Neighborhood Associations to Get Some Long Overdue Rules

There's an old saying I just made up that I think covers city council's move to shackle neighborhood associations - the best defense is a good defense. 

If you don't know what I'm talking about, read the proposed rewrite of the ordinance below.

Download Ordinance_DRAFT_Rewrite_12-5-2011[1]

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Here's a quick history on neighborhood associations.

Before Joe Wardy was mayor neighborhood associations were held to my father's single law of children - they are not to be seen or heard.  Wardy changed all that when he came into office when he mandated that neighborhood associations be recognized... coddled... empowered... it was a nightmare only people who had lived outside of El Paso knew of.  I think Wardy was the best mayor ever, but his neighborhood association stance was a bad thing. 

Once Wardy gave them a little recognition, it wasn't long until they morphed into the jackbooted political thugs they are now.  Thankfully somebody is doing something about it now.

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The proposed ordinance was born out of the successful recall initiated by Pastor Brown.  Pastor Brown isn't a neighborhood association, nor is he a "civic association" as mentioned in the ordinance - I understand that.  However, he provided the people on city council and the employees on the tenth floor of city hall with a trip down Worst Case Scenario Lane and it was an eye opening experience for them. 

Never had a recall been successful before Pastor Brown took down the mayor and two city council members.  That's an understatement... nobody had ever been within miles of recalling a city council member much less a mayor.  The idea that a recall could work was a funny joke on the tenth floor, a real knee slapper.  Then one day Pastor Brown made the joke quite unfunny.

Unfortunately for the mayor and many others, they are still convinced the only reason the recall was successful was because Pastor Brown allegedly broke the law.  While I do have to admit that some things they did now strike me as either on the line or crossing it, the bigger picture here is that thousands of people came forward to say they no longer want this guy as mayor.  For some reason Cook can't grasp the fact that no matter what may have been done wrong, it pales in comparison to the massive amount of people who decided they no longer wanted him to be mayor.  He thinks the problem here is a matter of political participation by a church group when it's obvious that it's his governance.  Well, obvious to everyone but him.  The car is missing its engine and he's worried about a bald tire. 

I can bet city council's initial reaction to the overwhelming success of the latest recall was to try and find a way to ban future recalls.  The rules had already been made favorable to people in office by narrowing the window considerably for when they can take place and how they take place, but getting rid of the practice all together was out of the question. 

Their second thought must have been to identify where the next recall may come from and then figure out a way to hamstring those groups.  This is how we got to this proposed ordinance rewrite.

Isn't government fun?  You'd never know it, but once in office politicians spend much of their time trying to figure how to make sure they are never made to leave. Why do you think congress passed a "campaign finance reform" bill that had only one goal - making it harder for people to run against incumbents.  Of course, you were told that they were trying to keep big money out of politics, but if you actually read the law and understood it, it allowed for ten times the amount of money to come into elections and go directly to incumbents instead of challengers.  One part of the law made it illegal for you to buy a billboard criticizing your member of congress! Yet, they swear they were thinking of YOU!

Anywho - back to the task at hand.

Neighborhood groups have become, as I noted above, nothing but bullies who threaten political recourse on any council member that doesn't do exactly what they say at exactly the moment they say it.  Because the reality of a successful recall is no longer a joke, city council needed to do something to protect themselves from these people.  So you have a rewrite of the ordinance governing neighborhood associations.

The most obvious change here is that ordinance is now banning neighborhood associations and civic associations from participating in politics.  What exactly this means is kind of vague, but I can tell you how it's going to be interpreted and these neighborhood association folks are going to have a fit once it's implemented. I take that back - they're probably having a fit right now, which makes me smile.

What happens now is that people involved in these neighborhood associations are going to have to be very careful about what hat they wear and when they wear it.  When addressing council on a zoning case they'll have their "neighborhood association representative" hat on.  When they don't get their way and they start the process of recalling their city council member, they better have their "regular citizen" hat on.  If they don't keep their hats policed just so, they could lose their neighborhood association status. 

I think this new rule is good and bad.  It's good because I do truly think that most of the neighborhood associations are way too political. 

I think it's bad because if you're a guy like Jim Tolbert and involved in a lot of things, your actions in reference to one issue may be applied to your work with your neighborhood association work on another issue and that will get them banned.

This is going to severely limit the political chatter that takes place within these groups.  I'm sure it will end their candidate forums as well.  Both of those situations are good for everyone involved. 

Some of you might say "this is limiting my rights! blah blah blah blah!"  The truth is that is not limiting anyone's right to vote or to form a neighborhood association.  All this ordinance is saying is that you get to have these certain privileges if you abide by these rules.  If you don't abide by the rules, you don't get these privileges.  Anyone can oppose a zoning change, you just can't do it as an officially recognized neighborhood association if your primary or secondary activities are political in nature as defined by the ordinance.  It's like saying you can be a Catholic priest and you can have sex, but you can't do both. 

