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Tuesday, November 15, 2005
Moving forward with dragging tails to erase the past
What follows was sent to The Garden Island newspaper Nov 6, but to date remains unpublished.
Time to move forward? Now hold the media watchdogs just a minute. It is always prudent to look at where you have been and where you are before moving forward, or you might not like where you wind up. The Garden Island's mea culpa (my bad) [Time to move forward, A5, GI, 11-01-2005] to KIUC was one of the most embarrassing public self-criticism sessions I have witnessed.
Money doesn't talk it swears, and after the KIUC people talked to TGI people, the newspaper pulled back quicker than a slug's antenna in a sea spray. Conditions of employment for the investigative journalist, Andy Gross, doing the stories became problematic. Professional ethics were the reporter's guide and walking papers rolled into one. Will the "lost Andy Gross article" ever be published?
"What prompted us to ask these questions to begin with" is answered in the editorial itself ,with: "... our goal is to get KIUC leaders to operate fully in the sunshine, in the open...." Really! Is this advocacy journalism run amok, or just doing your job of informing the community about events impacting their lives? I believe they call this "news".
Before moving forward do your readers a service and let them relive those wonderful days of yesteryear by republishing from your own archives a historical look back of KIUC. Such a historical stroll will show KIUC was born in the dark; a pale albino allergic to sunshine and openness. Citizens were rounded up, shanghaied and automatically "memberfied" through a little known legal fiction called estopple.
The KIUC educational outreach never answered the question "how did I automatically become a member" with "you were estoppled" (unless you sue us now you cannot sue later). Withholding this information doesn't seem cooperative.
Then there was the initial price inflated by ersatz buyers that evaporated when the deal went south. There was the struggle over county power authority versus coop model of ownership; the Mayor's committee; secret unrecorded meetings; council members endorsements; the military; the nitpickers; KIUC ballot irregularities; koa paddle gifts, etc, etc.
All these elements can bring the dark history of KIUC to life for your readers. How did we get in this mess? Who brought us here? Before we move forward please help your readership relive the past to give context and meaning to ongoing events by running a historical perspective from the archives of the Garden Island Newspaper.
Thursday, November 10, 2005
THE PLACE OF COMMISSIONS (AND BOARDS)
THE PLACE OF COMMISSIONS (AND BOARDS)
IN THE COUNTY’S POWER STRUCTURE
INTRODUCTION
As I have traveled alongside the Charter Commission in its study and review of government operations under this charter two themes have emerged as the heart of the matter: the structure and exercise of power and the place of commissions in these power arrangements. This testimony summarizes and extends my previous testimonies on the subject.
Government power is awesome because of its ability to affect the lives of people in countless ways. The powers of government should be delegated with great care and exercised as a solemn trust, preferably by persons of wisdom and courage. The level of integrity in the people’s delegation of powers (which includes both the Charter and the officials they elect) and in the exercise of power by County officials is the measure of the community’s political health. The Charter Commission’s unique role is one of recommending the structuring and delegation of powers.
My focus on the structure and exercise of power is not intended to detract from the competent and dedicated service of numerous County employees, but is intended to reflect the fact that the Commission’s mandate requires a focus on what improvements may be necessary or desirable. If it is to be relevant and effective, any such inquiry must begin and end with the ways power is structured and exercised.
Two aspects of power deserve particular attention when government operations are under review. First, power tends to expand until it meets a countervailing power (I believe this is the reality underlying the statement by Lord Acton: ”Power tends to corrupt, and absolute power corrupts absolutely.”) It follows that a democratic power structure functions best when it is based on a realistic appraisal of human fallibilities and when each person or agency exercises lawful powers with respect for other lawful powers because the overarching principle is the concept of countervailing powers.
Second, the motive power of democratic structures and processes is the power of persuasion, not authoritarian power. Democracy proceeds by discussion, debate, and the ballot, not by coercion enforced with the gun or by the arbitrary exercise of authority. These democratic processes are the community’s best protection against con men and would-be kings and kingmakers.
