When Success Becomes a Dirty Word

A modified version of the Police Accountability bill covered in this post has passed preliminary approval in the city council. The unanimous vote puts the bill on next Tuesday’s agenda where it is expected to receive passage. 

The City Paper does an excellent job covering the bill here.

The Trib on the other hand takes pains to call the approval ‘tentative’ and implies that the only people applauding the effort are ‘black leaders’. Funny, I could’ve sworn Vic Walczak and Beth Pittinger were concerned to uphold the rights of everyone.

The PG chose not to cover it at all, though they are probably awaiting final passage to print their write-up. 

There is another strange feature of the coverage however. By all accounts, the FOP, public safety and Chief Harper all came to the negotiating table to craft a bill that would address community concerns. This level of cooperation was rather extraordinary considering that just a few months ago FOP President Dan O’Hara was threatening that the bill would have officers so busy filing reports that they would have no ability to fight crime.

The really surprising thing, however, is this. The Trib’s coverage and an article currently running in the City Paper both point out that the Police Bureau is currently suffering from widespread mistrust in the community.  Their cooperation on this bill then would be a great way to start to show good faith efforts to respond to these community concerns. Further, I would expect the mayor’s office to be doing its best to capitalize on the good will brought on by this cooperation.

And yet, the FOP, Chief Harper and the Mayor’s office have been silent. None of them bothered to give a quote to either publication as they were preparing stories. In fact only Huss seems to have addressed the issue at all. While he called the negotiations ‘positive’ and ‘productive’, he certainly didn’t do much to emphasize this unprecedented cooperation.

I think the biggest question is ‘what happened?’. Did public safety or the chief come to realize that this bill was going to pass whether they wanted it to or not and so decided to get some input on it? Was this course of action directed by the mayor’s office? 

While there are plenty of things to praise in this city, cooperation of this sort usually isn’t among them.

Still, all parties that sat down at the table are to be commended. That includes the FOP, the chief and public safety (maybe even the mayor’s office). What is really strange though is that no one seems ready to step forward and take the credit!

The Politics of Parking and Pensions

I think almost everyone has probably grown tired of the parking and pension issue. But I promised to cover the politics of the solution and so cover it I will.

I don’t take the various proposed solutions to the pension crisis to have been undertaken in bad faith by either Ravenstahl’s office or the council. However, I do think that it was, at bottom, a political solution. That is, a solution that had as much to do with keeping a scorecard of winners and losers as it had to do with bailing out the pension.

Let us start with the mayor’s proposed solution. Lease the parking assets for 50 years to LAZ. This would have generated an immediate 452 Million, of which 230 Million was to go to the pension fund. The rest was discretionary, though it was suggested that some of the remainder would also find its way into the pension fund. 

Now on the face of it this doesn’t seem like such a terrible plan. 452 Million, if invested at 6% a year, will compound to almost 8.5 Billion over 50 years. Further the provisions of Act 44 still allow for the city to impose a parking tax. Finally, a great deal of repair, maintenance and employee costs would be reduced under this lease plan. 

But the plan was rejected. Informing this rejection was the idea that a long term of lease of assets should be a last resort for any city. Something that should only be done when there is no other way to make budget. In fact, Chicago’s 75 year lease of parking assets and the steep increases in parking rates was also on everyone’s mind during that time. It was widely reported that LAZ was  aggressively enforcing meter times and paid that city about a quarter of what its parking assets were worth.

Now, fair enough, LAZ may be a company with more to gain from this deal than the city. It certainly would have imposed a more aggressively enforced and expensive parking deal and they would have been largely outside of public control.

So what did we get instead? 

More aggressive enforcement, more expensive parking and a parking authority that is largely outside public control!

However, in order to get that we had to go through a few different plans. Each was rejected in some form or other by the mayor’s office. 

Throughout the argument between city council and the mayor a fairly constant refrain could be heard – “keep public assets public”. Indeed, Dowd did a great deal to forcefully articulate this position at every opportunity, though I often took him to speaking for most everyone else when he did.

"I want to keep public assets public. I want to savethe pension fund" from state takeover, he said. "Improving theservice of the parking authority is the third goal."

The problem is that many of the proposals offered by council didn’t really do that. 

It might help to recall the various alternatives that were being floated at this point in the debate.

 One scheme would have given the parking infrastructure directly to the pension fund.

-This would have, perhaps, saved the pension but it would have then been outside the public control and little would have improved in the parking authority.

 Another was to sell the parking infrastructure the city owned to the parking authority and use the proceeds to fund the pension.

-Given that the mayor controls the authority this also would have reduced the public nature of these assets. The money would have flowed into the parking authority not the city.  Again, nothing in this plan improves the service of the parking authority. 

Still another was to lease certain lots and meters to a private contractor for 40 years but with a revenue sharing agreement.

- Again maybe this prevents the takeover, but the other issues are untouched or made worse.

Each of these was rejected by the mayor’s office at various times.In response, Dowd said the mayor’s exhibited a “failure of leadership”. And Peduto accused the mayor of bullying tactics and threats. The perception wasthat this was a game of brinkmanship. By declining to offer alternatives the Mayor was dooming the pension fund to takeover by the State.

Which brings us to the proposal that won out. Transfer the parking tax revenue stream to the pension fund for the next 40years, and deal with the hole created in the budget by demanding a greater cut of the increased revenue brought on by rate increases and aggressive enforcement from the parking authority.

