[nfbmi-talk] why was this censored by state list?

Wed Mar 9 15:46:17 UTC 2011

With the new makeup of the Commission Board, this situation will cease.
----- Original Message ----- 
From: "joe harcz Comcast" <joeharcz at comcast.net>
To: <nfbmi-talk at nfbnet.org>
Sent: Wednesday, March 09, 2011 8:38 AM
Subject: [nfbmi-talk] why was this censored by state list?

Why Was This Censored?

March 9, 2011

Colleagues and Those Interested in Democracy and Public Accountability,

A few days ago I sent the public domain Michigan Civil Service Commission 
decision and victory for Dave Robinson, in which he prevailed against his 
illegal firing at the hand of Michigan Commission for the Blind Director 
Patrick Cannon, to the State of Michigan run list serve “MCB 20-20”.  It was 
censored by list moderator Cheryl Hiebeck. This was not the first time that 
this moderator and this state agency has censored such information in gross 
violation of the First Amendment of the United States Constitution. This is 
“content regulation” and “prior restraint” by a state actor and the grossest 
of violations of this treasured right of all citizens. I know of which I 
speak as I am a former professional journalist, with a B.A. in 
Communications and I did take during my course of studies “Media Law”. I 
received an A in that class by the way and do have a four year degree which 
is something that the Director of the Michigan Commission for the Blind has 
not accomplished, but I digress.

The reason this, and related information, and other similar information 
related to lawsuits is censored from this list serve is simple. Cannon has 
run MCB through intimidation and threat of retaliation against anyone whom 
he thinks threatens his personal position or even his tender ego by simply 
invoking facts, or even demonstrating proficiency, or even against those who 
actually advocate for customers of MCB or the increasingly embattled 
employees of MCB. And what Mr. Robinson’s case shows is that those who fight 
back and those who actually invoke the rule of law over this tyranny can 
prevail if tenacious. Moreover, it is becoming increasingly clear, again 
through the public record that Cannon with his reckless activities has 
exposed this organization to hundreds of thousands of dollars in 
liabilities. Incredibly who ultimately will pay for this? Why, it will be 
the taxpayer of the state and, indeed the United States, and ultimately the 
ever suffering people who are blind in Michigan who are denied timely 
services because the money has been so squandered in such a reckless manner.

At the risk of hyperbole here I cannot help but be reminded of the same 
bunker mentality, and pathological behavior of Muumar Qadaffi. For years 
that tyrant controlled public information, denied fundamental rights, 
retaliated against even perceived enemies of his person, which he deemed to 
be the state. We’ve seen this for more than a decade on a smaller and less 
violent scale from Patrick Cannon.

But, it is high time that the censorship ends, that the doors of public 
information are opened widely and accessibly to all Michiganders. It is 
time, also that, for once people who are blind are included as full 
citizens, and endowed with the same First Amendment and other rights that 
other citizens take for granted. It should be noted that aside from 
expression rights, the First Amendment also guarantees the right of 
association. It is implicit in the decision that Cannon and his henchmen 
also violated Mr. Robinson’s civil rights in this regard too and, thus 
threatens the Constitutional rights of all people who are blind regardless 
as to their association, or lack thereof. It doesn’t matter if one is 
involved with NFB, or MCBVI, or, for that matter a Boy Scout troop.  So, 
long as one is perceived a threat, in any manner, real or perceived to the 
arbitrary authority of Patrick Cannon then that person will be attacked in 
such a manner as Robinson was. History, documents this fact and the cases of 
the Eagles, Boone, McMahan,, Brooks, Tomcak, Fellows, and countless other 
vendors, employees and consumers over the years shout as a loud testament to 
the facts.

Please, see the Civil Service decision, received through a Freedom of 
Information Act request with no muss and fuss by the way from the good 
people at the Michigan Civil Service Commission.

 Attached after my signature line.

In Solidarity with Those who Love Liberty,

Joe Harcz

Attachment:

Table with 1 column and 3 rowsSTATE OF MICHIGAN

CIVIL SERVICE COMMISSION

HEARINGS OFFICE

Table end   Table with 3 columns and 10 rowsDAVID ROBINSON

CSHO 2011-006

v.

