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Review the civil complaint and the city's response here

IBID Associates filed a lawsuit against City Councilmember Jamie Gauthier after she used councilmanic prerogative to push through a bill that prevented them from demolishing townhomes in her district. IBID said it was anti-constitutional.

Read the complaint below:

[pdf-embedder url=”https://thephiladelphiacitizen.org/wp-content/uploads/2022/03/The-Fix-Verified-Complaint-DMFIRM_402240556-1.pdf” title=”The Fix Verified Complaint DMFIRM_402240556 (1)”]

 

And see Gauthier’s response here:

[pdf-embedder url=”https://thephiladelphiacitizen.org/wp-content/uploads/2022/03/The-Fix-City-Response-Brief-to-TRO-Motion.pdf” title=”The Fix City Response Brief to TRO Motion”]

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The Fix: Is City Council Anti-Democratic?

The public corruption trial of Councilman Kenyatta Johnson and a lawsuit against Councilwoman Jamie Gauthier puts the practice of councilmanic prerogative on trial

The Fix: Is City Council Anti-Democratic?

The public corruption trial of Councilman Kenyatta Johnson and a lawsuit against Councilwoman Jamie Gauthier puts the practice of councilmanic prerogative on trial

It was a telling and depressing scene. On the eve of their federal public corruption trial, City Councilman Kenyatta Johnson and his wife, Dawn Chavous, convened a few friends for a public “Pre-trial Victory Prayer Service,” and it bears naming all those who shamefully stood shoulder-to-shoulder with a couple accused of bilking taxpayer dollars:

There was Council President Darrell Clarke, along with colleagues Isaiah Thomas, Jamie Gauthier, Cherelle Parker, and Mark Squilla. State Rep Jordan Harris also came out in support, as did State Sen. Anthony Williams.

It got me thinking about the ever-dwindling nature of shame in our politics. There’s a trend here. Councilmembers—lawmakers—were just fine with sitting on a legislative body with a convicted colleague, before Bobby Henon resigned his seat. Now, many turn out in support of another member of that august body who just might be facing a federally-mandated vacation. In other cities, some political shunning might have been in order.

If you’re a hard-working, tax-paying, law-abiding constituent, it is essentially a mystery as to how to get your elected official to work as hard for you as they do for private interests and their own political concerns.

“The function of pain is to prevent us from damaging our own tissue,” write the authors of a study on shame’s role in human evolution. “The function of shame is to prevent us from damaging our social relationships, or to motivate us to repair them.” No wonder our public life is in tatters—shame no longer constrains.

Now, to be clear, I don’t know that Johnson and his wife will be convicted. They’re accused of using Johnson’s ever-powerful councilmanic prerogative to bestow favorable treatment upon developer Universal Companies, founded by the legendary Kenny Gamble, in exchange for a series of bribes concealed as payments to Johnson’s wife’s consulting firm. The indictment alleges that Chavous did “very little work” in exchange for the payment.

Hmmm…sound familiar? Remember that, in the Dougherty/Henon trial, labor leader John Dougherty was heard on federal wiretaps musing over giving Chavous a job in order to get Johnson on board with his nefarious plans.

A pattern? Maybe, but it bears noting that Dougherty never acted on the fantasy. I always defer to the wisdom of juries; in this case, a panel of Johnson’s and Chavous’ peers will decide whether they broke the letter of the law. One insider observed to me that Universal may have thought they were bribing Johnson and Chavous, but that Johnson and Chavous might not have shared that understanding—an interesting distinction. We’ll see. Maybe the facts will show it’s legal to use the power of your office to benefit a political benefactor who hired your wife as a consultant in what the feds, at least, characterize as a no-show job. But, surely, in our court of public opinion, it is safe to say that that sure sounds counter to the interests of the common good.

Councilmanic prerogative on trial

What’s really on trial in the Johnson case is the corrosive influence of the city’s tradition of councilmanic prerogative, the longstanding gentleman’s agreement that gives district councilmembers unfettered control over land and development issues on their turf. That makes such transactions political as well as economic. Even when there is nothing wrong legally—and usually there is not—suspicion remains that the process is wired: that only the connected benefit, irrespective of the city’s interests. Or that projects are subject to side deals involving only developers and politicians.

