[nfbmi-talk] Fw: Response to FOIA Request Dated 1-7-12 - MI Ethics Board Documents

joe harcz Comcast joeharcz at comcast.net
Fri Feb 3 17:20:34 CST 2012


----- Original Message ----- 
From: joe harcz Comcast 
To: Haynes, Carla (LARA) 
Sent: Friday, February 03, 2012 6:20 PM
Subject: Re: Response to FOIA Request Dated 1-7-12 - MI Ethics Board Documents


What a daisy chain...Send these tattered e-mails out wide and far...

The proof is in the pudding isn't it?

>From a Cannon  correspondence that all have seen vis a vis the conflict of interest matters with New Horizons and most especially Gwen McNeal acting as state/federal fiduciary of those self-same funds under the supervision of one Patrick D. Cannon, college dropout if he ever got that far and GS-19 making in excess of $125,000  per year to sell out the blind in this state to private nominal non-profit entities like say New Horizons and for the benefit of some hacks! There is no other word for it...

Joe

From: Cannon, Patrick (LARA)

Sent: Wednesday, February 01, 2012 10:00 AM

To:   Luzenski, Sue (LARA)

Subject:    FW: Question of Conflict of Interest

 

 

 



From: Cannon, Patrick (LARA)  

Sent: Monday, January 09, 2012 4:17 PM 

To: Haynes, Carla (LARA) 

Subject: FW: Question of Conflict of Interest

 

 

 



From: Cannon, Patrick (LARA)  

Sent: Tuesday, December 13, 2011 n10:51 AM 

To: Lisle, Marie (MCSC) 

Cc: Jones, Leamon (LARA); Brown, Melanie (LARA); Luzenski, Sue (LARA) 

Subject: RE: Question of Conflict of Interest

 

Hello Marie,

 

Mr. Harcz has raised his charges in several ways, including at Public Comment during Commision 

meetings, his postings on various list servs and in his Correspondence to the Board.  More recently he 

has advanced to Commissioners a resolution adopted by the National Federation of the Blind (of which 

he and all three commissioners are members) which raises the issue as follows:

 

RESOLUTION 2011-08

NEW HORIZONS

 

            WHEREAS, Gwen McNeal has been on the Board of Trustees of New Horizons since 

2010; and

 

            WHEREAS, the Michigan Commission for the Blind (MCB) through McNeal, continues 

to do business with New Horizons to this date including contracting for evaluations and engages 

New Horizons personnel on other cash match agreements, including one with Oakland County 

Schools; and

 

            WHEREAS, in the Rehabilitation Services Administration's (RSA) 5-year Monitoring 

Report, RSA found that the Michigan Commission for the Blind, the Macomb Intermediate 

School District, and New Horizons Rehabilitation Services engaged in an illegal "cash match" 

agreement whereby New Horizons kicked in funds for federal match, and then received a no-bid 

contract (see Finding 6); and

 

            WHEREAS, MCB Regional Manager Gwen McNeal was the responsible agent for this 

and even gave an award to New Horizons in 2008; and

 

            WHEREAS, this, by any reasonable definition, constitutes a conflict of interest between 

this MCB Regional Administrator and a Community Rehabilitation Program; and

 

            WHEREAS, this clearly violates state ethics guidelines and may well be a violation of 

state and federal laws;

 

            NOW THEREFORE, BE IT RESOLVED   by the National Federation of the Blind of 

Michigan in convention assembled this 6th day of November 2011 in the City of Kalamazoo, 

Michigan

 that the National Federation of the Blind of Michigan abhors this sort of apparent conflict of 

interests; and

 

            BE IT FURTHER RESOLVED that forthwith NFB-MI informs, in writing, 

Rehabilitation Services Administration, the Office of the Inspector General in the United States 

Department of Education, and the Michigan Attorney General's Public Integrity Office about 

this situation and requesting a thorough investigation into these and other practices.

 

 

Further, Marie, NFB members/commissioners raised the question at the Commission meeting 

last Friday, December 9.

 

We do, of course, have much more correspondence on this issue if you wish to review it.

 

Please let me know what additional information you would like, if any.

 

Best always,

 

Pat

 

 

From: Lisle, Marie (MCSC)  

Sent: Tuesday, December 13, 2011 10:14 AM 

To: Cannon, Patrick (LARA); Arwood, Steve (LARA); Brown, Melanie (LARA) 

Cc: Luzenski, Sue (LARA); Jones, Leamon (LARA); Robertson, Bob (LARA) 

Subject: RE: Question of Conflict of Interest

 

Pat,  Do you have a written complaint or other correspondence from Mr. Harcz?  If so, would you please 

send that information to me?  If not, can you summarize what his specific allegations are?  

 

Thank you!

