Taxpayers Subsidized Mahoney Acquisition of Cavanagh/Gearing Nominating Petitions, Petitions' Conveyance Begs Investigation

Posted: Sunday, June 7, 2015 by Pezzonovante in Labels: , , ,
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Readers will recall the Right-To-Know law (RTKL) request NES principals made to the Pennsylvania Department of State (PADOS) which showed that State Rep. Timothy S. Mahoney (D-51) was the only person on the planet who obtained both the Gary Gearing and Michael J. Cavanagh nominating petitions that were challenged by Republican-registered co-objectors of record, Robin Lynn (Guerriere) Amend and Thomas R. Murray II.

 See:  RTKL Answer

The attorney of record for Amend and Murray was none other than Ronald J. Brown of Grogan Graffam, P.C.  Attorney Brown's firm, received a $5,000.00 payment from State Rep. Timothy S. Mahoney's 'Friends of Tim Mahoney' campaign committee on February 22, 2012, the very same day that Attorney Ronald J. Brown finalized and signed two petitions to set aside the nominating petitions of State Rep. Timothy S. Mahoney's Republican opposition in the 2012 primary, Gary Gearing and Michael J. Cavanagh.

Brown filed the petition to set aside against Gearing's nominating petitions on February 22, 2012, and he filed the petition to set aside against Cavanagh's nominating petitions on February 23, 2012.

As it happens, the dates of February 16, 2012, through February 23, 2012, have turned out to be very important dates, indeed.  On February 16, 2012, both Gearing and Cavanagh had their nominating petitions, including their Candidate's Affidavits, notarized in the office of then-Fayette County Prothonotary Lance Winterhalter.

Of critical importance, the very next event on the timeline of events (See: http://notenoughsaid.blog.com/2012/03/17/the-rest-of-the-story-part-iii-timeline-of-events/)
was the swearing out of Sworn Verifications on February 20, 2012.  These were sworn out by Amend and Murray to verify the statements made on foregoing Petitions To Set Aside the Nominating Petitions, which were not even finalized by Attorney Brown until February 22, 2012 -- two days later!!  Why did Amend and Murray swear out Sworn Verifications (legally binding documents) verifying the foregoing on Petitions to Set Aside the Nominating Petitions of Cavanagh and Gearing (legal documents) that were not finalized until two days later??  How could statements in Petitions to Set Aside the Nomination Petitions of Cavanagh and Gearing be verified in Sworn Verifications as foregoing statements when at the time Amend and Murray executed the Sworn Verifications (February 20, 2012) the Petitions To Set Aside the Nomination Petitions were yet to be finalized (February 22, 2012), and State Rep. Timothy S. Mahoney (D-51) was yet to acquire the Cavanagh and Gearing petitions (February 21, 2012)?

Moreover, how did the co-objectors of record come to object to the nominating petitions there is no record the co-objectors ever obtained?  The RTKL Answer shows that neither Amend nor Murray were listed as having filled out their own 2012 Nomination Petition Review/Copy Request Form at the Pa. Dept. of State Bureau of Commissions, Elections and Legislation (BCEL).  When the fact that Rep. Mahoney obtained the Gearing and Cavanagh nominating petitions surfaced, local blogger Julie Toye undertook to find whether there was a way around the requirement to fill out the request form.  She contacted Ethan Smith at the House Democratic Campaign Committee (HDCC) to find documentation that attorneys could acquire petitions without going through the requirement to sign the 2012 Nomination Petition Review/Copy Request Form requesting to view the petitions.  However, Ethan Smith broke his promise to get back to Toye, and Smith failed to produce any documentation.  Thus, Toye never turned up any evidence to suggest this was a possibility.  

 See:  http://www.julietoye.com/mahoney4.html. 

