Committee Hearing, March 15, 2010

COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON LAW AND GOVERNMENT - - - Room 400, City Hall 9, Pennsylvania Monday, March 15, 2010, 1:20 p.m. - - - *Bill 100123 - Providing for submission to qualified electors of City of Philadelphia of an amendment to the Philadelphia Home Rule Charter to provide for creation of Office of Inspector General... *Res. 100140 - Proposing an amendment to the Philadelphia Home Rule Charter to provide for creation of Office of Inspector General... Bill 100121 - Restrictions on political activities of City officers and employees... Res. 100139 - Restrictions on political activities of City officers and employees... (* - Held to call of the Chair.) COMMITTEE MEMBERS PRESENT: William K. Greenlee, Chair James F. Kenney, Vice Chair W. Wilson Goode, Jr. Bill Green Jack Kelly Also Present: Councilman Curtis Jones, Jr. - - - 2 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140

Good afternoon, everybody. This is the Committee on Law and Government. For the record, we have a quorum: Councilman Kenney, vice chair of the committee; Councilman Goode; Councilman Green; Councilman Kelly; and myself, Bill Greenlee, who is the chair. And I would ask Miss O'Connell to read the first bill and resolution 12 that we're going to consider today.

Bill No. 100123, an ordinance providing for the submission to the qualified electors of the City of Philadelphia of an amendment to the Philadelphia Home Rule Charter to provide for the creation of an Office of Inspector General, to provide for the powers and the duties of such office to establish requirements for certain City officials and employees in connection with the work of the Inspector General, and to otherwise provide for the incorporation of the Inspector General 3 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 into the City government, fixing the date of a special election for such purposes; prescribing the form of the ballot question to be voted on; and authorizing the appropriate officers to publish notice and to make arrangements for the special election. Resolution No. 100140, a resolution proposing an amendment to the Philadelphia Home Rule Charter to provide for the creation of an Office of Inspector General, to provide for the powers and duties of such office, to establish requirements for certain City officials and employees in connection with the work of the Inspector General, and to otherwise provide for the incorporation of the Inspector General into the City government; and providing for the submission of the amendment to the electors of Philadelphia.

Thank you. Just for the record, to show 4 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 how we're going to do this, we're going to run the bill and resolution, have testimony on that bill and resolution 5 first dealing with the Inspector General. And after all of that's completed, we will have the testimony on the political-activities bill. So our first witness is City Controller Alan Butkovitz. And while Mr. Butkovitz is coming up, I'd like to make a general announcement. I know we have a long list of witnesses on both bills, and I would ask, if you have written testimony, we will make that a part of the record, but if you could kind of give a -- more of a brief statement rather than reading every word of your testimony of your written statement, it would make things move a little faster, 'cause some witnesses are going to be here on both bills. (City Controller Alan Butkovitz comes forward.)

So with 5 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 that, Mr. Butkovitz, good afternoon. How are you? CITY CONTROLLER BUTKOVITZ: Good afternoon. I can't help noting that it's the ides of March and that, traditionally, this is a dangerous time for members of a legislative branch to enter a legislative chamber.

Some people would say it's always dangerous in here. ) CITY CONTROLLER BUTKOVITZ: Thank you for the opportunity to testify on the Inspector General bill. I think the current Inspector General, Amy Kurland, has been doing a very good job in the office as is presently constituted. And mayor Nutter is to be commended as well for his leadership in ethics and reform. 10 LAW & GOV'T, BILL 100123, RES. 100140 weeding out fraud in criminality in City government. While I have serious concerns in the number of provisions in this proposed legislation, I am most troubled by the requirement that all governmental agencies, including District Attorney's Office, the Philadelphia Police Department, and the City Controller's Office would all be required to report all wrongdoing to the Inspector General. This would include any rumored or unsubstantiated allegations of wrongdoing. This mandatory notification provision would lead to massive investigatory confusion and create jurisdictional paralysis. It would dangerously disrupt long-established investigatory procedures and territorial ground rules in the DA's Office, the Police Department, and the City Controller's Office. 10 LAW & GOV'T, BILL 100123, RES. 100140 Controller's Office, mandatory notification would result in the IG's Office being totally overwhelmed by hundreds, if not thousands, of unfounded allegations, all of which the IG would be required to investigate. There are at least 300 assistant district attorneys, over 70 auditors and investigators in the City Controller's Office and over 6,000 Philadelphia police officers, all of whom would be required to notify the IG of any and all wrongdoing as soon as they became aware of it or face termination if they fail to do. The phone lines between the Police Department and the Inspector General's office would be chronically jammed. 10 LAW & GOV'T, BILL 100123, RES. 100140 she is required to provide legal counsel to. How could the City Solicitor be required to provide information to an investigatory unit that would eventually investigate a client he or she is required to defend under the City Charter. This legislation would jeopardize, if not destroy, attorney- client privilege and raise serious questions about client privacy. Hypothetically, a City employee could be terminated for acting in good conscience in alerting the United States Attorney to suspected criminal wrongdoing instead of going to the Inspector General. At the same time that this proposed legislation requires City employees to notify the IG of all wrongdoing, the employee is required, under threat of dismissal, to ensure that the complaint is not frivolous before the employee notifies the IG. 10 LAW & GOV'T, BILL 100123, RES. 100140 the employee in the position of contradictory requirements with devastating consequences potentially for the employee. It's an unfair burden upon the employee who is threatened with dismissal if they fail to report what they perceive as criminal wrongdoing while also facing the possibility of termination for a complaint that is frivolous. , the United States Attorney, the DA, the Philadelphia Police Department, the State Attorney General, the City's Inspector General, and our own office all working independently in a variety of fronts to uncover and expose municipal fraud and criminal corruption. It has been clear in the past that when the time comes and circumstances warrant, all involved parties come together and fully cooperate with each other. 10 LAW & GOV'T, BILL 100123, RES. 100140 been and that's the way it should be. Establishing single clearinghouse run by a political appointee to screen and filter all allegations of criminal wrongdoing is just dangerous. While all City agencies are required to report any and all wrongdoing to the IG, there is no reciprocal requirement that the IG notify or turn over any investigatory materials and information to other departments such as the District Attorney and/or the City Controller.

The Inspector General would not be required to turn over the discovery of any financial fraud to the Controller for auditing. Additionally, by granting the IG the power to audit fraud, corruption, and misconduct, this proposed legislation confuses the professional practice of auditing with an investigation that includes the need to conduct an audit. 10 LAW & GOV'T, BILL 100123, RES. 100140 investigate, detect, or examine, which is in direct contrast to the authority to audit that this proposed legislation grants to the Inspector General. The Home Rule Charter clearly delineates, duties, responsibilities, and powers for all City departments and agencies. Provisions contained in this legislative proposal would not only create confusion; it would result in a duplication of duties and responsibilities. When similar legislation to change the duties of the Inspector General was proposed three years ago, the Committee of Seventy raised these very concerns as well as the fear that it would diminish the independent investigatory powers of other City agencies, including the District Attorney, the Police Department, and the City Controller. 10 LAW & GOV'T, BILL 100123, RES. 100140 make every effort to avoid unnecessary confusion to ensure that the taxpayers are not paying two or three time for duplicative investigations. I shared the concerns back then and continue to believe today that multiple agencies investigating the same person or entity simultaneously will create confusion and compromise if not disrupt ongoing investigations of waste, fraud, mismanagement, and criminality. There is also the very serious question of independence. In comparison to the District Attorney and the City Controller, who are independently elected by voters, the Inspector General is a political appointee of an incumbent mayor, the very person whose office and departments the IG is tasked with investigating. 10 LAW & GOV'T, BILL 100123, RES. 100140 future mayors, some of whom may not have the high integrity and ethical standards as our current mayor. Under this proposed Charter change, the Mayor would have the sole power to appoint and terminate the Inspector General, although it is for cause, a termination for cause. But the decision on termination is the Mayor's soley, not one that needs to be validated by a super majority in Council, by a majority of Council, or by any other body. That in itself raises serious questions about potential conflicts of interest, potential political interference, and questionable independence during an investigation of the Mayor's own staff or departments. 10 LAW & GOV'T, BILL 100123, RES. 100140 political appointee would be in pursuing an investigation of the very person who appointed him or her. The public would always question the thoroughness of the investigation. There is the very real possibility that, given a certain set of circumstance, the IG could function as an internal defense mechanism, protecting a City mayor from outside investigations and scrutiny of his or her departments by independent outside oversight authorities, whether they be law enforcement or auditing authorities like the City Controller. Given the concerns already outlined, there is the added problem that this legislation gives an inordinate amount of power to the Mayor over all City agencies and departments, independently-elected row offices. 10 LAW & GOV'T, BILL 100123, RES. 100140 were duly-elected to run their own respective City agencies. The Mayor would have to power to compel the Inspector General to investigate another independently-elected City official. The question is whether the IG would resist this intrusion by the Mayor, fully realizing that the Mayor has the power to terminate him or her, with virtually no recourse to appeal to an outside independent authority. Giving the Office of the Inspector General unchecked authority and duplicative powers of oversight is dangerous and highly suspect.

