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U.S. Rep Bob Brady’s spot on the ballot for the mayoral primary is safe for the time being. Luzerne County Senior Judge Patrick J. Toole Jr., an out-of-town judge presiding over the challenge to Brady’s mayoral bid, has ruled in favor of Brady in In re Nominating Petition of Robert A. Brady. At the heart of the dispute was whether Brady’s omission on financial disclosure forms of his alleged ties to city and carpenters’ union pension funds is enough to warrant kicking him off the ballot. Toole ruled that the city pension was governmentally mandated and did not have to be reported, but ruled that the carpenters’ union pension was income and should have been reported. Toole said that error was not fatal, however, and an amendment to the forms would solve the problem. Several times throughout the opinion, Toole pointed to the need to show deference to a candidate’s right to run for office. He said the fatal error rule, which has knocked others off of ballots, is “harsh.” In a lengthy footnote at the end of the opinion, Toole said judges on every level of the judicial system have criticized the fatal error rule. “To strike the candidacy of a person is a harsh and drastic penalty,” he said. “In an effort to protect a candidate from such a fate and attempt to provide appropriate financial disclosure, the Ethics Act could be amended to provide that a candidate who timely files his nomination papers and financial interest forms shall be permitted to file an amended financial interest statement ‘as of course’ within three days of receipt of a copy of any objections.” Paul Rosen of Spector Gadon & Rosen represented mayoral candidate Tom Knox, who raised the challenge against Brady. Rosen said Toole “carves out an exception for Brady” from the fatal error rule even though he ruled that Brady should have disclosed his carpenters’ union pension benefits. “This is exactly what we were fighting to prevent happening,” he said, adding later “if you’re Brady, you get a second chance,” whereas several other candidates have not. Rosen said Toole is admitting that Brady violated the law as currently written, but then says the law should be changed. Rosen said he would file an appeal. In a statement released by Brady’s campaign, the congressman said he was “energized” and “gratified” by Toole’s ruling. “Anyone has the right to challenge petitions, but Tom Knox crossed the line with mean-spirited personal attacks on me and thousands of working men and women,” Brady said in the statement. “Personal attacks will not educate one child; personal attacks will not get one more gun off the streets, and personal attacks will not create one more job.” Brady’s attorney, Stephen A. Cozen of Cozen O’Connor, said he would represent Brady if the case went to the Pennsylvania Commonwealth Court. He said the instructions on the financial disclosure forms are ambiguous. “I think it’s insulting to the nth degree for a guy like Tom Knox to suggest that if Bob Brady isn’t smart enough to read the forms, he’s not smart enough to be mayor,” Cozen said. “I think that’s insulting to every working person in this city.” When it came out that Brady might have omitted certain income from his financial disclosure forms, his spokeswoman had originally said the omission was an honest mistake and Brady’s camp moved quickly to amend the filings. At his hearing last week, however, Brady said he never authorized his staff to suggest the filing was a simple error. Cozen later argued that the statute governing Pennsylvania candidates’ financial disclosure forms specifically absolves political hopefuls of the duty to disclose governmentally mandated benefits – such as, he suggested, a city pension. Rosen stressed to Toole in arguments last week that political candidates should be eager to prove “they have nothing to hide.” In his 32-page opinion, Toole said it is clear that governmentally mandated benefits are not income and do not need to be reported in Block 10 of financial disclosure forms – that is the “block” in question and asks for potential candidates to state “direct or indirect sources of income.” The question, Toole said, was whether Brady’s carpenters’ union and city pensions were considered income or governmentally mandated benefits. “We believe and hold that the city pension in this case is mandated by law and, accordingly, falls within the governmentally-mandated payment exclusion outlined in the [Pennsylvania State] Ethics Act and its [statement of financial interest] instructions,” Toole said. The judge said he could have stopped there given that his ruling resolves Brady’s claim of entitlement to file an amendment to his financial statements. Because the case is likely to be appealed, however, Toole said he would consider whether Brady’s argument under In re Benninghoff was valid. In In re Benninghoff, state Rep. Kerry Benninghoff, a Republican from central Pennsylvania, was up for re-election in 2004.Block 10 of Benninghoff’s 2004 statement failed to disclose that he received a direct source of income from the state as a member of the General Assembly. The Pennsylvania Supreme Court ultimately ruled that Benninghoff reported his public positions accurately in other blocks and said his salary could be easily obtained because it is public information. Toole said that is not the case in Brady’s situation. “In the instant case, we cannot facially obtain from any response made by Brady in his financial statement that would lead or permit us to conclude that he was ever employed by the city of Philadelphia or that he had earned and was receiving a pension for such service,” Toole said. Even though Benninghoff may not apply to Brady’s case, Toole said the phrase “governmentally mandated payment” has not been defined by the Legislature or the Ethics Commission. He said Brady sought the advice of attorneys, accountants and his campaign finance director when he didn’t quite understand the instructions on the financial disclosure statements. Brady then amended the complaint without consultation as soon as he read media reports that it may be lacking information, Toole said. “The interpretations of Brady and his attorneys and accountant which prompted and supported the responses provided in the [statement of financial interest] were clearly reasonable,” Toole said. “Even the plain language utilized in the act and instructions could be construed to be ambiguous, and it would be inequitable and unfair to Brady or his advisers for failing to predict any other judicial interpretation.” He went on to say that any nondisclosures by Brady, if in error, “are not fatal, but correctible.” Toole did determine that the pension payments put away each month from the carpenters’ union for Brady do constitute income and should have been reported in Block 10. Even though Brady never collected money from the pension, Toole said the pension is an indirect financial benefit to Brady. That was not, however, enough to kick Brady off of the ballot. Toole was brought in to preside over the matter to avoid the appearance of impropriety: Brady, as longtime head of the city’s Democratic Party, has links to a large number of Philadelphia’s sitting judges. State Rep. Dwight Evans, D.-Phila., joined Knox in the challenge against Brady. View the full text of the opinion in In Re: Nominating Petition of Robert A. Brady.

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