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The Supreme Court, Constitution and Democracy

High Court Mystique is Shattered
Nicholas Johnson
The Gazette, February 16, 2022, p. A7
Who finally decides what is “the law”? The Supreme Court.

Justice Robert Jackson once conceded, “We are not final because we are infallible, but we are infallible because we are final.”

Politicizing an impartial Court weakens our democracy.

Imagine as many as 30,000 parts, precisely engineered, manufactured, and delivered. If properly installed and maintained, they can become what you call “my car.”

Our democracy is also a creation of many parts.

At its base are what Alexis de Tocqueville [Democracy in America, 1835] called “associations.” We are volunteers in over a million non-profits and informal gatherings, from union locals and church congregations to clubs for gardening or playing bridge.

Next are the institutions I’ve called the Columns of Democracy, such as public schools and libraries to educate us; independent investigative journalism to inform us; networks from highways to broadband to promote our e pluribus unum; culminating in an expanding electorate and ever easier voting.

Of course, as Columbo might say, “There’s just one more thing.” The judiciary.

Most of our behavior is moderated not by laws but by norms, such as “Iowa nice.” There are norms for resolving most disputes. But occasionally, whether in business or in marriage, we just can’t “work it out.”

One approach used to be the challenge to a duel or some other form of homicide. Or maybe a war.

Another is like fighting siblings going to one or both parents to settle a dispute. We realize we need a resolution and agree to accept the decision of an arbitrator or judge.

And if 94 federal district and 13 appellate courts don’t agree about “the law”? We ask our “parents,” the Supreme Court, to hear our case.

Unlike the politicized executive and legislative branches, the Constitution gives justices life tenure, in part, to create a politically nonpartisan, impartial Court. In selecting which cases to hear, it may reject those turning on a “political question.”

With no access to military force, the Court needs more than finality and impartiality for public acceptance of its infallibility. It needs some mystique.

Like the building.

I served as Justice Hugo Black’s law clerk. My first day my wife needed the car and drove me to work. When she pulled up in front of the Supreme Court, our wide-eyed, disbelieving daughter, Julie, asked incredulously, “Daddy, you work in there?!” (Not incidentally, as I recall, there were no “partisan” conversations among clerks or justices during my year.) [Photo credit: U.S. Supreme Court.]

It’s not just the building’s exterior. There’s also the marble, high ceilings, hallway gates, black robes, the curtain dramatizing justices entrance into an imposing courtroom, the bench well above lawyers and audience, the secret justices-only “conference.”

Now politicians, journalists, public – and even justices’ behavior – are treating the Court’s justices as a third political branch (“liberal,” “conservative”). It’s as if they were throwing rocks, shattering the mystique and grand vision of the Constitution’s drafters.

Who’s left to be infallible? Only authoritarians?
____________
Nicholas Johnson clerked for Justice Hugo Black and is the author of Columns of Democracy. Contact mailbox@nicholasjohnson.org
# # #
SOURCES Infallible because we are final. Deborah Rhode, “Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation,” Oxford University Press, https://epdf.pub/ethics-in-practice-lawyers-roles-responsibilities-and-regulation.html (“An observation by Justice Robert Jackson applies to judges generally: ‘We are not final because we are infallible, but we are infallible because we are final.’” Brown v. Allen, 344 U.S. 443, 532, 540 (1953) (Mr. Justice Jackson, concurring). 10. See, e.g., 28 U.S.C. Sec. 455; and American Bar Association, Model Code of Judicial Ethics.”)

30,000 car parts. Nicole Wakelin, “How Many Parts Are In A Car?” NAPA Know How Blog, July 2, 2021, https://knowhow.napaonline.com/how-many-parts-are-in-a-car/ (“The exact number of parts in a car varies widely from car to car, but what’s the average? Typically, you can expect that there are about 30,000 parts in your car, from the tiniest nuts and bolts to the engine block.”)

Civic Society. Alexis de Tocqueville, Democracy in America (1835)

Steve Hoenisch, “The Relation Between Civic Society and Newspapers in the Writings of Alexis de Tocqueville and Robert Putnam,” criticism.com, https://www.criticism.com/md/putnam1.html

“Associations Matter,” The Center for Association Leadership, 2012, http://www.thepowerofa.org/wp-content/uploads/2012/03/Associations-Matter-FINAL.pdf

Columbo. Columbo, Wikipedia, https://en.wikipedia.org/wiki/Columbo (“Columbo is an American crime drama television series starring Peter Falk as Columbo, a homicide detective with the Los Angeles Police Department. … He often leaves a room only to return with the catchphrase "Just one more thing" to ask a critical question.”)

Number of federal district and circuit courts. Offices of the United States Attorneys, “Introduction To The Federal Court System,” https://www.justice.gov/usao/justice-101/federal-courts (“There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.”)

“Political Question” Doctrine. “Political Question Doctrine,” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/political_question_doctrine (“Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.”)

Court as Third Political Branch. Jeffrey Rosen, “The Court Loses Its Chief Pragmatist; With the upcoming retirement of Justice Stephen Breyer, the country moves into a more ideologically divided future,” The Atlantic, January 26, 2022, https://www.theatlantic.com/ideas/archive/2022/01/stephen-breyer-retirement-supreme-court-biden/619331/

“Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement; 84% say justices should not bring their political views into decisions,” Pew Research Center, Feb. 2, 2022, https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/ (from August 2020 to January 2022, approval of Court dropped from 70% favorable to 54%; lowest in 40 years)

# # #   Additional Related Material Not Used Directly

Today’s court justices: name, BDY, year appointed, home, law school: https://ballotpedia.org/Supreme_Court_of_the_United_States

Google search: "Supreme Court" AND (political OR politics)

Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the job of determining whether acts of Congress are constitutional and what must be done if government is faced with the things that are done on the contrary of the Constitution.

Why is Federalist 51 important? Government Must Furnish the Proper Checks and Balances Between the Different Departments.” Madison wrote Federalist 51 to explain how separation of powers with checks and balances protects liberty. Madison borrowed the concept of separation of powers from Montesquieu, a French political philosopher.Sep 6, 2011

Federalist No 81 - The Avalon Projecthttps://avalon.law.yale.edu › fed81 The Federalist Papers : No. 81 ... But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.

Supreme Court of the United Stateshttps://www.supremecourt.gov › DocketPDFPDF Jan 31, 2019 — to the United States Court of Appeals for the Federal Circuit ... Madison James, Federalist 47, THE FEDERALIST. PAPERS. 25 pages

ABA’s “landmark cases” - https://www.americanbar.org/groups/public_education/programs/constitution_day/landmark-cases/

Lifetime appointments related to non-political decisions - Hamilton's main point in Federalist #78 is that a lifetime appointment will give Federal Justices the ability to work objectively on behalf of the people. If they were to seek reelection, they might act in bad faith in an effort to retain the office. May 1, 2020 Lifetime Appointments for the Court - Federalist #78 - Founder ...

Google search - "Constitutional Convention" 1787 (judges OR "judicial branch" OR judiciary OR "supreme court")

Debate from the Constitutional Convention regarding the function of the judiciary (July 21, 1787) - https://www.thirteen.org/wnet/supremecourt/democracy/sources_document5.html

See also: https://www.thirteen.org/wnet/supremecourt/democracy/sources.html

# # #

Law, Social Norms and Trump

"That's not nice. Next"
When I was a very young boy, and my mother was making a meal, or otherwise engaged, I'm told she'd turn to anyone handy and say, "Go find Nicky; see what he is doing and tell him to stop it."

That's how more and more traditional Republicans -- and Americans generally -- are coming to feel about Donald Trump.

The week of September 25 was a good example, from his ignoring advice on how to minimize self-inflicted harm during the Monday night debate with Hillary Clinton to his pre-dawn Twitter tirade Friday attacking Alicia Machado (the former Miss Universe).

"There ought to be a law," you say. But there's not.

Abraham Maslow may not have realized it, but he said something relevant to first-year law students when he observed, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." Many of those law students are too quickly tempted to start thinking of all human behavior as a product of legal rights and responsibilities.

