Braille Monitor                                                 October 2011

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Continuing Conflict and Strife at the Michigan Commission for the Blind

by Gary Wunder

Shown here is the front of the training center and its sign which shows the American flag and the words Michigan Commission for the Blind Training CenterIn the roll call of states in 1978, Allen Harris, reporting as the president of the National Federation of the Blind of Michigan, proudly announced the passage of legislation establishing the Michigan Commission for the Blind (MCB). The convention was excited; people from Michigan were elated. We had long known that the best services for blind people are most likely to be provided by agencies run by a supervising board appointed by the governor with the input of the blind, who can go directly to the legislature and the governor to make their case for the programs they need.

In Michigan the legislation that passed wasn't everything the affiliate had hoped it would be. The commission was not a free-standing agency but a bureau. Employees, including the agency's director, would still be a part of Michigan’s merit system. Unarguably positive, however, there would be a five-member commission board that would supervise and evaluate the director and make policy for the agency. In a time when many agencies for the blind were being consolidated into larger governmental bodies and losing their ability to present their budgets to the general assemblies of their states and finding they could no longer speak directly with the governor and legislature, Michigan's progress was important for the blind of Michigan and a reason for the blind of America to cheer.

One fear of the Michigan general assembly and governor was that passing the new commission bill would turn the agency upside down. Promises by the act's proponents for a smooth transition, jobs for workers in the agency who still wanted them, and as little disruption to service as possible meant that the commission came into being and functioned much like its predecessor. The commission board perhaps for too long continued to function as an advisory body. The agenda was still set by the agency; things it wanted placed before the new commission board came to its attention while those the agency chose to handle itself did not.

Much has changed in the thirty-plus years since Michigan got a commission. The Rehabilitation Act of 1973 was amended in 1998. Consumer choice and empowerment and consumer-directed programs have become a part of our everyday language and expectation. The federal Rehabilitation Act mandates a rehabilitation council in every state. For Michigan this council is the Michigan Commission for the Blind. The role of the rehabilitation council as defined in the Rehabilitation Act goes beyond communicating the programs of the agency to its patrons and acting in an advisory capacity as former state councils and advisory committees once did. State councils are to be partners in determining what programs their agencies conduct, evaluating the success of those programs, and actively soliciting, reporting on, and trying to implement consumer feedback.

The extent to which these councils function as true partners varies. Some appointed members are so flattered at sitting at the head table and rubbing elbows with higher-ups in the agency that they are content to assent and pass on everything the agency proposes. They take no assignments and gratefully agree to pass on any work between meetings to agency staff. Some who are more active soon have to decide how much of their time outside agency meetings they are willing to devote to finding out what consumers want and learning enough about the law to determine which changes are possible and which are not. Those who come with an agenda and the intention of bringing about real change soon learn that their zeal must be tempered by an appreciation for the people who have made their careers the helping of blind people and by how long it takes to develop a consensus. The terms of effective advocates are often characterized more by constructive change than by drama. The challenge is to ensure that one doesn't win a public battle while in so doing making so many enemies among those who will implement the change that the war is lost.

The personality of the agency director, the strength of the agency’s traditions, the vitality of the consumer organizations, and the way the state rehabilitation council is composed and views its role all contribute to how involved consumers are in shaping agency policy. A director who sees his governing board as an asset and a board that believes its members are partners in carrying out the agency's mission find their relationship rewarding and productive. When the director regards his council or governing board as removed from the real work with the agency and considers board meetings a burdensome reality he or she must tolerate in working for a social service agency, the relationship is poor. Meetings are not events in which constructive dialogue and sound public policy are demonstrated. When the council or commission is constantly at odds with the agency administration, the agenda is a battleground where the administration fights for time to be used in reporting and the governing body or council fights for policy evaluation and change. Meetings are endured rather than enjoyed, and the positive consumer-driven process intended by the drafters of the Rehabilitation Act and its amendments is thwarted.

In June and July of 2010 the Braille Monitor published articles about the Michigan Commission for the Blind and serious conflicts between consumers of the state, the commissioners of the Michigan Commission for the Blind, and the director of the commission, Patrick Cannon. Because that coverage was so detailed, this article will summarize only those items relevant to understanding the activities which have occurred since.

