City Attorney Lies to Assembly Regarding Sidewalk Ordinance (Update – Repeal)
Mayor Dan Sullivan is no stranger to controversy. Whether it’s creating a paid position for his personal “party planner,” cashing an illegitimate $193,000 check for a non-existent life insurance policy, pink slipping employees Christmas week, collecting $12,000 for being “mayor elect” before he actually started doing his job, vetoing an ordinance that would allow the LGBT community equal rights in housing and employment, disbanding vital firefighting services and axing public safety positions… I could go on.
One controversy that’s been brewing since last summer has involved an ordinance that Mayor Sullivan has ushered through the Assembly. This particular ordinance is aimed at a man named Johnathan Martin who has decided to protest the Mayor’s egregious attitude toward the homeless by camping out in front of City Hall. Sullivan was not pleased by the fact that sitting on the sidewalk was, in fact, legal. Later Sullivan said he might consider meeting with Martin if he cleaned up and made himself presentable for an audience with His Excellency – The Mayor.
The new law would make it illegal to sit or recline on sidewalks in downtown Anchorage from 6 a.m. to midnight on weekdays, and until 2:30 a.m. Friday and Saturday nights, with exceptions for medical emergencies, and events like parades that have a permit. Violators could be fined up to $100.
When the sidewalk ordinance came before the Anchorage Assembly, there was more than one Assembly member on the fence. Was it right to create an ordinance which was basically the Mayor’s way of dealing with one man whom he considered a nuisance? Did it infringe on first amendment rights? How would this affect the Occupy Anchorage protesters who were in Town Square Park right down the street from City Hall? Law enforcement didn’t seem to think the ordinance was necessary at all. What about the cost of enforcement of the ordinance, and what did that say about the Mayor’s supposed desire to shrink city government? And then, of course, there was always the possibility that the ordinance would not stand up to a legal challenge. That would mean bad PR, embarrassment, and big legal fees. Nobody wants that.
These were all valid points to consider, and the Assembly had been thinking about them since the first draft of the ordinance came their way during the summer.
As last Tuesday’s Assembly meeting, there was public testimony (all of it negative) regarding the ordinance and a discussion before the vote. During this debate, Assemblyman Dick Traini and the City Attorney Dennis Wheeler had the following exchange (3:59:30):
Traini: Dennis, since this will end up probably in the court system if it’s approved, if the ACLU takes it to court, is it defensible from your point of view?
Wheeler: This ordinance was run by the ACLU.
Traini: They haven’t had any problems with it?
Wheeler: They do not have any problems with it and, uh, that’s primarily because we crafted it after a law that was already challenged in court and upheld.
Traini: Because I’m wondering why ACLU’s not here. Normally when something like this comes forward if they have a problem they’re here testifying so I appreciate that information. Thank you.
Well. If the ACLU, legal champions of the Constitution and civil liberties, had looked over the ordinance and found it to be sound, and had no objections to it, then surely it stood on firm legal ground. There really is no greater litmus test than that. The seal of approval from the ACLU means a lot, and the Assembly took it to heart. There were still four Assembly members who objected to the ordinance, but it passed in a 7-4 vote, including the two members who were most unsure – Dick Traini, and Jennifer Johnston.
So, there it was. Locked up, air-tight, buttoned down, and done. Nothing more to discuss. The ordinance would go into effect on December 22 with little objection, and the Mayor would count it as a victory.
Only one problem.
Mr. Wheeler never “ran the ordinance by the ACLU” at all. The ACLU never gave an opinion on it. And the Assembly voted on the ordinance using false information because they actually assumed that the City Attorney had been telling the truth. Surprise!
(photo of Dennis Wheeler by henkimaa)
What followed the Assembly meeting, days later, was a surreal and entertaining confession of sorts. Behold the inept glory of Dennis Wheeler trying to weasel out of this one in a mea culpa email sent on Tuesday to the members of the Assembly, and others.
Assembly members – at the last Assembly meeting, in an exchange with Assembly member Traini, I said the safe sidewalk ordinance had been “run by” the ACLU and the ACLU had no objections. This was a poor choice of words. I knew the ACLU had been reviewing the original ordinance since its introduction in July. I believed the ACLU was also aware of the revised version. I also thought at least one assembly member had told me they had shared the ordinance with the ACLU.
In any event, my office did not directly send a copy of the ordinance to the ACLU. My poor choice of words would certainly give the impression that my office had sent the ordinance directly to the ACLU.
It is true the ACLU did not send us any comments, as they have in the past on other ordinances. It is also appears the ACLU did not speak to either version of the ordinance during the public hearings.
I understand from recent news stories that the ACLU is concerned about the ordinance. It has been suggested the concern has to do with the hours specified in the ordinance, but I do not know the specifics.
That’s right folks. Dennis Wheeler said something that was patently untrue, which (in Mayor Sullivan’s kingdom) becomes “a poor choice of words.” He just could have sworn that somebody on the Assembly told him he/she had shared the ordinance with the ACLU at some point… Who was that again? Oh… the name escapes him. That poor choice of words surely might have led some people to think that he meant the exact opposite of the actual truth. And that was really his bad. But keep in mind that the ACLU didn’t actually technically have an objection to the ordinance that he thought they might have seen, but actually didn’t. And… um… he guesses now they may have some kind of problem with it after all, but hasn’t really availed himself of the specifics of what their specific objections are.
