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LA’s Department of Disempowerment

GELFAND’S WORLD--To the reader: This is a rather long submission, but sometimes you just have to fight through the details to explain things.

In this case, the story involves a recurrence of the two-year-old battle between the Department of Neighborhood Empowerment (DONE) and the Central San Pedro Neighborhood Council (CeSPNC). Once again, DONE is in the wrong. 

To begin: 

Perhaps I was a bit rash when I publicly called out the Department of Neighborhood Empowerment for a letter they sent to the Central San Pedro Neighborhood Council. I believe that I referred to it as an extortion note. Was this going a bit far? Before deciding, we ought to review the facts. 

The letter, dated December 6, 2019, informs the CeSPNC that it will not be allowed to take a vote that was already on its December 10 agenda. There is no reason to believe that the agenda item was anything but fully lawful. The item would, if passed, have removed the president and two other officers from their positions. That agenda item was scheduled to be heard as item 9 on the official agenda, which had been properly noticed and posted. 

You can see the letter here.

 

Let’s consider what’s in it. 

The essence of the letter is contained in the second paragraph. It is appropriate to consider that paragraph in its entirety, because it contains several points that are, to my mind, completely inappropriate. Here’s the paragraph: 

“We are sending this letter to express concern regarding complaints we received about harassment and other misconduct among your board members. These complaints require the City to conduct an investigation. Accordingly, the Office of the City Attorney’s Labor Relations Division will be reviewing the complaints and may be contacting board members to gather additional information. You are required to cooperate with this investigation. In the meantime, your board can still function as is, but we caution against taking any action to remove board members until the investigation is completed. Failure to cooperate with the City’s investigation or engaging in violations of any applicable law, rule, or regulation could lead to your neighborhood council being placed into ‘’Exhaustive Efforts.” 

Consider the elements of the letter in order, with a few comments I’ve inserted in italic. 

“We are sending this letter to express concern regarding complaints we received about harassment and other misconduct among your board members.” 

The new general manager and some of her staff members came to the board meeting in question, which took place on Tuesday of last week. When board members asked for details as to the nature of the complaint, they got precious little in reply. Board members pointed out that they had not seen a copy of the complaint, nor were they aware of any details. It became obvious that the complaint was made to the city by the current board president (Maria by name) who apparently alleges that other members of the board have been rude and insulting to her. There may have been more, but again, we the public and the members of the governing board were not allowed to hear any details. There is reason to believe that some of this allegedly rude conduct was outside of board meetings, in the form of emails. We are also aware that at the previous month’s board meeting, there were contentious comments going back and forth between the president and some of her fellow board members. It is also very clear that the president has made a number of mistakes during the short period of her incumbency, including OK’ing an expenditure without board approval (a major NoNo) as well as being fairly unschooled in the art of running a meeting. In other words, what we have is a normal slice of life in which a president fails to gain the trust and support of her board, continues to make substantial mistakes, and is terribly sensitive to criticism of her actions in office. 

Now there may in actuality have been harassment, but neither DONE nor the City Attorney’s office have bothered to inform the target of the complaint what the specifics actually are. 

 “These complaints require the City to conduct an investigation. Accordingly, the Office of the City Attorney’s Labor Relations Division will be reviewing the complaints and may be contacting board members to gather additional information.” 

This is one of those things about dealing with the city government that I honestly find puzzling. Suppose any one of us were to complain that a member of the City Council had spoken to us in a condescending or even insulting manner during a committee meeting. Would our complaints require the city to conduct an investigation, and if so, on what basis? I think the answer is clear – that the city would not be required to conduct an investigation of a City Council member making use of his Constitutional right to express himself. And if the city did an investigation, the rights of the council member would not be limited during that investigation, and the City Attorney’s office would most likely put the issue to rest fairly rapidly. But in any case, the City Attorney would not threaten to remove the councilman from the council, or to shut down the councilman’s committee. 

Why then does the city have to investigate a complaint by a person who was, after all, in the highest position of authority in this neighborhood council? Is she to be treated in some sense as equivalent to a city employee who has the right to be protected from being harassed by her immediate supervisor? For some reason, the city has chosen to treat complaints about neighborhood council conduct as equivalent (in the legal sense) to workplace violence complaints. It’s as if elected neighborhood council board members are treated as if they were employees and/or managers in a city department, and therefore subject to the rules that employees must follow. 

And even then, there is a difference between legitimate criticism and true harassment. 

Is there some legal right that the CeSPNC president has, to be shielded from complaints and criticism? Does an allegation of harassment justify the city freezing the action of the neighborhood council? 

You are required to cooperate with this investigation.” 

