Pievsky v. Ridge

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

10-16-1996

Pievsky v. Ridge

Precedential or Non-Precedential:

Docket 96-7206

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7206

MAX PIEVSKY,

Appellant

v.

THOMAS J. RIDGE, in his capacity as the

Governor of the Commonwealth of Pennsylvania

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 96-cv-00116)

Argued July 17, 1996

BEFORE: SLOVITER, Chief Judge, COWEN and ROTH

Circuit Judges

(Filed October 16, l996)

Richard A. Sprague (argued)

Geoffrey C. Jarvis

Peter Konolige

Sprague & Sprague

135 South 19th Street

Wellington Building, Suite 400

Philadelphia, PA 19103

COUNSEL FOR APPELLANT

Stephanie A. Middleton

Paul A. Tufano (argued)

Office of Attorney General of

Pennsylvania

Office of General Counsel

333 Market Street

17th Floor

Harrisburg, PA 17108

COUNSEL FOR APPELLEE

OPINION

COWEN, Circuit Judge.

Former Commissioner of the Delaware River Port Authority of

Pennsylvania and New Jersey ("DRPA"), Max Pievsky, filed a

complaint challenging the Governor of Pennsylvania's power to

remove him without cause under the terms of the DRPA Compact, an

interstate agreement between the Commonwealth of Pennsylvania and

the State of New Jersey. The district court dismissed the

complaint on summary judgment, concluding that the Governor of

Pennsylvania had the power to remove DRPA Commissioners prior to

the expiration of their terms. Because we agree that, under the

terms of the DRPA Compact, the Governor of Pennsylvania has the

power to remove the appointed DRPA Commissioners at will, we will

affirm the April 12, 1996 order of the district court.

I.

Jurisdiction of the district court was invoked pursuant to

28 U.S.C. §§ 1331 and 1441(b). The construction of an interstate

compact approved by Congress presents a federal question under 28

U.S.C. § 1331. See Petty v. Tennessee-Missouri Bridge Comm'n,

359 U.S. 275, 278, 79 S. Ct. 785, 788 (1959). We exercise

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

Our review of the district court's interpretation of the

interstate compact is plenary. Peters v. Delaware River Port

Auth., 16 F.3d 1346, 1349 (3d Cir.), cert. denied, 115 S. Ct. 62

(1994).

II.

The parties stipulated to the following facts. The DRPA

derives its authority from the DRPA Compact, an interstate

agreement between the Commonwealth of Pennsylvania and the State

of New Jersey. The Compact was originally enacted by the

Pennsylvania and New Jersey legislatures in 1931 and is codified

in reciprocal statutes at Pa. Stat. Ann. tit. 36, § 3503 (1995)

and N.J. Stat. Ann. §§ 32:3-1 to 3-18 (West 1995). As required

by the Compact Clause of the United States Constitution, U.S.

Const. art. I, § 10, cl. 3, Congress originally consented to the

terms of the Compact in 1932 and thereafter consented to

amendments in 1952 and 1992.

The DRPA was created, among other things, to construct and

operate bridges across the Delaware River, to construct and

maintain facilities for the transportation of passengers between

Pennsylvania and New Jersey, and to improve and develop the ports

of Philadelphia and Camden. DRPA Compact, Article I, 36 P.S. §

3503. The DRPA has sixteen commissioners, eight of whom are

appointed from Pennsylvania and eight of whom are appointed from

New Jersey. The Compact establishes the procedure for the

appointment of the eight commissioners from Pennsylvania as

follows:

[s]ix of the eight commissioners for the Commonwealth of

Pennsylvania shall be appointed by the Governor of

Pennsylvania for terms of five years. The Auditor General

and the State Treasurer of said Commonwealth shall, ex-

officio, be commissioners for said Commonwealth, each having

the privilege of appointing a representative to serve in his

place at any meeting of the commission which he does not

attend personally.

All commissioners shall continue to hold office after

the expiration of the terms for which they are appointed or

elected until their respective successors are appointed and

qualify, but no period during which any commissioner shall

hold over shall be deemed to be an extension of his term of

office for the purpose of computing the date on which his

successor's terms expires.

