9 A.3d 1216
Pa. Commw. Ct.2010Background
- Treasurer McCord seeks a declaration that he, or his designee, has the statutory right to fully participate in all public and executive sessions of the Pennsylvania Gaming Control Board as a non-voting ex officio member.
- Board objects, arguing the Treasurer is not a Board member, cannot participate in executive sessions, and participation would threaten confidentiality, impartiality, and attorney-client privilege.
- Gaming Act §1201(e) expressly provides the Treasurer as a non-voting ex officio Board member; Board relies on §1103 which defines a member as voting members only.
- Sunshine Act allows executive sessions for confidential matters, with the caveat that no official action occurs behind closed doors; the question is whether non-voting ex officio participation is permitted.
- Court discusses appearance of impropriety and whether the Treasurer’s involvement would taint public perception; finds no impropriety given the Treasurer’s Commonwealth-wide role.
- Court holds the Treasurer has standing and the controversy is ripe; it declines to exercise discretion to decline jurisdiction under the Declaratory Judgments Act and overrules the Board’s preliminary objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Treasurer has a statutory right to participate in executive sessions. | McCord: ex officio non-voting member may attend. | Board: only voting members participate; non-voting not allowed. | Yes; Treasurer may participate. |
| Whether the Treasurer has standing to seek declaratory relief. | Treasurer has direct, immediate interest in participation. | Board: no standing under objections. | Treasurer has standing. |
| Whether the case is ripe for declaratory relief. | Controversy over participation is present and imminent. | Ripeness not satisfied; lacks real controversy. | Controversy is ripe. |
| Whether the court should decline jurisdiction under the Declaratory Judgments Act. | Declaring rights terminates uncertainty. | No termination of uncertainty. | Court will not decline jurisdiction. |
| Whether granting relief would resolve Treasurer’s ability to participate. | Declaratory relief would allow full participation without voting rights. | Relief may be insufficient to fix practical participation. | Relief would resolve the controversy. |
Key Cases Cited
- In re Milton Hershey Sch., 590 Pa. 35 (Pa. 2006) (standing and aggrieved party requirements)
- Smith v. Pa. Emps. Benefit Trust Fund, 894 A.2d 874 (Pa. Cmwlth. 2006) (standing and preliminary objections framework)
- Mid-Centre Cnty. Auth. v. Boggs Twp., 384 A.2d 1008 (Pa. Cmwlth. 1978) (ripeness and controversial claims)
- Lakeland Joint Sch. Dist. Auth. v. Scott Twp. Sch. Dist., 200 A.2d 748 (Pa. 1964) (defining ripeness and advisory opinions)