COUNCIL OF THE CITY OF PHILADELPHIA2 COMMITTEE ON LABOR AND CIVIL SERVICE - - - Room 400, City Hall Philadelphia, Pennsylvania5 Thursday, May 14, 2009, 2:22 p.m. - - - Bill No. 090292 - An ordinance amending Section 17-107 of the Philadelphia Code, entitled10 "Contractors: Labor-Management Relationships," by amending the definitions of "City Work" and11 "Service Contracts" to include certain subcontracts for nonprofessional services, all12 under certain terms and conditions. COMMITTEE MEMBERS PRESENT:15 Bill Green, Chair, Chair16 W. Wilson Goode, Jr., Vice Chair Frank DiCicco17 William K. Greenlee Curtis Jones, Jr.18 James F. Kenney Maria D. Quiñones-Sanchez19 - - - V A R A L L O Incorporated Litigation Support Specialists23 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 1910324 215.561.2220 215.567.2670 2 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021
Good2 afternoon. The Committee on Labor and3 Civil Service hearing on Bill No. 0902924 is in session.5 Present are Councilmembers:6 Councilwoman Quiñones-Sanchez, Councilman7 Bill Greenlee, Councilman Wilson Goode,8 Councilman Frank DiCicco, and Councilman9 Jim Kenney.10 Will the clerk please read the11 bill into the record.12
Bill No. 090202, an13 ordinance amending Section 17-107 of the14 Philadelphia Code, entitled "Contractors:15 Labor-Management Relationships," by16 amending the definitions of "City Work"17 and "Service Contracts" to include certain18 subcontracts for nonprofessional services,19 all under certain terms and conditions.20
Before we21 begin, would Councilwoman Sanchez like to22 say anything on the matter?23
Thank24 you, Chairman.25 3 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 I just briefly wanted to say2 that our intent here is to address an3 issue and, as a council, be consistent in4 our goals of providing access on the5 contracting side and also ensuring that we6 are abiding by the laws that we've passed7 around living wage and fairness to the8 workers who directly or indirectly provide9 service for city government.10 And this is really to close that11 loophole so that we, as a body, remain12 consistent in what has been a historic13 support for not only labor relations but14 in our ability to ensure that we are using15 our financial money and supporting16 policies and practice that are consistent17 with our goal of everybody's ability to18 earn a living wage.19 So thank you.20 (Applause.)21
I'm going to22 call our first witness, Natalia Salgado,23 from SEIU. And I see that she's being24 accompanied by Jeff Hornstein.25 4 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 (Witnesses come forward.)2
Good afternoon.3 I'm going to be reading a statement on4 behalf of Wayne MacManiman, who was unable5 to be here today.6 My name is Wayne MacManiman --7
)15 My name is William MacManiman,16 and I am the District Leader for SEIU17 Local 32BJ, the largest union of property18 service workers in the United States. 2 090202 -- 292, actually. 15 For many years, since the 1950s,16 the building and construction trades have17 had wage and benefit protection for men18 and women who do the demanding work for19 their industries. 9 Led in large part by Councilman10 Kenney, that that bill passed on May 10,11 2007, by a unanimous vote. 13 For the first time, the largely14 African-American building-service15 workforce gained wage and benefit16 protections under the City's prevailing-17 wage law. 65 an hour and no meaningful benefits23 in 2006. 8 In March of 2009, we discovered9 an unintended loophole in the prevailing-10 wage law. The language on service11 contracts failed to specify that12 nonprofessional services performed under13 the terms of professional service14 contracts ought to be covered by15 prevailing-wage provisions. 11 As you will hear, Officer12 Tadlock say, this legalistic language has13 really human consequences. 02, with17 health coverage, to $9 an hour, with no18 benefits; take it or leave it. In these19 tough economic times, who can blame them20 for taking a 46 percent pay cut. "24 Needless to say, as the leader25 9 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 of our union, which has fought long and2 hard to raise these jobs out of poverty, I3 was outraged. I asked my staff, isn't4 this work covered by prevailing wage? 13 No. 3 I know in this time of fiscal4 crisis, some of you are thinking, What is5 this going to cost the City? 11 And we can look at this from12 another perspective. What will it cost13 these hardworking men and women who fall14 back into poverty? Our researchers15 crunched some numbers and they calculated16 that it will cost the Commonwealth over17 $29,000 a year for income support, food18 stamps, and health insurance for each19 family. 23 It's far more rational and24 cost-effective to have a decent wage at25 11 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 the front end than to pay the economic2 cost of poverty. 4 Bill No. 009292 was introduced5 on April 16, 2009, and it is designed to6 close a loophole. Please vote yes on Bill7 No. 090292. 14
