COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE OF THE WHOLE - - - Room 400, City Hall Philadelphia, Pennsylvania Tuesday, April 27, 2010 10:20 a.m. - - - PRESENT: COUNCILWOMAN MARIAN B. TASCO COUNCILWOMAN JANNIE BLACKWELL COUNCILMAN DARRELL L. CLARKE COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN BILL GREEN COUNCILMAN WILLIAM GREENLEE COUNCILMAN CURTIS JONES, JR. COUNCILWOMAN MARIA QUINONES-SANCHEZ COUNCILWOMAN DONNA REED MILLER COUNCILWOMAN BLONDELL REYNOLDS BROWN BILLS 100115, 100116, 100117, 100118, 100131 and RESOLUTION 100141 - - - 2
Good morning. To those Councilmembers in their office listening, we are ready to begin our hearing this morning. We ask them to please come down, but in the meantime, we're going to begin with our hearing. Good morning. We will now continue our hearing on the budget bills and we now recognize the Defender Association. (Witnesses approached witness table.)
My name is Ellen Greenlee. I am the Chief Defender of the Defender Association of Philadelphia. 3 4/27/10 - WHOLE - BILL 100115, etc. With me here today are Charles Cunningham, First Assistant Defender.
And my Controller, Selim Tawadros, and the rest of the team that manages the work from the Defender Association - Assistant Controller Kristen Muhl; Business Manager Linda Kosinski; and my assistant, Christine Adler. I feel I must introduce them because they are so integral to the process of trying to keep us afloat in these economic times.
Our thanks to Council President Verna, to the other members of City Council for this opportunity to appear before you to present our appropriation request for Fiscal Year 2011, and in doing so, to thank you for your consistent support of our work for Philadelphia's poorest citizens. You have undoubtedly been 4 4/27/10 - WHOLE - BILL 100115, etc. somewhat worn down, I think, by this time with weeks of budget hearings by a parade of witnesses, all of whom need more support for their work and their programs. We too look for your support, but we differ from most supplicants inasmuch as our services for adults and juveniles charged with criminal offenses are constitutionally required to be provided by the State, which has abdicated its responsibility to fund indigent defense up to now, leaving the burden on the counties and specifically here on the City of Philadelphia. In addition to our legal representation in criminal matters, we represent dependent children as their child advocate, just about 4,000 children, and we also represent those with serious mental illnesses in both criminal and civil matters. As has been the case, I'm sure, with all who have appeared before you during these budget hearings, Fiscal Year 5 4/27/10 - WHOLE - BILL 100115, etc. 2010 has been a very difficult year for the Association and our staff. 3 million budget shortfall in 2010, which forced us to rescind the small salary increases given in 2008, to reduce our medical benefits, to impose a hiring freeze over the past one and a half years, and to postpone purchase of equipment and computer upgrades. In that timeframe, over the last one and a half years, we've lost 42 staff members, of whom are attorneys, 14 14 social workers, two investigators and 15 five administrative staff persons. These 16 are all positions we need to fill in 17 order to be able to provide effective 18 legal representation to our indigent 19 clients. 20 We have, as promised to Court 21 Administration and the City Administration, staffed all court assignments and turned away no clients this year, as we promised. This situation will have to change with the 6 4/27/10 - WHOLE - BILL 100115, etc. new fiscal year, as we are seriously understaffed and walking perilously close to ineffective representation with caseloads requiring two attorneys where we now have only one. The City's proposed budget of $35 million does not include any extra funding to cover the cost of increased operating expenses and medical insurance costs or funding to replace needed attorney staff. The Defender Association is not a City department, though we are included in all budget cuts imposed on City departments, but rather we are a non-profit corporation operating through a contract for services with the City. As a separate entity, we must provide all expenses of running a business; that is, pay our rent, buy equipment, telephone systems, computers, supplies, pay payroll taxes, provide benefits, including health, life, disability, workers' compensation, malpractice insurance, and 7 4/27/10 - WHOLE - BILL 100115, etc. business and property insurance, for starters. Defender staff members have gone without any type of salary increase or bonus since 2007. The concept of attorney pay parity for the legal offices in the City - the District Attorney, the Solicitor and the Defender - which was acknowledged by the last Administration has been totally lost. Our employees are no different from those employed by the City and City-funded departments, and they deserve equal pay. We are proud of our hard-working staff dedicated to providing the best legal services to our poor clients. In Calendar Year 2009, we received almost 70,000 new cases. As you can see from our workload figures included in our packet, the numbers of citizens whom we represent is staggering. As examples, we made 395,000 court appearances in 2009, which included 87,000 misdemeanor listings, 34,000 8 4/27/10 - WHOLE - BILL 100115, etc.