THE COUNTY’S POWER STRUCTURE
In our representative, constitutional democracy the structure of government is a system of countervailing powers. In this system the people delegate but retain sovereignty over the powers of government. At the federal and state levels the countervailing powers are divided among the legislative, executive, and judicial branches, with a subdivision of legislative powers between House and Senate.
At the County level the structures of Judiciary and Senate are absent. Their absence creates power vacuums in the structure of local government. We may be sure that the vacuums will be filled, one way or another. The question for the Charter Commission is what steps the people may take to compensate for the gaps in our countervailing power structure.
Under the present Charter and in current practice the Council is essentially a replica of the House and it inherits by default the powers (and responsibilities) of the Senate. Both Mayor and Council fill the judiciary vacuum through the agency of their political appointee, the County Attorney , who functions as a de facto judiciary in the normal course of events.
I previously suggested that making the office of County Attorney an elected position is a more effective compensating step than placing the office under the control of the legislative and executive authorities. I also raised the question of how to compensate for the absence of a Senate in our legislative branch; i.e. how to provide for the deliberative function of the Senate.
COMMISSIONS IN THE POWER STRUCTURE
What is the place of Commissions in the countervailing power structures of local government? I begin with the fact that Commissions are invisible in the County’s Table of Organization. One might assume that they are not really invisible because they are constituent elements of several departments. But this conclusion ignores the fact that four of them (Salary, Cost Control, Ethics, and Charter) are not connected with departments, that two of them (Water and Liquor Control) oversee virtually autonomous departments under the aegis of state law (i.e. they are responsible for raising and spending their budgets and the Commission appoints the department head), that two of them (Police and Civil Service) are largely controlled by state law and the Commission appoints the department head, and that all of them impinge to some degree on legislative, executive, and/or judicial powers.
The invisibility of Commissions in the County’s Table of Organization is remarkable in view of the fact that commissioners outnumber salaried (both elected and appointed) officials by about 5 to 3, and that’s counting only commissions created by Charter. Commissioners subscribe to the same oath of office as other officials. Their only unique feature appears to be that they serve without pay. I will provide separately at the Commission meeting a Table of Organization showing the power arrangements according to the Charter. It makes visible the place of Commissions in the governmental power structure.
One effect of making Commissions visible is to reveal the inadequacy of the widely-held dictum that commissions are “non-political” structures. The dictum conceals the fact that commissions are an integral part of the county’s power structure, that one of their functions is to exercise countervailing power, and that they can fulfill their responsibilities only by becoming conscious, principled players in the power structure. Commissions are non-political only in the sense that they do not stand for election. They are totally political in the sense that they are responsible for exercising their lawful powers.
In summary, the best-kept secret regarding Commissions is that, whether by state law or Charter provision, the people have said they are unwilling to entrust various powers and responsibilities to salaried officials, both elected and appointed, and choose instead to delegate them to Commissions.
The question for the Charter Commission is this: what changes in the Charter would empower Commissions to fulfill their responsibilities? I call attention to the proposal from Phyllis Stoessel for the creation of a Commission Administrator who would take the lead in recruiting and training volunteers to serve as commissioners and in assuring that Commissions have space and logistical support. (At present, the Charter makes no explicit provision for any of this.) In addition, specific suggestions, such as creating Commissions to serve in Public Works and other departments and making the Charter Commission a permanent commission, have been put forward.
In my opinion, the overarching task is one of reviewing the role of Commissions from the standpoint of their place in the countervailing power structures of the County and to arrive at specific changes based on this overview. I believe that Commissions, along with an elected County Attorney , offer the best chance for creating compensatory structures to fill the power vacuums created by the absence of a Senate and Judiciary.
HOW IS IT WORKING?
