Article Archive

 

Week of August 9, 2010

City, county eyeing social media policies

By Eva Ruth Moravec
Express-News Web
Posted: 08/02/2010 12:00 CDT 
 
When drug violence in northern Mexico exploded in February and the mayor of the border city of Reynosa was trying to control rumors with accurate information, he found something that worked faster than press releases or media appearances - the social networking website Twitter.

And this summer, when Hurricane Alex caused the worst flooding on the Rio Grande in decades, officials used social networks like Twitter, Facebook and YouTube to get vital information out.

The networks are rapidly replacing face-to-face and even phone conversations for many, so public safety agencies are starting to see their benefits and grapple with occasional pitfalls.

Last month, a woman angered by an encounter with an airport police officer was flabbergasted when she looked up the officer's Facebook page. He'd posted a comment about getting caught speeding in a school zone with an open beer bottle and talking his way out of a ticket.

There's no standard policy or set of procedures governing how public entities or their employees should use social networking sites. Agencies are in various stages of evaluating what constitutes proper online conduct.

Bexar County is writing a social media policy that would address personal networking. There's nothing about it in the county's computer resources use policy, last amended in June. The city of San Antonio put out an administrative directive in January that explains how employees should represent their departments and themselves online, spokeswoman Di Galvan said.

"The city of San Antonio was one of the first to have a social media policy that's been implemented in the state," Galvan said. "We tried to find other policies and really couldn't find any that addressed a municipality. Employees want guidelines, and that's what we provided to them."

The woman who found the airport officer's Facebook boasts about avoiding an open-container citation called the officer's supervisor, Galvan said.

"They did look into it, and the complaint was addressed administratively," police department spokeswoman Sandy Gutierrez said.

The officer's Facebook page was modified, and the remarks the woman found offensive were removed.

"The department reminds their employees to exercise good judgment and not to bring negative publicity or discredit to the city or Police Department," another police spokesman, Sgt. Chris Benavides, said.

The city hasn't defined exactly what would be considered inappropriate. The directive puts it this way: "Ensure your profile and related content is consistent with how you wish to present yourself as a City professional, appropriate with the public trust associated with your position, and conforms to existing ethical standards."

The city has comparatively strong rules for how its departments must manage their social media networks - and it has 58 such networks. The Police Department doesn't have one yet, but the Fire Department does.

"We use it to advertise events with the department," SAFD spokeswoman Deborah Foster said. "We wanted people to know that we do more than just 'Fill the Boot.'"

Foster said the Facebook page has been helpful in publicizing the department's firefighter training application drive, posting photographs and event listings, and learning how San Antonians feel about SAFD.

The department doesn't have a Twitter account, she said. Two private citizens use SAFD's online list of calls for service to feed tweets to two accounts, but they have nothing to do with the department and make that point known.

"They were putting out medical runs and using our logo," Foster said. The accounts changed the logo and were allowed to continue, she added.

Bexar County Sheriff's Office spokeswoman Linda Tomasini doesn't use social media to inform the public about her department's goings-on, but the office plans to explore how to expand its social media presence soon, she said.

Alamo Heights Police Chief Rick Pruitt already has begun that process. About two months ago, Officer Steven Orr approached him about starting a department Twitter account.

Orr said he has a private account to post "tweets" - short messages of no more than 140 characters - on his personal life, not work-related things. But he admires several police department accounts he follows and wants to implement some of their ideas.

"I've found out that it's a really good way to communicate with the public," Orr said. "They post a mixture of things: some will post that they're working traffic at a certain area, some post safety tips and some post information on arrests."

Pruitt said he does not use Facebook or Twitter, but he's interested in learning more about it.

"Just because I'm not part of this personally doesn't mean that I think it's a bad idea for the department," he said. "I just need to find out more. We just have to be very careful."

   

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Week of August 2, 2010

Company helps city patch potholes

By Lisa Carter - Express-News
Web Posted: 07/08/2010 12:00 CDT

The Hartford Pothole Patrol website
http://potholepatrol.thehartford.com/city_san_antonio.shtml

The city partnered with Hartford Financial Services Group on Wednesday to fix several potholes throughout the city.

The event was part of the Hartford Pothole Patrol, an initiative in which Hartford representatives work with city employees to repair as many potholes as possible across a city in one day. San Antonio is one of seven cities representatives are visiting this summer.

April Hernandez, the city's public works spokeswoman, said Hartford was covering the cost of patching the potholes. Alison Clark, spokeswoman for Hartford, said the goal of the initiative is to make drives easier for residents.

"We're trying to make commutes safer and easier for drivers by picking up the tab for the day," she said.

Employees filled the first pothole around 10:30 a.m. in the 300 block of East Glenn Avenue on the South Side and continued throughout the day. Hernandez said at least one pothole was filled in each quadrant of the city.

Clark said the potholes selected for repair were those described as the worst in the city by San Antonio residents.

GfK Roper conducted a local survey for Hartford to determine factors that affect people's attitudes about driving. According to the research, 73 percent of respondents in San Antonio would rather drive on smooth roads in heavy traffic than on clear roads with potholes.

Though 63 percent of residents indicated they are satisfied with the maintenance of city streets, 32 percent said improving San Antonio roads would be the best way to make driving easier.

Clark said Hartford is the only company that sponsors this kind of pothole project. She said the initiative adds to what city employees do to improve city roads.

"I think the city does a great job already," she said. Hartford "is trying to help by taking the opportunity to give back to the city of San Antonio."

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Week of July 19, 2010

Dallas-Fort Worth businesses wrestle with issues created by patrons' tattoos 

Posted Sunday, Jul. 04, 2010
Express your opinion in a letter to the editor
By SANDRA BAKER
sabaker@star-telegram.com

About a month ago -- and within days of each other -- two patrons at Six Flags Over Texas in Arlington were asked to cover up tattoos that employees decided could offend other visitors.

Like Six Flags, some other popular Tarrant County attractions have dress codes that apply to tattoos. All are family-friendly places that say they've had no problems with folks agreeing to cover their tattoos out of respect for children.

But along with those rules comes a growing acceptance of tattoos -- at least in general, if not in specific.

In December, the Pew Research Center issued a report on Americans' shifting attitudes toward tattoos in the decade of the 2000s. About 40 percent of respondents said the increase in people getting tattoos was a change for the worse. But they were outweighed by the 45 percent who said it made no difference and the 7 percent who said the increase in tattoos is positive, Pew found.

Which is not to say that anything goes.

Lifeguards at Hurst city pools, for example, are required to conceal tattoos while on duty, and swimmers with tattoos deemed distracting or offensive may be asked to do the same, said Doug Kratz, Hurst's recreation director.

The policy has worked well, he said.

"It doesn't happen very often" that someone is asked to cover a tattoo, Kratz said. "I think it's happened one time that I can recall, and that was five or six years ago."

Likewise, at North Richland Hills' NRH {-2}O water park, visitors often alert employees of offensive tattoos, who in turn ask the person to be more discreet, said Stephanie Hee, the park's marketing specialist. In the 16 seasons the park has been open, guests have always complied, she said. The park averages about 250,000 guests between mid-May and Labor Day, she said.

"If it's too offensive, we would ask them to cover it up, basically in the interest of our young guests," Hee said.

The Fort Worth Zoo doesn't have a guest dress policy at all, spokeswoman Alexis Wilson said.

"It's never been an issue," she said. "We've never had to look at a policy."

Not a big issue

Not even the National Tattoo Association hears many cases of people being asked to cover up tattoos to enter public attractions, said Sailor Bill Johnson, a longtime executive member and spokesman.

"I'm not sure how offensive it would have to be," Johnson said. "More and more you're seeing tattooed people in the workplace."

Companies are increasingly asking about setting up dress codes for customers, said Chris Lang, a lawyer with Fisher & Phillips in Dallas, an employment law specialist. It's not illegal to ask employees to cover up tattoos if it interferes with business or the business's image, he said. But companies can't discriminate because a person has a tattoo.

"The policy should be tailored toward business needs," Lang said.

Ben Agger, a sociology professor at the University of Texas at Arlington, said First Amendment protections make it a slippery slope for businesses to ask customers to cover up tattoos. But in some circumstances it's the right thing to do, he said.

"We live in a society with few limits on self-expression," Agger said. "When kids are involved, it's OK to draw the line."

Learning tolerance

In one of the Six Flags cases, a man had a tattoo of a naked woman on his forearm. In the other, Samantha Osborn had tattoos of six-shooters on her upper chest. Osborn reportedly left one entrance when asked to do so and then entered the park through another line without being stopped or covering up.

Sharon Parker, the park's communications director, said employees watch for tattoos with vulgar designs or offensive language.

"We know we have guests who are colorful," Parker said. "We have no problem with those who are expressive. For the most part, people understand and come out and have a good time. When it's harmful to others, that's when we will step in."

An example of being colorful but acceptable might have been Brandon Overbee of Plano, who in May stood outside Six Flags all day giving hugs to set a Guinness World Record. While his body is covered in tattoos and piercings, 5,232 people shared a hug with him.

Parker said that when Overbee called to ask permission for his quest, he did mention his body art, Parker said.

"His weren't offensive," Parker said.

UTA's Agger said the lesson from the tattoo issue is to accept people's differences.

"People need to tolerate all types and forms of self-expression in public," he said.

 

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Week of July 12, 2010

Cape Coral city manager scoring questioned

by don ruane
druane@news-press.com

A score used to rate management experience helped launch Gary King into a favorable role as the choice for Cape Coral's next city manager.

That same score may have hurt the chances of current City Manager Carl Schwing.

The score came from one of 11 questions used to rank candidates.

King collected a maximum of 10 points for "experience in managing a large complex organization with 1,000 people." But King has no government experience and hasn't managed more than 350 people in any one job, according to his resume.

Schwing scored only 1 point, even though he has more than 28 years of government and management experience, including four as a manager for Cape's 1,000-plus employees. But before coming to the Cape, he never managed an organization with more than 1,000 employees.

That 10 helped King collect 71 points for all the questions, the most of any of the five finalists interviewed. Schwing had 66 points, ranking third.

Human resources director Wayne Howard and recruitment manager Patra Hill came up with the questions. Hill did the evaluations, while Howard signed off on the scores. Howard admits the experience question may have been misleading.

"In order to get a 10, you had to have (more than 10 years) experience managing in a large, complex organization over 1,000 people," Howard said, noting King had more than 19 years experience. "We didn't pick 1,000 based on any application. Gary had experience over 10 years. Carl did not."

Howard said he and Hill never discussed the scores.

"She looked at it reasonably," he said. "If we would have thought the evaluation would become a focal point, we may have looked at things differently."

Schwing's score of 1 point was based only on the fact he has just four years in an agency of 1,000, all in the Cape. Schwing also is Howard's boss.

Howard said the score sheets were never intended to be released. His office used them as work sheets. The scores were released after The News-Press made a public records request.

"I don't know why this is becoming a battleground. They were both the best qualified," Howard said. "We conducted a fair and objective process."

King, who is still negotiating his contract, could not be reached for comment. Schwing declined to comment.

Experience, including four as a manager for Cape's 1,000-plus employees. But before coming to the Cape, he never managed an organization with more than 1,000 employees.

That 10 helped King collect 71 points for all the questions, the most of any of the five finalists interviewed. Schwing had 66 points, ranking third.

Human Resources director Wayne Howard and recruitment manager Patra Hill came up with the questions. Hill did the evaluations, while Howard signed off on the scores. Howard admits the experience question may have been misleading.

"In order to get a 10, you had to have (more than 10 years) experience managing in a large, complex organization over 1,000 people," Howard said, noting King had more than 19 years experience. "We didn't pick 1,000 based on any application. Gary had experience over 10 years. Carl did not."

Howard said he and Hill never discussed the scores.

"She looked at it reasonably," he said. "If we would have thought the evaluation would become a focal point, we may have looked at things differently."

Schwing's score of one point was based only on the fact he has just four years in an agency of 1,000, all in the Cape. Schwing also is Howard's boss.

Howard said the scoresheets were never intended to be released. His office  used them as worksheets. The scores were released after The News-Press made a public-records request.

"I don't know why this is becoming a battleground. They were both the best qualified," Howard said. "We conducted a fair and objective process."

Hill added: "We intended to rank each applicant consistently using the No. 1,000."

She arrived at that number comparing the size of Cape and other Lee County governments and past agencies where she and Howard were employees.

"I never thought to give Carl more. The question did not require it," Hill  said.The score became an issue when Mayor John Sullivan said in an opinion piece in The News-Press that he used the evaluation to defend the choice of King. He described King as the highest-rated finalist. Sullivan, however, said he didn't know the scores until after the choice was made.

"I stressed the numbers because they are factual numbers. The other two parts were opinion," Sullivan said.

King, who is still negotiating his contract, could not be reached for comment. Schwing declined to comment.

Councilman Marty McClain said the department should have passed off the search to a neutral observer after it collected the resumes.

"It's a difficult situation when you're trying to score who will be your next boss," McClain said. "We probably should log this in for future reference so we don't do this again."

The scoring didn't make a difference in the selection, said longtime civic activist Ralph LePera.

"They're using this as their rationale. A resume and a letter is all this was based on," Lepera said.

The scores, the applicants' written answers to a series of questions and interviews before council were used to pick King.

The scoresheets are being confused now with a ranking system, Howard said.

"It's a misnomer to characterize it as a ranking," Howard said. "We had to have a way to assess them to put them in (best qualified to least qualified) bands. Once in the bands everyone was equally qualified, equally selectable," Howard said.

Even Sullivan wondered about some of the scoring.

Why, Sullivan asked, did applicant Peter Sands get just 29 points overall with his management experience?

For example, Sands scored a one on knowledge or experience with infrastructure issues. His resume said he was responsible for $2 billion of infrastructure at Grand Forks Air Force Base.

King, who led an international information technology division for State  Street Bank and Trust, received 10 points for experience or knowledge about infrastructure.

 

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Suburbs consider merging firefighting forces
Measure looks to keep budgets from going up in smoke

By Stan Ziemba, Special to the Tribune

July 7, 2010

Increasingly tight budgets have some south suburban municipalities looking into sharing or merging their fire protection and emergency medical services as a way to save money.

The adjoining suburbs of Alsip, Chicago Ridge and Oak Lawn in recent months have signed on to a study by the Metropolitan Mayors Caucus that explores the feasibility of merging some function of their fire departments or consolidating them into a single fire protection district.

"Villages can't afford their fire departments anymore," Chicago Ridge President Eugene Siegel said during a June village board meeting when trustees agreed to contribute $3,750 toward the study.

An outright merger of the three departments would combine Chicago Ridge's two fire stations and 31 full-time and paid-on-call personnel, Oak Lawn's three stations and 88 full-time firefighting positions, and Alsip's two stations and 39 full-time firefighters. The three departments combined serve nearly 85,000 residents.

"Given the current state of the economy and the reductions in state funding for municipalities, it's important to find ways to achieve cost savings which are not only good for local governments but also for taxpayers," said Oak Lawn village manager Larry Deetjen.

Currently, 56 cents of every tax dollar coming to Oak Lawn is used for public safety, including police and fire protection and other emergency services, Deetjen said.

An outright merger of the three fire departments would not be unique. Several communities across the nation have combined their fire and medical emergency services and/or their police departments in recent years, according to the National League of Cities.

Last year, the fire department in south suburban Worth merged with the North Palos Fire Protection District. Worth officials estimated that the village last year saved $291,000 in maintenance, insurance and overtime pay costs as a result of the consolidation and projected that it will save the municipality "millions" over the next several years.

Furthermore, Deetjen noted that the three communities under study, as well as other southwest suburbs, already have successfully combined some basic municipal operations. Oak Lawn, for example, provides Lake Michigan water to 12 communities in the region and 911 dispatch service to four police departments and seven fire departments in the area.

Oak Lawn village Trustee Tom Phelan broached the subject of creating a fire prevention district including Oak Lawn and one or more of its surrounding communities last year, calling it "logical" in light of the increasing cost to the village of fire protection and emergency medical services.

"It certainly has the potential to be a huge cost savings for us," Chicago Ridge village Trustee Brad Grove said during a recent Village Board meeting at which consolidating that village's fire protection services with its neighboring communities was discussed.

But merging fire departments, should it reach that point, wouldn't be an easy task, municipal experts say. According to a 2009 report by the Metropolitan Mayors Caucus on combining municipal police and/or fire services, several obstacles must be overcome, including resolution of any conflicting labor contract and pension provisions between departments, creation of a governing body and a determination of how to finance the combined operation.

Creation of a fire protection district likely would have to be approved by a majority of the voters in the affected municipalities, the report noted. That's something that recent history has shown is difficult to achieve, especially if voters also are asked to approve a tax to support the district.

Consequently, an outright merger of local fire department likely would become a "logistical nightmare," Bob Lanz, who heads Oak Lawn's fire union, said last year in response to Phelan's fire department consolidation proposal.

Even if all of the obstacles could be overcome, the process of merging or even significantly integrating fire and/or police functions among municipalities could take months, if not years, according to the mayors caucus report.

Municipalities considering consolidating their fire or police departments might want to first standardize and increase sharing equipment, participating in joint training exercises and partnering on office support and record keeping functions, the report said.

A major concern of firefighters is whether a consolidated department would maintain the current staffing levels of firefighters in Alsip, Chicago Ridge and Oak Lawn. Siegel said the number of firefighting personnel would not likely change, at least in Chicago Ridge.

Chicago Ridge fire Chief Randall Grossi added that firefighters probably would not object to creating a fire protection district as long as their pay and benefits were not reduced.

 

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Search continues for new city manager

Amarillo.com
Web-posted Wednesday, June 30, 2010

The search for a search firm to find a new Amarillo city manager could move forward next week.  The Amarillo City Commission agenda for next Tuesday likely will include the possibility of awarding a contract for recruiting services to Strategic Government Resources based in Keller.

SGR is one of 12 firms that submitted proposals in a process initiated in May, after the retirement of former City Manager Alan Taylor.

A committee consisting of assistant city managers Vicki Covey and Dean Frigo, Assistant Purchasing Agent Trent Davis and Human Resources Director Lori James evaluated the 12 proposals based on experience and capacity to do the job, fees to be charged, warranties they would provide, anticipated timelines and approach/methodology, James told commissioners Tuesday. SGR, established in 1999, came out on top in the evaluation process and is the firm the committee recommends that the commission hire.

SGR has experience in placing city managers, and the owner of the firm is a former Garland city manager and Plano assistant city manager, according to information provided to the commission.

The firm has proposed a 16-week timeline for the search-and-hiring process and a $21,000 fee for professional services and expenses. Expenses for candidate travel to Amarillo and other items would be added to the base fee.

 

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Maywood, Calif., to city cops and employees: You're fired
The entire Maywood, Calif., police force is being laid off. The city will be policed by the L.A. County Sheriff's Department.

By Tami Luhby, senior writerJuly 1, 2010: 8:00 AM ET

NEW YORK (CNNMoney.com) -- Tiny Maywood, Calif., laid off every single one of its city employees on Wednesday.

But that doesn't mean the city is closing up shop. City Hall will still be open, as will Maywood's park and recreation center. Police will continue to patrol the streets.

They just won't be staffed by Maywood employees. The city can't have any staff because it can't get liability or worker's compensation insurance for them. Maywood's carrier, the California Joint Powers Insurance Authority, dropped it earlier this month in part because of several police-related claims.

Instead of declaring bankruptcy, Maywood officials decided to outsource all city functions. The Los Angeles County Sheriff's Department will patrol the streets, while the neighboring city of Bell will cover other city functions, such as staffing City Hall.

Maywood already relies on contract workers and outsources many city services. The director of parks and recreation, for instance, is a contractor, and the city's lights, landscaping and street sweeping are handled by private companies. Los Angeles County maintains the library and fire department.

Some of Maywood's 96 employees -- which include 41 police officers -- will also continue as contract workers. Elected officials, such as the city council and the city clerk, will remain on the job in the 1.5-square-mile municipality, which has about 45,000 residents.

"Odds are residents will see the same faces as in years past, just under a different administrative process," said Magdalena Prado, the city's community relations director, who is a contract worker and is keeping her post.

Maywood is billing itself as the first American city to outsource all of its city services. In an odd twist, officials say it can provide even better services because the shift will help it save money and close a $450,000 shortfall in its $10 million general fund budget.

For instance, the contract with the sheriff's department costs about half of the more than $7 million spent annually to maintain the Maywood police department, Prado said. And patrols will be increased.

"Our community will continue to receive quality services," Mayor Ana Rosa Riso said in a statement. "Maywood's streets will continue to be swept, our summer park programs will continue to operate and our waste will be collected and hauled as scheduled."
Stressed cities

A growing number of cities are looking to contract out or share services regionally as the economic downturn takes its toll on municipal budgets.

"Everything is on the table," said Chris Hoene, research director at the National League of Cities. "The fiscal stress cities are feeling mean they are looking for alternative options to deliver services that cost less money."

Some 7 in 10 city officials said they are cutting personnel to balances their budgets, while another 68% are holding off on capital projects, according to a survey the league did in May. More than half of respondents say they will make to further slash city services next year if taxes or fees are not raised.

Not everyone is distressed by Maywood's unusual plan for providing city services. While Jesus Padilla feels sorry for the workers being affected, he thinks things might improve. He's made lots of calls to the county sheriff's department when he worked as a security guard and said officers always responded promptly.

"The council made the best decision it could," said Padilla, a local activist who has lived in Maywood for more than 30 years. "It's going to be good for the city and the citizens."

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Payback Time
Illinois Stops Paying Its Bills, but Can't Stop Digging Hole

New York Times
By MICHAEL POWELL
Published: July 2, 2010

CHICAGO - Even by the standards of this deficit-ridden state, Illinois's comptroller, Daniel W. Hynes, faces an ugly balance sheet. Precisely how ugly becomes clear when he beckons you into his office to examine his daily briefing memo.

He picks the papers off his desk and points to a figure in red: $5.01 billion.

"This is what the state owes right now to schools, rehabilitation centers, child care, the state university - and it's getting worse every single day," he says in his downtown office.

Mr. Hynes shakes his head. "This is not some esoteric budget issue; we are not paying bills for absolutely essential services," he says. "That is obscene."

For the last few years, California stood more or less unchallenged as a symbol of the fiscal collapse of states during the recession. Now Illinois has shouldered to the fore, as its dysfunctional political class refuses to pay the state's bills and refuses to take the painful steps - cuts and tax increases - to close a deficit of at least $12 billion, equal to nearly half the state's budget.

Then there is the spectacularly mismanaged pension system, which is at least 50 percent underfunded and, analysts warn, could push Illinois into insolvency if the economy fails to pick up.

States cannot go bankrupt, technically, but signs of fiscal crackup are easy to see. Legislators left the capital this month without deciding how to pay 26 percent of the state budget. The governor proposes to borrow $3.5 billion to cover a year's worth of pension payments, a step that would cost about $1 billion in interest. And every major rating agency has downgraded the state; Illinois now pays millions of dollars more to insure its debt than any other state in the nation.

"Their pension is the most underfunded in the nation," said Karen S. Krop, a senior director at Fitch Ratings. "They have not made significant cuts or raised revenues. There's no state out there like this. They can't grow their way out of this."

As the recession has swept over states and cities, it has laid bare economic weakness and shoddy fiscal practices. Only an infusion of federal stimulus money allowed many states to avert deep layoffs last year.

Cuts in Work Forces

The federal dollars are nearly spent. Last month, local governments nationwide shed more than 20,000 jobs. Should the largest struggling states - like California, New York or Illinois - lay off tens of thousands more in coming months, or default on payments, the reverberations could badly damage a weakened economy and push housing prices down still further.

"You're not seeing these states bounce back, and that could be a big drag on the national economy," said Susan K. Urahn of the Pew Center on the States. "It could be a very tough decade."

In Illinois, the fiscal pain is radiating downward.

From suburban Elgin to Chicago to Rockford to Peoria, school districts have fired thousands of teachers, curtailed kindergarten and electives, drained pools and cut after-school clubs. Drug, family and mental health counseling centers have slashed their work forces and borrowed money to stave off insolvency.

In Beardstown, a small city deep in the western marshes, Ann Johnson plans to shut her century-old pharmacy. Because of late state payments, she could not afford to keep a 10-day supply of drugs. In Chicago, a funeral home owner wonders whether he can afford to bury the impoverished, as the state has fallen six months behind on its charity payments, $1,103 a funeral.

In Peoria - where the city faced a $14.5 million gap this year and could face an additional $10 million budget hole next year - Virginia Holwell, a trainer of child welfare caseworkers, lost her job when the state cut payments to her agency. She sits in her living room high above the Illinois River and calculates the months of savings left before the bank forecloses on her house.

"I've got enough to last until the end of August," she says, matter-of-factly. "I'm 58 and I'm pretty good at what I do, and I got to tell you, I'm pretty devastated."

Public colleges and universities occupy a fiscal sickbed all their own. This year they muddled through without $668 million expected from the state; the University of Illinois has yet to receive 45 percent of its state appropriation. Legislators made no pretense of promising to pay this bill soon. Instead they authorized colleges to borrow against the expected state payments.

"The big fear is that next year we'll be down twice as much," said Randy Kangas, an associate vice president of the university. "No one knows how to make the cash flow work."

Illinois legislators tend to plead victim to economic circumstance, and the state's maladies are considerable. In 2006, the Illinois unemployment rate stood below 5 percent; now it is near 11 percent, and the percentage of long-term unemployed exceeds the national average. Major manufacturers have eliminated thousands of jobs, and the state ranks in the top 10 nationally in foreclosures.

Five years ago, the Chicago suburb of Tinley Park issued about 650 home building permits; last year it processed one. The city of Rockford plans to close fire stations and lay off firefighters, and in Decatur, 180 impoverished seniors have lost their delivered meals. The lakeshore condo towers in Chicago bespeak affluence, but there are so many foreclosures on the bungalow blocks of southern and western Chicago that "for sale" signs sprout like sunflowers.

Few budget analysts are surprised to see Illinois, with a limping economy and broken political culture, edge close to the abyss. Two of the last six governors have served jail terms, and a third is on trial.

"We are a fiscal poster child for what not to do," said Ralph Martire of the Center for Tax and Budget Accountability, a liberal-leaning policy group in Illinois. "We make California look as if it's run by penurious accountants who sit in rooms trying to put together an honest budget all day."

Stopgap Solutions

The Community Counseling Centers of Chicago is another of those workaday groups that are like the stitches on a baseball, holding together poor and working-class neighborhoods. With an annual budget of $16 million, the agency tends to families torn by crime and violence as well as people who are psychologically stressed and abusing drugs.

On any given Monday morning, the agency's chief administrative officer, John J. Troy, 61, has no idea how he is going to keep its doors open until Friday. He said the state had not come through with an expected $2.2 million, which is about six months of arrears. He has laid off and recalled employees three times in the last two years.

"Two weeks ago, I had days to meet my $420,000 payroll and all I was looking at was a $200,000 line of credit from a bank," recalled Mr. Troy. "I drove down to Springfield and said, 'Hey, you owe us $3 million.' They said: 'Oh, that's nothing. We owe another agency $10 million.' "

"The fact of the matter is," he added, "I don't sleep much these days."

Illinois's fiscal practices are thoroughly fractured. Large agencies survive from one payday to the next. Small agencies seek high-interest loans from out-of-state finance companies.

The state pension system is a money sinkhole and the most immediate threat. The governor and legislature have shortchanged the pensions since the mid-1990s, taking payment "holidays" with alarming regularity.

The state's last elected governor, Rod R. Blagojevich, is on trial for racketeering and extortion. But in 2003, he persuaded the legislature to let him float $10 billion in 30-year bonds and use the proceeds for two years of pension payments.

That gamble backfired and wound up costing the state many billions of dollars. Illinois reports that it has $62.4 billion in unfunded pension liabilities, although many experts place that liability tens of billions of dollars higher.

Legislators this year raised the retirement age and slashed benefits. Though changes apply only to future employees, the legislature claimed immediate savings.

"Savings upfront and reforms down the road," said Mr. Hynes, the state comptroller. "It's just bad habits and bad practices."

More broadly, Illinois is caught between blue state convictions about social safety nets and a red state aversion to taxes. For years, the Democratic-controlled legislature has passed budgets that are, in effect, in deficit. Lawmakers routinely skip around the state's balanced-budget law, with few consequences. (Republicans are near monolithic in voting against any tax increases and borrowings. When one broke ranks to try to keep the pension solvent, he was stripped of a committee position, reducing his pay and pension.)

"The pension move was Enron-esque," said Mike Lawrence, a press secretary to the former Republican governor Jim Edgar, who was the last governor to sign an income tax increase. "Blagojevich was not a tax-and-spend governor; he was a spend-and-borrow governor."

The state's income tax burden is not terribly high - Illinois ranks in the bottom half of states - and its government is not terribly large. (The budgets in New York and California, per capita, are much larger). Even if the state cut out all family and human services spending, more than half of the budget deficit would remain.

As comptroller, Mr. Hynes has trained his attention on the public and nonprofit agencies that rely on state money; he tends to roll his eyes at the notion that slashing alone is a solution.

"Only the most delusional people think you can solve this without raising taxes," he said.

The legislature has a different instinct: to borrow. In good times, that leads to unsightly imbalances. In bad times, it becomes catastrophic. This year, leaders gave the governor authority to move money around and left town to campaign.

"Each budget has gotten historically worse during this recession," said Laurence Msall, president of the Civic Federation, a policy research organization. "We've borrowed more and pushed larger unpaid bills into the future."

'Everything Is Triage'

So where is the exit door from this crisis? In Illinois, it depends on whom you ask. The state representative Barbara Flynn Currie, one of the Democratic leaders in the statehouse, sees salvation in the economic cycle. "In the long run, we'll muddle our way through," she said.

Perhaps, but many analysts, liberal and conservative, warn of a potentially far grimmer reckoning - Greece by Lake Michigan. Borrowing costs are rising, nonprofits that depend on taxpayer money are dropping contracts, and the state's pension costs and unpaid bills balloon each month.

Newspaper reports offer stories of hundreds of young teachers moving out of state. Sounding as if she had been punched in the stomach, Ms. Johnson, 53, the pharmacist in Beardstown, said she was going to work at Wal-Mart. Mr. Troy keeps logging on to the comptroller's Web site to see whether money might soon flow to his counseling centers.

And Ms. Holwell has joined Illinois People's Action, which challenges banks and foreclosures. With a raspy voice, she talks of her irritation with "the people who just yammer."

"We've helped save four houses," she said. "Now I wonder: can I save my own?"

For now, Illinois spends a minor fortune papering over its budget holes. Last year, the comptroller's office paid $55.3 million just in interest on two short-term borrowings to pay the state's bills.

Mr. Hynes walked into his child's elementary school recently and learned that kindergarten hours were being cut because of the state budget.

"Everything is triage now," he said. "We work to avoid outright disaster."

In past years, when nonprofits needed credit lines to see themselves through tough budget times, the comptroller issued letters assuring banks that vendors would be paid. Not anymore.

"I don't feel comfortable doing that," he said, adding with a shrug, "I mean, who knows, right?"

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Security in Local and State Government Jobs Declining

For years, most people who worked for state or local governments accepted a
fact of life: Their pay wasn't great. The job security was.
Reporter: Associated Press

For years, most people who worked for state or local governments accepted a  fact of life: Their pay wasn't great. The job security was.

Now that's gone, too.

States and municipalities are facing gaping budget gaps. Many have responded by slashing services, raising taxes and, for the first time in decades, making deep job cuts.

And public employees should brace themselves: Some economists say the job cuts could worsen in the second half of the year.

Those government layoffs make it harder to reduce the national unemployment rate, now 9.5 percent. The rate did fall slightly in June because more than a half-million out-of-work Americans gave up their job searches. Once people stop seeking work, they're no longer counted as unemployed.

The economy is already under pressure from weak consumer spending, sinking stock prices, a European debt crisis and a teetering real estate market.

"It's certainly a drag on economic growth in our outlook," Mark Vitner, an economist at Wells Fargo, said of the loss of public-sector jobs.

It's also a burden for residents. As state and municipal employees are cut, so are services. It takes longer to register a car, see a school nurse or travel to work by bus.

In California, state-run Department of Motor Vehicle offices have been closed on selected furlough Fridays to cut costs.

In New York City, a new budget will close up to 30 senior centers, shutter a 24-hour homeless center in Manhattan and eliminate nurses at schools with fewer than 300 students.

In Atlanta, the metro transit agency shut 40 bus lines and closed restrooms in June. Even so, 300 employees might lose their jobs to close a $69 million budget gap.

Julie Bussgang used to have assistants to help her keep order in her kindergarten classroom in Albany, Calif. Last year, those assistants were cut. Bussgang was left on her own.

"I've had kids calling for help from the bathroom, and I was alone with 24 kids," she says. "We got through far less of the curriculum than we did in the previous year. Everything took longer."

State and local governments cut 95,000 jobs in the first half of the year even as the economy slowly recovered. Private employers, by contrast, added 593,000 jobs in that time. It's the first time the public sector has cut jobs while the private sector has added jobs since 1981, said Marisa Di Natale, a director at Moody's Economy.com.

In the second half of the year, 152,000 more local and state government employees will be laid off, estimates Nigel Gault, an economist at IHS Global Insight.

Counting companies that work with state governments, a total of 900,000 jobs could be lost to states' budget shortfalls, according to the Center on Budget and Policy Priorities, a think tank in Washington.

From teachers and probation officers to recreation workers and transportation specialists, public employees who never imagined their jobs could be in jeopardy are discovering they are.

They are people like 24-year-old Brianna Clegg, who had never hesitated to take on school loans in pursuit of her teaching certificate.

"I was always hearing, 'There's a huge need for teachers.'"

Yet as California's budget crisis mounted last year, thousands of teaching jobs were slashed. One was Clegg's job teaching fourth grade in Stockton, Calif.

When she sought another position, she made a grim discovery: In a state in which roughly 26,000 teachers have been laid off, openings existed for 39 teachers. Clegg wasn't among the fortunate few.

Across the country, the trouble stems from shrinking state income and sales tax revenue, a consequence of the recession. Total state revenue dropped 11 percent from fiscal year 2008, when the recession began, to fiscal 2010, according to the National Association of State Budget Officers.

Compounding the problem, Democrats in Congress have failed to come up with the votes to spend about $50 billion to help states pay for Medicaid programs and avoid teacher layoffs. Governors made a plea for the money to help them avoid layoffs. Kansas Gov. Mark Parkinson said his state might have to lay off 3,600 teachers.

Senate Republicans have argued that the nation can't afford further spending in light of record-high budget deficits.

Until recently, state governments had been able to paper over some of their funding shortfalls with money from last year's $787 billion federal stimulus package. Now that's drying up. As a new fiscal year begins this month in most states, they're struggling to balance their budgets, as required by every state but Vermont.

So they're cutting services and laying off employees.

