From joeharcz at comcast.net Sun Jul 1 11:35:18 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sun, 1 Jul 2012 07:35:18 -0400 Subject: [Vendorsmi] all procedures here destroyed Message-ID: <9CBEF542523743F286BCFB4CAB9839F5@YOUR7C60552B9E> If the new state plan and executive order go through even these sorts of safe guards will be destroyed. This is long but very important about the role of the MCB board to make final agency determinations. This is a quasi judicial role. The conflict of interest that is clear and simple to understand is that Mike zimmer who heads the MichiganAdministrative Hearing System also under his revised state plan will also make the final agency decision on disputed cases brought before MAHS. If folks don't see the inherent conflicts that are grossly illegal and violate the Michigan Constitution then I don't know what the heck a conflict of interest is. Joe Michigan Commission for the Blind Hearing Held at: 201 North Washington Square Lansing, Michigan Tuesday, July 19, 2011 RE: Special Commission Meeting __________________________________________________________/ APPEARANCES: MCB Commissioners Present via Telephone: Mr. Larry Posont Mr. John Scott Ms. Lydia Schuck MCB Staff: Mr. Pat Cannon Ms. Constance Zanger Ms. Sue Luzenski Mr. James Hull Guests/Attendees via Telephone: Mr. Joe Harcz Mr. Fred Wurtzel Mr. Greg Keathley Mr. Dave Robinson Mr. Dennis Raterink Mr. Joe Sontag Ms. Sheila Stelmach Mr. Scott Armstrong Mr. Tom Warren Ms. Susan Przekop-Shaw TRANSCRIBED BY: REGENCY COURT REPORTING 3133 Union Lake Road, Suite A Commerce Township, MI 48382 (248) 360-2145 TABLE OF CONTENTS PAGE Michigan Commission for the Blind Hearing 3 Lansing, Michigan Tuesday, July 19, 2011 - 8:00 a.m. * * * * * UNIDENTIFIED SPEAKER: Hello? Hello? Darn, I'm not hearing anything. Hello? Hello? Hello? MS. ZANGER: Hello? Good morning. MS. STELMACH: Hello. MS. ZANGER: Hello? MS. STELMACH: Hi, Constance. This is Sheila. MS. ZANGER: Hi, Sheila. MS. STELMACH: How are you? MS. ZANGER: Good. How about you? MS. STELMACH: Okay. MS. ZANGER: Good. At the moment, just Sue Luzenski and I here in the conference room. So I'm just going to put you on mute for a few minutes, okay? MS. STELMACH: Yes, ma'am. MS. ZANGER: All righty. MR. HARCZ: Hello? MS. ZANGER: Good morning. MR. HARCZ: Hi. MS. ZANGER: Hi there. MR. HARCZ: Who is this? MS. ZANGER: This is Constance Zanger. Am I speaking with Tom Warren? MR. HARCZ: No. Joe Harcz. MS. ZANGER: Joe Harcz. Thank you. I'm just in the conference room waiting for the group here to assemble so I'm going to put the phone on mute. UNIDENTIFIED SPEAKER: Hello? Now I'm not hearing anybody. MS. ZANGER: Hello? UNIDENTIFIED SPEAKER: Hello? You're hearing me? MS. ZANGER: Yes. UNIDENTIFIED SPEAKER: Okay. I'll just mute myself. MS. ZANGER: Okay. UNIDENTIFIED SPEAKER: Just sometimes when the master mute goes, I get blanked out. You know, when it's switched from that end? MS. ZANGER: Uh-huh. UNIDENTIFIED SPEAKER: That's happened the last two teleconferences. It doesn't last the whole thing but I get like the Rosemary Woods, Nixon three missing minutes of recording. MS. ZANGER: Uh-huh. Okay. Thank you. Sue has her computer right here. UNIDENTIFIED SPEAKER: (Inaudible) MS. ZANGER: Sue's not in here yet. Well, she's here. She left -- came in and said "Good morning" to you. MS. LUZENSKI: -- I wasn't here. Okay. Are we -- MS. ZANGER: Not -- yet. No. Sheila Stelmach is on the phone and Hoe Harcz is on the phone. MS. LUZENSKI: Okay. MS. ZANGER: I don't know who else is on the phone. MS. LUZENSKI: All right. MR. HULL: Excuse me. UNIDENTIFIED SPEAKER: Hey, James. MR. HULL: Hello. How are -- UNIDENTIFIED SPEAKER: (Inaudible) UNIDENTIFIED SPEAKER: It's up to you. MR. HULL: (Inaudible) UNIDENTIFIED SPEAKER: You want to -- MR. SCOTT: Hello? UNIDENTIFIED SPEAKER: Hello. UNIDENTIFIED SPEAKER: Good morning. MR. SCOTT: Who's here? UNIDENTIFIED SPEAKER: Who is this? MR. SCOTT: John Scott. UNIDENTIFIED SPEAKER: Hey, John. Sue, Pat, James, and Connie are in the room. And I'm not sure -- quite sure who is on the phone yet. MR. SCOTT: Okay. It's not quite 8:00 is it? MS. ZANGER: No. Not quite. MR. SCOTT: Because I got -- my watch may be a little bit fast. I'll be back in a minute. I'm going to put the phone -- still the code for silent? Or mute it? UNIDENTIFIED SPEAKER: Yes, *6. MR. SCOTT: Okay. I'll be back in just a minute. UNIDENTIFIED SPEAKER: Okay. Are there any other commissioners on the line? UNIDENTIFIED SPEAKER: Is 231 -- UNIDENTIFIED SPEAKER: (Inaudible) UNIDENTIFIED SPEAKER: Yeah, -- UNIDENTIFIED SPEAKER: Okay. Okay. UNIDENTIFIED SPEAKER: Looks like Traverse City area code. MR. WARREN: Good morning. UNIDENTIFIED SPEAKER: Hello. MR. WARREN: This is Tom Warren. UNIDENTIFIED SPEAKER: Okay. Great. Thank you. I'll get you labeled. On my conference thing. UNIDENTIFIED SPEAKER: Thanks for the clarification. UNIDENTIFIED SPEAKER: (Inaudible) UNIDENTIFIED SPEAKER: Yes, -- UNIDENTIFIED SPEAKER: (Inaudible) UNIDENTIFIED SPEAKER: I did. I wanted to talk to you about that before we did that. UNIDENTIFIED SPEAKER: Yep. I was counting on that. MR. POSONT: Good morning. UNIDENTIFIED SPEAKER: Good morning. UNIDENTIFIED SPEAKER: Who is that? Is that Larry? MR. POSONT: This is Larry. UNIDENTIFIED SPEAKER: Okay. Great. MR. POSONT: Is everybody on? UNIDENTIFIED SPEAKER: No. I don't think Lydia is on yet. John is on. He stepped away for a minute. MR. POSONT: Okay. UNIDENTIFIED SPEAKER: I received an E-mail from Lydia. She may be a few minutes late in joining us. MR. POSONT: Okay. MR. SCOTT: Hello? UNIDENTIFIED SPEAKER: Hello. UNIDENTIFIED SPEAKER: Is that you, John? MR. SCOTT: Yes. UNIDENTIFIED SPEAKER: Okay. Larry is on the phone but Lydia is not yet. MR. SCOTT: Okay. She -- I read something last night that she might be late. MS. SCHUCK: Hi. This is Lydia. UNIDENTIFIED SPEAKER: Great. Okay. MS. SCHUCK: Hi there. I'm here. I'm on my cell, which isn't going to last real long and I'm having problems with the landline conference. So I'm walking in the hallway as I speak to the lady who can hopefully hook up my phone for me, so -- but we can -- we can go ahead and start if the Commissioners are there. Is Larry there? MR. SCOTT: Yeah. MS. SCHUCK: Okay. So -- MR. SCOTT: Well, -- Larry? UNIDENTIFIED SPEAKER: Yeah. He muted himself. Okay, -- MR. POSONT: I had to un-mute my line. MR. SCOTT: Okay. MS. SCHUCK: Okay. So I'm calling the meeting to order. Larry and John have just asked me to chair this meeting. And I know the least about this so that's probably good. I was about to step into an elevator then I realized that would probably cut off the phone. I'm still walking. So, first of all, roll call of the Commissioners. I heard Larry and John and I'm here. And that would establish our quorum. The next thing would be to identify everybody who is in the room. So can everybody on the call or in the room there say who is here? MS. LUZENSKI: Sue Luzenski is here. MR. CANNON: Pat Cannon. MS. ZANGER: Constance Zanger. MR. HULL: James Hull. UNIDENTIFIED SPEAKER: (Inaudible) MR. WARREN: This is Tom Warren from the Attorney General's Office along with Dennis Raterink. MS. SCHUCK: And he's an assistant of yours or your boss or something? MR. SCOTT: What is he? MS. SCHUCK: Yeah, what did you say, Mr. Warren? MR. WARREN: Mr. Raterink is my boss. UNIDENTIFIED SPEAKER: Oh, he really is. MR. SCOTT: Okay. MR. WARREN: And if Ms. Przekop-Shaw arrives, she asked if she was going to -- she could -- in as well, but she's not here yet. MS. SCHUCK: Okay. Well, thank you, Attorney General Warren, for being with us. Just one second here. I'm going to talk to the person -- UNIDENTIFIED SPEAKER: There's more people on the phone to identify, so. If they choose to. MS. STELMACH: Sheila Stelmach. MS. SCHUCK: I can. UNIDENTIFIED SPEAKER: Okay. MS. SCHUCK: I'll go back up and get my notes and come down. Okay. Thanks. That's okay. All right. So they're going to just get me squared away with a different phone but I'm going to have to go back up and get my notes. Okay. Has everyone identified themselves then? MR. SCOTT: Sheila Stelmach -- anybody else? MR. SONTAG: Joe Sontag is here. MR. SCOTT: Okay. MR. HARCZ: Joe -- UNIDENTIFIED SPEAKER: Hi, Joe. MR. HARCZ: -- is here. MR. SONTAG: Hi. MR. ARMSTRONG: -- Armstrong. MS. SCHUCK: Mr. Armstrong, are you the person who took the facility in Grayling is it? MR. ARMSTRONG: No, that's my brother, -- MS. SCHUCK: Okay. MR. ARMSTRONG: I'm -- MS. SCHUCK: Got it. Okay. Anyone else? MR. HARCZ: Joe Harcz if I'm not muted. UNIDENTIFIED SPEAKER: Yep. I've got you, Joe. MR. HARCZ: All right, -- UNIDENTIFIED SPEAKER: (Inaudible) UNIDENTIFIED SPEAKER: -- on the phone. MR. ROBINSON: Dave Robinson. MS. SCHUCK: Anyone else? I'm going up and down sets of stairs here. Being rather informal, I'm sorry, but it's just the nature of the situation right this minute. Okay. So we have -- now I'm out of breath. We have Mr. Warren here from the Attorney General's Office to give us some enlightenment about the possible -- whatever could come about as a result of the issues that are coming before the Board. And for me, just a little help on understanding the difference between an AG and an ALJ would be helpful to start out. MR. WARREN: -- Administrative Law Judge, and I'll refer to the person under the System as it existed when this case was heard; worked -- State Office of Administrative Hearings and Rules. His function or her function is to serve as the hearings officer for contested cases, which are authorized under Chapter 4 of the Administrative Procedures Act. The Michigan Commission for the Blind disputes, under Rule 56, incorporate the Administrative Procedures Act for contested cases. Therefore what happens is if the matter is not resolved administratively or informally, then a formal hearing is held. Exhibits are introduced, a transcript of the testimony is taken, and under the procedures that are set up, the administrative procedures -- under the Administrative Procedures Act, the ALJ makes a recommended decision. And that recommended decision is then presented to the Commissioners, who have, under the rules, the authority to make a final Agency decision. And a final Agency decision is one which requires a recitation of the statement of facts and the conclusions of law that lead to its final decision. An Assistant Attorney General is an employee of the Department of the Attorney General -- Mr. Schute (ph) -- particular circumstance (inaudible) represents some 18 different administrative agencies; the Michigan Commission for the Blind is one of the agencies that we represent and provide legal counsel to. MS. SCHUCK: So you are our lawyer and the ALJ is someone who goes between parties to commission business. MR. WARREN: Well the ALJ is the hearings officer assigned to the case that arises when a party makes an appeal under -- MS. SCHUCK: Right. MR. WARREN: -- (inaudible). MS. SCHUCK: Okay. And I'm familiar with that part of it. I wanted -- I think I'm more clear on how you're separate too now. So that's good. And hopefully that was helpful to other people too. Do either of the other Commissioners have questions for Mr. Warren right now? MR. SCOTT: I just had one. Mr. Warren, I am assuming, but I think I should ask; the ALJ comes under the judicial branch. Is that correct? MR. WARREN: No. The ALJ is -- falls within now the Michigan Administrative Hearing System, which is an administrative agency, which is part of the executive branch. MR. SCOTT: Okay. MR. WARREN: And I'm -- please forgive me. I'm going to have to learn to identify your voices. MR. SCOTT: Okay. I'm sorry. John Scott. MS. SCHUCK: And on a phone call like this, and especially with a lot of blind people too, it's not uncommon to just say your name first. So if you just start talking, it's okay to say, "This is Mr. Warren again." MR. WARREN: Okay. Thank you. MS. SCHUCK: Okay? That would work out real well for everybody. Okay. I'm going to set the phone down and try to call back in. But I think we could see if Larry has any questions of Mr. Warren before we go into the Stelmach case, so. Let me see. MR. POSONT: I don't have any questions currently. I just -- my question is what is our options? MR. WARREN: And to that extent, I think it would probably be best if before we enter into a discussion of the specifics of this case, that we enter into a discussion about the overview of the role of the Commissioners in reviewing such cases and -- that may be helpful in whittling out questions that we don't need to and -- to address or that -- answer and then we can get to the meat of the matter. MR. SCOTT: Okay. Sounds good to me. John Scott speaking. MS. SCHUCK: Hi. I'm back in on a landline now. UNIDENTIFIED SPEAKER: Okay. Great. MS. SCHUCK: That was me leaving the call on my other phone. Okay. And let's see. John had a couple of questions we talked about but -- okay. And I'm really ready to dig in. I'm very sorry about that everybody. So Mr. Warren, you -- I think it was your voice that was suggesting that maybe we should just talk about the role of Commissioners in decisions of this kind. So if you'd like to go ahead, that would be great. MR. WARREN: Well, I think it's important to understand the structure that you're working in. And the parameters and the factors that are going to be -- going to play a role in your decision making process. As I mentioned before, the Agency, the Commissioners, have final authority or issue the final Agency decision. And that final decision, -- Agency decision, is to find in the Administrative Procedures Act, is being made up of two parts. One is a list of the findings of fact and the other is the conclusions of law. Now the findings of fact are those things which are included in the administrative record, okay? And the Record -- MS. SCHUCK: -- we get that document that has findings of facts and his recommended -- MR. WARREN: What you get -- what you have received in that regard is the recommended decision of the ALJ. But that is based upon a Record of the proceedings that took place at the Rule 56 hearing. That means that you should receive a copy of the transcript of the testimony and you should receive all Exhibits that were admitted or proffered at that hearing and reviewed by the Administrative Law Judge. So you're -- the first requirement here is that you must have a complete Record of the proceedings that occurred at that contested hearing. Otherwise, you are not going to be in a position to know whether or not the recommendations have any basis in fact or whether or not they're authorized by law. So I guess the first marker along the road here has to be, you know, that the Commissioners receive, from staff, the complete Record. And when you have received that, then the rules trigger a timeline by which you must make a decision and -- with regards to any given case. So the first question I would have is, have you all received the full and complete Record of this case and had an opportunity to review it? MR. SCOTT: John Scott speaking. We have received a transcript. I don't think we received the Exhibits. MR. WARREN: Okay. MS. SCHUCK: That's -- I agree. This is Lydia. I agree. MR. WARREN: Okay. Under those circumstances then, you -- you know, the first prerequisite here is that you have a complete Record before you proceed on to making a final Agency decision. Otherwise you're going to be making this decision on an incomplete Record. MS. SCHUCK: And we should -- I know in the Reese Patrick (ph) case, I remember there were Exhibits. And we should assume there's Exhibits in this one too. I can't remember the document as well when I read it. MR. WARREN: Yeah. So as I say, the first step is you must receive the complete administrative Record. The complete Record of the hearing. The second is, then you examine the Record with an eye towards determining whether or not the facts as found by the Administrative Law Judge are in fact supported by competent, material, and substantial evidence. That is a constitutionally mandated standard for the review of contested cases in the state of Michigan. So therefore, while you get the suggested findings of the ALJ and he or she may set forth 15 or 20 different facts that they find, it's the Commissioner's job to determine if those facts are in fact supported by the competent, material, and substantial evidence in the Record that you've reviewed. Okay? MS. SCHUCK: Okay. I'm -- this is Lydia. I've just opened the Stelmach transcript and it shows a list of Exhibits. And I don't -- there are no attachments to this I don't believe. MR. WARREN: Okay. So -- MS. SCHUCK: Sue could maybe tell me if I'm wrong about that because I know she sent it, but. MS. LUZENSKI: No, I -- this is Sue speaking. And I have the transcript but that is all I received was the transcript. I don't have any of the Exhibits. I get the recommendation and then, you know, just in the last year and a half or so, we began getting a full transcript made. But that is all I have to forward. MS. SCHUCK: Okay. MS. LUZENSKI: -- need to look into that. MR. WARREN: It may be that you may have to contact SOAHR to get a copy of the Exhibits and the Record. MS. LUZENSKI: Correct. That's -- yeah, I'll look into that because I've never received anything more than the recommendation, you know, or the recommended decision. And as I said, in the last I think year and a half, we then started sending the recording out to get a full transcript made and that is all that I've ever received. MR. WARREN: Okay. So when you have the Record, and as I mentioned, then the Commissioners must turn their attention to whether or not the specific findings of fact are supported by competent, material, and substantial evidence. To the extent that you find that they are not, then you ought not be adopting them as findings of fact. To the extent that they are, then you are free to adopt them as findings of fact and you are also free to review the Record and make additional findings of fact, so long as they're supported by competent, material, and substantial evidence. So if the Administrative Law Judge makes findings 1 through 15, and you see that there are two other additional factors that are critical, then the Commission may make additional findings of fact. Is that clear? MR. SCOTT: Yeah. UNIDENTIFIED SPEAKER: Mm-hmm. MR. WARREN: Okay. Again, -- UNIDENTIFIED SPEAKER: And if -- MR. SCOTT: Mr. Warren? John Scott speaking. I don't think we have time for it now but I -- competent, material, and substantial evidence really as terms (inaudible) significance, is that correct? MR. WARREN: Yeah. Competent, material, and substantial evidence means -- and let me find my definition here. It is that evidence that a person would reasonably rely on. Okay? MR. SCOTT: Okay. MS. SCHUCK: Could you say the two terms again? Substantial evidence and competent -- MR. WARREN: Competent, material, and -- MS. SCHUCK: Material. MR. WARREN: -- and substantial evidence. MS. SCHUCK: Okay. Good. Thank you. I'm just trying to take a note here. MR. WARREN: And the definition is that it is -- it establishes a fact -- it must be of such a nature that a reasonable mind would accept it as sufficient to support the conclusion. It is more than a mere scintilla of the evidence but less than a preponderance of the evidence. Okay? MR. SCOTT: Okay. MR. WARREN: So it's not a particularly high standard. It's not like a criminal case where it's proof beyond reasonable doubt or where, you know, you have absolutely no question as to what the evidence shows. It's just -- there has to be some evidence, that is competent and material, that would tend to establish that fact. Okay? MS. SCHUCK: I didn't know -- MR. WARREN: And it doesn't exclude any other possibility. Somebody might look at some evidence and see it two different ways. That's fine. It doesn't mean that just because one view is adopted, that another view is not competent, material, or substantial. MR. SCOTT: Okay. MR. WARREN: Okay? MS. SCHUCK: If we're in a Commission meeting where -- well, you know, like today say, where, you know, our item is to either affirm or reverse or modify the ALJ's recommendation and we have concerns like that or I see something or one of our Commissioners knows the BEP program inside and out, you know, has information that leads him to want to know more, then we can ask some -- we can ask the person to come and give more testimony? Does it weigh the same or how does that work? MR. WARREN: Okay. And in looking at the minutes of the meeting that -- where this case -- where a case was previously discussed, there were some things there that I -- that I'll bring to your attention and just say that I'm not sure these are good practices. The Commission's role is to make the final Agency decision. It is not to interject itself into the fact-finding process, either as a witness or to become advocates for one side or the other. It is to weigh the evidence and to look at it and to make a final Agency decision. There is nothing in the rules or the law that requires that a party be allowed to speak at the meeting where the cases are being decided. And in fact, there's a great danger in inviting that because what you may get is you may get facts being offered to you during the meetings that are inconsistent with or different or supplement things that were contained in the Record. Your decision has to be based on the Record. And you put yourself in an odd position if you interject yourself into an extended portion of the hearing process by renewing it in front of the Commission during a meeting such as this. So if there are issues or questions as to whether or not facts have been sufficiently developed, the appropriate procedure is to send it back to the Administrative Law Judge for the taking of additional evidence on the issue that you have. It is not to invite comment or input from Commissioners, who may very well find themselves in a position of being a witness in the case if they're speaking to their own experiences that they -- may be relevant here. That person puts themselves in a position where they may have to recuse themselves from the decision. MS. SCHUCK: Okay. MR. WARREN: Okay? MS. SCHUCK: If we send it back, does -- do they -- they just hear what we send it back to have more information about. MR. WARREN: Yes. You're supplementing the Record. You're not -- MS. SCHUCK: Okay. It doesn't redo the whole thing from scratch. That's good. MR. WARREN: Go back to square one. You simply pick up with the issue that the Commission may want to have the ALJ flesh out, to assist it in making its decision. MS. SCHUCK: Okay. Who else sees the transcript and the decision besides the Commissioners and of course Sue and Pat, you know? MR. WARREN: I'm not sure I understand the question. MS. SCHUCK: My question is this; is there any -- suppose someone in the consumer committee -- community or someone on the elected operator committee or someone else in the BEP had a concern and sent correspondence to the Board saying -- would they have seen any of this to say "I have a concern about this area and I want to draw it to your attention," or would that not happen? This is my ignorance of the process. Are we the only people who see it, the Commissioners? And other relevant, you know, immediate parties like Pat and Sue? MR. WARREN: Well, to the extent that you haven't made a decision yet, it's a document that is within the Agency's control. MS. SCHUCK: Okay. MR. WARREN: Okay? And again, inviting somebody else to make, you know, comment is -- might be some thin ice to be out on. MS. SCHUCK: I understand. All I'm saying is would someone have seen it and approach us? MR. WARREN: Yeah, -- MS. SCHUCK: But no, they shouldn't have. MR. WARREN: The -- if a person wishes to get a copy of a public document, then they may, you know, acquire it under FOIA with cost. You know, there is no prohibition against somebody doing it. There is, however, your control as to what you're going to allow by way of the process and your review of it. There's no provision for, you know, in the rules, for somebody to -- for simply individuals not associated with the hearing to come in and have their two cents worth. MS. SCHUCK: Okay. MR. WARREN: It's a matter between this Claimant and the Commission for the Blind. MS. SCHUCK: Okay. MR. WARREN: Okay? MS. SCHUCK: Yes. And both of whom had their chance to come to the table with some representation and talk about it, so. MR. WARREN: Absolutely. That's -- MS. SCHUCK: Yes. MR. WARREN: Rule 56 allows a Claimant to appear with their, you know, at the contested hearing with Counsel or with their representative as they choose. And it's there that they flesh out what their claim is. And if their claim includes points A, B, and C, then that's all they're claiming. And you know, points X, Y, and Z aren't on the table. Okay? And weren't -- MS. SCHUCK: Okay. MR. WARREN: -- on the table. MS. SCHUCK: So Larry or John or Mr. Warren, did you want to continue talking about the process? Or Larry or John, did you want to ask questions? UNIDENTIFIED SPEAKER: There's a second prong to this but I think maybe we ought to stop at the findings of fact -- in the Record and see if there's any questions there. MR. CANNON: Tom, this is Pat Cannon with a question. You said only when Commissioners have all of the materials including the ALJ recommendation, the transcript, and any of the documents that should be part of the Record, can Commissioners consider this. Is that when the 60-day clock starts? MR. WARREN: Right. Sixty-day clock on your rule, I believe, says that you have 60 days from the receipt of the Record. MR. CANNON: Okay. MR. WARREN: And so if the Record is to include and must include all of the Exhibits, then the 60 days doesn't start until the Record is fully in the hands of the Commissioners. MS. SCHUCK: Which this one isn't. But can we -- if they don't have specific questions right now, we can move on to just hearing about the whole process. We may not have time with you like this again, so. MR. WARREN: Well, you've got my time if we can make the calendar. If we can make the -- MS. SCHUCK: Right. MR. WARREN: Let me clarify. Your 60 days in your rule says receipt of the proposed decision. Well you can't review the proposed decision without the Record. MS. SCHUCK: Okay. MR. WARREN: And, you know, you can ask that it be sent forward to you. Okay? MS. SCHUCK: Gentlemen, do you want to make a motion to that effect and -- does this mean we table Stelmach for today? I hate to even let those words come out of my mouth, but. MR. SCOTT: I -- well, I think we should make the motions at the end, after we -- MS. SCHUCK: Okay. How do you want to go with this? I want to learn more about the process because it's going to be applied again and again. And then we had some specific questions just about Stelmach's case -- Mrs. Stelmach's case too. So I don't know; what do you think, John? MR. SCOTT: I understand your (inaudible) because we have not got the Exhibits, that -- we have an incomplete Record and can't make a decision anyway. I think we just continue -- continue with the process being explained to us. MS. SCHUCK: Okay. And the questions that -- the things that you mentioned to me in an E-mail, John, is possible things that we, you know, could consider because I asked you what, in your lawyerly wisdom, you think about -- there are things that are general about all cases. Or can be about all cases. So we can ask those as they come up too, yes? MR. SCOTT: Yes. MS. SCHUCK: Okay. MR. SCOTT: I don't remember exactly what I wrote last night, but. MS. SCHUCK: You mentioned -- the things you mentioned were how the promulgated rules might restrain the Board, if we modify the ALJ's recommendation, what are the parameters, do we have the power for the -- the specific things about the Stelmach case, about the difference in money and equipment, and then -- and I'm not even sure how that exactly fits in with the transcript we've gotten or if this is just something that's come afterwards. And then if we -- it says here -- this was one of the general questions, which is one of the reasons why we called in the AG I believe; was if we simply affirm the decision of the ALJ, then what effects of arbitration are there on the process and on us as Commissioners? So sorry, Mr. Warren, I threw all that out on the table at once. But those are the kind of general things we can talk about regardless of what we do about what happens with Stelmach from here on out. MR. WARREN: I agree that it's probably a good use of our time to discuss the general terms because in doing that, you may find that the specific questions or specific discussion will be resolved. Okay? MS. SCHUCK: Okay. So -- MR. WARREN: -- (inaudible) MS. SCHUCK: -- let me look at our -- let me look at our timeline real briefly. We have 8:50 we have scheduled for public comment. We probably need -- stop me, Larry or John, please, if I'm -- but I think we have five -- we can take five minutes to make our motion about the Stelmach case and then that takes us to 8:45 and it's almost 8:30 so we have about 15 minutes to learn more about the process. Is that good with you, Larry? MR. POSONT: Yes, it is. MS. SCHUCK: Is that good with you, John? MR. SCOTT: Yes. MS. SCHUCK: Okay. So how about, Mr. Warren, there you go, 15 minutes to teach us the most you can. MR. WARREN: Okay. Well, we've covered the concept of having a complete Record. We've covered the concept of the findings of fact and that you may adopt the findings of fact, the recommendations of the ALJ, you may reject them, but in rejecting them, if you wish to, to amend and add additional findings of fact, you must do that because the Agency order, the final Agency order has to include findings of fact and conclusions of law. And if the Record is not complete enough for you to have -- to believe that it's -- that any fact has been established or that you want it fleshed out more, then you may return the matter back to the hearing stage and it's picked up and continued at that point. The third prong here, beyond Record and findings of fact, is that the decision is the conclusion of law that must be followed. And again, constitutionally, the decisions of administrative agencies must follow the law and be authorized by the law. So in other words, an administrative agency is not free to simply wield unlimited power and do whatever it chooses to do with regards to any particular set of facts. It's limited by the Constitution, it's limited by its own statute, it may be limited by other statutes that impact upon the process or the matter that's before it, and it may be limited by the administrative rules that the Agency has. So the authorized by law standard is one that does tend to limit what an Agency may do and how it may ultimately decide a case. Okay? MS. SCHUCK: And does it act like precedent too? MR. WARREN: Within the Agency, it serves as a guide too to your action. But you -- if facts vary enough or if you decide to take a different approach to a question, you have freedom to review that. MS. SCHUCK: Okay. Thank you. MR. WARREN: Okay? So the question on authorized by law then is probably best first approached by asking the question what is it that you want to do? What result do you wish to achieve? If you wish to achieve a result that says the Claimant is not responsible for income tax for the rest of her life, well, that may be a wonderful goal, but it's not authorized under your act or your rules or -- and certainly would be in conflict with the Internal Revenue Code. So you must first identify what you wish to achieve. And then you must determine do the facts support that goal; is it supported by competent, material, and substantial evidence, and then, is the goal that you achieve or the result you wish to bring about in conflict with any other statutes or rules or procedures. If it is, then you should be careful and question whether or not in fact your decision is authorized by law and meets that constitutional standard that we spoke about. MR. SCOTT: Okay. MR. WARREN: Does that make sense? So it -- you know, when you get to a case and you decide, okay, what can we do, you know, to -- let's presume that you have a case where you find that the Commission acted inappropriately or didn't satisfy something that it should have done. The question is, well what can you do to make it correct or to remedy the situation, and then test that against those limits that are out there, not only in your statute but in your rules and then other relevant statutes and the constitution to see if in fact what you wish to do is what's within your power to do. MR. SCOTT: Okay. MR. WARREN: So there -- any questions with regards to that concept, as to -- MS. SCHUCK: We can't -- MR. WARREN: -- how then you -- what the framework ought to be in addressing or looking at some of these, at reviews of Administrative Law Judges or their recommended decisions? MR. SCOTT: John Scott speaking. From what you are stating to me, you're saying that it's within the discretion of the Commission to take the acts -- choose the act as -- first, competent, material, and substantial facts and support of what was to be done. There's no conflict of laws -- conflict of laws, it's not against any constitutional state statute -- constitutional state statute, or promulgated rule, then we can act. Because I'm thinking that if there's not a specific -- for example, promulgated rule saying you cannot do something, then it's within the authority of the Commission to do what it wants to do. MR. WARREN: Well, the Commission's rules grant the Commissioners and grant the Board the policy making authority for the Commission with regards to the BEP program or the vending facility program here. So therefore, in that context, you have the authority to set policy. Okay? MR. SCOTT: Okay. MR. WARREN: And as long as your policy does not run up against and contrary to those statutes, rules, ordinances, you know, constitution, then you are probably going to be free to establish the policy in the way that you are. Where you will get in trouble is when it does run up against one of those other statutory or administrative rule provisions. And then that acts as a limit on what you can do within the context of this program that you have policy-making authority over. The Commissioners don't have policy-making authority over all aspects of the operations that are handled by staff. For example, civil service or personnel issues are staff oriented. They're not a matter for the Commission to decide. But with regards to the vending facility program and this aspect, this is your playing field. MR. SCOTT: Okay. MS. SCHUCK: And is that described in that Rule 56 too? Which aspects we look at this way? MR. WARREN: No. The Rule 56 simply adopts the Administrative Procedures Act -- MS. SCHUCK: Okay. MR. WARREN: -- and the constitution overarches all of it. But if you're looking for a good guide here, if you turn to the Administrative Procedures Act and you look at Rule 306, it's MCL 24.306. You're going to find a list of factors that the courts would reverse an Agency Determination or decision on. And it'll set forth, you know, arbitrary -- capricious, contrary to statute or law, unconstitutional. Basically those are good touchtones to look at and to set against your proposed decision and say, "Well okay, am I running up against any one of these things?" MS. SCHUCK: Sue, would you be able to find that and send that to at least the three of us? MS. LUZENSKI: Sure. MR. SCOTT: And -- John Scott. I believe you can Google that, -- Michigan Compiled Law -- MS. SCHUCK: Okay. MR. SCOTT: -- 24.306 and it should come up. MS. SCHUCK: All right. Sue, you're off the hook. MR. WARREN: Yeah. Going back to the scope of the, you know, Mr. Scott, the scope of your question as to what you can do, again, if a statute lists a certain number of options, okay? MR. SCOTT: Uh-huh. MR. WARREN: Then you can take those, you know, those options. What you may not do is do more than what is specifically set out in a list. If in fact the list was intended to be the, you know, the limitation on the authority. Okay? MR. SCOTT: Mm-hmm. MR. WARREN: Secondly, or even beyond that is you then have the question as to whether or not what you intend to do is within the intent of the statute or the rule itself. So there's two sort of checklists there. You have to look and see are they setting out a list that was intended to be specific? If so, that's what we have to follow and we can go no further. Or, are they giving us a broader reach? And if they are, that's fine, but again, it runs up against what the scope or reach of the statute or rule is. So that has to be, you know, constantly kept in mind. Otherwise, you'll find yourself heading off and attempting to do things that are beyond your reach. MS. SCHUCK: Only to have them overturned for some reason somewhere along the way so it makes it counterproductive. MR. WARREN: It does. So -- MS. SCHUCK: Better to look at it ahead of time. MR. WARREN: Yeah. Prudence and caution at the front end is probably a good guide. MS. SCHUCK: Okay. We have -- still about five minutes. MR. WARREN: Okay. MS. SCHUCK: We're learning at your feet. MR. WARREN: The, you know, this presentation or this talking of it so far I think is, you know, should hopefully give you a feel that when you pick up these cases and you receive the recommendation from the Administrative Law Judge, you know, one way to address it is you may look at it, see if in fact the Record supports the Judge's conclusions of law -- UNIDENTIFIED SPEAKER: (Inaudible) MR. WARREN: -- findings of fact. See if the Judge's conclusions of law are not -- are authorized and not in conflict with other statutes, rules, -- then your final Agency decision can be to adopt that recommendation as written by the ALJ. That saves the Commissioners and staff from having to write your own findings of fact and conclusions of law. If, on the other hand, you disagree and you wish to modify those, then there must be some writing to create those findings of fact and conclusions of law that will form the basis for your decision. You know, based on the Record that you've got. What you can't do is simply say, "Well we disagree with the ALJ, -- MS. SCHUCK: Mm-hmm. MR. WARREN: -- and we're going to rule this way." MS. SCHUCK: Right. MR. WARREN: Without having established what facts it is or that there are that you find support your conclusion. MS. SCHUCK: And if it's not there and we want more information, we just send it back rather than deciding. MR. WARREN: Yeah. Yeah. Don't attempt to supplement the Record at your hearing -- or at your meeting. That's not the forum for it. Okay? MS. SCHUCK: Mr. Warren, we're all happy to serve on the Board but we all, you know, I think have -- at least I do have this little inkling of concern of how -- can it come back to me personally? Be sued or something? If -- John probably has no questions about this because he's a lawyer and understands. But, you know, I'm not a lawyer. MR. WARREN: You are a State -- you're an individual operating or in the capacity of a State Agency. You have immunity. MS. SCHUCK: Okay. MR. WARREN: Okay? So in -- MS. SCHUCK: Not an excuse for bad behavior, but -- MR. WARREN: You know, don't go out and do a willful act or an intentional -- go out intentionally setting about to harm somebody. But to the extent that you or staff are engaged in discretionary functions and you make decisions in certain ways, you know, there's -- you're immune from a lawsuit claiming damages from you for that wrong. Okay? MS. SCHUCK: Okay. MR. WARREN: One more point I want to make with regards to your final Agency decision; let's say that you -- that a matter comes up and there is a disagreement between Commission staff and the Claimant as to what occurred and what ought to be the remedy. And let's say that at the time when the Commissioners address -- MS. SCHUCK: Can I just ask who is speaking real briefly? Who is speaking? MR. WARREN: Still Mr. Warren. MS. SCHUCK: Still Mr. Warren. Okay. I'm sorry. MR. WARREN: That suppose that the Commissioners -- that staff's interpretation is incorrect and that the findings of fact and conclusions of law ought to favor the Claimant. Okay. Then the Commissioners can task staff to draft or assist in drafting that final Agency decision. Okay? Now I can imagine that staff might be in a position of thinking, you know, we thought we were right, but you folks as the Commissioners, you're the ones who dictate what the final Agency decision will look like. Okay? It has to be, again, following the Record, supported by competent, material, and substantial evidence, authorized by law. But the final Agency decision is yours as to the BEP decisions. Okay? MR. SCOTT: Mr. Warren, John Scott. Suppose the Commissioners find -- believe the findings of facts and conclusion of law of the ALJ are correct but don't agree with the remedy. Can there be an alteration? MR. WARREN: You may issue your final Agency order and issue the remedy that is authorized by law. But under the circumstances, it's one of those where you might want to take a second -- a real hard look at what the ALJ is recommending and why. Because the ALJ has had the facts presented to her or him and, you know, more often than not may have seen a case -- some cases like this and knows sort of what the parameters are as to what may be an authorized decision. The danger of the Commission wanting to choose a different remedy is that you may be interjecting an issue into the decision that wasn't there before the ALJ. For example, supposed that, you know, your Claimant wants tax amnesty for the rest of his life. Well, if they never raised that before the ALJ, the ALJ's decision isn't going to include that. Okay? You may not then interject that as a remedy without making findings of fact and you're not going to be able to find those facts because they're not in the Record. So your review in that regard is, you know, is limited to what's in the Record and what the facts will support. If they support an alternative conclusion or an alternative remedy that was raised, then you may be okay. But there's great danger to go the other way. MR. SCOTT: Okay. Can we ask the Administrative Law Judge for example on -- say we have another possible -- we want to consider to ask the ALJ to give -- I guess the discussion or, you know, state his or her position on that particular remedy, saying why it is or is not possible? MR. WARREN: Well, I guess my initial reaction is why would you want to interject an issue into the proceedings that the parties didn't? Now you sound like or it might be viewed that you've chosen a -- you've chosen sides here. And that again is not your role. Your role is to determine what the facts and conclusions of law -- what are the proper findings of fact and conclusions of law based upon the Record. And if the Record is silent on a particular issue, then it's silent on that issue and you make your decision based upon the facts and the recommendations and the conclusions of law that were made by the ALJ. MS. SCHUCK: I'm going to interrupt because my clock is saying 8:47 and I want to make sure that public comment happens at the time we said. In case people are coming in for it. So I think we're going to have to -- we may have to get more information about some of these things later. Mr. Warren, I probably interrupted you. So maybe you can finish, you know, your thought and then one of the two Commissioners, can we get a motion on the floor regarding the Stelmach case? MR. WARREN: Right. The -- MS. SCHUCK: So Mr. Warren, it's to you again right now. MR. WARREN: Thank you. The last comment I would make is, is always keep in mind that the ALJ's remedy may not be authorized by law as well. So again, you know, the document that comes forward to you and those findings of fact and conclusions of law are for you to review and determine if they're in fact correct. And where they're not correct, then, you know, then you have certain means by which you can affect some correction. Okay? MR. SCOTT: Okay. MS. SCHUCK: Yes. And if there's something we don't like about the remedy, we can ask for a certain part to be fleshed out further in the ALJ process. MR. WARREN: If -- you may. I would suggest that if it's within the realm or the subject matter that was raised by the parties. MS. SCHUCK: Right. We can't just bring in something that we thought of. MR. WARREN: The problem with bringing in -- MS. SCHUCK: Okay. MR. WARREN: -- something that you think of is that it begins to look like the proceedings are taking a bias toward one side or the other. MS. SCHUCK: Right. I see your point. MR. WARREN: And you can't do that. MS. SCHUCK: Okay. Mr. Warren, I'm going to thank you now in case I forget to. Thank you for coming in and I don't remember your boss' name exactly but I'm glad that -- thank you for -- thank him too for being there and the other people too. Let me hear from my fellow Commissioners now about a motion. MR. SCOTT: John Scott. In light of the fact that we had not gotten -- received the full Record, that being the Exhibits, I move at this time that we table decision on the Stelmach case until we get the Exhibits. MR. POSONT: I second it. MS. SCHUCK: Okay. Motion is on the floor and seconded. Is there any further -- is there any discussion? MR. POSONT: I would think that the only question I have and I don't know where I got this from, is it's not clear in the decision of the Administrative Law Judge from my point of view the time factors of when the location was bidded out and was awarded to the other operator to make a decision if there was something else happening, clearly in the decision when they made the decision and moved the vendor. I don't see that as clear. Maybe I'm -- making it clear. But I see a problem of fact where I didn't understand where the time factors were clear enough. MS. SCHUCK: Do we want to -- I mean we're going to be asking for the Exhibits. We have the rest of the Record. Do we want to ask now to have a timeline fleshed out better or do we want to wait until we have the Exhibits? What's your thought, guys? UNIDENTIFIED SPEAKER: (Inaudible) MR. SCOTT: I understand where Commissioner Posont is coming from. The thing that's going through my mind is my -- I didn't have (inaudible) timelines in -- Exhibits are probably, I would think are all dated. I think we need to review the Record as received and then make a determination whether or not we need more fleshing out. MS. SCHUCK: And we definitely -- I mean we know from other things we've heard that sometimes a temporary situation should have -- should be set up while things get worked out and that didn't happen here and that's something to consider, you know, separate from this case. Because that's not -- wasn't necessarily the policy to always do it that way. That is something we want to set out to talk about in the future. But John, I think I'm with you that we should just get those Exhibits and if we can identify anything specific we want fleshed out, then we need to bring it to the table in September? Is that where we want to leave this or do you want to try to meet in two weeks so that we -- if -- or should we let each other know if we should talk to Director Cannon, one or all of us, if we want to meet again to talk about this so that we can move to have something else fleshed out before our September meeting? I don't want to wait, you know, over a month again just to say, "We need to have this part heard again." UNIDENTIFIED SPEAKER: If we get the Exhibits and give us time to work on those Exhibits and then we would have the evidence or what we believe -- to make a decision. MS. SCHUCK: Okay. MR. CANNON: Lydia, this is Pat with just -- MS. SCHUCK: Yes, sir. MR. CANNON: -- comment. One, doing the calculation in my head, I think if all of the Exhibits in theory were received by Commissioners today and the 60 day clock would start today, that takes us to September 18th. So I think we have time for Commissioners to be thorough in their review, what takes place next. And my other suggestion is because the word "table" has specific connotations under Robert's Rules of Order, -- MS. SCHUCK: Yes. MR. CANNON: -- I would suggest rather that we use the word "defer action" rather than "table." MS. SCHUCK: Okay. Thank you. Okay. So I guess then, you know, as soon as possible, we want the Exhibits. The 60-day clock starts then. And if we're -- so we're moving to defer action on -- I'll state it, gentlemen, you can correct me, okay? And we're moving to defer action on the Stelmach case until 60 days after -- within -- we're going to act within 60 days after receiving the items that need to be attached, the Exhibits. MR. SCOTT: Yes. MS. SCHUCK: Okay. And in that 60 days, we could -- well, we can come together at the September meeting and say that we need a certain part fleshed out again if we see that in there. Or we can do that ahead of time if we want to call a special meeting just to do that. UNIDENTIFIED SPEAKER: Correct. MS. SCHUCK: Okay. MR. SCOTT: Yes. MS. SCHUCK: Is that -- UNIDENTIFIED SPEAKER: -- question. MS. SCHUCK: Sue, how did you write that down? MS. LUZENSKI: What I've just put was "Scott moved to defer action on the decision on the Stelmach case within 60 days of all Exhibits being received. Posont seconded." MS. SCHUCK: Does that -- is that acceptable to you gentlemen? MS. LUZENSKI: Is that clear? MR. SCOTT: Yes, that's fine. MS. LUZENSKI: Okay. MR. POSONT: That's okay. MS. SCHUCK: Larry? Okay. All right. So I'm going to call for the vote. All in favor? MR. SCOTT: Aye. MR. POSONT: Aye. MS. SCHUCK: Aye. Did you hear all of us, Sue? MS. LUZENSKI: Yep. I got it. MS. SCHUCK: Okay. And now -- gentlemen, if it's all right with you, we will open it for public comment. UNIDENTIFIED SPEAKER: Okay. UNIDENTIFIED SPEAKER: Okay. Let me un-mute everybody. MS. SCHUCK: Okay. And then please state your name and make your comment. My clock says 8:54. I have permission to be a little late to class. I don't know if John has permission to be late to Court, so -- MR. SCOTT: Well, it's not (inaudible) be picked up between 9:00 and 9:20. MS. SCHUCK: I was trying to make you sound really important, like they're holding a case for you. Anyway. Okay, so -- UNIDENTIFIED SPEAKER: Everybody is un-muted. MR. WURTZEL: Fred Wurtzel, Madam Chair. MS. SCHUCK: Go ahead, Fred. MR. WURTZEL: I'm sorry -- my coughing is using up my three minutes. UNIDENTIFIED SPEAKER: I restarted you, Fred. MR. WURTZEL: -- I want to commend Mr. Warren. I came on a little late so I didn't really hear the beginning. However, I am so pleased with this presentation this morning, having been the administrator of the Business Enterprise Program for many years. What was presented this morning sits perfectly with my understanding of the process and the procedure. I've also had some classes in administrative law and if those things are followed, it will make your job so much easier to do. And it will also prevent some of the extraneous noise that's happened around Commission meetings with regard to these cases. Because I just -- I think that the whole process has become a little bit unwieldy, unruly, and I think that this is going to make your life so much simpler and it gives you quite a bit of latitude, but yet it gives you necessary limits which will be very helpful to you. And it also makes things easier for staff when presenting material because it sets up who is in charge of what. So I'm very happy that this presentation has happened this morning. I hope that you get a good recording of this and listen to it three or four times before each -- time you have to make these decisions, because you'll find it very useful. So thank you for your presentation, Mr. Warren. That was great and I'm really glad that you as -- gotten some competent advice on this -- on these matters. MS. SCHUCK: Thank you, Fred. MR. WARREN: Thank you for your kind words, sir. MS. SCHUCK: Who is next? MR. HARCZ: Joe Harcz. MS. SCHUCK: Go ahead, Joe. MR. HARCZ: Yes. I want to echo what Fred said. I also would like to comment on the elephant that's been in the room. For as long as I've been in Michigan, much of this goes to both Commissioners, people within the entire process getting information in a timely and accessible manner. And I would like to add to what the Attorney General said. What we're dealing with in this circumstance are federal civil rights laws, the Americans with Disabilities Act, which is going to have it's 21st birthday coming up in about ten days, and Section 504. And they do override. They are at play throughout the entire process. We're dealing with blind people here. They need to have their information to get due process of law within these administrative law proceedings. We have blind Commissioners who are asked -- for ten years to make determinations without the full package. And so that's a real problem and it's riddled throughout. It's riddled not -- not only within the Michigan Commission for the Blind, which should be the leader on this standard, but also throughout every state agency, in part because the Michigan Commission for the Blind hasn't been proactive in those regards. So I'd like to echo what Fred said -- or what Fred said and I would also like us to keep our eyes on the prize. Because you people can't make good decisions, the clients within the process cannot make good, informed decisions, and we've already seen where many don't even get their IPE. Nobody can make appropriate decisions without the information in a format that they can use (inaudible). I thank you. MS. SCHUCK: Thank you, Joe. Anyone else? MR. KEATHLEY: Madam Chair, Greg Keathley. MS. SCHUCK: Go ahead, Greg. MR. KEATHLEY: Sorry I wasn't on here earlier. I didn't think it started 'til 8:45 and I was on mute when I did come on. Anyway, I just wanted to disagree with Fred and Joe a little bit. I think some of what Mr. Warren said was totally off base, and I think the Board obviously agreed by wanting to review these Exhibits. I don't think you guys are a judicial board and everything is not about law. What you guys are doing is about what's right. And who was fixing what was wrong. Everybody's always saying, "Well you gotta go by what the ALJ says" and this and that. That's not true at all. In my opinion. And I think that this Board obviously sees that by the fact that they want to review these Exhibits. And I think once they do, they'll see this case and understand it and see that Sheila was wronged and she's just asking for a suitable remedy for what she suffered during when she was wronged. That's my comment. Thank you all very much. MS. SCHUCK: Okay. Thank you, Greg. Anyone else? If there's no more further comment, I -- are there any concerns from the Commissioners or shall we adjourn? I guess I need a motion to adjourn if you would like to. MR. POSONT: I make a motion that we adjourn. MS. SCHUCK: I think I need you to second, John. MR. SCOTT: I second it. MS. SCHUCK: Thank you. Okay. The motion is on the floor. I'm going to assume there's no discussion. So I call for the vote. All in favor of adjourning? MR. POSONT: Aye. MS. SCHUCK: Aye. MR. SCOTT: Okay, -- MS. SCHUCK: Are you saying "Yes," John? MR. SCOTT: Yes. MS. SCHUCK: You're willing to adjourn? Okay. Thank you everybody. We'll look forward to those -- getting those Exhibits and move on from there. UNIDENTIFIED SPEAKER: (Inaudible) MS. SCHUCK: Thanks everybody. Thanks. Bye-bye. UNIDENTIFIED SPEAKER: All right. Thank you. MR. SCOTT: Okay. Bye-bye. (WHEREUPON, the hearing was adjourned at 9:01 a.m.) -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Mon Jul 2 11:14:03 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Mon, 2 Jul 2012 07:14:03 -0400 Subject: [Vendorsmi] Fw: what the gov can't do legally Message-ID: <2DC7D0B13AF744AD9B90EC9F9A315E76@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: nfbmi-talk at nfbnet.org Sent: Monday, July 02, 2012 7:11 AM Subject: what the gov can't do legally This is precisely what is not in the authority of any Governor to do under the Michigan Constitution: "B. The Commission for the Blind, created by MCl 393.352, and the Commission Board, created by 1999 AC, R 391.1 et seq., are abolished. " Only the legislature can reverse an act of the legislature. That is unless we've enterred an unprecedented era of dictatorship here in Michigan. Joe Harcz -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Mon Jul 2 19:27:09 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Mon, 2 Jul 2012 15:27:09 -0400 Subject: [Vendorsmi] Fw: one of the buildings i've been complaining about Message-ID: <82AFEA20499040609BD9E361213C1DAD@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Richard Bernstein Esq Sent: Monday, July 02, 2012 3:12 PM Subject: Fw: one of the buildings i've been complaining about ----- Original Message ----- From: joe harcz Comcast To: Mike Zelley TDN Cc: Luke Zelley TDN Sent: Monday, July 02, 2012 3:06 PM Subject: Fw: one of the buildings i've been complaining about This is a state leased building and one where the MRS and MCB have offices and will be holding an illegal, because it isn't fully accessable public meeting. These are facts and documented facts. By the way there wasn't raised character and Braille signage on every permanent room (ADAAG 3.40.1, 4, 5, 6) in 1992 and there isn't now. It's a "proggram access issue for the blind.... ----- Original Message ----- From: joe harcz Comcast To: Richard Bernstein Esq Cc: nfbmi-talk at nfbnet.org ; MARK CODY ; Elmer Cerano MPAS Sent: Monday, July 02, 2012 3:01 PM Subject: one of the buildings i've been complaining about Suit being filed over handicap accessibility at - Flash Player Installation http://www.myfoxdetroit.com/story/18910048/2012/06/28/lawsuit-being-filed-against-state-over-handicap-accessibility-at-cadillac-place Posted:Jun 28, 2012 8:21 PM EDT Updated:Jun 28, 2012 8:21 PM EDT By Alexis Wiley - email Jill Babcock says Cadillac Place is not easily accessible for people living with disabilities. (Credit: WJBK | myFOXDetroit.com) Jill Babcock says Cadillac Place is not easily accessible for people living with disabilities. (Credit: WJBK | myFOXDetroit.com) DETROIT (WJBK) - "Being a state government building, it has to be accessible to all," said Jill Babcock. That includes people like her and Gerald Lyons. Both of them work at the state's Cadillac Place building and they say it is not easily accessible for people living with disabilities. "The state's not following federal law," said Lyons. For example, only two of the building's entrances are labeled handicap accessible and one is so steep Babcock can barely make it through the door. Plus, Babcock has not been given handicap parking, something the state says it doesn't have to provide for any employees. "I get dropped off by the bus because I cannot drive down because there's no handicap parking," Babcock said. Lyons pays to park in a garage, but his options are limited. "I'm small in stature, so I can't reach the buttons in the elevator in the parking structure. So I only have one level that's really feasible for me to park at." When he asked the state to make the buttons more accessible, "They told me I should carry a stick so I can use the stick to reach the buttons." "I was extremely independent and now I have to be dependent," said Babcock. That's taking a toll physically and emotionally. "I'll spend the weekends sleeping as opposed to doing things because I'm so tired out from the work week," she said. "You don't have accessible ramps, you don't have accessible entrances, you don't have accessible parking, you don't have accessible hallways, you don't have accessible doorways, you don't have accessible courtrooms, you don't have accessible restrooms in this building," said attorney Richard Bernstein. That's exactly why Bernstein says he is taking this case free of charge. He is filing a lawsuit in federal court demanding the state make Cadillac Place truly compliant with the Americans with Disabilities Act. "The way that the ADA was designed, it was designed to make sure that people with disabilities and special needs can have an opportunity to live an independent, good quality of life," Bernstein said. The governor's office won't comment on the lawsuit, but a spokesperson told us their goal is to make sure the building is compliant with federal law. Babcock says right now the building is not. "I'm tired of having to explain to people the problems, and I kind of wish that they would take it on themselves, common sense." That federal lawsuit is expected to be filed within the next two weeks and it could take years before we get a decision. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Tue Jul 3 17:26:53 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 3 Jul 2012 13:26:53 -0400 Subject: [Vendorsmi] {Disarmed} Fw: Emailing: 0, 4601, 7-154-61256_28313-281633--, 00.htm Message-ID: LARA - State Plan Amendments, Notice of Public Meetings ----- Original Message ----- From: joe harcz Comcast To: Luke Zelley TDN Cc: Mike Zelley TDN ; Susan Fitzmaurice Sent: Tuesday, July 03, 2012 1:24 PM Subject: Fw: Emailing: 0,4601,7-154-61256_28313-281633--,00.htm Check out the onerous, protocols and also note lack of accessability. Nothing About us without Us! ----- Original Message ----- From: joe harcz Comcast To: Elmer Cerano MPAS Cc: MARK CODY ; blind democracy List ; nfbmi-talk at nfbnet.org Sent: Tuesday, July 03, 2012 1:21 PM Subject: Emailing: 0,4601,7-154-61256_28313-281633--,00.htm Browsers that can not handle javascript will not be able to access some features of this site. Skip Navigation Michigan.gov Home LARA Home | Sitemap | Contacts | Press Releases | Online Services Employment, Security & Workplace Safety > MERC/Bureau of Employment Relations > Michigan Commission for the Blind Employment & Training Services-Vocational Rehab Business Services Braille and Talking Book Library Services for Blind Seniors Services for Youth Deaf Blind Services Michigan Commission for the Blind Training Center Eye Doctors Food Service Employment and Operator Information Food Service and Customer Care MCB Board Events Calendar Resources Press Room > MIOSHA > Rehabilitation Services > Unemployment Insurance Agency > Workers' Compensation Agency All About LARA Agencies, Bureaus & Commissions Licensing & Regulation Michigan Administrative Hearing System Office of Regulatory Reinvention Printer Friendly Text Version Share this link: a.. Twitter b.. Facebook c.. Yahoo d.. Google e.. Digg f.. Newsvine g.. StumbleUpon h.. Bookmark i.. Email Page State Plan Amendments, Notice of Public Meetings July 9, 11, and 13, 2012 Department of Licensing and Regulatory Affairs Michigan Commission for the Blind State Plan Amendments Notice of Public Meetings July 9, July 11, and July 13, 2012 2:00 p.m. - 6:00 p.m. The Michigan Commission for the Blind (MCB), Michigan Department of Licensing and Regulatory Affairs (LARA), will hold public meetings at five locations, as set forth below, to receive comments on proposed amendments to the FY 2013 State Plan for Vocational Rehabilitation Services and the State Supported Employment Services Program (Proposed State Plan Amendment). The Proposed State Plan Amendment implements provisions of Executive Order 2012-10 and will be submitted for final approval to the United States Department of Education, Rehabilitation Services Administration. The five public meetings will be held as follows: Lansing Monday, July 9, 2012, 2:00-6:00 p.m. Lake Superior Room Braille and Talking Book Library 702 West Kalamazoo Street Lansing, MI 48909 Escanaba Wednesday, July 11, 2012, 2:00-6:00 p.m. Conf. Room 2nd Floor Escanaba Office State Office Building 305 Ludington Escanaba, MI 49829 Kalamazoo Wednesday, July 11, 2012, 2:00-6:00 p.m. Kalamazoo Room MCB Training Center 1541 Oakland Drive Kalamazoo, MI 49008 Detroit Friday, July 13, 2012, 2:00-6:00 p.m. Room L150 Cadillac Place 3038 W. Grand Blvd. Detroit, MI 48202 Gaylord Friday, July 13, 2012, 2:00-6:00 p.m. Hearings Room Michigan Dept. of Environmental Quality 2100 W. M-32 Gaylord, MI 49735 The link to the Proposed State Plan Amendment and the link to Executive Order 2012-10 are posted on the Michigan Commission for the Blind website at www.michigan.gov/mcb. Written comments on the Proposed State Plan Amendment may be submitted by email message, with "state plan comments" in the subject line, to Diamalyn Gaston at gastond at michigan.gov. Written comments may also be submitted in person at any of the above meetings. All written comments, including email on the Proposed State Plan Amendment must be received no later than 5:00 p.m. Monday, July 16, 2012. All meeting sites are accessible. Individuals attending the meetings are requested to refrain from using heavily scented personal care products in order to enhance accessibility for everyone. Persons with disabilities requiring additional accommodations (such as materials in alternative format), or a language interpreter in order to participate in the meeting or submit comments must call 1-800-292-4200 by 5:00 p.m. Thursday, July 5, 2012. To encourage orderly administration of the meetings and minimize the possibility of any disruptions, meetings will be conducted in accord with the protocols approved by the LARA Director and MCB as follows: 1.. The sole purpose of the meeting is to accept comments from the public regarding the Proposed State Plan Amendments. 2.. Each meeting shall be chaired by a designated representative of MCB. 3.. The meeting chairperson shall preside over all aspects of the meeting. 4.. The meeting chairperson shall have final authority to implement and interpret these meeting protocols so as to maximize public comment opportunities while maintaining order and decorum. 5.. Members of the public who desire to make public comment will be given a number and recognized by the meeting chairperson in numerical order; each member of the public making a comment shall be provided a single, five-minute time period to make their public comment. Members of the public wishing to submit written or recorded comments at the meeting may do so by providing the written or recorded comment to the meeting secretary at the meeting. 6.. All meeting participants shall avoid engaging in any form of disruptive conduct. All participant behavior shall be appropriate and respectful. The meeting chairperson may require any participant to immediately cease any disruptive behaviors, and may direct the removal of any non-compliant person. 7.. Groups or organizations desiring to make comments may choose to designate a single representative to make comments on behalf of the group or organization. 8.. The meeting chairperson shall designate a meeting secretary who shall ensure that a summary of all public comments and material submitted at the meeting is compiled, along with a record of the date, time, place, and identification of staff of MCB who attend the meeting. The meeting chairperson shall have authority to approve the summary. 9.. The meeting chairperson shall cause the meeting summary to be published on the following website: www.michigan.gov/mcb. 10.. The meeting chairperson shall have authority to implement additional meeting protocols in order to ensure reasonable and necessary accommodations or meet other legal requirements. For general information about the Michigan Commission for the Blind, visit the MCB website at www.michigan.gov/mcb, or call toll free: 1-800-292-4200; TTY 888-864-1212. For general information about LARA, please visit www.michigan.gov/lara. Related Content ? Executive Order 2012-10 ? MCB Office Locations & Staff Directory: ? MCB Success Stories ? Michigan Commission for the Blind video ? Welcome to the Michigan Commission for the Blind ? MCB Braille and Talking Book Library--Eligibility & Application ? MCB Documents and Reports ? MCB Website Search Tips ? 2011 Annual Report, Michigan Commission for the Blind ? Contact the Michigan Commission for the Blind ? Report broken links or other problems regarding the Michigan Commission for the Blind website Michigan.gov Home | LARA Home | State Web Sites | Office of Regulatory Reinvention Accessibility Policy | Link Policy | Privacy Policy | Security Policy | Michigan News | Michigan.gov Survey Copyright ? 2001-2012 State of Michigan -------------- next part -------------- An HTML attachment was scrubbed... URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: lara2011banner-2_1_351240_7.png Type: image/png Size: 94876 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: lara2011banner-2_2_351241_7.png Type: image/png Size: 4621 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: 0_99_7.gif Type: image/gif Size: 43 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... 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Name: emailthis.gif Type: image/gif Size: 375 bytes Desc: not available URL: From joeharcz at comcast.net Tue Jul 3 17:32:14 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 3 Jul 2012 13:32:14 -0400 Subject: [Vendorsmi] check out onerous protocols Message-ID: <98E8E431983D460BBD77D611586FCC7F@YOUR7C60552B9E> State Plan Amendments, Notice of Public Meetings July 9, 11, and 13, 2012 Department of Licensing and Regulatory Affairs Michigan Commission for the Blind State Plan Amendments Notice of Public Meetings July 9, July 11, and July 13, 2012 2:00 p.m. - 6:00 p.m. The Michigan Commission for the Blind (MCB), Michigan Department of Licensing and Regulatory Affairs (LARA), will hold public meetings at five locations, as set forth below, to receive comments on proposed amendments to the FY 2013 State Plan for Vocational Rehabilitation Services and the State Supported Employment Services Program (Proposed State Plan Amendment). The Proposed State Plan Amendment implements provisions of Executive Order 2012-10 and will be submitted for final approval to the United States Department of Education, Rehabilitation Services Administration. The five public meetings will be held as follows: Lansing Monday, July 9, 2012, 2:00-6:00 p.m. Lake Superior Room Braille and Talking Book Library 702 West Kalamazoo Street Lansing, MI 48909 Escanaba Wednesday, July 11, 2012, 2:00-6:00 p.m. Conf. Room 2nd Floor Escanaba Office State Office Building 305 Ludington Escanaba, MI 49829 Kalamazoo Wednesday, July 11, 2012, 2:00-6:00 p.m. Kalamazoo Room MCB Training Center 1541 Oakland Drive Kalamazoo, MI 49008 Detroit Friday, July 13, 2012, 2:00-6:00 p.m. Room L150 Cadillac Place 3038 W. Grand Blvd. Detroit, MI 48202 Gaylord Friday, July 13, 2012, 2:00-6:00 p.m. Hearings Room Michigan Dept. of Environmental Quality 2100 W. M-32 Gaylord, MI 49735 The link to the Proposed State Plan Amendment and the link to Executive Order 2012-10 are posted on the Michigan Commission for the Blind website at www.michigan.gov/mcb. Written comments on the Proposed State Plan Amendment may be submitted by email message, with "state plan comments" in the subject line, to Diamalyn Gaston at gastond at michigan.gov. Written comments may also be submitted in person at any of the above meetings. All written comments, including email on the Proposed State Plan Amendment must be received no later than 5:00 p.m. Monday, July 16, 2012. All meeting sites are accessible. Individuals attending the meetings are requested to refrain from using heavily scented personal care products in order to enhance accessibility for everyone. Persons with disabilities requiring additional accommodations (such as materials in alternative format), or a language interpreter in order to participate in the meeting or submit comments must call 1-800-292-4200 by 5:00 p.m. Thursday, July 5, 2012. To encourage orderly administration of the meetings and minimize the possibility of any disruptions, meetings will be conducted in accord with the protocols approved by the LARA Director and MCB as follows: List of 10 items 1. The sole purpose of the meeting is to accept comments from the public regarding the Proposed State Plan Amendments. 2. Each meeting shall be chaired by a designated representative of MCB. 3. The meeting chairperson shall preside over all aspects of the meeting. 4. The meeting chairperson shall have final authority to implement and interpret these meeting protocols so as to maximize public comment opportunities while maintaining order and decorum. 5. Members of the public who desire to make public comment will be given a number and recognized by the meeting chairperson in numerical order; each member of the public making a comment shall be provided a single, five-minute time period to make their public comment. Members of the public wishing to submit written or recorded comments at the meeting may do so by providing the written or recorded comment to the meeting secretary at the meeting. 6. All meeting participants shall avoid engaging in any form of disruptive conduct. All participant behavior shall be appropriate and respectful. The meeting chairperson may require any participant to immediately cease any disruptive behaviors, and may direct the removal of any non-compliant person. 7. Groups or organizations desiring to make comments may choose to designate a single representative to make comments on behalf of the group or organization. 8. The meeting chairperson shall designate a meeting secretary who shall ensure that a summary of all public comments and material submitted at the meeting is compiled, along with a record of the date, time, place, and identification of staff of MCB who attend the meeting. The meeting chairperson shall have authority to approve the summary. 