[nfbmi-talk] michael king's breif in boone case

[joe harcz Comcast]

Oh yes. He had a bad case but this was bully and bad lawyering too. Blind consumers are now paying for not only this bad lawyering, but also for the illegal firing in the first place of Christine Boone and the buck stops at the top for Cannon in documented fashion was the author of these woes and should be fired directly.

Joe Harcz

STATE OF MICHIGAN

CIVIL SERVICE COMMISSION 

BUREAU OF LABOR RELATIONS

CHRISTINE BOONE,

Appellant, Reference                                                                            No.: 2010-01752

 vs 

DEPARTMENT OF ENERGY, 

LABOR & ECONOMIC GROWTH,

Appellee. 

 

APPELLEE'S CLOSING BRIEF 

I. INTRODUCTION 

This is a case about whether Christine Boone, director of the Michigan Commission for the Blind’s (MCB) Training Center, violated Civil Service Rules and Regulations, as well as work rules, when she allowed her staff to bring air rifles onto the Training Center grounds and conduct a marksmanship class.  Boone does not dispute that she authorized the purchase of the air rifles. Nor does she dispute that she authorized the conducting of the class by her staff.  Her argument is the air rifles were not firearms under the Civil Service Rules.  She also argues that if the air rifles were firearms under the Civil Service Rules, she had permission from her boss, Pat Cannon the Director of MCB. Finally, she argues that even if she did not have permission, she did not need it because she could conduct classes at the Training Center without Director Cannon’s permission.  There are fatal flaws with all of Boone’s arguments, however. 

First, Boone admitted she never consulted the Civil Service Rules concerning firearms.  Moreover, the determination of whether the air rifles were firearms (and in violation of the Civil Service Rules) lies within management’s prerogative.  Second, Boone admits she only spoke to Director Cannon once in early spring about the Training Center students going target shooting.  

By that point, her and her staff had decided to purchase the type of air rifles they eventually purchased. Boone never mentioned to Director Cannon that fact.  Nor did she include the progress of the marksmanship class in her quarterly reports or in her weekly conversations with Director Cannon. Over seven months later, Director Cannon found out when Boone announced to the participants of a National Federation of the Blind conference that the class was being held.  Finally, this is not an issue about whether Boone can authorize a particular class or not.  The issue is whether Boone authorized firearms to be brought on the Training Center property in violation of Civil Service Rules. Clearly, she did.  Thus, MCB and the Department of Energy, Labor, and Economic Growth (DELEG) were justified in terminating Boone pursuant to Civil Service Rules 2-6.1 and 2-20. 

II. Statement of Facts 

A. The creation of a marksmanship class at the MCB Training Center 

In 2009, Karen Cornell worked as an Activity Therapy Aide MCB.  (T II, 257).1 MCB has employed Cornell since 1974.  (T II, 256). 

Over the years, students approached Cornell about shooting.  (T II, 258). Cornell took students to an archery range in 2008. (T II, 258).  She also took students paintball shooting, but three of the students did not care for it.  (T II, 258-259). Cornell passed on the students' interest in target shooting to Boone in January of 2009. (T II, 259). In January of 2009, Boone and Cornell created a performance objective for Cornell involving target shooting for the students.  (T II 259-260; T III, 425; Ex. 41).  That performance objective required Cornell to "[e]xplore the opportunities for target shooting and/or paintball in the area. *** Also explore the prose (sic) and 

1 T I = Boone v DELEG, Hearing Transcript Vol. I, January 12, 2011. 

T II = Boone v DELEG, Hearing Transcript Vol. II, January 19, 2011. 

T III = Boone v DELEG, Hearing Transcript Vol. III, January 20, 2011. 

T IV = Boone v DELEG, Hearing Transcript Vol. IV, January 21, 2011. 

cons of taking students into the country to try shooting in the open."  (Ex. 41). Director Cannon did not review Cornell's Performance Objective.  (T I, 58). 

