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Constitutional issues during wartime, high security costs and a budget crisis have created a legal juggling act for David Miller, general counsel for the past 25 years to the Golden Gate Bridge Highway and Transportation District. From its $2.5 million annual legal budget, the district pays Miller and his staff in the public agency group at San Francisco’s Hanson, Bridgett, Marcus, Vlahos & Rudy to oversee collective bargaining with 24 labor unions, a massive earthquake retrofitting effort, the district’s bus and ferry system, and any liability issues from suicides. On top of that, figuring out who can — and cannot — be on the bridge in a time of heightened security has raised difficult First Amendment issues for Miller, 58, who has been at Hanson, Bridgett since graduating from Syracuse University College of Law in 1969. Throughout the bridge’s 66-year history, the landmark has been used as a gathering place for people to demonstrate on behalf of innumerable causes, but that changed in March when anti-war activists were barred from protesting on the span. Access was denied because the nation’s color-coded terrorism threat level had reached orange, and district officials feared that a large gathering could have jeopardized public safety. “The Golden Gate Bridge has always had an open policy,” Miller said. “But now there are some unique issues. . . . We are taking into account the needs to secure the facility with the needs of the people who want to use it for assembly purposes.” In the wake of Sept. 11, access became the primary concern, and it was again brought into focus at the start of the Iraq conflict, said Celia Kupersmith, the bridge’s general manager. “One of the biggest legal issues we’ve dealt with is: When are our sidewalks open?” she said. “[Miller]‘s had to become innovative, creative and flexible in dealing with these First Amendment issues.” The district received requests for 11 First Amendment permits — which are required for groups to legally use the bridge for demonstrations — in the past 11 months, a higher number than usual, according to bridge spokeswoman Mary Currie. Margaret Russell, a constitutional law professor at Santa Clara University School of Law, said that when the bridge turned protesters away in March — while keeping the sidewalks open to others — the protesters’ First Amendment rights were violated. Russell said the district appeared to be selectively barring people based on their intent to exercise free speech rights. “Public safety regarding terrorism is a substantial reason for barring access,” Russell pointed out, “as long as they are barring access for everyone.” The very concept of denying access to public places based on the government’s color-coded warnings concerns Russell. “If governments make these access rules that hinge on whether there’s an orange alert, it’s a problem, because the public doesn’t have any way or mechanism to say when the orange alert is chosen,” she said. “If you’re the government, one way to quash free speech is to intimidate people with these alerts.” Miller said public safety is the main concern behind the district’s decisions. And, he added, the bridge doesn’t bar just protest groups when there’s an orange alert — all group activities are banned, including, for example, bicycle races and movie filming. Nevertheless, he admits that the district has had to adjust and evolve as these issues have presented themselves. When anti-war protesters were denied access in March, there was no alternative location made available, which Russell said was another First Amendment violation. But the district has since put a new policy in place to cover that contingency. “The staff has worked out a plan that if there are spontaneous demonstrations that we cannot accommodate or condone, then a permit is immediately made available for them to go to Chrissy Field,” Miller said. MONEY WOES The bridge is also trying to begin the final phase of a $160 million retrofitting overhaul that was implemented after the 1989 Loma Prieta earthquake — a process that’s even more complicated now because the district doesn’t know where the money will come from. Budget problems and layoffs have created a host of new employment issues and collective-bargaining sessions for Miller and the district’s many labor unions. “While the layoffs haven’t necessarily increased the volume of employment issues, they have shifted the focus,” Miller said. With 24 labor unions and about 915 employees, implementing a layoff program has taken up a great deal of time for Miller and his staff as they negotiate and draft new agreements. In the weeks following Sept. 11, the district was spending $20,000 per week on security, adding 11 new security-oriented positions in 2001 that cost about $700,000 in salaries, said Currie, the bridge’s public affairs director. Since then, there has been some relief in shouldering the cost burden, as the U.S. Coast Guard, California Highway Patrol and National Park Service have increased their own patrols. But despite that, Miller said the district is faced with a five-year, $202 million budget deficit. The looming deficit and higher costs have forced the district to cut or phase out about 40 jobs so far, and there are more cuts to come. And beefed-up security isn’t only more expensive — it has also created the potential for new jurisdictional issues. Many state and federal law enforcement agencies work on the bridge or in the waters beneath it, and all must coexist. Miller is in charge of counseling the district’s board on the legal jurisdictions for the Coast Guard, Federal Bureau of Investigation, Highway Patrol and California National Guard. Despite the small area and number of agencies, turf wars are rare. “Most agencies have set jurisdictional issues aside, realizing there’s a larger calling here,” said Miller. “The district made a plan for them that works so that we’re not involved. I feel fortunate. If there are jurisdictional disputes, then I would have to get involved, but I don’t envision those issues arising.” CLOSER SCRUTINY Another sign of the changing times is the district’s extra-close scrutiny of people who have access to confidential state records, funds or areas of the bridge not open to the public. “Now people need to pass different checks. . . . We’re being more stringent and making sure that special attention is given to that,” Miller said. For one thing, new gates have been erected, with guards posted, for construction crews entering and exiting — and IDs are checked as well. That same issue is being grappled with at another transit agency, BART, where Miller’s counterpart has been busy rewriting employment contracts and implementing new policies to use in hiring contract workers for everything from construction to concessions. “We’re looking at matters involving fingerprinting and background checks on contractors who might have access to property that isn’t open to the general public,” said John Vickland, associate general counsel for BART. Miller also serves as GC for two other Bay Area transportation systems, SamTrans and Caltrain, and he recently completed a contract with the San Mateo County sheriff’s department, which has been enlisted to beef up security at Caltrain. Compared to the bridge, the other transportation systems have been easy for Miller. While SamTrans and Caltrain have some budget concerns, they haven’t laid anyone off. In addition, while security has increased, Miller has not had to deal with any of the First Amendment challenges he faces at the bridge. But some things remain the same. Suicides from the bridge, a constant problem for the district, have always gotten Miller’s attention. The problem has been so pervasive, said public affairs director Currie, that the district stopped counting suicides after the number reached 1,000. Part of Miller’s job is to protect the district from liability, but in his tenure there have only been three suicide-related lawsuits — and the bridge hasn’t lost one. “That hinges on the fact that, to establish tort liability, it’s necessary to establish that the property is deemed dangerous,” he explained. “And in order to succeed, [state tort law] dictates that the property has to be used with reasonable care. That has been a bar to any successful recovery.” Even so, Miller said, the district is always looking for ways to prevent suicides on the bridge. The district’s board has even met with suicide-prevention counselors. Miller expects that his job will continue to evolve as world events do. “What we’ve really seen,” he said, “is that the events of the world have created fewer commuters [and] lower employment.”

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