Right-To-Know Law Answer Excerpts: Prison Referendum Group/Fayette County Election Board/Bureau Excerpts

Posted in Election Board of Fayette County, Fayette County Prison Referendum, PA Election Code, Pennsylvania

NES received an answer to a Right-To-Know law request seeking the e-mail exchanges between the Prison Referendum Group and the Fayette County Election Board/Bureau.

The following files contain two pertinent excerpts:

1.  An Outline For Referendum Petition Requirements adopted by the Fayette County Election Bureau on August 27, 2012 – RefPetOutline20120827

2. A Legal Memorandum authored by Fayette County Election Board/Bureau Solicitor Sheryl Heid and the E-mails showing Commissioner Al Ambrosini’s and Commissioner Vincent Zapotosky’s responses to same – Legal Mem and Response

From the two excerpts, it is abundantly clear that a formal rejection of a filed referendum petition must take place within the confines of an advertised, public meeting subject to Sunshine Act provisions.  The public meeting never took place.

Rep. Tim Mahoney’s Chiding Words to PSP Expose His Rank Hypocrisy

Posted in PA Open Records Requests Denials Appeals, Where are the vouchers?

Update to post below:

In a press release http://pahouse.com/Mahoney/PAHouseNews.asp?doc=30290 issued on October 1, 2013, titled “Mahoney vows to fight state police appeal of trooper staffing decision,” Rep. Tim Mahoney makes the following hypocritical remarks:

“I’m very disappointed that the state police powers-that-be took this road,” Mahoney said. “The real threat to public safety is having an inadequate number of troopers, which I believe is the case. They’re wasting tax dollars to go to court, and that’s money that could be put toward hiring more troopers.” [Emphasis added.]

“I remain baffled as to why the state police high command believes public safety is best served by keeping people in the dark as to trooper numbers,” Mahoney said. “They’ve chosen to defy the Office of Open Records and public opinion, and are wasting precious tax dollars in the process. We’ll see them in court.” [Emphasis added.]

Rep. Mahoney’s remarks are hypocritical because he, too, is using taxpayer-funded resources (see post directly below) “to go to court, and that’s money that could be put toward hiring more troopers.” Or, better yet, these are monies that could be refunded to taxpayers. In Rep. Mahoney’s warped mindset, it seems that others who use taxpayer-funded resources waste precious tax dollars; however, when he uses taxpayer-funded resources to further his personal agenda, that’s not hypocritical.

Oh, yes, it is.

Pennsylvania State Police v. Tim Mahoney – PSP Appeals OOR Determination, Part II

Posted in PA Open Records Requests Denials Appeals, Pennsylvania, Where are the vouchers?, worst open records reform in history of PA legislative records limited to 19

Two attorneys have entered their appearance on behalf of State Rep. Timothy S. Mahoney (D-51) in Pennsylvania State Police v. Timothy S. Mahoney, Docket Number 1746 CD 2013.

See:

http://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=1746+CD+2013

The attorneys listed are Tara Lynn Smith and Eric Scott Fillman.  The address for both attorneys is 620 Main Capitol Building, Harrisburg, PA 17120, and a search of the attorneys’ names on the PA General Assembly Legislative Directory search engine confirms that both Eric Fillman and Tara Smith are attorneys for the House Democratic Caucus.  The directory lists Fillman’s position as Leadership Legal Counsel  and Smith’s position as Deputy Chief Counsel, Office of House Chief Counsel.

See:  http://www.legis.state.pa.us/cfdocs/admin/ld/gen_search.cfm?office=All&agency=HSE

Other searches for information on Fillman and Smith turned up the following information:

See:  http://www.legalspan.com/catalog2/faculty.asp?UserID=D2003022858227190101158%20%20%20&OwnerColor=%23003366&recID=20130604-229194-95453

See also:  http://www.linkedin.com/pub/tara-smith/43/9bb/225

Their salaries can be obtained on the PennWatch website.

