City to Throw out anything they find valued less than $50?

Don’t forget your backpack or purse on the bus. Don’t leave your jacket sitting on the back of a chair in city hall. Don’t forget your blanket in the park. Trash. Trash. Trash. Ok, well, if it looks like it belongs to someone more middle class, they probably won’t throw it out, but they will if it looks like it belongs to a homeless person, its outta here!

This issue will be discussed at two meetings tonight.
– – Public Safety Review Committee
– – Homeless Issues Committee

3 alders and the mayor have sponsored an ordinance to allow the city staff more ability to throw your belongings out, instead of keeping them for the 90 days the law seems to require. There are 5 main issues that several people have recommended they change, including members of the Homeless Services Commission, but despite the feedback, no changes have been made yet.

Here’s the city attorney’s memo justifying why the city staff should just throw your stuff out.

Date:   June 3, 2013
MEMORANDUM
TO: Mayor Paul Soglin All Alders
FROM: Michael P. May, City Attorney Doran Viste, Assistant City Attorney
RE: Proposed Charter Ordinance on Lost or Abandoned Property, Legistar Item No. 30388

The Charter Ordinance sponsored by the Mayor and several other alderpersons is the product of several years of internal work and consultation by city staff, which included meetings with homeless advocates. It is intended to balance a number of interests:

1. To make sense out of conflicting state statutes;
2. To provide protection to the public by not allowing unattended packages in public places;
3. To fit within the physical capabilities of the City to store property and the resources of City staff to monitor and dispose of property; and,
4. To provide reasonable protection and notice to the public about lost property.

The balances struck in the ordinance may not suit all persons, but City staff believes they are reasonable.

I. BACKGROUND: THE LEGAL PROBLEM.
The City Attorney has been urging the adoption of some ordinance on lost or abandoned property for several years. The primary reason is that Madison has no general ordinance on the issue, thus leaving the City in the position of trying to follow state law. State law on the topic is confusing, contradictory, and antiquated. Even when attempting to follow the procedures in these two laws, City officials may inadvertently violate one or the other. Several years ago, a charter ordinance was proposed, but City agencies and committees deemed the procedures too onerous, and the proposal was placed on file. See Legistar File No. 19169 (Placed on File Without Prejudice, Feb. 22, 2011).

While a number of statutes govern duties imposed on a person finding another’s property, the two statutes most relevant here are sec. 66.0139 and sec. 170.105, Wis. Stats. Full copies of those and related statutes are attached to this memo as an appendix.

This chart summarizes some of the conflicts between the statutes:

Property Covered
Sec. 66.0139 Abandoned Property of any value
Sec. 170.105 Lost Property > $25

Time Before City May Dispose of property
Sec. 66.0139 30 Days
Sec. 170.105 90 Days

Notice Required
Sec. 66.0139 None
Sec. 170.105 Posting in two public places

Method of Disposal
Sec. 66.0139 Public Auction, unless ordinance specifies otherwise
Sec. 170.105 None specified

Weapons or Hazardous Materials
Sec. 66.0139 Excluded
Sec. 170.105 Covered Some Form of Law First

Enacted
Sec. 66.0139 1922
Sec. 170.105 1849

Last Substantive Revision
Sec. 66.0139 1900
Sec. 170.105 1996

Perhaps the most difficult aspect of reconciling these laws is determining whether a given piece of property found by a local official is “lost” or “abandoned.” Ruling in another context, the Wisconsin Supreme Court stated that property is abandoned when there is “a relinquishment coupled with an intent to part with it permanently.” State v. Murray, 195 Wis. 657, 659, 291 N.W. 271 (1928). Thus, determining whether property is lost or abandoned depends on the state of mind of the former possessor of the property, something almost impossible for the public official to determine.

Under the City’s constitutional home rule powers set out in Art. XI, Sec. 3 of the Wisconsin Constitution and sec. 66.0101, Wis. Stats., the City may opt out of a state law if it is not a matter of statewide concern that the Legislature has applied to all cities uniformly. Although applying this test is often a nuanced proposition, the City Attorney has determined that the existence of these disparate state statutes, and the admitted primacy of local concerns about abandoned or lost property, means the City may enact a charter ordinance to opt out of these laws and adopt its own procedures.

II. BASIC ELEMENTS OF THE ORDINANCE.
The ordinance reconciles the conflicting rules in the following way:

A. Property Covered: Any property lost or abandoned or left on public property without the consent of the public owner is considered Lost Property and covered by the ordinance, with exceptions. The property must have an estimated value of $50, which is considered appropriate under current economic conditions. City staff may take possession of property with less value if they think a person might claim it.

B. Time Before Disposal: Thirty days. This is driven primarily by the available space for storage. It is expected that Police, Parks and Engineering will be the main agencies to hold property in this period. A special rule of 14 days is allowed for Metro, which does not have space available for items beyond that time.

C. Weapons, Hazardous Materials: The ordinance excludes any obligation of the City to store materials that may be dangerous or hazardous.

D. Notice Required. The only required notice is to maintain a log of the property for at least 30 days. The log is to be available at a location at the City County Building.

E. Method of Disposal. Public auction, sale on the internet, transfers to non-profit, disposal as trash, or any other reasonable means. After 30 days, the property is the City’s to dispose of as it wishes.

