For Good Government, Ideas Must Roam Freely

Many readers have likely had experiences similar to mine when it comes to sharing new concepts.  I’ll think through a thorny problem, find an alternative perspective to the conundrum, and use that perspective to find an unexpected solution.  But when I first share the idea, perhaps in a meeting where other’s thoughts are elsewhere, no one responds favorably.

However, a few days later, someone comes by my desk to acknowledge that there may be something in what I had said.  Over time, other folks grasp my way of thinking and the idea, likely edited and improved by the others, comes to be adopted.

Sometimes new concepts or ways of thinking can’t be transferred instantaneously, but need time to find fertile soil.  When I wrote about the Brown Act a few posts back, most recently here, I may have failed to adequately explain the extent to which the law can impede the flow of new and different ideas.

The obstruction is ironic because the intent of the Brown Act is to prevent secrets, specifically in the form of decisions made by public bodies away from the eyes of the public.  But an unintended side-effect is nonetheless to inhibit the flow of ideas.

The first time that a public official can share a novel idea or creative approach with the entire public body is when the matter is already under discussion in a public session.  The other officials may be focused on their own arguments and fail to recognize the value in the new suggestion.  And a couple of days later, when the penny finally drops, it’s too late to make a difference.  First, because the public body has already made a decision.  And second, because many public officials are unwilling to admit that they’ve changed their minds.

We often elect officials for their ability to bring creativity to the task of government.  But we then subject them to a set of rules that have the effect of putting a lamp shade over that creativity.

I have an anecdote from my long-ago past that can illustrate the problems that can result when the free flow of ideas is restricted.  It wasn’t a Brown Act situation, but provides some parallels.

In one of my Brown Act posts, I mentioned serving on the Design Review Committee for a large residential/recreational community in an Oregon community.  My involvement with the project was long and varied, extending nearly a decade from early concepts through entitlement to construction of many of the phases.

At the entitlement phase, there was a key question about project density.  Under Oregon law, a minimum density must be met.  Developers aren’t allowed to chew up large tracts of land without providing sufficient housing to meet the needs of the community.

Depending on the how the density was calculated, the project may have been short of the minimum density.  (Note: I’m not very proud to have been an integral part of a project that bumped against a minimum density standard.  However, bills must be paid.  Also, it’s possible, with clustered development, to have a relatively low density and still have a moderate level of walkability.  This project had elements of that potential, although the walkability never came to fruition due to later strategic decisions that were taken over my objections.  That’s a story for another time.)

To meet the minimum density standard, the development team constructed the argument that the golf course, which required a separate application, was a different land use and that the area occupied by the course should be excluded from the density calculation.  Part of the argument was that if the golf course were built now and the housing was entitled and built a decade hence, the density calculation wouldn’t include the golf course area, so why should it be included if the applications were simultaneous?  With that argument made, the minimum density was achieved.

Another aspect of the project was the need to modify the Urban Growth Boundary (UGB), which in Oregon is an action subject to review and approval by the state.  The team decided not to try to justify an expansion of the urban growth area.  Instead, we proposed a realignment of the boundary where it crossed the property, maintaining the same enclosed area, but configuring the UGB to accommodate the project configuration that best suited the proposed number of homes.

Another aspect of Oregon land use law that should be noted is the role of the hearings officer.  In California, the initial land use body is often the Planning Commission, with many decisions also requiring City Council concurrence.  But in Oregon, the Planning Commission is reserved for legislative and long-range planning issues.  Land-use applications are heard before a hearings officer, usually a local attorney with a land-use background.  And only appeals go to a City Council or County Commission, so the hearing officer is often the final word.

(I can see benefits to both the Oregon and California systems.  In California, the aesthetic judgment of the public is represented in a Planning Commission, but the logical cohesiveness of the process can be disrupted.  In Oregon, the hearing officer can be a stickler for the law, but project aesthetics are best raised through comments by the public.)

Also, an Oregon hearing officer is off-limits to the development team.  It might be possible in California to chat with a Planning Commissioner in the weeks before a hearing, but that type of contact is strictly prohibited in Oregon.  The opportunity for an effective meeting of minds is reduced.  And we had no opportunity to ensure in advance that he understood the density argument.

