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.
Stephen

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.

Best,
Richard Deane

Stephen Marshall
Richard,

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

Stephen Marshall
Richard
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.
Stephen

Richard Deane
So is there no role for personal responsibility?
Regards,
Richard

Richard,

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.

Stephen

Waste Elimination in Public: Proposal to Acknowledge City's Responsibility for Public Health

My vision for Burlington is undoubtedly your vision: a clean, prosperous, safe and relaxed city, a place that people like to visit and like to live in. Where serious people work and raise families, and people who want to have fun can, without concern for stumbling on human waste.

The city rightfully prohibits waste elimination in a public place. It has an ordinance which makes waste elimination in a public place a civil offense the first time, and a criminal offense the second time. And the City is considering an ordinance that would actually make the act of elimination a criminal offense the third time, not the second. So it is less severe, and it allows for “correction” through a restorative justice process. All good so far.

But the proposed ordinance fails to place responsibility for the public health where it belongs. According to this law, as it is and as proposed: someone with a full bladder who ducks behind a bush; someone who has walked five blocks from the restaurant where they ate a meal and were a customer, and only now feels a movement coming on; someone with Diabetes who has a sudden need to urinate; a homeless person who is not welcome in the restaurants and must choose between walking to COTS, City Market or City Hall, and decides to eliminate behind a dumpster or bush, is to blame if they cannot find a restroom within a short walk, while the City suffers no aversive consequences for its failure to ensure that facilities are available.

Under current law and proposed law, only the individual is punished, while for the failure to provide for the public health, the City suffers not at all. In short, current law makes no effort to acknowledge responsibility for the public health, but only imposes costs on the victim of a city without facilities. It is a duty of the government to ensure that facilities are available and open, because individuals cannot do that for themselves. And the law must be written such that there are consequences that pinch the City when the City cannot show that facilities were in fact available, when a charge is levied. The amendment proposed here corrects this imbalance.

The first paragraph of the proposed ordinance, with amendments, asserts*:

(a) No person shall urinate or defecate in any street, park or other public place [developed for human use] except in facilities specifically provided for this purpose. A person who violates this subsection commits a civil offense punishable by a civil penalty of $60.00 (with a waiver penalty of $50.00) for the first offense and $75.00 (with a waiver penalty of $70.00) if the offense occurs less than six (6) months after having been found to have committed the first offense. The penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center. 

I propose to amend the new ordinance by adding here:

The penalty shall be waived and conviction reversed if by evidence the City cannot show that the above named facilities were available and open for use by members of the public without limitation within 150 feet of the prohibited act.

Furthermore, a clarification of public places is necessary to avoid the bizarre situation where someone eliminating waste in a wooded place would be ticketed. I propose to amend the governing ordinance further by adding:

c) For purposes of this section, “a public place developed for human use” shall not include those places not regularly maintained through services of the City or other entity, or is otherwise uncultivated, untended and wild.

Therefore, where there are no bathrooms available, there can be no convictions, and the city is chastised for its failure to provide for public health any time that it receives a complaint of public elimination. When the City has mounted that effort, and bathrooms are in abundance, the person who eliminates in a public place can be justly ticketed and held accountable. The effort to provide facilities would strongly conduce to the relaxed and comfortable place we would like Burlington to be, and effect the argument to any who relieve themselves outdoors “There was a facility for you to use”. We wonder how much of a problem it will be when bathrooms are easy to find.

* Amendment proposed by the Ordinance Committee; [inserted language proposed by myself]; indented: my proposed amendments.

Of Public Health and Waste Elimination. Proposal to address an urgent need.

The issue of public urination is a different kind of problem. It, and its sibling defecation, are biological necessities. The problem with prohibiting public elimination is that nearly every bathroom has been closed for public use. The homeless and those away from home have few choices, and those choices impose severe costs on those who do keep their restrooms open.

Because waste elimination is a biological necessity, unlike drunkenness and lewd speech, the City, indeed the community, has a responsibility to respond proactively to the need. The obligation is to provide facilities, easily accessed and abundant. Interestingly, these facilities already exist, and the City needs only to demand of the owners of those facilities, that they remain open, to remedy the problem.

When the man who was refused access to the bathroom urinated on the floor at Junior’s, he was not merely engaged in an illegal assault on the owner, it was an act of protest and civil disobedience. His act said “I am a human and I need a place to eliminate. Bathrooms must be provided.”

These issues have been part of the urban landscape for millennia. There is simply no escape from the imperative to provide a real solution. In San Diego this year, there was an outbreak of hepatitis A due to unsanitary conditions on the streets. The solution of the city, after cleaning up the mess, was to provide toilet facilities to the homeless who were living on the street. Burlington can provide porta-johns on every corner, or demand that its establishments of public accommodation allow any person to use them. Or continue to inspire the animosity of its homeless and away from home, who will naturally vent their anger in passive-aggressive use of the streets to eliminate their waste. 

