In Re Nomination Petition of Carroll
In Re Nomination Petition of Carroll
Opinion of the Court
OPINION
Appellant/candidate Timothy J. Carroll appeals from the order of the Commonwealth Court granting appellee/objector Dennis Garvey’s petition to set aside Carroll’s Nomination Petition for the Republican nomination for the office of Representative in the General Assembly from the 117th Legislative District, Wyoming County, Pennsylvania. The effect of the order below was to strike Carroll’s name from the primary ballot. For the reasons that follow, we reverse the order setting aside Carroll’s nomination petition and we order that Carroll’s name be restored to the primary ballot.
On March 1, 2006, Carroll, the Mayor of Dallas Borough, Wyoming County, filed a timely nomination petition with the Secretary of the Commonwealth seeking to have his name
(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.
* * * *
(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 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.
Id. § 1104(b).
On March 14, 2006, Garvey, a registered Republican and qualified elector in the 117th Legislative District, filed a petition to set aside Carroll’s nomination petition, alleging that Carroll’s Statement of Financial Interests was “fatally” defective under Section 1104(b). Specifically, Garvey claimed that Carroll had failed to list two affiliations he was required to disclose pursuant to Section 1105(b) of the Act, which provides, in relevant part:
(b) Required information. — The statement shall include the following information for the prior calendar year with regard to the person required to file the statement:
(1) Name, address and public position.
* * * *
(8) Any office, directorship or employment of any nature whatsoever in any business entity.
65 Pa.C.S. § 1105(b)(1), (8). First, Garvey alleged that Carroll violated subsection (b)(1) because he failed to list in Block 4 the unpaid public position he held as a board member and Assistant Secretary of the Dallas Area Municipal Authority (“DAMA”). Second, Garvey alleged that Carroll violated subsection (b)(8) because, in Block 13 of the Financial Statement — a block requiring filers to list “OFFICE, DIRECTORSHIP OR EMPLOYMENT IN ANY BUSINESS” — Carroll failed to list his uncompensated presidency of the not-for-profit “Timothy J. Carroll’s Mayors Club of Dallas Borough” (“Mayors Club”).
At the hearing, Carroll testified that he created the Mayors Club to fund community projects. The Club is funded entirely by public donations, including donations by Carroll and people serving on borough council who donate their public salaries. Carroll testified that he gives the Club his entire salary of $600. The average balance in the Club’s account is approximately $3,000.00. This money is used to finance projects that cannot be funded with taxpayer money. For example, the Club assisted the local Boy Scout troop, donated $300 to a scholarship fund, and gave $200 to a group that was assisting victims of Hurricane Katrina. Projects undertaken by the Club are discussed with borough council and reflected in the minutes of borough council meetings. Carroll receives no salary, income, or any benefit in kind from the Club. When asked why he did not report his association with the Club on his Statement of Financial Interests, Carroll responded that he viewed the Club to be part of his duties as Mayor, and that he received no compensation in connection with it. N.T. 3/20/06, 14-19.
With regard to his positions with DAMA, Carroll testified that he was appointed as a consequence of his position as Mayor, and that he received no salary, income or any other benefit as a result of serving on DAMA. Carroll further testified that he did not report this position on his Statement of Financial Interest for the same reason he did not report the Mayors Club: he received no compensation for his work and
On March 22, 2006, Judge Kelley issued a single-judge order and memorandum opinion which granted Garvey’s petition and “regrettably” set aside Carroll’s nomination petition. In Judge Kelley’s view, the case was “controlled by” In re Nomination Petition of Anastasio, 820 A.2d 880 (Pa.Cmwlth. 2003), aff'd per curiam without opinion, 573 Pa. 512, 827 A.2d 373 (2003). In Anastasio, the candidate (there, for local office) had entered “None” in block 10 of the Financial Statement — a block which directs disclosure of “direct or indirect sources of income.” The candidate in fact had employment income. An objector filed a petition to strike, alleging a fatal defect; the trial court agreed and struck the nomination petition; a three-judge panel of the Commonwealth Court affirmed the order in a brief published opinion; and this Court affirmed per curiam, by a vote of 4-3. Judge Kelley reasoned that, like the candidate in Anastasio, Carroll had “failed to designate anything on his financial statement from which a reviewer could ascertain that he served as the President of the Club and on the Board of DAMA.”
