City candidates removed from primary ballot

Cooper, Fallon lose out in council race as judge rules on challenges

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The primary might be in spring, but candidates fell from the ballots like autumn leaves yesterday in an eight-hour marathon of hearings before a Common Pleas judge who winnowed the field in two City Council races and an array of other offices.

Judge Joseph James presided in a daylong session, hearing challenges to nominating petitions for 59 candidates. The nonstop hearings dragged on even as courthouse hallways emptied until Judge James pleaded exhaustion and told the remaining candidates and their challengers to come back today.

Two of the major rulings yesterday tossed candidates off the May 15 Democratic primary ballot for two City Council seats.

Both of those challenges turned on whether candidates had properly filed ethics disclosure statements with the city clerk's office. All had filed statements with the Allegheny County Elections Department, but wording in an 18-year-old state ethics law made the failure to file the statements fully or on time a "fatal error" that required their removal.

Endorsed party candidate Rachel Cooper lost her spot on the ballot in Pittsburgh City Council District 9. She wanted to challenge incumbent Councilwoman Twanda Carlisle. The challenge to Ms. Cooper was brought by the sister of a third hopeful for that seat, Leah Kirkland. Ms. Kirkland will remain on the ballot.

The second case ended with the removal of Tom Fallon, a former aide to state Sen. Jim Ferlo. His ouster leaves a single challenger to District 7 incumbent Leonard Bodack. That challenger, Patrick Dowd, a teacher at The Ellis School and member of the city school board, had survived an earlier challenge to his ballot status brought by Anthony Lisowski, a supporter of Mr. Bodack.

Mr. Lisowski contended that Mr. Dowd had failed to attach a disclosure document to ethics statements filed with the clerk. Mr. Dowd testified, and presented witnesses, that he had made such a filing but that it had somehow been mislaid.

His lawyer, Isobel Storch, made clear that Mr. Dowd had made a detailed filing -- at times including his wife's income just to be safe -- with the county.

"We filed a day early just in case there was some sort of issue that we needed to address," Mr. Dowd testified.

After Judge James ruled that he could remain on the ballot, Mr. Dowd's lawyer appeared on behalf of a trio of residents in their successful bid to have Mr. Fallon thrown off the ballot in District 9.

Mr. Fallon was thrown off for failing to list his employment from 2006. At the time, he worked for Mr. Ferlo.

Both Ms. Storch and Mr. Dowd's campaign manager, Abby Wilson, ducked questions about whether they were engaged in a tactical maneuver to winnow the field and give their candidate better odds against the incumbent.

"Mr. Dowd was clearly defending his right and here there's a challenge by petitioners who said this petition was filed incorrectly," Ms. Storch said. "I'm an attorney, I'm an officer of the court and I represent whoever asks me to represent them in matters."

"We look forward to challenging Councilman Bodack and Councilman Bodack alone on May 15," Ms. Wilson said.

Most candidates survived their challenges and Judge James made clear from the bench that his preference was to err on the side of ballot access. In some instances, though, the Legislature and higher courts made leniency impossible.

Failure to properly file an ethics disclosure statement with local governments where candidates reside -- even when those same forms are filed with the county Elections Department -- was a "fatal flaw" that could not be reversed. The state Legislature in 1989 specifically wrote that language into law to reverse a differing opinion by the state Supreme Court.

"I don't relish taking people off the ballot," Judge James said during an afternoon break in the hearings. "I would like to keep as many people on the ballot as possible. But the case law is clear and the Legislature has spoken."

A hearing into petition challenges against Richard Swartz, who is seeking to challenge Dan Onorato in the Democratic primary for the county chief executive post, was postponed until March 30.

In other decisions, Judge James kept a Republican candidate for County Council on the ballot. Charles McCullough, an Upper St. Clair attorney, survived a challenge to his filing from a voter who argued that he had failed to list his position as solicitor for the township as a public office.

Mr. McCullough is a partner at Eckert Seamans, the firm that holds the contract to provide legal services to the township, and he explained to the judge that while he is designated by the firm to provide those services, the firm itself holds the contract with the township.

On the Democratic side of the County Council race, hopeful James Ellenbogen was kept on the ballot. One of his challengers had sought to have him removed because he is currently an employee of the Pennsylvania Department of Revenue. The county charter precludes local, state or federal employees from holding a seat on the council.

His attorney successful argued that while Mr. Ellenbogen might have to leave state employment before he could hold office, the charter does not disqualify him from running.

Justin Lewis and Arnold Steinberg, attorneys who want to unseat incumbent Uptown District Judge Oscar Petite, both faced challenges. Mr. Steinberg was removed from the ballot; Mr. Lewis remains on it.

Two candidates were tossed off the ballot because they already hold the office they're seeking. Lori Spando and David Donato, both members of the McKeesport Area school board, are in the middle of four-year terms but wanted to seek two open seats on the same board. The maneuver would have allowed the board to appoint replacements to the vacant spots later.

A change in the filing requirements required candidates to attest that they are not serving nonexpiring terms for the board positions they are seeking. The candidates had simply drawn a line through that section of the form.

Judge James ruled in favor of two other candidates for those seats, Joseph Chiaverini and James Brown, saying the intention of the Legislature was clear.


Dennis Roddy can be reached at droddy@post-gazette.com or 412-263-1965.


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