COMMONWEALTH OF PENNSYLVANIA BEFORE THE STATE BOARD OF EDUCATION IN RE: REGEN =n APPLICATION OF ERIE COUNTY : Docket No, 2019-001 : SEEKING TO ESTABLISH A COMMUNITY: JAN 08 Giza COLLEGE PA.STATE Bo, OF EDUCATION ANSWER TO PETITION TO INTERVENE OF SENATOR JOSEPH SCARNATI, 111 Pursuant to 1 Pa, Code § 35.35, the County of Erie (“County”), by and through its undersigned counsel, files the within answer to the petition to intervene filed by Senator Joseph Scarnati, II] (“Senator Scarnati” or “Petitioner”). In support hereof, the County avers as follows: INTRODUCTION Petitioner Scar: seeks to intervene as a party in this matter, on the grounds that he is a Pennsylvania Senator, and to otherwise advance the interests of the Northern Pennsylvania Regional College (*NPRC”), As indicated below, Petitioner has failed to establish that he may intervene as a matter of right, or of grace, under the applicable provisions of the General Rules of Administrative Practice and Procedure ("GRAPP”), which governs these proceedings, or under any binding legal precedent, To the contrary, and as more specifically set forth in paragraph 29 below, the Pennsylvania Supreme Court has specifically limited the ability of legislators to intervene in their official capacity in court proceedings. Additionally, NPRC has filed its own petition to intervene, which the County is not opposing, and consequently, NPRC’s interests (to the extent this Board recognizes that they are relevant to this matter) will be adequately represented during the hearing. Finally, Petitioner has had ample opportunity to address this Board during prior meetings/hearings, and through written correspondence outlining his ‘opposing viewpoint to the County’s Plan, over the past two years. Thus, he has been heard, and 1961994604may well be heard further as a witness if his testimony on a specific relevant issue is established to be admissible. There is no reason, or legal basis under the GRAPP or other decisional authority, to make him a party going forward. Accordingly, and as further indicated herein, his, petition should be denied, 1, Itis admitted that Petitioner is a member of the Pennsylvania State Senate, and is the President Pro Tempore of that body. It is denied that Petitioner was authorized by formal action of the Senate to intervene in this matter, or otherwise o act on behalf of the Senate at large. Indeed, there is not a single averment in the Petition that indicates that the General Assembly of this Commonwealth has taken any action to authorize any of its members to intervene in these proceedings, or to oppose the application submitted by the County that is presently before this Board. 2. Admitted. 3, Admitted. 4, Admitted. Admitted. 6. Denied as stated. It is admitted that the July 12, 2017 meeting minutes of the Board's Council of Higher Education (“Council”) indicates that the County's Proposal for the Establishment of a Public Community College in Erie County, Pennsylvania (the “Plan'”) was submitted to the Board on July 3, 2017, and discussed at the Council’s July 12, 2017 meeting. ‘The County is without information sufficient to determine the truth of the remaining averments of this paragraph, and therefore denies same, 7. Denied as stated. It is admitted that the Council voted unanimously at its meeting on July 12, 2017 to approve the following resolutions: (i) to appoint a Special Committee on thePlan; and (ii) to request the Department of Education to review the Plan and make a report to the Board of its findings and recommendations. The action undertaken by the Council was announced at the Board’s meeting on July 13, 2017. In further response, the Department of Education (“Department”) completed its review of the County's Plan and submitted its findings in a report dated October 28, 2019, in which it conclusively found that the Plan met all of the requirements enumerated in Section 19-1902-A(d) of the Public School Code, as well as the Guidelines for the Establishment of Public Community Colleges in Pennsylvania, adopted by the Department in August of 2016. 8 Denied as stated. It is admitted that the Committee held its first meeting on September 13, 2017, during which it (i) scheduled a publie hearing in Erie for October 10, 2017 to provide an opportunity for local community input; and (fi) took action to initiate consultation with the Governor’s office on the number of community colleges that could be approved for participation in the next fiscal year per Section 1902-A of the Public School Code. In further answer, Governor Tom Wolf responded by way of two letters to the Board on October 28, 2019: the first confirming that fifleen community colleges could be approved for participation in the upcoming fiscal year; and the second expressing his support for the establishment of a community college in Erie. 9, Denied as stated. It is admitted that during its December 19, 2017 meeting, the Committee approved a supplemental information request to the County seeking clarifying information regarding the Plan, which was thereafter communicated to the County. The County provided detailed information in response to the Committee’s request on February 16, 2018, 10, Denied as stated, It is admitted only that no formal action was taken by the Board at its November 14, 2019 meeting regarding the approval of the Plan.LU. Admitted upon information and belief. 