06.26.12

Mark Schwartz, Esquire, Again

Tonight’s City Council agenda is a packed one.

City Council is trying to get business done before taking a hiatus from July 10th through August 28th.

There’s a hodgepodge of items to be addressed including development projects, HUD funds, and City staff positions. One agenda item in particular stands out. Resolution 23-2012: “A resolution authorizing the engagement of Mark Schwartz, Esq. to represent City Council in proceedings before the Commonwealth Court of Pennsylvania relating to the enforcement of the Receiver’s Act 47 Recovery Plan.”

That is, someone or someones on City Council are suggesting Mark Schwartz should be the attorney to represent City Council in Commonwealth Court when the Receiver takes Councilors there because they haven’t followed his orders. They haven’t agreed to raise the residents-only Earned Income Tax (EIT) nor have they confirmed the Communications Director position.

On the issue of the Communications Director position, this is a matter of picking battles, but the majority of City Council has held firm on this matter, which seems to be based on both economics and principle. Should the City have a Communications Director? Former Receiver David Unkovic felt it was important that such a discombobulated Administration of such a troubled capital city have a spokesperson as its face. Versus the Mayor, it goes without saying. The Court shouldn’t have to take too long to decide on that one.

However, on the matter of the Receiver ordering City Council to increase the EIT, that’s a intricate issue that requires and deserves serious attention, critical thought, and astute debate.

The EIT increase is an important battle, and not just for the City of Harrisburg, but for the entire Commonwealth, all 3rd Class cities, and any municipality in Act 47. The Court battle over a State-appointed Receiver ordering elected officials to increase taxes is significant because it sets the tone for what the State can force a municipality to do. Act 47 states the Receiver is not able to unilaterally raise taxes. He can’t do it. So the issue becomes an issue of jurisdiction. Can he use his power of order of implementation to make City Council be the one to do what he is not sanctioned to do himself?

Whatever is decided in Harrisburg’s case will become the precedent for the State to use in other places in financial distress.

In fact, the entire issue of Receivership is a state-wide issue being observed and pondered by many people and places outside of the financially-distressed capital city. As things get tougher all over the State, other 3rd Class Class cities in PA’s Act 47 program watch Harrisburg with apprehension. The Receiver amendment Act 47—Senate Bill 1151—happened determinedly. It happened adamantly. Now it’s being put through its tests.

After David Unkovic left, the State seemed to be making up the process as it went along. Senate Bill 1151 had nothing in it about what to do when a Receiver walked away from the job. Quit. Resigned. There was nothing there outlining a process of replacement or deadlines of execution. So, in perfect bureaucratic fashion, the City of Harrisburg was given an Administrator of the Office of the Receiver and told the Recovery Plan still carried forward. Without interruption.

There were grumblings about this. They became louder as time went on and no new Receiver was named. When more than a month passed without a Receiver replacement, the press began to question Governor Corbett who struggled with words but finally said, “I think you can tell, that uh, it would take a certain type of individual that would willingly and voluntarily place themselves in that position. And you read between the lines on that one.”  A few days later Commonwealth Court Judge Leadbetter said the State had a week to give the Court a report on what was happening with Harrisburg’s Receivership. On the due date, May 11th, the Governor nominated retired Air Force Major General William Lynch as the next Receiver of the City of Harrisburg. He was confirmed and PA’s Receivership law was put back on track as far as the State is concerned.

William Lynch has been the City’s Receiver since May 24th and the process of implementing the Plan carries forth including his issuing the order for the City to raise the EIT on its citizens.

Unfortunately, the City’s CEO, who is the one who should be carefully concerned with the City’s rights and sovereignty seems perfectly content with her delegated duties of administration rather than analyze and question the State’s reach. (Of course, if the reach is coming from the Controller, then the Mayor is quick as lightening to vehemently mark her territory as she sees believes it should be defined. A look back on the whole direct deposit issue exemplifies that).

Despite the Governor’s proclamation that City Council has done nothing, City Council has resisted the State’s tax levying. The majority of Council has succeeded in standing adamant against the EIT increase. The next stage of the battle will require sophistication, technical prowess, and dexterity.

Mark Schwartz hasn’t sufficiently demonstrated those qualities; and therefore, he can’t be the one to handle the EIT matter in Commonwealth Court on behalf of the citizens of the City of Harrisburg.

It’s time for essential conversations. It’s essential we have the right people in place.

Yes, Mark Schwartz has shaken the system up by pointing fingers squarely and overdramatizing the truth, a style which is useful in the midst of processes draped in manufactured authority and clandestine arrangement-making. In fact, he’s made valid points in Court “in his own way,” as Judge Leadbetter said at the Receiver’s Recovery Plan hearing back in March. However, Schwartz tends to overuse his effect. He’s inclined to say too much and go too far past the line of effectiveness. Plus, he’s missed vital deadlines, which makes him a technical liability. How can we count on getting to the merits of the case if opponents can take our representatives out on technicalities?

Mark Schwartz has served an incredible purpose in the City of Harrisburg. He’s right about the fact that powerful people with powerful interests are powerfully pushing to maintain power over the people and the people’s power and interests. In this next battle in Commonwealth Court, it’s time for another legal approach and another legal style. It’s time for another attorney.