GELFAND’S WORLD--There is an old saying by Gideon J. Tucker (and often erroneously attributed to Mark Twain), that “No man’s life, liberty, or property are safe while the legislature is in session.”
Neighborhood council members have come to realize that we face analogous dangers from a different legislative group known as the Board of Neighborhood Commissioners. The BONC has some murky authority to set policy for the neighborhood council system. This has worked well for relatively minor issues such as the requirement for posting meeting notices but becomes a danger to local autonomy when exercised further.
The real problem that BONC members can’t solve is the intractable condition of human nature – some people just don’t like each other very well. The result is that some of the combatants want the government (in the form of the BONC) to solve their personal problems for them. The BONC has never been very good at this for obvious reasons.
Another issue: in practice, new commissioners appointed by the mayor come into office with the desire to help. They want to consider every possible shortcoming in the system and make a new rule to fit each one. They can’t seem to help themselves. That’s why we have the ridiculous requirement that we all view a video on civility. It doesn’t solve interpersonal strife in the real world, but the BONC and the city government get to claim that they did something. It’s just a matter of ticket punching on their part, but the requirements add up to hundreds of wasted hours on the part of neighborhood council board members.
Another example about BONC trying to help: Some number of years ago, a couple of BONC commissioners proposed that they create one uniform set of bylaws to be imposed on all neighborhood councils. This did not sit well with its intended victims, and a lot of discussion ensued. A reasonable compromise was worked out between neighborhood council participants and the cooler heads in city government. The agreement was that we were all allowed to maintain our chosen structures, but that we would put our bylaws into a form that was clear and readable. We made the concession that each major bylaw subheading would appear in the same order in every council’s bylaws. The compromise has generally worked and – except for one serious exception – has been adhered to.
That serious exception is that the city government and the BONC have occasionally imposed bylaws changes on all of the neighborhood councils without our individual consent. They go through the motions of inviting public input, but for most of us, the prospect of driving 40 or 50 miles round trip to have five minutes speaking time is not all that appealing. Also, half the BONC meetings are held at the City Hall in the middle of a weekday, so attending the BONC meeting is nearly impossible for people who work for a living.
Now, once again, the BONC is considering changes that would be imposed on our current bylaws. Through the courtesy of BONC commissioner Len Shafer, the current draft of the two proposals is pasted in at the end of this column. I would like to consider the proposals in terms of what they are intended to accomplish (i.e.: what the BONC wants to do) vs. the damage they would do to the current balance of power as viewed from the perspective of a neighborhood council that does not require any such fixing.
The first set of proposals would create uniform bylaws language regarding the censure and removal of members from neighborhood council governing boards. The idea is well meant on the part of BONC members – it is designed to give board members a tool to deal with what one BONC commissioner refers to as “bad actors” who manage to get elected to the board and then cause trouble. In its current draft, the proposal would allow any 3 board members of a neighborhood council to accuse another board member of some offense(s) and cause a censure motion to be put on the neighborhood council’s agenda. Let’s repeat that in slightly adjusted words: Any rancorous faction of as few as 3 people can put its political enemies on trial.
I’ve seen a few such rancorous factions over the history of our neighborhood council system. We’ve had a couple of them down here in the harbor area, and we’ve heard of other such standoffs in other parts of the city. Most notably, in the early days of the Venice Neighborhood Council, there were competing factions that battled each other continuously and eventually forced their own council to go out of business.
What we’ve observed over the years is that some folks come into the system with a bit of (shall we say?) paranoia towards everyone else. They continually accuse their political opponents of conspiring against them. Any one such person merely has to find two other colleagues to sign a censure petition and we’re off to the races. The result will be an agendized item complete with accusations and – according to the proposed BONC rule – the neighborhood council HAS TO take the item up.
I’m curious about how the City Attorney’s office will react once they begin to understand that this is a procedure that is capable of turning a city agency (the neighborhood council) into an agent of libel and slander. How will the City Attorney and DONE respond when they are told that publishing such an agenda item would be a libel? I’ve seen the litigation-averse City Attorneys try to intervene over a lot less.
Perhaps the city will try to claim some level of legal immunity. The notion seems farfetched, considering that neighborhood council boards are not courts of law and – in my experience – don’t handle personal disputes very well, particularly when it comes to the accused’s right to confront his/her accusers and to present evidence on his own behalf. There was one celebrated case of a neighborhood council board out in the valley which removed one of its members by a procedure which was remarkable in its obtuseness. At one point, the chair forbade the accused from questioning one of his accusers by reciting, “This is not a back and forth!” In other words, the standard principles of American justice were treated with contempt, as the right to cross examine one’s accusers was refused. The current proposal we are discussing here fails to provide such safeguards.
How about the right of the accused to be represented by a lawyer? Will that right be enshrined in the new rule or will it be denied? How about the right of the accused to have assistance by someone who is not a licensed attorney but has advanced knowledge of administrative procedure?
So much for procedural difficulties. The objection to this proposal from a real-world standpoint is that the worst offenders will be the first to file censure motions.
