Councilmanic prerogative in Philadelphia: What you need to know

“Councilmanic prerogative,” an inelegantly titled and obscure aspect of politics and power in Philadelphia, has gotten more attention in recent years, along with increasing calls to curtail its use.

Now, it’s back in the news thanks to the federal bribery trial of City Councilmember Kenyatta Johnson. In that case, Johnson and his wife, Dawn Chavous, are accused of accepting more than $60,000 in bribes for helping Universal Companies, a community development charity and charter-school operator founded by Philadelphia music icon Kenny Gamble, with two South Philadelphia properties it owned.

What is councilmanic prerogative? Here is what you need to know:

Councilmanic prerogative is a tradition under which the 10 district councilmembers representing geographic areas of Philadelphia have the final say on land-use decisions in their districts. (The seven other Councilmembers are “at large,” meaning they don’t represent a geographic district.)

Land-use decisions include adding bike lanes, selling vacant parcels of publicly owned land, changing parking requirements, creating historic districts, and various other zoning changes. In that sense, it can give members of Council a great deal of power over how their neighborhoods look.

State and city laws require City Council legislation for actions such as the sale of city-owned land and changes to zoning codes.

Legislation must win a majority of votes from City Councilmembers and get the mayor’s signature before becoming law. But under prerogative, there is essentially an unwritten agreement that Councilmembers can make those decisions without interfering with one another — so all members vote along with the preference of their colleague whose district is affected by the legislation.

As a result, land-use bills typically pass with unanimous votes. Between 2008 and 2014, there were 730 prerogative bills passed in the city, and 726 of them passed unanimously, with only six dissenting votes cast in total, according to a 2015 report from the Pew Charitable Trusts.

Councilmanic prerogative has played a role in a number of high-profile land developments in Philadelphia over the years. In Johnson’s case, he’s accused of pushing through a rezoning ordinance, allowing the site of the former Royal Theater to become a mixed-used development with apartments and retail space, at the request of an area nonprofit that owned the building and offered a consulting contract to his wife. Prosecutors have described that contract as a bribe to buy the councilmember’s assistance.

The ongoing debate about streeteries has also been touched by councilmanic prerogative. Council amended a bill that would have made the pandemic-era outdoor dining structures permanent citywide, opting instead to preserve Councilmembers’ control over their districts. As a result, restaurants outside of “by-right zones” allowing streeteries must ask their district Councilmembers to sponsor legislation approving them on a case-by-case basis.

Another more distant — and infamous — instance of its use was in 1986, when the city struck a deal with developer Willard Rouse to lease Penn’s Landing. Council needed to approve the transaction, and Councilmember Leland Beloff agreed to do so for a sum of $1 million. Rouse reported the incident to the FBI and donned a wire when exchanging the money, and Beloff was eventually sentenced to 10 years in jail.

Those who support prerogative generally point to the idea that representatives tend to know their communities and districts better than anyone, so it makes sense to defer to their decision-making. Removing it completely, some say, could remove residents’ voices from conversations about what their neighborhoods look like.

“For every time you find a thieving, conniving developer who somehow hoodwinked the city into giving them something for free, I think you can find a Councilmember who listened carefully to neighbors and tried to act accordingly,” John Carpenter, former deputy executive director of the Land Bank and the Philadelphia Redevelopment Authority, told The Inquirer in 2019.

Critics argue that councilmanic prerogative can enable corruption. The Pew report said the tradition has played a role in the conviction of six Councilmembers since 1981. Opponents also say the practice undermines the fundamental democratic concept of checks and balances.

“The legislature exists to check the power of the executive and prevent a single person from becoming a tyrant,” The Inquirer’s Inga Saffron wrote in 2019. “But when a district councilperson can introduce a bill, approve a land sale, or change zoning — all without real oversight from fellow legislators — there is no check on that power.”

While City Councilmembers continue the practice, it faced criticism ahead of the 2019 Council elections. In the wake of reports about its use in controversial land deals, one activist, Abdul-Aliy Muhammad of the Black and Brown Workers Cooperative, was arrested at City Hall while protesting the policy.

Yes, but not exactly as we know it. Outside of Philadelphia, councilmanic prerogative’s equivalent is typically known as “legislative courtesy” or “reciprocity,” and can be found in cities like New York and Chicago.

Chicago’s practice of reciprocity — or “aldermanic privilege,” as it is known there — is the most similar to Philadelphia, according to the Pew report. That city is broken up into 50 wards, each with its own alderman in Chicago City Council. Its use primarily affects land-use issues, and there is little transparency. However, the practice was changed in 2019, when Mayor Lori Lightfoot signed an executive order that somewhat limited its power by eliminating aldermanic vetoes.

Philadelphia’s councilmanic prerogative tradition, though, is stronger and more extensive than in many other cities. According to Pew’s report, that’s due to elements such as the sizable stock of city-owned land, a long-running practice of zoning code adjustment, and seven decades of one-party rule.