Pievsky v. Ridge ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
10-16-1996
Pievsky v. Ridge
Precedential or Non-Precedential:
Docket 96-7206
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-7206
MAX PIEVSKY,
Appellant
v.
THOMAS J. RIDGE, in his capacity as the
Governor of the Commonwealth of Pennsylvania
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 96-cv-00116)
Argued July 17, 1996
BEFORE: SLOVITER, Chief Judge, COWEN and ROTH
Circuit Judges
(Filed October 16, l996)
Richard A. Sprague (argued)
Geoffrey C. Jarvis
Peter Konolige
Sprague & Sprague
135 South 19th Street
Wellington Building, Suite 400
Philadelphia, PA 19103
COUNSEL FOR APPELLANT
Stephanie A. Middleton
Paul A. Tufano (argued)
Office of Attorney General of
Pennsylvania
Office of General Counsel
333 Market Street
17th Floor
Harrisburg, PA 17108
COUNSEL FOR APPELLEE
OPINION
COWEN, Circuit Judge.
Former Commissioner of the Delaware River Port Authority of
Pennsylvania and New Jersey ("DRPA"), Max Pievsky, filed a
complaint challenging the Governor of Pennsylvania's power to
remove him without cause under the terms of the DRPA Compact, an
interstate agreement between the Commonwealth of Pennsylvania and
the State of New Jersey. The district court dismissed the
complaint on summary judgment, concluding that the Governor of
Pennsylvania had the power to remove DRPA Commissioners prior to
the expiration of their terms. Because we agree that, under the
terms of the DRPA Compact, the Governor of Pennsylvania has the
power to remove the appointed DRPA Commissioners at will, we will
affirm the April 12, 1996 order of the district court.
I.
Jurisdiction of the district court was invoked pursuant to
28 U.S.C. §§ 1331 and 1441(b). The construction of an interstate
compact approved by Congress presents a federal question under 28
U.S.C. § 1331. See Petty v. Tennessee-Missouri Bridge Comm'n,
359 U.S. 275, 278, 79 S. Ct. 785, 788 (1959). We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of the district court's interpretation of the
interstate compact is plenary. Peters v. Delaware River Port
Auth., 16 F.3d 1346, 1349 (3d Cir.), cert. denied, 115 S. Ct. 62
(1994).
II.
The parties stipulated to the following facts. The DRPA
derives its authority from the DRPA Compact, an interstate
agreement between the Commonwealth of Pennsylvania and the State
of New Jersey. The Compact was originally enacted by the
Pennsylvania and New Jersey legislatures in 1931 and is codified
in reciprocal statutes at Pa. Stat. Ann. tit. 36, § 3503 (1995)
and N.J. Stat. Ann. §§ 32:3-1 to 3-18 (West 1995). As required
by the Compact Clause of the United States Constitution, U.S.
Const. art. I, § 10, cl. 3, Congress originally consented to the
terms of the Compact in 1932 and thereafter consented to
amendments in 1952 and 1992.
The DRPA was created, among other things, to construct and
operate bridges across the Delaware River, to construct and
maintain facilities for the transportation of passengers between
Pennsylvania and New Jersey, and to improve and develop the ports
of Philadelphia and Camden. DRPA Compact, Article I, 36 P.S. §
3503. The DRPA has sixteen commissioners, eight of whom are
appointed from Pennsylvania and eight of whom are appointed from
New Jersey. The Compact establishes the procedure for the
appointment of the eight commissioners from Pennsylvania as
follows:
[s]ix of the eight commissioners for the Commonwealth of
Pennsylvania shall be appointed by the Governor of
Pennsylvania for terms of five years. The Auditor General
and the State Treasurer of said Commonwealth shall, ex-
officio, be commissioners for said Commonwealth, each having
the privilege of appointing a representative to serve in his
place at any meeting of the commission which he does not
attend personally.
All commissioners shall continue to hold office after
the expiration of the terms for which they are appointed or
elected until their respective successors are appointed and
qualify, but no period during which any commissioner shall
hold over shall be deemed to be an extension of his term of
office for the purpose of computing the date on which his
successor's terms expires.