"We do expect more layoffs to come," Vitner said. "State and local governments are having to make the cuts they didn't have to make a year ago."

Hardest hit have been states - like California, Arizona and Nevada - whose housing markets had overheated and then deflated, said Brian Sigritz of the National Association of State Budget Officers. But budget crises have spread nearly everywhere. About 46 states face total budget gaps of at least $112 billion this year, the Center on Budget and Policy Priorities says.

At least 26 states have cut jobs this year to try to close budget deficits. Five others have imposed temporary layoffs. Their tight budgets have led many states to shift more spending burdens to localities, adding to budget problems in many cities.

For every worker who's been laid off, many others worry that they're next. The sense of long-term security that once attached itself to a state or local government job is gone.

One of them is Daryl Seaman, who was so confident in his job security just a year ago that he built a new home for his family. As a probation officer for Madison County, Ill., he didn't think his job would ever be in jeopardy.

Twelve months later, Seaman has been demoted because of county budget cuts. He finds himself obsessing with co-workers over the next round of layoffs that could claim their jobs.

"Everybody is panicking," Seaman says.

Seaman's wife teaches in a district that has laid off some teachers with less seniority. With two teenage daughters to support, they're saving everything they can.

"We're just afraid to spend any money," Seaman says.

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Week of July 5, 2010

States of Crisis for 46 Governments Facing Greek-Style Deficits

LFM Note: I have been on record for a long time warning about the unsustainability of the massive deficits in the U.S. Equally, I wrote articles several years ago about the cost of leave benefits, not even realizing at that time that pension benefits would become such a focus. I have also cautioned that the opportunities for unionization have never been greater. Even when the general public has accepted the need for sacrificing, it seems that it is the public sector that is protesting the loudest with threats of all kinds.

My position has not changed but rather has strenghtened regarding things such as the deficits. However, I want to add an observation. If even a fraction of the pledges to reduce national and state deficits come true, which I hope is the case, I believe we are guaranteed to have not only a double dip recession but an even more protracted dampened economy for the foreseeable future. It has to be that way.

If the great wave of unprecedented growth that has occurred for the 20 year period 1987 through 2007 was based on spending money we did not have (at the federal and state level as well as at the personal level), then the anomolay was in the past, not what we will face in the future. Even the small bump we have gotten from stimulus money that added to the extreme U.S. deficits, barely moved the needle and is on the downside.

The trap that was set decades ago, as explained on a chalkboard by an economics professor I had back in the late 1960's, is all coming true in every way. In fact, it would be impossible, in my opinion, that every elected official from every party in every year for the last 40 or 50 to not know this day would come.

The big laugh of "boy, are we leaving a ton for our grandchildren" is going to be on us. The baby boomers will not be able to get to the grave fast enough thanks to the acceleration of deficits that started in the 1980s, ramped up in the 1990s and has gone exponential in the 2000s.

It will not be all bad. It will just be different. Way different from the last 20 or 30 years but much like before then when people and countries lived closer to their means. And when deficits were incurred in times of war, and then paid down in subsequent years. Until Viet Nam.

The non-stop wartime financing compounds the problem. But the problem is much greater than that and is in the politics of government at all levels. The accountants will rejoice to know that the disclosure of the threat of an "ongoing concern" is finally at hand. That is common in business, and is now becoming acceptable and frequent jargon for governments. Except it may be too late to stop. Assets evaporate or move over to the liability side of the balance sheet. Revenues have to equal expenditures. This is basic arithmetic, folks.

This is an addiction to the good times financed by something we don't have. It never was real. But the pain of withdrawal is very real. Cut the deficits. Balance the budgets. Return to the basics in every aspect of life.

But the possibility to have budgets based on rightful austerity and then have robust economies are incongruent ideas. We have sacrificed the former to have the latter. That has got to shift. But we won't have both. LFM

--------------------------------------------

States of Crisis for 46 Governments Facing Greek-Style Deficits

Bloomberg News
By Edward Robinson

June 25 (Bloomberg) -- Californians don't see much evidence that the worst economic contraction since the Great Depression is coming to an end.

Unemployment was 12.4 percent in May, 2.7 percentage points higher than the national rate. Lawmakers gridlocked over how to close a $19 billion budget gap are weighing the termination of the main welfare program for 1.3 million poor families or borrowing more than $9 billion in the bond market. California, tied with Illinois for the lowest credit rating of any state, is diverting a rising portion of tax revenue to service debt, Bloomberg Markets magazine reports in its August issue.

Far from rebounding, the Golden State, with a $1.8 trillion economy that's larger than Russia's, is sinking deeper into its financial funk. And it's not alone.

Even as the U.S. appears to be on the mend -- gross domestic product has climbed three straight quarters -- finances in Arizona, Illinois, New Jersey, New York and other states show few signs of improvement. Forty-six states face budget shortfalls that add up to $112 billion for the fiscal year ending next June, according to the Center on Budget and Policy Priorities, a Washington research institution. State spending is 12 percent of U.S. GDP.

"States are going to have to cut back spending and raise taxes the same way Greece and Spain are," says Dean Baker, co- director of the Center for Economic and Policy Research in Washington. "That runs counter to stimulating the economy and will put a big damper on the recovery in the latter half of this year."

Stimulus Dries Up

State budget woes are a worsening drag on growth as the federal government tries to wean the economy from two years of extraordinary support. By Jan. 1, funds from the $787 billion federal stimulus bill will dry up. That money from Washington has helped cushion state budgets as tax revenue has plunged.

State leaders won't be able to ride out this cycle the way they have in the past. The budget holes are too large. For the first time since 1962, sales and income tax revenue fell for five straight quarters, through December 2009, according to the Nelson A. Rockefeller Institute of Government at the State University of New York at Albany.

Lawmakers need to overhaul tax policy, underfunded public pensions and entitlement spending programs such as Medicaid if they want to establish long-term plans that will foster growth, says former New Jersey Governor Christine Todd Whitman.

If they fail to act, state fiscal positions will steadily erode and hurt the U.S. economy through 2060, according to a March 2010 report prepared for Congress by the U.S. Government Accountability Office.

'Major Surgery'

"States don't have a choice anymore," Whitman says. "These problems are going to require major surgery."

Reform may get short shrift as Republicans and Democrats intensify their age-old fight over taxes and spending in this election year. On May 20, New Jersey Governor Chris Christie vetoed a Democratic bill that would have raised income taxes for residents earning at least $1 million a year to help close an $11 billion deficit. Christie, a Republican, wants to cut spending for school districts and cap property tax increases.

"At some point, the people's ability to pay runs out," Christie said in a speech in New York on May 25.

The widening deficits have led to some unorthodox moves. In California, the state grabbed $1.7 billion in redevelopment money from local governments in May. Riverside County, a Los Angeles suburb where the housing bust has left unemployment at more than 15 percent, lost $28 million that had been set aside to build fire stations, senior centers and other public works.

Jobs or Education

The projects would have created 3,000 jobs, says Tom Freeman, spokesman for the county's Economic Development Agency. The government needed the county cash for schools, says Aaron McLear, spokesman for Governor Arnold Schwarzenegger.

The episode demonstrates how the fiscal mess pits job creation against education in a zero-sum game, says Robert Hertzberg, the Democratic speaker of the State Assembly from 2000 to 2002. California is locked in a rigid system in which legislators need a two-thirds majority to raise taxes and yet must comply with voter-approved initiatives that mandate prison construction and other spending.

There's little chance of any sweeping changes this year ahead of a gubernatorial race between Republican Meg Whitman, former chief executive officer of EBay Inc., and Attorney General Jerry Brown, a Democrat who was governor from 1975 to 1983.

'So Dysfunctional'

The winner will have to muster the political courage to take on core constituencies, whether anti-tax conservatives who support Whitman or labor unions that back Brown, says Steve Westly, California's Democratic treasurer from 2003 to 2007.

The risk is that California ends up like Greece, with no one trusting that it can get its financial house in order, says Westly, now a venture capitalist in Menlo Park. "It has to be a combination of cuts and revenue increases," he says.

Still, California isn't Greece. It's home to Silicon Valley, Hollywood and a $27 billion agriculture industry. "It's unbelievable," says Bob Nichols, CEO of Windward Capital Management Co. in Los Angeles. "How do you screw up a place with the growth capability of California? It's so dysfunctional."

---

 

HR Legal Briefs by Audrey Mross

Welcome to Legal Briefs for HR, an update on employment issues sent to over 4700 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you'd like to be added to the list and you're in! Back issues are posted on my firm's website at www.munckcarter.com under E-Newsletter. Welcome to new readers who attended my presentation to the Texas Association of Community College Human Resource Professionals Conference in San Antonio on June 16! I look forward to presenting at the Texas Employment Relations Symposium in San Antonio on July 15 . . . hope to see you there! Go to www.txbiz.org for agenda and registration info.

Here's the latest:

1. Texas Tough - Want to sue your employer in Texas and collect damages for sexual harassment under the Texas Commission on Human Rights Act (TCHRA) AND for their alleged negligence in supervising and/or retaining the harasser? Tough! The Texas Supreme Court said "As the complained-of acts constitute actionable harassment under the TCHRA, they cannot moonlight as the basis for a negligence claim, a claim that presents far different standards, procedures, elements, defenses and remedies. It is untenable that the Legislature would craft an elaborate anti-harassment regime so easily circumvented." Waffle House v. Cathie Williams (Tex. 6-10). The case involved a waitress who claimed she was subjected to offensive sexual comments, gestures and touching at the hands of a cook, and that her verbal and written complaints to local and corporate management went unanswered. Her claims were filed as both statutory (i.e., TCHRA) and common law (i.e., negligence), a common practice designed to allow the plaintiff to elect the more generous award, which is normally the latter since TCHRA recoveries are capped at $300,000 for both compensatory and punitive claims. If this outcome sounds familiar, you may be remembering Hoffman-LaRoche Inc. v. Zeltwanger (Tex. 2004), where the Court held that a claim for intentional infliction of emotional distress (another tort, like negligence) was not available to the alleged victim of sexual harassment because the TCHRA provided a remedy for essentially the same actions and that IIED claims were a "gap-filler" where another remedy is not available. Yours truly wrote one of the amicus briefs (on behalf of SHRM Texas State Council) in the Zeltwanger matter. Glad to see the basis for the holding in that case is still going strong!

2. Supreme Pizza - A sampling of tasty decisions from the U.S. Supreme Court:
1. Can't Count on It - Nearly 600 decisions issued by the National Labor Relations Board between Jan. 2008 and March 2010 are on thin ice after a finding that the two-member board lacked authority to issue decisions, due to a three-member quorum requirement when delegating authority. New Process Steel LP v. NLRB (U.S. 6-10).

2. Watch Your Monitor - In a case that affects public sector employers (and likely will inform the private sector, too), the City of Ontario "did not necessarily" violate a police officer's 4th amendment rights by looking over transcripts of the officer's use of a City-issued pager. The Court found the employer's action reasonable, where the review was done to determine whether the existing wireless service contract service, which had a monthly limit on text messages, was sufficient to meet the City's needs and to make sure employees were not forced to pay for work-related expenses or that the City was paying for purely personal communications. While reviewing the officer's texts, the police department found and eventually disciplined the officer for, shall we say, excessive, inappropriate content of a personal nature sent during work time. This case was decided on narrow grounds and should not be seen as a free pass for employers (or certain employees, such as IT staff) to freely browse employees' personal emails, texts and other messaging. But if you've got a pretty strong business reason, a properly worded policy and conduct the search in the correct way, your defenses against privacy claims should hold up. Ontario v. Quon (U.S. 6-10).

3. Careful What You Wish For - With a slim 5-4 majority, the Court upheld a provision in a pre-employment agreement to arbitrate (not litigate) employment-related disputes, including enforceability of the agreement itself. The employee wanted a court to declare the entire agreement unenforceable because it was unconscionable (read: unfair) and the 9th Circuit agreed with him, but the Supreme Court did not. The dissent would've liked the matter to be heard by a court based on their belief that arbitration agreements in the employment context can be more troubling than those between two business entities. Rent-A-Center West Inc v. Jackson (U.S. 6-10). For now, a well-crafted arbitration agreement may keep employers out of court (Hurrah!) but this decision may also hasten enactment of a federal bill that's meant to nix use of mandatory arbitration in the employment context. See H.R. 1020 & S. 931 at http://thomas.loc.gov for full text and status of the Arbitration Fairness Act of 2009.

4. Time Bomb in Your Files? - City applicants took a written exam in 1995 and their numeric scores were used to classify them into three categories of eligibility for hire (i.e., well qualified, qualified, not qualified). The scores were used in 1996 to make hiring decisions. The "qualified" folks who were not hired sued in 1997, claiming the exam had a disparate impact on African-Americans, in violation of Title VII. The issue before the Court was whether the EEOC charge, which is required prior to filing suit, was timely filed. That means within 300 days of the latest discriminatory act, in most jurisdictions. The City said assigning classifications in 1995 was the act. Plaintiffs said using the classifications to deny employment in 1996 was the act. The Court agreed with the plaintiffs and found the EEOC charge had been timely filed. Lewis v. City of Chicago (U.S. 5-10). Upshot? Those test scores sitting in an applicant's or employee's file can form the basis for a "new" act of discrimination when they are used to make a hire, promotion or other employment decision. Review your testing tools (and your hiring/promotion numbers) to see if they put you at risk for a disparate impact claim.

3. No Vacancy - It's no secret that an employer may be required to reassign a disabled employee to a vacant position, as a form of reasonable accommodation under the Americans With Disabilities Act. But what does "vacant" mean? Finding the EEOC's description "too broad" and no case precedent, the 10th Circuit held that that it means the job opening would be available for a similarly-situated non-disabled employee to apply for and obtain. Where the job desired was occupied by temporary workers supplied by an agency, as an interim measure prior to completely out-sourcing the department. there was no "vacancy" and no employer failure to accommodate by offering these unavailable jobs. Duvall v. Georgia Pacific Consumer Products (10th Cir. 6-10).

4. Dot Your I's and I-9's - Heads up, folks who are in charge of completing the Form I-9 on behalf of your employer. A March decision from Dep't of Justice's Office of the Chief Administrative Hearing Officer says an employer's failure to complete Section 2 of the Form I-9 within three business days of the employee's hire is a substantive violation, not a technical one. Unlike technical violations, there is no opportunity to correct substantive violations and the penalties can be steep. So, fill in that section completely, including title of the document(s) being relied upon, identification number(s) and expiration date(s) or attach copies of the document(s) to the Form I-9.

5. Who's Your Daddy? - You may have more than one, under Administrator's Interpretation No. 2010-3 , issued by the U.S. Dep't of Labor (DOL). In clarifying the definition of "son or daughter" under the Family Medical and Leave Act, the DOL explains that in addition to biological and legal (e.g., adoption, guardianship) relationships between parent and child, in loco parentis relationships should be interpreted to include persons who provide day-to-day care or financial support and "Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA."

6. Redressed - In the continuing donning/doffing saga, the DOL upended Bush-era interpretations of "changing clothes" in a way that may change the way you pay certain non-exempt workers under the FLSA. Per Administrator's Interpretation No. 2010-2, 29 USC sec. 203(o) says time spent changing clothes or washing at the start or end of work shift is not compensable if the time is excluded by "the express terms of or by custom or practice under a bona fide collective bargaining agreement." DOL had seen protective equipment as being a type of "clothes" but now reverses those opinions and says that the 203(o) exclusion from compensable time does not apply to the donning/doffing of protective equipment that is required by law, by employer or due to the nature of the job. The changed meaning is impactful because DOL is now saying that clothes changing, including protective equipment, may be a principal activity and if so, subsequent and prior activities like walking and waiting will be compensable. As explained in IBP Inc. v. Alvarez (U.S. 2006), all activities occurring after the first principal activity and before the last principal activity are compensable . . . employers do not get to turn the time clock off to account for periods of idleness, such as walking and waiting, with exceptions for when an employee clocks out for lunch, personal errand, etc.

7. Off the Clock is Off the Hook - A clothing retailer has settled a wage and hour class action for $4 million. After clocking out, employees claimed they were required to wait in the store for up to 30 minutes, to allow inspection of their personal bags and belongings as part of the loss prevention program. Multiply those unpaid minutes each day times a class of 6700 employees from May 2002 to January 2010 and you get . . . pain. Otsuka v. Polo Ralph Lauren Corp. (N.D. Cal. 5-10).

8. Feeling Regular? - When do monies paid as per diem get rolled into a nonexempt employee's "regular rate" and count towards overtime payments? When the hourly rate appears artificially low for the job being done and/or when the per diem is paid as an hourly rate rather than a flat amount. The 5th Circuit sided with the employee, a skilled airplane painter, who was being paid $5.50/hour for nonovertime work, $20/hour for overtime work and $12.50/hour per diem, by awarding him $4,267 in back pay, $4,267 in liquidated damages and $55,908 in attorney's fees. Gagnon v. United Technisource Inc. (5th Cir. 5-10). The Court conceded that a true per diem can be excluded from the "regular rate" but they were suspicious that this was a scheme to reduce the amount of overtime paid.

9. Stated Differently - Here is a collection of developments at the state and local law level that may be of interest:
1. Iowa - Effective July 1, IA has a "mini WARN" law which is more onerous than its federal sibling. A closing or mass layoff that impacts 25+ full-time employees or a layoff impacting 25+ employees in a 30-day period triggers notice to employees or their reps and the IA Dep't of Workforce Development.

2. Wisconsin - Effective May 27, state law prohibits employer discrimination against employees who refuses to attend an employer-sponsored meeting or participate in communications with the employer that revolve around religious or political matters. "Political matters" is broadly defined to include "the right to join or not to join" a union, which is contra to sections 7 and 8 of the federal National Labor Relations Act. If challenged on those grounds, the new law is likely preempted but use caution until that little problem is resolved.

3. Kansas - Effective July 1, no smoking in an enclosed area of any public place or place of employment, including restaurants and bars and communicate the prohibition (preferably in writing) to your employees within one week of July 1, and to all new hires as they come on board.

4. New York City - The NYC Council is batting around a bill that would require employers to offer paid sick time to their employees, similar to what's in place in San Francisco and Washington D.C.

10. For the Birds - If you like being tweeted and want breaking news on employment law changes, follow me on Twitter. I'm at @amross.
Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

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Week of June 21, 2010

Lewisville schools proposal on Web conduct raises free speech concerns

By WENDY HUNDLEY
The Dallas Morning News
09:32 PM CDT on Wednesday, June 9, 2010

Angela Armstrong is proud to be a teacher and never thought twice about making references to her profession on her Facebook page.

But those online remarks could get her into trouble under a recent proposal presented to the Lewisville school district. It would prohibit employees from criticizing the district or even affiliating themselves with the school on social networking sites.

"What a disappointment to read that I can no longer affiliate myself with a district I'm proud to work for," Armstrong told the Lewisville school board at its May 17 meeting.

The second-grade teacher at Camey Elementary School said the proposed rules restrict her right to free speech and could invite a lawsuit.

"Are you really willing to take on the First Amendment of the United States Constitution?" she asked.

With the growing popularity of blogs, podcasts, Twitter and other online social media, school districts are beginning to develop policies that govern the use of these emerging technologies.

The Texas Association of School Boards is drafting new policy language that addresses how employees should use social networking sites, even on their own time and on their own computers.

"For several years, districts have been wanting specific statements about social media in their policies," said Carolyn Counce, the association's director of policy service. "They're trying to keep their policies updated with the technology."

While the model policy isn't expected to be finalized until the fall, she said it will address what's expected of employees when they're posting information that could be accessed by students.

"We've all heard about teachers putting up something inappropriate," she said.

A New Hampshire English teacher was accused this year of sending naked photos of herself and sexually explicit text messages to a 15-year-old student. Melinda Dennehy has been charged with indecent exposure.

Dennis Connor, a 27-year-old aide at Garland's Naaman Forest High School, was recently accused of raping a student and having a "sexting" relationship with another.

A lawsuit filed by parents of a former student at the Episcopal School of Dallas refers to more than 3,800 e-mails, instant messages or pornographic texts sent between a teacher and their daughter. The lawsuit alleges that J. Nathan Campbell had a sexual relationship with the teen for seven months.

Although school districts prohibit teachers from having inappropriate relationships with students, "they're limited on the actions they can take on what [employees] can post online on their own time," Counce said. "They can take disciplinary action if something outside the classroom affects the employee's performance."

The new language is designed to help ensure that employees "are held to the same professional standards through social media as other venues," she said.

She speculated that school administrators probably aren't the only ones concerned about what employees broadcast via cyberspace.

"I would imagine almost every employer is struggling with this issue," Counce said.

But that struggle cannot infringe on employees' rights, said Marc Rotenberg, executive director of the Washington, D.C.-based Electronic Privacy Information Center. While employers have a legitimate need to protect their interests and public images, he said, employees have a right to express themselves. "Both need to be taken into account," he said.

Most of the Lewisville school district's six-page "Network Access General Use Guidelines for Employees" deals with routine regulations about cyber-bullying, hacking and accessing inappropriate material.

But two sentences raised a red flag for Armstrong: "Non-instructional social networking sites should not contain references by the staff member to any affiliation with LISD. A staff member's web presence must reflect positively upon the district, department and/or school."

Armstrong said she understands the need to be professional on social networking sites, but she said this section goes too far.

However, she said she was confident that her concerns were heard and was pleased that the school board declined to take action at the May meeting.

"I believe they understood it was worded too strongly," she said.

School board trustee Brenda Latham agreed.

"This is crossing a line," Latham said of the proposed rules for employees. "We can't mandate what they say or don't say on their own time with their own technology."

District spokeswoman Karen Permetti said the guidelines are being rewritten and will be presented at Monday's meeting.

"The purpose was not to hinder First Amendment rights but to communicate appropriate behavior for social networking," she said.

Julie Leahy, a staff attorney for the Texas Classroom Teachers Association, said that can be done without impeding free speech.

"More teachers are participating in these social networking sites," she said. "They're helpful, they're fun, and they should have the right to do so without affecting their employment."

At the same time, teachers should use them with care.

"We advise them to delineate between their public and private roles," Leahy said. Don't "friend" students. Use settings that prevent public access to personal information.

She also warned teachers to be mindful of the information posted on these sites.

"Most teachers recognize that school districts want to ensure appropriate conduct," Leahy said. "The best policy would be one that ensures if a teacher does have communication to post on the Internet, it would be limited to the intended group of people."

 

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Public officials' use of social media sparks debate

Posted Saturday, Jun. 12, 2010
By DAVE LIEBER
Star Telegram

You thought Facebook and Twitter were ways to tell the world what you had for breakfast? Or that cellphone texting means you can ask your spouse what's for dinner?

Well, what about school board and City Council members who use those social media and communication tools to subvert the concept of open government?

The council member who text-messages another member during a meeting and asks, "How am I supposed to vote?"

The school board members who use Facebook's private chat to decide which contractor should get hired for a multimillion-dollar job.

According to state law, officials are not supposed to deliberate or discuss public matters at any unannounced meeting held in private. And the public has a right to inspect or copy many government records, which can include e-mail and other electronic postings.

The Texas attorney general's office is strict about that.

But the new communication tools have become "second nature" to everyone, including public officials in Texas, said William McKamie, a San Antonio lawyer who serves as city attorney for several municipalities. People feel more uninhibited about communicating when using them, he said.

That can lead to trouble.

It did lead to two debates Friday in Fort Worth at the annual meeting of the State Bar of Texas.

McKamie suggested that state lawmakers clarify rules about social media for public officials, and he bristled at the idea that elected officials should be so limited in discussing public business.

Sitting beside him on an open-government panel, Wanda Garner Cash, a University of Texas journalism professor, had a different view. The Texas Public Information Act, she said, should apply to all forms of communication. That includes, as an example, smartphones regardless of who owns or is paying for them, she said.

"I disagree with that," McKamie said.

Cash cut him off: "Public communication is public communication." Even if an official uses a personal cellphone to discuss public business, it's still subject to the state law, she said.

But McKamie said public officials "don't give up their First Amendment rights when they get elected to an office."

"It has nothing to do with First Amendment rights," Cash countered. "It has to do with conducting business -- whether it's done on your home phone or your office phone."

The debate is no longer just theoretical.

Several Texas cities and public officials (including Arlington City Councilman Mel LeBlanc) have sued to remove the criminal penalties in the state's Public Information Act. A trial is scheduled for fall in a Pecos federal courtroom.

As Rod Ponton, Alpine city attorney and a lead lawyer on the case with Houston attorney Dick DeGuerin, explained it at a second panel discussion Friday: "The First Amendment was written more than 200 years ago and, of course, we didn't have Twitter. We didn't have e-mail. We didn't have electricity. But the idea was that political speech should be protected."

Ponton said the state law has had a chilling effect on elected and appointed officials' communication because they are afraid that they could go to jail for up to six months if caught breaking the law.

State Rep. Carol Kent, D-Dallas, also on the panel, said that during her five years as a Richardson school board member, the threat of a criminal conviction "certainly yanks your chain a little bit, and it gets your attention."

"When you come into office and you take the oath, you know you're going to face a higher level of scrutiny for the conversations that you have.

"You have to behave differently. You're going to have to be more careful about the things you do, the things you say."

Ponton called that unfair. "Public officials shouldn't lose their rights to speak," he said.

Hardly, according to panelist Keith Elkins, executive director of the Freedom of Information Foundation of Texas. He said his group could find only one example in 40 years where a Texas elected official was convicted and served jail time in such a case.

"I don't think there is a real rush to the courthouse where overzealous prosecutors are trying to put elected officials in jail. ... We hear pretty much hear the opposite."

People contact a district attorney for help when they believe that their elected officials violated the open-meetings law with private deliberations, but prosecutors don't want to take the case, he said.

What's more, "if you only had one violation, something must be working."

But Ponton said the use of social media may lead to more prosecutions. "Because if tweets go around, or e-mail or Facebook, the discussion of public matters is not posted," he said. "Now you have an electronic trail which proves there has been political discussion among a quorum, and they could be indicted."

Kent agreed that it was "chilling in a sense" but said that it was also "being ethically responsive to the notion that the public has a right to know what a school board is thinking about or discussing."

While McKamie called for state lawmakers to rewrite rules, Cash said little needs to change. Whether you're conducting public business "in an official meeting or on the hood of a pickup truck," she said, it's still the people's business.

What do you think?

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Pension Plans Go Broke as Public Payrolls Expand: Joe Mysak

Bloomberg News
Commentary by Joe Mysak

June 11 (Bloomberg) -- Seven states will run out of money to pay public pensions by 2020. That hasn't stopped them from hiring new employees.

The seven are Illinois, Connecticut, Indiana, New Jersey, Hawaii, Louisiana and Oklahoma, according to Joshua D. Rauh of the Kellogg School of Management at Northwestern University. Combined, they added 9,700 workers to both state and local government payrolls between December 2007 and April of this year, says the U.S. Bureau of Labor Statistics.

This number, 9,700, illustrates just how hard it is for political leaders to reduce headcount even as tax revenue declines, and even as the gap grows between what governments owe their workers in retirement pay and benefits and the amount they have on hand.

Hard? It's almost impossible, as that number shows.

Politicians have talked a lot about layoffs during this recession. In most cases, that talk is an empty threat. Nobody wants to fire teachers, or firemen, or policemen, in the name of efficiency or good government.

It's easy to get passionate about the subject. Let's take a look at the numbers.

Companies started firing more employees than they hired in January 2008. After pausing in November 2009, they fired more in December. With the economy starting to turn around, they have hired more than fired every month so far this year.

Since the Peak

Employment peaked in December 2007 at 115.6 million, according to the U.S. Department of Labor. During the subsequent two years, companies shed 8.5 million workers, or 7.3 percent.

State and local governments, by contrast, kept hiring right through August 2008. From a peak of 19.8 million, these governments have reduced headcount by 231,000, or 1.2 percent.

This breaks down to 46,000 fewer employees on the state side (0.9 percent) and 185,000 among local governments (1.3 percent).

And this, I think, is what drives people crazy. What our politicians are telling us is that state and local governments are optimally sized -- just right. If tax revenue declines, well, then we'll just have to find more taxes and fees to replace it. We couldn't possibly look at the cost-of-labor side of the equation.

Doesn't that strike you as a tad arrogant and entitled?

If you really want to provoke outrage, of the same populist stripe that once targeted bankers' bonuses, you have to take into consideration public pensions.

Enviable Dotage

Generous and bloated are the terms that have been used to describe them; critics have set up websites to pillory those government retirees who enjoy $100,000-plus annual pensions and other goodies, such as health-care benefits for themselves and their families for life.

These pensions and benefits are enviable, not to mention envied by all those private-sector employees who long ago were forcibly weaned off such defined-benefit programs to 401(k) plans that were subsequently shellacked by the stock market crash.

What's equally clear is that such pensions and benefits now seem unaffordable, because those responsible -- state and, sometimes, local governments -- didn't put away enough, or haven't invested wisely enough, to pay for them.

"Are State Public Pensions Sustainable? Why the Federal Government Should Worry About State Pension Liabilities" is the title of Rauh's recent study. It's a provocative piece of work, especially for one of its tables, titled, "When Might State Pension Funds Run Dry?"

Circle 2018

Not everyone may agree with Rauh's conclusions or methodology. He did get my attention with that table, showing Illinois running out of pension-fund assets in 2018; Connecticut, Indiana and New Jersey in 2019; and Hawaii, Louisiana and Oklahoma in 2020.

That's when I consulted the website of the Bureau of Labor Statistics and was surprised, or perhaps nonplussed is the word, to discover that the state and local governments in these states, combined, added employees even as private companies were firing.

They have joined other state and local governments in firing workers since the peak of August 2008. That month, the seven states and their local governments employed 2,714,800 workers. They have since shed 20,300, and now employ 2,694,500. That's still more than they carried in December 2007. But I suppose it's a start.

(Joe Mysak is a Bloomberg News columnist. The opinions expressed are his own.)

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City council agrees to take part in prescription discount program

Posted: Wednesday, June 16, 2010 2:00 am
Daily Sentinel

Nacogdoches County residents will soon have the opportunity to receive a 20 percent discount on prescription drugs not covered under insurance following a city council decision Tuesday night to participate in a National League of Cities Prescription Discount Card Program.

Tarah Peace, assistant human resources manager, explained to council members at their regular meeting that the program does not have an age or income requirement, and it even covers pet medications used to treat human conditions.

Peace said to take advantage of the program, which she estimated will roll out in approximately eight weeks, residents will need to pick up a card at select locations that the city will designate to hold stands of the cards.

"You'll be able to just stop by and pick it up at any time," she said. "There is no registration."

City manager Jim Jeffers presented council members with a report on revenue projections for the end of the current fiscal year, identifying an estimated $507,000 shortfall in the general fund, $260,000 increase in the utility fund and $147,000 increase in the sanitation fund.

"With the downturn in the economy, the shortfall with municipalities is not that unusual," he said. "I think that we're in much better shape than a lot of other cities. And because we've been working on those shortfalls, we don't think that you're going to have to see any reduction in city services. We're not proposing that anything be cut. We've asked our department heads to give part of their budgets back and we anticipate that most, if not all, of that deficit will be taken care of by departments not spending all of the money that they've been allocated earlier in the fiscal year."

He noted that when they begin to look at next year's projections, the budget process will be quite conservative.

"You're going to see hardly any capital outlay, you probably won't see any raises. It's going to be a difficult budget but we're progressing in putting that together," he said.

Jeffers said while the decrease in general fund revenue was due in part to decreased property taxes, franchise fees, license and permits and municipal fines, the "problem child" of the shortfall was a $298,000 decrease in the amount of sales tax collected.

He explained to council members that the increase in utility and sanitation funds could not be transferred into the general fund because the city's accounting procedures prevent it.

In other business, council members:

Authorized Nacogdoches County to pave city property on the northeast corner of Nacogdoches County Exposition Center to use as part of the parking lot of the proposed emergency shelter. Jeffers said the piece of land is one the city acquired as a potential fire department sub station, but the city has projected that there is no known use of the property in the foreseeable future.

Received an update of Maroney Pool, which Parks and Recreation Director Kathy Joselyn said she hoped to demolish in the fall of 2010. She identified a host of maintenance problems, including leaking skimmer baskets and low-functioning vacuum. She noted there has also been a significant decline in attendance and estimated the cost of demolition to be $25,000 if done by the city's public works department.

Heard a report on the city's water conservation program from Water Utilities Manager Russell Grubbs. Grubbs said the daily average usage of surface water is 10 million gallons, with a maximum daily production capacity of 28 million. The daily average usage of groundwater is 2 million gallons, with a maximum daily production capacity of 6.5 million. He said when the production reaches 90 percent of the maximum capacity, the city will ask residents for voluntary rationing for seven consecutive days. When the production reaches 92 percent of the maximum capacity, the city goes into mandatory rationing for three consecutive days. "Currently the city of Nacogdoches has plenty of water going into the hot summer, but we just want all the citizens to know that we still need to conserve."

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Week of June 14, 2010

Commissioner to sue attorney general over ruling

By Josh Baugh - Express-News
Web Posted: 06/04/2010 5:26 CDT 3

Bexar County Commissioner Tommy Adkisson refuses to comply with a Texas attorney general's ruling that ordered him to release e-mails in his private
accounts that contain public information. This week he instructed the Bexar County district attorney's office to sue the AG.

The San Antonio Express-News submitted an open-records request under the Texas Public Information Act on Feb. 17, seeking all e-mails between Adkisson and grass-roots toll opponent Terri Hall regarding business of Bexar County and the Metropolitan Planning Organization, of which Adkisson is chairman.

The request sought e-mail correspondence from Adkisson's county-provided e-mail address as well as from two private accounts he maintains. The newspaper is seeking the e-mails because they would offer insight into Adkisson's management style at the MPO.

In an interview this week, Adkisson laid out his reasons for seeking an appeal to the AG ruling, which includes his belief that the newspaper has a pro-toll-road agenda and is trying to penalize him for taking a hard-line stance opposing them.

"I think you've crossed the line between where I have some expectation of privacy and where you believe the public interest is," Adkisson said. "I just believe that it has been one hugely intrusive episode by the Express-News."

The district attorney's office has 30 days to appeal the ruling by filing a suit against the AG in Travis County. Assistant District Attorney Ed Schweninger, who advises the Commissioners Court, said he'll ask a judge to consider a pending legal battle between the city of Dallas and the Dallas Morning News over that newspaper's attempts to access e-mails relating to city business sent and received by city officials on private e-mail accounts.

Schweninger said he wasn't surprised the AG ruled that the e-mails must be released because it's that office's consistent position.

The lawsuit, which Bexar County has yet to file, would have statewide implications. If Adkisson blocks access to his personal accounts, it could create a loophole that would allow public officials to access to public information by using private e-mail accounts to do public business.

Express-News Managing Editor Brett Thacker said he trusts the courts will affirm the attorney general's opinion.

"The business of government belongs in the public eye, even when officials try to go off the grid with their communications," he said.

