Concerned? I think we're concerned about the appearance that the delivery of services to the public are compromised in any way by politics, purely politics.
Sure. And the reason I bring that up -- and, again, she's here and if she wants to testify herself, but the Mayor's Chief Integrity Officer, right? I'm quoting from her in January of 2009, before the Ethics Task Force. And I 190 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 don't think I'm taking anything out of context, but I won't read the whole thing; anybody, you know, can read it. It talks about the section on political activity. "It's just about the most restrictive provision in terms of political activity I've ever heard of." It goes on to say, "I think it's unfair and unenforceable." A little later on it says, "I know when I worked at the federal government for twenty years, we had..." Now it says here "a Hatch check." I think they mean "Hatch Act."
I think it was mistranscribed. "... which worked pretty well, and I would suggest that something like that would work well here too." Now, obviously, nobody is -- you know, this is a representative of the -- I think it indicates that a lot of people think there's a problem here. 191 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 Now we can debate exactly how far we should go and whether we should have two tiers and all of that kind of thing. But, you know, there's -- clearly, it seems to a lot of people that there is a problem here, and it's just too restrictive.
And, Councilman, I think -- and I do again want to, maybe for the second or third time, underscore the position of the Administration regarding the broad definition of "political activity" and on the continuum what we talk about as "political expression," that clearly, it is the view of this administration that the interpretation of the Charter, as it relates to political expression, probably had gone overboard. And we are willing to engage in a conversation with this council about how those restrictions or, as we suggested in my testimony, that the Ethics Board maybe take another look at 192 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 that interpretation of political activity as it relates to political expression.
And then with respect to political activity, I think -- and as it relates to the Hatch Act -- and I know there was a lot of discussion from the previous witness about that, that the delivery of federal -- of services at the federal level, we think, and the delivery of services at the local level are fundamentally different in terms of the interaction between the person delivering the service and the person receiving the service; and therein, we think, lies the problem on the local level. And we think in that context that it is not inappropriate for the City to be more restrictive as it relates to its employees in the Hatch Act. And I'm really interested in seeing the kind of two-tiered proposal that the Council may come up with. I mean, maybe this 193 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 becomes, you know, a moot issue; I don't know since I haven't seen anything. But that really is the fundamental philosophical issue is that at the federal level, the -- and even in the amendments that were made by Congress post 1937, I think it was a general recognition that delivery of services by federal employees to citizens maybe don't touch the individual citizen as much as the delivery of services at a local level.
Okay. I guess there's some disagreement there. One last question from me, and I know Councilman Green has a question. The boards and commissions issue, what is your feeling on that? Should there be differences as far as your restrictions on members of boards and commissions?
Well, it kind of depends. And, again, I think -- that's why I think there needs to be a 194 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 careful analysis of the work that the particular board or commission does. I mean, obviously, boards and commissions that provide privileges or could withhold privileges or permissions and things like that that are ultimately governmental in nature, I think you may want to look at those differently than you do from boards and commissions that are purely advisory that don't have any real substantive governmental function other than providing, you know, maybe advice and don't withhold privileges or grant permission for certain things. I think that there's an opportunity to make some distinctions there.
Thank you. With respect to your discussion that there's a different interest at the City level because people are involved in local politics, what is the interest in 195 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 the City of Philadelphia in regulating whether or not someone can be politically active in the campaign of someone running for Congress or US Senate or the president?
Well, in many respects, as I've heard many politicians say, all politics being local, I mean, I think that that might be the interest there. I mean, it's essentially a local issue.
But you just testified that the federal employees don't do their work in communities; city workers do, and.
But that is -- (Indiscernible; parties talking over each other.)
But that's not a delivery of service; you're actually talking about an active campaign. I thought that was the premise of the question.
Sure. But, 196 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 I mean, what interest does the City have in limiting someone's political campaign activity for someone running for US Congress?
