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Memo: Election Procedures Issues for Neighborhood Councils
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Election Procedures Issues
for Neighborhood Councils
Download a printable MS Word version
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From: Robert Gelfand - Coastal San Pedro NC & Vice Chair, LANCC
To: Deputy Mayor Larry Frank
1. History: Under the city Charter and enabling legislation, neighborhood councils (nc's) were required to create their own organizational structures, bylaws, and election procedures. In particular, the bylaws were created by the entire community of nc organizers, were then reviewed by the Department of Neighborhood Empowerment (DONE), and had to be accepted by the Board of Neighborhood Commissioners (BONC) as part of the certification process.
Bylaws should be considered to be part of the covenant between the neighborhood council and the community it serves. Bylaws are not to be modified trivially, nor should they be modified absent community input and consent. The rightful time for the city to give input on an nc's bylaws is when that nc first comes up for certification and when it submits proposed amendments.
2. Creation of the Citywide Election Rules: In response to numerous complaints about elections in some nc's, DONE presided over a process to create a set of citywide election rules. The intent was virtuous: to protect stakeholders, to ensure a predictable and orderly process, to reduce the number and validity of complaints, and to set up a process by which challenges to elections would be heard fairly and decided promptly.
3. Good Results: Some of that intent has been achieved. The election procedures accepted by the City Council on January 26, 2005 set minimal requirements for notification to the community and for the types of elections that may be held. The rules require elementary fairness, in that the rights of all stakeholders to vote are guaranteed.
4. Other Results: Some of that intent has not been achieved. DONE failed to create the election Template in a timely manner, failed to create and train people to serve as the pool of Final Decision Makers, has in general failed to teach nc's about the new rules in a timely manner, has sometimes failed in its duty to fulfill its requirement to work with stakeholders to write election procedures, and has failed to provide proper notification regarding timelines and deadlines. DONE has only now begun the process of training election administrators.
5. In addition to its failures of omission, DONE has overreached in several regards. DONE has ordered numerous nc's to change their bylaws, particularly when bylaws specify the date or month of the annual election. DONE has unreasonably withheld consent for election procedures.
6. To the best of our knowledge, DONE has ordered at least seven harbor area neighborhood councils to delay their elections. We may consider one particularly egregious example, that of the Central San Pedro NC, to begin to see the nature of the problem.
CSPNC appointed an experienced nc member as election administrator, who dutifully generated the proposed election procedures using the 2005 template provided by DONE. After submitting the proposed procedures, CSPNC was informed that DONE was preparing (or had just prepared) a new template for 2006 elections and that CSPNC should use the new template. Since this problem had delayed the process, CSPNC was told that it would have to delay its election past the usual date.
In addition, since the new election date would not be consistent with the CSPNC Bylaws specification, CSPNC was ordered to change its bylaws to make them conform with the new election date.
We may summarize the CSPNC experience as follows: Due to the inability of DONE to fulfill one of its responsibilities under the citywide election rules (to provide a template to nc's), this nc had its election procedures declared invalid. The colloquialism for this kind of situation is "Catch 22." Then, DONE compounded the injury by demanding that the nc change its own bylaws to conform to DONE's orders. This is in direct contradiction to the above stated principle, that bylaws are a covenant between the nc and the entire community that are only to be modified after due deliberation and consent. It is not at all clear that the bylaws change that was demanded is in the best interests of the community. Rather, we may view it as, in essence, extorted from the nc: As DONE has repeatedly made clear, failure to follow their orders in this regard will cause DONE to institute the process of nc decertification with BONC.
It should also be mentioned that, to the best of our knowledge, DONE did not complete its 2006 template until some time in February, 2006. It certainly was not communicated to neighborhood councils before that time. This is important, because DONE is now demanding that nc's follow or will have followed the 140 day timeline for submission of election procedures to DONE.
