Slam dunk! 3 for 3. Public Safety Review Committee (should be on 9/10) and Downtown Coordinating Committee (should be on 9/17) are next – they will be much harder. Not expecting unanimous defeat from those. Here’s what happened last night.
Dan O’Callaghan is the chair of the Community Development Block Grant Committee – I missed part of what he said, but he opened the meeting with some strong statements about how we as a community need to do better when it comes to solving homelessness and providing services. He also noted that in addition to the 4 or 5 people there to speak, they had received about a half a dozen emails. He also pointed out that the mayor had written a letter to the group as well. Adrianna Peguero is from the city attorney’s office and is there to answer questions. No one from the mayor’s office is there. The mayor did not attend and did not ask for referral until he could attend. (Funny, he skipped this and the Homeless Issues Committee – the two committees that actually deal with issues of people without homes, mayor was a no show. Wonder why? He attended PSRC and EOC.)
Alder Maurice Cheeks asks Peguero about the suggestion that the mayor’s proposal is unlawful, can you address that, what was your research as to the legality of the language and any recent changes to that? Peguero says she has been to most of the committee meetings and most of the discussion is around a recent statement of interest that was filed in a case in the 8th circuit in which a group of homeless individuals sued the city in the City of Boise for an ordinance that says it is illegal to sleep, camp on any public space. Their ordinance is very broad, its the entire city and 24 hours a day. The Statement of Interest has been filed by the United States Department of Justice and that has claimed a lot of the discussion about an ordinance like this. This is just a statement about what line of cases they would like followed in the court’s decision, it isn’t a decision of the court. Their opinion is that because sleeping is necessary for the human condition, that we have no choice but to sleep in order to live, that you the City of Boise is criminalizing the status of being homeless because it is a necessary condition for any person to sleep. They are basically saying that you are criminalizing the status of being homeless if there is no shelter space available and you are enforcing this ordinance. The ordinance does differ because ours is restricted to downtown business district and its only during certain times, someone could still sleep although the times are very limited, but they could still sleep from 1 am to 5:30 am. She can’t say, and that is why there are so many attorney’s in the world, that this would be struck down if challenged, she also can’t say that it would survive a challenge. What she can say is that this is a statement of interest, not a ruling and even it was a ruling, its not binding on this jurisdiction so it is not controlling here, but is it a very strong statement against similar ordinances, she can’t say that it is not. That opinion has been cited quite a bit and that is something they are thinking about. The broader any ordinance like this can be made, the less restrictive it is, the more likely it can withstand a challenge, if the council sees to pass something.
Alder Matt Phair asks if when they were drafting this and don the research, are you saying that because there is 4.5 hours to sleep that the human condition is permitted, it’s fair, it’s just, it’s moral? If you have no sleep that’s bad, if you get 4 that’s fine? Peguero says she takes no moral position on this (laughter), this is not the easiest position to be in, she did not write the ordinance, her boss did, but she is attending the meetings because she is the lead prosecutor for the City Attorney’s Office and that doesn’t just cover homelessness, but it is one of the issues that is covered. She says its difficult to say, she’s not saying it would survive. Is it arguable more humane or more moral because we are saying you can sleep for 4.5 hours. Phair says to take morality out of it, how do you legally justify this ordinance. Peguero says that it goes into that in the analysis and the introduction where it is thought that because this is a congested area, a downtown area, where there is alot of business and pedestrian traffic, that this is a special, specific area of the city where there is some legitimate public interest in limiting these things, either because there is a demand for public benches, whether it is affecting businesses to lay in the sidewalk or public rights of way. Its always a balance between a legitimate public interest and infringing on people’s constitutional rights, that is how you analyze anything like this. She can’t say if it would survive a challenge or not, but the less restrictive it is the more likely it is to survive. She says the one issue the Statement of Interest doesn’t go into great detail about, is what does it mean to have available shelter space – does that mean on any given night and what does it mean to be available? If someone can’t go into a shelter space because they have a mental illness or have behavioral issues and have been banned, is that available to them? It’s a complex analysis. It was a very strong statement from the Department of Justice on these ordinances, but she thinks our is less restrictive.
Ricky Hunt asks if this is specific to a certain area? Peguero says it is just specific to the business district, so that is going to cover the area in section 1, its basically the downtown and State St. area that has been defined.
