[nfbmi-talk] the monitor article

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[PHOTO CAPTION: Shown here is the front of the training center and its sign

which shows the American flag and the words Michigan Commission for the

Blind Training Center]

   Continuing Conflict and Strife at the Michigan Commission for the Blind

                               by Gary Wunder

      In the roll call of states in 1978, Allen Harris, reporting as the

president of the National Federation of the Blind of Michigan, proudly

announced the passage of legislation establishing the Michigan Commission

for the Blind (MCB). The convention was excited; people from Michigan were

elated. We had long known that the best services for blind people are most

likely to be provided by agencies run by a supervising board appointed by

the governor with the input of the blind, who can go directly to the

legislature and the governor to make their case for the programs they need.

      In Michigan the legislation that passed wasn't everything the

affiliate had hoped it would be. The commission was not a free-standing

agency but a bureau. Employees, including the agency's director, would

still be a part of Michigan's merit system. Unarguably positive, however,

there would be a five-member commission board that would supervise and

evaluate the director and make policy for the agency. In a time when many

agencies for the blind were being consolidated into larger governmental

bodies and losing their ability to present their budgets to the general

assemblies of their states and finding they could no longer speak directly

with the governor and legislature, Michigan's progress was important for

the blind of Michigan and a reason for the blind of America to cheer.

      One fear of the Michigan general assembly and governor was that

passing the new commission bill would turn the agency upside down. Promises

by the act's proponents for a smooth transition, jobs for workers in the

agency who still wanted them, and as little disruption to service as

possible meant that the commission came into being and functioned much like

its predecessor. The commission board perhaps for too long continued to

function as an advisory body. The agenda was still set by the agency;

things it wanted placed before the new commission board came to its

attention while those the agency chose to handle itself did not.

      Much has changed in the thirty-plus years since Michigan got a

commission. The Rehabilitation Act of 1973 was amended in 1998. Consumer

choice and empowerment and consumer-directed programs have become a part of

our everyday language and expectation. The federal Rehabilitation Act

mandates a rehabilitation council in every state. For Michigan this council

is the Michigan Commission for the Blind. The role of the rehabilitation

council as defined in the Rehabilitation Act goes beyond communicating the

programs of the agency to its patrons and acting in an advisory capacity as

former state councils and advisory committees once did. State councils are

to be partners in determining what programs their agencies conduct,

evaluating the success of those programs, and actively soliciting,

reporting on, and trying to implement consumer feedback.

      The extent to which these councils function as true partners varies.

Some appointed members are so flattered at sitting at the head table and

rubbing elbows with higher-ups in the agency that they are content to

assent and pass on everything the agency proposes. They take no assignments

and gratefully agree to pass on any work between meetings to agency staff.

Some who are more active soon have to decide how much of their time outside

agency meetings they are willing to devote to finding out what consumers

want and learning enough about the law to determine which changes are

possible and which are not. Those who come with an agenda and the intention

of bringing about real change soon learn that their zeal must be tempered

by an appreciation for the people who have made their careers the helping

of blind people and by how long it takes to develop a consensus. The terms

of effective advocates are often characterized more by constructive change

than by drama. The challenge is to ensure that one doesn't win a public

battle while in so doing making so many enemies among those who will

implement the change that the war is lost.

      The personality of the agency director, the strength of the agency's

traditions, the vitality of the consumer organizations, and the way the

state rehabilitation council is composed and views its role all contribute

to how involved consumers are in shaping agency policy. A director who sees

his governing board as an asset and a board that believes its members are

partners in carrying out the agency's mission find their relationship

rewarding and productive. When the director regards his council or

governing board as removed from the real work with the agency and considers

board meetings a burdensome reality he or she must tolerate in working for

a social service agency, the relationship is poor. Meetings are not events

in which constructive dialogue and sound public policy are demonstrated.

When the council or commission is constantly at odds with the agency

administration, the agenda is a battleground where the administration

fights for time to be used in reporting and the governing body or council

fights for policy evaluation and change. Meetings are endured rather than

enjoyed, and the positive consumer-driven process intended by the drafters

of the Rehabilitation Act and its amendments is thwarted.

      In June and July of 2010 the Braille Monitor published articles about

the Michigan Commission for the Blind and serious conflicts between

consumers of the state, the commissioners of the Michigan Commission for

the Blind, and the director of the commission, Patrick Cannon. Because that

coverage was so detailed, this article will summarize only those items

relevant to understanding the activities which have occurred since.