12, Admitted. 13. Admitted. 14, It is admitted that Senator Scamnati has filed a petition to intervene. It is denied that he has satisfied the requirements for intervention pursuant to GRAPP, or that his intervention in this matter would be appropriate. 15. It is admitted that GRAPP provides a limited basis for intervention as of right. It is specifically denied that Petitioner qualifies for intervention as of right in this matter. It is further denied that Petitioner is representing the interests of the General Assembly. 16, It is admitted that 1 Pa, Code § 35.28 sets forth the exclusive eligibility requirements to intervene in matters before this Board. 17, Denied as stated. It is admitted that the Pennsylvania Senate is one of two Houses that comprise the General Assembly of Pennsylvania, which is one of the branches of state government established by the Pennsylvania Constitution. It is specifically denied that the case cited by Petitioner stands for the proposition that the Pennsylvania Senate falls under the definition of “Commonwealth” for purposes of intervention under 1 Pa, Code § 35,28. To the contrary, in the Moyer case, the United States District Court for the Eastern District of Pennsylvania found that the Pennsylvania Senate was the alter ego of the Commonwealth for purposes of the Eleventh Amendment (o the United States Constitution. See Moyer v. Conti, 2000 WL 1478791, at *11 (E.D. Pa, Oct, 5, 2000), ‘That decision has no bearing or precedential value as it relates to Petitioner’s standing to intervene in this matter. 18. Denied as stated. It is admitted that Petitioner, when acting in his official capacity, is an officer of the Pennsylvania Senate, as established by the PennsylvaniaConstitution, It is denied that Petitioner is “an officer of the Commonwealth” as that term is used in | Pa, Code § 35.28(b), for purposes of the instant petition, It is further denied that the case cited by Petitioner stands for such proposition. Rather, the Pennsylvania Supreme Court in Dep't of Env. Res. v, Jubelirer held that the Pennsylvania Senate is “the Commonwealth’, and its President Pro Tempore an officer thereof, for the limited purpose of invoking the cutomatic supersedeas provisions of Rule 1736 of the Pennsylvania Rules of Appellate Procedure. Petitioner's attempt to ascribe a broader reading to that decision is belied by the plain language of the Court's opinion. See Dep't of Env. Res. v. Jubelirer, 614 A.2d 199, 201 (Pa. 1989). The Pennsylvania Rules of Appellate Procedure are inapplicable to this proceeding, and consequently, the Jubilirer decision has no bearing on the outcome of Senator Searnati’s petition to intervene under 1 Pa. Code § 35.28. 19. Denied. Petitioner seeks to have this Board rule that he may intervene as a matter of right in this proceeding pursuant to 1 Pa, Code § 35.28(b), merely because he serves in the of President Pro Tempore of the Pennsylvania Senate, However, he has not offered a capi single authoritative decision that has found the a Pennsylvania Senator falls within the definition of the Commonwealth, for purposes of that section of GRAPP. Likewise, although he purports to “represent the interests of the General Assembly”, his petition offers nothing to substantiate that he has been specifically authorized by the General Assembly to represent its interest in this particular matter, or to speak on its bebalf, Petitioner cannot simply declare that he is representing the interests of the entire legislative body of this Commonwealth, without official action by the General Assembly cloaking him with that authority prior to the filing of the petition for intervention, To interpret the Rule otherwise would permit any (or every) member of the House of Representatives and the Senate to intervene as of right in any administrative hearingunder GRAPP, resulting in chaos and the potential for the political hijacking of administrative decision-making, Moreover, the interests of the General Assembly are already being represented by the statutory appointments of two members from each House to this Board. In sum, Petitioner has not met his burden to establish that he qualifies for intervention as of right under 1 Pa, Code § 35.28(b) in this proceeding, 20. Denied, In apparent recognition that he does not qualify for intervention as of right under Section 35.28(b), Petitioner also seeks to intervene under the permissive standing requirements of Section 35,28(a). Rather than cite to legal authority that has interpreted the specific standing requirements of GRAPP, Petitioner cites to two cases involving intervention