February 17, 2004
The Board of Commissioners of the City of Lawrence met in regular session at 6:35 p.m. in the City Commission Chambers in City Hall with Mayor Dunfield presiding and members Hack, Highberger, Rundle, and Schauner present. Lawrence High School representative Jacob Gage was present.
CONSENT AGENDA
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve the Public Library Board meeting minutes of January 19, 2004; the Parks and Recreation Advisory Board meeting minutes of January 20, 2004; and the Lawrence-Douglas County Health Board meeting minutes of December 15, 2003. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve claims to 271 vendors in the amount of $1,139,697.49. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the recommendation of the Mayor and appoint Sue Hack, Mike Rundle, David Schauner, Dave Loch, Frank Male, Keith Folkman, Larry Kipp, Don Steeples, Lance Johnson, Peggy Johnson, Jeff Schmalberg, Erv Hodges, Dave Kingsley and George Paley all to the Business Retention Task Force. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve the purchase from Roberts Auto Plaza for one (1) half-ton 4x4 pickup off the MACPP cooperative bid in the amount of $16,059 for the Solid Waste Division, Public Works Department. Motion carried unanimously. (1)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve the purchase from Olathe Ford for one (1) ton 4x4 truck off the MACPP cooperative bid in the amount of $19,983 for the Solid Waste Division, Public Works Department. Motion carried unanimously. (2)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve the purchase from KCR International for one (1) dump truck off the MACPP cooperative bid in the amount of $58,996 for the Utilities Department. Motion carried unanimously. (3)
The City Commission reviewed the bids for one (1) Tool Body Truck for the Public Works Department. The bids were:
BIDDER BID AMOUNT
Laird Noller Ford $30,020.00
Olathe Ford $30,235.00
Midway Ford $30,412.00
Midway Ford, Alternate $30,535.00
Shawnee Mission Ford $30,447.00
Bob Allen Ford $30,513.05
Westfall GMC $31,258.00
Roberts Auto Plaza $31,430.00
Bennett Paul Chevrolet $31,847.00
Ed Bozarth Chevrolet $31,595.00
Brown Truck Equipment, body only $5,238.00
Brown Truck Equipment, Alternate 1, body only $5,124.00
Brown Truck Equipment, Alternate 2, body only $5,124.00
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to award the bid to Laird Noller Ford in the amount of $30,020. Motion carried unanimously. (4)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the City Manager to execute and Engineering Services Agreement with the Peridian Group for Folks Road, 6th Street to Harvard Road, street, storm sewer, and waterline improvements, in the amount of $67,305. Motion carried unanimously. (5)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize an increase in the engineering design fee with Bucher Willis and Ratliff Corporation, in the amount of $32,343.86, for the 6th Street Waterline project to accommodate modifications in the original design plans and to allow design of a 16 inch waterline to the west side of K-10. Motion carried unanimously. (6)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to set a bid opening date of March 9, 2004 for the comprehensive housing rehabilitation project at 407 Elm Street. Motion carried unanimously. (7)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to place on first reading Ordinance No. 7740, rezoning [Z-11-39-03] 5,000 square feet from RM-2 (Multiple-Family Residential) District to C-5 (Limited Commercial) District, property located at 1703/1711 West 6th Street. Motion carried unanimously. (8)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-12-51-03) a tract of land approximately 8.83 acres from PID-1 (Planned Industrial Development) District and M-1 (Research Industrial) District to PRD-2 (Planned Residential Development) District (the property is generally located north of West 15th Street), and direct staff to prepare the appropriate ordinance. Motion carried unanimously.
(9)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-11-40-03) a tract of land approximately 41 acres from A (Agricultural) District to RS-1 (Single-Family Residential) District (the property is generally described as being located east of George Williams Way at Harvard Road) and direct staff to prepare the appropriate ordinance. Motion carried unanimously. (10)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the Mayor to execute an agreement with Roger and Deanna Mayhugh concerning special assessments for Folks Road. Motion carried unanimously. (11)
As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the Mayor to sign a subordination agreement for Jeremy and Kelly Brakenhoff, 2704 Ann Court. Motion carried unanimously. (12)
Pat Sinclair, Lawrence, pulled from the consent agenda, the Drinking Establishment License approvals. She said she was not questioning the license for the Replay Lounge, but if it should be considered as a legal non-conforming use or “grandfather status” of the Drinking Establishment License.
She said the Replay started as a cereal malt beverage license in 1993 and in 1994 the ordinance took place that required license establishments in the C-3 downtown district to make 55% of their sales from food. She said the discussion went on for months. Other establishments did get their drinking establishment license applications in on time except for the Replay Lounge. They did not request a City license until May and it was approved by the City Commission in June and they received the State license sometime in April after the deadline.
She said in trying to keep precedent in mind and the need to treat every place fairly and equally, she wanted to call to the Commission’s attention the fact that they did not have a valid drinking establishment license or an application into at the City at the time the ordinance had went into effect.
There had also been some renovations in that location and she was not able to research the City Commission minutes to see if those were renovation that would have qualified because Article 13 in the Zoning code stated that there needed to be City Commission approval for certain types of changes, expansions, remodeling and it needed to meet certain conditions. According to Neighborhood Resources, in December of 1995 there was remodeling.
The letter introduced by Price Banks, Attorney for the Replay Lounge, indicated that they had invested approximately $66,000 in improvements to this site in the last 4 years. Whether those changes had been cleared or appropriate was another matter to consider.
Commissioner Highberger said he would have some concern if the things that Sinclair brought up happened last year, but the main issue happened 10 years ago and his position remained that same. He said the Replay Lounge has qualified for a Drinking Establishment License.
Moved by Highberger, seconded by Rundle, to approve the Drinking Establishment Licenses for Henry’s on Henry Street, 11 East 8th Street; Marisco’s, 4821 West 6th Street, Suite A; Shenago Lounge, 2907 West 6th Street; Replay Lounge, 946 Massachusetts; and the Retail Liquor Licenses for Diane’s Liquor, 1806 Massachusetts; and Sprit Liquor, 600 Lawrence Avenue. Motion carried unanimously. (13)
Commissioner Schauner pulled from the consent agenda the approval to a revised preliminary development plan for Oread West Office. He asked if a traffic impact study considered for that property as a condition of that development.
Paul Patterson, Planner, said there was a traffic impact study done as part of the overall Research Park. He said there was also a condition on the revised preliminary development plan that called for an agreement not-to-protest the benefit district for future signalization, geometric improvements for the intersection of Research Park Drive and Bob Billing Parkway which was west 15th Street.
Commissioner Schauner asked if that Traffic Impact Study required as part that particular proposal.
Patterson said yes, there was a study provided that included the components of that particular proposal.
Commissioner Schauner asked if that Traffic Impact Study demonstrated what the need for possible future signalization of 15th and Research Park Drive.
Patterson said at some point in the future there might be some need for that and that was why the condition was brought forward.
Commissioner Schauner commented to the idea of taking 17 acres of Research Park land and converting it to a residential use when at the same time they were trying to create a 1,000 acre bank of land to be used for industrial purposes. He questioned the wisdom of taking an existing plan that could easily be used for biosciences and other activities that the Commission was interested in and converting that to residential use and whether that in fact was the basis for a good public policy change. He said this issue seemed at odds with the Commission’s stated purposes of more industrial space especially that area so well suited for biosciences.
Linda Finger, Planning Director, said that was staff’s initial concern and played a large part in why it was delayed one month at the Planning Commission level so that issue could come back and give staff more specifics.
She said the Chamber of Commerce Chair person showed up in support of that development and it was not an opposition to their intent. She said Lynn Parman, Vice President of Economic Development, stated that use did not conflict with the 1,000 acres that they were looking at and they found that use to be compatible and could spur growth in that area.
Commissioner Schauner asked how many acres were left if they rezoned that area residential on Research Park Drive.
Finger said on the north side, just the row of lots that went from the Golf Course Superintendent Association were 3 lots that went up to the intersection of Legends. There were not a substantial amount of lots there. There was larger area that was undeveloped to the south of 15th Street that would serve the need more between 18th and 15th Streets for a large building with parking. The lots that were left on the west side of Research Park Dr. were fairly narrow for any type of large research development and they would end up being smaller office buildings with shared parking.
Commissioner Schauner asked if that would be on the north or south of 15th Street.
Finger said north.
Commissioner Schauner asked if there was a height restriction covenant south of 15th Street.
Finger said she did not know if there was a covenant, but there was a height restriction in the M-1 District which she thought was 45 feet, but she would check that height.
Commissioner Schauner said it still met his concern. He recognized everyone would have a different view on this issue, but it seemed there were so few sites in the City limits that could serve that biosciences or research purpose and he hated to see the City abandon 17 acres of that land for residential purposes.
Mayor Dunfield called for public comment.
Tim Herndon, Landplan Engineering, reminded the Commission that this issue came before the Commission on a unanimous recommendation for approval from the Planning Commission. He said after much discussion about the portion of the research park that would be occupied by this development, it was important to note that of the research park this residential component would constitute less than 4% of the research park.
Another important aspect to point out was that in an inventory of the businesses within the research park, which they performed as part of this project, approximately 10% of the businesses that existed within the research park had anything to do with research or manufacturing. In that regard the term “Research Park” to some degree was a misnomer.
A very important aspect of this issue was that this project really did represent the essential new urbanism concept. This was a live where you work deal. It was the type of product that would appeal to corporate executive or senior management type that was situated within the research park and within the surrounding commercial areas. He said it provided amenities that had not existed in town.
He pointed out that emphatically a traffic study was required as a component of this project. Compared to the previously approved development plan for this site which consisted of 5 office buildings, not research building, the traffic impacts in the peak hours would be reduced with this alternative use and the study conclusively pointed that out.
Daniel Flynn, President and CEO of Deciphera Pharmaceuticals, said he was one the City’s first for-profit high tech companies located in that facility. He would very much advocate that the Commission seriously consider taking any more of this property and converting it into residential.
He said he agreed with Commissioner Schauner’s viewpoint that when he came in as a client looking for a place to operate, there were very few places in Lawrence that they could find and Research Park was a very good location.
He said in terms of where a person worked, he said he lived in Chicago, Boston, and Los Angeles and he found it a tremendous delight to only need to drive 2 miles to work. He reiterated that the Commission keeping this space because there were going to be other companies like his company who would want to come to Lawrence. He said those companies would want space next to each other.
Herndon said it was important to know that if one were to look at the Planning Commission minutes they would have seen a parade of the business owners within the research park that supported that project.
Vice Mayor Rundle said it seemed that both points were well taken. If the businesses in that area advocated that they did want residential, he said this did represent 4% of the park that was a comforting fact, but he appreciated Commissioner Schauner bringing that idea up. He said any future proposal would be flagged to Planning Staff and the Planning Commission to make sure that the Commission did not make decision that would jeopardize the viability of this area as a research park area. He said this issue could be talked about in the future and took more proactive measures to make this come to a reality.
Commissioner Schauner said it was not his intention to lob a grenade at Herndon or his project. It was to try to have some conversation about how the City was going to preserve the limited space in the city limits for this type of activity. He said he did not have any other method of doing that other than bringing this issue up at this Commission meeting. He said he would like the Commission to take a hard look at similar attempts to change zoning from industrial to residential because he was not sure in the long run that served the communities economic development interest. He said he would vote in favor of the zoning, but he did want to raise that as an issue to consider as a Planning and City Commission as they dealt with those issues in the future.
Commissioner Highberger thanked Commissioner Schauner for bringing his concern to the City Commission. He said he was not sure that this project qualified as new urbanism, but he liked the idea of integration of residential with places where people worked. He supported the plan.
Moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendation to approve a revised preliminary development plan (PDP-12-13-03) for Oread West Office and a new Preliminary Plan for a Planned Residential Park, containing 16.893 acres and the proposal is for eight office buildings, five residential building containing 65 dwelling units and a clubhouse (the property is generally located north of West 15th Street and east of Research Park Drive) subject to the following conditions:
1. Provision of an agreement not to protest the formation of a benefit district for future signalization and geometric improvements for the intersection of Research Park Drive and Bob Billings Parkway (W. 15th Street).
2. Provision of the following revisions to the Preliminary Development Plan:
a. Note No. 9, delete “Use Group 1- Agriculture – Animal Husbandry, Use Group 2 – Agriculture – Field Crop”, as they are not allowed in the PID-1 District per Section 20-1004(c)(1)(A);
b. For Note No. 22, per section 20-1008.5(B) include “odor” as one of the restrictions of offensives not allowed to be detectable from the property line;
c. Include “/Planned Residential Development” after Planned Industrial Development in the Title;
d. Show W. 15th as Bob Billings Parkway;
e. Include a minimum of 10 bicycle parking spaces within the residential Phase III area;
f. Revise the Parking Ratio to incorporate required parking for medical and related offices of 1/100 Net Square Feet, and 1/200 Net Square Feet for financial institutions;
g. Include an ownership note for the residential condominium loft units similar to note no. 18 for the office buildings; and
h. Addition of the following notes:
· “A revised final plat of the property will be accomplished to relocate utilities which otherwise would be under proposed new structures, relocate or dissolve property lines, and provide for the appropriate location and dedication of utility and drainage easements.”
· “Public improvement plans for waterline, storm sewer and sanitary sewer will be submitted to Public Works before the Final Development Plan is filed at the Register of Deeds.”
3. Provision of the following requirements of the Stormwater Engineer:
a. Label the detention outlet control structure per the approved drainage study;
b. Submit public improvement plans for the public storm sewer system to the Public Works Department for review prior to release of the plan to the building inspector;
c. Record the proposed drainage easements and provide copies with the engineering plans; and
d. Per City Code Section 9-903(B), a stormwater pollution prevention plan (SWP3) must be submitted and approved for this project prior to any construction activity, including soil disturbance, removal of vegetation, and any release of building permits.
e. Provision of a revised Final Plat of the property to relocate utilities which would be under proposed new structures, relocate or dissolve property lines, and provide for the appropriate location and dedication of utility and drainage easements.