Because I think, as I stated before, the underlying premise of a lot of politics is that politics is local and you start at the local level, and that if, you know, a political campaign in which there are local, you know, committee, ward organizations that lead up to the state --
That's not the question; the question: Is what interest does the City have in preventing a clerk-typist employee in the Streets department from working actively in the political campaign of someone running for US Congress? That has nothing to do with parties; this is an employee working --
You say it has nothing to do with parties? 197 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
But it would be an active partisan campaign? Or are you talking --
Well, of course it would be. A person running for Congress is a member of a political party.
And there could be a local political organization that --
But that's not the hypothetical; the hypothetical is, an employee wants to go work for Patrick Murphy.
As part of his active political campaign. What interest do we have in preventing that 198 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 person from doing so?
Well, I think it goes back to the issue regarding the -- the perceptions and whether or not people will perceive that taking one position versus another position might affect the delivery of their service on a local level.
Well, I mean, for a clerk-typist in the Streets Department, what interest is there --
I don't know. Who's Mr. Murphy running against? It may be his supervisor that's supporting the other candidate or maybe -- (Indiscernible; parties talking over each other.)
Or maybe their neighbor walks -- you know, is coming in for, you know, some service or can't get their phone answered; I don't know. But those are really the kinds of --
I agree with 199 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 three words of your answer to that question: "I don't know." With respect to the Administration's argument that most federal work does not take place in our communities, and the Hatch Act does not fit at the local level, are you aware that the Hatch Act requirements apply to state government and nonprofit employees whose positions are funded in whole or part with federal funding?
Okay. And are you aware that there are many federal employees that work directly in our community?
Have you ever had a problem with a postal worker delivering your mail because of a lawn 200 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 sign?
I don't know, I don't know. I've had a lot of problems with my postal service delivering mail; maybe it is because of my lawn sign; I don't know.
The federal Hatch Act applies to them, PHA employees. Head Start employees, they work pretty directly in our community.
I mean, so, are you maintaining that distinction or are you...
Yeah, I would maintain that on a very broad level that that distinction still is applicable.
So it's your position that the Hatch Act doesn't work for PHA employees or Head Start employees 201 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 or postal workers because they work directly in our community.
And that the federal government needs to change its law because we have people working in the community who shouldn't be because the Hatch Act is too permissive.
Well, the example you gave me earlier had to do with someone who was running and wanted to be a part of a campaign, which I think is distinguishable from what you're describing now.
So I guess I'd ask you the same question with respect to a candidate for governor and why, and I assume your answer would be the same, so I won't go down that line of 202 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 questioning. Can you describe how someone is promoted in the City of Philadelphia if they're a civil service employee?
That's right. A bunch of people take an exam, and how many people can be chosen for any one open position? How many --
And so, the Rule of Two was -- why was that put in place? Why such a restrictive use? I mean, the Committee of Seventy has come in, you know, and publicly said that we should have a less restrictive rule. Why do you think we had such a restrictive rule in our civil service?
I'm not sure I 203 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 know the origins of the Rule of Two.
Well, I would argue that it prevents just the sort of conduct that you were concerned about with respect to supervisors favoring people and not favoring people, not just with respect to political activity but with respect to all sorts of activities like, This guy's my hunting buddy. This guy's my bowling buddy. This guy's my whatever. And that you're applying to political activities a different standard in terms of promotions or if somebody's going to get punished for this or that activity, for not supporting a candidate; you want to have a different rule for that than you want to have for somebody who's somebody's bowling buddy or somebody's fishing buddy. And this rule is the restriction of free speech.
Well, I'll answer that in a couple respects. 204 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 One is that a lot of -- those are the examples that we were relating to in our testimony related to the delivery of services. And I think one lost beneficiary of the current Charter provision that we haven't focused a lot of attention on are those people -- I mean, you Councilmembers have talked a lot about those folks who would like to participate in political activity who currently cannot because of the rule, who knowingly took the job, knowing that they would be restricted. But there are probably as many, if not more, employees who took the job, in large part, because they are, in fact, free of that pressure or perceived pressure. And we shouldn't lose sight of those employees as well.
