The Grievance Conundrum
by Bob Gelfand
Back in 2001, when we were creating our original neighborhood council bylaws, DONE told us to include a section on grievances. The instruction was pretty vague, so we were forced to ask ourselves several questions. The questions haven't changed over the years, but to our irritation, they have remained unanswered by DONE or the city:
1. What is a grievance, anyway? Is it any complaint, or a specific kind of complaint? Is it only a violation of the law, or could the definition be wider, such as a violation of Roberts Rules by the chair?
2. Are grievances limited to complaints against the governing board, or can they be lodged against specific members of a governing board, or could a grievance be filed by one member of a governing board against a fellow member of the same governing board?
3. How is a grievance complaint made -- by whom, to whom, under what format, and under what conditions of time, place, and manner?
4. How shall a grievance be decided? May a governing board dispose of a grievance against itself, or must some other person or persons be designated? And if so, by whom? What are the principles in terms of due process, evidence, and the right to confront opposing witnesses?
5. How must those entrusted with deciding the validity of a grievance report their findings?
6. In the case of a negative finding (ie: that nothing was wrongly done), does the complaining party have any right of appeal?
7. In the case of a positive finding (ie: that someone did something wrong), what remedies are appropriate, and how can they be applied? Is there any right of appeal, and to whom?
8. In those cases which involve differences of opinion over how a neighborhood council is managed, is there any such thing as a grievance, or should all of these be rejected as merely political differences?
The History of debates and discussions on grievances by DONE and others
Each neighborhood council was required to include bylaws language with regard to grievances as a condition of its certification. It is not clear that any two bylaws sections on grievances are substantially alike, or that any one of them is particularly well constructed.
Many neighborhood councils appear to have functioned with few or no official grievance filings; for example, my own neighborhood council has had only one written complaint in its 8 years of existence, and that was handled informally.
Then there is the extreme opposite case, the Venice Neighborhood Council. One person continued to file dozens and dozens of grievance complaints over an extended period of time. A brief review of those complaints reveals that they were without merit, highly redundant, and appeared to become, over the course of time, simply a vehicle for harassment.
In other cases, it is obvious that several neighborhood council governing boards were substantially negligent: Some refused to allow members of the public to speak when it was appropriate to do so; others failed to hold meetings, and some failed to hold elections for years on end.
Official Action: a history of anemia
The history of DONE and BONC actions suggests an unhealthy pattern: For the majority of its early existence, the BONC attempted to be a mediator or allowed DONE to make the attempt, but would not take effective action against even the worst violators. The most famous example was the Venice Neighborhood Council (at the time operating under a different name), which carried on what can best be described as a political civil war. One side consisted largely of activists from the Peace and Freedom Party, and on the other side were those who wanted a more broadly representative board. The membership of the governing board gradually dwindled to the point that legal quorums were impossible. Even in the face of this catch-22 situation, the BONC failed to take effective action, which might have been to invite DONE to preside over new elections.
Eventually this process occurred, but it took years, led to widespread public frustration, and called into question the capabilities of DONE and BONC.
The most striking element in this whole Venice NC controversy was the assertion by DONE and BONC that there were no legal tools available to solve the problem. This may have been technically true at the time (although it isn't entirely clear), but to imply that the condition had to continue was clearly nonsense. NC bylaws are, as a matter of law, subject to the dictates of statute, the Charter, and acts passed by the City Council. It would have been easy to write a modification of the Plan (ie: the enabling statute passed by the City Council) that would allow DONE and BONC to intercede in the case of any nc that demonstrates that it cannot function. In particular, the City Council could have enabled DONE and BONC to intervene directly in the case of any neighborhood council that fails to meet for an extended period of time.
DONE Workshops and Committees
At various times, DONE has created committees with the intent of developing a grievance procedure. This has happened at least twice in DONE's existence. The first committee was directed by DONE staffer Jamiko Bell. The second, several years later, was run under the tutelage of the current General Manager.
I participated fully in the first such committee and partially during the second. Neither effort resulted in anything useful. In particular, no grievance system under DONE was ever enacted at any time in the entire history of neighborhood councils, and the question as to how to proceed remains open to this day.
Wide philosophical gulfs among the participants
As a participant in the first such committee, I discovered that there were two disparate schools of thought among the participants. The following is my own view of what happened:
For lack of better terminology, I will categorize the competing views as the Authoritarian vs the Libertarian. I have chosen these terms because (a) they fit the dueling philosophies reasonably well, and (b) they are both, to a certain extent, negative terms and therefore do not necessarily represent an attempt to be unfair. I will be the first to describe my own position as being among the libertarian views.
In essence, the authoritarian view can be summarized as follows: Neighborhood council governing board members have duties they must undertake and certain rules they must follow. If they fail, then the system (ie: DONE or some other body that DONE would create) has a duty to take action to set things right.
Advocates of this point of view took the authoritarian principle pretty far. In fact, they repeatedly spoke of sentencing governing board members to "mandatory training" or used other terms of a similar nature. What I found truly curious about these remarks was that the discussion of how to define grievances jumped right to plans for punishing people, with no intervening discussion about how the question of guilt or innocence might be approached. There was little or no intervening discussion about due process or the rights of the accused. In essence, the people who held such views seemed to be willing to trust DONE or some other ad hoc agency to carry out investigations, make determinations as to guilt, and to pass sentence.
The above may sound like a harsh indictment of what went on at the committee, but it is an honest account, taking into consideration my own opposing philosophy.
What was the libertarian point of view then?
In brief, it was the view that we are all volunteers and that DONE has no police powers over us; that is, DONE has no authority to order any of us to do anything. At the most, DONE has the right to deny the right to be treasurer to those who won't undergo specific treasurer training.