Employee Salary Report

As of 11/15/2013

House of Representatives
Last Name First Name Position Annual Salary

Wage

Fillman Eric S. Leadership Legal Counsel

$112,658

Employee Salary Report

As of 11/15/2013

House of Representatives
Last Name First Name Position Annual Salary

Wage

Smith Tara L. Deputy Chief Counsel

$76,050

Source:  http://www.pennwatch.pa.gov/employees/Pages/Employee-Salaries.aspx

One wonders whether Rep. Mahoney has lost the number to Grogan Graffam, P.C., the law firm that represented the Friends of Tim Mahoney campaign committee in its voucher-hiding quest!

In short, Rep. Tim Mahoney (D-51) is using taxpayer-funded representation in his legal disagreement with the Pennsylvania State Police (PSP) over its appeal of an Office of Open Records (OOR) Final Determination that it had to provide the number of employees it has at the Uniontown barracks.  The PSP has argued that release of the information is exempt under the Right-To-Know law because it impinges on public safety, and the law allows for an exemption in such cases.

Rep. Mahoney wasn’t kidding when he chided the PSP for appealing the OOR ruling, saying that it would cost taxpayers more money, implying that it was going to cost the public for the PSP to have counsel represent it.

He conveniently left out the fact that it would be he, too, who would resort to using taxpayer-funded resources to represent himself in the case, as well.

If that’s not pot-kettle-black hypocrisy, nothing is!

Pennsylvania State Police v. Tim Mahoney — PSP Appeals OOR Determination

Posted in PA Open Records Request, Pennsylvania, Where are the vouchers?, worst open records reform in history of PA legislative records limited to 19

With apologies to readers, blog.com servers lost this story which was originally Posted 09/28/2013:

Yesterday, the Pennsylvania State Police filed an appeal in the Commonwealth Court of Pennsylvania (See:  1746 CD 2013) of the Final Determination  (See:  OOR Final Determination Mahoney Vs PSP) made by the Pennsylvania Office of Open Records (OOR) in State Rep. Tim Mahoney’s open records request for the number of  state troopers at the Uniontown barracks.

According to the OOR Final Determination, on June 17, 2013, Rep. Tim Mahoney (D-51) filed a request for three records:

  1. The current working trooper complement assigned to the Uniontown barracks of the [PSP];
  2. The number of unfilled/vacant trooper positions in that complement; [and]
  3. The number of troopers in that complement who are eligible for retirement as of June 30, 2013.

On July 24, 2013, the PSP granted access to records for Items 2 and 3 of the request; however, citing the public safety exception in the Right-To-Know law, the PSP denied the request for Item 1 — the current working trooper complement assigned to the Uniontown barracks.

On July 29, 2013, Rep. Tim Mahoney appealed the denial of Item 1 to the OOR.

In its Final Determination of August 28, 2013, in a ruling authored by OOR Assistant Chief Counsel J. Chadwick Schnee, Esq., the OOR held that the PSP failed to meet “its burden of proving that Item 1 of the Request is not subject to public access.”

Citing the personal security exemption in the RTKL, the PSP argued that Section 708(b)(1) of the RTKL exempts from disclosure records that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”  65 P.S. Sect. 67.708(b)(1)(ii).  The OOR’s Final Determination, citing case law, held that belief alone, even if reasonable does not meet the heightened standard of meeting the burden for the exemption, and that “”more than mere conjecture is needed” to establish that this exemption applies.””

The PSP also cited an exemption for public access for “a record maintained by an agency in connection with … law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety … or [a] public protection activity ….” See 65 P.S. Sect. 67.708(b)(2)

However, in its Final Determination, the OOR ruled that the PSP did not meet the second of two elements necessary to claim the exemption: that the release of the record must be “reasonably likely” to threaten public safety.

The PSP disagrees and argued in the materials provided in the course of the Mahoney appeal that “”[t]he public benefits from the uncertainty as to how many law enforcement professionals are operating in their local area” and that individuals monitoring PSP barracks could make estimations as to trooper levels at given times.””

The final outcome will be decided in the Commonwealth Court of Pennsylvania, or if an appeal is made from that ruling, the Pennsylvania Supreme Court will decide.