DRPA Compact, Article II, 36 P.S. § 3503. Article II of the

Compact states that the New Jersey appointees must be confirmed

by the Senate of New Jersey, but does not require legislative

confirmation of Pennsylvania's appointees.

The states have significant control over the DRPA. The

Compact provides that the Board may act only by way of a majority

of each state's commissioners voting in favor of the action. In

1992, the state legislatures amended the Compact to allow each

state to pass legislation authorizing its Governor to veto the

action of any of the state's commissioners within ten days of

receipt of the minutes of the meeting at which the vote was

taken.

On December 28, 1994, former Governor of Pennsylvania Robert

Casey appointed Max Pievsky as a commissioner of the DRPA. The

commission, signed by the Governor, states that Pievsky shall

hold office until December 28, 1999. On January 22, 1996,

Pievsky received a telephone call from Leslie Gromis, Director of

Governor Ridge's Office of Public Liaison. Gromis informed

Pievsky that the Governor was disappointed in Pievsky's vote for

a new chairperson for the DRPA Board on January 17, 1996. Gromis

further stated that if Pievsky did not resign the next day, the

Governor would make an appointment to the DRPA to replace him.

III.

On January 23, 1996, Pievsky filed suit in the Commonwealth

Court of Pennsylvania seeking to enjoin Governor Ridge from

removing him as a commissioner. The Governor removed the case to

the United States District Court for the Middle District of

Pennsylvania, asserting that Pievsky's claims arise under the

laws of the United States pursuant to 28 U.S.C. §§ 1331 and

1441(b).

The district court issued an opinion and entered an order

denying Pievsky's requests for declaratory judgment and permanent

injunctive relief. In its interpretation of the Compact, it held

that the Governor may remove Pievsky prior to the expiration of

his term in 1999. Pievsky filed a notice of appeal and a motion

in the district court for a stay pending appeal. The district

court granted a stay prohibiting the Governor from removing

Pievsky pending resolution of an appeal to this Court. We

vacated the district court's grant of a stay pending appeal.

Thereafter, Pievsky was removed by the Governor as a DRPA

Commissioner. Pievsky appealed to the Supreme Court for a stay

preventing his removal from office. The application was denied.

The matter is now before us on Pievsky's appeal of the district

court's order denying his application for a declaratory judgment

and injunctive relief reinstating him to the position of

commissioner of the DRPA.

IV.

The issue we must decide is strictly one of statutory

construction. Does the DRPA Compact allow the Governor of

Pennsylvania to remove a commissioner to the DRPA at will and

prior to the expiration of his term?

A.

Since the Compact is an interstate agreement which requires

the consent of Congress, such Congressional consent transforms

the Compact into an agreement pursuant to federal law. SeeCuyler v.

Adams, 449 U.S. 433, 438, 101 S. Ct. 703, 707 (1981);

see also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275,

278, 79 S.Ct. 785, 788 (1959); Delaware River Joint Toll Bridge

Comm'n v. Colburn, 310 U.S. 419, 427, 60 S. Ct. 1039, 1041

(1940). Our interpretation of the terms and conditions of the

Compact is, therefore, governed by federal law. See Cuyler, 449

U.S. at 438, 101 S. Ct. at 707; see also Petty, 359 U.S. at 278,

79 S. Ct. at 788.

Though state law is not binding, federal courts show

deference to prior state adjudications and rulings in construing

an interstate compact. See State ex. rel. Dyer v. Sims, 341 U.S.

22, 28, 71 S. Ct. 557, 560 (1951) ("To determine the nature and

scope of obligations as between States [when] they arise through

the legislative mean of compact . . . is the function and duty of

the Supreme Court of the Nation. Of course every deference will

be shown to what the highest court of a State deems to be the law

and policy of its State . . ."); see also Petty, 359 U.S. at

278, n.4, 79 S. Ct at 788, n. 4 ("While we show deference to

state law in construing a compact, state law as pronounced in

prior adjudications and rulings is not binding"); Seattle Master

Builders Ass'n v. Pacific N.W. Elec. Power & Conserv. Planning

Council, 786 F.2d 1359, 1365 (9th Cir. 1986), cert. denied, 479

U.S. 1059, 107 S. Ct. 939 (1987) ("While congressional consent

gives an interstate compact some attributes of federal law, the

Council members' appointment, salaries, and administrative

operations are pursuant to the laws of the four individual

states, within parameters set by the Act.").

