- - - COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING - COMMITTEE on LAW AND GOVERNMENT - - - Room 400, City Hall Philadelphia, Pennsylvania Monday, February 28, 2005, 2:25 p.m. - - - 040769 - An Ordinance providing for the submission to the qualified electors of the City of Philadelphia of an amendment to the Philadelphia Home Rule Charter relating to the creation, appointment, powers, duties and funding of an independent Board of Ethics, as approved by Resolution of the City Council; fixing the date of a special election for such purpose; prescribing the form of ballot question to be voted on; and, authorizing the appropriate officers to publish notice and to make arrangements for the special election. 040770 - An Ordinance repealing Chapter 20-600 of The Philadelphia Code, entitled "Standards of Conduct and Ethics," and enacting a new Chapter 20-600 of The Philadelphia Code, entitled "Standards of Conduct and Ethics," providing for the powers and duites of the Board of Ethics and the imposition of civil penalties, and providing for the compensation of the members of the Board of Ethics, all under certain terms and conditions. - - - V A R A L L O Incorporated Litigation Support Services 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 2 040771 - An Ordinance providing for the submission to the qualified electors of the City of Philadelphia of the proposal set forth in a Resolution approved by Council proposing amendment of the Philadelphia Home Rule Charter relating to City leases, contracts, concessions and the provision of financial assistance; fixing the date of a special election for such purpose; prescribing the form of ballot question to be voted on; and authorizing the appropriate officers to publish notice and to make arrangements for the special election. 040772 - An Ordinance amending Title of The 10 Philadelphia Code, entitled "Contracts and Procurement," by adding provisions 11 regulating the process by which the City awards professional services contracts 12 and other non-competitively bid contracts, and prohibiting persons from 13 entering into such contracts or from receiving City financial assistance if 14 they or certain related parties have made certain contributions to elected 15 City officers or candidates for City officers, all under certain terms and 16 conditions. 17 040818 - Resolution proposing an amendment to the Philadelphia Home Rule charter relating to City leases, contracts, concessions and the provision of financial assistance, and providing for the submission of the amendment of the electors of Philadelphia. 3 040819 - Resolution proposing an amendment to the Philadelphia Home Rule Charter relating to the date by which the Mayor must submit to Council his operating budget message, proposed operating budget ordinance, and proposed capital budget and capital program, and the date by which the Planning Commission must prepare and submit to the Mayor its recommended capital budget and capital program, and providing for the submission of the amendment of the electors of Philadelphia. PRESENT: COUNCILMAN DAVID COHEN, Chair COUNCIL PRESIDENT ANNA C. VERNA COUNCILWOMAN JANNIE L. BLACKWELL COUNCILWOMAN BLONDELL REYNOLDS BROWN COUNCILMAN DARRELL L. CLARKE COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN JAMES F. KENNEY COUNCILMAN RICHARD T. MARIANO COUNCILMAN MICHAEL A. NUTTER COUNCILMAN JUAN F. RAMOS 4 Law/Gov't - Bills 771, 772, 818 - 2/28/05 - - - P R O C E E D I N G S - - -
The Committee on Law and Government will now be in session for the purpose of considering testimony on one bill, I understand, although all were advertised. Is that right, Chairman Nutter?
Bill Number... the one that ends on 772. Would the clerk of the committee read the title of that bill. CLERK: Bill Number 040772, an Ordinance amending Title 17 of The Philadelphia Code, entitled "Contracts and Procurement," by adding provisions regulating the process by which the City awards professional services contracts and other non-competitively bid contracts, and prohibiting persons from entering into such contracts or from receiving City financial assistance if they or certain related parties 5 Law/Gov't - Bills 771, 772, 818 - 2/28/05 have made certain contributions to elected City officers or candidates for City officers, all under certain terms and conditions.
Mr. Chairman, just for the record, that particular bill has two other companion pieces of legislation that are required. One is the actual amendment to the Home Rule Charter, and the other is the ordinance requiring the ballot question. So, I would only ask --
Thank you, Mr. Chairman. CLERK: Bill Number 040771, An 6 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Ordinance providing for the submission to the qualified electors of the City of Philadelphia of the proposal set forth in a Resolution approved by Council proposing amendment of the Philadelphia Home Rule Charter relating to City leases, contracts, concessions and the provision of financial assistance; fixing the date of a special election for such purpose; prescribing the form of ballot question to be voted on; and authorizing the appropriate officers to publish notice and to make arrangements for the special election.
Yes, first one on the second page. CLERK: Bill Number 040818. Resolution proposing an amendment to the Philadelphia Home Rule charter relating to City leases, contracts, concessions and the provision of financial assistance, and providing for the submission of the amendment of the electors of Philadelphia.
And that would be the package that would be necessary? 7 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Yes, Mr. Chairman. And those at the moment, and for this hearing, at least, those are the only measures that I expect to propose amendments with regard to those, any one of those three bills or the resolution.
Do you need those three bills to put 727 on the Home Rule Charter?
And those are the measures that we're looking at at the moment.
All right. Councilman Nutter, could you tell the committee why you choose the Home Rule Charter amendment process rather than the more laid back bill and ordinance method? Why is it necessary to consider the subject matter in the form of a Home Rule Charter amendment? 8 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Sure. I appreciate that, Mr. Chairman, although for some matters I don't know that anyone would consider our ordinance process to be a laid back -- laid back method, but I understand your -- I understand your question. The heart of this matter really goes, Mr. Chairman, to, if you go to bill -- I'm sorry. If you go to Resolution Number 040818 and take in the context of what Bill 12 Number 040772 seeks to accomplish, we know from the Home Rule Charter, for instance, that in Section 8-200 contracts, the only contracts that require competitive bidding under the Home Rule Charter are those that involve the purchase of services or other contracts that are not professional services. And so presently there is no 20 authority for this Council, under the Home Rule Charter, to establish a process to govern how professional services or also known as no bid contracts are awarded or the process is conducted because the Council doesn't have the authority under the Home 9 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Rule Charter. Therefore, one of the amendments that's involved in Resolution 040818 gives the Council by ordinance the authority, as the legislature says, to regulate the process by which purchases and contracts not subject to the lowest responsible bidder requirement of this paragraph are awarded.
Oh, so this would establish power in the City Council to set these procedures.
Otherwise, it might be ruled by the City Solicitor or by the Law Department generally that Council lacks the authorization to do so.
I think it's extremely likely that the Law Department would make that ruling.
All right. 10 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Well, with regard to the concessions, the issue is the same. Council has no jurisdiction with regard to concession agreements presently under the Charter because that is not a contract that involves the expenditure of funds, but it's a contract that involves the city receiving funds. And so, in Section 8-201, concessions, under the Home Rule Charter, we would be giving the Council the authority to approve concession contracts that are of the term of one year or more or the contracts -- or the concessions, rather, awarded by the Department of Commerce under Section 4-500-B or C of the Home Rule Charter. Again, that is a part of the reason why we have to seek the Charter change route 11 Law/Gov't - Bills 771, 772, 818 - 2/28/05 requiring --
Would the airport concessions fall under this provision?
And without such a change in the Home Rule Charter, then the Mayor would have strong ground for asserting that only the administration could adopt rules regarding concessions.
Yes. And the last issue goes to the one year or more contracts. We... Again, the Charter requires Council approval of contracts that are of a term of more than one year. We are quite aware, though, that in some instances, contracts are signed for one year, with clauses that allow for multiple year renewals, and in essence, for all intents and purposes, seem to act like a multi-year contract. Part of Resolution 040818 establishes a series of provisions that 12 Law/Gov't - Bills 771, 772, 818 - 2/28/05 relate to one-year contracts that have multiple renewals. And while Council will not -- would not have to approve all of those contracts, it lays out the guidelines for the ones that we would have to approve, as well as establishes reporting and advertising requirements for those that are multi-year in nature, again, a requirement to change the Charter to allow Council to have authority in this particular area.
Could you also state the time elements that apply to the Home Rule Charter, to consider an amendment that would be for when do you have in mind?
The proposed time frame would be that there would be a question on the ballot at the upcoming election, which is May 17, 2005. There are certain... under, I believe, state statute, certain advertising requirements that you must meet certain time frames. And as we have best been able to determine, in order for a question to be on 13 Law/Gov't - Bills 771, 772, 818 - 2/28/05 the ballot, an ordinance would have to be approved or made law no later than March 31, 2005. That's either by a vote of the Council and subsequent signing of any measure by the Mayor or any other procedure that is available to us through the Home Rule Charter. But in any event, final action and approval would have to be taken no later than March 31, 2005.
Why would that be in connection with the May 17th primary?
It's my understanding, I believe, that there's about a 45-day...
Would March 30th allow time in the likely or unlikely event of 14 Law/Gov't - Bills 771, 772, 818 - 2/28/05 a Mayoral veto, for the Council to overcome such a veto, if Council so desired?
