I'm sorry. That wouldn't make sense. It may be left in there from past years, Councilman. We don't know of anything that Ballard is doing that's Parking Authority related at this time.
I think the reference that you're making to the Parking Authority for that line is another one of these that's left over from previous years and not related to any current matter. 69 05/05/04 - WHOLE - FY '05 BUDGET
Was there a previous matter? Is that how it got in there in the first place?
There may have been something that went into Fiscal '03. To my knowledge, they haven't been involved in any litigation we've been discussing.
of the budget book. Zeller and Brandt in FY '04, $40,000. In FY '05, $40,000. The line reads, New Jersey Counsel, DEMS landfill lit. Is that litigation?
Yes, Councilman. That's a Superfund litigation in New Jersey where we're one of the parties being represented and sharing costs.
Is that because we disposed of trash over there or something?
The next item, 70 05/05/04 - WHOLE - FY '05 BUDGET the description is unanticipated outside counsel, various legal services as required, $1.2 million in FY '05, $2.4 million in FY '04, with no other description. What is that?
FY '05, $1.2 million. FY '04, $2.4 million. The line reads, various legal services as required. The description is unanticipated outside counsel.
As you know, that's a -- what it says. As much as we try, there are things we can't anticipate when budgets are planned. So this is money set aside for the unexpected, which always happens. You just don't know what it's going to be.
Well, in FY '04, which is over in two months, what did you spend it on? 71 05/05/04 - WHOLE - FY '05 BUDGET
You'll notice that the part of the '04 amount -- hopefully we won't spend the $2.4 for '04. It is an aggregate authorized amount for a couple things, the biggest part of which are the costs associated with cooperating with the FBI investigation.
The aggregate amount to date was $1.2, which we were projecting to get up to $1.5, I believe. We testified last week on the transfer ordinance to that effect. We also have -- and I don't know whether it's in here -- other matters beyond that particular matter that have continued from previous years, as well as not yet identified costs with things going on this summer including the labor negotiations, I believe. Councilman, I understand that part of why this was bumped in there is one thing that we are seeking to avoid is not -- I don't think it would be appropriate with respect to those things that are related to our 72 05/05/04 - WHOLE - FY '05 BUDGET cooperation with the FBI investigation to give firm by firm breakdown at this stage for fear that they could be interpreted as reading something into the mental impressions of the lawyers.
You have outside counsel representing the City with respect to certain individuals and their cooperation with the investigation and we don't -- to the extent we go down the road of trying to say, this is how much we expect to spend on any one firm that's identified with any one individual, we are unfairly communicating something that could be interpreted or misinterpreted as indicating how much work or how worried you are about any particular person.
To anybody other than the clients to whom you owe confidentiality.
Okay. We'll come back to that. 73 05/05/04 - WHOLE - FY '05 BUDGET I was not clear on the number. The FY '04 number is $2.4 million. I was not clear from your answer how much is related to the ongoing federal investigation.
We've projected $1.5 through end of fiscal year for what keeps getting referred to as the FBI probe. There are other matters that we're handling from that from previous years that continue that also have some costs. I think we may also have put our hedge on any potential additional labor costs in there.
For '05, we are budgeting $1.2 million. That includes -- we don't know. It's an estimate of what we think 74 05/05/04 - WHOLE - FY '05 BUDGET could be incurred as a result of the matter you're discussing or other matters. For that same type of collection of things we are budgeting $1.2. Obviously if it's less we won't need it. If it's more, hopefully we won't have to come back for a transfer ordinance. We'll find it someplace else.
$1.5 is what we expect to spend throughout the end of the fiscal year, I believe. As I testified last week, the dollars out the door or amounts approved for payment for the specific matter, for the FBI probe, was about $1.2. That was both paid and approved.
Paid and approved is $1.2 and you're expecting it to go to $1.5?
Let me ask you a series of questions related to the larger issue. What provisions of The Philadelphia 75 05/05/04 - WHOLE - FY '05 BUDGET Code or the Home Rule Charter or other relevant statutes provide for requiring the City of Philadelphia to provide legal services to public officials or public employees in this situation?
I believe it's Title 20, Section 701 or 702 -- but I'll get that for you -- which to paraphrase, says that the City Solicitor and Law Department have an affirmative duty to represent employees and persons previously employed by the City on any matters whatsoever arising from their employment.
Is there any distinction as to whether or not the matter that arises --
Is there any distinction in that regard between matters that are of a civil nature versus possibly a criminal nature?
No, there's no 76 05/05/04 - WHOLE - FY '05 BUDGET distinction in the rule.
And in this situation, though, the Law Department is not providing the direct representation, but we are paying outside counsel; is that correct?
We are providing outside counsel to those individuals. The US Attorney has asked that we get outside counsel to ensure that there's no potential for conflict.
That's the position of the US Attorney's Office. It's just before you talk to folks, you don't know what you're going to hear in a number of cases to be cautious and to avoid getting anybody into a conflict situation. We've decided, and they insisted, generally that separate counsel be obtained.
So we've hired the outside counsel, you're saying on the advice of the US Attorney?