Councilmanic prerogative not only invites corruption, it creates a set of fiefdoms and sends a message that we’re not really one city—we’re a bunch of disparate districts run by a bunch of warlords. No wonder, then, our imposing history of perp walks—so many lawmakers cuffed and marched off to prison, which we here at The Citizen have memorialized with our public corruption trading cards: I’ll trade you a Fumo for a Mariano and a Seth Williams!

The fact is, in addition to separating Philadelphia into a city with two distinct sets of rules—one for the insiders, one for the rest of us—councilmanic prerogative and other forms of Philly’s corruption hit the average taxpayer right in the pocketbook. According to one study a few years ago, the “corruption tax” for an average Pennsylvanian is about $1,300 a year.

That’s why, in contrast to our “go along to get along” mayor and council members, Chicago Mayor Lori Lightfoot has been on a daring public campaign to rid her city of their version of councilmanic prerogative, which they call aldermanic prerogative. She’s stood up to some of her closest allies to try and strengthen Chicago’s planning and zoning departments to mitigate against dictatorial aldermanic powers.

The fact is, in addition to separating Philadelphia into a city with two distinct sets of rules—one for the insiders, one for the rest of us—councilmanic prerogative and other forms of Philly’s corruption hit the average taxpayer right in the pocketbook.

But while aldermen in Chicago get carted away to prison about as often as happens here in Philly, Lightfoot argues she’s not fighting prerogative just to clean up her city’s sordid politics. She also sees it as a matter of economic equity. Aldermanic prerogative has been “a tool that for generations had been used by the powerful to build a system that excludes, disinvests and isolates working people,” Lightfoot said recently.

Don’t trust me or Lightfoot when it comes to the corrosive nature of councilmanic prerogative? How about hearing from someone who not only practiced it, but went to prison for it?

“Hell, yes, it’s a big problem,” says former councilmember Rick Mariano, a Johnny Doc apparatchik who was convicted on bribery charges and went to prison for four years in 2005. Back then, he made news when the feds were closing in on him and he climbed up to City Hall’s observation deck, ostensibly to end it all. Bob Brady, despite his debilitating fear of heights, rushed to the rescue.

Unbeknownst to Mariano, the deck was encased in plexiglass; there was no way out even if he’d wanted to jump. (At City Hall, some smirked that Mariano’s lack of preparation was an example of “bad staff work”.) Now Mariano is a returning citizen who has the scars to see through all of council’s B.S. “Councilmanic prerogative creates winners and losers, you know? You should just focus on constituent service. It’s easier to help everybody than to worry about all that stuff. One guy on council even said to me, ‘I don’t talk to nobody unless I met them at one of my fundraisers.’ You believe that shit? And I’m the guy who went to prison?”

Mariano’s a colorful guy who takes responsibility for his misdeeds in public office, even though he says he didn’t understand them at the time. (“I ain’t ever heard of ‘theft of services.’”) But he makes an important point: Councilmanic prerogative works against the ability of government to be equally responsive to all its citizens.

Councilmember Gauthier flexing her prerogative muscles

That was the point of a recent lawsuit filed by a local developer against Councilmember Jamie Gauthier for using councilmanic prerogative to rob them of their constitutional property rights. Now, I want to be clear: Unlike Johnson, Gauthier’s motives are not in question. She has used her power to fight gentrification and protect Section 8 renters from losing their apartments.

Here’s a very brief background. Last year, IBID Associates declined to renew its affordable housing contract with the U.S. Department of Housing and Urban Development, as was their right, and sought to sell their University City Townhomes at 39th and Market, a valuable 70-unit site. Gauthier, saying that it was an “injustice to simply stand by and watch while low-income people, working-class people, and people of color… are pushed out,” engaged in negotiations with the developer to try and preserve affordable housing on the site. So far, so good.

But Gauthier seems to have gone further than trying to enlist the developer to help the city set up the tenants with suitable housing after the property’s sale. She then flexed her councilmanic prerogative muscles by passing a spot zoning law, effectively barring the developers from destroying the townhomes. That prompted the lawsuit claiming the developer’s constitutional rights have been violated.

