Title
January 25, 2005
To the President and the Members of
The Council of the City of Philadelphia:
I am returning herewith without my signature Bill 040113-AA, entitled “An Ordinance Amending Chapter 10-800 of the Philadelphia Code, entitled “Safety” by adding a new Section 10-832 entitled “Firearms Tracing” to require that the City of Philadelphia Police Department conduct traces of firearms illegally possessed by anyone under 21 years of age; all under certain terms and conditions.”
Bill 040113-AA is admirable in its purpose of seeking to reduce the scourges of too many guns on our streets and too much resulting violence. However, the bill has two independent legal problems that prevent me from signing it. Nonetheless, there is nothing in this correspondence which precludes the Police Department from voluntarily embarking on a firearm tracing program as set forth in the bill. In fact, the Police Department currently performs firearm traces where appropriate on illegally possessed weapons, and I am directing the Managing Director and Police Commissioner to continue that tracing policy as often as is reasonable and necessary.
The first problem with Bill 040113-AA is that the title of the bill legally deficient. As introduced, the bill only required the Police Department to determine the source of any illegal firearms recovered from persons under 21 years of age. The bill was amended on the floor, however, to expand the ordinance substantially, by requiring the Police Department to determine the source of any illegal firearm recovered from anyone, regardless of age. I do not believe this more expansive scope of the bill can fairly be said to have been adequately noticed in the title.
The Home Rule Charter provides that “[e]very ordinance, except annual budget ordinances and general codifications and revisions of City ordinances, shall contain not more than one subject which shall be clearly and adequately expressed in its title.” See Section 2-201(1) of the Charter. Pennsylvania case law has established that the title of a bill is deficient if it can be said that the title on its face is such that no reasonable person would have been on notice as to the bill’s contents. Such is the case here. No reasonable person would assume that a bill that purports to require traces with respect to firearms possessed by persons under 21 would turn out to require traces with respect to firearms possessed by persons over 21. This defective title alone would provide me with enough basis to not sign this legislation. However, there is a separate reason why Bill 040113-AA is invalid and unenforceable.
The bill imposes a mandatory duty on the Police Commissioner regarding the conduct of criminal investigations. The Home Rule Charter, however, clearly vests in the Police Department, and not in Council, the power to determine how to allocate Department resources. See Charter Section 5-200 (assigning to the Police Department law enforcement responsibility). As the Solicitor has determined previously, if an area of work is clearly within the ambit of the executive branch, Council does not have the power to direct how that work is carried out. See Opinion of Solicitor Diaz to Mayor Street (March 19, 2003) (Council does not have the power to regulate the conduct of MBEC or of City contracting decisions).
Moreover, Council generally cannot direct the Administration how to spend money appropriated to City operating departments. The Charter, most specifically its “lump sum” budgeting provisions (section 2-30) and section 8-102 (which allows the Mayor to impound department appropriations if he decides such appropriations should not be spent), prohibits Council from directing the Administration as to how agencies will spend appropriated funds.
Thus, it is entirely within the discretion of the Police Commissioner, subject to the supervision of the Managing Director and ultimately the Mayor, to determine how best to combat the scourge of illegal firearms on our streets and, in particular, how and whether to spend resources on traces. At the same time, it is outside City Council’s power to direct the Police Commissioner in this regard, and the ordinance, therefore, is unenforceable.
It is critical to note, however, that nothing in this opinion should preclude the Police Commissioner, of his own discretion or at my direction, from implementing firearm traces as called for by this bill. Bill 040113-AA calls upon the Commissioner to establish a “registry of all information” gathered in the required traces. The Solicitor’s Office has researched to determine whether the establishment of such a registry is prohibited by State law, and concluded that the City is not preempted from establishing such a registry. At my direction, the Police Department will continue to conduct such traces where it deems them appropriate in its continuing efforts to reduce the unacceptable number of firearms on the streets of Philadelphia.
For the reasons stated herein, I am returning Bill 040113-AA unsigned to City Council.
Respectfully submitted,
John F. Street, Esq.
Mayor
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