Citation Numbers： 117 A.3d 374, 2015 Pa. Commw. LEXIS 251
Judges： Brobson, Covey, Jubelirer, Leadbetter, Leavitt, McCullough, McGinley, Pellegrini
Filed Date： 6/10/2015
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
In this case, the Court discerns legislative intent to determine whether the Executive Director of the Office of Open Records (OOR), a unique and mi generis independent body, was meant to be independent from the executive branch and insulated from the Governor’s constitutional power to remove appointees at-will.
The legal concept of “independent administrative agency” has generated a wealth of commentary, but the defining characteristic of an independent agency is precisely that — the agency is independent in the sense that it is free from the control and influence of the chief executive. In this vein, our courts have recognized that if the legislature creates a public office, it may impose terms regarding tenure and removal as it sees fit, and if the legislature intends for an agency to be “independent,” then the legislature has the authority to circumscribe the Governor’s removal power.
No one disputes that the OOR is a unique administrative agency and that the Executive Director, as the head of this agency, assumes an inimitable role in its operations. The OOR is a quasi-judicial
Significantly, the OOR’s statutory obligations include determining whether even documents of the Governor, and the executive branch in general, should be disclosed to the public; hence, the two entities can often be diametrically opposed for purposes of the RTKL. The OOR is structurally and functionally independent from the executive branch; the Executive Director oversees the OOR, its quasi-judicial functions, and has a statutorily-fixed term that exceeds the appointing Governor’s term. The Court considers these and additional factors in ascertaining whether the legislature, in enacting a RTKL designed to promote public access to information, expressed intent to limit a Governor’s power to remove the Executive Director except for cause.
After careful review, we conclude that the legislature has expressed such intent.
Facts/Procedural History
On February 18, 2015, the parties submitted a joint stipulation of facts and exhibits, agreeing to the following.
On January 13, 2015, then-Governor Tom Corbett lawfully appointed Erik Arneson to be the Executive Director of the OOR, designating his tenure as January 13, 2015, through January 13, 2021, “and until your successor is appointed and qualified, if you shall so long behave yourself well.” (Stipulation of Facts, Ex. B.) Arneson received his commission on that same date, and, on January 16, 2015, he took the oath of office.
On January 20, 2015, Governor Thomas W. Wolf officially became the new Governor of Pennsylvania. Governor Wolf authored a letter dated January 20, 2015, and delivered it to Arneson on January 22, 2015. This letter informed Arneson that Governor Wolf was terminating his employment as the OOR’s Executive Director immediately.
On January 26, 2015, Arneson, individually and in his official capacity as Executive Director of the OOR, and the Senate Majority Caucus (together, Arneson) filed a petition for review in the nature of a
In his petition for review, Arneson pled a mandamus count and a count for declaratory relief, contending that Governor Wolf terminated his employment as the Executive Director of the OOR in violation of the Pennsylvania Constitution and the RTKL. In his prayer for relief, Arneson seeks, among other things: (1) a writ of mandamus restoring him to the position of Executive Director; (2) backpay and benefits; (3) a declaration that Governor Wolf violated the Pennsylvania Constitution and the RTKL; and (4) an injunction permanently enjoining Governor Wolf from making further attempts to remove him as Executive Director without cause.
Following the filing of pleadings and applications by the parties, including Arne-son’s application for a special and preliminary injunction, President Judge Dan Pel-legrini issued an order dated February 4, 2015. In this order, President Judge Pel-legrini noted that Arneson withdrew his application for a special and preliminary injunction and ordered that the case be listed for the March argument session before the Court en banc. President Judge Pellegrini further directed the parties to file cross-motions for summary relief on stipulated facts and briefs.
The parties then filed cross-motions for summary relief and briefs in support of their respective positions.
Discussion
In his brief, Arneson contends that by enacting this new RTKL and creating the position of Executive Director, the legislature expressed its intent to limit a Governor’s removal power and that in accordance with principles of statutory construction, the Executive Director can only be removed for cause. Arneson argues that to limit a Governor’s removal power, explicit statutory language is unnecessary, and that the basic structure and specific provisions of the RTKL clearly reflect the legislature’s general intent to curtail a Governor’s power to remove an Executive Director at his pleasure.
In advancing this argument, Arneson relies principally upon four factors: (1) the Executive Director serves for a mandatory six-year term that exceeds or staggers the four-year term of the initially-appointing Governor; (2) the legislature barred an Executive Director from seeking election or appointment to a political office during his tenure as Executive Director and for one year after his tenure; (3) the OOR is a unique and independent administrative agency that reviews other agency’s actions under the RTKL, including the Office of the Governor; and (4) the goal of the RTKL is to promote access to official government information and this goal can only be accomplished if the Executive Director and the OOR remain independent from the Governor and the Executive Director is not under the pressure of being removed at the Governor’s pleasure.
In addition, Arneson asserts that the Executive Director performs quasi-ju
In his brief, Governor Wolf argues that there is no explicit statutory language governing the removal of the Executive Director, and, therefore, it is presumed that the Executive Director can be removed absent cause. Governor Wolf contends that even though the six-year term for an Executive Director is longer than the appointing Governor’s term, it is still a term of years and does not overcome the presumption that an appointee can be removed at-will.
Governor Wolf also advocates that the RTKL does not expressly designate the OOR as an “independent agency,” and states that the OOR is housed by statute within the DCED, a department of the executive branch. Governor Wolf further dismisses Arneson’s claim that the OOR needs to be independent from the Governor and the executive branch, contending that the OOR’s decisions are not accorded any deference when they are reviewed on appeal; the OOR’s decisions are automatically stayed pending appeal; this Court can act as fact-finder on appeal; and the judiciary, rather than the OOR, serves as the independent decision-maker in requests for records.
Finally, Governor Wolf contends that there is no “quasi-judicial” exception to his removal power under the Pennsylvania Constitution and that, even if one existed, the RTKL does not create a “quasi-judicial” entity or a “quasi-judicial” Executive Director. Governor Wolf notes that Chief Justice Jones’ commentary in Bowers merely represented the view of one Justice and did not gamer the joinder of any other Justices in that case.
Analysis
Our determination of whether the Governor can remove the Executive Director of the OOR without cause is necessarily premised on an analysis of the Pennsylvania Constitution and established precedent.
Article VI, Section 7 of the Pennsylvania Constitution concerns public officers such as the Executive Director of the OOR and provides:
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 judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
Pa. Const, article VI, § 7 (emphasis added).
