92 Pa. Commw. 340 | Pa. Commw. Ct. | 1985
Opinion by
Before us are appeals of two separate Philadelphia Common Pleas Court orders which, in effect, held that the Mayor of Philadelphia did not exceed the authority of his office in creating the Philadelphia Special Investigation Commission and that the Commission did not violate the Pennsylvania Open Meeting
The Fraternal Order of Police, Lodge No. 5 (FOP), initiated the two actions which sought (1) by way of a complaint in equity and accompanying motion for special or preliminary injunction to have the Commission declared an illegal entity under the Philadelphia Home Buie Charter and (2) by way of an amended complaint in mandamus and motion for preliminary injunction to have the Commission enjoined from proceeding until it validly promulgated its rules of conduct. The common pleas court denied the motions and summarily dismissed the complaints in each instance.
The Mayor, by Executive Order No. 5-85,
Oúr scope of review of the trial court’s orders denying preliminary relief is limited to whether there were any apparently reasonable grounds to justify the Chancellor’s actions, Pennsylvania Interscholastic Athletic Association v. Geisinger, 81 Pa. Commonwealth Ct. 421, 426, 474 A.2d 62, 65 (1984), and our review of its. orders dismissing the complaints is whether it abused its discretion or committed an error of law. Wightman Health Center v. Office of the
The FOP contends that the trial court erred in holding that Sections 3-100(h) and 3-917 of the Charter
The Charter provides that the executive and administrative power of the City is exclusively vested in and exercised by the Mayor and the departments, commissions and boards established in it. 351 Pa. Code §1.1-102. The Mayor is the chief executive officer of the City and is responsible for the conduct of the executive and administrative work of the city and for law enforcement within its boundaries. 351 Pa. Code §4.4-100.
Section 3-100 of the Charter provides that the executive and administrative work of the City shall be performed by: the Mayor, the managing director, department heads, etc., and “ [s]uch additional advisory boards as the Mayor may appoint.” An advisory board’s composition and duty is defined in Section 3-917 of the Charter, which states: “The Mayor may upon the request of the head of any department or of his own volition appoint a board of seven citizens to act in an advisory capacity to such department regarding the department’s work or any specified phase of it.” (Emphasis added.)
A reading of these provisions convinces us that the Mayor created a properly authorized advisory
The duty of the Fire Marshall,
The Commission, pursuant to Section 3-917, may hold hearings and issue subpoenas to investigate the executive and pertinent administrative departments,
Moreover, the Charter’s authority specifically limits the scope of this inquiry.
Acting consistently in this posture, the Commission is not on this record infringing on the duties of the fire marshall, the medical examiner, police, fire and other departmental heads. That various state and county officials, such as the Attorney General, the District Attorney of Philadelphia and the City Controller have the authority to lawfully investigate the activities of these departments in pursuing violations of the law does not negate the authority of this Commission as it carries out its limited mandated mission.
However, the Commission, as established, is a temporary, limited purpose, advisory board without authority to make a binding recommendation which would affect the substantive rights of any individual. Thus, this Commission lacks the essential character of the zoning boards, school boards, utility commissions, etc., all of which are controlled by the Sunshine Law.
We agree with the analysis of the Oklahoma Supreme Court which, although not faced with an identical open meeting law, addressed a statute similar in principle:
Although different courts must construe different statutory provisions, it appears that the majority of other jurisdictions have generally held that ad hoc committees or citizens advisory committees, empaneled for the purpose of furnishing information and recommendations to governing or decision-making entities, are not subject to the open meeting laws unless they have actual, or defacto decision-making authority.
Sanders v. Benton, 579 P.2d 815, 819 (1978) (emphasis added).
Finding no error of law, we affirm the two orders of the common pleas court.
The orders of the Philadelphia County Common Pleas Court, No. 2977 July Term 1985 dated July 16, 1985 and No. 4088 September Term 1985 dated September 27, 1985, are affirmed.
Act of July 19, 1974, P.L. 486, as amended, 65 P.S. §§261-269.