preliminary hearings, 18,000 felony listings, 5,800 hearings in delinquency matters, 50,000 probation and parole hearings, and 25,000 social service matters. I say that not to brag, but to give you some sense of the size of the operation we have, the numbers of clients we serve, which really is astronomical in an agency the size of ours. Despite dwindling staff and resources, we continue to be an integral part of the work of the criminal justice stakeholders in reducing the prison population and in providing services in the most economical manner. Our Probation and Parole and Alternative Sentencing Unit, along with our Adult Social Services Unit, work together to identify prisoners who qualify for alternative programs and meet with clients to discuss placement options. They identify clients for intermediate punishment programs and review inmates' commitment sheets to prepare early parole 9 4/27/10 - WHOLE - BILL 100115, etc. petitions for judicial review and potentially for early release in an effort to keep the prison population at a manageable level, and part of the reason that it has dropped by about a thousand in the last year has a lot to do with these programs in which we participate and are really the moving force in identifying clients eligible for alternatives to incarceration. The savings effected in reducing the number of days prisoners are incarcerated are enormous, and they're presented on Pages 5 and 6 of our presentation. Conservatively speaking, savings are calculated at more than $38 million in one year, which almost sounds like a joke, that it couldn't possibly be, but these calculations are, for the most part, done by the Court. This work could not get done without the Defender's Association's active participation. So I respectfully request that Council increase our Fiscal Year 2011 10 4/27/10 - WHOLE - BILL 100115, etc. 7 million to enable us to hire needed staff and to meet our increased operating expenses and benefits costs. Thank you for your attention and consideration of this request. I will certainly be happy to respond to your questions and concerns. Thank you.
Thank you very much. How many attorneys do you have now on your staff?
I think we are at just about 225. We should be, by our calculation, in terms of full staffing at 246.
Thank you, Madam Chair. I'm looking at your cuts from FY10, which resulted, if I read this correctly, in 49 layoffs. 11 4/27/10 - WHOLE - BILL 100115, etc.
Oh, no layoffs, no. This was by attrition. We've never had a layoff.
I was trying to understand your relationship with court-appointed attorneys, and are we forced to rely on them more because you do not have the adequate attorney staff to deal with the number of courtrooms and cases that you have? What has been the net impact of relying on court-appointed attorneys from the private sector?
There has not been any increase this year, because we have managed caseloads where, for instance, in a misdemeanor courtroom, we 12 4/27/10 - WHOLE - BILL 100115, etc. may have 40 to 50 cases listed. We have imposed that burden on one attorney, who should be handling to 25. There has 5 not been any increase because of -- we 6 have not given up any work or given up 7 any cases this year, but with Fiscal Year 8 2011, unless there is an increase and we 9 are able to hire more attorneys, we will 10 have to give up cases and give up 11 probably representation in some 12 courtrooms. We, of course, do not decide 13 which courtrooms we will not be able to 14 staff, but we will have to meet with 15 Court Administration and with the Deputy 16 Mayor to decide how that will be 17 effected. 18
And I know 19 you'll tell me that the quality of the 20 representation is still at a high level, but if we go forward, how is this going to impact the quality of representation that the defendants get, in your opinion?
Well, I would like to say that our representation is at 13 4/27/10 - WHOLE - BILL 100115, etc. the high level it's always been, but in all honesty, I don't think you can impose these burdens on single attorneys and expect that they are providing the maximum that they could to a client. We are getting by, and I'll defer to Charlie if he wants to comment, because he's the man on the ground and in the courtrooms in terms of that.
Let me just -- Charles Cunningham, First Assistant Defender. We have also over the past year had the assistance of some lawyers from the larger law firms, such as Ballad and Spahr and Dechert and even one lawyer who came to us from New York. Those attorneys will not be available to us next year, because all of those attorneys will be returning to their respective firms, and there's no indication that we'll have anybody this year, who basically were serving as volunteers in the sense that they were volunteers for 14 4/27/10 - WHOLE - BILL 100115, etc. us, but they were actually being paid by the law firms.
Is this a result of the state of private practice in Philadelphia that --
What happened was, a lot of the law firms last year did not want to bring on their new associates, and rather than bringing them on and paying them at the high salaries that they would have to bring them on, they decided that they would pay them a stipend and allow them to come and work in a public interest office. Those lawyers -- and fortunately for us, they have served well, but they will not be there next year and we will not have that assistance. So to a certain extent, we were able to do some of that load that way, but even now -- to give you an example, over the last two weeks, we have lost seven attorneys, and that puts us in serious jeopardy. And, you know, you can 15 4/27/10 - WHOLE - BILL 100115, etc. kind of put a load on the attorney for a while if there's some hope or some expectation that things are going to be relieved, but to look down the line and to think that they're going to have to do this continuously, you can't continue to impose that load on them, because you're going to burn people out and you're going to force those people who are dedicated to this type of representation to leave, because they simply can't deal with that kind of load. And, frankly speaking, they are very fine attorneys and they want to give good representation and they don't want to be put in a position where they feel as though when they walk into that courtroom, they can't give their client the kind of representation that that client deserves. Our clients only have one friend, if you will, or one thing going for them when they walk into the courtroom, and that is the attorney that walks in that courtroom with them. You 16 4/27/10 - WHOLE - BILL 100115, etc. can't put that kind of load on them continuously. Last week, I walked to the CJC with a young PD who had a bag containing close to 50 files. Her bag was so heavy that I took it off of her shoulder and put it on mine and carried it over to there. Just from a physical point of view, it becomes too much of a load, but when you think that you have to walk into that courtroom day in and day out and try to handle that many cases, it's just an impossible situation.
