Ousted Open-Records Chief Sues Governor, Wants Job Back

By Andrew Staub | PA Independent

As snow flurries fell across the state capital Monday, Erik Arneson donned a Green Bay Packers parka and knit hat and went searching for a legal locksmith to get him back into his office.

Arneson was left out in the cold — literally and figuratively — after Gov. Tom Wolf removed him Thursday as executive director of the Office of Open Records. Now, he and state Senate Republicans are suing to get his job back.

“The message that this sends to the governor is that the office is independent, it needs to be independent,” said Arneson, whose complaint alleges that Wolf violated the state’s Right-to-Know Law. “It is simply impossible to envision any executive director of this office being impartial if they have to live in constant worry that the governor could fire them for any reason at all.”

That’s exactly what happened to Arneson last week. The new governor, a Democrat, took issue that his Republican predecessor, former Gov. Tom Corbett, appointed Arneson to the post Jan. 9, less than two weeks before Wolf was set to take office.

Corbett had the authority to name a replacement after the former executive director, Terry Mutchler, abruptly resigned and took a private-sector job. But Wolf described the quickly falling dominoes as an affront to transparency and removed Arneson while also recalling other last-minute Corbett nominations.

Arneson, a longtime aide for state Senate Republicans before landing the open-records job, reported to work Friday anyway, but found himself locked out of the executive director’s office by Monday. Wolf also cut off his salary and benefits.

Now, a team of attorneys working for the Senate GOP and Arneson is trying to return him to the job.

Wolf said in a statement that the lawsuit “does nothing to alter my conviction” and expressed concern that Arneson had demoted an OOR staffer in favor of a Corbett official.

“By removing Mr. Arneson, I am standing up against an effort to destroy the integrity of the Office of Open Records and turn it into a political operation,” Wolf said. “These attempts to change the office, which exists to protect the public’s right to know, are the exact reasons people distrust their state government. When given the choice between protecting the public and playing politics, I will stand with the people of Pennsylvania.”

Arneson’s in his court filing painted Wolf’s decision as an “unlawful power grab” that “offends separation of powers principles in the Pennsylvania Constitution and violates the express statutory independence of the executive director.”

Wolf’s press secretary said last week the administration viewed the executive director as an “at-will” employee, meaning the person holding the job could be fired at any time. Arneson contends he had a fixed six-year term and could be removed only with cause.

Lawmakers created the Office of Open Records when they overhauled the Right-to-Know Law in 2008. But the statute does not address the removal of an executive director. It calls only for the governor to appoint an executive director “who shall serve for a term of six years” and who can serve a maximum of two terms.

The Pennsylvania NewsMedia Association said the law’s silence on removal “has led to a disappointing series of events” and urged lawmakers “to amend the law immediately to clarify any ambiguities regarding the appointment process and ensure that this does not happen again.”

Wolf’s administration, according to Arneson’s lawsuit, seems poised to rely on a 2002 Commonwealth Court ruling to support its stance.

That case, Venesky v. Ridge, centered on former Gov. Tom Ridge’s decision to remove a member of the Pennsylvania Board of Game Commissioners before his term ended. The court found that, “In the absence of statutory language governing the removal of an appointed office, the constitutional provision providing for removal at the pleasure of the appointed power prevails.”

Arneson’s lawsuit, though, indicated the same ruling also hinged upon the absence of language “from which we might infer legislative intent to limit the power of removal.”

A “constellation of factors taken together demonstrate a clear legislative intent to keep the Executive Director (i)ndependent from the whims of the Governor,” the lawsuit stated.

That included the fact a six-year term would outlast at least one term of a governor.

State Sen. Dominic Pileggi, the prime sponsor of the 2008 overhaul of the open-records law and Arneson’s former boss, also provided a sworn affidavit stating that the legislative intent was to ensure governors could not remove an executive director at their pleasure.

The Office of Open Records, which sometimes hears appeals from citizens denied records by the executive branch, could not act impartially if the governor could immediately fire an executive director, Pileggi said in the affidavit.

Arneson agreed.

“You would put the executive director in an impossible position if they need to think on every decision, ‘Well, is this going to be the one that makes the governor mad enough to fire me?’” Arneson said.

Not everyone was sympathetic to the notion Wolf’s action could chill the Office of Open Records.

That included state Rep. Greg Vitali, a Delaware County Democrat who last year appealed to the Office of Open Records after Corbett’s administration denied part of his request for information about plans for expanded natural gas drilling in state parks and forests.

Vitali said he was leery that, as the head of the Office of Open Records, Arneson might favor Senate Republicans because of his time working for the caucus. Like Wolf, Vitali also took exception to Corbett’s late appointment of Arneson.

“There’s an old saying in the law, that he who comes to the court of equity must do so with clean hands,” Vitali said. “And this was an eleventh-hour political appointment which was highly improper.  … For him (Arneson) to make those good-government arguments doesn’t get much sympathy from me.”