There are a number of Trump's controversies that may have legal significance. David A. Graham has listed 19 in a recent Atlantic article: The Beauty Pageant Scandals, Racial Housing Discrimination, Mafia Ties, Trump University, Tenant Intimidation, The Four Bankruptcies, The Undocumented Polish Workers, Alleged Marital Rape, Breaking Casino Rules, Antitrust Violations, Condo Hotel Shenanigans, Corey Lewandowski [former campaign manager], Suing Journalist Tim O'Brien for Libel, Refusing to Pay Workers and Contractors, Trump Institute, Buying Up His Own Books, Undocumented Models, The Trump Foundation, and The Cuban Embargo. (For each he provides "where and when," "the dirt," "the upshot," and "read more.") David A. Graham, "The Many Scandals of Donald Trump: A Cheat Sheet," The Atlantic, September 30, 2016.

But like the law students, we would be wrong to assume our only means of corralling the wild Trump involves courts, judges and lawyers.

Whether we are conscious of it or not, most of what regulates our behavior, to the extent anything does, is not the law as such, but rather social norms: what we eat and how we eat it; the distance we maintain when standing and talking to another; the clothes we do (or don't) wear for various locations, occasions and situations; the verbal and body language we employ when talking to contemporaries or supervisors. Most social norms are unwritten and evolve over time. Some come from our parents, our friends and neighbors in a small community, a religious organization, or our fellow workers at a university or business.

Just as there are penalties for violating the law, so too are there penalties for violating social norms -- including what the community may consider inappropriate speech. (See, Nicholas Johnson, "Was It Something I Said? General Semantics, the Outspoken Seven, and the Unacceptable Remark," October 30, 2010.) Is this a possible course for those concerned about Trump's hateful outbursts? It just may be.

In the summer of 1969, when the Los Angeles creative community -- actors, writers, directors, producers -- became concerned about what some of them thought of as "censorship" of their work by the networks, the FCC eventually agreed to hold a hearing on the matter. The witnesses who appeared were mostly white, male, network lawyers and lobbyists in suits.

The last one to appear was decidedly not a member of that club. It was my friend, Emmy and Grammy winner Mason Williams, head writer for the "Smothers Brothers Comedy Hour," a highly-rated CBS variety program with social and political content. Given the 1960s, Tom and Dick Smothers had generated both a large, loyal following of fans, and significant levels of network executives' anxiety -- anxiety that took the form of New York executives' close review and removal of some portions of the scripts created in LA.

Mason arrived with open shirt and beads, carrying a guitar, and copies for the FCC commissioners of what he called "The Mason Williams FCC Rapport," July 23, 1969. As he played and sang his way through his testimony he read from his "Rapport" some of the brain-bursts he'd entered in his journals (e.g., "Network television wants to keep you stupid so you'll watch it;" "Winning an Emmy from television is like getting a kiss from someone with bad breath"). [Photo credit: Wikipedia, public domain, Ken Kragen & Friends; Mason Williams, 1969.]

One of those brain-bursts, relevant to Donald Trump's speech, posited that someone had leveled an offensive and possibly erroneous charge against the President. (I won't repeat the offensive speech here. It can be found at page 66 of the "Rapport.") Rather than a network censoring the remark, Williams said:

Someday I hope that someone could appear on television and say [the offensive speech] and the public would individually be able to say, "That's not right. And that's not a nice thing to say. Next."

In other words, rather than have the FCC and networks censor creative content speech that violates social norms could be uttered, because society would have evolved to the point that we would simply reject it -- "that's not a nice thing to say" -- and either change channels, or go on to the next item, with the command, "Next."

Have we reached that point? Hardly. Indeed, many are concerned, as I am, that Trump's approach to political campaigning may be seen as a new normal by both the young and those with sufficient celebrity status to consider running for office themselves with a Trump-like campaign.

But there are hopeful signs that social norms regarding speech are beginning to join the other objections to Trump's candidacy -- his lack of political and governing experience, the character of his staff choices (some of whom had to be replaced), his policy proposals (e.g., building the wall, deporting 11 million, use of nuclear weapons), his untruthful utterances, his refusal to reveal his tax returns, and the 19 items involving his business practices noted above.

One source of those signs is what some solidly Republican newspapers have been writing in the course of not endorsing him:

The Dallas Morning News, which has never endorsed a Democratic Party presidential candidate since 1940, wrote: "We reject the politics of personal destruction. . . . He [Trump] plays on fear — exploiting base instincts of xenophobia, racism and misogyny — to bring out the worst in all of us, rather than the best." Editorial, "We Recommend Hillary Clinton for President," The Dallas Morning News, September 7, 2016.

A couple weeks later the Cincinnati Enquirer, which had never endorsed a Democratic Party presidential candidate since 1916, joined the Dallas Morning News with its endorsement of Hillary: "We've condemned his childish insults; offensive remarks to women, Hispanics and African-Americans; and the way he has played on many Americans' fears and prejudices to further himself politically. . . . Trump tears our country and many of its people down with his words so that he can build himself up. Trump has toned down his divisive rhetoric, . . .. But going two weeks without saying something misogynistic, racist or xenophobic is hardly a qualification for the most important job in the world. Why should anyone believe that a Trump presidency would look markedly different from his offensive, erratic, stance-shifting presidential campaign?" Editorial, "It Has to be Hillary Clinton," Cincinnati Enquirer, September 23, 2016

More would come in rapid order. The Arizona Republic, which has never endorsed a Democratic Party presidential candidate since it began publication in 1890 (as The Arizona Republican), wrote: "Trump mocked a reporter’s physical handicap. Picked a fight with a Gold Star family. Insulted POWs. Suggested a Latino judge can’t be fair because of his heritage. Proposed banning Muslim immigration. Each of those comments show a stunning lack of human decency, empathy and respect. Taken together they reveal a candidate who doesn’t grasp our national ideals. . . . She [Hillary Clinton] can move us beyond rancor and incivility." Editorial, "Endorsement: Hillary Clinton is the Only Choice to Move America Ahead," The Arizona Republic, September 27, 2016.

Here's what The Detroit News had to say: "[Donald Trump] rubs hard against the editorial board’s values as conservatives and Americans. [He] is unprincipled, unstable and quite possibly dangerous. .... Trump has attracted support from too many of those who represent the worst of human nature .... Few groups have been spared from his bile. . . . But the most worrisome thing about Trump is that he is willing to stir the populace by stoking their fears of sinister forces at work from within and without to tear down their traditions, values and families .... His sort of populism has led to some of history's great tragedies." The News, which has only endorsed Republican Party presidential candidates since it began publication in 1873, rather than endorsing Hillary Clinton, instead chose to skip Trump for Gary Johnson, the Libertarian Party candidate. Editorial, "Libertarian Gary Johnson for President," The Detroit News, September 29, 2016.

The next day the Chicago Tribune followed the Detroit News' example with its endorsement of Gary Johnson. This was only the third time in the last 169 years that it had endorsed any presidential candidate who was not a Republican (the two prior were both Chicagoan Barack Obama in 2008 and 2012). Its editorial said: "Trump has gone out of his way to anger world leaders, giant swaths of the American public, and people of other lands who aspire to immigrate here legally. He has neither the character nor the prudent disposition for the job." Editorial, "A Principled Option for U.S. President: Endorsing Gary Johnson, Libertarian," Chicago Tribune, September 30, 2016.

Finally, USA Today, one of America's national newspapers, took a different approach -- urging voters to not vote for Trump, while not endorsing any of the other three (Clinton, Johnson, or Stein). (Its editorial board only expresses consensus, and there was no consensus for an alternative.) This is the first time in the paper's 34-year history that it has expressed an editorial opinion for or against a candidate in any presidential election.

