Pennsylvania Cases September 21, 2023: In re Brooks

Case Description

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OPINION NOT REPORTED

Submitted: August 28, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, JUDGE HONORABLE LORI A. DUMAS, JUDGE HONORABLE STACY WALLACE, JUDGE

MEMORANDUM OPINION

FIZZANO CANNON JUDGE

Christopher M. Vogler and Joseph J. Giedemann (collectively, Objectors) appeal the August 11, 2023 orders (Trial Court Orders) of Court of Common Pleas of Philadelphia County (Trial Court) denying Objectors' Petition to Set Aside Nomination Paper of Kendra Brooks for City Council At-Large and Petition to Set Aside Nominating Paper of Nicolas O'Rourke for City Council At-

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Large (collectively, the Petitions) and allowing Kendra Brooks (Candidate Brooks) and Nicolas O'Rourke (Candidate O'Rourke) (collectively, Candidates) to remain on the ballot for the office of Philadelphia City Council, At-Large in the November 2023 general election. For the following reasons, this Court affirms.

I. Background

The facts underlying the instant consolidated appeal are straightforward and not in dispute. On July 31, 2023, the day before the August 1, 2023, filing deadlines, Candidate Brooks and Candidate O'Rourke each filed with the City of Philadelphia's (City) Department of Records (Department) nomination papers to be placed on the ballot for the office of Philadelphia City Council, At-Large, in the November 2023 election. Together with their nomination papers, the Candidates each electronically filed a completed Commonwealth of Pennsylvania Form SEC-1 statement of financial interests (the First SFIs) required by the Public Official and Employee Ethics Act (Ethics Act). The Candidates generated and submitted the

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First SFIs using a Department web portal (Department Portal) that allows for the electronic submission of the City and Commonwealth SFI forms to the Department and that also permits such submissions to be viewed and maintained on file. The First SFIs each bore the Candidate's name and required financial disclosures. However, in lieu of actual, "wet" signatures handwritten by the Candidates on the signature line, the blank for signatures on the First SFIs displayed the phrase "COMPLETED AND SIGNED ELECTRONICALLY" in red lettering generated by the Department Portal.

The parties have made the following pertinent factual stipulations: (1) the First SFIs were generated using the Department Portal; (2) the Department Portal facilitates submission of the SFIs required by the Philadelphia City Code and also the Form SEC-1 required by the Ethics Act; (3) the Department is the designated "governing authority" to which the Candidates were required to submit their Form SEC-1; and (4) the First SFIs were generated and submitted to the Department before the applicable August 1, 2023, deadline.

On August 7, 2023, six days after the deadline for filing nomination papers and accompanying SFIs, the Candidates each filed a second Form SEC-1

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(Second SFIs) as an amendment to the First SFIs. The Second SFIs contained the same information as the First SFIs and differed only in that they contained the Candidates' original handwritten signatures in lieu of the Department Portalgenerated "COMPLETED AND SIGNED ELECTRONICALLY" designations that appeared on the First SFIs.

On August 8, 2023, Objectors filed the Petitions in the Trial Court challenging the Candidates' nomination papers as fatally defective by virtue of Candidates' failure to have included original "wet" signatures on the First SFIs. On August 11, 2023, the Trial Court conducted a hearing on the Petitions. At the conclusion of the hearing, the Trial Court entered an order on the record denying the Petitions and explaining that the Trial Court viewed the First SFIs as amendable. See Notes of Testimony, August 11, 2023 (N.T. 8/11/2032) at 39-41. Objectors timely appealed.

II. Issues

On appeal, Objectors argue that the Candidates' names should be stricken from the ballot for the office of Philadelphia City Council, At-Large, in the November 2023 election because the First SFIs did not contain original "wet"

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signatures signed in the Candidates' own hand. See Objectors' Br. at 5, 11-19. Objectors argue that the Candidates' failure to sign the First SFIs was a fatal, non-curable defect. See id. at 5, 19-27. Candidates counter that Objectors' argument that the lack of "wet" signatures on the First SFIs requires Candidates' removal from the ballot is factually and legally without merit. See Candidates' Br. at 6-11. Candidates further argue that, even if a "wet" signature is required, such a defect is amendable and was timely amended. See id. at 11-12.

III. Discussion

Section 1104 of the Ethics Act requires candidates for county-level public offices in the Commonwealth to file an SFI on or before the last day for filing a petition or paper to appear on the ballot for election. See 65 Pa.C.S. § 1104(b)(2).

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Section 1105 of the Ethics Act provides that "[a]ll information requested on the [SFI] shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation." 65 Pa.C.S. § 1105(a). Further, the Ethics Act states that the failure of a candidate to file an SFI in accordance with the provisions of the Ethics Act "shall . . . be a fatal defect to a petition to appear on the ballot." 65 Pa.C.S. § 1104(b)(3). However, in 2007, our Supreme Court limited the fatality rule of Section 1104 of the Ethics Act to candidates who either file untimely SFIs or fail to file them altogether by expressly stating as follows:

[T]he fatality rule announced in Section 1104 of the Ethics Act was intended by the Legislature to bar only those candidates from the ballot who fail to file statements of financial interests or who file them in an untimely manner. Section 1104 does not bar any candidate from the ballot if he or she files in a timely manner, even if there are defects on the face of the form, so long as that candidate subsequently amends the form to correct the defect and comes into compliance with the Act in a timely manner. In other words, all defects related to the content of disclosures on a timely filed statement of financial interest are subject to timely amendment.