At the insistence of the US Attorney. 77 05/05/04 - WHOLE - FY '05 BUDGET
Under what set of circumstances would a public employee's actions --
I would add, the reason you do that, just so you understand, is the Law Department at all times represents the City. We represent people to the extent of their employment with the City at some point. We don't want to put anybody in the position where their employment situation with the City or something like that hinders their full cooperation with the federal government. So if you, for example, said -- you know, I came to you and said, let's talk about the responses to the subpoena, and you say, I've done nothing wrong, but my boss might be mad at me, or my boss might have an issue with what I have to say, that might be a case where -- I'm making that up -- where I might say, well, maybe you should talk to somebody other than me because I'm always the City's lawyer. The US Attorney, they've taken a conservative, cautious, and I think appropriate route in these matters and I think it's enhancing the 78 05/05/04 - WHOLE - FY '05 BUDGET full cooperation.
So it's been reported at least in the press that there are upwards of lawyers who are representing 6 various individuals in this matter; is that 7 correct? 8
What was reported was 9 that there were 14 firms representing -- what 10 was reported was 14. There are a total of 15. 11
Our Chair of Litigation, 14 Don Marino, since I've been here, with my supervision.
Is there a limit to how much could be spent on the representation for the outside counsel?
Where you started off, the Philadelphia Code provides an affirmative obligation which continues. For the most part the US Attorney is insisting on these outside 79 05/05/04 - WHOLE - FY '05 BUDGET representations, so there is no choice there. What we try to do is we try to negotiate, as always, rates significantly below the normal billing rates of the firms involved. But there isn't a point where we just stop representing people because of money.
No. Because there's an affirmative Code obligation and there's the insistence of the US Attorney on the use of outside counsel. There's also in some cases the potential for ethical responsibility on the part of the Law Department to get somebody outside counsel.
Is there a process or procedure that is in written form that lays out how you decide or how you determine -- and you've obviously referenced somewhat specific instruction, if not insistence from the US Attorney -- but how does the Law Department in general decide whether a public employee or a public official 80 05/05/04 - WHOLE - FY '05 BUDGET gets outside counsel? When do you decide that there might be a potential conflict?
In this matter the answer is easy. It's at the insistence of the US Attorney or a judgment of the Law Department that there's a potential for a conflict. It doesn't have to be an actual conflict, just a potential for conflict.
And if the Chair of Litigation is managing the process, how involved is either that individual or yourself in what goes on with these particular cases? It seems you're representing the City. The employees or officers have their own outside counsel. The City has also apparently -- at least been reported -- the City has actually hired its own counsel outside. What would they be doing?
The outside counsel for the City per se responds to the voluminous 81 05/05/04 - WHOLE - FY '05 BUDGET requests for information made by the US Attorney. That is the labor intensive part of cooperating with the government's investigation. It is producing the hundreds of thousands of documents and e-mails and facilitating witnesses. That's where the bulk of the work is. And it requires a particular experience not normally associated with the Law Department in criminal law.
Is there any point at which the City stops providing or paying for representation?
The Philadelphia Code says that you have this obligation for matters arising from the acts performed within the scope of somebody's employment. If it's at some point determined by us that something is not within the scope of somebody's employment we would discontinue representation.
Is it fair to say -- I could just be wrong -- that most of 82 05/05/04 - WHOLE - FY '05 BUDGET those types of representation usually fall more on the civil side of litigation as opposed to the criminal side?
The nature of what someone might do that would result in a public employee or an officer being sued, you know, if one of our employees possibly smashes their vehicle into a citizen's car. The citizen sues. They go up the chain. They do the employee, the supervisor, the commissioner or the department or possibly even a higher person.
I think what you're asking, Councilman, is the question you asked before, which is whether the Code is limited to civil representations, and the answer is no. 21
Okay. If you stop providing representation because you determine that the acts or actions were not within the scope of the person's job, who covers the cost of the previous 83 05/05/04 - WHOLE - FY '05 BUDGET representation?
If we determined that certain conduct is not within the scope of representation and it precludes us from providing that representation, the easiest part of that is we would certainly discontinue representation. And the question that arises, which because it's at least possible, could in fact arise at some point, is our ability to go back retroactively to collect, and that's a litigation decision that we would make at the time based on specific facts and circumstances.
Was there any circumstance under which if that scenario were to play out and it's subsequently determined that the actions were not within the scope of the person's duties and the City has expended whatever amount of money its expended for the previous representation under the Code and state statute, why wouldn't the City seek to recover funds expended for the representation since it is at that point you already made the determination that representation should no 84 05/05/04 - WHOLE - FY '05 BUDGET longer be expended because of whatever the actions were? Doesn't it seem to negate having provided the representation in the first place?
I would take the position that the Law Department will pursue the City's interest. The first thing is what's our legal claim going backwards. I'd probably argue that we have a claim going backwards. Then you have the litigation decision that you would make in any litigation matter of what it would take to pursue those costs. But it's not a decision that I'm prepared to make in the abstract without any facts and circumstances before me. The Code provides for representation within the scope of their employment. I said that there is a question then that arises if something is not within the scope of their employment, I'd make a litigation decision based on law and fact, specific law and fact, as to how much sense it makes to go after these folks the way you make decisions in litigation all the time. 85 05/05/04 - WHOLE - FY '05 BUDGET
Lastly, what interest for the citizens of the City of Philadelphia is being protected or guarded by having the representation provided? How are the citizens benefiting from the representation? How are their interests being protected?