In this section my testimony relates to both aspects of the Charter Commission’s study and review of government operations under the Charter. I present evidence in support of the general proposition that Commissions do not function effectively as countervailing powers in the County’s power structure and that in this regard government is not functioning as the Charter intends—with the qualification that in some cases the Charter itself is part of the problem. My testimony should be viewed as anecdotal and as designed to encourage a realistic appraisal of government operations from the perspective of power: what powers are delegated to whom, how powers are exercised or not exercised, power vacuums and power sharing.
I am aware that the Commission will cut across the grain if it highlights the word “power.” People who exercise power do not like to talk about power. Here is an example intended to be illustrative only, not pejorative, and to show how language can influence perception. The Salary Commission asked the County Attorney if the Commission’s power to recommend administrative salaries to Council supersedes the Mayor’s power to do the same. The Charter currently authorizes both and the Commission needed to know how to reconcile the two conflicting provisions.
The Attorney’s response began with these words: “The use of the term ‘power’ is inappropriate, since the [Charter] does not contemplate one entity’s ‘power’ superceding another. Rather, the Charter allocates authority regarding salaries.” The response overlooks two facts. “Authority” and “power” are virtually synonymous terms, and the Charter itself uses the word “power” when it delegates the mayor’s authority regarding salaries in Sect. 7.05E. The Charter also frequently speaks of “Powers and Duties” in the case of other agencies.
Here is another example implicating both a Charter provision and its application. The Charter empowers the Mayor with voice but no vote in all Commission proceedings. The Administrative Assistant, in his testimony to the Charter Commission, interpreted this empowerment as a “privilege” and assumed that it is entirely up to the Mayor to decide what responsibilities are involved. The Charter opens the door to this interpretation by specifying no responsibilities. I suspect that one reason for this gap is that the government was much smaller and the pace of life was slower when the Charter was written, so there was no felt need to spell out responsibilities. However, the provision (Sect. 7.05K) reflects a tension in the Charter that can be stated this way: Does the Charter view the Mayor as an authoritarian or as the leader in a power-sharing structure? Stated differently, the Charter nowhere addresses directly the relationship between the Mayor’s powers as executive head of the administration and the powers delegated to Commissions. Would a policy statement in the Charter help to close this gap?
Next I offer a timeline relating to the Planning Commission and Director. I choose this example because I happen to know more about it and because I view Planning as Exhibit A in the breakdown of government functioning according to the Charter.
1999: The County Attorney issues a legal opinion justifying the Mayor’s action in (illegally) transferring the Deputy Planning Director and appointing his replacement. The legal opinion claims that the Mayor may preempt or usurp the power of the department head to appoint his deputy. The main argument is that the original Charter Commission intended to create a “strong mayor” system. But the opinion also records the fact that the power given to several commissions, including the Planning Commission, to appoint the department head was “intended to protect the department from partisan politics and to protect the director from political pressure.”
It should be noted in connection with this incident that someone, probably the Planning Director or Planning Commission or both, objected strongly enough to the Mayor’s action to elicit this legal opinion but did not follow through with a court challenge (which they would have won). Taking it to court would have required out-of-pocket money and would have led to other consequences, which may explain why they tamely accepted the County Attorney ’s opinion. Council’s acceptance of the opinion may also have influenced them. However, the substantive fact in the case is that no one in Planning understood their rights and responsibilities under the Charter, since apparently the only argument they put forth in opposing the Mayor was not based on the Charter and had no merit.
2002: The Council requests an opinion from the new County Attorney, who concludes that the department head has the sole authority to appoint the deputy, opines that the general intention to create a “strong mayor” system does not supersede the Charter’s specific delegation of appointing power to the department head, and reverses her predecessor’s opinion (January, 2003).
2004: A Deputy County Attorney announces in a meeting of the Salary Commission that “The mayor appoints deputies. The mayor appointed me.”