Thank you for15 your testimony.16 Mr. Hornstein, are you going to17 testify?18
I'm just here to19 answer any questions that might come up.20
Does anyone21 have any questions for these witnesses?22 (No questions.)23
)4 DEP. SOLICITOR FEDER: Thank5 you, Mr. 6 Good afternoon, Chairman Green7 and members of the Committee. 13 This bill would extend14 prevailing-wage requirements to certain15 subcontracts on City professional services16 contracts. 21 Council traditionally has22 exercised power to impose qualifications23 on bidders for sealed-bid contracts --24 typically, public-works contracts, but25 13 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 also others services contracts that are2 not professional-services contracts. 9 The Law Department has never10 expressed a view one way or the other on11 this Council power, but it has been12 exercised since the inception of the13 Charter, and there's no reason to question14 it today. 16 The Charter on the17 Administration's ability to contract for18 professional services. 2 By no means, however, did the3 Charter leave Council out of the4 contracting process entirely. 19 The requirements of this20 ordinance that certain professional-21 services contracts must contain a22 provision requiring that nonprofessional23 contractors be paid a prevailing wage can24 be looked at as either a substantive25 15 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 control over the content of the2 professional-services contract itself or a3 substantive direction as to who can and4 cannot be selected as a professional-5 services provider. 18 Bill No. 090292, however,19 effectively imposes a new eligibility20 requirement for City professional-services21 contracts: Namely, the contractor must22 agree to pay its nonprofessional23 subcontractors the prevailing wage. 10 Council's desire to see that11 City funds are used in a manner consistent12 with City policy to ensure that workers13 are given a decent wage and decent14 benefits is a laudable desire with which15 few can quarrel. 25 17 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 That conclude my testimony. 4
Thank you,7 Mr. Chairman.8 Good afternoon, Mr. Feder.9 DEP. SOLICITOR FEDER: Good10 afternoon, Councilman.11
Mr. Feder, I12 guess the first question is: Why is the13 Law Department testifying rather than the14 Office of Labor Standards?15 DEP. SOLICITOR FEDER: I can16 only speak to why the Law Department is17 testifying, and that's because we thought18 it's appropriate for the Council to be19 aware of the legal impediments to20 implementing this bill.21
To some22 extent, that is usually done through the23 forwarding of a legal opinion, not24 necessarily through testimony. Don't you25 18 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 think it's appropriate that the Office of2 Labor Standards testify?3 DEP. SOLICITOR FEDER: I -- I4 cannot possibly answer that question,5 Councilman.6
Okay. Well,7 the next question is: You don't believe8 that it's legal for Council to offer this9 type of legislation but it would be legal10 for the Mayor to introduce this11 legislation?12 DEP. SOLICITOR FEDER: I --13
The Mayor14 could send the same bill to Council and15 have it enacted; is that not true?16 DEP. SOLICITOR FEDER: No, the17 Mayor could put these prevailing-wage18 requirements into certain City contracts19 if he felt it was appropriate, balancing20 all factors.21 But whether the Mayor proposes22 the bill or a Councilmember proposes the23 bill, Council, in our view, would not have24 the power to enact and enforce the bill,25 19 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 regardless of who sent the bill to the2 floor.3
So it's your4 testimony that it would be illegal for the5 Mayor to send this exact, same bill to6 Council?7 DEP. SOLICITOR FEDER: It is8 never illegal for a mayor to send the9 bill, nor is it illegal for a councilwoman10 to sponsor a bill. It would only be11 illegal -- it is not within Council's12 power, if the bill were passed, to impose13 the requirement.14
So what15 you're saying is that the requirement16 could be implemented by the Mayor, without17 legislation.18 DEP. SOLICITOR FEDER: Yes, sir.19
Okay. Are20 you familiar with the Living Wage Advisory21 Committee?22 DEP. SOLICITOR FEDER: Not23 directly, no.24
Well --25 20 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 DEP. SOLICITOR FEDER: No.2
Well, that's3 interesting. You are familiar with the4 Philadelphia Minimum Wage Ordinance.5 DEP. SOLICITOR FEDER:6 Certainly, yes.7