Well, first, the Code provides an affirmative obligation for the City to provide representation for people acting within the scope of their employment. They're acting on behalf of the City. The Law Department, as you know, is -- because we have an elected District Attorney, the elected District Attorney's Office is the prosecutorial arm of the criminal law expert in the City Charter framework. The Law Department does not routinely keep on hand expertise in responding to criminal investigations and criminal subpoenas. I think that it makes sense when that need arises, to go out and seek the expertise rather than to have people doing that instead of delinquent tax collections. 86 05/05/04 - WHOLE - FY '05 BUDGET So we have an obligation to provide adequate representation. We also want to cooperate fully with the federal government. Cooperating fully also requires expertise, because if you don't know how to read a subpoena or what something really is about, you're not necessarily -- you don't want that to be misinterpreted. And finally, we're running the City here. The Law Department has lots of things it's doing. One of the questions that kept coming up before and since I've taken the job, people keep wanting to say, you know, you must -- assuming that the investigation is consuming the Law Department, that other things aren't going to get done. That's not how I'm going to manage the Law Department. The business of the City is going to get done. We're going to seek the help we need from people outside in a way that doesn't hinder the work that the Law Department has to do in helping the City run. I think that defending against meritless claims against the Police 87 05/05/04 - WHOLE - FY '05 BUDGET Department, pursuing delinquent tax collections --
We are doing zoning enforcement. All of those things are things that we're able to do because we're not turning our Law Department into a criminal law defense firm.
I understand that. But again from our previous discussion, that's also balanced by -- and I'm glad the Law Department is not overwhelmed or consumed by all of this because then I wouldn't be able to get all the legal opinions I'm going to ask you for. On the other hand, you're also projecting upwards of $2.7 million in outside legal costs, which would be of concern --
-- to the City, who again are facing projected service cuts and who may wonder for themselves, how do I 88 05/05/04 - WHOLE - FY '05 BUDGET benefit as a result of all this activity going on when, you know, my library is closed.
Our job is to protect the resources of the City and to collect those resources owed the City. That's not to say that there aren't changes that are adverse to the City. One of the things we're very distressed about is the erosion of the law under the Tort Claims Act. A recent Supreme Court case finding that sidewalks adjacent to state -- that we would have some exposure for sidewalks adjacent to state highways. That's something we have nothing to do with, but has a real impact on the City, the taxpayers and the Law Department's responsibilities.
Well, Solicitor, earlier there was testimony lauding the decision making of the Pennsylvania Supreme Court in one particular case. You know, you win some, you lose some.
That's kind of 89 05/05/04 - WHOLE - FY '05 BUDGET the way it goes. lays out two additional contracts each for $20,000 related to the airport. Line items for both read, FBI investigation.
I'm sorry. Councilman, give me a second. Councilman, go ahead.
Are those two matters all related to the same investigation?
Are there any other places -- I don't want to keep you up at the table too long -- are there any other places --
Within the Law 90 05/05/04 - WHOLE - FY '05 BUDGET Department budget, that's -- I think it's General Fund and this piece of the Aviation Fund. To the extent there may be current or past work at the Pension Fund, that would show in their budget.
I mean, PGW was served a subpoena. That would show up under their's.
Those all end up at the Law Department eventually anyway. Why wouldn't it be in your budget?
The short answer, I guess, is that the work done strictly for those enterprises and funded by those enterprises that we're not managing but we would ultimately approve show up in those budgets. This is the universe that I'm familiar with.
Do you know then, based on those, as you referred to them, other enterprises, what their costs are or what is the total cost of what you've characterized a couple times as the FBI probe? What's the total cost to the City? 91 05/05/04 - WHOLE - FY '05 BUDGET
I'm not aware of those, but would be happy to communicate back through Finance the request to other departments.
I'd like to have from you in writing a legal opinion regarding the City's policy of providing private legal services for public officers and employees. I'm going to for the moment assume that you were accurately quoted in a newspaper story from April 12th of this year regarding three different but overlapping legal grounds for refusing to make certain information public. You've made reference to the City legal obligation to protect grand jury secrecy in terms of apparently refusing to release any information with regard to the amounts of money spent on the individual representations. Second, you've made reference -- again, I'm only going from the press accounts -- that City officials and their private counsel would violate one of the rules of professional conduct for lawyers regarding protecting all information about a client related to representation, again in the 92 05/05/04 - WHOLE - FY '05 BUDGET context of laying out either who is involved or what the amounts that we're spending individually. And last, that public disclosure of which officials have been contacted by the grand jury may operate to the prejudice or impairment of the person's representation, which apparently is another exception to the state's public records law. Obviously, there have been some names in the newspaper. Do you have any belief at the moment that any of these individuals have prejudice or impairment of their personal reputations?
I'll make available to you, Councilman, the opinion that we provided the law firm for. I don't know whether it was the Daily News or the Inquirer, which is an opinion on -- I will provide that opinion to you.
