In re Bah

• Decision Date: 16 April 2019
• Docket Number: No. 381 C.D. 2019,381 C.D. 2019
• Citation: 215 A.3d 1029
• Parties: IN RE: Nomination Petition of Tonya BAH as Candidate for the Democratic Party's Nomination for the Office of City Council Appeal of: Tonya Bah
• Court: Pennsylvania Commonwealth Court

215 A.3d 1029

IN RE: Nomination Petition of Tonya BAH as Candidate for the Democratic Party's Nomination for the Office of City Council

Appeal of: Tonya Bah

No. 381 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 4, 2019
Decided April 16, 2019

Samuel C. Stretton, West Chester, for Appellant.

Kevin Greenberg, Philadelphia, for Appellees.

BEFORE: HONORABLE ANNE E. COVEY, Judge

OPINION¹ BY JUDGE COVEY

Tonya Bah (Candidate) appeals from the Philadelphia County Common Pleas Court's (trial court) March 25, 2019 order granting Andre Mays', Herbert Wayns' and Cindy Bass' (Objectors) Petition to Set Aside (Objection Petition) Candidate's Democratic Nomination Petition for the Office of City Council (Nomination Petition). Candidate presents three issues for this Court's review: (1) whether the trial court erred by concluding that Candidate failed to comply with Section 1104(b)(2) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1104(b)(2) ; (2) whether the trial court erred by concluding that the fatal defect clause of Section 1104(b)(2) of the Ethics Act applied to this case;² and (3) whether the trial court's interpretation of Section 1104(b)(2) of the Ethics Act violates the United States and Pennsylvania Constitutions.

The facts underlying this appeal are not disputed. On March 8, 2019, Candidate's campaign manager Carol Rosenthal (Rosenthal) filed Candidate's Nomination Petition with the Philadelphia County Board of Elections (Board of Elections) to have Candidate's name printed on the Democratic ballot as candidate for the Office of City Council in the May 21, 2019 primary election. When the Board of Elections accepted Candidate's Nomination Petition, her original Statement of Financial Interest (SFI) was appended thereto. The Nomination Petition filing deadline was March 12, 2019.

On March 19, 2019, Objectors filed the Objection Petition to have Candidate's Nomination Petition stricken based on Candidate's failure to file her SFI with the

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City of Philadelphia's (City) Department of Records (Department), in violation of Section 1104(b)(2) of the Ethics Act. On that same day, Rosenthal filed a copy of Candidate's SFI with the Department. Also on March 19, 2019, the trial court issued a rule to the Board of Elections to show cause why Candidate's name should not be removed from the primary election ballot.

The trial court held a hearing on the rule to show cause on March 21, 2019. On March 25, 2019, the trial court granted the Objection Petition and ordered that Candidate's name be removed from the ballot. Candidate appealed to this Court.³

In her appeal, Candidate spends a significant amount of her 78-page brief arguing that the trial court erred by concluding that she failed to comply with Section 1104(b)(2) of the Ethics Act. She specifically avers that the Ethics Act and the SFI instructions are ambiguous, that her SFI filing with the Board of Elections satisfied Section 1104(b)(2) of the Ethics Act, that the Department was not designated as the City's governing authority, Candidate was not notified that she had to also file her SFI with the Department, that the courts must liberally construe Section 1104(b)(2) of the Ethics Act, and that In re Nomination Petition of Guzzardi , 627 Pa. 1, 99 A.3d 381 (2014), does not apply herein. Candidate also contends that the trial court erred by concluding that the fatal defect clause of Section 1104(b)(3) of the Ethics Act applied to this case.

Initially, it is well settled that election laws "must be construed liberally ‘so as not to deprive an individual of [her] right to run for office, or the voters of their right to elect a candidate of their choice.’ Nomination Petition of Ross , ... 411 Pa. 45, 190 A.2d 719, 720 (1963) [.]" In re Nomination Petitions of Scott , 138 A.3d 687, 691 (Pa. Cmwlth. 2016). Accordingly, this Court will strike a candidate's name from the ballot only when constitutionally or statutorily compelled to do so.

