DV Journal

She’s back on the ballot.

On Thursday, three Commonwealth Court judges—Anne E. Covey, Gloria Dumas, and Matthew S. Wolfe- reversed a Montgomery County judge, allowing Lower Merion School Board President Kerry Sautner’s name to appear on the May 20 Democratic primary ballot.

Lower Merion resident Harshal Dear, a registered Democratic voter, had filed a challenge against Sautner to keep her off the ballot because Sautner, who is seeking reelection, filed an incorrect financial information form with the Board of Elections.

Previously, Judge Carolyn Carluccio determined Sautner had not properly filed out her required financial disclosure form, even after Carluccio allowed her to try again and resubmit it. Sautner filed four forms with the court, the fourth statement in a motion to reconsider. It included the section she had previously left blank, asserting that she had no ownership in a property leased by her employer, Eastern State Penitentiary Historic Site, where she is the president and CEO, according to the Commonwealth Court ruling.

The lower court judge denied her motion to reconsider, noting that her repeated failure to fill out the form correctly “suggests a purposeful avoidance of providing a definitive answer to that question.”

In her appeal, Sautner claimed she did not act “in bad faith” and Carluccio should have accepted her fourth financial form, which was filed after the judge had already ruled in favor of Dear.

In their decision, the Commonwealth Court judges wrote, “Candidate may not have read the instructions and repeatedly misunderstood the need to complete block 8. Indeed, in those cases, we permitted candidates to file amended statements despite omitting tax liens, judgments, and income, much like Candidate’s incomplete Block 8. Accordingly, we reverse the trial court and direct the (Election) Board to accept Candidate’s Final Amended Statement.”

“In light of the longstanding policy to protect a candidate’s right to run for office and the electorate’s right to vote for the candidate of its choice, Candidate must be restored to the ballot,” the Commonwealth Court ruled.

Timothy Ford, Sautner’s lawyer, said, “I’m happy to see the Commonwealth Court recognize what we knew all along: Kerry made all of her required disclosures, even over-disclosing, and there was never any evidence whatsoever that Kerry filled out her forms in bad faith. Kerry is the kind of leader we need in our community, and I’m glad that the Commonwealth Court gave voters in the Lower Merion School District the chance to see Kerry’s name on the ballot for reelection in next month’s primary.”

Dear’s lawyer, Christian Petrucci, said, “The Commonwealth Court’s opinion is perplexing. The panel, consisting of two Democrats and one Republican, did not address whether Judge Carluccio had abused her discretion in granting Ms. Dear’s objection, which, respectfully, should have been the entire inquiry.

“All of the cases the Court relied upon dealt with the opportunity to amend a Statement of Financial Interests a single time, not multiple times, and certainly not following a court-ordered (finding) of a deficient filing. The Court even noted the Election Board’s objection that the candidate should not be permitted to make unlimited amendments, but did not give any weight to, or even address that objection.

“Finally, the Court rejected Judge Carluccio’s finding that the filing of multiple invalid SOFIs constitutes bad faith. They, instead, imputed good faith to the candidate with admittedly no evidence to do so. They said that since the candidate did not testify, we don’t know what her intent was. Considering the judge did not give us an opportunity to cross-examine the candidate, we never will.  A remand to the trial judge for the testimony of the candidate was at least warranted.”

Petrucci added, “Ms. Dear is considering her options.”

A judge ruled Thursday that Lower Merion School Board President Kerry Sautner cannot be on the May 20 Democratic primary ballot.

Montgomery County Common Pleas Judge Carolyn Tornetta Carluccio had ruled earlier that Sautner failed to fill out her financial disclosure form properly. Carluccio then gave Sautner and another board member 24 hours to correct their forms. But Sautner still did not sufficiently document her financial filing.

After Carluccio’s original ruling, a lawyer for Sautner filed a motion to reconsider, which Carluccio denied, saying her March 31 ruling stands.

Lower Merion voter Harshal Dear, a registered Democrat, had filed the challenges to the ballot access paperwork of both Sautner and School Board Member Anna Shurak. Shurak corrected her paperwork sufficiently within the 24-hour grace period.

Dear told DVJournal she had considered running herself, but as a federal employee, she is precluded from doing so by the Hatch Act. She was dismayed by the Lower Merion Democrats’ endorsement process and ultimately challenged four candidates over their documentation.

Dear met lawyer Christian Petrucci, who went over her paperwork and represented her pro bono to contest Sautner and Shurak’s campaign filings. Petrucci, secretary for the Lower Merion and Narberth GOP, brought in Philadelphia Republican election lawyer J. Matthew Wolfe as co-counsel.

“The judge was fair,” Dear said, after the ruling on Thursday. “She had given (her) enough time to amend the forms.”

“While (case law) permits a court to allow amendment, it does not require a court to do so and certainly does not require or suggest that any candidate should have multiple bites at the apple in providing the information that the legislature has deemed important for the public to have in elections. In effect, this is already the third try as the Candidate swapped out the inaccurate and incomplete form presented to the court for a different inaccurate and incomplete form when it finally filed it. As the Candidate clearly and admittedly failed to follow the Court’s order we really need to go no further,” Wolfe wrote in a brief.

Dear said, “I think it’s important for voters to know, the financial disclosure form is pretty important, so voters know who they’re voting for and what their positions are.”

Petrucci agreed the purpose of the documentation is to disclose any financial conflicts of interest that candidates might have. Sautner left part of hers blank and did not check the box to say “none,” he said, “Which is a blatant violation.”

The school board is in charge of “a third of a billion-dollar budget,” Petrucci added.

He quoted the Montgomery County solicitor, who said that statements of financial interest that are not made in bad faith are amendable “but not into perpetuity,” so candidates should not be allowed unlimited “bites at the apple.”

“In my view, this cannot be viewed as simply a clerical error. In Pennsylvania, candidates for public office are required to file these statements to promote transparency and prevent conflicts of interest. They help voters assess any potential biases or conflicts a candidate may have. In her discretion, Judge Carluccio allowed each candidate to amend the statement, which in her estimation was done in a manner which did not cure the defect in the disclosures,” said Petrucci.

Sautner, president and CEO of the nonprofit Eastern Penitentiary Historic Site, asked her new attorney to comment on her behalf.

That lawyer, Timothy Ford, told DV Journal, “We filed an appeal this morning so Kerry can continue her fight for students, teachers, and families in the Lower Merion School District. Kerry believes in the democratic process, and she believes that the residents of Lower Merion and Narberth deserve the opportunity to vote for the candidates of their choice. Kerry is committed to making sure that school district residents have the information they need to decide their votes for Lower Merion School Board. We’re confident that the appellate court will agree that Kerry met the law’s requirements.”