DRPA Compact, Article II, 36 P.S. § 3503. Article II of the
Compact states that the New Jersey appointees must be confirmed
by the Senate of New Jersey, but does not require legislative
confirmation of Pennsylvania's appointees.
The states have significant control over the DRPA. The
Compact provides that the Board may act only by way of a majority
of each state's commissioners voting in favor of the action. In
1992, the state legislatures amended the Compact to allow each
state to pass legislation authorizing its Governor to veto the
action of any of the state's commissioners within ten days of
receipt of the minutes of the meeting at which the vote was
taken.
On December 28, 1994, former Governor of Pennsylvania Robert
Casey appointed Max Pievsky as a commissioner of the DRPA. The
commission, signed by the Governor, states that Pievsky shall
hold office until December 28, 1999. On January 22, 1996,
Pievsky received a telephone call from Leslie Gromis, Director of
Governor Ridge's Office of Public Liaison. Gromis informed
Pievsky that the Governor was disappointed in Pievsky's vote for
a new chairperson for the DRPA Board on January 17, 1996. Gromis
further stated that if Pievsky did not resign the next day, the
Governor would make an appointment to the DRPA to replace him.
III.
On January 23, 1996, Pievsky filed suit in the Commonwealth
Court of Pennsylvania seeking to enjoin Governor Ridge from
removing him as a commissioner. The Governor removed the case to
the United States District Court for the Middle District of
Pennsylvania, asserting that Pievsky's claims arise under the
laws of the United States pursuant to 28 U.S.C. §§ 1331 and
1441(b).
The district court issued an opinion and entered an order
denying Pievsky's requests for declaratory judgment and permanent
injunctive relief. In its interpretation of the Compact, it held
that the Governor may remove Pievsky prior to the expiration of
his term in 1999. Pievsky filed a notice of appeal and a motion
in the district court for a stay pending appeal. The district
court granted a stay prohibiting the Governor from removing
Pievsky pending resolution of an appeal to this Court. We
vacated the district court's grant of a stay pending appeal.
Thereafter, Pievsky was removed by the Governor as a DRPA
Commissioner. Pievsky appealed to the Supreme Court for a stay
preventing his removal from office. The application was denied.
The matter is now before us on Pievsky's appeal of the district
court's order denying his application for a declaratory judgment
and injunctive relief reinstating him to the position of
commissioner of the DRPA.
IV.
The issue we must decide is strictly one of statutory
construction. Does the DRPA Compact allow the Governor of
Pennsylvania to remove a commissioner to the DRPA at will and
prior to the expiration of his term?
A.
Since the Compact is an interstate agreement which requires
the consent of Congress, such Congressional consent transforms
the Compact into an agreement pursuant to federal law. SeeCuyler v.
Adams, 449 U.S. 433, 438, 101 S. Ct. 703, 707 (1981);
see also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275,
278, 79 S. Ct. 785, 788 (1959); Delaware River Joint Toll Bridge
Comm'n v. Colburn, 310 U.S. 419, 427, 60 S. Ct. 1039, 1041
(1940). Our interpretation of the terms and conditions of the
Compact is, therefore, governed by federal law. See Cuyler, 449
U.S. at 438, 101 S. Ct. at 707; see also Petty, 359 U.S. at 278,
79 S. Ct. at 788.
Though state law is not binding, federal courts show
deference to prior state adjudications and rulings in construing
an interstate compact. See State ex. rel. Dyer v. Sims, 341 U.S.
22, 28, 71 S. Ct. 557, 560 (1951) ("To determine the nature and
scope of obligations as between States [when] they arise through
the legislative mean of compact . . . is the function and duty of
the Supreme Court of the Nation. Of course every deference will
be shown to what the highest court of a State deems to be the law
and policy of its State . . ."); see also Petty, 359 U.S. at
278, n.4, 79 S. Ct at 788, n. 4 ("While we show deference to
state law in construing a compact, state law as pronounced in
prior adjudications and rulings is not binding"); Seattle Master
Builders Ass'n v. Pacific N.W. Elec. Power & Conserv. Planning
Council, 786 F.2d 1359, 1365 (9th Cir. 1986), cert. denied, 479
U.S. 1059, 107 S. Ct. 939 (1987) ("While congressional consent
gives an interstate compact some attributes of federal law, the
Council members' appointment, salaries, and administrative
operations are pursuant to the laws of the four individual
states, within parameters set by the Act.").
