The governor has at least two choices, experts say: turn over the information or invoke executive privilege, potentially setting off a court fight.
Cynthia Fernandez/Spotlight PA
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HARRISBURG — Gov. Tom Wolf is facing a 4 p.m. deadline to comply with a subpoena for documents related to a controversial waiver process that allowed some businesses to stay open during the coronavirus pandemic while others were told to remain closed.
The governor has at least two choices, experts say: turn over some or all of the information, or invoke executive privilege, potentially setting off a court fight.
At issue is a waiver program facilitated by the Department of Community and Economic Development that gave businesses the opportunity to prove they were essential and should be allowed to remain open. While thousands of waivers were granted, and even more denied, the administration has so far refused to reveal which businesses were approved or rejected, or detail how those decisions were made.
Department of Community and Economic Development Secretary Dennis Davin told Senate lawmakers in April his agency plans to make information on the waiver process available, but failed to set a timeline for doing so. That led frustrated Republicans in the chamber to approve the subpoenas against Wolf and Davin.
A spokesperson for Wolf wouldn’t say Thursday what the administration plans to do. But a representative for Sen. Mike Regan (R., York), who signed the subpoenas, said the office had not received any communication from the governor as of Thursday afternoon.
That hints at a more likely outcome: Wolf could invoke executive privilege and argue that the administration’s internal deliberations are shielded from the General Assembly.
Should the governor do that, the Senate could take legal action to enforce the provisions of the subpoena, according to Michael Moreland, professor of tort and constitutional law at Villanova University.
“The ball is in the governor’s court to respond,” Moreland said. “Then, we’ll see how much political pressure the Republican majority in the state legislature thinks they are under to respond in order to escalate the conflict, if they think that will be a politically wise move.”
The subpoenas ask for all notes, memos, emails, letters, and other documents “related to the process by which a business could request a waiver or exception from the governor’s business closure order.”
Wolf ordered all but “life-sustaining” businesses to close in March to slow the spread of the coronavirus, while also creating the waiver process “in an attempt to actually make the process more open and transparent,” he told reporters in April.
He added that, instead of forcing businesses to seek help through political connections, the waiver process had “some objectivity to it.”
Instead of being hailed as transparent, the waiver process has been decried as secretive and seemingly inconsistent, as businesses in the same industries report different outcomes.
Numerous media outlets, including Spotlight PA and The Philadelphia Inquirer, sought documents on the waivers directly from the administration but were denied. The news organizations also filed an open records request, but Wolf in mid-March froze the process as state offices closed, cutting off the press and public’s best recourse for such information.
Bruce Ledewitz, professor of law at Duquesne University, said there have been “serious issues raised about the waiver process,” and the Senate is entitled to the information.
But he said it’s unlikely the Wolf administration will comply, since he doubts they have time to produce responsive documents while handling the pandemic response.
“It’s proper for the legislature to have a hearing and get the information to see if the statute needs to be rewritten. It’s all perfectly proper,” he said. “It’s just that everybody is so stretched at this moment. You’re sorry to see it deteriorate to the point where they felt they needed a subpoena.”
Democrats have decried the subpoena orders, arguing they take attention away from the pandemic and duplicate Auditor General Eugene DePasquale’s efforts to review the program.
The audit began in late April and will consider how employers reached out to the economic development department, who responded to the request, and if the decisions were consistent. DePasquale said his office will determine if the waiver process needs to reopen out of fairness.
But Republicans, Ledewitz said, might be concerned about the Democrat’s party ties and loyalty.
“The auditor is Democrat and the Senate are Republicans,” Ledewitz said. “I’m not impugning anybody. I’m just saying it’s not surprising that the legislature doesn’t want to rely on somebody who could be considered a sort-of ally of the governor’s to conduct the review.”