One last question in this area. I understand the opinion as to what you may or may not want to share with the general public or the press. In your capacity as our attorney in the 93 05/05/04 - WHOLE - FY '05 BUDGET context of a budget process, is it not at least appropriate to tell us, since we're asked to approve a budget -- you have two pages with probably different listings of 6 Class 250 contracts, professional services, 7 that lay out by name companies, organizations, 8 individuals with whom you contract, what the 9 description of the services are. Do you think 10 that that is information that should be 11 withheld from City Council in the context of 12 our budget approval process? 13
You're asking for a list 14 of all the firms involved in the matter? 15
Don't answer the 18 question so quickly because what we normally 19 get is both pieces of information. I don't 20 know anywhere in any of the two books that we have, that for professional services there is a listing of a general item with no detail as to who we're contracting with or what the contracted amount is for. I know this is an unusual 94 05/05/04 - WHOLE - FY '05 BUDGET circumstance, but I don't know, at least in my time, when I've ever looked in a budget book and couldn't figure out who we were contracting with and how much it was for.
Well, Councilman, we will provide a list of all the firms involved in the representation. And as we've done before, the aggregate amounts spent and projected when it comes down to individually how much for each firm, we're -- you know, as stated more articulately in the opinion that I'll share with you, I believe that that would be highly inappropriate for all of the reasons stated in that opinion, both as -- .
Are you precluded from the US Attorney's Office or the rules of grand jury secrecy from sharing that information?
Have you been either precluded or restricted or is there any request from the US Attorney's Office to not share that information, or is there any violation of grand jury secrecy with regard to 95 05/05/04 - WHOLE - FY '05 BUDGET how much of the taxpayers' dollars are going to an individual firm to provide representation?
I think it's the same question. I'll provide you the written opinion that we provided on the very same question to the news media. I don't think that to whom we're disclosing, including this Body, which does have the authority you say, changes both the obligation as well as the ethical responsibilities of me or my department.
We had a communications person that's been working for the Law Department who had primarily been working on a newsletter. That is the contract to which I alluded earlier where I have discontinued the newsletter and directed the resources being spent on communications specifically to our efforts to collect delinquent taxes.
So you're saying the $80,000 item in FY '05 is going to be 96 05/05/04 - WHOLE - FY '05 BUDGET eliminated or just the resources redirected?
I'm not doing the newsletter. I'm doing a campaign. I'm using it as what I hear from Revenue is a small fraction of what has been spent on previous campaigns. But I'd like to spend the resources we have for communications on priorities I've established managerially for my Department, the highest one of which is delinquent tax collections. So to the extent I have communications resources, they're going to be directed at that, at collecting money.
I've given notice to Keel Communications, who's listed there, that I don't wish to continue with the newsletter and ask them then for a communications plan for delinquent tax collections.
For the same amount? 97 05/05/04 - WHOLE - FY '05 BUDGET
They're currently on retainer. I want to see what it is that they're proposing to do. When I mentioned the number in a previous setting with someone in the Revenue Department, they were telling me that when the City has tried to do outreach on collections, they've spent more. I'd like to see what I can spend with the resources I have.
So the issue here is not so much that the contract has been discontinued, the scope of service has changed from the newsletter to seeking to --
I'm aligning my resources, people, outside folks, money towards my Department's priorities, the highest of which is going to be this. So I want to use that expertise. If they can't do it, somebody else will. But I would like to see what they propose.
I understand. In the current fiscal year for the $70,000 contract, how many newsletters were developed?
It's been a monthly 98 05/05/04 - WHOLE - FY '05 BUDGET newsletter, in addition to any time there is any kind of a release or something from the Law Department specifically, but it's mostly been the work of producing and publishing and distributing the newsletter, which has been generally a monthly newsletter.
And help in publishing e-magazines and legal magazines and things like that.
Okay. Last question. Labor costs, could you forward to the Chair your estimates on -- I think it usually ends up in your budget or maybe it's over in Labor Relations. Does the Law Department usually end up absorbing some of the costs of labor representation for municipal contracts?
I know the lawyers are in my budget. I'll have to check and get back to you.
If you could provide to the Chair your estimates of the 99 05/05/04 - WHOLE - FY '05 BUDGET cost of those upcoming contract negotiations.
Thank you. Are there any other questions from Members of the Committee? The Chair recognizes Councilwoman Brown.
I thought I was done, but a few of Councilman Nutter's questions have triggered a few questions for me about MBEC. Please share with us or discuss with us what priority level has been assigned to the Law Department's legal assistance and/or support to MBEC.
I can talk about my time here, which is that I personally and the entire Cabinet has heard at length from the Mayor and the Chief of Staff about the importance of minority participation and collusion in our contracting and about the importance of supporting MBEC in its current transition. 100 05/05/04 - WHOLE - FY '05 BUDGET In my Department, just in the time that I've been there, it's taken a fair amount of my time, a fair amount of folks in our legislative staff, as well as the people that regularly work with MBEC, such as Michelle Flamer in my Department who works in the procurement process and is our in-house expert there and I believe will play a significant role during this transition in supporting the new director there and the Administration in continuing to tailor its minority participation goals and agenda.
Where are we with the incorporation of both the ordinance 16 and the executive order mandates and pre-bid and orientation proceedings and agency bid packages? I'm seeking some tangible or specific task tactics strategies that support what you've just shared.