There was a8 provision within it that a Living Wage9 Advisory Committee be established through10 resolution by Council, which it was, and11 it was to be convened by the Office of12 Labor Standards.13 The Street Administration14 refused to have that Living Wage Advisory15 Committee convene. The Nutter16 Administration has been silent in the17 matter, although I have pushed and pushed18 and pushed that that Living Wage Advisory19 Committee be established.20 If that Living Wage Advisory21 Committee was established and made a22 recommendation to the Office of Labor23 Standards and to the Mayor's Office, then24 perhaps something like this bill would not25 21 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 be necessary.2 So I guess my last question is:3 Is the Administration and the previous4 administration actually violating the5 Philadelphia Minimum Wage Standard6 Ordinance by not convening the7 Philadelphia Living Wage Advisory8 Committee?9 DEP. SOLICITOR FEDER: My10 recollection is that the Law Department11 advised Council and the Mayor on that bill12 that Council doesn't have the power under13 the Charter to establish committees.14 Again, the Mayor would be15 certainly within his power to convene his16 own advisory commission, and the Council17 would be free to develop and hire and18 establish its own committee, but Council19 can't tell the Administration to form its20 own advisory commissions.21
So your22 testimony is that the Street23 Administration and the Nutter24 Administration did not convene a Living25 22 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 Wage Advisory Committee simply because2 they did not have to?3 DEP. SOLICITOR FEDER: I know4 nothing about the specifics as to whether5 a committee was or wasn't or why it6 wasn't.7 I can only tell you, as a legal8 matter, we would tell the administration9 that they're not required to do so.10 Council can't impose that requirement;11 that would be a voluntary decision by the12 Administration.13 I was not involved in any of the14 discussions about the decision.15
Thank you,20 Mr. Chair.21 And, Mr. Feder, good afternoon.22 And I guess, first of all, I'm not an23 attorney, so I'm not going to get into a24 legal debate about Council's powers,25 23 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 although it seems like numerous times,2 we've been told that Council doesn't have3 the power; yet, in the end, through courts4 or whatever, we have prevailed, so I'll5 just leave it at that.6 And I'll -- I know there's7 some -- a legal opinion from City Council8 that, I think, takes some issue with your9 positions, and I'll let either the10 Chairman or somebody else debate that.11 I guess my feeling -- and maybe12 you're not the right one to really address13 this to, but you're here for the14 Administration, and I don't know if15 Dr. Schwarz is going to testify or not,16 but --17 DEP. SOLICITOR FEDER:18 Dr. Schwarz is available for questions.19
Okay.20 DEP. SOLICITOR FEDER: And has21 prepared testimony.22 COUNCILMAN GREENLEE:23 (Addressing Chairman Green.) I don't know24 if it's the time to bring him up or25 24 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 however you want to do it.2 I -- but I'll quote your3 position here -- or your statement, I'm4 sorry.5 "Council's desire to see the6 City funds used in a manner consistent7 with City policy to ensure that workers8 are given a decent wage and decent9 benefits is a laudable desire with which10 few can quarrel."11 We don't quarrel with that; why12 are you quarreling with us?13 DEP. SOLICITOR FEDER: I think,14 fairly read, that statement suggests that15 nobody could possibly object to the goal16 in a world of unlimited resources.17 I imagine the Administration --18
Okay.19 Well, you didn't put "unlimited resources"20 in there.21 DEP. SOLICITOR FEDER: But --22 okay.23
All right.24 I guess what --25 25 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 (Addressing Chairman Green.)2 Could we call Dr. Schwarz up now? Is that3 appropriate, Mr. Chairman? Or how do you4 want to do this?5
Donald11 Schwartz. I am Deputy Mayor for Health12 and Opportunity.13
Thank you,14 Mr. Chairman.15 Good afternoon, Dr. Schwarz.16 DEP.
You know,19 my problem with this is, I guess we can20 always find legal reasons not to do21 something, and that's why I didn't want to22 get into a debate with Mr. Feder.23 But my real problem with this24 is, I think one thing government -- and25 26 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 I'm not trying to lecture you, but it --2 one thing we're supposed to be doing is3 looking for fairness.4 Can you, in all honesty, argue5 that what happened to these workers and6 what could happen to other workers is7 fair?8 DEP.
