Appeal in Brady candidacy is heard

HARRISBURG - When the carpenters' union put money aside for Bob Brady's pension, was it income?

That was the essence of a case fought passionately before Commonwealth Court yesterday - a case that could determine whether U.S. Rep. Brady remains on the ballot in Philadelphia's May 15 Democratic mayoral primary.

Brady's lawyer pounded the lectern. The other side's lawyer took a verbal pounding from the bench for arriving late. And the presiding judge used the word troubling several times to describe Brady's pension arrangement.

The hearing before the three-judge panel comes two weeks after a lower court judge ruled that Brady's omission of the carpenters' contributions to his pension was not a "fatal defect" in the candidacy papers he filed with the state.

Six supporters of rival mayoral candidate Tom Knox brought the challenge, claiming that Brady had failed to report almost $14,000 a year in pension-fund payments made on his behalf by the union. State law requires candidates to disclose sources of income.

Under the arrangement, Brady would retain continuity of service and his seniority in the union pension plan while providing no-fee consulting services to the union.

Yesterday, Commonwealth Court Judge Dan Pellegrini, noting the importance of the case, initially granted the parties 10 minutes each, two minutes more than usual to make their arguments.

But he ignored his timer and the hearing, which was marked by lively exchanges between the lawyers and the judges, went on for almost an hour.

Lawyer Paul Rosen, representing the challengers, argued that the pension payments qualified as income under state law requiring candidates to disclose "any money or thing of value."

"Brady himself said he recognized these as consulting payments," Rosen said. "It's absolutely mandated to be recorded. It's a thing of value."

Senior Judge James R. Kelley asked whether Brady had not already complied by reporting the carpenters' contributions on his annual congressional disclosures, required by federal law.

Rosen, his voice animated as he gestured toward the bench, said courts had previously ruled that such federal filings are not a substitute for state-required disclosures, and that a candidate should "disclose everything unless told not to."

But Brady's lawyer, Stephen Cozen - at times pounding his fist on the rostrum - said the first judge to rule on Brady's case, Patrick J. Toole of Luzerne County, had erred in finding that the pension contributions were income. He also accused Rosen of "fabricating" the challenge.

"There is nothing that gives anybody clear guidance that this was unreported income," Cozen told the judges. "This is what we call making up a case as you go along to prove a point."

He said the money is not deposited into an account for Brady, but placed in a combined pension-fund account.

Pellegrini noted that Toole had concluded that state law was unclear on the filing requirements, but that wherever possible, courts should lean toward placing candidates on the ballot and letting voters decide.

But Pellegrini reserved his most pointed questions for Cozen, using the word troubling several times to describe his feelings about the pension contributions.

"It's troubling that a public official would get $13,000, and it's not income and it's not anything," the judge said.

Cozen replied, "I look at what the law requires and there is nothing under the definition of income to describe a pension plan."

He said Brady receives nothing from the carpenters' union other than credit for continuity of service - so "when he's finished with his congressional duties he could go back and work as a carpenter." Brady, who turned 62 last week, worked as a carpenter decades ago, before getting into city politics.

The day's proceedings did not start off well for the Knox supporters' legal team, whose traffic-related tardiness forced a change in the court schedule. From the bench, Pellegrini asked who the late party was - and when Rosen identified himself, Pellegrini stared him down and said, "Don't be late. The sun is shining, there's no reason."

On Monday, the state Supreme Court denied without explanation an emergency petition by Brady's lawyers to hear the case instead of the lower court, an option the state's highest court can exercise as part of its oversight of the courts.

After yesterday's hearing, Cozen said he was disappointed that the Supreme Court did not take the case, inasmuch as it meant a longer legal battle for his client while he tries to campaign for mayor.

"I want to remove the cloud over Congressman Brady's head," Cozen said.

Rosen said the court could issue an order on Brady's ballot status within a day or two and file an opinion later. If the Commonwealth Court panel rules in Brady's favor, Rosen said, he wouldn't decide on whether to appeal to the State Supreme Court until he saw the ruling.

As part of the appeal to Commonwealth Court, Rosen is disputing Toole's ruling on the first issue raised by the challengers: Brady's omission of the pension he earns from having worked in several City Hall jobs in the 1970s and '80s. This, Toole ruled, was a "government-mandated" pension that candidates are not required to disclose.

For continuing coverage of the mayor's race, including our reporters' blog and profiles of the candidates, go to http://go.philly.com/mayor

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