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Forum: The unwinnable impeachment

Petitions to remove Tom Murphy from office won't succeed, says Ken Gormley. But the message of frustration is real -- and an indication that solutions must be shared

Sunday, August 31, 2003

Pittsburgh citizens might want to think hard before spending their Labor Day weekend jumping onto the bandwagon to impeach Mayor Tom Murphy. Not only is an impeachment effort almost certain to fail, but it would create a California-like spectacle, distracting elected officials across the commonwealth from their real work: rescuing the city from its dire financial straits.

 
 
Ken Gormley (gormley@duq.edu) is a professor at Duquesne University School of Law, specializing in constitutional subjects. He served as mayor of Forest Hills from 1997 to 2001.
   
 

If Pittsburgh collapses, who sits in the mayor's office will be the least of our collective worries.

I have no quarrel with Jim Genco of Lawrenceville, the man who has launched a crusade to fire Murphy. Indeed, I give him credit. Fueled by outrage and honest political fury, he has collected thousands of signatures calling for Mayor Murphy's removal, pursuant to Section VIII of the city's home rule charter, which sets forth a mechanism for impeaching city officials. The problem, as my colleague Professor Bruce Ledewitz pointed out last week, is that the city charter's removal provision -- which has energized Mr. Genco -- is almost certainly unconstitutional.

This is not the first time a municipality has enacted a flawed law for removing public officials. In 1976, a group of citizens in Philadelphia collected over 210,000 signatures to remove Mayor Frank Rizzo, pursuant to a recall provision in the city charter. That provision was swiftly invalidated by the Pennsylvania Supreme Court because it conflicted with the state constitution. In the 1950s, the court nixed a grass-roots effort to remove the elected supervisors in Sewickley Township in Westmoreland County, even though the number of signatures gathered by those citizens met the requirement of their Township Code.

The Pennsylvania Constitution's removal provisions -- which create high hurdles for any citizen seeking to oust a public official -- have consistently been declared the exclusive avenue for redress. An elected official can be properly removed, via Article 6 of the state constitution, in only three ways. All of them involve serious misconduct approaching criminality. None has a ghost of a chance of succeeding with Mayor Murphy:

An official can be impeached by the House of Representatives in Harrisburg, tried in the state Senate and removed if convicted by two-thirds of the members present. (This was the fate of Supreme Court Justice Rolf Larsen in 1994.)

An official can be convicted of "misbehavior in office" or "an infamous crime" in criminal court, leading to automatic forfeiture of his or her office.

An official can be "removed by the governor for reasonable cause, after due notice and full hearing on the address of two-thirds of the Senate."

The Pennsylvania courts have set an extremely high bar in defining the proof necessary to convict and remove officials. The state's high court, at various times, has defined misbehavior in office as "a criminal act in the course of the conduct of the office," or "failure to perform a positive statutory duty" or "cupidity or pathological sloth" or "perverseness, criminality or culpable indifference."

Alleged fiscal bungling and perceived policy goof-ups, of the sort critics have attempted to pin on Mayor Murphy, do not cut the mustard under these provisions.

Some might see a benefit, political or otherwise, to "sending a message" to Mayor Murphy through an impeachment vote. Yet we must remind ourselves that Pittsburgh's reputation is on the line. In the midst of a serious budget crisis, the last thing the city needs is a carnivalesque impeachment proceeding pre-ordained to fail but sure to feed the media lust for sensationalism. This is what has rendered California a laughingstock.

Even if Tom Murphy were removed, the facts of life would not change. Regardless of whether Murphy or City Council President Gene Riccardi or Jim Schwarzenegger (Arnold's cousin) serves as mayor of Pittsburgh, the problems will not be cured unless every city, state and federal official in Pennsylvania devotes full-time worry and energy to the task.

As a former borough mayor whose duties included supervision of a police department, I vehemently disagreed with Mayor Murphy's decision to lay off police officers, school crossing guards and EMT personnel to solve the budget shortfall. As someone who opposed spending gobs of public money to build new stadiums, I also took issue with Mayor Murphy's decisions on that front. But the state Constitution, and the democratic frame of government we embraced by becoming citizens of this nation, create a simple recourse for anyone displeased with Murphy or any public official: Vote against him in the next election.

The present climate in California notwithstanding, we should not be seduced into casting aside our traditions and institutions of government. We in Pittsburgh have always been proud of our image as hard-working and persevering people. This is a time to huddle together and slug out solutions. This is not a time to attack each other and spend thousands of dollars (when the city can't even pay for basic services) hiring lawyers to fight over an impeachment charge that will never stick.

Moreover, it is unfair to lay all blame at the feet of Mayor Murphy. It is not the person; it is the time. States are starving for money due to federal cutbacks, which means municipalities across the entire country are also starving. The city of Pittsburgh with its elderly population, weak tax base and plethora of tax-exempt properties -- in the form of churches, hospitals, universities and cultural entities -- has been on the financial ropes for decades. In the recent past, the city has privatized the zoo, the aviary and Phipps Conservatory; helped push for the county's 1 percent Regional Asset District tax; transferred the Pittsburgh Water and Sewer Department to an authority; and placed numerous bandages on the ailing budget to make ends meet. The day of reckoning has now come.

There is nothing undemocratic about Jim Genco and his platoon of volunteers expressing their fear, disagreement and outrage about the path Mayor Murphy is taking to deal with this serious fiscal crisis. Indeed, it is the essence of democracy. But if these citizens wish to play a positive role in the recovery of the city, they should bundle up their impeachment petitions, deliver them to Mayor Murphy's office as an expression of their strong dissatisfaction -- and begin working on concrete proposals to remedy the problems.

For his part, Mayor Murphy should take the criticisms and recent poll numbers seriously. As a leader faced with difficult times, he should commence public hearings throughout the city to hear his constituents' complaints and treat them with absolute respect. He should continue to rethink his past strategy of building up the city's tax base to cure nagging budget problems, and inject faster-working measures into the mix. Aggressively pressing for an increase in the occupation tax paid by all who work in the city and paving the way for private nonprofit institutions to make voluntary contributions through public service foundations, as permitted by law, are two good places to start.

I don't live in the city, but I know that if the worsening crisis is not stemmed, all of us who have made our homes in this special region will be at risk.

In response to the current emergency, the Pennsylvania Senate Finance Committee has scheduled a special meeting in Pittsburgh for Sept. 8, in City Council chambers. It will discuss the budget crisis, hear from Mayor Murphy and invite comment by interested citizens. Perhaps that is the perfect forum for Tom Murphy, Jim Genco and others who share a common desire to rebuild the city of Pittsburgh as a strong and proud community, to sit in the same room and begin working towards a viable plan.

It is better than tearing ourselves apart in the name of preserving the place that we all love.

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