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June 25, 2013

'Nothing to Hide' in Previously Secret Marketplace Memo?

Updated with PDF of legal memo

The Burlington city council voted 11-3 on Monday night to release a formerly secret memo from the city attorney's office defending the constitutionality of the Church Street Marketplace no-trespass ordinance.

Councilor Norm Blais (D-Ward 6), who joined fellow Democrats Dave Hartnett (Ward 4) and Chip Mason (Ward 5) in the minority, said proponents of keeping the document confidential were not trying to hide something. "There's never been anything to hide but always something to protect," Blais declared, referring to the claim of attorney-client privilege.

He said that assertion of privileged communication, which had been used to justify the secrecy of the memo, was based on the council's "duty to protect our ability to converse in a confidential manner with our attorneys."

Blais' claim of "nothing to hide" appears to be largely substantiated by the contents of the 14-page memo written by Assistant City Attorney Gregg Meyer and dated June 12, 2012. Download No Trespass Memo and Proposed Ordinance

One point that could be seen as potentially problematic from the city's perspective is contained in a footnote on page 10, in which Meyer writes that proposed changes he suggests for a draft version of the Marketplace ordinance "could be applied to the city hall park and library ordinances to minimize risk of constitutional challenges as well."

The city council has not amended those earlier no-trespass ordinances to reflect the suggestions Meyer makes. City Councilor Karen Paul (I-Ward 6) says Meyer's footnote was probably the substantive reason why many councilors did not want the memo released.

Meyer's analysis of the Marketplace no-trespass proposal is written in legalistic prose focused on Vermont and federal case law. If a few changes are made to the draft version, he writes, the ordinance "would be at minimum risk of being found unconstitutional if challenged in court." 

The proposed changes, which Councilor Max Tracy (P-Ward 2) says were subsequently incorporated into the proposal that the council approved unanimously in February, include giving first-time offenders of the Marketplace ordinance access to a hearing process. Meyer also recommended a "streamlining" of the hearing process. He said a panel appointed by the Marketplace Commission is sufficient to "provide adequate due process without requiring its decision to be reviewed and approved by the Marketplace commission acting as a whole."

The memo also addresses other concerns about the ordinance's constitutionality. 

"Although clearly giving authority to the police to potentially deprive people of a constitutionally protected liberty interest, [the ordinance] provides adequate due process of law via quick access to a post-deprivation hearing process and thus is constitutionally defensible," Meyer argues.

Concerns about potential violations of the First Amendment's guarantee of free speech should be seen as minimal, Meyer adds, because "the ordinance specifically targets conduct, not speech."

Ending his silence on the issue, Mayor Miro Weinberger said in response to a question by Councilor Paul Decelles (R-Ward 7) that he favored releasing Meyer's memo. Weinberger suggested it had been his view that it was solely up to the council to decide whether to waive attorney-client-privilege.

The city attorney's office said it had written the June 2012 memo in its capacity as attorney for the city council. Insistence on maintaining the secrecy of the document was not the position of the Weinberger administration, mayoral aide Mike Kanarick told Seven Days earlier on Monday. Even though the mayor appoints the head of the city attorney's office, it was not acting in this instance as an arm of the mayor, Kanarick said. It was playing a specified role of attorney to the city council, he explained.

The council had voted 8-5 earlier this month to keep Meyer's memo secret. It reversed its position last night in response to Decelles' motion to reconsider its June 10 decision. He said he had "a change of heart" that reflected a new view of the memo as a "policy issue" that should be discussed publicly.

The five Progressive-aligned councilors who voted to release the memo at the council's previous meeting were joined Monday night by Decelles, Tom Ayres (D-Ward 7), Paul, Council President Joan Shannon (D-Ward 5), Kevin Worden (D-Ward 1) and Brian Aubin (D-Ward 4).

Progressive Councilor and UVM professor Jane Knodell, a leader of the fight to release the memo, cited her career in academia in urging last night that the memo be made public. "I'm in the business of having vigorous debate," Knodell said, adding, "We need as much sunshine as we can shine down on this issue."

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