Consent vs. Consensus: A Classical Case

One of the things I promised to cover in the Blog, was an example of Consent that is so typical, so representative, so demonstrative that it deserves to be called a case of “Classical Informed Consent” . . . as opposed to “Consensus.”

In thinking about an example, many came to mind. One that I’ve not talked about – or even thought — about for years, is an absolutely beautiful case of classical Consent-Building that was pulled off by Tim Carlson in the mid-1980s in Jackson, Wyoming.

What Classical Consent-Building Looks Like

Here are some of the project highlights, as I remember them:

The town of Jackson hired ARIX, Consulting Engineers from Colorado, to redesign the town’s waste water treatment system. One of its young engineers, Tim Carlson, served as the project manager.

Early on in the project, Tim showed the Town Manager what he had come up with, thus far, as possible alternative treatment schemes, asking for his “input.”

One thing that all of his alternative solutions had in common was the location of a holding pond. (The treatment process, evidently, required that the effluent — which we non-experts, incorrectly, call it “sewage” — be held during the water treatment process in a lagoon for some time.)

“Well,” the Town Manager said, “that’s fine, but you’ve absolutely GOT to find a different location for that holding pond.

“You’re from out-of-town, so you wouldn’t know, but where you’ve put it is LITERALLY in the backyard of the richest, most powerful person in the whole valley.

“He would stop this project – if you propose the holding pond where you are proposing it – either by end-running us politically, or by tying the project up in litigation till the cows come home!”

Tim explained that the location in question really WAS the best location, that all other locations would require that all of the town’s waste-water be pumped uphill as part of the treatment process.

With the location that he was proposing, gravity would take care of that chore. The Town Manager responded by saying: “Don’t even THINK of proposing it there; you have NO IDEA how powerful, difficult, and ruthless THIS particular person is!”

Getting an Opponent’s Informed Consent

What Makes an Implementation Genius

Being a good student of SDIC, Tim said “Thanks for your input” and then promptly went to see this particular stakeholder (whom I’ll call him “Mr. X” because I cannot remember his actual name.)

This Mr. X was feared by public officials across the board. The Town Manager wasn’t exaggerating in his description of him. Other students of mine have had interesting encounters with the very same Mr. X! And yet, Tim didn’t hesitate to go knocking on his door, asking if they could talk over a cup of coffee.

Tim introduced himself with saying something along the lines of:

“I’m the guy redesigning the town’s sewage-treatment system. I need to show you some of the preliminary ideas I’m considering because they involve you . . . Well, actually, your property.

“Because water likes to flow DOWN-hill, and because you are located right where it wants to flow, I’m thinking that that’s where the holding pond ought to go . . . As they say: right in your backyard.

“And, because I figured that while you might not be all that interested in sewage-treatment, you probably ARE interested in a waste-water holding pond in your backyard . . . That’s why I came to show you my idea.”

Mr. X’s response:

“Ha, ha, ha . . . son (Tim WAS young enough to be his son), you’re NOT – in fact NO ONE is – going to put ANYTHING into MY backyard! . . . No sir!!!

“But, you ARE welcome to a cup of coffee.”

Tim stayed for coffee and kept up his effort to get Mr. X’s Informed Consent:

“I knew you were going to say that. In fact, I don’t blame you. No one wants a waste-water holding pond in their backyard; especially in a beautiful place like this.

“But, you see, geography and geology are conspiring to put it there. There ARE alternative places where I could put it, but they all would fail to take advantage of gravity, and require that the waste-water be pumped uphill as part of the treatment process . . .

“So, this really IS the logical place for it.”

Mr. X wasn’t about to change his mind, and gave numerous LEGITIMATE and rational reasons as to why he couldn’t possibly be in favor of placing the waste-water in his backyard:

“Son, let me show you something out in this little stream. It’s not just that I don’t want the holding pond in my backyard. I’ve been raising phenomenally beautiful trout in this little stream that your pond would be impacting. Wyoming Game and Fish Department biologists have been working with me in this very successful effort. I’m NOT about to let you interfere with that.

“Another thing: I notice on your drawing here that you would dig out a big – to me — ugly rectangular pond. When you DO build a pond SOMEWHERE, would you consider an irregular shape that is more natural-looking?

“One more thing: Wherever you are going to build that pond, you might also consider putting an island in it. There have been some water fowl around here that, I have noticed, have great difficulty keeping the coyotes out of their eggs. If they had an island, I think, they might do lot better.

“Here’s yet another reason why you can’t put your pond here. The way you have it laid out, it would interfere with one of the elk herds that come right through the area that you would be blocking. As a minimum, you’d have to split the pond into two, or make some other provision for the elk.

