Settlement on hold in Scouts case

Last spring, when former city official Joyce Wilkerson was asked if she would support the Scouts’ eviction from a city-owned building even if it meant Philadelphia losing $65 million annually in federal assistance, she answered affirmatively.

“The city has a clear policy, a city ordinance, that prohibits discrimination,” Wilkerson said. “It doesn’t say, ‘Prohibited unless it’s going to cost the city some money.’”

Wilkerson, who once served as chief of staff to former Mayor John F. Street, was testifying at the federal jury trial about the Scouts’ contention that their eviction is unconstitutional.

Now, some LGBT activists are criticizing the city for not adhering to that same principle with a settlement plan that was made public last week.

Instead, they say, Mayor Nutter is willing to sell a building to the Boy Scouts Cradle of Liberty Council so they can discriminate on private property — partly in reaction to the Scouts’ threat of a $1-million legal bill.

“The mayor said [earlier in the litigation] that there are certain principles on which the city would stand, and those principles have been abandoned,” said Andrew A. Chirls, a member of the LGBT Working Group, which has been trying to resolve the dispute for years.

In September, the city Law Department and the BSA Cradle of Liberty Council reached a tentative settlement of the federal lawsuit.

They agreed that the property at 231-251 N. 22nd St. is worth $1.1 million, and should be sold to the Scouts for $500,000; in return, the Scouts would relinquish their right to seek attorneys’ fees from the city.

But the sale requires City Council approval and, so far, no council member has introduced legislation to finalize the sale.

City Councilman Darrell L. Clarke, whose district encompasses the building, said he won’t introduce legislation enabling the sale until more of his constituents convey their views.

“I have 150,000 bosses: the people in my district,” Clarke told PGN. “They’re the ones who can tell me what to do.”

The deal, if consummated, would mark the first time in Philadelphia that publicly owned land is sold to avoid compliance with anti-bias rules — and Clarke acknowledged concern about such a precedent.

Before any real-estate transaction can be voted on by City Council, the City Planning Commission must be given 30 days to offer a recommendation.

Gary J. Jastzrab, executive director of the nine-member commission, said it’s too early to say what, if any, recommendation the commission would make.

A public hearing also must be held by a committee of City Council, and the proposal must be given two public hearings before the entire body, before a final vote is taken.

City Council members interviewed briefly by PGN declined to give specific opinions about the controversy, but they all noted their commitment to nondiscrimination.

“I think we would all like to keep our city, state and world as bias-free as possible,” said City Councilman Frank Rizzo Jr.

Councilman William K. Greenlee expressed confidence that he and his colleagues wouldn’t act hastily, and would keep in mind the long-term public interest.

“I thought the Scouts should have been thrown out of that building a long time ago,” Greenlee said, but he also noted the reality of the jury verdict.

In June, after an eight-day trial, federal jurors said the city has a right to set anti-bias rules for the building, but that it placed an “unconstitutional condition” on the Scouts when it asked them to comply with the rules.

Greenlee questioned whether the Scouts would agree to any settlement that permanently precluded antigay discrimination inside the building.

City Councilwoman Jannie Blackwell emphasized that she wants to hear from all sides about the issue. “I’m all for community feedback,” she said.

Councilman Bill Green said he’s keeping an open mind, and cautioned that if the building is sold to the Scouts, the city wouldn’t be in a legal position to prohibit antigay discrimination inside.

Through a spokesperson, City Council President Anna C. Verna said she had no views to express about the matter until a bill is actually introduced.

Last week, the Greater Philadelphia Chapter of the ACLU of Pennsylvania sent a letter to Nutter and City Council members, expressing opposition to the proposed sale of the building to the Scouts.

“It is unreasonable for the City of Philadelphia to reward discrimination with the donation of over a million-dollars’ worth of public property,” the letter states.

Members of the LGBT Working Group say the $1 million legal-bill threat is hollow, pointing to an extensive analysis by the law firm of Schnader, Harrison, Segal & Lewis, which concluded that the city would be required to pay, at most, $268,583 if the Scouts prevailed at this stage of the litigation.

“In addition to the duplicative work of the junior associates, the overall hours claimed [by Drinker Biddle] must be reduced to account for the instances of double billing, duplicative work among the more senior attorneys, excessive hours and over-staffing,” the law firm concluded.

Schnader Harrison was brought into the case in January 2010, at the urging of the LGBT Working Group, over concerns that the city Law Department wasn’t giving the case adequate attention.

Chirls said the property is worth much more than $500,000.

“The building is a palace on the Parkway with 19 parking spaces, and it would be sold for the price of a nice rowhouse,” he said. “We’d be giving the Scouts a gift to discriminate in.”

Chirls said members of the LGBT Working Group would like to discuss other settlement options with administration officials that wouldn’t subsidize discrimination.

Nutter had no comment for this story, according to a spokesperson.

Robert A. Stuart, a board member of the Logan Square Neighborhood Association, said a neighborhood meeting was held about the dispute on Nov. 21.

“The neighbors appear to be committed to ensuring that any permanent use of the building does not include discriminatory programming,” Stuart told PGN. “We do not want to live anywhere near any discriminatory programming. Our main priority would be a deed restriction to ensure that nothing is built on the property that would be out of scale with the existing rowhouse character of the neighborhood. But we also want to be assured that any programming that takes place inside the building is nondiscriminatory.”

Steven A. Glassman, a member of the LGBT Working Group, expressed hope that administration officials meet with LGBT leaders.

“I think it would be valuable for the mayor, the city solicitor and members of the Nutter administration to meet with the leadership of the LGBT community to discuss a variety of options which are still available,” he said.

Glassman emphatically opposed a settlement that would permit antigay discrimination inside the facility.

“Taxpayer dollars should not be subsidizing any settlement with the Boy Scouts that would allow them to continue discriminating against LGBT people,” Glassman said. “It is unacceptable to allow discrimination to take place against any group in Philadelphia which is protected by the Fair Practices Ordinance.”

U.S. District Judge Ronald L. Buckwalter has not yet ruled on an earlier request by the city to overturn the jury verdict or, alternatively, to grant a new trial.

Drinker Biddle & Reath, the BSA council’s law firm, is seeking $963,575.07 from the city for legal fees and expenses incurred due to the litigation, according to court records.

Members of the LGBT Working Group said the Scouts have little or no chance of prevailing on appeal, due to a recent U.S. Supreme Court decision affirming the constitutionality of subsidy policies such as the one applied to the Scouts.

If the Scouts lose on appeal, the city would not be required to pay their attorney’s fees.

Tim Cwiek can be reached at (215) 625-8501 ext. 208.

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.