Cornell and Bruce Schultz discussed the possibility of taking students to a range, but neither were aware of any ranges to accommodate the students.  (T II, 260). Cornell contacted On-Target, a shooting range, and asked them to inquire on a website whether anyone knew about shooting ranges that could accommodate blind individuals.  (T II, 261). Cornell did nothing else to explore the possibility of taking the students to a shooting range.  (T II, 298-300). 

In February of 2009, Cornell and others discussed the possibility of doing target shooting at the Training Center. (T II, 261). Dan Grover, the maintenance person, first spoke to Cornell about doing the target shooting on the Training Center grounds.  (T II, 261). Cornell never contacted shooting ranges to determine if they could accommodate the students.  (T II, 299).  

In February of 2009, Cornell spoke to Boone about holding the target shooting on the Training Center grounds. (T II, 262). Boone instructed Cornell to contact the local authorities.  (T II, 261; T III, 419).  Cornell contacted the local State Police Post, which told her to contact the Kalamazoo Police Department.  (T II, 264). Cornell contacted the Kalamazoo Police Department, which originally told her that the air rifles were legal to have in the city of Kalamazoo.  (T II, 264-265).  Cornell reported her findings to Boone.  (T III, 419-420, 423). Boone instructed Cornell to continue with the marksmanship class, which started in September of 2009. (T III, 426). 

Boone never contacted anyone about whether the air rifles violated the Civil Service Rules. (T IV, 522-526). Cornell never spoke to Boone or Schultz about whether the Civil Service Rules prohibited or affected their ability to conduct the class or bring the air rifles onto the Training Center grounds. (T II, ).  At the time of the class, Boone never looked at the Civil Service Rules nor researched the issue.  (T IV, 522). Neither did Schultz.  (T III, 347).  Nor did Cornell. (T II, 290-291). 

At some point in the spring of 2009, Boone contacted Director Cannon about taking the students target shooting.  (T I, 48-49; T III, 417).  Director Cannon testified that the discussion was about taking the students off-site to do target shooting.  (T I, 48-49). Boone testified that Director Cannon was aware that the Training Center staff was developing a marksmanship class and he gave his verbal consent.  (T III, 417-418). 

In June of 2009, Cornell purchased two Ruger .177 caliber air rifles from Meijer.  (T II, 269-270; Ex. 9). DELEG Purchasing questioned the approval of that purchase in August of 2009. (T II, 351; Ex. 38). Schultz responded to that inquiry and the issue was dropped. (T III, 331). Director Cannon was not made aware of the purchase of the air rifles or the inquiry by DELEG purchasing at that time.  (T I,52-53). He did not become aware until he began investigating the marksmanship class after the NFB Conference in November of 2009.  (T I, 52). Director Cannon testified that DELEG purchasing did not authorize the purchase of the air guns, but they became aware of the air rifles when they were reviewing purchasing statements and they inquired about the purchases. (T I, 52). 

The marksmanship class began in September of 2009.  (T II, 272). Boone and Cornell did not want to hold the class while minors were on the Training Center grounds.  (T II, 266).  Boone did not mention the class in her report to the MCB Board in August/September 2009.  (T III, 482-483; Ex. 42).  Cornell conducted the class. (T II, 272-273). She testified that the class always had two instructors. (T II, 296). She later testified that one of the instructors was a spotter and that at times she was the only one on the range.  (T II, 296-297). 

Cornell testified that she purchased plywood and foam to make the targets.  (T II, 278). She also purchased sounders, so that students could better hear when their lead pellets, travelling at 1,000 feet per second, struck the targets.  (T II, 274; Ex. 23). Cornell held the class in a ravine facing the walking track and the Training Center’s main building.  (T II, 276). She did not measure the distance between the walking track or the building and the target area.  (T II, 298). The walking track where blind individuals receive mobility training is 181 feet from the firing range. (T II, 276; Ex. 40). The Training Center main building is 355 feet from the firing range.  (Ex. 40,). The firing range was in a ravine 22 feet high.  (Ex. 40). 

