435 Hamilton Street

Allentown, Pa. 18101

Allentown

Minutes - Final

City Council

Thursday, February 15, 2024

6:00 PM

Council Chambers

Roll Call: Gerlach, Hendricks, Zucal, Affa

Mr. Ed Zucal stated that they are here to discuss a Resolution regarding a

Special Investigation. He asked Mr. Hanlon to call a Roll Call. He stated

that before they start he would like to read a Statement regarding an

Executive Session they had. The Special Investigation Committee held an

executive session on February 7 at 6PM in the Fifth Floor Conference

Room pursuant to exemptions found in Section 798A of the Sunshine: (4)

To consult with its attorney or other professional advisor regarding

information or strategy in connection with litigation or with issues on which

identifiable complaints are expected to be filed; and (5) To review and

discuss agency business which, if conducted in public, would violate a

lawful privilege or lead to the disclosure of information or confidentiality

protected by law, including matters related to the initiation and conduct of

investigations of possible or certain violations of the law and quasi-judicial

deliberations. He stated that the purpose as he said tonight was to discuss

a Resolution. He asked Mr. Hanlon to read and discuss the components of

the Resolution. He stated that up to this point they have been conducting

business as an Ad Hoc Committee. So tonight, they are going to have an

election, not an election, but an appointment of an actual Chairperson for

the committee.

4 - Daryl Hendricks, Ed Zucal, Ce-Ce Gerlach, and Candida Affa

Present:

Election of Chairperson

Ms. Ce Ce Gerlach stated that she nominates Mr. Zucal.

Mr. Daryl Hendricks seconded that nomination.

Mr. Ed Zucal stated from this point forward he will be the official

Chairperson of the committee. He asked to make note that Ms. Affa has

arrived.

A motion was made by Ce-Ce Gerlach, seconded by Daryl Hendricks, to nominate

Mr. Zucal as Chairperson

3 - Daryl Hendricks, Ed Zucal, and Ce-Ce Gerlach

Yes:

Discussion of Draft Resolution

15-6660

R29

City Council hereby determines and concludes that outside the Purchasing

Agent neither the Director of Finance nor anyone from the Administration

should participate in scoring or be present during the process to select a

response to the RFP selecting investigatory services since it is an

investigation of the Administration.

Gerlach, Hendricks and Mr. Zucal

Sponsors:

Attachments: R29 RFP

Ordinance #15948

Code Contracts Provisions

Charter Provisions on Council Investigation Authority

Mr. Michael Hanlon stated that he will give the title of the Resolution and

read City Council hereby determines and concludes that outside the

Purchasing Agent neither the Director of Finance nor anyone from the

Administration should participate in scoring or be present during the

process to select a response to the RFP selecting investigatory services

since it is an investigation of the Administration.

Mr. Ed Zucal asked Attorney Smith to highlight the components of the

actual Resolution that the committee plans to introduce.

Attorney Charles Smith stated yes, sir. He stated that under Home Rule

Charter, Section 210, its says that in addition to the authority of the City

Controller conduct audits under Section 403 D of this Home Rule Charter,

Council shall have the power, by ordinance, to make or cause to be made,

investigations, audits or studies of the City and the conduct of any City

department, office or agency, and, for this purpose may retain professional

and technical assistance, subpoena witnesses, administer oaths, take

testimony, require the production of evidence, and provide funds for such

investigation, audit, or study. He stated that Subsection B, of Section 210

of the Home Rule Charter states The subjects of such investigation, audit,

or study shall be specifically stated in the authorizing ordinance. The

investigation that has been authorized by Ordinance #15948 which was

passed unanimously on September 20, 2023. It is his belief that falls under

Section 210 of the Home Rule Charter as an investigation of Council. The

other issue that arises, City Council investigations are not separately

addressed in the Code. This was handled as a Professional Service

Contract because it involves professional services. An RFP was done and

the Code Section that they are dealing with is Section 5 - 21, Contracts.

He stated now they are under Section 5 - 21 of the Allentown City Code

regarding contracts and are under Subsection E and then they are under

below E, they are under Subsection 2. They are under 5 - 21 E 2 and it

says the selection process and again, they are talking about professional

service contracts. The selection process shall be based on the objective

criteria contained in the RFP and shall be conducted by a Selection

Committee comprised of the Director of Finance, Department Head,

Bureau Manager, and any other staffing appropriate. He stated that

obviously, this is a City Council investigation and it doesn't neatly fit into

those parameters so for an example: There is no Department Head for

City Council, there is no Bureau Manager for City Council, but the issue has

arisen whether the Director of Finance should be included in the selection

process. He stated that the thought was that the way to handle this with

trying to get this in front of City Council would be for this committee to

entertain a Resolution tonight and the Resolution just like any other

committee you will be forwarding it to Council either with a

recommendation or unrecommended and then Council will have the

opportunity to vote on that Resolution. He stated that is the legal

background. Perhaps the Clerk can talk about the content in terms of what

the Resolution would propose. Essentially, the Now, Therefore.

