HomeMy WebLinkAbout2012-6207
PENNSYLVANIA STATE
: IN THE COURT OF COMMON PLEAS OF
ASSOCIATION OF TOWNSHIP
: CUMBERLAND COUNTY, PENNSYLVANIA
SUPERVISORS,
:
Petitioner
:
:
v.
: APPEAL FROM FINAL DETERMINATION
: OF PENNSYLVANIA OFFICE OF
PENNSYLVANIA OFFICE OF
: RECORDS
OPEN RECORDS and
:
WALTER BRASCH,
:
Respondents
: No. 2012-6207 CIVIL ACTION - LAW
IN RE: PETITION FOR REVIEW OF THE PENNSYLVANIA STATE ASSOCIATION OF
TOWNSHIP SUPERVISORS FROM FINAL DETERMINATION OF
PENNSYLVANIA OFFICE OF OPEN RECORDS
BEFORE HESS, P.J.
OPINION AND ORDER
Before the court is a Petition for Review of the Pennsylvania State Association of
Township Supervisors from a Final Determination of the Pennsylvania Office of Open Records.
(Petition for Review, filed Oct. 4, 2012). In this Right-to-Know Law case, Respondent Walter
Brasch submitted requests to the Pennsylvania State Association of Township Supervisors
(hereinafter “PSATS”) pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., seeking
copies of, inter alia, resolutions, minutes of meetings, e-mails, letters, and other physical
correspondence concerning any and all communication between PSATS and the Office of the
Governor and his staff between the dates of November 1, 2011 and March 1, 2012 relating to Act
13 of 2012 and other proposed legislation. PSATS denied Respondent’s request for information,
asserting that it was not an agency subject to the Right-to-Know Law. Respondent appealed the
denial to the Pennsylvania Office of Open Records, which issued a Final Determination granting
Respondent’s appeal and requiring PSATS to provide the requested records. Following the
issuance of the Final Determination, PSATS timely filed the instant petition for review.
The record reveals the following facts. Petitioner, the Pennsylvania State Association of
Township Supervisors, is an unincorporated, non-profit association with a business address at
4855 Woodland Drive, Enola, Pennsylvania 17025. (Petition for Review of the Pennsylvania
State Association of Township Supervisors from Final Determination of Pennsylvania Office of
Open Records, ¶¶ 2-3 (hereinafter “Petition, ¶ __”); Admitted in Answer with New Matter of
Respondent Walter Brasch, ¶¶ 2-3 (hereinafter “Answer, ¶ __”)). Its formation authorized by the
General Assembly in 1921, PSATS provides member services to and represents the interests of
officials from more than 1,400 townships of the second class in the Commonwealth of
Pennsylvania. 53 P.S. § 66402; (Petition, ¶ 4; Admitted in Answer, ¶ 4). At the hearing on the
instant petition, it was explained that the mission of PSATS is to improve township government,
educate, inform and support public officials, and strive for legislation that will assist its members
in the performance of their duties. See also 53 P.S. § 66402(b) (“The State association shall hold
annual meetings. . .to discuss questions and subjects pertaining to the duties of elected and
appointed township officials and the improvement of township government.”). Furthermore, it
was explained that the voting membership of PSATS is limited to elected or appointed township
officials, and each member entitled to vote at the annual meeting of PSATS is elected by a
township. See also 53 P.S. § 66402(d), (e). Additionally, PSATS receives funding, in part, from
membership dues of second class townships to be used “for the payment of expenses incurred,
including, but not limited to, the rental or acquisition of real estate to be used for State
association purposes and activities, cost of publications, salaries, cost of services provided to or
for townships and other expenses incurred on behalf of the State association.” 53 P.S. §
66402(h).
2
Respondent, the Office of Open Records, is an office organized within the Pennsylvania
Department of Community and Economic Development pursuant to the Right-to-Know Law and
which is responsible for, inter alia, issuing orders and opinions relating to decisions made by
Commonwealth and local agencies concerning right-to-know requests. (Petition, ¶ 5; Admitted
1
in Answer, ¶ 5). Walter Brasch is an individual with an address at 2460 Second Street,
Bloomsburg, Pennsylvania 17815.
