City, URA Payout to Settle with Ford, Sirk

VIDEO of my Channel 4 Action News report is at this link.

Pat Ford has been on leave with pay from his job as URA Executive Director since April. His deal approved the the URA board continues to pay him not only through the end of his contract at the end of this year, but for an additional six months through the end of June. There's a provision he won't 'disparage' anyone as a condition of getting this money. His lawyer, Lawrence Fisher, says that doesn't mean he can't cooperate with authorities if he's subpoenaed.

After his own state ethics review, Ford made allegations of corruption in Mayor Luke Ravenstahl's administration and claimed he was being made a scapegoat for others.


Ford's attorney, Lawrence Fisher, says Ford will no longer will repeat the allegations, "unless and until" he is compelled to do so by a subpoena.

Fisher says "nothing about this settlement inhibits my client from continuing to actively cooperate with authorities on matters of mutual interest, nor could any such settlement so inhibit him."



The bottom line: by the end of next June, the URA will have paid Pat Ford an amount that equals 15 months' pay without his working -- more than 146-thousand dollars -- because the city believes that's cheaper than any lawsuit.






URA board member Jim Ferlo says the URA will "not to spend precious and very limited public dollars on baseless lawsuits and misdirected energies".







Urban Redevelopment Authority Solicitor Don Kortlandt says the agency will avoid "the costs that might be occasioned by prolonged discussion, litigation back and forth between the URA and Patrick Ford."







Ford's wife Alecia Sirk --the mayor's ex-press secretary --- gets $2,500 in a separate settlement from the city for what her lawyer says was a forced resignation.









City Solicitor George Specter says the city is paying "frankly, in order to resolve the whole thing and get it done quickly and really put an end to the whole matter involving both of them."

Fisher, who is also Sirk's attorney says that "all she was seeking from the city was a letter of recommendation".





Mayor Ravenstahl released a statement saying that a settlement of potential claims by Ford and Sirk -- rather than protracted, costly litigation -- is "the most cost effective and prudent way to protect city taxpayers".

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The Curious Case of the Solicitor's Phone Calls

City Solicitor George Specter

It was an unusual footnote to Mayor Ravenstahl's news conference on Friday, which he held to respond to the attacks in Pat Ford's resignation letter. The evening before, City Solicitor George Specter made a series of phone calls to top media company executives around town, expressing concern about potential news coverage of rumors about the Ravenstahl administration.

My source confirming Thursday's unprecedented series of afternoon and early evening calls is Solicitor Specter himself.

Many of the calls went not to news division executives, but to top executives outside and above the news divisions, Specter confirmed.

Friday, when I returned Specter's call to WTAE, I reached him on a golf course; he was vacationing out of town. I asked him if he had anything to add to Mayor Ravenstahl's remarks. He responded that he hadn't known about the mayor's news conference and he declined to do a phone interview. Specter said he had made the calls Thursday because he was concerned that there were rumors the Ravenstahl administration was under investigation. The city solicitor had wanted to make it known that he was not aware of any investigation.

I first learned details of Specter's calls from a reporter for another local news organization after the news conference. In reviewing my transcript, it's apparent that Specter's calls actually inspired the first two questions of the news conference, which came from yet another reporter:

Q: Mr. Mayor, your --the city's attorney called the newspaper yesterday and said you guys were aware of a rumor going around that [rumor redacted] but you didn't know anything about it. Can you address that; what is that about?

A: I would just say that there are a lot of rumors and things being said right now. and if I were members of the media, I'd be very careful in what I reported and make sure that they're factual and not simply rumors.

Q: But are [rumor redacted] ?

A: Nobody in my office nor myself has ever been contacted by any investigatory agency. So, no.

It appears one immediate effect of the solicitor's calls was to prompt heightened attention and blunt questions from reporters about the rumors the solicitor's calls spotlighted.

Many months ago, I questioned the mayor's office about a different unsubstantiated rumor concerning Ravenstahl. At that time, Acting Press Secretary Joanna Doven told me that City Solicitor Specter believed the previous rumor amounted to slander. I was puzzled at the time by the solicitor being invoked in that case in a role beyond his usual city governmental duties.

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New Fight Over Council Legal Bill Brewing?

Marvin Fein

Remember the controversy over a legal bill incurred by four Pittsburgh city council members? They'd hired a lawyer to challenge how Lamar Advertising's downtown electronic billboard was approved outside the normal city process.

You'll recall that the city solicitor had issued a legal opinion suggesting the four had a conflict of interest and that they risked forfeiting office if they even discussed authorizing payment of the bill, let alone voted on it.