F. Method of Implementation. Within the above guidelines, the city agencies are to develop uniform procedures to implement the ordinance within 6 months of adoption. These procedures will flesh out things such as where the property will be stored, where the log will be available for review, and what might be required to prove ownership of lost property. The procedures might, or individual agencies might, adopt additional measures. The Police Department, for example, has been tagging some items and removing them after 48 hours. The agencies might determine to place the log of property on line.

III. CONCLUSION.
The City Attorney and other City staff believe the proposed Charter Ordinance provides a proper balance of the policy issues at stake. The most important element is to provide relief from the conflicting provisions of state law to give guidance to City employees.

APPENDIX TO MEMO ON CHARTER ORDINANCE ON LOST PROPERTY, 6/02/2013
66.0139. Disposal of abandoned property.
(1) In this section, “political subdivision” means a city, village, town or county.
(2) A political subdivision may dispose of any personal property which has been abandoned, or remained unclaimed for a period of 30 days, after the taking of possession of the property by an officer of the political subdivision by any means determined to be in the best interest of the political subdivision. If the property is not disposed of in a sale open to the public, the political subdivision shall maintain an inventory of the property, a record of the date and method of disposal, including the consideration received for the property, if any, and the name and address of the person taking possession of the property. The inventory shall be kept as a public record for a period of not less than 2 years from the date of disposal of the property. Any means of disposal other than public auction shall be specified by ordinance. If the disposal is in the form of a sale, all receipts from the sale, after deducting the necessary expenses of keeping the property and conducting the sale, shall be paid into the treasury of the political subdivision.
(3) A political subdivision may safely dispose of abandoned or unclaimed flammable, explosive, or incendiary substances, materials, or devices that pose a danger to life or property in their storage, transportation, or use immediately after taking possession of the substances, materials, or devices without a public auction. The political subdivision, by ordinance or resolution, may establish disposal procedures. Procedures may include provisions authorizing an attempt to return to the rightful owner substances, materials, or devices that have a commercial value in normal business usage and do not pose an immediate threat to life or property. If enacted, a disposal procedure shall include a presumption that if the substance, material, or device appears to be or is reported stolen, an attempt will be made to return the substance, material, or device to the rightful owner.
(4) Except as provided in s. 968.20 (3), a 1st class city shall dispose of abandoned or unclaimed dangerous weapons or ammunition without a public auction 12 months after taking possession of them if the owner has not requested their return. Disposal procedures shall be established by ordinance or resolution and may include provisions authorizing an attempt to return to the rightful owner any dangerous weapons or ammunition which appear to be stolen or are reported stolen. If enacted, a disposal procedure shall include a presumption that if the dangerous weapons or ammunition appear to be or are reported stolen an attempt will be made to return the dangerous weapons or ammunition to the rightful owner. The dangerous weapons or ammunition are subject to sub. (5)
(5) A political subdivision may retain or dispose of any abandoned, unclaimed or seized dangerous weapon or ammunition only under s. 968.20.

170.07. Lost chattels, notice.
Except as provided in ss. 170.105 and 170.12, if a person finds 25 or more or any goods having a value of at least 25 but less than 100, and if the owner of the money or goods is unknown, the finder shall, within 5 days after finding the money or goods, give a written notice of the found money or goods to the law enforcement agency of the city, village or town in which the money or goods are found. That law enforcement agency shall post a notice of the found money or goods in 2 public places in the city, village or town.
170.08. Notice and appraisal.

Except as provided in ss. 170.105 and 170.12, the finder of lost goods having a value of 100 or more shall give a written notice of the found goods to the law enforcement agency of the city, village or town in which the goods are found within 15 days after finding the goods and cause a class 2 notice under ch. 985 of the found goods to be published in the county. If no person who is entitled to the goods appears to claim the goods, the finder shall, within 2 months after finding the goods and before using the goods to their injury, procure an appraisal of the goods by the law enforcement agency of the finders city, village or town. The appraisal shall be certified by the head of the law enforcement agency and filed in the office of the law enforcement agency of the city, village or town.
170.09. Restitution.

If the owner of lost money or goods appears within 90 days after notice is given to the law enforcement agency of the city, village or town under s. 170.07 or 170.08 and makes out his or her right to the money or goods, he or she shall have restitution of the money or goods or the value of the money or goods upon his or her paying all the costs and charges on the money or goods, including a reasonable compensation to the finder for the finders trouble.

170.10. Payment to town.
If no owner of lost money or goods appears within 90 days after notice is given to the law enforcement agency of the city, village or town under s. 170.07 or 170.08, the finder of the money or goods shall be the owner of the lost money or goods.

170.105. Chattels found by public officials, employees or agents.
(1) Notwithstanding ss. 170.07 and 170.08, if an official, employee or agent of the state or of a county, city, village or town finds 25 or more or any goods having a value of at least 25 while acting within the scope of his or her official duties, employment or agency, he or she shall transfer custody of the found money or goods to the agency in the city, village or town where the money or goods were found that is designated by the city, village or town governing body to receive found money or goods. That agency shall post a notice of the found money or goods in 2 public places in the city, village or town.
(2) If the owner of lost money or goods appears within 90 days after the notice is posted under sub. (1) and makes out his or her right to the found money or goods, he or she shall have restitution of the money or goods or the value of the money or goods upon paying all of the costs and charges on the money or goods. If no owner of lost money or goods appears within 90 days after the notice is posted under sub. (1), the found money or goods become the property of the state or county, city, village or town whose official, employee or agent found the lost money or goods