The BONC proposal seems to envision situations where there is one person who chronically disrupts meetings. With all due respect to the commissioners, it seems to me that there are two problems with this scenario. The first, obviously, is that some troublemakers figure out how to use rules to torment their opponents and this would just be one more such tool. The other point is that this kind of situation is capable of being remedied by less drastic methods.
What is that better approach? The ordinary use of Roberts Rules of Order by a chair properly versed in their use should be enough. It would be a remedy for the city to adopt the following policy: Upon being given a warning by the chair, any second disruption of a meeting by a board member (or a member of the public) will result in that person being removed from the meeting. It’s already state law, so repeating it to neighborhood council boards isn’t that much of an issue. Notice that this approach deals with the problem immediately, unlike the current proposal which requires something in excess of 30 days just to be heard.
We’ve seen this procedure used properly, and it worked well. Neighborhood council boards have the ability to have uniformed police officers present at their meetings (just as the City Council does) and removal by the police is the acceptable way to do these things. I should point out that the use of this procedure has a powerfully educational effect on those being removed, as the prospect of arrest is attendant. In my one experience of seeing this happen, it became evident over the succeeding months that the trouble makers did not return. It was merely necessary to show them that they would not be allowed to get away with conduct that a previous board had put up with.
The next BONC proposal is for removal of a member from a neighborhood council board. The procedure is essentially the same as for censure, except that the person to be removed must have been censured by the same board in a previous meeting. The idea seems to be that censure allows the bad actor to mend his ways, and if he continues to misbehave, then removal is appropriate. According to the BONC proposal, removal would require “two-thirds (2/3) of Board members present.” An earlier version in which abstention shall be considered a vote in favor of removal has now been altered.
Let’s consider a board of 17 members (common in this area) which through a recent election seats 12 members of one faction and 5 members of a competing faction. It is obvious that the removal proposal would create a tool by which the majority faction could get rid of all of its pesky opposition and make itself into a unanimous majority.
A supposed protection against misuse of the process
The twin proposals include a phrase which allows censure and/or removal for the infraction of “misuse or abuse of the censure or removal process.” This is meant to protect the innocent from unwarranted attacks by malicious opponents. One is tempted to think of the snake swallowing its own tail, but consider a board with two factions, one being a little more aggressive than the other. When the first faction files a censure motion against its opponents, the second faction will immediately file its own censure motion against faction number one. Since there is a 30 day minimum before a censure proposal can be acted upon, faction two will have plenty of time to get its own digs in.
And then both factions will come running to DONE and ask for redress. We’ve seen this same scenario many times over the years.
I hate to be picky here, but I think that the BONC commissioners trying to enact these rules are being just a bit naïve. The stated intent is that the accusers have to demonstrate their case against the accused. I think that the drafters of this proposal are imagining a situation in which the bad actions have already occurred repeatedly at their meetings, so there is no need for additional evidence to be presented. In effect, the board members who would be asked to vote on the removal would be functioning as witnesses, jury members, and presiding judges, in that they will be sentencing the accused to censure and then to removal.
Such a system depends on judgments made by the board members (acting as the jury) as to the intent and effect of words spoken (or shouted) by the defendant. This is where a bit of paranoia goes a long way, as some of us will infer one thing based upon a particular history while others will infer something else.
In other words, the proposals create a giant “he said she said” situation most of the time. The corollary is that it becomes incredibly hard to demonstrate that a censure motion is itself improper. Accusing your opponent of a thought crime (i.e.: contrary to the code of civility) based on some uttered phrase is easy enough to do, and it would be incredibly hard to prove that your motives are themselves unclean.
Here’s a better idea. If the BONC wants to create a censure and removal system so badly, then let them do the dirty work themselves. They can receive complaints, direct DONE to observe the indicated neighborhood council for a couple or three months, and then hold a hearing. The BONC claims the legal right to remove a board member (or an entire board) so let them take the responsibility onto themselves. And make sure that full due process is guaranteed, including the right to representation by legal counsel. This method would at least allow for a little protection against claims against the city for being a party to slander. My understanding is that there are a few bad actors, but not dozens and dozens. Let the BONC take care of the problem. Since BONC meetings have the assistance of the City Attorney’s office, the process will be a lot cleaner than leaving such actions to neighborhood council boards of questionable legal capabilities.
I’d like to go back to the story about the Bylaws Taskforce for a moment. At that time, we specifically agreed that a neighborhood council did not have to alter the essence of its bylaws, but merely had to reorder them so as to fit the agreed upon list. My council has parts which state “intentionally left blank,” and one of those parts is the section on censure and removal. This is a decision we originally made back in 2001, and we have held to it ever since without any serious injury. We could change it if we ever felt the need. Right now we don’t feel that need, and we call on the city to uphold its part of the original bargain that came out of the Bylaws Taskforce.
