April 2001
Opening the Doors Wider:
The Board of Governors Votes to Expand
by Lindsay Thompson
A long habit of not thinking a thing wrong often gives it a superficial appearance of being right. - Thomas Paine
In February the Board of Governors adopted this resolution:
WHEREAS, the elected Governors of the Board of Governors of the Washington State Bar Association are elected from the nine Congressional Districts of the State of Washington as a means to provide geographical representation for all lawyers within the State of Washington; and
WHEREAS, the Board of Governors of the Washington State Bar Association recognizes that the selection process does not provide input and insight from the public its members serve as a profession, and further does not always result in the election of a Board of Governors that is representative of the changing membership and geographical array of the membership of the Washington State Bar Association; and
WHEREAS, the Board of Governors and the Washington State Bar Association can and will benefit from the insight, advocacy and unique knowledge of the needs of such groups, and which insight, advocacy and knowledge would benefit the Board of Governors in achieving its mission and in representing its members; and
WHEREAS, the Board of Governors of the Washington State Bar Association recognizes that examples of underrepresented groups of attorneys may, depending upon the outcome of any Board election, include women, young or new lawyers, government lawyers, lawyers engaged in criminal defense or in the prosecution of criminal matters, lawyers from remote and outlying parts of the State of Washington and outside the State of Washington, and ethnic and sexual minority lawyers; and
WHEREAS, the Board of Governors of the Washington State Bar Association is authorized by the authority of the Supreme Court of Washington and RCW 2.48.030 to create seats on the Board by means provided in the Bylaws of the Association, and wishes to create "at large" seats to be appointed by the Board of Governors to underrepresented members who may provide representation, knowledge and benefits to offset the structural deficiencies which operate as a barrier to election;
NOW, THEREFORE,
BE IT RESOLVED
The Washington State Bar Association Board of Governors hereby creates two "at large" seats, the occupant of each to serve a three-year term, and to be selected as follows: the first to be filled by election by the Board of Governors from "underrepresented attorneys" as that term is generally defined above and may be further defined in the Bylaws of the Association or by members whose election will provide for more diversity among the Board's members following the election of Governors by the general membership in 2001; the second seat to be filled by election by the Board of Governors from "underrepresented attorneys" as that term is generally defined above and may be further defined in the Bylaws of the Association or by members whose election will provide for more diversity among the Board's members following the election of Governors by the general membership in 2002; and
BE IT FURTHER RESOLVED that the Board of Governors shall fill each vacant "at large" seat designated to be filled by appointment from nominations made in order. The Governors shall fill such seats with a representative to serve as Governor who will, in the Board's sole discretion, have the experience, knowledge of the needs of those lawyers whose membership is or may be historically underrepresented in governance, or represent some of the other diverse elements of the Association's members, to the end that the Board of Governors will be a more diverse and broadly representative body than the results of present methods of election allow.
BE IT FURTHER RESOLVED that the president of the Washington State Bar Association shall promptly appoint a committee to draft necessary revisions to the Bylaws of the Washington State Bar Association to effect this Resolution with a view toward approving those revisions at the next meeting of the Board of Governors held after adoption of this resolution.
I start with the text so you can read for yourself what we did, rather than give you some spin that makes me look good. I drafted the above, so the board directed me to explain why we did what we did. My resolution was based on the work of others, and I will bring them into the story in a few paragraphs.
"Can you expand the Board of Governors?" a number of members have asked. Yep. It's in the State Bar Act, RCW 2.48. 030: the BOG can be up to 15 members, made up of the president, one member from each congressional district, "and such additional members elected as provided for by the bylaws of the association." Over the years the board has grown with the state, adding members as new congressional districts were created. The last time that happened was in 1992, when the present 9th District was formed, and Jim Handmacher was elected the first incumbent.
People have proposed creating additional seats for various reasons for a long time. WSBA General Counsel Bob Welden found a memo from 1975 analyzing how it could be done. In the 1970s, two King County at-large seats were created to accommodate representation of the large population of lawyers in King County. The Young Lawyers Division argued for the creation of a seat for them at various times in the 1980s and 1990s.
In the mid-1990s a Bar task force spent over a year looking into whether the WSBA needed to alter its governance models. Chaired by now former president Wayne Blair, the task force suggested creating a house of delegates (like the American Bar Association, Oregon, and a number of other states have), and/or expanding the board to create a citizen representative, a young lawyer member, a "diversity representative," and a president-elect who would sit with the BOG but have no vote. Among the values the task force believed Bar Association governance should embody were "representation of diverse interests and viewpoints (e.g., geography, race, ethnicity, national origin, language, age, gender, disability and other perceived differences)"; "broad, inclusive involvement (removal or decrease of institutional barriers to participation and engagement in the life and activities of the state Bar, whether those barriers are perceived or real)"; "development of high-quality state Bar leadership"; and fostering of unity and cohesiveness through increased participation and stake holding in governance," among others.