Cornell was aware that the air rifles were dangerous to a distance of 575 yards.  (T II, 295). Cornell did not research how to set-up a firing range.  (T II, 293-295). Nor did she research if there were state, federal, or Civil Service Rules concerning the set-up and operation of a firing range. (T II, 293-295). Cornell did not construct safety baffles.  (T II, 298). 

The marksmanship class began in early September and ran through November of 2009.  (T II, 272; T III, 338; Ex. 37).  The class had eleven students before it ended.  (T II, 275). 

B.        Director Cannon discovers that a marksmanship class is being held at the Training Center 

Director Cannon attended the NFB Conference on November 7, 2009.  (T II, 33). He attended with several members of the MCB staff. (T II, 154-155). Boone gave a presentation and discussed the success of the marksmanship class.  (T I, 33; T III, 431-432).  This was the first time Director Cannon was aware that a marksmanship class was being held at the Training Center. (T I, 33). 

C.        Director Cannon's investigation 

On November 8, 2009, Director Cannon spoke with Boone about the class.  (T I, 35). Boone was confrontational and argumentative and claimed the gun was "toys and totally safe."  

(T I, 36). Director Cannon instructed Boone to bring the toy gun to their scheduled meeting the next day. (T I, 36).  When Boone arrived for the meeting the next day, she did not bring the toy gun because she was concerned about the Lansing ordinances concerning firearms.  (T I, 36-37). This was the first notice that Director Cannon had that the toy gun was not actually a toy.  (T I, 38-40). 

Director Cannon discussed with Boone why she did not bring the gun.  (T I, 37). Director Cannon was concerned that the gun was not a toy, but might be a firearm. (T I, 38). Boone explained that she was an attorney and the gun was not a firearm. (T I, 37). Director Cannon told Boone that he needed to have DMB Security to inspect the gun to determine if it was a firearm under the Civil Service Rules.  (T I, 38). Boone stated that the Civil Service Rule was outrageous and ridiculous. (T I, 39). 

On November 10, 2009, Director Cannon instructed Sherry Heibeck to bring the gun to his office. (T I, 39). Heibeck did this. (T I, 39).  It was at this point that Director Cannon discovered that there were two guns. (T I, 39).  Director Cannon had Jason Nairn come to examine the guns.  (T I, 39). Nairn is the head of DMB Security.  (T I, 39; T III, 359).  At this time, Director Cannon discovered that the guns were actually air rifles and could easily mistaken for more powerful rifles.  (T I, 40). 

Nairn examined the guns and determined that they were considered firearms under the Civil Service Rules.  (T III, 363).  Nairn communicated his conclusion to Director Cannon.  (T III, 363).  Nairn also sent Director Cannon an e-mail about how air rifles operate.  (T III, 365; Ex. 39). 

D. Boone leaves on medical leave 

Boone left on medical leave in November of 2009.  (T III, 438).  Before the New Year, she received notice for an investigatory conference scheduled for January 12, 2010.  (T III, 447).  

Boone's medical leave did not extend through the date her investigatory conference was scheduled. (T IV, 530). She returned to work and the investigatory conference was held on January 12, 2010. (T III, 447). 

E. Gamin's investigation 

Patty Gamin, DELEG Director of Human Resources, investigated whether the air rifles were firearms under the Civil Service Rules.  (T II, 170).  She researched a number of websites to learn more about how air rifles work.  (T II, 173-177; Ex. 23-25).  She consulted Nairn to get his take on whether the air rifles were forearms under the Civil Service Rules.  (T II, 172-173). Nairn told her the air rifles met the definition of firearms.  (T II, 172-173). 

Gamin consulted the Civil Service Rules and DELEG work place safety rules on firearms.  (T II, 170-171; Ex. 8, 10). Gamin determined that the air rifles were firearms because they expelled a dangerous projectile using air. (T II, 172). She relied on Nairn's assessment and her own research, including the operator's manual that came with the air rifles.  (T II, 172-173; Ex. 11). 

Gamin reviewed her information and held an investigatory conference with Boone and Director Cannon.  (T II, 179). At that conference, Boone admitted that she did not consult the Civil Service Rules before authorizing the class.  (T IV, 524-525).  Boone also maintained that the air rifles were not firearms under state law and that the class was conducted safely.  (T II, 188; T III, 423, 428).  Gamin explained that she was concerned about whether the air rifles were firearms under Civil Service Rules.  (T II, 190-191). 