If enacted, this legislation could be used as an early warning system that would alert the Mayor to the discovery of potential criminal wrongdoing by one of his or her appointees or even by the Mayor himself. The consequences of this are clear and evident. 10 LAW & GOV'T, BILL 100123, RES. 100140 Inspector General plays an important role in weeding out fraud and corruption in City government as well as serving a deterrent because of its very existence. The current IG has clearly demonstrated this point. I believe the proposed changes to the IG's role have the potential to create confusion while duplicating and disrupting ongoing investigations by law enforcement and other City investigatory agencies as well as potentially protecting a sitting mayor and his or her administration from outside scrutiny and investigation by an independent authority. So thank you.

Thank you for your testimony. Any questions for Mr. Butkovitz? Councilman Green.

Thank you. So to be clear -- I don't think you specifically said so in your 17 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 testimony -- you oppose enacting current Inspector General. CITY CONTROLLER BUTKOVITZ: Well, in this forum, and what I was basically focusing on was of the bill, which starts out: Every elected official and City agency, et cetera, will report to the Inspector General any knowledge, information, or allegation, et cetera, et cetera.

Are you aware of the Mayor's Executive Order with respect to the Inspector General, in the creation of the Inspector General? CITY CONTROLLER BUTKOVITZ: I recall seeing it at one time, I'm aware of it; I haven't looked at it lately.

Okay. Every provision that you object to in terms of the authority and power of the Inspector General is in the Executive Order currently. CITY CONTROLLER BUTKOVITZ: Well, first of all, that order has no 18 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 jurisdiction over the City Controller, the District Attorney, et cetera. So --

It specifically does say the language that you're objecting to, though. CITY CONTROLLER BUTKOVITZ: They have not tried to impose that requirement in our office before.

Are you not -- are you at all concerned that if your employees are aware of some investigation you're doing and they haven't turned it over to the Inspector General that they are subject to termination pursuant to the terms of the Executive Order today? CITY CONTROLLER BUTKOVITZ: No, no. That's the very point. The Executive Order only applies to employees who are subordinate to the Mayor.

Well, it purports to apply to everybody, including your office. CITY CONTROLLER BUTKOVITZ: 19 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Well, we still have a democracy in Philadelphia.

Right. CITY CONTROLLER BUTKOVITZ: And the Mayor does not have the power to promulgate regulations without legislative authority --

No, I just thought you might enjoy the opportunity to put that on the record. I'm curious about something in your testimony. It said it would dangerously disrupt long-established investigatory procedures and territorial ground rules in the DA's Office, the Police Department, and the City Controller's Office. And by implication, I guess, there are ground rules in the Inspector General's office. Is there any sort of written agreement of where people's jurisdiction begins and ends? CITY CONTROLLER BUTKOVITZ: No. 25 I think that the law and practice is 20 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 clearly delineated. For example, we have the authority to pursue anything that is incident to the auditing of the City's financial statements. And if that, for example, will lead to evidence of fraud, we have the option, and usually we will either refer it -- first of all, we'll make a finding as to whether we think there is substance to the potential finding. And then it will yield a referral either to the District Attorney or sometimes a joint action with our office and the United States Attorney's Office. Now, under this legislation, this would appear to create a detour or some kind of initial reporting requirement. I can tell you, I mean, we are on the verge of some major revelations in the near future. And investigative practice involves keeping these things very close to your vest and 21 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 not maximally dispensing them to many eyes and many other agencies because things get leaked, people are warned.

Sure. No, I -- and your testimony makes that very clear and, I think, raises excellent points in that regard. I just wondered if there are a clear set of guidelines that people operate under other than having to look at and interpret the Charter yourself and, you know, make your own decision about what the Executive Order actually authorizes compared to what it purports to authorize, et cetera, and whether or not you think it would be a useful exercise to sort of put those sort of jurisdictional things, you know, in -- (Indiscernible; parties talking over each other.) CITY CONTROLLER BUTKOVITZ: I think it functions very -- I mean, look, take the District Attorney, for example; they have hundreds of years of common law 22 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 experience and expertise in determining what will result in a successful prosecution, what the rules of the game are within their forum. Why should they confront a situation where there is a piece of legislation that is written as if the universe is being created from scratch, and there is an office of or people 11 that now has authority functionally over 12 hundreds of assistant district attorneys, 13 dozens of auditors, and thousands of 14 police officers, without even the 15 capacity to understand the detailed rules 16 of the game under which these various 17 agencies are functioning today and have 18 functioned for dozens or hundreds of 19 years. 20

Thank you very much.

Thank you. Any other questions for the City Controller? 23 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 (No further questions or comments.)

Seeing none, thank you, sir, for coming. CITY CONTROLLER BUTKOVITZ: Okay, thank you.

Our next witnesses are from the Office of the District Attorney: Seth Williams, Mr. Greg Rowe, and Mr. Curtis Douglas. (Witnesses come forward.)

Good afternoon, gentlemen. Please identify yourselves for the record and proceed with your testimony.

Thank you. Good afternoon. My name is Greg Rowe, Chief of Legislation and Policy Unit in the Philadelphia District Attorney's Office.

Good afternoon. My name is Curtis Douglas. I'm the Deputy of Investigations for the District Attorney's Office of Philadelphia.

Thank 24 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 you.

Thank you. And although the District Attorney could not be here this afternoon, he does have written testimony that I have submitted, and I will present the highlights of that testimony.

Thank you.

And I will not read the entire portion --

Thank you.

-- of his testimony.

I'm glad somebody listened. No, I'm only kidding.

At the outset, we certainly want to echo the praise for the Inspector General. The work of the Inspector General thus far has been admirable, and she is doing outstanding work. 10 LAW & GOV'T, BILL 100123, RES. 100140 have to wonder whether these provisions will further public safety in Philadelphia. Although we oppose the resolution as written, we stand ready and able to work with City Council, with the Inspector General, and with the Mayor's Office to attempt to fashion a bill that better protects public safety, makes better use of taxpayer dollars, and certainly incorporates the notion of making the Inspector General a more independent body, which is a very worthwhile and important goal that we share. 10 LAW & GOV'T, BILL 100123, RES. 100140 the DA or the US Attorney or Attorney General. This is bad for taxpayers. This is bad for taxpayers because it will lead to overlapping duplicative investigations. At a time when budgets are tight and the economy is not good, we should be looking to enhance efficiencies and to reduce waste, not to put into place a system that may actually yield more inefficiencies and duplicative investigations. The resolution is bad for public safety because it may actually impede and disrupt investigations and prosecutions by law enforcement, and that's a very real concern that we have based on the language that's before us as we read it. It sanctions a non-criminal justice agency, the Inspector General, to actually conduct criminal investigations that the DA and the US Attorney typically handle. 10 LAW & GOV'T, BILL 100123, RES. 100140 investigating the alleged criminal activity. Unlike the Inspector General, prosecutors and other law enforcement have the tools and resources to conduct criminal investigations such as through access to law enforcement records and intelligence information, the ability to use wiretaps, the power to seek search warrants, or immunity. Moreover, if the Inspector General takes longer to conduct its enhanced investigations under this resolution before referring matters to prosecutors, applicable statutes of limitations that clearly put a time limit on our investigations and prosecutions may run out. It would be disastrous to allow criminals to go free based on any technicalities under these circumstances, and we want to be sure that we avoid these circumstances. 10 LAW & GOV'T, BILL 100123, RES. 100140 General, that may actually diminish the capacity for the Inspector General with its current resources available to do what it does now, which it does very well. So we want to put out there that first do no harm; and by expanding the universe, there could be harm to the job that's currently done. We also have to be careful about the dissemination of protected confidential intelligence information in the hands of law enforcement and, there's a reason why specifically delineated law enforcement agencies are the only ones that are allowed to have access under state and federal law, in particular with confidential information. 10 LAW & GOV'T, BILL 100123, RES. 100140 and they're not supposed to share that information with non-law enforcement agencies. It's very dangerous if that information gets out, and it's important to keep that information within the smallest universe possible so as to avoid the risk of targets learning -- unintentionally allowing targets to learn about investigations. We also wanted to echo the concerns raised by Mr. Butkovitz about the mandatory reporter provisions in the bill. If an employee fails to report suspected misconduct supported by probable cause or reports to the IG suspected misconduct and there is no 18 probable cause, then, under this language, that person may be fired for cause. The concerns that arise there are that some City employees would effectively be required to report gossip. 10 LAW & GOV'T, BILL 100123, RES. 100140 IG's purview.

