Earlier this week, Julie Schmit-Albin, Linda and myself spoke with reporter Kay Kemmet from the Omaha World-Herald about the City's handling of different groups and their use of public spaces, and specifically, of course, their handling of the Occupy Lincoln group. Her story was published on Friday; click the image to read it in full.
Ms. Kemmet is a newer reporter and clearly energetic. I must say, her thoroughness in verifying facts and doing research was something I don't recall experiencing in dealing with the media very often, especially in the last couple of of years. I don't compliment Ms. Kemmet because I think her story was biased in favor of our point of view, because I don't think it was, I just want to be sure to point out something positive whenever I have the chance. All I really would like from members of the press is some investigative reporting, fact-checking, and thorough questioning of both sides of an issue. I spoke with Ms. Kemmet three times and at length during two of those conversations. She actually went back to several parties several times, reporting information obtained and requesting responses.
Note that there is one error in the story; Nebraska Right to Life has not attempted to obtain a permit for an event on the Centennial Mall; the annual March for Life event is held at the Capitol and permits are obtained from the Capitol Commission and the City of Lincoln for street closures and a march from the Capitol to the UNL Student Union.
The OWH story exposes some additional flaws in City Attorney Rod Confer's logic. But, the "back and forth" with Ms. Kemmet revealed a number of statements by Confer that were rather...amazing. Not all of those statements found their way into the article. Fortunately, I found an additional source; on October 20, Mr. Confer was interviewed about the whole subject by Coby Mach on Drive Time Lincoln. I have provided a link to the podcast file as well as a typed transcript.
IMPORTANT NOTE: At this point, dear readers, I'm just flat-out fascinated with this subject, not, I've realized in the past week, because there is any way to find an explanation for the inexplicable, but because it is explaining some things to me about the operations of government. It seems like I'm literally watching the way the levers and gears move inside the minds of bureaucrats. Astonishing stuff. I recommend considering this "big picture" when listening to the podcast / reading the transcript.
Beyond this "big picture thinking", though, it seems important to remind, once again why this issue demands scrutiny. It's not complicated.
The FIRST object of government is to protect our God given rights to life, liberty, and property.
Included in our liberty is our right to speak and assemble.
Government does not have the right to pick winners or losers and it needs to protect those rights equally.
Elected officials and those who work for them in the executive branches of government are duty bound to execute and enforce law, not to chuck out some laws and make up others as they go along.
See how these fundamental principles square up with the explanations and thinking of Mr. Rod Confer, Lincoln City Attorney.
Drive Time Lincoln
October 20, 2011
Audio file link HERE
Coby Mach: 5:40 on Drive Time Lincoln, great to have you here.
Time to bring you the latest on Occupy Lincoln. It’s my understanding that more tents have gone up on Centennial Mall in downtown Lincoln. Also, we posted on our Facebook, a, about, a twenty-four, or a twenty foot billboard that has been erected by the Occupy Lincoln folks, uh, down in downtown Lincoln. Joining us to talk about this tonight is the City Attorney, Rod Confer. Rod, welcome to Drive Time Lincoln, good to have you tonight.
Rod Confer: My pleasure.
Coby Mach: Rod, first of all, the huge, the huge billboard, I’m calling it that for lack of anything better to call it, um, is that sign in compliance with City rules?
Rod Confer: No it’s not, and uh, the uh, the Chief of Police has instructed the Occupy Lincoln people to remove that as a structure in the right-of-way, which is not permitted by City ordinances, and, uh, so we expect that to be taken down.
Coby Mach: At, at this point, it’s still up, or you don’t or you’re not sure?
Rod Confer: I’m not sure, I can’t see from here.
Coby Mach: Rod, (laugh) I understand. Rod, why are the Occupy Lincoln folks being allowed on Centennial Mall for free? We learned last night that others, that, well, others have been charged a $125 day fee. Uh, we learned last night that the Occupy Lincoln folks are being allowed to occupy Centennial Mall at no charge.