On July 5, 2012, Respondent Brasch submitted a request to PSATS, pursuant to the
Right-to-Know Law, 65 P.S. §§ 67.101-67.3104, seeking copies of “all resolutions submitted at
any time in May, June, or July 2012 relating to PA Act 13 of 2012 (aka HB-1950)” as well as
“official minutes as to the vote of membership on each resolution.” (Petition, Ex. A). On July
10, 2012, Respondent submitted an additional three-part request to PSATS seeking the
following: (1) correspondence between PSATS’ Executive Director or PSATS’ staff and the
Governor, the Governor’s staff, or the Governor’s cabinet secretary or designees for a certain
time period and relating to a particular bill; (2) PSATS’ income summary for a particular time
period, including income from membership dues, advertising, and any other source of income;
and (3) correspondence from PSATS’ Executive Director to an identified individual and relating
to a particular bill. (Petition, Ex. A). On July 13, 2012, PSATS responded to the requests,
denied them, and stated that it was not an “agency” subject to the Right-to-Know Law and,
therefore, was not required to respond to Right-to-Know Law requests. (Petition, Ex. B).
1
The Office of Open Records issued the Final Determination which is the subject of the instant appeal. By letter
received October 17, 2012, the Office of Open Records, by and through its counsel, J. Chadwick Schnee, Esquire,
indicated to the court that, although it is listed as an appellee in the above-captioned case, pursuant to the Right-to-
Know Law it is empowered with the discretion to determine whether it will respond to actions to review its final
determinations. (Letter of Counsel for the Office of Open Records, filed Oct. 17, 2012). Counsel for the Office of
Open Records stated the desire of the OOR to rest upon its Final Determination and indicated that it would not be
filing a brief or appearing for argument in the instant appeal. (Letter of Counsel for the Office of Open Records,
filed Oct. 17, 2012). By Order of Court, dated October 17, 2012, the Prothonotary was directed to file of record the
aforementioned letter. (Order of Court, Oct. 17, 2012).
3
In accordance with Section 1101(a)(1) of the Right-to-Know Law, 65 P.S. §
67.1101(a)(1), Respondent Brasch timely filed an appeal of the denials to the Office of Open
Records, stating the grounds upon which he believed he was entitled to disclosure. (Petition, Ex.
C). Respondent’s appeal set forth the following three bases as support for the proposition that he
was entitled to the requested records: first, Respondent alleged that, “since EVERY active
member of PSATS is a publically-elected government official that, within the scope of the state’s
Right to Know Law, almost all business conducted by these officials is bound by the public’s
right to now;” second, that “since public funds are used to fund PSATS that all communication,
with a few exceptions as determined by law, is included within the public right to know;” and,
lastly, “any and all communications between PSATS and the office of the Governor, a public
official paid for entirely by public funds, should be a matter of public record.” (Petition, Ex. C).
The Office of Open Records invited both parties to supplement the record, and, on July
27, 2012, PSATS submitted a supplemental position statement and the supporting affidavit of
Mr. David M. Sanko, PSATS’ Executive Director. (Petition, Ex. D, E). In its supplemental
statement, PSATS contended that it was neither a “Commonwealth agency” nor a “local agency”
under the Right-to-Know Law and, therefore, not subject to the requirements and obligations
imposed by the law. (Petition, Ex. E). The affidavit of Mr. Sanko explained the mission of
PSATS, described the Executive Board, and referenced the process by which PSATS adopts
resolutions. (Petition, Ex. E). Specifically, the affidavit explained that PSATS’ Executive Board
is comprised of a seven-member Executive Committee, and, furthermore, stated that “individuals
from hundreds of townships. . .participate in the election of PSATS’ Executive Board.
Therefore, representatives of no single governmental entity make up the majority of, or control
the appointment of the majority of, PSATS’ Executive Board members.” (Petition, Ex. E).
4
Additionally, the affidavit stated that “[n]either the Commonwealth of Pennsylvania nor any
local government entity has control over PSATS’ assets or its day-to-day operations;” “[n]o
governmental entities directly pay the salaries or benefits of PSATS’ employees;” “[n]one of
PSATS’ employees participate in any benefit plans reserved for Commonwealth or local
government employees;” and, “[i]n the event of dissolution, PSATS’ assets do not vest in any
governmental entity.” (Petition, Ex. E). Moreover, the affidavit explained that any resolution
adopted by PSATS merely establishes the policies of PSATS, and any such resolution is not
binding on any governmental entity. (Petition, Ex. E).
By Final Determination issued September 4, 2012, the Office of Open Records granted
Respondent’s appeal and directed PSATS to provide Respondent with the requested documents.