How would a City employee know what constitutes probable cause, which, of course, is an issue which individual members of our state and supreme and superior and US Supreme Court can't agree on. Who determines probable cause? And if a good City employee who reports criminal activity within the enhanced scope of the Inspector General to the DA and to the Police and the US Attorney and to the FBI but doesn't report it to the IG, he or she could be fired for cause under plain-language reading of this resolution. So it may be an unintended consequence, but I just want to point out some of the drafting issues that we'll need to look at as we go further. Moreover, as it's written, as our investigators, as Mr. 10 LAW & GOV'T, BILL 100123, RES. 100140 within the scope of the Inspector General, if it arises to the level of criminal activity, he would actually have to then report that to the Inspector General, which, again, seems perhaps unintended but certainly duplicative and not a good use of resources. Finally, I think the effect on the Inspector General, with the enhanced duties, would certainly be a need for increased staffing to handle the influx of phone calls and inquiries based on what's put forth in terms of the duties and responsibilities of all City employees. So I'll end it there, but we are here to answer any of your questions and to work with you going forward on this.

Thank you. Mr. Douglas, do you have separate testimony or do you --

I do not. I just 32 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 concur with, uh --

Okay, thank you. Councilman Green.

Thank you for your testimony. Did you hear the convers -- you were present in the room when I was asking questions of Controller Butkovitz. Are you aware that the current Executive Order requires the very things that you are suggesting should not be there, mandatory reporting, other things like that?

We certain are aware of that now, yes.

Are you aware that the Inspector General has police officers assigned to her and that she is using those police officers and actively conducting investigations and threatening people with subpoenas?

Yes.

And are you 33 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 working with them on that or -- because your testimony seems to indicate that you don't feel that that's appropriate; that when it reaches that level, they should refer the matter to the District Attorney.

Let me let Mr. Douglas answer that, who works with the IG day in and day out.

All right. At this point, I think that the position of the District Attorney's Office is, once the Inspector General finds that there are any indications of violations of law or criminal violations, those investigations should be turned over to either the Office of the District Attorney, the United States Attorney's Office or the Attorney General's Office. We do not agree that they should actually involve criminal investigations; that is a realm that I think is specifically given to the District Attorney, the Philadelphia 34 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Police Department, as well as the other agencies that I mentioned. We are aware that there are police officers there. Now, whether those police officers are, in fact, conducting criminal investigations or may be assisting in some violations of police work is the question. We're actually not certain as to how they're working.

Well, you know, I'm not going to characterize how the Administration is doing it 'cause, obviously, I don't know, but I would suggest to you that you probably ought to have those conversations because during the budget testimony and other times, you know, we would expect to try to have a clear delineation of responsibilities so, as you suggested, we are not spending resources on duplicative activities. So I thank you for your testimony.

Thank you.

Thank 35 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 you. Councilman Kenney.

Thank you very much. Thank you for your testimony. As I understand your concern relative to criminal investigations, it's your position that if this bill were in place, that if you were aware or became aware during your investigations of criminal activity or potential criminal activity amongst City employees, you would be required to turn that information over to the Inspector General --

Yes.

-- thus potentially --

Yes.

-- certainly not in this particular case with this particular inspector general, but potentially compromising an investigation, because in this particular case, I don't have a problem with this 36 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 particular inspector general thinking that she would do anything of the sort. But if you would perhaps go back to the future, in past administrations, I don't particularly know whether or not I would have complete confidence that that information would remain pristine. And going forward, not knowing who's going to be elected mayor after Mayor Nutter, I would have really serious concerns about who that next IG might be and what kinds of ramifications there are relative to everything that involves your investigations.

And that's precisely the point, sir, that when we look at the bill, we have to look at it in the context of going forward, it being the law of the land for years and decades to come. So we have to account for all possibilities based on whoever is mayor and whoever is IG.

And I 37 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 recognize the charge of the DA in Philadelphia does have corruption issues and other issues that they need to investigate, but it's been my experience that because of the workload that you folks have on the day-to-day street crime and all of the things that you need to deal with the constrained resources, that the real effective enforcers of corruption -- or anti-corruption in investigations and laws and prosecutions has been the US Attorney's Office, and they've been very effective at doing that, and they have the unlimited -- not unlimited, but relatively unlimited resources and power and authority in just about every area of city, state, and federal government, and they've been doing it for quite some time, and they do it quite well.

May I, Councilman? Councilman, actually, you're probably right that the US Attorney's 38 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Office has been working for the most part as a forefront. However, I would like to bring to Council's attention that since the present administration has been in office, we've had one trial in which there are 373 guilty counts brought against three people for theft of deeds and the reselling of those deeds. So it's an emphasize of the current administration to actually pursue some of the white-collar fraud and corruption charges against people in the City of Philadelphia. So we will not leave it to the US Attorney's Office.

And I know that is a different philosophy from the last district attorney, who automatically would refer that information to the US Attorney's Office. And if DA Williams is of a different mindset, then, you know, bravo, and you'll have two competent agencies checking stuff out. 39 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140

And he is. And, again, just to bring this full circle, again, we are extraordinarily pleased with the work of the Inspector General, so this is not any criticism of the Inspector General.

Yeah, and I think I hopefully made that clear in my comments.

Yes.

Thank you.

Thank you. I have to add, as someone who's been involved with the whole issue of theft of property, I'm very glad to hear how quickly and strongly you're moving on those 'cause I think that is a problem that's really prevalent in the City and maybe not as -- people are not as aware of it until it happens to them. So I congratulate the new DA on that activity. Thank you. 40 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Any other questions from members of the committee? (No further questions or comments.)

Seeing none, gentlemen, thank you both very much.

Thank you.

Thank you.

Thank you for coming. The next witness I'll call is Mr. Armbrister, Chief of Staff to the Mayor. (Witnesses come forward.)

I see the City Inspector General is joining Mr. Armbrister, okay. Good afternoon to you both. Please identify yourself for the record and proceed. And we have your testimony here already, yes. Thank you.

Good afternoon. I'm Clarence Armbrister, 41 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Mayor Nutter's Chief of Staff. INSPECTOR GENERAL KURLAND: Good afternoon. Amy Kurland, Inspector General.

I know you have my testimony, and it's very, very short, so I'm going to go through it very, very quickly here. On January 24th, at the beginning of Mayor Nutter's term, the Mayor proposed Council Resolution 080039, which called for an amendment to the Philadelphia Home Rule Charter to create an independent and effective Office of Inspector General. Clearly, this administration is in favor of an independent Inspector General's Office, and we really do appreciate Council's efforts to revisit the issue. This committee held a hearing on the bill on February 19, 2009, and the bill still sits before this committee. Resolution No. 100140, the 42 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 subject of today's hearing, contains most of the same provisions as the 2008 proposed Charter change. The proposal before Council today, however, has some important differences from the Mayor's proposal, which I'd like to briefly describe. First, I note that Resolution 10 No. 100140 would exempt City Council and its staff from the IG's jurisdiction. I understand Council has concerns regarding inclusion under IG's jurisdiction because it is a separate branch of government, and the IG is an executive and administrative branch official; we really do appreciate these concerns and do not oppose leaving the investigation of Council-related matters to Council itself. Second, financial independence of the Inspector General is critical to the performance of its functions. Resolution No. 100140 would not provide for a guaranteed budget for the IG. This 43 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 really is a significant concern for the Administration. Third, Resolution 100140 would require the IG to report to the President of City Council allegations made by any persons of alleged wrongdoing by a member of City Council or its staff. This is also a significant problem for the Administration, as such disclosures could unfairly be seen as a determination that the alleged wrongdoer had, in fact, done something wrong and could compromise an ongoing investigation by a law enforcement agency. Because of our concerns regarding guaranteed funding and the requirement to disclose allegations of wrongdoing, the administration would like to propose amendments to Resolution No. 21 100140, which I would offer to you now. In conclusion, I want to thank you for returning to this subject, which is obviously of importance to the Administration. Thank you for the 44 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 opportunity to testify. And, of course, I will answer any questions you may have. Amy Kurland, the current Inspector General, will also offer testimony and is available to answer any questions.

Thank you, Mr. Armbrister. Ms. Kurland, did you want to say something too? INSPECTOR GENERAL KURLAND: I do, I do.