 

From: Cannon, Patrick (LARA)  

Sent: Tuesday, December 13, 2011 8:36 AM 

To: Arwood, Steve (LARA); Brown, Melanie (LARA) 

Cc: Luzenski, Sue (LARA); Jones, Leamon (LARA); Lisle, Marie (MCSC); Robertson, Bob (LARA) 

Subject: Question of Conflict of Interest

 

Hello Steve and Mel,

 

Joe Harcz, an active consumer and involved citizen, has raised questions about a Manager at the 

Michigan Commission for the Blind who also serves as a Board Member of New Horizons, a community 

rehab partner.  We have been looking into this situation and below is a note from New Horizon officials 

who assert that no such conflict exists because of the nature of Gwen McNeal's 

involvement.  Additionally, I've been advised that every board member of the organization must sign a 

pledge to not engage or dabble in the operations of the agency in any manner.  Since Gwen attends 

these board meetings on her own time (evenings) and since New Horizon officials strongly contend that 

there is no conflict, my initial impression is that I tend to agree, although I wanted to call this to your 

attention so you are aware of the charges of Mr. Harcz.

 

Let me know if you have any questions or suggestions regarding this scenario.

 

Best always,

 

Pat Cannon

517-373-3125 - Desk  

 



From: Jones, Leamon (LARA)  

Sent: Friday, December 02, 2011 1:41 PM 

To: Cannon, Patrick (LARA) 

Subject: FW: Letter & Call in Meeting Scheduled regarding conflict issue

 

Hi Pat,

 

This is the email that Gwen asked me to forward to you.

 



From: McNeal, Gwen (LARA)  

Sent: Friday, December 02, 2011 12:24 PM 

To: Jones, Leamon (LARA) 

Subject: FW: Letter & Call in Meeting Scheduled regarding conflict issue

 

FYI as I move forward.

 



From: Marjon Davis [mailto:mdavis at NewHorizonsRehab.org]  

Sent: Friday, December 02, 2011 12:22 PM 

To: John C. Cashen (JCASHEN at BODMANLAW.COM) 

Cc: Stan Gramke (gramkestan at aol.com); bkeller at collinsburi.com; Dan Pienta; Ron Storing; McNeal, 

Gwen (LARA) 

Subject: Letter & Call in Meeting Scheduled regarding conflict issue

 

John:

 

Ron and I are researching New Horizons formal arrangement with the Michigan Commission for the 

Blind with whom Gwen McNeal is employed. Gwen has been a board member since September 25, 

2008. This whole issue has to do with her having a potential conflict of interest. 

 

New Horizons has no Cash Match Agreements with the Commission for the Blind and no contracts. 

We've served, through a "fee for service" arrangement, individuals with visual impairment sponsored or 

funded by the commission for more than 30 years.

 

We are diligently researching our board history, back to at least 2008 when Gwen came on the board, 

but really have not found anything to give credibility to these claims. 

 

In fact, I was just told by Kris Mooney, Director of Finance, that even though the board approved a 

required local match for some grants to Michigan Rehabilitation Services (MRS), due to regulatory 

changes, we were never required to send any money, so these checks were never cut to the State of 

Michigan.

 

I think we're good on this. I have faxed over the requested documents (to John Cashen only).

 

Stan A. Gramke

New Horizons Rehabilitation Services, Inc.

President / CEO

 

Call in Meeting Scheduled for 9 a.m. on Tuesday, December 6, 2011. Please see 

normal call in instruction below. 

Instructions for Conference Call In

>     Dial 1-866-303-1446 at the scheduled meeting time.

>     When prompted, enter conference code number, 2483400559 and press the # sign. (The 

conference code is the same as the New Horizons phone number.)

>     You will automatically be connected. Listen carefully to instructions as to muting, if so 

desired.

 

  ----- Original Message ----- 
  From: Haynes, Carla (LARA) 
  To: joe harcz Comcast (joeharcz at comcast.net) 
  Cc: Cannon, Patrick (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Luzenski, Sue (LARA) ; Duell, Elsie (LARA) ; Jones, Leamon (LARA) ; Gaston, Diamalyn (LARA) 
  Sent: Friday, February 03, 2012 12:56 PM
  Subject: Response to FOIA Request Dated 1-7-12 - MI Ethics Board Documents


  February 3, 2012

   

  Mr. Paul Joseph Harcz, Jr.

  E-mail: joeharcz at comcast.net

  1365 E. Mt. Morris Rd.

  Mt. Morris, MI 48458

   

  Re:  Michigan Ethics Board Communications Regarding M. Eagle

   

  Dear Mr. Harcz, Jr.:

   

  This letter is in response to your January 7, 2012, email request for copies of public records, received January 9, 2012, of which a ten day extension was taken to January 30, 2012.  Please be informed that the Department's Michigan Commission for the Blind (MCB) is processing this request under the state's Freedom of Information Act (FOIA), MCL 15.231 et seq.

