COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING AND PUBLIC MEETING BEFORE THE COMMITTEE OF THE WHOLE - - - Wednesday, January 30, 2002 2:25 p.m. Room 400, City Hall Philadelphia, PA - - - RES. 010672 Confirming appointment of The Honorable Nelson A. Diaz as City Solicitor PRESENT: COUNCIL PRESIDENT ANNA C. VERNA COUNCILWOMAN JANNIE L. BLACKWELL COUNCILWOMAN BLONDELL REYNOLDS BROWN COUNCILMAN DARRELL L. CLARKE COUNCILMAN DAVID COHEN COUNCILMAN FRANK J. DICICCO COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN JAMES F. KENNEY COUNCILWOMAN JOAN L. KRAJEWSKI COUNCILMAN W. THACHER LONGSTRETH COUNCILMAN RICHARD T. MARIANO COUNCILWOMAN DONNA REED MILLER COUNCILMAN MICHAEL A. NUTTER COUNCILMAN BRIAN J. O'NEILL COUNCILMAN ANGEL L. ORTIZ COUNCILMAN FRANK RIZZO COUNCILWOMAN MARIAN B. TASCO - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 2 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
This is the Committee of the Whole regarding Resolution 010672, confirming the appointment of the Honorable Nelson A. Diaz as City Solicitor. (Mr. Diaz comes forward.)
All right, Mr. Diaz, you can start your statement.
Thank you, Madam President. Good afternoon. I'd first like to apologize to those members of my former law firm who spent a lot of billable hours here, and I appreciate that they took the effort and the time, all of this time, to be here. There's one -- I guess we can say one representative Joan Stern, who you all know well, is on the Executive Committee so I guess I can mention her for all of the members that are here from that firm. I would also like to introduce to you probably for the first time here my wife, which is Sarah Manzano (ph), who's in the back. If she would stand so that you could meet her, Madam President. (Mrs. Diaz stands.) 3 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 (Applause.)
And my younger daughter is here, Delia Diaz. (Miss Diaz stands.) (Applause.)
There are members also from the Law Department who are here, and sitting with me will be Donna Mouzayck, who's the First Deputy City Solicitor; Dan Cantu, Chair of the Corporate and Tax Unit; William Thompson, who was acting City Solicitor and now chair of the Litigation Group; and one of our other executive committee members just had a baby this morning, and as a result, Charlie Nichols has just been called to duty to be acting Administrative Law Chair, and she's presently the Chief Deputy Solicitor for Health and Human Services. Madam President and distinguished members of the City Council, although I know that many of you, for purposes of the record, know me, and my name is Nelson A. Diaz. I am currently serving as acting City Solicitor. It is a great honor to appear before you seeking confirmation as City Solicitor. 4 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 I also want to take the opportunity to thank the Mayor for this appointment. Over the past several weeks, I've had the privilege to speak with many of you regarding the work of the Law Department. I very much appreciate the time you've spent with me, and I thank you for your courtesy. I offer now a few public statements about my background and personal goals for the Law Department. As you may know, I have been engaged in the practice of law for almost 30 years. I am not going to provide you with a detailed listing of my experience and accomplishments, but I want to stress certain aspects of my career that I believe will assist me in advancing the goals of the Law Department. Most recently, I was a partner at the law firm of Blank Rome, handling matters in the Litigation and Government Relations Department. S. Department of Housing and Urban Development, where I managed a department of over 500 lawyers. Prior to HUD, I 5 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 was a judge at the Court of Common Pleas of Philadelphia for years and served months as 4 the administrative judge of the Trial Division, 5 where I instituted reforms that dramatically 6 reduced backlogs and delays in case processing and 7 saving millions of dollars, which you were able to 8 place back into your budgets. 9 I have lived in Philadelphia since 1969, 10 when I came here to study law at Temple University 11 School of Law. I have studied and practiced law 12 here, served as a judge here, raised my family 13 here, and am proud to claim Philadelphia as my 14 home. 15 One of my goals is to save the City 16 resources by reducing spending on outside legal 17 services. In this regard, I have already received 18 and reviewed some of our outside contracts for legal services and have terminated a number of them. I have begun to identify ways in which certain matters can be handled more efficiently and effectively without jeopardizing the representation of the City of Philadelphia and will continue to do so in the days ahead. We have outstanding lawyers in the Law 6 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 Department, many of whom are familiar to you, many of whom you will call directly and bypass me and many who the Mayor will call and bypasses me, but we propose a percent reduction in the cost of 6 outside counsel for the prior fiscal year. 7 Reducing outside counsel costs will likely require 8 that we utilize more in-house attorneys. I am 9 committed to increasing the Law Department's 10 capacity to handle major transactional matters 11 in-house, as a large portion of past outside 12 counsel costs have been spent in this area. 13 We are currently budgeted for 165 14 attorneys and are operating with only 150. Right 15 now, we're in a hiring freeze. If I am permitted 16 to hire more attorneys, I will focus on hiring the 17 best and the brightest attorneys available to fill 18 critical public-service positions. At the same 19 time, I will place particular emphasis on finding 20 highly qualified minority lawyers.
