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Committee of Seventy
Expanded Testimony on the Mayor’s Proposal to Increase the Number of
Exempt Deputies in City Departments
Bill No. 080008 and Resolution No. 080040
Philadelphia City Council
Committee on Law and Government
February 19, 2008
The Philadelphia Home Rule Charter allows each department head two deputies exempt from civil service, meaning a commissioner may choose his or her deputies from outside the City workforce; they need not rise through civil service ranks.[1] Deputies form the top echelon of a commissioner’s leadership team and are responsible for implementing departmental policies. Deputies also assume the power of a department head in his or her absence and can be appointed interim-commissioner if there is a vacancy.[2]
The two deputy limit was included in the 1951 Charter to protect the fragile civil service system by serving as a check on the rampant political patronage that plagued City government in the decades leading up to reform.[3] While making civil service hiring the rule,[4] the Charter drafters realized that certain exemptions were “necessary for effective municipal administration.”[5]
As the size and responsibilities of local government have grown, the two exempt deputy limit has been increasingly criticized for crippling the ability of City managers to effectively run their departments. It has become common practice to “work-around” the Charter’s structural restriction by attaching “deputy commissioners” to the Managing Director’s Office, where they are exempt from civil service hiring and promotion rules, and assigning them to various City departments. However, even this work-around has limited value.
During the summer and fall of 2006, Seventy interviewed former and then top-level City officials to develop recommendations for improving local government. Nearly all interviewees cited increasing the two exempt deputy limit as a top priority for creating a more flexible and modern government. This restriction handicaps a commissioner’s ability to implement programs from the top down, and makes it unnecessarily difficult to instill his or her leadership philosophy. Furthermore, the inability to hire a trusted management team, or to remove those who are unwilling or unable to carry out the commissioner’s policies, is also a barrier to the recruitment and retention of high-level managers from around the country.
All types of organizations, both in and out of government, permit the top executive the authority to hire and fire his or her deputies or high-level managers. For example, Andy Reid has the authority, and the responsibility, to fill about twenty assistant coach positions, and that’s for a 66 man active roster. Accountability for the success or failure of an organization falls on its leadership; efficiency and effectiveness improve when the boss has the flexibility to bring with him or her an inner-circle of trusted deputies, and the flexibility to remove them if they fail.
Criticism of Philadelphia’s two deputy limit is not a new phenomenon. In fact, arguments in favor of lifting the restriction are decades old.[6]
Former Police Commissioners are among the most vocal critics of this rule. Kevin Tucker, John Timoney and Sylvester Johnson all disliked the restriction.[7] Even FOP leadership agrees that having more than two exempt deputies in the Police Department makes sense.[8]
In response to the City’s crime emergency, earlier this year the Committee of Seventy made four recommendations intended to help Police Commissioner Ramsey have the greatest possible freedom to smartly manage officers selected from the largest possible pool of talent. We first suggested eliminating the two deputy limit in the Police Department and allowing the Commissioner to appoint one deputy to head each bureau, plus a handful of additional top commanders. A second recommendation was to eliminate the one year pre-hiring residency requirement for police recruits. The Civil Service Commission recently waived that requirement for officer candidates, and thankfully Councilman Jim Kenney has reintroduced a bill which would eliminate the one year pre-residency requirement permanently and across the board.[9]
The final two Police recommendations, which are not yet under consideration by City Council, would give the Police Commissioner more promotion and demotion authority over mid-level commanders, and would expand the number of candidates the Commissioner may consider when making hiring and promotion decisions.
While Seventy fully supports increasing the number of exempt deputies in City departments, the Mayor’s proposal giving the Administrative Board unchecked power to do so is too imprecise and runs counter to the spirit of the Charter. The Administrative Board is comprised of the Mayor, the Managing Director and the Finance Director.[10] Its primary purpose is to “determine the policy to govern administrative details of the City government.”[11] Although it is not wildly unreasonable for the Administrative Board to determine the number of exempt deputies in each department – indeed, its members are the chief executives of the government – this proposal is particularly dangerous because it does not provide any limitation on, or guideline for, the number of deputies exempt from civil service. In other words, it allows too much room for abuse.
Granting the Administrative Board this power causes us some concern. First, without an upper limit, the Mayor could be tempted to unnecessarily bloat the ranks of upper management. A second and related concern is that while a particular Mayor or Ad Board could be trusted to judiciously expand the number of exempt deputies in various departments, administrations and personalities come and go, while this provision would remain. As with all Charter changes, we must remember this amendment will apply to future administrations; it is important to remain objective. Third, it is unclear how open Ad Board meetings really are to the public and how well they are advertised.
Now, as in the past, Seventy suggests using an objective formula to determine the number of exempt deputies in a department. In 1990 we maintained that the number of exempt deputies could be tied to the number of employees or the size of the department’s budget. An objective formula provides a reasonable rule but also permits some flexibility.