Responding to Mr.X’s rationale for being opposed to the proposal, Tim replied:

“Wow! . . . I didn’t know all that! . . . You make some good points! . . . Let’s bring that fish biologist from the Wyoming Game and Fish Department you’ve been working with into the discussion.

“Let’s bring in their most appropriate person to help explore whether an island WOULD work, and would be helpful.

“Let’s talk to their elk expert to make sure I don’t do any inadvertent harm to that part of the ecology . . .

“Let’s see what a holding pond might look like that takes all of these issues into account, and yet prevents us from pumping effluent uphill when we could have gravity work for us.”

Why Would Mr. X Ever Give His Consent?

To make a long story short . . . In Mr. X’s backyard is precisely where the holding pond wound up!

Make NO mistake, the Town Manager knew what he was talking about when he said: “Don’t even THINK of putting it there.” He was correct in assessing that for Mr. X to torpedo the whole project – if that’s what he chose to do — would be like taking candy from a baby.

Furthermore, Mr. X really, really, really did NOT like the idea of a waste-water holding pond in his backyard. There was no question, he was OPPOSED to it.

But, because of:

  • Tim’s brutal honesty,
  • Tim’s willingness, and courage, to argue for the most unpopular — but most responsible — alternative,
  • And because of how Tim went about it all, including . . . his willingness – his eagerness – to incorporate any and all ideas that would enhance the project’s environmental consequences . . .

Because of these critical, but perfectly attainable factors, Mr. X decided to “grudgingly go along” with Tim’s unpleasant proposal. Essentially, Mr. X Consented to its implementation.

As I remember, when it was all over, the US EPA recognized Tim’s outstanding work with an award for being one of the most sensitively designed environmental projects.

THAT, folks, is whatInformed Consent looks like in real life. This isn’t the exception, this is a CLASSICAL case.

Today, Tim Carlson lives in Grand Junction, Colorado, where he has created and worked with a number of environmental organizations, including the Tamarisk Coalition.

Focusing on Your Opponents to Build Consent (an Example)

In winding up the August 14th Brownbag session, Hans promised to post an additional illustrative example on this blog.
The points this example is illustrates:

  1. Consent-Building has you focus your outreach efforts, your communications efforts, on your fiercest opponents.
  2. Focusing on your fiercest opponents is counter-intuitive . . . which means that your brain will come up with a dozen excuses why – this time – it’s not necessary, . . . or not useful, . . . surely a waste of time.
  3. Being committed to Consent-Building means you focus on your fiercest opponents in spite of all that.

We can illustrate these points without using the names of the parties involved (even though in the Brownbag session, Hans did mention the agency).

Journalist and Ever-the-Critic Mr. Z

The Director of Sport Fisheries in one a mid-west state Wildlife Department was routinely criticized by the columnist – the Fishing-Issues Columnist – of the state’s largest newspaper. Let’s call him “Mr. Z.”

No matter what the agency did in managing sport fishing, Mr. Z always knew better. In Mr. Z’s eyes, the agency – which really meant the director of Sport Fisheries – could do nothing right.

Because Mr. Z’s column ran not only in the state’s biggest newspaper, but was also picked up by newspapers throughout the state. This self-appointed critic had – in sense – a giant bullhorn, which he used to make his living criticizing the state’s professional fish biologists and their work.

The Director of Sport Fisheries had long ago learned that it was futile to try to reason with Mr.Z. He wasn’t interested in the biological realities; he preferred to sling mud, make accusations, and deal in innuendos.

When Disaster Struck

A time came when all it did was rain. It rained, and rained, and the rain just kept raining.

Rivers and streams flooded. One of the brown, swollen streams flooded the department’s fish hatchery where millions of tiny trout were being raised in preparation for release into all of the state’s trout streams a few months later.

This was a disaster; the hatchery was the only trout hatchery. If these fingerlings did not survive, there would be no trout season that year.

Could the fingerlings – even with the addition of the medication the agency added to the water — survive in the brown floodwater that had overwhelmed the hatchery? The headwaters of the streams where they were to be released later were less polluted, but the fingerlings were not ready to fend for themselves yet; they were still too dependent on the hatchery feeding.

Hard Decision

The Director of Sport Fisheries – and his staff – needed to make some decisions.

The options, as they saw them, were:


  1. Keep adding medication to the polluted fish tanks holding the fingerlings; hoping they’ll recover from the shock and survive until their optimum release time later in the spring. (There was, of course, the distinct possibility that they’d all die before they were old enough to be released.)
  2. Take the fingerlings out of the polluted hatchery now and, — in spite of their immaturity – distribute them all over the state to the many headwaters. (With this option too, there was the distinct possibility that they’d all die after being released.)