(Petition, Ex. F). It was the opinion of the Office of Open Records that, although it was not a
“Commonwealth agency” under the Right-to-Know Law, PSATS was a “local agency” within
the meaning of the term as used by the RTKL and, thus, required to disclose the requested
records. (Petition, Ex. F). Specifically, the Office of Open Records found that PSATS was not a
“Commonwealth agency” under the RTKL because “no statute identifies PSATS as providing an
essential service, there is no constitutional mandate for the services provided by PSATS, and
there is no evidence that in the absence of PSATS’s services, the survival of the Commonwealth
would be in jeopardy.” (Petition, Ex. F at p. 4-5 (citing Community College of Philadelphia v.
Brown, 674 A.2d 670, 671 (Pa. 1996)). Concerning the matter of whether PSATS was a “local
agency,” however, the Office of Open Records found that, despite a variety of factors weighing
against PSATS’ classification as a local agency, “the fact that PSATS exists solely as an
extension of, and to serve, township governments in the Commonwealth that are otherwise
subject to the RTKL” was so significant as to override all other considerations and was sufficient
5
to warrant a finding that PSATS was a local agency within the definition of the term as used by
the RTKL. (Petition, Ex. F at 7).
From the issuance of the Final Determination, PSATS timely filed the instant petition for
review. On January 15, 2013, argument on the matter was heard, and briefs were submitted.
After review, it appears that the sole issue for determination is whether PSATS is a
“Commonwealth agency” or a “local agency” within the meaning of those terms as used by the
Pennsylvania Right-to-Know Law.
Initially, we note that the Right-to-Know Law is silent on the standard and scope of
review to be used in appeals taken from final determinations issued by the Office of Open
2
Records. 65 P.S. § 67.101 et seq. The Commonwealth Court has held, however, that on the
matter of the standard of review to be applied, “a reviewing court, in its appellate jurisdiction,
independently reviews the OOR’s orders and may substitute its own findings of fact for that of
the agency . . . This express duty of fact-finding is consistent with a standard similar to de novo
review.” Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Commw. 2010), appeal
granted, 609 Pa. 265, 15 A.3d 427 (2011). Thus, the Right-to-Know Law “commands that the
usual deferential standard of review on appeal from Commonwealth agencies, such as the OOR,
does not apply.” Id. at 819. When considering the matter of the appropriate scope of review, the
Commonwealth Court has held that “a court reviewing an appeal from an OOR hearing officer is
entitled to the broadest scope of review,” and, therefore, may consider additional material not
considered by the OOR. Id. at 820. As a result, when a trial court hears an appeal taken from
2
Section 1302 of the Right-to-Know Law, 65 P.S. § 67.1302, governs appeals to the courts of common pleas from
final determinations issued by appeals officers relating to a local agency’s decision regarding access to public
records. Section 1302(a) merely directs “[t]he decision of the court [to] contain findings of fact and conclusions of
law based upon the evidence as a whole” and to “clearly and concisely explain the rationale for the decision.” 65
P.S. § 67.1302(a).
6
the OOR, the matter is subject to “independent review,” and the court is “not limited to the
rationale offered in the OOR’s written decision.” Id.
The right of citizens to inspect and copy the records of administrative agencies in
Pennsylvania is governed by the Pennsylvania Right-to-Know Law. 65 P.S. § 67.101 et seq.
Specifically, the law is “designed 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.” Bowling, 990 A.2d at 824. In pursuit of that objective, the provisions of the
Pennsylvania Right-to-Know Law impose certain open records requirements on any entity that
qualifies as either a “Commonwealth agency” or a “local agency.” 65 P.S. § 67.301; 65 P.S. §
67.302. In general, the RTKL provides that unless otherwise exempted by law, a “public record”
must be accessible for inspection and duplication by the requester in accordance with the
provisions of the Act. See 65 P.S. § 67.301 (“A Commonwealth agency shall provide public
records in accordance with this act.”); 65 P.S. § 67.302 (“A local agency shall provide public
records in accordance with this act.”).
At the heart of the instant petition is a determination of whether PSATS qualifies as
either a “Commonwealth agency” or a “local agency” within the meaning of the terms as defined
by the Right-to-Know Law. Section 102 contains the definition section of the RTKL and
provides, in relevant part, as follows:
The following words and phrases when used in this act shall have the meanings
given to them in this section unless the context clearly indicates otherwise:
“Agency.”
A Commonwealth agency, a local agency, a judicial agency or a
legislative agency.
. . .
“Commonwealth agency.”
Any of the following:
7
(1) Any office, department, authority, board, multistate agency or
commission 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.
(2) The term does not include a judicial or legislative agency.
. . .
“Local agency.”
