CommentsGELFAND’S WORLD - I have an old friend who was running for a neighborhood council board seat a few months ago. One of her political opponents made claims about her that she says were false.
There was actually campaign literature that she thinks was defamatory. So she reported this behavior to the city's Department of Neighborhood Empowerment (DONE) and the office of the City Attorney. I think the office of the City Clerk was included in there somewhere, because the Clerk runs the neighborhood council elections and is in charge of enforcing the rules.
None of them did anything about it. Whether they discussed her claims internally is another question, but the effect was that they made no attempt to disqualify either of the candidates (herself or her tormenter) nor did they make any public admonishment to either party.
And, in my view, this was the proper thing to do on the part of the authorities.
Now before my old friend feels eternal anger against me for saying this, I would like to be allowed a chance to explain.
DONE is not your mother.
DONE and the City Attorney and the City Clerk are all administrative agencies that have specific jobs to do. One is supposed to assist neighborhood councils in the business and administrative side of their responsibilities, one files criminal complaints and represents the city in lawsuits, and the last one carries out elections, among many other things.
None of them is tasked with getting involved in personal disputes, particularly those between election opponents.
But shouldn't someone step in when one candidate lies about another? The answer may be disappointing to some, but it is No. And there are reasons aplenty.
For one, how do you determine whether something is a lie or the truth? We have a few official channels for making such decisions. One of course is the courts. They deal with truth vs lies every day of the week, both in civil and criminal matters. We also have a system that comes down to us from pre-modern England. It's called the jury. There is even a legal term you can find in court decisions once in a while -- the trier of fact.
In other words, we have official venues for making such decisions, and they come to us with Common Law and Constitutional underpinnings.
Not only that, but there are limits to what sort of questions are even allowable in such venues. A fanciful example of a question that a court would refuse to indulge would be something like this: "We ask the court to declare that the earth is not spherical, but flat." Such a question has no bearing on a real dispute where one person as seeking monetary damages from another. It's just one of those silly assertions by a few people who like to make intellectual life strenuous for other people.
Admittedly, the question might come up if some geography teacher is fired from a high school teaching job for telling his students that the earth is flat. He might contest the firing and, in his defense, make that assertion. You can all imagine how well that defense would work. But at least the defense would have legal relevance in terms of a school district depriving the teacher of his salary and his title.
We get into a little more of a gray area when it comes to electioneering. In general, the courts have been loath to intervene in election campaigns, going so far as to strike down an Ohio law that created a bureaucracy for determining whether a political claim was true or false. First Amendment rights apparently take precedent over a right to censor political claims. This does not, of course, abolish the right to sue for libel, but that is another question entirely.
So DONE and the City Clerk are correct to keep their distance when faced with a complaint that says, in essence, that somebody doesn't like you and is lying about you.
Such questions are particularly sticky when the 'lie" is more like a difference of opinion -- somebody might want to claim that you are close with property developers because you once voted against some motion to oppose a development. Such a claim might not be fair. It might be a complete inversion of how you actually think and feel. But we are all familiar with how such claims play out in the highly contested races for congress and statewide offices. Opponents will find a few votes (out of thousands that somebody has cast in a political career) and use them to argue such spurious claims.
In the sandbox that is neighborhood council electioneering, it's obviously at a lower level. The charges are of a lesser nature and the target audience is much smaller. Even then, First Amendment rights hold. You can't expect DONE to forbid a candidate from challenging the policy pronouncements of an opponent. It's not the dinner table in your family's house. DONE is not your mother.
Finally, we come to the crux of the matter. Even if it were appropriate for the Clerk or DONE to make such factual determinations ("we find that John lied about Mary") what would the legal remedy be? About all they could do would be to disqualify one or more candidates. The other alternative is to do nothing. Our system doesn't envisage some partial subtraction of votes from the outcome, the way a tennis umpire can invoke a penalty of a certain number of points. In practice, such decisions are left to the voters and you, the aggrieved party, have the right to challenge your opponent's claims and personal veracity.