Okay, please do. INSPECTOR GENERAL KURLAND: Okay. Thank you, Councilman. As the Chief of Staff has testified, this resolution proposes the creation of an independent Office of the Inspector General under terms that are very similar to those in the Mayor's proposal from January of 2008. 10 LAW & GOV'T, BILL 100123, RES. 100140 bill; and, clearly, we are in favor of an independent Inspector General's Office, similar to that which exists in other major cities like Chicago, New York, Miami, and New Orleans. I will not go through in detail the provisions of the proposed Charter change because, as the Chief of Staff said, they are virtually identical, except for some major points, to the one that was proposed in 2008. This resolution is modeled after comparable legislation in other large cities. The Association of Inspector Generals, which is a nationally-recognized organization, has established quality standards and principles and recommends that IG offices be independently established by law. , Miami, Houston, and New Orleans. 10 LAW & GOV'T, BILL 100123, RES. 100140 In Chicago, the independent Office of the Inspector General was established in 2005. More recently, in New Orleans, the City Council passed a bill for an operationally-independent Office of the Inspector General. These cities have recognized the need to police themselves; they do not rely on federal and state law enforcement to clean their houses. They have responded by affirmatively demonstrating to their citizens that they are willing, and even eager, to police themselves. As independent offices of the Inspector General, they exercise objectivity, fairness, and integrity; thus earning the public's trust. Resolution 100140, the subject of today's hearings, contains many of the same provisions as the 2008 proposed Charter change, as outlined by the Chief of Staff. 10 LAW & GOV'T, BILL 100123, RES. 100140 Inspector General. And if I may briefly describe those differences. First, Resolution No. 100140 would exempt City Council and its staff from the Inspector General's jurisdiction. I understand Council has concerns regarding the inclusion under IG jurisdiction because it is a separate branch of government; but just as Council is concerned about its independent, financial independence of the Inspector General is critical to the performance of its function. This resolution would not provide for a guaranteed budget, and this is a significant concern for several reasons. Other cities with IG offices do have guaranteed budgets. C. has a guaranteed budget, which cannot be reduced. New York City has a guaranteed budget of $18 million. 1 million. 10 LAW & GOV'T, BILL 100123, RES. 100140 at 1/4 of 1 percent of all operating departments. And similarly, in Chicago, recent legislation was proposed to establish the IG's budget at 1/10 of 1 percent of all operating departments. Without a guaranteed budget, there can be no independence. If someone is unhappy with investigations pursued by the Inspector General, the threat to reduce or zero-out the IG's budget is always present. The threat of a reduced or eliminated budget, of course, hampers independence. The Philadelphia Inspector General's Office is more than self-supporting. 3 million. 1 million. 14 million, more than triple its budget. 10 LAW & GOV'T, BILL 100123, RES. 100140 of City Council allegations made by any person of alleged wrongdoing by Council and its staff. This is also a significant problem for two reasons. The first reason is that allegations of wrongdoing that we receive may simply be nothing more than allegations. The IG takes this point very seriously, and its practice is to neither confirm nor deny whether an investigation exists, except when we determine that there's sufficient evidence to warrant a referral to law enforcement agency. This practice protects individuals about whom allegations are made should the allegations be unfounded.

If the IG is required to disclose allegations before a complete investigation is conducted, individuals may be unfairly tainted by baseless allegations. This is the same rationale for grand jury secrecy. 10 LAW & GOV'T, BILL 100123, RES. 100140 the IG is required to disclose allegations of wrongdoing, this could compromise an ongoing investigation by a law enforcement agency. Because of our concerns regarding guaranteed funding and the requirement to disclose allegations of wrongdoing, the Chief of Staff has proposed amendments to the resolution. The amendments would guarantee adequate funding to the Office of the Inspector General and eliminate the requirement that the IG report to Council President complaints that the IG receives related to Councilmembers and its staff. In addition, the resolution 18 leaves reserved the start date of the first term of the IG under this proposal. The proposed amendment would make that date July 1st. 10 LAW & GOV'T, BILL 100123, RES. 100140 Administration. Thank you for the opportunity to testify. And, of course, I will answer any questions you have.

Thank you. Just one for me, and it's a broad question, and I guess it could be a long answer, but I ask you to be as brief as possible. You've heard the testimony of both the Controller and the District Attorney's Office, which, quite frankly, to me, was convincing. Could just -- again, could you briefly sort of respond to that, particularly the whole duplicative concerns that both -- was raised by both offices. INSPECTOR GENERAL KURLAND: Okay. If I could first address the Controller's Office and the relation with the Inspector General. The Controller's Office, as 52 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 you're aware, does broad-based performance audits of every department every year. The type of audit that the Inspector General office does is not really an audit; it's a financial investigation. If we discover that somebody has been stealing money from a certain department, what we will do is go in, examine the books and records of the department, and try to determine how that person was able to steal the money. Then we would refer to the City Controller's Office the recommendation that they do a complete audit to try and determine, you know, what is in place in that department and try to present that kind of thing from happening again. But when the Controller's Office does a broad performance audit, they're not looking at an individual person and trying to determine whether that individual person committed a particular fraud. So that, I think, is 53 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 the distinction with the Controller's Office. As far as the District Attorney's Office goes, frankly, I am a little bit confused because we have been working hand-in-hand with the District Attorney's Office and have had many successful investigations in the last two years. We do have police detectives that are detailed to the Inspector General's Office, and those police detectives serve as the investigators for the District Attorney's Office. We had the case of Mona Lambertson, who stole cell phones and distributed them to her friends and family. That investigation was conducted with police detectives and investigators and then prosecuted by the District Attorney's Office. Similarly, the LIHEAP investigation was conducted with police officers, Inspector General detectives, 54 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 and then prosecuted by the District Attorney's Office. So we do work hand-in-hand with the District Attorney's Office. I know that there was some testimony about a concern with sharing information with non-law enforcement agencies. But, Councilman, there is -- there are requirements of grand jury secrecy that the Inspector General's Office is required to abide by. I personally was sworn in to the local grand jury during the course of the LIHEAP investigation; and so, we do work very, very closely. And I think the fact that we get involved early on in an investigation makes that investigation a better criminal case. When matters come into the Inspector General's Office as allegations, they don't walk in the door as criminal cases. We need to do a preliminary investigation, make sure the allegations are not baseless, and then 55 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 determine whether they are, in fact, administrative-type problems or criminal cases. And when they're criminal cases, we go directly to either the District Attorney's Office or the US Attorney's Office.

Okay. I appreciate that answer. And not to get into a back-and-forth, but I think the District Attorney's representatives did say that they didn't have a concern basically with you individually. I think it was sort of the codifying of this and the problems that could come up. And I think Councilman Kenney referenced that too. So I think that's the more broad concern, but I appreciate that. I will note for the record that Councilman Jones is here, but before I recognize him, Councilman Green and then Councilman Goode.

Thank you. When both the Controller 56 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 testified and the representatives of the District Attorney, they mentioned provisions of the bill which are also provisions in the Executive Order. And I'd just like to know -- you were here for the conversation so I won't repeat it -- whether or not you believe that currently police officers, if they're aware of any wrongdoing, are required to report it to the Inspector General if someone from, say, the City Controller's Office is working on something, whether or not they're required to report to the Inspector General, et cetera. And I read you section 6A of the Executive Order: All employees, officials of the City shall report promptly and directly to the OIG any knowledge, information, or allegation brought to their attention that any employee or former employee may have committed a criminal act or violated any provisions of the standard of conduct of 57 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 rules, et cetera, et cetera. INSPECTOR GENERAL KURLAND: That's correct, Councilman. And the Executive Order does not include elected officials, because under the Executive Order, we are an executive branch agency. The proposed language of the Charter change, because the jurisdiction is expanded, I believe that language is expanded. As a practical matter --

But my question is: Does the language in the Executive Order, in your opinion, apply to the Police Department today? INSPECTOR GENERAL KURLAND: To the Police Department? I think it could be read that way, but it certainly doesn't apply in practical terms.

Okay. What about employees of the City Controller's Office? INSPECTOR GENERAL KURLAND: No, because I don't believe they're a part of 58 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 the executive branch.

Okay. So the Executive Order was not intended to expand the authority to any -- any of your authority to any of the row offices or to the City Controller's Office or to the DA's Office. INSPECTOR GENERAL KURLAND: That's correct.

Okay. Thank you.

Could I just get a point of clarification? I'm sorry.

Councilman Kenney.

I just want to make sure I'm following the discussion properly. What Councilman Green's assertion is of the Executive Order, and you're somewhat in agreement with that, that it did not include those folks that we were just talking about. And then the 59 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Council legislation, as I understand it, does include them. And your amendments, proposed amendments, are taking it back out to make it more reflective --

No. 7

-- of the Executive Order? No?

No. The amendments are actually in two other areas, Councilman. They don't affect it. The amendments, which I think now are copies up there --

Yeah, I just got a chance to --

They relate to the funding issue --

Okay.

-- that we raised (indiscernible) as well as the discretion of whether or not the Council President is required to report -- people are required to report activity to the Council President.

