GELFAND’S WORLD - The Los Angeles neighborhood council system consists of 99 separate councils which are created by act of the City Charter to advise the government and oversee its actions.
From the outset, the councils were supposed to be designed to be as independent as possible, and that was up to and including designing their own systems for electing their boards.
The original Charter language included a Board of Neighborhood Commissioners (BONC) which would have two distinct powers. The first was to confirm each new neighborhood council's existence (or in rare occasions to cancel a non-functioning neighborhood council). The second power is a somewhat indistinct right to create overall policy for the system as a whole. In keeping with city policy, the BONC is also required to agree to contracts above a certain amount between the city and its vendors.
In this sense, the BONC is not terribly different from any other city commission that might oversee sanitation or the Department of Water and Power. However there is one thing that is different. The function of neighborhood councils is to be critical of government actions and the makeup of neighborhood council boards is determined by vote of residents within each council's boundaries.
In other words, neighborhood council board members are elected public officials. They are not city employees -- they don't get paid a cent, don't have employment contracts, and don't have any sort of organized bargaining. The ability of a city agency or board to punish or banish an unruly neighborhood council board member has to be different as a matter of definition. The Department of Sanitation does not have the power to punish or remove the member of the City Council who chairs the committee that oversees sanitation. There is a difference between being elected and being hired.
Yet the BONC and other city organizations have been trying over the course of several years to find ways to bring neighborhood council board members under some sort of control. Why they would think that this is necessary is another major question which we will want to confront. But first, there is the Department of Neighborhood Empowerment (DONE) to consider. DONE was created by the Charter at the same time the BONC was. It is supposed to be in charge of day to day operations of the neighborhood council system. In practice, in spite of BONC's official standing, DONE does a lot of policy mongering just because it is in the nature of running any organization to figure out how to do so. That in and of itself is policy.
Over the past few years, the BONC and the DONE have asserted increasing levels of authority over neighborhood councils. Recently, we had the proposed policy for rules of conduct which included the authority of DONE to suspend a neighborhood council board member for up to 90 days. Just like the example of the sanitation department wanting to fire the City Council member I mentioned above, it's the same analogy here. Neighborhood councils as a whole should be looking at DONE and the BONC and offering criticism and advice.
In truth, we have been doing that through our Los Angeles Neighborhood Council Coalition and its committees. We have found fault with both DONE and BONC, but it doesn't seem like any of them is listening very closely.
We did see one little glimmer from one of the BONC commissioners of late. Len Shafer looked at the city's draft proposal on workplace equity and considered whether it applies (or where) to our neighborhood councils. To make this discussion easier, I have pasted in his comments in the section marked Appendix, below.
The city's equity proposal is full of definitions and vaguely stated rules about how those rules will be applied and enforced. A lot of it is fairly lawyerly in tone and word. Here's just one illustrative example:
"This Policy also prohibits employees from using any technology, communication system, or equipment, regardless of whether City-issued, personal, or otherwise, whether used online or offline, to deliver, display, store, forward, publish, circulate, or solicit material in violation of this Policy. The technology, communication systems, or equipment referenced in this subsection may include, but are not limited to , email, text, social media, internet, intranet, telephones, computers, fax machines, voicemail, radio, video, cell phones, mobile digital terminals, or other communication devices."
Note that this is merely the list of communications channels that city employees are not allowed to broadcast hate or sexual harassment on. But lawyers being lawyers, they couldn't just say so -- they felt they had to include that line that says these rules "are not limited to" just these devices. I'll leave it to you to fill in your own joke about the homing pigeons of hate.
Ignoring the fact that the people who drafted this text use legalese because that's what they know, it also means that they have drafted a measure that doesn't really fit with neighborhood council board members, despite its protestations to the contrary. In brief, we are not city employees, nor are we volunteers. When the Charter created a neighborhood council system, it made something new, something a lot more independent, because it's whole purpose is to talk back to City Hall.
Len has done a pretty good job in dissecting out a number of elements of the city's draft policy that don't seem to fit into our neighborhood council framework. He repeatedly points out that some section doesn't seem to have much application to neighborhood councils. He waffles a bit in pointing out that some of the language can be modified to fit neighborhood councils.
There are a couple of elements of the draft proposal and the BONC's approach that have raised concerns among the neighborhood council people who would have to live with the final version.
The first, remarked by Tony Wilkinson, is that we neighborhood council participants have largely been left out of the process whereby the BONC and DONE have been considering how to rule over us. Many of us feel that they should not rule over us at all, or if they feel they need to have some disciplinary authority then they need to make absolutely clear what transgressions they think they ought to punish and what the due process rights are for those of us who would be prosecuted. Notice that DONE is not a court -- civil or criminal -- and we haven't seen a lot of evidence that any one of them has any feel for justice or the protection of peoples' rights. None of this shows up in Len Shafers comments as best I can tell. It would have been among the first elements I would have demanded.