Rod Confer: Well, uh (pause)
We learned a, a while back that we had some problems, constitutional problems with our exclusive use ordinance, uh, I think that, last night on your program, you spoke to a man from the Republican party who said that in, uh, April of 2010, uh, they paid the fee and sometimes if you don’t complain, uh, then, you don’t - you know, the squeaky wheel gets the grease.
That same month, we had another applicant who came in and wanted to use Centennial Mall, this was for, a, medical marijuana, and, uh, when they were asked to pay the fee, they objected and their counsel cited to us a Supreme Court case, which made it appear that there were some grounds for challenge - to our ordinance under the First Amendment, and since that time, uh, when the City Attorney’s office has been consulted by Parks and Recreation, we’ve advised them not to press the issue and not to charge the fee. Here -
Coby Mach: Ok, now wait --
Rod Confer: you have a --
Coby Mach: Well, now, wait just one second, because when I talked with Parks and Rec. last night before the show, they said that, that, uh, the Occupy Lincoln, uh, that this was the first time that we had not charged a fee. But you’re saying that since, since April of last year, if someone has claimed a First Amendment right, that we have actually waived that fee?
Rod Confer: That’s true. Uh, for example, I think in September we had the Americans for Prosperity, uh, come through town and they were utilizing Centennial Mall, and, uh, objected to obtaining a fee, and we were consulted in our, uh, the law department, and we advised the Parks and Recreation Department that was protected, uh, speech under the First Amendment and for political purposes and that they shouldn’t collect they fee and we didn’t collect the fee.
Coby Mach: So is the City then automatically accepting the liability for injury or, or something even worse then, on this Occupy Lincoln?
Rod Confer: Well, no, uh, under the Political Subdivisions Tort Claim Act, when a, uh, a person is engaged in a recreational activity, then uh, and they don’t pay a fee, for engaging that, in that activity, for example, in the use of the park, then the City is not liable for that situation if they’re, if they’re injured unless the City is grossly negligent and, uh, so there shouldn’t be a - any liability issue there.
Coby Mach: Rod do worry at all as an attorney that we’re setting a precedent here? That now, moving forward, I mean, we might have, God forbid, we might have a racist organization, like the Ku Klux Klan, we don’t want them here, but what if they were to come and decide they were going to camp there too?
Rod Confer: Well, uh, unfortunately (laugh) or, or fortunately, I guess, depending upon your point of view, uh, we’re not allowed to determine which messages we like and which ones we don’t like. When we’re the government, and people want to express their opinions, then the government can’t say well, we’re going to allow this person to express his opinion because it’s an opinion we agree with and we’re not going to allow this person to express their opinion because it’s an opinion we don’t agree with.
Coby Mach: The Republican -
Rod Confer: So -
Coby Mach: The Republican Party last night, who said they were expressing an opinion back in April of last year, said they’re going to be applying for a refund. Will the City be giving them a refund?
Rod Confer: We, uh, we would consider it if they submitted a claim, but, uh, if - if it’s been a year and a half, they’re probably too late. They have to submit a claim within a year in order to get a refund.
Coby Mach: Let me ask about -
Rod Confer: Under, that’s under state law.
Coby Mach: Let me ask about this public right-of-way, which, apparently under this, this ruling that it is a public right-of-way they are allowed to stay there, and to camp and to live there. The space that is in between the sidewalk and a street, in front of your house, the space in between the sidewalk and the street is public right-of-way. Uh, could someone go and camp out in a tent there as well?
Rod Confer: Well, that’s a good question and one that I hadn’t really thought about. We have, uh, ordinances that protect, uh, that prohibit you from camping in streets or in, on sidewalks or from obstructing them and I think that that’s probably the way we would interpret that, that that would that that would not be allowed. Here we’ve got a different situation where it’s not a street or a sidewalk, it’s public property.
Coby Mach: Well, but the, but the, but the, it’s, it’s in between streets and sidewalks, it’s public property, and so, I mean, theoretically in the, in the grass, I’m talking about in the grassy area in between the street and the sidewalk, in front of the mayor’s house, you could go set up a tent.
