37, No. 6
Barbara Pierce, Editor
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The National Federation of the Blind
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NATIONAL FEDERATION OF
THE BLIND IS NOT
SPEAKING FOR THE BLIND--IT IS THE BLIND SPEAKING FOR THEMSELVES
Vol. 37, No. 6 June 1994
A STUDY IN LAVISH LIVING AND LIMOUSINES
by Kenneth Jernigan
FOR THE NATIONAL FEDERATION OF THE BLIND AND
by James Gashel
BRAILLE ON THE MONEY?
by Marc Maurer
FOR BLIND WORKERS: THE LEGISLATIVE STRUGGLE
by Barbara Pierce
OF THE NATIONAL FEDERATION OF THE BLIND
by James Gashel
WORKSHOP WORKER SPEAKS
by Colleen Haslam
OF A LABOR LAWYER
by Donald Elisburg
BY NATIONAL INDUSTRIES FOR THE BLIND
by Patricia M. Beattie
FEDERATIONIST REACHES OUT
STAFF PROFILES: DONOVAN COOPER, MANAGEMENT ANALYST, R.D.I.
Copyright 1994 National Federation of the Blind[LEAD PHOTOS: (1) Mr. Maurer holds the telephone to his ear with one hand and a walkie- talkie and his cane with the other hand. (2) Mr. Maurer bounces off the side of the Oyngo Boyngo, with his arms raised in the air. CAPTIONS: (1) When we are in the process of preparing the June issue of the Braille Monitor, we always think of the National Convention. Right is a picture of President Marc Maurer hard at work during the 1993 National Convention. (2) Left, he is pictured enjoying himself in an Oyngo Boyngo which was provided to the Convention child care to use during the Convention. Everyone who had a chance to try this enclosed trampoline found it exhilarating fun.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[PHOTO: Dr. Jernigan reads from the podium at National Convention. CAPTION: Kenneth Jernigan] [CAPTION/PHOTO: Veterans of the organized blind movement will view this picture with nostalgia. It was taken in 1969 and shows from left to right Rienzi Alagiyawanna, who succeeded Dr. Jacobus tenBroek as President of the International Federation of the Blind; Dr. Isabelle Grant, who was instrumental in organizing the blind of many countries; and Bob Acosta. In the background is Jerry Drake, one of the leaders of the National Federation of the Blind of California during that period.]
ROBERT ACOSTA: A STUDY IN LAVISH LIVING AND LIMOUSINES
by Kenneth Jernigan
In mid-April of this year, Complaint number BC102521 was filed in the Superior Court of Los Angeles County. Its caption was "California Council of the Blind versus Robert Acosta." The circumstances leading up to this event are labyrinthine in nature and have ramifications far beyond the borders of the state.
In 1977 Acosta became president of the California affiliate of the National Federation of the Blind, and in 1978 he was expelled from the Federation and found himself the center of a lawsuit, which dragged on for several years. Two of the charges against him were that he had put his wife on the state affiliate's payroll without the knowledge or consent of the board and that he had bought her an expensive clock with organization funds.
Shortly after the conclusion of the lawsuit, early in 1983, Acosta became president of the American Council of the Blind's California affiliate and continued in that position until the fall of 1992, at which time he did not run for another term, being succeeded by John Lopez. By the time of his departure from the California presidency, he had achieved a high profile at the national level in American Council of the Blind (ACB) politics and affairs. He was the organization's second vice president and would clearly be a strong contender for its presidency at the end of the term of LeRoy Saunders. He was also president of ALL (the Affiliated Leadership League of and for the Blind), of which ACB is a principal constituent. It was widely believed that he had put a good deal of California money into both ALL and the American Council of the Blind and that his departure from the California presidency was meant to be a prelude to expanded horizons at the national level. Acosta could reasonably expect that he would not be giving anything up by relinquishing his California presidency since he was filling the position with a chosen lieutenant, John Lopez--but if this was his thinking, it would take only a few months to show its disastrous fallacy. As Lopez was to say before a roomful of people in the fall of 1993: "I guess Mr. Acosta doesn't like for me to be an honest man--but I will not change."
Perhaps the best way to show where things stood when Lopez made his statement is to give pertinent parts of the recording of a board meeting of the California Council of the Blind held at the Crown Plaza Holiday Inn in Los Angeles, on Thursday evening, November 4, 1993. The tape begins with a lengthy discussion concerning several sets of minutes. Then, John Lopez, the President of the California Council of the Blind, says:
Mrs. Parker is going to read the inventory to us--what the Council property is, what we have, and what maybe belongs to us but we don't have it with us and we hope to regain it or bring it back.
Let me just briefly say a comment on the public relations. There was a discussion [in the previous budget report] about the reader for Mr. Urena. [This is Sid Urena, the California Council of the Blind lobbyist, the brother of Manuel Urena, who works for the California Department of Rehabilitation.] The $15,000 are very justified. If you remember, there was a discussion about the reader for Mr. Urena, our capital representative. There was quite a discussion on that. He discovered that if his wife was not allowed to read to him, it would be very expensive. Secretaries would be charging over $10 an hour, and they would only work 8 hours a day, blah, blah--I don't want to go into that. But the fact is that his wife reads to him now. If he needs her at 10:00 at night, she's there; 3:00 in the morning, she's there; and she gets paid only very little. [applause] She is not getting paid $10 an hour. She's getting paid $250 a month, and that is nothing.
After these comments the inventory is read:
6 wooden desks; 5 credenzas; 2 typewriters; 3 computers; 2 laptop computers; 4 monitors; 2 laser printers, and 1 Star printer with printer stands; 7 filing cabinets; 1 Braille printer; 1 FAX machine with stand; 1 tape duplicator with stand; 1 postage machine with stand; 1 conference table with 6 chairs; 2 tables; 1 glass display for a CCB store; 5 storage cabinets; 13 chairs; 1 couch; 1 Franklin Dictionary Language Master; 1 miscellaneous plant [laughter]; 1 water cooler; 1 small refrigerator; 1 microwave; 1 computer unit.
Mr. Lopez: If my memory serves me correctly, I believe there are two items that are not in the office which we're trying to retrieve, and that's the computer that now is under the--in Ms. Pat Urena's home [Pat Urena is the wife of Manuel Urena], and maybe we will be. . .
[Mr. Lopez is interrupted by a board member.] Mr. President, I think that's something that the membership should know. Wouldn't every member in here like to have a laptop computer that belongs to the CCB for their use? [applause] I don't have a question that it's justified being there, but I would like to know why Ms. Urena has a laptop computer that belongs to the CCB. Also, where's the other one?
John Lopez: Okay, I will give her the opportunity to explain that to us, but at the moment we're going to proceed, and we will. . .
[Several voices interrupt with "She's right here; let her tell you."]
John Lopez: Okay, does the board approve of her taking the time of the agenda now to answer that question? [Shouts of "yes!"] Okay, no objections to that. Okay, Pat, go ahead.
Pat Urena: After years of providing services to the CCB such as doing the histories by typewriter, doing mailing lists for legislative receptions, having to buy some of those services, having terrible experiences in trying to buy those services because there's a limit to what the girls in the office can do, I was asked if I would be willing to undertake projects for the Council if I was provided with a computer. [unidentified board member, "And it's free".] It certainly is, Sir. I would be insulted. . . [momentary confused discussion] Well, I don't know what else to say. We all understood that it was not my computer, that it was for the Council. I provided to you--because apparently you did not have in the office--the information on what it consisted of. I don't know what else I can say. If there's some imputation that something crooked was going on, I certainly resent that. Now I trust that nothing like that was meant or intended here. But the fact is that that's what I've been up to with it. [Applause]
John Lopez: Am I correct? The amount of that computer, I believe, ran up to about $5,500. I understand it has lap capabilities or is a lap computer. I don't know; I'm ignorant when it comes to computers. . . .
The other item that needs to be retrieved is the Language Master Franklin Dictionaries, I believe. Like I said, I'm ignorant when it comes to computers. But I believe that's what it is, the Language Master Dictionary. I believe Mr. Acosta has that one. The Council did pay for it. We have the invoice on it, and that's another one we would like to have retrieved because it is CCB property.
Marion Fisher: I am not saying that there's anything crooked about Pat having the computer. I simply asked the question. I don't say that there's anything crooked about Bob having the Language Master. My question now is: John came to this Board asking for a resolution and permission to buy a duplicator. [referring to an earlier discussion about the purchase of a tape duplicator] Did the Board give the authority to buy these laptop computers and the Language Master Dictionary? Is that on record as being approved by the Board, or is that something that. . .
John Lopez: No, no, no there isn't. [An exchange follows about whether Board permission is required and why, if not, Mr. Lopez brought the duplicator question to the Board.]
John Lopez: Let me tell you right now I'm being asked every time I spend something. I've been criticized, so that's the way it's going right now. Let's move on to the agenda.
I hadn't planned to have brought this up, but items that have been going out and writing letters humiliating me and accusing me of many things have forced me. I don't believe none of you have received letters from me humiliating any of the board members, and some of these letters that are circulating are humiliating to your president of the CCB. I want to say that I'm sure that the first vice president, Mr. Acosta, has probably regretted that he chose a man for the presidency of the CCB--that he chose the wrong man. And I agree, he chose the wrong man. Because it's a man of honesty. [loud applause and shouts of praise] Thank you very much; let's please have order. I am also a president of integrity. Therefore, I am not going to give you reasons, any further reasons as to. . . . I could sit here and tell you many reasons why I'm bringing this about, but I think the presentation will explain--will be self-explanatory. The last year of my presidency has been a very difficult one because I've had no support from my first vice president. There are reasons I could give you here tonight, and I think one of the biggest reasons--I'll give it to you briefly--was that he wanted me to agree that he should continue with the president's financial privileges. And I said, "Mr. Acosta, I cannot permit that. No first vice president in this organization, as far as I can remember, has ever come in and to continue having the financial privileges that the president has, and I'm not about to start that." [applause] Therefore I proceeded--now I found these things eventually. Two months later I found out those privileges do not belong to anybody but the president.
So two months later, when Bob and I had a meeting, I asked him to please put on my desk his credit card--his gasoline credit card--and to please turn in his cellular phone. At this moment Mr. Acosta became very angry, and I think that's when he slammed the door in my face and walked away, and things just went against--you know I just had to go against the grain there for the rest of the year, and that's the way it's been.
The last thing that I also told him at our budget and finance committee meeting--after the budget meeting I said, "Mr. Acosta, I cannot continue paying your phone bill, which the CCB is paying for. I will reimburse you like anybody else, but we have been paying a monthly bill from you; the lowest one that I paid--that the CCB paid--was $104. This last year there have been bills for $140, $130, etc. This last one is the one that triggered off my suspicion. And that suspicion is that by accident one of my secretaries found that a number, or a couple of numbers--at least one--you were calling a mortgage company. Mr. Acosta said,"Well, there was a mistake on my reader."
I said, "Well, perhaps it was a mistake. What if you hadn't found it? How many mistakes has the CCB paid for in the last year?" [applause]
So with that in mind it just makes things worse. I guess Mr. Acosta doesn't like for me to be an honest man. [laughter] But I will not change. [applause and cheering]. . .
John Lopez: Okay, so anyway, I have been elected by you, and I will stand by you and make this organization a democratic one and bring it back to you members. [applause]
I will now read to you the agenda item no. 8, and we'll have our legal counsel take it from there. Number 8 reads, "The report by retained counsel, Allan Grossman, to evaluate and advise with respect to Mr. Acosta's refusal to sign the 1992 management representation letter by the Council's auditor as well as other materials which might arise in reference to such evaluation." And I present to you Mr. Grossman. [applause]
Allan Grossman: Good evening ladies and gentlemen. My name again is Allan Grossman; I'm an attorney, and, Mr. Lopez, I hand you now my letter report, which I will now read:
John B. Lopez, President
of the Board of Directors
California Council of the Blind
8700 Reseda Blvd., Suite 208
Dear Mr. Lopez:
Upon the vote of the board of directors at its September, 1993, meeting, I understand that you are authorized to retain me to review the records of the Council concerning problems with Mr. Acosta and to advise the board of ways it could resolve the problems. This letter represents my interim report, which you have asked me to read to the board of directors at its meeting tonight. At the outset of my work you provided me with the following background information:
1. In May, 1977, Mr. Acosta became president.
2. In November, 1992, rather than seek another term as president, he chose to run for and was elected first vice president.
3. All during that time, i.e., May, 1977, to the present, he has also been a member of the board of directors--this by virtue of the bylaws, which makes the president chair of the board and all other officers members of the board.
4. In November, 1992, upon assuming responsibility as president, the matters which you asked me to investigate started to come to your attention. Particularly troublesome was Mr. Acosta's refusal to sign the management representation letter to Michael Finch, the Council's auditor, authorizing him to finalize the 1992 audit, which to date Mr. Acosta still refuses to sign.
The Fiduciary Duties of Officers and Directors of Public Benefit Nonprofit Corporations Under California Law
Officers and directors of nonprofit corporations are held to high fiduciary standards typically associated with trustees of charitable trusts. However, California statutory law has limited the liability of such officers and directors for negligent acts and omissions.
On the other hand, California law does not limit the liability of an officer or director for intentional, wanton, or reckless acts; gross negligence; or actions based on fraud, oppression, or malice. The president of the Council serves on a volunteer basis, i.e., without compensation. However, even though serving as a volunteer and without compensation, the president is entitled to reimbursement for or payment of reasonable, necessary, and actual expenses incurred (a) for the benefit of the corporation and its public or charitable purposes and (b) in the performance or execution of his or her duties as an officer or director of the corporation.
Put another way, it is the president's duty to ensure that any funds raised by your organization be used only to serve its purposes, and it would be an abuse and violation of the president's fiduciary duties of care and loyalty to the Council if the president used his or her position in order to reap personal benefits at the organization's expense or ignored his or her fiduciary duty to actively promote its purposes.
With the above-mentioned principles in mind, I examined Council records which you presented to me. After reviewing those records, I discovered that many charges by Mr. Acosta while president apparently were not for the benefit of the Council, but were instead for his personal benefit. While my investigation into those disbursements continues and is by no means complete or final, I present to you a sampling of such items for which apparently he has not reimbursed the Council:
1. From 1989 to 1991, he incurred nineteen separate charges for limousine service to transport Mrs. Acosta's niece, Julie Barth, and sometimes her husband, Dennis Barth, to and from the Los Angeles International Airport and from UCLA Medical Center and the Acostas' home in Chatsworth for a charge of $2,131.
2. From 1988 to 1992 he incurred thirteen separate charges for limousine service to transport himself and his wife to and from his parents' home in San Gabriel-- $1,756.
3. In May, 1990, he incurred charges for limousine service to transport himself, his wife, his son, and others to his son's (Tom's) wedding reception and hotel, etc.--$1,609.
4. From 1989 to 1990 he incurred thirty-three separate charges for limousine service to transport himself and his wife to the Weight Watchers' office in the Capri Shopping Center in Tarzana--$1,531.
5. From 1989 to 1992 he incurred ten separate limousine charges to transport Mrs. Acosta to and from medical appointments, and on one occasion, from home to the doctor, then to the beauty salon, and back home--$976.
6. In 1990 and 1991 he incurred two separate charges for limousine service to transport himself and his wife to Dodger Stadium--$569.
7. In January, 1987, he incurred credit card charges for NutriSystem Weight Reduction Programs for himself and his wife--$533.
8. From 1990 to 1991 he incurred four separate charges for limousine service to transport himself and his wife to the Glendale Galleria and to Mission Jewelers at the Golden Mall in Burbank--$824.
9. The August 19, 1992, statement from American Express Corporate Card reflects a charge for a Franklin Language Master Computer Dictionary. To date he has failed to return it, notwithstanding your request for the return of all Council property in his possession-- $500.
10. In March, 1991, he incurred a charge for limousine service to transport him and his wife to the Fisher wedding--$465.
11. In October, 1988, he incurred two separate charges for limousine service to transport himself, his wife, and Mr. and Mrs. Stockstill to the Lawry Center in Santa Barbara-- $406.
12. In August, 1992, he incurred two separate charges for limousine service to transport himself and his wife to and from the Big Bear Inn in Big Bear, California--$397.
13. In 1986 he incurred a credit card charge for Tom's Men's Wear in Alhambra--$367.
14. In 1991 he incurred two separate charges for limousine service to transport himself to and from his tailor, Ron Rinker Clothing in Los Angeles--$221.
15. On April 16, 1992, he incurred a charge for limousine service to transport Mrs. Acosta and Lynn Curtis to the Seafood Broiler in Northridge--$130.
16. On July 30, 1992, he incurred a charge for limousine service to transport Mrs. Acosta's sister from LAX [acronym for Los Angeles International Airport] to the Holiday Inn in Brentwood--$68.
The total of items 1 through 16 equals $12,183. Please understand that the above listing of disbursements by Mr. Acosta, apparently for his personal benefit, is not total or complete, but merely a representative sampling of those items that I have been able to identify since commencing my work for you. In that regard my investigation continues. There are, nevertheless, several items which I believe are important enough to call to your attention at this time and which in my opinion require further study and evaluation. For example:
1. During the time that Mr. Acosta was president, he held a Council American Express card, which he was entitled to use for charging Council expenses. Reviewing some of the American Express card statements from 1984 to 1991, I have identified numerous restaurant charges incurred by him totalling $4,462. There are other charges by Mr. Acosta on those statements which appear to be personal.
2. From 1990 to 1992 he incurred charges for limousine service to various restaurants in the amount of $833.
3. He also had available to him a Council Unicard [gasoline] charge card. From 1985 to 1992 he charged $7,206. I'm informed that Mr. Acosta lives in Chatsworth, which is just a few miles north of the Council office in Northridge, and that he teaches at Chatsworth High School, which is also close to his home. It is difficult to understand, especially in light of all of the limousine charges he incurred over the same period of time, how he could have spent so much for gasoline on Council business. I am informed that these gasoline charges were incurred by his drivers for the Acostas' personal use and benefit. Because of the short time that I've been involved in this matter, I am unable to form an opinion whether these charges or any portion thereof were properly charged to the Council or whether they should be borne by Mr. Acosta personally.