Well, we're involved in the contracting process right now. We're involved in the Contract Review Committee and we're involved in review of mostly the 101 05/05/04 - WHOLE - FY '05 BUDGET non-procurement contracts, and we have somebody there who is active. We're all charged. My Department's got some significant charge in strengthening going forward what we do, including consideration of what vehicle we would use legally for continuing to strengthen our minority participation program.
So there is an individual or individuals who is principally responsible for --
We have somebody who is -- who regards this as kind of this person's arena, and it is. And I think we continue to expand the number of people that support that. At least in my own involvement it's an area that's of personal interest to me, as well as professionally. You know, times of transition are times of opportunity. I think that we're going to do everything we can. I know that the new director is very eager and willing to get as much support as he can in building a better structure for minority participation.
Recognizing 102 05/05/04 - WHOLE - FY '05 BUDGET that your time here has been limited, if this is not in place -- and I'm curious to know where you are in the process -- have there been any regulations formatted to implement or supplement both the ordinance or the executive order yet?
I believe the last executive order has expired, and we're aware of that. And the vehicle that we use that the Administration ends up using to further strengthen its minority participation agenda will be something that we will help them with. If we were working on a particular matter we wouldn't disclose it until that client is prepared to.
One red flag that continues to wave itself has been the lack of the enforcement of penalties for contractors who are not in compliance. Where might your office be with regard to that issue? Has your team had a chance yet to deal with that? Because it's still a blatant disregard --
Councilwoman, I'm not 103 05/05/04 - WHOLE - FY '05 BUDGET sure -- I'm just personally not sure -- I'm not saying that collectively we don't know which particular penalties you're talking about. If you indulge me, I'd take a question that we can respond to in writing to the Chair.
Okay. That would be helpful. My hope is that next year this time, acknowledging your short stay, that you and/or MBEC can give us some assurance that regs and enforcement penalties are in writing, that there is some confidence that contractors who do not comply are held for not doing that.
I can give you one assurance recognizing my short stay so far, which is I've immersed myself personally in the law in this area. And it's something I think and care a whole lot about. And at least to the extent that we have a role -- in which we do -- I'm personally interested in it and see myself, as our department, as doing whatever we can to help the City get to a program that deals with the historical issues 104 05/05/04 - WHOLE - FY '05 BUDGET of exclusion.
My final question on this matter is, Councilmembers were anxiously waiting for the receipt of the disparity study, and my comrade just shared with me it was delivered late yesterday. Has your office had a chance yet to do an analysis or a review of the disparity study?
Yes. The person I mentioned earlier, Michelle Flamer, this is part of what she does every day. Let me put a little historical context on disparity studies, depending on how much time you had. Because I think these things kind of get talked about in the abstract. I don't want to become a law lecturer here, but in 1989 there was a US Supreme Court case called Crozen, which undid the City of Richmond, Virginia's minority set-aside program. It really changed the landscape for what cities can do. And it said that any time that a city -- well, it ended up having two results. One was that if a city is going to go down the road -- or any government 105 05/05/04 - WHOLE - FY '05 BUDGET down the road -- of making race-based distinctions, then the courts were going to look at that with the highest level of scrutiny. What they were going to look to is what evidence there is of active or passive discrimination. And then it's going look to what you did about it. The first think they look to is, what things did you try that were not race based. And of the things that you did that were race based, how close was the solution to the problem. They call that narrow tailoring. As a result of all that, cities and other governments saw the need to start documenting disparity to know how they were doing, how well they were doing, but also, if you're going to have a program, you need to be able to show that you know where the problems are, that you're not just making broad-based distinctions. You need to know whether there is exclusion, where it is, and that whatever you do about it is tailored in a way that's defensible to the problem that's found. So 106 05/05/04 - WHOLE - FY '05 BUDGET these things called disparities studies give rise to a whole new line of work for folks that do these data analyses. From my own biased view of these is that I wish -- they need to rely on good data in the world outside of us in a way that the data is not there. So the studies do the best they can in measuring what's the availability versus the participation. So they're important for us to know kind of where we are from the data that we can get and help provide a potential guide for areas where we can focus. They also, looking forward, serve that purpose of if we're going to do something more aggressive, it's important that we know why we're doing it and where.
Well, thank you for the background. And I'm encouraged to hear that you expect to be very proactive in getting your arms around the issue and the Department, because it resonates daily in these Chambers on where we are not with regards to MBE/WBE participation. Thank you for your testimony. 107 05/05/04 - WHOLE - FY '05 BUDGET Thank you, Madam Chair.
You're welcome. The Chair recognizes Councilwoman Tasco.
I have just one. It doesn't have to be a long one. On on the grants revenue, you have $15 million plus to increase revenues to the City School District of Philadelphia and Philadelphia Gas Works --
Excuse me, Councilwoman. I'm sorry. I have people talking to me while you're asking the question. I can't listen.
Could you tell me where does the money come from? Do these agencies pay you? And why have you increased it back to the level to $15 million when you really only obligated $5 million during 2004?