I base it on the opinion that a lot of people would -- 205 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 who --
No. I mean, you just made a statement about how many employees feel --
I said there may be employees who are beneficiaries of the rule because they don't want to participate.
And for those employees, are their current restrictions in state law and local law that would prevent the kind of activity that you're concerned about?
Well, of course there are. There are civil service protections, there's anti-macing statutes at the state level; you know, there's all sorts of laws that apply to 206 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 those people. So when you boil it all down, what you're saying is, you don't trust City Council.
Okay. With respect to the bifurcations that we've been talking about in trying to make distinctions between people who have administerial duties, like a clerk-typist in the Streets Department and, say, a peace officer or, say, some L&I inspector who's out on the street, et cetera, is that a distinct that the Administration is willing to look at and perhaps engage in a dialogue that --
Do you think it's possible for us to come up with clear definitions of who political- activities restrictions should apply to and who they shouldn't apply to with respect to City employees? 207 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
Well, on behalf of the Administration, we're certain encouraged by the announcement that the chair gave earlier today, that this committee and the sponsor is willing to kind of slow down a little bit. We were very concerned about the speed with which the Council was moving. And any discussion in which we have an opportunity to actually sit down and talk to you about these provisions would be welcome.
My question wasn't about the speed, though; my question was whether or not --
And I think my answer was that we would welcome the opportunity to sit down and have a dialogue with Council about all of these provisions.
So you believe that it is possible that the Administration could agree to a distinction -- 208 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
We would welcome the opportunity to sit down and talk with the Council about all of these revisions.
Thank you. Any further questions? (No further questions or comments.)
I wanted to offer up the opinion of the -- as I mentioned in my testimony, the opinion of the Solicitor.
Okay. Thank you. All right. We'll get copies 209 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 to everybody.
For the record, then, I'd like to provide the e-mail from Steven Bibas -- Stephanos Bibas, a professor at Penn law who sat on the Mayor's Ethics Task Force and goes through in quite explicit detail why the political-activities restrictions that we have in place in this city are overbroad.
Thank you. We'll make that a part of the record also. (Copy of above-cited e-mail was not provided to stenographer and is, therefore, not attached hereto.)
All right. On my list I have three more testifiers: Mr. McCormick, Mr. Kramer, and Mr. Stahlberg. And, again, if I could reiterate, we've been at this for a 210 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 while. If you have written testimony, that will be submitted. And if you could summarize, we'd greatly appreciate it. Thank you. (Witness comes forward.)
Once again, if you could just identify yourself for the record and proceed. MR. McCORMICK: Thank you, Councilman Greenlee. My name is Brian McCormick, and I am one of the nine members of the Mayor's Task Force on Ethics and Campaign Financial Reform. We submitted a written statement; attached to that was the Task Force's report and recommendations from December of 2009. Based on Council's decision to postpone or to put off the ballot question, I think my written testimony stands for itself. I would like to just point out the fact that we -- the Task Force did find a distinct difference between 211 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 political expression and political activity, which I think pervades throughout that section of our report. As you will see from my written testimony, most of my comments, and in response to Councilman Goode, I'd say about 75 percent were on 10128 [sic]. So that's a -- the other parts were on the same -- some of the things that Mr. Armbrister testified on that we thought the ballot question, as written, was overbroad. But other than that, I don't think there's anything I could say that's not in my written testimony. And in the interest of efficiency, I would just submit it.
Okay. I appreciate that. Thank you. Councilman Green. MR. McCORMICK: I'm willing to take questions. I know you all have had my written statements since o'clock.
Okay. 212 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 Well, that usually doesn't stop Councilman Green. (Laughter.)
Um -- MR. McCORMICK: I saw him start to get up and walk away, and so I started to cut myself short. (Laughter.)
So, once again, we appreciate the work of the Task Force; I said that to you last time. MR. McCORMICK: Thank you.
And we're trying to take what recommendations we can get support for. Just very quickly, did the members of the Task Force agree among themselves essentially that even if they disagreed with a particular outcome that they would not -- with respect to one provision of the Task Force report versus another provision of the Task Force report. In other words, ultimately, it was a compromise solution. 213 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 Did they agree among themselves that if they had a particular disagreement with the final outcome that they would not publicly speak against that? MR. McCORMICK: Uh...