   

  You have requested information you describe in your email (copy also attached) as:

   

  "I am writing today to request the December 4, 2008 letter from Patrick D. Cannon and indeed all communications to the state of Michigan Ethics Board related to the matter of Mark Eagle attached in ful after my signature line."

   

  Your request is granted as to existing, nonexempt records in the possession of the Department falling within the scope of your request.

   

  Section 4(1) of the FOIA, MCL 15.234(1), provides that a public body may charge a fee for public record search, including the mailing, costs, the cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information. The Department has estimated that a minimum of 2 hours of employee time must be drawn away from their respective duties and assignments to search, locate, and retrieve records to determine if they are responsive to your request, and to examine and review the responsive records for possible statutory exemptions from public disclosure. For the above reasons, the Department, pursuant to MCL15.234, Section 4(3) of the FOIA, has determined that failure to charge a fee in this particular instance will result in unreasonably high costs to the Department. The estimated costs to process this request, based on the hourly wages (including fringe benefits) of the lowest paid Department employee capable of performing the necessary tasks to comply with the request is $50.20.

   

  Therefore, in order to complete the processing of your request, based on the hourly wages of the lowest paid Department employees capable of performing the necessary tasks to process the request, under MCL 15.234, Section 4(2) of the state's FOIA, the Department requires a payment of $30.20, which includes a $20.00 fee waiver per MCL 15.234, Section 4(1) of the FOIA. See the attached Invoice Calculations illustrating estimated costs and payment instructions

   

  The above estimate is based on an estimated 166 pages of documents responsive to your request.  The majority of this cost is for the review of the 166 pages for items that are exempt under the FOIA and may have to be redacted.

   

  After receipt of the payment and upon completing the process of your request, the Department will notify you in writing of any balance due and payable (or owed you) before copies of the requested records are forwarded to you; and will explain any statutory basis for the exemption of any records in or in part, and your remedial rights.

   

  Sincerely,

   

  Carla Miller Haynes, FOIA Coordinator

  Michigan Commission for the Blind

   

  Attachments: 

  1.            Email of 1/7/2012 received 1/9/2012

  2.            FOIA Invoice

   

  Cc:          Patrick Cannon

                  Mel Farmer

                  Susan Turney

                  Elsie Duell

                  Leamon Jones

   



  From: joe harcz Comcast [mailto:joeharcz at comcast.net]  

  Sent: Saturday, January 07, 2012 9:17 PM 

  To: Cannon, Patrick (LARA) 

  Cc: Larry Posont MCB Comm.; John Scott MCB Comm.; lydia Schuck MCB Comm.; Elmer Cerano 

  MPAS; Arwood, Steve (LARA); Mark Eagle; nfbmi-talk at nfbnet.org 

  Subject: request mark eagle case related info

   

  JANUARY 7 2011 REQUEST INFORMATION RELATED TO MARK EAGLE

   

  PAUL JOSEPH HARCZ, JR.

  1365 E. MT. MORRIS RD.

  MT. MORRIS, MI 48458

  JOEHARCZ at COMCAST.NET

   

  TO: PATRICK D. CANNON

  DIRECTOR, MICHIGAN COMMISSION FOR THE BLIND

  (VIA E-MAIL)

   

  DEAR DIRECTOR CANNON,

   

   

   

  I AM WRITING TODAY TO REQUEST THE DECEMBER 4, 2008 LETTER FROM PATRICK D. CANNON AND INDEED ALL COMMUNICATIONS TO THE STATE OF MICHIGAN ETHICS BOARD RELATED TO THE MATTER OF MARK EAGLE ATTACHED IN FUL AFTER MY SIGNATURE LINE.

   

  MOREOVER AS A PERSON WHO IS LEGALLY BLIND I REQUEST THAT ALL DOCUMENTS ARE PROVIDED  IN A TIMELY AND ACCESSIBLE MANNER WITHOUT A SURCHARGE PURSUANT TO OBLIGATIONS UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990 (TITLE II, SUBPART E, COMMUNICATIONS), AND SECTION 504 OF THE REHABILITATION ACT OF 1973.

   

  MY OONLY REQUEST FOR ACCESS AT THIS TIME IS TO HAVE ALL DOCUMENTS SENT TO MY E-MAIL ADRESS LISTED ABOVE AS EITHER WORD ATTACHMENTS OR PLAIN TEXT ENCLOSURES FOR MY COMPUTER "TALKS".

   

  THANK YOU FOR YOUR PROMPT AND ACCESSIBLE RESPONSE TO THIS INQUIRY AS ALWAYS.

   

  SINCERELY,

   

  PAUL JOSEPH HARCZ, JR.