B.

The Compact is merely an agreement between states that has

received the imprimatur of Congress. The interpretation of the

Compact must be grounded and based upon the very language of the

instrument. See Texas v. New Mexico, 482 U.S. 124, 128, 107 S.

Ct. 2279, 2283 (1987). The Compact between Pennsylvania and New

Jersey states that "[s]ix of the eight commissioners for the

Commonwealth of Pennsylvania shall be appointed by the Governor

of Pennsylvania for terms of five years." DRPA Compact, Article

II, 36 P.S. § 3503. It does not explicitly state whether the

commissioners may be removed by the governor prior to the

expiration of their term.

The long-standing rule in the context of federal

appointments is that "[i]n the absence of specific provision to

the contrary, the power of removal from office is incident to the

power of appointment." Keim v. United States, 177 U.S. 290, 293,

20 S. Ct. 574, 575 (1900); accord Myers v. United States, 272

U.S. 52, 161, 47 S. Ct. 21, 40 (1926); see also Kalaris v.

Donovan, 697 F.2d 376, 389 & n. 54 (D.C. Cir.) cert. denied, 462

U.S. 1119 (1983) (quoting Cafeteria & Restaurant Workers Union v.

McElroy, 367 U.S. 886, 896, 81 S. Ct. 1743, 1749 (1961)).

Pennsylvania has also adopted this principle of law. SeeAmerican Fed'n of

State, County, and Mun. Employees v. Shapp, 280

A.2d 375, 377 (1971); see also Commonwealth ex. rel. Haymaker v.

Black, 50 A. 1009 (1902). The Compact explicitly gives the

Governor of Pennsylvania the power to appoint six commissioners

to the DRPA. Accordingly, pursuant to federal law, there is a

presumption that the Governor also has the authority to remove

those six commissioners prior to the end of their terms.

Pievsky argues that since the DRPA Commissioner's term of

office is five years, as compared to the Governor's four year

term of office, the Pennsylvania legislature and Congress

intended to limit the Governor's power of removal. We disagree.

The fact that the Governor's term of office is shorter than that

of the commissioners does not indicate an intent on the part of

the legislature to limit the Governor's ability to remove his

appointees. If the Pennsylvania legislature intended such a

limitation, it would have stated so in the Compact. Instead, the

Compact simply reads that the Governor of Pennsylvania shall

appoint a DRPA Commissioner for a term of five years. Since the

power to remove is incident to the power to appoint, we hold that

under the terms of the Compact the Governor of Pennsylvania has

the authority to remove a DRPA Commissioner at will.

We believe that the difference in the length of terms of

office is irrelevant. Since the Compact provides that

commissioners may hold office after the expiration of the term

for which they are appointed, and "no period during which any

commissioner shall hold over shall be deemed to be an extension

of this term of office for the purpose of computing the date on

which his successor's term expires," DRPA Compact, Article II,

36 P.S. § 3503, a commissioner's term of office may in fact be

for four years or less. This would occur if a commissioner is

succeeding a prior commissioner who has continued to hold office

after the expiration of his term of office.

Pievsky also contends that interpreting the Compact to

permit the Governor to remove a commissioner at will vitiates the

plain language of the Compact which provides that six of the

Commonwealth's commissioners "shall be appointed by the Governor

of Pennsylvania for terms of five years." He asserts that five

years means five years, and not less than five years. We are not

persuaded. It is a long-standing rule in the federal courts that

a fixed term merely provides a time for the term to end. The

fixed term is merely a "cap" with the appointee removable at

will. See Parsons v. United States, 167 U.S. 324, 17 S. Ct. 880

(1897). We read the term "five years" as a means of limiting the

length of the term of office, not as a prohibition on the

Governor's removal authority.

C.