After determining that the air rifles were firearms and that Boone failed to consult the Civil Service Rules and her supervisor about the class or the air rifles, Gamin determined that termination was in order.  (T II, 193). Gamin consulted with Director Cannon and Andy Levin, Deputy Director of DELEG, before finalizing her decision.  (T II, 192). 

F. Boone's discipline 

Gamin scheduled a disciplinary conference for January 28, 2010, to issue Boone's discipline. (T II, 194; Ex. 2).  Boone wanted her attorney at the conference and asked the conference be rescheduled. (T II, 194). Gamin agreed and the disciplinary conference was rescheduled to February 4, 2010, which Boone and her attorney attended.  (T II, 194-195). 

Gamin testified that disciplinary conferences are an opportunity for the employee to present new evidence and for the employer to issue and explain the discipline.  (T II, 193-194). Boone and her attorney wanted to reargue the old evidence.  (T II, 195). Boone had an opportunity, which she availed herself of, to present her case at the investigatory conference.  (T II, 184-191). She presented her arguments and documents to Gamin at the January 12, 2010 investigatory conference. (T II, 184-191). Boone and her attorney attempted to present the same evidence at the February 4, 2010 disciplinary conference.  (T II, 195). Their new evidence was just the old evidence repackaged.  (T II, 195). 

Gamin testified that Boone and her attorney were argumentative and agitated.  (T II, 195). Boone became upset and threw her dismissal document on the floor.  (T II, 195; Ex. 3).  Gamin issued the discipline and ended the conference.  (T II, 195-196). Gamin terminated Boone's employment with the State of Michigan for violating Civil Service Rule 2-20 and the DELEG workplace safety rules concerning firearms.  (T II, 193; Ex. 3). 

III. Argument 

A. The Commission had just cause to discipline and terminate Boone. 

MCB and DELEG has just cause to discipline Boone.  Boone allowed firearms to be brought onto state property without the proper authorization.  This was done in violation of Civil Service Rule 2-20.2(a). 

1. Law 

Classified employees are prohibited from bringing firearms onto state property, except as 

authorized.2  Those exceptions are :(1) if the employee's duties are law enforcement, 

correctional, investigatory, security, or military in nature and the agency work rules require or 

authorize the employee to carry a firearm;3 the appointing authority authorizes in writing the 

employee to carry/possess a firearm;4 or the firearm is in the employee's car, unloaded, and 

carried in the trunk or a case.5  Firearm is defined as "a weapon from which a dangerous 

projectile may be expelled by an explosive, gas, or air."6  A violation of this rule may result in 

discipline, including termination, as decided by the appointing authority.7 

An employer only can discipline an employee for just cause,8 which includes, but is not 

limited to, the following: 

                        (1) Failure to carry out the duties and obligations imposed by agency management, an agency work rule, or law, including the civil service rules and regulations. 

                        (2) Conduct unbecoming a state employee. 

                        (3) Unsatisfactory service or performance.9 

 

That discipline may include dismissal.10 

The appointing authority shall impose discipline in a manner consistent with the civil service rules and regulations and any applicable agency work rules.  When appropriate, an appointing authority shall use corrective measures and progressive discipline. However, if an infraction is sufficiently serious, an appointing authority has the discretion to impose any penalty, up to and including dismissal, provided the penalty is not arbitrary and capricious.11 

2 Civil Service Rule 220.2(a).
3 Civil Service Rule 2-20.2(a)(1)(A). 
4 Civil Service Rule 2-20.2(a)(1)(B). 
5 Civil Service Rule 2-20.2(a)(1)(C). 
6 Civil Service Rule 9. 
7 Civil Service Rule 2-20.4. 
8 Civil Service Rule 2-6.1. 
9 Civil Service Rule 2-6.1. 
10 Civil Service Rule 2-6.1. 
11 Civil Service Rule 2-6.1. 



