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DONE:  Grievance Process Has Flaws, Possible Lawsuit

GELFAND’S WORLD - It is my considered opinion that the City of Los Angeles is about to open itself to a libel action based on the conduct of the Department of Neighborhood Empowerment.

DONE is the city agency that is supposed to oversee our city's neighborhood councils. The problem stems from DONE's conduct of something called a grievance process. This is a system ostensibly designed to deal with complaints of a modest nature within the neighborhood council system. Any person can file a grievance against any neighborhood council, and the city is supposed to review the complaint, decide whether there is sufficient cause to follow up on the complaint, and if so, to engage in the process that is specified by ordinance. 

The grievance that is in question here was filed by the Lou Caravella, the president of the Central San Pedro Neighborhood Council (CeSPNC). Caravella actually filed against his own board. In brief, Caravella complained that his board had agendized a motion to remove the chair of its committee on homelessness, and that the board had then passed that motion by a vote of 10 - 5 at its meeting. Caravella argued that the bylaws and standing rules of his neighborhood council provide that the committee chooses its chair, and that therefore the action of removing the chair was illegal. The logic of this assertion is weak, if not entirely flawed, as we shall see, but there was one more aspect of the complaint that needs to be reviewed by the city lest it continue on its risky path. 

Caravella argued in his grievance filing that because the agendized motion was improper (according to his reading of the rules) that it "effectively was a personal attack." Thus he was accusing a fellow board member (the originator of the motion to remove the chair) of acting improperly. In fact, Caravella doubled down on the accusation by claiming that there were violations of the code of conduct and code of civility that the city tries to impose on neighborhood council boards. 

Thus, Caravella was making a twofold attack. One part was that due to the official rules of his neighborhood council, a particular action was technically improper. The second part of his accusation -- slightly paraphrased here -- was that there was evil intent on the part of one of his fellow board members. This accusation is defamatory on its face, although truth would potentially be a defense. 

We need to take a brief aside here to explain the process that the city has ordained for hearing such grievances. In the case where a neighborhood council board member makes an accusation against his own board, the matter is referred directly to what is called a regional grievance panel. This is a panel of three people and, according to the city ordinance, is supposed to be chosen by lot from among volunteers from the various neighborhood councils in the region. This is already a flaw, since the panel may turn out to consist of people who personally know one or more of the accused or know the accuser. In this case, at least one of the panelists (and perhaps two) knew the accuser and the accused personally. 

We should note that in court cases, members of the jury pool are invited to say whether they have any personal relationship with any of the parties to the action. In the case of this grievance hearing, there was no such inquiry. Moreover, there does not seem to be a process whereby either of the parties could challenge one or more of the panelists as prejudiced. For example, it is entirely possible that one or more of the panelists know the accused board member and simply don't like him, or have disagreed with him on policy matters (such as our approach to homelessness) in the past. There does not seem to be any remedy for prejudice on the part of the panelists. There is a pretty good argument that this was to be a problem in the conduct of this grievance hearing.

 

Now we get to the sticky part. The city ordinance sets strict limits on the ability of the accuser to present his case and to the accused to present a defense. You can look at the whole ordinance here.

if you like, but I will provide this quick summary: The accuser gets 10 minutes to give his side. The accused gets 10 minutes to respond. They each get another 5 minutes for rebuttal, and then the panel gets to ask questions. Each side is invited to present documents in advance of the hearing, but there is no provision for presenting evidence during the hearing, nor for the right to cross examine the other side's testimony. 

The rules do allow the panel, at its sole discretion, to extend the time limits if it chooses, but there was no such extension in this particular case. By the way, the documentation provided by the accuser is listed on the DONE website in the section dealing with grievances, and we can see that the draft minutes of a board meeting is the only document. 

So what happened in the hearing, and why do I think that there were significant errors? 

The panelists consisted of Melanie Labrecque, Birgitta Croil-Snell, and Dean Pentcheff. The first and third are personally known to me, and we have worked on projects together over the years. Croil-Snell is not somebody I know personally. 

In the hearing, there were two matters of substance that were discussed and seemingly resolved. The first is that there is no particular bylaw or standing rule that forbids the governing board from removing a committee chair. In fact, Dean Pentcheff pointed out that in a matter where the bylaws and standing rules are silent, the ruling authority is Roberts Rules. He further pointed out that in terms of authority over the neighborhood council as a whole, the governing board is the ultimate authority. He further pointed out that it would be strange for a board to give authority over itself to one of its committees. 

In other words, there was no rules violation which would justify finding a grievance. 

The second point is, to my mind, equally important, although it is the absence of argument and evidence that is at issue here. Lou Caravella, as the complaining party, provided no argument or evidence supporting the accusation that the motion in question was a personal attack. As the defense pointed out, the committee in question had not held a meeting for some time, and this was a reason to want a different chair. One might or might not agree with that sentiment, but it is obvious that this is a political question subject to personal preference, and one's position for or against does not constitute a violation of the rules. It may be a disagreement over policy, but even under the city ordinance, such disagreements are expressly left out of the grievance process. 

Thus, based on the testimony and documentation that was presented to the panel, there was no grievance to be found. That should have been the end of it. 

Where things got bogged down 

But there was one issue that the panelists insisted on discussing. The CeSPNC standing rules provide that committees get to choose their own chairs. As James Preston Allen pointed out for the defense, the bylaws and standing rules are silent as to how a committee chair is to be removed. Thus there is some ambiguity -- one person might infer that the right to appoint is also the right to remove, and that therefore this is a right that belongs to the committee. Somebody else might argue that in the case of a committee which is not holding meetings, the governing board as a whole has the right to intercede and get things moving by reconstituting the committee or appointing a new chair, as this is not expressly forbidden by any rule. 

