[nfbmi-talk] Fw: Approved Special Meeting minutes 7/19/11

[joe harcz Comcast]

----- Original Message ----- 
From: Cannon, Patrick (LARA) 
To: MCB2020-L at LISTSERV.MICHIGAN.GOV 
Sent: Friday, September 23, 2011 1:52 PM
Subject: Approved Special Meeting minutes 7/19/11


APPROVED

 

MICHIGAN COMMISSION FOR THE BLIND

SPECIAL COMMISSION MEETING

 

201 N. Washington Square

Victor Center Building

2nd Floor Large Conference Room

Lansing, MI

July 19, 2011

8:00 a.m. - 9:00 a.m.

VIA Conference Call

 

 

MINUTES

 

 

COMMISSIONERS PRESENT VIA TELEPHONE

Mr. Larry Posont                             Ms. Lydia Schuck        

Mr. John Scott

 

COMMISSIONERS ABSENT

None (2 Commissioner vacancies currently exist)

 

MICHIGAN COMMISSION FOR THE BLIND STAFF PRESENT

Mr. Pat Cannon                               Ms. Sue Luzenski

Ms. Constance Zanger                            Mr. James Hull             

 

GUESTS/ATTENDEES VIA TELEPHONE

Mr. Joe Harcz                                  Mr. Joe Sontag

Mr. Fred Wurtzel                             Ms. Sheila Stelmach

Mr. Greg Keathley                          Mr. Scott Armstrong

Mr. Dave Robinson                        Mr. Tom Warren

Mr. Dennis Raterink                        Ms. Susan Przekop-Shaw

 

CALL TO ORDER, ROLL CALL AND DETERMINATION OF QUORUM

Commissioner Lydia Schuck called the special meeting to order at 8:02 a.m. Roll call was taken and a quorum was present.  

          

ALJ RECOMMENDATION:  SHEILA STELMACH

 

Commissioner Schuck asked Mr. Tom Warren, Assistant Attorney General to give an overview of the Attorney General's role and the Administrative Law Judge (ALJ) role in ALJ recommendations.  Discussion included which branch of government the ALJ falls under.

 

Mr. Warren gave an overview of the role of the Commissioners in regard to Administrative Law Judge recommendations.  He stated that Commissioners must first receive the complete record of all cases including transcripts, recommendations and exhibits.  He stated the next step is to take those facts and determine if the facts are supported by the competent material and substantial evidence in the record. Mr. Warren added that Commissioners can make additional findings of fact if, while going through the material, they find other items that are supported by the competent material and substantial evidence.  

 

Mr. Warren explained that the Commissioners role is to make the final Agency decision not to interject itself into the fact-finding process either as a witness or as an advocate for either side.  He went on to explain that the evidence needs to be weighed and a final agency decision made and there is no supporting rule giving either party the ability to speak.  Mr. Warren stated the Commissioner decision needs to be based on the existing record.  He added that if there are questions, then the recommendation needs to be sent back to the ALJ for the taking of additional evidence.  He also stated that a Commissioner giving a comment or input on the case could be considered a witness which could result in a Commissioner needing to recuse themselves from the decision.

 

Discussion included clarification of the 60 day decision window and when that begins.  Mr. Warren explained that the 60 day time period begins when the Commissioners have received the complete record of all cases including transcripts, recommendations and exhibits.  Mr. Warren also stressed that any Agency decisions must follow the law and be authorized by the law, limiting the Agency to the Constitution, its own statutes, statues that impact the process and the Administrative rules the Commission has.  Mr. Warren added that Commissioners don't have policy making authority over all aspects of the Agency handled by staff, but do have such authority over the vending facility program within the BEP.  

 

Mr. Warren suggested the following process when Commissioner are considering an ALJ recommendation:

·        Check that the record supports the Judges conclusions of law or findings of fact;

·        See if the Judges conclusions of law are authorized and are not in conflict with other statutes or rules and regulations;

·        The final agency decision could be to adopt the recommendation;

·        If Commissioners disagree or there needs to be modifications then there must be writing to create the bases of fact or conclusions of law to base the decision on;

·        Commissioners cannot rule against the ALJ without stating the facts within the relevant documentation to support the conclusion;

·        Commissioners can ask that staff draft the final Agency decision based on what Commissioners decide on ALJ recommendations for the BEP program;

·        Commissioners can alter the remedy recommended by the ALJ only if supported by a review of the record and if the facts support an alternative remedy or conclusion;

·        All remedies adopted by the Board must be supported by statutory authority;

·        There may be instances when a specific ALJ recommendation does not appear to have the full support of statutory authority.

 

 

Scott moved to defer action on the decision on the Stelmach case within 60 days of all exhibits being received; Posont seconded.

 

Discussion:  Commissioner Posont stated that it was not clear when the other route was bidded out and awarded to the other operator and what the timeline was; Commissioner Scott stated that the record needs to be reviewed as is and then requested to be fleshed out if needed in September.  

 

Motion passed unanimously.

 

 

PUBLIC COMMENT

 

Mr. Fred Wurtzel commended Mr. Warren for his presentation on the process, as it was stated very clear and fit perfectly with his understanding.  He added that if the process were followed it would help clear up comments and questions during Commission meetings in regards to these cases.  Mr. Wurtzel added that this gives latitude and necessary limits which will be helpful to Commissioners and easier for staff.  

 

Mr. Joe Harcz echoed what Mr. Wurtzel said and commented on the elephant in the room, which is people not getting information in a timely and accessible manner.  He added that these are all civil rights matters which override other laws.  Mr. Harcz also stated that for the past 10 years Commissioners have been asked to make determinations without receiving the full package.  Appropriate decisions cannot be made with materials being in a format which they cannot use.

 

Mr. Greg Keathley disagreed with some of Mr. Warren's comments and stated that the Commissioners aren't a judicial board but should be doing what is right.  He added that he is hoping that when the Board looks at this case they will see that Sheila was wronged and is just asking for a suitable remedy for her suffering.

 

 

POSONT MOVED TO ADJOURN THE MEETING; SCOTT SECONDED

 

MOTION PASSED UNANIMOUSLY

 

The meeting adjourned at 9:01 a.m.

 

 

____________________________      ____________________

Lydia Schuck                                            Date

 
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