[nfbmi-talk] official board correspondence and continuing violations bep ada and all that

[joe harcz Comcast]

Official Board Correspondence Relative to MCB BEP and the Public Record

 

 

 

October 18, 2011

 

Paul Joseph Harcz, Jr.

1365 E. Mt. Morris Rd.

Mt. Morris, MI  48458

E-mail: joeharcz at comcast.net

810-516-5262

 

To: Commissioners Michigan Commission for the Blind

Also several parties including: Susan Luzenski, MCB and Patrick D. Cannon MCB

 

 

Dear Commissioners,

 

I’m writing today to put into the public record via so-called “official MCB board correspondence” the item related to the Business enterprise Program put forward by the National Federation of the Blind of Michigan at the March 19, 2010 MCB meeting as it was not submitted in the public record at the time but only denoted in the minutes. This is made in accordance with the most recently passed motion by you all that such official correspondence be read into the record.

 

Aside from this I add that all operators, and indeed the commission board itself have never received the complete and required information related to each and every ALJ determination over the past several years including all exhibits (please reference Assistant Attorney General Tom Warren’s advice and counsel in those regards. Thus in my mind each and every action taken by the MCB Board in these rummied and ignominious rulings by both the ALJ’s and MCB were invalid on their face.

 

Moreover, as the public record attests over and over again the Administrative Hearing officers and the State of Michigan and the MCB does not remit timely and accessible information to all parties and every party who happens to be blind in the most effective format of the individual pro forma let alone upon request. These are substantial and documented violations of civil rights pursuant to the Americans with Disabilities Act of 1990, (Title II, subpart e, communications) and Section 504 of the Rehabilitation Act of 1973 as amended. Now this has happened even after documented requests for same and constitutes substantial violations in fact and deed to “due process and equal protection under the law”. That is what Article V of the 14th Amendment is all about and thus to each and every individual harmed by these actions there has been substantive constitutionally guaranteed violations and subsequent and real harm through that.

 

The Selma (sic) case alone documents such severe violations in law and equity and does document subsequent and real harm which are cause for damages.

 

So are the cases cited in the original NFB MI document (attached). So are the ongoing violations by both MCB and the Administrative office of the “Courts” that continue to this day and against not only vendors but advocates including David Robinson and Terry Eagle.

 

Moreover, the failure to account for inventories and set asides exists to this very day. And you all have seen the violations of the ADA/504 in the perverted abuse of “undue hardship and administrative burdens” in my own public requests for accounting and accountability.

 

Regardless to you all I submit this for the public record and to document that MCB and other State of Michigan actors continue to act in unlawful, arbitrary, capricious, and non-accountable and non-transparent manners to this very day. Moreover none, and I repeat none of the issues put forward by the National Federation of the Blind of Michigan in this policy paper (again after my signature line) have been addressed let alone ameliorated to this very date, let alone acknowledged in the public record.

 

Thus they are resubmitted again for the public record which by the way shows a documented pattern and practice of abuse of law and due process that can only be construed given the passage of time and the multiplicity of events and actions to be conscious, malicious and intentional.

 

Sincerely,

 

Paul Joseph Harcz, Jr.

 

Cc: NFB MI

Cc: OCR at Ed.

Cc: MCB 20-20 List Serve

Cc: Steve Arwood, LARA

 

 

 

 

 

 

 

Attachment/enclosure:

http://nfbmi.blogspot.com/2010/03/open-letter-to-commission-for-bblind.html

 

 

Open Letter To Commission for the blind and Administrative Law Judge

Jo Ann Pilarski, Chair

Michigan Commission for the Blind

201 N. Washington Square

Lansing, Mi 48933

 

Peter Plummer, Director

State office of administrative hearings and rules

611 w. Ottawa

Lansing, MI 48933

 

Open Letter to Jo Ann Pilarski and Peter Plummer

 

Dear Ms. Pilarski and Mr. Plummer:

 