4. I am informed that from time to time during Mr. Acosta's presidency he hired part-time drivers to assist him with his duties for the Council. Apparently [the State of] California paid those people for up to fifteen hours of work as readers. The balance of their time was paid by the Council. For example, the Council paid Ana Banovac $13,875 from September, 1990, through December, 1992; Vanessa Price, $1,828 from January, 1992, to January, 1993; Barrie Mikell, $6,109 from August, 1984, to February, 1986. Other drivers were Sandy Terry, Kim White, Ruth Olivetto, Lisa DeAngelo, Lisa Brew, Kenny Marco, Bethany Eisland, and Julie Harris. I understand that while some of these people did on occasion work in the office doing photocopying and some secretarial chores, they were used primarily by Mr. Acosta to run personal errands for himself and his wife. This item also needs further investigation to determine whether the amounts paid by the Council to these people or any portion thereof were properly charged to the Council or should have been paid by Mr. Acosta because they were for his personal benefit.
5. I have also identified cash draws in varying amounts from $100 to $1,000 from the Council's bank account, purportedly to cover Mr. Acosta's out-of-pocket expenses at meetings, conferences, and conventions. In this regard, during 1991 and 1992, he drew $10,920. I am informed that he has not supplied any receipts for those withdrawals, nor has he returned any portion of those funds to the Council.
Findings Regarding Helping Hands for the Blind
In October, 1990, Mr. Acosta incorporated Helping Hands for the Blind, a California public-benefit, nonprofit corporation. The officers of Helping Hands were Mr. Acosta as president; his wife, Ruth Ann, as vice president; and the Council's secretaries- -Barbara Parker as treasurer, and Marnie Alveno as secretary. He used the facilities of the Council office and its staff to assist him in the formation and operation of that corporation.
I believe that, soon after incorporation, Mr. Acosta acquired a thrift store in Lancaster for Helping Hands. That thrift store was in direct competition with the exclusive contract the Council had with Bill Ashe and his American Way thrift stores. In the spring of 1991 Mr. Acosta on behalf of the Council was renegotiating the Council's contract with Mr. Ashe. Mr. Ashe complained to Mr. Acosta that he thought it was improper for him to be running a thrift store in direct competition with the Council's thrift stores, and apparently he used that fact among others to help him renegotiate his American Way thrift store contract with the Council. The new American Way thrift store contract became operational July 1, 1991, resulting in more than a $100,000-a-year reduction in the amount that Mr. Ashe pays the Council. At this time it is not clear whether Mr. Acosta's Helping Hand thrift store is still operating. Further investigation is needed in that regard. Nevertheless, if the above facts are true, Mr. Acosta may be liable to the Council for monetary damages, including compensatory and punitive damages for operating a thrift store in direct competition with the Council's American Way thrift stores. In my opinion this would constitute a breach of his fiduciary duty of loyalty to the Council and its public and charitable purposes.
I inquired of the Council's staff, particularly Barbara Parker and Marnie Alveno, long-time secretaries with the Council, whether they assisted Mr. Acosta in the formation/operation of Helping Hands. They stated that they had assisted him but only because he compelled them to do so under threat of losing their jobs. [boos from audience] In January, 1993, both Barbara Parker and Marnie Alveno resigned as officers of Helping Hands.
1. It is my recommendation for the board that these matters be settled with Mr. Acosta, which I understand would be the preference of the Council in light of the many years he served as an officer and director. I would urge, however, that negotiations begin within fifteen days and that the matter be settled within thirty days.
2. If the matter is not amicably settled within thirty days, it is my recommendation that the Council immediately commence litigation against Mr. Acosta, seeking all remedies which the law makes available to the Council under such circumstances.
Resolution of the above matters with Mr. Acosta is in my opinion necessary for the following reasons:
1. Possible loss of tax-exempt status with the Internal Revenue Service. The Council's tax-exempt status as a nonprofit corporation is granted under Section 501(c)(3) of the Internal Revenue Code--the Code provision applicable to charitable organizations. This section requires "that no part of the net earnings of the exempt organization inure to the benefit of any private shareholder or individual." Courts have construed this requirement to prohibit self-dealing by officers and directors of tax-exempt corporations. Since the IRS polices those organizations for violations of fiduciary duties established by the Code, if it finds such self-dealing by an officer or director, it may among other penalties include forfeiture of the corporation's tax-exempt status.
2. Possible loss of grants and donations.
3. Complaints filed with the state's attorney general. The other day I spoke with Mr. Baumann, the auditor for the charitable trust section of the state attorney general. Mr. Baumann informed me that he has received a number of telephone calls complaining about improper disbursements by the Council which may have occurred while Mr. Acosta was president. Mr. Baumann stated that he had requested those telephone callers to put their complaints in writing but to date has not received any letters from them. He said that, if the attorney general receives letters of complaint about the Council, his office is charged by law to investigate such written complaints and, if true, to prosecute appropriate actions to remedy violation of the state's nonprofit corporations laws dealing with improper and illegal disbursements.
4. Possible action by the state attorney general against the directors personally if they should fail to pursue Mr. Acosta if it is established that the above matters related in this letter are true.
Allan F. Grossman
Marion Fisher: By your last statement does that mean that, if we do not pursue any action and the state attorney general investigates this and finds that there is wrongdoing, that this wrongdoing falls on the shoulders of every board member?
Allan Grossman: Yes, Mr. Fisher. I have in the course of my research of the law found several cases--not from California but from other states, sister states--where the state attorney general commenced litigation against innocent board members of nonprofit corporations because they were neglectful and had failed to prosecute the errant officer or director.
Roger Peterson: Mr. Chairman, I think before we go on with this discussion, it would be appropriate to move, and I therefore do move, that we accept this report. [Someone seconds the motion.]
John Lopez: All in favor please signify by saying "Aye." [Ayes are heard.] Opposed. [No opposition is heard.] Thank you.
Allan Grossman: I would like to add two comments that are not in the letter, Mr. Lopez, if I may.
John Lopez: Yes, you may.
Allan Grossman: Number one, I want you to know and your board to know that I have--and I have them with me if anyone would like to examine them--the records that I used which will support the matters stated in my letter report tonight. That stack of records from your office weighs in excess of six pounds [Whistles from the audience] and is about five inches high. The other thing that I would like to state, as I mentioned in my report: this is a tentative report, an interim report, and no more than a couple of hours ago in the corridor I was advised that the item that I reported here of some $1,600 for limousine service for Mr. Acosta's son's wedding was actually understated and the actual invoices for the limousine service for that wedding was $2,200. So it is important that your board understand that this investigation is still ongoing and is not meant to be a total, final, and complete report at this time.
Jeff Tom: Regarding the length of time in your recommendations, can you tell us why you chose such short periods for commencing litigation if negotiations don't work?
Allan Grossman: Well, as I mentioned, Mr. Baumann, the auditor in the charitable trust section in the nonprofit corporation section of the attorney general's office for Southern California, has advised me that there are these telephone complaints about your Council--about your organization--and he was, I think, glad to hear that your organization is looking into these matters, and he asked me to call him next week and to report back to him what action if any your board took.
There's also the possibility, as I mentioned, that if the IRS should choose to investigate--they do do random checks of nonprofit corporations--whether your organization would come up during one of those random audits by the IRS, I don't know. But it seems to me that these are matters that have gone on for a long time. There may be other problems as more time goes on, the memory of people fades, witnesses move away, records are lost or destroyed. I think now that this effort has been made to look into these matters, and because they involve possible violation of fiduciary duties, it's incumbent upon your organization to act promptly.
Winifred Downing: In view of the fact that not one letter of the phone calls that have been registered with the attorney general, that there's been no supporting evidence of those complaints in writing--not one--I would like to propose, since Mr. Acosta hasn't had a chance to do this kind of investigation and may have some replies to all of this, that the period be extended. I don't think we're going to jail if it's a month longer.
Roger Peterson: I think the appropriate way to do this would be to get a motion on the floor; then we can do whatever we wish with the motion. Therefore, I move that the board of directors directs the president to continue to follow the advice of legal counsel and to implement the recommendations as stated in the letter report. [The motion is seconded.]
Unidentified speaker: I think what Win and Jeff are saying is that every member has a right to defend himself, to have access to these documents, and to have their attorney. To date, Mr. Acosta hasn't been able to get in to look at the books. I think the supporting documents need to be examined, and as slow as legal matters are and arranging for attorneys, I think that thirty days is much too short--Mr. Acosta is not the president, he does not have the credit cards--that this matter can wait certainly another thirty or sixty days. Let's give him a fair chance to answer these charges. [applause]
Jeff Tom: My position was misstated, not intentionally, I think. I was asking a question to our attorney. That wasn't necessarily my position, and I just wanted to see what his reasoning was. I think that upon his recommendation, and especially in light of the fact that it's obvious that just the commencement of litigation won't mean the end of it, that in that case everything is going to be seen by everyone, that I think we should indeed go along with the recommendation of our attorney.
Marion Fisher: Mr. President and other members of the board, I've been on this board for approximately a year. Apparently most of these things, these allegations, existed--happened--more than a year ago. I myself, as a present member of the board of directors, do not feel like taking a chance of having this fall on my shoulders for something that happened in the past. I do take my responsibilities as a member of the board of directors to what extent that I should, but I don't think that I should take a chance on having something that happened two years ago, five years ago, ten years ago, that I was not any way related to, being a party of, or having any knowledge of--I don't want it falling on my shoulders, and I feel that we should definitely follow the recommendations of the attorney. [applause]
[At this point the tape runs out, and some words are missing as the new side begins.]
Chris Gray: . . .there's a thing for CCB. We've been tied up in knots for the last nine months. Our initiatives are dampened, in many cases, taken away from us, and we don't need to be tied up for thirty days, or three months, or six months, while we wrangle back and forth, sending a lot of letters back and forth. If our attorney feels that twenty days is better than fifteen, or if we're making a lot of progress in forty days instead of thirty, I'm sure he'd tell us, and I'm sure John would follow it.
Winifred Downing: I want to amend the motion in spite of all the conversation and things that have been said. I would like to amend the motion to give Mr. Acosta more time [Applause and shouts of "no"] We are going to get to vote on the amendment, Board of Directors, so it will not be rammed down your throat, and the members of the audience is not going to get to vote on it. I wish to amend the motion to be just to somebody who has given the organization, whatever his faults are, many years of service. And I'm not denying his faults, but you guys cannot deny the service either. And you can't deny the fact. . . [much commotion of scattered applause and shouts] Please let me finish.
John Lopez: [shouting] Let's have order, please; let's have order, please.
Winifred Downing: I'm not denying that there are faults here. I am telling you that the Council now is an extremely--and a year ago was when Bob left it--extremely large organization, much stronger than it was in 1978 when we had the split. Somebody worked, a lot of people worked, but he also worked very hard. In justice I think we should give him a little time to answer these charges. That does not say that I'm forgiving him these charges. It says that I think he should have time to answer them and that thirty days is a very short time. He has not been in the office to look at the books, and he may not be able to find the readers right away to do that. I can't sometimes. . . [jeers] I don't think it's right for the audience to comment. This is a board decision, and the board will get to vote. [jeers and comments about kicking out] I'm not kicking anybody anywhere. I really resent this kind of activity. I think it's very unjust. If I were in a position, I would want to be given a fair shake, and I think you guys--you're not going to lose it for giving it a month. And Marion isn't going to go to jail if we give [Bob Acosta] an extra month. I'm not going to jail either, so an extra month isn't going to mean anything to us, really, and it may mean a great deal to him.
I don't know if it matters--I know nothing about legal action, and I don't therefore know how much it will mean. [confused comments in the background as she speaks] Will anybody second the amendment before we go any further than that?
Unidentified voice: What was it?
I just said I amended the motion to extend the time by thirty days.
Unidentified voice: What was Roger's motion please?
John Lopez: Roger, what was your motion please?
Roger Peterson: The motion was to follow the recommendations of the legal counsel.
Winifred Downing: And I am not amending that process. I think we should follow the recommendations. All I'm asking is an extension in time. So, you know, don't boo me out of the organization.
Connie Schoeman: Is there a second to that--was it seconded?
John Lopez: Yes it is. Mr. Grossman, was your recommendation fifteen to thirty days?
Allan Grossman: Yes.
Connie Schoeman: Excuse me, Mr. President, point of information. This hour of the night I tend to get confused. We have an amendment now, am I correct, that says you wish to extend the time?
Winifred Downing: Yes.
Connie Schoeman: And that was seconded by Don. And we're not voting on Roger's motion? We have to vote now on the amendment. Am I correct?
Winifred Downing: That's correct.
Connie Schoeman: Good for me. [laughter] Could we hear the original recommendation? Would you read it back to us please, Mr. Grossman?. . .
Allan Grossman: Let me read all of my recommendations again so that--there are only two short paragraphs. [He rereads the recommendations from his letter.]
Marion Fisher: Mr. President, I for one think the amendment has not stated any amount of time.
Winifred Downing: It did! it did! thirty days!
Marion Fisher: It did state another thirty days? Pardon me. But my feeling is that I would love to see us settle this matter with Mr. Acosta because I expressed to Mr. Acosta in the board meeting--at the end of the board meeting on September 25--that it really pained me to see the way, as Chris put it, that he kept this Council tied up in knots for the last nine months. Because I, among many other people, realize what one hell of a bunch of work Bob put into this Council over the years. And it just breaks my heart to see him tear down what he worked so hard to do in fifteen years--to tear it down in one year.
Winifred Downing: Well, is thirty days going to make a lot of difference here?
Marion Fisher: Well, I'm afraid I don't think thirty days is going to make any difference. I don't think sixty; I think it's either going to be settled now or it's not going to be settled.
Unidentified male voice: Mr. President, I would like to speak in favor of the amendment. If we--when we talk about initiating litigation and things like that, it's kind of like atomic war because this will tie up the organization for at least four or five years if we go to court. Every court case that I've ever been involved in or seen with organizations lasts forever. The last one we were in lasted longer than the Second World War. So let's give another thirty days and hope we can resolve this matter.
Unidentified female voice, interrupting: Mr. President, I have a point of information for Mr. Grossman if I may? Mr. Grossman, I'm not a lawyer person. I was tangled up with an organization you mentioned a while ago; I worked for them for eighteen years, but I'm still not a lawyer. And my question to you is, isn't it usual--if we did follow your recommendation, if his lawyer doesn't have enough time, they have the ability to call you and say we need more time--haven't I seen lawyers do that back and forth?
Allan Grossman: Yes, certainly. If a good faith effort is being made by both sides to settle this matter, I certainly would--and some additional time was needed--I certainly would come back to your board and recommend that. I think it behooves the organization in light of these matters that some effort be made by Mr. Acosta to promptly begin the process. And I take it that these are not brand new matters. Perhaps the specificity of what I have said is new, but apparently, as I've heard here, there's been problems about these things for the past nine months. So it's not as if--as far as I know--it's not as if it's a brand new item.
So I think I would--my recommendation is as I stated. Let the negotiations begin. If there is good faith and more time is needed to give Mr. Acosta an opportunity to be heard, I would certainly recommend that to the Board.
The unidentified female voice: Mr. Chairman, I call for the question on the amendment.
John Lopez: I would like to make a comment before that. . . . I would like to say that in this negotiation we include that Mr. Acosta no longer continue issuing letters, harassing the president of the CCB, harassing the staff, and downplaying or humiliating the president and the CCB officers--that this stop now! [applause] I have had it! This kind of childish play must stop now; we cannot focus our attention on CCB work if we're going to have to tolerate childish and rotten letters that are not beneficial to the benefit of this organization. [applause]
The same female voice: We've called for the question to the amendment, Mr. President.
[After a good bit of confusion and effort to clarify the intent of the amendment, it fails when put to the vote, but not resoundingly. applause]. . .
John Lopez: On Roger's, the motion was to accept the recommendation of the attorney, and we'll vote on it. All in favor of the recommendation of the attorney signify by saying "Aye." [The motion passes unanimously.] Thank you. [applause] Okay, Mr. Grossman, just for the point of clarification, would you please state the recommendation that we just now passed?
Allan Grossman: Yes. That settlement negotiations with Mr. Acosta and his attorney begin within fifteen days from today, and that the matter be amicably resolved by settlement within thirty days. In the event that the matter is not settled within thirty days, that litigation be commenced immediately thereafter.
John Lopez: Okay. I think at this point it's appropriate that we ask Mr. Acosta to come forward and make a statement. If you wish, Mr. Acosta, the floor is all yours.
[After some discussion Bob Acosta reads a resolution commending Denise and David Weddle for their work at CCB for twenty-three years.]
John Lopez: Okay, Mr. Acosta, you have the floor to talk in regard to the issues.
Bob Acosta: My dear friends,. . . My dear friends, I guess we're dealing with trust. In the political letters that we sent-- and they were, I thought, mostly political--I told you that I would be sued. I told you that it would happen because we haven't dealt with another issue that must be dealt with, and that is the $16,000 of overtime for secretarial assistance last year. I understand what is going on. I lived through 1978, and at that time Ken Jernigan sued me for $15,000,000. [An unidentified voice interrupts with, "Because you hired your wife."] And by the way, if my home were burning, I don't know that I'd go to some of you guys for help. But that's all right. I can assure you that I've never gotten rich on the Council. I categorically deny all of those charges, and I look forward to the opportunity of responding in writing. And yet this board, many people have pre- judged, they said hey, let's throw this blind man in jail and let's give him only fifteen days to respond. But you've made your choice, and I will respond to it. I ask you in spite of the fact that I wonder what this lawyer is charging us for his time at the end of the agenda. You gotta think about that. I wonder what's up--you know these charges, many of them, all of them, are totally untrue, and I look forward to responding to them. But see it for what it is: a political smear--an attempt to avoid the question of a $16,000 overtime which I never authorized, and we've got to deal with that. You can't avoid it. Thank you, and God bless you all.
John Lopez: I must repeat what Chris Gray said a while ago: Bob, you wrote the book.
The remainder of the meeting consisted of comments concerning the amount of time worked by CCB staff and discussion of a motion to do whatever was necessary to work with the National Federation of the Blind to see that a strong Braille bill is passed by the California legislature. At the close of the meeting members of the audience were invited to comment on the issues raised during the evening.