Is there 60 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 agreement and positions that the Executive Order in the current legislation in the areas just discussed with Councilman Green, you folks agree that that's the case, relative to the criminal investigations, the City Controller's Office employees' responsibilities, the Police Department's responsibilities in reporting to the IG?

Let me just try to -- 'cause this is a little confusing. I think what Councilman Green was trying to point out is that the Executive Order has a certain limitation that has been expanded, I think, in the legislation.

Okay.

So as of right now, the two are not congruent in their reading. You have the Executive Order, which is an interpretation of the IG is limited to the executive branch, but it 61 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 is clear on plain reading of the statute that it would expand the jurisdiction.

So the proposed Council legislation expanded those two additional offices but not to Council? INSPECTOR GENERAL KURLAND: That's correct.

That's correct.

Fine. Thank you.

Thank you. Councilman Goode.

Thank you, Mr. Chairman. Mr. Armbrister, in the case of criminal investigations, the end-user is the District Attorney's Office or the Attorney General's Office. For non-criminal investigations, who or what is the end-user?

The end-user 62 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 of an IG's report?

An investigation, report.

Oftentimes -- and I'll let the IG respond as well. But oftentimes what happens is, the IG will issue a report to the department, the head of the department, and then it runs up the chain certainly in our area. And so, if it was something that happened in the Water Department, for example, the Water Commissioner, the Deputy Mayor, the Managing Director, the Mayor, and I would get a copy.

So for non-criminal investigations, it's considered to be a management tool. Would you characterize it as something more than a management tool?

Well, sometimes it becomes more than a management tool, depending on the activity that the person who's under investigation has undertaken. You know, 63 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 we've had situations where sometimes those things turn into criminal situations, unfortunately.

I'm saying for non-criminal.

Oh, okay. I said sometimes they do. But yes, it is often a good management tool, yes.

Ms. Kurland? INSPECTOR GENERAL KURLAND: I would agree, sir. The significant administrative investigations that we conduct usually recommends us making a recommendation for termination. Once the person is terminated, if our recommendation is accepted, oftentimes they appeal and go before the Civil Service Commission, and then we testify before the Civil Service Commission, explaining the investigation.

Thank you. Thank you, Mr. Chairman.

Thank you. 64 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Councilman Kelly.

Yes. Thank you, Mr. Chairman. I would just like to ask Mr. Armbrister and, of course, the Inspector General: You would have no 8 problem in seeing that the offices of City Council and its staff members are exempted from reporting to the Inspector General?

That's our testimony, yes.

I just wanted to put that on the record that both of you agree that they should be exempt.

Well, just to be clear, I think it's important to note that that was in my testimony, and that is the position of the Administration. An independent inspector general might have a dinner opinion.

Okay. And do you -- 65 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 INSPECTOR GENERAL KURLAND: We would abide by whatever is the Charter change. If the Charter change exempts City Council employees, we certainly would not have any --

You would have no objection. INSPECTOR GENERAL KURLAND: No. 10

Thank you. Thank you, Mr. Chairman.

Thank you. Councilman Jones.

Thank you, Mr. Chairman. And for the record, I go to all committee hearings where my schedule permits; it's not just germane to you. I sit in on trees and shrubbery and make comments just like this, so --

We can verify that. (Laughter.)

'Cause I 66 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 keep interested in these things. But I do have a couple of questions.

And A lot of trees have died as a result of you. (Laughter.)

I thought we got paid by the word so I wanted to make sure my per diem was right. So in all seriousness, can you explain to me the differences and intersections of responsibilities between you, the DA, the District Attorney's Office, the Inspector General's Office, the Ethics Board. I'm just -- after a while, I get a little confused about all of the agencies that are watching us and keeping us straight. Even though that is an important issue, I'm just curious as to, in these budgetary times, you know, is there a duplication at all? INSPECTOR GENERAL KURLAND: I'll be happy to answer the question very 67 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 briefly. And the Administration has prepared an agency overview that really outlines in a lot more detail what the different focuses of each of those organizations and gives examples, but I can hand that up. But basically, Councilman, the District Attorney's Office prosecutes only criminal cases; they do not deal with serious administrative matters.

Mm-hmm. INSPECTOR GENERAL KURLAND: The Ethics Board only deals with ethics violations, so they don't cover serious administrative violations or criminal matters. The Controller's Office focuses on auditing and improving efficiency in the government. Again, they don't deal with serious administrative matters. I believe the Inspector General's Office is the only one of those agencies that investigates wrongdoing among City employees when that wrongdoing 68 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 does not amount to a criminal violation.

So there is no duplication whatsoever? INSPECTOR GENERAL KURLAND: Oh, no. There certainly is overlap. There's always overlap among many different agencies, just in the same sense that the FBI, the Bureau of Alcohol, Tobacco and Firearms, the DEA, all have some overlap. So there is some overlap, but I believe that we have relationships between its Controller, the DA, and the Board of Ethics, and the Chief Integrity Officer where we would work together to minimize that overlap because we all, you know, definitely are in communication with each other.

And if I might just offer, Councilman, the existence of overlaps hopefully, there shouldn't be any gaps either.

Well, I guess my question is: Isn't there a way that we could have one-stop-shop ethics 69 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 governing over us all and not have so many confusing rules and regulations? I mean, I've got to believe that there is probably some administrative duplication and costs that we all are probably paying for, and I'm wondering if nothing more than in space allocation on these things could be synthesized and put together. It's just a question, and in tight budget times, I mean, it would seem to me that we would have an eye towards that. I understand the need to be independent of any kind of political and/or budgetary pressures so that you can clearly do your job, but I'm wondering if, in fact, there isn't some of that going on and if we could be more efficient in keeping us on the straight and narrow. The second question I would ask is -- and we had similar questioning, and I believe on relationships to the media and leaking of information, one of the 70 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 things was that the reason why there was so much communications with the press wasn't sensationalism, but it was in the name of transparency. And I'm wondering, is that similar for you that you guys -- because sometimes, you know, the line gets blurry for me. So... INSPECTOR GENERAL KURLAND: The Inspector General's Office does not release reports in the interest of the confidentiality. Once we make a recommendation to a department, say, that someone is terminated and the department acts on that recommendation, if the employee then begins litigation either before the Civil Service Commission or arbitration, then the matter would become public. But we do not release the reports.

And similar to your chart where you codified a lot of responsibilities, is there a process chart that -- of what the steps are by 71 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 way of what the graduating steps are towards the ultimate, which might even be a criminal pursuit of charges and also rights of people that are accused of crimes, similar to what the burdens are on the District Attorney when they bring charges of rights and responsibilities of the defendant. Is there a clear kind of guide that a individual has in redress and recourse provided them? INSPECTOR GENERAL KURLAND: Well, under the Executive Order, under which we operate right now, individuals are required to cooperate with the Inspector General's Office. That goes hand-in-hand with whistleblower protection. If they cooperate, they will not be retaliated against for cooperating. It also goes hand-in-hand with the prohibition against bringing frivolous charges or making an allegation that is simply not true. 72 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 So that's --

I just -- I don't hear my question being -- (Indiscernible; parties talking over each other.) INSPECTOR GENERAL KURLAND: Okay, I'm sorry. I may have misunderstood.

Clearly in this process, there is a -- there should be a chart of graduated investigatory processes that may even lead up to criminal charges. INSPECTOR GENERAL KURLAND: Okay.

And corresponding, is there a chart of rights to a person who is being accused, who lives under that cloud of suspicion, and what their redress and recourses are? INSPECTOR GENERAL KURLAND: As far as the graduated investigation, I believe that any allegations that come to the Inspector General's Office we make 73 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 several determinations. First, if it's an anonymous tip, we look for some kind of corroboration before we proceed on that. If we do proceed, we have to determine whether it's an administrative matter or whether it should go to the District Attorney or the US Attorney as a criminal matter. So those are the steps that we would take.

Councilman, I think outlining what those steps would be, I think your question is whether or not something like that exists for the person who might be under investigation that they could look at. And I take it, your answer is, it probably doesn't exist, but we could -- it's certainly something that could be created. INSPECTOR GENERAL KURLAND: Exactly. I mean, clearly, a person has a right to refuse to incriminate themselves under the Fifth Amendment if it's a 74 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 criminal case. If it's an administrative case --

I think that is one aspect of it, but even if they want to cooperate, even if they are willing to cooperate, what I 0-I guess what I'm reaching for is, what are their rights, appellate rights, what are their abilities -- for example, what vexes me in most law enforcement processes is that you coul get into more trouble not from what you did but what you tried to kind of get clarity on from people. So if you talk to somebody while you're doing that, that is a indication of a possible -- what is that, the term you use, impeding upon a investigation or trying to do that. And so, the person often is, like, defenseless to say, to talk to, to ask what's going on until such time as, quote, the investigation is done. And that kind of is not the rule, I understand, our most of our laws 75 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 are based upon. They have certain rights. And in this case, I'm wondering if there is a clear understanding of what those rights are. INSPECTOR GENERAL KURLAND: Well, first of all, that's -- what you stated is the very reason why our investigations are confidential. We don't want somebody to be tainted by some kind of allegations unless those allegations are proven.

