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At a Commonwealth Court hearing in Harrisburg last week, two of the three judges hearing the legal challenge to U.S. Rep. Bob Brady’s mayoral candidacy seemed especially troubled by the fact that the longtime city Democratic Party chief had not disclosed on his bid’s financial statement his interest in the pension fund of the region’s carpenters’ union. But if Judges Dan R. Pellegrini and Renee Cohn Jubelirer were, in fact, bothered by the alleged omissions in Brady’s mayoral candidacy’s statement of financial interest (SFI), they didn’t take it out on the congressman. They and Senior Judge James R. Kelley, the third member of the panel in In re Nominating Petition of Robert A. Brady, agreed with the case’s trial judge that even though the former carpenter’s continued interests in the union’s pension fund amount to income, his failure to identify that income on the SFI he filed with the state after announcing his mayoral candidacy did not constitute a fatal error. The decision is likely to spark an appeal to the state Supreme Court. Brady’s challengers have been represented in their action by attorneys funded by one of Brady’s key mayoral rivals, millionaire Tom Knox. In a 13-page, nonprecedential memorandum filed late Friday, Pellegrini honed in on the fact that while the Pennsylvania Ethics Act’s provisions appear to require disclosure of such information, the actual instructions on the backs of the individual SFIs are more specific and contain a range of excepted types of income. Brady’s attorney, Stephen Cozen of Cozen O’Connor in Philadelphia, had stressed the apparent discrepancy during last week’s arguments in Brady. Knox attorney Paul Rosen of Spector Gadon & Rosen in Philadelphia had urged the panel’s judges to create a fair standard in an area of state law that has in recent years seen some would-be public officials kicked off the ballot for SFI-related errors while others are permitted to amend their statements and remain in their respective races. Though the panel’s ruling effectively marks a win for Brady, Pellegrini did take the time to expound on the bigger issues underlying such cases. “It is clear that payments made by the carpenters’ union on [Brady's] behalf are the type of ‘thing of value’ required to be reported by the Ethics Act,” Pellegrini wrote. “If the [state] Ethics Commission had not limited [via the SFI instructions] what is to be included in income, those payments would have to have been disclosed. The Ethics Commission should revise the instructions [on the back of the SFIs] to bring them into conformity with the Ethics Act.” Many Pennsylvania election law practitioners believe the recent increase in SFI-related ballot challenges was sparked by a Philadelphia-originating case that began roughly four years ago. In 2003, South Philadelphia native Vernon Anastasio was seeking to unseat his local member of City Council, Frank DiCicco. On “Block 10″ of the statement – under which the candidate lists any direct or indirect sources of income of $1,300 or more – Anastasio answered “none.” It later emerged that Anastasio did generate income at that level. (Brady’s challengers had claimed that the congressman should have disclosed his ties to the carpenters’ union’s pension fund in Block 10 of his candidacy’s SFI.) A unanimous three-judge Commonwealth Court panel ordered Anastasio’s name struck from the ballot. In her April 2003 published opinion on behalf of the court, Judge Rochelle S. Friedman wrote that Anastasio had “ignore[d] the fact that the [Ethics] Act pertains to ethics and is to be liberally construed to promote complete financial disclosure.” In a May 2003 per curiam, the state Supreme Court affirmed 4-3. The justices initially indicated that they would file opinions in the matter, but none were forthcoming. In his opinion in Brady, Pellegrini referred to the Anastasio case, the ensuing influx of SFI-related ballot challenges and the seemingly uneven treatment challenged candidates have received from Pennsylvania’s appellate courts in recent years. “The challenges brought by objectors to candidates’ petitions due to purported defects in [SFI] disclosures are increasing substantially every election cycle,” Pellegrini wrote. “Either we should go back to the view enunciated In re Nomination Petition of Anastasio that all defects are fatal or we should allow, as suggested by the trial court, liberal amendment of [SFIs]. Either way, candidates will then be treated the same and the outcome will not be dependent on the unique factual circumstances of each case that requires judges to find whether a candidate’s failure to disclose crosses some unknown line.” In an interview Friday, Cozen said he was pleased that Pellegrini had seemed to agree with Brady’s position that “we should not tolerate a cottage industry of challenging people’s nominating petitions to knock them off the ballot.” Rosen told The Legal that his clients have not yet made a decision on appealing to the state’s high court. “What is disturbing to me is that [the Brady judges] did not find a duty to disclose the sweetheart deal with the union by Brady,” Rosen said. “This is the same issue that troubled them during the argument. And the reasoning for that is inconsistent with caselaw that the Commonwealth Court has supported” in the past. (Copies of the 13-page opinion in In re Nominating Petition of Robert A. Brady, PICS No. 07-0566 , are available from The Legal Intelligencer . Please refer to the order form on page 11.)

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