Sun, Jun

DONE and BONC: Follow the Law!


GELFAND’S WORLD - I'm going to start this a little differently than usual. I'm simply going to quote the law. 

The Los Angeles Municipal Code section 22.810 is the ordinance that tells the city's Department of Neighborhood empowerment (DONE) how it can take away a neighborhood council's right to carry out that council's lawful activities. The ordinance uses the strange sounding term "exhaustive efforts" to describe the process by which a neighborhood council is rendered inactive, in the sense of "place the neighborhood council in exhaustive efforts." 

In reality, exhaustive efforts is a process whereby DONE forbids the neighborhood council's lawfully elected board from scheduling or running its own meetings and similarly forbids the council's subcommittees from holding their own meetings. It's more akin to taking a neighborhood council into receivership. 

DONE is referred to in the following legal language as "the Department." 

Here is the relevant wording: 

 (e)   Decertification of a Neighborhood Council/ Declaration of a Board Vacancy by the Board of Neighborhood Commissioners. 

  (1)   Department Action. On its own initiative, or after a recommendation by Regional Grievance Panel, the Department may seek the involuntary decertification of a Neighborhood Council or may seek a declaration of vacancy for one or more Neighborhood Council board seats.  Immediately upon the issuance of the Department's petition for decertification of a Neighborhood Council Board or declaration of vacancy in one or more board seats, the Department immediately shall freeze and suspend the access to and use of any City funds previously available to the Neighborhood Council or board members named in the petition. 

  (2)   Opportunity to Cure/Exhaustive Efforts. Prior to initiating the process to decertify a Neighborhood Council or to vacate one of more Neighborhood Council board seats, the Department first shall provide notice to the Neighborhood Council of the applicable law, rule or regulation upon which the decertification or vacancy declaration will be founded. After giving notice to the Neighborhood Council Board, the Department may give the Neighborhood Council Board an opportunity to come into compliance with the applicable law, rule or regulation. The Department also may exercise "exhaustive efforts" by taking over all powers vested in the Neighborhood Council Board in an effort to bring the Neighborhood Council, Neighborhood Council Board or Board members into compliance with the law, rule or regulation. If, despite the opportunity to cure and/or the Department's exhaustive efforts, compliance is not achieved, then the Department may initiate the process described in Subdivision (e)(3) below." 

Let's repeat the critical element in these rules: 

 ". . . the Department first shall provide notice to the Neighborhood Council of the applicable law, rule or regulation upon which the decertification or vacancy declaration will be founded" 

So, the law requires that the council must have done something bad in order to take away its rights. It's not just something that is bad in the minds of the bureaucrats in some city agency, but an actual violation of a law or rule or regulation. 

Not only that but DONE has to tell you what you are accused of, and it has to be specific. This isn't a lot different from the way the civil and criminal courts operate in the rest of our society. 

The procedure is, by law, an attempt to provide a remedy for when a neighborhood council is so out of compliance with the city's rules and regulations that something serious has to be done. Let's say that a neighborhood council board is misappropriating funds, or is engaging in frankly violent or threatening behavior, or is otherwise violating state or federal laws. It would make sense for the city of Los Angeles to provide for some way of ending such problems. 

But there is no suggestion in the City Charter that I can find that justifies DONE or any other city agency interfering with a neighborhood council just because the DONE staff or its General Manager have taken a disliking to how a particular neighborhood council is functioning or disagrees with what some board members are saying in meetings. 

The central principle that has been forgotten by DONE and its supporters 

When DONE interferes with the actions of a lawfully elected neighborhood council, it is simultaneously interfering with the rights of that neighborhood council district's residents. It is the voters who choose who is to be seated on a neighborhood council board and, therefore, what the overall aims and practices of that neighborhood council are to be. That principle is implicit in the city's Charter, which defends the ability of neighborhood councils to choose their own boards. The city's enabling ordinance further suggests that neighborhood councils are to be as independent as possible. 

It is clear that DONE and the Board of Neighborhood Commissioners are displeased with the way a lot of neighborhood councils comport themselves, but this should be an irrelevancy. It is our voters and, through the actions of those voters, our boards, that neighborhood councils should choose how they are to function, what their immediate and long-term agendas are to be, and how they shall represent themselves to our elected officials. 

An example of a city agency overreacting 

Let's imagine a neighborhood council board bickers among itself. Maybe the board can't agree on something like how it is going to find new office space now that its old space has become unavailable. 

There is a council with the name P.I.C.O. neighborhood council. That acronym stands for People Involved in Community Organizing, but it happens to have Pico Blvd running right down the middle. Somebody was clever in the naming, but we don't have to worry too much about that. What we do have to worry about is DONE putting P.I.C.O in exhaustive efforts, and seemingly without specifying any law, rule, or regulation it has violated. 

DONE pulls the plug on the P.I.C.O. neighborhood council 

This is a pretty substantial accusation I'm making here, suggesting that DONE has behaved contrary to the very law that defines its own existence. To justify that assertion, I'm going to include the relevant paragraphs from the letter that places P.I.C.O. in exhaustive efforts. Perhaps some discerning legal mind or a member of the DONE staff would like to write into the comments section and explain how the letter has defined a violation of law or rule or regulation. 

But I can find no such law, rule, or regulation described in the DONE letter. 

Here is the relevant wording:

"Events of the PICO Neighborhood Council have caused concern about the Council’s ability to meet the expected goals. Recent board dynamics and related issues have contributed to the resignation of five board members, all which formed the executive committee. It is determined that since the April 2021 seating and resignation of the newly elected Board, the PICO Neighborhood Council is no longer able to meet and achieve the goals and objectives of the Plan. The Neighborhood Council’s governance condition hinders its ability to improve the quality of life for its stakeholders. 