B.
The Compact is merely an agreement between states that has
received the imprimatur of Congress. The interpretation of the
Compact must be grounded and based upon the very language of the
instrument. See Texas v. New Mexico, 482 U.S. 124, 128, 107 S.
Ct. 2279, 2283 (1987). The Compact between Pennsylvania and New
Jersey states that "[s]ix of the eight commissioners for the
Commonwealth of Pennsylvania shall be appointed by the Governor
of Pennsylvania for terms of five years." DRPA Compact, Article
II, 36 P.S. § 3503. It does not explicitly state whether the
commissioners may be removed by the governor prior to the
expiration of their term.
The long-standing rule in the context of federal
appointments is that "[i]n the absence of specific provision to
the contrary, the power of removal from office is incident to the
power of appointment." Keim v. United States, 177 U.S. 290, 293,
20 S. Ct. 574, 575 (1900); accord Myers v. United States, 272
U.S. 52, 161, 47 S. Ct. 21, 40 (1926); see also Kalaris v.
Donovan, 697 F.2d 376, 389 & n. 54 (D.C. Cir.) cert. denied, 462
U.S. 1119 (1983) (quoting Cafeteria & Restaurant Workers Union v.
McElroy, 367 U.S. 886, 896, 81 S. Ct. 1743, 1749 (1961)).
Pennsylvania has also adopted this principle of law. SeeAmerican Fed'n of
State, County, and Mun. Employees v. Shapp, 280
A.2d 375, 377 (1971); see also Commonwealth ex. rel. Haymaker v.
Black, 50 A. 1009 (1902). The Compact explicitly gives the
Governor of Pennsylvania the power to appoint six commissioners
to the DRPA. Accordingly, pursuant to federal law, there is a
presumption that the Governor also has the authority to remove
those six commissioners prior to the end of their terms.
Pievsky argues that since the DRPA Commissioner's term of
office is five years, as compared to the Governor's four year
term of office, the Pennsylvania legislature and Congress
intended to limit the Governor's power of removal. We disagree.
The fact that the Governor's term of office is shorter than that
of the commissioners does not indicate an intent on the part of
the legislature to limit the Governor's ability to remove his
appointees. If the Pennsylvania legislature intended such a
limitation, it would have stated so in the Compact. Instead, the
Compact simply reads that the Governor of Pennsylvania shall
appoint a DRPA Commissioner for a term of five years. Since the
power to remove is incident to the power to appoint, we hold that
under the terms of the Compact the Governor of Pennsylvania has
the authority to remove a DRPA Commissioner at will.
We believe that the difference in the length of terms of
office is irrelevant. Since the Compact provides that
commissioners may hold office after the expiration of the term
for which they are appointed, and "no period during which any
commissioner shall hold over shall be deemed to be an extension
of this term of office for the purpose of computing the date on
which his successor's term expires," DRPA Compact, Article II,
36 P.S. § 3503, a commissioner's term of office may in fact be
for four years or less. This would occur if a commissioner is
succeeding a prior commissioner who has continued to hold office
after the expiration of his term of office.
Pievsky also contends that interpreting the Compact to
permit the Governor to remove a commissioner at will vitiates the
plain language of the Compact which provides that six of the
Commonwealth's commissioners "shall be appointed by the Governor
of Pennsylvania for terms of five years." He asserts that five
years means five years, and not less than five years. We are not
persuaded. It is a long-standing rule in the federal courts that
a fixed term merely provides a time for the term to end. The
fixed term is merely a "cap" with the appointee removable at
will. See Parsons v. United States, 167 U.S. 324, 17 S. Ct. 880
(1897). We read the term "five years" as a means of limiting the
length of the term of office, not as a prohibition on the
Governor's removal authority.
C.