 I suppose this keeps public assets public but only nominally so. The problem is that the lion’s share of the parking infrastructure is still controlled by the parking authority and they have been particularly recalcitrant in coming to a new deal on sharing that revenue stream. While the authority is controlled by the mayor’s office, and so is in some sense under public control, in reality this extra layer of bureaucracy insulates the parking authority from real oversight and scrutiny.

Now city council was facing a deadline here and had little support form the mayor’s office, but it should still be pointed out that while they had criticized the mayor for playing a game of brinkmanship, they did something similar. They essentially put themselves in a position to go broke if the parking authority didn’t renegotiate its revenue sharing agreement with the city. 

In this interplay between council and the mayor, the urge to position oneself to declare victory over the other is particularly palpable. The mayor wants to see his plan succeed and so he ignores alternatives and refuses to allow his parking authority to cooperate with council’s plans. In response the need to show up the mayor as uncooperative leads council to stretch their authority to the absolute limit and essentially make the city’s budget contingent on that cooperation. 

As far as the second desire of Dowd’s goes, this was obviously accomplished. The pension fund was saved. Still, that outcome looked far from certain for a long time and I have heard privately from many who were surprised by that outcome.

Was the parking authority’s service improved? No. But then, I wonder if that was really a realistic goal anyway. If Dowd believed he could pull this off, he is to be admired for his ambition, but I suspect that this functioned as another talking point: another way to needle Ravenstahl.

So here we sit with some tough decisions to make about parking revenue, some tough politicking to get the parking authority to accept a new revenue sharing agreement, and the silver lining – a plan that actually rescued the pension fund. 

But I don’t think we are in any position to say, from this position, whether that solution was the best one. We still have one of the problems that come with the lease plan – more expensive parking and aggressive enforcement. And we don’t enjoy the benefits of outsourcing maintenance, employee costs and repairs. These are largely benefits the parking authority would enjoy, but if we consider that a ‘public entity’ then I guess we can claim those costs and benefits as our own.

We also have the pension fund under our control, in some sense. We can’t really tamper with the revenue stream, though at least we made the decision to use that revenue. And while keeping it seems like a victory, in reality it is a mixed bag. 

The state’s pension fund would have given us lower administration costs, more realistic projections of growth and would have been subject to more professional management. (Our pension fund, in contrast, has made risky investment decisions and recently pulled assets completely out of the stock market – losing millions) But turning the fund over to the state would have come with new taxes. At least by gaining revenue from parking we take some share of the money from the pockets of our suburban neighbors. 

Finally, have we kept public assets public? We haven’t privatized them, certainly, but we don’t have ready access to the revenue generated by them either. If they were public assets in the first place, I guess we have kept them as such. But there are real obstacles to seeing them as ever truly public.  

The Whole Year Inn

So the pension fund contains a tremendous hole. That hole might amount to 400 million dollars or 700 or some other number depending on who does the counting. But whatever the number is, it is large and it didn’t happen overnight. 

Let us not think in terms of dollars then, but in terms of the number of retirees relative to the number of working employees. The city’s pension fund owes benefits to over 1600 retired police, but currently there are only 800 active employees in paying in. That 2:1ratio of retirees to active employees is preserved in retired fire fighter’s fund, though it only owes benefits to 1200. Finally the municipal employee pension system is in the best shape. It has only a 1:1 ratio of current employees to retirees though it owes benefits to 1700 people.

So how did we get here?

In some sense this question assumes too much. It suggests that there was a time when we were not here and that some action pushed us over the brink and into the hole.

But it wasn’t like that. Pittsburgh’s pensions have never been adequately funded. Further, almost every effort to correct that situation has been a failure of one form or another.

In the distant past, i.e. before the 70’s, it appears that many local leaders conceived of Pittsburgh as a perpetual boom town. As such, there was little incentive to put aside adequate funds to keep pensions solvent. It seemed to be assumed that population would continue to grow and the size of city government would track that. So if not enough was put aside today, so what? Tomorrow the size of the workforce would increase and there would be even more new employees paying a pittance into the fund. True that wouldn’t cover the pensions that those employees were promised, but the current obligations were covered. Besides, the future would bring more employees and the cycle could begin again.

This is certainly short sighted leadership, since it, in effect, creates a Ponzi scheme. But it is not clear that it is short-sighted leadership of a particularly culpable sort. After all, many municipalities at the time thought to fund things this way. And, arguably, Social Security was set up on a similar model. 

Over the years the state introduced measures that helped make this situation even more untenable and seemed to launch the first calls for state assistance and state bailouts. Unions lobbied the state throughout the 40’s 50’s and 60’s for additional benefits. Typically these seemed to be benefits that they couldn’t add to existing contracts through the typical negotiation process with the City. These changed the ways union contracts were negotiated and increased pension benefits. Both directly and indirectly these increased pension costs in various ways. It is difficult to tell, but it doesn’t seem that the city was particularly proactive about ensuring that these new obligations were funded. In fact this seems to be the primary source of the attitude that much of the pension problem is the fault of Harrisburg and so it is they who should be required to contribute to the solution. 

There is a flaw in that argument however. For much of the 70’s Pittsburgh simply failed to pay into its pension fund. Pensions were allowed to dwindle in order to deal with the more pressing effects of depopulation. There is more than one culpable party here.