under Rule 2327 of the Pennsylvania Rules of Civil Procedure. Pa.R.C.P, 2327 sets forth a completely different standard, and is inapplicable to this proceeding. Additionally, it is specifieally denied that this Board is required to grant a petition to intervene “when the determination of such action may affect any legally enforceable interest of the individual or party seeking to intervene”, as alleged by Petitioner here. It is well established that granting or denying a petition to intervene pursuant to Section 35.28(a) of GRAPP is within the sound discretion of the agency involved. W. Chester Area Sch. Dist. v. Collegium Charter Sch., 571 Pa, 503, 526, 812 A.2d 1172, 1186 (2001). As stated by the Commonwealth Court in Shawnee Tabernacle Church v. Pa, State Ethies Comm'n, “[whhile Section 35.28 establishes criteria for a third party's eligibility to intervene in a proceeding before an administrative agency, that section does not require the agency to grant intervention.” Id., 76 A.3d 117, 126 (Pa. Cmwith. 2012). Rather, even where the petitioner satisfies all of the criteria set forth in the regulation, the agency ‘may exercise its discretion to deny intervention, Id. See also Pa. Dental Ass'n v. Ins, Dep't, 122 Pa, Commw. 241, 551 A.2d 1148, 1151 (2010).21. Denied, Petitioner sets forth a sweeping legal proposition, but then cites to a case that does not support that proposition. Deweese v. Weaver (Deweese 1), 824 A.2d 364 (Pa. Cmuwlth, 2003), involved preliminary objections filed by the Secretary of Pennsylvania to a petition for review filed in the original jurisdiction of the Commonwealth Court by two members of the House of Representatives seeking to have certain amendments to the Judicial Code declared unconstitutional. The basis for the preliminary objections was that the petition for review failed to state a cause of action ~ not that the petitioners lacked standing. ‘The decision of the court did not consider the standing of the petitioners at all, nor did it discuss or rule upon the elements of standing in relation to the petitioners. Consequently, it provides no precedential authority on issues associated with standing, Finally, the issue in this matter does not involve a challenge to legislation (which would be beyond the purview of this Board), and consequently, the legal proposition cited is not relevant to Petitioner’s request to intervene. 22, Admitted upon information and belief. 23, Denied as stated. Article XIX-G of the School Code speaks for itself, and the County refers this Board to the actual text to determine what it provides 24, Denied as stated. The legislative purpose is set forth in the provisions of Article XIX-G, which is a writing that speaks for itself. It is specifically denied that the Article identifies Erie County as a targeted area for the legislation. 25. Denied as stated. It is admitted that the County’s application before this Board was filed on June 30, 2017, The County is without information sufficient to determine when NPRC was first established. It is further denied that NPRC is adequately serving the same area that the proposed Erie County Community College would serve, The County refers the Board toits application which outlines in great detail the service area and its unmet needs by any current higher education offerings. 26. Denied. For the reasons set forth in the County’s application, the proposed Community College would not provide duplicative services. Such was the finding of the Pennsylvania Department of Education in its report dated October 28, 2019, wherein it stated: “While there are a number of posisecondary institutions in Erie County, there continues to be unmet educational need. Based on PDE’s review of enrollment rates and a comparison of tuition at the existing institutions within Erie County, our determination is that the area is not adequately served by established institutions of higher education.” Report, p. 9. It is further denied that the proposed Community College would be destructive to NPRC. As previously stated, the NPRC is not adequately serving the needs of Erie County relative to post-secondary education. Finally, it is denied that the proposed Community College would frustrate the purpose and intent of the General Assembly. ‘The purpose and intent of the General Assembly with regard to the establishment of community colleges is set forth in Article XIX-A of the School Code, which has granted this Board the authority to approve plans to establish community colleges provided that (i the local sponsor has @ population of a sufficient number to assure a sustained minimum enrollment; (ii) has sufficient wealth to financially support such a college; and (iii) is not adequately served by established institutions of higher learning; without further approvals from any other governing body of this Commonwealth. See 24 P.S. § 19-1902-A(@). The General Assembly expressly authorized this Board to adopt policies and regulations to carry out this legislative mandate, This Board adopted regulations which codified the following policy regarding the establishment of community colleges: “The policy of the Board is to encourage and facilitate the development of community colleges within reasonable commuting distances ofevery citizen of this Commonwealth.” See 22 Pa. Code § 35.18, The adoption of Article XIX- G of the School Code did nothing to change, abrogate or repeal any of the foregoing. 