Pievsky next maintains that under federal law the terms of
the DRPA Compact evidence an intent by the legislatures to limit
the Governor's removal power because the Compact states that six
of Pennsylvania's commissioners "shall be appointed by the
Governor . . . for terms of five years." Compact art. II. The
case law cited by Pievsky in support of his argument are readily
distinguishable. In Humphrey's Executor v. United States, 295
U.S. 602, 55 S. Ct. 869 (1935), the Supreme Court reviewed
President Roosevelt's attempt to remove a member of the Federal
Trade Commission ("FTC"). Pursuant to the Federal Trade
Commission Act, 15 U.S.C. §§ 41, 42, commissioners of the FTC
were appointed for fixed rotating terms. The Federal Trade
Commission Act provides that "[a]ny commissioner may be removed
by the President for inefficiency, neglect of duty, or
malfeasance in office." 15 U.S.C. § 41. The Supreme Court held
that in light of the statutory language limiting removal, "the
fixing of a definite term subject to removal for cause, unless
there be some countervailing provision or circumstance indicating
the contrary, which here we are unable to find, is enough to
establish the legislative intent that the term is not to be
curtailed in the absence of such cause." Humphrey's Executor,
295 U.S. at 624, 55 S. Ct. at 872. The statute at issue in
Humphrey's Executor contained clear language limiting the removal
authority of the President -- such language is absent from the
Compact.
Moreover, the Supreme Court in Humphrey's Executorconsidered the
character of the commission as an essential basis
for its holding. The Court determined that the FTC was a
nonpartisan body, charged "with the enforcement of no policy
except the policy of the law", and that "[i]ts duties are neither
political nor executive, but predominantly quasi judicial and
quasi legislative." 295 U.S. at 624, 55 S. Ct. at 872. The
Humphrey's Executor court noted that
[I]t is quite evident that one who holds his office only
during the pleasure of another, cannot be depended upon to
maintain an attitude of independence against the latter's
will.
295 U.S. at 629, 55 S. Ct. at 874. Accordingly, the Humphrey's
Executor Court concluded that the President did not have the
authority to remove a member of the FTC prior to the expiration
of that member's term of office for reasons in addition to those
specifically stated in the statute. In contrast, the DRPA is
neither a quasi legislative or quasi judicial body. Also, in
contrast to the character of the FTC, the DRPA is a politically
sensitive body that must be responsive to the programs and
policies of the administration presently in office.
We have previously discussed how the DRPA officers must be
politically accountable in Peters v. Delaware River Port
Authority, 16 F.3d 1346, 1354-55 (3d Cir.), cert. denied, 115 S.
Ct. 62 (1994). In Peters, the Secretary of the DRPA brought suit
claiming that the DRPA infringed his constitutional rights of
free speech and association by failing to reappoint him as its
Secretary solely because he was a member of the New Jersey
Republican Party. We rejected his claim, finding that party
affiliation of the officers of the DRPA was relevant to the
effective functioning of the DRPA. We stated,
The DRPA has broad powers, leaving much room for principled
disagreement on policy goals or their implementation.
. . .
The policy and political issues, including economic
considerations, arising in an entity such as the DRPA are
many. If tolls are raised, bridges fall into disrepair, or
traffic is congested, there are surely political
consequences. Whether decent roads and transit systems will
be made available to all segments of the communities, or
will be provided in a manner perceived as favoring some or
excluding others, raises important and sensitive social,
economic and political questions. . . . Since the governors
of New Jersey and Pennsylvania directly appoint fourteen of
the sixteen member Board of Commissioners, political
responsibility for the DRPA's successes and failures can be
expected to fall on the ruling administration of each state.
. . .
Obviously, the party affiliation or policy views of the
officers in the DRPA could be relevant to the effective
presentation and implementation of particular policy goals.
If the states preferred huge increases in spending for the
construction of bridges, for example, they might
legitimately prefer that high positions in the DRPA not be
filled with individuals belonging to a party which advocates
decreased government spending.
16 F.3d at 1355. Therefore, the DRPA Commissioners must be
accountable to the administration in office in order for the DRPA
to function properly.
The goals of each state are accomplished only through the
DRPA's responsiveness to each state. In order to ensure such
responsiveness, the Governor must have the authority to remove
Pennsylvania's appointed commissioners. The fact that
Pennsylvania's representation on the Commission is comprised
exclusively of Executive Department appointees and officials
lends support to the conclusion that the DRPA is meant to be
responsive to the Executive Branch of the Commonwealth of
Pennsylvania. Six of Pennsylvania's eight commissioners are
appointed by the governor, and the remaining two members who
serve ex-officio are the State Treasurer and the Auditor General,
both of whom are officers of the Executive Department. Compact
art. II; 36 P.S. § 3503. The ability of the Governor to remove
DRPA Commissioners ensures that the commissioners are politically
accountable to each state's administration. This case is clearly
distinguishable from the Supreme Court's holding in Humphrey's
Executive.