Well, in that particular -- In order to prepare for that kind of scenario, Mr. Chairman, what you would need to do is to add or back that process up of two weeks, at least, from the time that's required for final passage. So, for instance, while March 31st is the date by which any final action would need to be taken, if there was a possibility of a veto, the bills would need to be passed by March 17, 2005. The measures, if they were vetoed, would then come back to us on March 31st coincident -- by coincidence, and we would then need to take action on that particular date. So, as you start to look at the calendar and take into consideration our timetable, if we were going to pass a bill by March 17th, we would need to take action on it either that date or on March 10th, which then incorporates the minimum 10-day 15 Law/Gov't - Bills 771, 772, 818 - 2/28/05 requirement for the Mayor to take action. Additionally, Councilman -- Mr. Chairman, rather -- if you look at the March 10th date, that would still provide... if there were amendments from the floor on that date, you could still take action on March 17th. If we end up in a situation where we're seeking final passage solely on the 17th, then there is -- there is no time, then, to accommodate potential amendments because as you well know, amendments have to sit over for a week.
So we're still within the time range for Home Rule Charter. But you're saying that if by March 24th... if an amendment were offered on March 24th, say...
Well, the problem there is that we don't have a session on March 24th.
There's no 25 advertised session that date because of the 16 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Holy Thursday holiday. And I believe, at least during my time, Council has never had a session on Holy Thursday. And I don't think there's going to be one this year either. So, there is a loss of a week. But even at that point Mr. Chairman, the problem -- even if, in a hypothetical discussion, even if we were meeting on the 24th, I --
Well, they say Wednesday, the 23rd. The Council President has the authority to call a meeting upon two days' notice.
That is true. The problem with that scenario, Mr. Chairman, is, even if the Council took action on Wednesday, March 23rd, the Mayor -- and if the Mayor were to exercise a veto, the bill 20 would not come back to us until the following Thursday, which is probably about April 6th or so, in which case you would not meet the advertising requirement in order to have... It's April 7th, which is the next Thursday. You would not be able to have a ballot 17 Law/Gov't - Bills 771, 772, 818 - 2/28/05 question on May 17th.
I'm raising the question because the Mayor's Office says that it is working on a series of amendments to this bill, that it has no objection to the main purpose of the bill, but it thinks there's certain ways the bill can be improved. And that they believe that agreement could be arrived at with Council if they could have another week, March 9th or maybe a few days before. And I'm wondering, could that be accommodated or is that still on the basis of lack of time? What is the most time, if Council were of a mind to permit a few more days for study? And I don't need an answer now but I'd like you to give me an answer later on. I've arranged for three possible dates, today, tomorrow and March the 7th. They are three dates in which the Law and Government Committee has hearings scheduled.
But if during the 18 Law/Gov't - Bills 771, 772, 818 - 2/28/05 hearing you could work that out, I'd be appreciative to know whether it's possible.
The concern would be, Mr. Chairman, if we went to March 9th, we would get a first reading on the 10th.
My concern there is if, and who knows, you know, what would happen between now and then. But if there were a situation where some other amendment were to come -- And it's certainly impossible 19 Law/Gov't - Bills 771, 772, 818 - 2/28/05 for me to either predict what that might be or seek to restrain amendments from the floor. If an amendment were made at that point on the 17th, the bill then could not be voted on until the 31st.
Unless another meeting were set up by the President for, say, March 23rd.
Well, that's true. But, again, that takes us back to the other scenario which is, if there were a Mayoral veto, you would not get the veto back until April 7th. If an amendment were made on the 17th --
Why would it be different if the meeting were on Wednesday, the 23rd instead of Thursday, March 24th? Why does that change the scenario? 20 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Because we don't meet again -- It's the same scenario. If an amendment were made on the 17th, which actually... I don't know... This is probably a legal issue. I don't know that...
Well, if we meet on the day of final passage, if instead of final passage there were an amendment.
There were an amendment. And if the President scheduled a session on the 23rd...
...actually, I'm not even sure that we could consider it that day because of the seven-day requirement. But putting that aside, at that point if we were to vote it on the 23rd, if there were a veto scenario, the bill would not come back to us until April 7th.
All right. If 21 Law/Gov't - Bills 771, 772, 818 - 2/28/05 there are any Mayoral representatives here, be mindful that if such a request is made, before it could be considered you'd have to show that Council would have the same rights as if action were taken under the current timetable available.
I understand that you prefer to have Mr. McElhatten as the first witness?
That's certainly fine with me. I didn't -- I didn't know Mr. McElhatten was coming until you told me, but that's fine. But whatever witnesses, we have they should come.
Mr. McElhatten, are you the chairman? No, it's really Councilman McElhatten because once you have this title you never lose it. Councilman McElhatten was a very respected member of the 22 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Council.
Councilman Clarke, before Mr. McElhatten makes his statement, you had your hand raised?
Mr. Chairman, there were several questions that I had, and I think those questions will probably be of the bill sponsoring --
The weather's bad, and we're required to be here by virtue of our employment obligations. Mr. McElhatten is our guest, so I didn't want to precede him. But I just wanted to know at the appropriate time, there are a number of questions I'd be interested in. And he's 23 Law/Gov't - Bills 771, 772, 818 - 2/28/05 also a constituent of mine.
This matter is of importance, and I think it very urgent that everybody have a chance to know every facet of the bill because whatever leaves here, if it's passed, is going to influence perhaps the way that we do business for the rest of our lives. Now, in my case it may not be too many years. But in your case Darrell, it may be a long time.
Go ahead. It's certainly relevant. Do you want to hold your question till later?
I just wanted to let you know, since I'm not a member of the committee --
Because Mr. McElhatten, I asked him how long he would be. He says, it might be as short as two hours. MR McELHATTEN: No, Councilman. I said it wouldn't be any greater than two years. 24 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Okay. You'll be held at least to the two-hour limit. It's good to see you back here in Chambers, and we welcome you. MR. McELHATTEN: Mr. Chairman, thank you.
Please identify yourself by name and by position held. MR. McELHATTEN: Good afternoon, Mr. Chairman. My name is Daniel McElhatten, and I appear here today as the vice chair of the City's Board of Ethics. Mr. Chairman, members of the committee on Law and Government, Council members-at-large, and District Councilman Clarke, my Councilman, I appreciate the opportunity to be here today. And I know that the committee has, by public notice, had a number of bills before it. And it's my understanding that certain of the bills will only be called for a vote. However, the Board of Ethics met 25 Law/Gov't - Bills 771, 772, 818 - 2/28/05 this morning. I appear today at their behalf and on my own behalf. I appeared before this committee in the fall of this year. At that time I prepared a statement which was incorporated into the record. And at that time we were requesting that the Council act on one of a series of bills. And some of the bills were, in fact, a bill by Councilman Nutter and a bill by the administration, with regard to the creation and the implementation of certain rights and responsibilities of a board of ethics. I think that Council knows that the City of Philadelphia is one of the few cities and one of the only major cities in the United States that does not have a separately functioning independent board of ethics. And our recommendation in the fall was that the Council use its power to incorporate whatever the Council felt was appropriate, using as a guideline that which appears in other jurisdictions. Among the things that we felt were appropriate were investigatory power, Law/Gov't - Bills 771, 772, 818 - 2/28/05 independence from an appointing authority or appointing authorities, and the type of resources that are needed to enforce and educate on the area of ethics. My final comment to the Committee of Law and Government in the fall was that everyone must recognize that we cannot establish in 30 days or even 6 months what has taken years to formulate in other cities. Philadelphia cannot wait to begin this process. Rest assured, however, that the Board of Ethics expects that there will be a collaborative effort among Council, the administration and the board that will result in an entity of which we can all be proud. And our employees in our city deserve nothing less. It is my understanding, from the actions of the board -- of the committee and the other media reports, that actually no 23 board of ethics legislation will be voted on by Council. If that's the case, as a member of 27 Law/Gov't - Bills 771, 772, 818 - 2/28/05 the Board of Ethics and as a member of the 21st Century Review Forum, I am very disappointed, not because of any particular aspect of the legislation, whether it was nepotism or whether it was employment, outside employment. Those are issues, I think, could be dealt with either by amendment... But the heart and the soul of an independent board of ethics needs the resources, both investigatory, educational and independence and the appearance of independence. If the Council chooses not to go forward with a board of ethics, then the board that is constituted by executive order has taken and is sworn to uphold the obligations that are set forth in that executive order. We took an oath that we would well and duly administer the executive order and the ethics laws of the City of Philadelphia in whatever way we could. We hoped, and I still hope, that 28 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Council will, by way legislation that it is ultimately approved by the Mayor, establish another board, an independent board, superseding what we've done, and maybe building on what we've done, but at least give us the same kinds -- us as a city now, generically -- the kinds of resources that other cities have to do these jobs. If it doesn't, that's a legislative decision that Council makes. But then it's -- then the responsibility is thrust back to the existing board.