Alder Samba Baldeh asks if the city attorney’s office is concerned about the human rights violations of this? How does this violate the homeless right to live in the city that they live. Peguero asks if he is asking about the moral aspect? Baldeh says no, the human rights aspect. Baldeh says what if you decide to sleep in this downtown area, do you have a human right to do that? Peguero says that she doesn’t want to pass the buck, or not answer, its a difficult question to answer, she says just like anything else, we recently got a letter from the ACLU about our panhandling ordinance which we have been enforcing for a very long time, and we got a letter challenging that, not legally but at least philosophically in the letter, its not a lawsuit yet, but we need to analyze these things as they come up, depending upon what the challenges are. The discussion in the DOJ statement of interest centers around the 8th amendment,is this cruel and unusual punishment because we are criminalizing the status of being a homeless person, instead of a behavior. We can say it is illegal to use heroin, we can’t say it is illegal to be an addict. We can’t criminalize someone’s status. This whole analysis is about whether we are criminalizing a status of a person, sleeping is a behavior, but that is a behavior that is so intrinsic to being a human being, so therefore are we criminalizing the status of being a person, and they are saying yes. That is the opinion of the department of justice. The city attorney’s office drafts changes at the request of the mayor or council, we always tell the sponsors what the challenges might be, we have those discussions, but on the broader moral place, we write them, we draft them, that is what we do.
Baldeh says that the mayor has been sending alot of this legislation to us, some of them have been voted out and then he brings them back again and we overrule him and what he is trying to say is can you tell the mayor this is illegal and you can’t do it, it is just going to waste everyone’s time. I doesn’t want people’s time wasted on this. Peguero says they always advice people if they think that the behavior they are engaging in or are proposing can be challenged. We are their attorneys and we advice them, but they can listen to us or not. Our clients can follow our advice or not. So that is the position we are in, if this passes and it is challenged, we defend what is challenged because we are challenged to do that.
Baldeh says, “and you use the taxpayers money to do that, right?” Peguero says yes, we are paid by the taxpayers.
Ben VanPelt thanks him for his poignant and sincere chairs report, we appreciate your leadership. He asks if acting on this ordinance is within their purview since a few years ago they got a letter from the city attorney’s office saying that they partook in a discussion and voted on something that was outside of their jurisdiction and Dan commented earlier about the mission of our committee and he wanted to make sure this fell within their mission. Peguero says she was surprised it was on their agenda, he says so was I. She says when I read the description since she never appeared before this group, she was surprised it was on the agenda. Ultimately it is up to the chair to decide to take a vote or if it is properly before them. O’Callaghan says that the council referred it to them so he thinks its properly before them, he thinks its somewhat atypical that this committee would be providing the council with its advice and recommendation on a piece of legislation, we do have a policy charge but it is really about how to allocate funding in the three areas he articulated earlier. He doesn’t see the direct connection here, although he can draw his own conclusion about the population that is likely to be most affected by this piece of legislation, I think that everyone has done that, and we all have the same conclusion, which is that this is most likely to affect those that are experiencing homelessness and he sees that connection there in that one of our responsibilities is to provide policy as to how the city will allocate its funding given to it by the federal government to address issues of homelessness. That’s why he wanted to bring to the committee’s position generally, which you hear articulated in the Statement of Interest filed by the Department of Justice, which you hear coming out of HUD now, in terms of how funding priorities and levels may be affected by communities decisions to criminalize homelessness, so he thinks that is particularly concerning to this committee. So he thinks it is properly before us and we can pass along our recommendation as requested. A little odd that is has been referred to us, but here it is nonetheless.
Greg Rosenburg is “officially angry”. O’Callaghan asks if he is officially angry at the city attorney (laughter). He is mad about the letter from the mayor and the drafters analysis. He is worried about misrepresentations in both the documents, the drafters note there was a reference to Honolulu as a model ordinance and if you go to the Coalition that Mayor Soglin references in the letter, the poster child for repressive ordinances is Honolulu. So my reaction is that we are spending a lot of time debating an ordinance where the mayor’s office has misrepresented statements and he thinks that is disrespectful of a lot of people’s time. And we could be talking about something much more constructive, I don’t like getting a letter at the last minute that provides false information, a drafters note referencing Honolulu which is called out specifically in the organization he is referencing here as an example of a bad ordinance and I think we disrespect the issue by spending alot of time on this, he would like to swiftly vote this down and more on to other things that are much more valuable to the community.