Keith Elkins, executive director of the Freedom of Information Foundation of Texas, said in fighting the attorney general's ruling, Bexar County is doing a disservice to the public.

"If you disagree with the law, there are ways to change that, and that is to go to the Capitol, talk to the lawmakers and try to get them to amend the act," he said. "It is not to run to the courthouse and try to get judicial activists to undo what state lawmakers have put into law."

Adkisson said he's more interested in the Dallas case, and he doesn't consider the AG's opinion "the final word."

"The attorney general's opinions are not the law," Adkisson said. "They're merely an opinion to what the law is."

 

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City launches website for citizens to balance the budget

BY LESLIE WIMMER
Fort Worth Business Press
June 08, 2010

The city of Fort Worth launched a website aimed at getting input from residents on the city's expected $77 million budget gap for the 2011 fiscal year.

The website includes videos and files of presentations given to the City Council on the budget shortfall and possible solutions, a frequently asked questions section, a section for residents to submit suggestions, and a section for residents to balance the budget themselves by selecting various options for increasing revenue and lowering expenses.

"The budget exercise is designed to be an educational tool," said City Manager Dale Fisseler in a statement. "It's easy for residents to say that they don't want their library or park closed, but it's a completely different thing for them to tell us what new taxes to levy in order to keep those programs in place. I'm very interested to see what choices residents would make to balance the city's budget and these suggestions will certainly play a role in the budget I submit to the City Council."

Fisseler is set to present the City Council with a balanced budget on Aug. 10, but a public input meeting will be held at 5:30 p.m. June 22 at City Hall. After receiving a proposed budget on Aug. 10, public hearings will be held at city council meetings on Aug. 17 and 24, and on Sept. 7. The council is set to adopt a budget on Sept. 14.

"It's imperative that the public is engaged in everything that happens at city hall, not the least of which is the city budget," Mayor Mike Moncrief said in a statement. "It's our fiscal roadmap for the year, and it greatly impacts the lives of all residents. With new technologies at our fingertips, it's important that we use every opportunity to get residents involved."

A link to the budget website can be found on the city's main page at www.fortworthgov.org.

 

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Week of June 7, 2010

Suitless in Seattle: Residents want nude beach

The Associated Press
Thursday, May 27, 2010; 6:27 PM

SEATTLE -- Seattle Mayor Mike McGinn is asking residents what the city needs, and many are warming to the idea of a nude beach.

A clothing-optional beach is in third place Thursday in an online vote on the mayor's website. Far ahead in first and second are expanding light rail and legalizing marijuana, but about 870 people favor going bare in the air.

The thought of shedding duds in the often rainy and cloudy city may give some people goose bumps. But a small number of the suitless in Seattle brave the shores of Lake Washington and secluded but chillier spots on Puget Sound. And in June, there's the Fremont neighborhood's Solstice Parade, where unclad bicyclists with abundant body paint are the norm - rain or shine.

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Missouri City's texting-driving ban starts Tuesday

HOUSTON CHRONICLE
May 30, 2010, 8:01PM

MISSOURI CITY- Starting on Tuesday, Missouri City motorists won't be allowed to text behind the wheel.

Drivers who break the new law could be fined as much as $500, according to Missouri City's website. However, motorists will still be allowed to talk on a cell phone while driving.

The ordinance was passed by City Council in February, the website says. The area joins Texas cities with similar bans, including the Houston area's West University Place, Galveston, Dallas and Austin, according to the website.

The dangers of texting and driving are well documented. The Virginia Tech Transportation Institute has found that dialing a cell phone and using or reaching for an electronic device raised the risk of a collision about six times in cars and trucks.

 

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Widespread Data Breaches Uncovered by FTC Probe
FTC Warns of Improper Release of Sensitive Consumer Data on P2P File-Sharing Networks

The Federal Trade Commission has notified almost 100 organizations that personal information, including sensitive data about customers and/or employees, has been shared from the organizations' computer networks and is available on peer-to-peer (P2P) file-sharing networks to any users of those networks, who could use it to commit identity theft or fraud. The agency also has opened non-public investigations of other companies whose customer or employee information has been exposed on P2P networks. To help businesses manage the security risks presented by file-sharing software, the FTC is releasing new education materials that present the risks and recommend ways to manage them.

Peer-to-peer technology can be used in many ways, such as to play games, make online telephone calls, and, through P2P file-sharing software, share music, video, and documents. But when P2P file-sharing software is not configured properly, files not intended for sharing may be accessible to anyone on the P2P network.

"Unfortunately, companies and institutions of all sizes are vulnerable to serious P2P-related breaches, placing consumers' sensitive information at risk. For example, we found health-related information, financial records, and drivers' license and social security numbers--the kind of information that could lead to identity theft," said FTC Chairman Jon Leibowitz. "Companies should take a hard look at their systems to ensure that there are no unauthorized P2P file-sharing programs and that authorized programs are properly configured and secure. Just as important, companies that distribute P2P programs, for their part, should ensure that their software design does not contribute to inadvertent file sharing."

As the nation's consumer protection agency, the FTC enforces laws that require companies in various industries to take reasonable and appropriate security measures to protect sensitive personal information, including the Gramm-Leach-Bliley Act and Section 5 of the FTC Act. Failure to prevent such information from being shared to a P2P network may violate such laws. Information about the FTC's privacy and data security enforcement actions can be found at www.ftc.gov/privacy/privacyinitiatives/ promises_enf.html.

The notices went to both private and public entities, including schools and local governments, and the entities contacted ranged in size from businesses with as few as eight employees to publicly held corporations employing tens of thousands. In the notification letters, the FTC urged the entities to review their security practices and, if appropriate, the practices of contractors and vendors, to ensure that they are reasonable, appropriate, and in compliance with the law. The letters state, "It is your responsibility to protect such information from unauthorized access, including taking steps to control the use of P2P software on your own networks and those of your service providers."

The FTC also recommended that the entities identify affected customers and employees and consider whether to notify them that their information is available on P2P networks. Many states and federal regulatory agencies have laws or guidelines about businesses' notification responsibilities in these circumstances.

Samples of the notification letters can be found at: http://www.ftc.gov/os/2010/02/100222sampleletter-a.pdf, http://www.ftc.gov/os/2010/02/100222sampleletter-b.pdf, http://www.ftc.gov/os/2010/02/100222sampleletter-c.pdf. The fact that a company received a letter does not mean that the company necessarily violated any law enforced by the Commission. Letters went to companies under FTC jurisdiction, as well as entities such as banks and public agencies over which the agency does not have jurisdiction.

The FTC appreciates the assistance of the Department of Health and Human Services, the Securities and Exchange Commission, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and the Office of Comptroller of the Currency.

The new business education brochure - titled Peer-to-Peer File Sharing: A Guide for Business - is designed to assist businesses and others as they consider whether to allow file-sharing technologies on their networks, and explain how to safeguard sensitive information on their systems, and other security recommendations. This information is available at www.ftc.gov/bcp/edu/pubs/business/idtheft/bus46.shtm. Tips for consumers about computer security and P2P can be found at www.onguardonline.gov/topics/p2p-security.aspx.

The Federal Trade Commission works for the consumer to prevent fraudulent, deceptive,
and unfair business practices and to provide information to help spot, stop, and avoid
them. To file a complaint in English or Spanish, click http://www.ftccomplaintassistant.gov
or call 1-877-382-4357. The FTC enters Internet, telemarketing, identity theft, and other
fraud-related complaints into Consumer Sentinel, a secure, online database available to
more than 1,700 civil and criminal law enforcement agencies in the U.S. and abroad. For
free information on a variety of consumer topics, click http://www.ftc.gov/bcp/consumer.shtm.

MEDIA CONTACT:
Claudia Bourne Farrell,
Office of Public Affairs
202-326-2181
STAFF CONTACT:
Alain Sheer,
Bureau of Consumer Protection
202-326-3321

 

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Bankruptcy talk spreads among Calif. muni officials

Thu May 27, 4:51 pm ET

SAN FRANCISCO (Reuters) - Two years after Vallejo, California, filed for bankruptcy protection, officials in nearby Antioch are also tossing around the 'B' word.

Antioch's leaders earlier this month said bankruptcy could be an option for the cash-strapped city of roughly 100,000 on the eastern fringe of the San Francisco Bay area.

Antioch's fiscal woes are standard issue for local governments in California: weak revenue from retail sales and property taxes is forcing spending cuts, layoffs and furloughs.

But cost-cutting measures may not be enough to keep Antioch's books balanced, so its city council is openly discussing bankruptcy.

"We just want to alert people to the possibility," Antioch Mayor Pro Tem Mary Helen Rocha said.

Orange County Treasurer Chriss Street would not be surprised if more local governments across the Golden State sound a similar alarm.

Street expects more talk of municipal bankruptcy across California because local government finances are in such dire shape -- a situation underscored on Wednesday when a top finance officer for Sacramento County projected a worse-than-expected shortfall for the county of $181 million, which could force more than 1,000 layoffs from the county's payroll.

"You don't have the easy out of increasing revenue and you have a lot more call on services because of the economy," Street said. "There's no such thing as entertaining bankruptcy; there's ending denial."

Orange County, California's third most populous county, declared bankruptcy in 1994, at the time marking the biggest municipal bankruptcy in U.S. history, after suffering $1.7 billion in losses from bad investments. The county emerged from bankruptcy in 1996 and its credit rating has since recovered from its post-bankruptcy "junk" status. Fitch Ratings earlier this month affirmed its 'AA' rating on the number of the county's long-term obligations.

Marc Levinson, a lawyer with Orrick, Herrington & Sutcliffe LLP who is representing Vallejo in its bankruptcy proceeding, agrees that California's hard times and lean local budgets are forcing local leaders to weigh bankruptcy.

"It's a topic on everyone's lips because cities and counties and local governments are hurting," Levinson said.

OVERCOMING THE STIGMA

Municipal officials, however, are unlikely to pile into bankruptcy court in search of relief from their financial woes, Levinson said.

Chapter 9 bankruptcy filings are rare to begin, in part because many states limit them and, more important, their consequences include harm to credit ratings that determine borrowing costs, said Jim Spiotto, a partner at the Chicago law firm of Chapman & Cutler, who works on municipal finance matters.

A filing for Chapter 9, the part of U.S. bankruptcy code that applies to municipalities could also result in being locked out of the municipal debt market, adding to fiscal trouble.

"We take that very seriously," Amy Doppelt, a managing director at Fitch Ratings, said of how talk of bankruptcy could affect credit ratings.

Bankruptcy could also scare away investment and new jobs at time when California's unemployment rate is in the double-digits -- 12.6 percent in April -- and payroll growth is critical to bolstering the consumer spending and property markets that fill the coffers of local governments.

Ron Loveridge, the mayor of Riverside, California, and president of the National League of Cities, called bankruptcy a last resort.

"It becomes a description of who you are," he said.

Despite its stigma, bankruptcy has paid an important dividend for Vallejo: It has forced public employee unions to the negotiating table, providing city leaders an opportunity to rein in compensation, which city officials said accounts for more than three-quarters of Vallejo's general fund spending. City Councilwoman Stephanie Gomes said the effort has led to concessions from three of four city unions.

Like Vallejo, Los Angeles is suffering from weak revenue at the same time the cost of its pensions and other retirement benefits are rising. Former Mayor Richard Riordan said those factors put the government of the second largest U.S. city on track to declare bankruptcy between now and 2014.

Riordan sees bankruptcy as a necessary tactic for squeezing concessions from the city's public employee unions. It could also pave the way for 401(k) retirement accounts for new city workers instead of defined pension benefit plans with escalating costs, he said.

"The threat of bankruptcy is really the only way you're going to get them to make major changes," Riordan recently told Reuters.

Los Angeles officials dispute Riordan's bankruptcy outlook, published earlier this month in an opinion piece in The Wall Street Journal. City Administrative Officer Miguel Santana said Los Angeles does not want its "brand" tarnished by bankruptcy and that the city can avoid it by continuing to cut spending, by reducing its work force and by handing off some services to the private sector and nonprofits.

"Bankruptcy is what you do when you run out of options. The city has a lot of options and has been exercising those options," Santana said.

Talk of municipal bankruptcy has not escaped California's politically powerful public employee unions. A number of them are pressing the legislature to pass a bill that would require local governments to get the approval of a state board before filing for bankruptcy. Since the board could be stacked with union-friendly appointees, bankruptcy pleas could be rejected or delayed.

"It's a horrible bill," Levinson said. "If you don't have the bankruptcy outlet, what do you do? If you can't pay your bills what do you do?"

(Editing by Kenneth Barry)

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Legal Briefs for HR by Audrey Mross

Welcome to Legal Briefs for HR, an update on employment issues sent to over 4500 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you'd like to be added to the list and you're in! Back issues are posted on my firm's website at www.munckcarter.com under E-Newsletter. Welcome to new readers who attended speeches I presented for the Fort Worth HRMA (May 20) and Lubbock County's Leadership Forum (May 21). I'm looking forward to speaking at the Texas Association of Community College Human Resource Professionals Conference in San Antonio on June 16.

Here's what's heating up:

1. Post It - Federal contractors ($100,000 or more) and subs ($10,000 or more), you have new obligations taking effect June 21. Per Executive Order 13496 (and final reg at 29 CFR sec. 471), you must [a] add certain language to your contracts (which can be incorporated by reference instead of inserting full text); and [b] post a notice of employee rights under federal labor laws. You can find copies of the EO, regulation, a Fact Sheet and the new poster at www.dol.gov/olms/regs/compliance/EO13496.htm . Electronic posting is an option, but note that if you do that it must include a direct link to the Office of Labor-Management Standard's website. If you have not already taken down your Beck poster, do it now and replace with this one.

2. Sex and the City - No, not the movie. The New York Court Appeals held that employers in New York City can be held strictly liable when a supervisor or manager harasses an employee and the employers' affirmative defense articulated in the U.S. Supreme Courts' Faragher and Ellerth decisions is not available under the plain language of the NYC law. Zakrzewska v. New School (N.Y. 5-6-10). In cases where use of the defense is allowed, an employer can avoid liability if it can show that [a] the complainant suffered no tangible job detriment; [b] the employer was reasonable in its efforts to prevent and remedy harassment (e.g., harassment policy, procedure, training); and [c] the complainant failed to notify the employer of the harassment and avail him or herself of the employers remedial measures.

3. Stay Tuned for the Three P's - U.S. Dep't of Labor wants employers to go on the offense and stop playing defense when it comes to compliance with wage and hour, safety and anti-discrimination laws. In response to the perception that employers play "catch me if you can" and only comply after being caught, DOL announced a "Plan, Prevent and Protect" strategy. This strategy forces employers to prove compliance to the DOL and gives employees a road map to making complaints, if they feel the measures don't add up. Some believe the strategy is an end-run around Congress, just in case they do not enact the Employee Misclassification Prevention Act (S. 3254, HR 5107; see LB4HR #4-2010 for summary) since the three P's would require similar analysis and communication of results to employees.

4. Taking Stock? - In recent years, the Texas Supreme Court issued decisions making noncompete restrictive covenants a bit easier for employers to enforce. First, in Shesunoff, they decided that the consideration supporting the promise not to compete did not have to be provided at the time the promise not to compete was made. Providing the employee with access to the employers trade secrets and/or specialized training are pretty much the only types of consideration that "give rise" to the need for the employee's promise and those things are hard to provide on the first day of work when the employment agreement containing the restrictive covenants is normally signed. Instead, the promise not to compete can now become enforceable at the time that consideration was given, even if that is weeks, months or years later. The second softening of the tough Texas standard found an enforceable covenant where the giving of trade secrets was implied but not expressly stated in the employment agreement, in Mann Frankfort Stein & Lipp. Now, the Court has granted a petition to review a decision (Marsh) and address a split in the appeals courts as to whether stock options given to an employee can be the kind of consideration which will support a noncompete covenant. Houston says "yes" and Dallas says "no." Argument is expected to be scheduled for the next term of the Court, which begins September 1. Stay tuned!

5. Coming to Your Mailbox - The IRS wants to take a peek at your 401(k) plan. Approximately 1200 employers will receive a letter, asking them to fill out a "voluntary" questionnaire on-line. If you are one of the lucky ones, be sure it is completed by someone who thoroughly understands plan administration and requirements. A similar "voluntary audit" of university executive pay and other income in 2008 resulted in 30 IRS audits at certain colleges this year.

6. Fresh Form - IRS Form 941 (Employers Federal Quarterly Tax Return) was revised to allow employers to take advantage of a new tax credit for hiring and retaining unemployed workers under the HIRE Act. The revised form can be found at www.irs.gov . Just click on "Form 941" in the top left corner of the homepage under "Forms and Publications."

7. Workin' on the Railroad? - U.S. Dep't of Transportation's Federal Railroad Administration has issued a proposed rule which will ban use of cell phones and other distracting electronic devices and require removal of ear pieces when railroad employees are [a] on a moving train (except on "deadhead" status and not in a controlling locomotive); [b] on the ground or riding rolling equipment during a switching operation; or [c] assisting in preparation of the train for movement. Add this is to the federal ban on texting by commercial truck and bus drivers, the federal ban on government employees texting and driving, 6 states that ban the use of handheld devices while driving and the 25 states (and counting) who ban texting while driving. See a trend? You may want to consider a prohibition or limitation on employee use of electronic devices while driving company vehicles and/or while on company business.

8. Stated Differently - Here is a collection of developments at the state law level that may be of interest:
1. Data Breach is no Day at the Beach - Add MS to the list of states who require notice to affected individuals when an employer or business suffers a breach of their data which includes personal identifiers. When discussed in LB4HR #8-2009, there were only five states left who did not have such laws. Now there are only four (AL, KY, NM and SD).
2. Smoked Out - MI's law prohibiting smoking in places of employment and other public places took effect May 1.
3. Credit Barred - OR prohibits employers from obtaining or using credit history information on applicants or employees for employment purposes, with exceptions for federally insured financial institutions and other employers who are required by federal law to perform credit checks. The law took effect March 29.
4. Crackdown on Contractor Status - CT is increasing civil and criminal penalties against employers who misclassify employees as independent contractor. The civil penalty is increasing from $300 per violation to $300 per day, per violation and it is a felony offense to misclassify with the intent to harm the State with respect to the workers' comp fund. In CT, a worker is a contractor for purposes of unemployment comp if [a] the individual is free from direction and control in connection with the performance of the service; [b] the individual provides the service either outside the usual course of business or outside of all of the employer's places of business; AND [c] the individual is engaged in an independently established trade, occupation, profession or business of the same nature as the service performed. The law takes effect October 1.

9. Safety First - I'm not in the habit of forwarding You Tube videos via LB4HR but this is one powerful PSA for using seat belts. Check it out at http://embracethis.co.uk// . Big thanks to Javier Lozano, for sharing it with me and others. You may want to pass this along as a gentle reminder to buckle up, as the summer vacation season begins. Be careful out there. J
10. Did You Know? - June 25 is Take Your Dog to Work Day? Check it out at www.takeyourdog.com .
11. For the Birds - If you like being tweeted and want breaking news on employment law changes, follow me on Twitter. I'm at @amross.
Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

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Week of May 31, 2010

Dallas could sell a city park to help balance budget

by JONATHAN BETZ
WFAA
Posted on May 24, 2010 at 12:00 AM

DALLAS - The Dallas budget shortfall is $131 million. So far, only $50 million in potential cuts have been identified.

The painstaking process of finding the other $81 million starts on Monday.

At the end of a bumpy road, hidden in the fields on the shores of Lake Ray Hubbard, sits Elgin Robertson Park. It is not the city's most visible asset.

"We figured we'd find a place to take him for a swim, and haven't found that yet," said park visitor Janet Clark.

Families like the Zunigas did find a place for a Sunday barbecue surrounded by waist-high weeds. They must bring their own tables, chairs and grills, and pick up the trash that others leave behind.

"Needs a lot of work," Jaime Zuniga said after looking around. "It's not even a park!"

Saddled with a $130 million deficit, the city is considering selling Robertson Park outright. And maintenance like grass mowing at other public parks may be cut way back.

Council members begin brainstorming cost-saving moves on Monday that could affect nearly every city function.

Libraries, for instance, might have shorter hours. Some code enforcement officers may have to be let go.

Those are just a couple of many deep cuts that Mayor Tom Leppert says are needed.

"We are going to have to rank everything and see those things that are important to do - or even the important ones - how can we do it a better way that might reduce costs," the mayor said.

The city admits that Robertson Park is a low priority, troubling news to families who worry what else the city will let slip away.

Selling a city park that would require voter approval, but as city leaders keep repeating, all ideas must be considered.

 

 

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Legal Briefs for HR by Audrey Mross

Welcome to Legal Briefs for HR, an update on employment issues sent to over 4500 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you'd like to be added to the list and you're in! Back issues are posted on my firm's website at www.munckcarter.com under E-Newsletter. Welcome to new readers who attended speeches I presented for the American Payroll Association, Dallas chapter (April 8) and the HR Energy chapter (April 15). I'm looking forward to upcoming speeches for the Fort Worth HRMA (May 20) and Lubbock County's Leadership Forum (May 21).

Here's what's up:

1. Mothers Day - The Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, is a voluminous federal statute with all sorts of hidden surprises. One is an amendment to the FLSA at 29 USC sec. 207(r) which requires employers to provide reasonable unpaid breaks to a nursing mother, to express breast milk, for up to one year after birth of her child(ren). Further, the employer is to provide a place that is shielded from view and intrusions, other than a bathroom, which may be used for the task. These requirements will not apply to an employer with less than 50 employees, "if such requirements would impose an undue hardship by causing the employer significant difficulty when considered in relation to the size, financial resources, nature, or structure of the employer's business." PPACA does not pre-empt state law which, in some cases, is more restrictive (e.g., break must be with pay). A helpful website to research these state law variations is www.lalecheleague.com. Click on Resources and then Breastfeeding and the Law.

2. New Look at ADA Accommodation - A part-time retail clerk with a 5 to 9 p.m. work schedule asked to be moved to days, after an eye condition left her blind in one eye and made driving after dark "difficult and dangerous." Her request for a day shift was denied and there was no public transportation running after 6 p.m., so relatives drove her to/from work for awhile. She eventually resigned and then sued under the ADA for failure to accommodate her disability. The district court agreed with employer, saying that the requested accommodation had nothing to do with her work environment and that the ADA was meant to address barriers that exist inside the workplace. The 3rd Circuit reversed, noting that "reasonable accommodation" is defined in the ADA to include modified work schedules and holding that, sometimes, the ADA can obligate an employer to accommodate disability-related difficulties in getting to work, if reasonable. Colwell v. Rite Aid Corporation (3rd Cir. 4-10). This may be a good example of the effect of the ADAAA, which did not change the statutory definition of a qualifying disability but did expand the way in which the definition is to be interpreted, in order to expand employers' obligation to accommodate.

3. Next Up? - Proposed changes to the Diagnostic and Statistical Manual of Mental Disorders (DSM) include recognition of behavioral disorders such as addiction to gambling and the Internet. If the American Psychiatric Association's proposals are accepted, get ready for some ADA claims that might put employers over the edge.

4. Summer Jobs - School's nearly out and with a tight job market, some students and recent grads may be offering to work for free, to get a foot in the door and/or gain industry experience. As tempting as that may be, the U.S. Dep't of Labor (DOL) recently reminded employers that there aren't many instances where they can have an unpaid intern. Check out Fact Sheet #71 at www.dol.gov/whd/regs/compliance/whdfs71.htm . And let's refresh on the factors used by the DOL (and also by the DLSE in CA, effective April 7) to determine if a worker qualifies for unpaid intern status:
1. The training offered is similar to what would be given in a vocational school or academic institution;
2. The training is for the benefit of the trainee (not the employer);
3. The trainee does not displace regular employees;
4. The employer providing the training derives no immediate benefit from the "work" of the trainee and on occasion, the training actually impedes the employer's operations;
5. The trainee is not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainee understand the trainee is not entitled to wages for the time spent in training.

5. For Shame - DOL is citing to the need for transparency in rolling out an expanded database of enforcement actions taken by the agency. OSHA and MSHA had already posted their stats, but now prospective hires, vendors and plaintiffs' lawyers can search, by employer, to find the number of violations, amount of back pay, number of employees receiving backpay, type of violation and penalties assessed under the Wage and Hour Division, the Office of Federal Contract Compliance Programs and the Employee Benefits Security Administration. Past, unsuccessful efforts to "blacklist" employers with employment law violations seem to have morphed into a public shaming initiative, so keep this in mind before settling complaints filed via a DOL agency.

6. For the Record - In the continuing war on employee misclassification, DOL announced a proposed record-keeping regulation change which would require employers who intend to treat an employee as exempt from FLSA's minimum wage and overtime requirements to [1] perform a classification analysis; [2] disclose the analysis results to the affected employee; and [3] keep the analysis on file and produce it, on demand, to a DOL investigator.

7. More Misclassification Misery - Another weapon has been added to the arsenal by Congress. Check out the Employee Misclassification Protection Act (H.R. 5107 & S. 3254) which, if passed, will amend the FLSA and require employers to [1] keep records of hours worked by independent contractors; [2] notify workers of their employee or contractor status and provide info from the DOL on how to file a complaint via the DOL website for perceived misclassifications; [3] pay penalties of up to $1100 (first offense) and $5000 (repeat or willful offense) per employee; and [4] pay treble damages (i.e., three times the base penalty) for willful violations of minimum wage and/or overtime laws arising from misclassification as a contractor. The bill also gives DOL and IRS the right to share data and enlists state unemployment compensation agencies (e.g., TWC) to conduct employer audits, looking for scofflaws. There are additional penalties for paying unreported wages to contractors who are truly employees. To check out full text of these bills and monitor their progress, go to http://thomas.loc.gov and insert bill numbers.

8. Weeding Out - With 14 states permitting individuals' use of prescribed marijuana for medical problems, employers are left to wonder if they must accommodate a worker's use (or being under the influence) while on the job. At least in OR, the answer is "no." The OR Supreme Court noted that employers are free to discipline or discharge workers who violate workplace rules prohibiting use of illegal drugs, in a case involving a steel press operator. While the med-pot was OK under state law, it was still a no-no under federal law. Emerald Steel Fabricators v. Bureau of Labor and Industries (Ore. 4-10). If you are in AK, CA, CO, HI, ME, MI, MT, NV, NJ, NM, OR, RI, VT or WA, become familiar with your statute's exceptions and make sure your substance abuse policy is in sync, if you want to keep your workplace grass-free.

9. Dispute Comes to a Head - Workers at Carlsberg Brewery in Denmark, including truck drivers, are all frothed up that their unlimited access to free beer throughout the workday has been limited to three pint-sized cups with lunch each day. The company defends the move as socially responsible and mainstream (given a survey showing that 93% of Danish companies are zero-tolerance when it come to alcohol at work) but the workers went on strike and declared the right to swill suds sacred, along with other employee benefits such a year's sick leave at full pay and two free crates of beer each month.

10. Smoke Signals - The Centers for Disease Control and Prevention (CDC) notes that Texas is one of only seven states that lacks a statewide smoke-free law for workplaces and that states that have such laws saw a 17% reduction in hospitalizations from heart attack. A smoke-free bill failed during the 2009 Texas legislative session, but it is likely to reappear in 2011. If you have feelings on this issue, you may want to visit with your state legislators before they gather in Austin, in January 2011.

11. Find It - If you're looking for the new HIRE Act Employee Affidavit (Form W-11) it can be found at wwww.irs.gov/pub/irs-pdf/fw11.pdf. This is the form new hires must sign, to certify their prior unemployment (no more than 40 hours worked in preceding 60-day period), thereby qualifying the employer for certain tax breaks. IRS says it will release a revised Employers Quarterly Federal Tax Return (Form 941) in May. The current posted version, with Feb. 2010 revision date, does not address the new tax breaks for hiring the unemployed. Stay tuned!

12. Post It - Big thanks to Ron Holifield, CEO of Strategic Government Resources, Inc., for sharing that the SGR job board (www.GovernmentResource.com ) now allows private sector firms to post jobs that they think individuals employed in the public sector might be interested in.

13. For the Birds - If you like being "tweeted" and want breaking news on employment law changes, follow me on Twitter. I'm at @amross.


Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

Legal Briefs for HR ("LB4HR") is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel.

 

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Week of May 24, 2010

States act to curb 'double dipping'

By Brad Heath, USA TODAY

States pummeled by the recession and heavy job losses are moving to bar government employees from "double dipping" - the practice of collecting a pension and a paycheck at the same time.

The new rules are meant to curb employees from retiring only to return to their old jobs. They come at a time when unemployment has climbed to its highest level in 25 years.

It's impossible to determine exactly how many government employees also collect pension benefits, but some of the states that studied the issue have identified thousands of workers.

"We have to fix the mess we've made," says Utah state Sen. Daniel Liljenquist, the chairman of a committee that oversees the state's pension system.

Utah lawmakers will consider an overhaul when they convene in January. "It will happen, because it's something we have to do," Liljenquist says.

Officials in other states are taking similar steps:

New Mexico Gov. Bill Richardson proposed changes in November that would bar new government retirees from double dipping. State legislators had already backed a broader plan that would also have limited current retirees.

The board that runs South Dakota's public retirement system will meet this week to consider changes that would make public employees wait four months after they retire before seeking a new government job.

Florida Gov. Charlie Crist signed a law in June that requires new retirees to wait at least six months before returning to work.

Arkansas lawmakers are considering a measure that would stop elected officials who quit from returning to work. "They don't even empty out their desk," state Rep. Allen Kerr says.

Jon Greiner retired as police chief of Ogden, Utah, in 2002 to start collecting benefits, then immediately returned to his job. Greiner, also a state senator, says there's nothing wrong with that arrangement, and that lawmakers shouldn't use the laws to punish public employees. He is currently paid $107,000 annually as police chief; he estimated he makes about $4,000 a month from the pension.

A state audit in Utah identified more than 4,300 public employees in the state who also collected public pensions. A review in Florida found more than 9,000 - among them, prison wardens, college officials, and the former chief judge of the state's highest court, according to The St. Petersburg Times.

The nation's state and local retirement systems lost about $800 billion in 2008, says Keith Brainard, research director for the National Association of State Retirement Administrators.

Employees who double dip tend to collect benefits sooner, though Brainard says it has a "relatively small" impact on the overall cost of pension plans.

South Dakota's planned changes will save only about $5 million a year, says the system's executive director, Rob Wylie. New Mexico's proposed changes would save about $7 million. Elsewhere, the bill is bigger: An audit this year for Utah lawmakers suggested that double dipping by employees there could cost the state as much as $900 million over the next decade.

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Top city manager compensation: $460,809, report says

May 17th, 2010, 3:00 am . posted by Teri Sforza, Register staff writer

That hissing sound you hear is steam pouring from the ears of city managers all over Orange County.

Three graduate students from Brandman/Chapman and Pepperdine universities - working on behalf of Barbara Kogerman, a candidate for the Laguna Hills city council - dared to go where few have gone before: Attempting to tally up what cities are really paying their city managers.

In addition to the standard salary, benefits, deferred compensation and pension contributions, the students asked OC's 34 cities how much was spent on the city manager's vehicle purchase/payments, car insurance, car repair, car maintenance, gasoline, cell phone equipment and usage, toll road fees, in-home computer/office equipment, dues and subscriptions, travel and meetings, payouts for unused vacation and sick leave. well, the list goes on and on (see it in full below).

Drum roll, please..The most highly-compensated city manager in Orange County is not from Anaheim or Santa Ana, its largest cities but from one of its smallest cities: Bruce Channingof Laguna Hills (right), at $460,809, the report says.

The head honchos in its two largest cities earn quite a bit less: Anaheim's David M. Morgan got $317,923; while Santa Ana's David N. Ream got $327,074.

Earning the least is the executive of teeny tiny Villa Park - who works but 32 hours a week - at $170,920. (See the city-by-city numbers below).

"This study may well serve as a wake-up call to citizens to question the adequacy of municipal financial data," Kogerman writes in her forward to the report. "'Transparency,' a popular buzz-word among politicians, is easy to claim but difficult to find; obscurity is the more common practice. For example, while most cities throughout Orange County provide a fairly narrow range of City Manager salaries, this study reveals that the cost of City Manager and top administrators' compensation benefits can vary widely, be difficult to ferret out, and substantially encumber taxpayers for years beyond their administrators' active employment. It's the full compensation package upon which a public employee's retirement will be based. This retirement obligation is the "not-readily-visible" portion of the financial iceberg that faces future administrations."

It would be fair to say that many of the city managers do not like this report. We heard from several who said it contains numerous errors, and that it failed to get apples-to-apples comparisons between cities.

"Looking quickly at the survey it is easy to see that most of the numbers are grossly inaccurate and clearly misleading," wrote Channing of Laguna Hills in an email. "The only numbers that appear to be reliable for reporting purposes are the ones listed in the Salary column and city population column. All the others are either factually incorrect or of no true comparability."

Leslie Keane of Laguna Woods forwarded us the details of her compensation (see below) and noted, "In reviewing it and the information listed in the chart of other city managers, it does not seem that they all actually provided the same information."

Newport Beach's David Kiff also forwarded us the details of his compensation (again, see below) - though apparently the graduate students didn't have much luck. He notes that the totals are different from what's on the chart.

We'll be posting and linking to the full report once Kogerman officially releases it. Meantime, you can see a summary of the city-by-city data by clicking on the picture below to enlarge the text.

WHY?

It all begins with Laguna Hills city council candidate Kogerman, who's championing term limits (the entire city council has essentially been in the driver's seat since Laguna Hills incorporated in 1991); openness and transparency (when she asked for the numbers on the city manager, it took the staff more than 100 hours of staff time to pull it together, with an estimated value of $5,000) and "reasonable spending priorities."

Channing is a good city manager, Kogerman said, and he should be well-compensated. But his package seemed beyond reasonable. Was it? To determine that, she had to find out how OC's other city managers were compensated.

GRADUATE STUDENTS BANG HEADS ON WALLS

Enter Cynthia D. Smith and Janice A. Voshall, graduates in public administration at Brandman University, part of the Chapman University system. They're required to do applied research to receive their degrees - and so they signed on to intern with Kogerman's campaign and do the city manager compensation survey.

We'll be talking with them more about their experiences today, but suffice to say that it was an exercise in frustration. "There is something unsavory about a process that requires innumerable email and phone calls to city staff as disparate as city clerks, human relations specialists, finance managers, city attorneys, even city managers, and assistants to all the above; and that takes some cities more than three months to pull together data that should be easily accessible to anyone who inquires," the report reads.

In April, Amy Wilson from Pepperdine's master of business administration program joined the study's team to provide expertise in graphing and charting.

STEALTH COMPENSATION?

While basic salary information is readily available and transparent, the students found, the benefits packages "are often difficult to ferret out, are obscure to the public, and offer a more stealthy way to overly-compensate a City Manager without raising public alarm," the report says.

