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[joe harcz Comcast]

Something Amiss in Michigan Part II
----- Original Message ----- 
From: joe harcz Comcast 
To: vincent.cheverine at ed.gov 
Sent: Friday, July 29, 2011 1:13 PM
Subject: Emailing: bm100702.htm


To: Vincent Cheverine, OCR, Cleveland Office
July 29, 2011

Dear Mr. Cheverine,


Here is some documentation of systemic violations of the ADA and 504 on a willful basis in the public domain by Patrick D. Cannon.

Oh, yes I and others informed him of signage issues at his own headquarters almost a decade ago and I have written documentation of that fact.

Moreover, as the former head of the United States Access Board he should know the compliance issues as indeed they set those standards. Again goes to "deliberate indifference".

Moreover, the ADA/504 is not complaint driven as Cannon always suggests, but rather under Tyler v. Manhattan to name just one cite the Title II entity must act affirmatively.

This is for background and just one component documenting my and other's systemic complaints against Mr. Cannon and the Michigan Commission for the blind.
Certainly it establishes clearly a pattern and practice of willful discrimination, unless, of course Mr. Cannon et al wish to claim gross incompetence as a defense.

Sincerely,

Paul Joseph Harcz, Jr.


Braille Monitor                                                 July 2010
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Something Amiss in Michigan
Part II
by Daniel B. Frye

>From the Editor: In this second part of our investigative story on the Michigan Commission for the Blind (MCB), we offer a brief update on events surrounding the Christine Boone issue featured in last month's report. We will also examine allegations of agency noncompliance with Americans with Disabilities Act (ADA) and Rehabilitation Act guidelines in the installation of Braille signs, use of inaccessible state computer systems, and failure to provide clients written materials in their preferred accessible format in a timely manner. Additionally we will review assertions that agency director, Pat Cannon, inappropriately exercises influence over the composition and operation of the agency’s governing board. We will alert readers to questionable business and fiscal practices at the Commission and survey some of the Business Enterprise Program (BEP) challenges faced by blind vendors in Michigan. This is what we know:

An Update on the Christine Boone Issue
Despite the fact that Christine Boone's appeal of her termination as director of the Michigan Commission for the Blind Training Center (MCBTC) is pending before the state's Civil Service Commission, with a first pre-arbitration and mediation date scheduled for July 9, 2010, Commission officials recently announced that Sherri Heibeck, a twenty-four-year employee of the MCB and most recently administrative services manager for the agency, would assume this role as of Monday, June 14. This appointment has attracted criticism from the National Federation of the Blind of Michigan since Heibeck's education and experience have been limited exclusively to matters of organizational business management and information technology. A June 12, 2010, article in the Kalamazoo Gazette highlights her limited background in the actual substance of blindness rehabilitation programming. The Monitor has also learned that Heibeck will continue to be based out of MCB headquarters in Lansing instead of being officially based in Kalamazoo, where the MCBTC is located. Heibeck's commuting time, which will be authorized as part of her work day, will have her at the center only about five hours a day, a significant absence for a leader who must be present to set the proper tone and expectation for students being trained to adjust to blindness. We can only infer that MCB management is confident in the decision to terminate Boone in view of its announcement that this vacancy has been filled. We are left to wonder if Heibeck's appointment can represent a positive development for the state's only adult rehabilitation training center for blind people when she does not possess any real history in working directly with blind consumers.

The ADA and Rehabilitation Act Compliance Issues
Some agency observers accuse Cannon and MCB management of lax adherence to the letter as well as the spirit of the ADA and Rehabilitation Act in not installing Braille signs throughout MCB facilities, adopting inaccessible computer systems limiting the ability of blind employees to function independently, and failure to provide timely access to public documents and individual consumer records in accessible formats. Each of these claims appears to have some merit. These lapses disadvantage blind Michigan residents, and they have been perpetrated by the ADA coordinator for the executive branch of state government, Pat Cannon.

Former MCBTC Director Christine Boone observed, "When I arrived, I learned that the center had recently undergone some remodeling in the name of ADA compliance, but whoever did it sold the state a bill of goods. Many aspects of the remodel were noncompliant. I found only homemade signage; I found no professionally manufactured accessible signage. Additionally, the reception area was not accessible to wheelchair users. Yet Pat Cannon sat on the governor's cabinet as the ADA coordinator for the state of Michigan." Boone reports that during her tenure these deficiencies at the MCBTC were remedied. We observed adequate signs during our visit, and the entryway to the center, while small, appears to be wheelchair accessible, if not completely compliant.