Christine BooneIn February of 2010 Cannon fired Christine Boone, the director of the residential rehabilitation training center, alleging she had started a marksmanship class without his knowledge or consent and that she had violated state law by allowing firearms to be purchased and brought onto state property. Cannon initially said he had learned of the class at the 2009 convention of the National Federation of the Blind of Michigan. Later he testified that he remembered having discussions about the class with Boone, that those discussions involved looking into instruction offsite, and that never had he given his approval for the class. Allowing blind people to do things normally considered impossible for the blind is a well-established practice of rehabilitation centers in trying to reshape the way blind students think and feel about being blind. Rock climbing, skiing, and other challenge activities are well-accepted strategies that are key to changing a student's perception of what it means to be blind and are found in some of the best training centers in the country. Sky diving was even conducted at the Michigan training center in recognition of the importance of such challenge activities.

With the help of the National Federation of the Blind, Christine Boone appealed her dismissal. A four-day hearing was held before an arbitrator in January of 2011. In arguments supporting Boone's dismissal for violation of civil service regulations, the state alleged that she might have discussed the possibility of training with her supervisor, but never had she gotten his approval to proceed with it. To the extent that he understood such training was being discussed, it was Cannon's understanding that the class would be taught offsite at a local firing range. The state also alleged that the guns used in the marksmanship class were firearms as determined by state civil service regulations and, as such, were not allowed on state property.

In presenting her side, Boone argued that she had told Cannon about the students’ desire to do target practice as part of the center's adventure activities, that he was supportive and told her to research how the class might be conducted, and that he emphasized the need for safety. Boone assigned one of her assistant directors, Karen Cornell, who was very involved in marksmanship as a recreational activity, to research how and where the class could be conducted. While a target practice facility was located in the area, it seemed safer and less disruptive to hold marksmanship training on the center’s property. Given that the center has more than twenty acres and is making an effort to use that land fully, Cornell suggested this solution as an alternative. She next went to the state police and then to the Kalamazoo Public Safety Department in the Kalamazoo Police Department to determine whether the spring-loaded guns she was considering were firearms. The police concluded that they were not; the guns were purchased with a state purchasing card and without a background check. The purchase rang up as general merchandise. State purchasing paid the bill, questioned the purchase several months later, and was answered by Assistant Director Bruce Schulz, who explained the role of adventure activities at the training center as the reason for the purchase.

Classes were held, and the success of the training was indeed a topic covered in Boone’s report at the National Federation of the Blind of Michigan convention. Boone testified that Cannon's preference for oral rather than written communication explained the lack of written approval and that, indeed, no written approval for the sky-diving program conducted by the center had been granted, though clearly the program had been authorized, supported, and even publicized by the agency. She argued that the need for Cannon's approval was questionable given her job description and the discretion given to her as a high-level manager. Boone admitted that she had not initially been aware of a civil service regulation when she authorized the commencement of the marksmanship class but quoted the rule which clearly defines a firearm as "A weapon from which a dangerous projectile may be expelled by explosive, gas, or air." She presented evidence that the guns purchased by the Center (and approved by Department of Energy, Labor, and Economic Growth purchasing officials) did not use any of these three methods to expel the pellets. The guns use a spring cylinder, and the owner's manual warns that the markings on these units say, "Warning: Do not brandish or display this product in public--it may confuse people and may be a crime. Police and others may think it is a firearm. Do not change the coloration and markings to make it look like a firearm." The civil service rule used as the basis for Boone's firing also spells out numerous exceptions, including specific approval by an appointing authority, which can be the CEO of an autonomous entity that is headed by a board or commission. She further argued that Cannon had no concern about the legality of the pellet guns on state property because she was ordered to bring them to his office for his personal inspection when he raised the issue of not knowing about the training. Finally she argued that Cannon's understanding of where the training would take place was of no consequence since the regulations do not distinguish between firearms on state property or in the possession of employees while on state time.

Prior to the Commission meeting on June 17, 2011, an arbitrator from the Michigan Department of Energy, Labor, and Economic Growth, who is also a member of the American Arbitration Association, ordered Boone's reinstatement. In the thirty-six page decision, the arbitrator found that there was agreement that the marksmanship class was well received by the students and staff of the training center; that no one believed they were violating either the spirit or the letter of the law or the regulations of the state of Michigan; that personnel of the state of Michigan charged with interpreting the regulation had difficulty in determining whether the BB guns were firearms; and that the regulations were too ambiguous to justify Boone’s termination. In its summation the finding reads:

The Appellant makes a cogent argument that Ms. Boone's termination for her alleged violation of the work rule and regulation at issue violates her due process rights because the policies, as they are applied to the specific facts and circumstances in this case, were impermissibly vague. The regulation and work rule relied upon for the termination of Ms. Boone's employment are so complicated that it took both Jason Nairn and Patty Gamin hours of research to determine whether the rule was violated. Mr. Cannon wasn't sure and relied on their opinions. Automatically terminating the employment of an employee for violation of a rule where the application of such rule is not clear and readily understandable violates the concept of just cause. Due process requires that noncompliance with a rule can only be relied upon in administering discipline if the rule is clear and accessible enough to be readily relied upon by the subject of the discipline.