This is puzzling, outrageous, and a bit scary all at once. The only reason it isn’t totally scary is because I fail to see how it could be enforceable. If the members of the CeSPNC don’t pick up the phone when the City Attorney’s office calls, what’s going to happen to them? Is SWAT going to come over and break their doors down? Will they be arrested and carted off to jail? What does it mean when DONE (a civilian agency, and not the LAPD or the City Attorney) says that CeSPNC board members are REQUIRED TO COOPERATE? It’s like something out of a post-World War II comedy which contains that old line, “Vee haf ways of making you talk!” Perhaps DONE meant something a little different but they made no effort whatsoever to explain or limit that statement. 

In the meantime, your board can still function as is, but we caution against taking any action to remove board members until the investigation is completed. Failure to cooperate with the City’s investigation or engaging in violations of any applicable law, rule, or regulation could lead to your neighborhood council being placed into ‘’Exhaustive Efforts.” 

So this is the crux. CeSPNC was told that it could still function, but what’s offered with the left hand is pulled back by the right hand. Specifically, the CeSPNC board was forbidden to take action on an agenda item that was lawfully on its program, and for which the board had every reason to want to pass. 

Let’s get back to my discussion without using the alternating color approach. (Note: This style of responding to other people’s words on a line by line basis was done a lot in the early days of the internet. It was referred to at the time as “Fisking” because it was an approach to criticizing the writing of somebody named Robert Fisk.) 

What was CeSPNC trying to do that DONE considers so objectionable? 

That agenda item was to reduce several officers in rank – they were not in jeopardy of being removed from the board, but they would be stripped of their authority as officers. This should have been a straightforward, fairly noncontroversial item, considering that those officers had missed several successive meetings already, according to open testimony that was offered at this week’s board meeting. The board been operating in a somewhat inadequate way, but there is a good explanation -- when a substantial group of people intentionally miss meetings, things can get a bit sticky. A couple or three months ago, I came to a scheduled board meeting and there were only 6 board members present. They were, to say the least, a long way from a quorum, and they couldn’t take up action items at that point. 

The appropriate remedy for having a president that can’t or won’t fulfill her duties is to remove her from that position. Who should make that determination? It’s simple. If a bare majority of the board votes to remove her, then that should be the decision, because you want to have a system where the president serves at the pleasure of the board and can be removed by majority vote. And if the president has the support of enough board members to provide even a 50% tie vote, then she remains president. 

OK – what does any of this have to do with the existence of a complaint made to the city by the target of that agenda item (the president)? In essence, the question comes down to this: If Maria is facing a vote to remove her from the presidency, can she prevent that vote from taking place by filing a complaint with the city against her fellow board members? She is, in effect, asking the city to violate the democratic rights of her fellow board members, and she is asking that the city do so at her say so. Moreover, the timing was such that there was effectively no chance for the rest of the board to hear the specific charges. 

What happened in reality was that the governing board members were put in a position where they were guilty until they can – at some time in the future -- prove themselves innocent, and lacking information as to the specifics, there was no way for them to even discuss the charges. 

And guess what? The city said yes to Maria’s demand. That’s the essence of the DONE letter. 

And DONE is backing up its demand (leave Maria alone until we tell you that you can have your rights back) with a threat. If CeSPNC dares to act on a motion that it has every right to take up, then CeSPNC will probably be put into something called “exhaustive efforts.” Now EE ain’t what it used to be, back when it was a process that tried to rescue a few neighborhood councils that didn’t know what they were doing. Under the current version, exhaustive efforts means that DONE will take over your neighborhood council completely. You won’t be allowed to hold a meeting without their say so, and when the meeting happens, a DONE staffer will run it. DONE will censor what you want to have on your agenda and at least in one case I witnessed a couple of years ago, the DONE staffer running the meeting will disregard votes by the board and either pass or fail board motions as he sees fit. 

Curiously enough, this week’s action by DONE is almost a carbon copy of something they did a couple of years ago. Back then, there was a board that had some disagreements. At one point, the committee putting together the next board meeting agenda inserted an item similar to the one cited above for this week’s meeting. On the night of the meeting, a DONE staffer came into the meeting, told them that they could no longer hold their own meeting, and that he would be running it. The neighborhood council could no longer hold meetings, write agendas, or take votes without the prior approval of DONE and by means of a DONE staffer actually running each meeting. DONE shut down the committee system and sent its own staff members to preside over the board meetings. 

One such meeting involved a staffer who was grossly incompetent in parliamentary procedure and took things to a new level of contempt for honest brokering. 

I was there at that meeting, and I wrote a column describing the chaos which you can find here.  

For additional background on that previous mess, you can read an even earlier column here.  

This year, DONE is talking about a harassment complaint against CeSPNC, but we should really look back at that moment two years ago. In truth, the bullying and harassment were on the part of DONE. I’m not denying that there may have been some bad actors on the board at the time, but the official governmental action fully fits the word “bullying.” 