In addition to the ADA issues identified at the MCBTC, multiple complaints have been lodged with various state and federal authorities about the absence of ADA-compliant Braille and raised-letter signs in the Victor Building, the MCB headquarters in Lansing. Paul Joseph Harcz has registered most of these complaints, and he seems to possess a technical understanding of the standards that ADA regulations require. We have been unable to ascertain if any of Harcz's complaints or grievances have been formally responded to or adjudicated. While we found some doors in the Victor Building labeled, Harcz accurately observes that not all appropriate signs have been installed at the MCB headquarters. Since acquiring ADA-compliant signage is now a fairly standard practice, we are at a loss why the MCB would not already be a model of excellence in this regard decades after such regulations have been adopted.

When invited to comment on the signage issue, Cannon said that he had "just heard of a signage complaint this morning." He noted, "When you look at accessibility, signage is often most overlooked." He recalled a visit to a hotel in the shadow of the nation's Capitol, and he was appalled that inaccessible signs could exist at the end of the twentieth century. It seems likely that, if signage issues are brought to Cannon's attention, he will take measures to address this issue.

Harcz and several others have also complained about not receiving materials for public meetings and client records in accessible formats. At this writing we don’t know how these complaints have been resolved. We were given access to Braille and electronic materials at the March 2010 meetings we attended.

Reports surfaced during our investigation that the MCB has several inaccessible computer systems that blind agency staff must use to do their jobs. Specifically, Boone reported that the fiscal software was not entirely accessible to blind employees. She noted that a blind intern working at the MCBTC with the center's fiscal specialist was unable to work independently using this system. Other blind staff reported that the agency systems for personnel management and timekeeping were also inaccessible.

Cannon responded to the allegations about the compromised intern and the fiscal software by indicating that he was unfamiliar with the problem. He noted that during his tenure as chairman of the U.S. Access Board he had been instrumental in bringing the section 508 technology access guidelines to the fore, and he explained that he urged Michigan's Department of Information Technology to work toward these goals. Cannon reported that the state's Information Technology Department indicated a willingness to strive toward accessibility, but that they acknowledge continued deficiencies in some of the state's systems. Cannon did admit that problems exist with the personnel evaluation system and timekeeping programs, and he reported that steps have been taken and are ongoing to address these challenges.

Commission Influence 
Critics inside and outside the Federation accuse Cannon of exercising undue influence over the Commission board. They allege that Cannon has usurped the Commission's legislative responsibilities through personal manipulation and exertion of political influence. Distinguishing between a strong executive and an inappropriate power-grabbing leader is sometimes hard to do, so we will review several of the most striking examples of alleged abuse.

Objectors say that Cannon does not tolerate an independent, probing Commission board. They allege that he does not permit Commission members to exercise a policy-making role or to speak to agency staff members about particular matters. When invited to comment, Cannon said that the Commission board is authorized to conduct an annual evaluation and appraisal of the director's work. "One of the phrases often used is that the Commission can `direct the administrator but cannot administrate directly.'" Cannon said that during his administration the Commissioners have always discussed new agency policies. He added that, to avoid a top-down approach, one of the principles outlined in his Vision 2020 initiative is to involve the Commission board in policy-making activity. Cannon said that he recognizes that advocates were disappointed that they couldn't get the state legislature to give the Commission a stronger policy-making role in the state's enabling legislation, PA-260.

Clearly Cannon interprets the state's enabling legislation conservatively in the power that it grants to the Commission board. During the MCB board meeting on March 19, 2010, the National Federation of the Blind of Michigan submitted several strongly worded position papers for the members of the Commission board to consider. One analyzed the powers of the Commission board, and argued that the Commission--defined as the governing body and not just the agency--is "vested with the power to oversee comprehensively the activities, the budget, the director, and the staff of the organization known as the Michigan Commission for the Blind." To the Commission board's credit, in response to our Michigan affiliate's advocacy, the members of the MCB board have recently begun evaluating what powers they actually have in overseeing the agency.  In a May 3, 2010, meeting (now being challenged by our Michigan affiliate for being held in closed executive session), the MCB board apparently received counsel that they had the legal right to be more engaging with the agency's director. As a consequence, the MCB board has asked to revisit some administrative law judge decisions that it originally endorsed, at the director's recommendation, to see if they were in fact fair. While the Monitor was present in March, the Commission board appeared quite weak and reliant on the MCB director and staff for guidance and simple functioning (on occasion uncertain whether or not to subject items to a motion or other procedure), but in recent weeks the board appears to have found some measure of leadership resolve.

