W.J. Green, IV, individually and in his official capacity as Chairman of the School Reform Commission v. Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William J. Green, IV, individually and :
in his official capacity as Chairman of :
the School Reform Commission, :
Petitioner :
:
v. :
:
Thomas W. Wolf, in his official :
capacity as Governor of the :
Commonwealth of Pennsylvania; :
The School Reform Commission of :
the School District of Philadelphia; :
and Marjorie Neff, in her Capacity as :
member and putative Chair of the :
School Reform Commission, : No. 256 M.D. 2016
Respondents : Argued: October 19, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION
BY JUDGE COSGROVE FILED: December 4, 2017
In this matter, arising in our original jurisdiction, William J. Green, IV
(Petitioner) challenges his removal by Governor Thomas W. Wolf (Governor Wolf)
1
This case was argued before an en banc panel of the Court that included former Judge
Julia K. Hearthway. Because Judge Hearthway’s service on the Court ended September 1, 2017,
this matter was submitted on briefs to Judge Simpson as a member of the panel.
as chairman of the School Reform Commission (SRC).2 For the reasons set forth
below, we dismiss Petitioner’s Application for Summary Relief and Amended
Petition for Review, and sustain Governor Wolf’s preliminary objections. As such,
any request for injunctive relief is dismissed as moot.
The School District of Philadelphia 3 was declared distressed by the
Secretary of Education in 2001. Following this declaration, the SRC was created,
consisting of both gubernatorial appointees and members appointed by the mayor of
Philadelphia. Nine years later, a vacancy occurred on the SRC, allowing for yet
another gubernatorial appointment. On January 17, 2014, then-Governor Tom
Corbett (Governor Corbett) nominated Petitioner to a five-year term on the SRC,
with Senate confirmation following on February 4, 2014. Pursuant to Section
696(a), Governor Corbett appointed Petitioner chairman of the SRC on February 18,
2014. This appointment did not require Senate confirmation.
On March 2, 2015, Governor Wolf removed Petitioner as SRC
chairman and replaced him with Respondent Marjorie Neff (Neff) that same day.
More than thirteen months later, on April 19, 2016, Petitioner filed his initial petition
for review as well as his application for summary relief. After Governor Wolf filed
an answer, new matter, and preliminary objections, Petitioner filed the Amended
2
Section 696 of the Public School Code of 1949 (School Code) provides for a process
whereby the SRC is established within thirty days of a declaration that a school district of the first
class is distressed. Act of April 27, 1998, P.L. 270, 24 P.S. § 6-696. Act 46 added Section 696 to
the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 –
27-2702. We take judicial notice of the SRC’s November 16, 2017 invocation of Section 696(n)
of the School Code, which provides a majority of the SRC may recommend to the Secretary of
Education that the SRC be dissolved. 24 P.S. § 6-696(n). If accepted by the Secretary of
Education, this invocation will result in dissolution of the SRC.
3
At present, only the School District of Philadelphia is classified under Section 202 of the
School Code as a “school district of the first class.” 24 P.S. § 2-202.
2
Petition for Review and the Application for Summary Relief which are before us
now.4 It was to these that preliminary objections were again filed by Governor Wolf.
By order dated July 18, 2016, this Court, McCullough, J., directed
argument to be held on Petitioner's application and Governor Wolf's preliminary
objections. This matter was heard en banc after additional briefing by the parties.
In his Amended Petition for Review, Petitioner seeks quo warranto,
mandamus, and declaratory and injunctive relief. Similarly, Petitioner’s Amended
Application for Summary Relief asserts that his right to relief is clear and requests
this Court issue a writ of quo warranto removing Neff as Chair of the SRC, issue a
writ of mandamus reinstating Petitioner as Chair, enter judgment declaring a Chair
of the SRC may only be removed for cause, and issue a permanent injunction 5
4
By order dated May 26, 2016, and in light of the amended petition and application, this
Court, Friedman, J., directed that the original request for summary relief, as well as Governor
Wolf's original preliminary objections, be stricken.
5
Petitioner’s Amended Petition for Review does not contain a separate count requesting
injunctive relief. Rather, the request for a permanent injunction is set forth in Petitioner’s prayer
for relief. (Petitioner’s Amended Petition for Review at 16.) An injunction is an extraordinary
remedy that should be used with caution and only where the rights and equity of the petitioner are
clear and free from doubt and the harm to be remedied is great and irreparable. Woodward
Township v. Zerbe, 6 A.3d 651, 658 (Pa. Cmwlth. 2010). The required elements of injunctive
relief are: a clear right to relief; an urgent necessity to avoid an injury that cannot be compensated
in damages; and a finding that greater injury will result from refusing, rather than granting, the
relief requested. Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 (Pa.