Mailing Date:

February 23, 2011

DEPARTMENT OF ENERGY, LABOR AND

ECONOMIC GROWTH

Ref. No.:

2010-02283

GRIEVANCE DECISION

Hearing Officer: William P. Hutchens

 Representatives:

 Grievant:

Law Offices of Mark E. Kamar, by Mark E. Kamar and

Gerald Joseph Cichocki

 Department:

Marilyn Smith, Labor Relations Representative

Table end  Table with 2 columns and 5 rowsCASE SUMMARY

KEY WORDS:

Discipline, Dismissal; and Political Activity

 The manner in which the service ratings were implemented violated Civil 
Service Regulation

2.06, Conducting Employee Ratings; further, it is the hearing officer’s 
determination that the

Commission for the Blind discharged the grievant in violation of Civil 
Service Rule 1-8.1(a),

Prohibited Discrimination, due to partisan considerations due to his 
membership in, and

advocacy on behalf of, the National Federation of the Blind. This is based 
upon

circumstantial evidence contained in the disciplinary timeline. The 
dismissal was not for just

cause. The grievant is to be reinstated to his former position with full 
back pay and benefits,

minus any outside earnings.

This CASE SUMMARY is not an official part of the decision.

Table end A grievance hearing was held on September 7, 2010, at the Capitol 
Commons Center,

400 South Pine Street, Lansing, Michigan. The parties were given full 
opportunity to present

testimonial and documentary evidence, examine and cross-examine witnesses, 
and present oral

argument. Closing briefs were submitted by October 22, 2010, at which point 
the record was

closed.

THE ISSUE

Was the grievant dismissed for just cause?

 THE FACTS

The grievant, David Robinson, was employed by the Michigan Commission for 
the Blind as a

Promotional Agent. In that capacity, it was his function to visit and 
service visually handicapped

food service vendors within state of Michigan office buildings, helping them 
to build their

businesses.

 The grievant had been employed in the above capacity with the Commission 
for the Blind since

1998. At the time of his discharge, the grievant reported to James Hull, the 
assistant business

enterprise program (BEP) manager. Hull began his supervision of the grievant 
on June 14, 2010.

 In his testimony, Hull described the duties of the promotional agents as 
being the liaison between

the facility operators and BEP administrative staff. They are responsible 
for procuring

equipment for the stand operators and to ensure that the operators have the 
training and skills

necessary to successfully operated food service establishments within the 
BEP program. This

requires the promotional agents to make site visits to each facility every 
six weeks, or if that is

not physically possible, they need to contact the operators and document 
that in the BEP

database.

 Hull stated that in addition to the above requirements, the promotional 
agents must give each

operator they supervise an annual evaluation.

 Hull stated that in the first month that he supervised the grievant, he 
became aware of a time and

attendance issue. On June 30, 2010, the grievant recorded eight hours of 
time worked, when it

was brought to the attention of the BEP that he had gone to a meeting with 
Department of

Energy, Labor and Economic Growth (DELEG) staff acting as a representative 
of an

organization other than the state of Michigan. In doing so, the grievant did 
not request any type

of leave on his time sheet for the day in question.

 As a result of this, Hull investigated further and learned that the 
grievant had attended the

meeting and that those conducting the meeting were not aware that the 
grievant was a state

employee. He received similar information from Pat Cannon, the director of 
the Commission for

the Blind, who told Hull that he had received a telephone call to that 
effect. Subsequently, a

disciplinary conference was held with the grievant and he received a one-day 
suspension for

falsification of his time sheet (Department Exhibit #3).

 Hull stated that at the time he became the grievant’s supervisor, he was 
made aware that the

grievant had been counseled about similar issues in the past by his previous 
supervisor,

Constance Zanger.

 Zanger testified that she supervised the grievant from March 2007 through 
June 2009. At the

time, she was the manager of the BEP. She identified three counseling 
memoranda issued to the

grievant during the period of her supervision, dated in March, July, and 
October 2008. She was

the author of the last two memoranda, she testified (Department Exhibits #5, 
5(2) and 5(3)).