4. Within 15 days after approval of the Preliminary Development Plan by the City Commission, the landowner shall file with the Douglas County Register of Deeds a statement concerning the Preliminary Development Plan per Section 20-1012.
5. The maximum residential density will be 10 Dwelling Units per Net Residential Acre.
Motion carried unanimously. (14)
CITY MANAGER’S REPORT
During the City Manager’s Report, Mike Wildgen said last year in a City Commission goal setting session, the Commission expressed interest in the Lawrence Regional Technology Center (LRTC). He introduced Matt McCleary, President and CEO of LRTC.
McCleary gave a brief background of LRTC. He said their mission was to take ideas, inventions, innovations, and technologies and turn those into profitable small businesses, businesses that could create jobs and taxable revenues for the community.
He said they worked with the University of Kansas to take a look at the technologies, research and development, and new discoveries to analyzing their portfolio.
He said they were blessed with the research and development base that was located in Lawrence. He said it would only get better with the Governor’s and Legislature’s initiative to build life sciences in the State of Kansas and build a bioscience industry involving Lawrence. He said because of this, this community needed an infrastructure for this technology to create companies around it.
He said they offered three sets of services which were tenant services, business development services and investment services.
He said they were looking for companies that could create many new high paying, high skill jobs, and generate several millions of dollars in revenues. He said there had been over 80 companies in town seeking their services.
Daniel Flynn, President and CEO of Deciphera Pharmaceuticals, said there was no way that their company would be in Lawrence without LRTC. He spoke in support of LRTC and its staff.
Commissioner Highberger asked if it was common for McCleary to ask for an equity interest with the companies that he worked with.
McCleary said equity interest was always an option. Their company received cash, equity interest, or royalty on future sales based upon performance. He said they tried to be flexible.
Vice Mayor Rundle said one of the governors proposals dealt with restructuring the money that came from KTEC, he asked McCleary if he was worried about funding changes under the current proposal.
McCleary said nothing had been communicated to him from KTEC that would indicate that, but just the opposite given the new Kansas Economic Growth Act that they might even benefit from the increase of the amount of resources that might be available. He said KTEC and the legislature understood that it was not only important to increase research base, but also they needed a strong commercialization infrastructure to help turn those inventions into profitable businesses.
Commissioner Hack asked what could the City do to help further.
McCleary said the two things of most interest would be a building and to hire a full-time CPA.
Ted Haggert, Chair, Board of Directors of KTEC, spoke in support of the LRTC.
Sgt. Randy Roberts presented information on the Traffic Safety Grant. He said it was a 3-year program valued at 2.2 million dollars and 80% of that was funded through the grant and 20% by the City. In that program it provided the Police Department with 6 new officer positions and 1 sergeant position. He said they were able to purchase 7 marked patrol cars and all of the equipment including mobile data computers out of that grant.
He said their main function was to perform traffic enforcement, commercial vehicle inspections and reconstruct all fatality and critical injury accidents, DUI enforcement, and the assumed the patrol accident overflow.
Their main focus was to reduce the speeds, decrease the accidents and reduce the severity of the injury in those accidents that occur.
He informed the Commission of their activities concerning traffic violations. He said in 2003 statistics that were provided, injury accidents decreased by 22%, and property damage accident decreased by 25% which was their goal. He said they were now functioning at the statistic rate that they needed to be for 2004-2005 at the end of their first 6 months of productivity.
Mayor Dunfield asked if the performance level that Roberts discussed was part of the State grant proposal.
He said they compiled statistics and gave the State projections. He said during their first 6 months they met the level of standards that they were to be at for 2004-2005.
Commissioner Schauner asked if their unit concentrated in any particular part of town during any particular part of the week for DUI’s.
Roberts said DUI enforcement was City wide. He said there were 6 officers assigned to the unit, 3 officers during the day shift hours from 7:00 a.m. to 5:00 p.m., and the other 3 officers from 5:00 p.m. to 3:00 a.m. He said typically from 10:30 p.m. until 3:00 p.m. the evening shift was running saturation patrol.
Vice Mayor Rundle asked if Roberts could expand the statistics on the impacts on the courts, prosecutions, fines, verdicts, and what the physical impact on the court costs.
Wildgen said staff could prepare a report.
Wildgen informed the Commission that staff was out over the weekend working on potholes. He said staff was trying to get at those potholes 24 hours after that call. (15)
REGULAR AGENDA
Consider adopting Resolution No. 6526, ordering repair of the garage structure at 933 Rhode Island and requiring a performance bond payable to the City, in an amount guaranteeing the repair cost; bond to be provided to the City at the time of the issuance of the building permit.
Julie Wyatt, Environmental Inspector, said Paul Horvath had been in contract with a local contractor and Horvath had retained that contractor as a consultant and planned to rehabilitate the structure from the inside out using his own workers with the continued consultation from the contractor.
She said following the State statute, staff would like to adopt the resolution ordering the repair of the structure. She said included in the Commission’s packet was a draft resolution that included a schedule and also included a requirement for a performance bond or an escrow that would ensure that the work was completed.
Vice Mayor Rundle said in terms of the actual plans for the construction, he asked what process would that need to go through.
Wyatt said as far as the end result, Horvath would need to follow the plans that were approved by the Historic Resources Commission in 2001. Otherwise, he would need HRC approval. She said Horvath would need a new building permit because the previous permit had expired.
Vice Mayor Rundle asked if the Preservation Planner would be able to assist in any advising capacity to make sure they stayed on track.
Wyatt said that was part of the permit process.
Horvath said they were on track in agreement. He requested that the Commission drop the requirement of the performance bond. He said he felt that if he did not perform at this point, the Commission had recourse in placing a lien on the property.
Mayor Dunfield called for public comment.
Ed Tato, President, East Lawrence Neighborhood Association, said there needed to be a schedule, start date, finish date, performance bond, and fines if Horvath did not get that project finished.
Vice Mayor Rundle asked staff about lien and other recourse being effective.
David Corliss, Assistant City Manager/Legal Services Director, said they did not have the language in the resolution ordering its demolition, but only its repair. He said as Wyatt indicated it provided a timeline for the reconstruction of the garage and in Subsection 2 of the resolution, it required a performance bond from the building permit applicant in the amount of the estimated cost of the repair work.
He said performance bonds, particularly for smaller projects, were not easily obtained at a low cost. He said his concern was that if the Commission required that Horvath have a performance bond, Horvath would be back complaining about that requirement, but he did not know that for a fact. He said as an alternative that would still provide the financial security that would be analogous to a performance bond. He said in the resolution he had language that in lieu of a performance bond, the property owner would escrow with the City, the amount of the money that would be in place in order to complete the rehabilitation of the garage.
A performance bond was where the applicant then went to a 3rd party (insurance company) that would then step in place of the owner and do that work. He said he had noted that on working on some of those smaller projects, that could be a financial hindrance. He said in this case, it was perfectly acceptable for the Commission to do that, but the escrow amount was another way of making sure that the City had in its control, the money to accomplish the repair work if Horvath was not timely with the completion of that project. He said Horvath would not get a building permit unless he provided the City with that financial security.
Vice Mayor Rundle asked if Corliss could provide an idea of those costs.
Corliss said for a $20,000 project, it might be 10% of the project costs. He said he was not familiar with Horvath’s construction work. A lot of this work would be performed by contractors that he had already had on retainer or handymen. He said that would be more speculative for an insurance company or a surety to say to the City that they guarantee that if Horvath did not complete that work pursuant to that timetable they would step in and do that work. He said it was some level of speculation on his part, but in working with construction companies because the City required performance bonds and when it was a smaller scaled project that was one of the complaints of the contractors.
Mayor Dunfield said he appreciated Corliss placing that escrow option into the resolution because he thought it protected the City‘s interest. He also noted for the benefit of the public that this resolution also called for the City to cause that structure to be repaired if it was not done within the specified time period outlined in the resolution. He said as those issues go, that was probably as strong a resolution as he had seen in front of the Commission.
Vice Mayor Rundle said it was his understanding that the escrow fund would be spent down as the project proceeded.
Corliss said correct.
Vice Mayor Rundle said the only discomfort he had was if the funds were largely expended and the project was not completed, then what was the City’s recourse.
Corliss said this was analogist to what the City did when developers build private streets in the community. The developers were required by the City’s subdivision regulation to escrow funds in a local financial institution and that money was not allowed to be dispersed without the City Engineer’s approval that a certain percentage of the work was completed. He said in this case they would be looking at Neighborhood Resources to indicate whether the percentage of the work done and therefore so much of that bill would be paid.
He said there was no guarantee that they would not spend that money down and not completed or that there wouldn’t be some issues with that.
Commissioner Schauner asked where the estimate from reconstruction came from.
Corliss said he did not know if staff had an estimate.
Wyatt said staff had a base fee which was estimated at $20,000 to $25,000 to rebuild the structure.
Commissioner Schauner asked if the City was required to actually rebuild it if the owner defaulted, was it that number that they would want to use as the basis for their escrow requirement or bond requirement. He said he thought there should be a professional contractor estimate as the basis for the City’s escrow or bond requirement. He said he did not want the City to spend general fund monies to rehabilitate that property when in fact the City was writing an agreement with the owner.
Corliss asked the Commission to keep in mind that because of the way staff would continue under the safe and dangerous structure act was that the amount of money that the City would spend in the repair of that structure they would then put back on the property and that amount would then be placed on the tax rolls. He said the City would recoup the funds that they would spend for the repair. The estimate issue was something that they would rely on staff or an independent source, but also Horvath’s view.
Vice Mayor Rundle said the meeting with the contractor resulted in identifying some viable alternatives to total disassembly. He said that might be something that would help contain costs.
Mayor Dunfield said that was the reason why he raised the issue about the City being able to step in if the repairs were not completed. He said this was the type of job where 3 professional estimates could be 3 wildly different numbers. He said he understood Horvath’s interest in using his own forces and trying to keep those costs down. If the City hired an estimator to look at the project, the estimator would not be able to look at that project in that way, but a conventional project.
He said he was pleased with the contractor’s involvement in the project. He had experience with old structures of that type.
He said staff had done a good job at protecting the City’s interest.
Commissioner Schauner said he did not care if it was a bond or an escrowed amount, if they could have an escrowed amount that was handled in a way that satisfied the needs of the resolution and that should accomplish their goal which was to see that the structure was rehabilitated.
Commissioner Hack concurred. She said the bottom line was that the Commission wanted that structure taken care of.
Commissioner Highberger said Tato raised the issue of fines in case the schedule was not met. He said he was not clear that the Commission had the authority to do that and there were enough protections built into that resolution to make sure that the project were completed.
Vice Mayor Rundle said he thought Tato’s points were well taken because they have had demolition by neglect for years.
Moved by Rundle, seconded by Schauner, to adopt Resolution No. 6526 ordering repair of the garage structure at 933 Rhode Island and requiring a performance bond payable to the City, in an amount guaranteeing the repair cost; bond to be provided to the City at the time of the issuance of the building permit. Motion carried unanimously. (16)
Consider adopting on first reading Ordinance No. 7742, amending (TA-02-01-03) Section 20-1808 Limitation on Successive Petitions, to establish a clear process and standards for the resubmittal of a zoning petition after denial of a petition for the same land parcel.
Linda Finger, Planning Director, said this issue was approved by the Commission several months ago, but no ordinance had been drafted which was the adopting tool so it never took effect.
She said staff concern was that they had seen a number of repeated requests to rezone land in a similar fashion or to seek a similar application. She said staff believed that section needed to be revised (20-1808 Limitation on Successive Petitions). She said what that section meant was that if a person made a zoning application there was in the code currently a limitation on once that had been denied, how long before you could make that same request again which was currently 1 year except if there was determination that there was a substantial difference, but there was no criteria to make that determination.
She said there was no statutory requirement to have that language in the code. In a meeting with staff and the Planning Commission they talked about the different options available which were: 1) Remove the subjectivity all together and set some period of time; 2) put a clause such as “accept in this case”; and 3) To change what those exceptions would be.
The Planning Commission asked staff to revise the draft given staff more direction in what they were looking for. The final time the Planning Commission looked at that issue before they passed it on to this body with a unanimous recommendation, they had significant language they wanted to add and that language was in the body of that report under Subsection (b), (c), and (d).
She said two members of the public took a more detailed look at this issue that had previously occurred by the public and staff had comments by Sinclair and Lictwardt about things that they saw that were issues or problems with this amendment. She said staff presented a memorandum to the Commission summarizing the comments for Sinclair and Lictwardt. Also, the Commission received staff’s recommendation for 3 options or possibly 4 options.
The recommendations from staff were: 1) send this back to the Planning Commission and ask them to consider the concerns that were raised by the public; 2) adopt on 1st reading what was presented to the Commission in the draft form of the ordinance which was recommended unanimously by the Planning Commission and approved by the City Commission on the consent agenda; or 3) take no action and it would come back to the City Commission with the revised zoning code. She said a fourth option might be that if the City Commission liked some sections of the draft ordinance and some sections that the City Commission were less comfortable with, it was suggested that if the Commission looked at the proposed text amendment that if the ordinance was written such that at the end of Subsection (b), a period was placed after City Commission denial of the original petition and there was no “if” clause and Subsection (d) were moved up to (c) that would provide a simple limitation on successive petition which was 12 months.
Pat Sinclair, Lawrence, said she hoped the Commission, under no circumstances, would approve the ordinance. Of the various options the Commission had, she thought waiting for that issue to come back within in large package of zoning code, the Commission would have a lot to consider. She said it would be nice to deal with this item by itself.
She said she came from a neighborhood that had been directly affected by having this “broken” code in existence. She said the neighborhood really felt the weight of it and had to live with the results. She said she had inquired by email in January on having that code used against their neighborhood.
She said at that time, Finger’s attachments three weeks ago to the on-line agenda were the July Planning Commission minutes and the staff report that was prepared for that July Planning Commission. She said she was befuddled trying to read the staff report and then read the minutes and figure out how that ordinance emerged from it because the staff report talked about a lot of different approaches, none of which was that ordinance. The actual debate at the Planning Commission level seemed quite limited and there were expressions from the Planning Commission in saying that they did not like to see those things come back frequently.
