The homeless encampment legislation impasse, or “city hall was crazy town today”

On a day when everyone in City Hall was supposed to be working on the budget, apparently no one was working on the budget. Instead, all attention was on competing efforts to craft an ordinance specifying when, where and how to clear unsanctioned homeless encampments around the city. When the dust cleared at the end of the day, there were two separately authored versions of the bill, plus a vague promise from the Mayor for his ideas on how to reform the current process.  But equally important — and in the end probably more valuable — some people were finally willing to talk on the record about what has been happening behind the scenes since the bill was first introduced. Get ready for some serious legislative sausage-making.

On September 6th, Council member O’Brien introduced a lightly edited version of a proposed ordinance published in August by the ACLU and Columbia Legal Services (both advocates for the homeless). According to Council member Burgess, immediately the Council members’ offices began to be flooded with responses from the citizens of Seattle, which Council member Bagshaw said in a statement this afternoon have been “most in opposition to the original legislation.” In an interview today Burgess said that his office has received over 2000 emails and calls, and he has heard that other offices have received over 3000 — “easily over 90% opposed.” In a separate interview this afternoon, O’Brien admitted that “there is a lot of concern out there,” but said that when we has had the opportunity to walk people through the intent of the legislation, he often hears two responses: either “oh, that’s not what I had heard, that seems ok,”  or “oh that makes sense, but I still have a lot of concerns, and this bill scares me.” O’Brien also admitted that as far as the public sentiment toward the bill, “we’re on our heels.” But this is where the story of the last month and a half gets interesting.

O’Brien went on to explain that almost immediately after he introduced the bill and the criticism began, representatives from ACLU and CLS began to work on improving it. They brought in advocates for the homeless, as well as business and neighborhood advocates: people who knew each other and according to O’Brien “have been working on those issues over the years. Folks came together to build on that relationship to contribute to that process.” Eventually Council members’ staff and representatives of the Mayor joined the group at the table.

But according to O’Brien, those discussions were fragile. “While we were engaging in these delicate negotiations around how to make this go better, some of the representatives who were around that table have been around the fight for many years, and who recognize the challenges, were very helpful. But some other folks in their organizations are not on the same page as their leadership. That makes this delicate. Some advocates can’t stand up and say ‘this is a good bill’ because their organizations won’t support that. So we’ve been very silent to honor the process going on around the table.”

Their silence, while well intentioned, has hurt them. It left the original bill — now widely recognized as flawed — as the only version available to critique, and the bill’s opponents pounced. The calls and emails continued to flood in to City Hall. Neighborhood blogs ranted about it, as did Seattle Times columnist Danny Westneat and Council member Burgess. It contributed to derailing the task force that Bagshaw and the Mayor co-convened. It even inspired a petition to defeat the bill, that to date has collected over 17,000 signatures.  And the Mayor himself has stated that he will veto the bill if it allows camping in parks.

Unfortunately, the work group was unable to reach complete consensus on a solution, though it has apparently agreed on some points. O’Brien took the results of their efforts and further edited the original bill. Bagshaw, on the other hand, seems to have taken the points of consensus as the basis for writing a new version from scratch — to which she then made additional changes to address the loudest complaints about the original bill.

So here we stand now, with two competing versions of the bill. Bagshaw has scheduled a meeting of her Human Services and Public Health committee for this Friday. Both O’Brien’s and Bagshaw’s proposals will be discussed, though Bagshaw will not call for a vote on either. Interestingly, the Mayor’s staff has also been invited to present its own “Executive Proposal for a Process to Improve Multi-Departmental Administrative Rules (MDAR) for Encampment Removals.” So on Friday the Council may hear as many as three different approaches to dealing with unsanctioned encampments.

Bagshaw’s and O’Brien’s proposals share many aspects in common, likely reflecting the points of consensus in the working group. Among them (but not an exhaustive list):

• They both classify encampment sites into three categories: “unsafe or unsuitable,” “neither unsafe nor unsuitable, but hazardous,” and “neither unsafe, unsuitable, nor hazardous.” O’Brien emphasized to me a distinction he sees as critical: “unsafe” and “unsuitable” are descriptions of locations, and “hazardous” is a description of conditions.
• Both prioritize getting people out of unsafe and unsuitable locations, and deprioritizing locations that are neither unsafe not unsuitable. As for hazards, the priority is to cure them, and residents should be given the opportunity and support to cure a hazard rather than simply removing them.
• Both make it clear that the Seattle Police Department is not restricted in any way from enforcing the law and criminal codes, and that first responders should continue to respond to any and all emergencies.
• Both clarify that schools are not public spaces where encampments are allowed.
• Both have a “sunset clause” that causes the ordinance to expire two years after its effective date, so that whatever lenience is granted to unsanctioned encampments doesn’t become a permanent situation.

At the same time, there are significant differences between the two versions of the ordinance. First O’Brien’s:

The definition of  “unsuitable location” is narrowly defined, in alignment with O’Brien’s goal of trying to ensure that there is enough space left for 3000 homeless people to settle somewhere where they aren’t disturbing anyone but also can be left alone.  His definition says an unsuitable location is:

a public space that has a specific public use that is substantially impeded as a result of an outdoor living space in that location. Improved areas of City parks, including restored natural areas or natural areas actively undergoing restoration,  and public sidewalks in front of houses and dwelling units are per se unsuitable. Sidewalks in commercial areas are prohibited to sitting and lying during certain hours under SMC 3 15.48.040.

• Encampments at unsafe and unsuitable locations may be removed as soon as outreach (offering services) to the residents is complete. There is no longer any timeline associated with that. O’Brien made it clear, though, that this doesn’t mean that if a little league coach discovers an encampment on the field, he can call the city and fifteen minutes later a team will show up, complete the outreach, and remove the encampment. But the situation will be better and faster than it is today. He also emphasized that he is trying to be pragmatic: if an outreach worker discovers that a homeless person camped on a ball field is in the middle of a mental health crisis, attempting to remove that person may make things worse for everyone. He wants to make sure that there is enough flexibility in the system to let people do the right thing given the conditions on the ground.
• Encampments at locations neither unsafe nor unsuitable but with hazardous conditions will have 72 hours to “cure” the hazard, with appropriate assistance and resources from the city (i.e. sanitation). If it’s not cured after 72 hours, the city can post a 48-hour notice of removal and after that time remove the encampment and residents and clean the site.
• O’Brien’s view of the third case, sites that are neither unsafe nor unsuitable, is complicated and nuanced — and pragmatic in its own way. His belief is that if the city doesn’t have an alternative location for the residents to go, then we should leave them where they are rather than push them around the city. And largely today that is the case: there are far more homeless people than alternative sanctioned housing options available. But looking forward to the day where that stops being true and housing is available (which will happen gradually over time), his ordinance says that outreach must take place for up to 30 days, after which point if a person still refuses to move to housing then the city can remove him or her.
• O’Brien’s ordinance still carries many of the ancillary terms of the original ACLU/CLS proposal: an advisory committee, a community response line, a requirement that collaborative agreements with other entities such as WSDOT must be created that require the same rules to apply if SPD is to assist in removals on lands the other entities manage, and a $50 fine (reduced from $250) if the city violates the rules.

Bagshaw’s version diverges in several ways.

• Its definition of “unsuitable location” is much broader, in some ways a laundry list of locations raised by concerned neighbors. Its definition of “parks” seems to include all parkland, even undeveloped, unmaintained areas. It also explicitly lists as unsuitable:  planting strips, rights-of-way, many different kinds of sidewalks, areas protected as First Amendment public forum spaces, and the “corner curb radius” of any public sidewalk. The definition is so broad that it’s unclear what public lands are not “unsuitable.”
• Locations that are not unsuitable nor unsafe but have hazardous conditions are given a 72-hour period for the residents to cure the hazard, but if that fails may be cleared immediately (no 48-hour advance notice as in O’Brien’s version). The other two categories of locations are treated essentially the same as in O’Brien’s proposal, though Bagshaw’s version only requires 72 hours’ notice before clearing a site that is “not unsafe and not unsuitable” instead of O’Brien’s “up to 30 days.”
• Baghsaw’s bill mandates that within 30 days the city must create sanctioned, managed homeless encampments “numerous and large enough to accommodate the reasonably estimated unsheltered population in need of such outdoor living space.” That is a huge effort, that will also require substantial budget for resources, services and staff.
• Her version also strips out many of the ancillary items from the original bill: the advisory committee, the requirement for the Council to pass a similar set of rules for vehicles used as shelter by April 2017, the community response line, the collaborative agreements with other entities, and the $50 fine for violations by the city. As such, it is a more focused, less ambitious piece of legislation aimed at the central issue.

It will be interesting to see how the other seven Council members react to the two competing proposals on Friday. Burgess has reviewed both and (no surprise) prefers Baghsaw’s. “I think it balances the city’s obligations more appropriately,” he said. “I’ve spoken about the need to continue our compassionate response to homeless individuals in the city and at the same time make sure we fulfill our public health and safety obligations. I think we can do both, and Bagshaw’s bill comes much closer to that principle than O’Brien’s does.” He said that he did still have concerns, however, that he was discussing with Bagshaw.

Since Bagshaw has been clear that there will be no vote this Friday, that means that neither version will be approved until her next committee meeting. But since the Council’s budget process is well underway now, no other committee meetings are being held until December. An exception was made for Friday’s meeting but Burgess told me that the Council is very unlikely to repeat that.

So that leaves the bill in limbo until December at the very earliest, and perhaps longer if divisive issues still remain. On the bright side, however, now that drafts are once again seeing sunlight, the Council may find it easier to inform the public on what is really being considered — and what is off the table. It may have just bought itself some time to fix its mistakes of the past five weeks.

There’s one other important take-away from this: a reminder that sometimes silence doesn’t mean that nothing is happening. More often than we care to acknowledge it means just the opposite: something important is happening between well-intentioned people trying to do the right thing. Finding the appropriate balance between giving a delicate process the time and space to play out, and providing transparency to the public, is extremely difficult. Even when in hindsight our elected officials get it wrong, we sometimes need to step back and at least give them credit for trying to get it right.