9. The meeting chairperson shall cause the meeting summary to be published on the following website: www.michigan.gov/mcb. 10. The meeting chairperson shall have authority to implement additional meeting protocols in order to ensure reasonable and necessary accommodations or meet other legal requirements. list end For general information about the Michigan Commission for the Blind, visit the MCB website at www.michigan.gov/mcb, or call toll free: 1-800-292-4200; TTY 888-864-1212. For general information about LARA, please visit www.michigan.gov/lara. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 4 13:47:28 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 4 Jul 2012 09:47:28 -0400 Subject: [Vendorsmi] Fw: another state building out of compliance Message-ID: <3D374169599A44269E88B33A350E125A@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Richard Bernstein Esq Cc: MARK CODY Sent: Wednesday, July 04, 2012 9:41 AM Subject: another state building out of compliance Here is the summary of the State Library where public hearings on the rummied MCB state plan will be held. Note this was conducted belatedly by DTMB in 2008 and note these are only highlights of violations of program access requirements under ADA, Title II to have been implemented January 26, 1992. Also Title I of the Rehab Act requires fully accessable facilities for public hearings! My Lord, the ADA is now almost 22 years old, 504 is older and we don't have program access for the blind and other PWD in state buildings used for the blind and PWD concerning VR programs? How ludicrous and how utterly discriminatory is this? The State of Michigan needs to be systemically sued over these ongoing civil rights violations. Oh happy Independence Day by the way. My independence day is July 26. Joe Harcz Segment from DTMB survey: "Michigan Library and Historical Center ? Survey Building #10 Page 4 filled in for CACIL). To aid the auditors, the Department of Management and Budget provided Integrated Architecture with existing drawings of the forty buildings. Each State owned building was audited by walking through all spaces accessible to the public, taking notes on the building floor plans, and documenting the existing conditions (measurements and photography). Following the building audits, the representatives from Integrated Architecture were responsible for filling out the checklist. Each building checklist was tailored to the specific conditions of that specific building. After the completion of the checklist, Integrated Architecture compiled a building summary that listed code related and non-code related items. With the help of CACIL and the DMB, this list was then prioritized and assigned a preliminary budget to complete the most urgent. Michigan Library and Historical Center ? Survey Building #10 Page 5 Michigan Library and Historical Center 702 W Kalamazoo Street ? Lansing, MI Survey Building #10 The Michigan Library and Historical Center is located on the Southeast corner of Butler Boulevard and Allegan Street in Lansing, Michigan. The Michigan Library has five floors that are accessible to the public (1st, 2nd, 3rd, 4th & 5th Floors) and the Historical Center has six floors that are accessible to the public (1st, 2nd, 2M, 3rd, 3M & 5th Floors). The following is a list of recommendations made by Integrated Architecture & CACIL after surveying the building in order to address barrier free deficiencies. These recommendations are divided into two categories: items pertaining to the code, and items that are not specifically pertaining to the code but are recommendations made as a reasonable measure of barrier free accommodations. The only hierarchy in the items listed is that the items in bold have been identified as the most urgent priority. Accessibility items specifically related to 2006 Michigan Building Code Chapter 11, ANSI 117.1-2003 or ADAAG: ? Replace interior signage throughout with proper signage (many locations have existing signage that may be brought into compliance by relocating it and only adding additional Braille signage). See photo 10_344. ? Provide permanent directional signage throughout to help aide way-finding thru the public spaces, especially on the 1st floor. See photo 10_004. ? Provide vision impaired grooves in the concrete at the curb cuts on the south side of the building. See photo 10_265. ? In each of the eighteen restrooms, men?s & women?s on all floors of the building: o Remove one toilet in each restroom in order to convert two existing stalls into one barrier free stall. Existing side wall grab bars may be reused, but new grab bars for the back wall are needed. New partition door hardware must be operable with a closed fist. o Provide a power assist door operator where there is not adequate clear floor space on the push/pull side restroom doors. See photo 10_244. o Provide anti-scald wrap on all of the exposed plumbing below the sinks (this is not needed where there is a built-in valence that shields the plumbing below the sinks). See photo 10_224. ? Provide signage at all non-accessible restrooms that identifies where the nearest accessible restroom is located. ? Replace existing drinking fountains that are currently built into a counter top with ADA compliant drinking fountains. See photo 10_201. ? Provide a power assist door operator at the following locations: Executive conference room (5th Floor), Michigan Historical Commission Room (5th Floor). See photo 10_218. ? Provide Braille at the elevator call buttons for all elevators on all floors of the building. See photo 10_025. ? Provide an accessible height counter at the Library computer desks (2nd, 3rd & 4th Floors). See Photo 10_309. Michigan Library and Historical Center ? Survey Building #10 Page 6 ? Move furniture in the Library to maintain proper clear aisle widths and walking paths (2nd, 3rd & 4th Floors). ? The planters on the 4th floor Library side should be moved so that they can identify the vaulted walls (i.e. protruding objects) to a person using a cane. See photo 10_286. ? In the various displays in the Historical Center: o Provide alternate means of audio/visual/tactile communication that are available to all patrons. See photo 10_040. o Provide a fixed element (i.e. a railing, raised plinth or cane-detectable base) in the areas where display elements involve obstructions that are not detectable by a person using a cane (the specific areas are noted in greater detail in our checklist). See photos 10_063, 10_088, 10_117 and 10_199. o Provide signage to identify areas where the flooring is uneven, or not level (the specific areas are noted in greater detail in our checklist). Also, a staff member should be present at these areas to help any patrons that need assistance, or a call button should be provided to page a staff member that can provide assistance. See photos 10_118 and 10_168. o Provide a handrail at all ramps. See photos 10_123 and 10_125. Accessibility items not specifically related to 2006 Michigan Building Code Chapter 11, ANSI 117.1-2003 or ADAAG: ? In the various displays in the Historical Center: o Provide proper hardware, and tactile controls, for interactive displays, such that they are easily identifiable and not a hazard for pinching one?s fingers (the specific areas are noted in greater detail in our checklist). See photo 10_084. o Provide closed captioning for the narration of all video displays. See photo 10_178. ? Provide signage at the elevator lobbies indicating that the main reception desk for the Library is on the 2nd floor. See photo 10_341. Michigan Library and Historical Center ? Survey Building #10 Page 7 " -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 4 15:01:08 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 4 Jul 2012 11:01:08 -0400 Subject: [Vendorsmi] Fw: Important Read - Fwd: Executive Order 2012-2 Message-ID: ----- Original Message ----- From: Susan Fitzmaurice To: joeharcz at comcast.net Sent: Wednesday, July 04, 2012 10:51 AM Subject: Fwd: Important Read - Fwd: Executive Order 2012-2 ---------- Forwarded message ---------- From: Marlene Malloy Date: Tue, Apr 17, 2012 at 10:04 AM Subject: Important Read - Fwd: Executive Order 2012-2 To: membership_fy_11 at mrccouncil.org Please scroll down for the most current info about the new EO. In the interim prior to October 1st - I have been told to work with the Appointments Office in an effort to bring the council into compliance in the very near future. Updates will be provided as information is shared. Marlene Begin forwarded message: From: "Porter, Jaye (LARA)" Date: April 17, 2012 9:13:29 AM EDT To: MRS All Cc: 'Marlene Malloy' , "'Valarie Barnum Yarger'" Subject: Executive Order 2012-2 Deliberations are in process to rescind Executive Order 2012-2 and replace it with a new Executive Order that would: 1.. Transfer MRS and MCB, on October 1, 2012, as separate bureaus to the Department of Human Services 2.. Reconstitute the State Rehabilitation Council to cover both MRS and MCB; and 3.. Modify administration of the Business Enterprise Program under DHS and DTMB Draft Executive Order revisions are being reviewed by principle parties and could be further revised based on this review and discussion. They are, therefore, not yet ready for release. We expect the rescission and new Executive Order to be released by 4/25/12. Meanwhile, MRS will proceed to develop a separate FY 2013 State Plan Amendment, which will be presented for comments in public meetings, likely scheduled for this June. This advance notice may help prepare you for related inquiries. As previously done, please continue to forward any questions on this subject to Lou Adams, who will add them to our ?Frequently Asked Questions? document. We will keep you apprised as further developments occur. Thank you for your patience. Jaye N. Porter, Director Michigan Rehabilitation Services Department of Licensing and Regulatory Affairs PO Box 30010, Lansing, MI 48909 517.373.3390; 517.335.7277 (fax) PorterJ3 at michigan.gov Pursuant to state and federal law, the contents of this message, including any attachments, may be privileged and confidential. Therefore, you may not disseminate this message unless you are authorized by law to do so and have secured all necessary approvals. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege or confidentiality. -- You received this message because you are subscribed to the Google Groups "MRC MEMBERSHIP FY 11" group. Messages replied to via 'reply' or 'reply to all' will be sent to the entire group. Use the 'CC:' option to include other e-mail addresses as needed. To send 'NEW' messages to this group, send email to: membership_fy_11 at mrccouncil.org This group includes (24) e-mail addresses for the following: 21 Members: Carol Bergquist, Cecily Cagle, Anthony Carmichael, Eleanor Chang, Beth Childress, Adolph Cwik, Sheryl Diamond, Susan Fitzmaurice, Shon Halacka, Joanne Lamar, James Lewis, Tracie Lewis-Jennings, Deanna Middlebrooks, Ruth O'Connor, Caryn Pack Ivey, Lisa Rutledge, Brian Sabourin, Felix Sirls, Dennis Stanford, Jacqueline Thomas, Luke Zelley. 3 Staff: Rachelle Bangela, Marlene Malloy, Shori Teeple. Please direct questions/concerns regarding use of the MRC Membership FY 11 e-mail list to: council at mrccouncil.org -- Susan Fitzmaurice Disability Savvy - Creative Solutions for Disability Access Teddy's Ts - my son's civil rights & disability justice micro enterprise! Disability Soapbox - a one-stop entry to all my passions and my blog! Disabiliwiki - formerly known as the Katrina Disability Resource Site - slowly being updated state by state. Contact Me LinkedIn Facebook WordPress Twitter -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 5 14:28:01 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 5 Jul 2012 10:28:01 -0400 Subject: [Vendorsmi] irreputable harm Message-ID: <7F8080F0EA93487291713433248EEC4B@YOUR7C60552B9E> Now relative to the EO 2012-10 note the entire Public Act 260 is "nulified" and abolished. This means that the state mandate to establish state facilities for BEP operators is also abolished! So if this is allowed to go through all state BEP operators will be irrevocably harmed! Now, this only goes to operators and not the impact on all blind people in the VR/IL programs which also will be irrovacably harmed. Joe Harcz -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 5 17:30:03 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 5 Jul 2012 13:30:03 -0400 Subject: [Vendorsmi] Fw: Fw: Appeal to AG of final agency decision Message-ID: <3C301293534F469DA866AAD462E02BE8@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Farmer, Mel (LARA) Sent: Thursday, July 05, 2012 1:29 PM Subject: Re: [Vendorsmi] Fw: Appeal to AG of final agency decision So you mean there is no right to appeal a final agency determination by the MCBB Board under promulgated rules or statute. Thank you for the information. Sincerely, Paul Joseph Harcz, Jr. ----- Original Message ----- From: Farmer, Mel (LARA) To: 'joe harcz Comcast' Cc: Haynes, Carla (LARA) ; Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) Sent: Thursday, July 05, 2012 1:27 PM Subject: RE: [Vendorsmi] Fw: Appeal to AG of final agency decision The Mr Terry Eagle's emailed FOIA request to Ms. Carla Haynes, MCB, was denied June 28, 2012 pursuant to MCL 15.235, Section 5(4)(b) of the state's Freedom of Information Act (FOIA) because: --The requested records do not exist in this Department -- A public body is not required to research questions of law as requested. ------------------------------------------------------------------------------ From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Thursday, July 05, 2012 12:53 PM To: Farmer, Mel (LARA) Cc: Haynes, Carla (LARA) Subject: Fw: [Vendorsmi] Fw: Appeal to AG of final agency decision ----- Original Message ----- From: Joe Sontag To: VENDORSMI List Sent: Thursday, June 28, 2012 1:21 AM Subject: [Vendorsmi] Fw: Appeal to AG of final agency decision Here we go again! ----- Original Message ----- From: Terry Eagle To: 'Joe Sontag' Sent: Thursday, June 28, 2012 0:26 Subject: Appeal to AG of final agency decision As a request under the Michigan Freedom of Information Act, may I please have a legal citation of administrative rule or law that authorizes an appeal to the Office of the Attorney General from a final agency decision in a licensee grievance. Additionally, my request includes disclosure of whom within the Office of the Attorney General's office will be rendering such opinion, as it appears such appeal request raises serious issues of ethical conflict-of-interest, as well as the attorney canon of conduct with respect ethics in representation and full disclosure of such representation. Best regards, Terry Eagle Such appearance of ethics are raised by the fact that Ms. Zanger was observed consulting with Mr. Warren in the hallway immediately following Mr. Warren's presentation and advice to the MCB Board. ------------------------------------------------------------------------------ Sent: Wednesday, June 27, 2012 11:20 AM To: risasteve92 at yahoo.com; Terry Eagle Subject: FW: Final Agency Decision From: Zanger, Connie (LARA) [mailto:zangerc at michigan.gov] Sent: Tuesday, June 26, 2012 3:23 PM To: Risa Patrick-Langtry Cc: 'Fred Wurtzel'; Cannon, Patrick (LARA); Luzenski, Sue (LARA); Hull, James (LARA) Subject: Final Agency Decision Hello, Risa; We can appreciate your sense of urgency in initiating action in response to the Commission Board's 15 June 2012 final agency decision in Docket #2009-1705. And with the Commission, I know you, too, appreciate the complexity of the decision and its myriad implications. To ensure that we act appropriately in all aspects of this situation, the informal advice of the Attorney General is being sought and we will take action in the matter subsequent to receipt of that advice. Regards, Constance Zanger Business Enterprise Program Manager Michigan Commission for the Blind 517/335.3639 517/335.5140 (facsimile) "To contract new debts is not the way to pay old ones." GEORGE WASHINGTON, in a April 7, 1799 letter to James Welch ------------------------------------------------------------------------------ _______________________________________________ Vendorsmi mailing list Vendorsmi at nfbnet.org http://nfbnet.org/mailman/listinfo/vendorsmi_nfbnet.org To unsubscribe, change your list options or get your account info for Vendorsmi: http://nfbnet.org/mailman/options/vendorsmi_nfbnet.org/joeharcz%40comcast.net -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 5 17:34:48 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 5 Jul 2012 13:34:48 -0400 Subject: [Vendorsmi] Fw: Fw: Appeal to AG of final agency decision Message-ID: <0436D2A6B2914365922C96AB28CF2FD0@YOUR7C60552B9E> ----- Original Message ----- From: Farmer, Mel (LARA) To: 'joe harcz Comcast' Cc: Haynes, Carla (LARA) ; Cannon, Patrick (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Luzenski, Sue (LARA) Sent: Thursday, July 05, 2012 1:34 PM Subject: RE: [Vendorsmi] Fw: Appeal to AG of final agency decision My response speaks only to the FOIA request made June 28, 2012-- the requested records do not exist in LARA; and that a public body is not required to research questions of law. -------------------------------------------------------------------------------- From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Thursday, July 05, 2012 1:30 PM To: Farmer, Mel (LARA) Subject: Re: [Vendorsmi] Fw: Appeal to AG of final agency decision So you mean there is no right to appeal a final agency determination by the MCBB Board under promulgated rules or statute. Thank you for the information. Sincerely, Paul Joseph Harcz, Jr. ----- Original Message ----- From: Farmer, Mel (LARA) To: 'joe harcz Comcast' Cc: Haynes, Carla (LARA) ; Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) Sent: Thursday, July 05, 2012 1:27 PM Subject: RE: [Vendorsmi] Fw: Appeal to AG of final agency decision The Mr Terry Eagle's emailed FOIA request to Ms. Carla Haynes, MCB, was denied June 28, 2012 pursuant to MCL 15.235, Section 5(4)(b) of the state's Freedom of Information Act (FOIA) because: --The requested records do not exist in this Department -- A public body is not required to research questions of law as requested. ------------------------------------------------------------------------------ From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Thursday, July 05, 2012 12:53 PM To: Farmer, Mel (LARA) Cc: Haynes, Carla (LARA) Subject: Fw: [Vendorsmi] Fw: Appeal to AG of final agency decision ----- Original Message ----- From: Joe Sontag To: VENDORSMI List Sent: Thursday, June 28, 2012 1:21 AM Subject: [Vendorsmi] Fw: Appeal to AG of final agency decision Here we go again! ----- Original Message ----- From: Terry Eagle To: 'Joe Sontag' Sent: Thursday, June 28, 2012 0:26 Subject: Appeal to AG of final agency decision As a request under the Michigan Freedom of Information Act, may I please have a legal citation of administrative rule or law that authorizes an appeal to the Office of the Attorney General from a final agency decision in a licensee grievance. Additionally, my request includes disclosure of whom within the Office of the Attorney General's office will be rendering such opinion, as it appears such appeal request raises serious issues of ethical conflict-of-interest, as well as the attorney canon of conduct with respect ethics in representation and full disclosure of such representation. Best regards, Terry Eagle Such appearance of ethics are raised by the fact that Ms. Zanger was observed consulting with Mr. Warren in the hallway immediately following Mr. Warren's presentation and advice to the MCB Board. ------------------------------------------------------------------------------ Sent: Wednesday, June 27, 2012 11:20 AM To: risasteve92 at yahoo.com; Terry Eagle Subject: FW: Final Agency Decision From: Zanger, Connie (LARA) [mailto:zangerc at michigan.gov] Sent: Tuesday, June 26, 2012 3:23 PM To: Risa Patrick-Langtry Cc: 'Fred Wurtzel'; Cannon, Patrick (LARA); Luzenski, Sue (LARA); Hull, James (LARA) Subject: Final Agency Decision Hello, Risa; We can appreciate your sense of urgency in initiating action in response to the Commission Board's 15 June 2012 final agency decision in Docket #2009-1705. And with the Commission, I know you, too, appreciate the complexity of the decision and its myriad implications. To ensure that we act appropriately in all aspects of this situation, the informal advice of the Attorney General is being sought and we will take action in the matter subsequent to receipt of that advice. Regards, Constance Zanger Business Enterprise Program Manager Michigan Commission for the Blind 517/335.3639 517/335.5140 (facsimile) "To contract new debts is not the way to pay old ones." GEORGE WASHINGTON, in a April 7, 1799 letter to James Welch ------------------------------------------------------------------------------ _______________________________________________ Vendorsmi mailing list Vendorsmi at nfbnet.org http://nfbnet.org/mailman/listinfo/vendorsmi_nfbnet.org To unsubscribe, change your list options or get your account info for Vendorsmi: http://nfbnet.org/mailman/options/vendorsmi_nfbnet.org/joeharcz%40comcast.net -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 5 22:33:24 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 5 Jul 2012 18:33:24 -0400 Subject: [Vendorsmi] Fw: request meeting minutes Message-ID: ----- Original Message ----- From: Luzenski, Sue (LARA) To: joe harcz Comcast Sent: Thursday, July 05, 2012 6:14 PM Subject: RE: request meeting minutes Joe, Attached are the draft meeting minutes of the June 15, 2012 Commission meeting. Sue From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Tuesday, June 26, 2012 4:43 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); Larry Posont MCB Comm.; lydia Schuck MCB Comm.; John Scott MCB Comm.; nfbmi-talk at nfbnet.org; MARK CODY; Elmer Cerano MPAS; Craig McManus RSA; Zimmer, Mike (LARA) Subject: request meeting minutes June 26 OMA ADA Rehab Act Request MCB Minutes June 26, 2012 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: Patrick D. Canon, Director Michigan Commission for the Blind (Via e-mail) Dear Mr. Cannon, I am writing today to receive in accessible format the required draft meeting minutes of the June 15, 2012 MCB Board meeting. As you've been informed these are required to be completed and remitted pursuant to the Michigan Open Meetings Act, the Americans with Disabilities Act of 1990, and several provisions of the Rehabilitation Act of 1973 as amended. As I am blind I have the right to receive them in accessible format which in my instance is simply to remit them as a Word attachment and/or plain text enclosure to my e-mail address listed above. Failure to timely respond let alone remit them is a violation of the above referenced laws and my civil rights and is actionable under aforementioned state and federal laws as you know being the former ADA Coordinator of the State of Michigan. Thus I thank you in advanced for prompt remittance. Sincerely, Paul Joseph Harcz, Jr. Cc: S. Luzenski, Admin. Ass. Cc: MCB Commissioners (who should have these too) Cc: MPAS Cc: NFB MI Cc: RSA Cc: M. Zimmer, LARA -------------- next part -------------- An HTML attachment was scrubbed... URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: MCB draft minutes 6 15.doc Type: application/msword Size: 129536 bytes Desc: not available URL: From joeharcz at comcast.net Thu Jul 5 23:17:10 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 5 Jul 2012 19:17:10 -0400 Subject: [Vendorsmi] juen 15 minutes as enclosure Message-ID: <33B09B4DCABC40B286F31EACF15AC532@YOUR7C60552B9E> DRAFT MICHIGAN COMMISSION FOR THE BLIND FRIDAY, JUNE 15, 2012 CONSTITUTION HALL 525 W. ALLEGAN STREET LANSING, MI CON CON A & B MINUTES COMMISSIONERS PRESENT Mr. Larry Posont Ms. Lydia Schuck Mr. John Scott COMMISSIONERS ABSENT There are 2 Commissioner vacancies. MICHIGAN COMMISSION FOR THE BLIND STAFF PRESENT Mr. Pat Cannon Ms. Sue Luzenski Ms. Susan Turney Ms. Julia Burdgick Ms. Constance Zanger Ms. Christine Boone Ms. Sue Chinault Ms. Carla Haynes Mr. Chris Lautner Ms. Alyssa Clark Mr. Josh Hoskins Mr. Joe Pelle Mr. Leamon Jones GUESTS/ATTENDEES Mr. Mark Eagle Mr. Terry Eagle Ms. Valarie Barnum-Yarger Mr. Joe Sontag Ms. Mary Wurtzel Mr. Fred Wurtzel Mr. Steve Langtry Ms. Risa Langtry Ms. Mary Ann Robinson Mr. David Robinson Mr. Rodney Craig Mr. Leonard Yourist Mr. Tom Warren Mr. Bob Rafferty Ms. Pamela King Ms. Paulette Powell Mr. Mike Powell Mr. Marcus Simmons Ms. Kim Walsh Mr. Joe Harcz (via telephone) Mr. Joe Sibley (via telephone) Call to Order, Roll Call and Determination of Quorum The meeting was called to order at 8:40 a.m. Roll call was taken and a quorum was determined. Staff and attendees introduced themselves. APPROVAL OF MINUTES SCOTT moved to accept the MARCH 23, 2012 Board meeting MINUTES; SCHUCK seconded. Discussion: There was no discussion. THE Motion passed unanimously. APPROVAL OF AGENDA SCOTT moved to accept the AGENDA; SCHUCK seconded. Discussion: There was no discussion. THE Motion passed unanimously. PUBLIC COMMENT Mr. Joe Sontag: Hello, Joe Sontag, Lansing. I don?t have a whole lot to say this morning but may have a few things to say later this afternoon. I just thought I?d point out as the BEP as of this morning as of this date there still has been no resolution and no meaningful communication whatsoever regarding my points and the baseline points and other points earned in the time since I left active operation in 2010. And I find this all rather frustrating if not entirely surprising given the management style that seems to pervade the program. It?s no wonder that the program itself, even though it?s the highest visibility thing that this Commission does, and it?s been the most successful employment program for blind people both in Michigan and around the country that given the already tough economic situation that it?s really a shame they don?t do a better job working together. I realize very well that responsibility for a lot of that falls on operators and there?s no overlooking it but the current employment where certain people by virtue of special relationships or the ability to drive and otherwise appear to be non-blind seem to be free to write their own tickets and the rest of us, especially those of us who have political connections or affiliations that are not approved by management seem to have a much more interesting course regardless of the merits of what we do or what we have done so with that I?ll relinquish the balance of my time and thank you. Mr. Terry Eagle: Good morning, Terry Eagle. I speak as the representative, President of the National Association of Blind Merchants of Michigan and I?d like to speak briefly on the administrative hearing that?s going to be before you, decision that?s going to be before you today. I think it?s outrageous that it has taken 364 days to get to this point to have Ms. Langtry have her proposed decision addressed. Former Chair Pilarski avoided addressing it by asking the same persons of whom the grievance was against resolve it or settle it or whatever and she just pawned off her responsibility and the Boards responsibility off onto the same people who created the grievance in the first place. I was Ms. Langtry?s representative at that time and after that and one other case I decided to step aside because I believe that this board, not the current board, but the Commission for the Blind was retaliating against me because of my advocacy and representation of blind merchants and that?s why Fred Wurtzel is now involved in the administrative hearings. And I implore you to do right and give this woman her just dues now and forever let the program grow the way it was intended to grow. It?s ridiculous how the locations are going down the drain and people are not even making minimum wage at the locations in many cases. And I begged and pleaded with the operators committee and this management to look at locations out of the past 4 years and I believe, personally, that we?re at the point of LARA wanting to turn this program over to the Department of Management and Budget and I believe, personally, to destroy this program because of the lack of compliance with the law, the lack of management that is competent and the out and out lack of care for blind people as merchants in this state. Thank you. Commissioner activities Commissioner Schuck thanked everyone for coming and expressed excitement at all the ways people are able to participate in the meeting, especially given transportation issues that exist all around. She shared that she didn?t have any activities to report. Commissioner Scott informed attendees that he?s been busy since the last Commission meeting in March and shared a story of where he first heard Mr. Freeman talk, the guest speaker at this meeting, whom he had arranged to be here. He also gave an overview of other activities he has been involved in including working with churches and mosques on social and economic issues in Southeastern Michigan regarding collaborating on transportation issues in that area, and also working with Warriors on Wheels who are advocating for solving transportation issues for the disabled in Southeastern Michigan. Commissioner Schuck added that she attended the MAER, Michigan Association for Education in Rehabilitation, conference and made a presentation on her research for what parent?s desire for transition planning. She shared there was great discussion from the attendees which sparked some future meetings to have continued dialogues about transition services. Commissioner Schuck also reported that she heard an excellent speaker, Beth Kennedy, talking about deaf blind needs around the state. Commissioner Posont reported that he has worked on a committee drafting the 2013 State Plan. He shared that he gained knowledge on how the State Plan works, how it?s been amended in the past and the intent and function of the document. He also commented on the three universities and the undergraduate and master?s programs degrees. Commissioner Posont wrapped up by saying that participating in the development of the State Plan was a good experience educating him on different facets of the State Plan. He went on to report that he has not been very involved in the Business Enterprise Program meetings, although vendor frustrations continue. BOARD CORRESPONDENCE Ms. Luzenski informed the Board that there were two pieces of Board Correspondence received from Mr. Joe Harcz. Both pieces were read aloud and are attached in their entirety to the end of these minutes. Commissioner Scott shared that he had contacted Assistant Attorney General Tom Warren regarding the need for clarification on a decision that had been made by the Board on the choosing of a new operator for the State Plate Cafeteria and he was waiting for that information. PUBLIC COMMENT (via telephone) Mr. Joe Harcz: This is Joe Harcz, I?m talking as loud as I can. One, we have continued violations of the Americans with Disabilities Act on an ongoing basis and Section 504 of the Rehabilitation Act, both in regard to the program access, alteration triggers, accessible public meetings and accessible information. It goes to the last meeting where there was no raised character and Braille signage on every permanent room and compliance with the alteration triggers after $3.5 million worth of renovations at the Training Center. Now that responsibility goes to the Agency but also the Department of Technology Management and Budget which oversaw that program. Now we?re talking about, the Governor and all kinds of people are talking about turning over to DTMB our BEP program and everything else when they can?t even figure out how to follow the ADA. And by the way, there are also thousands of documents, and I?m talking thousands of documents that are image based files under DTMB?s control. We also have lack of complaint continually by Michigan Administrative Hearing System with continued requests for accessible information to petitioners violating their due process rights. We also have a continued conflict of interest going on with MCB staff funneling money into New Horizons for various programs and services while she sits on the Board. And that by the way is an operation that offers sub minimum wage to people with disabilities as do all of our community rehab programs. It?s an outrageous exploitation which will be brought up this afternoon but not continue. We also have the continued lack of accountability of this Agency on how it spends its money. Going back to the State Plate, that?s been vacant for 7 months. We plowed in money into that, untold amounts with no blind operator in there. The promulgated rules are clear and we can follow those rules and as I said in my Official Board Correspondence ladies and gentlemen, you can rescind what you voted on in February. You didn?t have enough information, you know that was kind of rammed through, I?m not throwing out any kind of blame. The only people that can change the promulgated rules and change Public Act 260 are the legislators. That?s the end of that story and by the way that goes to the Executive Order and any shenanigans going around that, you know as well, in the mix. The Governor, under the Constitution, has the authority to transfer us to another agency but he does not have the authority under the Michigan Constitution to effectively reverse an act of the legislator. If this state doesn?t want a separate Commission for the Blind then the legislature has the bill and rescind Public Act 260. Other than that we should not secede our authority on both state and federal mandates. Thank you. Status of Governor?s Executive Order Transferring Commission Director Cannon recapped the history of the issuance and rescinding of Executive Order 2012-2. He also updated attendees that there has been no official word of when a new Executive Order will be issued. Director Cannon also confirmed what Commissioner Posont had stated earlier that the State Plan draft cannot be completed until the new Executive Order is issued and wording from that can be incorporated. Commissioner Posont added that it is his understanding that the attempt to separate the Business Enterprise Program state and federal facilities are what has held up the issuing a new EO and could possibly be the reason the State Plate has been held up. Director Cannon stated that since the rescinding of the Executive Order the Administration has made a sincere effort to listen to comments and concerns made by staff and stakeholder groups. Commissioner Scott said it appeared that discussions going on with MCB and the consumer groups are surface discussions because the Board does not know any information. He urged the Administration to talk to the Board, consumer groups and RSA. Director Cannon added that at the National Council for State Agencies of the Blind attendees from the national offices of the National Federation of the Blind and the American Council of the Blind both shared there have been conversations with Chief Deputy Director Zimmer and expect the state to respond to the concerns expressed during these conversations. Commissioner Schuck shared a story about the question asked of Mike Zimmer at the legislative appropriations committee meeting if he or staff had any insight into what was driving the Executive Order and neither could supply more of an explanation than creating efficiencies. Accessible Public Transportation in Detroit Ms. Pamela King, the Detroit Department of Transportation (DDOT) ADA Coordinator spoke on behalf of DDOT and Mr. Ron Freeland the Chief Executive Officer who could not attend. Ms. King gave an overview of the DDOT and her role as the ADA Coordinator in relation to DDOT including making modifications to policy and procedures to ensure ADA compliance and investigate complaints under Title II. Discussion included clarification that DDOT strictly deals with transportation. Commissioner Scott gave background on his interactions with Ms. King and Commissioners asked if Mr. Freeland has any solutions to rider complaints about long rides, fixed route and para-transit issues. Ms. King explained that there are changes being made to deal with known issues and complaints. Director Cannon asked if there were any plans for DDOT to educate riders on how to more effectively use the fixed route system, Ms. King answered there were not currently any plans and hoped to start this soon. Commissioner Schuck asked for an explanation of how the para-transit system worked, Commissioner Scott and Ms. King explained how the transportation system works in Detroit. State Plan Director Cannon reported that tentative State Plan meeting dates would be planned in Escanaba, Gaylord, Lansing, Kalamazoo and Detroit. He reiterated that these dates were tentatively planned in July and would be based on the issuing of a new Executive Order. Director Cannon also advised Commissioners that there is a need to hold two phone meetings with Commissioners and these will be determined based on the dates that public hearings occur. Commissioner Schuck asked if BEP is exempted from being considered and is the rest of the State Plan basically the same as the previously adopted plan. Director Cannon answered yes the plan is essentially the same. She also asked if MCB has been involved in the discussions regarding the Federal/State split of the BEP program. Director Cannon shared that staff have been involved with some conversations but not all. Business Enterprise Program (BEP) Ms. Constance Zanger, Business Enterprise Program Manager updated Commissioners on items in her written report and noted which Director objective the information correlated with. She also informed attendees that BLAST will not be held in 2012 but planning has begun for 2013. Ms. Zanger also reported that two EOC representatives travelled to Illinois to attend a BEP workshop and Michigan is hoping to reciprocate at some point. Ms. Zanger also updated Commissioners on what some of the new BEP operators are doing in their facilities and spoke about the upcoming EOC sub-committee meetings and regularly scheduled EOC quarterly meeting. Commissioner Schuck asked Ms. Zanger about the inventory project stating that she felt it was moving slowly. Ms. Zanger informed that she had forwarded a pre-proposal document to LARA Finance for their review. Administrative Law Judge Recommendation ? Robyn Kay Commissioner Schuck read the ALJ recommendation. Commissioner Posont shared his thoughts that the Commission is not actively seeking new locations as there is no motivation for staff to build new locations and the site that was lost was not a mandated site. Ms. Zanger added that the Promotional Agent has been working with the Transportation Services Administration to secure an additional site for this vending route. SCHUCK MOVED TO AFFIRM THE ALJ RECOMMENDATION; SCOTT SECONDED. Discussion: Commissioner Scott added that, because this isn?t a mandated site, there isn?t a whole lot to be done about keeping an operator in the military site. Commissioner Posont stated that building numbers are lower than they were in the past and this has an affect. Mr. Dave Robinson spoke as a representative of Ms. Robyn Kay and informed attendees that he also had been her Promotional Agent. He gave a history of Ms. Kay being in the facility. He added that Ms. Kay has referred facilities to her current P.A. to secure for her as additional sites and has had no results. THE MOTION PASSED UNANIMOUSLY. Commissioners asked that there be a follow up report given at the next Commission meeting for this operator. Administrative Law Judge Recommendation ? Risa Patrick-Langtry Ms. Luzenski read the recommendation of the ALJ. Director Cannon gave background information on this case and why it was before the Commission now. Ms. Luzenski read the draft Order prepared for Commissioners. Commissioner Schuck stated that this appears to be another instance where the staff does not want to testify and, if this has not been done in a year?s time, then the operator should be awarded what she is asking for. Assistant Attorney General Warren reminded Commissioners that the record for this case is incomplete because of an action by the Administrative Law Judge, when it came before the Commission previously it was remanded back to the ALJ and, at this time, the decision needs to be affirmed based on the existing record, rejected with reasons why based on the existing record or remanded back with clear instructions to the ALJ for creating a complete record. Mr. Warren gave particular examples of information that could be asked for from the ALJ. Commissioner Scott stated that his perception of the problem in this case was that the recorder was not turned back on by the ALJ during the proceedings but a systemic problem appears to be that the Commissioners discuss a recommendation, an Order is prepared and sent to the parties involved but Commissioners do not get to see the Order. Commissioner Schuck read an excerpt from the June, 2011 Commission meeting minutes where a discussion occurred between Board members at that time remanding this case back to the ALJ. Ms. Luzenski gave a timeline clarification of when the case first came to the Commission Board, the Order which was created, the new ALJ recommendation which asked for clarification, then a new motion by the Board in June 2011. She went on to state that it appeared that a new Order was not created and forwarded to the ALJ giving a clearer explanation of what the Commission Board was seeking. Mr. Fred Wurtzel commented on how all of this has affected Ms. Patrick-Langtry economically and gave his opinion on how the Board should vote on this issue ? in favor of Ms. Patrick-Langtry. Commissioner Schuck asked to discuss what the process would be if a new hearing was requested. Ms. Luzenski asked Mr. Warren to comment on if there was a possibility to have a new hearing expedited. She also clarified that, although the case is from 2009, there were many hearing continuances and evidence hearings that delayed the case actually coming before the ALJ in November, 2010, not coming before the Board until March 2011. Mr. Warren answered MAHS will typically schedule a hearing 45 to 60 days after receiving a request. He stressed again to the Commissioners that they don?t have the evidence to make a decision to affirm, reject or modify the decision. Scott moved to remand the decision to the ALJ for the purpose of reopening the proofs of the case in order to get a complete transcript; Schuck seconded. Ms. Luzenski read the original ALJ recommendation dated December 3, 2010. Commissioner Schuck asked if Commissioners would be able to affirm the original ALJ Recommendation which had just been read. Mr. Terry Eagle, who was the representative of Ms. Patrick-Langtry at the time of the filing, spoke on her behalf stating that the many delays were because Ms. Patrick-Langtry had an illness and was receiving treatment and Chair Pilarski, at the time, directed staff to settle this case and at that time he backed off the case because of a perception of discrimination against him. He added that because of the lack of staff response to the Board motion Ms. Patrick-Langtry deserves a default judgment. There was clarification that the ALJ Recommendation made was acceptable to Ms. Patrick-Langtry. Commissioner Schuck concurred and withdrew her second. Schuck moved to affirm the final decision of the ALJ dated December 3, 2010; Scott seconded. Discussion: Ms. Luzenski read the recommended ALJ decision again. Mr. Wurtzel wanted it clarified that the Commissioners want to find in favor of Ms. Patrick-Langtry by transferring the Okemos Rest Area to her Howell vending route. Ms. Zanger asked what the Commissioners intentions were for the operator who is currently operating the Howell Rest Area vending route. Commissioner Schuck responded that the BEP staff will have to straighten out this situation with the operator who was put into the facility. She added that BEP staff needs to learn to not award facilities that are being contested. Commissioner Scott expressed concern that this creates a possible can of worms and another operator could come back and claim the Commissioners had no legal basis for passing their motion. Mr. Warren commented that Commissioner Scotts sensitivity to the issues was acute, he added that Commissioners could affirm the ALJ Recommendation if they find that all the findings of statement of fact are valid, but any modification, change or substitution creates the need to have an independent basis for the findings. THE MOTION PASSED UNANIMOUSLY Break: 11:04 Reconvene: 11:13 State Plate AG recommendation from Tom Warren Commissioner Scott asked Mr. Warren about a letter that was sent to him in February expressing concerns about the actions that were taken during a Special Commission meeting. Mr. Warren stated that he responded to concerns raised to the Director believing that the memorandum would be shared with the Commissioners. He added that he does not wish to discuss the legal advice given in a public forum, leaving the Commissioners with the decision to either have a closed session to discuss the memorandum or Mr. Warren can answer broadly to satisfy the question in a public forum. Mr. Warren went on to say that the issue which was presented to him was the propriety of changing the criteria for selecting a vendor for a particular location. He added that there was an adoption of a resolution which had some different conditions than the rules that normally applied. Mr. Warren broadly stated that the rules are the rules and the existing rules are the ones that the Commission adopted, the Commissioners have the authority to change the rules if they choose but, unless the rules are formally changed, the actions of all parties involved are guided by the rules. Commissioners asked if the memorandum had ever been forwarded to them and it was determined that it had not. There was discussion on when it was sent to the Director and the confirmation that it would be sent to the Commissioners as an attorney/client confidential memorandum as soon as possible. Commissioner Schuck asked Mr. Warren what would happen to the ALJ decisions if an Advisory Board was created. Mr. Warren did not know. Elected Operator Committee (EOC) James Chaney, EOC Chair started by clarifying that what was done with the State Plate was done with the belief that a problem was being solved. He went on to say that if what was done was against the rules the EOC would support the Board putting things back the way they were supposed to be and follow the promulgated rules. Mr. Chaney asked the Board if they were ever going to tackle the issue of Public Act 260 and the problem of immediate competition in buildings and Public Act 260 is not going away. He added that if the Board was not going to act on it then could they ask the Department of Technology Management and Budget (DTMB) to stop all the illegal actions against the vendors in State Buildings as this is an issue that is hurting the operators and affecting set asides. Lastly, he stated that the EOC has been working well with BEP staff and asked that all financial reports keep being given to the EOC. He thanked the Board for allowing him to speak and said ?hi? to Director Cannon. Commissioner Scott responded that as a former public employee his office had a coffee maker and he suggested checking with the local fire department and health department on the legality of employees having cooking equipment in offices. He went on to ask that buildings be identified which have in-house competition for the operators, brought to the attention of the Commissioners and then they can ask the Agency what is being done about the problem. Commissioner Posont stated that he believed the competition problems lie with the lack of training as with proper training the customers would not feel shorted on meeting their needs. Commissioner Schuck added that she wasn?t sure how the Commissioners could impact this issue and it may be difficult for an operator to confront someone in a building who was housing a coffee maker. Commissioner Posont said that the machines being brought into offices today are much more sophisticated and, again, the problem may lie with the needs of the customers not being met. Commissioner Schuck shared that an idea may be for Mr. Chaney and others to state the problems and come up with solutions and the Board may be willing to assist in solving the problems that way. Ms. Luzenski asked to revisit an earlier statement Commissioner Schuck had made about the BEP inventory process and it taking a long time. She went on to refer to one of the 2012 Objectives of the Director which was discussed and adopted in February stating that the inventory process would be reported on in March and June, with a target completion date of September, 2012. Commissioner Posont asked if the BEP Audit Report had been received from the Auditor General. Staff responded that it had not been received. Lunch: 11:50 Reconvene: 1:00 PUBLIC COMMENT Joe Sontag: Hello, Joe Sontag once again with a couple different things. This is a carryover from this morning, the issue of the BEP inventory management project was brought up and aside from being astounded and amazed as a business person and someone who agreed to and largely succeed in following rules and obeying laws and so forth, I cannot understand how we can be so long down the road how it can take so long to get a useful and reasonably complete inventory of the Business Enterprise Programs not inconsiderable assets. We were well on the way to accomplishing that while Mr. McEntee was working for the program. I was operating a facility at the time when John and his reader/driver showed up and proceeded to get book, chapter and verse and even taking the time to resolve the conflicting information that came up regarding the equipment that had been tagged multiple times and things of that nature. John was satisfied, he was done with my location and then, all of a sudden, after viewing other documentation that came his way he called me up late one afternoon and says ?hey Joe, are there a couple of water tanks hiding or something in your facility someplace? and I said ?now that you mention it yeah but I didn?t know if that was program stuff or ours and since it didn?t come up?, ?okay well I?m coming back over.? Sure enough it turned out to be BEP property, two 100 gallon water tanks in this building. So John?s word to me was that he thought the inventory was about 2/3 complete. I guarantee you, if it hadn?t been for the hostile climate that persuaded Mr. McEntee to leave that we wouldn?t even be discussing this today because it would be done. Possibly, who knows, what questions might have been revealed but it certainly would have been done and it would have been as complete or better than it?s ever been handled before. Shifting gears completely, I wanted to get in a word about the payment of subminimum wage to workers with disabilities in sheltered shops or the center based employment situation or whatever the current jargon is. It?s my understanding that there?s been some talk, mostly in the back channels about phasing out Section 14C of the Fair Labor Standards Act but over a 6 year period. All I?ve got to say is, number one, people with disabilities have the same basic needs as anyone else, they need to buy their basic things now. And for people to be paid less than minimum wage in this day and age, especially when the better run sheltered shops are able to pay their executives extremely well and give themselves bonuses as we observe with the New Horizons outfit here is frankly not acceptable to me. And if I had my way about it there would not even be a 3 year phase out. There?s no reason for it, the money is there and I would like to say that I hope this Board takes a strong stand against doing business with any outfit that is known to pay its workers or even a portion of its workers less than minimum wage and that we should support enabling the legislation to make that a thing of the past. Thank you. Dave Robinson: Thank you. Dave Robinson and thank you Commissioners for giving the opportunity to make public comment. I wanted to go back and talk also about the question on the inventory and that seems to be, it seems to be done quite often with this agency, that is unreasonable delay in getting things accomplished. This is just another example of what?s been done with other things. A little bit of history on the inventory situation was that back in the late 90?s it was commissioned that inventory be done and that means that anything over $300 at the time of value would get a tag with a specific inventory number on it and that was supposed to be recorded into a system that we could track within the BEP. That was commissioned and a good part of the equipment was tagged but as we proceeded through the years the promotional agents found that a lot of the equipment never did get tagged so we had a lot of discrepancies in the system. However, then the talking about the way John came in and started looking at equipment again and found out that there were still a lot of discrepancies. And you know, keeping up with an inventory system isn?t any good unless you have a good way in the system to input it into your computerized logging of equipment and where it?s at. And so that was never done. There was never a way of maintaining that system and for example, now we?ve gotten to the point where there?s nobody controlling the warehouse, nobody knows what?s in there and if it works, doesn?t work. The most recent incident was a new operator asked for a single door cooler because their 33 year old cooler finally went out and asked the PA to get them a single door cooler. The PA sent him from the BEP warehouse a single door freezer because the PA didn?t know the difference between a single door cooler and a single door freezer. And so it cost the BEP to have it delivered down there, it was the wrong equipment and had to take it back and as far as I know he?s still waiting for his cooler. That?s the kind of things that are constantly happening and happen with the BEP currently and its costing us a lot of money, costing the operators a lot of money for that to happen. And I also just wanted to say that another incident with the equipment like the demolition of a $7,000 snack machine because the PA didn?t get his paperwork in just occurred recently. There another piece of equipment that was a valuable piece of equipment is destroyed, gone, out of the program, no use to anybody else just because something didn?t get done. So I think these are issues that are critical, creates problems for the operators and even though you may not have any direct contact about that it?s things that you need to know that?s happening in this program because of the incompetency of the current management. Thank you. Marcus Simmons: I?d like to make a commendation. We had a client for MCB that needed some hearing aids and the counselor was making it extremely difficult for that person to receive hearing aids. The actions were inconsistent with the policy manual and other output from MCB. I told that client to contact Leamon Jones to see if we could get it resolved and within a couple of days the client had a new IPE with the hearing aids on it paid for by Michigan Commission for the Blind and I want to complement them on that action. Thank you. Fred Wurtzel: I want to talk a little bit about this morning?s conversation regarding illegal sales of products in buildings and one of the things that was talked about was while I don?t know if coffee was the main thing to worry about, coffee may not account for a huge percentage of sales but it counts for a large percentage of profit because coffee is one of the most profitable things in our program. So every time we lose a cup of coffee of sales we a really nice piece of profit. I know how uncomfortable it is, and someone said somehow maybe the operator can confront the people that are selling the stuff. Well, Hazell Brooks did that and she lost her license for her trouble even though she had reported numerous times and asked for assistance in resolving the issue before there was a confrontation. This doesn?t have a very good history. I personally have gone up to floors where vending machines were and took that because, first of all, you don?t want the operator confronting their own customer you want to have that staff person being an advocate for the operator. And, yes, it is uncomfortable, you?re going in and obviously somebody wants to do what they?re doing otherwise they wouldn?t be going through the trouble of having vending machines come in, they wouldn?t be going through the trouble of setting up displays of stuff. This building here and the other tower, I don?t know if it?s still going on but they were having regular hot dog sales. I had to go confront those folks about hot dog sales. They didn?t like it, I?m sorry they didn?t like it but they were given, they always say we?re giving this money to charity of some kind. That very well could be and I?m sympathetic because I raise funds for the National Federation of the Blind and I know how hard it is to raise money and I know how good it is for you to have a place where you can get some money. I?m sorry but that money doesn?t belong to them. Under the law that money belongs to the Business Enterprise Program operator who is responsible for that building. There?s only one way to do it that I know of and that is confrontation in a civil, loving, caring way to explain to people that this is the law and they need to live by this law just like they have to live by every little rule and regulation in their job. As state employees everybody understands the rules, that there are rules that you have to follow. They don?t always like it, they don?t always even follow them but never mind that, they?re still there and they still need to follow them. Their supervisor needs to tell them that it?s not permissible to go to Sam?s Club on state time and buy stuff and bring it in and sell it to other employees. They?re not supposed to stock places on state time. That?s a misappropriation of funds because you?re taking somebody?s paycheck and using it for something that it wasn?t appropriated for by the legislature. So these things are not difficult to understand, they?re uncomfortable to enforce, they?re uncomfortable to follow through on but they?re not hard to understand. So I urge you to do all you can to see that these laws are followed. Mary Wurtzel: Do you really think I could let Fred speak and not speak? This is Mary Wurtzel. You know I was just remembering that I took over a vending location in 1972 and Larry Posont and I were on the first Elected Operator Committee but you know one thing I?m thinking about in BEP and I?m not sure and I think I have some sociological ideas about why this program has always been confrontational so if you want to work in BEP just get used to the fact that somebody is going to be mad at you all the time. And I have heard that if you ask people in rehabilitation across the country that do BEP, they?ll say something like oh no anything but BEP. Now I just heard a story, it?s a terrible story. It?s about a home where there?s a therapy aversive stimuli and the children are being shocked when they have misbehaved. Now some people are claiming that this will get a positive result that is desired and we are hopefully past just punishment and I just think that there?s people who will always do things wrong and there?s people who will sometimes do things right and I?m not saying that we as consumers shouldn?t point out the things that are wrong in the program, or any program or with the Commission but, see I believe that by expecting the worst of people, that?s including the staff of the Commission for the Blind or anyone else you?re probably going to get what you expect ? the worst. As I said I don?t think anyone is perfect, but I was married to a guy that worked in the BEP for a long time and I?m not going to say who did it but one time Fred picked up the phone and someone started to swear at him for about 10 minutes, he never said a word and they hung up. So if that tells you anything about how it can be working in State government or anywhere, I mean this is a very negative period of time in our culture I think. Everybody wants to practice the blame game, somebody has to be at fault about everything. Once again, I?m not saying, we the consumer we are the watchdogs of what?s going on but also we have a future before us and this, I was there, god I can?t believe it I?m so old, I was there, as many of you know in 1978 when P.A. 260 was passed and so many of you say that nothing?s changed but in actuality some things have changed. I will stop in a second, but I just want to tell you something that has changed. When I had my vending location in Ann Arbor?s City Hall now believe it or not I was not allowed, I had a guide dog at that time, I was not allowed to have that dog in my vending location. She had to be locked in the room down the hall from me which made her get sick, which made her have to retire in about 1974 which was the last time I ever had, I didn?t have a guide dog until now. So I just want to tell you that, that has changed. Thank you very much. MaryAnn Robinson: MaryAnn Robinson. I just wanted to mention that I believe there?s been lots of progress for blind people. I?ve seen a lot of changes, I?ve seen a lot of good things. I want to see more good things, I believe we have the capacity to make lots of strides. But I?m also concerned because I?ve been coming to these meetings for probably 4 years, 3 years and I don?t expect the worst of people but I believe when people make mistakes they should try to learn from them, I believe when they make them repeatedly they should be held accountable for them. I don?t see any accountability and I see hundreds of thousands of dollars being spent on settlements on paying for equipment that was lost, replacing equipment that was lost. That money should be going to blind people in Michigan. It should be spent on services for blind people who need them. I believe lots of operators in the BEP have suffered because of the steps that current promotional agents have taken. I believe that the Director of the commission and BEP staff have not talked appropriately to building managers. They are not, they need to be told what the laws are and expected to obey them even though they work in public state buildings or in our government. They should be expected to follow the law. I don?t believe that the BEP staff has supported the operators. They haven?t had the gumption to tell the managers when they can?t allow caterings. They tend to side with the managers rather than the operators. I want to believe in justice but I?ve seen so much injustice in this program and I wonder what it?s going to take to hold these people accountable. They don?t show up to legal hearings, if again I mentioned this at another meeting, if they were working in another corporation they would have been gone 4 years ago. They are still here and mistakes are still being made. What needs to be done to make the Commission Director accountable to this Board? What needs to be done for him or this Board to make the BEP staff accountable for the continuous mistakes they are making? And I?m asking you as a Board this is a challenge to you if it takes a letter to the Governor, if it takes going to the Governor?s office and pointing out what?s being done repeatedly year after year after year then I say take those steps so the Commission for the Blind can become the Agency that we want it to be. So I say those on this Board has the power to make recommendations regarding whether people remain in their positions. We have seen so much over the past 4 years I think the Board needs to act and act decisively and make recommendations based on all the problems on all the flagrant violations of rules on all the suffering, on all the mismanagement of funds and you have the power. My challenge is to you, do something so that I don?t come back in September and say we have not, we?re still in the same place, mistakes are still occurring. Let?s have the gumption and I can think of other words but let?s do what we need to do. Let?s make the Commission for the Blind the agency that we believe it should be. It can become that way again. Please, please listen to what we say, take the steps and do something about it. Thank you. Joe Harcz: Joe Harcz, National Federation of the Blind and Michigan ADAPT. Ok several things, one we don?t need to wait to have that report from the Attorney General clearly stated that the Commission, EOC and Agency exceeded their authority relative to the vote on the February 8 place a motion rescinding that and revert to the promulgated rules. Secondly, going to what MaryAnn said, I frankly find it inexcusable that the Director had that information in front him, knew that we were violating Public Act 260 and promulgated rules and didn?t even inform the Board. Inexcusable at first instance. Going back to the public hearings. All our public hearings will be invalid upon their face if we don?t have effective communication throughout the system, including notification, and full programmatic access to the facilities in this state. That would be a violation of the public hearings policy in Title I and it?s a violation of Section 504 and it?s a violation of Title II of Americans with Disabilities Act which is gone on forever in this state. Third, and this goes to what Mr. Warren was saying this morning, the elephant in the room, the Michigan Administrative Hearings System is in substantial violation of the effective communications requirements of all legal entities which is under Tennessee v Lang Supreme Court decision in that they do not remand in a timely manner effective communications with people who are blind including Dave Robinson upon request, including Sheila Stelmach including other people. Look we are violating due process of law. Going back to the Catch 22 we go to nonfeasance and dereliction of duty, you know in not having the recording on with Risa?s case and who gets penalized, who gets penalized for years? At these substantial violations and calling it an administrative law court which is run by who, Deputy Director Zimmer. And by the way when anybody tells me that we have communications related to Executive Order 2012-2 and when our very own Commissioners didn?t even get a heads up or communications on that, let alone members of the NFB and other organizations and when I have to go and fight for piecemeal information which they throw out charges of $745,000 requesting certain information related to this process under the FOIA, so called Freedom of Information Act is just plain incredible. Fifth, going to what Lydia asked this morning, the problem with the Executive Order as it stood wasn?t again the transfer to DHS, he has that authority, but with that other existing order in eliminating the policy making and quasi-judicial role established by Public Act 260 of this Commission Board by creating this idiotic Advisory Board, you know, is a substantial reversal of Public Act 260. It guts it at its core. It eliminates the independent Commission. Sixth, on the State Plan, even if (time) Administrative Reports Director?s Report Director Cannon recapped his written report, highlighting the NCSAB conference and the impending appointment of a new RSA Commissioner, Dr. Fred Schroeder?s report and the Office of Disability Employment Policy (ODEP) Director?s speech by Kathy Martinez and referred to an article on accessible credit card charging mechanisms in taxi cabs. He also mentioned the grand re-opening at the Training Center and the mini-adjustment program that was just completed. Director Cannon updated Commissioners on the 2012 Director objectives stating they were all on target but the Newsline objective and staff is working with Newsline to complete that objective. Commissioner Scott asked Director Cannon about the possibility of MCB funding Newsline and asking why MCB can?t fund the service as many other states have the ability to fund this. Director Cannon spoke of his personal support of Newsline and that MCB did receive approval for the Commission to provide a $20,000 grant in support of Newsline. He went on to answer questions regarding funding options. Commissioner Posont gave some facts regarding Newsline and stated that there is no conflict of interest between his positions on the Commission Board and his being President of NFB-M as he doesn?t have anything to do with the monetary side of Newsline or the NFB-M. He went on to add that he believes the Board should request or demand that funding for Newsline be put into the State Plan because the money is there and available and extra money should be requested to be used for marketing. Director Cannon reminded Commissioners that MCB was the original funder for getting Newsline off the ground in the state with an Innovation and Expansion Grant and modest funding has been provided in other years, but in other years Newsline was a budget line item within the Department of Education. He added that the Public Service Commission has been approached for assistance but to no avail. Staff Reports Ms. Christine Boone, Training Center Director informed attendees that there were 150 to 200 people at the Open House, including Commissioners Posont and Schuck, staff and students. She added that students participated by being greeters and giving tours, while teachers made themselves available in each of the classrooms to talk to attendees and answer questions. Ms. Boone proclaimed the most disappointing part was the technology center not being completed. Commissioners praised Ms. Boone on the food and how the day was planned. Ms. Boone informed Commissioners that the college assessment program is beginning and will be immediately followed by the college prep program. Commissioner Schuck asked about Braille signage at the Training Center as it was not installed during the Open House. Ms. Boone shared that the Braille signage had been omitted from the construction contract without any explanation and staff has put up temporary signs from the ones used previously and are in the process of ordering the new signage and asked for patience from all while this is completed. Other staff had no additional information to add to the written report. Commissioner Schuck did ask Mr. Leamon Jones, Consumer Services Director about summer programs, specifically, Career Club and other options for her daughter for the summer. There was discussion regarding information needing to be updated on the MCB website. State Plate AG recommendation from Tom Warren Commissioner Posont asked to revisit this discussion from earlier in the day and asked for a motion to be made by Commissioners to adhere to the promulgated rules on this issue. Commissioner Schuck stated that she was fine with how the vote went when this meeting was held until public comment, when a clarification was provided that explained that one of the situations that could occur at the State Plate would result in the BEP operator paying for their own rehabilitation. Commissioner Posont stated that this problem needs to be solved because it?s such a high visibility cafeteria and this site needs to be re-opened as soon as possible. Schuck moved that the Board rescind the Board?s previous decision and follow Assistant Attorney General?s opinion on adhering to the promulgated rules in respect to filling the Business Enterprise Program Operator position at the State Plate; Scott seconded Discussion: Commissioner Scott stated his interpretation of the discussion earlier with Assistant Attorney General Tom Warren, which he believed to be that the promulgated rules needed to be followed and they weren?t. Director Cannon asked if he could supply some verbiage for the motion that would accomplish what was needed. THE MOTION WAS REMOVED. Schuck moved to rescind the Commissioners previous action to use an alternative method of operator selection at the State plate cafeteria and return to FOLLOWING the promulgated rules; Scott seconded. Discussion: There was no discussion. The Motion passed unanimously. Commissioner Schuck asked Director Cannon if there was truly no one that was qualified to run the State Plate as of March. Director Cannon clarified a couple of things including how much money was put in to renovate the facility, which has all been done at the cost of the House of Representatives and has only recently been completed. Commissioner Schuck shared that Terry Eagle submitted a bid under the old motion but would not be able to submit one with the motion just made. Director Cannon stated that with the new motion and following the promulgated rules, hopefully that would give the program a qualified operator for the location. He added that he is not going to discuss a client case at a public meeting, nor is he sure of Mr. Eagle?s status at the Commission and Commissioner Schuck would need to discuss particulars of his situation with Mr. Eagle or he would need to authorize her to discuss his case as an advocate or representative, although this has the potential to compromise her role as a Commissioner on any issues with Mr. Eagle that would come before this Board. Commissioner Posont stated a hope that resources would be utilized to make this location successful, providing the support needed for the Operator who will be running it as the reputation of blind people and the Agency is on the line. He was very emphatic about making this facility work. Commissioner Scott asked if MCB is working with the House of Representatives during the renovation to ensure that all the work is done with blind people in mind. Director Cannon answered affirmatively