Attorney Marvin Fein -- who served in the city solicitor's office under Mayor Caliguiri -- has provided Council President Doug Shields and the rest of council with a sharply different analysis.

Fein's bottom line:

"Based on forty-five years experience as a lawyer including twelve years as a law professor and eight years as a member of the City Solicitor's office and research on all of those issues, I have concluded that all of those conclusions are erroneous."

Click "Read More" to see the full text of Fein's opinion to council.


MARVIN A. FEIN
ATTORNEY-AT-LAW


June 9, 2008

President and Members of City Council
City of Pittsburgh
5th Floor, City-County Bldg.
Pittsburgh, PA 15219

Re: Bill 308-Legal Opinion

Dear Council President Shields and Members of City Council:

I have reviewed the Memorandum dated May 12, 2008 from City Solicitor George R. Spector to Council Members Patrick Dowd and Jim Motznick regarding Request for Ethics Opinion Regarding Conflict of Interest. In that memorandum, the City Solicitor opined that four members of Council had a conflict by discussing or voting on Bill 308, that Council could not authorize payment under Bill 308 because it had never previously authorized the action upon which payment was based, and that the four Council members would forfeit their office if they voted on Bill 308. Based on forty-five years experience as a lawyer including twelve years as a law professor and eight years as a member of the City Solicitor's office and research on all of those issues, I have concluded that all of those conclusions are erroneous.

I. A member of City Council does not immediately forfeit his or her office by violating any provision of the Home Rule Charter or state law.

Contrary to the conclusions reached in the City Solicitor's Memorandum, Section 308 of the Home Rule Charter is not self-executing and a violation of that provision or any other provision of city or state law cannot result in automatic forfeiture of office. In Citizens Committee to Recall Rizzo v. Board of Elections of City of Philadelphia, 367 A.2d 232 (Pa. 1976), the Pennsylvania Supreme Court held that under Article VI, Section 7 of the state Constitution, the only means by which an elected municipal official could be removed from office was after an evidentiary proceeding and a vote for impeachment by two-thirds of the members of the State Senate. In that case, the court specifically held that a recall provision of the Philadelphia Home Rule Charter was invalid because it conflicted with the procedure established in the State Constitution. More recently, the court affirmed and broadened the scope of that decision. In re Petition to Recall Reese, 665 A.2d 1162 (Pa. 1995).

Those cases were relied upon by then President Judge Robert Kelly of the Court of Common Pleas of Allegheny County when he struck down an attempt to impeach Mayor Tom Murphy under a procedure established in the Pittsburgh Home Rule Charter. Petition of Genco, 2003 WL 25542219 (Ct. of Comm. Pl. of Ally. Cty. 2003).There, Judge Kelly held that the State Senate had the exclusive power to remove the Mayor or any other elected City of Pittsburgh official from office.

Accordingly, even if a member of Council has a conflict of interest when he or she votes on a piece of legislation, that action cannot constitutionally operate as grounds for automatic forfeiture of office.

II. Even if four members of Council had a conflict and voted on the final resolution approving Bill 308, approval of that bill would be valid.

Assuming that four members of Council voted on Bill 308 and approved payment of legal fees in the amount of $11,000.00 and the Mayor signed the bill, the alleged conflict of interest would not nullify approval of that bill.

In Yaracs v. Summit Academy, 845 A.2d 203, 209 (Pa. Commwth. Ct. 2004), the court held that when a council member has a conflict of interest or violates a law by voting on a municipal resolution, the resolution may not be overturned. The exclusive remedy is that the offending council member is subject to the statutory penalty. In that case, the remedy was to fine the council member but not to reverse council's action. Accord, Salem Tp. Mun. Auth. v. Tp. Of Salem, 820 A.2d 888, 894 (Pa. Commwth. Ct. 2003).

Accordingly, although I would not recommend that any member of Council vote on a bill knowing he or she has a conflict of interest, if the state legislature, after an evidentiary hearing, at some time in the future determines that four members of Council have a conflict on Bill 308, that would not defeat passage of the bill if they were to vote affirmatively on it at this time.

III. City Council may approve or ratify payment of city expenses even if they were incurred without prior Council approval.

Municipal bodies have been legally approving payment of municipal expenses incurred without prior approval for well over a hundred years. In re Grading of Shilol Street, 30 A. 986 (Pa. 1895). That case is still cited as authority for that type of municipal action in McQuillen, The Law of Municipal Corporations §16:92 (2008).