And if we have to jury rig some apparatus by using the Inspector General's Office, the inherent powers of the executive branch, and other powers that are inherent in the Charter, to fulfill those obligations and working with the state ethics board, then that's what we see as our responsibility. It's a challenge to all of us to be able to do with the resources that are currently available what other cities have done with significantly greater, not financial resources, but in terms of the 29 Law/Gov't - Bills 771, 772, 818 - 2/28/05 structural resources. And that's what I come before this Council for today. The specific legislation that may be voted on is a policy decision. That's a policy issue. Whether the right of Council to review contracts should rest with Council or with the Mayor, Board of Ethics takes no 10 position on that. That's why you're elected officials. But part of our obligation is that at every opportunity where the ethics legislation is on the agenda, is to come before you and to implore you -- yes, to implore you -- that we need to have as a city the resources that are necessary to have a first class board of ethics. Under the current structure we cannot because the enforcement powers that we would have would not be sufficient to have us be comparable to any other major jurisdiction. So Mr. Chairman, members of the Law and Government Committee, and members of 30 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Council, I would implore you, whether it's the deadline of April 1st as the drop-dead date for reporting out of committee or whatever that deadline might be, I would seriously ask you to reconsider and look at the ethics bills and look at the impact the lack of action will have on the reputation of the City of Philadelphia. Thank you, Mr. Chairman.
Thank you, Mr. McElhatten. Any questions from any members of the board, from the Council committee? (No response.)
Thank you. MR. McELHATTEN: Thank you, Mr. Chairman. CLERK: Raymond Wood.
Mr. Wood and his wife was present, we were informed by a phone call at the last hearing, but the Chair 31 Law/Gov't - Bills 771, 772, 818 - 2/28/05 inadvertently was not informed and didn't call them. And so, we've made arrangements for them to be here today. We've had a number of phone calls. But is Mr. or Mrs. Wood? Because we made arrangements for them both to testify. (No response.)
Well, let's wait until later on. Neither are here. Maybe it's the weather. Is there anybody else? CLERK: I have none on my list, no. 15
Are there any other witnesses to be heard? Any Council members who wish to be heard? Councilman Kenney.
Mr. Chairman, I'm sorry I was late. Is there a schedule for today? Do we have a timetable of what we're doing?
Well, we finished the scheduled witnesses. 32 Law/Gov't - Bills 771, 772, 818 - 2/28/05
You can stay in your present seat. Would you rather be targeted? This will be our chance.
The question I have is, I'm just trying to figure out from a scheduling standpoint for my own schedule, whether we'll be voting today.
I don't know. We've been asked by the Mayor for an extension of approximately a week.
He said -- He said -- Is there anybody here authorized to speak for the Mayor?
Mr. Grace, would you take the witness stand for a minute. 33 Law/Gov't - Bills 771, 772, 818 - 2/28/05
And tell us what the request is. And the reason for it, as far as you're authorized to say so.
Certainly. Thank you, Councilman. Thank you Mr. Chair, and members of the committee. I spoke to the Chair of the committee earlier today, and I also spoke to the sponsor of the bills that are before the committee today. The administration is working on an amendment to Bill 040772 that deals with some of the contract issues, some of the substantive provisions of the contract part of the bill, the process by which contracts will be awarded, determined, meted out, advertised and awarded in the city, under this new process. The administration is supportive of the idea of more disclosure and more transparency in the contracting process. But it has a number of concerns with the actual 34 Law/Gov't - Bills 771, 772, 818 - 2/28/05 substantive provisions with how contracts will be determined and awarded and distributed in the city. The amendment is not yet prepared to be offered today, as I told the chairman of the committee a short time ago. It will be shortly. And as we talk through the time schedule, the time clock, for when this bill, if it was going to go on the spring ballot, would need to go through Council, it's the time process -- some of the time process that I heard earlier in this discussion. But it's our understanding that if the Law and Government Committee dealt with the bill and any amendments to the bill, and concluded that process by March 9th, that there still would be time to move it through for first reading, second reading, final passage, and any final determination of the bill by March 31st, which would still be time to put such a bill on the spring ballot. So, that was the basis of my request when I came to you a little earlier today to 35 Law/Gov't - Bills 771, 772, 818 - 2/28/05 talk to you about this amendment and whether or not there would be a way to have a little more time to make this bill the best bill 5 possible. We've come a long way and done a lot of work with members of Council, with bills that have been transmitted up. On this bill in particular, we think we could reach agreement with Council to make the bill a little less burdensome in how contracts are awarded in the city and make it a better bill.
You say you can reach agreement with Council. Do you mean this committee or do you mean the full Council?
Ultimately we would hope it would be a bill that would have a majority 36 Law/Gov't - Bills 771, 772, 818 - 2/28/05 consensus of the full Council.
Is there any preference whatsoever, any need for a preference of amending the bill in committee rather than in full Council?
I guess just... The notion was to try to reach agreement with this committee, with the members of this committee before the bill moved.
This committee is just a number of seven people. Council is one of 17. We've had a hard time getting anything out of this committee related to this legislation. If you believe that the full Council is going to be very agreeable to your amendments, there's no reason why we couldn't amend it on the floor. Do you agree with that?
Councilman, I'm not 37 Law/Gov't - Bills 771, 772, 818 - 2/28/05 certain to the time process on how that would work, if the bill was amended on the floor.
It would be the same time process. If the bill were reported out of committee today, with a suspension of the rules, essentially that bill could be on second reading and final passage on the 10th. The bill could be amended on the floor on the 10th. It could then be passed on the 17th which gives it two weeks for the Mayor's potential veto; and we reached the March 31st deadline that Councilman Nutter talked about. It works either way. So, I was asking whether the administration has a preference or there's any purpose for having a preference or we're amending it in committee, as opposed to amending it on the floor.
Councilman, I don't know that we have a preference. Certainly my goal today in talking to the Chairman of the committee and the sponsor of the bill was just to see if there's a way to work together 38 Law/Gov't - Bills 771, 772, 818 - 2/28/05 to amend the bill, to seek consensus on the Council, to get the best bill possible.
But either route gets us to where we need to be on March 31st, you would agree.
Yes. I'm sorry, Councilman. Councilman, if that gets us there and gets it done in time, then certainly I think that would still be our goal. I'm not a master of that level of the process. I listened to you carefully in terms of whether we amend it on the floor if we'd still get there in time.
Essentially it is very clear that we report out of committee today with suspension of the rules. We have a first reading on the 3rd. 39 Law/Gov't - Bills 771, 772, 818 - 2/28/05 We have second reading and final passage on the 10th. We amend it on the 10th. We then have a final passage as amended on the 17th. The Mayor then has two weeks to take action, 31st.
Assuming that you're correct in that -- And I trust your process, Councilman.
Assuming that you're correct in that, our goal is to amend this bill in the best way possible, to reach the best reform that we can, in terms of how contracts are awarded.
On this issue of whether or not a bill to reform the contracting process goes on a spring ballot, we certainly did not come to the Chairman of the committee today seeking delay. That wasn't -- That wasn't the purpose.
The issue is whether you committed to the March 31 40 Law/Gov't - Bills 771, 772, 818 - 2/28/05 deadline, as outlined by the bill's sponsor, in order to meet the May 17th ballot.
Councilman, I don't want to say ultimately how the Mayor would make a decision on the bill. Obviously, that's ultimately a decision that's up to the Mayor.
No. Actually, we're assuming that there's agreement between the Mayor --
You're also assuming there was going to be agreement between the Mayor and Council. That was one of the assumptions of asking us to hold it up today, because you were assuming that there was going to be agreement.
We have been working on that process for many months now with members of Council, and that's still our goal and agenda.
Because if there's any extension -- If there's any reason to believe there's not going to be an 41 Law/Gov't - Bills 771, 772, 818 - 2/28/05 agreement between the Mayor and Council on this bill, it would make more sense to try to amend on the floor so that we can meet the March 31th deadline in any case.
In other words, it would move out of committee. It would still on a track to meet the March 31st deadline. It could be amended on the floor on March 10th. And if you did not reach agreement with the full Council, the amendments would just go down or the bill 15 could move forward.
I have great difficulty understanding how Councilman Goode could possibly come to the conclusion that it's easier to amend on the floor in Council than it is to amend on the floor of the committee. I have to assume he's desirous of 42 Law/Gov't - Bills 771, 772, 818 - 2/28/05 avoiding discussion because discussion at a Council meeting is bound to be much shorter in its breakdown and analysis of any amendment.
I would just say that that thought process is the same reason for why many members want to discharge this legislation from the committee. It's consistent with that thought process.
Well, when did Council discharge or take an action to discharge this committee from consideration?