Any of the following:
(1) Any political subdivision, intermediate unit, charter school,
cyber charter school or public trade or vocational school.
(2) Any local, intergovernmental, regional or municipal agency,
authority, council, board, commission or similar governmental
entity.
65 P.S. § 67.102.
Turning first to the matter of whether PSATS is a “Commonwealth agency,” we note that
this contention was not advanced by Respondents at the hearing, nor was it argued by way of a
brief in opposition to the instant petition for review. Moreover, we find no error with the
reasoning of the Office of Open Records in declining to classify PSATS as a Commonwealth
agency. Because it is clearly not part of the Governor’s Office, the Office of the Attorney
General, the Department of the Auditor General, or the Treasury Department, PSATS does not
meet subsections (i) or (ii) of the definition of Commonwealth agency. The question, then, is
whether PSATS meets the definition contained in subsection (iii).
Included within the definition of Commonwealth agency is “[a]n organization established
by the Constitution of Pennsylvania, a statute or an executive order which performs or is
intended to perform an essential government function.” 65 P.S. § 67.102. PSATS’ formation
was authorized by the Second Class Township Code, 53 P.S. § 66402(a), and, as a result, PSATS
constitutes “an organization established. . .by a statute” within the meaning of 65 P.S. § 67.102.
8
On the matter of whether PSATS performs or is intended to perform an essential governmental
function, we find that it does not; as a result, PSATS is not a Commonwealth agency.
In Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40 (Pa. Commw.
2012), the Commonwealth Court was called upon to determine whether the Delaware Valley
Regional Planning Commission (hereinafter “DVRPC”), a metropolitan planning organization
authorized by the United States Congress to cooperate with state and public transportation
operators to develop long-range transportation plans and transportation improvement plans in
metropolitan areas, was a “Commonwealth agency” within the meaning of the term as used by
Section 102 of the current RTKL, and, specifically, whether DVRPC was an organization that
performed or was intended to perform an essential government function. Citing SAVE, Inc., v.
Delaware Valley Regional Planning Commission, 819 A.2d 1235 (Pa. Commw. 2003), the court
found that “an organization performs an essential governmental function only where a statute
identified the organization as providing essential services or the organization provided
constitutionally mandated services or services that were indisputably necessary to the continued
existence of the Commonwealth.” Scott, 56 A.3d at 46 (citing SAVE, 819 A.2d at 1241). After
examining the structure and purpose of the DVRPC, and relying on a finding in SAVE that the
DVRPC did not perform an essential governmental function under the former Right-to-Know
Act, 65 P.S. §§ 66.1-66.9, the court found that the DVRPC performed its duties in an advisory
capacity; that the services provided by the DVRPC were neither constitutionally mandated nor
necessary for the survival of the Commonwealth; and, as a result, that the DVRPC was not an
“Commonwealth agency” subject to the RTKL. Id.
In the underlying case, the Office of Open Records relied on Community College of
Philadelphia v. Brown, 544 Pa. 31, 674 A.2d 670 (1996), to find that PSATS does not perform
9
an essential governmental function. In Brown, the Pennsylvania Supreme Court considered
whether community colleges should be considered agencies under the former Right-to-Know
Act, 65 P.S. §§ 66.1-66.9. Like the definition of “Commonwealth agency” contained in the
current RTKL, the definition of “agency” under the Right-to-Know Act included an
“organization created by or pursuant to a statute which declares in substance that such
organization performs or has for its purpose the performance of an essential government
function.” Id. at 34. The Court held that community colleges do not perform essential
governmental functions because no statute identifies community colleges as providers of
essential services; there was no constitutional mandate for the services provided by community
colleges; and “it [was] . . . not clear that in the absence of the services provided by community
colleges, the survival of the Commonwealth would be in jeopardy.” Id. 35.
After considering the scope and purpose of PSATS, as well as the factors outlined above,
we find that PSATS does not perform an “essential governmental function” within the meaning
of Section 102 of the RTKL. At the hearing on the instant petition, it was explained to the court
that the mission of PSATS is to improve township government, educate, inform and support
public officials, and strive for legislation that will assist its members in the performance of their
duties. In this case, no statute identifies PSATS as providing essential services; there is no
constitutional mandate for the services provided by PSATS; and there is no evidence that in the
absence of PSATS’ services, the survival of the Commonwealth would be in jeopardy. For these
reasons, we continue to be satisfied that PSATS does not perform an “essential governmental
function,” and, as a result, is not a “Commonwealth agency” within the meaning of 65 P.S. §
67.102.
