Legal opinions drastically differ on whether Allegheny Council has the power to reduce county jail population amid COVID-19

By March 24, 2020 No Comments

The Allegheny County Jail. (Current Photo by Jacob Mysliwczyk)

By Charlie Deitch
Pittsburgh Current Editor

Update, 5:23 p.m.: By a vote of 9-5, Allegheny County Council voted not to suspend council rules and act on Hallam and Bennett’s legislation tonight, opting to wait for the next meeting two weeks from now. Hallam said during the meeting that because hers is emergency legislation, normal rules would not apply. Regardless, the council waives what is known as a “second reading” quite often. In fact it did so several times this evening.

Whether or not Allegheny County Councilors support legislation tonight to decrease the population of the Allegheny County Jail in the middle of the COVID-19 crisis will likely come down to which legal opinion they believe is correct.

Councilors Bethany Hallam and Olivia Bennett have introduced legislation that would give county councilors the authority to immediately release certain incarcerated individuals to reduce the spread of COVID-19 and stop a “catastrophic” outbreak of the disease at the jail. Among those inmates are:

  • Those alleged to have committed a technical probation or parole violation;
  • Those alleged to have violated probation or parole by committing a misdemeanor and/or non-violent offense;
  • Anybody charged with a misdemeanor and awaiting trial;
  • Anybody charged with drug possession, sex work, or other nonviolent offenses and who is awaiting trial.
  • Additionally, anyone not fitting these categories would receive an individual review.

The Pittsburgh Current obtained two opinions, one not supporting the legislation from county council’s attorney and one that supports it from chief counsel for Allegheny County Controller Chelsa Wagner, which provides counterarguments to the dissenting opinion.

Livestream Allegheny County Council beginning at 5 p.m.

Prior to the meeting, attorney John F. Cambest issued an opinion for county council that the “ordinance was not in proper legal form” and “would not be able to be implemented” if approved. Cambest called the intent of the ordinance “commendable” given the coronavirus outbreak but he said the language “directing certain agencies and entities in Allegheny County and Western Pennsylvania questionable at best.”

Specifically, Cambest points to the Home Rule Charter stating that council, “shall not enact an ordinance or resolution that interferes with the executive branch of county government or any of the employees under it.”

Cambest concluded that, “the entities under the executive branch of Allegheny County, specifically the public defender’s office, the District Attorney of Allegheny County and other entities identified in the ordinance” could not be implemented.

“It is my belief that only the Criminal Courts of Allegheny County and it’s judges along with the Allegheny County District Attorney, Office of the public defender … are the only entities that would have jurisdiction and the power to release the classification of individuals identified [in the ordinance],” Cambest writes. “Allegheny County Council does not have the jurisdiction or the power to require the Allegheny County Jail…to immediately undertake a reduction in population…”

However, Cambest’s opinion isn’t the only one council will have at its disposal this evening. Brad Korinski, chief legal counsel for Allegheny County Controller Chelsa Wagner says enacting this ordinance is well within council’s power. 

“I offer a countervailing opinion and a call for concerted action in the face of an emergency, the gravity of which this council and county has heretofore never confronted,” Korinski writes. “From the outset, let us be clear, we are in uncharted waters in a myriad of ways. There is no controlling body of law, precedential court opinion or little else to inform council what it can or cannot do to address the exigent circumstances facing our county.”

Cambest writes that the “inability to implement” the provisions of the ordinance nullifies the ordinance. But if that were true, Korinski writes, “there could be virtually no legislation county council could pass without the prior consent of the county executive as to its implementation.” Korinski says council is under no obligation to vote on and pass legislation that is “guaranteed to be implemented.”

Korinski says county code is full of legislation that has been passed by council and never implemented. “The point is, county council has historically passed legislation reflecting what is important to it and its constituents without regard to how that legislation is, or is not, implemented by other branches of government.”

On the idea that county council cannot pass legislation that “interferes with the executive branch of Allegheny County,” Korinski says a literal interpretation of that  means “there is nothing for county council to do other than issue proclamations.” Korinski says if that were what the ordinance meant then county could have never passed legislation for the “prevailing wage ordinance, that certainly impacted the contractual powers of the executive branch.” Another example is the Minority, Women and Disadvantaged Business Enterprise Program.

“Thus … I do not believe either the ‘inability to implement’ or the ‘interference with the executive branch’ arguments prohibit County Council from acting to pass legislation to confront this emergency.” Korinski further said if Fitzgerald doesn’t like the legislation he can veto it but adds, “there is no reason I can discern for council to essentially veto itself.”

Korinski goes on to say the ordinance is a “valid health and safety regulation imposed upon a parcel of property owned and controlled by the county.” Korinski says Cambest’s opinion that only the courts can release inmates is based on a “misreading” of the proposal. The term “release” in the ordinance does not involve any “countermandering” of any court order. “What this ordinance says is such individuals [under an order of the court] cannot be held at the Allegheny County Jail due to the incredible risk to the public health that the current jail population proposes in this pandemic.”

He says the ordinance wants to protect county workers, residents and taxpayers who are at risk because of the county jail. Korinski says the legislation allows for the order to be carried out in an “orderly, cooperative fashion” and does not seek to implement rules that aren’t in the county’s right as the owner of the ACJ. He says there is no requirement that the county admit people to its jail, despite the “orders of other actors.” 

Korinsky concludes: “in light of concerns that may exist for some council members … I believe it is essential that all of us at this moment acknowledge the need for concerted, urgent action to protect everyone in the county and the region. Failure to do so will cost time and lost time equals lost lives in this context. … While there may be no right or perfect answer in this context, I think it’s fair to say that the one wrong answer would be inaction.”

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