PA State Rep. Tim Mahoney’s Ignominious Anniversary

Posted in absolute power corrupts absolutely, Commonwealth Court Precedent Advisory Questions Illegal on PA County Ballot, county government, DCED GRANT, dissolution of school boards and administrations, Election Board of Fayette County, election irregularities, EXTRA-LEGAL REFERENDUM PETITIONS, PA Election Code, PA Elections and Fraud, suspicious circumstances

Today, August 9, 2013, is the two-year anniversary of State Rep. Tim Mahoney’s (D-51) filing of his fatally defective Referendum Petitions and altered and falsely sworn Affidavits of Circulator.

See:

Referendum Petitions — Mahoney Referendum Petitions

Affidavits of Circulator – Mahoney Affidavits of Circulator

Though he testified in court on August 22, 2011, that he had over 40 circulators, State Rep. Tim Mahoney, as the sole affiant on the altered and falsely sworn Affidavits of Circulator, signed as the sole circulator of his Referendum Petitions.  While the law allows for someone other than the circulator to sign referendum petitions, the law demands that person be present in order to have knowledge of the signers and the criteria in the oath of the Affidavit of Circulator.

In short, the Pennsylvania Supreme Court has found, if one is not present, one cannot attest to anything in the way of the criteria in the oath.

See In re:  Nomination Petition of Flaherty (PA Supreme Ct. 2001):  http://caselaw.findlaw.com/pa-supreme-court/1456416.html

Section 909 of the Election Code provides in relevant part:

Each sheet shall have appended thereto the affidavit of the circulator of each sheet, setting forth-(a) that he or she is a qualified elector duly registered and enrolled as a member of the designated party of the State ․ (b) his residence ․ (c) that the signers thereto signed with the full knowledge of the contents of the petition;  (d) that their respective residences are correctly stated therein;  (e) that they all reside in the county named in the affidavit;  (f) that each signed on the date set opposite his name;  and (g) that, to the best of the affiant’s knowledge and belief, the signers are qualified electors and duly registered and enrolled members of the designated party of the State.

25 P.S. § 2869.   The language in Section 909, therefore, unambiguously requires that the circulator affirming the petition be aware of five criteria about each individual signer:  (1) the signer signed the petition with full knowledge of its contents;  (2) the signer’s address is correct;  (3) the signer resides in the county in the affidavit;  (4) the signer signed the petition on the date set forth;  and (5) to the best of the circulator’s knowledge and belief, the signer was a qualified elector and a member of the party claimed on the petition.   In order to know this information, it seems clear that the circulator needs to be present when each signer agrees to sign the petition.

It appears, however, that case law has relaxed the standard set forth by Section 909.   In these cases, courts have found that a circulator is able to affirm a petition pursuant to Section 909 where the circulator does not personally obtain the signature or speak with each signer as long as the circulator claims to know the factors outlined in Section 909 or the circulator is in the general vicinity when the signatures are obtained by someone else.   See In re Nomination Petition of Martin, 435 Pa. 446, 257 A.2d 247 (1969) (circulator testified that all signers did not sign in his presence, however, as he claimed that he knew every signer, every signer’s address, and that all signers were registered electors, circulator met statutory criteria);  In re Nomination Petition of Bunk, 120 Pa.Commw. 495, 548 A.2d 1287, 1289 (1988) (candidate had sufficient knowledge to affirm signatures collected by assistants as he was always at most a few houses away from assistants and he reviewed every signature obtained by assistants).   Indeed, in In re Nomination Petition of DeFino, 25 Pa.Commw. 646, 649, 362 A.2d 467, 468 (1976), the Commonwealth Court noted that “although it would be preferable for the individual who has actually circulated the petition to make the required affidavit,” it is not specifically required by Section 909.   Id.

We disagree with this relaxed standard.   Although Section 909 does not explicitly state that the circulator must be present at the time signatures are obtained, the circulator clearly must be present when an elector signs the petition in order to truly be aware of the criteria listed in Section 909.   Accordingly, based on the criteria listed in Section 909, which a circulator must know in order to affirm the petition, we believe that the General Assembly intended that the circulator affirming the petition be present when each elector signs his name to that petition.   From this point hence, therefore, signatures shall be removed from a petition if the circulator who has affirmed the petition was not in the presence of an elector as the elector signed the petition.