Following that line of questioning, how has it impacted continuances? I know for every action, there's an equal and opposite reaction. Does it impact that? And if it does -- second part of the question -- how is that resulting in longer stays for people that are incarcerated waiting trial?
Well, let me just give you one example. Because of 17 4/27/10 - WHOLE - BILL 100115, etc. the low number of attorneys that we have, we're unable to do our interviewing of our custody clients. So consequently, because we can't get up and interview the clients and they're in custody, you're going to find more continuances simply from that point of view, that you're going to have to take a continuance because you can't go forward unless you have an opportunity to consult with your client and talk with your client. So this means that you're going to have a continuance. Most of the continuances -- the shortest continuances right now seem to be three weeks. So that's three weeks that that person has to remain in custody, when possibly had that case been heard at the initial listing, it might have been disposed of and that person may not in fact continue to be in custody. So it's going to impact on your ability to be prepared, and I think that in the Municipal Court, we try to give 18 4/27/10 - WHOLE - BILL 100115, etc. our attorneys a little bit more time, but the fact of the matter is, once again, you're putting a very heavy load on people.
One of the bright spots of this whole process for me is the Criminal Justice Advisory Board, which kind of has broken down, in my opinion, some of the silos of communication. So there are people at the Judicial level and at the DA's level and the Prison and the Police Commissioner that are all listening to these problems and understanding the consequences of decisions. What is important and the reason why I drew this out is because it's important for us as budget authorizers and lawmakers to understand that as we cut, there are unintended consequences that have impacts that we are being sometimes penny wise and then pound foolish, because we wind up shifting the cost to another line item in 19 4/27/10 - WHOLE - BILL 100115, etc. another department's budget. My final question for this round will be, I notice that you are touting $38 million in savings that can be attributed to alternative sentencing programs, and could you talk about the impact of that? And my dear project is community courts and alternate courts. We call them by many different names, but hopefully with the same result of lightening the load of incarcerated individuals that can seek punishment outside of the walls of prison. So can you talk about how that savings has happened?
Well, the savings that Ms. Greenlee was speaking about are mainly the savings that occur by allowing, for instance, early parole petitions to be filed, and when you file 22 those early parole petitions --
Right. And I 20 4/27/10 - WHOLE - BILL 100115, etc. should mention that when we talk about filing these early parole petitions, we're not just talking about the parole petitions that went for Defender clients alone. Many of those petitions are involving clients that were represented by court-appointed counsel and sometimes they were also petitions that were filed by clients who were originally represented by retained counsel, who can no longer afford retained counsel and, in the situations with the court-appointed counsel, do not -- the court-appointed counsel, they will not continue to stay in the case. So those people, if it were not for the Defender Association, would not have those petitions filed for them, or in the alternative, the City and the Court Administration would have to take on the cost of appointing counsel for them. So those are savings that are being done by just the early parole petitions. But there are a number of other 21 4/27/10 - WHOLE - BILL 100115, etc. places that the Defender Association, frankly speaking, is saving the City money. For instance, we have sat down with the District Attorney, and I think it was about two weeks ago you had the District Attorney in, and we had the opportunity to sit and listen to his testimony as well. And I think you should keep in mind that each and every one of the programs that the District Attorney talked about that will in fact impact on the prison population and cut down on the number of people who will be entering our prison system, all of those programs the Defender Association is a vital cog in keeping going. For instance, we're talking about now expanding Crash Court, which is basically a court that's set up to dispose of misdemeanor offenses, and rather than having the defendant brought down to the Criminal Justice Center, we'll be able to dispose of that case by way of a video. Well, if you look at the 22 4/27/10 - WHOLE - BILL 100115, etc. number of cases that are going to be disposed of, you're not only getting those people out of the prison system faster, but you're also eliminating the need for the police officers to come to court and testify, and, therefore, that's going to impact on the amount of overtime that we're going to be --
That's not even reflected in that $38 million. When we looked at that $38 million, that $38 million is simply the savings as a result of one function that this office does; that is, filing early parole petitions.
So, I mean, I'm -- one of the -- I'm going to let my other colleagues have another round and I'll address this a little further, but I think it's important that as we start to deliberate about this budget, it is important that when we touch something, tinker with something, cut something, 23 4/27/10 - WHOLE - BILL 100115, etc. that at this point -- I think we eliminated a lot of fat before, but when we start talking about unfilled positions, that at some point we hit effectiveness, which creates other costs in other colleagues, in other departments, and I think sometimes we lose that fact in thinking that we're doing a good thing by being cost conscious, but that does not necessarily equate to cost effective.
Right. I think what you're saying is that we always have to look down the line to see how one thing is going to impact on the other thing, and I think you're right there. I also want to say this to you in response to what you said about the CJAB, and I think you're right, that there are more things that are being accomplished since the creation of the CJAB. I think that it's not just that people are brought together, because I 24 4/27/10 - WHOLE - BILL 100115, etc. can tell you, frankly speaking, and sad to say that many of the people that are at the table today at the CJAB were at the table when the Mayor, the former Mayor, had his Criminal Justice Coordinating Committee, and for many years things were being talked about. I think the real difference today is that people are not only listening, but people are taking action, and that is why we are seeing a reduction in the prison population, that is why I think we're going to see a more efficient criminal justice system.
