Lackawanna County and County Commissioner Bill Gaughan will appeal a court ruling that affirmed a longstanding process for replacing commissioners who resign.
The appeal could delay the replacement of resigned Commissioner Matt McGloin for several more weeks.
Gaughan and the county filed a notice of appeal Friday with the state Commonwealth Court, which hears appeals of rulings on local government issues.
The notice does not detail why Gaughan and the county think the county court of common pleas was incorrect. The details will come in a future filing.
Gaughan declined to comment on his reasons for appeal.
“I’m going to let the eventual appeal speak for itself,” he said in a text.
In a 2-1 decision issued Thursday, a panel of Lackawanna County judges affirmed the county home rule charter process for replacing a commissioner.
The county Democratic Party used the process to recommend replacements for former Commissioner Matt McGloin.
Senior judges Carmen D. Minora and Vito P. Geroulo voted to affirm the process, but Senior Judge Robert A. Mazzoni dissented. All three ruled the county can’t be part of challenging the process because the Board of Commissioners never voted to approve a challenge.
McGloin resigned Feb. 24. Three days later, the county Democratic Party Executive Committee, meeting privately, recommended three possible replacements. They are former county planning and community director Brenda Sacco, Olyphant Council President James Baldan and Scranton School Director Bob Casey.
Gaughan — who favored Dunmore Mayor Max Conway — and the county challenged the process.
They argued state law and a judicial rule requires the common pleas judges to start over, seek new applications, conduct interviews and choose to fill the vacancy without Democratic Party input. Mazzoni agreed with Gaughan's position.
The county argued state law gave county solicitor Don Frederickson the authority to insert the county into the challenge without a vote by the commissioners.
The Democratic Party disagreed and argued its process, outlined in the county home rule charter, was the right one. The party and Commissioner Chris Chermak contended Frederickson couldn’t act without a public vote.
All the judges agreed a vote was necessary for the county to get involved.
“To permit a single commissioner without majority concurrence to unilaterally proceed in the name of the county would lead to chaotic results infused with political agendas this court is not willing to sanction,” the judges wrote.
Allowing a solicitor to do the same without a vote “can also lead to chaotic results.”
“The analogy would be to permit a lawyer to prosecute a claim on behalf of his client without authority from his client to proceed,” they wrote.
Geroulo and Minora said the idea the judicial rule trumps the charter is “fatally flawed.”
Gaughan’s lawyer, attorney Dan Brier, argued the state constitution gives the state Supreme Court power to regulate all courts in Pennsylvania.
At the same time, the state code governing counties requires county courts of common pleas to fill commissioner vacancies.
So, Brier contended, the Supreme Court, with the constitutional power to regulate common pleas courts, set up a judicial rule outlining how to fill commissioner vacancies.
That’s why the judicial rule trumps the charter, Brier argued on the county and Gaughan’s behalf.
Minora and Geroulo disagreed. They ruled the state constitution also allows home rule charters to claim any power that the constitution or state law doesn’t forbid. The constitution also expressly says its provisions for regulating county government apply to every county but home rule charter counties, they wrote.
The judicial rule “emasculates” the charter, they said. If that’s allowed to happen, judges could ignore the charter provision that requires a new commissioner come from the same party as the former commissioner, they wrote.
“The present Democratic Party vacancy can be filled with a Green, Libertarian, Socialist or a Communist replacement and, shockingly, even a Republican for a Democratic incumbent seat being vacated,” they wrote.
The rule would also remove the Democratic Party from the process entirely and would run “roughshod” over the charter, they wrote.
“All should agree that such a result could not have been the intention of the Pennsylvania Supreme Court” when it adopted the rule, Minora and Geroulo wrote.
Mazzoni disagreed.
Clearly, he wrote, the Supreme Court intended its judicial rule to apply statewide and the state constitution grants the court that power.
Mazzoni said the rule “makes the selection of a candidate more transparent and, of course, more diverse by creating a larger pool of worthy applicants.”
“(It is) a result which truly serves the ends of justice,” he wrote.
EDITOR'S NOTE: Commissioner Bill Gaughan’s lawyer, attorney Dan Brier, is a partner of the Myers, Brier & Kelly law firm. Robert T. Kelly, Jr. also is a partner of the firm and a WVIA board member.