I asked the same question. The straightforward answer, which is for those collections done by outside counsel, they're paid based on what they get, so it's grants revenue. To the extent that 108 05/05/04 - WHOLE - FY '05 BUDGET you're collecting more, the more collection you have, the more that you're paying out for those contingency arrangements that you do have. So it's an estimation that reflects more how much you expect to collect through contingency arrangements than anything else. If you collect less, less gets spent out of grants revenue. Part of how you do delinquent tax collections for some taxes is you have contingency arrangements. The firms only get paid for what they collect, and they get paid a part of that. The way they get paid is, we get 100 percent of what they collect and then they get paid a portion back. That's this. The grants revenue reflects how much we expect to have to give firms as largely as contingencies for what they collect, and we can't spend that on anything else.
We expect to collect a lot more than $15 million. We expect that to be their take. 109 05/05/04 - WHOLE - FY '05 BUDGET
We need money, and my highest priority is getting some, at least to the extent we have some in the Law Department.
Thank you. Councilman Ramos, did you want to be recognized?
Madam President, my colleague asked a similar question that I had in mind. Thank you.
Thank you. The Chair recognizes Councilman Nutter.
Solicitor Ramos, on a completely separate topic, which I'm sure you're glad to hear, there's kind of a big issue and then there's the broader issue which we've been challenged by in the past, which is whether it's a lower level court decision or even in some instances the Pennsylvania Supreme Court decision around the issue of when the City takes someone to court for 110 05/05/04 - WHOLE - FY '05 BUDGET whatever we take them to court for. In some instances, let's say it's a zoning violation or a building violation or you built something that you weren't supposed to build or didn't fix something you were supposed to fix. Now in a more specific instance, the situation with some of the recent billboard cases, the City has been successful in pursuing whatever it needed to pursue. The court rules in our favor. It rules against the operator or whoever the offending party may be. This is not, again, just about billboards. And the process for whatever reason seems to almost come to a grinding halt in terms of actually making the parties either do what they're supposed to do or take away the thing that was the source of the litigation in the first place. If the Pennsylvania Supreme Court determines that an entity, an object, a thing should not be in the place where it is, what actions do we take to ensure that the thing, the object, the entity is removed or finally dealt with or disposed of? 111 05/05/04 - WHOLE - FY '05 BUDGET
In almost all cases -- again, my history here is not deep, so some of this is impression. One impression is that the cases, when you think they're over, they seem to continue. There are some cases which we hope are final, like the wall wrap case at 7th and Callowhill, which has become sort of symbolic in some ways. There are simply more illegal signs than there are legal signs -- billboards -- in the City. The Mayor has asked the Managing Director and me to come up with a game plan for addressing the issue. In fact, I'm scheduled to meet with billboard advocates sometime this week.
Are they billboard advocates or are they anti-billboard advocates?
Anti -billboard advocates. I appreciate you giving me the opportunity to correct the record before I meet with them.
I can give you 112 05/05/04 - WHOLE - FY '05 BUDGET some legal advice on that regard.
Again, I tend to try to take a view of how do you manage towards a high impact result. And I don't want to get ahead of the process the Managing Director and I are going through in terms of really trying to come up with a thoughtful, comprehensive plan on this. But one put that I can tell you, an observation, which is a big part of this, is what I've now come to know as eight sheets, which are, as far as I can see, all illegal and they tend to be the ones in the neighborhood. You often see them as the smoking or drinking ads. Not that we care. Not that content is the big thing here. But they are certainly inconsistent with our efforts to eliminate blight, and there are a lot of them and they're all illegal. And there are hundreds of them. By comparison, let's say there are 4,000 billboards -- these numbers are real rough -- 4,000 billboards. Maybe 800 of them are legal. Our total litigation in this area, 113 05/05/04 - WHOLE - FY '05 BUDGET including L&I, I think we prosecuted 45 cases, including L&I. It's good in terms of setting law, but it doesn't get those signs down.
Which is why it's a Law Department as well as Managing Director issue and why we're working together. I would think -- and I'm not done talking to Phil about this, and I haven't met to hear out SCRUB on what their thoughts are, and they have a lot of experience on this -- but my view of it is, we have a lot of initiatives to improve the quality of life in neighborhoods and we can make a huge dent in that arene. It would be a great dramatic increase in the level of our enforcement activities and consistent with folks' priorities. Part of the process is knowing that even when you think these cases are final, the fight continues. It's which fights where you're going to look to have an impact. And I don't want to over-commit. And I'll be more hesitant when I know more to talk about it. 114 05/05/04 - WHOLE - FY '05 BUDGET But that's my initial take on the situation.
I know you're getting into a variety of issues, but when you make mention of a coordinated approach between yourself, the Managing Director and hopefully the Department of Licenses and Inspections all at the direction of the Mayor, which is certainly good, when do you think you will have a plan of action and be in a position to, I think, demonstrate to the citizens of this City, that when people have illegal things up we will take action? This is what we're going to do and we're seeking results. We get into longer debates about, is the goal to get the thing down or is the goal to get people in compliance to be legal, which is another --
Well, there are lots of parts of it. I tend to try to make things simple so I can deal with them. You know, eight sheets and they're all bad, most counter to all of our agenda items. That has to be balanced against what's possible by the operation side of the City. But that's how my thought process would be. 115 05/05/04 - WHOLE - FY '05 BUDGET In terms of a time table, the Managing Director and I, with the NTI and L&I folks, have been doing some homework. This meeting with SCRUB is part of my homework on this. I hope that it's weeks and certainly not -- I don't want to get into the summer without having what I consider to be a plan.