It is a matter of formal record that it was discussed on the floor. Councilman Nutter, at some point I believe in December, said he actually had an agreement among a majority of the members of Council to discharge legislation from this committee. It was not moved out the following week. It was not moved out the following week. It was my hope that Councilman Nutter move forward with discharging from the bills 43 Law/Gov't - Bills 771, 772, 818 - 2/28/05 from the committee. It did not happen. But I'm just saying, if we are in belief that which we're both trying to meet a March 31st deadline, we are not yet in agreement to amendments that we have not seen nor do we know the context of, then we can do something by March 31st to move forward. And if Mr. Grace, who's representing the administration, is so sure that we're going to come to agreement on something, then it doesn't make a difference which route we go.
You had -- From the last hearing to this time, several months, you had plenty of time to seek to discharge this committee from consideration. You didn't move because you only had two votes for it.
And you needed seven votes. That's why no discharge took place.
Mr. Chairman, I'm 44 Law/Gov't - Bills 771, 772, 818 - 2/28/05 pleased to vote today.
And the effort to discharge is aimed at getting Council a vote at a time before Council members are fully acquainted with the subject.
That is our decision, whether we are fully acquainted with the subject or not.
Councilman Nutter indicated that when he talked about the bill 12 management. Bill management means getting a Council committee to do it, and then talk to other Council members who haven't studied an issue and tell them they're off the hot seat; all they have to do now is to approve what a Council committee considered. And I presented that on behalf of every member of Council who cares about being a Councilman and serving the public.
because an issue like this ought to be thoroughly debated and discussed. And it ought not to be... I'm 45 Law/Gov't - Bills 771, 772, 818 - 2/28/05 not recognizing you. I will when I finish.
-- your annoying tactics of trying to interfere and stop me.
And the subject as important as this subject, it's very important that Council members know about the subject, that they know it, all the details; they know, for example, here there's so many questions. Why is every department given the separate right to regulate the form that's going to be used? So that each contractor or each contributor is going to have to continually follow new forms every time he wants to make a contribution. Now, don't we need explanation? I don't want to be met a year from now with questions from Council members: How come 46 Law/Gov't - Bills 771, 772, 818 - 2/28/05 this is required? Why wasn't it discussed? On something as important as this issue. It's very important not that we move quickly but we move correctly, and we protect people's rights. And don't try to deny them by fooling them into saying, oh, it's already been discussed by Council committee. And that's the reason why we have committee hearings. And it's the responsibility of the Chairman. Perhaps you don't accept your responsibility in that regard, Councilman. But I think most Council members do accept their responsibility as Chairman. And I think you have in the legislation you sponsored: You've accepted your responsibility to make sure that the issues are clear to all the Council members before you ask them for a vote. And that's what my responsibility is here. Councilman Goode, go ahead.
Thank you, Mr. Chairman. I'm a little bit confused by your 47 Law/Gov't - Bills 771, 772, 818 - 2/28/05 comments of whether you think that this matter should be dealt with in committee or by the full Council.
What I want to do is to have the committee do its job. The committee's job is to examine important bills and give help to Council members to understand what the issues are. Now, I agree that most of the bills that come before Council are routine. And something called bill management may be appropriate to them, but --
-- when a bill 17 comes of this significance, it's important to give everybody a full opportunity to understand every facet.
Mr. Chairman, my was whether you actually believe this bill 22 should be dealt with first in committee or by the full Council.
Well, when the committee has fully apprised its membership 48 Law/Gov't - Bills 771, 772, 818 - 2/28/05 and given those Council members who wish to attend, even if they're not on the committee, a full opportunity to benefit from the hearings. And at that point, I believe committee action is always better if it could be taken first.
So, if a majority of the committee wants to move forward today, we disallow that.
No, it doesn't mean it has to move forward. Why does it have to move forward today?
Mr. Chairman, I asked a question. I said, if the majority of the members of this committee are ready to move forward today, are you going to disallow that action?
The Chairman has an individual responsibility to determine 49 Law/Gov't - Bills 771, 772, 818 - 2/28/05 whether a matter before the committee is of such importance --
What was the question? Well, you can't get a short answer to some questions, Councilman Goode.
You can answer as long as you want but answer the question.
The question is, if a majority of the members of this committee want to move forward today, are you going to allow it?
Mr. Chairman, 50 Law/Gov't - Bills 771, 772, 818 - 2/28/05 with all due respect to you -- And really, I'm not directing this to you. I just want to express my frustration with what seems to be a last-minute attempt to do what is happening to this committee right now. The Mayor, for whatever reason, sent Mr. Grace to make a request for delay, even after months of discussion, months of us talking together privately in trying to come up to a consensus amongst ourselves. The Mayor is no longer a member of this body. Mr. Grace comes today and asks for a delay. You and Councilman Goode are at each other unfairly. I don't think it's appropriate. I don't think it's necessary for you to be at each other. I mean, Mr. Nutter, Councilman Nutter worked on this bill for a long, long time; has done a lot of due diligence. And I think in a very disrespectful way, no 23 disrespect to you because you're the messenger. Now at the last minute, at the very last minute -- This hearing was 51 Law/Gov't - Bills 771, 772, 818 - 2/28/05 scheduled. People knew when it was going to be. Do we have to do it today? Do you have to make the request today? And the other question I have is, what are the amendments about? Do you know? I mean, specifically, what are you changing?
We allow ourselves to do this to ourselves every time. We allow this to happen to ourselves, and it's really very frustrating.
Councilman. Here we go. First I just want to say -- and again, with respect to the Councilman, just as he said it to me -- there was no attempt today to delay at all. Our goal, is as we have been working for a year to come up with the best ethics reforms possible. I think we have been consistent.
Who have you been speaking with? I mean, take me out of the equation because I don't talk to you guys 52 Law/Gov't - Bills 771, 772, 818 - 2/28/05 anyway. So, who have you been talking to in Council or working with? I'm just curious. The Chairman says it's not him. Council President says it's not her because she just said to me, I don't know who they were talking to because they weren't talking to me. So, who exactly are you guys talking to?
When it comes to the ethics legislation itself, we have certainly talked to many members of Council. We have interacted with the Board of Ethics. We've interacted with outside advocates --
Have you talked to the board of Law and Government -- the Committee on Law and Government?
We've certainly had -- We've had ongoing conversations on different matters concerning ethics with the Chairman of the committee.
Well, I'll tell you, the Council President just asked before she left, the Chairman whether or not he's had any discussions about this particular 53 Law/Gov't - Bills 771, 772, 818 - 2/28/05 issue. And he said, no. 4 And then she said, no. 5 So, I mean, maybe Councilman Goode had been discussed with, maybe Councilman Nutter. I don't know. But it doesn't seem like there's a lot of time that's passed we could have these discussions?
Well, that's true, Councilman Kenney. I agree with you on your points, except to say, is that the reason to pass legislation?
No. No. I'm not arguing with or urging you to move it out today. All I'm saying is, I think it becomes increasingly frustrating on the day of the hearing, when we have had lengthy discussions about this bill and what we were going to move or not move, and then the last minute request comes, and we get thrown into chaos, and we're at each other's throats, and 54 Law/Gov't - Bills 771, 772, 818 - 2/28/05 we have delay, and there's some confusion. I mean, this is a masterful way of really controlling this body and keeping it from doing its job. I really believe that. And again, you're the messenger. I'm not directing this at you. I just think at some point in time this Council needs to decide that it's going to legislate on its own, as opposed to being manipulated and whipsawed by the second floor. That's my opinion. I mean, I guess it won't change until the administration changes. But until that time, we need to really kind of stand up for ourselves once in a while. Do you know what the amendments are about, Mr. Grace?
I do. I do. And what I'm not prepared to do yet today is to offer up the amendment.
What are you 55 Law/Gov't - Bills 771, 772, 818 - 2/28/05 changing?
I think we have concerns about the actual process of the contracting reforms which are in Bill 772. Some examples might include that there's a pre-selection advertising period that will come into play under Bill 772. I think now it might be 30 days. We think that would be unnecessarily long. There are --
I don't think we're at liberty yet to come up with the number of days and enter that as an amendment yet.
At liberty? This is a legislative -- democratic legislative process. What do you mean, not at liberty? If you don't agree with the 30 days, you must have another idea.
How about -- I'm doing my best to answer your question, and give you an outline of where some of our concerns are, which I certainly can do. 56 Law/Gov't - Bills 771, 772, 818 - 2/28/05 The bill as currently drafted includes -- There will be a new requirement for multiple signoffs for every professional service non-bid contract. I think it might include the Mayor, the Finance Director, the City Solicitor and the Procurement Commissioner, if I have those four right.
Okay. Three? Two? Or maybe we just go to the one and have the same system we have now.