"These added compensation benefits may and often do include such items as management incentives, deferred compensation, contributions to private retirement programs, insurance premiums, paying the 'employees' portion' of payments, physical examinations, home offices, cell phones and computer equipment, autos, auto expenses, moving expenses, payouts for unused sick or vacation leave, greater-than-average vacation leave days, and the like. Many of these benefits will be taken into account when the employee retires, thereby increasing their final compensation as a basis for their retirement pay."

We'll be bringing you details of what the report found re: big, medium and small cities in coming days. Our colleague Claire Webb will also be delving more deeply into the many interesting details specifically about Laguna Hills, which is eviscerated in the report for defying rational explanation when it comes to compensating its city manager.

"The award for the single-most- skewed total compensation package goes to the City of Laguna Hills, where the total compensation of their City Manager exceeds that of every other city in the County of Orange, topping his nearest 'competitor' by more than $105,000," the report says.

"It is hoped that members of the voting public will take it upon themselves to hold accountable their elected officials who vote to grant benefits packages that are both wasteful and unintelligible."

Fred Smoller - the Chapman professor who directs Brandman's master of public administration program - has a hot potato on his hands with this one.

"I would imagine it would stimulate some conversation - and alienate all the people I want to employ my students," Smoller wryly noted. "When there's a $20 billion shortfall, people are looking at all forms of compensation by the public sector. It's for the public to decide whether it's compensation that's correct."

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Open Government Laws Are Falling Behind Tech
The Texas Open Meetings Act is a good law -- but is it behind the times?

Tyler Morning Telegraph

That's something the Texas Senate State Affairs Committee considered recently, when it met to discuss technology and Texas sunshine laws.

 "The Texas Legislature may become the first in the nation to tackle whether tweeting and texting is being used to circumvent open meetings laws and whether the private devices of public officials can be subject to open records searches," the Houston Chronicle reported last week.

"They are new tools to communicate with constituents ... and in some ways they are a better way to engage the public in the public policy process," says Keith Elkins, who heads the Freedom of Information Foundation of Texas.

But noting that "everyone" at the meeting -- senators included -- had Blackberry smart phones and iPhones out during the proceedings, Elkins added, "It is not beyond the realm of possibility that a quorum of any body has texted each other to say 'Yes, I'm voting and why.'"

The Chronicle says while other states have recognized the problem, none have yet found a solution.

"We haven't found any other legislature that has taken this on. This is new territory," says Michael Schneider, program director of the Texas Association of Broadcasters.

"Not long after a Florida state commission recommended all agencies adopt policies on electronic messaging last year, the state's utility regulation agency was caught in a scandal when staff gave out private Blackberry messaging accounts to utility lobbyists, who treated them to a Kentucky Derby trip," the Chronicle added. "Though no texts were preserved, it gave the appearance of trying to circumvent the state's open meetings law."

That's something Texas lawmakers should address in the upcoming session. Texting is quick, easy, and addictive. It's also a way that public officials could communicate surreptitiously, even during meetings.

Doug Toney, editor and publisher of the New Braunfels Herald-Zeitung, told senators his reporters have watched city council members texting throughout meetings.

"Of course, he (the reporter) has no idea whether it is public business," he said.

Text-based communication, as well as "tweets," are clearly forms of communication. And as such, they must be subject to the Open Meetings and Open Records laws - just as email is.

But technology isn't the only threat to sunshine laws looming on the horizon.

Several cities, supported by the taxpayer-funded Texas Municipal League, continue to seek to get portions of the Texas Open Meetings Act repealed -- in particular, the criminal penalties for violating it.

"Alpine, and several other cities, filed a lawsuit last December claiming the Texas Open Meetings Act violates city officials' right to free speech," says Peggy Venable of Americans for Prosperity.

"Furthermore, the lawsuit claims that official communications over the Internet, including emails and social networking sites, should be allowed. City officials want to use social media to get around the Open Meetings Act, and in doing so, they want to take the teeth out of the Act. New media should not be used to constitute new ways to circumvent the law."


Lawmakers can prevent this by simply adding updated language to the existing law.

 

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Week of May 17, 2010

Texas weighs texting vs. open meetings laws

By R.G. RATCLIFFE HOUSTON CHRONICLE
May 11, 2010, 7:45PM
 
AUSTIN - The Texas Legislature may become the first in the nation to tackle whether tweeting and texting is being used to circumvent open meetings laws and whether the private devices of public officials can be subject to open records searches.

"They are new tools to communicate with constituents ... and in some ways they are a better way to engage the public in the public policy process," said Keith Elkins, executive director of the Freedom of Information Foundation of Texas.

But he told the Senate State Affairs Committee on Tuesday that the tools of the Internet and smart phones can lead to quorum and open meetings violations.

"Everybody here today has been texting and answering e-mails," Elkins said. "It is not beyond the realm of possibility that a quorum of any body has texted each other to say 'Yes, I'm voting and why.' "

The issue of using the Internet and e-mail to get around public meetings laws has been a hot topic in Florida and California during the past year, according to testimony before the committee, but, so far, most attempts at regulation of the new technology have occurred piecemeal and at the city and county level.

"We haven't found any other legislature that has taken this on. This is new territory," said Michael Schneider, program director of the Texas Association of Broadcasters.

Lobbyists, councils
Not long after a Florida state commission recommended all agencies adopt policies on electronic messaging last year, the state's utility regulation agency was caught in a scandal when staff gave out private Blackberry messaging accounts to utility lobbyists, who treated them to a Kentucky Derby trip. Though no texts were preserved, it gave the appearance of trying to circumvent the state's open meetings law.

Several Florida cities responded by banning texting on publicly-owned devices by municipal employees.

In California, the Assembly speaker is trying to ban texting from lobbyists to legislators on the floor. And the city of San Jose recently adopted a policy of requiring council members to immediately disclose if they receive a text message on public business during a meeting.

Doug Toney, editor and publisher of the New Braunfels Herald-Zeitung, said his reporters see City Council members texting on their phones during meetings.

"Of course, he (the reporter) has no idea whether it is public business," he said.

Toney said the only one that has ever been shown to his reporter was a text from one council member to another making fun of a former council member as he testified during a meeting.

State Sen. Eddie Lucio, D-Brownsville, said he would be concerned that people may think he was violating the law by texting during a meeting when, in fact, he may be dealing with a family emergency, a message from a constituent or even taking a moment to read the Gospel of the Day.

"Texting has become an excellent way to get staff to assist you during committee meetings," Lucio said.

Disclosure issue
Committee Chairman Sen. Robert Duncan, R-Lubbock, said he is concerned about subjecting private computers and private cell phones to public information requests. He said he also is worried that public officials may end up having to carry three cell phones to cover public use, campaign use and private use.

"Everybody ought to have some expectation of privacy, even if they are a public official," Duncan said.

Scott Houston, a lawyer with the Texas Municipal League, said public officials' private equipment already is subject to a public records request if it is used for public business.

"If you're using personal e-mail for public business, those e-mails are subject to public disclosure," Houston said. "Don't put anything in any form of writing."

Cindy Mallett, of Americans for Prosperity, said taxpayer dollars are being used in an "assault" on the Texas public meetings and public records act because four cities are challenging the state's open meetings act in court as unconstitutional.

The lawsuit was brought, she said, in response to an incident in Alpine in which one council member sent an e-mail to four others proposing the hiring of a contractor. The local district attorney obtained indictments against two of the council members accusing them of violating the state open meetings law, but the charges later were dropped.

 

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Week of May 10, 2010

Young Learners Need Librarians, Not Just Google
Mark Moran, 03.22.10, 3:00 PM ET

A year ago The New York Times presented a multimedia, packaged gift to school librarians everywhere. With its profile of Brooklyn, N.Y., school librarian Stephanie Rosalia, at long last, a major newspaper had chronicled the 21st century school librarian’s role as Web curator and information literacy specialist.

The article made the Times’ "most e-mailed" list for days and was featured on more than 100 blogs, as educators and parents everywhere recognized the need for media specialists to guide students. In a School Library Journal article that deemed Rosalia "The New Poster Girl for School Libraries," Rosalia said she was "awestruck at how this article has struck a nerve all over the country with people who are not librarians." Yet she was also surprised by a school board director who was "absolutely clueless" about how important school librarians are to student success.

Cut to the present, and librarian blogs tell a different story. Many absolutely clueless administrators still believe that a search engine is an adequate substitute for a trained research teacher. With the nation's schools budget-strapped, librarians--and even libraries--are being cut from coast to coast. Even President Obama, whose creation of a National Information Literacy Awareness Month suggests he should know better, left additional funding for school libraries out of his FY 2011 budget proposal.

In the libraries of old, the Dewey Decimal System got you started on research. But there is no card catalog 2.0. To use the Internet as a library you need new research skills: the ability to pick out reliable sources from an overwhelming heap of misinformation, to find relevant material amid an infinite array of options, to navigate the shifting ethics of creative commons and intellectual property rights and to present conclusions in a manner that engages modern audiences.

As a former corporate lawyer, I owe much of my success to effective research skills that evolved, with the help of skilled trainers, as new tools came along. As a former executive officer at a company that had 1,200 employees in 29 countries worldwide, I know that without adequate media literacy training, kids will not succeed in a 21st-century workplace. The "old school" ways of communicating won’t cut it; I’ve mastered those, and yet now spend each day re-learning how to communicate effectively in this new world order. And as the founder of a company whose mission is to teach the effective use of the Internet, I have pored through dozens of studies, and recently oversaw one myself, that all came to the same conclusion: Students do not know how to find or evaluate the information they need on the Internet.

In a recent study of fifth grade students in the Netherlands, most never questioned the credibility of a Web site, even though they had just completed a course on information literacy. When my company asked 300 school students how they searched, nearly half answered: "I type a question." When we asked how students knew if a site was credible, the most common answers were "if it sounds good" or "if it has the information I need." Equally dismal was their widespread failure to check a source’s date, author or citations.

The issue extends beyond homework. The Internet defines the way that young people learn, communicate, and create. A recent report by the Youth and Media Policy Working Group Initiative at Harvard’s Berkman Center stated that "[m]edia literacy skills overlap with safety skills." In addition to learning how to phrase a search query, students need to learn how to protect themselves online, and how to share their work through wikis, videos, and other interactive media. Without a dedicated guide, they end up, in the words of professor Henry Jenkins, as "feral children of the Internet raised by the Web 2.0 wolves."

While not every school librarian is yet adapting to the new reality of what is demanded of the role, thousands of other dedicated librarians I have met are turning their school media centers into "learning commons" where students seamlessly use state-of-the-art Web tools to consume and produce content. Students at many elite schools are learning critical 21st century skills while librarians are eliminated from budget-stressed school districts. The result? What a University College of London study called a "new divide," with students who have access to librarians "taking the prize of better grades" while those who don’t have access to school librarians showing up at college beyond hope, having "already developed an ingrained coping behaviour: they have learned to 'get by' with Google." This new divide is only going to widen and leave many students hopelessly lost in the past, while others fully embrace the future. Already Tufts University has begun to accept student-produced Web videos as a supplement to admissions applications.

Some officials have started to catch on. Kentucky, in becoming the first state to adopt the Common Core State Standards Initiative, recognized the importance of new technology and research expectations, and it cited school librarians as a key part of its future initiatives.

Before parents accept the wisdom of a school board to cut school librarians, they should ask: Will my child graduate with a 21st century resume, or a 19th century transcript? Can he use collaborative technology, such as wikis? When a search engine returns 105 million results, can the student find the five that will set her paper apart? With the Web evolving by the minute, can classroom teachers alone, stressed by assessment testing and ever-growing paperwork burdens, help students figure this all out? As the information landscape becomes ever more complex, why does a school district want to abandon its professional guides to it?

Mark Moran is CEO of Dulcinea Media, a Web publisher that offers free content and tools that teach students how to use the Web effectively.

 

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Tarrant County: Commissioners bans certain websites on county computers

Abilene Reporter News
By Jared Fields
Posted April 28, 2010 at 7:31 p.m.

County employees will have to wait until after-hours to update Facebook statuses or make that winning bid on eBay.

In a preemptive move, Taylor County Commissioners voted Tuesday to ban social networking and online auction websites from most county computers.

County Judge George Newman said the county's computer use policy had not been updated in years and, after a request from a county official, commissioners decided a change was needed.

"We haven't had a big problem with it, but sometimes you just let people
know what they should or shouldn't do," Newman said. "And sometimes you put in writing."

Traci Graham, commissioners' court administrative assistant, said some departments were allowing employees to visit such sites during lunch breaks.


"But as a general rule the court felt best to go ahead and firewall all those websites," she said.

However, some county employees will have access to the banned sites for job purposes.

The county's purchasing department may not use eBay, but Graham said other online auction sites will be used for some discounted purchases.

Investigators with the district attorney, sheriff and collections offices will maintain access to social networking websites for work.

Otherwise, individuals must come to the computer steering committee and ask for the firewall to be removed.

County Commissioner Stan Egger said he supported the policy updates.

"I think it will be a good thing and I think it's what the citizens think is best," he said. "We want our employees, if they have spare time, to come up with new, innovative things for Taylor County instead of surfing the web."

Newman said the policy was not implemented as a reprimand for employees because of any misuse of time. However, some reprimands could be made if employees are found circumventing the firewall.

"That will be a decision for department heads to make," Newman said. "I'm sure the typical procedure will be warnings at first. If it became more habitual I'm sure more stringent action will be taken."

 

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Lake Jackson might charge for some fire crew services

By Katlynn Lanham
The Facts  
Published May 3, 2010

After months of discussion and adjustment, City Council is set to discuss an ordinance that would require reimbursement to the volunteer fire department for certain services.

City Council will discuss the ordinance at its meeting 6:30 p.m. today at City Hall, 25 Oak Drive.

Council will be presented a draft ordinance that would allow the fire department to bill nonresidents for hazardous cleanup conducted by the fire department, Fire Marshal Randy Crim said. The fire department often is called to an accident to handle the cleanup of hazardous materials, he said.

The ordinance also would allow the fire department to charge fees to someone who is found guilty of arson, Crim said. Fees paid would reimburse the fire department for the equipment used to fight the fire the arsonist started, he said.

The list of possible charges included $20 for use of liquid absorbent, $45 for absorbent booms and $600 for the response of a fire engine.

"Budgets are tight and we're trying to think outside the box," Crim said.

Residents already pay taxes for these services, so they shouldn't be charged for materials to clean up a vehicle accident, Mayor Bob Sipple said. It's only fair for nonresidents who create an additional cost to the city to pay for that cost, he said.

Discussion over the past few months has centered on whether residents should also be charged and what services and materials would be subject to reimbursement.

Other possible charges council has considered included extraction from a car after an accident, vehicle fires, scene and safety control and rescues.

Revenue Rescue, the company that would handle the billing in exchange for a percentage of payments, already is used by the Angleton and Wharton fire departments.

Angleton received about $30,000 in the last year using Revenue Rescue, Angleton Fire Chief Eric Smith said. They only bill for certain incidents such as car fires and hazardous spills, he said. 
 

 

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Week of May 3, 2010

Top Richardson staffers paid more than $500,000 for unused time off

12:00 AM CDT on Monday, April 26, 2010
By IAN McCANN / The Dallas Morning News
imccann@dallasnews.com

Richardson's top brass cashed in more than $500,000 in accrued sick and vacation time over the past three years of tight budgets and pay and hiring freezes.

Most, about $380,000, went to City Manager Bill Keffler, whose 2007 contract amendment lets him sell sick time as he chooses.

Mayor Gary Slagel defended the sick leave buyback, structured as a retention bonus. The council at the time approved it unanimously.

"It was a significant bonus, and we all felt it was the right thing to do," Slagel said. "We knew he was being approached by other organizations, and he still is. I don't regret it."

The perk sets Keffler apart from many of his peers - even Irving's Tommy Gonzalez, one of Texas' highest-compensated city managers.

Richardson Deputy City Manager Dan Johnson has cashed in about $126,000 in sick and vacation time. And assistant city managers and department heads are allowed to sell vacation time each December. Keffler defended the policies as a way to retain experienced senior staff members.

"All of our employees get offers all the time, and that is why we have to pay attention to the pay and benefit levels," he said.

Most cities allow employees to accrue large amounts of sick time, sometimes unlimited, and months' worth of vacation time. But only a few allow workers to cash the time in before retirement.

Some are scaling their leave programs back as a way to limit future budget liabilities.

Plano recently imposed a 12-week vacation accrual cap. It limits vacation buyback to 40 hours per year, which cost the city about $463,000 last year. The city's top executives accounted for just $6,455 of that. Sick-time buyback, paid into retirement accounts, cost Plano about $300,000 this year.

LaShon Ross, a Plano assistant city manager, said the city tightened its accrual rules to reduce long-term budget liability in the face of dire long-term budget forecasts.

Dallas' personnel rules prohibit selling vacation time, though exceptions may be granted.

Richardson employees can accrue up to four weeks of vacation and unlimited sick time. When they leave employment, vacation payout depends upon length of service, while sick-time pay is limited to 18 weeks. That policy also applies to Keffler.

"My alternative would have been to leave, and I've got that payout coming anyway," Keffler said. "Is it reasonable for me to put my family's best interests aside and say 'Thank you but no thank you' and put that benefit aside?"

After cashing in nearly 75 weeks of sick time and more than 10 weeks of vacation, Keffler today carries about three weeks of sick leave and 27 hours of vacation.

The bulk of Keffler's sick-time payment, nearly $255,000, came in 2007. Council member John Murphy described the employment agreement signed that March as "golden handcuffs" to keep Keffler on as city manager.

Keffler can cash in as much accrued sick time as he wants as long as he remains city manager through March 2012. Murphy said he believes allowing Keffler to more than double his salary in 2007 was a worthy expenditure for taxpayers.

"Those are expenses that are fully justified if the city is well run and the needs are being met," Murphy said. "Most of the businesses we have now wouldn't be there today if it were not for Bill Keffler."

Irving City Council members made a similar argument last year when they altered Gonzalez's contract. The council gave him a $150,000 loan and a $41,000 annual housing assistance grant for five years and let him cash in up to two weeks of vacation a year. City records show he did so in October, for a pre-tax payment of about $10,500.

Gonzalez, like all Irving employees, also is paid a bonus each year for unused sick time. Every November, employees are paid 25 percent of the value of sick time they accrued but did not use the previous year. For each of the past three years, about 1,000 employees have qualified, costing taxpayers more than $560,000 a year.

Generous benefit policies have long been used to keep people working in the public sector.

"You may not get the same rate of salary, but there's the stability and the benefits," said Ross, the Plano assistant city manager. "That's been the accepted rationale."

Or, as Keffler said: "What is a city manager worth? I'm responsible for an organization of 1,000 employees and a budget of $175 million. The council makes a value judgment they think is responsible."

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Study: Wage disparity between government, private workers in Texas higher than national gap

12:21 PM CDT on Wednesday, April 28, 2010
By ROBERT T. GARRETT / The Dallas Morning News
rtgarrett@dallasnews.com

AUSTIN - Texas' public sector workers earn 17 percent less than private employees with comparable experience and education, a new study shows.

The gap was larger than it was nationally or in six other large states studied.

Researchers didn't pinpoint why pay of state and local government workers in Texas lags farther behind private-sector employees than, say, in Florida and California, according to University of Wisconsin-Milwaukee economist John S. Heywood, the report's co-author.

He said nationally, though, the data since 1983 show a widening gap.

"Over the last 20 years, the earnings for state and local employees have declined relative to comparable private sector employees," especially since the late 1990s, Heywood said.

Between 2000 and 2008, the U.S. averages were 11 percent less pay for state employees than for their private-sector counterparts; and for local government workers, 12 percent less, he said.

Although Texas and most other states face huge budget gaps as federal stimulus money recedes and the economy recovers slowly from a deep slump, Heywood said the study suggests that even at current pay levels, governments may have problems retaining key workers.

"Now is not the time for a large scale rollback in the compensation of state and local workers," he said.  He and a colleague did the report for the Center for State & Local Government Excellence, which tries to help governments attract talented employees; and the National Institute on Retirement Security, a research organization created in 2007 to foster greater appreciation "of the value of retirement security" to workers and society as a whole.

Although Texas has weak unions, Heywood said he doubts lower levels of union membership explain much if any of the public-private sector pay differences here.

"Weak unionization is probably evident in both sectors, [public and private,] relative to other states," he said.

While fringe benefits such as health coverage and pensions "comprise a greater share of compensation in the public sector," he said they don't quite bring total compensation up to private sector levels.

"Even after accounting for these fringe benefits, state and local [government] employees have lower total compensation - 6.8 percent lower for state employees and 7.4 percent lower for local workers, [versus] comparable private sector employees," he said.
  

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Week of April 26, 2010

Dallas Fed: North Texas economy perking up

Dallas Business Journal - by Kerri Panchuk Web Reporter

Federal Reserve Bank of Dallas Economic activity in the Eleventh District, which includes all of North Texas, is showing signs of economic recovery, the Federal Reserve Bank of Dallas said in its latest Beige Book Survey Wednesday.

The survey of local professionals found that sources in the high-tech  manufacturing area, as well as those in retail, residential real estate, staffing and energy are reporting a higher demand for goods and services.

Professionals working in areas that still lag behind - commercial real  estate, financial services, construction and manufacturing - indicate that their industries are nearing the bottom.

An uptick in raw material prices for steel, fuel, cotton and sugar are squeezing margins for many industries, which must keep prices low due to weak demand. Additionally, crude oil prices rose to more than $80 per barrel in late March.

Layoffs have subsided across the board, but companies are still hesitant to hire new employees.

Staffing firms noticed more hiring activity, as did companies specializing in energy service, transportation and manufacturing.

Sales increased in the retail sector, with large discount chains seeing significant demand for electronics and household items. The auto sector said inventories remain lean, but sales rose over the last six weeks. Prices on automobiles are flat.

In the professional services sector, accounting firms said demand is sluggish outside tax-related services. Demand for legal services remains flat at lower levels, with the exception of attorneys working in the energy sector.

Strong demand from overseas increased activity for transportation firms.

Housing contracts were improved showing more favorable conditions. Builders also said sales in the first three months of 2010 were strong. Apartment demand is described as "meaningfully positive."

In commercial real estate, respondents gave mixed reviews. Most estimate the market is nearing the bottom. They also noted a drastic reduction in rental rates on renewals.

In the financial services arena, loan demand remains soft, but is showing signs of stabilization.

 

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Dallas teams up with insurer for help repairing pothole-riddled roads

02:04 PM CDT on Thursday, April 15, 2010
By AIDA AHMED / The Dallas Morning News

Dallas' pothole problem has inspired an unusual partnership between the city and a private insurer.

The Hartford Financial Services Group's "Pothole Patrol" program will defray $10,000 in street maintenance costs, the equivalent of a day's worth of pothole repairs.

In return, some city work crews will provide free advertising by bearing the insurer's logo.

"It is a win-win partnership for the city and The Hartford," company spokeswoman Alison Clark said during a news conference today on the steps of City Hall.

Mayor Tom Leppert, who also attended the event, said the partnership is a sign of things to come.

"The bigger story than the potholes is the idea of partnering," he said, "a partnership where everyone's interests are aligned.

"We can do a lot better if we work together."

An unusually severe winter, including near-record snowfall, has caused an excess of potholes in North Texas this year.

Dallas expects to repair at least 20,000 potholes during fiscal 2009-10, at a cost of $17 each. Budget woes led the city to cut all funding for resurfacing, but road officials say there's still money for repairs.

Even so, Leppert said, "I don't think there'll ever be a budget big enough to do everything."

The mayor said the city will continue to seek corporate partners to help improve the city in other areas, such as recreation.

Aside from the exposure the partnership gives The Hartford, the insurer expects to benefit by preventing accidents and seeing fewer claims from drivers whose cars are damaged by potholes. The company has similar sponsorships with a handful of other cities across the country, though Dallas is the only on in Texas.

The Hartford's Web site has a poll for Dallas residents to vote on the worst streets in the city. Lemmon Avenue just west of the Dallas North Tollway holds the No. 1 spot.

"We have 16 crews and are hoping to fill hundreds of potholes," Clark said, "but we will fill the biggest offender today" on Lemmon.
 

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Week of April 19, 2010

San Jose city manager recommends 5% pay cut, benefits cut

Wednesday, April 14, 2010, 6:07pm PDT
Silicon Valley / San Jose Business Journal

San Jose City Manager Debra Figone is recommending pay and benefits cuts totaling at least 5 percent for herself, members of the city’s top-tier management, and other employees included in the unrepresented employee groups.

In addition, discussions are underway about what form a second 5 percent reduction might take are underway.

The city is currently facing a $116 million budget deficit, and Figone said the reduction recommendation would save the city an estimated $2.35 million in all funds and $1.5 million in the general fund.

Figone's recommended compensation and benefit changes include a 4.75 percent reduction in pay. For employees in Unit 99, it also would freeze performance-based pay increases for the second year in a row, through the 2010-2011 fiscal year. For employees in the city’s unrepresented non-management units, it would freeze step and merit increases for one year.

The change would also require city employees in these employee groups to pay a higher share of health care premiums and higher co-pays and would reduce the maximum amount of sick leave payout.

The announcement affects approximately 240 employees, including senior staff, executive staff and senior managers under the city manager’s appointing authority. These employee groups also include some professional and management employees that work in the offices of the city attorney, auditor, city clerk, independent police auditor, and redevelopment agency, as well as some unrepresented non-management employees.

“At this challenging time when the city is preparing for a significant number of layoffs, all of us need to be part of the solution,” said Figone. “I want to make sure the city’s executive management employees are showing leadership on this issue.”

The agreement will go to the City Council for approval on April 27; if approved, changes would take effect June 27.
 

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Leander launches Web broadcast station

Austin Business Journal

The city of Leander will go live with its first broadcast station Thursday.

The Leander Internet Broadcast Network programming will cover business, real estate, technology and special interests stories, according to officials. The network's first report will broadcast from the downtown Capital Metro rail station April 15, tax day.

The city said the site will have daily and on-demand shows and serve as a one-stop information channel for the Leander community, including updates on municipal issues.

   

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George Will: Facing up to pension crisis

Abilene Reporter News
Posted April 11, 2010 at 12:05 a.m.

WASHINGTON - A puzzle from Philosophy 101: If a tree falls in a forest and no one hears it, does it make a sound? A puzzle from the prairie: If an earthquake occurs in Illinois and no one notices, is it really a seismic event?

Gov. Pat Quinn called it a "political earthquake" when the state's Legislature recently voted - by margins of 92-17 in the House and 48-6 in the Senate - to reform pensions for state employees. There is now a cap on the amount of earnings that can be used as the basis for calculating benefits.

In some states, employees game the system by "spiking" their last year's earnings by accumulating vast amounts of overtime pay.

An even more important change - a harbinger of America's future - is that most new Illinois state government employees must work until age 67 to be eligible for full retirement benefits. Those already on the state payroll can still retire at 55 with full benefits.

The 1935 Social Security Act established 65 as the age of eligibility for payouts. But welfare state politics quickly becomes a bidding war, enriching the menu of benefits, so in 1956 Congress entitled women to collect benefits at 62, extending the entitlement to men in 1961.

Today, nearly half of Social Security recipients choose to begin getting benefits at 62. This is a grotesque perversion of a program that was never intended to subsidize retirees for a third to a half of their adult lives.

It also reflects the decadent dependence that the welfare state encourages: Because of the displacement of responsibility from the individual to government, 48 percent of workers over 55 have total savings and investments of less than $50,000.

Because most states' pension plans compute their present values - and minimize required current contributions - by assuming an unrealistic 8 percent annual return on investments, the cumulative funding gap of state pensions already may be $3 trillion, and certainly is rising. For example, last Wednesday's New York Times contained this attention-seizing bulletin:

"An independent analysis of California's three big pension funds has found a hidden shortfall of more than half a trillion dollars, several times the amount reported by the funds and more than six times the value of the state's outstanding bonds."

It is not news that California is America's homegrown Greece, but the condition of the three funds, which serve 2.6 million current and retired public employees, is going to exacerbate the state's decline by requiring significantly higher taxpayer contributions.

A recent debate on "Fox News Sunday" illustrated the differences between the few politicians who are, and the many who are not, willing to face facts. Marco Rubio, the former speaker of Florida's House of Representatives who is challenging Gov. Charles Crist for the Republican U.S. Senate nomination, made news by stating the obvious.

Asked how the nation might address the projected $17.5 trillion in unfunded Social Security liabilities, Rubio said we should consider two changes for people 10 or more years from retirement. One would raise the retirement age. The other would alter the calculation of benefits: Indexing them to inflation rather than wage increases would substantially reduce the system's unfunded liabilities.

Neither idea startles any serious person. But Crist, with the reflex of the unreflective, rejected both and said he would fix Social Security by eliminating "waste" and "fraud," of which there is little. The system's problems are the result not of incompetent administration but of improvident promises made by Congress.

Synthetic indignation being the first refuge of political featherweights, Crist's campaign announced that he believes Rubio's suggestions are "cruel, unusual and unfair to seniors living on a fixed income."

They are indeed unusual, because flinching from the facts of the coming entitlements crisis is the default position of all but a responsible few, such as Wisconsin's Rep. Paul Ryan, who has endorsed Rubio. What is ultimately cruel is Crist's unserious pretense that America faces only palatable choices, and that improvident promises can be fully funded with money currently lost to waste and fraud.

By the time the baby boomers have retired in 2030, the median age of the American population will be close to that of today's population of Florida, the retirees' haven that is heaven's antechamber. The 38-year-old Rubio's responsible answer to a serious question gives the nation a glimpse of a rarity - a brave approach to the welfare state's inevitable politics of gerontocracy.

George Will is a Washington columnist and television commentator.

 

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Announcement from Linked:HR: New Research Study on Engagement and Personality, Human Resource Professionals        

Posted By Cris Wildermuth, Ed.D.

In 2009 Dr. Cris Wildermuth conducted a preliminary study on the engagement and personalities of HR professionals.  The results were very interesting and encouraged Dr. Wildermuth and Dr. Anne Christo-Baker to follow up with a revised study.  Specifically, the investigators are exploring the impact on personality, meaningfulness, safety, availability of resources, and person-environment fit on the employee engagement of human resource (HR) professionals. All HR professionals who are Members on Linked:HR are welcome to participate. The investigators’ goal is to better understand the factors that impact the engagement of HR professionals at work. The survey takes approximately 15 minutes to complete. We are defining an HR professional as someone who spends fifty percent or more of his/her time in one or more of the following functions related to human resources at work (SHRM, 2009): 1.Business leadership (strategic processes related to human capital management) 2.Compensation 3.Benefits 4.External HR consulting 5.Diversity management 6.Employee relations (maintaining a positive work environment, managing/planning employee performance, ensuring that applicable regulations are followed) 7.Labor relations (managing formal labor-management relations at work including union agreements) 8.Ethics and sustainability (planning and supporting organizational codes of ethics, social responsibility and sustainability efforts) 9.Safety and security 10.Sourcing, recruiting and hiring 11.Technology in HR (use of technology to support key HR functions) 12.Organizational and employee development 13.Global HR

If you are an HR professional we invite you to respond to the survey.  Please click on this link: http://www.surveymonkey.com/s/TandDEngagementSurvey               

If you complete the survey, you will receive access to a page of engagement resources including a bibliography on engagement, engagement training activities, and the results of a preliminary study on HR professionals run earlier. We will publish a summary of the results on the NEWS area of the group after it is completed for the benefit of all group members. For additional information or questions, kindly contact: Dr. E. Anne Christo-Baker Assistant Professor of Organizational Leadership & Supervision Purdue University ehcrist@pnc.edu Dr. Cristina Wildermuth Instructor, Organizational Leadership Wright State University Cris.wildermuth@wright.edu        

 

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Week of April 12, 2010

FBISD Fine Arts students use FACEBOOK to push for change in board policy

Fort Bend Sun
By DIANE TEZENO
Updated: 03.30.10

More than 500 students in the Fort Bend Independent School District have turned to FACEBOOK to push for a change in a district policy that students say negatively impacts their grade point averages and academic standings.

Currently the district's graduation plan requires high school students to take one year of fine arts, however students taking honors classes are penalized because fine arts classes are weighted as advanced credits, according to the group.

Students are pushing to make fine arts classes an optional credit, so that a student's grade point average is not negatively affected.

"A lot of students are passionate about the arts and wish to take it all four years, but fine arts classes count as advanced credits, so if you take honors classes it is just like getting a 'B'," Travis High School Student Brandon Tang said.

Tang, along with Austin High School students Aditya Srivatsan and Swaroop Rao presented the group's appeal to trustees at Monday night's regular school board meeting.

According to Srivatsan, the current district policy penalizes students for being ambitious and dedicated to extracurricular programs in the fine arts.

An aspiring violinist, Srivatsan said that "many talented and gifted musicians and actors have quit their programs because of fears it would hurt their g.p.a's."

Rao, a member of the Austin High School choir and an aspiring singer, asked board members to "do the right thing and divorce this policy."

The group also has encouraged students to write letters to the board endorsing a "fine arts no credit option."

"It is high time that the FBISD board reevaluate their stance regarding the fine arts and put in place a sound policy that would not penalize students for choosing to pursue fine arts courses," Rao said.

Rao called it a "disturbing trend and a tragedy and waste of talent" that students are dropping fine arts because of concerns with the impact to their g.p.a.'s.

A member of the Austin High School choir, Rao is training in the Italian Opera and last year was chosen as a Houston Young Artist.

"It is unfortunate that kids are being penalized for doing something they love, and in order to groom and make kids more well rounded the arts are a must," Rao's mother, Chitra, said.

Another parent, Lata Srivatsan, described the district's current policy regarding fine arts courses "very hard on the students."

"These students are academically very bright and they want to go to really good colleges, but if they pursue their passion for music, their g.p.a. becomes less," Lata Srivatsan said.

Both mothers support the students efforts and would like to see the fine arts courses, beyond the minimum graduation requirement, be offered as a "no credit" option.

"I know of so many other kids who are extremely talented, but because of the negative impact on their g.p.a. they just drop off after ninth grade and they lose all of the talent, and it is hard to take it on later," Lata Srivatsan said.

FBISD Board President Bob Broxson commended students for voicing their concerns.

Members of the growing FACEBOOK group plan to address the board in future meetings to encourage changes in the policy.

For more information on the group's efforts, visit http://www.facebook.com/#!/group.php?gid=235231244978&ref=ts.

     

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Corpus Christi council delays vote on privatization consultant

Caller-Times
By Jessica Savage
Posted March 30, 2010 at 6:23 p.m.

CORPUS CHRISTI - The City Council tabled a motion Tuesday to allocate more than $250,000 for an Irving-based accounting company to determine which departments the city could privatize as a cost-saving measure.

Council members said they felt they did not have enough information about accounting firm Crow Horwath to approve a service agreement. The item has been tabled until the next council meeting.

"Theses are big bucks that we are going to pay a consultant and I want to hear the raw data," Councilman Larry Elizondo said. "It's a sensitive issue all the way around."

