Beth Ann Rosica: After two years in office, Shapiro fails to fill key vacancies on state commission

Author’s Disclosure: I am a plaintiff in a lawsuit against the PHRC regarding the adoption of new regulations in 2023 that expanded the definition of sex to include gender identity.

When Josh Shapiro was sworn in as governor in 2023, there were four commissioner vacancies on the eleven-person Pennsylvania Human Relations Commission (PHRC). Over two years later, the four vacancies remain unfilled.

Shapiro, who likes to boast about “getting s*** done,” has not appointed a single person to fill those vacancies.

While it’s certainly possible the governor’s failure to make any appointments is just laziness or a matter of priorities, there’s a good argument to be made that the seats are empty as part of a political strategy.

At least one lawmaker, State Representative Stefenie Scialabba (R-Butler), is concerned about Shapiro’s dereliction and plans to introduce legislation to replace the current process with one that more closely resembles other commissions.

By law the PHRC is “independent and nonpartisan, with no more than six commissioners from one political party.”

Based on an analysis conducted by Broad + Liberty, the current configuration of commissioners technically meets the legal requirement of no more than six commissioners from one political party. We reviewed the state voter rolls to determine the political party registration of each of the current seven commissioners. For accuracy’s sake, we cross referenced more common names with their residence and voting precinct.

Our analysis reveals six of the commissioners are registered Democrats and one is a registered Republican.

Under the leadership of these same commissioners in 2023, the PHRC enacted new regulations changing the definition of sex to include gender identity and gender expression.

The Pennsylvania Human Relations Act was enacted in 1955 and established the terms of the agency and its oversight. PHRC is required to have eleven commissioners who are appointed by the Governor and approved by the majority of the Senate. 

“Said Commission shall consist of eleven members, to be known as Commissioners, who shall be appointed by the Governor by and with the advice and consent of a majority of the members of the Senate, not more than six of such Commissioners to be from the same political party, and each of whom shall hold office for a term of five years or until his successor shall have been duly appointed and qualified.” (emphasis added)

The term “shall” in the legal sense means it is a requirement, not a choice. Therefore, the Governor is required to appoint the full eleven commissioners; yet two years later, he has not.

Is it conceivable Shapiro wanted to keep the commission unbalanced with only one Republican commissioner? Perhaps, a heavily Democratic commission would be more likely to push through the 2023 regulation changes?

Shapiro has been a staunch supporter of allowing boys to compete in girls’ sports and invade their private spaces, despite the fact nearly 80 percent of Americans are opposed to this position.

The governor has been quite vocal about his support on social media, as he posted that preventing boys from competing against girls is “discriminatory.”

I’ll veto this discriminatory bill if it gets to my desk. https://t.co/nnc8vOuEdH

— Governor Josh Shapiro (@GovernorShapiro) April 26, 2021

Notably absent from his statement is any type of protection or concern for girls and women who comprise half of his constituency.

Given his public statements on the issue, it begs the question whether Shapiro has intentionally left these commissioner vacancies unfilled. 

Shapiro’s office did not return two requests for comment.

The current seven-person composition of the commission has been in place since 2018, and the five-year term of each member has long since expired — some terms have been expired for longer than the actual five-year appointment.

So not only has Shapiro been remiss in appointing the remaining four commissions, all seven PHRC commissioners are serving expired terms. While the governor is required to appoint the commissioners, each nomination must be approved by a majority of the Senate.

With no new appointments or reappointments, Shapiro is denying the Senate’s opportunity to vote on the nominations. Although in the case of the current seven commissioners, every Senate member regardless of political affiliation who was present for the vote, voted affirmatively to approve the nominations.

Yet with the regulatory changes in 2023, maybe some senators would vote differently now.

The current seven commissioners are chaired by M. Joel Bolstein, Esq., the lone Republican who was initially appointed in 1999, and then reappointed in 2005, 2010, and 2016.  His term expired in 2021.

The remaining six commissions are all Democrats. Dr. Raquel O. Yiengst’s term expired in 2018. Aleena Sorathia, Esq. and Dr. Radheshyam M. Agrawal’s terms expired in 2019. Mayur Patel, Esq., Michael Hardiman, Esq., and Curtis Jones’, Jr. terms expired in 2021.

The proposed legislation by State Representative Stefenie Scialabba, a Republican, limits the governor to one appointment.

“My proposal will replace the current nomination process to more closely resemble other boards and commissions, with two members of the commission appointed by each of the Leaders of the General Assembly, with an additional member appointed by each the Governor, Attorney General, and Auditor General.”

Scialabba’s proposed legislation is in direct response to the governor’s inaction.

“It is obvious that the current nomination process for this Commission is not functional, if the entire makeup can be simultaneously serving expired terms” she wrote in a memo. “As an important regulatory body of the Commonwealth, serving to protect Pennsylvanians from discrimination on the basis of their fundamental traits, the Human Relations Commission should have a representative and democratically legitimate makeup of Commissioners.”

Scialabba is also serving as co-counsel in the lawsuit filed against the PHRC.

Questions remain as to why Shapiro has allowed all the commissioners’ terms to lapse and why he hasn’t filled the four vacancies. It certainly gives the look of partisan politics with only one Republican commissioner.

However, the Republican commissioner, M. Joel Bolstein, fully supported the regulatory change to expand the definition of sex to include gender identity and pave the way for boys to play in girls’ sports and to use their bathrooms and locker rooms.

When the regulations were passed in 2023, Bolstein said “all discrimination is wrong and the PHRC is pleased to see these regulations approved, guaranteeing Pennsylvanians the safety and security of knowing the Commonwealth will stand with them and protect them against acts of discrimination.”

I contacted Mr. Bolstein for an updated statement; however, he was understandably limited in his ability to comment since I am plaintiff in the lawsuit against the PHRC. He did express his continued support for the regulations.

“Ordinarily, I’d be happy to respond to a request for clarification on my position as chairperson or on the position of the PHRC, but since this matter is in litigation, I think I’m constrained from providing much by way of an answer other than to say that I advocated for the regulations and I continue to support the regulations,” wrote Bolstein. “The rationale for the regulations was set forth in the documentation PHRC submitted to the IRRC, and I presented the regulatory package to the IRRC, and I defended the regulations during the IRRC’s public meeting in which they voted to approve the regulatory package by a 3-2 vote.”

Clearly, Shapiro is remiss in his responsibility to fill the commission by appointing new commissioners and reappointing current commissioners. Since he is unwilling to respond to questions about his intent, we are left wondering if his actions are malfeasance or incompetence.

Beth Ann Rosica resides in West Chester, has a Ph.D. in Education, and has dedicated her career to advocating on behalf of at-risk children and families. She covers education issues for Broad + Liberty. Contact her at barosica@broadandliberty.com.