The facts underlying Wiener v. United States, 357 U.S. 349,
78 S. Ct. 1275 (1958) are also distinguishable. In Wiener, the
Supreme Court reviewed President Eisenhower's attempt to remove a
member of the War Claims Commission ("WCC"). Congress
established the WCC to adjudicate claims by United States
citizens against Japan as a result of World War II. The statute
was silent with regard to the removal of members of the WCC. It
provided that the commissioners' terms would expire
simultaneously with the life of the Commission. The Supreme
Court concluded that the adjudicatory nature of the task imposed
by Congress on the WCC lead to the conclusion that Congress did
not leave room for the President to remove members and replace
them with individuals of his own choosing. The Court stated,
If, as one must take for granted, the War Claims Act
precluded the President from influencing the Commission in
passing on a particular claim, a fortiori, it must be
inferred that Congress did not wish to have hang over the
Commission the Damocles' sword of removal by the President
for no reason other than that he preferred to have on that
Commission men of his own choosing.
Wiener, 357 U.S. at 356, 78 S. Ct. at 1279. Here, the DRPA does
not perform any tasks that may be classified as adjudicatory. In
contrast to the WCC, the Compact between Pennsylvania and New
Jersey envisions that the administration of each state would
influence the DRPA in deciding which policies to implement and
which goals to pursue.
We also find that Borders v. Reagan, 518 F. Supp. 250 (D.
D.C. 1981), order vacated as moot, 732 F.2d 181 (D.C. Cir. 1982),
is distinguishable. In Borders, the district court held that
President Reagan could not remove at will a member of the
District of Columbia Judicial Nominating Commission that
President Carter had appointed. The District of Columbia Self-
Government and Governmental Reorganization Act ("Act") provides
that the Commission would consist of seven members who "shall
serve" for terms of six years, except for the member appointed by
the President who "shall serve" for a term of five. 11 D.C.Code
App. § 434 (Supp. IV 1977). The Act made no provision for the
removal of commission members.
The district court in Borders held the language of the
statute made clear that Congress did not intend a member of the
commission would serve only at the pleasure of the appointing
authority; rather, once an appointment was made it anticipated
that the member would serve a complete term. The plain language
of the Act provides that a member "shall serve" for the term of
years. The Act makes no provision for the removal of a member,
but does provide for the appointment of a member when a vacancy
occurs. The district court noted that the Act contemplated that
vacancies would occur only at the expiration of a given term:
The Act provides that for vacancies occurring "other than [upon]
the expiration of a prior term," the new member would serve only
for the "remainder of the unexpired term of his predecessor."
Act at § 434(b)(2). Thus, even if Borders were binding on us,
the district court's conclusion in that matter that Congress did
not intend a commissioner to be removed at will is
distinguishable.
The plain language of the DRPA Compact does not indicate, as
the language of the statute in Borders did, that the state
legislatures contemplated vacancies on the DRPA Board would occur
only at the expiration of DRPA members' expired terms. Moreover,
the court's decision in Borders rested on additional grounds that
are not present in this case. The Act provided for staggered
terms for six of the commissioners, which the court determined
was evidence of Congressional intent that the members be isolated
from political considerations and political changes.
Pievsky also asserts that the DRPA is an interstate entity
which is not under the control of the Commonwealth of
Pennsylvania or the State of New Jersey. He cites Hess v. Port
Authority Trans-Hudson Corp., __ U.S. __, 115 S. Ct. 394 (1994),
for the proposition that "[b]ecause Compact Clause entities owe
their existence to state and federal sovereigns acting
cooperatively, and not to any 'one of the United States,'...their
political accountability is diffuse; they lack the tight tie to
the people of one State that an instrument of a single State
has." 115 S. Ct. at 401. We agree that the DRPA is not under
the control of any one state. As we stated in Peters the DRPA is
"not designed to further the political agenda of any one state or
administration." Peters, 16 F.3d at 1355. Nevertheless,
pursuant to the appointing process, Pennsylvania-appointed DRPA
officials are under the control of the Pennsylvania Governor,
just as New Jersey-appointed DRPA Commissioners must be
politically accountable to the Governor of New Jersey.
