Decision on whether commissioners can oversee Philly primary going down to the wire

 Philadelphia City Commissioners (from left) Lisa Deeley, Anthony Clark and Al Schmidt are contesting an effort to keep them from monitoring Tuesday's primary election. (Emma Lee/WHYY, file)

Philadelphia City Commissioners (from left) Lisa Deeley, Anthony Clark and Al Schmidt are contesting an effort to keep them from monitoring Tuesday's primary election. (Emma Lee/WHYY, file)

It’s now up to a Pennsylvania state judge to decide whether the Philadelphia city commissioners can oversee Tuesday’s primary election.

During a roughly hourlong hearing in City Hall Friday, Common Pleas Court President Judge Sheila Woods-Skipper mulled arguments from lawyers representing a pair of government watchdog groups and the city commissioners, who are elected every four years to run elections in the city.

The Committee of Seventy, Philadelphia 3.0, and three candidates sued the commissioners with hopes of having them temporarily replaced by a panel of judges or “electors.” They say a piece of the state election code “requires disqualification.”

According to the statute the plaintiffs cite, the city commissioners must be recused when they’re running for re-election, but also when a ballot question proposes a change to a county’s home rule charter. The petitioner’s argue Tuesday’s election has such a ballot question.

They also argue the ballot question presents a conflict of interest because it deals with procurement. Specifically, how the city awards city contracts — contracts that could directly affect the commissioners office.

“It’s better to err on the side of caution,” said Benjamin Geffen, a staff attorney with the Public Interest Law Center, which is representing the Committee of Seventy.

The city solicitor’s office, which is representing the commissioners, argued the statute doesn’t apply to Philadelphia because its home rule charter is a city charter, not a county one.

The City of Philadelphia and Philadelphia County consolidated more than 160 years ago.

Deputy City Solicitor Benjamin Field also said there’s no conflict of interest because the city commissioners didn’t draft the ballot question that will be put to voters.

What’s more, he argued, siding with the petitioners this close to the primary would “undermine a fair and well-run election.”

Geffen disagreed.

“The roles the city commissioners carry out leading up to Election Day are primarily carried out by the permanent staff, not by the commissioners themselves. The role of the city commissioners themselves becomes most important on and after Election Day. So those duties have yet to occur,” said Geffen after the hearing.

Judge Woods-Skipper said Friday she would rule “as soon as humanly possible.”

In late March, the lawsuit’s plaintiffs asked the Pennsylvania Supreme Court to compel Woods-Skipper to recuse the city commissioners on the same grounds.

In response to the suit against her, Woods-Skipper’s lawyers said the president judge and her court are “not appropriate advocates to advance arguments” regarding the state election code or “to defend any institutional interests at state.”

The high court later denied the motion, leading Committee of Seventy and Philadelphia 3.0 to refile the suit in Common Pleas Court.

Both legal efforts are part on an ongoing push to abolish the commissioners office.

The Better Philadelphia Elections Committee, of which Philadelphia 3.0 and the Committee of Seventy are a part, wants to replace the office with a department of elections led by a director, who would be appointed by the mayor.

The commissioners have argued the director would be beholden to the mayor, not the public.

Getting rid of the city commissioners would require an ordinance from City Council, the mayor’s signature and voters to agree via ballot question.

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