[blindLaw] Forwarding The STATEMENT OF CARING CONCERNS OF JAMES AND SUSAN GASHEL

[Max Smith]

I couldn’t forward the original email but I have copied and pasted all of it here.
What do you people think?
Trigger warning. The statement mentions and refers to the #MarchingTogether movement.


I.    THE NATIONAL FEDERATION OF THE BLIND’S 2021 SPECIAL COMMITTEE REPORT ON SEXUAL MISCONDUCT 

We write these concerns because we care about the NFB.  As a member of the Board, Mr. Gashel voted in favor of the Code of Conduct, in favor of the SAFE fund, and voted to release the Report for our members to review, but did not and does not endorse the Report’s content or conclusions.  We write, because, in its zeal to curb misconduct, the members need to know the NFB is creating a kangaroo court. 

We stand with survivors.  No one should have to suffer unwanted harassment or violence, whether in the NFB or anywhere.  Standing with survivors does not mean we should turn over our organization to outside investigators.  This disempowers the affiliates, the backbone of our organization.  

The Code of Conduct defines sexual harassment, but does not define sexual misconduct.  https://nfb.org/about-us/history-and-governance/code-conduct.    Regardless, the Special Committee used the term sexual misconduct (which wasn’t defined) and not sexual harassment.  This is not, we repeat, not, an issue of terminology.  According to RAINN, sexual harassment is widely understood to be a narrow term as compared to the broader term of sexual misconduct.  The substitution of terms is a misleading sleight of hand.  Did the Report conclude any transgressor committed sexual harassment?  We don’t know.  Therefore, we don’t know if any transgressor violated the Code of Conduct.  By being casual about the terms, the Special Committee leads us to believe that the Code of Conduct was violated.  We don’t know and neither do the NFB members.

The Report lacks investigative standards, the text is conclusory, not supported by any stated evidence, and written to evoke strong feelings.  The Report says that Dr. Schroeder was guilty of sexual misconduct over four decades, yet no allegations go back nearly that far.  Sadly, we believe the Special Committee’s methods resulted in a predetermined outcome – a kangaroo court.  

According to the Report, the investigator was objective.  We don’t agree.  Sexual misconduct, not being defined, is in the eye of the beholder – in this case, the External Investigator and the President of the NFB.  Yet, we don’t know what the investigator considers to be sexual misconduct, neither does the membership.    

We acknowledge mistakes have been made; they have been made by the Board of Directors as a whole.  The Report blames the immediate past president and current president, while this may be expedient; we find it to be untrue and unfair to Dr. Maurer and President Riccobono.  

52 separate people are alleged to be either transgressors or individuals who failed to “respond adequately to sexual misconduct allegations.”  Lumping these two categories together creates a perception of a larger problem than we have in NFB.  We don’t even know what failed to “respond adequately” means.  Is it leadership response, is it witness response?  We don’t know.  Did those who allegedly failed to respond adequately violate the Code of Conduct? We don’t know.  Did the transgressors violate the Code of Conduct? We don’t know.  Is consensual sexual behavior sexual misconduct?  We don’t know.  All we do know is that the transgressors violated whatever standard is applied by the External Investigator.  But we don’t know the standard, and neither does the membership.  

Given the size of the NFB, and the fact that allegations from the distant past were considered, we need to step back and reconsider the Report’s conclusions.   

If the NFB adopts the Report’s recommendations for processing sexual misconduct complaints, an External Investigator decides if it is “more likely than not” that a violation took place and recommends disciplinary actions.  The President accepts, rejects or modifies the report and notifies the parties.  An appeal has to be filed within 30 days; the President picks a three-member Appeal Panel from the Board.  But the Appeal Panel cannot overturn the President’s decision unless it is “manifestly unjust,” this means that it has to be plain and obvious that the decision was wrong.  There are no other appeals permitted.  There is an exception for “extenuating circumstances” but this is not explained.  We simply don’t know.  

One thing we do know is this: Under the NFB Constitution, https://nfb.org/about-us/history-and-governance/constitution, the President does not have unilateral authority to suspend, expel, or discipline a member. This authority is expressly reserved to the Board of Directors and the Convention.

Therefore, the actions now being taken by the president violate Article III, Section E of the NFB’s Constitution.  Under Article III, there are only two ways for a member to be suspended, expelled, or disciplined:  by a two thirds majority vote of the Board of Directors or by a simple majority of the states present and voting at a national convention.  The national convention has the sole authority to reverse the Board of Directors.  

