Election Law; Fatal Defects; Statement of Financial Interests, Petition to Strike; Timeliness

Reuther v. Delaware Co. Bur. of Elections, 172 A.3d 738 (Pa. Cmwlth. 2017), allocatur granted Feb. 8, 2018, appeal docket 6 MAP 2018

The Supreme Court granted allocatur to review Commonwealth Court’s holding that a write-in candidate’s failure to file a Statement of Financial Interests (SOFI) is not “fatal” in terms of the candidate’s position on the municipal or general election ballot because noncompliance with the regulation is a matter for enforcement by the State Ethics Commission rather than the courts. Judge Brobson wrote the majority opinion joined by Senior Judge Leadbetter. Judge Covey dissented.

The facts are straightforward and not in dispute. As stated by the majority:

Candidate [Christine Rossi] received sufficient votes in the [Nether Providence] Township’s May 17, 2017 primary as a write-in candidate to win the Republican nomination for Township Tax Collector. The Delaware County Bureau of Elections (Bureau) notified Candidate that she was certified as the Republican nominee and instructed her to submit her SOFI to the Bureau and the Township by June 30, 2017, in order to have her name appear on the general election ballot . . . [o]n June 30, 2017, Candidate timely filed her SOFI with the Bureau but not the Township.

Based upon a Right-to-Know Law request made to the Township on September 6, 2017, Objectors [Christine A. Reuther and Ani Marie Diakatos] learned that Candidate had not filed her SOFI with the Township. On September 13, 2017, Objectors filed the [Emergency Petition for Relief Regarding the November 2017 General Election (Petition)] with the [Delaware County Court of Common Pleas (trial court)]. On September 14, 2017, Candidate filed her SOFI with the Township. The trial court conducted a hearing on September 18, 2017. On September 18, 2017, Candidate filed an answer with new matter to the Petition. On September 19, 2017, the trial court denied the Petition because there is no “statutory provision making [Candidate’s] filing of her [SOFI] either improper or a fatal defect to her candidacy” . . . [o]bjectors appealed to this Court.

Slip op. at 1-2 (record citations omitted).

Before deciding the issue of whether Candidate’s failure to file the SOFI with the Township was a defect fatal to her candidacy, the court first addressed Candidate’s and the Bureau’s assertion that the Petition was not timely filed because it was filed more than 70 days after certification of Candidate’s nomination. After reviewing the Election Code and relevant case law, the court concluded that where the General Assembly did not impose a deadline on when objectors may challenge the validity of a write-in candidacy, the court is prohibited from so doing. The court posited that an individual seeking to be a party’s nominee is different and distinct from a write-in candidate. While the Election Code expressly states the procedure an individual must adhere to in order to have his or her name placed on the primary ballot, the General Assembly has not provided similar procedures for write-in candidates. As no statutory deadline by which Objectors had to object to Candidate’s write-in candidacy existed, the court held that the Petition was timely (or more accurately not untimely) filed on September 13, 2017. See Slip op. at 2-6.

Turning to the issue of whether Candidate’s failure to file her SOFI with the Township is a fatal defect to her candidacy, the majority applied the following reasoning:

Relative to the substance of Objectors’ challenge that Candidate’s failure to file her SOFI with the Township is a fatal defect, there is no question that SOFI filings are mandatory before a candidate may hold public office. The General Assembly specifically pronounced in Section 1104(d) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1104(d): “No public official shall be allowed to take the oath of office or enter or continue upon h[er] duties, nor shall [s]he receive compensation from public funds, unless [s]he has filed a [SOFI] as required by [the Ethics Act].”

With regard to a candidate filing a petition to appear on the ballot, Section 1104(b) of the Ethics Act, 65 Pa. C.S. § 1104(b), requires the filing of a SOFI.  It provides, in relevant part:

(2) Any candidate for county-level or local office shall file a [SOFI] 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 [SOFI] shall also be appended to such petition.

(3) No petition to appear on the ballot for election shall be accepted by the respective State or local election officials unless the petition has appended thereto a [SOFI] as set forth in paragraphs (1) and (2).   Failure to file the [SOFI] 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).  Accordingly, an individual seeking to be placed on the ballot who fails to file his/her SOFI with his/her nomination petitions or papers and with the governing body of the local political subdivision must have his/her name stricken from the ballot when timely challenged. See [In re Nomination Petition of Guzzardi, 99 A.3d 381 (Pa. 2014)]. Section 1104(b) of the Ethics Act specifically applies to persons who become candidates by filing nomination petitions or papers.  The Ethics Act, however, does not contain a similar provision applicable to write-in candidates.

Nevertheless, Section 15.3(e) of the Ethics Commission’s regulations, 51 Pa. Code § 15.3(e), addresses the filing of a SOFI by write-in candidates.  It mandates:

A write-in[]candidate shall file a [SOFI] within 30 days of having been nominated or elected unless the person declines the nomination or office within that period of time.

(1) The [SOFI] shall be filed with the [Ethics] Commission for State[-]level public office and with the governing authority of the political subdivision wherein the person has been elected or nominated for county or local level office.