that the process was done in partnership and consultation with BEP staff and the House of Representatives. Break: 2:23 Reconvene: 2:27 CONSUMER ORGANIZATION REPORTS National Federation of the Blind ? Mike Powell, 1st Vice President Mr. Mike Powell, 1st Vice-President of NFB-M read a prepared statement which included expectations and quality of services from staff who administer a $25 million dollar budget, a listing of the meetings NFB members have attended since 2008 in the guise of active participation to develop legal and quality policies for the agency. He added that the organization felt that in return for all of these volunteer hours spent, blind employees have been illegally fired, BEP operators have had their licenses illegally revoked and they have been met with negativity, attempts to close meetings, denial of documents in accessible formats and an increasing level of poor services provided to Commission clients. Mr. Powell went on to state that the current Board has pushed for public meetings on the State Plan, improved and strengthened training of staff, set specific, measurable, achievable and realistic goals for the Director in the midst of an unsatisfactory evaluation, and asked for monthly updates on data. Mr. Powell commented on the appointments of the Board by the Governor and listed NFB?s expectations of the Board. He informed attendees of dates of the National NFB convention, the State NFB convention, the status of Newsline and enhancements, summer camps for 2012 and reminded the Board of the nine Resolutions that were sent to the Board in the fall. Mr. Fred Wurtzel thanked Commissioners for allowing NFB to present and stated he is proud to be an NFB member. He outlined ways the NFB advocates for blind people in the state and added that the NFB?s reason, diligence and desire is to make the world a better place for blind people. Mr. Dave Robinson thanked Commissioners for time on the agenda and spoke about the spirit of the Commission for the Blind as the NFB believes it should be giving examples of ways he felt the Agency staff blocks progress of the clients. He also spoke about BEP rules for facilities, in particular the rule of an Operator having income of 120% of minimum wage to be successful as determined by the Federal government. Mr. Robinson gave a couple of examples of facilities that did not meet the requirement and rhetorically asked where the sense of obligation and responsibility was by the staff. He went on to say that the Training Center was so successful because the spirit of blind people is present there and this is not present throughout the rest of the Agency and NFB intends to change it. Mr. Mike Powell introduced each of the Resolutions: meeting ADA requirements for signage; rights to due process at administrative hearings; Commission Board administrative support; Commission meeting minutes on the website; defective communications from the Michigan Commission for the Blind; NFB announcement on the vendor?s line; challenge experiences at the Training Center; New Horizons; and the college policy/means test. There was short discussion about most of these Resolutions. Community Rehab Organizations Commissioner Posont asked that this topic be moved to an earlier agenda spot as some staff that will be participating need to leave. He informed attendees that a resolution came before the Board at the March meeting from the Consumer Involvement Council regarding the Agency doing business with organizations paying subminimum wages to many workers. Commissioner Schuck reported that there are 66 companies in the state that pay subminimum wages to people with disabilities and the MCB has dealt with 13 of them in fiscal years 2011 and 2012. She gave an overview of the purpose of subminimum wage places, also referred to as sheltered workshops, and spoke about some prevalent attitudes in these environments. Commissioner Schuck read the list of 13 organizations that are paying subminimum wages. Schuck moved that we suspend any dealings with any of these agencies if they are still paying sub-minimum wage by the next Commission meeting, September 21, 2012; Scott seconded. Discussion: Commissioner Posont expressed puzzlement as these are all non-profit corporations who receive tax credits, are guaranteed contracts, pay less than minimum wage and receive endowments and there is no understanding of why these companies can?t pay minimum wage. Director Cannon reiterated that MCB clients placed at any of these entities are not paid below minimum wage and some of the agencies pay very well and benefit clients. Ms. Christine Boone spoke about her perspective on clients working in non-integrated work environments, and while she does not support people with disabilities making subminimum wages, she does believe that clients can benefit by being placed in these environments that provide competitive employment. She went on to add that there are times that integrated work settings can be isolating and not a good work experience, but in a sheltered workshop they are more accepted by peers who become friends and create a fuller life. Mr. Leamon Jones informed attendees that the Agency cannot take a closure on placing clients in a position paying subminimum wages as this is not considered a successful closure. He added that placing individuals in these environments allows for a true assessment of the level of function and skills of clients allowing for the opportunity to provide specific training for clients as needed. Commissioner Posont shared a story about Dr. Fred Schroeder taking over the New Mexico agency for the blind and he showed a sheltered workshop how they could go from paying subminimum wages to minimum wages for all employees. Commissioner Posont believes that if given no choice these companies would pay the minimum wage to all employees and that this is the role that the Board needs to take. Mr. Jones added that the real dilemma is that in fully integrated settings assessments, evaluations and work tryouts are not available and those are things that are achieved in these workshop environments that lead to placements in the community. Commissioner Schuck made the point that MCB would not place clients in an environment that was abusive and this equals abuse in a different manner. Director Cannon followed up on a couple comments made during the discussion including the reference made to Fred Schroeder and going on to say that the Rehab Act does not prohibit agencies from doing business with sheltered workshops. He also wanted the staff perspective of Ms. Boone and Mr. Jones heard to provide a more in depth explanation of why MCB does business with these entities. There was discussion about changing the date for the organizations to discontinue paying subminimum wages used in the motion and it was determined to leave it as stated in the motion. Director Cannon asked what the expectation would be with clients that are currently placed with these employers. The Board discussed that if these companies want to supply minimum wage or above jobs and not charge for assessments so the agency is not giving them any money than that is fine but the organizations need to change their business model of paying subminimum wages. Director Cannon cautioned Commissioners that the action they were considering taking exceeded their authority as a commission, adding that purchasing and contractual relationships with community rehab organizations was an administration function. Commissioner Schuck responded that Commissioners saw this as a policy issue. The motion passed unanimously. Michigan Council of the Blind and Visually Impaired (MCBVI) ? Joe Sibley, President Mr. Joe Sibley, President MCBVI, apologized for not being able to be at the meeting in person but he needed to attend a previously scheduled meeting with Loeks Theaters regarding MoPix and having this service provided in more theaters throughout the state. He stated that he was planning on talking about the blind organizations, gave some history about how MCBVI came about and gave specific information about the Michigan affiliates and plans for advocacy and efforts to engage a younger generation. Mr. Sibley spoke about the national convention being held in July in Louisville, Kentucky and the state convention being held in September in Lansing. Mr. Sibley gave his opinion on the different advocacy styles of ACB and NFB, including differences in approaches to rehabilitation styles and the issues. He stated that when Executive Order 2012-2 came out, MCBVI did not picket or protest but studied the issue and asked appropriate officials to sit down to talk and were welcomed to the table to voice their opinions. He went on to explain that this was the approach used to start the successful MoPix project. Mr. Sibley shared that while listening to some of the discussions that went to the Administrative Law Judge level, he believes that the parties sitting down to discuss this beforehand could have alleviated these issues reaching this level. Mr. Sibley said of course there are issues with the Agency but there are also very good staff who are providing services. He informed attendees that he is up for re-election for President of MCBVI and becoming part of one of the consumer organizations when he lost his sight was one of the best things he has ever done and there are wonderful people in both organizations. He stated that the NFB and MCBVI, while having different approaches, have worked together nationally to solve issues and he is hoping that both organizations, at a state level, can work side by side and move forward. Finally, he stated that with what is coming in the future he is cautiously optimistic that something new can be created and some of the issues tweaked. Commissioner Schuck complemented Mr. Sibley on his radio voice and asked if MCBVI produced resolutions the previous year at their convention. He answered that the resolutions created the year before dealt with national issues but this years may deal more directly with in state issues. Mr. Sibley thanked the Board for the opportunity to speak. Commissioner Posont asked to discuss how the Community Rehab Organizations will be notified of the Commission action and then said that two Commissioners can?t discuss this outside of the meeting because Mr. Warren stated that would be considered a quorum. Commissioner Scott disagreed but it was discussed that according to the policy a quorum is determined as a majority of commissioners appointed at any given time. It was determined that Commissioner Schuck would write a letter serving notice on the CRO?s of their mandate and circulate it to other board members for review. New Business Commissioner Posont stated that he would like to have discussion on some of the resolutions they heard about today, specifically on the one regarding signage. Director Cannon commented that signage is often over looked and neglected whether renovation or new construction although it is relatively inexpensive. Commissioner Posont asked that it should be basic beliefs and questioned whether businesses are built without signage anymore. Public Comment Mr. Fred Wurtzel: Thank you Mr. Chairman and thank you Commissioners for passing what I consider to be a forward looking and aggressive and realistic policy on subminimum wages. As one of the ways to publicize this I would request that you ask the Director to ask the public relations person for the Commission for the Blind to issue a press release forthwith about the motion that was made so that it would be well known to the public the position of the Michigan Commission for the Blind. Thank you. Mr. Dave Robinson: Dave Robinson, again complement the Commission on their actions today and being able to listen to us and what we had to say in regard to the issues. One of the, it is on commenting on Commissioner Posont?s comments on the accessibility, it?s really mind boggling by the State Agency that?s in charge of physical plants in our buildings, that is DTMB, does not have a specific code of standards in terms of accessibility when they?re building or remodeling facilities. It seems to me that these codes and these standards are not different than the plumbing codes and other codes that are responsible in terms for building or remodeling a facility. Such as boggles the mind that they are forgotten and certainly the State should be forward looking in terms of making sure that those kinds of accessibility issues are not forgotten and hopefully the next State ADA Coordinator, whomever that may be or is, could facilitate that to make sure that the occurrence at the Training Center never occurs again in a State building. I might also remind you that there was mention that, in order to be a full compliant public hearing the hearings that are going to be held on the state plan are going to have to be at a fully compliant accessible building. And there also has to be fully compliant information about those hearings to people, to the public and to people with disabilities. So we might want to keep that in mind when you think about making information accessible as well. So I think that it?s really important that we continue again to look at the issues and look at the specifics. Commissioner Schuck brought a comment to say if there are people having issues have them talk to the Commissioners, have them call in, have them come to the meetings and I really think we as an organization need to and continue to need to encourage blind people that is the ones really being affected by the actions of this agency to come here and express their appreciation or their discontent so that you could really know and get the flavor of true spirit of what is the Commission for the Blind here in Michigan. Thank you. Ms. Kim Walsh: My name is Kim Walsh and I?m very pleased to be here. It?s been quite a while and I?m also pleased that I am the immediate past president and still an executive officer of the International Association of Audio Information Services. We represent audio information services worldwide whether they?re radio based, internet based, phone based you name it, the technologies have changed so much in the last period of time that we have membership of all different types of distribution. Many of you know me from the Detroit Radio Information Service in Detroit today I?m wearing the IAAIS hat because I?ve just come from, last month, our convention in Houston. First off I want to applaud the consumer organizations, I?m thrilled to be at this meeting where the two main consumer organizations reported out because I do believe the most important work really does take place on Main Street, and in our own back yards and belonging to these groups is important. Some of the strides on the international level, I?ve just had the pleasure to witness some really phenomenal things and at our convention in Houston, maybe some of you have read about it maybe you have not yet read about it, but 13 years in the making I had the pleasure of being at our convention and in collaboration with the store Best Buy and their Insignia brand debuting the Narrator radio which is the first ever AM/FM HD radio fully using universal design standards that the IAAIS created in collaboration with Best Buy. Our board approved those universal design standards in November of 2008. Some of you might remember that we worked originally with the vendor Dyce, unfortunately in a national pilot project involving three radio reading services in Rochester New York, Washington D.C and Lawrence Kansas there was an awful board problem or something catastrophic with that receiver and it was not something that was easy to fix and the company was too small. So now we?ve gone back to the table and asked Best Buy hello remember when you asked us to design these standards, we won the Stevie Wonder Vision Award for at the Consumer Electronic Show in 2009, what are you going to do about this project and they said oh yeah what about that and so the reality is today the Narrator is on the market it can be bought on Best Buy?s website and Best Buy is making a big effort to get the word out about this product. And beyond just people with vision impairment and disabilities, I really think this radio has huge potential for anyone who?s elderly, has trouble with dexterity, you name it because it?s a fully accessible radio that anybody can use. So that?s very exciting. The other thing I want to just touch on is anyone who has just been around the block with radio based audio information, remembers the bicycling around with actual tapes and during my presidency we moved our entire file share to a cloud based technology and in the last year shared some 20,000 hours of programming back and forth between services for about $5 a month. So we are really proud of that new service. It?s been a service for years on a server in somebody?s office and now its not. Thank you so much, I?m grateful to be hear and hopefully I?ll be here more now that I?m not the International President. Mr. Joe Sontag: Anyway, just a couple of things. Number one I, too, would like to add my thank you to the Commission Board for taking the actions they did today, especially the action this afternoon regarding the payment of subminimum wages to people with disabilities. Actually I, not to start anything, but I hope that, let?s just say, I hope that we didn?t lose anybody listening on the phone because I just wanted to comment on one thing I heard during Joe Sibley?s presentation this afternoon, I just wanted to point out, speaking strictly from the, I think it applies well beyond myself and that is the idea the National Federation of the Blind being an angry organization. I admit personally to being a bit on the high strung side when I get passionate about something, it?s been a characteristic of mine from the time I was born, I understand. But I think what Mr. Sibley was referring to was the fact that some of us have gotten to the point where we have limited patience for folks who will not attempt to reason things out. The NFB as far as I?ve known certainly in my experience off and on for the past 25 years or so, has been the kind of organization that reasons things out and expects tight logic just as a standard approach to things. I think, I agree certainly that when problems arise the best approach is to sit down and have sincere discussions with people all around the issues so that equitable solutions can be worked out. Difficulty arises when people either play the game pretending to sit down and reason with you and have frank and honest discussions as opposed to just going through the motions so you can tell your superiors that you?ve done it and these people just aren?t cooperating. I?ve done it and I personally make no apology with us getting to the point where we decide that enough is enough and they?ll lay it on the line. And keep laying it on the line until appropriate attention is gained somewhere. I?ll just close with this, I guarantee you when blind people start realizing that long last there are people who are willing to listen with both open ears and open minds you?ll see a lot less anger regardless of who individuals are affiliated with or whether they?re not affiliated with anyone at all. Thank you. Ms. MaryAnn Robinson: I?d like to echo some things I?ve heard already. I wanted to commend the Commission Board for taking the stance regarding those 13 agencies that are still paying subminimum wage. And I work in an agency with people who have multiple disabilities and I can understand that they want to be in a setting where they feel they have friends and they feel they?re not alone, we?re not encouraging those people to leave those agencies if all of the 66 workshops began to pay minimum wage we could refer people there and they could be in those settings and if they have supervisors, managers, directors who are making thousands of dollars they ought to look at their budget and see where they can trim in the top level in management and start paying all workers minimum wage. I?d also, because of what we?ve heard about the ADA and accessibility I would like to urge that Mr. Cannon issue a directive to all program staff to look at the format that clients of the Commission are requesting and if it?s Braille, I?d like him to issue a directive insisting that his staff provide information in the format that consumers are requesting. That is something that is in the agency and the state should be doing it should be the Commission for the Blind, he has the power and authority to do that and it should have been done years ago but I?d like it to start now and he can make it start now. And I?d like the Board to follow up on that so that we can say that BEP operators, students, seniors, all clients are not receiving information in print when they request it in Braille. And the agency has the option in not working along with the Administrative Hearing system and you can?t tell me that they don?t use the email and if they don?t provide information in Braille and email they should also request that be done or they not use that system. I?ve been a therapist for a long time and I want to say that anger is an appropriate feeling when it?s expressed constructively and I, too, feel that we should start at the table and try to work out issues and that?s where good dialogue should begin and should continue as long as everybody is willing to work at the table. But as Mr. Sontag said when enough is enough its appropriate to express feelings constructively and some anger is justifiable. I mentioned things earlier today and some things that have been going on at the Commission for a long time are totally unacceptable to blind people and they need to stop now. And if the staff who?s currently there and has the power to stop those behaviors and are not willing to do it they shouldn?t be there so I suggest that the Board take a look again and if the staff doesn?t respond then they need to look at somebody who will. Thank you very much. Ms. Kim Walsh: It?s Kim Walsh again and this is just a quick point. Earlier we were talking about accessibility and everything being accessible and maybe I?m na?ve and don?t understand a State rule but for this particular meeting comments are taken by email only for a small period of time in the morning and there are a lot of empty chairs in this room and I know from having participated by the web and by phone most of the last year that there are quite a few people there and I?m wondering why that group of people isn?t, doesn?t have a roll call done, isn?t included in the attendance and can?t be patched in by phone like the two reporting, like Joe and other people during the course of the meeting as a matter of course. And I would be curious to know why that can?t happen today. Ms. Luzenski and Commissioner Schuck responded to Ms. Walsh?s comment indicating that public comment is available by email for a period of time and phone public comment is already available at each public comment. Ms. Luzenski added the capability of making public comment available to web listeners is not available at this time. Mr. Joe Harcz: First I don?t want to use up all my time in thanking you guys, but thank you especially on your reversal of the State Plate and the subminimum wage vote. On the issue of the Americans with Disabilities Act it is not a building code but a civil rights law and it ties into Section 504 in which we?re obligated to follow as well (inaudible). It?s not just a matter of alterations or new construction either, it goes into pre-ADA construction because signage is a program access issue and raised character and Braille signage is supposed to be on every permanent room of every public building. Period. End of story. Mounted at 60 inches actually now they?ve changed it to (inaudible) you can have the center line at 45 inches and it was not even in the Victor Office Building wall, not even on the Michigan Commission for Disability Concerns, not even on the men?s room. When I make a complaint then they go change it ad hoc, ladies and gentlemen you?re sitting in a building that was post ADA construction that was not compliant until I brought it up, until I made a stink. DTMB did a survey, which I believe I?ve sent to everybody, including Mr. Cannon in 2008. The point is the barriers haven?t been removed but the fundamental obligation, the fundamental obligation that goes to MCB is we are, we sign assurances with RSA every single year that we follow Section 504 and that we have complete program access and by God we have the obligation to ensure that. It also goes to the second part of the CIC motion, you know, relative to contracting with people that did not follow 504 that is already a current obligation and yet we already heard and one of the Commissioners note we contracted with Peckham, no Braille, no Braille for her kid. We, we spent MCB money for that, we already know that there are high paying jobs supplied by previous reports with the State, Secretary of State and the past board of Peckham. But they don?t make accommodations to blind people, and I know three people that have applied for those jobs and that goes to the effective communications requirement. How many times have people seen me request information from the Director and not receive a response by simple email. A failure to respond is in and of itself a violation. And look at all the brouhaha that went over draft meeting minutes and then that falls (inaudible). The Director, by the way, is (inaudible) the State of Michigan ADA Coordinator where clearly articulated responsibilities and yet, frankly ladies and gentlemen, he is one of the biggest violaters personally, personally. I?ve documented this over and over again, this also goes to our friends at MCBVI, Mr. Cannon was at the 2002 convention of which Joe Harcz was a member of MCBVI at the time which drafted a resolution, required it on our state building. Now I?ve recently joined, again rejoined NFB who are the ones fighting for this. This is our civil rights. There are no time for excuses. It goes up and down the food chain, everybody points at everybody else, the whole state is out of compliance. Adjournment SCOTT MOVED TO ADJOURN; SCHUCK SECONDED. THE MOTION PASSED UNANIMOUSLY. The meeting adjourned at 4:40 p.m. The next Commission meeting is scheduled on September 21 in Lansing. ________________________________ Mr. Larry Posont, Vice-Chair Date:?????????????????????????__________________________ Official Board Correspondence Equipment Inventory July 11, 2012 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: Michigan Commission for the Blind Commissioners And MCB Director Patrick D. Cannon c/o Sue Luzenski (via e-mail) Dear Commissioners, et al, I bring your attention to the following segment related to Equipment Inventory in the MCB Report: ?Equipment Inventory B E P is currently in the process of completing a full equipment inventory. Inventory data collected variously over the past 18 months is inconsistent to the point the equipment database cannot be properly reconciled. Consequently, the Program will enter, with departmental approval, into a contractual arrangement for the inventory to be completed by an independent contractor. As of this writing, the Program is in the process of soliciting preliminary proposals to ascertain potential cost and potential contractor interest. Also as of this writing, as the Program conducts incoming product inventories, it will also confirm the equipment inventory for that facility in preparation for the on-site contractual equipment inventory.?? Simply, how can this lack of ongoing basic accounting, let alone accountability be allowed to continue? Do we know where taxpayer funded equipment is or not? Further, isn?t this an ongoing responsibility of the Business enterprise Program staff including Administrators and Promotional Agents? Moreover, we all know these deficiencies in inventory control and management will be sited in the Michigan Auditor general?s report. Shouldn?t heads roll on these issues rather than the ?glib? response that is made over and over again saying effectively, ?We?re working on it?? In this regards is the rumor true that for lack of ?due diligence? in tracking and accounting for equipment inventory that a $7,000 snack machine was recently lost during the demolition of the Holt rest area? If true just who is accountable? I suppose there will be some hand ringing on this and other excuses and then as per usual the agency will find a way to blame the operator or people like me for pointing out the obvious. But, no blame, let alone accountability will go to any agency staff. I would like to see some real numbers here and real accounting, and fewer excuses. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: several Official Board Correspondence State Plate July 11, 2012 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: House of Reps Illegal Vote To: Michigan Commission for the Blind Commissioners Posont, Scott, and Schuck via e-mail Also: Patrick Cannon, Susan Luzenski via e-mail Dear Commissioners, I point to the following quote from the BEP Report in the most recent MCB Report: ?During the temporary closing of the House of Representatives cafeteria, much has been accomplished to the physical facility, as noted in the March report. The operator selection process commenced as recommended by the Committee and as approved by the Board. However, based on informal guidance from the Assistant Attorney General with whom M C B works, the process has been halted. The informal guidance cautions M C B about the use of an alternate, even if temporary, bidding process and the guidance is currently under review. ? Now, I and several others including terry Eagle and David Robinson informed the Board, the agency and the EOC that the abrogation of promulgated rules exceeded the legal authority of the MCB Board, the EOC, and the agency. Now, we?ve plowed untold monies into the House of Reps facility and it is still not occupied by a blind person mandated by Public Act 260. This is clearly outrageous but can be resolved simply at the July 15, 2012 meeting by a simple motion and vote to rescind the vote of February 8, 2012. Then we simply must demand the agency follows existing rules relative to that mandated facility. Respectfully, Paul Joseph Harcz, Jr. Cc: several -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 7 20:20:50 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 7 Jul 2012 16:20:50 -0400 Subject: [Vendorsmi] mcb failed these indicators again Message-ID: >From State Plan: Indicator 1.1: Number of Individuals with Employment Outcomes. The Bureau of Services for Blind Persons projection for the number of individuals with employment outcomes that was set by the agency was not achieved compared with the national average of blind agencies. BSBP is focusing on specific training from TACE and other agencies to assist the staff with innovative approaches to redefine its efforts to increase employment outcomes. Michigan?s unemployment rate is among the highest in the nation, which directly affects employment opportunities for all citizens including those with disabilities in obtaining gainful employment. The agency?s strategic plan emphasizes the need to be aware of employment opportunities and employment trends as the agency collaborates with Michigan Works! in identifying Michigan?s 50 Top Hot Jobs so that consumers will receive training in emerging careers. As BSBP continues to receive labor market information through its collaboration with DTMB Regional economic analyst Bureau of Labor Market Information that provides employment trends locally and statewide, this will enable the agency to provide training appropriate to the current labor market demands. Staff will work with a variety of employers to increase on-the-job training opportunities for job-ready consumers. BSBP has initiated job clubs in major cities throughout the state for the purpose of assisting job ready consumers in their efforts to obtain employment. BSBP provides Employment Readiness Seminars quarterly for all job ready consumers. The seminars provides local employers opportunities to interview job ready consumers and shares information regarding work incentives for employers and benefits planning for consumers, formerly known as Work Incentive Planning and Assistance (WIPA). BSBP encourages consumers to utilize Disability Benefits 101 website, educating parents on work related benefits and strategies early on. BSBP will continue to work with the National Business Network, trade organizations and apprenticeship programs through its Business Services system to expand employment opportunities for the population that BSBP serves. Indicator 1.2: Percentage of Individuals Receiving Services Who Had Employment Outcomes. BSBP was not successful in achieving this indicator. The State of Michigan unemployment rate is still among the highest in the nation. This high unemployment rate directly affected the employment outcomes for the BSBP consumers. BSBP has several new staff that are in various stages of the initial training for first year counselors. The time period for new staff to be productive is generally one to two years. However, BSBP continues to invest in appropriate training for staff in job placement and other related training to attempt to minimize the effects of the depressed labor market. BSBP makes available to counseling staff the opportunity to participate in job placement training through the Michigan Rehabilitation Counseling Educators Association and the Job Placement Division of the Michigan Rehabilitation Association, along with private trainers emphasizing job placement techniques as well as TACE Supported Employment programs that equip the staff with tools to compete in the competitive labor market. BSBP has job placement specialists in each region to assist counselors in securing appropriate job placement for consumers. These positions have expanded BSBP?s infrastructure to heighten its ability to work more effectively with employers and other community agencies to increase employment options. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sun Jul 8 13:21:00 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sun, 8 Jul 2012 09:21:00 -0400 Subject: [Vendorsmi] Fw: from vr regs not done statewide Message-ID: ----- Original Message ----- From: joe harcz Comcast To: nfbmi-talk at nfbnet.org Sent: Sunday, July 08, 2012 9:18 AM Subject: from vr regs not done statewide (e) Appropriate modes of communication. The State unit must provide to the public, through appropriate modes of communication, notices of the public meetings, any materials furnished prior to or during the public meetings, and the policies and procedures governing the provision of vocational rehabilitation services under the State plan. (Authority: Sections 101(a)(16)(A) and 105(c)(3) of the Act; 29 U.S.C. 721(a)(16)(A), and 725(c)(3)) -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Tue Jul 10 16:55:34 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 10 Jul 2012 12:55:34 -0400 Subject: [Vendorsmi] Fw: FOIA Response to Request Dated 6-20-12 - BEP Inventory Message-ID: <2DA05EC2CD404EB3AE52BA01AC687426@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Haynes, Carla (LARA) Sent: Tuesday, July 10, 2012 12:53 PM Subject: Re: FOIA Response to Request Dated 6-20-12 - BEP Inventory I'm sure the Michigan Auditor General will be interested in this as will RSA. Thank you. Paul Joseph Harcz, Jr. ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Duell, Elsie (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) Sent: Tuesday, July 10, 2012 11:38 AM Subject: FOIA Response to Request Dated 6-20-12 - BEP Inventory July 10, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is in response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is partially granted and partially denied as to existing, nonexempt records in the possession of this department responsive to your request. As to the granted portion 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 40 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 FOIA - P.J. Harcz, Jr. July 10, 2012 Page 2 of 2 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 $1,204.80. 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 good faith deposit of $592.40, which is one-half of the total estimated $1,204.80, minus a $20.00 credit 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 5000 documents contained within the Business Enterprise Program Tracking System. This includes an individual screen (document) for each piece of equipment plus screens (documents) for information on the transfer of this equipment. Each record has to be accessed individually which involves multiple keystrokes to accomplish. As to the denial portion of your request, to the best of my knowledge, information or belief, no spreadsheets exist relative to your request and we are not required to make a compilation, summary, or report of information per the state's FOIA, MCL 15.233, Section 3(4). Under MCL 15.240 of the FOIA you may (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs: Attention, Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and state the reason(s) for reversal of the denial(s); or (2) you may seek judicial review in circuit court within 180 days of the Department's final determination. If you prevail in such action, the court shall award reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 40 times Hourly Rate: $25.10 = Amount: $1,004.00 Examining and Extracting Cost: Number of Hours: 8 times Hourly Rate: $25.10 = Amount: $200.80 TOTAL LABOR: $1,204.80 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $1,204.80 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) ($20.00) INVOICE TOTAL: $1,184.80 DEPOSIT* $592.40 BALANCE TO BE PAID: $592.40 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Tue Jul 10 16:57:49 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 10 Jul 2012 12:57:49 -0400 Subject: [Vendorsmi] Fw: FOIA Response to Request Dated 6-20-12 - BEP Inventory Message-ID: <34A8F0F6C7A04739AC78C2F2FB453170@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: elamb at audgen.michigan.gov Sent: Tuesday, July 10, 2012 12:54 PM Subject: Fw: FOIA Response to Request Dated 6-20-12 - BEP Inventory ----- Original Message ----- From: joe harcz Comcast To: Haynes, Carla (LARA) Sent: Tuesday, July 10, 2012 12:53 PM Subject: Re: FOIA Response to Request Dated 6-20-12 - BEP Inventory I'm sure the Michigan Auditor General will be interested in this as will RSA. Thank you. Paul Joseph Harcz, Jr. ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Duell, Elsie (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) Sent: Tuesday, July 10, 2012 11:38 AM Subject: FOIA Response to Request Dated 6-20-12 - BEP Inventory July 10, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is in response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is partially granted and partially denied as to existing, nonexempt records in the possession of this department responsive to your request. As to the granted portion 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 40 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 FOIA - P.J. Harcz, Jr. July 10, 2012 Page 2 of 2 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 $1,204.80. 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 good faith deposit of $592.40, which is one-half of the total estimated $1,204.80, minus a $20.00 credit 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 5000 documents contained within the Business Enterprise Program Tracking System. This includes an individual screen (document) for each piece of equipment plus screens (documents) for information on the transfer of this equipment. Each record has to be accessed individually which involves multiple keystrokes to accomplish. As to the denial portion of your request, to the best of my knowledge, information or belief, no spreadsheets exist relative to your request and we are not required to make a compilation, summary, or report of information per the state's FOIA, MCL 15.233, Section 3(4). Under MCL 15.240 of the FOIA you may (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs: Attention, Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and state the reason(s) for reversal of the denial(s); or (2) you may seek judicial review in circuit court within 180 days of the Department's final determination. If you prevail in such action, the court shall award reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 40 times Hourly Rate: $25.10 = Amount: $1,004.00 Examining and Extracting Cost: Number of Hours: 8 times Hourly Rate: $25.10 = Amount: $200.80 TOTAL LABOR: $1,204.80 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $1,204.80 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) ($20.00) INVOICE TOTAL: $1,184.80 DEPOSIT* $592.40 BALANCE TO BE PAID: $592.40 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 11 11:21:39 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 11 Jul 2012 07:21:39 -0400 Subject: [Vendorsmi] hearings violate this! important Message-ID: Joe - I am not sure how accessible the 12-02 RSA Technical Assistance Circular is, so I included specific text about public hearings for the State Plan below... http://www2.ed.gov/policy/speced/guid/rsa/tac/2012/tac-12-02.pdf Whenever possible or appropriate, state agencies should exploit both traditional and non-traditional media to advertise up-coming public hearings and solicit input from the community. Websites, social media, phone trees, and other forms of raising awareness, apart from traditional media such as radio, newspaper and television, should be employed to the maximun extent possible and appropriate, and in accordance with the requirements of the regulations governing public hearings found at 34 CFR 361.20. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 11 11:31:23 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 11 Jul 2012 07:31:23 -0400 Subject: [Vendorsmi] hearings violate this! important References: Message-ID: <2581B4DCB4404989B70902B63D8D1201@YOUR7C60552B9E> My God Luke! RSA is viiolating Sections 504 and 508 itself with this document for it is an image based scanned document! I went to the link and Jaws told me in its accessability features this was a scanned image! This is the same issue I face with the Office for Civil Rights at Ed. The very enforcement agencies violate the vvery laws they are to enforce! How did you make this portion accessable? Anyway thanks again. Peace with Justice, Joe ----- Original Message ----- From: joe harcz Comcast To: nfbmi-talk at nfbnet.org Cc: Vendorsmi at nfbnet.org Sent: Wednesday, July 11, 2012 7:21 AM Subject: [Vendorsmi] hearings violate this! important Joe - I am not sure how accessible the 12-02 RSA Technical Assistance Circular is, so I included specific text about public hearings for the State Plan below... http://www2.ed.gov/policy/speced/guid/rsa/tac/2012/tac-12-02.pdf Whenever possible or appropriate, state agencies should exploit both traditional and non-traditional media to advertise up-coming public hearings and solicit input from the community. Websites, social media, phone trees, and other forms of raising awareness, apart from traditional media such as radio, newspaper and television, should be employed to the maximun extent possible and appropriate, and in accordance with the requirements of the regulations governing public hearings found at 34 CFR 361.20. ------------------------------------------------------------------------------ _______________________________________________ Vendorsmi mailing list Vendorsmi at nfbnet.org http://nfbnet.org/mailman/listinfo/vendorsmi_nfbnet.org To unsubscribe, change your list options or get your account info for Vendorsmi: http://nfbnet.org/mailman/options/vendorsmi_nfbnet.org/joeharcz%40comcast.net -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 11 15:38:34 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 11 Jul 2012 11:38:34 -0400 Subject: [Vendorsmi] Fw: illegal and inaccessable public hearings Message-ID: <2A3BC1ACE5B048D2BC560071E89EEFEA@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Richard Bernstein Esq Cc: MARK CODY ; OCR Cleveland Office ; Sally Conway USDOJ ; Robin Jones ; Peter Berg ; Elmer Cerano MPAS ; valarie Barnum Yarger MISILC ; Craig McManus RSA ; Egan, Paul ; Mike Zelley TDN ; Susan Fitzmaurice ; Luke Zelley TDN ; Kathy McGeathy ; nfbmi-talk at nfbnet.org ; Patrick Cannon MCB Dir. ; zimmerm at michigan.gov ; Jaye Porter MRS Director ; Carol Dobak ; lydia Schuck MCB Comm. ; John Scott MCB Comm. ; Larry Posont MCB Comm. Sent: Wednesday, July 11, 2012 11:37 AM Subject: illegal and inaccessable public hearings All, This building houses daily Michigan Rehabilitation Services and Michigan Commission for the Blind Offices. Program access to such facilities was required as of January 26, 1992. Yet they are not compliant to this day. Moreover, this facility is required to have raised character and Braille signage on every permanent room including room numbers (ADAAG 3.40.1, 4, 5, 6). It does not. Moreover all Vocational Rehabilitation Agencies are required to hold public hearings in accessible facilities. Both the Michigan Commission for the Blind and the Michigan Rehabilitation Services are holding public hearings this very week on its so-called, and highly illegal state plan in this very inaccessible building. The ADA is a civil rights law. We people with disabilities have the right to access our government facilities! It is incredible at the amount of documentation I?ve given over the last decade on these issues without any compliance! Sincerely, Joe HarczNational Federation of the Blind ADAPT Woman sues state, says Detroit office building hinders handicapped | The Detroit News | July 11, 2012 at 1:00 am Woman sues state, says Detroit office building hinders handicapped List of 3 items ? By Robert Snell ? The Detroit News ? 0Comments list end Detroit? A Farmington Hills woman sued the state in federal court Tuesday, alleging workers with disabilities are denied equal access to a state office building in Detroit. Michigan Economic Development Corp. employee Jill Babcock said wheelchair ramps are too steep outside the Cadillac Place building on West Grand Boulevard, and the facility lacks available handicap parking. The building, which formerly served as General Motors Corp. headquarters, was renovated in 2002 but failed to comply with the Americans with Disabilities Act, according to the lawsuit. Babcock wants to force the state to comply with the disabilities act. rsnell at detnews.com (313) 222-2028 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 12 10:46:07 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 12 Jul 2012 06:46:07 -0400 Subject: [Vendorsmi] some state plan comments Message-ID: <68CCED4D955143409EFB77C5E5D88FD8@YOUR7C60552B9E> July 12 2012 Comments relative to public hearings MCB and MRS Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. MT. Morris, MI 48458 joeharcz at comcast.net To Several including RSA All: There are requirements for adequate notice and accessability of required public hearings relative to major revisions of VR State Plans. This was not done. There was no ?adequate notice? of public hearings on either the Michigan Commission for the Blind State Plan or that of Michigan Rehabilitation Services. In fact members of the MCB Board did not get timely notice. And members of the Michigan Rehab Council got worse. There were no conventional media notices in any newspaper or radio let alone the varieties of media in advance recommended here. In short both were shams. Dog and pony shows. Moreover, MOST of these meetings were held in facilities that did not meet even Americans with Disabilities Act or Section 504 basics for program access, and effective communications, thus continuing to violate the civil rights of consumers and advocates with disabilities; the very people both MRS and MCB are to serve with this federally funded sham of a program here! For the reasons mentioned above these public hearings are invalid upon their face. I protest them and urge RSA to withold all funding and not to approve either state plans until they actually follow this and, indeed all aspects of the Rehabilitation Act of 1973 as amended. (See this from: Technical Assistance Circular RSA-TAC-12-02 DATE: February 21, 2012) ?Public Hearings and Substantive Changes? As required by Section 101(a)(16)(A) of the Rehabilitation Act and 34 CFR 361.10(d) of the implementing regulations, prior to the adoption of any substantive policies or procedures (or any substantive amendment to such policies and procedures) governing the provision of VR or SE services under the State Plan or the supplement, the VR agency must conduct public meetings throughout the state, after giving adequate notice of the meetings, to provide the public, including individuals with disabilities, an opportunity to comment on the policies and procedures contained in the proposed FY 2013 State Plan. The VR agency also must actively consult with the director of the Client Assistance Program and, as appropriate, with Indian tribes, tribal organizations, and Native Hawaiian organizations, when adopting new policies or amending current policies. Substantive changes to VR and SE program service policies and procedures, as distinguished from those that are typically considered administrative in nature, are those that directly impact the nature and scope of the services provided to individuals with disabilities, or the manner in which individuals interact with the VR agency, particularly as it pertains to communication with the VR counselor or the delivery of VR services. Examples of substantive changes include, but are not limited to: ? any changes to policies or procedures that fundamentally alter the rights and responsibilities of VR consumers in the VR process; ? proposed organizational changes to the VR agency that will likely effect the manner in which services are delivered; ? any changes that affect the nature and scope of VR services provided; ? changes in formal or informal dispute procedures; ? the adoption or amendment of policies instituting an order of selection; and ? changes to the VR consumer financial participation policies. Examples of administrative changes that would not necessarily generate the need for public hearings include, but are not limited to: ? internal procedures that do not directly impact individuals receiving VR services, such as payment processing, or personnel procedures; ? changes to the case management system that only impact VR staff; ? administrative changes in the relationship with the designated state agency, such as indirect cost allocations, internal fiscal review procedures, or routine reporting requirements; ? changes to RSA?s routine reporting requirements; ? minor revisions to VR procedures or policies to fix production errors such as typos and grammatical mistakes; and ? changes to contract procedures that do not impact VR service delivery. Consultation with Stakeholders and Substantive Changes Section 101(a)(16)(B) states that VR agencies, ?shall take into account, in connection with matters of general policy arising in the administration of the plan, the views of? a variety of stakeholders of the VR and SE programs, including individuals and groups of individuals who receive VR services, as well as their representatives if appropriate; personnel from organizations that provide VR services; providers of VR services; the director of the Client Assistance Program; and the SRC. RSA considers changes in the general administration of the State Plan within the meaning of Section 101(a)(16)(B) to include, but are not limited to: ? any change in policies and procedures requiring the conduct of a public hearing in accordance with Section 101(a)(16)(A); ? any changes that necessitate amending the approved State Plan in accordance with the Rehabilitation Act, implementing regulations and RSA procedures; ? the development of new goals and priorities for the VR agency under the State Plan; ? the manner in which the order of selection is implemented; ? the inclusion of new or additional information in the State Plan as a result of the completion of the comprehensive statewide needs assessment in accordance with the requirements of 34 CFR 361.15; and ? changes in personnel or staffing described in the State Plan that may significantly impact the delivery of VR services. VR agencies may find public hearings to be an effective and efficient method of notifying stakeholders of such changes and obtaining their input, as required by Section 101(a)(16)(B). In circumstances in which there is uncertainty with respect to whether a change in the VR program is substantive and hence requires a public hearing or outreach to stakeholders, RSA strongly encourages VR agencies to err on the side of conducting public hearings and forums to maximize awareness of the VR program and promote transparency of the agency?s policies and procedures. Additionally, VR agencies should utilize as many avenues for disseminating information regarding changes to the VR program and to maximize participation by community stakeholders in public hearings. Whenever possible or appropriate, state agencies should exploit both traditional and non-traditional media to advertise up-coming public hearings and solicit input from the community. Websites, social media, phone trees, and other forms of raising awareness, apart from traditional media such as radio, newspapers, and television, should be employed to the maximum extent possible and appropriate, and in accordance with the requirements of the regulations governing public hearings found at 34 CFR 361.20. Sincerely, Paul Joseph Harcz, Jr. Cc: National Federation of the Blind Cc: ADAPT Cc: SILC Cc: MCB Commissioners Cc: MCB Cc: MRC and MRC Members Cc: Office of Civil rights (ED.) Cc: Michigan Protection and Advocacy Services (including CAP() Cc: several media outlets -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 12 16:55:26 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 12 Jul 2012 12:55:26 -0400 Subject: [Vendorsmi] lara doesn't meet any of this! Message-ID: <8AD9D195A532466CB202B663C0E8361B@YOUR7C60552B9E> UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES REHABILITATION SERVICES ADMINISTRATION WASHINGTON, D.C. 20202-2800 TECHNICAL ASSISTANCE CIRCULAR RSA-TAC-12-03 DATE: April 16, 2012 ADDRESSEES: STATE VOCATIONAL REHABILITATION AGENCIES STATE REHABILITATION COUNCILS TECHNICAL ASSISTANCE & CONTINUING EDUCATION CENTERS AMERICAN INDIAN VOCATIONAL REHABILITATION PROGRAMS CLIENT ASSISTANCE PROGRAMS CONSUMER ADVOCACY ORGANIZATIONS SUBJECT: Organizational Structure and Non-Delegable Responsibilities of the Designated State Unit for the Vocational Rehabilitation Program PURPOSE: Through this technical assistance circular (TAC), the Rehabilitation Services Administration (RSA) provides guidance on the federal requirements governing the organizational structure of, and the non-delegable responsibilities to be performed by, the designated State unit (DSU) for the vocational rehabilitation (VR) program, authorized under Title I, Part B, of the Rehabilitation Act of 1973, as amended (Rehabilitation Act). RSA has determined that clarification of the relevant statutory and regulatory provisions is needed in light of inquiries from VR agencies and the results of its recent monitoring activities. The guidance contained in this TAC covers each of the federal requirements and further explains: ? the meaning of the term ?other rehabilitation? for the purpose of satisfying the organizational requirements for the DSU within the designated State agency (DSA); ? the calculation used to determine the percentage of DSU staff required to perform the vocational or other rehabilitation work of the DSU; ? factors to consider when determining if the DSU is located at a level comparable to other major components of the DSA; and ? additional factors related to the assessment of the DSU?s ability to perform its non-delegable responsibilities. This TAC retires prior guidance issued through RSA-PI-75-31, RSA Policy Statement on Interpretation of State VR Organizational Requirements of the Rehabilitation Act as amended, June 3, 1975; RSA-PI-77-26, RSA Policy Statement of Interpretation of State VR Organizational Requirements of the Rehabilitation Act, as amended July 26, 1977 (addendum to RSA-75-31); and RSA-PD-96-02, Special Education Programs as "Other Rehabilitation" for Purposes of the Application of the Provisions of Sections 101(a)(1)(B)(i) and (2)(A)(i) of the Rehabilitation Act of 1973, as amended, November 7, 1995. These prior issuances contained outdated citations, described regulations that are no longer in effect, or included information that is restated in explanatory guidance to current regulations. However, any still valid statements of policy found in these older issuances are incorporated in this TAC. FEDERAL REQUIREMENTS: Since 1920, when the VR program was first authorized under the Smith-Fess Act, federal requirements governing the organizational requirements for the VR program have changed significantly. The Smith-Fess Act required that the VR program be administered by State Boards of Vocational Education. The 1954 amendments to the Vocational Rehabilitation Act (VR Act), the authorizing federal legislation for the VR program at that time, created another organizational structure option for States in administering the VR program. Specifically, those amendments permitted the VR program to be administered by a state agency that was primarily concerned with VR and other rehabilitation. In other words, an independent state agency could be established to administer the VR program and other programs for individuals with disabilities. The 1965 Amendments to the VR Act contained the last significant change in the statutory provisions related to the state administration and organization of the VR program. In response to a perceived need for greater flexibility at the state level, the 1965 Amendments also allowed the VR program to be administered by a state agency that contained at least two other units administering a program of education, health, welfare, or labor. Congress clearly intended to achieve a balance between state flexibility in the administration of the VR program, while at the same time preserving the integrity and autonomy of the program by imposing the organizational unit requirements described below, which were subsequently incorporated into the Rehabilitation Act and have been maintained since that time. Section 101(a)(2)(A) of the Rehabilitation Act and its implementing regulations at 34 CFR 361.13(a) require that the VR State Plan shall designate a state agency as the sole state agency to administer the plan. The state agency designated to administer the VR State Plan must be either: 1) a state agency primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities; or 2) a state agency that includes a VR bureau, division or other organizational unit (Section 101(a)(2)(B) of the Rehabilitation Act and 34 CFR 361.13(a)). If the state agency contains a VR bureau, division or other organizational unit, Section 101(a)(2)(B)(ii) of the Rehabilitation Act and 34 CFR 361.13(b) require that the VR bureau, division or VR organizational unit must: ? be primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities, and be responsible for the VR program of the DSA; ? be administered by a full-time director; ? employ staff on the rehabilitation work of the organizational unit all or substantially all of whom devote their full time to such work; and ? be located at an organizational level and have an organizational status within the DSA comparable to that of other major organizational units of the DSA. In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). TECHNICAL ASSISTANCE: Although RSA can best determine whether a state is complying with the organizational requirements for the DSU and DSA through the conduct of monitoring (Final Regulations 62 Fed. Reg. 6308, 6316 (February 11, 1997)), it is important that state officials and personnel responsible for the administration of the VR program understand each federal requirement to ensure that the state has in fact created the proper organizational structure that enables the DSU to exercise its non-delegable responsibilities for the VR program. Therefore, in an effort to assist States outside of the monitoring process, this TAC first provides guidance on each of the organizational requirements and then addresses the non-delegable responsibilities of the DSU. Administration of the VR Program and ?Other Rehabilitation? The DSA or the DSU, in those States where there is a DSU, must be primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities (Section 101(a)(2)(B) of the Rehabilitation Act and 34 CFR 361.13(a)(1) and (b)(1)(i)). According to these requirements, the primary function of the DSA or the DSU, if one exists, must be the delivery of VR or VR and other rehabilitation services to individuals with disabilities. Although the statute and regulations permit the DSA or the DSU to administer programs other than the VR program that assist with the rehabilitation of individuals with disabilities, the relevant provisions themselves neither define nor describe the meaning of the term ?other rehabilitation.? However, the preamble to the 1997 final VR program regulations clarifies that ?other rehabilitation? ?includes, but is not limited to, other programs that provide medical, psychological, educational, or social services to individuals with disabilities? (Final Regulations 62 Fed. Reg. 6308, 6316 (February 11, 1997)). The preamble to the Notice of Proposed Rulemaking (NPRM) for these final regulations also contains examples of programs or services that constitute ?other rehabilitation,? including independent living services, programs for individuals with developmental disabilities, services for individuals who are deaf or hearing-impaired, services for individuals who are blind or visually impaired, Social Security disability determinations, or another type of program related to individuals with disabilities (NPRM 60 Fed. Reg. 64476, 64481 (December 15, 1995)). In light of this regulatory guidance, the determination whether programs located within, or services provided by, the DSU constitute ?other rehabilitation? for purposes of the VR organizational requirements is dependent on the provision of services or supports provided by those other programs to individuals with disabilities, as well as the linkage between those services and supports and the VR program. For instance, a DSU may be located within a DSA that provides human services. Although the concept of ?other rehabilitation? is very broad as described above, not all human services can be considered to come within its scope. For example, the provision of medical, psychiatric, or social services to individuals with developmental disabilities, mental illness, or with alcohol and drug addictions would fall within the scope of ?other rehabilitation? because the primary purpose of those services is to benefit individuals with disabilities. On the other hand, the provision of other types of human services, such as those for the aging, child welfare, child care licensing, and crisis/emergency response would not fall within the scope of ?other rehabilitation? for purposes of the VR organizational requirements because the primary focus of each of these programs is not the provision of VR or other rehabilitation services to individuals with disabilities. The fact that these programs may, on occasion, benefit individuals with disabilities, does not alter the fact that the primary focus of these programs is to benefit a wider population. Consequently, the DSU must determine the primary purpose of the other programs that fall within its purview to ascertain if those programs constitute ?other rehabilitation? within the meaning of VR organizational requirements. Only then can the DSU ensure that substantially all of its staff are engaged in the provision of VR or other rehabilitation services, despite the inclusion of these other human service programs under its purview. As explained further below, an understanding of whether the scope of the programming administered by the DSA or DSU, if one exists, indicates that it is primarily responsible for the provision of VR and other rehabilitation services is critical for determining if all, or substantially all, of the DSU?s staff are employed full-time on the VR and other rehabilitation work of the unit. Full-Time Director Section 101(a)(2)(B)(ii)(II) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(ii) require that the DSU, if one has been established within a larger DSA, employ a full-time director. Pursuant to this requirement, the DSU director must devote his or her full time to the work of the DSU, which would include the VR program and any other program under the purview of the DSU. While the director is not required to devote his or her full time to the VR component of the DSU?s work, title I funds must be used only to support the work of the director as it relates to the VR program. Although this statutory and regulatory provision is as important to the proper organizational structure and administration of the VR program, its language is clear and RSA has received no inquiries or encountered any issues of non-compliance during the monitoring process with respect to its implementation. Thus, no further explanation or guidance concerning this specific requirement is warranted at this time. Staff Performing VR or Other Rehabilitation Work The DSU, where one exists, must have ?a staff employed on the rehabilitation work of the organizational unit all or substantially all of whom are employed full time on such work? (Section 101(a)(2)(B)(ii)(III) of the Rehabilitation Act). VR program regulations clarify the meaning of ?substantially all? by requiring that the DSU have ?a staff, at least 90 percent of whom are employed full time on the rehabilitation work of the organizational unit? (34 CFR 361.13(b)(1)(iii)). The Rehabilitation Act recognizes the state?s flexibility regarding the manner in which it organizes the DSU and allows for the centralization of its administrative functions. Nonetheless, it remains consistent and clear that the DSA and the DSU, if one exists in the state, must be primarily concerned with the VR or VR and other rehabilitation needs of individuals with disabilities. Although the work of the DSU can encompass activities that extend beyond VR and other rehabilitation, the Rehabilitation Act and the VR implementing regulations prescribe that "all or substantially all staff" ? e.g., 90 percent -- of the DSU must devote their full time to the rehabilitation work of the unit, i.e., VR or vocational and other rehabilitation. This intention is further supported by guidance contained in the preamble to the 1995 NPRM, which reads as follows: This requirement means that if the organizational unit provides other rehabilitation services, in addition to vocational rehabilitation, the 90 percent staffing requirement applies to all unit staff providing rehabilitation services, not to just the vocational rehabilitation staff (NPRM 60 Fed. Reg. 64476, 64481 (December 15, 1995)). In other words, no more than ten percent of the DSU staff can devote any portion of their time to other programs and activities carried out by the DSU that do not constitute VR or other rehabilitation, as described above. To determine that the DSU employs a staff at least 90 percent of whom are working full-time on the rehabilitation work of the unit, RSA considers the entire DSU, as defined by the state in the VR State Plan, and all of its activities. RSA then determines which of those activities constitute the VR and other rehabilitation of individuals with disabilities. Once this determination is made, RSA then takes into account the total staff employed by the DSU and the manner in which they are apportioned to each of the DSU?s activities to determine the percentage that work full-time on the rehabilitation work of the DSU, as opposed to the percentage that are engaged, full- or part-time, on the non-rehabilitation work, if any, of the DSU. The Federal requirement refers to 90 percent of the staff, not 90 percent of the staff?s work hours, that must be devoted to the performance of matters related to VR or the other rehabilitation work of the DSU. This distinction is important when considering DSU staff who expend any time working on the provision of services or activities that do not constitute VR or other rehabilitation, such as universal and core service activities within Workforce Centers. The DSU must maintain careful time distribution records for any staff, again no more than ten percent, who spend any time working on matters that are not related to the VR or other rehabilitation work of the DSU. These time records are essential to ensure that this requirement is satisfied, as well as compliance with cost allocation requirements under the federal cost principles found at 2 CFR Part 225. For example, a DSU?s staff may be co-located in the state?s one-stop centers and it may meet its cost sharing obligations, in part, by paying for a proportionate share of the reception services provided by one-stop staff, or by assigning DSU staff to perform reception duties while again ensuring that the time of these staff is properly allocated to the VR program. Because the receptionists in the one-stop centers perform ?universal? activities for all individuals served by the centers, not only individuals with disabilities, they cannot be considered to be engaged in the provision of VR or other rehabilitation services. Therefore, if the DSU chooses to assign its staff to assist with the reception duties at the one-stop centers, it must be careful that the number of staff assigned to these or other such duties, even on a part-time basis do not exceed ten percent of its total staff. Furthermore, RSA recognizes that staffing of a state agency is a dynamic process in which the number of staff or full-time equivalent (FTE) positions can change on a frequent basis. In an environment where funding may be limited, it is not uncommon for hiring freezes and budget concerns to result in vacant FTE positions that may not be filled or that may be eliminated. Consequently, when reviewing a DSU?s compliance with this requirement, RSA only considers staff who are actively employed at a specific point during the review and does not consider vacant positions or FTEs assigned to the DSU, as those positions are not actively contributing to the provision of VR or other rehabilitation services within the DSU. The language of Section 101(a)(2)(B)(ii)(III) and the regulations at 34 CFR 361.13(b)(1)(iii) supports this approach through the use of such words as ?staff? and ?employed.? Additionally, when discussing this requirement, the preambles to both the 1995 NPRM (60 Fed. Reg. 64475, 64481(December 15, 1995)) and the 1997 Final Regulations (62 Fed. Reg. 6307, 6316 (February 11, 1997)) refer to ?all unit staff providing rehabilitation services? (emphasis added). Therefore, when making the determination that a DSU is in compliance with the requirement that 90 percent of its staff work full-time on VR or other rehabilitation activities, only staff actually employed by the unit will be taken into consideration. Finally, some DSUs include within their structures community rehabilitation programs (CRP) that employ both staff who provide rehabilitation services to individuals with disabilities and staff who engage solely in the production and manufacturing activities of the CRP. When determining whether substantially all of the DSU?s staff are engaged full-time in the provision of VR and other rehabilitation services, only those individuals employed within the CRP who provide rehabilitation services are considered to be performing VR or other rehabilitation activities, and not those individuals engaged in its production work. Organizational Level and Status of the DSU Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv) require that the DSU, where one exists, must be ?located at an organizational level and [have] an organizational status within the designated State agency comparable to that of other major organizational units of the designated State agency.? This particular requirement has remained unchanged since its inclusion in the 1965 amendments to the VR Act and, along with the other requirements discussed above, affirms a cardinal principle concerning the organization of the VR program ? that the VR program is an integral categorical program, not to be merged with other organizations of state government. The requirement that the DSU be located at a level and have a status comparable to that of the other major units of the DSA, in effect, places constraints upon the alternatives available to the State in designating an agency to administer the VR program. As clearly articulated in the Congressional Oversight Hearings of November 30 and December 10, 1973, the objective of these constraints is to prevent the submersion of the VR program within the structure of the DSA, which could reduce the program?s scope and effectiveness. The requirements have been consistently interpreted to mean that the VR unit must have clear, direct supervision of VR staff with regard to program policy, operations, and related program matters. When evaluating whether the DSU is at a comparable level to other major organizational units within the DSA, it has been the long-standing policy of RSA that such an evaluation will take into consideration such factors as: ? the directness of the reporting line from the VR director to the head of the DSA; ? the title, status, and grade of the VR director, as com?pared with those of the heads of other organizational units within the DSA; ? the extent to which the VR director can determine the scope and policies of the VR program; and ? the kind and degree of authority delegated to the director of the DSU for the administration of the VR program. Each of these factors should be considered when determining if the DSU is located at a level comparable to other major units of the DSA, and not submerged within the organizational structure of the DSA to such an extent that the DSU director is limited in his or her ability to have input into legislative and other matters affecting the VR program in a manner that is more restricted than that of other directors of comparable programs. However, with respect to the consideration of the title, status, and pay grade of the DSU director, RSA has not historically been involved in providing direction to the states regarding personnel matters, except as they relate to the requirements for a comprehensive system of personnel development. Absent a functional impact, differences in title, status and pay grade between the DSU director and other directors in the DSA may not raise concerns in connection with the federal requirements at Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv). On the other hand, if such differences reflect a devaluation of the DSU, this factor should be considered, along with the others mentioned herein, to determine the state?s compliance with the federal organizational requirements for the DSU and the ability of the DSU to carry out the non-delegable responsibilities specified in 34 CFR 361.13(c). Ideally the DSU director reports directly to the head of the DSA. However, given the complexity of some state government structures, the head of the DSA may find it necessary to require that the DSU director report to a deputy within his or her office instead. Such an organizational structure is permissible within the requirements of Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv), so long as the DSU director and the directors of the other major components are treated similarly. Under such arrangements, the deputy within the DSA?s office typically functions as a conduit of information and facilitator of communication between the DSU director and the head of the DSA, as well as with the heads of the other major units. Unlike the above-described organizational structure, some state government structures include a level of organization outside the head of the DSA?s office that incorporates the DSU within its own structure, thus creating an additional organizational layer between the head of the DSA and the DSU. While additional organizational layers between the DSA and the DSU may be permissible, their presence can complicate the determination of the proper placement of the DSU. When evaluating this intervening organizational level in light of the factors listed above, especially that of the directness of communication between the head of the DSA and the DSU director, RSA considers the role of the head of the intervening organization in terms of the administration of the VR and other programs located within the intervening level. Specifically, RSA considers whether this individual?s role interferes with the DSU director?s ability to perform the non-delegable functions listed at 34 CFR 361.13(c). For example, RSA will examine the involvement of the head of the intervening organization in decisions related to legislative, budget, strategic planning, policy development, and the allocation of resources (including staff) of the VR program, particularly as compared to the involvement of the heads of intervening levels in matters administered by the directors of other major components within the DSA. Under circumstances where the DSU director does not provide input on such matters directly to the head of the DSA, but rather does so through the head of the intervening organization, RSA will consider whether the input provided by the VR director is marginalized prior to being transmitted to the head of the DSA. The marginalization of such input could have a negative affect on the ability of the DSU director to carry out the non-delegable responsibilities for the VR program set forth at 34 CFR 361.13(c). In summary, RSA considers many factors when analyzing whether the DSU is located at a level comparable to other major components within the DSA. Except for the factor pertaining to the VR director?s ability to carry out the non-delegable functions required by 34 CFR 361.13(c), none of these factors are dispositive on their own. Instead, they all work together to help RSA determine whether the organizational structure established by the state meets the spirit and intent of the federal requirements. Non-Delegable Responsibilities As stated earlier in this TAC, Section 101(a)(2)(B)(ii)(I) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(i) require that the DSU be responsible for the administration of the VR program. The statute does not describe the nature and scope of this responsibility or how it is to be carried out by the DSU. However, the VR program implementing regulations, found at 34 CFR 361.13(c)(1), require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). These ?non-delegable? functions relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services; ? the determination that individuals have achieved employment outcomes; ? policy formulation and implementation; ? allocation and expenditure of VR funds; and ? participation in the One-Stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662. RSA has long interpreted these provisions to require that the specified functions and activities be carried out by the DSU?s own staff (NPRM, 60 Fed. Reg. 64475, 64482 (December 15, 1995) and Final Regulations, 62 Fed. Reg. 6307, 6316 (February 11, 1997)). In addition, the VR unit must have clear and direct supervision over VR program staff with regard to program policy, operations, and related program matters. The non-delegation provisions are intended to, ?