21 I am very proud of my own background in opening doors to minority attorneys in Pennsylvania and elsewhere. While at Temple Law School in the early '702, I founded Black and then the Puerto Rican law student organizations and advocated for 7 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 increased admissions for the disadvantaged for Latinos and African-American applicants. When the Mayor announced my appointment last year, or a few months ago, he acknowledged such activities which he believed assisted his own admission to Temple Law School. I was the first person of Puerto Rican heritage ever 01admitted to the Pennsylvania Bar and was the first Hispanic judge appointed and subsequently elected in the Commonwealth of Pennsylvania. I have been involved throughout my career in activities promoting the advancement of qualified minority lawyers and served the community to my best capacity. My efforts have been recognized over the years by numerous groups such as the Philadelphia Jaycees, the Philadelphia Commission on Human Relations, National Conference on Christian and Jews, the Foundation for the Improvement of Justice, the American Bar Association, the Pennsylvania Bar Association, and most recently, the Hispanic Bar Association of Pennsylvania. I have demonstrated my commitment to diversity, honesty, and integrity, and will continue to do so. 8 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 The Law Department has had real successes in reducing expenditure for claims made against the City. My goal is to continue upon the successes of my predecessor in further reducing costs in that area. While general counsel at HUD, we settled a backlog of more than major civil-rights cases 9 and reduced a nationwide backlog of other 10 significant cases. My experience as a Common Pleas 11 judge provides me with a unique insight into 12 evaluating the merits of cases, valuing claims, and 13 developing procedures for minimizing litigation 14 costs. I will bring all of those skills to bear if 15 confirmed by you as Solicitor. 16 I also plan to institute a new initiative 17 to increase the collection of revenues due to the 18 City. For example, I would like to spur a 19 competition among our tax-collection vendors in 20 order to enhance their efforts. The Law Department has played, and will continue to play, a major role in assisting the Mayor and this administration in developing plans for the Neighborhood Transformation Initiative. The Law Department is particularly involved in this 9 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 area of expanded code enforcement and legislative reform to help speed up the property acquisition. I believe I can be of particular assistance as a result of my experience in the Court of Common Pleas and at HUD in developing and enhancing a systematic approach in code enforcement matters and in sharing my view of how other cities around the country have addressed the issue of blight. It is anticipated that the work is likely to dramatically multiply as NTI moves forward. In addition to all of the work the Law Department performs with respect to litigation, transactions, taxes, and social-service matters, we of course are also your lawyers. At this time, I offer you my commitment to provide each of you with timely and qualified legal services. I fully understand the unique role of the Solicitor under our Home Rule Charter. Although the Solicitor is counsel to the Mayor and all members of the Administration, I am also City Council's attorney. Rest assured that any response from my office to a request from any member of Council will be completely confidential, honest, and with my best abilities. Now, unless Council 10 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 members directs otherwise, I will then make them public, indeed, even if the facts that such a request has been made would itself be made confidential. We have, and will continue, to provide you services with respect to drafting and exploring legislation.
I fully appreciate the importance of responding promptly to your requests. It is very important to me that you are provided with creative and thoughtful consideration of the problems you present. In that regard, I have made clear to the attorneys at the Law Department the need to outline options and multiple courses of potential action when providing legal services to you or elsewhere. When Council adopts legislation, it is entitled to a presumption of the legality, and I will decline to give my approval of a bill only in the clearest cases of invalidity. I will approve any request by City Council made by resolution for the retention of outside counsel to test the legality of a bill. I believe my experience as a lawyer and a judge allow me to oversee resolutions of the very complex and important problems that are brought into 11 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 the Law Department. As you know, I have the strongest commitment to public service, having spent most of my career as a public servant. Lastly, I would like to thank you and the Mayor for giving me the opportunity to come before you and seek confirmation to such an important position of service to the people of Philadelphia. I will be happy to answer any questions you have.
Thank you. The Chair recognizes Councilman Ortiz.
Thank you, Madam Chair. Nelson Diaz is a friend of mine from long, long ago. He is not only the second Latino, but he's the first Puerto Rican as City Solicitor, and as the first Puerto Rican, it's an honor to have that. I've asked several questions of previous City Solicitors, and you're the most recent one. You said that currently you have 255 attorneys.
150. And of that, how many of them are Latino? 12 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
Two. And I imagine in supervisory positions, there aren't any.
There are none. I've asked this question of previous City Solicitors over the years, and those of you that have been here before understand that. And I would like to see, because we keep getting -- we keep getting the promise that we are going to be hiring more Latino lawyers, and it's never really that promise kept. The previous City Solicitor that was before us two years ago made that statement, and I imagine that those two attorneys are the -- I don't know how long they've been there, but it's -- out of the number that we have, we've got to be able to do better. And I know that with you there, I can expect that to begin to change.
