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June 11, 2013

Burlington Council Upholds Secrecy of Legal Memo on No-Trespass Ordinance

Norm BlaisAs Washington debates the balance between government secrecy and citizens' right to know, Burlington city councilors argued Monday night over whether to make public their own government secret: a written opinion from the city attorney's office about the legality of a new no-trespass ordinance.

 

The councilors ultimately voted 8-5 to maintain the secrecy of Assistant City Attorney Gregg Meyer's 2012 opinion on the constitutionality of the ordinance, which authorizes expulsions from the Church Street Marketplace for unruly behavior. The vote broke along party lines, with the council's five Progressive-aligned members against six Democrats, one independent and one Republican.

The showdown centered on an amendment offered by Ward 6 Democrat Norm Blais (pictured) that effectively negated a Progressive-backed resolution calling for release of the legal opinion. Blais told the council that the issue at hand actually involved "politicians' remorse." He implied that the Progs now regretted having voted for an ordinance that the council approved unanimously in February.

The Progressives' effort to make the analysis public did stem, they acknowledged, from subsequent objections by some constituents that the ordinance violates constitutional protections. The Progs responded to those expressed concerns by asking John Franco, a former city attorney now in private practice, to analyze the constitutionality of the ordinance. Franco declared in a five-page memo dated June 4 that "this ordinance is neither lawful nor constitutional."

Blais' suggestion of the Progs being motivated by politics drew critical responses from two councilors. Ward 3 Progressive Vince Brennan said he was "taken aback" by Blais' contention. Fellow Prog Max Tracy (Ward 2) added that he viewed Blais' remarks with "displeasure."

"What are you trying to hide?" a visibly angry Tracy asked. And Ward 3 Progressive Rachel Siegel warned that if the council did not agree to make the document public, "We are going to look tremendously suspect." Siegel had earlier framed the issue as a test of the Weinberger administration's stated commitment to "transparency" in city affairs.

Councilors who argued successfully for continued confidentiality of the year-old legal opinion cited the principle of "attorney-client privilege." The Weinberger administration says that the city council in this instance is acting as the client of the city attorney.

Ward 5 Democrat Chip Mason, a corporate lawyer, said the "sanctity" of such private communications is "not something we should be waiving." Blais, who is also an attorney, insisted "this is not a question of transparency." Blais said there are "sound reasons for having privileged communication with an attorney," but he did not specify what those reasons are.

Ward 2 Progressive Jane Knodell directly asked City Attorney Eileen Blackwood whether the council should never override the confidentiality of attorney-client communications regarding city matters. The council does have the right to waive the privileged status of communications when that would be "in the best interests of the city," Blackwood responded. Knodell then suggested it might be "in our best interest to waive attorney-client privilege [in this instance] to show we have nothing to hide."

Blais' amended version of the resolution, which was approved unanimously after the Progs failed to defeat it, refers Franco's assessment to the council's ordinance committee. That three-member panel chaired by Mason is instructed to make recommendations to the full council on whether further action is needed in regard to the no-trespass ordinance.

City Attorney Blackwood has meanwhile offered to prepare a new assessment of the ordinance's constitutionality that would be made public.

Franco contends in his memo that the ordinance ignores rights of due process by allowing police to to ban individuals from the Marketplace who are accused — but have not been convicted — of unlawful behaviors. Appeals of those expulsions, which can take several weeks or months to resolve, are heard by a committee appointed by the Church Street Marketplace Commission. Franco argues that such a body has no right to act in a judicial capacity.

He adds that the city cannot lawfully act on the presumption that it "owns" Church Street. "In the case of public streets, nothing could be further from the truth," Franco's memo states. "Church Street is 'owned' by the very people whose banishment the ordinance purports to authorize."

Presumably, the city's assessment argues otherwise. But as of Monday night, that legal opinion remained undisclosed.

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