GELFAND’S WORLD-This column is specifically addressed to neighborhood council participants, but it is also a message to any Los Angeles resident who cares about personal freedom and freedom of the press.
One note: this column gets a bit long because I have to quote stuff and answer it. At some level, this works as comedy, but the topic is serious.
If you are a neighborhood council member, your freedom of speech is at risk, but this time it's from the City of Los Angeles through its neighborhood council agencies and its commission. The whole thing I'm about to discuss is a clown act that might eventually be defeated, but right now, it is a bureaucratic coup that would leave some questionable characters at the Department of Neighborhood Empowerment (DONE) with a lot of power that they shouldn't have.
We've been getting warnings for a couple of months that the city might try to create something called a Digital Communications policy for neighborhood councils. That means, if I read the draft correctly, that the city is trying to control not only how your neighborhood council does its own website, but even what you as a board member can do on your private Facebook page or your private website. It even seems to apply to what I write here in CityWatch.
The good news is that the draft is available to download here. The bad news is that it's 11 pages of fine print. The worse news is that in some ways it's all but incomprehensible, but what is comprehensible goes so far beyond our normal American concept of freedom of speech that we all ought to oppose it. For one, it claims authority over your personal communications such as your own website or Facebook page, or what you say on Twitter.
As an aside, I will point out that some of the draft policy is not crazy because it's merely a restatement of the Ralph M Brown Act. This is the state law that says that a legislative body such as the City Council or your neighborhood council cannot meet in secret to decide in advance how it is going to vote in public. It's a well-established principle all over the country, and it does include one special part that people sometimes miss. If your council has 21 members for example, you cannot call a fellow board member and say, "Vote No on item 3 on the next agenda, and pass it on." After 11 people have had this conversation, you have achieved agreement among a majority of your board, and you have done so in secret. That is called a "serial meeting" because you achieved your improper goal by talking one at a time (that's the serial part) instead of together in one room. It's still illegal.
The point here is that serial meetings are illegal whether you do it by phone, Facebook, Twitter, ham radio, or any other method of communications. (I'm supposed to type in "carrier pigeon" here, but that is too old a joke even for this column, and the semaphore gag has already been done better by Monty Python.)
So DONE and its oversight group, the Board of Neighborhood Commissioners, could have sent out a reminder, something like this:
"Please remember that you are not to violate the Brown Act through any means available, either by telephone or your Facebook page, or on Twitter, or any other channel of communications. It isn't the technology that is important, but the fact that you would be communicating about something that will be coming before your neighborhood council board."
Notice that this would have solved most of the problem, and it would not require any new policy draft.
But bureaucrats being bureaucrats, they couldn't leave things alone.
Some background: When I read through the draft for the first time (I read it so you don't have to), it seemed like some committee had considered every possible rules violation or slightly rude remark that someone might have committed over the course of a lifetime, and then written some ham-handed, near-incomprehensible, pseudo-legalistic mumbo-jumbo that basically says, "Don't do that!" I wondered how this document had come to be.
So, I did a little asking around, and was directed to a public relations person at the Department of Neighborhood Empowerment. I received a cordial and fairly detailed answer to my questions. (Thank you for your courtesy and attention to detail.) In brief, there seem to have been some inquiries for guidance sent to DONE about what we're doing online (or so DONE says), and the response was to try to create some set of rules. In order to do this, DONE asked the Information Technology people and the City Attorneys who advise DONE to consider and advise. Out of all this, we get the proposed Digital Communications Policy.
Why you're not getting a detailed summary and critique here
Back in the early days of blogs (remember them?), a technique called Fisking grew up and became popular. It consisted of taking somebody else's essay or blog and tearing it apart, line by line. I actually liked to read a good Fisking, particularly when it was done by a literate and scholarly person. This draft policy would be a candidate except that the response to a majority of its lines would have been, "Huh?"
To satisfy the insanely curious amongst you, here are two lines with the corresponding Fisking:
"Because many neighborhood council board members use social media and have created websites or newsletters in their personal lives and individual capacities, this policy (at Section 8) also provides basic guidelines for neighborhood council board members who utilize websites, social media, newsletters, and the like as private individuals and in their individual capacities."
My response: Huh?
My alternate response: What business is it of DONE what I write in CityWatch or on any other private communications medium? Are you really claiming that you can kick me off of my neighborhood council board for writing this column?
Another line from the draft: "No neighborhood council board or committee member is authorized to establish or administer a personal website, Social Media, or newsletter utilizing their title or position on a neighborhood council to publish information concerning the neighborhood council's meetings, events, and activities."
My response: You mean if I, Robert Gelfand, an elected board member of the Coastal San Pedro Neighborhood Council, mention that the board wrote and passed a motion opposing the Draft Digital Policy just a few nights ago, and that I not only support it, I helped write part of it, why then the city will claim the authority to punish me as a board member? What's the matter with you people?
By the way, this section gets even sillier: "If individual board members wish to encourage civic engagement through the neighborhood council, they may post a link to the Neighborhood Council Website, and shall, to the greatest extent that a given platform allows, block the ability of any posts and/or comments to avoid any discussion regarding neighborhood council matters."
My response: Huh?
A critical omission
The draft cites the City Charter's wording on the purpose of neighborhood councils. I have written about this Charter wording before. In brief, it is obvious that the concept of the neighborhood council had been around for a long time before the Charter Commissions took up the topic. I'm guessing that the structure and function of the Board of Neighborhood Commissioners and of DONE had been written into the proposed Charter Amendment well before the "purpose" language was tossed in (I heard a lot of the story from a commissioner who wrote some of the language). In my view, the purpose language is basically just filler, and when considered closely, doesn't really mean much anyway.