The formula we proposed for the Police Department ties the number of exempt deputies to the number of bureaus (12), and allows for a few extra top deputies (3-4). Expanded beyond the Police Department, this formula is valuable because it is sensitive to each department’s particular structure, which is derived from the nature of each department’s work.
Bureaus (or divisions in departments other than Police) are the first major sub-units within a department. Bureaus (or divisions) are responsible for a particular function or subject area within a department’s mandate, such as internal affairs, narcotics or patrol. While department heads are permitted the flexibility to establish new bureaus or divisions with Ad Board approval, our proposal is more organic and transparent than the Mayor’s. For instance, each department’s organizational chart should be available on its website. Under our proposal, the public, and City employees, will always know how many exemptions there are and where the deputies are placed. Now, taking advantage of work-arounds, deputy managing directors serving as deputy commissioners are placed all over City government and it is difficult to track their number and functions. Essentially, our proposal provides a rule, whereas the Mayor’s proposal does not.
Furthermore, sometimes a commissioner is stuck with a poorly-performing civil service deputy at the top of a division. While not usually the case, this civil service deputy might be either incapable or unwilling to implement the commissioner’s policy but because of civil service protections, the commissioner is unable to remove the individual. Permitting the commissioner to choose his or her bureau/division heads would eliminate this potential and improves the chances that policy will flow more effectively from the top down.
Our proposal works for all City departments. According the City’s website there are four divisions in the Records Department. Permitting the Records Commissioner to appoint one deputy to manage each division, plus an additional one or two to serve as top deputies, is a rational improvement over the Charter’s current limitation. Under our proposal, L&I would get four division deputies, the Streets Department would get nine division deputies, and the Water Department would get seven. As with Police, these department heads should also be permitted an additional few deputies to serve in their immediate circle.
Our approach will enable a commissioner to choose deputies whom he or she believes have the demonstrated management experience and leadership ability to head each division or bureau. It will further guarantee that division or bureau heads will be loyal to the commissioner and his or her agenda, thereby improving the chances that orders are carried out effectively.
A commissioner could be tempted to create additional and arguably unnecessary divisions or bureaus to manufacture new deputy positions. To prevent this, City Council might consider including in the legislation a provision mandating that the number of exempt deputies cannot be more than a designated percentage of the size of the department or City workforce.[12]
Furthermore, by establishing an official number of appointed deputies per department – and removing the need for back-door “work-arounds” - the appointment process actually becomes more transparent and less susceptible to patronage.
To reiterate, Seventy supports increasing the number of exempt deputies beyond two in each department and in the Police Department particularly. However, instead of permitting the Ad Board unfettered discretion to increase the number, Seventy suggests the amendment incorporate some guideline or objective formula dictating how the number is chosen. One method is to tie the number of exempt deputies to the number of bureaus or divisions in a department, and allow for a few additional top deputies immediately responsible to the commissioner.
[1] See Philadelphia Home Rule Charter § 7-301(b).
[2] See Philadelphia Home Rule Charter § 3-701.
[3] See The Committee of Seventy, The Charter: A History 33 (1980).
[4] “Exempted employment is carefully limited so that it shall not serve as an avenue for evading the civil service requirements of the Charter.” Philadelphia Home Rule Charter § 7-301 annotation 3.
[5] Philadelphia Home Rule Charter § 7-301 annotation 2.
[6] See , e.g., The Committee of Seventy, Personnel Practices Governance Study 47 (1986). In 1994, the Independent Charter Commission recommended adjusting the number of exempt deputies according to the number of employees in each department. This Commission, which was appointed by former Mayor Edward G. Rendell and then-Council President John F. Street, proposed a package of 62 amendments to the Philadelphia Home Rule Charter. The package was overwhelmingly rejected by the voters in May 1994 following a vigorous anti-Charter change campaign by labor unions and community organizations.
[7] See Andrew Maykuth, Johnson Sees “Terrible Flaw” in Force, Phila. Inquirer, Nov. 27 2007, available at http://www.philly.com/philly/news/homepage/11849077.html.
[8] See Andrew Maykuth, Johnson Sees “Terrible Flaw” in Force, Phila. Inquirer, Nov. 27 2007, available at http://www.philly.com/philly/news/homepage/11849077.html. Former FOP President Robert V. Eddis has also endorsed the need for more exempt deputies. Conversation with Sarah Stevenson of the Committee of Seventy, October 8, 2007. Mr. Eddis’s statement is not the official position of the FOP.
[9] Kenney’s bill would still require laborers to live in the City for one year prior to hiring. Bill No. 080003.
[10] Philadelphia Home Rule Charter § 3-103.
[11] Philadelphia Home Rule Charter § 3-103 annotation 1.
[12] See, e.g., Houston City Charter § V-a(2)(f). The number of exempt executive level employees is limited to two percent of the Houston’s total workforce.
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