Council Cuts Right to Sue From Burlington Graffiti Ordinance

Burlington city councilors on Monday gutted a proposed ordinance that would have let people sue anyone who violates a city law.

The proposal would have applied to any city ordinance — such as littering or public urination — but it was designed to target people who have defaced public property with anti-transgender stickers in recent years.

Under the proposal, people could have brought what’s known as a “private right of action” in lieu of the city enforcing its own laws. But the Democratic majority on the council moved to strike that language over free speech concerns, which Seven Days detailed in a story last month. First Amendment attorneys had said the ordinance would likely land the city in court.

“What we need to do is take our time to come up with less risky opportunities for us to address hate and bias in our city without welcoming expensive lawsuits,” Councilor Evan Litwin (D-Ward 7) said.

Progressives, including Mayor Emma Mulvaney-Stanak, decried the decision, saying the remaining language was performative and ineffective.

The ordinance discussion started last year in response to vandals who have defaced trash bins and traffic signs with decals bearing slogans such as “Defend women’s sports” and “No one was ever born in the wrong body.”

The original proposal would have allowed people to sue over any act of graffiti, offensive or not. A “hate crime enhancement” would have awarded a person monetary damages if they could prove the stickers targeted their race, religion or other protected characteristic.

First Amendment attorneys, including those from the American Civil Liberties Union of Vermont, raised concerns that restricting an expressive activity such as stickering would curb free speech. Another lawyer likened the proposal to endorsing “censorship by mob rule.” City attorneys disagreed, saying the First Amendment doesn’t protect hate speech that’s expressed while violating the law — and defacing public property is just that.

Councilors discussed the ordinance last month but delayed a vote to better understand the legal repercussions.

The version introduced on Monday stripped the reference to private rights of action, leaving behind bare-bones language that defines damage to public property as a “public nuisance.” It also retains a provision that says the city will set up an electronic tip line for sharing photos of suspects with police, who could write taggers a ticket.

At the meeting’s public forum before the vote, anti-trans activists Christopher-Aaron Felker and Bill Oetjen — the chair and vice chair, respectively, of the Burlington Republican Party — said the original version of the ordinance would have led to selective enforcement. Oetjen, for his part, has acknowledged that he has put up stickers and has been ticketed for doing so. Felker said he was encouraged to see the council was considering eliminating the private right of action.

Others wanted the council to keep the provision intact. Lee Morrigan, who is transgender, said removing the right to sue “actively emboldens those who seek to harm us.”

Mulvaney-Stanak said the threat of litigation hasn’t stopped officials from passing other bold legislation, including a charter change in Burlington that allows legal noncitizens to vote in local elections. A Republican-backed group sued the city over that law in June.

“This is the kind of moment where allies need to either step forward or not,” the mayor said.

Councilor Joan Shannon (D-South District) argued that sensitive topics such as gender identity should be debated in the public square, not in the court system. Councilor Gene Bergman (P-Ward 2), a former Burlington city attorney, countered that going to court would provide “a straightforward way” for neighbors to resolve disputes.

Councilor Becca Brown McKnight (D-Ward 6) disagreed, saying councilors had originally intended to amend the graffiti ordinance, not every law on the books. She then referenced comments made by an environmental activist earlier in the meeting, who said the private right of action would be a useful way to enforce a city ordinance that limits the use of gas-powered leaf blowers.

“I don’t think it was anyone’s goal to allow people to sue each other over leaf blowers,” McKnight said. “I’m concerned we’re opening a can of worms here.”

After an hour of debate, councilors voted 10-1 to adopt the watered-down ordinance, with Councilor Melo Grant (P-Central District) voting no. They also agreed to ask the Ordinance Committee to work with city attorneys and the ACLU of Vermont on other policies to curb hate speech.

Also on Monday, councilors discussed a $20 million infrastructure bond proposed for the Town Meeting Day ballot in March.

Ashley Parker, Burlington’s capital program director, said the money would help tackle a long list of deferred maintenance. Nineteen city-owned buildings collectively need $13 million in repairs, and the city’s 37 parks need $25 million in upgrades. Of the 74 vehicles that need replacement, about half are for emergency services or snow removal, Parker said.

Officials didn’t identify which items would be tackled with the bond, instead suggesting possible ways it could be spent. Potential projects include replacing vehicles, repairing bridges, and revamping sidewalks and roads.

“Waiting to do this won’t do anything,” Parker said. “Prices will continue to rise, and our really urgent needs will just continue to get more urgent.”

Voters last approved an infrastructure bond in 2022, for $23.8 million. More than a quarter of that went toward replacing emergency radio systems and purchasing three new fire trucks. Other chunks helped fix sidewalks and replace aging equipment at Leddy Arena and city hall.

Officials estimate the latest bond would cost the owner of a home assessed at $300,000 about $7 more a month in taxes starting in fiscal year 2026.

The proposal comes as councilors are considering sizable drinking water and wastewater bonds for the March ballot. Unless public works officials can find ways to tamp down the projected $225 million cost, the bonds could more than double residents’ water bills over the next decade.

The city nearly maxed out its borrowing capacity in 2022 when voters approved spending $165 million to build a new high school. But officials said on Monday that grand list growth and paying down debt faster than planned freed up room for additional spending.

Councilors generally seemed receptive to the proposal but were wary of asking voters to approve it alongside the water bond, a hefty school budget and a possible tax increase to close an anticipated budget gap.

“Everything we have in the pipeline is so necessary, so important … but we need to examine the burden to our residents,” Councilor Grant said.

Councilor Mark Barlow (I-North District) agreed, saying the city needs to be transparent about how much it will ask taxpayers to spend.

Councilors will decide next month whether to place the item on the ballot.

Correction, December 10, 2024: A previous version of this story incorrectly stated that Christopher-Aaron Felker had acknowledged putting up stickers.

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