Judge Kelley also deemed the total non-disclosures here to be sufficient to distinguish the case from In re Nomination Petition of Kerry Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004). In Benninghoff, the candidate was an incumbent state representative seeking reelection who failed to list the Commonwealth as a direct source of income in Block 10. Benninghoff did, however, advert to his salaried position as a state representative (a salary which was of public record) in multiple other blocks on the form, and he disclosed supplemental income. This Court held that Benninghoff had “substantially complied” with the requirements of the Ethics Act, and thus he should be permitted to amend the form. We therefore reversed the decision below, which had granted a petition to set aside Benninghoff s nomination petition.
Finally, although Judge Kelley acknowledged Carroll’s argument that the non-disclosures at issue here involved uncompensated service, he summarily rejected that claim as follows:
In his brief to this Court, Carroll argues that the fatal defect rule in Section 1104(b)(3), and as construed in Anastasio, does not apply to a failure to report his non-compensated positions with DAMA and the Mayors Club. Carroll notes that the Act speaks to financial interests, is designed to expose potential financial conflicts, and thereby acts to strengthen the faith and confidence of the people in their government by assuring the impartiality and honesty of public officials. Brief for Appellant, 7 (citing 65 Pa.C.S. § 1101.1(a)). Carroll argues that the fatal defect rule is designed to ensure that financial disclosures are fully and timely made, so that they may inform the public about a candidate’s financial interests, thus facilitating the ability of the public to assess whether those financial interests are likely to influence, or conflict with, the candidate’s execution of his public responsibilities. Consistently with this purpose, Carroll notes, the rule to date has been applied to terminate candidacies only where the candidate failed to file a timely financial statement,
Carroll notes that none of the heretofore-recognized reasons for disqualification exists here. He filed his nomination petition and Statement of Financial Interests in timely fashion; he filed in the right place; and he did not fail to disclose any relevant financial interest. On the last point, Carroll notes that, in the cases where this Court has passed upon alleged defects in the substance of financial statements, we have applied the fatal defect rule only where there were “errors of omission relating to a candidate’s financial interests.” Id. at 9, citing In re Nominating Petitions of Braxton, 583 Pa. 35, 874
Because he receives no compensation from, and had no financial interest in, either of the associations he failed to report, Carroll argues that his Financial Statement cannot be deemed defective. He then cogently argues that:
To decide otherwise would mandate the reporting of any and every voluntary or not-for-profit affiliation which a candidate or public official may hold for fear of falling into the technical trap created by the Commonwealth Court’s ruling ..., such as President of the Parent Teachers Association, Treasurer of the Township Youth Soccer Program, Chair of a church committee and a myriad of others.
The Legislature intended to require the disclosure of potential financial entanglements by Commonwealth officials and employees. The financial disclosure rules are not intended to deter those serving as elected officials from continuing to contribute to community life in other ways. To the contrary, the Legislature recognized that civically active citizens are likely to both run for political office and to continue to participate in ordinary civil life. See 65*633 Pa.C.S. [§ ] 1101.1(b) (“It is recognized that many public officials, including most local officials and members of the General Assembly, are citizen-officials who bring to their public office the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions.”).
Here, Garvey seeks to disqualify Carroll not because he failed to disclose positions for which he is compensated or businesses in which he has a financial interest but merely because he failed to list his position with a non-profit organization and his service on a municipal authority, both undertaken solely as an adjunct to his official duties as borough mayor.
Brief for Appellant, 9-10.