The Board wrote: "Trump has demonstrated repeatedly that he lacks the temperament, knowledge, steadiness and honesty that America needs from its presidents. . . . From the very beginning, Trump has built his campaign on appeals to bigotry and xenophobia, whipping up resentment against Mexicans, Muslims and migrants. His proposals for mass deportations and religious tests are unworkable and contrary to America’s ideals. . . . He speaks recklessly. . . . He has coarsened the national dialogue. Did you ever imagine that a presidential candidate would discuss the size of his genitalia during a nationally televised Republican debate? Neither did we. Did you ever imagine a presidential candidate, one who avoided service in the military, would criticize Gold Star parents who lost a son in Iraq? Neither did we. Did you ever imagine you’d see a presidential candidate mock a disabled reporter? Neither did we." Editorial, "Trump is 'Unfit for the Presidency,'"> USA Today, September 30, 2016. And see generally, Tim Dickinson, "5 Conservative Newspapers That Just Went 'Never Trump;' Why Papers That Have Backed Republicans for Decades Broke Ranks With This GOP Nominee," Rolling Stone, September 29, 2016.

(The USA Today editorial is also one of the most thorough in discussing the range of reasons not to vote for Trump, with the following headings: He is erratic; He is ill-equipped to be commander in chief; He traffics in prejudice; His business career is checkered; He isn't leveling with the American people; He speaks recklessly; He has coarsened the national dialogue; He's a serial liar.)

It is significant enough that solid, conservative newspapers that have never lifted a figment of type to help a Democratic presidential candidate, or oppose a Republican, are now opposing Trump -- and sometimes even endorsing Hillary Clinton. And most, like USA Today, have identified and enumerated categories of reasons why he is unacceptable.

But what I find most heartening is the growing formulation of a set of social norms, or political norms, regarding what is, and is not, acceptable speech in presidential campaigns. If this continues, it may just save us from future political candidates assuming Trump-style campaigns are the new normal.

Here's what you and I can do:

Next time you see Trump on TV, listen to what he says, and if you find it unacceptable, say so. Say to whomever is with you -- or out loud even if you are alone -- "That's not right. And that's not a nice thing to say. Next."

# # #

Home Grown Drones

February 16, 2013, 2:15 p.m.

Drones Abroad, Drones at Home

The drones are coming! The drones are coming!

"The chickens will come home to roost," they say. So apparently do drones.

Drones Abroad

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. No frontline, or field of battle. No enemy equivalent of the Pentagon, or our Joint Chiefs. No easily identified uniforms worn by enemy soldiers. No way to produce an obvious victory, enemy surrender, armistice agreement, or even fashion an exit strategy. [Photo credit: multiple sources.]

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so.

After Lee Harvey Oswald assassinated President John Kennedy, Jack Ruby shot Oswald before he could be tried in court. Suppose the Secret Service, or Dallas local law enforcement, had reason to believe that Oswald, and then Ruby, were giving serious thought to murder. Would those suspicions (or "knowledge," if you wish) have justified assassinating Oswald -- or later, assassinating Ruby before he could kill Oswald, in order to enable a trial of the latter? Because that is, in effect, what we are doing with our drones abroad. [Photo credit: multiple sources.]

When Timothy McVeigh blew up the federal building in Oklahoma City, it was considered a crime, not an act of war. Our response? He was given his constitutional rights and convicted of that crime in a court of law. Although he had come from a community of like-minded folks in Idaho, we did not respond by bombing Idaho or otherwise killing his former "fellow travelers" (to borrow Senator Joseph McCarthy's phrase) who shared his rhetoric.

We're not paranoid. We have real enemies. What they are doing to our property and people abroad is much more than a "crime" -- even if that is what it would be if we stopped offering them targets abroad, and they had to come here to vent their hostility. But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one; see, "Department of Justice White Paper; Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force," (undated).

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home.

Drones at Home
We read that "A future in which unmanned drones are as common in U.S. skies as helicopters and airliners has moved a step closer to reality with a government request for proposals to create six drone test sites around the country. . . . Possible users at home include police, power companies wanting to monitor transmission lines, farmers needing to detect which crops need water or even ranchers counting cows. Privacy advocates worry that a proliferation of drones will lead to a 'surveillance society' in which Americans are routinely monitored, tracked, recorded and scrutinized by the authorities." Joan Lowy, "FAA takes step toward widespread US drone flights," Associated Press/Yahoo!News, February 15, 2013.

I can't say as I mind the idea of ranchers using drones to count cows. Neither does the FAA. It's just worried about drones getting in the way of piloted planes, and there are not a lot of them out where the deer and the antelope roam.

However, I'm not so thrilled about this small step forward for surveillance that is such a giant step backward for privacy.

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials.

The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind.

The Fourth Amendment works pretty well when a judge is required to approve a search warrant before one person's emails can be seized and read. But how effective has it been, or could it possibly work administratively, when the government can simultaneously monitor all the emails flowing throughout the Internet?

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

The law is years, often decades, behind technology. And so it is again, with drones.

Drones abroad, drones at home. Drones offer us, like the airline captain told his passengers, "Both good news and bad news. The good news is we're making very good time. The bad news is we have no idea where we're going."

We're skiing too far over our skis, folks. Plummeting downhill before our ethicists and legislators, just droning on, can even find their snow shoes.

_______________
Excerpts from this blog essay appeared in the hard copy edition of The Gazette, in its "Blogfeed" section: Nicholas Johnson, "From DC 2 Iowa," February 24, 2013, p. A10, as follows:

The drones are coming! The drones are coming! "The chickens will come home to roost," they say. So apparently do drones.

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. . . .

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so. . . .

We're not paranoid. We have real enemies. . . . But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one.

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home. . . .

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials. The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind. . . .

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

# # #

UI Held Hostage Day 406 - March 3 - Updates

March 3, 11:25 a.m., 6:15 p.m.; March 4, 5:15 p.m. (OpenSourcCU.com and branding consultant Denise Wymore's UICCU meeting entry and additional comments; Jeff Cox's defense of the integrity of the petition in the Thingnamer/Stokefire blog (disposing of the "signers were lied to" charge) and J.D.'s offer of alternative names); March 7, 9:00 a.m. (Greg, "Optiva No More," Hermits Rock, March 1, 2007; Steve Cunningham, "Why Does UICCU Need to Expand?" Iowa City Press-Citizen, March 7, 2007)

It's time to catch up with: What's happened at the UICCU since the memorial service for "Optiva" February 28? The UI Presidential Search Committee II? Mary Gilchrist's law suit?

Note: This blog entry will be revised from time to time with the addition of post-February 28 items worthy of historical note for the record. But unless some major news occurs it will be the last blog entry as such regarding the UICCU/"Optiva" issue.

UICCU and "Optiva"
$400,000-plus For Name Change but No $35 for the Domain Name

ResourcesForLife.com's Financial Services Resource Group (the outfit that made and posted the 1 hour 19 minute audio of the February 28 meeting, linked from its page) has some nice things to say about the UICCU's performance (12th in the nation), but also went on to do some research on domain names. No cybersquatter -- the organization makes names available to their true owner for one penny -- they present some interesting stats on Google hits from "Optiva Credit Union" and "UICCU," etc., but go on to report that www.OptivaCreditUnion.com has long-since been taken, and that www.OptivaCreditUnion.org had not been claimed by UICCU. Nor, for that matter, had University of Iowa Community Credit Union.org.

Why should that have been the first thing Weber would recommend and the UICCU's administration would do? Not necessarily because they would want to make such names (and there would be others as well) their main, advertised, domain name (though they might). It's because savvy businesses, and non-profits, know to grab every domain name that (a) they might want to use in the future, (b) that a competitor (or cybersquatter) might grab, or (c) that is sufficiently obvious, or confusingly close, that a present, or potential, customer might use it either in a Google search or directly in the URL address line. (The names owned, but not used, by the organization are then programmed to automatically forward to the main domain name that is used.)

Certainly, with over $400,000 committed to this project another $35 wouldn't be enough to "break the bank."

Disterhoft is "Excited and Pleased"

According to the Credit Union Times, "'We’re excited and pleased that the democratic process was carried out by the board of directors,” Disterhoft said. "My hat's off to the board of directors for encouraging the democratic principles we were founded on some 70 years ago.'” (The story is linked, below.)

