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A Story of Government Without Law
Copyright © 2006 by Alan R. Adaschik Some Rights Reserved. This book belongs to the American people, the author, Alan R. Adaschik, gives permission for anyone to reproduce it whole or in part, by any means, electronic or mechanical, including recording, photocopying, online services, or by an information storage or retrieval system for the expressed purpose of providing this book to other people. In doing so, the reproducer my recover all-reasonable incurred costs, but must not, under any circumstances, realize a profit. Reproduction of this book for profit earning purposes is in violation of United States copyright law and shall be prosecuted to the full extent of the law. -2-
This book is dedicated to the unnamed and uncounted people throughout the world who have bitterly suffered because they had the courage to stand up and do the right thing, despite the questionable or illegal requirements of their bosses and supervisors. They know who they are and know all too well the price exacted for their commendable actions; demotion, black list, ostracism, stress, humiliation, guilt, fear, remorse, depression, mental collapse, divorce or suicide. They also know why those in positions of authority exact this price, to facilitate a hidden agenda beneficial to themselves and their cronies. All Whistleblowers deserve accolades and a reward for their brave actions. Their oppressors, on the other hand, deserve to be charged, tried, and sent to jail because, in the final analysis, they are traitors to the organization they represent and a curse upon the people of this Nation. Unfortunately, this never happens because tormenting people of honor and integrity is not a felonious crime.
Author’s Statement ……………………………………………………………. 5 About the Author Introduction Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 ……………………………………………………………. 6 ……………………………………………………………. 7 The Problem ………………………………........... Mom, Pop, & Apple Pie ………………………… 9 12
Prelude To A Grievance ……………………….. 14 My Grievance ………………………………………. 32 The Grievance Process ……………………....... 37 The Grievance Committee …………………….. 50 The Grievance Conclusion …………………….. 57 Prelude To An Appeal …………………………… 66 A Civil Service Board Appeal …………………. 73 An Appellate Appeal …………………………….. 77 A Discretionary Appeal …………………………. 88 An Appeal To The City Manager ……………. What’s Wrong ……………………………………… 97 114
A GATT Appeal To Congress …………………. 120 A GATT Appeal To The Supreme Court ….. 147 Conclusion ………………………………………..…. 160
This is a book of letters documenting my experiences in the Public Service. Unfortunately, the story is not unique. Similar stories are far too common to far too many people throughout this Nation. The primary difference in this story is that it has been meticulously documented. There is a lesson to be learned herein. However, this lesson will only have value if we, as a people, hear and act upon it. Nothing worthwhile in life comes to those who do nothing. All letters presented have been edited for clarity and readability. Their content and meaning have not been changed.
About The Author
Al Adaschik was born in New London, Connecticut, on June 27th, 1943; raised in Brooklyn, New York and attended Franklin K. Lane High School. Upon graduation, he was accepted as an engineering student at the University of Michigan in its Naval NROTC program. Upon completing college, Al qualified for Navy flight training and received his wings as a Jet Fighter Pilot in June of 1966. After completing his tour of duty, he left the service and earned a MBA from Long Island University at the C.W. Post Center, in Greenvale, Long Island. Al has worked as a Flight Test Conductor for the Grumman Aerospace Corporation, a Financial Analyst for the Singer Company, a Senior Financial Analyst for Pratt & Whitney Aircraft, a Financial Administrator for the City of Fort Lauderdale, and is presently retired from that position. Upon moving to Florida in 1976, Al and his first wife, Pam, opened and managed a School of Olympic Style gymnastics called The Gym, Inc. The Gym was the home of the Tumblebees (the girls gymnastic team) and the Stingers (the boys gymnastics team). Team colors were yellow and black. The phrase “Yea Buzz” was a common expletive heard around the gym anytime something good happened or a team member mastered a new trick. The Tumblebees, under the tutelage of Pam and Head Coach Tim Rand, rapidly became the most successful gymnastics team in the South Eastern United States; winning many honors and awards at both the State and Regional levels of competition. Eventually, Al, in partnership with Dann Smith, capitalizing upon the success of the Tumblebees and their reputation, began franchising Tumblebee mini-gyms in malls and shopping centers throughout South Florida. Nine locations were developed and Dann and Al had visions of going nationwide with their concept. However, an undercapitalized situation combined with the launching of a disastrous “Gym-OnWheels” venture, drove the Tumblebees into bankruptcy. When not writing or working, Al has found the time to serve as a State Reporter for International Gymnast Magazine, Director of the Riverside Park Resident’s Association, Director of Riverside Renaissance, Inc., Treasurer of the Mamas and Papas of Broward County (a charitable social organization), Congressional District Coordinator of United We Stand America (a non-profit educational organization started by Ross Perot), and First Vice-Commander for American Legion Post #36 in Fort Lauderdale. Al is now retired and lives in Ormond Beach, Florida, with their dogs, Sally and Scooter.
A friend of mine, who happened to be in a courthouse one day, overheard a little boy ask his mother, “Mommy, what is this place?” His mother, drawing him close, responded, “This is where the government gives you your rights.” This response, although touching, is unconscionably wrong and I believe it illustrates a grave misconception that people have about government today. What does it mean to be an American? The answer to this question means many things to many people, but the two most fundamental and unique aspects of the American experiment in democracy, is that Americans subscribe to the principle that our rights are “inalienable” and that it is the People who have established our government. In other words, our “rights” belong to us, independent of government. They are not given to us by government, and cannot be taken away by government because we established the government. These two important principles are emphasized in The Declaration of Independence where it says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights that among these are the rights of life, liberty, and the pursuit of happiness.” And “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Being “American”, therefore, above all other considerations, is the understanding that we possess inalienable rights and that the power and authority of our government comes from us, the people who established it. It is well and good to say that the power of government in America is derived from its people, but how do we ensure that this is the case? The answer to this question is by drafting a Constitution. Our Constitution is a legal instrument whereby the American people have told those who govern us how to act. In a way, it can be thought of as the original “Contract with America”. However, this description is not entirely accurate because the Constitution is not a contract. Government had no say in its development or acceptance. We the People created and imposed the Constitution upon our government to control and protect us from those we entrust to govern us. This is -7-
why the Constitution is so important to us and why so many of us have laid down our lives in its defense. If we possess inalienable rights, if the power of government is derived from us, and if being American means that these truths are inviolable, then if they are violated, it follows that the American experiment in democracy is over and we are a subjugated People. This being true, what would constitute our subjugation? If either of two events happen: The government takes away any one of our constitutional rights. The government no longer adheres to the precepts of the Constitution we imposed on it. The first item is understood by most Americans today. Unfortunately, for America, the second item appears to have been forgotten and this will be our undoing.
10….9....8....7....6....5....4.…We have main engine start...3....2...1…SRB ignition…Lift off… “Roger, go with throttle up”. With these words, spoken by Commander Dick Scobee on January 28, 1986, the space shuttle Challenger rose into a clear-blue sky with seven astronauts onboard. Seventy-four seconds later, the pillar of smoke upon which the Challenger rose became a “Y”. The World stared in disbelief as Dick Scobee, Greg Jarvis, Ronald McNair, Ellison Onizuka, Judy Resnik, Mike Smith and Christa McAuliffe plunged to Earth, unseen, but alive and conscious in an intact command module, only to be crushed to death three minutes later upon impact with a cold and unforgiving ocean. The centerpiece of President Ronald Reagan’s state of the union address and seven American astronauts disappeared in a cloud of burning hydrogen despite the prayers of those watching from the ground. What went wrong? ****** In 1965, the graduating class in the School of Engineering at the University of Michigan was given a challenging assignment from Professor Wilbur C. Nelson, Chairmen of the newly renamed Aerospace Engineering Department. Design a weather satellite and launch system that is highly reliable and low in cost. In addition, complete a feasibility study of launching this satellite from the University of Michigan’s Keweenaw Research Range on the Keweenaw Peninsula, located approximately at the physical center of Lake Superior. The eighteen seniors and four graduate students participating in Project POSSUM (Polar Orbiting Satellite System of the University of Michigan) approached their assignment with a zeal that amazed industry professionals. Project POSSUM was a huge success, but despite the glowing accolades heard on graduation day, the Project included a serious flaw. Several launch sites were investigated by the Project’s Launch Facilities Group and were found wanting save the one located at Point Arguello, California. As directed, the Keweenaw Peninsula site was examined closely, but the population densities within the impact areas of the Scout launch vehicle’s first two stages, precluded a safe launch from that site. When this was reported to Professor Nelson, he instructed the launch group to go back and re-evaluate the situation. Upon doing so, the conclusion did not change. -9-
A safe launch from Keweenaw was not possible. Upon reporting this to Professor Nelson, his response remained the same: go back and re-evaluate the situation. It was clear to those of us working in the Project POSSUM Launch Group, that Professor Nelson would accept nothing less than an endorsement to launch at Keweenaw. This revelation divided us into two factions: those that wanted to honor Professor Nelson wishes and a minority group set against compromising. Those in favor of accommodation, being the majority, won out and in the Appendix to the Project POSSUM, report dated June 23, 1965, the following statement appears: ”The problems of turning the Keweenaw Range into a small payload launch facility are not insurmountable and the advantages for such a site outweigh the disadvantages.” For the graduating class of 1965, from the school of Aerospace Engineering at the University of Michigan, Project POSSUM was over. However, for Professor Nelson it was just the beginning of a dream to turn the Keweenaw Range into the Nation’s primary small payload launch facility. Fortunately, for the people living down range, Professor Nelson’s dream did not materialize. However, the reality faced by those of us working on the project was that the engineers, who were willing to accommodate Professor Nelson’s wishes, received an “A” in his course and the engineers who stood on principle received a “B”. ****** Why did the Challenger explode? Hot burning gases from the shuttle’s solid fuel booster rocket burned through an “O” ring seal and ignited the liquid hydrogen stored in its massive external fuel tank. While this was the physical cause of the disaster, the story does not end here because, as publicly acknowledged after the disaster, the “O” ring problem was known prior to launch by NASA managers and the engineers at Morton Thiokol, manufacturer of the shuttle’s solid fuel booster rockets. It was also known that cold weather aggravated this “O” ring problem. Because of these facts, Morton Thiokol tried to convince NASA officials that it was too cold to launch safely on a day when morning temperatures hovered in the high twenties. Why did the launch proceed? President Reagan wanted to use the launch of the Challenger, with schoolteacher Christa McAuliffe on board, as the centerpiece of his state of the union address later that evening. Furthermore, the Challenger’s launch had been scrubbed several times previously. These two circumstances made a significant contribution to the ‘go despite the risks’ mode of thinking at NASA and, unfortunately for all concerned, overruled the laws of physics, common sense, and the protestations of lower level engineers who were adamant about the inevitable consequences of - 10 -
launching in cold weather. The Challenger disaster, therefore, was not an accident in the true sense of the word, but rather a situation where political considerations clashed with physical reality and the latter prevailed. The individuals who made the decision to launch, similar to the “A” students at the University of Michigan, placed pleasing the boss above all other considerations and thereby condemned seven Americans to a horrible death. ****** Government, in America today, is not working properly. It is a rare event to pick up a newspaper or magazine and not find an article about gross and flagrant violations of the public trust. The headlines are all too familiar. From Watergate to Ruby Ridge, at the National level, and a never-ending kaleidoscope of sweetheart deals at the local level, the story is always the same. The guilty rarely suffer for the harm they do and John Q. Citizen ends up paying the tab. Reader’s Digest used to have a feature called “That’s Outrageous”, which pointed out the follies of those pledged to serve the public in the hope that “spotlighting absurdities in our society is the first step toward eliminating them”. Despite years of doing this, the absurdities continue and multiply. What’s wrong? The answer to this question can be found in Project Possum and the Challenger disaster. A system of personnel administration has been created throughout the public sector of this Nation that values pleasing the boss and a willingness to practice deception above all else in consideration for advancement to positions of responsibility and authority. This system exists in spite of the many rules and regulations prohibiting it because of loopholes that allow officials to ignore the rules when expedient. These loopholes were deliberately created to enhance the authority and control of those entrusted with power. The situation has progressed to a point where the checks and balances that should exist are dysfunctional allowing the rip-offs, inefficiencies, and absurdities to continue and multiply ad nauseam. The consequences associated with a corrupt system of personnel administration became painfully obvious in the Challenger disaster because physical reality overruled the political realities that drive the system. However, the laws of physics are not a factor in most things our government does. Therefore, the consequences are not as immediate or apparent. However, they are there and we all pay a horrendous price because of them.
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Chapter Two Mom, Pop, & Apple Pie
I was born in New London, Connecticut, on June 27, 1943. My mother was of Polish extraction and my father’s parents came from Russia prior to the Communist takeover of that country. An older brother preceded me into the world and this is the extent of my immediate family. When I was born, my father was working as a welder for Electric Boat in Groton, Connecticut, building submarines. At the end of the war, “because submarines would not be needed in peacetime”, we moved to Brooklyn, New York, where my father found work in the garment industry. At the time, garment workers were among the highest paid workers in the Nation. Eventually, my father was hired as a piece-worker by Robert Hall Clothes and through the years, worked up to Production Manager of their clothing factory on Atlantic Avenue in Brooklyn. I was blessed with wonderful parents. They lived for our family and we always had more than we needed. When my grandfather sold his farm in Connecticut, he kept a five-acre parcel of land and gave it to us for a summer home. We started with four one-room shacks that had no heat, bathroom, electricity, or running water. I still can remember the warm glow of kerosene lamps going to sleep at night and the smell of oatmeal cooking on a kerosene stove in the morning. The road that ran by our property was unpaved and there were no streetlights to hide the stars or steal the show from the numerous fireflies that filled the night. Eventually, with the help of some friends, Dad tore the shacks down and built a two-room bungalow with electricity. He also installed a pump to get water into the house. Now we were really living! The water was still cold, but at least you did not have to draw it from a well. However, we still had to walk a hundred yards or so to the outhouse. By the time I went to college, the two-room bungalow had become a four-room cottage sporting all the amenities we now take for granted. I was rich growing up and money had nothing to do with it. My brother and I did well in high school, at least well enough to earn NROTC scholarships to the University of Michigan. Upon graduation, we were both accepted for flight training. Until this point in life my brother, being older, held the upper hand. However, in the Navy this situation changed because I became a jet fighter pilot serving with the World Famous Red Rippers, the Navy’s oldest continuously commissioned fighter squadron and my brother became, as less advanced pilots are known to us “Jet Jocks”, a “Prop Puke”, flying the S2F Tracker, a piston engine sub chaser. Having the upper hand did not last long because after leaving the service, I ended up as a financial administrator. My brother stayed in - 12 -
the Naval Reserves, rose to the rank of Captain and is now a high-level executive for Whirlpool. I have mixed emotions about leaving the service for two reasons. First, I do not consider myself a success professionally and secondly, because of the Challenger disaster. Upon arriving in Pensacola, Florida, for flight training, I took a battery of tests to see if I qualified for astronaut training. Upon completion of the initial tests for this program, I inquired as to how I did. The test administrator responded that my results were average. Chagrined at this answer, I asked what average meant? He replied that of the astronauts selected for training, my scores were average. One day in 1968, I had reason to visit the American Express Office in downtown Virginia Beach, Virginia, to mail a package. At the time, I was wearing my dress blues. I stopped on a street corner to wait for a light to change. Suddenly, I heard something splat on the sidewalk next to me. At first, I thought a pigeon had almost soiled my uniform, but when I saw the offending fluid, it was clear and not white. I looked up and much to my dismay saw a teenage girl glaring down at me. Apparently, she was the source of the fluid intended for my dishonor and I realized I just had an encounter with a Vietnam War protester. This incident affected me. I was never a strong supporter of the Vietnam War, but as a military professional, was willing to do my part in the service of my country. However, this incident made me wonder whom I was serving. For this and other reasons, I decided to resign my commission and seek my fortune in civilian life. Upon doing so, as an inducement to stay in the service, I was offered Post-Graduate School in Monterey, California, to study Aerospace Engineering. Foolishly, I turned this offer down. ****** On January 28, 1986, I stared at a television screen and watched the demise of seven fellow human beings aboard the Challenger. It dawned on me that I could have been there. Perhaps, if that young idealist hadn’t attempted to decorate my uniform with spittle and perhaps if fighting the Vietnam War had been more justified, maybe I would have been in that picture instead of watching it. My age and the possible career pattern were perfect. Navy Fighter Pilot, postgraduate school, test pilot school, a tour of duty as a Navy test pilot, astronaut training, the Challenger, and Boom…it all fits. Instead, I became a low-level administrator for the City of Fort Lauderdale. Not quite as exciting, but at least I am alive.
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Chapter Three Prelude to a Grievance
On March 22, 1988, I filed a grievance with the City of Fort Lauderdale that was fifteen pages long and included forty-five supporting attachments. The following narrative contains excerpts from those documents and a description of events leading up to my grievance. ****** Upon being hired by the City of Fort Lauderdale in 1981, as an Administrative Assistant, I received a letter of welcome from Joe Bachman, Personnel Director, that said, “If you do an effective job in your present assignment and prepare yourself for advancement, we are confident that you will enjoy a successful career in our City service. Shortly thereafter, I received a similar letter from City Manager Connie Hoffmann, where she said, "Opportunity Abounds within our City to those striving to achieve'' and "I feel that this appointment is a new launching pad for further achievement." These encouraging words, which meant so much to me when I first read them, have proven to be without substance in the light of the realities that exist for me within the Utilities Department. On February 25, 1986, I met with Allen Roberts, Utilities Director, to discuss my future with the City. His response was to ask me what I had in mind. I replied that an individual, who was the chief financial officer of a department with a budget exceeding 40 million dollars yearly, should at least be a Management Level III employee. I also explained that I was curious about what was going to happen upon the retirement of Lucky Jordan, Assistant Utilities Director, and my immediate supervisor. Mr. Roberts' response was to forget about being considered for Lucky’s position because he had decided whom he wanted for his assistant. He added that there was no way to justify a management level change based upon the organizational needs of the Department. I quickly countered that this was not true. The Equicomp Committee rated my present position as Management Level IV because I did not supervise enough people. I supervised Bob Malloy in his capacity as Inventory Control Supervisor, but he also functions as Safety & Training Officer. Furthermore, Rose Klarman, supervisor of our secretarial pool, reports directly to Mr. Roberts. An intermediate level supervisor for both these managers makes sense from an organizational point of view. If these changes were made, the chances were excellent that Equicomp would raise the Management Level of my position. I added that these modifications would eliminate a shortcoming in the organizational structure of the Department while giving my position the status and authority it deserves. - 14 -
Mr. Roberts would hear none of this. My conversation with him convinced me that my advancement from Administrative Assistant to Financial Administrator was not a reward for good performance, but instead, a move to make it appear that I had been promoted while placing me in a position where no further advancement would occur. I believe Mr. Roberts’ reason for taking this action stemmed from the fact that four years earlier I played a key role in terminating the dumping of raw sewage into the North Fork of the New River from the City’s sludge treatment facility at Plant A on NW 6th Street. When Karl Shallenberger, Environmental Inspections Supervisor for the Utilities Department, made me aware of this dumping, I reported the situation to Assistant City Manager Chuck Owens. I believed the dumping was preventable. The facts of the situation and the events that transpired after making my report support this conclusion. I provided Chuck Owens with a set of photographs of the sewage stream flowing out of the Plant A outfall and a note with the following comments: Enclosed you will find some pictures taken by me at Plant A this morning. What I saw instigated my phone call to you and a meeting between Allen Roberts, Lucky Jordan, Frank Coulter, and myself that hopefully, will be a new beginning for all of us. In any case, thirty truckloads of sludge were removed from the Plant over the weekend and the effluent was clear the following Monday. I leave on vacation this weekend. I trust Mike Just will monitor the situation and help ensure that this Department meets its responsibilities. I still find it hard to comprehend that the people entrusted with wastewater processing for the entire Region allowed this to happen. I guess those brought up in the system grow immune to what is shocking to the rest of us. I left the meeting referred to in my note to Mr. Owens, with the understanding that I was going to be promoted to the position of Administrative Services Coordinator. At the time, I did not realize a string was attached to this understanding, because shortly thereafter, the dumping resumed. I was appalled at this development and now had a tough choice. Do nothing and become part of the problem or do the right thing. Prior to departing on vacation, I discussed the situation with Dick Yost, my friend and neighbor, and Jay Ferry, a close friend who was my houseguest. We decided that following my departure, they would contact Connie Hoffmann and report the dumping again. I knew that a second report coming from private citizens could not be ignored. Upon returning from vacation, I found the Utilities Department in an uproar and learned from my coworkers that the City Manager’s Office was investigating my actions. They believed I was about to be fired because Mr. Roberts had said that I would be. Soon, he gave me the following memorandum.
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In regard to our previous conversation with Frank Coulter, I indicated that no formal action would be taken concerning the matter under discussion until a final decision is made with the City Manager's office. However, until the situation is resolved and in the best interests of the Department, I am reassigning you from the trailer to a desk in the clerical section at the Administration Building, since no other desk, space is available. You will be assigned specific tasks. Your first assignment will be to completely document the total filing system and the current methods for filing and retrieving data. You will make specific recommendations concerning methods to improve the system. This will include centralization vs. decentralization, structure of files, microfilming, relationship of project files and shop drawings and how this will be computerized for fast, efficient retrieving for field operations. You will not need to contact anyone outside of the immediate Administration Building except as authorized by the Assistant Director J. T. Jordan, Deputy Director F. T. Coulter or myself. You will be required to log in and out at the Assistant Director's Office. Your work hours will be 7:30 AM to 4:30 PM with lunch from 12:00-1:00 PM. I am also temporarily removing you from the Utilities Management Task Force so that you will be able to devote full time to your assigned projects in the Administration Building. Your cooperation and assistance in making this transition until a decision is reached, will be appreciated. ****** I responded to Mr. Roberts’s memorandum as follows: The events of the past few weeks have given me cause for concern. On June 27, 1983, my first day of work following a two-week vacation, I learned that it was common knowledge throughout the Department's administrative staff that my dismissal from the City was imminent due to allegations alleged to have been made by me against several department managers. Subsequent to learning about this situation, I was told you were the source of these rumors. On Monday afternoon, I was called to your office to meet with you and Frank Coulter. At that meeting, I was informed that: 1. 2. I had made unfounded allegations against several department managers. I was as, of that moment, removed from all present assignments and was to do nothing unless specifically directed to by Mr. Coulter, Mr. Jordan, or you.
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I should not contact or speak to any person working for the city outside the Utilities Department unless specifically directed to by Mr. Coulter, Mr. Jordan or yourself. I should limit my contact and conversations with Utilities' Department personnel to the Administrative staff and limit these conversations to official city business. I was at that moment removed from the Utilities Management Task Force and would confine all of my activities to presently assigned work. Use of my present office would no longer be permitted and in the future, I would utilize a desk in the large room within Administration presently occupied by Utilities Clerical staff. Through my actions, I had compromised my position and status within Utilities as well as other city departments, and therefore had ruined my effectiveness as your Administrative Assistant. You would not fire me because of my actions and would not take formal action until a final decision is made by the City Manager's Office. The reason for taking the above "so-called" informal actions is that I had broken the chain of command and talked to the Assistant City manager about problems within Utilities without discussing them with you first.
Yesterday, you gave me a written memorandum of “Reassignment”. This memo formalized most of your decisions related in the previous day's meeting and added some additional requirements. At a subsequent meeting, I was also told that Clive Lazarus, my Administrative Aide, would no longer report to me. My concerns with the above directions and actions on your part are as follows: 1. I am of the opinion that my speaking to the Assistant City Manager in the manner I did was in the best interest of the Utilities Department, the City of Fort Lauderdale and its citizens. 2. I believe that in speaking to the Assistant City Manager violated no City of Fort Lauderdale policy, procedure, and guideline or personnel rule. 3. I believe in the principles of the chain command, but know of no City of Fort Lauderdale policy or procedural guideline on the subject that establishes it as official city policy. 4. If the chain of command exists as official city or department policy, it is my understanding that situations exist where it can be broken. - 17 -
5. I believe your actions and directions to me are formal actions that serve to reduce my effectiveness as a manager, lower my status in the eyes of department personnel, and keep me from completing numerous important projects that have impact on the efficient operation of this Department. 6. I believe that my effectiveness as a manager within this Department has not been compromised. However, if your assessment of the situation is correct, you are the one who did the compromising through threats of dismissal and statements about me making accusations against my fellow managers. 7. I question whether you have the authority to tell me whom I can speak with or talk to in this city. 8. I do not believe it is proper for you to force me to work within the clerical section of Utilities. Several months after reporting to Utilities, I was informed that it was your intention to have four people work out of the trailer that I presently occupy. Only three people work there now and nothing has changed since. 9. I believe that your removing me from the Utilities Management Task Force is not proper or advisable considering the fact that it has not been established that I have acted improperly. The Task Force is a group of volunteers whose mandate is to address and recommend solutions to serious morale problems within Utilities. I am the elected Chairman of the Task Force and believe my record as Chairman is above reproach. I also question whether removing me from my elected position is proper without appraising its membership fully about the circumstances surrounding my removal and allowing the Task Force to decide the matter. 10. In general, I believe your actions concerning me these past few weeks are improper because, it has not been established that I have broken any official policies, procedures, guidelines, or personnel rules. Until this is established by proper authority, I believe I should continue to work as previously directed. It is obvious at this point in time that my career within the city is at stake. Furthermore, my integrity, professionalism, competence, judgment, motivations, and intentions have become suspect to the point where if I do not take further action I fear a great wrong will have been perpetuated against myself and in the final analysis, against the best interest of this Department and the City of Fort Lauderdale. ****** Concurrent with my writing the above letter, Connie Hoffmann wrote the following memorandum to the City Commission about the pollution incident and Chuck Owens’ investigation. - 18 -
MEMORANDUM NO. 83-456 TO: Mayor Robert A. Dressler Vice-Mayor Robert 0. Cox Mayor Pro-Tem Virginia S. Young Commissioner Richard A. Mills, Jr. Commissioner John E. Rodstrom, Jr. City Manager/Constance Hoffmann
SUBJECT: Status of Treatment Plant A Within the past month my office has received complaints from a Utilities Department employee and a concerned citizen about the level of pollution in New River from Plant A's effluent discharge. Due to the seriousness of the complaints, I had the Deputy City Manager Chuck Owens, personally investigate the situation. He found that Plant A has been in violation of regulatory requirements for every month since January 1983, that the pollution problem has been extremely serious, and that DER will fine the City a proximately $50,000 for the violation that occurred during the months of January and February. With both the new pump station in operation as of June 20 and the H & H sludge processing system now fully operational, Plant A will no longer discharge effluent to New River. These factors should end the problem. I intend to discuss this matter in detail with the Utilities Director, but thought you should receive Chuck’s report immediately. Given the seriousness of the problem, I recommend that you read the attached report summarizing Chuck’s conclusions regarding the causes for Plant A’s failure. ****** Chuck Owens’ report dated June 28, 1983, is a five-page document that, like Connie Hoffmann’s letter to the City Commission, acknowledges the seriousness of the dumping, which occurred over a five-month period from January to June of 1983. However, Mr. Owens found no fault with the City or any City employee in regard to actions taken before, during, or after the incident. He concluded that the dumping was caused by greater than anticipated water infiltration resulting from high rainfall levels that also precluded sludge disposal at a designated sludge disposal site. In his report, Mr. Owens revealed that the City had been issued warning notices about Plant A’s failure from the Florida Department of Environmental Regulation for January and February and was also warned that the City would be fined for these violations. He further stated that Mr. Roberts had informed the City Manager about the situation through a carbon copy of his reply to these notices of violation, but acknowledged that the City Manager was not apprised about the true nature and extent of the problem.
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The conclusions reached by Mr. Owens are not surprising. After all, he is a city official and as such, is prone to be biased. At least he acknowledged that Plant A’s failure was more than a matter of not meeting regulatory requirements and alludes to the fact that massive amounts of sewage had been dumped. However, left unexplained by Mr. Owens’ report is: If high levels of rainfall and infiltration caused the dumping, why did it occur over a five-month period? If infiltration of relatively clean rainwater contributed to the problem, how does this explain the massive amounts of sewage dumped? If the Broward County Environmental Quality Control was aware of Plant A’s failure in January and February as evidenced by the issuance of warnings, why were no warnings or citations issued for the months of March, April, and May? How could Broward County Environmental officials be aware of Plant A’s failure and not be aware of the extent of that failure? Why did the dumping stop when I first reported it, resume after my meeting with Department officials, and stop a second time after private citizens became involved? If the dumping could be stopped when necessary, why did it occur at all? Finally, if Mr. Owens did a thorough job of investigating this incident, why did he not talk to me before, during, or after his investigation? After all, I was the employee who brought the situation to his attention. The notice of violation referred to by Mr. Owens reads as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SOUTHEAST FLORIDA DISTRICT Governor P.O. Box 3858 Secretary 3301 GUN CLUB ROAD WEST PALM BEACH, FLORIDA 33402-3858 Bob Graham, Victoria J. Tschinkel, Roy M. Duke, District Manager
WARNING NOTICE # 06-847-83 CERTIFIED MAIL RETURN RECEIPT REQUESTED - 20 -
March 29, 1983 Mr. Allen B. Roberts, Utilities Director City of Fort Lauderdale Post Office Drawer 14250 Fort Lauderdale, Florida 33302 Dear Mr. Roberts: Re: Violations of Effluent Discharge Criteria, Fort Lauderdale Wastewater Treatment Plant “A" Under Chapter 403, Florida Statutes (F.S.), the Department of Environmental Regulation is delegated the power and duty to control and prohibit pollution of air and water in accordance with the law, and rules and regulations promulgated by the Department. You are hereby placed on notice that the Department believes you to be in violation of Section 403.161, F.S., and Department Rules and regulations, as noted and explained below: Monthly Operating Reports for January and February, 1983 show effluent from the Fort Lauderdale "A" Plant to be in gross violation of State effluent discharge criteria as follows: …This warning notice then goes on for two pages listing 523 specific violations and concludes as follows: The Department feels that the extent of the above (523) violations and consequent environmental damage to the New River ecosystem are so great as to merit the assessment of monetary damages against the City of Fort Lauderdale pursuant to our authority as described in Chapter 403, Florida Statutes: Section 403.121(2)(a) - The Department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the State caused by any violation. The Department may order that the violator pay a specified sum as damages to the State. Judgment for the amount of damages determined by the Department may be entered in any court having jurisdiction thereof and may be enforced as any other judgment. Section 403.141(l) - Whoever commits a violation specified in Section 403.161(1) is liable to the State for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the State and for reasonable costs and expenses of the State in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, - 21 -
waters, and property, including animal, plant, and aquatic life, of the State to their former condition, and furthermore is subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $10,000.00 per offense. The Department is presently assessing monetary damages in this case. These will be incorporated into the body of a forthcoming Department Notice of Violation (NOV). Please be advised that any further violations of effluent standards in the interim will also be assessed in terms of monetary damages and incorporated into the NOV. Should you have any questions regarding this Warning Notice, please direct them to Mr. Eric Medina of this office, telephone 305/689-5800. Sincerely, Richard R. Ries Enforcement Section Head CC: Broward County Environmental Quality Control Board Honorable Robert A. Dressler, Mayor, City of Ft. Lauderdale ****** Apparently, the Florida Department of Environmental Regulation (FDER), the Broward County Environmental Quality Control Board (BCEQCB), Mr. Roberts, and Mayor Dressler, were very concerned about these 523 gross violations of State effluent discharge limits and the resulting environmental damage they would cause to the New River ecosystem, because two months after this notice was issued, as witnessed by my friends and me, a huge brown plume of partially treated sewage was still spewing from Plant A’s outfall on New River. If the FDER had a duty to control and prohibit pollution of air and water in accordance with Florida laws, rules, and regulations, they sure were not doing it. Following their first letter, the Florida Department of Environmental Regulation sent another letter to the City about the effluent coming from Plant B, which is on the other side of town from Plant A. Apparently, no one thought that the problems being experienced by Plant B had any relation to the problems being experienced by Plant A. This second letter follows. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SOUTHEAST FLORIDA DISTRICT Governor P.O. Box 3858 Secretary 3301 GUN CLUB ROAD - 22 Bob Graham, Victoria J. Tschinkel, Roy M. Duke, District Manager
WEST PALM BEACH. FLOFIIDA 33402-3858 August 12, 1983 Mr. Allen B. Roberts, Utilities Director City of Fort Lauderdale Post office Drawer 14250 Fort Lauderdale, Florida 33302 Dear Mr. Roberts: Re: Bioassay of Ft. Lauderdale B Sewage Treatment Plant Effluent This Department recently conducted a bioassay of samples from the treated effluent from your Ft. Lauderdale "B" Treatment Plant to determine compliance with Florida Administrative Code Rule Section 17-3.051. The section states in part, that the minimum criteria for all surface waters of the state at all places and all times shall be free from human induced non-thermal components of discharges, which are acutely toxic to locally occurring wild life or aquatic species. Since there is no allowable mixing zone for the minimum criteria provisions of Section 17-051 (1) F.A.C., discharges must be in compliance at the point of discharge; i.e., prior to dilution in the receiving waters. The report demonstrates that the effluent from your “B” Sewage Treatment Plant contains concentrations of constituents, which are acutely toxic to aquatic species, and identifies specific constituents, which are the probable causes. In addition, the toxicity and concentration of the suspect constituents show an upward trend since the original bioassay conducted in July 1981. We request you initiate the following actions to mitigate the toxic constituents: 1. Investigate all industrial sources, which have the potential for discharging cadmium, lead, mercury, silver, zinc or lindane and take action to insure that these industries have provisions for controlling discharge of metals, pesticides and potentially toxic materials. Please advise your plan and status for this action within 20 days. 2. Carefully monitor and control chlorination dosing for disinfection to insure that the residual chlorine concentration at the point of discharge does not exceed 1.0 mg/l total chlorine residual. Recent tests by the Department indicate that chlorination levels above 1.0 mg/l are toxic in all cases for surface water discharges. Please advise this office, within 20 days as to whether you have the operational capability for chlorination which will insure the 1.0 mg/l total chlorine residual is not exceeded and still be able to achieve the basic level of disinfection as required by F.A.C. Rule Section 17-6.060 (l) (c). The 0.5 minimum residual does not have to be met if compliance with the operational
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fecal coli form criteria in F.A.C. Rule Section 17-6.180 (l) (b) 4. can be maintained. 3. Provide this office with the analysis results of a one-day composite effluent sample for lindane and the heavy metals listed in item #1 above. The sample is to be taken for any 24-hour period during the middle of the week. Request the above analysis results be submitted within 30 days. Your cooperation in complying with the above requested actions and reducing the referenced facility’s effluent toxicity will forestall more stringent action. We will request a new bioassay if the above actions appear to be effective. Sincerely, Oliver P. Board Supervisor Domestic Waste Permitting cc: Broward County Environmental Quality Control Board ****** The above letter is alarming. Furthermore, if the effluent from Plant B was toxic, the possibility existed that the effluent from Plant A was toxic as well. If anything, prudence required that all the City’s treatment plants be tested for toxicity, especially in consideration of the recent spill from Plant A. We are left to wonder if this step was taken. However, no mention is made of Plant A toxicity in the following newspaper article that appeared in the Fort Lauderdale News on December 8, 1983. (This article is reprinted with permission from the Sun-Sentinel, Fort Lauderdale, Florida) Lauderdale must pay restitution for sewage dump By Rochelle Koff, Staff Writer FORT LAUDERDALE - The city must put $73,137 into a state pollution fund for discharging 93,000 pounds of inadequately treated sewage into the New River months ago. "It's not a fine," but restitution to the state for possible environmental damages caused by the City's actions, said Tom Keith, assistant district enforcement officer for the Florida Department of Environmental Regulation. The department issued the City a notice of violation for discharging an excessive amount of solids and sewage, which was not properly Treated at the Northwest 6th Street plant into the North Fork of the New River early this year. In addition to paying damages, the City has been told to conduct a Study to determine what, if any, harm has been. “It didn’t kill the - 24 -
fish, but what it’s done is place a strain upon the canal system," Keith said. "Whether or not there's long term damage we don't know." The City may be refunded part of the $73,137, depending on the results of the study and how much it costs to repair damages done. The City was issued a warning in March, after illegal discharges made in January, February, and March, but the official notice of violation was not issued until Nov. 18. The City stopped using the 6th Street sewage plant in June. The Environmental Department did not move faster because of a stack of more pressing cases. "We've placed a high priority on hazardous waste," said Keith, adding the department has four investigators now handling about 100 cases, "That has to take precedent.” “The violations were due to a number of different things which happened at the same time," said Deputy Utility Director Frank Coulter. During the first three months of 1983, the City had taken over Oakland Park, Wilton Manors waste service at the same time the tourist season peaked, and rainfall was up. The plant was overburdened while a new sewage pumping station was being built. Wastewater is now being pumped to the regional plant at Port Everglades and no more sewage is being discharged into New River, Coulter said. The City has agreed to comply with the environmental department's requests, Coulter said. He expects the study will cost the city about $10,000. "It's not a question of getting us to stop doing something. We've already stopped." The City may have to clean up the river, Coulter said, "or else studies may indicate the river is improving itself.” “It may be no corrective action is needed." ****** I never had access to the results of the study that the City completed to determine “what, if any harm had been done”. I wish that I had because I would love to compare the results of that study to what had been found by Joe King, a Marine Biologist for Broward County, as reported on December 12, 1992, in the SunSentinel. (This article is reprinted with permission from the Sun-Sentinel, Fort Lauderdale, Florida) New river dead where sludge lies By Dana Banker, Staff Writer Tests to see if pollution is worse than thought FORT LAUDERDALE - Joe King peered through his microscope at sewage sludge from the bottom of the North Fork of the New River and was puzzled by what he did not see. King, a Broward County marine biologist expected to see thousands of fly larvae and other organisms that thrive in sewage byproducts. Instead, he saw only three bloodworms - a - 25 -
finding that has county environmental officials wondering whether they have a toxic mess at the bottom of Fort Lauderdale's premier waterway. “It's like the moon - dead, except the three bloodworms,” King said. "That makes me think something's wrong here." King's recent discovery has prompted county environmental regulators to run more tests, as soon as next week to determine how hazardous the sludge is and whether it is killing creatures in the already polluted river. A now closed city sewage plant that pumped into the river during the 1970s and early ‘80s is suspected of creating the problem. The plant, on Sistrunk Boulevard east of Interstate 95, closed in 1983. The city was allowed to pump treated wastewater from a pipe that ran south from the plant and into the river. However, state environmental regulators in the early 1980’s cited the City for pumping out sewage solids too. The City spent $105,000 to dredge up 272,000 pounds of sludge in 1986, but the sludge that contractors failed to dig up has now spread with the tides and stretches west as far as Northwest 22nd Avenue and as far as Northwest 16th Avenue. In some spots, it is five feet thick. The County Office of Natural Resource Protection has been running standard tests on the sludge since summer. Technicians have found high levels of metals, but no pesticides or other organic chemicals. Now, puzzled by the lack of living organisms in the sludge, the office plans to go beyond routine testing. George Riley, director of environmental monitoring, said he hoped next week to begin bioassay tests on the sludge, a new procedure for the office. Technicians will put phosphorescent bacteria in a mix of river water and sludge. A light sensitive machine called a rnicrotox will then record the light emitted from the bacteria. If the bacteria are stressed or killed by the sludge mixture, the light they emit will fade. The procedure is a relatively new one. In environmental circles, labs typically test for various pollutants and measure the levels recorded against those deemed harmful by regulators. This microtox test will provide more of a real-world scenario by showing how organisms actually react to the pollutants, King said. In addition, pollutants may be more harmful in one body of water than they would be in another, dependent upon the water’s original characteristics and how the pollutants interact with it. Because biologists will use water from the New River, the test should give a more accurate picture of what is happening there. The results, however, could be bad news for Fort Lauderdale, which could face an expensive cleanup. ****** Reading this news article left me dumbfounded. In 1983, the FDER ordered the City to conduct a ‘study’ to determine what harm had been done to the New River ecosystem by the sewage dumped into it. This ‘study’ apparently determined that dredging 272,000 pounds of sludge would rectify the problem because that is what the City did under the ‘watchful’ eyes of the FDER and BCEQCB. Yet six years later, we learn not only that most of the sludge is still there but that it is toxic as well.