What is going to happen once this rewrite is passed is that these neighborhood association leaders are going to have to make a decision. Do they like being the lead complainer for their neighborhood association?  Or, would they rather be a political organizer for their neighborhood?  Only one of those jobs lets you hang around city council poking your nose into places it probably doesn't belong and making impassioned speeches against real estate related progress in your neighborhood. 

This rule would have helped Councilwoman Acosta tremendously a few years back when the Cielo Vista Neighborhood Association threatened her with a recall if she didn't carry their water on the Three Legged Monkey issue.  She would have been able have their status as a neighborhood association revoked by the City Manager after they threatened her with political action.  At that point they would no longer have any official recognition by the city and that would have saved taxpayers millions in the end.  They would have been reduced to a group of loosely organized 911 abusers and faded off into obscurity.

I think that's probably the best example of why this is a good rewrite.  An even better rewrite would be stop recognizing any and all neighborhood associations.  Why? Because these groups rarely represent more than a few bored people in any given neighborhood even though they're supposed to have at least 15 members and two annual meetings along with a requirement that any stance they take on any issue in front of council or advisory board has to be announced as... well read the damn thing yourself ...

G. Establish and follow a clear method for reporting to the City actions which accurately reflect the recognized neighborhood association’s position on a matter that is the subject of a pending City Council agenda item. When the recognized neighborhood association presents its official position on the issue to the City, it shall identify whether the decision was reached by the board, a survey of the general membership, or by a vote at a general membership meeting, and the vote for and against the position.

I have been to a lot of city council meetings over the years and have heard a lot people representing neighborhood associations and I have never once heard any of them adhere to the above stated rule. I have never even heard them come close to following the rules stated above.  I can also tell you that no votes on these issues take place within the neighborhood association and I'd be shocked beyond belief if they have 15 active members that meet twice a year.  And since the neighborhood association representatives have a comment at every damn meeting, they must be having weekly association meetings to vote on their stance on each respective issue.  If they aren't, they're in violation.  And if they are in violation they need to have their status revoked!  An honest assessment would tell you that most of the people speaking on behalf a neighborhood association are actually speaking on behalf of themselves and abusing the recognition of their neighborhood association.

IF YOU'RE A DEVELOPER OR A REAL ESTATE PERSON OF ANY KIND YOU NEED TO READ THE NEXT WORDS ON THIS BLOG VERY CAREFULLY AND UNSERSTAND THEM.

The above rule got me to reading about what the revocation clause would say.  Item "G" is probably the one where my head started to spin.  It reads:

 B. The city manager or designee may revoke recognized neighborhood association status for one (1) year if the city manager or designee determines, upon receipt of a petition from the entity’s general membership, that a representative of the recognized neighborhood association knowingly made a material misrepresentation in materials or testimony provided in writing or at a public hearing on an applicant’s land use or development project.

This happens during 99 percent of the disputed land use, zoning or other related agenda items when a neighborhood association presents or speaks.  Flat out lies!  Not even well thought out ones a lot of times.  Yet, never once has the City Manager cut the speaker off and revoked their neighborhood association status.  This is a serious problem with neighborhood associations during all items dealing with zoning or development - they lie their asses off in order to try and get what they want because the laws on the books aren't in their favor.  These lies have cost people millions and it's not right that the city has never enforced the ordinance. 

I expect that the next time a developer gets railroaded by a pack lies from a neighborhood association that they will bring this part of the ordinance up.  If the city manager doesn't act they  should have a judge issue a writ of mandamus compelling the city to do its job and revoke their recognition of the association. 

Furthermore that item within the ordinance should be expanded to include lying about anything to the city in their official capacity as a neighborhood association.  That would have stopped the Three Legged Monkey debacle a few seconds after it started. 

So... I'm all wound up.  I'll take a breath here...

I think there's a clear opportunity here to hold these roving bands of thugs (neighborhood associations) to a higher standard so that they do not swing a heavier axe at the public tree than should be allowed by law.  They ought have to register as lobbyists and report their contacts with city officials just like the developers they're fighting have to do.  After all, aren't they fighting for what they consider a monetary gain - their property values?  I think so.

Commence arguing below.

Comments

[Carl Starr]

I read this and proposed ordinance quickly...I am not sure what David is saying but if unconstitutional yes, you can't regulate ragtag volunteer activists or even revolutionaries, [the 1950 SCOTUS case on Communist Party dealt with this] the whole ordinance is full of 1st Amendment issues re protected speech and expression.

[David k]

Carl,

You are not reading the ordinance correctly. And you are citing the wrong amendment

[Texaswoman]

If the City is taken to Court over this they will lose.