But Dave DeWitte and George Ford report in The Gazette, linked below: "Jeff Disterhoft, president of the University of Iowa Community Credit Union, attributed Wednesday’s vote to a rejection of the Optiva name. 'In the end, I think people were just not comfortable with the name itself,' Disterhoft said. . . . Disterhoft said about $400,000 was spent . . .. 'On Oct. 4, when the members voted to change the name of the credit union effective March 1, there was no choice but to move forward and spend these funds,' Disterhoft said. . . . ' We really had no other option.'"

These statements come much closer to what I perceive as the problem: the Board and CEO's equating of (a) compliance with minimal legal requirements as the extent of their responsibility to the membership, (b) the votes at a membership meeting (or results of "focus groups") with "the opinion of the membership," and (c) the simple (and minipulated) majority of a near-tie on a highly controversial major issue as a "mandate" to move ahead."

Why? (a) "the democratic principles we were founded on some 70 years ago," to quote Disterhoft, require seeking out, and endeavoring to execute, the wishes of the membership -- not making decisions first and then trying to persuade the membership, and at least minimally comply with any legal requirements regarding membership involvement, (b) there are far more members, whose opinions deserve to be taken into account, than there are members willing to come to meetings; you would not want a "meeting" of 45,000 members anyway, but modern technology makes it cheap and easy to gather their opinions, and (c) it is probably best not to try to move ahead with proposals that are (1) significant, (2) emotionally charged, (3) divisive, and (4) and as to which the membership of a membership organization is very evenly divided -- even if there had been a polling of all members first. To bull ahead with a management-originated plan anyway, with no more authorization that a very nearly evenly split result (198-192) at a membership meeting attended by less than 1% of the membership is a guarantee of disaster -- as occurred last Wednesday.

As the Press-Citizen put it in its March 2 editorial, linked below, "[T]the board and staff should have recognized that such a razor-thin margin [as came out of the October 4 meeting] was not a mandate. . . . In Iowa . . . consensus is the rule-of-thumb for politics -- especially for institutions designed to be more cooperative than profit-driven." (On the other hand, the editorial cited the reasons advanced for the name change (easing geographical expansion and removing confusion about the necessity of a UI tie for membership) without the reasons to oppose it, and characterized the choice of names as one between "whether the credit union should keep its lengthy, regionally tied name or streamline to the sleeker and non-geographically specific, Optiva" -- not that the paper isn't just as entitled to its opinion as any of the rest of us.)

It is (probably) not true that they "had no other option." Presumably the October 4 resolution, if it was properly drafted, would have authorized, not mandated, the Board to adopt a name change. What I recommended to both the Board and the CEO, and clearly laid out, was the option they did have, and refused to consider: that they obtain the opinion of the entire membership (whether by post, scientific sampling, or online). If an overwhelming majority of the entire membership (that is, those willing to express a view) favored the "Optiva" name change they might still want to reconsider the idea if there was an emotional and outspoken substantial minority in opposition. But at least they would have made an effort to obtain a broader base of the membership's will. If an overwhelming majority opposed it, they would be well advised to drop the idea. Instead, they chose to rest on the fact they had complied with the legal minimums and had their 6-vote "majority" from a membership meeting (which they had loaded with most of the 150 employee-members who were paid overtime to attend).

To this day -- to the best of my knowledge -- no one in the UICCU's administration or Board has made a statement indicating that they understand they made a mistake, or that the issue was about more than just a name, that it went to the heart of their anti-democratic management of a democratic membership organization. (As Disterhoft is quoted as saying, above, "people were just not comfortable with the name." Yes, and you were unaware of that before the meeting? And why were you unaware? Or were you aware, and prepared to go ahead with it anyway, knowing that the membership was "not comfortable with the name," if you had received the kind of slim majority of those voting that you got in October?)

Press-Citizen Readers Continue "Membership Meeting" Discussion

The Press-Citizen's March 1 story on the February 28 meeting now carries some 68 comments from readers (as of the evening of March 2). (Those 68 comments are in a file linked, below, that also contains a link to the March 1 story.)

Possible Board Membership Challenge

Dave DeWitte and George Ford report in The Gazette that there's a move afoot, perhaps among some of those who signed the petition calling for the February 28 meeting, to put together a slate of new candidates for the Board to be presented at the March 21 annual membership meeting. It's linked below.

[March 7, 2007: "Greg" in the Hermits Rock blog, linked below, describes the February 28 meeting.

Steve Cunningham asks, in the March 7 Press-Citizen, also linked below, "Why Does UICCU Need to Expand?" to which "PeterJ" responds by way of an entered comment: "The salary of the president of a credit union increases with the assets of the credit union. Hence, there is a big incentive for the president to push growth above everything else."

Disterhoft's motives aside (and who can know another's motives for sure?), there really was a two-step foundation to the Board's argument here for which the first issue tended to get overlooked. (1) We need to expand. (2) In order to expand we need a non-geographical name.

Sometimes a restaurant, or other business, that is quite successfully locally sort of falls apart when it expands geographically. What are the pros and cons, the benefits and costs, what does the data show, with regard to the geographical expansion of credit unions throughout this country? How have the members been advantaged by expansion? (My own experience is that my "bank" (as distinguished from my credit union) has been less satisfactory, not more, as it has joined larger and larger operations through merger. Why would a credit union be different? I'm not saying it wouldn't be different; I'm just asking why it would be.)

The questions are not necessarily related. That is, we might decide that we would be advantaged by expanding, but that we don't need to change our name to do so -- or that we don't need to change our name to a nonsense word (and I mean that in the descriptive, rather than the pejorative sense) to do so (although we might decide we would benefit from, or wanted to anyway, change our name to something other than UICCU). Similarly, we might decide that we would be disadvantaged (or at least not advantaged) by expanding substantially, and yet we want to change our name anyway for other reasons.

Cunningham has highlighted the importance of addressing the expansion issue head on -- however we come out on it -- and I'm grateful to him for doing that.]

UI Presidential Search Committee II

It being Saturday, the local papers report on the Friday meetings of the Search Committee II -- since, with the new policy of openness, the meetings are open to media and public.

There was discussion of desirable qualities in a president, from the Committee members' perspective. Diane Heldt reports that the "qualities committee members want include high energy, the ability to articulate a vision and develop goals for the UI, being a spokesperson — whether it be communicating successes or crisis management — and success in fundraising." But she quotes College of Liberal Arts and Sciences Dean Linda Maxson as saying, "I think [intellectual leadership] has to go at the top of the list. I think that's the single most distinguishing characteristic we’re looking for." The story is linked below.

Brian Morelli's story in the Press-Citizen this morning, while also picking up on the "intellectual leader" emphasis put the rest of the list of desired qualities this way: "high energy, ability and enjoyment to fundraise, strategic thinking, executive decision-making, the ability to oversee without meddling and ability for crisis management."

Morelli has another interesting story ("UI Search Opposite of 1st"), also linked below, in which he quotes Faculty Senate President Sheldon Kurtz as saying, "Search two, from a process perspective is much more open. In fact, it is infinitely more open." And it also includes a bewildering exchange with Regents President Michael Gartner:

"[T]he closed nature of the first search, which didn't announce its meetings, didn't hold them in public and provided few updates caused uneasiness on campus and in the state.

"'There is a good possibility that search one was not conducted in accordance with the rules,' Kurtz said. 'They didn't have a committee chaired by a person that understood the university world. (Initial search committee chairwoman Teresa Wahlert) understood the corporate world."

"Wahlert, the chief operating officer of the Mid-America Group in Des Moines, did not return phone messages Friday. Regent President Michael Gartner, who was one of four regents on the initial 19-person search committee, said he wasn't involved in the decision making for the initial search and didn't know where the advice came from to use a closed process.

"'I was not involved. You would have to ask Teresa,' Gartner said."

"I was not involved"? Gartner "was not involved"? Gartner is involved in everything. Gartner calls the shots; he speaks as if he was the Board of Regents. One can only speculate as to why he would have said this, and transfer all responsibility for the fiasco of Search Committee I to Ms. Wahlert's shoulders.

Mary Gilchrist's Law Suit
Gregg Hennigan reports in this morning's Gazette that, having lost an early motion, with the judge's blessing Gilchrist and her lawyer are preparing to move ahead with a jury trial. (The story is linked, below.)

