This may have already been widely-known and/or discussed, but someone walking out of Purple Orchid, where I hand out bibles every Sunday morning, told me that Judge Toole's son Thomas was the winner in a judicial race four years ago which included another Luzerne County lawyer and Luzerne-area political type by the name of Tom O'Connor. Mr. O'Connor's brother is President and CEO of Cozen O'Connor, where Stephen Cozen, Candidate Brady's representation in the ballot challenge, is Chairman.

For clarity's sake, I am not inferring anything (and it may not even be true), just saying that it is interesting. I originally thought that ties to Philadelphia, even distant ones, would have been a low probability event.

Brady is on the ballot, and will (mark my words) remain on the ballot. Why don't you focus on something else? Fattah lied about his reasons for failing to disclose his tax returns. Knox is going to get the big dough he is spending back if he wins. But no, you just have it in for Brady. He solves a strike, you want to crucify him. Knox and Evans are using the same techniques they accuse Brady of using in their fatalistic attempts to remove this Philadelphia institution from the ballot. Do you really want to disenfranchize 24K voters? Come on, if he is so bad, then why are you worried? Perhaps it is b/c he might win? This site's bias against Brady is making me consider voting for him.

I read the opinion four times. I never stated reading opinions is outrageous. I was stating that focusing on this trivial and fatalistic challenge to Brady's candidacy instead of real issues is OUTRAGEOS!

Still, though, how do you come to the conclusion that I somehow implied (?) that reading an opinion is outrageous? I am in law school myself, and enjoy reading opinions very much.

Both this decision, which I agree involves tortuous and flawed legal reasoning (though I'm not an attorney), and one referenced in it, in re: Carroll (pdf), from a small-town mayoral election last year, seem to be cases of judges trying to find some way under the law to avoid the fatal defect clause of the Ethics Law, and seem to recognize that using unintentional omissions to remove someone from the ballot is not in the interests of ethical democracy. Judge Toole goes so far as to recommend a legislative remedy of allowing three days for challenged individuals to file an amended petition. But they're not following the law, they're trying to force the law not to violate the democratic principle of allowing the voters to choose. Unfortunately, the law as currently written does violate that democratic principle, while trying to defend the principles of transparency and accountability, which are also very important.

I looked up in re: Carroll because Toole mentions it as defining that "business entity," in the section of the financial disclosure form for "Office, Directorship or Employment in any Business Entity" refers only to for-profit businesses (meaning that Brady's positions at Penn and the City Dem Ctte are not subject to disclosure, since they are both not-for-profit). That is completely ludicrous! Clearly any non-profit or governmental boards should be disclosed there! The directions on the form say:

List any office you hold (President, Vice President, Secretary, Treasurer), any directorship you hold (through service on a governing board such as a board of directors), and any employment that you have in any capacity whatsoever, as to any business entity. This block focusses solely on your status as an officer, director, or employee, regardless of income.

In in re: Carroll, the respondent argues, and the Court agrees, that the law is referring only to for-profit businesses because

the elemental term “business” is defined in the Act, and in a way that makes plain that it
encompasses only for-profit entities: “[a]ny corporation, partnership, sole proprietorship,
firm, enterprise, franchise, association, organization, self-employed individual, holding
company, joint stock company, receivership, trust or any legal entity organized for profit.”

(emphasis from the decision, not me or the statute)

In a footnote, they acknowledge, to a certain extent, that they are twisting that definition:

We recognize that there are two possible constructions of the “organized for profit” reference in the Act’s definition of “business,” one which would construe the reference as modifying all previous examples in the definition (which is how Carroll reads the statute), and one which would construe it as applying only to the last antecedent example. See, e.g., McKinley v. Commonwealth of Pennsylvania, Dept. of Transp., 769 A.2d 1153, 1160 n.10 (Pa. 2001) (discussing “last antecedent rule” of grammatical construction). To the extent the definitional language is ambiguous, we may look to principles of construction. 1 Pa.C.S. § 1921(b); Canvass of Absentee Ballots, supra. For reasons set forth at greater length below, the plainly-stated purpose of the statute, and the harsh consequence that would accompany a construction that would lead to a finding of a material non-disclosure, convince us that any ambiguity in the definition should be construed most favorably to
candidates seeking ballot access.