27. Denied, It is specifically denied that this Board must consider the interests of NPRC and the intent and purpose of Article XIX-G of the School Code. Rather, in considering the County's application, this Board is required to follow the legislative mandate set forth in Article XIX-A, which specifically addresses the establishment of community colleges. Had the General Assembly intended that the provisions of Article XIX-G must be part of the Board’s consideration in the establishment of community colleges, it would have expressly stated so in the legislation, It did not do so, In further answer, the County has not opposed the petition to intervene filed by NPRC, and consequently, if the NPRC’s interests are relevant to the Board's determination (which the County denies), the NPRC is in a better position to adequately represent those interests to this Board, rendering Petitioner's involvement in these proceeding duplicative and unnecessary, 28. Denied, It is denied that Petitioner is in the position to address the purpose and intent of Article XIX-G, As already stated herein, Petitioner has offered no evidence to demonstrate that he comes to this proceeding on behalf of, and with the express authority of, the General Assembly. As such, he cannot possibly represent that he is able to speak on its behalf regarding the legislative intent of Article XIX-G. In further answer, the legislative intent behind that legislation is wholly irrelevant to the matter before this Board, for the reasons already stated. 29. Denied as stated. It is denied that requests for intervention by leaders of the General Assembly are routinely granted in administrative matters under the provisions of GRAPP, and Petitioner has not provided any legal support to suggest otherwise. Rather, Petitioner cites to cases. in which leaders of the General Assembly have been permitted tointervene in court proceedings in which the subject matter of the proceeding is a constitutional challenge to some legislative enactment. ‘The matter before this Board is the review and determination of the County’s application to establish a community college in Erie ~ not a constitutional challenge to legislation; and the standard for intervention is that set forth in GRAPP = not the standard for intervening in court proceedings. As such, the cases cited by Petitioner have no bearing on the petition before this Board. In further answer, Petitioner fails to alert this Board to the Pennsylvania Supreme Court decision of Martham v. Wolf, 635 Pa. 288, 136 A.3d 134 (2015), which specifically addressed the appropriateness of intervention by legislators in their official capacity in court proceedings. In Markham, Petitioner, acting in his capacity as President Pro Tempore of the Senate, was denied intervention in a proceeding seeking to challenge an executive order issued by Governor Wolf. After an extensive review of Commonwealth and federal caselaw, the Supreme Court clarified the standing of legislators under a generalized “legislative standing” principle as follows: [Llegislative standing is appropriate in only limited circumstances. Standing exists only when a legislator’s direct and substantial interest in his or her ability to participate in the voting process is negatively impacted, or when he or she has suffered a conerete impairment or deprivation of an official power ot authority to act as a legislator. These injuries are personal to the legislator, as a legislator. By contrast, a legislator lacks standing where he or she has an indirect and less substan interest in conduct outside the legislative forum which is unrelated to the voting or approval process, and akin to a general grievance about the correctness of governmental conduct, resulting in the standing requirement being unsatisfied. Id, 635 Pa. at 305-306, 136 A.3d at 145 (intemal citations and quotes omitted). The Court went on to explain its rationale for its holding as follows: Indeed, taking the unprecedented step of allowing legislators standing to intervene in, or be a party to, any matter in which it is alleged that government action is inconsistent with existing 10legislation would entitle legislators to challenge virtually every interpretive executive order or action, Similarly, it would seemingly permit legislators to join in any litigation in which a court might interpret statutory language in a manner purportedly inconsistent with legislative intent. ... Indeed, like our federal counterparts, we are leery to recognize such uncabined and broad- based standing for legislators, as separation-of-powers problems are inherent in legislative standing, and claims of institutional injury, such as those before us, are often fully susceptible to political resolution. Id., 635 Pa, al 306-307; 136 A.3d at 145-146, To the extent Petitioner seeks to establish its right to intervene based upon the standing test applicable to court proceedings, he has failed to do so under the test enunciated in Markham. 