The California Council of the Blind convention at which this board meeting occurred was one of the most turbulent in the organization's history, with each party (the staff, the board, and Bob Acosta) having its own attorney, dealing at arm's length, and prepared to do battle. There was tumult among the membership as well. One of those attending was Peter-Marc Damien, who said in the Spring 1994, Blind Californian:
The Fall CCB Convention for 1993 will no doubt be remembered in the blind community as one of the most contentious in history.
. . . . Bob Acosta was president of the CCB for sixteen years. In November, 1992, he hand-picked John Lopez to succeed him due to directives from the American Council of the Blind, to which Acosta aspired for national office. John was chosen because Bob thought he could control him. John, on the other hand, decided to be his own man. In an audit for 1992, there were some discrepancies which came to John's attention. Lopez fired the longtime accountant/treasurer, hired another and studied the books going back to the beginning of Acosta's tenure, finding all kinds of misuse of funds. One thing led to another and by October, 1993, Acosta had hired lawyers and set up a slate of officers (who were bound to support him) for the election to be held in LA at the Convention. Lopez set up another slate (who were bound to support "CCB") through the CCB Nominations Committee.
Acosta had also accused the sighted staff of financial discrepancies. So they hired lawyers. CCB was really forced to hire lawyers, too! The first public showdown, Thursday night, revealed that the new accountant/treasurer had found receipts for the misuse of CCB funds. Some examples were limo services, a taxi hired to drive roundtrip from LA to Big Bear (that one was for $2,200 alone), fees at NutriSystems and Weight Watchers, men's wear, and so forth.
The Convention exploded on the spot, dividing into several camps. The longtime membership, many of whom were older people, divided into two groups, those who supported Acosta no matter what, and those who felt betrayed and angry. The newer membership, mostly younger people, including students, as well as older people, new (within the last five years) to the organization (people like me) were mostly disgusted with the whole thing. We were, it turned out, ready to vote for change.
A coalition became apparent when voting began Friday evening. Lopez dragged the whole Convention through all the accusations yet another time before entertaining a motion to stop debate. Acosta wanted the debate to continue. It was a measure to test the water, as it turned out, because the Acosta faction lost about two to one. In the election for second vice president, Don Queen, Acosta's candidate, lost to Cathy Skivers, also by about two to one. Lopez's candidate for treasurer, the same man appointed to review the books, who made the best treasurer's report in the history of CCB the night before, won by better than two to one. He was nominally opposed, not by Acosta's candidate, Pat Urena, who was never nominated, but by someone else. By the time the positions on the board came up for a vote, Acosta's candidates either declined nomination or were not nominated at all. Basically, it was a rout, followed by a motion to recall Acosta from his position as first vice president, which was voted at the final session on Sunday.
This is how one convention attendee viewed the November meeting of the California Council of the Blind, and national repercussions were soon to follow. Acosta either resigned from (or in some other way was separated from) the position of second vice president of the American Council of the Blind. This was done quietly with only a brief routine announcement in ACB's publication. Acosta also ceased to be president of ALL, again with no public statement or fanfare. The situation was obviously and understandably a cause of extreme embarrassment.
Meanwhile, the months dragged by, and the California Council of the Blind took no action against Acosta. Sources within the organization indicate that internal bickering and consternation were extreme--some hoping that Acosta would make restitution, others feeling that he should be prosecuted immediately, and still others holding that he should be given mercy. Many apparently felt totally disillusioned and simply turned away with disgust.
Finally (on April 12, 1994) the CCB took action and filed a lawsuit against Acosta in the Los Angeles County Superior Court. Alleging fraud and violation of fiduciary duties, the Complaint sets forth the cause of action. Item 4 of the Complaint is noteworthy since it makes clear that others besides Acosta may ultimately be sued. It reads as follows:
4. Plaintiff sues fictitious defendants, Does 1 though 20, inclusive, and each of them, because their names and/or capacitates and/or facts showing them liable to plaintiff are not presently known. Unless otherwise indicated, each defendant is sued as the agent and/or employee of every other defendant acting within the course and scope of said agency and/or employment, with the knowledge, direction, and/or consent of said co-defendants. Plaintiff is informed and believes and therefore alleges that each defendant designated herein as a "Doe" was responsible, intentionally, or wrongfully, or in some actionable manner, for the events and happenings referred to herein which were a legal cause of the injury and damage to plaintiff as hereinafter alleged.
Item 6 begins to give the specifics of the charges:
6. Defendant Acosta, while an officer and director of plaintiff corporation, breached the above stated fiduciary duties of care in the following manner and ways:
(a) During the time Mr. Acosta was president, he held a Council American Express card which he was entitled to use only for charging Council expenses. From 1984 to 1991, he made numerous restaurant charges on that credit card totaling approximately $4,462. Plaintiff is informed and believes and therefore alleges that said charges were for Acosta's personal benefit at plaintiff's expense, in an exact amount that will be established at trial.
(b) From 1990 to 1992, Acosta incurred charges for limousine services to various restaurants, in the approximate amount of $833. Plaintiff is informed and believes and therefore alleges that said charges were for Acosta's personal benefit at plaintiff's expense, in an exact amount that will be established at trial.
(c) Acosta also had available to him a Council Unocal [gasoline] charge card. From 1985 to 1992, he charged approximately $7,206. Plaintiff is informed and believes and therefore alleges that said charges were for Acosta's personal benefit at plaintiff's expense, in an exact amount that will be established at trial.
(d) During Acosta's presidency, he hired part-time drivers purportedly to assist him with his duties for the Council. For example, the Council paid Ana Banovac approximately $13,875 from September 1990 through December 1992; Vanessa Price approximately $1,828 from January 1992 to January 1993; Barrie Mikell approximately $6,109 from August 1984 through February 1986. Other drivers were also hired by him and paid by the Council. Plaintiff is informed and believes and therefore alleges these drivers were used primarily by Acosta to run personal errands for himself and his wife and were for Acosta's personal benefit at plaintiff's expense, in an exact amount that will be established at trial.
(e) During his presidency, Acosta took cash draws in varying amounts from $100 to $1,000 from the Council's bank account, purportedly to cover his out- of-pocket expenses at Council meetings, conferences, and conventions. In this regard, during 1991 and 1992, he drew approximately $10,920; that he has not supplied any receipts for those draws nor has he returned any portion of those funds to the Council. Plaintiff is informed and believes and therefore alleges that these draws were for Acosta's personal benefit at plaintiff's expense, in an exact amount that will be established at trial.
7. Plaintiff is informed and believes and therefore alleges that during the time Acosta was president of the Council, he fraudulently, dishonestly, and unethically spent its charitable trust funds to maintain a lavish personal lifestyle at the Council's expense, in an exact amount that will be established at trial. The following are examples of the ways in which Acosta fraudulently, dishonestly, and unethically breached his fiduciary duties of care to plaintiff by spending corporate charitable trust funds to reap personal benefits:
(a) From 1989 to 1991, he incurred 19 separate charges for limousine service to transport Mrs. Acosta's niece, Julie Barth (and sometimes her husband Dennis Barth) to and from Los Angeles International Airport, to and from UCLA Medical Center, and the Acosta home in Chatsworth, in the approximate sum of $2,131.
(b) From 1988 to 1992, he incurred 13 separate charges for limousine service to transport himself and his wife to and from his parents' home in San Gabriel, in the approximate sum of $1,756.
(c) In May, 1990, he incurred charges for limousine service to transport himself, his wife, his son, and others to his son Tom's wedding reception, hotel, etc., in the approximate sum of $1,609.
(d) From 1989 to 1990, he incurred 33 separate charges for limousine service to transport himself and his wife to the Weight Watchers office in the Capri Plaza shopping center in Tarzana, in the approximate sum of $1,531.
(e) From 1989 to 1992, he incurred 10 separate charges for limousine service to transport Mrs. Acosta to and from medical appointments and, on one occasion from home to the doctor, then to the beauty salon, and then back home, in the approximate sum of $976.
(f) In 1990 and 1991, he incurred two separate charges for limousine service to transport himself and his wife to Dodger Stadium, in the approximate sum of $569.
(g) In January, 1987, he incurred credit card charges for the Nutri-System weight reduction program for himself and his wife, in the approximate sum of $533.
(h) From 1990 to 1991, he incurred four separate charges for limousine service to transport himself and his wife to the Glendale Galleria and to Mission Jewelers at the Golden Mall in Burbank, in the approximate sum of $524.
(i) A statement, dated August 19, 1992, from American Express Corporate Card, reflects a charge for a Franklin Language Master computer dictionary, which he has not returned to plaintiff, notwithstanding plaintiff's request for the return of all Council property in his possession, in the approximate sum of $500.
(j) In March, 1991, he incurred a charge for limousine service to transport him and his wife to the Fisher wedding, in the approximate sum of $465.
(k) In October, 1988, he incurred two separate charges for limousine service to transport himself, his wife, and friends, Mr. and Mrs. Stockstill, to the Lawry Center in Santa Barbara, in the approximate sum of $406.
(l) In August 1992, he incurred two separate charges for limousine service to transport himself and his wife to and from The Big Bear Inn, in the approximate sum of $397.
(m) In 1986, he incurred a credit charge for Tom's Men's Wear in Alhambra, in the approximate sum of $367.
(n) In 1991, he incurred two separate charges for limousine service to transport him to and from his tailor, Ron Rinker Clothing in Los Angeles, in the approximate sum of $221.
(o) On April 16, 1992, he incurred a charge for limousine service to transport Mrs. Acosta and Lynn Curtis to the Seafood Broiler in Northridge, in the approximate sum of $130.
(p) On July 30, 1992, he incurred a charge for limousine service to transport Mrs. Acosta's sister from Los Angeles International Airport to the Holiday Inn in Brentwood, in the approximate sum of $68.
8. As a result of Acosta's fraudulent breaches of his fiduciary duties of care owed to plaintiff as alleged above, plaintiff prays that the court assess the compensatory damages for all of the fraudulent and illegal breaches of the fiduciary duty of care owed to plaintiff in an exact amount that will be established at trial.
9. That because Acosta fraudulently breached his fiduciary duties of care to plaintiff in a despicable, deliberate, cold, callous, and intentional manner to injure and damage plaintiff, plaintiff requests the assessment of exemplary damages against defendants, and each of them, in an amount to be established according to proof at the time of trial.
10. Plaintiff also requests the award of attorneys' fees and costs pursuant to Code of Civil Procedure section 1021.5.
11. Plaintiff also requests the award of prejudgment interest to the extent allowable under section 3287 or 3288 of the Civil Code.
For Compensatory and Punitive Damages for Fraudulent Breach of Fiduciary Duties of Loyalty Against Robert Acosta. Does 11 Through 20, and Each of Them
12. The allegations contained in paragraphs 1 through 5 and paragraphs 8 through 11, inclusive, are realleged and incorporated by reference as though fully set forth herein.
13. In October 1990, Acosta incorporated Helping Hands For the Blind, a California public benefit nonprofit corporation. The officers of Helping Hands were Mr. Acosta as president, and his wife Ruth Ann as vice president. He used the facilities of the Council office and its staff to assist him in the formation and operation of that corporation. Plaintiff is informed and believes and therefore alleges that soon after incorporation, Acosta acquired a thrift store to benefit Helping Hands, and that thrift store was in direct competition with the exclusive contract the Council had with Bill Ashe and his American Way Thrift Stores.
14. Plaintiff is informed and believes and therefore alleges that in the spring of 1991, Acosta, on behalf of the Council, was renegotiating the Council's contract with Mr. Ashe. That Mr. Ashe complained to Acosta that he thought it was improper for him to be running a thrift store in direct competition with the Council's thrift stores and that he used that fact, among others, to help him to renegotiate his American Way Thrift Stores contract with the Council. The new American Way Thrift Stores contract became operational July 1, 1991, resulting in more than $100,000 a year reduction in the amount Mr. Ashe paid to the Council under the original contract.
15. Plaintiff is informed and believes and therefore alleges that Acosta has been running and representing to the public that Helping Hands Thrift Store is owned and operated by the Council, and by and through such fraudulent misrepresentation, made profits that rightly belong to plaintiff. That an accounting of such illegally obtained profits must be had in order to determine the exact amount of such illegally obtained profits and damages.
Wherefore, plaintiff prays judgment against defendants Robert Acosta, Does 1 through 20, inclusive, and each of them, as follows:
a. For compensatory damages according to proof;
b. For exemplary damages according to proof;
c. For attorneys' fees and costs pursuant to Code of Civil Procedure section 1021.5;
d. For prejudgment interest to the extent allowable under section 3287 or 3288 of the Civil Code;
e. For such other relief and damages as the court deems just and proper in the premises.
This is what the Complaint says, and it boggles the mind. The Monitor has repeatedly tried to call Mr. Acosta for comment, but we only get his answering machine. Therefore, the documents must speak for themselves.
In view of the charges and the circumstances surrounding them, certain questions inevitably occur. Since the charges against Acosta were well known and a matter of public record when he was expelled from the National Federation of the Blind in 1978, why did the California Council of the Blind elect and re- elect him term after term? Why did the American Council of the Blind make him an officer and one of their principal leaders? Why did ALL elect him their president? Why were auditors and officials of the California Council of the Blind not aware of the details of what is now being revealed? If they were aware, why did they not blow the whistle sooner? Why did cash draws in the amount of more than $10,000 (draws that were made with no receipts or explanations) go unchallenged when they were obviously apparent? Why was action not taken against the Helping Hands For The Blind corporation, and is it (as we have been told) still operating and raising funds? Why was action not taken when Helping Hands For The Blind began sending fundraising letters to blind persons throughout the country, a fact that was widely known? What is the full extent of the Helping Hands For The Blind operation, who is it really benefitting, and is the California Attorney General or others taking remedial steps? Why did the office of the California Attorney General not take action upon learning of the facts that have been revealed instead of saying that they would need an outside person to make a written complaint? Why was the lawsuit not filed last fall in accord with the vote taken at the November board meeting instead of in April, more than five months later?
Whatever the answers to these questions may be, it is not just the American Council of the Blind or its California affiliate that is hurt. All of us are hurt--organizations of the blind, agencies for the blind, and individual blind people. Certainly the American Council of the Blind will find this situation embarrassing, but we must maintain perspective. I for one have found nothing but honesty and fairness in my dealings with ACB's president, LeRoy Saunders. I believe I would have the same experience in contacting many other ACB leaders. Neither the ACB nor its individual members can be blamed for the failings of one person, or even one leader. They can be blamed, however, if they fail to take proper action once the circumstances are known. The fact that Mr. Acosta is no longer an ACB national officer speaks for itself. But the fact that he was elected and was recognized as a leader year after year also speaks for itself. Something else is worth noting. We are told that phone number (818) 341-8217 rings in Mr. Acosta's home in Chatsworth, California. If this is true, it is troubling--especially in view of an item carried in the May, 1994, Braille Forum, the publication of the American Council of the Blind. Here it is:
Cookbook Of The Month: Helping Hands For the Blind has formed a "Cookbook of the Month" club, which is currently producing Braille cookbooks on various food items. For more information, call (818) 341-8217, or write to Helping Hands For The Blind, 20734C Devonshire Street, Chatsworth, California 91311.
Although this notice is carried in the Braille Forum, it is not absolutely and finally conclusive. It is possible (though difficult to accept) that the editors of the magazine did not know about Mr. Acosta's circumstances and his relationship with Helping Hands For The Blind. Even if they did know, it is possible (though, again, difficult to accept) that ACB's elected officers did not know that the Helping Hands item would be published in their magazine--especially, since they could (and probably should) have taken steps to prevent this. There comes a time when responsibility must be accepted.
None of us should take joy in the shocking story of lavish living and limousines that has been revealed. Again, it must be emphasized that nobody gains and everybody loses. Rather than feel satisfaction or point fingers, we should consider the damage that has been done and how to mitigate it. Among the essentials in the process are accountability, organizational maturity, and lack of recrimination.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[PHOTO: Portrait. CAPTION: Dennis Groshel]
HISTORIC VICTORY FOR THE NATIONAL FEDERATION OF THE BLIND AND BLIND VENDORS
by James Gashel
From the Editor: For years now we have been following the struggle between the Minnesota licensing agency for blind vendors (the Department of Jobs and Training), representing Dennis Groshel, a vendor in St. Cloud, and the Veterans' Canteen Service. The National Federation of the Blind has assisted and advised Minnesota officials and Dennis Groshel throughout this long ordeal, and at last we can report that this case has ended in a complete victory for Dennis, for the Minnesota licensing agency, and for vendors in the states served by the Eighth Circuit Court of Appeals. The issues decided in this case will undoubtedly rise again, but there is now a strong precedent to help future vendors pressured by federal agencies wishing to sidestep provisions of the Randolph-Sheppard Act. Here is the story as told by James Gashel, Director of Governmental Affairs for the National Federation of the Blind, who was a member of the original arbitration panel in the Groshel case. This is what he has to say:
The federal Randolph-Sheppard Act directs that "priority" be given to blind persons in the operation of vending facilities on federal property. This mandate applies to all departments, agencies, and instrumentalities of the United States. Nonetheless the Department of Veterans Affairs and its Veterans Canteen Service (VCS) have been particularly stubborn in refusing to abide by the law. The Department operates 171 medical center facilities throughout the country. Each state, with the exception of Alaska, has at least one of these centers, and several states have many more.
In theory there should not be the slightest doubt about whether the veterans' facilities are subject to the Randolph-Sheppard Act, but for many years that has not stopped the Department of Veterans Affairs from resisting the application of the priority for blind vendors. The Department has contended that the VCS has the exclusive right by law to serve patients, visitors, and others at the medical centers which it operates. The National Federation of the Blind has held exactly the opposite view.
Dennis Groshel is a licensed blind vendor in Minnesota. He is also an active and long-time member of the National Federation of the Blind. Beginning in 1985, he was assigned to a vending facility, consisting entirely of vending machines, at the Department of Veterans Affairs Medical Center located in St. Cloud, Minnesota. The vending machines at the medical center site had been serviced by a blind vendor since 1977. This was an exception to the Department of Veterans Affairs' general rule.