However, State Rep. Tim Mahoney could not have been present as required by law, for nobody can be in more than 40 places at once.  As the petitions circulated continuously on a county-wide basis, to be present before each signer, Mahoney would have had to be in multiple places at one time — an impossibility.  Moreover, an answer to a Right-To-Know Law request made by NES demonstrates conclusively that Mahoney was not present in Fayette County, for certain, specific times, during his claimed date range of circulation:

Mahoney – Voucher Report – 6.2011

Mahoney – Voucher Report – 7.2011

Mahoney – Voucher Report – 8.2011

On his altered and falsely sworn Affidavits of Circulator (see link above) that the Fayette County Prothonotary’s Office rubber-stamped in 9 minutes time (See YouTube of “Fayette County Courthouse 20110809″: http://www.youtube.com/watch?v=-udeUF0rUFI&feature=channel&list=UL ), Rep. Mahoney claims a circulation date range of June 1 – August 8, 2011.  As June is the state budget month and as Rep. Tim Mahoney sits on the House Appropriations Committee, Mahoney was in Harrisburg no less than 16 times in the month of June 2011 alone.  There is no way that one is 200 miles away in Harrisburg, Pennsylvania, and present in front of continuously circulating Referendum Petitions at the same time.

The  election irregularities and suspicious circumstances surrounding State Rep. Tim Mahoney’s filing of his fatally defective Referendum Petitions and altered and falsely sworn Affidavits of Circulator cry out for  investigation.

Mahoney vs. Mahoney

Posted in Open Records?

On June 17, 2013, State Rep. Tim Mahoney (D-51) made a Right-to-Know Law (RTKL) request with the Pennsylvania State Police.  Rep. Mahoney says that he is seeking to find out “the trooper complement at the Uniontown barracks, the number of unfilled vacancies and the potential number of retirees as of June 30.”

See:  http://www.pahouse.com/mahoney/PAHouseNews.asp?doc=29801

According to Rep. Tim Mahoney, the Pennsylvania State Police (PSP) cited “public safety” issues as the reason the law enforcement agency denied his verbal request for the same information that he now seeks in his RTKL request.  Rep. Mahoney also said that he seeks the information to be able to ascertain whether the state budget addresses the funding and the staffing levels for the PSP.

There are indications that the pretext Rep. Mahoney provided for seeking the information (like so many other things he avers) is false.  Firstly, top line PSP numbers for troop levels, retirements, vacancies, etc. would provide more than enough information to address state budget funding and staffing decisions.  Secondly, the state budget for Fiscal Year 2013-2014 already has been passed.  Thirdly, the item of a countywide, regional police force that has been supported by Rep. Mahoney in the past has been manipulated onto the county political agenda by the lapdog news media that howls for a new county prison to be built and simultaneously prints letters to the editor from Mahoney supporters who equate his RTKL request with support for a countywide, regionalized police force.

Rep. Mahoney is on record as having supported a regionalized, countywide police force in the past.  In fact, he called for a countywide police force with an initial level of approximately 80.  Police officers are unionized, public employees.  Conservatively, at $100,000.00 per officer for pay, health care, pensions, training, insurance, equipment, etc., a force of 80 would cost $8,000,000.00 annually.  Rep. Mahoney, however, provided no details as to where the funding for such a force would come.

Getting back to Rep. Mahoney’s RTKL request, we find that he assails the 30-day extension by the PSP to reply to his request as “a mere stalling tactic.”  He does so without having waited the 30 days.

But we must ask what is all the Mahoney fuss about?  The Right-To-Know Law (RTKL) that Mahoney voted for and took numerous victory laps over in 2007-2008 includes the very 30-day extension that he now complains about and characterizes as a “stalling tactic.”  In fact, Sen. Dominic Pileggi’s Senate Bill 1 (SB1) which actually became the new RTKL includes a 30-day extension for an agency to comply with a request for records.  Again, what is Rep. Tim Mahoney complaining about?  He voted for the bill to become law.