I commit to you, Councilman, that if the freeze is withdrawn, you will have a 300 percent increase on the same day. 13 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 (Laughter.)
That's terrific, that will bring us to 4, but that's all right. (Laughter.)
Well, that's better than we've had before; I mean, the commitment is there. And also, I commend the fact that you say that -- and I like it that more contracts will be handled -- more work will be handled in-house rather than just be outsourced. However, of those that are outsourced, how many contracts and to whom -- in the last two years, how many contracts have been outsourced to other law firms across the City and what is the percentage of that number that has been given to Latino --
In the contracts that I reviewed, Councilman, there is only one Latino contractor who is getting a significant amount of revenues -- "significant," whatever that word means -- revenues from the contract opportunities.
One that is significant, but there was another contract that was let out to another firm, so there are two at this point.
Yeah, it's approximately -- the budget shows that we budget about 5 million, and this year, we've spent about 8.7 million.
But what is the total of law firms that are non-Latino that have been given contracts to?
I believe of that number, probably 90 percent or more would be non-Latino.
I have the percentage of minority firms, but I believe you're asking me about Latinos.
Well, give me the percentage of minority terms and then, you know, 15 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 break it down to Latinos, what percentage we make up of that, which is probably 1 or less percent.
Yeah, for the fiscal year '00, 16.5 percent are female-owned firms; fiscal year '01, 34.57 for female-owned firms and percentage; and the percentage of minority firms for fiscal year '02 -- excuse me, all those were for minority firms -- is 35.39. For female-owned firms for '00 is 6.02; for female-owned firms, 4.50; and '02, 16.61 percent.
Could you submit a list of those firms that have been given contracts to the President?
I can give you exactly this record that I have; that way I am prompt.
And if I need to in any way supplement it, I will, Madam President.
And next year when we have these budget hearings, I'll ask the same questions so, obviously, you're going to have much greater numbers at that time. 16 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
Thank you. The Chair recognizes Councilman Nutter
Thank you, Madam Chair. Good afternoon, Mr. Solicitor. Let me first say that notwithstanding the comments of my colleague Councilman Ortiz and his identifying you as a friend, I would not take that into consideration as I contemplate the weightiness of this vote regarding your confirmation. (Laughter.)
I know you well enough on my own to do that. Let me simply ask you though, about -- from time to time, some Council members, including myself, get a notion of trying to legislate around here from time to time, and we often get opinions back with a laundry list of reasons why you can't do certain things. Sometimes the footnote was actually longer than the information on the rest of the page. In particular, it's often raised this one opinion, Formal Opinion No. 7, which talks about the creation of boards and commissions by City 17 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 Council, and I think it generally says that it's not something that we can do. Would you share with us, if you will, your opinion about that opinion. And is that still a good opinion in the Law Department?
I would have to look at it, but I have to tell you that when we review legislation, we provide the same responses and advice -- or I will, anyway -- that we give to everyone at Council and to the Mayor. It will be consistent and the advice will be the same. In any fashion that you may need advice which you think we are not providing adequately and you need a second opinion I've shared with the President that I would be more than happy to seek that second opinion to make sure that you are comfortable and confident with the advice that we provide.
I appreciate that offer and let me, at least at this moment, since I've over the years probably driven half of your staff, your relatively new staff, crazy in my own right and tell you that I have enjoyed great service from the Law Department; there are many 18 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 fine people up at the table and behind the rail; I won't go into all of that. You mentioned in your statement also about the opinion process. Could you share a little more detail from start to finish in terms of when the request comes in, what happens to it, what won't happen to it, where does it go, where does it not go, and those kinds of details.
I'll be happy to share what I've learned in the last month and a half. Some of you have relationships with individuals within our City department; you begin in many occasions the process by asking him or her questions related to that. At times, they will come to me and they will sit with me and try to evaluate and attempt to do the appropriate research necessary and then get my final approval to send. On other occasions, they give you their advice off the cuff, which is not official from the City Solicitor if not signed and approved. We try to do it collectively. I try to engage the executive committee, what you see before me, in those opinions before we send them out, and we try to keep whatever we can. And if we need 19 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 expertise outside, we try to attempt to get that expertise from the outside to comply with your request.
Is it assumed, or is it the policy of assumption, which I know is always bad, that an opinion request is confidential, both in its nature as well as who the requesting party is, until there is an actual opinion developed, and then it's left to the requesting party to make the affirmative decision as to whether or not that opinion is subsequently made public?
Thank you. The Chair recognizes Councilman Clarke.
Mr. Diaz, I want to make a brief statement. I'm a ward leader and I'm 20 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 going to be up for reelection in June. The questions I am going to ask you have nothing to do with that fact. What is the status of the takeover of the Parking Authority?
