Wednesday, June 30, 2010

ACLU explains its review board letter

Posted By on Wed, Jun 30, 2010 at 10:15 AM

As the Pittsburgh Comet and other media outlets have noted, the ACLU has warned city officials that the current effort to replace members of the Citizens Police Review Board has been ... well, problematic.

For the most part, the ACLU's letter covers territory already discussed here. It argues that the appointment process has been undermined by unclear language, and that the city has failed to follow even requirements that are clearly spelled out. It proposes that the current board members be allowed to continue to serve as if they had been appointed to full four-year terms, and replaced as those terms expire. (Which dovetails with a previous suggestion I've made, but that no one seemed to like.) 

The city solicitor -- surprise, surprise -- has argued that the nomination process is consonant with city law. But I spoke to ACLU attorney Sara Rose about her organization's letter, and about the ACLU's concerns about the city's handling of G-20 issues generally. A partial transcript of that discussion follows.

Full disclosure: Rose and the ACLU represented City Paper in a suit to open up courtroom proceedings in the divorce case of Richard Mellon Scaife last year. 

What motivated the ACLU to send this letter? 

We've been contacted by various community members -- notably B-PEP and the Thomas Merton Center -- who are upset about everything that has been going on. But in particular they're upset about the way that these nominees were being put forth.

Have you heard a response from anyone at the city?

I have not heard anything. It's my understanding that the council still has to confirm the nominees. We're going to see whether that happens. If they do, we'll have to consider what actions can be taken.

I think those would be invalid appointments, and [if council approves them under the current circumstances] we could go to the court of common pleas. I'm hoping it doesn’t come to that. The reason this is so important is that the review board is supposed to be an independent agency. This process compromises the board.

But aren't you worried about opening a can of worms here? Your letter contends that several of these appointees -- the ones controlled by council -- should have been submitted to the mayor by a formal council resolution. But that doesn't seem to have happened when it comes to selecting the current board members. So if the new board members don't pass muster, does that invalidate actions taken by the old members? I mean, could a police officer challenge a ruling against him by the old board, saying the board wasn't duly constituted? 

Well, the review board doesn't have any disciplinary power, so --

OK, bad example. But could the city say, "The review board initiated this G-20 investigation, but its members were not duly appointed, so this whole investigation is problematic"? 

I don't think that could actually happen. I don't see how they could say, "You weren’t appointed in the right way, so this board has no authority." A statute of limitations might apply [since the current board members were all appointed at least four years ago]. And they've already been before Judge [Stanton] Wettick, who is going to make them follow the law. [Wettick has, in fact, previously ruled in the review board's favor on requests for G-20 documents.]

Your letter contends that the city code required council to submit its nominees to mayor by resolution. But that's not actually what the city code says. The code did require a resolution back when it was time to propose the original board members, but the part of the code that speaks to filling vacancies doesn't mention a resolution at all. Doesn't that strengthen the argument that the process used here was acceptable?

The way courts read things, you have to read this altogether. The fact that it requires the resolution [originally] would suggest that's how it's supposed to be done [subsequently]. And even if it isn't done by resolution, the code says there has to be three people submitted for each seat. So the question becomes how do you do that? I think in this case, it was council members acting on their own, rather than a joint effort. But there's got to be some formal process for council to choose which nominees it is going to pick, and submitting those picks to the mayor.

There are some concerns that the ACLU may have a vested interest in trying to protect the current board. The fear all along here has been that the review board's G-20 inquiry may turn up material that could make it easier to sue the city. The ACLU is already suing the city on behalf of groups who claim they were harassed during G-20. So can't this be construed as an effort to get your hands on additional material for your case? 

We've already served discovery requests in the Seeds of Peace case [although the city is trying to delay the request]. We have had absolutely no discussion with the review board -- no input at all -- about their requests. I don't even know what they’ve asked for. It has nothing to do with why we sent this letter.

Some city councilors have said they are afraid that a G-20 related lawsuit might name them individually. And that they could lose their homes as a result. As the organization representing plaintiffs in current litigation, does that seem plausible to you?

Council members thought they would be sued? It would be incredibly difficult to link individual council members to any arrests of people during G-20.

In fact, [in the current G-20 litigation] Judge Gary Lancaster removed Mayor Ravenstahl, [police chief] Nate Harper and [public safety director] Mike Huss from our lawsuit. [Rose notes that if something turns up in discovery tying those officials directly to unconstitutional actions taken by police, they may be reinstated, but] the Supreme Court has heightened pleading requirements when you file a lawsuit. The evidence you have when you file a lawsuit must be higher [to name a given official].

But I can't think of a single case in which we've ever sued any kind of legislator for damanges. We've sued for injunctive relief -- to overturn actions they've taken as a legislative body. Maybe something will turn up in discovery, but I don't see how council members are going to be individually liable. They have legislative immunity. What did council do? It's kind of intriguing that they're so worried.