These memoranda show a pattern on the part of the grievant of a failure to 
enter his site visits

into the BEP database. She further testified that he was not entering his 
annual operator

evaluations properly into that database. These memoranda and the discussions 
that accompanied

them were an effort to correct the grievant’s behavior.

 Zanger further testified that the memos show that the grievant was not 
developing a monthly

report spreadsheet and inventory package and discussing these issues with 
his operators before

he conducted an inventory. Further, he was not completing the inventories 
and was not

finalizing the inventory documentation on a timely basis. She stated that he 
failed to meet the

deadlines for the performance of his work. Failure to maintain proper 
inventory records, she

stated, could put an operator in difficult financial circumstances were they 
to decide to leave

their facility.

 Zanger testified that after the October counseling memo, the grievant 
interfered in a sensitive

situation at the Hall of Justice in which Director Cannon had already been 
involved. There had

been a vacant concession stand in that building with no blind operator due 
to a lack of interest.

There was therefore a sighted individual running the stand. Once a blind 
person did bid on the

stand and was awarded the contract, there was a very negative reaction to 
the imminent change

from employees at the Hall of Justice who wished to retain their current 
operator.

Director Cannon and others met with the human resources director, Lisa 
Kutas, and it was

explained that the blind operator had priority and would be coming in. An 
agreement was

reached by which the sighted operator would provide training to the incoming 
operator. The

grievant then met with Kutas himself and determined that there would be no 
need for the sighted

operator to train the blind operator; he essentially undid the efforts of 
Director Cannon.

Ultimately the blind individual who had bid on the stand decided that she 
was no longer

interested and submitted a bid on another facility, which was awarded to her

(Department Exhibit #12).

 Another example Zanger provided of the grievant’s alleged lack of 
cooperation concerned the

Ottawa Building snack bar (Department Exhibit #13). Zanger stated that she 
had received a call

from an Ottawa Building customer regarding the operator’s proposal to close 
the snack bar,

which he claimed to be generating an insufficient profit. Zanger asked the 
grievant to look into the situation to see what could be done to make the 
operation more profitable for the owner so

that this convenience could be preserved for the employees in that building. 
She asked him, in

September 2008, not to make any further move regarding the snack bar until 
they had a chance to

discuss it based upon the requested information. She then learned in October 
that the snack bar

equipment was being transferred out of the Ottawa facility, meaning that the 
facility had been

closed. This was in direct contravention of her email set forth in 
Department Exhibit #13.  Zanger stated that a part of the grievant’s problem 
in completing his tasks seemed to be that he

was performing duties that were not part of his job. By way of example, she 
stated that for some

operators, it was difficult for them to get fresh milk deliveries to their 
facilities. The grievant

would assist them by going out and purchasing fresh milk and delivering it 
to them himself.

That was not part of his job, she stated. It was the responsibility of the 
operators to obtain the

product that they sold in their facilities.

 Zanger testified that during the time that she supervised the grievant, he 
never complained to her

that he felt he was being singled out for differential treatment due to his 
membership in the

National Federation for the Blind, the organization that he was representing 
on the date

referenced above for which he received the one-day suspension.

 On cross-examination, it was brought out that other promotional agents 
under the supervision of

Zanger had been tardy in the documentation of their site visits and 
evaluations as well, but the

testimony indicated that the grievant was far and away the worst offender. 
She stated that of his

24 facilities, 19 were more than 180 days past due; another agent with 21 
facilities had

7 similarly past due and an agent with 22 facilities had 6 past due and 
another with 22 or 23

facilities was the second worst offender with 11 past due.

 There is no documentation of deficient performance between the last 
counseling memorandum

(October 15, 2008) and the issuance of the interim rating which ultimately 
led to the discharge of

the grievant in December 2009. That rating was issued to him on September 
17, 2009

(Department Exhibit #6). The follow-up rating, in which his performance was 
determined to be

unsatisfactory, was issued on December 18, 2009, at which point he was 
discharged. The only

incident that had taken place in the interim was the meeting that the 
grievant attended as a

representative of the National Federation for the Blind (NFB) for which he 
was issued a one-day

suspension for falsification of his time card. The Ottawa Building snack bar 
and Hall of Justice

incidents, both addressed by Zanger, were incidents that occurred within the 
rating period, but

the grievant did not appear to be counseled for them, at least according to 
the documents in this

record.