Thus, the inquiry in this case is a three part inquiry: (a) did Boone violate a Civil Service Rule; 

(b) if so, was the violation serious enough to justify termination; and (c) if so, was the decision arbitrary and capricious. 

2.         Analysis 



 

a.         Boone violated the Civil Service Rule 20.2(a) when she allowed the air rifles to be purchased and brought onto state property. 

Boone allowed her staff, Cornell specifically, to engage in an activity that ultimately led them to purchase air rifles and bring them onto state property in violation of the Civil Service Rules and DELEG workplace safety rules. Boone authorized Cornell to hold a marksmanship class on the Training Center grounds.  That marksmanship class needed some kind of gun in order for the students to shoot with.  The guns that were purchased for that class were .177caliber Ruger air rifles. 

Nairn testified that those rifles fit the Civil Service definition for firearms.  As Gamin discovered, the air rifles use air to expel lead pellets at a velocity where the pellets are dangerous up to a distance of 575 yards and travelled at a velocity of 1,000 feet per second. Gamin also concluded that the air rifles were firearms under the Civil Service definition. 

Both Gamin and Nairn have experience interpreting the Civil Service Rules.  Nairn has experience interpreting the Civil Service Rules concerning firearms.  Their testimony concerning whether the air rifles should be viewed by the arbitrator as conclusive.  Gamin served as the appointing authority delegee for matters concerning discipline within DELEG, the department which housed MCB. The Civil Service Rules allow the employer to make decisions concerning managerial policy12 and discipline.13 Boone’s opinion on whether she violated or allowed to be 

12 Civil Serve Rule 6-4.1(a).13 Civil Serve Rule 6-4.1(h). 

violated the Civil Service Rule is irrelevant. It is not the employee’s prerogative to make that determination.  To allow otherwise would take away the employer’s ability to effectively and efficiently run its operations and lead to nonsensical results. 

Moreover, Boone’s argument that the air rifles did not meet the Civil Service definition is irrelevant. Boone made that argument during the investigation and disciplinary phases of her termination.  Gamin rejected that argument as supported by her research and Nairn’s conclusion.  The inquiry is whether Gamin’s decision that the air rifles are firearms was arbitrary and capricious. It was not. 

Gamin used the air rifles own operator’s manual to determine the air rifles were firearms.  That manual indicates that the air rifles are dangerous up to a distance of 575 yards.  Director Cannon and Nairn testified that the air rifles had the look and feel of a rifle.  The air rifles even could be mistaken as real rifles. (Ex. E-22). And Gamin’s own research indicated the air rifles used air to expel a projectile, which is one of the definitions of a firearm under the Civil Service Rules. Therefore, Gamin’s decision that the air rifles were firearms was not arbitrary and capricious. 

Furthermore, Boone failed to do her due diligence.  As an attorney, a state employee, and a senior-level manager, Boone had an obligation to ensure that her actions and the actions of her staff complied with Civil Service Rules and DELEG work rules.  She admitted that she did not look at the Civil Service Rules when she authorized the marksmanship class and the purchase of the air rifles.  Her reliance on state law and local ordinances is misplaced.  Those are sources that must be verified after assuring that her actions are in compliance with the Civil Service Rules and DELEG work rules. Nor was Boone disciplined for violating state law or the Kalamazoo local ordinance. 

Having allowed and authorized her staff to purchase a firearm to use in the marksmanship class, Boone violated Civil Service Rule 20-2 and the DELEG work rules concerning workplace safety. 



 

b.         DELEG’s decision to terminate Boone was justified and not arbitrary and capricious. 

As shown above, Boone violated a serious Civil Service Rule and DELEG workplace safety rule. For purposes of this argument, MCB and DELEG are not arguing that Boone and her staff conducted the class or used the firearms in an unsafe way.  Safety is not an issue because the violation of the firearm rule is strict liability.  The mere violation of the firearm rule exposes a person to the penalty for their violation. Here, Boone allowed and authorized her staff to hold a marksmanship class and to purchase firearms for that class.  Thus, she is subject to the penalty associated with that violation. In this case, Gamin – in consultation with Director Cannon and Deputy Director Levin – determined that termination was the appropriate action.  That decision was not arbitrary and capricious. 