At issue in the instant appeal is Section 1104(b) of the Ethics Act, which states:

(1) Any candidate for a State-level public office shall file a statement of financial interests for the preceding calendar year with the commission on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition.

(2) Any candidate for county-level or local office shall file a statement of financial interests for the preceding calendar year with the governing authority of the political subdivision in which [s ]he is a candidate on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition .

(3) No petition to appear on the ballot for election shall be accepted by the respective ... local election officials unless the petition has appended thereto a statement of financial interests as set forth in paragraphs (1) and (2). Failure to file the statement in accordance with the provisions of this chapter shall , in addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot .

65 Pa.C.S. § 1104(b) (emphasis added).

Section 1104(b)(2) of the Ethics Act instructs that, as a local office candidate,

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Candidate shall file her original SFI with the governing authority of the political subdivision, and shall append a copy thereof to her Nomination Petition.⁴ Section 1104(b)(3) of the Ethics Act clearly states that Candidate's failure to file her SFI in accordance with Section 1104(b)(2) of the Ethics Act is a fatal defect. The statutory mandate and the General Assembly's intent is clear. Contrary to Candidate's assertion, the language is not ambiguous. In fact, this Court has previously described that language as "absolute and unequivocal[.]" In re Ross , 109 A.3d 781, 786 (Pa. Cmwlth.), aff'd sub nom. In re Substitute Nomination Certificate of Ross , 628 Pa. 6, 101 A.3d 1150 (2014) ; see also In re Nomination Petition of Prosperino , 972 A.2d 92 (Pa. Cmwlth. 2009).

In addition, Candidate's SFI contained nearly identical instructions that she, as a candidate for municipal office, shall "[f]ile the [original SFI] with the Clerk/Secretary in the Municipality in which you are a candidate[,]" and "[a]ppend a copy to [the] nomination petition when filed with the County Board of Elections." Notes of Testimony, March 22, 2019 (N.T.), Ex. R-1 at 12. Rosenthal admitted at the trial court hearing that the SFI form instructed that Candidate "ha[d] to file an original [SFI] and an additional filing." N.T. at 15.

This Court has further ruled that Section 1104(b) of the Ethics Act requires two distinct SFI filings :

The Ethics Act clearly requires a candidate for a county-level [or local] office to file a statement of financial interests for the preceding calendar year with the governing authority of the political subdivision in which [s ]he is a candidate on or before the last day for filing a petition to appear on the ballot for election. This is the first filing required by the statute. Attaching to a candidate's nomination petition is the second filing required by Section 1104(b)(2) [of the Ethics Act ]. As such, this Court is constrained to follow the clear directive of the Ethics Act. If the General Assembly had wished to carve out an exception for certain or specific county level offices, such as the Office of [City Council], it would have done so and this Court does not have the authority to insert such an exception.

Prosperino , 972 A.2d at 96 (bold and underline emphasis added).

Here, Rosenthal timely filed Candidate's original SFI and Nomination Petition with the Board of Elections (e.g. , second SFI filing requirement). However, neither Candidate, Rosenthal, nor anyone else on Candidate's behalf, timely filed Candidate's SFI with the "governing authority of the [City]" (e.g. , first filing requirement). 65 Pa.C.S. § 1104(b)(2) ; see also N.T. at 2, 16 (counsel stipulation). Rather, Rosenthal belatedly filed Candidate's SFI with the Department on March 19, 2019, after being made aware of the error. Accordingly, Candidate did not satisfy the clear requirements of Section 1104(b)(2) of the Ethics Act.⁵

215 A.3d 1034

This Court acknowledges that the Ethics Act does not define "governing authority," nor mandates that each political subdivision clearly define who its governing authority is and/or where SFI filings are to be made to satisfy Section 1104(b)(2) of the Ethics Act. See In re Nomination Petition of McMonagle , 793 A.2d 174 (Pa. Cmwlth. 2002).⁶ However, it is evident from the record that Candidate's failure to make her additional SFI filing was not caused by any statutory ambiguity in Section 1104(b)(2) of the Ethics Act (as to which physical office would accept Candidate's SFI - the City's governing authority), or from the SFI form instruction that two SFI filings were required.

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