I think it's good leadership, except for one slight oversight, they didn't put me on CJAB.
No. We'll correct that in the future. Thank you, Madam Chair.
If I might, 25 4/27/10 - WHOLE - BILL 100115, etc. though, just add one thing, talking about cutting. We talk about losing 42 positions. You'll note that what we're asking for is to replace the attorney positions so that we can continue to staff the courtrooms and represent our clients. This is -- we are not asking for the whole of those 42 positions to be replaced at this point in time. We have trimmed our request to the bare minimum, that unless we have the attorneys, we can't staff the courtrooms. We -- as Selim points out to me very carefully, there is no fat in our budget and there's no fat in our operation. We have trimmed over the last three years everything that you could possibly trim, from medical benefits to not replacing computers to being as lean and spare as we possibly can in terms of how we spend the money that the City gives us.
Identify 4/27/10 - WHOLE - BILL 100115, etc. yourself, please.
Selim Tawadros, the Controller. We were ordered twice before checking for any fat in the budget, and the results came there is nothing to cut, and that's all what we have is essential to the business.
I just have a couple of quick questions. What's the acquittal rate of the Defender's Association? I know people traditionally ask --
Just an estimate. 27 4/27/10 - WHOLE - BILL 100115, etc.
I can tell you what the conviction rate in the Court of Common Pleas is.
Ninety-three point four percent. So ours is not anywhere near that.
Those figures that were presented in the Inquirer were made of whole cloth. They have no 14 relationship to the reality of what's happening in the courts.
The suggestion that only 20 percent of persons charged with a serious felony are convicted of a felony is absolutely wrong, because the conviction rate in the Court of Common 28 4/27/10 - WHOLE - BILL 100115, etc. Pleas for felonies is 93.4 percent. So when you ask what's the acquittal rate, I don't mean to be -- to treat it lightly, but we don't -- we're not computerized to keep those kinds of things. But if we were winning to percent of our 8 cases, we'd be very happy. 9
Okay. I 10 mean, I ask that because I guess in some 11 sense it determines the effectiveness of 12 the office. 13
I'm not as verse as my colleague Councilman Jones on this whole subject matter. So I'm just asking a layperson's question.
Let me also say this with regards to acquittals: It depends on how you define an acquittal. 29 4/27/10 - WHOLE - BILL 100115, etc. Is an acquittal a complete finding of not guilty or is an acquittal being found not guilty of certain charges but guilty of other charges? So there may be times when your client may be convicted of a misdemeanor when he was actually charged originally with a felony. So it's a little harder to really break those numbers down. But I think that if you were to look at those cases that actually go to trial, I think that Judge Keogh, who is the Administrative Judge, had those figures and the First Judicial District can supply you with those figures. And if you look at the figures that they supply you with, you will find that they're nowhere close to being what the Inquirer says the number of people who are being acquitted of crime are.
I actually did not read the Inquirer article, so your reference to that is, frankly speaking, lost on me.
I don't think 30 4/27/10 - WHOLE - BILL 100115, etc. you'll find anybody sitting at this desk that would suggest that you do read the Inquirer's article.
Well, I say that particular article, because you referenced it. So I'm not asking the question based on that particular article. It was just something that I... In terms of the appellant process, is the Defender's Association's office involved in that aspect of the justice system?
Yes. If there is an appeal, we have an Appeals Unit that will handle the cases that we're going to appeal.
Our Appeals Unit only handles those cases that our 31 4/27/10 - WHOLE - BILL 100115, etc. lawyers handle from beginning.
And how far does the appeals process -- is there a threshold in terms of the representation of your clients?
They will take the appeal all the way up to whatever court they think it's necessary to appeal it to.
Okay. In terms of the workload associated with the appellant process, is there a breakdown on the number of clients/lawyers that are involved in that process?
Is there a breakdown on the Appellant Unit in terms of --
I think we have 17 attorneys that are assigned to our Appellate Unit.
So they work 32 4/27/10 - WHOLE - BILL 100115, etc. full time in the Appeals Unit. They don't do trial.
Okay. I'm more knowledgeable than I was before you came in today.
And perhaps I think that I want to say to every member of City Council that you are always invited to the Defender Association and you can always come over. All right? We made that invitation before, and we extend that invitation again.
I actually think that's a very fair invitation, given that the new District Attorney invited members of Council to his office, and it was actually my first time in the District Attorney's Office. So I think it's appropriate for Councilmembers to find their way to the Defender's Association. 33 4/27/10 - WHOLE - BILL 100115, etc.
All right. I think that's a fair question. Thank you. Thank you, Madam Chair.