One of the first efforts at making the pension system whole came about in the mid 80’s with Act 205.  Act 205 made some of the first provisions for a commuter tax, but those were never triggered. Its main revenue stream was a tax on insurance policies sold by out-of-state companies.  For a time, things seemed to be going well. Although the level of funding was dismal – percentages hovering in the single digits – the fund began to show less of a shortfall each year. During these early days Pittsburgh was reaping almost 20% of the total pool of funds that Act 205 set up.  

But, ultimately Act 205 was not able to bring the pension fund back to financial health. Indeed, the failure of this bailout scheme foreshadows the failure of other efforts toward the same goal. Lobbying at the state level had left options in the act for allowing smaller municipalities to join. In some cases these newcomers were able to fully fund their own pensions through participation in the pool. As you might expect then, of those partaking of the revenue stream, it was Pittsburgh that bore the brunt of the burden to control costs. Even with state funds, the shortfall persisted. 

Of course, costs can be contained in more than one way. There are cuts and there are opportunities to raise more revenue. Without additional powers to levy taxes, and with cuts already being made, Pittsburgh pursued a program of high-risk investments designed to maximize returns and, for a time, it seemed to be enjoying moderate successes in that pursuit.

In the mid to late 90’s however it was clear that the fund was not growing fast enough and other measures would need to be taken. In response, the city started to issue Pension Bonds. Essentially this was a debt transfer from the pension fund to the city’s general fund. Those bonds were issued against the general fund while the funds realized from them went to pay down pensions. 

In some ways the opening stages course of action seems very similar to the scenario we have now seen play out. A hole was opened in the general fund on an ongoing basis in order to close a similar hole in the pension fund. We satisfied a promise, by making another promise. 

These bonds brought the pension up to the highest levels of funding it appears to have ever enjoyed. At one point the fund was almost 65% funded! However that aggressive investment strategy backfired when the internet bubble burst in the early 2000’s. At this point the pension fund was also paying out more money, more quickly than it had anticipated. Early retirement packages and other incentives to help the general fund reduce costs purchased those gains at the expense of the pensions. So at least some the debt that had been shouldered by the City’s general fund by way of the bonds was now being passed back to the pension account.  In any case, in less than ten years from the issuance of those bonds, Pittsburgh was in the same position it was before: sitting on a pension with funding levels, at best, in the high 20%’s. To add insult to injury it was also during this time that Act 205 was further amended to tie revenue availability to the number of active employees, rather than the number who are currently drawing a pension. As you might expect, for a city that had lost so many people, this measure only further eroded the support that the state was providing.

Then came Act 47 – Pennsylvania’s answer to municipal bankruptcy. At the end of ’03 Pittsburgh was declared a distressed municipality and an oversight team was created to present it with a plan for reform. Strictly speaking, this designation came about in response to the totality of Pittsburgh’s economic circumstance, not just the pension fund. Still the pension issue is the largest budget problem facing the city today. The Act 47 Team proposes 5 year budgets and has the power to withhold revenue until certain conditions are met. The silver lining to Act 47 was that the designation brought with it a new power to impose taxes. Specifically the idea of a commuter tax was revived. With it seemed the promise of finally being able to close the budget hole and stop passing it between the two accounts.

However, before the city really got a chance to flex any of this new taxation power, the Republican controlled state legislature passed Act 11. This act created the Intergovernmental Cooperation Authority. This was yet another oversight board - this one more highly politicized – that was to work alongside the Act 47 team. But Act 11 also removed the power to impose the new commuter tax for as long the new board was in existence.   

Act 11 enjoyed the strong support of suburbanites who worked in the city. There was a rather acrimonious debate over this measure. Those in the city argued that without the hospitals, universities and downtown infrastructure the suburbs simply wouldn’t be a desirable place to live. On that basis they reasoned that suburbanites should help shoulder the burden. The opposition argued that the new power amounted to ‘taxation without representation’ since suburbanites had no voice in the city. The measure passed, but the oversight board is set to expire this year. At which point, perhaps, we will get the power to tax commuters.

Finally came Act 44. This was the measure the required the pension to be funded to at least 50% by the end of last year of face takeover by the state. Incentives were included in this measure to encourage the city to privatize its parking assets- but we all know that didn’t work.

Instead, it was a dedication of parking tax that provided funding. But, once again, this came at the expense of the general fund. The debt looks to have been passed from one set of books to the other like it has many times in the past. I wait to see if this time will be any different.

Mea Culpa: Life intervened and I wasn't able to be as thorough in my research here as I would have liked. I also wasn't able to provide my usual references to the source material for all of this. Indeed, some parts of this essay are just a narration of this slide show. Those who are interested in researching this issue in more depth are urged to begin there.

An Asset You Have To Believe In

Now that all of the City’s documentation on pension funding has been sent off to Harrisburg, it seems an excellent time to examine that funding in more detail. Of course, the whole story of this funding scheme is a long one and has as much to do with political enmity as it does with crafting a reasonable solution to the problem. I’d like to address this all, but I tend to be wordy and so it is prudent to divide this labor.

Today then, let us look at the asset which was offered to cover the hole in the pension accounts.

Future posts will deal with the debt itself and the politics of the solution.

On the face of it, the scheme used to bring the underfunded pension up to a reasonable level of funding couldn’t be any less exotic. Our City Council simply dedicated a revenue stream, in this case parking revenue, to the pension account thereby closing a gap.