Yes or now? MR. McCORMICK: You're asking me a question? I don't remember the answer; I don't recall.
-- whether or there was a -- MR. McCORMICK: It's not a cop-out; I don't recall.
Okay. MR. McCORMICK: I remember we had a unanimous decision; we got to the end, and everybody agreed on what we felt.
Okay. Well, would it surprise you to hear that other 214 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 members of the Task Force have told me that, basically, the Task Force part of the final discussions were that they would not sort of publicly disagree with any aspect of the report, even if they personally disagreed with one item in it? MR. McCORMICK: I did not hear any of that test -- that was not brought up with me.
I thought you didn't recall. MR. McCORMICK: What do you mean? I don't understand what you're saying.
I'm just -- MR. McCORMICK: Well, I don't recall if there's was any, no. 19
Are you familiar with Stephanos Bibas? MR. McCORMICK: Yes, I am.
Well, Stephanos wrote a lengthy e-mail during 215 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 the process after the first Task Force on Ethics came out, and you may recall some distinctions between the first, preliminary Task Force report and the final Task Force report, especially as it relates to political activities. MR. McCORMICK: Yes, I do.
Would you care to describe the difference between the first Task Force report and the second Task Force report -- MR. McCORMICK: I think --
-- with respect to political activities? MR. McCORMICK: I think the difference was that Stephanos believed that the -- would agree with what Professor Kreimer said here, that some portions of the political-activities section would be held unconstitutional.
Yes. And 216 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 who should rewrite the law if a provision of it is unconstitutional, in your opinion? I mean, should it be an unelected body appointed by the Administration, or should it be City Council, who are elected by the people to write laws? MR. McCORMICK: I think it could be a combination of the two.
Well, I mean, if we have an unconstitutional City Charter provision, how can anybody but the legislature fix it, legally? MR. McCORMICK: Well, the legislature can take the recommendations that's it's been given by a body of interested citizens that spent 16 months looking at it and take their recommendations and discuss it with them. And then the legislation will have to make the decision in the end, though.
That's right. That's what we're doing, yeah. MR. McCORMICK: Right. 217 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
The legislative body is acting, and while we may agree or disagree with respect to specific conclusions, we are addressing political activities, which, at least in some respects, you believe are too restrictive with respect to freedom of expression. MR. McCORMICK: And I think if you looked at our written comments in our report, we agree with many of the recommendations in 10 -- 10128 [sic].
Right. So but how did the Task Force go from the first committee report, where you said, basically, political-activities restrictions are basically overly broad, and Council should in fact put in place a Charter change that authorizes them to put in place laws that meet the constitutional standards to the second 218 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 report, which said something very different? MR. McCORMICK: I think, actually, there were probably three or four reports in the middle. Just like any other body, people that work together, we had several drafts of the report going back and forth. We took comments, we had a public hearing. And after getting comments, we sat down and decided that the original draft was not the correct interpretation of that section, and revised our report.
I don't remember any comments during your original comment period after the first report that argued with the political- activities restrictions in the preliminary report of the Task Force. Was there any public testimony or public comment period about that? MR. McCORMICK: I have not read either of the transcripts since they occurred, but we also met -- 219 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
'Cause I testified there and -- MR. McCORMICK: You know, Councilman Green, we met with you, I believe, on at least two or three occasions; we met with other Councilpeople; we met with people from the Mayor's Office; we met with people from the Law Department; we met with Controller Butkovitz. I assume somewhere along the way --
I don't -- MR. McCORMICK: I can't pinpoint that exact second.
I don't think you met with me after the preliminary report was out, but certainly -- MR. McCORMICK: I'm not saying when; I'm saying just saying we did.
-- certainly beforehand. After the preliminary report was out, did you meet with people from 220 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 the Mayor's Office and the City Solicitor's Office with respect to political-activities restrictions specifically? MR. McCORMICK: I do not know the answer to that. I don't know when that occurred in the timeline.