The other element that is missing is a statement of purpose, the sort you might see in the introduction to a proposed law that has been newly introduced to the state legislature. Why does the government demand such powers over neighborhood council participants? How many serious felonies have been committed by our people over the 20 years of our existence? How much public money has been stolen? How many times has somebody insulted someone else? And should this last bit be a punishable offense or free speech that continues to be protected?
Here's an old observation of mine: Most people I run into are all for freedom of speech, but there is one thing that goes beyond their tolerance. At one time, speaking out in favor of voting rights could be a punishable offense in some states. At another time, one person I knew did not accept that the American Nazi Party should be allowed to hold its march in Skokie, Illinois.
Everybody's got some sensitivities, and some of us insist on enforcing them beyond what the Bill of Rights seems to say. Here's a short piece from near the end of the draft proposal that defines something called inequitable conduct:
"Inequitable Conduct may include, but is not limited to , one or more instances of the following, depending on the context in which it occurs:
- Microaggressions (indirect, subtle or unintentional verbal or behavioral conduct that communicates hostile, derogatory, or negative attitudes toward protected categories)
- Stray remarks
- Hostilities in vocal tone and body language
- Sexual innuendo"
OK, I have a problem with that part about microaggressions. The problem with this topic is that somebody can take offense at a partial expression or a tone of voice and -- without guilt on your part -- accuse you of chronic microaggressing. How do you defend yourself against what is, in effect, a thought crime? And then there's that inclusion of "stray remarks." Isn't this the sort of thing that a judge would refer to as unconstitutionally vague? Basically, it seems to say that the city can take your job away (or my neighborhood council board seat away) for being a jerk.
Here's what Len says about the above quoted section:
"Comments: The above definitions of prohibited conduct are closely related to employment and employment opportunities. They can be tailored to NCs and NC activities but should not be considered in their present form."
I think he's got it half right. They should not be considered in their present form and they should not be recut to fit the neighborhood councils.
As I've said before, there may be actions that should be sanctioned by the city, actions which include direct violence, threats, being grabbed by someone -- the sort of thing that would be an arrestable offense if a policeman saw it happening at a shopping mall. But instead, the city and DONE and the BONC seem to want to create a system which nothing tangible will get said because nothing that is controversial or loud or angry will be allowed to be said. I think our city gives us plenty to be angry about, and I don't think we should give up our rights to be angry about it.
Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected]
This is the two-part comment by Len Shafer that (1) considers the draft proposal and (2) considers a short policy for suspending neighborhood council board members
Draft Workplace Equity Policy Comments
2.1.3 Other Individuals Covered by This Policy
Unpaid interns, fellows, and volunteers (e.g., Neighborhood Council board members, and unpaid commissioners) are protected from Harassment, Sexual Harassment, Hazing, Bullying, and Inequitable Conduct, as defined in this Policy.
Comment: NC members are included as volunteers, but they don’t fully fit the definition. The city can refuse the offer of a normal volunteer, but I don’t know of any way it can refuse to allow a someone who fits the stakeholder definition from serving on an NC board.
Also, from whom are NC members protected?
However, we can use these categories of behavior when drafting a policy.
2.2 When and Where This Policy Applies
This Policy prohibits discrimination, harassment, retaliation, bullying, hazing, and other
inappropriate conduct in the workplace, during working hours, and/or at work-related events. The City also reserves the right to take appropriate corrective action against potential Policy violations occurring in an environment or under circumstances with a nexus to the workplace. These environments or circumstances may include, but are not limited to :
- at work-related conferences
- at City sponsored volunteer activities, meetings or events
- at council, committee and commission meetings or events
- in “the field”
- before or after working hours (including during breaks)
- online (whether or not during working hours)
- at “off-duty” events when interacting with other City employees, contractors, and/or volunteers (including social events such as “happy hours,” retirement parties, holiday celebrations, etc.)
This Policy also prohibits employees from using any technology, communication system, or equipment, regardless of whether City-issued, personal, or otherwise, whether used online or offline, to deliver, display, store, forward, publish, circulate, or solicit material in violation of this Policy. The technology, communication systems, or equipment referenced in this subsection may include, but are not limited to , email, text, social media, internet, intranet, telephones, computers, fax machines, voicemail, radio, video, cell phones, mobile digital terminals, or other communication devices.
Comment: Except for the prohibited modalities this just does not apply to NC members. We can better define when the code of conduct applies by relating it to board and committee meetings, NC sponsored events and social activities and all other times when the board or committee member purports to be or the appears to be acting as such. Language such as this is included in the currently proposed policy.
