Lackawanna County’s common pleas court judges postponed interviewing candidates Wednesday to replace former County Commissioner Matt McGloin.
Instead, the judges decided to hold a hearing soon on Commissioner Bill Gaughan’s request that the judges start the process all over again and manage it entirely themselves.
The court gave the county Democratic Party until April 7 to explain why Gaughan is wrong.
County solicitor Don Frederickson filed the request Monday on behalf of the county and Gaughan. The request contends the county Democratic Party’s selection process that recommended three candidates ignored state law.
His request says procedures in the state county code and a state court rule for filling commissioner vacancies trump the county home rule charter’s vacancy-filling procedure. He argues the code and rule require the judges to take applications, interview candidates themselves and pick McGloin’s replacement.
The home rule charter outlines county government's structure and includes various rules for running it.
The background
McGloin, a Democrat, resigned Feb 24. The home rule charter gives the party of a resigned elected official five calendar days to recommend three replacements to the judges, who must pick one of the three.
Based on that, the county Democratic Party executive committee met Feb. 27 and voted to recommend three people to replace McGloin: former county planning and economic development director Brenda Sacco, Olyphant Council President James Baldan and Scranton School Director Bob Casey.
Gaughan, who wanted Dunmore Mayor Max Conway to replace McGloin, has repeatedly criticized the nature of the Democratic Party’s selection process for secrecy. Patrick has declined to reveal the names of the 18 people who applied for the vacancy and barred all but committee members from being present for the vote.
The judges planned to interview Sacco, Baldan and Casey on Wednesday, but postponed that to hear Gaughan's request first. The court said it would schedule a hearing.
What Gaughan thinks
In a statement, Gaughan said he respects the court's decision to delay the interviews.
"It is an important legal issue on which the courts should have the final word. We respect the judicial process. (We) won’t comment any further while the judicial process unfolds," he said.
In an interview, county Democratic chairman Chris Patrick said the party will contest Gaughan's request.
"The Supreme Court ruling never intends to overrule the county's home rule charter," Patrick said. "But we will give a very valid and thorough argument as to why their petition is wrong and the home rule charter is correct."
Gaughan’s petition points out the county code says common pleas court judges must appoint a replacement who comes from the same party as the commissioner who left office.
In 2019, the state Supreme Court “established the statewide procedure for courts of common pleas” to follow when filling vacancies under the county code, his petition says.
The procedure, Gaughan’s petition says, is outlined under Rule 1908 of the Pennsylvania Rules of Judicial Administration.
It says the court will “receive applications from any interested candidates for the position” and set a deadline for applying.
The names will be public and available to anyone who asks for a list, the rule says. The common pleas court judges will vote on the candidates and the president judge will break any tie.
“The courts of common pleas are without power to adopt or implement procedures that are inconsistent with rules established by the Supreme Court,” the petition says. “The Democratic committee’s secret candidate pre-selection process is anathema to the transparency and inclusiveness enshrined in” the Supreme Court rule.
The petition notes the Democrats acted before McGloin’s vacancy was accepted by the commissioners and before the court ordered the committee to re-submit names.
County solicitor Don Frederickson sent the judges a letter Feb. 27 outlining essentially the Gaughan view of how the process should work.
"I just wanted them to be aware of it," Frederickson said in an interview at the time.
Despite that, the judges set the interviews after the county Democrats resubmitted the same three names to comply with a new court-ordered deadline.
Court administrator Frank Castellano said the judges settled on their procedure after consulting with the state Administrative Office of Pennsylvania Courts, the state court system’s administrative arm.
Castellano declined to provide a copy of the advice the court office offered.
The Democratic Party position
In a March 2 letter to the judges, county Democratic Party attorney Adam C. Bonin called Frederickson's Feb. 27 letter "mistaken."
Bonin said the county code provision, just as the charter does, allows the judges to pick the replacement. But the Supreme Court rule for filling vacancies does not apply when a home rule charter has a procedure, he contends.
Besides that, the Supreme Court rule is meant as an internal procedure and shouldn't trump a charter that county voters adopted, he wrote.
Allowing that "would raise profound separation of powers concerns" between the court and a county's right to govern itself, he wrote.
Commissioner Chermak's objection
Another issue may complicate the case, too.
In public statements this week, including a commissioners meeting Wednesday, Commissioner Chris Chermak, a Republican, objected to Frederickson challenging the selection process in court without a vote by the remaining commissioners.
During the meeting, shown on ECTV's YouTube channel, Chermak said he objects to spending county money to pay lawyers to resolve a political matter.
"I cannot stand idly by while commissioner Gaughan uses taxpayer money to further his own political agenda," he said.
In a letter Tuesday to attorney Dan Brier, who represents the county and Gaughan, attorney Paul J. LaBelle, Chermak's solicitor, warned the county would not pay Brier, and Gaughan would have to pay any legal bills.
LaBelle called Gaughan's challenge "improper, unauthorized and illegal." He reiterated his contentions in a filing with the judges Wednesday, saying only Gaughan authorized the request.
Frederickson disagreed during the commissioners' meeting and in a telephone call later.
He said the filing did not require a vote by the commissioners. He cited a county code provision that authorizes county solicitors to take legal action "when the rights, privileges, properties, claims or demands of the county are involved."
During the meeting, LaBelle called that provision nothing more than "a job description" for county solicitors, not authorization to take legal action.
Gaughan denied having a political agenda.
"And I never have had a political agenda," he said. "This is to further transparency and honesty, transparency and honesty. And how anyone would not want to sign on to that, I think that tells you a lot about the person."