The Parking Authority is presently under litigation. There is a question of jurisdiction, which is pending before the Supreme Court of the Commonwealth of Pennsylvania, and until the Commonwealth of Pennsylvania decides a jurisdictional issue, it is essentially at a stay situation in which we have a contract relationship which exists between the Parking Authority and the City and the State.
Is there anything that we can do to expedite Supreme Court's decisions?
If you have any friends up there, you can call 'em, but they -- (Laughter.)
That's facetious and I apologize for that. Obviously, the Supreme Court has its process and procedures. And they are an entity which has a separation of powers and, therefore, we 21 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 have to await the results when it is timely, as far as they're concerned. We've attempted, as much as we can, to pursue our response, and I will continue to pursue that on my level.
It's my understanding that the revenue that's collected by the Parking Authority is the City of Philadelphia's money; shouldn't that come to account as to, you know, whether or not we should actually have full control over the Authority? While I understand it was a State-created entity, the reality is that this is revenue soley generated by the City of Philadelphia.
Yeah, as I understand it, the revenue at this point is not being dissipated, but because of the agreement we have with the Parking Authority, the expenditures are flowing in the normal course as prior to the takeover.
In your mind -- you may not be the appropriate person, but I'm going to ask you --
I said, in your 22 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 mind -- you may not be the appropriate person and we probably need Mr. Dubow, but I'm on this line of questioning -- what's the financial impact on the Parking Authority takeover?
Initially -- and you're right, it's a Dubow question, but in my review, initially, the purpose was with regard to the School District's financing opportunities. At this point, it has had no impact either way.
Okay. There's been some concern raised in some of the discussion particularly around NTI and some of the other issues about the State's authority and ability to take over other authorities. I'm not going to ask you for the strategy associated with that, but do we have in fact a clear-cut strategy to circumvent any of those attempts?
We do. We will, upon Council or the Mayor's request, continue to fight in favor of the Home Rule requirements and their violation of our Home Rule Charter and local domain, and we will continue to fight in the courts, as directed by this Council and the Mayor, against any other takeovers. 23 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
Okay, one question with respects to the legislation, then I'll pass. Last year, with the support of members of Council, I passed a bill; it was called the "Gun Verification Bill," and it essentially required that an individual, upon getting a permit, would have to fill out certain information with respects to the gun that they were getting the permit for. It was a verification process on a yearly basis that will require that individual to notify the City of Philadelphia if in fact they sold that gun or somehow that gun became lost. That bill actually became law. But my understanding is it has not been enforced, and when I questioned that, I was told that a police officer, if he attempted to request that information at the time of the application process, that they can be in violation of the law. Can you first tell me what the status is of that.
I would be happy to review that, but there's always a question of whether it's a preemption and whether it's a preemption, either a State or a federal preemption with regard to 24 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 legislation that is passed. The law may be permissible with regard to the limitations, and so I would be happy to look into that. I was unaware that there was a lack of enforcement.
And, excuse me, Councilman, and I will make sure that I get a response to you in writing within the next few days.
Okay, yeah, that would be very helpful. As it relates to guns, the City of Philadelphia a's lawsuit with the gun industry, where are we at with that?
That case was taken by the litigation group of our office. The case lost in the District Court, it was in appeal in the Third Circuit, and it was also lost in the Third Circuit.
Right now, the only option is certiorari to the Supreme Court, and that probability is remote.
The possibility that 25 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 we will --
That we could be successful with certiorari to the Supreme Court.
No, we have not attempted that, but I'm saying that's remote. (Conferring with colleague.) Bill, are we doing anything with it or are we going to let it die? They're still evaluating.
Do you need some encouragement? I mean, this is a political decision that ultimately will be a legal issue, but the reality is that there is a big problem out there with these illegal guns, and I'm concerned, particularly given the current administration in Washington and their individual who his the head of the Justice Department and his love for the gun industry and the NRA, and I just think that if we're not even more aggressive on this issue that, you know, we'll really be in trouble in this city.
I will evaluate it with more 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 vigor and attempt to look at the merits. One of the benefits of serving in the federal government is that I've had to take cases before the Supreme Court, and sometimes, it's not to our benefit, but I will evaluate it with a lot more vigor.
I'm going to ask you this question one more time: Do you need some encouragement?
All right. And from the Mayor? Do you know if the Mayor --
Okay, I have one last question. With respects to outside counsel fees, and I know Councilman Ortiz touched on this, can you talk to me about the criteria associated with outside counsel fees; how do we determine who gets what?
My understanding is that it's based upon a percentage which is 20 percent less 27 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 than usually their going rates but with a cap of about $200 for outside counsel, and it may vary from 150 to $200.
Okay. And, Councilman, I know you asked that question but I didn't quite hear the response with respects to the outside legal counsel; did you ask for a breakdown across the board?
All right, and that information will be provided to the Council President?
