agency. Following a hearing in Commonwealth Court on February 4, 2015, President Judge Pellegrini ordered the parties to file cross-motions for summary relief and argue their positions before the Court en banc. As noted, a majority of the Court granted Arneson summary relief on June 10, 2015, and ordered him restored to his position with back pay.
The majority, led by authoring Judge McCullough, held that the legislature’s intent in enacting the RTKL was to limit the Governor’s power to remove the Executive Director except for cause. In support, the Court cited and discussed several significant factors: the Executive Director serves a fixed term that exceeds the appointing Governor’s term; the RTKL language indicates that the term is mandatory as opposed to directive; the OOR’s primary statutory purpose is to perform quasi-judicial, adjudicatory functions, and the Executive Director is directly involved in those functions; the OOR is structurally and functionally independent from the executive department; and the OOR does not perform any quintessential executive duties. Most significantly, the majority observed, because the OOR adjudicates disputes concerning the potential release of records in the possession of the Governor, the Executive Director must not be subject to the control of the Governor. Based upon these factors, the Court discerned clear legislative intent that the Executive Director of OOR, an independent body, is insulated from the Governor’s power to remove appointees at-will.
In a dissenting opinion, President Judge Pellegrini, joined by Judges McGinley and Leadbetter, criticized the majority’s holding as unconstitutionally interfering with the Governor’s “supreme executive power” in Article IV, Section 2 of the Pennsylvania Constitution to ensure that the “laws be faithfully executed.” President Judge Pellegrini opined that because the Executive Director is not confirmed by the Senate, the position is not an officer within the meaning of Article VI, Section 1 and, therefore, the Governor’s power to remove an appointee under Article VI, Section 7 is unimpeded. Departing from the majority’s interpretation of prior Pennsylvania Supreme and Commonwealth Court opinions, the dissent concluded that only multi-member boards and commissions with fixed and staggered terms are exempt from the Governor’s removal power under Article VI, Section 7. Further, the dissent challenged the factors identified by the majority as legally insufficient to show that the Executive Director occupies a position that has been so conditioned by the legislature as to exempt it from the Governor’s removal power.