10
We turn next to the question of whether PSATS is a “local agency” within the meaning of
the term as used by the Right-to-Know Law. As noted above, Section 102 defines the term
“local agency” as follows:
(1) Any political subdivision, intermediate unit, charter school, cyber charter
school or public trade or vocational school.
(2) Any local, intergovernmental, regional or municipal agency, authority,
council, board, commission or similar governmental entity.
65 P.S. § 67.102.
Clearly, PSATS does not meet the definition of subsection (1), as there has been no
contention, nor any evidence to support the proposition, that PSATS is a political subdivision,
intermediate unit, charter school, cyber charter school, or public trade or vocational school.
Rather, the underlying dispute in this case is whether PSATS is a “local, intergovernmental,
regional or municipal agency, authority, council, board, commission or similar governmental
entity.” PSATS contends that the OOR erred when rendering its Final Determination it
concluded the following:
The OOR finds that PSATS is created by local governments pursuant to statutory
authority and, therefore, is a “similar governmental agency” as contemplated in
the definition of local agency under the RTKL. Unlike the industrial development
corporation in [Philadelphia Industrial Development Corporation v. Ali, No. 528
C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 317 (Pa. Commw. Ct. April 18,
2011), discussed infra] which was a private, not for profit corporation, the
formation of PSATS is authorized by the General Assembly as part of the Second
Class Township Code, 53 P.S. § 66402(a) (authorizing the formation of PSATS);
PSATS’s voting membership is limited to township officers appointed by
township governments, 53 P.S. § 66402(e) (providing for the appointment of
PSATS delegates by a township’s board of supervisors); and PSATS receives
funding, at least in part, from dues paid by member townships, 53 P.S. § 66402(h)
(providing for payment of membership dues by townships). Thus, PSATS
performs activities pursuant to statutorily mandated duties and necessarily serves
a governmental function, albeit, as discussed above, not an “essential” one. . . .
Further, on appeal, PSATS provided the affidavit of David Sanko, PSATS’
Executive Director attesting that PSATS is managed by an Executive Board
11
elected based on the vote of township officials. Thus, the OOR finds that PSATS
serves as an extension of its member township governments, and is, therefore,
properly a local agency subject to the RTKL.
(Petition, Ex. F at 6-7).
Conversely, Respondent initially contends that the question of whether PSATS is a
“similar governmental entity” need not be reached because the plain language of the RTKL
mandates a finding that PSATS is a local agency subject to the RTKL; secondly, Respondent
argues that even if we determine that PSATS does not fall within the plain-meaning definition of
“local authority,” PSATS would still be subject to the RTKL as a “similar governmental entity,”
as was concluded by the OOR.
Relevant and binding case law on the question of what constitutes a “local agency,” and,
specifically, a “similar governmental entity,” within the meaning of the RTKL is sparse; indeed,
neither the parties nor the OOR have set forth definitive precedent on the matter. As a result, we
initially turn to traditional principles of statutory construction to ascertain the meaning of the
terms. Our Superior Court has held that “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of the law is not to be disregarded under the pretext of pursuing its spirit.”
Commonwealth v. Brown, 423 Pa.Super. 264, 620 A.2d 1213, 1214 (1993) (citing 1 Pa.C.S.A. §
1921(b)). When interpreting a statute, “the object is to ascertain and effectuate the intention of
the General Assembly.” Narberth Borough v. Lower Merion Township, 915 A.2d 626, 634, 590
Pa. 630, 643 (2007) (citing 1 Pa.C.S. §§ 1903(a), 1921(a)). “The primary and favored indicator
of the legislature’s intention is the plain language of the statute under scrutiny.” Id. The best
indication of legislative intent is the plain language of the statute. See Commonwealth v. McCoy,