This is a legitimate question, but it is not, strictly speaking, a grievance. Two out of three of the panelists felt that they needed to say something about this question. May I offer a possible answer that they might have given: "We find that there was no grievable offense under the bylaws and standing rules of the CeSPNC, but from our more distanced perspective, we would like to note that there is a bylaw or standing rule ambiguity which the CeSPNC would be well advised to consider. The precise process for removing or replacing a committee chair should be specified in the standing rules. In regard to the grievance heard by this committee, we find no evidence of a personal attack or of malice by any board member or by the board as a whole, and find that the board did not violate any of its rules or bylaws." 

That answer was certainly within the purview of the board, and would have been a satisfactory resolution. 

Where the panel went off the rails 

Instead of something like the above, panelist Labrecque argued that they should uphold the grievance. She did not argue that the testimony and evidence justified such an action. Rather, she seemed to be arguing (if I understood correctly) that the ambiguity in the bylaws and/or standing rules should be fixed. She was joined in this sentiment by Croil-Snell, who complained repeatedly that the situation presented in the grievance and the hearing was confusing. I think that both Labrecque and Croil-Snell were reacting to the inherent ambiguity in the standing rules, but to repeat myself, this does not constitute a grievable offense on the part of the board. It's just a question that could be fixed by adding one sentence to the standing rule, and which might never come up again anyway. 

But by upholding the grievance without rejecting the claim that the board had engaged in a personal attack and that a violation of the code of conduct and the code of civility had occurred, the panel has perhaps unwittingly engaged in an act of defamation. They have held a hearing which heard no evidence for any personal attack, and then upheld the entire complaint, including that accusation. 

Thus, should DONE agree with and uphold this verdict, the city will be accusing one or more of its residents of acting improperly to damage the reputation of another city resident, and will be doing so without evidence or testimony. In fact, the city would be doing so in spite of the hearing record. 

Who is to blame? 

There were two DONE staffers who convened the hearing. The more senior was Tom Soong, who has been with the department for quite a few years now. As the senior presiding officer, he is supposed to know the rules, including the ordinance under which the grievance procedure is defined. 

There are two specific concerns I have with the way Soong presided over the events. 

To begin with, I will remind the reader of the strict limits on the presentation of evidence and argument according to the city's own rules. Each side can offer documents into evidence (one did) and testimony is limited to the 10 and 5 minute presentations. 

During the discussion, panelist Labrecque told the listeners that she had gone back and watched the video recording of the board meeting that was in question. In effect, she made herself into a witness rather than a disinterested judge. She was acting on an exhibit (the video) that had not been entered into evidence by either the accuser or the accused, and which was prohibited under the official procedures. Had she been a juror in a court trial, such behavior would have been considered juror misconduct. It is not clear how the city or the City Attorney's office would view such conduct in a grievance proceeding, but in this case, it went against the interests of the defense. Any attorney viewing these proceedings would have treated this as an argument that Labrecque had already prejudged the case before the hearing actually occurred. 

I should point out that Dean Pentcheff, as the chair of this panel, labored mightily to make the case that the board had a right to agendize and vote on the motion in question, and I should point out that neither of the other panelists argued to the contrary. 

The panel agreed to choose one of the remedies that the ordinance specifies, in this case to instruct the CeSPNC to fix its bylaws and/or standing rules (presumably to cure the ambiguity). Pentcheff went along with this verdict, presumably because it is a relatively minor inconvenience to the board as a whole. I wonder if he thought about the ramifications of upholding the grievance as a whole, considering the inflammatory language in part of it. I wonder if the other panelists considered that they were joining in a defamatory action that was clearly aimed at one, or possibly two, board members. 

Flaws in the city's ordinance 

The city ordinance that deals with grievances is relatively young, having been passed by the City Council in March of 2015. It gives DONE various possible remedies by which it can attempt to cure established grievances. These remedies range from the minimal (advising a neighborhood council to reconsider a rule, or advising it to be more careful about how it conducts meetings under Roberts Rules). The ordinance also gives DONE powers which are subject to abuse, such as the right to remove a board member from a neighborhood council board. 

Here's one of the potential remedies which really frosts me: "Issuance of a directive requiring the Neighborhood Council Board or an individual board member or members to undergo mandated training;" 

This goes contrary to the basic, underlying principle of the neighborhood council system, namely that board members are chosen by the voters, not by DONE, and it is up to the voters to remove or replace board members as they choose. And even were there a sufficiently compelling case for removal of a board member, there ought to be sufficient due process, not the kangaroo courts that these grievance panels can be. 

Were I the DONE staffer charged with reviewing this panel's determination prior to the final verdict, I would consider these problems carefully, and at the very least, make clear that the charge of a personal attack and violations of the code of civility and the code of conduct be removed. Otherwise, any member of the CeSPNC board would have reason and standing to sue the City of Los Angeles for defamation. 

A grievance process could be of some use, if properly constrained 

This discussion is for another time. Suffice it to say, if the grievance process were specifically aimed at reconsidering some action taken by a neighborhood council board, and were the grievance panel and DONE limited to sending a board vote back for reconsideration -- and without the ability to punish individual board members by imposed training -- then it could be a useful adjunct to the system. Right now the ordinance is way over-broad and potentially abusive. 

(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])