Title
September 11, 2011
To The President and Members of
The Council of the City of Philadelphia:
For the following reasons, I am returning herewith to your Honorable Body as disapproved Bill No. 120489, which was passed by Council at its session on June 21, 2011.
Bill No. 120489 would impose a four dollar surcharge on all parking tickets. It would direct that half of the revenue from the surcharge be used by the City for maintenance of recreation facilities and half be directed to the Philadelphia Parking Authority for taxicab regulation.
The City Solicitor has provided an opinion advising that although Council has clear authority to set the level of fines for parking violations, including the level of any surcharges, state law and the City Charter govern the manner in which the revenue generated from those fines and surcharges is distributed. The opinion explains that there are two separate reasons - one based in state law, the other based in the Home Rule Charter - that the bill's provisions governing the distribution of revenue from the surcharge are invalid. A copy of the Solicitor's Opinion, which sets forth a detailed analysis of the issues, is attached for your reference.
In summary, the opinion states that the bill violates state law because state law provides a very clear formula for the distribution of revenue generated by the City's on-street parking system (which comes largely from metered parking and parking enforcement fines). This basic formula was recently readopted by the General Assembly in HB 254, which was signed into law by the Governor as Act 84 on July 2, 2012. Under that formula, the City receives a base amount; amounts above the base amount must be transferred directly to the School District of Philadelphia. In recent years, parking revenues have exceeded the base amount by several million dollars per year. Therefore, any additional revenue that flows from the system of on-street parking regulation must be transferred to the School District and the City does not have the authority to re-direct such revenue for the maintenance of City recreation facilities or to the Parking Authority for taxicab enforcement. I note that, apart from this legal reality, I support the provision to the District of parking enforcement revenue in excess of the revenue guaranteed the City, particularly given the severe financial limitations the District continues to face.
The bill also, separately, violates the City Charter because, even if any of the revenues from the surcharge did belong to the City, and not the School District, Council cannot direct that such revenue be spent in any particular manner, such as for transfer to the Parking Authority for taxicab regulation or for use by the City for recreation facilities. Determinations regarding how City revenue funds are spent are within the exclusive prerogative of the Administrative and Executive Branch of government, subject to appropriations made by Council pursuant to the terms and limitations of the Charter. The Solicitor has advised that pursuant to those terms and limitations, Council cannot direct that this particular revenue source be spent on recreation facilities or provided to the Parking Authority for taxicab regulation.
Moreover, the bill has a provision which says that if any one part of the bill is determined to be unlawful, the intent of Council is that it would not have wanted to pass the bill at all. Under this clear expression of Council's intent, the invalidity of the bill for just one reason would cause the entire bill to be null and void. Therefore, each of the two separate problems regarding direction of use of the surcharge revenue, combined with Council's express determination that the bill should be deemed non-severable, causes the bill to be invalid and ineffective in its entirety.
I am aware that counsel for the Parking Authority has articulated an argument, at least with respect to the first of these legal infirmities, in support of the Parking Authority's view that the distribution of the surcharge authorized in the bill is authorized by law. I am advised by the Law Department, however, that this argument is without merit and that the surcharge imposed by the bill should be considered null and void.
In my view, the government should not be proposing a fine or surcharge in any situation where doing so is clearly unlawful. Enforcement of an unlawful surcharge would do a disservice to the members of the public who are unfairly charged and ultimately does a disservice to government, which loses credibility and legitimacy when it acts outside of the law. Invalid surcharges can of course be remedied by a lawsuit seeking to refund the money charged. But we should not put the public in the position of having to resort to a lawsuit to remedy such a clear inequity.
I recognize the desire of many to see an increase in funding for the Parks and Recreation Department, particular for facility maintenance. During the past several years, when we have been faced with severe financial constraints, we have not been able to invest as much as I would like in our Parks and Recreation system. Our capital budget for the current fiscal year, however, includes $9.5 million of new funding for recreation facilities. Moreover, our operating budget includes an additional $735,000 for personnel to work on basic facility maintenance. These personnel will focus this year on Fire and Police facilities. If this new program proves successful, we will explore ways to expand the program to other areas, like Parks and Recreation facilities. Consideration of expanding the program will take place in the context of the Fiscal Year 2014 budget.
With respect to revenue for taxicab enforcement, I am not particularly in favor of raising money for the regulation of taxis by adding a surcharge onto parking violations for drivers in the City; there is no correlation between parking in the City and the desire for greater taxicab enforcement. The cost of regulation of taxicabs should be built into the price of using taxicabs or should come from a funding source established by the Commonwealth, which controls the regulation of taxicabs and limousines in the City.
For the foregoing reasons I am returning to you disapproved Bill No. 120489.
Respectfully,
Michael A. Nutter,
Mayor
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