Rod Confer: We, you know, uh, I -
You hit me cold there, Coby and, and I’m not sure how we would, uh, interpret that, but my inclination would be to say that it would fall within that uh, ordinance that prohibits obstruct- obstructions. We’ve got some rules about, ordinances about what you can have in the - in that sidewalk space, and a tent isn’t one of the things that’s allowed, so we’d probably enforce that ordinance.
Coby Mach: Ok. Uh, there, there’s been some talk that they are - are using electricity down there. That there are outlets on Centennial Mall. Rod, do you know is, is that true, and if those are, are City outlets, uh, are we, are we paying for the electricity?
Rod Confer: I do not know, uh, whether, whether there, whether we have - whether they’re using it, or whether they’re paying for it. I know any - I don’t have any information on that.
Coby Mach: What, what about -
Rod Confer: I do know, I think you mentioned, you mentioned the obstruction, the structure that was being built. I do know that has been prohibited.
Coby Mach: Do we know are, are - is the City going to have expenses from this? Are we going to be paying for any clean up? Or are they hauling out their own trash?
Rod Confer: My understanding is that they have agreed to, uh, take care of that. We’re monitoring the, uh, situation closely, the police are making certain that there isn’t any littering going on or other violations of any city ordinances. My understanding is that they’re in compliance with all ordinances at this time and that and we’re expecting that they’re going to clean up after themselves.
Coby Mach: One, one final question, and I hope this one doesn’t put you on the spot, too. But, if, if KLIN decided we wanted to come down and buy a permit, pay the $125 permit fee, and have a listener appreciation event, because, because you can have non-political events on - on Centennial Mall -
Rod Confer: Mm, hmm.
Coby Mach: If we wanted to pay the $125 permit fee and and utilize that space next Thursday, could we? And could we be assured, or anybody else, for that matter, be assured that they would be able use it or is it off limits while the Occupy Lincoln people are there?
Rod Confer: Well, I think, I think that, uh - that they are there, and they are, uh, engaging in freedom of expression in an area that the United States Supreme Court has said is a traditional public forum where people are allowed to express their opinions, we’re, we would be hard pressed to tell them, ok, you’re going to have to move out so that we can have a paid event in here. Uh, I think that that would be opening up the City to liability under the Civil Rights Acts, and so we’d probably say, I’m sorry, but that space is not available, you can go down and use it along with the people that are already there, but, uh, we can’t give you a permit for exclusive use as long as, uh, it’s being used by someone else in a non-exclusive way.
Coby Mach: So, do you forsee that there would be, that the City Council would perhaps make a declaration at some point that this is a City Park because City parks get to close and people have to leave a City park at some point. Or to, to change the rules? Have you heard from any council members that want to address what’s going on down there?
Rod Confer: I haven’t, uh, I haven’t received any, uh, inquiries other than requests for information as to what is going on. The City could have some, uh, additional rules that aren’t designed to interfere with peoples’ right to express their opinions but have some restrictions on the time and place and manner in which they can express those and, and we can look at those in the future, uh, when, uh, we don’t have a situation, that people are currently engaged in expression, of their rights.
Coby Mach: When it’s not being used
Rod Confer: Pardon?
Coby Mach: When it’s not being used
Rod Confer: Yeah, that’s right. As long as, as long as, if we tried to enact something now, my fear would be that it would be perceived as, a, uh, an attempt to abridge their rights. So, I think that as long as it is in use, we’re probably not going to be moving forward. But, at some future time, we could look at some content-neutral rules that, uh, were not designed to abridge freedom of speech -
Coby Mach: Sure
Rod Confer: but all were designed -
Coby Mach: Sure
Rod Confer: - to protect some other governmental interest.
Coby Mach: Rod Confer, City Attorney, thanks for joining us tonight on Drive Time Lincoln, I appreciate you taking the time.
Rod Confer: You’re welcome.
Coby Mach: 5:53 on 1400 KLIN