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In re Paulmier , 937 A.2d 364, 371 (Pa. 2007), as clarified (Dec. 28, 2007). The Supreme Court noted, however, that because "Section 1105 of the Ethics Act requires that the statement of financial interests be provided to the best of the knowledge, information and belief of the person required to file[] . . . candidates must still file in good faith, even though they do have an opportunity to amend." Paulmier , 937 A.2d at 371 n.3.

Thereafter, in an analysis based on Paulmier , this Court ruled in In re Wissinger that the failure of a candidate to sign a filed SFI does not represent a fatal defect that renders the SFI a nullity. See In re Wissinger , 18 A.3d 445, 448 (Pa. Cmwlth. 2011); see also Smith v. Brown , 590 A.2d 816, 818 (Pa. Cmwlth. 1991) (affirming trial court denial of petition to set aside nomination petition based on a candidate's failure to sign financial disclosure statement, which defect the Court found to be amendable). The Court expressly found that a failure to sign a filed SFI represented a defect apparent on the face of the SFI and was therefore amendable. See In re Wissinger , 18 A.3d at 448. The Court further expressly "reject[ed] [o]bjectors' argument that the failure to sign renders the [SFI] legally ineffective and equates to a lack of filing." Id.

In terms of the First SFIs in the instant matter, the instant matter is strongly akin to Wissinger . Here, Candidates included the requisite personal and financial information on the First SFIs, but "signed" the First SFIs by using the Department Portal to place the statement "COMPLETED AND SIGNED ELECTRONICALLY" on the forms in lieu of original hand signed signatures. However, even assuming that Candidates' use of the Department Portal to place this phrase on the First SFIs in lieu of actual signatures had the legal effect of rendering the First SFIs unsigned, such defect was amendable. See Wissinger ; see also In re Flynn

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(Pa. Cmwlth., No. 89 M.D. 2021, filed April 19, 2021). Thus, the Candidates could have amended the First SFIs by timely filing the Second SFIs with the Department, and the Candidates did so on August 7, 2023. Accordingly, the Trial Court did not err in denying the Petitions.

Additionally, Objectors' reliance on In re Scroggin , 237 A.3d 1006 (Pa. 2020), is misplaced. In Scroggin , our Supreme Court determined that the Pennsylvania Election Code's (Election Code) requirement that a candidate attach an original, valid, sworn affidavit to their nomination petition was mandatory and that, consequently, the candidate's failure to do so constituted a fatal defect, rendering her candidacy a nullity. See 237 A.3d at 1017-23. In reviewing the pertinent sections of the Election Code, the Supreme Court recognized the longstanding anti-fraud goals of the Election Code's affidavit requirements and determined that "[j]ust as the signatures of qualified electors must be submitted in original, or 'wet,' form so as to verify their authenticity, so, too, must candidates submit genuine, sworn-and-signed affidavits to satisfy their filing obligations." Id. at 1019-20. However, Scroggin did not overrule, expressly or otherwise, either Paulmier , which established that all defects related to the content of disclosures on a timely filed SFI pursuant to the requirements of the Ethics Act are subject to timely amendment, or Wissinger , which extended the rule in Paulmier to even unsigned SFIs. Therefore, as discussed supra , even if the First SFIs are considered to have been filed without any signatures whatsoever as a result of the insertion of the text

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"COMPLETED AND SIGNED ELECTRONICALLY" in place of the Candidates' signatures thereon, the First SFIs were still amendable. See Paulmier ; Wissinger ; see also In re Flynn (Pa. Cmwlth., No. 89 M.D. 2021, filed April 19, 2021). Further, Scroggin dealt specifically with the Election Code, not the Ethics Act, which does not serve the same anti-fraud purposes as the Election Code. Instead, the Ethics Act seeks to ensure that the electorate has information about the individual candidates on the ballot in an election to prevent them from benefitting financially from the office at the expense of the public. See 65 Pa.C.S. § 1101.1(a); see also Commonwealth v. Norris , 27 A.3d 1025, 1032 (Pa. Super. 2011) ("The distinct purpose of the Ethics Act was to regulate public office holders and those seeking public office, and prohibit them from using that office to benefit financially at the expense of the public."). Therefore, while considered in pari materia , because the Election Code and Ethics Act serve these fundamentally different purposes, the requirement that nomination papers filed under the Election Code must contain original signatures is not inconsistent with the permissible amendment of errors on the face of SFIs filed under the Ethics Act. For these reasons, the facts and reasoning of Scroggin are distinguishable from the instant matter.

IV. Conclusion

For the above reasons, the Trial Court orders are affirmed.

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ORDER

AND NOW, this 21st day of September, 2023, the August 11, 2023 orders of Court of Common Pleas of Philadelphia County are AFFIRMED.