This section of the Pennsylvania Constitution is read in conjunction with Article VI, Section 1, which discusses the appointment of officers not provided for in the
The correlation between an appointer’s removal power in Article VI, Section 7, and the legislative power to create appointed offices in Article VI, Section 1, has long been recognized by our Supreme Court:
It is established in this State beyond respectable controversy that, where the legislature creates a public office, it may impose such terms and limitations with reference to the tenure or removal of an incumbent as it sees fit. Whether an appointed civil officer holding a legislatively created office is subject to removal at the pleasure of the appointing power depends upon legislative intent, to be gleaned from the statute creating or regulating the office.
Commonwealth ex rel. Sortino v. Singley, 481 Pa. 367, 392 A.2d 1337, 1339 (1978) (emphasis added) (quotations and citations omitted). See Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354, 356 (1956) (“There is nothing in the Constitution prohibiting such [legisla-five] action while, on the other hand, Article XII, Section 1 [now Article VI, Section 1], expressly admits of it.”). Indeed, our Supreme Court “has consistently recognized that, when the General Assembly creates a public office, it may impose terms and limitations on the removal of the public officer so created.” Burger v. School Board, of McGuffey School District, 592 Pa. 194, 923 A.2d 1155, 1164 (2007) (citations omitted).
As the judicial branch, it is this Court’s constitutional mandate to decipher legislative intent. In Bowers, our Supreme Court instructed: “[WJhether the legislature in creating an appointive office has evidenced by its enactment an intention that the tenure of the appointee shall not be subject to termination at the pleasure of the appointing power presents a pure question of statutory construction which is peculiarly and exclusively the function of the judiciary to resolve.” 167 A.2d at 482.
There has never been a holding by the Supreme Court or this Court that a statute must explicitly say “the officer may only be removed for cause” to find a legislative limitation on removal. In this case, the legislature did not specifically state in the RTKL that the Executive Director could be removed only for cause. Conversely, the legislature did not state in the RTKL that the Executive Director serves at the pleasure of the Governor. Accordingly, this Court must analyze the RTKL and relevant statutes to discern the legislature’s intent on the topic. Singley, 392 A.2d at 1339; Bowers, 167 A.2d at 482; Venesky v. Ridge, 789 A.2d 862, 864 (Pa.Cmwlth.2002) (en banc), aff'd without opinion in 570 Pa. 461, 809 A.2d 899 (2002).
We begin by recognizing that section 1310(b) of the RTKL creates the office of the Executive Director and sets forth a fixed term for the position:
(b) Executive director. — Within 90 days of the effective date of this section, the Governor shall appoint an executive director of the office who shall serve for a term of six years. Compensation shall be set by the Executive Board established under section 204 of the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929. The executive director may serve no more than two terms.
Section 1310(b) of the RTKL, 65 P.S. § 67.1310(b) (emphasis added). The Executive Director’s fixed, six-year term exceeds the four-year term of the appointing Governor. Similarly, by virtue of the two-term or twelve-year limit proscribed in the statute, a reappointed Executive Director will outlast any two-term Governor.
In Watson, the governor appointed the plaintiff in 1952 as a member of the Pennsylvania Turnpike Commission (Commission) for a term expiring in 1961. In 1955, a newly-elected Governor dismissed the plaintiff in reliance on his constitutional authority under then Article VI, Section 4 — now Article VI, Section 7 — of the Pennsylvania Constitution. Our Supreme Court analyzed the statute creating the Commission and legislative intent to determine “whether the Governor had the power ... to remove from office, at his pleasure, a member of the [Commission] during the fixed term of office for which he was appointed and confirmed.” 125 A.2d at 355.
Our Supreme Court noted that pursuant to statute, the Commission consisted of four members, who shall continue in office for terms of four, six, eight, and ten years, respectively. The court concluded that the composition of the Commission and the nature of the individual terms was a significant factor in deciding whether the legislature intended to limit the Governor’s removal power. In particular, the court determined:
The purpose of the foregoing provision as to the terms of office of the Commissioners ... is patent. It was designed so that, by the prescribed rotation, the terms of three of the four appointed members of the Commission would always be current-Were the Commissioners to be held removable at the pleasure of the Governor, the carefully expressed scheme of term rotation would be effectually nullified. If it be countered that the Governor, in appointing to a vacancy created by his dismissal of a Commissioner, would respect the spirit of the Act ... the answer is that the power so attributed to the Governor would still violate the plain intendment*382 of the Act. He could render all of the offices vacant at one time which, obviously, the Act was specifically designed to make impossible.
125 A.2d at 357.
Accordingly, the court in Watson concluded that the prescribed rotation of the Commissioners’ terms, in and of itself, evidenced the legislature’s intent that the Commissioners only be removed for cause. The Court clearly discerned legislative intent by focusing on the net effect of allowing the Governor to remove the Commissioners without cause. In essence, such unbridled power by the governor to remove the Commissioners without cause would nullify the intent that the Commissioners’ terms overlap the Governor’s terms of office. This legal tenant originating in Watson has been described as the “fixed, staggered rule,” Singley, 392 A.2d at 1339, and may be summarized as follows. “[W]here public officers are appointed to a legislatively created commission or board, for a statutorily fixed term with staggered expiration dates, the presence of the staggered term provision indicates a legislative intent that the holders of the office are not to be removed at the pleasure of the appointor.” Naef v. City of Allentown, 424 Pa. 597, 227 A.2d 888, 890 (1967).
In Venesky, a Governor appointed the plaintiff as a member of the Pennsylvania Game Commission (Game Commission) in 1998 and the same Governor dismissed the plaintiff in 2000 before the expiration of the plaintiff’s term. Under the then-current Game and Wildlife Code, the term of office for all of the commissioners was the same, eight years, and did not provide for staggered expiration dates. After acknowledging Watson’s “fixed, staggered rule,” this Court focused on the fact that from 1937 until 1987, the former Game and Wildlife Code had staggered terms, but the legislature created a new Game and Wildlife Code in 1998 that omitted the staggered terms and replaced them with fixed terms that concluded uniformly. Venesky, 789 A.2d at 865. Ultimately, this Court determined that the legislature’s shift from staggered terms to non-staggered terms in the Game and Wildlife Code was a dispositive factor in ascertaining legislative intent, noting that the previous version of the Game and Wildlife Code was an “explicit, regulated statutory scheme” and that the legislative change reflected the intent to alter this scheme. Id. For this reason, we concluded that the Governor could remove a member of the Game Commission at his pleasure.
One of the original members shall be appointed for a term of two years, one for a term of four years, and one for a term of six years, but their successors shall be appointed for terms of six years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he is to succeed.
167 A.2d at 482 (quoting 43 P.S. § 211.4).
Due to the passage of time from when the Act was enacted (1937) and the appointment at issue was made (1955), the Governor in Bowers seemingly appointed the board member to a four-year term in order to fill the unexpired term of a vacant predecessor who was originally appointed to a six-year term. That same Governor then removed the board member before the member’s term expired.
