Before the Court are preliminary objections in the nature of a demurrer filed by the Governor of Pennsylvania to George Venesky's petition for review challenging his removal from the appointed position as a member of the Pennsylvania Game Commission.
According to the petition for review, Governor Ridge appointed Venesky to the office of Game Commissioner for the Seventh District
The Governor avers that Venesky has failed to state a claim for which relief can be granted because under the Pennsylvania Constitution appointed civil officers, including game commissioners, may be removed at the pleasure of the appointer unless otherwise specified by law, and no other law limits the Governor's authority to remove game commissioners. Furthermore, the Governor avers, game commissioners do not serve fixed and staggered terms.
Article 6, Section 7 of the Pennsylvania Constitution states,
All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the
Pa. Const. art. VI, § 7 (emphasis added). "All officers, whose selection is not provided for in th[e] Constitution, shall be elected or appointed as may be directed by law." Pa. Const. art. VI, § 1.
In the absence of statutory language governing the removal of an appointed officer, the constitutional provision providing for removal at the pleasure of the appointive power prevails.
The Game and Wildlife Code provides, "The independent administrative commission[
34 Pa.C.S. § 301(c). "Upon the death, resignation or removal from office of any person so appointed, the Governor shall appoint a competent person to serve for the unexpired term...." 34 Pa.C.S. § 301(d). The Game and Wildlife Code imposes no limitations on the removal of a commissioner from office; in fact, it does not address removal from office in any respect except as quoted in Section 301(d), immediately above. The term of office for a game commissioner under the Game and Wildlife Code is fixed, but clearly the statute
Venesky argues that the game commissioners were originally appointed to staggered terms that continue to the present and that therefore, the Game and Wildlife Code provides for de facto staggered terms. The Governor takes the position that the staggered terms ended when the General Assembly enacted the current Game and Wildlife Code, which simultaneously repealed the former game law and the section of the administrative code under which game commissioners were formerly appointed. We agree with the Governor.
Although game commissioners may have served staggered terms from 1937
Venesky makes the policy argument that the Game Commission, as an independent agency is not subject to the policy supervision of the Governor and that therefore the legislature intended that the Governor have no ability to remove appointed commissioners at will and to thereby influence commission's agenda. As tempting an argument as this is, other countervailing factors are more convincing: 1) the fact that the General Assembly omitted the staggered terms of office when it enacted the Game and Wildlife Code in 1986, and 2) the fact that the Governor already influences and to an extent controls the commission by virtue of this appointing authority. We cannot infer legislative intent not to change the commission when the changes to the statute indicate otherwise. Had the General Assembly intended that game commissioners be removed only for cause, it could have so stated, and had it intended that the Governor not be able to remove commissioners at will, it could have left in the language establishing staggered terms when it re-enacted the law in the Act of 1986-93. Because the power to remove at will resides with the appointing authority absent statutory limitations, and
In the absence of statutory language governing the removal of game commissioners or from which we might infer legislative intent to limit the power of removal, the Governor, as the appointing power, may remove game commissioners at will. Accordingly, we sustain the preliminary objections.
Judge SMITH and Judge KELLEY, dissent.
AND NOW, this 8th day of January 2002, the respondent's preliminary objections in the above-captioned matter are sustained, and this matter is dismissed.
The Act of June 21, 1937, P.L. 1865 (also repealed by Act 1986-93) had amended the administrative code to provide that game commissioners' eight-year terms "shall be staggered as provided by law."