In addition to his broad argument stressing that the financial statement required by the Ethics Act is concerned only with financial interests, Carroll also addresses each of the affiliations at issue. With respect to his role in the Mayors Club, which Garvey claimed had to be disclosed as a “business entity” affiliation under Section 1105(b)(8), Carroll notes that the term “business entity” is not defined in the Ethics Act. But, Carroll argues, the elemental term “business” is defined in the Act, and in a way that makes plain that it encompasses only for-profit entities: “[a]ny corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit.” 65 Pa.C.S. § 1102 (emphasis supplied). Under the plain language of this definition, Carroll argues that his failure to list his position as president of the non-profit Mayors Club did not violate the Ethics Act because there is “simply nothing” in the Act that requires disclosing affiliations with nonprofit business entities. Moreover, Carroll argues, even if this plain language could be construed to be ambiguous, it would be inequitable and unfair to fault him for failing to predict such an interpretation. Carroll accurately notes that there is no case decision, and no rulings or information from the
Turning to DAMA, where his affiliation is as an unpaid Board member and Assistant Secretary, Carroll argues that he serves on the Authority only by virtue of his position as Mayor. Because he listed his mayoralty, Carroll argues, he also effectively disclosed this lesser-included affiliation. In any event, Carroll notes, nothing in the fact of this position, which is but an incident of his (disclosed) public position as Mayor, speaks to his financial situation, as he has no financial stake in DAMA and he receives no compensation. Thus, had he listed the affiliation, Carroll argues, it would have contributed nothing to the public’s understanding of his financial interests.
Finally, and in the alternative, Carroll argues that even if his Financial Statement could be deemed defective for failing to list these two unpaid associations, he should be permitted to amend it pursuant to the substantial compliance rule announced in Benninghoff.
Garvey counters with an absolutist position. He argues that Carroll’s “errors of omission” were fatal defects and thus his nomination petition was rightly set aside. Thus, in Garvey’s view, Section 1105(b)(8) of the Act “mandates” that a candidate “disclose any office of any nature whatsoever in any business entity.” Brief of Appellee, 6. Carroll’s position as president of the Mayors Club therefore had to be reported on his Financial Statement. Garvey stresses the broad language of the provision when read in isolation, i.e., “any office” of “any nature” in “any business entity.” Garvey then notes that the Mayors Club is an active non-profit corporation registered with the Pennsylvania Department of State, and Carroll is its president and sole officer. Therefore, Garvey argues, Carroll had to report this business “office” and his failure to do so was a fatal defect. Notably, Garvey does not address Carroll’s
With regard to Carroll’s positions with DAMA, Garvey argues that Section 1105(b)(1) “obligates” candidates to disclose public positions they hold or held. Garvey then argues that appointed members of municipal authorities are public officials, and therefore, Carroll’s failure to report his position with DAMA was an independent fatal defect. Moreover, Garvey disputes Carroll’s argument that his service on DAMA was a mandatory incident of his elected position as Mayor; to the contrary, Garvey maintains, this association was “purely voluntary.”
Garvey also disputes Carroll’s argument that he substantially complied with the Act. Garvey argues that Carroll’s omissions in Blocks 4 and 13 involve associations not otherwise accounted for in the Financial Statement, and that fact renders inoperable the substantial compliance rule set forth in Benninghoff. Garvey concludes that either or both of Carroll’s omissions rendered his Statement of Financial Interests fatally defective under Section 1104(b)(3) of the Act, warranting that his nomination petition be set aside.
Notably, at the outset of his otherwise straightforward argument, Garvey acknowledges that the “purpose” of the fatal defect rule is “to insure public disclosures of relevant financial information.” Brief of Appellee, 10 (emphasis added). Yet, Garvey never discusses the fact that neither of Carroll’s unreported positions implicated his financial information. Nor does Garvey argue, for example, that there is some indirect way in which Carroll’s financial situation was implicated by these non-financial affiliations. Instead, Garvey focuses on the language of the Section 1105(b) affiliations in isolation, separate and apart from the overall financial emphasis of the form and the Act, as well as the purpose he has generally acknowledged, and then declares that any omission of information amounts to a fatal defect. Thus, there is a missing essential ingredient when Garvey later declares that the non-disclosures here deprived voters of “an opportunity to accurately inspect Carroll’s financial portfolio.” Id., 17.
Preliminarily, we note that the court below plainly erred to the extent it deemed the issue here to be “controlled by” the Anastasio case. Anastasio involved a failure to disclose a
The intent and purpose of the Ethics Act is not shrouded in mystery. The Act is part of the “accountability” section of Title 65, which governs “public officers.” In Section 1101.1 of the Act, the General Assembly explicitly set forth its “purpose” as follows:
(a) Declarations. — The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this chapter shall be liberally construed to promote complete financial disclosure as specified in this chapter. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, the General Assembly by this chapter intends to define as clearly as possible those areas which represent conflict with the public trust.
