Election 2019

‘Councilmanic prerogative’ is a campaign issue. But WTF is it?

A simple guide to City Council’s real estate power.

Philadelphia City Council

Philadelphia City Council

Philadelphia City Council on Flickr
maxmarin-square

In February, protesters interrupted Councilwoman Jannie Blackwell’s campaign kick-off party with accusations that the West Philly lawmaker was helping developers benefit from city-owned land at her community’s expense.

The protest carried into City Council’s chambers that week, where one demonstrator was arrested for calling to quash “councilmanic prerogative.”

This clunky, eight-syllable phrase has appeared with increasing frequency in the local news — and more recently it’s even become an issue on the campaign trail. But what does it mean, exactly? People know it deals with political power and real estate, but the details are wonky and confusing.

With that in mind, here’s our simple guide to one of the most complicated and powerful apparatuses in City Hall.

Hold on, why should I care?

City government is the largest landowner in town, and as development explodes, its massive real estate portfolio has quickly become a coveted asset. Councilmanic prerogative deals directly with the inordinate power lawmakers have over the transfer of public property into private hands.

Do you care about affordable housing? What about gentrification? What about how your tax dollars are spent — or in the case of sweetheart land deals to favored developers, squandered? Do you care about government transparency? What about rampant blight across the city, which vacant city land contributes to? The use and abuse of councilmanic prerogative has big implications for all of these issues.

OK, I’m sold. So what is it?

Councilmanic prerogative is nowadays the not-so-shorthand phrase people use to describe Council’s influence over individual real estate transactions involving city-owned land.

But in the literal sense, it’s best understood as a tradition loosely grounded in the law.

The legal part is easy: Both state law and the city charter grant City Council some authority over the sale of local real estate. Legislators must introduce and pass bills to move forward the sale of public properties, or to change zoning designations in their districts.

The prerogative refers to Council’s self-declared right to make these decisions without interference from each other. The result is that individual councilmembers have a whole lot of power in the disposition of lucrative city-owned land — and very little scrutiny of the politics behind these ostensibly public real estate deals.

So how does that look in practice?

Nowhere in the laws does it state how Council’s 17 members should wield their authority over land use. But for as long as the city’s political elders can remember, the power has been shored up among the 10 district councilmembers.

Prerogative holds that no councilmember shall interfere with real estate business outside of their district. The seven at-large councilmembers — who technically serve the whole city — are expected to co-sign the wishes of the district councilmembers.

In other words, the tradition is essentially a rubber-stamping process for public real estate transactions.

There are exceptional situations where this totem is broken. Recently, during the contentious negotiations over the sale of the 4601 Market Street building that caused problems for Blackwell, other councilmembers intervened to publicly discuss the sale in which tens of millions of dollars were on the line.

Most of the time, though, members of Council keep silent when one of their colleague’s introduces a bill to finalize the sale of a piece of city land. Rarely are questions asked about the sale price or the details of the bidding process. A Pew report from 2015 — the most in-depth look at the topic to date — found that only 4 out of 730 land deals had any dissenting votes.

Coupled with city’s opaque land sale, prerogative fosters a culture in which developers go directly to councilmembers to get their support to purchase properties for sale within their district. But as Pew noted, it’s impossible to know the full scope of prerogative. Deals are often struck or derailed behind closed doors, leaving behind little record of what happened.

Is it good or bad for Council to have this much power over city land?

District councilmembers have been defending their vice-grip on land issues for decades, arguing they were elected to deal with these matters — and either they make the decisions or it’s some faceless bureaucrat in City Hall who is accountable to no one and doesn’t know the neighborhoods.

“I think we know our district better than city planners,” former Councilman Jack P. Kelly told the Daily News…in 1990.

Today’s council body echoes the same line. They also argue that the mayor’s administration already has too much power, and stripping Council’s land sale authority would inevitably tip the scales further toward the city’s executive branch.

But critics of prerogative say the tradition is ripe for corruption. Sure, most public land transactions are fully above board. But in all six cases where councilmembers were convicted of wrongdoing since 1981, Pew noted at the time of that report, the scandals all had something to do with council’s power over public land.

Is prerogative the only problem here?

There are bigger systemic issues in the way the city sells its public land that have enabled the alleged abuses of prerogative by city councilmembers in recent years.

First and foremost, the city’s land sale process is insanely confusing and riddled with structural flaws that officials have been slow to reform. There are three separate agencies that have long handled with the disposition of public land, which operate under different guidelines and degrees of transparency.

Caught backing sweetheart deals for favored developers, councilmembers have also blamed the administration’s methods for appraising city-owned land, or the lack of communication from the administration alerting them to other competitive bids.

Moreover, the city’s website for advertising its land on the market is essentially useless. Councilmembers are quick to blame the mayor for these woes, while still benefiting from the power the system provided them behind closed doors. Even in proposed solutions to these problems — like consolidating all land sales within the city’s newish Land Bank — councilmembers still retain their final say in land disposition.

What would it take to fix?

Following a number of recent scandals, Mayor Jim Kenney’s administration and City Council have introduced measures to reform the land sale process. The ultimate goal, on paper, is to steer the property into the best hands for the city and the neighborhoods — and to ensure that no one can take advantage of the process.

But critics argue that under the unchecked tradition of prerogative, backroom politics are inevitable.

Asked about reining in prerogative, Kenney often notes there’s nothing he can do about it. The councilmanic prerogative could only be amended by a vote from Council — and Council isn’t one to place limits on itself of its power.

Without reforms and increased transparency around city land, pushback against the tradition will likely continue to increase.

Today, public interest in the issue has undoubtedly grown, thanks to in-depth reporting on backroom land deals and even a high-profile lawsuit involving a sitting councilmember and his political rival.

One candidate for Council at-large, Justin DiBerardinis, a former staffer to Councilwoman María Quiñones-Sánchez, has even proposed restricting councilmanic prerogative. Will this election be a referendum on the tradition, as some have suggested? There’s no evidence for that yet.

In another four years? Maybe.

Not long ago, few people in Philly’s self-assured political world ever thought councilmanic prerogative would make its way to the campaign trail at all. It was an obscure, niche issue that interested only political junkies and government watchdogs. Consultants advise against bringing it up, as it’s a turnoff for voters.

Time will tell.

Want some more? Explore other Election 2019 stories.

Thanks for reading another Billy Penn story

Seems you’re the kind of person who really digs in. Want more? Sign up for our morning update, the quick, easy, free way to stay on top of Philly news.

Thanks for reading Billy Penn

Like the story above, everything we publish is powered by our members. If you enjoy reading, throw us a bone! Just $5/month makes more difference than you’d think.

Thanks for reading! We need you.

Member donations power our newsroom. If Billy Penn helps you feel more connected to Philly, we’d love to count you in. Will you join us?

Lock in your support

Reader support powers our newsroom. A monthly membership helps lock it in.

Can we count on you as a Billy Penn sustainer?

Winning the local journalism game

Thank you: Your support as a member is powering our news gathering.

Know someone else who might like our work? Invite them to join.