Mr. Michael Hanlon stated if they would pass this Resolution, you are sort of

recommending that the Director of Finance nor anyone from the

administration to participate in scoring or be present during the process to

select a response. The Purchasing Agent would still be there and as you

know, the Purchasing Agent attends to the scoring, sets up interviews, sets

up the questions. It is not like nobody is going to be there. The Purchasing

Agent will be there. She will guide you through the Technical Evaluation

and then she will guide you through opening the Cost Proposals which

comes after the Technical Evaluation and should you want to do interviews,

the Purchasing Agent would run through the process. The Purchasing

Agent is very good (inaudible).

Attorney Charles Smith stated that she would essentially be there and

present, but she would not be a scorer.

Mr. Ed Zucal stated with that said so the purpose of this Resolution is

because several parts of the administration are involved in the investigation

and one of those may or may not be the Finance Director. It is their belief

by having her or him be part of the scoring system is an inherent conflict of

interest. It would be no different than if he was in Lehigh County Court

before a jury of homicide and his Defense Attorney would allow him or

hope for him to be able to pick his jury. He really doesn't think that the

District Attorney would probably handle that too kindly. That is how he is

trying to compare it so that they get a clear understanding on where they

are. He asked if anybody else on the committee has any questions.

Mr. Daryl Hendricks stated that he just wants to make a comment. In other

words, the Purchasing Agent would be the De facto Bureau Head in place

of any other Bureau Head that would not be there and should not be there.

It serves in that same purpose, really.

Mr. Ed Zucal stated in reality she is part of the administration, but not part

of the investigation.

Attorney Charles Smith stated right and he is just trying to and again, they

are trying to apply the professional services contract language in the Code

to a City Council investigation. The point he is making is in terms of who is

on the Selection Committee which are the scorers. There will be someone

present from the administration, administering and making sure things go

according to a protocol, but they would not be scoring.

Mr. Ed Zucal stated that she is required to be there by Code and City

Charter. It is not even an issue.

Mr. Michael Hanlon stated not the Charter. Under the Charter, you are

investigation comes out of the Charter. You can hire someone. That

comes out of the Charter. The Charter supersedes the Code, obviously.

Now, those coming into conflict in some areas. You have investigations

that have authorizations under the Charter. Not the Code. He stated that

they have never done this before. He stated that Council has never done

this before.

Attorney Charles Smith asked Mr. Hanlon how long has he been with the

city.

Mr. Michael Hanlon stated too long. He stated 34 years.

Attorney Charles Smith stated when you speak. He stated 34 years and

this is the first time you are encountering this. He stated that the other thing

that he just wanted to point out and neglected to mention earlier because it

is not a Home Rule Charter provision or a Code provision, but his

understanding in the RFP scoring process is that all persons on a

Selection Committee are required to sign a Confidentiality Form and that is

taken very seriously in terms of what can be discussed outside of the

selection process. He stated to him that goes to the issue of whether it is

confidential.

Mr. Ed Zucal asked if there was anyone else from the committee.

Mr. Michael Hanlon stated that it is not only the Scoring Committee. It is

everybody that handles those documents.

Ms. Ce Ce Gerlach asked is anyone from the administration coming to

maybe provide their insight. She asked the Solicitor. No one.

Attorney Charles Smith stated don't forget that this would be a

recommendation, up or down from the committee. They would have an

opportunity when this gets brought in front of Council as a whole. They will

certainly have an opportunity to weigh in at that point with their thoughts and

concerns.

Ms. Ce Ce Gerlach stated right. She definitely will be supporting the

Resolution. Just to avoid the conflict of interest and maintain a level of

fidelity with the investigation.

Mr. Ed Zucal asked if there were any comments from anyone else on

Council or from the public. This will go in front of Council and asked Mr.

Hanlon at which meeting.

Mr. Michael Hanlon stated the 21st.

Mr. Ed Zucal stated the 21st of February.

A motion was made by Ce-Ce Gerlach, seconded by Daryl Hendricks,to send to

Council for a favorable recommendation

3 - Daryl Hendricks, Ed Zucal, and Ce-Ce Gerlach

Yes:

ADJOURNED: 6:13 PM