Cmwlth. 2008).
On October 6, 2016, Petitioner filed an Application for Special Relief in the Nature of a
Preliminary Injunction. Petitioner alleges that, by letter delivered to the mayor of Philadelphia,
Neff expressed her intent to resign from the SRC. Consequently, Petitioner requests this Court
enjoin Governor Wolf from appointing another Chair of the SRC. Separate standards govern a
request for a preliminary injunction and a request for permanent injunctive relief: a preliminary
injunction looks for the presence of imminent, irreparable harm, whereas a permanent injunction
is warranted if no adequate remedy at law exists for a legal wrong. Lindeman v. Borough of
3
enjoining any further attempts to remove Petitioner from the office of Chair of the
SRC absent cause. In support, Petitioner cites, among other things, Section 696 of
the School Code6 and Arneson v. Wolf, 117 A.3d 374 (Pa. Cmwlth.), affirmed and
adopted, 124 A.3d 1225 (Pa. 2015).7
Governor Wolf offers the following preliminary objections (all of
which are in the nature of a demurrer): (1) Petitioner’s claims are time-barred by
the statute of limitations set forth in 42 Pa.C.S. § 5522(b)(1); (2) quo warranto is not
the appropriate cause of action to challenge Petitioner’s replacement as Chair of the
SRC; (3) mandamus may not be used to compel Governor Wolf to re-name
Petitioner to the position of Chair of the SRC; (4) Petitioner had the potential to
allege alternative remedies and therefore his claim for declaratory relief is without
merit; and (5) Section 696 of the School Code does not condition the removal of a
member of the SRC from the position of Chair.
DISCUSSION
According to Petitioner, “[t]his case hinges on one question: Can the
Governor replace the chairman of the [SRC] absent clear and convincing evidence
of malfeasance or misfeasance in office?” (Petitioner’s Brief in Opposition to
Meyersdale, 131 A.3d 145, 151 (Pa. Cmwlth. 2015). As of the date of the filing of this opinion,
Joyce Wilkerson has been appointed Chair of the SRC by the Governor. We therefore dismiss
Petitioner’s Application for Special Relief as moot.
6
In West Philadelphia Achievement Charter Elementary School v. School District of
Philadelphia, 132 A.3d 957 (Pa. 2016), our Supreme Court held portions of Section 696 to be an
unconstitutional delegation of legislative authority. Those provisions are not at issue in the matter
sub judice.
7
This Court's decision will be referred to hereafter as Arneson I, and the Supreme Court's
as Arneson II.
4
Governor Wolf’s Preliminary Objections (Petitioner’s Brief) at 1.) Section
696(b)(2) of the School Code provides for removal of commission members “from
office during a term” only “upon proof by clear and convincing evidence of
malfeasance or misfeasance in office…” 24 P.S. § 6-696(b)(2). As there is no
question that Petitioner has not engaged in any such malfeasance or misfeasance, he
argues that his removal from the chair of the SRC was improper.
Essential to Petitioner's "one question" is the definition of “office.”
According to Petitioner, "the office of Chairman of the SRC falls squarely within
the definition of 'public office,' or 'civil office,' entitling the holder of that office to
protection under section 696." (Petitioner's Brief at 11.) However, despite
Petitioner's arguments to the contrary, there is nothing in Section 696 which would
suggest that the position of chair is a separate and distinct public office embodied
with duties separate from those of the other SRC members, and possessing
protections (i.e., removal only for cause) which are also applicable to the underlying
office of member of the SRC.
"A person will be deemed a public officer if the person is appointed or
elected to perform duties of a grave and important character, and which involve some
of the functions of government, for a definite term." Werner v. Zazyczny, 681 A.2d
1331, 1337 (Pa. 1996). Not everyone a governor appoints to a particular position
holds an “office." The Supreme Court made this clear when it adopted and
supplemented this Court's decision in Arneson I and recognized, unless otherwise
mandated by statute, "the Governor’s constitutional power to remove his appointees
at-will." Arneson II, 124 A.3d at 1227 (emphasis added). This is, naturally, the
default position encompassing an assessment of the Governor's removal power when
5
a more restrictive legislative intent is not present, or when the position in question
cannot be considered an office within the constitutional sense.