The expenditures, though, for this past year was about 8.5, 8.7 million, and they exceeded the budget, and there is a request for a transfer ordinance, which you will be hearing, which will request a change of $3.7 million, and apparently, the cost was complicated as a result of related legal issues like the School District, the stadiums and the Parking Authority and other significant cases. The interesting thing, though, is that of 28 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 the amount spent on the stadium, which is about $866,000, most of that will be recoverable through the bond sales, so it won't be a washout, but it will show as an expenditure to the Law Department.
Welcome to the City Council and probably the politest and nicest session you will endure with City Council. From here on in, the circumstances sometimes change. Now, I want to deal with what I regard as a basic issue that causes conflict between the City Council and the City Solicitor. The Home Rule Charter says you are both the lawyer for the Mayor and for the City Council, and if you read the newspapers, you will learn that we're supposed to be involved in some bitter battle with the Mayor. How do you deal with that situation when a legal situation comes up and you are the lawyer on both sides?
I have had a personal relationship with many of you, including you, Councilman Cohen, and I would hope that you would 29 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 understand that, one, I understand the separation of powers, having been on the bench and understanding the fact that I also have a separation-of-powers conflict with regard to when I became administrative judge in dividing up some of the responsibilities; i.e., the legislature, the City Council, and the court system. It is my belief that if you are not satisfied with the advice that I give, that if the Council by resolution asks for outside counsel, I will do that; I will seek outside counsel to make sure that you are confident and comfortable, and I will seek outside counsel of your choice. First. Secondly --
Let me ask you this specific question: If the issue comes up, for example, we had a hearing on bills today in the Rules Committee involving the School District, which touched on the question of the new State Reform Control Commission's alleged control of the School District. If asked -- if we passed the bill 23 and you stated in your testimony you would give Council the presumption of legality except if it's very, very clear that it's illegal. 30 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
No, I won't do that unless you ask me, unless you ask me to make a determination on the legality of a statute, I will not in any way opine.
Given an opinion. And that's the opinion and you will give an opinion -- would you give an opinion without hearing the arguments of either side first?
I will look at the legislation, I will look at what you have proposed, and then we will review not only the City Charter but the State Constitution and then make a determination on whether or not it violates any of those provisions, and there are also endemic provisions that relate to both the executive and the legislative body.
Well, the most aggravating experience this Council has, I believe, is if we pass a bill and the Mayor either lets it become law, signs it, or vetoes it but the veto is 31 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 overwritten so that the bill is enacted into law, and then the City Solicitor rules that the bill is ineffective because it's illegal. In the Council, we counsel that a "super veto," because then the City Solicitor has abrogated to himself powers greater than either the Mayor or the Council has.
Well, the City Charter, Mr. Councilman, gives that power to the City Solicitor to opine on whether or not there is a violation or a constitutional defect on a legal bill, and I will only do so at either your request, meaning the Council's request, or at the Mayor's request. Otherwise, I'll presume that it is legal.
Well, that's not much assurance because the request would come from the Mayor. If we override a veto -- for example, the NTI law became law yesterday. The Council passed the bill, the Mayor did not veto it, he did not sign it, it became law without his signature. But there have been indications that the Mayor believes that the bill is illegal or may be illegal. That's the case in point.
And we believe that 32 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 that bill is enacted in the law and represents the law of the City today.
He has not asked, nor has the Council asked, me to opine on its legality. The questions and the issues have been -- and the participation of our office has been in the drafting of the legislation and the components of the drafting of the legislation. If I am asked to make a determination, I will, based again on the separation of powers and the constitutionality of the bill. And I have not been asked. As I indicated to you, some of our folks go directly to some of our lawyers, get some advice, and then decide that that advice is all they need or want. If you want me to determine its legality, I need that request.
Well, why would we want to if we believed it's legal and we passed the bill? We wouldn't pass the bill if we believed the bill was illegal.
That's why I haven't opined, 'cause no one has made that request.
So the request would have to, as a practical matter, come from the Mayor 33 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 and --
The Mayor or the City Council, and they would both get the same decision.
See, like Darrell Clarke, I'm a Democratic ward leader, and in my very early days, late in the '60s, the Mayor of the City was also a ward leader, and there was a day when a there was a Democratic City meeting of the Democratic ward leaders where we were discussing various issues related politically to the City. Some question came up with respect to the legality of something, and the then-mayor said, "Well, I'll get the City Solicitor to write an opinion saying it's legal." And somebody said, "Well, how can you say what the City Solicitor will do?" (Laughter.)
And the Mayor just laughed and said, "The City Solicitor will do it or it will be another City Solicitor the next day."
That may happen to me also, Councilman. They may seek another City Solicitor 34 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 if they disagree with my opinions, but I commit to you and promise that I will call them as I see them, which is what happened on the bench. Even though I happen to be heavily involved in Democratic politics, when a Republican issue came before the court, they all felt, and they so expressed, that they had a fair shake in my courtroom.
Well, all right. Let's assume I still have my doubts later on, but we'll say the jury's out on that question, but it would be a wonderful thing to have a City Solicitor to rule the way we hope you will rule in the future and respect the rights of your two clients. But isn't there really an inherent conflict of interest in the Home Rule Charter as it's written?