Is it fair to say -- (Indiscernible; parties talking over each other.) MR. McCORMICK: You have to remember, we did not have a staff or anything to help us; we were working on our own.
No, I understand. MR. McCORMICK: Basically, Mike Schwartz's secretary was our sort of person that --
No, I understand. Is it fair to say that the Administration, after the first Task 221 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 Force report came out, lobbied extremely heavily with Mr. Schwartz and others to change the recommendations with respect to political activities? MR. McCORMICK: I think the Administration was concerned with the initial report, but I don't know.
And lobbied pretty heavily to get it changed? MR. McCORMICK: I -- lobbied pretty heavily? They were concerned -- (Indiscernible; parties talking over each other.) MR. McCORMICK: I know which way you want to go. So you can say "lobbied pretty heavily"; I don't know if I would say that but --
Okay. But they talked a lot about it. MR. McCORMICK: Yeah. We all did.
Okay. And would you say that that was policy discussion or political activity? 222 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 MR. McCORMICK: I don't know what you mean.
Well, I'll go where Councilman Green was about to go. On a scale from 0 to 10 -- 0 being totally not political, 10 being political -- where does the Task Force fall? MR. McCORMICK: The Task Force?
Zero. So where does the Task Force's understanding of political activities come from? MR. McCORMICK: I'm sorry. Excuse me? I don't --
Where does the Task Force's understanding of 223 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 political activity come from? MR. McCORMICK: It comes from our own reading, it comes from our own discussions within --
Based upon what -- MR. McCORMICK: It comes from meetings we've had with different Councilpeople.
If the Task Force is totally non-political, where does your understanding of political activities come from? You said zero. MR. McCORMICK: Right, meaning -- (Indiscernible; parties talking over each other.)
So if the Task Force is totally -- MR. McCORMICK: I can give you the list -- it's in the Task Force -- of the different people we met with. I don't recall which one of those 78 people talked about political activity. 224 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 (Indiscernible; parties talking over each other.)
And where would your understanding come from? MR. McCORMICK: I don't understand what you mean.
Where would your understanding of political activities come from? MR. McCORMICK: I still don't understand your question.
Why would you rely upon their expertise, their opinion on political activity unless you believed that your Task Force members you serve with had some understanding of political activity? Where does the understanding come from? MR. McCORMICK: Well, I believe that Mr. Mezzaroba served as Councilwoman Verna's Chief of Staff, for example; I believe he would understand what political activity was. We met with Councilman Green 225 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 and his Chief of Staff and his counsel at least twice; I believe we did talk about political activity. That would have been somewhere where we learned about political activity. Stephanos Bibas, who wrote the e-mail that Councilman Green entered about I don't know how many Supreme Court cases. I assume he learned about political activity from that. He was a former prosecutor in the southern district in New York; he learned about it this way. I -- I don't --
I'm not quite sure how any of the people you described -- MR. McCORMICK: Right.
-- Al Mezzaroba, anyone from Councilman Green's staff, or the last person you mentioned where they get their understanding of political activity. MR. McCORMICK: I -- I've got 226 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 to be honest. I'm not trying to avoid your question; I don't understand your question.
By virtue of having served on Council staff, does that mean someone understands political activities, as defined under the recommendations? I'm trying to just pinpoint where the actual opinion of the Task Force comes from in terms of political activities. Where does it come from? MR. McCORMICK: And I thought I tried to start to describe that. I can't tell you that I sat down and was hit by a bolt of lightening that told me what political activity is. I learned about it during the course of forty years of living in Philadelphia and sixteen months of being on the Task Force. I don't know. If you're asking me whether I have any practical experience of going out and seeing political activity on the 227 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 street? I -- I'm confused as to the question.