In discussing the purpose behind the “fixed, staggered rule,” and concluding that the Governor could not remove the board member absent cause, the court in Bowers stated, in relevant part:
The legislature by providing in the Pennsylvania Labor Relations Act staggered expiration dates for fixed terms of Board members of a duration which, if fulfilled, would extend beyond the incumbency of the appointing Governor ... evidenced a desire and intent ... that duly confirmed members of the Pennsylvania Labor Relations Board possess tenure for the fixed terms for which they are appointed and may not be removed by the Governor except for cause.
167 A.2d at 483-84 (italics emphasis in original, bold emphasis added). Relying on this rationale, the Bowers court found that the case before it could “not be distinguished, in principle, from Watson.” Id. at 484-85.
Here, there is only one appointee, the Executive Director, who serves a fixed, six-year term, and the only staggering that could occur is between the Governor and the Executive Director. Although the terms at issue in Venesky were eight-year terms, the Game Commission consisted of eight members, which, unlike the instant case, could be staggered amongst themselves. In one regard, the Executive Director’s six-year term is staggered vis-a-vis the four-year term of the originally appointing Governor, and the same concerns prompting the fixed, staggered rule seem to be equally present when the transcending of terms is between a single-appointee position and the Governor. . Although this Court declines to extend the fixed, staggered rule to the circumstances of this case in a wholesale manner, we view the fact that the Executive Director’s term exceeds the Governor’s term as indicative of legislative intent that the Executive Director not be removed except for cause. Consistent with our Supreme Court’s rationale in Watson and Bowers, we focus on the net effect of allowing the Governor’s removal of the Executive Director without cause and find it would nullify the legislature’s intent in creating terms which overlap.
Stated differently, section 1310(b) of the RTKL implies that the first term is mandatory and that the second term is permissive, at the discretion of the Governor, and the only time in which the Governor can decide whether to remove an Executive Director. Cf. Meade v. City of Philadelphia, 65 A.3d 1031, 1037-38 (Pa.Cmwlth.2013) (en banc). This interpretation is corroborated by the remarks of a representative of the General Assembly during floor debate. See Pa. Legislative Journal, Session of 2007, 191st of the General Assembly, No. 112, at 2582 (Dec. 10, 2007) (Representative Josh Shapiro) (“[A]s it relates to the executive director and what we have tried to do to accomplish greater independence for the executive director is to vest that executive director with a six-year term, a term that does not necessarily run concurrent with one Governor or another, to create more independence for that office ....”) (emphasis added).
Accordingly, this Court determines that an Executive Director’s fixed term of six years, combined with other compelling factor^) reflecting the legislature’s intent to curtail the Governor’s removal power, supports the conclusion that the Executive Director can only be removed for cause.
However, our review does not end here. When the legislature creates an independent administrative agency that exercises quasi-judicial functions, this is a strong indicator that the legislature intended that the agency’s members be removed only for cause. The rationale for inferring such intent is that if an agency is sufficiently independent from the executive, the executive should not have control or coercive influence, direct or indirect, over the agency when the agency performs the quasi-judicial function of adjudicating the statutory rights of parties in accordance with legislative standards. See Bowers, 167 A.2d at 484 (considering the Pennsylvania Labor Relations Board, its administrative expertise, and the nature of its adjudicatory functions and concluding: “It is plain enough that, in the public interest, such Board members were not to be made amenable to political influence or discipline in the discharge of their official duties.”); Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 198 A. 635, 636 (1938) (stating that the power of removal is usually correlative with the power of appointment, “except in those cases where the public welfare requires that an official charged with important governmental functions should be protected against interference on the part of the executive”). See also section 102 of the Judicial Code, 42 Pa.C.S. § 102 (defining “Independent Agency” as the “Boards, commissions, authorities and other agencies and officers of the Commonwealth government which are not subject to the policy, supervision, and control of the Governor” and stating that an “Executive Agency” is not an “independent agency.”).
Although this Court can act as the fact-finder in appeals from the OOR, the RTKL presumes that OOR appeals officers will determine, in the first instance and as a matter of fact, whether a document should be disclosed; the OOR has wide discretion with respect to the procedure for deciding appeals; and an OOR appeals officer has discretion to hold a hearing, can accept and assess evidence
While the OOR’s determinations may be appealed to this Court for de novo review, this does not in any way undermine or alter the basic character of the OOR and its status as a quasi-judicial tribunal. See Chisholm v. Defense Logistics Agency, 656 F.2d 42, 47 (3d Cir.1981) (“[W]hen an administrative agency acts as a quasi-judicial body, it fulfills the same function as a court, seeking to make a determination which is consistent with the public interest as reflected in the governing statute.”). See also Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791, 793 (1977) (“When the Legislature has seen fit to enact a pervasive regulatory scheme and to establish a governmental agency possessing expertise ... to administer that statutory scheme, a court should be reluctant to interfere in those matters and disputes which were intended by the Legislature to be considered, at least initially, by the administrative agency.”). Indeed, without any involvement by a court of common pleas or this Court, the OOR’s determinations can obtain final and binding status.
As part of his duties, the Executive Director is vested with some administrative responsibilities, such as general staffing, the appointment of appeals officers, and expending appropriated funds, 65 P.S. §§ 67.1310(d), (f), but these are incidental to the Executive Director’s express and foremost “duties” to “ensure that the duties of the [OOR] are carried out” and to “monitor cases appealed to the [OOR].” 65 P.S. § 67.1310(e). While there may be varying dictionary definitions for the term “monitor;” the most common meaning is “to observe critically; oversee; supervise,” Random House Dictionary of the English Language, 862 (College ed.1969), and a “quasi-judicial duty” is “[a] discretionary judicial duty that a nonjudicial officer may perform under some circumstances.” Black’s Law Dictionary, 581 (9th ed.2009).
Consequently, the Executive Director has the responsibility and power to exercise a quasi-judicial duty, which may also be reflected in a gate-keeping manner, and the Executive Director is part and parcel of the OOR’s quasi-judicial mandate. In conferring these statutory obligations, and creating an agency that is structurally and functionally independent of the executive branch (discussed below), the legislature expressed the intent to create an administrative body that is “not to be made amenable to political influence or discipline in the discharge of their official duties.” Bowers, 167 A.2d at 484. See Schofield, 198 A. at 636. In order for the OOR and the Executive Director to fulfill their quasi-judicial duties in the fairest and most impartial manner possible, they must be viewed as belonging outside the sphere of executive branch control and the influence of the Governor’s removal power except for cause.
This conclusion is further underscored by the fact that the legislature intended to immunize the Executive Director from party politics and essentially converted the position of the Executive Director into a non-partisan office by barring the Executive Director from seeking political office
Structural and Functional Independence
In addition, the OOR and the Executive Director are structurally and functionally independent of the executive department.