Thus, the big residential/recreational project went before a hearing officer.  There was opposition to the project.  Given the nature of the opposition, the team mentioned the density and UGB realignment arguments in passing, but reserved most of our presentation for addressing the concerns of the neighbors.

In the aftermath of the hearing, we thought we had done well, but could only await the decision from the hearing officer.  After a couple of anxious weeks, the decision was received.  The project was approved, but with conditions and modifications.

In particular, the hearing officer hadn’t grasped the argument about the golf course not counting in the density calculation.  In its place, he’d had a done an alternative computation.  (Even after twenty years, I still recall that he bumped the housing count from 529 to 676.)  And yet he’d approved the UGB realignment that had been configured to the smaller number, not giving the option to make adjustments to better accommodate his larger number.

In the subsequent team meeting, I presented the arguments that would support an appeal, first arguing that the original density calculation was correct and then arguing that, even if the hearing officer’s density was upheld, the developer should have been given the opportunity to adjust the proposed UGB.

The developer concurred with both arguments, but also knew that an appeal would take time and would be in front of the County Commission, so would involve educating new decision-makers.  In the end, he sighed and decided not to appeal, instead directing the team to find ways to add the additional housing units.

And so we did, adding a small-lot neighborhood, squeezing in a couple of townhome projects, and reducing the width of a number of larger lots.

The project did well, but the clunkiness of the density fix was occasionally noted.  In particular, potential upper-end buyers complained about the missing lot width, with some citing the lot width as their reason for not buying.

Flashing forward five years, I was continuing to work on the later stages of the project, but also had other projects, including an irrigation district that was pursuing funding for a water conservation project that would return water to the local river.  Among the potential funding sources was the federal government.

A newly-elected U.S. Senator wished to learn more about the project, so asked the district to give a tour to his local field representative.  I was asked to join the tour.  By chance, the field representative was the wife of the hearing officer from years earlier.

As we drove around the district, the field representative asked me about the other projects on which I was working.  I mentioned the residential/recreational project.

She responded. “I like that project, but keep hearing that the lots are too narrow.”

To which I replied, “You should ask your husband about that.”

She was surprised by the connection, so I gave a short explanation and considered the matter closed.  But a few weeks later, she and her husband attended a local minor league ballgame.  As part-owner of the team, I was greeting fans near the main gate, including the couple.  The hearing officer referenced the recent conversation and asked for more information.

And so it was, nearly five years after the hearing, that the hearing officer and I sat in adjoining boxes in a minor league ballpark talking about the fine points of the long-ago hearing.  Once he’d been briefed, he agreed with both of my points, that excluding the golf course from the original density calculation was correct and that, even if the density argument was rejected, the developer should still have been given an opportunity to adjust the UGB.

Of course, the horse was long since out of the barn and far down the road.  Perhaps one can argue that the project would have been more successful, generating more property tax revenue for the community, if the arguments had been understood on a timely basis.  But it’s equally possible that the only impact was that a few affluent home-buyers had a little less elbow-room than they might have wished.

But what happens if a similar communication failure occurs on an urban project, if a key element of walkability or transit access is omitted because the developer isn’t able to correct a misconception of the hearing body or if a public official has an inadequate opportunity to explain a new vision to his fellow officials?

We live in an increasingly complex world, where the accurate and comprehensive flow of information is key to making the world work well.  Whether it’s Oregon putting hearing officers in a bubble or California imposing the Brown Act on public officials, constrictions on the flow of information and ideas increase the possibility of weaker outcomes.  We should be constantly aware of that risk and looking for ways to minimize it.

In my New Year’s resolutions for this blog, I promised to look in depth at the specific issues of parking and senior living during 2014.  With fall upon us, it’s time to begin honoring those resolutions.  In my next post, I’ll begin a multi-post look at combining urbanism with senior housing.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (davealden53@comcast.net)

The Brown Act: Final Thoughts

Over recent posts, I’ve become ensnared by a daisy chain of subjects.  I argued in favor of the tax measures on November ballots in many communities.  My argument was “We built this stuff, we really should take care of it.”

That stance led me to a proactive argument against those who might argue that government doesn’t deserve more revenue because it’s inefficient.  My grounds for this second argument were that most human activities are inefficient and it’s unrealistic to ask government to exceed our own skills.  Besides, we ask government to do a number of tasks that are particularly prone to inefficiency.