"In order to assist the PICO Neighborhood Council address the underlying issues that are preventing the Board from fulfilling its responsibilities and return to a successful and functional neighborhood council, the Department hereby places the PICO Neighborhood Council in Exhaustive Efforts." 

Notice that there is no indication of a violation of a law or a rule or a regulation in this wording. Unless someone can show me in a convincing way that DONE has in fact given that notification somewhere -- in a public form in its official capacity -- then DONE, by placing the P.I.C.O. neighborhood council in exhaustive efforts, is itself violating the municipal code under which it is itself supposed to function. 

Another thought: 

Let me make a quick observation that the bureaucrats at DONE will most likely find incomprehensible: The neighborhood council has no legal obligation to "improve the quality of life for its stakeholders." That would be a lovely thing if it were to happen, but the whole point of the neighborhood council system, with its 99 different varieties of organizational structure and bylaws, is for the local folks to decide among themselves how they wish to attempt to make their community's lives better. It's not up to DONE to redirect or reorganize or re-anything for any individual neighborhood council. DONE staffers can look down their noses at what they think they see going on, but they don't have any right, absent a true violation of law, rule, or regulation, to get involved in the internal workings of a neighborhood council. 

More to the point, DONE doesn't have all that wonderful a record in teaching democracy to the neighborhood councils it doesn't like. I once observed how DONE handled the exhaustive efforts it imposed on the Central San Pedro Neighborhood Council. What I saw was a travesty and a scandal. I even wrote a CityWatch piece where I pointed out that the DONE representative who was supposed to be teaching something about Roberts Rules and democratic process was himself guilty of the worst sort of ignorance and bad practice. I was actually induced to ask him directly after the meeting, "Have you ever led a meeting before?" 

It turned out that I wasn't the only experienced board member with that question. 

No, there is little reason to believe that DONE has the ability to lead a confused neighborhood council into being functional. 

Some specifics of our own 

Basically, the P.I.C.O. council has fallen into internal disagreement, to such an extent that all of its officers have resigned. That by itself doesn't seem to invalidate the council -- it would still have enough active board members to form a quorum, and it should presumably be able to appoint replacement officers and continue with its work. 

What is really going on? 

What I suspect is really going on here is that the sum total of all the ordinances, policies, and Charter language are inadequate to dealing with an all too human problem. Some people don't get along very well, and some people don't agree with each other. Sometimes the disagreements rise to the level where some group of people choose to resign from a board or even resign their positions as officers. Our response ought to be, "So what?" 

Disagreements happen, people quit, and those people can be replaced. Actually, if you look at the P.I.C.O. bylaws, there are procedures available to replace people who have resigned. The bylaws aren't absolutely perfect either in predicting an episode such as we have recently seen, nor in repairing the damage, but they are good enough. The board should be able to meet for the purpose of replacing its missing officers, just as it would officially appoint officers at the beginning of each two year term. Similarly, if board members don't agree with each other and can't pass motions by majority vote, so what? The voters will eventually replace board members who are not carrying their weight. Board members who are really uninterested will eventually resign or become ineligible by not showing up. 

But there is no law or rule that says a neighborhood council has to pass certain kinds of motions or resolutions just because the bureaucrats at DONE have their own vision of what a neighborhood council ought to be. Believe me, some of us don't want to be your vision of the neighborhood council. 

And the guiding principle remains and should always remain that the rights of the voting public to make their choices through the democratic process should not be infringed by the improvident actions of an appointed bureaucracy. 

Addendum: How that strange term "exhaustive efforts" came to be. 

Skip this section if you like. It is not germane to the current discussion, but may satisfy your curiosity about that strange term "exhaustive efforts." 

When the neighborhood council system was originally formed, the Board of Neighborhood Commissioners was tasked with considering the certification of all the newly forming neighborhood councils. The BONC was also tasked with dealing with the rare times when a certified neighborhood council was entirely failing to function. 

The examples were indeed rare. One council up in the valley got itself certified but then more or less stopped functioning as a council. It failed to hold meetings for a very long time. It stopped holding elections. It had effectively ceased to exist, and eventually the BONC made the effort of decertifying it. 

On another occasion, the Venice Neighborhood Council had such internal divisions that it at one point did not have enough board members to have a quorum for a board meeting. Without a quorum it could not hold a meeting or schedule an election and it too was eventually decertified after a long process of preparing for the immediate creation of a new Venice council. 

The law gives BONC the power to certify and decertify a neighborhood council for cause. In addition, the law gives DONE the power to investigate a neighborhood council and, for cause, to bring a motion to BONC to decertify that council. The rules did put one caveat in the decertification procedure: Before a council would be decertified, the DONE was required to engage in "exhaustive efforts" to heal the wounds or otherwise fix the problems that were disabling the council. 

My view at the time (this was in the early years of the 2000s) was that DONE was at least supposed to inform the board members that their council was in danger of being decertified. This might be through calling every board member on the telephone and explaining that if you don't have a meeting within 3 months, you are going to get decertified. 

Exhaustive efforts didn't have to mean anything more than that, because the main problems involved failure to hold meetings and the failure to hold an election. The term "exhaustive" could be as simple as informing every board member that there would be consequences to their inactions. No big deal, and nothing like the current variation in which DONE tries to engage in something at least analogous to southeast Asian reeducation camps. Take a look at DONE's plan of work for the P.I.C.O. neighborhood council and you will see what I mean. 

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


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