Article IV, Section 1 of the Pennsylvania Constitution states:
The Executive Department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer and Superintendent of Public Instruction and such other officers as the General Assembly may from time to time prescribe.
Pa. Const, art. IV, § 1.
Section 201(a) of the Administrative Code of 1929 (Administrative Code) declares that “the executive and administrative work of this Commonwealth shall be performed by the Executive Department, consisting of the Governor,” and, among other entities, the DCED. Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 61(a).
As Governor Wolf correctly points out, the OOR is housed as a subagency within the DCED and the legislature did not expressly designate the OOR an “independent agency” within the RTKL. However,
Except as otherwise provided in this act, departmental administrative bodies, boards, and commissions, -within the several administrative departments, shall exercise their powers and perform their duties independently of the heads or any other officers of the respective administrative departments with which they are connected ....
71 P.S. § 183 (emphasis added).
Pursuant to this statutory provision, the OOR and the Executive Director, collectively a quasi-judicial “administrative body,” perform their functions independently of the DCED. See United States Steel Corp. v. Department of Environmental Resources, 65 Pa.Cmwlth. 103, 442 A.2d 7, 8-9 (1982) (concluding that under section 503 of the Administrative Code, the Environmental Quality Board, a sub-agency, is an independent body separate from the Department of Environmental Resources, the larger agency, when it acts pursuant to its statutory powers and duties to adopt and promulgate regulations). Since the OOR and the Executive Director operate independently of the DCED, and the DCED is the only tie that the OOR has to the executive branch, a fortiori, the OOR must also be independent of the executive branch. Therefore, by virtue of section 503 of the Administrative Code, the OOR is an independent agency that is structurally located outside of the executive department.
The Executive Director also receives from the legislature a direct appropriation to fund the OOR and has the sole authority to manage this appropriation. 65 P.S. § 67.1310(f). Ultimately, the legislature’s method of funding the OOR further supports the view that the OOR is independent from the executive branch. Neither the Governor nor the DCED disburse monies to the OOR from their general funds, and, as a result, they are unable to influence the Executive Director and the OOR through the “power of the purse.” See Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L.Rev. 15, 30, 42-43 (2010) (concluding that one way to insulate an agency from the control of the executive is to “provide agencies with an independent funding source.”).
Moreover, neither the OOR nor the Executive Director performs quintessential executive duties or participates in policy making. The OOR is not a regulatory or enforcement regime in the sense that it implements binding regulations and/or prosecutes those who disobey the law. For example, in Department of Environmental Protection v. North American Refractories Co., 791 A.2d 461 (Pa.Cmwlth.2002), this Court determined that the Department of Environmental Protection (Department) and the Environmental Hearing Board (EHB) represent two different intra-agency branches of government. We stated that the “Department is the executive branch, assigned various duties to implement and enforce environmental statutes and regulations,” while, on the other hand, the “EHB is the judicial branch, empowered to hold hearings and issue adjudications on orders, permits, licenses or decisions of the Department.” Id. at 462. After noting that the EHB is “an independent quasi-judicial agency,” id, we concluded that:
[W]hen the legislature invests an actor [i.e., a governmental entity] with adjudicative authority only, courts may not infer that the legislature intended the adjudicative actor to use its authority to play a policy-making role. Rather, the more plausible inference is that the legislature intended to delegate the adjudicative actor the type of nonpolicy-*391 making adjudicatory powers typically exercised by a court in the agency-review context.
Id. at 465-66 (emphasis in original); accord Tire Jockey Service, Inc. v. Department of Environmental Protection, 591 Pa. 73, 915 A.2d 1165, 1187 (2007). Accordingly, this Court in North American Refractories Co. determined that because the EHB was solely an adjudicatory body, our legislature never intended to grant the EHB the power to assume an executive or policy-making role.
Our decision in North American Refractories Co. illustrates,the demarcation between executive agencies and their functional purpose to regulate and/or execute the law or engage in policy making versus an independent quasi-judicial agency and its functional purpose to apply the law as written and to adjudicate matters. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) (“[Ejxecutive branch agencies exist to carry out functions committed to the executive power, that is, executing or administering the law.”); Cutler v. State Civil Service Commission (Office of Administration), 924 A.2d 706, 711-12 (Pa.Cmwlth.2007) (“The Governor’s power is to execute the laws and not to create or interpret them.”) (citation omitted).
The OOR is inherently independent from the Executive branch; it is not authorized to perform any traditional executive functions; it does not set policy; and it has no role or statutory authority to operate as a regulatory or enforcement regime. Rather, the OOR’s function lies outside the realm of the executive department, and the OOR’s predominate purpose is to serve as a quasi-judicial, independent agency that is “not subject to the policy supervision and control of the Governor.” 42 Pa.C.S. § 102.
OOR and the Governor’s Office
An additional significant factor in bolstering this conclusion is that the OOR adjudicates disputes involving the Governor and the Executive Department in general. Section 1310(a)(5) of the RTKL states that the OOR shall “[a]ssign appeals officers to review appeals of decisions' by Commonwealth agencies or local agencies.” 65 P.S. § 67.1310(a)(5). In turn, section 102 of the RTKL defines “Commonwealth agencies” as:
“Commonwealth agency.” Any of the following:
(1) Any office, department, authority, board, multistate agency or commis*392 sion of the executive branch; an independent agency; and a State-affiliated entity. The term includes:
(i) The Governor’s Office.
(ii) The Office of Attorney General, the Department of the Auditor General and the Treasury Department.
(iii) An organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function.
65 P.S. § 67.102 (emphasis added).
Naturally, the fact that the OOR is specifically obligated to decide appeals from the Governor’s Office and various other executive agencies raises serious concerns and may create conflicting positions and adversarial relationships between the OOR and the executive branch. For instance, if a Governor could remove an Executive Director of the OOR at will, the Governor could conceivably install an Executive Director who ensures that the OOR would render decisions favorable to the Governor’s office and the executive branch in general. Although this is an abstract possibility, if exercised, the Governor could effectively frustrate the very purpose of the RTKL to promote government transparency and open access to public documents. See SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029, 1042 (2012) (stating that the objective of the RTKL “is to empower citizens by affording them access to information concerning the activities of their government.”).
An example of the adversary nature between the Governor and the OOR could be found in Office of Governor v. Donahue. In that case, the Office of the Governor commenced, and successfully litigated, a declaratory judgment action against the OOR with respect to the OOR’s interpretation and application of a provision of the RTKL. See Donahue, 98 A.3d at 1234 (“Here, OOR, an administrative agency, proffered an interpretation of Section 901 of the RTKL in its Donahue decision that immediately and detrimentally impacted [the Office of the Governor].”).
In Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa.Cmwlth.2013) (en banc), this Court affirmed the OOR’s determination requiring the Governor to disclose his calendar schedule in un-redacted form, finding that the Office of the Governor made an insufficient evidentiary showing.
These examples highlight the basis' for the legislature’s intent that the OOR and the Executive Director be completely independent from the executive branch and the Governor’s removal power, except for cause. Indeed, in discerning legislative intent, we do not presume results which would seem absurd. See section 1922(1) of the Statutory Construction Act, 1 Pa.C.S. § 1922(1). To presume theoretically that the legislature would permit a governor to exercise coercive control over the inner-workings and dispositional tendencies of the OOR, and potentially deny to the public access to documents
By enacting the RTKL, the legislature created a scheme whereby public citizens have the right to request documents from the Governor’s office and the executive branch; and the OOR is tasked with determining, in the first instance, whether the documents are properly withheld. In this regard, the OOR is genuinely a unique administrative agency — it is not a typical administrative agency in the sense that it is a regulatory and/or enforcement regime that deals, on a policy level, with general public interest such as child welfare, entitlements, the environment, the cost of utilities, etc. Rather, the OOR is specifically obligated to assume the sensitive and delicate task of adjudicating the disclosure or non-disclosure of government documents, and the legislature intended the RTKL to provide independence to accomplish this function “to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions.” Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa.Cmwlth.2014).
Venesky, Schluraff, and Naef
In his brief, Governor Wolf places heavy rebanee on our previous decision in Vene-sky as to the independence of the Game Commission. Section 201(a) of the Administrative Code expressly states that the Game Commission, although recognized as “an independent administrative board,” is nonetheless a member of the “Executive Department.” Section 201(a) of the Code, 71 P.S. § 61(a).
Perhaps more importantly, the Game Commission in Venesky did not exercise quasi-judicial or adjudicatory responsibilities that resolve the disputes between parties. Rather, the Game Commission is a licensing and enforcement agency. See, e.g., Sections 321, 925, and 2741 of the Game and Wildlife Code, 34 Pa.C.S. § 321 (stating that the duties and powers of the Game Commission pertain to the administration and enforcement of the Game and Wildlife Code); 34 Pa.C.S. § 925 (stating that in prosecuting violations of the Game and Wildlife Code, the district justices shall have jurisdiction to determine guilt); 34 Pa.C.S. § 2741 (governing the denial or revocation of hunting or furtaking hcens-es); Unified Sportsmen of Pennsylvania ex rel. their Members v. Pennsylvania Game Commission, 18 A.3d 373, 374 (Pa.Cmwlth.2011) (concluding that “the [Game] Commission is the executive agency
Here, unlike the Game Commission, the OOR is not expressly situated as an administrative board in the executive department, nor does it exercise typical functions thereof. Moreover, the OOR performs quasi-judicial functions, which must be exercised independently and even contrary to the interests of the Governor. These facts clearly distinguish this case from Venesky.
The Supreme Court’s decisions in Schlu-raff and Naef are also relied upon by Governor Wolf and are readily distinguishable. At best, those cases applied the fixed-term rule, see supra 382 n. 7, without considering any of the additional factors that this Court has discussed and applied above. In addition, these cases are factually inapposite.
In Schluraff, apparently a plurality opinion, the state legislature enacted a law creating the Board for the Assessment and Revision of Taxes in third-class counties, directing the County Commissioners to appoint three members to the Board, and stating that all of the members were “to serve for terms of four years.” 208 A.2d at 241 n. 2. According to the narrowest reading of the lead opinion and concurrence in Schluraff the state legislature, by designating uniform four-year terms, did not intend to prohibit the County Commissioners from removing the Board members at their pleasure.
The lead opinion and concurrence in Schluraff did not address or discuss the apparent quasi-judicial nature of the Board for the Assessment and Revisions of Taxes. Nonetheless, our Supreme Court held in Suermann v. Hadley, 327 Pa. 190, 193 A. 645 (1937), that the Board for the Assessment and Revision of Taxes is solely located within the executive branch and has purely executive duties. More precisely, the Supreme Court determined that the Board for the Assessment and Revisions of Taxes acts:
in execution of the tax law and to permit the levy of the tax, a base on which it is to be applied is found by the assessing authorities in accordance with a standard fixed by the legislature. The finding of that base is purely an executive function delegated to a municipal agency [i.e., the Board for the Assessment and Revision of Taxes].
Id. at 652. In other words, the Board for the Assessment and Revisions of Taxes is merely part of the administrative apparatus responsible for the assessment and collection of taxes, which is an executive function connected with the execution and enforcement of the tax laws. Accord, e.g., In re Estate of Barker, 63 Ill.2d 113, 345 N.E.2d 484, 487 (1976) (“[T]he assessment of taxes is in its nature a nonjudicial function. One with the responsibility of assessing taxes is executing revenue laws enacted by the legislature, and this traditionally is a function of the executive branch of government.”); Norby Lumber Co. v. County of Madera, 202 Cal.App.3d 1352, 1362, 249 Cal.Rptr. 646 (5th Dist.1988) (“The assessment of property for the purpose of taxation is a function of the executive branch of the government”).
In this case, the OOR falls outside the scope of the executive branch, structurally and functionally. The OOR also exercises its quasi-judicial duties not to execute the law of levying taxes, but to interpret and apply the statutory rights conferred in the RTKL. As such, the differences between the Board of Revisions in Schluraff (an executive agency performing executive duties) and the OOR (an independent agency performing non-execu
In Naef, the Supreme Court addressed whether a city council could remove a city solicitor and assistant city solicitors who were appointed to a four-year term. Ultimately, the resolution of Naef rested upon express language in a statute granting the city council the power of dismissal and the fact that the solicitors are “an important confidant” of the city council in the administration of the city’s business. 227 A.2d at 890-91.
Unlike the situation in Naef, the legislature in this case did not indicate that the Governor has the power to remove the Executive Director of the OOR at his pleasure; instead, as explained above, the legislature expressed its intent in the RTKL to require the Governor to remove the Executive Director for cause only.
The city solicitors in Naef were directly employed by the appointing authority, the city council, which, at that time, typically operated under a rubric where the executive and legislative branches were combined. See City Council of the City of Reading v. Eppihimer, 835 A.2d 883, 893 (Pa.Cmwlth.2003) (noting “the many forms of local government in which the legislative and executive functions are merged” and recognizing that “the City of Reading ... had a Commission form of government in which the executive and legislative functions were combined in the City Council”). Given the nature of their duties, the city solicitors were close advisors to the council and “[t]o hold that one who is unacceptable must be retained in such a position would lead to a seriously disturbed municipal situation.” Naef, 227 A.2d at 890-91. See Ness v. Marshall, 660 F.2d 517, 522 (3d Cir.1981).