Dig a little deeper though and this scheme looks less and less like an asset.

Let us start with the initial impetus to fund the pension. It didn’t appear to come from any of our local leaders. The state required that our pension fund be at least 50% funded by the end of the year. While some of the pension fund’s problems can be traced back to the economic downturn and stock market losses, much of it is squarely the fault of local leadership. They chose to kick the can down the road by failing to contribute enough each year to keep the plan funded.

So, to be clear, this drastic response to the underfunded pension system doesn’t look like a spontaneous effort to set things right once and for all, it looks like a response to a potential loss of their own power. If Harrisburg found itself in the position of having to step in and shore up the pension fund, it would have levied additional taxes on the residents of Pittsburgh.

As recently as Aug 23rd Bill Peduto, in his Facebook feed, was asking for patience by pointing out that ‘[the City] did not ask to be required to pay $250 million by the end of the year’.

If I were a recipient of a City pension I might beg to differ.

So what did they do to plug the hole?

They did this. City Council dedicated parking tax revenue to the pension fund for the next 31 years. But this would leave a hole in the operating budget. However, they realized that by increasing the parking rate on City meters, lengthening enforcement hours and increasing the fines for illegal parking they could generate revenue to close that hole without admitting to raising taxes.*

But, strictly speaking, that revenue wasn’t yet theirs to promise. The funds that parking meter revenue and fines get paid into is controlled by the Pittsburgh Parking Authority. True, the Parking Authority shares revenue with the City according to the terms of a joint agreement. But, since the Parking Authority is effectively controlled by the Mayor’s office and the Mayor’s office favored another plan for bailing out the pensions, no new revenue sharing agreement was put in place to send the rewards of the fine and rate increases into the operating budget.

The fact that this scheme turned on securing a future agreement from the Parking Authority didn’t seem to slow this effort at all. Indeed I suspect that this was done as a political calculation. If the agreement from the Parking Authority wasn’t forthcoming, Council could point to the Authority and claim it was holding the City’s pension fund hostage and endangering its ability to continue under the City’s control.

Now this part is the real kicker. The state required an infusion of about 250 Million into the pension fund to ensure that it was at least 50% funded, and so in compliance with the law, to remain under the City’s control. But there was no way of getting 250 Million from parking fines and rate increases. At best those might have added up to 10 Million this year. So the City made a promise that has to be understood as binding any future City Council. The promise says that the City will use parking revenues to pay 1.3 Million into the fund this year, 2.6 Million next year and about 9.3 Million a year for each year after that. When all of that revenue is added up, it totals 735 Million, 31 years from now.

So how do you make 735 Million in 31 years add up to about 250 Million today?

By arguing that since 735 Million in revenue in 2042 will represent a funding level of 62% at that time, then the promise to do this today represents an asset that funds the pensions to a level of 62%.

I wish I could pay my mortgage this way.

Say I go into my bank and give them the following offer.

“Look I know I still owe about 80% of the debt I have with you and I know I haven’t been paying. And if things continue like this you are going to foreclose. But, hey, I have a plan to pay it. Over the next 25 years I will give you 50% of each paycheck I earn. If you do the math you will find that 50% of each check for 25 years adds up to exactly the amount of debt still outstanding. So with this promise of a plan, please call my debt paid and stop the foreclosure.”

Essentially I make good on my promise to pay, by offering another promise to pay.

But if that wasn’t bad enough, it gets worse.

The rate increases and lengthened enforcement pissed a lot of people off.

And that is no surprise: it was poorly considered and rushed through.

So now City Council announced in a letter that it is about to rescind the lengthened enforcement hours and the rate increases. The very source of the revenue needed to plug the gap is now being temporarily removed because it is politically unpopular.

Not only does the promise to pay fail to bind when it is made to our City employees – as evidenced by the fact that the fund has been chronically underfunded. But City Council’s new promise to pay doesn’t even seem to bind the current Council, much less future Councils.

And it isn’t as though these policies will get more popular any time soon. There will be, for the foreseeable future, a need to raise this revenue from the City’s parking infrastructure. This amounts to a tax on driving in the City. As such, there will continue to be pressure to roll back these increases.

Only one person on City Council seems to recognize that when you are selling someone a promise you never let the buyer see how nervous you are – Patrick Dowd.

He remarked, in response to these efforts to roll back the increases –

"We need to be committing ourselves to showing the utmost confidence" in the bailout plan… but the letter "unfortunately casts doubt."

He is right.

What is unfortunate is that the doubt his confidence aims to overcome is not personal to him. To generate confidence he has to be understood as speaking for any future Council. While I might have confidence in Dowd’s sincerity, his promise just doesn’t have the ability to bind future councilors. The doubt that most of us have stems from how the pension fund has been treated in the past. So the basis for confidence in this plan doesn’t turn on the sincerity of anyone today, but on the ability of different people to keep these commitments over the next 31 years.

When you are in the process of breaking your promise to fund the pensions of those who worked for the city, you don’t buy yourself anything by making another promise.

If retired employees can’t take the city at their word, why would Harrisburg?


Bonus question: What happens if, in five years time, council removes this revenue stream? Are we under constant threat of takeover if we tamper with the parking fund over the next 31 years?