I'm very9 much aware of the City's financial10 situation.11
And I don't13 think that situation leads itself to fair14 decisions for many people in Philadelphia15 because the recession itself isn't fair.16 So, if it's a question of17 fairness, I'm not sure really what18 standard we use.19
Well, it20 seems to me when somebody gets knocked21 down in pay and benefits that much, it22 just seems something -- and the government23 is involved, and we're involved. I mean,24 there might be, again, a legal way to try25 27 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 to say we're one step removed, but we're2 involved, okay? Those people worked, you3 know, in a City facility.4 That is a considerable -- you're5 making a considerable -- or by not doing6 something, you're allowing a considerable7 negative impact on people. And,8 obviously, we're all well aware of the9 budget problems of the City. We just went10 through a number of months dealing with11 that.12 But to put that kind of burden13 on people and make 'em make the decision14 whether they take -- I think Natalia said15 a 46, you know, percent cut or something16 like that. I don't think we could just17 sit by, Doctor and just say, Ah, the18 world's not a fair place. I think it's19 government's job to make it fairer,20 anyway.21 And, again, I'm not trying to22 lecture you, you know. I think probably,23 deep down, I'm guessing you might agree24 with me.25 28 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 But it's just -- I guess I have2 a problem with the Administration coming3 in here and taking a legal way of not4 doing something, you know?5 I guess I would almost rather6 hear you say, "We just don't agree and7 we're not going to do it" instead of8 trying to tell us we don't have the legal9 right to do it and that's the reason it's10 not getting done. You know, if -- if you11 could do it, then you guys do it, somebody12 do it.13 But, again, it just frustrates14 me from the first day I heard this, and15 that's why I was happy to cosponsor16 Councilwoman Sanchez's bill. It just17 seems like this was just totally wrong.18 And when something's totally wrong, you19 got to do something about it, however we20 do it -- we do it through a bill, we do it21 through Administration action.22 But don't hide -- with all due23 respect, Mr. Feder, don't hide behind some24 legal technicality that could be quarreled25 29 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 anyway. Let's just say we're going to do2 it or we're not going to do it. And then3 we'll -- I guess we could argue about it.4 And I --5 (Applause.)6
Speaking not7 as a legal matter but speaking for the8 Administration, do you agree that we9 should pay a living wage to everybody who10 works in a City facility, Dr. Schwarz?11 DEP.
I believe12 that, under ideal circumstances,13 absolutely.14
So your --15 but it's your position that it's not an16 ideal circumstance, and so, we can take17 these people from an effective salary of18 $34,000 a year and pay them -- I don't19 know what percentage this relates to the20 poverty level, but it's probably right at21 it, pay them $18,000 a year, which is what22 we're talking about, okay, to work 40-hour23 weeks side-by-side with people who are24 City employees.25 30 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 Do you think that that's2 responsible?3 DEP.
I know that4 within the City of Philadelphia, we have5 many people who are employed at minimum6 wage. And if you're asking my personal7 opinion of whether or not minimum wage is8 fair --9
I'm not10 asking about private employers; I'm asking11 about the City of Philadelphia and the12 Nutter Administration.13 DEP.
Do you think15 that we should be paying people $9 an16 hour, with no benefits?17 DEP.
