COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION RECEIVED IN RE APPLICATION OF ERIE COUNTY DEC 4 9 2019 FOR ERIE COUNTY COMMUNITY PA. STATE BOARD COLLEGE OF EDUCATION PETITION TO INTERVENE BY SENATOR JOSEPH SCARNATI, Ill Senator Joseph Scarnati, Ill, President Pro Tempore of the Pennsylvania State Senate ("Senator Scarnati") by and through his undersigned counsel, McNees Wallace & Nurick LLC, files the following Petition to Intervene, and in support thereof avers as follows. THE PARTIES 4. Senator Scarnati is a member of the Pennsylvania State Senate and is the President Pro Tempore of that body. 2. Erie County is a body of politic of the Commonwealth of Pennsylvania, with a principal place of business at the Erie County Courthouse located at 140 West Sixth St., Erie, PA 16501 3. Erie Community College is a proposed community college to be located in Erie County. PROCEDURAL HISTORY 4, On June 27, 2017, Erie County council voted 4-2, with one abstention, for Erie County to act as a local sponsor for the proposed Erie County Community College (“Community College’.5. OnJune 30, 2017, the Erie County Executive filed an application for the approval of the Community College (‘Community College Application’) to the Pennsylvania Board of Education (hereinafter, "Board’), to seek state approval as required by law. 6. OnJuly 3, 2017, the Community College Application was placed on the Board's agenda for its July 12, 2017 meeting. 7. On July 12, 2017, at its meeting, the Board approved a resolution establishing a special committee (hereinafter, "Committee") to gather information on the Community College Application. 8. On September 13, 2017, the Committee held its first public meeting and requested information from the Governor's Office about community colleges as required by Section 1902A(e) of the Public-School Code. 24 P.S. § 19-1902-A(e) 9. OnFebruary 16, 2018, Erie County submitted its responses to the supplemental questions posed by the Committee on the Community College Application. 40. On November 14, 2019, the Board voted against taking final action on the Community College Application. 41. Atthe November 14, 2019 hearing, the Board approved a motion to hold an evidentiary hearing (hereinafter, “Evidentiary Hearing") on the Community College Application within the next six months. 12. Through a notice posted on its web site (date unknown), the Board announced its intention to hold a public evidentiary hearing regarding the Community College Application on Wednesday, March 18, 2020,43. The notice posted on the Board's web site also indicated that applications to intervene must be received by the Board by Thursday, December 19, 2020. 14. Senator Scarnati now files his Petition for Intervention consistent with the Board's notice and the General Rules of Administrative Practice and Procedure. LEGAL ARGUMENT 45. Senator Scarnati seeks to intervene in the evidentiary hearing as a matter of right pursuant to the General Rules of Administrative Practice and Procedure and to represent the interests of the General Assembly. 16. Pursuant to 1 Pa. Code § 35.28 "Eligibility to intervene". (a) Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought. The right or interest may be one of the following: (1) A right conferred by statute of the United States or of this ‘Commonwealth (2) An interest which may be directly affected and which is not adequately represented by existing parties, and as to which petitioners may be bound by the action of the agency in the proceeding. The following may have an interest: consumers, customers or other patrons served by the applicant or respondent; holders of securities of the applicant or respondent; employees of the applicant or respondent; competitors of the applicant or respondent. (3) Other interest of such nature that participation of the petitioner may be in the public interest. (b) Commonwealth. The Commonwealth or an officer or agency thereof may intervene as of right in a proceeding subject to this part. 1 Pa. Code § 35.28 47. The Pennsylvania Senate is the Commonwealth. Moyer v. Conti, Civ. A. No. 99 CV-744, 2000 WL 1478791, at *4 (E.D. Pa. Oct. 5, 2000).48. Senator Scamati, as President Pro Tempore of the Pennsylvania Senate, is an officer of the Senate and therefore, an officer of the Commonwealth Accord Dept’ of Envtl, Res. v. Jubelirer, 614 A.2d 199, 201 (Pa. 1989) (holding that the Senate is “the Commonwealth” and the President Pro Tempore of the Senate is “clearly” an officer of the Commonwealth). 49. Accordingly, Senator Scarnati must be permitted to intervene by right pursuant to 1 Pa. Code. § 35.28(b). 