*Correction: This paragraph has been altered to reflect the fact that parking tax revenue was being pledged to the pension fund and that the hole which was created was expected to be filled by a new revenue sharing agreement with the Parking Authority. This new agreement is expected to tap the increased fines and enforcement hours revenue to permit the Parking Authority to make a greater contribution to the City. It previously and incorrectly described the increased revenue from rates and enforcement as going directly into the pension fund.  - Thanks Bram for pointing this out.

Held to a Higher Standard............. (of Proof)

As noted in a recent post, City Council is due to consider a community drafted police accountability bill. It seeks to document various types of searches and requires more data collection. This is then to be reported in the Police Bureau’s annual report.

This bill has run into a surprising amount of opposition from the FOP and Ravenstahl’s office. Indeed this opposition has been of the worst sort. A refusal to meet with community activists and a closed-door council session to discuss the matter has meant that there has been almost no public argument made by the administration or the police which states why they oppose the bill.

Against this background, expect those who oppose these measures to point to the recent charges filed against Officer Garrett Brown –“one of the baddest of the bad apples” – as evidence that further efforts toward police accountability are not needed. 

# #

In fact, the case of Garrett Brown, and other officers charged with serious crimes, reveals an urgent need for further police accountability measures.

An analysis of cases going back almost five years reveals that, despite the most egregious conduct, and despite many cases involving a history of ongoing criminal behavior, our District Attorney’s office has failed to secure any felony conviction of a Pittsburgh Police Officer in a misconduct case! And, further, no city officer has even served so much as a day in jail for any criminal conduct! In fact, only two cases presented in the last five years have any police official serving any jail time at all. But those cases came on the heels of successful federal prosecutions, and they didn’t concern city police.

This points to some rather serious flaws in the way that oversight is conducted. But those flaws don’t just affect the Police Bureau.  The District Attorney’s office and the courts also seem to play a role in ensuring that officers evade sanction for criminal conduct.

Before we delve more deeply into the case of Officer Garrett Brown, let us review the handful of recent cases where criminal charges were filed. What is most notable about many of these is the extensive history of misconduct on the part of the accused officers. In many cases, by the time charges are filed, an officer has already been the subject of repeated investigations and exonerations into misconduct of exactly the same kind as that which forms the basis of the criminal charges. We also see less than aggressive attempts at prosecution. The DA simply doesn’t fight very hard in these cases to ensure felony convictions or jail time.

# #

Let us begin back with the case of Detective Bradley Walker. In 2010 Detective Walker was convicted of a road rage incident. During this altercation Mr. Walker, allegedly, kicked and punched the side of car that he had been involved in a minor accident with. He then pulled his gun on that motorist and pointed it at him before smashing the man’s window to choke him.

Surprisingly, Mr. Walker was not convicted of any felony charges. The judge, Anthony M. Mariani, threw out aggravated assault charges and only sentenced Mr. Walker to probation for the incident. He did however lose his job with the Police Bureau.

Was there any indication in Mr. Walker’s past that he might be too violent and aggressive for police work?

Absolutely!

 In 1999 Mr. Walker was the subject of a complaint which alleges that,

“He terrorized a motorist, waved a gun, bullied and said he was the police and to get out of the car,” 

Further, in 2007 he entered into a plea bargain on a domestic violence charge. He allegedly punched his wife and choked his son. The District Attorney’s office let this man walk and allowed him to keep his job by offering to withdraw the domestic violence charge if Mr. Walker completed a course in anger management. Those actions kept Mr. Walker on the police force for another 3 years.

That same year he was also internally disciplined for assaulting another officer who accidently shocked Mr. Walker with his Taser.

This man’s history reveals a troubling amount of rage and an inability to control violent impulses. It is no surprise that this behavior culminated in an incident of road rage and choking – precisely those behaviors that had already been well-documented. However, the DA’s office seems to prefer to let someone with these tendencies evade felony charges. In fact, our DA didn't file charges against him, the State did. And even they failed to make the felony charges stick. Mr. Walker has not served a single day in jail for any of these incidents since Judge Mariani decided that 4 years probation was sufficient punishment for this conduct.

But Walker’s case is no anomaly.

# #

Lets next examine the cases of Patrick Moffat and Joseph Simunovich. These two got into an altercation with police from Brookline during a Toby Keith concert. (Yes, that Toby Keith concert.) They allegedly disparaged the Brookline Police Force and told officers working that concert that they didn’t have to respect their authority. When a scuffle broke out, Moffat and Simunovich were arrested, as was Moffatt’s sister who tried to take the service weapon of one of the Brookline officers.

Despite the felony charges being filed at the time, both Detectives were released on their own recognizance. If convicted they faced the possibility of losing their jobs.

But, of course, those charges never materialized and the now demoted officers were allowed to plead guilty to disorderly conduct, pay less than $500 in fines, and retain their jobs as Pittsburgh Police Detectives.  In one final twist, all parties agreed to sign confidentiality agreements which effectively prohibit anyone involved in the case from speaking about it. I guess the DA’s office thinks that the justice it dishes out doesn’t need to be subject to public scrutiny.

The fact that one of them was the son of Allegheny County Police Superintendent Charles Moffatt had nothing to do with this, I am sure.

To be fair, Moffat and Simunovich’s case is one of the least egregious. Neither Detective seemed to have a history of this sort of thing and neither have made headlines since.

Still those two appear to be part of a pattern of soft-ball prosecution.

