Markham v. Wolf
190 A.3d 1175
Pa.2018Background
- Governor Wolf issued Executive Order 2015-05 creating (1) a Governor's Advisory Group on Participant-Directed Home Care and (2) a formal process for Direct Care Workers (DCWs) to elect a representative, receive a monthly DCW List, and "meet and confer" with the Secretary and Deputy Secretary of Human Services; the Order is expressly framed as voluntary, nonbinding, and not creating collective-bargaining rights.
- The Order’s key mechanics: monthly compilation of names/addresses of DCWs paid under participant-directed programs; AAA-run elections when a petitioning organization shows support; recognition of one DCW representative; monthly meet-and-confers; written "memoranda of mutual understanding" that may inform Department policy but are not enforceable contracts.
- Plaintiffs (homecare providers, participants, and advocacy groups) sued claiming the Order exceeded executive authority (separation of powers), conflicted with Act 150’s participant-directed model, violated Pennsylvania labor statutes by effectuating collective bargaining, and raised privacy concerns about the DCW List.
- The Commonwealth Court (en banc) upheld Section 2 (Advisory Group) but invalidated Sections 3–4 and related definitions as effectively creating collective bargaining and altering employer–employee relationships; it enjoined enforcement of the invalid provisions.
- The Pennsylvania Supreme Court vacated the Commonwealth Court’s ruling, holding the Order permissible because it is voluntary, nonexclusive, and non-enforceable (a valid gubernatorial directive to subordinate officials), found no conflict with Act 150 or labor statutes, but remanded for the Commonwealth Court to consider DCW/participant privacy claims under PSEA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Separation of powers / Gov't exceeded authority | Order "makes law" by creating a representation/election process and binding policy outcomes—a legislative function | Order is a nonbinding directive to executive subordinates to formalize voluntary input; unenforceable orders are permissible | Court: Governor did not exceed authority; voluntary, nonbinding EO is a valid executive directive |
| Consistency with Act 150 (participant control) | Order undermines participants’ statutory right to select/hire/supervise DCWs by injecting representative/Department control | Order expressly preserves participants’ rights and does not alter the participant–DCW relationship; it only facilitates additional channels for input | Court: Order does not change participant–DCW relationship and is consistent with Act 150 |
| Conflict with Pennsylvania labor statutes (PLRA/PERA) | Order effectively grants collective-bargaining rights, creates exclusive representation, bypasses statutory safeguards | Order creates no enforceable rights, no duty to bargain in good faith, no exclusivity that binds DCWs, no strike/arbitration rights—qualitatively distinct from PLRA/PERA | Court: No conflict; EO lacks hallmarks of statutory collective bargaining and does not create legal rights |
| Privacy / DCW List distribution | Monthly disclosure of names/addresses violates privacy principles (per PSEA) | Administration claims steps to comply with privacy precedent but record is undeveloped | Court: Privacy issue unresolved; remanded to Commonwealth Court to apply PSEA balancing test |
Key Cases Cited
- Commonwealth v. Mockaitis, 834 A.2d 488 (Pa. 2003) (separation‑of‑powers background on tripartite government)
- Werner v. Zazyczny, 681 A.2d 1331 (Pa. 1996) (executive orders lacking statutory/constitutional authorization create no enforceable rights but may be issued and are not judicially enforceable)
- Shapp v. Butera, 348 A.2d 910 (Pa. Cmwlth. 1975) (taxonomy of executive orders: proclamations, directives to subordinates, implementation of law)
- Pagano v. Pennsylvania State Horse Racing Commission, 413 A.2d 44 (Pa. Cmwlth. 1980) (treatment of gubernatorial executive orders lacking force of law)
- Pennsylvania State Education Association v. Commonwealth, Dept. of Community & Economic Dev., 148 A.3d 142 (Pa. 2016) (privacy balancing for government disclosure of employee home addresses)
- Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (U.S. 1975) (legal effects of exclusive representation in labor context)
- J.I. Case Co. v. NLRB, 321 U.S. 332 (U.S. 1944) (exclusive representative authority and binding agreements)