[strengthen] the role of the State unit by requiring that the unit have a substantial role in all decisions affecting the administration of the VR program whenever management functions within the State agency are centralized? (60 Fed. Reg. at 64482). Retaining these non-delegable functions within the DSU: Ensure[s] that State agencies that consolidate staff to administer multiple State and federally funded programs do not entrust these key VR programmatic decisions to individuals who lack experience in meeting the needs of individuals with disabilities?[T]he benefits derived from DSU retention of these functions ? enhanced program efficiency and effectiveness ? outweigh any costs that may be associated with the non-delegation requirements in the final regulations (62 Fed. Reg. at 6316). When certain functions, such as human resource development or financial management, are placed at the DSA or departmental level, it is important to assess the manner in which the DSU exercises a strong voice or provides effective input into the policy, planning, operations or similar program decisions made in these areas. While certain purely administrative functions may be performed by personnel outside the DSU, centralization of functions on the state agency level is impermissible if it results in interference with the decision-making capacity of the administrator of the DSU to direct the VR program in the state, given that the DSU has been designated as the entity responsible for administering the VR program under the VR State plan (34 CFR 361.13(b)(1)(i)). The following program management activities are among those that typically are carried out by an organization that is responsible for the day-to-day operational administration of a public VR program: ? development of legislative proposals and regulations regarding VR program funding and services; ? program planning and evaluation; ? personnel management; ? implementation and use of management information systems; and ? fiscal and statistical reporting. When centralization of these or other functions occurs, questions may arise as to whether the DSU has retained an effective voice in the making of key policy decisions to ensure that the DSU has sufficient responsibility for the administration of the VR program, as required by 34 CFR 361.13(c). In making judgments about the nature and degree of DSU involvement in these activities for the purpose of assessing compliance with the non-delegable functions, RSA recognizes that the Rehabilitation Act provides considerable flexibility to the state in the administration of the VR program and that the responsibility for the administration of the state Plan rests with the DSA in accordance with 34 CFR 361.13(a). However, the DSU is responsible for the administration of the VR program under the State Plan (34 361.13(b)(1)(i)), and for the operation of the VR service delivery system (34 CFR 361.13(c)(1)(i)). In assessing the nature and extent of the DSU's authority in carrying out its responsibility to administer the VR program, RSA will determine whether the DSU director indeed has the authority to administer the VR program and, if so, the extent of that authority, i.e., if it affords the DSU adequate input with respect to the administration of the centralized functions. RSA will review the degree of authority and involvement of all of the DSU?s functions taken together, and not with respect to one or more of the functions alone. Regarding the allocation and expenditure of VR funds (an area where questions concerning the DSU?s authority are more likely to arise), RSA will determine whether the DSU has responsibility for the approval of expenditures, the development and approval of contracts, budgeting for the program, development of the cost allocation plan and the procurement process. As the head of the DSU, the entity solely responsible for the expenditure and allocation of VR funds pursuant to 34 CFR 361.13(c)(1)(iv), the DSU director must be privy to all financial information about the VR program, not just informed of such information by the DSA, and should be in direct control of the decisions affecting the VR program. Decisions regarding staffing levels, priority setting, and the awarding of contracts fall within the scope of the expenditure and allocation of VR funds. Therefore, decisions related to these matters require the DSU to determine where to spend its resources for the benefit of the program and to meet the needs of individuals with disabilities within the state. As such, these decisions must ultimately be made by the DSU. For example, while the DSA may centralize contracting processing, decisions involving whether to contract for a service, the amount to be contracted, and the service to be procured, must be retained by the DSU since those decisions pertain to the allocation and expenditure of VR funds and the provision of VR services, both of which are non-delegable functions of the DSU (34 CFR 361.13(c)(1)(i) and (iv)). In addition, the director and staff of the DSU must have sufficient information regarding the fiscal resources available for use in the VR program, especially in those states where the DSA has centralized the payment and fiscal reporting processes for the entire agency. Because the DSU is solely responsible for the allocation and expenditure of VR funds pursuant to 34 CFR 361.13(c)(1)(iv), the DSU remains responsible for ensuring the accuracy of financial reports and the satisfaction of all fiscal requirements, including match and maintenance of effort. Furthermore, the DSU must have sufficient information about the financial resources available to the VR program in order to avoid the inadvertent and unnecessary reallotment of funds, or, most significantly, the return of funds to the U. S. Treasury -- actions that could occur if the DSU does not maintain control over the expenditure and allocation of VR funds. Finally, the VR program regulations at 34 CFR 361.23 and Section 121(c) of WIA, along with WIA implementing regulations at 20 CFR 662.300, require that a memorandum of understanding governing operations of the One-Stop service delivery system in a local area be developed and executed between the Local Workforce Investment Board and the One-Stop service delivery system partners. Because the DSU is solely responsible for its role as a partner in the one-stop system (34 CFR 361.13(c)(1)(v)), it must negotiate its own contracts with the other one-stop partners. This responsibility may not be delegated to another individual or agency, including the DSA (34 CFR 361.13(c)(2)). SUMMARY: The federal requirements governing the organization of the VR program provide considerable flexibility to the states in recognition of the wide variety and complex nature of the programs and services within their purview, while establishing a framework in which VR services are delivered through an autonomous and distinct unit. This framework enables the officials and personnel of the DSU to conduct those non-delegable functions critical to the administration and operation of the VR program. It is these persons who possess the knowledge and experience necessary to make decisions regarding the effective and efficient use of VR program resources to address the unique needs of individuals with disabilities as they engage in the pursuit of quality employment. CITATIONS: Rehabilitation Act of 1973, as amended, Section 101(a)(2) Vocational Rehabilitation Program Regulations, 34 CFR 361.13 INQUIRIES: Carol Dobak, Chief Vocational Rehabilitation Program Unit (202) 245-7325 Carol.Dobak at ed.gov Edward Anthony, Ph.D. Deputy Commissioner cc: Council of State Administrators of Vocational Rehabilitation National Council of State Agencies for the Blind National Disability Rights Network -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Thu Jul 12 22:54:50 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 12 Jul 2012 18:54:50 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <2AE2F44D6C5A4871B18A82611F7E12DF@YOUR7C60552B9E> ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: Amended Response of 7-12-12 to 6-20-12 Request.doc Type: application/msword Size: 89600 bytes Desc: not available URL: From joeharcz at comcast.net Thu Jul 12 23:03:56 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Thu, 12 Jul 2012 19:03:56 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <12E5AF5DBF64400089B88B43F3981428@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Haynes, Carla (LARA) Sent: Thursday, July 12, 2012 6:58 PM Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Does this still mean that the Michigan Commission for the Blind cannot readily reconcile its Business Enterprise Equipment purchased with federal Vocational Rehabilitation funds? In short does this mean that MCB and the program simply can't account for where the taxpayer's stuff is? Sincerely, Paul Joseph Harcz, Jr. cc: RSA cc: Michigan Auditor General's office cc: several media outlets cc: NFB ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Fri Jul 13 18:16:15 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Fri, 13 Jul 2012 14:16:15 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <08B79FA9C8E24B4781EB506DF0A518A0@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Haynes, Carla (LARA) Sent: Friday, July 13, 2012 2:14 PM Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Official Board Correspondence Equipment Inventory July 11, 2012 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: Michigan Commission for the Blind Commissioners And MCB Director Patrick D. Cannon c/o Sue Luzenski (via e-mail) Dear Commissioners, et al, I bring your attention to the following segment related to Equipment Inventory in the MCB Report: "Equipment Inventory B E P is currently in the process of completing a full equipment inventory. Inventory data collected variously over the past 18 months is inconsistent to the point the equipment database cannot be properly reconciled. Consequently, the Program will enter, with departmental approval, into a contractual arrangement for the inventory to be completed by an independent contractor. As of this writing, the Program is in the process of soliciting preliminary proposals to ascertain potential cost and potential contractor interest. Also as of this writing, as the Program conducts incoming product inventories, it will also confirm the equipment inventory for that facility in preparation for the on-site contractual equipment inventory. " Simply, how can this lack of ongoing and accounting, let alone accountability be allowed to continue? Do we know where taxpayer funded equipment is or not? Further, isn't this an ongoing responsibility of the Business enterprise Program staff including Administrators and Promotional Agents? Moreover, we all know these deficiencies in inventory control and management will be sited in the Michigan Auditor general's report. Shouldn't heads roll on these issues rather than the "glib" response that is made over and over again saying effectively, "We're working on it?" In this regards is the rumor true that for lack of "due diligence" in tracking and accounting for equipment inventory that a $7,000 snack machine was recently lost during the demolition of the Holt rest area? If true just who is accountable? I suppose there will be some hand ringing on this and other excuses and then as per usual the agency will find a way to blame the operator or people like me for pointing out the obvious. But, no blame, let alone accountability will go to any agency staff. I would like to see some real numbers here and real accounting, and fewer excuses. Sincerely, Paul Joseph Harcz, Jr. Cc: several ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Fri Jul 13 20:34:49 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Fri, 13 Jul 2012 16:34:49 -0400 Subject: [Vendorsmi] Fw: comments state plan mcb Message-ID: ----- Original Message ----- From: joe harcz Comcast To: gastond at michigan.gov Cc: Craig McManus RSA ; Carol Dobak ; nfbmi-talk at nfbnet.org ; Fredric Schroeder (by way of David Andrews) ; president.nfb.mi at gmail.com ; lydia Schuck MCB Comm. ; John Scott MCB Comm. ; Sally Conway USDOJ ; OCR Cleveland Office ; Richard Bernstein Esq ; Melanie Brunson ACB ; Joe Sibley MCBVI Pres. ; MARK CODY ; Patrick Cannon MCB Dir. ; Elmer Cerano MPAS ; Charis Austin ; valarie Barnum Yarger MISILC ; Luke Zelley TDN ; Susan Fitzmaurice ; Mike Zelley TDN ; Jim Magyar AA CIL ; zimmerm at michigan.gov ; Eve Hill USDOJ Sent: Friday, July 13, 2012 4:33 PM Subject: comments state plan mcb July 13, 2012 Comments MCB State Plan Effective Communications Paul Joseph Harcz, Jr. To: D. Gaston State Plan comments I am writing today to comment on the following segment of MCB?s proposed state plan: ?Personnel to Address Individual Communication Needs Describe how the designated state unit has personnel or obtains the services of other individuals who are able to communicate in the native language of Applicants or eligible individuals who have limited English speaking ability or in appropriate modes of communication with applicants or eligible individuals. All consumers of BSBP are entitled to receive materials in their preferred format whenever possible. Typical options are Braille, large print, CD, email, or audiotape. The bureau continues the practice of putting all brochures, as well as other documents like the Annual Report, on the BSBP website. This makes all materials accessible to anyone with a computer. Currently, there is one person in the bureau?s deaf/blind unit who is able to communicate in sign language. There is also at least one person at the BSBP Training Center who is able to communicate by sign. When needed, the agency is able to make arrangements for an interpreter or translator to facilitate communication. This occasionally becomes an issue in southeast Michigan due to the large number of Arabic speaking individuals. ? What can I say on this? The Rehabilitation Act of 1973 both in Title I and in Section 504 (auxiliary aids and services) and The Americans with Disabilities Act, title II, subpart e, communications requires timely and effective delivery of information in the most effective format of the individual for not only clients of MCB, but also employees, MCB commissioners who are blind and indeed members of the public including myself who are blind. This is the Commission for the Blind isn?t it? Yet, over the past decade I?ve documented literally thousands of instances where Director Cannon and other staff of MCB have violated this for myself and others including by the way this very day July 13, 2012 and including issues of effective communications regarding these very public hearings! Customers of MCB get little or nothing including even their own IPEs in accessible format even upon request. Ditto for business enterprise operators. Moreover, Tyler v. Manhattan requires that such an agency act affirmatively in the remittance of accessible visually delivered information and not on an ad hoc basis, but this agency again in and with copious documentation does not remit it upon request! Shoot potential customers don?t even get return phone calls in a timely manner, some for literally years let alone all information in their most effective format. Because the agency Director and all staff have been notified of these obligations by me and others they thus act with deliberate indifference to these civil rights laws against the entire class of blind people in this state. In fact I?ve demonstrated that especially in the case of the Director that these willful acts of discrimination are done with malice of forethought and thus are a chronic pattern and practice of wilful discrimination which is cause for damages., By the way the failure to affirmatively remit all information to customers or applicants violates the Title I ?informed choice provisions in the ffirst instance for no one who is blind can have ?informed choice? without accessable information! Thus in breif we have an agency for the blind that discriminates en masse against the blind! And it shows that the assurances sent to RSA and other agencies of government are lies; despicable and hidious lies! Contentions including in the State Plan that they do so when they do not are violations of the False Statements Act whenever they report them to RSA. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: NFB Cc: MRC Cc: MPAS Cc: OCR Cc: USDOJ Cc: Patrick D. Cannon Cc: ACB, MCBVI Cc: Richard Bernstein, Esq. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 14:49:07 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 10:49:07 -0400 Subject: [Vendorsmi] Fw: here's where eo 2012-10 screwed up Message-ID: <1CA27C27FB224764B79C7167E71030E2@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: nfbmi-talk at nfbnet.org Sent: Saturday, July 14, 2012 10:48 AM Subject: Fw: here's where eo 2012-10 screwed up The EO 2012-10 to reiterate violates the Executive Reorginization Act...I don't have the act cite but this is where this segment comes from referenced in what Terry sent. Thus the Governor violated the very Act that authorizes Type I, II, and III transfers itself and which has been deamed Constitutional, but, again which he has violated. So I think we could get a stay on this basis alone!!! ----- Original Message ----- From: joe harcz Comcast To: terry Eagle Cc: nfbmi-talk at nfbnet.org Sent: Saturday, July 14, 2012 10:40 AM Subject: here's where eo 2012-10 screwed up EO 2012-1o explicately annulls PA 260 which is a statute and it is explicately a Type II transfer. Yet the analysis you sent and I've pointed to for Type 2 transfers is here: " (b) Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, transferred to that principal department. " Ipso facto they can't use a Type II transfer to wipe out PA 260. Note the EO 2012-10 did disolve the MI Disability Concerns period, but did that as a Type III transfer. So this is one area where we can enjoin the EO 2012-10 even on this modest technicality. In other words Governor et al....Better get back to the drawing board. Joe Harcz -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 15:20:12 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 11:20:12 -0400 Subject: [Vendorsmi] importance extremely high! Message-ID: This is the act and the violation of law in Executive Order 2012-10...It stateeexplicately what can be done under a Type II transfer. And one of the things that cannot be done is eliminating a statute including PA 260, the act that creates the Michigan Commission for the Blind, and prescribes its rolls and duties. Again this is the Act that EO 2012-10 violates! Joe Harcz EXECUTIVE ORGANIZATION ACT OF 1965 (EXCERPT) Act 380 of 1965 CHAPTER 1 GENERAL PROVISIONS 16.101 Short title. Sec. 1. This act shall be known and may be cited as the ?Executive organization act of 1965.? History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.102 Head of department defined. Sec. 2. Whenever the term ?head of the department? is used it shall mean the head of one of the principal departments created by this act. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.103 Types of transfers; continuation of agencies not enumerated. Sec. 3. (a) Under this act, a type I transfer means the transferring intact of an existing department, board, commission or agency to a principal department established by this act. When any board, commission, or other agency is transferred to a principal department under a type I transfer, that board, commission or agency shall be administered under the supervision of that principal department. Any board, commission or other agency granted a type I transfer shall exercise its prescribed statutory powers, duties and functions of rule-making, licensing and registration including the prescription of rules, rates, regulations and standards, and adjudication independently of the head of the department. Under a type I transfer all budgeting, procurement and related management functions of any transferred board, agency or commission shall be performed under the direction and supervision of the head of the principal department. (b) Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, transferred to that principal department. (c) Under this act, a type III transfer means the abolishing of an existing department, board, commission, or agency and all its statutory authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, are transferred to that principal department as specified under this act. (d) Any department, board, commission, or agency not enumerated within this act, but established by law within a department, board, commission or agency shall continue within the department, board, commission or agency within which it had previously been established, and shall continue to exercise all its powers, duties and functions within the principal department established by this act. History: 1965, Act 380, Imd. Eff. July 23, 1965. Transfer of powers: See MCL 16.732. Popular name: Act 380 16.104 Principal departments. Sec. 4. Except as otherwise provided by this act, or the state constitution, all executive and administrative powers, duties, and functions, excepting those of the legislature and the judiciary, previously vested by law in the several state departments, commissions, boards, officers, bureaus, divisions, or other agencies are vested Table with 3 columns and 3 rowsin the following principal departments: (1) Department of State (2) Department of Attorney General (3) Department of Treasury (4) Department of Management and Budget (5) Department of State Police (6) Department of Military Affairs (7) Department of Agriculture (8) Department of Civil Service (9) Department of Commerce Rendered Tuesday, July 03, 2012 Page 1 Michigan Compiled Laws Complete Through PA 177 and includes 179-191 of 2012 ? Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov Table end(10) Department of Natural Resources (11) Department of Corrections (12) Department of Education (13) Department of Licensing and Regulation (14) If section 28 of article 5 of the state constitution of 1963 is amended to provide for changing the name of the state highway department to the department of transportation. However, until section 28 of article 5 is amended in the manner described in this section, the name of the department shall be the Department of State Highways and Transportation. (15) Department of Labor (16) Department of Mental Health (17) Department of Public Health (18) Department of Social Services (19) Department of Civil Rights History: 1965, Act 380, Imd. Eff. July 23, 1965;?Am. 1968, Act 353, Eff. Nov. 15, 1968;?Am. 1973, Act 127, Imd. Eff. Aug. 22, 1973;?Am. 1978, Act 483, Imd. Eff. Dec. 1, 1978. Popular name: Act 380 16.105 Principal department with commission head; delegation of powers and duties. Sec. 5. When a principal department is headed by a commission, it may delegate such duties, powers and authority to the director of the department as it deems necessary to fulfill the duties and obligations of the commission. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.106 Deputy department heads; powers and duties. Sec. 6. Deputy department heads shall perform such duties and exercise such powers as the head of the principal department may prescribe. Except when the head of a department is a commission, deputy department heads shall act for, and exercise the powers of, the head of the principal department during his absence or disability. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.107 Internal organization of principal departments; executive allocation and reallocation of duties and functions; limitations; transfer of type II or type III agencies; administration; rules. Sec. 7. (a) Except as provided by law or within this act, the head of each principal department with the approval of the governor is authorized to establish the internal organization of his department and allocate and reallocate duties and functions to promote economic and efficient administration and operation of the department. No substantive function vested by law in any officer or agency within the principal department shall be removed from the jurisdiction of such officer or agency under the provisions of this section. (b) Except as provided by law or within this act, when any department, commission or board or other agency is transferred by a type II or type III transfer to a principal department under the provisions of this act, the functions of the department, commission or board or other agency shall be administered under the direction and supervision of the head of the principal department. When a department, commission, board or other agency is transferred by a type II or type III transfer to a principal department all prescribed statutory functions of rule making, licensing and registration including the prescription of rules, regulations, standards and adjudications shall be transferred to the head of the principal department into which the department, commission, board or agency has been incorporated. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.108 Compensation; heads of principal departments; directors; commissions; boards; exclusive employment. Sec. 8. (a) Heads of principal departments, commissions or boards, principal executive officers of departments, commissions and boards shall receive compensation prescribed by law. (b) Directors of departments, commissions, boards and directors of departments, boards and commissions transferred to a principal department shall not engage in any business, vocation or employment other than their office. Members of boards and commissions may so engage unless specifically prohibited by law. Table with 3 columns and 3 rowsRendered Tuesday, July 03, 2012 Page 2 Michigan Compiled Laws Complete Through PA 177 and includes 179-191 of 2012 ? Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov Table endHistory: 1965, Act 380, Imd. Eff. July 23, 1965;?Am. 1965, Act 407, Imd. Eff. Oct. 29, 1965. Popular name: Act 380 16.109 Rules and regulations; promulgation. Sec. 9. The head of each principal department, and those commissions, boards and agencies granted a type I transfer may promulgate such rules and regulations as may be necessary to carry out the functions now or hereafter vested in them in accordance with the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.80 of the Compiled Laws of 1948, and subject to Act No. 197 of the Public Acts of 1952, as amended, being sections 24.101 to 24.110 of the Compiled Laws of 1948. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 Administrative rules: R 400.5106 of the Michigan Administrative Code. 16.110 Powers and duties of governor continued. Sec. 10. All powers, duties and functions vested in the office of governor are continued, except as otherwise provided by this act. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.111 Special commissions. Sec. 11. Special commissions created under Act No. 195 of the Public Acts of 1931, being sections 10.51 to 10.57 of the Compiled Laws of 1948, are units of the executive office of governor. History: 1965, Act 380, Imd. Eff. July 23, 1965. Popular name: Act 380 16.112 Repealed. 1984, Act 431, Eff. Mar. 29, 1985. Compiler's note: The repealed section pertained to the executive budget. Popular name: Act 380 16.113 Department of economic expansion; transfer to executive office of governor; personnel. Sec. 13. The powers, duties and functions of the department of economic expansion, created by Act No. 116 of the Public Acts of 1963, enumerated in section 125.1204 (h), (i) and (j) of the Compiled Laws of 1948, as amended, are transferred to the executive office of the governor. The personnel of the department of commerce necessary to implement this section are transferred to the executive office of the governor. History: Add. 1967, Ex. Sess., Act 11, Eff. Mar. 22, 1968. Popular name: Act 380 Table with 3 columns and 3 rowsRendered Tuesday, July 03, 2012 Page 3 Michigan Compiled Laws Complete Through PA 177 and includes 179-191 of 2012 ? Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov Table end -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 16:26:06 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 12:26:06 -0400 Subject: [Vendorsmi] here's the law broken Message-ID: <88D37BB04EC3432480A9C6C29CFC8C5C@YOUR7C60552B9E> EXECUTIVE ORGANIZATION ACT OF 1965 (EXCERPT) Popular name: Act 380 16.103 Types of transfers; continuation of agencies not enumerated. Sec. 3. (a) Under this act? (b) Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and and procurement, transferred to that principal department. -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 16:31:19 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 12:31:19 -0400 Subject: [Vendorsmi] this makes it more clear statuatory violations Message-ID: EXECUTIVE ORGANIZATION ACT OF 1965 (EXCERPT) Popular name: Act 380 16.103 Types of transfers; continuation of agencies not enumerated. Sec. 3. (a) Under this act? (b) Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and and procurement, transferred to that principal department. Now we see the multiple violations of this act in this executive order: RICK SNYDER GOVERNOR [image: coat of arms of the state of Michigan] STATE OF MICHIGAN EXECUTIVE OFFICE LANSING BRIAN CALLEY LT, GOVERNOR EXECUTIVE ORDER No. 2012- 10 DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS DEPARTMENT OF HUMAN SERVICES DEPARTMENT OF CIVIL RIGHTS BUREAU OF SERVICES FOR BLIND PERSONS COMMISSION FOR THE BLIND COMMISSION FOR BLIND PERSONS MICHIGAN REHABILITATION COUNCIL MICHIGAN COUNCIL FOR REHABILITATION SERVICES DISABILITY CONCERNS COMMISSION RESCISSION OF EXECUTIVE ORDER 2007-48 EXECUTIVE REORGANIZATION WHEREAS, Section 1 of Article V of the Michigan Constitution of 1963 vests the executive power in the Governor; and WHEREAS, Section 2 of Article V of the Michigan Constitution of 1963 empowers the Governor to make changes in the organization of the Executive Branch or in the assignment of functions among its units that the Governor considers necessary for efficient administration; and WHEREAS, Section 8 of Article V of the Michigan Constitution of 1963 provides that each principal department shall be under the supervision of the Governor, unless otherwise provided by the Constitution; and WHEREAS, there is a continued need to reorganize functions among state departments to ensure efficient administration; and NOW, THEREFORE, I, Richard D. Snyder, Governor of the state of Michigan, by virtue of the powers and authority vested in the Governor by the Michigan Constitution of 1963 and Michigan law, order the following: I. BUREAU OF SERVICES FOR BLIND PERSONS A. The Bureau of Services for Blind Persons is created as a Type II Agency within the Department of Licensing and Regulatory Affairs. The Department of Licensing and Regulatory Affairs shall serve as a Designated State Agency under the GEORGE W.ROMNEY BUILDING ? 111 SOUTH CAPITOL AVENUE ? LANSING, MICHIGAN 48909 www.michigan.gov Rehabilitation Act of 1973, as amended, 29 USC 701 et seq. The Bureau of Services for Blind Persons shall serve as the State Licensing Agency under the Randolph? Sheppard vending facilities for blind in federal buildings act, 20 U.S.C. 107 to 107f. B. All authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds of the Commission for the Blind are transferred from the Commission for the Blind to the Bureau of Services for Blind Persons, including but not limited to the following: 1. The Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to 393.369. 2. Section ?a of the Michigan Historical Commission Act, 1913 PA 271, MCL 399.1 to 399.10. 3. Section 2 of the Limited Access Highways Act, 1941 PA 205, MCL 252.51 to 252.64. 4. Section 208 of the Michigan Museum Act, 1990 PA 325, MCL 399.301 to MCL 399.510. 5. Section 4 of the Business Opportunity Act for Persons with Disabilities, 1988 PA 112, MCL450.791 to MCL450.795. C. Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement of the Director of the Commission for the Blind are transferred to the Director of the Department of Licensing and Regulatory Affairs. D. Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds of the Commission for the Blind granted by 1999 AC, R 393.16(f), 393.34 and 393.56 are transferred to the Director of the Department of Licensing and Regulatory Affairs. E. Any authority, powers, duties and functions relative to final agency decisions for cases arising under the Randolph-Sheppard Act, 20 U.S.C. 107 to 107f, the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 U.S.C. 732, and the Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to MCL 393.369, are transferred from the Commission for the Blind to the Director of the Department of Licensing and Regulatory Affairs. II. COMMISSION FOR BLIND PERSONS A The Commission for Blind Persons ("Commission") is created as an advisory commission within the Department of Licensing and Regulatory Affairs. 2 B. The Commission shall consist of seven members appointed by, and serving at the pleasure of, the Governor. Four of the members shall be blind persons. C. The Commission members shall have a particular interest or expertise in the concerns of the blind community. D. The Governor shall designate a member of the Commission to serve as its Chairperson. The Chairperson shall serve at the pleasure of the Governor. E. The Director of the Department of Licensing and Regulatory Affairs shall perform all budgeting, procurement, and related management functions of the Commission. F. The Commission shall do the following: 1. Study and review the needs of the blind community in this state. 2. Advise the Department of Licensing and Regulatory Affairs concerning the coordination and administration of state programs serving the blind community. 3. Recommend changes in state programs, statutes, and policies that affect the blind community to the Department of Licensing and Regulatory Affairs. 4. Secure appropriate recognition of the accomplishments and contributions of blind residents of this state. 5. Monitor, evaluate, investigate, and advocate programs for the betterment of blind residents of this state. 6. Advise the Governor and the Director of the Department of Licensing and Regulatory Affairs, of the nature, magnitude, and priorities of the challenges of blind persons in this state. 7. Advise the Governor and the Director of the Department of Licensing and Regulatory Affairs on this state's policies concerning blind individuals. Ill. MICHIGAN REHABILITATION SERVICES Michigan Rehabilitation Services is transferred by a Type II transfer from the Department of Licensing and Regulatory Affairs to the Department of Human Services. The Department of Human Services shall serve as a Designated State Agency under the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq. Any authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement,of Michigan Rehabilitation Services, are transferred from the Department of Licensing and Regulatory Affairs to the Department of Human Services. 3 IV. IMPLEMENTATION OF TRANSFERS A. Any authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, used, held, employed, available, or to be made available to the Department of Licensing and Regulatory Affairs for the activities, powers, duties, functions, and responsibilities transferred by this Order are transferred to the receiving department. B. The director of the department receiving the transfer, after consultation with the Director of the Department of Licensing and Regulatory Affairs, shall provide executive direction and supervision for the implementation of the transfers. The assigned functions shall be administered under the direction and supervision of the director of the receiving department. C. The directors of the departments impacted by this Order shall immediately initiate coordination to facilitate the transfers and shall develop a memorandum of record identifying any pending settlements, issues of compliance with applicable federal and state laws and regulations, or other obligations to be resolved. D. The directors of the departments impacted by this Order shall administer the functions transferred in such ways as to promote efficient administration and shall make internal organizational changes as may be administratively necessary to complete the realignment of responsibilities under this Order. V. CREATION OF MICHIGAN COUNCIL FOR REHABILITATION SERVICES A. The Michigan Council for Rehabilitation Services ("Council") is established within the Department of Human Services. The Council shall serve as a single state rehabilitation council pursuant to 29 USC 721(a)(21)(B) for the Department of Human Services, Michigan Rehabilitation Services and the Department of Licensing and Regulatory Affairs, Bureau of Services for Blind Persons.' B. The Council shall include the following seventeen (17) voting members: 1. The following members shall be appointed by the Governor, after soliciting recommendations from representatives of organizations representing a broad range of individuals with disabilities and organizations interested in individuals with disabilities: a. One individual representing the Statewide Independent Living Council established under Executive Order 2007-49 who must be the ? chairperson or other designee of the Statewide Independent Living Council. b. One individual representing a parent training and information center established under Section 671 of the Individuals with Disabilities Education Act, Public Law 91-30, as amended, 20 USC 1471. 4 c. One individual representing the client assistance program established under Section 112 of the Rehabilitation Act of 1973, Public Law 93- 112, as amended, 29 USC 732 who must be the director of or other individual recommended by the client assistance program. d. One individual representing qualified vocational rehabilitation counselors with knowledge of, and experience with, vocational rehabilitation programs. The individual appointed under this paragraph shall not be an employee of Michigan Rehabilitation Services or the Bureau of Services for Blind Persons. e. One individual representing community rehabilitation program service providers. f. Four individuals representing business, industry,.or labor. g. One individual representing the Talent Investment Board created by Executive Order 2011-13. h. At least two individuals representing disability advocacy groups, including a cross-section of the following: i. Individuals with physical, cognitive, sensory, and mental disabilities. ii. Individuals with disabilities who have difficulty in representing themselves or are unable due to their disabilities to represent themselves. i. One individual representing current or former applicants for, or recipients of, vocational rehabilitation services. j. One individual representing the director of a project carried out under Section 121 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 741, providing vocational rehabilitation services grant.s to the governing bodies of an Indian tribe or to a consortium of tribal governing bodies. 2. The Superintendent of Public Instruction, or his or her designee, from within the Department of Education. C. The Bureau Director of Michigan Rehabilitation Services and the Bureau Director of the Bureau of Services for Blind Persons shall serve as non-voting ex officio members of the Council. D. A majority of the members of the Council shall be individuals with disabilities as defined in 29 USC 705(20)(8) and shall not be employed by the Michigan Rehabilitation Services or the Bureau of Services for Blind Persons. When appointing members of the Council, the Governor shall consider, to the greatest extent practicable, the extent to which minority populations are represented on the Council. E. Of the members of the Council initially appointed by the Governor under Section VI.B., six (6) members shall be appointed for a term expiring on December 31, 2013, five (5) members shall be appointed for a term expiring on December 31, 2014, and five (5) members shall be appointed for a term expiring on December 31, 2015. After the initial appointments, members shall be appointed for a term of three (3) years. 5 F. A vacancy on the Council occurring other than by expiration of a term shall be filled by the Governor in the same manner as the original appointment for the balance of the unexpired term. A vacancy shall not affect the power of the remaining members to exercise the duties of the Council. G. Except for members appointed under Section V.B.1.c. or Section V.B.1. j., a member of the Council shall not serve more than two consecutive full terms. VI. CHARGE TO THE COUNCIL A. After consulting with the Talent Investment Board, the Council shall do all of the following: 1. Review, analyze, and advise Michigan Rehabilitation Services and the Bureau of Services for Blind Persons regarding the performance of the responsibilities of Michigan Rehabilitation Services and Bureau of Services for Blind Persons under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a, particularly responsibilities relating to all of the following: a. Eligibility, including order of selection. b. The extent, scope, and effectiveness of services provided. c. Functions performed by state agencies that affect or that potentially affect the ability of individuals with disabilities in achieving employment outcomes under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a. 2. In partnership with Michigan Rehabilitation Services and the Bureau of Services for Blind Persons: a. Develop, agree to, and review the goals and priorities of this state in accordance with Section 101(a)(15)(C) of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 721(a)(15)(C). b. Evaluate the effectiveness of the vocational rehabilitation program and submit reports of progress to the federal government in accordance with Sections 101(a)(15)(E) and 121 of the Rehabilitation Act of 1973 Public Law 93-112, as amended, 29 USC 721(a)(15)(E). 3. Advise the Department of Human Services, Michigan Rehabilitation Services, and the Department of Licensing and Regulatory Affairs, Bureau of Services for Blind Persons regarding activities authorized to be carried out under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a, and assist in the preparation of the State Plan and amendments to the State Plan, applications, reports, needs assessments, and evaluations required by Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a. 6 4. Perform all other functions required by 29 USC 725(c)(4)-(8). 5. Perform other functions related to the Council's responsibilities as requested by the Governor or the Director of the Department of Human Services or the Director of the Department of Licensing and Regulatory Affairs. VII. OPERATIONS OF THE COUNCIL A. The Council shall select from among its voting members a Chairperson of the Council, subject to the veto power of the Governor, and may select other officers as it deems necessary. B. The Council may adopt procedures consistent with federal law, Michigan law, and this Order governing its organization and operations. C. A majority of the voting members of the Council serving constitutes a quorum for the transaction of the Council's business. The Council shall act by a majority vote of the voting members of the Council serving. D. The Council shall meet at least four times per year in a place that the Council determines necessary to conduct Council business and conduct forums or hearings as the Council determines appropriate. E. The Council shall conduct all business at public meetings held in compliance with the Open Meetings Act, 1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date, and place of each meeting shall be given in the manner required by the Open Meetings Act, 1976 PA 267, MCL 15.261 to 15.275. F. The Council shall carry out its functions as required by 29 USC 725(d)-(e) and 29 USC 725(g). VIII. DISABILITY CONCERNS COMMISSION All the authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, and allocations or other funds, including the functions of budgeting and procurement, of the Disability Concerns Commission, created by Executive Order 2009-40, previously transferred by Executive Order 2011-4 from the Department of Licensing and Regulatory Affairs to the Department of Civil Rights by a Type I transfer, are hereby transferred to the Department of Civil Rights by Type Ill transfer. IX. ABOLISHED ENTITIES A. The Michigan Rehabilitation Council, created by Executive Order 2007-48, is abolished, and Executive Order 2007-48 is rescinded. B. The Commission for the Blind, created by MCL 393.352, and the Commission Board, created by 1999 AC, R 391.1 et seq., are abolished. 7 C. The position of Director of the Commission for the Blind created by MCL 393.352(1) is abolished. D. The Disability Concerns Commission, created by Executive Order 2009-40, is abolished. X. MISCELLANEOUS A. All rules, orders, contracts, plans, and agreements relating to the functions transferred to the Department of Human Services by this Order lawfully adopted prior to the effective date of this Order by the responsible state agency shall continue to be effective until revised, amended, or rescinded. B. Any suit, action, or other proceeding lawfully commenced by, against, or before any entity transferred to the Department of Human Services or the Department of Licensing and Regulatory Affairs by this Order shall not abate by reason of the taking effect of this Order. Any lawfully commenced suit, action, or other proceeding may be maintained by, against, or before the appropriate successor of any entity affected by this Order. C. The invalidity of any portion of this Order shall not affect the validity of the remainder of the Order, which may be given effect without any invalid portion. Any portion of this Order found invalid by a court or other entity with proper jurisdiction shall be severable from the remaining portions of this Order. In fulfillment of the requirements of Section 2 of Article V of the Michigan Constitution of 1963, the Sections VIII and IX D. of this Order shall be effective 60 days after the filing of this Order and the remaining provisions of this Order shall be effective on October 1, 2012. Given under my hand and the Great Seal of the state of Michigan this 27th day of June, in the Year of our Lord Two Thousand Twelve. [signature] Richard D. Snyder GOVERNOR BY THE GOVERNOR: [signature] SECRETARY OF STATE FILED WITH SECRETARY OF STATE ON 6/27/12 AT 3:55 pm [image: Great Seal of the State of Michigan] 8 -------------- next part -------------- An HTML attachment was scrubbed... URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image001.gif Type: image/gif Size: 97 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image002.gif Type: image/gif Size: 96 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image003.gif Type: image/gif Size: 98 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image004.gif Type: image/gif Size: 94 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image005.gif Type: image/gif Size: 97 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image006.gif Type: image/gif Size: 99 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image007.gif Type: image/gif Size: 97 bytes Desc: not available URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: clip_image009.gif Type: image/gif Size: 33182 bytes Desc: not available URL: From joeharcz at comcast.net Sat Jul 14 16:42:56 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 12:42:56 -0400 Subject: [Vendorsmi] statutatory violation Message-ID: <6145ED3AA68543F2ACDAC58A11F22067@YOUR7C60552B9E> EXECUTIVE ORGANIZATION ACT OF 1965 (EXCERPT) Popular name: Act 380 16.103 Types of transfers; continuation of agencies not enumerated. Sec. 3. (a) Under this act? (b) Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and and procurement, transferred to that principal department. Now we see the multiple violations of this act in this executive order: RICK SNYDER GOVERNOR [image: coat of arms of the state of Michigan] STATE OF MICHIGAN EXECUTIVE OFFICE LANSING BRIAN CALLEY LT, GOVERNOR EXECUTIVE ORDER No. 2012- 10 DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS DEPARTMENT OF HUMAN SERVICES DEPARTMENT OF CIVIL RIGHTS BUREAU OF SERVICES FOR BLIND PERSONS COMMISSION FOR THE BLIND COMMISSION FOR BLIND PERSONS MICHIGAN REHABILITATION COUNCIL MICHIGAN COUNCIL FOR REHABILITATION SERVICES DISABILITY CONCERNS COMMISSION RESCISSION OF EXECUTIVE ORDER 2007-48 EXECUTIVE REORGANIZATION WHEREAS, Section 1 of Article V of the Michigan Constitution of 1963 vests the executive power in the Governor; and WHEREAS, Section 2 of Article V of the Michigan Constitution of 1963 empowers the Governor to make changes in the organization of the Executive Branch or in the assignment of functions among its units that the Governor considers necessary for efficient administration; and WHEREAS, Section 8 of Article V of the Michigan Constitution of 1963 provides that each principal department shall be under the supervision of the Governor, unless otherwise provided by the Constitution; and WHEREAS, there is a continued need to reorganize functions among state departments to ensure efficient administration; and NOW, THEREFORE, I, Richard D. Snyder, Governor of the state of Michigan, by virtue of the powers and authority vested in the Governor by the Michigan Constitution of 1963 and Michigan law, order the following: I. BUREAU OF SERVICES FOR BLIND PERSONS A. The Bureau of Services for Blind Persons is created as a Type II Agency within the Department of Licensing and Regulatory Affairs. The Department of Licensing and Regulatory Affairs shall serve as a Designated State Agency under the GEORGE W.ROMNEY BUILDING ? 111 SOUTH CAPITOL AVENUE ? LANSING, MICHIGAN 48909 www.michigan.gov Rehabilitation Act of 1973, as amended, 29 USC 701 et seq. The Bureau of Services for Blind Persons shall serve as the State Licensing Agency under the Randolph? Sheppard vending facilities for blind in federal buildings act, 20 U.S.C. 107 to 107f. B. All authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds of the Commission for the Blind are transferred from the Commission for the Blind to the Bureau of Services for Blind Persons, including but not limited to the following: 1. The Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to 393.369. 2. Section ?a of the Michigan Historical Commission Act, 1913 PA 271, MCL 399.1 to 399.10. 3. Section 2 of the Limited Access Highways Act, 1941 PA 205, MCL 252.51 to 252.64. 4. Section 208 of the Michigan Museum Act, 1990 PA 325, MCL 399.301 to MCL 399.510. 5. Section 4 of the Business Opportunity Act for Persons with Disabilities, 1988 PA 112, MCL450.791 to MCL450.795. C. Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement of the Director of the Commission for the Blind are transferred to the Director of the Department of Licensing and Regulatory Affairs. D. Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds of the Commission for the Blind granted by 1999 AC, R 393.16(f), 393.34 and 393.56 are transferred to the Director of the Department of Licensing and Regulatory Affairs. E. Any authority, powers, duties and functions relative to final agency decisions for cases arising under the Randolph-Sheppard Act, 20 U.S.C. 107 to 107f, the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 U.S.C. 732, and the Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to MCL 393.369, are transferred from the Commission for the Blind to the Director of the Department of Licensing and Regulatory Affairs. II. COMMISSION FOR BLIND PERSONS A The Commission for Blind Persons ("Commission") is created as an advisory commission within the Department of Licensing and Regulatory Affairs. 2 B. The Commission shall consist of seven members appointed by, and serving at the pleasure of, the Governor. Four of the members shall be blind persons. C. The Commission members shall have a particular interest or expertise in the concerns of the blind community. D. The Governor shall designate a member of the Commission to serve as its Chairperson. The Chairperson shall serve at the pleasure of the Governor. E. The Director of the Department of Licensing and Regulatory Affairs shall perform all budgeting, procurement, and related management functions of the Commission. F. The Commission shall do the following: 1. Study and review the needs of the blind community in this state. 2. Advise the Department of Licensing and Regulatory Affairs concerning the coordination and administration of state programs serving the blind community. 3. Recommend changes in state programs, statutes, and policies that affect the blind community to the Department of Licensing and Regulatory Affairs. 4. Secure appropriate recognition of the accomplishments and contributions of blind residents of this state. 5. Monitor, evaluate, investigate, and advocate programs for the betterment of blind residents of this state. 6. Advise the Governor and the Director of the Department of Licensing and Regulatory Affairs, of the nature, magnitude, and priorities of the challenges of blind persons in this state. 7. Advise the Governor and the Director of the Department of Licensing and Regulatory Affairs on this state's policies concerning blind individuals. Ill. MICHIGAN REHABILITATION SERVICES Michigan Rehabilitation Services is transferred by a Type II transfer from the Department of Licensing and Regulatory Affairs to the Department of Human Services. The Department of Human Services shall serve as a Designated State Agency under the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq. Any authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement,of Michigan Rehabilitation Services, are transferred from the Department of Licensing and Regulatory Affairs to the Department of Human Services. 3 IV. IMPLEMENTATION OF TRANSFERS A. Any authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, used, held, employed, available, or to be made available to the Department of Licensing and Regulatory Affairs for the activities, powers, duties, functions, and responsibilities transferred by this Order are transferred to the receiving department. B. The director of the department receiving the transfer, after consultation with the Director of the Department of Licensing and Regulatory Affairs, shall provide executive direction and supervision for the implementation of the transfers. The assigned functions shall be administered under the direction and supervision of the director of the receiving department. C. The directors of the departments impacted by this Order shall immediately initiate coordination to facilitate the transfers and shall develop a memorandum of record identifying any pending settlements, issues of compliance with applicable federal and state laws and regulations, or other obligations to be resolved. D. The directors of the departments impacted by this Order shall administer the functions transferred in such ways as to promote efficient administration and shall make internal organizational changes as may be administratively necessary to complete the realignment of responsibilities under this Order. V. CREATION OF MICHIGAN COUNCIL FOR REHABILITATION SERVICES A. The Michigan Council for Rehabilitation Services ("Council") is established within the Department of Human Services. The Council shall serve as a single state rehabilitation council pursuant to 29 USC 721(a)(21)(B) for the Department of Human Services, Michigan Rehabilitation Services and the Department of Licensing and Regulatory Affairs, Bureau of Services for Blind Persons.' B. The Council shall include the following seventeen (17) voting members: 1. The following members shall be appointed by the Governor, after soliciting recommendations from representatives of organizations representing a broad range of individuals with disabilities and organizations interested in individuals with disabilities: a. One individual representing the Statewide Independent Living Council established under Executive Order 2007-49 who must be the ? chairperson or other designee of the Statewide Independent Living Council. b. One individual representing a parent training and information center established under Section 671 of the Individuals with Disabilities Education Act, Public Law 91-30, as amended, 20 USC 1471. 4 c. One individual representing the client assistance program established under Section 112 of the Rehabilitation Act of 1973, Public Law 93- 112, as amended, 29 USC 732 who must be the director of or other individual recommended by the client assistance program. d. One individual representing qualified vocational rehabilitation counselors with knowledge of, and experience with, vocational rehabilitation programs. The individual appointed under this paragraph shall not be an employee of Michigan Rehabilitation Services or the Bureau of Services for Blind Persons. e. One individual representing community rehabilitation program service providers. f. Four individuals representing business, industry,.or labor. g. One individual representing the Talent Investment Board created by Executive Order 2011-13. h. At least two individuals representing disability advocacy groups, including a cross-section of the following: i. Individuals with physical, cognitive, sensory, and mental disabilities. ii. Individuals with disabilities who have difficulty in representing themselves or are unable due to their disabilities to represent themselves. i. One individual representing current or former applicants for, or recipients of, vocational rehabilitation services. j. One individual representing the director of a project carried out under Section 121 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 741, providing vocational rehabilitation services grant.s to the governing bodies of an Indian tribe or to a consortium of tribal governing bodies. 2. The Superintendent of Public Instruction, or his or her designee, from within the Department of Education. C. The Bureau Director of Michigan Rehabilitation Services and the Bureau Director of the Bureau of Services for Blind Persons shall serve as non-voting ex officio members of the Council. D. A majority of the members of the Council shall be individuals with disabilities as defined in 29 USC 705(20)(8) and shall not be employed by the Michigan Rehabilitation Services or the Bureau of Services for Blind Persons. When appointing members of the Council, the Governor shall consider, to the greatest extent practicable, the extent to which minority populations are represented on the Council. E. Of the members of the Council initially appointed by the Governor under Section VI.B., six (6) members shall be appointed for a term expiring on December 31, 2013, five (5) members shall be appointed for a term expiring on December 31, 2014, and five (5) members shall be appointed for a term expiring on December 31, 2015. After the initial appointments, members shall be appointed for a term of three (3) years. 5 F. A vacancy on the Council occurring other than by expiration of a term shall be filled by the Governor in the same manner as the original appointment for the balance of the unexpired term. A vacancy shall not affect the power of the remaining members to exercise the duties of the Council. G. Except for members appointed under Section V.B.1.c. or Section V.B.1. j., a member of the Council shall not serve more than two consecutive full terms. VI. CHARGE TO THE COUNCIL A. After consulting with the Talent Investment Board, the Council shall do all of the following: 1. Review, analyze, and advise Michigan Rehabilitation Services and the Bureau of Services for Blind Persons regarding the performance of the responsibilities of Michigan Rehabilitation Services and Bureau of Services for Blind Persons under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a, particularly responsibilities relating to all of the following: a. Eligibility, including order of selection. b. The extent, scope, and effectiveness of services provided. c. Functions performed by state agencies that affect or that potentially affect the ability of individuals with disabilities in achieving employment outcomes under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a. 2. In partnership with Michigan Rehabilitation Services and the Bureau of Services for Blind Persons: a. Develop, agree to, and review the goals and priorities of this state in accordance with Section 101(a)(15)(C) of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 721(a)(15)(C). b. Evaluate the effectiveness of the vocational rehabilitation program and submit reports of progress to the federal government in accordance with Sections 101(a)(15)(E) and 121 of the Rehabilitation Act of 1973 Public Law 93-112, as amended, 29 USC 721(a)(15)(E). 3. Advise the Department of Human Services, Michigan Rehabilitation Services, and the Department of Licensing and Regulatory Affairs, Bureau of Services for Blind Persons regarding activities authorized to be carried out under Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a, and assist in the preparation of the State Plan and amendments to the State Plan, applications, reports, needs assessments, and evaluations required by Sections 100 to 141 of the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 720 to 753a. 6 4. Perform all other functions required by 29 USC 725(c)(4)-(8). 5. Perform other functions related to the Council's responsibilities as requested by the Governor or the Director of the Department of Human Services or the Director of the Department of Licensing and Regulatory Affairs. VII. OPERATIONS OF THE COUNCIL A. The Council shall select from among its voting members a Chairperson of the Council, subject to the veto power of the Governor, and may select other officers as it deems necessary. B. The Council may adopt procedures consistent with federal law, Michigan law, and this Order governing its organization and operations. C. A majority of the voting members of the Council serving constitutes a quorum for the transaction of the Council's business. The Council shall act by a majority vote of the voting members of the Council serving. D. The Council shall meet at least four times per year in a place that the Council determines necessary to conduct Council business and conduct forums or hearings as the Council determines appropriate. E. The Council shall conduct all business at public meetings held in compliance with the Open Meetings Act, 1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date, and place of each meeting shall be given in the manner required by the Open Meetings Act, 1976 PA 267, MCL 15.261 to 15.275. F. The Council shall carry out its functions as required by 29 USC 725(d)-(e) and 29 USC 725(g). VIII. DISABILITY CONCERNS COMMISSION All the authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, and allocations or other funds, including the functions of budgeting and procurement, of the Disability Concerns Commission, created by Executive Order 2009-40, previously transferred by Executive Order 2011-4 from the Department of Licensing and Regulatory Affairs to the Department of Civil Rights by a Type I transfer, are hereby transferred to the Department of Civil Rights by Type Ill transfer. IX. ABOLISHED ENTITIES A. The Michigan Rehabilitation Council, created by Executive Order 2007-48, is abolished, and Executive Order 2007-48 is rescinded. B. The Commission for the Blind, created by MCL 393.352, and the Commission Board, created by 1999 AC, R 391.1 et seq., are abolished. 7 C. The position of Director of the Commission for the Blind created by MCL 393.352(1) is abolished. D. The Disability Concerns Commission, created by Executive Order 2009-40, is abolished. X. MISCELLANEOUS A. All rules, orders, contracts, plans, and agreements relating to the functions transferred to the Department of Human Services by this Order lawfully adopted prior to the effective date of this Order by the responsible state agency shall continue to be effective until revised, amended, or rescinded. B. Any suit, action, or other proceeding lawfully commenced by, against, or before any entity transferred to the Department of Human Services or the Department of Licensing and Regulatory Affairs by this Order shall not abate by reason of the taking effect of this Order. Any lawfully commenced suit, action, or other proceeding may be maintained by, against, or before the appropriate successor of any entity affected by this Order. C. The invalidity of any portion of this Order shall not affect the validity of the remainder of the Order, which may be given effect without any invalid portion. Any portion of this Order found invalid by a court or other entity with proper jurisdiction shall be severable from the remaining portions of this Order. In fulfillment of the requirements of Section 2 of Article V of the Michigan Constitution of 1963, the Sections VIII and IX D. of this Order shall be effective 60 days after the filing of this Order and the remaining provisions of this Order shall be effective on October 1, 2012. Given under my hand and the Great Seal of the state of Michigan this 27th day of June, in the Year of our Lord Two Thousand Twelve. [signature] Richard D. Snyder GOVERNOR BY THE GOVERNOR: [signature] SECRETARY OF STATE FILED WITH SECRETARY OF STATE ON 6/27/12 AT 3:55 pm [image: Great Seal of the State of Michigan] 8 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 22:58:10 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 18:58:10 -0400 Subject: [Vendorsmi] ag opinion confirms eo 2012-10 not legal Message-ID: July 14, 2012 This Michigan Attorney General opinion and cases are binding. This is very important to note that a Commission such as the Commission for the Blind enacted under PA 260 can only be abolished with a Type III Transfer. Yet in Executive Order 2012-10 the Governor abolishes the Commission and the Act with a Type III Transfer. That is beyond the statutory authority of The Executive Organization Act itself which gives all Michigan Governors rather broad authorities, but not this broad! Joe Harcz Opinion #6675 The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6675 February 19, 1991 GOVERNOR: Authority to abolish boards and commissions under Const 1963, art 5, Sec. 2 CONSTITUTIONAL LAW: Authority of Governor to abolish boards and commissions under Const 1963, art 5, Sec. 2 The people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions subject to legislative disapproval. Honorable John Engler Governor of Michigan The Capitol Lansing, Michigan You have sought my opinion regarding your authority as Governor to make changes both in the organization of the executive branch and in the assignment of functions within executive branch departments and agencies. Specifically, you have asked whether the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions. Const 1963, art 5, Sec. 2, provides in its second paragraph: Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor. In the Address to the People, the Constitutional Convention commented regarding this provision as follows: The section ... would retain in the hands of the legislature and the governor considerable discretion as to internal organization within principal departments. The initial allocation of departments (see Schedule and Temporary Provisions) is left to the legislature.... Subsequently, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. These changes become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature. 