Sun, Oct

NC's: Be Careful What You Think or Say, You Could Be Punished

GELFAND’S WORLD-Somehow, a few people involved in Los Angeles neighborhood councils want to turn their personal disagreements into the equivalent of a crime.

They want people who insult them to be punished. The fact that the First Amendment is supposed to protect our freedom of speech is beside the point to them. And punishment of the offenders would be by suspension from elected seats on neighborhood council boards. 

The city agencies that nominally have some control over the system are trying to help create just such a system for punishing disagreements and personal animosities. 

That's a rather harsh way of summarizing things but based on statements made in a public meeting on Saturday, it's pretty much the reality. 

As I mentioned in a previous article, the  city's Department of Neighborhood Empowerment (DONE), working with the Board of Neighborhood Commissioners (BONC), has been trying to create a system in which members of neighborhood council boards can be punished or removed based on anonymous allegations. DONE would know the identity of the complaining person, but the rest of us wouldn't. 

There has been an outcry among neighborhood council participants over the policy proposal. In a more recent article, I mentioned a resolution opposing the proposed policy which has now been offered to our city's neighborhood councils. 

There have been, at last count, 11 neighborhood councils which have endorsed this resolution in opposition to DONE's proposal. Down here in the harbor area, several of the councils have adopted the motion by unanimous vote. That's a lot of people, and a resounding declaration of opposition. 

There is a wider context which is even more troubling. 

The City of Los Angeles is trying to create a policy for its own employees on what it calls Equity and Diversity. The proposed policy (currently in draft) would be binding on its employees, who will be required to take training so they can learn about their implicit biases. Then, the city will take action against employees who act out on their bias. 

This sounds a lot like trying to turn thoughts into crimes, much like a George Orwell novel. 

In response to the objections, DONE and BONC offered to create 4 online meetings which would allow us neighborhood council participants to give feedback. The first of these meetings was on Saturday. 

It was all painfully predictable. 

Saturday's discussion began with about an hour of presentations and speeches by BONC members Eli Lipmen, Len Shafer, (and later Ray Regalado) and by DONE staff members and the DONE General Manager. It was propaganda at its purest. The DONE staff and the BONC commissioners did their best to convince us that the new policy was not only necessary, it would also be legal under city statutes and the City Charter. They did this by putting up one screen after another quoting some element of the municipal code or the Charter. 

There was no opportunity for rival debate or interruption during this session. It was purely a public show. 

There followed another hour in which the public were invited to comment, but even then, the people running the meeting attempted to focus and limit the discussion to questions of their choosing. 

In addition, the choice of who got to speak seemed to this participant to be rather slanted, in that a few people who wanted to speak in favor of the proposed policy got to speak repeatedly, but yours truly was limited in the number of times I was allowed to comment. DONE staffer Mike Fong did not distinguish himself in this regard. 

When the terms of the debate are controlled by those who are adamantly on one side, and those who are opposed are limited in their chance to speak, the discussion is, to say the least, warped. 

DONE certainly got the chance to present its side, but it was, overall, an unconvincing argument. Apparently, we are supposed to believe that the department will act in good faith and do its due diligence in considering complaints. But as many neighborhood council participants and critics have pointed out, the proposal does not include any specific due process rights on the part of the accused. As others have pointed out, there is plenty of reason to distrust DONE's honesty or legal competence. 

For specific examples of that untrustworthiness, see the Appendix at the bottom of this page. 

Let's summarize the argument set forth by the BONC commissioners and by the DONE staff. 

In brief, DONE claims that they have had numerous complaints over the years where neighborhood council participants said that they were being bullied or threatened or otherwise made to feel uncomfortable. I wish I could offer you specific examples, but none were forthcoming. I even asked for specifics in the Q/A column but received nothing specific by way of answer. 

We were left with a vaguely made claim that some neighborhood council board members bully other board members or members of the public. And this, by itself, was supposed to be reason enough to enact the extreme measures that have been proposed. 

There was a side discussion which involved the discussion of acts of violence and credible threats of violence. I spoke on this topic myself. An act of violence by any person against another member of the public is a police matter and should be treated as such. Actual crimes should be prosecuted by the proper authorities. The City Attorney has the ability to file a request for a restraining order against someone who engages in such activities. But of course, the City Attorney won't get very far in asking a judge to grant a restraining order based only on an anonymous allegation. 