The money would come from the city's unreserved fund balance. The consulting would be done in two phases over the next six months. Phase one includes an initial assessment of the city's budget. It would cost $78,370. Phase two would come with recommendations to the city on which areas of the budget could be outsourced. It would cost 175,000.

Assistant City Manager Oscar Martinez said staff went through an extensive selection process before recommending Crow Horwath. He said the company would be expected to speed up the city's process of identifying areas of the budget that could be outsourced.

The consultation would be completed by August in time for amendments to next year's budget.

 

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Federal appeals court upholds HPD beard policy

By MIKE TOLSON
Copyright 2010 Houston Chronicle
March 30, 2010, 7:57PM

A Houston Police Department policy banning patrol officers from wearing beards is not racially discriminatory, a federal appeals court ruled Tuesday.

The opinion of the 5th U.S. Circuit Court of Appeals upheld a lower court decision last September that dismissed the lawsuit brought by four officers who claimed that a skin condition common among African American men is made worse by shaving.

The appeals court said the four officers, who suffer from pseudofolliculitis barbae, did not show discriminatory intent to keep them from working in a "broad class of jobs," only that they were not eligible for certain department positions because of their need to avoid daily shaving of facial hair. Anti-discrimination law requires proof that a policy imposes substantial limits on their ability to work.

The officers, who wear goatees, were not allowed to wear HPD uniforms and were assigned other duties. Not being able to wear a uniform affected their ability to accept part-time security jobs, the men claimed, but the court held that any reduction in extra work opportunities did not amount to discrimination.

At the heart of HPD's policy and the 2007 lawsuit against the city are the protective masks that the department issues for its officers. Lawyers representing the city argued that police officers will be first-line defenders in the event of a terrorist attack and need to have masks that fit properly.

 

 

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Average wages drop in North Texas

Dallas Business Journal - by Kerri Panchuk Web Reporter

The average weekly wage of North Texas workers dropped between September 2008 and September 2009, as the nation entered the worst recession in decades, a new report from the Department of Labor Bureau of Labor Statistics shows.

According to the report, which was released Thursday, the North Texas county that took the biggest hit in the average weekly paycheck was Collin County.

In Collin County, which is home to Plano, McKinney, Frisco and Allen, the average weekly wage fell 3.1 percent to $976.

In Dallas County, the average weekly wage in September 2009 hovered at $1,012.00 per week, down 1.1 percent from the same period a year earlier.

The most significant wage drop among Dallas County residents occurred in the natural resources and mining industry, where the average wage hit $2,857.00 per week, down 41.2 percent from the previous year.

In the private sector, the average Dallas County wage fell 1.7 percent between 2008 and 2009.

In Tarrant County-home of Fort Worth-the average wage in September 2009 was down a slight 0.1 percent from the previous year, hovering at $839 per week.

In Denton, the average wage also fell a slight 0.1 percent, with the average person bringing in $746 per week.

Read the full report online.

http://www.bls.gov/news.release/cewqtr.nr0.htm

 

 

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Week of April 5, 2010

Claiming Panic Attacks From Workload, Legal Secretary Sues Firm Over Firing

Karen Sloan
The National Law Journal
March 25, 2010

Are law firm staff layoffs creating unmanageable workloads for so-called survivors?

They are at Seattle-based Davis Wright Tremaine, according to a lawsuit filed by a former secretary, who claims she was unfairly fired by the firm after suffering panic attacks brought on by unrealistic work demands following staff layoffs.

In a suit filed last month in Oregon state court, Nancy Topolski claims that Davis Wright Tremaine wrongfully terminated her and violated Oregon's family leave act as well as the state's disability and discrimination and retaliation laws. She is seeking nearly $1 million, according to the complaint.

Lawyers for Davis Wright last week petitioned to have the suit moved to federal court.

Topolski was hired as a legal secretary in the firm's Portland office in 2007, according to the complaint, and provided full-time support for three attorneys. The firm laid off "a significant number" of employees including 11 secretaries in the early fall 2009, and Topolski then became responsible for supporting a fourth attorney -- Greg Chaimov.

"Mr. Chaimov had a tendency to wait until the last minute to give assignments to Plaintiff, which ended up causing projects to be rushed and completed to standards lower than Plaintiff desired," the suit reads.

Topolski informed her supervisor several times in late September and October that her increased workload was causing her stress, affecting her ability to sleep and causing her to make mistakes. On Oct. 21, Topolski suffered a panic attack while at work and told a human resources representative that she needed a lighter workload, which the representative indicated would happen, according to the complaint. However, no changes were made and Topolski suffered a second panic attack at work on Nov. 3, the suit says. She was fired the following day.

Topolski's lawyer, Carl Post, declined comment on the case through a colleague at his firm, Law Offices of Daniel Snyder in Portland.

Davis Wright maintains that it did nothing wrong.

"While we don't discuss the particulars of individual employment situations, we are confident this matter was handled appropriately," said Mark Berry, a partner at Davis Wright and the firm's internal employment counsel.

Growing workloads have become a common problem for legal support staff in recent years as many firms have cut down on those positions, said Patricia Infanti, the president of NALS, formerly the National Association of Legal Secretaries. In addition to increasing the attorney-to-support staff ratio, many large firms have done away with "floaters," or backup workers who could be called in to assist swamped staffers.

"Most definitely, there are some people who can handle that better than others," Infanti said of increased workloads. "It can be especially difficult for those who really care about what they do, and perhaps feel like they aren't producing their best work. They are having to do more with less, and having to explain to attorneys that they have fewer resources."

 

 

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Who's still biased?

Diversity training has swept corporate America. Just one problem: It doesn’t seem to work.
By Drake Bennett

March 7, 2010

If you work at a large company, and especially if you manage other people, chances are you’ve gone through diversity training. The vast majority of the Fortune 500 and, by some estimates, the majority of American employers offer diversity training programs for their employees. Many make such training mandatory. The amount of money spent on it in the United States runs into the billions.

 

The courses vary widely, in content and duration and method and philosophy: Some are short videos followed by structured discussions, some are multiday retreats, some are informational, teaching participants about their “diversity circle” and the difference between a generalization and a stereotype, others focus on role-playing. But they all promise to help people better navigate the fault lines of race, gender, culture, class, and sexual orientation that can divide co-workers and unsettle office.

Such programs have always been controversial, with critics arguing that they’re unnecessary and needlessly politicize the workplace. But despite the growth and prevalence of diversity training, there have been few attempts to systematically study it.

Now a few social scientists are taking a hard look at these programs, and, so far, what they’re finding is that there’s little evidence that diversity training works. A paper published last year by the psychologist Elizabeth Levy Paluck of Princeton University’s Woodrow Wilson School and the Yale University political scientist Donald Green comprehensively surveyed the literature on prejudice reduction measures and found no empirical support for the idea that diversity training programs change attitudes or behavior. Similarly, a 2008 literature review paper by Carol Kulik of the University of South Australia and Loriann Roberson of Columbia University found that, on the question of changing behavior, there were few trustworthy studies - and decidedly mixed results among those. And research by a team of sociologists on more than 800 companies over three decades has found that the best diversity training programs make little difference in who gets hired and promoted, and many programs actually decrease the number of women and minorities in management.

“Even with best practices, you’re not going to get much of an effect,” says Frank Dobbin, a Harvard University sociology professor on the research team. “It doesn’t change what happens at work.”

Practitioners and some scholars disagree, arguing that, while there have been some unsubstantiated claims and overhyped “innovations” in diversity training, the field as a whole has begun to figure out what works. The changes that training triggers can often be subtle, defenders argue, and, in a setting as dynamic and stubbornly multivariate as the workplace, it’s all but impossible to come up with the clear, falsifiable evidence social science demands. The poor results that do show up in broad-based studies, they say, are due to companies whose commitment to diversity training programs is merely pro forma, and who see training as just a way to protect themselves from lawsuits.

“My experience is that a lot of these studies make good points, but they tend to fall into one particular trap,” says Howard Ross, a leading diversity consultant. “When we talk about diversity training as a megalith, it’s similar to saying, ‘Are restaurants good places to eat?’ The answer is ‘yes’ and ‘no,’ depending on the restaurant.”

Critics, on the other hand, argue that today’s practitioners are unlikely to be converging on a set of best practices, since the field is characterized by divergent, even contradictory approaches to the same set of problems. To critics, the proponents are simply mistaking the fact that people feel better about themselves after training for real results. Just because people think they’re less prejudiced doesn’t mean they are. Indeed, with something as subtle and reflexive as bias, we’re often our own worst judges.

The roots of diversity training extend back to the work of the psychologist Kurt Lewin at MIT in the 1940s. Trying to train leaders to better manage interpersonal tensions, Lewin developed methods of using small discussion groups to “unfreeze” the attitudes of their members (coining “group dynamics” in the process).

The current popularity of diversity training, however, dates to the 1980s. The social revolutions of the 1960s had brought more minorities and women into the workplace, but their integration was halting, leading to widespread problems: Women and minorities were hired and promoted far less frequently than white males, and paid less for the same work. Many complained of social exclusion, habitual slights, or open hostility from colleagues. These complaints spilled into the public eye as workers began to sue their employers for discrimination and harassment.

Managers, faced with predictions of even greater demographic changes in the workplace in coming decades, turned to diversity courses as a way to respond. Some firms adopted the programs to preemptively head off discord and make themselves more appealing to minority applicants and customers. Others, like Texaco and Coca-Cola, were compelled to implement them under the settlement terms of discrimination lawsuits. A whole “diversity management” industry arose to meet - and encourage - the need, and large companies began creating diversity task forces and hiring chief diversity officers.

Social scientists, meanwhile, had been studying bias for decades: Psychologists looked at it in the lab, economists examined its effect on housing and other markets, sociologists studied the way it shaped neighborhoods and schools and even workplaces. But, aside from a few examples like Lewin’s work at MIT, the research literature had largely limited itself to diagnosing problems rather than proposing solutions to them.

The current crop of diversity research is an attempt to address that gap. The researchers are driven, at least in part, by the desire to find prescriptive answers to the real-world difficulties of managing diversity in the workplace.

“We were increasingly frustrated by the fact that we know a lot about what kinds of disparities there are in organizations, and what kind of disadvantages women and minorities faced, but we know almost nothing about how to how to reduce them,” says Alexandra Kalev, a sociologist at the University of Arizona.

Several years ago Kalev, along with Dobbin and Erin Kelly of the University of Minnesota, set out to see what works. As a measure of program success, they looked at the number of women and minorities in a company’s managerial ranks - a much more concrete metric than the surveys of employee attitudes that many other studies relied on. The researchers drew on 31 years of Equal Employment Opportunity Commission data, specifically the annual reports that companies file detailing their racial and gender makeup. The sociologists then surveyed 829 of those companies on what diversity programs they had and when they instituted them. The results were described in a 2006 study, and in another paper that Kalev and Dobbin are currently writing.

The researchers found that while diversity training was by far the most popular approach, it was also the least effective at getting companies to hire and promote women and minorities. Some training programs were more effective than others: Voluntary programs were better than mandatory ones, and those that focused on the threat of bias and harassment lawsuits were worse than those that did not. But even the better programs led only to marginal changes. And those that were mandatory or discussed lawsuits - the vast majority of the programs the researchers examined - slightly reduced the number of women and minorities in management. Required training and legalistic training both make people resentful, the authors suggest, and likely to rebel against what they’ve heard.

What worked much better than even the best training, the researchers found, were more structural measures: minority mentoring programs, or designating an executive or a task force with specific responsibility to change promotion practices.

“You can imagine, if you’re in a meeting for two hours once a year to refresh your diversity awareness, what’s the effect of that going to be compared to being a mentor to someone?” says Dobbin.

Diversity trainers concede that there are poorly designed programs out there. There are also, they point out, companies that implement diversity training without much concern for whether it works, which is not a recipe for success. That doesn’t mean that well designed, conscientiously applied programs don’t work.

And diversity consultants bristle at the suggestion that they believe diversity training programs are a panacea. Properly instituting a diversity training program, many of them insist, means combining it with other, more systemic changes, including measures like those that the Kalev, Dobbin, and Kelly research found were more effective.

“If you look at just the efficacy of diversity training programs, that’s not how we look at it as a practitioner,” says Rohini Anand, global chief diversity officer at the food services giant Sodexo. “To me diversity training is one small but very necessary piece of what I need to do.”

Nor does the fact that an effect didn’t show up in promotion rates necessarily mean there’s no effect at all, others argue - the training may be reshaping attitudes and behavior in subtler ways. Derek Avery, a psychologist at the University of Houston, points to research findings that diversity training curriculums in schools led students to spend more time with classmates from other ethnic backgrounds.

“The existing evidence suggests that [diversity training programs] do something, we’re just not entirely certain yet what that something is and how far it extends,” says Avery.

A few scholars have tried to look systematically at the existing literature on diversity training. Unlike Kalev and Dobbin, they didn’t find evidence that diversity training programs didn’t work. What they did find was a big question mark: serious doubts about studies that show a positive effect and, overall, a pronounced lack of evidence that diversity training is effective.
Elizabeth Levy Paluck has taken perhaps the broadest look at the literature. In studies she did alone and with Yale’s Green, she looked at 985 published and unpublished reports on prejudice reduction programs, by academics and nonacademics.

Among those studies, Paluck found that the ones on diversity training were among the least rigorous: They often comprised little more than asking participants to fill out surveys on their own attitudes. Several compared the attitudes of training participants to a “control” group of co-workers who had opted not to attend the training, but without actually controlling for the possibility that someone who would choose to take the course would do so because they already had different attitudes than someone who would choose not to. It is possible that diversity training works, Paluck concludes, it’s just that none of the research that says it does is reliable.

“The best answer we have at this point in time is that we just don’t know,” she says.

The paucity of reliable research on diversity training programs is all the more notable alongside the wealth of basic research on prejudice. Partly this is because bias is complicated. It’s also, however, a result of the incentives in both academia and the business world - neither of which necessarily encourage the critical evaluation of real-life solutions to real-world problems.

For social scientists, the pressure is to find statistically significant, publishable answers to discrete questions about human behavior. That means the experiments and models academic researchers create take out most of the messiness of actual person-to-person interactions. Practitioners, for their part, are selling a service. At its worst, that makes them openly hostile to the idea of critical evaluation - their clients might find out training isn’t accomplishing anything. And even if the goal is to discover what works and what doesn’t, the sort of data that social scientists rely on can feel like a luxury for people running businesses.

“The question of what data is real data is one that the academics and practitioners often wrestle with,” says Ross. “A research project that takes three years works fine in academia, but we’re dealing with something where we’ve got an issue today, how do we solve it tomorrow.”

Paluck emphasizes that she doesn’t think that academic researchers like her necessarily know best. She believes that the plethora of competing programs may well be generating productive ways of combating bias and getting dissimilar people to be more comfortable work together. But without rigorous study there’s no way to separate the good from the bad. Some programs divide their classes into the most heterogeneous discussion groups possible - whether by race or gender or sexual orientation - out of the belief that dissimilarity will force participants to confront competing viewpoints. Others insist that more uniform groups provide a safer environment for people to discuss their own biases and grievances. Some try to get people to be frank about their own attitudes, no matter how taboo; others insist that doing so backfires by making others uncomfortable. Some programs attempt to elicit strong emotional reactions, others to keep things as cerebral as possible.

There’s a reasonable argument to be made for all of these approaches, but it’s hard to imagine that, in so many particulars, both one approach and its exact opposite will be equally effective.

Kalev emphasizes that she’s under no illusion that a practice as entrenched as diversity training is going away. And so she wants readers to take from her work the realization that there are ways it can be improved: by making programs voluntary, by leaving out the legal material, by designing them so that people don’t feel targeted, and by combining them with more explicit - and effective - measures like minority outreach, mentoring, and even old-fashioned affirmative action programs like setting gender- and race-based promotion targets and making someone responsible for them.

She’d also like to see more people doing what she’s doing: trying to figure out what we can reasonably expect from programs that offer to train away our deeply ingrained, and often unconscious, biases.

 

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City advised to add cash, alter pension fund requirements

Despite gains, benefits reserve is below suggested health ratio.

By Sarah Coppola
AMERICAN-STATESMAN STAFF
Published: 10:34 p.m. Tuesday, March 23, 2010

Looking to shore up the city's main pension fund, Austin officials might dip deeper into city coffers already stretched thin by recent budget cuts. The city also might change eligibility rules for future employees, requiring that they work longer before they can retire and collect pension benefits.

The fund, which covers about 8,000 employees and 4,000 retirees, has begun to rebound after a 26 percent drop in 2008, but it is still facing long-term problems, city budget staffers said.

The city should add an extra $9 million to the fund every year for the next three years, budget officials told a City Council committee Tuesday.

Currently, employees can retire and collect pension benefits if they are vested with five years and are 62 years old, 55 with 20 years of service, or any age with 23 years of service. A financial consulting firm recommended that the city change those requirements for future employees to: 67 years old, any age with 30 years of service, or 65 with 10 years of service.

And PFM Advisors, a consulting firm hired by the city, said the city should offer reduced pension benefits to future employees who retire early, at 55 with 20 years of service, instead of the full benefits offered to that group now. The City Council, a pension board that includes city employees, and the Legislature would have to OK any changes.

The council could increase the city's contribution to the fund at any time, though extra money might be hard to find without significant cuts elsewhere amid a citywide budget crunch that is approaching its third year.

There are no plans to alter the pension benefits or eligibility rules for current retirees and employees, which are protected by law, Deputy Chief Financial Officer Jeff Knodel said. The fund is not in immediate danger of failing to cover its costs, but it will need changes to become healthier over the long term, he said.

"The more time that passes without solutions, absent substantial investment returns, the more severe the problem becomes," he told the City Council's audit and finance committee Tuesday.

Austin has separate pension funds for firefighters and police that are in better financial shape. Under labor contracts with those groups, the city already plans to contribute more than it does now to those funds from 2011 to 2013.

Austin's main pension fund covers non-public-safety employees, who make up most of the city work force. Though that fund gained 25 percent in 2009, it only has about 72 cents of every dollar needed to cover benefits promised to current and future employees. That so-called funded ratio is a barometer of the fund's health, and experts recommend that it be at least 80 percent. Except for 2007 and 2009, when the ratio for Austin's pension fund increased slightly, it has dropped every year since 2000, the last time the fund had enough money to cover all of its liabilities over the long term.

The city hired PFM Advisors last spring for $50,000 to suggest possible changes to the pension fund. In addition to the eligibility changes, the firm recommended that Austin consider increasing the vesting period from five years to 10 and lowering a multiplier the city uses to calculate pension benefits to make it more in line with other pension funds nationwide, PFM managing director Jim Link said. He also suggested that the city nix its current practice of allowing employees to buy extra years toward retirement and consider creating a hybrid program that blends a pension plan with a plan similar to a 401(k) retirement savings plan. Knodel said the city should change future employees' pension benefits; budget staffers will review PFM's ideas and present a plan to the City Council and pension board later this spring.

"In some respects, we're working with a program that is benefit rich. If you join the city at age 55, and work here for seven years, you're funded for the rest of your life," said Council Member Bill Spelman, who serves on the council finance committee and the pension board. It's clear, he said, "that we're going to need to back off our benefits package for new employees."

Non-public-safety employees pay 8 percent of their base salaries into the pension fund - about $34.3 million last year. That rate took effect in 1999, the last time city employees voted to increase their contribution level.

The city used to contribute to the fund an annual amount equal to 8 percent of employees' base salaries. Then the tech bust and stock market fallout from the Sept. 11 terror attacks slowed the fund's investment returns. So the City Council passed a plan in 2005 to shore up the fund, agreeing to add an extra 1 percent of employees' base salaries every year for four years. The city's contribution rate is now 12 percent, or $45.1 million last year. But the extra money has not been enough to significantly boost the fund, Knodel said.

He is recommending that the city contribute an extra 2 percent, or $9 million, every year for the next three years - 18 percent by 2013. About $6.5 million would come from utility and enterprise departments such as Austin Energy and the Aviation Department, which run on fees and charges from things like electricity service, and $2.5 million from the city's main operating fund, which is made up of property taxes, sales taxes and fees and pays for most city services, such as parks, libraries and police.

Knodel said that change would make Austin comparable with other major Texas cities, such as Houston, which contributes 19.5 percent of employee salaries to its pension fund, and Dallas, which contributes 15.6 percent.

There are no plans to ask employees to increase their contribution rate because they did not receive pay raises this year and are contributing a percentage that is greater than employees in most other municipal pension systems, Knodel said.

 

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Parker increases insurance premiums of city retirees

By BRADLEY OLSON
Copyright 2010 Houston Chronicle
March 29, 2010, 10:16PM
 
Working to close a looming $100 million budget shortfall projected for next year, Mayor Annise Parker has sharply increased the monthly insurance premiums that thousands of retired city of Houston employees must pay, prompting outrage from retirees.

Beginning May 1, more than 4,000 retirees under 65 will face a nearly 50 percent increase in their insurance premiums, a budget fix the mayor imposed without consulting City Council.

"The city is trying to balance their budget and they're doing so off the backs of the employees," said Paulia Elam, a former employee of the city's legal, aviation and library departments. "These are people who worked for the city for 25, 30 years, picking up trash, crawling through sewage and, for police and firefighters, risking their lives every day. At a time in their lives when they have the most need for health care, they might not be able to afford the premiums. ...That's a tough pill to swallow."

The change makes Houston one of many cities and states around the country that have looked to cutting retiree health costs or benefits to balance shaky budgets. In many cities, those efforts have been stalled because such payments are governed by contractual obligations.

In Houston, the city is contractually bound to pay for 79 percent of the health care costs of active employees. Retiree contributions, however, are not subject to those regulations.

For retirees under 65 with two or more dependents in the most highly utilized benefit plan, costs will increase from $790 a month to $1,179, according to a schedule presented to council members Monday. Across all categories of retired employees under 65, the average monthly increase will be about 49 percent. Previously, the city contributed 64 percent of the cost of health care for retirees in that group, but will contribute 52 percent under the new plan.

The city will save an estimated $7 million with the change.

Parker said the city decided to restructure the benefit payments because retirees under 65 have far higher use of insurance claims than active employees or retirees over 65, whose insurance is subsidized by Medicare.

"It was not an easy decision on my part," Parker said. "I understand how important that benefit is."

'Priced out of benefits'
Bill Elkin, executive director of the Houston Police Retired Officers Association, said the reason insurance usage is high among recently retired employees under 65 is that many put off medical care while they were serving the city.

They wait until retirement to have back surgery or hip replacements that may be necessary because of the grueling nature of the work, he said.

"People are being priced out of benefits," Elkin said. "I'm hoping City Council will take another look at this thing."

Although Parker said Council could reconsider the decision, which she signed into effect earlier this month, she warned that the city would be forced to find another way to come up with $7 million in savings.

Several City Council members said they needed to study the matter further to know whether the mayor made the right decision, although others questioned the move.

Councilman C.O. Bradford, a former Houston police chief, said too much of the city's annual health benefit cost increases were being pushed to this one group.

"It just seems to me grossly unconscionable," he said.

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Week of March 29, 2010

 Public Pension Funds Are Adding Risk to Raise Returns

New York Times
By MARY WILLIAMS WALSH
Published: March 8, 2010

States and companies have started investing very differently when it comes to the billions of dollars they are safeguarding for workers' retirement.

Companies are quietly and gradually moving their pension funds out of stocks. They want to reduce their investment risk and are buying more long-term bonds.

But states and other bodies of government are seeking higher returns for their pension funds, to make up for ground lost in the last couple of years and to pay all the benefits promised to present and future retirees. Higher returns come with more risk.

"In effect, they're going to Las Vegas," said Frederick E. Rowe, a Dallas investor and the former chairman of the Texas Pension Review Board, which oversees public plans in that state. "Double up to catch up."

Though they generally say that their strategies are aimed at diversification and are not riskier, public pension funds are trying a wide range of investments: commodity futures, junk bonds, foreign stocks, deeply discounted mortgage-backed securities and margin investing. And some states that previously shunned hedge funds are trying them now.

The Texas teachers' pension fund recently paid Chicago to receive a stream of payments from the money going into the city's parking meters in the coming years. The deal gave Chicago an upfront payment that it could use to help balance its budget. Alas, Chicago did not have enough money to contribute to its own pension fund, which has been stung by real estate deals that fizzled when the city lost out in the bidding for the 2016 Olympics.

A spokeswoman for the Texas teachers' fund said plan administrators believed that such alternative investments were the likeliest way to earn 8 percent average annual returns over time.

Pension funds rarely trumpet their intentions, partly to keep other big investors from trading against them. But some big corporations are unloading the stocks that have dominated pension portfolios for decades. General Motors, Hewlett-Packard, J. C. Penney, Boeing, Federal Express and Ashland are among those that have been shifting significant amounts of pension money out of stocks.

Other companies say they plan to follow suit, though more slowly. A poll of pension funds conducted by Pyramis Global Advisors last November found that more than half of corporate funds were reducing the portion they invested in United States equities.

Laggards tend to be companies with big shortfalls in their pension funds. Those moving the fastest are often mature companies with large pension funds, and who fear a big bear market could decimate the funds and the companies' own finances.

"The larger the pension plan, the lower-risk strategy you would like to employ," said Andrew T. Ward, the chief investment officer of Boeing, which shifted a big block of pension money out of stocks in 2007. That helped cushion Boeing's pension fund against the big losses of 2008.

Shedding stocks gave Boeing "material protection right when we needed it most," Mr. Ward said. By the time the markets had bottomed out last March, Boeing's pension fund had lost 14 percent of its value, while those of its equity-laden peers had lost 25 to 30 percent, he said.

"We estimated that the strategy saved our company in the short term right around $4 or $5 billion of funded status," he said.

Boeing and other companies seeking to reduce their investment risk are moving into fixed-income instruments, like bonds - but not just any bonds. They are buying and holding bonds scheduled to pay many years in the future, when their retirees expect their money.

The value of the bonds may fall in the meantime, just like the value of stocks. But declining bond prices are not such a worry, because the companies plan to hold the bonds for the accompanying interest payments that will in turn go to retirees, not sell them in the interim.

Towers Watson, a big benefits consulting firm, surveyed senior financial executives last year and found that two-thirds planned to decrease the stock portion of their companies' pension funds by the end of 2010. They typically said their stock allocations would shrink by 10 percentage points.

"That's 10 times the shift we might see in any given year," said Carl Hess, head of Towers Watson's investment consulting business. Economists have speculated that a truly seismic shift in pension investing away from stocks could be a drag on the market, but they say it would not be long-lasting.

Corporate America's change of heart is notable all on its own, after decades of resistance to anything other than returns like those of the stock markets. But it's even more startling when compared with governments' continued loyalty to stocks. When governments scale back on the domestic stocks in their pension portfolios these days, it is often just to make way for more foreign stocks or private equities, which are not publicly traded.

Government pension plans cannot beef up their bonds that mature many, many years from now without dashing their business models. They use long-range estimates that presume high investment returns will cover most of the cost of the benefits they must pay. And that, they say, allows them to make smaller contributions along the way.

Most have been assuming their investments will pay 8 percent a year on average, over the long term. This is based on an assumption that stocks will pay 9.5 percent on average, and bonds will pay about 5.75 percent, in roughly a 60-40 mix.

(Corporate plans do their calculations differently, and for them, investment returns are a less important factor.)

The problem now is that bond rates have been low for years, and stocks have been prone to such wild swings that a 60-40 mixture of stocks and bonds is not paying 8 percent. Many public pension funds have been averaging a little more than 3 percent a year for the last decade, so they have fallen behind where their planning models say they should be.

A growing number of experts say that governments need to lower the assumptions they make about rates of return, to reflect today's market conditions.

But plan officials say they cannot.

"Nobody wants to adjust the rate, because liabilities would explode," said Trent May, chief investment officer of Wyoming's state pension fund.

The $30 billion Colorado state pension fund is one of a tiny number of government plans to disclose how much difference even a slight change in its projected rate of return could make. Colorado has been assuming its investments will earn 8.5 percent annually, on average, and on that basis it reported a $17.9 billion shortfall in its most recent annual report.

But the state also disclosed what would happen if it lowered its investment assumption just half a percentage point, to 8 percent. Though it might be more likely to achieve that return, Colorado would earn less over time on its investments. So at 8 percent, the plan's shortfall would actually jump to $21.4 billion. Contributions would need to increase to keep pace.

Colorado cannot afford the contributions it owes, even at the current estimated rate of return. It has fallen behind by several billion dollars on its yearly contributions, and after a bruising battle the legislature recently passed a bill reducing retirees' cost-of-living adjustment, to 2 percent, from 3.5 percent. Public employees' unions are threatening to sue to have the law repealed.

If Colorado could somehow get 9 percent annual returns from its investments, though, its pension shortfall would shrink to a less daunting $15 billion, according to its annual report.

That explains why plan officials are looking everywhere for high-yielding investments.

Mr. May, in Wyoming, said many governments were "moving away from the perceived safety and liquidity of the investment-grade market" and investing money offshore, but he said he was aware of the risks. "There's a history of emerging markets kind of hitting the wall," he said.

Last year, the North Carolina Legislature enacted a measure to let the state pension fund invest 5 percent of its assets in "credit opportunities," like junk bonds and asset-backed securities from the Federal Reserve's Term Asset-Backed Securities Loan Facility, an emergency program created to thaw the frozen markets for such securities.

The law also lets North Carolina put 5 percent of its pension portfolio into commodities, real estate and other assets that the state sees as hedges against inflation. A summary of the bill issued by the state's treasurer and sole pension trustee, Janet Cowell, said it would provide "flexibility and the tools to increase portfolio return and better manage risk."

But some think they see new risks.

"It doesn't pass the smell test," said Edward Macheski, a retired money manager living in North Carolina. "North Carolina's assumption is 7.25 percent, and they haven't matched it in 10 years." He went to a recent meeting of the state treasurer's advisory board, armed with a list of questions about the investment policy. But the board voted not to permit any public discussion.

Wisconsin, meanwhile, has become one of the first states to adopt an investment strategy called "risk parity," which involves borrowing extra money for the pension portfolio and investing it in a type of Treasury bond that will pay higher interest if inflation rises.

Officials of the State of Wisconsin Investment Board declined to be interviewed but provided written descriptions of risk parity. The records show that Wisconsin wanted to reduce its exposure to the stock market, and shifting money into the inflation-proof Treasury bonds would do that. But Wisconsin also wanted to keep its assumed rate of return at 7.8 percent, and the Treasury bonds would not pay that much.

Wisconsin decided it could lower its equities but preserve its assumption if it also added a significant amount of leverage to its pension fund, by using a variety of derivative instruments, like swaps, futures or repurchase agreements.

It decided to start with a small amount of leverage and gradually increase it over time, but word of even a baby step into derivatives elicited howls of protest from around the state.

The big California pension fund, known as Calpers, was already under fire for losing billions of dollars on private equities and real estate in the last few years. So far it has stayed with those asset classes, while negotiating lower fees and writing off some of the most troubled real estate investments.

It announced in February that it had started looking into whether it should lower its expected rate of investment return, now 7.75 percent a year. It has embarked on a study, but a spokesman said that process would not be done until December, safely after the coming election.

 

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How we can change E-Verify for the better

Marc Rosenblum: Dallas Morning News
03:54 PM CST on Thursday, March 4, 2010

A rare point of agreement among diverse factions in the immigration debate is that comprehensive reform must allow employers to distinguish between legal and unauthorized workers and so eliminate the "jobs magnet" that fosters illegal immigration.

Yet a recent analysis of the voluntary E-Verify system raises red flags about the timing and design of an expanded employment verification system. The research firm Westat, under contract with the Department of Homeland Security, found that E-Verify failed to catch 54 percent of unauthorized workers checked.

Expanded employment verification is necessary, but E-Verify - which was not designed to detect identity fraud - might not be the best platform to get there. And making E-Verify mandatory without broader immigration reform may do little to decrease illegal immigration, while harming some lawful workers and businesses.

To be successful, a verification screening system must be accurate: Illegal workers should be flagged and legal workers cleared. It must also be efficient: It should give employers a simple red-light/green-light response.


Notwithstanding significant improvements, E-Verify fails to meet these goals. It prevents the use of some fake IDs but remains vulnerable to identity fraud (use of another person's legitimate identity information). And E-Verify fails to reliably confirm legal workers.

Lawmakers, who soon may consider making E-Verify mandatory, should take two lessons from the Westat report.

First, E-Verify has serious design flaws that must be addressed before any expansion. E-Verify depends exclusively on employers to negotiate the verification process. Many employers find careful compliance to be burdensome, especially when the system cannot return an immediate confirmation (about 5 percent of cases), and it may take weeks to resolve a worker's authorization. Employers often assume these workers are illegal and fire or suspend them - but about one-fifth are U.S. citizens or legal immigrants. At this rate, roughly 600,000 lawful workers would be wrongfully non-confirmed each year under mandatory E-Verify.

The best way to avoid false confirmations and non-confirmations and to prevent employer misuse would be to replace today's employer-centric approach with an "employer-neutral" system.

The Migration Policy Institute, in a report last year, recommended that Congress authorize new measures to strengthen E-Verify while also creating voluntary pilot programs to test promising alternatives.

Under one model, a pre-verification system, workers would use a PIN number to "check in" with the system prior to accepting new employment, allowing them to correct database errors and guard their records against identity theft. Employers would submit the worker's verification receipt and would receive an immediate red-light/green-light response along with the worker's photograph.

The other two models would depend on more secure identity cards or a biometric scanning system requiring employers to capture fingerprints from workers. All three models - like E-Verify - have strengths and weaknesses, and all would be costly, which is why they should start as pilot programs and be thoroughly evaluated.

The second lesson courtesy of Westat is that employment verification is necessary but cannot fix our broken immigration system on its own. Mandatory E-Verify without broader immigration reform may produce more identity theft and off-the-books employment. With millions of unauthorized immigrants and businesses invested in existing labor markets, there are simply too many factors working against E-Verify for it to succeed without moving more employers and workers into the legal system. The risks of expanding too quickly are especially grave given the fragile state of the U.S. economy.

Effective employment eligibility screening will be the linchpin of any successful immigration reform, and it is essential that we create the conditions for it to succeed by finding the right model for verification and by linking enforcement to broader immigration reforms.

 

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Poll: Financially pinched, young adults lose faith

Houston Chronicle
Associated Press
March 9, 2010, 1:47PM
 
WASHINGTON - Young adults are financially anxious, worried that they can't meet their educational, housing and health care needs, according to a new poll that exposes a growing pessimism about achieving the American Dream.

The poll by Harvard's Institute of Politics found that six out of 10 of those surveyed worry they may not meet their current bills and obligations. Nearly half of those attending college wonder whether they will be able to afford to stay in school. And more than eight out of 10 said they expect difficulty finding a job after graduation.

Fewer than half said they believe they will be better off than their parents when they reach their parents' age.