In applying the Werner criteria to the present case, it is difficult to see
how one can argue that the chairmanship of the SRC is an office. Section 696
bestows no “duties” whatsoever on the SRC chair, let alone duties which are "grave"
or "important." Werner. Likewise, there is no statutory suggestion that the SRC
chair performs any "function" in addition to his or her underlying role as an SRC
member, nor does s/he serve "for a definite term" as chair. Id. In this light, there is
no support for the argument that, under Section 696, the SRC chair fits the definition
of office.
Nonetheless, Petitioner relies heavily on this Court's decision in
Arneson I. At issue in that case was the removal of the Executive Director of the
Office of Open Records (OOR). Shortly after taking office, Governor Wolf
dismissed Erik Arneson (Arneson), who had been appointed by Governor Corbett in
the waning days of Governor Corbett's Administration. This Court analyzed
Arneson’s dismissal from several angles, paying particular attention to the nature of
the Office of Executive Director, the purpose of the open records statute itself, its
role in government generally (and specifically its relationship to the executive
branch), "its quasi-judicial functions," and the permeation of legislative intent
throughout the statute that, as an "independent administrative agency," OOR's
executive director could only be removed for cause. Arneson I, 117 A.3d at 376-
377. Stressing that the OOR is "a unique and sui generis independent body," id. at
376, and that Arneson's removal was not based on any criteria which would establish
cause, this Court found Governor Wolf’s action to be unconstitutional, and directed
Mr. Arneson’s reinstatement.
6
The position from which Petitioner was removed bears little
resemblance to that of OOR executive director. At first glance, it is clear that the
entities themselves are quite dissimilar, with SRC having no broad watchdog role in
state government that OOR may possess. Nor can the SRC chair be compared in
any way to the executive director of OOR where the latter has specific, defined, and
important functions while the former simply has none. It is this last point which
bears heavily on our decision: the SRC chair has no duties to perform whatsoever,
other than those which are required of this individual as a member of SRC.
Petitioner argues contrary, citing “SRC Board Policies” which, among other things,
provide that the SRC chair “establish[es SRC] meeting agendas and SRC
committees..." (Petitioner’s Amended Petition for Review at Paragraph 12;
Petitioner's Brief at 14.) If rules of order adopted by the SRC bestow procedural
authority on the chair, as Petitioner suggests, that is merely a function of SRC's
power to administer itself, functions which it could easily assign to any other of its
members. In short, there is nothing statutorily which defines the SRC chair in any
way comparable to the OOR's executive director, thus distinguishing Arneson from
any comparison to the case at hand.
As noted above, the Supreme Court recognizes the inherent power of
the Governor, unless otherwise legislatively fettered, to remove "his appointees at-
will." Arneson II, 124 A.3d at 1227. While appointment and removal powers are
outlined in Article 6, Sections 1 and 7 of the Pennsylvania Constitution, the authority
to dismiss “at-will” noted in Arneson II extends beyond specific constitutional
provisions and is a function of "[t]he supreme executive power ... vested in the
7
Governor." Pa. Const. art. 4, § 2.8 Consistent with that power, removal of Petitioner,
a gubernatorial appointee, from a position that has no duties or role assigned to it,
was well within Governor Wolf's constitutional authority. Petitioner was not
removed from office. While he no longer holds the position of chairman, he is
nonetheless a full, commissioned member of the SRC in good standing, holding all
the rights and privileges of that office until his term ends, he is removed pursuant to
Section 696(b)(2) of the School Code, or the SRC ceases to exist.
For these reasons, the relief Petitioner seeks cannot be granted.
___________________________
JOSEPH M. COSGROVE, Judge
8
While each of this Commonwealth's constitutions since Independence has recognized
“executive power” as “supreme,” this is in contrast to their federal counterpart, which contains no
such superlative. See U.S. Const. art. II, § 1: "The executive Power shall be vested in a President
of the United States of America."
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William J. Green, IV, individually and, :
in his official capacity as Chairman of :
the School Reform Commission, :
Petitioner :
:
v. :
:
Thomas W. Wolf, in his official :
capacity as Governor of the :
Commonwealth of Pennsylvania; :
The School Reform Commission of :
the School District of Philadelphia; :
and Marjorie Neff, in her Capacity as :
member and putative Chair of the :
School Reform Commission, : No. 256 M.D. 2016
Respondents :
ORDER
AND NOW, this 4th day of December, 2017, Petitioner's Amended
Petition and his Application for Summary Relief are dismissed, and Respondent's
Preliminary Objections are sustained. Accordingly, Petitioner's request for
injunctive relief is dismissed as moot.
___________________________
JOSEPH M. COSGROVE, Judge