Even Experts Disagree

As is often the case, not even the experts – i.e. the fisheries biologists within the department – agreed on which of the two options was the better.

And, the external stakeholders – including the trout fishermen, the sporting goods stores and other businesses who depended on a good trout season, etc. were bound to be of many different opinions.

Of course, all the opinionated pundits in the various sport fishing media – including the perennial Mr. Z with the biggest of all bullhorns in the state – were going to second-guess the agency no matter what it did. They all were bound to have known better than the head bureaucrat.

What an Implementation Genius Would Do?

OK . . . Remember the Agreement / Disagreement Scale we discussed in the Brownbag session (the diagram on slide #11)? Well, the Director of Sports Fisheries clearly saw Mr. Z as being pretty much on the bottom of that Agreement / Disagreement scale.

If the state was going to wind up without a trout season – Mr. Z was going to have a hay-day trumpeting how this was just another example of the agency staff’s incompetence.

The Director of Sport Fisheries had our SDIC training. He understood the need for focusing on the bottom of the Agreement / Disagreement scale.

On the other hand, he also knew – from experience – that Mr. Z was pretty much a lost cause. So, should he make an effort to reach out to Mr. Z? What was his communications strategy going to be – no matter which of the two options he chose for dealing with the flooded fingerlings?
Well, he put his Consent-Building training to work and reached out to Mr. Z.

He called Mr. Z on the phone. It was pretty much a one-way conversation in which he told Mr. Z something along the following lines:
“Here’s what’s happening: the hatchery has been flooded, and the fingerlings are in serious trouble.

I see two options for dealing with this disaster, but the fingerlings are in trouble no matter what I do. There’s a good chance there will be no trout season this year.”
He went on to explain “There are two options that I think we as an agency have, both of which are risky…

  1. We can try to medicate the fingerlings and get them to survive until their optimum release time.
  2. Or, we can release them now, and hope they’ll make it even though they have had a shock and are way too young to be released under normal circumstances.”

The Director of Sport Fisheries went on to explain his decision and the rationale…

“I’m going to implement Option #2 even though – if there is not trout season – it will clearly have been my fault for rushing them out into the field prematurely.

  • I’m telling you all this because I know from experience that you’re going to criticize my decision in all of the state’s newspapers.
  • I don’t expect you to support my decision. I fully expect that you’ll do your level best to make me and colleagues look like a bunch of idiots – as you always do.
  • But, I’m calling you to tell you my reasoning so at least you’ll have the facts right and will have had a chance to understand my reasoning even though you’re bound to find your usual ways of distorting it. But, having at least the basic facts, maybe you’ll do less of a distortion job on us than you usually do.”

How Opponents Respond

As you can surmise, this wasn’t the most friendly conversation. The Director meant what he said; he was convinced Mr. Z would do one of his usual distortion jobs on him. Nonetheless, if Mr. Z had at least the basic facts right, he might do a little less distorting of the the truth.

This was a pretty humble objective: of trying to make a critic do a little less of a hatchet job with the truth!
Well, that’s not what happened. Instead of a milder hatchet job on the facts, Mr. Z wrote a very good — and more importantly FAIR — column! He wrote about the director’s agony of trying which of the two terribly options was better – actually – “less bad.”

In fact, Mr. Z did a very good job of explaining the pros and cons of both options, the courage and dedication to mission that was required to make the decision that he did in the face of critics in the media like himself.

Overcoming the Reflex to Avoid Opponents and Conflict

Not only did that rather desperate (and most likely futile) phone call to Mr. Z move him way up on the Agreement / Disagreement Scale, the Director of Sport Fisheries felt that it caused a significant change in his relationship with that particular stakeholder.

Even when an opponent seems unlikely to change their unfair and biased view of your work, don’t give in to the temptation to avoid that person.

Instead, follow in the footsteps of Implementation Geniuses and see what happens. You too might be pleasantly surprised!

How to Resolve Conflicts with Professional Activist Opponents

The stakeholders I interact with appear to be a different “animal” than what are often discussed in the class and Brownbag. That is, they are professional activists that work for non-for-profit groups.

I have been working hard to communicate with them and apply many IPMP techniques, but they are demanding, not always respectful and appear to never be satisfied.

For example, just last week one threatened a lawsuit because we are more formally implementing public record request process.

My predecessor didn’t follow the formal protocol and now these PAIs are angry that they can’t call up and ask for documents to be emailed immediately.

Ultimately, I believe they will always object because that is their job, (their Raison D’Etre) and they have resources to do it!

