A Change in How the CAC Director is Chosen

Good morning.

“And the beat goes on………………………”

Tuesday is Primary Election Day in California. Please vote.

MOVING SELECTION OF THE CAC DIRECTOR FROM THE GOVERNOR TO THE COUNCIL:

California AB (Assembly Bill) 2610 introduced by Assemblyman Niello (scroll to the end for the exact wording of the Bill) would change the way the Director of the California Arts Council is chosen. Currently, this is a position appointed by the Governor. This bill would take away the Governor’s power to make this appointment and assign that responsibility to the Council itself (which would continue to be appointed by the Governor – except for two members appointed one each by the Senate and Assembly.) Most of the states have this system.

On its face this makes sense. It makes the hiring and firing of the Director a process similar to virtually every nonprofit arts organization in existence wherein the Board (in this case the Council) - when faced with a vacancy in the (Executive) Director chair - does its due diligence, conducts a search for the best candidates and makes a selection based on professional criteria including experience, training, skills, vision and the like.

Theoretically it removes the “political” aspect of the job being filled by a Governor who may often not have as his or her highest priority the professional qualifications of candidates. To be perfectly candid, this appointment, like other political patronage, has been frequently made on the basis of favors and debts for political support. It has been part of the spoils of victory. The change would arguably go a long ways to insure that the position was filled with a well qualified candidate; someone with experience as an arts administrator and familiarity with the issues of the sector – a professional. Moreover, so the argument goes, this would allow (as it clearly has in other states) a qualified and successful Director the ability to stay in office across different Governors and not automatically be “termed out” as it were every time a different political party came into power in the Governor’s office, and that stability in the office would allow for continuity. (Though it might be argued that some kind of outside "term" limits on the Director's tenure is not a bad thing).

The Director has been responsible for running the day to day operations of the agency including program and grant oversight, with the Council ultimately given the power to approve or not approve the recommendations for awarding grants made by the agency based on the peer review panels. There has been a separation between the Director as the Governor’s appointee and the Council (also largely Gubernatorial appointees), and while this distinction seems blurry, the Director has ultimately reported to the Governor and not to the Council. Only the Governor has had the authority to fire the Director – who like all political appointees serves at the Governor’s pleasure. This has given the Director a measure of independence and made the position firmly part of the Executive Branch. It has been a sort of “separation of powers” model.

AB 2610 would change that relationship. The Council would hire and fire the Director and the Director would report to the Council in all matters.

The question is: Is this a good idea?

As acknowledged above, on its face it promises to de-politicize the appointment, resulting in finding the most qualified candidate for the job and ostensibly giving the person in the position more of an opportunity to stay on the job for a longer period of time. This professionalizes the position.

But there are arguments on the other side of this question. First, if you take away the Governor’s right to appoint the Director, some have argued that this is likely to make the Governor less interested in the agency and will result in the Director having diminished ties to, and influence in, the horseshoe (that’s what the Governor’s inner office staff is called due to the shape of the office configuration). That may in turn weaken the agency within the state government apparatus and make it harder to effectively lobby for increased or sustained funding support. This line of thinking holds that the Director will have less of a relationship with the Governor or Administration and thus virtually no platform on which to argue for the agency as part of the budget process. No longer a member of the Governor's Cabinet, the agency becomes an orphan without portfolio. It will make it axiomatically harder to maintain a voice within the Administration.

Those in favor of the bill can, I think, justifiably argue that the Governor would still have nine appointments to the Council itself and those ties could be stronger and closer than whomever s/he might appoint as the Director and would be more than enough to maintain a strong link to the Governor’s office and thus within the Administration. It might also make the agency more of a nonpartisan entity as it would no longer be tied to the sitting Governor.

Doubters would counter-argue that as most of the Council appointments have been patronage too, and as those appointments are more trophy or window dressing than substantive, and not enough to off set a Governor having his or her person in the post and part of the Administration.  Anything, so the thinking goes, that lessens the Governor’s direct tie to the agency might compromise its power.   It isn't who a Governor appoints as much as that s/he gets to make the appointment of someone that matters here.

