Opinion
No. 2118 C.D. 2008.
Argued: June 10, 2009.
Filed: July 2, 2009.
BEFORE: SIMPSON, Judge; FRIEDMAN, Senior Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
In this appeal, E. David Christine, Jr., the District Attorney of Monroe County (District Attorney) asks whether the Court of Common Pleas of Monroe County (trial court) erred in sustaining the preliminary objections filed by James R. Lambert (Lambert), Executive Director of the Monroe County Municipal Waste Management Authority (Authority) and dismissing District Attorney's suit in quo warranto seeking Lambert's removal from his position as the Authority's Executive Director. The trial court determined the Executive Director position was not "an office of trust or profit" as contemplated by Article II, Section 7 of the Pennsylvania Constitution and, therefore, the position was not subject to an action in quo warranto. Upon review, we affirm.
The Authority is a Pennsylvania municipal authority duly created and constituted by the Commissioners of Monroe County in accordance with the Municipality Authorities Act. The Authority is governed by a board of directors who are appointed by the Commissioners of Monroe County. Lambert currently serves as the Authority's Executive Director.
53 Pa. C.S. §§ 5601- 5623.
District Attorney's complaint alleges that in accordance with the Authority's by-laws, Lambert is an officer of the Authority. The complaint further avers Lambert provided the Authority with a bond conditioned on the faithful performance of his duties. The complaint also alleges, in his capacity as Executive Director, Lambert functions as the chief executive officer of the Authority.
In addition to his function as chief executive officer of the Authority, Lambert is required to perform the following duties: (a) implementing policies set by the directors; (b) assisting in the setting of goals for the Authority; (c) responsibility for financial management of the Authority; (d) responsibility for development, implementation, and accomplishment of the annual work plan; (e) responsibility for providing information, advice and counsel to the directors; (f) responsibility for the supervision of all Authority staff, including, without limitation, interviewing, recommendations for hiring and training employees, planning, assigning and directing of work, appraising performance, and rewarding and disciplining employees; and, (g) responsibility for administration of the overall operations of the Authority. Compl. at ¶ 10, R.R. at 5a-6a.
The complaint also alleges, prior to his appointment as the Authority's Executive Director, Lambert was convicted by guilty plea and sentenced by the U.S. District Court of New Jersey for commission of the following felony federal criminal offenses: 18 U.S.C. § 1341 (relating to "frauds and swindles"), and 18 U.S.C. § 371 (conspiracy to commit offense or to defraud United States).
In May 2008, District Attorney filed suit in quo warranto seeking to remove Lambert from office as Executive Director of the Authority pursuant to Article II, Section 7 of the Pennsylvania Constitution, which states: "No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth." The complaint alleged the position as the Authority's Executive Director is an "office of trust or profit" governed by and subject to this constitutional provision. As a result, District Attorney sought an order: declaring Lambert unqualified for the position of Executive Director; ousting Lambert from his position as Executive Director; and, requiring Lambert to refund all salary, reimbursements and other payments made to him as Executive Director.
In response, Lambert filed preliminary objections in the nature of a demurrer, asserting the constitutional preclusion referenced by District Attorney applied only to elected officials, those officials in a position to govern, and not those appointed officials or employees of public or municipal entities. Because the position of Executive Director of the Authority could not be considered an "office of trust or profit," Lambert asserted he could not be constitutionally precluded from holding that office.
The parties submitted briefs, and the trial court heard oral argument on Lambert's preliminary objection. The trial court subsequently issued an opinion in which it sustained Lambert's preliminary objection and dismissed District Attorney's suit.
In its opinion, the trial court framed the issue before it as whether Lambert "is an `employee' or an `officer of trust or profit' within this Commonwealth." Tr. Ct., Slip Op. at 4. The trial court recognized, as to the specific position at issue, i.e., executive director of a municipal authority, this matter presented an issue of first impression. In order to resolve the issue, the trial court reviewed several cases that set forth the factors to be considered in determining whether an individual is a "public officer." See Alworth v. County of Lackawanna, 85 Pa. Super. 349 (1925); Dewey v. Luzerne County, 74 Pa. Super. 300 (1920); see also Vega v. Borough of Burgettstown, 394 Pa. 406, 147 A.2d 620 (1958). Applying these cases, the trial court looked to the Authority's by-laws and its employee handbook for an understanding of how the Executive Director is hired, the terms of such employment, and the nature of the duties of the position.
Ultimately, the trial court concluded the Executive Director position is one that requires performance of certain ministerial and administrative duties; it is not an elected position and does not involve an "officer of trust or profit." In particular, the trial court noted, pursuant to the Authority's by-laws, the Executive Director is not a member of the Authority's board of directors; rather, the Executive Director is employed to follow the procedures set forth by the board and to implement and carry out policies made by the board. To that end, the trial court stated the Authority's by-laws provide a division of duties to the board members such that the Executive Director is not responsible for creating policies, handling the Authority's funds or making any decisions on the Authority's behalf. It further noted the Authority's by-laws and its employee handbook are silent on hiring procedures for potential employees with felony convictions. Absent any criteria established by the Monroe County Commissioners or the Authority's board of directors excluding individuals from employment in such circumstances, the trial court determined that Lambert was not barred from employment. Thus, the trial court concluded the Executive Director position as an employee of the Authority was not subject to an action in quo warranto. District Attorney now appeals to this Court.
The District Attorney previously filed an application to transfer this appeal to the Supreme Court, which was denied by a single judge of this Court. Thus, this Court retains jurisdiction over this appeal.
On appeal, District Attorney argues Lambert is a felon, convicted of conspiracy to bribe a local government official. He is currently serving as the chief executive officer in day-to-day command, and he is responsible for the financial management of the Authority, a position he is barred from holding as per Article II, Section 7 of the Pennsylvania Constitution. District Attorney asserts the trial court erred in sustaining Lambert's preliminary objections in the nature of a demurrer, and the trial court did so in complete disregard of Lambert's burden of proving his right to hold the office in question. District Attorney contends it is illogical to presume the Pennsylvania Constitution would permit a board member of a municipal authority to be removed by a quo warranto action as in Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686 (1941), but not a convicted felon entrusted with command over operation of the same public agency.
Our review of a trial court order sustaining preliminary objections in the nature of a demurrer is limited to determining whether the trial court abused its discretion or committed an error of law. O'Connor v. City of Phila. Bd. of Ethics, 970 A.2d 504 (Pa.Cmwlth. 2009). In ruling on preliminary objections, the court must accept as true all well-pled allegations of material fact. Id.
After reviewing the record, the parties' briefs, and the law in this area, we see no need to elaborate on the trial court's thorough and thoughtful opinion. The issue presented was ably resolved in the comprehensive opinion of the Honorable Ronald E. Vican, President Judge. Therefore, we affirm on the basis of the trial court's opinion in the matter of Commonwealth of Pennsylvania Ex rel. E. David Christine, Jr., District Attorney of Monroe County v. James R. Lambert (No. 4075 CIVIL 2008, filed October 28, 2008) (C.P. Monroe).
ORDER
AND NOW, this 2nd day of July, 2009, the order of the Court of Common Pleas of Monroe County is AFFIRMED upon the opinion of the Honorable Ronald E. Vican in Commonwealth of Pennsylvania Ex rel. E. David Christine, Jr., District Attorney of Monroe County v. James R. Lambert (No. 4075 CIVIL 2008, filed October 28, 2008) (C.P. Monroe).