Erik Arneson’s Status as Executive Director of Office of Open Records Remains in Limbo

A sharply divided Commonwealth Court has held that the Right-to-Know Law (RTKL) limits the Governor’s power to remove the Executive Director of the Office of Open Records (OOR) except for cause. The majority of the court concluded that the RTKL expresses a clear legislative intent that the Executive Director of the OOR, an independent body, is insulated from the Governor’s power to remove appointees at will.   The minority of the court disagreed, reasoning that the majority’s opinion interferes with the Governor’s constitutional authority to remove appointees at will. Governor Wolf has filed an appeal to the Pennsylvania Supreme Court, which would ordinarily stay the Commonwealth Court’s order under a final decision is rendered by the Supreme Court. However, Arneson intends to report for work because the OOR has not filed an appeal.

In one of his first acts as Governor, Governor Wolf removed Arneson as the Executive Director, citing his last minute appointment by Governor Corbett as the primary basis for removal. Arneson brought suit in the original jurisdiction of the Commonwealth Court for declaratory and injunctive relief and a writ of mandamus to restore his position.  The decision restores him to the position of Executive Director and awards unpaid salary and benefits.

The majority opinion by Judge Patricia A. McCullough (joined by Judges Cohn Jubelirer, Leavitt & Brobson) relied upon a number of factors to determine the RTKL’s legislative intent.   The Executive Director serves a mandatory six-year term that exceeds the appointing Governor’s term. The Executive Director is barred from seeking political office during his tenure or for one year thereafter. The RTKL establishes the OOR as an independent agency that is structurally and functionally independent from the Executive branch, and the OOR exercises quasi-judicial authority in which the Executive Director is directly involved.   As part of the exercise of quasi-judicial authority, the OOR hears appeals from executive agencies, including the Governor’s Office. Together, all of these factors led the majority to conclude that the General Assembly intended for the Executive Director of the OOR to be insulated from the Governor’s power to remove appointees at will.

The dissenting opinion authored by President Judge Dan Pellegrini (joined by Judges McGinley & Leadbetter) pointed out that the plain language of Article 6, Section 7 of the Pennsylvania Constitution provides that appointed civil officers “may be removed at the pleasure of the power by which they shall have been appointed.” He recognized that the Pennsylvania Supreme Court has held that the General Assembly may exempt an appointee to a legislatively created office from removal by the Governor except for cause, but noted the rule has only been applied in cases involving multi-member boards who served staggered terms and who were subject to confirmation by the Senate. He disagreed that the OOR is a quasi-judicial agency because the OOR does not afford due process to the participants engaged in administrative review and reviewing courts have the power to expand the record on appeal. He noted the Governor has power to remove appointees to quasi-judicial agencies including the Department of Human Services and the Insurance Commissioner.  He found the argument that Governor Wolf may interfere with the Executive Director simply because the OOR issues unfavorable decisions to be an insult to governors who are presumed to carry out their duties in good faith. He concluded that the majority’s opinion leaves the Executive Director unaccountable to the public.

An appeal has been filed by Governor Wolf. The filing of the appeal would typically stay the reinstatement of Arneson, but Arneson intends to report for work because the OOR has not filed an appeal.   The Executive Director position remains in limbo. With the Supreme Court still short-handed, a quick decision there is unlikely.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

Subscribe to our Newsletter