Additionally, Rep. Mahoney cannot argue that, had his version (HB443) of Open Records been passed into law, the law would have been different and more conducive for citizens to obtain the records they seek.  Mahoney’s bill was in many respects weaker than SB1.  For example, in Pileggi’s SB1 the initial time period for an agency to reply to a request for records is five (5) business days.  In Mahoney’s HB443, the initial time period for an agency to reply to a request for records was ten (10) days.

Moreover, contrary to those (Rep. Mahoney, the Lapdog-Standard, local blogger Julie Toye (Rants & Raves, 14 Jun 13), and Dan Visnauskas) who say that Rep. Mahoney should receive the records he seeks from the Pennsylvania State Police (PSP), SB1 (which became the new RTKL) provides for certain exceptions.

Among those exceptions is the following (in bold):

(b) Exceptions.  Except as provided in subsections (c) and (d), the following are exempt from access by a

requester under this act:

(1) A record the disclosure of which:

(i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or

(ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or

the personal security of an individual.

(2) A record maintained by an agency in connection with the military, homeland security, national defense,

law enforcement or other public safety activity that if disclosed would be reasonably likely to

 

jeopardize or threaten public safety or preparedness or public protection activity or a record that is

designated classified by an appropriate Federal or State military authority.

Could Rep. Mahoney argue that under his version of Open Records this exception did not exist and the PSP records would not be exempt?  Answer:  He could, and he may; however, he’d be lying.

To wit, HB443 PN2800, the final version of Rep. Mahoney’s Open Records legislation in 2007, provided for the following exception in Section 307(6) (see bold):

29 Section 307. Records deemed inaccessible.

30 (a) Personal and institutional security.–Except to the

20070H0443B2800 – 17 -

1 extent disclosure is otherwise required by law or by this

2 section, the following records or parts of records pertaining to

3 personal and institutional security shall be deemed not to be

4 public records and are exempt from the access requirements of

5 this chapter:

20 (6) A record maintained by an agency in connection with

21 homeland security, national defense, the military, law

22 enforcement or another public safety activity based on a

23 finding by the agency head or designated deputy that

24 disclosure would be reasonably likely to jeopardize public

25 safety or preparedness.

So, in the end, we find that State Rep. Tim Mahoney has a problem with the Pennsylvania State Police (PSP) actually citing an exception to the RTKL that not only Sen. Pileggi included in his bill that eventually became the new RTKL, but also a similar exception that Rep. Mahoney included in his own version of “Open Records” that allowed the PSP to determine whether “disclosure would be reasonably likely to jeopardize public safety or preparedness.”

Thus, on or before July 24, if the PSP denies Rep. Mahoney’s RTKL request, RTKL Requester Tim Mahoney has no one else to blame for not receiving the information, except Rep. Tim “Open Records” Mahoney (D-51).

Friends of Tim Mahoney Desperately Hides Vouchers

Posted in Friends of Tim Mahoney campaign expenditures, PA Election Code, PA state corruption, Pennsylvania, power corrupts, Where are the vouchers?

Friends of Tim Mahoney lawyer, Jason R. McClean of Grogan Graffam, P.C., filed a response to Michael J. Cavanagh’s Application for Re-argument en Banc.

See: CAVANAGH – RESPONSE TO APPLICATION

Source:  Michael Cavanagh

Clinging to vouchers — that the Pennsylvania Election Code mandates be made available to any person who makes a written request — with clenched fists that would make a greedy miser blush, the Friends of Tim Mahoney campaign committee has had Grogan Graffam, P.C. oppose Michael J. Cavanagh’s Application for Re-argument en Banc.

If Cavanagh’s application is granted, a full panel of Commonwealth Court judges will hear the re-argument of Cavanagh’s Petition for Review in the Nature of Mandamus which seeks to have Bureau of Commissions, Elections and Legislation Commissioner Jonathan Marks issue a mandatory directive for the Friends of Tim Mahoney campaign committee to deliver vouchers that it has been withholding, in this instance, since Cavanagh’s November 10, 2012, official Voucher Requests.

See also:  Cavanagh Files Application For Re-argument With Commonwealth Court

Cavanagh Files Application For Re-argument With Commonwealth Court

Posted in Friends of Tim Mahoney campaign expenditures, PA Election Code, Pennsylvania, power corrupts, Where are the vouchers?