No, my question is simply: Where does your opinion come from? MR. McCORMICK: It came from the things I just described, it came from the --
And how does that qualify you to decide that public employees should not be engaged in it? MR. McCORMICK: I would say that the -- the nine members of the Task Force as well as the people we met with from both Council, the Mayor's Office, the City Controller, and pulling together all of that information and that learning and education and our own personal experiences certainly gave us the ability to decide on these issues.
Exactly how -- MR. McCORMICK: I don't understand how this is any different than 228 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 campaign finance or ethics or lobbying. You sit down and you talk to people and you learn about it.
So what did you learn about political activities with regard to public employees? Aside from it's bad? MR. McCORMICK: We learned the way that the courts have treated it in the past, we learned about the Hatch Act, we looked at the Charter, we compared the different aspects of it, we talked about what we thought was bad and good, and we made some recommendations that broadened the --
And the opinion that it's bad came from where? MR. McCORMICK: I can't tell you specifically. I can't remember one person that came in told us this part of it was bad. I believe it was a --
So no one -- if you can't remember who said it was bad -- 229 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 MR. McCORMICK: Right.
-- and the Hatch Act and every other law on the books on different levels of government in different jurisdictions are less restrictive, then how did you end up here in terms of believing that there should be -- the restrictions should be the same as they are? MR. McCORMICK: Because we believe that the restrictions have done the job for the past sixty years. And so, there's no reason for the -- (Indiscernible; parties talking over each other.)
Then why would there be a Task Force, to begin with? MR. McCORMICK: I'm sorry. You ran over me; I couldn't understand the question.
If the restrictions had done the job over the last sixty years, why would there be a 230 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 need for the Task Force to begin with? MR. McCORMICK: Well, that wasn't the only thing we looked at, Councilman Goode; there were a lot of other things we looked at. That was one of the issues that we were asked to review.
I'm saying if the Charter had served the purposes in terms of -- MR. McCORMICK: And that's why we say we don't think the Charter -- (Indiscernible; parties talking over each other.)
In terms of making sure that government is honest, has integrity and so forth and so on, why -- what's the need for a Task Force to begin with, if the Charter has served us that well? MR. McCORMICK: I think there a lot of different issues we were asked to look at, and that was one of them. And we actually said we think it's working, 231 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 so don't change that one. But on political expression, it is not working and it should be changed.
And you still haven't explained to me where that opinion came from that it's working. MR. McCORMICK: Well, were back to -- it's back to that question. I can't go back and specifically tell you which person we spoke to gave us that opinion.
Thank you. Did the City Solicitor's Office advise you with respect to what the law is with respect to political activities after your initial report? MR. McCORMICK: We met with the Law Department; I believe it was after the initial report, yes. 232 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
And did they advise you that, in their opinion, in contrast to Professor Bibas, that it was, um... MR. McCORMICK: Constitutional?
Okay. And were they acting at the direction of the Mayor? MR. McCORMICK: I have no idea.
So you couldn't tell us whether that's a 10 to 0 on the sale of political activity versus public policy. MR. McCORMICK: You know, councilman Green, I don't know the answer.
I understand. I'm going to read just a brief statement -- or a brief sentence. Professor Bibas goes through the current Charter and regulations and basically says there are dubious constitutionality 233 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 under the 1st and 14th Amendments of the United States Constitution and are unlikely to survive an inevitable court challenge if the City attempts to enforce them vigorously. Recent Supreme Court case law casts serious doubt about applying political-activity restrictions to employees' off-the-job activities. The Supreme Court of the United States has recognized that public employees do not surrender all of their First Amendment right by reason of their employment, et cetera, et cetera. Can you please explain why you disagree with that as a matter of law? MR. McCORMICK: I believe that -- and I'm not going to claim to be Professor Kreimer, who teaches at Penn, went to Yale; I went to Rutgers Law; I'm not at that level. Stephanos Bibas has the same sort of résumé; I think he clerked for a Supreme Court justice. I believe the case law I read 234 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 does not go as far as Stephanos Bibas thinks it does.
Okay. MR. McCORMICK: I think he is pushing it to a step too far and is not dealing with the practical realities. So that's my personal opinion.
