DHSTF Misled on Need to "Assess Codes"

Revised: January 2019

By Sarah Owens and Michael Livingston

Chapter 95 in the fall of 2017 (highlight=repealed)

Cara Kaser, Ward 1 Councilor:  "I think it's always good if we look at what codes and ordinances are on the books.  In general.  I don't want, you know, if we pass a law in 1897, I think we should probably look at that.  Or a law that we passed in 1987."

That was Councilor Kaser's explanation for wanting the DHSTF to recommend that the City "Assess Salem codes and ordinances to ensure that the City is appropriately balancing the rights of those who live, work, and shop in our downtown, and providing the Salem Police Department with the tools they need to address behaviors that negatively impact others."  She gave that advice at the DHSTF's last meeting on August 1.  She was, she said, concerned about ordinances the City doesn't enforce.

Cara:  "We have some ordinances that are just not enforced, and we just don't use them, so I'm looking more kind of broadly at having City staff look at those, what are those ordinances that we could examine and see if we...need to make some changes.  And that's what I think this recommendation is doing."

DHSTF Facilitator Kristin Retherford agreed.

Kristin Retherford, UDD Director:  "We do have some ordinances that are very out to date [sic].  They aren't necessarily enforceable anymore, so that certainly should be revisited." 
* * *
Sandy Powell, Olivia's:  "Some of the ordinances may be totally out of date, and need to be changed.  Well, I can say that there are ones that I think are totally out of date and need to be changed."  
* * * 
Christy Woods, Runaway Art Studio:  "We want the City to look at the codes...because if there's old ones, why not get rid of them?" 
* * *
Kristin:  "I would expect it [the code assessment] would look at codes like the one that I mentioned, we've got some old language about panhandling.  I think it's referred to as "begging" in the code, that is really out of date, that would apply to downtown.  So, this isn't going to be, I think, a universal look at parking code, and everything.  It would be limited in scope to codes impacting the downtown."    

 

A year ago, when the sit-lie ordinance was under consideration, the Salem Revised Code did indeed have a provision titled, "begging."  It was found in SRC Chapter 95 (see above left), which is found in Title VII, "Offenses." Chapter 95 covers "miscellaneous" offenses.

Summary of Changes to Chapters 95 & 96 of Title VIII

However, last December, the City Council repealed the "begging" provision, along with a number of other provisions (highlighted top left), like "vagrancy" (see below) that were found to be archaic or unconstitutional, according to the staff summary (see above).  

SRC 95.560, repealed as unconstitutional

Ordinance Bill 25-17, which made these changes, was the result of the City's having contracted with Municode, Inc. to "host" the Code and perform "codification services." As part of those services, Municode undertook a "comprehensive legal review of the Code, and proposed several changes to clarify existing code language, standardize formatting, and ensure that the Code is consistent with the requirements of Oregon and federal law."  (Emphasis added.)  Staff considered the changes to Chapters 95 and 96 to be too insignificant to mention in their report to Council, however.

Arguably, that makes it understandable that Councilor Kaser, who seconded the motion to enact Ordinance Bill 25-17, didn't realize the provisions relevant to the issues before her task force had recently been overhauled.  However, it's much more difficult to understand why the City Attorney, who was sitting in the back of the room during the meeting on August 1, and heard all that was said -- it's much more difficult to understand why he did not at intervene in the conversation, and inform the task force that they were under a misapprehension about the need to assess the code for provisions that were archaic or unenforceable, that the "begging" and "vagrancy" laws had been repealed, along with several others.

Persuading the task force there was a need to "assess codes" plainly allows those who secretly or otherwise prefer a law enforcement approach to the situation downtown to achieve indirectly that which they were unwilling or unable to do directly, namely, persuade the task force to recommend revising the code to ban camping.  The "assess codes" recommendation is, as we have noted previously, a Trojan horse built to carry a camping ban.

Whether the DHSTF was deliberately misled about the need to "assess codes" hardly matters at this point.  What does matter is that no more time be wasted on that particular nonsense.  The City Attorney is very well aware what's in the code and what's not, even if the citizenry doesn't.  As we have pointed out previously, his office "assessed codes" in the summer of 2017, and the Council enacted changes in accordance with that assessment, with the exception of the sit-lie ordinance, which the Council refused to enact.

If the Mayor or whomever wants to move enactment of a camping ban, let them have the political courage to do so, now, without further pretence or manipulation.  Only the movers should consider, if SRC 95.560 was facially unconstitutional, how legal is a camping ban going to be?  As Jimmy Jones, put it, "I generally do not understand how sit-lie is legal in any context in Oregon, if the vagrancy law is largely unconstitutional." Maybe the Council will ask Dan to explain when he presents the camping ban.