Friday, June 25, 2010

New sheriff in town in stolen-gun legal battle

Posted By on Fri, Jun 25, 2010 at 10:24 PM

At first blush, there wouldn't seem like much new in a Commonwealth Court ruling on Pittsburgh's stolen gun ordinance. In a decision echoing a ruling upheld by the state Supreme Court weeks ago, a three-judge panel tossed out a challenge of the law for a lack of standing.

But this decision, unlike some previous cases, suggests the NRA may have a new gunslinger on its side.

Gun owners detest the city's ordinance, which requires them to report a lost or stolen firearm within 24 hours of discovering its absence. (The legislation is intended to curtail "straw purchases" of guns bought by third parties, who pass the firemarms along to someone barred from owning a gun themselves.) But generally, before you challenge a law, you have to show that you actually stand to be harmed by it. And so far, no one has been charged under the Pittsburgh ordinance, or the Philly law upheld previously. As a result, judges have found that none of the plaintiffs -- who include the NRA and several gun-owners -- have been in a position to complain about it.

The Commonwealth Court's opinion followed that earlier reasoning -- which is no surprise since it issued a very similar ruling on the Philly matter almost exactly a year ago. So once again, we seem to have a weird sort of Mexican standoff -- all the parties are itching to fire, but everybody's gun is loaded with blanks. 

But this ruling is notable for a dissenting opinion by Judge P. Kevin Brobson. 

Formerly a Pittsburgh-based attorney with Buchanan Ingersoll & Rooney, Brobson was elected to the court last year. So he didn't take part in the earlier deliberations over the Philly bill. And his dissent makes clear that he didn't share the court's logic, either. 

Brobson points out that by the standards set out by the court, "the only person who may lodge a pre-enforcement challenge to a criminal ordinance is a person who ... either (a) admits that he or she has already violated the ordinance ... or (b) commits to violating the law.

That leaves gun owners with a "Hobson's choice," he says: "either comply with a law you believe is unlawful or subject yourself to possible criminal prosecution." 

I'm no lawyer, but Brobson seems like a deft writer and thinker. For one thing, there's this little zinger:

We must not presume that the citizens of the Commonwealth will blithely choose to violate a law and risk criminal sanctions for the sole purpose of proving the law’s invalidity any more than we should presume that a local government would enact a law, regulation, or ordinance that it has no intent to enforce.

The emphasis there is mine. On the one hand, Brobson is saying that there's no excuse for leaving a bad law on the books -- even if we don't think it will ever be used. But to me, it also sounds like Brobson is slyly suggesting that this particular law may never actually be enforced. Certainly, as we've reported before, Pittsburgh police are taking their sweet time about charging anyone with it. (It may be worth noting that the ordinance became law without Mayor Luke Ravenstahl's signature, which suggests a lack of enthusiasm on the administration's part.)

In any case, Brobson concludes, gun owners "have a direct and immediate interest sufficient to bring this pre-enforcement challenge." And thus the challenge should go forward.

The NRA has endorsed that logic. Which is hardly surprising, since the NRA endorsed Kevin Brobson himself in 2009. The group plans to appeal the three-judge panels' decision to the full Commonwealth Court. The sniping will no doubt continue there. But it seems like this time, the NRA will have some help from a savvy legal sharpshooter.

Mayor finally keeps an appointment

Posted By on Fri, Jun 25, 2010 at 4:53 PM

I've received confirmation that today, Mayor Luke Ravenstahl submitted to council the names of nearly two dozen people he is nominating to various boards and commissions.  So now we all have something to look forward to next week. 

The city clerk's office is not yet releasing the names of the appointees, or the positions they have been selected for. That information, I'm told, is not public record until formally presented at council's regular session next Tuesday. But the office did confirm that 23 nominations have been sent over for council approval, and you can find plenty of likely posts by clicking around the list of boards and commissions, looking for expired terms. (Note: Some of the online information about these appointments may be more outdated than the appointments themselves.) Can it be, for example,  that it is finally time to replace Sergei Matveiev -- who left his city post last year -- on the Historic Review Commission? (Answer: No, it can't. But it's too boring to explain why. Let's just move along.)

It's been common practice to leave some seats vacant -- or filled by members on expired terms -- for years. So why the rush now? Well, the move comes as the city's slip-shod appointment process has become a flashpoint of controversy. In addition to City Paper's constant whining about it, the Pittsburgh Post-Gazette issued an editorial today faulting the process used to name new members of the city's police review board. 

What's more, on Tuesday city councilor Bill Peduto fired off a letter to city solicitor Dan Regan regarding the review-board appointment controversy. The letter raises some arguments I noted last week -- namely that replacing a board member with an expired term is not the same as filling a vacancy.

Writes Peduto, "[T]his Administration has repeatedly stated that appointees may continue to serve after a term expires and the seat should not be considered vacant. Why in this case is the Administration following the Code for filling a vacancy?"

With luck, today's events mean the mayor is trying to get out ahead of these problems in the future. I mean, there actually are things I'd rather write about ... though at this point, I wouldn't blame you if you find that hard to believe. 