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In 1983, the Fort Lauderdale News reported that 93,000 pounds of sewage had been dumped. In 1992, the Sun-Sentinel reported that the City dredged up 272,000 pounds of sludge in 1986 that only scratched the surface of the amount actually there. These disparities make one wonder how much sewage was dumped in 1983 and more important, whether 93,000 pounds was a reasonable estimate at the time. Making a definitive comparison in this regard is not easy because the 1983 article does not specify if the reported amount dumped was in wet or dry weight. Furthermore, if the weight was wet, we still do not know the concentration of the sewage. However, by making a few reasonable assumptions, we can still gain insight into the situation. If we assume that the existing sludge blob in the New River is the same concentration as wet sludge from a typical treatment plant. From the news article, we know that this sludge blob is five feet deep in some places and approximately 2,200 feet long. If we assume the sludge blob is a triangular shaped wedge forty feet wide with an average depth of three feet in the center, then our sludge blob is approximately 5,000 cubic yards in size and contains 9,000,000 pounds of wet or 2,000,000 million pounds of dry sludge. This amount of sludge, wet or dry, is a far cry from the 93,000 pounds that authorities first claimed was dumped, but is it a reasonable estimate? In 1983, the City’s primary treatment plant was the G.T. Lohmeyer (GTL) plant located in Port Everglades. At the time, GTL was rated at 24 MGD (million gallons daily). The Plant was permitted to discharge treated effluent into the Port Everglades turning basin and pump sewage sludge to Plant A for Zimpro processing and eventual disposal. Assuming, an actual utilization of 20 MGD, GTL was capable of putting 8,000,000 pounds of wet sludge daily, into New River through its connection to Plant A. In 1983, this arrangement failed and it was untreated sewage from GTL that flowed out of the Plant A outfall. 93,000 pounds of dry sludge is only one-tenth of GTL’s output for one day. The pollution of the New River occurred over a five-month period. Knowing this, to conclude that the total amount dumped was only 93,000 pounds, is absurd. How absurd was demonstrated by Sonny Irons, Chairman of Fort Lauderdale’s Marine Advisory Board, in an article he wrote that appeared in the April 1996, edition of Fort Lauderdale’s Waterway Times. Mr. Irons wrote: “Fort Lauderdale, in particular, because of its 165 miles of unique waterways, has taken a hard look at water quality within its canals and rivers. What we discovered was discouraging. Contaminants of every kind were found to be degrading water quality. Some sources have been clearly identified over the strenuous efforts to conceal them by city government itself. In 1984, a courageous city employee grew tired of the lies and deception, and ‘blew the whistle’ on the City. He pointed to an illegal discharge of mammoth proportions of sewage, hydrocarbons, and heavy metals into the North Fork of the New River by the City from the 6th Street Sewage Treatment Plant. Due to an over-capacity situation, the plant had stopped treatment activities and merely diverted its waste - 27 -
directly into the river for almost ten years. As a result, approximately 70,000 cubic yards of contamination line a mile long stretch of an otherwise pristine area of the North Fork.” If Mr. Irons is correct in his assessment of the amount of sewage polluting New River, then we can conclude that our toxic sludge blob weighs over 15,000,000 pounds and that in 1986, the 272,000 pounds removed by the City to rectify the problem, was only 1.8% of the total amount there. ****** The amount of sewage dumped into New River by the City of Fort Lauderdale during the 1983 pollution incident was massive, especially considering that a portion of the sewage dumped was carried away by the river’s flow. A spill of this magnitude could not have taken place without the knowledge and complicity of many people in the City and the regulatory agencies responsible for preventing such occurrences. If this were not true, I never would have been subjected to the treatment I received from my superiors in the Utilities Department after reporting the situation to the City Manager. Mr. Roberts led me to believe that Connie Hoffmann condoned his actions and her silence confirmed this. From my perspective, she had abandoned me to the mercy of my superiors and they had no inclination to be merciful. On July 19, 1983, feeling alone and under duress, I filed a grievance detailing the events that had transpired since returning from vacation. Three days later, after several conversations with Mr. Jordan and other Department managers, my resolve deserted me and I foolishly agreed to retract my grievance. Understanding that I was going to have to get along with my superiors after I wrote a letter of retraction, I humbled myself and apologized for many of the statements made that they found offensive. I also stated I attributed my actions “to the pressure I have operated under for the past several weeks”. It did not take long for my mistake to become apparent. Upon delivering my letter to Lucky Jordan, he informed me that Mr. Roberts and Mr. Bachman were contemplating further action in the matter. I was shocked by this revelation because I assumed Mr. Jordan had been negotiating in good faith with the concurrence of Mr. Roberts. I asked Mr. Jordan to explain what actions were being contemplated and he declined to explain further. Soon, I was given a letter from Mr. Roberts responding to the points made in my grievance letter that concluded with the following words. “In view of the statements in your letter of withdrawal dated July 22, 1983, regarding a high emotional point in time and the pressures you have operated under for the past several weeks, the Personnel Director has recommended that we request a physical examination for you at City expense to determine whether an undetected problem exists.” - 28 -
These words were devastating and brought me close to having a nervous breakdown. Mr. Roberts was the origin of the pressure I was under and because I capitulated, I am ordered to undergo a physical exam, the purpose of which was to determine if I had an undetected problem. I regret not having the presence of mind to understand their intentions because if I had, my first examination would have concluded the matter. Instead, I walked into Dr. Serrano’s office in a state of intense agitation giving him ample justification to recommend that I undergo further examination by Dr. Charles Kram, Director of the Department of Psychiatry of the University of Miami, Jackson Center. By now, I was convinced I was going to lose my job and fear replaced anger. The day of my session with Dr. Kram, I walked into his office with my hands visibly shaking. Dr. Kram was a congenial and understanding person. Upon recognizing his compassionate manner, I was able to calm down, but still was convinced my fate was sealed. However, I made a point not to say anything negative about my superiors and feigned a positive attitude. Apparently, I was successful because nothing further happened. Several weeks later, I asked Lucky Jordan if I could review my personnel folder to see the results of my exam. He responded that doing so “would be considered a provocative act”. At this point, I was under a great amount of stress and my life was in shambles. As a result, my wife and I separated and this eventually led to our divorce. Following the pollution incident, my enthusiasm for work at Utilities was low. In May of 1984, I summoned the courage to request a meeting with Connie Hoffmann in the hope of transferring elsewhere. Mrs. Hoffmann greeted me in a less than warm fashion and told me that no possibility of promotion or even consideration for promotion existed, because none of my co-workers or superiors had anything good to say about me. She also explained that I was carrying around too much excess baggage and the best advice she could offer was to seek employment elsewhere. My initial reaction to Connie Hoffmann’s words was profound sadness. However, it eventually dawned on me how unfair her statements were. Many of my co-workers in Utilities thought well of me, but in consideration of what had transpired, who would be foolish enough to speak on my behalf? Furthermore, in my work I had occasion to confront employees who, for one reason or another, did not fulfill their professional obligations. Anyone of these people would have been more than willing to cooperate with Mr. Roberts if he wished to discredit me in the eyes of the City Manager. In truth, I owed apologies to no one and believed the citizens of Fort Lauderdale owed me a debt of gratitude. Yet, I was the only injured party in the pollution incident. The irony of my situation was disturbing. Soon my sadness turned to indignation and my wounds began to heal. On June 8th, I wrote the City Manager the following response: Dear Connie: I am taking the liberty of writing in response to our meeting the other day. - 29 -
A good manager manages every aspect of his life. At all times and in all situations, he must act for the well being of the organization he represents and the people in it, despite his personal feelings, opinions, and desires. Furthermore, a good manager must possess the maturity and self-control to cut anything from his life that is a hindrance or keeps him from achieving the goals of the organization he represents. Finally, above all else, he must be trustworthy and loyal. I will always be grateful and in your debt for driving this lesson home. I know I possess the will and inner strength to apply it to my life and have made a commitment to do so. Above all, no matter where I travel or go, I want to be a credit to the City of Ft. Lauderdale and a valued member of its management team. ****** In May of 1985, Lucky Jordon suggested that I fill out a Position Classification Questionnaire (PD-13), a tool used by the City to determine the title, classification, and pay scale of positions. At this point, I was concerned because I was not sure if my position would be upgraded or downgraded. Hoping for the best, I threw myself into the task. Several days latter, I gave the completed questionnaire to Mr. Jordan for his review. He said, it looked fine but told me to run it by Frank Coulter. Mr. Coulter returned the document to me several months later, unchanged. After being reviewed by Mr. Roberts, my PD-13 was forwarded to Personnel. Eventually, effective July 1986, my position was changed from Administrative Assistant to Utilities Financial Administrator. This provided me with a title change and a five percent increase in pay, but no change in management level. At the start of the budget development process in March of 1986, Lucky Jordan instructed me to modify the Department’s organizational chart so that Joyce Hill, supervisor of Personnel and Finance and Bob Malloy, in his capacity as the supervisor of Inventory Control, would report to me. Upon completing the requested modifications, I submitted my work to Lucky Jordan. He approved it and asked me to complete a supplement to my PD-13 that incorporated the revisions made to the organizational chart. It now appeared that my position was going to be upgraded to a higher management level. Overjoyed, I completed this task in less than an hour. The time frame for processing this minor change to my PD-13 paralleled that of the original document. It was not until April of 1987, that I learned that the supervisory responsibilities added to my position, warranted no change in classification or management level because my other duties and responsibilities barely placed me within my present classification, while the added responsibilities solidified that classification. Both phases of the PD-13 process took a combined total of 23 months to complete. My letter to Connie Hoffmann, written after our May 1984, meeting, was written in the hope of achieving a new beginning. I knew I could never recover what I had lost, - 30 -
but believed I deserved a second chance. After meeting with Mr. Roberts in February of 1986, I realized there would never be a second chance. I retracted my grievance following the pollution incident because of the stress and pressure I was under, not because the grievance lacked merit or substance. It was now clear how big that mistake was. I was now convinced that if I did nothing, I would regret it for the rest of my life. I decided to file a grievance and began the extensive task of writing one. When Julius Caesar crossed the Rubicon in 49 B.C., he uttered the words, “The die is cast”. These words reverberated in my mind as I handed Lucky Jordan my grievance document of March 22, 1988. This time there would be no retraction and no turning back.
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Chapter Four My Grievance
According to the Personnel Rules of the City of Fort Lauderdale, “A Grievance is a complaint, a view, or an opinion pertaining to employment conditions, to relationships between an employee and his supervisor or to relationships with other employees”. It is an administrative procedure established, to determine what is right and not who is right for the purpose, of ensuring fair and equitable treatment of non-bargaining unit employees (management) within the city service. My grievance focused upon two main issues: 1. My career with the City of Ft. Lauderdale had been adversely affected by the fact that I reported the pollution of the North Fork of New River by the Utilities Department to the City Manager’s office. 2. As things stood now, if I did not file a grievance I would continue to suffer adverse consequences because of the New River pollution incident. Proving the first statement true would be difficult and proving the second one true was impossible. I understood the uphill battle I faced and realized that I could never change the past by filing a grievance. However, my hope was to change the future. Establishing the validity of my first point centered upon the circumstances surrounding the creation of the Process & Information Control Division within Utilities and how Robert Nielsen became its manager. When the Process & Information Control Division was created in 1986, Mr. Roberts directed Robert Nielsen, Process Control Engineer to be its manager. After several months, a PD-13 was executed the results of which established Mr. Nielsen as Process & Information Control Manager. A key point of my grievance was that at the time Mr. Nielsen was appointed to be acting Division Manager of the Process & Information Control Division, I was far more qualified to manage this Division than he was. A cursory review of our credentials, I believe establishes this as being true. A summary of our professional qualifications, at the time, follows: Robert Nielsen Education: 1. Bachelor of Electrical Engineering, Georgia Tech University - 32 -
Experience: 1. 2. 3. 4. Cook - McDonalds Restaurant Municipal Maintenance Worker III - Ft. Lauderdale Utilities Electronics Technician - Ft. Lauderdale Utilities Process Control Engineer - Ft. Lauderdale Utilities
Alan Adaschik Education: 1. Bachelor of Aerospace Engineering - University of Michigan 2. Master of Business Administration - Long Island University 3. Advanced Accounting - University of Hartford Experience: 1. Commissioned Officer - United States Navy 2. Fighter Pilot - United States Navy 3. Classified Material Control Officer - United States Navy 4. Squadron Flight Officer - United States Navy 5. Assistant Administrative Officer - United States Navy 6. Flight Test Engineer - Grumman Aerospace Corporation 7. Flight Test Conductor - Grumman Aerospace Corporation 8. Financial Analyst, The Singer Company 9. Senior Financial Analyst - Pratt & Whitney Aircraft 10. Owner/Founder/President - The Gym, Inc. 11. Director of Operations - The Gym, Inc. 12. Gymnastics Coach - The Gym, Inc. 13. State Reporter - International Gymnast Magazine 14. Administrative Assistant II - Ft. Lauderdale Utilities 15. Financial Administrator - Ft. Lauderdale Utilities 16. Treasurer - Mamas & Papas of Broward County 17. Director - Riverside Park Residents’ Association (RPRA) 18. Vice-Chairman - RPRA Ways & Means Committee In addition to claiming that I was unfairly denied consideration to be Division Manager of the Process & Information Control Division, I also maintained that the Division’s creation was a costly boondoggle. To substantiate this claim, I offered the following analysis completed by me prior to executing my grievance and submitted to the City’s Employee Suggestion Program.
PROCESS CONTROL IN UTILITIES OPERATIONS There are two types of process control utilized in water and wastewater operations; closed loop and open loop process control. In open loop process control, micro-computers monitor - 33 -
plant equipment and feed information to a central computer where an operator controls the process. In this system, the operator is essential to the plant’s operation. Closed loop process control, on the other hand, is more sophisticated. In this type of system, the computer is capable of monitoring and modifying the treatment process through a feedback loop. This eliminates the need for an operator’s active participation in a plant’s operation. It is possible to design a closed loop, process control system that runs an entire plant without operator intervention. No industry professional advocates this for our larger and more sophisticated treatment plants, but fully automated and unmanned processing plants are used in certain situations. The City of Orlando, Florida, has a total of nine water treatment facilities capable of producing 133 million gallons of potable water daily that are unmanned and operated by remote control. The raw water available to Orlando is of a high quality allowing for minimal treatment and remote control operation. As a result, Orlando runs its nine treatment plants with a staff of 22 people, including maintenance and supervisory personnel, on a budget of less than 3 million dollars yearly. In comparison, the City of Fort Lauderdale processes 90 million gallons of water daily utilizing a staff of 55 employees with a yearly operating budget of approximately 6.5 million dollars. It is important to understand some fundamentals about the water and wastewater treatment processes. Although wastewater treatment is more complex than water treatment, both processes are simple and not critical. A process is not critical if input variables can vary significantly while still producing a product of acceptable quality. The treatment of water and wastewater is complex only when faced with the large volumes of fluids processed by a city the size of Fort Lauderdale. Because of spending limitations, most municipalities are concerned with product quality only to the point where compliance with regulatory guidelines is achieved. Process control will not improve product quality because of the uncritical nature of the treatment process. Therefore, the desire to improve treatment quality is not a justification for automating treatment plants. The reason we spend large sums of money on automating treatment plants is to realize a return on our investment and the only place this return can be realized is in labor cost savings. The number of operators needed to run a manually operated plant is not linear to plant size over a large range of treatment capacities and a properly designed automated water or wastewater plant requires only one operator in attendance no matter how large the plant. However, in larger water and wastewater treatment plants, it is accepted industry practice to have two operators per shift, one serving as a backup to the other. The City of Ft. Lauderdale is in the final phases of installing a process control system in its three treatment plants; the Fiveash Regional Water Treatment Plant (Fiveash), the Peele Dixie Water Treatment Plant and the George T. Lohmeyer Regional Wastewater Treatment Plant (GTL). Complicating the understanding of what is happening at Fiveash and GTL is the fact these plants were regionalized concurrent with incorporation of process control. Regionalization occurs when a plant, instead of just serving the citizens who own it, offers - 34 -
its treatment services to other surrounding communities called “large users”. These large users tie into a plant’s collection or distribution system, through a main that is metered for billing purposes. While serving large users requires minor modification to the collection or distribution system, as far as the plant is concerned, nothing has changed other than the increased volume of fluid processed. "Regionalization" then, is a word that bears no relationship to a plant’s operation and it is not justified to upgrade the pay scale of plant personnel just because a plant has been regionalized. Since the start of the installation of process control within the City's treatment plants, Fiveash has increased its staff by 7 employees and GTL has increased its staff by 4 employees. Furthermore, a new Process and Information Control Division has been created that added 8 new employees to the system. At the point of inception, the Utilities Department will spend $600,000/year to operate its process control system while plantoperating costs have increased by approximately $400,000 yearly. Thus, the cost of regionalization concurrent with the advent of process control is costing Fort Lauderdale approximately $1,000,000 yearly. Is this expenditure justified? The decision to install a process control system in a plant should be based upon an expected return obtained from reductions in staffing. With the introduction of process control, plant maintenance requirements increase because of added equipment. Therefore, staffing reductions can only be made from plant operating personnel and should offset added maintenance and process control costs. Before the installation of process control, two operators were used to operate our treatment plants. After the installation of process control, a Chief Operator was added to each shift increasing staffing from two to three employees. If single operator per shift staffing is possible in our treatment plants, the City will save approximately $750,000 per year in personnel costs. If two operators per shift are desired the potential savings drop to approximately $370,000. After the installation of process control, a mechanic was added to the workforce at GTL and two Electricians and one Diesel Technician was added to Fiveash. Why does GTL need an additional mechanic who does not maintain process control equipment? Electricians maintain process control equipment, but why are two being added to Fiveash and none to GTL? Furthermore, are these four positions needed at all? The Electro technology Activity of the Utilities Department’s has a staff of 13 Electricians. Couldn’t they fulfill the needs of both Fiveash and GTL? This same question can be asked about the added Diesel Technician at Fiveash. How many diesel motors are there, how often do they require repair, and could this work be accomplished by the two Diesel Technicians assigned to the machine shop? The potential savings here are $35,000 to $106,000 per year. The Utilities Department has chosen to tie its three treatment plants together into a mainframe, process control computer located in the Utilities Administration building. It is not necessary or cost effective to do this. What is gained by having a remote computer monitor the operation of two water and one wastewater treatment plant? The cost of this computer is approximately $7 million and this computer is manned twenty-four hours daily using five Process Control Operators. Why does a computer that stores data for report generation need to be manned continuously? If these functions were performed at the plants - 35 -
using their computers, we could eliminate the $7 million computer and save $200,000 yearly in salaries. Technology is a blessing because it allows man to be efficient and do things that were formerly not possible. Technology for technologies sake without intelligently evaluating alternatives can be a costly mistake. In the Public Service, we have an obligation to spend taxpayer money wisely. Large sums have been wasted on purchasing a process control system not suited to the operational needs of the Utilities Department. This mistake is being compounded by the way this system and our plants are being staffed and operated. It is estimated that $600,000 to $1,050,000 per year can be saved, without adversely affecting operations, by staffing our system and plants in a cost effective manner.
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The Grievance Process
On March 23, 1988, I walked into Lucky Jordan’s office and laid my grievance document on his desk. He looked at it and said, “What’s that?” I told him it was my grievance and a look of disgust came over him. He then became irritated and blurted out, “I know how to take care of you”. I asked him to explain his statement and he refused. After reviewing my grievance, Lucky Jordan concluded that the events described therein were distorted. He maintained that my allegations were divisive, selfserving, and based upon conjecture. For these reasons, he denied my grievance and I appealed his decision to Mr. Roberts who reached the same conclusions and added, “the decision to create the Process & Information Control Division was made after considerable review and analysis at all levels”. In my response to Mr. Roberts’ grievance letter, appealing his decision to the City Manager, I requested copies of the documents associated with the analysis he mentioned. None existed. An entire Division was created within the City of Fort Lauderdale Utilities Department, millions of dollars had been spent on computers, and equipment for that Division, yet not one shred of paper existed that justified this course of action. Upon receiving my grievance, Connie Hoffmann asked Assistant City Manager Phil Greene to provide a response for her. Mr. Greene endorsed Mr. Roberts’ position. I appealed Mr. Greene’s decision to the Civil Service Board in the following letter to John Panoch. Rule XI, Section 9, Paragraph A, of the City of Ft. Lauderdale Personnel Rules, states that any employee who claims that a personnel rule or rules have been improperly applied or misinterpreted, to the employee's detriment, may appeal to the Civil Service Board within thirty days after such action is taken. On March 23, 1988, I filed a grievance with my supervisor, Jarrett T. Jordan. Mr. Jordan denied my grievance without discussion. Next, I appealed to Allen Roberts and he denied my grievance without discussion. I then appealed to Connie Hoffmann and my grievance was denied by her designee, Phil Greene, again without discussion. This last denial was issued despite written appeals from both my attorney and me for a meeting to discuss my grievance. My letter offered additional supporting evidence and stated that more information was available. While it is the City Manager's prerogative, under the grievance procedure to affirm, deny, or modify the decision of a Department Head, considering the nature of my - 37 -
grievance, its implications and the allegations raised, I do not think that the City Manager's response was in keeping with the spirit and intent of the Grievance Procedure as stated in the Personnel Rules. At the very least, Ms. Hoffmann should have initiated an investigation of my accusations to determine their validity and based her decision on the facts. Furthermore, her denial should have included the reasons for her decision. I do not believe that the City Manager made a reasonable attempt to determine what is right in this matter. Nor do I believe that my complaint has been considered fairly by anyone. I believe Ms. Hoffmann has arbitrarily sided with Mr. Roberts in this matter and doing so, has improperly applied or misinterpreted the Personnel Rules to my detriment. Therefore, I wish to appeal the decision and action of the City Manager, in regard to my grievance, to the Civil Service Board. Article VI, Section 6.01, of the City Charter, establishes a Civil Service System of personnel administration based on merit principles and scientific methods governing the appointment and promotion of its officers and employees. The City Charter goes on to state that the Civil Service System will be based upon principles that provide for selection and advancement on the basis of relative ability, knowledge, and skill under fair and open competition. In my opinion, the decision by Mr. Roberts directing Robert Nielsen, to work outside his job class specifications, is in violation of the City Charter, demonstrating his intention to deny me consideration for advancement, despite my qualifications. The motive for Mr. Roberts’ actions is clearly depicted within my grievance. Plant A had failed and was dumping raw and partially treated sewage into the North Fork of New River. The Utilities Department had not made the City Manager aware of the extent of this problem and did nothing to stop the dumping until Richard Yost, Jay Ferry, and I took action. This proved to be an embarrassment to the Department and its Directors. Mr. Roberts' intentions toward me are documented in my grievance. The treatment I received upon returning from vacation from Mr. Jordan, Mr. Bachman, and him, in my opinion, constituted personally offensive and abusive conduct by a city official acting in an official capacity; a violation of the Personnel Rules. The stress I experienced because of their actions drove me close to a nervous breakdown and contributed to the breakup of my marriage. Unable to bear the pressure I was under, I lost my resolve to fight and resigned to redeem myself through diligence and hard work. For four years, I have swallowed my pride and kept silent, to no avail. I now believe I am a marked man within the City who, despite having been given a token promotion, is still being unfairly treated because of the pollution incident that occurred over four years ago. The mechanism for my advancement is readily available, yet Mr. Roberts will do nothing in this regard. Bob Nielsen was appointed to the position of Process Control Engineer on April 10, 1983, just prior to the pollution incident. The Process & Information Control Division - 38 -
officially came into existence concurrent with the start of Fiscal Year 1984/85. At the time, the most logical choice for Acting Division Manager of this new Division was yours truly, because no one within Utilities could match my education and experience. On the other hand, at the time, Mr. Nielsen was not qualified to be a Division Manager because he possessed no supervisory experience. I believe it incumbent upon Mr. Roberts to explain to the Civil Service Board the merit principles and scientific methods used to choose Mr. Nielsen over me as the Acting Division Manager of the Process & Informational Control Division. Furthermore, I believe Mr. Roberts should explain to the Civil Service Board the reasons I was not chosen to manage this Division. Finally, I would like Mr. Roberts to explain how the method he is using to groom Robert Nielsen to manage the Process & Informational Control Division will impact my chances of being selected for that position on the basis of ability, knowledge, and skill within a fair and open competitive environment when the position is officially created. It is my belief that the method being used to groom Mr. Nielsen to be Division Manager of the Process & Informational Control Division is in violation of the City Charter and furthermore, if this appeal were not filed, the situation would develop such that I will not be given the opportunity of being considered for the position. There is more to the selection of Mr. Robert Nielsen over myself to head the Process & Informational Control Division than just the issue of who is more qualified. In my Grievance, I demonstrate that large sums of money have been wasted and will be wasted because of the way our Process Control System is designed and managed. How the City Manager can ignore this revelation and reject it out of hand without an investigation is beyond comprehension. In conclusion, I am a hard working, honest, and highly qualified employee whose education, experience, and background are such that I would be a preferred candidate for advancement in any organization. However, in Fort Lauderdale and within the Utilities Department in particular, my career is at a standstill. My situation is in sharp contrast to an individual who, in my opinion, is less qualified than me to fulfill the duties and responsibilities of the position he holds. The question that must be answered is how and why this state of affairs came about. It is my conviction that when this question is answered, it will demonstrate my rights under the City Charter and the Civil Service System have been grievously violated. I look to the Civil Service Board for redress in this matter. ****** While my grievance and associated appeal to the Civil Service Board were in progress, a lot was happening back at Utilities as described in the following memorandum I wrote to Mr. Roberts. On Friday morning, I met with the Personnel Manager to discuss my new problems and complaints. He advised me to discuss them with my supervisor. - 39 -
Upon hearing my complaints, Lucky Jordan denied my grievance and did not attempt to reach a mutually equitable decision in the matter. Mr. Jordan's resolution of my new grievance was not satisfactory; therefore, I am appealing my new grievance to you. On May 18, 1988, I entered the 2nd floor Conference Room to attend your weekly staff meeting. Upon sitting down, Rose Klarmen informed me that I was not invited to this meeting. Shocked, I thanked her and left the room. After the meeting, Ms. Klarmen informed me that the reason I was no longer invited to attend staff meetings was because you have decided to hold a weekly Managers meeting instead of a staff meeting. Therefore, eliminating me from attending your meetings, since I am not a Department Manager. The justification you gave me for your decision, that the meeting capacity is such, that the meeting cannot be carried on properly, belies the fact that seating is available at the conference table for all concerned. I find these developments disturbing. If you had decided to bar me from your staff meetings, I think I should have heard about this decision from you personally prior to the meeting. The manner in which I was informed that my presence not wanted was inconsiderate and in my opinion, calculated to be provocative. Furthermore, as the Department’s chief financial officer, proper execution of my duties and responsibilities necessitate that I have direct input into the Department's decision processes. The 2nd floor of the Utilities Administration Building is presently being remodeled to accommodate a newly hired Sanitary Engineer. My office will be given to this individual so he can work close to Frank Coulter, his supervisor and Deputy Utilities Director. My new office will be in a space presently occupied by Betty Fogaras, Clerical Secretary to Mr. Jordan. It will have two doors, one with direct access to Mr. Jordan’s office, and have no outside windows. It will also be the smallest office on the second floor. I have been told by Mr. Coulter and Mr. Jordan that my removal from your staff meetings and the loss of my private office, were decisions that came about from sound management principles in the best interest of the Department and City. In my opinion, these actions are a direct result of my filing a grievance and are in retaliation for that grievance. If this is true, then you are in violation of the Personnel Rule that states it is city policy for grievances to be considered fairly and without reprisal. My proposed solution to this situation is to cease modifications, leave me in my present office and allow me to return to the Department Staff meetings. My Job Class Specifications state that I am responsible for supervising Department recruiting methods and for administering the Department's Personnel Activity. In this capacity, I should have been involved in the hiring process of the Sanitary Engineer. I was not. This position was processed and filled, according to Joyce Hill, supervisor of personnel, by Mr. Coulter without her knowledge or the participation of her staff. This
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procedure used by Mr. Coulter is contrary to standard procedures and in disregard of my job class specifications. In the personnel requisition filed by Mr. Coulter for the position of Sanitary Engineer, it states that the position will assist the Deputy Director in areas involving technical engineering work. The requisition goes on to state that the incumbent will develop and prepare methods to increase productivity and cost efficiency in each major area of the Department as they relate to overall operations. The incumbent will develop equipment specifications, draft reports concerning changes to operations and analyze the impact of these changes. The incumbent will complete work-time studies, review the work order system as well as other data processing programs and review the budget to reduce operating costs. The above responsibilities, typically in most organizations, are assigned to a support function as opposed to line operations because this arrangement minimizes conflicts of interest. Furthermore, examination of my job class specifications reveals that almost all the duties of the Sanitary Engineer fall within my area of responsibility. Therefore, the Sanitary Engineer should report to me instead of Mr. Coulter. I try not to take work related issues personally, but recent events have left me concerned. As Financial Administrator of the Utilities Department, I am being displaced from my office, into a smaller and far less desirable office, by an entry level Sanitary Engineer who should rightfully report to me. This being true, I am forced to conclude I am being punished for executing a grievance in violation of the Personnel Rules. ****** Meanwhile, a snag developed in my appeal to the Civil Service Board as described in the following letter to John Panoch. Upon the request of the City Attorney's office, you have delivered my grievance and appeal to Kenneth Mikos, Civil Service Board Attorney, and requested an opinion as to whether or not my appeal should be heard by the Civil Service Board. I find this disturbing. You made your request to Mr. Mikos in your capacity of the City’s Personnel Manager and not as Secretary to the Civil Service Board. This point is emphasized in your letter where you state that the City is of the opinion that this appeal should not be heard and by the fact that the initiator of the request was the Deputy City Attorney, Tom Ansbro. It is clear that the City believes that my appeal should not be heard by the Civil Service Board. It is also clear that the City has retained Mr. Mikos to render an opinion in this regard to bolster their case. Therefore, what is happening is, the City is appealing to the Civil Service Board to, not hear my appeal. The Personnel Rules do not apply to this procedure and it is unnecessarily delaying my appeal. Therefore, in my opinion, the City is improperly applying and misinterpreting, to my detriment, the Personnel - 41 -
Rule that states that a regular employee requesting an appeal shall be granted a hearing at the earliest practicable date. The Personnel Rules do not provide for the City to be involved in the process of determining whether my appeal should be heard or not. Nor do they give the City the right to delay my appeal while it waits for an opinion from its attorney. Neither the City nor I are on trial here. I am an employee who believes the Personnel Rules are being misapplied and misinterpreted to my detriment. The Personnel Rules clearly state that, under these circumstances, I am entitled to an appeal hearing. If the City believes I have no grounds for an appeal, let the City make its case at my hearing. The Civil Service Board alone has the authority to judge the merits of my appeal and determine whether it was executed properly. In conclusion, by retaining an attorney to bolster their contention that my appeal was not executed properly, the City is attempting to deny me my right to a hearing before the Civil Service Board and, in my opinion, is misapplying and misinterpreting the Personnel Rules to my detriment. ****** Meanwhile, my superiors were in turn, increasing the pressure I was under as described by my letter to Lucky Jordan, which follows. On June 17, 1988 — I met with you in your office and was told the following: 1. In your opinion, I was unfit to be a Public Servant. 2. You suggested that I could consider myself relieved of the position as the chief financial officer of the Utilities Department. 3. Your best advice for me was to find a job elsewhere, as soon as possible and take anything offered even if it was not a position I desired for the long term. A grievance is a complaint, a view, or an opinion pertaining to employment conditions to relationships between an employee and his supervisor or to relationships with other employees. Based upon your remarks, it is obvious I have a justifiable grievance with you. Because of the serious implications of your comments and the fact that I consider them inappropriate, incorrect, inflammatory, degrading, offensive, abusive, and in violation of the Personnel Rules, I request the following: 1. You explain to me in writing exactly why I am unfit to be a Public Servant. 2. You explain to me in writing why you do not consider me the chief financial officer of the Utilities Department.
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3. You explain to me in writing how you expect me to find a decent position elsewhere if your opinions of me are held by my superiors within the City and the Utilities Department. Subsequent to filing my grievance of March 22, 1988, you directed me not to use any of the Department's office equipment and supplies to process my grievance and its associated appeals. Despite the hardship this has placed upon me, I have followed your instructions, even though under the circumstances, I believe them to be a violation of the Personnel Rules. All my work on my grievances and appeals is done on my own time and typed at home on my own equipment. Despite my attempts to follow your direction and instructions, Mr. Coulter and you claim I am wasting significant amounts of City time by discussing my complaints and problems with you and him. This is ironical because, in my opinion, Mr. Roberts, Mr. Coulter, and you spend hours of City time scheming how to violate my rights and then criticize me because I take some time to try and rectify the problems created by the three of you. In my opinion, Mr. Roberts, Mr. Coulter, and you are attempting to label me a troublemaker and chronic complainer who is disrupting the routines of the Utilities Department. For example, after moving into my new office on Friday, I took photographs to document that it is inadequate for my needs. Subsequent to taking these photographs, which took approximately five minutes to accomplish, Mr. Coulter claimed that I spent the entire afternoon photographing the second floor of the Utilities Department. Then, on Monday afternoon, Mr. Coulter approached me for the sole purpose of determining if the rumors were true that I was using City time for personal reasons, i.e. photographing my office. You have said I am unfit for Public Service. I presume you hold this opinion because I reported the pollution of the North Fork of New River to the City Manager's Office and now seeking redress under the Personnel Rules. I find it ironic that you label me an unfit Public Servant for answering a call to higher duty where I put the public interest above my own. You are my Supervisor and as such have a responsibility to protect my best interests and treat me fairly. In my opinion, out of misplaced loyalty to Mr. Roberts, you have instead, assisted him in his attempts to control, suppress and threaten free discourse on matters of public concern, also to ruin my career within the City. I believe I am being harassed by Mr. Coulter and you on behalf of Mr. Roberts to force me to quit or to cause me to commit an intemperate act so I would be fired. If this is true, then Mr. Coulter, Mr. Roberts, and you are in serious and flagrant violation of a multitude of Personnel Rules. ****** As if to provide an element of comic relief to all of this, on June 13, 1988, I received the following memorandum from John Panoch. Pursuant to Personnel Rule XI, Section 10, D, 2, I have reviewed your grievance and do not, in any obvious fashion find that the grievance is subject to established ordinances, administrative regulations or the Personnel Rules. - 43 -
Upon receipt of this notice, Mr. Allen Roberts, Utilities Director, has the responsibility for responding to this grievance and shall inform you in writing of his decision within five (5) working days. ****** At this point, concerned that no one had responded to my article about process control and its associated recommendations, I wrote the following memorandum to Connie Hoffmann. This time I copied the City Commission, which is a risky step because of city policy prohibitions against employees approaching the Commission directly. This memorandum is not a grievance or an appeal. It should not be mistaken for either of these administrative procedures. This report is being made to City Management and is being executed in keeping with the duties and responsibilities as set forth in my official job class specifications, which in part are: 1. To consult with, advise, and assist department officials regarding funding requests, the fiscal and operational ramifications of proposals and cost cutting alternatives. 2. To supervise department recruiting methods and application considerations. 3. To coordinate and recommend changes regarding operational policies and expenditures. 4. To evaluate recommend, and coordinate improvements to management control systems, productivity, work methods, policies, and programs through factfinding interviews, observations, and research. The substance and content of this report, in turn, has previously been made known to my Supervisor, the Utilities Director and to you. The reason I am reissuing this information is because I have not received a response to any of my recommendations. Furthermore, it appears that an additional Assistant Process Engineer is about to be approved for the Process & Information Control Division. In my opinion, this position is not needed or justified. Therefore, be advised of the following: 1. The Process Control System within Utilities, as presently staffed and configured, is needlessly wasting large amounts of operating funds. While an exact total of the amounts being wasted remain to be determined, a conservative estimate is that they exceed one million dollars yearly.
2. The Process Control Center in the Utilities Administration Building is over staffed and thus contributing seriously to the waste of money cited above.