# # #
[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #
Media Stories and Commentary
"Disterhoft Pleased with ‘Democratic’ Name Voting Process, Ready to Move Forward," Credit Union Times, March 1, 2007

Diane Heldt, "Committee Members Desire an Intellectual Leader," The Gazette, March 3, 2007

Gregg Hennigan, "Judge Says Gilchrist Can Continue Case to Fight for Job," The Gazette, March 3, 2007

Dave DeWitte and George C. Ford, "Board Changes Sought At UI Credit Union," The Gazette, March 2, 2007

Editorial, "The Strength of UI Community Credit Union," Iowa City Press-Citizen, March 2, 2007

Steve Cunningham, "Why Does UICCU Need to Expand?" Iowa City Press-Citizen, March 7, 2007, plus readers' comments

Brian Morelli, "Committee Wants Intellectual Leader; Next UI President Should 'Set a Tone,'" Iowa City Press-Citizen, March 3, 2007

Brian Morelli, "New UI Search Opposite of 1st," Iowa City Press-Citizen, March 3, 2007

"Reader Comments Regarding Kathryn Fiegen, 'Members have spoken: UICCU it is; 1,437 cast votes about whether to change name to Optiva," Iowa City Press-Citizen, March 1, 2007 -- 68 Comments Through March 2, 2007, and with link to Fiegen's story

Nicholas Johnson Blog Entries Regarding Optiva

"Optiva Voted Down" in Nicholas Johnson, "UI Held Hostage Day 404 - March 1 -- Optiva," March 1, 2007

"The Feb. 28 UICCU/'Optiva' Credit Union Meeting" in Nicholas Johnson, "UI Held Hostage Day 402 - Feb. 27 -- Optiva," February 27, 2007, Revised February 28, 2007

"What the Credit Union Feb. 28 Meeting is Really About" in Nicholas Johnson, "UI Held Hostage Day 398 - Feb. 23 -- Optiva," February 23, 2007

"UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 392 - Feb. 17," February 17, 2007

Nicholas Johnson, "UI Held Hostage Day 62 - Revisiting Optiva," January 17, 2007

Nicholas Johnson, "Seattle's Optiva," October 23, 2006

Nicholas Johnson, "Optiva," October 13, 2006

Others' Blogs

Denise Wymore (branding consultant), "Lessons to Be Learned From the University of Iowa," OpenSourceCU.com, March 2, 2007

Greg, "Optiva No More," Hermits Rock, March 1, 2007

Denise Wymore (branding consultant), "I Convinced Them Not to Change the Name," ThingNamer.com/StokeFire.com, February 20, 2007 (comment to Tate Linden, "Optiva -- Turning the House to Screw in the Bulb?" February 19, 2007)

Jeff Cox, "Tired of Hearing Credit Union Employees Asserting Petitioners Lied," ThingNamer.com/StokeFire.com, March 3, 2007 (comment to Tate Linden, "Optiva -- Turning the House to Screw in the Bulb?" February 19, 2007)

J.D.'s Blog Bites (J.D. Mendenhall), "Optiv-Out!" March 3, 2007

Open Country (Maria Houser Conzemius), "Not So Fast, 'Optiva'!" March 1, 2007

Thingnamer (Tate Linden/Stokefire), "UICCU -- The Credit Union Formerly Known as Optiva . . . OptivEx . . . Noptiva," March 1, 2007

References

The Credit Union Membership Access Act of 1998, Sec. 2(4)

National Credit Union Administration

National Association of Federal Credit Unions

State of Iowa Credit Union Division

OpenSourceCU.com

The Credit Union Difference," on the site of the USA Federal Credit Union

Iowa Credit Union League

The Credit Union Journal

Credit Union Times

UICCU

Optiva Promotional Video

UICCU Membership Meeting, February 28, 2007, audio (a one-hour-19-minute audio recording of the meeting is now available online, courtesy of Financial Services Resource Group (go to "UICCU -- Can Your Financial Institution Do That?" and click on link).)

Cintara's POPwink

ThingNamer.com/StokeFire.com blog

Denise Wymore (branding consultant)
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Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
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Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
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UI Held Hostage Day 402 - Feb. 27 -- Optiva

Feb. 27, 7:00 a.m., 8:00 a.m.
REVISED AND EXPANDED Feb. 28, 12:25 p.m., 9:25 p.m.
(with more letters to the editor, others' blogs, The Gazette's Feb. 28 article, and the Optiva promoters expensive video)

EXTRA:
It's all over for Optiva!!

Members out vote board members, CEO, administrators and employees by 806 to 631!!!

(More to come.)

The Feb. 28 UICCU/"Optiva" Credit Union Meeting
For another couple days this blog's focus is the University of Iowa Community Credit Union (UICCU), the management's proposed name change to "Optiva," and the membership meeting to consider the proposal tomorrow evening.

If you are a member I urge you to attend the meeting (for reasons spelled out below) regardless of how you feel about the name change. The meeting is Wednesday evening, February 28, starting at 6:00 p.m., at the Quality Inn & Suites Highlander Conference Center, 2525 N. Dodge St., Iowa City.

An "Executive Summary" of sorts of the analysis in the Feb. 23 blog entry/essay, "What the Credit Union Feb. 28 Meeting is Really About," in Nicholas Johnson, "UI Held Hostage Day 398 - Feb. 23," February 23, 2007, repeated below, is contained in a Letter to the Editor of mine, published in the Iowa City Press-Citizen this morning, Feb. 27. Here it is:

Process matters most in election
Nicholas Johnson
Like "Six Blind Men and an Elephant," we perceive Optiva differently. Some see "a dorky name" and "abandonment of the UICCU's [University of Iowa Community Credit Union's] heritage." Others see "progressive change." Some see legal violations. Others say "get over it." Both sides seem angry.

I'm "none of the above." I've found UICCU employees friendly and competent, and the financial policies rewarding.

My concerns involve governance. Over the banking industry's strong opposition, an Act of Congress provides, "Credit unions . . . are exempt from Federal and most State taxes because credit unions are member-owned, democratically operated . . . organizations." (emphasis supplied)

That's why for UICCU administrators to make genuine efforts to seek out members' opinions before making decisions is like fastening their seat belts: "It's not just a good idea, it's the law."

My perception is that -- like the Iowa state Board of Regents -- their approach to the Optiva change, from start to finish, has looked more like a private bank than a "democratically operated organization."

Rather than a unilateral decision followed by a campaign to force it past the legal minimums, with lawyers, full-page ads, and overtime for voting employees, why not first poll the membership -- by mail, scientific sampling or even online?

Let's vote to retain "UICCU" temporarily, poll the members who can't attend meetings, and then consider their proposed name changes -- including "Optiva."

Process isn't trivial. It's the heart and soul of credit unions, without which we're just "bank customers" risking loss of the legal benefits, along with the responsibilities, of membership.

Nicholas Johnson
Iowa City
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Here are some Optiva updates since Feb. 23, followed by a repeat of the Feb. 23 essay/blog entry on what the meeting "is really about."

The basic problem here is "process."

Of course the board and CEO of a "democratically operated" membership organization need to exert some leadership; but what they should exert leadership about is effectuating what they have discovered to be the will of the membershiip. Once that process is reversed, once the board and CEO first take all policy decisions unto themselves, decisions to which they are emotionally attached, and only subsequently undertake the task of trying to persuade the membership of their wisdom, the system goes awry in all directions. They become at best dismissive of the members, and at worst antagonistic towards them. They launch into political campaign mode in a contest of their own creation that they believe they simply must "win" over the objections of those within the membership perceived as their "opponents."

They hire lawyers to make sure they meet the legal minimums and stay out of jail, while beating back any members' efforts to get more participation than those minimums. They pressure employees to write letters to the editor, campaign with customers, and pay them overtime to attend and vote to support management at "membership" meetings. They take out full-page ads. They put up posters in the branches. They endeavor to make the board a self-perpetuating group, rather than opening board elections to rotating membership. And they then increasingly operate in secret, not revealing board members' contact information, board meeting minutes, or studies ordered and paid for that influence board decisions.