 Additionally and crucially, it would not have been the attorney to have first acquired the petitions and then to have sought out as clients co-objectors registered as Republicans to object to and challenge petition signatures and candidate eligibility.  Non-straw co-objectors would be the initial actors; they would have acquired the petitions and, after review, would have raised their concerns to an attorney.  Toye's attempt to verify whether the attorney could have acquired the petitions, while laudable, was backwards, for the RTKL answer from the PADOS which shows only Rep. Mahoney acquired both the Cavanagh and Gearing nominating petitions is evidence that the two co-objectors never themselves -- independent of Mahoney or an attorney -- acquired the Gearing and Cavanagh nominating petitions.  If one is not a straw co-objector put up by another actor to make petition challenges, how can one object -- especially in the case of the Gearing nominating petitions upon which signatures were challenged on a line-by-line basis  -- to what one has not seen?  The Sworn Verifications were signed by Amend and Murray on February 20 2012, -- one day before even Rep. Timothy S. Mahoney acquired both the Gearing and Cavanagh nominating petitions on February 21, 2012 (i.e., the day after Amend and Murray had already sworn out their Sworn Verifications verifying the foregoing on Petitions to Set Aside Nomination Petitions which were not complete, and regarding nominating petitions they had not obtained!).

On February 21, 2012, as the RTKL answer from the PA-DOS demonstrates, Rep. Timothy S. Mahoney obtained the nominating petitions of Gearing and Cavanagh.  As aforementioned, Attorney Brown finalized and signed both set aside petitions on the following day, February 22, 2012.  As Rep. Mahoney was the only person on the planet documented to have acquired both the Cavanagh and Gearing nominating petitions, he had to be the conduit through which Attorney Brown received the petitions.

How were the petitions conveyed?  Rep. Mahoney picked up the petitions (in Harrisburg) on February 21 and Attorney Brown (whose office is in Pittsburgh) finalized and signed both petitions to set aside (and filed one of the two) on February 22 -- the next day!  So Brown had to have received those petitions very quickly. 

What is the fastest way to send documents?  USPS, UPS, and Fed-Ex all have overnight delivery, but what is even faster than overnight delivery?  E-mail or FAX.

In the Information Age, electronic mail, or e-mail, is the fastest way to send information.  Documents must first be scanned into PDF files; however, then, they can be sent at the press of the SEND button faster than any overnight delivery service can deliver documents.  As well, one can FAX documents over telephone lines within minutes.

Here is where our story must momentarily digress.  This writer has established through a RTKL request that State Rep. Timothy S. Mahoney (D-51) was in Harrisburg, Pennsylvania, on February 21, February 22, and February 23 of 2012.  As the following answer to the RTKL shows, Rep. Mahoney received a $163.00 per diem for each of the three days and mileage reimbursements for $108.23 on February 21, 2012, and for $108.22 on February 23, 2012.

See: Three Per Diems Mileage

Although there were no House Session Days on Feb. 21-23, 2012, Rep. Mahoney (who then sat on the PA House Appropriations Committee -- he has since lost that assignment) attended three days of non-sessionary House Appropriations Committee hearings.  Reviewing the transcripts of the 11 hearings held over those three days, one learns that Rep. Timothy S. Mahoney made substantive comments/asked substantive questions in only two of the eleven hearings, with neither of those two hearings taking place on February 21, 2012.

See:  Feb 21 to 23 Committee Transcripts

Specifically, on February 21, 2012, the day he obtained the Cavanagh and Gearing petitions from the PA Dept. of State and was paid mileage, salary and claimed a $163.00 per diem, in the three hearings held that day by the House Appropriations Committee, Rep. Mahoney made only one statement -- noting that he was present. 

See:  Mahoney Notes Presence 20120221

The hearings' transcripts record no other utterance from Rep. Mahoney for the rest of the entire day!  Perhaps Rep. Mahoney had other, far more important things on his mind on February 21, 2012, (far more important things like acquiring the nominating petitions of his Republican opposition and being the conduit to Attorney Brown in Pittsburgh).

Turning now to the question of the conveyance of the Cavanagh and Gearing nominating petitions, if Rep. Mahoney was in Harrisburg for three days of House Appropriations Committee hearings, he certainly did not hand-deliver the petitions to Attorney Brown in Pittsburgh.

The deadline for filing the petitions to set aside with the Commonwealth Court was February 23, 2012.  Overnight delivery was too slow.  Rep. Mahoney was in Harrisburg for hearings (three of which took place on February 21).  The PA-DOS-BCEL offices are in very close proximity to the State Capitol (just off the back steps).  Did Rep. Mahoney acquire and then e-mail or FAX (or have a staffer e-mail or FAX) the petitions to Attorney Brown from his legislative office (or a staffer's office) in the State Capitol?