(2) For the purposes of calculating the 30-day period during which the [SOFI] shall be filed, the time shall commence on the date that the appropriate board of elections certifies the individual as the winner of a nomination or election.

51 Pa. Code § 15.3(e) (emphasis added).  “Candidate” is defined in the Ethics Act, in relevant part, as one who has “taken the action necessary under the laws of this Commonwealth to qualify [her]self for nomination or election[,]” and includes write-in candidates who have not declined within 30 days. Section 1102 of the Ethics Act, 65 Pa. C.S. § 1102.

Clearly, Section 15.3(e) of the Ethics Commission’s regulations requires Candidate, as a write-in candidate who has not declined the nomination, to file her SOFI with the Township within thirty days of the certification of the election results.  It does not, however, make the filing of a SOFI within that time period a condition precedent to Candidate’s name appearing on the municipal or general election ballot, as it does not contain fatal defect language similar to that contained in Section 1104(b)(3) of the Ethics Act or specify any consequence for failure to file a timely SOFI.

The lack of a consequence in Section 15.3(e) of the Ethics Commission’s regulations and the lack of the applicability of Section 1104(b)(3) of the Ethics Act to write-in candidates appearing on the municipal or general election ballot do not mean that there is no recourse or consequence when a write-in candidate fails/refuses to file a SOFI in compliance with the regulation.  Rather, complaints may be filed pursuant to Chapter 21 of the Ethics Commission’s regulations, 51 Pa. Code §§ 21.1-.30, pertaining to investigations.  Complaints involving late or deficient filings may be handled pursuant to Section 9.3 of the Ethics Commission’s regulations, 51 Pa. Code § 19.3, pertaining to late or deficient filings, which provides, in part:

(b) If a complaint is received alleging that a required filing is deficient or has not been made, the Commission may elect to proceed in the matter under this section rather than through the investigative procedures of Chapter 21 (relating to investigations).

(1) Upon election, the complainant will be notified of the decision as well as the final resolution of the matter.

(2) In determining whether to proceed under this section, the Commission may consider whether:

(i) The deficient filing or failure to file was intentional.

(ii) The filer had prior notice of the requirements of the act.

(iii) The filer has in the past complied with the act.

(c) The individual notified in accordance with subsection (a) has 20 days from the mailing date of the notice to correct deficiencies or to file a Statement of Financial Interests.  If an individual fails to file or to correct his statement within that time, the Commission will review the matter to determine whether a civil penalty is appropriate under the act.

(Emphasis added.)  Here, Candidate timely filed her SOFI with the Bureau but failed to file it with the Township.  Within one day of Objectors’ filing of the Petition, Candidate filed her SOFI with the Township, thereby bringing herself into compliance.  It is questionable whether the Ethics Commission would impose a penalty under these circumstances, but Objectors, nevertheless, could file a complaint with the Ethics Commission, if they so choose.

Because there is no provision in the Ethics Act, Election Code, or the Ethics Commission’s regulations that makes a write-in candidate’s failure to file a SOFI “fatal” in terms of the candidate’s position on the municipal or general election ballot, the Court holds that noncompliance with the regulation is a matter for enforcement by the State Ethics Commission in the first instance, and not the courts. We are mindful of our Supreme Court’s admonishment in [Hanaway v. Parkesburg Grp., LP, 168 A.3d 146, 154 (Pa. 2017)], that the courts may not add to a statute a provision which the General Assembly did not see fit to enact.  See Hanaway, 168 A.3d at 154.

Slip op. at 6-13 (footnotes omitted). The majority thus affirmed the trial court’s order.

Judge Covey joined the majority’s conclusion that the Petition to contest Candidate’s nomination was timely filed. However, she dissented as to the majority’s conclusion regarding the SOFI, summarized as follows:

. . . . I respectfully dissent from the Majority’s ruling that although Section 15.3(e) of the State Ethics Commission’s (Ethics Commission) Regulations (Regulation) is mandatory, it will not enforce the consequence of Candidate’s noncompliance with the law and Delaware County Bureau of Election’s (Bureau) specific instruction to timely submit her Statement of Financial Interests (SOFI) to the Bureau and Nether Providence Township (Township), thereby, allowing Candidate’s name to appear on the ballot.  The Majority’s holding is in complete derogation of the General Assembly’s clear intent in the Public Official and Employee Ethics Act (Ethics Act), rewrites the Regulation, creates two classes of candidates (those nominated by petition/paper (Nomination Candidates) and those nominated by write-in (Write-In Candidates)), and treats these two classes of candidates in distinctly different manners resulting in fundamental unfairness.

Slip op. (dissent) at 1-2 (footnote omitted).

Objectors sought allocatur and on February 8, 2018, the Supreme Court granted review as to the following issue, rephrased for clarity:

Does the failure of a write-in candidate or other candidate who obtains access to the ballot other than through the filing of a nomination petition to timely file a Statement of Financial Interests, as required by 51 Pa.Code § 15.3(e), constitute a “fatal defect,” precluding the appearance of the candidate’s name on the ballot?

For more information, contact Kevin McKeon or Dennis Whitaker.