From there, I nominated the Brown Act, California’s open meeting law, as a particular cause of government inefficiency, including an analogy and a handful of anecdotes to support my argument.

Today, I’ll conclude my thoughts on the Brown Act with a case history of open versus closed meetings, a silly result from the literal application of a Brown Act equivalent, and a timid suggestion about an alternative approach to the open meeting law.

Throughout these arguments, I’ve been explaining that, as an urbanist, I care about these issues because it’ll be harder to turn ourselves toward urbanism if we continue to hamstring government with ill-fitting laws and paltry revenue.  When we lack resources, we tend to stay in our rut, even when the rut is what is causing us to lack resources

To begin, I’ll offer a comparison of closed and open meetings.  I’m not suggesting that closed meetings are always the preferred solution.  I don’t believe that.  But closed meetings can sometimes work well.

Many years ago, while living in Oregon, I had a chance to observe two parallel organizations, one working under a closed meeting standard and the other under an open meeting process.

The first organization was the design review committee of a large residential/recreational community for which I was the lead consulting engineer.  In addition to my engineering duties, I also served on the design review committee.  In addition to me, the committee included a pair of architects and two homeowners who had experience in land-use planning and development.

The homeowner association rules called for the committee meetings to be closed.  We took full advantage, closing the doors to the conference room and engaging in two hours of vigorous discussion and debate.  Sometimes we got raucous, at other times we slid into political incorrectness, but I remain convinced that we did a fine job, often finding unexpected consensuses that made the project an architecturally distinguished place.

But, predictably, the homeowners affected by our process often disagreed with my assessment of our performance.  Homeowners proposing new homes believed that they could convince us to reduce the standards if only they could talk with us.  Neighbor adjoining proposed new homes believed that they could convince us to impose stricter standards if only they could talk with us.  Although their beliefs were diametrically opposed, they made common cause and approached the development president, asking for our meetings to become public.

There was an older, well-established destination resort a few miles from town.  It was a successful place, although the architecture was less distinguished than at my project.  Also, their design review meetings were open to the public.  So the president of my project asked a couple of committee members, including me, to attend one of their meetings.

It was an eye-opening experience.

The meeting room was well-filled.  As each home was announced, the homeowner, and perhaps also the architect, would speak in defense of the home design.  And then several neighbors would also speak, usually asking for design changes.

When the speakers were done and without any committee discussion, one of the committee members, the assignment seemed to rotate, would pull out a piece of paper, read off a grammatically concise but bureaucratically bland list of perhaps twenty proposed conditions.  The committee would then vote unanimously to approve the project.

I never learned the source of the list of conditions, whether the committee had met secretly beforehand to reach conclusions or whether staff has prepared the list.  But the effect was more poorly staged than an Eastern European show trial before the parting of the Iron Curtain.  The closed meetings at my project were resulting in more comprehensive design review and the results were evident on the ground.

Some will argue that committee debate could have followed public testimony and they’d be right.  But the closed meetings in which I participated needed two full hours.  The open meeting that I observed took about two-and-a-half hours.  Combining the two and adding an allowance for a more stilted debate in front of observers, a meeting time of more than five hours seemed likely, which is well beyond the endurance of most committee members and the observing public.  Nor do I think it would result in better decisions.  Indeed, I expect the reverse would have been true.

My companion and I reported our observations back to the president of my project and our meetings remained closed, at least for awhile longer.

I know this is only one comparative example, but even one data point is enough to establish that open meetings aren’t always better.

Brown Act-type rules can also lead to farce.

Later during my time in Oregon, I found myself as a participant in an impromptu theatre of the absurd because of the Oregon equivalent of the Brown Act.  (I don’t recall the name of the Oregon law, but it functioned much like California’s Brown Act.)

A good friend was an Oregon legislator.  He and his wife hosted an annual New Year’s Eve party which all the local politicos attended.

Late on New Year’s Eve 1999, I was deep in a conversation with the Oregon Secretary of State about alternative voting rules when my friend tapped me on the shoulder, asking me to babysit a County Commissioner.  Under Oregon law, a majority of any public body can’t simultaneously attend the same social event.  The local County Commission included only three members, so the limit was one Commissioner at a time.

