March 14, 2004
Commissioner Francesconi's Constitutional Switcheroo?
Newly-Revised Parks Exclusion Ordinance Heads To Council
This Wednesday, a new version of an ordinance to re-write the City's parks exclusion law will be presented to the City Council by Commissioner Jim Francesconi.
On March 3, the Commissioner pulled the original ordinance after a judge declared the law unconstitutional and The Oregonian slammed the law in an editorial.
At the March 3 session of City Council, Commissioner Francesconi stated that the ordinance as it existed at that time was "not something I can support" -- despite his being its sponsor.
Being presented to Council this Wednesday is a new version of the ordinance which retains elements of the version which was pulled -- such as specifically providing a definition of "Park Officers" within City Code, increasing the period of exclusion imposed for new violations by those individuals who have been excluded in the past, providing for a clearer process of appeal to the Code Hearings Officer, and allowing for waivers from the Commissioner in charge.
Addressing some of the constitutional concerns arising from the court case, this version is reported also to limit the ability of the City to exclude people from parks for acts not committed in parks.
It also is expected to prohibit exclusion of "any person lawfully exercising free speech rights or other rights protected by the state or federal constitutions," unless that person also happens to commit some other act that is otherwise clearly prohibited.
But after the original ordinance was pulled, we found ourselves wondering why these constitutional issues were not addressed the first time through. Here's what Michael Harrison from Commissioner Francesconi's office says about this:
During the course of the legal challenge, Jim and the Parks Bureau recognized that it was important to make changes to the exclusion ordinance. Since court cases can take long periods of time to be resolved, Jim and Parks decided not to wait until the verdict to make changes. They figured, rightly, that they could always go back and make additional changes if they were needed, after the verdict. However, because the verdict happened to occur so near the date of Council consideration, Jim changed his mind and decided Council should only have to consider this issue once, rather than bring two ordinances forward in a few short weeks.
While we have difficulty with this explanation purely on ground of an efficient use of the City Council's time, that's not our major concern.
The first attempt at a new ordinance, prior to the court ruling and the newspaper editorial -- which both publicly slammed the City's existing law -- only addressed matters of further precision in the execution of the exclusions, as well as somewhat fleshing out existing appeals processes. Constitutional concerns were nowhere to be seen.
However long the City had been working on a new parks exclusion ordinance, the original version that was pulled on March 3 existing in that form at least as early as February 19, the date included on the ordinance beneath the name of a Senior Deputy City Attorney working on its drafting.
That there were constitutional concerns was certainly no secret, yet the Commissioner's strategy appears to have been to wait until his hand was forced before addressing those concerns.
All of which strikes us not as an innate concern with constitutional issues -- as Francesconi insinuated in his comments at the March 3 session -- but with a more disappointing approach of not worrying about the constitution until forced to do so by outside forces.
"Well, that's the part that alarmed me," Francesconi said of the constitutional issues at the time, "so we were trying to address it beforehand. We want to do more in that regard." But that expressed alarm apparently was not significant enough to prompt the addition of language to address constitutional concerns when the ordinance was originally drafted.
It doesn't help our sense of unease that three of the other members of the City Council say that didn't even learn that the original ordinance was being pulled until the day before the March 3 session of City Council, while the fourth says they didn't know until Commissioner Francesconi announced it at Council.
That's not just after the court's decision on the law, but the day immediately after The Oregonian blasted its constitutional problems.
Perhaps it's just the cynic in us, but when constitutional issues only become important because both a judge and the City's leading newspaper slam the City's current law, we're not particularly reassured.
That sounds more like a political consideration than a policy concern. We are less than two months away from a primary election, after all.
Comments (1)
The One True b!X on 14 Mar 2004
Strangely, this item shows up twice on ORblogs, even though it was only posted once. It's just that I forgot the question mark in the headline the first time I published it. Oh, well.