By Ann Belser
Special to the Pittsburgh Current
Pittsburgh’s law department has filed a brief in Common Pleas Court stating the city’s Home Rule Charter is unconstitutional and has no way to remove a member of council who violates its provisions.
The brief is in response to a lawsuit challenging whether Rev. Ricky Burgess, who was re-elected in 2019 to a fourth term on council, is legally allowed to serve in that position while working as a member of the faculty of the Community College of Allegheny County (CCAC).
Carmen Brown, of East Liberty, an activist with Penn Plaza Support and Action, filed a lawsuit in Common Pleas Court claiming that Burgess is in violation of the provision of the Home Rule Charter that states members of council shall not “hold any office, position or employment in the government of the United States, the Commonwealth of Pennsylvania, the City of Pittsburgh or Allegheny County.”
The exception for that is being a member of the national guard or the appointment to an authority, to which council members are often appointed because of their position.
The remedy, set out in the charter, is “members of council who violate any of the above provisions shall immediately forfeit their office.”
The city law department, defending Burgess, filed a brief challenging the constitutionality of the home rule charter.
Burgess and the city admit the facts of Brown’s case, that Burgess is a current member of City Council and that he has been a tenured faculty member at CCAC since 1991.
However, the city’s brief argues that “CCAC is not the type of government unit prohibited by the Home Rule Charter” and points out that while the Allegheny County Home Rule Charter prohibits employees from receiving a salary from the county or agency of the county, the late Dr. Charles Martoni was employed at CCAC while he was also a member of County Council: “Thus it is clear that Allegheny County itself does not see CCAC as part of Allegheny County Government.”
The city also argues that the provision in the charter that calls for his removal from office violates Pennsylvania’s constitution which only allows “all civil officers elected by the people” to be removed from office by the Governor with two-thirds of the Senate.”
Bruce Ledewitz, a professor at the Duquesne University School of Law, called it crazy that the city’s law department would argue that the city’s Home Rule Charter violates the state constitution.
“Why aren’t they defending the city charter? Isn’t their job to defend the city charter? That’s a little odd,” he said.
Ledewitz said the city is arguing that if the court finds that CCAC is a governmental body covered by the charter, which it also disputes, then while Burgess’ position on council violates the charter, the city does not have any way to remove him because that can only be done by the governor and the senate.
Ledewitz also took issue with the argument that CCAC is not a governmental body because the county did not enforce the provision against Martoni.
“The fact that somebody else violated the county charter doesn’t justify violating the city charter,” he said.
Even if there is no way to remove him, Ledewitz said, Brown is still entitled to a decision as to whether Burgess is in violation of the provision of the charter that states he cannot be a government employee.
And if the court rules he is in violation of the charter, “at the very least, the city should not be paying him to be a councilman,” Ledewitz said.
The city law department would not comment on the case, Timothy McNulty, the city’s spokesman said it does not comment on pending litigation. Burgess did not respond to a request for comment.
The arguments in the case are scheduled before Common Pleas Judge Joseph James on Nov. 19.
This article was written in collaboration with Pittsburgh Print, which is also publishing a version.