I suspect that if the agency Director is not a gubernatorial appointment, that the person who holds that office will be regarded differently - perhaps much differently - by the rest of the Administration and probably even the Legislature and its staff.  S/he will be somewhat of an "outsider".  I don't know if ultimately that would be a good or bad thing, but I suspect it will make it, if not more difficult, certainly more challenging for the Director to be effective - especially in the budgetary process (which is 80% of what business in Sacramento is all about).

It’s hard to decide what might happen along this line of thinking and no doubt it might be different with different Governors.

Another concern is that if the Council holds the power to fire the Director, this may give rise to micromanagement of the agency by the Council. Council members exert considerable influence on the conduct of a Director as it is; more power in the Council might make the Director less independent.  By and large the Board and Executive Director relationship of most arts organizations works fairly well. Yet, a state agency is arguably not the same as a 501 c 3 nonprofit and shouldn’t necessarily try to emulate its processes. State government is about politics, nothing more so than the budgetary process. Some might argue that a Director with no ability to be ‘protected’ as a Gubernatorial appointment, and no direct connection to that Governor’s Administration may be handicapped, and may lose the ability to act independently from a Council bent on having things their own way. Not a problem unless someday you get a Council that wants to run the show itself.  Council members themselves do not operate in the day to day ecosystem of the state’s political apparatus, and, for the most part, their ties to the Governor don’t afford them knowledge of how things really work or how power is really used within the system. 

I know of at least two instances where the state arts agency Directors in a system such as that being proposed, left because they felt their Councils wanted them to be puppets and the Council wanted to run the agency themselves. Good leaders lost to a different kind of politics. That makes it harder for those states to attract strong leaders.

But far and away the biggest argument against this bill in my mind is that such a change might just give a Governor who was looking for an excuse, more cover for ignoring the agency’s needs and having little to do with it, and that might negatively impact Gubernatorial support for the arts. And the simple fact is that if the Governor is not supportive, it really matters very little that the Legislature is. I worry then about the timing of this bill and that it might make it easier for forces so inclined to beg off any kind of state public support for the arts. As states continue to face draconian economic choices, we are likely to continue to see more attempts to gut (and eliminate) state funding to the arts across the country. I worry this bill might inadvertently aid and abet that kind of effort here in California by making the CAC ever more isolated and vulnerable.

Now are those arguments against this Bill enough to oppose it? For most observers, I think probably not.  And so I think on balance this probably is a good idea.  I just don't know about the timing.

While it would be nice to figure out a way so that the appointments to the Council were also somehow based on merit and experience and skills, and there was some process to find the very best people to sit on the Council -- people who would find the best Director and not micromanage or otherwise usurp that person’s power or authority so that the best candidates would be attracted to the post -- there is really no way to guarantee those kinds of appointments. These will remain (largely) Gubernatorial appointments and political patronage at their heart. While it is not unheard of to get at least a couple of people who want to think of the agency as their own personal fiefdom, my own experience - having sat in that chair - is that the vast majority of those appointed to the Council are smart, caring and dedicated people who bring a variety of skill sets to their service. Not all are as dedicated in terms of time and energy as are others of course, but virtually all of them take seriously their charge and are committed to protecting the agency and its integrity. Few really want to micromanage a Director, and most are vigilant against any of their group exceeding their own authority. But it has been a problem in other states. I don’t think those arguments are probably enough to oppose the Bill. On balance I think political influences of who a Governor appoints to the Council have actually served the agency well. Many appointees are high-profile, personal friends of the appointing Governor and take the post precisely because they care about the arts in our state. Council appointees generally “get it” and to the extent they are willing to be spokespeople and active lobbyists for the arts, they are effective. How this bill might impact their willingness to really push a Governor who sought distance from supporting the agency remains unknown.