Thursday, June 24, 2010

City Council: the fear of fear itself

Posted By on Thu, Jun 24, 2010 at 7:34 PM

Yesterday's Tribune-Review had a story illuminating city council's recent hostility toward the Citizens Police Review Board. And by a strange coincidence, I had a column out the same day covering some of the same ground. Once again, in other words, I march in lockstep with the minions of Richard Mellon Scaife.

There's a reason city council has pushed the review board to ease up on looking into last year's G-20 summit. Both stories report that councilors were given a warning by the city law department. If the review board turns up material that could weaken the city's defense, councilors were told, the city could lose a multi-million-dollar insurance policy covering police actions during the event. 

The Trib story, however, adds a note that I didn't have space to get into. Councilors aren't just worried about the city's bottom line. They are afraid for their personal bank accounts too. Some councilors, it seems, are fretting that they may be held personally liable for any civil-rights judgments. 

As the Trib quotes Theresa Kail-Smith saying, "We could lose our homes over this. If we don't have insurance, then [the liability] falls to us."

I have heard this misgiving expressed by other city officials as well. And on paper, at least, there's something to it. 

An action against the city will likely allege a civil-rights violation under section 1983 of the federal civil-rights law. That section asserts

Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

Put simply, if you use government authority to violate someone's civil rights, you can be held personally liable.  Which is what Kail-Smith and others seem to be afraid of.

But things are not that simple. Or that scary. 

As a whole slew of court cases has established, it's hard to sue government officials in their personal capacity -- especially when they are legislators whose actions are limited to casting votes and other official business. Among the precedents, for example, is Tenney v. Brandhove, a 1951 U.S. Supreme Court decison. (This case involved a state legislature rather than a local government, but the principle is similar. And anyway, the ruling includes the priceless observation "One must not expect uncommon courage even in legislators.")

The court held that legislators should be "immune from deterrents to [carrying out] their legislative duty" -- not for their own sake, but for the sake of the people they represent. What if an official was looking over his or her shoulder every time a vote came up, worried that an aggrieved citizen could take away the councilor's home? That would deny the rest of us adequate representation by our officials. It would result in legislative paralysis, or even silly non-binding resolutions urging paralysis on others. 

That's not to say a city councilor could never be held personally liable. Truly flagrant abuses could result in personal liability. 

But in this case, "[I]t is extraordinarily unlikely -- extraordinarily far-fetched -- that council members will be held liable," says Joseph Mistick.

Mistick ought to know: He's a Duquesne University law professor, and a former city of Pittsburgh official during the administration of Sophie Masloff. And though he's been around for decades, "I can't remember any case like this in which it went to personal assets.

"We've seen a series of police-brutality cases" over the years, Mistick points out. "But I don't see how they've affected members of council personally." Hell, council just voted to settle two police-misconduct cases earlier this month. And while the ACLU has already filed suit against the city on behalf of two plaintiffs, no members of city council are included as defendants.

So what's going on here? It's simple, Mistick surmises. 

"Someone is trying to scare the hell out of council members. And obviously, they have." 

 

 

 

John Fetterman and Braddock: living by the seat of their pants (UPDATED)

Posted By on Thu, Jun 24, 2010 at 1:57 PM

According to the New York Times, Levi Strauss is set to launch a new marketing campaign -- one that uses the long-struggling Mon Valley town of Braddock as a backrop. Residents of the town will be used as models. 
levi.jpg

Warning: The Times article contains the word "gritty," in accordance with journalism rules governing the coverage of Mon Valley towns. (Though the word "hardscrabble" is absent. Must be an oversight by the copy desk.) Also per media guidelines, the story notes that Mayor John Fetterman has a tattoo of Braddock's zip code on his arm.

Says the paper of record:

Levi Strauss executives plan to put their money where their pants are, donating more than a million dollars over a two-year period to assist Braddock in renovating a community center and further developing an urban farming program.

And the company will forgo using models for the campaign, instead casting residents of the Braddock area and paying them to appear in the ads. Some ads will include the words "Braddock, Pa." in a corner.

Braddock will also have a star turn on an hourlong show "sponsored by Levi's, to appear online and on the IFC and Sundance cable channels."

Now I know what you're thinking, and so does John Fetterman.

"Across the board, it is an authentic, organic partnership," Mr. Fetterman said. "At no point did it ever feel it was a marketing campaign."

"They didn’t show up with magic beans and a couple pairs of free jeans and say, 'Come be in our ads,' ” said Mr. Fetterman ...

For instance, a young single mother who recently lost her job will appear in print ads and billboards, Mr. Fetterman said, and "the money she received helped out a lot."

Fetterman seems to have some weird gift for attracting publicity to his neck of the woods. Media types can hardly help fixating on his size and skin art. (And no, City Paper is not immune.) Nor is Levi's the first bunch of folks to see Braddock as an emblem of America's efforts to pick itself up off the mat. Earlier media coverage has made Braddock a veritable metaphor for the nation's post-post-industrial malaise.