 The grievant testified that while he was scheduled to work 40 hours per 
week, his typical

workweek was 60 to 70 hours. He stated that part of his problem in keeping 
up with his paperwork entries into the BEP database was in transferring the 
information from his note taker

to the computer system. He described his note taker as a Blackberry® type 
device designed for

the blind. In transferring the information, the grievant stated, he uses a 
speech access program

and due to changes in the BEP software, he claimed that he had asked Zanger 
for additional

training that had not been provided. He stated that ultimately, Hull had 
offered to get him a

wireless card for his computer, which would enable him to broaden the areas 
from which he

could work. He later learned that some of the other promotional agents had 
been supplied with

wireless cards previously, but he knew nothing about them. He stated that he 
received the

wireless card within three months or thereabouts of being discharged (Tr., 
p. 187).  Assistant BEP Manager James Hull testified that a review of the 
site visit documentation for all

of his promotional agents shortly after he became the grievant’s supervisor 
showed that all of the

promotional agents were behind in their documentation. He therefore directed 
them on June 12,

2009, to document all site visits by a certain date and from that point 
forward to remain current

on all site visit documentation. He also asked them to provide him with a 
projected itinerary for

the upcoming week and a summary of their activities for the preceding week. 
He believed that

would help them to regulate their time and to keep current in their 
assignments. He specifically

asked the grievant for this information in an email dated August 12, 2009, 
referencing a

conversation they had at the disciplinary conference regarding the one-day 
suspension on

August 4, 2009.

 Hull testified that due to the fact that the grievant failed to make his 
site visits current, and the

fact that he had not asked for an extension in which to make them current, 
he gave the grievant

the service rating in question. The rating directed him to make all site 
visits current within one

month of receiving the rating. This was something that Hull believed that 
the grievant could do,

as was the directive to make site visits and to submit his proposed 
itineraries.

 Hull testified that the grievant did submit itineraries, but the follow-up 
conference revealed that

the grievant failed to follow all of his directives. This is reflected in 
the follow-up rating, dated

December 18, 2009 (Department Exhibit #8). Another issue that came up during 
the rating

period was regarding a proposed free popcorn giveaway as part of the State 
Employees

Combined Campaign, a charity fund raising event. The coordinator of the 
proposed popcorn

giveaway for the SECC had contacted the grievant, he testified, to try to 
set up a popcorn

giveaway through the BEP operators at all state facilities. Hull became 
aware due to complaints

by operators who had been approached by State employees who apparently had 
been told that

they were entitled to free popcorn. Hull investigated with Lisa Moye, the 
event “coordinator”

who said that she had worked directly with the grievant, who was to contact 
the operators to

advise them of the event and was to negotiate the price for the popcorn with 
the SECC for the

reimbursement to the operators for their participation. This, Hull stated, 
was not something that

the grievant was supposed to be doing. His involvement, or lack of it, 
generated numerous complaints from operators and from state employees. The 
operators complained that they had

not been forewarned of the event, so they had not made any adjustments to 
their purchasing or to

their scheduling of labor. They further complained that the price that had 
been agreed to did not

cover the cost of the popcorn. When he spoke to the grievant about this, he 
denied responsibility

(Tr., p. 32).  Regarding the above issue, the grievant testified that he had 
been contacted by Lisa Moye, but

that he had told her that he could supply her with a list of operators and 
that participation would

be up to them. He told her he could not quote a price because the operators 
buy their corn from

different suppliers and in different forms. He stated that he would never 
have quoted her a price.

He said that arrangements would have had to have been made by the SECC 
coordinator in each

building with the individual operator in each building, since each is an 
independently owned

business.

 Another issue that had been brought to the attention of the grievant during 
the rating period was

the fact that his state of Michigan email address appeared on the website of 
the

National Federation of the Blind. He was directed to have that removed. His 
failure to have it

removed for several weeks forms part of the basis for his dismissal. It is 
clear from this record

that it took some time to have the email address removed from the 
organization’s website. The

hearing officer views this as a non-issue.

