The Vanguard last week juxtaposed the quiet passage of the MOUs last week against the tumultuous debate and discussion that took place on the same topics back in 2009 and 2010. One the one hand, I think Councilmember Swanson has a point when she said, “We’re a different council, we’re in a different time.”
Councilmember Swanson said, “If you look at those, not only were they contentious for their point of view, they also got very personal and it very much came down to who had the higher moral ground.”
“That is not the case here,” she said. “This is the case that you have five intelligent caring committed ethical people who simply have a different perspective at this particular point in time on this particular issue.”
I certainly was not expecting a repeat of a screaming match between Ruth Asmundson and Sue Greenwald, which led to regional attention. Isn’t there a middle ground here that we could find, where we can state our views and agree to disagree?
Where I think I disagree with the councilmember the most is the notion, as she it put it, “To have pulled it Tuesday would have been to talk about arguably why is one side right and the other side wrong.” She added, “Frankly there’s too much respect for our colleagues between all of us to do that.”
If there’s too much respect among the councilmembers to do that, then what is the problem with pulling to item to explain to the public why they think having a COLA (Cost-of-Living Adjustment) now is a good idea and how they believe they can pay for it?
A democratic governance requires that we take actions in full public view so that there is transparency and scrutiny. While we have decided that some actions have to be taken behind closed doors to protect the privacy of employees or others, we have rightly forced public bodies to approve MOUs and collective bargaining agreements in public where they can be scrutinized and the council or elected body must explain to the public their rationale.
This process was short-circuited in this instance.
Dissent has a long and cherished history in this country. In fact, dissenting opinions have been institutionalized into things like court decisions.
On May 18, 1896, the US Supreme Court in a 7-1 decision (with one justice absent) on Plessy v. Ferguson rejected the arguments of the plaintiff who argued that Mr. Plessy’s rights under the Thirteenth and Fourteenth Amendments had been violated.
The court majority would reject the view that Louisiana law separating accommodations for the races implied any inferiority of blacks, in violation of the Fourteenth Amendment. Instead, it ruled that the law merely separated the two races as a matter of public policy.
Justice Brown declared, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
However, Justice John Marshall Harlan dissented in Plessy. He wrote, “But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….”
It was this view that was ultimately vindicated in 1954, when a unanimous Supreme Court overturned Plessy in the seminal case, Brown v. Board of Education. Justice Harlan’s thought did not win the day in 1896, but 58 years later was vindicated when that ruling was overturned.
As David Cole, writing this October in the Washington Post, put it with regards to Supreme Court decisions: “Whatever five justices agree to, by definition, becomes law. A dissent’s only influence, by contrast, depends on its ability to articulate a more appealing vision of what the law should be.”
He goes on to say, “Majority opinions are exercises in power; dissents are appeals to our better judgment. The majority prevails, but the dissenter’s role is by far the more romantic; it is the work of the individual who, on principle, stands against the crowd. While precedent demands that justices follow the law, we celebrate as great those who departed from precedent as lone dissenting voices and ultimately saw their views adopted into law. We assign authority to the majority, but we valorize the dissenter.”
Like a Supreme Court’s majority opinion, the city council’s three members’ decision has the force of law, regardless of whether it is well-reasoned or argued. But, unlike the Supreme Court, we expect our local elected officials to have good sound reasoning behind their decision. While at the end of the day we can agree to agree or disagree, knowing that the council had a solid basis for their decision gives us trust and peace of mind even when we disagree.
To me, that trust was violated last Tuesday, not because I think the council is wrong on their vote – even though I may, but rather because they failed at the most basic level to offer justification for that vote.
Because they failed to articulate their reasoning before the public, they have failed in their most basic duties as a council – to make their decisions as transparent as possible.
—David M. Greenwald reporting