D.
As previously discussed, in Humphrey's Executor the Supreme
Court stated "the power of the President to remove an officer
shall prevail over the authority of Congress to condition the
power by fixing a definite term and precluding a removal except
for cause will depend upon the character of the office." 295
U.S. at 631-32, 55 S. Ct. at 875. In Morrison v. Olson, 487 U.S.
654, 108 S. Ct. 2597 (1988), the Supreme Court clarified the
meaning of the "character of the office" inquiry that courts must
undertake in assessing whether Congress has impermissibly
restricted the executive branch's authority to remove an
appointed official. The Morrison Court was faced with the
question of whether the provisions of the Ethics in Government
Act impermissibly restricted the Attorney General's ability to
remove the independent counsel. The Court stated that the
legitimacy of congressional limitations on the chief executive's
powers of removal turns upon "whether the removal restrictions
are of such a nature that they impede the President's ability to
perform his constitutional duty, and the functions of the
officials in question must be analyzed in that light." Id. at
690-91, 108 S. Ct. at 2619.
The Morrison Court went on to hold that the Act did not
impermissibly interfere with the President's ability to perform
his constitutional duty because, though the President could not
remove the independent counsel at will, the statute provided that
the President, through the Attorney General, could remove the
independent counselor for good cause. The Supreme Court reasoned
that this ability gives the President "ample authority to assure
that the counsel is competently performing his or her statutory
responsibilities . . . ." Id. at 692, 108 S. Ct. at 2620.
Pievsky's case is distinguishable from Morrison because the
"character of office" analysis is based on a separation of powers
inquiry which is not at issue here; and in any event, here, the
Governor's inability to remove DRPA Commissioners prior to the
expiration of their terms would impede his ability to carry out
his functions as Chief Executive of the Commonwealth of
Pennsylvania. As Governor, the defendant in this case is charged
with ensuring that the laws of the state are "faithfully
executed." Pa. Const. art. II, § 2. The Governor's obligation
to ensure the proper functioning of the DRPA is one of the duties
charged to him pursuant to the Commonwealth's Constitution.
Moreover, The Pennsylvania Constitution states:
All civil officers shall hold their offices on the condition
that they behave themselves well while in office, and shall
be removed on conviction of misbehavior in office or of any
infamous crime. Appointed civil officers, other than the
judges of the courts of record, may be removed at the
pleasure of the power by which they shall have been
appointed.
Pa. Const. art. VI, § 7. Pievsky is neither a "judge of the
courts of record," nor "a civil officer elected by the people."
Absent language in the Compact to the contrary, which we do not
find, the Governor's constitutional duty includes removing
appointed officials at his pleasure. Because the Compact does
not limit the Governor's removal power, the Governor may exercise
his power under the Pennsylvania Constitution to remove appointed
officials to the DRPA Board. We agree with Pievsky's contention
that the Compact is in the nature of federal law, and, under the
Supremacy Clause of the U.S. Constitution, could limit the
Governor's ability to remove his appointed officials. However,
as discussed above, we conclude under a federal law analysis that
the legislatures which passed the Compact did not intend to
restrict the Governor's ability to remove DRPA Commissioners in
this manner.
The appointed members of the DRPA are "policy makers" who
exercise executive powers and are expected to carry out the
policies of the current administration of each state; they are
not comparable to the commissioners of the FTC, the commissioners
of the WCC, or the independent counsel in Morrison. Far from
needing independent appointees, "the DRPA needs officers who are
capable of efficiently, effectively, and loyally accessing the
political channels that influence the DRPA's agenda and
direction." Peters, 16 F.3d at 1356. Considering the mission of
the DRPA, and the burden that inter-state conflicts place on the
effective functioning of this bi-state authority, the
legislatures could not have intended to create a board on which
Pennsylvania's members are independent of the current Governor.
E.
Though state law is not binding, federal courts show
deference to prior state adjudications and rulings in construing
an interstate compact. See State ex. rel. Dyer v. Sims, 341 U.S.