2 Official Record, Constitutional Convention 1961, pp 3378-3379. In Soap & Detergent Association v Natural Resources Commission, 415 Mich 728, 330 NW2d 346 (1982), the Michigan Supreme Court considered at length the Governor's authority to transfer powers between executive agencies. At issue was the Governor's authority to transfer the rulemaking power to further restrict the nutrient content of cleaning agents from the Water Resources Commission, where it had been placed by the Legislature, to the Natural Resources Commission. The Court stated: The constitutional provision of art 5, Sec. 2, was given effect in 1965 when the Legislature enacted the Executive Organization Act, MCL 16.101 et seq; MSA 3.29(1) et seq. The act established 19 principal departments and made the initial allocation of functions among the d partments. [O]n various occasions, the Governor has utilized his power to issue executive reorganization orders. [ Id., pp 742-743.] The record of the constitutional convention indicates that the convention's purpose in including art 5, Sec. 2, was to facilitate economy and efficiency in the executive agencies. 2 Official Record, Constitutional Convention 1961, p 1847 (comments of Mr. Pollock); p 1836 (comments of Mr. Martin); p 1837 (Comments of Mr. Bentley). The convention felt that the Legislature previously had failed to effectuate a reorganization itself, and that the Governor was in the best position to accomplish the desired ends, having intimate knowledge of the problems. 2 Official Record, Constitutional Convention 1961, p 1846 (comment of Mr. Pollock). The convention recognized that the reorganization power granted the Governor in p 2 of art 5, Sec. 2, was clearly legislative. 2 Official Record, Constitutional Convention 1961, p 1846 (comments of Mr. Heideman and Mr. Hutchinson). [ footnote omitted] Nonetheless, the delegates chose to include this delegation to the Governor in the constitution, subject to vigorously debated checks deemed necessary to restrain the broad grant of power. 2 Official Record, Constitutional Convention 1961, pp 1843-1854. [T]he convention's purpose ... was to grant the Governor full legislative power to promote the most efficient possible executive department. [ Id., pp 745-747.] Further support for the logic of this interpretation of the constitution is found in the Executive Organization Act. In McDonald v Schnipke, 380 Mich 14, 26; 155 NW2d 169 (1968), this Court held that art 5, Sec. 2, of the constitution was not self-executing, but that the Executive Organization Act served as the enabling act of that provision. [ footnote omitted] The Executive Organization Act establishes 19 principal departments. The act also provides a general mechanism for placing existing agencies into the framework of the 19 principal departments. Three types of transfers could be effectuated. [ Id., p 748.] Under a Type III transfer, the agency is abolished. MCL 16.103(c); MSA 3.29(3)(c). [ Id., p 749.] No specific considerations are provided in the Executive Organization Act for the art 5, Sec. 2, activities--the subsequent reallocations by the Governor. Yet in McDonald this Court held that the act was the implementing legislation for the constitutional section. The fair implication of this interpretation is that the Governor, in exercising his powers, should use the transfer mechanism established in the Executive Organization Act, i.e., the provisions regarding Type I through Type III transfers and the relationship between the departments and the transferred agencies. [ Id., p 750.] The Court then considered the argument that if the Governor has the power to reorganize the executive branch such power would violate the doctrine of separation of powers by commingling executive and legislative functions within the executive branch. The Court held: [W]hile art 3, Sec. 2, of the constitution provides for strict separation of power, [footnote omitted] this has not been interpreted to mean that the branches must be kept wholly separate. [ citations omitted] Additionally, where, as in art 5, Sec. 2, the constitution explicitly grants powers of one branch to another, there can be no separation of powers problem. [ citation omitted] Article 5, Sec. 2, does not by any means vest "all"' or any considerable legislative power in the executive. While it is true that broad legislative power has been delegated to the Governor to effectuate executive reorganization, this power is clearly limited. Three limitations must be emphasized. First, the area of executive exercise of legislative power is very limited and specific. Second, the executive branch is not the sole possessor of this power; the Legislature has concurrent power to transfer functions and powers of the executive agencies. Third, the Legislature is specifically granted the power to veto executive reorganization orders before they become law. Therefore, the specific intent of the constitutional convention in fashioning art 5, Sec. 2, having been to delegate a very limited and specific legislative power to the executive, and this provision having been adopted into the constitution with sufficient checks to restrain an improper exercise of this power, we find no constitutional infirmity negating the Governor's ability to transfer rulemaking authority from one agency to that agency's department head. [ Id., pp 752-753.] As the Supreme Court opinion, in n 10, p 746, states: The nature and extent of the power granted to the Governor in art 5, Sec. 2, was most thoroughly discussed by the convention in the context of what restraints should be placed upon the Governor's exercise of the power. In fact, there was an effort made to reduce the Governor's reorganization authority by giving both the House and the Senate the individual power to veto an executive order issued pursuant to art 5, Sec. 2. Delegate Hutchinson spoke to the "tremendous political power"' the Governor would possess under art 5, Sec. 2: Whoever has the power by an executive order to organize and to rearrange the departments of his government to suit his will has a tremendous political power, because if, for instance, a particular function is being carried on in one department in a way which doesn't suit the governor and still he doesn't think it politically wise, you know, to remove the head of the department or anything, he can, by a reorganization plan, simply take that function which is being performed in a manner not suitable to him out of that department and place it someplace else. That is a tremendous political power. 2 Official Record, Constitutional Convention 1961, p 1844. Delegate Pollock, speaking on this same issue, said: [T]he governor is in a much better position to know what is needed within his own administrative structure than anybody else. I think certainly the legislature should have the power to veto any proposal that is not in the public interest, but I do not think that this should be made easy, and I think it is not too difficult by requiring a majority of both houses. 2 Official Record, Constitutional Convention 1961, p 1846. Delegate Binkowski followed, saying: However, I think basically the reason for having this form is to place the responsibility with the executive, who should know all about these administrative agencies, and to allow him to initiate the programs, and therefore present them to the legislature. I think the reason for executive reorganization is simply economy and efficiency in government. If you are going to go ahead, as we have done, and give the executive the responsibility of lowering appropriations, then I think you have to give him the responsibility in this area of his executive departments, so that he can eliminate or consolidate in the best interests of the state. [T]he legislature does appropriate funds, so that if they are unhappy with any extension of power, so called power by the governor, if the governor should create a new agency which they are dissatisfied with, they can effectively reduce the effectiveness of that organization. [ Emphasis added.] 2 Official Record, Constitutional Convention 1961, p 1848. As the Supreme Court pointed out in Soap & Detergent Association, supra, it held in McDonald, supra, that the Executive Organization Act, supra, is the enabling act of art 5, Sec. 2. In the Executive Organization Act the Legislature has provided that: [A] type III transfer means the abolishing of an existing department, board, commission or agency.... [Emphasis added.] MCL 16.103(c); MSA 3.29(3)(c). It is my opinion, therefore, that the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish or eliminate boards and commissions. Further, the Legislature has provided in the Executive Organization Act the procedure to be followed in doing so. Such action is, of course, subject to the Legislature's right to disapprove an executive order doing so. Frank J. Kelley Attorney General http://opinion/datafiles/1990s/op06675.htm State of Michigan, Department of Attorney General Last Updated 11/10/2008 16:49:34 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 14 23:27:54 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 14 Jul 2012 19:27:54 -0400 Subject: [Vendorsmi] ag opinion confirms eo illegal Message-ID: July 14, 2012 This Michigan Attorney General opinion and cases are binding. This is very important to note that a Commission such as the Commission for the Blind enacted under PA 260 can only be abolished with a Type III Transfer. Yet in Executive Order 2012-10 the Governor abolishes the Commission and the Act with a Type III Transfer. That is beyond the statutory authority of The Executive Organization Act itself which gives all Michigan Governors rather broad authorities, but not this broad! Joe Harcz Opinion #6675 The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6675 February 19, 1991 GOVERNOR: Authority to abolish boards and commissions under Const 1963, art 5, Sec. 2 CONSTITUTIONAL LAW: Authority of Governor to abolish boards and commissions under Const 1963, art 5, Sec. 2 The people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions subject to legislative disapproval. Honorable John Engler Governor of Michigan The Capitol Lansing, Michigan You have sought my opinion regarding your authority as Governor to make changes both in the organization of the executive branch and in the assignment of functions within executive branch departments and agencies. Specifically, you have asked whether the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions. Const 1963, art 5, Sec. 2, provides in its second paragraph: Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor. In the Address to the People, the Constitutional Convention commented regarding this provision as follows: The section ... would retain in the hands of the legislature and the governor considerable discretion as to internal organization within principal departments. The initial allocation of departments (see Schedule and Temporary Provisions) is left to the legislature.... Subsequently, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. These changes become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature. 2 Official Record, Constitutional Convention 1961, pp 3378-3379. In Soap & Detergent Association v Natural Resources Commission, 415 Mich 728, 330 NW2d 346 (1982), the Michigan Supreme Court considered at length the Governor's authority to transfer powers between executive agencies. At issue was the Governor's authority to transfer the rulemaking power to further restrict the nutrient content of cleaning agents from the Water Resources Commission, where it had been placed by the Legislature, to the Natural Resources Commission. The Court stated: The constitutional provision of art 5, Sec. 2, was given effect in 1965 when the Legislature enacted the Executive Organization Act, MCL 16.101 et seq; MSA 3.29(1) et seq. The act established 19 principal departments and made the initial allocation of functions among the d partments. [O]n various occasions, the Governor has utilized his power to issue executive reorganization orders. [ Id., pp 742-743.] The record of the constitutional convention indicates that the convention's purpose in including art 5, Sec. 2, was to facilitate economy and efficiency in the executive agencies. 2 Official Record, Constitutional Convention 1961, p 1847 (comments of Mr. Pollock); p 1836 (comments of Mr. Martin); p 1837 (Comments of Mr. Bentley). The convention felt that the Legislature previously had failed to effectuate a reorganization itself, and that the Governor was in the best position to accomplish the desired ends, having intimate knowledge of the problems. 2 Official Record, Constitutional Convention 1961, p 1846 (comment of Mr. Pollock). The convention recognized that the reorganization power granted the Governor in p 2 of art 5, Sec. 2, was clearly legislative. 2 Official Record, Constitutional Convention 1961, p 1846 (comments of Mr. Heideman and Mr. Hutchinson). [ footnote omitted] Nonetheless, the delegates chose to include this delegation to the Governor in the constitution, subject to vigorously debated checks deemed necessary to restrain the broad grant of power. 2 Official Record, Constitutional Convention 1961, pp 1843-1854. [T]he convention's purpose ... was to grant the Governor full legislative power to promote the most efficient possible executive department. [ Id., pp 745-747.] Further support for the logic of this interpretation of the constitution is found in the Executive Organization Act. In McDonald v Schnipke, 380 Mich 14, 26; 155 NW2d 169 (1968), this Court held that art 5, Sec. 2, of the constitution was not self-executing, but that the Executive Organization Act served as the enabling act of that provision. [ footnote omitted] The Executive Organization Act establishes 19 principal departments. The act also provides a general mechanism for placing existing agencies into the framework of the 19 principal departments. Three types of transfers could be effectuated. [ Id., p 748.] Under a Type III transfer, the agency is abolished. MCL 16.103(c); MSA 3.29(3)(c). [ Id., p 749.] No specific considerations are provided in the Executive Organization Act for the art 5, Sec. 2, activities--the subsequent reallocations by the Governor. Yet in McDonald this Court held that the act was the implementing legislation for the constitutional section. The fair implication of this interpretation is that the Governor, in exercising his powers, should use the transfer mechanism established in the Executive Organization Act, i.e., the provisions regarding Type I through Type III transfers and the relationship between the departments and the transferred agencies. [ Id., p 750.] The Court then considered the argument that if the Governor has the power to reorganize the executive branch such power would violate the doctrine of separation of powers by commingling executive and legislative functions within the executive branch. The Court held: [W]hile art 3, Sec. 2, of the constitution provides for strict separation of power, [footnote omitted] this has not been interpreted to mean that the branches must be kept wholly separate. [ citations omitted] Additionally, where, as in art 5, Sec. 2, the constitution explicitly grants powers of one branch to another, there can be no separation of powers problem. [ citation omitted] Article 5, Sec. 2, does not by any means vest "all"' or any considerable legislative power in the executive. While it is true that broad legislative power has been delegated to the Governor to effectuate executive reorganization, this power is clearly limited. Three limitations must be emphasized. First, the area of executive exercise of legislative power is very limited and specific. Second, the executive branch is not the sole possessor of this power; the Legislature has concurrent power to transfer functions and powers of the executive agencies. Third, the Legislature is specifically granted the power to veto executive reorganization orders before they become law. Therefore, the specific intent of the constitutional convention in fashioning art 5, Sec. 2, having been to delegate a very limited and specific legislative power to the executive, and this provision having been adopted into the constitution with sufficient checks to restrain an improper exercise of this power, we find no constitutional infirmity negating the Governor's ability to transfer rulemaking authority from one agency to that agency's department head. [ Id., pp 752-753.] As the Supreme Court opinion, in n 10, p 746, states: The nature and extent of the power granted to the Governor in art 5, Sec. 2, was most thoroughly discussed by the convention in the context of what restraints should be placed upon the Governor's exercise of the power. In fact, there was an effort made to reduce the Governor's reorganization authority by giving both the House and the Senate the individual power to veto an executive order issued pursuant to art 5, Sec. 2. Delegate Hutchinson spoke to the "tremendous political power"' the Governor would possess under art 5, Sec. 2: Whoever has the power by an executive order to organize and to rearrange the departments of his government to suit his will has a tremendous political power, because if, for instance, a particular function is being carried on in one department in a way which doesn't suit the governor and still he doesn't think it politically wise, you know, to remove the head of the department or anything, he can, by a reorganization plan, simply take that function which is being performed in a manner not suitable to him out of that department and place it someplace else. That is a tremendous political power. 2 Official Record, Constitutional Convention 1961, p 1844. Delegate Pollock, speaking on this same issue, said: [T]he governor is in a much better position to know what is needed within his own administrative structure than anybody else. I think certainly the legislature should have the power to veto any proposal that is not in the public interest, but I do not think that this should be made easy, and I think it is not too difficult by requiring a majority of both houses. 2 Official Record, Constitutional Convention 1961, p 1846. Delegate Binkowski followed, saying: However, I think basically the reason for having this form is to place the responsibility with the executive, who should know all about these administrative agencies, and to allow him to initiate the programs, and therefore present them to the legislature. I think the reason for executive reorganization is simply economy and efficiency in government. If you are going to go ahead, as we have done, and give the executive the responsibility of lowering appropriations, then I think you have to give him the responsibility in this area of his executive departments, so that he can eliminate or consolidate in the best interests of the state. [T]he legislature does appropriate funds, so that if they are unhappy with any extension of power, so called power by the governor, if the governor should create a new agency which they are dissatisfied with, they can effectively reduce the effectiveness of that organization. [ Emphasis added.] 2 Official Record, Constitutional Convention 1961, p 1848. As the Supreme Court pointed out in Soap & Detergent Association, supra, it held in McDonald, supra, that the Executive Organization Act, supra, is the enabling act of art 5, Sec. 2. In the Executive Organization Act the Legislature has provided that: [A] type III transfer means the abolishing of an existing department, board, commission or agency.... [Emphasis added.] MCL 16.103(c); MSA 3.29(3)(c). It is my opinion, therefore, that the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish or eliminate boards and commissions. Further, the Legislature has provided in the Executive Organization Act the procedure to be followed in doing so. Such action is, of course, subject to the Legislature's right to disapprove an executive order doing so. Frank J. Kelley Attorney General http://opinion/datafiles/1990s/op06675.htm State of Michigan, Department of Attorney General Last Updated 11/10/2008 16:49:34 _______________________________________________ Blind-Democracy mailing list Blind-Democracy at octothorp.org http://www.octothorp.org/mailman/listinfo/blind-democracy -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sun Jul 15 19:20:19 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sun, 15 Jul 2012 15:20:19 -0400 Subject: [Vendorsmi] Fw: comments state plan conflicts of interests and more Message-ID: ----- Original Message ----- From: joe harcz Comcast To: gastond at michigan.gov Cc: Craig McManus RSA ; Carol Dobak ; Brenda Bove, MI ACLU ; Kary Moss ACLU MI ; Elmer Cerano MPAS ; MARK CODY ; Richard Bernstein Esq ; nfbmi-talk at nfbnet.org ; Larry Posont MCB Comm. ; lydia Schuck MCB Comm. ; John Scott MCB Comm. ; Susan Fitzmaurice ; Luke Zelley TDN ; carol bergquist Hannaville MRC Sent: Sunday, July 15, 2012 3:19 PM Subject: comments state plan conflicts of interests and more Conflict of Interest and Non -delegable Authorities July 15, 2012 Comments on MCB State Plan Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net All, note the following from the ludicrous Michigan Commission for the Blind State Plan: ?2. The name of the designated state vocational rehabilitation unit is: Bureau of Services for Blind Persons (?BSBP?), under the Rehabilitation Act of 1973, as amended, 29 USC 701 et seq. The Bureau of Services for Blind Persons serves as the State Licensing Agency under the Randolph Sheppard vending facilities for blind in federal buildings act, 20 USC 107 to 107f. Any authority, powers, duties and functions relative to final agency decisions for cases arising under the Randolph Sheppard Act, 20 USC 107 to 107f, the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 732, and the Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to MCL 393.369, lies with the Director of the Department of Licensing and Regulatory Affairs.? First of all and once again the signaturre on the pre-print is not the Director of LARA which isn?t a Vocational Rehabilitation entity in the first place, but that of LARA Deputy Director Michael Zimmer. Now, Michael Zimmer runs the Michigan Administrative Hhearings System where Business Enterprise Operators and in fact VR clients can take complaints. Currently the Michigan Commission for the Blind board under PA 260 and rules makes the final agency determination for the SLA as a safe guard in due process and equal protection under law, all of which has been routinely violated over the years by MAHS to begin with in documented fashion including substantial violations under Zimmer?s direction of the Americans with Disabilities Act and Section 504 of the very Rehabilitation Act all are violating here. Moreover, this is at cross purposes for if the illegal Executive Order 2012-10 takes place it would eliminate PA 260 which establishes the State Priority to begin with. I know this sounds confusing. That is because it is a mish mash of multiple violations of both state and federal laws to numerous to count. But, clearly the Department of Licensing and Regulatory Affairs cannot serve the interests of blind folks here and their rights to fundamental due process and equal protection under law when the self-same entity runs the quasi-judicial proceedings and then also makes ?the final agency determination?. There can be no impartiality by any measure here. It is a codified conflict of interests making the Designated State Agency judge and jury all wrapped up in the same package. This is a VR program for people who are blind after all. In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c) (2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). Thus this is simply a gross conflict of interest, institutionalized denials of blind in due process proceedings that will be arbitrary and capricious, and more non-deligable authorities over federal VR funds illegally sought by the Designated State Agency. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: NFB MI Cc: Michigan Protection and Advocacy Services Cc: Michigan Americans with Civil Liberties Union Cc: MRC Cc: several attorneys at law -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sun Jul 15 20:43:08 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sun, 15 Jul 2012 16:43:08 -0400 Subject: [Vendorsmi] Fw: eo 2012-10 not legal Message-ID: <2608509DABED46F6BFE1667F62403895@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Blind Democracy Discussion List Sent: Sunday, July 15, 2012 4:41 PM Subject: Re: eo 2012-10 not legal Actually I had a typo here. EO 2012-10 abolishes the Commission and PA 260 with a Type II transfer. That clearly on its face violates the Executive Organization Act. It thus invalidates everything related to abolishing the Commission for the Blind, PA 260 and the lunatice State Plan. Joe Harcz ----- Original Message ----- From: joe harcz Comcast To: blind democracy List Sent: Saturday, July 14, 2012 7:02 PM Subject: eo 2012-10 not legal July 14, 2012 This Michigan Attorney General opinion and cases are binding. This is very important to note that a Commission such as the Commission for the Blind enacted under PA 260 can only be abolished with a Type III Transfer. Yet in Executive Order 2012-10 the Governor abolishes the Commission and the Act with a Type III Transfer. That is beyond the statutory authority of The Executive Organization Act itself which gives all Michigan Governors rather broad authorities, but not this broad! Joe Harcz Opinion #6675 The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6675 February 19, 1991 GOVERNOR: Authority to abolish boards and commissions under Const 1963, art 5, Sec. 2 CONSTITUTIONAL LAW: Authority of Governor to abolish boards and commissions under Const 1963, art 5, Sec. 2 The people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions subject to legislative disapproval. Honorable John Engler Governor of Michigan The Capitol Lansing, Michigan You have sought my opinion regarding your authority as Governor to make changes both in the organization of the executive branch and in the assignment of functions within executive branch departments and agencies. Specifically, you have asked whether the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions. Const 1963, art 5, Sec. 2, provides in its second paragraph: Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor. In the Address to the People, the Constitutional Convention commented regarding this provision as follows: The section ... would retain in the hands of the legislature and the governor considerable discretion as to internal organization within principal departments. The initial allocation of departments (see Schedule and Temporary Provisions) is left to the legislature.... Subsequently, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. These changes become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature. 2 Official Record, Constitutional Convention 1961, pp 3378-3379. In Soap & Detergent Association v Natural Resources Commission, 415 Mich 728, 330 NW2d 346 (1982), the Michigan Supreme Court considered at length the Governor's authority to transfer powers between executive agencies. At issue was the Governor's authority to transfer the rulemaking power to further restrict the nutrient content of cleaning agents from the Water Resources Commission, where it had been placed by the Legislature, to the Natural Resources Commission. The Court stated: The constitutional provision of art 5, Sec. 2, was given effect in 1965 when the Legislature enacted the Executive Organization Act, MCL 16.101 et seq; MSA 3.29(1) et seq. The act established 19 principal departments and made the initial allocation of functions among the d partments. [O]n various occasions, the Governor has utilized his power to issue executive reorganization orders. [ Id., pp 742-743.] The record of the constitutional convention indicates that the convention's purpose in including art 5, Sec. 2, was to facilitate economy and efficiency in the executive agencies. 2 Official Record, Constitutional Convention 1961, p 1847 (comments of Mr. Pollock); p 1836 (comments of Mr. Martin); p 1837 (Comments of Mr. Bentley). The convention felt that the Legislature previously had failed to effectuate a reorganization itself, and that the Governor was in the best position to accomplish the desired ends, having intimate knowledge of the problems. 2 Official Record, Constitutional Convention 1961, p 1846 (comment of Mr. Pollock). The convention recognized that the reorganization power granted the Governor in p 2 of art 5, Sec. 2, was clearly legislative. 2 Official Record, Constitutional Convention 1961, p 1846 (comments of Mr. Heideman and Mr. Hutchinson). [ footnote omitted] Nonetheless, the delegates chose to include this delegation to the Governor in the constitution, subject to vigorously debated checks deemed necessary to restrain the broad grant of power. 2 Official Record, Constitutional Convention 1961, pp 1843-1854. [T]he convention's purpose ... was to grant the Governor full legislative power to promote the most efficient possible executive department. [ Id., pp 745-747.] Further support for the logic of this interpretation of the constitution is found in the Executive Organization Act. In McDonald v Schnipke, 380 Mich 14, 26; 155 NW2d 169 (1968), this Court held that art 5, Sec. 2, of the constitution was not self-executing, but that the Executive Organization Act served as the enabling act of that provision. [ footnote omitted] The Executive Organization Act establishes 19 principal departments. The act also provides a general mechanism for placing existing agencies into the framework of the 19 principal departments. Three types of transfers could be effectuated. [ Id., p 748.] Under a Type III transfer, the agency is abolished. MCL 16.103(c); MSA 3.29(3)(c). [ Id., p 749.] No specific considerations are provided in the Executive Organization Act for the art 5, Sec. 2, activities--the subsequent reallocations by the Governor. Yet in McDonald this Court held that the act was the implementing legislation for the constitutional section. The fair implication of this interpretation is that the Governor, in exercising his powers, should use the transfer mechanism established in the Executive Organization Act, i.e., the provisions regarding Type I through Type III transfers and the relationship between the departments and the transferred agencies. [ Id., p 750.] The Court then considered the argument that if the Governor has the power to reorganize the executive branch such power would violate the doctrine of separation of powers by commingling executive and legislative functions within the executive branch. The Court held: [W]hile art 3, Sec. 2, of the constitution provides for strict separation of power, [footnote omitted] this has not been interpreted to mean that the branches must be kept wholly separate. [ citations omitted] Additionally, where, as in art 5, Sec. 2, the constitution explicitly grants powers of one branch to another, there can be no separation of powers problem. [ citation omitted] Article 5, Sec. 2, does not by any means vest "all"' or any considerable legislative power in the executive. While it is true that broad legislative power has been delegated to the Governor to effectuate executive reorganization, this power is clearly limited. Three limitations must be emphasized. First, the area of executive exercise of legislative power is very limited and specific. Second, the executive branch is not the sole possessor of this power; the Legislature has concurrent power to transfer functions and powers of the executive agencies. Third, the Legislature is specifically granted the power to veto executive reorganization orders before they become law. Therefore, the specific intent of the constitutional convention in fashioning art 5, Sec. 2, having been to delegate a very limited and specific legislative power to the executive, and this provision having been adopted into the constitution with sufficient checks to restrain an improper exercise of this power, we find no constitutional infirmity negating the Governor's ability to transfer rulemaking authority from one agency to that agency's department head. [ Id., pp 752-753.] As the Supreme Court opinion, in n 10, p 746, states: The nature and extent of the power granted to the Governor in art 5, Sec. 2, was most thoroughly discussed by the convention in the context of what restraints should be placed upon the Governor's exercise of the power. In fact, there was an effort made to reduce the Governor's reorganization authority by giving both the House and the Senate the individual power to veto an executive order issued pursuant to art 5, Sec. 2. Delegate Hutchinson spoke to the "tremendous political power"' the Governor would possess under art 5, Sec. 2: Whoever has the power by an executive order to organize and to rearrange the departments of his government to suit his will has a tremendous political power, because if, for instance, a particular function is being carried on in one department in a way which doesn't suit the governor and still he doesn't think it politically wise, you know, to remove the head of the department or anything, he can, by a reorganization plan, simply take that function which is being performed in a manner not suitable to him out of that department and place it someplace else. That is a tremendous political power. 2 Official Record, Constitutional Convention 1961, p 1844. Delegate Pollock, speaking on this same issue, said: [T]he governor is in a much better position to know what is needed within his own administrative structure than anybody else. I think certainly the legislature should have the power to veto any proposal that is not in the public interest, but I do not think that this should be made easy, and I think it is not too difficult by requiring a majority of both houses. 2 Official Record, Constitutional Convention 1961, p 1846. Delegate Binkowski followed, saying: However, I think basically the reason for having this form is to place the responsibility with the executive, who should know all about these administrative agencies, and to allow him to initiate the programs, and therefore present them to the legislature. I think the reason for executive reorganization is simply economy and efficiency in government. If you are going to go ahead, as we have done, and give the executive the responsibility of lowering appropriations, then I think you have to give him the responsibility in this area of his executive departments, so that he can eliminate or consolidate in the best interests of the state. [T]he legislature does appropriate funds, so that if they are unhappy with any extension of power, so called power by the governor, if the governor should create a new agency which they are dissatisfied with, they can effectively reduce the effectiveness of that organization. [ Emphasis added.] 2 Official Record, Constitutional Convention 1961, p 1848. As the Supreme Court pointed out in Soap & Detergent Association, supra, it held in McDonald, supra, that the Executive Organization Act, supra, is the enabling act of art 5, Sec. 2. In the Executive Organization Act the Legislature has provided that: [A] type III transfer means the abolishing of an existing department, board, commission or agency.... [Emphasis added.] MCL 16.103(c); MSA 3.29(3)(c). It is my opinion, therefore, that the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish or eliminate boards and commissions. Further, the Legislature has provided in the Executive Organization Act the procedure to be followed in doing so. Such action is, of course, subject to the Legislature's right to disapprove an executive order doing so. Frank J. Kelley Attorney General http://opinion/datafiles/1990s/op06675.htm State of Michigan, Department of Attorney General Last Updated 11/10/2008 16:49:34 ------------------------------------------------------------------------------ _______________________________________________ Blind-Democracy mailing list Blind-Democracy at octothorp.org http://www.octothorp.org/mailman/listinfo/blind-democracy -------------------------------------------------------------------------------- _______________________________________________ Blind-Democracy mailing list Blind-Democracy at octothorp.org http://www.octothorp.org/mailman/listinfo/blind-democracy -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sun Jul 15 22:23:00 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sun, 15 Jul 2012 18:23:00 -0400 Subject: [Vendorsmi] lara can't legally steal vr funds Message-ID: <74E11F5546064C46AF777A0318D226B0@YOUR7C60552B9E> July 15 2012 More Comments and More Violations in State Plan Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: D. Gaston via internet All, I quote from Executive Order 2012-10: ? Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement of the Director of the Commission for the Blind are transferred to the Director of the Department of Licensing and Regulatory Affairs. ? These are clearly non-delegable authorities to non VR entity under the Rehabilitation Act and are an invalid exercise of the Designated State Agency cited in: ?TECHNICAL ASSISTANCE CIRCULAR RSA-TAC-12-03 DATE: April 16, 2012 ? Specifically here: ?In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). ? Bottom line here is that the entire MCB State Plan and the Executive Order creating it are an invalid abuse of federal law and an open knowing misappropriation of federal VR funds to a non-vocational entity (DSA/LARA). Sincerely Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: MPAS Cc: MRC Cc: NFB, ACB Cc: RSA Cc: several -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Tue Jul 17 11:57:16 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 17 Jul 2012 07:57:16 -0400 Subject: [Vendorsmi] some future eh Message-ID: <3860CB03C09C45D6893A2A8EA85668FA@YOUR7C60552B9E> Looking Into My Crystal Ball Ladies and Gentlemen of NFB and ACB and those who are blind: If the current MCB plan and EO 2012-10 goes through as is then let?s look in to the crystal ball for the future of blind people here. The theft of business enterprise locations won?t be a worry. Why? There won?t be any. We won?t have to worry about getting calls back in two years, because they won?t come in your lifetime. Eventually the Michigan Commission for the Blind Training Center will be shut down and sold to some other entity for some other purpose just like the Michigan School for the Blind was. Oh they might promise that the state will put proceeds in a trust to provide in home itinerate training services, but we know what happened with similar promises concerning the blind trust. So no blindness skills training for you. No travel instruction, Braille or assistive technology for the newly blind. No jobs either. Oh likely no state library services either (I almost forgot that). Don?t worry blind people don?t need to learn those things like reading and writing and getting around in the world. Don?t worry you cute little pets and pawns. This is just a glimpse in to the future for blind people here in Michigan. Oh, some will have some appointments to a worthless advisory committee for awhile serving at the pleasure of the Governor. It might even have a closed meeting or two funded by Mike Zimmer. He hasn?t decided how he?ll use all the federal Vocational Rehabilitation money yet. Isn?t the handful of sellouts grateful though at how he talked with you in the past and assured you like good little boys and girls not to worry, because everything will be all right? I mean they are professional bureaucrats after all. Trust them. They know what they are doing. If you don?t believe them then just ask them. Oh, for the staff of MCB or the bulk of it except for the higher ups you should be getting your resumes in order, or you might just wish to check in to the status of your retirement Don?t worry about Pat Cannon though. He ain?t going nowhere as they say. He?ll be a king without a country: a King without pawns, and he will still be the proverbial naked emporor. But, he?ll no longer have anyone to say how beautiful his clothes are. Joe Harcz -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 10:49:47 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 06:49:47 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <143D90E925074DDCACB80E0120BC06E9@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Haynes, Carla (LARA) Sent: Wednesday, July 18, 2012 6:48 AM Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory By the way there is nothing in an equipment inventory to redact! Sincerely, Paul Joseph Harcz, Jr. cc: several ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 11:43:18 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 07:43:18 -0400 Subject: [Vendorsmi] important revisions here but still applies Message-ID: Commentary on Violations of Executive Organization Act with AG Opinion July 14, 2012 This Michigan Attorney General Opinion and cases are binding. This is very important to note that a Commission such as the Commission for the Blind enacted Under PA 260 can only be abolished with a Type III Transfer. Yet in Executive Order 2012-10 the Governor abolishes the Commission and the Act with a Type II Transfer to itself. It is clear the intent of this is to abolish Public Act 260 which establishes the Michigan Commission for the Blind as well as abolishing the roll of the board of MCB along with its policy making and quasi-judicial powers. That is beyond the statutory authority of The Executive Organization Act itself which gives all Michigan Governors rather broad authorities, but not this broad! Actually as all case law shows the Michigan Constitution of 1963 is not ?self executing?. What executes it in these regards is The Executive Organization Act of 1965. Thus EO 2012-10 and all actions flowing from it violated statute on its face and indeed violated the Michigan Constitution itself by exceeding authorities granted to any Michigan Governor through that statute. This is black letter law! Sincerely, Joe Harcz Opinion #6675 The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6675 February 19, 1991 GOVERNOR: Authority to abolish boards and commissions under Const 1963, art 5, Sec. 2 CONSTITUTIONAL LAW: Authority of Governor to abolish boards and commissions under Const 1963, art 5, Sec. 2 The people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions subject to legislative disapproval. Honorable John Engler Governor of Michigan The Capitol Lansing, Michigan You have sought my opinion regarding your authority as Governor to make changes both in the organization of the executive branch and in the assignment of functions within executive branch departments and agencies. Specifically, you have asked whether the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions. Const 1963, art 5, Sec. 2, provides in its second paragraph: Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor. In the Address to the People, the Constitutional Convention commented regarding this provision as follows: The section ... would retain in the hands of the legislature and the governor considerable discretion as to internal organization within principal departments. The initial allocation of departments (see Schedule and Temporary Provisions) is left to the legislature.... Subsequently, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. These changes become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature. 2 Official Record, Constitutional Convention 1961, pp 3378-3379. In Soap & Detergent Association v Natural Resources Commission, 415 Mich 728, 330 NW2d 346 (1982), the Michigan Supreme Court considered at length the Governor's authority to transfer powers between executive agencies. At issue was the Governor's authority to transfer the rulemaking power to further restrict the nutrient content of cleaning agents from the Water Resources Commission, where it had been placed by the Legislature, to the Natural Resources Commission. The Court stated: The constitutional provision of art 5, Sec. 2, was given effect in 1965 when the Legislature enacted the Executive Organization Act, MCL 16.101 et seq; MSA 3.29(1) et seq. The act established 19 principal departments and made the initial allocation of functions among the d partments. [O]n various occasions, the Governor has utilized his power to issue executive reorganization orders. [ Id., pp 742-743.] The record of the constitutional convention indicates that the convention's purpose in including art 5, Sec. 2, was to facilitate economy and efficiency in the executive agencies. 2 Official Record, Constitutional Convention 1961, p 1847 (comments of Mr. Pollock); p 1836 (comments of Mr. Martin); p 1837 (Comments of Mr. Bentley). The convention felt that the Legislature previously had failed to effectuate a reorganization itself, and that the Governor was in the best position to accomplish the desired ends, having intimate knowledge of the problems. 2 Official Record, Constitutional Convention 1961, p 1846 (comment of Mr. Pollock). The convention recognized that the reorganization power granted the Governor in p 2 of art 5, Sec. 2, was clearly legislative. 2 Official Record, Constitutional Convention 1961, p 1846 (comments of Mr. Heideman and Mr. Hutchinson). [ footnote omitted] Nonetheless, the delegates chose to include this delegation to the Governor in the constitution, subject to vigorously debated checks deemed necessary to restrain the broad grant of power. 2 Official Record, Constitutional Convention 1961, pp 1843-1854. [T]he convention's purpose ... was to grant the Governor full legislative power to promote the most efficient possible executive department. [ Id., pp 745-747.] Further support for the logic of this interpretation of the constitution is found in the Executive Organization Act. In McDonald v Schnipke, 380 Mich 14, 26; 155 NW2d 169 (1968), this Court held that art 5, Sec. 2, of the constitution was not self-executing, but that the Executive Organization Act served as the enabling act of that provision. [ footnote omitted] The Executive Organization Act establishes 19 principal departments. The act also provides a general mechanism for placing existing agencies into the framework of the 19 principal departments. Three types of transfers could be effectuated. [ Id., p 748.] Under a Type III transfer, the agency is abolished. MCL 16.103(c); MSA 3.29(3)(c). [ Id., p 749.] No specific considerations are provided in the Executive Organization Act for the art 5, Sec. 2, activities--the subsequent reallocations by the Governor. Yet in McDonald this Court held that the act was the implementing legislation for the constitutional section. The fair implication of this interpretation is that the Governor, in exercising his powers, should use the transfer mechanism established in the Executive Organization Act, i.e., the provisions regarding Type I through Type III transfers and the relationship between the departments and the transferred agencies. [ Id., p 750.] The Court then considered the argument that if the Governor has the power to reorganize the executive branch such power would violate the doctrine of separation of powers by commingling executive and legislative functions within the executive branch. The Court held: [W]hile art 3, Sec. 2, of the constitution provides for strict separation of power, [footnote omitted] this has not been interpreted to mean that the branches must be kept wholly separate. [ citations omitted] Additionally, where, as in art 5, Sec. 2, the constitution explicitly grants powers of one branch to another, there can be no separation of powers problem. [ citation omitted] Article 5, Sec. 2, does not by any means vest "all"' or any considerable legislative power in the executive. While it is true that broad legislative power has been delegated to the Governor to effectuate executive reorganization, this power is clearly limited. Three limitations must be emphasized. First, the area of executive exercise of legislative power is very limited and specific. Second, the executive branch is not the sole possessor of this power; the Legislature has concurrent power to transfer functions and powers of the executive agencies. Third, the Legislature is specifically granted the power to veto executive reorganization orders before they become law. Therefore, the specific intent of the constitutional convention in fashioning art 5, Sec. 2, having been to delegate a very limited and specific legislative power to the executive, and this provision having been adopted into the constitution with sufficient checks to restrain an improper exercise of this power, we find no constitutional infirmity negating the Governor's ability to transfer rulemaking authority from one agency to that agency's department head. [ Id., pp 752-753.] As the Supreme Court opinion, in n 10, p 746, states: The nature and extent of the power granted to the Governor in art 5, Sec. 2, was most thoroughly discussed by the convention in the context of what restraints should be placed upon the Governor's exercise of the power. In fact, there was an effort made to reduce the Governor's reorganization authority by giving both the House and the Senate the individual power to veto an executive order issued pursuant to art 5, Sec. 2. Delegate Hutchinson spoke to the "tremendous political power"' the Governor would possess under art 5, Sec. 2: Whoever has the power by an executive order to organize and to rearrange the departments of his government to suit his will has a tremendous political power, because if, for instance, a particular function is being carried on in one department in a way which doesn't suit the governor and still he doesn't think it politically wise, you know, to remove the head of the department or anything, he can, by a reorganization plan, simply take that function which is being performed in a manner not suitable to him out of that department and place it someplace else. That is a tremendous political power. 2 Official Record, Constitutional Convention 1961, p 1844. Delegate Pollock, speaking on this same issue, said: [T]he governor is in a much better position to know what is needed within his own administrative structure than anybody else. I think certainly the legislature should have the power to veto any proposal that is not in the public interest, but I do not think that this should be made easy, and I think it is not too difficult by requiring a majority of both houses. 2 Official Record, Constitutional Convention 1961, p 1846. Delegate Binkowski followed, saying: However, I think basically the reason for having this form is to place the responsibility with the executive, who should know all about these administrative agencies, and to allow him to initiate the programs, and therefore present them to the legislature. I think the reason for executive reorganization is simply economy and efficiency in government. If you are going to go ahead, as we have done, and give the executive the responsibility of lowering appropriations, then I think you have to give him the responsibility in this area of his executive departments, so that he can eliminate or consolidate in the best interests of the state. [T]he legislature does appropriate funds, so that if they are unhappy with any extension of power, so called power by the governor, if the governor should create a new agency which they are dissatisfied with, they can effectively reduce the effectiveness of that organization. [ Emphasis added.] 2 Official Record, Constitutional Convention 1961, p 1848. As the Supreme Court pointed out in Soap & Detergent Association, supra, it held in McDonald, supra, that the Executive Organization Act, supra, is the enabling act of art 5, Sec. 2. In the Executive Organization Act the Legislature has provided that: [A] type III transfer means the abolishing of an existing department, board, commission or agency.... [Emphasis added.] MCL 16.103(c); MSA 3.29(3)(c). It is my opinion, therefore, that the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish or eliminate boards and commissions. Further, the Legislature has provided in the Executive Organization Act the procedure to be followed in doing so. Such action is, of course, subject to the Legislature's right to disapprove an executive order doing so. Frank J. Kelley Attorney General http://opinion/datafiles/1990s/op06675.htm State of Michigan, Department of Attorney General Last Updated 11/10/2008 16:49:34 _______________________________________________ nfbmi-talk mailing list nfbmi-talk at nfbnet.org http://nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org To unsubscribe, change your list options or get your account info for nfbmi-talk: http://nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 13:28:27 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 09:28:27 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <0D185294A0D74F2ABFAE8209309A355F@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: elamb at audgen.michigan.gov Sent: Wednesday, July 18, 2012 9:24 AM Subject: Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory ----- Original Message ----- From: joe harcz Comcast To: Farmer, Mel (LARA) Sent: Wednesday, July 18, 2012 9:22 AM Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Again equipment are not personal or confidential information under the FOIA. This is ludicrous and clearly a smoke screen. But I thank you for this and so will the AuditorGeneral's Office, as well as will the media, and I think the Office of Inspector General at the U.S. Department of Education will be real interested as well as they purchase the equipment at issue which this agency doesn't seem to know where it is. Sincerely, Paul Joseph Harcz, Jr. cc: several ----- Original Message ----- From: Farmer, Mel (LARA) To: 'joe harcz Comcast' ; Haynes, Carla (LARA) Cc: Cannon, Patrick (LARA) ; Haynes, Carla (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) ; Luzenski, Sue (LARA) Sent: Wednesday, July 18, 2012 8:26 AM Subject: RE: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory The records in question would first have to be examined to determine that there are no redactions. ------------------------------------------------------------------------------ From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, July 18, 2012 6:49 AM To: Haynes, Carla (LARA) Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory By the way there is nothing in an equipment inventory to redact! Sincerely, Paul Joseph Harcz, Jr. cc: several ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 13:23:31 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 09:23:31 -0400 Subject: [Vendorsmi] Fw: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Message-ID: <589A1F5194AA4BDC92C2B8A55000BC22@YOUR7C60552B9E> ----- Original Message ----- From: joe harcz Comcast To: Farmer, Mel (LARA) Sent: Wednesday, July 18, 2012 9:22 AM Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory Again equipment are not personal or confidential information under the FOIA. This is ludicrous and clearly a smoke screen. But I thank you for this and so will the AuditorGeneral's Office, as well as will the media, and I think the Office of Inspector General at the U.S. Department of Education will be real interested as well as they purchase the equipment at issue which this agency doesn't seem to know where it is. Sincerely, Paul Joseph Harcz, Jr. cc: several ----- Original Message ----- From: Farmer, Mel (LARA) To: 'joe harcz Comcast' ; Haynes, Carla (LARA) Cc: Cannon, Patrick (LARA) ; Haynes, Carla (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) ; Luzenski, Sue (LARA) Sent: Wednesday, July 18, 2012 8:26 AM Subject: RE: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory The records in question would first have to be examined to determine that there are no redactions. ------------------------------------------------------------------------------ From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, July 18, 2012 6:49 AM To: Haynes, Carla (LARA) Subject: Re: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory By the way there is nothing in an equipment inventory to redact! Sincerely, Paul Joseph Harcz, Jr. cc: several ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Zanger, Connie (LARA) ; Hull, James (LARA) ; Duell, Elsie (LARA) Sent: Thursday, July 12, 2012 4:45 PM Subject: Amended FOIA Response to Request Dated 6-20-12 - BEP Equipment Inventory July 12, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended FOIA Response on BEP Equipment Inventory Dear Mr. Harcz, Jr.: This letter is an amended response to your June 20, 2012, email request for copies of public records, received on June 21, 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 as described in your email, a copy of which is below. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request. As to the denied portion of your request (email dated 7-10-11) even though under the state's FOIA, MCL 15.233, Section 3(4) & 3(5) we are not required to make a compilation, summary, or report of information, in the spirit of cooperation, if you wish, the MCB will compile an accessible spreadsheet report that is generated from the Business Enterprise System (System 7) data base. 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 FOIA - P.J. Harcz, Jr. July 12, 2012 Page 2 of 2 estimates that a minimum of 20 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 $502.00. This estimate includes the labor time for creating the spreadsheet along with the research, retrieval and redaction time/costs for approximately 1500 documents relative to equipment transfers and disposals. 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 good faith deposit of $251.00, which is one-half of the total estimated $502.00. See the attached Invoice Calculations illustrating estimated costs and payment instructions. Under MCL 15.240 of the state's FOIA, you may, (1) submit a written appeal regarding the denial of any portion of your FOIA request to Mr. Steven H. Hilfinger, Director, Michigan Department of Licensing and Regulatory Affairs, Attention: Mike Zimmer, Chief Deputy Director, Ottawa Building, 4th Floor, P.O. Box 30004, Lansing, MI 48909. Your appeal notice must include the word "appeal" and identify the reason(s) for reversal of the disclosure denial(s); or (2), you may seek judicial action in circuit court to compel disclosure within 180 days of the Department's final determination. If you prevail in court action, the court may award you reasonable attorney fees, costs, and disbursements. If the court finds the Department's actions to be arbitrary and capricious, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 6-20-12 2. Invoice (2 pages) cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Constance Zanger James Hull From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Wednesday, June 20, 2012 1:28 PM To: Cannon, Patrick (LARA) Cc: Luzenski, Sue (LARA); MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Craig McManus RSA; Larry Posont MCB Comm.; Joe Sibley MCBVI Pres.; lydia Schuck MCB Comm.; John Scott MCB Comm.; Vendorsmi at nfbnet.org; nfbmi-talk at nfbnet.org; James Chaney EOC; Hazell Brooks Subject: send me the inventory now! Request Cannon June 20, 2012 Accountability Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 E-mail: joeharcz at comcast.net Re: Equipment inventory To: Patrick D. Cannon Director, Michigan commission for the Blind (Via e-mail) Dear Mr. Cannon I'm writing to you as the Director of the Michigan commission for the Blind to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff. Certainly it is your and others obligations to account to for who, what, when where and why and how or federally taxpayer funded stuff is! This isn't rocket sconce sir. It is a matter of accounting and accountability for where and how our taxpayer's monies are accounted for. You are paid in excess of $125,000 per year to in part know just where this stuff is. Your job description also requires that you ensure subordinates like Zanger and Hull and Promotional Agents know where our stuff is. Yet, no one knows where anything is apparently. Also this goes to the ggross dereliction of ongoing duties by PA, Josh Hoskins and his superiors including yourself in the loss of a $7,000 snack machine at he "Holt Rest Area" demolished or otherwise lost do to dereliction of known duties and that has not been responded to and there is no accountability for this or other actions/inactions by you, the boss. What gives here? Send me this inventory stuff in accessable format which is to send it to me as Word attachments/and/or plain text enclosures to my e-mail adress listed above pursuent to obligations under the Rehabilitation Act of which you are well aware and title II of the ADA. Do it now. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: EOC Cc: RSA Cc: Mike Zimmer, LARA Cc: MCBVI Cc: NFB MI CC: several 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.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 REQUEST RECEIVED: June 20, 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: "to remit all spreadsheets, and other data related to the MCB's Equipment Inventory that is a required and ongoing obligation of your and the BEP staff." INVOICE CALCULATIONS LABOR Locating and Duplicating Cost: Number of Hours: 17 times Hourly Rate: $25.10 = Amount: $426.70 Examining and Extracting Cost: Number of Hours: 3 times Hourly Rate: $25.10 = Amount: $75.30 TOTAL LABOR: $502.00 POSTAGE (estimate): $0 DUPLICATING: Number of Pages times Copying Rate of $.25 $0 OTHER (overtime, audio tapes, discs, photos, security, etc.): $0 SUBTOTAL: $502.00 Less waived indigency fee under FOIA Act MCL 15.234 Section 4(1) $0 (not requested) INVOICE TOTAL: $502.00 DEPOSIT* $251.00 BALANCE TO BE PAID: $251.00 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 -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 15:50:36 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 11:50:36 -0400 Subject: [Vendorsmi] its the constitution silly Message-ID: <997D023492F54636B0CD50F3C22A0577@YOUR7C60552B9E> Memo with Tennessee v Lane including the case July 18 2012 To whom it may concern: People with disabilities have the right to access the state and local courts in a meaningful way. Yet our courts for the most part are not accessible to people who use wheelchairs or those with sensory disabilities including the blind. This is shown clearly in Richard Bernstein?s suit against Cadillac Place as the courts are a component there. In addition the effective communications requirements of the blind in the ADA and 504 are routinely denied and in documented fashion to blind folks in the Michigan Administrative Hearing System run by Michael Zimmer who has assumed non-delegable authorities as the Designated State Agency for the blind illegally and who unilaterally ripped up the role of the commission for the blind board under PA 260 to make final agency determinations for the State Licensing Agency. These are fundamental and documented violations of the constitutional rights of individuals and the class to ?due process and equal protection under the law? granted to all citizens under Article V of the 14th Amendment and granted to people with disabilities including the blind through the ADA and Section 504 of the Rehabilitation Act of 1973. In other words MAHS is not immune somehow from the ADA, 504 or this United States Supreme Court decision though Mr. Zimmer seems to think he is above the law: (As do all our state and local courts and quasi-judicial bodies) Joe 2004 WL 1085482 (U.S.) TENNESSEE, PETITIONER v. GEORGE LANE et al. No. 02-1667 United States Supreme Court. Argued January 13, 2004 Decided May 17, 2004 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. Respondent paraplegics filed this action for damages and equitable relief, alleging that Tennessee and a number of its counties had denied them physical access to that State's courts in violation of Title II of the Americans with Disabilities Act of 1990 (ADA), which provides: '[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation or denied the benefits of the services, programs or activities of a public entity,' 42 U. S. C. ?12132. After the District Court denied the State's motion to dismiss on Eleventh Amendment immunity grounds, the Sixth Circuit held the appeal in abeyance pending Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356. This Court later ruled in Garrett that the Eleventh Amendment bars private money damages actions for state violations of ADA Title I, which prohibits employment discrimination against the disabled. The en banc Sixth Circuit then issued its Popovich decision, in which it interpreted Garrett to bar private ADA suits against States based on equal protection principles, but not those relying on due process, and therefore permitted a Title II damages action to proceed despite the State's immunity claim. Thereafter, a Sixth Circuit panel affirmed the dismissal denial in this case, explaining that respondents' claims were not barred because they were based on due process principles. In response to a rehearing petition arguing that Popovich did not control because respondents' complaint did not allege due process violations, the panel filed an amended opinion, explaining that due process protects the right of access to the courts, and that the evidence before Congress when it enacted Title II established, inter alia, that physical barriers in courthouses and courtrooms have had the effect of denying disabled people the opportunity for such access. Held: As it applies to the class of cases implicating the fundamental right of access to the courts, Title II constitutes a valid exercise of Congress' authority under ?5 of the Fourteenth Amendment to enforce that Amendment's substantive guarantees. Pp. 4-23. (a) Determining whether Congress has constitutionally abrogated a State's Eleventh Amendment immunity requires resolution of two predicate questions: (1) whether Congress unequivocally expressed its intent to abrogate; and (2), if so, whether it acted pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73. The first question is easily answered here, since the ADA specifically provides for abrogation. See ?12202. With regard to the second question, Congress can abrogate state sovereign immunity pursuant to a valid exercise of its power under ?5 of the Fourteenth Amendment. E.g., Fitzpatrick v. Bitzer, 427 U. S. 445, 456. That power is not, however, unlimited. While Congress must have a wide berth in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a 'substantive change in the governing law.' City of Boerne v. Flores, 521 U. S. 507, 519. In Boerne, the Court set forth the test for distinguishing between permissible remedial legislation and unconstitutional substantive redefinition: Section 5 legislation is valid if it exhibits 'a congruence and proportionality' between an injury and the means adopted to prevent or remedy it. Id., at 520. Applying the Boerne test in Garrett, the Court concluded that ADA Title I was not a valid exercise of Congress' ?5 power because the historical record and the statute's broad sweep suggested that Title I's true aim was not so much enforcement, but an attempt to 'rewrite' this Court's Fourteenth Amendment jurisprudence. 531 U. S., at 372-374. In view of significant differences between Titles I and II, however, Garrett left open the question whether Title II is a valid exercise of Congress' ?5 power, id., at 360, n. 1. Pp. 5-10. (b) Title II is a valid exercise of Congress' ?5 enforcement power. Pp. 11- 23. (1) The Boerne inquiry's first step requires identification of the constitutional rights Congress sought to enforce when it enacted Title II. Garrett, 531 U. S., at 365. Like Title I, Title II seeks to enforce the Fourteenth Amendment's prohibition on irrational disability discrimination, Garrett, 531 U. S., at 366. But it also seeks to enforce a variety of other basic constitutional guarantees, including some, like the right of access to the courts here at issue, infringements of which are subject to heightened judicial scrutiny. See, e.g., Dunn v. Blumstein, 405 U. S. 330, 336-337. Whether Title II validly enforces such constitutional rights is a question that 'must be judged with reference to the historical experience which it reflects.' E.g., South Carolina v. Katzenbach, 383 U. S. 301, 308. Congress enacted Title II against a backdrop of pervasive unequal treatment of persons with disabilities in the administration of state services and programs, including systematic deprivations of fundamental rights. The historical experience that Title II reflects is also documented in the decisions of this and other courts, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of public programs and services. With respect to the particular services at issue, Congress learned that many individuals, in many States, were being excluded from courthouses and court proceedings by reason of their disabilities. A Civil Rights Commission report before Congress showed that some 76% of public services and programs housed in state-owned buildings were inaccessible to and unusable by such persons. Congress also heard testimony from those persons describing the physical inaccessibility of local courthouses. And its appointed task force heard numerous examples of their exclusion from state judicial services and programs, including failure to make courtrooms accessible to witnesses with physical disabilities. The sheer volume of such evidence far exceeds the record in last Term's Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 728-733, in which the Court approved the family-care leave provision of the Family and Medical Leave Act of 1993 as valid ?5 legislation. Congress' finding in the ADA that 'discrimination against individuals with disabilities persists in such critical areas as ... access to public services,' ?12101(a)(3), together with the extensive record of disability discrimination that underlies it, makes clear that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation. Pp. 11-18. (2) Title II is an appropriate response to this history and pattern of unequal treatment. Unquestionably, it is valid ?5 legislation as it applies to the class of cases implicating the accessibility of judicial services. Congress' chosen remedy for the pattern of exclusion and discrimination at issue, Title II's requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The long history of unequal treatment of disabled persons in the administration of judicial services has persisted despite several state and federal legislative efforts to remedy the problem. Faced with considerable evidence of the shortcomings of these previous efforts, Congress was justified in concluding that the difficult and intractable problem of disability discrimination warranted added prophylactic measures. Hibbs, 538 U. S., at 737. The remedy Congress chose is nevertheless a limited one. Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. ?12132. But Title II does not require States to employ any and all means to make judicial services accessible or to compromise essential eligibility criteria for public programs. It requires only 'reasonable modifications' that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. Ibid. Title II's implementing regulations make clear that the reasonable modification requirement can be satisfied in various ways, including less costly measures than structural changes. This duty to accommodate is perfectly consistent with the well-established due process principle that, within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard in its courts. Boddie, 401 U. S., at 379. A number of affirmative obligations flow from this principle. Cases such as Boddie, Griffin v. Illinois, 351 U. S. 12, and Gideon v. Wainwright, 372 U. S. 335, make clear that ordinary considerations of cost and convenience alone cannot justify a State's failure to provide individuals with a meaningful right of access to the courts. Judged against this backdrop, Title II's affirmative obligation to accommodate is a reasonable prophylactic measure, reasonably targeted to a legitimate end. Pp. 18-23. 315 F. 3d 680, affirmed. STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which GINSBURG, J., joined. GINSBURG, J., filed a concurring opinion, in which SOUTER and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined. SCALIA, J., and THOMAS, J., filed dissenting opinions. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JUSTICE STEVENS delivered the opinion of the Court. Title II of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 337, 42 U. S. C. ??12131-12165, provides that 'no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.' ?12132. The question presented in this case is whether Title II exceeds Congress' power under ?5 of the Fourteenth Amendment. I In August 1998, respondents George Lane and Beverly Jones filed this action against the State of Tennessee and a number of Tennessee counties, alleging past and ongoing violations of Title II. Respondents, both of whom are paraplegics who use wheelchairs for mobility, claimed that they were denied access to, and the services of, the state court system by reason of their disabilities. Lane alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom; he consequently was arrested and jailed for failure to appear. Jones, a certified court reporter, alleged that she has not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in the judicial process. Respondents sought damages and equitable relief. The State moved to dismiss the suit on the ground that it was barred by the Eleventh Amendment. The District Court denied the motion without opinion, and the State appealed. [FN1] The United States intervened to defend Title II's abrogation of the States' Eleventh Amendment immunity. On April 28, 2000, after the appeal had been briefed and argued, the Court of Appeals for the Sixth Circuit entered an order holding the case in abeyance pending our decision in Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001). In Garrett, we concluded that the Eleventh Amendment bars private suits seeking money damages for state violations of Title I of the ADA. We left open, however, the question whether the Eleventh Amendment permits suits for money damages under Title II. Id., at 360, n. 1. Following the Garrett decision, the Court of Appeals, sitting en banc, heard argument in a Title II suit brought by a hearing-impaired litigant who sought money damages for the State's failure to accommodate his disability in a child custody proceeding. Popovich v. Cuyahoga County Court, 276 F. 3d 808 (CA6 2002). A divided court permitted the suit to proceed despite the State's assertion of Eleventh Amendment immunity. The majority interpreted Garrett to bar private ADA suits against States based on equal protection principles, but not those that rely on due process principles. 276 F. 3d, at 811-816. The minority concluded that Congress had not validly abrogated the States' Eleventh Amendment immunity for any Title II claims, id., at 821, while the concurring opinion concluded that Title II validly abrogated state sovereign immunity with respect to both equal protection and due process claims, id., at 818. Following the en banc decision in Popovich, a panel of the Court of Appeals entered an order affirming the District Court's denial of the State's motion to dismiss in this case. Judgt. order reported at 40 Fed. Appx. 911 (CA6 2002). The order explained that respondents' claims were not barred because they were based on due process principles. In response to a petition for rehearing arguing that Popovich was not controlling because the complaint did not allege due process violations, the panel filed an amended opinion. It explained that the Due Process Clause protects the right of access to the courts, and that the evidence before Congress when it enacted Title II 'established that physical barriers in government buildings, including courthouses and in the courtrooms themselves, have had the effect of denying disabled people the opportunity to access vital services and to exercise fundamental rights guaranteed by the Due Process Clause.' 315 F. 3d 680, 682 (CA6 2003). Moreover, that 'record demonstrated that public entities' failure to accommodate the needs of qualified persons with disabilities may result directly from unconstitutional animus and impermissible stereotypes.' Id., at 683. The panel did not, however, categorically reject the State's submission. It instead noted that the case presented difficult questions that 'cannot be clarified absent a factual record,' and remanded for further proceedings. Ibid. We granted certiorari, 539 U. S. 941 (2003), and now affirm. II The ADA was passed by large majorities in both Houses of Congress after decades of deliberation and investigation into the need for comprehensive legislation to address discrimination against persons with disabilities. In the years immediately preceding the ADA's enactment, Congress held 13 hearings and created a special task force that gathered evidence from every State in the Union. The conclusions Congress drew from this evidence are set forth in the task force and Committee Reports, described in lengthy legislative hearings, and summarized in the preamble to the statute. [FN2] Central among these conclusions was Congress' finding that 'individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.' 42 U. S. C. ?12101(a)(7). Invoking 'the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce,' the ADA is designed 'to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.' ??12101(b)(1), (b)(4). It forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III. Title II, ??12131-12134, prohibits any public entity from discriminating against 'qualified' persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term 'public entity' to include state and local governments, as well as their agencies and instrumentalities. ?12131(1). Persons with disabilities are 'qualified' if they, 'with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.' ?12131(2). Title II's enforcement provision incorporates by reference ?505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U. S. C. ?794a, which authorizes private citizens to bring suits for money damages. 42 U. S. C. ?12133. III The Eleventh Amendment renders the States immune from 'any suit in law or equity, commenced or prosecuted ... by Citizens of another State, or by Citizens or Subjects of any Foreign State.' Even though the Amendment 'by its terms ... applies only to suits against a State by citizens of another State,' our cases have repeatedly held that this immunity also applies to unconsented suits brought by a State's own citizens. Garrett, 531 U. S., at 363; Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000). Our cases have also held that Congress may abrogate the State's Eleventh Amendment immunity. To determine whether it has done so in any given case, we 'must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.' Id., at 73. The first question is easily answered in this case. The Act specifically provides: 'A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.' 42 U. S. C. ?12202. As in Garrett, see 531 U. S., at 363-364, no party disputes the adequacy of that expression of Congress' intent to abrogate the States' Eleventh Amendment immunity. The question, then, is whether Congress had the power to give effect to its intent. In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we held that Congress can abrogate a State's sovereign immunity when it does so pursuant to a valid exercise of its power under ?5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment. Id., at 456. This enforcement power, as we have often acknowledged, is a 'broad power indeed.' Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732 (1982), citing Ex parte Virginia, 100 U. S. 339, 346 (1880). [FN3] It includes 'the authority both to remedy and to deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.' Kimel, 528 U. S., at 81. We have thus repeatedly affirmed that 'Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.' Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 727-728 (2003). See also City of Boerne v. Flores, 521 U. S. 507, 518 (1997). [FN4] The most recent affirmation of the breadth of Congress' ?5 power came in Hibbs, in which we considered whether a male state employee could recover money damages against the State for its failure to comply with the family-care leave provision of the Family and Medical Leave Act of 1993 (FMLA), 107 Stat. 6, 29 U. S. C. ?2601 et seq. We upheld the FMLA as a valid exercise of Congress' ?5 power to combat unconstitutional sex discrimination, even though there was no suggestion that the State's leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional under the rule of Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979). When Congress seeks to remedy or prevent unconstitutional discrimination, ?5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause. Congress' ?5 power is not, however, unlimited. While Congress must have a wide berth in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a 'substantive change in the governing law.' Boerne, 521 U. S., at 519. In Boerne, we recognized that the line between remedial legislation and substantive redefinition is 'not easy to discern,' and that 'Congress must have wide latitude in determining where it lies.' Id., at 519-520. But we also confirmed that 'the distinction exists and must be observed,' and set forth a test for so observing it: Section 5 legislation is valid if it exhibits 'a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.' Id., at 520. In Boerne, we held that Congress had exceeded its ?5 authority when it enacted the Religious Freedom Restoration Act of 1993 (RFRA). We began by noting that Congress enacted RFRA 'in direct response' to our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), for the stated purpose of 'restor[ing]' a constitutional rule that Smith had rejected. 521 U. S., at 512, 515 (internal quotation marks omitted). Though the respondent attempted to defend the statute as a reasonable means of enforcing the Free Exercise Clause as interpreted in Smith, we concluded that RFRA was 'so out of proportion' to that objective that it could be understood only as an attempt to work a 'substantive change in constitutional protections.' Id., at 529, 532. Indeed, that was the very purpose of the law. This Court further defined the contours of Boerne's 'congruence and proportionality' test in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999). At issue in that case was the validity of the Patent and Plant Variety Protection Remedy Clarification Act (hereinafter Patent Remedy Act), a statutory amendment Congress enacted in the wake of our decision in Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985), to clarify its intent to abrogate state sovereign immunity from patent infringement suits. Florida Prepaid, 527 U. S., at 631-632. Noting the virtually complete absence of a history of unconstitutional patent infringement on the part of the States, as well as the Act's expansive coverage, the Court concluded that the Patent Remedy Act's apparent aim was to serve the Article I concerns of 'provid[ing] a uniform remedy for patent infringement and ... plac [ing] States on the same footing as private parties under that regime,' and not to enforce the guarantees of the Fourteenth Amendment. Id., at 647-648. See also Kimel, 528 U. S. 62 (finding that the Age Discrimination in Employment Act exceeded Congress' ?5 powers under Boerne); United States v. Morrison, 529 U. S. 598 (2000) (Violence Against Women Act). Applying the Boerne test in Garrett, we concluded that Title I of the ADA was not a valid exercise of Congress' ?5 power to enforce the Fourteenth Amendment's prohibition on unconstitutional disability discrimination in public employment. As in Florida Prepaid, we concluded Congress' exercise of its prophylactic ?5 power was unsupported by a relevant history and pattern of constitutional violations. 531 U. S., at 368, 374. Although the dissent pointed out that Congress had before it a great deal of evidence of discrimination by the States against persons with disabilities, id., at 379 (BREYER, J., dissenting), the Court's opinion noted that the 'overwhelming majority' of that evidence related to 'the provision of public services and public accommodations, which areas are addressed in Titles II and III,' rather than Title I, id., at 371, n. 7. We also noted that neither the ADA's legislative findings nor its legislative history reflected a concern that the States had been engaging in a pattern of unconstitutional employment discrimination. We emphasized that the House and Senate Committee Reports on the ADA focused on ' 'discrimination [in] ... employment in the private sector,' ' and made no mention of discrimination in public employment. Id., at 371-372 (quoting S. Rep. No. 101-116, p. 6 (1989), and H. R. Rep. No. 101-485, pt. 2, p. 28 (1990)) (emphasis in Garrett). Finally, we concluded that Title I's broad remedial scheme was insufficiently targeted to remedy or prevent unconstitutional discrimination in public employment. Taken together, the historical record and the broad sweep of the statute suggested that Title I's true aim was not so much to enforce the Fourteenth Amendment's prohibitions against disability discrimination in public employment as it was to 'rewrite' this Court's Fourteenth Amendment jurisprudence. 531 U. S., at 372-374. In view of the significant differences between Titles I and II, however, Garrett left open the question whether Title II is a valid exercise of Congress' ?5 enforcement power. It is to that question that we now turn. IV The first step of the Boerne inquiry requires us to identify the constitutional right or rights that Congress sought to enforce when it enacted Title II. Garrett, 531 U. S., at 365. In Garrett we identified Title I's purpose as enforcement of the Fourteenth Amendment's command that 'all persons similarly situated should be treated alike.' Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985). As we observed, classifications based on disability violate that constitutional command if they lack a rational relationship to a legitimate governmental purpose. Garrett, 531 U. S., at 366 (citing Cleburne, 473 U. S., at 446). Title II, like Title I, seeks to enforce this prohibition on irrational disability discrimination. But it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review. See, e.g., Dunn v. Blumstein, 405 U. S. 330, 336- 337 (1972); Shapiro v. Thompson, 394 U. S. 618, 634 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). These rights include some, like the right of access to the courts at issue in this case, that are protected by the Due Process Clause of the Fourteenth Amendment. The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant such as respondent Lane the 'right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.' Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The Due Process Clause also requires the States to afford certain civil litigants a 'meaningful opportunity to be heard' by removing obstacles to their full participation in judicial proceedings. Boddie v. Connecticut, 401 U. S. 371, 379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). We have held that the Sixth Amendment guarantees to criminal defendants the right to trial by a jury composed of a fair cross section of the community, noting that the exclusion of 'identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.' Taylor v. Louisiana, 419 U. S. 522, 530 (1975). And, finally, we have recognized that members of the public have a right of access to criminal proceedings secured by the First Amendment. Press--Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1, 8-15 (1986). Whether Title II validly enforces these constitutional rights is a question that 'must be judged with reference to the historical experience which it reflects.' South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). See also Florida Prepaid, 527 U. S., at 639-640; Boerne, 521 U. S., at 530. While ?5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent. 'Difficult and intractable problems often require powerful remedies,' Kimel, 528 U. S., at 88, but it is also true that '[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one,' Boerne, 521 U. S., at 530. It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, '[a]s of 1979, most States ... categorically disqualified 'idiots' from voting, without regard to individual capacity.' [FN5] The majority of these laws remain on the books, [FN6] and have been the subject of legal challenge as recently as 2001. [FN7] Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying [FN8] and serving as jurors. [FN9] The historical experience that Title II reflects is also documented in this Court's cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e.g., Jackson v. Indiana, 406 U. S. 715 (1972); the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo, 457 U. S. 307 (1982); [FN10] and irrational discrimination in zoning decisions, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985). The decisions of other courts, too, document a pattern of unequal treatment in the adminis- tration of a wide range of public services, programs, and activities, including the penal system, [FN11] public education, [FN12] and voting. [FN13] Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice. [FN14] This pattern of disability discrimination persisted despite several federal and state legislative efforts to address it. In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing laws that rendered them 'inadequate to address the pervasive problems of discrimination that people with disabilities are facing.' S. Rep. No. 101- 116, at 18. See also H. R. Rep. No. 101-485, pt. 2, at 47. [FN15] It also uncovered further evidence of those shortcomings, in the form of hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions. See Garrett, 531 U. S., at 379 (BREYER, J., dissenting). See also id., at 391 (App. C to opinion of BREYER, J., dissenting). As the Court's opinion in Garrett observed, the 'overwhelming majority' of these examples concerned discrimination in the administration of public programs and services. Id., at 371, n. 7; Government's Lodging in Garrett, O. T. 2000, No. 99-1240 (available in Clerk of Court's case file). With respect to the particular services at issue in this case, Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities. A report before Congress showed that some 76% of public services and programs housed in state-owned buildings were inaccessible to and unusable by persons with disabilities, even taking into account the possibility that the services and programs might be restructured or relocated to other parts of the buildings. U. S. Civil Rights Commission, Accommodating the Spectrum of Individual Abilities 39 (1983). Congress itself heard testimony from persons with disabilities who described the physical inaccessibility of local courthouses. Oversight Hearing on H. R. 4468 before the House Subcommittee on Select Education of the Committee on Education and Labor, 100th Cong., 2d Sess., 40-41, 48 (1988). And its appointed task force heard numerous examples of the exclusion of persons with disabilities from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local governments to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities in abuse cases, and failure to make courtrooms accessible to witnesses with physical disabilities. Government's Lodging in Garrett, O. T. 2000, No. 99-1240. See also Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment (Oct. 12, 1990). [FN16] Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent's contention that the record is insufficient to justify Congress' exercise of its prophylactic power is puzzling, to say the least. Just last Term in Hibbs, we approved the family- care leave provision of the FMLA as valid ?5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct. 538 U. S., at 728-733. [FN17] We explained that because the FMLA was targeted at sex-based classifications, which are subject to a heightened standard of judicial scrutiny, 'it was easier for Congress to show a pattern of state constitutional violations' than in Garrett or Kimel, both of which concerned legislation that targeted classifications subject to rational-basis review. 538 U. S., at 735-737. Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts at issue in this case, that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifications. And in any event, the record of constitutional violations in this case--including judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services--far exceeds the record in Hibbs. The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself: '[D]iscrimination against individuals with disabilities persists in such critical areas as ... education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.' 42 U. S. C. ?12101(a)(3) (emphasis added). This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation. V The only question that remains is whether Title II is an appropriate response to this history and pattern of unequal treatment. At the outset, we must determine the scope of that inquiry. Title II--unlike RFRA, the Patent Remedy Act, and the other statutes we have reviewed for validity under ?5--reaches a wide array of official conduct in an effort to enforce an equally wide array of constitutional guarantees. Petitioner urges us both to examine the broad range of Title II's applications all at once, and to treat that breadth as a mark of the law's invalidity. According to petitioner, the fact that Title II applies not only to public education and voting-booth access but also to seating at state-owned hockey rinks indicates that Title II is not appropriately tailored to serve its objectives. But nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole. [FN18] Whatever might be said about Title II's other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under ?5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid ?5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. See United States v. Raines, 362 U. S. 17, 26 (1960). [FN19] Congress' chosen remedy for the pattern of exclusion and discrimination described above, Title II's requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this 'difficult and intractable proble[m]' warranted 'added prophylactic measures in response.' Hibbs, 538 U. S., at 737 (internal quotation marks omitted). The remedy Congress chose is nevertheless a limited one. Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. 42 U. S. C. ?12131(2). But Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only 'reasonable modifications' that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. Ibid. As Title II's implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 CFR ?35.151 (2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. ?35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes. Ibid. And in no event is the entity required to undertake measures that would impose an undue financial or administrative burden, threaten historic preservation interests, or effect a fundamental alteration in the nature of the service. ??35.150(a)(2), (a)(3). This duty to accommodate is perfectly consistent with the well-established due process principle that, 'within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard' in its courts. Boddie, 401 U. S., at 379 (internal quotation marks and citation omitted). [FN20] Our cases have recognized a number of affirmative obligations that flow from this principle: the duty to waive filing fees in certain family-law and criminal cases, [FN21] the duty to provide transcripts to criminal defendants seeking review of their convictions, [FN22] and the duty to provide counsel to certain criminal defendants. [FN23] Each of these cases makes clear that ordinary considerations of cost and convenience alone cannot justify a State's failure to provide individuals with a meaningful right of access to the courts. Judged against this backdrop, Title II's affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be 'so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.' Boerne, 521 U. S., at 532; Kimel, 528 U. S., at 86. [FN24] It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end. For these reasons, we conclude that Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' ?5 authority to enforce the guarantees of the Fourteenth Amendment. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. FN1. In Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993), we held that 'States and state entities that claim to be 'arms of the State' may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity.' Id., at 147. FN2. See 42 U. S. C. ?12101; Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment 16 (Oct. 12, 1990); S. Rep. No. 101-116 (1989); H. R. Rep. No. 101-485 (1990); H. R. Conf. Rep. No. 101-558 (1990); H. R. Conf. Rep. No. 101-596 (1990); cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 389-390 (2001) (App. A to opinion of BREYER, J., dissenting) (listing congressional hearings). FN3. In Ex parte Virginia, we described the breadth of Congress' ?5 power as follows: 'Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' 100 U. S., at 345-346. See also City of Boerne v. Flores, 521 U. S. 507, 517-518 (1997). FN4. In Boerne, we observed: 'Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ' legislative spheres of autonomy previously reserved to the States.' Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U. S. Const., Amdt. 15, ?2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966), despite the facial constitutionality of the tests under Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States. South Carolina v. Katzenbach, supra (upholding several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, [384 U. S. 641 (1966)] (upholding ban on literacy tests that prohibited certain people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112 (1970) (upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v. United States, 446 U. S. 156, 161 (1980) (upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any change to a ' 'standard, practice, or procedure with respect to voting' '); see also James Everard's Breweries v. Day, 265 U. S. 545 (1924) (upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture, sale, or transportation of intoxicating liquors for beverage purposes).' Id., at 518. FN5. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 464, and n. 14 (1985) (Marshall, J., concurring in judgment in part and dissenting in part) (citing Note, Mental Disability and the Right to Vote, 88 Yale L. J. 1644 (1979)). FN6. See Schriner, Ochs, & Shields, Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley J. Emp. & Lab. L. 437, 456-472 tbl. II (2000) (listing state laws concerning the voting rights of persons with mental disabilities). FN7. See Doe v. Rowe, 156 F. Supp. 2d 35 (Me. 2001). FN8. E.g., D. C. Code ?46-403 (West 2001) (declaring illegal and void the marriage of 'an idiot or of a person adjudged to be a lunatic'); Ky. Rev. Stat. Ann. ?402.990(2) (West 1992 Cumulative Service) (criminalizing the marriage of persons with mental disabilities); Tenn. Code Ann. ?36-3-109 (1996) (forbidding the issuance of a marriage license to 'imbecile[s]'). FN9. E.g., Mich. Comp. Laws Ann. ?729.204 (West 2002) (persons selected for inclusion on jury list may not be 'infirm or decrepit'); Tenn. Code Ann. ?22-2-304(c) (1994) (authorizing judges to excuse 'mentally and physically disabled' persons from jury service). FN10. The undisputed findings of fact in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), provide another example of such mistreatment. See id., at 7 ('Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the 'habilitation' of the retarded'). FN11. E.g., LaFaut v. Smith, 834 F. 2d 389, 394 (CA4 1987) (paraplegic inmate unable to access toilet facilities); Schmidt v. Odell, 64 F. Supp. 2d 1014 (Kan. 1999) (double amputee forced to crawl around the floor of jail). See also, e.g., Key v. Grayson, 179 F. 3d 996 (CA6 1999) (deaf inmate denied access to sex offender therapy program allegedly required as precondition for parole). FN12. E.g., New York State Assn. for Retarded Children, Inc. v. Carey, 466 F. Supp. 487, 504 (EDNY 1979) (segregation of mentally retarded students with hepatitis B); Mills v. Board of Ed. of District of Columbia, 348 F. Supp. 866 (DC 1972) (exclusion of mentally retarded students from public school system). See also, e.g., Robertson v. Granite City Community Unit School District No. 9, 684 F. Supp. 1002 (SD Ill. 1988) (elementary-school student with AIDS excluded from attending regular education classes or participating in extracurricular activities); Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (CD Cal. 1986) (kindergarten student with AIDS excluded from class). FN13. E.g., Doe v. Rowe, 156 F. Supp. 2d 35 (Me. 2001) (disenfranchisement of persons under guardianship by reason of mental illness). See also, e.g., New York ex rel. Spitzer v. County of Delaware, 82 F. Supp. 2d 12 (NDNY 2000) (mobility-impaired voters unable to access county polling places). FN14. E.g., Ferrell v. Estelle, 568 F. 2d 1128, 1132-1133 (CA5) (deaf criminal defendant denied interpretive services), opinion withdrawn as moot, 573 F. 2d 867 (1978); State v. Schaim, 65 Ohio St. 3d 51, 64, 600 N. E. 2d 661, 672 (1992) (same); People v. Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d 426, 434 (Sup. Ct. 1984) (same). See also, e.g., Layton v. Elder, 143 F. 3d 469, 470-472 (CA8 1998) (mobility-impaired litigant excluded from a county quorum court session held on the second floor of an inaccessible courthouse); Matthews v. Jefferson, 29 F. Supp. 2d 525, 533- 534 (WD Ark. 1998) (wheelchair-bound litigant had to be carried to the second floor of an inaccessible courthouse, from which he was unable to leave to use restroom facilities or obtain a meal, and no arrangements were made to carry him downstairs at the end of the day); Pomerantz v. County of Los Angeles, 674 F. 2d 1288, 1289 (CA9 1982) (blind persons categorically excluded from jury service); Galloway v. Superior Court of District of Columbia, 816 F. Supp. 12 (DC 1993) (same); DeLong v. Brumbaugh, 703 F. Supp. 399, 405 (WD Pa. 1989) (deaf individual excluded from jury service); People v. Green, 561 N. Y. S. 2d 130, 133 (Cty. Ct. 1990) (prosecutor exercised peremptory strike against prospective juror solely because she was hearing impaired). FN15. For a comprehensive discussion of the shortcomings of state disability discrimination statutes, see Colker & Milani, The Post-Garrett World: Insufficient State Protection against Disability Discrimination, 53 Ala. L. Rev. 1075 (2002). FN16. THE CHIEF JUSTICE dismisses as 'irrelevant' the portions of this evidence that concern the conduct of nonstate governments. Post, at 5-6 (dissenting opinion). This argument rests on the mistaken premise that a valid exercise of Congress' ?5 power must always be predicated solely on evidence of constitutional violations by the States themselves. To operate on that premise in this case would be particularly inappropriate because this case concerns the provision of judicial services, an area in which local governments are typically treated as 'arm[s] of the State' for Eleventh Amendment purposes, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977), and thus enjoy precisely the same immunity from unconsented suit as the States. See, e.g., Callahan v. Philadelphia, 207 F. 3d 668, 670-674 (CA3 2000) (municipal court is an 'arm of the State' entitled to Eleventh Amendment immunity); Kelly v. Municipal Courts, 97 F. 3d 902, 907-908 (CA7 1996) (same); Franceschi v. Schwartz, 57 F. 3d 828, 831 (CA9 1995) (same). Cf. Garrett, 531 U. S., at 368-369. In any event, our cases have recognized that evidence of constitutional violations on the part of nonstate governmental actors is relevant to the ?5 inquiry. To be sure, evidence of constitutional violations by the States themselves is particularly important when, as in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), and Garrett, the sole purpose of reliance on ?5 is to place the States on equal footing with private actors with respect to their amenability to suit. But much of the evidence in South Carolina v. Katzenbach, 383 U. S., at 312-315, to which THE CHIEF JUSTICE favorably refers, post, at 11, involved the conduct of county and city officials, rather than the States. Moreover, what THE CHIEF JUSTICE calls an 'extensive legislative record documenting States' gender discrimination in employment leave policies' in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), post, at 11, in fact contained little specific evidence of a pattern of unconstitutional discrimination on the part of the States. Indeed, the evidence before the Congress that enacted the FMLA related primarily to the practices of private-sector employers and the Federal Government. See Hibbs, 538 U. S., at 730-735. See also id., at 745-750 (KENNEDY, J., dissenting). FN17. Specifically, we relied on (1) a Senate Report citation to a Bureau of Labor Statistics survey revealing disparities in private-sector provision of parenting leave to men and women; (2) submissions from two sources at a hearing on the Parental and Medical Leave Act of 1986, a predecessor bill to the FMLA, that public-sector parental leave polices ' 'diffe[r] little' ' from private-sector policies; (3) evidence that 15 States provided women up to one year of extended maternity leave, while only 4 States provided for similarly extended paternity leave; and (4) a House Report's quotation of a study that found that failure to implement uniform standards for parenting leave would ' 'leav[e] Federal employees open to discretionary and possibly unequal treatment,' ' H. R. Rep. No. 103-8, pt. 2, p. 11 (1993). Hibbs, 538 U. S., at 728-733. FN18. Contrary to THE CHIEF JUSTICE, post, at 15, neither Garrett nor Florida Prepaid lends support to the proposition that the Boerne test requires courts in all cases to 'measur[e] the full breadth of the statute or relevant provision that Congress enacted against the scope of the constitutional right it purported to enforce.' In fact, the decision in Garrett, which severed Title I of the ADA from Title II for purposes of the ?5 inquiry, demonstrates that courts need not examine 'the full breadth of the statute' all at once. Moreover, Garrett and Florida Prepaid, like all of our other recent ?5 cases, concerned legislation that narrowly targeted the enforcement of a single constitutional right; for that reason, neither speaks to the issue presented in this case. Nor is THE CHIEF JUSTICE's approach compelled by the nature of the Boerne inquiry. The answer to the question Boerne asks--whether a piece of legislation attempts substantively to redefine a constitutional guarantee-- logically focuses on the manner in which the legislation operates to enforce that particular guarantee. It is unclear what, if anything, examining Title II's application to hockey rinks or voting booths can tell us about whether Title II substantively redefines the right of access to the courts. FN19. In Raines, a State subject to suit under the Civil Rights Act of 1957 contended that the law exceeded Congress' power to enforce the Fifteenth Amendment because it prohibited 'any person,' and not just state actors, from interfering with voting rights. We rejected that argument, concluding that 'if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.' 362 U. S., at 24- 25. FN20. Because this case implicates the right of access to the courts, we need not consider whether Title II's duty to accommodate exceeds what the Constitution requires in the class of cases that implicate only Cleburne's prohibition on irrational discrimination. See Garrett, 531 U. S., at 372. FN21. Boddie v. Connecticut, 401 U. S. 371 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S. 102 (1996) (record fee in parental rights termination action); Smith v. Bennett, 365 U. S. 708 (1961) (filing fee for habeas petitions); Burns v. Ohio, 360 U. S. 252 (1959) (filing fee for direct appeal in criminal case). FN22. Griffin v. Illinois, 351 U. S. 12 (1956). FN23. Gideon v. Wainwright, 372 U. S. 335 (1963) (trial counsel for persons charged with felony offenses); Douglas v. California, 372 U. S. 353 (1963) (counsel for direct appeals as of right). FN24. THE CHIEF JUSTICE contends that Title II cannot be understood as remedial legislation because it 'subjects a State to liability for failing to make a vast array of special accommodations, without regard for whether the failure to accommodate results in a constitutional wrong.' Post, at 17 (emphasis in original). But as we have often acknowledged, Congress 'is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment,' and may prohibit 'a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.' Kimel, 528 U. S., at 81. Cf. Hibbs, 538 U. S. 721 (upholding the FMLA as valid remedial legislation without regard to whether failure to provide the statutorily mandated 12 weeks' leave results in a violation of the Fourteenth Amendment). JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring. I join the Court's opinion subject to the same caveats about the Court's recent cases on the Eleventh Amendment and ?5 of the Fourteenth that I noted in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 740 (2003) (SOUTER, J., concurring). Although I concur in the Court's approach applying the congruence-and- proportionality criteria to Title II of the Americans with Disabilities Act of 1990 as a guarantee of access to courts and related rights, I note that if the Court engaged in a more expansive enquiry as THE CHIEF JUSTICE suggests, post, at 15 (dissenting opinion), the evidence to be considered would underscore the appropriateness of action under ?5 to address the situation of disabled individuals before the courts, for that evidence would show that the judiciary itself has endorsed the basis for some of the very discrimination subject to congressional remedy under ?5. Buck v. Bell, 274 U. S. 200 (1927), was not grudging in sustaining the constitutionality of the once-pervasive practice of involuntarily sterilizing those with mental disabilities. See id., at 207 ('It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind... . Three generations of imbeciles are enough'). Laws compelling sterilization were often accompanied by others indiscriminately requiring institutionalization, and prohibiting certain individuals with disabilities from marrying, from voting, from attending public schools, and even from appearing in public. One administrative action along these lines was judicially sustained in part as a justified precaution against the very sight of a child with cerebral palsy, lest he 'produc[e] a depressing and nauseating effect' upon others. State ex rel. Beattie v. Board of Ed. of Antigo, 169 Wis. 231, 232, 172 N. W. 153 (1919) (approving his exclusion from public school). [FN1] Many of these laws were enacted to implement the quondam science of eugenics, which peaked in the 1920's, yet the statutes and their judicial vindications sat on the books long after eugenics lapsed into discredit. [FN2] See U. S. Civil Rights Commission, Accommodating the Spectrum of Individual Abilities 19- 20 (1983). Quite apart from the fateful inspiration behind them, one pervasive fault of these provisions was their failure to reflect the 'amount of flexibility and freedom' required to deal with 'the wide variation in the abilities and needs' of people with disabilities. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 445 (1985). Instead, like other invidious discrimination, they classified people without regard to individual capacities, and by that lack of regard did great harm. In sustaining the application of Title II today, the Court takes a welcome step away from the judiciary's prior endorsement of blunt instruments imposing legal handicaps. FN1. See generally Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 463-464 (1985) (Marshall, J., concurring in judgment in part and dissenting in part); Burgdorf & Burgdorf, A History of Unequal Treatment, 15 Santa Clara Law. 855 (1975); Brief for United States 17-19. FN2. As the majority opinion shows, some of them persist to this day, ante, at 12-14, to say nothing of their lingering effects on society. JUSTICE GINSBURG, with whom JUSTICE SOUTER and JUSTICE BREYER join, concurring. For the reasons stated by the Court, and mindful of Congress' objective in enacting the Americans with Disabilities Act--the elimination or reduction of physical and social structures that impede people with some present, past, or perceived impairments from contributing, according to their talents, to our Nation's social, economic, and civic life--I join the Court's opinion. The Americans with Disabilities Act of 1990 (ADA or Act), 42 U. S. C. ??12101- 12213, is a measure expected to advance equal-citizenship stature for persons with disabilities. See Bagenstos, Subordination, Stigma, and 'Disability,' 86 Va. L. Rev. 397, 471 (2000) (ADA aims both to 'guarante[e] a baseline of equal citizenship by protecting against stigma and systematic exclusion from public and private opportunities, and [to] protec[t] society against the loss of valuable talents'). As the Court's opinion relates, see ante, at 5, the Act comprises three parts, prohibiting discrimination in employment (Title I), public services, programs, and activities (Title II), and public accommodations (Title III). This case concerns Title II, which controls the conduct of administrators of public undertakings. Including individuals with disabilities among people who count in composing 'We the People,' Congress understood in shaping the ADA, would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation. Central to the Act's primary objective, Congress extended the statute's range to reach all government activities, ?12132 (Title II), and required 'reasonable modifications to [public actors'] rules, policies, or practices,' ??12131(2)-12132 (Title II). See also ?12112(b)(5) (defining discrimination to include the failure to provide 'reasonable accommodations') (Title I); ?12182(b)(2)(A)(ii) (requiring 'reasonable modifications in [public accommodations'] policies, practices, or procedures') (Title III); Bagenstos, supra, at 435 (ADA supporters sought 'to eliminate the practices that combine with physical and mental conditions to create what we call 'disability.' The society-wide universal access rules serve this function on the macro level, and the requirements of individualized accommodation and modification fill in the gaps on the micro level.' (footnote omitted)). In Olmstead v. L. C., 527 U. S. 581 (1999), this Court responded with fidelity to the ADA's accommodation theme when it held a State accountable for failing to provide community residential placements for people with disabilities. The State argued in Olmstead that it had acted impartially, for it provided no community placements for individuals without disabilities. Id., at 598. Congress, the Court observed, advanced in the ADA 'a more comprehensive view of the concept of discrimination,' ibid., one that embraced failures to provide 'reasonable accommodations,' id., at 601. The Court today is similarly faithful to the Act's demand for reasonable accommodation to secure access and avoid exclusion. Legislation calling upon all government actors to respect the dignity of individuals with disabilities is entirely compatible with our Constitution's commitment to federalism, properly conceived. It seems to me not conducive to a harmonious federal system to require Congress, before it exercises authority under ?5 of the Fourteenth Amendment, essentially to indict each State for disregarding the equal-citizenship stature of persons with disabilities. But see post, at 11 (SCALIA, J., dissenting) ('Congress may impose prophylactic ?5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations.'); Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 743 (2003) (SCALIA, J., dissenting) (to be controlled by ?5 legislation, State 'can demand that it be shown to have been acting in violation of the Fourteenth Amendment' (emphasis in original)). Members of Congress are understandably reluctant to condemn their own States as constitutional violators, complicit in maintaining the isolated and unequal status of persons with disabilities. I would not disarm a National Legislature for resisting an adversarial approach to lawmaking better suited to the courtroom. As the Court's opinion documents, see ante, at 12-18, Congress considered a body of evidence showing that in diverse parts of our Nation, and at various levels of government, persons with disabilities encounter access barriers to public facilities and services. That record, the Court rightly holds, at least as it bears on access to courts, sufficed to warrant the barrier-lowering, dignity-respecting national solution the People's representatives in Congress elected to order. CHIEF JUSTICE REHNQUIST, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, dissenting. In Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001), we held that Congress did not validly abrogate States' Eleventh Amendment immunity when it enacted Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. ??12111-12117. Today, the Court concludes that Title II of that Act, ??12131-12165, does validly abrogate that immunity, at least insofar 'as it applies to the class of cases implicating the fundamental right of access to the courts.' Ante, at 19. Because today's decision is irreconcilable with Garrett and the well-established principles it embodies, I dissent. The Eleventh Amendment bars private lawsuits in federal court against an unconsenting State. E.g., Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 726 (2003); Garrett, supra, at 363; Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000). Congress may overcome States' sovereign immunity and authorize such suits only if it unmistakably expresses its intent to do so, and only if it 'acts pursuant to a valid exercise of its power under ?5 of the Fourteenth Amendment.' Hibbs, supra, at 726. While the Court correctly holds that Congress satisfied the first prerequisite, ante, at 6, I disagree with its conclusion that Title II is valid ?5 enforcement legislation. Section 5 of the Fourteenth Amendment grants Congress the authority 'to enforce, by appropriate legislation,' the familiar substantive guarantees contained in ?1 of that Amendment. U. S. Const., Amdt. 14, ?1 ('No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws'). Congress' power to enact 'appropriate' enforcement legislation is not limited to 'mere legislative repetition' of this Court's Fourteenth Amendment jurisprudence. Garrett, supra, at 365. Congress may 'remedy' and 'deter' state violations of constitutional rights by 'prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.' Hibbs, 538 U. S., at 727 (internal quotation marks omitted). Such 'prophylactic' legislation, however, 'must be an appropriate remedy for identified constitutional violations, not 'an attempt to substantively redefine the States' legal obligations.' ' Id., at 727-728 (quoting Kimel, supra, at 88); City of Boerne v. Flores, 521 U. S. 507, 525 (1997) (enforcement power is 'corrective or preventive, not definitional'). To ensure that Congress does not usurp this Court's responsibility to define the meaning of the Fourteenth Amendment, valid ?5 legislation must exhibit ' 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.' ' Hibbs, supra, at 728 (quoting City of Boerne, supra, at 520). While the Court today pays lipservice to the 'congruence and proportionality' test, see ante, at 8, it applies it in a manner inconsistent with our recent precedents. In Garrett, we conducted the three-step inquiry first enunciated in City of Boerne to determine whether Title I of the ADA satisfied the congruence-and- proportionality test. A faithful application of that test to Title II reveals that it too ' 'substantively redefine[s],' ' rather than permissibly enforces, the rights protected by the Fourteenth Amendment. Hibbs, supra, at 728. The first step is to 'identify with some precision the scope of the constitutional right at issue.' Garrett, supra, at 365. This task was easy in Garrett, Hibbs, Kimel, and City of Boerne because the statutes in those cases sought to enforce only one constitutional right. In Garrett, for example, the statute addressed the equal protection right of disabled persons to be free from unconstitutional employment discrimination. Garrett, supra, at 365. See also Hibbs, supra, at 728 ('The [Family and Medical Leave Act of 1993 (FMLA)] aims to protect the right to be free from gender-based discrimination in the workplace'); Kimel, supra, at 83 (right to be free from unconstitutional age discrimination in employment); City of Boerne, supra, at 529 (right of free exercise of religion). The scope of that right, we explained, is quite limited; indeed, the Equal Protection Clause permits a State to classify on the basis of disability so long as it has a rational basis for doing so. Garrett, supra, at 366-368 (discussing Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985)); see also ante, at 11. In this case, the task of identifying the scope of the relevant constitutional protection is more difficult because Title II purports to enforce a panoply of constitutional rights of disabled persons: not only the equal protection right against irrational discrimination, but also certain rights protected by the Due Process Clause. Ante, at 11-12. However, because the Court ultimately upholds Title II 'as it applies to the class of cases implicating the fundamental right of access to the courts,' ante, at 19, the proper inquiry focuses on the scope of those due process rights. The Court cites four access-to-the-courts rights that Title II purportedly enforces: (1) the right of the criminal defendant to be present at all critical stages of the trial, Faretta v. California, 422 U. S. 806, 819 (1975); (2) the right of litigants to have a 'meaningful opportunity to be heard' in judicial proceedings, Boddie v. Connecticut, 401 U. S. 371, 379 (1971); (3) the right of the criminal defendant to trial by a jury composed of a fair cross section of the commun- ity, Taylor v. Louisiana, 419 U. S. 522, 530 (1975); and (4) the public right of access to criminal proceedings, Press--Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1, 8-15 (1986). Ante, at 11-12. Having traced the 'metes and bounds' of the constitutional rights at issue, the next step in the congruence-and-proportionality inquiry requires us to examine whether Congress 'identified a history and pattern' of violations of these constitutional rights by the States with respect to the disabled. Garrett, 531 U. S., at 368. This step is crucial to determining whether Title II is a legitimate attempt to remedy or prevent actual constitutional violations by the States or an illegitimate attempt to rewrite the constitutional provisions it purports to enforce. Indeed, 'Congress' ?5 power is appropriately exercised only in response to state transgressions.' Ibid. (emphasis added). But the majority identifies nothing in the legislative record that shows Congress was responding to widespread violations of the due process rights of disabled persons. Rather than limiting its discussion of constitutional violations to the due process rights on which it ultimately relies, the majority sets out on a wide- ranging account of societal discrimination against the disabled. Ante, at 12- 15. This digression recounts historical discrimination against the disabled through institutionalization laws, restrictions on marriage, voting, and public education, conditions in mental hospitals, and various other forms of unequal treatment in the administration of public programs and services. Some of this evidence would be relevant if the Court were considering the constitutionality of the statute as a whole; but the Court rejects that approach in favor of a narrower 'as-applied' inquiry. [FN1] We discounted much the same type of outdated, generalized evidence in Garrett as unsupportive of Title I's ban on employment discrimination. 531 U. S., at 368-372; see also City of Boerne, 521 U. S., at 530 (noting that the 'legislative record lacks ... modern instances of ... religious bigotry'). The evidence here is likewise irrelevant to Title II's purported enforcement of Due Process access-to-the-courts rights. Even if it were proper to consider this broader category of evidence, much of it does not concern unconstitutional action by the States. The bulk of the Court's evidence concerns discrimination by nonstate governments, rather than the States themselves. [FN2] We have repeatedly held that such evidence is irrelevant to the inquiry whether Congress has validly abrogated Eleventh Amendment immunity, a privilege enjoyed only by the sovereign States. Garrett, supra, at 368-369; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 640 (1999); Kimel, 528 U. S., at 89. Moreover, the majority today cites the same congressional task force evidence we rejected in Garrett. Ante, at 15 (citing Garrett, supra, at 379 (BREYER, J., dissenting), and 531 U. S., at 391-424 (App. C to opinion of BREYER, J., dissenting) (chronicling instances of 'unequal treatment' in the 'administration of public programs')). As in Garrett, this 'unexamined, anecdotal' evidence does not suffice. 531 U. S., at 370. Most of the brief anecdotes do not involve States at all, and those that do are not sufficiently detailed to determine whether the instances of 'unequal treatment' were irrational, and thus unconstitutional under our decision in Cleburne. Garrett, supra, at 370-371. Therefore, even outside the 'access to the courts' context, the Court identifies few, if any, constitutional violations perpetrated by the States against disabled persons. [FN3] With respect to the due process 'access to the courts' rights on which the Court ultimately relies, Congress' failure to identify a pattern of actual constitutional violations by the States is even more striking. Indeed, there is nothing in the legislative record or statutory findings to indicate that disabled persons were systematically denied the right to be present at criminal trials, denied the meaningful opportunity to be heard in civil cases, unconstitutionally excluded from jury service, or denied the right to attend criminal trials. [FN4] The Court's attempt to disguise the lack of congressional documentation with a few citations to judicial decisions cannot retroactively provide support for Title II, and in any event, fails on its own terms. See, e.g., Garrett, 531 U. S., at 368 ('[W]e examine whether Congress identified a history and pattern' of constitutional violations); ibid. ('[t]he legislative record ... fails to show that Congress did in fact identify a pattern' of constitutional violations) (emphases added). Indeed, because this type of constitutional violation occurs in connection with litigation, it is particularly telling that the majority is able to identify only two reported cases finding that a disabled person's federal constitutional rights were violated. [FN5] See ante, at 14, n. 14 (citing Ferrell v. Estelle, 568 F. 2d 1128, 1132-1133 (CA5), opinion withdrawn as moot, 573 F. 2d 867 (1978); People v. Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d 426, 434 (Sup. Ct. 1984)). [FN6] Lacking any real evidence that Congress was responding to actual due process violations, the majority relies primarily on three items to justify its decision: (1) a 1983 U. S. Civil Rights Commission Report showing that 76% of 'public services and programs housed in state-owned buildings were inaccessible' to persons with disabilities, ante, at 15-16; (2) testimony before a House subcommittee regarding the 'physical inaccessibility' of local courthouses, ante, at 16; and (3) evidence submitted to Congress' designated ADA task force that purportedly contains 'numerous examples of the exclusion of persons with disabilities from state judicial services and programs.' Ibid. On closer examination, however, the Civil Rights Commission's finding consists of a single conclusory sentence in its report, and it is far from clear that its finding even includes courthouses. The House subcommittee report, for its part, contains the testimony of two witnesses, neither of whom reported being denied the right to be present at constitutionally protected court proceedings. [FN7] Indeed, the witnesses' testimony, like the U. S. Civil Rights Commission Report, concerns only physical barriers to access, and does not address whether States either provided means to overcome those barriers or alternative locations for proceedings involving disabled persons. Cf., n. 4, supra (describing alternative means of access offered to respondent Lane). Based on the majority's description, ante, at 16, the report of the ADA Task Force on the Rights and Empowerment of Americans with Disabilities sounds promising. But the report itself says nothing about any disabled person being denied access to court. The Court thus apparently relies solely on a general citation to the Government's Lodging in Garrett, O. T. 2000, No. 99-1240 which, amidst thousands of pages, contains only a few anecdotal handwritten reports of physically inaccessible courthouses, again with no mention of whether States provided alternate means of access. This evidence, moreover, was submitted not to Congress, but only to the task force, which itself made no findings regarding disabled persons' access to judicial proceedings. Cf. Garrett, 531 U. S., at 370-371 (rejecting anecdotal task force evidence for similar reasons). As we noted in Garrett, 'had Congress truly understood this [task force] information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings.' Id., at 371. Yet neither the legislative findings, nor even the Committee Reports, contain a single mention of the seemingly vital topic of access to the courts. [FN8] Cf. ibid.; Florida Prepaid, 527 U. S., at 641 (observing that Senate Report on Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act) 'contains no evidence that unremedied patent infringement by States had become a problem of national import'). To the contrary, the Senate Report on the ADA observed that '[a]ll states currently mandate accessibility in newly constructed state-owned public buildings.' S. Rep. No. 101-116, p. 92 (1989). Even if the anecdotal evidence and conclusory statements relied on by the majority could be properly considered, the mere existence of an architecturally 'inaccessible' courthouse--i.e., one a disabled person cannot utilize without assistance--does not state a constitutional violation. A violation of due process occurs only when a person is actually denied the constitutional right to access a given judicial proceeding. We have never held that a person has a constitutional right to make his way into a courtroom without any external assistance. Indeed, the fact that the State may need to assist an individual to attend a hearing has no bearing on whether the individual successfully exercises his due process right to be present at the proceeding. Nor does an 'inaccessible' courthouse violate the Equal Protection Clause, unless it is irrational for the State not to alter the courthouse to make it 'accessible.' But financial considerations almost always furnish a rational basis for a State to decline to make those alterations. See Garrett, 531 U. S., at 372 (noting that it would be constitutional for an employer to 'conserve scarce financial resources' by hiring employees who can use existing facilities rather than making the facilities accessible to disabled employees). Thus, evidence regarding inaccessible courthouses, because it is not evidence of constitutional violations, provides no basis to abrogate States' sovereign immunity. The near-total lack of actual constitutional violations in the congressional record is reminiscent of Garrett, wherein we found that the same type of minimal anecdotal evidence 'f[e]ll far short of even suggesting the pattern of unconstitutional [state action] on which ?5 legislation must be based.' Id., at 370. See also Kimel, 528 U. S., at 91 ('Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary'); Florida Prepaid, supra, at 645 ('The legislative record thus suggests that the Patent Remedy Act did not respond to a history of 'widespread and persisting deprivation of constitutional rights' of the sort Congress has faced in enacting proper prophylactic ?5 legislation' (quoting City of Boerne, 521 U. S., at 526)). The barren record here should likewise be fatal to the majority's holding that Title II is valid legislation enforcing due process rights that involve access to the courts. This conclusion gains even more support when Title II's nonexistent record of constitutional violations is compared with legislation that we have sustained as valid ?5 enforcement legislation. See, e.g., Hibbs, 538 U. S., at 729-732 (tracing the extensive legislative record documenting States' gender discrimination in employment leave policies); South Carolina v. Katzenbach, 383 U. S. 301, 312-313 (1966) (same with respect to racial discrimination in voting rights). Accordingly, Title II can only be understood as a congressional attempt to 'rewrite the Fourteenth Amendment law laid down by this Court,' rather than a legitimate effort to remedy or prevent state violations of that Amendment. Garrett, supra, at 374. [FN9] The third step of our congruence-and-proportionality inquiry removes any doubt as to whether Title II is valid ?5 legislation. At this stage, we ask whether the rights and remedies created by Title II are congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress. Hibbs, supra, at 737-739; Garrett, supra, at 372-373. Title II provides that 'no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.' 42 U. S. C. ?12132. A disabled person is considered 'qualified' if he 'meets the essential eligibility requirements' for the receipt of the entity's services or participation in the entity's programs, 'with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.' ?12131(2) (emphasis added). The ADA's findings make clear that Congress believed it was attacking 'discrimination' in all areas of public services, as well as the 'discriminatory effect' of 'architectural, transportation, and communication barriers.' ??12101(a)(3), (a)(5). In sum, Title II requires, on pain of money damages, special accommodations for disabled persons in virtually every interaction they have with the State. 'Despite subjecting States to this expansive liability,' the broad terms of Title II 'd[o] nothing to limit the coverage of the Act to cases involving arguable constitutional violations.' Florida Prepaid, 527 U. S., at 646. By requiring special accommodation and the elimination of programs that have a disparate impact on the disabled, Title II prohibits far more state conduct than does the equal protection ban on irrational discrimination. We invalidated Title I's similar requirements in Garrett, observing that '[i]f special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.' 531 U. S., at 368; id., at 372-373 (contrasting Title I's reasonable accommodation and disparate impact provisions with the Fourteenth Amendment's requirements). Title II fails for the same reason. Like Title I, Title II may be laudable public policy, but it cannot be seriously disputed that it is also an attempt to legislatively 'redefine the States' legal obligations' under the Fourteenth Amendment. Kimel, 528 U. S., at 88. The majority, however, claims that Title II also vindicates fundamental rights protected by the Due Process Clause--in addition to access to the courts--that are subject to heightened Fourteenth Amendment scrutiny. Ante, at 11 (citing Dunn v. Blumstein, 405 U. S. 330, 336-337 (1972) (voting); Shapiro v. Thompson, 394 U. S. 618, 634 (1969) (right to move to a new jurisdiction); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) (marriage and procreation)). But Title II is not tailored to provide prophylactic protection of these rights; instead, it applies to any service, program, or activity provided by any entity. Its provisions affect transportation, health, education, and recreation programs, among many others, all of which are accorded only rational-basis scrutiny under the Equal Protection Clause. A requirement of accommodation for the disabled at a state-owned amusement park or sports stadium, for example, bears no permissible prophylactic relationship to enabling disabled persons to exercise their fundamental constitutional rights. Thus, as with Title I in Garrett, the Patent Remedy Act in Florida Prepaid, the Age Discrimination in Employment Act of 1967 in Kimel, and the RFRA in City of Boerne, all of which we invalidated as attempts to substantively redefine the Fourteenth Amendment, it is unlikely 'that many of the [state actions] affected by [Title II] ha[ve] any likelihood of being unconstitutional.' City of Boerne, supra, at 532. Viewed as a whole, then, there is little doubt that Title II of the ADA does not validly abrogate state sovereign immunity. [FN10] The majority concludes that Title II's massive overbreadth can be cured by considering the statute only 'as it applies to the class of cases implicating the accessibility of judicial services.' Ante, at 20 (citing United States v. Raines, 362 U. S. 17, 26 (1960)). I have grave doubts about importing an 'as applied' approach into the ?5 context. While the majority is of course correct that this Court normally only considers the application of a statute to a particular case, the proper inquiry under City of Boerne and its progeny is somewhat different. In applying the congruence-and-proportionality test, we ask whether Congress has attempted to statutorily redefine the constitutional rights protected by the Fourteenth Amendment. This question can only be answered by measuring the breadth of a statute's coverage against the scope of the constitutional rights it purports to enforce and the record of violations it purports to remedy. In conducting its as-applied analysis, however, the majority posits a hypothetical statute, never enacted by Congress, that applies only to courthouses. The effect is to rig the congruence-and-proportionality test by artificially constricting the scope of the statute to closely mirror a recognized constitutional right. But Title II is not susceptible of being carved up in this manner; it applies indiscriminately to all 'services,' 'programs,' or 'activities' of any 'public entity.' Thus, the majority's approach is not really an assessment of whether Title II is 'appropriate legislation' at all, U. S. Const., Amdt. 14, ?5 (emphasis added), but a test of whether the Court can conceive of a hypothetical statute narrowly tailored enough to constitute valid prophylactic legislation. Our ?5 precedents do not support this as-applied approach. In each case, we measured the full breadth of the statute or relevant provision that Congress enacted against the scope of the constitutional right it purported to enforce. If we had arbitrarily constricted the scope of the statutes to match the scope of a core constitutional right, those cases might have come out differently. In Garrett, for example, Title I might have been upheld 'as applied' to irrational employment discrimination; or in Florida Prepaid, the Patent Remedy Act might have been upheld 'as applied' to intentional, uncompensated patent infringements. It is thus not surprising that the only authority cited by the majority is Raines, supra, a case decided long before we enunciated the congruence-and-proportionality test. [FN11] I fear that the Court's adoption of an as-applied approach eliminates any incentive for Congress to craft ?5 legislation for the purpose of remedying or deterring actual constitutional violations. Congress can now simply rely on the courts to sort out which hypothetical applications of an undifferentiated statute, such as Title II, may be enforced against the States. All the while, States will be subjected to substantial litigation in a piecemeal attempt to vindicate their Eleventh Amendment rights. The majority's as-applied approach simply cannot be squared with either our recent precedent or the proper role of the Judiciary. Even in the limited courthouse-access context, Title II does not properly abrogate state sovereign immunity. As demonstrated in depth above, Congress utterly failed to identify any evidence that disabled persons were denied constitutionally protected access to judicial proceedings. Without this predicate showing, Title II, even if we were to hypothesize that it applies only to courthouses, cannot be viewed as a congruent and proportional response to state constitutional violations. Garrett, 531 U. S., at 368 ('Congress' ?5 authority is appropriately exercised only in response to state transgressions'). Moreover, even in the courthouse-access context, Title II requires substantially more than the Due Process Clause. Title II subjects States to private lawsuits if, inter alia, they fail to make 'reasonable modifications' to fa- cilities, such as removing 'architectural ... barriers.' 42 U. S., C. ??12131(2), 12132. Yet the statute is not limited to occasions when the failure to modify results, or will likely result, in an actual due process violation--i.e., the inability of a disabled person to participate in a judicial proceeding. Indeed, liability is triggered if an inaccessible building results in a disabled person being 'subjected to discrimination'--a term that presumably encompasses any sort of inconvenience in accessing the facility, for whatever purpose. ?12132. The majority's reliance on Boddie v. Connecticut, 401 U. S. 371 (1971), and other cases in which we held that due process requires the State to waive filing fees for indigent litigants, is unavailing. While these cases support the principle that the State must remove financial requirements that in fact prevent an individual from exercising his constitutional rights, they certainly do not support a statute that subjects a State to liability for failing to make a vast array of special accommodations, without regard for whether the failure to accommodate results in a constitutional wrong. In this respect, Title II is analogous to the Patent Remedy Act at issue in Florida Prepaid. That statute subjected States to monetary liability for any act of patent infringement. 527 U. S., at 646-647. Thus, 'Congress did nothing to limit' the Act's coverage 'to cases involving arguable [Due Process] violations,' such as when the infringement was nonnegligent or uncompensated. Ibid. Similarly here, Congress has authorized private damages suits against a State for merely maintaining a courthouse that is not readily accessible to the disabled, without regard to whether a disabled person's due process rights are ever violated. Accordingly, even as applied to the 'access to the courts' context, Title II's 'indiscriminate scope offends [the congruence-and- proportionality] principle,' particularly in light of the lack of record evidence showing that inaccessible courthouses cause actual Due Process violations. Id., at 647. [FN12] For the foregoing reasons, I respectfully dissent. FN1. For further discussion of the propriety of this approach, see infra, at 14-15. FN2. E.g., ante, at 13 (citing Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985) (irrational discrimination by city zoning board)); ante, at 14, n. 12 (citing New York ex rel. Spitzer v. County of Delaware, 82 F. Supp. 2d 12 (NDNY 2000) (ADA lawsuit brought by State against a county)); ante, at 13-14, n. 11 (citing four cases concerning local school boards' unconstitutional actions); ante, at 14, n. 13 (citing one case involving conditions in federal prison and another involving a county jail inmate); ante, at 15 (referring to 'hundreds of examples of unequal treatment ... by States and their political subdivisions' (emphasis added)). FN3. The majority obscures this fact by repeatedly referring to congressional findings of 'discrimination' and 'unequal treatment.' Of course, generic findings of discrimination and unequal treatment vel non are insufficient to show a pattern of constitutional violations where rational-basis scrutiny applies. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 370 (2001). FN4. Certainly, respondents Lane and Jones were not denied these constitutional rights. The majority admits that Lane was able to attend the initial hearing of his criminal trial. Ante, at 1. Lane was arrested for failing to appear at his second hearing only after he refused assistance from officers dispatched by the court to help him to the courtroom. Ante, at 2. The court conducted a preliminary hearing in the first-floor library to accommodate Lane's disability, App. to Pet. for Cert. 16, and later offered to move all further proceedings in the case to a handicapped-accessible courthouse in a nearby town. In light of these facts, it can hardly be said that the State violated Lane's right to be present at his trial; indeed, it made affirmative attempts to secure that right. Respondent Jones, a disabled court reporter, does not seriously contend that she suffered a constitutional injury. FN5. As two JUSTICES noted in Garrett, if the States were violating the Due Process rights of disabled ...persons, 'one would have expected to find in decisions of the courts ... extensive litigation and discussion of the constitutional violations.' 