Cannon is charged with working to remove individual members of the Commission board with whom he has disagreed or whom he has found troublesome. Former Commissioners Mark Eagle and Don Bowman accuse Cannon of working to orchestrate their ouster from the MCB board. The former commissioners and Cannon offer different versions of each story, but the one consistent fact is that both of these commissioners appeared to be uncharacteristically activist members of the Commission board prior to their unconventional departures. Here is what we have been told by both sides of each disputed story:

Mark Eagle was one of the youngest members of the Michigan blind community ever to serve on the MCB board. He resigned in the spring of 2009 because of alleged ethical conflicts as articulated in an opinion from the State Ethics Board, relating to "pervasive" personal conflicts resulting from Mark Eagle's father’s frequent representation of blind vendors before the board. Mark says:

My resignation was not, in fact, voluntary. Pat and the Governor's office wanted me to be gone. To my knowledge none of my colleagues on the board ever expressed any concerns about ethical issues I might face. I believe Pat was the one behind all of this. He is the one who drafted the letter requesting an opinion from the Ethics Board. I believe I was too strong a voice for blind people on the board. I advocated on behalf of the grassroots blind community in Michigan. I objected, for instance, to receiving staff recommendations, including proposed voting directions, on various topics. I thought this was inappropriate since the adversely affected parties did not get an equal opportunity to make arguments to us. I objected to specific contracts that the agency proposed entering into, and Pat thought I crossed the line. I always recused myself whenever my father would represent a vendor before the board. I never did anything remotely unethical. As a candidate for the state legislature I was warned of consequences from my own political party, though, if I failed to do anything other than resign quietly.

Cannon disagrees with Eagle's characterization of events. He says:

The former commissioner was a capable young man named Mark Eagle. I always tried to play a mentoring role with regards to his hopes and dreams. I originally encouraged Mark to become a part of our Youth Leadership Forum, which served to help distinguish him. Before joining the MCB board, Mark was chair of the Consumer Involvement Council. The bottom line is that he resigned from the Commission board. He participated in activities that some of our commissioners saw as a conflict of interest. Whether or not it was a clear conflict is something to be pondered or debated; it was not clear cut. I said to people that I couldn't make the decision that his behavior was a conflict. I did point out instances to Mark where I did perceive there was a conflict. Almost without exception, Mark listened well and took steps to mitigate that perception. As these concerns continued to arise and I didn't want to be the determinative factor, we considered the role of the State Ethics Board. Mark was granted a hearing where he could present his information. Ultimately they issued an advisory opinion suggesting that his efforts to mitigate his personal conflicts could not be overcome. He ultimately chose to resign.

Don Bowman, a blind retired GM employee, served on the MCB board from 2000 to 2002. He resigned his position several months prematurely. Bowman reports that he determined to seek the chairmanship of the MCB board on the death of Earl Stenstrah, and he believes this prospect disturbed Cannon. "He and his staff did not want me to exercise conservative leadership over the board. I don't think they were being dishonest, but they were promoting themselves more as an agency than as an entity committed to helping blind people. They were spending too much money on travel, dinners, luncheons, and sighted assistants for blind staff members. I was going to effect change by voting on policy that would not approve things that were unreasonable." Bowman believes that, after advocating that Cannon be replaced, he was not reappointed because of Cannon's political influence. According to Bowman, Cannon asked him to resign several meetings prematurely so that the agency would not have to conduct two distinct orientations. He reports that he told Cannon he would be happy to relinquish his post if Cannon would write Bowman’s resignation letter. Bowman says this is what happened. Cannon does not concede that he personally drafted Bowman's letter of resignation.

While we cannot report with absolute certainty on these facts, it seems clear that in at least these instances Cannon has exercised some influence in ridding the MCB board of certain commissioners. Readers will have to determine for themselves what to believe.

Business and Fiscal Irregularities
In the course of our investigation, we discovered several fiscal irregularities at the MCB that warrant brief attention. Sources familiar with Opportunities Unlimited for the Blind (OUB), the entity that runs Michigan's camp for blind youth at Camp Tuhsmeheta, report concerns about the way in which Cannon and MCB management manipulate matching federal dollars through the cash-match process. Basically this is a partnership with several entities that uses local, state, and nonfederal resources to draw down matching federal rehabilitation dollars. The concern is that Cannon may use his discretion to give some of the matching federal funds back to the entities that worked with his agency on terms favorable to the Commission. Cannon could not say whether the MCB ever used its leverage to compel OUB to pay the agency for services the commission theoretically provided through the cash-match process in exchange for the Commission's ultimate support of the camping program. Many believe, however, that Cannon and the MCB use the cash-match process to reward its friends and punish its enemies.

George Wurtzel, a former blind contractor with the MCB, reported that Cannon saw to it that Wurtzel’s livelihood was largely destroyed in 2004, after over five years of providing satisfactory services to the agency. According to Wurtzel, he contracted with the Commission to warehouse, transport, and set up vending equipment for the state's Randolph-Sheppard program. He says that his services were professional and competitive. Because George’s brother, Fred Wurtzel, was the former manager of the Commission’s Business Enterprise Program, special arrangements were made to guarantee that his contracts were fairly awarded, leaving Fred Wurtzel free of any conflict. At some stage, however, Cannon apparently objected to this contract and directed that it not be renewed. Wurtzel alleges that nobody ever complained about his performance, and he says that the state paid more for the services he had provided after Cannon terminated his contract. Cannon declined to comment in detail on Wurtzel's allegations, saying only that the facts as presented were not entirely accurate. In view of these conflicting data, we are able to conclude only that Cannon may have used his influence to terminate the employment opportunities of a blind contractor, resulting in the purchase of services at costs greater than those that the blind contractor offered.

