Kenney aide faults Nutter team for confusion on legal filing; former solicitor rebuffs claim

When Mayor Jim Kenney learned that his own law department was taking the Defender Association of Philadelphia to court to keep it from getting police department records, he was astonished.

And that morphed into a bundle of questions. Why is the city fighting to shield the data? Who authorized the appeal? Why didn’t his team know about this sooner?

The episode shines a light on what Kenney’s people are saying is a key city department that’s off to a less-than-smooth transition: the office of city solicitor.

Shelley Smith, who held the job for the eight years of the Nutter administration, has made the handoff tense, Kenney officials say, by brushing off the new administration, which says it repeatedly asked for a complete list of pending litigation initiated under Mayor Michael Nutter.

Smith’s office has been “unwilling to be helpful in any way, shape or form,” said Kenney spokeswoman Lauren Hitt.

“We suspect now that maybe it was because they were trying to get this case through,” Hitt said, referring to the stop-and-frisk records case. “Obviously stop-and-frisk was a policy of the last administration, and it’s not one of ours.”

That’s nonsense, countered Smith, saying she knew nothing about this appeal. Further, she said she debriefed the transition team about pending lawsuits and has tried to make the changeover as painless as possible.

“I would suggest that before anyone ever says that I’m not forthcoming, they talk to me directly,” Smith said.

In 2010, the ACLU took the city’s police department to federal court, saying officers stop and frisk pedestrians without probable cause. Blacks and Latino residents, the suit said, are overwhelmingly targeted.

The suit resulted in a settlement that prompted an independent monitor to keep track of all stops and frisks. And the settlement also called for police to keep a database to store thorough data on stops and frisks.

Attorneys with the city’s Defender Association wanted the aggregate data, so it filed a public records request, which had the backing of Pennsylvania’s Office of Open Records. But now the battle is over whether aggregate data is useful or violates the privacy of officers and pedestrians. The city is still trying to figure this out, thus it hasn’t filed court papers to withdraw the appeal.

But to the city solicitor’s office, it’s merely one of hundreds of “right to know” requests the city sifts through, with appeals based largely on former decisions, not on politics, according to staff members.

At any given time, the 165 assistant city solicitors are working through some 40,000 active lawsuits involving the city that are related to everything from tax disputes to civil rights claims.

How are the Kenney team and new City Solicitor Sozi Tulante guaranteeing that there aren’t other cases filed under Nutter that the Kenney team objects to?

“We’re working diligently to make sure that nothing else like this is going on,” Hitt said.

Hitt attributes the law department’s action in part to animus on Nutter’s part against Kenney — the two have feuded at times over the years.

Smith doesn’t buy it.

“I don’t have any knowledge of what went on between Michael Nutter and Jim Kenney, at any point, other than what I read in newspapers,” she said.

During her eight years in office, Smith said she steadfastly tried to make sure everybody knew the office was not political.

“And we didn’t handle the transition politically, either. And I wouldn’t have withheld information. I knew I was leaving,” Smith said. “What would be the point of that?”

As for the stop-and-frisk data dispute now moving along in the Court of Common Pleas, Kenney’s team said it’s working to find an out-of-court resolution with the public defenders, who filed a “right to know” request.

Those familiar with the case say the clash isn’t over whether to hand over data on the controversial tactics, but rather, how much information about officers and pedestrians is useful and where privacy lines will be drawn. City attorneys said they’re hopeful they can figure out an arrangement where both sides are happy.

A new filing on 2015 stops and frisks is expected to be publicly filed as part of the federal settlement in the coming weeks. But whether that data will satisfy what the public defenders are after remains to be seen. 

City insiders say any litigation involving stop and frisk, even if it’s a public records request, should have been brought to the attention of the new head solicitor.

“It’s so high profile. It was a major campaign issue,” said a former Nutter administration official. “It has the potential to open the city to a lot of liability if that information is bad.”

Editor’s Note: Since publication, Lauren Hitt, a spokeswoman for the mayor, has walked back some of her comments about former City Solicitor Shelley Smith. Hitt says that at the time she gave comment, she had incomplete information. She says she has since learned that Shelley did indeed provide information to Kenney’s transition team about pending litigation, which included the suit over stop-and-frisk data. 

“My statement speculating about why Shelley did not provide us with this information was just that, speculation. At that time I made that assertion, I did not know, and made no effort to ascertain from her, whether Shelley knew about the Right-to-Know request or the Law Department’s intention to file its appeal,” Hitt said. “I later learned from your story that she did not have personal knowledge of either the request or the proposed appeal, and our discussion with Law Department personnel supports her statement.”