Pievsky next maintains that under federal law the terms of

the DRPA Compact evidence an intent by the legislatures to limit

the Governor's removal power because the Compact states that six

of Pennsylvania's commissioners "shall be appointed by the

Governor . . . for terms of five years." Compact art. II. The

case law cited by Pievsky in support of his argument are readily

distinguishable. In Humphrey's Executor v. United States, 295

U.S. 602, 55 S. Ct. 869 (1935), the Supreme Court reviewed

President Roosevelt's attempt to remove a member of the Federal

Trade Commission ("FTC"). Pursuant to the Federal Trade

Commission Act, 15 U.S.C. §§ 41, 42, commissioners of the FTC

were appointed for fixed rotating terms. The Federal Trade

Commission Act provides that "[a]ny commissioner may be removed

by the President for inefficiency, neglect of duty, or

malfeasance in office." 15 U.S.C. § 41. The Supreme Court held

that in light of the statutory language limiting removal, "the

fixing of a definite term subject to removal for cause, unless

there be some countervailing provision or circumstance indicating

the contrary, which here we are unable to find, is enough to

establish the legislative intent that the term is not to be

curtailed in the absence of such cause." Humphrey's Executor,

295 U.S. at 624, 55 S. Ct. at 872. The statute at issue in

Humphrey's Executor contained clear language limiting the removal

authority of the President -- such language is absent from the

Compact.

Moreover, the Supreme Court in Humphrey's Executorconsidered the

character of the commission as an essential basis

for its holding. The Court determined that the FTC was a

nonpartisan body, charged "with the enforcement of no policy

except the policy of the law", and that "[i]ts duties are neither

political nor executive, but predominantly quasi judicial and

quasi legislative." 295 U.S. at 624, 55 S. Ct. at 872. The

Humphrey's Executor court noted that

[I]t is quite evident that one who holds his office only

during the pleasure of another, cannot be depended upon to

maintain an attitude of independence against the latter's

will.

295 U.S. at 629, 55 S. Ct. at 874. Accordingly, the Humphrey's

Executor Court concluded that the President did not have the

authority to remove a member of the FTC prior to the expiration

of that member's term of office for reasons in addition to those

specifically stated in the statute. In contrast, the DRPA is

neither a quasi legislative or quasi judicial body. Also, in

contrast to the character of the FTC, the DRPA is a politically

sensitive body that must be responsive to the programs and

policies of the administration presently in office.

We have previously discussed how the DRPA officers must be

politically accountable in Peters v. Delaware River Port

Authority, 16 F.3d 1346, 1354-55 (3d Cir.), cert. denied, 115 S.

Ct. 62 (1994). In Peters, the Secretary of the DRPA brought suit

claiming that the DRPA infringed his constitutional rights of

free speech and association by failing to reappoint him as its

Secretary solely because he was a member of the New Jersey

Republican Party. We rejected his claim, finding that party

affiliation of the officers of the DRPA was relevant to the

effective functioning of the DRPA. We stated,

The DRPA has broad powers, leaving much room for principled

disagreement on policy goals or their implementation.

. . .

The policy and political issues, including economic

considerations, arising in an entity such as the DRPA are

many. If tolls are raised, bridges fall into disrepair, or

traffic is congested, there are surely political

consequences. Whether decent roads and transit systems will

be made available to all segments of the communities, or

will be provided in a manner perceived as favoring some or

excluding others, raises important and sensitive social,

economic and political questions. . . . Since the governors

of New Jersey and Pennsylvania directly appoint fourteen of

the sixteen member Board of Commissioners, political

responsibility for the DRPA's successes and failures can be

expected to fall on the ruling administration of each state.

. . .

Obviously, the party affiliation or policy views of the

officers in the DRPA could be relevant to the effective

presentation and implementation of particular policy goals.

If the states preferred huge increases in spending for the

construction of bridges, for example, they might

legitimately prefer that high positions in the DRPA not be

filled with individuals belonging to a party which advocates

decreased government spending.

16 F.3d at 1355. Therefore, the DRPA Commissioners must be

accountable to the administration in office in order for the DRPA

to function properly.

