18 Oct 2011
- Written by Bob Gelfand
WARNING - All neighborhood council participants should be concerned about a new proposal coming out of the Department of Neighborhood Empowerment. If enacted, it would give a small set of people arbitrary authority to abolish entire neighborhood council boards or to kick lawfully elected individuals off of neighborhood councils. These latter day Tsars might once in a while give us a break and merely sentence us to mandatory training.
This isn't some fever dream of mine. It's part of the printed outline of a new system that is likely to be proposed by DONE in the near future.
The proposal in question is being developed by DONE ostensibly for dealing with complaints lodged against neighborhood councils by members of the public. The resulting system would be known as the "grievance process." The new Tsars would actually be called a grievance panel, and they would be empowered to hear complaints against neighborhood councils, to decide on the merits of those complaints, and to propose "remedies" for whatever violations they found.
Apparently, there are a few people who have gripes against neighborhood councils, and write letters of protest to DONE. They seem to imagine that DONE has power over neighborhood councils and will right wrongs and punish the guilty. They are disappointed when they learn the truth, that DONE does not actually have such power. It is frustration over this fact that has led to the current flurry to create a system that does.
In its current version, the proposal coming out of DONE's grievance working group includes a long list of potential punishments for erring neighborhood councils. There seems to be little concern that many and perhaps most complaints are without merit, that the current proposal is full of logical and procedural holes, and that it goes against the feelings of many neighborhood council participants.
How did we get to this point?
The road is paved with good intentions. It began with the election of Paul Krekorian to the City Council and his appointment as chair of the Education and Neighborhoods Committee. Unlike some of his predecessors on the E&N committee, Krekorian showed a serious interest in hearing from neighborhood council participants. He hosted large town hall meetings, collected input from hundreds of participants, and has generally acted as if he is seriously interested in the system and its people.
Something seems to have gotten a little off track though, as evidenced by motions Krekorian recently introduced before the City Council and which the Council routinely passed. Those motions instruct city agencies to report back to the City Council with fixes for perceived problems in finances, training, and grievances.
We should understand that some of the Krekorian motions are completely reasonable. For example, the idea of developing a uniform system for dealing with finances is not only a good idea, it has gained widespread acceptance among neighborhood council participants.
The idea that we need to create a grievance system is less clear.
The argument in favor of the idea is fairly simple. When our neighborhood council system was in its infancy (roughly 2001-2), the city required all newly formed neighborhood councils to create a process for hearing grievances and to include that process as part of our bylaws. They gave no explanation; it was just one more hoop to jump through at the time. The requirement didn't even demand that we actually solve all complaints, just that we hear them. Most of us dutifully complied and then forgot about the issue entirely, as most of us don't get a lot of complaints. Those we get, we deal with as part of our routine operations.
Moreover, the City Attorney long ago published a finding that neighborhood councils are subject to California's open meeting law (also referred to as the Brown Act), which obviated the need for a formal system of hearing complaints.
Under the Brown Act, members of the public can come to any neighborhood council board meeting and speak on their concerns during the public comment period. Since it is already a requirement under state law that we hear from the public, we don't need to have a local rule that requires us to do so.
Obviously this is not what proponents of a "grievance system" are looking for. It's not enough that an elected governing board hear complaints. The complaining parties want something done about their grievances. This leads to the proposal that there be some system or authority that is above that of the neighborhood councils themselves. Such an authority would have power to take action against neighborhood council boards, to undo board votes that are somehow compromised, and to punish wrongdoers.
There is a certain point to this desire. Experience shows us that some neighborhood councils do break the rules, and some commit offenses that we could reasonably categorize as worthy of filing a grievance over.
The question is, of course, what to do about such offenses. For example, what is the proper remedy for dealing with an offense against the Brown Act, that is to say, the offense that takes place if a neighborhood council committee holds a meeting (even over email) and makes a decision without providing for full public input? What to do if the president of a neighborhood council acts like a dictator, abusing board members or the public?
Some of my friends and colleagues insist that there are a lot of such problems in the system and that only a new authority is capable of dealing with them. In their view, there needs to be an authority which overrides the neighborhood council itself, has powers of coercion, the ability to punish, and when necessary, the power to abolish.