30. Admitted, 31, [tis denied that Petitioner’s senatorial district encompasses some of the area to be served by the proposed Community College, or that Petitioner “is very much aware of the needs of the area to be served by the Community College.” In further answer, Petitioner’s senatorial district includes McKean, Potter, Tiago, Elk, Cameron, Clinton, Jefferson, and portions of Clearfield counties. ‘The target population to be served by the proposed Community College, as dicated in the County's Plan, is primarily Erie County, with supplemental population from Crawford, Warren, Forrest, Venango and Clarion counties, None of these counties are within Petitioner's Distriet. Additionally, the County questions whether, how and to what extent Petitioner is “aware of the needs of the area to be served by the Community College.” ‘The County suggests that if Petitioner was aware of the local needs as presented by the County, he ‘would not be opposing the Plan. 32. Denied. As of the filing of this answer, four others have petitioned to intervene, ineluding NPRC. The County does not oppose NPRC’s petition, NPRC is in the best position to advance the interests of NPRC, to the extent such interests are deemed relevant by this Board. It uis denied that the General Assembly has an interest to advance in this matter, or that Petitioner can advance those interests in any event, for the reasons already set forth herein, It is worth noting, again, that the General Assembly's interest is already represented in this matter by the four representative members of this Board from the House and Senate Education Committees, Consequently, Petitiones’s participation in this matter as a party intervenor would be wholly duplicative and unnecessary. 33. Denied as stated. It is admitted that the County will rely upon its application, as ‘well as additional evidence in support of its application, at the time of hearing, All other averments are denied for the reasons already stated herein, 34. Denied, It is denied that Petitioner has a right to intervene, or has made the required showing for permissive intervention under GRAPP. Specifically, Petitioner has not demonstrated that e has an interest which may be directly affected and which is not adequately represented by existing parties, as to which e may be bound by the decision of this Board, as required for intervention under the provisions of GRAPP.. 35. Denied, It is denied that Petitioner has established an interest that requires or otherwise allows for redress regarding the County's application, or that any evidence he may have would be relevant to the matters to be decided, It is also denied that no other petitions to intervene were filed. In further answer, the County is not opposing the petition to intervene filed by NPRC, and consequently, if this Board determines that NPRC has an interest that warrants intervention under GRAPP, NPRC will be able to advance those interests. 36. Denied as stated. While the County admits that Petitioner believes that he should itioner has satisfied the be permitted to intervene in this matter, the County denies that Pe 12standing requirements for intervention set forth in section 35.28 of GRAPP, and consequently, his petition should be denied. WHEREFORE, Erie County respectfully requests that this Board deny Senator Scarnati’s Petition to Intervene in this matter. Respectfully submitted, _PQST & SCHELL, P.C. YY x La Dated: January 3, 2020 ae KO, Jamneay jes, ID No. 21589 SS Michael W. Winfield, Esquire ID No, 72680 17 North Second Sireet, 12" Floor Harrisburg, PA 17101 (717) 731-1970 13COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF EDUCATION IN RE: : APPLICATION OF ERIE COUNTY : Docket No. 2019-001 SEEKING TO ESTABLISH A COMMUNITY + COLLEGE 7 CERTIFICATE OF SERVICE Thereby certify that I have this date caused a true and correct copy of the foregoing document to be served upon the following as indicated below: Yia First Class U.S. Mail, Postage Prep: Thomas P. Howell, Deputy General Counsel Governor's Office of General Counsel Commonwealth of Pennsylvania 333 Market Street, 17th Floor Harrisburg, PA 17101 Adam L, Santucci, Esquire MeNees, Wallace & Nurick, LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 asantucci@meneeslaw.com Attorneys for Intervenor Senator Joseph Scarnati, Ill Dated: January 3, 2020 Michael W. Winfield, Esaure Pa, Supreme Court LD. No.'72680 POST & SCHELL, P.C. 17 North Second Street, 12" Floor Harrisburg, PA 17101 Telephone: (717) 612-6024 Facsimile: (717) 720-5393 MWinfield@PostSchell.com Attorneys for County of Evie