Section 1102, the definitions section of the Act, defines “financial interest” as: “Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness.” Id. § 1102. As already noted in discussing Carroll’s argument, the definitions section also defines the term “business” in a way that supports a reading that it intends to cover only for-profit entities.
Turning to Carroll’s uncompensated positions with DAMA, we will assume for purposes of decision that these positions are indeed “public positions” for purposes of subsection 1105(b)(1) but, like Carroll’s association with the Mayors Club, we conclude that disclosure was not required because the association did not remotely implicate Carroll’s financial interests. Viewed in isolation, subsection (1) is unlike the other subsections in 1105(b) in that it does not address matters that necessarily involve financial information. Instead, the subsection concerns what amounts to the filer’s identifying information: i.e., his “name, address and public position.” This information reveals who it is that is filing and why. It is important to remember that the Act, and the Commission’s form, governs a wide variety of people in public service, people who may have to file for different and overlapping reasons.
For purposes of the Act’s fatal defect rule — a rule which applies only to the extent that a filer is filing as a “candidate” for office, «see 65 Pa.C.S. § 1104(b) — we do not think that the directive that candidates list their “public position” (notably, the General Assembly employed the singular) can be viewed in splendid isolation from the rest of the Act, and thus as requiring a detailing of all existing public associations, irrespective of whether they implicate a candidate’s financial interests or reveal the office the candidate is seeking. A reasonable person interested in seeking public office who consulted the statute, the Commission’s form, and its accompanying instructions — all of which speak in terms of financial interests — could reasonably understand the subsection (1) requirement to apply only to those “positions” necessary to identify the candidate, the office he seeks, and his financial interests.
Finally, in determining whether the General Assembly can be said to have intended the fatal defect rule to apply to the sort of “non-disclosure” alleged here, we must be “mindful of the general command that we presume that it ‘does not intend a result that is absurd, impossible of execution or
It is recognized that many public officials, including most local officials and members of the General Assembly, are citizen-officials who bring to their public office the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this chapter shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this chapter.
65 Pa.C.S. § 1101.1(b). Many candidates for public office— like many current holders of public office — have numerous public associations and positions in addition to their official, paid positions. Many of these positions do not involve a financial interest and possible concomitant “violation of the public trust.” Id. § 1101.1(a). These associations simply reflect active lives of good citizenship. Upon reading the Act as a whole, and with an eye to its obvious, salutary purpose, we do not believe that the General Assembly remotely intended the disproportionate consequence of denying a candidate the right to run for office to attend a failure to disclose a public “position” which does not involve the candidate’s financial interests.
For these reasons, we hold that the court below erred in finding that Carroll’s Statement of Financial Interests was fatally defective and in granting Garvey’s petition to set aside Carroll’s nomination petition. Accordingly, we reverse the order of the Commonwealth Court and direct that Carroll’s name be restored to the primary ballot.
. Garvey's petition was filed in the Commonwealth Court's original jurisdiction, pursuant to Section 764(2) of the Judicial Code. 42 Pa.C.S. § 764(2). This Court’s direct appeal jurisdiction over Carroll’s appeal is pursuant to Section 723(a) of the Code. Id. § 723(a).
. Subsection 1104(b)(2) governs candidates for county or local office and thus is not relevant here.
. The State Ethics Commission's instructions provide, with respect to Block 4:
Please check the appropriate block (seeking, holding, held) for each position you list in the blocks below. List all of the public position(s) which you are seeking, currently hold or have held in the prior calendar year. Please be sure to include job titles and official titles such as "member” or "commissioner” (even if serving as alternate/designee).
. In Block 5, Carroll further identified these public positions, as required.
. The Ethics Commission's instructions for Block 13 provide:
OFFICE, DIRECTORSHIP OR EMPLOYMENT IN ANY BUSINESS ENTITY: List your office, directorship or employment in any business. If you do not have such a position to report, then check “NONE”.
. In his petition to set aside, Garvey also alleged that Carroll failed to list, as a direct or indirect source of yearly income totaling $1300 or
. Citing In re Petition of Cioppa, 533 Pa. 564, 626 A.2d 146, 149 (1993).
. Citing Anastasio, supra.