The goals of each state are accomplished only through the

DRPA's responsiveness to each state. In order to ensure such

responsiveness, the Governor must have the authority to remove

Pennsylvania's appointed commissioners. The fact that

Pennsylvania's representation on the Commission is comprised

exclusively of Executive Department appointees and officials

lends support to the conclusion that the DRPA is meant to be

responsive to the Executive Branch of the Commonwealth of

Pennsylvania. Six of Pennsylvania's eight commissioners are

appointed by the governor, and the remaining two members who

serve ex-officio are the State Treasurer and the Auditor General,

both of whom are officers of the Executive Department. Compact

art. II; 36 P.S. § 3503. The ability of the Governor to remove

DRPA Commissioners ensures that the commissioners are politically

accountable to each state's administration. This case is clearly

distinguishable from the Supreme Court's holding in Humphrey's

Executive.

The facts underlying Wiener v. United States, 357 U.S. 349,

78 S. Ct. 1275 (1958) are also distinguishable. In Wiener, the

Supreme Court reviewed President Eisenhower's attempt to remove a

member of the War Claims Commission ("WCC"). Congress

established the WCC to adjudicate claims by United States

citizens against Japan as a result of World War II. The statute

was silent with regard to the removal of members of the WCC. It

provided that the commissioners' terms would expire

simultaneously with the life of the Commission. The Supreme

Court concluded that the adjudicatory nature of the task imposed

by Congress on the WCC lead to the conclusion that Congress did

not leave room for the President to remove members and replace

them with individuals of his own choosing. The Court stated,

If, as one must take for granted, the War Claims Act

precluded the President from influencing the Commission in

passing on a particular claim, a fortiori, it must be

inferred that Congress did not wish to have hang over the

Commission the Damocles' sword of removal by the President

for no reason other than that he preferred to have on that

Commission men of his own choosing.

Wiener, 357 U.S. at 356, 78 S. Ct. at 1279. Here, the DRPA does

not perform any tasks that may be classified as adjudicatory. In

contrast to the WCC, the Compact between Pennsylvania and New

Jersey envisions that the administration of each state would

influence the DRPA in deciding which policies to implement and

which goals to pursue.

We also find that Borders v. Reagan, 518 F. Supp. 250 (D.

D.C. 1981), order vacated as moot, 732 F.2d 181 (D.C. Cir. 1982),

is distinguishable. In Borders, the district court held that

President Reagan could not remove at will a member of the

District of Columbia Judicial Nominating Commission that

President Carter had appointed. The District of Columbia Self-

Government and Governmental Reorganization Act ("Act") provides

that the Commission would consist of seven members who "shall

serve" for terms of six years, except for the member appointed by

the President who "shall serve" for a term of five. 11 D.C.Code

App. § 434 (Supp. IV 1977). The Act made no provision for the

removal of commission members.

The district court in Borders held the language of the

statute made clear that Congress did not intend a member of the

commission would serve only at the pleasure of the appointing

authority; rather, once an appointment was made it anticipated

that the member would serve a complete term. The plain language

of the Act provides that a member "shall serve" for the term of

years. The Act makes no provision for the removal of a member,

but does provide for the appointment of a member when a vacancy

occurs. The district court noted that the Act contemplated that

vacancies would occur only at the expiration of a given term:

The Act provides that for vacancies occurring "other than [upon]

the expiration of a prior term," the new member would serve only

for the "remainder of the unexpired term of his predecessor."

Act at § 434(b)(2). Thus, even if Borders were binding on us,

the district court's conclusion in that matter that Congress did

not intend a commissioner to be removed at will is

distinguishable.

The plain language of the DRPA Compact does not indicate, as

the language of the statute in Borders did, that the state

legislatures contemplated vacancies on the DRPA Board would occur

only at the expiration of DRPA members' expired terms. Moreover,

the court's decision in Borders rested on additional grounds that

are not present in this case. The Act provided for staggered

terms for six of the commissioners, which the court determined

was evidence of Congressional intent that the members be isolated

from political considerations and political changes.

Pievsky also asserts that the DRPA is an interstate entity

which is not under the control of the Commonwealth of

Pennsylvania or the State of New Jersey. He cites Hess v. Port

Authority Trans-Hudson Corp., __ U.S. __, 115 S. Ct. 394 (1994),

for the proposition that "[b]ecause Compact Clause entities owe

their existence to state and federal sovereigns acting

cooperatively, and not to any 'one of the United States,'...their

political accountability is diffuse; they lack the tight tie to

the people of one State that an instrument of a single State

has." 115 S. Ct. at 401. We agree that the DRPA is not under

the control of any one state. As we stated in Peters the DRPA is

"not designed to further the political agenda of any one state or

administration." Peters, 16 F.3d at 1355. Nevertheless,

pursuant to the appointing process, Pennsylvania-appointed DRPA

officials are under the control of the Pennsylvania Governor,

just as New Jersey-appointed DRPA Commissioners must be

politically accountable to the Governor of New Jersey.