2.3 Consequences for Violation of This Policy
All individuals covered by this Policy are responsible for understanding and conducting themselves in accordance with this Policy and its related Workplace Equity Complaint Procedures. Failure to do so will result in prompt and appropriate responsive administrative action which may include, but is not limited to, counseling, education and training, oral or written warnings, written reprimands, suspension, demotion, discharge, or removal ( e.g. Policies of the Personnel Department, Section 33.2).
Comment: While some of this might apply to NC members it’s too confusing and much to specific to employees to even consider.
The only consequences in the currently proposed policy are suspension by the Dept and removal by the BONC. We need to specify that the Dept can propose things like training or dispute resolution before moving on to requesting removal. We need to have a process.
3.1 Equitable Workplace Standards
City Policy prohibits harassment or discrimination on the basis of any Protected Category, or sexual harassment, retaliation, and other inappropriate conduct based on a Protected Category or protected activity. These activities interfere with the City's goals of maintaining a diverse, equitable, inclusive, and productive workplace.
Protected Categories under this Policy include:
- Acquired Immune Deficiency Syndrome (AIDS) or the Human Immunodeficiency Virus (HIV) Status
- Age (40 and over)
- Disability - Mental or Physical
- Domestic Violence Victim Status
- Gender, Gender Expression and/or Gender Identity
- Genetic Information (including family medical history)
- Marital Status
- Medical Condition (cancer and genetic characteristics)
- Military and Veteran Status
- National Origin (including but not limited to language use restrictions)
- Race (including natural hair texture and/or protective hairstyles)
- Religious Creed (including but not limited to religious dress and grooming practices)
- Sex (including but not limited to pregnancy, childbirth, breastfeeding, and related medical conditions)
- Sexual Orientation
- Any Protected Category under local, state (California), or federal law
This Policy also includes protections for individuals perceived as being a member of one of the Protected Categories and individuals associated with members of the Protected Categories.
The City prohibits conduct in violation of this Policy and will respond promptly and effectively to reports of potential Policy violations. This response includes action to stop, prevent, correct, and where appropriate, to discipline any individual who engages in any conduct that violates this Policy.
The definitions of conduct prohibited by this Policy may be different than those used in legal proceedings in courts of law. Consequently, no legal conclusions can or should be drawn from decisions associated with this Policy and its related administrative procedures.
Comment: Again, thing like the consequences do not apply to NC members. However, the definitions of protected classes can be used as well as some of the prohibited conduct.
3.2 Conduct Prohibited Under This Policy
For the purposes of this Policy, discrimination is the unequal treatment of one or more employees or applicants in any aspect of hiring or employment because of the employee(s’) actual or perceived Protected Category(ies).
Discrimination may include, but is not limited to, one or more instances of the following:
- granting or withholding promotional opportunities due to an employee’s race, disability, sexual orientation, etc.
- recommending or instituting discipline against one or more employees because of their
- religion, national origin, age, etc.
- declining to hire an applicant because of their sex, marital status, veteran status, etc.
- requiring different work appearance, dress, and grooming standards based on sex,
- gender/gender identity, gender expression, religious beliefs, etc..
- making employment decisions about individuals related to their natural hair texture or
- wearing protective styles such as braids, locs, twists, and knots
Comment: Is there any way this could be applied to NCs? Perhaps we could use the categories when we speak about how NC members interact with one another and the public. Maybe it would apply when someone is denied committee membership or when someone is seeking to be appointed to an open board seat.
For the purposes of this Policy, harassment is the unwelcome and offensive, threatening, or abusive treatment of one or more employees or applicants (by any individual, including both City employees and third parties) because of their actual or perceived Protected Categories. Harassment can include, but is not limited to, one or more instances of the following:
- posting, sending, forwarding, soliciting, or displaying in the workplace any offensive
- materials, documents, or images that are or could reasonably be perceived as racist,
- sexist, ableist, ageist, or as targeting any protected group
- using epithets, slurs, or degrading words or names related to a Protected Category
- making jokes related to a Protected Category
- making comments or gestures about a person's physical appearance which have a racial, gender-related, disability-related, religious, age-related, or ethnic connotation
- making derogatory comments about religious differences and practices
- offensive or unwelcome conduct or comments targeted at one or more employees because of their Protected Category, even if the content is not about their Protected Category
Comment: This could easily be modified to apply to NCs.
3.2.3 Sexual Harassment
For the purposes of this Policy, sexual harassment includes unwelcome sexual advances,
requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature (by any individual, including both City employees and third parties) which meets any one of the following criteria:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual or others; or such conduct could reasonably interfere with the performance of work or create an offensive, intimidating, or abusive working environment.