She said she was distressed by the repeated references to “no public comment.” She said the Barker Neighborhood would have liked to comment if they knew where the meetings were. She said the Barker Neighborhood showed up to many meetings, last year, but they had seemed to have missed all the ones where it was actually discussed. She said they made written comments to both the Planning Department and Planning Commission in January, not just her but also at least one other person in the Barker neighborhood protesting the use of that code and making specific references to the affidavit that was required. The affidavit was so poorly defined and the affidavit that was submitted was a pathetic one-page document that said very little in terms of what it proposed to do as change. She said Finger said that affidavit was not like any one that she had seen relative to other major projects within the City.
There was also question of the timing that that existing ordinance said that it should be submitted 15 days prior to a Planning Commission meeting. She said the meeting was the 22nd and they were told by Finger on January 7th that was the last day they could submit the affidavit and then they accepted the affidavit on the 8th. She said the Barker neighborhood was actively involved and many people attended the January Planning Commission meeting where it was voted as to whether there was substantial change in the proposal for their neighborhood.
She said notes from that January meeting indicated that: “Motion by Commissioner Burress and seconded to direct staff to draft language for a text amendment to the zoning regulations that would address the criteria needed to make a determination of substantial change and forward it to the City and County Commission for concurrence. Motion carried unanimously.” She said there was no public comment because it was not a public item at that time.
She said when they arrived at the March meeting, even though it was on agenda, it said: “amendment to the City’s zoning ordinance … this item was deferred prior to the study session.” She said the public came to the March meeting.
She said they were interested in this because it was a very significant piece of the code and it needed to have a thoughtful change or being changed in the manner that Finger suggested which were 12 months.
She said there was written public comment and there was no attempt to keep them in the loop as far as when it was coming to the Planning Commission again. She said she had pulled out the minutes from the April Planning Commission meeting and it was so complicated she could not follow those options.
She said Planning Commissioner Haas commented “this broken section had cost the City dearly in terms of resources, he suggested that some applicants use successive petitions to “fish for response” from the Planning Commission.” She said she concurred with that comment.
She said at one point the Planning Commission voted on several issues. She said one time they voted on something that was a tie (5-5 vote). She said, “The Commission discussed the ramifications of forwarding a tie vote, technically a denial to the City Commission. Staff pointed out this issue was likely to come back to the Planning Commission again.” She said the Planning Commission reconsidered their action and wound up having a different vote. She said if trying to read through those April minutes and look at the staff report from July which had a lot of rich discussion of alternative ways to look at this and look at the July minutes, she did not think there was any consensus. She said to the Planning Commission that seemed clear that this was just a real clear cut choice of theirs.
She said meeting with the neighborhood was a difficult thing. People who build homes for a living, it was part of their job to go to meetings and they had access to communication equipment. She said neighborhood did not have those resources on those ways to keep in touch. Neighborhood Associations might have a small membership that might not even reflect the entire neighborhood and at best they might have some email communication which excluded many members. She said when seeing reference that talked about sending it back to the neighborhood, as long as they run it by the neighborhood before it came back, that was easier said then done.
She said initially they were talking about an item that was just denied by the City Commission. If the City Commission denied it no matter what the vote was at the Planning Commission meeting, no matter if there were protest petitions, no matter what the Planning Department said about it, all it took was for the Commission to deny it and it wasn’t supposed to come back to the Planning Commission for 12 months except if there was a substantial change. She said her understanding of what they were trying to do was to define the substantial change more clearly, clean up the stuff about the affidavit making it more specific, and clarify that timing issue.
She said this placed an enormous burden on a neighborhood in order for the 12-month period to apply it seemed that it had to be denied by Planning, there had to be a legitimate protest petition filed by the neighbors, and it had to be denied by the City Commission. She said that was a big change from the original ordinance which just required that it be denied by the City Commission.
She said there was some language that remained from the last go around and that language was not clear in the previous ordinance and that language had to do with what constituted a withdraw of an application. The application in the Planning Commission minutes indicated that the withdrawal would not be just the developer or a person deferring it to another meeting. She said they could continue to submit new and revised plans even up until the day of the meeting. She said she did not know what would constitute a withdrawal of the plan.
She said writing things so that there were circumstances where it was up to the discretion of the Planning Director was dangerous territory especially when talking about public notice and involving the public in a public hearing.
Vice Mayor Rundle said he was trying to find some other examples and stumbled onto a much simpler version in another community. He said this was not only costly to the City, but it was costly to the neighbors to deal with those issues. Part of the zoning decisions were to look and see how it affects nearby property, if it met the City’s Comprehensive Plan, and if there was a gain to the public health, safety, and welfare. He said it was a community decision and once the decision had been made people who vested all that time should be able to go home and relax and know that they would not need to mount that ever again for a 12 month period.
He said he had concerns that leaving those judgments just in the hands of the Planning Director. One of the examples said the Planning Director could find those things and then the Planning Commission could agree. The simplest version was that there shall be a one-year waiting period except when the Planning Commission found that there had been a significant physical, economic land use or other changes that affected appropriateness of the property. If there was a significant or pertinent change in the text of the zoning ordinance or that the application was for a more restrictive use. He said they were attempting to do that in terms of specifying the density.
He said it said that they would allow successive petitions if the density changed of 25% or greater. That might still be a substantial impact that was not compatible or not agreeable with the neighbors. He said if they did make suggested changes such as simplifying it, he asked would it need to go back to the Planning Commission.
Finger said there could be changes made that did not change the substance, but might simplify the intent and with a super majority or a 5-0 vote they could go ahead and approve it without returning it to the Planning Commission.
Mayor Dunfield said he had concern about simplifying in that the reason they got into this in the first place was to be more definitive about what a substantial change was. He thought the language under paragraph (c) largely did that and he knew that the Planning Commission had discussed that issue quite a bit and had accepted it. He said he was generally happy with what was there except for paragraph (d). One thought he had was just to eliminate paragraph (d) altogether. Another thought that he had was to change the word “and” at the end of (b)1 to “or” that would at least reduce the standard. He said it seemed to him that what they really want to say was that if a petition was denied then there would be a 12 month waiting period unless there was a substantial change and now they were going to define what a substantial change was and that was what paragraph (c) said.
He did not see the need for a neighborhood protest petition and did not see that it necessarily followed that it would need to be recommended for denial by the Planning Commission before being denied by the City Commission.
Vice Mayor Rundle said the final decision was denial and that was the one that they would want to honor.
Mayor Dunfield said that would then trigger those other conditions under paragraph (c).
Commissioner Hack said that made the most sense to her because she agreed that they were in an awkward situation where “substantial” or “significant” had not been defined.
She said she liked the Mayor’s compromise on changing some things. Her original preference was to wait and tackle this when zoning codes were done, but if they could agree on that then maybe that was one portion of that the Commission would have taken care of.
She said the issue that she was most concerned about was to simplify to the point that once it was denied you could not come back for 12 months, did not allow for any kind of possibility of working out to something that was better. She said she would hate to see them give up that opportunity. She said she would like to see that conversation at the beginning before it was even submitted to the Planning Commission or to staff, but failing that this did allow some type of cooling off period, but at least that time could be used for the purpose of making it better. She supported the Mayor’s proposal.
Commissioner Schauner said he agreed that the goal was to clarify what substantial change meant, but he had a concern about paragraph (c) 2 which talked about the same zoning category or district had been petitioned for and the density of use was 25% greater or less than the original petition. Everything that he had heard since he had been on the City Commission wasn’t interested in greater density, but less density.
He said he would rather see the Commission leave this issue until they had that discussion rather than trying to draft something ad hoc at this time which might or might not fully address all the comments that had been submitted on this question.
Commissioner Highberger said this had been in the pipeline for a long time and he preferred to make a decision at this time. He liked the Mayor’s suggestion of making a denial an automatic 12-month prohibition of successive petition.
He said he also liked Commissioner Schauner’s suggestion of eliminating the reference to the density of 25% greater in Section 2 and Section 3. He said with those three changes he would be happy to move forward.
Mayor Dunfield said he would not support it if they removed the language about density of use being permitted to be greater as well as less. He said saying that they were always going to argue in favor of less density was saying that they were arguing in favor of sprawl and he did not agree with that. He said greater density in many cases was desirable from infrastructure point of view or from a form of growth point of view for the City.
Vice Mayor Rundle said that point was well taken. He said this shouldn’t mean that if there was a change of 25% then it should automatically be heard if it was going in the direction that caused denial. He said rather than trying to craft the language, he agreed that there were valid reasons for that language to be there.
He addressed the issue of simplifying. He said that was our problem here in Lawrence, how do you define “significant” or “substantial”. He agreed with the suggestions that were made so far, but he would like to see the Commission consider in number 1 under (c) a more restrictive zoning category.
Commissioner Schauner said he agreed with that rationale, but he thought this was a clumsy way to draft important language. He said another couple of weeks would not make or break this issue. He said the Commission was doing themselves and the general public a disservice by trying to mix those various changes together in this form. He suggested asking staff for direction that the Commission could consider in a more careful fashion.
Mayor Dunfield asked if the Commission could give that direction.
Mayor Dunfield said deleting the paragraph might raise the question about how the pieces all fit together, but he hoped Finger saw the intent behind deleting paragraph (b).
Finger said if all of (b) were deleted, the 12-month language would be lost. She said if a period was placed after “original petition” then she thought the Mayor would achieve what he wanted.
Mayor Dunfield said paragraph (c) would seem to be in contradiction with paragraph (b).
Finger said yes, and then there would need to be some language about “substantial” for paragraph (c) to work.
Mayor Dunfield suggested an “unless clause.” He said the rule was 12 months, but you might file 120 days after under those conditions.
Finger said correct.
Commissioner Schauner asked when the Commission would be likely to see the larger zoning ordinance.
Finger said the study session with the Planning Commission was on February 27th and staff hoped to have everything incorporated into the document by the end of the first week in March. She assumed they could have it before spring break.
Mayor Dunfield said he would like to see the language in advance.
Finger said staff could send a memo to the City Commission to update them on what staff was going to add in. She said Lichtwardt made some good grammatical recommendations to clarify category as the same of zoning district at least by the 25%. She said staff would send that information to the Commission in two weeks in the agenda packet.
Vice Mayor Rundle said he liked the idea of the withdrawal of the petition being treated as a denial. (17)
Consider approving UPR-12-07-03, a Use Permitted Upon Review request for placement of a cell tower. The applicant proposes a 150’ monopole tower. The property is located at Clinton Water Treatment Plant facility at 2300 Wakarusa Drive.
Paul Patterson, Planner, presented the staff report. He also presented a map to the Commission depicting the location. He said they were currently using an existing monopole tower, the T Mobile tower, which had four users. The proposed tower was a 150’ cellular tower to the west of the existing tower.
The Planning Commission heard this item on January 28, 2004. The Planning Commission on an 8-1 vote recommended approval subject to the 6 conditions as listed in the draft of the Planning Commission minutes.
Mayor Dunfield asked when the existing tower was placed.
Wildgen said approximately 3 years ago.
Mayor Dunfield asked the size of that tower.
Patterson said it was also 150’ monopole tower. He said the proposed tower would resemble that tower in its character where there could be a total of four potential users on that property.
Mayor Dunfield called for public comment.
Brian Smith, Topeka, Attorney representing the Nextel applicant, said this would be a non-lighted tower and it would be the same height as the existing tower. It would accommodate up to three additional carriers in addition to the one that they would be putting on it.
He said the location of the tower would be north of Wakarusa Court. Wakarusa Court had a car wash, mini warehouses, and other type of miscellaneous industrial warehouse which was south of their tower. To the north of their tower was the water treatment center and to the east of the site across Wakarusa was a residential neighborhood. Even going south off of Wakarusa Court there was a nursery and you would end up at Clinton Parkway where there were some commercial developments.
He presented some photographs of the area to the City Commission. He said they did try to reach out and communicate with the neighborhood about the application. He said on December 23, 2003, he had sent a letter from his office to everyone on the notification list which included the statutory notice and an expanded ring. He said the Planning Department suggested that notice be given beyond the statutory notice ring to those entities that might be visually impacted. He said he sent out a letter and scheduled a neighborhood meeting for January 5, 2004 at the Catholic Church. He said they brought in people from out of sight to give a presentation and discuss with anyone who showed up. He said no one showed up other than a representative from the City Attorney’s office. He said they discussed the issue with no one in attendance. He said he did not receive any phone calls, but at the Planning Commission meeting one person did appear and expressed his opinions about the concern of the visual impact of the tower. He asked the Commission to support and pass the request.
Steve Wheeler, Lawrence, said he wanted to bring to the attention a proposal for an alternative site for placement of a cell tower. He said the site plan that the City Commission had received was incorrect. He said the site plan depicted the 2nd cell tower as being due south of the water tower. He said there was also an issue of the future fire house/first respondent unit and conflict in where it would be located.
He said when the first tower was built, he understood that one of those antenna units was suppose to be set aside for use of the City. He asked if the City was actively using that tower at this time. He said the same thing applied to the proposed tower in that the City would use one of those antenna units.
He said when they were at that planning meeting a map was shown that depicted a targeted area where they were looking at locating the cell tower which appeared to be at 15th and Wakarusa. He said he did not know why it did not it did not dawn on him at the time, but the ITC Building was located there which was owned by the City.
He said he inquired about future development for that building and the way that it sat and maybe posting that tower as a benefit to the police department and any other needs of the City.
He said to the east of the building was an service access drive and a service bay that had a retaining wall to disguise part of the area and he thought the tower could be placed due east of the building. There were 1,015 volt high transmission lines that cut across the property. He contacted Weststar Energy in which they informed him of their blanket easements and how close you could get to those power lines. He said there was a 100-foot easement starting from the center of the two H-style poles out. He said when doing a ground up observation, he thought a pole could be easily placed and its facility right off of that service access road so that the parking lot usage would not be interfered with.
He suggested to the City Commission not to make a decision on the cell tower location until his idea was reviewed as a viable alternative that would be beneficial to the City. He thought the cell towers should be spread around because he was trying to avoid the creation of a cell tower farm. He said there was nothing in writing that placed any limitation on how many cell towers could be located in one location.
