Court considers who should lead state’s open records office


MARK SCOLFORO
Associated Press

HARRISBURG, Pa. (AP) – Lawyers for the man fired after just days as head of Pennsylvania’s open records office told a panel of state judges¬†on Wednesday¬†that lawmakers made it clear in the Right-to-Know Law that they wanted the job to be independent of the governor who is now trying to replace him.

Commonwealth Court heard 90 minutes of argument in the lawsuit brought by Erik Arneson, a longtime Republican Senate aide who was fired by Democratic Gov. Tom Wolf in January after spending just days as executive director of the Office of Open Records.

The attorney general’s office, which represents Wolf, told the seven-judge panel that decades of state court precedent backed its position that the firing was within Wolf’s authority.

The judges raised questions about how the case might affect other positions in state government, and pressed lawyers for Arneson and the Senate Republican caucus about how they can divine the unwritten intent of the 2009 law that established the job and the executive director’s six-year term.

Joel Frank, Arneson’s lawyer, told the judges there was a “multitude of indicators” about the Legislature’s intentions, including the six-year term that would outlast any single gubernatorial term, the need to maintain a separation of powers within government and the open records office’s role in making quasi-judicial decisions.

Judge Dan Pellegrini said concerns about independence can go too far and prevent people from being able to make changes through the electoral process. He asked about whether a 12- or 15-year term would be proper or if it would remove too much authority from the governor.

“There’s a cynical view you have to protect the public from the political process,” Pellegrini said. “Well, the public only has influence through the political process.”

Matt Haverstick, representing the Senate Republicans, argued that the very establishment of the office with an executive director and other revisions six years ago are evidence the law was a conscious effort to take away power from the executive branch. Previously, disputes about getting records were resolved within agencies, and eventually by courts.

Judge Kevin Brobson called the issue of legislative intention subjective, asking whether the judges should base it on a standard of clear and convincing evidence.

“I think that the difficult thing here is it seems to be almost a judgment call,” Brobson said. “Which I guess is why we are judges.”

Kenneth Joel with the attorney general’s office said Wolf’s power to fire appointees was clearly spelled out in the state Constitution, which says civil officers – except judges – can be “removed at the pleasure of the power by which they shall have been appointed.”

“What we’re dealing with is an attempt to override the constitution,” Joel said.

Wolf has said Arneson’s appointment, made in the waning days of then-Gov. Tom Corbett’s tenure, was too hasty and lacked transparency. Wolf wants to launch a national search for a new executive director but has put that process on hold while Arneson’s firing is being litigated.

 

Copyright 2015 The Associated Press.