[Vendorsmi] From the October, 2011 Braille Monitor

[Joe Sontag]

Please feel free to share this with anyone who genuinely cares about reforming and improving services to blind people in Michigan. 
The article text appears below.

[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.
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