What can I do about this?
Thank you for the question T.K. We think that more than a few of our Brownbag participants can identify with the fix you’re in. There’s just no shortage of dyed-in-the-wool stubborn opponents, even outside of a state environmental agency!

The stakeholders you’re talking about are exactly the interests (or “animals”) we talk about, worry about, lose sleep about, fret about, . . . and work on! You can expect the paid advocates for some of the for-profit stakeholders to play a more intense game of hardball than the staff of a nonprofit group.

Nonprofits generally pursue a mission that’s more likely to be in-line with the public’s interest than for-profit corporations who generally make no pretense of working for the public. Because it’s your mission to prevent and/or clean up environmental messes, we’d be surprised if nonprofits were your fiercest opponents.

The fact that these particular folks are paid staff working for a nonprofit group should not deter you from developing the group’s Informed Consent. After all, you are paid staff! You have lawyers, scientists, engineers, analysts, etc. working on your team . . . the team that came up with whatever it is you are proposing.
We don’t believe that the argument for your proposal’s legitimacy is so weak that you can only defend it against criticism from volunteer amateurs.

One of the biggest challenges of developing the public’s Informed Consent is mis-information, dis-information, lies, distortions, and confusion. One of the advantages of having professionals working for your project’s opponents – either as staff or as consultants — is that the public debate is less likely to be dominated by gross misunderstandings and distortions of the technical/scientific issues.

One thing that troubles us:

We are troubled by your remark that these folks – the opponent’s staff — are upset that you now “follow the formal protocol” for responding to requests for the release of public records. It looks like you might be giving exactly the wrong message to your stakeholders.

Please consider the following:

– The US Freedom Of Information Act (FOIA) was passed by Congress in 1966, not for some abstract reason about the desirability of transparency of governmental decision-making, but because there were persistent complaints government agencies were hiding information that – by right was public information. The accusation was that bureaucracies were hiding information, and the release of the information would make it clear what biases and/or hidden agendas their decisions were based on – rather than on the objective analysis of valid data.

– In the years after 1966, just about every state followed the federal FOIA law with a parallel state law – with the same objective: making it difficult for public agencies to hide information from the public . . . information that the public had a right to. California adopted the ‘California Public Records Act’ in 1968; Colorado enacted the ‘Colorado Open Records Act’ in 1969; New Mexico’s ‘Inspection Of Public Records Act’ was passed in 1978; Etc. (Chances are you know more than we do about when, and how, your particular state adopted its version of bringing sunshine into governmental decision-making.)

Ideally, the public trusts its public agencies

Ideally, the federal FOIA and the 50 State-versions of FOIA are not needed. Ideally, the a set of stakeholders doesn’t feel the need to resort to FOIA. Ideally, their interaction with the agency in question is such that they know the agency isn’t hiding anything from them. . . that the agency works hard to communicate with them. . . that the agency is forthcoming with any and all relevant information – especially with information detrimental and/or embarrassing for the agency. . . that the agency wouldn’t think of hiding potentially relevant information.

So, when stakeholders feel the need to resort to the use of FOIA. . . the agency has already screwed up. It has already managed to convince people that stakeholders have to use the FOIA club to get what’s properly theirs. . . The agency has lost credibility.

Project managers, department heads, division directors. . . all the way up to agency administrators who are besieged with FOIA requests, need to an Outreach Program in place that has – as one of its objectives – to “Nurture and Protect the agency’s Credibility.”

The underlying message of such an Outreach Program would be the message:

    • “Hey, . . . we do NOT hide information! . . . In fact, we try HARD to make sure you-all have all the project-relevant information.


    • “We are sorry if, somehow, someone is getting the impression that we want to hide information . . . Please work with us on this!


    • “Work with our project staff and our outreach personnel; . . . they’re working hard to make sure that you are well informed . . .


    • “If and when you feel that some specific data or information are missing from the various Outreach vehicles we are using, . . . for goodness’ sake, let us know what it is, and we’ll get it to you.


  • “You should not have to go the FOIA route to get the relevant project information!

This approach does not guarantee that you can completely eliminate FOIA requests, but it should drastically reduce them.

These are symptoms of how well – or how poorly – people trust you and your agency. That’s a terribly important thing. Having potentially affected interests THINK that you are attempting to hide information from them is unacceptable; responsible management of a public agency does not ignore this situation.

Here’s where our concern comes in:

– It appears that your predecessor did – sort of – use this informal approach (i.e. trying to establish a less formal — less adversarial – relationship, making stakeholders realize that your agency is not the enemy. That, in fact, you’re on their side, . . . that you want them – you need them — to be fully informed . . . not because it’s the law but because it’s the right thing to do).