Let me lastly say on this that again I'm certainly pleased to hear that, and I know other Members care about this particular issue. Beyond the billboard issue -- and again, whether it's zoning violations or a variety of things, I think what you're going to find is the larger issue is whether or not people believe that the City means business. When you get a violation notice, you possibly end up in court. You go to court. You lose at Municipal. You lose at Common Pleas. You lose at Commonwealth. You lose at the Supreme Court. And at the end of the day nothing really happens. If you even go through all of that process, you know better than I that that can be a very protractive process. 116 05/05/04 - WHOLE - FY '05 BUDGET In the meantime, the person continues to collect whatever rent or money that they're getting, probably continuing not to pay us anything that they're supposed to pay us. But in the larger sense it is the kind of massive thumbing of the collective nose at the government and its enforcement components that basically send a message to people, you can do whatever you want. They'll send you a notice. You don't comply, they'll chase after you. When it's all said and done nothing is ever really going to happen, which just sends, I think, the absolute wrong message.
Which I think is consistent with preferring to pick battle grounds rather than try to fight on all fronts at once from the beginning.
Okay. Thank you. I look forward to it. Thank you, Madam Chair.
You're welcome. The Chair recognizes Councilwoman 117 05/05/04 - WHOLE - FY '05 BUDGET Tasco. No?
Any other questions or comments from Members of the Committee? (No response.)
Thank you very much. You've been very informative. Thank you so much.
The District Attorney was supposed to be next. However, she had notified us sometime ago that she had another commitment at this hour, so we are continuing with the District Attorney until 2:30 this afternoon. We will now hear from the Defender Association. Good afternoon. Thank you for your patience. Please identify yourself for the record and proceed with your testimony. And if you care to abbreviate your testimony, a copy will be given to the stenographer, which will be transcribed in full.
Thank you very much. 118 05/05/04 - WHOLE - FY '05 BUDGET I'm Ellen Greenlee. I'm the Chief Defender of the Defender Association. To my left is Charles Cunningham, first assistant defender, and to my right is our controller, Selim Tawadros. It's S-E-L-I-M, T-A-W-A-D-R-O-S. It's hard for me to contain my disappointment that we didn't get to hear the show and tell from the District Attorney. But I guess we'll have to come back this afternoon. I will miss all that hyperbole and fear mongering that seems to be present in her statement, especially her attack on the Defender Association, to which I will respond briefly in a few moments. First of all, I have to, as we do always, thank City Council, Council President and the Members of City Council for their support of the work of the Defender Association, which has been in business now for about 35 years, and as you know, is in engaged in the work of representing the poorest citizens in Philadelphia who are charged with crimes, both juveniles and adults, representing those who have a civil 119 05/05/04 - WHOLE - FY '05 BUDGET mental health hearings, mental health problems also that are reflected in Criminal Court, and also representing 6,700 dependent children in Family Court in contested custody matters. During the last year, in 2003, we received approximately 68,000 new court appointments. We made almost 350,000 court appearances, each time representing a client in a court of record. And we provided 73,000 ancillary services, such as investigations, social service help and interviews of our clients. As you are aware, Council President, the City has requested for us an appropriation in the amount of $32,500,000, which is the same as for the last fiscal year, only with an addition for about $123,000, which represents the third year of a four-year plan to achieve some parity for our administrative staff. For those who have been the beneficiaries of that, the Defender Association, I say thanks to City Council as well as to the Mayor for that benefit. In addition to that, though, we are 120 05/05/04 - WHOLE - FY '05 BUDGET engaged in discussions with the Budget Director, as we seem to be in that position every year at this time, because we have issues that revolve around annualizing our health insurance, other increases in benefits costs, such as disability, life, Workers' Comp, and we also are asking for a 3 percent figure that would represent an increase for our staff. There is no increase in this year, as you are well aware, for City agencies, but our staff continues to fall behind others in the City in comparable positions across the board. I must point out that in terms of parity, the District Attorney, on her statement, while complaining about the fact -- and probably rightly so -- that her office has been cut, indicates that there's some injustice in that because the Defender was not cut. Now, clearly the District Attorney knows because she's been around for a long time, that the Defender Association is not a City agency, not a City department, so that we are not part of any City benefit 121 05/05/04 - WHOLE - FY '05 BUDGET plans, but that we must provide all the benefits for our employees, and certainly we must attempt to provide benefits at the level of City employees. We continue to fall behind in terms of salary across the board, both for attorneys, social workers, investigators and administrative staff. The District Attorney complains about the fact that we are not required to live in the City and don't have a lot of expenses she says that is attached to living in the City, and that we handle about 60 percent of non-homicide cases, which is 70 percent. But the most grievous misstatement -- and she knows better -- is the next line in that top paragraph on where she says that we try 100 percent of all matters in the court system. " The District Attorney well knows that we receive no federal funding.