The arrangement between the VCS and the licensing agency for blind vendors in Minnesota was an ordinary commercial vending contract. In agreeing to this arrangement, the VCS was not conceding that the Randolph-Sheppard Act would have any applicability at the St. Cloud medical center or at any similar site. From the VCS's point of view it was irrelevant that the machines were being serviced by a blind vendor who was licensed under the Randolph-Sheppard Act.
A commercial vending contract differs from an agreement used under the Randolph-Sheppard Act in at least two respects. First, a contract has a limited term, normally three or five years, with two noncompetitive extensions allowed for satisfactory performance. The Randolph-Sheppard agreement, technically referred to as a "permit," is for an indefinite period, subject to cancellation only in the event of non-performance. Second, commercial contracts require vending machine operators to pay a commission fee based on sales. No commission is charged for sales made by blind vendors under Randolph-Sheppard permits.
In 1985, when Dennis Groshel took over the St. Cloud medical center vending machines, the contract was due to expire in 1987. It was uncertain whether he would be awarded the contract after that time. Also Dennis was required to pay an amount equal to seventeen percent of his gross revenues directly to the VCS as a sales commission. The contract required this payment. These conditions--the periodic termination of the contract and the sales commission--were not imposed upon other blind vendors in the state. The situation raised questions of basic fairness and about the applicability of the law.
To its credit the Department of Jobs and Training concluded that Dennis Groshel should be treated like all of the other vendors in its program. Therefore, the licensing agency asked the VCS to issue a normal Randolph-Sheppard permit for the continued operation of the vending machines at the St. Cloud medical center after the 1987 expiration of the existing commercial vending contract. The application for a permit was filed in 1986, and soon thereafter the written response came back. The VCS refused the permit request with the stated reason that the medical center (and by implication all similar ones) are exempt from the priority provisions of the Randolph-Sheppard Act.
At this point the battle was joined. The legal question was whether the priority provisions of the Randolph-Sheppard Act apply to property which is served by the VCS or whether that property is exempt from the Randolph-Sheppard Act. The Department of Veterans Affairs correctly pointed out that vending machines on property served by the VCS are exempt by law from the income- sharing provisions which would otherwise apply. The Department then argued that, by extension, Congress implicitly provided an exemption from the Act for all VCS activities. These arguments are grist for the mill of the federal courts, but time was running out for Dennis Groshel. The immediate concern was what would happen to his vending facility in mid-1987 when the contract was scheduled to expire.
Under the Randolph-Sheppard Act a state licensing agency may file a complaint with the Secretary of Education if it finds that a federal property-managing Department, agency, or instrumentality is violating the law. An arbitration panel is then appointed to conduct a hearing and decide whether the act has been violated. The Minnesota agency filed its complaint early in 1987, but the normal arbitration of such matters can take as long as two years. In order to protect Dennis Groshel's business during this period, we advised the state to seek a federal court injunction which would maintain the existing contract until the legal dispute was resolved. The Minnesota attorney general agreed.
An injunction was sought and obtained. This placed Dennis's livelihood out of harm's way while the legal proceedings moved back from the federal district court to the arbitration panel. Panels appointed under the Randolph-Sheppard Act are composed of three members--one chosen by the state licensing agency, one chosen by the federal property-managing agency, and a third member who serves as chairman and is appointed by the other two members. On this panel I served on behalf of the State of Minnesota. That was, of course, the official, legal designation; but I also served on behalf of Dennis Groshel and, in a broader sense, on behalf of all blind vendors who might someday be affected by the decision in this case.
To say that the proceedings before this panel were convoluted would be an understatement. The hearing record was more extensive than that developed in any previous Randolph-Sheppard arbitration. Well over one hundred separate documents were placed before the panel as evidence during the first of two hearings. As matters evolved, the dispute was divided into three phases with a temporary (initial) ruling made in 1988, a supplemental decision made in 1989, and a final decision made in August of 1991. In all three rulings the panel unanimously confirmed the view that the Randolph-Sheppard Act does apply to property served by the VCS.
The purport of this decision was that the state of Minnesota and Dennis Groshel must be given priority to provide vending machine services at the St. Cloud medical center. The panel was divided, however, on several questions relating to the terms of a continuing agreement between the VCS and the state which would implement the statutory priority. The most pronounced disagreement among the panel members revolved around money--would the VCS be entitled to receive a commission from sales made from vending machines operated by a blind vendor?
In its initial ruling the panel unanimously declared that the commission fee of seventeen percent, which had been charged to Dennis Groshel based on his gross sales, was "an inequity." The panel then ordered that no commission should be charged by the VCS until all of the legal questions had been resolved. The effect of this decision was an immediate doubling of Mr. Groshel's net income from approximately $13,500 to about $27,000. The difference was the amount that he had been paying to the VCS.
This is how the case stood until August 14, 1991, when the panel issued its final decision and award. In a surprising turn of events, two members--a majority of the panel--reversed themselves on the commission question and found that a seventeen- percent commission rate would be acceptable at the St. Cloud medical center. They expressed the view that this did not violate the Randolph-Sheppard Act. I disagreed, arguing that the Randolph-Sheppard Act does not allow the VCS to impose a charge for providing a vending-facility opportunity to a blind vendor. To permit a commission to be charged would be inconsistent with the panel's firm opinion that the Randolph-Sheppard Act applies to property served by the VCS just as it does to all other agencies. Still the vote was two to one.
Court action was then necessary to appeal the arbitration panel's final ruling. In the fall of 1992 the District Court upheld the panel's unanimous view that the Randolph-Sheppard Act applies to the medical center and then reversed the panel majority on its view that a commission could be charged. (See the February, 1993, issue of the Braille Monitor for the text of this decision.) The Department of Veterans Affairs appealed this ruling to the United States Court of Appeals for the Eighth Circuit. Throughout these proceedings the National Federation of the Blind continued to represent Dennis Groshel's interests by formally intervening in the case on his behalf.
On March 11, 1994, the court of appeals ruling was handed down. It will stand as the final decision in this dispute. The Department of Veterans Affairs has decided to abandon further appeals. However, this does not necessarily signal a change of heart. The decision which has been issued is binding throughout the states covered by the Eighth Circuit--Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota-- and is precedent-setting for the rest of the country.
Whether the Department of Veterans Affairs will cooperatively follow this decision in Minnesota or in any other state in the Eighth Circuit is another question altogether. As for the rest of the country, we can expect the Department of Veterans Affairs to continue to challenge application of the Randolph-Sheppard Act to its medical centers in the hope that the Courts of Appeals in other circuits will reach a different conclusion. If that happens, the issue may eventually wind up before the United States Supreme Court, but in the meantime the decision in Minnesota stands.
The appeals court's decision unambiguously declares that blind vendors must be given priority to operate vending facilities at sites controlled by the Department of Veterans Affairs, including the medical centers which are served by the VCS. Consistent with this priority, the VCS cannot charge a commission for vending services provided by a blind vendor. By implication this principle applies to all other agencies of the federal government as well. The court has upheld the view that the priority for blind vendors means access to vending facility opportunities (including free space for conducting business) on federal property. This has been the position strongly argued by the National Federation of the Blind at every step of this lengthy proceeding.
Because of its historic significance and practical value to all of us, here is the complete text of the court of appeals ruling:
United States Court of Appeals
For the Eighth Circuit
Appeal from the United States District Court for the District of Minnesota
State of Minnesota,
Department of Jobs and Training,
State Services for the Blind and
Dennis Groshel, Intervenor-Appellee,
Richard W. Riley,
United States Secretary of Education,
U.S. Department of Education,
U.S. Department of Veterans Affairs,
James B. Donahoe, Administrator,
Veterans Canteen Service,
Submitted: October 12, 1993
Filed: March 11, 1994
Before Fagg, Circuit Judge; Ross, Senior Circuit Judge; and Magill, Circuit Judge
Fagg, Circuit Judge
Following a dispute over the operation of a blind vendors' vending facility located on United States Department of Veterans Affairs (VA) property, the district court granted summary judgment in favor of the Minnesota Department of Jobs and Training, State Services for the Blind and Visually Handicapped (DJT). The district court held the VA and the Veterans' Canteen service (collectively VCS) are subject to the Randolph-Sheppard Vending Stand Act, 20 U.S.C. Sections 107-107f (1988). Thus, the district court ruled the VCS must follow the Act's permit application and approval regulations. See 34 C.F.R. Part 395 (1993). The district court also held the VCS cannot charge commissions on sales from the blind vendor's vending operation. The federal defendants appeal, and we affirm.
The Randolph-Sheppard Act provides the framework for a comprehensive regulatory scheme giving blind persons licensed by state agencies priority to operate vending facilities on all federal property. As authorized by section 107(b), the Secretary of the Department of Education (DOE) has prescribed detailed regulations to implement the Act's provisions. Before establishing the vending facility, the state agency must submit a permit application that includes desired terms and conditions of operating the facility. If the federal department that manages the property approves the application, the department issues a permit to the state agency, and a blind person licensed by the state agency operates the vending facility. The Act also provides that any limitation on a vending facility's operation must be approved by the Secretary of the DOE.
In 1977 the VCS and the DJT negotiated an agreement allowing the DJT to furnish vending services at the VA Medical Center in St. Cloud, Minnesota. Rather than operating under a Randolph-Sheppard permit, the DJT agreed to operate the vending facility under a renewable contract that required the DJT to pay the VCS sales commissions from the vending facility. Since 1985 the vending facility has been operated by Dennis Groshel. Although the DJT renewed the contract several times, when it was time to renegotiate the contract in 1986, the DJT applied for a permit to operate the facility under the Randolph-Sheppard Act. Adhering to the regulations governing permits, the DJT's proposed permit contained a term requiring the VCS to issue the permit for an indefinite period of time. The proposed permit also did not provide for the VCS to collect commissions based on the blind vendor's sales. The VCS denied the permit application, claiming the VCS was exempt from the Randolph-Sheppard Act and refusing to proceed under the Act's permit regulations.
The DJT filed a complaint with the secretary of the DOE for arbitration. An arbitration panel concluded the VCS is subject to the Randolph-Sheppard Act and must give priority to blind vendors but held a negotiated agreement could be substituted for the permit process. Although the arbitration panel ordered the parties to negotiate, no agreement could be reached. The arbitration panel then ordered the parties to enter a five-year contract for the operation of the vending facility, subject to renegotiation. The arbitration panel also concluded the VCS could impose a seventeen-percent commission on the blind vendor's gross vending sales.
On review of the arbitration panel's decision, the district court granted summary judgment to the DJT. The district court held the arbitrators' decision that the VCS is subject to the Randolph-Sheppard Act compels the conclusion that the VCS must confer authority to operate the St. Cloud medical center's vending facility under the Act's permit regulations. Thus, the district court held the DJT must apply for a permit that contains the terms mandated by 34 C.F.R. Section 395.35; and, if the VCS approves the permit, the VCS must issue the permit for an indefinite time period, subject only to the blind vendor's failure to comply with the permit's terms. The district court also concluded that commission payments to the VCS are a limitation on the operation of a vending facility that cannot be imposed without authorization from the Secretary of the DOE.
Because the Randolph-Sheppard Act's plain language provides that the Act applies to federal departments, agencies, and instrumentalities in control of any federal property, the Act clearly applies to the VCS. Although the VCS now concedes that the VCS is subject to the Act, the VCS argues that its department should be permitted to go outside the DOE's regulations and substitute a negotiated vending agreement for the permit system. We cannot agree. Having conceded that the Act applies to the VCS, it necessarily follows that the VCS must comply with the regulatory scheme for implementing blind vendor operations on VA property. Neither the Act nor the regulations permit the VCS to pick and choose which of the Act's governing regulations to follow. Thus, we agree with the district court that the VCS must comply with the Randolph- Sheppard Act's provisions, including the detailed permit system the secretary of the DOE has chosen to implement the Act. Because the regulations require that a permit be issued for an indefinite time period, any permit issued in this case must contain this term.
We also agree with the district court that in prohibiting "[a]ny limitation on the . . . operation of a vending facility" unless justified by the Secretary of the DOE, the Randolph-Sheppard Act precludes the VCS from requiring blind vendors to pay commissions on vending sales without the Secretary's approval. Although we need not resort to other tools of statutory construction because the statute is clear, the Act's legislative history and the Act's related provisions support our conclusion. When Congress amended the Act in 1974, Congress was concerned with federal agency abuses of blind vendors' operations, like forcing blind vendors to pay commissions. Further, neither the Randolph-Sheppard Act nor the Veterans' Canteen Service Act, 38 U.S.C. Sections 7801-7810, authorizes the VCS to collect commissions from a blind vendor or the state licensing agency. Although the Randolph-Sheppard Act authorizes the state licensing agency to set aside funds from its blind vendors' operations for a limited list of purposes, the list does not include commission payments.
Finally, we reject the VCS's contention that the DOE's permit system interferes with the VCS's mission to provide articles of merchandise to hospitalized veterans at reasonable prices and to remain self- sustaining. Essentially, the VCS contends it should exercise control over blind vendors' prices and merchandise selection and charge commissions on the vendors' sales. Because Congress's intent to apply the Randolph-Sheppard Act to the VCS is clear from the plain language of the Act, however, the VCS "must act in accordance with that intent and [we] need not defer to the [VCS]." Contrary to the VCS's claim, it is entirely possible for the Randolph-Sheppard Act and the Veterans' Canteen Act to co-exist in harmony. Although the Veterans' Canteen Act empowers the VCS to operate canteens on VA property, nothing in the Act authorizes the VCS to exercise this statutory control over Randolph-Sheppard vendors who also operate on VA property. Because blind vendors operate vending facilities under the Randolph-Sheppard Act and the DOE regulations, the blind vendor's operation is neither a VCS canteen nor subject to the Veterans' Canteen Act and the VCS's regulations. Indeed, to allow the VCS to operate independently of the Randolph-Sheppard Act, Congress exempted the VCS's vending machines from the income share provisions of the Randolph-Sheppard Act.
Although the Randolph-Sheppard Act does not give the VCS control over a blind vendor's prices and merchandise selection or permit the VCS to charge commissions on the vendor's sales, the Act does not leave the VCS at the mercy of the DJT. Under the Randolph-Sheppard Act's permit regulations, the VCS may negotiate many terms of the DJT's permit to meet the needs of its medical center patients; and, if unsuccessful, the VCS may seek a limitation on the permit's terms from the Secretary of the DOE. Further, the VCS may deny an unacceptable permit. In addition, if the VCS justifies to the Secretary that prohibiting the VCS from charging commissions adversely affects the interests of the United States, the Secretary may permit the VCS to charge commissions from the blind vendor.
Thus, we affirm the district court. A true copy. Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit
There you have the actual text of the decision. The outcome in this case brings to mind some of the previous attempts made by others to use the courts for enforcement of the Randolph-Sheppard Act. The most notable cases were those brought by the Randolph-Sheppard Vendors of America (RSVA) and the National Council of State Agencies for the Blind (NCSAB) against the Department of Defense. The issue involved was a challenge to bids solicited from fast-food chains to set up shop at military installations in several states. Rather than painstakingly following the arbitration procedures required under the Randolph-Sheppard Act, RSVA and NCSAB attempted to by-pass the process and obtain a ruling directly from the federal courts.
In response to the suits filed, the plaintiffs got a ruling from the federal district court for the District of Columbia, but it was certainly not the ruling they sought or wanted. The court declined to issue an injunction and declared that bidding for vending facilities on federal property would not necessarily violate the priority for blind vendors required by the Randolph-Sheppard Act. This decision posed an immediate threat to the entire Randolph-Sheppard program and forced the National Federation of the Blind to intervene before the U.S. Court of Appeals for the D.C. Circuit.
We argued in that case that the correct course of action for a blind vendor or an agency aggrieved by a violation of the Randolph-Sheppard Act was to use the arbitration process first, before going into federal court. We asked that the original decision be set aside entirely, and the court of appeals agreed. The threat to the Randolph-Sheppard program was averted. We said at that time that securing rights and opportunities on behalf of blind vendors required both patience and competence. These qualities had not been demonstrated by the plaintiffs in the Defense Department fast-food case. We wondered aloud whether such tactics if used in the future would place the Randolph-Sheppard program in jeopardy again.
The strategy employed in the Department of Veterans Affairs case demonstrates the patience and competence necessary to assure the future viability of the Randolph-Sheppard program. In this instance a successful result has been achieved by means of a true partnership of the state of Minnesota Department of Jobs and Training, Dennis Groshel, and the National Federation of the Blind. We followed every step required by the law without trying to cut corners. We maintained a constant and firm position. Everyone's interests were represented, and the result is that we won.
Opportunities for blind vendors at as many as 170 additional federal sites could eventually be opened as a result of this case and similar ones which may follow. Already the state licensing agency in Maryland is proceeding with an arbitration to secure a vending facility site at a brand new veterans medical center in downtown Baltimore. As in Minnesota, we are helping in this action. The future victories outside the states in the Eighth Circuit will not necessarily come easily or quickly, but we are now well on the way. This would not be the case without the National Federation of the Blind and the excellent cooperation of officials in the state of Minnesota. There is a lesson here which the blind have known for a long time and the agencies are beginning to learn. Hats off to Minnesota officials and the others who will follow.
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If you or a friend would like to remember the National Federation of the Blind in your will, you can do so by employing the following language:
"I give, devise, and bequeath unto National Federation of the Blind, 1800 Johnson Street, Baltimore, Maryland 21230, a District of Columbia nonprofit corporation, the sum of $_____ (or "_____ percent of my net estate" or "The following stocks and bonds: _____") to be used for its worthy purposes on behalf of blind persons."
[PHOTO: Mr. Maurer stands at the podium with a one hundred dollar bill in his hand. CAPTION: President Maurer prepares to award the opening door prize at the 1993 Convention of the National Federation of the Blind.]
WHO WANTS BRAILLE ON THE MONEY?
by Marc Maurer
Recently I learned that the Department of the Treasury was being asked to consider alterations in the currency to accommodate the blind. This is, of course, not a new suggestion. It has been knocking around for decades. Nobody has ever regarded it as a top priority, and most of the people who have ever thought about it have dismissed it as both impractical and undesirable. However, the Department of the Treasury is presently reviewing proposed changes in the currency because modern technology has made it easier to counterfeit our money. Inasmuch as the currency is being redesigned anyway, goes the argument, we might as well make it accessible to the blind. With this as background, I was asked to write a statement about the need for Braille money which could appear in The Numismatist magazine. (A numismatist is a person who collects rare coins and other unusual money.) Space for the article was limited to three hundred words. This is what I sent:
Let Us Earn It: Money
by Marc Maurer, President
National Federation of the Blind
I have been asked to comment on the question, "Do blind people want Braille money?" Those blind people who have thought seriously about the question believe that Braille money would probably do more harm than good.