Hell, this isn't even Fetterman's first experience with ad campaigns: The subject of a full-blown Rolling Stone profile, he was also a pitchman for a green technology campaign. Now apaprently it's his constituents' turn to be featured. 

Fetterman's an utterly sincere guy; besides, he can crush me like the tiny insect I am. Braddock deserves every break it can get, and Levi's deserves credit for making a meaningful investment. Still ... am I the only one who feels like there's something unappetizing at how modish the town's hardship has become?  I mean, at this point, you've gotta feel for the places like McKeesport, Duquesne, and Rankin -- places struggling just as much, but without even the consolation of a single Geico ad.

That isn't Fetterman's fault of course; his job is to worry about Braddock, and that's enough for any man. But if I were a Mon Valley official, I'd be shopping around for tattoos and waiting for my close-up.

UPDATE: Fetterman called me up a little bit ago, and wanted to stress that he himself will not be making any additional cash from the Levis campaign: It's all going to community projects, or individual members of the community. 

Echoing remarks I quoted above, Fetterman said that "this wasn't a typical 'pose here, pose there, let's be a bunch of circus poodles'" type promotion. "It was a completely dignified process" he says -- and you aren't going to start seeing Levi's logos appearing on street signs, either. 

Fetterman seemed sensitive to the idea that anyone would see any sign of self-promotion in this. "Everything I'm trying to accomplish here is to improve the quality of life in this community," he says, noting that he has turned down other offers that didn't further that goal: "I've had two dozen reality-show offers, but I don't take any of that stuff seriously."

Fetterman, of course, agrees that other Mon Valley towns deserve attention and help too, and what to do for them "really is a serious question."

After all, he says, "The Mon Valley can't count on the creative class" -- a reference to Richard Florida, the former CMU professor whose ideas on talent attraction have long been a punching bag for Fetterman. And even charities and other social service providers have let the area down. Braddock, after all, lost a hospital operated by UPMC last year.

"The state's biggest charity bailed on our town," says Fetterman. "And then Levis came in -- and was totally genuine."

Wednesday, June 23, 2010

Pittsburgh blow-up masks real challenge in regulating gas industry

Posted By on Wed, Jun 23, 2010 at 1:11 PM

At city council yesterday, an argument broke out -- surprise! -- over efforts to regulate drilling of the Marcellus Shale within city limits. 

City councilor Patrick Dowd, whose district is rife with talk about future drilling, has proposed an early draft of a bill to try and regulate such operations within city limits. The measure envisions such modest demands as requiring a minimum lot size of 15 acres for any drilling operation, and a 1,000-foot buffer separating such operations from any public building. 

Dowd's measure was not embraced by the gas industry, nor by more strident councilors Bill Peduto and Doug Shields, who want an outright ban. 

But unfortunately. both sides have something in common. The worrisome truth is that whether you want an outright ban or something less ambitious, the law isn't on Pittsburgh's side. In fact, due to a legal loophole I'll explain toward the end of this post, even a miniscule community like, say, Lower Burrell may have more control of its destiny than we do. 

Gas drilling is regulated by the state's Oil and Gas Act. And  Section 602 of the act makes clear that "No [local] ordinances or enactments ... shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by this act."

This is what the lawyers call pre-emption: When the state passes a law govering some activity, those regulations trump any local ordinances that might try to regulate the same activity. 

Section 602 does make one notable exception to the preemption: zoning. By law, municipal zoning rules can apply to gas drilling. So a city could, for example, preclude a gas driller from putting a well in a residential community. (Unless, again, that city is Pittsburgh. Like I say -- more on that in a bit.) But there are some real limits to that power.

Generally speaking, zoning focuses on what the courts have called "how-versus-where" matters. Local officials can use zoning law to determine where a gas well can be installed ... but once a valid site is chosen, local officials have only limited say in how it does business. 

In fact, the state Supreme Court has already rejected one community's efforts to limit the growth of the gas industry. In a 2009 ruling, the court held that Salem Township had overstepped its authority in trying to set rules for gas drillers. The Westmoreland County community required, for example, that gas drillers seek permits from the township itself before drilling began. It set requirements for restoring drilling sites once the job was over. And it established rules for building gas lines and water-treament facilities while the drilling was going on.

The Supreme Court tossed out all those rules -- largely because they were pre-empted by the state law. "[T]he Ordinance reflects an attempt by the Township to enact a comprehensive regulatory scheme relative to oil and gas development," the ruling held. And that, see, is a bad thing. 

Dowd's legislation is still in its very early stages, of course, and seems less stringent than the Salem ordinance. Some of its rules would almost certainly pass muster -- like its ban on lighting that shines into residential homes. But I can already imagine a lawyer making a stink about other provisions.

For example, Dowd's bill calls on a gas-driller to do soil testing before drilling begins and after it ends -- and mandates environmental remediation to repair any damage. That's a great idea, but it also seems duplicative of the Oil and Gas Act's provisions on well-site restoration.