 [PHOTO CAPTION: Christine Boone]

      In February of 2010 Cannon fired Christine Boone, the director of the

residential rehabilitation training center, alleging she had started a

marksmanship class without his knowledge or consent and that she had

violated state law by allowing firearms to be purchased and brought onto

state property. Cannon initially said he had learned of the class at the

2009 convention of the National Federation of the Blind of Michigan. Later

he testified that he remembered having discussions about the class with

Boone, that those discussions involved looking into instruction offsite,

and that never had he given his approval for the class. Allowing blind

people to do things normally considered impossible for the blind is a well-

established practice of rehabilitation centers in trying to reshape the way

blind students think and feel about being blind. Rock climbing, skiing, and

other challenge activities are well-accepted strategies that are key to

changing a student's perception of what it means to be blind and are found

in some of the best training centers in the country. Sky diving was even

conducted at the Michigan training center in recognition of the importance

of such challenge activities.

      With the help of the National Federation of the Blind, Christine

Boone appealed her dismissal. A four-day hearing was held before an

arbitrator in January of 2011. In arguments supporting Boone's dismissal

for violation of civil service regulations, the state alleged that she

might have discussed the possibility of training with her supervisor, but

never had she gotten his approval to proceed with it. To the extent that he

understood such training was being discussed, it was Cannon's understanding

that the class would be taught offsite at a local firing range. The state

also alleged that the guns used in the marksmanship class were firearms as

determined by state civil service regulations and, as such, were not

allowed on state property.

      In presenting her side, Boone argued that she had told Cannon about

the students' desire to do target practice as part of the center's

adventure activities, that he was supportive and told her to research how

the class might be conducted, and that he emphasized the need for safety.

Boone assigned one of her assistant directors, Karen Cornell, who was very

involved in marksmanship as a recreational activity, to research how and

where the class could be conducted. While a target practice facility was

located in the area, it seemed safer and less disruptive to hold

marksmanship training on the center's property. Given that the center has

more than twenty acres and is making an effort to use that land fully,

Cornell suggested this solution as an alternative. She next went to the

state police and then to the Kalamazoo Public Safety Department in the

Kalamazoo Police Department to determine whether the spring-loaded guns she

was considering were firearms. The police concluded that they were not; the

guns were purchased with a state purchasing card and without a background

check. The purchase rang up as general merchandise. State purchasing paid

the bill, questioned the purchase several months later, and was answered by

Assistant Director Bruce Schulz, who explained the role of adventure

activities at the training center as the reason for the purchase.

      Classes were held, and the success of the training was indeed a topic

covered in Boone's report at the National Federation of the Blind of

Michigan convention. Boone testified that Cannon's preference for oral

rather than written communication explained the lack of written approval

and that, indeed, no written approval for the sky-diving program conducted

by the center had been granted, though clearly the program had been

authorized, supported, and even publicized by the agency. She argued that

the need for Cannon's approval was questionable given her job description

and the discretion given to her as a high-level manager. Boone admitted

that she had not initially been aware of a civil service regulation when

she authorized the commencement of the marksmanship class but quoted the

rule which clearly defines a firearm as "A weapon from which a dangerous

projectile may be expelled by explosive, gas, or air." She presented

evidence that the guns purchased by the Center (and approved by Department

of Energy, Labor, and Economic Growth purchasing officials) did not use any

of these three methods to expel the pellets. The guns use a spring

cylinder, and the owner's manual warns that the markings on these units

say, "Warning: Do not brandish or display this product in public--it may

confuse people and may be a crime. Police and others may think it is a

firearm. Do not change the coloration and markings to make it look like a

firearm." The civil service rule used as the basis for Boone's firing also

spells out numerous exceptions, including specific approval by an

appointing authority, which can be the CEO of an autonomous entity that is

headed by a board or commission. She further argued that Cannon had no

concern about the legality of the pellet guns on state property because she

was ordered to bring them to his office for his personal inspection when he

raised the issue of not knowing about the training. Finally she argued that

Cannon's understanding of where the training would take place was of no

consequence since the regulations do not distinguish between firearms on

state property or in the possession of employees while on state time.

      Prior to the Commission meeting on June 17, 2011, an arbitrator from

the Michigan Department of Energy, Labor, and Economic Growth, who is also

a member of the American Arbitration Association, ordered Boone's

reinstatement. In the thirty-six page decision, the arbitrator found that

there was agreement that the marksmanship class was well received by the

students and staff of the training center; that no one believed they were

violating either the spirit or the letter of the law or the regulations of

the state of Michigan; that personnel of the state of Michigan charged with

interpreting the regulation had difficulty in determining whether the BB

guns were firearms; and that the regulations were too ambiguous to justify

Boone's termination. In its summation the finding reads:

      The Appellant makes a cogent argument that Ms. Boone's termination

for her alleged violation of the work rule and regulation at issue violates

her due process rights because the policies, as they are applied to the

specific facts and circumstances in this case, were impermissibly vague.