I think growing up in the inner city of North Philly and West Philly, we had this slight aversion, phobia to ever going into either one of those buildings, but now I think we can overcome those inner city phobias and take up that invitation. I wanted to follow the line of questioning on the alternate sentences and also the kind of broad view of the importance of CJAB and all of those entities talking to each other. Parole and Probation by way of alternate sentencing, does their role go up when we remand someone to an alternate 34 4/27/10 - WHOLE - BILL 100115, etc. sentencing program, whether it's -- whatever the choices are? Do we usually assign a Parole/Probation person with them? Is that how this process works, to monitor their case?
No, not do you. In the process, is there a court -- when someone is recommended drug treatment court or a number of other venues that have come --
No. I don't think that -- for the most part, there's sufficient staffing in the Probation Department for most of these programs, but a lot of the programs involve case managers and other people who work with the clients.
So they may not be a probation officer -- 35 4/27/10 - WHOLE - BILL 100115, etc.
-- but they may be a social work or drug treatment counselor that has the authority to report back to an entity to say that my client is not complying or is complying with the prescribed sentence? If you don't know, that's fine. I'll get somebody up here that does eventually. So you don't know?
I'm not certain of that, Councilman, but I can find that information out for you. And, frankly speaking, had I known we were going to go down -- you were going to ask questions along those lines, we probably would have brought Byron Cotter, who is the Chief of our VOP Unit and Intermediate Punishment.
When I look at these savings of 10.8 million because of these types of alternate sentencing, it is a compelling road to want to go down, but one of the things that we are 36 4/27/10 - WHOLE - BILL 100115, etc. going to have to get a grip on is true cost and where to associate and apply those costs so that if we think we are saving money but we're just shifting it, we need to monitor this in a cost accounting way so that we understand whether the City as an entire entity, not just your department, is realizing a savings based on some public policy shift that we have. And then also one of the other statistics we need to take a look at is the number of people who recidivize based on participating in those programs. So if we are just delaying the inevitable, then maybe we should hasten that along, but if we are providing an alternate future for some of these people, then we're on the right course, and monitoring that is as important as the diversionary court.
We have done some monitoring on our own and it's not anything that's been done in-depth, but what we found is, a lot of times in these 37 4/27/10 - WHOLE - BILL 100115, etc. situations where we have been able to provide the client with some alternatives to -- in other words, we've been able to help this client find housing, help this client find possible employment, you will definitely see a reduction in recidivism, and we have seen that with some of our clients, which is one of the reasons why we look at these situations and we understand that you have to go beyond just putting somebody under control. You have to give the person the tools that they need, and that's why we're talking about programs like reentry programs and how are we going to go about putting this person in a position to succeed once he does reenter our society. And I think that you're right, we have to monitor those things, but I'm confident that when we monitor those situations, we're going to find that there's less recidivism. If you go to Treatment Court, you will find that because they're more involved with the person, they're more 38 4/27/10 - WHOLE - BILL 100115, etc. involved in what's going on in that person's life and they are helping that person go beyond what that person is going to be doing in that courtroom setting, you will find that their recidivism rate is far less than in the situations where they're not getting the same kind of attention, so --
But you need to understand that I believe you, but trust without verification --
Listen, we -- and I mean the bigger "we" -- have to monitor this, because we are a diverse Council, we're a diverse City. There's some people who are more to the right and conservative and traditional in the crime and punishment notion. What will appeal to them is not the good that we do for society per se but the good that we do by way of budget and cost containment, and for them -- we have people that like 39 4/27/10 - WHOLE - BILL 100115, etc. Budget Director Agostini who will say if it ain't measured, it ain't managed, and we need to measure those things so that we can quantify our good works.
I don't disagree with that. As a matter of fact, I think that in most situations today whenever anything is started, people are looking for a way to implement a monitoring system as well, because that is the only way that you can really determine the effectiveness of the program.
Finally, you're a non-profit. Quickly, what was the logic in establishing a non-profit as opposed to a City department, A, and then, B, are you under our benefit pension package?
I would have dropped out a long time ago had I had that opportunity.
The non-profit was set up more than 40 years ago to contract with the City of Philadelphia. I think Philadelphia was carved out, because in all the other counties, the defenders are county employees, and it's before any of us were involved in the Defender Association that this non-profit was set up, and I don't offhand know the history of it, but Philadelphia because of its size, I think, was carved out as not being part of the government but being a non-profit, and then we started in the late '60s to contract with the City. As I mentioned, we run our business ourselves, which is why we need assistance with increases in operating expenses and medical insurance and other 41 4/27/10 - WHOLE - BILL 100115, etc. items that we have to purchase, because we are not part of any City plan.
Ms. Greenlee, on that thought, are your healthcare costs, I see, are projected to be increased by percent? 8
Now, how 11 does that fall compared to City benefit 12 healthcare cost increases, and is there 13 any consideration of buying into our pool 14 of healthcare? Was that -- 15
We have never had costs that exceeded what the City is paying and the percentage that the City pays.
We had had discussion and the business managers had discussions some years back with the City, but they decided they didn't want us, decided to leave us alone, that 42 4/27/10 - WHOLE - BILL 100115, etc. actually we are more financially in a better position than the City is in terms of our benefits costs.
Thank you. Let me just ask you one question. You said in other jurisdictions their defender association is part of the county?
County commissioners. County commissioners control their budget and control their staffing, actually. They're county employees.