After careful review of all the facts and circumstances, it is clear that Ms. Boone performed her work in good faith and with reasonable diligence. It has not been shown that the Appellant purposely violated any of the rules or regulations with which she is charged. There is not just cause for discipline or discharge in this matter.

DECISION

For all the above stated reasons, the grievance is granted. Ms. Boone shall be reinstated to her former employment and made whole as to lost wages and benefits.

There you have the concluding remarks of the arbitrator and the order to reinstate Boone. Director Cannon announced this decision to the staff in a memorandum entitled "Wishing Sherri Well," Sherri Heibeck being the person appointed by director Cannon to run the training center following Christine Boone's firing. In the same way Director Cannon announced Boone's return to the board of the Michigan Commission for the Blind under the agenda item entitled "Training Center Report," which he began by introducing Sherri Heibeck and complimenting her on her many years of service to the agency and her more recent work with the training center. He told the commission board and those in the audience that Sherri had to leave work with the blind because the agency had been ordered to reinstate Christine Boone. The clear implication was that a loyal and dedicated employee was being forced out by Boone, but at no time that day did anyone mention the facts on which the arbitrator ruled, the injustice to Christine Boone, or the anxiety of training center staff that resulted from the firing, absence, and return after eighteen months of their former boss.

Much to Heibeck’s credit is her own handling of Boone's return as the director of the training center. In remarks to the training center’s staff on learning she would be leaving the director's position, Heibeck assured them that their good work would not go unnoticed, that they should not be anxious about Christine Boone's return since most of them already knew and had worked for her, and that quality programs would continue and expand at the training center. The same cordiality was shown when she met with Boone prior to her return.

The Christine Boone case is not the only one in which the Michigan Commission has been involved in the last year. Dave Robinson, also a member of the National Federation of the Blind, was dismissed after ten years with the agency. Although highly rated by the Michigan vendors he served as a promotional agent (in other states this position is known as a vending supervisor), his dismissal was based on being behind on paperwork, a problem shared by many promotional agents in Michigan. Robinson notes that he was the agent for more vendors than any other, being responsible for serving thirty-one facilities. The promotional agent with the second-highest workload has twenty-four.

Robinson appealed his dismissal, and an arbitrator ruled in his favor. The arbitrator found his termination was based on his membership in the National Federation of the Blind. Robinson was on paid leave from February to August of 2011. The state appealed the decision of the administrative law judge and won, so Robinson says he now plans to take the matter to court.

Robinson says his firing had less to do with paperwork than with a conflict with Director Cannon. Michigan law spells out that blind vendors have preference on state property, including catering for special events. When state workers began routinely to bring in food from the outside without giving the onsite vendor an opportunity to compete for the business, Robinson says he insisted the vendors had the right to complain and defended them. He says that, when Director Cannon was contacted by the heads of offices that had hired others to do the catering, he did not like the conflict, and he suggested Robinson stop raising the catering issue.

The Monitor has learned that one other issue involving blind vendor complaints about outside catering cost Hazell Brooks her facility and income. In her career Brooks had filed and won four grievances against the agency prior to the catering dispute. We are told that, after complaining about a catering event for which she was not allowed to bid to officials in the building in which she worked, she was visited by Cannon and a staff member of the vending program. Contrary to state and federal rules, Hazell was removed immediately. She fought the removal and since has been awarded a better facility--the claim is that the location she has now is the second best in the state. The commission board has also ordered the agency to negotiate with her to provide compensation for the lost income she sustained. By our count this makes her five for five, a great day for a hitter in baseball and a quarterback's dream in football.

All told, it appears the state of Michigan has had to pay more than three quarters of a million dollars in grievances and lawsuits from customers of the business enterprise program, grievances by consumers and employees, and lost wages and benefits over the last eighteen months. One must ask why? A partial answer is the failure of agency director Cannon to resolve internal conflicts within the MCB, leaving it to hearing officers, administrative law judges, and arbitrators to settle matters that have arisen from agency disputes. The experience of one former blind vendor illustrates this problem.