This writer made a Right-To-Know law (RTKL) request for such records, but the records request was denied.  While e-mail , FAX, and other written communications are open records under the RTKL as it pertains to Commonwealth and Local agencies, because the Legislature specifically carved itself out of the RTKL, such communications are not considered open records as the RTKL pertains to the Legislature.

In other words, the "Open Records" law over which Rep. Timothy S. Mahoney never ceases to take victory laps, does not apply to the Legislature to the same extent it applies to Commonwealth and Local agencies. 

There are only 19 records classified as legislative records under the RTKL. 

See: RTKL 19 Legislative Records 

The Office of Open Records does not handle appeals and disputes, as it does for Commonwealth and Local agencies.  Both RTKL requests for legislative records and RTKL appeals regarding legislative records are handled internally in the House and Senate, respectively. 

Talk about the foxes guarding the legislative henhouse!

Also, a determination is first made by the House open records officer as to whether the requested record is a legislative record.  Only then is the requested record accorded the presumption of openness.  Thus, the presumption of openness for legislative records is contingent upon the determination of the internal House open records officer (i.e., the House Chief Clerk).  Absent the House Chief Clerk agreeing that a requested record is a legislative record, the request is denied.  One may appeal; however, the appeals process is also handled internally, with the open records appeals officer being yet another fox guarding the legislative henhouse.

Denied on appeal, one may appeal to the Pennsylvania Commonwealth Court, part of the same Judiciary also carved out of the RTKL by the Legislature, with financial records being the only type of record pertaining to the Judiciary that is open under the RTKL.

The bottom line:  On February 21, 2012, state taxpayers subsidized State Rep. Timothy S. Mahoney's acquisition of the nominating petitions of his Republican opposition in the 2012 primary -- Gary Gearing and Michael J. Cavanagh -- by paying his daily salary (2012 = $315.48/daily), his mileage ($108.23), and a per diem ($163.00) on a day he attended three House Appropriations Committee non-sessionary hearings in which he asked no substantive questions, in which he made no substantive statements, and in which his sole utterance noted his presence at the outset of the first hearing. 

Taxpayers also may have subsidized the conveyance of those petitions to the attorney who represented the co-objectors of record, Amend and Murray.  Because e-mails and faxes are not defined as legislative records, the weak RTKL precludes viewing the e-mails and faxes, if any, from Rep. Timothy S. Mahoney's Harrisburg legislative office (or a staffer's office) for February 21-23, 2012.  In the interest of openness and transparency, there is nothing in the RTKL which prevents Rep. Timothy S. Mahoney from releasing the e-mails and faxes for himself and all his staffers for those days; however, one would be very naive to expect the voucher-hiding Mahoney to do that, especially if incriminating e-mails or faxes exist.

As the Bonusgate investigation made clear, e-mails and faxes can be subpoenaed in the case of probable cause.  This writer, because of the time constraints on the attorney to file the petitions to set aside with the Commonwealth Court by February 23, 2012, thinks probable cause exists and thinks the Dauphin County Office of the District Attorney should open an investigation.

In that vein, this writer made contact with the Dauphin County Office of the District Attorney.  This writer also found out that Dauphin County has a county investigating grand jury impaneled. 

This is where you come in, gentle readers. 

If you are offended by the fact you subsidized Rep. Timothy S. Mahoney's acquisition of the Gearing and Cavanagh nominating petitions, if you think there is enough probable cause that Rep. Timothy S. Mahoney may have used state resources (i.e., e-mail or FAX) to convey the Cavanagh and Gearing nominating petitions to the attorney in Pittsburgh due to constraints of time, and if you think this probable cause should be investigated, you can let your position be known by e-mailing First District Attorney Fran Chardo fchardo@dauphinc.org, the attorney in charge of the Dauphin County Investigating Grand Jury (see:  http://www.dauphinc.org/grandjury/) and by asking him, respectfully, as this writer did, to open an investigation.

The conveyance of the Gearing and Cavanagh nominating petitions begs investigation by the Office of the Dauphin County District Attorney and by the Dauphin County Investigating Grand Jury.

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