But it should be possible upon an acceptable level of proof (say in a court of law, in establishing a restraining order) that the City of Los Angeles could then remove someone from a neighborhood council board. Perhaps such an action could even be part of the pleadings for the restraining order. 

Note that City Attorneys and Judges are trained legal professionals. I'm not aware of any attempt by DONE to demonstrate that even one of its staffers has legal knowledge at the level to justify acting as a judge against a neighborhood council board member. Actually, what I've seen goes quite to the contrary. I've seen some remarkable ignorance, even in something as simple as elementary parliamentary procedure. 

The justification of governmental bullying 

Curiously, a lot of the DONE presentation was simply a listing of various statutes and ordinances. It was intended to prove that the city has the legal right to impose its will upon neighborhood council boards and participants. 

None of the words they presented were fabricated, and much of the presentation was pertinent, but there were things that were missing. 

In science, we use the term "cherry picking" to refer to a process by which some author tries to make a point by leaving out anything and everything that goes contrary to the desired point. You see this technique a lot in arguments by the anti-vaccine people, and I think I saw it in the DONE presentation. There is plenty in section 9 of the city Charter that seems to guarantee the right to political freedom by neighborhood councils. We didn't hear a lot about that from the DONE presenters. 

A deeper question begins to arise out of the discussion, and DONE fails to notice 

As the afternoon went along, I began to understand the crux of the matter, which I would like to discuss at this point. 

To begin, I don't think that there is anybody who would defend actual acts of violence by board members or by members of the public. I don't think that there are a lot of people who would argue against the city taking action to prevent such people from returning to neighborhood council meetings. It's a fundamental element of our criminal law. 

At the same time, there seems to be a lack of agreement what power DONE ought to have when it comes to simple speech. Suppose I were to point out that somebody's argument is stupid. Is that an actionable offense that should get me suspended from participation in the Coastal San Pedro Neighborhood Council board? I don't think it is, but it was clear listening to some of the speakers at Saturday's meeting that they would want me suspended. They made their point clear in arguing that all board members should be held to the Code of Conduct that BONC has written (and now proposes to impose against all board members all over the city). 

Suppose someone were to accuse me or one of my colleagues of discriminatory speech or practice? Would that subject her to the same kind of suspension (since it is a direct attack on our character to make such a suggestion) or would it instead result in my suspension on the simple basis of allegation? 

Or suppose someone were to raise an eyebrow (even intentionally) implying disagreement with some particularly sensitive member of the board or the public. Would this be a "microaggression" under the city's proposed rules on diversity and therefore subject to suspension from a neighborhood council board for 90 days? 

I'm not joking about this. One time I was sitting in the audience at a neighborhood council meeting and one of the board members looked up at me and said, "Don't roll your eyes at me, Bob." Which one of us would be judged guilty of a microaggression (or even an aggression) under the city's proposed diversity rules? 

So here is the crux that I spoke of. If we are to hold to traditional freedoms including freedom of speech and freedom of assembly, then it shouldn't be enough to insult somebody or to mock their logic to reach the threshold for punishment. In truth, we have to draw a careful line when we speak about bullying, because sometimes what one person thinks of as bullying is simply a difference of opinion. Tone of voice gets turned into a crime under the proposed policy. 

Yes, the city should step in against violence and against credible threats of violence. Calling somebody names on Facebook should be outside of the city's authority. 

I repeatedly tried to ask the DONE staffers to be specific about what should be actionable conduct. I did not get an answer. If we wish to write and enforce laws against crimes, we need to be specific in defining those crimes. What DONE and BONC are currently talking about are currently undefined activities that would, at some time in the indefinite future, be made into the equivalent of crimes (because board members will be punished by governmental action). 

The new rules invented by the current General Manager, or some future GM will be what this country's framers referred to as ex post facto laws. It's ex post facto because only when DONE and its General Manager get through deciding whether something ought to be an actionable offense will it be treated that way. 

How bad is the proposed policy? 