So if even Dowd's fairly tepid bill might run into trouble, you can probably imagine how an outright ban -- a la Shields and Peduto -- would fare. Using zoning for such purposes, anyway, is always problematic. A 1967 state Supreme Court rulng, for example, held  that "[a] zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area."

Of course, drilling critics argue, that's just the point: There really IS a "substantial relationship" at stake here. And drilling is arguably so dangerous that in a densely populated city, only an outright ban makes sense.

As a matter of fact, some of those critics are probably wondering where I'm getting my legal knowledge from. Some industry front-group? The city solicitor?

God forbid. The analysis above is largely informed by a conversation with John Bailllie, the senior attorney for the environmental group PennFuture. Baillie and I didn't discuss the merits of Dowd's bill, and he's not an expert in zoning per se. But he says that in general, "Municipalities have very little control over gas-drilling." 

In fact, Baillie says, Pittsburgh may have less control than almost anyone else. Remember up above, when I said state law makes an exception for zoning ordinances? That was only partly true. It makes exceptions for ordinances "adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code." That law established zoning rules for every municipality -- every township and borough in the state -- except for two. One was Philadelphia. Can you guess which the other is? 

That's right: Pittsburgh's zoning law was created by a separate state law, in 1927. And that law is not mentioned in the Oil and Gas Act. Which Baillie says could be construed to mean that "Pittsburgh has less protection than almost anywhere else." (As for Philly, no one's really talking about drilling for gas there anyway.) 

Baillie says that the omission was "probably just an oversight." But it's one that needs to be fixed. And in fact, House Bill 2213 -- a key reform measure currently idling in committee -- closes that loophole. 

Even so, Baillie says that for environmentalists, "Increasing local control can be a double-edged sword." Sure, "some muncipalities would use it to go in the right direction," he says. "But for others, it could be a race to the bottom" -- with local politicos whoring out their communities to gas companies. 

Which is something to think about. I'm not counselling resigned despair by Pittsburgh's city council. (Like I said, I didn't get my legal advice from the city solicitor.) Local zoning controls are clearly important. But let's say Pittsburgh does manage to keep its own water pristine, its land unsullied by drilling. What happens if Rankin, say, or Fox Chapel, or some other desperate place rolls over for a gas-driller ... and that driller then pollutes the Mon or the Allegheny? Sadly, zoning regulations don't apply to pollution.

HB2213 does a lot more than fix a quirky loophole for Pittsburgh's benefit. It would implement far stricter environmental protections throughout the state. I'm all for city officials focusing on city stuff. That's what we pay these guys for, and as I wrote recently, cities have special concerns when it comes to gas drilling. But for good or evil, the real action here is to be found in Harrisburg. 

Tuesday, June 22, 2010

A quick thought before today's council meeting (UPDATED)

Posted By on Tue, Jun 22, 2010 at 11:49 AM

As I type this, council is set to meet in just a few minutes. Among the items slated to come before it are Mayor Luke Ravenstahl's proposed new board members for the Citizens Police Review Board. Today's Post-Gazette, meanwhile, features city council president Darlene Harris expressing bafflement at claims by Bill Peduto and others on council, who say they didn't have a chance to weigh in on a list of council nominees before they were sent to the mayor:

Mrs. Harris and Councilwoman Theresa Kail-Smith, chairwoman of council's public safety committee, reiterated Monday that all council members had the chance to put in names.

Mrs. Harris said council members received at least four e-mails on the issue from her, Ms. Kail-Smith and the city clerk's office. Ms. Kail-Smith said she stopped in her colleagues' offices to remind staff members of the need to fill board seats.

I'm willing to bet that's true, whatever protests Peduto voiced to me late last week. I've since seen a purported copy of one of those e-mails myself. If that all pans out, Peduto and Co. deserve even more blame than I doled out last week. Not only should they have recognized the abstract threat reprseented by having current members serving expired terms, but they obviously should have responded to the immediate request for input. 

That said, I'm not sure how much of a difference it makes from a legal perspective. As I pointed out last week, the city code's language on reappointing board members is vague where the review board is concerned. But about the only clear provision is this one:

[T]he Mayor shall fill [each] vacancy by appointing the Board member from a new list of three (3) nominations submitted by Council

Council only submitted seven names for four seats under its jurisdiction. That's five short of what it is obliged to do. Blame Peduto for that if you wish, but council as a body didn't live up to the requirements under the code. To me, that makes the nominations it sent over flawed. And while Peduto has only himself to blame for the part he played in this, he raised a good point with me: Issuing a list of nominees by formal resolution -- rather than by informal chain e-mail -- is a much saner way to go about this. 

I mean, what the hell. In other news yesterday, the city's financial overseers demanded that council jump through some extra budgetary hoops before hiring a consultant to review plans to lease the city's parking garages. I don't see anything wrong with that request on the face of it. But if council has to follow the rules for choosing who reviews the future of city parking garages, it ought to follow the rules when it comes to choosing who review the police. 

But we'll see whether anyone else agrees.