 The grievant has contended that his dismissal was in violation of Civil 
Service Rule 1-8.1(a),

Prohibited Discrimination, in that he was dismissed based upon partisan 
considerations due to

his membership in and status as a board member in the National Federation of 
the Blind of

Michigan. In addition, he claimed that there existed no cause for the 
dismissal. He alleged that

the dismissal violated Article 11, § 5 of the Michigan Constitution since 
the dismissal was

motivated by partisan considerations. He further contended that his 
dismissal violated state and

federal constitutional rights to free speech, association, due process and 
equal protection under

the law because the termination under the pretext of just cause was actually 
due to his

involvement as an advocate for the blind vendors and promotional agents as a 
board member and

representative of the National Federation of the Blind of Michigan.

 OPINION

The issue before the hearing officer is whether the grievant was discharged 
for just cause.

 In reviewing the grievant’s work history leading up to his discharge, it is 
appropriate to consider

the counseling memoranda issued to him in October 2008 but not those issued 
earlier than that.Review of Civil Service Regulation 2.06, Conducting 
Employee Ratings, §§ 4(E)(2), states that: An interim rating shall address 
specific performance or

behavior problems, identify specific expectations for

improvement, and establish a timeframe for improvement

during a follow-up rating period.

The grievant’s interim rating (Department Exhibit #6) appears to set forth 
the above items, but

according to the testimony in the record, pretty much all of the promotional 
agents were behind

in their paperwork. The grievant was by far the worst offender, but to 
expect him by the stroke

of a pen to catch up all of his untimely work for the last 12 months in a 
30-day period, then

maintain all of his work in an ongoing timely fashion, when it is clear that 
no one else does this,

is an unrealistic and unreachable expectation.

 Regulation 2.06, §§ 4(E)(3), states that:

An unsatisfactory interim rating is typically preceded by

counseling, reprimands, or other forms of corrective action

regarding the employee’s performance or behavior.

In this instance, the closest counseling memo in time to the issuance of the 
first of the ratings at

issue in this hearing was dated October 10, 2008, and was issued by a 
supervisor other than the

one who issued this interim rating. This supervisor (Hull) did not take the 
time to document the

performance deficiencies of the grievant prior to issuing the rating on 
September 17, 2009.

Apparently, it was assumed the counseling memos issued in the preceding 
eighteen months by

other supervisors, combined with the one-day suspension given to the 
grievant in the summer

of 2009 for a totally separate issue, would suffice. In the opinion of this 
hearing officer, they do

not.

 Regulation 2.06, §§ 4(E)(14), states:

If an employee’s performance is unsatisfactory during the

follow-up rating period, counseling memos, reprimands, or

other forms of corrective action are typically taken, followed

by an unsatisfactory service rating.

There were no counseling memoranda, reprimands or other forms of corrective 
action taken

during the follow-up rating period. There were the two email chains entered 
into the record

regarding the Ottawa Building snack bar (Department Exhibit #13) and the 
Hall of Justice issue

(Department Exhibit #12), neither of which amount to anything approaching a 
counseling memo

or any type of corrective action.

The testimony of witness Hull indicates in essence that in order to help his 
promotional agents

catch up on their paperwork, he assigned more paperwork to them (weekly 
itineraries and

weekly summaries of their prior week’s activities).

 The hearing officer does not believe that the grievant was a model 
employee. It is apparent from

this record that he was inordinately slow in entering his required paperwork 
into the BEP

database. As was testified to by witness Zanger, especially as it concerns 
inventories, this could

have extreme financial consequences for the operators whom he is supposed to 
serve, in the

event that they were to close down their businesses. Further, the hearing 
officer does not believe

the grievant regarding the issue of the popcorn giveaway. If the grievant 
did not quote

Lisa Moye a price, then why did the operators call Hull complaining about 
the price that was

quoted, and the fact that it was not sufficient to cover their costs? The 
grievant must take more

responsibility for his own actions and must focus on the required portions 
of his duties and less

upon the voluntary aspects of them, since they seem to bog him down.