He said he visited with the Water Treatment Plant employees to educate himself on how the people who worked on the cell tower had access to the City property. He said they were to drive through the plant and access a gravel road to get to the tower. Those employees were to check in with the City and checkout when they left. He said City employees said those cell tower workers would drive through, check in, but drive out that back field and more often than not, those cell tower employees did not bother checking in with the City to do repairs or additions on the towers.
Smith addressed the alternative site. He said he drove by that site located east of Wakarusa and north of 15th Street. He said the City occupied the high ground and it was a one story building from the street and two story building from the back meaning as going north on that site it went downhill. In fact if driven that site, there was a creek that ran in the back and those elevations were dropping off.
He said they had a 150-foot setback requirement. They had to be back far enough from the property line so that the tower could not fall on the adjacent property. He said from looking at that site there were some practical limitations from being located there. One limitation was that you might be looking at a taller tower because the site was going down. Once they reached 200 feet it was a lit tower or a strobe at night and a flashing light in the daytime. If they ever wanted to expand that facility, it seemed that they would be expanding east and north because that building sat at the west edge of the lot and their tower and related facilities would be at that location. He said it was not a desirable site from his client’s standpoint. In fact, there was a substantial residential development across the street.
He said when they first approached the City about that tower, they were going to build on the east side of the existing tower and use access point, but the Fire Department said they might use that site for a fire station. Therefore, he said they moved the site to the west, rearranged the access point with a gravel road through the main entrance to the water site. He said their access by the plan, if the City Commission approved that plan, was required to be off a road that they would need to construct.
With respect to the alternate site, it was not a site that would be workable. One reason was because of the terrain.
Commissioner Schauner said he had a concern about those cell tower technicians, for the existing tower, having access to the ground where the water treatment plant was without checking in. He said that would seem to be a lapse in the security for that facility. He said if that was true, he thought that needed to be corrected yesterday. He asked with respect to the cell tower, whether the City had any policies with respect to clustering or farming of cell towers.
Finger said the City’s policy was that they would look at existing towers to see if they could be served on those towers. She said if that could not be done, they would look at an area near that location. She said the City did not have a “cell farm” requirement as some communities did.
Vice Mayor Rundle said one of the Planning Commissioners suggested to ask the community to find out what the City’s collective preference was.
Finger said there were consultants that did that type of work. There were different frequencies that most of the tower operators were on so the City would be hiring someone to come in, look at the high sites that they had and evaluate what the coverage was, where the existing towers were and give an idea of the existing locations where that would work. She said that would be either placing the priority of minimizing the towers or what the City and Planning Commission had said in the past was that they wanted to minimize the visibility which meant that they accepted multiple towers over what they could have if they had maximized the location and the height and minimized the number.
Commissioner Highberger said it might be good to address the issue of clustering towers and ask for public input before they approved future towers, but as far as that tower went, the notices that were provided to the neighborhood and all of the other evidence presented indicated that if another tower was going to be placed that was a good location for that tower. He approved the location of the tower with the provision that the City Commission gave some consideration to looking at a policy in the future.
Commissioner Hack said she agreed with Commissioner Highberger. Those towers were here to stay. She appreciated Wheeler educating the City Commission on what those areas needed. She said the issue of towers needed to be addressed by the Commission.
Commissioner Schauner said this was the classic nimbi “not in my back yard” type of construction. He said he empathized with the Wheeler’s concerns because he did not want to look out his back door and see a tower.
He said if they clustered those towers then they increased the impact of Wheelers view, if they placed those towers all over town they affect more peoples view. He said, given the options that the Commission had available, approving that particular location, for that particular tower, was consistent with City policy and was in the best interest of the community. He supported the proposed location of the cell tower.
Vice Mayor Rundle said what Planning Commissioner Johnson was referring to was getting a community sense of if they wanted to have a tower farm or spread those towers.
He said this was not a need that would lessen. He said if they were assessing cell phone needs in general and trying to be proactive in identifying potential sites so that the community could decide together, when someone needed to have additional services, the Commission would have some plan to where those towers would be located.
Finger said not to put down Lawrence, but if you ask for Lawrence’s opinion on any one issue, you would not have less than a diversity of three. She said there were many and varied opinions in Lawrence.
She said there had been communities that had the entire community studied by a technician. She said staff could have a technician come into this community to evaluate this community for the best sites. The City Commission then could approve a plan that would indicate those were the sites where cell towers could be located. She said she understood that the technology was improving and towers were something that did not need to be accepted in the future because 15 to 25 years down the road, a different technology might be looked at.
Moved by Rundle, seconded by Hack, to approve a Use Permitted Upon Review request for placement of a cell tower Clinton Water Treatment Plant facility at 2300 Wakarusa Drive. Motion carried unanimously. (18)
Mayor Dunfield moved to recess for 10 minutes.
Receive draft resolution from the Lawrence Bill of Rights Defense Committee concerning USA Patriot Act.
The City Commission reconvened at 9:00 p.m.
Jean Phillips, associated with the Law School at K.U. and speaking on behalf of the Bill of Rights Defense Committee, said she was not part of the defense committee, but she was asked to prepare a presentation for the City Commission about the Patriot Act to give the Commission some type of counter point to the U.S. Attorney’s and government’s position. She said she was a defense attorney practicing for approximately 14 years. She said her area of expertise was only going to go toward the criminal law enforcement issues unfortunately she could not give the City Commission a lot of information about the library issues which were part of the resolution.
She said she read the letter that was provided to the City Commission by Eric Melgren, U.S. Attorney, District of Kansas, which talked about the 10 myths of the Patriot Act and the Government’s response in an attempt to debunk those myths. She said several of those issues that were in that document were perhaps true. The problem was that it did not deal with all of the provisions, but only parts of the provisions and that document did not necessarily deal with the way that all of those previsions get integrated and how they actually could affect law enforcement. She also said as a result of that, some of the information in that document, in her opinion, was only half true.
She said there were a lot of provisions in the Patriot Act that she did not have a problem with. She said either those provisions codified what was already existed in Constitutional standards or simply streamlining as a result of some technology issues, but there were some issues that did bother her.
She said the Patriot Act was a larger document which involved 40 agencies and dealt with 350 subject areas and it was passed in less than 6 weeks of September 11th. Anyone who had knowledge about Congress knew that a document could not be put together that size, given adequate debate, and adequate consideration to all the various provisions that were within that document within less than 6 weeks. She said there were some issues in that document that were swept up in the emotion after September 11th.
She said the main thrust of the Patriot Act was that act’s intention to broaden and strengthen law enforcement tools of investigation, procedure, and methods to be used against terrorist groups. She said while that was a noble goal she contended that the changes were not restricted just to terrorism, that they applied generally to criminal law enforcement, that some of those changes involved loosening restrictions on electronic surveillance and the secrecy of grand jury proceedings and she dealt with the governments contentions that there were hoops that needed to be jump through and it was not automatic, so there was protection.
She said there were increased powers with regard to immigration issues. She said the two issues that bothered her, were that it strengthened the relationship between agencies that were focused on intelligence gathering law enforcement and prosecution and it also modified the definition of terrorism to include a definition of domestic terrorism which could be startling.
She said the last time she debated that issue with Melgren, one of the issues that was contended by the government was that abuses could not be pointed at. She said there were instances of abuse that were going on such as the Drake Law School had a situation where one of their clinical attorney’s represented peaceful war protesters, protesting the Iraq war. A number of those individuals were arrested, detained, subpoenaed, and gag orders were issued all in an effort to figure out if those people were terrorist sympathizers. It was a harrowing week for the Drake Law School and for the subpoenas that were issues for those individuals. Eventually, it all worked out, but the point was that there were peaceful American citizens who were tying to voice their thoughts about what this government was doing in Iraq, who were being challenged.
She talked about some of the problems with the Patriot Act. Prior to September 11th, the Foreign Intelligence Surveillance Act (FISA) purpose was to monitor foreign powers and agents. Under FISA, wiretaps could be acquired if national security was the purpose of the tap. There was an omnibus Crime Control Act of 1968 that stated there needed to be probable cause at that target that you were tapping, was involved in an illegal act, and it had to reveal the warrant to the target within 6 months and the purpose was national security. She said they changed that and after September 11th, you could now get a FISA tap if a significant purpose of the tap was foreign surveillance which meant it did not need to be “the” purpose anymore. Part of the danger out there was that foreign intelligence was a purpose of why they needed to tap a minority, particular a middle-eastern organization here in Lawrence because it was part of a purpose. When looking at that issue in terms of FISA, if the same level of probable cause did not need to exist as it did under traditional notions of the 4th Amendment, it was a lower standard. She said that did not need to be revealed to the target except within 6 months. Typically when doing this type of investigation within local law enforcement, you need to reveal that more quickly. She said the act also allowed for roving taps, pen registers, trap and trace devices.
She talked about what happened prior to September 11th. She said equipment could be tapped if there was probable cause that “a phone” was being used for illegal activity. She said a person could get a roving wire, meaning you could tap the person, and not the phone, but you would need to establish that target was purposely changing phones to avoid detection. She said you could also use pen registers which was recording the telephone or the ISP number that was dialed out and use trap and trace devices which was recording the numbers that were being dialed in, but again, you would need probable cause.
She said in post 9-11 where you tap the person rather than the equipment and there was broadened powers as to pen registers and the tap and tracing devices no longer were you able to get just what number was dialed in or out, but now you could track internet usage, routing, email, and websites. It was not just the numbers you were tracking any longer. She said the government could do some of this before hand and that was in one of the documents that Melgren sent which indicated they could do that before, but the hoops that they had to jump through were much higher and it was more than a probable cause standard and you would need to establish, sufficient to the court, the reason for that greater invasion of privacy and those barriers had been removed from that with a broader legislation. It was a simple warrant that would get you that information.
She noted that the Internet Service Providers (ISP), now were required to turn over information without the users permission or knowledge and you could seize business records without disclosing it to the employee so there was some notice issues there that did not exist prior to the Patriot Act.
Another issue of concern was the increased powers to address immigration issues. Under pre-9-11, if convicted under certain crimes, you were deported. If the country would not take you back, you could be held pursuant to INS procedures. She said now what happened was that you were allowed to detain non-citizens suspected of terrorism for 7 days and you would either need to charge them or let them go. She said her issue, which tied back to terrorism and why one of her concerns with the Patriot Act was the broad definition given to domestic terrorism was at the Attorney General’s Office. She said they now had the discretion to define terrorism. That decision was only reviewed following a habeas petition. She said they admit that in the document that was given to the Commission by Eric Melgren that said there was judicial review because they could file a habeas petition. She said that was when they got into half-truths. Under the Anti-Terrorism Effective Death Penalty Act which was passed April 23, 1996, the ability to win under a habitués petition was just as about as likely as it was that she could fly. She said she had been doing post conviction work for 10 years and she watched the decline in success in being able to make an argument. The standards were so strict you have to be able to show under those standards that not just that the Constitution was violated, but that it as violated in an unreasonable manner. Case law said you could be incorrect, but as long as you were reasonable in the way that you had done that there was nothing that the federal courts could do about that. The immigrants’ lack of ability to utilize habeas proceedings really meant that the Attorney General had the discretion to decide what constituted terrorism.
She talked about the definition of terrorism. She said prior to 9-11 terrorist groups were limited to those that were designated by the Secretary of State, they were not in control of the Attorney General’s office. The Patriot Act expanded the definition of terrorism to include groups that engage in violence or destruction of property. It was not limited to foreign or international groups and the Attorney General could designate them. She said she had been a criminal defense attorney for 14 years and that definition would include all of her clients. She said that was a very broad definition of terrorism. When you consider that the Attorney General was the one who was making that decision, she suggested that was the “fox guarding the hen house.” She said the ability to have faith in that depended on how much you trust the person who was in power. She said that was the whole point of the Constitution which was checks and balances and the checks and balances were gone with the Patriotic Act.
She said it strengthened the relationship between agencies and that was actually touted as a big reason why the Patriotic Act was an important act to pass.
She reminded the City Commission about the history. She said prior to 9-11, Jimmy Carter in the 1970’s signed legislation that intentionally separated National security and law enforcement agencies. The reason was because prior to the passage of that legislation, CIA, FBI, and the military engaged in extensive illegal wire-tapping and surveillance of political groups. They used to monitor the antiwar activities and protest that were used during Vietnam and she suggested that was what Drake Law School experienced a couple of weeks ago. She said they used to monitor the civil rights movement. She said it led to the wire tapping of Martin Luther King. When the FBI couldn’t find anything that was criminal, they turned to the CIA to get personal dirt on Martin Luther King and whether or not he had a mistress. It was used by Nixon to tap during Watergate. She said it was because of that ability to get together and corrupt the power that intentionally legislation was passed to separate those out.
She said now post 9-11 they had purposeful reuniting of those agencies and a sharing of information. She said it seemed like history was being repeated. She said you go back a look what happened and you have expanded wire tapping capabilities, you have a modified definition of what constituted terrorism and you now have local law enforcement being able to go after their own people if you decide that the war protesters happened to have some terrorist sympathies. She said you get into a situation where being able to share that type of information particularly when you pull in Foreign Intelligence Surveillance Act (FISA). She said your standards were less under FISA. She said you could get warrants under FISA on a much lower standard. She said when talking about standards, if this was 100% something lower than that beyond a reasonable doubt was required to convict. You go down from that to clear and convincing evidence which was often the standard they used on appellate review. You then go to the preponderance of the evidence which occurs in some tort cases which was typically 51/49. From there, you go down to reasonable suspicion. A number if those provisions allowed officers to operate based on reasonable suspicion.
One of the other problems with the Patriot Act was that the Department of Justice (DOJ) was passing regulations that they contend were provided for under the Patriot Act and perhaps those were some things that Lawrence wanted to take into account. One of those was material witness detention. She said prior to 9-11 you could hold a government witness in a prosecution to guarantee they would be present to testify. The witness was to assist the government and they weren’t considered dangerous in and of themselves, they were there to testify to help the government.