A Commissioner, a particularly talkative and congenial sort, had been at the party since it began.  But a second Commissioner had now arrived.  The first Commissioner was heading toward the door, but might take several minutes to tell final stories and to offer final New Year’s wishes.  My friend wanted me to keep company with the second Commissioner on the front steps until the first Commissioner departed.

The newly-arrived Commissioner was a good friend and I was happy for the opportunity to chat with her.  But this was the high desert of Oregon at the end of December.  After a week of freezing temperatures and hoarfrost, the weather had finally begun to change in the hours before the party and a light snow was falling through the frost-laden trees.

And so I found myself chatting with a County Commissioner on the uncovered steps as the snow swirled around us.  Occasionally, we’d take a break to shake the flakes out of our hair and to brush the snow from each other’s shoulders.

Eventually, the first Commissioner exited the party, exchanging greetings but no political talk on the front steps, and we were allowed to enter the house.  I’ve often wondered if it truly would have been a violation if the second Commissioner and I had instead waited in the heated entry hall, but as is the case with open meeting laws, paranoia is often the governing standard.

Besides, neither of caught a cold and I collected a great anecdote about the absurdities to which open meeting rules can sometimes reduce us.

Before closing, it seems that I have should have an alternative approach to propose to the Brown Act.  But I don’t.  The Brown Act addresses a legitimate concern.  It does so in a heavy-handed fashion by which public officials seem to be presumed guilty immediately upon assuming office, but the concern about misbehavior remains legitimate.  Dismantling the Brown Act shouldn’t be an option.

But I’ll offer one timid and partial suggestion.  Perhaps the restriction on serial meetings can be lifted, with all officials allowed to communicate with all other officials.  However, those communications could be only via email, going through a server on which all communication can be viewed and searched by the public.  To learn the position of Councilmember Smith on a new parking standard, one could search for his emails on the subject.

Perhaps any public communication to the council could go through the same server, so the positions of one’s neighbors on the parking standard could also be checked.

I’m not arguing that this public email server would be a panacea.  Any communication through it would be awkward and stilted.  But it might be a marginal improvement over the current rules, and marginal improvements toward the cause of more efficient and effective government are worth pursuing.

With that, I’ll leave the Brown Act for now.

For my next post, I’ll also leave the upcoming election behind and return to my version of catnip, the subject that I just can’t seem to let alone.  Block parties.  I’ve been invited to one final end-of-the-summer block party in Petaluma and have been promised an interesting story about the organizers’ effort to get their party approved by the local authorities, which I plan to share.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (davealden53@comcast.net)

The Brown Act: An Analogy and a Couple of Anecdotes

In my last post, I began expounding on my theory that the Brown Act, California’s open meeting law, is a source of government inefficiency.  I wasn’t suggesting that open meetings are a bad idea, but only arguing the Brown Act, as it has come to be written and interpreted, results in a policy-making process that is less than optimal.

I also explained that an effective and efficient government is important to urbanists because government-adopted laws and policies are much of the reason drivable suburbia continues to dominate our landscape.  It will be hard to unwind the current paradigm and to turn toward urbanism if government is ineffectual.  And it will be even harder if government is chronically short of funds because the electorate is unwilling to fully fund a government that they find inefficient.

However, the burden of proof is on me.  I must convince the reader that my perspective on the Brown Act is legitimate.  I understand that I have a difficult task.  Having spent years on the outside looking in, I know that it’s difficult to grasp how being under the restrictions of the Brown Act can feel like being encased in a mummy bag made of fly paper.

And so, to make my case as best I can, I’ll rely on my old tools of analogy and anecdotes.  I know that they’re not the best tools of argument, but they’re probably the ones I wield best, especially on the slippery task before me.

For an analogy, I’ll ask the readers to consider a situation which they’ve likely experienced in their own lives, a family making a decision about a summer vacation.  Based on personal experience, the decision-making would be an extended and multi-tiered process.

Perhaps the idea of selecting a vacation destination would first be broached over a family dinner.  Over the next few weeks, family members would do their own research and pondering.  Perhaps a couple of family dinners would turn toward the topic.  And casual conversations in hallways or during commercial breaks while watching television might include attempts to find compromises or to build coalitions to support a particular destination.