# #

Consider the, now well-known, case of Eugne Hlavac. In 2009 Sgt. Hlavac became the test case for the Bureau’s new zero-tolerance policy on domestic violence. But this is his second involvement with the policy. His promotion in 2007, despite two previous domestic violence incidents, also made him the inspiration for the Bureau’s zero-tolerance policy.

This case garnered so much attention in the past that little needs to be added here. In 2007, after police had been called to Mr. Hlavac’s residence for a domestic dispute, Hlavac’s supervisor recommended that he undergo anger management and have limited contact with the public. The recommendation that he be removed from contact with the public was ignored and three months later he was promoted to Sergeant – prompting an outcry from women’s groups.

Three of the other officers involved in that round of promotions also had domestic violence issues in their past and the subsequent complaints lead to the formation of the Bureau’s zero-tolerance policy. 

In 2009, Hlavac was charged with felony domestic-violence for dislocating his ex-girlfriend’s jaw – a woman 20 years his junior. However, Judge Nathan Firestone reduced those charges to a misdemeanor. And he was later found not-guilty.

It is also worth noting that the CPRB thought that a complaint filed in 2006, which charged Hlavac with endangering public safety by driving his car through a group of free-ride bicyclists, contained enough credibility that he should be disciplined.

Again, many serious complaints alleging criminal conduct result in no jail time and no felony convictions.

# #

To see further evidence of this pattern of easy-going judges and soft-ball prosecutions look not further than the cases of Officers Anthony Scarpine and Ken Simon.

Simon, it is alleged, lied in his police report to support the arrest of two suspects on drug charges. He claimed to see the two meet and pass drugs between them. However, video tape of the incident doesn’t support that. Neither of the suspects has any contact with each other and indeed arrived at the location 25mins apart.

Scarpine already had a complaint upheld against him for a previous false arrest. In that incident he claims to have seen a suspect assault a witness in a trial. However, video evidence contradicted his claims and revealed that he wasn’t even present to witness the event.

But, despite the fact that both officers were charged with felonies,and despite Scarpine's history of being contradicted by videotape, Judge James Hanley threw out the charges against him. Further, even though Simon was also alleged to have stolen money from one of the suspects arrested, he had his charges reduced to misdemeanors. 

No verdict has been made in this case yet. But even if the prosecution wins on all counts, there will be no felony conviction and, judging from similar cases, there will be no jail time either. 

# #

Then, there is the case of Paul Abel. This one has garnered a huge amount of attention and scrutiny. Some allege that the prosecution performed deliberately shoddy work so that this officer could escape punishment.

Paul Abel was drunk and off-duty celebrating his wife’s birthday on the Southside. While driving home, he was punched through his open car window by one of two assailants who then ran off into the night.

Abel, then decided to go looking for them. He found a man, who witnesses say was not wearing the same clothes as his attacker, and proceeded to assault ‘make an arrest’ – though, how a drunken take-down of an innocent man by someone who fails to identify himself as a police officer qualifies as an ‘arrest’, I will never know.

In the course of this ‘arrest’ Abel pistol-whipped the innocent man and then accidently discharged his firearm striking him in the hand.  (Just so we are clear, even Chief Harper calls the victim 'innocent'.) When real uniformed police officers arrived on the scene, they took Abel back to the station. They then waited over three hours to administer an alcohol test. PA law stipulates that, unless the prosecution presents reason that it should not be, a test may be discarded after a delay of two-hours. This move virtually ensured that Abel would beat the drunk driving charge. His BAL was .111 even many hours after the incident.

So did the prosecution give reason to use the evidence from the delayed alcohol test? It seems not. Critics of the prosecution’s efforts claim that they offered no challenge to seeing the drunk driving charge thrown out. This would have been the easiest charge to prove since witnesses saw him driving and the BAL was so far over the legal limit. If these critics are right, it was lax prosecution that allowed the evasion of this charge.

They also allege that the prosecution failed to demonstrate how difficult it is to accidently discharge a Glock pistol. They argue that the multiple safety features of this weapon make it likely that the only way it could have accidentally discharged was through reckless conduct.

Abel walked away from his criminal trial with no convictions.

He has a long history of overly aggressive and plain criminal conduct.  His own wife alleges that he pressured her to make false claims against her children’s grand-parents. She claims that Abel wanted her to report that the grandparents sexually abused the children to thwart a custody request.  

Abel is further alleged to have started a fist-fight inside the County Courthouse, bragged about ‘knocking the shit out of people’ on his myspace page and generally being an aggressive and out-of-control menace. But, he still wears the uniform of a Pittsburgh Police Officer.

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It is also useful to recall the case of Talib Ghafoor. This former Pittsburgh Police officer was recently charged with running a prostitution ring. However, before that, he was caught committing perjury. Indeed, the evidence that he perjured himself came from recordings made at the jail which contradicted his claim, under oath, that he did not have contact with two defendants in a murder trial. Ghafoor resigned from the Pittsburgh Police under a cloud of suspicion. That seems to have been enough for our DA since he then failed to file perjury charges, despite evidence solid enough to force the resignation.

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So now we have felony charges filed against Officer Garrett Brown. Officer Brown, you may recall, was the off-duty officer who forced a truck driver off to the side of the road in the wee hours of the morning last year and twisted his arm while throwing him against the vehicle. When uniformed police arrived they allowed the motorist to leave and he subsequently sued the City of Pittsburgh and received a 150K settlement for his efforts. That case seems to have been ignored both by OMI and the DA’s office.