Again, in this case the OOR is structurally and functionally located outside of the branch of the appointing authority, the Executive Director is not a close confidant of or advisor to the Governor, and the Executive Director’s duties do not include effectuating the Governor’s policies. These factual dissimilarities further differentiate this case from Naef and render that case inapplicable.
Conclusion
Having reviewed all of the significant factors in discerning legislative intent, we find the following: the Executive Director serves a fixed term that exceeds the appointing Governor’s term; statutory language indicates that the term is mandatory as opposed to directive; the OOR’s predominate statutory purpose is to perform quasi-judicial, adjudicatory functions in which the Executive Director is directly involved; the OOR is structurally and functionally independent from the executive department; the OOR does not perform any quintessential executive duties; and most significantly, the OOR adjudicates disputes concerning the potential release of governmental documents in the possession of the Governor (which clearly reflects the legislature’s intent that the Executive Director not be subject to the control of the Governor) and the executive branch in general. Based on all these factors, we find clear legislative intent that the Executive Director of OOR, an independent body, is insulated from the Governor’s power to remove appointees at will.
Relief
Having granted summary relief in favor of Arneson, we now turn to his requests for relief.
First, the Court grants Arneson’s request for a declaration that Governor Wolfs dismissal exceeded the Governor’s removal power under Article VI, Section 7 of the Pennsylvania Constitution. See Mid-Centre County Authority v. Township of Boggs, 34 Pa.Cmwlth. 494, 384 A.2d 1008, 1011 (1978) (stating that “declaratory relief may be obtained to determine the validity and effect of the acts of public officials”).
Second, the Court grants Arneson’s request for a writ of mandamus. In doing so, we order that Arneson be restored to the position of Executive Director and that he
Third, Arneson’s request for a permanent injunction enjoining Governor Wolf from attempting to remove him in the future without cause is denied as unnecessary relief. Any and all other requests for relief by Arneson are denied on the basis that such relief is also unnecessary.
Finally, as a separate matter, the OOR has filed a cross-motion for summary relief in the nature of demurrer, averring that it should be dismissed from the case as a party-defendant because Arneson has not filed a claim against it for which relief can be granted and that the OOR is not a necessary party to the litigation. We summarily deny the OOR’s motion because the OOR is a necessary party to this proceeding and is obligated, per our order, to restore Arneson to his former position and provide backpay if due. Watson, 125 A.2d at 359.
Judge BERNARD L. McGINLEY dissents.
ORDER
AND NOW, this 10th day of June, 2015, the motion for summary relief filed by Erik Arneson, individually and in his official capacity as Executive Director of the Office of Open Records (OOR), and the Senate Majority Caucus (together, Arne-son) is GRANTED. The motion for summary relief filed by Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania, the Department of Community and Economic Development (DCED), and the OOR (together, Governor Wolf) is DENIED. The OOR’s motion for summary relief in the nature of a demurrer is also DENIED.
The Court DECREES and ORDERS the following:
1. It is hereby declared that Governor Wolf exceeded his removal power under Article VI, Section 7 of the Pennsylvania Constitution and dismissed Arneson from his position of Executive Director without the authority of law.
2. Arneson is ordered to be restored to the position of Executive Director and shall receive any backpay and benefits owing, discounting any offsets to reflect actual loss of income.
3. Arneson’s request for a permanent injunction and any other relief is denied.
. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
. Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§ 66.1-66.9, repealed by the Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
. In the letter, Governor Wolf said that he has,
serious concerns regarding [Arneson’s] recent appointment to the OOR Executive Director position by former Governor Corbett. The process leading to [Arneson’s] appointment lacked transparency, was of questionable timing and appears to have been rushed through. It is precisely this style of governing that causes Pennsylvania's citizens to become skeptical and lose trust that their state government is acting in their best interest.
(Stipulation of Facts, Ex. D.)
Governor Wolf also thanked Arneson for his years of public service and stated that for the position of Executive Director, his administration "will engage in a comprehensive and fully transparent executive search' process that is open to all interested applicants.” (Id.)
. The Majority Caucus of the Pennsylvania House of Representatives (Majority Caucus) and the Pennsylvania Newsmedia Association (Newsmedia Association) have filed amicus curiae, briefs in support of Arneson. The arguments, in these briefs parallel those made by Arneson in his brief. More specifically, the Majority Caucus and the Newsmedia Association detail their interests in this case and emphasize that the OOR was established as an independent office to ensure transparency in government.
. A special concurrence is where an author of a majority opinion writes separately as a single judge unconstrained by majority authorship and the majority’s rationale. See Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 633-34 & n. 1 (2012) (Saylor, J., concurring specially).
. Although not raised by the parties, the Dissent repeatedly references Article IV, Section 8(a) of the Pennsylvania Constitution, Pa. Const, art. IV, § 8(a), to suggest that an Exec
. In Schluraff v. Rzymek, 417 Pa. 144, 208 A.2d 239 (1965), our Supreme Court officially adopted, post-Watson, what is known as the "fixed term rule.” In that case, the court concluded that where an officer was appointed to a Board "for a fixed term expiring simultaneously with the terms of the other appointees to the Board [this] does not come within the staggered term rule.” 208 A.2d at 239 (emphasis in original).
Based upon our research, the Pennsylvania Supreme Court, in its post-Watson cases, has applied the "fixed term rule” only to multi-member boards or commissions and has never extended the rule to a single-person office, much less in a situation where the term of office exceeded the appointing Governor's term. See Philadelphia v. Sacks, 418 Pa. 193, 210 A.2d 279, 279-80 (1965) (fixed term rule, Registration Commission, each member to serve a four-year term); Schluraff, 208 A.2d at 239 (fixed term rule, Board for the Assessment and Revision of Taxes, each member to serve a four-yéar term). See also Naef, 227 A.2d at 890-91 (discussing the "fixed term rule” in passing and noting that the city solicitors, who served four-year terms, were not appointed to a board or commission and that staggered terms were not involved; the court resolved the case on other grounds). Likewise, the Supreme Court has never extended the “fixed, staggered rule” to a single-person office. Therefore, this Court determines which rule is most analogous given the cir
. The Pennsylvania Labor Relations Act, June 1, 1937, P.L. 1168, No. 294, as amended, 43 P.S. §§ 211.1-211.13.
. The Dissent believes that McSorley v. Pennsylvania Turnpike Commission, 390 Pa. 81,
. The Statutory Construction Act specifically authorizes consideration of legislative history when construction of a statute, beyond its plain language, is required. See 1 Pa.C.S. § 1921(c)(7). Although lawmakers’ statements during debate are generally not dispos-itive of legislative intent, they may properly be considered as part of the contemporaneous legislative history. Board of Revision of Taxes v. City of Philadelphia, 607 Pa. 104, 4 A.3d 610, 624 n. 10 (2010); Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290, 1294 n. 4 (1992).