. Citing In the Matter of Nomination Petition of Wilson, 728 A.2d 1025 (Pa. Cmwlth. 1999).
. We recognize that there are two possible constructions of the "organized for profit” reference in the Act's definition of "business,” one which would construe the reference as modifying all previous examples in the definition (which is flow Carroll reads the statute), and one which would construe it as applying only to the last antecedent example. See, e.g., McKinley v. Commonwealth of Pennsylvania, Dept. of Transp., 564 Pa. 565, 769 A.2d 1153, 1160 n. 10 (2001) (discussing "last antecedent rule” of grammatical construction). To the extent the definitional language is ambiguous, we may look to principles of construction. 1 Pa.C.S. § 1921(b); Canvass of Absentee Ballots, supra. For reasons set forth at greater length below, the plainly-stated purpose of the statute, and the harsh consequence that would accompany a construction that would lead to a finding of a material non-disclosure, convince us that any ambiguity in the definition should be construed most favorably to candidates seeking ballot access.
. Section 1105(a) & (b) provide in full:
(a) Form. — The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement 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.
(b) Required information. — 'flic statement shall include the following information for the prior calendar year with regard to the person required to file the statement:
(1) Name, address and public position.
(2) Occupation or profession.
(3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased [ ] or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions.
(4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal or secondary residence of the person filing shall not be included.
(5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges.
(6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend” shall not include a registered lobbyist or an employee of a registered lobbyist.
(7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity.
(8) Any office, directorship or employment of any nature whatsoever in any business entity.
(9) Any financial interest in any legal entity engaged in business for profit.
*640 (10) The identity of any financial interest in a business with which the reporting person is or has been associated in the preceding calendar year which has been transferred to a member of the reporting person’s immediate family.
Id. (footnote omitted).
. See 65 Pa.C.S. § 1104 (requiring public officials, public employees, and candidates for state-level, county-level, and local-level public office to file Statement of Financial Interests).
. Notably, Carroll testified that he did not report the disputed associations because, inter alia, he received no compensation from them.
. In light of our disposition, we do not address the alternative arguments Carroll has forwarded in support of reversal.
Dissenting Opinion
dissenting.
While the Majority emphasizes our mandate in statutory interpretation to effectuate the intent of the General Assembly, and acknowledges that legislative intent typically is reflected in a statute’s plain language, it construes the Public Official and Employee Ethics Act (Ethics Act or Act), 65 Pa.C.S. §§ 1101, et seq., to permit Timothy J. Carroll (Candidate) to appear on the primary ballot despite his failure to make a mandatory disclosure under the Act. Because I believe this result defies the Ethics Act’s plain language, I respectfully dissent.
The Commonwealth Court found fatal to Candidate’s nomination petition his failure to disclose his positions as President of the not-for-profit “Timothy J. Carroll’s Mayors Club of Dallas Borough” (the Club), see id. § 1105(b)(8) (requiring disclosure of “[a]ny office, directorship or employment of any nature whatsoever in any business entity”), and as board member on the Dallas Area Municipal Authority (DAMA), see id. § 1105(b)(1) (requiring disclosure of “[n]ame, address and public position”). I find no cause to disagree with the Majority to the extent that it finds that Candidate was not obligated to disclose his uncompensated office as president of the Club. I would not reach that question, however, because I believe Candidate’s failure to disclose his position as board member for DAMA standing alone requires that his nomination petition be set aside. The analysis that follows, accordingly, concerns only that aspect of the Majority’s opinion that forgives Candidate’s failure to disclose his undisputedly public position with DAMA.
The Ethics Act requires each public official and public employee to file an annual statement of financial interests (Statement), 65 Pa.C.S. § 1104(a), and requires a candidate for local, county, or state office to file his Statement on or before the last day for filing a petition to appear on the ballot. Id. § 1104(b). The Statement is to be filed on a form promulgated by the State Ethics Commission (Commission), id. § 1105(a), and must contain the information enumerated in § 1105(b). That section provides, inter alia, that a candidate for public office “shall” disclose his or her “[n]ame, address and public position.” 65 Pa.C.S. § 1105(b)(1). The Statement of Financial Interests form (Form) promulgated by the Commission is consistent with this provision, requiring, in block 4, the candidate to disclose any “PUBLIC POSITION OR OFFICE (member, Commissioner, job title, etc.) [the candidate is] seeking[,] hold[s, or] held.” The Ethics Act leaves no doubt as to the sanction for noncompliance with § 1105: “Failure to file the statement in accordance with the provisions of this chapter shall ... be a fatal defect to a petition to appear on the ballot.” Id. § 1104(b)(3) (emphasis added).
