This post is part of a larger series.
Creating strong systems for oversight and rooting out corruption or mismanagement is one critical step towards a more effective and fair government. However, some of the rules we have in place are in desperate need of an update. There is low-hanging fruit to be picked when it comes to creating or updating our ethics policies. Here are my recommendations, in no particular order.
End councilmanic prerogative
Councilmanic prerogative is the practice of City Council wielding near-total control over the use of land. This is especially the case for district councilmembers, and especially for the more than 9,000 publicly owned properties. It has led to clear abuses of power for personal gain, and is redundant with other checks and balances. Therefore, I advocate for abolishing it entirely, while reforming existing review processes to increase the power of public participation.
It is difficult to pin down exactly how councilmanic prerogative is enacted, because it derives from legal and informal authority, and it is often informally enacted. The Pew Research Center’s report linked above provides the best insight I have found. According to Pew, Council derives its prerogative power vaguely from State law and the City Charter. Chapter 16-201 of the Charter requires that the Department of Public Property have “specific authority from the Council” to sell properties, but it doesn’t say in what form. The State’s Urban Redevelopment Law of 1945 (section 9, k) similarly requires that land owned by the Philadelphia Redevelopment Authority cannot be sold without “approval by the local governing body.” This leads to the most tangible authority within councilmanic prerogative—passing an authorizing resolution for sales of city land. An authorizing resolution is like a law, but all it does is explicitly state Council’s authorization.
However, Council also exercises the power of prerogative through zoning, which is where the informal power comes in. The zoning code provides guidelines for what can be built where, and it is meant to control city planning and to protect people from unsafe structures. If a construction project follows the code, it won’t need any extra layers of approval. If a project falls outside of the code, however, then the developer needs to go through the Zoning Board of Adjustment, which formally does not require Council approval, but informally always does. Many of the board members are appointed by Council, or at least have political interests in the City. Alternatively, Council can completely circumvent the zoning process by passing a zoning ordinance (i.e. a law) for that special case, streamlining approval. Finally, Council can pass a zoning overlay (also a law), which prohibits certain types of construction or uses of property in a district or region. This then requires each of those cases to go through the Zoning Board of Adjustments or Council legislation.
The largest power of councilmanic prerogative seems to be informal. For instance, when Council passes zoning legislation, it’s in regards to just one district, and the legislation is raised by that district representative. However, the whole Council almost always votes unanimously in favor of that district member’s legislation. From 2008 to 20014, Pew found that 726 of 730 prerogative bills passed unanimously. This also applies more broadly to all kinds of legislation. There is a general rule of not interfering in each other’s districts, giving district members near-total power within their districts. Additionally, much of Council’s informal power comes from generally accepted practices, such as how agencies that do not require Council’s approval still will not act without it. Many of the board members of the various review committees are also appointed by councilmembers, and when they are not, they still act in accordance with Council’s interests due to political sensitivities. This is the case for the Zoning Board of Adjustment.
There are several agencies responsible for oversight and sale of public properties: the Department of Public Property, the Philadelphia Redevelopment Authority, the Philadelphia Housing Development Corporation, and the Philadelphia Authority for Industrial Development. The Department of Public Property and the Philadelphia Redevelopment Authority collectively manage 90% of the City’s properties, and the law requires that both of these agencies have the approval of Council for any dispositions of land. This comes in the form of passing an authorizing resolution. Even the authorities that do not need any formal approval will not act without the consent of the district councilmember, which often comes through a phone call. More recently, City Council consolidated many of these properties into a new agency called the Land Bank, meant to streamline the process of purchasing City land. It is still a little unclear how the process will work, but the Land Bank’s website notes that all sales require City Council’s approval. Now the Land Bank is mired in controversies of mismanagement, inefficiency, and abuse of councilmanic prerogative.
Councilmanic prerogative has been incredibly controversial. Most recently, the councilmembers from districts two and five, Kenyatta Johnson and Darrell Clarke, came under fire for using councilmanic prerogative to help friends purchase City land at far below market values. These are just two recent cases. The Pew Research Center notes that all six councilmembers who were convicted on corruption charges since 1981 were convicted on cases relating to councilmanic prerogative.
On the other hand, Council and proponents of the practice argue that it is beneficial for the community. As the directly elected representative of a district, that councilperson knows the needs of his or her constituents best, and that person best represents their interests. The councilperson acts as the community’s voice in the development process, preventing gentrification or other unwanted development.