Two years ago: The evening of the meeting, DONE staffer Steve Box walked in, announced that CeSPNC was now in exhaustive efforts, and they could not run their meeting. He would run the meeting. (Note that he was neither a resident of their district, a member of their neighborhood council in any other way, nor an elected member of their board.) CeSPNC was kept in EE for a total of 4 months for the violation of . . .  well, I can’t tell you what rule or bylaw they violated, because to this day, DONE has not explained what it might have been. Now according to the rules, DONE is supposed to use EE for a specific violation of a rule, bylaw, or law, and they are supposed to tell you what it is. This is, after all, a fundamental element of American law. The next time you talk to a DONE staffer, ask for an explanation of what rule, bylaw, or law was violated by CeSPNC to justify putting them into EE. If you are like me, you won’t get an answer either. 

So here it is 2019, and DONE is doing pretty much the same thing they did a couple of years ago, right up to the threatening. To their credit, they did not go all the way into exhaustive efforts.  You might say they’ve tried to ameliorate the situation by not quite going full bore authoritarian. 

CeSPNC can continue to function  as long as it only gives up some of its rights. Unfortunately, the one right that would be most useful to them – to remove an incompetent president and replace her with a competent person – is the right that has been taken away. 

Meanwhile, the pseudo-remedy that DONE and the City Attorney have chosen serves to make it all but impossible for CeSPNC to recover into full effectiveness. Sure, they can do other things (as long as DONE staffers don’t start censoring even more items) but they will be stuck without a full time set of officers until the City Attorney investigation is completed. Anybody want to bet on how quickly the Labor Relations Division will get done? My guess is that the division will try to mandate some sort of conflict resolution, which will implicitly communicate that the president is at least partially in the right, and the remainder of the board is at least partially guilty. Or maybe not. 

And meanwhile, we are left with a series of curious legal questions as follows: 

1) Does a harassment claim, no matter how meritorious, have anything whatsoever to do with the right of the elected board to carry out its normal function by choosing its own officers? 

2) What is the burden of proof? And how serious does an insult or an unkind word have to be to constitute harassment? For example, a board member may be legitimately frustrated by the conduct of the president because the president continues to act in an incompetent manner. We’ve seen it before, and by a lot of chairs. Do they all have the right to be armored against criticism? 

3) Assuming that DONE gets to tell CeSPNC that it needs to avoid holding its vote for the one meeting that has already occurred, then how much time does the Labor Relations division have to do its own work and render a conclusion? 

4) What is the appropriate remedy for harassment? Remember that this is not going to be a criminal matter, at least as far as we know. (If it were, then that language about  being required to participate in the investigation is dead wrong.) So what legal standing applies to the Labor Relations Division’s findings, and what authority does the division have over the CeSPNC board? I would guess that there is no such authority over individual lives. We are all unpaid volunteers. Perhaps DONE and BONC think they can take action against the neighborhood council as a whole, either by EE or by decertification. The optics would not be good, as they say. 

The Take Home Lesson 

Neighborhood councils are supposed to be parts of the city government. As such, the Los Angeles City Attorney, through his staff of attorneys, both advises and represents the neighborhood councils. At least that is the theory. Unfortunately there is a glitch. What happens when one part of city government (the Labor Relations Division and/or DONE) is in opposition to the interests of a neighborhood council? 

We’ve seen that situation again and again. And in each case, the office of the City Attorney comes down against the neighborhood council, whether it is about a story in a neighborhood council newsletter or a complaint against some council board. 

In the case of the current story, the Central San Pedro Neighborhood Council had (and continues to have) an interest in carrying out its work. You can also make the case that the CeSPNC had and has an interest in serving the interests of the public. And most importantly, we the public have an interest in CeSPNC doing its work. But DONE took the opposing side. 

In any case, there was no City Attorney representation of the CeSPNC against the demands made by DONE. From the layman’s point of view, this looks like a real conflict of interest on the part of the City Attorney. I’ve heard a lawyer explain to me that what they are doing is legal, but it leaves a bad taste to say the least. 

What the Central San Pedro Neighborhood Council (and anyone else who is watching) has learned is that DONE and the City Attorney’s office are not there to help us, but to defend the city bureaucracy against the merest hint of liability. When they have the chance, they will help us, but only once their higher responsibilities have been satisfied. It’s never really been a secret, but it’s useful to have the reality made crystal clear. 

So was I being rash when I called out the DONE staff the other night? Was it an extortion letter? The problem for CeSPNC and for DONE is that the answer is maybe yes, maybe no. In my first reading, I got that CeSPNC was in jeopardy of being taken over by DONE (what they call “exhaustive efforts”) if they dared to follow their own published agenda. I see this as a demand accompanied by the threatened consequences. Perhaps DONE was justified in making the demand, in which case it wasn’t so much extortion as a stern administrative rebuke. But that’s not quite how the letter reads.

 

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

-cw