Okay. All right. Thank you. Any other questions? (No response.)
Thank you 43 4/27/10 - WHOLE - BILL 100115, etc. so much for your testimony.
Thank you. Our next group would be the Law Department, but they're not scheduled until 11:30, so I guess we can come back at 11:30. Is there anyone else here to testify on this budget of the Public Defender's budget? (No response.)
We're going to get started. We're going to now hear the testimony on the Law Department. (Witnesses approached witness table.)
Good morning, Madam 44 4/27/10 - WHOLE - BILL 100115, etc. Chairperson.
Okay. Good morning, Madam Chairwoman and members of City Council. I am City Solicitor Shelley R. Smith. With me today are Donna J. Mouzayck, First Deputy City Solicitor; Elizabeth Mattioni, Chair of Litigation; Vanessa Garrett Harley, Chair of Social Services; Daniel Cantu-Hertzler, Chair of Corporate and Tax; and Nicholas Susi, Director of Administration. I am pleased to have this opportunity to testify in support of the Law Department's Fiscal Year '11 budget request. Here is how our Fiscal '11 budget request compares to estimated 45 4/27/10 - WHOLE - BILL 100115, etc. Fiscal '10 obligations: General Fund: The Law Department requests $10,586,545 in Class 100; 7,813,911 in Class 200; 226,759 in Class 300; and 38,265 in Class 400 funds, for a total of $18,665,480 in the General Fund, a net decrease of $882,838 from estimated obligations for Fiscal '10. The Department will decrease its General Fund budgeted staffing levels from 203 from Fiscal '10 to 190 for Fiscal '11. From the Water Fund, the Law Department requests $3,251,388, an increase of $100,808 from estimated obligations for Fiscal '10. From the Aviation Fund, the Department requests $1,878,074, a decrease of $26,159 from estimated Fiscal '10 obligations. From the Community Development Fund, the Department requests $208,789, a decrease of $6,525 from estimated Fiscal '10 obligations. 46 4/27/10 - WHOLE - BILL 100115, etc. And from the Grants Revenue Fund, the Department requests $21,842,820, an increase of $1,158,820 from estimated Fiscal '10 obligations. The mission of the Law Department is to provide high-quality and timely legal advice to all officials, departments, boards and commissions within the City. The work of the Law Department is largely responsive, as we are required under the Philadelphia Home Rule Charter to provide legal representation to all City departments, boards and commissions and to all City officials and employees in matters arising from the performance of their official duties. Consequently, the Law Department has little, if any, control over the number or types of matters it handles. In this year's budget, we have worked with the Budget Office to allocate an amount of money that reflects the reality that the Law Department must have 47 4/27/10 - WHOLE - BILL 100115, etc. sufficient resources to fulfill its Charter mandate, and we continue to work with the Revenue Department to enhance delinquent tax collections for the benefit of the entire City. Revenue initiatives: This fiscal year we are projecting to bring in $69 million in delinquent tax collections, down considerably since some of what would be collections by Law or its collection firms will now be recorded under the City's temporary tax amnesty program and due to the continued downturn in the economy. 3 million. 2 million in net revenues to the City, exceeding prior year recoveries by approximately $900,000. As a result of these efforts, we project that the 48 4/27/10 - WHOLE - BILL 100115, etc. overall collections by the Law Department for Fiscal '10 will total just over $75 million. In addition to our delinquent tax collection efforts, the Law Department continues to work closely with Revenue on a number of initiatives, including updating regulations to improve taxpayer understanding and enforcement; moving toward creating a unified database for shared tax information with the Department of Revenue, with help from the Division of Technology; drafting legislation for mandatory electronic payment and electronic filing, which will lead to more timely posting and application of taxpayer payments, putting money into the City's coffers more quickly and reducing confusion for taxpayers related to delays; competitive procurement of collections firms to enhance the City's collections of all types of delinquent taxes as well as bail forfeitures; more aggressive efforts to 49 4/27/10 - WHOLE - BILL 100115, etc.
obtain agreements for payments in lieu of taxes from commercial tenants of properties leased from non-profit or otherwise tax-exempt property owners, an initiative that is expected to generate $750,000 annually; stepped-up efforts to contact delinquent taxpayers and corporate officers directly before bringing suit against them, an effort that has resulted in a 28 percent increase in collections by the Major Tax Enforcement Division during the first nine months of Fiscal '09; and preparation for the temporary tax amnesty program scheduled to begin in May. 5 million for Fiscal '10. These costs exceed the amounts spent in the prior two years due to an increase in the number of cases filed against the City and due to the fact that a few very large litigation cases were settled in Fiscal 50 4/27/10 - WHOLE - BILL 100115, etc. Years '09 and '10, impacting indemnity expenditures. For comparison purposes, in Fiscal '05, the number of new suits brought against the City totaled just 1,010. Each following year through Fiscal '08, new suits rose. In Fiscal '08, 1,487 new suits were filed, 1,324 were filed in Fiscal '09, and we are projecting new suits to rise again by the end of Fiscal '10 to 1,476.
