Charlottesville City Council: Restrictive parks regulation applies to all (but really just to you, Svetlana)
By Guest editorialist, Brian Vanyo
In an ongoing debate with the Parks Director and City Council over a proposed regulation affecting private athletic instruction, I’ve learned that the rule of law matters little here in Charlottesville. Arbitrary regulations and disparate treatment seem to be an acceptable practice to city administrators and elected officials alike.
Two months ago, my wife Svetlana and I complained to the Parks Director that Svetlana was being harassed by pool staff at the Smith Aquatic & Fitness Center. The harassment began over the summer when Svetlana started giving swimming lessons to our 8-year-old daughter. Staff members would often approach Svetlana at the pool and demand that she stop instructing. They explained that there was a pool policy against private swim instruction. Even after Svetlana responded that she was merely instructing her own child, the pool staff sometimes insisted that she still stop all instruction. At subsequent outings to the pool, Svetlana had to discretely teach swimming techniques to our daughter because she did not want to attract the attention of pool staff members, who might harass her again if they caught sight of her instruction.
Incidentally, the official pool rules and regulations included no prohibition against private instruction. Whenever Svetlana asked pool staff to see the regulation that they were enforcing against her, they never produced it.
Without any written regulation against private instruction, Svetlana later attempted to teach private lessons at the pool after other residents began requesting them from her. Most of these requests came from other parents of children on the city swim team, who, like Svetlana, were dissatisfied with the poor quality of instruction by the city coaches. So they sought individual lessons from Svetlana, who has a unique knowledge of swimming technique—she is a former Olympic swimmer who spent 9 years competing at the international level, collecting numerous medals throughout her career.
But when Svetlana began instructing, she was again met with harassment by pool staff, even though no other swimmer at the pool was impacted by her lessons. Her instruction did not prevent anyone from using the pool, nor did it impede anyone in the pool. Pool regulations require swimmers to share lanes when an open lane is unavailable—lanes can accommodate 10 or more people when swimmers swim in a race-track pattern in the lane, and there are 8 lanes at Smith AFC. Whenever Svetlana provided instruction, she shared the lane with at most one other person—most of the time, open lanes were available and everyone in the pool had lanes to themselves. Regardless, pool staff still ordered her to stop all instruction.
Frustrated by this unwritten policy (and some belligerent treatment by pool staff towards Svetlana that I won’t address here), Svetlana and I met with the Parks Director, Brian Daly, and the Recreation Division Manager, Vic Garber, to complain and to learn if there truly was a written policy that restricted instructional activity. Daly and Garber maintained that a policy against private instruction existed, and they assured me that they had the authority to enforce this policy. But when I asked Daly to show me the official regulation, he couldn’t. He stammered that he could not produce the regulation at the time because (lame excuse alert) the regulation was buried in some files somewhere—he said he would get back to me when he found it. I walked away from the meeting thinking that our Parks Director is either grossly incompetent (unable to manage the handful of regulations that govern the parks) or that he just lied to me.
A couple days later, I emailed Daly to ask if he found the missing regulation. I got no response, so I decided to draw more attention to this issue. I sent a lengthy email to the City Council and others detailing the problems we’ve had with the pool and Daly. The City Manager, Maurice Jones, responded that he would look into the matter further. I asked him if he or a prior City Manager had ever approved of a regulation prohibiting private instruction at park facilities. According to City Code Section 18.1(d), all park regulations must be approved by the City Manager. In an email response, Jones avoided my question, but he tried to assure me that Daly is free to exercise broad discretion in setting parks policy. He added that he had asked Daly to develop “a more detailed written policy pertaining to the issue of conducting private business on the city’s Parks and Recreation properties.” This confirmed my hunch that no actual policy existed, and that Daly was abusing his authority under the law.
Svetlana and I then addressed the City Council on October 17 to complain about this issue. We complained that the policy, if it existed at all, violated Svetlana’s right to free speech. In fact, a federal court has held that instructional activities are “a protected form of expression under the First Amendment right to peaceably assemble, to teach and to disseminate information.” We complained that the policy was also discriminatory because it was being enforced only at city pools and left other forms of private instruction (tennis lessons, for example) free from regulation. And we complained that the policy was unconstitutional because it was arbitrarily enforced—that it permitted pool administrators to pick and choose whom to harass. The U.S. Supreme Court considers any law or regulation invalid when “it may authorize and even encourage arbitrary and discriminatory enforcement.” When this regulation reaches innocent individuals like mothers seeking to teach their children how to swim, it is undoubtedly arbitrary. And when this regulation has been enforced only against two Russian-speaking women (Angela Tutovani is the other woman who complained at the City Council meeting that she was harassed for teaching her son how to swim), then it is discriminatory or at least has the potential to be enforced in a discriminatory manner.