Would Braille money ever be useful? Occasionally, yes. However, there are many other things that would be far more useful. It would be helpful for trousers, shirts, and socks to bear some tactile mark to identify the color of the garment. It would sometimes be helpful to a blind cook for soup cans to be labeled in Braille. Each of these alterations would be of minute benefit to the blind; however, the trouble to society of making the changes outweighs any slight advantage.
There are more significant problems to be faced. Should schoolbooks be made available in Braille? This is not only helpful but absolutely vital if blind people are to gain independence and make substantial contributions to our society.
Part of the disadvantage of producing Braille money is the negative impression which will result. Having Braille on the money suggests that blind people are not able to manage in the world without all kinds of special adaptations. This is not the case. In fact, the question of real importance to the blind is not how to identify the money but how to get it in the first place.
Braille money implies that blind people cannot deal with the
world as it is. This implication suggests that alterations must be made in everything
to accommodate the blind. Those who take this wrongheaded notion seriously will
probably not be willing to hire the blind. Therefore, it may be that the decision
to print Braille money will contribute to unemployment for blind workers. The
message to be sent is that the ordinary blind person can compete on terms of
equality in the ordinary place of business with the ordinary sighted person.
The members of the National Federation of the Blind (over 50,000 in 1994) can
testify that our experience shows this to be true.
After this opinion had been reprinted in The Numismatist magazine, Mr. Arnoldo Efron, Director of the Monetary Research Institute in Houston, Texas, responded to the editor of The Numismatist as follows:
Monetary Research Institute
March 12, 1994
Colorado Springs, CO
Dear Sir: I would like to comment on the statements of Marc Maurer, president of the National Federation of the Blind, about Braille currency in the March 1994 edition of The Numismatist, page 324.
As far as I can remember, there is no currency anywhere with Braille inscriptions. What does exist is currency with special marks to assist the blind to recognize different denominations. These marks are raised dots of different shapes for each value, or different number of similar dots in each denomination. Incidentally these marks are very helpful to detect counterfeits, because they are impossible to replicate without very sophisticated equipment, which is not easily available.
A quick look at the "MRI Bankers' Guide to Foreign Currency," which we publish, shows that at least thirty-two nations use these marks. Others, like banks issuing notes in the British Isles, have no special need, because their notes are of different sizes for each value.
That there are "more important problems to be faced" does not wash as a plausible argument against adding identifying marks to our currency. The cost is minimal and will certainly not siphon resources from other programs designed to aid the blind. I cannot imagine that employment of the blind may be affected by the addition of identifying marks in currency.
Very truly yours,
Arnoldo Efron, Director
It seemed to me that Mr. Efron was in no position to interpret the needs of the blind for us. We have had a long history of having other people tell us what we want. Consequently I responded with this letter:
March 29, 1994
Mr. Arnoldo Efron, Director
Monetary Research Institute
Dear Mr. Efron:
I have received the copy of the letter to the editor of The Numismatist magazine dated March 12, 1994, which you sent to me. I regret that you have apparently misunderstood the position of the National Federation of the Blind.
If doing a thing is a bad idea and if doing it will cost money, to insist that it be done will be wasteful. We believe that wasting money is not productive. We believe this is so even if the amount wasted is not large. Blind people do not need modified (Braille) money, and to say that it would be helpful to the blind to produce Braille money is incorrect.
The major problem of blindness is the misunderstanding which exists about the capacity of blind people. Contrary to the widely-held belief, blind people can, with proper training and opportunity, participate in virtually any activity of life along with their sighted neighbors. The ordinary blind person can do the ordinary job in the ordinary place of business, and do it competitively.
There are many barriers to the blind person who is seeking to gain the training and the opportunity to participate fully in society. Most of these barriers involve misunderstandings of blindness and blind people. Often technical schools will not admit blind students to study mechanics, welding, refrigeration, and similar trades. Employers sometimes refuse to hire those blind people who find a way to get such technical training. All too often the reason for the refusal is the belief that the blind must be coddled and assisted at virtually every turn. This belief is false, but it is widely held, nonetheless.
This brings me to the proposal presently being made that money be altered to accommodate the blind. I think this is a mistake. I do so because it would serve as a constant reinforcement of the false idea that blind people cannot compete in the ordinary world with everybody else. In almost every pocket, in cash registers, in bank vaults, in dresser drawers, and under the mattresses there would be this silent but ubiquitous reminder that changes are required in the world to accommodate the disadvantage caused by blindness. Because changes in the currency are not needed to make it handleable by the blind and because such changes would reinforce the false notion that the blind are not capable of managing transactions involving currency, altering the money to suit blind people would be a disadvantage.
Both in the United States and in Canada, machines to identify the denomination of bills have been developed. Although these money identifiers have been available for a number of years, very few people have purchased them. I believe that they are not in wide demand because most blind people do not feel that the need for a money identifier is great enough to justify the cost. The four money identifiers on the market range in price from about $300 to about $650. As I have said, no change in the form of the currency is needed by blind people. But if some way of identifying the denominations of currency were really necessary, it would probably be cheaper to provide each blind person with a money-identifying machine than it would be to alter the form of currency for the entire nation.
Let me clear up what appears to be a conflict between your correspondence and mine. The term that I have used in this letter, "Braille money," does not mean bills with Braille symbols on them. It does mean that the money has been modified with raised characters to make it easily identifiable by blind people. In your letter to the Editor of The Numismatist you say that there is no Braille money circulating in the world. Some currencies that are now circulating contain raised symbols. These currencies with raised markings are frequently referred to as Braille money.
I would add one final point. The blind of the United States do not object to bills of different sizes or to bills with raised markings if it has been determined by the Department of the Treasury that this will be beneficial for the country as a whole. Coins are already of different sizes, and they have identifiable tactile markings. However, we do object to the creation of a currency which has been modified specifically to accommodate the blind. If it is a good idea for the country to have a currency which consists of bills of various sizes or which contains tactile markings for the purpose of preventing counterfeiting, the blind will be happy to use it. In fact, we will use whatever currency is developed. However, we strongly object to having a specialized currency developed in our name, which is circulated for the ostensible purpose of helping us because of our "special needs." We do not wish to have you interpret our needs for us. We are perfectly able to articulate our needs for ourselves.
Blind people are competent to handle the currency in circulation as it now exists. For you and others to suggest that changes in the currency are necessary to meet a need which you believe that blind people have implies that we cannot handle the currency which is presently being used. This assertion is simply not the case.
Very truly yours,
Marc Maurer, President
National Federation of the Blind
cc:The Editor, The Numismatist
Mr. Peter H. Daly, Director
Bureau of Engraving and Printing
Department of the Treasury
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WAGE PROTECTION FOR BLIND WORKERS: THE LEGISLATIVE STRUGGLE BEGINS AGAIN
by Barbara Pierce
On Wednesday, July 7, the delegates to the 1993 Convention of the National Federation of the Blind turned their attention to the problem of minimum wage protection for blind sheltered shop employees. Several shop officials told the audience why their management teams had decided to begin paying the minimum wage to blind workers and described the positive results the decision had brought about. Donald Elisburg, a labor lawyer who has successfully worked with the Federation on two cases to represent blind workers who had been deprived of their rights said plainly that, as it is now structured, the Department of Labor's Wage and Hour Division, which he himself oversaw, is incapable of administering the Fair Labor Standards Act fairly for the workers. Finally, Congressman Austin Murphy, chairman of the Subcommittee on Labor Standards, Occupational Health and Safety of the Committee on Education and Labor, assured delegates that the time had come to do something about this problem and that he was prepared to have hearings conducted on the matter before his subcommittee. These presentations appeared in the December, 1993, issue of the Braille Monitor.
At this year's Washington Seminar one of the issues discussed with Senators, Members of the House, and staff people was the possibility of having legislation introduced that would eliminate blindness as a disability justifying the Department of Labor (DOL) in issuing a certificate of exemption from paying the minimum wage to the worker. We were not arguing that no blind sheltered shop worker should receive less than the minimum wage; there are undoubtedly blind workers whose other disabilities prevent them from working at competitive rates. But the data we have gathered clearly demonstrates that blindness in and of itself does not prevent a worker from producing at competitive rates.
Several Members of the House have expressed interest in introducing such legislation, and at this writing (in late March) one bill, H.R. 3966, has already been introduced by Congressman James Traficant of Ohio, and other bills are being considered. On March 16, 1994, Congressman Austin Murphy made good his promise to the organized blind when the Subcommittee on Labor Standards, Occupational Health and Safety conducted a hearing on H.R. 3966. Four people testified: James Gashel, Director of Governmental Affairs of the National Federation of the Blind; Colleen Haslam, an employee at Utah Industries for the Blind; Donald Elisburg, an attorney specializing in labor law and Assistant Secretary of Labor for Employment Standards in the Carter Administration; and Patricia Beattie, Director of Legislative Affairs for National Industries for the Blind, the not-for-profit organization of sheltered workshops for the blind that parcels out federal contracts to its members and takes a percentage off the top for the service. Mr. Gashel laid out the case for paying blind workers at least the minimum wage. Ms. Haslam described her personal experience in working competitively for much less than the minimum wage. Mr. Elisburg explained why the current system is not working and cannot be made to work fairly for workers. And finally Ms. Beattie argued the National Industries for the Blind position. Unfortunately for the impact of her remarks, her arguments had already been refuted before she made her presentation. What follows are the texts of the comments made on March 16.
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[PHOTO: James Gashel stands at podium. CAPTION: James Gashel]
TESTIMONY OF THE NATIONAL FEDERATION OF THE BLIND
by James Gashel
March 16, 1994
Mr. Chairman, my name is James Gashel. I am the Director of Governmental Affairs for the National Federation of the Blind. My address is 1800 Johnson Street, Baltimore, Maryland 21230; telephone (410) 659-9314. I appreciate the opportunity to testify this morning on the subminimum wage policy of the Fair Labor Standards Act as it applies to blind or visually impaired workers. No group of employees in American industry deserves your attention more.
The National Federation of the Blind was founded in 1940 on the principles of security, equality, and opportunity for all blind people. The Federation has been organized to serve as a vehicle of self-expression and collective action by the blind. All of our leaders and the vast majority of our members are blind. Blind people join the National Federation through local chapters and state affiliates located in all fifty states, the District of Columbia, and Puerto Rico. There are local chapters of the Federation in most sizable population areas in the United States.
This morning you are examining the application of section 14(c) of the Fair Labor Standards Act to blind employees, many of whom are among the broadly based membership of the National Federation of the Blind. We represent the collective voice of these workers in asking Congress to amend the law so that impaired vision or blindness cannot be used as the basis for paying anyone below the federal minimum wage. Mr. Chairman, it is our considered opinion that the present policy of section 14(c) is wrong because it does not result in fairly compensating blind people for the work which they perform. In the testimony which follows I will explain why this is so.
First I will provide some background data which should be helpful in considering the impact and advisability of a policy change. Any employer can potentially be exempted from paying the minimum wage in hiring disabled or blind workers. The fact is, however, that industries which have often been referred to as "sheltered workshops" are essentially the only employers who use the subminimum wage scheme. This is certainly true in the case of blind people. The National Federation of the Blind is unaware of a work situation in competitive industry where an employee who is blind is being paid anything less than the minimum wage.
As a general proposition employers in the open market have accepted the minimum wage as a cost of doing business. Most companies can readily see that operating under a subminimum wage system is false economy. The cost of administering a piece-rate system merely to justify paying one or a handful of employees below the minimum wage would almost certainly be greater than simply paying them the difference between their so-called earned wage and the minimum. Besides, most employers would rather pay the minimum wage than to risk the possibility of adverse publicity or having charges brought against them under the Americans with Disabilities Act of 1990. It is also a fact that most employers do not want to underpay blind people just to save what would amount to pocket change as a percentage of their total labor costs.
We can assume, therefore, that sheltered workshops are the sole beneficiaries of the present subminimum wage policy. The workshops that employ blind people are affiliated in an umbrella group known as National Industries for the Blind (NIB). There are roughly eighty NIB affiliated agencies in the U.S. The blind work force is slightly in excess of 6,000. Most of these individuals are assigned to perform direct labor tasks. Their average wage is approximately $4.97 an hour. It is estimated that sixty-seven percent of these workers are already paid at least the minimum wage or higher, leaving about 2,000 (or thirty-three percent) who are not.
As many as twenty-three NIB affiliates have abandoned the subminimum wage policy altogether. The list of those paying at least the minimum wage and higher includes the Columbia Lighthouse for the Blind in Washington, D.C.; Blind Industries and Services of Maryland; all industries for the blind (both public and private) in the state of Kansas; the Chicago Lighthouse for the Blind; the Lighthouse for the Blind of Houston; New Mexico Industries for the Blind; and several more. At least as far as wages are concerned, blind people and sighted people work in these facilities on a level playing field. All of the above mentioned agencies once paid subminimum wages but no longer do so as a matter of policy.
The question is whether Congress should put an end to paying blind workers subminimum wages in this industry. We answer that question, Mr. Chairman, with a resounding "yes." The practice should not be continued merely because it has been the way of doing business in these workshops for more than fifty years. On its face, Section 14(c) appears to be quite simple and arguably quite fair, but both the simplicity and the fairness are deceptive. Workers are supposed to be paid on the basis of productivity. That may be hard to quarrel with in the abstract, but the factory floor is not abstract; it is the real world.
If the policy of Section 14(c) is really as sound as its proponents assert, then the standard--productivity-based pay with no actual floor--should be good enough for all American workers. The fact is that no class of workers, other than those we are discussing here today, is subject to such a rigorous and in fact costly evaluation of their work moment by moment, day in and day out. I submit, Mr. Chairman, that if productivity-based, piece- rate pay were the industry standard and there were in fact no floor, the same sighted employees who are now paid above the minimum wage would quickly become subminimum wage employees in many if not most instances.
I last appeared before this subcommittee in 1985 when a bill to streamline the process for issuing subminimum wage certificates was being considered. You expressed concern that the bill, a version of which was enacted a year later, could lead to wage exploitation. The Department of Labor witness testified that any wage above zero would be approved under the bill. When that measure became law, you agreed with us and insisted upon certain procedural safeguards. I am here to tell you that the safeguards are not working.
Our experience with the law as amended in 1986 demonstrates that your cautionary fears were well-founded. Those who are required to comply with the law by fairly determining wages are also empowered to gather all of the facts and make all of the decisions which end up justifying their determinations. The blind workers have absolutely no say in the matter. They can challenge the subminimum wage in a hearing, but they are almost certain to lose hands down if the documentation requirements have been met. We have prevailed in two substantial cases, but only because of faulty documentation. The bias of the law, which gives a nod to management at every turn, ties our hands in obtaining truly fair treatment for blind workers.
As an alternative to the present law, we have proposed that blindness or impaired vision should not be used as the basis for authorizing a subminimum wage. Genuine work disabilities could be the basis, but blindness without an actual work disability should not be used. Congressman Traficant has proposed specific legislation in the form of H. R. 3966 for this purpose, entitled the "Blind Workers' Wage Equity Act." If enacted, Mr. Traficant's bill would not affect section 14(c) in any way other than to clarify that impaired vision or blindness could not be used to authorize subminimum wages. The terms "impaired vision" and "blindness" are defined in his bill.
You should expect that this bill will attract its share of opponents as well as proponents. Here are some of the questions which will most certainly arise. A response is provided to each. The points of contention are strikingly similar to the issues debated in raising the minimum wage in general. Those who favor the change tend to understand these issues from the working person's point of view. Those who oppose the change tend to believe that management will be fair and can best determine pay rates.
QUESTION: Will blind people lose their jobs?
ANSWER: Job loss because of a minimum wage requirement is not likely. It can generally be said that the agencies which pay subminimum wages to blind people are a distinct group of workshops. As a condition for their receipt of government contracts, it is necessary that seventy-five percent of the direct labor must be performed by workers who are blind. Therefore, the retention of jobs is virtually guaranteed as long as contracts are available under the federal Javits-Wagner-O'Day Act and state purchasing laws of a similar nature.
QUESTION: If the subminimum wage is based on productivity, is there really a pay inequity?
ANSWER: The figures tell the story. During fiscal year 1992--the latest year for which figures are published--gross sales from industries affiliated with NIB were $302.1 million. Wages and fringe benefits were about $49 million or sixteen percent of gross sales. But an examination of labor statistics would show that labor costs as a percentage of gross sales in competitive industries comparable to the NIB shops normally exceed twenty percent and may often approach thirty percent. Therefore, it is clear that blind workers are not receiving their fair share of the proceeds resulting from their labor.
QUESTION: Is it possible to develop a subminimum wage policy which would treat blind workers fairly?
ANSWER: As long as employers control factors such as work flow, productivity measures, production methods, prevailing wage determinations, commensurate wages, and the necessary justifications involved, the subminimum wage pay scheme will never be fair to blind people. It would not be practical to have an outside entity such as the Department of Labor assigned to administer or oversee subminimum wage pay rates at each work site. Besides, who would foot the bill for such a plan? Under the circumstances, workers who are particularly productive, such as the blind as a group, should be excluded from subminimum wages altogether. This is the only truly fair option available.
QUESTION: Can workshops afford the difference between the subminimum wages currently paid and the guarantee of no lower than the minimum wage for blind workers?
ANSWER: Workshops can certainly afford to pay higher wages if faced with an outside mandate to do so. Those that have gone to a minimum wage guarantee voluntarily have demonstrated that cost need not be an issue. The belief that the cost is prohibitive ignores the expense of justifying every worker's productivity and pay rate as management is supposed to do under the present law. Given the size of most workshops in the NIB system and the existing pay rates already in effect, additional labor costs resulting from the minimum wage would likely run to an average of around $30,000 per plant per year. Most of that cost would be offset by scrapping the administrative burden in determining the productivity of each worker, piece rates for each job, prevailing wages for each job, and the correct commensurate wage to be paid in each case.