I understand. I didn't want to keep speaking while you were distracted. These additional lawsuits have resulted in an increase in payments and indemnity costs. From Fiscal '04 through 51 4/27/10 - WHOLE - BILL 100115, etc. Fiscal '06, the average number of cases closed was 1,096. In contrast, from Fiscal '07 through Fiscal '09, the average number of closed cases increased to 1,313. 7 percent more cases over the past three years. Specifically, in Fiscal '09, 1,312 cases were closed, and we project that by the end of Fiscal '10, nearly 1,400 cases will be closed. As of December 30, 2009, the Law Department was defending 1,597 active litigation matters. During just the first half of Fiscal '10, the Law Department closed a total of 686 cases. 1 percent of its risk assessment. 7 percent, 265 cases, were closed with payment. Despite the fact that a vast majority of these suits are ultimately deemed to be 52 4/27/10 - WHOLE - BILL 100115, etc. without merit, the Law Department is still obligated to spend resources to defend the City and to budget funds that may be needed to pay out claims. Last year, the Civil Rights Unit successfully defended more than ten cases at trial, including the estate of Danieal Kelly versus the City, which arose from the tragic death of a disabled child while in her abusive mother's custody. The estate brought a civil rights action against the City and others. After the City filed its motion to dismiss, counsel for the estate amended the complaint, withdrawing all claims against the City, effectively ending the City's involvement in the civil suit. Accomplishments of the Claims Unit include six wins in the six cases that went to trial, a winning percentage of 85 percent in the cases arbitrated, and successful results in all matters taken to alternate dispute resolution. 53 4/27/10 - WHOLE - BILL 100115, etc. Had this unit not been as successful, based on the injuries reported, the City would have been facing payments in the millions of dollars. Finally, administrative improvements were also initiated this past year to make that unit more efficient, including the use of the 4D case management system to open and close files. The Law Department has served as a major resource providing support and assistance to the Residential Mortgage Foreclosure Diversion Program in the Philadelphia Court of Common Pleas, which has received national recognition as a model government initiative. Senior attorney Lesia Kuzma provides continuing assistance to the Court and the program as Chair of the Mortgage Foreclosure Steering Committee, and we have implemented new outreach efforts for housing counseling agencies to improve the effectiveness of this program. 54 4/27/10 - WHOLE - BILL 100115, etc. Over the past six fiscal years, from Fiscal '04 to Fiscal '10, as a result of electronic filing, e-mail and the increased technological proficiency of the attorneys, the Law Department has reduced support staff on the General Fund by percent, from 98 on staff in Fiscal 9 '04 to 82 on staff in Fiscal '10. In 10 addition, the Law Department has reduced 11 its paper costs by 48 percent, from 12 $77,045 in Fiscal '08 to an estimated 13 $40,000 in Fiscal '10. 14 The Law Department is committed 15 to supporting the Administration's goal 16 of 25 percent minority, women and disabled-owned business participation in citywide contracting. Specifically, based on the Law Department's available contracting opportunities for Fiscal '11, the Department's participation goal is 22 percent of its obligations. We are proud 23 of our continued commitment to diversity 24 contracting, which resulted in 23 percent 25 of contract dollars being paid to 55 4/27/10 - WHOLE - BILL 100115, etc. minority and women contractors in Fiscal '09.
We continued with the majority of those contracts in Fiscal '10, resulting in 42 percent of Law Department contract expenditures paid to OEO-certified vendors and, therefore, we project participation to be at 28 percent by the end of the current fiscal year. In addition, we remain committed to the maintenance of a highly professional Law Department that both reflects the diversity and exceeds the expectations of the citizens of Philadelphia we serve. 2 percent are women. This fiscal year, we have focused our hiring efforts in the areas of General Litigation and Labor and Employment, two areas where the greatest need for non-conflict outside counsel 56 4/27/10 - WHOLE - BILL 100115, etc. arises, so that we could keep more legal matters in-house at a fraction of the cost. As we replaced staff, fewer cases were assigned to outside counsel, some matters were brought back into the Law Department, and other cases originally assigned to outside counsel have now been closed. As a result, the Law Department has been able to reduce outside counsel obligations. 36 million, or 34 percent. We hope to see a continued decrease in Class 253 expenditures as the number of active cases handled by outside counsel are closed. Thank you for the opportunity to testify today on the Law Department's Fiscal '11 budget request. I look forward to continuing to work with members of City Council in the 57 4/27/10 - WHOLE - BILL 100115, etc. performance of my duties as City Solicitor, and should any Councilmember wish to engage in further discussion on any of these matters, my staff and I are happy to meet with Councilmembers at their convenience.
Thank you very much. On the first page of your testimony, you talk about the Water Fund, an increase; the Aviation Fund, a decrease; Community Development, a decrease; and an increase in General Fund. Could you kind of explain those to us, please.
Right. What's the Water Fund increase? What does that mean?
So the increase in the Water Fund request reflects an increase in obligations on expenditures already on that fund. All of the positions -- we have some positions that are on the Water Fund in the Law Department and we filled them all, and so that slightly increases the obligations to that fund. And the increase in the Grants Revenue Fund reflect a cushion for amnesty as well to pay the vendor from the Grants Revenue Fund, which is how those vendors are always paid.