- Sexual harassment may include, but is not limited to , one or more instances of the following:
- unwelcome romantic or sexual advances, flirtation, teasing, sexually suggestive or
- obscene letters, invitations, comments, questions, notes, emails, voicemails, or gifts directed toward another employee (including those initiated between employees engaged in a current or former romantic relationship)
- making sex, gender-, or sexual orientation-related comments, slurs, jokes, remarks, or epithets
- leering, sexual, obscene, or vulgar gestures
- displaying or distributing sexually suggestive or derogatory objects, pictures, cartoons, or posters
- impeding or blocking movement, unwelcome touching, or assaulting others
- reprisals or threats after a rejection of sexual advances
- treating an employee(s) favorably because of sexual or romantic conduct
Comment: In the proposed Workplace Equity Policy this conduct is prohibited as it applies to getting ahead in the workplace. It could be modified to fit with NC activities.
3.2.4 Bystander Harassment
For the purposes of this Policy, bystander harassment occurs when an employee witnesses an incident of unwelcome and offensive, threatening, or abusive conduct, even if the individual engaging in the conduct is unaware of this “bystander” employee’s presence. When an individual (whether a City employee or third party) engages in harassing behavior, they assume the risk that a “bystander employee” may witness the behavior. The City considers bystander harassment as being the same as direct harassment of an employee.
Bystander harassment can include, but is not limited to , the following conduct:
- making jokes or comments related to a Protected Category (such as one or more disparaging comments about individuals of a different sex), which are overheard by another employee
- sending an email containing offensive materials to a trusted colleague, which is inadvertently forwarded to or witnessed by another employee
- engaging in one or more acts of physical contact in the workplace that is/are sexual in nature and is/are witnessed by another employee
Comment: This would be very difficult to apply to NCs. It is very specific to activities within an employment setting. Elsewhere, it might be recognized as objectional but falling within the definition of free speech.
For the purposes of this Policy, retaliation is any adverse employment action or conduct taken against one or more employees or applicants because the employee(s) or applicant(s) engaged in any activity protected under this Policy.
- “Protected activities” under this Policy may include, but are not limited to :
- reporting or assisting in reporting suspected violations of this Policy
- cooperating in investigations or proceedings arising out of any alleged violation of this Policy
- requesting or receiving a reasonable accommodation for a medical condition or disability, such as medical leave
- reasonably and in good faith indicating opposition, or taking actions to oppose, discrimination or harassment any other kind of opposition to inequitable conduct in the workplace, whether formal or informal
Examples of adverse employment actions or conduct may include, but are not limited to:
- conduct or behavior that could reasonably interfere with an individual or individuals’ terms and conditions of employment
- conduct or behavior that has the effect of creating an intimidating, hostile, offensive, or
- abusive working environment for the individual or others
- non-selection for training, promotion, or other coveted position
- discipline, reprimands, loss of pay, transfer, demotion, reassignment, or termination
Comment: Again much to specific to employment activities to apply to NCs.
3.2.6 Inequitable Conduct
By way of this subsection, it is the City’s intent to identify, address, and prevent misconduct at the lowest possible level.
Inequitable Conduct is any inappropriate conduct based on a Protected Category or protected activity. Inequitable Conduct includes any instance of unwelcome conduct directed at one or more employees or applicants, that is committed by any City employee, because of the employee(s)’ or applicant(s) actual or perceived Protected Category(ies) or protected activity(ies).
Similarly, unwelcome conduct that is sexual in nature may also violate this Policy.
Inequitable Conduct may be similar in nature to conduct defined as discrimination, harassment, sexual harassment, and retaliation under this Policy, although to be considered Inequitable Conduct, it will be lesser in severity.
Inequitable Conduct may include, but is not limited to , one or more instances of the following, depending on the context in which it occurs:
- Microaggressions (indirect, subtle or unintentional verbal or behavioral conduct that communicates hostile, derogatory, or negative attitudes toward protected categories)
- Stray remarks
- Hostilities in vocal tone and body language
- Sexual innuendo
Comments: The above definitions of prohibited conduct are closely related to employment and employment opportunities. They can be tailored to NCs and NC activities but should not be considered in their present form.
Proposed suspension policy amendment 12-19-21
If a Board Member or Committee Member is alleged to have violated either the City’s Workplace Equity Policy or the Commission’s Code of Conduct, and it has been determined that the allegation is credible and, that because of the nature of the violation immediate action is necessary, then, the Department with written approval from the General Manager, may immediately suspend the Board Member or Committee Member for a period of up to 90 days, during which time the Department will determine how the violation can best be addressed either by the Neighborhood Council, the Department, the Board of Neighborhood Commissioners or another City agency or Department. Said Board Member or Committee Member shall not be eligible to act on any matter that comes before their Neighborhood Council Board or Committee and shall not be counted for the purpose of establishing a quorum of the Neighborhood Council Board or Committee. The Department will make a good faith effort to resolve the situation in the shortest time possible.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])