[Carl Starr]

I read it fast...it's re 'protected activity'...may very well be other amendment issues especially 14th

Another problem I see is lumping Neighborhood Assoc with Civic...Civic is very broad and can mean almost anything...

There is not many cases anywhere on Assoc below link is one of the few

I agree with Texaswoman, its unconstituional...I admit I read it fast but the whole time I was reading it I kept saying Jesus Christ...its just so obviously blatantly laden with constitutional issues.

"The formation of the Willow Tree Civic Association, even for the purpose of formally organizing the community against the plans of the plaintiffs, was constitutionally privileged."

http://pastebin.com/3Mie1RCM

[David K]

Carl & Texaswoman,

It is not "unconstitutional" because the constitution does not protect neighborhood associations, it protects individuals.

You guys are completely mixing things up here.

Neighborhood Associations - as recognized by the city for special privileges must do certain things and must NOT do other things. It's a pretty straight forward thing here and nobody is having their civil rights violated because their club must adhere to some rules if they want to be recognized.

If you argue that this rule is unconstitutional then the ban on churches retaining their nonprofit status AND participating in direct advocacy is unconstitutional - so you are either going to be with Pastor Brown here, or you are going to be against him - what is it going to be?

[Carl Starr]

Maybe I will read your writings more carefully David, I like that you are not afraid
to cite law as a fellow layperson but where I think this is headed is any misconception that the 1st Amendment only covers speech, the key is activity, to gather...expression.

[David K]

David K,

1st amendment does not cover political expression once it steps into organized advocacy. You can't call a campaign donation "expression."

Again, these people haven't been banned from participating in politics, they've been banned from using their civic organization as a political tool

[Carl Starr]

I also think the ordinance has prior restraint and content based issues...

A civic org's motivation cannot be a issue

"Since a campaign donation—unlike bags of cash delivered [*20] to the official himself—is protected First Amendment activity and, indeed, the normal course of politics in this country, due process requires that the potential campaign donor have notice of what sort of conduct is prohibited." United States v. Siegelman, 640 F.3d 1159, 1174 n.21 (11th Cir. 2011).

[Texaswoman]

Well if you read my post all I said was I believed that the City would lose if it went to court. I didn't say what the basis was for that opinion. Your assumption of what caused me to make said statement is probably based on your own concerns over the Constitutionality of said rules as you realize that there are indeed First Amendment concerns.

[Carl Starr]

http://pastebin.com/3Mie1RCM

All David or anyone has to do is read the above link to help
see 1st Amendment concerns.

[David K]

Texaswoman,

There are no "1st amendment concerns" with what the city is requiring. Zero - they are not limiting personal liberties in any way shape or form. The are simply outlining what a "recognized" neighborhood association can do.

You wouldn't know the constitution if you were beat over the head with it.

The city would lose no such lawsuit. A lawsuit won't even by filed because no lawyer in the world would take the case, despite what the armchair lawyer (Starr) claims.

There are plenty of practicing attorneys reading this blog and not a single one has made a peep about the constitutionality or the legality of the proposed amendment. You'd think you'd be smart enough to realize that it's you two and not another single person out of 7 billion that think there's a problem with the constitutionality of this ordinance... You might be wrong - again.

[Carl Starr]

I think the city can choose to recognize groups of 100 or more as stated in ordinance but that does not mean a group of 99 or 1 has any more less or more rights. The problem I see with the city boxing in the 1st Amendment with definitions is that they are vague and overbroad...to say a Neighborhood Association cannot be a 'political action group' and then define political action as 'support or opposition' to any INITIATIVE' chills 1st Amendment, the group with 99 would not barter away such rights ever. Same with part that says a 'political action group' cannot be a RECOGNIZED Neighborhood Association. All attempts to box in and unbox 'protected activity'.

The 1st Amendment battle is not over, no one can deny re the Mayor and Bar lawsuit, that 1st Amendment defenses have every right to be made. I realize the Mayor issue and Bar suit and the proposed ordinance are all different cases, but to me they all strike near 1st Amendment issues.

[Mark]

Dave, your points are valid to a degree but general at best.There are some good people involved in this process who just want their neighborhood cleaned up or preserved. There are a selected few you override the opportunity and give the process a bad name as you have pointed out. The rewrite is needed to give the ordinance teeth to those groups that take advantage of the process. Joe Wardy did this just for notification purposes. The problem is that some people cannot accept the fact that life is not fair and that sometimes you lose. Some politicians, builders and residents refuse to lose, which in turn has created these cases,threats and conflicts.

The intent was to build capacity at the neighborhood level, not play politics. Yes,in some cases, monsters have been created. They need to be exposed and removed from the process in order to allow honest and regular people the chance to improve and preserve their neighborhood.

[citizen]

Well said Mark. It's too bad that we end up revising ordinances because of a few malcontents that can't seem to follow the rules or understand the process and their place in that process.