The regulation and work rule relied upon for the termination of Ms. Boone's

employment are so complicated that it took both Jason Nairn and Patty Gamin

hours of research to determine whether the rule was violated. Mr. Cannon

wasn't sure and relied on their opinions. Automatically terminating the

employment of an employee for violation of a rule where the application of

such rule is not clear and readily understandable violates the concept of

just cause. Due process requires that noncompliance with a rule can only be

relied upon in administering discipline if the rule is clear and accessible

enough to be readily relied upon by the subject of the discipline.

      After careful review of all the facts and circumstances, it is clear

that Ms. Boone performed her work in good faith and with reasonable

diligence. It has not been shown that the Appellant purposely violated any

of the rules or regulations with which she is charged. There is not just

cause for discipline or discharge in this matter.

                                     DECISION

      For all the above stated reasons, the grievance is granted. Ms. Boone

shall be reinstated to her former employment and made whole as to lost

wages and benefits.

      There you have the concluding remarks of the arbitrator and the order

to reinstate Boone. Director Cannon announced this decision to the staff in

a memorandum entitled "Wishing Sherri Well," Sherri Heibeck being the

person appointed by director Cannon to run the training center following

Christine Boone's firing. In the same way Director Cannon announced Boone's

return to the board of the Michigan Commission for the Blind under the

agenda item entitled "Training Center Report," which he began by

introducing Sherri Heibeck and complimenting her on her many years of

service to the agency and her more recent work with the training center. He

told the commission board and those in the audience that Sherri had to

leave work with the blind because the agency had been ordered to reinstate

Christine Boone. The clear implication was that a loyal and dedicated

employee was being forced out by Boone, but at no time that day did anyone

mention the facts on which the arbitrator ruled, the injustice to Christine

Boone, or the anxiety of training center staff that resulted from the

firing, absence, and return after eighteen months of their former boss.

      Much to Heibeck's credit is her own handling of Boone's return as the

director of the training center. In remarks to the training center's staff

on learning she would be leaving the director's position, Heibeck assured

them that their good work would not go unnoticed, that they should not be

anxious about Christine Boone's return since most of them already knew and

had worked for her, and that quality programs would continue and expand at

the training center. The same cordiality was shown when she met with Boone

prior to her return.

      The Christine Boone case is not the only one in which the Michigan

Commission has been involved in the last year. Dave Robinson, also a member

of the National Federation of the Blind, was dismissed after ten years with

the agency. Although highly rated by the Michigan vendors he served as a

promotional agent (in other states this position is known as a vending

supervisor), his dismissal was based on being behind on paperwork, a

problem shared by many promotional agents in Michigan. Robinson notes that

he was the agent for more vendors than any other, being responsible for

serving thirty-one facilities. The promotional agent with the second-

highest workload has twenty-four.

      Robinson appealed his dismissal, and an arbitrator ruled in his

favor. The arbitrator found his termination was based on his membership in

the National Federation of the Blind. Robinson was on paid leave from

February to August of 2011. The state appealed the decision of the

administrative law judge and won, so Robinson says he now plans to take the

matter to court.

      Robinson says his firing had less to do with paperwork than with a

conflict with Director Cannon. Michigan law spells out that blind vendors

have preference on state property, including catering for special events.

When state workers began routinely to bring in food from the outside

without giving the onsite vendor an opportunity to compete for the

business, Robinson says he insisted the vendors had the right to complain

and defended them. He says that, when Director Cannon was contacted by the

heads of offices that had hired others to do the catering, he did not like

the conflict, and he suggested Robinson stop raising the catering issue.

      The Monitor has learned that one other issue involving blind vendor

complaints about outside catering cost Hazell Brooks her facility and

income. In her career Brooks had filed and won four grievances against the

agency prior to the catering dispute. We are told that, after complaining

about a catering event for which she was not allowed to bid to officials in

the building in which she worked, she was visited by Cannon and a staff

member of the vending program. Contrary to state and federal rules, Hazell

was removed immediately. She fought the removal and since has been awarded

a better facility--the claim is that the location she has now is the second

best in the state. The commission board has also ordered the agency to

negotiate with her to provide compensation for the lost income she

sustained. By our count this makes her five for five, a great day for a

hitter in baseball and a quarterback's dream in football.

      All told, it appears the state of Michigan has had to pay more than

three quarters of a million dollars in grievances and lawsuits from

customers of the business enterprise program, grievances by consumers and

employees, and lost wages and benefits over the last eighteen months. One

must ask why? A partial answer is the failure of agency director Cannon to

resolve internal conflicts within the MCB, leaving it to hearing officers,

administrative law judges, and arbitrators to settle matters that have

arisen from agency disputes. The experience of one former blind vendor

illustrates this problem.

      Terry Eagle worked as a vendor in the Michigan program for ten years.