There may be on occasion, depending on the occasion. For example, I have offered to you that if you feel that there is an opinion in which you would like to get a second opinion, I will be happy, upon resolution of the Council, to seek advice outside of the City Solicitor's Office. 35 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
What would your feeling be about an amendment to the Home Rule Charter that would separate the City Solicitor and make the City Solicitor the lawyer for the Mayor and provide for a separate solicitor for the City Council?
As an advocate for more lawyers, I would welcome the fact that if you had more legal officers in the City Council, as we have throughout the City, so the separation within the Charter would not in any way bother me if there was a charter amendment. I'm an advocate of having lawyers earn and provide and participate in public service.
I didn't say that. I said that I would favor having more lawyers around, and if the Charter so was amended, I could live with it.
And it would certainly make impossible the arise of a conflict-of- interest question.
It would also limit your influence over the City Solicitor if it was broken up that way. Right now, you have tremendous 36 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 influence over the City Solicitor. You could disapprove my appointment, for example
Well, we'll find that out after today, but we're going to take you on your word, and you will be the City Solicitor, and I think that's very clear to you and to everybody else, but we'll find out later not about your intentions; we know they're good, we know your family, we know your wife, we deeply respect her and miss her terribly not being present in the City Council Let me ask you the last question which I've never gotten an answer to: How do you relate to individual Council members? Are you my personal lawyer on business that I handle as a City Councilman?
I am the lawyer of the City Council, the body and, therefore, I would give you advice, but if there is issues that pertain to the body, the body controls. You know, the old adage that the majority controls? The majority controls my destiny also -- on every issue, on every advice, and on every request.
Well, I wish you a good 37 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 term and an interesting term -- interesting it will clearly, that I think we can (inaudible) for you. Congratulations.
Thank you. The Chair recognizes Councilwoman Miller.
You know, I, too, have had a good working relationship with you prior to coming to City Council with my former employer, State Representative David Richardson. I've enjoyed working with you and look forward to it.
He was one of my heroes, as you know. And as a result, two years ago, I moved into your district, after living in four or five other different districts. I moved out of Councilman Clarke's district into Councilwoman Miller's district.
Welcome to the 8th Councilmatic District. Okay, I do have a couple questions I want 38 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 to ask, particularly one. It troubles me when I read the newspaper and see where, you know, taxpayers have to pay $125,000 and, in fact, with several beatings at the prison, it's more than a half a million dollars that we've had to put out. And I was wondering, does the Law Department play any role in the training of correctional officers so that they understand the legal ramifications. Financial ramifications of their actions as it relates to abusing prisoners?
I know we monitor, through Leon King, many of the prison-population expenditures and programs that are run up in the prison as a result of Judge Shapiro's oversight over the court system. We also are involved in evaluations of the services that are provided. With regard to the training process, I know that we participate both in the police training at the Academy, and we participate in some activities up at the prison, but I am not certain with specificity what that is.
Well, I would hope that this is an area that you would look into and figure out a way that the Law Department or 39 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 somebody can really explain to the correctional officers what they're costing the City. I would have loved to have seen that money go towards buying books or computers for schools rather than to go pay a convicted felon for a suit because he was abused.
Madam Councilwoman, I am aware that after there were some problems, as you know, up in the prisons, that we did some sexual- harassment training as a result of some obviously public issues that occurred there. So we have done training in the past, and I will make sure that we respond to you as to whether or not there are particular areas and issues that we feel that we can participate in.
Okay. One other quick question and this relates to NTI, and I was glad to hear you mention some of the Law Department's involvement in NTI. In my Council district, we have a problem and we need legal assistance with cleaning up a number of environmental sites, and the current owners are dissolved or corporations that are dissolved or otherwise long-gone, and we need legal help to move 40 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 through the courts to remediate some of these former industrial properties so we can clean them up. So that's an area that we'd like you to, you know, prioritize in your office, 'cause with NTI, that's really a big problem.
What we can do immediately is talk to our EPA lawyers to try to figure out whether or not there is an issue of contamination that we can get also the feds to come in and assist us in the remediation issue, so I will have our EPA folks contact your office.
All right. Council President, I want to yield to Councilman Clarke.
The Councilwoman yielded to me and I just wanted to wait until you...
I'm sorry, I 41 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 didn't hear you.
I had something to say, and the Councilwoman yielded to me.
I'd like to make a motion that we recess this public hearing temporarily and move to a public meeting for the purpose of an administrative motion. (Duly seconded.)
It has been moved and seconded that the hearing be recessed to a public meeting. All in favor will signify by --
All will signify by saying aye. Those opposed? The ayes have it. Can we have a roll-call vote, please. Do we have a list? 42 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 Councilwoman Blackwell?
Councilman 43 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 O'Neill?