There is 122 05/05/04 - WHOLE - FY '05 BUDGET a federal defender office that is entirely separate, apart and separately funded from us. We receive no federal money unless it is part of the small grants that we receive through our juvenile unit, which is some federal money, and you're talking about maybe a quarter of a million dollars that's funneled through the City and goes to all the agencies that work in Family Court. I take great umbrage at this suggestion, that we're receiving money from the federal system that we are not reporting to the City, and obviously we don't need the money that the City gives us. The reason that we are not cut is because we are private and do have to fund all of our expenses for insurance and employee benefits. We work very closely with the Budget Director, as we did when Mr. McPherson was budget director, and they are very clear and sure about the fact that we run a very lean operation, and there is no fat in our operation. And when we say there are increases in insurance costs and benefits, 123 05/05/04 - WHOLE - FY '05 BUDGET they know that we speak the truth because they understand and they see the figures. That's all I want to say about that. I don't engage in ad hominem attacks, unlike some other parties that may appear here. We are critical players in the criminal justice system -- I think you know that -- as we are in Family Court, and without us the system would fall apart. We do an extremely competent job. We provide effective representation to all of our clients in whatever area in which we work. At the present time, what I think would be helpful would be for Council to take the lead in deciding that the three law offices that are to appear here today, the Law Department, the DA and the Defender all should be on the same salary scale. Then we would have no quarrel at all, and she wouldn't have to attack us and we wouldn't have to complain every year that they earn more than we do, because they do. This September at present our starting salary for an attorney is $42,000. 124 05/05/04 - WHOLE - FY '05 BUDGET The District Attorney's starting salary is $44,823. So they're almost $3,000 ahead of us. When we look at our professional social workers, they are overworked and underpaid, and paid approximately $7,000 on average less than social workers at DHS. Even with the administrative pay plan, for which we are eternally grateful, our administrative staff still remains well below what is the standard and the average in the City. The only pitch that I really want to make today is that Council put an end to this bickering and to these attacks on one another, in which we really want to play no 16 part, and decide that there should be each year a salary scale for all three that is the same, commensurate with the levels of experiences and the jobs that people work. We, of course, being the ones in third place, will be eternally grateful if this is put in place. If you believe -- and I know you do believe -- that our poor citizens deserve the same level of representation as the 125 05/05/04 - WHOLE - FY '05 BUDGET well-to-do, there is really no reason to treat their attorneys any differently than you treat prosecutors or treat city solicitors. We have a staff of very dedicated people who are willing to do this work, work very hard and are underpaid. We were the beneficiary -- and I point that out again -- of an attorney parity pay plan that went for four years, which enabled us to increase our starting salaries of the salaries for our lower level attorneys, but that ended in 2003. And we're kind of stuck there because we do not have written into our budget money for increases to increase these lower levels every year.
And just as a comment on salary parity, we have attorneys working in our Homicide Unit that are handling many more cases than they should be handling -- I hesitant to say -- with 20 years of experience who are earning approximately $15 to $20,000 less than their counterparts in the District Attorney's Office. This is also grossly unfair. The best thing that could come out of our presentation today would be a 126 05/05/04 - WHOLE - FY '05 BUDGET determination by Council that perhaps you could be proactive in looking towards settling this once and for all. I should also point out, it just occurred to me that it is not a novelty that prosecutors and defenders be paid the same. In the federal system they are paid the same. US attorneys and the federal defenders are paid at the same salary levels. And there's no reason why that shouldn't be true here. Actually, Council President, I hear what you said to me about being brief. I was going to comment, but it's in my notes on the fine work and highlight some of the work of our Homicide Unit, and I know that you are aware that we've only been doing homicide for 11 years. During that time we have handled about a thousand cases, and to date I am very happy to say we've had no client who has received the death penalty. At the same time in Philadelphia, due to the very diligent work, I think, of the District Attorney there have been more than 80 people sentenced to death who have been tried 127 05/05/04 - WHOLE - FY '05 BUDGET in Philadelphia. I think that speaks to not only to the quality of representation, but it also speaks to cost savings which the City gets because we do the kind of job we do. There is less expense in the way of appellate expenses, post conviction expenses. We have also worked diligently at decreasing the number of costly jury trials. We have worked quashing aggravating circumstances to reduce the charge from first degree -- that's death eligible -- and we have also handled many cases at degree of guilt hearings and done a lot of waiver trials. All of these procedures are ways of cutting back on the expenses that are attendant upon the trial of capital cases. And we have been a leader in this because obviously until we got into it there was no 19 institutional presence. I comment also --
Excuse me just a moment. Councilman Nutter, do you want to be recognized?
Ms. Greenlee, I 128 05/05/04 - WHOLE - FY '05 BUDGET apologize for cutting across you, but I didn't want to get too far away from this particular point. I need to ask you, you made reference to a figure of 80 people sentenced to death. What I needed to understand was a time frame or a time parameter around that number.
In the years that 9 we have been doing capital cases, Councilman. 10
So in the course 11 of the past 11 years, there have been 80 people?
I think it's 88. I'm just saying -- more than 80, and I'm conservative. 88, I believe, is the correct number.
So it's about eight a year. On average I guess it's about eight a year.