Mr. Shields, Mr. Peduto, Mr. Kraus, Councilwoman Tonya Payne and Councilwoman Darlene Harris voted to bring the invoice back for consideration. Voting no were Dan Deasy, Patrick Dowd and Jim Motznik. (P-G, Rich Lord)
Shields, Kraus, and Peduto (telecommuting apparently from a Turkish opium den) were among the four council members who incurred the debt by hiring attorney Hugh McGough to represent them allegedly "in their official capacities" in a protest of the advertising sign permit issued for the Grant Street Transportation Center.
The three voted to un-table the measure despite the fact that in May, Assistant City Solicitor Kate DeSimone warned against even discussing it.
The response, from Ms. DeSimone, bluntly said: "We caution that a conflict of interest has already occurred in this matter. The course urged here will not eradicate the conflict, but it may lessen the likelihood that someone will file an action seeking to invoke the forfeiture provision."
According to the opinion, conflicts occurred when the members introduced the bill, failed to disclose their conflict of interest, participated in the discussion and participated in the vote.
"The home rule charter spells out a truly draconian penalty for the violation," the opinion stated. " 'Members of council who violate any of the above provisions shall immediately forfeit their office.' Unfortunately, the penalty provision is applicable here." (Link)
The Comet presumes that special elections will be held for the three vacant council seats in November. Jeff Koch is in a strong position to retake the seat he lost to Bruce Kraus; the fate of the other two seats is as yet unclear.
Former Council President Douglas Shields relied upon an opinion solicited from yet another alien source, attorney Marvin Fein of Squirrel Hill.
Mr. Fein of Squirrel Hill argued that legal precedent dictates that only the State Senate would be empowered to remove the offending councilmen after hearings and a 2/3 vote. He further argued that Pittsburgh City Council regularly deliberates upon whether or not to cover invoiced expenses after the fact.
Finally, he argued that the four councilmen are not conflicted on the matter at all.
The reason that the permit issuance became the subject of litigation was because Councilman Patrick Dowd, individually, filed an appeal with the Zoning Board days before the appeal period would have expired. Councilman Dowd does not live downtown nor does he represent that district of the City. He did not have standing to file that appeal individually ... On the last day for filing an appeal with the Zoning Board, Councilmen Douglas Shields, William Peduto, Ricky Burgess and Bruce Kraus all filed an appeal which was consolidated with Councilman Dowd's appeal. Like Councilman Dowd, none of those four councilmen lives in or represents the downtown area of Pittsburgh. The only way that the five councilmen had standing under Council of Pittsburgh ... was if the parties to the litigation before the Zoning Board treated the five councilmen as representing City Council.
The present City Solicitor represented the City of Pittsburgh in the Council of Pittsburgh case before the Commonwealth Court and had to be aware of the standing ruling in that case. Yet he did not characterize the councilmen as acting individually before the Zoning Board nor did he attempt to dismiss any of the members of Council for lack of standing. Further their appeal was treated as an appeal by Council before the Zoning Board.
Thus, the City Solicitor does not have a basis for now saying that the council members hired counsel as individuals or acted before the Zoning Board as individuals when he never raised that issue before the Board and allowed them to participate in the only capacity in which they had standing, as Council. (Busman; emphasis ours)
Nonetheless, the opinion by Mr. Fein, whose offices are in Squirrel Hill, cannot possibly be as thorough, nor carry the same weight, as the official opinion issued by the City's own Law Department -- which enjoys the benefits of a large professional staff, access to specialized city resources, and direct supervision by mayoral chief of staff Yarone Zober.
In recognition of this, not all the conflicted council members threw away their offices so foolishly today:
Mr. Burgess did not vote. Because of the solicitor's opinion, "I cannot and will not put my council seat in jeopardy. I will recuse myself. I will not remain in the chamber today or in the future while this bill is being discussed," he said.