In addition, DONE and BONC have the right to abolish a neighborhood council under carefully specified circumstances, but they have no rights of compulsion whatsoever over any individual person.
Did anything get resolved?
What became curiouser and curiouser over the course of these discussions was our inability as a group to reach any consensus about what a grievance actually is. Here I use the term "grievance" to refer to some act that would justify (a) a complaint being filed (b) a review or hearing of that act and (c) some remedy to be assessed against the wrongdoers if the fact-finding body determined that guilt existed.
In practice, some of us fantasized over how to punish wrongdoers, while others of us protested that the whole approach was fundamentally flawed because DONE is not and should not be a police agency.
Intervening Variables
When we consider the history of the system of neighborhood councils in Los Angeles, two issues seem to be the most contentious.
The first is the fairness of our elections.
The second is the behavior and performance of governing board chairs.
Whether you call them grievances or some other term, the majority of complaints heard by frustrated City Council members have involved these questions. People who sided with the losing side in an election sometimes complained that the election was unfair, or rigged, or at least tilted. For example, the outreach efforts by the governing board prior to an election were often called into question as to their completeness or bias. The locations and hours of elections were questioned,
Even more common were (and continue to be) complaints about the behavior of those who chair our meetings. These complaints are, in my view, often justified. I have seen governing board chairs violate the rules with impunity. In one recent experience, I witnessed the elected chair of a neighborhood council repeatedly interrupt members of the governing board, using language such as, "You are only one vote." The interruption and the denigrating tone combined to present a highly prejudiced atmosphere, intended to move the outcome of the discussion in a particular direction.
Remedies for these problems
My view is and has always been that if DONE were to have only one duty, it would be to guarantee to all stakeholders the right to free and fair elections. I made this comment to GM Nelson before any nc was in existence, and I feel that this is the crux of much of our debate. Whether the party carrying out oversight should be DONE, the City Clerk, or something else is a different question, but without fair elections, the legitimacy of the system fails, and no grievance procedure can be a remedy for the bad results.
Under the new rules established by the City Council, the City Clerk is responsible for neighborhood council elections. This is a questionable experiment at best, but it has the advantage that no stakeholder can make an effective claim against an elected governing board for mishandling an election. The City Clerk's office is an agency of city government and has the virtue of being sufficiently distanced from the life of the neighborhood council to be believable as a neutral party.
Fixing the Chair Problem
The issue of chair misconduct is actually less difficult. There are two or three remedies available, and combined, they solve the problem:
First, the officers of any governing board should be elected by the members of the board, and be subject to being replaced by the board. This is the first element in dealing with a chair who is rude to members of the governing board or to the public. It is an imperfect remedy, in that it denies to the public the right to elect the chair directly, but its virtues outweigh its faults. In the one case, there is no way to remove the chair, and even the disappointed public have no say. In the latter case, the public can speak out and petition the members of the governing board, which may result in the chair becoming more accomodating, or might result in the chair being replaced with somebody who promises to run meetings in a fair and polite way. In any case, the chair understands that she serves at the pleasure of her fellow board members, and will be retained as chair only so long as she has the support of the majority.
The next remedy is to train governing board members in Roberts Rules of Order.
In one neighborhood council that was having difficulties due to an imperious chair, we discovered that the rest of the governing board members failed to defend their own rights simply because they had no idea of what their rights were. In addition, they lacked even basic knowledge of how to make a motion, how to offer an amendment, the technicalities of debate, or how to use any of the alternative methods (such as the motion to "lay on the table") for dealing with troublesome motions. They were ignorant of the use of the "point of order" and they failed repeatedly to defend themselves or the public interest as a direct result of all these failures.
We therefore met with a few governing board members and taught them the minimum Parliamentary procedure necessary to begin their own internal reform movement. This resulted in improved functioning of the council, although it could not, in and of itself, turn a bad chair into a good chair. As an aside, this nc ultimately prevailed in amending its own bylaws so as to allow the governing board to elect the chair, which has, if nothing else, resulted in a lot less tension on the board.
The final remedy is critically important, but has been all but ignored by DONE. It is to train governing board chairs in the proper use of Roberts Rules. At the core, it is to point out to every chair the following: "Your first and last duty is to protect the rights of all participants. You have no right to attempt to force your views over any other participant, you are required to uphold the rules of procedure -- in particular with regard to time management -- and you are required to remain civil to those who merely offer opinions contrary to your own. You have to make yourself not only familiar with Roberts Rules, but proficient in their execution."
The problem, as I see it, is that DONE is entirely ignorant of the underlying philosophy in Roberts Rules, namely the duty of the chair to protect the rights of all people.
Notice that failures by the chair include not only commission, but omission. The most common act of omission is for the chair to fail to do time management. We are all familiar with this problem: We may set time limits on an agenda item, but for some reason the chair fails to enforce those limits. People are allowed to talk on and on.
Paradoxically, the usual result of such run-on discussions is that the board takes no action, because it has lost focus and wants only to get finished. A more effective chair will point out the time situation, invite the board to either extend discussion or to take action on the motion, and may thereby facilitate effective action. Note that under the Brown Act and commonly accepted nc practice, members of the public are allowed to continue making comments even after time has run out, as we like to embrace public opinion as a core element of our existence as neighborhood councils.
As a remedy for incompetent management of meetings by chairs, let me propose the following remedy: We should offer to do informal workshops to train chairs (and would-be chairs) in the skills, duties, and principles involved in running a meeting. We feel that such workshops are better done by us amateur volunteers, rather than DONE staff, because we have seen no evidence that DONE staff know anything much about the question.
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