However, later that year Officer Brown seems to have suffered another incident of road rage. The City Paper reports that he deliberately backed his car into a delivery truck that had cut him off earlier and then exited his vehicle and challenged the delivery driver and his passenger to a fight. When they refused to exit their vehicle and called 911 to report the incident, Brown continued to follow them and had uniformed police officers charge them with hit and run when they stopped to make the next delivery. Brown, of course, denies all criminal conduct and claims he was struck by the delivery vehicle.

However, OMI found that the story told by the delivery driver to be the most credible.  Apparently his insurance company has also obtained evidence indicating that Brown’s car had backed into the truck causing the accident.

Officer Brown faces felony charges for insurance fraud and theft by deception.

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In all of the research I did spanning the last five years I could only locate one case of misconduct that was successfully prosecuted and resulted in jail time. A federal investigation into Chief Frank Diener of the West Mifflin Police Department revealed that he stole government property, built an unaccountable slush fund, and was in possession, with intent to distribute, of both cocaine and marijuana that had been stolen from the evidence room. The DA’s conviction, in that case, came after both federal and state prosecutions and didn’t result in any increase in jail time. In fact, for all of these crimes the former chief was only sentenced to a year and a day.

As part of that investigation into misconduct at the West Mifflin PD, it was revealed that Officer Missig assaulted a juvenile suspect and lied to obtain a search warrant. This case was sucessfuly prosecuted and resulted in jail time. However, Missig was only sentenced to 6-12 months for these offenses, and he served only 3.

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This much should be obvious, but it bears repeating. A practice of treating police with kid gloves is incredibly corrosive to the public trust. Indeed, it should be recognized that almost every case of police misconduct is a violation of someone’s constitutional rights. If an officer lies to get a search warrant, the fourth amendment is violated. An unjustified use of force violates one’s right to suffer no punishment without due process of law. This country, for reasons I can’t really fathom, has chosen to build one of the most extensive and dehumanizing systems of incarceration that the world has ever seen. Let us remind ourselves that our country incarcerates more people per capita than any other country ever has. We lock up a greater percentage of our population than the Soviets did during the gulag and they had the whole of Siberia to send people to.

For this system of incarceration to be a system of justice, it must work impartially. And the evidence presented here makes it look exceptionally partial. Indeed, I would wager that if those who administer this system were subject to its full force, it wouldn’t be able to continue. Too many powerful and compelling voices would speak out against it and highlight its unfairness and draconian consequences.

Also troubling is the fact that this problem is just not the sort of thing that the legislation currently being considered is designed to combat. Too often efforts at police accountability are split along race lines. But the issues are linked. Those who allow conduct to slide because it happens in minority communities help build a culture that refuses to take rights and the law seriously. 

But, legislation and citizen action can address this problem. Pittsburgh needs a more transparent and proactive system for investigating and disciplining officers. There are some very minor changes that could be made today that would go a long way toward achieving this.

First, make the Bureau’s Police Policy Manual public. Our police have resisted doing this for years citing concerns about officer safety. Indeed, they won’t even share this document with City Council which is why the recent session debating Bill 234 had to be closed to the public. This is ridiculous. There is already a precedent for making this information public. Denver, Minneapolis, Seattle and Cincinnati among others make these documents available. They recognize, as Pittsburgh has not, that one cannot exercise civilian control over a police force if the public is unable to see the policies that are in place. This wouldn’t even require a majority vote of council. If an intrepid and bold councilor were willing, the document could be subpoenaed and put into the public record.

Second, stop treating officer discipline as an internal personnel matter. It must be acknowledged that misconduct is a violation of a citizen’s rights. We cannot hope to be a people that take rights seriously unless we acknowledge that a violation of one person’s rights is not a closed matter between that person and the transgressor. A violation of some person’s rights is a public matter because it is only by creating an environment where rights are respected that any single person can make a claim to have his rights upheld. By making internal discipline secret we have essentially set up a parallel system of secret justice where unknown rules and principles dictate what punishments are to be meted out for a violation of duty to the public. This is no way to secure public trust because in the absence of scrutiny and transparency there can be no basis for this trust. Indeed, if it is true, as some of these cases seem to suggest, that the DA’s office will sometimes not file charges because discipline has already been handled internally, this means that a substantial portion of the law is secret. The average citizen is in no position to see justice being done in cases involving police because those matters are resolved in behind closed doors and even the rules and procedures are opaque. This step could be accomplished in a variety of ways. Council might refuse to ratify contracts that treat internal discipline as a non-public matter. Alternately, we might empower the Citizen’s Police Review Board in such a way that it can review officer discipline, make binding recommendations, and disseminate that information to the public.

Third, we can stop defending egregious conduct in the civil trials that inevitably follow this kind of misconduct. Chicago already does this. If police knew that behavior which shocks the conscience would result in personal financial accountability, especially when that behavior occured off-duty, it is my belief that many would think twice before allowing their emotions to get the better of them.

Other changes to address this problem probably need to be made by altering the attitude of the citizenry. It is no secret that the voting block of the police union has significant power in determining elections for Judges and District Attorney. Many people pay very little attention to the election of judges – most of which are determined in the primaries. But not everyone is so apathetic. Judges and the District Attorney know who they must please if they are to be reelected – it’s the police union. Only an engaged and informed citizenry who see even the justice system as ultimately answerable to them can exert the influence at the polls needed to alter the status quo. Further, an engaged citizenry is one that contacts and questions its public officials. If you don’t contact the Mayor’s office, Council offices, the DA and Judges and tell them what you think of their performance there will be very little pressure for them to see that your concerns are being responded to.