Well, certainly fewer than four. I mean, we have a concern over whether every such contract should go to the Mayor, and whether that's something that is a proper requirement to impose on the Mayor, to look at every contract that comes through it. Because we're talking about thousands. It's the belief that, as we testified in November, 57 Law/Gov't - Bills 771, 772, 818 - 2/28/05 more than a thousand.
How many non-bid professional service contracts have we awarded in the last year?
As we testified in November, our concern is that this would include or entail more than a thousand contracts.
Could you find that out so we could compare it with the supposition of a thousand or more? Are there any other areas that...
There's a new requirement for monthly reports that would have to be submitted with regard to every non-bid contract. We think that there are -- it's a requirement of too many reports that would have to be prepared and filed. There are exceptions to the advertising requirements and the disclosure 58 Law/Gov't - Bills 771, 772, 818 - 2/28/05 requirements. We think that they are too narrow, and that what they don't take into account is the need for the government to be flexible enough to move forward swiftly with emergency professional service contracts, whether it's health and safety procurements or procurements such as that were that there is a -- time is of the essence, where there's a speed of the essence, that the government has to be able to move quickly. And we're concerned that with some of these new requirements, it will slow down that process of government. And we do have concerns about that.
So this bill has been since -- I think as amended -- since December 14th of '04.
Well, it is also true that we have done a lot of conversation and negotiation about different elements of all 59 Law/Gov't - Bills 771, 772, 818 - 2/28/05 these bills with Councilman Nutter, the sponsor of the bills. So, there has been a lot of communication. With regard to these changes in Bill 6 772? Yes, we're here today saying that we still think we can make Bill 772 better with a small -- with a small bit of time.
Councilman Nutter, at the risk of interrogating you, which I don't want to do, were these issues raised with you, these specific issues that are being testified to today?
Councilman Kenney, I have heard these issues before. There are no specifics, other than the concerns being raised. And I think as you well know, I would certainly -- would have been prepared prior to today if any set of proposed amendments had been given to me, probably including as late as this morning, to have some opinion about these items, be prepared to at least suggest to this committee proposed changes. 60 Law/Gov't - Bills 771, 772, 818 - 2/28/05 The issue of 30 days... I mean, I think, you know, there's nothing particularly magical to that date. It's a reasonable amount of time to allow the broadest opportunity for people to pursue professional services or no bid contracts. The issue regarding multiple signoffs. Yes, these are some of the highest ranking people in the government. I think the Procurement Commissioner is in the procurement business, the Finance Director is in the finance business, the City Solicitor... All contracts in the government go through the City Solicitor's Office anyway.
Is it any more cumbersome, in your mind, than the administrative board and the work that they do to -- Kind of a group effort there, isn't it?
Yeah. I don't know how many times they meet or how much work they do. But, I mean, it's not like all these contracts would come over on one day. 61 Law/Gov't - Bills 771, 772, 818 - 2/28/05 And I think it's important, given some of the current situation, that... whether it's the Mayor or the Mayor's designee. I mean, I don't know that the Mayor is going to sit and review every contract. That's why the Mayor gets the higher staff, who would probably make a recommendation to him one way or the other. But I think it's important that the chief executive have a much greater sense, given the current situation of what's going on, from a contractual standpoint. This emergency contracts issue, past City Solicitors have already issued opinions that the government has the right to secure contracts of an emergency nature. I mean, of course, we know that if a building falls down and a demolition contractor needs to be hired, that's an emergency. Of course, we already have people generally under contract or on a list to deal with those issues. But I am hard pressed to know at the moment, and maybe Mr. Grace can 62 Law/Gov't - Bills 771, 772, 818 - 2/28/05 share with us, what emergency professional services contracts have come up in the last six months or a year.
I just want to say for the record that I came here today fully expecting to vote on these three pieces of legislation. I think that if we allow the administration to get its way here in delay, and that delay causes in some way this not to be on the spring ballot, I think we only have ourselves to blame, if we allow ourselves to be kind of manipulated the way we're being asked to be. So, I'm ready to move forward. Mr. Chairman, it's certainly up to you in the end whether we do or not, but I would like to be on the record saying I would like to move forward, respectfully. Thank you.
I question very much whether because the Mayor's procedures are indefensible in his lateness, in his refusal to participate in discussions often 63 Law/Gov't - Bills 771, 772, 818 - 2/28/05 with people... I don't think it excuses City Council and permits City Council to act in the same indefensible way. I think that we ought to be about the business of getting the best legislation we can. And I think we ought to work to achieve that legislation at the initial stage of passage, and instead of passing something that may have all kind of flaws. Now, I think the Mayor's action in being so slow is probably indefensible, particularly at this stage of the game. And therefore, I will likely permit and assume that everything that had to be done to permit this action to be an action to be taken today be permitted. But I think it's going to open a serious floor debate which ought to be avoided. But I think the Mayor is putting us in a position that's very difficult to deal with, except to say maybe we'll have to let the thing pass today out of committee and have the fight on the floor, if a fight is warranted. 64 Law/Gov't - Bills 771, 772, 818 - 2/28/05 I thought it was reasonable to expect that the Mayor would be able to conform or have the opportunity to conform to the time requirement. But it's very unclear as to what the time requirement is, as to whether he can get it done in time for us to have this bill 9 considered properly at the spring primary. And since I don't know that, my present feeling is to continue this hearing until tomorrow morning, to give everybody -- till tomorrow at 2 o'clock, to permit everybody to figure out how it can be done in the time, because to me it makes sense only to say no to the Mayor if he's going to require us to miss the opportunity to present whatever we decide on at the spring primary. But if we can meet that date, then it seems to me we're going down into the wrong path if we say the Mayor acted badly, and therefore irrespective of what he wants to do, we're going to say no. 24 I think he did act badly. I have no 25 idea whether he was acting purposely to delay 65 Law/Gov't - Bills 771, 772, 818 - 2/28/05 us, but I know when Mr. Grace raised that to me, I said, I don't know what my decision will be after you talk to Councilman Nutter. But there are two things I'm concerned about here. One is that Councilman Nutter has done a yeoman job negotiating with the Mayor's people. It's not the Mayor. I have no idea what the details are. But Councilman Nutter in that negotiation did not represent the City Council. He represented himself and those who may have agreed with him. But Councilman Nutter was never appointed to take this action and to negotiate on behalf of City Council. But to his credit, Councilman Nutter did take the initiative. And he had the initiative, and the Mayor's people had the initiative, and they apparently have been negotiating together. But there was no one appointed by City Council to negotiate for it. So, everybody had a right to insist on negotiations with the Mayor. 66 Law/Gov't - Bills 771, 772, 818 - 2/28/05 But I, like most others, having high respect for Councilman Nutter, felt that he might do just as well as if he were appointed by everybody. But I would like to know what's more important: To show that we just say no to the Mayor because he acted in the way we didn't agree with or is it the quality of the bill? And I think that what we want to keep our mind on is the quality of the bill. And if there is no delay, then I think that perhaps the Mayor's request ought to be granted, even though it's for the time.
I would only suggest that I think ultimately the quality of legislation should always be our overriding concern. Having said that, because these are not parking regulations, there is a timing aspect to this. And it would just be helpful 67 Law/Gov't - Bills 771, 772, 818 - 2/28/05 in this process, without getting into who did what or who didn't share what or whatever the case may be, if there is a proposal, a concrete proposal, not a theoretical proposal, not a hypothetical proposal, not a thought proposal, but something actually written on paper, it would be helpful to have it as quickly as possible. And you are correct. I certainly was not in any way, shape or form representing the body in these discussions, although I've talked to every member about this. I was representing myself because I'm the person that introduced the legislation. Your point, though, is well taken that it should also not result in delay. So, what would be helpful to me to better understand from Mr. Grace, since he is here and is in charge of this particular matter is, I've taken down four items. If he could lay out for us on the record what the rest of the concerns are or what the rest of the issues are or what the proposed amendments seek to address, which he 68 Law/Gov't - Bills 771, 772, 818 - 2/28/05 again is not... I heard the words earlier... at liberty to share with us. When will they be ready? And what do they do? Because I would like to move forward in a respectful fashion. And if there's further discussion or negotiation that needs to take place, that's fine. I can't do that in a vacuum, and I can't do it based on theory. I've got four items here. I've addressed all four items. And I'm open to the discussion, but I need to know the facts. And I'd like to get them as quickly as possible.
I think, Mr. Chairman, I heard everything that the Councilman said. And I've outlined what some of our concerns are in Bill 772, and what our amendment -- the form our amendment would take. And I think they're the items that the Councilman just mentioned.