531 U. S., at 376 (KENNEDY, J., joined by O'CONNOR, J., concurring). FN6. The balance of the Court's citations refer to cases arising after enactment of the ADA or do not contain findings of federal constitutional violations. Ante, at 14-15, n. 14 (citing Layton v. Elder, 143 F. 3d 469 (CA8 1998) (post-ADA case finding ADA violations only); Matthews v. Jefferson, 29 F. Supp. 2d 525 (WD Ark. 1998) (same); Galloway v. Superior Court, 816 F. Supp. 12 (DC 1993) (same); State v. Schaim, 65 Ohio St. 3d 51, 600 N. E. 2d 661 (1992) (remanded for hearing on constitutional issue); People v. Green, 561 N. Y. S. 2d 130 (County Ct. 1990) (finding violation of state constitution only); DeLong v. Brumbaugh, 703 F. Supp. 399 (WD Pa. 1989) (statute upheld against facial constitutional challenge; Rehabilitation Act of 1973 violations only); Pomerantz v. Los Angeles County, 674 F. 2d 1288 (CA9 1982) (Rehabilitation Act of 1973 claim; challenged jury-service statute later amended)). Accordingly, they offer no support whatsoever for the notion that Title II is a valid response to documented constitutional violations. FN7. Oversight Hearing on H. R. 4468 before the House Subcommittee on Select Education of the Committee on Education and Labor, 100th Cong., 2d Sess., 40-41 (1988) (statement of Emeka Nwojke) (explaining that he encountered difficulties appearing in court due to physical characteristics of the courthouse and courtroom and the rudeness of court employees); id., at 48 (statement of Ellen Telker) (blind attorney 'know[s] of at least one courthouse in New Haven where the elevators do not have tactile markings'). FN8. The majority rather peculiarly points to Congress' finding that ' 'discrimination against individuals with disabilities persists in such critical areas as access to public services' ' as evidence that Congress sought to vindicate the Due Process rights of disabled persons. Ante, at 18 (quoting 42 U. S. C. ?12101(a)(3) (emphasis added by the Court)). However, one does not usually refer to the right to attend a judicial proceeding as 'access to [a] public servic[e].' Given the lack of any concern over courthouse accessibility issues in the legislative history, it is highly unlikely that this legislative finding obliquely refers to state violations of the due process rights of disabled persons to attend judicial proceedings. FN9. The Court correctly explains that ' 'it [i]s easier for Congress to show a pattern of state constitutional violations' ' when it targets state action that triggers a higher level of constitutional scrutiny. Ante, at 18 (quoting Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003)). However, this Court's precedents attest that Congress may not dispense with the required showing altogether simply because it purports to enforce due process rights. See Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 645-646 (1999) (invalidating Patent Remedy Act, which purported to enforce the Due Process Clause, because Congress failed to identify a record of constitutional violations); City of Boerne v. Flores, 521 U. S. 507, 530-531 (1997) (same with respect to Religious Freedom Restoration Act of 1993 (RFRA)). As the foregoing discussion demonstrates, that is precisely what the Court has sanctioned here. Because the record is utterly devoid of proof that Congress was responding to state violations of due process access-to-the-courts rights, this case is controlled by Florida Prepaid and City of Boerne, rather than Hibbs. FN10. Title II's all-encompassing approach to regulating public services contrasts starkly with the more closely tailored laws we have upheld as legitimate prophylactic ?5 legislation. In Hibbs, for example, the FMLA was 'narrowly targeted' to remedy widespread gender discrimination in the availability of family leave. 538 U. S., at 738-739 (distinguishing City of Boerne, Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), and Garrett on this ground). Similarly, in cases involving enforcement of the Fifteenth Amendment, we upheld 'limited remedial scheme[s]' that were narrowly tailored to address massive evidence of discrimination in voting. Garrett, 531 U. S., at 373 (discussing South Carolina v. Katzenbach, 383 U. S. 301 (1966)). Unlike these statutes, Title II's 'indiscriminate scope ... is particularly incongruous in light of the scant support for the predicate unconstitutional conduct that Congress intended to remedy.' Florida Prepaid, 527 U. S., at 647. FN11. Raines is inapposite in any event. The Court there considered the constitutionality of the Civil Rights Act of 1957--a statute designed to enforce the Fifteenth Amendment--whose narrowly tailored substantive provisions could 'unquestionably' be applied to state actors (like the respondents therein). 362 U. S., at 25, 26. The only question presented was whether the statute was facially invalid because it might be read to constrain nonstate actors as well. Id., at 20. The Court upheld the statute as applied to respondents and declined to entertain the facial challenge. Id., at 24-26. The situation in this case is much different: The very question presented is whether Title II's indiscriminate substantive provisions can constitutionally be applied to the petitioner State. Raines thus provides no support for avoiding this question by conjuring up an imaginary statute with substantive provisions that might pass the congruence-and-proportionality test. FN12. The majority's invocation of Hibbs to justify Title II's overbreadth is unpersuasive. See ante, at 22, n. 24. The Hibbs Court concluded that 'in light of the evidence before Congress' the FMLA's 12-week family-leave provision was necessary to 'achiev[e] Congress' remedial object.' 538 U. S, at 748. The Court found that the legislative record included not only evidence of state constitutional violations, but evidence that a provision merely enforcing the Equal Protection Clause would actually perpetuate the gender stereotypes Congress sought to eradicate because employers could simply eliminate family leave entirely. Ibid. Without comparable evidence of constitutional violations and the necessity of prophylactic measures, the Court has no basis on which to uphold Title II's special-accommodation requirements. JUSTICE SCALIA, dissenting. Section 5 of the Fourteenth Amendment provides that Congress 'shall have power to enforce, by appropriate legislation, the provisions' of that Amendment-- including, of course, the Amendment's Equal Protection and Due Process Clauses. In Katzenbach v. Morgan, 384 U. S. 641 (1966), we decided that Congress could, under this provision, forbid English literacy tests for Puerto Rican voters in New York State who met certain educational criteria. Though those tests were not themselves in violation of the Fourteenth Amendment, we held that ?5 authorizes prophylactic legislation--that is, 'legislation that proscribes facially constitutional conduct,' Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 728 (2003), when Congress determines such proscription is desirable ' 'to make the amendments fully effective,' ' Morgan, supra, at 648 (quoting Ex parte Virginia, 100 U. S. 339, 345 (1880)). We said that 'the measure of what constitutes 'appropriate legislation' under ?5 of the Fourteenth Amendment' is the flexible 'necessary and proper' standard of McCulloch v. Maryland, 4 Wheat. 316, 342, 421 (1819). Morgan, 384 U. S., at 651. We described ?5 as 'a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.' Ibid. The Morgan opinion followed close upon our decision in South Carolina v. Katzenbach, 383 U. S. 301 (1966), which had upheld prophylactic application of the similarly worded 'enforce' provision of the Fifteenth Amendment (?2) to challenged provisions of the Voting Rights Act of 1965. But the Fourteenth Amendment, unlike the Fifteenth, is not limited to denial of the franchise and not limited to the denial of other rights on the basis of race. In City of Boerne v. Flores, 521 U. S. 507 (1997), we confronted Congress's inevitable expansion of the Fourteenth Amendment, as interpreted in Morgan, beyond the field of racial discrimination. [FN1] There Congress had sought, in the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. ?2000bb et seq., to impose upon the States an interpretation of the First Amendment's Free Exercise Clause that this Court had explicitly rejected. To avoid placing in congressional hands effective power to rewrite the Bill of Rights through the medium of ?5, we formulated the 'congruence and proportionality' test for determining what legislation is 'appropriate.' When Congress enacts prophylactic legislation, we said, there must be 'proportionality or congruence between the means adopted and the legitimate end to be achieved.' 521 U. S., at 533. I joined the Court's opinion in Boerne with some misgiving. I have generally rejected tests based on such malleable standards as 'proportionality,' because they have a way of turning into vehicles for the implementation of individual judges' policy preferences. See, e.g., Ewing v. California, 538 U. S. 11, 31- 32 (2003) (SCALIA, J., concurring in judgment) (declining to apply a 'proportionality' test to the Eighth Amendment's ban on cruel and unusual punishment); Stenberg v. Carhart, 530 U. S. 914, 954-956 (2000) (SCALIA, J., dissenting) (declining to apply the 'undue burden' standard of Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)); BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (SCALIA, J., dissenting) (declining to apply a 'reasonableness' test to punitive damages under the Due Process Clause). Even so, I signed on to the 'congruence and proportionality' test in Boerne, and adhered to it in later cases: Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), where we held that the provisions of the Patent and Plant Variety Protection Remedy Clarification Act, 35 U. S. C. ??271(h), 296(a), were ' 'so out of proportion to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior,' ' 527 U. S., at 646 (quoting Boerne, supra, at 532); Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), where we held that the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. ?621 et seq. (1994 ed. and Supp. III), imposed on state and local governments requirements 'disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act,' 528 U. S., at 83; United States v. Morrison, 529 U. S. 598 (2000), where we held that a provision of the Violence Against Women Act, 42 U. S. C. ?13981, lacked congruence and proportionality because it was 'not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe,' 529 U. S., at 626; and Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001), where we said that Title I of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 330, 42 U. S. C. ??12111-12117, raised 'the same sort of concerns as to congruence and proportionality as were found in City of Boerne,' 531 U. S., at 372. But these cases were soon followed by Nevada Dept. of Human Resources v. Hibbs, in which the Court held that the Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C. ?2612 et seq., which required States to provide their employees up to 12 work weeks of unpaid leave (for various purposes) annually, was 'congruent and proportional to its remedial object [of preventing sex discrimination], and can be understood as responsive to, or designed to prevent, unconstitutional behavior.' 538 U. S., at 740 (internal quotation marks omitted). I joined JUSTICE KENNEDY's dissent, which established (conclusively, I thought) that Congress had identified no unconstitutional state action to which the statute could conceivably be a proportional response. And now we have today's decision, holding that Title II of the ADA is congruent and proportional to the remediation of constitutional violations, in the face of what seems to me a compelling demonstration of the opposite by THE CHIEF JUSTICE's dissent. I yield to the lessons of experience. The 'congruence and proportionality' standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test ('congruence and proportionality') that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. As I wrote for the Court in an earlier case, 'low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.' Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 239 (1995). I would replace 'congruence and proportionality' with another test--one that provides a clear, enforceable limitation supported by the text of ?5. Section 5 grants Congress the power 'to enforce, by appropriate legislation,' the other provisions of the Fourteenth Amendment. U. S. Const., Amdt. 14 (emphasis added). Morgan notwithstanding, one does not, within any normal meaning of the term, 'enforce' a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, 'enforce' a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit--even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. And one does not 'enforce' the right of access to the courts at issue in this case, see ante, at 19, by requiring that disabled persons be provided access to all of the 'services, programs, or activities' furnished or conducted by the State, 42 U. S. C. ?12132. That is simply not what the power to enforce means--or ever meant. The 1860 edition of Noah Webster's American Dictionary of the English Language, current when the Fourteenth Amendment was adopted, defined 'enforce' as: 'To put in execution; to cause to take effect; as, to enforce the laws.' Id., at 396. See also J. Worcester, Dictionary of the English Language 484 (1860) ('To put in force; to cause to be applied or executed; as, 'To enforce a law' '). Nothing in ?5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or 'remedy' conduct that does not itself violate any provision of the Fourteenth Amendment. So-called 'prophylactic legislation' is reinforcement rather than enforcement. Morgan asserted that this commonsense interpretation 'would confine the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the ' majestic generalities' of ?1 of the Amendment.' 384 U. S., at 648-649. That is not so. One must remember 'that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution.' R. Berger, Government By Judiciary 147 (2d ed. 1997). If, just after the Fourteenth Amendment was ratified, a State had enacted a law imposing racially discriminatory literacy tests (different questions for different races) a citizen prejudiced by such a test would have had no means of asserting his constitutional right to be free of it. Section 5 authorizes Congress to create a cause of action through which the citizen may vindicate his Fourteenth Amendment rights. One of the first pieces of legislation passed under Congress's ?5 power was the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, entitled 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.' Section 1 of that Act, later codified as Rev. Stat. ?1979, 42 U. S. C. ?1983, authorized a cause of action against 'any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States.' 17 Stat. 13. Section 5 would also authorize measures that do not restrict the States' substantive scope of action but impose requirements directly related to the facilitation of 'enforcement'-- for example, reporting requirements that would enable violations of the Fourteenth Amendment to be identified. [FN2] But what ?5 does not authorize is so-called 'prophylactic' measures, prohibiting primary conduct that is itself not forbidden by the Fourteenth Amendment. The major impediment to the approach I have suggested is stare decisis. A lot of water has gone under the bridge since Morgan, and many important and well- accepted measures, such as the Voting Rights Act, assume the validity of Morgan and South Carolina. As Prof. Archibald Cox put it in his Supreme Court Foreword: 'The etymological meaning of section 5 may favor the narrower reading. Literally, 'to enforce' means to compel performance of the obligations imposed; but the linguistic argument lost much of its force once the South Carolina and Morgan cases decided that the power to enforce embraces any measure appropriate to effectuating the performance of the state's constitutional duty.' Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 110-111 (1966). However, South Carolina and Morgan, all of our later cases except Hibbs that give an expansive meaning to 'enforce' in ?5 of the Fourteenth Amendment, and all of our earlier cases that even suggest such an expansive meaning in dicta, involved congressional measures that were directed exclusively against, or were used in the particular case to remedy, racial discrimination. See Oregon v. Mitchell, 400 U. S. 112 (1970) (see discussion infra); Ex parte Virginia, 100 U. S. 339 (1880) (dictum in a case involving a statute that imposed criminal penalties for officials' racial discrimination in jury selection); Strauder v. West Virginia, 100 U. S. 303, 311-312 (1880) (dictum in a case involving a statute that permitted removal to federal court of a black man's claim that his jury had been selected in a racially discriminatory manner); Virginia v. Rives, 100 U. S. 313, 318 (1880) (dictum in a racial discrimination case involving the same statute). See also City of Rome v. United States, 446 U. S. 156, 173-178 (1980) (upholding as valid legislation under ?2 of the Fifteenth Amendment the most sweeping provisions of the Voting Rights Act of 1965); Jones v. Alfred H. Mayer Co., 392 U. S. 409, 439-441 (1968) (upholding a law, 42 U. S. C. ?1982, banning public or private racial discrimination in the sale and rental of prop- erty as appropriate legislation under ?2 of the Thirteenth Amendment). Giving ?5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the Fourteenth Amendment a priority of attention that this Court envisioned from the beginning, and that has repeatedly been reflected in our opinions. In the Slaughter-House Cases, 16 Wall. 36, 81 (1873), the Court's first confrontation with the Fourteenth Amendment, we said the following with respect to the Equal Protection Clause: 'We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.' Racial discrimination was the practice at issue in the early cases (cited in Morgan) that gave such an expansive description of the effects of ?5. See 384 U. S., at 648 (citing Ex parte Virginia); 384 U. S., at 651 (citing Strauder v. West Virginia, and Virginia v. Rives). [FN3] In those early days, bear in mind, the guarantee of equal protection had not been extended beyond race to sex, age, and the many other categories it now covers. Also still to be developed were the incorporation doctrine (which holds that the Fourteenth Amendment incorporates and applies against the States the Bill of Rights, see Duncan v. Louisiana, 391 U. S. 145, 147-148 (1968)) and the doctrine of so- called 'substantive due process' (which holds that the Fourteenth Amendment's Due Process Clause protects unenumerated liberties, see generally Lawrence v. Texas, 539 U. S. 558 (2003); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)). Thus, the Fourteenth Amendment did not include the many guarantees that it now provides. In such a seemingly limited context, it did not appear to be a massive expansion of congressional power to interpret ?5 broadly. Broad interpretation was particularly appropriate with regard to racial discrimination, since that was the principal evil against which the Equal Protection Clause was directed, and the principal constitutional prohibition that some of the States stubbornly ignored. The former is still true, and the latter remained true at least as late as Morgan. When congressional regulation has not been targeted at racial discrimination, we have given narrower scope to ?5. In Oregon v. Mitchell, 400 U. S. 112 (1970), the Court upheld, under ?2 of the Fifteenth Amendment, that provision of the Voting Rights Act Amendments of 1970, 84 Stat. 314, which barred literacy tests and similar voter-eligibility requirements--classic tools of the racial discrimination in voting that the Fifteenth Amendment forbids; but found to be beyond the ?5 power of the Fourteenth Amendment the provision that lowered the voting age from 21 to 18 in state elections. See 400 U. S., at 124-130 (opinion of Black, J.); id., at 153-154 (Harlan, J., concurring in part and dissenting in part); id., at 293-296 (Stewart, J., joined by Burger, C. J., and Blackmun, J., concurring in part and dissenting in part). A third provision, which forbade States from disqualifying voters by reason of residency requirements, was also upheld--but only a minority of the Justices believed that ?5 was adequate authority. Justice Black's opinion in that case described exactly the line I am drawing here, suggesting that Congress's enforcement power is broadest when directed 'to the goal of eliminating discrimination on account of race.' Id., at 130. And of course the results reached in Boerne, Florida Prepaid, Kimel, Morrison, and Garrett are consistent with the narrower compass afforded congressional regulation that does not protect against or prevent racial discrimination. Thus, principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic ?5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. See Hibbs, 538 U. S., at 741-743 (SCALIA, J., dissenting); Morrison, 529 U. S., at 626-627; Morgan, 384 U. S., at 666- 667, 669, 670-671 (Harlan, J., dissenting). [FN4] I would also adhere to the requirement that the prophylactic remedy predicated upon such state violations must be directed against the States or state actors rather than the public at large. See Morrison, supra, at 625-626. And I would not, of course, permit any congressional measures that violate other provisions of the Constitution. When those requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under ?5 to prevent or remedy racial discrimination by the States. I shall also not subject to 'congruence and proportionality' analysis congressional action under ?5 that is not directed to racial discrimination. Rather, I shall give full effect to that action when it consists of 'enforcement' of the provisions of the Fourteenth Amendment, within the broad but not unlimited meaning of that term I have described above. When it goes beyond enforcement to prophylaxis, however, I shall consider it ultra vires. The present legislation is plainly of the latter sort. * * * Requiring access for disabled persons to all public buildings cannot remotely be considered a means of 'enforcing' the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments. 'The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth 'logical' extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process: 'thus far but not beyond.' ' United States v. 12 200--ft. Reels of Super 8MM. Film, 413 U. S. 123, 127 (1973) (Burger, C. J., for the Court) (footnote omitted). It is past time to draw a line limiting the uncontrolled spread of a well-intentioned textual distortion. For these reasons, I respectfully dissent from the judgment of the Court. FN1. Congress had previously attempted such an extension in the Voting Rights Act Amendments of 1970, 84 Stat. 318, which sought to lower the voting age in state elections from 21 to 18. This extension was rejected, but in three separate opinions, none of which commanded a majority of the Court. See infra, at 10. FN2. Professor Tribe's treatise gives some examples of such measures that facilitate enforcement in the context of the Fifteenth Amendment: 'The Civil Rights Act of 1957, 71 Stat. 634, authorized the Attorney General to seek injunctions against interference with the right to vote on racial grounds. The Civil Rights Act of 1960, 74 Stat. 86, permitted joinder of states as parties defendant, gave the Attorney General access to local voting records, and authorized courts to register voters in areas of systemic discrimination. The Civil Rights Act of 1964, 78 Stat. 241, expedited the hearing of voting cases before three-judge courts . . . .' L. Tribe, American Constitutional Law 931, n. 5 (3d ed. 2000). FN3. A later case cited in Morgan, James Everard's Breweries v. Day, 265 U. S. 545, 558-563 (1924), applied the more flexible standard of McCulloch v. Maryland, 4 Wheat. 316 (1819), to the Eighteenth Amendment, which, in ?1, forbade the 'the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States . . . for beverage purposes' and provided, in ?2, that 'Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.' Congress had provided, in the Supplemental Prohibition Act of 1921, ?2, 42 Stat. 222, that 'only spirituous and vinous liquor may be prescribed for medicinal purposes.' That was challenged as unconstitutional because it went beyond the regulation of intoxicating liquors for beverage purposes, and hence beyond 'enforcement.' In an opinion citing none of the Thirteenth, Fourteenth, and Fifteenth Amendment cases discussed in text, the Court held that the McCulloch v. Maryland test applied. Unlike what is at issue here, that case did not involve a power to control the States in respects not otherwise permitted by the Constitution. The only consequence of the Federal Government's going beyond 'enforcement' narrowly defined was its arguable incursion upon powers left to the States--which is essentially the same issue that McCulloch addressed. FN4. Dicta in one of our earlier cases seemed to suggest that even nonprophylactic provisions could not be adopted under ?5 except in response to a State's constitutional violations: 'When the State has been guilty of no violation of [the Fourteenth Amendment's] provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress.' United States v. Harris, 106 U. S. 629, 639 (1883). I do not see the textual basis for this interpretation. JUSTICE THOMAS, dissenting. I join THE CHIEF JUSTICE's dissent. I agree that Title II of the Americans with Disabilities Act of 1990 cannot be a congruent and proportional remedy to the States' alleged practice of denying disabled persons access to the courts. Not only did Congress fail to identify any evidence of such a practice when it enacted the ADA, ante, at 6, 10, Title II regulates far more than the provision of access to the courts, ante, at 15-16. Because I joined the dissent in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), and continue to believe that Hibbs was wrongly decided, I write separately only to disavow any reliance on Hibbs in reaching this conclusion. 2004477048 U.S., 2004 TENNESSEE v. LANE END OF DOCUMENT Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 18 16:44:40 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 18 Jul 2012 12:44:40 -0400 Subject: [Vendorsmi] more on cadillac place suit Message-ID: <3A94E637E51D4C27BED309A59434F662@YOUR7C60552B9E> Ok another article on the Bernstein suit against the State and Cadillac Place. Note his reference here to state services including the Michigan Commission for the Blind which held one of its hearings in this very building two days after this suit was filed! Yet, all VR facilities including those used for public hearings were to have met the program access requirements of the Americans with Disabilities Act of 1990 by no later than January 26, 1992! I rest my case that this entire state has been violating the ADA systemically for people with sensory and physical disabilities even those like the Michigan Commission for the Blind and Michigan Rehabilitation Services which are funded under the Rehabilitation Act of 1973 (with 504 protections by the way) who are supposed to serve the very people they are discriminating against en masse! And this is not the only facility or program in this state that violates our collective and individual rights daily! Joe Harcz Richard Bernstein Cadillac Place Lacks Accessibility For Handicapped July 12, 2012 1:48 PM Share this Reporting Vickie Thomas T (WWJ) - A local attorney is filing a federal lawsuit Thursday against the state of Michigan over what he says is the lack of accessibility for the handicapped at a landmark building in Detroit. Attorney Richard Bernstein is suing the State and Federal Court on behalf of Jill Babcock, who has multiple sclerosis and is confined to a wheelchair. A nationally known tax lawyer, Babcock works for the Michigan Economic Development Corporation inside of Cadillac Place. Bernstein said the building is not fully accessible for the handicapped. ?Here you have the seat of state government for southeastern Michigan that a disabled person can?t even get through the front door,? said Bernstein. ?So let?s look at what you have in this building. You have the highest most scrutiny because, number one, it?s state government. ?You have the governor?s office, the attorney general?s office, [and] the Secretary of State?s office. You even have, which is my favorite, the Commission on People with Disabilities, the Commission for the Blind.? Bernstein said the building is not safe for a person confined to a wheelchair, either. ?You have a door that?s marked ADA compliant, so people with disabilities will start using that door but what happens is it?s dangerous,? said Bernstein. ?What will take place is you go down it so steep that you become like a missile and it launches you into traffic and into the oncoming street.? Click here to find out more! Share this View Comments -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Sat Jul 21 12:46:37 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Sat, 21 Jul 2012 08:46:37 -0400 Subject: [Vendorsmi] Fw: Amended Response to FOIA Response of 7-20-12 - State Plan Meetings, Public Hearing Comments, Notes, Minutes Message-ID: ----- Original Message ----- From: Haynes, Carla (LARA) To: joe harcz Comcast (joeharcz at comcast.net) Cc: Cannon, Patrick (LARA) ; Luzenski, Sue (LARA) ; Farmer, Mel (LARA) ; Turney, Susan (LARA) ; Duell, Elsie (LARA) ; Jones, Leamon (LARA) ; Gaston, Diamalyn (LARA) Sent: Friday, July 20, 2012 5:04 PM Subject: Amended Response to FOIA Response of 7-20-12 - State Plan Meetings, Public Hearing Comments, Notes, Minutes July 20, 2012 Mr. Paul Joseph Harcz, Jr. E-mail: joeharcz at comcast.net 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 Re: Amended Response to FOIA - State Plan Meetings, Public Hearing Comments, Notes, Minutes Dear Mr. Harcz, Jr.: This letter is an amended response to our July 20, 2012 letter which was in response to your July 13, 2012, email request for copies of public records, received on July 16, 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 as: ?I am writing today to request all documents related to the extremely illegal state plan hearings recently conducted. At a minimum I am requesting all written or spoken public comments submitted to MCB and, if any, the recordings and notes, or ?minutes? of these so-called ?public hearings? on the state plan, which by the way very few people with disabilities even knew about because MCB LARA made no proper and adequate notice in any form except belatedly on its web site.? A copy of your email is also attached. Although the Michigan Commission for the Blind did not conduct what you?ve described as ?? extremely illegal state plan hearings,? MCB has conducted five public meetings on its draft 2013 State Plan, July 9, 11 and 13, 2012 and can provide you with information to those meetings, as these may be the meetings you intended to identify and, as such, may be of interest to you. Your request is granted as to existing, nonexempt records in the possession of this department responsive to your request pursuant to MCL 15.235, Section 5(4)(b) of the FOIA. Attached are two documents in regards to the State Plan Meetings which includes the verbal comments at the meetings along with the written comments sent to us in regards to the Draft State Plan. At this point in time, all of the recordings of these meetings have not been formatted to be able to place them on a flash drive. We will send these records once this is accomplished. Sincerely, Carla Miller Haynes, FOIA Coordinator Michigan Commission for the Blind Attachments: 1. Email of 7/13/12 cc: Patrick Cannon Mel Farmer Susan Turney Elsie Duell Leamon Jones From: joe harcz Comcast [mailto:joeharcz at comcast.net] Sent: Friday, July 13, 2012 12:33 PM To: Cannon, Patrick (LARA) Cc: Craig McManus RSA; Carol Dobak; OCR Cleveland Office; MARK CODY; Elmer Cerano MPAS; Zimmer, Mike (LARA); Larry Posont MCB Comm.; lydia Schuck MCB Comm.; John Scott MCB Comm.; nfbmi-talk at nfbnet.org; Fredric Schroeder (by way of David Andrews); valarie Barnum Yarger MISILC Subject: request all info related state plan mcb July 13 2012 Request MCB LARA All Information Related to State Plan Hearings Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 810-516-5262 E-mail: joeharcz at comcast.net Re: Public Hearing Comments, Notes, Minutes Rehab Act, ADA, Etc. Patrick D. Cannon CENTRAL ADMINISTRATIVE OFFICE Michigan Commission for the Blind 201 N. Washington, 2nd Floor P.O. Box 30652 Lansing, MI 48909 Phone (voice): (517) 373-2062 Fax: (517) 335-5140 TTY (517) 373-4025 Toll-Free Numbers: 1-800-292-4200 (voice, answered in Lansing) 1-800-323-2535 (voice, answered in Escanaba) TTY 888-864-1212 (Sent via e-mail) Dear Mr. Cannon, I am a person who is blind, an advocate for those who are blind and those with other disabilities. I am writing today to request all documents related to the extremely illegal state plan hearings recently conducted. At a minimum I am requesting all written or spoken public comments submitted to MCB and, if any, the recordings and notes, or ?minutes? of these so-called ?public hearings? on the state plan, which by the way very few people with disabilities even knew about because MCB LARA made no proper and adequate notice in any form except belatedly on its web site. Make no mistake here I am not making a Freedom of Information Act request! I invoke the very Rehabilitation Act itself which funds and establishes the MRC to begin with. I invoke the requirement to make all public meeting and hearing information readily available and accessible to members of the public in a timely and accessible manner including those of course, like myself who are blind. I also invoke the Americans with Disabilities Act of 1990 (Title II, subpart e, communications, primary consideration), and the ?auxiliary aids and services? provisions of Section 504 of the Rehabilitation Act here for as I am blind the printed word is not accessible. An entity such as yours should be intimate with how to affirmatively comply with this request and prohibitions against charging a surcharge or any Stallings or delays. Now I request the written submissions as simple Word documents and/or e-mail attachments as my ?computer talks?. I use a screen reader. This information must be sent to my e-mail listed above. Any responses, including inevitable stalling must also be sent in accessible format. As per any recordings they may be sent on a thumb drive to my mailing address as an mp3 file. Again under law you may not charge me one dime for this any more than you can charge a deaf person the cost of interpreter services at these bogus hearings. Which you didn?t have by the way as that would violate the surcharge provisions of the ADA and 504. But you should and do know of your substantial violations Mr. Cannon as you are the State of Michigan ADA Coordinator, Director of the Michigan Commission for the Blind for crying out loud and the former Chair of the United States Access Board! A failure to timely respond to this let alone remit accessible information will result in complaints to OCR, the US Department of Justice, and legal action. Sincerely, Paul Joseph Harcz, Jr. Cc: National Federation of the Blind, MI Cc: ADAPT MI Cc: MCB Commissioners Cc: MRC Members Cc: RSA Cc: OCR, Ed. Cc: Michael Zimmer, Licensing and Regulatory Affairs Cc: Michigan Protection and Advocacy Services Cc: D. Gaston as Comments to State Plan Itself Michigan Commission for the Blind State Plan Comments from the Public Meetings Held on July 9, July 11 and July 13, 2012 The guidelines of receiving Public Comment were reviewed at the beginning of each meeting. Lansing Public Comments: Attendees: 1. Leamon Jones, Chairperson 2. Diamalyn Gaston, Recorder ? Meeting Secretary 3. Elsie Duell, Timekeeper 4. Pat Cannon, Director 5. Bob Robertson 6. Elizabeth White 7. Susan Turney 8. Sue Chinault 9. Julia Burdgick 10. Carla Haynes 11. Fred Schroeder #1 Hello, my name is Joe Sontag, I?m a regular attendee of commission meetings and other commission functions for quite some time and a long time participant of commission activities and some time critic. I don?t have a whole lot to say, particularly I read the state plan and the amendments and the attachments and I gotta say to state that it was probably one of the most dry repetitious things I?ve read in a long time but I do understand that there is a need for that to happen. Two points I wanted to hit on the first one is that I realize that for bureaucratic reasons if nothing else that there the State plan was written in such a way as to anticipate the fallout from the most recent executive order regarding services to blind people in Michigan. I know that this has been interpreted various ways, and I think I understand why it?s being done it saves the hassle of having to submit a whole bunch of stuff later on. However, I just wanted to point out that I and others are aware that at this moment we still have a commission board as constituted by PA 260 of 1978 as amended and other legislation and I would much rather have seen a situation where the standing commission board had a chance to weigh in on what turned out to be the final draft. My second point relates to the status of the Business Enterprise Program under the new proposed or very likely to be executive order. My major concern is that the final agency decision will be rendered by the director of the unit under which the proposed bureau would exist and as a person who?s been in the business enterprise program off and on since late 1989, as one who has served as an advocate for operators with grievances as chair of Elected Operators Committee several times, frankly this arrangement scares me to death and it does that quite simply because the very individual who?s in charge of the office that conducts our full evidentiary hearings for cases that get that far will be the very same person who renders the final agency decision. That person is getting input from sources that cannot be known or controlled about the status of various cases with the present Business Enterprise Program and its management and relationships that have developed between certain operators and certain high level staffers in state government right now I find it almost impossible that a person who is out of favor with any member of the business enterprise program staff for any reasons particularly management I find it impossible to think that that individual has a reasonable chance at justice which the person of course has the ability to take it beyond but that implies deep pockets from of one kind or another on the part any individual who take it beyond. I guess, I can?t rest easy with it. I?m thankful that I have other options in life. I?m not going to disappear if things get to a point where I find it impossible to stick around; others are not in that situation and are not as lucky, and I guarantee you that with things as they are currently the proposed plans for handling final agency decisions is only going to lead to more trouble, not less. Thank you for the opportunity to participate in this public hearing. #2 Good afternoon, my name is Fred Wurtzel I?m with the National Federation of the Blind of Michigan and I also would like to thank you for the opportunity to participate in this hearing this afternoon. Like Mr. Songtag before me I have significant concerns. One of the concerns that I have about this plan is that this is a gigantic change in the relationship between consumers and the agency has provider of rehabilitation services. There will be no longer be a consumer driven board which sets policy for the commission that will be more internalized into the structure of the agency. I don?t think this plan adequately reflects a way to monitor that consumers will continue to have a reasonable level of input into the decisions and policy making of the agency. There?s a term that?s used and I?m going to borrow it this doesn?t necessarily apply here exactly, it?s called maintenance of effort that means if you do something at a certain level at one point with regards to providing services that those services should be maintained at that level through into the future. What I?m anticipating here and maybe promptly so I hope is that this maintenance of effort will see a decline in the ability of consumers? actively participate in the policy and development in ongoing management of the Michigan Commission for the Blind or as it will be called the Bureau of Services for Blind Persons. I would like to request in my comments that RSA consider some sort of monitoring of the level of consumer involvement in this. Another aspect of this is that we will be going from a separate Commission for the Blind board which serves as the state rehabilitation council for the Commission for the Blind and that will be taken over by a joint rehabilitation council which will serve both Michigan Rehab Services and Michigan Commission for the Blind, again diminishing, severely diminishing input of blind persons. As it is now, three of five persons who make decisions, policy decisions for the agency must be blind. There will be seventeen members, I believe it?s seventeen on the state rehabilitation council and there is no provision on there at all for any blind person to be there. That doesn?t mean that a blind person won?t be there, that?s not my implication; however there is no requirement that any blind person be represented on that rehabilitation council. So we go from 60% of representation on the overall policy making board to potentially 0%. With regards to staff training, staff training has been an issue of concern by consumers. Our concerns are reflected in the off times repeated and as Joe mentioned in the plan the fact that member of measurements on the, within the state plan that the agency wasn?t able to meet its goals. In 2000, the goal for placement was 200, it dropped to 170 then to 160 - next year it?s for 161. According to the Governor in his public comments there were seventy thousand jobs available through Mi Jobs. It?s hard to imagine that with the vast resources of the Commission for the Blind $25,000,000 or so much of which went unspent that we couldn?t find 160 or 170 people jobs and I think this is reflected due to staff training. We have a number of people who are CRC eligible but don?t have CRC?s and so those are a number of issues that I think are important. I will be providing written comments by next Monday. #3 My name is Terry Eagle and I?m from Lansing and I?m here as president and representing the National Association of Blind Merchants of Michigan and an affiliate of the National Federation of the Blind and we have some real concerns about this state plan. First of all because of the fact that it comes out of the executive order, it?s our position that the executive order over reaches the governor?s authority and moves into that of the legislative body of the legislature and therefore there will likely be challenges to that on a legal basis. With respect of the State plan we believe that there is a great need for more training among the staff of the Commission for the Blind. It?s been proven that they are not in touch with the skills of blindness, what the abilities of blind people are and their recommendations of things to be put into individual plans and stuff just are not in sync with what blind people need in this state. As a member of the Merchants Division and our membership we are really concerned about the movement of the abolition of the Commission for the Blind Board which has had judicially the final agency decision on grievances, hearings and I was going to say arbitrations, but they don?t have a final say on that, but hearings on the, in the hearing system of grievances by blind licensees in the Randolph Shepherd and Public Act 260 Business Enterprise Program. Our concern is that the hearing office, we believe is corrupt, we believe that it is non-responsive to the American with Disability Act in Section 504 of the Civil Rights provisions of the Rehabilitation Act when it comes to accommodations for blind persons they refuse to give us materials in a format that blind people can readily use. They insist that all things be done by fax or paper or paper - print paper and they refuse to even communicate with us other than print paper and that?s a serious violation of both the ADA and the 504 provisions. We also believe that since the director of LARA will be the chief individual to make a final agency decision, we believe that there are some serious legal, ethical, and moral issues having to do with that person making a final agency decision considering that that individual is also the head of the Michigan Administrative Hearings System. We think that that should probably also be challenged legally and ethically. So, we believe that because of the lack of due process that blind vendors are getting now, that this will continue and under the new plan and that the fact that we?re not getting our needs met under the law as it stands that that will be complicated and ongoing giving the powers without that of individual blind persons being in the policy and review process. So, I thank you for this opportunity and we will see how it washes out. #4 I?m Mary Wurtzel with the National Federation of the Blind and my first comment is: Is there really someone in Washington DC that reads this thing? But anyway, no I?m sorry. I always have to have a little levity. But well one thing I noticed is there is a constant repetition of the fact that Michigan, we have a very high unemployment rate so therefore blind people can?t get jobs either. I understand that this is certainly true, but I just felt that, and I?m no connoisseur of state plans, but it just seems that we should come up with more creative ways to come up with strategies to do some of the things that were mentioned in the plan. For instance, it?s true that blind males and sighted males are not achieving as highly in school and it seems to me, I think that it was 9.2 of African American or regular guys. I?m not sure. Oh that didn?t sound right, but anyway, but that percentage was the highest percentage that achieved employment. Anyway, because a lot of the failure starts to take place in school (especially for boys), it seems that, I realize that the commission has authority, I mean the bureau when people get to be 14 is that right, is that the age for transition, but it just seems to me that somehow there has to be some cooperation even before that because boys are failing in school, blind, sighted, or otherwise and it just seems to me that we can be creative in what we can do to encourage especially the boys. And also I was very interested in the whole; I heard this before about reaching out to the minority groups in Michigan. And when I first heard this, I was very happy that we did that but it seem to me that what we said we were doing to reach out to the Native American community was the same kinds of things that we have been doing and just seems to me that maybe we can sit down and think of some other ways to reach the native American community, and we have a very large of Arab community in Dearborn, and also the Hispanic and African American communities. I would just like to see us develop even more strategies and it just seems like, well when I was reading this, which I was really glad the computer was doing this so that I didn?t go to sleep, but it just seemed like it was pretty ho-hum, and so my comment is just can we jazz things up a little bit in this whole government thing and get a little bit more excited about what we?re doing with state plans and such likes. So that?s my comment. Escanaba Public Comments: Attendees: Leamon Jones Diamalyn Gaston ? recorder and secretary Larry Posont and driver Carol Berquist Christine Pada Ed Haines # 1 Hello, my name is Carol Bergquist from Escanaba Michigan. I?m making comment on behalf of the Michigan Rehabilitation Council or the MRC. The MRC is the federally mandated State Rehabilitation Council designated to work in strategic partnership with the Michigan Rehabilitation Services or (MRS), the public vocational rehabilitation VR program for the general population of people with disabilities. With the signing of the Executive Order 2012-10 by Governor Snyder, the MRC has been abolished. At the same time, the Michigan Council for Rehabilitation Services (MCRS) has been created and will serve as the State Rehabilitation Council for both the blind and general service bureaus. We look forward to our new responsibilities as prescribed in the Rehabilitation Act, as amended in Section 105. We anticipate the establishment of a strategic partnership with the Bureau of Services for Blind Persons (BSBP) pursuit to our roll of reviewing, reanalyzing and advising the BSBP administration. Our intent is that our membership will serve as the voice of customers with disabilities, ensuring that the VR system for persons with low vision and blindness are receiving services that upholds the spirit and prescriptions of the federal law as related to employment outcomes. Thank you for this opportunity to make comment. #2 I?m Larry Posont member of the Commission Board. The only comment that I have for today is that #1 this building is accessible - proper signage and other things and #2 what was the announcement made for this meeting and how was it brought up and where was it sent to? Thank you. Kalamazoo Public Comments: Carrie Martin ? recorder and secretary Lisa Kisiel Shannon McVoy Christine Boone #1 Hello, my name is Beth Childress. I am making comment on behalf of the Michigan Rehabilitation Council or the MRC. The MRC is the federally mandated State Rehabilitation Services designated to work in strategic partnership with Michigan Rehabilitation Services (MRS), the public vocational rehabilitation (VR) program for the general population of people with disabilities. With the signing of Executive Order 2012-10 by Governor Snyder, the MRC has been abolished. At the same time, the Michigan Council for Rehabilitation Services (MCRS) has been created and will serve as the State Rehabilitation Council for the blind and general service bureaus. We look forward to our new responsibilities as prescribed in the Rehabilitation Act, as amended, Section 105. We anticipate the establishment of a strategic partnership with the Bureau of Services for Blind Persons (BSBP) pursuant to our role of reviewing, analyzing and advising the BSBP administration. Our intent is that our membership will serve as the voice of customers with disabilities, ensuring that the VR system for persons with low vision and blindness are receiving services that upholds the spirit and prescriptions of the federal law as related to employment outcomes. Thank you for this opportunity to make comment. Detroit Public Comments: Attendees: Leamon Jones Diamalyn Gaston ? recorder and secretary Cathy Cove Gwen McNeal. #1 Hello my name is Dennis Stanford. I?m making comment on behalf of the Michigan Rehabilitation Council or the MRC. The MRC is the federally mandated State Rehabilitation Council designated to work in strategic partnership with Michigan Rehabilitation Services the public vocational rehabilitation (VR) program for the general population of people with disabilities. With the signing of Executive Order 2012-10 by Governor Snyder, the MRC has been abolished and at the same time, the Michigan Council for Rehabilitation Services (MCRS) has been created and will serve as the State Rehabilitation Council for the blind and general service bureaus. We look forward to our new responsibilities as prescribed in the Rehabilitation Act, amended, Section 105. We anticipate the establishment of a strategic partnership with the Bureau of Services for the Blind Persons (BSBP) pursuant to our role of reviewing, analyzing and advising the BSBP administration. Our intent is that our membership will serve as the voice of customers with disabilities, ensuring that the VR system for persons with low vision and blindness are receiving services that upholds the spirit and prescriptions of the federal law as related to employment outcomes. Thank you for this opportunity to make comment. #2 John C. Scott - I had the opportunity to read most of the state plan and I supposed it was emailed to me but I didn?t have the time to finish it. I have things that created questions for me. First, there seems to be the assumption that it is now the Bureau of Services for Blind Persons that apparently is going to be the new rubric that will be called once the governor?s executive order, I think it is 20-10-4; I?m not sure, goes through. But that is not the state of affairs at this point. In the, and my guess is that it is being done because by the time the commissioner of RSA approves the plan then maybe that?s what it is going to be. That?s being, I think being a bit presumptuous. I also concern is that there are a number of changes that says where the bureau name is giving, this document has not been changed or last changed by Leamon Jones, I forget the exact terminology; for example April 20, 11 and I know of course that April 20, 11 there were no Bureau of Services for Blind Persons. I?m also took note of what It appears to that the Michigan Commission for the Blind and the Michigan Rehab Services are coming under a general umbrella of what they call a rehab unit that is ultimately under LARA. It seems to be a joining of the two indirect way so rather that a class 2 agency that is ?. The situation with the advisory board of course is troublesome that is mixed in there in terms of that its going to four blind and this and I guess I?m merging the executive order along with this, it going to be four blind people and three sighted people on this advisory board, but they have a personal voice advises means we tell you what we think and then the executive does whatever he thinks needs to be done. I also was a bit puzzled [i]in that, Pat Cannon is named as, I think as assistant director I don?t that just perhaps for the state plan or not. But I did not read anything indicating what are the requirements for becoming the director. The director sits on the state rehab unit as an exofficio non- voting member of that board and the same goes for the person that is director of MRS so they really have no authority other than perhaps some kind input so maybe they can give some advice to this state rehab board. So we have essentially advisory board in all of it comes under LARA so it seems like something that was concise, complete and thorough is become really something that is very possibly a confuse situation. I think since counselors and what is the teacher therapist their responsibilities even though their credential are specified and I think all the requirements for the management should be specified somewhere and I don?t ask them to be under Civil Services but even if it is then of course Civil Service will probably have to be amend it since this is a new creature being created. But I think that the state plan as written is problematic. I also didn?t pick up any enforcementees when this new bureau is not doing what it is suppose to do in terms of providing services for the blind. The question I have then is well what can a citizen do with enforcement. I notice some kind of connection is the CAP. It does not have a stellar reputation either from the experience I had in terms of referring folks to the client advocacy program. So I think this, at least from my recommended reading, partial reading of the state plan itself I think that there is some more that needs to be done, hopefully by the meeting we have I think it is on the 24th. I will have a little bit more that I can say regards to that but that is essentially my statement. Gaylord Public Comments: Attendees: Pat Cannon Bob Robertson Beth White Sue Luzenski Sarah Oberlin Larry Posont Ken Stucki- driver for Larry #1 Larry Posont - I just wanted it to be known on the record that I?m here. Michigan Commission for the Blind State Plan Written Comments Received by July 16, 2012 These are all of the written comments submitted by the close of business on July 16, 2012. Public Comment #1 This is the official position of the members of the National Federation of the Blind of Michigan concerning the state plan and services to blind people. Thank you. Mike Powell 1st-Vice-President National Federation of the Blind of Michigan July 16, 2012 Mike Powell 3253 Dolores Avenue Warren, Michigan 48091 MPOWELL at WOWWAY.COM 2013 MICHIGAN BLIND STATE PLAN COMMENTS Although Executive Order 2012-10 keeps intact the former commission as a discrete and separate organization with responsibility strictly for blind persons, we are concerned that the executive order may reduce the level of consumer control of vocational rehabilitation and related services to blind citizens of Michigan. The following comments contain our recommendations to maintain proper consumer control of services to the blind. BACKGROUND Executive Order 2012 abolishes the Michigan Commission for the Blind Board. The board is a five-person Commission, three members of which must be blind. Following are some of the major functions of the Commission as mandated by statute: Public Act 260 of 1978 Following is a list of broad powers and their foundation. 1. AN ACT to revise and codify the laws relating to blind persons and visually handicapped; 2. to create a commission; 3. to prescribe its powers and duties and those of other state agencies relative to blind persons; 4. to provide services, education, training, and assistance to blind persons; 5. to regulate concessions operated by blind persons; 6. To transfer powers, duties functions, and appropriations; and to repeal certain acts and parts of Acts. In the above it is clear that the five-person commission was to be responsible for services specifically to blind persons. The list below sets forth duties of the commission board. 393.352 Commission for blind; creation; appointment of members; chairperson; appointment and evaluation of director of commission; terms, compensation, and expenses of members; officers; quorum. 1. Three of the members shall be blind persons. 2. One of the members shall be designated by the governor to serve as the chairperson. 3. The commission shall recommend to the director of the department a person to serve as director of the commission 4. from a list of eligible persons certified and submitted by the department of civil service who shall be classified as a civil service employee, 5. Should that person be rejected, the procedure shall be repeated until a director is appointed. 6. The commission shall evaluate the performance of the director annually and submit its evaluation and recommendations to the director of the department. RECOMMENDATIONS 1. Appointment of a blind person to serve as the chairperson of the Advisory Commission: Executive Order 2012-10 replaces the current policy-making commission board with an advisory commission for blind persons. The advisory commission will be comprised of seven members, four of whom must be blind. Section II of the executive order states in part: A. The Commission for Blind Persons ("Commission") is created as an advisory commission within the Department of Licensing and Regulatory Affairs. B. The Commission shall consist of seven members appointed by, and serving at the pleasure of, the Governor. Four of the members shall be blind persons. D. The Governor shall designate a member of the Commission to serve as its Chairperson. The Chairperson shall serve at the pleasure of the Governor. Executive Order 2012-10 states that the governor will appoint a chairperson from the members of the advisory commission; however, the executive order does not require that the chairperson be blind. To maintain credibility of the advisory commission among blind consumers, we believe that it is essential that the chairperson be blind. For this reason we strongly urge the governor to name a chairperson of the advisory commission who is blind. 2. Appointment and supervision of the director of the Bureau of Services for Blind Persons: A major function of the current commission board is the power to recommend an individual to serve as the commission director and to evaluate his or her performance. The executive order makes no mention of the process to be used in appointing and evaluating the director of the Bureau of Services for Blind Persons. We strongly recommend that the governor instruct the director of the Department of Licensing and Regulatory Affairs (LARA) to consult with the advisory commission in the appointment of a bureau director and consult with the advisory commission in the ongoing evaluation of the bureau director. 3. Randolph-Sheppard Disputes: Another critical function of the current commission board relates to the dispute resolution process for complaints brought under the Randolph-Sheppard blind vending program. Under current law, the commission board reviews the findings of an administrative law judge and renders final agency action on behalf of the commission. Section I of the executive order states in part: E. Any authority, powers, duties and functions relative to final agency decisions for cases arising under the Randolph-Sheppard Act, 20 U.S.C. 107 to 107f, the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 U.S.C. 732, and the Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to MCL 393.369, are transferred from the Commission for the Blind to the Director of the Department of Licensing and Regulatory Affairs. We strongly recommend that the governor instruct the director of LARA to delegate the authority to render final agency action related to Randolph-Sheppard disputes to the advisory commission. 4. State Rehabilitation Council: Under current law, the consumer-controlled commission board carries out the functions of the State Rehabilitation Council. The executive order sets up a single State Rehabilitation Council to serve both the general agency and the agency for the blind made up of 17 persons, a majority of whom must be persons with a disability. Unlike the commission, there is no requirement that any of these individuals must be blind. This is a troubling reduction in representation in the policy-making and oversight activities of the agency for the blind. We strongly recommend that the governor instruct the director of LARA to constitute a separate State Rehabilitation Council for the Bureau of Services for Blind Persons. Public Comment #2 1. To the best of my knowledge and belief, MCB made no effort to publicize the state plan hearings beyond posting notice on its web site, as if to ensure that only those blind people who make it their business to track closely the activities of the Commission would be aware of the locations, times, and strict rules set down for these hearings. 2. The hearing that I attended was held at a location that did not meet accessibility requirements as to proper signage on all permanent rooms and which has been the subject of accessibility complaints for many years. The hearing that was conducted in Detroit took place at a building that houses offices of the Commission and that has become the focus of a lawsuit brought by a disabled individual who finds many accessibility issues. Other reports that have reached me suggest strongly that MCB and its director have failed to respond effectively to the numerous ADA-based accessibility complaints, even as it continues to allege that it holds all of its functions in accessible meeting places. 3. I am very concerned by the fact that our Commission Board was shut out of any and all activity relating to the development of the state plan document, as far as I know. 4. For reasons stated above, I find it impossible to believe that any claims made by the Commission may make regarding the representative nature of the public comments received at these hearings to be credible. 5. Our governor has issued recently an executive order that will have far-reaching and potentially destructive effects on services to blind people in Michigan. One effect of this executive order was to cause MCB staff to write the state plan document in future tense, hiding the fact that our agency is still a consumer-controled and directed agency and will remain so at least until October first of this year. 6. The proposed state plan reflects a provission of the Governor's executive order that places the power of taking the final agency decission in grievances brought by operators in our Business Enterprise Program in the hands of the director of the the Bureau of Services to Blind Persons' parent department. The person named in the state plan document, Mike Zimmer, is not the parent department's director, but its chief deputy director. It is also true that Mr. Zimmer is in charge of the Michigan Administrative Hearings System (MAHS), the very entity that conducts the full evidenciary hearings required by the Randolph-Sheppard Act. At present, these decissions are taken by the Commission Board, which must act in accordance with Michigan's open meetings act. Given that the Bureau director and BEP staff will have secret opportunities to introduce off-the-record evidence in each case through undocumented communication with the department director or their designee and given that the overseer of MAHS can influence each grievance hearing, I find an unacceptible conflict of interest in this proposed arrangement. 7. Finally, given the number of problems exposed that are the responsibilities of MCB management, the deteriorating level of service received by Commission consumers, especially those in the Detroit metro area and the contempt shown openly by MCB upper management towards blind consumers generally and the Board that currently has the power to direct it particularly, I hope that those at RSA who are responsible for evaluating the proposed state plan and all related materials do so critically and with a mindset that encourages the asking of searching questions of the Agency and commenters alike. Sincerely, Joseph Sontag 1204 Morris Avenue Lansing MI 48917 E-mail: suncat0 at gmail.com. Public Comment #3 July 15 2012 More Comments and More Violations in State Plan Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: D. Gaston via internet All, I quote from Executive Order 2012-10: ? Any authority, powers, duties, functions, records, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement of the Director of the Commission for the Blind are transferred to the Director of the Department of Licensing and Regulatory Affairs. ? These are clearly non-delegable authorities to non VR entity under the Rehabilitation Act and are an invalid exercise of the Designated State Agency cited in: ?TECHNICAL ASSISTANCE CIRCULAR RSA-TAC-12-03 DATE: April 16, 2012 ? Specifically here: ?In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). ? Bottom line here is that the entire MCB State Plan and the Executive Order creating it are an invalid abuse of federal law and an open knowing misappropriation of federal VR funds to a non-vocational entity (DSA/LARA). Sincerely Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: MPAS Cc: MRC Cc: NFB, ACB Cc: RSA Cc: several Public Comment #4 Conflict of Interest and Non -delegable Authorities July 15, 2012 Comments on MCB State Plan Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net All, note the following from the ludicrous Michigan Commission for the Blind State Plan: ?2. The name of the designated state vocational rehabilitation unit is: Bureau of Services for Blind Persons (?BSBP?), under the Rehabilitation Act of 1973, as amended, 29 USC 701 et seq. The Bureau of Services for Blind Persons serves as the State Licensing Agency under the Randolph Sheppard vending facilities for blind in federal buildings act, 20 USC 107 to 107f. Any authority, powers, duties and functions relative to final agency decisions for cases arising under the Randolph Sheppard Act, 20 USC 107 to 107f, the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 USC 732, and the Blind and Visually Disabled Persons Act, 1978 PA 260, MCL 393.351 to MCL 393.369, lies with the Director of the Department of Licensing and Regulatory Affairs.? First of all and once again the signaturre on the pre-print is not the Director of LARA which isn?t a Vocational Rehabilitation entity in the first place, but that of LARA Deputy Director Michael Zimmer. Now, Michael Zimmer runs the Michigan Administrative Hhearings System where Business Enterprise Operators and in fact VR clients can take complaints. Currently the Michigan Commission for the Blind board under PA 260 and rules makes the final agency determination for the SLA as a safe guard in due process and equal protection under law, all of which has been routinely violated over the years by MAHS to begin with in documented fashion including substantial violations under Zimmer?s direction of the Americans with Disabilities Act and Section 504 of the very Rehabilitation Act all are violating here. Moreover, this is at cross purposes for if the illegal Executive Order 2012-10 takes place it would eliminate PA 260 which establishes the State Priority to begin with. I know this sounds confusing. That is because it is a mish mash of multiple violations of both state and federal laws to numerous to count. But, clearly the Department of Licensing and Regulatory Affairs cannot serve the interests of blind folks here and their rights to fundamental due process and equal protection under law when the self-same entity runs the quasi-judicial proceedings and then also makes ?the final agency determination?. There can be no impartiality by any measure here. It is a codified conflict of interests making the Designated State Agency judge and jury all wrapped up in the same package. This is a VR program for people who are blind after all. In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c) (2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). Thus this is simply a gross conflict of interest, institutionalized denials of blind in due process proceedings that will be arbitrary and capricious, and more non-deligable authorities over federal VR funds illegally sought by the Designated State Agency. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: NFB MI Cc: Michigan Protection and Advocacy Services Cc: Michigan Americans with Civil Liberties Union Cc: MRC Cc: several attorneys at law Public Comment #5 To Whom It May Concern: On behalf of Western Michigan University?s Rehabilitation Counseling/Teaching program, I am pleased to comment on the Bureau of Services for Blind Persons FY 2013 State Plan. The FY 2013 State Plan clearly demonstrates the long standing relationship between Western Michigan University and BSBP for the development and continued education of rehabilitation counselor/teachers to assure quality services for Michiganders with the disability of blindness. As seen in the FY 2013 State Plan, BSBP is a collaborative partner with Western Michigan University?s Rehabilitation Counseling/Teaching program. Both WMU and BSBP are committed to assuring that Michigander's with the disability of blindness are receiving the best possible services to meet their disability specific training needs. In this regard, the State Plan demonstrates BSBP's commitment to training "qualified" rehabilitation counsleors in accordance with the Rehabilitation Act through it's active involvement on the rehabilitation counseling/teaching admissions committee, Rehabilitation Counseling/Teaching Advisory Board, instructor and guest lectures, and clinical supervision of rehabilitation counseling/teaching interns. Given the impact of blindness on the functioning of an individual without skills in blindness, BSBP's state plan section on Comprehensive System of Personnel Development assures that rehabilitation counselor/teachers are prepared to not only provide needed vocational rehabilitation and counseling services, but also to understand the training and psychological needs of persons with congenital or acquired blindness. Michiganers with the disability of blindness are well served by BSBP's ongoing dedication to assuring dually trained (specialization in blindness) rehabilitaiton counselors as evidenced in the FY 2013 State Plan. Further, BSBP?s commitment to Michiganders with blindness is demonstrated in the FY 2013 State Plan by it?s ability to establish productive and ongoing relationships with multiple agencies throughout Michigan. These relationships are included in the FY 2013 State Pan and include, but are not limited to supported employment vocational services, independent living services, and transition services. Access to these partnerships is a key function to vocational rehabilitation services in a public vocational rehabilitation program - BSBP has clearly excelled and committed in this area. Western Michigan University?s Rehabilitation Counseling/Teaching program is committed to supporting BSBP?s expressed commitment to working collaboratively toward the goals of preparing qualified personnel in accordance with the Rehabilitation Act requirements. Further, Western Michigan University?s Rehabilitation Counseling/Teaching program fully supports BSBP?s efforts to recognize and embrace the diversity of Michiganders both in service delivery and personnel. If you have any questions or concerns regarding the comments herein on the Bureau of Blind Persons' FY 2013 State Plan, please feel free to contact me. Jennipher Wiebold, Ph.D., CRC Rehabilitation Counseling/Teaching Program Coordinator Associate Professor Western Michigan University Public Comment #6 ----- Original Message ----- From: joe harcz Comcast To: Patrick Cannon MCB Dir. Cc: Craig McManus RSA ; Carol Dobak ; OCR Cleveland Office ; MARK CODY ; Elmer Cerano MPAS ; zimmerm at michigan.gov ; Larry Posont MCB Comm. ; lydia Schuck MCB Comm. ; John Scott MCB Comm. ; nfbmi-talk at nfbnet.org ; Fredric Schroeder (by way of David Andrews) ; valarie Barnum Yarger MISILC Sent: Friday, July 13, 2012 12:32 PM Subject: request all info related state plan mcb July 13 2012 Request MCB LARA All Information Related to State Plan Hearings Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 810-516-5262 E-mail: joeharcz at comcast.net Re: Public Hearing Comments, Notes, Minutes Rehab Act, ADA, Etc. Patrick D. Cannon CENTRAL ADMINISTRATIVE OFFICE Michigan Commission for the Blind 201 N. Washington, 2nd Floor P.O. Box 30652 Lansing, MI 48909 Phone (voice): (517) 373-2062 Fax: (517) 335-5140 TTY (517) 373-4025 Toll-Free Numbers: 1-800-292-4200 (voice, answered in Lansing) 1-800-323-2535 (voice, answered in Escanaba) TTY 888-864-1212 (Sent via e-mail) Dear Mr. Cannon, I am a person who is blind, an advocate for those who are blind and those with other disabilities. I am writing today to request all documents related to the extremely illegal state plan hearings recently conducted. At a minimum I am requesting all written or spoken public comments submitted to MCB and, if any, the recordings and notes, or ?minutes? of these so-called ?public hearings? on the state plan, which by the way very few people with disabilities even knew about because MCB LARA made no proper and adequate notice in any form except belatedly on its web site. Make no mistake here I am not making a Freedom of Information Act request! I invoke the very Rehabilitation Act itself which funds and establishes the MRC to begin with. I invoke the requirement to make all public meeting and hearing information readily available and accessible to members of the public in a timely and accessible manner including those of course, like myself who are blind. I also invoke the Americans with Disabilities Act of 1990 (Title II, subpart e, communications, primary consideration), and the ?auxiliary aids and services? provisions of Section 504 of the Rehabilitation Act here for as I am blind the printed word is not accessible. An entity such as yours should be intimate with how to affirmatively comply with this request and prohibitions against charging a surcharge or any Stallings or delays. Now I request the written submissions as simple Word documents and/or e-mail attachments as my ?computer talks?. I use a screen reader. This information must be sent to my e-mail listed above. Any responses, including inevitable stalling must also be sent in accessible format. As per any recordings they may be sent on a thumb drive to my mailing address as an mp3 file. Again under law you may not charge me one dime for this any more than you can charge a deaf person the cost of interpreter services at these bogus hearings. Which you didn?t have by the way as that would violate the surcharge provisions of the ADA and 504. But you should and do know of your substantial violations Mr. Cannon as you are the State of Michigan ADA Coordinator, Director of the Michigan Commission for the Blind for crying out loud and the former Chair of the United States Access Board! A failure to timely respond to this let alone remit accessible information will result in complaints to OCR, the US Department of Justice, and legal action. Sincerely, Paul Joseph Harcz, Jr. Cc: National Federation of the Blind, MI Cc: ADAPT MI Cc: MCB Commissioners Cc: MRC Members Cc: RSA Cc: OCR, Ed. Cc: Michael Zimmer, Licensing and Regulatory Affairs Cc: Michigan Protection and Advocacy Services Cc: D. Gaston as Comments to State Plan Itself Public Comment #7 July 13, 2012 Comments MCB Proposed State Plan Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net To: D. Gaston MCB (and others) Dear Ms. Gaston, I am commenting on the following section of the Michigan Commission for the Blind?s draft state plan: ?Attachment 4.2(c) Input of State Rehabilitation Council Required annually by all agencies except those agencies that are independent consumer-controlled commissions. Identify the Input provided by the state rehabilitation council, including recommendations from the council?s annual report, the review and analysis of consumer satisfaction, and other council reports. Be sure to also include: List of 2 items ? the Designated state unit's response to the input and recommendations; and ? explanations for the designated state unit's rejection of any input or recommendation of the council. list end *The BSBP functions in accordance with the State Rehabilitation Council. This screen was last updated on Jul 27 2009 9:31AM by Leamon Jones ? First of all does anyone look at the dates on this garbage? Mr. Jones hasn?t updated this for three years which is a total admission in and of itself that the agency violated this provision year in and year out. Moreover, the current MCB Board and it is still current has not done this or even had the time or ability to do this. Further as documented elsewhere we?re referencing an SRC that does not exist and even the existing Michigan Rehabilitation Council didn?t get notice of these substantial changes to both state plans. By the way the Executive Order 2012-10 is not in effect even if it is legitimate to begin with as it won?t go into effect before August 27, 2012 if it does. Regardless this documents past and present violations of both the Independent commission?s role in State Plan development and that required of an SRC, let alone the utter and gross incompetence of Mr. Jones paid in excess of $100,000 in these regards. . This is the most Kafkaesque and ludicrous exclusion of consumers, and stakeholders from the process and documented at that that I?ve ever seen. Thus once again the entire state plan is invalid on its face and I urge RSA Deputy Director Anthony to not approve the state plan here or that of Michigan Rehabilitation Services until it comes into compliance with all applicable portions of the Rehabilitation Act including provisions for consumer control and input into the functions of this agency. Sincerely and Nothing about Us Without Us, Paul Joseph Harcz, Jr. Cc: Craig McManus, RSA Cc: Carol Doboc, RSA Cc: Current commissioners MCB Cc: MRC Members Cc: National Federation of the Blind Cc: Michigan Protection and Advocacy Services Cc: Michael Zimmer Cc: Patrick D. Cannon Public Comment #8 Complaint OCR RSA Public Hearings Violate ADA/504 July 13, 2013 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net 810-516-52612 Re: Public Hearings MCB Lack of Access All, Note the following location is being used for a public hearing on the bogus and illegal State Plan by the Michigan Commission for the Blind today: ?Detroit July 13, 2012, 2:00 p.m. - 6:00 p.m. Cadillac Place 3038 W. Grand Blvd. Detroit, MI 48202 Room L150? Now this facility houses offices for the Michigan Commission for the Blind and other entities. It was required to meet the program access requirements of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act. Decades ago. It is also required to ensure that all public hearings especially those as critical to people with disabilities are fully accessible. Yet, this very building and the state actors are being sued for assorted violations of the ADA/504. Bottom line is this facility does not meet the renovations and alteration requirements of the ADA denoted in that suit. Moreover, as I am blind I will also note that this facility does not have required raised character and Braille signage on every permanent room, including room numbers in accordance with ADAAG Sections 3.40.1, 4, 5, 6 which is a program access issue. In short this Michigan Commission for the Blind is not accessible to the blind. Now this is a complaint to the Office of Civil Rights, U.S. Department of Education to immediately start action against the Michigan Commission for the Blind and its Director, Patrick D. Cannon for these and other chronic, and malicious violations of ADA and 504 which I?ve documented here and over the decade. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: NFB MI Cc: MCB Cc: MPAS Cc: Richard Bernstein, Esq. Cc: ADAPT MI Public Comment #9 Complaint OCR RSA Public Hearings Violate ADA/504 July 13, 2013 Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net 810-516-52612 Re: Public Hearings MCB Lack of Access All, Note the following location is being used for a public hearing on the bogus and illegal State Plan by the Michigan Commission for the Blind today: ?Detroit July 13, 2012, 2:00 p.m. - 6:00 p.m. Cadillac Place 3038 W. Grand Blvd. Detroit, MI 48202 Room L150? Now this facility houses offices for the Michigan Commission for the Blind and other entities. It was required to meet the program access requirements of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act. Decades ago. It is also required to ensure that all public hearings especially those as critical to people with disabilities are fully accessible. Yet, this very building and the state actors are being sued for assorted violations of the ADA/504. Bottom line is this facility does not meet the renovations and alteration requirements of the ADA denoted in that suit. Moreover, as I am blind I will also note that this facility does not have required raised character and Braille signage on every permanent room, including room numbers in accordance with ADAAG Sections 3.40.1, 4, 5, 6 which is a program access issue. In short this Michigan Commission for the Blind is not accessible to the blind. Now this is a complaint to the Office of Civil Rights, U.S. Department of Education to immediately start action against the Michigan Commission for the Blind and its Director, Patrick D. Cannon for these and other chronic, and malicious violations of ADA and 504 which I?ve documented here and over the decade. Sincerely, Paul Joseph Harcz, Jr. Cc: RSA Cc: NFB MI Cc: MCB Cc: MPAS Cc: Richard Bernstein, Esq. Cc: ADAPT MI Public Comment #10 July 8 2012 ADA 504 Etc. Request Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris Rd. Mt. Morris, MI To: Patrick D. cannon Former Director Michigan Commission for the blind Michael Zimmer Current dictator Michigan commission for the blind Via e-mail Mr. Cannon and Mr. Zimmer, I am writing you both today to request all documents related to basic ADA and section 504 (Rehab Act) compliance with the requirements to: 1. Make all facilities used by the current Commission for the Blind fully compliant with the program access, new construction and alteration requirements of both the ADA, Title II and Section 504 of the Rehabilitation Act of 1973. 2. Ditto for all requirements to make the facilities used for upcoming public hearings relative to the State Plan fully accessible in accordance with the above mentioned laws and the Americans with disabilities Act Accessibility Guidelines. 3. Ditto for meeting affirmatively all requirements for notice including in ?appropriate modes of communications? the public hearings denoted and to begin with tomorrow, also all affirmative provisions required to effectively communicate with the blind, deaf and blind/before at such meetings including of course again notices. ((Re: Tyler v. Manhattan, re: Title II, ADA, effective communications, re: ?auxiliary aids and services provisions of Section 504). These public hearings are invalid on their face as they violate fundamentals of the aforementioned laws and the constitutional guarantees that they are based upon. Send me, a blind person all of these things in accessible format (re: do it as a simple word document which my screen reader can read prior to aforementioned meetings.) Sincerely, Paul Joseph Harcz, Jr. Cc: NFB MI Cc: OCR, Ed. Cc: DOJ Cc: several attorneys at law Cc: RSA Cc: MRC Cc: MCB Commissioners Cc: MCBVI Cc: several media outlets Public Comment #11 Request Recording MCB State Plan Hearing July 9 2012 And ADA/504 Complaint Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458joeharcz at comcast.net To Patrick Cannon, Michigan commission for the Blind Michael Zimmer, Michigan LARA Via e-mail Sirs, I am writing today to request the recording of the State Plan Hearing held yesterday at the State Library in Lansing. I make this request in accordance with known responsibilities to make such recordings available under both the public hearings requirements of The Rehabilitation Act of 1973 (Title I) and the ?auxiliary aids and services? provisions in Section 504 of that same act. You may send this recording as an mp3 file on a ?flashcard? to my mailing address listed above. By the way the meeting violated the program access requirements of the Americans with Disabilities Act of 1990, Title II, and similar requirements for accessible meetings required by the Rehabilitation Act in that there was no and I repeat no raised character and Braille signage in accordance with the Americans with Disability Act Guidelines (3.40.1, 4, 5, 6). I don?t understand what this state doesn?t realize about the long standing requirement to have all permanent rooms, including room numbers so identified and most especially for agencies that offer vocational rehabilitation services and hold said public hearings like the one yesterday. It is inexcusable that this facility which houses the Braille and Talking Book library and was used for this public hearing so egregiously and maliciously violates the ADA now nearly twenty two years after it was enacted. Thus this stands as a complaint and documentation of a complaint for systemic, willful, and malicious discrimination against the entire class. It also invalidates these so-called public hearings! Yu Mr. Cannon as the former head of the United States Access Board and State of Michigan ADA coordinator should be ashamed for such ongoing acts of discrimination! Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: MCBVI Cc: OCR, Ed. Cc: DOJ Civil Rights Division, Disabilities Rights Section Cc: NFB Cc: Richard Bernstein, Esq. Cc: Mark Cody, MPAS Cc: Great Lakes ?TAC? Cc: RSA _______________________________________________ nfbmi-talk mailing list nfbmi-talk at nfbnet.org http://nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org To unsubscribe, change your list options or get your account info for nfbmi-talk: http://nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net Public Comment #12 All, This building houses daily Michigan Rehabilitation Services and Michigan Commission for the Blind Offices. Program access to such facilities was required as of January 26, 1992. Yet they are not compliant to this day. Moreover, this facility is required to have raised character and Braille signage on every permanent room including room numbers (ADAAG 3.40.1, 4, 5, 6). It does not. Moreover all Vocational Rehabilitation Agencies are required to hold public hearings in accessible facilities. Both the Michigan Commission for the Blind and the Michigan Rehabilitation Services are holding public hearings this very week on its so-called, and highly illegal state plan in this very inaccessible building. The ADA is a civil rights law. We people with disabilities have the right to access our government facilities! It is incredible at the amount of documentation I?ve given over the last decade on these issues without any compliance! Sincerely, Joe HarczNational Federation of the Blind ADAPT Woman sues state, says Detroit office building hinders handicapped | The Detroit News | July 11, 2012 at 1:00 am Woman sues state, says Detroit office building hinders handicapped List of 3 items ? By Robert Snell ? The Detroit News ? 0Comments list end Detroit? A Farmington Hills woman sued the state in federal court Tuesday, alleging workers with disabilities are denied equal access to a state office building in Detroit. Michigan Economic Development Corp. employee Jill Babcock said wheelchair ramps are too steep outside the Cadillac Place building on West Grand Boulevard, and the facility lacks available handicap parking. The building, which formerly served as General Motors Corp. headquarters, was renovated in 2002 but failed to comply with the Americans with Disabilities Act, according to the lawsuit. Babcock wants to force the state to comply with the disabilities act. rsnell at detnews.com (313) 222-2028 Public Comment #13 July 12 2012 Request Public Hearing Information Rehabilitation Act Etc Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd Mt. Morris, MI 48458 joeharcz at comcast.net ToPatrick Cannon Michigan Commission for the Blind Michael Zimmer, Michigan Department Licensing and Regulatory Affairs (Via-email) Sirs, in accordance with Relevant Sections of Title I and Section 504 of the Rehabilitation Act of 1973 as amended I am writing to request in a timely and accessible format all notes, ?minutes? and recordings of the following public hearings on our State Plan: ?Lake Superior Room Escanaba July 11, 2012, 2:00 p.m. - 6:00 p.m. Escanaba Office State Office Building 305 Ludington Escanaba, MI 49829 Conf. Room 2nd Floor Kalamazoo? I request all notes or ?minutes? as simple Word documents sent to my e-mail address listed above,. I also request any recording be sent to my mailing address on a flash card as an mp3 file. Aside from the above referenced laws I, as a blind person also invoke The Americans with Disabilities Act, Title II, subpart e, communications, primary consideration in these regards. A failure to respond in a timely and accessible format, or to not remit said documents and recordings is actionable,. In addition an attempt to use any state law to delay or deny the application of these aforementioned federal civil rights laws is a violation of the general provisions of both the ADA and Section 504. In other words federal civil rights laws trump abused state laws. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: RSA Cc: OCR Cc: Michigan Protection and Advocy Services Cc: MRC Members Cc: NFB Cc: ADAPT Cc: MCBVI Cc: DOJ Public Comment #14 The Michigan Department of Licensing and Regulatory Affairs does not even come close to meeting this: UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES REHABILITATION SERVICES ADMINISTRATION WASHINGTON, D.C. 20202-2800 TECHNICAL ASSISTANCE CIRCULAR RSA-TAC-12-03 DATE: April 16, 2012 ADDRESSEES: STATE VOCATIONAL REHABILITATION AGENCIES STATE REHABILITATION COUNCILS TECHNICAL ASSISTANCE & CONTINUING EDUCATION CENTERS AMERICAN INDIAN VOCATIONAL REHABILITATION PROGRAMS CLIENT ASSISTANCE PROGRAMS CONSUMER ADVOCACY ORGANIZATIONS SUBJECT: Organizational Structure and Non-Delegable Responsibilities of the Designated State Unit for the Vocational Rehabilitation Program PURPOSE: Through this technical assistance circular (TAC), the Rehabilitation Services Administration (RSA) provides guidance on the federal requirements governing the organizational structure of, and the non-delegable responsibilities to be performed by, the designated State unit (DSU) for the vocational rehabilitation (VR) program, authorized under Title I, Part B, of the Rehabilitation Act of 1973, as amended (Rehabilitation Act). RSA has determined that clarification of the relevant statutory and regulatory provisions is needed in light of inquiries from VR agencies and the results of its recent monitoring activities. The guidance contained in this TAC covers each of the federal requirements and further explains: ? the meaning of the term ?other rehabilitation? for the purpose of satisfying the organizational requirements for the DSU within the designated State agency (DSA); ? the calculation used to determine the percentage of DSU staff required to perform the vocational or other rehabilitation work of the DSU; ? factors to consider when determining if the DSU is located at a level comparable to other major components of the DSA; and ? additional factors related to the assessment of the DSU?s ability to perform its non-delegable responsibilities. This TAC retires prior guidance issued through RSA-PI-75-31, RSA Policy Statement on Interpretation of State VR Organizational Requirements of the Rehabilitation Act as amended, June 3, 1975; RSA-PI-77-26, RSA Policy Statement of Interpretation of State VR Organizational Requirements of the Rehabilitation Act, as amended July 26, 1977 (addendum to RSA-75-31); and RSA-PD-96-02, Special Education Programs as "Other Rehabilitation" for Purposes of the Application of the Provisions of Sections 101(a)(1)(B)(i) and (2)(A)(i) of the Rehabilitation Act of 1973, as amended, November 7, 1995. These prior issuances contained outdated citations, described regulations that are no longer in effect, or included information that is restated in explanatory guidance to current regulations. However, any still valid statements of policy found in these older issuances are incorporated in this TAC. FEDERAL REQUIREMENTS: Since 1920, when the VR program was first authorized under the Smith-Fess Act, federal requirements governing the organizational requirements for the VR program have changed significantly. The Smith-Fess Act required that the VR program be administered by State Boards of Vocational Education. The 1954 amendments to the Vocational Rehabilitation Act (VR Act), the authorizing federal legislation for the VR program at that time, created another organizational structure option for States in administering the VR program. Specifically, those amendments permitted the VR program to be administered by a state agency that was primarily concerned with VR and other rehabilitation. In other words, an independent state agency could be established to administer the VR program and other programs for individuals with disabilities. The 1965 Amendments to the VR Act contained the last significant change in the statutory provisions related to the state administration and organization of the VR program. In response to a perceived need for greater flexibility at the state level, the 1965 Amendments also allowed the VR program to be administered by a state agency that contained at least two other units administering a program of education, health, welfare, or labor. Congress clearly intended to achieve a balance between state flexibility in the administration of the VR program, while at the same time preserving the integrity and autonomy of the program by imposing the organizational unit requirements described below, which were subsequently incorporated into the Rehabilitation Act and have been maintained since that time. Section 101(a)(2)(A) of the Rehabilitation Act and its implementing regulations at 34 CFR 361.13(a) require that the VR State Plan shall designate a state agency as the sole state agency to administer the plan. The state agency designated to administer the VR State Plan must be either: 1) a state agency primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities; or 2) a state agency that includes a VR bureau, division or other organizational unit (Section 101(a)(2)(B) of the Rehabilitation Act and 34 CFR 361.13(a)). If the state agency contains a VR bureau, division or other organizational unit, Section 101(a)(2)(B)(ii) of the Rehabilitation Act and 34 CFR 361.13(b) require that the VR bureau, division or VR organizational unit must: ? be primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities, and be responsible for the VR program of the DSA; ? be administered by a full-time director; ? employ staff on the rehabilitation work of the organizational unit all or substantially all of whom devote their full time to such work; and ? be located at an organizational level and have an organizational status within the DSA comparable to that of other major organizational units of the DSA. In addition, regulations found at 34 CFR 361.13(c) require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). At a minimum, these ?non-delegable? responsibilities relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services (34 CFR 361.13(c)(1)(i)); ? the determination that individuals have achieved employment outcomes (34 CFR 361.13(c)(1)(ii)); ? policy formulation and implementation (34 CFR 361.13(c)(1)(iii)); ? the allocation and expenditure of VR funds (34 CFR 361.13(c)(1)(iv)); and ? the participation of the DSU in the one-stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662 (34 CFR 361.13(c)(1)(v)). TECHNICAL ASSISTANCE: Although RSA can best determine whether a state is complying with the organizational requirements for the DSU and DSA through the conduct of monitoring (Final Regulations 62 Fed. Reg. 6308, 6316 (February 11, 1997)), it is important that state officials and personnel responsible for the administration of the VR program understand each federal requirement to ensure that the state has in fact created the proper organizational structure that enables the DSU to exercise its non-delegable responsibilities for the VR program. Therefore, in an effort to assist States outside of the monitoring process, this TAC first provides guidance on each of the organizational requirements and then addresses the non-delegable responsibilities of the DSU. Administration of the VR Program and ?Other Rehabilitation? The DSA or the DSU, in those States where there is a DSU, must be primarily concerned with VR, or VR and other rehabilitation, of individuals with disabilities (Section 101(a)(2)(B) of the Rehabilitation Act and 34 CFR 361.13(a)(1) and (b)(1)(i)). According to these requirements, the primary function of the DSA or the DSU, if one exists, must be the delivery of VR or VR and other rehabilitation services to individuals with disabilities. Although the statute and regulations permit the DSA or the DSU to administer programs other than the VR program that assist with the rehabilitation of individuals with disabilities, the relevant provisions themselves neither define nor describe the meaning of the term ?other rehabilitation.? However, the preamble to the 1997 final VR program regulations clarifies that ?other rehabilitation? ?includes, but is not limited to, other programs that provide medical, psychological, educational, or social services to individuals with disabilities? (Final Regulations 62 Fed. Reg. 6308, 6316 (February 11, 1997)). The preamble to the Notice of Proposed Rulemaking (NPRM) for these final regulations also contains examples of programs or services that constitute ?other rehabilitation,? including independent living services, programs for individuals with developmental disabilities, services for individuals who are deaf or hearing?impaired, services for individuals who are blind or visually impaired, Social Security disability determinations, or another type of program related to individuals with disabilities (NPRM 60 Fed. Reg. 64476, 64481 (December 15, 1995)). In light of this regulatory guidance, the determination whether programs located within, or services provided by, the DSU constitute ?other rehabilitation? for purposes of the VR organizational requirements is dependent on the provision of services or supports provided by those other programs to individuals with disabilities, as well as the linkage between those services and supports and the VR program. For instance, a DSU may be located within a DSA that provides human services. Although the concept of ?other rehabilitation? is very broad as described above, not all human services can be considered to come within its scope. For example, the provision of medical, psychiatric, or social services to individuals with developmental disabilities, mental illness, or with alcohol and drug addictions would fall within the scope of ?other rehabilitation? because the primary purpose of those services is to benefit individuals with disabilities. On the other hand, the provision of other types of human services, such as those for the aging, child welfare, child care licensing, and crisis/emergency response would not fall within the scope of ?other rehabilitation? for purposes of the VR organizational requirements because the primary focus of each of these programs is not the provision of VR or other rehabilitation services to individuals with disabilities. The fact that these programs may, on occasion, benefit individuals with disabilities, does not alter the fact that the primary focus of these programs is to benefit a wider population. Consequently, the DSU must determine the primary purpose of the other programs that fall within its purview to ascertain if those programs constitute ?other rehabilitation? within the meaning of VR organizational requirements. Only then can the DSU ensure that substantially all of its staff are engaged in the provision of VR or other rehabilitation services, despite the inclusion of these other human service programs under its purview. As explained further below, an understanding of whether the scope of the programming administered by the DSA or DSU, if one exists, indicates that it is primarily responsible for the provision of VR and other rehabilitation services is critical for determining if all, or substantially all, of the DSU?s staff are employed full-time on the VR and other rehabilitation work of the unit. Full-Time Director Section 101(a)(2)(B)(ii)(II) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(ii) require that the DSU, if one has been established within a larger DSA, employ a full-time director. Pursuant to this requirement, the DSU director must devote his or her full time to the work of the DSU, which would include the VR program and any other program under the purview of the DSU. While the director is not required to devote his or her full time to the VR component of the DSU?s work, title I funds must be used only to support the work of the director as it relates to the VR program. Although this statutory and regulatory provision is as important to the proper organizational structure and administration of the VR program, its language is clear and RSA has received no inquiries or encountered any issues of non-compliance during the monitoring process with respect to its implementation. Thus, no further explanation or guidance concerning this specific requirement is warranted at this time. Staff Performing VR or Other Rehabilitation Work The DSU, where one exists, must have ?a staff employed on the rehabilitation work of the organizational unit all or substantially all of whom are employed full time on such work? (Section 101(a)(2)(B)(ii)(III) of the Rehabilitation Act). VR program regulations clarify the meaning of ?substantially all? by requiring that the DSU have ?a staff, at least 90 percent of whom are employed full time on the rehabilitation work of the organizational unit? (34 CFR 361.13(b)(1)(iii)). The Rehabilitation Act recognizes the state?s flexibility regarding the manner in which it organizes the DSU and allows for the centralization of its administrative functions. Nonetheless, it remains consistent and clear that the DSA and the DSU, if one exists in the state, must be primarily concerned with the VR or VR and other rehabilitation needs of individuals with disabilities. Although the work of the DSU can encompass activities that extend beyond VR and other rehabilitation, the Rehabilitation Act and the VR implementing regulations prescribe that "all or substantially all staff" ? e.g., 90 percent -- of the DSU must devote their full time to the rehabilitation work of the unit, i.e., VR or vocational and other rehabilitation. This intention is further supported by guidance contained in the preamble to the 1995 NPRM, which reads as follows: This requirement means that if the organizational unit provides other rehabilitation services, in addition to vocational rehabilitation, the 90 percent staffing requirement applies to all unit staff providing rehabilitation services, not to just the vocational rehabilitation staff (NPRM 60 Fed. Reg. 64476, 64481 (December 15, 1995)). In other words, no more than ten percent of the DSU staff can devote any portion of their time to other programs and activities carried out by the DSU that do not constitute VR or other rehabilitation, as described above. To determine that the DSU employs a staff at least 90 percent of whom are working full-time on the rehabilitation work of the unit, RSA considers the entire DSU, as defined by the state in the VR State Plan, and all of its activities. RSA then determines which of those activities constitute the VR and other rehabilitation of individuals with disabilities. Once this determination is made, RSA then takes into account the total staff employed by the DSU and the manner in which they are apportioned to each of the DSU?s activities to determine the percentage that work full-time on the rehabilitation work of the DSU, as opposed to the percentage that are engaged, full- or part-time, on the non-rehabilitation work, if any, of the DSU. The Federal requirement refers to 90 percent of the staff, not 90 percent of the staff?s work hours, that must be devoted to the performance of matters related to VR or the other rehabilitation work of the DSU. This distinction is important when considering DSU staff who expend any time working on the provision of services or activities that do not constitute VR or other rehabilitation, such as universal and core service activities within Workforce Centers. The DSU must maintain careful time distribution records for any staff, again no more than ten percent, who spend any time working on matters that are not related to the VR or other rehabilitation work of the DSU. These time records are essential to ensure that this requirement is satisfied, as well as compliance with cost allocation requirements under the federal cost principles found at 2 CFR Part 225. For example, a DSU?s staff may be co-located in the state?s one-stop centers and it may meet its cost sharing obligations, in part, by paying for a proportionate share of the reception services provided by one-stop staff, or by assigning DSU staff to perform reception duties while again ensuring that the time of these staff is properly allocated to the VR program. Because the receptionists in the one-stop centers perform ?universal? activities for all individuals served by the centers, not only individuals with disabilities, they cannot be considered to be engaged in the provision of VR or other rehabilitation services. Therefore, if the DSU chooses to assign its staff to assist with the reception duties at the one-stop centers, it must be careful that the number of staff assigned to these or other such duties, even on a part-time basis do not exceed ten percent of its total staff. Furthermore, RSA recognizes that staffing of a state agency is a dynamic process in which the number of staff or full-time equivalent (FTE) positions can change on a frequent basis. In an environment where funding may be limited, it is not uncommon for hiring freezes and budget concerns to result in vacant FTE positions that may not be filled or that may be eliminated. Consequently, when reviewing a DSU?s compliance with this requirement, RSA only considers staff who are actively employed at a specific point during the review and does not consider vacant positions or FTEs assigned to the DSU, as those positions are not actively contributing to the provision of VR or other rehabilitation services within the DSU. The language of Section 101(a)(2)(B)(ii)(III) and the regulations at 34 CFR 361.13(b)(1)(iii) supports this approach through the use of such words as ?staff? and ?employed.? Additionally, when discussing this requirement, the preambles to both the 1995 NPRM (60 Fed. Reg. 64475, 64481(December 15, 1995)) and the 1997 Final Regulations (62 Fed. Reg. 6307, 6316 (February 11, 1997)) refer to ?all unit staff providing rehabilitation services? (emphasis added). Therefore, when making the determination that a DSU is in compliance with the requirement that 90 percent of its staff work full-time on VR or other rehabilitation activities, only staff actually employed by the unit will be taken into consideration. Finally, some DSUs include within their structures community rehabilitation programs (CRP) that employ both staff who provide rehabilitation services to individuals with disabilities and staff who engage solely in the production and manufacturing activities of the CRP. When determining whether substantially all of the DSU?s staff are engaged full-time in the provision of VR and other rehabilitation services, only those individuals employed within the CRP who provide rehabilitation services are considered to be performing VR or other rehabilitation activities, and not those individuals engaged in its production work. Organizational Level and Status of the DSU Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv) require that the DSU, where one exists, must be ?located at an organizational level and [have] an organizational status within the designated State agency comparable to that of other major organizational units of the designated State agency.? This particular requirement has remained unchanged since its inclusion in the 1965 amendments to the VR Act and, along with the other requirements discussed above, affirms a cardinal principle concerning the organization of the VR program ? that the VR program is an integral categorical program, not to be merged with other organizations of state government. The requirement that the DSU be located at a level and have a status comparable to that of the other major units of the DSA, in effect, places constraints upon the alternatives available to the State in designating an agency to administer the VR program. As clearly articulated in the Congressional Oversight Hearings of November 30 and December 10, 1973, the objective of these constraints is to prevent the submersion of the VR program within the structure of the DSA, which could reduce the program?s scope and effectiveness. The requirements have been consistently interpreted to mean that the VR unit must have clear, direct supervision of VR staff with regard to program policy, operations, and related program matters. When evaluating whether the DSU is at a comparable level to other major organizational units within the DSA, it has been the long-standing policy of RSA that such an evaluation will take into consideration such factors as: ? the directness of the reporting line from the VR director to the head of the DSA; ? the title, status, and grade of the VR director, as com?pared with those of the heads of other organizational units within the DSA; ? the extent to which the VR director can determine the scope and policies of the VR program; and ? the kind and degree of authority delegated to the director of the DSU for the administration of the VR program. Each of these factors should be considered when determining if the DSU is located at a level comparable to other major units of the DSA, and not submerged within the organizational structure of the DSA to such an extent that the DSU director is limited in his or her ability to have input into legislative and other matters affecting the VR program in a manner that is more restricted than that of other directors of comparable programs. However, with respect to the consideration of the title, status, and pay grade of the DSU director, RSA has not historically been involved in providing direction to the states regarding personnel matters, except as they relate to the requirements for a comprehensive system of personnel development. Absent a functional impact, differences in title, status and pay grade between the DSU director and other directors in the DSA may not raise concerns in connection with the federal requirements at Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv). On the other hand, if such differences reflect a devaluation of the DSU, this factor should be considered, along with the others mentioned herein, to determine the state?s compliance with the federal organizational requirements for the DSU and the ability of the DSU to carry out the non-delegable responsibilities specified in 34 CFR 361.13(c). Ideally the DSU director reports directly to the head of the DSA. However, given the complexity of some state government structures, the head of the DSA may find it necessary to require that the DSU director report to a deputy within his or her office instead. Such an organizational structure is permissible within the requirements of Section 101(a)(2)(B)(ii)(IV) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(iv), so long as the DSU director and the directors of the other major components are treated similarly. Under such arrangements, the deputy within the DSA?s office typically functions as a conduit of information and facilitator of communication between the DSU director and the head of the DSA, as well as with the heads of the other major units. Unlike the above-described organizational structure, some state government structures include a level of organization outside the head of the DSA?s office that incorporates the DSU within its own structure, thus creating an additional organizational layer between the head of the DSA and the DSU. While additional organizational layers between the DSA and the DSU may be permissible, their presence can complicate the determination of the proper placement of the DSU. When evaluating this intervening organizational level in light of the factors listed above, especially that of the directness of communication between the head of the DSA and the DSU director, RSA considers the role of the head of the intervening organization in terms of the administration of the VR and other programs located within the intervening level. Specifically, RSA considers whether this individual?s role interferes with the DSU director?s ability to perform the non-delegable functions listed at 34 CFR 361.13(c). For example, RSA will examine the involvement of the head of the intervening organization in decisions related to legislative, budget, strategic planning, policy development, and the allocation of resources (including staff) of the VR program, particularly as compared to the involvement of the heads of intervening levels in matters administered by the directors of other major components within the DSA. Under circumstances where the DSU director does not provide input on such matters directly to the head of the DSA, but rather does so through the head of the intervening organization, RSA will consider whether the input provided by the VR director is marginalized prior to being transmitted to the head of the DSA. The marginalization of such input could have a negative affect on the ability of the DSU director to carry out the non-delegable responsibilities for the VR program set forth at 34 CFR 361.13(c). In summary, RSA considers many factors when analyzing whether the DSU is located at a level comparable to other major components within the DSA. Except for the factor pertaining to the VR director?s ability to carry out the non-delegable functions required by 34 CFR 361.13(c), none of these factors are dispositive on their own. Instead, they all work together to help RSA determine whether the organizational structure established by the state meets the spirit and intent of the federal requirements. Non-Delegable Responsibilities As stated earlier in this TAC, Section 101(a)(2)(B)(ii)(I) of the Rehabilitation Act and 34 CFR 361.13(b)(1)(i) require that the DSU be responsible for the administration of the VR program. The statute does not describe the nature and scope of this responsibility or how it is to be carried out by the DSU. However, the VR program implementing regulations, found at 34 CFR 361.13(c)(1), require that certain functions be reserved solely to the staff of the DSU and that these functions may not be delegated to any other agency or individual (34 CFR 361.13(c)(2)). These ?non-delegable? functions relate to decisions affecting: ? eligibility, the nature and scope of services, and the provision of those services; ? the determination that individuals have achieved employment outcomes; ? policy formulation and implementation; ? allocation and expenditure of VR funds; and ? participation in the One-Stop service delivery system in accordance with Title I of the Workforce Investment Act (WIA) and the regulatory requirements specified in 20 CFR Part 662. RSA has long interpreted these provisions to require that the specified functions and activities be carried out by the DSU?s own staff (NPRM, 60 Fed. Reg. 64475, 64482 (December 15, 1995) and Final Regulations, 62 Fed. Reg. 6307, 6316 (February 11, 1997)). In addition, the VR unit must have clear and direct supervision over VR program staff with regard to program policy, operations, and related program matters. The non-delegation provisions are intended to, ?[strengthen] the role of the State unit by requiring that the unit have a substantial role in all decisions affecting the administration of the VR program whenever management functions within the State agency are centralized? (60 Fed. Reg. at 64482). Retaining these non-delegable functions within the DSU: Ensure[s] that State agencies that consolidate staff to administer multiple State and federally funded programs do not entrust these key VR programmatic decisions to individuals who lack experience in meeting the needs of individuals with disabilities?[T]he benefits derived from DSU retention of these functions ? enhanced program efficiency and effectiveness ? outweigh any costs that may be associated with the non-delegation requirements in the final regulations (62 Fed. Reg. at 6316). When certain functions, such as human resource development or financial management, are placed at the DSA or departmental level, it is important to assess the manner in which the DSU exercises a strong voice or provides effective input into the policy, planning, operations or similar program decisions made in these areas. While certain purely administrative functions may be performed by personnel outside the DSU, centralization of functions on the state agency level is impermissible if it results in interference with the decision-making capacity of the administrator of the DSU to direct the VR program in the state, given that the DSU has been designated as the entity responsible for administering the VR program under the VR State plan (34 CFR 361.13(b)(1)(i)). The following program management activities are among those that typically are carried out by an organization that is responsible for the day-to-day operational administration of a public VR program: ? development of legislative proposals and regulations regarding VR program funding and services; ? program planning and evaluation; ? personnel management; ? implementation and use of management information systems; and ? fiscal and statistical reporting. When centralization of these or other functions occurs, questions may arise as to whether the DSU has retained an effective voice in the making of key policy decisions to ensure that the DSU has sufficient responsibility for the administration of the VR program, as required by 34 CFR 361.13(c). In making judgments about the nature and degree of DSU involvement in these activities for the purpose of assessing compliance with the non-delegable functions, RSA recognizes that the Rehabilitation Act provides considerable flexibility to the state in the administration of the VR program and that the responsibility for the administration of the state Plan rests with the DSA in accordance with 34 CFR 361.13(a). However, the DSU is responsible for the administration of the VR program under the State Plan (34 361.13(b)(1)(i)), and for the operation of the VR service delivery system (34 CFR 361.13(c)(1)(i)). In assessing the nature and extent of the DSU's authority in carrying out its responsibility to administer the VR program, RSA will determine whether the DSU director indeed has the authority to administer the VR program and, if so, the extent of that authority, i.e., if it affords the DSU adequate input with respect to the administration of the centralized functions. RSA will review the degree of authority and involvement of all of the DSU?s functions taken together, and not with respect to one or more of the functions alone. Regarding the allocation and expenditure of VR funds (an area where questions concerning the DSU?s authority are more likely to arise), RSA will determine whether the DSU has responsibility for the approval of expenditures, the development and approval of contracts, budgeting for the program, development of the cost allocation plan and the procurement process. As the head of the DSU, the entity solely responsible for the expenditure and allocation of VR funds pursuant to 34 CFR 361.13(c)(1)(iv), the DSU director must be privy to all financial information about the VR program, not just informed of such information by the DSA, and should be in direct control of the decisions affecting the VR program. Decisions regarding staffing levels, priority setting, and the awarding of contracts fall within the scope of the expenditure and allocation of VR funds. Therefore, decisions related to these matters require the DSU to determine where to spend its resources for the benefit of the program and to meet the needs of individuals with disabilities within the state. As such, these decisions must ultimately be made by the DSU. For example, while the DSA may centralize contracting processing, decisions involving whether to contract for a service, the amount to be contracted, and the service to be procured, must be retained by the DSU since those decisions pertain to the allocation and expenditure of VR funds and the provision of VR services, both of which are non-delegable functions of the DSU (34 CFR 361.13(c)(1)(i) and (iv)). In addition, the director and staff of the DSU must have sufficient information regarding the fiscal resources available for use in the VR program, especially in those states where the DSA has centralized the payment and fiscal reporting processes for the entire agency. Because the DSU is solely responsible for the allocation and expenditure of VR funds pursuant to 34 CFR 361.13(c)(1)(iv), the DSU remains responsible for ensuring the accuracy of financial reports and the satisfaction of all fiscal requirements, including match and maintenance of effort. Furthermore, the DSU must have sufficient information about the financial resources available to the VR program in order to avoid the inadvertent and unnecessary reallotment of funds, or, most significantly, the return of funds to the U. S. Treasury -- actions that could occur if the DSU does not maintain control over the expenditure and allocation of VR funds. Finally, the VR program regulations at 34 CFR 361.23 and Section 121(c) of WIA, along with WIA implementing regulations at 20 CFR 662.300, require that a memorandum of understanding governing operations of the One-Stop service delivery system in a local area be developed and executed between the Local Workforce Investment Board and the One-Stop service delivery system partners. Because the DSU is solely responsible for its role as a partner in the one-stop system (34 CFR 361.13(c)(1)(v)), it must negotiate its own contracts with the other one-stop partners. This responsibility may not be delegated to another individual or agency, including the DSA (34 CFR 361.13(c)(2)). SUMMARY: The federal requirements governing the organization of the VR program provide considerable flexibility to the states in recognition of the wide variety and complex nature of the programs and services within their purview, while establishing a framework in which VR services are delivered through an autonomous and distinct unit. This framework enables the officials and personnel of the DSU to conduct those non-delegable functions critical to the administration and operation of the VR program. It is these persons who possess the knowledge and experience necessary to make decisions regarding the effective and efficient use of VR program resources to address the unique needs of individuals with disabilities as they engage in the pursuit of quality employment. CITATIONS: Rehabilitation Act of 1973, as amended, Section 101(a)(2) Vocational Rehabilitation Program Regulations, 34 CFR 361.13 INQUIRIES: Carol Dobak, Chief Vocational Rehabilitation Program Unit (202) 245-7325 Carol.Dobak at ed.gov Edward Anthony, Ph.D. Deputy Commissioner cc: Council of State Administrators of Vocational Rehabilitation National Council of State Agencies for the Blind National Disability Rights Network Public Comment #15 July 12 2012 Comments relative to public hearings MCB and MRS Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. MT. Morris, MI 48458 joeharcz at comcast.net To Several including RSA All: There are requirements for adequate notice and accessability of required public hearings relative to major revisions of VR State Plans. This was not done. There was no ?adequate notice? of public hearings on either the Michigan Commission for the Blind State Plan or that of Michigan Rehabilitation Services. In fact members of the MCB Board did not get timely notice. And members of the Michigan Rehab Council got worse. There were no conventional media notices in any newspaper or radio let alone the varieties of media in advance recommended here. In short both were shams. Dog and pony shows. Moreover, MOST of these meetings were held in facilities that did not meet even Americans with Disabilities Act or Section 504 basics for program access, and effective communications, thus continuing to violate the civil rights of consumers and advocates with disabilities; the very people both MRS and MCB are to serve with this federally funded sham of a program here! For the reasons mentioned above these public hearings are invalid upon their face. I protest them and urge RSA to withold all funding and not to approve either state plans until they actually follow this and, indeed all aspects of the Rehabilitation Act of 1973 as amended. (See this from: Technical Assistance Circular RSA-TAC-12-02 DATE: February 21, 2012) ?Public Hearings and Substantive Changes? As required by Section 101(a)(16)(A) of the Rehabilitation Act and 34 CFR 361.10(d) of the implementing regulations, prior to the adoption of any substantive policies or procedures (or any substantive amendment to such policies and procedures) governing the provision of VR or SE services under the State Plan or the supplement, the VR agency must conduct public meetings throughout the state, after giving adequate notice of the meetings, to provide the public, including individuals with disabilities, an opportunity to comment on the policies and procedures contained in the proposed FY 2013 State Plan. The VR agency also must actively consult with the director of the Client Assistance Program and, as appropriate, with Indian tribes, tribal organizations, and Native Hawaiian organizations, when adopting new policies or amending current policies. Substantive changes to VR and SE program service policies and procedures, as distinguished from those that are typically considered administrative in nature, are those that directly impact the nature and scope of the services provided to individuals with disabilities, or the manner in which individuals interact with the VR agency, particularly as it pertains to communication with the VR counselor or the delivery of VR services. Examples of substantive changes include, but are not limited to: ? any changes to policies or procedures that fundamentally alter the rights and responsibilities of VR consumers in the VR process; ? proposed organizational changes to the VR agency that will likely effect the manner in which services are delivered; ? any changes that affect the nature and scope of VR services provided; ? changes in formal or informal dispute procedures; ? the adoption or amendment of policies instituting an order of selection; and ? changes to the VR consumer financial participation policies. Examples of administrative changes that would not necessarily generate the need for public hearings include, but are not limited to: ? internal procedures that do not directly impact individuals receiving VR services, such as payment processing, or personnel procedures; ? changes to the case management system that only impact VR staff; ? administrative changes in the relationship with the designated state agency, such as indirect cost allocations, internal fiscal review procedures, or routine reporting requirements; ? changes to RSA?s routine reporting requirements; ? minor revisions to VR procedures or policies to fix production errors such as typos and grammatical mistakes; and ? changes to contract procedures that do not impact VR service delivery. Consultation with Stakeholders and Substantive Changes Section 101(a)(16)(B) states that VR agencies, ?shall take into account, in connection with matters of general policy arising in the administration of the plan, the views of? a variety of stakeholders of the VR and SE programs, including individuals and groups of individuals who receive VR services, as well as their representatives if appropriate; personnel from organizations that provide VR services; providers of VR services; the director of the Client Assistance Program; and the SRC. RSA considers changes in the general administration of the State Plan within the meaning of Section 101(a)(16)(B) to include, but are not limited to: ? any change in policies and procedures requiring the conduct of a public hearing in accordance with Section 101(a)(16)(A); ? any changes that necessitate amending the approved State Plan in accordance with the Rehabilitation Act, implementing regulations and RSA procedures; ? the development of new goals and priorities for the VR agency under the State Plan; ? the manner in which the order of selection is implemented; ? the inclusion of new or additional information in the State Plan as a result of the completion of the comprehensive statewide needs assessment in accordance with the requirements of 34 CFR 361.15; and ? changes in personnel or staffing described in the State Plan that may significantly impact the delivery of VR services. VR agencies may find public hearings to be an effective and efficient method of notifying stakeholders of such changes and obtaining their input, as required by Section 101(a)(16)(B). In circumstances in which there is uncertainty with respect to whether a change in the VR program is substantive and hence requires a public hearing or outreach to stakeholders, RSA strongly encourages VR agencies to err on the side of conducting public hearings and forums to maximize awareness of the VR program and promote transparency of the agency?s policies and procedures. Additionally, VR agencies should utilize as many avenues for disseminating information regarding changes to the VR program and to maximize participation by community stakeholders in public hearings. Whenever possible or appropriate, state agencies should exploit both traditional and non-traditional media to advertise up-coming public hearings and solicit input from the community. Websites, social media, phone trees, and other forms of raising awareness, apart from traditional media such as radio, newspapers, and television, should be employed to the maximum extent possible and appropriate, and in accordance with the requirements of the regulations governing public hearings found at 34 CFR 361.20. Sincerely, Paul Joseph Harcz, Jr. Cc: National Federation of the Blind Cc: ADAPT Cc: SILC Cc: MCB Commissioners Cc: MCB Cc: MRC and MRC Members Cc: Office of Civil rights (ED.) Cc: Michigan Protection and Advocacy Services (including CAP() Cc: several media outlets Public Comment #16 Gov. Snyder's executive order 2011 ?2 candelaria jelinski cande28j at me.com Hello Gov. Snyder's this is in regards to the Executive Order for the michigan commission for the blind. I would like to see the board stay intact and the commission for the blind stay the way it is ran now! My name is Candalaria Jelinski and my son & I both have retinitis pigmentosa and glaucoma, conditions that will not get better and someday we will both be completely blind ourselves , as this is a genetic condition that will affect my family's far far into the future. The commission has helped us both accept this transition from a life with sight to now a life living with blindness. We both are currently active clients of the Commission that are now pursuing higher education. And your executive order directly affects us and so many others , like our war vets returning home blind . , my son . my family and our future as contributing citizen's in our society. The only ones to know the true needs of blind people are the blind themselves . Thank you Sent from Candelaria & Aretha my guide dog Carla Miller Haynes LARA Michigan Commission for the Blind 201 N. Washington Square, 2nd Floor P.O. Box 30652 Lansing, MI 48909 Telephone: 517-373-2063 or Toll-Free 1-800-292-4200 Fax: 517-335-5140 www.michigan.gov/mcb -------------------------------------------------------------------------------- -------------- next part -------------- An HTML attachment was scrubbed... URL: -------------- next part -------------- A non-text attachment was scrubbed... Name: Amended Response of 7-20-12.doc Type: application/msword Size: 171008 bytes Desc: not available URL: From joeharcz at comcast.net Tue Jul 24 14:05:43 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Tue, 24 Jul 2012 10:05:43 -0400 Subject: [Vendorsmi] official board correspondence Message-ID: <0F72F67DB3194096AFDC87628736E7E6@YOUR7C60552B9E> July 24 2012 Official Board Correspondence MCB Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net (For today?s MCB meeting) To: MCB Commissioners and more Ladies and Gentlemen, Make no mistake about it the State Plan and EO 2012-10 is a mass misappropriation of federal taxpayer?s dollars in to the hands of a non-vocational rehabilitation entity, Licensing and Regulatory Affairs. It also misappropriates the voice and the rightful role of people who are blind and disabled created in Public Act 260 and vested in part with the Michigan Commission for the Blind Board. Again these actions take funds and authorities that are supposed to be used for the vocational rehabilitation and independent living of the blind and put them in to the hands of a government apparatchik with no knowledge or willingness to apply vocational rehabilitation programs in general to wwe, those who are blind after all. Now what is misappropriation? Well in plain language it is theft. What is being stolen? Well that is the $64 million. question. What is being stolen here is employment opportunity, rehabilitation, and the future of tens of thousands of blind Michiganders. The right of the newly blinded person to learn the skills of blindness including travel, Braille and the acquisition and use of assistive technology is being stolen. The right and the ability of young blind folks to transition from school to work and or higher education is being stolen. Oh, and current jobs are being stolen not only in the BEP program but elsewhere. Funny how Governor ?Jobs? Snyder is actively making these moves which will rob the meager jobs from blind folks right now, or very soon in the Business Enterprise Program alone. Oh, and then there is the issue of misappropriation of millions of dollars of federally funded assets in the BEP program to be accounted for. Oh, I guess they?ll just have a giant yard sale and send it all to Treasury. These are the so-called efficiencies that this EO and State Plan put in place. Oh, and yes we, the blind are being robbed of something else very fundamental in a constitutional democracy. We are being robbed of due process and simple justice. Do you hear that Mr. Zimmer, you an officer of the court are violating the constitutional rights of blind people and you dare to put that in writing, to codify this gross and moral injustice, as a final insult to us. The current generation of blind people will be forced to be charitable wards of the state and folks will cluck at those lazy blind people living on Social Security, food stamps and subsidized housing if they can get that in the first place. At our last, and I mean last Consumer Involvement Council meeting Jim More, who read the 200 plus pages of the Braille version of the State Plan said, ?It looks like we are going back to the fifties.? Yes ladies and gentlemen, we are going there and worse. Thank you Governor Snyder, Mr. Zimmer and all involved for this insidious, immoral, illegal and un-Constitutional assault upon each and every one of us and for the bleak future you are giving blind Michiganders. Thank you, Massa. As for the blind community who caves to these outrages or other wise capitulates without a fight I have nothing but pity,. But it sure isn?t changing what it means to be blind, unless of course one means changing things for the worse. As for the staff or some of the staff of the current corrupt and misguided MCB I will say this, ?Mark my words there will be pink slips come October 1 and thereafter.? But the way I see this thing going it is likely competent and proficient counselors, O and M instructors, and Vision Rehabilitation Teachers, along with support staff who will be going. Good union folks will be the ones hit. So, ladies and gentlemen it is back to the dark ages for us. Oh, you might get a job at sub-minimum wages at the Peckham?s, New Horizons, and Kandus. I almost forgot that part of our future. Last blind person out of Michigan please turn on the lights for those sighted bureaucrats. We wouldn?t want them to bump in to anything or not be able to find their way back to their offices without any raised character and Braille signs. Sincerely, Paul Joseph Harcz, Jr. . Cc: several -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 25 11:49:00 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 25 Jul 2012 07:49:00 -0400 Subject: [Vendorsmi] you all should make similar Message-ID: <6575120686364437913EBEC8DB838F92@YOUR7C60552B9E> July 26 ADA 504 Request Meeting Minutes Recording Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 joeharcz at comcast.net Re: July 24 MCB Minutes and Recordings To: Patrick D. Cannon, etc. (Via e-mail) Sir, I?m writing today to request everything in the Commissioner?s packet including the Fellows case they went in to closed session over with all background materials and the proposed minutes as soon as they are produced. Of, course as a blind person pursuant to the ADA (which turns 22 tomorrow) and Section 504 of the Rehabilitation Act which is uniformly violated in this state I request them in accessible format. To wit: send them as simple word documents and/or plain text enclosures to my e-mail address listed above. In addition I?m requesting the recording of said meeting ASAP. That may be sent to my mailing address as an mp3 file on a thumb drive. Note this relates to information that is supposed to be made routinely accessible to all people with disabilities in a timely manner again under the Rehabilitation Act. Note, you always say on all releases that all meetings are accessible and that includes documents, etc. So just send this information out directly and accessibly. Sincerely, Paul Joseph Harcz, Jr. Cc: M. Zimmer, LARA Cc: RSA Cc: MCB Commissioners Cc: NFB MI Cc: MPAS Cc: several Attorneys at Law -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 25 12:09:13 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 25 Jul 2012 08:09:13 -0400 Subject: [Vendorsmi] request warren payments Message-ID: <587C72BCD74F4F829FA61AD01BBE7333@YOUR7C60552B9E> July 25 2012 Request Warren Payments Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 810-516-5262 joeharcz at comcast.net Re: Request Warren Payments from MCB To: Patrick D. Cannon Director, Michigan Commission for the Blind (Via e-mail) Dear Mr. Cannon, I?m writing you today to request any and all records that would identify any payments from Michigan Commission for the Blind accounts for any legal services rendered by Assistant Attorney General Thomas Warren during the last fiscal year and to this date. In addition as a blind person I?m requesting them all in accessible format with no, and I repeat no surcharge for making them so, as the ADA specifically prohibits that (Americans with Disabilities Act, Title II, subparte, communications). To: wit make all requested documents Word documents and/or plain text enclosures to my e-mail address listed above. The public has the right to know how our Vocational Rehabilitation funds are being used. I expect timely response and timely delivery of these requested documents. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: Zimmer,LARA Cc: T. Warren, AG Cc: NFB MI Cc: RSA Cc: C. Haynes, MCB Cc: Mel Farmer, LARA Cc: several -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 25 15:08:16 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 25 Jul 2012 11:08:16 -0400 Subject: [Vendorsmi] request info for record Message-ID: <1B2BEDD7A1BF4947AECF6DBD8D397909@YOUR7C60552B9E> July 25 2012 Request Wertzel Zimmer Correspondences Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 810-516-5262 joeharcz at comcast.net Re: All correspondences between Zimmer Wertzel To: LARA FOIA Offices and more (See: ccs?.via email) All, I am writing today to request all and I mean all e-mail correspondences during the past three months between Michigan Deputy Director Michael Zimmer and ?Fred? Wertzel. These should include anything related to requests for accessible information related to: -Any Administrative Hearing in MAHS -Anything related to any Executive Order -Anything related to the Michigan commission for the Blind State Plan These documents should be part of the public record and made available to me, an advocate who is indeed blind with no obfuscations, stalling, or surcharges forthwith in accessible format pursuant to obligations of LARA and the State of Michigan under the Americans with Disabilities Act, Title II subpart e, communications and Section 504 of the Rehabilitation Act of 1973. To wit: send them all directly to my e-mail address listed above as either word documents and/or plain text enclosures or simply ?fw? the e-mail requests and documents as is to my e-mail adress. This isn?t rocket science. Mr. Zimmer has on hisState owned computer the requested information or darned well better have it on there. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: NFB MI Cc: M. Zimmer Cc: Patrick D. Cannon Cc: RSA Cc: Farmer and Haynes LARA Cc: several attorneys at law -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 25 15:45:17 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 25 Jul 2012 11:45:17 -0400 Subject: [Vendorsmi] request rsa zimmer information Message-ID: July 25 2012 Request Zimmer Correspondences with RSA Paul Joseph Harcz, Jr. 1365 E. Mt. Morris Rd. Mt. Morris, MI 48458 810-516-5162 joeharcz at comcast.net Re: All correspondences between RSA and Michael Zimmer LARA to and from (Several: via e-mail) To All (re: cc line), I am requesting any and all correspondences relative to the development of the Michigan Commission for the Blind ?State Plan? between Michigan Department of Licensing and Regulatory Affairs and any personnel of the United States Department of Education Rehabilitation Services Administration, This should cover the period of time between February 1 of this calendar year to the present date. It should include all technical assistance, and in fact simply should include any document period. As a person who is blind I submit that all these documents from both the State of Michigan and from RSA itself being entities covered by the Rehabilitation Act of 1973, and its civil rights component, Section 504 remit these documents immediately if not sooner in accessible format and without delay or surcharge (again I?m invoking the ?auxiliary aids and services provisions of Section 504 here). Said documents may simply be sent to my e-mail address listed above as either/or Word attachments or plain text enclosures or simply electronically ?cced? to my e-mail address. Again I?m invoking, as a person who is blind my rights to receive this information in accessible format and a timely manner pursuant to obligations of both the Federal Government (RSA) and the recipient of federal funds (LARA). Violations of this on behalf of RSA will result in a Bevin?s action. Violations of this by any personnel of the State of Michigan will result in other actions up to and including 42USC1983 actions against personnel including Mr. Zimmer himself. . Frankly it is about time the civil rights laws of this land were followed by recipients of federal funds. Sincerely, Paul Joseph Harcz, Jr. Cc: MCB Commissioners Cc: OCR, Ed. Cc: RSA Cc: OCIO RSA Cc: LARA, several Cc: several attorneys at law Cc: several media outlets -------------- next part -------------- An HTML attachment was scrubbed... URL: From joeharcz at comcast.net Wed Jul 25 17:44:57 2012 From: joeharcz at comcast.net (joe harcz Comcast) Date: Wed, 25 Jul 2012 13:44:57 -0400 Subject: [Vendorsmi] Fw: [nfbmi-talk] i want public info and nfbi info Message-ID: <4E30D2FC3BDA4A2886301575891FD4D7@YOUR7C60552B9E> ----- Original Message ----- From: "joe harcz Comcast" To: "Larry Posont MCB Comm." Cc: Sent: Wednesday, July 25, 2012 1:41 PM Subject: [nfbmi-talk] i want public info and nfbi info > July 25 2012 Request NFB Mi > > > > Paul Joseph Harcz, Jr > > Joeharcz at comcast.net > > > > Request Public Information Including all Related to NFB MI OMA Case > > > > To members of the Board of the National federation of the Blind of > Michigan > > Via E-mail > > > > All, > > > > The national Federation of the Blind of Michigan entered in to a lawsuit > against the Michigan commission for the blind Board for its violations of > the Michigan Open Meetings Act. It used about $5,000 of resources of the > NFB MI in these pursuits. It obtained an approximate number of 2,000 > emails in these regards. > > > > It then suspended suit. > > > > Now the e-mails in accessible form are in the hands of one Fred Wertzel > which document all kinds of violations of law and equity purchased once > again by NFB NMI. > > > > These are assets of the NFB MI and show undoubtedly all kinds of > violations. > > > > They need to be made available to me and to the public (on our web site or > on a file server or by other means). > > > > They are not the personal property of Fred Wertzel. They are public > records. > > > > I, for one want them. > > > > I am a dues paying member of the NFB MI. I am a blind member of the public > who has the right to these records. > > > > I want them. Period. > > > > Sincerely, > > > > Paul Joseph Harcz, Jr. > > > > Cc: Members Board of Directors, NFB MI > > Cc: Members NFB MI through Its List serve > > > > Cc: several attorneys at law > _______________________________________________ > nfbmi-talk mailing list > nfbmi-talk at nfbnet.org > http://nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org > To unsubscribe, change your list options or get your account info for > nfbmi-talk: > http://nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net