The Michigan Commission for the Blind Business Enterprise Program is adrift with no mooring or sense of direction. The major symptom of this directionlessness

is the astounding number of hearings and the chaotic nature of these proceedings. We believe that an immediate investigation into the propriety and legality

of the tactics and practices of the Commission for the Blind staff and the Administrative Law Judges is in order. A full report clarifying the situation

is needed to restore confidence that blind persons licensed under the Randolph-Sheppard Act and Michigan P.A. 260 of 1978 are being provided appropriate

due process rights under the applicable laws and rules. Below is a general list of issues. The total number of these egregious and unlawful cases is much

larger. We appeal to you in your capacities as primary decision makers and administrators to act quickly and decisively to assure that blind people’s rights

are being protected. We call on you to suspend all administrative procedures until this situation can be brought under control. Further, we call upon you

to review all cases adjudicated by Judge Robert Meade and throw ot these decisions and rehear each case under acceptable rules according to the Michigan

Administrative Procedures Act.

 

Serious Issues Facing the MCB Business Enterprise Program and Blind Persons

 

1. Lack of Fair and Full Evidentiary Hearing of Vendor

Grievances:

 

A. Documented cases of vendor license suspension and revocation, including Philip Brand, Sam Tocco, Richard Thelen, Hazell Brooks, and Richard Kent, without

cause and without required due process hearing, and a fair full evidentiary hearing, resulting in devastating consequences to blind vendors including bankruptcy,

giving up self-supporting independent living and being forced to move back in to parents home, and severe depression and anxiety requiring acute mental

health treatment and medication.

 

2. ALJ shopping and undue political influence by the agency director Patrick Cannon.

 

3. Recent practice of hearing cases being

assigned to one judge, Judge Robert Meade,

resulting in the following:

 

a. A subpoena once issued to compel

testimony of the MCB Director, Patrick

Cannon, was cancelled after Director

Cannon protested the issued subpoena.

The law provides no privilege to an

agency director against being compelled to appear and testify under subpoena

 

b. Subpoenas are issued to compel

Appearance and testimony of witnesses and then when state agency personnel, such as MCB’s

Gwen McNeal and MPS Sgt. Beardsley

do not appear to testify, motions for

continuance of hearing to seek

enforcement of the subpoenas are

routinely denied by ALJ Robert Meade.

This practice prevents a vendor

from presenting his/her case to get to the

truth, and denies a full opportunity to be

heard as is required by law and

fundamental due process fairness.

 

c. ALJ recommended decisions by judge

Robert Meade consistently fail to address the legal issues presented and argued by the vendor; avoiding issues of violation of law, rules and regulations,

thus denying a full evidentiary hearing and fundamental due process.

 

4. The BEP staff, James Hull and Constance Zanger fail to make requested relevant documents available; when said documents are known to be in the possession

of the MCB-BEP, as required by the Administrative Procedures Act, thus frustrating and denying vendors right to a full evidentiary hearing and fundamental

due process.

 

5. Until recently the BEP had a customary

practice of ordering and paying the cost of

hearing transcripts for arbitration appeal or

hearing written closing arguments. The

sudden unexplained halt to this practice by BEP Mamager Constance Zanger, prejudices

the vendors case and gives an unfair advantage to the agency with regard to

further proceedings and hearing closing

arguments, as the vendor cannot afford

the several hundred dollar transcript cost,

especially when a vendor is unemployed

because of license suspension or revocation. Further it deprives the Commission Board of all the facts and a true picture of the procedure of the hearing.

 

6. The unfair and unethical practice of the BEP

Manager, Constance Zanger, the same staff

Member who is the subject of the vendor

grievance, attaching a staff recommendation to

ALJ’s recommended decision with the sole

purpose of exercising unethical, undue influence upon the

MCB Board of Commissioners, when making a

final agency decision on a grievant's

case.

 

When one Commissioner, Mark Eagle, publicly

challenged this practice, Director Cannon

charged Commissioner Eagle with perceived

personal conflict-of-interest, because his father,

Terry Eagle, advocates for and represents

blind vendors as an unpaid non-attorney in

grievances at all levels of administrative

remedy. Through the State Board of Ethics,

Director Cannon was able to use his political

influence to have Commissioner Eagle

removed from the Board. And absolutely no

action was taken against BEP Manager

Constance Zanger for her actual unethical

Conduct in attaching her staff recommendation to ALJ decisions in her effort to influence the

Board in her favor. The practice continues, if

not in written form, for sure orally at MCB

Board meetings. If such conduct doesn’t define

the meaning of the word corruption, then no

conduct will ever define it .