It's unseemly, yes. But it's also to be expected, once you have a board and CEO unwilling to grasp, and live by, the law and spirit of a "democratically organized" institution.
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Letters; There Are Lots and Lots of Letters
David Burgess has an interesting suggestion in a letter to the editor of the Daily Iowan of Feb. 26, linked below: a contest among the members, and others at the UI, for the best new name and logo, with a $5,000 prize. It's an idea that is consistent with two themes in the letters: the need in a membership organization for genuine membership involvement, and the notion that surely better names than "Optiva" are available.

Meanwhile, in this morning's (Feb. 28) Press-Citizen Joseph Momberg writes on a theme in my letter yesterday, "It seems that administrators all have very high opinions of their own ideas and very little respect for opinions of the masses."

Weldon E. Heitman picks up on the steamroller, pull-out-all-stops effort of UICCU administration to force through their unilateral judgment: "It seems somewhat strange to me that so many employees of the University of Iowa Community Credit Union have written letters advocating for the name change to Optiva. It makes one wonder how much encouragement these writers have had from the UICCU board and leadership to write these letters" and then concludes, "We as members also should evaluate the performance of UICCU officers and board members and make a judgment made as to their competence to continue in their positions."

Sue Travis makes a similar point: "The October vote was marred by multiple voting violations. Since that time, UICCU's paid employees have been wearing buttons urging members to vote for Optiva, and they tell each 'customer' (member) to vote for Optiva. One has to wonder what is behind all this. The letters that support the Optiva name are mostly coming from credit union employees and their families. When I circulated a petition at work calling for a re-vote, every single member that I talked to -- about 20 of them -- thought the name change was dumb or suspicious. How can the credit union be so out of touch with the members? What aren't they telling us? It feels like we are being hoodwinked."

(The full text of all letters mentioned here, and more, a linked below.)

My suspicion that there is a category of UICCU members who don't object to changing UICCU to something else, but are really opposed to "Optiva," is born out in a Feb. 24 letter to the editor in the Press-Citizen from a Bill Moorhead who thinks "the name 'Optiva Credit Union' is seriously dorky" and that "a better name surely can be found."

To the extent "the major reason behind the name change" is that the board and CEO "may want to move into markets in Illinois," Dan Lechay writes in the same day's paper that this should "be explored at the coming meeting. Do members share our leaders' ambitious vision of growth?"

There have been a number of letters from UICCU employees that praise their bosses and support the name change to Optiva. Some of the authors of these letters candidly admit in the letter to being employees. Others who have written similar thoughts in a similar tone one suspects of being employees even though they do not express similar candor.

Has management made an effort to intimidate employees, and encourage their support of Optiva? I have only limited, if any, first hand knowledge. However, one would think that out of the substantial number of UICCU employees -- "150 or so" according to UICCU Marketing Director Jim Kelly's Feb. 19 comment -- there would be at least one who would share some of the concerns expressed in the letters from non-employee members. And yet I am unaware of a single employee who has spoken out against the name change.

Of those voting tomorrow evening we really should be told -- if not a break out of how the employee-members' votes split (totals; of course, the confidentiality of an individual's vote should be preserved) -- at least how many of those voting are employees. In terms of the (a) advisory nature of the vote, in letting the board members and administration know how those non-employee-members who are able to attend the meeting split on the issue, (b) a report back to the full membership on the meeting, and (c) the media's coverage and report to the community, it's not very informative to co-mingle the votes of employees and non-employee members and not even reveal how many of those in attendance were employees.

If the board members and administration refuse to do this it will end up being yet one more illustration of their desire to "win" at all costs; their willingness to ignore, manipulate and avoid genuine membership preference and participation; to insist that so long as they are just getting their way while avoiding prison sentences and heavy fines, so long as they are "legal," they are behaving as responsibile representatives for this "membership organization."

One is always reassured by finding that others have independently come to the same opinions. This comment was entered by a "Laura" to the blog entry "UICCU and Optiva" in Nicholas Johnson, "UI Held Hostage Day 392 - Feb. 17," February 17, 2007.

"Laura said...

"And then there are the members (like me) who now live elsewhere and can't really feasibly pop back over to Iowa for a meeting. I actually went in to see if I could close my UICCU account the last time I was in town, in protest, but I still have a loan out from them and thus can't.

"It's interesting to see how much conversation is happening on the web about the renaming decision--conversation that has been happening after the decision has been made (or made once). Wouldn't it have been nice if instead of sending us all a letter saying, "We're going to be changing our name and we're going to pay some people a lot of money to help us out," they had sent out a letter (or perhaps even put up a website where one could comment) saying, "We're thinking of changing our name for the following reasons. Do you have any suggestions?"
"2/23/2007 09:26:00 PM"

Amen, Laura. My point exactly -- but much more succinctly(!).

Linda Fisher picks up a similar theme in her Letter to the Editor of the Press-Citizen today, along with observations about the lack of originality in "Optiva." "Optiva is not a unique name. Multiple firms or products have that or something similar. They don't want us using their name, and some may sue if we take it. Plus, there's a moral dimension: We'd be stealing just as if we found and kept a purse with a bundle of money and identification in it. . . . Many of pro-Optiva votes in October were from University of Iowa Community Credit Union employees. Why not try to achieve greater consensus from the rest of the 45,000 member-owners -- especially considering that most of them are not able to get to a meeting?"

An A.E. Betenbender wrote the Press-Citizen a balanced, one-sentence Letter on Feb. 19, as follows: "Although I may not understand the need to hire a consultant and pay an exuberant amount of money for a name change that some may think is not needed or appropriate, I do want to commend the University of Iowa Community Credit Union for many years of superb service."

There were a number of Letters to the Editor in the Press-Citizen today besides mine. Jim Doorley writes, in part, "Credit unions initially were formed to provide an alternative to the abuses and exploitation of the banking system. With a credit union, one is part of a 'financial family,' usually with better rates of return. With a credit union, one is a member; with a bank, one is a customer. The banks look out for their shareholders, not the customers. One doesn't expect a bank to be 'fair' but members expect their credit union to play 'fair and honest.' What caused this anger and frustration? The method of voting on the name change: This is Iowa City, not Chicago." Commenting on the $250,000 to Pilcher and company, Doorley adds that he would have been willing to come up with a name for only $50,000.

[Note: Tate Linden, of Stokefire Consulting Group, as further evidence of his fairness on behalf of competitor Pilcher ( if I have it right), comments on this blog entry that the $250,000 sounds high. It may well be. I have no independent, reliable source -- only what I've picked up from the papers. Two additional responses from me: (a) Of course the total costs of the name change -- payment to Pilcher, advertising and marketing, the two membership meetings, renaming buildings and signs, and all paper used in the credit union -- will be far greater than what they gave Pilcher. And that total is, I believe, a reasonable number to consider and use when measuring the pros and cons of this name change. (b) One of the problems when writing about institutions that are supposed to operate in the open but nonetheless insist on secrecy -- such as the Board of Regents, or the UICCU -- is that it makes it difficult for those who are writing to confirm facts. That makes me somewhat less anxious about the possibility of errors: the UICCU administration is in no position to criticize those who use false information while simultaneously refusing to make public the facts that would make corrections possible. That's an "assumption of risk" for those who insist on secrecy.]

Dale Phillips writes, "When I first saw the name, Optiva, I thought . . . it's a joke, right?"

And Linda Fisher's letter is quoted above. (All are available in full from the link, below.)

Other Blogs' Discussions -- By Professionals

This is not the only blog discussing the "Optiva" issue. It's attracted the attention of credit union officials and the companies that advise them on name changes all across the country. Suffice it to say, there is considerable debate within "the industry" on the wisdom of this move to "Optiva."

Tate Linden identifies himself as the "principal consultant" to the Stokefire Consulting Group, which maintains its own blog. See, for example, Tate Linden, "Optiva -- Turning the House to Screw in the Bulb?" in Thingnamer.com, February 19, 2007 (Linden reports, "Even our little corner of the world racked up dozens of comments about it") and "What's the Deal With Optiva Credit Union?" in Thingnamer.com, November 9, 2006.