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3. Either our Treatment Plants have been over staffed or our Process Control System, which cost millions of dollars to purchase and install, is not performing as expected. 4. There never was a cost justifiable reason for creating a Process Control Center in the Utilities Administration Building. 5. The need for a separate division to operate the Process Control System is doubtful and has not been justified from an operational or an administrative point of view. The attached article "Process Control in Utilities Operations", written by me, provides sufficient justification for the validity of most of the above statements. However, an independent study is necessary to determine the true extent of the problem. Due to the nature of the problem and its serious implications, this study should be conducted by consultants external to the City to preclude conflicts of interest. Prior to deciding upon an approach to solve this problem I believe it imperative for all the principles involved to meet and examine our options. I am looking forward to hearing from you in the near future. ****** After writing the above letter, Mr. Roberts responded to my previous grievance letter as follows. This is in response to your recent grievance filed on June 6, 1988. 1. Department Head Staff Meetings - As a department head, I have discretion to determine who should attend staff meetings to maximize the productivity of the meetings. In most, if not all organizations, a Department Director is able to organize such meetings without challenge from a staff employee. Since your supervisor attends the meetings, any information you need will be passed on through him. Other employees below the Division Head level have also been excluded; therefore, you have not been singled out. As a bottom line, I believe that your time can be better spent performing the job functions of your position. 2. Office Renovations On The Second Floor - Your office and other offices on the second floor were relocated and renovated to accommodate reporting relationships, job functions, and to provide for cross coverage among support staff. Since the Sanitary Engineer will report directly to Mr. Coulter, it is logical that the position be located in close proximity to him. Since you report to Mr. Jordan, your location next to his office makes good sense. Other structural changes will allow Betty and Elaine to provide cross coverage for an important support function to these two offices. In essence, renovations and re-locations within our Department were designed logistically, to coordinate the location of various employees in relation to their work functions. It has been necessary - 45 -
on numerous occasions over the past 30 years to renovate and relocate offices to meet the changing needs of the Department. I have reviewed your suggestions and I prefer to adopt the plans presently under consideration. 3. Reporting Relationships Of The Sanitary Engineer - It is my decision, in conjunction with input from Mr. Coulter and Mr. Jordan, that the Sanitary Engineer report directly to the Deputy Utilities Director. I believe the job responsibilities of this position are a line function and the correct reporting relationship should be to Mr. Coulter to reflect the important nature of the job responsibilities. Contrary to statements in your grievance regarding the hiring of a Sanitary Engineer, you do not have the responsibility or the authority to participate in this decision. Because I believe that, your complaints lack merit and border on a challenge to my authority as Utilities Director, your grievance is denied. In summary, I view your June 6, 1988, memo as a continuing series of petty gripes and complaints, rather than a substantive presentation of issues, which rise to the level of a bona fide grievance. ****** I responded to Mr. Roberts as follows: In contrast to my opinion, that you probably have not read my job class specifications, I have carefully studied yours and I understand the duties and responsibilities of your office. I also believe I understand the "authority" inherent with your office. However, I also understand the limits of your authority and the great responsibility that, by necessity, accompanies that authority. This, in my opinion, is not understood by you. Furthermore, I also believe you do not understand the purpose and intent of the Personnel Rules. By way of example, suppose we have a box that is white and one day, to increase department efficiency, you declare the box to be black. You have the authority to make this declaration, but also have the responsibility not to because the box is really white. If the consequences of your declaration were of no importance, it could be argued that out of respect, duty, or loyalty, your subordinates should follow your lead and declare the box black. However, by doing so, they would be compromising themselves and sacrificing a measure of integrity. On the other hand, if the consequences of your declaration were of great import, your subordinates have a duty to speak up and point out the error of your declaration. By doing so, they are not being disloyal and challenging your authority. Instead, they are following the dictates of their conscience and being the kind of employees that any city needs and should want. By filing a grievance, I am not challenging your authority. Instead, I am exercising my rights under the Personnel Rules. As a responsible City official, you should welcome and encourage this, not condemn and attempt to suppress my actions. My second grievance is not a continuing series of petty gripes and complaints. Both my grievances claim serious violations of the Personnel Rules, the City Charter, and the possibility that, as Utilities - 46 -
Director, you are working in contradiction to your job class specifications. Do you really consider complaints of this nature petty? If the so called "petty gripes and complaints" detailed in my second grievance are true, you are in flagrant violation of the Personnel Rules. Therefore, you are not in a position to judge them impartially. I will now respond to the three points made in your memo. 1. Department Head Staff Meetings - I am the Financial Administrator of the Utilities Department and as such, I am the Department's chief financial officer. Examination of my job class specifications reveals that I am responsible for supervising a multitude of high-level administrative and financial functions, which necessitate my being in attendance at your staff meetings. Prior to executing my first appeal to the Civil Service Board, I was allowed to attend. In your alleged efforts to improve the efficiency of the meetings, I was the only one excluded. Therefore, I have been singled out. Ironically, it is a matter of record that I, more than any other individual under your employ, have saved the City thousands of dollars in unnecessary expenditures over the past several years. Have I made a negative contribution to the productivity of your staff meetings? Of course, not, the contrary can be demonstrated to be the case. Therefore, I believe you are trying to hide the real reason for my exclusion, which is because I exercised my rights under the Personnel Rules. 2. Office Renovations On The Second Floor - I know of no organization that would allow a higher-level manager to be displaced from his office so a lower level manager can be closer to the individual he reports to. This is especially true in the light of the fact that I am being displaced into an office that is inadequate for my needs and is smaller than the office being given to the Sanitary Engineer. Where is the logic and functional need to have the Sanitary Engineer immediately accessible to Mr. Coulter as opposed to being located elsewhere on the second floor? Furthermore, why all of a sudden, after having my own separate office for the past four years, is it necessary to place me in a secretarial cubbyhole immediately adjacent to Mr. Jordan? If I must be displaced from my office, common courtesy and organizational decorum dictate that I be allowed to choose any other available office. I have been given no such choice even though one exists. Instead, I have been directed to occupy the least desirable office on the second floor to be more accessible to Mr. Jordan. I am neither Mr. Jordan’s assistant nor his aide. In fulfilling my duties and responsibilities, I do not meet with Mr. Jordan on a daily or even a weekly basis and he does not need me near him, much less require a door from his office directly into my office. You have gone on record as stating that in the best interest of the Department, I am reassigning you from the trailer to a desk in the clerical section at the Administration Building. This action, in my opinion, was in retaliation for the role I played in the New River Pollution incident. After protesting the move, it never happened. In my opinion, because I have initiated a grievance, you have reinstated this retaliatory action. 3. Reporting Relations of The Sanitary Engineer - I never claimed that I had the authority to decide who would be hired as the Sanitary Engineer. However, I did claim that I was - 47 -
responsible for supervising the process of hiring this employee. My job class specifications state that I am responsible for supervising department recruiting methods and application considerations. The hiring process for the Sanitary Engineer was not supervised by my staff or me but was accomplished in secret by Mr. Coulter. Efficiency of operation and sound organizational doctrine require that individuals with similar responsibilities work in the same organizational unit. The Sanitary Engineer's primary responsibilities fall within the duties listed in my job class specifications. Thus, he should report to me. Subsequent to being informed by Mr. Coulter that, for the good of the Utilities Department, I would be forced to work in secretarial cubbyhole, I requested that if I must do so, then at least eliminate the second door to Mr. Jordan's office and eliminate the window to the common hallway. Mr. Coulter denied my request to eliminate the door, but agreed to remove the window. On Friday, I arrived at work and found workers ready to move me into my new office, which still had a hallway window and was missing a door for the hallway entrance. When I complained to Mr. Coulter about this situation, he explained that the door is backordered and he wanted to try things this way for a while so that they can be evaluated. Like it or not, my office is my office and I believe that I should have a right to decide if I want a second door or a hallway window. In my opinion, this situation and Mr. Coulter's disregard of my wishes is further substantiation that, contrary to the Personnel Rules, I am being punished for filing a grievance. In conclusion, I find your disposition of my grievance to be unsatisfactory and request that you refer it to the City Manager for consideration. ****** Hoping to take the edge off the situation, I wrote Connie Hoffmann and offered the following. I am writing this memorandum after consultation with and upon the suggestion of the Personnel Manager. Mr. Roberts is on vacation and will not return until July. Therefore, you will not have time to discuss my 2nd grievance with him nor will he have sufficient time to consider my 3rd grievance upon his return if the prescribed grievance timetables are in observance. In recognition of these circumstances, I suggest and am willing to place the two pending grievances on hold until Mr. Roberts returns so he will have time to give them proper consideration. Examination of my three grievances reveals they are related and symptomatic of one overriding problem. This being so, it is reasonable to consider them together as a group. It is my wish that when and if my grievances come before an appropriate ruling body they be considered together.
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Upon the suggestion of and with the concurrence of Mr. Panoch, I appeal to you for immediate relief in regard to the harassment that I am presently experiencing and is documented in my 2nd and 3rd grievances. I am appealing to you because Mr. Roberts is on vacation and is unable to address this situation. Let me state for the record that it is not my desire or wish to bypass any official documented grievance procedures, but make this request because I believe the circumstances warrant it. I hope that after discussing this matter with Mr. Panoch, you will intervene and provide me with relief. It is rumored throughout the City that my intentions are to initiate a lawsuit over this matter. I find these rumors distressing because that is not the case. I have taken the actions I have for only three reasons, to regain my self-respect, to restore my reputation, and to achieve proper redress under the Personnel Rules. I cannot live with nor tolerate the present circumstances of my career within the City. These circumstances, in my opinion, have been engineered by my superiors in the Utilities Department without just cause. I never expected the demands made in my first grievance to be honored in their entirety. These demands were made to emphasize the seriousness of the situation and the fact that some type of redress was warranted. I desire a negotiated settlement and am willing to accept anything that is reasonable and fair. However, I do believe events are beginning to have a momentum of their own and if not checked, will proceed in a manner that is not in the best interest of anybody. It is my sincere hope that this matter will be settled in the near future to the best interest of the City and to those involved. ****** This last letter seemed to turn a corner. The harassment I was experiencing abated and a date was set for my appeal to the Civil Service Board. At my hearing, the Civil Service Board suggested that instead of ruling on my appeals, we retrench and allow Connie Hoffmann to convene a Grievance Committee to look into the matter, which is what should have occurred in the first place. Having gone on record as saying that I wished to achieve a negotiated settlement, it was incumbent upon me to accept the Board’s recommendation.
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Chapter Six The Grievance Committee
The Civil Service Board established my right to Grievance Committee review, a pyrrhic victory at best. The Committee was composed of three people and I had the option of representing myself or having someone else represent me. Mr. Roberts had the same options. A third person, chosen by mutual agreement would Chair the Committee. If agreement could not be reached, then the Personnel Manager would choose the Chairman. Under the circumstance and considering the nature of my grievance, I reasoned that Mr. Panoch would never allow anyone but a city employee to serve as Chairman, so this narrowed my search considerably. Eventually, we agreed that Dick Brossard, Public Works Director, would be serving in this capacity. I had worked with Dick in the past and was impressed by his professional demeanor. I also talked to some of the people that worked for him, and they spoke highly of him. Following my Civil Service Board hearing, Lee Twyford, a Navy Academy graduate with whom I served as a fighter pilot in the Red Rippers, approached me and offered to be my representative. I was surprised by Mr. Twyford’s offer because I did not think he would want to become involved in something as complicated as my grievance. However, believing he was motivated out of friendship, I accepted his offer. Lee is a highly intelligent individual and I believed he was capable of defending my interests. Mr. Roberts chose John Dargis, a Personnel Division employee, as his representative. On October 18, 1988, I appeared before the Grievance Committee to be interviewed. I found Mr. Twyford’s demeanor disturbing. He smiled too much and was overly friendly toward Mr. Brossard and Mr. Dargis. The night before, I met with Mr. Twyford to discuss strategy and expressed my concern about being asked direct questions about the role I played in bringing my neighbor, Dick Yost and a friend, Jay Ferry into the pollution situation. Mr. Twyford advised me to lie to the Committee. During my interview, I was caught off guard when he brought this subject up. I responded with an evasive answer. When I asked Mr. Twyford about this after my interview, he made light of it. Subsequent to being interviewed by the Grievance Committee, Mr. Twyford and I met to discuss its progress. I became alarmed at the direction the Committee was taking and wrote the Committee the following letter. When I appeared before you on October l8, 1988, I expressed a sincere desire to have this grievance settled so that it is behind me and I could go on with my life.
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The Personnel Rules state that it is the policy of the City of Ft. Lauderdale to assure employees that their problems and complaints will be considered fairly, rapidly and without reprisal. The primary purpose of the grievance procedure, according to the Personnel Rules, is to determine "what is right" and thereby promote the well-being of the organization. These goals are defeated if a spirit of conflict enters into consideration of a grievance. My grievance was executed in the hope of regaining my self-respect by telling my side of the story in regard to the events associated with the New River pollution incident. I wish to remove the cloud that hovers over my career so, in the future, I will be judged by my record of achievement and not rumors and falsehoods. Now, unfortunately, my superiors in the Utilities Department, instead of addressing the issues raised in my grievance, have chosen to defend themselves by launching what can only be described as an un-called for, unsubstantiated, and regrettable attack upon my character and professionalism. It is my understanding that I will not be given the opportunity to respond to this attack. Furthermore, I also understand that any attempt on my part to do so will be construed as evidence of my incompatibility with city employment and an unwillingness to reach a final settlement to this matter. Nothing can be further from the truth. I do not believe the “Catch 22” situation I find myself in is in keeping with the intent, spirit and purposes of the grievance procedure as stated in the Personnel Rules. I also believe that this Grievance Committee would be remiss if it allowed a larger cloud to develop over my career as a result of pursuing my rights under the Personnel Rules. Therefore, at the risk of being labeled a habitual malcontent, I am compelled to respond in writing to these new developments. On October 18, 1988, approximately two hours prior, to my scheduled appearance before the grievance committee, I was given my performance rating for the period ending in May of that year. I believe the timing of this highly inflammatory performance review, was intended to unnerve me during my meeting with the Grievance Committee. In my opinion, it demonstrates Mr. Jordan's contempt for these proceedings and his unwillingness to reach a fair and just settlement of my grievance. Mr. Jordan, by rating me in the manner he did and delaying his review until he believed it would be excluded from consideration with my grievance, in my opinion, is attempting to punish me for executing my grievance. I believe strongly that the Grievance Committee must include this performance review in my grievance for the following reasons: 1. I will never willingly accept a grievance settlement that does not rectify retaliation associated with its filing. 2. Mr. Jordan, following the pollution incident, downgraded my performance review. This occurrence is a key element of my original grievance. This latest review, which I believe is also falsified, is nothing more than a continuation of a pattern of behavior that deserves Grievance Committee consideration.
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3. The period covered by the performance review encompasses the period of time that my grievance was being executed and the marginal ratings are for things that occurred while my grievance was being processed. My superiors have stated that my behavior during this period was not typical. My performance ratings for the previous seven years have been above average. The period of my grievance’s execution was one of high stress. The fact that I have held up as well as I have should be praised and not condemned. It is understandable that my record of consistent above average performance would suffer during such extenuating circumstances. 4. The purpose of the performance review is to inform an employee about his shortcomings so corrective action may be taken. My performance under normal circumstances is above average. If my work circumstances return to normal, so will my performance. Therefore, it is reasonable to conclude that the purpose of this latest review is not to help me to improve my performance, but rather to serve notice that executing a grievance within the City, no matter how justified, will not go unpunished. This, in my opinion, is another message Mr. Jordan wishes to send, which is a violation of the Personnel Rules. I take great exception to the insinuation by Mr. Roberts that something appeared in my psychological evaluation that had possible bearing upon my suitability as a City employee or upon my psychological motivation for filing grievances. Because Mr. Roberts alluded to this during his interview with the Grievance Committee, I believe it necessary for the Committee to review the results of that psychological evaluation. Furthermore, I demand that this report be provided to me. I also take great exception to the conclusions that I am not a loyal employee. True, I was not loyal to Mr. Roberts during the pollution incident, but I believe my actions were justified by the nature of the problem and the circumstances of the situation. I was at crossroads where I had to choose between my loyalty to Mr. Roberts and my duties and responsibilities as a city employee and public servant. The Grievance Committee is tasked with the responsibility of recommending to the City Manager a course of action she should follow in the final disposition of my grievance. These recommendations must be in accordance with established policies, procedures and guidelines. The fact that Mr. Jordan has chosen to rate my performance during the grievance process, in my opinion, is a tactic to subvert this process and to leave a blemish on my record with the City. This, in my opinion, constitutes retribution for exercising my rights under the Personnel Rules and has seriously complicated equitable settlement of my grievance. ****** Shortly after delivery of the above letter, the Grievance Committee provided Mr. Twyford with the following documents. JULIO R. SERRANO, M.D. SERRANO MEDICAL ASSOCIATES, P.A - 52 -
SOUTH ANDREWS PROFESSIONAL BUILDING 3 SOUTHWEST 16TH STREET FORT LAUDERDALE, FLORIDA 33315 (305) 763-4202 September 19, 1983 MEDICAL REPORT RE: ALAN ROBERT ADASCHIK
Mr. Adaschik is a 40-year-old Administrative Assistant II for the City of Ft. Lauderdale Utilities Department. He was requested to undergo a fitness for duty evaluation on 8/4/83. This request was triggered by some incidents involving Mr. Adaschik documented in several memos -- copies of which I have received prior to this examination. One of the documents is signed by Thomas J. Burke who described Mr. Adaschik as highly agitated, argumentative, defensive and exhibiting symptoms of paranoia. Prior to this examination, I also discussed the case with Mr. Joseph Bachman, City of Fort Lauderdale, Personnel Director, who informed me that there were several city employees who raised questions regarding Mr. Adaschik's emotional stability, expressing fears that he might exhibit destructive or violent behavior that could be harmful to others. My medical evaluation consisted first of physical examination which failed to disclose any abnormalities. Included in that examination was a battery of twenty-six (26) tests, which were all normal, and a chest x-ray, EKG - both of which were within normal limits. Once a normal medical status had been assessed, mental status examination was performed, with the following conclusions: (1) Mr. Adaschik was not psychotic and that in my opinion would not harm anyone. (2) That he was overbearing, lacking discretion of knowing when to talk and when to listen, exhibiting substantial amount of anxiety and a lack of selfesteem, manifested by over-activity, grandiose statements and overestimation of his own ability. (3) That he was lacking the flexibility and judgment necessary to work in a bureaucracy. Because of the allegations made in this case and the volubility of the case, I recommended that Mr. Adaschik be examined by Charles Kram, Ph. D., Professor of Psychiatry and Head of the Department of Psychology, University of Miami. Dr. Kram saw Mr. Adaschik on August 18, 1983, and I am attaching a copy of the summary of his examination. In essence, Dr. Kram feels that Mr. Adaschik is not psychotic and will not endanger himself or others; however, he feels that he is having difficulty adapting to work as a team member, - 53 -
and feels that he might be better suited to work in a situation where he is in command where he can receive individual work assignments with minimal supervision and repeated positive reinforcement. ****** I was surprised to learn about the existence of a letter from Thomas J. Burke. I was also shocked that the City would place a letter in my file without my knowledge and without allowing me the opportunity to respond to it. Months earlier, I had visited Mr. Burke to discuss some of the problems I was experiencing as a Utilities Department employee. I surmise that anyone critical of their superiors in the Public Service, is automatically considered as being highly agitated, argumentative, defensive, and exhibiting symptoms of paranoia. The statement by the Personnel Director that there were several city employees who raised questions about my emotional stability and were fearful of me is suspect. It is not possible to find anyone in Fort Lauderdale who would question my emotional stability or was fearful of me becoming destructive or violent. Throughout the worst of my many ordeals as a city employee, I never once threatened or implied that I would harm anyone. Validation of this is the fact that I am still a City employee. In consideration of my standing with my superiors, had I ever threatened physical violence, my dismissal would have been inevitable and immediate. I do not recall ever being “mentally” examined by Dr. Serrano, unless he is referring to my conversation with him in his office. I question how Dr. Serrano could determine that I overestimated my own ability or lacked the judgment necessary to work in a bureaucracy from one short conversation. Dr. Serrano had no way of assessing my abilities and judgment because he knew nothing about these elements of my character other than what he had been told by Mr. Bachman and his associates. Regarding my flexibility to work in a bureaucracy, in consideration of the one I had been exposed to, I am proud that I lack this type of flexibility and believe that the citizens of Fort Lauderdale are fortunate that I do. The results of Dr. Kram’s examination were as follows. UNIVERSITY OF MIAMI, MIAMI, FLORIDA 33101 DEPARTMENT OF PSYCHIATRY P.O. Box 6960 School of Medicine (D-29) Location: The Institute, Jackson Memorial Hospital August 22, 1983 PSYCHOLOGICAL EVALUATION Alan Robert Adaschik Summary: Patient was referred for psychological evaluation by Dr. Julio R. Serrano. He was seen August 18, 1983. - 54 -
Essentially this man would be expected to have difficulty adapting to a work setting where he is expected to function effectively and harmoniously as a member of a team endeavor; where he is further expected to conform to standards and procedures established by others and with which he may disagree; and finally, where he is required to subordinate himself to a superior in authority over him. He would experience particular difficulty with situations, which demand compromise and the application of flexibility. It is especially when confronted by criticism that underlying insecurities and self-doubts surface and those tendencies to overreact manifest themselves in the form of irritability and inadequately inhibited anger. At these times he feels his defenses being challenged, and may react impulsively and injudiciously out of a felt need to protect himself from what he regards as a threatening environment. Ideally, he would probably function best in a work setting of his own where he alone is in command. Where this arrangement is not possible, patient would be less prone to emotional upheaval if he could receive individual work assignments to be carried out by him; where he could develop his own means for executing that assignment; and where he would receive minimal supervision along with repeated positive reinforcement. Patient may be able to benefit from counseling designed to provide support and reassurance, along with an opportunity for him to ventilate otherwise undischarged frustrations and dissatisfactions. There is no evidence in these data to support the likelihood for destructive nor for violent behavior. Rather than that, patient would be prone to withdraw into a depressive state. ****** I do not have problems dealing with or accepting constructive criticism and take exception to the conclusion that I would have difficulty adapting to a work setting where I was expected to function effectively and harmoniously as a team member. My professional career belies this statement, including my service as a Naval Officer, the manager of my own business and my service in volunteer organizations. Dr. Kram apparently fell victim to the assumption that the work environment back at Utilities was normal. When a well-adjusted individual is placed in an abnormal environment assumed normal and reacts to it, the conclusion that necessarily follows is that this person’s reactions are abnormal. This is a classic “Catch 22” situation, used in the Public Service to discredit employees that do not follow the “party line”. The Government by definition is normal, therefore, if you are critical of government, it logically follows that you are not. Unfortunately, It was not long before I began to think that accepting Lee Twyford as my representative on the Grievance Committee was a mistake. Instead of working with me to develop a strategy to win over the other members of the Committee, he kept trying to convince me that I was in serious trouble and he was doing everything possible to get me out of it. The situation escalated to the point where I decided to mail Mr. Twyford the following letter. - 55 -
After our last conversation, I feel compelled to put my thoughts in writing. I wonder why I feel like I am writing to Al Roberts. Perhaps because you have bought the bill of goods sold to you by the other Grievance Committee members. If you where going to buy into their way of thinking, why did you volunteer to represent me? They want to fire me. Big deal! They cannot because I am a good employee; everybody knows it and I can prove it in a court of law. Do you really expect me to grovel at their feet and beg for forgiveness because they want to fire me? Now about the “deal” you made for me. Why did you negotiate a deal and do so without my concurrence? I was an employee in good standing at the start of my grievance. The grievance procedure prohibits retaliation for filing a grievance. Why is a deal necessary? What did you obtain as part of the deal? I sure have not gotten anything. In my opinion, all concerned know my grievance has merit. Connie Hoffmann denied it to spare the City embarrassment. If it was agreed upon to continue down this path, then they owe me and it should be understood that reconciliation would take place at some time in the future. I apologize for being blunt, but am trying to save our friendship. I harbor no ill will toward you or anyone else, but if you wish to remain my friend, stop treating me like an idiot and stop pretending that I should be grateful to them for the privilege of being employed. I am not a dog that licks the hand of the person kicking him. ****** At this point, I seriously considered removing Mr. Twyford as my representative on the Grievance Committee, but decided against doing so because of my fear of the political fallout from taking this step. In the light of the conclusions reached by Dr. Serrano and Dr. Kram in my psychological evaluations, how would it play if my detractors could justifiably claim that I was not able to get along with my own representative on the Grievance Committee? Circumstances were such that I was stuck with Mr. Twyford despite my opinion of him. In addition, from our conversations, I had come to believe that the Committee was stacked against me. Removing Mr. Twyford and taking his place, would still leave me in the minority on the Committee, thus accomplish nothing. Like it or not, I was stuck with the hand I held and could only hope for the best.
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Chapter Seven The Grievance Conclusion
The Grievance Committee, as a focus of their deliberations, compiled 13 points of contention from my grievance documents. They were: 1. Mr. Adaschik believes his career with the City of Fort Lauderdale has been adversely affected by his reporting the pollution of the North Fork of New River to the City Manager's office. 2. Mr. Adaschik believes that if he did not file this grievance, he would continue to suffer adverse consequences. 3. Mr. Adaschik believes that Mr. Roberts, Mr. Bachman, and Mr. Jordan are responsible for perpetuating grievance points one and two above. 4. In Mr. Adaschik's opinion, the needless creation of the Process and Information Control Division eliminated his career path to upper level management. 5. Mr. Adaschik believes he is more qualified than Bob Nielson to run the Process and Information Control Division. 6. By placing Mr. Nielsen in charge of the Process and information Control Division, Mr. Adaschik believes Mr. Roberts has demonstrated his intentions to deny him due consideration for promotion to that position. 7. Mr. Adaschik believes that Mr. Nielsen is not qualified to be the Division Head of the Process and Information Control Division and has wasted money because of his inexperience. 8. Mr. Adaschik wishes to be included in Utilities Department staff meetings. 9. Mr. Adaschik takes issue with recent renovations to the office area at Utilities. Specifically, his office is too small. 10. Mr. Adaschik believes that the Sanitary Engineer should report to him. 11. Mr. Adaschik alleges that Mr. Jordan told him he was unfit to be a Public Servant. - 57 -
12. Mr. Adaschik alleges that Mr. Jordan does not consider him the chief financial officer of the Utilities Department. 13. Mr. Adaschik alleges that Mr. Jordan advised him to find a job elsewhere, as soon as possible and take anything offered. Towards the end of their deliberations, each member of the Grievance Committee wrote a report about their position in regard to the above listed grievance points. I wrote a response to these reports. Following this exchange, Mr. Dargis and Mr. Brossard issued a recommendation report to Connie Hoffmann. Lee Twyford, in alleged disagreement with their conclusions, assured me he would submit a minority opinion, but could not find the time to do so. Dick Brossard and John Dargis’ letter dated December 16, 1988, follows: Dear Mrs. Constance Hoffmann A Grievance Committee, comprised of Lee Twyford, John Dargis and Dick Brossard was designated under Section 10 of the personnel rules, to review a grievance submitted by Alan Adaschik and present you with a recommendation. The Committee's first three meetings were spent in reviewing the grievance documents, discussing the thirteen identified grievance points and conducting hearing interviews. Our intent was to develop a common understanding of relevant practices and procedures so consensus could be achieved. In two meetings following the grievance hearings, we concluded we could not achieve consensus on all items. Consequently, you will receive two reports, one from Mr. Twyford and this one. This report details exceptions and refers to the position statements prepared by each of us. On grievance points 1, 2, and 3, we concluded they are without merit and Mr. Twyford concluded otherwise. There were two points of view; what has happened and what could be. There is consensus that the New River pollution incident had no bearing on the Airport Manager and Process Control Engineer promotional opportunities. Consensus was not reached on the view that additional functional and supervisory responsibilities, which would cause Mr. Adaschik’s position to be rated higher, were not assigned as a result of the New River pollution incident. The context of a statement in your memorandum to the Commission advising them of the New River pollution situation is a factor. We view the deletion of the historic Management Level III position for Administration as resulting from a reorganization that created the Assistant Utilities Director position. Mr. Adaschik believes that you were advising the Commission that the City was being fined $50,000 and the reason for the fine was he reported the pollution situation to your office. Therefore, it follows that a promotion will not be given to someone who caused the City to be fined $50,000. Incidentally, the $50,000 assessed by the DER was eventually returned to the City to reimburse for contract expenses related to a dredging project at this location. We believe there is consensus, except for a few editorial comments, that grievance points 4 through 13 are without merit or supportable finding. On grievance point 4, it has been - 58 -
pointed out by Mr. Twyford that the job announcement and position description for Process Control Engineer did not stipulate that divisional and supervisory responsibilities were part of the job. We do not believe this is significant. On grievance point 8, pertaining to attendance at department staff meetings, the question "How can Mr. Adaschik be effective in his functional responsibilities when he is not allowed to participate in departmental staff meetings" has been raised. On grievance points 11, 12, and 13, it has been observed by Mr. Twyford that it would only be human nature for supervisory personnel to develop a bias toward an individual that has initiated actions similar to those initiated by Mr. Adaschik and that some of the responses during hearing interviews confirm this bias exists. Three additional items were discussed at length in trying to arrive at a consensus and to make recommendations for your consideration. They are: 1) Mr. Adaschik's performance evaluation for the period May 17, 1987 through May 17, 1988. 2) The Process Control Report and memorandum by which it was forwarded to the City Commission. 3) The grievance procedure and process by which management grievances are reacted on. Mr. Adaschik's performance evaluation through May 17, 1988 was presented to him at 3:00 P.M. on Wednesday, October 12th. The fact that he was given five marginal ratings and presented with a report just hours before his scheduled appearance in front of the Grievance Committee, even though the overall rating came out satisfactory and is a records only performance evaluation, has raised concern that it appears as though it was given in retaliation for filing a grievance. Given this concern and the belief that performance is part of the grievance and being reviewed by the Grievance Committee, Mr. Twyford has recommended that the performance evaluation be rescinded. This recommendation followed the belief that if the evaluation is allowed to stand and is appealed, another round of disruption and dissension will follow. An alternative view has been raised, that following this recommendation could lead to a dangerous precedent as other employees could file a grievance if they anticipated a bad performance evaluation, in the hope of having the performance evaluation canceled. Additional research and review of the employee performance, rating system was conducted subsequent to the November 29th meeting to help conclude a position since consensus was not achievable. The employee performance rating system, which ties back to personnel rules and City Charter, is intended to be a constructive tool for employees and supervisors. As such, effective two-way communication between the employee and supervisor is a necessary ingredient to make the rating system a viable management tool. The fact that there has been no opportunity for two-way dialogue between the grievant and his raters regarding the current performance evaluation and that an assessment center evaluation would measure the dimensions for which marginal ratings were given, has led to the third view that routine procedures should be followed without providing Mr. Adaschik with extraordinary relief. - 59 -
The appeal procedure, outlined in the Manual for Employee Performance Ratings, is used with some regularity according to the Personnel Director. The Policy and Standards Manual procedure for communicating with the Commission was noted and discussed in relation to the Process Control Report and the June 13th memorandum concerning this matter, which was copied to the Commission. Again, there was no consensus on appropriate reaction or recommendation to this item from the Grievance Committee. This is because of an interpretation of Paragraph C of that policy, which provides that under certain circumstances, communications by employees may occur directly with the Commission. The alternate view of this paragraph is that it was intended to address circumstances where a commissioner requested information from a City employee and does not provide for City employees to communicate directly with the Commission under their own volition about city matters, even if the employee believes the matter is grave. An additional point made on behalf of the grievant is that the grievant’s legal counsel advised that the report should be conveyed to the Commission. The grievance procedure itself, as established for management level employees and the exercise of the grievance committee mechanism when the grievant is close in the chain of command to the department head was discussed. Again, there was no consensus on this matter. The options discussed were to exercise the grievance committee procedure more quickly in the future and reviewing the future desirability of retaining the procedure for management personnel. Recommendations It is our recommendation that all 13 grievance points be denied. After referring to the two possible viewpoints for grievance points 1 through 3 and discussing them, you should advise Mr. Adaschik that the City would provide him opportunity for future advancement based on qualifications, experience, and performance as is done for all other employees of the City. We recommend that the performance evaluation be handled as a separate matter in a routine fashion. Tying in with both the opportunity for advancement and the performance evaluation issues, it is our recommendation that Mr. Adaschik be provided an opportunity to go through a 33 item, in-basket exercise at the earliest opportunity (a type of exam used by Personnel to evaluate an applicant’s administrative abilities). This could be done in conjunction with a promotional opportunity or as part of the City's training and development program. Finally, Mr. Adaschik and all City employees should be reminded of their responsibility to communicate within the organization to you and that you report to and communicate City matters to the Commission. As a separate item, one that does not require a report or response to Mr. Adaschik, we believe the grievance procedure currently in effect for management personnel should be modified or reviewed for relevance and effectiveness for the employee setting that exists in Fort Lauderdale today. ******
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While being disappointed that Mr. Dargis and Mr. Brossard ruled against me on all counts, I was relieved that their tone was one of reconciliation. I now anxiously waited in vain for Lee Twyford to submit his promised minority recommendation. Finally, running out of patience, Connie Hoffmann issued the following ruling. MEMORANDUM NO. 89-55 DATE: TO: FROM: SUBJECT: January 27, 1989 Utilities Financial Administrator/Alan Adaschik City Manager/Connie Hoffmann Your Grievance dated March 22, 1988 and Supplemental Submittals of June 6, and June 21, 1988
I have read your grievance submittals, the comments submitted by the Grievance Committee, and the Camp Dresser & McKee report on Process Control and staffing at the treatment plants, which relate to several of your grievance points. I have waited for over six weeks for a final report from Mr. Lee Twyford, your appointee to the Grievance Committee, for his comments on the merits of the grievance. The Chairman of the Grievance Committee, Richard Brossard, contacted Mr. Twyford on three different occasions and urged him to submit his report. Mr. Twyford indicated to Mr. Brossard each time that the report would be sent right away, but I have yet to receive it. While I do not have the benefit of his written comments, Mr. Brossard has conveyed to me Mr. Twyford's viewpoint and observations on the matter. In addition, I have read an undated seven-page report from Mr. Twyford that was submitted to the Grievance Committee during the fall. With regard to the grievance points themselves, I have listed my findings below. Where appropriate, I have commented on the item. Grievance Point #1. Finding - Without Merit I might add on this issue that my memo to the City Commission of June 29, 1983 does not relate (nor was it intended to relate) to the $50,000 fine that the City was assessed to your actions in reporting the pollution problem. In addition, my recollection of our discussion of May 28, 1984, is somewhat different from yours. I recall that you expressed your opinion that you would not advance in the City organization because you had reported the problem at the NW 6th Street Treatment Plant. I assured you that alerting my office to the pollution problem would have no impact whatsoever on your advancement potential with the City. I did tell you that I had heard numerous comments from employees outside the Utilities Department who had worked with you on various issues that you were difficult to work with and that the perception that you did not work cooperatively with your fellow employees could hinder your potential for promotion. - 61 -
Grievance Points #2 through #11. Finding - Without Merit Grievance Point # 12. Finding - Without Merit Based on Mr. Jordan's statement to the Grievance Committee, it appears that he did not consider you to be the chief financial officer of the Department as he felt the Utilities Director had the ultimate responsibility for the financial operation of the Department. I understand Mr. Jordan's point and feel it was within his purview as your supervisor to hold such an opinion and I do not find his comment to be inappropriate or injurious to you. Grievance Point #13. Finding - Without Merit This concludes my findings on your grievance. In addition, I would like to comment on the issue of your performance evaluation and its relationship to the grievance procedure. The timing of your performance evaluation was indeed unfortunate. In reviewing why this happened, I learned that Mr. Jordan originally decided to hold off your performance review so that it would not interfere in any way with your grievance proceedings. However, when the grievance proceedings were repeatedly delayed and dragged on many months, the timeliness of the performance evaluation became a concern and the decision was made to go forward with it. I agree that it could have been scheduled on a day other than the day you were to appear before the Grievance Committee, but I do not believe that the insensitive timing of the review session is grounds to throw out the evaluation itself. I would also like to clarify for the record that the City will give you the same consideration for advancement that it provides to any other employee, i.e. we will objectively evaluate your qualifications, experience, past performance, and your performance on various tests used to rank applicants for jobs in making promotional decisions. No one is guaranteed promotions however, and I think your expectations must become more realistic. It is a very rare employee, who is promoted every time (or even the majority of the times) he seeks a higher position. The grievance you have submitted has received intense and careful consideration. The City has gone the extra step to assure that your grievances received impartial consideration, even including hiring an outside consultant to evaluate aspects of your allegations. I am convinced that these findings are fair and hope that you will be able to accept them and go on about your work in a productive and efficient manner. ****** It is interesting to note that Connie Hoffmann mentions the Camp, Dresser & McKee report on Process Control that resulted from my cost reduction suggestion, but never mentions the results of that study. There is a good reason for this. The Camp, Dresser & McKee report validates my recommendations. Furthermore, as of this date, all of them have finally been implemented within Utilities. - 62 -
Connie Hoffmann ruled my grievance to be without merit. While I disagreed with this outcome and believed any unbiased individual, knowing the facts would agree with me, there was nothing I could do about this turn of events. I thought of John Dargis when he wrote, “the grievant appears to be on the fence between being a disruptive and divisive force in the Utilities Department and being a productive management employee”. Protesting further would allow my superiors to claim the former true and worsen my situation. I also understood that if Connie had ruled in my favor, it would have constituted an indictment of her staff and thus a serious failure of her administration. I reasoned that knowing the facts, city management knew the truth and while the truth could not be acknowledged, surely my future would take a turn for the better if I graciously accepted Connie’s ruling. Shortly thereafter, I met Lee Twyford over lunch to discuss his behavior as my representative on the Grievance Committee. In preparation for this meeting, I compiled a “Motivational Doubt Score-card” to serve as a focus of our discussion. This scorecard follows: As my representative on the Grievance Committee, why did you: During my interview with the Grievance Committee, ask me about the details concerning my actions after I learned the dumping of raw sewage had resumed, when the previous evening we discussed my concerns and you counseled me to lie to the Committee if the matter come up? Forcefully defend the City's point of view in our conversations, instead of cooperating to find ways to change that point of view? Not discuss and reach agreement upon the strategy you would use in dealing with the Grievance Committee? Make decisions and agreements with the Grievance Committee without discussing them with me and eliciting my concurrence? Not go on record protesting the unfair and self-serving procedural methodologies chosen by the Grievance Committee? Not insist that John Dargis and Dick Brossard change their reports prior to submittal to Connie Hoffmann, when I demonstrated that many of the points in these reports were based on misconceptions? Not insist that my written responses to the reports of John Dargis and Dick Brossard be included in the final submittal to Connie Hoffmann? Fail to write a minority opinion to Connie Hoffmann?