That probably reflects a decrease in -- we have positions funded by the Aviation Fund as well, so that probably reflects a reduction in the positions and the salaries paid from the Aviation Fund.
All right. And $6,000 from the Community 59 4/27/10 - WHOLE - BILL 100115, etc. Development?
Same would be true for that. Those positions are housing positions typically, and so that reflects a decrease in the salary obligation for our Community Development-funded position.
I'm good. I'm in need of some legal advice. The first question is, does City Council have the legal authority to establish contract participation goals for disadvantaged businesses?
I believe -- could you repeat the question? 60 4/27/10 - WHOLE - BILL 100115, etc.
Does City Council have the legal authority to establish contract participation goals for disadvantaged businesses?
I believe that Council's authority to do that has been effectuated through the requirement of, in various places, of the equal opportunity plans that contractors have been required to submit on various projects.
I meant in general does Council have the legal authority to establish the annual participation goals?
Did City Council ever have that authority? 61 4/27/10 - WHOLE - BILL 100115, etc.
Let me -- can I get back to you in a moment with an answer to that? I want to review with the people who -- yes. Dan, can you?
The Ortiz bill, No. 030125, repealed Chapter 17-500 of The Philadelphia Code. It rewrote that section and actually gave City Council that legal authority. Then-Mayor Street signed it into law in a public ceremony. The question is, was it ever law?
030125. 62 4/27/10 - WHOLE - BILL 100115, etc. It's the Ortiz bill that was co-introduced by then-Councilman Nutter. He chaired the committee hearing. He voted as part of a unanimous vote. Mayor Street signed it into law in a public ceremony. Then when he took office for his second term, there was a Law Department opinion that was issued that the bill was not legally valid. So the question is, when the Mayor, Mayor Street, signed that bill into law, was it in fact law?
I believe -- I'm not familiar with that -- with exactly what that specific bill provides. So I'm happy to go back and look at that specific bill. However, in general --
Well, I'm not sure it's necessary, because in general, the answer to your question, when that situation exists generally, is that the Law Department takes the position that 63 4/27/10 - WHOLE - BILL 100115, etc. where Council enacts an ordinance that is beyond its Charter-granted authority, those ordinances are not enforceable.
Okay. That's fine. I was just going to tell you what the specific law was, whether it was enforceable or not, which leads to my next question. Who determines which ordinances are valid?
Well, there -- valid. The Administration -- an administration can ask, as can Council, any client can ask the Law Department for advice as to whether an ordinance is enforceable. Valid is not the word I would use, because it can be validly enacted but still not enforceable. So any client can ask for advice as to whether an ordinance is enforceable, legally binding. And even though an ordinance has been validly enacted, it may still not be enforceable, because it may have exceeded Council's authority to act as provided by the 64 4/27/10 - WHOLE - BILL 100115, etc. Charter.
So we advise clients on that particular question. Ultimately obviously an official determination of the enforceability or the legality of an ordinance would have to be determined by a court, but the Law Department advises clients on that question.
The word for today is "enforceable." What is legally enforceable now? In other words, what is the Administration's legal framework for establishing participation goals or what is law within the Charter, within the Code? In other words, the original Chapter 17-500 was introduced by Councilwoman Blackwell. It was actually vetoed, I believe. The veto was overridden. There's question as to under that logic whether the original Chapter 24 17-500 was enforceable or is enforceable. There's question about whether the 65 4/27/10 - WHOLE - BILL 100115, etc. rewriting of that Chapter by Councilman Ortiz, whether that is legally enforceable. My question is, in terms of our ability to establish participation goals for minority, women and disabled-owned business, what is legally enforceable and what is the legal framework for establishing participation goals?
When you say "we," you mean Council, right, not the Administration generally?
You mean the City? Okay. I believe that -- I know that Michelle Flamer in our office has worked extensively with the Office of Economic Opportunity on these questions. And I don't have the Charter in front of me, nor do I have Councilman Ortiz's ordinance in front of me. So what I would like to do, if you would allow me 66 4/27/10 - WHOLE - BILL 100115, etc. to do so, is go back to the materials that we've already developed on this to advise OEO and then provide you with an answer.
I would actually love to have that in writing in terms of what provisions within the Charter and what provisions within The Philadelphia Code are legally enforceable in terms of establishing participation goals for disadvantaged businesses. I guess the only primary questions I would ask are that it's assumed that everything within the Charter is legally enforceable; is that correct?
Presumed that? In theory, there could be Charter provisions -- I haven't committed the Charter in its entirety to memory. Conceivably there could be Charter provisions that have been duly enacted by the voters that for one reason or another run afoul of other legal provisions, the federal constitution being just one 67 4/27/10 - WHOLE - BILL 100115, etc. example of that.
But aside from State and federal law, it's assumed that everything within the Charter is legally enforceable?
Well, I mean, I don't want to say that it's presumed that everything is -- assuming that it is lawfully within -- that it was lawfully within the power of the City to add a provision to the Charter, then, yes, it is presumed that those -- that the Charter provisions are enforceable, yes, but there are obviously broader legal considerations.