In response, the City Council and staff defended the policy. They suggested that Svetlana was somehow profiting off the public by teaching at a public pool. (She is not. She is profiting off her extensive knowledge of swimming.) Maurice Jones stressed the need for the city to limit its liability. (Its liability, of course, is unaffected by Svetlana’s instruction because it has the same obligation to provide a safe swimming environment no matter who is using the pool.) And Councilwoman Kristin Szakos even suggested that the city needed to exercise some kind of control over instructors to “make sure that they’re not teaching kids, you know, to breath under water or something crazy.” (Mindset: the people are stupid; without government regulation to guard over us, there will be total chaos and danger.)
City Attorney Craig Brown finally jumped in and said, “It strikes me that we’re debating a policy that hasn’t been written yet.” The Council then asked Daly if there actually was an existing policy, and he responded that it was in development and would be ready in two weeks. So Daly had in fact violated the law by enforcing a regulation that existed only in his mind. Daly had in fact lied to Svetlana and me when he insisted that a regulation governing this activity actually existed. The Council never reprimanded or even questioned Daly about his unlawful exercise of authority. They instead pressed on with business and followed the recommendation of the City Attorney, who said, “I think [Daly] should have the opportunity to come up with what he thinks is a fair and enforceable—and enforceable in a consistent manner—policy, and if the Vanyo’s are still upset, then they can let you know.”
We are still upset, not just because the new policy does nothing to address our constitutional concerns, but also because the City Council has revealed its intent to restrict only Svetlana’s right to instruct.
The regulation that Daly proposed to the City Council at the last meeting (December 5) created a licensing requirement for any private instruction at all park facilities. The regulation still infringed upon an individual’s right to engage in free speech. The regulation was still unconstitutional for its arbitrary enforcement. But at least the regulation was meant to apply equally to all kinds of private instruction. After Gary Elwell—a private tennis professional who offers paid instruction on public courts—spoke out against the policy, however, the City Council showed its discomfort with the policy’s equal application.
The City Council’s response to Gary’s complaint was quite striking because it was so disparate from the response that Svetlana received. Gary wasn’t lectured by Councilman David Brown that, because he had a business, the city was free to regulate it. Gary wasn’t lectured by the City Manager that tennis instruction somehow added to the city’s liability. Councilwoman Szakos didn’t explain to Gary that his instruction needed to be controlled by the city so that it could ensure that tennis instructors weren’t doing something crazy, like teaching kids to swallow tennis balls. The Councilors instead were sympathetic to Gary’s complaint.
Mayor Norris’ response was particularly curious. He said, “I guess I’m a little bit concerned about the comments from Mr. Elwell because I don’t want to throw the baby out with the bathwater.” I suppose Elwell represents the baby that Norris wants to coddle, and Svetlana represents the wastewater he wants to discard. Mayor Norris continued, “And if we have a policy that’s gonna make it difficult or impossible for somebody like Mr. Elwell who is trying to work well within the system… I want to make sure that the policy is crafted in a way that we’re not allowing people to abuse the system but accommodating someone who is trying to work well within the system.” I suppose our efforts to draw attention to an unwritten policy that was illegally enforced against Svetlana—and our attendance at two Parks Board meetings to comment on the newly drafted policy—is what the Mayor regards as abusing the system and not working within it.
Councilman Brown was especially uncomfortable with Daly’s regulation—what he labeled as a “stifling policy.” Brown, who said he has paid for private tennis lessons in the past, argued that the regulation should not be so broad that it impacted activities like tennis lessons. He suggested that the city should not even consider regulating activities on courts and fields until other residents start complaining that private instructional activities are inhibiting their use of these facilities.
Brown’s recommendation is reasonable, but it must be applied to ALL facilities, including pools. There has not been a single complaint about Svetlana’s instruction at Smith AFC. And unlike a tennis lesson, which takes over one of only 12 public courts in the city and forces other residents to wait for a court on a busy day, Svetlana’s swimming instruction does not impede other swimmers nor deny them access to the pool.
Yet the City Council requested Daly to come up with a policy that regulates only the pool. And because Svetlana is the only person in the city seemingly affected by such a regulation, it is essentially targeted at her. There is no basis for it. The proposed regulation is completely arbitrary and without justification. It is unfair, inequitable, and unconstitutional. But it is totally acceptable here in Charlottesville.