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Doubt that my wife left me because of the stress we endured resulting from the treatment I received during the pollution incident? Tell me that Camp, Dresser & McKee had originally wanted $20,000 to complete the Process Control Study and they finally settled on a price of $5,000? Why would John Dargis confide in you with this sensitive information when you were my representative on the Committee? ****** At our meeting, Mr. Twyford did not dispel the doubts I harbored about him. I was faced with a choice: end our friendship or put the situation behind me. I reasoned that while venting my emotions would provide me with a measure of gratification, beyond that, would accomplish nothing. Furthermore, if my suspicions about Mr. Twyford were correct, doing so would be communicated to city management. Like it or not, if my star was ever going to rise again in the City, it would only do so if my graciousness extended to Mr. Twyford also. Finally, at Mr. Twyford’s urging, I mailed Dick Brossard the following letter: MEMORANDUM To: From: Subject: Dick Brossard, Public Works Director Al Adaschik, Utilities Financial Administrator Grievance
Now that my grievance has reached the end of the administrative process, I would like to thank you and the other members of the Grievance Committee for serving so diligently and professionally during the proceedings. Although I am not in 100% agreement with the conclusions reached by the Committee, I realize that in the final analysis, the decisions made are in the best interests of the principals involved and more important, the City of Fort Lauderdale. I hope that all of us have learned something from this experience. If that is the case, then I believe it was worthwhile. Thank you again for your efforts. ****** One of the most extensive grievance proceedings in the history of the City of Fort Lauderdale was over. No acknowledgment of any wrongdoing on the part of anyone had been made, despite the plethora of evidence to the contrary. This came as no surprise. Organizations do not usually admit to wrongdoing. However, one would - 64 -
expect that this would not be true for a governmental organization. My purpose for initiating a grievance was not to change the past, but to regain my self-respect and affect the future. I achieved the former. Only time would reveal if I achieved the latter.
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Chapter Eight Prelude to an Appeal
On February 28, 1990, Connie Hoffmann, "tired of the old grind", resigned and left for Europe on a sabbatical. George Hanbury was hired as her replacement. One of the first things Mr. Hanbury did, as City Manager was transfer Sanitation Operations from Utilities to Public Works. As Financial Administrator of Utilities, I was concerned about how this would affect my position. Utilities at the time consisted of Water, Wastewater, and Sanitation Operations. Despite being one-third of our responsibilities, Sanitation Operations occupied approximately one-half my time. I was also concerned no one discussed the logistics of implementing the change with me. I assumed the initiative and prepared a presentation about how the transfer would impact my area of responsibility. Based upon this presentation, Mr. Brossard, who was still the Director of Public Works, requested that I be included in the transfer. Although concerned about this development, I reasoned that Mr. Brossard was familiar with my situation in the City and this could be an opportunity for moving ahead. However, no guarantees had been offered and I had no idea what the future held. Subsequent to my leaving Utilities, Jim Cali, Assistant to the City Manager, was asked to serve as Financial Administrator in Utilities. Shortly thereafter, Mr. Roberts retired. Greg Kisela was hired by Mr. Hanbury to replace him. Soon after Mr. Kisela's arrival on the scene, Mr. Cali left the City to accept a position with the Broward County Sheriff's Office. Upon Mr. Cali's departure, Mr. Kisela took steps to create a new finance position within Utilities called Rate & Finance Administrator. Upon reviewing the job class specifications of this position, I was surprised to find that it contained the same duties and responsibilities as my old position with a greater emphasis being placed upon rate development, a task I routinely performed for several years. More surprising was the fact that the Equicomp Committee ruled this new position would have a five percent higher pay range than my old position. Something was wrong. The transfer of Sanitation Operations from Utilities removed one-half the work of my old position. How could a new position with less work be worth five percent more in pay just because rate development had been emphasized? I decided to complete a written analysis of the duties and responsibilities of the Financial Administrator in comparison to the Rate & Finance Administrator and presented this analysis to Mr. Brossard. He acknowledged that my points were well taken. Encouraged by Mr. Brossard’s concurrence, I forwarded a copy to Assistant City Manager Pete Witschen, with a request for a meeting. When we met, Mr. - 66 -
Witschen conceded nothing, but promised to look into the matter. I never heard from him again. When finally advertised, I applied for the position of Rate & Finance Administrator, but was eliminated from consideration at the interview stage of the application process because, I did not possess the required level of ratemaking skills. Upon being told this, I requested a meeting with the Personnel Director and other involved parties. At this meeting, Mr. Kisela stated that his intention were to improve the rate making function within Utilities. This was why the Rate & Finance Administrator position was classified higher than the Financial Administrator and why I was eliminated from consideration for the position. This line of reasoning is seriously flawed. If Mr. Kisela truly believed what he was saying, then he did not understand the nature of rate development in a utilities environment. I tried to explain my point in this regard and after doing so, the meeting closed with no decisions having been made. Following our meeting, I wrote the following letter to Mr. Panoch. I want to thank you for holding our August 3rd meeting. Because a limited amount of time was available, I wish to clarify the points I made at our meeting. The primary purpose of the rate development in Utilities is to determine rate increases for Commission consideration that enable our enterprise funds to realize sufficient revenue for operations and their capital programs. I have developed rates for the Water, Sewer, and Sanitation Funds for several years with an acceptable degree of proficiency. I determined if rate increases were necessary and if so, calculated the size of the increases required. The revenues realized from my recommendations always mirrored original projections. I understand Mr. Kisela's desire to improve rate development within Utilities. However, in consideration of the fact that I have successfully performed this function for years with an acceptable degree of proficiency, I believe it incumbent upon Mr. Kisela to demonstrate why improvement beyond my performance is necessary and how this can be accomplished. In our August 3rd meeting, I believe I made persuasive and cogent arguments as to why the methodologies suggested by Mr. Kisela are not practical. For example, he proposed to set future rates on the basis of plant flows. Unfortunately, for reasons unknown, our water pumped to billed ratio fluctuations periodically invalidating plant flows as a forecasting tool. Furthermore, rainfall is the dominant factor in determining plant flow and it is impossible to predict the amount of rain we will experience in the coming year. Because weather is the dominant factor in determining plant flows, budgeting for water & sewer plant operations is based upon worst-case scenarios. As a result, a high degree of accuracy is not required or necessary. For example, electricity to run pumps is a significant part of a plant’s budget and the amount used is directly related to flow. Therefore, plant electrical costs are always budgeted to in anticipation of high levels of rainfall. - 67 -
When a rate maker seeks to establish a new rate for the coming fiscal year, another significant factor for consideration is the desired level of unappropriated fund reserves. The existence of fund reserves serves as a cushion for the rate maker and precludes the need to develop rates with a high degree of accuracy. In conclusion, while improving the rate making function within Utilities appears to be a worthy goal, improving it beyond the services routinely performed by me, is not possible. Fund reserves, weather, and allowances for contingencies, ensure this is the case. ****** Eventually, an individual half my age, not a veteran and, in my opinion, far less qualified, was hired as Rate & Finance Administrator. After several months, he resigned. I found out later from Mr. Kisela that he did not perform up to his expectations. After the Rate & Finance Administrator position was vacated, Mr. Kisela decided freeze the position pending the anticipated merger of Public Works and Utilities. At the time, Personnel were again evaluating my position to determine its classification. This PD-13 process turned out to be a frustrating affair that took sixteen months to complete. Near its conclusion, my PD-13 was sent to Assistant City Manager Pete Witschen for review. Without discussing anything with me, Mr. Witschen reduced the knowledge and skill requirements of my proposed job description, thus reducing its chances of being rated at a higher level than my present position. Assistant City Managers normally do not become involved in the PD-13 process of employees at my level. Why Mr. Witschen did in my case, has never been explained. This turn of events moved me to begin writing an appeal to the Civil Service Board. However, before completing it, the Equicomp Committee ruled my new position would be at the same management level and pay range as my old position. Upon meeting with Mr. Brossard to discuss this development, he assured me that I would be reevaluated again after Hugh Barnhart retired in March of 1994 and my concerns would be addressed then. Hugh Barnhart was General Services Director and assumed responsibility for Sanitation Operations when it was transferred to Public Works. Upon transferring to Public Works, I volunteered to work under Mr. Barnhart to be positioned to apply for his position when he retired. I put my faith in Mr. Brossard’s words, dropped my appeal and resolved to be patient. However, I was not told that Mr. Brossard was actively seeking employment elsewhere, which he soon found. The departure of Mr. Brossard to assume a position in the Broward County Department of Public Works and the imminent retirement of Hugh Barnhart provided Mr. Hanbury with the opportunity of merging General Services and Utilities into a new department called Public Services. This consolidation, - 68 -
potentially held opportunity for me because the consolidation not only included Sanitation Operations, but also added Facilities Maintenance to the department’s scope of responsibilities. With my old position unfilled, I was convinced I would become the financial officer of a department with an operating budget exceeding $65 million dollars yearly. It did take long for me to realize how wrong I was. Mr. Barnhart did not include me in any of the staff meetings where the logistics of this merger were discussed. I was again being kept in the dark about decisions impacting my career with the City. On January 25, 1994, I was informed by Mr. Kisela that I would report to Bob Nielsen during the transition stage of the consolidation. I objected to this arrangement in the strongest possible terms. From my perspective, I should have assumed the duties and responsibilities of Rate & Finance Administrator and report directly to Mr. Kisela as a member of his staff. Furthermore, considering my grievances and the role Mr. Nielsen played in them, I would be extremely uncomfortable having him as my supervisor. Mr. Kisela declined to reverse his decision during the transition period. However, he assured me that after Mr. Barnhart retired he would reconsider my situation. Not having a choice, I reluctantly accepted his decision. Subsequent to my meeting with Mr. Kisela, a series of workshops was held to develop an organizational chart for the newly created Public Services Department. The end-result was that the Process & Information Control Division was dissolved and its remaining functions moved into a newly created Administration Division under the direction of Bob Nielsen. My place in this new Division would be to supervise its Finance Activity as his subordinate. In response to this development, I asked Mr. Kisela to arrange a meeting for me with Mr. Hanbury and asked him to attend. A series of two meetings were held where I explained my career situation and provided both Mr. Hanbury and Mr. Kisela with sufficient documentation to substantiate my story. I tried to convince them how unfair I was being treated and told them that I had a problem with reporting to Mr. Nielsen. My words fell on deaf ears and subsequent to our meeting, Mr. Hanbury mailed me the following letter. I have reviewed the material you requested and have honored your confidentiality. I can assure you that there is no retribution involved to the best of my knowledge on Mr. Kisela's or obviously on my part regarding the matter, you properly reported in 1983. As I pointed out to you, I think you are a valuable staff member, not only to the Public Services Department, but also to the entire City operation and therefore a major management employee in this organization. I have always left to the decisions of the Department Directors the internal organization of their departments and feel it would be inappropriate for me to interfere with Mr. Kisela's judgments at this time. - 69 -
As pointed out to you, I will be reviewing your PD-13 when it is completed by Personnel and by separate confidential memorandum, I have requested Mr. Panoch to send the PD-13 directly to me after final approval. ****** The truth of my situation as a manger in Fort Lauderdale was now clear to me. The filing of my grievance in 1988, had not removed the stain upon my career. My actions during the pollution incident, although commendable, would not be forgotten or forgiven. In my opinion, I was hired by the Fort Lauderdale on a fast track to replace Lucky Jordan when he retired. I fell into disfavor because of the role I played in the New River pollution incident, but the City had a problem dealing with an employee with my credentials. The Process & Information Control Division was created to assume some of the administrative functions formerly assigned to me. I was then given a token promotion, to preclude my having recourse before the Civil Service Board or under existing Whistleblower Laws. Their mistake was that the process control function as conceived and developed was grievously flawed from an organizational, operational, and financial point of view. I exposed this situation concurrent with the filing of my 1988 grievance. Rather than helping me, these efforts heightened my disfavor with management. While this is understandable, I believe any unbiased individual would conclude my disfavored status results from performing the duties and responsibilities included in my job class specifications to a high degree of proficiency. Change always presents opportunity, which can be good or bad dependent upon who is favored by management. Individuals who are favored do well and are rewarded. After Connie Hoffmann took a sabbatical and Allen Roberts retired, in my opinion, the merger of Utilities and Public Services gave management the opportunity for which it was waiting. Before leaving Utilities, I managed its administrative functions and supervised the Supervisor of Finance. Upon returning to Public Services (Utilities), Bob Nielsen would manage the administrative functions of the department and I would be the Supervisor Of Finance under him. According to management, this arrangement was in the best interest of the efficient operation of the Public Services Department. From my perspective, it was a humiliating downgrade in position and status. I believe this situation was engineered for the purpose of serving notice to my fellow employees. Despite the City Charter, despite the Personnel Rules, despite the best interest of the citizens of Fort Lauderdale, and despite the existence of a Florida Whistleblower Law, if you place doing your job or the health and safety of the public ahead of loyalty to your boss, in Fort Lauderdale, you will pay a price. I spoke to at least a dozen attorneys hoping to find one that would represent me in a lawsuit against the City. None would consider representing me on a contingency basis because no punitive damages were provided for under Florida’s Whistleblower - 70 -
Law. The attorney’s I spoke with also stated my chances of winning a lawsuit were slim because I would be fighting city government and even if I did win, had little to gain because of the high cost of litigating a suit of this nature. That’s how ineffectual the Florida Whistleblower Law is. In 1991, Paula Coughlin, a female Naval Aviator who should have been aware of what to expect, attended the Navy’s Tailhook Convention in Las Vagas and was assaulted in a drunken orgy by her peers. I am not trying to make light of Ms. Coughlin’s terrible experience at Tailhook, but was one evening of humiliation worth the 5.2 million dollars that she was awarded for her pain and suffering? If it was, what is the pain, suffering, and humiliation I have experienced at the hands of my superiors within Fort Lauderdale for the past 13 years worth? According to the Florida Whistleblower Law, nothing. This state of affairs is no accident. By not allowing whistleblowers to sue for punitive damages, the current Whistleblower Law precludes securing legal services on a contingency basis and ensures that potential gains overshadow associated costs. This makes whistleblowing is a high risk and no win venture. Whistleblowers act in the public’s best interest, but the Florida Whistleblower Law offers inadequate protection for doing so. Those in positions of authority know this and are able to punish whistleblowers by administratively working around the law’s provisions. Most attorneys in Florida are aware of this state of affairs including those in State Legislature. However, nothing is done to rectify the situation, because it serves the purposes of the ruling establishment. The intent and purpose of the Florida Whistleblower Law is to protect whistleblowers that bring wrongdoing to light and, thereby, encourage responsible action on the part of those in positions of trust and authority. As enacted, the law fails to achieve its purposes and this failure is not an oversight. On February 7, 1993, the Sun-Sentinel published the following letter I wrote in response to an article announcing a so-called “progressive” Whistleblower Law passed by Broward County. New whistleblowers' law won't work in Broward It is gratifying to know that Broward County wants to hear from employees who know about wrongdoing in government. However, county officials are kidding themselves if they think the recently passed whistleblower law will accomplish this. For the most part, the new law in its present form will elicit revelations only from employees on their way out seeking to block dismissal. Government employees who care abut their careers or aspire to higher office understand that whistle blowing, even for criminal activity or gross and flagrant improprieties, will result in being labeled a "troublemaker," a kiss of death in public service. "Troublemakers," no matter how justified or well intentioned, are never promoted or hired elsewhere.
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If Broward County is interested in rooting out wrongdoing, it should modify the law to provide for whistleblowers being awarded the position of any superior discharged because of reported improprieties. The establishment rebuttal to this suggestion will be that it would result in unqualified individuals promoted into responsible positions of trust and authority. In response to this, is it not always better to have an unqualified whistleblower in a position of trust and authority as opposed to a qualified crook or empire builder? I personally prefer mistakes of honest intent to intended mistakes, no matter what the consequences. ****** At this point, it is fair to ask why I never left the City and found employment elsewhere. I have tried, but have not been successful. Since the New River pollution incident, I have applied for over 300 Public Service positions throughout the Nation. I confined my search to the Public Service because I believe that is where my calling lies. Despite having a stellar resume, on most applications I received no response; on the remainder, save one, rejection letters. The only offer I received was for a position with a $10,000 cut in pay and a trailer for an office parked in the middle of a garbage dump. Black listing is illegal. Am I black listed within the Public Service of this Nation? How it is possible for anyone to be black listed in the Public Service of the United States of America? For the past thirteen years, despite my credentials, I have not been able to find a suitable position anywhere. If this is not being black listed, then I will someone please explain to me what blacklisting is?
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Chapter Nine A Civil Service Board Appeal
My letter of appeal to the Civil Service Board dated March 10, 1994, written to John Panoch in his capacity as Secretary to the Board, is nineteen pages long and starts by providing a detailed history of the events that led up to my appeal. The reader has been made aware of these events in the previous chapter, so the first part of this letter will not be included here. My letter concluded with the summation that follows. I believe I am a highly qualified and highly productive employee who, under normal circumstances, should have advanced rapidly within Fort Lauderdale's management structure. This has not happened. Why? It cannot be said that an opportunity for advancement had not materialized. In the past, there have been numerous opportunities for my advancing. The most recent and viable opportunity was the merger of Utilities and General Services. However, as in the past, the situation turned against me because the "efficiency and effectiveness" of the Department was better served by other arrangements. If my contributions and professional qualifications are outstanding, if numerous opportunities for advancement have passed with no positive result, and if advancement within Fort Lauderdale is based upon merit principles and scientific methods as required by the City Charter, then it follows that the individuals selected or moved into potential advancement situations in lieu of myself have possessed better credentials and been more qualified than me. I submit that this is not the case and that examination of the record bears this out. This being so, it follows that in every instance where advancement was possible, either the selection process was flawed or a hidden agenda affected the outcome. Everyone, including the most intelligent and professional people are capable of making mistakes. However, my present perceptions are that as far as I am concerned, too many mistakes have been made for too long a period of time to believe that bad luck and errors in judgment are the cause of my situation. This being so, I am left to conclude that I will advance no further because of the roll I played in stopping the pollution of the North Fork of New River and the filing of my grievance. City management will maintain that this conclusion is not true. However, in consideration of all that has transpired, I believe it incumbent upon management to explain why someone who selflessly volunteers his talents and free time to civic and charitable organizations at the executive level, is not considered worthy or capable of providing these same services within a governmental organization. I also believe the following questions should be addressed by the Civil Service Board: - 73 -
1. If the dumping of raw sewage into the North Fork of New River by the City of Fort Lauderdale was an accident and unavoidable, why was I treated in the manner I was immediately following the incident? 2. Why was it incumbent upon Lucky Jordan to downgrade my annual performance review? 3. How is it possible for Mr. Nielsen to be appointed Division Manager in lieu of someone with my education, work experience, and contributions? 4. How is possible for John Panoch to rule that my grievance was not subject, in any obvious fashion, to established ordinances, administrative regulations or the Personnel Rules when, such violations were the main thrust of the grievance and documentation was provided that indicated such violations had taken place? 5. Why wasn’t I provided with the opportunity of returning to Utilities in the capacity of Financial Administrator or Rate & Finance Administrator when Mr. Cali left the City or upon the merger of Utilities and Public Works? 6. Why was the Rate & Finance Administrator Position rated at a higher pay scale than the Financial Administrator when the two positions were essentially the same? If this was an honest mistake, then why did not Frank Coulter, Deputy Utilities Director, and Hector Castro, Assistant Utilities Director, not speak up and prevent this mistake from happening? Both these individuals are intimately familiar with rate development in Utilities and the role I played as the Department’s rate maker. 7. When I brought the situation concerning the Rate & Finance Administrator position to the attention of Assistant City Manager Pete Witschen, why did he not rectify the situation. Is it not incumbent upon Mr. Witschen as Assistant City Manager, to address inconsistencies and unfair situations when they are brought to his attention? 8. When Mr. Witschen reviewed my job description for the position of General Services Administrator, what were his reasons for changing the wording in that job description that reduced the position's level of knowledge and skill? 9. The final version of the position description for General Services Administrator is not the version submitted to Personnel after being approved by Mr. Brossard and Mr. Barnhart. How is this possible for personnel arbitrarily to change a work description that was endorsed by two Directors? 10. Why did Mary Ann Trahan take so long to process my PD-13? If Ms. Trahan was having difficulty, discerning the levels of expertise associated with the - 74 -
position, why did she never call or contact me for a clarification? Lisa Slagle was the Personnel Analyst who interviewed me in conjunction with my initial PD-13 submittal. Ms. Trahan took over shortly after that. How could Ms. Trahan effectively pick up where Ms. Slagle left off without ever talking to me about my duties and responsibilities? 11. When the decision was made to merge General Services with Public Works, why was I excluded from discussions concerning this merger? 12. My job description states I have the skills that allow me to evaluate, recommend, and coordinate improvements to management control systems, productivity, work methods, policies, procedures and programs. Why was an employee with these skills excluded from the merger decision process? 13. In consideration of my job description and work history, why did Mr. Kisela exclude me from Department Head staff meetings where the logistics of the merger was being discussed when several other lower level managers from General Services were included; two of whom were at a lower level and had never before attended Department Head staff meetings on a regular basis? 14. If Mr. Kisela's goal was to develop an idealized organizational chart, why did he place names in the positions, on the chart for presentation at the 2nd management retreat? How could anybody in attendance at this retreat objectively evaluate the merits of the proposed chart with the names of friends and co-workers evident and those people sitting in the room? The placement of people within an organization, according to the City Charter, should be based upon merit principles and scientific methods. This task is the responsibility of the Department's executive level management with the assistance of Personnel Division officials. Asking retreat members to pass judgment on a chart containing the names of the people holding the proposed positions, was highly inappropriate and unfair to anyone who held the perception that they were not being treated fairly. Have we now gone from promotion based on merit principle and scientific methods to promotion based upon politics and popularity? 15. How does Mr. Kisela justify placing Bob Nielsen in charge of the Administration Division when the record clearly indicates that, excluding the fact the Mr. Nielsen has functioned as a Division Manager for several years, I am more qualified than he is to manage this Division? In conclusion, I am a highly educated and professional employee with a broad range of executive level experience. Under any other circumstances, I would be on a fast track to executive level management. However, within Fort Lauderdale, this is not the case and I am being demoted instead. I believe the reason for this is obvious; my role in exposing the pollution of the North Fork of New River and because of the related grievance I filed in - 75 -
1988. I also believe I have demonstrated this to be the case and that further investigation will support this conclusion. I look to the Civil Service Board for redress in this matter.
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Chapter Ten An Appellate Appeal
Upon making the decision to appeal to the Civil Service Board, I operated under two assumptions: every employee had a right to a hearing and obtaining one would be easy. Both these assumptions proved to be wrong. I wrote the following letter to John Panoch because he appeared to be dragging his feet in scheduling the appeal I requested. The Personnel Rules state that an employee who claims that a personnel rule has been improperly applied or misinterpreted may appeal to the Civil Service Board. Assistant City Attorney Lindsey Payne is an advisor to City Management and Civil Service Board Attorney Ken Mikos is an advisor to the Civil Service Board. This being so, Lindsey Payne, while being in a position to advise city management as to the status and merits of my appeal, has no say in determining if an appeal should be scheduled or not. Similarly, while Ken Mikos is in a position to advise the Civil Service Board if he believes my appeal should be heard or not, he is not in a position to make this decision for them. The Civil Service Board is the only authority designated and qualified to determine if my appeal is proper before the Board. If you persist in the course of action you have chosen, in my opinion, you will be in violation of the Personnel Rule that requires you to schedule an appeal hearing at the earliest practicable date and I will be forced to initiate another appeal to the Civil Service Board on this basis. My appeal document is extensive and thorough. As I write, I am prepared to appear before the Board. However, The Board will require time to study my appeal and decide whom they wish to interview at my hearing. When this is accomplished, a hearing should be scheduled at the earliest practical date. As Personnel Director, I respectfully suggest that you ask the Board members when they are ready to proceed and act accordingly. ****** At this point, I became convinced there was something wrong in the City of Fort Lauderdale that was a matter of grave public concern worthy of City Commission attention. My experiences, in my opinion, establish that the system is stacked against employees unwilling to ignore wrongdoing and thus the Public’s best interest is not being served. I decided to make the Commission aware of this situation and wrapping myself in the protective mantle of my job description, I drafted the letter that follows. However, before sending it, I asked Tom Andrew, President of the - 77 -
Riverside Park Residents’ Association and a close friend, to review it. Upon reading my letter, Tom was concerned about the political fallout from speculating about the existence of a “Public Service Mafia” and advised me to edit my letter accordingly. I heeded Tom’s advice and the first letter that follows is the actual letter sent to the City Commission. Following, is the verbiage deleted from the original document. To: Mayor Jim Naugle Vice Mayor Cary Keno Commissioner John E. Aurelius Commissioner Carlton B. Moore Commissioner Jack Latona
Reference my grievance letter, my appeal to the Civil Service Board, and all associated attachments. My experiences as a public servant for the past twelve years, have led me to believe that having the management staff of the City of Fort Lauderdale perform their own hiring function, has created a situation not in the best interest of Fort Lauderdale and its citizens. This being so, I offer the following for consideration. The Personnel Director should report directly to the City Commission. His position should not fall within the Civil Service, as should be the case with his subordinate employees. All Civil Service positions should be filled through competitive exams and the initial screening of applicants accomplished by an independent outside contractor. The final screening of applicants should be accomplished by a citizen review board made up of volunteer citizens and the supervisor of the position being filled. This supervisor, the only city employee on the board, should have one vote. The board's function should be to narrow the field of candidates down to a handful from which the supervisor of the position being filled will choose his new subordinate. In my opinion, allowing the management staff of the City of Fort Lauderdale to perform their own hiring function has created a situation not in the best interest of the City of Fort Lauderdale and its citizens. I respectfully submit that the City Commission consider this matter and, if in agreement, take steps to rectify the situation. ****** The deleted verbiage from the above letter read as follows: After twelve years as a public servant, my perceptions are such that I believe a "Club" exists within the public service of this Nation, that for a lack of a better name, I call the "Public Service Mafia". The rules that govern the behavior of Club members are: Rule #1 - We have a good thing here. Therefore, above all other considerations, our first order of business is to help and protect each other. - 78 -
Rule #2 - Our duties and responsibilities will be exercised only to the extent that Rule #1 is not violated. Rule #3 - The public interest is subservient to Rule #1. Rule #4 - No one can be a member of the Club unless they are willing to practice fraud or deception especially in keeping with Rule #1. Rule #5 - Only club members are promotable. Does a hidden organization within the public service really exist? The answer to this question is a matter of perception. However, whether a Public Service Mafia exists or not is not important. The real issue is the fact that too many individuals in positions of authority subscribe to and follow a code of conduct embracing the five rules listed above. I believe this problem is prevalent throughout our Nation and is a prime contributor to waste and inefficiency in government. The truth of the matter is that, irrespective of whether an individual within the public service personally subscribe to the rules of the Club, almost every public servant knows that not respecting these rules will have serious consequences on their career. This lesson has been learned the hard way, time and time again, by many of our more capable and competent people. Is the existence of the Club that harmful? Loyalty is a positive attribute and certainly, it can be argued that the rules of the Club promote harmony and a continuity of leadership within the public service. This is true. However, the kind of harmony and continuity of leadership we are talking about is only in the best interest of Club members and not the public they serve. Furthermore, the rules of the Club are in direct violation of the Personnel Rules and not in keeping with the precepts of the City Charter. In my opinion, the harm done by adherence to Club rules is far-reaching and severe. First of all, an atmosphere of oppression is created where individuals become afraid to speak out on topics of concern for fear of offending a Club member. Secondly, it creates and environment where corrupt Club members can operate with minimal fear of exposure. Finally, it ensures that men of mediocrity and questionable integrity advance ahead of those who are honest and capable. Does a Public Service Mafia exist within Fort Lauderdale? If it does, we must break its back. If it does not exist, then steps should be taken to ensure that it never would. This can be accomplished by separating the hiring and promotional process from the City's management structure. ****** After writing the Commission, to focus more clearly upon my issues of greatest concern, I filed three additional appeals to the Civil Service Board citing, what I believed to be, numerous misinterpretations and misapplications of the Personnel - 79 -
Rules. Writing these additional appeals did nothing to change my perception that Mr. Panoch was doing everything he could to prevent my appeals from being heard by the Civil Service Board, so I decided to go above his head and wrote the following letter to George Hanbury and Bruce Larkin, Mr. Panoch’s immediate supervisor. Mr. Panoch claims he has a right to seek and obtain the advice of legal counsel before he responds to my request to schedule Civil Service Board hearings for my four appeals. The Personnel Rules state that the Personnel Director will be responsible for scheduling an appeal hearing at the earliest practical date. Nowhere in the Personnel Rules does it give the Personnel Director the latitude to consult with his attorney before scheduling an appeal hearing. In my opinion, Mr. Panoch is unnecessarily delaying my appeal hearing without just cause and he is doing so in violation of the Personnel Rules. Am I correct in assuming that if Mr. Panoch's attorney advises him that an appeal hearing addressing the concerns in question are not in his best interest, he will refuse to schedule the hearing? Am I also correct in assuming that if Mr. Panoch's attorney advises him to violate the Personnel Rules and the provisions of his Job Description, he will do so? Let's bring this into focus from a different point of view. Suppose during the Budget Development Process, I am late submitting required information to the Budget Office. Would I be allowed to beg the issue by saying that the reason I am late is because I am in consultation with my attorney? What would happen to me as a City employee if I told the Budget Director that I am not turning in the Public Services budget this year, because my attorney advised me not to? Gentlemen, I think the answers to these questions are obvious. I submit that these examples apply directly to the situation I find myself in with Mr. Panoch. Mr. Panoch is welcome to consult with his attorney anytime he wishes. However, he does not have the right to delay my appeal while he does. I now look to you Mr. Larkin, as Mr. Panoch's immediate supervisor, and to you Mr. Hanbury, as the City Manager, to rectify this situation. ****** The above letter apparently received Mr. Hanbury’s attention because on March 30, 1994, I received an E-Mail from John Panoch informing me that he would commence scheduling my appeals the following day. It was also time to take the wind out of my sails. On April 1, 1994, I received the following informational meeting letter written by Bob Nielsen. I thought the date of this letter quite appropriate. This is to notify you of charges made against you as follows, and to provide you with the opportunity an informal respond to these charges: You neglected to adhere to the following City policy: Written materials including memoranda, letters and reports should not be distributed to the City Commission or sent to any individual member of the Commission by a department head or any - 80 -
member of his/her staff. All written materials intended for City Commission distribution should be directed to the City Manager's Office and not sent or delivered directly to any member of the City Commission. You also violated Personnel Rule XII, Section 4 F (3), "Expression of a personal, work related grievance, or bypassing official documented grievance procedures, when such grievance is not a matter of public concern" and Rule XII Section 4H, "Attempting to induce any officer or employee of the City to act in violation of any rule, regulation or policy." Specifically, on March 18, 1994, you mailed a letter to the elected officials of the City of Fort Lauderdale and to the City Manager transmitting your Civil Service Appeal (s) and your request to revise the City Charter to have the Personnel Manager report directly to the Commission. An informational meeting will be held in the small administration conference room on Friday, April 8, 1994 at 11:00 AM to review these charges and to provide you with the opportunity to respond to them. In lieu of this meeting, you may respond to these charges in writing no later than April 8, 1994. You have a right to bring a representative to this meeting. If the representative is an attorney, you must notify the department immediately so that arrangements can be made to have a city attorney present. Please be advised that you are not required to respond to these charges; however, if you do not wish to do so, the department may recommend disciplinary action based upon the information available. You will receive written notification as to the outcome of the meeting. ****** I responded to the informational meeting letter as follows: I consider the charges enumerated in the referenced letter to be without substance. In addition, in consideration of the fact that I presently have four appeals pending before the Civil Service Board concerning this matter, I am concerned about the timing of your informational meeting letter. You maintain I neglected to adhere to City Policy 3 (b). Be advised that when I mailed my letter of March 18, 1994, I did so in accordance with City Policy 3 (c), which states that although the channels of communication between the Commission and administrative officers should be through the City Manager, especially in matters of policy or other areas of importance, circumstances do arise where this procedure cannot be followed. During the Grievance Committee phase of my 1988 grievance, Dick Brossard, took me to task for the very same reason you have. My response to Mr. Brossard, applies equally well - 81 -
to the present situation. I believed circumstances had arisen where City Policy 3 (c) should be followed instead of City policy 3 (b). This option is established within the policy and procedures manual for a very good reason. If a lower level manager believes that his superiors are not behaving responsibly in matters of importance, then he has a duty and obligation to bring notice of that fact to higher authority. Not allowing this departure in standard procedure could lead to serious abuses of power on the part of those in positions of authority. My letters of March 10 & 18, 1994, raise serious issues of grave public concern. These issues were brought to the attention of Mr. Kisela in several meetings prior to mailing my March 10th letter and similarly, to the attention of Mr. Hanbury in two separate meetings with Mr. Kisela in attendance. In my opinion, the results of these meetings were unsatisfactory, thus the need and ample justification for invoking City Policy 3 (c). Mr. Brossard’s charges against me concerning City Policy 3 (b) were dropped and, similarly, so should yours. You maintain I am guilty of expressing a personal, work-related grievance, or bypassing officially documented grievance procedures when such grievances are not matters of public concern. My appeal to the Civil Service Board is not a grievance and is not a part of an officially documented grievance procedure. My grievance procedure was settled, not to my satisfaction, in 1988. The procedure I am involved in now is an appeal to the Civil Service Board where I claim violations of the personnel rules have occurred and are occurring. My letter of March 18, 1994, supported by my appeal document of March 10, 1994, claims that the Personnel Division of the City Of Fort Lauderdale, contrary to the provisions of the City Charter and the Personnel rules, has acted in a manner that is not in the best interest of this city and it citizens. If that is not a matter of public concern, then you are obligated to tell me what is. You claim that I have attempted to induce an officer or employee of the City to commit an act in violation of a rule, regulation or policy. I am at a loss to respond to this charge because you have neglected to identify which rule, regulation or policy that I have attempted to induce an officer or employee of the City to violate. I also find it hard to understand how my identification of rules that have been violated and a suggestion as to how to prevent similar violations in the future can be construed as an inducement to violate other rules. As stated previously, I presently have four appeals pending before the Civil Service Board. These appeals are extraordinary and involve matters of grave public concern. I acknowledge your right as my supervisor to hold an informational meeting at any time you deem appropriate and I hope that my responses to your charges have satisfied your concerns. I believe it incumbent upon me to advise you that the issues brought forth in my appeals rightfully belong before a Civil Service Board. It is their ultimate responsibility to decide if rule violations have occurred and if these violations are of a public concern. This being so, - 82 -
in my opinion, any further action on your part in regard to the disciplinary procedure set in motion by your informational letter, prior to my Civil Service Board Hearing, could be construed as an attempt on your part to usurp the authority of the Civil Service Board. An act in violation of the Personnel Rule that states, “Abusive use of any portion of this subsection rule by an employee or official in order to control, suppress or threaten free discourse or discussion by any other official or employee, when such discourse or discussion is a matter of public concern and pertains to another employee, public official, member of the public or any written city or departmental policy, rule or official action. I strongly advise that you govern yourself accordingly. ****** How influential I am as an advisor to city management is made clear by the following letter of reprimand issued on April 18, 1994. You are hereby issued this letter of reprimand because of deficiencies in performance and/or conduct. Specifics of such deficiencies are as follows: You neglected to adhere to the following policy from the city’s PSM, 3 (b), written materials including memoranda, letters and reports should not be distributed to the City Commission or sent to any individual member of the Commission by a department head or any member of his/her staff. All written materials intended for City Commission distribution should be directed to the City Manager’s Office and not sent or delivered directly to any member of the City Commission. You also violated Personnel Rule XII, Section 4H; Attempting to induce any officer or employee of the City to commit an act in violation of any rule, regulation or policy. Specifically, on March 18, 1994, you mailed a letter to the elected officials of the City of Fort Lauderdale and to the City Manager transmitting your Civil Service appeal(s) and your request to revise the City Charter to have the Personnel Manager report directly to the Commission. Another infraction of this nature may result in further disciplinary action or dismissal from the city service. ****** Subsequent to being reprimanded, John Panoch informed me that my appeal hearing was scheduled for April 22, 1994, at 9:00 AM. However, I learned from Lindsey Payne, the attorney that would represent the City during my appeal, that the April 22nd hearing was not my appeal hearing, but rather a hearing to determine if the Board has jurisdiction over my appeals. In response to this, I wrote the following letter to Don Streeter, Civil Service Board Chairman. - 83 -
It was my understanding that my four appeals to the Civil Service Board would be heard on April 22. 1994. On April 12th, Lindsay Payne informed me that the hearing on April 22nd is not to hear my appeals, but being held to determine if the Civil Service Board has jurisdiction over my appeals. This fact was confirmed in a conversation that same day with Kenneth Mikos, Civil Service Board Attorney. Mr. Mikos also informed me that, in his opinion, the Civil Service Board did not have jurisdiction over my appeals because no action has been taken by the City that can be construed as being to my detriment. Mr. Mikos, also said his recommendation to the Board in this regard, would be made in writing, but this document would not be available until it is delivered to the Board on the day of my appeal. Not having Mr. Mikos’ written recommendation available places me at a disadvantage. However, despite this, I am compelled to respond to this development in writing. I believe Mr. Mikos is basing his opinion and recommendation on the fact that the Personnel Rules state that the Civil Service Board shall make the final decision of an appeal and if the final decision is in favor of the employee, the employee shall be reinstated without the loss of pay and benefits. Because this section of Code mentions only reinstatement without the loss of pay and benefits as a remedy for a successful appeal, Mr. Mikos has concluded that the definition of “detriment” includes only dismissal or a loss in pay and benefits. According to Mr. Mikos, I have not suffered any of these sanctions, thus he concludes that the Board has no jurisdiction in the matter. While I understand the reasoning behind Mr. Mikos’ position and recommendation, I also believe he is wrong for a multitude of reasons. In my opinion, a hearing by the Civil Service Board to determine if the Board has jurisdiction over my appeals is a violation of the Personnel Rules and City Charter. In principal, nothing should stand in the way of an employee’s right to a Civil Service Board hearing at the earliest practicable date if he believes that a Personnel Rule has been misinterpreted or misapplied to his detriment. Furthermore, a hearing to determine if an employee has a right to a hearing is, in reality, an appeal to the Civil Service Board by the City of Fort Lauderdale, not to hear an appeal. There is no provision, implied or otherwise, for a procedure of this nature within the City Charter or Personnel Rules. The Civil Service Board is tasked with hearing appeals from employees who believe they have suffered harm because of the improper actions of their superiors, not to hear appeals from city management with the intent of denying an employee his right to a hearing, thus compounding that harm. The Personnel Rules state that any regular employee, who claims that a personnel rule or rules have been applied or misinterpreted to his or her detriment, may appeal to and be heard by the Civil Service Board. This paragraph of the Rules clearly establishes that it is an employee’s belief & claim that necessitate an appeal hearing. The judgment as to whether the claim has merit, whether or not the misapplication or misinterpretation of the rule has been to the employee’s detriment, are issues properly addressed by the Board as part of their deliberations concerning the merits of the appeal, not separately an issues to provide false justification for denying an employee his or her rights. - 84 -
The exact wording of Personnel Rule XI, Section 9 A, that applies is “Any regular employee, who is suspended, dismissed, demoted or claims that a personnel rule or rules have been improperly applied may appeal to the Civil Service Board” etc. The intent and meaning of this wording should be clear to anyone. To wit, if you are suspended, dismissed, or demoted you may apply to the Civil Service Board for a hearing. In addition to applying for a hearing for these reasons, an employee may also do so if he believes a personnel rule has been improperly applied or misinterpreted to his or her detriment. Subsequent wording does provide for a specific remedy for unfair suspension, dismissal, or demotion and does not provide one for improperly applied or misinterpreted rules. However, this is not justification for concluding that the Civil Service Board has no jurisdiction over improperly applied or misinterpreted rules that do not result in suspension, dismissal, or demotion. The City Charter, states that it is a duty of the Civil Service Board to review any personnel action, which appears to be arbitrary, capricious or illegal. No mention of a remedy for improperly applied or misinterpreted rules is made because there are so many rules and it is not possible to delineate a specific remedy when the nature of the misapplication or misinterpretation is not known. If the intent of the Rules were to confine sanctions detrimental to an employee to suspension, dismissal, or demotion, then why are the words “or claims that a personnel rule has been improperly applied or misinterpreted to the employees detriment” included at all. This paragraph would make perfect sense if these words were eliminated. In fact, it reads much better without them. In my opinion, they were specifically included for the purpose they serve, to prevent tyranny in the workplace. I find it hard to believe that a Civil Service Board Attorney would maintain that as long as an employee is not suspended, dismissed, or demoted, he or she can be subjected to any manner of abusive administrative procedure in violation of the City Charter and Personnel Rules and have no recourse before the Civil Service Board. A state of affairs such as this is far more appropriate within Cuba or China, but certainly not in Fort Lauderdale or anywhere else in this Nation. Who is right in their interpretation of the Personnel Rules, Mr. Mikos or me? It is an established legal principle that if there is a difference of opinion as to the application of a law, then the best course of action is to choose the legal option that is in keeping with the overall intent and purpose of the law under examination. The Civil Service System, as established, is supposed to be a system of personnel administration based on merit principles and scientific methods that govern the appointment, promotion, transfer, layoff, demotion, dismissal, suspension, removal and discipline of employees. It provides for advancement on the basis of skills knowledge and ability, and calls for fair and equitable treatment of employees, fair and equitable compensation, high standards of integrity and conduct, concern for the public interest, efficient and effective use of the city work force, protection of employees from arbitrary action, personal favoritism or political coercion, and protection of employees against reprisal for lawful disclosures of information. In my opinion, as far as my situation is concerned, the management staff of the City of Fort Lauderdale has dragged into the gutter and torn to shreds every one of these provisions specified within City Charter.