Another branding firm is "Cintara," which operates a blog it calls "POPwink." It had a flattering entry about my essay/blog entry on Optiva Feb. 23. Sample: "Oh man, I ran across this amazingly detailed and thought out dissertation on the whole Optiva Name Change (and more) from Nicholas Johnson, Esq. Mr. Johnson is a law professor and former Commissioner of the Federal Communications Commission, and if his blog is any indication, a very very smart man."

It wasn't up for more than two hours when someone named Jeffrey Pilcher put in a comment by way of response that was little more than a mean spirited, ad hominum unrelated to the subject of my blog entry. Sample: "He just rambles and prattles. . . . [W]ho wants to sit through a class with such a pedantic pedagogue? He spends a lot of time bitching about 'democracy.'"

Who, you ask, is Jeffrey Pilcher? A disaffected former student of mine, perhaps? You'd never find out from this blog entry, because Pilcher nowhere identifies himself. But Jeffrey Pilcher, it turns out, was the clever fellow who -- in exchange for what's been reported to be $250,000 of our credit union members' money -- came up with the name "Optiva." He's become a little testy recently in his defensiveness regarding this one-word verbal child of his as his colleagues in the industry seem to be suggesting that this may have been at least one example of an instance in which abortion would have been a better choice. (He's also the proud author of the "Red Canoe Credit Union" branding.)

Pilcher works for the Weber Marketing Group. The firm's Web site describes itself as "a team of heavy hitters with the strategic knowledge and creative muscle you won’t find at other agencies. . . . [W]e have a proven, proprietary process that’s guaranteed to transform your marketing goals into good old-fashioned, bottom-line results. Our clients turn to us for powerful, robust integrated brands that build loyalty and make jaws drop. Discover what they already know. Make us your secret weapon in the battle for marketshare before your competition does."

Who can argue with that? They sure were able to "make jaws drop" around here with that "Optiva" idea. Nor was that their first. The Web site brags of "three new credit union names" -- apparently a specialty of theirs. The names? Iowa's own Veridian, plus Taleris and Plus4. (It doesn't mention the "Red Canoe" credit union.)

Now, here is a reproduction of the Feb. 23 blog entry that produced Mr. Pilcher's outburst. (As you'll see it contains little, if any, comment about, let alone criticism of, either Mr. Pilcher or his proud choice of "Optiva.")
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Feb. 23, 11:15 a.m.

What the Credit Union Feb. 28 Meeting is Really About

"Credit unions . . . are exempt from Federal and most State taxes because credit unions are member-owned, democratically operated . . . organizations . . .." (emphasis supplied)

That's a quote from the Credit Union Membership Access Act of 1998, Sec. 2(4).

[The meeting, for UICCU members, will be held at Quality Inn & Suites Highlander Conference Center, 2525 N. Dodge St., Iowa City, starting at 6:00 p.m., on Wednesday evening, February 28, 2007. It may be necessary to arrive a little before 6:00 p.m. in order to be checked in -- but I don't know that for sure.]

In short, for a credit union's board members and CEO to accord dignity, openness and cooperative friendliness to members, to genuinely seek their opinions (and be governed by them), to encourage membership participation and democratic operation of a credit union -- is, well, kind of like fastening your seat belt: "It's not just a good idea, it's the law." It's the very foundation of credit unions; it's the justification for the legal and tax benefits given a credit union -- that become the financial benefits it can pass on to its members (or, better said, the members can pass on to themselves).

Reshaping the Definition of "Democracy"
"Democracy" began small in this country, and then grew. Initially, it only had to do with "government," with the state. And at that, the only ones who could vote were (a) white, (b) males, (c) who owned land, and (d) were over 21. (And when it came to electing U.S. Senators, even these elite electors were limited to voting for the state legislators who were given the constitutional power to vote for the state's senators. U.S. Constitution, Art. I, Sec. 3. We are still liimited to voting for "electors" rather than voting directly for the presidential candidate of our choice. Id., Art. II, Sec. 1.)

With the passage of the years the electorate was expanded to include African-American males, U.S. Constitution, Amendment XV (1870), those who didn't own land, females, Id., Amendment XIX (1920) and finally all over the age of 18. Id., Amendment XXVI (1971).

But democracy's spread hasn't stopped there.

As the national president of the YMCA's high school organization, Hi-Y, I was given a seat on the national YMCA board of directors -- with white guys in suits, all of whom were at least three or four times my age.

We require that the Iowa Board of Regents has at least one student from the Regents' universities. Iowa Code Sec. 262 (1) (2007).

At one time Chrysler included on its board of directors the national president of the UAW.

Schools, from K-12 through university, have accorded some responsibility, however limited, to "student councils."

There are numerous other examples, including "family councils" in some families that, generations ago, would have been subject to the dictatorial whims of the father.

Unlike many of these democratizing moves within hierarchal organizations, credit unions are, and have been since their beginnings, nothing but their members, coming together in democratically-controlled institutions called credit unions. Thus, any tendency toward hierarchy and top-down control inside a credit union is the equivalent of what, within a nation's government, would be characterized as a coup-d'etat, or treason.

The UICCU's Loss of Membership Control
and the Perversion of "The Rule of Law"

In fairness to the UICCU board and CEO, it is the natural tendency of all institutions -- corporate, non-profit, military, educational -- to concentrate power, function in increasing isolation and secrecy, and look upon members of its stakeholder groups as pesky intruders to be "dealt with" when they cannot be ignored, rather than sought out as constructive, collegial participants in the governing process.

The President of the U.S., rather than seek out and respond to the overwhelming majority of Americans, increasing numbers of members of the U.S. Senate and House, former military leaders and government officials who oppose his preemptive war in Iraq, cites Art. II, Sec. 2, of the U.S. Constitution as the legal basis for going his own way.

The Iowa Board of Regents, claims the legal power to rebuff the UI faculty, and according to Feb. 24's papers, the Iowa Ombudsperson's investigation as well.

Search Committee II, created by the same Board of Regents legally required to have a student member, exercises its power to forbid any undergraduate representation on the Committee.

Iowa State, also according to Feb. 24's morning's papers, unilaterally decides to charge UI fans $90 a ticket to attend the UI-ISU football game this year -- 50% more than the $60 the UI charged the ISU fans last year.

The listing of examples could go on, but this should be enough to make the point.

"The law," which is designed to set the absolute minimums, and maximums, of socially acceptable behavior, all too often becomes the justification for behavior that is offensive, insensitive to others, contrary to the spirt of the organization and its mission, or that excludes from participation in decision-making stakeholders with legitimate rights to be heard. If the behavior in question has not been defined as a crime, and does not result in civil liability, that is taken as justification for the action, regardless of how offensive and contrary to the mission of the institution it may be.

So it's not that the UICCU leadership is necessarily any worse than that of comparable organizations. It may even be better. But that doesn't make it good.

When I first took an interest in this "Optiva" name change I wanted to communicate with the board members about it. However, when I asked for their names I was told by employees I was not entitled to know them. Since those employees had first checked with supervisors, it was obvious they had been instructed by management to handle my inquiry this way; it was not just an individual's unique display of ignorance or exercise of bad judgment. When I did finally get the names (although not an up-to-date list) I was still denied access to addresses for them. I discussed this matter with the CEO, pointing out that the ICCSD School Board members' names, titles and terms, home addresses and phone numbers, e-mail addresses, photos and bios are available on the District's Web site. Although the UICCU Web site now contains the names, titles, phone numbers and e-mail addresses of employees of the credit union, there is still no contact information whatsoever for the CEO and board members (that I could find).

It was not my personal experience, but I was told of a member who asked for -- and was refused -- the minutes of UICCU board meetings. (So far as I know they are not posted on the UICCU Web site -- although even the secretive Iowa Board of Regents puts the minutes of its meetings on its Web site!)

UICCU members have been told that a significant study preceded the Board's selection of the name "Optiva." However, I have also been told that someone who asked to see that study was told he or she could not even see it, let alone have a copy.

