Legal News

Judge Rejects Standing of Challenger to City Takeover of BRT, But Says Move Is Usurping City Council's Powers

By Brian Harris

By Amaris Elliott-Engel
Of the Legal Staff

In an opinion denying standing for a Board of Revision of Taxes employee seeking to block the transfer of authority away from the BRT to the executive branch of city government, a Philadelphia Common Pleas judge called "disingenuous and unpersuasive" the city's arguments that a transfer of authority without approval first by City Council and the voters in a municipal referendum was a legal cooperative arrangement between the executive branch and the BRT.

Judge Gary F. DiVito  rejected the employee's challenge to the move on standing grounds, and because the lawsuit is premature. The opinion is dated Feb. 16.

But DiVito also said pointedly in his four-page opinion that a memorandum of understanding reached in October between the Nutter administration, the city finance director and the BRT only "purported to be within the ambit " of the Home Rule Charter. The agreement allowed for the executive branch appointment of an interim executive director to take over the BRT's assessment functions, while the BRT would retain authority over appeals of real estate valuations, DiVito wrote.

In a memorandum of law, the city defended the legality of its actions. "That the new executive director happens to be the Mayor's finance director, instead of a direct employee of the Board, is of no legal moment and suggests no abandonment of the Boards' assessment function," the memorandum said.

But DiVito said in dicta the memo was a "major carving out and transfer of the board's functions to the mayor's office" and an ?usurpation of the exclusive powers of City Council."

Approval for the changes to the BRT appears to be happening only in the wake of the agreement to make those changes. City Council passed a bill in December to abolish the BRT. And the voters would be asked to approve the changes to the BRT in a referendum in the May election.

DiVito said BRT employee Donna Aument, a ward leader in lower Northeast Philadelphia's 33rd Ward, lacked standing to seek an injunction blocking the transfer of the BRT authority until the changes are approved by voters in a referendum.

DiVito also said Aument's lawsuit is premature because there has been no notice of intent to terminate her employment. BRT employees must take a civil service exam to continue their employment at the BRT, and the results of the exam are to be finalized this month.

"We're glad that the court has identified the issues appropriately and the decision will allow an important transition to go forward as planned and we're happy about that," City Solicitor Shelley Smith said.

Aument's attorney, Samuel C. Stretton, said that the judge's dicta on the legality of the transfer of power vindicated Aument's position.

Richard Negrin is the interim executive director of the Board of Revision of Taxes. The BRT, under its previous leadership, had come under fire because of many problems in the assessment of taxes.

Full post as published by The Legal Intelligencer Blog on March 01, 2010 (boomark / email).