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This is the true focus of my appeals and Mr. Mikos would have us believe that this is not an issue deserving Civil Service Board attention. According to the personnel rules, the Civil Service Board has the duty and power to: Hear employee appeals. Represent the public interest in the improvement of personnel administration in the city service. Advise the Commission, City Manager, and Personnel Director on problems concerning personnel administration. Advise and assist the Personnel Director in fostering the improvement of personnel standards in the city service. Make any inquiry, which it may consider desirable concerning the administration of personnel in the city service and to review any personnel action, which may appear to be arbitrary, capricious or illegal and make recommendations to the Personnel Director with respect thereto. Make annual reports and such special reports, as it considers desirable to the Commission and City Manager concerning personnel administration in the city service and recommendations for improvement therein. I am curious as to how Mr. Mikos reconciles the duties and powers of the Civil Service Board as described above with his recommendation that the Board has no jurisdiction concerning my four appeals, which, in my opinion, result from the epitome of arbitrary, capricious, and illegal personnel actions. Mr. Mikos maintains that I have not been suspended, dismissed, or demoted. Technically speaking he is correct because I have no idea what the results of the PD-13 process will be for the position of which I have been forced. However, my former position in the Public Services Department was that of Financial Administrator. As such, I reported directly to the Department Directors and supervised only supervisory personnel. My situation is now such that I report to a Division Manager, have only non-management personnel reporting to me and as Supervisor of the Department’s Financial Section, will be forced to perform some of the duties of a Senior Accounting Clerk, the lead worker of this Section that has been eliminated because I am now its supervisor. Irrespective of whatever salary and management level I hold in the future, this is a demotion in status and standing, which I believe is to my detriment and embarrassment. In 1983, I stopped this City from dumping raw sewage into the North Fork of New River. Because of this action and because of my grievance filed in 1988, which accurately identified millions of dollars in waste and inefficiency, I believe I have been blacklisted within the public service of this Nation and barred from ever being considered for promotion within the - 86 -
City of Fort Lauderdale. Furthermore, I also strongly believe that if I did nothing, I would be demoted to have my experience serve as a warning to other employees that a terrible price will be paid by those who have the courage and integrity to stand up for what they believe is right and in the best interest of our citizens. At this point, my only hope as a public servant is to appeal to a Civil Service Board that embraces the provisions and principles that were placed in the City Charter by our founding fathers. I pray for my sake, for the sake of my follow employees, and for the sake of this city and its citizens that you and the other members of the Civil Service Board do not let us down. There is too much at stake for this to happen. In conclusion, the Civil Service Board hearing scheduled for Friday, April 22nd, in my opinion, is illegal and in violation of the Personnel Rules. I did not request a hearing of this nature and would like to know who did. I would also like to know by what and whose authority this meeting is being held. In my opinion, this meeting is an attempt by those in positions of authority to enlist the aide of the Civil Service Board to cover-up serious wrongdoing in the personnel administration of this City that is of grave concern to its citizens. Therefore, I respectfully request that this hearing be canceled and that the hearings requested by me be scheduled as soon as possible. ****** Ignoring my request, on April 22, 1994, the Civil Service board met and issued the following ruling. CIVIL SERVICE BOARD CITY OF FORT LAUDERDALE, FLORIDA RE: The Appeal Requests of ALAN ADASCHIK,
FINAL ORDER THIS CAUSE, having come before the Board on Friday, April 22, 1994, and the Board having reviewed the information presented by both the City and the Appellant in accordance with the guidelines set forth in the Charter of the City of Fort Lauderdale, Florida, and the Personnel Rules; and having considered same and being otherwise fully advised in the premises, the Board declined to hear the five (5) appeal requests dated March 10, March 22 [two], March 23, and April 17, 1994, of Mr. Adaschik as filed under Article VI, Section 6.04, Subsection (d) of the City Charter.
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Chapter Eleven My Discretionary Appeal
It was sobering to learn that an employee of the City of Fort Lauderdale, who claimed that a Personnel Rule had been misapplied or misinterpreted to his detriment, had no recourse before the Civil Service Board, unless he had been demoted, dismissed, or suffered a loss in pay. In other words, the situation was such that City management could misapply or misinterpret rules as they saw fit and were not accountable for their actions as long as they did not demote or dismiss anyone. The change to the City Charter creating this state of affairs was made in 1984, in keeping with principles embraced by the Federal Civil Service Reform Act of 1978. The Federal Civil Service Reform Act of 1978, a model for the rest of the Nation, the purpose of which is to provide the people of the United States with a competent, honest, and productive Federal work force and improve the quality of the public service by ensuring that selection and advancement of employees be on the basis of relative ability, knowledge, and skills, in fair and open competition, does none of these good and noble things because, similar to the situation in Fort Lauderdale, the Act fails to provide for Merit Systems Protection Board authority over the application and interpretation of Civil Service rules by management. Thus, instead of promoting and developing a Federal Civil Service of citizens responsible to citizens, the Act provides management with the power to develop an elitist Federal Civil Service, accountable only to itself, that will blindly support any agenda embraced by them. The changes made to the Fort Lauderdale’s City Charter in 1984, were never incorporated into the Personnel Rules. This gave the Civil Service Board the option of adhering to either document. In ruling, the Board chose to defer the Charter because it was the superior document and voted 2 to 1 against allowing me to have a hearing. The one vote in my favor was from Don Streeter, Chairman of the Board. After the conclusion of my hearing, Board member Peg Buchan, explained that she only voted against a hearing because of the technical constraints placed on the Board by the 1984 changes to the City Charter, but felt my position was well taken and deserving of a hearing. I had invited Tom Andrew, a close friend and President of the Riverside Park Resident’s Association in my neighborhood, to attend the April 22nd hearing. After the Civil Service Board made their decision, Tom suggested that because the Board ruled not to hear my appeals in their appellate capacity, was no reason for them not to hear my appeals under their discretionary authority. Even with the revisions to the City Charter, the Board still was responsible for monitoring and improving the system of Personnel Administration within the City of Fort Lauderdale and held the power to investigate and rectify personnel action that was arbitrary, capricious, or - 88 -
illegal. The actions of management that were the focus of my appeals, in my opinion, were all of these things. Don Streeter had voted to hear my appeals and Peg Buchan only voted against a hearing because of the technical constraints place on the Board by the City Charter. Surely, if I asked the Board to review my situation under their discretionary powers, they would agree to do so. With this in mind, I wrote Don Streeter the following appeal letter. This time, I included an item of concern not mentioned in my previous appeal letters that I intended to raise during my hearing. On April 22, 1994, the Civil Service Board met to decide if they would hear my appeals. The vote taken under the Board’s appellate capacity was 2-l against a hearing. However, no decision was made whether the Board would hear appeals under its discretionary powers. Because I believe my five appeals are matters of grave public concern that touch upon matters seriously affecting the integrity of the City's management work force as well as the effective and efficient operation at the Public Services Department. I am now asking the Civil Service Board to consider hearing my appeals under its discretionary authority. If the Board agrees, for the purpose of expediting this procedure, I propose not examining events that occurred before settlement of my grievance in 1988. If the Board had voted to hear my appeals at the April 22nd meeting, it was my intention to discuss several examples of how the effectiveness and efficiency of the Public Services Department has been compromised. I will take the liberty of providing you with one example in this letter. Recently, the City Manager recommended to the Commission to extend the All Service contracts a third time, at an annual cost of $3,544,009. In my opinion, I was intentionally excluded from the decision process concerning this recommendation because I had objected to this course of action when the second extension was considered in 1992. I now believe that the decision to extend these contracts a third time was made for reasons other than merit. In several transmittals written to City officials, I establish that the terms, conditions, and specifications of the original contracts had changed significantly, thus mandating rebid. I also demonstrated that an overstated tonnage quoted in the large contract has enabled All Service to enjoy windfall profits. In response to my transmittals, Mr. Kisela scheduled a meeting between Hugh Barnhart, General Services Director, himself and me, to discuss my objections to the third extension. Mr. Barnhart sponsored the second extension of the All Service contracts and now was taking the lead to extend these contracts a third time. This was curious, because he was going to retire on April 1, 1994. Why would Mr. Barnhart take it upon himself to pursue a third extension, eleven months before the expiration of the second extension period, when he would be retired when this last extension period commenced? During our meeting, Mr. Barnhart maintained that he was unaware about tonnages being overstated in the bid specifications of the five-year contract. Despite this revelation and all my other objections, both Mr. Kisela and Mr. Barnhart were not moved to change their decision. Upon returning to Public Services, I provided Mr. Kisela with a copy of a 1993 transmittal addressed to Mr. - 89 -
Barnhart, informing him about the tonnage overstatement in the bid specifications of the five-year contract. Shortly after my meeting with Mr. Kisela and Mr. Barnhart, I discussed the All Service contract extension with Hector Castor, Assistant Public Services Director. With his concurrence, I contacted Southern Sanitation Service and asked them if they would underbid the proposed extension price. Their response was that if these contracts were rebid, more than one company would underbid that price. I provided this information to Mr. Kisela by E-Mail and his response was to ask me, "Who asked you to contact Southern Sanitation”. This response led me to believe that Mr. Kisela did not want me to contact Southern Sanitation and took issue with my doing so. In consideration of the effort expended to get Mr. Kisela to recognize the obvious need to rebid the All Service contracts, I am left to conclude that he is adamant about not allowing anything to sway him from the course of action he has chosen. What conclusion may be drawn from these events? In my opinion, Mr. Kisela is adhering to a hidden agenda not in the City’s best interest. If this is true, it follows that another reason I am not being allowed to return to Public Services and assume my former position is because, doing so would give me the authority to monitor and investigate the Department’s financial affairs. I believe something is wrong with the personnel administration of this City as well as administration of the Public Services Department. These undesirable situations reinforce each other and are having a negative impact on efficient operation of Public Services and the morale of its management staff. Civil Service Board attention is required to rectify this situation. You have voted not to hear my appeals in your appellate capacity because of your desire to limit exposure to frivolous claims of wrongdoing or rule violations. I understand the reasoning behind this decision. However, my claims are not frivolous, but instead, matters of grave public concern. Admittedly, if you agree to hear my appeals within your discretionary capacity, you will have a difficult task before you. However, when finished, I am sure you will remember this time as being one of your finest hours. Please do not let me down, but more important, do not let down the City of Fort Lauderdale and its citizens who look to you to protect the ideals embraced within our City Charter. I do hereby make formal request to the City of Fort Lauderdale’s Civil Service Board to hear my five appeals at the earliest practicable date under their discretionary authority. ****** Included with the above letter was five documents written and copied to numerous City Officials, analyzing the questionable aspects of the All Service Contracts, that support the conclusions made and recommend rebid. The following letter’s purpose is to apprise Don Streeter, Civil Service Board Chairman, about the circumstances related to the letter of reprimand that I had received.
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The Personnel Rules state that a written or oral reprimand, unless accompanied by a suspension, dismissal or demotion is not appealable. Therefore, the topic of this letter is not appealable to the Civil Service Board. However, because this subject became a topic of discussion at my appellate hearing on March 22, 1994, I feel compelled to write to the Board and offer some insight in the matter. As you recall, during the course of my hearing, Mr. Mikos remarked that the issues contained within my appeal more properly belonged before the City Commission. My response to this remark was that I had brought this matter to the attention of the Commission, but was reprimanded for it. Upon saying this, both Lindsey Payne and Greg Kisela jumped to their feet in protest, explaining that this was not the case. In contrast to the protestations of both Ms. Payne and Mr. Kisela, my letter of reprimand clearly states that I am reprimanded for writing directly to the City Commission about an issue related to my appeal and for violating the Personnel Rule that prohibits attempting to induce an officer or employee of the City to commit an act in violation of a rule, regulation, or policy. I find my being reprimanded in this manner both disturbing and illuminating. I also believe this serves to demonstrate why it is so important for the Civil Service Board to hear my appeal in its discretionary capacity. In my informational meeting letter from Robert Nielsen, Process & Informational Control Manager, I am charged with violating City Policy 3 (b) by writing directly to the City Commission, charged with expressing a personal work-related grievance, when such grievance is not a matter of public concern and with attempting to induce an officer or employee of the City to commit an act in violation of a rule, regulation or policy. My response to these charges was reasonable and, in my opinion, all charges should have been dropped. Unfortunately, only one was; expression of a work-related grievance, not a matter of public concern. In my opinion, by dropping the charges against me concerning expression of a work-related grievance not of public concern, the management staff of the City of Fort Lauderdale has acknowledged that my appeal and the issues addressed in it are matters of public concern. Furthermore, at the same time they acknowledge this truth, they take steps to keep these issues from going before the Commission by wrongfully invoking City Policy 3 (b), when being a matter of public concern clearly places my actions under the protection of City Policy 3 (c). Finally, adding insult to injury, City management concludes that because I wrote to the City Commission recommending a change to the City Charter, I was guilty of attempting to induce other employees to commit an act in violation of a rule, regulation or policy. How anyone can conclude that recommending a change to the City Charter is tantamount to advocating violation of the Rules is beyond comprehension. In my opinion, the motivating factors that fueled my written reprimand are not that City Management is interested in applying progressive discipline to an employee who wrongfully erred, but instead is an illegal and self-serving attempt to suppress further action on my part - 91 -
that could result in reform of a faulty system of personnel administration that has allowed City Management to violate the rights of employees and act in a manner contrary to the best interest of this City and its citizens. If this is true, then it follows that management is guilty of the abusive use of the Rules to control, suppress or threaten free discourse or discussion when such discourse of discussion is a matter of public concern. My present Job description states that I am responsible for evaluating, recommending, and coordinating improvements to management control systems, productivity work methods, policies, procedures, and city ordinances. The Personnel Rules and City Charter are established by City ordinance. Therefore, it is logical to conclude that by reprimanding me for recommending a change to the City Charter, I have been reprimanded for fulfilling the responsibilities and duties of my official Job Description. However, according to the Civil Service Board and City Charter, an employee of the City of Fort Lauderdale may be punished for doing his job properly, provided that punishment does not result in suspension, dismissal, or a reduction in rank or pay. Furthermore, irrespective of taking me to task for doing my job, by reprimanding me in this convoluted manner, I believe city management is violating my first amendment right of free speech. In my opinion, something is wrong within the City of Fort Lauderdale and if this Civil Service Board refuses to hear my appeals in its discretionary capacity, it will give official sanction to this deplorable state of affairs. Furthermore, by doing so, the Board will have turned its back upon a grievously wronged employee, but more shamefully, not fulfilled its duties and responsibilities as defined by the City Charter. Please do not let me down and please do not let down this City and its citizens. ****** On June 6, 1994, the Civil Service Board met to decide if they would hear my appeals under their discretionary authority. The minutes of this meeting, as published, are as follows. Meeting called to order at 3:36 p.m. by Mr. Streeter on the above date. This portion of the meeting began with Mr. Mikos framing the question as to whether or not (under the present City Charter and Personnel Rules) the Board retains the power to hear discretionary appeals. The history of Charter changes was discussed and copies of pre-1984 Charter provisions, post-1984 Charter revisions and current Personnel Rules were distributed. The pre-1984 Charter provisions were discussed, particularly the three provisions under Duties of the Board. The applicable provision concerned the duty to make any inquiry the Board may consider desirable regarding personnel administration in the City Service and make recommendations to the Personnel Director, City Manager and City Commission in regard thereto. The Charter was revised in 1984 and the language containing the provisions above was specifically deleted. - 92 -
Mr. Mikos advised that the Personnel Rules have not been revised to remove the pre-1984 duties/power although he believed that it was the intent that the Rules be consistent with the Charter. Nevertheless, the Board Attorney believed that the Rules made discretionary inquiries possible if the Board considered an inquiry desirable... it was up to the Board. (A lengthy discussion ensued concerning formal appeals versus inquiries.) Ms. Payne advised that the pre-1984 Charter wording and current Personnel Rules wording were virtually identical, and it was the City's position that jurisdiction is not retained with the Board because the Charter revisions specifically amended those duties/powers out of existence. Additionally, it was noted that the post 1984 Charter gave additional duties to the Board, which were not contained in the current Rules. The point being made was that the Charter is controlling, not the Personnel Rules (Resolutions). Copies of 1984 memos and letters were distributed. Copies of the minutes of Mr. Adaschik's 1988 Civil Service Board appeal were distributed. It was noted that the Board has taken the position in the past that if no Personnel Rule violation to the detriment of an employee occurred, then the Board had no jurisdiction. Mr. Adaschik stated that the City has rules and either, you follow them or not, that the rules apply to employees and managers, that there is no accountability and that there is no recourse. Further, Mr. Adaschik advised that wording of the Charter evidently have no meaning or purpose when there have been grievous violations of the Personnel Rules by upper level management of the City. Mr. Adaschik advised that he has been black listed in the City and nationally. Mr. Adaschik summarized by stating that he believed that the management of the City is not accountable to anyone. Ms. Payne advised that Mr. Adaschik has many remedies including Circuit Court, Federal Court, EEOC and so forth. The issue before the Board is whether the Civil Service Board should be determining whether or not Mr. Adaschik's rights have been violated. Ms. Payne advised that this was not the purpose of the Board and that Mr. Adaschik has many other remedies available to him. (A long discussion ensued mostly, which is inaudible on tape.) Mr. Mikos states that an alleged Rule having been misapplied needs to have a showing, a punitive action attached to it. The question as to whether, Mr. Adaschik's rights have been affected was resolved by the Board at the last meeting. However, Mr. Mikos felt that the Board might make an inquiry. He felt that the Board did not have to make an inquiry, but that the Board had the power to do so. The question is discretionary whether the Board wants to do it. (A discussion ensued mostly, which is inaudible on tape.)
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Mr. Mikos stated that the Charter does not conflict with the Rules and therefore, an inquiry could be conducted. Ms. Orshefsky felt that the Board's concern should be which rules apply, what action occurred and what the detriment was. Mr. Adaschik stated that he was requesting an inquiry to make recommendations. He wanted an inquiry to determine if rules have been violated. Mr. Mikos summarized by stating that the Board had the discretion to listen, make an inquiry and make recommendations. Did the Board want to do this or not? Ms. Orshefsky requested a date by which the Personnel Rules could be brought into conformance with the Charter. Mr. Panoch advised that the drafting aspect of revisions could be made prior to the next Civil Service Board meeting. Mr. Mikos asked Mr. Adaschik if he was asking that the Board hear, in its discretionary capacity, his four (4) matters as an inquiry. Mr. Adaschik stated that he should be on the fast track that his boss should be his employee and report to him (Adaschik). He further stated that there is no reason for managers to act responsibly. Mr. Mikos felt that Mr. Adaschik was asking the Board to review performance ratings and all kinds of other personnel matters and again stated that it was discretionary as to whether the Board wanted to hear it. Ms. Orshefsky inquired of the Personnel Director as to remedies Mr. Adaschik might have. Performance Rating Review panels, grievance procedures, possible Circuit and Federal Court actions, EEOC complaint procedures and so forth were discussed. Ms. Orshefsky made a motion: "Whether we believe we can make an inquiry as requested somehow in Mr. Adaschik ' s May 2nd letter and his statements made today. I would move that this Board consider the statements made and the contents of the Charter as limiting our ability to make inquiry other than in the specific items identified in Paragraph C, (1), (2), (3) and (4) of Section 6.04 of the Charter. It would not include the general inquiry." Ms. Buchan seconded the motion. Yeas: Debbie Orshefsky, Peg Buchan and Don Streeter. Nays: None. Mr. Streeter then called for a vote on Mr. Adaschik's request to appeal as indicated on the agenda, and Ms. Payne clarified that Mr. Adaschik was not appealing but requesting a discretionary inquiry. Referring to the last paragraph in Mr. Adaschik's letter of May 2, 1994, Ms. Orshefsky asked Mr. Adaschik is there some other matter for an appeal within the parameters of the Charter, - 94 -
Section 6.04, Subparagraph D that he would like to put before the Board. Mr. Adaschik stated not at this time. Ms. Buchan then asked, “so Mr. Adaschik's request for an inquiry is withdrawn?” Mr. Adaschik responded he still had hopes that the Board would decide to make an inquiry to which Mr. Mikos restated the Board's decision not to, based on the fact it doesn't have the right to make inquiry. Mr. Adaschik said his request for an inquiry would stand. Mr. Mikos then stated there would be no action by the Board in light of no dismissal, demotion, reprimand, or the like. There was no Attorney’s Report or Audience Concerns. At 4:53 P.M., Mr. Streeter adjourned the meeting. ****** Thus concluded my attempt to have the Civil Service Board address the problems I was experiencing under the Personnel Rules within the City of Fort Lauderdale. Don Streeter, the Board Chairman, voted to hear my appeals when I approached the Board under their appellate authority, yet did not when I did so under the Boards discretionary authority. Why? Peg Buchan voted against hearing my appeal under the Board’s appellate authority because of technical considerations and felt I had a strong case that deserved a hearing. Why did she vote against hearing my appeal under the Board’s discretionary authority? I have no answer to these questions. The Personnel Rules state that if an employee is suspended, dismissed or demoted because of improperly applied or misinterpreted rules, he or she has recourse before the Civil Service Board. This rule seems to provide protection for employees against arbitrary and capricious actions by management, but like the Florida Whistleblower law, it fails in this regard. All this rule establishes is that if management wants to take arbitrary and capricious action against an employee, they have to be clever as to how they proceed. For example, the City of Fort Lauderdale has gone through two layoff procedures where I was spared. However, I have been directed to work in a position that is a demotion from the position I previously held. For this reason, after two years, my position has not been rated or classified making a return to the Civil Service Board for redress not possible. Furthermore, the position I now occupy can readily be surrendered in future layoffs. If this occurs, upon appeal to the Civil Service Board, the City will maintain that the layoff was proper because no rules were misapplied or misinterpreted. Furthermore, they will also contend that my not being included in the first two layoffs demonstrates that no retribution is involved or intended. In my opinion, under the circumstances, the Civil Service Board will rule in the City’s favor.
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The Personnel Rules establish a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, demotion, dismissal, suspension, removal and discipline of the City’s officers and employees. I am a highly qualified and proficient employee whose contributions to the effective and efficient operation of the City have been extraordinary. Despite the Personnel Rules, despite the existence of a Florida Whistleblower Law, and despite my record of achievement, I have been demoted and forced to work under the direction of an employee who, in my opinion, should be my subordinate and was complicit in the waste and inefficiency uncovered by me. Something is wrong.
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Chapter Twelve An Appeal to the City Manager
Not having recourse through the Civil Service Board, I decided to approach George Hanbury again. My first letter, in this regard, was written on October 20, 1994, and included as attachments my grievance of 1988 and my appeals to the Civil Service Board. This letter follows. On March 11, 1994, you wrote concerning my request for intervention on my behalf in regard to decisions being made by Mr. Greg Kisela, Public Services Director. These decisions and the problems identified in the documents provided were discussed on two occasions in meetings attended by the three of us. In your letter, I was told you believed it would be inappropriate to interfere with Mr. Kisela's judgments concerning the internal organization of his Department. Because of your decision, I was compelled to appeal this matter to the Civil Service Board. In hearings to determine if the Civil Service Board would hear my appeals that took place during the early part of this year, the Civil Service Board voted not to do so because I had not been dismissed, demoted, or suffered a loss in pay. Considering the seriousness of the appeals and the fact they allege violations of the City Charter and Personnel Rules, I believe the Civil Service Board should have heard my appeals under their discretionary powers. Unfortunately, they declined to do so. Thus, I have no choice other than to ask you to reconsider my situation. I understand your reluctance for not wanting to interfere in decisions made by Mr. Kisela, but considering their serious implications and possible consequences, I do not believe you enjoy that luxury. As City Manager, you are ultimately responsible for addressing violations of the City charter and Personnel Rules, especially if the Personnel Director has declined to do so, which is the case. Mr. Kisela has directed Bob Nielsen, Process and Information Control Manager to serve as acting manager of the newly created Administration Division within Public Services, because he believes this arrangement is in keeping with the effective and efficient operation of the Public Services Department. I believe I am more qualified than Mr. Nielsen is in this regard. Therefore, it is incumbent upon Mr. Kisela to explain the reasons supporting his position. I believe he is unable to do so because the facts support my position. There are five areas of concern when judging capabilities to perform within a job classification; education, experience, contributions, ability, and character. I believe objective examination of the record will show I am more highly rated than Mr. Nielsen in each of these five areas. - 97 -
In 1988, I filed a grievance with the City of Fort Lauderdale that, among many other things, included an analysis of the structure, organization, and resources of the process control function within Utilities. This analysis identified several millions of dollars of waste associated with the organization and operation of the Process & Information Control Division that, at the time, was under the direction of Bob Nielsen who, in my opinion, bears a measure of responsibility for this state of affairs. I believe Mr. Nielsen's complicity in this regard are the attributes that lead Mr. Kisela to favor Mr. Nielsen for the position in question. If this conclusion is true, then Mr. Kisela is in gross and flagrant violation of the personnel rules and as City Manager, it is incumbent upon you to take action to rectify the situation. If the above conclusion is not true, then it follows that there is more to this situation than meets the eye and something else is the motivating force behind Mr. Kisela's decision. As a City employee, I believe I have a right to know the reasons for his actions. Would you please provide me with an answer or direct Mr. Kisela to do so. ****** Following this letter, I wrote Mr. Hanbury as follows: Dorothy O’Leary, your secretary, has informed me that you have received my letter of October 20, 1994, and have initiated an investigation into my concerns. She also explained that you do not wish to see me at this time, but will call me if you find it necessary. In 1983, I reported to the Chuck Owens that the Utilities Department was dumping raw sewage into the North Fork of New River. Subsequent to bringing this dumping to a halt, Connie Hoffmann directed Mr. Owens to investigate the situation. He interviewed those involved but never talked to me again. Lower level managers were interviewed in a manner described as intimidating and senior management’s explanations were accepted at face value without substantiation. Mr. Owens’ report on this situation was labeled a whitewash by a number of Utilities Department employees. Were Mr. Owens’ findings predictable? Do you believe an Assistant City Manager would issue a report that concluded the dumping of raw sewage by the City of Fort Lauderdale was preventable or worse, intentional? In 1988, a Grievance Committee was formed that turned out to be an investigative body in lieu of a problem solving committee. The investigation conducted consisted of interviewing the Personnel Director, the Utilities Director, the Deputy Utilities Director, the Assistant Utilities Director, and me. The ground rules of the investigation were to ignore the substantial amount of information and documents provided and, instead, take at face value the unrecorded and undocumented testimony of those interviewed. Following these ground rules, what chance did my testimony have of standing up against the testimony of the Personnel Director and the executive management of the Utilities Department? Documentation was provided that refuted key testimony given to the Committee, but this documentation was ignored. Were the findings of my Grievance Committee predictable? If my grievance were found to have merit, it would lead to the conclusion that the Personnel Director and the Utilities Director were in violation of Florida Statute, the City Charter, and the Personnel Rules. - 98 -
Under these circumstances, was it likely that Mr. Brossard or John Dargis would rule in my favor? Were not these Grievance Committee members in a conflict of interest? Upon initiation of my grievance in 1988, Mr. Jordan’s response was to ignore it. Mr. Robert’s response was to deny it, and Connie Hoffmann, agreed with Mr. Roberts without investigation. Is this surprising! As City Manager, was Connie Hoffmann likely to rule against her own Department Head and Personnel Director? Upon appealing Ms. Hoffmann’s decision to the Civil Service Board, the Board's recommendation was to back up and convene a Grievance Committee, the results of which have been discussed. You are now in the same position as Connie Hoffmann because I have approached you for redress in this situation. Ruling in my favor would be an affront to Mr. Panoch and Mr. Kisela. Upon first approaching you, your response was that you do not wish to interfere with Mr. Kisela's decisions. Your response to me this second time I approached you was that you were conducting an investigation and “don't call me, I'll call you". In the light of what has transpired, in consideration of the conflict of interest you are in and the implications of your decision, can you understand why I am not comfortable with this response? Mr. Dargis wrote that Mr. Larkin, as Deputy Personnel Director, clearly and unequivocally qualified Bob Nielsen to be Process & Information Control Manager, at the time of his application. As things turned out, this “clearly and unequivocally qualified” person supervised a division that needlessly wasted millions of dollars of taxpayer money. As I write, I believe that the Personnel Division is in the process of “clearly and unequivocally qualifying” Mr. Nielsen to be Division Manager of Administration, in the same way Mr. Nielsen became Process & Information Control Manager. If this is true, I respectfully request that you place a hold on this process until the situation is resolved. In your investigation, I assume you will be talking to Bob Nielsen, Greg Kisela, and John Panoch. I have valid reason for wanting to question the statements of these people and believe I should be given the opportunity of doing so. Because you have excluded me from being an active participant in your investigation, I suspect that I will not be extended this courtesy, which from my perspective, could result in another miscarriage of justice. I applaud your wish to investigate and reconcile this matter, but believe that an investigation of this nature cannot be conducted behind closed doors. I respectfully request that we meet to discuss the issues raised by me and the procedures that will used in your investigation. In my opinion, this affair is a black mark upon the Public Service and Fort Lauderdale. As City Manager, you are in a position to erase that mark. I trust you will. ****** Following the above letter, I wrote Mr. Hanbury as follows: I asked you to review and provide relief for my work situation because of my conviction that I am being unfairly and treated. Furthermore, I have alleged that Greg Kisela is the focal - 99 -
point of my complaints and is in violation of Florida Law, the City Charter, and the Personnel Rules. The purpose of this letter is to provide justification for my allegations. The City Charter and Personnel Rules compliment each other with the City Charter being the superior document and the Personnel Rules expanding upon the principles established therein. For simplicity, I will address only the Personnel Rules and leave it to you to raise the level of my presentation to the City Charter. In my opinion, by provisionally directing Mr. Nielsen to perform the job task functions of Administration Manager, the following Personnel Rules have been violated. 1. That employees may have assurances that they will be dealt with on an equitable basis. I am not being dealt with on an equitable basis, but am being treated differently than other employees. In my opinion, younger and less qualified employees are being given preferential treatment for advancement. For example, Bob Nielsen has been appointed to perform the duties and responsibilities of Division Manager of the Administration Division giving him advantage to be considered for this position if an examination is held. I also believe I am the only management level IV employee in the City without a private office and the office I should occupy has been given to a junior employee. 2. The rights of veterans as specified in Florida Statute, Chapter 295, shall apply to the City. In this City, being an honorably discharged veteran counts for nothing. 3. All appointments in the classified service shall be made according to merit and fitness. Merit and fitness shall be ascertained by examinations. All examinations shall be impartial and shall relate to those matters which test fairly the capacity and fitness of the applicants to efficiently discharge the duties of the position to be filled. I am being denied the right to be examined for the position of Administration Division Manager. 4. Provisional appointments shall be for no more than four months. Mr. Nielsen has provisionally held the position of Division Manager of the Department’s Administration Division for two years. 5. No one shall defeat, deceive, or obstruct any person in his right to examination.