I believe18 that we laid off a large number of City19 workers, we have cut contracts across the20 board, and we're trying to be responsible21 and live within a budget which isn't fair.22
There was a23 woman -- and I forget her name, I used to24 know it -- who testified at Temple, when25 31 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 Councilwoman Quiñones-Sanchez and2 Councilman Clarke brought Council out3 there for public hearings, and her4 testimony is maybe something the5 Administration should keep in mind today.6 She said, you know, the people7 can contribute a lot. We can share the8 pain, but don't balance your budget on the9 little backs. That's what she said.10 (Applause.)11
Thank you,14 Mr. Chairman.15 Mr. Feder, in the City Code,16 what section of the City Code governs17 prevailing wage?18 DEP. SOLICITOR FEDER: Section19 17-107, Councilman.20
And when was21 that section of the City Code introduced22 and by whom?23
In the 1950s, by24 City Council.25 32 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021
By City2 Council.3 DEP. SOLICITOR FEDER: Well, I4 don't know whether it was proposed by5 Council or the Mayor, but it was enacted6 by the Council.7
I'll try it8 again. You said 1952, right round the9 Charter?10
And it was13 enacted by City Council.14 And under that code, what are15 the categories of purchase that we can16 enter into as a city, categories of17 purchase?18 DEP. SOLICITOR FEDER: Under the19 prevailing-wage ordinance --20
No, under21 contracting out for services, what are the22 sections? Is there -- there's23 construction, right?24 DEP. SOLICITOR FEDER: There's25 33 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 public works contracts.2
And supplies.6 And then there's professional services.7 DEP. SOLICITOR FEDER: Yes, yes,8 sir.9
And of those10 categories, do all of them have prime and11 subcontractors?12 DEP. SOLICITOR FEDER: I'm sure13 they do.14
They do. Do15 the laws that are governed by a prime16 contractor, when it comes to the BOCA17 Code, are they subject to the same18 scrutiny by the subs -- as a municipality,19 do we look at the subs to hold to the BOCA20 Code?21 DEP. SOLICITOR FEDER: I'm not22 familiar with the BOCA Code, Councilman.23 I'm sorry.24
The BOCA Code25 34 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 is the construction guidelines by L&I by2 which we're allowed to do construction and3 other kinds of electrical, plumbing. So4 there's a book of codes.5 DEP. SOLICITOR FEDER: Well,6 that certainly applies to all contractors7 in the City -- contractors of the City,8 private contractors, subs, primes, for9 sure.10
So can you11 explain to me why that pass-through for12 certain parts of our legal requirements do13 not pass through to subs when it comes to14 prevailing wage?15 DEP. SOLICITOR FEDER: The16 construction codes apply to all17 contractors in the -- all workers -- all18 construction activity in the City,19 regardless whether it's City-funded or20 private contract. It's an exercise of21 Council's police power to regulate the22 general public. We want to make sure that23 nobody builds a building in the City that24 is unsafe.25 35 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 The prevailing-wage rules2 Council has chosen over the years are not3 to apply to all City employers, but it is4 limited to a very -- a narrow slice, only5 contractors -- contracts funded by the6 City, effectively.7
And when Council9 operates in that narrow area of regulating10 the City's own contracting processes, the11 Charter, in our view, limits where Council12 can draw the line.13 If Council wished to impose a14 prevailing-wage rule for all City15 employees or all building-service people,16 all security people in all private17 contracts of the City, we believe that's18 likely within Council's power, but that's19 not what this bill does.20
So let me ask21 you a question. So it is within Council's22 power to have prevailing wage apply to23 professional services if it passes an24 ordinance to do so?25 36 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 DEP. SOLICITOR FEDER: If2 Council passed a prevailing-wage bill3 applied to all contracts in the City --4 not just City contracts, but private5 contracts -- private employers, private6 entities in the same way that --7
So you're8 saying that we could not limit it to City9 contracts.10 DEP. SOLICITOR FEDER: Correct.11
Why is that?12 DEP. SOLICITOR FEDER: Because13 Council has police power over the general14 public to protect the public's health,15 safety, and welfare.16
But Council, in our18 view, doesn't have the power to tell the19 Administration how to go about doing its20 business other than as part of the21 regulation of the general public.22
My question23 is: How come, when we implemented 17-500,24 which made requirements on affirmative25 37 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 action, we specifically held that to City2 contracts, so in that regard, we were able3 to use that particular instance to only4 affect City contracts? Why is it5 different for prevailing wage?6 DEP. SOLICITOR FEDER: I think7 my recollection is that there's a fair8 amount of controversy as to whether9 Council had the power to impose the10 requirements of 17-500.11
