CommentsGELFAND’S WORLD--People often divide themselves into two broadly defined camps, the first of which insists on obedience to all rules, while the other defines itself by its anti-authoritarianism. May I suggest that each faction is asking the wrong question.
We should consider the legal structure -- and each particular rule or statute -- in terms of whether or not it supports and strengthens equality under the law. By taking this approach, we can craft and then modify our rules in a way that provides the greatest good to the greatest number. We don't always get to the appropriate goal. I offer a couple of examples which you may find amusing, one being the recent scuffle over home owners associations, the other being our city's neighborhood councils.
Rules and HOAs
It's remarkable how a lot of otherwise calm people can become extraordinarily angry about their Homeowners Associations. HOA administrators seem to be the grownup equivalent of a boarding school headmaster, except that this headmaster takes authoritarianism to a higher level. I can remember listening to a long diatribe from one homeowner on how a particular HOA down in San Diego was enforcing the rules on keeping your lawn green while during the same period, the local government was enforcing rules against wasting water during the severe, chronic drought. The HOA understood the conflict, but wasn't willing to compromise even a little.
Another story: After a baby was born, the grandmother was willing to come down and help the (rather exhausted) mother. The only problem was that grandma's car would have to be parked either on the street or on the driveway since there wasn't extra room in the garage. You would think that this would be a normal event, of no consequence in a world where children are born and grandparents come to help. But this HOA had rules against parking on the street or even in a driveway. A special permit had to be procured and a fee had to be paid in order for grandma's car to remain more than a few hours. You might joke that this HOA had defined itself as opposed to motherhood. Whether or not it also opposed apple pie or the flag remains unanswered at this time. Grandma had to cover the $60 fee.
I bring up the subject of HOAs because they are suddenly in the news with regard to freedom of speech. In this case, it's the freedom of property owning HOA members to run for positions on their HOA boards without being hindered by the prevailing power structure.
The story is described in an LA Times column titled Freedom of Speech Doesn't End Once You Enter a Homeowner Association. The story involves a legal question which is then answered by attorneys Zachary Levine and Donie Vanitzian. Part of the question reads as follows:
"During association elections, the board makes ample use of newsletters, meetings and minutes, association media, the recreation room and other channels to get across its point of view. This propaganda is distributed at the association’s expense, but when owners ask for “equal access” we don’t get it. For example, to use the clubhouse for a meeting we are told that we must purchase insurance, pay a deposit and a nonrefundable cleanup fee in advance — and then sign a waiver."
There are a couple of questions here. The first is whether anyone would consider this kind of conduct to be defensible. I suspect that most of us would find it unacceptable were we in that situation. The inherently uneven playing field that the officers of the HOA have constructed goes against our cultural concept of legal equality. The management is (allegedly) using facilities owned by everyone for their own ends.
The other question is whether an HOA, being a private organization of private property owners, should be subject to regulation by the state or the county? In other words, is it anybody's business but the HOA's, and should the rest of us just butt out? This is a more complicated question in law, but there is an answer. The state has the ability to decide that certain contractual arrangements are so negative as to be contrary to public policy. The much cited example is the rule that you can't contract to sell yourself into slavery, and you can't enforce a contract that requires somebody to violate the law. In the case of HOA officers who misuse their authority, it appears that the state has the power to create controls.
As discussed in the Times article cited above, the issue actually got hot enough to inspire a bill in the state legislature. It would require any HOA to provide equal opportunity to association members who want to participate in elections or otherwise make use of common facilities. The proposed legislation sponsored by state senator Bob Wieckowski would also guarantee the right to peacefully assemble. In other words, the same rights that all citizens have to hold political meetings and to march on City Hall are held by HOA members within the confines of their communal property.
In passing, we might note that the state legislature can't take the same argument and apply it to your family dinner table. If you want to forbid the kids to play rock music in your own home, the state senate isn't going to get involved. Notice that the overall philosophical principle regarding a fair and equal application of the law holds in both cases. We merely make a distinction between parental rights within the confines of one's home vs. the imposition of an inherently unethical limitation on adults dealing with each other in the private sector.
As to neighborhood councils, the question of public participation rights has been covered (directly and indirectly) in recent CityWatch columns by Greg Nelson and James Preston Allen. Nelson points out that (much as he dislikes it) our neighborhood councils are subject to the state's open meeting rules, colloquially referred to as the Brown Act. This means that public comment is a part of each meeting.
Allen describes a meeting of a neighborhood council (disclosure: I'm on that council's board) in which a group of people attempted to disrupt the proceedings and were ejected. I would summarize the conclusions of these two articles as follows: Under the law and our generally prevailing rules, everyone is entitled to a turn to speak; you just have to wait for your turn.
The Brown Act provides the right of public comment. A section of the state's penal code balances Brown Act rights with the prohibition against disrupting a meeting intentionally. Together, these legal principles provide for greater equality under the law than we would have were there either no public comment or if there were the ability of organized groups to take over meetings by force or noise.
Addendum: He still hasn't figured out he's the president
In a story covered on television and all over the news, Donald Trump claimed that if Obamacare fails, the people will blame the Democrats.
"I think we're probably in that position where we'll let Obamacare fail," Trump said at the White House. "We're not going to own it. I'm not going to own it. I can tell you, the Republicans are not going to own it."
Sorry Donald. When you are president, you can't pass the buck and get away with it. If you let Obamacare fail by starving it of funding -- and that is exactly what you have threatened to do -- then the result belongs to you. That's what it means to be president. You do own it.
The Trump remark sounds like something that a saner president might say to his aides during a closed meeting, possibly suggesting it as a trial balloon. Experienced aides would then tell the president that whatever happens in the country or the rest of the world, you do own it. They might even put it this way: If the Republicans managed to lay blame for the Benghazi killings on Hillary Clinton in spite of her (very) indirect relationship to the event, then Trump is going to be blamed for doing what he has been openly promising to do.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])
-cw
