City Staff to Recommend Council Advance Sit-Lie to 2d Reading

By Sarah Owens and Michael Livingston

City Manager Steve Powers' draft staff report on proposed Ordinance Bill 10-19 (aka Sit-Lie, Jr.) (embedded below), which was obtained through a public records request, recommends that the City Council "conduct first reading...and advance to second reading for enactment." 



The staff recommendation is likely to encourage proponents of the bill, and discourage those who oppose it, many of whom are the target of the proposed ordinance bill, which is supposed to "clean up" public spaces, downtown in particular. 

The staff report purports to summarize the "public outreach and comments" given and received during the course of three City forums, but, in fact, it just summarizes the 43 written comments received at the last "open house" style forum.  Those comments would indicate that community opposition to the ordinance is roughly 3 to 2.  Opposition expressed at the first two forums was substantially higher.  See "City Fumbles Sit Lie Forum", "Sit-Lie Jr Loses at 2d Forum", "City Schedules Sit-Lie Jr Round 3" (for the cartoon version), and "Salem Talks About Sit-Lie: Forum Excerpts" (for a visual podcast of the voices heard at the forums).    

Comment at p. 53

The "for" comments summarized in the report indicate that proponents believe the ordinance will drive people experiencing homelessness out of downtown, thus putting an end to "odors, property damage, urination and defecation, panhandling, litter, and aggressive or threatening interactions."  (See the staff report at page 26.) 

The summary of "against" comments more or less reflects what was said at the first two forums.  (See the staff report at pages 26-27.)  Copies of the comments are attached to the  report, but not all are legible. 
 
Not much new in the rest of the staff report.  It perpetuates the line that police somehow need a "lawful reason" or "lawful opportunity" to contact "individuals in need of services."  (See the end of the summary section on page 2.)  And, it reflects staff's confusion about how the ordinance will be enforced inside Crime Prevention Districts (of which there are two in Salem, one downtown and one north of downtown).  (See the facts and findings section, beginning on page 2 (blue text = edits).) 

The report refers to "Exclusion Zones" and "exclusion waivers", but the ordinance uses the terms "Crime Prevention Districts" (CPDs) and "variances."  Readers are exhorted to examine the language of the ordinance itself and not to rely on the City's interpretations, which have been proven unreliable at times.  See, e.g., Brynelson, T.  "Citizens question legality of Salem council's appointment." (October 24, 2019, Salem Reporter.)

Violations

 

According to the language of the proposed ordinance, a person found sitting or lying on a City sidewalk in violation of the ordinance must first be told s/he is in violation.  The draft staff report states that the suspect will be "encouraged to take advantage of available resources", but there is nothing about that in the ordinance.  If the suspect doesn't move along within a reasonable time (15 to 20 minutes, per Deputy Chief Skip Miller), then police may take enforcement action by issuing a citation to appear in court.  Failure to appear in court at the appointed time can result in an arrest warrant. 

If the violation took place in one of Salem's two CPDs, an exclusion notice is required to be issued (see proposed section 95.830 at page 24 of the staff report).  An exclusion notice is an order to stay out of the CPD for 30 days.  City staff, including the City Attorney and police, said repeatedly at the forums that citations are issued outside a CPD, and "exclusion orders" are issued inside a CPD.  The edits to the draft staff report reflect there is disagreement, or confusion, among staff as to whether an exclusion notice is required when a violation is cited in a CPD.  However, both the proposed ordinance bill (proposed section 95.830 at page 24 of the staff report) and the existing ordinance (SRC Chapter 95.740) state that the person cited "shall be prohibited" from being inside the CPD.  Violations of an exclusion notice can result in immediate arrest for criminal trespass and exclusion for an additional 30 days.  (See proposed section 95.850 at page 22 of the staff report.)

A person who's issued an exclusion order may seek a "variance", which is formal, written permission to travel certain routes within the CPD at certain times for certain purposes.  There is a notable difference in the way the staff report describes the process for seeking a variance and what's described in the ordinance, raising questions about whether current practices comport with the requirements of the ordinance.  (See proposed section 95.840(b) at page 20 of the staff report.)  In any event, a person who violates the terms of a variance is subject to immediate arrest for criminal trespass and "shall have the exclusion extended an additional 30 days."  (See proposed section 95.850 at page 22 of the staff report.)     

The penalties for failure to comply with citations and exclusion notices, often referred to as "collateral effects", typically create additional barriers to accessing housing, employment and social services.  Barriers which, by the way, Salem spends General Fund and federal dollars to remove.

Measuring Success

The draft staff report offers no evidence, assurances or predictions that the proposed ordinance will reduce the incidents of, or complaints about, "odors, property damage, urination and defecation, panhandling, litter, and aggressive or threatening interactions."  Nor does it offer assurances or predictions that the City will not be sued after enactment, and the American Civil Liberties Union and Oregon Law Center are known to be monitoring the situation.  Councilors who support this bill must weigh the likelihood of litigation and the certainty that the ordinance will further stigmatize and oppress the most vulnerable people in our community against...what, exactly?  A vain hope that it will somehow "clean up" downtown and put an end to complaints?  Hasn't happened anywhere else that sit-lie ordinances have been enacted, and Salem's not likely to be any different.

The draft staff report gives councilors no articulable, evidence-based reason for concluding that
sit-lie is likely to do more good than harm.  Council should therefore reject staff recommendation and the ordinance bill, just as they did in 2017.