First, Boone did not have permission from Director Cannon to hold the marksmanship class. Boone claims she spoke to Director Cannon in the Spring of 2009.  Both participants agree that they spoke. Boone contends that she told Director Cannon about the class during that conversation. Director Cannon testified that the conversation involved taking the students on an outing to go target shooting. Director Cannon approved Boone to explore the possibility.  Considering the evidence, Director Cannon’s testimony is consistent with the evidence and, thus, more persuasive. 

Director Cannon’s version is consistent with Cornell’s performance objective developed in January 2009. Cornell’s performance objective required her to explore the options for taking the students target shooting off-site.14 Director Cannon testified that he never saw or reviewed Cornell’s performance objective.  His testimony reflected the goals that Boone developed and approved for Cornell, information Director Cannon could have received only from Boone during their conversation about target shooting. 

Boone's own recollection of the events supports the idea that anything being considered, be it off-site target shooting or a class on the Training Center grounds, was in the exploratory phase. Boone stated: 

I let [Director Cannon] know that Karen said she did not want to have a one time thing but she wanted to look into doing a class.  So she was going to do some checking with places in the community, like shooting ranges and that and see what they had to say. And that we would also explore the possibility of having something on the center grounds since we did have 22 and a half acres, which when I came was virtually unused, and ever since the time of my coming we've been increasingly bringing that property in to use so that it could benefit our students. (T III, 417; emphasis added). 

Boone admits that she never spoke to Director Cannon about the issue again. 

Moreover, Boone admits that there was a misunderstanding.  Since she was the person with the information, she had the responsibility to ensure that her boss had the relevant information to make an informed decision.  Whether a misunderstanding or a withholding of information (intentional or otherwise), Boone was the one person in a position to clarify and correct. She never did. 

Moreover, Director Cannon was surprised when he learned about the marksmanship class during Boone’s NFB presentation. Director Cannon testified that he learned about the marksmanship class for the first time at Boone’s presentation.  Sue Luzenski and Susan Turney both testified that Director Cannon was surprised and asked them if they knew about the class.  

14 Boone’s attempt to skew the meaning of “area” in the performance objective is disingenuous at best and an example of Boone’s attempt to reinvent the past to show herself in the best light. 

(T II, 155-156, 161-162).  Both denied knowing about class until Boone talked about in her presentation. (T II, 155-156, 161-162). 

Furthermore, Boone’s own actions lend credence to Director Cannon’s version of events.  Boone met nearly weekly with Director Cannon over the telephone.  Not once during those conversations from the spring of 2009 through November 2009, did Boone inform Director Cannon about the marksmanship class, the purchase of the air rifles, or the progress on taking the students target shooting. She had every opportunity to bring her boss into the loop, but she chose not. 

Also, Boone submitted quarterly written reports to Director Cannon and verbal reports to the MCB Board. In the past, she had mentioned programs that were to be done in the future.  In her June 009 report – the same time as the marksmanship class was being developed and set to begin in September of 2009 – Boone discussed a youth summer program set to begin later in the month. She did not mention the marksmanship class.  During the entire year of 2009, Boone never mentioned the development of a marksmanship class in her reports.  Again, Boone failed to discuss a substantial development with her boss.   

Finally, Boone’s testimony is suspect.  In her testimony, Boone blamed her secretary for sending policy updates to be posted on the MCB website without authorization.  However, the evidence shows that Boone sent the e-mail herself and obscured the fact that the updates were in fact policy updates that needed the approval of the MCB Board.   

She also wavers about whether she consulted the Civil Service Rules before authorizing the class. In her testimony before this arbitrator, she claims that she consulted the rules and made a determination that the air rifles did not meet the firearm definition under Civil Service.  In her recorded investigatory conference, however, she denies that she consulted the Civil Service Rules. Boone chooses to shape her testimony not to the truth, but whatever is most convenient to her and her position. For that reason, this arbitrator should disregard her testimony where it is contradiction with more credible witnesses. 