UPDATE: Well, that was ugly. There was Theresa Kail-Smith, saying she was "disgusted" by councilors who raised a stink about the process while not doing their "damn jobs." And then things REALLY got frosty.

Here's what I think: Everyone is right.

Theresa Kail-Smith and Darlene Harris were right to fault critics of the nomination process for not taking part in it by submitting their own nominees. Kail-Smith and Harris argued passionately that they had sought feedback through a handful of e-mails and a drop-by-office visits. And I sure didn't hear much that sounded like a denial from anyone on the other side of the table.  Which struck me as a pretty damning silence. 

Harris and Kail-Smith also argued, as I pointed out last week, that such a process was similar to the one used to appoint council nominees for the Ethics Hearing Board, and some other appointments as well.

On the other hand, I think Bruce Kraus and Bill Peduto et al. were right about the larger picture here. Just because there's a precedent for this sort of thing doesn't make it right. For starters, the ethics board is a godawful model for appointments. Created 20 years ago, it has been moribund for much of its two-decade history. During the fleeting administration of Bob O'Connor, ethics board members were appointed, but didn't have their first meeting until a year later.

You could probably get council to agree on changing the rules going forward, such that this sort of thing won't happen again. I think it's pretty apparent to all concerned that the existing rules don't make much sense. The problem is that there is so much controversy about what is happening now, with the board members currently on the table. As Kail-Smith acknowledged, Ravenstahl's timing here has upped the ante considerably. And I don't see either side backing down. 

So what happens if a majority of council passes these nominations, but critics insist that the underlying nomination was improper? Will there be a court case about whether the review board can continue with its court case? Will we have a review-board-in-exile? All I know for sure is this. By summer's end, a majority of Ethics Hearing Board members will be serving on expired terms too. If council doesn't act more proactively in that case, it's time to give up hope entirely. 

On natural gas special, WPXI gives us plenty of gasbags

Posted By on Tue, Jun 22, 2010 at 8:35 AM

Those of us who don't have cable, and couldn't see Gasland on HBO last night, had to make do with "Fueling Pittsburgh," WPXI's special on the region's burgeoning energy industry. I mean, I suppose we could have just read a book instead, but come on.

I expressed some misgivings about the program in a blog post yesterday, noting that its sponsors were big players in the gas-drilling business. And truth to tell, it was sometimes hard to tell where the ads stopped and the show itself began. (The program also was sponsored by Westinghouse and -- surprise, surprise -- safe, clean nuclear energy was featured prominently.)

But, like the blowout of that well in Clearfield County, it wasn't as bad as it could have been. You can't say WPXI ignored environmental issues, exactly. But it never really confronted anybody with them either.

The first thing you noticed was how breathless the hour-long special was. Things moved fast. There was almost no explanation of how horizontal drilling worked, or what exactly "fracking liquid" was -- even though it was repeatedly cited as a source of environmental concern. And WPXI's on-air talent are clearly dazzled by the economic possibilities of fuel sources like the Marcellus Shale (which as Danielle Nottingham told us, provides "clean-burning, job-producing natural gas").

"By some accounts, energy exploration in western Pennsylvania is the new gold rush," co-host Peggy Finnigan enthused as the broadcast wrapped up. By that point, in fact, a spokesman for gas-driller Range Resources had assured us that while "In many ways, the technology we use is second only to NASA." (Even so, he added, there's a place for you even if you don't have a high-school diploma:"[A]s long as you're a hard worker ... there's tons of career opportunities for those folks.") 

Much of the program was taken up by corporate profiles of energy leaders ... several of whom were also, by an amazing coincidence, sponsors of the show. We were told about how Westinghouse -- which by the way was founded right here in Pittsburgh, in case you didn't know -- is kicking ass in the nuclear biz. We learned how Bayer, which used to just make aspirin, is on the cutting edge of manufacturing energy-efficient materials. And while the program nods to the danger of coal mining, we were assured that our very own Consol is one of the safest mine operators around. Oh, and although Range Resources is based in Texas, it has roots just next door in Ohio. Yes! I am telling you!

There was also a segment on solar power, represented here by a small businessman, and one on wind. But it's clearly the energy giants that excited WPXI. The program was bookended by interviews with Dennis Yablonsky, who heads the Allegheny Conference on Community Development. "This Marcellus Shale represents a game-changer," he assured us -- citing an oft-quoted assertion that there may be more energy beneath our feet than you can find in all of Saudi Arabia

Yablonsky did acknowledge that, yes, there are some risks to all this potential. Any time a worker is injured or killed in an industrial accident, he allowed, it is "not good." 

And it's not that WPXI ignored things like environmental concerns. Dan Volz, a public-safety expert who has had harsh words for the business, appeared in the show's second half-hour. So did Bob Donnan, a blogger who has waged his own online campaign against the industry. And in an early segment about community response to shale development in Upper Burrell, WPXI did the classic one-the-one-hand-this/on-the-other-hand that approach, quoting a neighbor on each side of the issue. 