Most workshops are not on the verge of financial collapse. They are units of larger agencies. Unlike businesses of comparable size and scope they do not pay taxes, and they have a variety of funding sources beyond the revenue generated from production. Revenue sources include donations from civic organizations and the public, fees for training and evaluation services paid to workshops by other public and private agencies, facilities and staffing grants, block-grant funding for workshops provided by state agencies, and direct wage subsidy appropriations granted under state law in some instances. These revenue sources are not available to private businesses, which are also required to pay higher wages.
QUESTION: Will a disincentive result if less productive and more productive workers are paid comparable wages?
ANSWER: The subminimum wage is the greatest disincentive of all. Workers know when their labor is not valued. They tend to view the minimum wage as a benchmark. Imagine the dispirited feeling that can result from working day after day, year after year, only to find that even the minimum wage is an elusive goal. This is not an uncommon experience. Now compare that situation with the pride which workers share when management declares that everyone, blind and sighted alike, will be paid at least the minimum wage. It is often reported that productivity dramatically increases when such actions are taken. The fact is that most employees are not cheap-minded or selfish. They view the minimum wage as a form of base pay to which everyone is entitled by virtue of working.
QUESTION: Will the minimum wage interfere with training and rehabilitation goals of sheltered workshops?
ANSWER: Training and rehabilitation may be stated goals of workshops, but production motives predominate. The National Labor Relations Board (NLRB) has consistently ruled since 1976 that workshops in the NIB system are principally driven by business motives. Therefore, the Board has consistently taken jurisdiction over workshops in this industry. The courts have upheld the Board in the cases presented. Besides, accomplishment of training goals is not necessarily impaired by adopting more acceptable, standard pay practices. Workshops must come to understand that, when they are conducting themselves as factories--when they are actually producing goods for sale in commerce--their workers must be paid for their labor. Rehabilitation does not justify exploitation and should not be used to do so.
QUESTION: Will blind workers lose income-conditional benefits from Social Security (including medical benefits) if they are paid at least the minimum wage?
ANSWER: No. It is just that simple. Income guidelines for both the Social Security Disability Insurance and the Supplemental Security Income programs are high enough that payment at the level of the minimum wage, working full-time, does not prevent eligibility for either the cash or the medical assistance benefits involved. Besides, keeping wages low so employees can qualify for public benefits does not help the workers; it helps management's bottom line. Let us not be fooled.
QUESTION: Why should blind people be singled out for exclusion from the subminimum wage policy?
ANSWER: As a group blind people have already distinguished themselves by demonstrating comparatively high productivity. Even under the present law average pay for blind workers in the NIB system exceeds the minimum wage. It should now be recognized that management, too, bears a responsibility for helping production employees to maximize their productive capacities. Establishing the minimum wage as a floor would be a realistic way of doing this. If managers were required to pay at least a certain wage rather than letting compensation decrease with lower productivity, there would be an incentive for them to get as much work as possible out of the work force. This is true in private industry, and the same concept would work just as well for blind people in sheltered workshops.
Mr. Chairman, these are the major questions. It should be emphasized that the minimum wage is not a panacea. It will certainly improve blind workers' wages, but even then they will still lag far behind industry standards. For example, the average hourly wage paid to blind people in the NIB system was $4.97 during fiscal year 1992. But labor wages in light manufacturing nationwide are reported to average close to $9.50 an hour (according to the Monthly Labor Review, published in January, 1994). There is no question that moving to the minimum wage will help to address this imbalance but certainly not eliminate it. Other solutions, such as increased efforts to establish labor union representation for blind workers, will have to be emphasized along with the minimum wage.
The hearing you are holding today is a good new beginning in the examination by the Congress of this particular subminimum wage issue. Since 1938, Mr. Chairman, we have come a long way in our understanding of equitable employment policies affecting persons with disabilities. It is truly shocking that in section 14(c) of the Fair Labor Standards Act we have this remaining vestige of the old employment policy still hanging around.
I will leave you with this thought, Mr. Chairman: in the final analysis one must decide what position to adopt on this issue--whether to favor a change or not--by applying the same basic principles that would be used if the workers involved were not blind. Why is it not reasonable for the Congress to determine a minimum standard of pay for blind people in sheltered workshops? The productivity and piece-rate scheme is not a standard. It is deceptive in its application and unfair in its impact. Blind people deserve more. We must see that they have more. On behalf of the National Federation of the Blind, I thank you.
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[PHOTO: Portrait. CAPTION: Colleen Haslam]
A SHELTERED WORKSHOP WORKER SPEAKS
by Colleen Haslam
From the Editor: Colleen Haslam is an employee at Utah Industries for the Blind in Salt Lake. This is what she had to say:
Mr. Chairman, my name is Colleen Haslam, and my address is 1041 Yale Avenue, Salt Lake City, Utah 84105.
I want to start off by thanking you, Mr. Chairman, and the committee for giving me the opportunity to testify before you today. I have come here to tell you a story of unfairness and inequality for blind industrial workers like myself. I want to tell you my own personal story of not being able to earn the minimum wage even after fourteen years of working for the Utah Industries for the Blind (UIB). As Chairperson of UIB's Workshop Employees Committee, I also represent the views of my fellow blind workers. The bottom line is that we must change the Fair Labor Standards Act so that blind workers like myself can be guaranteed the minimum wage. The current system is both unmanageable and very unfair to blind workshop employees.
I began working for UIB in October of 1980. At that time I disassembled telephones so that the parts could be used for other purposes. For that work, I received an hourly pay of $2.10 at a time when the minimum wage stood at $3.35 an hour.
Then I began a job in the front office. There I handled a variety of general office duties. I waited on customers, answered phones, handled accounts receivable, ordered supplies, and did whatever else was necessary. For my labor I received $3.15 an hour for five years. In case you are keeping track, a wage of $3.15 an hour translates into a whopping $6,552.00 a year.
It is now my understanding that the law requires the workshop to determine the prevailing wage in the community for the job in question. Using the prevailing wage, the shop can then set pay rates based on a worker's productivity. In my case I am sure that the workshop never attempted to determine what general office workers received in Salt Lake City. More important, the workshop never informed me that I had a right to question the wage that they paid me, let alone understand the basis for it. I am also sure that the workshop did not inform any of the other workers of their rights under the law. These things are just not discussed by management. It is all very secretive.
In 1986 the workshop moved me to a new job. I began working on the sewing machine, sewing together laundry bags for the military. Over the years we have done other projects for the military. For example, we assembled the camouflage field pack covers for Desert Storm. When I started sewing, I felt like I was being thrown to the wolves. The workshop only gave me a minimal amount of training on the machine. Basically, I was told, "Here's the machine; here's the material; now get to work." Again, I only earned a base pay of $3.15 an hour for my work. Eight years later I was only earning $3.75 an hour before UIB shut down for reorganization early this year. Again, for those of you who are keeping track, $3.75 an hour translates into a princely yearly wage of $7,800.
At UIB we work on a piece-rate system. Therefore, it is possible to earn more than your base pay, but it is not very probable you will do so. For example, over the years the workshop has given me one task where I earned up to $6.43 an hour. This work, however, has always been very scarce. During an average year I would only receive about a week's worth of that high- paying work.
My pay and productivity are also greatly affected by the workshop's inefficiency. We are supposed to work as hard as we can in order to increase our productivity and thereby receive a higher wage, but there are often situations in which there is no work for us to do. When this happens, my productivity goes down the drain, and I lose money in the process. During an average week I would have up to four or five hours of downtime, time that I could have used to earn a higher wage. By not giving me much of the high-wage work and with all the downtime, it is no wonder I have never earned above $3.75 an hour as my base pay. You see, in order to raise your base pay, you would have to complete three straight months of work at the higher piece rate. With downtime and lack of profitable work, it was almost impossible to raise your base rate.
My fellow workshop employees have faced similar problems. At the time when we shut down early this year, there were a total of sixty-two employees working in the shop. Forty-seven of us were blind, and fifteen were sighted. By law all the sighted workers received at least the minimum wage. I know for a fact that the last two sighted workers we hired started at $5.00 an hour. Out of the forty-seven blind workers, only five received wages above the minimum. In fact, the blind workers generally started at a base pay of $1.71 an hour. On our wage scoreboard, a wage of $1.71 an hour equals $3,556.80 a year. How can anyone call this situation fair? I know of several cases where a blind worker and a sighted worker were doing the same job. The sighted workers received at least the minimum wage, but the blind workers earned subminimum wages. This was true even though the blind workers in question were more productive.
I have mentioned the reorganization of our workshop. Part of this has involved bringing in new management. In the process it was discovered that pay rates for blind workers had not been determined as required by law. We were being underpaid, and the situation had gone on for many years. Unfortunately, the law has a two-year limit on repayment on past-due wages. Even so, the UIB blind workers received a total of $55,000 in back pay. Not all of us have received this compensation, but I do not understand why.
One reason might be that some of the UIB workers had been hired at pay rates below the $1.71 an hour starting base pay, which I mentioned. Many of these workers started at eighty-five cents an hour. These are the ones who are now receiving the past- due compensation. I do not know if they are being compensated for the difference between eighty-five cents an hour and the minimum wage or if the compensation is still based on a subminimum wage. I suspect it is a subminimum wage. Workers are not told the facts. If the two-year limit did not apply, it is clear to me that the UIB blind workers would be owed hundreds of thousands of dollars not paid to them.
It is my understanding that sheltered workshops are also supposed to provide rehabilitation services. Theoretically sheltered workshops are supposed to be a source of temporary employment, but at the same time these shops should be giving us training and teaching us the skills necessary to get a job in the competitive job market. All of us in the workshop would jump at such an opportunity. The fact is, however, that during my fourteen years at the workshop there have been no training opportunities whatsoever that would have helped me or any other blind worker secure competitive employment. For fourteen years I have been working at subminimum wages with virtually no opportunity to move into the regular job market.
You might ask me why I put up with it all, and that is a fair question. When I became legally blind in 1979, I wanted to get back to work. Whenever I went for interviews, the employers would tell me that they thought I had a good resume and that I had good experience, but once they found out that I was blind, they wanted nothing more to do with me. So for me and the five thousand other blind sheltered workshop employees across this country these industries are our only opportunity for employment. Even though the workshop is supposed to help us get better jobs by providing training to us, I have never seen any evidence of such training at UIB.
The best evidence that the current system is unfair and not proper for our times is the fact that the Utah Industries for the Blind has decided to make a major change in policy. When the workshop completely reopens later this month, every blind employee will receive at least the minimum wage. I want to applaud UIB's new management for doing the right thing by paying every blind worker at least the minimum wage. It is my understanding that the workshop management believes that they will actually save money and make greater profits by adopting the minimum wage.
Before we reorganized, the workshop had at least one full- time person managing the piece-rate system. Management was spending thousands upon thousands of dollars a year just to determine our productivity. Now they will not have to waste so much money each year trying to figure out whether a given blind worker should be paid five cents an hour more or five cents an hour less. This is nickel-and-dime management, and it just doesn't make any sense. The full-time person who spent all of his time managing the piece-rate system will now concentrate his efforts on marketing our products. This approach makes much more sense to me. I think that the workshop will also find that our productivity will increase. It is hard to get out of bed each morning knowing that your fellow workers who are sighted will make at least $4.25 an hour and that blind workers will earn only $1.71 an hour. Now at least the playing field will be more level.
Almost four years ago Congress passed the Americans With Disabilities Act (ADA). Now I may not be a lawyer, but I understand enough to know that the ADA guarantees individuals with disabilities, like myself, equality in our society. All I know is that the situation in Utah has not been equal for blind workers. Even though our situation is changing, thousands of blind workers across the country still face these unfair conditions. The old system is both unmanageable and incredibly unfair; it is time for it to go. The ADA may say that I have equal rights, but for those of us who labor at subminimum wages it sure doesn't seem like we have equality. By passing the Blind Workers' Wage Equity Act, we can go a long way in making conditions better for blind workers.
True wage equity would give blind workers the opportunity to earn a decent wage. It would also recognize that our work is worth just as much as any sighted person's work. We have demonstrated over and over again that blindness alone does not affect our productivity. Lack of training, an unmanageable system, and unfair wages do. Please pass the Blind Workers' Wage Equity Act so that blind employees across this country will come one step closer to true equality in our society. I want to conclude by again thanking you for the opportunity to testify today.
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[PHOTO: Portrait. CAPTION: Donald Elisburg]
TESTIMONY OF A LABOR LAWYER
by Donald Elisburg
From the Editor: In the Carter Administration Donald Elisburg served as Assistant Secretary of Labor for Employment Standards. In that capacity he oversaw the Wage and Hour Division, which enforced the provisions of the Fair Labor Standards Act. In recent years he has worked with the National Federation of the Blind on several important cases concerning the rights of blind sheltered shop workers. Here is what he had to say:
Dear Chairman and Members of the Subcommittee:
My name is Donald Elisburg, and I am an attorney in Washington, D.C. I have more than thirty years' experience with the Fair Labor Standards Act (FLSA) as a Department of Labor attorney, Senate staff member, Assistant Secretary of Labor for Employment Standards, and private practitioner. While Assistant Secretary, I also served for extensive periods of time as acting wage and hour administrator. During all of this period, I have had extensive experience with Section 14(c) of the FLSA, relating to the special provisions for sheltered workshops.
Other witnesses in this hearing from the National Federation of the Blind are presenting testimony concerning the basic economic and moral problems associated with the continued existence of sheltered workshop wage exceptions for blind workers.
The purpose of my testimony today is to express my personal views to the Committee that the present system for challenging workshop work abuses afforded workers through Section 14(c)(5), as amended in 1986, is a study in futility. I base my remarks on my experiences as an attorney for a number of sheltered workshop employees in one action brought under Section 14(c)(5) in Lubbock, Texas, in 1988 and in another action brought in Buffalo, New York, in 1991.
The simple fact is that Congress enacted provisions designed to help these workers pursue wage violation claims and, for reasons I am about to discuss, these provisions are not only not helpful, they are useless.
First, Section 14(c)(5)(A) of the Act requires that the process be initiated by petitioning the Secretary of Labor to review the special minimum wage. The petition must be filed by the employee, the employee's parent, or guardian. This lack of class action is a real showstopper. Basically the individual workers who are required to sign a complaint are put at tremendous risk of conflict with their employers under difficult employment circumstances. For example, many of these workers receive transportation from the workshop or have other benefits that are dependent on the goodwill of the employer. The Department of Labor's ability to protect these workers from reprisal is extremely limited, particularly when the retaliation is in the form of poor assignments or other subtle actions. If the Department of Labor were to proceed on behalf of these workers, the matter would be treated as a class action.
Section 14(c)(5)(B) of the statute further requires that Administrative Law Judge (ALJ) hearings be held within a thirty- day timeframe. The notion that an individual can file a claim with the Secretary of Labor and that such a claim will be acted upon promptly is an illusion. It takes at least a month to get the case calendared with a judge, and then it can be months before a hearing can be properly set. This is particularly true if the proceeding will involve documents, discovery, and/or witnesses. The notion that the petitioners and the employers will show up at a hearing with boxes of records and experts and the judge will sort it out like a stamp collection within thirty days is not the real world. In point of fact, the Department of Labor administrative law system has detailed rules on discovery, pre- trial conferences, and other procedural matters. Unfortunately the commensurate wage issues cannot be handled like traffic court with simple testimony. Using my cases as examples, the Texas case took fifteen months to bring to closure, and the New York case took nine months.
Section 14(c)(5)(B) of the Act also places the burden upon the sheltered workshop to come forward and establish that it has done its studies properly and that it can defend the exemption from the minimum wage afforded under Section 14(c). There are several major problems with this notion. The principal problem we found in the two cases I handled was that the sheltered workshop personnel and management had little understanding of the rules; the records they had were virtually non-existent to support the exemption; and they had little economic justification for the wage scales they set. To make matters worse, it was also clear during the litigation of these cases that the Administrative Law Judges did not fully understand or accept the notion that the employer had the burden of establishing the data to defend the exemptions claimed. Such confusion would impact on the judge's decision based on Section (5)(D)(i) and (ii) concerning productivity.
Moreover, the role of the Department of Labor as the ALJ's advisor on the issues presented in (5)(C) and (D) is also not clear. In both of my cases it became necessary for me to provide the ALJ with extensive evidence and expert testimony that reflected the prevailing wage and job data for the area. It also became my responsibility to provide the ALJ with a separate analysis of the time and motion studies and other information upon which each worker's wages were allegedly based in order to prosecute the claims properly on behalf of these workers. The Department of Labor's role as advisor to the ALJ was not comfortable to me or, probably, to the Department. It also was not consistent. In the preliminary hearing on our Buffalo case the Department was only "present."
In a workshop that does not have adequate record-keeping arrangements or properly trained assistants or supervisors, it is extremely difficult to determine actual production. In the absence of adequate records, the worker's claim must be established by that worker's testimony of hours worked and wages paid on a piecework basis. The fact is that these workers have almost no way of keeping separate counts of pieces produced or of hours worked and are almost completely dependent upon the assistance of sighted workers and supervisors.
In short, as you review each element of the claims process, you will see the impossible hurdles that are placed before each worker if he or she wishes to pursue a wage violation claim.
Alternatively, in one of the cases we determined that the most effective way to deal with the violations was to file a complaint with the U.S. Department of Labor for an investigation. That too was a Catch-22, because at the end of that investigation it was still extremely difficult to get the Department of Labor's investigation results before the ALJ, even though they reflected massive violations.
The situation with the two cases I handled was further complicated when in the first case the workshop declared bankruptcy just before the hearing under Section 14(B), and in the second case the workshop announced its intention simply to go into another business after the proceeding. In the bankruptcy case only a desire on the part of several workshop board members to avoid further bad publicity led to a settlement of substantially less than the amounts due. We finally settled because, while substantially less than penalties found, the settled amount was also substantially more than these workers could have collected had the bankruptcy claims gone to trial. Bankruptcy laws do not protect workers beyond ninety days. In the second case the workers received substantial payments but were faced with a loss of jobs.