D.

As previously discussed, in Humphrey's Executor the Supreme

Court stated "the power of the President to remove an officer

shall prevail over the authority of Congress to condition the

power by fixing a definite term and precluding a removal except

for cause will depend upon the character of the office." 295

U.S. at 631-32, 55 S. Ct. at 875. In Morrison v. Olson, 487 U.S.

654, 108 S. Ct. 2597 (1988), the Supreme Court clarified the

meaning of the "character of the office" inquiry that courts must

undertake in assessing whether Congress has impermissibly

restricted the executive branch's authority to remove an

appointed official. The Morrison Court was faced with the

question of whether the provisions of the Ethics in Government

Act impermissibly restricted the Attorney General's ability to

remove the independent counsel. The Court stated that the

legitimacy of congressional limitations on the chief executive's

powers of removal turns upon "whether the removal restrictions

are of such a nature that they impede the President's ability to

perform his constitutional duty, and the functions of the

officials in question must be analyzed in that light." Id. at

690-91, 108 S. Ct. at 2619.

The Morrison Court went on to hold that the Act did not

impermissibly interfere with the President's ability to perform

his constitutional duty because, though the President could not

remove the independent counsel at will, the statute provided that

the President, through the Attorney General, could remove the

independent counselor for good cause. The Supreme Court reasoned

that this ability gives the President "ample authority to assure

that the counsel is competently performing his or her statutory

responsibilities . . . ." Id. at 692, 108 S. Ct. at 2620.

Pievsky's case is distinguishable from Morrison because the

"character of office" analysis is based on a separation of powers

inquiry which is not at issue here; and in any event, here, the

Governor's inability to remove DRPA Commissioners prior to the

expiration of their terms would impede his ability to carry out

his functions as Chief Executive of the Commonwealth of

Pennsylvania. As Governor, the defendant in this case is charged

with ensuring that the laws of the state are "faithfully

executed." Pa. Const. art. II, § 2. The Governor's obligation

to ensure the proper functioning of the DRPA is one of the duties

charged to him pursuant to the Commonwealth's Constitution.

Moreover, 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 the

judges of the courts of record, may be removed at the

pleasure of the power by which they shall have been

appointed.

Pa. Const. art. VI, § 7. Pievsky is neither a "judge of the

courts of record," nor "a civil officer elected by the people."

Absent language in the Compact to the contrary, which we do not

find, the Governor's constitutional duty includes removing

appointed officials at his pleasure. Because the Compact does

not limit the Governor's removal power, the Governor may exercise

his power under the Pennsylvania Constitution to remove appointed

officials to the DRPA Board. We agree with Pievsky's contention

that the Compact is in the nature of federal law, and, under the

Supremacy Clause of the U.S. Constitution, could limit the

Governor's ability to remove his appointed officials. However,

as discussed above, we conclude under a federal law analysis that

the legislatures which passed the Compact did not intend to

restrict the Governor's ability to remove DRPA Commissioners in

this manner.

The appointed members of the DRPA are "policy makers" who

exercise executive powers and are expected to carry out the

policies of the current administration of each state; they are

not comparable to the commissioners of the FTC, the commissioners

of the WCC, or the independent counsel in Morrison. Far from

needing independent appointees, "the DRPA needs officers who are

capable of efficiently, effectively, and loyally accessing the

political channels that influence the DRPA's agenda and

direction." Peters, 16 F.3d at 1356. Considering the mission of

the DRPA, and the burden that inter-state conflicts place on the

effective functioning of this bi-state authority, the

legislatures could not have intended to create a board on which

Pennsylvania's members are independent of the current Governor.

E.

Though state law is not binding, federal courts show

deference to prior state adjudications and rulings in construing

an interstate compact. See State ex. rel. Dyer v. Sims, 341 U.S.