The ultimate issue isn’t who appointments the Director, nor even of the existence of the agency itself – the real issue is the principle of state support for the arts. I would hate to do anything that threatened that support as a principle. So I worry not about the essence of this bill, but more about its timing. I’m just not sure it’s the right thing to do right now. I worry about making it any easier for any movement away from state support for the arts in California – irrespective of what the level of that support may be at any given time. Because once we cross that line, if we ever do, it will be much harder to re-establish the principle.  And there are people in Sacramento who would applaud the state crossing that line and letting the arts fund (and fend for) themselves.  And that pressure may very likely increase in the near term.  I wonder then if in the future, the primary job of Council members became fundraising, would as many people be willing to serve?  Would the Council be expected, like large cultural institutions are frequently driven to expect of their Boards, to make hefty donations, and would that discourage people with less than deep pockets from serving on the Council?  Would success by a Council in raising private funds merely fuel the argument that the arts ought to be entirely privately funded?  I don't know what might happen.  I am only asking questions.

On balance, I don’t think it will matter because I think most people will favor this bill and I think it will likely pass. In preparation for this blog I asked a number of people in and out of California what they thought. There was a little opposition (as stated herein), but not much. Most of the people I talked to (and people whose opinions I respect very much) were supportive of the concept. Some were unsure, but most were in favor. The current agency Council and Director favor the bill and I am informed the (current) Governor does too. I have no idea what the candidates might think about this move. Long time Sacramento arts lobbyist, Kathy Lynch, has expressed similar reservations as set forth above, but the California Arts Advocates Board met, and after discussing the pros & cons, decided to endorse the bill and support its passage. The bill is also supported by Arts For L.A. The CAAE Board met and decided not to take any position for or against at this time. I am not aware of whether any other umbrella organizations representing various sections of the arts field in California have taken any position.  I know of no formal opposition to this bill at this time.

I think it is worth the field discussing and everyone should consider the pros and cons and the implications and come to their own conclusions. The relationship of the agency Director to the Council and to the Governor is an issue that crops up, from time to time, in various forms all across the country. Whenever we make changes to a structure, we should make sure we think it through, because we end up living with the change for a long time to come. It’s important to make sure we get it right.

I would hope, if it does pass, that the Council develops, with public input, protocols (including criteria) for the process of hiring and firing future Council Directors and suggestions to the Governor as to criteria for Council appointments, puts those in writing as official ‘policy’, and seriously considers maintaining some kind of line between itself and the Director (including such things as possible outside term limits and a prohibition on the Council hiring one of its own for the post).

I leave it to you to draw your own conclusions as to this bill.  I myself am torn.

Here is the NEW Bill language in its entirety:

ASSEMBLY BILL No. 2610

Introduced by Assembly Member Niello
February 19, 2010
An act to amend Section 8754 of the Government Code, relating to state government.

legislative counsel’s digest
AB 2610, as introduced, Niello. Arts Council: officers and employees.
Existing law, the Dixon-Zenovich-Maddy California Arts Act of
1975, establishes an Arts Council that has specified duties related to
the arts. Existing law requires the Governor to appoint a director and 2
deputy directors.

This bill would require that the council select the director. This bill
would make the director responsible for, among other things, hiring
council staff.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: no.

The people of the State of California do enact as follows: (old language to be deleted in parenthesis; new language in italics)
SECTION 1. Section 8754 of the Government Code is amended
to read:

The (Governor) council shall (appoint) select a director (and
two deputies) for the Arts Council (who shall serve at the pleasure
of the Governor). The council may delegate to the director the
responsibilities for carrying out council policy.

The director shall assist the council in the carrying out of its
work, be responsible for the hiring of council staff, including, but
not limited to, deputy directors, be responsible for the management
and administration of the council staff, and perform other duties
as directed by the council.

I believe it has already passed the Assembly Committee and has moved to the Senate and awaits a Committee hearing date.

Have a great week.

Don’t Quit.
Barry