Let me also make another serious procedural point: it is simply not possible for individuals to pursue this type of economic claim without help. It is virtually impossible to proceed without the aid of an expert economist and experts in time and motion study and related issues. The Department of Labor does not provide the claimants with this level of help. The sheltered workshops, using my two cases as an example, don't have the data. The reality, therefore, is that the claimants have to resort to legal assistance with their wage violation claims.
This is complicated because the regulation states that Section 14(c)(5) makes no provision for attorney fees. What this means is that, as currently drafted, Congress has created a law that is not speedy, is extremely technical, permits below-minimum wages to be paid to people whose only disability is that they are blind, and insists that individuals pursue a claim on their own behalf and then must pay legal fees even if the employer is found to be at fault. Understand, I represented people who were improperly being permitted to be paid $2.05 per hour. In both of my cases violations were uncovered. Workers were being cheated. How in good conscience can we ask these workers also to foot the legal bill?
The main customer for products made at these workshops is the U.S. Government. In Texas it is the government of the United States that is paying $2.05 per hour to workers producing goods for the Department of Defense. It does not seem right that the military used materials made at a sheltered workshop during Operation Desert Storm that were produced by workers making $2.05 per hour. And it is particularly difficult to know that many of these workers had been earning three or four times that rate when they had employment in the aerospace industry or other manufacturing industries.
I do not believe that the government of the United States should be permitted to purchase goods produced by workers at a rate below the minimum wage. I particularly do not believe that such a program should be undertaken where it is clear that the majority of the workers who are blind could well work in other employment and for sure have every reason to be paid the minimum wage. And I firmly believe that it is not possible for the government to enforce the existing provisions of Section 14(c) relating to economic wage determinations and individual rate measurements so as to avoid substantial abuse.
I would like to make several other observations about the process. Early in my representation of the Lubbock workers, I sought help from the Committee for Purchase from the Blind. However, I found in my discussions little interest in dealing with the fundamental problems of low-wage workers in these workshops. It seemed to me that this Committee does not understand that its task is to protect workers. Instead it seemed to me that they are much more concerned about protecting the National Industries for the Blind or the federal agencies. I was also not very comforted by the National Industries for the Blind. They are billed as the experts in determining the commensurate wage system. My perception is that they see the workshop as their client, not the workers.
To summarize, I do not believe that the provisions of Section 14(c)(5) can be enforced by any agency, and certainly not by individual claimants forced to use a complex legal process without attorneys. To suggest that a worker earning $2.05 per hour can afford legal counsel is likewise ludicrous, and to suggest that organizations such as the National Federation of the Blind should continue to subsidize legal counsel in order to obtain wage benefits due workers at sheltered workshops is likewise unrealistic.
If these sheltered workshop wages are to be continued, I suggest at least the following provisions:
1. All workers shall be paid not less than the minimum wage.
2. If a worker is paid a prevailing wage, that wage should not go lower than the minimum.
3. Petitions for review for these proceedings should permit workers to bring a class action.
4. The rules of proceeding should consider the levels of proof that will be required. The role of the Wage and Hour Division should be clarified.
5. There should be provisions for attorneys' fees and costs since these workers simply cannot proceed on their own. This committee is to be commended for addressing this important issue. We have U.S. workers whom we thought we were protecting in the workplace, but the reality is that we have made matters worse for them. The time to correct the problem is now, and I would be happy to answer any questions that you may have.
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TESTIMONY BY NATIONAL INDUSTRIES FOR THE BLIND
by Patricia M. Beattie
From the Editor: Patricia Beattie is the Director of Legislative Affairs for the National Industries for the Blind. Here is her testimony:
Mr. Chairman, distinguished members of the Subcommittee, I am Patricia Beattie, Director of Legislative Affairs at National Industries for the Blind. This morning I have the privilege of representing both NIB and the General Council of Workshops for the Blind (GCWB).
NIB is designated by the Presidentially-appointed Committee for Purchase from People Who Are Blind or Severely Disabled as the central nonprofit agency to represent state and nonprofit agencies that participate in the program of the Javits-Wagner- O'Day Act. NIB is a 501(c)(3) organization which was incorporated in 1938. One of our primary responsibilities is to equitably distribute contracts from the federal government for products and services among qualified nonprofit agencies for the blind. Currently eighty-two agencies, which operate one hundred employment facilities, are associated with NIB.
The General Council is an unincorporated membership organization of those agencies which are associated with National Industries for the Blind. The General Council membership is extremely diverse. Some are primarily employment facilities, while others are providers of comprehensive services. Some of the services provided in addition to employment include:
Basic rehabilitation services
Work preparation services
Infant and parent training
Transportation for work and other purposes
Placement in the business sector, and
Independent living for older blind people.
My purpose here today is to discuss the impact of minimum wage requirements on people who are blind or visually impaired. As I do that, I ask that the Subcommittee keep in mind that it is estimated that 65 to 70 percent of all working-age blind people still do not have a job. Barriers to more employment include:
the Americans with Disabilities Act
Social Security disincentives
Lack of access to technology and personal assistance
And inadequate transportation.
Now let me directly address the issue before us today. NIB and the General Council share the concern of advocacy organizations such as the National Federation of the Blind and the American Council of the Blind. We believe, however, that the proposal before you will limit opportunities for people who are blind and will increase the unacceptably high unemployment rate.
It is interesting to note that in the past four years the number of people covered under section 14(c) has declined. In the NIB-associated agencies, the number of blind people paid wages below minimum has declined from 1,509 in 1990 to 1,388 in 1993.
It should be noted that of the 1,388 people paid less than the minimum in FY93, 897 had a documented disability in addition to blindness while others have a severe function limitation. These second disabilities include mental retardation, cerebral palsy, deafness, emotional difficulties, and others. Therefore, the people who earn below the minimum wage in the agencies associated with NIB typically have significant functional limitations in addition to blindness. We believe these are the people Congress primarily intended to protect from being closed out of the employment market should employers be required to pay the federal minimum wage without regard to productivity and functional limitations.
Also of significant importance is the impact that this proposed legislation would have upon the number of people who are employed in agencies not associated with NIB. In FY93 there were 1,093 blind people employed in NISH agencies. NISH is the central nonprofit agency for organizations that serve people with severe disabilities other than blindness. This number has been steadily increasing every year since this information has been available to us.
Let me summarize some critical data for FY93:
Out of 5,213 people 3,825 made above the minimum and
1,388 made below the minimum wage.
Roughly three out of four (73.4 percent) were paid above the minimum.
Current compliance responsibilities and activities are a critical part of this question.
Presently the Department of Labor is the federal government agency charged with enforcing the provisions of the Fair Labor Standards Act and its implementing regulations. National Industries for the Blind under the JWOD program is responsible for monitoring and inspecting its associated agencies. Presently, NIB's compliance department reviews each associated agency at least once every three years. A compliance review is typically performed over a three-to-four-day period and follows DOL procedures.
The major role played by NIB's compliance department is to educate, monitor, and assist its associated agencies to assure compliance with the appropriate regulations. Follow-up visits are performed when necessary or requested. However, the DOL is the Federal agency that is charged with enforcing the Fair Labor Standards Act and the provisions of 14(c).
Education and training for NIB-associated agencies concerning their regulatory responsibilities is provided yearly. Because particular emphasis is focused upon the FLSA and 14(c), representatives from the Department of Labor are invited to speak. During NIB compliance visits to agencies that pay some wages below the Federal minimum an in-depth review is conducted for their compliance with 14(c).
NIB and the General Council of Workshops for the Blind (GCWB) oppose the amendment to Section 14(c) of the Fair Labor Standards Act proposed in H.R. 3966. Current law does not allow payment of a sub-minimum wage solely on the basis of visual impairment or blindness. The current statute allows for sub- minimum wages only if it can be documented that the person is disabled for the work to be performed. The current statute also includes a process for appeal and hearing before a Federal Administrative Law Judge by an individual who believes his or her wages do not comply with the law.
The proposed amendment could jeopardize the jobs of 2,481 individuals who have other disabilities in addition to blindness or visual impairment. Of these blind employees 1,388 are in NIB- affiliated industries; an additional 1,093 workers who are blind are employed in facilities associated with NISH. Some might say that these individuals are disabled by conditions other than blindness--mental retardation, epilepsy, etc. The proposed amendment would exclude all employees with blindness, whether or not they have additional disabilities.
We are deeply concerned when proposals periodically arise to reduce employment opportunities and options for anyone who is blind or visually impaired. In this case the potential loss of employment opportunities is for that targeted group of blind individuals for whom facility-based employment is often the last resort. When non-disabled workers are laid off in the private sector, they have potential options for other employment. For blind individuals who find employment at sub-minimum wages an opportunity, there typically is no other option. We don't think that sound public policy would eliminate an option for a target population which otherwise may well be sitting at home.
We recommend that Congress:
Consider appropriating additional resources for the Department of Labor compliance function and maintain current provisions of 14(c).
Ensure that people who are blind have equal access to technology and personal assistance services, both of which are tied directly to employment.
Eliminate the employment disincentives inherent in the Social Security Disability Insurance and Supplemental Security Income Programs.
Preserve and enhance the employment opportunities for people who are blind or severely disabled available through the Javits-Wagner-O'Day Act as it streamlines federal procurement in response to the National Performance Review.
Increase such employment opportunities by strengthening the statutory language which encourages defense prime contractors to subcontract with qualified nonprofit agencies for the blind and severely disabled.
Thank you for your time and consideration of our concerns.
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[PHOTO: Portrait. CAPTION: Donovan Cooper]
FEDERATIONIST REACHES OUT
Donovan Cooper, who now lives in California, is a long-time member of the NFB. He practices his Federationism on a daily basis, which includes public education and distribution of Federation materials. Recently he has been particularly busy, with results that are an example and reminder to us all.
In a recent letter to Sharon Gold, President of the National Federation of the Blind of California, Mr. Cooper said:
March 3, 1994
Earlier this morning I sent you a copy of a letter written by the former Bankruptcy Court Clerk, Frank E. Goodroe. I feel really good about what he had to say, and I was wondering if you might not want to share this letter with others. Its not that I want to crow about my accomplishments. It's just that this letter provides evidence of what we can do if we use the Braille Monitor and our other NFB literature in productive ways. And you will notice in the letter how my employer points with pride to my activities in the National Federation of the Blind. Certainly with the general public we have earned ourselves a good reputation.
The January, 1994, issue of the Monitor was well-suited for the purpose of putting those of us who are employed in a better position with our supervisors; and I would hope that, by publishing the letter from Mr. Goodroe, we can stimulate others to put it to good use. I am most grateful for Dr. Jernigan's having chaired such a productive technology conference and for having published the best of the presentations in the Monitor.
Office of the Executive Officer
Clerk of Court
United States District Court
Los Angeles, California
March 2, 1994
Mr. Roy Carter
Administrative Office of the United States Courts
RE: Automation Equipment for the Blind
The enclosed magazine, titled Braille Monitor, is a publication of the National Federation of the Blind. A management analyst from my former staff at the Bankruptcy Court, Donovan Cooper, sent me a copy of the publication for future reference. The contents focus on the subject of twenty-first century technology for the blind. I thought you might wish to share this publication with appropriate members of your division staff that might be called upon at some future time to address hardware/technology issues for special needs court personnel.
Besides being a very talented statistician, Mr. Cooper is extraordinarily active in the blind community and knowledgeable of the issues challenging the non-sighted in the work force. Mr. Cooper would be an excellent court resource if the need arises for the AO.
Frank E. Goodroe
That is what Mr. Goodroe wrote, and it is clear that he was very well informed about Mr. Cooper's volunteer activities on behalf of the National Federation of the Blind. The following exchange of memos makes clear why it is that Donovan Cooper's work colleagues know about his NFB activities. Early this year all employees at the United States Bankruptcy Court in the Central District of California received a written warning that they could no longer solicit contributions from co-workers for their favorite charities unless they received special permission to do so. Here are the memo Mr. Cooper wrote seeking continued permission to educate and raise funds among his co-workers and the answer he received:
United States Bankruptcy Court
Central District of California
Office of the Clerk
February 4, 1994
Dave Grube, Chief Deputy of Administration
United States Bankruptcy Court
Central District of California
RE: Request for Exemption to Policy
Dear Mr. Grube:
I am in receipt of the memorandum from Mr. Goodroe, dated February 1, 1994, regarding sales of items on court property. The memo provided for an exemption to the general prohibition against such sales when the proceeds from the sales will go to a non- profit organization and when the employee involved submits a written request for the exemption containing certain information. This is such a request.
For more than twenty years I have been a member of the National Federation of the Blind. I am the current President of the San Fernando Valley Chapter and of the statewide Diabetics Chapter of the National Federation of the Blind of California. I am a member of the NFB of California state board. I am the former President of our national Diabetics Division. I am the current Vice President of the NFB Public Employees Division, and I either chair or serve on numerous committees. I regard fund-raising for the NFB as an important obligation; and, as a leader in the organized blind movement, I must set a good example for others.
Sometimes my fund-raising activities have involved people at the office, but I have always tried to keep these activities discreet and non-invasive, and they have never caused significant disruption to my work at the office or the work of others. When my co-workers have similar worthy objectives, I try to respond in kind.
For example, last fall the San Fernando Valley Chapter sold calendars displaying high-quality reproductions of works of art. I brought ten of these into the office and offered them to the RDI staff and to a few other friends who know of and support my activities in the National Federation of the Blind. The sales were conducted on a very informal basis. It is likely that my chapter will again have such calendars for sale in the fall of 1994, and I would like to repeat my offers to those who were receptive this last fall. There may be other fund-raising programs that I would like to bring to the office during the coming year, but in each instance I will ask for your permission before proceeding.
There is another NFB fund-raising activity in which I participate on an ongoing basis, but it does not involve sales. I chair the NFB of California Associates Committee, and I am a member of our national Associates Committee. While the proceeds from the sales mentioned above go to our local chapter, the funds raised through the Associates program go directly to our national headquarters. This is where most of the money raised by the NFB is spent and for good reason. Our national organization provides services that no local chapter or state affiliate could. The Associates program does not involve sales. Rather it is a program in which members like me ask supportive friends and relatives if they would like to become associates of the National Federation of the Blind and make annual contributions as such. A few co- workers have understood my commitment to the organized blind movement and have gladly become associates. I would like to continue to offer this opportunity to a few close co-workers. Again the offers would be infrequent and discreet.
Should you like to become an associate of the National Federation of the Blind, I have enclosed a copy of the form that must be completed and submitted with your donation. The completed form and your check in one of the indicated amounts can either be returned to me or mailed directly to the National Federation of the Blind, 1800 Johnson Street, Baltimore, MD 21230. I have also enclosed two publications that present evidence of the work of the NFB. The first of these is the 1993 Presidential Report, which was delivered last July at our National Convention, and the second is the Winter, 1994, edition of Voice of the Diabetic, published quarterly by the NFB Diabetics Division. This is a unique magazine in the field of diabetes because it concentrates on the complications of diabetes and how to live good lives despite these complications. Many of the articles are written by diabetics themselves. I have been a contributor. And, without the information I received through the NFB Diabetics Division, I would not have had a combination kidney-pancreas transplant or be actively working today. Whether you wish to contribute or not, I think you may find this material interesting reading. Thank you.
Management Analyst, RDI
February 10, 1994
From: David M. Grube, Chief
Deputy of Administration
Re: Exemption for Sales on Court Property
To: Donovan Cooper, Management Analyst
In response to your memo dated February 4, 1994, this memo is to approve your request for an exemption to the policy regarding sales on court property. The fund-raising activities described in your memo appear to be for a very worthwhile cause and do not appear to cause disruption to the work environment. Please proceed with these activities.
If you have any questions or require any additional information, please contact me at extension 4435.
cc: Mike Rotberg, Division Manager, RDI
. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
STAFF PROFILES: DONOVAN COOPER MANAGEMENT ANALYST, R.D.I.
The following article is reprinted from the Full Court Press, April 1994, a publication of the U.S. Bankruptcy Court Central District of California:
If you ever need to build a freeway, the Research, Development, and Information Division is the place to go to find assistance. You are probably asking yourself, "Who possesses these types of skills in the Court?" Well, it's our own Donovan Cooper.
Anyone who has ever worked with Donovan quickly realizes the breadth of knowledge that he brings to the Court; however, few probably know much of his background. Donovan spent his formative years in the Midwest. He was born and raised in the town of Red Oak, Iowa, a small farming community in western Iowa. Until he began high school, he lived on a farm with his family of two sisters and one brother. His family grew corn and soybeans and also raised dairy cattle on the farm. As a child he performed all the tasks around the farm that every farm child has performed, such as helping in the fields and caring for the animals.
Donovan graduated from high school in Council Bluffs, Iowa, but did not immediately begin his college work. For four years he worked as an engineering aide for the Iowa Highway Commission. The work was hard but never boring. Initially Donovan worked on a highway construction crew that was laying out the interstate highway system around Council Bluffs. It was during this period that he began to lose his vision due to juvenile onset diabetes. He transferred from the highway construction crews to an asphalt plant, where he performed quality control work.
Donovan has always had an interest in public affairs, and it was at this time that he decided to start college. He attended Drake University, from where he received his Bachelor of Arts with a double major in economics and public administration. After receiving his B.A., he continued in graduate school at Drake and received his masters in public administration.
Although he held a number of jobs after graduation, one which was particularly interesting was that of admissions market analyst for Drake University. In this position he conducted analyses of student and demographic information in order to provide the admissions officer for the university with recommendations about where to send recruiters. One result of his work was the recruiting of Saudi Arabian and Kuwaiti students into the university's pharmacy program.
Donovan moved to California and began his career with the Bankruptcy Court in 1982 as the first management analyst employed by the Court. Until the creation of the RDI section, he reported directly to the Clerk of Court. During his tenure with the Court Donovan has worked on numerous projects requiring study design, data collection, and statistical analysis of the data collected. He has conducted numerous studies including the Electronic Court Recording pilot project, and the incidence of unlawful detainer actions and bankruptcy mill involvement in filing petitions.
Besides his work with the Court, Donovan is heavily involved in the National Federation of the Blind (NFB). He is a former national president of the organization's Diabetic Division. At the present time he is the president of the San Fernando Valley Chapter of the NFB, President of the Diabetics Chapter of the NFB of California, and also a member of the board of directors of the NFB of California.