599 Pa. 599, 609-10, 962 A.2d 1160, 1166 (2009).
12
After careful consideration, we are satisfied that PSATS is not a local, intergovernmental,
regional or municipal agency, authority, council, board, or commission. Rather, the record
indicates that PSATS is an unincorporated, non-profit association that represents the interests of
officials from more than 1,400 townships of the second class in the Commonwealth of
Pennsylvania. 53 P.S. § 66402. Moreover, Black’s Law Dictionary defines “authority,” in
relevant part, as a “[g]overnmental power or jurisdiction <within the court’s authority>” or a
“governmental agency or corporation that administers a public enterprise <transit authority>,”
and “commission” is defined as “[a] body of persons acting under lawful authority to perform
TH
certain public services. . .” BLACK’S LAW DICTIONARY (9 ed. 2009). Conversely,
“association” is defined as “[a]n unincorporated organization that is not a legal entity separate
TH
from the persons who compose it.” BLACK’S LAW DICTIONARY (9 ed. 2009). Quite
unlike the responsibilities of an agency, authority, counsel, board or commission, PSATS as an
association is not empowered to enact or interpret laws or ordinances and has no statutory power
to perform governmental functions; rather, the mission of PSATS is to improve township
government, educate, inform and support public officials, and strive for legislation that will assist
3
its members in the performance of their duties. Moreover, the only statutorily granted power
vested in PSATS is the power to “hold annual meetings. . .to discuss questions and subjects
pertaining to the duties of elected and appointed township officials and the improvement of
township government.” 53 P.S. § 66402(b). Being satisfied that PSATS is not an agency,
authority, counsel, board or commission within the meaning of Section 102 of the RTKL, 65 P.S.
3
Although clearly not controlling, the definitions contained in Black’s Law Dictionary highlight the differences between the
classical definitions of the terms at issue and the question presented herein. Black’s Law Dictionary defines “local agency” as “a
TH
political subdivision of a state” including “counties, cities, school districts, etc.” BLACK’S LAW DICTIONARY (9 ed.
2009).
13
§ 67.102, we turn to consider whether PSATS is a “similar governmental entity” within meaning
of the term as used by the RTKL.
In defining “similar governmental entity,” the OOR applied the rules of statutory
construction as set forth in Philadelphia Industrial Development Corporation v. Ali, No. 528
C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 317 (Pa. Commw. Ct. April 18, 2011) (filed
pursuant to Section 256(b) of the Commonwealth Court’s Internal Operating Procedures)
(hereinafter “PIDC”). In PIDC, the Commonwealth Court was called on to determine whether
the Philadelphia Industrial Development Corporation qualified as a “local agency” under Section
102 of the RTKL, 65 P.S. § 67.102. PIDC was a private, not-for-profit Pennsylvania corporation
formed jointly in 1957 by the Greater Philadelphia Chamber of Commerce and the City of
Philadelphia for the purpose of promoting economic development throughout the city. Id. at 2.
In considering whether PIDC was a “similar governmental entity” within the meaning of Section
102 (defining “local agency”) of the RTKL, the Commonwealth Court applied the following
rules of statutory construction:
Under the doctrine of statutory construction known as ejusdem generis, “where
general words follow the enumeration of particular classes of persons or things,
the general words will be construed of the same general nature or class as those
enumerated.” Indep. Oil & Gas Ass’n of Pa. v. Bd. of Assessment Appeals of
Fayette Cnty., 572 Pa. 240, 246, 814 A.2d 180, 184 (2002) (quoting McClellan v.
Health Maint. Org. of Pa., 546 Pa. 463, 473, 686 A.2d 801, 806 (1987)). This
concept has been codified in Section 1903(b) of the Statutory Construction Act, 1
Pa. C.S. § 1903(b), which provides: “General words shall be construed to take
their meanings and be restricted by preceding particular words.” Accordingly, the
term “similar governmental entity” must be construed in light of the particular
terms preceding it, which include: “any local, intergovernmental, regional or
municipal agency, authority, council, board, [or] commission.” Section 102 of the
RTKL.
Generally, local, intergovernmental, regional or municipal agencies, authorities,
councils, boards, or commissions are governmental entities established by a
political subdivision pursuant to statutory authorization. As PIDC aptly observed:
14
The elements common to each of these governmental entities include: (1) Each is
created by a political subdivision pursuant to specific statutory power granted to
the political subdivision; (2) Each is considered to be either a division of a
political subdivision or political subdivision in its own right; (3) The members are
appointed exclusively by the governing body of the creating political subdivision;
(4) The political subdivision delegates, rather than contracts, the power to perform
a governmental function to the governmental entity; and (5) The governing body
of the creating political subdivision has the authority to disband the agency,
authority, board or commission.
Id. at 7-8.
Applying the doctrine of ejusdem generis, the Commonwealth Court examined each of
the elements common to governmental entities and concluded that “it is clear that PIDC is not a
‘similar governmental agency’ because PIDC is disparate from all of the specific types of
governmental entities expressly listed in Section 102 of the RTKL’s definition of ‘local
agency.’” Id. at 8. The court found that PIDC was not created by a political subdivision pursuant
to a specific statutory power; PIDC was not a division of a political subdivision or a political
subdivision itself; PIDC’s members were not appointed exclusively by the governing body of a
political subdivision; PIDC did not require a delegation of authority from a political subdivision
to promote economic development; and PIDC could not be disbanded by a political subdivision.