If I were to say in a board meeting that the DONE staffers I heard Saturday were making stupid arguments, would that be classified as bullying? If I were to make exactly the same comment in these pages, would it be considered actionable against me as an elected neighborhood council board member? 

How about we create a test case here and now. DONE staffer Mike Fong, in my opinion, discriminated against me when I tried to get a chance to speak for a second time at Saturday's meeting. Arguments made by other DONE staffers were, in my opinion, stupid or ill formed. I am skeptical about the motives of DONE staffers in regard to this whole question. 

I would expect that under the proposed policy, DONE would find my remarks in the above paragraph to be bullying. Perhaps they would use them to attempt to suspend me from participating in my neighborhood council board. If I (or somebody else) were to make like remarks towards a fellow board member or a member of the public, DONE would, under the logic adopted by several of Saturday's speakers, be obligated to punish us for violating some concept of forbidden speech. 

We've seen lots of examples of exactly this policy all over the world. Somebody is in prison for insulting the dictator or insulting the state or arguing that it shouldn't be required that women wear head scarves. It hardly matters what the insult or microaggression is -- punishing people for disagreeing with our own political opinions is not an American tradition. 

During Saturday's meeting, I offered the following question: "Under the proposed policy, is there any room in the city's neighborhood council system for supporters of Donald Trump?" There is a pretty good case to be made that somebody would find fault with an outspoken Trump supporter and would file a complaint. 

Would Larry Elder himself be suspended from a neighborhood council board for one of his pronouncements made over a Los Angeles radio station? 

The fact that we don't actually know the answers to these questions shows just how stupid and un-American the proposed policies are. 

I'd like to finish by quoting a fellow CityWatch author. Jack Humphreville pointed out (referring to DONE General Manager Raquel Beltran), " My basic issue is that I do not trust Raquel, and for that matter, BONC. This whole process confirms my belief." In a later conversation, Jack pointed out that it's hard to do business with people you don't trust.


Let's consider a real-world example that happened not long ago right down here in San Pedro. The Central San Pedro Neighborhood Council (CeSPNC) had a president who was, to put it politely, a little less than competent in doing her job. She also got into some personality skirmishes with other board members. The board decided that it might like to replace her, so a motion was placed on their next board agenda to remove the president. 

It should have been a simple question. Either there would be a quorum present or there would not be. If a quorum were present, then it would be a simple majority vote as to whether the president would be removed or not. This is what their bylaws allowed, and it is also the essence of democracy within an elected public board. 

But this is also where a legal conflict arose, and, as you shall see, that legal question is also a part of the current debate. 

On the day of that board meeting, members of the CeSPNC board got a message from DONE. It was signed by their new General Manager, Raquel Beltran. At the time, I referred to the message as an extortion letter. It explained to the board that a complaint had been made against some subset of them, and the board was advised not to take up the question of removing their president. Now it's of course OK for DONE to offer its advice, but this time they took it further. There was a thinly veiled threat that the whole neighborhood council could be taken over by DONE if they were to take up the removal question. The term that DONE uses for such a takeover is Exhaustive Efforts, a phrase that goes back to some original language from the early part of the 2000s. 

One more thing about that threat to put CeSPNC into Exhaustive Efforts: The municipal code explicitly requires DONE to explain what violation of law or bylaws was committed by that neighborhood council. 

Curiously, that same neighborhood council had been placed in Exhaustive Efforts a couple of years earlier. But when DONE was asked to explain the reason for its takeover (which went on, as I recall, some 4 months), they were not forthcoming with an answer. Specifically, a high ranking DONE employee by the name of Mike Fong used to attend meetings of the Los Angeles Neighborhood Council Coalition (Lancc). I asked him repeatedly to tell us the specific violation of law or bylaws committed by CeSPNC that justified their being placed into Exhaustive Efforts, and Fong never answered that question.

So, we have a newer General Manager and a long-term high ranking DONE staff member who are willing to misuse and abuse the Exhaustive Efforts procedure -- one as a staff member during a time when it was actually applied to CeSPNC, and the other a new General Manager who used the threat of Exhaustive Efforts to force her will upon an elected board. These people have not shown that they are to be trusted. 

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