Whatever else may be said of the October membership meeting's legality, at a minimum there were "irregularities." There was apparently an effort by management to get employees to attend and vote for the "Optiva" name. (I was told of at least one such case.) There's no reason employees who are members should be denied the right to vote. But when management becomes an active and antagonistic advocate for its pre-determined proposal, and the outcome it wants from a "membership" meeting, and uses its influence with employees to bring about that result -- rather than conduct a genuine inquiry as to the preferences of the rest of the membership base -- and then insists that it has "won" because it was able to get six more votes than its "opponents" at a meeting at which less than 1% of the credit union's membership was polled, the UICCU has strayed very far afield indeed from the "democratically operated organization" envisioned in the Credit Union Membership Access Act of 1998.

Again, the following has been told me as another example of UICCU attempts at legal bullying of members, but was not a personal experience. Apparently the UICCU's first response to the petition for the February 28 meeting was rebuffed, and the February 28 date rejected. When it was discovered that the law required a meeting be called, so was the credit union's lawyer -- who set about the task of trying to find some legal fault with the petition. He was ultimately turned down by the Iowa Superintendent of credit unions, who wrote that the lawyer had misrepresented conversations with the Superintendent. [Matt Nelson's story, linked below, reports: "James Forney, the superintendent of the Iowa division of credit unions . . . disagreed with Lynch's [Lawrence Lynch, the legal counsel for the credit union] assessment that the petition was 'defective.' Lynch had recommended that a meeting be held to discuss the petition, but any votes in that meeting 'cannot be binding upon the credit union or its Board of Directors.' Forney's review of the documents found that the petition presented to the credit union adequately stated the purpose of the meeting - the critical requirement to guide the board to hold a second meeting about the name change."]

According to Matt Nelson's story, linked below, a firm called "Optiva Mortgage" has been using the Optiva name since 2004 and, since it anticipates doing business in Iowa, has requested the UICCU abandon its claim on "Optiva Mortgage's" name. While that would be the decent thing to do, once again UICCU administration has decided to bull ahead on the basis of a legal technicality that gives it the right to "steal it fair and square."

Now the board and administration are arguing that we have to go ahead with the name change to Optiva -- why? Because they've already gone ahead with the name change preparations and are ready to make the changeover on March 1. It's kind of like what the Administration in Washington argues is the reason we have to support not only a continuation of what's going on in Iraq, but a "surge" of additional troops. We no longer have the option of staying out of Iraq, of not engaging in a preemptive war we're told. Why? Because we're already there. Similarly, knowing of the widespread membership opposition to the name change, and having known for some time of the demand for another meeting, they went ahead with purchases to effectuate the name change anyway. And now, they say, we are, for that reason, bound to support what they've done.

I am not as concerned about the legal requirements (though I'm not suggesting they should be ignored) as I am about genuine credit union democracy. I want a board that wants to know what all of its membership wants to do -- not just those who are free and inclined to attend an evening meeting that can be manipulated. I proposed that -- legal requirements regarding a "membership meeting" aside -- there be an informal poll of the membership on the name change. This could have been done by mail; if not to the entire membership, then a scientific sampling. Even cheaper (essentially free), easier and probably more effective, it could have been done online, with a Web page set up for the purpose. It still could be. I suggested this to the CEO and board members. There was zero interest in the idea. I pointed out that even though the controversy (and thus the need for a pre-October meeting poll) might not have been anticipated, once the controversy over "Optiva" arose such a poll was even more essential as a matter of public relations and a good faith gesture from the Board. Still zero interest.

I don't need, or want, to get into a "who shot John" debate about the details described above. Some may not be accurate. And I certainly don't want to cast aspersions or be judgmental about the character of those involved. That's neither constructive nor necessary to my point. I'm just describing actions. And my only point is that, taken together, if even a half of these incidents occurred, they paint a picture of something other that an open, transparent, welcoming, board and CEO anxious to ascertain (and follow) the will of the membership.

It may sound odd, coming from a law professor, but I find it sad, disappointing, and discouraging the extent to which the UICCU administration seems so focused on "the law." It does not seem even to grasp the concept of, let alone express a desire to encourage, genuine membership involvement. It gives the impression it thinks that so long as it does not violate the law in ways that can result in prison terms or heavy fines it is free to force its will upon the membership.

There is, of course, an element of the "Six Blind Men and an Elephant" in all of this. Some see the February 28 meeting as a time to "support your board" -- or to put down those members who would dare to challenge management. Some see it as the result of a need to follow the letter of the law regarding membership meetings.

As the forgoing makes clear, I see the meeting as an opportunity to do a "Jet Blue reorganization;" to "take it from the top." As I see it, the membership needs to deliver a message, loud and clear, to the board and administration: "We appreciate what you are doing for us financially. We do not appreciate the way you are doing it, running this credit union as if it were the branch bank of a national banking chain with corporate headquarters elsewhere -- or a bank that you personally own, and that views us as 'customers' rather than 'members and owners.' We want more respect and transparency. We are members of this credit union precisely because we don't want to be 'customers' of a 'bank.'"

That's why I think we should vote choice two at the meeting:

“I vote to reverse the membership vote of Oct. 4th, 2006, whereby the credit union’s name will remain the University of Iowa Community Credit Union. _____”

(The precise language to be voted on is available on page 2 of the online reproduction of a postcard the Web site represents was sent to all members. The credit union's site also provides a general "Name Change Information" Web page.)

That's what that vote does. It takes us back to square one. It doesn't mean we have to stick with "University of Iowa Community Credit Union" as a name if a subsequent online (or postal) poll of the membership (followed by the legal "membership meeting") decides to change it later. It doesn't even foreclose the possibility of that process adopting the name "Optiva" in the future -- though if the majority votes to at least temporarily retain the UICCU name it is unlikely a subsequent poll would support "Optiva."

That vote is just an effort at a little surgery: an attitude transplant for UICCU board and administration. It forecloses nothing. What it does do is to help reestablish in the hearts and minds of the membership, the board, and the administration, our desire to become once again the kind of membership organization envisioned by those who started the credit union movement over 100 years ago, by President Franklin Roosevelt, whose 1934 New Deal legislation enabled the UICCU's creation in 1938, and by those in the Congress in 1998 who passed the Credit Union Membership Access Act.
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[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

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Media Stories and Commentary
David Burgess, "We Can Do Better Than 'Optiva,'" The Daily Iowan, February 26, 2007

Matt Nelson, "Firm Asks Credit Union to Discard 'Optiva,'" The Daily Iowan, February 21, 2007

Dave DeWitte, "State Regulators to Oversee Credit Union Vote Today; Name of Organization Hangs in the Balance," The Gazette, February 28, 2007

Editorial, "New Election is Optimal Option for Optiva," Iowa City Press-Citizen, February 20, 2007, ( plus text of op eds and letters to the editor that day, pro and con)

Iowa City Press-Citizen Optiva Letters to the Editor:

February 19, 2007
February 24, 2007
February 26, 2007
February 27, 2007
February 28, 2007

Nicholas Johnson Blog Entries Regarding Optiva

"What the Credit Union Feb. 28 Meeting is Really About" in Nicholas Johnson, "UI Held Hostage Day 398 - Feb. 23 -- Optiva," February 23, 2007

"UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 392 - Feb. 17," February 17, 2007

Nicholas Johnson, "UI Held Hostage Day 62 - Revisiting Optiva," January 17, 2007

Nicholas Johnson, "Seattle's Optiva," October 23, 2006

Nicholas Johnson, "Optiva," October 13, 2006

Others' Blogs

Open Country (Maria Houser Conzemius), "'Optiva' A Sign of the Times," February 27, 2007

Cintara's POPwink, "University of Iowa Community Credit Union may Optiva Out of New Name," February 18, 2007

References

The Credit Union Membership Access Act of 1998, Sec. 2(4)

The Credit Union Difference," on the site of the USA Federal Credit Union

National Credit Union Administration

National Association of Federal Credit Unions

State of Iowa Credit Union Division

Iowa Credit Union League

The Credit Union Journal

UICCU

Optiva Video
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