In the real world, and I happen live in that world, the minute you start, taint begins. And all I'm saying -- and sometimes -- not in my case, but some of 'em are justifiable, and I'm not -- I just want to create that scale of justice that says that here's what you are allowed to do: You can go get an attorney, you could go do these things, so that it is clearly spelled out, so that people don't live in a state of flux 76 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 while you take your time and process this, as you should, to investigate stuff. So either there are rights or they're not, and they should be known if they are. INSPECTOR GENERAL KURLAND: We can certainly put together something like that, Councilman.

Thank you. Thank you, Mr. Chairman.

Thank you, Councilman. Anyone else? Any other questions? (No further questions or comments.)

Thank you both very much. INSPECTOR GENERAL KURLAND: Thank you.

Our next witness is Brian McCormick. (Witness comes forward.) 77 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140

And Mr. McCormick, while you're coming up, we have your written testimony; I know you kind of combined everything together. If you could just summarize maybe in this portion your feelings on the Inspector General piece, I'd appreciate it. MR. McCORMICK: I will.

Thank you. MR. McCORMICK: Thank you very much. Good afternoon. My name is Brian McCormick, and I'm one of the nine members of the Mayor's Task Force on Ethics and Campaign Finance Reform, which submitted its final report and recommendation in December of 2009. Unfortunately, our chairman, Michael Schwartz, could not be here today because of a prior commitment, but I've been asked by the Task Force to testify in his place. 10 LAW & GOV'T, BILL 100123, RES. 100140 September of 2008 by Executive Order of Mayor Michael Nutter. The Task Force was directed to perform a comprehensive review of Philadelphia's campaign finance and ethic laws, hold public hearings, receive information and recommendations from the public, and ultimately provide a report to Mayor Nutter and Council President Verna setting forth recommendations regarding improvements, changes, and/or amendments to the existing campaign finance and ethic laws of the City. The Task Force produced its final report and recommendations on December 10, 2009. I would like to believe that the Task Force's final report provided some of the guidance and impetus for today's hearing and the ethics of campaign finance initiatives that were introduced in City Council earlier this month. 10 LAW & GOV'T, BILL 100123, RES. 100140 touch on several of our recommendations. As such, I would like to offer the Task Force's thoughts and opinions on those issues. And as I just spoke with you, Councilman Greenlee, I'll speak simply on the Inspector General part now. Finally, I would like to congratulate and thank City Council for moving forward with this ethics and campaign finance reform. While there are some differences between the Task Force recommendations and the ethics package introduced two weeks, including parts of the resolutions and ordinances that are the subject of today's hearing, a number of the issues in the ethics package appear to be very similar to our Task Force recommendations. In any case, we are glad that City Council has raised these issues and is moving forward. 10 LAW & GOV'T, BILL 100123, RES. 100140 independent inspector general to investigate allegations of fraud, corruption, and misconduct; thus, the Task Force applauds City Council for its resolution to create an independent Office of the Inspector General that is provided for in the Home Rule Charter. The Office of the Inspector General has been in existence for more than twenty years but owes its existence to an executive order; thus, the Inspector serves at the General discretion of the Mayor and has no 15 authority to investigate wrongdoing by other elected officials. That should be changed. The Task Force believes that independent oversight by an inspector general with investigative resources is absolutely necessary to show the public that the past and future reform measures are real and not just window-dressing. 10 LAW & GOV'T, BILL 100123, RES. 100140 General must be authorized to investigate allegations of fraud and misconduct in all branches of City government. This appears to be at odds with Subsection H of the proposed ordinance regarding the Inspector General's powers and duties. As with almost all of its recommendations, the Task Force based its proposal here on the principle that all City employees and officials should be subject to the same rules. Further, the Task Force recommended that the position of the Inspector General be an independent office, similar to the Board of Ethics, and should be set for a term of office unless there's just cause for early removal. The Task Force recommended a five-year term, with a second term being permitted. The proposed ordinance 23 appears to adopt that suggestion. 10 LAW & GOV'T, BILL 100123, RES. 100140 her findings to the Ethics Board for consideration of whether penalties should be imposed.

The Task Force has reviewed similar positions and ordinances in a number of cities, including New York, Miami, and Chicago, and suggested that the City Council and the Mayor review the scope and legislation creating those offices when considering the position for Philadelphia. The provision in Subsection H of the propped ordinance appears problematic. While the Task Force would agree that the complaints should be referred to any appropriate federal, state, or local law enforcement authorities, the Task Force would also suggest two revisions to the proposed ordinance. 10 LAW & GOV'T, BILL 100123, RES. 100140 Councilmember to the Council President. The protection and confidentiality of investigation and the underlying allegation should be paramount. The Inspector General must have the authority to withhold serious allegations which he or she has referred to local, state, or federal prosecutors, from the Mayor and City Council President and all other City officials. Second, the ordinance should be amended to add a provision that complaints can also be referred to the Board of Ethics where applicable. Finally, the Task Force expresses concern that the ordinance does not provide for a guaranteed source of funding for the Office of the Inspector General. For the Office of the Inspector General to work as it should be, it will need to be funded with a guaranteed source of funds and not be forced to justify its staff resources, et cetera, on an annual basis. 10 LAW & GOV'T, BILL 100123, RES. 100140 be made a part of the ordinance. The establishment of an independent and funded Office of the Inspector General is an important step in the right direction for the City. With the amendments and modifications that I have suggested and appear in the Task Force report, the Task Force Task Force would urge City Council to adopt a Charter change necessary to establish an independent and properly funded Office of the Inspector General. Thank you for the opportunity to be heard in this matter.

Thank you, Mr. McCormick. Councilman Green.

Thank you, Mr. McCormick. I know the Task Force worked hard over a long time to produce the report. Obviously, we have been looking at it for six to eight months and came together with a group of proposals that we thought could move forward on 85 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 City Council. I just wanted to ask you two quick questions. MR. McCORMICK: Sure.

The first is: Are you aware that of the major 8 cities in the country, six have inspector 9 general's offices, and only one of those 10 jurisdictions has -- does the Inspector 11 General have authority over the 12 legislative branch of government? 13 MR. McCORMICK: I'm not aware 14 of the exact number of cities that have 15 them. But in the cities that we 16 apparently looked at -- and I must 17 confess this was not my area of 18 expertise. As you know, when the Task 19 Force was set up, we were set up with 20 different subcommittees. 21 But I know that these cities at 22 our size that we felt were comparable to 23 us had the legislation. 24

Yes. Only 25 one, only one had an inspector general 86 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 that had authority or jurisdiction over the legislative branch of government. So I just wanted to make that clear for the record. Thank you very much.

Thank you. Councilman Goode? Wait a minute. Councilman Goode has a question. Councilman Goode?

Thank you, Mr. Chairman. Mr. McCormick, I'm going to ask you the same question I asked the Administration. For non-criminal investigations, who or what is the end-user of the work done by the Inspector General's Office? MR. McCORMICK: I can't speak, Councilman Goode, to the specifics like you just heard from Inspector General Kurland and Mr. Armbrister; I simply can't give you the definition. We felt like the interaction 87 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 that we heard from the people that testified at the different -- that came and spoke to us about this position --

So it's very possible that they'd understand what they wanted in terms of who or what the end-user would be. MR. McCORMICK: Who? Who is not sure?

The people who you said testified. I'm asking you, as a result of the Task Force work -- MR. McCORMICK: Right.

-- for non-criminal investigations, who or what is the end-user of the Inspector General's work? MR. McCORMICK: And I don't know what you mean by "end-user."

What's the purpose for the Inspector General's work? Is it a management tool, or is it something other than a management tool? MR. McCORMICK: (No immediate 88 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 verbal response.

Okay, thank you. Thank you, Mr. Chairman.

Any other questions? Councilman Kenney.