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By appointing Mr. Nielsen to perform the duties and responsibilities of the Division Manager of the Administration Division and not holding an examination to fill that position, Mr. Kisela is defeating and obstructing my right to examination. 6. Employees will have their complaints considered fairly, rapidly, and without reprisal. I believe My, Kisela's actions towards me to date are taken in reprisal for filing my grievance in 1988 and will demonstrate the validity of this allegation later in this document. I also believe the loss of my office is an action taken in reprisal by Mr. Kisela for complaining to him that I believed he was not treating me fairly or properly when I first transferred back to the Public Services Department. 7. Abusive use of any portion of this subsection by an employee or official to control, suppress, or threaten free discourse or discussion by any other official or employee, when such discourse or discussion is a matter of public concern. Believing the treatment I have received from Greg Kisela and from the Personnel Division to be a matter of grave public concern, I wrote to the City Commission suggesting a change to the City Charter. I was reprimanded for doing this. If this is not an abusive use of the Personnel Rules to suppress or threaten free discourse, then please explain what is. When I visited Connie Hoffman in 1984, she told me I was unpromotable because I was carrying too much excess baggage. If Mr. Kisela is not able to explain why his actions are in the best interest of the efficient and effective operation of the Public Services Department and he is not able to identify a shortcoming that precludes me from being considered for advancement, then Ms. Hoffmann’s assessment of my situation is correct; I am not promotable because of the excess baggage I carry. Unfortunately, the bag I carry has grown heavier. Added to it are my grievance of 1988, my blowing the whistle on the millions of dollars of waste associated with the Process & Information Control Division, and my blowing the whistle on the All Service contract extension. I will now explain the reasons behind my allegation that Mr. Kisela is in violation of the Florida Whistleblower Law. Mr. Kisela claims that he has not been unduly influenced by anyone or of past events and that his decisions were made in the best interest of the efficient and effective operation of the Public Services Department. I believe that he has sided with a group of managers who hold a grudge against me because I am a whistleblower. I also believe that these people have influenced Mr. Kisela to violate the Personnel Rules and my Civil Rights. Events that support my belief that occurred prior to Mr. Kisela arriving on the scene are as follows: 1. After stopping the dumping of raw sewage into the North Fork of New River, Mr. Roberts, enraged at my actions, spread a rumor that the City Manager was about to fire me. He directed me to give up my office and occupy a desk in the clerical section of the Department, directed me to speak to no one outside the immediate area of the Administration Building without obtaining permission, - 101 -
directed me to log my coming and goings, removed me as Chairman of the Utilities Management Task Force and after, I withdrew my first grievance, arranged to have me psychologically evaluated “to determine whether an undetected problem existed”. What is the career potential of a manager that has been forced to undergo psychological examination for undetected problems? In my opinion, at the time, the real undetected problem in the City, was a Department Head who did nothing while raw sewage flowed into Fort Lauderdale’s premier waterway, a short distance from where the City sponsored its annual New River Raft Race and a City Manager who thought it more important to protect this Department Head than the employee who brought the matter to her attention. 2. In the summer of 1983, Lucky Jordan, my supervisor, maintained that it was incumbent upon him to give me a marginal rating in my ability to adapt to a municipal work environment, even though this rating was not justified. 3. When I visited Connie Hoffmann in her office on May 28, 1984, she told me that no possibility of promotion or even consideration for promotion existed within Fort Lauderdale, because no one had anything good to say about me. Ms. Hoffman’s statements belied my work history and confirmed, in my mind, that my career had been soiled by rumor, innuendo, and political considerations. 4. On February 25, 1988, I was told by Alan Roberts, Utilities Director, that I was unqualified to hold a high-level management position. 5. On March 22, 1988, I filed a grievance demonstrating that my career had been adversely affected because I was a whistleblower. In my opinion, any unbiased person reading this document would conclude that my grievance had merit, yet Connie Hoffmann and the Grievance Committee ignored the evidence available and based their findings upon the testimony of Alan Roberts and his subordinates. 6. I have never been honored with a birthday cake cutting ceremony, a standard practice in the Utilities Department, despite the fact that lower level managers have. 7. In 1989, Hector Castro, attempted to have my position upgraded to Division Manager of Administration, but his efforts were blocked by Alan Roberts. 8. In a PD-13 evaluation of my position that occurred in 1985, the Personnel Division ignored input and documentation endorsed by Mr. Brossard and Mr. Barnhart. After a year's delay, my alleged job description, which did not reflect my duties and responsibilities, was sent to the Equicomp Committee for evaluation. Pete Witschen arbitrarily and without explanation, reduced the skill - 102 -
level requirements of my job description the day before it went before the Equicomp Committee. 9. I have not worked under a job class title appropriate to my position for the past four years (6 years as of the date of this publication). In view of this, is it reasonable to believe that when Mr. Kisela came to this City, he heard nothing of my past and that my past had no bearing on his decisions affecting my status within the Public Services Department? If you believe that, then you must also believe in Santa Claus and the Tooth Fairy. Events that have occurred under Mr. Kisela’s direction are as follows: 1. When Mr. Kisela first arrived, Jim Calli was providing financial services to the Public Services Department. When Mr. Calli left, instead of replacing him, Mr. Kisela created a new and higher level position called Rate & Finance Administrator. I was told his reason for doing this was because he believed that the Department needed a higher level of expertise in the person of its financial officer. This explanation belies the truth. Examination of the Rate & Finance Administrator position reveals it is no different from my old position and if anything, should be rated at a lower level because Sanitation was no longer a part of Utilities. To confirm this, all Mr. Kisela had to do was discuss the matter with Frank Coulter or Hector Castro. These two people are intimately familiar with the level of financial services I provided to Utilities. This being true, we are left to conclude that the Rate & Finance Administrator position was rated at a higher level for the sole purpose of ensuring that I would be eliminated from consideration when I applied for it. 2. When the Rate & Finance Administrator position was advertised, I was eliminated from consideration through a telephone interview where Mr. Kisela determined that I did not possess the required level of expertise to determine rates for the Utilities Department despite having done so for several years to a high degree of satisfaction. Here again, Mr. Kisela could have determined the truth by talking to Hector Castro, Frank Coulter, or any other knowledgeable individual in the Finance Department. Upon bringing this situation to the attention of Pete Witschen and John Panoch, I went to great lengths to demonstrate that the Rate & Finance Administrator position and the Utilities Financial Administrator position were identical. They refused to intercede. 3. When the decision was made to combine General Services and the Public Works Department, Mr. Kisela held several staff meetings where logistics of the merger were discussed. I was not invited to any of these meetings despite - 103 -
the fact that I regularly attended Director Staff meetings. In contrast, Bob Bland and Greg Slagle, who did not regularly attended Director staff meetings, were included in Mr. Kisela’s meetings. Furthermore, despite that fact that I am a manager who functions as an internal consultant, no aspect of this merger was ever discussed with me. Mr. Kisela maintains that he determined the roll I would play in his new Department by focusing upon its efficient and effective operation. How Mr. Kisela believes this can be accomplished by placing his most accomplished employee in a lower level position, defies explanation. 4. When it became apparent that I was being directed to work in a lower level position, I became alarmed and realized that my adversaries were influencing Mr. Kisela. I concluded that the only way to rectify the situation was to tell Mr. Kisela my side of the story and did so by giving him sufficient documentation to understand my situation. Unfortunately, this action proved counter productive. 5. Mr. Kisela has not provided me with a suitable office and left me to occupy a desk in a room I share with three clerical employees. It is ironic that this decision is the same humiliating action proposed by Mr. Roberts following the New River pollution incident. 6. When I was Utilities Financial Administrator, I supervised the Supervisor of Finance. This allowed me to perform the higher level requirements of my position without being distracted by the day-to-day operation of Finance. Mr. Kisela has asked me to perform many of the same duties I did in the past and also to directly supervise Finance. This arrangement would work if I were permitted to have a Senior Accounting Clerk as a lead worker in Finance. Unfortunately, Mr. Kisela has declined to approve my request and explains that since the reorganization and layoffs, everyone in the Department has more on their plate. This may be true, but not everyone in the department is faced with a difficult work situation justified by the City saving the cost differential between an Accounting Clerk and a Senior Accounting Clerk. In my opinion, the real explanation for Mr. Kisela’s actions are that he is boxing me into a corner where I will be too preoccupied to be ineffective as the Department’s financial officer. Mr. Kisela justifies his actions by explaining that he has acted in the best interest of the efficiency and effectiveness of the Public Services Department. However, his decisions have been to my detriment and to Mr. Nielsen's benefit. In my opinion, I am more highly rated in all elements of examination than Mr. Nielsen is. Furthermore, I believe Mr. Nielsen facilitated the needless spending of millions of dollars of taxpayer money on the Department’s Process Control function. I blew the whistle on this situation. From my perspective, the real explanation for the latter list of occurrences is that they are a continuation of the first list of occurrences and that Mr. Kisela has joined a conspiracy to deny me my rights under the Personnel Rules. I also believe that by doing so, Greg Kisela is in violation of the Florida Whistleblower Law. - 104 -
An affirmative defense to the Whistleblower Law is if I am removed from the picture, would the same decisions have been made? In my opinion, if I were not the whistleblower in attendance, a Rate & Finance Administrator position would not have been created at a higher pay scale and once this was done, I would have been hired as Rate & Finance Administrator. Furthermore, Greg Kisela would not have excluded me from his staff meetings, would have solicited my opinions as to how to best accomplish the merger of General Services and Utilities, would have given due consideration to my concerns about how the merger of General Services and Utilities affected me, would not have given my office to a lower level employee, and finally, would allow me to staff the section I supervise in a manner that will increase its efficiency. ****** Following the above letter, I wrote Mr. Hanbury as follows: Since filing my grievance of 1988, on many occasions and in many documents I have used the phrase, “this is a matter of grave public concern”. I have used this phrase so much that I believe I am not taken seriously. The purpose of this letter is to explain why I choose to use this phrase and demonstrate that my doing so is an extremely serious matter. What are matters of public concern? This is a subjective determination and as such, some occurrences fall into a gray area where the matter is unclear. On the other hand, most occurrences can easily be classified. These include those that fall into the following two categories: 1. Violations of federal, state, or local law, rule, or regulation that creates and/or presents a substantial or specific danger to the public's health, safety, or welfare. 2. An act of gross mismanagement, malfeasance, misfeasance, a gross waste of public funds, or gross neglect of duty that is a detriment to the public's health, safety, or welfare. Let us new apply these two measures to the incidents in which I have been involved. The wholesale dumping of huge quantities of raw sewage into the North Fork of New River such that Fort Lauderdale is cursed by a huge toxic sludge blob sitting on the bottom of New River. If unintentionally done, this fits under both criteria and if unintentionally done, fits criteria No. 2. The creation of a process control function within the Utilities Department that defies reason to such an extent that millions of dollars of taxpayer money have been was wasted, fits under criteria No. 2.
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The “sweetheart” extension of the All Service contracts in defiance of purchasing guidelines fits under criteria No. 2. If money or favors were exchanged, then criteria number one would also apply. It is clear that each of the occurrences described above are matters of public concern, but are they matters of “grave” public concern. Deciding if a situation is “grave" is also a subjective process judged by the amount of harm done, combined with the degree to which laws, rules, and regulations have been broken. It has not been determined if anyone has been made sick or died because of our toxic sludge blob, but the potential exits for this to happen. This being so, I would describe our dumping sewage as being "grave”, especially when one considers the huge amount dumped. Similarly, the installation and staffing of the process control computer within the Utilities Administration building, in my opinion, was so ill conceived that this situation could also be described as being “grave” especially in consideration of the millions of dollars wasted. It should be evident that the two incidents described above are matters of "grave” public concern, but this is not why I have frequently used the term. I have a more important reason for doing so. My situation is a matter of "grave public concern” not because the unfortunate incidents described above have occurred, but because, in my opinion, Fort Lauderdale has whitewashed this wrong-doing, has not censured or disciplined those responsible, and has done nothing to ensure that such terrible things will never happen again. In my grievance of 1988, I exposed the waste and inefficiency associated with the process control function in Utilities. Subsequent to my report, Camp, Dresser & McKee, Inc. was hired to investigate my allegations. Their report validated my key findings. What happened? Nothing for few several years. If my criticism of the process control function was valid as confirmed by Camp, Dresser & McKee, why did the city delay correcting the problem for several years, thus needlessly wasting millions of dollars on top of the millions already needlessly spent? Robert Nielsen, chosen to be Process & Information Control Manager by Mr. Roberts and then “clearly and unequivocally qualified” into that position by the Personnel Division, participated in the development of the Department’s process control function. Has Mr. Nielsen been censured for his complicity in this regard? No, instead, the City is in the process of “clearly and unequivocally qualifying” Mr. Nielsen to be Division Manager of Administration. In conclusion, when I describe my situation as being a matter of grave public concern, I do so because I believe I am an employee within the Public Services Department who can be counted on to do the right thing when serious wrongdoing occurs. Instead of being rewarded, I am, in my opinion, being punished in violation of the Personnel Rules, the City Charter, and the Florida Whistleblower Law. Why? I believe to send a message to other employees that there is a price to be paid in Fort Lauderdale if you act on your convictions and fulfill your responsibilities as an employee and citizen. My situation is known to many - 106 -
employees throughout the City. Considering how I have been treated, will any of these employees be encouraged to follow in my footsteps if similar improprieties occur in the future? This is why my situation is a matter of grave public concern and therefore, it will not go away until the issues raised by me are properly addressed. ****** At this point, I asked myself, what is the minimum I would accept to achieve a mutually equitable settlement to my situation as called for in the City’s grievance procedure? In the past, as Financial Administrator, my pay scale and salary was established without supervisory responsibilities. If I could assume my old position and report directly to Mr. Kisela, that would allow me to save face and be satisfied. In my opinion, this simple solution could be easily be implemented. I met with Mr. Kisela to discuss my proposal. He responded as follows. I discussed your request with George Hanbury, and after much deliberation, I regret to inform you that I am unable to modify your reporting structure. In order to do justice to those reporting directly to me, I devote much time and resources to their efforts. At this time, I am afraid I would not be able to provide you the direction you would need to be successful in your position. However, I have the utmost confidence that Robert Nielsen will be able to do that. Even though this is not what you would prefer, I hope you will continue to perform your duties and responsibilities in the usual efficient and professional manner. ****** I responded to Mr. Kisela as follows: Earlier this week I approached you with the intent of reaching a mutually equitable decision regarding my work situation within the Public Services Department. My proposal was to report to you as Financial Administrator. This change, in the best interest of the efficiency and effectiveness of the Department, would mirror the organizational structure of most other organizations. Your reason for turning down my request was because you devote much time and resources to your subordinates and have no time available for another subordinate. In my opinion, your explanation belies the facts. Prior to transferring to Public Works, I functioned in an above satisfactory manner as the Department’s Financial Administrator. Before being hired by the City, I owned and operated a successful school of gymnastics. I also have successfully functioned at the executive level in a number of civic and charitable organizations. Therefore, I am an individual with a proven track record of success at the executive level and one who would require little supervision. - 107 -
In conclusion, because of my background and level of professional expertise, having me on your staff will decrease and not increase your workloads as you have suggested. ****** Subsequent to writing the above letter, I had occasion to review my personnel file and was shocked to find the following letter written by Robert Nielsen without my knowledge or having been given the opportunity to comment. This is to document that on this date, April 20, 1994, at approximately 11:15 AM, I delivered to Alan Adaschik a letter of reprimand. After reading the letter, Mr. Adaschik replied he would accept this discipline, was relieved that the discipline was not harsher, and appeared to concur that the punishment was in line with the infraction. He stated that although he did not necessarily agree with the outcome, he understood why he was receiving the discipline. He also stated he would no longer communicate directly with the Commission and realized he would be in serious difficulties if he did so again. I told him that from his point of view he might have felt he was justified with his actions, however, the City's point of view was different and quite clear. He agreed and again stated he would accept the punishment and no longer communicate with Commission in this manner. ****** Mr. Nielsen’s letter provoked me to write the following letter to Mr. Hanbury. I recently reviewed my personnel file and was dismayed to find a letter to file from Bob Nielsen concerning my behavior during a meeting that occurred on April 20, 1994. This is the first time that I became aware of this letter and the first time I became aware that my letter of response to Mr. Nielsen’s informational meeting letter was not in my personnel file. My written response to Mr. Nielsen’s letter was provided in lieu of the informational meeting. Mr. Nielsen was apprised of this at our April 20th, meeting, which occurred only to discuss and clarify some of the points made in my response letter. This being so, the fact that my response letter was not in my file and a letter that I had never seen before was, is extremely disturbing. This is especially true because, in my opinion, this letter to file distorts the truth and presents a totally erroneous picture of what occurred at our April 20th meeting. Mr. Nielsen states that I would accept this discipline and that I concurred that the punishment was in line with the infraction. First of all, a letter of reprimand is not discipline or punishment. How can I accept discipline and punishment that does not exist? In my response letter, I state, “I consider the charges enumerated to be without substance and foundation”. Does this sound as if I accept this discipline and concur that the punishment was in line with the infraction? What I communicated to Mr. Nielsen was that I accept the letter of reprimand because it was not punishment or discipline and, therefore, under the personnel rules had no choice in the matter. - 108 -
I did tell Mr. Nielsen that I should not be reprimanded, but understood why I would be. Albeit, that within Fort Lauderdale, the Personnel Rules and City Charter are nothing more than words on paper to be violated with impunity whenever it suits the purposes of management. I believed I was being reprimanded to ensure that the City Commission would not become aware of this. While it is true that I acknowledged I would be in serious difficulties if I communicated directly with the Commission again, it is not true that I stated that I never would again. In my response letter, I point out that City Policy 3 (c) states “although channels of communication between the Commission and administrative officers should be through the City Manager, especially in matters of policy or other areas of importance, circumstances do arise where this procedure cannot be followed". The other areas of importance referred to in this Policy, in my opinion, are matters that are of public concern. This truth is reinforced by the Personnel Rule in several places. I would never surrender my right to bring matters of public concern to the attention of the City Commission. I strongly believe that if a matter of public concern is not properly addressed by an employee’s superiors after he has brought it to their attention without results, then that employee has a duty and obligation to bring the matter to the attention of the City Commission. How else will the Public's best interest be served? In conclusion, I consider the charges enumerated against me in my informational meeting letter to be without foundation or substance, and my letter of reprimand an attempt, by my superiors, to ensure the status quo within this City; whereby, when it suits the purposes of an official in a position of authority to violate the City Charter and Personnel Rules, he may do so with impunity. This is situation, in my opinion, is not in the best interest of our citizens and is a matter of grave public concern. ****** Finally, on November 18, 1994, I wrote Mr. Hanbury the following. In my letter to you of October 18, 1994, I explained why my situation is a matter of grave public concern. In this letter, I will explain why I believe the All Service Refuse contract situation is a “sweetheart” deal. In 1990, with renewal of both contracts pending, it was decided to extend them for two years such that they would have the same expiration date. The justification and conditions of extension for this first extension period were as follows: The small contract was extended at existing terms and conditions. The collection cost of the large contract would be reduced from $6.29, the collection cost in its fifth year to $5.80, a negotiated figure.
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A questionable aspect of the negotiated price of $5.80 is that while it is $0.49 less than the fifth year collection cost of the original contract, it is $1.25 more than $4.55, the average cost of the large contract over its five-year period. In 1992, it was decided to extend both contracts for two more years. The justification and conditions of extension for this second period were as follows: Both contracts should be extended because All Service had agreed to extend at the prices that existed prior to the first extension period. The small contract would be extended at the same terms and conditions. The large contract would be extended at the fifth year collection cost of $6.29, which was an increase over the negotiated $5.80 that the City had been paying during the first extension period. In my opinion, the City had negotiated a poor deal for the first extension period and added to that error by recommending an increased price for the second extension period. This year, it was decided to extend the All Service Contracts for three more years. The justification and conditions of extension for this third extension period were as follows. Both contracts should he extended because All Service Refuse would be able to purchase new equipment and collection cost would be frozen for three years. The small contract would be extended at the same terms and conditions. The large contract would be extended at the old negotiated collection cost of $5.80. Although returning to the negotiated collection cost from the first extension period was to the City's advantage, the decision to extend was questionable because at the time the third extension was being negotiated, contract tonnages were expected to drop by as much as 15% due to the advent of full program recycling. If this drop occurred, extending at any price would result in additional windfall profits for All Service refuse. According to purchasing guidelines, contracts can be extended only at the same terms and conditions. Yet the most important condition of this contract affecting cost was in error and, furthermore, expected to change significantly to the benefit of All Service Refuse. What is happening here? The fact that the tonnage in the bid specifications for the large contract was significantly overstated is suspect because if known by one collector, would give that collector an unfair advantage in bidding. Furthermore, if this mistake were an honest one, all bidders would submit bids significantly higher then they would have and the winning bidder would enjoy windfall profits. Another suspicious aspect of this situation is the bid structure for the large contract, which has sharply escalating collection costs over its five-year period. Most companies try to level - 110 -
revenue over time. What reason did All Service have for bidding in this strange manner? A possible reason would be to gain advantage in bidding for the small contract when it came up for renewal. In the last two years of the large contract, All Service was earning higher than average profits and therefore, was in a position to lowball the bid for the small contract. This explanation makes sense, but still does not explain why there is such an unusually wide spread between the contract’s first and fifth year. The possibility exists that All Service bid in the manner they did because they anticipated the contract being extended near the high fifth year price. If this is true, it follows that All Service may have enjoyed undue influence with one or more key people on city staff and, if so, this may also explain the overstated tonnages quoted in the five-year contract. Is this disturbing scenario far fetched? Perhaps this situation can be dismissed as being the result of honest mistakes. However, supporting the worst-case scenario is what happened the second time the large contract was extended. City staff recommended that the contract be extended to return to a price that existed prior to the first extension period. This recommendation is deceptive because it implies that we are returning to an earlier and lower price, when in fact the earlier price is higher. It is understandable why the City Commission missed the significance behind this wording, but hard to believe that the person who wrote this recommendation would do so. The fact of the matter is that city staff recommended that the Commission to extend the large All Service contract at a cost $0.49/unit per month higher than we had been paying previously which translates into a price increase of approximately $85,000 yearly. Finally, in the third and last All Service contract extension, Hugh Barnhart, who was about to retire, initiated a recommendation to extend these contracts for a third time, almost a full year from their expiration date. In response to this initiative, I made it clear to Mr. Kisela that instead of extending these contracts they should be re-bid because they were not being extended at the same terms and conditions. My protestations fell on deaf ears and Mr. Kisela stood before the City Commission and assured them that the All Service contracts were being extended at the same terms and conditions. In conclusion, the above described occurrences, individually, may be explainable, but taken as group, in my opinion, they smell of bid rigging and influence peddling; in short a “sweetheart deal”. You now have the opportunity to a right a great wrong I have been enforce to endure. Please do so. ******* Mr. Hanbury responded to my letters as follows. This is in response to your letters regarding your concerns about your work environment. First, let me respond to the issues you raised in reference to events that occurred in 1983 and 1988. Earlier this year, at your request, I reviewed the documents you provided concerning - 111 -
these events. It appeared to me that hundreds of hours were spent by the appropriate City officials dealing with these issues and I can see no benefit in attempting to readdress these items at this time. I also note that many of the individuals involved have now left City employment. In reference to your personal concern regarding your current status, I believe we discussed these issues in March and April of this year. At that time, Greg Kisela and I discussed the merging of the General Services Division and the Utilities Department and the proposed organizational chart to accomplish the new Public Services Department's mission. I am convinced he has aligned the resources correctly to accomplish this endeavor. Your allegation that Mr. Kisela is retaliating against you for incidents that occurred in 1983 and 1988 is indeed serious. I have questioned Mr. Kisela on his motives and I am convinced that he is not retaliating against you for those long past events. Specifically, Personnel Rule V, entitled "Classification Plan", authorizes Mr. Kisela to report to the Personnel Director, John Panoch, changes in duties and responsibilities of a position involving either the addition of new assignments or the removal or modification of existing assignments. Once Mr. Panoch determines that these are permanent changes, which may justify a reallocation to a different class, the affected employees are given an opportunity to comment. After all information is received and the appropriate approvals are obtained, the Personnel Director places the position in the appropriate class. Mr. Kisela has informed me that he intends to report to Mr. Panoch twelve (12) individuals who have had their job responsibilities modified because of the merger of the two (2) functions, He has identified your position, as being one that he believes requires reclassification. As I indicated to you earlier this year, at the appropriate time I will personally review any changes to your job responsibilities to ensure that you are being classified in a fair and equitable manner. As it relates to another matter, Mr. Kisela informs me that on several occasions you have assured him that your current supervisor, Mr. Robert Nielsen, has only treated you with the utmost respect and professionalism. Consequently, I can find no basis to validate your personal observation that Mr. Nielsen is not capable of serving as a division manager and that you should be placed in charge of the Administration area of the Public Services Department. In closing, although I know that you are unhappy and frustrated with your status in the organization, my review has not disclosed any attempts to retaliate against you for exercising your rights in the past. ****** The Grievance Procedure of the City of Fort Lauderdale states that it is City policy that employees will be provided mutual adjustments of points of disagreement with their supervisors and that their problems and complaints will be considered fairly. In my opinion, by settling my grievance in the manner he did, Mr. Hanbury is not in compliance with the Personnel Rules and has misapplied and misinterpreted them to my detriment. I also believe that any unbiased person would agree with this conclusion, however, under the present City Charter, I have no recourse before the - 112 -
Civil Service Board and thus no recourse. This state of affairs is not keeping with the merit principles and scientific methods of personnel administration or in the best interest of the employees and citizens of Fort Lauderdale. I believe the only best interests being served are those of people in positions of authority and their cohorts. Something is wrong.
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Chapter Thirteen What’s Wrong
The situation within the Civil Service of the City of Fort Lauderdale is such that management, through modification of the City Charter, in keeping with the Federal Civil Service Reform Act of 1978, has been unfettered from following the rules by eliminating Civil Service Board authority over their misapplication or misinterpretation. As a result, the Personnel Rules have become “window dressing” and management has the discretion to ignore or apply them at will. Irrespective of qualifications, contributions, or merit considerations, anyone within the Civil Service can be denied promotion, demoted, or laid off through manipulation of the system under management’s discretionary prerogatives. On the surface, Fort Lauderdale is a progressive City that encourages citizen involvement through advisory boards and civic associations. There is a Council of Civic Associations that monitors City Commission actions and a Budget Review Committee that monitors the budget process and seeks ways to reduce expenditures. Employees are actively encouraged by the City Manager and Budget Review Committee to report waste and inefficiency. While this is commendable on the surface, the “fly in the ointment” is the City Charter/Civil Service Board situation. Non-management employee rights are specified in a union contract and the union protects them from the wrongful actions of management. Management employee rights are specified in the Personnel Rules, but a mechanism no longer exists to ensure their fair and impartial application. Without the right to appeal misapplications and misinterpretations of the rules to a Civil Service Board, management employees are fearful of reporting wrongdoing, waste, and inefficiency. This situation makes pleasing the boss a manager’s prime consideration, irrespective of merit, professional considerations, or the best interests of citizens and unnecessarily increases the control and authority that executive management has over the City’s management staff, opening the door to hidden agendas and corruption. Of all the personnel rules, of primary importance, is the prohibition against making false statements of material fact or practicing fraud or deception. The changes made to the City Charter, eliminating Civil Service Board authority over personnel actions, has created an environment in the public service where politics and deception can reign supreme. For example, the Personnel Rules require that the appointment, promotion, transfer, layoff, removal and discipline of employees be based upon merit principles and scientific methods. Most people assume this to be the case. However, I am the best example that it is not. The emperor is as “naked as a Jaybird”, but management employees, if they value their careers and potential for advancement, maintain that he is regally clothed. - 114 -
I believe it can be demonstrated that, as far as personnel administration within Fort Lauderdale is concerned, the City Charter and Personnel Rules themselves are a deception. Both these documents contain a plethora of idealistic and wellintentioned purposes and rules that are binding upon no one and, if the truth is our goal, can be replaced by three simple rules: 1. The boss is always right. 2. When the boss is wrong, refer to rule #1. 3. If you violate the first two rules, kiss your career goodbye. The All Service Refuse contract situation, in my opinion, is another example of deception. Despite the existence of a Budget Review Committee, the Council of Civic Associations, the City Commission and a staff of full-time highly paid professional employees, a few key people were able to extend preferential treatment to All Service such that this company is enjoying profits beyond what they would normally be receiving. The Commission voted to extend this contract thinking it was being extended at the same terms and conditions and no one other than those directly involved know a problem exists. The truth of the matter is private citizens or city commissioners, no matter how intelligent and motivated, cannot be effective watchdogs over a staff of full-time professionals intent upon deceiving them. They do not have the time or resources to deal with clever hidden agendas. The only way citizens have of ensuring honest and responsible government is to ensure that government employees are honest and responsible. The Civil Service Board is the vehicle for achieving this and in Fort Lauderdale, the changes to the City Charter made in 1984, in keeping with the Federal Civil Service Reform Act of 1978, has rendered the Civil Service Board dysfunctional for this purpose. This situation is also true for most local governments throughout the Nation and for the Merit Systems Protection Board at the Federal level. ****** In order to understand what is happening within our Civil Service, it is necessary to analyze the personality types found there and understand how they function within the system. There are five basic identifiable personalities found within the public service: Ostriches Whistleblowers Accommodators - 115 -
True Believers Perpetuators Human beings are complex and multi-faceted creatures, thus any system of categorization will have exceptions, but for the most part, the vast majority of Public Servants fall within one or more of these types the attributes of which follow.
The Ostrich: The Ostrich, as the name implies, is a person with his head in the sand. This personality type thinks everything is okay and trusts those in positions of authority. He accepts things as they are and never tries to change anything. If an Ostrich encounters wrongdoing or improprieties, he dismisses them as being isolated incidents not worthy of attention. Ostriches want to do their job, get a paycheck and go home. They will do nothing to rock the boat or bring about change. Ostriches are found primarily in the lower levels of an organization where they have little opportunity to encounter problems or serious wrongdoing. Their professional attitude limits their career potential and thus they rarely rise above the Chief or Supervisor level within an organization Whistleblowers: Whistleblowers have a strong sense of right and wrong and will not tolerate a situation that is clearly wrong. Their detractors claim they see everything in black and white and lack the flexibility to function effectively in the real world or a public service environment. Belying this impression, Whistleblowers will tolerate indignities and questionable decisions as well as anyone. However, they constantly try to change things for the better and as a result gain the reputation of being “wave makers”. A Whistleblower will not willingly engage in deception and their word is their bond. Most Whistleblowers will never face a whistleblowing situation. Their superiors strive to keep them from holding positions where they can encounter serious wrongdoing. Like the Ostrich, Whistleblower’s have limitations on how far they will climb in an organization, but in general, their energy and ability to get things done allows them to climb higher than the Ostrich. All organizations need Whistleblowers to function effectively and management will tolerate and use them so long as they can maintain control of the situation. Accommodators:
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Accommodators aim to please. They know and understand that agreeing with the boss is the best way to survive on the job, so that is exactly what they do. Accommodators are “yes men” and serve as an impediment or balance to the actions of Whistleblowers. When necessary, they will compromise their integrity, especially if it endears them to their superiors. Accommodators can be separated into two distinct groups; those motivated by fear and those motivated by self-interest. Irrespective of motivation, their effects on the organization are the same. Accommodators predominate in the Public Service and can climb to any level. However, having little to distinguish themselves from each other, they rarely advance far unless circumstances arise where they can compromise themselves and thereby prove useful to their superiors. True Believers: True Believers accept everything in the Public Service as they find it and believe that the status quo is the way things should be. This personality type is the patriot of the Public Service that subscribes to the cliché, my country, right or wrong; the problem being that they confuse loyalty to their government (employer) with loyalty to their country and its citizens. They fail to grasp that a “country” includes all citizens and not just government as an entity apart from the people it serves. True Believers view Accommodators as wimps, Whistleblowers as disloyal, and citizens critical of government as being anarchists, extremists, or “nut jobs”. True Believers can climb to any level in the Public Service and their blind loyalty makes them particularly attractive to those at the higher levels. Perpetuators: Perpetuators are highly intelligent and know right from wrong, but are greedy and actively work with a hidden agenda to further their own interests at the expense of all other considerations. Power, influence, and financial gain are their motivating factors and this being so, they constantly strive to unnecessarily and unjustifiably increase the power and control they have and that of those in positions of authority. Unfortunately, perpetuators dominate the higher levels within the Public Service and, for the most part, are the ones who control our government. ****** Understanding the basic types of people that populate the Public Service it is easy to understand how they function within the system. Survival is of utmost importance to anyone. Once survival is achieved, the second most important thing to a person is freedom. Personal freedom is directly proportional to how much power one has and most people, striving to be as free as - 117 -
possible, try to gain as much as possible. This characteristic of people is acceptable so long as one person’s quest for power is tempered and does not overshadow the rights of others. When an imbalance occurs, then another common attribute of people has come into play; the attribute of greed. Greed is the fuel that drives a person to own and control things beyond his or her need to survive, at the expense of others. It is the greedy nature of people that has given rise to the need for government. Government is instituted among people primarily to keep greed in check and ensure that everyone enjoys equal rights and opportunity under the law. To achieve its purpose, government enacts laws. We obey these laws for our own sake and the common good. However, although government should be to our benefit, once established, an ever-present danger exists. Governments are made up of people and people by nature, are greedy. If we allow others to have authority over us and enact laws that govern our behavior, how can we be assured that these men will serve the common good and not fulfill their own needs at our expense? The only way we have of protecting ourselves against this eventuality, is establish our government under a constitution that clearly delineates how government should function and the limits of its authority and power. Once this is accomplished, as a people, we have three ways of ensuring that our government does not go astray. Elect people to enact our laws. If the people we elect pass self-serving laws, we can replace them. Incorporate checks and balances in government to moderate and control the behavior of those entrusted to serve us. Be eternally vigilant and never trust those elected or hired to serve us. Unfortunately, this last tool, the most important of all, is the weakest of the three in today’s complex and modern World. No one, today, can stay informed about everything that happens in our many layers of government. Furthermore, because we have become such a diverse society with so many different points of view, even if one was aware of something happening not in our best interest, convincing enough people about the truth of the matter so effective action can be taken is difficult. These circumstances have made it impossible or at best, extremely difficult for Americans to monitor and control their government. The truth of the matter is that the vast majority of Americans today, have no idea what their elected representatives believe or stand for and they know even less about the laws these people pass that control our lives. This state of affairs exists because of apathy, because Perpetuators in government want to keep people uninformed, and because the media places emphasis upon the entertainment aspect of news at the expense of its educational potential. The most important tool we have, as citizens, to protect ourselves from those that we entrust with power and authority is vigilance and with vigilance eliminated, those so entrusted will dismantle the checks and balances created to restrain their actions. - 118 -
This has happened under the Federal Civil Service Reform Act of 1978 and the Fort Lauderdale City Charter revision that occurred in 1984. These actions, taken with the best intentions by our elected representatives, eliminated citizen authority over the application and enforcement of rules within our Public Service thus allowing for the development of a Civil Service beholden only to itself and those in charge. How is our government supposed to really function or more important, what kind of people do we want working for us in government? From a citizen’s point of view, the answer is obvious. All public servants should be honest, hardworking, competent and not tolerant of wrongdoing. In other words, government employees should be Whistle-blowers; the more the better. If most government employees were Whistleblowers, the public best interests would be served. On the other hand, if you were a greedy bureaucrat, would you want a Whistleblower working for you? Of course not. Greedy bureaucrats could not pursue their own interests if Whistleblowers worked for them and thus, would be forced to work solely for the common good. A greedy bureaucrat wants Accommodators, True Believers, or Perpetuators working for him and no whistleblowers, because the former will help him achieve his personal goals, irrespective of the public’s best interest. Advancement in the Public Service is supposed to be based upon merit principals and ensure that only people of high integrity are hired and promoted. While this is in the best interest of citizens, unfortunately, my experience has shown me that this is not how the system works in practice. The tendency is for Ostriches to sit where they are, Whistleblowers to be neutralized, and Accommodators, True Believers, and Perpetuators are the ones usually promoted. With Civil Service Board authority over the administration of the Personnel Rules removed, this tendency becomes a driving force and our Civil Service will become an elitist organization where employees are beholden only to those in positions of authority. In a Capitalist society, he who best controls his environment, profits most. Therefore, a company with undue influence over government stands the best chance of being successful and profitable. When whistleblowers are neutralized or weeded out of government, greedy bureaucrats are free to work to achieve their own ends by helping wealthy people achieve theirs. Many wealthy people, who make no pretense about working to achieve their own ends, strive to ensure that only greedy bureaucrats hold positions of authority in government. With Civil Service Board authority over administration of the Personnel Rules removed, a situation has been created where power brokers can control the public service, leaving them to be the guiding force behind government operations. In my opinion, this state of affairs is true within Fort Lauderdale and, unfortunately, at the National level as well.
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Chapter Fourteen A GATT Appeal to Congress
The first part of this book deals with the problems I experienced in government at the local level. The remainder of the book will deal with problems I experienced with government at the National level. The problem common to both areas of government is that they are no longer accountable to the people of this Nation. One may argue that we elect our congressional representatives and they are held accountable by virtue of our option to vote them out office. True enough, but how many of us are really informed about who we elect to lead us and what they really stand for. Furthermore, what are our options when we vote? In my opinion, both major parties are essentially the same in philosophical outlook and thus our vote is really a choice between Tweedledum and Tweedledee. This topic is covered in detail in Chapter Sixteen. ****** On January 17, 1961, Dwight D. Eisenhower, President of the United States of America, Supreme Commander of Allied Forces in Western Europe during WW II, military commander of NATO, and President of Columbia University, after forty-six years of public service, presented to the Nation his farewell address as its President. In this address, President Eisenhower stated that the basic purpose of our government is to keep the peace, foster progress in human achievement, and enhance liberty, dignity and integrity among people and among nations. However, at the time, President Eisenhower was concerned that there were forces at work in the Nation, in contradiction to these noble goals. To warn the American people about the nature of these forces President Eisenhower stated, “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.” President Eisenhower, although justified in his concerns, was shortsighted in describing them. The real threat to liberty and democracy in America, at the time, was not the military-industrial complex, but more accurately, something far more reaching; the corporate-governmental complex or more appropriately described, the union of government and corporate forces to an extent where corporate influence is the dominant force in American politics at the expense of the Nation and its citizens. This was the real threat that existed as President Eisenhower spoke and this threat has achieved it goals and purposes to such an extent that our Nation is, at present, - 120 -
being torn between those still blindly loyal to what was our government and those all too aware of what is happening. The fundamental concept adhered to by our founding fathers in drafting our Constitution was that our government would be a government of the people, by the people and for the people. At the time, large corporations did not exist. The only institutions of significance around were the people, the government, and the press. The press, served as a source of information for the people and a watchdog of government. The Constitution was drafted in keeping with these political realities and served the Nation well for almost 200 years. The problem we now face today is that the situation is such that multinational corporations, through wealth and wealth associated influence, are able to control most governments of the World, including ours. Our founding fathers never envisioned or considered the rise of corporations as a political force in the World and the fact that they would grow so large that their power and influence would exceed that of governments and transcend national boundaries. Is this really true? Truth is a matter of perception, but these perceptions are validated repeatedly by the actions of the Federal Government and its officials. For example, prior to the enactment of NAFTA, when asked about the loss of U.S, sovereignty under NAFTA, President Clinton responded, “If we’re going to ask Mexico to give up a little sovereignty, why shouldn’t we give up a little too?” These words spoken by President Clinton are both shocking and revealing. First of all, the sovereignty of our Nation belongs to its people. The President of the United States, more than any other individual, is duty bound to protect it at all costs. Instead, he believes that he can barter it away like a loaf of bread or some other commodity. The concept that sovereignty can be bartered and traded like a commodity is one that serves only the interests and purposes of multi-national corporations at the expense of the people of this Nation. A president, who maintains he has authority to barter away our sovereignty and does so, is not working in our best interests, but subscribing to the agenda of multinational corporations. On April 8, 1996, on the first page of The New-Journal from Daytona Beach, Florida, an article appeared under the headline: “U.S. balks at signing anti-corruption pact”. This article starts out by explaining how corporate executives and government officials with overseas assignments have snickered at our efforts to eliminate bribery and corruption in inter-national business. The article goes on to explain that twenty-one member nations of the Organization of American States, recently signed a treaty to crack down on such shady practices, but the United States of America, declined to join them because the Justice Department has reservations about the constitutionality of the treaty’s provisions. Specifically, it takes issue with the requirement to make it a crime for a government official to acquire assets, “that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions”. The Justice Department objects to this requirement because it appears to shift the burden of proof from the government to the suspect, contrary to U.S. Constitutional requirements. - 121 -
When an individual is hired into the Public Service or elected to public office, the public is placing in that person a special trust; to no longer think and act to benefit ones self, but rather think and act only for the common good. If a person holding public office or working for the government acquires assets beyond those he is able to obtain through his lawful earnings, then clearly he has violated the public trust and having done so, should forfeit all assets so gained including the lawful earnings associated with the office or position he held. This latter requirement, at first, may seem extreme, but is it? After all, if when working for the public, I instead work for myself, am I not taking the salary I was paid under false pretenses? Apparently, the Justice Department does not think so and instead maintains that the Constitution precludes those serving the public from being accountable. How ironic that a document who’s prime purposes are to protect the people from government and make it accountable, is used by the Justice Department to ensure that government employees are not accountable. How did this absurdity come to pass? Perhaps, if the situation were such that government employees could not unlawfully enrich themselves, then the reach of multinational corporations into government would be reduced. More specifically, how could multinational corporations maintain control of the World Trade Organization, if ways of illegally enriching delegates is eliminated? Is the Justice Department of the United States of America subscribing to the hidden agenda of multi-national corporations? If not intentionally, they certainly seem to be doing so inadvertently. During the NAFTA debate, a Congressional Representative stood up and declared that the business of America is business. This may be true for the private sector. However, the business of government is not business. The business of government is governing. Business and governing do not mix well because the prime purpose of government is to ensure that the playing field is level for everyone. On the other hand, the primary goal of a business is to gain advantage on competitors. When government and business mix, the result is bad business and very bad government. When this occurs, the rich and powerful win and the losers are small businesses and citizens. ****** In November 1994, the House of Representatives passed GATT. Until this point, I did not believe that the passage of an agreement of this nature was possible. However, when the House of Representatives passed GATT, I woke up and wrote the following letter to the Editor of Newsweek Magazine. The United States of America is a sovereign nation and as such is autonomous and free of external control. Under GATT, trade disagreements would be subject to binding arbitration with the World Trade Organization being the arbitrator. In other words, in matters of world trade, under GATT, the United States of America will have lost its sovereignty.