It would be a tough debate to win. Support for individual rights is strong. But when individual rights are prioritized over the well-being of the community, it is only logical the individual would seek their private gain. No one person can justify the expense of this public health burden, when no one else is expected to. But when everyone is required to allow access to bathrooms, the expense can be distributed across all providers, and then the minimal cost can be justified. And when the community declares that all must act together for a common good, all can be better off, including those individuals. Because toileting is a public health issue, everyone must cooperate.

I have several suggestions to make it work. To distribute the costs where they come to rest, I propose a subscription cleaning service, contracted by the city to replace the cleaning that is already done by merchants, paid for partly by the merchants (they need clean bathrooms), and partly by the City (not every user of a facility is a customer). Every facility open to the public contributes to the service equally, but the service is delivered according to the cost of cleaning. Heavily used bathrooms that require more attention will get more attention. Those who allow bathrooms to be open will be rewarded for serving the public good by getting more attention for their bathrooms. Included in this service is regular pick up of syringes. People will be happier, no one will have cause to urinate on the street, and the merchants will find this an agreeable solution. Any place of public accommodation which wishes to opt out of the cleaning service may, but they may not opt out of allowing the public to use their restrooms.

Moreover, because vandalism is known to happen, and other plumbing problems can occur, an insurance policy would be made available, to insure against the expenses of damage to the facility.

Human hygiene facilities are a public health necessity. We cannot simultaneously prohibit people from eliminating waste in public places and also not provide publicly acceptable locations for doing so. We long ago put a stop to disposing the contents of bed-pans on the streets. We need to finish the public health job by making public waste elimination unnecessary. We must provide facilities. We have facilities, which are now closed to the public. We must make them open. We must mitigate the cost and risk for those who provide those facilities.

Whatever the opinion of the Committee on this proposal, public urination and defecation is not a behavior problem to be addressed by prohibitions. It is a public health issue to be addressed by providing facilities. I ask that this committee put in its proposal that all punishments for public urination and defecation shall be waived in any case where the city cannot show that facilities were available for the defendant to use.

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Diversity Conversations

Public Safety Committee of the City of Burlington will meet Tues day night 6:00 City Hall CR 12 (1st Floor). You are welcome to attend, and there will be opportunities to testify. This is supposed to be a "working meeting", so I am not sure how restrictive they will be.

This committee is where the meaningful responses to the City Council resolutions will be discussed before the ordinances from the Ordinance Committee are debated.

(Some will remember that the City Council passed two resolutions on August 28, one to ask the Ordinance Committee to write a bill to stiffen penalties for misbehavior on Church Street, and one for the Public Safety Committee to consider alternatives to the Police response. They are thought of as operating in tandem by members of the Council, who want to consider them together as a package.)

You are welcome to submit your ideas in writing before the meeting, and then testify at the meeting. Please let me know if you need help being heard, this Tuesday or at any other time.

By Tuesday, some or all of my proposals will be posted on the City's web site. Finding these documents can be difficult, so I will try to get link. Again, please get in touch with me if you need help.

When I submitted my proposals to the City Attorney, I added a new proposal in the email cover letter. Referring to the previous Ordinance Committee meeting, I wrote:

As witnessed at their meeting, there really was no room to discuss the merits of the using the police power to approach these issues. That undoubtedly will come up at the City Council meeting over the proposed ordinance, and by implication at the Public Safety Committee.

Meanwhile, many folks are waiting to see what the Public Safety Committee will do. Language I heard more than once at the Ordinance Committee was "Correcting Behavior", which seems necessary for some behavior, but puts on display the privilege of deciding what is acceptable and what is not. I want to address these issues not through control, but through conversation and healing.

The City is both powerful and powerless. It's primary modality of effect is the police power, the right to make law and enforce it. And yet despite enforcement, people continue to do things contrary to the public safety. (In fact , the City has found that there are numerous socially offensive behaviors which cannot be regulated, and must be dropped from the City's code.) The resistance of our community to use of the police power as a first response to socially offensive behavior is both amazing and powerful. We have an opportunity to explore solutions which are not coercive, and which are not degrading, but seek to build relationships and healing between people who do not understand each other. While the country on whole enhances police powers and criminalizes homelessness, we have a chance to steer in a different direction.

The issues we are facing call for a public conversation about what it means to live in a community with other people; with people who are different in wealth and culture; people who come from different places, and have learned different ways to survive; with people of different educations and levels of education; it calls for diversity education across economic tiers, and it calls for us to address each other as persons, as members of the community, with respect. We are a diverse community in our way; we need to talk with each other if we want to remain a community.

I propose Diversity Conversations over a period of years, led by a working group which gathers activist, faith, non-profit, for-profit, and public sector, leaders into a group that can plan multiple events and conversations. It could include conversations about how the community and the government work, what people expect from each other, how the institutions that are meant to serve people can also hurt them, and so forth. The City's own NPAs and CEDO, the Peace and Justice center, the Community Justice Center, the various faith groups, the refugee resettlement program, and numerous others, are doing similar sorts of things, and with all of them and us working as a community, this effort could scale up to include all of the sub-communities of our city.