It’s useful to have a uniform code for councils that wish to have censure and removal
There is one useful part of a BONC action here, and I would support it if the proposal were limited in the following way: About 70 percent of neighborhood councils currently have some language in their bylaws that allows for censure and/or removal. As mentioned above, the procedures are not always well specified, and proper due process for the accused is not generally guaranteed. If the BONC wants to define a process including carefully tailored due process safeguards as the requirement for having a censure and removal procedure, that would be an improvement over the current haphazard system. The required limitation is that any neighborhood council that wishes to maintain its current system (i.e.: no language regarding censure or removal in its bylaws) can maintain that rule. What we need to do is to strengthen protections to the accused rather than to weaken them and, at the same time, defend neighborhood council local autonomy.
The reason we need to be careful
In our long experience, it’s clear that a lot of neighborhood council participants (including stakeholders) have tried to get the government to enforce their own prejudices against their opponents. I’ve seen many instances in which people accuse their own boards of misconduct simply on the basis of policy disagreements. We should make clear that policy disagreements are not misconduct, that arguing one’s own views is not misconduct, that voting contrary to the votes of the majority is not misconduct, and that calling on the chair to act according to the prevailing rules (as opposed to acts of petty dictatorship) is not misconduct.
I will agree with the commissioners that repeated attempts to shout down one’s opponents while they are lawfully speaking is misconduct. The remedy is for the chair to call out such conduct immediately.
Contempt for the voters
Neighborhood council boards are selected by the voters. Most of us have chosen to have the City Clerk’s office conduct a secret ballot. The choice of the voters as to who sits on the board should be the highest determining factor. It has become increasingly obvious that a number of people in the city government and at all levels of the neighborhood council system wish to second guess the voters when the results of an election are not to their liking.
Attached below is the current proposal. I would like to point out that in its introductory wording, the proposal states that “The purpose of the censure process is to place a Board member on notice of misconduct and to provide the Board member with an opportunity to correct the misconduct.” This goes contrary to our traditional notion that the accused is presumed innocent until proven guilty. It treats guilt as a matter of fact rather than a disputed item to be resolved rationally. That introductory statement should be rethought.
Here is the current proposal as provided by BONC commissioner Len Shafer:
Censure. The purpose of the censure process is to place a Board member on notice of misconduct and to provide the Board member with an opportunity to correct the misconduct. The Board may censure any Board member at a regular or special meeting open to the public following a good-faith determination by the Board that the member has engaged in conduct that is contrary to rules and regulations applicable to the Board or that impedes the orderly business of Board operations. Grounds for censure include, but are not limited to, persistent disruptive conduct at meetings, violations or abuses of the Board’s bylaws or rules, violations of the Code of Conduct, acting on behalf of the Board without authorization, and misuse or abuse of the censure or removal process. The Board shall use the following procedure when censuring a Board member:
- A motion to censure a Board member may be initiated by (3) Board members or by a majority vote of the Executive Committee. If initiated by three (3) Board members, the motion shall be delivered to any member of the Executive Committee. The motion shall be in writing and provide the specific facts and grounds for the proposed censure.
- The motion shall be placed on the agenda of a regular or special Board meeting scheduled at least thirty (30) days following the delivery of the motion request or vote of the Executive Committee.
- The Board member subject to censure shall be given a minimum of thirty (30) days prior written notice, which may include email, of any meeting at which a motion to censure will be considered. The notice shall provide the specific facts and grounds for the proposed censure. The Board shall also provide a copy of the notice to the Department of Neighborhood Empowerment a minimum of thirty (30) days’ prior to any meeting at which a motion to censure will be considered.
- The Board member subject to censure shall be given an opportunity to be heard at the meeting, either orally or in writing, prior to the Board’s vote on a motion for censure.
- The Board shall decide by a majority vote of those present and voting whether or not the Board member should be censured
Removal. Any Board member may be removed by the Board for cause, following a good faith determination by the Board that the member has engaged in conduct that is contrary to rules and regulations applicable to the Board or that impedes the orderly business of Board operations. A Board member shall not be subject to removal under this Section unless the member has been censured at least once pursuant to Section 8. Grounds for removal include, but are not limited to, persistent disruptive conduct at meetings, violations or abuses of the Board’s bylaws or rules, violations of the Code of Conduct, acting on behalf of the Board without authorization, and misuse or abuse of the censure or removal process. The Board shall use the following procedure when removing a Board member:
- A motion to remove a Board member may be initiated by (3) Board members or by a majority vote of the Executive Committee. If initiated by three (3) Board members, the motion shall be delivered to any member of the Executive Committee. The motion shall be in writing and provide the specific facts and grounds for the proposed removal.
- The motion shall be placed on the agenda of a regular or special Board meeting scheduled at least thirty (30) days following the delivery of the motion request or vote of the Executive Committee.
- The Board member subject to removal shall be given a minimum of thirty (30) days’ prior written notice, which may include email, of any meeting at which a motion to remove will be heard. The notice shall provide the specific facts and grounds for the proposed removal. The Board shall also provide a copy of the notice to the Department of Neighborhood Empowerment a minimum of thirty (30) days to any meeting at which a motion to censure will be considered.
- The Board member subject to removal shall be given an opportunity to be heard at the meeting, either orally or in writing, prior to the Board’s vote on a motion for removal.
- The Board shall decide whether or not the Board member should be removed by an affirmative vote of two-thirds (2/3) of the Board.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at email@example.com)