For the above reasons, this arbitrator should find that MCB and DELEG did not act in an arbitrary or capricious manner when they terminated Boone’s employment for violating Civil Service Rule 2-20.1. Since MCB and DELEG did not act in an arbitrary or capricious manner, Boone’s termination should be upheld. 

B.        The Commission's decision to terminate Boone was not based on improper motives. 

Boone argues that MCB and DELEG terminated her for improper reasons.  Specifically, Boone argues that MCB and DELEG terminated her either because of her association with NFB or her comments to the United States Rehabilitation Services Administration auditors during MCB audit. Neither of those arguments are supported by the evidence. 

1.         NFB relationship 

The only “evidence” that Boone presented was the testimony of Larry Posont, the president of the Michigan chapter of NFB.  Posont testified that Director Cannon told him in September of 2009 that he hired Boone to smooth over the relationship between MCB and NFB and that Boone had failed. This testimony is flawed for a number of reasons. 

First, it is irrelevant to the inquiry.  Posont had no personal knowledge of the reason why Boone was terminated.  He admitted as such.  (T III, 392).  He also had no personal knowledge of why Boone was hired.  (T III, 388-389).  His testimony adds no value to the discussion. 

Second, Posont’s motivations are suspect.  He is the president of an advocacy organization.  (T III, 380).  He has issues with the decisions Director Cannon has made.  (T III, 384-385). He believes that Director Cannon and the MCB Board do not listen to him. ( T III, 385). In fact, he believes that MCB must listen to NFB because NFB are the experts.  (T III, 387). Posont implies that MCB is not a good agency because they don’t agree with what NFB thinks. It is clear that Posont is not testifying to the events surrounding Boone’s termination, but is testifying to air his grievances with Director Cannon and try to get back at Director Cannon for not doing everything NFB wants.  But Director Cannon serves MCB and all the blind people of Michigan, not just NFB members. 

Posont's own assertions hurt his credibility.  Posont believes that Director Cannon picks the Board members and the Governor and the Senate just go along with him.  ( T III, 389-390).  He believes that Governor Granholm did whatever Director Cannon told her to do. (T III, 390).  He also believes that the Senate did whatever Governor Granholm wanted them to do.  (T III, 389). He believes this in spite of the fact that the Senate refused to confirm a Governor Granholm appointment (and under Posont's theory, a presumably Director Cannon appointment) to the MCB Board. 

Moreover, Posont believes that the MCB Board is just Director Cannon’s lackeys.  (T III, 390). When confronted with evidence to the contrary – the MCB Board overturning a decision by the MCB staff – Posont tries to have it both ways.  He claims that Director Cannon did not publically oppose the MCB Board’s decision to reinstate certain operators.  (T III, 390-391). Yet, he also claims that the MCB staff did oppose that decision and the staff does what Director Cannon wants. (T III, 391) Clearly, the MCB Board, the Governor, and the Senate are not doing Director Cannon's bidding when it comes to policies concerning Michigan blind community. 

Furthermore, Posont also does not like the fact that Director Cannon and the MCB Board listen to the other advocacy organization active in the state.  (T III, 394).  Posont admits that the NFB and the American Council of the Blind (ACB) do not get along.  (T III, 394). He admits that he does not like that Director Cannon and the MCB Board pay ACB any attention.  (T III, 394). Posont's bias is clear. 

If one were to believe Posont, one would walk away believing Director Cannon is a tyrant who directs the welfare of blind individuals in the state of Michigan from on high.  One would believe that nothing of significance happens in this state that affects blind individuals without Director Cannon’s approval and even the Governor and the Senate are mere appendages to Director Cannon. One would believe that Director Cannon is arrogant and only pays lip service to others, especially the NFB – the acknowledged experts on blind rehabilitation.  Acknowledged by Posont, anyway. The problem with Posont's version is that it is all based on his opinion and not in fact. Posont's view is clouded by his position as a lobbyist and his disappointment that Director Cannon and the MCB Board does not take his counsel as law.   Boone had Posont testify only to discredit Director Cannon and paint him as a liar.  Posont had no first hand knowledge of the events surrounding Boone's employment or termination.  And his testimony concerning Director Cannon is opinion, irrelevant, and clouded by Posont's admitted bias. 