. In pertinent part, section 1310 of the RTKL, creating the office of the Executive Director, makes clear the intended independence of this public officer:
(c) Limitation. — The executive director shall not seek election nor accept appointment to any political office during his tenure as executive director and for one year thereafter.
(d) Staffing. — The executive director shall appoint attorneys to act as appeals officers and additional clerical, technical and professional staff as may be appropriate and may contract for additional services as necessary for the performance of the executive director’s duties. The compensation of attorneys and other staff shall be set by the Executive Board. The appointment of attorneys shall not be subject to the act of October 15, 1980 (P.L.950, No. 164), known as the Commonwealth Attorneys Act.
(e) Duties. — The executive director shall ensure that the duties of the Office of Open Records are carried out and shall monitor cases appealed to the Office of Open Records.
(f) Appropriation. — The appropriation for the office shall be in a separate line item and shall be under the jurisdiction of the executive director.
Section 1310(c)-(f) of the RTKL, 65 P.S. §§ 67.1310(c)-(f) (emphasis supplied).
The RTKL further lists the functions of the OOR as follows:
(1) Provide information relating to the implementation and enforcement of this act.
(2) Issue advisory opinions to agencies and requesters.
(3) Provide annual training courses to agencies, public officials and public employees on this act and 65 Pa.C.S. Ch. 7 (relating to open meetings).
(4) Provide annual, regional training courses to local agencies, public officials and public employees.
(5) Assign appeals officers to review appeals of decisions by Commonwealth agencies or local agencies, except as provided in section 503(d), filed under section 1101 and issue orders and opinions. The office shall employ or contract with attorneys to serve as appeals officers to review appeals and, if necessary, to hold hearings on a regional basis under this act. Each appeals officer must comply with all of the following:
(i) Complete a training course provided by the Office of Open Records prior to acting as an appeals officer.
*386 (ii) If a hearing is necessary, hold hearings regionally as necessary to ensure access to the remedies provided by this act.
(iii) Comply with the procedures under section 1102(b).
(6) Establish an informal mediation program to resolve disputes under this act.
(7) Establish an Internet website with information relating to this act, including information on fees, advisory opinions and decisions and the name and address of all open records officers in this Commonwealth.
(8) Conduct a biannual review of fees charged under this act.
(9) Annually report on its activities and findings to the Governor and the General Assembly. The report shall be posted and maintained on the Internet website established under paragraph (7).
65 P.S. § 67.1310(a).
Under the RTKL, an OOR appeals officer is required to "[rjeview all information filed relating to the request.” Section 1102(a)(2) of the RTKL, 65 P.S, § 67.1102(a)(2). The appeals officer "may hold a hearing” and "may admit into evidence testimony ... and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute.” Id. In addition, the OOR can "adopt procedures relating to appeals.” Section 1102(b)(2) of the RTKL, 65 P.S. § 67.1102(b)(2). To date, the OOR has not done so, and "[i]n the absence of a regulation, policy or procedure governing appeals ... the appeals officer shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the dispute.” Section 1102(b)(3) of the RTKL, 65 P.S. § 67.1102(b)(3). Finally, an appeals officer must issue a final determination on the matter within 30 days and provide a written explanation of the reason for the decision. Section 1101(b)(1), (3) of the RTKL, 65 P.S. § 67.1101(b)(1), (3).
. In Center Township, this Court discussed in detail the duties of the OOR and concluded that the OOR "is a quasi-judicial tribunal.” Id. at 363-64. Our Supreme Court, too, has denoted the OOR as such. Donahue, 98 A.3d at 1233, The Dissenting author, who joined the majority in Center Township, now asserts that "the OOR is not a quasi-judicial agency.” (Dissent op. at 407).
. In Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) (unanimous), and Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (unanimous), the United States Supreme Court concluded, at the very least, that where Congress creates an agency to perform "quasi-judiciar’ tasks, and fixed the term for the agency’s members, the President could not remove the members absent cause.
Although grounded in statutory construction, an essential basis for the court’s conclusions in Humphrey's and Wiener was the separation of powers doctrine. Pievsky v. Ridge, 921 F.Supp. 1335, 1340 (M.D.Pa.1996) aff'd 98 F.3d 730 (3d Cir.1996). See also Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1546-47 (9th Cir.1993); Borders v. Reagan, 518 F.Supp. 250, 263 (D.D.C.1981). In this regard, the court in Humphrey's and Wiener focused on the character of the office and concluded that where Congress creates a quasi-judicial agency, the agency "cannot in any proper sense be characterized as an arm or an eye of the executive.” Humphrey’s, 295 U.S. at 628, 55 S.Ct. 869.
In Bowers, then Chief Justice Jones of the Pennsylvania Supreme Court, writing for himself only, articulated the view that the Governor could not remove, without cause, a member of the Pennsylvania Labor Relations Board because this would infringe upon the separation of powers doctrine:
It is implicit in the American form of government, as ordained by the Constitution of both the United States and Pennsylvania, that the government consist of three co-ordinate branches, legislative, executive and judicial, and that one branch should not impinge on the province of another. Any interference by a member of the executive department of government with the tenure of an incumbent member of a quasi-judicial board or commission would plainly offend against this basic constitutional concept. The Supreme Court has twice declared that the President of the United States lacks power to remove without cause an appointed member of an administrative agency which possesses and exercises judicial powers: Wiener v. United States, 357 U.S. 349, 352, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958); Humphrey’s Executor v. United States, 295 U.S. 602, 627-628, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). For the same reasons, the Governor of Pennsylvania may not remove without cause an appointee to an administrative board or commission which, as authorized by law, is invested with judicial powers and duties.
Bowers, 167 A.2d at 483-85 (Jones, C.J., specially concurring). Later, in Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963), a majority of the Pennsylvania Supreme Court arguably adopted Humphrey’s rationale.
For purpose of this appeal, this Court need not formally adopt, as a matter of state constitutional law, Humphrey’s and Wiener’s ultimate holdings. We note, however, that for all intents and purposes, the Governor's removal power under Article VI, Section 7 of the Pennsylvania Constitution parallels the President’s removal power under the United States Constitution. This is because both the Governor and the President have the authority to remove those whom they appoint and both the Pennsylvania legislature and Congress can limit that removal power by enacting legislation expressing the intent to do so. See Pievsky, 921 F.Supp. at 1339-40 (noting that federal law and Pennsylvania law mimic each other in that both adhere to the following two principles: (1) that "in the face of statutory silence, the power of removal presumptively is incident to the power of appointment,” and (2) the federal and state legislatures can by statute limit the executive branch’s authority to remove officials at will). Given that the two constitutions are functionally indistinguishable, Humphrey’s and Wiener admittedly “offer support for the majority’s position.” (Dissent op. at 408 n. 8.)