Post 9-11 Department of Justice was now interpreting the material witness regulation and they had defined a material witness as a person believed to be dangerous. So they were not using the material witness provision as an investigating tool.
The DOJ has adopted some regulations that allow you to monitor attorney/client conversations. Government agents could monitor communications when reasonable suspicion to believe that the detainee would use that communication to facilitate violence or terrorism. She said there were some defense attorneys in Minnesota who were representing individuals and the government believed that information was being passed and now they had prohibited that attorney from having confidential conversations and that attorney was being prosecuted.
She said you have this major shift in the function of the Attorney General. Traditionally, the Attorney General was a prosecutor and if a crime occurred, DOJ investigated along with the various branches of law enforcement and if the individual was convicted that individual was sent to jail. Now they had the prosecutor seeing himself or herself as the protector of national security and their primary goal was to prevent terrorism which created totally new rules for law enforcement.
She said there was a lack of checks and balances, increased secrecy, and knock and announce which was a myth that was debunked in the government’s comments. She said there were situations where you did not need to knock and announce, but just bust into the door. She said sneak and peeks allow them to go in when you were not there. She said there was difference on how this stuff was being pulled together.
She said they were using traditional law enforcement, whose job was to investigate crime, to fight a war on terrorism and that was not their role. She suggested when you allow that type of decrease in checks and balances and allow them to operate by saying there were no abuses, did not mean there was not a problem.
Khris Kobach, counsel for Attorney General Ashcroft from 2001 and 2003, said he resigned that position on July 11, 2003. He said his comments would not be as a spokesman for the U.S. Government, but rather as a Professor of Constitutional Law at the University of Missouri, Kansas City School of Law. He said he wanted to provide some commentary on some of the charges that were made and some of the issues that had been brought to bear because there was a lot of disinformation and he wanted to address some of the specific arguments that had been made.
He said the Patriot Act was a direct and measured response to the fact that over 3,000 Americans were dead after the horrific events of 9-11 and also a response to gaps in our law facilitated that attack on American homeland. The day after the attacks, the President had Attorney General Ashcroft in the Oval Office and told Ashcroft, “Whatever you do, don’t let this happen again.” The Attorney General took it upon himself to do everything within his power to defend America against future terrorist attack. The Department of Justice put together a huge team of attorneys to draft what later became the Patriot Act under the leadership of Assistant Attorney General Viet Dinh in the Office of Legal Policy. He said there were probably more than 100 attorneys, career attorneys, and political appointees from all corners of the Justice Department all providing what evidence or what information they knew about gaps in our law.
He said the reason he brought this issue to bear was that the Patriot Act fixed the obvious problems. The Patriot Act was not drafted within 6 months after 9-11. He said the Patriot Act fixed the gaps that were obvious when 9-11 occurred. He said things were so obvious it had to be done such as sharing information between intelligence agencies. He said there were obvious needs to have better communication between the CIA and the FBI. One of those needs was sharing information between grand juries and Federal Law Enforcement Agencies only when necessary to prevent an imminent attack and updating wire-tapping authority. He said authority that had been drafted in the 50’s and 60’s and did not take into account the modern type of cell phones that could be picked up in a shopping mall and that someone could obtain several cell phones during the course of one day.
He talked about three of the most often attacked provisions of the Patriot Act in recent public debate which was mentioned in the resolution that was drafted. He said those provisions in the Patriot Act were 215, 213, and 412.
He said in Section 215 that was the myth that John Ashcroft was watching and knew what you were reading. He said that was the section that allowed the United States Government to obtain public records and private records or businesses documents in the process of a terrorism investigation.
The first myth was that the critics failed to mention that Section 215 had never been used. This was an obvious need to obtain tangible records.
He said secondly, if Section 215 was ever used in future, the FBI or other law enforcement agencies must first persuade the FISA Court that the associated documents were either associated with foreign intelligence or with international terrorism and also if there was a U.S. Citizen that was at the subject of the documents must also establish that no First Amendment activities were involved in a document sought. There was protection throughout the Patriot Act where ever First Amendment protective activities might be touched.
He said the third point, the kind of business records that would be obtained under Section 215 were often critical in establishing the link of evidence to determine whether an individual was involved or might be involved in a future terrorist attack. For example investigators had been using similar authority in non-terrorist cases for years such as hardware store sales, records from a chemical plant, bank records in money laundering or to see whether actual transfers of money or criminal activity took place that was part of a criminal prosecution.
The fourth point was that grand juries had been doing this for years and grand juries did not normally need a Judge’s approval as opposed to the hypothetical future use of Section 215 where Federal Law Enforcement Authorities needed to acquire a Judge’s approval and show probable cause.
He said one final point was that Congress, when it granted this authority, established that the Justice Department must report to Congress every 6 months on whether it had been used and what was the effect and then Congress issued a statement on whether or not there had been any abuses. He said the latest report was that they had not used that Section yet. He said the House Judicial Committee said the committee review of classified information related to FISA orders for tangible records had not given rise to any concern that the authority was being misused or abused. He said he imagined reports in the future would be similarly worded.
He talked about Section 213, the so-called “sneak and peek” provision. He said this had often been portrayed as some outrageous new power granted to the Justice Department. He said this section allowed the FBI, with court approval, to temporarily delay notifying a property owner that his property was being searched or had been searched. If notice would result in an adverse result namely that he might flee the Country or destroy documents or intimidate witnesses before the agents could acquire sufficient evidence on which to base an arrest. In such cases the court may only grant authority for the delay of the search warrant for a reasonable period of time. He said the possibility of seeking delayed notice was a long-standing law enforcement prerogative and it had been sanctioned by a variety of Federal Courts and a variety of criminal context. He said Section 213 merely codified the varying judicial decisions on the subject and established one nationwide standard. Portraying Section 213, delayed notification, as being something new and dangerous was simply false. That section was used most often in organized crime cases, drug cases, and child pornography cases for delayed notification.
Secondly, portraying it as some sort of unnecessary power was simply wrong. Delayed notification served a number of purposes. Not only would you prevent the destruction of the evidence, but also many times you protect the law enforcement officer or a source. If you have an individual who had his life on the line because he was following a target of investigation and then the target knew that a search had been conducted then he might in turn suspect the source. He said you were talking about protecting lives of intelligence officers and law enforcement officers who were conducting the search. He said this was not some casual thing that the government did whenever if felt like making a search easier.
Thirdly, a Federal Judge had to authorize the warrant and authorize the fact that there would be delayed notice in that instance.
Fourth, the Supreme Court had held unequivocally that the Fourth Amendment did not require prior notice or contemporaneous notice of a search warrant being executed.
He talked about Section 412 which was vast expansion of immigration detention authority. He said what that did was to allow the government to detain a suspected terrorist while his deportation proceeding was going on. He said having committed a terrorist act might be a basis for removal, but interesting under U.S. Law membership in a terrorist organization was not a basis for removal from the country under current law.
He said Section 412 had never been used. He said there were 762 aliens detained at one time or another during the 9-11 investigation. He said all of those aliens had violated Federal law, but in none of those cases was Section 412 used because immigration courts had for year’s detention authority whenever any individual presents a flight risk or a danger to the community. He said in all of those cases detention was at the pre-existing detention authority use. He said this section of the Patriot Act had never actually been put into practice. He said if it were put into practice, it could only be used if the government established reasonable grounds that an alien had entered the U.S. to undertake espionage, sabotage, oppose the U.S. Government by force, engage in terrorism, or threaten national security. He said if it were ever used in the future, it would be done with adequate supervision.
Finally, he talked about why they would detain someone during their removal proceedings. He said the Inspector General of the Department of Justice in February 2003, presented a report on the effectiveness of the Department of Justice and Immigration Courts in removing aliens who had their day in immigration court, maybe all the way up to Board of Immigration Appeals or U.S. Courts of Appeals. He said once they had a final judgment, he asked, how successful was the United States in actually removing the aliens from the Country. He said the results were shocking. He said when you get your final order from the Immigration Court it was known among the Immigration Law community as the “run letter.” He said they did not, in most cases, detain an alien during those immigration proceeding. He said 87% of the cases where an alien had his day in immigration court, has had all his appeals, and was finally adjudicated removable, the alien runs. Among aliens coming form states sponsor of terrorism the absconding rate was 96%. He said if you did not hold on to the alien and you expect them to follow the removal order, once the order was finally adjudicated, you rarely had any success. He said this was why you have detention authority in critical cases like this. For the U.S. Government not to detain, in the wake of 9-11, when an alien was here in violation of the law and connected with a 9-11 investigation, would have been profoundly irresponsible given those absconding rates. He said there were 400,000 absconders currently in the United States, many with serious felon records and it was a mockery of the rule of law. To ignore this fact in a terrorism investigation would be profoundly irresponsible.
He walked through the resolution that was currently before the Commission and pointed out the more problematic parts of that resolution. He said if the Commission decided that they needed to make a statement tonight, he suggested that the City Commission doing it through another resolution and not the resolution that was presented. He said that resolution was rife with legal error. He said he did not think the City of Lawrence should embarrass itself by putting this resolution on the record.
He said in the proposed resolution when looking at the “Whereas” section, No. 5 stated: “Encourages large-scale investigations of citizens for intelligence purposes, without search warrants or a showing of probable cause to believe crimes have been committed.” He said there was no part of the Patriot Act that authorized the large-scale investigations without search warrants or probable cause. He said No. 6 stated: “Eliminates due process for U.S. legal residents and citizens born abroad.” He said there were not changes in court procedures that the Patriot Act would put into place.
Finally, No. 7 stated: “Authorizes the government to monitor communications between federal detainees and their lawyers, in gross violation of the canons of legal ethics and the rights to privacy and trial counsel.” He said that was not in the Patriot Act and secondly it was called the Special Administrative Measures Regulation which was passed under the Clinton Administration and which was a perfectly reasonable measure. There were less than a dozen people in the United States who were currently incarcerated under Special Administrative Measures. He said Special Administrative Measures were the specific security procedures so that when those individuals have conversations with their lawyers, those attorney/client conversations were monitored. He said moreover, the U.S. Supreme Court had said very clearly that attorney/client monitoring of a prisoner was perfectly constitutional if a few basic precepts were followed one of which was that the prisoner must be notified every time that the conversations were being monitored. Secondly, that there could be no communication between the monitors and the prosecutors if the individual was subject to further prosecution. He said you could not share those attorney/client conversations with prosecutors. He said the exact Supreme Court standards were replicated in the Special Administrative Measures.
He said another problem in the proposed resolution was “Whereas, the U.S. Supreme Court re-affirmed as recently as 1997 in Printz v United States that local law enforcement officers cannot be compelled to enforce Federal laws nor do they have the authority to enforce Federal laws.” He said he taught Printz v United States in constitutional law. He said Printz was irrelevant to this. He said Printz was about the commandeering of local law enforcement where the Federal Government orders local law enforcement officers to do something. He said there was nothing in the Patriot Act that ordered any local law enforcement officers to do anything.
Another concern was Section 2 “Affirms its strong support for the rights of immigrants and opposes measures that single out individuals for legal scrutiny or enforcement activity based on their country of origin.” He said he guessed that meant proponents of the resolution were in opposition to the entire Federal Immigration code. The Federal Immigration statutes made all types of distinctions based on country of origin. For example, if someone came here from the United Kingdom, he or she was a member of a visa waiver country. United Kingdom citizens did not need to get a visa to come to the United States if they were coming for 90 days or less. That was a distinction based on national identity. He said state sponsors of terrorism; those 6 countries were places where unfortunately you get treated the most harshly under immigration law. The point was immigration law had all types of distinctions based on country of origin. That was how immigration law worked.
He said in Section 3 concerning the Lawrence Police Department, No. 2 stated “Refrain from engaging in the surveillance of individuals or groups based on their participating in activities protected by the First Amendment, such as political advocacy, public or private assembly or association, or the practice of a religion, at the direction or order of a court, such as, but not limited to, the Foreign Intelligence Surveillance Act (FISA) Court, whose proceeding are held in secret.” He said again, there were already provisions in the Patriot Act where First Amendment protected activity were involved. He said Section 3, No. 2, did not apply along with Section 3, No. 5.
He said in Section 3, No. 7 stated “Refrain from collecting or maintaining information about the political or religious views, associations or activities of any person, group, association, or organization, or any membership lists or databases thereof.” He said the relevant words were “Refrain from collecting or maintaining information about the activities of any person or group.” He said that covered all criminal investigation and it was not limited to only certain types of investigation. He said he guessed that the Lawrence Police Officers would not be able to retain information about groups or individuals. He said it would be hard to investigate crimes.
Another concern was Section 7, which stated, “Directs the City Manager, with assistance from the Chief of Police, to seek periodically, at least every six (6) months, from federal authorities the following information in a form that facilitates an assessment of the effect of federal anti-terrorism efforts on the residents of the City of Lawrence.” He said there was absolutely no way that any of that information would be obtained from Federal Authorities or should be given by Federal Authorities.
He said in No. 1 of Section 7, the circumstances that led to each detention were the problem. A lot of that was based on classified evidence. If an individual was detained as a result of terrorist investigation, the circumstances leading to the detention would involve sources in methods, might involve CIA operators oversees. He said you could not demand from the Federal Government that information. He said that information would never be given because it would compromise on-going investigations and the safety of lives.
He said in Section 7, No. 3, “The extent of electronic surveillance carried out in the City of Lawrence under powers granted in the Acts and Orders.” He said you could not publicize or grant in a non-confidential situation that information. He said that was classified material.
Also, in Section 7, No. 5, “The number and types of education records that have been obtained form public schools and institutions of higher learning in the City of Lawrence under Section 205 of the USA Patriot Act.” He said this had not been not been done.
He said in Section 7, No. 6, the number of library records was already required. He said the Federal Government had to report to Congress the number of library records.
