Objections from an official and activists did not prevent Philadelphia City Commissioners on Thursday from reaffirming a $29 million city contract with a voting system vendor that violated anti-pay-to-play laws.
The three-member commission voted 2-0-1 to continue a city contract with Election System & Software (ES&S) to supply new voting machines for the November election. Commissioner Anthony Clark, a Democrat, abstained from the vote.
Commissioners ignored requests by City Controller Rebecca Rhynhart to refrain from making a decision until her office completed an investigation into the procurement process for the new machines.
Rhynhart revealed this week that the Omaha-based company did not report donations and communications by its lobbyists in the run-up to winning the contract in February.
Rhynhart, a Democrat, said her investigation will wrap up in the coming weeks.
“It’s disappointing, but it’s not over,” she said.
While activists repeatedly shouted, Common Pleas Court Judge Giovanni Campbell, chairman of the commission, said it was the “right decision for Philadelphia” for ES&S to keep the contract.
“I do not believe this process should be overturned or restarted because of the issues that took place before the board” voted today, Campbell said during the meeting inside Room 246 in City Hall. He declined to comment further after the meeting.
City Commissioner Vincent Furlong, another judge, also voted to maintain the contract.
The city will slap ES&S with a $2.9 million fine over the violations, or 10% percent of the contract.
The city continues to withhold payment to ES&S during Rhynhart’s ongoing investigation.
Rhynhart’s investigation so far has shown that ES&S used a lobbyist and engaged in lobbying activities in 2017 and 2018.
The lobbying activities included direct communication with then-City Commissioner Alan Schmidt.
ES&S also failed to disclose campaign contributions by consultants to Schmidt and then-City Commissioner Chairwoman Lisa Deeley.
Registered lobbying firms Duane Morris and Triad Strategies, who lobbied for ES&S, contributed $1,000 and $250, respectively, to a political action committee supporting Schmidt, Rhynhart found. Triad Strategies also made a $500 donation to a political action committee supporting Deeley.
Deeley, a Democrat, and Schmidt, a Republican, voted to award ES&S the contract to provide the new voting system, and KNOWiNK LLC to provide electronic poll books. City Commissioner Anthony Clark, a Democrat, did not cast a vote.
Both Deeley and Schmidt stepped down as city commissioners while they run for re-election. Clark is not running for another term and remains a city commissioner.
Campbell and Vincent Furlong, another judge, were appointed to fill the seats vacated by Deeley and Schmidt.
ES&S’s disclosure violations were unintentional and stemmed from a misunderstanding of the mandated disclosure requirements, said Alan Kessler, an attorney for Duane Morris, which was one of the two lobbying firms for ES&S who violated the city’s anti-pay-to-play laws.
Kessler, who noted another bidder for the voting system contract made similar violations, said the contacts and political contributions from ES&S lobbyists were still disclosed with the city, even though they were not noted in the company’s mandatory disclosure form for the bid.
“It is a classic case of no harm, no foul,” he said.
Activists and residents opposed to ES&S’s contract for the new voting system said the procurement process was tainted and lacked transparency, and claimed the machines were vulnerable to hacking.
“The reason that we have the disclosure laws is so we can reveal conflicts of interest and we can be aware of those or disqualify people from participating if they have conflicts,” said Kevin Skoglund of the nonpartisan organization Citizens for Better Elections.
A double standard?
Rhynhart laid out her findings in a letter this week to Campbell and others; she cited a city Law Department determination that the company’s violations warranted the contact was voidable.
The violations by ES&S were comparable to the issues that led the Kenney administration to disqualify the minority-owned company U.S. Facilities from bidding on a $17 million contract this year, Rhynhart noted in her letter.
U.S. Facilities, a subsidiary of PRWT Services, failed to disclose political campaign contributions totaling less than $500.
“The Kenney administration, at the time, stated that the value of the contribution is not relevant and that the City had little discretion to overlook these kinds of violations,” Rhynhart wrote.
The city’s anti-pay-to-play law disqualifies bidders from competing on contracts if their violations are discovered before a contract is awarded.
However, if the contract has already been awarded when the violations are discovered, the city “has the discretion to void the contract or maintain it,” according to a letter City Solicitor Marcel Pratt sent to the city commissioners this week.
In this instance, Pratt wrote, the “decision rests with the Board of Elections because the Board has the responsibility and sole authority to select the voting machines that are used for elections in Philadelphia.”
Pratt, in his letter, said ES&S would not have been disqualified from bidding on the contract if the company had made the disclosures on its application.
Mustafa Rashed, a spokesman for U.S. Facilities, declined to comment on Wednesday before the vote and could not immediately be reached for comment Thursday.
Machines are on their way
ES&S is expected to deliver the final 500 ExpressVote XL voting machines to the city this week, bringing the total to 3,700.
The city Board of Elections has held more than 200 public demonstrations of the new machines and trained more than 2,500 poll workers in anticipation to use the new system in the November election.
Gov. Tom Wolf mandated all counties select new, certified voting machines by the end of this year.
The new voting systems must be put into place by the 2020 general election to comply with the governor’s order to provide a paper record of votes cast. Philadelphia officials want to have the voting machines in place by the general election this year so their first use is not during a presidential election.
Pennsylvania was one of 21 states targeted ahead of the 2016 election by Russian government operatives.