It will be a complicated case, with a lot of back and forth. So this is not to take a position on the relative merits. Rather, you might want to read the legal brief submitted by IBID Associates; it’s actually the best description I’ve seen of just how councilmanic prerogative makes a mockery of representative government. Here’s an excerpt:

What makes councilmanic prerogative so effective in the passage of a district councilmember’s bill is its malignant reciprocity. Any councilmember opposing or voting against the bill runs the manifest risk of having his or her bill voted down. No one councilmember will oppose or vote against a bill knowing his or her bill will never be enacted…Nowhere in the Philadelphia Home Rule Charter is there any authority for the exercise of councilmanic prerogative.

On the contrary, the Home Rule Charter spells out the procedure for the consideration and enactment of legislation. That procedure entails and requires an unbiased and impartial consideration of any and all proposed bills at the Committee and Council public hearings, meetings and votes. The councilmanic prerogative is the very antithesis of the process envisioned and required by the Home Rule Charter because deference to the wishes and will of an individual councilmember inescapably precludes and corrupts the requisite unbiased and impartial consideration of a bill…

Here, Councilmember Gauthier, abetted by the councilmanic prerogative, used the power of her office to force IBID to accept conditions repugnant to IBID’s undisputed real property and contractual rights which would have prevented IBID from selling its Property for its highest and best use…

Yesterday, Councilmember Gauthier’s response raised a lot of compelling arguments having to do with our affordable housing crisis, but it all but ignored the thesis that councilmanic prerogative had already perverted the political process. “Plaintiff portrays itself as a victim of one Councilmember’s actions, but that is not how the legislative process works,” the brief reads. “The legislation Plaintiff challenges has been passed by City Council, and this Court, in reviewing the actions of City Council, has no basis to restrain an individual councilmember.”

Obviously, as with most litigation, the two sides are talking past one another. Even if you agree with Gauthier’s goals—as I do—you’ve got to question her tactics. Anti-democratic maneuvers aren’t okay, even if for a good cause. When she ran for office, then-candidate Gauthier championed transparency and opposed shady backroom politics. Now that she’s been elected, though, one wonders if this unchecked power thing might not feel so bad, after all.

So what can be done about the scourge of councilmanic prerogative? Let’s get the obvious fantasy out of the way first: it would be great to have a mayor, like Lightfoot, who is willing to risk reelection in order to clean up the way we govern. Jim Kenney, you’ll recall, responded to Henon’s conviction not with a good government rallying cry, but by expressing sadness for Henon and his family. So—duh!—he won’t be the guy to lead a new era of political reform.

But there are some green shoots of encouragement. First, a member of Council has—finally—bucked his colleagues and tradition. The vote on Gauthier’s spot zoning bill was 15-1; Allan Domb resisted the peer pressure to blindly support a district colleague’s bill. “That’s simple,” Domb said when I asked why he’d deviated from the longstanding gentleman’s agreement. “I voted against the bill because it’s wrong to restrain private property rights. And I’d do it again.”

Here’s the bad news: By adhering to a shadowy off-the-books agreement, the political class has shrewdly protected itself from legislative reform for decades. But here’s the good news: They didn’t count on political change coming from jury verdicts. In fact, the Gauthier case is worth closely monitoring because there’s already a precedent.

Six years ago, a jury found Johnson guilty of using prerogative to infringe upon the First Amendment rights of his long-time nemesis Ori Feibush. Like the lawyers for IBID, Wally Zimolong argued that prerogative violates constitutional protection. If you agree, as seems plainly obvious, that Council will never reform itself, then what we really need now is a slew of lawyers coming forward with claim after claim of prerogative’s assault on constitutional rights. It’s time to call out the big guns—otherwise known as the Framers.

That, it seems to me, represents our best hope. Because what was true throughout so much of Philadelphia’s history remains so today: If you’re a hard-working, tax-paying, law-abiding constituent, it is essentially a mystery as to how to get your elected official to work as hard for you as they do for private interests and their own political concerns. Surely, that is a state of affairs we should have outgrown by now, no?


The Fix is made possible through a grant from the Thomas Skelton Harrison Foundation. The Harrison Foundation does not exercise editorial control or approval over the content of any material published by The Philadelphia Citizen.

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Header photo of Kenyatta Johnson by Jared Piper / Philadelphia City Council

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