Sunday, July 27, 2008

Stop the Selective Persecution

This particular article will be a work in progress, because, as usual, I don't have time to write. Butterflies and work calling today & tomorrow. :-) There is a need, however, to at least put up some information from Beverly Calder's side of the story with regard to Friday's article ("Sidewalk dots spark controversy" on their website ) in the Herald. This morning's post includes more of the ordinance in question, as well as some e-mails that cast serious doubt on the story coming out of City Hall and dutifully printed in the Herald article. They are placed below so that the public can reach an informed conclusion about this sad episode. I will post more as information becomes available, and as time permits.

It seems that City Manager Brocato and Mayor Petry can’t be content with frittering away the budget surplus, by, among other things, recruiting expensive “rock stars” to city government, giving extravagant and unwarranted raises to close city staff, and by improving the airport playground for people who are wealthy like them. Now, in my humble opinion, they seem to want to amuse themselves by bullying Councilor Calder out of public service with a campaign of spurious charges, mean-spirited public statements and threats of censure.

Last Friday’s article in the Herald didn’t print the title of the ordinance or put the bogus charges in the context of the entire ordinance, so it would be easy for the public to get an inaccurate picture of what is occurring, especially in light of the inane quotes from Brocato and Petry. Ordinance NO. 2893 is titled: “AN ORDINANCE PROVIDING FOR A COMPREHENSIVE REVISION OF CITY REGULATIONS REGARDING TRAFFIC REGULATIONS; REPEALING ORDINANCE 2404 AND DECLARING AN EMERGENCY.” A quick reading reveals that it is about regulating pedestrian and vehicle traffic, as well as parking. It has nothing to do with controlling what someone poster paints on the sidewalk in front of their business during one of our city's summer festivities.

In exercising their animosity towards Calder, the Mayor & City Manager are making a really lame attempt to charge her with violating an ordinance that has nothing to do with the "crime" she was supposed to have committed. This isn't the first time the City has done this. According to the article:

Brocato wrote in an e-mail to councilors that the painting of the colored dots is not the first time the sidewalk in front of Calder's store has been an issue. She also was cited for violating Ordinance 3030, stemming from tables and chairs she placed in front of her store.

In a 2007 Baker Justice Court brief she filed on her own behalf in that case, Calder relied on the language of the ordinance itself, which says that people can't store personal property on the sidewalk unless it's "equipment placed on the sidewalk in the normal course of business by an authorized franchisee of the City, so long as such property does not materially affect the right of pedestrian travel."

The city, Brocato wrote in his e-mail, withdrew from that case.

Well, apparently that last part isn't true, at least according to Calder. It would seem to be a serious distortion of the truth on Brocato's part, because Cader says she actually WON the case! Ay Yi Yi....

Additionally, there is a selective prosecution aspect to this as not only is the ordinance not applicable to Calder's "dots,' but it is applicable to a sign in front of Councilor Dorrah's business on Campbell Street (Yorks).

There is more to be said, but for now, it will have to be enough to post some pertinent e-mails, most of the ordinance (for context), and pictures of the sign in that was in front of Yorks on Friday.
E-mail 1.
From: Steve Brocato []
Sent: Friday, July 18, 2008 10:58 AM
To: 'Andrew Bryan'; 'Bev Calder'; 'Dennis Dorrah'; 'Gail Duman'; 'Jeff Petry'; 'Sam Bass'; 'Steve Brocato'; Terry Schumacher
Subject: Sidewalk painting


It is illegal to paint or hinder sidewalks especially in a public right of way. In the state code, it is considered public mischief. In the city ordinance, it is illegal to deface a sidewalk (ordinance 2893, section 6). I have conferred with the city attorney on the application of the law.

Councilor Calder in my tenure as city manager, has violated the law regarding sidewalks on three occasions:

In the first incidence when a citation was issued regarding the sandwich boards, after spending city dollars with the city attorney and police time on the legal issue following a challenge in court by C. Calder, we withdrew and left the case unchallenged. The irony is that the councilor both at HBC and as a councilor supported the city ordinance regarding sandwich boards then challenged its legality in court.

The second was for the Elkhorn Bike rally, when after receiving complaints about ”painting” on the sidewalk in front of Bella, our Director of Public Works was rebuffed by the Councilor Calder. We opted to ignore the situation hoping it would go away and thus avoided confrontation.