   

  CC: MCB COMMISSIONERS

  CC: FORMER COMMISSIONER MARK EAGLE

  CC: S. ARWOOD, LARA

  CC: RSA

  CC: NFB MI

  CC: ELMER CERANO, NISH, MPAS

   

  ATTACHMENT FOR REFERENCE IN TOTO:

   

   

  STATE OF MICHIGAN

  BOARD OF ETHICS

   

   

   

   

   

   

  ETH ETH 2009-EA-01

  IN: MARK EAGLE, COMMISSIONER 

  RE: MICHIGAN COMMISSION FOR THE BLIND

   

  MICHIGAN DEPARTMENT OF ENERGY, 

  LABOR & ECONOMIC GROWTH

   

   

  April 29, 2009

   

   

  TO:  PATRICK CANNON, DIRECTOR

  MICHIGAN COMMISSION FOR THE BLIND

  DEPARTMENT OF ENERGY, LABOR, & ECONOMIC GROWTH

  201 N. WASHINGTON, 2ND FLOOR

  P.O. BOX 30652

  LANSING, MI  48909

   

   

   

  ADVISORY OPINION

        By a December 4, 2008 letter, Patrick Cannon as Director, and on behalf of the Michigan Commission for the Blind (MCB), asked this Board to address 1) whether a conflict of interest arises where Mark Eagle is a member of the MCB and his father, Terry Eagle, represents various operators whose complaints ultimately come before the Commission for final resolution and, 2) whether the appointment of Commissioner Eagle's aunt, Cheri Eagle, to the Business Enterprise Program Elected Operator Committee creates a conflict of interest that affects his ability to deliberate and vote on issues in which his aunt is involved.

   

        The State Ethics Board (Board) found that Commissioner Eagle had a personal interest that created a prohibited conflict of interest.  The Board recognized that under ?1certain circumstances a conflict of interest may be cured by the public officer's recusal from those matters in which he or she has a personal interest.   The Board found that the conflict of interest in this situation could not be cured since it was continuous, recurring, and pervasive.  In light of this, it noted that Commissioner Eagle could not effectively function as a MCB Commissioner and that the only remedy for this conflict of interest was for Commissioner Eagle to resign or to be removed from his appointment.

   

  A.        Pertinent Facts

   

  1.      Function of the Michigan Commission for the Blind

   

        The Michigan Commission for the Blind, established pursuant to MCL 393.351, consists of five members, three of whom must be blind, who are appointed by the Governor with the advice and consent of the senate.[1][1][1]  Annually, the Commission provides various services to nearly 4,000 blind or visually impaired individuals throughout the state. These services include vocational rehabilitation services, independent living services for the older blind, and youth low vision services for visually impaired students in the K-12 system. [2][2][2] It also serves as the State Licensing Agency (SLA) for blind entrepreneurs operating food service facilities on state and federal properties.[3][3][3]?2

   

        The MCB established a Business Enterprise Program (BEP) to help facilitate the food service initiative.  Under this program a blind person becomes an operator (licensee) in the BEP and is allowed to run a concession in a government building following evaluation, training, and other services.  The operator and the MCB enter into a contract that provides, among other things, that the operator will pay a certain percentage of the concession profits to the MCB.  The MCB, in turn, will provide supervision and advice, needed equipment, and an initial stock of goods.

   

        Additionally, as the SLA, the MCB also has a quasi-judicial function.  For instance, when issues arise concerning an operator's failure to adhere to the rules governing the operation and administration of the BEP, the operator may request that an Administrative Law Judge (ALJ) hear her/his case.  Once the ALJ reviews the case and makes a recommendation, the MCB decides whether to adopt or reject the recommendation, in whole or in part.

   

  2.      Function of the Business Enterprise Program Elected Operators Committee

   

        The BEP consists of approximately 90 blind operators.  These operators elect 15 members to the Elected Operators Committee (EOC) annually. The EOC's authority and responsibilities are granted by the Federal Randolph-Sheppard Act.[4][4][4]  The EOC helps advance policies to the Commission and actively offers its input on major administrative decisions, policy, and program development decisions affecting the overall administration of the state's vending facilities program.  The members of the EOC also work with BEP staff to resolve program policy issues.  In addition, the ?3EOC receives and transmits operator grievances.  The EOC presents recommended motions to resolve policy issues to the Commission for its approval. The MCB ultimately makes the final decision on all motions presented by the EOC. The majority of the motions on which the Commission must render a decision originate from BEP.

   

  3.      Pertinent Background Information

   

        Mark Eagle is a member of the MCB, appointed by the Governor in the fall of 2007.[5][5][5]       Commissioner Eagle's father, Terry Eagle, represents various operators whose complaints ultimately come before the Commission for resolution.  Although Terry Eagle is not an attorney, the rules do allow operators to be represented by non-attorney representatives in the hearings.  Terry Eagle was not a representative at the time of Mark Eagle's appointment to the MCB.[6][6][6]

   

        At the September 2008 MCB meeting Terry Eagle stated that he served 

  as the representative of an operator whose case was under consideration.  With this announcement, the question of a conflict of interest arose with Commissioner Eagle's participation in the deliberation and vote on this particular matter.  The MCB did not vote on the conflict question and Commissioner Eagle participated in the deliberations and voting.[7][7][7] Commissioner Eagle was active in the Commission's decision-making process in addressing recommendations made by his father on behalf of parties before the Commission.?4

   

        The issue of conflict also arose at the December 2008 meeting when it was time to vote on three ALJ recommended decisions.  Terry Eagle represented the two operators involved, one of which was Commissioner Eagle's aunt, Cheri Eagle, who had two cases pending before the MCB.  At this meeting, Commissioner Eagle recused himself from the deliberations and did not vote.