Are they just the four things? 69 Law/Gov't - Bills 771, 772, 818 - 2/28/05
What I don't have here is to go through each and every particular line by line item concern about the bill. That's the amendment. The Councilman's right that he needs to have the amendment in his hands, and we understand that. And rather than me try to verbally do the entire amendment, that was -- that wasn't -- Our point in coming to you today was in saying we were in the process of finalizing an amendment. We want to get it to the sponsor. We want to get it to the Chair. We want the best bill possible. Our concern is clear. It's not delay. And I think we as an administration have worked very hard at ethics reform for a year. And we think we have -- we can make this bill a better bill. And as you've pointed out, and provided we do so within the time frame and still enable this bill to move forward as Council wants it to move forward. 70 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Mr. Chairman, did I understand you to say that there was a hearing scheduled also on another matter for tomorrow --
Is it possible, Mr. Chairman, in your capacity as Chair, to either request or direct Mr. Grace to provide the proposed amendment to me either by the end of business today or first thing tomorrow morning? I'd like to continue the work. And I want to be respectful about it. That's the first. Second, if there is time needed to work on any of these matters, you asked me questions at the beginning of this hearing about the timing aspects of all of this. I would strongly recommend, Mr. Chairman, that the way for us to have time to still work on the matters and adhere to the kind of schedule that was talked about, and 71 Law/Gov't - Bills 771, 772, 818 - 2/28/05 that I get the impression that you would want to keep us on, the best thing for us is to move these bills out of committee on either today or tomorrow, get a first reading on the 3rd, be available for a vote on the 10th. And if there are any other amendments that need to be made, they can be made at that time, and we can then vote the bills on the 17th. If there's any other action that's going to be taken potentially adverse to the bills, they will then come back to us on the 31st, which still allows this Council, under the Home Rule Charter, to take any other action that it wants to take. That would be my recommendation, Mr. Chairman, in terms of the calendar and bill 19 management.
Well, I think that the proposal makes a lot of sense. But I also think the lateness of the Mayor in coming to this decision is a difficult thing for this committee to accept. And... I would like to hold it in 72 Law/Gov't - Bills 771, 772, 818 - 2/28/05 abeyance for the time being while I ask you, Councilman Nutter, if this bill will cover the Redevelopment Authority, all the different authorities we have. Does it cover Redevelopment Authority, Parking Authority, Housing Authority, P.C.D.C.? Because it seemed to me that once before this City Council attempted to regulate -- At the time that the presentation of an annual financial statement was required by the state, we passed a bill directing that every agency in the city that deals with city business follow that state law on ethics. But all the authorities hired the main law firms in the city to oppose us and to require that we not include them in, and they threatened court. I don't remember whether they went to court or not.
Does that mean that the people that contribute to the 73 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Redevelopment Authority will not have to abide by this law? Do you know anything? Have you discussed it with the attorneys? Have they had any opinion?
Yes, I have, Mr. Chairman. And I've also talked with other Council members about it. The section in question is Section 10 17-1208 which talks about city-related agencies. This is a somewhat fairly standard provision in a variety of other sections of The Philadelphia Code. The subject matter, though, here is rather complicated, as some would say. And the point that you raise, and the point raised by a number of other members, presents a bit of a legislative, if not legal, challenge. I would suggest to you, Mr. Chairman, that in an effort to make sure that the bill in our language is as clean as possible, and as complicated a matter as we already have in front of us, this particular section may further complicate the issue. 74 Law/Gov't - Bills 771, 772, 818 - 2/28/05 And I think it is a particular section that either needs further discussion or may not or should not be addressed at this particular time, given some of the complications surrounding extending these provisions to agencies that we do not directly have authority over or control over, although this particular section only deals with those agencies as it relates to them having a specific agreement, contractual agreement for services, with the City of Philadelphia. That is a very fine, important but narrow legal point which may further complicate the legislation in front of us. And I think it needs reconsideration.
But doesn't the city often use these agencies to do contracting for the city directly?
Yes, we do. 75 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Well, that's where you start to get into the matter. The role of the contractor is the function of what's the nature of the contract between the city and the outside city agency. The larger issue that has been raised in many instances is the city-related agency. And I don't want to pick anyone in particular. But we know all of the various alphabet soup agencies that are not directly under the control of the government. The legitimate question has been raised: Since we do not necessarily control them, have no control over their budgets, in most instances, what is our legal ability to legislate, even on a pass-through basis, with regard to those agencies? This is one of those questions if you ask a couple of the attorneys a question you'll get two, possibly three different answers, all of which seem to revolve around it depends. I don't like to legislate in the 76 Law/Gov't - Bills 771, 772, 818 - 2/28/05 world of it depends. And so, depending on what the contract is, depending on what the agreement is, depending on what the request for services is; but most importantly, in most instances, members of this Council do not have direct involvement in any of the activities at those agencies. And so, you end up with the question of whether or not we should be legislating in that particular area, and imposing the various limits on those contractors who are doing work for another agency outside the government. It is a legitimate and serious question. And I think that through discussions it probably needs to be revisited, if not reconsidered, as to whether or not that particular provision should remain in the legislation.
Well, how do we revisit or reconsider it? Do we do that before we were to...
Yes. We 77 Law/Gov't - Bills 771, 772, 818 - 2/28/05 would... I mean, the ultimate in revisiting on this particular item is whether we consider deleting it from the legislation. And we would do that in the committee hearing process.
Point of information, Mr. Chairman, and to Councilman Nutter. Councilman, I was in and out of the room. And I hear your statement there about the R.D.A. that was the Chairman's question. But really, Councilman -- please correct me if I'm wrong -- we don't have anything to do in no bid contracts anyhow. So, you know, not to be facetious here, but we're trying to do legislation that gets us involved in a process that we shouldn't be involved in anyhow. And then you're saying now that we don't have anything to do with the R.D.A. Do we really have anything to do with contracts? And I see --
Well, 78 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Councilman, I appreciate the question. I would make a very clear distinction between our role with outside agencies versus our role in the government. We are elected officials.
We approve budgets. We approve bills and/or resolutions that come through this Council, and we can exert in many instances an incredible amount of influence in a variety of places throughout the government that we serve. So, I would suggest to you that... (Interference noise through the microphones.)
That's the FBI bug, Councilman, that's working. It's a check.
You never know who's listening. I would suggest that there is a very clear and serious distinction between our 79 Law/Gov't - Bills 771, 772, 818 - 2/28/05 roles and any, quote unquote, influence that we might exert, with regard to city contracts versus what we may or may not be able to do with regard to outside contracts. I would not want this record to reflect or leave anyone with the impression that somehow, even though we in many instances spend a lot of time, if not a lot of money, and a lot of effort trying to get elected to these positions, that having attained these positions we now are mere spectators in the government and have nothing to do with anything that happens other than in our offices.
But I have to tell you that only true brothers can love each other.
But that's a 80 Law/Gov't - Bills 771, 772, 818 - 2/28/05 stretch on my part. I've never -- would want to or have I ever been able to influence any contract in this government. And I don't know how you would do that anyhow. If you can do that, more power to you, pal, but I don't think I can. Now, the head of the R.D.A., it's no 9 secret, is the head of the electrician's union. And I'm a member.
And I don't know what Johnny Doc does, as far as contracts go. I would doubt he has nothing to do with that. It's probably Herb Wetzel day to day.* I mean, I can pick up a phone and get a no from Herb Wetzel just as much as I could get a no from maybe the L & I Commissioner that's giving out a contract.
So, I mean, that's a good reasoning, but it doesn't work with me. And what I'm thinking here, I'm thinking here, thank God we're not involved 81 Law/Gov't - Bills 771, 772, 818 - 2/28/05 in contracts because down there at the Federal building they have me, Darrell Clarke, you, and maybe Councilman Cohen down there. I don't want to be involved with that, and I don't know if that is shirking the work or not trying to do anything that I'm doing.
And I got elected here to be a City Councilman, not to be a Mayor. And, you know, this isn't... Anything you do around here, it's like, well, Mariano's on this guy's side; Nutter's not. This is about good government and trying to get it all out in the light and figure out what's happening here. I don't want to be involved in contracts: Bids, no bids, or I would run for Mayor.
Now, I think if I was going to have influence on anybody I could call Carl Green. Maybe Jannie could 82 Law/Gov't - Bills 771, 772, 818 - 2/28/05 call Carl Green. Jannie -- Councilwoman Blackwell's on that board. So, for that answer that doesn't work for me. It may work for the other people. I don't say you're right or wrong. In all due respect, that doesn't work for me. So, why are we trying to get more things to do that can get us in Federal prison? I don't look at it. My name ends in a vowel, so they're always looking at you anyhow when your name ends in a vowel. I want to be sure what I'm doing in the parameters of the job description that I ran to get elected for three times now. That's where -- I mean, I'm not trying to be funny or smart. I don't see it. I really don't see it. I think Councilman Cohen, who I've differed with over the years, but we always go back like you, to be able to try to work things out for the good of this Council and good of this city. I don't get it. I don't get why we're pushing this so hard. 83 Law/Gov't - Bills 771, 772, 818 - 2/28/05 And I think that's how -- I haven't talked to him about this, but I think that's what he's trying to do. Like, there are other agencies that -- He's been a Councilman a long time.