In the current incident, I would like to avoid the obvious dilemma of creating a political platform at this time nor do I want a debate with any councilor. However, we are now receiving complaints (including complaints from retailers) about pricing advertising being “painted” on the sidewalks in front of Bella and find the issue unavoidable. The complaints include the accusation that a councilor is being unfairly exempted from the laws “that everyone else has to follow”. We have tried enforcement in the first incident and tried to ignore the second. Neither approach is working. I ask for direction from a collective Council on how to proceed: enforce the law by issuing a citation and turning this issue over to the City Attorney; or suggest to Council that we change the law to accommodate painting on the sidewalks.

Please let me know your collective opinion.
Steve Brocato
City Manager
Baker City, Oregon
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E-mail 2.
From: Jeff Petry
To: 'Steve Brocato' ; 'Andrew Bryan' ; 'Bev Calder' ; 'Dennis Dorrah' ; 'Gail Duman' ; 'Jeff Petry' ; 'Sam Bass' ; 'Terry Schumacher'
Cc: ; 'Deby'
Sent: Friday, July 18, 2008 11:59 AM
Subject: RE: Sidewalk painting


The Chief of Police has been beyond tolerant in this situation.
The position of Councilor does not give a you carte blanche to break our laws (our ordinances). This type of attitude and conduct should not be tolerated. It's ridiculous and sad that this would even be an issue. This is childish and arrogant behavior. A Councilor is SUPPOSED to be a leader in abidng by the law while striving to a beacon for our fellow citizens to follow. This conduct is shameful.
It is obvious to me that a citation should be issued.
If this conduct continues, I will ask Council to set this matter as an agenda item for discussion.

Jeff Petry

City of Baker City
E-mail 3.
From: Gail Duman []
Sent: Friday, July 18, 2008 9:42 PM
To: Jeff Petry; 'Steve Brocato'; 'Andrew Bryan'; 'Bev Calder'; 'Dennis Dorrah'; 'Gail Duman'; 'Jeff Petry'; 'Sam Bass'; 'Terry Schumacher'
Cc:; 'Deby'
Subject: Re: Sidewalk painting

Check Ordinance 2893, Section 6: Private Marking Unlawful. It shall be unlawful for any person to letter, mark, or paint in any manner any letters, marks, or
signs on any sidewalk, curb, street or alley, or to post on a parking strip anything designed or intended to prohibit or restrict parking in front of any sidewalk,
dwelling house, business house, or in any alley, except in compliance with the provisions of this ordinance.

Reads to me like you can't do anything to prohibit parking, not that painting dots on a sidewalk isin't allowed. What do you think?
E-mail 4.
From: Jeff Petry
To: 'Gail Duman' ; 'Steve Brocato' ; 'Andrew Bryan' ; 'Bev Calder' ; 'Sam Bass' ; 'Terry Schumacher' ; Dennis Dorrah
Cc: ; 'Deby'
Sent: Saturday, July 19, 2008 9:22 AM
Subject: RE: Sidewalk painting

Councilor Duman,
In my opinion, the reading of this ordinance is plain, straightforward and obvious. I have highlighted the section along with the conjunction OR which delineates the subject matter. In any case, the City Attorney has already reviewed this matter.
You seem to defend Councilor Calder no matter the question, she has been given warnings, repeatedly shown that this is a violation with no effect. Nobody, for any reason, especially a Councilor, is allowed to deface/graffiti/advertise on our public sidewalks.
Our Police, City Attorney and Staff are just enforcing our ordinances. I would hope you understand and support this.

Jeff Petry

City of Baker City

Section 6: Private Marking Unlawful.
It shall be unlawful for any person to letter, mark, or paint in any manner any letters, marks,
or signs on any sidewalk, curb, street or alley, OR to post on a parking strip anything
designed or intended to prohibit or restrict parking in front of any sidewalk, dwelling house,
business house, or in any alley, except in compliance with the provisions of this ordinance.
E-mail 5.
From: Beverly Calder/BELLA
To: Jeff Petry ; 'Gail Duman' ; 'Steve Brocato' ; 'Andrew Bryan' ; 'Sam Bass' ; 'Terry Schumacher' ; Dennis Dorrah
Cc: ; 'Deby'
Sent: Tuesday, July 22, 2008 12:10 PM
Subject: Sidewalk painting

Mayor Petry;

I apologize for not responding earlier, I was out of state for a wedding and
just returned this morning.

As far as multiple 'warnings' - there were none. There was a threat of a citation
to one of my employees in the midst of Jubilee on Friday as well as the recent storm
of letters which I have only now had the opportunity to read.