No -- well,12 no, I was around. I actually, sir, was --13 I ran the Minorities Business Enterprise14 Council since -- from '87 to --15 (Addressing Councilwoman16 Sanchez.) When was your father at ...17
'88? So I19 had some experience with that.20 And when we went to court, it21 was not about whether we had the authority22 to implement 17-500; it was whether or not23 constitutionally in the U.S. did it24 discriminate against other races or groups25 38 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 of people.2 So the question of whether we3 had the authority to implement it was not4 a question.5
So my7 question becomes: If we had the authority8 to implement a particular regulation on9 contracting City contracting in that10 regard, why is it different for prevailing11 wage? Why do we not have the authority to12 do it there?13 DEP. SOLICITOR FEDER: I'm not14 sure I can accept the premise of your15 question, Councilman.16 I believe 17-500 is an example17 of what I alluded to earlier. The18 Administration is free, if it wishes, if19 it believes it has the resources and the20 ability, balancing all of the factors to21 implement prevailing wage, the22 Administration chose, with respect to23 MBEC, because it believed it was24 appropriate, balancing all of the factors,25 39 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 to voluntarily implement MBEC, and MBEC2 was implemented through an executive order3 of the Mayor, which largely mirrored4 17-500, but it was not as a result of an5 imposition by Council.6
Your7 recollection of history is revisionist.8 According to the law, it was passed under9 the City code, and I would ask you to go10 look up that, because it was passed.11 And then, when it was stuck12 down, there was an executive order that13 replaced it. That's the history. And I14 was there, so I do know.15 So I'm questioning whether or16 not we do actually have the authority to17 do that. And I'm not an attorney, but I'm18 a lawmaker, so I would question that.19 (Applause.)20
I just want21 to understand your testimony for the22 record. You're testifying that if we23 wanted to pass a prevailing-wage bill that24 applied to every employer in the City,25 40 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 that we would be within our police powers2 to do so.3 DEP. SOLICITOR FEDER: I haven't4 researched that question fully 'cause it5 isn't before us, but I would think there's6 a pretty good argument. I would want to7 do a little more research on that.8
So let's just12 say we pass that ordinance, and two years13 from now, we want to exempt out private14 employers.15 DEP. SOLICITOR FEDER: Then it16 would effectively be the ordinance that we17 have today.18
Then it would19 effectively be -- so what you're saying20 is, with respect to ordinances that are21 passed by this City Council, we can't hold22 ourselves to a higher standard than we23 would hold private employers under the24 Charter, in your opinion. That's25 41 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 effectively your testimony.2 DEP. SOLICITOR FEDER: With3 respect to nonprofessional service4 contracts, Council has exercised that5 power for years, without quarrel, but the6 Charter is, we believe, pretty clear that7 Council does not have that power with8 respect to professional-services9 contracts; that's been left to the10 administrations.11
Okay. Thank12 you.13 Any further questions for these14 witnesses?15
Mr. Feder,16 you say in your testimony that decisions17 regarding selection of professional18 services providers necessarily entails the19 elements of judgment and discretion.20 Can you explain that?21 DEP. SOLICITOR FEDER: The22 traditional reason why Section 8-200 of23 the Charter, like many contracting24 provisions throughout the country, impose25 42 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 lowest responsible bidder requirements on2 nonprofessional service contracts but3 exclude professional services because the4 decision as to how you go about choosing a5 professional-services provider is not6 susceptible to a mathematical formula;7 it's susceptible to judgment and8 discretion and lots of factors in choosing9 who that contractor would be and what the10 terms of the contract should be.11
And so12 clearly, we're not trying to give13 ourselves the authority to choose the14 contractor, and you're simply saying that15 trying to impose contract terms is --16 specifically is beyond our authority.17 If we didn't put a dollar amount18 in it but crafted other language along the19 lines of a living wage requirement, would20 that be legal?21 DEP. SOLICITOR FEDER: I don't22 believe so, Councilman. I know this is23 going to perhaps be surprising to some24 members of the committee, but we do try to25 43 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 come up with ways to make Council2 legislation work. And if we thought there3 was a way to make this work, I would4 suggest it, and if I thought that idea5 would work, I would immediately agree --6
No, I'm7 asking because of --8 DEP. SOLICITOR FEDER: I do not9 believe that would be within Council's10 power.11
