The Burlington City Council is likely this evening to reopen discussion of a Church Street Marketplace no-trespass ordinance it unanimously approved four months ago.
Stricken with second thoughts about the wisdom of their votes in February, the council's four Progressive members recently asked attorney John Franco, a fellow Prog, to assess whether the ordinance gibes with the provisions of the U.S. Constitution. It doesn't, Franco concludes in a five-page memo dated June 4.
That finding conflicts with an analysis of the ordinance written a year ago by Assistant City Attorney Gregg Meyer. It argues that giving city officials the authority to ban certain individuals from the Marketplace is consistent with the Constitution. But the basis for Meyer's conclusion has not been revealed to the public. City Attorney Eileen Blackwood says the document's contents come under the heading of "attorney-client privilege" and must thus be treated as confidential.
The Progs got permission from Blackwood's office to share Meyer's analysis with another attorney — Franco.
The four Progressive councilors are offering a resolution at this evening's meeting calling for Meyer's memo to be made public. "We need it to be out there so there can be an open debate," City Councilor Rachel Siegel said in an interview on Sunday.
In response, Blackwood said it would be "inappropriate" for her to comment on the Progs' resolution. Asked how the document's secrecy squares with Mayor Miro Weinberger's stated commitment to transparency in city affairs, Blackwood responded, "If we want to be transparent on something like this, someone has to give me direction" on when the claim of privilege should not be asserted.
Democratic Councilor Chip Mason, chairman of the council's ordinance committee, said on Sunday he favors keeping Meyer's memo secret. Mason, a corporate attorney, based his stand on the attorney-client rubric cited by Blackwood, but he added that he will be open-minded toward the Progs' arguments in support of releasing the document. The council, which in this case is considered the client of the City Attorney's office, has the ability to divulge the communication, Blackwood noted.
The ordinance states that Burlington police can issue a Marketplace no-trespass notice to a person charged with any of four specified types of illegal behavior: disorderly conduct, property damage, public consumption of alcohol or possession of banned drugs.
A first-time notice results in the alleged offender being banished from the Marketplace for the remainder of a day. A second citation puts the Marketplace off limits for 30 days, and a third exiles an individual for up to one year.
The ordinance allows for appeals of banning orders to be filed with a three-member hearing panel appointed by the Church Street Marketplace Commission.
Burlington police chief Mike Schirling said in an email message on Monday that the ordinance's provisions have been used in the six weeks since it took effect. But Schirling added that he could not specify how many times the ordinance has been applied. "There have been no appeals of orders issued that we are aware of," he wrote.
Franco argues that the Constitution does not permit Marketplace commissioners to act as judges. In an interview last week, he also noted that the ordinance allows no-trespass citations to be issued in cases where a person has only been charged with an offense, not convicted of it. "That's a blatant violation of due-process rights," Franco said.
In enacting the ordinance, the city council was responding to complaints from some Church Street merchants that the behavior of unruly Marketplace denizens was driving away potential customers. Franco said that's the same worry that motivated a scheme 20 years ago by Dennis Morriseau, then owner of Leunig's Bistro. Morriseau proposed offering free bus tickets out of town to persons regarded as behaving inappropriately on the Marketplace. He called the initiative "Westward Ho!"
"This is just a resuscitation of 'Westward Ho!'" Franco said in regard to the no-trespass ordinance.
"Implicit in the ordinance is the assumption that the City of Burlington 'owns' Church Street in the same way that a private landowner 'owns' his or her land and can order certain individuals off that land," Franco wrote in his memo to the Prog councilors. "In the case of public streets, nothing could be further from the truth. Church Street is 'owned' by the very people whose banishment the ordinance purports to authorize."
After hearing from constitutents concerned about the ordinance's constitutionality and after reading Franco's analysis, Ward 3 Councilor Siegel said she has come to regret her February vote in favor of the no-trespass statute.