 Then successful surgery gave him substantial vision. So significant was

the increase that he withdrew from the Business Enterprise Program and made

his living for fifteen years in other pursuits. Eventually his vision

deteriorated to such a degree that, when he again became legally blind, he

applied to reenter the program. Vending staff at the commission said he

could not compete for facilities until he took vendor training, with no

allowance for his previous training and experience. He holds a BA in

hospitality management, which includes certification in hotel and

restaurant management. Training in the Michigan program costs $2,900 a

week, lasts for eight weeks, and is then followed by nine weeks of on-the-

job (OJT) training. The rehabilitation counseling unit of the MCB said it

had no intention of paying for someone with Eagle's training and experience

to go back for such instruction. Eagle said he would retake the vending

classes, if required, but agrees that he does not need such training.

According to Eagle, so too did John McEntee, at the time the trainer for

the Business Enterprise Program, who said he could give Eagle any refresher

training he might need in two weeks. Management declined the offer and

recommendation. Clearly Eagle was caught in an internal agency dispute that

should have been resolved by Director Cannon or his designee, but the case

has been taken to federal court. The court has decided it does not have

jurisdiction, and Eagle promises to take it up in state court. The result

has already cost the state money to defend, and the likelihood is that, if

properly filed as Eagle promises, will result in another settlement against

the commission. It is one thing when an agency for the blind and a consumer

disagree and the assistance of a third party is required to resolve the

impasse; it is quite another when disagreements within the agency require

the consumer to take action outside the agency to receive service. Eagle

says that, to be fair, he was given one other option for entering the

program: paying for the training and OJT out of pocket. Conservatively this

would have cost at least $30,000.

      As Fred Wurtzel, the former president of the National Federation of

the Blind of Michigan and the former head of the commission's Business

Enterprise Program, says: "Most of the time when we are involved in an

appeal, we win, but statistics don't explain how it feels to be the victim

of these tactics. It is hard enough to face discrimination and

misunderstanding based on blindness, but to face the mistreatment by our

state agency when all that is wanted is a livable income and the respect of

the community is almost impossibly difficult and stressful. BEP operators

have been seriously harassed after the board or an ALJ have ordered their

return. The object lesson is that, even though you may eventually get your

job back, Pat Cannon can disrupt your life, take away your income, tarnish

your reputation, and reduce your influence with others. One need only

remember the removal of Mark Eagle, a twenty-two-year-old who was removed

from the commission board based on charges of ethical conflict because his

father was involved in helping other vendors with their grievances. This is

a totally inappropriate way to manage a public agency. Only people like us,

Federationists whom Pat cannot affect, are in a position to fight back

effectively for blind people."

      To the commission's credit, a real attempt to make the proceedings of

the board available to the public was evidenced by the work that went into

broadcasting the June 17 meeting on the Internet, making it available by

telephone, and accepting comments from people not in the room, whether they

wished to respond orally or using email. Commission staff went into great

detail about how to listen and participate in the meeting, and it was clear

that the effort represented a good deal of time to research and implement.

Participation from around the state was evident as offices of the

commission and consumers in their homes heard and spoke to the board.

      Within days of the meeting, members of the commission board and staff

were surprised to learn that, in addition to the audio, the session had

been videotaped. The failure to mention this when the recording and live

audio coverage had played such a prominent part in the meeting was not well

received. Just as participants had the right to know that what they said

was being recorded and broadcast, those in the room had the right to know

that they were being photographed. Many who were disconcerted by the

videotaping said it reminded them of the pictures taken at demonstrations

in the sixties and used as a reason to create FBI files on patriotic

citizens who chose to express their concern through peaceful protests. An

apology has been issued by Steve Arwood, who heads the larger agency which

houses the MCB.

      The tension between Director Cannon and the commission was obvious

both before and during the meeting. According to the commission's current

bylaws, the board agenda is determined by the chairman and the director,

and thirteen items recommended for consideration from the board were not

included. An agenda item involving a forty-five minute presentation from

members of the National Federation of the Blind of Michigan that had not

been covered in the previous meeting of the board was reduced to twelve

minutes without apology or explanation.

      Since the meeting the chairman of the commission, Jo Ann Pilarski,

has resigned. This means that the five-member commission board is now

functioning without a chairman, and two of its five positions are vacant.

By the time this issue goes to press, the next quarterly meeting of the

commission board will have occurred. From time to time there is talk of

combining the MCB with the state's other rehabilitation agency. Whether

this is an attempt to bring the blind to heel or represents the recognition

of the commission's many blunders and their cost to the state is debatable.

What is beyond debate is that Michigan Federationists believe that Pat

Cannon is a bully who has very little professional knowledge and lacks a

real understanding of the rehabilitation process, the rehabilitation law,

and the art of personnel management. He continues to usurp the authority

and role of the commission board and muffles and blunts all serious

consumer involvement. While most feel compelled by their most personal

values to refrain from judgment, to respect the humanity of their

adversary, and to separate the sinner and the sin, they truly believe that

only after Director Cannon is replaced can the process of building trust

and a positive process for serving blind people begin.