Sorry, But the Johnson-Feibush Verdict Won’t End Councilmanic Prerogative

Here's why Council members still have near-absolute power over development in their districts after this week's case.

City Council Entrance

The verdict in the federal civil lawsuit between Point Breeze developer Ori Feibush and 2nd District Councilman Kenyatta Johnson was remarkable for a couple reasons.

Think about it on the most basic level: A federal jury determined, by a preponderance of the evidence, that a sitting Councilman was guilty of the kind of petty abuse of power that everyone suspects, but can never prove, that Philadelphia politicians are involved in all the time. In the jury’s view, Johnson had blocked the sale of two city-owned lots to a developer because that developer was a political opponent. Johnson maintains that politics had nothing to do with it, but the jury rejected that. They saw it as cheap retaliation under the color of the law.

On another level, it was remarkable to hear judges, jurors and city attorneys talk openly in court about Councilmanic prerogative, an unwritten tradition that lets Council members control development in their districts. The tradition occupies a shadowy sort of space in the mythos of local politics. How real is it, reporters and political observers sometimes wonder? How powerful? How ripe for abuse? And then right there in court, lawyers for the city government flatly stipulated that Councilmanic prerogative is so solid a custom that it might as well be written policy.

But even though the jury ruled that prerogative was the moving force that led to the retribution against Feibush, the verdict won’t end the tradition. It’s unlikely even to slow it down. Here’s why:

The jury found that Johnson abused prerogative

The jury concluded that Johnson had misused the power of his office. It didn’t find that the power itself was an abuse. Johnson used his prerogative when he refused to introduce the resolution that would have let Feibush buy the properties in question. That was the fundamental wrongdoing. But what if Johnson had decided to introduce the resolution and let Feibush buy the lots? That also would have been a use of his Councilmanic prerogative, and there would have been no wrongdoing in the jury’s eyes.

In order to avoid any use of prerogative in that case, another Council member would have had to intervene to introduce the bill. The jury’s verdict might ever-so-slightly create an incentive for another Councilperson to intervene the next time their colleague tries to block a land sale. But it’s doubtful anyone except the interested parties would even know that a Council member was refusing to play ball. That’s why prerogative is said to be a “silent veto.”

You can’t repeal a non-law

This is an obvious one. Prerogative is a tradition that developed over many years — not a statute that could be repealed by a majority vote. Getting rid of prerogative would require all members of City Council making a concerted effort to behave in new and different ways, taking a serious interest in districts outside their own, and carefully considering the merits of developments and land deals no matter where they occur. And that’s unlikely, because …

Much of the time, the practice makes sense

Sure, it was sorta tough to type that last line. But even if there was no tradition of deference in City Council, the body would still need to approve land sales and zoning bills. If you want to buy a small lot in Fishtown, it makes more sense for Fishtown’s Council representative to introduce the authorizing bill than it does for West Philly’s. As 10th District Councilman Brian O’Neill said on Thursday, if he makes a bunch of bad decisions about land use in his neighborhoods, at least he’s theoretically accountable to the constituents.

Council members aren’t going to start regularly introducing zoning bills in each other’s districts now that a jury has determined that one member crossed the line. But maybe, just maybe, they’ll keep a closer eye on where the line is. Hell, acknowledging that there even is a line is a decent start.

Follow @JaredBrey on Twitter.