. The Dissent’s attempt to analogize the political limitation provision of section 1310(c) of the RTKL with section 1103 of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103, is far from apt. (Dissent op. at 408.) There is a remarkable difference between an outright ban on the constitutional right to run for public office and a restriction that essentially states that, for a limited duration, a former public employee cannot work on private sector matters that he worked on while he was a public employee.
. This provision provides in its entirety: "The executive and administrative work of this Commonwealth shall be performed by the Executive Department, consisting of the Governor, Lieutenant Governor, Secretary of the Commonwealth, Attorney General, Auditor General, State Treasurer, and Secretary of Education; by the Executive Board, and the Pennsylvania State Police; by the following administrative departments: Department of State, Office of Attorney General, Department of Corrections, Department of the Auditor General, Treasury Department, Department of Education, Department of Military Affairs, Insurance Department, Department of Banking, Department of Agriculture, Department of Transportation, Department of Health, Department of Drug and Alcohol Programs, Department of Labor and Industry, Department of Aging, Department of Public Welfare, Department of General Services, Department of Revenue, Department of Community and Economic Development, Department of Environmental Protection and Department of Conservation and Natural Resources; and by the following independent administrative boards and commissions: Pennsylvania Game Commission, Pennsylvania Fish and Boat Commission, State Civil Service Commission, Pennsylvania Public Utility Commission and the Pennsylvania Securities Commission.” 71 P.S. § 61(a) (emphasis added).
. This is in stark contrast to those policy-making, cabinet-level, executive positions that exercise a quasi-judicial role secondary (or "on the side”) to their primary duty to directly serve the Governor and implement the Governor’s agenda. We have no quarrel with the Dissent’s contention that, as some of the Governor's closest advisors, the Secretary of the Department of Human Services and the Insurance Commissioner can be removed without cause. (Dissent op. at 407). Notably, our opinion leaves ample room for a different result when it comes to agency heads/members that are located squarely within the executive branch and exercise executive duties even if some of those duties are quasi-judicial in nature.
. In concluding that the OOR and the Executive Director are structurally and functionally an independent agency, and considering this as a factor in the present circumstances, our decision is entirely consistent with Vene-sky. Indeed, the Venesky court never held that agency independence was an inappropriate factor, but, instead, accepted it as legitimate indicia of legislative intent to be balanced against other factors.
. "However, judicial agencies, legislative agencies, the Attorney General, State Treasur- . ■ er, and Auditor General (all Commonwealth agencies); and the district attorneys of each county (all local agencies), shall designate their own appeals, officers to hear appeals from the respective agency's determinations. [Section 503(a)-(d) of the RTKL,] 65 P.S. § 67.503(a)-(d). Thus, appeals from final determinations of these ... agencies are not heard by the OOR.” Bowling, 75 A.3d at 457. In terms of state-level agencies, the legislature, by exempting judicial and legislative agencies from the jurisdiction of the OOR, Bowling, 75 A.3d at 457, vested the OOR with the primary responsibility of adjudicating whether records from the executive branch should be disclosed to the public.
. The Dissent dismisses this potential for abuse on the ground that a governor would never take such a "risk” and an Executive Director would do the same work regardless of whether he could be dismissed with or without cause. (Dissent op. at 410.) However, this assumption is beside the point and ignores the fact that it is the principle which is at stake: "For it 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.” Humphrey’s Executor, 295 U.S. at 629, 55 S.Ct. 869. The Dissent is also worried that the Executive Director “is virtually untouchable for six years and thereby insulated frbm accountability to elected officials....” (Dissent op. at 413.) “All public officers are, of course, removable for cause.” Bowers, 167 A.2d at 484.
. In pertinent part, this provision provides: “The executive and administrative work of this Commonwealth shall be performed by the Executive Department, consisting of the Governor ... and by the following independent administrative boards and commissions: Pennsylvania Game Commission ....” 71 P.S. § 61(a) (emphasis added).
. The Dissent proclaims that the Majority succumbs to folklore and is guided "by the sirens call,” (Dissent op. at 397), but there is nothing mythical about our decision or the case law that sustains it. After an overview of the history of the Pennsylvania Constitution, along with a provision dealing with Senate approval. of certain public officers, see Pa. Const, art. IV, § 8(a), the Dissent concedes that the issue before the Court is one of legislative intent, as our Supreme Court has consistently held since 1937. (Dissent op. at 398,
However, this Court and the Supreme Court have already recognized that although the legislature has the general authority to limit the removal power, the legislature cannot restrict the Governor’s removal power when it comes to executive officials who are clearly under the influence and control of the Governor because this would violate the separation of powers doctrine. See Venesky, 789 A.2d at 865 (referencing Pievsky, 98 F.3d at 737). See also Morrison v. Olson, 487 U.S. 654, 690-91, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988); Commonwealth ex rel. Attorney General v. Benn, 284 Pa. 421, 131 A. 253, 259 (1925). As a result, a governor can dismiss, at-will, a plethora of gubernatorial appointees within the executive branch in order to effectuate his/her political policies. The fact of the matter, not disputed by the Dissent, is that the OOR and its Executive Director perform no traditional executive functions and their duties do not involve the prosecutorial enforcement of the laws. Consequently, a governor’s power to see that the laws be faithfully executed is not implicated in this case; the Dissent cites no authority to say otherwise; and upon our review, we can find none. Contrary to the Dissent’s suggestion, our decision is narrow in focus and does not decide the fate of every official in an administrative agency in this Commonwealth appointed by the Governor. Instead, our decision only deals with the OOR and the Executive Director of the OOR.
The Dissent also postulates a contrary rule of law that would effectively render the Governor’s removal power limitless. The Dissent would permit a newly-elected Governor to erase, without any reason, countless administrative positions that are not subject to the Governor’s control and need not follow the Governor’s polices. Despite the Governor having no practical basis or incentive to remove these positions, the Dissent would sanction termination at-will based upon the sole fact that the Governor has the "supreme executive power." (Dissent op. at 397, 410-11.) However, as a matter of constitutional law, the reality is that the executive branch is not infinite and there is a line of demarcation where an agency does not exercise purely executive functions, and, instead, exercises the functions of an agency independent from that branch. It is at this point that the legislature can provide restrictions on a governor’s removal power, whether explicitly or implicitly. This reflects the proper functioning of our separations of powers doctrine and the constitutional concept of checks and balances. Ultimately, the Dissent’s position would allow a governor to exercise a removal power contrary to legislative intent, by vesting a governor with the authority to undermine the entire purpose of the RTKL and dismantle that statute’s notion that government should be transparent.
We find this to be untenable.