Prerogative and the Constitution

Could a sea change be in works for an old city council tradition?

07/15/2009 10:00 PM

By MICAH MAIDENBERG
Editor

No Comments - Add Your Comment

The city council tradition known as aldermanic privilege, or aldermanic prerogative, goes back a long way in Chicago.

"In the 19th century if you wanted your street paved, you got a petition together signed by all the property owners on the street and then presented it to the alderman. And the alderman introduced it to city council," Dick Simpson, a University of Illinois-Chicago professor who served on the council years ago, said of early manifestations of the practice.

Aldermanic privilege has evolved over time. It grew in use after the city began collecting general revenue funds and more strictly regulating various aspects of urban life and business, Simpson said, particularly after the Chicago fire.

There hasn't been continuous expansion of the power; in 1955, the city council voted to take permitting driveways, for example, out of individual aldermen's hands.

The tradition allows aldermen a say over zoning and development decisions within their wards based on the idea that they know community needs better than anyone else. Other aldermen defer to their colleagues' wishes on such ward-level matters and vote accordingly in committees and in the full city council.

Instances of council members not upholding the privilege are rare. The Sun-Times reported Monday that council's 33-16 vote in June 2008 to approve the Chicago Children's Museum's move to Grant Park over the objections of Ald. Brendan Reilly was the first time in four years that aldermen failed to respect the tradition.

While critics believe allowing alderman such power over, for example, zoning in their wards has created a system whereby developers trade campaign cash (and bribes) for zoning permissions, Simpson said the practice has merits.

"Obviously, aldermen could abuse the privilege. It serves the purpose of allowing decisions to be made based on the needs of the community," Simpson said, and not merely called "by planners at city hall."

"In my own mind, aldermanic privilege can be exercised in a way that's open to public hearings and to the community," he said. "When I was alderman, I had a community zoning board open to the public in the evenings."

The hotel's challenge

Aldermanic privilege and its alleged application at a strike-embattled South Loop hotel were at the heart of a trial that ended Monday in federal court.

Simpson said the case could well be the first time a plaintiff has challenged the constitutionality of the tradition.

After three days of testimony from 11 witnesses, attorneys representing the Congress Plaza Hotel and Convention Center and the City of Chicago rested their cases and agreed to submit briefs outlining their respective arguments to the court within 10 days.

The trial stems out of a 2007 lawsuit brought by the Congress. The hotel alleged in the suit that Ald. Robert Fioretti, whose 2nd Ward includes the hotel, used his aldermanic privilege to condition issuance of various permits, including those for a rooftop expansion and a sidewalk cafe, on resolution of what's now a six-year-old strike at the hotel.

By doing so, the suit claimed Fioretti deprived the hotel of equal protection measures guaranteed under the U.S. Constitution and interfered in federal law governing labor disputes. The city denied the allegations; two lawyers from the Department of Law represented Fioretti because he was sued while acting in his official capacity as alderman of the 2nd Ward.

"If an alderman does not approve a permit, a development, whatever, the other aldermen respect that," Congress lawyer Peter Andjelkovich told Judge Ronald Guzman, in his opening statement on July 8, the first day of the trial.

"As a result of that conduct, our client has been damaged," he said, missing four seasons of sidewalk cafe business.

"The hotel's case hangs on the [notion] that a local alderman is the gatekeeper to get approval for a sidewalk cafe," city attorney Andrew Worseck said during his opening remarks.

Worseck said the hotel needed to prove aldermanic prerogative constitutes a "categorical veto power" over development decisions, a burden he predicted they wouldn't be able to meet. The city called no witnesses.

The union and the alderman

A sweeping ruling declaring the practice unconstitutional could, depending on appeals, mark a sea change in how Chicago development and city approval process works.

"If the judge finds violations of the Constitution, aldermanic privilege would be considerably undermined," Simpson said.

Simpson predicted that if the judge grants that the cafe permit was unduly held up by aldermanic privilege, he would do so on the "narrowest possible grounds," such as saying the privilege cannot be used in a labor dispute.