The point of these conversations is to bring diverse and sometimes alienated communities together to get to know each other, including but not limited to the Community of the Poor and the City's wealthiest. We want to make ourselves human to each other, so that we can change the focus of City life from merely living separate lives within a set of laws, to participation in a community within a shared sense of belonging and mutual respect, and thus address some of the marginal and unfortunate behavior through positive relationships, avoiding the use of the police power, which is so limited in what it can really do.

Quality of Life - For Whom?

The Ordinance Committee of the City of Burlington will meet again on Tuesday at 5:30 at the Fletcher Free Library, in the Community room, to discuss "quality of life issues" and the ordinance they were directed to write.

The City Attorney and the Chief of Police have agreed they already have the powers they wanted, so we can't prevent them from making the law stricter. In fact, as a result of their review of the law, they have asked to remove numerous infractions that they find to be unenforceable, and to rewrite some laws to make them clearer, and make convictions easier to get, and making the laws, arguably, more just. The police chief even argued, to bring Burlington Law into conformity with national trends among other cities ("sister cities" Houston and San Fransisco!), to increase the number of civil infractions required before transitioning to criminal code, from two (as is now the case) to three or more. This is all good.

But we need to watch the details. Jay Diaz of the ACLU has identified some issues. And there are many who are cynical enough about city politics and law enforcement to argue that this is a charade to get us to drop our guard. Therefore we must be watchful and alert. Without cynicism, I agree that we must remain vigilant. Please be at the next meeting of the Ordinance committee, to hear what the members are thinking.

So the community of the homeless and its advocates have a fight in principle, not in law, and the Ordinance committee is not the only place for us to argue these principles. Numerous advocates, including Vermonters for Criminal Justice Reform, Democratic Socialists, the ACLU, and folks on the street, have responded (to the push to give the police more power), that more power is not needed, that coercive responses are counter-productive, and that the most helpful responses provide better services.

My argument generalizes this thinking. Use of the police power is inherently destructive to the social fabric because it inserts violence into the relationship between the person being subjected to that power (with a ticket, citation or arrest) and the community the police hold the power of. There are legitimate reasons and instances to use the police power, but because of its corrosive effects, it must be used sparingly, as the last resort, after all other responses have failed. In contrast to "legal", I label these alternative methods "cultural" and "social", and in contrast to "coercive" and "corrosive", describe them as "healing". As the first resort, I advocate "Cultural and Social" responses.

Cultural and social responses to "quality of life" issues are proactive, bring respect for every individual to the conversation, and support the integrity and right of choice of every individual. They seek healing and compromise, and seek to restore members of the community who are otherwise under-resourced, alienated, and angry, to full membership in good standing. They assume that everyone is a member of the community and wishes to be a positive force for the well being of the community, and they provide resources to support that membership. Not everyone will respond to cultural and social treatments, but this is a discussion of first responses, not whether to use the police power.

The City is, like all governments, a creature of law, and that institution to which we entrust the police power. And that place that receives the police power will be the government. If it is democratic and responsive to its citizenry, if it does those things which justify its existence, the government will address their needs and express their highest interests, and will be that place where the one, entire, community gathers to take care of itself.

But it is in the natural way that people are, that when you are the legal entity with police power, that when as a leader you sought power to have an impact on people's lives, that when among the constituents you converse everyday are not the poor and disenfranchised, that when your habit everyday is to talk to powerful people, you may tend first to think of enforcement, before you think about services. You might first think "How do I get rid of these quality of life nuisances?", before you ask "What can I do differently to get a different result?" or "What are the legitimate needs of this community?". Probably, such introspection is not natural when your days are awash with the details of governing, and balancing an always over-tight budget. Our introspection might be that if the government speaks first of "correcting behavior", through enforcement, then we might wonder whether our leaders are fully mindful of their democratic responsibilities.

Every person, whether poor, angry, un-housed, mentally ill, enmeshed in criminal culture, addicted, un-lucky, disabled, gender non-conforming, is still a citizen and member of the community. Our first, proactive choice, must be to ask how to heal the relationship between that person and the community in which he or she resides, and even, "How can I improve the quality of life of those who live in poverty and scarcity?". Every democratically elected or appointed leader must ask "How can I achieve my goals without using the police power?". It will have a dollar cost, and the benefits will be measured in the quality of life that we all enjoy. (I have numerous proposals to answer this question, not posted here.)

It is our duty, as citizens, to demand cultural and social responses, that we do not allow the government, the City, to apply coercive methods before it has made a full-fledged effort to address the social and cultural issues that become "quality of life issues". You have an opportunity to remind the City of these principles Tuesday night (12/5). These meeting are lightly attended. You can have a big impact.

Then watch the City calendar at www.burlingtonvt.gov/Calendar for other meetings where they discuss the business of the people. Go to them. Be a reminder of democracy in action. Commit to  attending one meeting per year, per month or per week. Whatever works for you. Our lives will improve, and you will feel more like a member of your community.