Id. at 8-9. Moreover, the court found that PIDC was “not a governmental entity at all.” Id. at 9.
For these reasons, the court held that PIDC was not a “local agency” subject to the open records
requirements of the RTKL. Id. at 9.
Although unpublished opinions of the Commonwealth Court cannot control our decision
today, we are satisfied that the “similar governmental entity” analysis conducted by the
Commonwealth Court is both pertinent and persuasive. We disagree, however, with the OOR
that the Ali analysis of a “similar governmental entity” leads to the conclusion that PSATS is a
15
“local agency” within the meaning of Section 102 of the RTKL. Turning to the first criteria, for
example, that each governmental entity found in 65 P.S. § 67.102 is created by a political
subdivision pursuant to specific statutory power granted to the political subdivision, it is clear
that PSATS is not an entity “created by a political subdivision.” Although its’ formation was
authorized by Section 66402 of the Second Class Township Code, the statute does not vest
power in any political subdivision to create PSATS. Rather, 53 P.S. § 66402 provides only that
various Boards of Supervisors in the Commonwealth may appoint officials to attend the
meetings of PSATS; thus, it is the statute itself which “authorizes” the formation of PSATS by
voluntary association of people involved in local township government. We disagree, therefore,
with the conclusion of the OOR that “PSATS is created by local governments pursuant to
statutory government and, therefore, is a ‘similar governmental agency’ as contemplated in the
definition of local agency under the RTKL.” (Petition, Ex. F at 6).
The second criteria of the Ali analysis, that each governmental entity found in 65 P.S. §
67.102 is considered to be either a division of a political subdivision or political subdivision in
its own right, is likewise inapplicable to PSATS. The Statutory Construction Act defines
“political subdivision” as “[a]ny county, city, borough, incorporated town, township, school
district, vocational school district and county institution district.” 1 Pa.C.S. § 1991. Unlike
these entities which form policy or implement legislation, PSATS is an unincorporated, non-
profit organization with a mission of improving township government, educating, informing and
supporting public officials, and striving for legislation that will assist its members in the
performance of their duties. PSATS’ membership is comprised of officials and representatives
from across the Commonwealth of Pennsylvania. As such, PSATS cannot be considered to be
either a division of a political subdivision or a political subdivision in its own right.
16
The third criterion in Ali provides that “the members are appointed exclusively by the
governing body of the creating political subdivision.” Traditionally, a political subdivision may
create certain local boards, agencies, commissions and authorities by vote of the elected officials
of the creating political subdivision. In the case of PSATS, its members are not appointed
exclusively by governing bodies of political subdivisions. Rather, membership in PSATS is
“open to all elected and appointed township officials, including supervisors, secretaries,
treasurers, and managers.” (Petition, Ex. E). Moreover, governing bodies of political
subdivisions do not appoint or elect PSATS’ officers and its Executive board; instead, these are
elected by the individual members of the Association, itself. Thus, the third criterion in Ali is
inapposite.
The fourth criteria of the Ali analysis, that the political subdivision delegates, rather than
contracts, the power to perform a governmental function to the governmental entity, is likewise
inapplicable to PSATS. In SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012), the
Pennsylvania Supreme Court took up the question of what constituted a “governmental function”
in the context of whether the functions that a private entity was performing on behalf of a
municipal authority were sufficiently governmental so as to require the contracting private party
to disclose their records in accordance with the current RTLK. In that case, a private entity
serving as a manager of baseball operations and running a concession stand at a minor league
stadium was required to disclose concession bids under the RTKL because, although concession
stand activities are traditionally not thought of as governmental functions, it constituted a
function that the municipal authority would have had to assume as part of its duties in running a
public stadium. Id. Specifically, the Court held the act of delegating a governmental function
involves “an act of delegation of some substantial facet of the agency’s role and responsibilities.
17
. . .” Id. at 1043 (emphasis added). Moreover, the Court found that, “where a government
agency’s primary activities are defined by statute as ‘essential government functions,’ and such
entity delegates one of those main functions to a private entity via the conferral of agency status,
Section 506(d)(1) pertains on its terms to non-exempted records directly relating to the function.”
Id. at 1043-44.