 The flaws in American justice are more extensive that those pointed to in this discussion of Pittsburgh. But local politics is one place where voters can make the greatest impact. We can only do this by demanding a transparent and equal system of justice for everyone. Current efforts are a step in the right direction, but much more needs to be done.

The work that needs to be done begins with building an engaged citizenry that demands to be heard and demands to scrutinize the work of those who work for us. But when things are stated that way I wonder if, collectively, we are up for that challenge.  

It is Only Certain Kinds of Pollution That Don't Belong in Cemeteries

One of the latest fronts to open in the ongoing fight against Shale Gas drilling concerns drilling leases sold by various cemeteries in the area. Just this week the issue has garnered an article from the Post Gazette as well as an editorial. I have seen both of these pieces making their way around social networking where the very thought of drilling in cemeteries is invariably condemned.

This condemnation can't make use of all of the usual talking points against Shale Gas, however. Many of the arguments just don't apply. Cemetery land doesn't usually contain wells for drinking water or crops that may be polluted by run off. Of course, the usual points about surrounding properties and fracking fluid are still live.

Since some of those talking points are impotent, opponents have adopted a different tack. They stress a moral opposition to drilling on cemetery land. County Council Vice President Charles Martoni calls the area "sacred ground" and the PG editorial stresses the "quiet, green and peaceful" nature of the cemetery and calls it 'hallowed'. Finally the executive director of Catholic Cemeteries Association in the Pittsburgh Diocese goes so far as to say "We would never allow any activity within the cemetery properties that compromises our mission or the sacred nature of the Catholic cemetery."

From these descriptions you would think that the maintenance of such sacred space is already scrupulously performed with an eye to honoring the land by maintaining its pristine character.

You would be wrong!

The fact is that at least one of the cemeteries, right here in the city, is already terribly polluted. Allegheny Cemetery has created a landfill that can be seen from space. What you are looking at in that picture is a pile of trash and dirt about 300 feet across sitting directly on a creek bed that goes on to drain into the Allegheny. This pile of garbage is over ten feet high in some places and contains not only remnants of the decorative items that had been placed on graves, but also: electronics, tires, household waste, clothes, food and plastic of all kinds. Indeed this garbage pit is just 100 yards down a road from the municipal garden plots that sit on Stanton Ave. No effort is even made to section this area off or mark it as 'No Trespassing': one just walks down the hill from his garden plot and finds himself standing knee deep in waste.

Where is an activist when you need one?

Now, fair enough, this pile isn't found right at the front gate. Still, it sits right on a waterway that dumps into the Allegheny. Further, this sort of thing is not standard cemetery practice. Arial views of Homewood and Calvary Cemeteries reveal areas for dumping displaced dirt from burials, but you don't see anywhere near this level of debris and waste in them. 

Now surely this kind of thing violates all kinds of laws against dumping. And if, for some strange exemption, it doesn't, it certainly should. 

But I think the more important thing about the state of this cemetery is that it shows the arguments that drilling activist have been using are only being used rhetorically. No one is really interested in making sure cemeteries are clean, because if they were, they would be focused on the very real state of this trash heap rather than sending press releases filled with speculative concerns about future drilling that may never happen. The moral argument that was used above is just as powerful against this style of pollution as it is against gas drilling. This does just as much to destroy the verdant and reverential place that we build for the dead as would a horizontal well. 

This practice has clearly gone on for quite some time. I cannot have been the first person in Pittsburgh to come across it or even complain about it. A pile of garbage over ten feet tall didn't just appear overnight. But, the fact is that this particular variety of pollution doesn't fit into a narrative that powerful people are making use of at the moment and so it is certain that nothing will be done about it.

From a political standpoint there is nothing to be gained by trying to get this area cleaned up. It would make life more pleasant for the few that walk dogs and hike through the cemetery and it would burden the cemetery itself with a hefty clean-up and so make a political enemy. The moral argument, it seems, only gains traction when it suits the agenda of those who employ it.

 If only we could amend the city charter.

So do activist groups really recognize the cemetery as sacred space? Then, please, do something to address this desecration of it. But, the cynic in me suspects that a different kind of recognition took place. Activists recognized a chance to goad a few knee jerk reactions and took it. 

When moral questions are reduced to mere conflicting positions the right answer is just the one that wins the conflict. 

4 Deaths on Washington Blvd: An Avoidable Tragedy.

I have avoided commenting on the deaths in Highland park because it just felt positively unseemly to speculate about causes and culpability in the face of something so concrete. My heart goes out to the victims and all who knew and loved them.

In the coming days and weeks we may learn more about what was or wasn't done and how more could be done in future. However, I was in the East End for the flooding in July and it was clear then that when Washington Blvd became impassable the rest of the area was thrown into chaos. No police directed traffic at the major intersections that lost power, no real detours seemed to be in place to handle the disrupted traffic flow. In short, the city didn't seem to have any plan at all!

Having seen that, and now seeing how dire the consequences of having no plan can be, I can't help but agree with the sentiment expressed at WWVB - just close the road at times like this.