Tuesday, August 9, 2011
Mayor Luke Ravenstahl may be trying to euthanize a proposed gas-drilling referendum. But city council is looking for a stay of execution.
As originally reported by the Post-Gazette's Tim McNulty, a six-member council majority has signed off on an "interim approval," which it is submitting to the county elections department today. Drafted before the mayor disclosed his intentions to let the bill die, the letter concedes that the mayor has the power to either veto the bill or run out the clock on it. Ravenstahl chose the latter course -- but nevertheless, the document asserts
Council intends to submit this Interim Approval with the Bill to the County Elections Division within the deadline for inclusion on the ballot, such that the ordinance will have been approved by the deadline for submission.
What the hell is an "interim approval"? It's a measure council sometimes uses in emergency situations, or other times when action is required before council's next meeting. From what I've gathered in talking to councilors, such approvals are usually issued for purposes of contracting out necessary work. If a landslide obstructs a vital city street, for example, interim approval allows council to hire some guys with bulldozers in a hurry. The payments receive formal approval later on.
This would be an unsual use of the provision, for a couple reasons. First, the only "emergency" here is that council waited until the last minute to put forward its ballot initiative. "We were juggling too many balls," city councilor Doug Shields candidly admits; the result was the measure ran up against a state-mandated deadline for filing ballot questions. Second, the whole idea of an "interim approval" is that council will take a final action later on. But in this case, there's no final action for council to take.
Here's what the home rule charter says about passing legislation, with the relevant language bolded:
Council shall submit all proposed legislation to the mayor for approval prior to its effective date. The mayor shall sign the legislation within ten days if approved, but if not, shall return it to council stating objections. Council, at its next meeting, shall reconsider any legislation disapproved by the mayor and may pass it in spite of the mayor's disapproval by a two-thirds vote of all the members. If the mayor fails to sign or return legislation to council with reasons for disapproval, it shall become law as of its effective date, ten days after submission to the mayor. The mayor may disapprove any item in the operating budget or capital budget, subject to reconsideration by council in the same manner as other legislation.
Note that Ravenstahl's refusal to act on the bill means that it will, in fact, pass. The problem is, and has always been, that his delay means it will pass too late to meet the state-mandated deadline. (That deadline elapses today.) So while the interim approval has the signature of six councilors -- the same veto-proof majority that supported the original bill -- it is not a veto. Because there actually isn't anything to be vetoed.
What's happening, in other words, is that council is using the interim approval to do an end-run around the city charter.
Which does seem kinda ironic. The spirit behind this effort, after all, is that Pittsburgh's fundamental values deserve to be enshrined in the home-rule charter. But council now seems to be taking liberties with the values already ensconced there.
One might also argue that there are potential sunshine-law violations afoot. The state sunshine law states:
Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public
Shields told me that I was "on the wrong road entirely" by bringing up this concern. He cited the ample precedent of earlier interim approvals -- which by their very nature are not carried out during public meetings.
But again: Interim approvals are made with the understanding that council would follow up with a formal vote later on. And again: If the charter doesn't give council a vote in the first place, how can an "interim" vote suffice? And if the interim vote must stand on its own -- without later ratification -- is it a binding action or not? If it's not, then why should the county pay it any heed? And if it is, hasn't council just violated the state Sunshine Act?
At least someone could argue as much. If they wanted to oppose the referendum.
But there's the rub. Who will challenge it? As noted here previously, some advocates of the bill would love to see a challenge from the gas industry -- because of the poor light that would cast gas-drilling in. Stepping up to challenge this bill makes you look like you want to quash dissent. And it exposes you to an angry core of activists who aren't noted for their shyness.
In the near term, county elections officials can rule on the question; state law requires them to ensure a referendum has followed the appropriate process for getting on the ballot. County executive Dan Onorato has already raised doubts about the substance of the referendum; now there may also be concerns about the process that put it before him.
Shields himself makes few apologies for "pushing the envelope. Why aren't I following the letter of the law? Becuase I'm following the spirit of it -- and the letter of th law is open for interpretation otherwise. There isn't a lot of clarity on either side of the fence."
And as muddled as the process may be, Shields says he's is all about clarity.
"Let's say [county officials] refuse [to accept the referendum]. Maybe we go to court and get a ruling on it. I'm not going to give anybody a free ride on this. I'm going to put people on the record."
In other words, part of the motive behind the ban -- daring gas-drillers and their allies to oppose it and risk public ire -- helps explain Shields' tactics in trying to put it on the ballot. Even if the ballot initiative fails, the broader agenda succeeds. Some may not like the "sausage-making process," Shields admits. "But welcome to the world of hardball politics."
That's why Shields wants to advance the bill now. I suggested yesterday that organizers might be better off waiting until next year, which would give them more time to organize a campaign. But Shields notes that the November ballot includes the county-exec race. Both Democrat Rich Fitzgerald and Republican D. Raja favor drilling, Shields notes: "So where's the voice for voters who oppose it?"
Politicians in both parties want the referendum to die, Shields says, "Because they know that once the public votes, they won't be able to get the genie back in the bottle."
In fact, Shields says that if anyone is abusing the process here, it's Mayor Ravenstahl, who by sitting on the bill is essentially passing it to ensure its failure.
In other cities, Shields says, "You've got mayors that say, 'If you do this, I'm vetoing it.' We didn't know until late last night what he was going to do. Until then, he's not for it, he's not against it. Now he's letting it die."
"These things we're doing -- it's not bank robbery," Shields says. "Is it imaginative? You bet. We're using every possible means to bring this question forward."
ADDED: Shields has sent out a statement saying the following:
"Today, the City Clerk, Linda Johnson-Wasler, delivered to the County’s Division of Elections the Pittsburgh City Council Ordinance that would cause the Home Rule Charter Question to be placed upon the ballot. The Bureau of Elections stated to me that the ballot initiative would be accepted conditionally, pending review of the County Law Department. This is standard practice at the Bureau of Elections.
In Council today, six members signed an interim approval indicating their commitment to override the expected mayor’s veto. This was done in the event there was a veto. We also sent those letters along with the ordinance to illustrate Council’s resolve on the matter.
It is disappointing that the Mayor has chosen to deny the people of Pittsburgh the opportunity to speak to the issue. It is also disappointing that he, as always, seems to avoid any comments on such controversial issues. That is a clear display of his lack of leadership. I read his letter. He claims to have been rushed. I reject that excuse out of hand. It was clear from the beginning that he intended to thwart any attempt to have a popular vote on the matter. He’s had plenty of notice. He also refused to sign the Ordinance banning Shale Gas extraction in the city.
Last year, the Council spent 3 months on the matter with plenty of information on the potential problems associated with this industry. The facts continue to pile up as to the adverse impacts of fracking and the lack of credibility of this industry. To claim to be rushed or not sure of the matter is being less than candid.
I will wait for the County to act before deciding on what would be the best course of action. I am very proud of the Council in that they made it clear that this matter is of significant importance to the people of Pittsburgh and they should be allowed to speak instead of suppressing their voices."
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