This means that every single nc which routinely has held its elections between January and June is out of luck. Even had they submitted election procedures the very same day the 2006 template came out (sometime in February), there is a minimum of four months and twenty days before the election can be held.
Although DONE did not fulfill its duty to create the template in a timely manner, it is now requiring that nc's follow the timeline rigorously, even though this would not be possible absent the invention of a time machine.
7. The legal justification for the demand that bylaws be changed is weak at best. Asst City Attorney Peter King informed me that in the case of a corporation missing an election deadline, the likely action by a court would be to order that the election be held as soon as reasonably possible. This would have been an option available to DONE.
Note that DONE is perfectly willing to override an nc's bylaws on other issues when it so chooses. For example, DONE has informed Coastal San Pedro NC that its elected Governing Board may continue to function after the date that its bylaws specify that their terms are terminated. We may ask why DONE feels free to override one bylaw specification, but then claims that it is not possible to override another. It should also be noted that DONE's order to Coastal San Pedro NC to change its bylaws is not actually justified by what the bylaws actually say; the bylaws specifically provide for the fact that DONE, the city, and state law take precedence.
8. As mentioned above, DONE did not fulfill its obligation to create the pool of Final Decision Makers. It now tries to force nc's to accept the city's Human Relations Commission in its place. This is an undesirable and, for some nc's, an unacceptable provision. The HRC is not designed or staffed to carry out judicial functions. Previous experience with the HRC has shown that it is not currently capable of doing a decent job in hearing election challenges and reaching decisions. In particular, the HRC (ironically enough) has been utterly negligent in providing notice to challenged parties and in offering them the chance to confront the evidence or their accusers. In addition, in responding to a 2005 election challenge against the Coastal San Pedro NC, HRC made clear in its written decision that it had already prejudged any future challenge.
9. Recommendation: Coastal San Pedro NC recommends that there be a moratorium on the citywide election rules while these difficulties are sorted out. The length of the moratorium might be for 2006, or might be suitably extended until the 912 Commission makes its recommendations. Since election procedures will undoubtedly be a major item of discussion for the 912 commission, this would be the preferred course of action.
The L.A. Neighborhood Council Congress (Lancc) voted to create an ad hoc committee to investigate election problems and appointed the writer of this memo to chair that committee. The above recommendation was communicated to the Lancc delegates for consideration by their respective nc's.
10. Additional Issues: In creating its template, DONE has gone well beyond the requirements of the citywide election rules. Previous to the dissemination of the template, DONE routinely demanded of nc's that they add items to their published procedures that are not required by the citywide election rules. For example, DONE demanded Coastal San Pedro NC to add detailed information about the street address, the name and telephone number of the election administrator, and so forth. None of this was a problem, and it would have been made public in any case. The problem comes about when DONE demands changes, and then uses such changes as an excuse to delay an election. This is unreasonable, and another Catch 22.
11. The Philosophical Error:
The neighborhood council is not the 17 or 21 elected Governing Board members, but the whole community of stakeholders. DONE recognizes this fact when it insists on nc's using the lawful definition of stakeholder status, and when it demands outreach to the entire community. Unfortunately, when it deals with other issues, it sometimes turns the idea upside-down. For example, DONE is punishing the entire community by taking away its right to vote for its community representatives. DONE and the city ought to guarantee the rights of all stakeholders to vote in the annual election, without delay or unreasonable withholding of consent. Delaying an election unreasonably punishes the whole community.
In practice, the delays appear to serve little or no practical purpose. The changes demanded by DONE are of form, not substance, for the most part, and those that would be of substance could be accomplished without enforcing delays.
By cancelling and delaying nc elections, DONE has disenfranchised the entire community of stakeholders, even if it is only on a temporary basis. It is hard to come up with a proper analogy in the wider American context because it is such a rare occurrence, but perhaps the following might hold: Suppose the state supreme court decided that the city of Los Angeles had problems with the way it runs elections, and therefore ordered that the next election be cancelled or delayed, and that City Council members continue to serve an additional six months without being reelected. Change the names, and this is precisely the situation faced by the Coastal San Pedro Neighborhood Council.