With the country in the midst of a slow economic recovery with nearly 10 percent unemployment, the data finds a deep sense of gloom among 18-29 year olds. The grim mood could have immediate political consequences, and it could also shape that generation's long-term faith in government and in its ability to improve their daily lives.

"We have a generation that is committed to their community, but unless they can restore their levels of trust in some of the big American institutions, we will have lost a great opportunity to engage some of the best and brightest," Institute of Politics polling director John Della Volpe said.

Four out of 10 respondents described themselves as politically independent, 36 percent affiliated themselves with Democrats and 23 percent said they considered themselves Republican. But young Republicans displayed more enthusiasm for the 2010 midterm elections, with those who said they disapproved of President Barack Obama's job performance saying they were more likely to vote than those who said they approved of his performance.

Still, Obama enjoys a 56 percent approval rating among young adults, even though majorities of 51 to 56 percent disapprove of how he has handled high-profile issues during his first year in office, including health care, the economy, the federal deficit, Iran and Afghanistan.

The distinction that these voters make between the president and the issues worries Democratic politicians who fear they will not benefit from Obama's appeal.

Nearly four out of 10 of those surveyed said the country was on the wrong track. About as many said they were unsure about the country's direction. Only 23 percent said the country was headed in the right direction.

The economy dwarfed health care and the wars in Iraq and Afghanistan as the issue that concerned young adults the most. Forty-five percent cited the economy as their top worry, while only 17 percent mentioned health care and 6 percent cited the wars.

Despite their immediate financial concerns, 51 percent of these young adults said the president and Congress should seek to keep the budget deficit down, "even though it may mean it will take longer for the economy to recover."

The poll surveyed 3,117 U.S. citizens between the ages of 18 and 29. It was conducted between Jan. 29 and Feb. 22, and it has a margin of sampling error of plus or minus 2.3 percentage points.

The survey was conducted by Knowledge Networks, which initially contacted people using traditional telephone and mail polling methods and followed up with online interviews. Those chosen who had no Internet access were given it for free.

 

 

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Spotlight on the Non-Recovery in Texas; Heads Still Buried In The Sand

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com/
Posted: Sun, 14 Mar 2010 00:31:00 +0000

Here are a pair of articles about the recovery in Texas that simply did not happen. Please consider New data, new story on jobs.
http://www.statesman.com/business/employment/new-data-new-story-on-jobs-332838.html

For much of 2009, Central Texas business leaders hung their hats on reports that showed, even in a recession, Austin was still adding jobs.

Turns out there was a problem with those positive reports: They were wrong.

Revised figures show Austin lost more in '09, and numbers began to decline earlier than thought.

The revised data also show that Texas as a whole had a tougher job market last year than thought. The state lost 354,000 jobs in 2009, which is 78,000 more than the 276,000 previously estimated, according to the updated data.

The commission and its counterparts around the country revise their job data each year based on newly available information from employers' tax records that show how many people were on payrolls. The monthly numbers are estimates, based on surveys from employers.

The California Employment Development Department on March 1 reported the state had lost 292,000 more jobs in 2009 than officials had thought; the new estimate is 871,000 jobs cut, compared with the earlier estimate of 579,000. Oregon reported losing 28,000 more jobs in 2009 than previously estimated.

Texas cannot escape budget shortfall

It goes to figure when unemployment is soaring, tax revenues will drop off. And so they did. Please consider Officials: State cannot escape budget shortfall.
http://www.statesman.com/news/texas-politics/officials-state-cannot-escape-budget-shortfall-333052.html

The Texas economy seems to have turned a corner, but the improvement will not be enough for the state to avoid a significant shortfall in the next budget, state officials said Monday.

Sales tax collections are slowly picking up as more jobs are added in Texas, said John Heleman , the Texas comptroller's chief revenue estimator.

In February, the state's sales tax collections were down 8.8 percent compared with the same month a year earlier. Though still in the red, the February figure looked better than the previous months' double-digit decreases that have put the state 13 percent behind last year's collections six months into the budget year.

"One month certainly doesn't make a trend, but it is encouraging to see that we are beginning to move in the right direction," said Heleman, who added that he expects to see sales tax growth starting this summer.

The state's sales tax revenue collection is a key indicator of Texas' fiscal health because that money fills more than half of the state's general revenue fund, which pays for expenses such as education, health care and prisons.

Even so, the state's budget shortfall is expected to be about $11 billion at a minimum and could reach as high as $15 billion, John O'Brien, the executive director of the Legislative Budget Board, told the House Appropriations Committee.

 

Heads In The Sand

It is pretty amazing when you can put a positive spin on horrendous data like this:

"In February, the state's sales tax collections were down 8.8 percent compared with the same month a year earlier. Though still in the red, the February figure looked better than the previous months' double-digit decreases that have put the state 13 percent behind last year's collections six months into the budget year."

Good Grief.

Nationally, retail sales for February 2009 were completely shell-shocking horrendous, and December 2009, and January 2010 figures were revised lower. Please see Please consider Stimulus About To Wither On Vine; A look At February Retail Sales for details.


Texas could not even beat remarkably easy year over year comparisons, at least judging from national sales numbers. Regardless, there should be no conceivable way to spin that data positive, yet John Heleman, the Texas comptroller's chief revenue estimator, managed to do just that.

 

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Week of March 22, 2010

Robertson County: college student ordered to pay $22 million in damages for texting while driving which caused a car accident that killed another college student

 Published Friday, March 19, 2010 12:04 AM

Jury orders $22M award

By MATTHEW WATKINS
matthew.watkins@theeagle.com

A Texas A&M University student has been ordered to pay $22 million in damages after a Robertson County jury found that his texting while driving caused a car accident that killed a Baylor University senior biochemistry major.

Lawyers said the damages awarded to the family of Megan Small, who was 21 when she died, and Laura Gleffe, the driver of another car that was run off the road in the accident, may be the most a jury has handed out in Robertson County.

Hunter Craft, a lawyer for Small's family, said he was surprised by the verdict, but praised the jury for its decision.

"This case isn't about money," Craft said of the Nov. 25, 2007 wreck. "This case is about sending a message to everybody and protecting people in the future, and in order for them to be able to accomplish that, we told them they were going to have to make a significant award."

The jury deliberated for about 21/2 hours after a two-day trial that ended late Wednesday.

Small was killed while driving from her home in Houston back to school in Waco. She was north on Texas 6 near Calvert. Reed Vestal was heading the other direction when he crossed the center line and hit Small head-on, police reports state. Gleffe, Small's lifelong best friend, was following behind her and was run off the road, causing her car to roll.

Vestal initially denied having a phone when the wreck occurred, but phone records indicated that he had sent and received 15 text messages and made seven phone calls in the 45 minutes before the wreck, Craft said.

Plaintiff's lawyers also presented evidence that Vestal has received multiple speeding tickets since receiving his license.

Vestal's lawyer didn't return a message seeking comment Thursday afternoon.

Craft said Vestal declared bankruptcy prior to the trial, and won't have to pay any of the damages. His auto insurance company will be responsible for some of the award.

Craft said the Small family's intention was always to send a message about the dangers of texting while driving, not to collect damages.

"I think the jury understands it is a growing problem," he said. "[Vestal] tried to say he didn't know any better, and he didn't know it was dangerous."

Prior to Wednesday's verdict, Craft said the largest wrongful death jury award he was able to find in Robertson County records was $6.79 million in 2002.

"The lawyer that took that verdict told me that this was the new record," he said.

   

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The $2 Trillion Hole
By JONATHAN R. LAING

Promised pensions benefits for public-sector employees represent a massive overhang that threatens the financial future of many cities and states.
 
LIKE A CALIFORNIA WILDFIRE, populist rage burns over bloated executive compensation and unrepentant avarice on Wall Street.

Deserving as these targets may or may not be, most Americans have ignored at their own peril a far bigger pocket of privilege -- the lush pensions that the 23 million active and retired state and local public employees, from cops and garbage collectors to city managers and teachers, have wangled from taxpayers.

Some 80% of these public employees are beneficiaries of defined-benefit plans under which monthly pension payments are guaranteed, no matter how stocks and other volatile assets backing the retirement plans perform. In contrast, most of the taxpayers footing the bill for these public-employee benefits (participants' contributions to these plans are typically modest) have been pushed by their employers into far less munificent defined-contribution plans and suffered the additional indignity of seeing their 401(k) accounts shrivel in the recent bear market in stocks.

And defined-contribution plans, unlike public pensions, have no protection against inflation. It's just too bad: Maybe some seniors will have to switch from filet mignon to dog food.

 
James Bennett
 
Sweet retirement for public servants could lead to severe cuts in basic services. Most public employees, if they hang around to retirement, can count on pensions equal to 75% to 90% of their pay in their highest-earning years. And many public employees earn even more in retirement than their best year's base compensation as a result of "spiking" their last year's income by working ferocious amounts of overtime and rolling in years of unused sick and vacation days into their final-year pay computation.

A survey by the watchdog group California Foundation for Fiscal Responsibility found that some 15,000 Golden State public employees are knocking down $100,000 or more, while some 200, mostly police and fire chiefs and school administrators, are members of the $200,000-a-year-and-up club.

THE PROSPECTS ARE BLEAK for many state and local governments as a result of all this. According to a survey last month by the Pew Center on the States, a nonpartisan research group, eight states -- Connecticut, Illinois, Kansas, Kentucky, Massachusetts, Oklahoma, Rhode Island and West Virginia -- lack funding for more than a third of their pension liabilities. Thirteen others are less than 80% funded.

Governments could fill that gap by raising property, sales and income taxes, but most are wrestling with huge revenue shortfalls in trying to balance their budgets.

The more likely outcome is dramatic cuts in essential services, such as police and fire protection, health spending, education and infrastructure improvements, in order to cover ballooning pension payments. State and municipalities, after all, must do something: Most have a legal obligation to pay out earned pension benefits. And some don't even have the courage to switch new teachers, bureaucrats and police to a defined-contribution system, to prevent the funding problem from worsening as time rolls on.

THUS, MORE DEBT DEFAULTS and bankruptcy filings probably lie ahead, unsettling the $2.7 trillion municipal-bond market. The possibility of taxpayer revolts and likely insolvencies has shaken some investors' confidence in general-obligation bonds -- those backed by the "full faith and credit" of the states or localities. Once the gold standard for munis, GOs are under a cloud in financially troubled areas.

The size of the legacy-pension hole is a matter of debate. The Pew report puts it at $452 billion. But the survey captured only about 85% of the universe and relied mostly on midyear 2008 numbers, missing much of the impact of the vicious bear market of 2008 and early 2009. That lopped about $1 trillion from public pension-fund asset values, driving down their total holdings to around $2.7 trillion.

Other observers think the eventual bill due on state pension funds will be multiples of the Pew number. Hedge-fund manager Orin Kramer, who is also chairman of the badly underfunded New Jersey retirement system, insists the gap is at least $2 trillion, if assets were recorded at market value and other pension-accounting practices common in Corporate America were adopted.

Finance professors Robert Novy-Marx at the University of Chicago and Joshua Rauh of Northwestern University asserted in a recent paper that the funding gap for state pension plans alone might exceed $3 trillion, in part because state funds are using an unrealistic long-term annual investment return of 8% to compute the present value of future payments to retirees, as is permitted in government standards for pension-fund accounting.

This establishes a "false equivalence" between pension liabilities and the likely investment outcomes of state investment portfolios, which are increasingly taking on more risk by beefing up their exposure to stocks, private-equity deals, hedge funds and real estate. Using a much lower expected return -- say, one at least partially based on the riskless rate of return on government securities -- would both properly and dramatically boost the present value of the pensions' liabilities while decreasing their likely ability to meet them. The academic pair, using modern portfolio theory, claim that state funds, as currently configured, have only a one-in-20 chance of meeting their obligations 15 years out.

MAKING THE STATE AND local pension problem all the more trying is that government entities can do little to wriggle out of their exposure, even if spending on essential services is threatened. The constitutions of nine states, including beleaguered California and Illinois, guarantee public-pension payments. And most other states have strong statutory or case-law protections for these obligations. "One shouldn't be surprised by this, since state legislators, state and local judges and the state attorneys general are beneficiaries of the self-same public pension funds that they've done so much to promote and protect," Orin Kramer notes wryly.

True, a dozen or so states, including New York, Nevada, Nebraska, Rhode Island and New Jersey, are attempting reforms such as raising retirement ages, cutting pension-benefit formulas, boosting employee contributions, curbing income "spiking" and partially switching employees to less costly defined-contribution plans. But these changes affect almost exclusively new employees and do little to solve the existing funding gap.

The municipal-bond market, for one, seems vulnerable to the growing public pension mess. Warren Buffett, in his 2007 Berkshire Hathaway annual report, inveighed against the "woefully inadequate" funding in many public pension funds to meet "huge" promised payments to retirees. True to his word, Buffett has sold precious little municipal-bond insurance in a Berkshire Hathaway unit he set up for that purpose in 2008.

Jim Spiotto, a muni-bond restructuring expert at the Chicago law firm Chapman & Cutler, argues the pension crisis is quickly reaching a tipping point after being ignored for years.

 "I just can't believe that any bond issuer would be willing to suffer the stigma of defaulting on their general-obligation debt as a result of having to fund future pension obligations, but such a situation is no longer beyond the realm of possibility," he observes.

For proof, look no further than the San Francisco Bay city of Vallejo, which filed for Chapter 9 bankruptcy in 2008 as a result of insolvency.

The California municipality, which has 120,000 residents, is proposing a three-year moratorium on all interest and principal payments on the $53 million of municipal debt that is backed by its general fund. But it is keeping fully intact its $84 million in pension-fund obligations.

SOVEREIGN DEFAULT IS A hot topic these days. With Greece tottering and other European countries in fiscal distress, some have even voiced the possibility that a U.S. state -- also considered a sovereign entity -- could suffer a general-obligation debt default.

Says Todd Zywicki, a law professor at George Mason University: "In many ways, some of our states are like General Motors before its bankruptcy, suffering from falling revenue, borrowing money to cover operating expenses and operating under crushing legacy health and pension liabilities. It's entirely possible, given the gigantic size of the pension liabilities, that some states might do what was once the unthinkable at GM and default."

Such assessments might be alarmist. A rebound in the U.S. economy and a continued rally in stocks would do a world of good for ailing public pension funds. And only one state -- Arkansas in 1934 -- has defaulted on its GO bonds in the past century with their holders suffering losses. Arkansas, however, was a special case. In addition to the Great Depression, it was ailing from large local debts it had assumed as a result of catastrophic floods in the 1920s.

But what if the stock-market rally falters, the economy doesn't return to full health, jobs remain scarce and tax revenues remain depressed?

According to muni-bond expert Spiotto, most defaults at the municipal level have come as a result of shortfalls in the revenue generated by quasi-public projects, such as hospital additions, sports facilities, housing-development infrastructure, giant garbage incinerators and the like, rather than systemic financial failures of major localities like Vallejo. And even after New York City's debt default in 1975, municipal-debt holders were ultimately made whole.

NONETHELESS, SOME MAJOR BOND investors are altering their strategies in light of the impending pension crisis.

John Cummings, the executive vice president in charge of the $27 billion muni portfolio at giant fixed-income house Pimco, says it is underweighting the GOs of the "poster boys" of debt problems and pension under- funding -- California, Illinois, New Jersey and Rhode Island. Revenue bonds -- those backed by the money generated by a specific source -- have become more attractive to Pimco, particularly if they're backed by essential services like water authorities, sewer systems or school districts and have dedicated, stable revenue streams that can't be diverted to other uses. Revenue bonds funding new projects could be considerably more risky.

Says Cummings: "We want to stay as far away as possible from bonds that depend on the politicians and general funds of financially shaky states and smaller issuers unless the price is right. You ask California Treasurer Bill Lockyer, one of the greatest bond salesman ever, about the state's pension situation and all you get back is a thousand-yard stare and a quick change of subject. That's concerning."

A spokesman for Lockyer told Barron's that the treasurer "realizes that the pension-underfunding problem is serious, unsustainable and therefore needs to be fixed. He wants to ensure that any reform is fair to all stakeholders, including the state, public employees and taxpayers."

No one, of course, would dispute that public servants deserve adequate retirements, particularly the 25% to 30% that lack Social Security coverage. But the old saw that rich retirement packages are a necessary inducement to attract good employees to public payrolls because of below-average pay scales no longer is true.

According to the latest compensation survey by the Bureau of Labor Statistics, the average state and local employee outearns his counterpart in the private economy with an hourly wage of $26.11, versus $19.41. That's before benefits (pensions, health care, paid vacations and sick days and leaves) drive the disparity even higher, to $39.60 an hour for public employees and $27.42 for private workers.

Even if one looks at pay received by so-called management and professional employees in each realm, fat benefits in the public sector drive the total compensation received by state and local managers to almost dead-even with private-sector managers -- $48.15 versus $48.17.

THE CURRENT STATE AND local pension crisis has many fathers. State and local governments have been under-funding their pension systems for a decade or more, under the misapprehension that the stock-market boom of the 1990s would continue and bail out any shortfalls. The underfunding has continued with a vengeance over the past two years as budgets were slashed to eliminate deficits.

For example, last year New Jersey, under Gov. Jon Corzine -- a financially savvy former Goldman Sachs chief -- contributed only $105 million, instead of an actuarially determined $2.3 billion. In all, states and localities kicked in $72 billion in fiscal 2008, far short of adequate funding levels of $108 billion, according to the recent Pew study.

Such behavior is only encouraged by the fact that state and local governments are allowed as much as 30 years to close funding gaps. So it's easy for politicians to kick the can forward, avoiding the pain of boosting taxes and making hard spending decisions. The 30-year amortization periods have an evergreen nature, being renewed and invoked almost every year as the compounding of pension obligations works relentlessly against units of government.

Then, too, pension funds are being hit by baby-boomer retirements. A report from the National Association of State Retirement Administrators underlines this impact: It found that in 2008, for every state retiree collecting benefits, only 2.02 current workers were contributing to pension systems, compared with 2.45 in 2001.

Besides the politicians, the primary culprits are the public-employee unions, which have used their growing power to dramatically enhance pension benefits. They curry favor with sympathetic politicians, lavishing them with large donations and manning campaign phone banks. They also engage in full-court-press lobbying at all levels of state and local government.

One would think legislators or managers in state, county and local governments would protect the taxpayer by bargaining hard. But they clearly don't, because of inherent conflicts of interest.

Nearly all public employers, regardless of their position, benefit from the very same pension programs, either directly or indirectly. Legislators in the main receive the same pension benefits that they lavish on other public employees. And administrators, though subject to independently negotiated contracts, use enriched union pension plans as a valuable bargaining wedge. So there's little incentive to fight the unions with much vigor.

In fact, bad behavior abounds on both sides of the table when it comes to pensions. Plunder!, a recently published book by California journalist Steven Greenhut, details a number of ploys that both workers and management employ to goose their retirement checks. A favorite, he asserts, is income spiking. In the year before they retire, California police, firefighters and prison guards typically start notching hours and hours of overtime that has been reserved for them by less senior colleagues. Whatever they make in that final year is used in the formula that determines the monthly retirement check. Golden State, indeed.

OTHER ABUSES DETAILED in the book include widespread "double-dipping." Public employees can start collecting their full pensions while returning to their old job as consultants. Alternatively, they can take another public-sector job to earn credit toward yet another pension.

Stories are rife around the country of various pension hijinks by public employees. A Contra Costa Times article bemoaned the artistry of a retired local fire chief in San Ramon, Calif., who boosted his annual pension from $221,000 a year to $284,000 by getting credit in his final earnings for unused vacation and sick leave.

In Illinois, veteran police with more than 12 years of service receive annual longevity pay boosts of 4% to 5% in addition to other salary increases. In some local departments, these boosts are all awarded as a 20% bump-up in the first couple months of the year, rather than prorated evenly throughout the year. This, of course, helps police in those jurisdictions get a 20% jump in their presumed compensation -- and, therefore, their pensions -- if they time their retirement date properly.

VALLEJO, CALIF., HAD NO CHOICE but to file a Chapter 9 bankruptcy in 2008 after property-tax revenue collapsed in the housing bust and a major employer -- the U.S. government's Mare Island Ship- yard -- closed. With the tax base hammered, rich public-employee contracts granted in better times were devouring more than 90% of the city's budget.

Though Vallejo is still months away from getting a court decision on whether it can go ahead with its debt-adjustment plan, it has succeeded through contract renegotiations and major layoffs in cutting its employee costs by nearly a quarter.

But the fallout has been brutal. Employee health-care benefits have been decimated. Holders of the city's municipal bonds are unlikely to get all their money back. And violent crime rates have shot up dramatically as a result of reductions in its police force from 158 to 104 officers.

The only thing that will be left untouched? The very thing that tipped the California city into Chapter 9 -- its $84 billion in future pension obligations.

 

 

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The dangerous growth in public-sector unions

Dallas Morning News - Amity Shlaes
02:44 PM CST on Friday, March 5, 2010

In November, bosses at a certain company in Marlboro, N.J., went to employees asking for help. It was a tough stretch, and the unemployment rate had just exceeded 10 percent for the first time since April 1983.

Management told the staff it just couldn't pay rising health care costs without some financial give from the workers. The employees refused to help. In the end, it was the employer that gave ground, committing to a raise of 23 percent over five years. The Newark Star-Ledger, which reported the story of this surrender in detail, noted that the company even promised to spend more on health care benefits by extending family coverage. Employers at other, similar offices throughout the Garden State caved as well.

How could this happen? Because the workers were teachers, public-sector employees, not workers in the private sector. Well, duh, would have been the typical response until recently. Police, firefighters and teachers are holy. So until now, even if you wanted to complain about what was going on in a place like prosperous Marlboro, you couldn't. There was nothing you could do to alter the situation, so why even raise the issue?

But that's changing. The public is beginning to question the legitimacy of public unions' power because taxpayers know that commitments for worker health care and pensions are busting state budgets all over the country.

For those who recoil at these unions and their entrenched power, it is perhaps useful to go back to their history. It reveals that there was nothing inevitable about strong unions in the American public sector.

At the end of World War I, workers in the United States watched the fireworks in the new Soviet Union with envy. They too wanted big unions, both in the private and public sectors.

The Boston police were most hopeful. After all, the working conditions for these men were terrible. An author who toured a police station behind City Hall noted that "the bugs were so voracious that they ate the leather on the police helmets and belts." The policemen joined a union and went on strike.

The Massachusetts governor, Calvin Coolidge, was slow to respond, deeming strike management the job of police Commissioner Edwin Curtis. Curtis fired the men. Afterward, Coolidge weighed in with a line that inspired Ronald Reagan: "There is no right to strike against the public safety by anybody, anywhere, any time." The policemen never got their jobs back. Coolidge's declaration catapulted him to national fame and a slot as vice presidential candidate on the 1920 Republican ticket.

What about Franklin Roosevelt, that champion of the worker? FDR, after all, was the president who signed the Wagner Act of 1935, which gave us modern collective bargaining in private industry.

But when it came to the public employees, FDR stayed close to Coolidge. In 1937, a year when industrial unions were striking furiously, FDR penned a letter to the head of the National Federation of Federal Employees, arguing that when the question regarded pay, hours and grievances, civil servants ought to be no different from those in the private sector. But collective bargaining, FDR wrote, was an exception. It couldn't, he said, "be transplanted into the public service."

The president who finally did give public unions their modern powers was John F. Kennedy. He signed an order in 1962 allowing collective bargaining and gave unions other powers.

The same year, Kennedy also gave public-sector unions a tool to justify higher wages by signing the Salary Reform Act of 1962, which established that there be "comparability" of public-sector pay to pay in the private sector.

Observers understood what Kennedy had done. Later presidents might move against public unions - as Reagan did against PATCO, the air traffic controllers' union. But they couldn't stop the growth.

This reluctance to allow union bargaining in sensitive areas is germane now because the American Federation of Government Employees is petitioning for the right to organize the 40,000 airport-security workers across the country.

Public-sector unions recently surpassed private-sector unions in membership. And the lengths to which Americans have gone to accommodate public-sector unions is extensive and artful.

This may work for some, but the more general marriage between the country's public-sector workers and the private economy isn't a good deal for the economy. Pretty soon we will see states rewriting contracts with employees, dialing down pensions and pay so they line up with the rest of us.

The process will feel nasty, but the states have to do it - even when it involves a teacher.

 

 

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Revised Prostate Cancer Screening Guidelines: What Has--and Hasn't--Changed
 
Article date: 2010/03/03 
By: Rebecca Viksnins Snowden

Men should discuss the benefits and risks of prostate cancer screening with their doctors, according to revised prostate cancer screening guidelines from the American Cancer Society (ACS). While this isn't a radical change from the previous recommendations, the new guidelines offer clearer guidance on what should be discussed.

Since 1980, ACS has released -- and periodically revised -- screening guidelines for the early detection of breast, cervical, colorectal, and prostate cancers. The last set of ACS prostate cancer guidelines was issued in 2001 and modified in 2008.

RESOURCES:

Read the full guidelines in CA: A Cancer Journal for Clinicians
FAQ about the revised guidelines
Prostate Cancer: Early Detection
ACS Decision Aid for Prostate Cancer Screening
What You Should Know About Prostate Cancer Testing
Cancer Facts for Men
Dr. Len's Cancer Blog
ProstateMD: Information for Clinicians

The revised recommendations are based in part on early findings from 2 large studies - one American, one European - which looked at whether prostate cancer screening with the prostate-specific antigen (PSA) blood test and digital rectal exam (DRE) saves lives. The studies had different designs and tested different groups of men.

In the American study, known as the US Prostate, Lung, Colorectal, and Ovarian (PLCO) Cancer Screening Trial, researchers randomly assigned more than 76,600 men to two groups: the men either received "usual care" or had annual PSA tests for 6 years and digital rectal examinations every year for 4 years. The researchers found little difference in prostate cancer death rates between the two groups at 7 years and again at 10 years of follow-up.

In the European trial, known as the European Randomized Study of Screening for Prostate Cancer (ERSPC), researchers randomly assigned 182,000 men from 7 different countries to either a control group or a screening group. Men in the screening group had PSA tests on average every 4 years and a DRE twice over that period of time. After about 9 years, the researchers found that screening reduced the rate of prostate cancer death by 20%. But they also found that 48 men would need to be treated to prevent one death from prostate cancer.

Final results from these studies will not be available for several years.

Difficulty determining who should be treated

Finding and treating prostate cancer early may seem like a no-brainer, but the issue is actually very complicated. Early prostate cancer is typically found using a PSA test and a DRE. There are limits to both methods, but the main issue is that even when these tests find a cancer, they often can't tell how dangerous the cancer is. Some prostate cancers grow slowly and may never cause a man any problems, while others are more aggressive. Treatments for prostate cancer can have a lot of unpleasant side effects like incontinence and impotence that can really affect the quality of a man's life.

Unfortunately, doctors can't be sure which men need treatment and which would be fine without any. And men who are told they have prostate cancer may have a hard time just doing nothing, even if the cancer is unlikely to cause them harm.

Clearly, some prostate cancers would cause problems at some point. For these men, screening and treatment is helpful. But often there's no way to know what the outcome would have been in any particular man's case without treatment.

What the revised guidelines say

Because of these complex issues, the American Cancer Society recommends that doctors more heavily involve patients in the decision of whether to get screened for prostate cancer. To that end, ACS's revised guidelines recommend that men use decision-making tools to help them make an informed choice about testing. The guidelines also identify the type of information that should be given to men to help them make this decision.

ACS recommends that men with no symptoms of prostate cancer who are in relatively good health and can expect to live at least 10 more years have the opportunity to make an informed decision with their doctor about screening after learning about the uncertainties, risks, and potential benefits associated with prostate cancer screening. These talks should start at age 50. Men with no symptoms who are not expected to live more than 10 years (because of age or poor health) should not be offered prostate cancer screening. For them, the risks likely outweigh the benefits, researchers have concluded.

As in earlier guidelines, ACS recommends men at high risk - African-American men and men who have a father, brother, or son diagnosed with prostate cancer before age 65 - begin those conversations earlier, at age 45. Men at higher risk - those with multiple family members affected by the disease before age 65 - should start even earlier, at age 40.

For men who are unable to make a decision about screening after these conversations, ACS recommends the doctor make the call based on his or her knowledge of the patient's health preferences and values.

For men who choose to be screened after discussing the pros and cons with their doctor, the new guidelines make the digital rectal exam (DRE) optional and offer the option of extending the time between screening for men with low PSA levels.

To learn more about the new guidelines, see Prostate Cancer: Early Detection or call 1-800-227-2345.

Reviewed by: Members of the ACS Medical Content Staff

 

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Week of March 15, 2010

Longview city supervisors take diversity training

By JIMMY ISAAC
Longview News Journal
Tuesday, March 02, 2010

The humorous banter at Maude Cobb Activity Center wasn't always specifically about diversity Monday, but it got Longview city supervisors to laughing and joking together.

Aretha P. Ferrell's diversity training session wasn't about comedy, but the laughs turned to conversation among 35 front-line supervisors.

"When you go at your job and you're excited, and you welcome inclusion and diversity ... people are much better, and you're better as an organization," Ferrell said. "People from different religious backgrounds, cultural backgrounds, all of those matter, and it's how we pass the ball amongst each other that matters."

The city organized diversity training to develop synergy in its workforce. Nine in 10 city supervisors is white, while Hispanics account for less than three percent of the municipal workforce.

Four diversity training sessions of four hours each are scheduled through Wednesday, intended to reach some 160 municipal supervisors - or one-fifth of the city's 773-member full-time workforce. Training is costing taxpayers $6,000 from the city's human resources fund, spokesman Shawn Hara said.

"The expectation (for participants) is that you apply it in your workplace," Hara said.

In trying to define the common Longview municipal worker, Ferrell asked participants to describe themselves on a range of characteristics - height, hair color, skin color, age, nationality and religious or political activity.

For the 35 employees in Monday's session, the average worker is a six feet tall, brown- haired, brown-eyed, natural- born American white male from the baby boomer generation who mostly listens to rock and roll, likes Mexican food, is not politically active and believes in the supernatural or ghosts.

Although there are commonalities, there are differences, Ferrell said. That was evidenced by the fact not one of the 35 participants fit every characteristic of the average Longview municipal worker.

"There's a whole new world out there," Ferrell added. "We've got a generation of kids who aren't looking at color. We're looking at the world as a whole because we're looking at all of the different characteristics."

The employees learned their differences. City spokesman Shawn Hara said he is a horrible golfer. Longview Fire Captain Jimmy Purcell is obsessed with hunting. Housing Manager Anji Johnson is an avid fisherwoman. Public Safety Communications Manager Sally Rees has a dozen cats and dogs. City Planner Michael Shirley is an amateur drummer, and two employees identified themselves as "damn Yankees."

Ferrell, a District of Columbia Parks Department official, has worked for the CIA, the Maryland governor's office, county governments in Maryland and New Mexico and the cities of Chicago, Sunnyvale, Calif., and her hometown Fort Worth.

She attended her first diversity training session while working in the CIA, when federal investigators had to determine how to work with an employee who was trans-gendered.

Human Resources Director Karri Hyko said Ferrell will likely return in about two months to reinforce this week's discussions.

Training is one of several initiatives the city is using to foster more diversity in its workplaces. Several city leaders including Hyko are researching to develop a hiring process to attract more minorities to city job vacancies, and cadet programs have been installed in police and fire departments. A training initiative to certify public supervisors from within is also in the works under a collaboration with Stephen F. Austin State University.

Finance Manager Vickie Semety said initiatives to foster diversity won't reduce city workforce standards. For example, more bilingual employees are needed to serve Longview's growing Hispanic population.

"I think our citizen base is a very diverse community," Semety said, "and in order to better serve them, we must have better employees to bring to the table different ideas and different viewpoints."

 

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No is no: More men file sexual harassment claims

Washington Post
 By SAM HANANEL
The Associated Press
Thursday, March 4, 2010; 8:28 AM

WASHINGTON -- John Pilkington's boss wouldn't take no for an answer.

During more than two years as a food runner at an upscale steakhouse inScottsdale, Ariz., Pilkington says his male supervisor groped, fondled and otherwise sexually harassed him more than a dozen times.

"It was very embarrassing," Pilkington said. "I felt like I had to do something because the situation was just so bad."

Now Pilkington, a married father of two, is the star witness in a federal lawsuit against Fleming's Prime Steakhouse & Wine Bar and one of a growing number of men claiming they are victims of sexual harassment in the workplace.

From 1990 to 2009, the percentage of sexual harassment claims filed by men has doubled from 8 percent to 16 percent of all claims, according to the Equal Employment Opportunity Commission.

Women still file the overwhelming majority of sexual harassment claims with the EEOC and state and local agencies. But lawyers at the commission say they've noticed the increase in complaints by men - more than 2,000 were filed in 2009 out of about 12,700 cases.

Male claims made up about 12 percent of all cases a decade ago, but the percentage has continued to rise even as the overall number of sexual harassment complaints has declined. And last year, the percentage of lawsuits the EEOC filed on behalf of male victims hit an all-time high, making up 14 percent of all cases.

"It's certainly possible that there's more sexual harassment of men going on, but it could just be that more men are coming forward and complaining about it," said Ernest Haffner, an attorney in the EEOC's Office of Legal Counsel.

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it's unwelcome romantic advances. Other times, men are picked on because they are gay, perceived as being gay or not considered masculine enough for the work setting.

In the past, some employers might have shrugged off such antics as "boys will be boys" horseplay or fraternity-type behavior. But the EEOC has been filing more lawsuits involving male victims, saying it wants to send a message that such behavior is unacceptable and unlawful.

In November, for example, the Cheesecake Factory restaurant chain agreed to pay $345,000 to six male employees who claimed they were repeatedly sexually assaulted by a group of male kitchen staffers at a Phoenix-area restaurant.

The EEOC said the abusers would drag some victims kicking and screaming into a walk-in refrigerator, touching and grinding against the victims' genitals and take turns simulating rape. The company denied the allegations but agreed to make a financial settlement and educate its employees and managers about sexual harassment.

Susan Strauss, a consultant who advises companies about how to avoid sexual harassment in the workplace, said she's seeing more cases in which men are subject to a sexualized form of hazing.

"If you don't fit the masculine stereotype or are viewed as effeminate, you get picked on in a sexual way to demean you," Strauss said.

Cases involving women making unwanted advances toward men may also be rising as women make up a growing part of the work force. Last year, the Regal Entertainment Group, which operates a national chain of movie theaters, agreed to pay $175,000 to settle a lawsuit by a male employee who claimed a female co-worker repeatedly grabbed his crotch at work.

When the employee complained to his supervisor and the theater's then-general manager, he claims, she failed to stop the harassment and instead retaliated against the victim with unfair discipline and lower performance evaluations.

The number of cases filed by men has grown steadily since a landmark Supreme Court ruling in 1998 held that same-sex harassment is a valid claim under federal anti-discrimination laws. That ruling involved an offshore oil rig worker who said he was subject to humiliating sex-related treatment by other workers, including being sodomized in the shower with a bar of soap.