O’Callaghan says that it is before them and if there are no other questions, he wants to ask one. The City of Madison has spent a lot of time talking about racial justice and equity and has developed tools to be used to evaluate policies and ordinances in particular and he wants to know if the racial justice analysis has been done on this ordinance and if so what are the results of that report. Peguero says it has not been done. She says she knows they have an equity team and a tool but she doesn’t know how that is triggered. It has not been done on this ordinance. O’Callaghan says that the reason he asked that is because we know that the homeless population in our community is disproportionately people of color, and the latest report that we have from the city (2013) indicates that 79% of the people served by homeless services in Dane County were people of color and we can assume that because of the nature of the ordinance and what it does, it will disproportionately impact homeless persons and he sees a direct connection to the racial equity work that the city professes to be interested in and its concerning to him that it hasn’t been looked at and he knows its not her responsibility, but he wanted to ask the question. Peguero says she doesn’t believe that has been done.
O’Callaghan calls on Phair, Cheeks says they need a mostion. Rosenberg moves, Phair seconds to approve (the need a motion they can vote against, it was clear no one wanted to do it and Phair clarified it was for discussion purposes only).
Rosenberg says he made the motion so they could have a discussion, he is vehemently opposed. He thinks it disingenuous, he thinks there is misrepresentation by the mayor’s office which is extremely disillusioning to him, the fiscal note says no fiscal impact and that is a load of crap. So what are they going to do, go to Monroe Street? People are going to go somewhere, but they certainly aren’t going to go to a day shelter because that doesn’t exist. So I think we should vote this down and move on to solving problems, not repressive terrible measures.
Phair agrees with Greg. He usually tries to resist making a political statement, but he’s not going to do that this time. Because he thinks we are only here because of one person’s imagination in some ways, or something going on, and we really don’t need to be here and he agrees with Greg that this letter was crap. He doesn’t like gossiping like this, there are statements with no evidence and its really frustrating. This would sound bad usually coming out of an alders mouth, but I hardly read this, I looked over it, but I think it’s pointless to even start this conversation and I knew from the minute I heard about it three weeks ago that I was going to oppose this. So I just want to reiterate that we should turn this down vehemently and move on to solving the problem we have and the issues we have and not give too much time of day to this particular thing, because maybe that is the intention of this, he’s not going to get too much inside the head of another person on this, cuz its tricky, lets just vote this down loudly and say that with that, that we are ready as a committee and council and community to work on the issue at hand. He agrees with Ben, Dan your points were amazing and the leadership you showed was impressive, not that I am surprised by that. We have heard for years that there are scarcity of resources, that’s not necessarily true, its time to prioritize our resources and then make priorities and we might find we have the resources, know how and collaborations to solve this problem and other issues we have in the city.
Baldeh says he was on the City-County Liaison Committee where they voted to turn the sign on homeless people (remove people from the City-County Building), and he was sitting there and he sitting here now thinking that we voted with the thinking behind that was that they couldn’t do anything to fix the problem, but that there were other agencies or committees like this one that could do something about it. So today I am here with the Mayors ordinance saying they can sit or lie, but I hope this committee will consider what it can do to help homeless. so we fix this issue, solve it and move on to something else. I think it we have to do something about it, like you said, lets get more serious about this and come up with solutions. Next meeting lets talk about this, we are talking about $50M for Judge Doyle Square, free money, but we can’t put $2 – 4M to fix a human rights issue. I think we should start looking at this, there are people who run into situations and the people who get sent to jail are people of color, right, so I cannot sit here and say criminalize them more, even if they aren’t people of color, they are people of the city, why would I want to criminalize them more? If they go look for jobs and they look at your records, you cannot get a job, so the city or state is responsible for making sure these people ??, but yet they can’t get a job. We have to stop thinking along these lines and make sure we provide for all citizens, we have to be responsible as a government. If our people go to wars and come back with issues we help them. If people have mental issues, we help them. Sometimes it is not their fault that they are an addict, we all run into bad situation or are at the wrong place at the wrong time. So lets be serious about this and come up with a way to fix this, we need to find something that this committee can do and present this to the council as soon as possible. He will vote against it and encourages everyone to so we have a unanimous vote around this, to say we don’t want to waste our time, we want to help our people and if they have reasons we find a way to fix it, that is why people pay taxes, so their cities are good and provide for the citizens that they cannot provide for themselves.
Motion unanimously fails.
O’Callaghan says that he thanks them for their time, he knows that their time would be better spent on other priorities but he thinks this was a worthwhile conversation and he appreciates your contributions to it. (I believe he was talking to the public and the committee members.)