It is entirely possible to secure these benefits without placing so much power in one person, or even in Council at all. There is no reason why we cannot create a system in which the community maintains strong veto power and knowledge of the development process, without placing power directly in City Council. We can amend the current law that establishes the Land Bank so that City Council has no say in the sale or other use of public property by removing the requirement for City Council and Vacant Property Review Committee approval. Instead, we should enhance the public oversight aspects. There are already several provisions requiring opportunities for public comment, publishing notices of land sales, publishing various reports, and creating a website with information about land sales. Let’s change the law so that the community has more time and methods to give input, as well as an effective means of vetoing developments. For instance, we could give residents of a zoning district the power to veto land use or sale through a certain number of signatures relative to the local population. The exact method matters less than the principle of giving the community a voice more directly, rather than having to operate through a single individual who is prone to corruption.
Still, this would not prevent councilmanic prerogative. Although the Land Bank represents progress in streamlining the land purchasing process, developers and the City are not required to use it. Even if we remove Council’s influence from the Land Bank, anybody could simply go through the other City landholding agencies, several of which do require Council approval. These landholding agencies derive their power from City and State law, including their requirement that City Council approve land sales and management. However, City and State law don’t specify how they approve of this. Council could (and should) simply pass legislation granting broad approval to these agencies to manage public land. There is simply no requirement for Council to oversee every single transaction as they do now; this is an example of an informal power granted only through political culture. Therefore, the only way to solve this issue is to create public pressure on Council and to elect members who support this revision.
This also does nothing to prevent zoning prerogative. However, I found something interesting in the Philadelphia Home Rule Charter showing that zoning prerogative is purely an informal power. Paragraph 2-307 of Article 2, Chapter 3 prohibits Council from enacting any bill that affects zoning ordinance, physical development, streets planning, land subdivision, or the sale or acquisition of City real estate “without first receiving the recommendation from the “Mayor of the City Planning Commission.” According to Article 3, the City Planning Commission members are appointed by the Mayor, so this acts as a check on zoning legislation. So, this check on power already exists, it is just not being used. Therefore, yet again, the only way to prevent this form of prerogative is to pressure the City Planning Commission and the mayor to actually use this power.
Finally, this does not prevent the form of councilmanic prerogative resulting from the general, informal rule of non-interference in districts. This power stems from councilmembers agreeing to never dispute a bill introduced by a district member regarding their district. So, this depends upon a shift in attitudes of the sitting Council, and hence, public pressure on Council.
Pass anti-conflict of interest laws
Currently, Philadelphia’s laws to prevent conflicts of interest are weak in some areas. We need to add legislation or amend the Ethics Code in the Home Rule Charter to create explicit prohibitions on conflicts of interest in all of its forms.
The Home Rule Charter’s Ethics Code prohibits councilmembers from having financial interest in City contracts, interfering with officers or other City employees, or influencing the Civil Service hiring process. This code also prevents beneficiaries of City bonds from managing the City’s bonds, prohibits any City officer or employee from accepting bribes, and prohibits discrimination. One particularly impactful clause states that no officer or employee of the City can run for anything but re-election without first resigning. Finally, the City’s ethics laws within the Philadelphia Code build upon these regulations, while adding regulations regarding conflict of interest. It prohibits taking employment related to a person’s position after leaving the City’s employment or representation, requires City officials or employees to disqualify themselves from acting in cases where they have financial interest, and requires City officials and employees who have potential financial conflicts of interest to disclose them publicly and submit annual financial reports to the Board of Ethics in regards to those finances.
These laws prevent many forms of conflict of interest, but they do not prohibit people from holding financial interests or other positions that might come in conflict with their public duties. The laws only require people to remove themselves from such situations and disclose the interests, which appears to be up to that person’s discretion.
Allan Domb, an at-large councilperson, provides the clearest example. He likely owns the most value in real estate in the city, and he’s even been given the nickname the “condo king.” Domb also holds interests in many restaurant businesses, including Steven Starr, and he is involved in dozens of other businesses. He, like many others, claims that his private interests do not influence his job as a legislator. However, it is hard to believe that he was not voting in his best interest when he opposed a real estate transfer tax in 2016 and in 2018, and when he opposed a bill to create a 1% new construction tax last year. Even if his intentions are good, surely these are clear examples of cases that should require recusal from councilperson duties.
Mayor Jim Kenney: In addition to his $213,000 salary, Mayor Kenney took in more than $9,000 in State pension, $1,700 from American Funds, and $3,000 from Raymond James Financial Services. Kenney also received gifts over $200 in value from 18 organizations, including groups like the Philadelphia 76ers, Villanova University, and Made in America.
City Councilperson Alan Domb: As mentioned, Domb owns significant real estate and has dozens of other business interests. He lists 11 creditors, hundreds of properties, and dozens of businesses on his financial disclosure.
City Councilperson Derek Green: Green receives income from Obermayer Rebmann Maxwell & Hippel, LLP. Green also received 24 gifts worth more than $200.
City Councilperson Helen Gym: Gym received 14 gifts worth more than $200.
