Amendments, Canaries, Coal Mines

The Scene from Whitewater, Wisconsin

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I wrote yesterday about two proposed amendments to Whitewater’s Landmarks Commission ordinances (Items O-1 and O-2 on the 10.3.17 Council agenda). See Amendments Concerning the Landmarks Commission. Last night, Council unanimously passed O-1, and amendment O-2 died for lack of a second vote to move consideration of it.

A few quick points about all this – and what it likely says about more serious matters.

1. Contentious, Not Dangerous. The most important point about the proceedings last night is that they may have been the consequence of disputes and contentions over a challenge to the Landmarks Commission’s authority, but there was nothing of danger in any of this. These were not matters of public safety, where lives and property might be immediately and grievously threatened.

That’s why it made sense to let the matter unspool on its own, ending yesterday’s post on the subject with ‘We’ll see.’ Nothing was at risk by waiting and watching without further comment. Indeed, one sometimes observes the course of an event for months before writing on it.

2. A Preference Against Change. All considered – all meaning events both near and far – I wouldn’t have proposed any changes to these existing ordinances. There are ordinances and policies in Whitewater I’d like to see changed; the existing Landmarks provisions of our municipal code would not have been among them.

3. A Protest. This may not have been my cause, so to speak, but it’s encouraging to see a pre-meeting protest before City Hall. Old Whitewater (a state of mind, rather than a person or chronological age) has for years expected a heads-down-eyes-averted approach to town notables’ ideas and actions. There’s never been a reason for that in an American town, that don’t-you-know-who-I-am expectation of self-declared leading figures. (No one should yield to imposed expectations like that.)

Residents in Whitewater can protest without the sky falling. Actually, they just did, last night.

4. Sharp Residents, All Around Us. Whitewater’s filled with sharp people. All communities are — society wouldn’t be able to function without large majorities of capable people performing myriad challenging tasks each day. Critiques are seldom if ever about intelligence (it’s not in question); critiques are typically over perspective, over ways of learning to see things.

5. Item O-1. Item O-1 was the more interesting, although the less contentious, of the two proposed amendments. Consider Section 1 of the amendment:

SECTION 1. Whitewater Municipal Code Chapter 17.12, Designation of Landmarks,
Landmark Sites and Historic Districts is hereby amended as follows:
Sub-Section 17.12.040 (e) is created to read:

Before the Landmarks Commission explores a city owned property as a
potential landmark, the Commission shall notify the City Manager with a
notice of intent….

There one finds a simple error of drafting, that might easily have been avoided, and if avoided, would have produced a far better amendment.

“Before the Landmarks Commission explores….” The obvious point is that explores is so nebulous and susceptible of multiple meanings that it’s too vague to be in a properly worded ordinance. Indeed, explores is nowhere present in Whitewater’s Municipal Code, not once in usage, let alone as a definition.

One knows what it means to explore (Roald Amundsen reaching the South Pole comes to mind), but that definition of exploration is inapplicable here. Does explore mean first to think about the matter, to raise the subject, first to debate it as a commission, first to vote on it, etc.? One sees the point: explores cannot mean never consider – because if one does not consider at all, how is one to contemplate what might be a desirable proposal for the commission?

An ordinance isn’t merely for the moment, but for years yet to come, when those now part of a present question or controversy have long passed from the political scene. The ordinance has to be clear for them, too. Explores doesn’t offer the clear definition that an ordinance needs to be enduringly useful.

Note what this means: a clear definition is in everyone’s interest, to prevent future uncertainty and disputes that would arise from it.

6. An Easy Fix. Instead of explores, one would set the trigger of notifying Council to a specific, concrete event: before the commission votes on any proposal, after a single meeting’s discussion but before any other action, etc. There are many possibilities that would make the ordinance clearer, and so more useful to avoid disputes now and in the future (when new members have to look at these provisions with fresh eyes).

7. Why Someone Writes This Way. Someone writes this way (using explores) to come to a consensus between parties in the present – to find language that satisfies them. That’s the important work of conflict resolution, to be sure. It’s not an easy task – it is an admirable one. One could easily list city officials who would be skilled at conflict resolution. That contention isn’t meant as a backhanded compliment – it’s acknowledge meant to a vital skill.

It’s just that – as with so many divisions of labor – it’s not the only skill that matters. Someone else on council or in the local government, not part of a conflict-resolution outreach, should have been able to see that the ordinance needed improvement, to make it an even better expression of the parties’ and city’s interests.

Perhaps there was a concern that, having reached a solution, it was risky to offer further suggestions that might upset that immediate solution. That’s too cautious – having gone so far, one could have gone a bit farther (and done even better) by showing what good drafting can do.

8. Canaries, Coal Mines. So why a picture of a canary in a coal mine? Because after this present dispute fades, there will still be a need in this community for public and private institutions to develop a stronger grasp of risk and opportunities under the law. City, school district, university – this community doesn’t have a professional class that inculcates in its members an correct understanding of what’s possible and what’s not.

Like the ACLU (of which I am a member), this libertarian has no interest in representing government’s interests. (Government is the one client the ACLU never represents.) There are many people in the city who can care for government’s interests ably, if only they’d broaden their perspective, beyond the immediate and transitory.

There are many reasons for this lacking: a smaller number of transactions in a small town, a small professional class (of any profession), a distance from a plaintiff’s bar that would otherwise be noticing events even more closely (than a few ADA deficiencies) on which to litigate, etc.

Draft amendment O-1 is a like a sentinel species, a canary in a coal mine. Its condition – its quality of drafting, in this case – tells something worrying about what may lie ahead, if one looks farther, and deeper, into the workings of the community’s principal public institutions.

As one would always prefer sound workings over unsound ones, there’s reason for concern.