12. The 2005 Citywide Election Rules: As the Asst City Attorney explained, these rules are guidelines, not an election code. This is an important distinction, because as guidelines, the rules allow for some judgement and flexibility.
Here is an example of how not to do things: DONE has made an issue out of the fact that Coastal San Pedro NC cannot hold its election until 140 days after the submission of its proposed election procedures. DONE is enforcing that provision rigorously.
Without rehashing the fact that DONE, through its own inaction, made it impossible for the nc to follow that timeline and also fulfill its own May election schedule, let's consider the issue as to substance rather than form:
The timeline was created in order to (a) provide enough time for DONE to review an initial submission by an nc, (b) to provide time for the nc to review DONE's response and to come into compliance with the citywide rules, (c) for DONE to do a final review on the corrected rules, and (d) for public outreach so that the community will become informed about the election.
The most critical part of the timeline is the last 60 days, because that is the only part of the process which involves bringing the public into the election process. All the rest involves internal back-and-forth between DONE and the election committee, something that should be entirely transparent to the public.
In other words, as long as the public is informed about the election in a timely manner and the election is conducted properly, the rest of the timeline is superfluous as far as the broader public are concerned. As people who have dealt with DONE for half a decade and recognize its work load, we recognize that the timeline is not entirely superfluous -- DONE is within its rights to demand reasonable compliance with the broader timeline because of its requirement to review 87 nc elections each year, but surely there can be some flexibility on DONE's part. In fact, it is obvious that DONE has actually made more work for itself by its present course of conduct than it would have if it were to be less authoritarian.
Addendum added as of June 6, 2006:
There are 38 nc's that have had their elections postponed or cancelled by order of DONE so far this year. Considering that some nc's may hold their elections later in the year, we may speculate that this number probably represents a majority of all nc's that have submitted proposed election procedures. We are waiting to receive the answers to this and other questions.
DONE recently informed neighborhood councils that the post of Independent Election Administrator (IEA) cannot be held by someone who is also a stakeholder in the nc holding the election. This new rule was dropped on nc's out of the blue late in May, forcing a flurry of changes; for example, the Northwest San Pedro NC was only 3 weeks away from its election when it was informed of this new rule. Apparently DONE will allow the late substitution of an IEA, although this is technically a change in the election procedures, and in spite of the fact that the change is made less than 60 days before the election. In this as in so many other questions, DONE arbitrarily enforces some rules and fails to enforce others.
Delegates from the Los Angeles Neighborhood Council Congress (Lancc) met with Deputy Mayor Larry Frank on Friday, May 26, 2006 and discussed the elections problem. We received assurances that the Deputy Mayor's office would investigate.
Subsequent to that meeting, the Woodland Hills nc communicated that it was having difficulties. These included the fact that although it had complied fully with the citywide election rules and with DONE's requirements, nevertheless it was served with an order by DONE to postpone its election, this coming only three weeks before the scheduled date. Woodland Hills requested that its City Councilman, Dennis Zine, come to their aid, and he did.
At the City Council meeting of June 3, 2006, it was made clear that DONE has failed to achieve some of its responsibilities under the citywide election rules, and that the Woodland Hills nc was unfairly burdened by DONE's failure to act in a timely manner on its application. Woodland Hills nc will now be allowed to hold its June, 2006 election without further threats or obstruction by DONE (at least as of this writing).
From all the information that is now available, a pattern has emerged in which DONE has been acting arbitrarily, asserting essentially unlimited authority over neighborhood councils, and without any balancing safeguards that would force it to act reasonably and in good faith. The concept for neighborhood councils under the 1999 city Charter amendment is that councils have official standing and that DONE exists to support and assist them. The current problems go directly contrary to that philosophy.