[PHOTO: Portrait. CAPTION: E.U. and Gene Parker] [PHOTO: Portrait. CAPTION: Gwen Stokes]
This month's recipes come from the National Federation of the Blind of Mississippi.
by Gene Parker
Gene Parker's husband E.U. is a longtime leader of the National Federation of the Blind. He served as President of the NFB of Mississippi for many years. Gene is an excellent cook. She brought this casserole to the Thanksgiving Board meeting last fall, where it promptly vanished.
2 16-ounce cans cream-style corn
1/2 cup vegetable oil
4-ounce jar pimiento, diced
1 6-ounce package Martha White Mexican corn bread mix with
salt & pepper to taste
Method: Mix all ingredients and bake 45 minutes in an open casserole dish at 350 degrees.
SOUTHERN PECAN PIE
by Gene Parker
1/2 cup sugar
2 tablespoons flour
1 cup white Karo syrup
1 cup chopped pecans
4 tablespoons margarine
1 teaspoon vanilla
1 unbaked, deep-dish pie crust
Method: Spread pecans in bottom of pie shell. Mix flour with sugar. Add Karo, eggs, margarine, and vanilla. Pour over pecans in pie shell. Bake 50 minutes at 350 degrees.
PEANUT BUTTER COOKIES
by Gwen Stokes
Gwen Stokes is Second Vice President of the Jackson Chapter of the NFB of Mississippi and a member of the state Board of Directors.
1 2/3 cup flour
1« teaspoons baking powder
1/2 cup butter or margarine
1/2 cup brown sugar
1/2 cup Karo syrup
creamy peanut butter
1 egg, well-beaten
1/2 teaspoon vanilla
Method: Sift together the flour, baking powder, and salt. Cream butter, gradually adding the brown sugar, until light and fluffy. Add syrup. Add 1/4 cup peanut butter, beat until smooth and well-blended. Then add egg and vanilla. Add the sifted dry ingredients a little at a time, mixing well after each addition. Shape into balls about 1 inch in diameter. Place about « teaspoon of peanut butter on each cookie. Bake at 350 degrees for 12 to 15 minutes. Makes about 40 cookies.
SOUTHERN CORN BREAD
by Gwen Stokes
2 cups corn meal
1/2 cup flour
1 teaspoon salt
1/2 teaspoon baking soda
2 teaspoons baking powder
2 cups buttermilk
2 tablespoons bacon drippings or melted margarine
Method: Combine corn meal, flour, salt, baking soda, and baking powder. Sift together in mixing bowl. Add buttermilk and egg. Stir until well mixed, then add bacon drippings. Pour into a greased baking pan which has been heated in a 475-degree oven. Bake for 20 to 25 minutes. Note: if using yellow corn meal, reduce heat to 425 degrees.
BANANA NUT BREAD
by Gwen Stokes
1 cup flour
2 teaspoons baking powder
2 teaspoons baking soda
1/2 teaspoon salt
1/3 cup shortening
2/3 cup sugar
2 eggs, well-beaten
1 cup ripe mashed bananas
1 teaspoon vanilla
1/2 cup chopped nuts
Method: Mash bananas. Sift together flour, baking powder, baking soda, and salt. Beat shortening and sugar together with a wooden spoon until creamy. Add eggs and beat well. Add the sifted dry ingredients alternately with the bananas to the sugar mixture. Beat until smooth. Stir in nuts and vanilla. Bake in a greased and floured loaf pan (or non-stick loaf pan) at 350 degrees for 1 hour.
by Lucille Turner
Lucille Turner is an active member of the Jackson Chapter and mother of chapter treasurer James Prince.
2 cups French-style green beans
1 can whole kernel corn
1/2 cup onion, chopped
1 cup beets, sliced
1 cup celery, diced
1 small green pepper, chopped
1 small jar pimiento, chopped
1« cup sugar
1/2 cup salad oil
1 cup vinegar
Method: Drain beans and corn. Sprinkle with salt and allow to sit overnight. Next day, drain beans and corn again. Add pepper, celery, onion, and pimiento. Add remaining vegetables. Pour marinade over vegetables and allow to sit overnight.
by Lucille Turner
1 cup sugar
1 3-ounce package cream cheese, softened
1 15 1/4-ounce can crushed pineapple
1 8-ounce container Cool Whip topping
1 9-inch pie shell
Method: Combine sugar and cream cheese and blend well. Add drained pineapple. Fold in topping until well-blended. Pour into a baked pie shell and refrigerate for 4 hours.
EASY MAKE DUMP DESERT
by Lucille Turner
1 large can crushed pineapple
1 large can cherries or blueberries
1 box yellow cake mix
1/4 pound butter
1 cup chopped pecans
Method: Preheat oven to 350 degrees. Spray a 9 by 13-inch baking pan with non-stick cooking spray. Layer pineapple evenly into pan. Place cherries or blueberries on top of pineapple. Pour cake mix into pan, spreading evenly. Slice butter into squares and place on top of cake mix. Sprinkle with pecans. Bake in 250- degree oven for 1 hour. Slice as a pie.
** Newsletter on Financing Assistive Technology Now Available:
We have been asked to announce the arrival of a newsletter called Financing Assistive Technology, edited by Steven Mendelsohn, who wrote Financing Adaptive Technology: A Guide to Sources and Strategies for Blind and Visually Impaired Users. The first bimonthly issue appeared last March in print and on cassette and computer disc. The publication promises to fill a real gap in the disability field, and judging from the first issue, it will be a welcome addition. Mendelsohn is blind, so he knows firsthand what he is talking about, and he does what he sets out to with focus and sense. Subscription costs are individuals, $39 (one year), $73 (two years), $102 (three years); organizations/businesses, $45 (one year), $85 (two years), and $120 (three years). You can receive a sample issue or subscribe to the newsletter by contacting Smiling Interface, P.O. Box 2792, Church Street Station, New York, New York 10008-2792; phone (415) 864-2220; E-mail, firstname.lastname@example.org
[PHOTO: Gwen Rittgers sits on sofa with her dog. CAPTION: Gwen Rittgers, 1914-1994]
** In Memoriam:
We are saddened to report the death on May 11, 1994, of Gwen Rittgers, one of the founders and a mainstay of the National Federation of the Blind of Missouri. Gwen joined the Missouri Federation of the Blind (MFB) in 1955 and soon became its corresponding secretary. She continued in this post until her strong loyalty to the National Federation of the Blind at the time of the organization's civil war in the late fifties made her unwelcome in the leadership circles of the MFB. Following the NFB's expulsion of fifteen state affiliates, Gwen and a handful of others worked tirelessly to re-establish a Federation presence in Missouri. She and her husband George were two of the most loyal and hardest working Federationists in the state throughout those difficult years.
Gwen continued to love and serve the National Federation of the Blind in large and small ways throughout her life. In recent years her health has been poor, but even when she could not attend conventions, she remained vitally interested in the plans being made and the work being accomplished. Her contribution to the strength and spirit of this organization is a lasting tribute to her character and commitment and an example to us all. We will miss her deeply.
** Sample Medication Now Has Braille Labeling:
We recently received the following announcement:
Marion Merrell Dow, Inc., has introduced Braille sample packaging for visually impaired patients taking the company's high blood pressure medication Cardizemž CD (diltiazem HCI). Beginning in January, Cardizem CD sample packets for 180-mg, 240- mg, and 300-mg dosages began appearing in seven-tablet packets with Braille numbers to the left of the tablets designating the day of the week. When patients receive a Cardizem CD prescription from their physicians, they often receive free Cardizem CD samples. Now blind patients can use samples marked in Braille provided by Marion Merrell Dow.
** Handmade Jewelry Available:
We have been asked to carry the following announcement:
Get your very own handmade jewelry. All designs are original beaded pieces, perfect for birthdays or any other special occasion. Choose from black onyx; fresh water pearls; or any size, shape, or color glass beads. Prices vary depending on materials, selection, and complexity of design. Include $2 shipping and handling on each order. To place an order, call Monica Horodenski at (410) 525-2866 (evenings); or send to 1001 Joh Avenue, Baltimore, Maryland 21229.
** Interactive Newsletter on Relationships:
We have been asked to carry the following announcement:
Janiece Betker, a Federationist from Minnesota, writes as follows:
Have you been perplexed and amazed at the vagaries of human relationships? Have you had experiences or solved relationship problems in ways that might help others? Are there issues you would like others to help you with? If so, we invite you to join our interactive newsletter by sending for your free introductory cassette. Send us your name and address, with your phone number if you wish, in Braille or on cassette if possible. (Print can be managed, but your request will be delayed a few days.) Send to Pipeline, % Janiece Betker, 1886 29th Ave., N.W., New Brighton, Minnesota 55112; phone (612) 631-2909. Leave name and address. Help make this newsletter a great success. We want your views in your own voice. Join our lively discussion group or sit back and listen. Send today for your free introductory cassette.
** Braille Signs Available:
We have been asked to carry the following announcement:
American Braille Works, a wholesale sign company based in Beaumont, Texas, announces that it is about to enter its third year of business. American Braille Works deals exclusively in interior signage complying with the ADA. Signs are available in many materials, styles, designs, and shapes. Discounts are available to non-profit organizations that are making an effort to make their property more accessible. American Braille Works also offers a line of Braille menus to help restaurants comply with the ADA. For more information or a color brochure, contact an American Braille Works representative at (409) 832-0117.
** NFB pencils and decals needed:
Dorothy Goodley of the National Federation of the Blind of Georgia would like to locate NFB decals and pencils. If you know where she might find them, please contact her at 615 Fifth Street, S.E., Moultrie, Georgia 31768; or call her at (912) 985- 4064.
[PHOTO: Portrait. CAPTION: Andy Virden]
** Andy Virden Retires:
Marie Magnuson, Secretary of the Central Minnesota Chapter of the NFB of Minnesota, reports the following:
In October, 1993, our chapter elected Bob Arnold to succeed Andy Virden as President. Andy had been our leader for fourteen years. He retired in January of this year and closed the newsstand in the St. Cloud post office after thirty-eight years of service. Under Andy's leadership the chapter has continued to grow. His influence is still felt in the community. He belongs to the Waite Park St. Joseph's Church choir, the Waite Park Boosters, and the Knights of Columbus. He will now have more time to do the things he wants to. He attended this year's Washington Seminar and is a member of the National Board of the Blind Merchants Division of the National Federation of the Blind. He is now working on a cassette tape about blind people in St. Cloud for the Heritage Center. We will continue to benefit from the many friends he has made in the community.
The following is a portion of an article which appeared in the St. Cloud Times:
After Thirty-Eight Years Downtown Fixture Calls it a Career
by John DuBois
Post office counter to close with retirement of Andy Virden.
An old man looks at his friend. "I hear you're retiring," he says.
"Yeah, I am in mid-January," Andy Virden, answers.
"I'm sorry to hear that," the man says. "People are going to miss you. You're going to miss them, too."
Virden, a blind man who's run a concession stand in St. Cloud's main post office, is retiring after nearly four decades of service.
What's more, the little counter where he sold cigarettes, candy, pop, newspapers, and more is closing as well.
"I've been here thirty-eight years," Virden said. "Twenty- eight in this building, ten in the old one."
Virden, who's sixty-six now, figures it's time to put his energy into something else. His concession business took quite a bit of it.
** New Credit Card Owner's Manual Available:
We have been asked to carry the following notice:
Visa U.S.A. and the American Foundation for the Blind (AFB) have created an audio cassette version of Visa's publication, Credit Cards: An Owner's Manual, designed specifically to communicate consumer rights and responsibilities and the wise use of credit to consumers who are visually impaired.
The new cassette, available for borrowing from the network of regional libraries in the National Library Service system, covers factors affecting credit card costs, rules and regulations, and cardholder rights.
Narrated by Broadway actors Christopher Hurt and Catherine Byers, the sixty-minute cassette includes lively descriptions of the Cathy [TM] cartoons featured in the Owner's Manual print brochure. And for Cathy and all who share her personal finance foibles, the Owner's Manual provides valuable tips on how to use credit cards wisely and how to make and follow a budget.
** More About Goats:
Stephanie Pieck, a student member of the National Federation of the Blind of New York and breeder of champion goats, writes the following:
Since September, 1993, a publication called Blind Dairy Goat Breeders of America Newsletter has been mailed from Ithaca, New York, to interested readers. Beginning with the June issue, however, the magazine will have a new title, and the address for the editor will change. It will still be mailed on a monthly basis, free of charge. It is available in regular print, large print, and Braille and on cassette. If you would like to know more about the newsletter or would like to subscribe, write in any format to Stephanie Pieck, R.D. 3, Box 200, Altamont, New York 12009, and ask about Goat Notes.
** Spreading the Word:
Dr. Jernigan recently received a letter from the Director of the St. Petersburg City Library for the Blind. It is one more reminder of the growing impact of our literature on people around the world. Here is the letter:
St. Petersburg, Russia
Dear Dr. Jernigan:
Our library has prepared for publication the first material for partially sighted people in large-print format. It is a Russian translation of your report, "Blindness: the Pattern of Freedom," published by the NFB in 1985. We are asking for your permission to reproduce a Russian translation of this article in large-print format. We would be very much obliged if you could give us this permission as soon as possible.
The results of the recent election of officers for the Omaha Chapter of the National Federation of the Blind of Nebraska are as follows: Larry Streeter, President; Vicki Hodges, First Vice President; Robert Newman, Second Vice President; Laurie Eckery, Secretary; and Bob Simonson, Treasurer. Larry Lee, Alan Kopetzky, Carol Thompson, and Lonnie Merritt were elected to serve as Board Members.
[PHOTO: Frank Kurt Cylke speaks at microphone. CAPTION: Frank Kurt Cylke]
We recently received the following press release:
Frank Kurt Cylke, Director of the National Library Service for the Blind and Physically Handicapped (NLS) of the Library of Congress, is this year's choice to receive the Joseph W. Lippincott Award, bestowed by the American Library Association (ALA) for a lifetime of distinguished librarianship. The award will be presented during the ALA annual meeting in Miami Beach, June 23 to 30.
Under Mr. Cylke's direction the number of users of NLS services has increased to more than 700,000 persons, ranging in age from preschool to over 100. The NLS budget has grown from nine point nine million dollars in fiscal 1973, when Mr. Cylke was named director, to almost forty-three million in fiscal 1994.
We of the NFB join with the American Library Association in congratulating Kurt Cylke.
[PHOTO/CAPTION: Dick Snell, Kent McGregor, and Catherine Pickett (left to right) are pictured here.]
** New Chapters:
Sharon Gold, President of the National Federation of the Blind of California, writes a weekly memorandum, called the "Clipboard," to affiliate leaders. In the April 14 issue she announced the creation on April 9 of the North San Diego County Chapter of the NFB of California. The new officers are Julie Cody, President; Phyllis Bradtke, Vice President; Jennifer Larson, Secretary; Shirley Baillif, Treasurer; and David Faiman, Board Member. Sharon says, "This is an enthusiastic group of people, and I know they will do well in spreading the word of the Federation throughout the North San Diego County area."
Kristen Jocums, President of the Salt Lake Chapter of the National Federation of the Blind of Utah, reports that the affiliate is pleased to announce the formation of the Dixie Chapter, located in Southern Utah. It was formed during the final meeting of a conference sponsored by the NFB of Utah in St. George on April 7, 8, and 9, 1994. The energetic people who attended that meeting formed the chapter, elected officers, and began making plans for chapter projects. Congratulations to the Dixie Chapter and to the following new officers: Kent McGregor, President; Catherine Pickett, Vice President; and Dick Snell, Secretary/Treasurer.
** ChocoBraille Available:
We have been asked to carry the following announcement:
The Chocolate Experience, Inc. announces that it continues to produce the most unusual greeting cards on the market, ChocoBraille, Braille-embossed chocolate bars.
The gift-packaged ChocoBraille is available to all individuals, organizations, schools, and agencies; no order is too big or too small. The cards are ideal for all occasions, holidays, and fundraisers.
You can express yourself by saying "I love you," "Thank you," "Merry Christmas," "Happy holiday," "Have a nice day," or "Happy birthday" in quality-tasting semi-sweet, milk, and white chocolate and in sugar-free milk and white chocolate (includes Mannitol as sugar substitute).
The candy bars are seven by four inches and weigh five ounces. The price is $2.50 for regular chocolate and $3.50 for sugar-free. Add $1 for each bar with nuts. No minimum purchase required. You may receive a 10 percent discount on orders of 100 to 199 bars, 15 percent on orders over 200.
To place an order or request additional information, please contact Judy Geva at the Chocolate Experience, Inc., 150-57 Bayside Avenue, Flushing, New York 11354; phone: (718) 461-1873, FAX: (718) 321-0217.
** This Notice May Be for You:
If you were born in 1944 and are planning to attend the NFB Convention this summer, contact Sharon Omvig evenings and weekends at (602) 575-0725; 1525 W. Canyon Shadows Lane, Tucson, Arizona 85737.
** Identification Requested:
Mr. Lane Anthony, a teacher of blind and visually impaired children in Wisconsin, has asked that we identify him as the teacher whose letter to Bonnie Peterson was reprinted as part of the article "The Struggle to Evade Duty: Wisconsin Teachers of the Blind Fight Against Braille," which appeared in the March, 1994, issue of the Braille Monitor. Mr. Anthony reiterates that he stands behind all statements made in his letter.
The Las Cruces Chapter of the National Federation of the Blind of New Mexico held elections on March 26, 1994. The officers are Kelly Burma, President; Joaquin Luna, Vice President; Darlene Ortiz, Secretary; Charly Kirk, Treasurer; and John Blake and Darlene Gamble, Board Members.
** Exercise Tape Available:
We have been asked to carry the following announcement:
Improve your health and appearance through exercise. "Moving with Marge," a 50-minute exercise program on cassette tape, has been designed for people of all ages. Side one contains detailed instructions for exercises which, if done regularly, will tone and strengthen the major muscle groups of the body. Side two contains a variety of musical selections which can be played while doing the exercises, following Marge's competent guidance. To order, please send a check made payable to Lois Howard for $7.50, 61951 High Hill Road, Cambridge, Ohio 43725; or call (614) 432-2287.