By the time the subject is ripe for decision, probably again over a family dinner, the outlines of an acceptable consensus would be well-known.  After a verbal free-for-all with interjections and interruptions, and perhaps with a few last concessions or tweaks, a vacation plan would adopted that would please almost everyone.

Now, consider the same process if the Brown Act applied to families.  The initial raising of the question of destination could be done only if all family members had adequate advance notice of the topic.

Individual research would still be allowed, but results could be shared with fewer than half of the family members.

Casual conversations on the topic would be permitted, but might be constrained, with family members concerned that conversations might be relayed to enough other family members that a forbidden serial conversation would result.

And chats during commercial breaks while watching television would be inconceivable because group watching would be disallowed as a non-public meeting.

And when the evening of the decision finally arrived, the dinner table would be observed by scores of strangers and rolling cameras.  Any final debate would be subject to the control of the family chair/parent.  Interruptions and interjections would be prohibited.  Family members might make effective arguments, but some members would be paying more attention to the notes on their intended arguments than to the arguments being made.  Some members might be tempted to be swayed, but would be fearful of being accused of “flip-flopping”.

A decision would still be reached and most years it would be a mostly reasonable decision, but without the carefully tuned nuances which a more natural process would have produced.  And every few years the family would be halfway to the Badlands of South Dakota before realizing that everyone in the car would have preferred to go to Disney World.

If you haven’t worked under the Brown Act, you may find this a caricature.  You’d be wrong.  A cousin, the same one who provided an economics explanation of government inefficiency for an earlier post, responded to my last post with her experience of being a school board member in the California foothills.

During her tenure on the board, she pushed for a new school district policy for several months, feeling that it would improve the educational experience.

The policy finally reached the school board for approval.  But a pair of other school board members had objections.  My cousin would have been happy to accommodate the objections within the proposed policy, but was unable to convey that flexibility during the stilted give-and-take of a board meeting.  The policy was defeated.  A couple of brief cloakroom conversations during the run-up to the meeting would have permitted the policy to be approved, but the Brown Act didn’t allow the option.

Closer to the North Bay, I sit on several City of Petaluma committees.  One of them recently adopted a new policy for another type of oversight by committee members.  A short time later, I found an article in a national email newsletter strongly endorsing the type of policy that we had adopted and suggesting guidelines for effective implementation.

In a non-Brown Act world, I would have immediately sent a link to the other committee members, congratulating them on the wisdom of their action and encouraging them to read the suggestions.  But the Brown Act instead forced me to send the link to the staff person who serves as committee liaison.  He forwarded it to the committee, but the impact was lessened.

On another committee, I was recently chatting with another member on the dais before a meeting.  She’d been pushing for a new policy by which resources could be more effectively targeted toward public needs.  I agreed with her suggestion, so we were quietly discussing strategy.  But then another member tried to join the conversation.  As the committee has seven members, a third participant in the conversation didn’t seem to violate the Brown Act.

But that night, we only expected to have five members in attendance, so three became a majority.  It suddenly became a grey area under the Brown Act.  A good general guideline under the Brown Act is to stay away from grey areas, so I called a halt to the conversation.  And a little bit of momentum slipped away.

I’ve likely claimed enough of your attention for one day.  But I’m not yet done.  In my next post, I’ll conclude the Brown Act discussion with an example of open versus non-open meetings, an anecdote about the silly situations which the Brown Act can create, and a thought about how to protect the goals of the Brown Act while also allowing more efficient government.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (davealden53@comcast.net)

Government Inefficiency: Ralph M. Brown Isn’t Blameless

In recent weeks, I’ve been writing about the upcoming elections, including the tax measures on many ballots that would buttress municipal solvency in the aftermath of the great recession.  Among my subjects was a pre-emptive argument against those who would offer government inefficiency as grounds for voting against tax measures.

My urbanist reason for defending government is that we need an effective and adequately-funded government if we’re to abandon the reigning land-use paradigm and to move toward one that is more environmentally and financially sustainable.

