Friday, December 29, 2017

Reinforcing Corporate Responsibility

Dear Chip, Ali and Sharon,
CC: Richard Deane, Sara Moore, David Hartnett,

I hope you have seen the amendments I have proposed. Essentially, because public health is a responsibility of the City, and the City has not before now recognized this responsibility, I am proposing a mechanism which will return granular, particular, information to the City, with regularity, bringing this responsibility into consciousness whenever the City fails, or succeeds, in some way, to fulfill that responsibility.

Besides providing information to the City about where there are and are not bathrooms for people to use, it is only just (as in "fair") that if someone violates the prohibition against elimination-not-in-a-facility, but there was no facility for them to use, that they are not faulted. In all reasonable compassion, what's a person supposed to do?

The Language I have proposed merely allows a court to dismiss the charge if there was no bathroom for the defendant to use. That's the biggest part of what it does.

The information part of this is that - whether the police decide to not give a ticket because there was no bathroom, or they do and it is successfully challenged in court - the City is reminded, and informed, that there are locations where bathrooms are not available. In the absence of allowing the charge to be dismissed, the City may be very enthusiastic about providing bathrooms, but not know where they are needed and not have much motivation to ensure city-wide coverage.

It's a fair trade-off. Waste elimination in a-place-that-is-not-a-facility is prohibited. Someone who does, where a bathroom is available, can be ticketed and convicted. Someone who does, where a bathroom is not available, is not punished, but the City is reminded that there is a gap in it's network of restrooms, and where that gap is.

The argument could be made that this amendment is unnecessary because the necessity defense could be used. Actually, the necessity defense would require the defendant to prove a negative - that there was not a single public restroom within a reasonable distance of the incident. How could the court be sure? By placing the burden of proof on the City, this proposal demands that a list be created, and maintained; that that list be available to the public; and when a defendant challenges a ticket, that the plaintiff only needs to show there was one, actual, restroom within an easy walk of the incident. the City would not need, as the defendant would, an inventory of closed restrooms. It will be far easier for the city to create and have such a list, than for defendants to prove there was not one restroom available. How could anyone ever be sure? But it is possible to know if one bathroom is open.

Already we hear that the Burlington Business Association wants to create that list. So even that part would not be very difficult. And this amendment, by placing the burden on the City to show where the public bathrooms are, would abet the development and distribution of that list.
The small part of what these amendments do is create a loophole for people taking a walk in the Intervale and needing to eliminate in the forest. You will read that I have tried to be clear that a developed, cultivated or tended location (such as a trail in the woods) is still prohibited. Only a location away from public travel would be excepted and acceptable.

I hope you agree this is a good idea. This amendment merely asks the City to take responsibility for this aspect of public health, and makes enforcement, of a necessary ordinance, just.

Richard Deane
Stephen -

Thanks for your communication. I agree that increased access to public facilities are a must, whether those restrooms are provided by the city itself or incentivized for inclusion in private development.

How do we address another group specifically recognized for public urination - students on their way back from downtown and using the neighborhoods as their toilet?

They are distant from public facilities yet should not be able to appeal a civil citation based on the 'too great a distance' provision.

Richard Deane

Stephen Marshall

Is the argument of your question that people wandering home from a bar at night don't need to pee? Should have known better and peed at the bar? Should have in their drunken state planned better? When you ask "What are we going to do about drunk students, wandering back from the bars at 2:00 in the morning?", you are acknowledging a problem. But this is not a problem that should be simple and easy to fix. If you have students who get drunk and pee on their way home because you accept that there are businesses that operate to sell beverages and the students avail themselves of those businesses, what are you going to do about the root causes of public urination? Close the business? You can't. Punish each next wave of students coming through the city, and hope it helps? You know that hasn't worked either.