In Pilkington's case, he claims the restaurant's chef would grope and pinch his genitals or grab his backside when Pilkington walked to the kitchen or stock room. Despite his complaints to the restaurant's operating partner, he says the conduct didn't stop.

After one incident, Pilkington lost his composure and yelled at the chef, making a scene. Days later, he was fired - an action he claims was retaliation for his complaints. An EEOC lawsuit on behalf of Pilkington and three other current and former employees is pending.

"I think maybe it's just harder for males to come out and file a complaint because of how embarrassing it is," Pilkington said. "When I talk about it I get this nauseous feeling in my stomach."

The restaurant has denied the charges. In a statement, the company that owns Fleming's said the restaurant "has always been committed to providing a safe and healthy workplace free of harassment for all of its associates."

Many victims are hesitant to come forward because they are afraid of being considered unmanly or being derided by co-workers, said Mary Jo O'Neill, a regional attorney in the EEOC's Phoenix District office.

"All sexual harassment victims feel humiliated, lacking control and power," O'Neill said. "This has a different twist because everyone expects that they would be able to handle it and take care of it themselves."

Pilkington has since moved on to another job. While he is embarrassed by the publicity his case has received, he says it was the right thing to do. The EEOC lawsuit seeks damages for him and other workers alleging harassment, along with back pay and compensatory and punitive damages.

 

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Week of March 8, 2010

California Town to Charge for 911 Calls

As cities across the state of California suffer through soaring deficits and a state government offering little help, the City Council for Tracy, Calif. OK’d a contract this week with an Oakland-based company that will bill residents each time the city’s fire department responds to a non-fire call.

Back in June 2009, the city approved a plan to start charging residents for 911 calls and emergency services rendered. According to the Tracy Press:

Residents will pay $300 for every fire department response to a medical emergency. Non-residents can expect to pay $400. There is no set cost for a fire department visit to a car accident.

The city is working out an option so that households can pay an annual membership fee of $48, which would cover the cost of any emergency aid given during the course of a year, said David Bramell, who is acting as fire chief while Chief Chris Bosch is on administrative leave.

The Oakland company, ADPI-Intermedix, will receive about 15 percent of all of the city fees.

The City of Tracy Web site currently warns residents: “For emergencies please call 911″ – perhaps it should be updated to include a disclaimer about the bill they might rack up in the process. One City Council member told the Tracy Press that a constituent jokingly told her that if her husband were to have a heart attack, she’d be tempted to set the kitchen table on fire before calling for help.

Joking aside, though, this is the kind of unpopular decision that more California cities are likely going to have to make in order to keep their municipalities running. Late last month, for example, the Los Angeles Downtown News predicted that in order to close a looming $400 million budget shortfall, “the perennially untouchable realm of public safety can no longer be spared. Otherwise, the city may be headed toward bankruptcy.” Until the state’s legislators get their acts together and help close gaping budget deficits, residents are only going to face paying more and getting less.

 

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Why recession won't mean lost generation

 Laura Vanderkam
Dallas Morning News
07:01 PM CST on Friday, February 26, 2010

As economic doldrums drift into a fourth calendar year, pundits debate which groups have been hit hardest. Retirees? Homemakers who have returned to work? Blue-collar men caught in the "He-cession"? To this list, another group has been recently added: the young and expensively educated. In October, for example, BusinessWeek ran a much-discussed cover story called "The Lost Generation," claiming that workers in their 20s were "bright, eager, and unwanted." Around Labor Day, the AFL-CIO published a report announcing that young workers were experiencing a "lost decade."

Some commentators have even raised the specter of what happened in Japan during the long recession of the 1990s. Japanese companies stopped hiring, many twentysomethings subsisted on contract work or parental largesse, and by the time the economy picked up, these young adults lacked the résumés to be attractive for career-track gigs. In Europe, chronically high youth unemployment, even in good times, likewise creates social instability. Now, American twentysomethings wonder, could it happen here? Is the U.S. economy about to waste the productivity of a whole generation?

Every year, about 1.5 million people graduate with U.S. bachelor's degrees. In general, they enter the labor market and assume there will be enough desirable jobs to absorb them. But "in order for new entrants to find jobs, there have to be job openings," says Heidi Shierholz, an economist at the Economic Policy Institute, and there simply haven't been many. There were 2.4 million job openings advertised in August 2009, according to the Labor Department ˆ the lowest number since it started keeping track in 2000.

With 7.3 million jobs lost from December 2007 to October 2009, everyone "starts competing down the line," says Caroline Ceniza-Levine, owner of SixFigureStart, a career-counseling service. "If you have to look for people, why not look for the unsolicited, more experienced people who are coming in droves?" They take the entry-level jobs. That means people who would normally seek entry-level jobs compete just to find "survival jobs."

A survey from the National Association of Colleges and Employers found that only 19.7 percent of members of the class of 2009 who had applied for jobs had one by graduation season, compared with 26 percent for the class of 2008 and a still-not-stunning 51 percent for the class of 2007.

"No question, for many companies, college grad hiring is on hold," says John Challenger, CEO of outplacement firm Challenger, Gray and Christmas. (However, the unemployment rate for people with bachelor's degrees is still lower than for those with only a high school diploma ˆ in October, 4.7 percent versus 11.2 percent.)

The result is an economic inefficiency: a mismatch between jobs and potential, particularly among the young. People who graduate during a boom are more likely to land jobs that challenge them to the extent of their abilities. The early years of a career are when people invest most heavily in building their skills, so young people landing these jobs work hard to meet high expectations.

"For the rest of your career, you reap the benefits," says Lisa Kahn, an assistant professor of economics at the Yale School of Management.

Society benefits, too, as these workers later use their human capital to create innovations for employers or launch their own start-ups. Even if these fortunate graduates lose their jobs at some point, they've built skills and connections in their chosen fields attributes that make reemployment likely.

People who graduate during a recession, though, often have to take jobs that don't tap their potential. They develop the skills relevant to these lower-level jobs, rather than skills for jobs that would challenge them. Or they survive on help from family and don't learn much at all. If they switch to better jobs later, they'll be behind the learning curve.

Kahn's research has found that among American college-educated white men, every percentage-point rise in the national unemployment rate corresponds to a 6 to 7 percent reduction in initial earnings. This means that those who graduate when the unemployment rate is 10 percent will earn roughly 30 to 35 percent less in their first jobs than those who graduate when unemployment is 5 percent. While the unlucky graduates will close the gap over time, there will still be a 2.5 percent difference 15 years later.

Since college-educated white men are a high-earning crew, this ongoing gap translated into more than $100,000 in lost wages over the 17 years that Kahn studied. As she says, "It really does matter when you graduated": It is much worse to experience a recession in your first year out of college than in your fifth.

Modern Japan had always had a low unemployment rate. But when its economy soured in the early 1990s, commentators observed a spike in "NEETs"  a British acronym for people "not in employment, education or training." Most of the NEETs were 15 to 24 years old, and many assumed that these members of a pampered generation, raised in the well-to-do 1980s, simply didn't want to work. But perceptions changed as the recession dragged on. Newspapers began to carry tales of educated young people working on short contracts for subsistence wages.

A few years ago, Japanese corporations began hiring again, but they generally preferred to hire and train young people just graduating from school. This meant that the cohort that had graduated five to 10 years earlier was out of luck. In 2002, the majority of NEETs were 25 to 34 years old; that is, they were the same people out of work when the recession started. A "lost generation" was born. (The term was coined much earlier and with a very different meaning, when Gertrude Stein applied it to American
expatriates living in Paris after World War I.)

That recent American grads will follow this pattern is the worry of people like Kyle Griffin, a 2008 graduate of the College of Saint Rose in Albany, N.Y., who is applying for roughly five jobs per day and has been living for months on weekly $350 unemployment-benefits checks. Or Honora Talbott, a 2007 magna cum laude graduate of Amherst, who moved to New York City in November 2008 and recently beat out 500 other applicants for a part-time job walking dogs.

Few of the young people I spoke with for this article knew more than a handful of folks from the classes of 2008 or 2009 who had full-time jobs with benefits in their chosen fields. Scott Pierce, a 2008 Bates College grad who lives in San Francisco, describes a recent party for his school's alumni: "All the people from 2009 who were at the thing were from San Francisco and were living at home," he says ˆ that is, none of the guests had moved to the Bay Area for a job.

In the meantime, unemployed young people are creating a fascinating online literature of unemployment. Pierce blogs at a site called Tales from the Recently Laid Off, where he tries to "find humor in things that aren't funny." He's joined by the scribes at such colorfully named sites as Pink Slips Are the New Black, Stuff Unemployed People Like and the 405 Club (named for the maximum weekly New York unemployment check at the start of the recession). But such creativity is cold comfort for those who "have the misfortune of being born at a time that dumps them into the labor force at the exact worst time in 70 years," as Shierholz puts it.

Despite the recent spike in unemployment for educated young Americans and the prospect of somewhat lower wages over time, a true lost generation is unlikely here. One reason is that you can game when you enter the labor market by staying in school. This partly explains why people graduating during a recession narrow the wage gap with their luckier competitors: People who earn graduate degrees, which more people do during a recession, tend to earn more than those who don't.

A stronger reason to expect that today's college grads won't remain unemployed for long is the relative structural dynamism of American capitalism above all, the extraordinary flexibility of the U.S. labor market. The World Bank Group ranks the United States as tied for first place in the world in "employing workers" (that is, labor flexibility).

Not only do American companies have a lot of freedom to hire and fire; payroll taxes are relatively low by international standards (7.65 percent for Social Security and Medicare, plus federal and state unemployment-insurance premiums, which vary but seldom add more than a few percentage points to the total). And as the ranks of independent contractors grow, many companies don't face even those costs (or health-insurance costs) for their workers.

"Our system is so much more flexible," says Challenger. "People are like free agents here. There's a lot less safety in your career, but the real upside is that people can then move into these jobs when times are better." And when times are better, the American economy is quite good at creating jobs.

In Japan, by contrast which ranks 40th in the World Bank Group's "employing workers" standings lifetime tenure at one company remains the norm, and it's difficult to get a job except immediately after leaving school. The Japanese labor market is like a sold-out show in a theater: people arrive before the curtain rises, sit in their chairs and don't leave. Anyone coming late tends to lose out.

In France, which ranks 155th, many labor contracts severely limit hours and flexibility, high payroll taxes fund workers' benefits, and social policy makes layoffs very difficult. Germany, in 158th place, has many similar policies. If you wanted to extend the theater analogy, you might add that in both France and Germany, the seats are so expensive to build that there aren't enough of them for those who aren't impeccably credentialed.

An economy needs entrepreneurs to start companies and absorb new workers entering the labor market, and such risk-takers don't appear in a vacuum: Countries have business climates that are more or less amenable to them. The World Bank Group ranks these business climates, and also the ease of starting a business, in the 183 countries that it studied; the U.S. places fourth and eighth, respectively. Japan, with its cultural preference for large national corporations and lifetime tenure, ranks 91st in the ease of starting a business; Germany, at 84th, isn't much better.

A final reason for today's young people not to lose hope: The U.S. unemployment rate hit 10.8 percent in 1982. At the time, one might have thought that people born in 1960 would become a lost generation. But today's 50-year-olds don't appear lost in their careers.

Of course, if you have a good seat in that Japanese or European theater, you might not think it's a bad arrangement, and plenty of Americans want more Japanese-style stability or European-style labor protections. President Barack Obama's advisers appear to be among them. Among the ideas that they have floated are higher income-tax rates for high earners (which most entrepreneurs aspire to be) to fund new benefits, new payroll taxes for businesses that don't provide health insurance and proposals to make organizing easier.

In recent years, America has also seen campaigns to guarantee workers several weeks of paid vacation per year and to require even microenterprises to grant leave for caregiving and illnesses. And Congress declined to repeal a previously scheduled hike in the minimum wage in July.

Some of these benefits are great if you have a job, and some may be socially desirable for other reasons, but all will have an inevitable economic result. Anything that makes it more expensive to employ people, or raises the cost of getting rid of them, or makes entrepreneurship less rewarding, will raise structural unemployment. And the damage will likely be most severe among those coming late to the theater young workers.

Take the French laws that make it difficult to downsize workers. "When it's not employment for life, if an employer feels like they can let a worker go in an extreme situation, [the employer] is more likely to take a risk on a young worker," says Kahn, the Yale economist.

Since he announced his candidacy, Obama has been a favorite among American young people. He won 66 percent of the 18- to 29-year-old vote. He may have won other demographics because devoted young volunteers lobbied their parents, cajoled people to the polls and spread the word through Facebook. It would be ironic if his policies wound up damaging the employment prospects of his biggest fans.   

 

 

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CITY TEXTING: Now an open record

Messages shed light on 2009 personnel moves and more by Harlingen's elected officials
February 26, 2010 4:00 AM
By GABRIEL SALDAÑA/Valley Morning Star

HARLINGEN — Text messages from mid-2009 show behind-the-scenes maneuvering by city commissioners on a range of issues including board appointments, annexation and the firing of former City Attorney Brendan Hall.

Transcripts show text messages by four of five city commissioners, various city board members and Mayor Chris Boswell.

The Valley Morning Star obtained the messages through an open records request submitted to the city secretary on Nov.  16. The request followed a Texas Attorney General’s opinion in a case involving the city of Lubbock. The attorney general found that Lubbock officials’ city-related messages are public information, even if the messages are sent from the officials’ personal cellular phones.

The Lubbock ruling, reported in September by the Lubbock Avalanche Journal, set the precedent for the disclosure of public officials’ business-related text messages.

The Harlingen messages include a July 13 text exchange between District 3 Commissioner Kori Marra and District 5 Commissioner Joey Treviño, in which they arranged a meeting at Marra’s office to discuss “what we are going to do about Brendan,” an apparent reference to a City Commission agenda item to discuss the possible dismissal of then-City Attorney Brendan Hall.

The July 15 agenda included an executive session to discuss Hall’s employment.

Treviño, in July 14 messages, supports disannexation of land on the city’s west side. Marra expresses her concern that disannexation would raise taxes for the rest of the city.

Treviño, in reference to the process by which the annexed areas were absorbed into the city, texts to Marra that “the statute was violated.”

When contacted Thursday, Marra said that none of the officials violated the Texas Open Meetings Act by exchanging text messages about city business.

“We were all pretty careful with whatever texting was going on … we’re allowed to discuss city business one-on-one,” she said.

The act says that a quorum cannot hold an unposted meeting to discuss city business, she said. In Harlingen three commissioners must be present to constitute a quorum.

“We were notified that this could actually happen,” Marra said about the text message disclosure.

Treviño did not return phone calls or text messages for a comment on Thursday.

The 20-page transcript of Treviño’s and Marra’s messages include discussions of agenda items, city board members’ attitudes and removals and re-appointments to city boards.

Among the people mentioned in the messages are former WaterWorks general manager Cloice Whitley, local businessman and former city commission candidate Humberto Zamora, former mayoral candidate Kenneth Benton, local businessman Dial Dunkin and City Secretary Sylvia Treviño.

Text messages about city business were also sent by Commissioners Robert Leftwich and Larry Galbreath, WaterWorks board member Kevin Campbell, Valley International Airport board member Rick Ledesma, former city manager Craig Lonon, Community Improvement Board member Gina Monreal and mayoral candidate Fred Rendon.

The text messages were compiled directly from the senders’ phones by attorneys Denton, Navarro, Rocha & Bernal P.C., City Attorney Roxann Pais Cotroneo said. She said that most of the messages came from Marra, who stores them in a database.

Other messages were deleted, Cotroneo said, explaining why nearly every transcribed conversation takes place between Marra and another official.

Marra also said Thursday that she was suspicious that Treviño and Leftwich could not produce a single text message they exchanged, as the men “text other people all the time.”

Marra, apparently referring to Leftwich, says in an Oct. 19 message to Ledesma, “I have serious issues with Robert,” to which Ledesma replies, “I noticed!”

The city attorney said that no technology exists to retrieve deleted messages from cell phone companies, which record only the date and time that a message was sent, but not the message content.

FYI
Read the complete transcripts of text messages released by City Hall at
valleystar.com. Readers can go directly to http://www.valleystarnews.com/textmsgs.pdf

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Employer Monitoring of Electronic Communications

Madeline S. Baio
The Legal Intelligencer

The issue of whether employers may review or monitor private e-mails, web histories and other electronic communications of employees on company-issued computers, cell phones, pagers, and the like has been the subject of much debate. This article will review several aspects of this issue and explore the responsibility of management to prevent misuse of company resources; the privacy concerns of employees whose communications may be monitored; and what relevance it all has to the day-to-day operations of a business and compliance with state and federal laws.

THE NEED FOR ELECTRONIC USAGE POLICIES

The prevalence of electronics in the workplace has increased efficiency, productivity, and communication like few other advances in society. At the same time, however, use of technology in the workplace has heightened the concern of many employers regarding trade secret violations and the disclosure of other types of confidential information. It has also expanded the methods by which sexual harassment of co-workers, subordinates, and others may occur, and has provided an easy vehicle for workers to spend countless nonproductive hours on company time.

For these and other reasons, employers have had to grapple with how best to monitor and prevent such costly behavior.

While computer and other electronic monitoring seems justified from a business perspective, it has in turn given rise to employee privacy concerns. At the heart of these concerns is whether employees have a reasonable expectation of privacy when they utilize company-supplied electronic devices.

In analyzing this issue, most courts have looked at whether a company maintains a written policy on electronic usage. Many courts, including those in the Eastern District of Pennsylvania, have found that there is no reasonable expectation of privacy on the part of employees where an employer has articulated a policy, either through company announcements, employee handbook provisions or periodic policy updates, that the electronic usage of employees will be inspected or monitored.

On the other hand, where no such policy has been articulated or where a policy has been articulated but not enforced, courts have often found that a reasonable expectation of privacy does exist.

Clearly then, it is advisable for employers to implement, maintain, and enforce specific written policies that limit the use of company-issued systems and equipment and that advise employees that their use of such company-issued systems and equipment will be subject to unannounced inspection and monitoring. Periodic reminders of these policies should be distributed, and a document signed by each employee at the time of hire that acknowledges that he or she has reviewed, understands, and agrees to be bound by the policies is also advisable.

Electronic usage policies should clearly state:

. Access and pass codes must be known to the company at all times. Files may not be password protected without the specific authorization of management.

. Backup copies of e-mail and voicemail will be maintained and can be referenced later for business and legal reasons.

. All company-provided systems including e-mail, voicemail, and computer network systems should be used only for company business and not for personal purposes.

. The company's electronic systems and equipment may never be used in a manner that is disruptive or offensive to others, including, but not limited to, the transmission of sexual content, messages, cartoons, ethnic or racial slurs, or anything that may be construed as harassment or disparagement of others either individually or as a group or class of persons.

. There is no right to privacy concerning anything stored, received or transmitted on company-provided electronic devices or systems including, without limitation, web history, personal e-mail accounts, text messages, voicemail messages, blogs, and social network site communications.

. Access to or use of company-issued electronic devices should never be given to those who are not actively employed by the company. Individual employee access codes and pass codes should not be shared with co-workers unless specifically authorized in writing by management.

. Violation of the company's electronic usage policies will result in disciplinary action up to and including discharge.

Once a proper electronic usage policy is in place, employers should be fairly well protected from any privacy claims relating to management's inspection or monitoring of company systems or equipment.

POLICIES IN LITIGATION

The ability to inspect and monitor employee communications and activity can be important in a variety of situations. As previously mentioned, it has the potential to detect improper dissemination of confidential or proprietary information and can deter harassing or intimidating communications.

Most recently, in a sexual harassment and retaliatory discharge case that previously received some media attention, Judge Gene Pratter of the U.S. District Court for the Eastern District of Pennsylvania denied the plaintiff's motion in limine seeking to preclude e-mails found on her company-issued computer that contained sexual content. In that case, Seybert v. The International Group Inc., Pratter held that the e-mails in question would be "inexorably probative" of the issue as to whether plaintiff was subjectively offended by her supervisor's statement to her at a company dinner that "it's really good if you go down deep, into the chocolate, with your berry." Pratter also found that the e-mails would be relevant to plaintiff's emotional distress claim.

In Seybert, Pratter reasoned as follows: "Here, the e-mails with sexual content involve the same general type of humor as Mr. Marchand's comment at the Recognition Dinner -- a humor rooted in sexual innuendo and supposed euphemisms. For instance, Mr. Marchand's alleged comment about going 'down deep into the chocolate [dessert] with your berry' presumably could be likened to Exhibit 61, which contains a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, 'Just Roll Me Over Darlin ... 'cause I'm Laying On Yer Present.' In both cases, creative imagery and base sexual wordplay are being used to construct metaphors in an apparent attempt to titillate, amuse, entertain, instruct, or simply 'gross out' (in the phrase of some generations) others."

WAIVER OF PRIVILEGED COMMUNICATIONS

Employers and employees alike should also be aware that the privileged nature of certain communications may be waived if sent or received on company-issued electronic devices if there is a policy in place that specifically disclaims any reasonable expectation of privacy. Those communications include, but are not necessarily limited to, attorney-client communications.

Generally speaking, if an employer has made it clear through a written and publicized policy that no reasonable expectation of privacy exists; that this policy applies to personal e-mail accounts on company computers and hand-held devices as well as personal computers and devices used to access company systems; and that the policy is uniformly enforced, then the employee will likely be deemed to have waived the attorney-client privilege in any communications sent or received from his or her attorney.

THE NEED FOR UNIFORM ENFORCEMENT

Finally, privacy issues reach constitutional proportions when the employer is the government. In City of Ontario v. Quon, the U.S. Supreme Court agreed late last year to hear a texting privacy case brought by police officers against the Ontario, California Police Department. In Quon, the police department had a written "Computer Usage, Internet and E-mail Policy" that stated that use of computers for personal reasons was a violation of department policy and that employees had "no expectation of privacy or confidentiality when using these resources." Quon had signed off on the policy and attended a meeting in which it was explained that the policy applied to pagers.

However, the district court found, and the 9th U.S. Circuit Court of Appeals agreed, that the written policy had been orally modified by the plaintiff's lieutenant, who made it clear to staff and to the plaintiff in particular that he would not audit plaintiff's pager as long as he agreed to pay for any overage charges on his account. Quon agreed and paid for the overage charges three or four times without anyone auditing his text messages. Nevertheless, without warning, his text messages were subsequently audited by the department.

Under these circumstances, the 9th Circuit held that Quon had a reasonable expectation of privacy in the text messages on his pager and that his constitutional rights had been violated. The city has appealed, and it is possible that the Supreme Court will hear oral argument in the spring.

While the Quon case concerns only the issue of text messaging in government employment, the Supreme Court's decision is expected to give some insight as to its position on privacy interests in an electronic age more generally. At the very least, employers should take the 9th Circuit's position on the matter seriously and be certain that carefully written electronic usage policies are not undermined by individual managers striking more lenient deals with individual groups of employees.

Madeline S. Baio is the chairwoman of the employment law department of Rawle & Henderson. For more than 20 years, she has counseled and defended clients in connection with employment-related claims and lawsuits. She has undertaken workplace investigations and advised clients with regard to the drafting and implementation of employee policies and procedures.

 

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EEOC Hit With $4.5 Million in Fees After Dismissal of Sexual Harassment Suit

Marcia Coyle
The National Law Journal
February 17, 2010

A federal judge in Iowa has ordered the Equal Employment Opportunity Commission to pay $4.56 million in attorney fees and expenses to a Cedar Rapids trucking business after dismissing the agency's sexual harassment lawsuit.

John Mathias, chair of Jenner & Block's insurance litigation and counseling practice in Chicago, and Kevin Visser of Cedar Rapids' Simmons Perrine Moyer Bergman, led a team of attorneys defending CRST Van Expedited in the lawsuit, which was filed in 2007.


The fee award against the EEOC, while not unprecedented, is unusual, according to Mathias, and may be among the largest imposed by a federal court.

The EEOC did not return a request for comment, but the agency has filed a notice of appeal of the lawsuit's dismissal with the 8th U.S. Circuit Court of Appeals.

The agency had alleged in its suit that CRST's lead drivers or team drivers had subjected approximately 270 female drivers to sexual harassment and a sexually hostile work environment and that the company had failed to correct and protect them.

In a series of rulings last year, Chief Judge Linda Reade of the Northern District of Iowa dismissed all of the agency's claims. In a key ruling last April, she granted summary judgment on the claim that CRST tolerated a "pattern and practice" of sexual harassment against female drivers.

"The EEOC has presented the court with anecdotal evidence to show that some members of CRST's management occasionally violated CRST's anti-sexual harassment policy by failing to respond appropriately to sexual harassment in the workplace," wrote the judge in April. "However, the EEOC has not compiled the failings of CRST's managers in any meaningful way to show that CRST has a pattern or practice of tolerating sexual harassment in its workplace."

That was a "big finding," said Mathias. "Once the pattern and practice allegation was gone, you had 200 or so claims with nothing in common, no unifying characteristic."

The EEOC's argument, said Reade, "boils down to little more than bald assertions." The EEOC's litigation strategy, she added, "was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial."

In an order last August, Reade dismissed the remaining claims of 67 women after finding the agency had "wholly abandoned its statutory duties" towards them by not conducting any investigation of their allegations.

In the fee application, Jenner said its attorneys and staff billed a total of 18,005.75 hours on the case and sought $7,121,569.25 at rates ranging from $151 to $825 per hour for this work. Simmons attorneys and support staff billed a total of 2,507.66 hours at rates ranging from $95 to $295 per hour and sought a total of $502,977.02 for their work.

Reade on Feb. 9 said several factors warranted a large award: The company's counsel successfully obtained a dismissal of the entire case; the case involved hundreds of allegedly aggrieved individuals and there was potentially massive liability to CRST.

She awarded the amount requested by Simmons for its work, but reduced Jenner's request to $3,501,394.63 after comparing the firm's rates to market rates prevailing in the local community. She also awarded reasonable out-of-pocket expenses totaling $463,071.25. In an earlier order, the court had granted CRST $92, 842.21 in costs.

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Week of March 1, 2010

City, police embrace social media to reach community

by Audrie Palmer
Midland Reporter-Telegram
Published: Saturday, February 20, 2010 11:46 PM CST

As new social media and online outlets become available, the city of Midland and Midland Police Department are working to reach more local residents through technology.

Last year, the city launched its online media center and set up accounts with Nixle, Twitter and Facebook to reach the public faster with announcements and information.

"It's just another avenue to share the information and to hopefully reach a different generation of the public too," said Tina Jauz, the city's public information officer.

Now the city has about 933 fans on its Facebook page and some YouTube videos have received more than 3,000 views, which have helped detectives solve several recent theft and robbery cases.

"When we first started it, we didn't know how much attention it would get. But we're pleased with how many fans we have at this point and we just hope it keeps growing," she said.

By using Nixle and Twitter, the city is able to share information readily available to the public from press releases in ways that citizens can receive either via their e-mail or cell phones.

If an event is happening or police are looking for a suspect, the city and police department are also able to send that information out quickly through Twitter and Facebook, Jauz said.

And by setting up a Flickr account, the city hoped to find photographs from local residents of people having fun in Midland.

"We were just excited because we knew our citizens had pictures they would like to share with us," she said. "Some of these are two-way avenues for communication."

Midland is just one of many cities across the state turning more to technology and online social media outlets to try to embrace those in their communities.

The multimedia developer for the city of Midland also recently hosted a hands-on event to show other communities how to access a Facebook account and help them reach their residents through one.

And officials are working on a new online tool to help residents monitor crime in their neighborhoods; Jauz said the new online map system will be more user-friendly.

One of the ways the MPD utilizes the Internet is through YouTube. It has posted several crime scene videos to gather information about incidents and help catch the suspects and solve the cases.

When the department uploaded its first video to the Web site in October 2008, MPD Lt. Tony Dickie said the burglary video received over 700 views and investigators were able to solve the crime within a few months with the arrest of two juveniles involved.


"There's a large amount of people now viewing the surveillance videos, and it's been extremely valuable," he said. "Basically, we recognized the need to broaden the manner in which we share suspect information with the public and this channel allows the public to view it."

"It's give us a lot more eyes in an effort to identify these suspects."

The idea to use YouTube came from observing other agencies that had begun posting crime scene surveillance video online, Dickie said.

Since the MPD has started posting videos, officers said it's been a tremendous help in their investigations.

"Anytime you can place crime surveillance videos that have suspects within the videos out to the public, the likelihood of someone recognizing someone -- even those that try to conceal their identity and hide their face -- is still high," Dickie said.

"We were hoping we would have success based on that."

 

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E-Verify system to check worker status inaccurate, misses half of illegal workers

El Paso Times
SUZANNE GAMBOA / Associated Press Writer
Posted: 02/25/2010 10:38:48 PM MST

WASHINGTON -- The system Congress and the Obama administration want U.S. employers to use to help curb illegal immigration is failing to catch more than half of the unauthorized workers it checks, a research company has found.

The online tool E-Verify, now used voluntarily by employers, wrongly clears illegal workers about 54 percent of the time, according to Westat, a research company that evaluated the system for the Homeland Security Department. E-Verify missed so many illegal workers mainly because it can't detect identity fraud, Westat said.

"Clearly it means it's not doing its No. 1 job well enough," said Marc Rosenblum, a researcher at the Migration Policy Institute, a nonpartisan Washington think tank.

E-Verify allows employers to run a worker's information against Department of Homeland Security and Social Security databases to check whether the person is permitted to work in the U.S. The Obama administration has made cracking down on employers who hire people here illegally a central part of its immigration enforcement policy, and there are expectations that some Republicans in Congress will try in coming weeks to make E-Verify mandatory.

Much of the criticism of E-Verify has focused on whether U.S. citizens and legal immigrants with permission to work were falsely flagged as illegal workers. Immigration officials have been taking steps to improve such inaccuracies. Westat reported that 93 percent of the cases checked were legal workers who were accurately identified on first try. Another .7 percent were legal workers who initially were rejected.

Homeland Security Secretary Janet Napolitano, testifying in a House hearing on her agency's proposed budget Thursday, said she doubts the 54 percent inaccuracy rate for illegal workers. She said things are being added to the system to root out identity fraud.

"E-Verify is absolutely where we are going in terms of incentivizing employers and making sure we are using a legal work force," Napolitano said.

Sen. Chuck Schumer, who is writing the Democrats' immigration bill and has fought expanding E-Verify because of its flaws, said Wednesday that the fact that E-Verify was inaccurate so often shows that it is not an adequate tool.

"This is a wake-up call to anyone who thinks E-Verify is an effective remedy to stop the hiring of illegal immigrants," Schumer said.

A worker verification process like E-Verify is considered essential for any immigration overhaul proposal to have a chance of approval in Congress.

Westat's report, completed in December using data from 2008, was quietly posted on Homeland Security's Web site Jan. 28 along with a summary that pointed out E-Verify is accurate "almost half of the time."

"While not perfect, it is important to note that E-Verify is much more effective" than the paper forms used by most employers, the summary said.

Rosenblum, who has studied E-Verify, said Westat's evaluation shows it doesn't make sense to substantially expand and invest in E-Verify without fixing the identity theft problem.

Bill Wright, a spokesman for U.S. Citizenship and Immigration Services, said the agency has created an anti-immigrant identity fraud unit in Buffalo, N.Y., to address the issue.

The agency, part of the Homeland Security Department, is developing a way for people to screen themselves through E-Verify so they can show potential employers they can work legally.

About 184,000 of the 7 million to 8 million U.S. employers are using E-Verify, according to the Homeland Security Department.

Congress gave DHS about $100 million to spend on E-Verify in its 2010 budget.

 

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Week of February 22, 2010

Many Jobs Gone Forever, Economists Say
Increased Automation, Relocations Overseas Mean Workers Will Find Different Employment Mix When Recession Ends

Wall Street Journal
By PHIL IZZO

About a quarter of the 8.4 million jobs eliminated since the recession began won't be coming back and will ultimately need to be replaced by other types of work in growing industries, according to economists in the latest Wall Street Journal forecasting survey.

While the job market is constantly shifting as some sectors fade and others expand, this recession threw that process into overdrive.

Thousands of workers lost jobs as companies automated more tasks or moved whole assembly lines to places like China. As growth returns, so will job creation-just with a different emphasis in the mix of jobs being created.

Economists in the survey are predicting a slow upswing for the economy as a whole. Respondents on average expect economic growth to settle at about 3% in 2010, off sharply from the powerful 5.7% seasonally adjusted annual growth rate in the fourth quarter.

This is why job creation has become such a worrisome issue: Based on that growth projection, over the next year economists estimate the U.S. will add about 133,000 jobs a month. That sounds good and it's certainly better than more job losses. But with about 100,000 new jobs a month needed just to soak up new entrants to the work force, that pace of job creation will only slowly reduce the high unemployment rate.

That's why the economists expect the unemployment rate to only fall to 9.4% by the end of the year-down from 9.7% in January. They say job growth needs to average more than 200,000 per month for the U.S. to see a strong recovery in jobs.

The White House released its economic forecast Thursday, projecting payrolls will increase by an average of just 95,000 a month this year with the unemployment rate averaging 10%. The Council of Economic Advisors expects GDP growth to be about 3% in 2010, in line with the surveyed economists.

It isn't just weak growth that's damping job growth. "Companies, in the name of making money, substitute against labor through outsourcing or technology," said Allen Sinai of Decision Economics. Wages and benefits make workers "so expensive that who wants to hire them? As a result, the displaced workers won't be rehired unless we have double the growth rate we're expecting."

On average, the 55 respondents, not all of whom answered every question, said three-quarters of the jobs losses during the recession are cyclical, meaning the positions will eventually return when demand picks up. For example, the manufacturing industry has shed 2.2 million jobs since 2007, as consumers and businesses cut spending sharply amid the credit crisis. When demand stabilizes, factories need to bring some of those workers back.  Indeed, the sector added jobs in January for the first time in nearly three years.

But some companies have used the recession to find ways to do more with less. "There's a certain Darwinian angle to recession," said economist Sean Snaith of the University of Central Florida in Orlando, Fla. "Firms that survive are stronger for having the experience. They tighten down and look for ways to cut waste."

The challenges facing the economy-and the government's response to them-translated into low marks for President Barack Obama and Treasury Secretary Timothy Geithner. The economists gave the president an average grade of 57 out of 100, while Mr. Geithner scored an average of 60. Just 10 economists gave both men marks in the A or B range above 80. Despite the low marks, 29 of the economists expect Mr. Geithner will still be Treasury secretary at the end of the year.

J.P. Morgan Chase economist Bruce Kasman said, "You need to change incentives for hiring in a permanent way, but that is hard to do amid deficits."