Yeah, I just want to make sure you understand that all of this discussion relative to confidentiality is critical. And I'll reiterate what I've said to a previous witness: In this particular situation, I don't have a problem with being sure that this group of folks are not going to be leaking stuff to the press. I mean, so for the next two, probably six years from now, as long as this group is in place, I don't really have a problem with the issues relative to City Council. Going forward, however, once this is institutionalized from a Charter change amendment or a Charter change 89 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 approval by the voters, I don't know who the next mayor's going to be, and I don't know whether or not the next mayor's going to appoint an Amy Kurland to that post. And if that person that's appointed to that post is more political than not or can be political, I don't have a lot of confidence that information about people, staff, or individuals that are -- allegations that are made may not wind up over there at that table (pointing to press seats). And they don't do anything wrong; they're just going to write what they think is accurate and what is given to them. So in this particular set of circumstances, I'm very confident that anything that they look at will be handled appropriately. I just wonder what's to come in the future, when you have a political more mayor who makes more political appointments potentially, and that this office could potentially 90 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 become kind of your political rival. And, again, I'm going to say it good again: It is not now, nor would I expect it to ever be, as long as they're here. But I don't know what the future brings. And once you do that, once it's a part of the Charter, getting it off the Charter is much harder than getting it on. And I don't know where I'm going to be on the final legislation, but it's just -- I don't know -- and how long I'll be in office. But I just know, going forward, the potential, the potential of it being a political tool is really strong, or at least strongly possible. Not now, but going forward. And that's my biggest concern. MR. McCORMICK: Well, I can't address that concern. It's safe to say that --

It's rhetorical. You don't have to say anything. 91 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Thank you.

Thank you. Thank you, Mr. McCormick. Any other questions? (No further questions or comments.)

The last witness I have on record is the Committee of Seventy for this bill and resolution. (Witnesses come forward.)

Good afternoon. I'm Zack Stalberg, President of the Committee of Seventy, which is a nonprofit, nonpartisan group interested in plain and effective government and fair elections. This is Ellen Mattleman Kaplan, who is the Vice President of the Committee of Seventy. In accordance with the Chairman's request, I'll just deal with the part of my testimony that refers to the Inspector General. I hope you'll read the whole thing because, among other 92 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 things, it includes some praise of City Council, which I'd hate for you to miss. (Laughter.)

The Committee of Seventy urges City Council to defer action on the proposed Charter amendment dealing with the Inspector General. To be clear, Seventy supports a charter-sanctioned independent Inspector General with jurisdiction over the entire City government. The pending legislation would preclude the Inspector General from investigating the legislative branch, but wrongdoing can and has happened throughout City government. More importantly, tabling the proposed Charter amendment would give Council an opportunity to help clarify the responsibilities among the various political officials charged with monitoring government integrity. Council has properly questioned the roles and cost of these official watchdogs on several occasions. 93 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 Seventy, too, has raised the need to define the division of responsibilities among the Board of Ethics, the Inspector General, the Chief Integrity Officer, the City Controller, and the District Attorney. Given the economic necessity for all entities in City government to function most effectively, it is important to ensure that there is no 12 duplication of efforts or waste of taxpayer dollars. It is also essential that the public, including whistleblowers, know precisely which office to turn to. I would add that if there is deferral of this legislation, I would hope that the language in the current bill that deals with whistleblowers is converted to a separate ordinance that protects the rights of whistleblowers. The pending legislation essentially reflects the powers and duties of the Inspector General as they 94 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 currently exist. There is no compelling reason to rush to place the Inspector General question on the May ballot.

Any questions? Councilman Goode.

Mr. Stahlberg, the same question: For non-criminal investigations, who or what is the end-year of the Inspector General's work?

I think the Inspector -- and I though hope this goes to your question, because too, I'm not sure about the "end-user" term, but I believe the --

Who's supposed to do something with it?

I believe that it's valuable -- it is valuable to the public if the Inspector General is investigating issues and problems that none of the other watchdogs are using or doing. 95 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140

That does not answer the question.

I think it's valuable to the public if these issues are exposed. I think it's definitely a management tool, as you suggest, and it can lead to prosecution.

I said, for non-criminal investigations, who or what is the end-user?

I'm afraid I can't give you a better answer than any of the previous witnesses.

If there's not an end-year, then what's the purpose? Actually, the Administration gave a very good answer; they said it's a management tool. The Inspector General said that the recommendations usually lead to termination. So beyond it being a management tool, is there some other purpose for it? Is there some other end-user?

I think the 96 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 public awareness of problems within City government means that the public is a valuable end-user, but the notion that the strongest use is a management tool makes sense to me.

Thank you, Mr. Chairman.

Thank you. Seeing no further questions --

I'd like to --

Yes?

Even though Councilman Kenney didn't ask this question, can I answer the question that you asked the other witnesses?

You're there. Which one?

Having to do with the future.

Oh.

I just wanted to say that I think that there are a number of things in the Charter that one could 97 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 be concerned would not be a problem at one time in history but may be a problem at another time in history. I think that there might be some who would say that the strong mayoral form of government could be fine, depending on who the Mayor is but may not be fine depending on who a future mayor is.

And I appreciate your point of view, but I don't think that's an apple and an apple, because what we're talking you about here are folks, whether they're employees or whether they're elected officials, the court of opinion, than if you have an inspector general that is prone to be political that's been appointed by a very political mayor and is prone to pick up the phone and allow people to have information about ongoing investigations or allegations that have yet to be founded, sometimes that information spins out of control so that the genie never 98 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 gets back in the bottle, even when there's a finding of no wrongdoing. And what happens is, over the course of -- and, again, this hasn't happened because I don't expect it to happen in this administration. When that information gets out and spun, there's a period where the investigation is ongoing. They can't conclude ill -- wrongdoing or not until they get to the end of the process. In the meantime, you could wind up with five or six different stories that already have given the public an opinion about you that you're somehow -- where there's smoke, there must be fire. And I think that's a very dangerous thing in a political world. When it comes to -- I don't think you're going to likely have a leak, so to speak, or, you know, a plumbing inspector or an L&I inspector that happens to be accused of doing something wrong. I don't think -- I think the 99 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 public cares about whether it's true or not, but I don't think the public would be as pruriently interested if it were not a public official. And I do think that that's a danger that I worry about. I mean, having a strong mayoral form of government, I mean, you can argue one way or the other, who the administration is, whether you're happy with that or not. But when it comes to your own reputation and your potential continuation in office, even if you've done nothing wrong, I think if the Mayor at that time was that prone to be that political and appoints people politically to positions, I think it could be a disaster.

Well, I might suggest that in the IG proposal that was introduced a couple of year ago, they certainly called for mayoral appointment followed by a Council confirmation. And I don't know if that would 100 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 really address the concerns that you had, but there are --

Look, again -- (Indiscernible; parties talking over each other.)

-- there is a possibility for Council to have a role as it does, for example, with the Ethics Board.

It's difficult to imagine this in this particular situation here, because it's -- I don't think it's going to happen, I know it's not going to happen. But, I mean, I think of past mayors, which I will not name, or future mayors that I do not know about that an anonymous phone call to the IG starts an investigation that could be prone to be leaked to a member of the press that then starts a series of suppositions that wind up in ending a career that, you know, may have not have needed to be ended. That's 101 3.15.10 LAW & GOV'T, BILL 100123, RES. 100140 all. I mean, again, it is a -- it is prospective, and I don't know if it's ever going to happen, but it's a little frightening.

I appreciate your point.

Thank you. Any other questions? (No further questions or comments.)

Seeing none, thank you. Is there anyone else here to testify on this bill and resolution on the Inspector General? (No response.)

Seeing none, before we go -- because I know there are some people that are here just for this bill, just for the Inspector General issue. Given a lot of the concerns that were raised by a number of 102 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 witnesses, I'll officially announce at the meeting that the bill and resolution 4 on the Inspector General will be held to the call of the Chair. Now we're going to take up the other bill and resolution that's dealing with the political activities. Miss O'Connell, will you please read that bill and resolution.

Bill No. 100121, an ordinance providing for the submission to the qualified electors of the City of Philadelphia of a proposed amendment of the Philadelphia Home Rule Charter set forth in the resolution approved by Council relating to restrictions on the political activities of City officers and employees, and authorizing the appropriate officers to publish notice and to make arrangements for the special election. Resolution No. 100139, a resolution proposing an amendment to the Philadelphia Home Rule Charter relating 103 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 to the restrictions on the political activities of City officers and employees, and providing for the submission of the amendment to the electors of Philadelphia.

Thank you. The first witness will be Professor Seth Kreimer, but I'd just like to make a few very brief introductory remarks in conjunction with Councilwoman Tasco, who is the sponsor of this bill 14 but is in a National League of Cities meeting in Washington. First, based on the input from a number of parties, we plan to amend this bill today in committee to provide that the Charter change question would appear on the November, rather than May, ballot. Secondly, we plan to schedule a hearing on the companion ordinance, which is Bill No. 100128, in the coming months, and well in advance of the voters taking 104 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 up the Charter change question, again, which will now be held in November. Third, based on further discussions among Councilmembers as well as feedback from key stakeholders, we plan to amend the companion ordinance, Bill No. 100128, so that it sets up a bifurcated system of political-activity restrictions along the lines of the federal Hatch Act, which makes a distinction between further restricted and less restricted employees, depending upon the type of job function performed. And, again, that will come when that bill 16 is taken up. But, again, this bill we're going to have amended -- we're going to propose an amendment to have it up on the November ballot. Councilman Green, do you have an opening statement?