The Board of Governors received the report, debated it some, pretty much declared it too expensive and radical, or that adding seats would balkanize the board (I think that was the phrase I used from my seat on the sideline of the meeting), and filed it on the Shelf of Well-Meaning Task Force Reports We're Going to Ignore.
Bits of its recommendations crept into the work of the board, like the creation of the president-elect position. The idea for that post was to make it possible for someone who hadn't been a BOG member to be considered for the presidency. By sitting in for a year, the president-elect gets up to speed on what's up, and then moves into the head chair.
So far that hasn't worked. It has been useful to get presidents up to speed before they take office, but we still haven't elected anyone who wasn't a BOG member first (only one WSBA president ever was elected from outside the BOG alumni association, and that was nearly 30 years ago).
And we still haven't elected a non-white president. Not surprising, in a way, when you consider we've only had one member of the BOG who wasn't white, and that was in the late 1980s.
We haven't had any young lawyers elected either. Many have looked at running and concluded that the election system rewards being well-known, and frankly, it does. There's no question my having been editor of Bar News for seven years helped me get elected, just as it did four of my seven predecessors at the magazine when they ran.
There are parts of the state that have never had a member of the BOG and probably never will, because of population distribution in districts. Take the 6th District: when we elected Dale Carlisle of Tacoma, president-elect last year, we had a chance to appoint someone to fill the rest of his term. We chose Brooke Taylor of Port Angeles. No one had ever gotten elected from the Peninsula. Governors from the 6th always come from around Tacoma, because that's where the population is, and always will be.
Many people, including me, have said along the way: "Well, look, in a given year one or two seats up for election go unopposed. People should just run, and the problem will fix itself."
But it hasn't. Members of the board, trying to encourage more participation, have worked hard for years to recruit bar members to run. But human nature is such that we tend to recruit from whom we know, and most of us know people who are like us, and if we're an all-white board, it stands to reason we're going to stay one.
Which we have.
Flash forward five years from the Task Force on WSBA Governance Report. WSBA President Dick Eymann, a leader in a hurry, took office having spent a year on the BOG and not having spent much time in the usual routes to the job before that. Unfettered by the usual ways of seeing things, he set up a committee to look at bringing more minority lawyers into bar governance at all levels — committees, sections, the board — and appointed Jim Deno, a governor from Everett, as chair.
Jim worked very hard and had lots of meetings with minority lawyers and heads of the various minority bar associations around the state. I was on the committee, and we learned a lot in the process.
President Eymann wrote about his minority and young lawyers expansion plan several times in Bar News, and the idea generated a good deal of debate among members in the pages of the magazine and in communications to members of the board. Eymann and other supporters wanted to get a consensus, if possible, around the idea, and work out the details later. After discussion at almost every meeting in 2000, at its September meeting the Board of Governors voted first to endorse the concept of creating a racial minority seat. Under one plan promoted by the minority bar leadership, the seat would be created for 12 years, and would be rotated among the principal minority bar groups, one term at a time.
The board asked the minority bar associations to draft the means of implementing the plan, hoping to be able to get someone seated in 2001. Other members of the Association, reading about the plan, contacted members of the board and expressed concern that the plan raised issues under the 14th Amendment of the U.S. Constitution. The board sought the advice of inside and external counsel (the latter, pro bono), and concluded with some disappointment that there was no way to carry out the plan without significant risk that it might not pass constitutional muster. While a couple of other states have created such seats, neither has been sued or apparently even challenged over the issue. We felt if we were going to do this, we wanted to do it right.
So we regrouped. At our January meeting in Olympia we advised minority bar leaders of the situation. Governor Brooke Taylor suggested creating a new seat but defining it more expansively to represent "underrepresented lawyers" within the Association. The board could look at its membership after the spring elections, see where it was not adequately representing groups within the Bar (for example, government lawyers, minority lawyers, rural lawyers) and fill the seat accordingly. There was debate about whether to make the seat a one-year term (to have more turnover) or the standard three years (better, the general response was, as we don't want to create second-class seats, it can take a year to get fully up to speed as a governor, and the State Bar Act seems to mandate three-year terms anyway).
This idea intrigued members of the board, as it could address the diversity issue but avoid the potential pitfalls of the September plan.