   

          The issue of conflict arose once again on December 6, 2008, when Cheri Eagle was appointed to the EOC after one of its members resigned.  The Board has since learned that although Ms. Eagle continues to be an operator in the BEP, she resigned from the EOC a couple weeks prior to the Board's February 26, 2009 meeting.[8][8][8]

   

        Mr. Cannon informed the Board that during the appointment process, he informed the Governor's office that Terry Eagle was a former operator and client of the Commission and that from time to time he interacted with the agency.  However, shortly after Commissioner Eagle's appointment, his father became highly involved in various aspects of the Commission's operations, particularly the BEP and EOC.[9][9][9]  At the Board's meeting, both Director Cannon and Commissioner Eagle acknowledged that Terry Eagle currently represents over 50 percent of the operators whose complaints will ultimately come before the Commission for final resolution.[10][10][10]  Commissioner Eagle stated he recused himself when matters involved family members Cheri Eagle and Terry Eagle, and would continue to do so because he believed it was the right thing to do.?5

   

  B.        Jurisdictional and Procedural Issues

   

        The State Ethics Act applies to "public employees" and "public officers".[11][11][11] As appointees of the Governor, MCB Commissioners are public officers and are subject to the Ethics Act.

   

  C.        Board Decisions

   

        After deliberation, based upon the discussion of the parties, the 

  information submitted and consistent with its prior decisions, the Board decided as follows.

   

        Under the Ethics Act, a personal interest of a public officer includes the interest of a public officer's father or aunt, even though the public officer may not receive monetary or pecuniary remuneration. The Board held that Commissioner Eagle has a personal interest in matters before the Commission where his father or aunt is involved. The Board recognized that under certain circumstances when a conflict of interest is present, the individual with the conflict of interest can recuse himself or herself from the deliberative process or abstain from voting on 

  those matters.  However, the Board found that because the conflicts of interest presented in this situation are continuous, recurring, and pervasive, recusal or abstention would not be an adequate remedy.  In light of this, it held that Commissioner Eagle could not effectively function as a MCB Commissioner and that the only remedy for this conflict of interest was for Commissioner Eagle to resign or be removed from his appointment.?6

   

  D.        Analysis

   

        The Board of Ethics is a creature of statute and limited by the law under which it operates.[12][12][12] Section 2 of the Ethics Act prescribes standards of conduct for public officers and employees.[13][13][13] The MCB inquiry implicates sections 2(6) and 2(7) of the Ethics Act.[14][14][14]

   

  Section 2(6) provides: 

  Except as provided in section 2a, a public officer or employee shall not engage in or accept employment or render services for a private or public interest when that employment or service is incompatible or in conflict with the discharge of the officer or employee's official duties or when that employment may tend to impair his or her independence of judgment or action in the performance of official duties.[15][15][15]

   

  Section 2(7) provides in relevant part:

  Except as provided in section 2a, a public officer or employee shall not participate in the negotiation or execution of contracts, making of loans, granting of subsidies, fixing of rates, issuance of permits or certificates, or other regulation or supervision relating to a business entity in which the public officer or employee has a financial or personal interest.

   

        These two provisions form the context of the Board's analysis.  The two-fold purpose of these prohibitions is to prevent conflicts between a public officer's official duties and private interests and to prevent individuals from using their position as public officers to obtain favorable treatment for themselves or another person or entity.?7

   

        Public officers and employees are expected to exercise independent judgment in the performance of their official duties.  Section 2(6) of the Ethics Act prohibits any employment that "may tend to impair" the public officer's independence of judgment or action in the performance of his or her official duties.  Based on the facts in this case, the Board finds that Commissioner Eagle did not violate section 2(6) of the Ethics Act since he has not performed any services that may tend to impair his official duty and his father's or aunt's services cannot be imputed to him.[16][16][16]

   

         Under Section 2(7) of the Ethics Act, MCL 15.342(7), the Legislature prohibited a public officer from participating in the issuance of permits or certificates, or other regulation or supervision relating to a business entity in which the public officer or employee has a financial or personal interest.  This section is applicable because the MCB regulates blind entrepreneurs running food service facilities on state and federal properties by adopting standards that an operator must meet in order to be eligible to operate a concession.