Having not amended the Constitution, President Riccobono is throwing people out.  Because there is no appeal to the Board of Directors, and no opportunity to go to convention for redress, the investigation and appeals process being used is unconstitutional, since the constitution requires a two-thirds Board vote, reversible by the national convention.  The NFB membership deserves better.  The membership deserves to have the final say, if anyone wants to take a discipline issue that far.  

Our concerns are informed by the references set forth at the end of this statement. 



II.    CURRENT STATUS AND PRIORITIES OF THE NATIONAL FEDERATION OF THE BLIND

We fear that the NFB is being consumed by internal disputes while losing its focus on the compelling struggle of blind people for equality, opportunity, and security in society. Mr. Gashel has proposed the following initiatives; all were rejected by President Riccobono:

Public benefits advocacy.  From 2014 through 2018, Mr. Gashel urged more emphasis on advocacy by NFB on behalf of our members eligible for and/or receiving public benefits, including SSI and SSDI.  President Riccobono agreed that these efforts were needed but said NFB lacks staff and resources.  It’s all a matter of priority.  
In January 2018 after Mr. Gashel retired, he offered to contribute time to develop an advocacy effort with respect to Social Security and other public benefits, but President Riccobono did nothing. 
Mr. Gashel, given his unique and extensive experience as a lobbyist, proposed to Mr. Riccobono a plan for the NFB to have a more consistent effort in state and local legislation and advocacy, including volunteering to lead the effort, but President Riccobono did absolutely nothing, while agreeing that action was necessary in this area.  His announcement to establish a committee on state and local legislation and advocacy after Mr. Gashel’s resignation exemplifies the problem of Mr. Riccobono’s reactive, not decisive, leadership. 

We are losing our focus.  Only the membership can bring it back.  We urge all members to ensure that NFB remains the unified voice of the nation’s blind, and that, with love, hope, and determination we will turn our dreams into reality.  

REFERENCES:  
https://hbr.org/2020/05/why-sexual-harassment-programs-backfire 
https://www.rainn.org/articles/sexual-harassment.  
https://www.newamerica.org/better-life-lab/reports/nowwhat-sexual-harassment-solutions-toolkit/top-down-industry-level-or-organizational-change.  
https://www.unh.edu/research/prevention-innovations-research-center/evi.dence-based-initiatives.
https://www.apa.org/monitor/2018/02/sexual-harassment.
https://www.washingtonpost.com/news/act-four/wp/2018/01/17/the-metoo-movement-is-at-a-dangerous-tipping-point/

James Gashel joined the National Federation of the Blind in 1965 and became the first president of the NFB Student Division. In 1974 he joined the NFB staff as chief of the Washington office, where he became one of the best-known advocates for the blind in the United States. His well-known efforts in Washington have led to significant changes in virtually every law directly affecting blind Americans: the Social Security Act, the Rehabilitation Act, the Randolph-Sheppard Act, the Americans with Disabilities Act, the Copyright Act, the Individuals with Disabilities Education Act, and the Help America Vote Act. While championing these causes, Jim has won the love and respect of the thousands of blind men and women across America who have directly benefited from his informed and effective personal advocacy.
During Jim's service at the NFB, he received the Commissioner's Award for Outstanding Leadership in Rehabilitation Services to the Disabled, the highest honor conferred by the Commissioner of the Rehabilitation Services Administration. He received the Secretary of Labor's Outstanding American Award and the NFB’s Jacobus tenBroek Award, the NFB’s highest honor to recognize members and leaders in our movement.

Susan Rockwood Gashel is an attorney based in Honolulu, Hawaii.  Her employment history covers work with non-profits, government agencies, and the private practice of law over five decades.  She has worked with migrant farmworkers and governing boards, as a staff attorney for Hawaii’s open meetings and public records agency; as a deputy attorney general assigned to the Departments of Health and Human Services, and has served as an arbitrator for 17 state licensing agencies in actions against the Federal government, as well as representing blind vendors from 11 states.  In 2008 she met James Gashel; they married in 2012.  She has been admitted as a member to the Supreme Court of Hawaii, United States District Court for the District of Hawaii, United States Court of Appeals for the Ninth and Seventh Circuits, United States District Court for the District of Colorado, United States Court of Federal Claims, and United States District Court for the Western District of Michigan.  


Best and Aloha,
James Gashel

M: (808) 234-9259
E: jgashel0923 at gmail.com