 

7. The BEP routinely fails to notify vendors and

their representatives when their

grievances are scheduled to go before the MCB

Board for a final agency decision. The most recent such failure occurred in the Tomczak(?) license revocation case

 

8. The MCB Hearings Coordinator, Carla Haynes,

and BEP Manager, Constance Zanger,

routinely refuse to communicate directly with

an identified and appointed

non- attorney representative at any level in the

vendor grievance process.

 

9. BEP management Constance Zanger and James Hull routinely place untrained, uncertified sighted persons in program vending

facilities as temporary operators, rather than

employing unemployed blind persons as

temporary or permanent operators. Some of these blind persons

have training or have been employed by blind

vendors in the past. Sighted unlicensed temporary operators routinely do not pay their set-aside fees, carry required insurance or have sales tax licenses.

The Commission has no power to collect funds or enforce rules after the fact.

 

10. BEP Employment practices

 

a. BEP staff vacancies are restricted to be

filled by existing agency staff only, under

documented false reasons; rather than opening

vacancies to all applicants. This practice is used to shut out well qualified educated blind persons, some

of whom have been vending facility operators.

The blind are being shut-out of

competitive state employment in the very

agency charged with responsibility for

serving employment needs of blind citizens.

 

b. Vacant BEP management positions are

filled, while front-line promotional agent

positions go unfilled. Promotional agents

are vendors point-of-contact with the

agency to address and resolve business

and facility concerns and problems

promptly before they become a crisis

situation. Many problems have escalated unnecessarily because of inadequate

and unqualified staffing of promotional

agent positions.

 

c. BEP staff lack both business training and

experience, and a basic understanding

of blindness, and the extraordinary skills

and abilities of the blind.

 

d. Both BEP staff and blind vendors are

subjected to retaliation and intimidation by MCB-BEP management staff,

for speaking

out and advocating for blind persons, or

for their affiliation to an organization of

blind persons. Hazell Brooks, the President of the Merchants Division of the National federation of the Blind of Michigan and the Chairperson of the Elected

Operators Committee and Larry Ball, President of the Merchants Division each had their licenses illegally suspended and/or revoked. Both persons were strong

advocates for blind vendors and were outspoken in their advocacy. In addition, promotional agent, David Robinson who is blind, was terminated from his

position because of his outspoken support of operators' rights, insisting that the BEP adhere to all rules and laws protecting blind persons and for his

activity in the National Federation of the Blind.

 

11. BEP Financial Issues

 

a. Program financial information is not shared with the EOC or vendors as required by federal law and regulation.

 

b. Vending facility inventories are inadequate

at most locations, and are manipulated up

or down by BEP management, depending

on the vendor involved. No suitable

standard or uniformly applied

policy exists to regulate initial inventories.

 

c. The BEP lacks critical, serious long-term financial evaluation and planning for the future needs of facilities, equipment repairs, replacement, or innovative

new equipment purchases. Neither is there a strategy to manage inventories, and vendor retirement benefits in the future.

 

d. According to the Randolph-Sheppard Act, all major administrative decisions by the agency must be made with the active participation of the Elected Operators

Committee. Recently the retirement benefits of all operators were significantly and arbitrarily reduced by unilateral action of the BEP management. No

basis in law permitted this action, The unresolved issue of the undisguised diminution

in vendor retirement

now must be addressed openly

and satisfactorily resolved before it

becomes a costly legal matter.

In summary, this is an extremely serious situation. These examples demonstrate a total disregard for the law and the rights of blind vendors and blind people

in general. It can not be emphasized too strongly that the very foundation of the Randolph-Sheppard Act and the rules and procedures therein are bing blatantly

and recklessly disregarded to the potential detriment of the Michigan Commission for the Blind.

 

Sincerely,

 

Larry Posont, President

 

National Federation of the Blind of Michigan

Posted by Fred Wurtzel at

3:38 PM

img/icon18_email