20. Furthermore, a request to intervene must be approved when the “the determination of such action may affect any legally enforceable interest’ of the individual or party seeking to intervene. Wilson v. State Farm Mut. Auto. Ins. Co., 512 Pa, 486, 517 A.2d 944 (1986) (quoting Pa. R.C.P. 2327(4)) (internal quotation marks omitted), The “legally enforceable interest” standard is a flexible rule calling for consideration of all circumstances involved. in re Pa. Crime Comm'n, 453 Pa. 513, 520, 309 A.2d 401, 406 (1973). 21, The leaders of the General Assembly have a legally enforceable interest in defending chalienges to legislation. See DeWeese v. Weaver (DeWeese |), 824 A2d 364, 369 (Pa. Commw. Ct. 2003) (finding members of the House of Representatives had standing to challenge certain amendments to the Judicial Code) 22. The Northern Pennsylvania Regional College ("NPRC") was created pursuant to the Pennsylvania Public Schoo! Code, and specifically, Article XVILE.1 of the Public School Code - Act 2014-126 [Repealed], and subsequently Article XIX-G of the public School Code Act 2016-86. 24 P.S. § 19-1906-G.23. Article XIX-G of the School Code provides for the establishment, operation, administration, and funding of a rural regional college in a multicounty rural area that is underserved by comprehensive community college education and workforce development. 24. The legislation was specifically designed for the purpose of providing for college education and workforce development in traditionally underserved areas such as Erie County and the surrounding area, where no community college exists. 25. Subsequent to the establishment of the NRPC, Erie County now seeks to provide community college services in the same area is served by the NRPC 26. The Community College would provide duplicative services, and would be potentially destructive to the NRPC, and thus would frustrate the purpose and intent of the General Assembly in passing Article XIX-G of the School Code. 27. Inconsidering the Community College Plan, the Board must consider the interests of the NRPC and the intent and the purpose of Article XIX-G. 28. Senator Scarnati is in the position to address the purpose and intent of Atticle XIX-G. 29. Requests for intervention by leaders of the General Assembly are routinely permitied. See, e.g., Grimaud v. Commonwealth, 581 Pa. 308, 885 A.2d 835 (2008); Pa. Schoo! Bds. Ass'n, Inc. v. Commonwealth Assin of School Adm'rs, 569 Pa 436, 442, 805 A.2d 476, 479 (2002); Pa. Prison Soc'y v. Commonwealth, 885 Pa. 526, 636, 776 A.2d 971, 977 (2001); Harrisburg Sch. Dist, v. Hickok, 563 Pa, 391, 394 n.1, 761 A.2d 1432, 1134 n.1 (2000); see also DeWeese |, 880 A.2d at 55 n.3; CommonCause/Pa. v. Commonwealth, 710 A.2d 108, 112 n.3 (Pa. Commw. Ct. 1998), aff'd per curiam, §62 Pa, 632, 757 A.2d 367 (2000). 30. Section 1902A(c) of the School Code requires that the Board consider the needs of areas adjacent to the areas to be served by the Community College in considering an application. 24 P.S. § 19-1902-A(c).. 31. Senator Scamati’s senatorial district encompasses some of the area to be served by the proposed Community College; and therefore, Senator Scarnati is very much aware of the needs of the area to be served by the Community College. 32. It is unclear, at this time, whether any other petitioners will seek to intervene in this matter, and therefore, there may be no ability to advance the rights of the NRPC, or the General Assembly who created the rural college legislation. 38. __Etie County, the only current party, is not inclined to present any evidence contrary to the Community College Application, advance the interests of the General Assembly or the NRPC, or provide input regarding the legislation. 34. Senator Scarnati's requested relief in the right to intervene in order to provide perspective on the purpose and intent of Article XIX-G, to present an opposing point of view on the Community College Application, and to provide evidence at the evidentiary hearing as appropriate. 35. Senator Scarnati has no other channels available to seek redress; and no other persons are better situated to assert evidence at this point because no other persons have sought, or been granted, intervention. 36. Senator Scarnati believes, and therefore avers that participation in the evidentiary hearing would provide him the opportunity to present facts to support theassertions that approval of the Community College Application may violate the School Code, and will negatively impact the multicounty rural community that the legislation was intended to protect. WHEREFORE, Senator Scarnati respectfully requests that this Board grant this Petition to Intervene and allow him to present evidence in opposition to Erie County's Community College proposal. Respectfully submitted, PA ID No. 307058 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 717.237.5388 asantucci@mcneeslaw.com Attomeys for intervenor Senator Joseph Scamati, Ili, President Pro Tempore of the Pennsylvania State Senate Date: December 19, 2019