No. 24

Oh, I'm sorry. Okay. 105 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 Professor Kreimer, I appreciate your time coming here. Sorry you had to wait a little bit, but it was a long hearing. I know your background is a constitutional law professor. My understanding is, you're here basically to answer questions we might have. Is that basically accurate? I don't know if you had any opening things you wanted to say. PROFESSOR KREIMER: Yeah. I do have some --

I'm sorry. First identify yourself for the record. PROFESSOR KREIMER: Right, I'm sorry. My name is Seth Kreimer. I teach constitutional law at the University of Pennsylvania Law School. Let me give you -- I've been asked to come and speak about the constitutional law background to the issues before Council.

Okay. 106 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 PROFESSOR KREIMER: And what I'll do, with the permission of the Council, is to make some opening remarks --

Sure, good. PROFESSOR KREIMER: And then answer questions.

Very good. Thank you. PROFESSOR KREIMER: So the story begins in the early 20th century, at a time when public employment was viewed as a privilege that could be denied on any grounds. The initial limitations on political activity were adopted in that environment, in the situation where it was thought that by making themselves party to an employment contract, the employee had essentially forfeited any First Amendment rights. 10 LAW & GOV'T - BILL 100121, RES. 100139 citizens don't forfeit their constitutional rights by accepting public employment. The rights to participate in public discussion, mobilization, and dialogue are cherished rights of American citizenship; they lie at the heart of the First Amendment. And public employees cannot be broadly stripped of that right simply by joining public service. Second, with respect to matters of public concern, the employee's interest is augmented by the public interest in making sure that public employees' voices are heard. Public employees are likely to be particularly knowledgeable about certain areas of public affairs, and the Supreme Court has observed that their participation is necessary for informed, vibrant dialogue in a democratic society. 10 LAW & GOV'T - BILL 100121, RES. 100139 of the employer against the intrusion on the interest of the citizens and the public. The government can't prohibit speech on matters of public concern simply because it is uncomfortable or politically inconvenient or might pose some possible difficulty. It has to justify particular levels of constraints by demonstrating an adequate employment- related reason for imposing those constraints. Government employers have to demonstrate a real danger, as the court says, far greater than mere speculation. With that background, let me say a few words about what the Supreme Court has said about limitations on political participation by public employees, and then I'll turn to talk about the current City Charter. The federal Hatch Act, adopted in 1939, was upheld by the Supreme Court in 1947 and again in 1973. 10 LAW & GOV'T - BILL 100121, RES. 100139 was to prohibit public employees taking an active part in political management or political campaigns. The concerns behind the Hatch Act that justified this imposition were threefold: First of all, a concern with impartial execution of the law that public employees not be in a position to either reward political allies or to punish political opponents. Second, a concern that public employees, at least in the merit civil service, have the opportunity to advance on the basis of merit free from political pressure. And third, a concern that the political public service not be the basis for what the court referred to as the establishment of a powerful, invincible, possibly corrupt political machine. 10 LAW & GOV'T - BILL 100121, RES. 100139 was suppressed. The Hatch Act reserved the right to express opinions on all political subjects. Senator Hatch specifically rejected the prior provision that limited the right to privately express opinions, okay? Second, the implementing regulations in the Hatch Act specifically permitted the expression of opinion as an individual privately and publicly about political subject and candidates. Second, it specifically allowed the display of political pictures, buttons, or badges. And, third, it allowed the making of financial contributions. The Supreme Court, in Broderick against Oklahoma and the -- in the letter carriers case, in 1973, suggested that in the absence of these constraints, the statute could well be overbroad. Now, by contrast, the City Charter, as currently written, is substantially broader than the Hatch Act. 10 LAW & GOV'T - BILL 100121, RES. 100139 First of all, Police and Fire Department officials are prohibited from making contributions.

And indeed, as to that, the Eastern District of Pennsylvania has held that that prohibition addressed to firefighters is based on mere speculation and violates the First Amendment. It seems to me quite likely that, if challenged, the same would be true for the police officers. Second, the City Charter, as currently written, prohibits taking any part in the affairs of any political campaign, not just active management. And it makes an exception only as to privately express opinions. This was the language that was rejected by the Hatch Act in 1939, and it was that rejection that partly made the Hatch Act not overbroad in the view of the Supreme Court. 10 LAW & GOV'T - BILL 100121, RES. 100139 all, prohibit wearing of badges or displaying lawn signs. That, it seems to me, is clearly improper under current law. Second, the implementing regulations prohibit, quote, writing for publication or publishing any letter or article for or against any political party, body, or candidate. It seems to me that that prohibition interferes with the opportunity of the public to obtain the wisdom of any City employee regarding any political campaign or any political body. In an era like the one we live in, what exactly does it mean to publish a letter? Is it sufficient to post it on a blog? to e-mail it to three friends? to post it on Facebook? to put it on Twitter? 10 LAW & GOV'T - BILL 100121, RES. 100139 potentially covers a great deal of speech by public employees is a substantial concern. Now, turning to the question of justification for the current system, the -- let's remember that limitations on speech by public employees on matters of public concern has to be justified by something far stronger than mere speculation. Since 1993, the federal government has substantially withdrawn its limits on public participation by most public employees. I would submit that it is worth taking a look at whether that withdrawal has had any of the negative effects that upheld the original Hatch Act. Secondly, the Mayor's Task Force notes that most other cities have rules substantially less constricting than those that apply in Philadelphia. 10 LAW & GOV'T - BILL 100121, RES. 100139 determine whether or not those more speech-permissive rules have resulted in any substantial adverse effects much. Third, I think it's worth noting that the current prohibitions, as I understand it, were adopted by a referendum in 1951 and were modeled on a statute that was a promulgated -- or a proposed statute promulgated in 1919. That's almost a hundred years ago. It seems to me entirely appropriate that the Charter be amended to allow the City Council to tailor the constraints on speech by public employees to demonstrated needs in the 20th century -- 21st century. In my opinion, if the current broad Charter prohibitions are not revised, it is likely the federal court may revise them as a matter of First Amendment law.

Okay, thank you, thank you very much. Councilman Green. 115 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139

Thank you, Professor. You went through the current political-activities restrictions in the Charter; I won't repeat them. And I believe you mentioned the test from your speculation or -- but could you tell us what a court would look at to determine whether a restriction on a public employee's First Amendment speech was permissible? PROFESSOR KREIMER: The court would look at two sets of concerns. First of all, how narrow the restriction is, how much it impinges on the ability of public employees to engage in core political speech. The more that's -- the more that speech is constricted, the more justification would be required. On the other side, the court would look at the -- both the demonstrated record and the likely effect of the constraint in question. So that in answering the question of whether or 116 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 not, for example, prohibiting someone from posting a Facebook update saying they support Barack Obama, the court would look at the question of whether or not there's any demonstrated track record or evidentially-based threat to the public interest.

Under the Pickering Balancing Test, would it be permissible to draw a distinction between categories of employee, in your view? I understand, you know, you're not the court. PROFESSOR KREIMER: They haven't put me on the Supreme Court yet. Even if they did, I'd only have one vote.

You couldn't answer my question if they had, so -- PROFESSOR KREIMER: That too.

Based on their work functions and further limit the type of political activities that employees would say adjudicatory, prosecutorial, or any sort of enforcement 117 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 authority has creating a similar test to, say, the federal Hatch Act in terms of more permissive and less permissive activities, for example -- PROFESSOR KREIMER: Yeah, I think it's certainly the case that in implementing the Pickering Balance Test, the courts do treat dangers of different employees differently. So, for example, there was a case in 1987 called Rankin against McPherson that involved a probationary employee whose job in the constable's office was to type information from court papers onto a computer. And she was fired because, when she heard about the attempted assassination of President Reagan, she said, "If they go for him again, I hope they get him." Now, the court acknowledged that if a police officer said something like that, that there would be substantial concerns that you wouldn't be 118 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 able to rely on the police officer to fairly enforce the law against murder. On the other hand, the court said, for someone who enters material into a computer, those concerns are nowhere -- don't justify the sorts of imposition. So that making distinctions on the basis of job function, it seems to me, is both approved by the Supreme Court and entirely appropriate. Indeed, as you say, in the revised Hatch Act, the 1993 Hatch Act, the federal Hatch Act does exactly that.

Okay. So people performing, say, an administerial function or a word-processing function or something like that would be at the far end of the spectrum as to having the least restrictions on their speech. PROFESSOR KREIMER: Yes.