   

        Prior Board opinions hold that the interest of a public officer's family member is a personal interest of the public officer and define "personal interest" 

  as:[17][17][17]

  . . . personal profit, financial benefit, incompatibility or conflict, 

  impairment of judgment or action, a direct or an indirect financial or 

  personal interest, the interest of the employer, the interest of a 

  company that is doing business with the employer, the interest of a 

  spouse, and the interest of one with whom an intimate relationship 

  exists . . .?8

   

        In Fischer,[18][18][18] during the settlement negotiations, the Director of the Public Service Commission's Office of Regulatory Operations, publicly disclosed the fact that the president of Michigan Gas Company (MiGas), a regulated utility, was a close personal friend, and that his son was employed at the utility.  Mr. Fischer initially abstained from any participation in the case, but later became involved when negotiations had failed.  The Board was asked to determine whether a violation of the Ethics Act occurred based on the facts outlined above.

   

        The Board determined that a personal interest includes the father-son relationship as well as a close friendship which has risen to the level of an intimate relationship. The Board held that Mr. Fischer had violated the Ethics Act when he participated in the settlement negotiations but found that since the personal interest is not continuous, recurring, or pervasive, Mr. Fischer could avoid violating the Act by abstaining from matters involving MiGas.

   

        Similarly, in Hamill,[19][19][19] the Board addressed whether a conflict of interest existed where sons of two Michigan Department of Transportation (MDOT) employees, a State Project Engineer and Senior Inspector, were employed by a private general contractor who was awarded a building contract by the MDOT. The sons sought and obtained the temporary summer employment entirely on their own and the contractor paid them the lowest hourly laborer wage offered by the contractor. The MDOT employees did not have any control over the general contractor's work assignment for the two sons. In addition, since all construction contracts awarded by the MDOT are ?9handled by the Department of Management and Budget through competitive bidding, the MDOT employees had no control or input in the competitive bidding process.

   

        The Board found that a personal relationship as contemplated by the Act did exist but concluded that the employment of these two sons by the general contractor was purely coincidental.  Unlike the instant case, the Board found that there was no Ethics Act violation because any personal interest that would be present would be de minimus since the sons were hired as the lowest paid laborers.[20][20][20]

   

        In other decisions, however, the Ethics Board has found that if the 

  involvement is continuing, recurring, or pervasive, the public officer or employee cannot avoid violation of the Ethics Act by merely abstaining on specific occasions.[21][21][21]  In the case of Hillary F. Snell, Commissioner for the Department of Natural Resources, the Board found that a conflict of interest would exist where Snell served as a Commissioner and a partner in her law firm that simultaneously represented a group which regularly appeared before the Commission.

   

        The Board acknowledges that the MCB has many functions other than its SLA function, but also recognizes that the SLA role is a major function subject to the Commission's jurisdiction.  In this situation, since Terry Eagle represents over 50 percent of the operators whose complaints will ultimately come before the MCB, this conflict of interest is definitely continuous, recurring, and pervasive.  Commissioner Eagle's willingness to abstain from participating in matters in which his father or aunt is involved is both commendable and expected.  However, this is an inadequate remedy.?10

   

        Reicks, made clear that recusal is an inadequate remedy to a conflict of interest in certain circumstances:[22][22][22]

  [A] public officer or employee can avoid violating the Ethics Act if he or she abstains from participation in a matter in which the personal interest of the public officer or employee is involved, unless the involvement is continuing or recurring, in which case the public officer or employee cannot avoid violating the Ethics Act by abstaining.

   

        Further, it is also appropriate to examine sources other than prior Board opinions when analyzing whether a conflict exists. The Board, in Smith,[23][23][23] issued an advisory opinion concluding that, although the circumstances in that case did not constitute a violation of the ethical standards of Section 2 (6) of the Ethics Act, the rule in Warren Consolidated Schools v Employment Relations Commission, 67 Mich App 58; 240 NW 2d 265 (1976), was applicable to the circumstances presented.[24][24][24] In Warren, the Court of Appeals vacated a decision of the Michigan Employment Relations Commission and remanded the matter back to the Commission because one of the commissioners, who was a brother and former law partner of the attorney for one of the parties to the case, actively participated in the decision. In ruling, the court stated:[25][25][25]?11

   

  The object of this rule of absolute disqualification is more than a guarantee that a legal dispute will be resolved objectively by unbiased and impartial persons. It is also a shield against any suspicion on the part of the litigants and the public that any subjectivity, bias and partiality contributed to the outcome of the dispute. The thought behind such a rule was best expressed by Justice Frankfurter in Baker v. Carr, 369 US 186, 267; 82 S Ct 691, 737-738 (1962):

   

  The Court's authority -- possessed of neither the purse nor 

  the sword -- ultimately rests on sustained public confidence 

  in its moral sanction. Such feeling must be nourished by 

  the Court's complete detachment, in fact and in appearance, * * *

   

  We find attainment of what the rule seeks to accomplish impossible with brother arguing to brother whether the proceeding be judicial or administrative, and even where the only impropriety on the record is the fact that one brother participated in the decision of a controversy in which his brother was one of the advocates.

