Thursday, May 05, 2011

The PA Supreme Court on DROP

In it's infinite wisdom, the city of Philadelphia decided in 1999 to let some city employees set their retirement date in advance and collect pension payments (which would go to an account) and paychecks at the same time. On their retirement date they would receive the accrued pension payments.

A problem comes up when elected officials decide to participate in the program. Speaking solely for myself, it seems odd for an elected official to select a retirement date, unless that is a statement that he or she intends to leave office. Being re-elected, retiring for a day, taking the DROP payment and then staying in office just seems wrong somehow. But I'm not a lawyer or an elected official.

This year candidates for city commissioner and city council took City Commissioner Margaret Tartaglione and City Council members Frank Rizzo and Marian B. Tasco to court over DROP. The case went to the state Supreme Court. (See "Court: DROP is no reason to drop Philadelphia candidates from ballot," by Jeff Shields and Marcia Gelbart, Philadelphia Inquirer 5/01 for more information).

The court ruled 5-2 that DROP could stay. Tartaglione's lawyer, Dan McCaffery, who ran for city district attorney last year and has just announced his candidacy for state attorney general, had to sit out the Supreme Court case since his brother Seamus is a judge on the Supreme Court.

Joe Doherty, attorney for two people related to one of Tasco's challengers, sent out this release:

Earlier today, the Pennsylvania Supreme Court issued a one-page order affirming the Common Pleas court ruling that Commissioner Tartaglione, Councilwoman Tasco, and Councilman Rizzo are permitted to seek reelection despite their participation in the DROP. The Court gave no indication of the basis for the ruling. This is fairly typical in expedited appeals such as these.

Notably, however, Justice Thomas Saylor, joined by Chief Justice Ronald Castille, dissented from the majority. In doing so, the dissenters accepted the principal argument made by the Tartaglione and Tasco challengers -- i.e., that the candidates have not and cannot meet the legislatively-mandated requirement that they retire upon ceasing participation in the DROP. On behalf of the dissenters, Justice Saylor wrote, "It is undisputed that the candidates' contemplated 'retirements' occurred (or will occur) for only a single day or several days, and only after their contemplated or actual reelection to the same post. Under these circumstances, I would find that Appellees' supposed 'retirements' amount to a mere pretense, or sham, designed solely to obtain the lump-sum DROP benefit involved and then to continue on in the same position as before."

As with any legal loss, we are disappointed with this outcome. We believe that there are compelling legal reasons why DROP participants should not be permitted to seek reelection, as set forth in our briefing, the briefing in opposition to Councilman Rizzo, the amicus briefs filed by various organizations including the Committee of Seventy, and Justice Saylor's dissent. Nevertheless, we respect the Supreme Court's decision and appreciate its willingness to consider the appeals.

In my opinion, elected officials should not be eligible for DROP.

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