In the previous post, I argued that it wasn’t fair to blame government for inefficiency when most households and corporations are similarly inefficient.  A well-educated reader, who also happens to be a cousin, added her explanation that the types of services provided by government, most of which aren’t suited to private enterprise, are prone by their nature to be inefficient.

But that post didn’t exhaust the topic of government inefficiency.  At least in California, there is one more cause of inefficiency that justifies its own discussion.  That cause is the Brown Act.

 Originally proposed in 1953 by Assemblymember Ralph M. Brown, the Brown Act has a laudable goal.  As described by Wikipedia, that goal is to guarantee “the public’s right to attend and participate in meetings of local legislative bodies.”  I can’t imagine anyone arguing against that goal.

And it’s true that the Brown Act fills a need.  A reader has been emailing me about a land-use action near his home in Pennsylvania, where the Town Council refused to let the public review application documents for a new big box until thirty days after the Council gave its approval.  Not thirty days before, but thirty days after.  The public was barred from examining the site plans, traffic study, etc. even as the Council was voting.  The Brown Act prevents that abuse of power in California.

Also, given that at least four members of the California Legislature are currently facing criminal charges, I can’t reasonably argue that public officials are as pure as driven snow, so some level of regulation is appropriate.

However, the Brown Act has expanded greatly since 1953, restricting more and more of the conduct of public officials.  I expect that each expansions seemed reasonable on its own, but the result of the gradual accumulation of rules has been to strip elected and appointed officials of many of the tools of effective government.

An email to a majority of fellow members of a public board encouraging a course of action?  Banned.  Phone calls to the same folks suggesting an alternative perspective on a knotty problem?   Banned.  A casual conversation between the same people at a public function?  Banned.  And many public officials stay even further away from the strict prohibitions of the Brown Act for fear of being inadvertently implicated in a violation, such as an email to a fellow public official that the other official forwards to the entire body.

In the U.S., we embrace the stories of Daniel Webster, Henry Clay, and Everett Dirksen imagining new problem-solving strategies and then honing those strategies and building consensuses by combining grand oratory with cloakroom cajoling.  But as much as we honor that model, we reject it in our contemporary world.

In place of the reasoned debate which the founders of democracy considered essential to effective government, the Brown Act largely results in public officials sitting on a dais exchanging lists of platitudes and only rarely engaging in substantive discussion.  Anyone who has attended a city council or board of supervisors meeting should be familiar with the stilted and unproductive communication style.

Under the contemporary governance model, many decisions are reached through private study, followed by a public hearing during which citizens speak to officials whose minds are largely made up, a “discussion” that is largely comprised of officials talking past each other with bullet point lists, and a perfunctory vote.  There are still the moments when good ideas and effective compromises fight through the debris of process and rise to the surface, but those moments are few.

With the public officials restricted in their ability to construct solutions, much of the responsibility for promoting new ideas and strategies moves to municipal staff.  However, staff members have their own restrictions.

I find most staff members to be reasonable and trustworthy folks.  A city employee I knew in another state used a “childcare rule” for judging those with whom she worked.  Before engaging with someone, she would ask herself whether she’d be willing to entrust her child to the person and would let the answer govern her conduct.  I find the rule reasonable and have often invoked it in my own dealings.  And I find that I generally have more trust in staff members than in public officials.

However, staff people aren’t always the right folks to be on the leading edge of change.  Historically, job preservation has always been a concern among staff members, many of whom are trying to put down roots in a community.  And pension reform only makes the situation worse.  An extended period between employment positions covered by a municipal pension plan can result in loss of pension benefits, which discourages staff members from being mavericks.

So we’ve created a world in which the long-term success of our communities demands that we consider alternative land-use strategies and yet we’ve created financial incentives for public staff to not rock the boat and restricted the tools with which public officials can push for change.  If we were to set ourselves the goal of creating a system in which a flawed status quo survives despite its deficiencies, we could hardly have done better.

I’ve always believed in the dicta that criticism should be constructive, combining suggestions for improvement with disapproval of the current situation.  However, I struggle for ideas about reducing the stranglehold of the Brown Act.  But I’m open to ideas from readers.  In my next post, I’ll describe a few anecdotes from my experiences with the Brown Act and also perhaps share some newly-received thoughts about improvements.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (davealden53@comcast.net)