But his case is on the fast track to be heard by an en banc Commonwealth Court panel on March 11.
“We’re getting what we want – we want a fast decision on this,” said Matt Haverstick, a lawyer working for the Senate Republicans. He noted it’s unusual for the court to grant an en banc hearing so quickly.
Commonwealth Court President Judge Dan Pellegrini heard over an hour of argument Feb. 5 on a preliminary injunction from Senate GOP lawyers that aimed to reverse Wolf’s termination of Arneson last month. Instead of granting or denying the injunction, Pellegrini met privately with lawyers representing Arneson, the Senate GOP, and the Wolf administration, and later announced an agreement.
Per the agreement, the court agreed to an expedited, full court hearing next month on the merits of the case. Under the agreement, Senate Republicans agreed to withdraw their preliminary injunction request, which claimed there was daily, irreparable harm because Arneson was not on the job at the OOR. Wolf’s lawyers agreed to drop a motion to strike challenging the Senate Republican Caucus’ standing in the matter.
Also under the agreement, Arneson, who post-termination had said he still is OOR’s executive director, can no longer participate in any operations of the OOR. But he could seek employment elsewhere without Wolf’s lawyers saying he abandoned his position, lawyers said.
The Wolf administration says Arneson is not the executive director. Arneson, who was stripped of his Capitol credentials, access to OOR emails and has not received a paycheck, maintains he is the executive director of the office. When he said so testifying in court, Wolf’s lawyers objected and Pellegrini suggested Arneson be referred to as the “purported” executive director to avoid further objections.
Despite not having an official state-issued ID, parking or IT access, and no longer being paid, Arneson showed up to work Jan. 23 and again on Jan. 26. He said human resources representatives barred him from entering the executive director’s office at the OOR on Jan. 26. Arneson, who was a long-time top Senate GOP aide, worked on Jan. 26 from various Senate GOP offices around the Capitol, he said.
Arneson told reporters he may seek employment in the meantime with his old boss, Sen. Dominic Pileggi, R-Delaware, but he hasn’t made a decision.
Haverstick characterized the agreement between the parties as “a repudiation” of the “really spurious” claims by Wolf’s lawyers in their brief that said Arneson’s situation was a “garden variety” wrongful termination issue and that Arneson was “farcically” doing the work of the OOR.
“No it’s not ‘farcical,’ it’s constitutional, and the court recognized that and that’s why the court wants to have the full Commonwealth Court decide this case on the merits in a month,” Haverstick said to reporters after the hearing. Lawyers from the OAG did not speak with reporters.
During the hearing, Pellegrini alluded to the constitutional weightiness of the issue, saying the disagreement isn’t simply Republicans versus Democrats.
“This issue in this case is how the democracy operates,” he said. “…The sides could flip the next time.”
The governor and his administration have maintained they have every right to fire Arneson and appoint a new executive director – which they have said they intend to do after a national search for a new director is conducted.
Gov. Wolf, in a statement, said Arneson’s appointment was “anything but open and transparent,” and criticized Arneson’s decision to replace the OOR’s top lawyer, Charles Rees Brown, with one of Gov. Tom Corbett’s top lawyers, Delene Lantz-Johnson, who Arneson hired once he took over the OOR.
“With one of his first acts, Mr. Arneson demoted a qualified chief counsel in favor of a Corbett staffer,” Wolf said. “By removing Mr. Arneson, I am standing up against an effort to destroy the integrity of the Office of Open Records and turn it into a political operation. These attempts to change the office, which exists to protect the public’s right to know, are the exact reasons people distrust their state government. When given the choice between protecting the public and playing politics, I will stand with the people of Pennsylvania.
“As a public servant I strive to promote democracy and change the culture in Harrisburg. I will continue to fight for the integrity of the Office of Open Records. Today’s lawsuit does nothing to alter my conviction,” Gov. Wolf said.
Corbett appointed Arneson during his lame-duck period before leaving office. Gov. Wolf said the process “lacked transparency, was of questionable timing and appears to have been rushed through.” Wolf named Nathan Byerly, the office’s deputy director, as Acting Executive Director.
“Appointed officials like Erik in the position that he has under the separation of powers principle just can’t be removed by the executive branch for no reason,” said Matthew Haverstick, outside counsel for the Senate GOP
Gov. Wolf believes Arneson is an “at-will” employee, meaning he could be fired for any reason or no reason at all. Arneson and the Senate Republicans argue the executive director could not be truly independent if he or she worked at the pleasure of the governor.
The lawsuit also relies on the OOR’s quasi-judicial powers, pointing to a 1961 case, Bowers v. Pennsylvania Labor Relations Board. There, the Supreme Court found “a ‘compelling reason’ to deny the Governor the power to remove at will the appointed member of the PLRB because the PLRB was an administrative board that was ‘vested with judicial powers and duties,’” the lawsuit states.
“The OOR unquestionably performs quasi-judicial functions, and is a ‘quasi-judicial tribunal,’” the lawsuit states, adding the executive director “has a direct role in these judicial functions,” and the lawsuit says the executive director of OOR is “substantively indistinguishable” from the PLRB member in Bowers.
“The quasi-judicial power of the Executive Director, as with the PLRB member, must be preserved to prevent the perception (or the reality) that the Executive Branch, through the Governor, is gaining an inappropriate advantage in our tripartite government,” the lawsuit states. “It must not be lost that the OOR has direct oversight over the Office of the Governor in that the OOR – and the OOR alone – is tasked with hearing direct appeals from the Governor’s RTKL decisions.”
“The opportunity for inappropriate control of the OOR by making its leader (and the appointer of its judges) subject to the whims of the Governor is distinctly real, which is precisely what Bowers forecloses,” the lawsuit states.
Arneson was deeply involved in the re-write of the Right-to-Know law signed in 2008.