The “fatal defect” rule is the product of the General Assembly’s amendment to the Ethics Act following rulings by this Court allowing for some modicum of leniency in addressing candidates’ good faith failures to observe the Act’s require-
The Majority acknowledges that § 1105(b)(1) differs in its emphasis on identifying information from §§ 1105(b)(2)-(10), which require a candidate to divulge information explicitly directed at revealing nascent financial conflicts of interest. Maj. Op. at 586 Pa. 640, 896 A.2d at 575 (acknowledging that “subsection (1) is unlike the other subsections in 1105(b) in that it does not address matters that necessarily involve
The Majority maintains that a contrary reading would lead to an absurd result unintended by the legislature. To this end, the Majority adopts wholesale Appellant’s doomsday scenario: that to require disclosure of his position with DAMA, a “position” he does not dispute is “public” for purposes of the Ethics Act,
Candidate’s litany, however, is a strawman argument to the extent that it is any argument at all. No positions in the above list would be interpreted by reasonable people as “public positions” for purposes of the statute. To find otherwise would require disregarding the narrower definition of “public” manifest in the Act’s full title and its definitional section. See 65 Pa.C.S. § 1101 (identifying the statute as the “Public Official and Employee Ethics Act”); § 1102 (defining a “public official” as “[a]ny person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof’ and “public employee,” in relevant part and with exceptions immaterial to this discussion, as “[a]ny individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature”).
To the extent the Act is less than clear, I would look to the Form promulgated by the Commission in satisfaction of its express statutory responsibility, 65 Pa.C.S. § 1105(a), which effectively manifests its administrative interpretation of the Act. In block 4, the Form requires disclosure of “PUBLIC
Please check the appropriate block (seeking, holding, held) for each position you list in the blocks below. List all of the public position(s) which you are seeking, currently hold or have held in the prior calendar year, Please be sure to include job titles and official titles such as “member” or “commissioner” (even if serving as an alternate/designees).
Maj. Op. at 586 Pa. 627 n. 3, 896 A.2d at 578 n. 3 (emphasis in original). “[A]n administrative agency’s interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference.” Borough of Pottstown v. Pennsylvania Mun. Retirement Bd., 551 Pa. 605, 712 A.2d 741, 744 (1998); see 1 Pa.C.S. § 1921(c). Of course, where an administrative interpretation of a statute is inconsistent with the statute itself, or where the statute’s meaning is unambiguous, administrative interpretations carry little or no weight. Pottstown, 712 A.2d at 744; 1 Pa.C.S. § 1921(c). In the instant case, however, either § 1501(b)(l)’s requirements are not clear on their face and are clarified by the Ethics Commission’s uncomplicated reiteration on the Form and its accompanying instructions of the requirement that candidates disclose “public position[s]” without regard to whether the positions are compensated, or the statute is unambiguous and means precisely what it says — that a candidate’s “public position[s],” like his name and address, are disclosures required by the Act.
The Form and accompanying instructions also resist the Majority’s attempt to limit the “public position” language to apply only to “public employees,” its only effort at giving effect to the language. The instructions’ express requirement that a signatory detail not only positions currently held but those formerly held during the prior year seldom will apply to public employees filing the Form for purposes of continuing employment.
I think it far less absurd to interpret 65 Pa.C.S. § 1105(b)(1) consistently with the Commission to require disclosure of any “public position” held in the year preceding execution of the Form. The Majority’s reading of § 1105 effectively reduces the plain language requirement that candidates for public office disclose any “public position” to mere surplusage, an untenable result where an equally reasonable construction of the Act gives substantial effect to that term and all others. I detect no harm in the prospect that the statute should be construed in a way that dictates broader disclosures from prudent candidates for office; certainly, the reading advanced herein is neither absurd nor incapable of execution. Moreover, this reading has the virtue of flowing directly from, and effectuating word by word, the Act’s plain language.