Lastly, he discussed the problems of enforcement. He said let’s say that he had not persuaded the City Commission and the Commission thought the Patriot Act was unconstitutional despite the fact that numerous legal challenges had been brought. He said there was only one district court in California that had found any violation and that was a highly hypothetical case where an argument was made that a group that was performing public advocacy on behalf of the PKK and the Tamel Tigers and that an argument was made that it would constitute providing material support to a terrorist organization. He said if he went out to the steps of the steps of this City Hall and said that he supported the PKK and they should continue their struggle, that it was a huge stretch where and attorney, a fellow law professor from Georgetown, made an argument that that could theoretically be considered providing material support to terrorist by making some public speech. He said expert advice or assistance was building bombs, flying planes, or assembling chemical warfare agents. He said that was clearly the intent of Congress. He said there was nothing in the Congressional record that suggested that public speeches by advocacy groups were considered expert advice to a terrorist organization.
Concerning the Lawrence Police Officers, he said if the City Commission wanted the Lawrence Police Officers not to be involved in anything that was affected by any of those offending provisions of the Patriot Act that would be difficult. He said typically, when the FBI was investigating a target who was a potential terrorist, the FBI had all types of information. He said the FBI might have some information that was shared from the CIA to the FBI pursuant to the Patriot Act; information that was obtained without any reference to the Patriot Act; or information that was obtained from grand jury testimony and shared with the FBI because of an imminent attack. He said there were all types of possible sources. The FBI was not going to, nor should it need to, layout all the different sources so that a Lawrence Police Officer should try to assess if the arrest primarily based on patriot sources or non-patriot sources. He said they were all woven together. Moreover, that resolution objected to some types of detention. He said they did not know whether an individual was going to be detained ultimately as a material witness or if the individual happened to be an alien and the government decided that the best option was removal and so he was detained as an alien. He said the only way the City could actually have the Lawrence Police Officers be true to this, would be to have the City’s officers withdraw completely from any arrest or any investigation where the FBI suspected terrorism. He said he thought that would be a profound disservice to the country and would potentially endanger Lawrence residents. He said that was the only way that the offices could enforce that resolution which was to withdraw completely.
He discussed a quote from the Senator Dianne Feinstein of California. He said Senator Feinstein was hearing some of the public criticisms of the Patriot Act and Senator Feinstein were understandably worried that she might come under political scrutiny if she continued to support the Patriot Act. Because of this possible political scrutiny, she wrote a letter to the ACLU asking for specific examples of individual cases where civil liberties or constitutional rights had been violated under the Patriot Act. He said to Senator Feinstein’s credit she released the following quote: “I have never had a single verified abuse of the Patriot Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none.” Senator Feinstein then released this statement publicly which said until she saw any evidence of any constitutional violation, she could not change her position. The bottom line was that there had been so much smoke that what was beneath that smoke was not fire, but a lot of hot air.
Vice Mayor Rundle asked about Section 215 and having access to public records for suspicion of narcotics or organized crime at any time. He asked if there was any difference in the standards of who might be placed under surveillance under the Patriot Act.
Kobach said Section 215 did not involve the surveillance provisions. He said Section 215 was obtaining business records and that was common practice in non-terrorist cases to get business records when someone builds a bomb.
Vice Mayor Rundle asked if “cause” had to be shown.
Kobach said the same standards were applied to the Patriot Act and there was no lowering of the standard. He said you need to get a judicial approval and show probable cause.
Vice Mayor Rundle said a businessperson said that he spent several weeks installing special software for tracking all of their financial clients and passing on information. He said that sounded more like a blanket transmittal of information, than getting access for a reasonable cause.
Kobach asked if that person was an Internet Service Provider.
Vice Mayor Rundle said the person was a financial planner.
Kobach said there was no requirement under the Patriot Act that he was aware of. He said if there were some reason they as a private entity came up with evidence that there was something that would place someone in imminent danger that was related to a terrorist attack, they would have authority, if they wished, to provide that information to the U.S. Government.
Commissioner Highberger said he had a concern under Section 215, an amendment to Section 501(d) of the Foreign Intelligence Surveillance Act. He said that section provided that “No person shall disclose to any other person, other than those persons necessary to produce the tangible things under this section that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” He said earlier this year he had sent an inquiry out to the Lawrence Chief of Police concerning this City’s library, to ask if any request had been made under the Patriot Act for information. He said the way that he read that section of the Patriot Act, if there was such a request, that information could not be told.
Kobach said you could not provide information to government officials who were not involved in the investigation, but that was why the DOJ was reporting to Congress. He said Congress was essentially stepping into your shoes so they could look in classified proceedings at every instance in which it had been used and Congress would make their assessment about whether it was being abused.
Commissioner Highberger said hypothetically if a request was made to this City’s library for library information and he asked the head librarian if such a request had been made, the head librarian would basically be obligated to lie under those circumstances.
Kobach asked if the individual who might not provide that information, he asked, was that a law enforcement officer.
Commissioner Highberger said the Director of the Library. He said that section seemed to be inconsistent with the reporting sections of the provision.
Kobach said even in that situation hypothetically, the individuals could say that they were not at liberty to disclose that information.
Moved by Rundle, seconded by Schauner, to extend the meeting until 11:00 p.m. Motion carried unanimously.
Commissioner Schauner asked if the annual report made by the FBI to Congress made was part of the Congressional Record.
Kobach said unclassified elements Congress was free to publicize. He said for example, the number of times would not be classified.
Commissioner Schauner said but the specific information about whom, when, and where would be considered classified.
Kobach said unless the FBI declassified that information. He said these were some members of Congress, as Committee members, who were cleared to see the information and then render their conclusions.
Commissioner Schauner asked if all members of Congress were cleared to see that information.
Kobach said he did not think all members were cleared, but it depended on which committees they served.
Vice Mayor Rundle said when there was talk about immigration, past and present, it was said they always had the power to detain a suspect if they were a flight risk or a danger to the community. He asked if there was in the past a process for establishing suspicion.
Kobach said there were many challenges and bond proceedings to the more than 700 aliens that were detained after 9-11.
He pointed out that on any given day in the United States approximately 19,000 aliens were in detention because they had met that standard of presenting a flight risk or danger to the community. He said this was not unusual and there were a lot of aliens that were seen as presenting that risk. He said what was amazing was that nonetheless they still had more than 400,000 absconders loose in the United States at this time.
Vice Mayor Rundle asked Kobach if all people that had been detained had established some suspicion before they were detained.
Kobach said yes. He said if you were arrested by the INS which was now the ICE and they made a determination that a person was here illegally, then they initiate removal proceedings. One of the initial hearings was the detention hearing. At that detention hearing, the ICE, the Federal Government would state that person was a flight risk and present all of the evidence establishing that finding. The Immigration Judge would then allow the alien or the alien’s attorney to contest that finding and could argue for a number of issues. He said typically a bond amount would be set, but if the government wanted to detain that alien, then the alien had the opportunity to contest that decision and there would be an immigration court decision that could be appealed all the way up the chain as to whether or not to detain that alien. He said Immigration Judges were notoriously lenient if an alien asked for an attorney or if the alien said he did not understand what was being said thus, giving the alien multiple opportunities to contest. He said Immigration Judges were extremely cautious when applying detention authority. He said it would be exceedingly irresponsible for the Federal Government not to use this authority that already existed pre-Patriot in the case of terrorist investigations. If you were talking about state sponsor of terrorism, 96% of those aliens became fugitives after they received their court order.
Commissioner Schauner asked how many people were currently identified as terrorists and in detention.
Kobach said by July, when he left the Department of Justice, they were down to a few dozen out of the initial more than 700. He said all them were found to be in violation of the law. The Inspector General drafted a report evaluating the Department of Justice conduct. He said all of those aliens were in violation of Federal law and it was a matter of going through the proceedings to have deportation executed.
Commissioner Schauner said beyond that initial group of 700, he asked if there were any additional alien terrorists.
Kobach there were a few after the initial 700. He said there was an initial investigative flurry. He said he would say there were very few.
He said there were multiple options, when an individual was suspected of terrorist activity and they were from a foreign country quite often they were here illegally as well. The Department of Justice had to decide whether there was enough evidence for a criminal prosecution or whether the individual should be deported because even though they thought that individual was involved in terrorism and perhaps they had some record that individual was involved in blowing up a bus in Egypt ten years ago and if they did not know if that individual had done anything here in the U.S., but they still knew that individual was involved with a terrorist organization. In that situation where there was no evidence of criminal activity here in the U.S., the rationale and appropriate decision was that individual was violating immigration laws and that individual would be deported, but not prosecuted. He said there might be cases that had arisen since he left the Justice Department where that decision was made where deportation was considered the best option instead of prosecution.
Mayor Dunfield called for public comment.
Jim Flory, 1st Assistant, United States Attorney for the District of Kansas and speaking as a life long resident of Lawrence, said he was concerned about the protection of fundamental constitutional rights and civil liberties. In fact, for the past 37 years, he made his living protecting civil liberties and constitutional rights in this community. He said every job he has held since 1966 had involved taking an oath to uphold and defend the Constitution of the United States. He said nothing in the U.S.A. Patriot Act gave him the slightest pause in being able to do good faith to that oath that he had taken.
He said he would like to focus on the resolution itself and what he found troubling about the resolution. He said the resolution was full of misrepresentations and misstatements. He said it was flawed both factually and legally. He noted that Phillips, in her very articulated presentation, indicated that a number of things bothered her about the Patriot Act, but this resolution was not about what bothers someone. The whole resolution was premised upon the theory that the Patriot Act and the legislation mentioned “infringes upon our fundamental constitutional rights and liberties.” In other words, the resolution was premised upon the theory that act was unconstitutional. If that premise was not factually or legally correct, the resolution must fail and he submitted that was exactly the case.
He said this legislation had been on the books for over 2 years. Not a single Federal Court had found any of the provisions contained in the resolution about searches, seizures, surveillance, electronic surveillance, and search warrants. He said none of those had been found to violate the Constitution of the United States of America. He said there was simply no rational basis for the proponents or the City Commission, he submitted, to conclude that the Patriot Act was unconstitutional. If you want to find that it was bothersome, they were more than free to do that, but what that resolution was asking the City Commission to do was find that it was unconstitutional, not withstanding the fact that no Federal Judge in this country had done so, and then pass a resolution asking your subordinates not to cooperate with the Federal Government on that basis.
He said it was easy to understand why citizens who had read that resolution or perhaps read the advertisements in the Lawrence Journal World, why they might be concerned. He said if he did not know the facts of the law, he would be concerned because in the advertisement in the Journal World, it stated that the government might view your private email and listen to your private telephone conversations without probable cause. That was ludicrous, incorrect, a misstatement, and that could frighten the members of this community about what their Federal Government could and could not do. He hoped that the City Commission would look very carefully at the law and the things that were contained in the resolution.
He said he was going to talk about the “sneak and peek” and the “black bag searches” because they sounded so sinister, but Professor Kobach covered those and the fact of the matter was, the authority to delay notification following a search warrant had been in the law for years. Judges and courts have set out standards which must be followed and the only thing that the Patriot Act did was codify them which it took the case law and put into the United States Code. He said any indication that there was this new broadly expanded search authority that had no judicial scrutiny was absolutely and unequivocally wrong. There has been no minimization of judicial supervision over electronic surveillance. There was nothing what so ever that minimized the level of judicial authorization or oversight. Judicial authority was still required for wire taps. There was constant judicial oversight on wiretaps during the interception. Judicial authority was required for any search warrant based on probable cause.
He said his point in his presentation was that people had an absolute right to disagree with the provisions of the Patriot Act. He said he defended, and had defended, for 37 years citizen’s rights to stand before the City Commission and say that they did not agreement and he would protect that right, but there wasn’t a right to alarm our community with false and misleading information. If there was to be a debate it should be based upon the facts and the law and not emotion. If there was to be a debate on the Patriot Act, it should be done in Congress and not the Lawrence City Commission.
He said as the second highest Federal Law Enforcement Official in this State, he was not aware of a single complaint that had been forwarded through their office that had presented any claim or violation of a person’s constitutional rights or civil liberties in the State of Kansas based upon the provisions of the U.S.A. Patriot Act. He asked the City Commission before acting, to be satisfied that they were acting, if they were acting at all, on sound, factual, and legal information.
Commissioner Schauner asked Flory if he believed that Section 218 of the Patriot Act did not amend the probable cause requirement before conducting secret searches or surveillance.
Flory asked what that was contained in.
Commissioner Schauner said it was part of the U.S.A. Patriot Act. He asked if Section 218 had amended the probable cause standard.
Flory said that was strictly under the Foreign Intelligence Surveillance Act. He said in 12 years with the Department of Justice, he had never had any contact with the FISA Court.
He said Section 218 was the information sharing provision, and he certainly supported the information sharing provision where the grand jury information, should it become available, could be shared with the intelligence community.
Commissioner Schauner said that was not his question, he said he was asking whether Section 218 which amended the probable cause requirement before conducting secret searches or surveillance was a lower standard than the probable cause requirement that existed before the U.S.A. Patriot Act.
Flory said he could not answer Commissioner Schauner’s question. Again, he said he had never dealt with the FISA Court.
Steve Lopes, Secretary/Treasurer of the Douglas County Chapter of the American Civil Liberties Union and the past President of the Kansas ACLU, said he was speaking on behalf of the more than 350 involved ACLU members who resided in Douglas County and over 400,000 nationwide. He said ACLU not only objected to the provisions of the U.S.A. Patriot Act, but also was actively challenging its implementation in courts across America. He said they also opposed the provisions of the proposed U.S.A. Patriot Act 2, which attempted to further restrict our freedom. He urged everyone to visit the ACLU.org webpage.
He addressed the comments made by the previous speakers against the resolution and in support of the Patriot Act. He said he thought the U.S. Attorney’s were being slightly disingenuous in being selective in nitpicking their resolution. He had been following the Patriot Act on the ACLU list serve since it was originally passed 2 years ago. One of the consistent problems that ACLU Attorney’s had was obtaining the “stuff” to get a lawsuit. He said they could not visit their clients, they could not find out what they were charged with, and they did not even know their locations. A lot of the traffic on their webpage had been that they had lost the tools that they had at one time to do their job. He said that was why they did not have a case headed to the U.S. Supreme Court.