The following e-mail (in blue) was the only contact I recieved for our 'dots'
which were done to create smiles and overall was very successful. It referred
to no ordinances and appears to say that chalk is allowable. I responded
to Michele that the paint used was a temporary poster paint.
I heard nothing more.

There was no additional paint for the Jubilee Sidewalk Sale - only a bit of
sidewalk chalk. The exact type of chalk that Andrew's daughter and her
friends draw on the sidewalk in front of Mad Matilda's with.

As regards Ordinance 2896, Section 6 - I don't believe we can interpret
half of an ordinance to mean somthing it was clearly never intended to.
This ordinance very specifically deals with anything done to a sidewalk that is
"designed or intended to prohibit or restrict parking".
Obviously, that was not the intent or the result.
------- Original Message -----
> From: "Michelle Owen"
> To: "'Beverly Calder'"
> Sent: Monday, June 23, 2008 11:19 AM
> Subject: Sidewalk
>> It was brought to my attention that there is a colorful addition to
>> the public right of way in front of your business. Cute. I trust it's
>> washable-like sidewalk chalk right?
>> Michelle Owen
>> Public Works Director
>> City of Baker City

So...this last one from Michelle Owen doesn't quite show the serious concern that the city later expressed, but suddenly, out of the blue, the police show up on Jubilee and threaten an employee with citation. This same employee was later issued a citation by the PD for parking in wrong direction while unloading a piece of furniture. Yes, sadly, the city was issuing parking tickets for people who parked in the wrong direction during Miner's Jubilee, and are apparently continuing to do so. (Am I feeling a chill wind in Baker City, or is it just my imagination?)

Here is most of the ordinance. You can pretty much skip to section 6 at the end (in bold print) after you see it is about traffic and parking regulation) .

6-1 Baker City Ordinances
Page 1 Ord. No. 2893

Section 1: Definitions:
The following words or phrases, except where the context clearly indicates a different
meaning, shall mean:
a) Alley: A narrow street through the middle of the block;
b) Bicycle: Every device propelled by human power upon which any person
may ride having two tandem wheels, either of which is over 14" in
c) Bus Stand: A fixed area in the roadway adjacent to the curb to be occupied
exclusively by busses for layover in operating schedules or waiting for passengers.
d) Cycle: Any mechanical device, other than a farm tractor, designed for
the transportation of persons on the ground on wheels that: a) has a
seat or saddle for the use of a rider; b) is designed to travel with not more
than three wheels in contact with the ground.
e) Highway: Every public way, thoroughfare and place, including bridges,
viaducts, and other structures used or intended for the use of the
general public vehicles. Includes “streets” and “roads”.
f) Holidays: Where used in this ordinance or on signs erected in accordance with
this ordinance, Sundays, New Years Day, Memorial Day,
Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day,
and Christmas Day.
g) Loading Zone: A space adjacent to a curb reserved for the exclusive use of
vehicles during the loading/unloading of passengers or materials and
freight. A loading zone shall not be less than 20 feet nor more than 60
feet long, and shall be designated by appropriate limit lines with the
words “Loading Zone” displayed within the limit lines.
6-1 Baker City Ordinances
Page 2 Ord. No. 2893
h) Park/Parkings: Means the standing of a vehicle, whether occupied or not,
otherwise than temporarily for the purpose of and while actually
engaged in loading/unloading property or passengers.
i) Parkway: That portion of a street not used as a roadway or a sidewalk.
j) Pedestrian: Any person afoot.
k) Person: Every natural person, firm, partnership, association or
l) Roller Skater: Any person propelling oneself by human power or gravity on wheeled
devices that are worn on the person’s feet. Such devices specifically
include, but are not limited to, roller skates, in-line skates, and rollerskis.
m) Stand/Standing: Means the halting of a vehicle, whether occupied or not,
otherwise than temporarily for the purpose of and while actually
engaged in receiving or discharging passengers.
n) Stop/Stopping: Means any halting, even momentarily, of a vehicle whether
occupied or not, except where necessary to avoid conflict with other
traffic or compliance with the directions of a police officer or traffic
control sign or signal.
o) Taxicab Stand: A fixed area in the roadway, adjacent to the curb, set aside for
taxicabs to stand and/or wait for passengers.
p) Traffic Lane: That portion of a roadway used for the movement of a single lane
of vehicles.
q) Vehicle: Every device in, upon or by which any person or property is or
may be transported or drawn upon a public highway, except
devices moved exclusively by human power or used exclusively
upon stationary rails or tracks.
r) Vendor: Any person engaged in the selling or offering for sale, of food,
beverages, or merchandise on the public streets from a motor
vehicle. (As amended Ord. No. 3080 adopted 8-24-94)
6-1 Baker City Ordinances
Page 3 Ord. No. 2893
Section 2: Powers of the City Council.
The City Council shall designate by resolution, providing, where required by the motor
vehicle laws of Oregon, approval of the State Transportation Commission has first been
secured, the following:
a) Streets, portions of streets, sides of streets, or city owned or leased land
upon which parking, standing, or stopping shall be prohibited or prohibited during
certain hours and the angle of such parking.
b) Through streets.
c) One-way streets or alleys.
d) Truck routes.
e) Traffic direction on streets.
f) Streets where trucks, machinery, or any other large heavy vehicles
exceeding specified weights shall be prohibited. Such vehicles may, however, be
operated on such streets for the purpose of delivering or picking up materials or
merchandise, but then only by entering such streets at the intersection nearest the
destination of the vehicle, and proceeding no farther than the nearest intersection.
The City Council may also designate the streets, or portions thereof upon which parking
shall be limited to a certain amount of consecutive time.
Section 3. Powers of the City Manager.
The City Manager, for best use of the streets and the public interest, shall exercise the
following powers based on standards established by the State Department of
Transportation, and recognized traffic control standards, provided where required by the
motor vehicle laws of Oregon, approval of the State Department of Transportation has first
been secured.
a) Designate where traffic control signals shall be placed and the time of
operation of such signals.
b) Establish bus stops, bus stands, taxicab stands, and stands for other
passenger common-carrier vehicles.
6-1 Baker City Ordinances
Page 4 Ord. No. 2893
c) Designate on each side of a block, where required, not more than two
loading zones.
d) Designate and cause to be placed or maintained appropriate signs, marks
or lines for:
1) Intersections where drivers of vehicles shall not make right, left, or
U-turns and the times when such prohibitions shall apply;
2) Crosswalks at intersections where deemed necessary for pedestrian
3) Safety zones of such kind and character and at such places as
deemed necessary for pedestrian safety;
4) Play streets, or such hours when certain streets may be used as
such, on which no person shall drive a vehicle upon such street or portion
thereof, except drivers of vehicles having business or whose residences are
within such closed area, and then such driver shall exercise the greatest
care in driving upon such streets. Play street designations shall be effective
for no more than five consecutive days without Council approval.
e) Cause to be placed or marked and maintained:
1) Traffic control signs;
2) Parking spaces;
3) Traffic lanes and other symbols;
4) All other signs and markings necessary to implement traffic and
parking controls enacted by the City Council;
f) Cause to be removed or reduced in height, or trim any hedge, shrubbery or
tree extending over the street.
g) Designate certain streets as priority snow-removal streets upon which
parking may be prohibited between certain hours.
h) Emergency and experimental regulations. Make and enforce temporary,
experimental or emergency regulations, consistent with this ordinance. No such
regulation shall be effective and in force until and unless adequate signs,
signals, or other notices are erected clearly indicating such regulation. No
such regulation shall remain in effect for more than 15 days.
Section 4: Authority of Police and Fire Officers.
6-1 Baker City Ordinances
Page 5 Ord. No. 2893
a) It shall be the duty of the Police Department, through its officers, to enforce the
provisions of this ordinance.
b) In the event of a fire or other emergency or to expedite traffic or to safeguard
pedestrians, officers of the Police Department may direct traffic as conditions may require
notwithstanding the provisions of this ordinance.
c) Members of the Fire Department, when at a scene of a fire, may direct or assist
the police in directing traffic there at or in the immediate vicinity.
Section 5: Duty to Obey Traffic Signs and Signals.
a) No driver of any vehicle shall disobey the instructions of any traffic sign, signal,
marker, or barrier placed in accordance with the motor vehicle laws of Oregon or this
ordinance, including those erected by any authorized public utility and department of this
city or other authorized person, unless it is necessary to avoid conflict with other traffic or
otherwise directed by a police officer.
b) No unauthorized person shall move, remove, or alter the position of, or deface or tamper with any such sign, signal, marker or barrier.

Section 6: Private Marking Unlawful. It shall be unlawful for any person to letter, mark, or paint in any manner any letters, marks, or signs on any sidewalk, curb, street or alley, or to post on a parking strip anything designed or intended to prohibit or restrict parking in front of any sidewalk, dwelling house, business house, or in any alley, except in compliance with the provisions of this ordinance.

The pictures below are of the sign I mentioned in front of Yorks. This is the sort of thing, private regulation of public parking spaces, that Section 6 the ordinance was designed to prohibit.