In this case, the record indicates that townships have neither delegated nor contracted
away any of their powers, responsibilities, or governmental functions to PSATS. The various
township supervisors continue to govern and manage all aspects of their respective townships,
and PSATS has no authority to make decisions that are binding on an individual township. The
purpose and mission of PSATS, therefore, is not to ease the managerial burden of township
supervisors, but rather to advocate for causes that PSATS believes are in the collective best
interests of township governments in general. Thus, the fourth criteria of the Ali analysis is,
likewise, inapplicable to PSATS.
The fifth and final element common to each of the governmental entities listed in Section
102 of the RTKL according to Ali provides that the “governing body of the creating political
subdivision has the authority to disband the agency, authority, council, board or commission.”
The record reveals that, although township governments have the ability to choose not to pay
dues to PSATS on behalf of their elected and appointed representatives, the member township
supervisors have no authority to disband PSATS. The management of PSATS is vested in the
Executive Board, and no single township has control over the day-to-day operations of PSATS
or its assets. Moreover, in the event of PSATS dissolution, the record indicates that PSATS’
assets would not vest in any township governing body. (Petition, Ex. E).
18
In its Final Determination, the Office of Open Records found PSATS to be a “similar
governmental agency” because it “is created by local governments pursuant to statutory
authority” and because it “serves as an extension of its member township governments.”
(Petition, Ex. F at 6). In other words, the OOR concludes that because PSATS is an entity made
up of governments, it is, therefore, a governmental entity. For reasons we have already stated,
we disagree with the conclusion of the OOR and find that PSATS is neither a “Commonwealth
agency” nor a “local agency” within the meaning of the RTKL.
ORDER
AND NOW, this day of March, 2013, upon consideration of the Petition for
Review of the Pennsylvania State Association of Township Supervisors from a Final
Determination of the Pennsylvania Office of Open Records, issued September 4, 2012, following
a hearing, held January 15, 2013, and for the reasons contained in the opinion filed of even date
herewith, this court finds that the Pennsylvania State Association of Township Supervisors is
neither a Commonwealth agency nor a local agency within the meaning of section 102 of the
Pennsylvania Right-to-Know Law, and the Final Determination of the Office of Open Records is
hereby REVERSED.
BY THE COURT,
Kevin A. Hess, P.J.
19
Scott E. Coburn, Esquire
4855 Woodland Drive
Enola, PA 17025
For Petitioner PSATS
J. Chadwick Schnee, Esquire
Commonwealth Keystone Building
th
400 North Street, 4 Floor
Harrisburg, PA 17120-0225
For Respondent OOR
Terence J. Barna, Esquire
103 E. Market Street
P. O. Box 5185
York, PA 17405-5185
For Respondent Brasch
:rlm
20
PENNSYLVANIA STATE
: IN THE COURT OF COMMON PLEAS OF
ASSOCIATION OF TOWNSHIP
: CUMBERLAND COUNTY, PENNSYLVANIA
SUPERVISORS,
:
Petitioner
:
:
v.
: APPEAL FROM FINAL DETERMINATION
: OF PENNSYLVANIA OFFICE OF
PENNSYLVANIA OFFICE OF
: RECORDS
OPEN RECORDS and
:
WALTER BRASCH,
:
Respondents
: No. 2012-6207 CIVIL ACTION - LAW
IN RE: PETITION FOR REVIEW OF THE PENNSYLVANIA STATE ASSOCIATION OF
TOWNSHIP SUPERVISORS FROM FINAL DETERMINATION OF
PENNSYLVANIA OFFICE OF OPEN RECORDS
ORDER
AND NOW, this day of March, 2013, upon consideration of the Petition for
Review of the Pennsylvania State Association of Township Supervisors from a Final
Determination of the Pennsylvania Office of Open Records, issued September 4, 2012, following
a hearing, held January 15, 2013, and for the reasons contained in the opinion filed of even date
herewith, this court finds that the Pennsylvania State Association of Township Supervisors is
neither a Commonwealth agency nor a local agency within the meaning of section 102 of the
Pennsylvania Right-to-Know Law, and the Final Determination of the Office of Open Records is
hereby REVERSED.
BY THE COURT,
Kevin A. Hess, P.J.
Scott E. Coburn, Esquire
4855 Woodland Drive
Enola, PA 17025
For Petitioner PSATS
J. Chadwick Schnee, Esquire
Commonwealth Keystone Building
th
400 North Street, 4 Floor
Harrisburg, PA 17120-0225
For Respondent OOR
Terence J. Barna, Esquire
103 E. Market Street
P. O. Box 5185
York, PA 17405-5185
For Respondent Brasch
:rlm
22