   

        The Warren court held that the rule of absolute disqualification applicable to judicial proceedings is also applicable to administrative proceedings.  MCR 2.003 provides that a judge shall be disqualified when he or she cannot impartially hear a case because a person within the third degree of relationship is 1) a party to the proceeding, or an officer, director or trustee of a party, 2) acting as a lawyer in the proceeding, or 3) known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.[26][26][26]

   

        Thus, in accord with our previous decisions, we find that when 

  disqualification is continuous, recurring, or pervasive, it is not enough to merely abstain.  Even if Commissioner Eagle were to abstain and not participate in the any of the matters in which his father or aunt is involved as he has stated he would do, we find that his inability to participate would impede the full and faithful discharge of his public duties.  Considering Terry Eagle's continuing representation of various operators whose?12 complaints ultimately come before the MCB for final resolution, there is no way that Mark Eagle can perform effectively as a member of the MCB by disqualifying himself when these matters are brought before the Commission.

   

  E.        Conclusion

   

        It is the opinion of the Board, therefore, that under the Ethics Act a personal interest of a public officer includes the interest of a father or aunt, even though the public officer may not receive monetary or pecuniary remuneration.  The Board finds that Commissioner Eagle has a personal interest in matters brought before the MCB where his father or aunt is involved.  The Board recognizes that under certain circumstances when a conflict of interest is present the individual with the conflict of interest can recuse himself or herself from the deliberations or abstain from voting. However, the Board finds that recusal or abstention would not be an adequate remedy in this situation since the conflicts of interest presented are continuous, recurring, and pervasive.  In light of this, the Board is of the opinion that Commissioner Eagle cannot effectively function as a MCB Commissioner and that the only remedy for this conflict of interest is for Commissioner Eagle to resign or be removed from his appointment.

   

        The Board requests that this Advisory Opinion be conveyed to the 

  Governor.[27][27][27]

  "Yea" votes:                                           Absent:

  Lynn Jondahl                                       Frederick P. Dillingham

  Mark R. Fox                                            Frank J. Kelley

  John D. Pirich?13

  Mike Pumford

  Rabbi Paul Yedwab

   

  "Nay" votes:                                            Recused:

  None                                                    None

   

   

  BY ORDER OF THE BOARD

  Dated:

              April 29, 2009

   

  /s/

   

   

   

  Janet McClelland

  Executive Secretary

   

   


  [1][1][1] MCL 393.352 (1).

  [2][2][2] The background information was acquired from the DELEG Internet site 

  for the Michigan Commission for the Blind: 

  http://www.michigan.gov/dleg/0,1607,7-154-28077_28313-14762--,00.html. 

  [3][3][3] MCL § 393.359 requires that "[a] concession in a building or on property owned or occupied by this state shall be operated by a blind person."  Additionally, in MCL § 393.363, the legislature designated the Commission to implement the Randolph Sheppard vending stand act pursuant to 20 USC § 107 et seq.

  [4][4][4] 20 USC § 107.

  [5][5][5] February 26, 2009 Tr (Cannon) p 12.

  [6][6][6] February 26, 2009 Tr. (Cannon) p 13.

  [7][7][7] The MCB Meeting Minutes from the September 2008 Meeting. 

  [8][8][8] February 26, 2009 Transcript ("Tr") (Cannon) p 16.

  [9][9][9] February 26, 2009 Tr. (Cannon) pp. 12-13.

  [10][10][10] February 26, 2009 Tr. (Cannon) p. 16 & (Commissioner Eagle) pp. 

  33-34.

  [11][11][11] MCL 15.341(b)-(c).

  [12][12][12] MCL 15.343; MCL 15.345.

  [13][13][13] MCL 15.342.

  [14][14][14] 1973 PA 196, §§ 2(6-7), MCL 15.342(6)-(7).

  [15][15][15] Since Section 2a, MCL 15.342a, applies to public officers who 

  participate in State contracts, it does not apply to this case. 

  [16][16][16] See In Re: David Porteous, Chairman, Michigan Strategic Fund, ETH 

  1994-EA-1, p. 4 (December 9, 1994).

  [17][17][17] In Re: Roger F. Fischer, Director, Office of Regulatory Operations, 

  PSC, ETH 1989-EA-1, pp. 5-8 (July 02, 1991) pp 5-6, citing to Reicks, 77-EA-8 

  (May 31, 1977); Bellenger, 77-EA-6 (May 31, 1977); Snell, 75-EA-5 (July 18, 

  1975); and Lewis, 74-EA-5 (October 9, 1974). In Re: Travel Commission, 78-EA-

  5 (May 5, 1978).