City Councilperson Bobby Henon: Henon is a salaried employee of the International Brotherhood of Electrical Workers 98, which is related to his recent indictment for corruption charges. He also owns a rental property in Wildwood and received nine gifts worth more than $200.
City Councilperson Kenyatta Johnson: Johnson received five gifts worth more than $200.
City Councilperson Curtis Jones: Jones owns a property in the city and receives income from the State, presumably as pension. He also received five gifts in excess of $200.
City Councilperson David Oh: Oh receives income from Care Partners Plus, LLC and KI Sports Entertainment, LLC. He also received two gifts worth more than $200.
City Councilperson Brian O’Neill: O’Neill receives income from Fox Rothschild, LLP.
City Councilperson Cherelle Parker: Parker receives income from Independence Blue Cross and received one gift, which was tickets from the Mayor’s Office for constituents.
City Councilperson Blondell Reynolds Brown: Reynolds Brown receives income from the Ann Garrot Foundation, Independence Health Group, Brian Foster, and Stephanie Strand. She also received six gifts.
City Councilperson Mark Squilla: Squilla received income from the State, presumably for a pension, and he received one gift. Squilla is also a board member in 11 organizations.
City Councilperson Al Taubenberger: Taubenberger receives income from Penn Liberty Real Estate LLC and received one gift. He is also the Vice Chairman of the Philadelphia Parking Authority and serves on two other boards.
City Commissioner Lisa Deeley: Deeley received income from something called “PSERS” and serves in four organizations as a board member.
City Commissioner Al Schmidt: Schmidt owns one property and has seven other sources of income. It looks as if they are all investments.
Former City Controller Alan Butkovitz: Butkovitz collected income from a State pension, the State House of Representatives, the Bipartisan Management Committee Chief Clerk’s Office, and from several investments. He is also the ward leader for the 54th ward.
City Controller Rebecca Rhynhart: Rhynhart received income from the New World Fund, Blackrock Equity Fund, IBM, and John Hancock Large Cap Fund. She was also a board member for Mural Arts Advocates.
District Attorney Larry Krasner: Krasner had partnership in corporations that own Tiger Building LP and Cushman Building. He also received income from Krasner & Long, LLC, Tides Advocacy, Greenblatt, Pierce, Funt & Flores, LLC, Camac Street Partners, Inc., 239 Camac Street, LP, Little Street of Clubs, Inc. Krasner also received three gifts.
Register of Wills Ronald Donatucci: Donatucci has real estate interests in a congressional office and a ward headquarters. He received income from Nation, LTD, Debra Investments, Ronald, Michael, Ronald, LP, RRM Associates, LLC, and Ronald & Robert Donatucci, LP. He serves as a board member in 13 organizations, as the ward leader for 26th ward.
Sheriff Jewel Williams: Williams has financial interest in three properties, and he owns a company called The New Working Group. He also receives income from the State, probably a pension.
There are also dozens of senior officials and other government employees listed who I have not detailed here. These are just the elected officials, and only for finances in 2017. Clearly, there is a lot of financial interest outside of government service.
Our elected officials and other members of public service should be prohibited from holding financial interests of any kind. It is absurd to claim that these interests do not or at least could not influence decisions made as a public official. Our elected officials and City employees should only work for one interest—Philadelphians.
Prohibit those guilty of crimes from serving
Currently, elected officials and City employees can be convicted of crimes while still holding their position. For instance, City Councilperson Cherelle Parker (then State Representative) was arrested in 2011 for driving drunk the wrong way down a one-way street. Officers noted that she was driving her State-owned vehicle and had no license, proof of insurance, or registration. In 2015, during her candidacy for City Council, she was convicted for this and had to pay a fine of $1,000, spend three days in prison, take a driving course, and revoke her license for one year. Yet, she was still allowed to serve, and she remains in office today. This is not just troubling in principle, but also because councilmembers get tax-funded vehicles (currently a $24,690 Chevy Equinox), gas, repairs, and insurance. The Philadelphia Weekly article from 2018 I just linked notes that Parker used 956 gallons of gas in one year, enough to drive 55 miles a day. She also racked up $3,485 in repair costs after a traffic collision.
An even more ridiculous recent case has come up. Three of the traffic court judges who recently served prison terms for lying to federal prosecutors in their ticket-fixing corruption charges are now trying to run for City Council. One of them was also convicted for accepting a bribe during a sting operation. They are currently circulating petitions to get the needed signatures to show up on the primary ballot this May.
As the article notes, the Pennsylvania Constitution already seems to prohibit this and other potential cases. Article Two, Section Seven states that, “No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth.” Two of the candidates responded to the Inquirer regarding this, saying that they believe it only applies to State officials. It is true that this part of the Constitution is found in the section establishing the State legislature, but it has the clause at the end saying “or capable of holding any office of trust or profit in this Commonwealth.”