I'm asking --12 I want you to explain why because I have13 actually a couple of questions beyond14 that. There's a reason why I'm asking15 that question, not just for that specific16 answer, but can you explain why?17 DEP. SOLICITOR FEDER: Sure.18 For the same reasons that I've been19 suggesting. Imposing a requirement that20 all City -- or that any City professional-21 services contract contain a substantive22 provision such as certain workers must be23 paid a prevailing wage, that's a24 substantive rule, and that is not within25 44 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 Council's power; that's an administration2 prerogative to determine what the3 professional-services contracts look like.4 Council doesn't make contracting5 decisions for the City; the6 Administration, does under the Home Rule7 Charter. And that goes to both who gets8 the contract and what the contract looks9 like and what the contract says.10
Actually, the11 question I was about to ask was related to12 minimum wage laws on the state and federal13 level, but actually, I'll just14 (indiscernible) the question.15 I think at the end of the day,16 it is probably just a Charter issue in17 your mind, and it's going to stay there,18 rather than it being a Philadelphia Code19 issue.20 Thank you.21
One final22 question. When you're reviewing23 nonprofessional service contracts, do you24 consider whether or not the bidder is25 45 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 responsible?2 DEP. SOLICITOR FEDER: The3 Charter requires that the Administration4 do that, yes.5
And what does6 "responsible" mean?7 DEP. SOLICITOR FEDER:8 Procurement is not my area.9
But, generally, it11 means, at a minimum, are they capable of12 performing the work in a manner sufficient13 to meet the quality standards that we14 would expect of a City contractor.15 And, in addition, Council has16 traditionally added other elements of17 responsibilities that don't necessarily18 just go to the ability to perform the work19 but also go to certain elements of social20 responsibility, and Council has exercised21 that power, and the cases have suggested22 that that might well be acceptable too.23
Well, let me24 suggest that we think it's socially25 46 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 irresponsible to pay people below the2 prevailing wage who are working in the3 City's facilities, and I think that word4 "responsible" is where Council is going to5 hang its hat on this matter.6 Thank you.7 (Applause.)8
I'd like to9 briefly call Mr. Auerbach and Mr. Masters.10 (Witnesses come forward.)11
I just want12 to ask you -- I rarely get a yes, no13 answer from the Administration, so I want14 to see if we can limit your testimony to15 one word.16 So if you would please state17 your name for the record.18
Thank you,21 Mr. Auerbach.22 Is the bill proposed by23 Councilwoman Sanchez legal, in your view?24
Yes, it is legal.25 47 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021
Councilman5 DiCicco.6 COUNCILMAN DiCICCO: I'm not a7 lawyer. Is it legal, meaning it's8 enforceable?9
I believe the10 recent amendments to Section 8-200 of the11 Charter that were adopted in 200512 eliminated any question at all about13 Council's authority to enact this bill.14 It expressly authorizes Council to15 legislate a process for the award of16 professional-services contracts, and17 that's exactly what this bill does.18 COUNCILMAN DiCICCO: I want to19 do the responsible thing and vote for the20 bill because I think it's the right thing21 to do; I just don't want to go down a path22 that it's an exercise in futility, meaning23 we're not going to get this done, and it24 sounds all good, but at the end of the25 48 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 day, we're going to lose the case.2 But I'll accept your explanation3 and opinion. Thank you.4 Thank you.5
Thank you.6 And I appreciate your testimony. Thank7 you.8
I'm going to10 submit for the record the memo from the11 tech staff of City Council, which12 basically says that we can determine pay13 as a criteria for whether or not a bidder14 is responsible.15 Our next witnesses is a panel16 of: Pam Johnson, Samuel Sessoms*, and17 Matt Tadlock.18 (Witness comes forward.)19 (*Samuel Sessoms' written20 testimony is attached hereto.)21
We have your22 testimony for the record, and it will be23 submitted. If you would like to24 abbreviate it, that's fine, or you can25 49 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 read it for the record.2 Thank you.3
All right. Good4 morning. My name is Mark Tadlock, and I5 have been a (indiscernible) security6 officer for three years and most recently7 became a member of SEIU Local 32BJ.8 I currently work at the Ridge9 Shelter, making both staff visitors are10 safe. You may have read about me in the11 Inquirer last month. Columnist Karen12 Heller said my job was one of the toughest13 she's ever seen. Every day, 365 days a14 year, this shelter is jammed to capacity.15 Every day, my colleagues break up fights,16 confiscate drugs and weapons and deal with17 people our society has forgotten.18 In 2007, we joined together with19 SEIU 32BJ. We negotiated a contract with20 Scotland Yard that increased my wages from21 $8.65 an hour, with benefits or paid time22 off, to $13.02, with employer-paid medical23 coverage and ten paid vacation days. For24 over a year, I earned living wages, and my25 50 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 