Boone’s evidence about Director Cannon’s improper motive concerning smoothing over MCB’s relationship with NFB is unconvincing.  It is supported by the testimony of a disappointed advocate with an ax to grind. Therefore, this arbitrator should dismiss Boone’s argument an unsupported, especially in light of the convincing evidence as to the true reason she was terminated – her blatant violation of Civil Service Rules and DELEG workplace safety rules. 

2. Boone’s statement to the auditors 

Boone also argues that she was terminated for making comments to the auditors that Director Cannon did not approve of. (T IV, 532). Her evidence of this is the fact that Director Cannon sent an e-mail to Gamin about the comments. (Ex. 20). An examination of the e-mail shows that it does not concern Boone, but rather the propriety of RSA putting those comments into its final report. (Ex. 20).  Director Cannon testified that he was concerned that RSA would put those comments in their final report. (T II, 142).  In fact, RSA removed those comments from its final report.  (T III, 319-320).  Director Cannon testified that his concern with Boone and her comments was that she would tell RSA of her concerns but not discuss them with him, her supervisor. (T II, 145-146). Director Cannon did not discipline or terminate Boone for making comments to RSA.  (T II, 146). Director Cannon’s testimony is reasonable and consistent with facts.  Boone’s testimony is suspect and based on speculation. 

3. Legitimate non-discriminatory reason 

Even if this arbitrator finds that Boone has pled a prima facie case for retaliation or termination based on an improper motive, MCB and DELEG had a legitimate, nondiscriminatory reason for terminating Boone.  Moreover, this reason was not pretextual.  Boone violated a serious Civil Service Rule and DELEG workplace safety rule by allowing her staff to purchase and bring firearms onto the Training Center grounds.  Furthermore, Boone tried to hide behind a half-hearted effort by her and her staff to ascertain if her actions were allowable.  Boone failed to do her due diligence.  As an attorney, she knows better.  And she exacerbated her failure by attempting to blame her staff for the whole event (and other of her mistakes) instead of taking responsibility. 

These reasons are enough for this finder of fact to find that even if Boone stated a prima facie  case for retaliation or improper motive, MCB and DELEG had a legitimate, non-discriminator reason for terminating Boone. 



 

RELIEF SOUGHT 

Boone broke a serious Civil Service Rule concerning firearm, plain and simple.  It does not matter that she did not personally purchase the firearms or conduct the class.  These events would not have happened without her approval and authorization.  It also does not matter that she had her staff check with the State Police or the Kalamazoo Police about the state and local laws. She was terminated for breaking those laws.  She was terminated for breaking Civil Service Rules and DELEG workplace safety rules concerning firearms.  She knew about those rules, she just failed to follow them.   

Moreover, she never consulted her supervisors about her activities.  Over the course of six months, she held weekly meetings with Director Cannon and did not mention the marksmanship class or the purchase of the firearms.  In fact, the only conversation she had with Director Cannon she received permission to explore the possibility of taking students off-site to target shoot, as they had done with archery and paint ball shooting.  Nor did she report her efforts in her quarterly reports to Director Cannon and the MCB Board.   

She tried to hide her efforts until she could announce it to an audience which had problems with Director Cannon.  This allowed her to embarrass him and set-up a retaliation claim if he ever took action.  Ultimately, her actions fail. 

For the above reasons, MCB and DELEG asks this arbitrator uphold Boone’s termination.  

Respectfully submitted, 

      BILL SCHUETTE 

      Attorney General 

s/Michael O. King. Jr. 

      Michael O. King, Jr. (P 71345) Attorney for Michigan Department of LEG Michigan Department of Attorney General Public Employment, Elections & Tort Division 

P.O. Box 30736 

Lansing, MI 48909 Dated: March 11, 2011