Terry Eagle worked as a vendor in the Michigan program for ten years.  Then successful surgery gave him substantial vision. So significant was the increase that he withdrew from the Business Enterprise Program and made his living for fifteen years in other pursuits. Eventually his vision deteriorated to such a degree that, when he again became legally blind, he applied to reenter the program. Vending staff at the commission said he could not compete for facilities until he took vendor training, with no allowance for his previous training and experience. He holds a BA in hospitality management, which includes certification in hotel and restaurant management. Training in the Michigan program costs $2,900 a week, lasts for eight weeks, and is then followed by nine weeks of on-the-job (OJT) training. The rehabilitation counseling unit of the MCB said it had no intention of paying for someone with Eagle's training and experience to go back for such instruction. Eagle said he would retake the vending classes, if required, but agrees that he does not need such training. According to Eagle, so too did John McEntee, at the time the trainer for the Business Enterprise Program, who said he could give Eagle any refresher training he might need in two weeks. Management declined the offer and recommendation. Clearly Eagle was caught in an internal agency dispute that should have been resolved by Director Cannon or his designee, but the case has been taken to federal court. The court has decided it does not have jurisdiction, and Eagle promises to take it up in state court. The result has already cost the state money to defend, and the likelihood is that, if properly filed as Eagle promises, will result in another settlement against the commission. It is one thing when an agency for the blind and a consumer disagree and the assistance of a third party is required to resolve the impasse; it is quite another when disagreements within the agency require the consumer to take action outside the agency to receive service. Eagle says that, to be fair, he was given one other option for entering the program: paying for the training and OJT out of pocket. Conservatively this would have cost at least $30,000.

As Fred Wurtzel, the former president of the National Federation of the Blind of Michigan and the former head of the commission's Business Enterprise Program, says: “Most of the time when we are involved in an appeal, we win, but statistics don't explain how it feels to be the victim of these tactics. It is hard enough to face discrimination and misunderstanding based on blindness, but to face the mistreatment by our state agency when all that is wanted is a livable income and the respect of the community is almost impossibly difficult and stressful. BEP operators have been seriously harassed after the board or an ALJ have ordered their return. The object lesson is that, even though you may eventually get your job back, Pat Cannon can disrupt your life, take away your income, tarnish your reputation, and reduce your influence with others. One need only remember the removal of Mark Eagle, a twenty-two-year-old who was removed from the commission board based on charges of ethical conflict because his father was involved in helping other vendors with their grievances. This is a totally inappropriate way to manage a public agency. Only people like us, Federationists whom Pat cannot affect, are in a position to fight back effectively for blind people."

To the commission's credit, a real attempt to make the proceedings of the board available to the public was evidenced by the work that went into broadcasting the June 17 meeting on the Internet, making it available by telephone, and accepting comments from people not in the room, whether they wished to respond orally or using email. Commission staff went into great detail about how to listen and participate in the meeting, and it was clear that the effort represented a good deal of time to research and implement. Participation from around the state was evident as offices of the commission and consumers in their homes heard and spoke to the board.

Within days of the meeting, members of the commission board and staff were surprised to learn that, in addition to the audio, the session had been videotaped. The failure to mention this when the recording and live audio coverage had played such a prominent part in the meeting was not well received. Just as participants had the right to know that what they said was being recorded and broadcast, those in the room had the right to know that they were being photographed. Many who were disconcerted by the videotaping said it reminded them of the pictures taken at demonstrations in the sixties and used as a reason to create FBI files on patriotic citizens who chose to express their concern through peaceful protests. An apology has been issued by Steve Arwood, who heads the larger agency which houses the MCB.

The tension between Director Cannon and the commission was obvious both before and during the meeting. According to the commission's current bylaws, the board agenda is determined by the chairman and the director, and thirteen items recommended for consideration from the board were not included. An agenda item involving a forty-five minute presentation from members of the National Federation of the Blind of Michigan that had not been covered in the previous meeting of the board was reduced to twelve minutes without apology or explanation.

Since the meeting the chairman of the commission, Jo Ann Pilarski, has resigned. This means that the five-member commission board is now functioning without a chairman, and two of its five positions are vacant. By the time this issue goes to press, the next quarterly meeting of the commission board will have occurred. From time to time there is talk of combining the MCB with the state's other rehabilitation agency. Whether this is an attempt to bring the blind to heel or represents the recognition of the commission's many blunders and their cost to the state is debatable. What is beyond debate is that Michigan Federationists believe that Pat Cannon is a bully who has very little professional knowledge and lacks a real understanding of the rehabilitation process, the rehabilitation law, and the art of personnel management. He continues to usurp the authority and role of the commission board and muffles and blunts all serious consumer involvement. While most feel compelled by their most personal values to refrain from judgment, to respect the humanity of their adversary, and to separate the sinner and the sin, they truly believe that only after Director Cannon is replaced can the process of building trust and a positive process for serving blind people begin.


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