He could pick up the phone and call anybody. He probably never did it, nor would he want to. Once we get into that, it never ends.
Thank you, Councilman. Actually, I don't want to beat a dead horse, but I just wanted to concur with Councilman Mariano, with respects to our involvement in influencing no bid contracts. I could possibly be said to be the 84 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Council member who, quote unquote, is closest to the Mayor, but I can honestly sit here and say that I don't have a clue as to what the process is, as it relates to the solicitation and the ultimate award of no bid contracts. And maybe that is a problem. Maybe I should have a clue. But I don't want the inference to be that somehow because I have some relationship with the elected official that makes that decision, that somehow I use that level of relationship to influence it. That's just something that I choose not to be involved with; and I don't think, frankly speaking, any members of Council choose not to be involved with [sic]. As a 5th District Councilperson, I have more than enough to do as it relates to my responsibilities in the Council District. So, as Councilman Mariano said, I think this perception that somehow that elected officials are automatically wheeling and dealing and using their levels of influence on the selection process that we're not officially involved with, is a myth at 85 Law/Gov't - Bills 771, 772, 818 - 2/28/05 best. So, I am -- And I voiced my concerns to several members and also to the sponsor, the Chair, that if I'm involved in a process, then I'm willing to entertain some level of responsibility and scrutiny. But if I'm not involved in the process, then why should the perception be that somehow I'm using some veiled attempt to manipulate the process in order to get some support from, you know, a campaign contributor. And if, in fact, that was the case, I'm not doing a very good job because I only have $6,000 in my contribution list. And that will probably automatically get me a candidate to run against me. But I just -- You know, this whole perception, like somehow we're manipulating the process, is really a myth. So, I just wanted to on the record say that that's just not something that this particular Councilman is interested in being involved with. 86 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Thank you, Mr. Chairman.
You can wait for a response from the members of the Council.
Well, I'm not actually asking for a response; just a statement for the record.
No. I respect both my colleagues' perspectives, and I understand those perspectives. I think, basically, there are two issues here: One, trying to establish a process that has a certain level of transparency and openness, provides as much opportunity for people as possible to know of what the contracts are, what the availability is, and where to go to seek them, and increase opportunity for people to access those contracts. Secondly, there are certainly any number of situations where we all as elected officials in the government, fairly or unfairly, end up being looked upon in certain ways. And I guess, from my perspective at 87 Law/Gov't - Bills 771, 772, 818 - 2/28/05 least, the best way to try to deal with that is, if we're all covered by the same rules, then -- and everyone knows what those rules are, then you have much less to worry about. So... But that's just my view. Thank you, Mr. Chairman.
Thank you, Mr. Chairman. I just wanted to just for the record also express my views. And also, since we've gone into this on a very well needed ethics reform legislation here, that Councilman Nutter has been sponsor of all the -- of the number of ethics bills has been very forthcoming, at least with me. And I hear from other Council people that he has -- that he has been very diligent in talking to us about how can we -- We all know that this has to happen. And that I want to thank him publicly for reaching out to me on a number of occasions and spending some time with me 88 Law/Gov't - Bills 771, 772, 818 - 2/28/05 going over all this stuff that, to me, is still fairly new language to me. You know, I think it is time to regulate no bid contracts. I think it is time the city plays where people know that the best get city work, that it is time to do it and it's time to do it now. But we also have to do this in a fashion that makes sense to all of us. The framework proposed and the present pay to play legislation that the committee chair read off at the start of this session before Council seems good, but the devil's in the details, as they say. And I am -- And since Councilman Nutter has, particularly in Bill 040772, made some recommendations, and because of his dialogue with Council members and I think also with the administration, that one of the issues of are we going to -- you know, how are we going to advertise and all that stuff, that there's -- that he's made some changes where the web site seems to be where we're going or we will recommend be the place of 89 Law/Gov't - Bills 771, 772, 818 - 2/28/05 first entry for contractors in the City of Philadelphia. But I would like to just pose these questions, Councilman Nutter. And you don't have to give me an answer now. But I think that since we have this opportunity, let me just throw them out there. What agency is charged with coming up with the disclosure forms the contractors and applicants have to fill out? My reading of Bill Number 040772 suggests that, for example, application forms have to be developed by each city agency that needs to do no bid contracting. Does it make any sense to have a multiplicity of different forms? Shouldn't one agency of the government develop a single easy-to-fill-out, plain English, maybe multi-language application, similar disclosure forms? What's the volume of no bid contracting in the government? How many a year? How many a quarter? How many a week? What's the administrative burden 90 Law/Gov't - Bills 771, 772, 818 - 2/28/05 that this bill will put on the government? How has the administration planned to meet that burden? So, I am now at this point concerned about if we're going to -- we're going to go ahead and pass pay to play -- to eliminate pay to play through legislation, that we might as well -- And since you got into it, Councilman Nutter, we might as well get these answers ahead of time. I know that the legislative process is one that we make laws and the executive branch then figures out, you know, how to enforce those laws. And we all know that there's laws have been passed around here for many years that are never enforced. And if this is -- This is very important to this city. It's very important to us, that if we've already engaged, through some of the language that the sponsor has put into this, that we might as well get as many answers. And I don't say this, Mr. Chairman, 91 Law/Gov't - Bills 771, 772, 818 - 2/28/05 to any way impede what needs to be done today on these pieces of legislation. I think that we need to get this done, get it done expeditiously, carefully. And I think we have done -- There's been some -- The sponsor has carefully worked on this. He has collaborated with us. But still there are some unanswered questions. So, I don't want you to, Mr. Chairman, take my comments that I've just made in any way to stop what needs to be done on your committee. Thank you, Mr. Chairman.
Thank you. Councilman Nutter, could you answer some of the questions that were raised?
Yeah, I tried to take them down very quickly. And Councilman Ramos, if I missed one, you'll please ask me again. With regard to the disclosure form, you'll notice in Section 17-1202 of the bill, each of the city agencies that seeks to issue a no bid contract or professional services 92 Law/Gov't - Bills 771, 772, 818 - 2/28/05 contract, they would then be required to coordinate with the Procurement Commissioner in carrying out the provisions of this particular chapter. In fact...
The answer to that question is that that one agency that I referred to will be the Procurement Commissioner?
The Procurement Commissioner shall develop procedures to ensure that such contracts are advertised and approved in a timely, efficient and coordinated manner in the best interests of the city, and shall coordinate with the city agency in carrying out the requirements of this chapter. The Procurement Commissioner now for the first time will be involved in all of the professional services, no bid contract 93 Law/Gov't - Bills 771, 772, 818 - 2/28/05 activities, which does not exist today. The departments do it on their own individually today. There is no one central entity involved in professional services or no bid contracts. I think the test -- So, the issue is, the Procurement Commissioner will be the central person and will coordinate with all of these agencies. And I believe that our current Procurement Commissioner or future Procurement Commissioner would develop one form for everyone to have, to make sure that everyone's operating with the same document. With regard to the number of contracts, my recollection of the testimony at one of the hearings was that there were a little over 1500 contracts that were either no bid or professional services in the last fiscal year. Again, those contracts take place over the course of a year. It's not that they all come rushing in on one particular day. 94 Law/Gov't - Bills 771, 772, 818 - 2/28/05 With regard to any additional burden on the government -- and obviously I can't speak for Procurement. But they were in to testify. I think that, quite honestly, what I'm left with the impression of is, other than some reporting requirements which ultimately, I think, are in the best interests of the city and certainly for members of this Council, and the public, to know what's going on, there -- the bulk of their process will be the same as it pretty much is today. No one has testified to any significant work burden or cost issue. Mr. Grace has mentioned again today a concern about how many people have to sign off on the contracts, and which I guess will be a topic of discussion. But you know, all the people in the government, as best I know, are hard-working and diligent public servants. And all the contracts either go through a department... They all end up at the Law Department anyway. 95 Law/Gov't - Bills 771, 772, 818 - 2/28/05 And so, I don't -- I would not expect that there would be some significant burden on the government. But quite honestly, the importance of the issue, I believe, is such that we should take the necessary, reasonable steps to make sure that the process is as open and transparent as possible, and people can understand and get information so that this is not a mysterious kind of operation. Councilman, did I answer all your questions?
Yes. Thank you so much. Thank you, Mr. Chairman. Thank you, Councilman Nutter.
I'm inclined to have both sides very angry at me, rather than have one side. It's always more comfortable to have both sides. 96 Law/Gov't - Bills 771, 772, 818 - 2/28/05 I'm very much inclined to suggest... Let me raise with Councilman Nutter one question. Is my calendar reading correct to say that tomorrow would be just as good as today, from the point of view of meeting the requirements of the Home Rule Charter?