So can you say the WPXI program was a whitewash? Not really. It acknowledged environmental concerns -- early on and more than once. And if it barely scratched the surface, well, that was how "Fueling Pittsburgh" handled a lot of its material. 

What you ended up with, though, was two starkly different views of the industry, and no attempt to mediate between them.

When Upper Burrell's township manager frets that shale drilling is "contaminating water tables," for example, WPXI makes little effort to verify the concern. (As a Scranton Times-Tribune report did yesterday, finding hundreds of "violations for spills that reached waterways, leaking pits that harmed drinking water, or failed pipes that drained into farmers' fields, killing shrubs and trees.")

Similarly, there is no attempt to question all those amazing-slash-dubious job estimates that seem to transfix WPXI's on-air personalities. And when the industry asserts that its procedures are safe, there's no response from its critics, who are confined to their own segments elsewhere in the broadcast. and on the other side of the scale, there's no industry response to, say, Volz's calls for a moratorium on drilling either.

"Fueling Pittsburgh" walls the two sides off from each other in separate segments, so they just end up talking past each other's concerns. If the fossil-fuels business were as good at sequestering pollutants as "Fueling" was at sequestering criticism, all our energy problems would be solved.

In fact, when it came time to mention environmental and worker-safety mishaps -- or any sort of controversy -- WPXI never mentioned the company involved by name. Mines just collapse, gas wells just explode. In the upbeat stories, by contrast, the corporate brand is always front and center. The criticisms of Volz and others are never really attached to anyone -- it's a vague, if persistent, alarm directed everywhere and nowhere at once. Which means that by quoting such concerns, WPXI gets to protect its reputation for balance, without raising doubts about the reputation of any particular industry player -- its sponsors least of all. 

About those advertisements. I counted them.  Range Resources had seven commercials during the hour-long broadcast. Westinghouse and Bayer had four apiece. One-third of the 44 ads I counted during this broadcast, in other words, were sponsored by companies profiled in the special. (And I'm including PSAs and station promos in that total count.)

At the end of the show, David Johnson asserted, "We want to thank all our sponsors." Pretty sure they'd already taken care of that, actually.

In any case, if you missed the show -- and you have cable -- you can catch it on PCNC on June 26th at 10 p.m., or 4:30 p.m. the next day.

Monday, June 21, 2010

Revisiting Pintek, natural-gas drilling and (sorry!) a 19th Ward item

Posted By on Mon, Jun 21, 2010 at 7:34 PM

A few quick items including -- for those who still care -- a brief update on the Kimberly Cagni dispute. 

First, a follow-up to my post last week about KDKA Radio host Mike Pintek's puzzling take on local cyclists. Pintek revisited the subject today, and had me on as one of his guests. (I was a last-minute substitute -- Pintek had originally tried to schedule something with the head of Bike Pittsburgh, but apparently it didn't work out. The group's Scott Bricker is now scheduled to go on KDKA on Friday afternoon at 1:00.)

Pintek acknowledged -- more than once -- that his remarks last week were, well, ill-considered. And I think it's safe to say that he was taken aback by the some of the impassioned online response his remarks provoked. So for those seeking to track the influence of online commentary (Hai Bram!) here's another piece of evidence.

In fact, it's sort of interesting. I think cycling brings up a new Pittsburgh/old Pittsburgh tension in this town, with newer/younger residents brought into a conflict with lifers -- a conflict exacerbated by a constricted street grid and decaying infrastructure. (These may be the symptoms of just about every argument in the city, come to think of it.) And similarly, what we saw with Pintek was a battle between new and old media. Because KDKA originally put Pintek's snippet online -- it has apparently since been removed -- he got a much different audience than I suspect he is used to. 

But in any case, Pintek was open and fair with me and another guest, the wife of an avid local biker who professed fear for her spouse's safety. It was a good, even-handed discussion, and the guy deserves props for that. There are plenty of radio talk-show hosts who don't admit to mistakes, and who wouldn't let a critic get a word in edgewise before hanging up. 


Moving on ... one of the iron truths of Anthony Coghill's life, apparently, is that the guy loses even when he wins. 

Coghill, you may recall, vied with Pete Wagner for control of the city's 19th Ward ... and lost handily. But as part of that effort, a Coghill supporter challenged the residency of Kimberly Cagni, who they claim actually lived in Mt. Lebanon, rather than within the city neighborhood she represents on the Democratic Committee. 

I am told by Jim Burn, the party's county chair, that last week Cagni submitted her resignation from the committee, thereby making the challenge moot. 

But Coghill can't feel too much satisfaction at this turn of events. The party's rules state that vacant committee spots shall be filled by the chairman ... " upon the recommendation of the Ward or Municipal Chairperson on whose committee the vacancy has occurred."

In other words, Kimberly Cagni's replacement will likely be named by ... Pete Wagner, the guy Coghill was hoping to defeat. 


