Following passage of the HB2 repeal bill, The Pilot opined that “North Carolina is the better for having finally put the HB2 debacle behind it.” I disagree, as the real debacle seems to be an abandonment of two principles of conservative governance.
Note that I refer to conservative governance, not conservative politics. Too often in recent years, conservative politics has lost sight of conservative governance. HB2 has been absolutely astonishing to me, as political jockeying has seemed to be the entire purpose behind not only the legislation itself, but also the brouhaha in the media following adoption.
I have a unique perspective on legislation, given my career in city management. As a city manager, I was responsible for the delivery of municipal services to our citizens. Another equally important role was to provide information and advice to the city council as they established municipal policies.
Those policies are implemented through two main mechanisms. The first of these is adoption of the annual municipal budget. This budget determined, through the provision of funding, what services we would provide.
The second way that municipal policies are implemented is through the adoption of local laws called ordinances. Generally, one can think of ordinances as a means of providing for the local health, safety and general welfare.
Ordinances can cover a wide range of topics. During council discussions of various issues or problems, we at times came to the conclusion that the best way to address the problem was to draft a proposed new ordinance. My staff and I were then tasked to develop the substantive language for the new ordinance.
One bedrock principle of conservative governance that I always followed was to ensure that the council never considered a new ordinance that could not be enforced. They should not put a law on the books that had no enforcement mechanisms. Penalties had to accrue to violators of ordinances whether they were monetary penalties like fines or criminal penalties like jail time.
Likewise, a new law should not be adopted even if it contained penalties, if we did not have the resources to enforce it. If no staff were tasked with enforcement duty then the law served no real purpose and should not be adopted. Governments should not create endless numbers of laws that are not enforced — or worse, selectively enforced.
In one of the cities where I worked, an earlier council had adopted an ordinance that specified the size and color of the warning flag that was required to be hung at the end of a pole being pulled on a trailer. Now really, among all the laws that the police had to enforce in that city, did anyone think that they would be stopping vehicles and measuring the size of their warning flags? That ordinance should never have been adopted.
And I would say the same about HB2. One of the governance problems of HB2 is that there were no penalties for violation.
Beyond that, how did our legislators think it was going to be enforced? Were bathroom monitors going to be assigned to every public restroom? Did they even mean for it to be enforced?
Our legislators created a law without penalties and without a means for enforcement. So from a governance standpoint, what purpose did HB2 serve?
There is another aspect of HB2 that reflects an abandonment of conservative governance. For many years, a fundamental belief of conservative governance was that government that is closest to the people is the best government.
At the local level, citizens can more easily access and express their opinions to their local elected and appointed officials. They may see them at the store, at church, or the post office if they do not already know them personally. Speaking from personal experience, citizens are not shy about expressing their views to local officials.
And yet in HB2, a higher level of government decided that they know better than local officials what those local communities need. The irony is that those same state level officials will complain bitterly about the federal government meddling in issues best left, in their view, to the state.
So the debacle for conservative governance represented by HB2 continues: Laws can be passed that cannot be enforced, and the power of the government closest to the people is usurped by legislators sitting in the faraway capital city.