Councilwoman Blondell -- 44 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
On the approval of the resolution, wasn't that it?
Yes. (Unintelligible; Council members talking over each other.)
I made a motion that we temporarily recess the public hearing for the purpose of an administrative motion. That was seconded and we were in the midst of taking -- 45 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672
I thought we were voting on the confirmation. (Unintelligible; Council members talking over each other.)
I mean, just in my humble opinion, Mr. Diaz is here as a courtesy to us. He has given testimony, we all admire him and want to support him and want to vote for him. This type of maneuver in the midst of his confirmation hearing and potential vote is totally out of order, I believe, and totally insulting to Mr. Diaz. I wish we could simple --
May I finish my point, please? Thank you. I would ask the Chair to allow us, if we're going to vote on Mr. Diaz's appointment, which I am very ready to do, that we do so without embroiling him in some maneuver. Thank you.
Yes, the Chair 46 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 recognizes Councilman Goode.
Councilman Kenney's issue that he raised was not a point of order.
Point of order again. I'm waiting for the Chair's ruling on my point of order.
As opposed to individual Council members ruling on my point of order.
As a matter of procedure, you were going to move from a public hearing into a public meeting. Councilman Mariano asked that we hae a roll call on the movement from a public hearing into a public meeting for the purpose of entertaining this motion.
There was a motion on the floor to consider whether to move from a public hearing into a public meeting to entertain this 47 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 motion that's been distributed to members of Council that -- and I'm calling for the previous question of --
Point of order, Madam Chair. (Unintelligible; Council members talking over each other.)
That is a point of order because there was a previous question --
Point of order. There was a confirmation hearing going on and --
The point of order is that the original -- (Striking of gavel.)
We have a confirmation going on and when you move to move from a public hearing to a public meeting, it usually means to vote on the hearing that you're currently holding.
But if there are nine 48 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 people -- if there are nine people who are -- (Unintelligible; Council 0members talking over each other.)
And to present a resolution and put it on my desk at this point with an issue that was decided yesterday by the Mayor --
If the Chair is going to entertain a motion -- (Unintelligible; Council members talking over each other.)
I respectfully apologize to Mr. Diaz also, but we have business that we need to take care of.
Councilman Clarke, the purpose of your motion was so that we could consider the resolution.
No, Council President, 49 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 that was not the purpose of --
The purpose was to recess temporarily this public hearing and go into a public meeting. I did not indicate --
And for the purpose of the public meeting would be, I assume, to consider the resolution.
The purpose of that was to present a motion that required a scheduling of a hearing on Bill No. 010529 so Council can promptly consider amendments in order to adopt a compromised redistricting plan.
We don't have a copy of that motion. And this is -- I thought you were referring to the bill that we were -- the resolution that we were considering.
Madam Chair, there was a point of order as to procedure. I think the 50 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 introduction of resolutions -- and I'd like Rick and the parliamentary to judge on this. I think the passing of -- the introduction of resolutions are done within a scheduled Council hearing. This is not a scheduled Council hearing; this is a hearing on, one, the confirmation of Mr. Diaz and on the tax plan of Mr. Saidel. Resolutions, bills, and ordinances are introduced within scheduled Council hearings. There will be a scheduled Council hearing on Tuesday. At that point, we will take on the issue to either override or to not override the veto of the redistricting issue, and then we should be able to take on the issue of introduction of new bills to be able to deal with redistricting.
Madam President, respectfully, I did not introduce a resolution; I made a motion on the floor. This is a Committee of the Whole. Based on the laws of Council, I am able to do that. This is not a resolution that is required to be circulated 24 hours before this particular Committee of the Whole. 51 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 (Unintelligible; Council members talking over each other.)
This is a motion on the floor that was duly seconded. We had a voice vote, we have now requested a roll-call vote.
I didn't hear the exact words. (Unintelligible; Council members talking over each other.)
I assumed the motion was a motion to go into the public meeting. That's what --
I assumed that it was for the purpose of considering the resolution of confirmation, and I'm sorry that I was distracted.
We can't hae a committee hearing unless it's been advertised in advance.
That's not true, 52 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 Councilman. A member can make a motion at any time in a public hearing.
Can I have a point of information, please. Could any of the members make reference -- there's been reference made to the rules. Can someone point out what particular rule they're talking about with regard to this proposed procedure? It would be helpful if we could just read it. What is the --
Councilman, it is a right of a member to make a motion in the Committee of the Whole in a public hearing.
I understand that, Councilman, I'm not disputing that. I'm just asking, could someone point out to me in the rules the issue that's being raised and the procedure that's being utilized. I'd just like to understand that.
Well, I'm not raising that issue and then I have to talk to other Council members.
Can someone point out 53 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 the -- or could you, Councilman, point out in the rules what it is that you're referring to by way of the making of the motion in the Committee of the Whole. What rule is being utilized?
Councilman, I made a motion; I am able to make a motion in the Committee of the Whole.