Vending Issues
Considerable turmoil in the Randolph-Sheppard Business Enterprise Program (BEP) is brewing under Cannon's leadership at the MCB. In general Michigan blind vendors allege in multiple cases on appeal that the Commission, the certified state licensing agency, has abdicated its responsibility to provide BEP participants the opportunity for active participation in the administration of the program and basic due process rights. The crisis in this program reached a fever pitch when, on Saturday, March 20, 2010, the MCB board, agency staff, representatives from the state's Committee of Elected Operators, and delegates from the two major consumer organizations of the blind gathered at MCB headquarters to air grievances and discuss solutions to the growing number of BEP issues. As of this writing the Michigan BEP program faces additional change with the promotion of James Hull, former assistant BEP manager, to the top spot for this program, following Constance Zanger's relocation to administrative services manager, a position made available with Heibeck's assumption of duties at the MCBTC.

Although we researched a number of individual vendor cases, we will limit our consideration in this report to broader themes brought to light through these challenges. This survey approach should not minimize the often compelling and distressing circumstances of the individual cases currently being argued in the state. Some blind vendors have been summarily removed from their locations, forced to modify their standards of living, and occasionally required to file bankruptcy or take other extreme measures because of adverse action that the MCB has taken. Two of the vendors subject to agency discipline have been presidents of our Michigan affiliate's blind merchants division. Cannon and the agency's BEP management are accused of not thoroughly advocating for the vendors’ federally guaranteed priority by acquiescing to the presence of competition in federal and state facilities and adopting a lenient posture toward the definition and presence of catering services that threaten vendor opportunities in their locations. In one notable case a sighted temporary BEP operator was kept in the Hall of Justice location as a result of pressure from building tenants and a hostile letter from a member of the Michigan Supreme Court urging that the MCB not replace this operator with a qualified blind vendor. Fortunately this issue has recently been resolved with the agency's agreement to place Roxanna Mann, a blind temporary operator, in this facility, but this came about only after considerable pressure from blind vendors and consumers. 

Further, the agency is accused of unfairly suspending the licenses of blind vendors and having them immediately removed from their vending locations without adequate opportunity for hearings. Operators allege that the BEP management has created an unequal playing field by attaching a BEP management comment to the ALJ (administrative law judge) decision for the MCB board to consider and by canceling the practice of providing hearing transcripts for arbitrations and other appeals, harming vendors already displaced from their source of income. Blind vendors also say that a disproportionate number of cases in the last several years have been assigned to a hostile administrative law judge, Robert Meade, who regularly fails to address the legal merits of the cases presented for his consideration. While this is by no means an exhaustive list of issues facing blind vendors in Michigan, it is a fair summary of the problems that exist within the program. 

Cannon argues that the MCB has strongly advocated for preservation of the priority for blind vendors and has specifically worked to craft a catering policy that will benefit BEP operators. He asserts that the State Office of Administrative Hearings and Rules has an arbitrary method for assigning judges without the input of state agencies, and he discounts the assertion that one judge has primarily managed this caseload. But the Monitor has counted at least eight cases in the last few years that have been heard by Meade, and we find it inconceivable that this count is merely the product of coincidence.

We are moderately comforted, however, by the prospect that a newly empowered MCB board may decide to revisit some of the vendor decisions that they previously endorsed at the agency's urging. If this occurs, the individual disadvantage visited on several blind operators may be fairly addressed. We can hope that the consumer advocacy that has pressed the MCB board into a new posture of resolve will benefit blind vendors in Michigan. Only time will tell.

Conclusion
Something clearly is amiss at the Michigan Commission for the Blind. The Boone termination alone is cause for serious concern. But the violation of ADA standards, Cannon's relatively heavy-handed management of the MCB board, a suspicion of fiscal irregularities used to intimidate or retaliate against blind people and small entities that serve the blind community, and grave concerns about the Randolph-Sheppard Program all suggest that problems are widespread in this separate rehabilitation agency for the blind. In an era when separate services for blind consumers are jeopardized, we are particularly alarmed to see that an ideally structured agency would find itself in the middle of so much controversy. If this series of articles does nothing else, it should call blind consumers to action in vigilantly watching and working with their rehabilitation agencies across the country to ensure that they represent the interests of our constituency and reflect the values that we determine are right. Let us not allow what appears to be amiss in Michigan to go unheeded there or anywhere else across the country.


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