2005: The Planning Director tells the Charter Commission that he has eight “bosses” but that in reality the Mayor is his boss. He also implies that the Planning Commission played a nominal role in his appointment as director. Testimony from both the Director and the Commission Chairman indicate that the powers delegated to the Planning Commission have been to an extent “swallowed up” by the Director and the Mayor.
Appointing power is a major constituent element in the Charter with implications reaching well beyond the question of who appoints whom. How could one County Attorney claim that the Mayor has appointing power superseding that of department heads and the next County Attorney claim that the department head has the exclusive power to appoint department members? How could a Deputy of the second Attorney subsequently announce that the Mayor appoints deputies? How can the Planning Director take it for granted that “in reality the Mayor is my boss” when the Charter assigns his appointment to the Planning Commission specifically in order to protect him and the department from political interference? The Mayor’s responsibility is to see to it that the Department functions according to the Charter and the law—to supervise, not dictate.
Confusion concerning these issues stems partly from the mistaken assumption that government is organized and functions like a profit-making corporation in the private sector. But under the Charter government is not a hierarchy. The people are the “bosses” quite literally in that all government powers are delegated by the people, primarily through their Charter. Secondly, government powers are structured as countervailing powers and administrative powers are decentralized. Thirdly, and in some respects most important, corporations are driven by the need to make a profit, while the mandate of government is to serve the public interest. Power-sharing and countervailing power, not hierarchical and arbitrary power, best reflect government’s mandate to serve the public interest.
My next example illustrates how easy it is for politicians to manipulate and control Commissions, thus negating their delegated powers. I begin with the fact that neither the Salary Commission, which has a 2-year term, nor the Cost Control Commission (4-year term) has been appointed. These Commissions are unique in that terms are not staggered. It is a simple matter for Mayor and Council to neutralize them by not appointing them.
I previously outlined for the Charter Commission the problems associated with the Salary Commission (Article 29) and will not repeat that testimony here. I will make two points with reference to the Cost Control Commission. The failure to appoint the Commission (the appointments are almost 3 years overdue) is especially egregious not only with respect to the Commission’s important and wide-ranging mandate but also because the Charter Commission has been denied potentially valuable information that it is not likely to receive by other means or from other agencies.
A staggered-term Commission has the possibility of taking a stand and speaking up for itself (i.e. exercising countervailing power) if the need arises because it always has a quorum even if the politicians fail to make timely appointments. But Salary and Cost Control are deprived of this possibility because all are appointed together and their terms are not staggered. This is one defect that can be easily remedied with a Charter amendment.
It is also appropriate to look at the Ethics Board in this context. In my opinion, the failures to appoint mentioned above constitute nonfeasance, which is an impeachable offense (Sect. 23.13. Technical question: Is the “ethics commission” referenced in this section the same agency as the Ethics Board of Article 20?) The Ethics Board appears to have the power to initiate impeachment proceedings. But it also appears to me that Article 20 does not make clear the scope of the Board’s purview. For example, what is the connection between ethics and law? What can be stated with some certainty is that our elected officials show no fear of being charged with nonfeasance by the Ethics Board. Does this indicate a failure on the part of the Board or a deficiency in the Charter or both?
My final comments fall under the heading of “attitude.” A few years ago a council member told me that in the real world of County government lip service is paid to the Charter, but that all decision-making is political. Another councilman told me that the Mayor can do whatever she wants to do, regardless of what the Charter says. I have seen no reason to doubt that the attitude reflected in these comments is prevalent among the public and in government. A number of comments by officials in testimony before the Charter Commission reflect the same attitude.
I am aware that the Charter Commission is limited in its ability to influence this attitude. But the Commission can call attention to the attitude and take a stand regarding it. Secrecy and ignorance pave the way for arbitrary power, and I believe the Commission owes it to the people to publicize the facts when the arbitrary exercise of power or a breakdown in countervailing power is at issue. That is why I have emphasized open discussion of County government as a system of countervailing powers and advocated strengthening Commissions to perform their countervailing role.