22, 28, 71 S. Ct. 557, 560 (1951). Pennsylvania law is in accord

with federal law that the Pennsylvania Governor may remove a DRPA

commissioner at will and prior to the expiration of the term.

The removal of state officers in Pennsylvania is governed by the

Commonwealth's Constitution which provides that "[a]ppointed

civil officers, other than the judges of the courts of record,

may be removed at the pleasure of the power by which they shall

have been appointed." Pa. Const. art. VI, § 7. In the absence

of statutory language providing otherwise this constitutional

provision governs the removal of appointed officials. Watson v.

Pennsylvania Turnpike Comm'n, 125 A.2d 354, 356-57 (Pa. 1956).

The legislature may "impose such terms and limitations with

reference to the tenure and removal of an incumbent [state

official] as it sees fit." Id. at 356.

The Pennsylvania Supreme Court has held that where a statute

provides for fixed terms with staggered expiration dates, the

legislature intended that those appointed shall not be removable

at the will of the appointing authority. Id. at 356-57; see

alsoCommonwealth ex. rel. Sortino v. Singley, 392 A.2d 1337 (Pa.

1978); Bowers v. Pennsylvania Labor Relations Bd., 167 A.2d 480,

484-85 (Pa. 1961); Commonwealth ex. rel. Hanson v. Reitz, 170

A.2d 111 (Pa. 1961). However, the mere fixing of a definite term

does not override the dictates of Article VI, § 7 of the

Constitution which gives removal power to the appointing

authority. See Schluraff v. Rzymek, 208 A.2d 239 (Pa. 1965)

(plaintiff appointed to fixed term removable at-will); see alsoNaef v.

City of Allentown, 227 A.2d 888, 890-891 (Pa.

1967)(plaintiff appointed to fixed term of four years removable

at-will; "solicitor is an important confidant . . . in the

administration of the city's business. To hold that one who is

unacceptable must be retained in such a position would lead to a

seriously disturbed municipal situation."); Commonwealth ex. rel.

Schofield v. Lindsay, 198 A. 635 (Pa. 1938). Pennsylvania case

law provides that the staggering of terms, not the mere fixing of

a definite term in office, bars the Governor from removing an

appointed official at will. See Naef, 227 A.2d at 890; see alsoSchluraff,

208 A.2d at 239. Therefore, in light of the fact that

the DRPA Commissioners' terms are fixed and not staggered, the

Pennsylvania Constitution, as interpreted by the Pennsylvania

Supreme Court, does not preclude the Governor from removing

Pievsky prior to the expiration of his term.

We note that the Pennsylvania Attorney General has

officially opined that Pennsylvania's appointees to the DRPA are

removable at will. See Pennsylvania Attorney General's Official

Opinion, No. 280 issued on March 24, 1939 at 1939-40. Article

VI, Section 4 was renumbered as Article VI, Section 7 in 1966.

Pennsylvania courts and state agencies accord deference to the

formal opinions of Pennsylvania's Attorney General on matters of

statutory interpretation. Baird v. Township of New Britain, 633

A.2d 225, 229 n. 7 (Pa. Commw. Ct. 1993), allocatur denied, 642

A.2d 488 (1994); see also Schell v. Eastern York Sch. Dist., 500

A.2d 896 (Pa. Commw. Ct. 1985). We note that the Attorney

General of New Jersey has also issued an opinion that the

Pennsylvania appointees to the DRPA Board are removable at will

by the Governor of Pennsylvania. Def.'s Supplemental Appendix,

Memorandum from Attorney General George F. Kugler, Jr. to

Governor William T. Cahill, October 6, 1971. We need not decide

the extent of deference due in this situation in light of all the

other convincing bases for our conclusion that by reason of the

state constitutional provisions governing the removal of

appointed officials, and given that the DRPA commissioners' terms

are fixed and not staggered, the Governor has the power to remove

appointed DRPA Commissioners at will.

V.

For the foregoing reasons, we conclude that the Governor of

Pennsylvania has the power to remove an appointed DRPA

Commissioner at will and prior to the expiration of the term.

Accordingly, we will affirm the order of the district court

entered on April 12, 1996. Each party to bear its own costs.