- Associated Press - Wednesday, February 4, 2015

HARRISBURG, Pa. (AP) - A power struggle over who should be running the Pennsylvania Office of Open Records will likely take more than a month to resolve after a court hearing Wednesday ended inconclusively.

Erik Arneson, named as the agency’s executive director last month in one of Gov. Tom Corbett’s final acts in office, and the Senate Republican caucus where he served for years as spokesman, have sued Gov. Tom Wolf for firing Arneson the day Wolf was sworn in as governor.

A two-hour hearing in front of a Commonwealth Court judge did not resolve the matter. It did, however, produce a deal in which both sides will prepare new court filings that lay out their arguments, and appear before a bank of judges on March 11.

The state attorney general’s office, which is representing Wolf, agreed not to challenge the Senate Republicans’ standing in the case and Arneson is not to participate in the office’s business, pending the outcome of the dispute.

After he was fired, Arneson’s email, computer and state ID were canceled but he has showed up for work at the Capitol complex. As part of the new agreement, he can work in the Senate, and Wolf’s lawyers will not use that to claim he has abandoned the Open Records director job.

In firing Arneson, the Democratic governor suggested Republican Corbett’s appointment of a new director just days before the Jan. 20 inauguration was too hasty and lacked transparency. Corbett appointed Arneson on Jan. 13 to succeed Terry Mutchler, who left the post for a job at a private law firm.

The hearing Wednesday focused on the request by Arneson and the Senate Republicans to have him restored as head of the office which, under a law that took effect in 2009, resolves disputes over public access to government records.

Commonwealth Court Judge Dan Pellegrini told the parties he considered the case to be about “how a democracy operates.”

“Who has the power under the constitution and under the law to remove?” Pellegrini said. “And that’s it.”

Pellegrini focused his attention during the hearing on how the Open Records office fits into state government. It is housed within the Department of Community and Economic Development but has its own budget, and much of its caseload concerns agencies under the governor’s control.

The judge said the state’s independent administrative agencies were described nearly a century ago as “the headless fourth branch of government.”

Matt Haverstick, representing the Senate Republicans, said there are signs the General Assembly intended the office to be independent, including the decision to give its executive director six-year terms.

“It wanted an agency and it wanted an entity that would be free of interference from any of the three branches of government,” Haverstick said.

The state constitution gives governors considerable - but not unlimited - authority to fire people who were appointed by the governor. The 2009 version of the Right-to-Know Law that created the Office of Open Records does not specify how or when the governor can fire the executive director.

Arneson, who worked for many years in the Republican caucus, acting as its spokesman and helping develop policy, was a main architect of the Right-to-Know Law revisions.

He testified Wednesday that the executive director can, and sometimes does, reverse proposed rulings by the agency’s hearing officers. Such decisions by the director would be considered judicial-type actions, which could be important in determining whether Wolf had the power to fire the appointee under rules laid out in prior court decisions.

With the dispute pending, Nathan Bylery, a lawyer who was one of the office’s first hires, is heading the agency.

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