family benefited. I have three children2 and a wife to support.3 In March 2009, my life was4 changed when I was informed on Friday that5 the following Monday, my pay would be cut6 from $13.02 to $9 an hour, and that I7 would no longer receive medical insurance.8 I could not believe the City would do this9 to me and my twenty coworkers. In these10 tough times, I had no choice but to accept11 the offer, that I could not afford to live12 without a paycheck.13 The union explained to us that14 the City used a loophole in the15 prevailing-wage law to cut payments to the16 shelter, which, in turn, allowed Scotland17 Yard to cut our pay.18 We are fighting to maintain our19 dignity. We have seen what can happen20 when we join together with a strong union,21 but we (indiscernible) what can happen22 when public policy does not support23 working people.24 On behalf of my coworkers and25 51 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 building-service workers in the City, I2 urge you to close this loophole so this3 doesn't happen again.4 Thank you.5
Good afternoon.11 My name is Pamela Johnson, and I have been12 a Scotland Yard security guard for six13 years. I currently work as a security14 guard at the Municipal Services Building.15 I am here today to ask for your support16 for Bill No. 090292, the amendments to the17 Philadelphia prevailing wage.18 I have been a 32BJ SEIU member19 for six months. Before the union came and20 this City Council passed the prevailing-21 wage law in 2007, I knew that there wasn't22 a guarantee on my job or wages and that if23 the City or my employer decided to change24 the rules, I could be out of a job. The25 52 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 prevailing-wage law protects me, but2 because of a loophole in the law, my3 brothers and sisters, who also work in4 Scotland Yard, do not have the same5 protections.6 I am here to support closing the7 loophole in the prevailing-wage law8 because I know what it feels like to have9 the rug pulled from underneath you, to one10 day wake up and not know how you are going11 to make ends meet.12 Security guards in this city do13 not have an easy job, and every day, we14 encounter a host of problems that most15 people would not want to deal with.16 Homeless-shelter security guards know this17 better than anyone else, and yet, they18 will now be paid less than their coworkers19 at the Municipal Services Building, One20 Parkway, and City Hall for doing the same,21 if not tougher, work. How is this fair?22 It troubles me that in these23 difficult times, while those at the top24 continue to live comfortably, workers such25 53 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 as those in the homeless shelters have to2 go out and look for an additional job3 because the one they have will no longer4 be enough to pay the bills or provide5 health care.6 It troubles me that the7 administration of this city did not8 consider these workers important enough to9 uphold the spirit of the law and maintain10 their wages and health care.11 It troubles me that decision-12 makers don't take into consideration what13 effects their actions will have on the14 day-to-day lives of workers.15 I know that for some, this is16 just another piece of technical17 legislation coming before the City18 Council, but for many workers, it is the19 difference between poverty wages and20 living wages, health-care coverage for21 their family, and joining the millions of22 uninsured.23 I ask the members of this24 committee today to consider how important25 54 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 this bill is to the working people of2 Philadelphia and vote in support.3 Thank you. And have a good4 afternoon.5 (Applause.)6
Thank you for7 your testimony.8 Are there any questions for9 these people?10 (No questions or comments.)11
Okay. Then12 we will move out of our public hearing and13 into the public meeting.14 I would ask the bill's sponsor15 to move the bill.16
Thank17 you, Chairman Green.18 I would ask that Bill 090292 be19 moved out of committee with a favorable20 recommendation and that the rules of21 Council be suspended to allow for first22 hearing at our next public session.23 (Motion duly seconded.)24
All in favor?25 55 5/14/09 - LABOR/CIVIL SERVICE - BILL 0902021 All opposed?2 Seeing no opposition, the bill3 passes.4 I'd like to say that this bill5 builds on the fine prevailing-wage work6 done by Councilman Kenney, and I want to7 thank him for his work in this area also.8 This meeting is adjourned.9 (Applause.)10 (Proceedings end at 3:20 p.m.)11 * * *12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 C E R T I F I C A T E2 I HEREBY CERTIFY that the4 proceedings of the City of Philadelphia5 Council Committee on Labor and Civil Service6 are contained fully and accurately in the7 stenographic notes taken by me on Thursday,8 May 14, 2009, and that this is a true and9 correct statement of same.10 11 12 13 __________________________________ 14 JOSEPHINE CARDILLO Registered Professional Reporter15 16 17 18 19 (The foregoing certification of20 this transcript does not apply to any21 reproduction of the same by any means, unless22 under the direct control and/or supervision of23 the certifying reporter.)24 25