With little or no support in Philadelphia City Council, a bill that would have facilitated the Boy Scouts building deal is expected to die in committee on Dec. 15, when Council adjourns its four-year session.
Last December, City Councilmember Darrell L. Clarke introduced Bill 100876 to enable the sale of 231-251 N. 22nd St. to the Boy Scouts of America Cradle of Liberty Council for $500,000 — much less than the property’s estimated value.
In return, the Scouts would have dropped a federal suit against the city for allegedly violating its rights and asking the local council to renounce BSA’s antigay membership policy.
Also, the Scouts would have stopped seeking from the city about $960,000 in legal fees purportedly incurred during litigation to fight eviction from city-owned property.
The proposed deal sparked outrage among LGBTs and allies, who saw it as rewarding the Scouts for behavior that’s prohibited under the local Fair Practices Ordinance.
Opponents of the deal also said it would set a bad precedent, paving the way for other discriminators to lease or purchase city property at a reduced rate.
City Council members — including six new members scheduled to take office in January — apparently listened, because not one has publicly supported Clarke’s bill.
Attorneys familiar with the case have noted that the Nutter administration could try to sell the property to the Scouts without City Council approval.
But the Philadelphia Authority for Industrial Development, a quasi-governmental agency that Nutter wants to serve as an intermediary in the sale, has stated that it won’t facilitate the sale without City Council approval.
Now, with Clarke’s bill seemingly dead in the water, city officials must decide their next move in resolving the dispute.
The following potential solutions have been floated for discussion within the LGBT community.
Sell the property through competitive bidding
Supporters of competitive bidding say it’s the best way to determine the property’s fair-market value. They also point to a court ruling allowing the city to sell the property to a person or entity other than the Scouts, as long as it does so in a constitutional manner.
Local philanthropist and businessman Mel Heifetz has placed a bid of at least $1.5 million for the property. Heifetz also has stated publicly that he’s willing to pay more if necessary. He wants to turn over the building to a nonprofit that would operate it bias-free, possibly as an LGBT history museum.
Proceeds from the sale could be used to pay legal fees assessed against the city, if any.
However, if the Scouts refuse to cooperate with the sale, it remains to be seen how they would be evicted.
Some have suggested that the city simply let the eviction problem fall onto the shoulders of the new owner. But that approach could expose the city to additional litigation from the Scouts.
Alternately, the city could offer the Scouts a portion of the sale’s proceeds in return for agreeing to stop suing the city. The city routinely settles litigation with money. Since there doesn’t have to be any admission of wrongdoing, both sides save face.
And the Scouts would have cash in hand to help with the purchase of a new headquarters on private property.
Some might oppose any city funds going to an organization that discriminates. But the Scouts have been in the building for more than 80 years (albeit rent-free), and reportedly have made expensive repairs to the building.
Those points tend to resonate with the general public, perhaps justifying some type of cash payment to ease the way out for the Scouts.
Create a nonprofit board to oversee the building
Some community members have suggested the formation of a nonprofit board to oversee the property as its caretaker. The Scouts would be permitted representation on the board, as well as access to the building. But any programming that takes place inside would be strictly monitored to ensure equal opportunity for all.
This concept reportedly was conveyed to the Scouts earlier this year, but the Scouts have been focused on passage of Clarke’s bill. As that becomes less likely, the BSA might do well to seriously consider participating in a new board.
If the property is eventually sold to the private sector, safeguards would be in place to ensure that the Scouts didn’t unduly profit from the sale — thus avoiding another form of subsidized discrimination.
Limit onsite activities to Learning for Life
In court papers, the Scouts said 80 percent of the activities inside the 22nd Street building are focused on Learning for Life, an educational and vocational program that’s open to all youths in the region — regardless of sexual orientation. If that’s accurate, an obvious solution would be for the Scouts to agree to limit their onsite activities to Learning for Life.
Traditional Scouting programs could take place in the council’s other office building in Valley Forge.
If national BSA leaders oppose this approach, they could be reminded that the local BSA council is headquartered on public property, so some concessions need to be made.
The Scouts consistently have declined to comment on this option, perhaps worrying that the city would identify overlap between Learning for Life and traditional Scouting programs.
But for years, the local council has administered the city’s Learning for Life programs in corrections and law enforcement — with no issue being made by the city about overlap with traditional Scouting programs.
Others have posited that the Scouts exaggerated the size of Learning for Life to appear less discriminatory. In reality, Learning for Life on its own may not be large enough to sustain operations, pay staff and maintain the 22nd Street building.
Appeal the federal-jury verdict
In June 2010, a federal jury ruled that the local BSA council’s constitutional rights were violated when city officials allegedly asked it to renounce the national BSA’s antigay policy in order to stay on the property rent-free.
While it’s debatable that city officials ever asked the council to do such a thing, many believe an appeal at this late date would be counterproductive. Opponents say it would give the impression that the city was hounding a local organization that wants to help all children, despite biased policies imposed by national BSA leaders.
Additionally, there appears to be little support for appealing the verdict among key Nutter officials and City Council members. City Solicitor Shelley R. Smith has stated publicly that an appeal would be an inappropriate use of tax dollars, while the Scouts continue to discriminate inside a city facility.
On the other hand, LGBTs and allies who support an appeal say it’s very likely that the city would prevail — noting a recent Supreme Court decision reinforcing the right of governments to condition subsidies on compliance with antibias rules.
Advocates of an appeal also note that Philadelphia has a long history of promoting civil rights, and an appeal would be in keeping with that distinguished tradition.
Additionally, an appeal might be necessary if the judge handling the federal case decides to issue a ruling on the pending post-trial motions, despite requests from both sides for more time to settle.
This week, Nutter spokesperson Mark McDonald declined to comment on the possibility of an appeal. “As in the past, we hope City Council will take up [Clarke’s] legislation,” McDonald said.