The record reveals (that neither the Commission nor the City filed any responsive pleadings to the complaints or the motions for injunctive relief below. This Court is aware of this procedural defect; however, neither party raised it on appeal and, due to the importance of the issues before us, we will review the merits of the matter below.
Executive Order No. 5-85 reads in pertinent part:
WHEREAS, on May 13, 1985, an incident occurred at 6221 Osage Avenue in the City and County of Philadelphia, Pennsylvania, that resulted in the loss of eleven lives and the destruction by fire of the homes and personal effects of sixty-one families in the surrounding neighborhood; and
WHEREAS, that incident was the result of an interaction between the so-called MOVE organization and various departments and agencies in the Executive and Administrative branch of Philadelphia City government; and
WHEREAS, under the Philadelphia Home Rule Charter said departments and agencies report to the Mayor as the Chief Executive Officer responsible for the Executive and Administrative branch of City government; and
*343 WHEREAS, the incident of May 13, 1985, has given rise to complaints about the operation of the Executive and Administrative branch of City government and law enforcement within its boundaries; and
WHEREAS, it is important to the imblic confidence in City government that this incident, he thoroughly investigated by an independent and impartial commission; and
WHEREAS, it is essential that this commission have ihe full authority granted to the Executive and Administrative branch by the Philadelphia Home Rule Charter in order to successfully perform this function; and
NOW, THEREFORE, by the power vested in me in accordance with Section 8-409 of the Philadelphia Home Rule Charter as the Mayor of the City, it is hereby ordered:
(1) That the Philadelphia Special Investigation Commission is established to conduct a thorough, independent and impartial examination of the events leading up to and including the incident of May 13, 1985, in the neighborhood of 6221 Osage Avenue in Philadelphia, Pennsylvania.
(2) The Commission shall inquire into the conduct of City employees in the planning and implementation of City government actions prior to and on May 13, 1985.
(3) The Commission is authorized to conduct investigations, hold hearings and perform any other tasks related t.o the performance of its functions.
(4) Tlie Commission is hereby granted the right of access to the records of any officer, department, board, agency or commission of the City relating to the MOVE organization and the events of May 13, 1985.
(5) The Commission shall have the authority vested in the Executive and Administrative branch of City government under the Philadelphia Home Rule Charter to compel the attendance and testimony of witnesses and the production of documents and other evidence relating to the*344 incident of May 13, 1985; and, for that purpose, it may issue subpoenas requiring the attendance and testimony of persons and the -production of documents and other evidence and -cause them to be served in any part of the City.
. , (6) All employees within the Executive and Administrative branch of City government are hereby directed to fully cooperate with the Commission by promptly producing documents, records, files and any other information that the Commission may request. In addition, these employees, on request of the Commission, shall be available to meet with, be interviewed by, and testify before the Commission during its hearings.
(9) The Commission is investigatory only, and shall find facts and prepare a report for the Mayor and the Citizens of Philadelphia concerning the operation of City government as it relates to the events giving rise to the incident'of May 13, 1985 and‘may make suggestions for future handling of similar situations.
351 Pa. Code §§3.3-100, 3.3-917.
351 Pa. Code §2.2-400.
53 Pa. C.S. §§14526, 14527.
16 Pa. O.S. §§9521-9524.
While it is a wholesome and salutary objective to hold open hearings and to report its findings to .the public, neither the Commission nor the Chief Executive Officer has specific authority to do so under Section 3-917 of the Charter. Considering the public need for full disclosure, this ordination in the Executive Order does not invalidate the Commission.
We hold that the ultimate responsibility for the activity of the various departments reposes in the Chief Executive and it is therefore appropriate that the report should be made to him.
The City contends that the Mayor has “inherent and implicit” power to create the Commission. We disagree. Executive Order No. 5-85 explicitly refers to the Charter for creating subpoena and other power in the Commission. We hold that the Mayor is bound by the Charter.
The parties have stipulated that the Commission adopted its Rules of Conduct at a closed meeting.