Finally, a quick tip of the hat to Maria at 2 Political Junkies, who reminds us that the documentary Gasland airs on HBO tonight. The special -- which had a sneak-preview airing here in Pittsburgh not long ago -- is an eye-opener. So is the fact that Maria's post results in an amusing visit from a gas-industry spokesperson, who Maria outs in short order. 

Also tonight -- and also demonstrating how the gas industry is looking to shape our environmental debate -- is a WPXI special, "Fueling Pittsburgh." Among the special's featured sponsors? Range Resources, among the largest gas drillers in the country. Also the legal firm of Babst, Callan, Clements and Zomnir, which lists "Marcellus Shale Development" as a special area of expertise on its home page.

"Fueling Pittsburgh" airs at 8 p.m. -- it might be interesting to watch just to see how upfront it is about some of the concerns surrounding Marcellus drilling

Friday, June 18, 2010

UPDATE: Stop the presses! Mayor benefits from murky legal language, council confusion!

Posted By on Fri, Jun 18, 2010 at 9:26 PM

This post is an update to my previous missive on the mayor's effort to replace most of the city's police review board -- even as that review board presses for a full disclosure of city policy during the G-20.

Here's the issue, folks. The mayor is claiming the right to replace five of the board's seven members. In three of those cases, there's little question of his authority to do so. By city law, three of the review board's members are mayoral appointees exclusively: All were serving on expired terms, and two have apparently moved out of the city. So Ravenstahl can do what he wants there.

But the mayor is also trying to replace two of the four board members chosen by council -- Marsha Hinton and Mary Jo Guercio. And that's where things get sticky. Because neither of these seats was vacant: They were merely held by people whose terms had expired.

That may not seem like much of a distinction. But it's critical. As we've reported before, the mayor's office has long maintained that a board or commission member can serve an expired term without the seat being considered "vacant." 

The trouble in this case started in early April. Beth Pittinger, the review board's executive director, notified council that "The four seats designated for City Council selection on the CPRB have expired. Incumbent members have expressed their willingness to continue their service into new terms or through completion of terms associated with the seats they occupy."

Now notice: Pittinger was NOT telling council these positions were vacant. If Hinton or Guercio moved out of town, the way the mayoral appointees did, the city code would give council 30 days to pick three candidates to replace each one of them. Ravenstahl would then have 60 days to pick his favorite of the three as the official nominee. And then that lucky candidate would come to council for approval.

But see, according to the city code, a "vacancy" is what is "created by the departure, for whatever reason," of a board member. And none of the board members on Pittinger's list were departing. To the contrary, they "expressed their willingness" to stay. And while the code has language for how to fill a board seat that is vacant, as far as I can see, there is no language about how to replace board members whose terms are merely expired.

The mayor can replace his own expired-term appointees by fiat -- they're his appointees. But city council is a group of nine elected officials. And from what I can tell, council never took any sort of formal or group action on naming these replacements at all. A search of the city's legislative information page turned up no resolution by which council formally communicated a list of nominees to the mayor.

It seems that in the weeks following the receipt of that letter, some councilors -- including Patrick Dowd and Theresa Smith -- did suggest names of nominees they wanted the mayor to consider. (In fact, Smith recently sponsored a resolution declaring "Debora Whitfield" day in honor of one of Ravenstahl's nomiees. Whitfield is active in a "weed and seed" program in Smith's district.) These names were sent to the mayor. But other councilors, including mayoral nemisis Bill Peduto, said they were unaware that any names had even been submitted. 

Peduto believes that the list of nominees should have been submitted "by resolution, not by e-mail." In other words, it should have been voted on at an open meeting of council. Which makes a lot of sense. Otherwise, how else is a nine-member council going to come up with a list of just three nominees?

But here's the thing. I couldn't find any such resolution for the city's Ethics Board either. On that board, too, council selects three candidates for each seat it controls, with the mayor picking his favorite of the three. But while I found resolutions approving the mayor's ethics-board picks, I have yet to see any legislation submitting council's original list. So apparently, there's a precedent for a less-than-formal process. 

(By the way: A couple of Ethics Board members appear to be serving expired terms themselves. Ahem. Ahem. )

And let's face it. Council set itself up for this. After all, Pittinger did send a letter reminding them that their four picks had expired. Someone like Peduto could have moved to formally renominate them -- and he of all people should have seen this coming. He knows how vulnerable board members serving expired terms are: After running afoul of Ravenstahl, he was bounced from the Stadium Authority under just those circumstances. 

So basically, we've got a murky set of provisions, a mayor willing to take advantage of them, and a city council that let itself get taken advantage of. Is this reminding anyone of a certain mayoral veto?

Here's the simple solution to all this: A majority of council should vote not to accept the mayor's nominees, arguing that they were not properly submitted. They don't have to make it personal or anything -- just recognize that the language is murky, and the process flawed. The current review board members would continue in their expired, capacity -- and council can try again, THIS time using a nice, transparent resolution that everyone can see. 

OK? So let's just do that. 

I will just add, however, that if city council had listened to me a few weeks ago, this shit would not have happened. 

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