This practice has been followed on a regular basis by City Council without objection by this City Solicitor and previous City Solicitors.

Accordingly, the failure of council to grant prior approval for the payment of the legal fees is not an obstacle to council later ratifying the expense and approving payment.

IV. All members of City Council may discuss and vote on Bill 308 without violating any conflict of interest laws.

The City Solicitor's conclusion that certain members of council could not discuss or vote on Bill 308 was not based on a thorough consideration of the underlying facts or the applicable law. A review of the nature of the proceedings before the Zoning Board of Adjustment, a Commonwealth Court decision on standing before that Board and Supreme Court precedent on conflict of interest can lead to only one conclusion in this unique situation. None of the members of council are precluded from discussing or voting on Bill 308 because of state or municipal conflict of interest laws.

The underlying action that precipitated this issue was a decision by the City Zoning Administrator to grant a permit to Lamar Advertising to construct a large LED billboard in downtown Pittsburgh. No one now disputes that the grant of a permit was illegal. The problem is, however, that the City Solicitor did not rule that the action was illegal until almost four months after the City Administrator issued the permit. By then, five members of City Council had already challenged the action before the Zoning Board of Adjustment and the City Solicitor had already begun defending the Administrator's illegal action before the Zoning Board.

The reason that the permit issuance became the subject of litigation was because Councilman Patrick Dowd, individually, filed an appeal with the Zoning Board days before the appeal period would have expired. Councilman Dowd does not live downtown nor does he represent that district of the City. He did not have standing to file that appeal individually. City Council of City of Pittsburgh v. City of Pittsburgh, 625 A.2d 138 (Pa. Commwth. Ct. 1993). On the last day for filing an appeal with the Zoning Board, Councilmen Douglas Shields, William Peduto, Ricky Burgess and Bruce Kraus all filed an appeal which was consolidated with Councilman Dowd's appeal. Like Councilman Dowd, none of those four councilmen lives in or represents the downtown area of Pittsburgh. The only way that the five councilmen had standing under Council of Pittsburgh, id. at 143, was if the parties to the litigation before the Zoning Board treated the five councilmen as representing City Council.

The present City Solicitor represented the City of Pittsburgh in the Council of Pittsburgh case before the Commonwealth Court and had to be aware of the standing ruling in that case. Yet he did not characterize the councilmen as acting individually before the Zoning Board nor did he attempt to dismiss any of the members of Council for lack of standing. Further their appeal was treated as an appeal by Council before the Zoning Board. (See transcript of ZBA, April 10, 2008, p.9).

Thus, the City Solicitor does not have a basis for now saying that the council members hired counsel as individuals or acted before the Zoning Board as individuals when he never raised that issue before the Board and allowed them to participate in the only capacity in which they had standing, as Council.

The legal expenses were incurred to correct an illegal action which the city administration discovered was illegal four months too late but which City Council acting through a majority was able to reverse through its last minute appeal. Council has the authority to hire its own lawyers. Section 310 of the Home Rule Charter.

The members of council who retained attorneys and waged a successful attack on the administration's illegal action cannot be precluded from voting on Bill 308 which provides for payment of those legal expenses. This issued was addressed by the State Supreme Court in Consumer Party of Pennsylvania v. Commonwealth, 507 A. 2d 323, 338, ftn. 18 (Pa. 1986) in which the court held that members of the legislature could vote to reimburse themselves for expenditures because conflicts laws relate "to the type of interest of which other members could not be aware". The Supreme Court recognized that conflict laws were intended for secret interests and not matters as open and as well publicized as this one.

Rather than relying on clear Supreme Court conflict of interest precedent, the City Solicitor relied on two quite different types of cases, Yocabet v. State Ethics Commission, 531 A. 2d 536 (Pa. Commwth. Ct. 1987) and Keller v. State Ethics Commission, 860 A.2d 659 (Pa. Commwth. Ct. 2004) (both of which were cited incorrectly by the City Solicitor making it difficult to find the cases).

In Yocabet, a Township Supervisor appointed himself to a township position. The Board then set the salary rather than the Township Auditor, as required under state statute. That case involved a clear violation of the Second Class Township Code by the Supervisor, not a violation of conflict rules. In Keller, the mayor charged money for performing weddings and put the money in his own account. The court found that he did not have any authority under the Borough Code to treat that money as his own. Again that case is not the least bit similar to this case in which Council is attempting to pay legal bills incurred in the City's and the public's interest. Further, unlike a true conflict situation, all facts involving those bills are well known to Council, the public and the City administration.