22, 28, 71 S. Ct. 557, 560 (1951). Pennsylvania law is in accord
with federal law that the Pennsylvania Governor may remove a DRPA
commissioner at will and prior to the expiration of the term.
The removal of state officers in Pennsylvania is governed by the
Commonwealth's Constitution which provides that "[a]ppointed
civil officers, other than the judges of the courts of record,
may be removed at the pleasure of the power by which they shall
have been appointed." Pa. Const. art. VI, § 7. In the absence
of statutory language providing otherwise this constitutional
provision governs the removal of appointed officials. Watson v.
Pennsylvania Turnpike Comm'n, 125 A.2d 354, 356-57 (Pa. 1956).
The legislature may "impose such terms and limitations with
reference to the tenure and removal of an incumbent [state
official] as it sees fit." Id. at 356.
The Pennsylvania Supreme Court has held that where a statute
provides for fixed terms with staggered expiration dates, the
legislature intended that those appointed shall not be removable
at the will of the appointing authority. Id. at 356-57; see
alsoCommonwealth ex. rel. Sortino v. Singley, 392 A.2d 1337 (Pa.
1978); Bowers v. Pennsylvania Labor Relations Bd., 167 A.2d 480,
484-85 (Pa. 1961); Commonwealth ex. rel. Hanson v. Reitz, 170
A.2d 111 (Pa. 1961). However, the mere fixing of a definite term
does not override the dictates of Article VI, § 7 of the
Constitution which gives removal power to the appointing
authority. See Schluraff v. Rzymek, 208 A.2d 239 (Pa. 1965)
(plaintiff appointed to fixed term removable at-will); see alsoNaef v.
City of Allentown, 227 A.2d 888, 890-891 (Pa.
1967)(plaintiff appointed to fixed term of four years removable
at-will; "solicitor is an important confidant . . . in the
administration of the city's business. To hold that one who is
unacceptable must be retained in such a position would lead to a
seriously disturbed municipal situation."); Commonwealth ex. rel.
Schofield v. Lindsay, 198 A. 635 (Pa. 1938). Pennsylvania case
law provides that the staggering of terms, not the mere fixing of
a definite term in office, bars the Governor from removing an
appointed official at will. See Naef, 227 A.2d at 890; see alsoSchluraff,
208 A.2d at 239. Therefore, in light of the fact that
the DRPA Commissioners' terms are fixed and not staggered, the
Pennsylvania Constitution, as interpreted by the Pennsylvania
Supreme Court, does not preclude the Governor from removing
Pievsky prior to the expiration of his term.
We note that the Pennsylvania Attorney General has
officially opined that Pennsylvania's appointees to the DRPA are
removable at will. See Pennsylvania Attorney General's Official
Opinion, No. 280 issued on March 24, 1939 at 1939-40. Article
VI, Section 4 was renumbered as Article VI, Section 7 in 1966.
Pennsylvania courts and state agencies accord deference to the
formal opinions of Pennsylvania's Attorney General on matters of
statutory interpretation. Baird v. Township of New Britain, 633
A.2d 225, 229 n. 7 (Pa. Commw. Ct. 1993), allocatur denied, 642
A.2d 488 (1994); see also Schell v. Eastern York Sch. Dist., 500
A.2d 896 (Pa. Commw. Ct. 1985). We note that the Attorney
General of New Jersey has also issued an opinion that the
Pennsylvania appointees to the DRPA Board are removable at will
by the Governor of Pennsylvania. Def.'s Supplemental Appendix,
Memorandum from Attorney General George F. Kugler, Jr. to
Governor William T. Cahill, October 6, 1971. We need not decide
the extent of deference due in this situation in light of all the
other convincing bases for our conclusion that by reason of the
state constitutional provisions governing the removal of
appointed officials, and given that the DRPA commissioners' terms
are fixed and not staggered, the Governor has the power to remove
appointed DRPA Commissioners at will.
V.
For the foregoing reasons, we conclude that the Governor of
Pennsylvania has the power to remove an appointed DRPA
Commissioner at will and prior to the expiration of the term.
Accordingly, we will affirm the order of the district court
entered on April 12, 1996. Each party to bear its own costs.