But the Draft Digital Communications Policy borrows the Charter language, then overinterprets it, and finally comes up with a limitation on what we can do with our own websites and newsletters. We are limited to announcing our meetings and not much more.
Sorry, but my neighborhood council (as so many others) takes positions on weighty issues such as the need for police reform, and we choose to communicate to the public the positions we take. We have done so in printed newsletters and on our website. We feel that we have the full right to do so. After all, neighborhood councils are political constructs, created to give us everyday residents a chance to communicate problems and civic needs to each other.
Suppose our neighborhood council newsletter (after an affirmative vote by the board) were to include the statement, "Black Lives Matter." It was the policy we voted on and an action we chose to take after serious discussion. And we did it. Is DONE going to tell us we can't take political positions based on serious public issues of the day?
But the draft policy prohibits such communications. Or at least it appears to do so. Or maybe I'm misinterpreting it because its writing is so bad.
The only defense is that they didn't mean it
Maybe they didn't really mean it in the way it comes across. The whole thing is such a jumbled gobbledygook that it's hard to tell. But maybe they did mean it and someday, some bureaucrat will use that language to strangle free expression.
There is one theme running through the draft policy that is eerie and offensive
You see, even with all the bad prose and ambiguous wording, it is clear that the policy document seeks to control the way we neighborhood council board members use our own personal websites and Facebook pages and the comments we put up on Twitter.
There is even a threat
I invite you to read section 9.5 (page 7 of the draft) because it comes as close to fascism as a city department is capable. It's a bit of a slog, although it's only a paragraph, but the kicker is the reference to something called Section 22.818(e). I'll help you through that part when we get to it:
" 9.5. Due to the risks that a neighborhood council board member or committee member's use of a private, non-neighborhood Council Website, Social Media, or Newsletter may appear to reflect on a position or policy on behalf of a neighborhood council or the City, interfere with the public's rights under the Brown Act, convert a platform into a limited public forum protected by the First Amendment, or create an appearance of a conflict of interest or bias, violations may result in disqualification of an individual or neighborhood council from participating in a manner pending or that may come before the board, or actions by City under section 22.818(e) of the Los Angeles Administrative Code or remedies such as those listed at Section 22.818(e) of the Los Angeles Administrative Code."
So what is this mysterious code section that the authors won't even quote?. I will point out that this is a section inserted into the law by the City Council several years ago. It was a mistake then, and continues to be a threat to neighborhood councils and to the board members who serve them.
That's because this code section changed a long-standing function of DONE into that of judge, jury, and executioner through the use of something called "exhaustive efforts," a misnomer if there ever was one, and gives the city the authority to kick people off of neighborhood council boards. I will also point out that DONE has violated the wording of this ordinance, as I have explained in previous columns.
Here are just some of the "remedies" that the law now allows DONE to use, taken directly from the statute, which you can find here [https://codelibrary.amlegal.com/codes/los_angeles/latest/laac/0-0-0-82314]:
"(7) Placement of the operations of the Neighborhood Council Board under the control and supervision of the Department;
"(8) Suspension of an individual board member or members;
"(9) Imposition of an election challenge remedy, as authorized by the Department; or
"(10) Initiation of the de-certification process or the process to declare board seats vacant pursuant to Section 22.810.1(e) of this Code."
There may have been some serious intent in the drafting of this code section (say a board member walks in in full camo, brandishing an assault weapon, and starts making insane demands). But in my long experience, it is a mistake to give this kind of authority to DONE considering its questionable record of veracity.
And let's ask once again -- does a reasonable reading of the draft policy apply to columns published here in CityWatch, particularly the columns published recently by at least two of the CityWatch authors?
The DONE people all say it is only a draft, and we should comment on it
It's really amazing how many times I've heard this from DONE people. Part of the reason is undoubtedly that the Board of Neighborhood Commissioners (the board that DONE answers to) will require extended public discussion, even if they already have their minds made up. It's the way they do things.
But I suspect that there is a second reason. I seriously doubt that most of the DONE staffers who have had this dropped on their desks can actually understand it from beginning to end. They realize that it is a long way from being a finished document. They may not realize that the reason for the unfinished state is because it lacks logic (not to mention coherence), but they do sense that there's something not right about it.
So we -- all of us, you and me and everyone -- are being invited to go to work on the document and through our blood, toil, tears, and sweat, help the BONC to get it into something a little more presentable. Right now the document is like an entrant in one of those ugly dog competitions, and we're supposed to braid and comb it so it looks like Rin Tin Tin.
My recommendation, the first of two
Why should we do your job? The City Attorney's staff and DONE workers get paid to do this sort of thing. I don't. If you folks at DONE want to develop a policy, you should take this draft back and don't waste our time again until you have a plan that is clear and coherent while also, at the same time, avoids violating my right to freedom of expression including the right to speak and the right to publish.
My recommendation, the second of two
DONE could write a one page reminder that neighborhood councils are bound by the Brown Act and, in addition, should avoid breaking the law in their publication activities, just as they should avoid breaking the law in everything else. This includes not stealing material (copyright or trademark theft), not committing libel or slander, and not printing people's personal details without their permission.
The action part of the above paragraph is 54 words.
And lastly, we'll add 23 more words that go directly to website security:
"Read the city's InformationTechnology (IT) office's advice on website security and a few simple procedures we have developed for dealing with passwords."
And then we'd be done.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])