In hindsight, even the most patriotic citizen must agree that on October 26, 2001, Congress acted in haste by passing a seriously flawed 342-page bill in less than a day. He said this bill under minded many of the rights that defined America. To be generous, the U.S.A. Patriot Act was a well-intentioned mistake which was decided without deliberation and deserved serious consideration as over 250 cities, towns, and state governing bodies had already suggested. He hoped Lawrence would be the 251st.
He said President Bush had said many times that the terrorists hate us because of our freedom, but instead of protecting the very freedoms that the terrorist resent, the administration had compromised their freedoms through the U.S.A. Patriot Act. Thus, the U.S.A. Patriot Act was a de facto victory for the terrorist because it affirmed the ability of America’s enemies to curtail our freedoms. The Lawrence City Commission to adopt this resolution was to tell our so-called enemies that they would not take our freedom away by default. The ultimate act of patriotism was to resist the so-called Patriot Act.
He said what was before the City Commission was a sense of our community based on over two years of deliberation in many public forums. On March 5, 2002, the Lawrence Coalition for Peace and Justice and the League of Women Voters sponsored “Fighting Terrorism and the Threat to Civil Liberties” which caused a revitalization of the Douglas County ACLU Chapter. Douglas County ACLU, Lawrence Coalition for Peace and Justice, and the League of Women Voters subsequently co-sponsored a serious debate February 13, 2003, how safe, how free, resolved the limitation on civil liberties under the U.S.A. Patriot Act were justified. He said a former U.S. Attorney debated a national ACLU Board member and they responded to questions from many Lawrence citizens. Both meetings played to overflow audiences, as many Lawrence citizens expressed their outrage at the excesses of the so-called U.S.A. Patriot Act. He said not one Lawrence citizen came forward in support of further restricting civil liberties. Clearly, there was strong community support for this resolution.
He said he would like to compliment the Lawrence Bill of Rights Defense Committee for their hard work in crafting that resolution. The movement to reject the U.S.A. Patriot Act might be nationwide, but what the City Commission had before them was a grass roots effort.
He said 150 years ago our nation was struggling with freedom versus slavery and Lawrence citizens had the courage to make the Kansas Territory become the Kansas Free State. Today Lawrence faced a much more serious risk. He asked if Lawrence would chose to fight now on behalf of a free nation. He said this was an historic occasion. Those who supported liberty from the oppressed minority founded Lawrence and in 2004 they urged the City of Lawrence to restore liberties to the oppressed majority. He urged the City Commission to support the resolution.
Commissioner Highberger asked if Lopes had any responses to any of the specific comments Kobach made about the resolution.
Lopes said he was not a part of drafting that resolution. He said on their webpage, the ACLU had a model City resolution and they were involved in promoting it in various communities, but they were not directly involved with that resolution. He urged if the City Commission had concerns about specifics that did not comport to the actual U.S.A. Patriot Act, that the resolution be edited with the “whereas”, but kept the “therefores.”
Tom Van Holt, Owner, Starving Artist, said he joined the Army 13 years ago and during operation Desert Shield with the full expectation that he would be fighting in Operation Desert Storm. He said that was true with most of the people he trained with at Ft. Jackson and Ft. Bragg. He said they joined during Desert Shield knowing that there was going to be war when their company commander told them their unit, as part of the special operations forces, should expect to be in the thick of it. He said they all felt that was just what they signed up for, to fight for their democracy. As it came to pass, the war ended before their training did, but their motives were clear.
He said he was willing to save this country in wartime then, but he was not so certain that he would be willing to do so now. He said we had young people today fighting once again for democracy in Iraq, the homeland security and patriot acts that were unfolding were undermining our democracy in the United States.
Lawrence’s large international population was most obviously touched by this issue. He had many friends from other countries, but he did not see any of his friends here tonight. He said they had the biggest stake in this issue and they were afraid. He said they were afraid of that new legislation that allowed non-elected bureaucrats to arrest, detain, and imprison them without charges, without trial, and without recourse. He said if he attempted to help his friends, by the mere act of bringing attention to their plight, he could be prosecuted. He said this was not the democracy he was going to fight for. He said those acts affect far more than the Lawrence international community. He said as one of the many businesspersons in Douglas County, he could be forced to surrender the limitless amount of confidential information that they had about their customers and employees from credit card numbers to medical history. He said if he or another businessperson was to protest or attempt to warn people, it was his understanding that they could be facing charges.
He said those acts affect even more than Lawrence’s business and public institutions. One of the primary aims in creation of the Homeland Security Department was to break down barriers of information between government agencies. This meant that the firewalls that had always existed between such entities as the Justice and Treasury Departments were gone.
He said it was entirely possible that those of them that were speaking their minds in that room as American citizens could find themselves subject to a random audit by the IRS or countless other forms of retaliation from government agencies under the umbrella of the Homeland Security Department. He said if this sounded extreme, he said bear in mind two things: First, the long-standing barriers that were in the Constitution were no longer in place. He said they were simply dependent upon the goodwill of the public agents to enforce them or not. Second, for all of the assurance they received the Homeland Security and Patriot Acts had not been abused or even used, they had no way of knowing if that was true because anyone publicizing such activity could be thrown in prison.
He said they were asked to believe that not only the few Cabinet member, politicians, and departmental heads that were behind this act were of sterling character and they could trust them, but they were asked that they should trust the tens of thousands of people under them who might act with their authority that those people were equally honest, competent and completely void of a political agenda. He said he found that impossible to believe.
Paul Fairchild, speaking on behalf of the Lawrence Coalition of Peace and Justice, said his group has been active in Lawrence for over a quarter of a century. He said they engaged in public policy research, education, and advocacy. He said today they were concerned that the freedom to conduct those viable activities was being threatened by the U.S.A. Patriot Act. He said like many other organizations they played an important role in the life of Lawrence. Every community depended on citizen participation for the spread of information about issues affecting lives, without it, democracy was impossible. He said their particular mission was to oppose violence and the conditions that led to violence. He said their core belief was that justice for all was the most important condition for peace.
He said about two years ago the League of Women Voters and the Coalition co-sponsored a forum entitled “Fighting Terrorism and Protecting Civil Liberties.” A standing room only audience heard panelists discuss the history and the affects of this complex legislation. It was a genuine exercise in civic education that pointed up what happened when law were passed during a highly emotional time. He said they recognized that the Federal Government has an important obligation to provide security for the people of this country. At the same time, it must protect civil freedoms from violation from everyone, including the government itself. The act was passed in haste with little deliberation on the part of Congress. It was a tool for fighting terrorism, but made no provision for ensuring that the targets of investigation were terrorists.
He said any citizen who wanted to become involved in voluntary association with others to discuss, question, propose, or oppose public policy must now ask themselves if they were to be the object of surveillance by law enforcement if they took part in public meetings. Also, how would they know if their attendance was being recorded, if the use of the library was being documented, and telephone or email messages tracked? He asked should those people dare expose themselves or their family to possible legal proceedings because what they believed to be innocent patriotic civic activities.
He said people should not have to weigh the risk of government action before joining and asking questions of government sharing information and voicing decent. The broad, intrusive, and secretive provisions of the Patriot Act made it highly likely that it would discourage some people from becoming or remaining involved in public activities.
He said they saw the proposed resolution as a reasonable response to the Patriot Act and urged the City Commission to adopt the resolution.
Mayor Dunfield suggested deferring the executive session that was scheduled for discussion until the next regularly scheduled City Commission meeting. The other Commissioners agreed.
Steve Stemmerman, Lawrence Bill of Rights Defense Committee, responded to Kobach’s comments. He said in Section 213 concerning reasonable cause and suspicion, the standards had been lowered and in the FISA Court, the standards would not be probable cause.
He said concerning Section 215 which stated, “No person shall disclose to any other person, other than those persons necessary to produce the tangible things under this section, that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” He said you were not allowed to disclose that information.
He said they had over 600 petitions showing Lawrence’s support for that resolution.
He said they were being led to believe that this was just misinformation. He noted that 250 cities had passed a resolution against the Patriot Act and New York City was one of the most recent cities that passed a resolution condemning the Patriot Act.
He said it was mentioned that the Attorney General would respond every 6 months to update the progress of the Patriot Act. He said the Attorney General had said publicly that they would only disclose what they wanted to disclose.
He read a list of several pending bills amending the Patriot Act.
Dinah Lovitch, one of the representatives of the Lawrence Bill of Rights Defense Committee, discussed Section 3 of the draft resolution. She said that section directs the Police Department to refrain from assisting federal officers who were engaging in activities that were in probable violation of the First, Fourth, and Sixth, Amendments of the Constitution. Many people in Lawrence thought it was illegal for the local police to deny assistance to federal officers and their investigations.
She said the provisions of the resolution in Sections 3 were carefully and narrowly crafted to confine limitations on local police activity to areas that would compromise the Bill of Rights. This section focused on the right, guaranteed by the Fourth Amendment and held by each of us to not be subjected to unreasonable and unlawful searches. Similarly, this section addressed our Sixth Amendment rights to be proceeded against by our government only when there had been demonstrated cause to do so and only when this was done with due process. She said equally important Section 3 spoke to the guarantees of free speech and freedom of assembly given to each of us in the First Amendment without which they might have grave concerns about assembly and speaking, most particularly if anyone was of Middle Eastern descent.
She said Section 3 directed the Police Department to refrain from assisting federal authorities and taking individuals into custody if they would be subject to secret detention or detention without access to counsel or likely to be denied habeas corpus, or would be held as a material witness for an indefinite length of time. She said all the Police Department might not know definitively was that individuals to be taken into custody might be subject to any of those circumstances and an understanding of the law used to justify the warrant should allow reasonable assumptions about the probable outcome.
She said clause 2 of Section 3 prescribed engaging in surveillance of activities protected by the First Amendment if the surveillance had been directed or ordered by a secret court.
She said clause 3 directed the Lawrence Police to refrain from participating in secret searches of the homes of Lawrence residents. Again, those directives in no way prohibit members of our local police force from assisting federal officers and activities that adhere to the rights outlined in the First, Fourth, and Fifth Amendments. Instead, they directed the Lawrence Police to refrain from engaging in activities that would compound the violations of the Bill of Rights inherent in the problematic provisions of the U.S. Patriot Act and the Homeland Security Act.
She said clause 4 asked the local police to refrain from supporting activities encouraged by the Federal Government that encouraging neighbors to spy against neighbors and business people to spy against their clients.
She said clauses 5 through 9 directed Police to refrain from activities locally that were in violation of the First, Fourth, and Fifth Amendments.
She said in clause 7 the language was not clear, but it was meant to deal specifically with political and religious groups.
She said although their concerns about local activities were separate from their concerns about provisions of the Patriot and Homeland Security Acts, they dealt with the same constitutional protections, that they as citizens of Lawrence were entitled to.
Greg Seibel, Lawrence, said there had been a lot to strong assumptions on both sides and they seemed to conflict with each other. Some of the strongest assumptions were from Kobach and how there was nothing dangerous in that act and that there were all sorts of protections of First Amendment rights and nothing in that act was going to violate any First Amendment rights.
He said it was hard for him to see what a person chose to read at the public library was anything other than using your First Amendment rights and it was hard for him to see Federal Government demanding those types of records to be anything but a restriction on those rights.
Another assumption that Kobach stated was that after that terrorist attack the President told Ashcroft not to let it happen again and all the lawyers in the Justice Department went to work and in 6 weeks put together their best effort at stopping terrorism and giving law enforcement what it needed. The truth was a lot of that act was around before that attack. He said Kobach claims that the people who were opposing the Patriot Act were distorting the truth. He said Kobach was also engaging in some distortion of his own if he claimed that this entire act was put together as a response to that and none of that existed beforehand.
The request for library records was a sign of what was terribly wrong with that act. He said he understood secrecy and searches as well as wanting to delay notification that a search had happened, but when you go to the extreme of saying that a librarian could not even say whether any request had been made for records and that was beyond protecting an investigation.
He said Flory made a comment earlier in reference to the Bill of Rights Defense Committee’s advertisements and that there was not a right to alarm the citizens with false and misleading information. He said he would like to see Flory apply that same standard to our government.
He said something seemed contradictory when the representatives of the government kept telling the public that they were not using portions of the act, but that they were going to make it illegal for anyone to tell if they used portions of the act and they also state that it was vital and necessary to have that act to stop the terrorists.
He urged the City Commission to take a stand against the Patriot Act and the broad latitude that allowed the government in view of the abuses the government had made in the past when granted that latitude.
Moved by Hack, seconded by Highberger, to extend the meeting until 11:30. Motion carried unanimously.
Brett Dillingham noted to Vice Mayor Rundle that it was Section 326 of the Patriot Act that required financial planners and other people to collect certain personal information about each of their customers and also to compare that information to a database to make sure they were not forbidden to be one of their clients.
He said in looking at Section 215 which was part of the Patriot Act that dealt with collecting records such as library checkout records, he said there was nothing in that section that indicated that there was a standard of probable cause. It said that the government simply needed to assert that this part of an investigation connected with terrorism. He said they were also hearing about how this section had never been used. He said he was not convinced that they had the information necessary to reach that conclusion. In the Patriot Act it did specify that this information was not provided to all of Congress, in fact, it was two subcommittees, one on intelligence and another was a judiciary committee. It also did not say that there was a need to tell them everything. He said the congressional oversight that was talked about did not really exist. He said it was very plain in the act that “no person can tell you if this information was sought.” It also said that the Justice Department was not to indicate why they were seeking the information in their request. He concluded that why wait until that section was used. He said if they could agree that that would be wrong, he asked then why did they need to wait until there was a major violation of civil rights to take action.
He said he was not involved in the drafting of that resolution and became interested in that issue by seeing it in the newspaper. The resolution itself might be flawed, but he did not think that was a reason for the City not to act. He said maybe this wasn’t exactly the right resolution, but he thought it was appropriate and necessary for the City of Lawrence to take a stand.
He said no one wanted a terrorist or a terrorist act. He said the problem was, what about people who were alleged to be terrorists. He said the Patriot Act wasn’t really about protecting us from terrorism, but expanding the powers of law enforcement to go after other types of criminals under the guise of saying they were terrorists. He felt that the Patriot Act reached too far and it wouldn’t be reaching too far for the City of Lawrence to take a stand.
