Burlington City Seeks Power to Banish People Based on Secret Memo
By William Boardman
"Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government." -- Jeremy Bentham
That's right, rather than explain why the law it passed is constitutional, the Burlington City Council is hiding behind lawyer-client privilege as if it--the council were some private corporation rather than a democratically-elected local government.
The ordinance in question, the "Church Street Marketplace District Trespass Authority," passed the City Council unanimously in February 2013. The council vote followed seven public hearings at which some concerns were raised and addressed, but no controversy arose. The ordinance allows the immediate and arbitrary banishment of people from public streets with no due process of law and no effective appeal process.
In part, councilors with doubts about this ordinance had them assuaged by an analysis of the proposed law written by Assistant City Attorney Greg Meyer in mid-2012, assuring the council that it was within its constitutional rights to ban people from public streets and without authority to do so from the state legislature. That City Attorney's office analysis was, and is, secret from the public.
"Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity." -- Lord Acton
Burlington City Attorney Eileen Blackwood argues, according to Seven Days, that her office's legal analysis is protected by attorney-client privilege, in a construct where both the attorney and the "client" work for the City of Burlington. Protected by privilege, she has asserted, the legal analysis "must thus be treated as confidential."
Since the law went onto effect in March, Progressive Party members of the city council began to have misgivings about its constitutionality. They requested -- and received -- permission from the City Attorney to show the secret legal analysis to an outside counsel, John Franco, who served as a Burlington Assistant City Attorney from 1982 to 1989, when the Mayor was Bernie Sanders, now Vermont's junior U.S. Senator.
Attorney Franco produced a five-page, single-spaced analysis dated June 4, in which he concluded that "this ordinance is neither lawful nor constitutional." He has reinforced this conclusion with a three-page supplemental analysis
Based on Franco's analysis of the ordinance, the five Progressive Party members introduced a resolution at the June 10 council meeting seeking to make the secret city attorney's office memo public.
Democrats fought the motion fiercely. Democrat Norm Blais, an attorney, made it personal, speculating irrelevantly that the resolution derived from "politicians' remorse." Blais went on to argue that "this is not a question of transparency," [there are] sound reasons for having privileged communications with an attorney."
While attorney-client privilege is widely recognized in law, Blais made no effort to explain how it applied to this governmental situation, where Democratic Mayer Miro Weinberger had made a campaign promise of greater governmental transparency.