Accordingly, the legal expenses were incurred so that Council as a body could have standing to legally challenge an illegal administration action. The hiring of attorneys and the representation before the Zoning Board was public and well publicized. The council members' attempt to discuss and vote on Bill 308 was the type of action sanctioned by the court in Consumer Party, 507 A.2d at 338. The City Solicitor did not have a legal basis to preclude Council from discussing or voting on Bill 308 nor did he have a legal basis for threatening them with forfeiture of office.

Best regards,



s/Marvin A. Fein

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The Dueling Billboard Subpoenas That Might Have Been

Dueling subpoenas and depositions could have marked the start of a long and messy legal battle involving City Council members, Mayor Luke Ravenstahl, and Lamar Advertising. It appears that won't happen, thanks to a resolution of the conflict over the original permit for a large electronic billboard downtown. Here's a closer look at excerpts from the legal documents I covered in my Channel 4 Action News report. They show what that peacekeeping apparently averted.

In this post you'll find images of now-voided:

• Subpoena requests targeting Mayor Luke Ravensthal, Chief of Staff Yarone Zober, and URA Executive Director Patrick Ford, and

• Subpoena requests targeting communications with news organizations and with bloggers on the part of five City Council members.

These are the public records:

• subpoena and discovery motions from attorneys for City Council members Shields, Peduto, Kraus, and Burgess and subpoena and

• subpoena and discovery motions from attorneys for Lamar Advertising.

They were filed with the city Zoning Board this past week, before City Solicitor George Specter, attorneys for Lamar and attorneys for Councilman Dowd reached their agreement on how to resolve the dispute over the billboard permit.

Again, the subpoena requests and discovery motions are all now considered moot, but they would have covered a wide range of records:

• "including, but not limited to, correspondence, notes, letters, documents, emails, text messages, voice mails, cell phone records, calendars, receipts, check registers, calendars, log books message slips or other statements of correspondence) of communications", including many with "news organizations", "members of the press or blogs".

Note that the section dealing with communication with reporters and bloggers appears to have been much broader than the one that would have targeted only billboard related matters. It appears to have sought all "non-privileged records" of communications with reporters and bloggers.

First, click "Read More..." to expand the post and reveal the documents.

Then you can start clicking on each of the images to enlarge them to readable size.

(You can also click this permalink to see the entire post, images and all, in a separate window.)

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From the filing by the attorney for Council members Shields, Peduto, Kraus, and Burgess:







From the filing by attorneys for Lamar Advertising:

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Ethics Board Request: The City Solicitor Answers

City Solicitor George Specter

Here's the City Solicitor's response to my requests to the Ethics Board.

January 11, 2008

Bob Mayo
WTAE TV
400 Ardmore Boulevard
Pittsburgh, PA

Dear Mr. Mayo:


Thank you for your recent inquiry to Sister Patrice Hughes and the members of the Pittsburgh Ethics Board regarding the Board’s compliance with the Sunshine Act, 65 Pa.C.S. §701 et seq. However, in the future, I would ask that you direct all further inquiries in hard copy to my attention.
Please rest assured that the Board has received instruction about the purview of the Act from the City’s Law Department and is aware of the restrictions it imposes upon their activities. In response to specific questions to have posed, we respond as follows:

1. The memo authored by the law department summarizing the law is not subject to disclosure under Pennsylvania’s Right to Know Act, 65 P.S.
§66.1 et seq.

2. The Board intends to comply with the mandate of the Sunshine Act which requires open meetings in all cases where there is a quorum present, and where official action is taken or agency business deliberated. 65 P.S. §703. Whether the Board chooses to hold open meetings in situations not covered by this provision, for example when there is no quorum present, is a matter for their discretion.

3. There may be times when a meeting which otherwise meets the criteria of Section 703 may fall within one of the six enumerated exceptions for an executive session. In these cases, as you note, the Board is obligated to give a brief recap of the matters discussed in the executive session. At all future meetings which are preceded by a closed session, the Board will honor this practice.

4. We agree that mere briefings on other cities’ ethics codes would not fall within one of the six stated reasons for an executive session. However, as such a briefing would not involve official action or deliberation on agency business, it is outside the scope of Section 703, and no public meeting is required.

Your letter appears to suggest that the Board may never meet or communicate outside of an open meeting. We do not interpret the Sunshine Act in so draconian a manner, and the clear language of the statute supports our position.

Please be assured that compliance with the Sunshine Act is a priority for the Ethics Hearing Board.


Sincerely,


George R. Specter

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