However, Federal Reserve Chairman Ben Bernanke fares significantly better, with an average grade of 78, and 33 economists giving him an A or B. "The Fed chairman misread the economy and risks initially but eventually acted aggressively and successfully," said Jim O'Sullivan of MF Global. And despite a bruising confirmation battle earlier this month, most economists said the central bank's independence was only slightly undermined by the process.

About the Survey
The Wall Street Journal surveys a group of 56 economists throughout the year. Broad surveys on more than 10 major economic indicators are conducted every month. Once a year, economists are ranked on how well their forecasts have fared. For prior installments of the surveys, see: WSJ.com/Economist.

 

 

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Attorney General warns of the dangers of 'sexting'

Eastex Advocate
Updated: 02.03.10

The Texas Attorney General's office warns that teenage Texans' use of text messaging and camera-equipped cell phones has led to an alarming new practice: sexting.

Sexting is the practice of teenagers sending sexually explicit messages or images electronically, primarily between mobile phones.

Technological improvements that are now standard on many mobile phones allow teenagers to easily distribute photographs and videos to boyfriends, girlfriends and friends.

Some young Texans are even sexting to strangers they have only met online.  The National Campaign to Prevent Teen and Unplanned Pregnancy surveyed 1,300 teenagers about sexting and found troubling results.

Seventy-one percent of teen girls and 67 percent of teen boys who have sent or posted sexually suggestive content say they have sent it to a boyfriend or girlfriend and 15 percent of teens who have sent or posted nude or semi-nude images of themselves say they have done so to someone they only knew online.

Forty-four percent of both teen girls and teen boys say it is common for sexually suggestive text messages to get shared with people other than the intended recipient.

The social danger for teenagers is that the message sender has no control of its distribution.

Nearly 20 percent of sexting recipients have passed the image to someone else who the sender may or may not know.

Suggestive photographs easily can be downloaded to a computer, posted on public Web sites or printed and distributed.

Unintentional circulation of inappropriate images can lead to suspensions from school or athletic participation and cause embarrassment.

Compromising photos can hinder teens' attempts to get into college, receive scholarships or gain employment.

More importantly, sexting can lead law enforcement to confiscate communication devices and cause other serious legal problems.

One in five teens surveyed say they have sexted despite the fact that most of them knew it was a crime.

The owner of a computer or cell phone containing pictures of nude or semi-nude minors can be investigated and prosecuted on felony child pornography charges.

Teenagers in possession of sexually suggestive images of classmates or companions under 18 could face up to 10 years in prison.

Clearly, this dangerous technological trend can haunt children for years, and it is impacting schools and communities statewide.

Of course, investigators and prosecutors consider the circumstances of each case before deciding whether - and which - charges charges may apply.

By the time law enforcement has gotten involved, however, someone has already gotten hurt. Education and active parenting present the best way to ensure children avoid this dangerous activity.

Parents must have frank conversations with their children about the potential for embarrassment and the legal ramifications of sexting. If teens do not want a photo or text message to fall into the wrong hands - including strangers, potential employers, teachers or college admission officers - they should not send it. A lack of privacy can put them at risk.

Teens, parents, teachers and law enforcement authorities must keep an open line of communication to combat sexting.

Parents, law enforcement officers and others who have questions or want more information about protecting children should visit the Texas Attorney General's web site, www.texasattorneygeneral.gov.

 

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Facing Budget Gap, Colorado City Shuts Off Lights
by Jeff Brady
February 14, 2010  

Like many cities across the nation, Colorado Springs, Colo., is trying to close a big budget gap. The town is shutting off lights and slashing budgets for parks, police and firefighters, but that hasn't stopped voters from tightening the purse strings even more.

Most cities depend on sales taxes for revenue, and Americans just aren't spending like they were a few years back. Across the country, cities will have to fill budget gaps totaling up to $83 billion through 2012, according to the National League of Cities.

As a cost-saving measure, Colorado Springs is turning off streetlights. Flipping the switch on about 1/3 of the city's 24,512 streetlights is expected to save $1.245 million in electricity. But that's just a down payment on a $28 million budget gap for 2010.

Perhaps the most noticeable change for Colorado Springs' 400,000 residents will be in parks, where budgets have been slashed by nearly 75 percent.

"We've taken all the trash cans out. We're not going to be doing any litter collections in the parks," says Larry Small, vice mayor for Colorado Springs. "We're hoping the citizens will pack it out themselves."

All the restrooms have been closed. There'll be very little watering, and crews will mow just once a month instead of weekly.

The city even trimmed its police and fire budgets and is auctioning three of its police helicopters on the Internet. Still, that's not enough.

"We did have a transit system," Small says. "That's gone almost completely now."

The city sold nine buses and will use the proceeds to pay operating costs this year. On Jan. 1, 2010, buses stopped running on evenings and weekends.

Resident Don Miller is leaving. "My lease is up in November, so I'm going to get away from here," he says. "I don't drive — I ride the bus, and there's no bus service on Saturdays and Sundays."

In this politically conservative city, most people on the street say the city just needs to spend its money more wisely.

"Seems like the city ... is overpaying its workers," Shirlee Kelley says. "I think the salaries have to come down to be more even with what the private sector is paying."

Small argues that wages are comparable to other municipalities. But that doesn't satisfy critics, who don't like the cuts the city is choosing to make.

"The government is using its typical tactic of making highly publicized cuts in order to make people feel the pain to some extent," says Douglas Bruce, a small government activist and author of Colorado's Taxpayer Bill of Rights.

If that's truly the strategy, it's not working. In November, Colorado Springs voters approved an initiative sponsored by Bruce that keeps the city from raising property taxes — whittling away city finances even more.

Colorado Springs is now considering wholesale changes to the way it operates. City leaders are thinking about selling the local utilities and a hospital. That could raise an estimated $1.3 billion. Small says the money could be put in a trust for the city and provide $50 million a year in much-needed revenue to pay for basic services.

 

 

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Week of February 15, 2010

Fierce Leadership Executive Book Briefing Notes

 

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Public-sector unions bleed taxpayers

By: Michael Barone
Senior Political Analyst
February 7, 2010

Growing up in Michigan in the heyday of the United Auto Workers, I long assumed that labor unions were part of the natural order of things.

That's no longer clear. Last month the Labor Department reported that private-sector unions lost 834,000 members last year and now represent only 7.2 percent of private-sector employees. That's down from the all-time peak of 36 percent in 1953 and '54.

But union membership is still growing in the public sector. Last year 37.4 percent of public-sector employees were union members. That percentage was down near zero in the 1950s. For the first time in history, a majority of union members are government employees.

In my view, the outlook for both private- and public-sector unionism is problematic.

Private-sector unionism is adversarial. Economic studies show that such unions do extract premium wages and benefits from employers. But that puts employers at a competitive disadvantage. Back in the 1950s, the Big Three auto companies dominated the industry and were at the top of the Fortune 500. Last year General Motors and Chrysler went bankrupt and are now owned by the government and the UAW. Ford only barely escaped.

Adversarial unionism tends to produce rigid work rules that retard adaptation and innovation. We have had a three-decade experiment pitting UAW work rules against the flexible management of Japanese- and European-owned nonunion auto firms.

The results are in. Yes, clueless management at the Detroit firms for years ignored problems with product quality and made boneheaded investment mistakes. But adversarial unionism made it much, much harder for Detroit to produce high-quality vehicles than it was for nonunionized companies.

As economist Barry Hirsch points out, nonunion manufacturing employment rose from 12 million to 14 million between 1973 and 2006. In those years, union manufacturing employment dropped from 8 million to 2 million. "Unionism," Hirsch writes, "is a poor fit in a dynamic, competitive economy."

Moreover, federal laws passed since the 1950s now protect workers from racial and sex discrimination, safety hazards and pension failure. They don't need unions to do this anymore.

Public-sector unionism is a very different animal from private-sector unionism. It is not adversarial but collusive. Public-sector unions strive to elect their management, which in turn can extract money from taxpayers to increase wages and benefits -- and can promise pensions that future taxpayers will have to fund.

The results are plain to see. States such as New York, New Jersey and California, where public-sector unions are strong, now face enormous budget deficits and pension liabilities. In such states, the public sector has become a parasite sucking the life out of the private-sector economy. Not surprisingly, Americans have been steadily migrating out of such states and into states like Texas, where public-sector unions are weak and taxes are much lower.

Barack Obama is probably the most union-friendly president since Lyndon Johnson. He has obviously been unable to stop the decline of private-sector unionism. But he is doing his best to increase the power -- and dues income -- of public-sector unions.

One-third of last year's $787 billion stimulus package was aid to state and local governments -- an obvious attempt to bolster public-sector unions. And a successful one: While the private sector has lost 7 million jobs, the number of public-sector jobs has risen. The number of federal government jobs has been increasing by 10,000 a month, and the percentage of federal employees earning over $100,000 has jumped to 19 percent during therecession.

Obama and his party are acting in collusion with unions that contributed something like $400,000,000 to Democrats in the 2008 campaign cycle. Public-sector unionism tends to be a self-perpetuating machine that extracts money from taxpayers and then puts it on a conveyor belt to the Democratic party.

But it may not turn out to be a perpetual motion machine. Public-sector employees are still heavily outnumbered by those who depend on the private sector for their livelihoods. The next Congress may not be as willing as this one has been to bail out state governments dominated by public-sector unions. Voters may bridle at the higher taxes needed to pay for $100,000-plus pensions for public employees who retire in their 50s. Or they may move, as so many have already done, to states like Texas.

Obama's Democrats have used the financial crisis to expand the public sector and the public-sector unions. But voters seem to be saying, "Enough."
 

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Keller resident must pay former mayor $50,000 and apologize in ad as part of libel settlement

ALEX BRANCH
abranch@star-telegram.com

As part of a settlement in a libel case, a Keller resident must pay former Mayor Julie Tandy $50,000 and pay for a newspaper advertisement retracting statements in an earlier ad that accused her of wrongdoing, court papers state.

Jack Brock wrote in an ad he placed in the Keller Citizen in May 2007 that Tandy acted unlawfully during the city's proposed acquisition of a drainage easement on Brock's land.

The ad ran eight days before an election in which Tandy was defeated.

The settlement was an unusual instance of a public official receiving damages in a defamation case, said Tandy's lawyer Shauna Wright of Kelly, Hart and Hallman in Fort Worth.

"This is an affirmation of [Tandy's] strong case and the gravity of Mr. Brock's wrongdoing," Wright said. "There is no constitutional right to tell lies about the mayor during an election."

The Supreme Court's 1964 ruling in The New York Times Co. v. Sullivan set the standard of proof of defamation higher for public officials than for private citizens.

An official must prove not only that the statement in question was false but also that the person making it either knew it was false or acted with reckless disregard for the truth -- a standard known as actual malice, said Jason Gillmer, a professor at Texas Wesleyan School of Law.

"It is a much higher standard and the reason that damages for public officials are rare," he said.

Reached by phone Wednesday afternoon, Brock said he settled the case on the advice of attorneys and declined to comment further.

According to court papers, Brock had been involved in a legal dispute with the city over a condemnation proceeding to acquire a drainage easement on his land, and as a result he was a vocal critic of Tandy's while she was mayor.

The ad, which was published May 4, 2007, suggested that Tandy had improperly backdated documents with her signature regarding a plat of land and that she had voted to "steal" Brock's property.

The ad also stated that Brock had asked his attorneys to contact authorities to initiate criminal charges against Tandy for fraud, according to court documents.

As part of the settlement, Brock is required to pay $900 to publish a retraction in the Wednesday edition of the Keller Citizen, Wright said. The retraction, which was included in case filings, acknowledges that Tandy did not backdate her signature.

It also retracts Brock's accusation that Tandy voted to "steal" his property (she did not vote on the issue at all) and states that he does not believe she committed any criminal offenses in her capacity as mayor.

"I acknowledge that Ms. Tandy ... acted with the honesty and integrity people expect of their public officials," it states.

Tandy was elected mayor in 2003 and served two terms.

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Brownwood settles sexual assault lawsuit for $300,000

By Celinda Emison
Posted February 10, 2010 at 12:55 p.m.
Abilene Reporter News

A lawsuit was settled Tuesday between the parents of a sexual assault victim and the city of Brownwood, Police Chief Virgil Cowin and the Texas Trails Council of the Boy Scouts of America.

The family agreed to a settlement of $300,000, City Manager Bobby Rountree said.

In the lawsuit the parents of the victim claimed that none of the entities did enough to protect their daughter, a then 15-year-old member of the Police Explorers Post 1150, from Vince Ariaz, a former Brownwood police sergeant who is serving prison time for two counts of sexual assault of a child.

"The city is pleased to settle this case and obtain closure on a tragic set of events that were perpetrated by the criminal acts of a former employee of the city," said Brownwood Mayor Bert Massey. "The city is deeply sorry for what happened to the young lady who was the victim in this case, and our hearts will continue to go out to her with the hope that she can put this entire incident behind her and live a long, happy life."

The insurance carrier is Liberty Mutual and Texas Municipal League. City Attorney Pat Chesser and Rountree went through the mediation process and finalized the settlement in Austin Tuesday. In exchange for the settlement amount, the family has released all of the parties from any further liability in the case.

The lawsuit, filed in November 2008, followed the conviction Ariaz, currently serving three concurrent 20-year prison terms after pleading guilty in May 2008 to two counts of sexual assault of a child, involving the female victim.

The Police Explorers Post has since been dissolved.

Ariaz originally was indicted on 27 counts of sexual assault involving the 15-year-old victim and for one count involving another female member, who was 15 when she reported an incident in 2004.

In May, as part of a plea bargain, Ariaz pleaded no contest to an indecency with a child charge involving the 2004 incident.

Ariaz is incarcerated at the Jordan Unit of the Texas Department of Criminal Justice in Pampa.

 

 

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Week of February 8, 2010

Letter from a Birmingham Jail

From Martin Luther King

 

April 16, 1963
MY DEAR FELLOW CLERGYMEN:

While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statements in what I hope will be patient and reasonable terms.

I think I should indicate why I am here In Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty-five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct-action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco-Roman world, so am I. compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

You deplore the demonstrations taking place In Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city's white power structure left the Negro community with no alternative.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self-purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community.

Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good-faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants --- for example, to remove the stores’ humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self-purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct-action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic withdrawal program would be the by-product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoralty election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run-off we decided again to postpone action until the day after the run-off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct-action program could be delayed no longer.

You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.

The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant 'Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."
We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you know forever fighting a degenerating sense of "nobodiness," then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to embrace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws. I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Councilor or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fan in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with an its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God-consciousness and never-ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber.

I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely rational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co-workers with God, and without this 'hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

You speak of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the facts that stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self-respect and a sense of "somebodiness" that they have adjusted to segregation; and in part of a few middle class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best-known being Elijah Muhammad's Muslim movement. Nourished by the Negro's frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible "devil."

I have tried to stand between these two forces, saying that we need emulate neither the "do-nothingism" of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle.

If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as "rabble-rousers" and "outside agitators" those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black-nationalist ideologies a development that would inevitably lead to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent-up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides-and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: "Get rid of your discontent." Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist.

But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever-flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self-evident, that an men are created equal ..." So the question is not whether we will be extremists, but what kind of extremists will we be? Will we be extremists for hate or for love? Will we be extremist for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime---the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jeans Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still too few in quantity, but they are big in quality. Some-such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle---have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach-infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation.

Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you have taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a non segregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who 'has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church, felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leader era; and too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained-glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, on Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious-education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Walleye gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? l am in the rather unique position of being the son, the grandson and the great-grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful, in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators"' But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests.

Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Par from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent and often even vocal sanction of things as they are.

But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust.

Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom, They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jail with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment.

I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham, ham and all over the nation, because the goal of American freedom. Abused and scorned though we may be, our destiny is tied up with America's destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation-and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands.

Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping "order" and "preventing violence." I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department.

It is true that the police have exercised a degree of discipline in handing the demonstrators. In this sense they have conducted themselves rather "nonviolently" in pubic. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: "The last temptation is the greatest treason: To do the right deed for the wrong reason."

I wish you had commended the Negro sit-inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face Jeering, and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy-two-year-old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: "My feets is tired, but my soul is at rest." They will be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience' sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo-Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.

Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear-drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of Peace and Brotherhood,

MARTIN LUTHER KING, JR.

 

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City of Abilene cuts pay raises, designates three unpaid furlough days

Abilene Reporter News
By Doug Myers
Posted February 4, 2010 at 1:03 p.m. , updated February 4, 2010 at 3:07 p.m.


Significantly less than expected sales tax revenues has prompted the city of Abilene to take drastic steps, including eliminating an upcoming pay raise and making plans to furlough all employees for three days without pay.

In an announcement Thursday, the city reported the furlough days will be on three Fridays - March 19, April 23 and July 2.

The three days without pay are planned for all city employees, including sworn police officers, city officials said.

"Obviously scheduling is problematic, but next week we will identify a staffing strategy that will enable us to implement furloughs while not impacting emergency services," Police Chief Stan Standridge said.

"Our citizens need to know and truly believe that we will not do anything that jeopardizes the safety of this community," Standridge said. "When they call, we will still come."

A city news release noted additional evaluation of the planned furloughs will occur "before any final decision is made regarding participation by employees providing such services."

Additionally, the city said a 2 percent pay raise for city workers - except for police and fire - scheduled for the end of March has been eliminated.

Among those not receiving the pay hikes will be four City Council appointees - City Manager Larry Gilley, City Secretary Danette Dunlap, City Attorney Dan Santee and Municipal Judge Keith Barton.

Police and fire employees, however, will still receive previously agreed-to salary increases during the current fiscal year. Last year, police and fire associations agreed to defer negotiated pay raises. A planned 4 percent pay raise for fire employees is scheduled for April 13, while a scheduled 6 percent raise for police employees is slated for Sept. 14.

The city is also instituting a Voluntary Retirement Incentive Program, similar to one it offered last summer, that provides a cash incentive for those who qualify and choose to retire.

Participants will be paid equal to one week's salary for each year of service - with a minimum payout of four weeks and maximum payout of 12 weeks. Those participating must agree to retire on or before March 13.

The cutbacks are coming at a time when Abilene's sales tax revenue is presently down 11.39 percent for the current fiscal year, which began Oct.1, when compared to the same period a year ago.

The total reduction in anticipated sales tax revenue is approximately $1.2 million. Sales tax revenues constitutes roughly 38 percent of the $70.5 million generated in the city's current 2010 fiscal year general fund budget.

Councilman Anthony Williams said the city administration is taking appropriate steps.

According to Williams, action must be taken when one of the two primary sources of funding is significantly reduced, noting sales tax revenues constitute 38 percent of city revenue. The remainder, in large part, comes from property taxes, Williams said.

Councilman Stormy Higgins said the council made about $5.2 million in adjustments before passing the current budget, including eliminating vacant positions, offering a voluntary retirement incentive, delaying fire and police raises, consolidating services, and refinancing city debt at lower interest rates.

"As the year has progressed and sales tax figures have been lower than expected, the result is that the balanced budget we passed is no longer in balance," Higgins said. "One part of being financially responsible is to continually monitor your progress and to make adjustments as needed. With sales tax numbers as low as they have been, the time has come to make some tough decisions.

"The longer we wait to address the shortfall the harder it will be get back into balance and the more severe the adjustments will have to be. So these... steps are ways to reduce expenditures in order to keep the budget balanced."

 

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Irving Blog: Woman sentenced to 34 years for stealing Irving ISD teachers' identities

01:53 PM CST on Thursday, February 4, 2010
By KATHERINE LEAL UNMUTH / The Dallas Morning News
kunmuth@dallasnews.com

Editor's note: This item was taken from dallasnews.com's Irving blog.

This morning, Judge Mike Snipes sentenced Sharon Denise Seeley , 40, to a total of 34 years in jail for her role in the identity theft of numerous current and former Irving schoolteachers.

Seeley pleaded guilty, and the judge gave her two years apiece for credit card abuse and 30 years for fraudulent use or possession of identifying information. She could be eligible for parole in about eight years.

Seeley told police that she found a binder of personal information including social security numbers of up to 3,400 people thrown into a school district Dumpster. Police told victims that about 96 victims have been recorded.

Three teachers spoke in court today about how the theft impacted their lives. Many shared that they suffered health-related problems. They also detailed thousands of dollars in charges in their name that wrecked their credit. Seeley had their home addresses, and they believe that she and others even waited at their residences to intercept deliveries of items they had purchased. Irving police originally arrested Seeley in January 2009 at Irving Mall after she tried making purchases in the name of teacher Shellie Pearce.

In court, she apologized, saying that she was addicted to methamphetamine and turnded to crime to pay for her habit and support her daughter.

Many teachers are still upset with the school district, which is in the process of compensating them for damages.

"It's affected my health, my family time, my energy and my trust of strangers," said teacher Dawn Bizzell. Those of us who are victims have been given a life sentence. We're having to pay the price forever."

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Week of February 1, 2010

County Text Message Policy Is in the Works Concerning Public Records Issue

( page of 3 )

The policy is unrelated to an earlier change in the county's personnel policy that prohibits county employees from using mobile communication devices while driving.

Instead, it involves compliance with Florida's public records laws.

Under Florida law, all communications by public officials and employees - except some that are specifically exempted - are open to public scrutiny.

Some local governments, including neighboring Osceola County, already have restricted or banned the practice to make sure they're not violating the law.

The issue, which has been discussed in various forums for at least the past year, also has spurred litigation.

A Fort Lauderdale police union has sued to obtain copies of text messages the city manager sent to one of his aides after the manager denied the union's public records request.

Herr said he doesn't text.

"I don't see what purpose texting serves," he said.

County commissioners told staff they don't text.

Unlike e-mails, which are captured and archived by Polk County's IT staff, text messages go through Verizon's server.

"Our technology doesn't allow us to capture texts; we have to go to the provider," Herr said.

Herr said any recommendation he makes would require approval by the County Commission.

No date for such a recommendation has been set, he said.

Meanwhile, relatively little texting occurs among county employees, Herr said.

Ed Wolfe, Polk's IT director, said texting capabilities have been blocked on 490 of the 727 devices used by county staff.

He said by the end of February he will have a system in place that will capture all texts without going through Verizon.

Wolfe said the bulk of the traffic involves public safety employees who use text messages to send one-way alerts, adding that automatic text messages also are transmitted from facilities such as sewer lift stations to alert county staff of problems.

Nevertheless, Wolfe said there's no reason for county staffers to text when they can send an e-mail message.

Public safety employees aren't the only county workers who communicate with text messages.

According to a survey Wolfe conducted, text messaging also is used by staff members at the Central Florida Development Council and in the Equal Opportunity, Supplier Diversity, Communications, Purchasing and Waste Resources departments.

The reasons given range from communicating with clients and vendors to communicating with staffers who do not have devices that accept e-mail.

There was one instance where texting was used to communicate with a staff member who is hearing-impaired, but Wolfe said an e-mail would serve the same purpose.

Elsewhere in Polk, the policies vary.

Lakeland has no formal policy on text messaging, spokesman Kevin Cook said.

However, Cook said none of the phones issued to city employees have texting capabilities anyway.

City Attorney Tim McCausland said he wasn't sure whether any city officials were using text messages to communicate, but agreed the city has a duty to keep any messages.

"We probably ought to have a policy," he said.

In Winter Haven, city officials have disabled texting for all employees except "emergency responders," said spokeswoman Joy Townsend.

 

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County offers health clinic for employees to save money

Different benefit scheme doesn't please everyone

By Robert Allen
Summit Daily News

Saving on doctor visits

The clinic has a pharmacy offering generic medications purchased at wholesale prices, which is also expected to reduce expenses.

Vargo said that with local physician visits costing a “much larger out-of-pocket expense,” it is anticipated that the county clinic will more-likely make people seek preventative care.

A typical visit to the clinic involves a $15 co-pay with no lab fee for traditional tests and no cost for generic medications, Vargo said.

The clinic has one doctor, one physician's assistant and two nurses, with an additional doctor to be added as backup.

It offers most primary care services but no immunizations, no prenatal care and no X-rays.

Vargo said the clinic is not mandatory.

He said there's “no reason” people can't see their family — or other — doctor with whom they've developed a comfort level.

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Week of January 25, 2010

Is pace of technological change causing mini generation gaps?
Brad Stone:
Dallas Morning News
04:22 PM CST on Friday, January 15, 2010

My 2-year-old daughter surprised me recently with two words: "Daddy's book."  She was holding my Kindle.

Here is a child only beginning to talk, revealing that the seeds of the next generation gap have already been planted. She has identified the Kindle electronic reader as a substitute for words printed on physical pages. I own the device and am still not completely sold on the idea.

My daughter's worldview and life will be shaped in very deliberate ways by technologies like the Kindle and the new magical high-tech gadgets coming out this year - Google's Nexus One phone and Apple's impending tablet among
them. She'll know nothing other than a world with digital books, Skype video chats with faraway relatives, and toddler-friendly video games on the iPhone. She'll see the world a lot differently from her parents.

But these are also technology tools that children even 10 years older did not grow up with, and I've begun to think that my daughter's generation will also be utterly unlike those that preceded it.

Researchers are exploring this notion, too. They theorize that the ever-accelerating pace of technological change may be minting a series of mini generation gaps, with each group of children uniquely influenced by the tech tools available in their formative stages of development.

"People two, three or four years apart are having completely different experiences with technology," said Lee Rainie, director of the Pew Research Center's Internet and American Life Project. "College students scratch their heads at what their high school siblings are doing, and they scratch their heads at their younger siblings. It has sped up generational differences."

One obvious result is that younger generations are going to have some very peculiar and unique expectations about the world. My friend's 3-year-old, for example, has become so accustomed to her father's multitouch iPhonescreen that she approaches laptops by swiping her fingers across the screen, expecting a reaction.

And after my 4-year-old niece received the very hot Zhou-Zhou pet hamster for Christmas, I pointed out that the toy was essentially a robot, with some basic obstacle avoidance skills. She replied matter-of-factly: "It's not a robot. It's a pet."

These mini generation gaps are most visible in the communication and entertainment choices made by different age groups. According to a survey last year by Pew, teenagers are more likely to send instant messages than slightly older 20-somethings (68 percent vs. 59 percent) and to play online games (78 percent vs. 50 percent).

Larry Rosen, a professor of psychology at California State University, Dominguez Hills, and the author of the coming Rewired: Understanding the iGeneration and the Way They Learn, has also drawn this distinction between what he calls the Net Generation, born in the 1980s, and the iGeneration, born in the '90s and this decade.

Now in their 20s, those in the Net Generation, according to Rosen, spend two hours a day talking on the phone and still use e-mail frequently.

The iGeneration - conceivably their younger siblings - spends considerably more time texting than talking on the phone, pays less attention to television than the older group and tends to communicate more over instant-messaging networks.

Rosen said the newest generations, unlike their older peers, will expect an instant response from everyone they communicate with and won't have the patience for anything less.

"They'll want their teachers and professors to respond to them immediately, and they will expect instantaneous access to everyone, because after all, that is the experience they have growing up," he said. "They should be just like their older brothers and sisters, but they are not."


The boom of kid-focused virtual worlds and online games like Club Penguin and Moshi Monsters especially intrigues Mizuko Ito, a cultural anthropologist and associate researcher at the University of California Humanities Research Institute.

Ito said children who play these games would see less of a distinction between their online friends and real friends; virtually socializing might be just as fulfilling as a Friday night party. And they would be more likely to participate actively in their own entertainment, clicking at the keyboard instead of leaning back on the couch.

That could give them the potential to be more creative than older generations - and perhaps make them a more challenging target for corporate marketers. "It's certainly no longer true that kids are just blindly consuming what commercial culture has to offer," Ito said.

Another bubbling intra-generational gap, as any modern parent knows, is that younger children tend to be ever more artful multitaskers. Studies performed by Rosen at Cal State show that 16- to 18-year-olds perform seven tasks, on average, in their free time - like texting on the phone, sending instant messages and checking Facebook while sitting in front of the television.

People in their early 20s can handle only six, Rosen found, and those in their 30s perform about five and a half.

That versatility is great when they're killing time, but will a younger generation be as focused at school and work as their forebears?

"I worry that young people won't be able to summon the capacity to focus and concentrate when they need to," said Vicky Rideout, a vice president at the Kaiser Family Foundation, which will release a sweeping survey on the technology and media habits of children and teenagers this month.

Children my daughter's age are also more likely to have some relaxed notions about privacy. The idea of a phone or any other device that is persistently aware of its location and screams out its geographic coordinates, even if only to friends, might seem spooky to older age groups.

But the newest batch of Internet users and cellphone owners will find these geo-intelligent tools to be entirely second nature and may even come to expect all software and hardware to operate in this way.

Here is where corporations can start licking their chops. My daughter and her peers will never be "off the grid."

And they may come to expect that stores will emanate discounts as they walk by them, that friends can be tracked down anywhere.

"If it's something you grow up with, you have a completely different comfort with it than someone who has had to unlearn something about the world," said Rainie, of the Pew project.

It's not yet clear whether these disparities between adjacent groups of children and teenagers will simply fade away, as the older groups come to embrace the new technology tools, or whether they will deepen into more serious rifts between various generations.

But the children, teenagers and young adults who are passing through this cauldron of technological change will also have a lot in common. They'll think nothing of sharing the minutiae of their lives online, staying connected to their friends at all times, buying virtual goods and owning one uber-device that does it all.

They will believe the Kindle is the same as a book. And they will all think their parents are hopelessly out of touch.

 

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Marty Brennan named Director of Human Resources

Assistant Director of Human Resources Margaret Brennan has been appointed Richardson's Director of Human Resources effective Feb. 1, City Manager Bill Keffler announced. Brennan fills the position being vacated by former Director of Human Resources Phyllis Stadler who retires Jan. 31 after 20 years of service.

"Marty has been instrumental in establishing the outstanding Human Resources function in place today which is a support area so important to our ability to provide quality public service and be a preferred employer", said City Manager Bill Keffler. "It has been especially rewarding to see the impact of Marty's dedication and service over the past 24 years and her leadership as Director of Human Resources will allow for continued excellence in Human Resources."

Brennan will oversee the Human Resources (HR) Department for the City of Richardson that administers the civil service rules and manages the compensation plans and benefits for the City's 977 full-time and 300 part-time employees. HR is also responsible for employee recruitment, risk management and City-wide testing and training.

"It is an honor to be invited to join the management team and a thrill to work everyday with the employees of the City of Richardson," Brennan said. "I am excited about this opportunity and look forward to continuing the high standard of excellence the Human Resources Department has always maintained"

Brennan began her career with the City of Richardson in 1986 as Assistant to Director of Personnel. She became Personnel Manager in 1990 and was named Assistant Director of Human Resources in 1997. She has particular expertise in recruitment, grievance and complaint procedures, personnel policies, training, risk management and Civil Service procedures.

Previously, Brennan was employed by the State Farm Insurance Company as an underwriter and by Aracada Book Group as an employee relations specialist.


Brennan received her bachelor of science in business degree from the University of Tennessee and completed post graduate studies at the University of Tennessee College of Law. She holds the personnel administrator's certification from Southwest Texas State University (now Texas State University) and the certified professional designation from the International Personnel Management Association-Human Resources.

She is a graduate of Leadership Richardson (Class VII), Richardson Citizen Police Academy, is a member of the Dallas Human Resource Management Association, the Texas chapter of the Public Risk Management Association, the American Society for Training and Development and served on the board of directors for Neighborhood Youth and Family Counseling from 2003 until 2009.

Brennan and her husband, Mark, live in Plano. She has two children, Susan Brennan Stern who teaches French at J.J. Pearce High School in Richardson and Matthew Brennan who is a civil engineer.

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Editorial: Lewisville leader wants to expand E-Verify use

05:45 PM CST on Tuesday, January 12, 2010

To better understand our nation's problem enforcing its immigration laws, let's visit our old friends, supply and demand.

What is E-Verify?

.E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States.

.Companies can access E-Verify online and compare an employee's Form I-9 information with more than 444 million records in the Social Security Administration's database, and more than 60 million records in Department of Homeland Security immigration databases.

.There is no charge to employers to use E-Verify.

.The E-Verify system is operated by the Department of Homeland Security in partnership with the Social Security Administration.

.More than 175,000 employers are enrolled in the program, with more than 8.5 million queries run through the system in fiscal 2009.

.E-Verify is mandatory for some employers, such as those with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify clause and employers in certain states.

.Federal contractors and subcontractors are required to use E-Verify as of Sept. 8, 2009. Executive Order 12989 mandates the electronic verification of all employees working on any federal contract.

SOURCE: U.S. Department of Homeland Security at dhs.gov


Supply is represented by the thousands, if not millions, of people living in distant lands willing to hazard illegal entry into the U.S. to find work. Demand is those employers willing to look the other way, in violation of the law, to hire them.

Supply isn't going away, even in a down economic time. Demand is a legitimate target.

Clearly, this newspaper continues to support a comprehensive overhaul of our immigration laws that provides border security, interior enforcement, a guest-worker program and a reasonable path to legalization. This was the case long before the bitter immigration fight of 2007, which led to little substantive change.

The Obama administration has sent strong signals that it wants Congress to try again this year, even in the face of approaching mid-term elections. We are cautiously optimistic, if only for those taxpayers and companies trapped in an unworkable system but still trying to do the right thing.

One right thing is to use E-Verify, a federally maintained electronic database of Social Security and other records. Employers can access the system to check the immigration status of workers or prospective hires. Legal challenges and legislative timidity have kept E-Verify from becoming a mandate, despite a success rate of better than 96 percent and increasingly small percentage of errors.

Here in North Texas, Lewisville City Council member John Gorena is tired of waiting. Lewisville already uses E-Verify to clear city employees for paychecks, and Gorena wants to extend that to any contractors the city hires. "Our tax dollars should go to those companies that are doing their due diligence," he says.

Expanding the use of E-Verify to limit employers' use of illegal immigrant labor makes sense, unless you favor the shadowy underground labor market we have today. Lewisville's city staff is researching Gorena's proposal, with further discussion scheduled for a Feb. 4-6 retreat.

Other city officials have reasonable questions about the details. How far would the measure go? Would this ultimately bar the city from shopping with local retailers who decline to use E-Verify? Would it place Lewisville at a competitive disadvantage as the only Texas city so restricting its contractor pool?

No North Texas city wants to face the divisive battles made infamous in Farmers Branch, another Dallas suburb that attempted to step in where federal immigration law failed. Gorena says he's less concerned about that than making sure Lewisville is doing all it can for its residents.

For our part, we're confident smart staffers in Gorena's city can fill in the details and help craft an ordinance that would accomplish his goal - minimizing the hiring of illegal workers - while protecting the city from undue liability.

In the absence of federal reform, a city like Lewisville will have to take the first step, perhaps leading to a longer-range solution like the Legislature passing a law that forbids Texas municipalities and school districts from using contractors who failed to E-Verify their workers.

>From city to state to the halls of Congress and - who knows? - perhaps one day a true overhaul of our nation's immigration laws. We can dream, can't we?

 

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