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No government official has the right or authority to place this Nation, its Constitution, and its people subservient to any other governing body or authority and anyone that does so is selling out democracy and committing an act of treason. ****** After writing this letter, I wrote an open letter to the President, Congress, and People of the United States of America. December 1, 1994, is a day that will live in infamy because on that day Congress wrongfully and illegally enacted as United States Law, the General Agreement on Tariffs and Trade (GATT). As a result, Congress has invalidated our Constitution, reduced our Nation to less than sovereign status, violated the democratic principles we hold dear, and sold out the people of America. Furthermore, Senators and Representatives that voted for GATT did so in contradiction and violation of their Pledge of Allegiance. Under GATT, trade disagreements involving United States Law are subject to binding arbitration with the World Trade Organization (WTO) being the arbitrator. In other words, in matters of world trade, the WTO is sovereign to the United States and that organization has veto power over the actions of Congress. The World Trade Organization is not a democratic institution. Its member states include dictatorships and communist nations each having one vote equal to the one held by the us. Therefore, under GATT, communists and dictators, acting in consort, have the power to override United States Law. The Constitution of the United States of America states that all legislative Powers shall be vested in Congress and that Congress shall have the power to regulate commerce with foreign Nations. Under GATT, this is no longer true because Congress is now subservient to the WTO in matters regulating commerce with foreign Nations. Therefore, the Congressional vote for GATT is illegal because it is in violation of our Constitution's provisions. The changes wrought by GATT must be made by constitutional amendment and not a simple vote of Congress. Our pledge of allegiance states that we "pledge allegiance to the flag of the United States of America and to the Republic for which it stands". Webster's New World Dictionary of the American Language defines "Republic" as "a state or nation in which the supreme power rests in all citizens entitled to vote". The member nations of the WTO are not citizens of the United States and they certainly are not entitled to vote in our elections. Despite this, Congress has voted to give the WTO veto power over our laws. This being so, the democratic principles that underpin our government have been compromised and this Nation is no longer a "Republic". Therefore, the individuals responsible for this state of affairs have violated their pledge of allegiance to our Nation and citizens. In my opinion, the flag of the United States of America should no longer be displayed in the halls of Congress and instead, should be replaced by a World Trade organization banner. I further propose that this banner be green with a large black dollar sign displayed within its center. This WTO banner will require a new "Pledge of Allegiance" and I propose that Congress, in honesty and candor, adopt the following: - 123 -
I pledge allegiance to the banner of the World Trade organization And to the Money for which it stands, Gleaned from many Nations, Subjugated, With liberty and justice for the rich and powerful.
May God help us and forgive our Congressional Representatives. ****** Congressman Peter Deutsch responded to my open letter as follows. Thank you for taking the time to contact my office regarding the Uruguay Round of the General Agreement on Tariffs and Trade. I appreciate your interest in GATT and respect your position. The Uruguay Round of the GATT, signed on December 15, 1993 by the United States with 116 other countries, is the result of seven years of bipartisan cooperation and has been negotiated under the stewardship of three successive U.S. Administrations. The intent was to level the playing field of international trade by creating a more fair, comprehensive, and enforceable set of world trade rules. In order to accomplish this goal, a new World Trade Organization (WTO) was created. Although some say that the WTO compromises U.S. sovereignty, I reject that notion. Only the U.S. Congress has the authority to change U.S. law. Both parties have worked to ensure that Congress retains its legitimate authority by monitoring the evolution of the WTO and protecting the interests of the U.S. The President and Senator Dole have agreed to support a WTO Dispute Settlement Review Commission comprised of five Federal appellate judges who would review all adopted WTO panel reports which are adverse to the U.S. If the Commission determines that the panel has decided unfairly, any Member of Congress could call on the President to negotiate a solution in the WTO. If three determinations are made within any fiveyear period, any Member of Congress could introduce legislation to end US participation in the WTO. Now is the time for the United States to take leadership in international trade. The U.S. negotiators engaged in this laborious effort to reach an agreement that would prepare the American economy for the rigors of competition in the global market. The U.S. economy overall will gain tremendously by opening markets abroad because the U.S. is open to other countries' imports while other nations have a long history of blocking the importation of foreign goods through high tariffs. The most conservative estimates show that GATT will add revenue to the U.S. GDP of around $100 billion a year after implementation.
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Florida in particular stands to gain from GATT. As the eighth-leading exporter of merchandise, Florida's exports nearly doubled from $7 billion to $14.7 billion between 1987 and 1993. The South Florida region recorded 1993 export sales of over $9.5 billion; almost two-thirds the state total. GATT should benefit South Florida's economy through increased exports of goods to other nations. South Florida is a winner under GATT. Again, thank you for sharing your views. Please contact my office should any further issues or concerns arise. ****** I responded to Representative Deutsch as follows. The most disturbing aspect of the Congressional vote for GATT is that Congress does not recognize the serious implications of the situation which we now find ourselves in. Approximately 200 years ago, the American Revolution gave birth to a new nation unlike any other in history. The auspicious beginning of the great and noble experiment that was the United States of America began with a shout and report heard around the world and now, in a lame duck session of Congress, the experiment has ended with hardly a whimper. You say you reject the notion that the WTO compromises U.S. sovereignty for essentially the following reasons: 1. Congress retains the power to change U.S. law under GATT. 2. Both political parties have worked to ensure that Congress retains its legitimate authority under the Constitution. 3. Mechanisms have been developed to protect U.S. interests under GATT. 4. The option to end our participation in GATT precludes having given up our sovereignty. Webster's New Collegiate Dictionary defines sovereignty as, "having supreme power free of external control". Webster's New World Dictionary of the American Language defines sovereignty as "being supreme in power, rank, or authority independent of all others". Under GATT, despite the efforts of both political parties, despite the existence of a Settlement Review Commission, despite the provision that if the WTO Panel decides unfairly the President may negotiate a solution, and despite the provision that Congress has the option of ending our participation in the WTO, the indisputable fact remains that the United States of America is no longer a supreme power independent of all others and free of external control. Under GATT, we are not sovereign in matters of world trade and if we are not sovereign in world trade, then we are not sovereign. These truths are self-evident and thus the Congressional vote for GATT was an earth shaking development. Congress, on the other hand, treated the sovereignty issue as an insignificant rider on a trade bill. This is disturbing and highly suspicious. An issue of this import - 125 -
requires far more attention than it was given and most Congressmen being attorneys know this. The democratic principles that underpin our Nation have been compromised by a simple vote of Congress for a claimed gain of $100 billion to our GDP. Is this the price of our Republic and democratic heritage? The obvious truth of the matter is that under GATT, the United States of America has lost its sovereignty and is no longer a republic. Therefore, the vote for GATT was illegal and unconstitutional. Issues of sovereignty can only be addressed by Constitutional amendment. I sincerely hope that Congress recognizes the mistake it has made and properly revisits the sovereignty issue raised by GATT as provided for in Article V of our Constitution. ****** Senator Bob Graham responded to my open letter as follows. Thank you for contacting my office regarding international trade. In June 1993, Congress cleared legislation extending President Clinton's authority to negotiate a treaty strengthening the General Agreement on Tariffs and Trade (GATT). Negotiators from 117 countries reached a consensus in the Uruguay Round of the GATT on December 15. On April 15, 1994, U.S. Trade Representative Mickey Kantor signed the GATT agreement in Marrakesh, Morocco, on behalf of President Clinton. The latest GATT negotiations are aimed at expanding trade among the participating nations by reducing tariffs and ensuring market-access commitments. These actions will help spur worldwide economic growth, increase employment, and minimize protectionism. On November 30 and December 1, the Congress reconvened in a special session to debate and vote on the GATT. The Senate approved the GATT with my support, 76-24, on December 1, 1994. The United States has proven that it will continue to provide global leadership in terms of an open, effective, competitive market system that provides expanded opportunities for people throughout the world. I appreciate knowing your views on this important matter and will keep them in mind should the Senate revisit any related issues. ****** Representative Connie Mack responded to my open letter as follows. It was good to hear from you regarding the Uruguay Round of the GATT trade negotiations. I appreciate hearing your concerns. Many GATT countries provide heavy government subsidies and impose significant tariffs. These trade practices hurt American jobs, and we should explore all opportunities to break down these trade barriers. The American worker is the most productive worker in the world, - 126 -
and has always excelled on a level playing field. Certainly, the United States should only enter into this agreement if it enhances America's competitiveness and serves our national interests. I have several concerns about this agreement, one of which is the World Trade Organization (WTO). According to the Uruguay Round agreements, the WTO would administer global trading rules and settle disputes among member nations. The United States played an important role in negotiating these provisions; yet some still express uncertainty about how WTO decisions might affect the United States. Although the GATT implementing legislation makes it clear that the United States maintains full authority to establish, amend or change its own federal and state laws, Congress must approach this issue cautiously and with careful analysis. Be assured, I will keep your thoughts in mind. When the agreement comes before the Senate for ratification, it will have my support only if it is in the best interest of the United States and of Florida. Again, thank you for contacting me about this important issue. Knowing how you feel on key issues helps me better represent Florida in the United States Senate. ****** Vice-President Al Gore responded to my open letter as follows. Thank you for writing to me to express your concerns about the new Genera Agreement on Tariffs and Trade and the World Trade Organization (WTO). I appreciate your interest in this important issue. As you know, on December 15, 1993, this country successfully concluded negotiations with more than 110 other nations on the most comprehensive trade agreement in history. This agreement, by eliminating barriers to American goods and services around the world, will mean new jobs, higher incomes for American workers, and a strengthened position of leadership for our nation in the global economy. The criticisms raised against this important agreement and, specifically, the establishment of the WTO, are unfounded. Contrary to critics of this specific aspect of the agreement, the WTO does not affect the sovereignty of the United States to pass its own laws, to enforce existing laws or to set its own strong environmental, safety, or health standards. This authority remains firmly vested in the United States Congress. In fact, our sovereignty is enhanced, because a substantially improved and more effective dispute settlement system will permit us to enforce rights under the GATT more effectively. The new dispute settlement process under the WTO includes effective measures for containing subsidies and for dealing with abuses of anti-dumping provisions. For example, under the previous terms of GATT, when the United States won cases, it was very difficult to reap the benefits. Other countries regularly blocked adoption of reports which they deemed adverse to their interests. The new agreement will, for the first time, permit sanctions for - 127 -
failures to implement panel recommendations. Because the United States brings more cases to the world body than any other country, we will be the biggest beneficiaries-of this agreement. Finally, the WTO not only continues, but also strengthens the process of operating by consensus rather than by majority vote. No substantive changes in the rights and obligations of the United States can occur under any of the WTO's provisions unless the United States agrees. This Administration is committed to continuing the process of opening markets abroad for American goods and services under this new agreement. With the recent approval of the GATT by an overwhelming bipartisan vote of the Congress, we have ensured America's active participation in a thriving global economy. ****** I responded to Vice-President Gore as follows. I acknowledge receipt of' your identical letters of December 13 and 17, 1994, in response to my letters of November 30 and December 5. 1994. I am forced to conclude that you have not read this staff written form letter because if you had, I am sure you would have not allowed it to be mailed. The letter is the epitome of deception and sophistry and the author is not qualified to hold public office much less be Vice President of the United States of America. From this point, I will write under the assumption that you wrote the letter in question, even though I am sure you did not. In your letter, you maintain that: 1. The elimination of' trade barriers around the world will result in higher pay for American workers. 2. Our participation in GATT will result in a strengthened position of' leadership for our Nation in World Trade. 3. Under GATT and the World Trade Organization, our sovereignty is enhanced. 4. The GATT agreement, for the first time, will permit sanctions for failures to implement panel recommendations. In 1949, George Orwell wrote "1984" and in that year, many of us were amused that his predictions had not happened. How ironic that just ten years later, the Vice-President of' the United States of' America would resort to classic Orwellian logic to justify a trade bill that is the death knell of' our republican democracy and the onset of a world oligarchy of wealth where the rich and powerful reign Supreme.
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I understand that the United States his one vote in the WTO equal to every other member nation with no unconditional right to veto WTO rulings. You confirm this in statement #4, when you point out that GATT will permit sanctions for a nation’s failure to implement WTO panel recommendations. This being so, how is it possible for you to maintain in statement #3 the sovereignty of our Nation is enhanced. Webster’s New World Dictionary of the American Language defines sovereignty as “being supreme in power, rank, or authority, independent of' all others". If the WTO can impose sanctions on nations that fail to implement its recommendations, then by definition, the WTO is sovereign over its member nations. To deny this truth, a new definition of sovereignty is required. Perhaps Mr. Orwell can help you in this regard. If under GATT, we have one vote in the WTO without the option of an unconditional veto, how can you maintain in statement #2 that our position of leadership in world trade is strengthened? It logically follows that if a nation joins an organization with the power to impose sanctions upon its members, then "leadership" has been surrendered to that organization. A sanction is a strong tool for providing direction and whoever provides direction is the leader. Under GATT, as a member of the World Trade Organization, we are just one of the crowd in an organization where a majority of the membership view us as a nation that has had too much for too long. It is doubtful that we will be an effective leader in such an environment. The standard of living of the American worker is among the highest in the World. In contrast the vast majority of the World's workers are virtual slaves to their employers; earning barely enough to provide their families with the essentials of life. If all tariffs and barriers to trade are lifted, the American worker will be in level competition with the low paid workers of the Third World who greatly outnumber him. This being so, logic and basic economics tell us that the tendency will be for the American worker to be pulled down to the salary level of the Third World worker and not the other way around. To maintain that this situation is to the benefit of American workers and thus our Nation is shear sophistry. George Orwell wrote that "War is Peace", "Freedom is Slavery", and "Ignorance is Strength". Now you and our Congressional leadership have added to these Orwellian truths that "Less is More". In his inaugural address, Abraham Lincoln stated that if we "Continue to execute all the express provisions of our National Constitution, the Union will endure forever it being impossible to destroy it except by some action not provided for in the instrument itself". It should be obvious to any informed individual that not only was the vote for GATT not provided for in our Constitution but worse, the GATT vote grievously violated several Constitutional provisions to such a degree that the Constitution has been rendered dysfunctional. Historically, our government is unique to the World because it was founded unequivocally upon the rule of law; the primary instrument of which is our Constitution. This being so, the legitimacy and validity of our government is contingent upon the principals of governing embraced by our Constitution and faithfully following its precepts. This is especially true in
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regard to the limits and balance of powers granted to the government's Executive, Judicial and Legislative branches. The principles embodied within our Constitution are best expressed by our Declaration of Independence, which states that:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among those are life, liberty and pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers front the consent of the governed." Therefore, according to the Declaration of Independence, citizens have inalienable rights that no government can legitimately take away and government rules by consent of the governed within the limits and constraints established by them. These two fundamental principals of American republican democracy enshrined within our Constitution guarantee our inalienable right to life, liberty, and the pursuit of happiness. Without them, our ship of state is rudderless, adrift upon an uncharted sea and we at the mercy of tyrants. Keeping the above principals in mind, our founding fathers drafted the Constitution and wrote its preamble, which reads: "We the People of' the United States, in order to form a more perfect Union, establish ,justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to our selves and our posterity, do ordain and establish this constitution for the United States of America." Our founding fathers went on to provide that all legislative powers granted by the Constitution will be vested in the Congress of the United States and that judicial power shall be vested in the Supreme Court whose authority shall extend to all cases in law and equity including controversies between a State or its citizens and foreign states, citizens or subjects. The Declaration of Independence and the Constitution clearly establish that the government of the United States derives its power from the will and consent of' its people. Our Constitution states that Congress shall establish the laws we live under subject to review of the Supreme Court, which is also supreme authority in disputes involving foreign nations. The Constitution does not give Congress authority to subject our laws to review or censure by any other governing body especially an undemocratic and foreign one such as the World Trade Organization. Furthermore, the separation of powers established by the Constitution precludes Congress from placing the ruling panels of the World Trade Organization superior to the Supreme Court of the United States. It is beyond comprehension that the United States Congress has usurped the authority and powers of the judicial branch of our government and surrendered this authority and power to an external foreign organization through a simple vote on a trade bill. - 130 -
On September 19, 1796, the Father of our Nation, President George Washington, in his farewell address to the American people said, "Against the insidious wiles of foreign influence, the jealousy of a free people ought to be constantly awake since history and experience prove that foreign influence is one of' the most baneful foes of republican government. The Great Rule of' conduct for us in regard to foreign nations, is in extending our commercial relations, to have them as little political connection as possible." The 103rd Congress of' the United States has not only ignored George Washington's advice, but compounded this mistake by surrendering to foreign control. It is highly ironic that this illegal and oligarcal state of' affairs has been brought about by two national parties which call themselves Republican and Democrat. In consideration of' the fundamental principles that underpin our republican democracy, it is clear that the 103rd Congress by enacting GATT in a fast-tracked lame duck session, has overstepped the authority given to it by the American people as provided for in our Constitution and therefore, has acted contrary to the will of' the American people. Furthermore, these actions have violated the underlying principles and structure of' our Government to such a degree that the Constitution has been rendered an ineffectual scrap of' paper, without validity or substance. This constitutes a change in our system of government and a surrender of the American people to foreign control. I have provided you with my perceptions on GATT and the World Trade Organization. I am human and therefore, fallible. Not only may I be wrong about these issues, but I fervently wish I were wrong. However, the more I dwell on these matters, the more I am convinced I am right. Therefore, Mr. Vice-President, I beseech you and your cohorts in Congress who voted for GATT to explain to my fellow Americans and me why I am wrong. ****** Congresswoman Ileana Ros-Lehtinen responded to my open letter as follows. Her letter was a refreshing change from the ones received thus far. Thank you for contacting my office to oppose the implementing legislation for the General Agreement on Tariffs and Trade (GATT), H.R. 5110. I agree with you. I opposed this legislation based on a broad range of concerns including its impact on our manufacturing jobs, state and local sovereignty, our health and safety laws, and our environmental protection laws. I am concerned that GATT will set up an international super government known as the World Trade organization (WTO) to enforce this agreement, which is dominated by nations, which have voted against U.S. interests in the United Nations. Two-thirds of WTO members voted at least half of the time against the U.S. in the U.N. during 1993.
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However, unlike the United Nations, where the United States has veto power in the Security Council, the United States will have the same voting power as Cuba, or Sri Lanka, or Macao. In other words, Castro’s vote cancels out our own vote. The U.S. would have only one vote out of 123 nations while paying up to 20 per cent of the costs of the WTO. Again, I appreciate your taking the time to let me know your concerns on this important issue. ****** Representative Bill McCollum responded to my open letter as follows: Thank you for contacting me regarding the General Agreement on Tariffs and Trade (GATT). As you are no doubt aware, the GATT Agreement passed the House of Representatives by 288 to 146 and the Senate by a margin of 76 to 24 and has been signed by the President. As you may also be aware, I voted in favor of approving this agreement. In my judgment, as with NAFTA, the GATT Agreement will be of great benefit to the economy of the United States and a net job producer for Americans. By lowering tariffs and other trade barriers, which currently impede the export of many goods produced in the United States, the GATT Agreement will create more jobs at home. Since we have lower tariffs and fewer trade barriers to most foreign made goods than other countries have to our goods, GATT should be very favorable to the United States. The major concern expressed by those opposing GATT centered on the World Trade Organization (WTO) and the possible implications for the sovereignty of the United States under the dispute resolution provisions of the WTO. I carefully examined the agreement and the implementing provisions regarding this matter and found the concerns expressed about the WTO and the dispute resolution process to be generally unfounded. Under the old GATT if the United States violated the conditions and terms of the agreement, the country offended by this could unilaterally take retaliatory trade action against the United States by raising its tariffs on some products that we export to that country or refusing some products that we export or whatever. Under the new GATT and the WTO, the same is still true; however, there is a dispute resolution organization, which is designed to issue advisory opinions as to who is right or wrong in a claimed violation. This dispute body is much like an arbitration panel, which will hear both sides of an argument that the United States (or another country) has violated the agreement. If this WTO dispute panel determines that there has been a violation, an advisory opinion or ruling will be issued but it has no practical weight or effect. There are no fines or penalties that the United States or another country in violation will have to pay. The country found in violation of the agreement is supposed to work out a settlement with the offended (injured) country within a short time period, but there are no sanctions for not doing so. If no settlement is reached between the disputing countries, the country that has been offended by the violation may, just as it could under the - 132 -
old rules raise tariffs or take other trade sanctions against the offending country. In most cases, this does not mean anything and does not happen. Some have suggested that decisions of the dispute settlement body of the WTO would force states of the United States to change their laws. This is simply not so. There is no breach of the United States sovereignty involved at all in any of this since none of it is binding in any way. Of course, Congress could at any time decide to adjust laws of the United States if a majority of the House and Senate concluded that such changes were in the best interest of our nation, but this would take a separate debate and vote on a new piece of legislation addressing whatever problem might be deemed to be interfering with some trade relationship. This could have occurred under the rules that have existed all along in GATT or from bilateral trade relationships in the past between our nation and others long before any GATT existed. There are some provisions passed by the Senate in the implementing language for GATT with which I do not agree. These were not, however, part of the agreement itself and can be changed at a future date by a vote of the U.S. House and Senate without any effect on our trade relationships or this agreement. I hope that such legislative changes are initiated in the new Congress, and I will be fully supportive of them should this be the case. None of these implementing provisions was so egregious that I thought a vote against GATT was warranted (especially since a no vote on GATT may have doomed it from ever being ratified). Again, thank you for contacting me to express your concerns with respect to GATT. I greatly appreciate your interest and hope that you will contact me on other matters of interest to you in the future. ****** Senator Bob Graham wrote me a second time about my open letter as follows: Thank you for contacting my office regarding international trade. In December 1993, negotiators from 117 countries reached a consensus on the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). On November 29 and December 1, 1994, the Congress reconvened in a special session to debate and vote on GATT. The Senate approved the GATT with my support, 76-24, on December 1. The Uruguay Round will reduce tariffs and create a more enforceable set of world trade rules. Included in the Uruguay Round Agreements is a provision, which establishes the World Trade Organization (WTO). Under the previous GATT agreement, there was no simple way to settle disagreements. The WTO will provide a streamlined process of settling disputes between member nations, ensuring that U.S. companies and workers will be able to compete fairly with the rest of the world. Some Floridians have contacted my office to express their concerns that the WTO might infringe upon U.S. or state law. U.S. Trade Representative Mickey Kantor has assured - 133 -
Congress that the WTO will have no power to overturn state or federal law. Any decision to amend U.S. law will remain ours alone to make. Furthermore, the Clinton Administration is expected to support legislation next year to establish a WTO Dispute Settlement Review Commission. This commission would consist of five federal appellate judges, who would review all decisions adverse to the U.S. to determine whether the WTO exceeded its authority. I appreciate knowing your concerns on this important matter and will keep them in mind should the Senate revisit any related issues. ****** Senator Connie Mack responded to my open letter as follows. Thank you for your letter about the Uruguay Round of GATT trade negotiations. I appreciate hearing from you. As you know, GATT was approved by the Congress and signed into law on December 8, 1994. I voted for the agreement because it enhances America's competitiveness and assures continued economic growth. This agreement encourages free trade around the world, which I firmly believe promotes democracy. Not only is GATT good for America, but it clearly benefits Florida with lower tariffs for our exports. GATT will create opportunities by stimulating the development of new jobs and new businesses throughout our state. I am convinced that this agreement is in the best interest of the United States and of Florida. Again, thank you for contacting me about this important issue. ****** Representative Martin T. Meehan responded to my open letter as follows. Thank you for contacting me to express your views on the World Trade Organization (WTO). I appreciate hearing from you on this important issue. I am sure you are aware that I voted for the GATT agreement when it came before Congress last November. The GATT accord is expected to generate more than $200 million dollars in added revenue over the next ten years. Increased international trade is one of the major engines driving U.S. economic growth, and I am certain that this GATT agreement will advance American economic interests. Before voting for the GATT, I studied the implications of the new WTO, an organization intended to help resolve tariff disagreements among countries with Most Favored Nation (MFN) status. Under previous trade law, when the United States accused another country of "dumping" goods in our markets or subsidizing its exports to gain competitive advantage - 134 -
over our products, we had no means of enforcing compliance with fair trade rules. As I understand it, the WTO gives us the authority to punish countries in violation of an order to stop unfair dumping or offset government subsidies. Several amendments to the legislation passed along with the GATT agreement last November were added to address concerns about the WTO's effect on U.S. sovereignty. These amendments seek to ensure that WTO panel appointees are well-qualified and unbiased experts, that the president is kept informed of any changes to WTO panels, and that written complaints to be resolved by the WTO be published in the Federal Register. The implementing legislation also included provisions to preserve our federal and state environmental safeguards. The changes firmly establish the preeminence of our state and national environmental standards over international trade rulings by the WTO. I will continue to weigh the evidence carefully in the coming months. I am aware of the arguments that some critics have made regarding the impact of the WTO on our country's sovereignty. However, the changes made in Morocco and the amendments to the implementing legislation prevent GATT rules from overriding American law, and our government's authority remains notwithstanding the WTO. Again, thank you for taking the time to get in touch. I will take your views into consideration as the debate on the GATT continues. ****** I responded to Representative Meehan’s letter as follows. Since enactment, I have been writing government officials concerning the constitutionality of the congressional vote for GATT and our participation in the World Trade Organization. I have not received a response that mitigates my concerns, identifies flaws in my reasoning, or demonstrated that any of my conclusions are in error. Unfortunately, this is also true for your recently received August 15th letter, which I found deceptive and logically flawed. If your letter is the best justification you can muster for voting for GATT, then this is truly sobering. You maintain in your letter that: 1. The GATT accord will advance American economic Interests. 2. Under previous trade law, we had no means of enforcing compliance with fair trade rules. 3. The WTO gives us the authority to punish countries not complying with fair trade rules. 4. Amendments passed with GATT address sovereignty concerns by: a) Ensuring WTO panel appointees are well qualified. - 135 -
b) Ensuring the President is informed about changes to WTO panels. c) Establishing preeminence of our federal and state environmental safeguards over GATT rulings. In regard to item #1. I assume your conclusion that GATT will advance American economic interests results from reasoning similar to that used to conclude NAFTA would advance American economic interests. This line of reasoning, proven flawed for NAFTA, is also flawed for GATT. To wit; a level playing field where American workers compete against the World’s peasantry, while beneficial to multi-national corporations, is not in the best interest of the American worker or this Nation. This truth, obvious to most Americans, seems to escape GATT supporters. In regard to item #2. It is not true that we had no way of ensuring fair trade before GATT. Among other things, we could refuse to trade with nations that did not trade fairly, levy tariffs to protect at risk industries, and extend or withhold Most Favored Nation status as an inducement to responsible behavior. Under GATT, any action taken against a wayward trading partner can be reversed by a WTO ruling. How anyone can construe this situation to be to our advantage is beyond the comprehension of anybody but a GATT supporter.
In regard to item #3. Your assertion that GATT gives as authority to punish countries not complying with fair trade rules focuses upon the very heart of my concerns about GATT and the WTO. I am appalled that GATT supporters fail to comprehend the dire implications evident here. As a sovereign nation, no one gives us authority for anything. To be sovereign means you are the authority. To acknowledge an organization exists which gives us authority, means you acknowledge being subservient to that organization. Your own words have confirmed that by voting for GATT, Congress has surrendered its authority and the authority of the Supreme Court to an external foreign organization. In regard to item #4. Your statement that amendments passed with GATT address the WTO's effect on our sovereignty, clearly demonstrate your lack of knowledge about GATT and your inability to understand the concept of sovereignty. Ensuring that GATT panel appointees are wall qualified and that the President is informed about changes to WTO panels does nothing to address issues of sovereignty. Furthermore, Article XVI, paragraph 5, of the GATT agreement states, no reservations may be made in respect to any provisions of this Agreement. This being so, amendments passed by Congress will not, as you maintain, - 136 -
establish the preeminence of state and national environmental standards over GATT rulings. The bylaws of the WTO preclude us from passing laws that limit its authority over United States law. I am at a loss to understand why GATT supporters are so enamored about the concept of “fair trade”, that they are willing to sacrifice the sovereignty of our Nation to achieve it. What is fair trade? From my perspective, trade is fair when both parties trade of their own free will without deception. Do we need a World Trade Organization to achieve this? Whatever happened to the concept of free trade? How free will trade be when it is controlled by a bunch of faceless bureaucrats meeting in secret behind closed doors? If this setup is your conception of what is best for the United States and the rest of the World, I think you should reassess your commitment to the concepts of freedom and democracy. As a Congressman, you swear to uphold and defend our Constitution. Your vote for GATT abridged the voting rights of Americans and subordinated Congress and the Supreme Court to the ruling panels of the World Trade Organization in flagrant and gross violation of the provisions of our Constitution. Arguments to the contrary offered to date by Congress and the office of the Vice-President are, without exception, flawed and trivial. This being so, assuming Congress and the White house are not peopled by mental deficients, one is left with the conclusion that a hidden agenda is at play. That being the ease, it follows that our Government is engaged in a deception of the people they are pledged to serve and protect. I fear for my Nation and its people. I am also appalled we paid you so well to do this to us. ****** Representative Meehan forwarded my letter to him to Representative Alcee L. Hastings, the Congressional Representative from my home District and he wrote me as follows. Your letter to Congressman Meehan regarding GATT was forwarded to me because you live in Florida's 23rd district, which I represent. I welcome the opportunity to respond. You will be pleased to learn that I did not support the GATT agreement. I voted against the treaty because of my concern for the security of American laborers and American businesses. I do not, however, agree with you that joining the World Trade organization is a violation of the Constitution. Thank you for contacting me to express your position. If I may be of assistance to you in the future please do not hesitate to contact me. ****** It was gratifying to know that Representative Hastings welcomed the opportunity to respond to my letter to Representative Meehan. The only problem was he did not provide much of a response. Because of this, wrote back as follows. - 137 -
Thank you for your response to my letter to Congressman Meehan and offering to be of assistance to me in the future. I am desperately in need of assistance at this time. I am gratified that you did not vote for GATT but am perplexed by your belief that our joining the World Trade Organization does not violate provisions of the Constitution. From my perspective, the Constitution has been so clearly and grievously violated that anyone knowledgeable about the facts of the situation would not, in good conscience, conclude otherwise. You are a lawyer, former judge, and my Congressional representative. This being so, you may be the best person to help me and my fellow citizens out of the dilemma we now find ourselves in. I hold an undergraduate degree in Aerospace Engineering from the University of Michigan and an MBA from Long Island University. I am an honorably discharged veteran who served his country as a Navy Fighter Pilot. Presently, I am a Public Servant who takes his responsibilities seriously and in the course of my duties, drafts ordinances for consideration and enactment. In other words, I am an educated and well-read person, conservative in outlook, who loves his country dearly, but who is also deeply troubled by legal implications and precedents established by the GATT accord. My feelings in this matter are so deep and strong that I have a hard time not seeing GATT supporters as violators of their oath of office and their pledge of allegiance to this Nation. I do not want to believe these things because they leave me troubled and upset, but no government official has responded to my concerns in a reasonable and intelligent manner. The official position seems to be, you are wrong because we say you are wrong and we know best because we are the government. Therefore, be quiet and do not ask any more questions. I will not be quiet because I believe I am right and cannot convince myself otherwise. Further-more, I cannot accept a government that does not answer to the people of this Nation no matter how big and strong that government thinks it is. I am writing as a concerned citizen on behalf of all the people of this Nation and that makes me bigger and stronger than any government. This truth is what America is all about! My perceptions are that the GATT accord is unconstitutional because: 1. Article 1, Section 8, of the Constitution gives Congress the power to regulate commerce with foreign Nations. The GATT accord surrenders the power of Congress to regulate commerce with foreign Nations to the Ruling Panels of the World Trade Organization. 2. Article 19, Section 2, of the Constitution states that the judicial power of the United States shall extend to all cases in law and equity arising under the Constitution including controversies to which the United States shall be a party, treaties made or which shall be made, and controversies between a State and foreign states.
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The GATT accord surrenders the judicial power of the Supreme Court, in these matters, to the Ruling Panels of the World Traded Organization. 3. Amendment XV, Section 1, states that our right to vote shall not be abridged. When we vote, we determine who will represent us in Congress and establish the rules and laws we live by. The GATT accord subordinates Congress and the Supreme Court to the Ruling Panels of the WTO as described above. Therefore, in matters of world trade, we no longer vote for the people who establish the laws we live under and thus our voting rights have been abridged. If the words above accurately portray the situation that presently exists in regard to our Constitution and the GATT accord, as I believe they do, then anyone should see that the GATT accord is unconstitutional. Thus the basis of my dilemma. I wish I were wrong about this but cannot find a way to dismiss the hard cold facts of the situation without unreasonably modifying the definitions of the words being used. Please help my fellow Americans and me by providing an explanation as to why you believe the GATT accord does not violate the three Constitutional provisions listed. A detailed response from you will be more than appreciated; I do not sleep very well anymore. ****** Representative Meehan apparently decided to acknowledge receipt of my letter to him and mailed me the following: Thank you for contacting me to express your concern with my position on the World Trade Organization. I am sorry that we seem to disagree on this important issue. Representing the views of 30,000 constituents is often a difficult task. I try to ensure that my position on issues reflects the majority opinion in my district. Again, thank you for getting in touch. Although we disagree on this issue, I think we share an important commitment to the integrity and economic health of the United States. Please feel free to contact me again on this or any other matter of concern to you. ****** I do not believe Representative Meehan and I share an important commitment to the integrity and economic health of the United States, so I wrote him again about my beliefs. Thank you for your letter. I realize the last thing you want is a response to that letter and I apologize for writing again, but the issues we are addressing are so important that a response is necessary. - 139 -
I applaud your efforts to ensure that your views reflect the majority opinion in your district. However, I believe you have failed in this regard as far as your support for GATT is concerned. I believe that the GATT accord is clearly unconstitutional and that any informed and unbiased individual would agree with this conclusion. Neither you nor any other government official has been able to demonstrate why this is not the case. Furthermore, I seriously doubt that a majority of your constituents would support or condone your voting to abridge their right to vote by subordinating Congress and the Supreme Court to the Ruling Panels of the World Trade Organization. The GATT accord violates Article 1, Section 8, of the Constitution by surrendering the power of Congress to regulate commerce with foreign nations to the WTO, violates Article III, Section 2, by surrendering the judicial power of the Supreme court concerning trade matters to the WTO, and thus has also violated Amendment XV, Section 1, by abridging the voting rights of all Americans. In the course of doing these terrible things we have agreed to abide by the rules and rulings of an organization of many nations, many of which have governments of a questionable nature, where we have one vote and no right to veto, where the by-laws specifically provide for giving developing nations favorable consideration and treatment, where the ruling authorities meet in secret behind closed doors, and where we have agreed to pay 20% of all operating costs at a time when this Nation is essentially bankrupt and must borrow money to be a member. All of the foregoing being true, I would have to be extremely naive to believe that your constituents support your position. The GATT accord is so flagrantly un-American and anti-American that one is hard pressed not to wonder if we have just lost a war and that the accord was forced upon us by the victors as punishment. I would like to think we share an important commitment to the integrity and economic health of the United States, but in all honesty, I am not sure you do. Being a GATT supporter makes you a globalist and being a globalist, in my opinion, you are willing to compromise the economic health of this Nation, to enhance the economic health of the nations of the World, which you perceive as ultimately being in the best interest of this Nation. Admittedly, this may be a noble goal and I will not fault you in this regard, but the ends do not justify the means. GATT was passed by a simple majority vote on a trade bill in a lame duck session of Congress and its passage changed the nature and form of our government. No matter how noble the goals, the Congress of the United States of America has no authority to change the nature and form of our government other than by amending the Constitution. My responsibilities as an American are to be loyal to my country and obey its laws. My fellow Americans and I expect nothing less from our National leaders. Unfortunately, by enacting GATT Congress has violated the highest and most sacred laws of this Nation. This being so, how can you or any GATT supporter claim to hold a commitment to the integrity of our Nation? Adherence to the law under the Constitution is the essence of our integrity. ****** Finally, Representative Hastings wrote to me as follows: - 140 -
Thank you for your follow-up letter to me regarding the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). I am sorry that you were disappointed with my vote in favor of the GATT treaty. Frankly, you raise some very legitimate constitutional issues regarding GATT. While I am not convinced that the United States should withdraw from the treaty (as you know, there is a two year withdrawal period), you certainly have given me much to think about. It would not surprise me if a court agreed to consider just such the arguments that you have made. My commitment to free and fair trade worldwide is unwavering. I still think treaties such as GATT and the North American Free Trade Agreement will benefit not only the United States but also all countries who participate. It is a win-win situation for the U.S. economy and therefore our citizens. While we continue to analyze the impact of GATT, I assure you that I will keep your views in mind when other trade legislation is considered before the House. Again, thank you for your letter. I deeply appreciate hearing your view on this important issue. With kind regards, I remain, Sincerely, Alcee L. Hastings, Member of Congress. ****** In Representative Hasting’s first letter, he wrote, “You will be pleased to learn that I did not support the GATT agreement. I voted against the treaty because of my concern for the security of American laborers and American business.” In his latest letter Representative Hastings writes, “I am sorry that you were disappointed with my vote in favor of the GATT treaty. It is a win-win situation for the U.S. economy and therefore our citizens.” From Mr. Hasting’s letters, one can conclude he cast two GATT votes, one for and one against the agreement. Furthermore, from his letters, it also appears that Mr. Hastings does not consider American laborers to be citizens and American business as being part of the U.S. economy. Although arguments concerning GATT received from Vice-President Gore and members of Congress are not as contradictory and convoluted as those offered by Mr. Hastings, upon examination, they are just as absurd. On January 11, 1996, I wrote the following open letter to the People of this Nation. Since enactment of the General Agreement on Tariffs and Trade (GATT) in December of 1994, establishing the United States of America as a member of the World Trade Organization (WTO), a war of words has been waged by a small minority of Americans about the implications and consequences of WTO membership. No government official has provided a reasonable response to the issues raised about GATT and all arguments offered by the accord's supporters have been faulty and illogical. A claim has been made that GATT has changed the nature and form of our government. GATT supporters downplay this assertion as posturing, which, unfortunately, is not true. The GATT accord is truly a monumental development that has significantly changed the - 141 -
nature and form of our government. This is shocking, but the most alarming aspect of the situation is that Americans are unaware of what has happened because the implications of this change have been ignored by the media. So much for the concepts of an informed electorate and balanced reporting. The purpose of this letter is to provide you with the truth and offer suggestions about how to change our lamentable situation. GATT is the ultimate 'red herring'. It is not possible to reconcile World Government with our Constitution, so Globalists posture that GATT is a simple trade agreement in our best interest, nothing is further from the truth. GATT is a dagger that pierces the heart of our Constitution and surrenders the American people to foreign control. We have heard little about GATT since passage because of the outrage expressed by some Americans. The Globalist strategy is to lie low and bide time to minimize public reaction. Unfortunately, if ignored, the WTO's march toward World domination will continue and eventually consume us. GATT, therefore, must be repealed. What is wrong with the advent of World government? If properly constituted and embracing the principles and safeguards within our Constitution, World government may be worth considering. However, the WTO is not property constituted and the provisions of its charter are such that it appears as if this Nation has just lost a war and GATT was forced upon us as retribution by the victors. As a member of the WTO, we have one vote in an assembly of many nations with no veto. Thus, the voice of the 249 million Americans is equal to that of Cuba, Korea, Iran or any other small member nation. Furthermore, the by-laws of the WTO provide for giving developing nations favorable consideration over the interests of developed nations. Finally, adding insult to injury, Congressman John L. Mica, informs us that we must pay 20% of the operating costs of the WTO at a time when our Nation is insolvent and must borrow to meet our commitment. Supporters claim that the GATT will level the playing field of international trade by eliminating protectionist measures and thereby increase trade, economic growth, employment and wages. However, they conveniently ignore that the reason a nation embraces protectionist measures is to protect economic interests within its borders. Therefore, while the WTO may improve the overall economy of the World, it is reasonable to conclude that our economy will suffer. A level playing field where American workers compete with the low paid workers of the 3rd World is not in the best interest of the United States. We have only to look to NAFTA to understand the truth of this statement. Assuming that reduced protectionism will be to our benefit, why do we need the WTO to achieve it? According to GATT supporters, the WTO's enforcement mechanism is needed to ensure that other nations eliminate protectionist measures. Left unexplained is, if elimination of protectionism is so beneficial, why must it be forced upon other nations? Assuming an enforcement mechanism within the WTO is to our benefit, are the alleged gains worth the inherent sacrifice of our sovereignty? GATT supporters maintain that despite the existence of an enforcement mechanism, no sovereignty has been lost. Unfortunately, in order to accept this, it is necessary to change the definition of sovereignty and toss conventional wisdom into the trash bin. Under GATT, the loss of our sovereignty is real and substantial.