Under those circumstances, at the end of today's hearing, I'm going to recess it for one day. Now, if you can present your request tomorrow -- And I'll tell you why I'm doing it. I think it would be a great achievement. I don't know whether it's possible. We may end up in either a worse battle tomorrow than today. But I think it would be fine if on a piece of legislation as important as this we could both move the administration and Councilman Nutter's general positions to the point where both agree on this legislation. Because then we know it will be meaningful, and no side will feel as if the other side is playing less than fair. 97 Law/Gov't - Bills 771, 772, 818 - 2/28/05 So, I'm very much inclined to give you an additional day, knowing if the administration were serious, it could do wonders in one day. If not, it could just stretch us out for months. So, would that be helpful? Would we be able to get it together? Because I've known when the administration has done lots in a day and when they've done nothing in months. Councilman Clarke.
I didn't mean to interrupt you in the middle of your question, Councilman.
Mr. Chairman, I just wanted to say in reference to the fact that it would be a great day -- I'm paraphrasing -- that Councilman -- if Councilman Nutter and the administration can come together and agree on some consensus legislation. I remind you of your earlier statements that my good friend and colleague, 98 Law/Gov't - Bills 771, 772, 818 - 2/28/05 Councilman Nutter, was negotiating with the administration earlier on his behalf. So, I don't -- I just want to make it clear that personally the 5th District Councilman may have some issues outside of what they ultimately agree on, for the record.
And everybody would have till tomorrow to present them in any form.
An amendment to Councilman Nutter's bills, if that went through. See, what I see is, if there were agreement between the two main positions, without deciding that Councilman Nutter represents himself or represents the Council... But the two main positions that have been talked about, if they were brought together, it would mean that the Mayor has 99 Law/Gov't - Bills 771, 772, 818 - 2/28/05 moved from his position that pay to play must be decided by the state, and he's accepted the Council's view that it's worth trying to have the city regulate it, and that we've also moved a long way to show our efforts to cooperate with the Mayor. Because we've -- We in Council have long sought cooperation with the administration, and generally the repayment comes in continued ignoring our positions. So, if there is a chance -- if there is a chance for improving the relations of both, I'd like to get both your views on that.
Mr. Chairman, respectfully, I'm not sure exactly what your question is right now.
The question is, do you think a day would be enough time? Because I'm not inclined to go beyond that.
With regard to our proposed amendment -- 100 Law/Gov't - Bills 771, 772, 818 - 2/28/05
With regard to the proposed amendment, as it concerns some of these contract issues, I'm going to go right back to my colleagues and see if we can't get the amendment to the sponsor of the bill just as soon as possible prior to tomorrow.
And I would say by tomorrow 9:00 -- 10:00 a.m. in my office I would be prepared to receive them. And I think a copy should go to Councilman Nutter at the same time, with the understanding that this hearing would resume at 2 o'clock tomorrow, and that something will be reported out at the end of tomorrow. You know... And I can't foretell the efforts, you know, whether you're going to be successful or not with the amendments. 101 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Thank you, Mr. Chairman. Mr. Grace, although the amendments are not final yet, do you know if the administration is amending all three pieces of legislation?
Most of what we're discussing, Councilman, concerns a proposed amendment to Bill 040772. I believe there also will be a proposed amendment to Resolution 040818, the Charter change. And there are no amendments that I'm aware of in process with regard to the third -- the third piece of legislation.
I understand when you walked me through that process before. I don't have the amendments prepared for 102 Law/Gov't - Bills 771, 772, 818 - 2/28/05 introduction.
Apparently, the Law and Government Committee already has a hearing scheduled at 2 o'clock tomorrow, so there's no problem setting the hearing.
Yes, Councilman Nutter. What is your view? Would that be worth getting that bill of having the Mayor change his position and we change our position a bit and having a cooperative effort?
Well, I'll vouch that comment for the moment. But the Chair may have been slightly distracted in a conversation when Mr. Grace responded to a question by Councilman Goode, which I am now hearing for the first time.
Mr. Grace has now put on the record that in addition to, at 103 Law/Gov't - Bills 771, 772, 818 - 2/28/05 the moment, unknown amendments to Bill 3 040772, that the administration may also have amendments to the Resolution 040818. There's been no discussion of that in the course of this hearing this afternoon.
That Resolution 10 is the actual Charter change that allows for Council to have certain powers which are then encapsulated in Bill 772.
It's the nature of the questions that you were asking me earlier about why are we going to the ballot, because we need to make certain changes to the Charter. That's what Resolution 040818 does. Under questioning from Councilman Goode, Mr. Grace now tells us here that the administration may have amendments to that Resolution also. I do not know what he's talking about. 104 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Councilman, it's my understanding that our legal advisors from the Law Department have communicated some information to... It was my understanding... to Councilman Nutter's legal or technical advisors concerning one amendment or adjustment to the Resolution, to Resolution 11 040818.
Well, Mr. Grace, if it's regarding the one-year contract, I already have a proposed amendment to deal with that. And if that is the case, then there's no need for an additional --
-- or similar amendment to come from the administration. But it be -- Now, are there any other proposed amendments? Is there any other information you'd like to share with us here this afternoon?
There's no other changes that would be proposed to the Resolution. 105 Law/Gov't - Bills 771, 772, 818 - 2/28/05
Does that clear up the question you raised, Councilman Nutter?
All right. Does anybody have any other thoughts they want to raise? Councilman Mariano, anything?
I just want to say that since I get home and it's snowing, I might have some amendments tomorrow for the Board of Ethics in the Code. I just don't want to think that this means there's no amendments. Everybody understands that.
I want everyone to understand that I might have amendments tomorrow, you know what I'm saying? He might have amendments -- Councilman Goode might have amendments. Just because -- 106 Law/Gov't - Bills 771, 772, 818 - 2/28/05
-- he only speaks for him. And as far as -- Till he gets fired downstairs from doing the wrong thing.
Does not mean there's no amendments. I mean, I'm not saying there is, but I'm not saying there's not.
My comment in no 14 way, shape or form has anything to do with any member of City Council. I'm just trying to understand, since the only reason we're really having this extended discussion today comes as a result of a conversation between Mr. Grace and the Chairman somewhere shortly before 1:30 today for a 2:00 hearing, and a 1:30 hallway conversation with me about the prospect of amendments... But for that, I think we would have had a full hearing here today, and we would have discussed any proposed amendments, 107 Law/Gov't - Bills 771, 772, 818 - 2/28/05 whether they mean adding material or deleting material. And we've now ventured into a whole different realm because of the lateness of this request and the Chair taking the prerogative of the Chair to make the accommodation. If we can get in here tomorrow, if I can have material, at least from Mr. Grace, who started this process, that would be helpful. If other members have other matters, that's... you know, that's within their right, and that's our process.
Well, I think everybody ought to be ready. It would be the intent of the Chair at this time to see to it that this matter is decided by the committee by the end of tomorrow. By the end of the hearing tomorrow I think there will be a vote. That would be my hope, unless the 108 Law/Gov't - Bills 771, 772, 818 - 2/28/05 unknown -- there's unknown intervention on somebody's part, but... So, Mr. Grace, I expect to hear from you. By o'clock, if there's nothing in 6 the office, we will assume you decided it 7 wasn't worth your time or you couldn't do it. 8 And we'll then go ahead anyway. 9
Mr. Chairman, you will 10 hear from our office, from myself or from our office by tomorrow morning by that time.
At the same time that I get the material, I'd like Councilman Nutter to get it.
Mr. Chairman, the hearing's at 2:00 p.m. You asked for the material to be provided by 10:00 tomorrow 109 Law/Gov't - Bills 771, 772, 818 - 2/28/05 morning?
Yeah. We want the amendments by 10:00 in the morning, to have time to consider them.
Now, actually, I would like to suggest that you get eight copies -- nine copies, one for the President, one for each member of the committee. That makes eight. Somewhere there's an ninth.
For the stenographer to have it, right. So we can all have a chance to look at it. I don't know what happens if the weather intervenes.
All right. That's a good idea. I think every member of the Council... It's an excellent suggestion by the Council President... get a copy of the proposals. 110 Law/Gov't - Bills 771, 772, 818 - 2/28/05
If we could... Do you want to distribute them or do you want them to distribute them?
All right. If you get them to each member of Council -- You've done it before many times.
Any other business that comes before I recess it until tomorrow at 2:00? (No response.)
If not, the Committee on Law and Government stands in recess until 2:00 p.m. at Tuesday, March 1st. (Hearing concluded at 4:00 p.m.) 111 CERTIFICATE I HEREBY CERTIFY that the proceedings and evidence are contained fully and accurately in the stenographic notes taken by me upon the public hearing of The Philadelphia City Council, taken on February 28, 2005, and that this is a true and correct transcript of same. _____________________________ DAVID A. DEIK, RPR and Commissioner of Deeds (The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the direct control and/or supervision of the certifying reporter.)