Even if our ruling were to prod candidates to read the Act overinclusively, little obvious harm would descend from additional disclosures, the burden of which would be offset by the benefit to the electors both in knowledge of whom they are electing and in their confidence that the Commonwealth privileges the sort of transparency the Ethics Act plainly is designed to enhance. For the same reasons, no serious
In sum, I believe any reasonable candidate reading the Ethics Act in conjunction with the Commission’s Form, both of which require the disclosure of any “public position,” would in prudence disclose a position like Candidate’s board membership with DAMA. In failing to do so, Candidate violated the letter and the spirit of the Act.
. My inclination is to construe the term "public position" narrowly to avoid undue challenges to would-be candidates’ ballot access. That said, even on a narrow definition, board membership with a municipal sewage authority, which funnels substantial public funds into a function
. In Cioppa, Chief Justice Nix authored the opinion announcing the judgment of the Court. Then-Justice Cappy concurred in the result, and Justice Papadakos authored a concurring opinion joined by Justice Larsen. Justices McDermott and Zappala did not participate in the decision.
. The language of § 1104(b)(3) does not differ materially from that of former § 404(b).
. In Benninghoff, Mr. Justice Castille interpreted Cioppa as signaling that the only fatal defect is timeliness. 852 A.2d at 1192 (Castille, J., concurring) ("Given the occasion for the amendment [to the Ethics Act], I would conclude that fatal defects are limited to untimely filings." (emphasis in original)). I do not read the Court's decision in that case so narrowly, though certainly it was couched in terms of the issues of timeliness that then faced this Court. To the extent the opinion announcing the judgment of the Court in Cioppa was correct that the
. This "could reasonably understand” formulation, it bears noting, is inconsistent with Pennsylvania courts’ prior indifference to whether a candidate's failure to make a mandatory disclosure was in good faith. See In re Nomination Petition of Braxton, 874 A.2d 1143 (Pa. 2005); In re Nomination Petition of Anastasio, 820 A.2d 880 (Pa.Cmwlth. 2003), aff'd per curiam, 573 Pa. 512, 827 A.2d 373 (2003).
. See supra n. 1 and accompanying text.
. Notably, the Act’s definition of "public official” does not require that the official be compensated.
. I share the Majority's concern that an overbroad definition of "public position” will simultaneously impose a potentially onerous burden on the most civically active candidates for office, and might leave parties acting in good faith vulnerable to specious challenges. As noted, infra, I believe that the distinction drawn by the Commission between "public position” and "public office” is material, and consistently with the Ethics Act requires disclosure of the position here at issue. I also note, however, that the Act already contains the seeds of much mischief in its broad definition of "public official." Perhaps, to the extent the result reached herein does not reflect legislative intent in either direction, the General Assembly will clarify the disclosures necessary to strike a fair balance between ballot access and transparency.
. Admittedly, the Act envisages circumstances where former public employees will file such a form. See 65 Pa.C.S. § 1104 (requiring a
. For the same reason, I do not believe our ruling with regard to the term "public position" bears on the meaning of "public official," which, as noted, supra n. 7, is defined broadly by the Act.
. My resolution of this issue would leave open the possibility that the "substantial compliance” exception carved out by this Court in In re Nomination Petition of Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004), and distinguished by the Commonwealth Court in this case, would excuse Candidate’s nondisclosure in this case. Although he opined that his appointment to the board of DAMA by the Dallas Borough Council occurred only in virtue of his office as Mayor, Candidate conceded that the position was neither a direct nor a necessary consequence of that office. See N.T. at 24 (acknowledging that the appropriate representative to DAMA was not necessarily the Mayor, but rather “whoever council would appoint,” and that his position as Mayor did not "mandate that [he] serve with a municipal authority,” and that he could have turned the appointment down). Thus, contra our ruling in Benninghoff, the face of the Candidate's form neither expressly revealed his position on the board of DAMA nor justified even the most astute reader in inferring, without more, that one necessarily entailed the other. Benninghoff is distinguishable and should afford Candidate no quarter from the consequences of his non-disclosure.
Reference
- Full Case Name
- In Re Nomination Petition of Timothy J. CARROLL Appeal of Timothy J. Carroll
- Cited By
- 45 cases
- Status
- Published