I felt, as I thought it over, this was all true, but the effect could be that it would take a lot longer to get done what we set out to do — jump-start a more diverse membership on the Board of Governors. So I mentioned that I was thinking about offering a proposal in February to create not one, but three new seats: one for underrepresented groups within the Association (the Taylor Plan); one for Young Lawyers (The Eymann Plan/Governance Task Force Report), and a seat filled by a member of the public (Governance Task Force Report/my observation of Oregon, which has four such seats and considers it a great success in making the work of the Bar there, and its service to the public, more visible).
No one really objected to the idea when I floated it. A couple of weeks later I sent out an e-mail and asked again if there were objections. Some members wanted more time to think about it.
In the meantime, Governor Jim Deno drafted and circulated a resolution to effect the Taylor Plan. I took it and redrafted it to create three new seats, and sent it out shortly before our February meeting, christening it "Son of Deno."
When I offered my resolution, I laid out the reasons for doing so. Chief among them was that the BOG has historically been a pretty conservative, slow-to-change outfit. It met in closed session into the early 1970s, and opened up only after then-Attorney General Slade Gorton issued an opinion that they had to. They fired a Bar News editor for trying to tape-record their meetings — his effort to help him accurately report their work in the magazine. They opposed, at various times, members' demands to apply the open meetings and public records laws to WSBA operations in the 1980s. Receiving the Governance Task Force Report, they considered it and pretty much shelved it.
I was one of those, from my sideline seat as Bar News editor, who opposed the Governance Task Force Report's recommendations. I thought a bigger board, or a House of Delegates, would "balkanize the bar." Looking back on it, I believe the bar is balkanizing on its own, not because we acted, but because we didn't. Members are opting out of state Bar activities and leadership when they feel they have no place.
It's easy to say people who feel that way ought to just get a grip and try harder, and many members feel that way. But for most people, perception becomes reality over time, and the upper rungs of WSBA leadership are seen by an increasing number of members as a closed club. There's more than a little truth to this. How to get ahead in the WSBA is not set out in any coherent form. It exists as folklore and sporadic announcements in Bar News. People take a look, find it too complicated, or appearing stacked in favor of certain kinds of lawyers, and go off to take part in minority and specialty bar associations where they feel they can make a difference in a reasonable period of time.
So I changed my mind. Winston Churchill once remarked he'd eaten his words many times in a long career and overall found them a wholesome and satisfying diet. I felt we had an opening to act boldly, and that we should do so.
We had a lengthy debate over my motion. Members of the board had the most trouble with the public-seat idea. It was just too new, and hadn't been part of the debate before. In time I agreed to let that idea be the subject of further study.
Members also felt, as the debate evolved, that two Taylor Plan seats would work better than one Taylor Plan and one Young Lawyers seat. I figured as a practical matter, YLD members, being not just under- but never-represented, would be included in the Taylor Plan, and agreed to that amendment as well. Some members felt we ought to send the idea out to the membership and seek input. There I balked. We spent a year debating and seeking member comment on creating one new seat, and got a ton of response. We voted to do it. Creating two seats on somewhat different terms of selection didn't make enough difference to me to warrant spending most of 2001 redebating the core idea and the particulars of one plan over a slightly different plan. So I called for a vote and we adopted the plan 8-0, with two abstentions by members who didn't oppose the plan, but thought we should consult the membership more widely before acting.
A committee made up of me, Brooke Taylor and Bill Hyslop of Spokane is drafting a Bylaw amendment to put the plan into effect. We hope to be able to start filling the seats this summer. I don't see the bylaw frontloading the selection process with directives. The board should have the leeway to determine the representation needs of its members from time to time based on the evidence they find and the good sense they collectively apply to the task.
There are members who see any question of "rights" or access to power as a zero sum game: there must only be a finite number of rights, or a definable quantum of power, and giving some to someone who hasn't had any, or as much, must therefore mean it is being taken from someone else. There are those who think they are somehow being held to account for the wrongs others did in the past.
I don't buy those arguments. The rhetorical flourishes of the law — all the equal justice stuff — mean little if we as a profession are not willing to extend ourselves to include all of our own members fully in the privilege of self-governance. Change is hard, and requires thinking anew and acting anew. "We choose to go to the moon," President Kennedy said 40 years ago, "not because it is easy, but because it is hard." Sometimes doing the right thing is hard, too. But I believe we have done the right thing by opening up our governance, even if it is just the first of many further steps to finish the journey.
Lindsay Thompson represents the 7th Congressional District on the Board of Governors, and was Bar News editor from 1988 to 1995. He practices law in Seattle.
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