I must respectfully disagree. This whole concept of a system with extraordinary powers, capable of nullifying the acts of lawfully elected neighborhood council boards, ought by rights to be rejected on its face. We already have a system for dealing with difficult board members. It is called an election. In a democratic system, that is the way we deal with political questions, including the question of whether or not we retain or replace an elected official whose judgment we question.
I recognize that this can be a difficult question on which reasonable people may disagree, but there are two additional issues which push the balance of logic strongly against the coercive approach.
The first of these issues is straightforward. In creating the grievance system, the city would be creating what is, in effect, a judiciary, even if it's called something else. A grievance panel would have all the judicial duties of collecting evidence, hearing testimony, and reaching decisions on facts and laws. Add to these the power to hand down sentences.
The problem with the current proposal is that it entirely fails to deal with the requirements that we as a nation ordinarily place on judicial bodies. There have to be safeguards for those who are accused.
There have to be rules allowing the accused to present a defense, which includes the right to cross examine the accusers. There have to be rules that strictly define what accusations can be made, and what sort of evidence is required to convict. The term we use for this set of requirements is due process. As of its most recent edition, the grievance proposal fails to even consider due process considerations.
In addition, our legal system relies on a system of legal education that generally sets the bar pretty high for the appointment of judges. The current DONE proposal calls for the members of grievance panels to be appointed by neighborhood council boards. This is hardly comforting when one considers the range of aptitudes we are likely to encounter in such panels.
The next issue may at first appear a little academic, but it is actually the practical and philosophical crux of the whole debate. The idea of a higher authority that has power over my neighborhood council, but is not elected, is a violation of the basic concept underlying the neighborhood council system. We recognized in our earliest organizational efforts that neighborhood councils were to be political bodies that are as independent as possible from the rest of city government. That's because our basic function is to tell elected officials when they are wrong.
The Charter language and enabling legislation make clear that our job is to advise the members of the City Council and the mayor. When we all agree on something, it's not a problem, but when we have to tell our own City Council representative that we strongly disagree with him, that's where our independence is necessary.
Publicly disagreeing with our City Council is a recipe for retaliation, as we know very well. Giving the power structure additional tools of retaliation is not desirable if we wish to hold onto our political independence.
The counterargument to this position is that there are neighborhood councils that are so dysfunctional that they are incapable of doing the kind of political work I have been talking about. For whatever reason, they either don't hold meetings, or their meetings are chaotic, or their own members constantly accuse them of breaking rules. The proposed grievance system is supposed to be useful in bringing such organizations into a more healthy state.
It is a classic argument. Shall we create a system that limits the freedoms of all in order to fix those few who really need fixing? Would any such system of coercion and punishment work anyway? Even if we could make a case that a coercive system would bring back a few dysfunctional councils at the cost of some freedom for the rest of us, would any of us want to make a case that this is the moral and ethical thing to do? I certainly would not.
No, this is social engineering at its worst. It has all the hopeful aspects of social engineering without the scientific merit of a carefully thought plan.
Is there a better alternative? I believe that there are at least two possibilities.
First of all, we could do nothing, and simply get on with our neighborhood council activities without creating the new grievance system. There are better ways to fix things anyway. We have several new approaches we are trying right now, including peer mentoring and voluntary training in parliamentary procedure. The latter process has been tested and has been shown by experience to improve things even in neighborhood councils that previously were all but moribund. The former has not even been given a chance yet.
The other possibility is offered to those who feel that they absolutely, positively have to have some sort of grievance system. My suggestion to them is that they agree to create the grievance panels, but leave out all the coercion.
The grievance panels would be empowered to investigate complaints by holding hearings and collecting evidence, and would be further empowered to reach findings which they would write up and distribute. Their findings would be part of the public record and would carry the moral and ethical power they deserve. Findings could be used in future governing board elections by opposition candidates.
This approach combines moral persuasion with the democratic elective process. It is similar to a proposal that was made by the Bylaws Task Force and which was largely ignored at the time.
Tags: Neighborhood Councils, grievances, grievance process, Paul Krekorian, DONE, Department of Neighborhood Empowerment, E&N Committee, City Council
Vol 9 Issue 83
Pub: Oct 18, 2011