On Monday, July 15, 2013, Michael J. Cavanagh filed an Application for Re-argument en Banc with the Commonwealth Court of Pennsylvania.

See:  Application for Reargument.

The application requests re-argument of Cavanagh’s Petition for Review in the Nature of Mandamus.  Oral arguments were heard on May 10, 2013, and a decision in the case was rendered by Judge Keith B. Quigley, Senior Judge, on July 1, 2013.

If Cavanagh’s application is successful, a full panel of Commonwealth Court judges will hear the re-argument.

Cavanagh filed his application pursuant to Rule 3723 which permits an application for re-argument when a case is decided by a single judge.

The case stems from an official Voucher Request made by Cavanagh in November 2012.  Cavanagh seeks vouchers which detail the particulars of two expenditures made by State Rep. Tim Mahoney’s (D-51) Friends of Tim Mahoney campaign committee — a $5,000.00 expenditure made on February 22, 2012, and a $2,500.00 made on April 25, 2012.  Both expenditures were payments to Grogan Graffam, P.C. — a Pittsburgh-based professional corporation one of whose partners is Pennsylvania Senate Minority Leader Jay Costa, Jr.

The $5,000 payment was paid on the same day — February 22, 2012 — that Ronald J. Brown, a Grogan Graffam, P.C. attorney, finalized and signed two Petitions to Set Aside the Nomination Petitions of Republicans Gary Gearing and Michael Cavanagh who were the Republican challengers to State Rep. Tim Mahoney (D-51) in the 2012 primary election.

Cavanagh’s candidacy did not survive the challenge; Gearing’s candidacy did.

UPDATE:

See excerpt from NES’s former story — State Rep Jesse White Under PA House Leader’s Scrutiny:

128MD2012CoverPageAttySigPage (excerpted from 128 M.D. 2012, Petition to Set Aside Nomination Petition)

135MD2012CoverPageAttySigPage (excerpted from 135 M.D. 2012, Petition to Set Aside Nomination Petition)

Gearing’s candidacy survived the petition challenge, but Cavanagh’s candidacy did not.  Mahoney defeated Gearing in the 2012 general election.

Established Pennsylvania law (in the form of Commonwealth Court case precedent) disallows across-the-aisle challenges in Pennsylvania primary elections.  (See MS Word document for the Commonwealth Court case excerpt in the PASQUAY decision – Commonwealth Ct Decision PASQUAY.)

RACU Spends $8,250 On Countywide School District Consolidation Public Opinion Survey

Posted in DCED GRANT, PA legislative push for countywide school district consolidation via unprecedented county referendum, PA Open Records Request, Pennsylvania, public schools

As the result of a Right-To-Know Law request made by an NES principal in February and answered only today by Redevelopment Authority for the City of Uniontown (RACU) Executive Director Mark Yauger, NES can report that the RACU spent $8,250.00 on a public opinion survey on countywide school consolidation.

See:  pollingservice

The monies expended emanate from a $20,000.00 public relations grant to the RACU from the Pennsylvania Department of Community and Economic Development (DCED).

In February 2013, NES requested information regarding the expenditures to date from the grant proceeds and received this answer:  RACU RTKL ANSWER 20130208.

See also: http://notenoughsaid.blog.com/2013/02/08/local-media-outlets-swill-taxpayer-funded-pr-monies-from-mahoney-school-study-trough/.

RACU Executive Director Mark Yauger today confirmed that the remainder of the funds from the DCED grant (amounting to approximately $50 -$100) will be returned to the Grantor (i.e., the DCED).

The polling results have been published at State Rep. Tim Mahoney’s (D-51) House website – http://www.pahouse.com/mahoney/.

UPDATE:

RACU DCED Advertising Contract 

RACU DCED Study Contract

Cavanagh v. DOS — The Briefs

Posted in absolute power corrupts absolutely, Commonwealth Court Case, Friends of Tim Mahoney campaign expenditures, PA Election Code

The Cavanagh v. DOS (215 MD 2013 07 01) briefs in chronological order: