Mrs. Sherburne: Tear Down Those Chains

-Letter to the Editor-

By: Al Bernstein, Olean, New York

Earlier this week the Common Council voted to prohibit camping or sleeping in public places. There are arguments for and against it and I understand both sides. Dealing with homelessness is a difficult problem. Whether we are for or against the new law, at least we can appreciate that the City Council passed a resolution through the democratic process.

Conversely, last week Mayor Sherburne had the Farmer’s Market Pavillion and the Rotary Gazebo chained off in Lincoln Park with signs that say “Restricted Area: Authorized Personnel Only.” She had no authority to do so. There is no ordinance or local law permitting her to chain off these public spaces. (Interestingly, the City Council did pass a resolution that the rest rooms in Lincoln Park were to remain unlocked from dusk until dawn. The Mayor disregards the Council’s resolution and locks them anyway.)

On Wednesday, I went to the city building to determine how someone could become “authorized personnel” to enter the pavilion and gazebo. First, I went to the City Clerk’s office. The Clerk had no information on how to become authorized personnel. Lens sent me to the Auditor. The Auditor also had no information and directed me to the Mayor’s Secretary, Jennifer Fairbanks-Black.

Ms. Fairbanks-Black did give me an answer. There was no application or permit process required to become “authorized personnel.” I did not have to speak to the Mayor, pass any background check, pay any fee, or speak to the police. I merely had to ask the Mayor’s Secretary nicely and give her my name and phone number to become “authorized personnel” for a day. She said I could take down the signs and chains as long as I put them back up when I left.

When I asked, “can I come tomorrow?” She responded, “what time?” I was not sure what time and without that crucial bit of information, she couldn’t make that decision on the spot. I dropped the issue and enjoyed a nice lunch break in the gazebo.

Wednesday night, I checked the City Charter and local ordinances and realized that there is no law or ordinance preventing me from going to the gazebo. I decided as a member of the public, and as a taxpayer who paid for that park, that I could go there without asking the Secretary for a daily permission slip.

On Thursday, I went to the gazebo around lunch, I was minding my own business when the police arrived. Two officers questioned me and threatened me with Criminal Trespass. When I told them that the signs did not say “no trespassing” they actually read the sign and told me I was not ‘authorized personnel.’ When I asked them which law they were relying upon to threaten me, they said look at the sign.

The Mayor cannot make up signs and call them laws.

Halfway through our conversation one of the officers on the scene stopped using his police radio mid-conversation and took a phone call. According to the officer, he was speaking directly to the Mayor. She told him that if I did not leave immediately to charge me with Criminal Trespass.

Luckily for everyone involved, I was hungry and did not want to get arrested before lunch, so I left without further incident. In retrospect, it is a good thing I was hungry. I would hate to sue the City over violating my civil rights, but if the Police illegally arrest me, I will defend myself to the fullest extent of the law.

If the police officer was really on the phone with the Mayor directly, that is another problem. There is a chain of command. There are experienced police officers that should be providing direction to patrol officers so that they don’t get bad advice from a first year Mayor who is devoid of a City Attorney.

We may agree or disagree with the specific laws our elected officials make, but we can all agree that our elected officials are required to follow the law, the Constitution and, in this case, the City Charter. Politicians cannot just make things up as they go.

This situation is not fair to city residents and most of all it is not fair to the police. The officers were put in a terrible spot. The police have no idea that the Mayor is completely off the reservation and has no authority to chain off the gazebo and the pavilion. I hope she gets some sound legal advice before Tuesday. I am planning to take an early lunch on Tuesday.

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Lastly, I oppose any law that requires chaining off a public park. Since it was chained off, just this week there was an overdose in the park. I believe there was an assault as well. The signs did not stop crime. The chains make no difference, other than stopping citizens and taxpayers from enjoying public spaces that our tax dollars bought.

Though I would disagree with any law permitting the Mayor to chain off these public spaces, if the law is properly passed, I will obey it.

-Al Bernstein,

Olean, New York

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