Unchartered Territory

City Council makes a power play for the Ethics Board’s turf.

By Aaron Kase
Add Comment Add Comment | Comments: 1 | Posted Apr. 27, 2010

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They were literally sounding the alarms at the Packard Building on Sansom Street during an Ethics Board hearing last week, but nobody panicked. Occupants had been previously warned to disregard any bells, lights or tones; it was just a test. Unfortunately, no one seemed too panicked over the hearing itself, either. City Council’s power play to rewrite the City Charter and elbow in on the Ethics Board’s jurisdiction, it seemed, would go unchallenged.

The Philadelphia City Charter is the foundation of our government. Enacted in 1952, the charter lays out the powers and duties of both elected and appointed officials and lays out the rules and penalties for violations. Without the charter, our public servants would have no idea what they’re supposed to be doing—and they have a hard enough time as it is. Philadelphia relies on its charter to guide its departments and regulatory bodies, and every law-making decision and ethics case. It’s our beacon in the night; our bedrock of stability.

But it may also be unconstitutional.

Concerns over whether Charter Article 10-107, which bans political activity by city employees, violates the First Amendment is at the center of a fierce and ongoing debate between City Council and the Ethics Board. The Board wants to maintain its jurisdiction to interpret the political activity sections of charter, while Council is maneuvering to give itself the power to rewrite the rules.

The charter bans city employees from soliciting or accepting political contributions and taking “any part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.” Police and firefighters specifically are singled out as not allowed to donate to any kind of political cause.

Council is preparing legislation that give it the power to override the charter provisions. There are measures in place to continue regulating political activity to avoid conflicts of interest, especially for city employees in supervisory positions or those who provide services to the public. But the concern is Council’s ability to change the law in the future at its own discretion. In the worst-case scenario, City Hall could be transformed into a giant political-contribution and propaganda machine, more of an extension of the Democratic City Committee than it already is.

“This legislation would allow Council to change the bill at will by ordinance,” said a fuming Ethics Board Executive Director Shane Creamer during last week’s hearing, which nearly devolved into a Wild West legal showdown between Creamer and ubiquitous Councilman-at-Large Bill Green.

The combatants quoted cases and precedent back and forth across the room at each other until the other attendants suggested they not turn the proceedings into a legal debate.

“I think there’s a philosophical difference here,” said Green’s chief of staff, Sophie Bryan, at the hearing.

Penn Law Professor Seth Kreimer testified at a March 15 Council hearing that the charter probably wouldn’t stand up to a challenge in federal court. In fact, it has already been repudiated: In 2003, the U.S. District Court for Eastern Pennsylvania ruled that firefighters could not be banned from making political contributions. Kreimer said that the same would almost certainly hold true for police officers as well, and the way the charter is used to outlaw political expression such as wearing buttons or writing letters in support of a candidate is also unconstitutional.

“The right to participate in public discussion, mobilization, and dialogue are cherished rights of American citizenship; they lie at the heart of the First Amendment,” Kreimer said at the hearing. “And public employees cannot broadly be stripped of that right simply by joining civil service.”

According to the Hatch Act of 1939, and supported by subsequent cases, federal law and precedent does allow the prohibition of public employees from being active in political campaigns in the interest that decisions on employment and application of the law be carried out impartially.

“I would be reluctant to say it’s unconstitutional to exclude employees from active management of political campaigns,” Kreimer testified.

The mayor’s Task Force for Ethics and Campaign Finance Reform’s recommendations addressed the problem, implicating Philadelphia’s Civil Service Regulations, which extend the ban on political activity to include wearing “badges, emblems, signs, posters and the like which are in favor of or against a political party, body or candidate.”

All interested parties agree that restrictions on expression like buttons and letters are too broad and should be loosened. How the city should reach that goal is what’s causing the heated debate.

The Ethics Board says the problem can be resolved through a reinterpretation of charter that would override the Civil Service Regulations. Council’s legislation, however, could allow it to take over forever and in perpetuity the ability to write rules guiding employees’ political activities. Should the bill pass Council—and with 15 sponsors it’s a near certainty—the following question will be put before voters on November ballots:

“Shall The Philadelphia Home Rule Charter be amended to authorize the creation by ordinance of standards of ethical conduct with respect to the political activities of City officers and employees, and to provide penalties for violations?”

What Council’s ballot question doesn’t make clear is that it would also give it the power to eliminate the “resign to run” provision, which forces city employees to quit their jobs before running for public office, except incumbents running for re-election to the same position. Since Philadelphia voters rejected the elimination of the resign-to-run provision in 2007, the ballot question could be in violation of state law banning a repeat attempt at the same charter change within five years.

Council pushed back a hearing to move its ethics bills out of committee from April 28 to May 12 to take into consideration the Ethics Board’s recommendations on campaign-finance loopholes, violation penalties and the timeline for implementing new rules on lobbyist registration. However, Council is unlikely to back off its move to override the charter.

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1. Anonymous said... on Apr 28, 2010 at 12:20AM

“Just because you are called the "Ethics Board" does not make you ethical or correct. Kramer is a blow hard.”

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