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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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