If other Councilmembers question that motion, it is there responsibility to -- COUNCILMAN NUTTER? What was the motion?
I apologize. I was not here for the motion, and when I came in, I thought we were voting on the Solicitor. What was the motion?
There's a point of order on the floor. 54 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 Councilman Goode?
Madam President, I have infinite confidence in your ability to maintain order in this Council, and I was making a point of order. I think where we're at is where you said, Let's move into a public meeting from a public hearing.
But I assumed that it was regarding the resolution for Mr. Diaz that we were considering.
At that point, Councilman Mariano said, Let's hae a roll call. If someone wants to clarify his motion or he wants to clarify his motion that we move into a public meeting from a public hearing for the purpose of entertaining this motion, not a resolution, but his motion, that's fine. If someone wants to make a motion again, I'll make a motion that we move from a public hearing to a public meeting for the purpose of entertaining his motion that's been distributed to all members of Council that are present if someone will second it. (Duly seconded.)
And having been moved 55 1/30/02 COMMITTEE OF THE WHOLE - RES. 010672 and seconded, the issue is whether you want to call for a question a roll-call vote on whether we will move from a public hearing into a public meeting to entertain this motion. There are nine people, as their signatures indicate, that want to move into a public meeting from a public hearing, that's that.
Councilman Clarke, can I see you please. (Councilmembers confer privately among themselves off the record.) - - - 56 1/30/02 - WHOLE - PUBLIC MEETING (Striking of gavel.)
We are now back into our public meeting. Someone wants to be recognized? The Chair recognizes Councilman Nutter
Thank you, Madam President. Madam President, I've had an opportunity to talk with Councilman Clarke about the issue at hand and the concern about having a hearing scheduled on a particular bill. By way of the conversation between myself and the Councilman, and I think there's still good faith between the two of us, Madam President, I am asking if you would make an announcement with regard to the scheduling of a hearing on Thursday, February, 7th, at 10 o'clock a.m. here in Council chambers with regard to Bill 19 No. 010529; and further ask that you would direct the Chief Clerk and any other parties to take the necessary steps to schedule such a hearing. And it's my understanding, Madam President, that with your making that announcement in the hearing, based upon that announcement, Councilman Clarke will have some comments 57 1/30/02 - WHOLE - PUBLIC MEETING subsequent to your announcement.
Thank you. We did have this discussion earlier, and I have just asked for our formal request list for a public hearing that Bill No. 010529 will be scheduled for a public hearing on Thursday, February 7th, at a.m. It is being delivered to 9 the Chief Clerk. 10
Madam President, thank you ery much. And may I say, I'd like to, first of all, apologize to Mr. Diaz for his discomfort during all of this. As you know in this particular chamber, there has been numerous times when things didn't go necessarily as scripted, and I just want to reiterate to you, Madam Council President, that there was no intention to embarrass neither you or this illustrious body, and want to thank you for that. And I also would like to formally withdraw the motion that I had put on the floor earlier.
Thank you very much. Anyone else have any statements? 58 1/30/02 - WHOLE - PUBLIC MEETING (No response.)
Seeing none, this concludes our public meeting. We will now return to our public hearing regarding Resolution 6 No. 010672. - - - 59 1/30/02 - WHOLE - PUBLIC MEETING Mr. Diaz, I apologize to you from the bottom of my heart. I am sorry that this all had to happen while you were testifying. So if you will continue, I believe there -- were there any other -- I believe there were other lights on at the time, and people were not recognized to ask questions or make comments of Mr. Diaz. Does anyone have any questions or comments?
Excuse me. I believe Councilwoman Blackwell, your light's not on either.
Thank you, Madam President. I would like to say that I have known and worked with Mr. Diaz for more years than I suppose either of us can remember -- certainly Lucien Blackwell before me. We commend him for not only the work that he did in Washington with HUD, but 60 1/30/02 - WHOLE - PUBLIC MEETING for the work that he has done throughout the City for the total community, the Latino community, the African-American community, and the total community. His has been a lifetime of service and it does us great. It is an honor for us to be a part of his confirmation hearing today and we look forward to working with him in eery way. Thank you.
Thank you. The Chair recognizes Councilman Ortiz.
Madam Chair, I move that we confirm Nelson Diaz as City Solicitor. (Duly seconded.)
All in favor will say aye. Those opposed? The ayes have it and confirmation has been voted on. (Standing ovation.)
Resolution No. 23 (inaudible) will be continued to another date, so this concludes the public hearing of the Committee of the Whole. Thank you all very much. 61 1/30/02 - WHOLE - PUBLIC MEETING (Proceeding ends at 4:12 p.m.) - - - 62 CERTIFICATE I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia's meeting of the Council Committee of Wednesday, January 30, 2002, are contained fully and accurately in the stenographic notes taken by me upon, and that this is a true and correct transcript of same. RE: Resolution No. 010672 _______________________________, Josephine Cardillo Registered Professional Reporter and Notary Public (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.)