"A judge wouldn't normally want to overturn the whole practice," Simpson said. "The effect of that decision would be everything would be decided by city hall."

Because the hotel received Plan Commission approval in June for a rooftop expansion (an approval the commission rejected in January 2008, inspiring the hotel to file a lawsuit in about the matter in Cook County Circuit Court), much of the trial focused on the sidewalk cafe permit the hotel has been unable to get, save for a brief period in August 2006.

The hotel's accountant testified that the Congress lost about $215,000 between 2006 and 2009 because it hadn't been able to develop a sidewalk cafe outside its structure at 520 S. Michigan.

Throughout the trial, hotel lawyer Peter Andjelkovich tried to tease out connections between the president of Unite Here Local 1, Henry Tamarin, and other union staffers and Fioretti and Fioretti aide Hanah Jubeh, who formerly worked for the Chicago Federation of Labor.

The union has opposed granting the hotel the permits during the strike. Local 1 represents the approximately 130 housekeepers who have been striking the Congress since 2003.
The plaintiff showed and introduced into the record two videos of Fioretti speaking at Local 1 rallies outside of the hotel, expressing support for the strikers.

Andjelkovich demanded answers about Fioretti and Tamarin's phone conversations, exchanges outside council chambers in city hall and the hard-fought election campaign for 2nd Ward alderman, in which the union took a position against Fioretti rival Madeline Haithcock position in the first round of voting and supported Fioretti's ultimately successful bid in the runoff.

One of the key moments for the hotel's case appeared to be a July 9, 2007, meeting at Fioretti's Dearborn Street office attended by Fioretti, Jubeh, Andjelkovich, the hotel's architect and hotel president Shlomo Nahmias.

In its amended lawsuit, the hotel alleges that Fioetti said he would not "issue or approve any permits for the Congress Hotel until the strike by Local 1 is resolved" because he "made this promise to the union before I was elected."

The city responded by denying that aldermen issue permits and that the Congress had failed to submit an application for a 2007 sidewalk cafe, something Nahmias testified that was indeed the case on the last day of the trial.

During his direct examination of Fioretti, Andjelkovich asked why a strike would be a factor in his approval of a sidewalk cafe permit.

There are many factors, Fioretti said, like the position of picketing strikers and patrons at a cafe.

Fioretti testified during cross-examination that he had heard hotel patrons verbally abusing the picketing hotel workers, even yelling "F--- you" at them.

"We should have good labor relations, good corporate citizens," the alderman said. "All of that is a factor in signing off on a sidewalk cafe"

He added he doesn't have "sole authority" to issue sidewalk cafe permits.

The permit

The hotel's case hinges on its ability to prove that if an alderman doesn't give his or her approval for a sidewalk cafe then it will not be recommended for passage by members of the Committee on Transportation or Public Way nor approved by the full city council.
Andjelkovich, asked Fioretti why, of the 49 applications for a sidewalk cafe permit that were before the transportation committee on June 25 only one - the Congress' - didn't have an alderman's signature on it.

And only one - Congress' - failed to get recommended for passage by the whole city council.

"Do you know why the Congress Hotel's permit was not passed but the others were?" Andjelkovich asked Fioretti.

Fioretti said he did not.

All 48 applications that passed on June 25 were signed by aldermen. One was not - the Congress', Andjelkovich responded.

"It was signed by the mayor's office," Fioretti answered. "It didn't need my signature."
But later in the trial, Bernard Citron, a zoning lawyer who has represented the Congress Hotel before the Plan Commission, said that since 1999, his firm has secured about 350 sidewalk cafe permits. All were approved by the aldermen representing the wards where the applying restaurants were located.

And if there's no aldermanic approval, what happens, Citron was asked.
"It doesn't get introduced," he said.

Fioretti testified during the trial the hotel hadn't even presented him with an application to sign, told the judge that anyone can introduce an ordinance into city council and said he hasn't supported every sidewalk cafe permit application that has come before him.


No Comments - Add Your Comment