Let’s end this ambiguity by amending the Home Rule Charter. Our elected officials and City employees are not above the law. This sends a message that City insiders can operate on different rules, it sets an example of unethical conduct in government, and it prevents our City officials from properly performing their duties. You simply cannot write legislation from jail, and if you are not in jail, but have been convicted of crimes that could relate to your public duties, the public can no longer trust you.
An amendment to the Charter could be worded similarly to the version in the State Constitution. This way, not all cases of conviction prohibit a person from office, but anything potentially relating to their office or employment with the City could fall under the “infamous crime” clause. For instance, if you were convicted of shoplifting as a teenager, and you’re now 50 years old and running for City Council, this would not prohibit you from office. However, if it were a more recent crime, or a more serious one, then it could prohibit you from public service. These former traffic court judges provide the perfect example, and I believe Cherelle Parker does as well. Under a Home Rule Charter amendment like this, it would be clear that none of them could serve in any public capacity.
Prohibit those with ethics violations from serving
If you cheat to win an election, you should not be allowed to carry out that term of office. Yet, many of our elected officials get away with a slap on the wrist for violating campaign laws, such as with fines of $2,000. This is a mockery of our election system.
As I outlined in my last post, these penalties need to be far more severe in order to prevent any incentive from cheating in elections. However, this needs to go even further than monetary or other penalties. We need to amend the Home Rule Charter or pass legislation to prohibit anybody with campaign ethics violations from serving in any public office. This can have varying degrees, such as removing somebody from an election, prohibiting holding office for one year, all the way to a permanent prohibition from office.
This does create a sticky situation for all of the current officeholders who are guilty of ethics violations, or for future officeholders who are only charged and convicted for their ethics violations after taking office. If somebody is found to have violated ethics rules only after taking office, they must be promptly removed from office, and a special election will be held. Also, we can word this rule to only apply to elections after its passage so that we avoid the chaos of having to simultaneously replace so many current officeholders.
Introduce term limits
We need to introduce term limits for all elected offices. Currently, only the mayor has term limits, and this only limits more than two consecutive terms. In theory, somebody could take a break for a term, and then become mayor again. City Council and all other offices have no term limits whatsoever. Here are some current officeholders who have been around for quite a while (see this for full list):
Register of Wills Ronald Donatucci: 1980
City Councilmember Darrell Clarke: 2000
City Councilmember Jannie Blackwell: 1992
City Councilmember Curtis Jones: 2008
City Councilmember Maria Quiñones-Sánchez: 2008
City Councilmember Brian O’Neill: 1980
City Councilmember Bill Greenlee: 2006
City Councilmember Blondell Reynolds Brown: 2000
Allan Domb introduced a resolution to propose a change the Charter requiring a limit of three council terms. However, this has been met with swift and intense opposition from other councilmembers.
We can make several basic changes to vastly improve the ethical conduct of our government. Here are all of my recommendations in short:
- Councilmanic prerogative reform
- Remove the requirements in City law for City Council and Vacant Property Review Committee to approve Land Bank decisions on public property.
- Amend the City’s Land Bank law to enhance the powers of public oversight, comment, and veto for land use and development.
- Pass legislation granting broad powers for public landholding agencies to manage public land, so that Council can step away from micromanagement of public land use and remain within the bounds of State and local law.
- Create a campaign to pressure currently elected officials to give up the cultural of councilmanic prerogative and to utilize their checks and balances granted by law.
- Elect officials—especially councilmembers—who express willingness to step away from councilmanic prerogative and enact the above reforms.
- Conflicts of interest
- Pass legislation or amend the Home Rule Charter to prohibit elected officials or City employees from having outside financial interests. If a person with financial interests is elected or hired, he or she must divest from those interests in a timely manner.
- Pass legislation or amend the Home Rule Charter to prohibit elected officials or City employees from holding any other public position, paid or unpaid.
- Ethics and crimes: Amend the Home Rule Charter to prohibit those guilty of certain crimes or ethics violations from holding office, and place restrictions on holding office for those guilty of lesser crimes or ethics violations.
- Term limits: Amend the Home Rule Charter to require term limits for City Council and all other elected positions. Any amount of limits are better than what we have now, but ideally we would have limits of two terms for each office.
All of these reforms lead back to City Council and other elected officials. As I noted in my last post, amending the Home Rule Charter requires Council’s approval one way or another. Passing or amending laws, of course, relies on City Council’s action. Therefore, the only meaningful way of creating change is to utilize the democratic process. We need to elect councilmembers who support these types of reforms, and we need to put immense public pressure on sitting members to enact these reforms. This is going to take a broader cultural shift of a greater public awareness of and involvement in local politics.