  [18][18][18] Fischer, ETH 1989-EA-1, (July 02, 1991).

  [19][19][19] In Re: Robert Hamill, Personnel Officer, Department of 

  Transportation, ETH 1980-EA-1, (January 15, 1980).

  [20][20][20] Hamill, ETH 1980-EA-1, pp. 4-5.

  [21][21][21] Snell ETH 1975-EA-5, pp. 3-4.

  [22][22][22] In Re: George H. Reicks, Member, Air Pollution Control 

  Comm, ETH 1977-EA-8, p. 3 (May 31, 1977) citing to In Re: William S. 

  Ballenger, Director, Licensing and Regulation, ETH 1977-EA-6 (May 31, 

  1977). Also see E.g. In Re:  Kenaga, ETH 1977-EA-12 (December 15, 

  1977).  In Re:  Snell, ETH 1975-EA-5 (July 18, 1975); and In Re: 

  Chairman, Michigan Environmental Review Board, ETH 1975-EA-3 

  (March 10, 1975).

  [23][23][23] In Re: Nan Smith, Member, Barrier Free Design Board Department of 

  Labor and Richard Smith, Administrative Assistant for Barrier Free Design to the Director Bureau of Construction Codes Department of Labor, ETH 1979-EA-11, (June 12, 1979).

  [24][24][24] The Michigan Attorney General also arrived at the same conclusion. 

  See OAG, 1979-1980, No 582 (February 1, 1980).

  [25][25][25] Warren Consol Schools v Employment Relations Comm, 67 Mich 

  App 58, 59-60; 240 NW2d 265, 266 (1976).

  [26][26][26] MCR 2.003(B)(6) (a)-c)

  [27][27][27] MCL 15.345 (4)

   



  DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS

  MICHIGAN COMMISSION FOR THE BLIND

  FREEDOM OF INFORMATION ACT INVOICE

   

   

  NAME AND ADDRESS OF REQUESTER:

  Mr. Paul Joseph Harcz, Jr.

  E-mail:  joeharcz at comcast.com

  1365 E. Mt. Morris Road

  Mt. Morris, MI  48458

   

  REQUEST RECEIVED:  January 6, 2012

  TYPE OF REQUEST:  Email

  REQUEST PARTIALLY DENIED:  No

  EXEMPT INFORMATION WITHHELD/REDACTED:  To be determined

  EXTENDED RESPONSE NOTICE ISSUED:  No

  REQUESTED INFORMATION WILL BE:  Emailed/Invoiced For Partial Payment

  ACCOUNT CODE:  Index:               36200    PCA:      11343

   

  DLARA CONTACT:  Melvin Farmer, Central FOIA Coordinator

  (517) 373-0194

  Ottawa Building, 4th Floor, 611 W. Ottawa, Lansing, MI  48909

  The FOIA provides that the department may charge a fee to comply with requests for public records.  The processing fee is composed of hourly wages and benefit costs of the lowest paid employee(s) capable of processing the request; the duplication of records at assessed costs per page; mailing costs; and other related special costs.  Prior to searching and copying requested records, the department may request full payment or 50% of the estimated costs exceeding $50.00 with the balance required before mailing the records.  Assessed costs are related to your request for:

   

  "

   



  INVOICE CALCULATIONS

   

  LABOR 

                  Locating and Duplicating Cost:  

                                  Number of Hours: .5 hrs. x Hourly Rate: $25.10 = Amount:            $12.55

                  Examining and Extracting Cost:  

                                  Number of Hours: 1.5 hrs. x Hourly Rate: $25.10 = Amount:          $37.65

  TOTAL LABOR:  $50.20

  POSTAGE (estimate):     $0

  DUPLICATING:  Number of Pages times Copying Rate of $.25      $0

  OTHER (overtime, audio tapes, discs, photos, security, etc.):       $0

  SUBTOTAL:         $

  Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1)          ($20.00)

  INVOICE TOTAL:               $30.20

   

  DEPOSIT*            $0

   

  AMOUNT TO BE PAID:   $30.20

   

   

  Make check or money order payable to:               STATE OF MICHIGAN

  Remit to:                             Department of Licensing and Regulatory Affairs

  Office Services Mailroom

  7150 Harris Drive, PO Box 30015

  Lansing, MI  48909

   

  RETURN ORIGINAL COPY OF THIS INVOICE WITH YOUR PAYMENT

   

  *Please note that if a deposit is requested, the indicated amount is an estimate of the cost of complying with your request.  The actual cost may vary somewhat from this amount.

   

   

   

  Carla Miller Haynes

  DLARA Michigan Commission for the Blind

  201 N. Washington Sq., 2nd Floor

  P.O. Box 30652

  Lansing, MI  48909

  Phone:  517/373-2063

  FAX: 517/335-5140

   

  www.michigan.gov/mcb



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