(empahsis mine)

They are essentially admitting that they are reading the law in this way because to do otherwise would have subjected Carroll to the only remedy available to them in the case of a "fatal defect," striking him from the ballot! It's the very definition of judicial activism or "legislating from the bench." In that case, where the mayor served on the board of a "Mayor's Club," which gave out contributions from a pot of money collected from other town officials who contributed their nominal public salaries, and also on the Dallas Area Municipal Authority, positions which flowed from his position as Mayor, of course he shouldn't be stricken from the ballot. But the precedent that in re: Carroll sets means that disclosure of membership on all nonprofit or unpaid governmental boards is not required if you're not paid. On the board of Citizens Alliance, or any other organization that gets money from or does business with the city? Don't have to disclose,a ccording to this judgment. It's simply not possible that that was the legislative intent of this law. The court argues that the Ethics Law is concerned with "financial interests." But, by law, being on a nonprofit board means that you have a fiduciary responsibility to that organization, and can be held personally liable for its debts, which is why nonprofit organizations generally buy Directors & Officers insurance. This judgment, to me, invites enormous abuses of the intent of the Ethics Law - Damon Roberts' challenge regarding Anna Verna's role on a board which handles large sums of public money (which was withdrawn once the portion of her SFI listing that position surfaced) would have failed under this interpretation, even if the supplementary page wasn't there.

So, the bottom line is that the well-intentioned but badly drafted Ethics Law is resulting in similarly well-intentioned but even more poorly drafted and reasoned judicial decisions. I think that what works better is for the judges to enforce the penalties, especially on big-name, powerful folks, even though it does a disservice to democracy and the voters who signed their petitions. Because having it happen to those folks is much more likely to effect statutory change than when small-time challengers get thrown off the ballot. Already, the Legislature jumped this year when Brady got challenged after this trend of using SFIs to kick people off the ballot has been going on for several years. So, whatever happens this time, we need to get this legislation amended so that it makes more sense and does away with these dumb gotcha! challenges.

While I'm leaning against voting for Brady in the primary, I agree with what seems to have been the central point in the judge's ruling: let the voters decide. Why are Evans + Knox fighting so hard to keep Brady off the ballot? Do they think that they can't beat him on their own merits?

If they really feel that way, I see that as an excellent reason to vote for neither of them, whatever your opinion of Brady might be.

-Z

Dan, I think you are wrong. This opinion tracks pretty much everything I said in our previous posts on this issue. Ultimately, you are right, the Pennsylvania Supreme Court will decide and, it is my guess that Brady will be on ballot on May 15, 2007.

What Mark Cohen says about something in 2007 is not legislative intent. It has no authority. Plus, courts do not have to listen to legislative intent in making their determinations. Sorry, if the legislature wanted a better statute, they could have drafted it.

Dan, Gaetano, and others -- what's your take on the judge's ruling on Brady's failure to disclose his pension from the carpenter's union? It can't fall at all under the "governmentally mandated payment" logic above. Essentially, the ruling says, yes, Brady should have disclosed this, but it's not a fatal error and he can amend it.

What strikes me as strange is that the judge very easily could have applied THIS logic to Brady's city pension as well. Why didn't the judge just say, "the language is unclear, and there's no explicit ruling on whether not disclosing a pension is a fatal error, so I'm going to say it's amendable." The complicated reasoning on governmentally mandated payments could suggest that if the city pension weren't a GMP, then it would be a fatal error. But the basis of the second part of the decision suggests that it wouldn't be. As far as I know, the judge didn't say one way or the other that the pension didn't need to be disclosed because Brady hasn't received payments on it, which is another argument that's been floated around.

The carpenter's union pension is, at least for me, the more ethically problematic of the two. It's a business relationship with a group that does work with the city and that Brady's policies as mayor can affect. Also, Brady is at least technically compensated at a higher rate than his actual working hours merit. Will Bunch at Attytood has been the best journalist on this in the local press. In Congress Brady has, at least once, switched his position on a bill -- in one environmental bill, a bill he'd co-sponsored -- after opposition from the union.

I'm not saying that Brady shouldn't support unions, or that he doesn't have the right to change his mind, or that he is in the least bit corrupt. I don't know anything about that. But if he's getting money from a private interest, he should disclose it on his form. And I haven't seen anything that's very persuasive that says why he shouldn't. And my feeling is that on appeal, this may also be the issue that turns the case.