Perhaps Mr. Wheeler is waiting for some unnamed Assembly Member(s) to mention to him in passing (he thinks) something about what the ACLU might dislike. But, hey. We don’t really know for sure.
Fortunately for us, the attorneys at the ACLU seem to be a little bit more on the ball than Mr. Wheeler. They apparently got wind of their supposed tacit endorsement of the ordinance, and had a couple questions via email.
I was reviewing the commentary from the most recent Assembly session. Among
your testimony was a statement that the ACLU had said they had no problems
with the sidewalk sitting and panhandling ordinance. Can you clarify the
basis for that comment? I do not recall making such a statement and do not
find any record in my correspondence of Mr. Mittman or myself making such a
comment, nor do I believe that such a statement would be accurate.
ACLU of Alaska Foundation
Wow. Look who’s all fancy and keeps “records of correspondence” and stuff, instead of relying on vague and distant memories that they just could have sworn had actually happened. (We give a low whistle indicating we are impressed with the ACLU’s clerical acumen).
After another email, gently prodding Mr. Wheeler, this was the response from the hapless, sweaty Municipal Attorney. Ready? The bold passages were highlighted by me, just because I like them and they make me laugh.
Tom I’ve reviewed what I can here. It appears my words were poorly chosen.
While I understood the ACLU had said to the media that it was reviewing the
original ordinance, I should not have said the ordinance was “run by” the ACLU
as this office had not specifically sent the AO to the ACLU. In the past, we
have received comments from the ACLU and the ACLU has attended the public
hearings, without prompting from us. In at least one instance, it was my
understanding the ACLU did not have a “facial” objection, but might have an
“as applied” objection, depending on how the Municipality enforced the
ordinance. Somehow, I came to think that was in reference to this issue,
but I cannot confirm such is the case or what the source of that information
might have been; it may have arisen from the previous version from July or
with the taxicab ordinance. With respect to this ordinance, I don’t think the
ACLU offered written or verbal comments to the Municipality; at least not with
this office. In total, it would have been more accurate to say that I
understood the ACLU is aware of the ordinance and that, to the best of my
knowledge, the ACLU has not commented to the Municipality. I’ve clarified
this with the Mayor and the Assembly.
Here’s where I like to imagine Tom Stenson sitting at his computer, reading and rereading this email. His mouth hangs open slightly. Perhaps he blinks a few times before reading it again. He takes his glasses off and rubs his eyes with the heels of his hands. He’s not sure whether to laugh, and then decides that yes, he will. Maybe he even calls over another attorney, or someone working in the office and says something like, “Hey… Get a load of this.”
He manages, though, to keep it together and asks the straight question:
Could you please forward to me any communications you had with the Mayor and the Assembly? Thank you.
Wheeler responds breathlessly:
You want me to forward to you any attorney-client privileged communications?
Stenson, after a monumental coffee-spit, pens the best response ever. (Parenthetical comment is mine)
You said you’ve clarified it with the Mayor and the Assembly. I would like to
see how the matter has been clarified and make my own determination.
Respectfully, when a government agent takes it upon himself to declare in
testimony at a public meeting what this organization does and does not
support, I take a serious interest in making sure that the record is perfectly
I don’t understand how your communication would be privileged. I can’t imagine
how a statement indicating your own error to the Assembly would constitute
“legal advice.” The simple fact that you are an attorney does not make your
every statement privileged. (<—— The Money Line)
If you choose not to relay the correspondence, I will be compelled to correct
the record myself.
And the final response from Wheeler. Let the backpedaling begin!
Tom- typically records requests are scoped so we know how to respond. Your
request is generally over-broad (“any communication”). That was the point of
my question – to get you to scope your request. It doesn’t appear that you
understood the question. In any event, I can forward to you the email I sent
to the Clerk’s Office. My understanding from the Municipal Clerk is that she
did forward it to Assembly members. If your request is for more than the
single email, you’ll need to let me know. The email should appear on your
I hope you have appreciated this exchange as much as I did. At its best, it is bumbling ineptitude. At its worst, it is blatant manipulation of the public process for political gain, followed by skullduggery and coverup. But whichever it is, there still remains this fact: Members of the Anchorage Assembly placed their votes on this controversial and highly publicized issue, and gave an ostensible victory to the Mayor based upon blatantly false information that was revealed to be false after the fact. So, now what? Let’s hope that one of the distinguished members of the Assembly who is not in the pocket of the Mayor will step forward and demand that this vote be rescinded.
In the meantime, a demonstration is planned on December 22, the day the new law goes into effect. “Our idea is to sit on the sidewalk during the solstice,” says Bryan DeHusson of Occupy Anchorage. “So that at midnight, when the law goes into effect, we have as many people as we can sitting outside of City Hall, in single file, so we’re not actually blocking pedestrian traffic.”
UPDATE: Linda Kellen Biegel spoke with Assemblyman Dick Traini this afternoon. When asked what his response was to Wheeler’s emails he responded that he had already drafted a repeal of the ordinance, which should be introduced at the Assembly meeting this coming Tuesday at 5pm at the Loussac Library. Co-sponsors of the repeal are Assembly members Elvi Gray-Jackson, and Paul Honeman who will be opposing Mayor Sullivan when he is up for re-election this spring.