What are the practical realities? MR. McCORMICK: I think the practical realities are that nobody is out there right now looking to change these restrictions, nobody has challenged it yet. And if there is a challenge, we'll deal with it then but not right now.
So as long as -- if something's unusual constitutional, even with respect to expression, we shouldn't do anything about it until someone brings a lawsuit? MR. McCORMICK: No. I believe expression definitely needs to be changed. I think there is a question as 235 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 to whether lawn signs and buttons and that type of thing is too restrictive, and I think that should be reviewed.
Very quickly. The process of going from a preliminary Task Force to a final Task Force report, would you consider that to be political? MR. McCORMICK: I don't think what we did was political, no. 15
I said the process of going from a preliminary report to a final report. MR. McCORMICK: No. 19
Okay. So which one should we trust? MR. McCORMICK: I think you should trust the final report.
Okay. And what about the Committee of Seventy's report on the report? 236 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 MR. McCORMICK: I'm sorry. What?
What about the Committee of Seventy's report on the report? MR. McCORMICK: A report on the report?
Yeah. There was a preliminary report. MR. McCORMICK: Right.
And there was a final report and then there was a report on the report. MR. McCORMICK: Uh, I can't...
Thank you. Never mind. MR. McCORMICK: I mean, is that a rhetorical question or just -- okay.
Thank you, Mr. McCormick. MR. McCORMICK: Okay. 237 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
Okay. Next is Mr. Kramer from the Ethics Board. (Witnesses come forward.)
Good afternoon Mr. Chairman. Shane Creamer, Executive Director of the Philadelphia Board of Ethics.
And Richard Glazer, Chair of the Board of Ethics. I'm going to testify, rather than Mr. Creamer, very briefly. Thank you for the opportunity to speak on the proposed amendment to 10107, the Philadelphia Home Rule Charter, which contains the restrictions on political activity. As Council's well aware, when the Board of Ethics was established in November of 2006, it was given jurisdiction over 10107 of the Charter. The restrictions on political activities exist to separate politics from the operation of the City and to prevent the perception or reality that 238 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 official decisions and actions are inappropriately influenced by political interests. Restrictions on political activities of those employed by the City of the City of Philadelphia have been around in one form or another in the City Charter for 125 years. However, the proposed legislation would give City Council exclusive authority, without further citizen input, to rewrite these fundamental restrictions on political activities that are currently in the Charter. Most of the rest of my testimony dealt with the fast-tracking and the concern that the Board of Ethics would not have the opportunity to come up with a position on Bill 100121 and Resolution 100139. As Council is aware, we have two new members of the Board of Ethics, and they will not be sworn in until our monthly meeting this Wednesday, so we are 239 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 pleased to find out that Chair Greenlee has advised us that this will not be fast-tracked and will not be until the November election. And by that time, we'll have an opportunity to consult and come up with a position which we will, of course, supply
Just very briefly. Mr. Glazer, you're aware that the Charter-change bill and resolution 19 don't actually do anything to change the rules without a companion bill?
They do not 240 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139 change...?
They don't change any rules; they allow the rules to be changed by ordinance.
But without a companion bill, they don't actually do anything.
So why would the Board of Ethics not have an opinion on the Charter change?
The Board of Ethics has not had a chance to meet and discuss, Councilman.
The question is simply whether it should be done by ordinance.
We have not had a chance to meet and discuss. We will have a chance to meet and discuss, and we will be pleased to provide you with our opinion. 241 3.15.10 LAW & GOV'T - BILL 100121, RES. 100139
I guess the question is, the job of the Board of Ethics is to enforce the ethics provisions of the Philadelphia Code, the Philadelphia Home Rule Charter. If this Charter amendment purely gives the ability to set up new rules by ordinance, why would the Board of Ethics need to weigh in on whether we should be able to establish rules by ordinance?
I think that would be something that we would want to discuss and opine on, as to whether it should be done by ordinance or whether it should be done by a Charter amendment.
But there's absolutely nothing within the ethics provisions of the Code or the Charter that would cause you to cause a need to respond or develop an opinion.