The fact that these are difficult issues does not absolve the City of its duty to search for solutions. Public drunkenness is a difficult problem, and we accept the problems that come with it because the solutions are usually worse. I don't know how to improve this explicit situation, but this amendment proposal isn't meant to find solutions. It is meant to compel the City to search for solutions, and alleviate the injustice of needing to go, and being unable to find a facility. Now if the problem is that they have facilities and don't use them, you have another problem. And this amendment gives you information about that, too.

I am merely proposing that the City accept responsibility for the absence of answers to your question. Is it the responsibility of the individual to ensure that there are restrooms? Is it ok to make it a crime to engage in a behavior that is necessary to biological existence, without providing locations where it is acceptable to engage in that behavior? It is a simple logic of justice. How can a just society compel people to break the law? The complement of prohibiting public elimination is accepting the task of ensuring there are places where it is not illegal. That is the City's responsibility. These amendments merely codify that responsibility and creates a consequence for failure to fulfill it.

So the core of my argument is to compel the search for solutions, not to provide them. The core of the argument is that, as a public health issue, it is actually the responsibility of the city, through whatever strategies it deems potentially helpful, to grapple with these questions, and that the forgiveness option is merely the pin-prick of conscience to call attention to the absence of solutions. That it is difficult to find solutions to these problems is not a reason to not accept responsibility for the public health.

The problem wasn't invented by this proposal. That problem was invented when the community demanded, expressed through its law, that people "Do not do it in public.". Well, that is reasonable enough, in fact a matter of public health! But if you want to say "Don't do it in public.", you need to answer the question "Well then, where and when can I?". If you have the law, you must have the answer, and the amendments I have proposed simply remind the City to provide answers.


Stephen Marshall
I just reread your letter. I guess I don't think there should be any exception to the "Too great of a distance" rule. This proposal is about compelling the City to find solutions to a problem that needs a solution. There are plenty of creative things that can be done, but right now I want to focus on the logic of the proposal, and not on the ostensible solutions.

Richard Deane
So is there no role for personal responsibility?


There absolutely is a role for personal responsibility. The law prohibiting outdoor elimination is clear. According to this amendment, where there are restrooms, people are held accountable.
But what does personal responsibility look like where facilities are not available? What are you imagining people are supposed to do? The problem is that the existing law creates a natural conundrum. It holds people personally responsible where they have no recourse to a legal solution, which can only be created by public action. This amendment balances the personal responsibility with the corporate responsibility.

Your tone suggests that the police solution is a solution. But plainly it is not. Whereas enforcement may be effective if there are facilities, it means nothing more than criminalizing natural behavior (and generating animosity between the police and the public) where there are not facilities. The other solution is to recruit or build facilities. But what is the motivation of the city to do the work? and how does the city know where those facilities are most needed?

I suspect you are worried people will use the distance exemption as an excuse to eliminate when they might have held their waste a little longer, and found an appropriate place to eliminate. Playing the law in this way is possible and unfortunate. But there is a larger principle at play, and I wonder if that bit of gaming is sufficient to derail the larger purpose of this amendment. Let us remember that even if there are irresponsible people who would game the proposed law, there are responsible people being hurt by the imbalance in the current law.

The problem with existing law is that it enforces personal responsibility without admitting corporate responsibility. The point of this amendment is for the City to claim corporate responsibility. It is to balance the equation. If people "get away" with offensive behavior because of the distance exemption (a number that is adjustable), that is the cost that is intended to motivate the city to action. The point is not to undermine personal responsibility, it is to reinforce the corporate responsibility to ensure that facilities are available.

I am trying to persuade you that the present law is unbalanced, unfair, and doesn't require the City to attend to its public health responsibility. This proposal corrects that imbalance. When, due the motivating effect of the law, there are facilities available, personal responsibility will be the default status of any person who gets a ticket. This amendment gives you a chance to tell the public and the City that the public health and availability of facilities is its responsibility. Are they not? And can citizens really be expected to behave responsibly where the civil law contradicts natural law?

Thank you for your engagement and willingness to challenge me. I hope I have answered your question.