 The grievant has contended that his termination was motivated by partisan 
considerations due to

his status as a member of and as a board member of, the National Federation 
of the Blind (NFB)

of Michigan. He produced the testimony of Fred Wurtzel, the retired manager 
of the BEP and a

ten-year president (recently retired) of the NFB. Wurtzel offered his 
opinion that

Director Cannon of the Commission of the Blind has launched an out-and-out 
attack against the

NFB and its members. He described alleged incidents in which blind operators 
have been

removed from their positions without cause, and referenced the terminations 
of three

Commission employees he believed to have been motivated by their membership 
in and

advocacy for, the NFB.

 Wurtzel’s testimony does not constitute proof; it was his opinion. When one 
views the timeline

in this case, however, it lends credibility to the statements offered by 
Wurtzel. The grievant, for

example, had three counseling memoranda on his record, but nothing more 
significant than that

until he appeared at a meeting with DELEG officials acting as an advocate 
for the NFB.

Word of this got back to his supervisor, who appropriately sanctioned him, 
from the evidence in

this record, for falsifying his time card. A mere 11 days after the grievant 
appeared at that

meeting, however, the previous tolerance of untimely submission of BEP 
database materials on

the part of all promotional agents was brought to an end by Hull. While this 
impacted all of the

promotional agents, the one who of course was most dramatically impacted was 
the grievant. He

was the one who was the farthest behind in his paperwork. Hull then imposed 
further

paperwork, making it more difficult for the grievant to catch up.

 Once the disciplinary conference was held in August regarding the timecard 
falsification and the

one-day suspension was issued, the grievant was again reminded to fill out 
his paperwork in a

timely fashion and to submit his weekly itinerary and summary upon his 
return. Within three weeks, he was place on the interim rating that led to 
his discharge. Nowhere in any of this

timeline of Hull’s supervision of the grievant is there evidence of 
counseling memoranda,

reprimands, or other efforts at corrective action. There is evidence of 
unreasonable expectations

designed to make certain that the grievant would fail.  Were these actions 
taken because the grievant was a board member of/advocate for the

National Federation of the Blind? The circumstantial evidence from the 
timeline seems to point

to that conclusion. The hearing officer does not have knowledge of the other 
instances of alleged

NFB discrimination alleged by Wurtzel, but as immediate past president of 
the Michigan NFB,

Wurtzel was in a good position to know the nature of the relationship 
between that organization

and the Commission for the Blind, headed by Director Cannon.

 It is my determination first, that there was no just cause demonstrated for 
the dismissal of the

grievant due to the total lack of documentation offered in support of the 
service ratings; second,

that the probable reason for the lack of documentation is that the grievant 
was not doing that

poor of a job, compared to the other promotional agents, though his 
performance clearly was the

worst of the lot; and third, that the Commission for the Blind took his 
laggardly performance,

heretofore tolerated, as an excuse to discriminate against, and discharge, 
the grievant due to his

membership in and advocacy on behalf of, the National Federation of the 
Blind.

 For the above reasons, the grievance is granted. The grievant is to be 
restored to his previous

position with full back pay and benefits, minus any outside earnings in the 
interim.

 DECISION

The grievance is granted.

Table with 3 columns and 2 rows    William P. Hutchens, Hearing Officer

Table end Table with 1 column and 1 rowNotice: This decision may be appealed 
if received by the Civil Service Commission’s Employment

Relations Board within 28 calendar days of the mailing date on the face of 
this decision

(March 23, 2011) as authorized by Civil Service Commission Rule 8-7, Appeal 
to Civil Service

Commission. Instructions and forms for filing an appeal, Civil Service 
Regulation 8.05, Employment

Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and 
Filing Documents,

can be found at www.mi.gov/erb. Appeals and inquiries should be addressed to 
the Employment

Relations Board, Michigan Civil Service Commission, Capitol Commons Center, 
400 South Pine

Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 
335-5588; by fax, at

(517) 335-2884; or by e-mail to MCSC-ERB at michigan.gov.

Table end
_______________________________________________
nfbmi-talk mailing list
nfbmi-talk at nfbnet.org
http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
To unsubscribe, change your list options or get your account info for 
nfbmi-talk:
http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/marcussimmons%40comcast.net 