Getting beyond election disputes
There are a whole lot of other complaints that come up. Most seem to involve hurt feelings or even outrage over some perceived mistreatment during a meeting. Often, it's when some member of the community is told to stop speaking for some reason. Sometimes it's because the speaker if off of the topic that is currently being considered, sometimes it's because the speaker is out of time, and sometimes it's because the person chairing the meeting is genuinely wrong about the rules. Once in a while, the chair is just being autocratic and dictatorial. I've seen all of these on occasion.
The pertinent point here is that there is nothing in the city's Charter or in the enabling legislation that says that DONE shall be the ultimate authority over the use of parliamentary procedure and may correct errors committed by neighborhood council participants. Actually, the very idea would be laughable, considering how ignorant DONE staff and administrators have been about parliamentary procedure and the proper operation of meetings.
What is even more to the point is that under Roberts Rules of Order, the authority over the use of parliamentary procedure is with the board as a whole. It is not -- NOT -- with the chair alone, or with the DONE representative, or with DONE itself. It is with the voting majority of the lawfully elected board of the neighborhood council.
Is there ever a time when DONE or some other authority could intervene in the functioning of a neighborhood council? Sure. There are at least three such acts that can get a neighborhood council into hot water. The first is an actual violation of the open meeting rules, which can be enforced by the courts following a charge by the District Attorney. Another is when there is some power that the city has officially, by force of law, provided to DONE and where DONE has witnessed a specific act in violation. The third is some act that is in direct violation of the criminal laws, an occasion which would bring a police presence.
But this list does not include somebody complaining that somebody else does not like him or her. It does not include slighting remarks, or criticisms of somebody's argument, or even rolling one's eyes at somebody else's comments. (I can remember sitting in the audience at a meeting one time when a member of the board said, "Bob, don't roll your eyes at me!" She made her point, that she disagreed with my disagreement, but I was within my rights to respond to her remarks by a minimal facial expression.
DONE is not your mother
By which I mean, stop going to the city bureaucrats over personality disputes and perceived slights, and even violations of your rights under Roberts Rules of Order. The way to deal with these problems is, first of all, to get the majority of the neighborhood council board to know and understand parliamentary procedure.
The next step is to demand that the elected chair also know and use the rules. That by itself would solve ninety percent of all the (mostly trivial) complaints that the BONC and DONE have been willing to share with us -- the same vague and ambiguous complaints that are currently being used to justify an unjustifiable set of amendments to a code of conduct which should itself not even exist.
We could benefit by a sort of attitude adjustment here. If you have a specific complaint that involves a criminal offense or have witnessed a violation of the law, then by all means report it. Name names and give specifics. Provide photographs if you have them. But spare us from giving DONE and BONC an excuse to start writing new rules designed to force your nemesis to speak kindly to you.
One last thought
In recent weeks, there has been a lot of discussion (and mostly complaint) about the grievance process for neighborhood councils. At the time that we were discussing the future organization of the Coastal San Pedro Neighborhood Council, we were operating under a local tradition where resident associations would have yearly elections. We decided that for a neighborhood council, the best way to deal with elected board members who were a disappointment was at the next election. This gave the power to choose a board to the voters, where it rightly belongs.
In recent years, we've been seeing a series of moves by the BONC and the City Council that involve their distrust of the neighborhood council electoral process. That's why the BONC has forced a process onto our bylaws that allows for the administrative removal of elected board members. Think about it: The DONE and BONC proposals make the assumption that the voters are wrong every now and then, and it is up to a city agency to set them right. The idea that voters might want to have an outspoken, vociferous person representing their interests is lost on the authorities.
The current proposals for mandating training in equity to all neighborhood board members comes from the same set of assumptions. We are all supposed to be sensitive and politically liberal. I'll repeat a question I have asked before: Is there room for even one Republican in the neighborhood council system envisaged by our ruling clique?
One other point that goes directly to some of the complaints I have been hearing. When the neighborhood council system was forming, a lot of groups set aside specific board seats for particular interest groups. Many define a business seat to be taken by a business owner. Others are limited to residents of particular neighborhoods, which means in practice that owners of single-family houses get preferred representation. In other words, the system was designed to include board voting in which particular people represented specific interests rather than representing the community as a whole. If you want to claim that your board is pro-developer, you are just reacting to the system that the Charter commissioners created, not a violation of law.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].) Prepped for CityWatch by Linda Abrams.