Rich Wenzel, Lawrence, addressed Section 218. He said according to the National League of Cities, constituting cities all over the Country that had researched this, it amended the probable cause requirement before conducting secret searches or surveillance to obtain evidence of a crime.
The Patriot Act permitted the FBI to conduct so-called sneak and peek searches without notifying them weeks or even months later. In criminal cased including cases that had nothing to do with terrorism, while courts had previously held that this notification was permissible in limited circumstances, the Patriot Act provided statutory authority with entirely inadequate standards of probable cause and a lowering of those probable cause requirements.
The Patriot Act allowed those extraordinary searches to be used in all criminal cases, not just terrorism cases. The standard was so loose that it could arguably be used in almost every criminal case and that was what deeply concerned them. The presumption had long been that law enforcement officers had to knock and announce themselves, when executing a search warrant. He said an exception to that rule should be made only in limited circumstances with very strict guidelines which the Patriot Act did not contain.
The National League of Cities that in Sections 411 and 412 of the Patriot Act gave the Secretary of the State sweeping powers to designated domestic groups as terrorist organizations with very little definition of what that constituted.
He said Kobach’s assertion that certain sections of those acts had never been used was of no reassurance after the guardian gates of our guaranteed constitutional protections from abuse of government had been breached and flung open. Furthermore, how was the public possibly going to know that those sections had not been used when librarians and others were prohibited by law from divulging such Federal Government intrusions into our most basic privacies?
Hudson Luce, Lawrence, said he helped draft the proposed resolution. He said Kobach cited a case in connection with sneak and peek searches. He said back when he was taking criminal procedure classes, that case that Kobach was referring to had to do with wire taps on phone booths that were used by bookies to make gambling bets.
The act itself was a series of 384 pages of highly technical amendments. This was not like regular act of Congress where there was clear legislation. He said it was a 384 page series of technical amendments to the United States Code changing definitions. It was horrendously difficult to track and figure out what was going on, but he took that time.
He said Kobach and Flory both made their remarks from summaries. They both used summaries of the act and did not go to the act itself. If they had gone to the act itself, they would have found that it was closer to what his concerns and the concerns of other people were. There were numerous groups that had made criticisms of the Patriot Act and analysis of the Patriot Act among those groups were the American Civil Liberties Union, Rutherford Institute, Center for Democracy and Technology, the Electronic Frontiers Foundation, Center for Public Interest, the American Library Association and many others. All of those groups had found serious difficulty and deficiencies of violations of our basic and fundamental constitutional rights. Those analyses were available at the Electronic Privacy Information Center Website www.epic.org. He said if you look at Patriot Act on that website you could find a whole laundry list of analysis both pro and con. He said it listed all the analysis including those from the Congressional Research Service of this bill. He said it talked about the Department of Justice website.
He said there was no debate on the bill or conference reports. Usually bills would go through extensive debate, committee hearings, and conference committee hearings. All of those produced a record of what congressmen thought about those bills. He said none of that happed on this particular bill. Numerous Congressmen said that they never read the bill.
He said John Ashcroft stood before Congress and said if they did not pass that bill, then Congress would be helping the terrorists.
Both Kobach and Flory had said the key provisions of the bill had not been used yet, there had been no complaints yet, and there was no cause for concern yet, but that did not mean in the future there won’t be cause for concern. He said you needed to be careful about the powers given to government because those powers could be used in ways that might not be predicted.
He said there had been some controversy about this resolution and it would require or request officials and employees of the City of Lawrence to disobey Federal Law. He said the resolution stated that, “Nothing in this resolution shall be construed as to require any City employee to violate any Federal law.”
Mayor Dunfield said there was sufficient cause for concern and sufficient reason for the City to be involved in this issue because it did directly affect aspects of City government. He said he shared very many of the concerns about the Patriot Act. He said what he read was not reassuring. He was not willing to sit in his chair and take a position on the constitutionality of the Patriot Act.
He said he also had a lot of concerns about the resolution that had been presented to the Commission, specifically what it said about the City’s police force.
He suggested that a possible route that the City Commission could take was to prepare a resolution that endorsed the National League of Cities resolution which he also studied. He said that resolution both addressed the concerns about the Patriot Act and addressed his concerns about the local resolution.
Commissioner Highberger said there were a number of sections in the Patriot Act that he found severely troubling. He said he thought it was appropriate for the City to act on this issue. He said it was obviously a concern to a great number of citizens in this town.
He also had a few concerns about the way the resolution was drafted particularly Section 3 and Section 7. He said he did not think this was the best way for the City Commission to interact with the City’s Police Department. He said the Police worked for the City and it was the Commission’s job to tell them what sort of conduct they expected and to set high standards for protecting civil liberties. He said he was concerned with some of the statements in the “Whereas” clauses. He said there was a lot of talk about abuse of governmental authority. He said this was a governmental authority here and if they took action, they needed to be able to back it up.
Vice Mayor Rundle said one of the speakers said that the Commission should leave this issue to Congress. He said that was what they were doing, but the Commission wanted to tell the representative in Congress what they felt and what they thought should be done. Congress was not independent of the citizens.
He said everyone was taken by surprise by 9-11 and the Patriot Act would make sense if in the short time before its passage, the intelligence and other research revealed the shortcomings that had made us vulnerable. He said the research that was behind the act led us to conclude that this was the answer to those vulnerabilities.
He said there were many countries in the world today that shared a democratic form of government and many countries in the world that cherish democracy as much as people in the United States. He said we were not the only country under the threat of terrorism and if the Patriot Act was a perfect response to this threat, then the countries of Canada, France, and Germany would have passed similar legislation.
He said he was very sensitive to the City’s law enforcement personnel. He said they were asked and expected to place themselves in danger and make split second decisions that hold life in the balance, but we also place the expectation on them that they do all of that within the bounds of the Constitution and that was the underpinning of everything else that he had noted. He said they wanted this to follow the first principles of our democracy and protect our basic democratic rights.
He said if it was the National League of Cities version, he did not know if the Lawrence committee was familiar with that version of their resolution. He said they would probably get into a long discussion about what that resolution was leaving out and what was seen as vital to the interest of the community.
He said he wanted this City to voice their concerns and let the City’s representatives in Washington know that they had more work to do to clean up the problems of the Patriot Act.
Commissioner Schauner said he had never been more proud of living in Lawrence than now. He said the community’s expression of concern about fundamental constitutional rights of privacy would be difficult to replicate in a lot of places.
He said the horrific acts of 9-11 brought to the surface a number of issues and when the Patriot Act was passed some 45 days after 9-11, the interesting thing was that it began to amend and codify a number of acts that Congress had passed and had been enforced for a number of years about which the general public knew absolutely nothing. He said they knew nothing about those acts then and very little about those acts now.
He said when going to the website that was previously cited, the Patriot Act introduced changes in the following statutes and he would venture to say there was not one-half of one percent of the listening or reading public that ever heard of most of those statutes which were: the Wire Tap Statute, Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Foreign Intelligence Surveillance Act, the Family Educational Rights and Privacy Act, the Pen Register and Trap and Trace Statute, the Money Laundering Act, the Immigration and Naturalization Act, the Money Laundering Control Act, the Bank Secrecy Act, the Right of Financial Privacy Act, and the Fair Credit Reporting Act. He said the truth of the matter was that the Patriot Act, in his mind, was really just the tip of an iceberg that they did not have time to discuss at this time, but which needed to be addressed in public forums in about which, he thought, all citizens should be taking some interest in stating a position.
He said he had an increasing level of concern that they were repeating history. If looking back at everything from the interment of the Japanese, the Red Scare of the 50’s, and the civil rights investigations of Martin Luther King and other leaders of that movement, they were essentially repeating much of what was done in the past 50 years. He did not know that his particular resolution was the one that there were three votes for. He said he believed that this Commission was unanimous in its belief that a strong statement of opposition to the fundamental abuses that were possible with the Patriot Act was something that they should use.
The comments that were made were indicative of the chilling affect that this legislation has had. He said the fact was that if people believed they were under threat, they were under threat. If they believed their privacy was being abridged then their privacy was being abridged and that perception was as important as the legality of it. He suggested moving forward with a resolution, act on the resolution quickly, and he hoped to do that unanimously.
Moved by Highberger, seconded by Rundle, to extend the meeting until 11: 45. Motion carried unanimously.
Commissioner Hack said she echoed what had been said in terms of the genesis of the Patriot Act because it was a reaction to a horrible event.
She said she disagreed with the position that if we as a community, state, and a nation questioned the Patriot Act then our patriotism has been called into question. She said if we did not question the Patriot Act then their concern about civil liberties has been called into question. He said this should not be a test of how patriotic a person was or how concerned a person was about civil liberties because it was certainly possible to be both.
She said she had two major concerns about the resolution as it stood. The first concern was the issue of whether or not this was a function of City government, but she appreciated the Mayor’s comments about this affecting City institutions and that had drew her thinking closer to the fact that this was an area that the Commission should at least express their opinion about.
She said the only thing she did not support in a resolution was the use of word “refrain” when looking at the City’s law enforcement agencies and asking them to essentially refrain from obeying Federal Law. The resolution used the word “refrain” nine separate times. She said they might not be able to agree on the definition of the word “refrain”, but when she used that word it meant to stop doing that. She could not support a resolution that asked the City’s law enforcement personnel to act in that way.
She said she was going to go represent the City in Washington D.C. at the League of Cities meeting. She said while there, she could ask that they look at the Patriot Act. She said the League of Cities resolution was a good starting point, but obviously they needed to spend more time with that resolution. She could not support the proposed resolution at this time.
Vice Mayor Rundle noted that the National League of Cities resolution was on the City’s website.
Jacob Gage, Lawrence High School Representative, said while listening to people talk he heard people say that there had been no complaints and others that say that there had been no complaints yet. He said he did not see any reason to condemn the Patriot Act. He said until it had been shown that it was unconstitutional by its abuse, then he did not think they should try to cut if off before it has had it chance to prove itself.
Mayor Dunfield said there was clear unanimity that the City did have a role here and should speak on this issue. He said it sounded as if they were not ready this evening to finalize what that voice was going to say.
Commissioner Schauner asked if there would be support on the City Commission for the resolution as proposed in removing the “refrain” language from the Police Officers.
Vice Mayor Rundle said those “refrains” were usually tied to refraining from supporting detention without right to counsel. He said refrain from surveillance that was based on activities that were guaranteed to us under our First Amendment rights. Refrain from search warrants without notice, refrain from surveillance of those thing that were guaranteed to us under our First Amendment rights without probable cause to believe that the participant had been in criminal activity. Those seemed completely contrary to our basic rights. He said if he voted right now, he would not want to remove all those refrains.
Mayor Dunfield disagreed. He said one option that he had considered earlier was simply to propose removing Section 3 all together. He said there was enough language scattered throughout the resolution that he was still not comfortable that that would satisfy his concerns about it. Part of the reason for suggesting the League of Cities version was his confidence that the league had rather thoroughly reviewed their documents prior to adopting them. He said if they were going to create their own resolution then they needed to start by directing the City’s legal staff to put together a resolution based on provisions that were in the resolution that was presented this evening or the League of Cities. He said if they wanted a Lawrence resolution on the U.S.A. Patriot act then their first step was to direct staff to look at the issues and come back to the Commission with a report and some recommendations.
Commissioner Schauner said if staff was going to draft a resolution, he suggested that staff work with someone from the committee that drafted the resolution that was before the City Commission to see if they could come to some agreed resolution.
Commissioner Highberger suggested that Commissioner Schauner sit in on that process.
Commissioner Hack asked if they were going to include League of Cities.
Commissioner Schauner said that would be one of the documents that they would look at.
Mayor Dunfield directed City staff to work with members of the various committees and come back to the Commission with a report and some recommendations. (19)
PUBLIC COMMENT:
Mayor Dunfield called for public comment.
After receiving no public comment, the Commission recessed at 11:45 until p.m. 9:00 a.m. tomorrow morning. Motion carried unanimously.
APPROVED:
_____________________________
David M Dunfield, Mayor
ATTEST:
___________________________________
Frank S. Reeb, City Clerk
1. MACPP Cooperative bid – 4x 4 pickup from Roberts Auto Plaza for $16,059 for Solid Waste Division.
2. MACPP Cooperative bid – 4x3 truck from Olathe Ford for $19,983 for the Public Works Dept.
3. MACPP Cooperative Bid – dump truck from KCR International for $58,996 for the Utilities Dept.
4. Bid – Tool body Truck from Laird Noller Ford for $30,020 for the Public Works Dept.
5. Engineering Service Agreement – Folks Rd, 6th to Harvard with Peridian Group for $67,305.
6. Engineering Design Fee – 6th Street Waterline Project to Bucher Willis & Ratliff for $32,343.86.
7. Bid Date – Comprehensive rehab project, 407 Elm, March 9, 2004.
8. Ordinance No. 7740 – 1st reading, rezone (Z-11-39-03) 5,000 sq. ft., RM-2 to C-5, 1703/1711 W 6th.
9. Rezone – (Z-12-51-03), 8.83 acres, PID-1 & M-1 to PRD-2, N of W 15th.
10. Rezone – (Z-11-40-30), 41 acres, A to RS-1, E of George Williams Way at Harvard.
11. Special Assessment Agreement – Folks Road, Roger & Deanna Mayhugh.
12. Subordination Agreement – 2704 Ann Ct., Jeremy & Kelly Brakenhoff.
13. Drinking Establishment License Approvals – Replay Lounge.
14. Prelim Dev Plan – (PDP-12-13-03) Oread W Office, 16.893 acres, N of W 15th & E of Research Pk Dr.
15. City Manager’s Report – Lawrence Regional Technology Center
16. Resolution No. 6526 – 933 Rhode Island.
17. Ordinance No.7742 – discussion on Limitation on Successive Petitions.
18. UPR – (UPR-12-07-03) Cell Tower, Clinton Water Treatment Plant, 2300 Wakarusa Dr.
19. U.S.A. Patriot Act discussion.