– If the change in how you’re handling FOIA requests gives the appearance that if it weren’t for the law, you would hide project related information. . . If that’s what a skeptical stakeholders is likely to conclude from your change in process. . . Then you’re giving exactly the wrong message!

– Of course those stakeholders are wrong! Of course you’re NOT hiding – or attempting to hide – information! . . . So don’t do things that give the opposite impression!

People who are cynical and skeptical about your agency’s agenda and/or competence will cling to ANY clue that supports their suspicions! That’s why you’ve got to police everything you do, say, and write to make sure they will slowly – but surely – persuaded that their cynicism is misplaced, that they CAN trust you, that you would NEVER intentionally hide information that they have a right to.

One of the things you’ve got to examine is:

  1. Why in the world are people with whom you are totally open and honest resorting to your state’s version of FOIA to obtain project-related information that – in fact – the project staff and the outreach staff are working HARD to get to them?
  2. How do we react when someone DOES make FOIA requests from us? Does our behavior help CHANGE their mistrust? . . . Or, does it CONFIRM their cynicism?

What do people do – what would YOU do – when a public agency appears to hide public information. . . when an agency appears to use the fine print of the FOIA regulations to frustrate the purpose of the FOIA law? . . . Well, you probably would do what most people do: You’d file – or threaten to file – a lawsuit.

We urge you to get busy convincing these stakeholders that this is all a big misunderstanding, that you’re NOT the enemy, that do NOT try to hide ANYTHING!

This is perfectly solvable communications problem. Making these folks realize that they were wrong won’t turn them into supporters, but you’ll have the relationship that gives a decent chance of earning their Informed Consent.

Remember, Consent-Building depends on achieving 15 Citizen Participation Objectives. Credibility is just ONE of those 15.

How does one identify and build consent from people who CANNOT be moved up from the “Over-my-Dead-Body” position?

Question #3 from March 2011 Brownbag

A fellow planner from Alaska asked the following: “How does one identify people who CANNOT be moved up from the ‘Over-My-Dead-Body’ position?”

Because this is a question we often hear from public officials, we think it deserves an answer on the Blog.

If our friend in Alaska had gone through our SDIC course, he probably would not have asked that question, and here’s why. . .

He would understand that:

  1. If you are addressing a serious problem – or opportunity – one that just has to be addressed (i.e. it meets the 1st and 2nd Laws of Public Administration), and
  2. If you are the appropriate entity to address the problem (i.e. Your mission, which was established by the public through its political process, requires you to address the problem), and
  3. If the Problem-Solving/Decision-Making process (that you are using to analyze the problem and generate the full range of alternative solutions) is reasonable, sensible, responsible, and
  4. If you not only listen to your various Potentially Affected Interests (PAIs), but also make your public realize that you are listening to them . . . especially to those PAIs whom you are impacting negatively, then, . . . it IS possible to move the “Over-my-Dead-Body” opponents up to where they become at least “Grudging Consenter.”

Whether you move them up or not is up to you; it’s not up to them. More specifically, it depends on how good a Consent-Builder you are!

Implementation Geniuses are like Professional Athletes

  • Asking us, your Consent-Building coaches: “What about those PAIs who will never go along?”
  • Is a lot like asking a golf coach: “What about those golf-balls that just WON’T go into the cup?” . . .
  • That coach would probably tell you what we’re telling you: “Don’t blame the ball, or the wind, or the course . . . If you do YOUR part right, the ball WILL go in.
  • And so similarly, we will tell you: “Don’t blame the PAI who doesn’t change their tune from being an ‘Over-My-Dead-Body’ Opponent, or “politics,” or our system of government. Instead, figure out how you failed to get their Informed Consent, and then keep working to get it!”

This analogy is no exaggeration. After all, if you see phenomenally good golfers, it is UNBELIEVABLE the control they have over that ball! (Friends who had tickets to the US Open at Pebble Beach – which is just a couple of miles from our house – gave us tickets for the day they could not attend. And, that’s what we did: we followed a couple of these phenomenally good players around the course. The skill these people have is stunning!)

Well, that’s what it’s like to watch Implementation Geniuses communicate with their publics . . . which, of course, always means . . . how they communicate with their OPPONENTS — their fiercest opponents. Like professional golfers who flock to the hardest courses, Implementation Geniuses put most of their effort into the most challenging PAIs.

Because it IS stunning to see what Implementation Geniuses do, that’s why we have been studying them and their methods for the last 40+ years. There’s NO COMPARISON between their approach to public outreach and what most agencies do . . . !!!