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Vice-President Gore maintains that GATT does not affect the sovereignty of the United States to pass and enforce laws or to set its own environmental, safety and health standards. This is true, but the Vice-President fails to add that by adopting GATT, we have agreed to ensure that our laws and standards conform to those of the WTO. Vice-Present Gore also maintains that under GATT, our sovereignty is enhanced because a substantially improved and more effective dispute settlement system will permit us to enforce rights under GATT more effectively. This statement is unsettling and I am appalled that Vice-President Gore fails to understand its implications. First, sovereignty cannot be enhanced. Either you are sovereign or you are not. Secondly, a sovereign nation asks no one for permission. If an organization exists that gives permission, it is sovereign to those receiving permission. Finally, Vice-President Gore maintains that no substantive changes in the rights and obligations of the United States can occur under any of the WTO's provisions unless the United States agrees. This statement is also true, but again left unsaid is the fact that by joining the WTO we have agreed to always agree. The truth of the matter is that by joining the World Trade Organization, Congress has turned itself into its rubber stamp. How GATT supporters fail to see a loss of sovereignty in this is inexcusable. Our Constitution is a living document that survived the test history. Many Constitutional provisions are subject to interpretation and in the past, Congress has done so for understandable and justifiable reasons. For example, the second Amendment states that our right to bear arms shall not be infringed. While these words are clear, no one maintains that they have a right to own and bear heat seeking missiles or nuclear warheads. We accept infringement of the right to own such destructive weapons for the obvious common good. The strength of our Constitution is its flexibility, which allows Congress to meet the needs of a changing society. The problem with GATT is that it has stretched the Constitution beyond its limits to a point where its validity has been compromised. A fundamental principle of our Constitution is that “We the people of the United States", establish our government to provide for our common needs and protect our common interests. In keeping with this, we elect Congressional representatives to enact the laws we live under and the President and Vice-President to lead us. Our supreme judicial authority is the Supreme Court; which is staffed by judges appointed by the President and confirmed by Congress. These branches of Government serve as a check upon each other in the legislative process. Congress passes the laws, but they can be vetoed by the President if not passed by a two-thirds majority or declared unconstitutional if challenged and brought before the Supreme Court. Under GATT, these relationships no longer exist. The World Trade Organization was established to regulate World trade and has the authority to impose sanctions upon members that do not comply with its rulings. The authority to impose sanctions is the keynote consideration that precludes GATT from being a simple trade agreement and turns the WTO into a governmental authority. By joining the WTO, we have agreed to ensure that all existing and future United States laws conform to its laws, regulations, and administrative procedures. By so agreeing, the actions of Congress have been subordinated to those of the WTO and our Supreme Court subordinated to the WTO's Ruling Panels. In consequence, the citizens of this Nation have been detached from their - 143 -
lawmakers and a significant body of law governing us no longer falls under Supreme Court jurisdiction. Our membership in the World Trade Organization is in gross and flagrant violation of Article 1, Section 8, of the Constitution, which establishes Congress as legislative authority for this Nation and Article 111, Section 2, which establishes the Supreme Court as this Nation's highest judicial authority. Therefore, the Fifteenth Amendment, which states that the right of citizens to vote shall not be denied or abridged, has also been violated. This state of affairs clearly constitutes a significant change in the nature and form of our government and for the first time in history, we are governed by legislation passed without representation. It is absurd that a change of this magnitude came to pass from a simple vote on a trade bill in a lame duck session of Congress. Congress has no authority to change the nature and form of our government other than by amending the Constitution. GATT is not a trade bill, but instead, is a major step toward World Government engineered by the Globalists. The United States should not be a member of the WTO because we cannot afford the cost of membership and as members, we cease to exist as an independent nation. For the past fifty-years, Federal fiscal policy has been that of living beyond our means. As a result, we must borrow money to pay our WTO dues. President George Washington, in his farewell address said: as a very important source of strength and security, cherish public credit by using it as sparingly as possible and avoid the accumulation of debt. In times of peace, discharge debts occasioned by war, thus not ungenerously throwing upon posterity a burden that we should bear. George Washington understood that the accumulation of debt (deficit spending), was something that should only occur during times of dire emergency such as war and that to ask posterity (our children) to pay our debts is wrong, He also understood that debt is a threat to our strength and security. Why do today's National leaders fail to grasp that deficit spending has made us weak and ripe for takeover by the Globalists? Why has the advice of George Washington, our first President and the Father of Our Nation, been ignored? Where do we go from here and what can we do about our present situation? The American Revolution gave birth to a new nation the likes of which the World had never seen. That Nation became the most powerful in the World because its government was of the people, by the people and for the people. Beset by all our troubles, we still are the greatest nation in the World, but this will soon pass if Congress continues on its chosen path. Therefore, it is imperative for us to change Congress. These truly are troubled times. For the first time in history, we have witnessed terrorist acts by Americans perpetuated against Americans on our own soil. The events at Waco, Oklahoma, and Ruby Ridge were regrettable crimes against the people of this Nation that shed the innocent blood of our friends, relatives, and fellow citizens. The fact that these events occurred is unconscionable and all Americans who care about their country should condemn the perpetuators of these crimes. By passing GATT, Congress has broken the highest and most sacred laws of this Nation, but this does not justify taking the law into our own hands. If we are so foolish, our lawlessness will beget lawlessness and be used as an - 144 -
excuse to further restrict our rights and freedom. The mechanisms exist to save this Nation through legal and proper means, but to do so we most join and act together as one people. If we fail in this, we will have the kind of government we deserve and bullets or bombs will not change anything. What must be done? 1. We must wake up and understand what is happening. Toward this end, do not read and discard this letter. Copy and give it to as many people as possible. Americans have a right to be informed and it is indisputable that we are woefully uninformed about GATT. Please help change this by delivering this letter to your relatives, friends and neighbors. The survival of the Nation we know and love is at stake. 2. Write a letter to the President and your Congressional representatives telling them how you feel about GATT and a balanced budget amendment. One or two letters mean nothing, but a flood of letters expressing common concerns will work wonders. Politicians still need our votes to stay in office irrespective of how much money the PAC's give them. 3. Purchase a red ink stamp that reads, “SUBJUGATED BY THE WTO; DEC. 1, 1994”, and use this stamp on letters and correspondence. If we must obey laws not of our making, then we have been subjugated and Americans must understand this. 4. When you display the American flag at home, fly it upside down. Flying a flag upside down is an international signal of distress. Because of GATT, this Nation is in distress. Similarly, when you mail a letter with a stamp that displays the American flag, glue the stamp on upside down. If your flag is displayed on a flagpole at home, display it upside down at half-mast as a sign of distress and in mourning for the death of our Constitution. 5. At large public gatherings such as sporting events, care races, etc., when the Pledge of Allegiance is recited, do not participate. Instead, bow your head in silent prayer for the well-being of our Nation and for a return to Constitutional government. By voting for GATT, our National leaders have violated their oath of office and the Pledge of Allegiance, thus making a mockery of its recitation. 6. The repeal of GATT and the passage of a balanced budget amendment should be keynote issues in the coming elections. We must ensure they are. Balancing the budget alone provides no long-term safeguards or protection. We must settle for nothing less than a balanced budget amendment to the Constitution. Ask candidates if they are pro-GATT, members of the Trilateral Commission, or if they support passing a balanced budget amendment. GATT advocates and Trilateralists are Globalists. Because Globalists place - 145 -
international concerns above National concerns, they necessarily violate their oath of office and thus are not qualified to hold office. Deficit spending is unconscionable because, similar to a pyramid scheme, its inevitable consequence is insolvency and financial collapse. Furthermore, deficit spending has allowed the Globalists in Congress to finance their thrust for World Government with our money. Any candidate that does not disavow deficit spending and support a balanced budget amendment is not qualified to hold public office because insolvency is a threat to our strength and security. If, in an election, no qualified candidates are evident, do not vote in that contest. It sounds un-American to tell people to not vote, but why vote for someone that places expediency and global interests above the interests of this Nation. Under these circumstances, the best vote possible is none. Our Nation is in serious peril because of GATT and the unjustifiable spending binge of Congress. Now is the time for Americans to act and not just complain about how bad things are. We can and will change our present situation if we act together as one people. However, we must act! Think of the millions of Americans that paid the ultimate price in the service of their country. Their sacrifice will have been in vain if we do nothing about our current crisis. The coming elections are the most important in history. Let us show the politicians that they work for us and that we will not accept a government, which is not of the people, by the people and for the people.
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Chapter Fifteen A GATT Appeal to the Supreme Court
Recently, Newsweek Magazine printed an article by Jang-Hee Yoo, Ph.D., President of the Korea Institute for International Economic Policy, member of the Presidential Commission for Globalization, member of the Eminent Persons Group, APEC, and member of the Korea-America 21st Century Council that was paid for and sponsored by the Institute of Asian Economies. In his article, Mr. Yoo states: In January 1995, the world witnessed the emergence of a new international economic order with the launching of the World Trade Organization. The WTO will be more effective than the GATT in governing international trade. Rules and regulations governing international trade will be more strongly enforced A worldwide market for goods and services is replacing a world economy composed of relatively isolated national markets. Firms need to globalize their business activities and move production sites to the most efficient locations throughout the World. ****** If anyone has doubts about whether the WTO is a World Government, they should be dispelled by Mr. Yoo when he states that the WTO is expected to be more effective than GATT in governing international trade. Admittedly, the WTO is a government whose reach is limited to World trade, but a government none-the-less. This perception is also reinforced in Microsoft’s 1996, Encarta Encyclopedia, which states: The WTO was established to oversee and enforce trade agreements. The WTO is a formerly constituted entity whose rules are legally binding on member states. Rulings by WTO officials can be appealed to a WTO appellate body whose decisions are final.
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On July 12, 1995, in response to Mr. Yoo’s article I wrote the following to the Editors of Newsweek Magazine. Mr. Jang-Hee Yoo, Ph.D., in his paid political Policy Forum article "Globalization of Korea under the World Trade Organization”, asserts that in order to survive and remain competitive, Korea must become a globalized nation. At this point in time, the converse is true for us. In order for the WTO to survive, the United States of America must become a globalized nation and it is clear we are moving in that direction. The issues of concern for Americans are; is this change in our best interest and do we support a change of this nature? Our standard of living is among the highest in the World. In contrast, a majority of the World's workers are slaves to their employers; earning barely enough to provide their families with the essentials of life. If tariffs and barriers to trade are lifted, the American worker will be in level competition with the low paid workers of the third World who greatly outnumber him. Therefore, logic and basic economics tell us that the tendency will be for the American worker to be pulled down to the standard of living of the 3rd World worker. This state of affairs is not in our best interest and never could be. Do Americans want to be a member of the World Trade Organization? It is reasonable to conclude that if something is not in the best interest of the American worker, then for our Nation, the answer is no. In the final analysis, a nation is nothing more than a group of people bound together by geography and mutual self-interest. Then why is "globalization" happening to America? It is happening because Congress, in deference to the desires and interests of multinational corporations and contrary to the will and interests of the people of this Nation, is allowing it to happen, helping it happen, and has illegally voted to make it happen. American republican democracy is based upon the principle that our Government is of the people, by the people and for the people. In keeping with this, our Constitution stipulates that we elect representatives who convene in congress to establish the laws that govern us. The Supreme Court serves as a check on Congress and ensures that laws enacted are in keeping with the will of the people as embodied in our Constitution. The Constitution unequivocally establishes that the Supreme Court is "supreme" authority over the laws passed by Congress and in matters concerning relations with foreign nations. Therefore, without amending the Constitution, Congress cannot legally subordinate its authority and the authority of the Supreme Court to any other organization, even if that subordination is limited and only applies to matters of World trade. Mr. Yoo, in his article, states that under WTO, "rules and regulations governing international trade will be more strongly enforced". From this statement, it is clear that the WTO is a governing body with the capability of enforcing its rulings. Therefore, in matters of international trade, WTO regulations and rulings affecting this Nation supersede those of Congress and are not subject to review by our Supreme Court as required by the Constitution. This state of affairs is clearly unconstitutional and the incontrovertible fact remains that Americans are now governed by a set of rules, regulations, and laws not of their making. This situation is unprecedented in history. - 148 -
By illegally voting for the General Agreement on Tariffs and Trade and thereby joining the WTO, the Congress of the United States of America has changed the nature and form of our government from a Republican Democracy to an oligarchy of wealth where multinational corporations and the individuals that control them reign supreme. This state of affairs has rendered the Constitution a dysfunctional document, is contrary to the will of the American people as embodied in our Constitution, constitutes a subjugation and surrender of the American people to foreign control and constitutes an overthrow of the Government of the United States of America from within. ****** Newsweek did not publish my letter. After completing it, I wrote the following request to the Supreme Court of the United States of America. On December 1, 1994, the Congress of the United States of America enacted GATT and by so doing our Nation became a member of the WTO. In my opinion, the vote for GATT was unconstitutional because WTO rules and regulations supersede those of Congress and are not subject to definitive review by the Supreme Court as required by the Constitution. Article III, Section 2, of the Constitution stipulates the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be part; "State" referring to both the States of our Nation and Foreign States or Nations. Therefore, the subordination of Congress and the Supreme Court of the United States of America to a foreign trade organization is a matter where the Supreme Court retains original jurisdiction and may rule upon the actions of Congress without an appeal having been filed. As a citizen of the United States of America, I do hereby respectfully request that the Supreme Court, in accordance with Article III, Section 2, of our Constitution, review and rule upon the constitutionality of the Congressional vote for GATT and America’s participation in the World Trade Organization. Thank you for your attention to this matter. ****** Not receiving a response from the Supreme Court to my request for a ruling on GATT, I called its office to ascertain the status of my request. This telephone call prompted me to write the following letter to William K. Suter, Clerk of the Court. On August 4, 1994, I called your office and spoke to your assistant, Mr. Francis Lorson. He advised me that the Supreme Court only considers cases through the "appellate" process as provided for in Article III of the Constitution. This may be true in practice, but I believe a careful reading of Article III, reveals another avenue of approach to the Supreme Court. My purpose in writing is to ascertain if this is true and to determine how to utilize this approach. - 149 -
ARTICLE III, Section 1, of the Constitution states that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. ARTICLE III, Section 2, Paragraph 1, states that the judicial power of the Supreme Court shall extend to: 1. All cases in law and equity arising under the Constitution. 2. The laws of the United States. 3. Treaties made or which shall be made. 4. Cases affecting ambassadors, other public ministers and consuls. 5. Controversies to which the United States shall be a party. 6. Controversies between two or more states. 7. Controversies between a state and citizens of another state. 8. Controversies between citizens of different states. 9. Controversies between citizens of the same state claiming Lands under grants of different states. 10. Controversies between a state, or the citizens thereof, and foreign states, citizens or subjects. It is clear that Article III, Section I, of the Constitution establishes where the judicial power of the United States shall lie and Article III, Section II, Paragraph I, establishes what areas of law or controversy are included within this jurisdiction. However, Paragraph II of Article III, Section II, goes on to establish that the Supreme Court shall possess two types of jurisdiction: Appellate Jurisdiction and Original Jurisdiction. Appellate Jurisdiction shall apply to all cases in law not reserved for Original Jurisdiction or those deemed to reside within Original Jurisdiction by Congress. Original jurisdiction shall apply to: 1. Cases affecting Ambassadors, other public Ministers and Counsels. 2. Cases in which a state shall be Part ("state" referring to states of the United States or foreign states as specified in item #10, above). The basis of my petition to the Supreme Court is that the Congressional vote for the General Agreement On Tariffs And Trade (GATT) and America’s participation in the World Trade - 150 -
Organization (WTO) as a result of that vote, is unconstitutional because this vote subordinated the decisions of Congress and the rulings of the Supreme Court to those of the WTO. Article I, Section 1, of the Constitution states that "All legislative Powers herein granted shall be vested in a Congress of the United States". According to GATT, the WTO may establish and enforce rules and regulations governing World trade. The WTO is not our Congress and thus, WTO rulings cannot take precedence over the actions of Congress and no outside entity can be given authority to enforce its rulings over the United States or its citizens. Article III, Section 1, of the Constitution states that "The judicial power of the United States shall be vested in one Supreme Court”. According to GATT, the WTO incorporates a dispute settlement mechanism that is binding upon its members, thus making WTO rulings superior to those of our Supreme Court. This clearly contradicts our Constitution's provisions. A fundamental principal of our Constitution and the government it establishes is that the people of this Nation maintain control of our Government through the electoral process. Once elected, the President and Congress, on behalf of the People, establish our laws and determine the staffing of the Supreme Court. The Supreme Court's prime function is to serve as a check and balance upon the excesses of Congress and the President. The Constitution does not provide for subordination of the legislative authority of Congress or the judicial authority of the Supreme Court to an outside foreign organization such as the WTO. Yet this is what has happened. This state of affairs violates the fundamental principles of our system of government, weakens its democratic underpinnings, and is contrary to the will of the People of the United States as expressed in the Constitution. It can be argued that the above conclusions are not true because a mechanism exists for our leaving the WTO and because by joining the WTO, an organization concerned only with matters of World trade, we have only sacrificed a small portion of our sovereignty. The first point begs the issue. Being able to quit the WTO at some time in the future, does not mitigate the fact that until we quit, the WTO has authority over United States citizens and law. The Constitution does not stipulate that an outside entity can impose its will upon as so long as we agree with its rulings and choose not to terminate our relationship with that entity. I believe there is no such thing as sacrificing a small portion of sovereignty. Either a Nation is sovereign or it is not. An important aspect of our legal system is the concept of "legal precedence". Through legal precedence, the body of law guiding this Nation grows and develops. Therefore, it is of critical importance to identify the precedents established by WTO participation. These precedents are that sovereignty can be bartered away on a piecemeal basis and that an organizational entity external to this Nation can hold authority over United States law and citizens. There is grave danger in these precedents and we must consider where they can lead? A likely consequence is that, over time, we will experience steady erosion of the authority of our Government with a corresponding increase in the authority and power of the WTO, to a point where it is a World government. This possibility is not far fetched because in the final - 151 -
analysis, almost anything of import that happens internal to a nation, ultimately affects the cost of its goods and services and thus, its position in World markets. If the WTO is given authority to govern World trade, then its potential reach is enormous. Is the onset of World government bad? This issue can be argued passionately, but good or bad, the fact remains that it is not possible to reconcile our Constitution, with the subordination of the United States of America to a World government. Furthermore, because the WTO is not a democratic institution, from a citizen’s point of view, this eventuality spells the demise of democracy for America and the rest of the World. I do not see how any good can come from this and fail to understand how anyone can, unless of course, they happen to be ensconced among the World’s ruling elite. In my opinion, a careful reading of Article III, Sections 1 & 2 of the Constitution, reveals there is provision for the Supreme Court hearing and ruling upon the actions of Congress directly under its authority of "Original Jurisdiction" without an appeal having been filed. I also believe that the Congressional vote for GATT is an issue that falls under the Supreme Court's authority of "Original Jurisdiction". If this were not true, as Clerk of the Court, would you please explain to me why it isn’t. Specifically, I would like to know the following: 1. From a Constitutional point of view, what is "Original Jurisdiction" and when does the Supreme Court operate under this type of jurisdiction? 2. How does "Original Jurisdiction" differ from "Appellate Jurisdiction"? 3. Has the Supreme Court ever issued a ruling under "Original Jurisdiction"? If not, why not? If yes, when and under what circumstances was this done? 4. If the Supreme Court has never issue a ruling under "Original Jurisdiction", does this preclude it from doing so in the future? 5. In consideration of the fact that the issue being addressed is the subordination of Congress and the Supreme Court to the ruling panels of the WTO, is this not an issue more appropriately addressed directly by the Supreme Court as opposed to a lessor or District Court? Your guidance in this matter of grave National Concern is appreciated. I believe millions of my fellow Americans are as concerned as I am about the issues identified in this letter and I also believe they deserve an answer to the questions raised. Please provide a written response. ****** Mr. Suter did not respond to my letter, so I wrote him again.
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I have not received a response from you to my letter of August 4, 1995. Considering the nature of this letter and its importance to the people of this Nation, I believe a response is necessary. Enclosed, you will find a post card addressed to me. By checking the appropriate box on this card and mailing it, I will be advised of your intentions in regard to my August 4, 1995, letter. Thank you for your attention to this matter. ****** Mr. Suter did not respond to my second letter, nor did he return my postcard. Therefore, I wrote the following letter to the Honorable William H. Rehnquist, Chief Justice of the Supreme Court. Justifiably concerned about the constitutionality of the Congressional vote for GATT and America’s participation in the World Trade Organization, on July 13, 1995, I wrote an open letter to the Supreme Court and requested that the Court consider and rule upon these matters. After receiving no response, on August 3, 1995, I called Mr. Suter's office and was told by his Assistant, Francis Lorson, that the Supreme Court only considers cases brought to it through lower courts. Not satisfied with this response, on August 4, 1995, I wrote Clerk Suter for clarification. Not hearing from Mr. Suter, I again wrote him on September 1st, and asked him to advise me of his intentions by way of a stamped and self-addressed postcard. This postcard has not been returned. Upon writing to numerous government officials about the constitutionality of GATT and our participation in the World Trade Organization, the responses I received reinforced my concerns instead of alleviating them. This motivated me to bring them directly to the attention of the Supreme Court. Mr. Lorson's verbal response to my request for assistance in this regard was not satisfactory, because it does not make sense to file a lawsuit in a lower court to obtain a ruling on a relationship established between Congress, the Supreme Court, and a foreign trade organization. I believe this matter resides out of a lower courts jurisdiction and one that falls squarely within the Supreme Court's purview of "original jurisdiction". I hold the following truths to be self-evident. If government officials ignore a legitimate inquiry from a citizen on a matter of great importance to all citizens, then they can and will ignore similar inquiries from many citizens. If government officials ignore legitimate inquiries from many citizens then that government is not responsible to the citizens it serves. If a government is not responsible to the citizens it serves, then it is not a government of the People, by the People and for the People. It logically follows then, that a people so governed are subjugated. The Fifteenth Amendment says that the right of Citizens to vote shall not be denied or abridged. Article I, Section 8, of the Constitution states that Congress shall have the power to establish duties, imposts, excises, and to regulate commerce with foreign nations. Under - 153 -
GATT, the World Trade Organization is superior to Congress in establishing duties, imposts, excises, and in regulating commerce with foreign Nations, which is a clear violation of Article I, Section 8, of the Constitution. However, this state of affairs is compounded because the right of citizens to vote has also been abridged; thus grievously violating the Fifteenth Amendment. We do not vote for the people who rule the World Trade Organization, but GATT has established that they rule us. This is clearly a serious abridgment of our Constitutional right to vote for the people who establish the laws we live under. Therefore, by enacting GATT, the Congress of the United States of America has grievously violated the most fundamental underpinnings of our Republican Democracy and this is why I claim that the Congressional GATT vote constitutes an overthrow of the Government of the United States from within. Ergo, our Constitutional right to vote has been abridged setting a precedent that our voting rights can be taken away in a piecemeal manner. I beseech you, with this step taken, what else of importance is left? The First Amendment states that Congress shall not abridge the right of citizens to petition the Government for the redress of grievances. This amendment predisposes that when petitioned, it is incumbent upon government officials to address all valid grievances of public concern and if they are not valid, to explain why. In this and past letters I have brought to the Supreme Court's attention serious grievances of grave concern to all Americans and thus far, have been ignored. I feel like a voice crying in the wilderness with no power other than my inalienable right of free speech. As a government official, Mr. Suter has the power, but not the right to ignore me. In consideration of the serious nature of my allegations and the cogency of my arguments, consider this; if government officials continue to ignore me, what does this say about our Government? Can my fellow Americans or I honestly believe we are governed by people answerable to us? Under the circumstances I have experienced so far, the answer to this question is obvious and sobering. Will you please direct Mr. Suter to provide a response to the questions raised in this and my August 4th letter. Barring that, would you please tell me whom I could approach to have my questions answered? Thank you for taking the time to read and consider this matter.
****** Chief Justice Rehnquist did not respond to my letter. I am not a lawyer, judge, or legal scholar. Therefore, one may question how I can posture with such conviction that GATT is unconstitutional and claim that GATT constitutes an overthrow of the Government of the United States. The Constitution was never intended to be a document unintelligible to average citizens. On the contrary, it is a document from citizens telling their government the limits and extent of its power over them. Therefore, in America, all citizens should be - 154 -
authorities in constitutional law. To be sure, the final authority is the Supreme Court, which is supposed to protect the rights of citizens and restrain the actions of Congress and our President. Through the years, the Federal government has steadily increased its authority and control over the American people. However, in the past, while the actions of our Government stretched the Constitution to its limit, previous actions were not in gross and flagrant contradiction of its most fundamental provisions. GATT, unfortunately, is so to such an extent that if allowed to stand, it renders the Constitution dysfunctional. Chief Justice John Marshall of the United States Supreme court would agree with this conclusion as stated in his 1803 opinion, rendered in the case of Marbury v. Madison, establishing the authority of the Supreme Court over the laws passed by Congress. Chief Justice Marshall wrote: “The question whether an act, repugnant to the Constitution, can become law of the land is a question deeply interesting to the United States but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as in their opinions shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on which they are imposed and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it or that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it. - 155 -
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power, in its own nature, illimitable. Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation and consequently, the theory of every such government must be that an act of the legislature repugnant to the Constitution is void. This theory is essentially attached to a written constitution and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature repugnant to the Constitution is void, does it, not withstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow, in fact, what was established in theory and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules govern the case. This is of the very essence of judicial duty. If then, the courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such ordinary act, must govern the case to which they both apply. Those then, who controvert the principle that the Constitution is to be considered, in court, as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government is entirely void, is yet in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality ineffectual. It would be giving to the legislature a practical and real omnipotence, with the same breath,
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which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But, the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises. This is too extravagant to be maintained. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens, that a law repugnant to the Constitution is void and that the courts, as well as other departments (Congress) are bound by that instrument. The (repugnant) rule must be discharged (repealed).” ****** In case you missed the points made by Chief Justice Marshall and how it applies to the Congressional vote for GATT, I offer the following: GATT is an ordinary legislative act passed by Congress. GATT stipulates that the decisions of the WTO’s ruling panels are final and binding upon its members. The Constitution states that the judicial power of United States shall be vested in the Supreme Court. The GATT provision that decisions of the WTO’s ruling panels are final and binding upon members is in contradiction with the Constitutional provision that the Supreme court is final authority in all cases in law and equity that arise under the Constitution. Therefore, GATT, being an ordinary legislative act passed by Congress, is repugnant to the Constitution. If GATT is repugnant to the Constitution, then GATT is not law, is void, is not binding upon the American people, and must be discharged (repealed). If GATT is not repealed, then it is established that Congress can alter and modify the Constitution by ordinary legislative act, that the Constitution is not superior to ordinary acts of Congress, and that, contrary to the most - 157 -
fundamental principals upon which the Constitution is based, the powers of Congress over the people of this Nation are unlimited. If the powers of Congress are unlimited, then the very foundation of our written Constitution has been subverted and what has been deemed as being the greatest improvement upon political institutions has been reduced to nothing. If the very foundation of our written Constitution has been subverted reducing the Constitution to nothing, then the Government of the United States of America is a government without law and has been overthrown from within. It is extremely difficult for the average American of today to accept that our government has been overthrown. However, if one reads the writings of our founding fathers and other leading citizens who witnessed the birth of our Nation, they would all agree with this shocking conclusion. For example, President George Washington, our first President and the father of our Nation, in his farewell address given on September 19, 1796, said: “It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever form of government, a real despotism. A just estimate of that love of power and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us the truth of this position. The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories and constituting each the Guardian of the public weal against invasions by the others, has by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.” By enacting GATT, Congress did not usurp the judicial power of the Supreme Court for itself. It did something far worse; it usurped and surrendered its legislative power and the judicial power of the Supreme Court to a foreign government. In his farewell address, President Washington also said: - 158 -
“As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice arts of seduction, to mislead public opinion, to influence or awe the public councils. Against the insidious wiles of foreign influence, the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government.” If Congress usurped the power of the Supreme Court for itself, President Washington would conclude that this act contributed to the destruction of our government. In the light of President Washington’s beliefs about foreign influence, it is reasonable to conclude that he would have even stronger feelings about Congress surrendering its power and that of the Supreme Court to a foreign government. President Washington, were he alive today, beyond doubt, would view the purported gains offered by Vice-President Gore and members of Congress to justify their support of GATT, as being nothing more than transient benefits that have institutionalized, within our government, a permanent evil that is surely the instrument of its destruction.
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Chapter Sixteen Conclusion
About a year ago, I had occasion to hear a presentation by a retired member of Congress. While I do not recall his name, I remember he was a Democrat. I was impressed by his professional manner and speaking ability. However, I was not impressed by what he said. Essentially his presentation boiled down to concluding that because, on any given issue, a multitude of constituents could be found supporting either side, a Congressman was free to vote as he wished without responsibility for the consequences of his vote. As I listened to this Congressman, I thought to myself, so that is what leadership has come to in the United States of America. People hold diverse opinions on issues; therefore, our leaders are not responsible for where they lead us. In philosophy, there are two fundamental schools of thought: Subjectivism and Realism. Subjectivists dismiss the existence of an objective reality external to the mind as a frivolous concept because, in the final analysis, the only things we know are thoughts. Therefore, reality and everything we perceive as being a part of the world, is nothing more than a thought in the mind of man. This being true, then all things are possible because all thoughts are possible. Realists, on the other hand, believe there is an objective reality or universe external to the mind and to be successful members of that universe we must ensure our thoughts and actions are in tune with it. In politics there are also two fundamental schools of thought: Liberalism and Conservatism. Liberals are Subjectivists. They believe that government, being the final authority in everything, has no constraints or limits upon what it should and can do. Conservatives, on the other hand, are Realists. They believe there are a limits and constraints upon governmental action and that sound governing is based upon fundamental principles that never change. Liberals view the Constitution as a general guideline for governing, but only that. Therefore, nothing in it is sacred and as circumstances change, the Constitution can be reinterpreted to accommodate those changes. This being so, the Constitution does not constrain or restrict government in any manner. On the other hand, Conservatives view the Constitution as a sacred document and an expression of the will of the people as to how they wish to be governed. It is not just a guide for government action, but specifically was created to constrain and restrict government action. The frustrations that Americans have with their government, today, arise from the differences in these two political schools of thought. Politicians, naturally, hold a liberal view toward governing, while citizens, for the most part, are conservative in outlook. - 160 -
Nothing illustrates the disparity between liberal and conservative philosophies better than deficit spending. Because the deficit is only money we owe ourselves, a Liberal believes there is no limit as to how much we can borrow. They maintain this is especially true because government creates money. Why be constrained by debt when debt is nothing more than a numerical tabulation of something we can produce at will? A conservative believes that money is an extension of our Nation’s wealth and while government can create money at will, should do so cautiously to avoid financial instability and hyperinflation. A conservative realizes there is a limit to the amount of debt a Nation can carry and like President George Washington, believes deficit spending should not be used to fund routine governmental expenditures. If it does, then government is not managing the affairs of state properly. Unfortunately for America, there are very few conservatives left in government, and many of those claiming to be conservative, really are not. Most politicians, whether Republican or Democrat and irrespective of a liberal or conservative label, believe there are no limits to federal power, that the Constitution does not restrain the actions of Congress, that government is accountable only to itself, that there are no underlying principles of governing that should not be violated, and that they can spend our money without concern or restraint. What is wrong with America? The natural inclination of people to be greedy combined with a prevailing liberal philosophy and the corporate seduction of those elected to serve us, has led to a situation where corporate values prevail and are dominant. The primary operating imperative of Government in America today is not to ensure that everyone enjoys equal rights and opportunity under the law, but similar to a corporation, to serve itself first and maintain control through all means available, irrespective of Constitutional and citizen concerns. In keeping with this warped approach to governing, while we sleep, our government has dismantled the checks and balances that exist to restrain its actions, including those embodied within the Constitution. This situation has progressed to such a degree that government in America is no longer accountable to its people and we are, in fact, subjugated. How can we rectify this situation? People are presently trying to change things. The Republican’s have proposed a Contract with America. On the surface, this is a good idea and includes some worthy proposals. However, it is difficult to be enthusiastic about a new contract when our original contract, the Constitution, has been grievously violated. If our original contract had been followed, we would have no need of a new one. Ross Perot has launched a new Reform Party. If successful and if this party lives up to its goals and objectives, America will be on its way to restoring the fundamental conservative values in government upon which this Nation was founded. Unfortunately, while adored by his followers, Mr. Perot is considered a wild card in American politics, by a significant number of Americans. They believe he has a lot of - 161 -
good ideas, but will a party of political neophytes, under Mr. Perot’s leadership, be able to manage our Ship of State effectively? These concerns are well taken. However, we must ask ourselves, how effective have the Democrats and Republicans been in managing our Ship of State? In consideration of the fact that we are insolvent and our Constitution torn asunder, how much worse can things get if we are led by a group of people who least understand what it means to be a loyal American. Unfortunately, some of us have decided to change things through terrorism. During the past few years, we have witnessed terrorist acts perpetuated by Americans against Americans on our own soil. The horror of this development is beyond comprehension and not just because innocent blood is being shed. Such senseless and despicable acts of destruction are self-defeating and futile. As patriotic Americans, our goal should be to restore constitutional government to our Nation. The senseless and needless shedding of blood, innocent or otherwise, will only work against this goal and lead to more oppressive measures. This in turn, will polarize the Nation further, encouraging more terrorism, which, will lead to a further erosion of our rights. The end result of this downward spiral will be, at best, the wholesale trashing of our rights under the Constitution or, at worst, a second Civil War. If this is the goal of the more radical among us, then stop now and consider what will be accomplished by the path you have chosen. The United States of America is the noblest and most far-reaching experiment in representative government in modern times. If, after 200 years of success, this experiment fails and anarchy ensues, what is standing in the wings to replace it? For all its faults, can anyone think of a government that has served its people better? With GATT, our government has gone astray, but bullets and bombs are not the way to bring it back on course. The only reasonable action open to us, is to make our government work properly through legal means. How can this be accomplished? By becoming the kind of citizens we are supposed to be; law abiding, involved, and committed, but most importantly; untrusting. We must wake up and work at improving our government by taking steps to ensure that those elected to serve us, do so and not themselves at our expense. Here is what must be done. NAFTA and GATT must be repealed. We must have Whistleblower laws that encourage whistleblowing and truly protect Whistleblowers. In the final analysis, Whistleblowers are citizen watchdogs internal to government. Wrongdoing, brought to light, is always in the public’s best interest. Anyone, who retaliates against a whistleblower, is acting against the public’s best interest and committing a crime far more serious than anything a Whistleblower could find or report. Time limits on responding to retaliatory actions against Whistleblowers should be extended and the clock on these limits should - 162 -
start after the Whistleblower leaves his organization of employment. Whistleblowers should be able to sue for both compensatory and punitive damages. Governments should not be allowed to insure its administrators against lawsuits brought by Whistleblowers, nor should they provide legal services to those administrators. Whoever takes retaliatory action against a Whistleblower is an enemy of the people and should be treated as such. In the final analysis, employees in the Public Service work for the citizens who pay their salaries and should be beholden only to them. Unfortunately, the Civil Service System in place within this Nation is such that it serves those in positions of Authority at the expense of citizens. This situation prevails because those in positions of Authority determine who is hired and who is promoted. The process of hiring and promoting employees should be removed entirely form the administrative span of control of those in the public service and accomplished through an independent contractor answerable only to a Civil Service Board made up of citizen volunteers. Administrators should be told who their subordinates will be, not select them. Employees in the public service should be rewarded for good works and extraordinary service to the public, not for fulfilling their supervisor’s misguided desires to increase their authority and power. No administrator in the Public Service should have the right or authority to ignore or violate rules and any employee who believes a personnel rule has been violated to anyone’s detriment should be able to bring this situation a Civil Service Board. Detriment should be defined as being any action that reduces the status, pay, or promotional opportunities of an employee. Pay scales, benefit packages, and retirement plans within the Public Service and for elected officials, should mirror those in private industry. In days gone by, Public Service employees were paid less than their private industry counter parts. To compensate for this disparity, they enjoyed enhanced benefit packages. Today, both the pay and benefit packages of public service employees, exceed those of private citizens. This situation is unconscionable and contributes to the impression that America is governed by an elitist organization that places its own interest ahead of the interest of citizens. Furthermore, a frightening aspect of this situation is the element of power that it gives management over the public workforce. If public service employees enjoy levels of pay and benefits that exceed their private sector counterparts, they will be more willing to compromise themselves to keep the job they have. No one wants to lose a job knowing that, once lost, the likelihood of finding another at the same compensation level is remote.
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A condition of accepting public office or public employment should be that the financial affairs of individuals hired or elected should be subject to public scrutiny. Tax returns of all elected officials and employees of the Public Service should be classified as public documents and citizen review boards established to review them. If anyone feels these requirements are an intrusion on their right to privacy, then that person has the option of not being a public servant. If a person truly wishes to serve the public, then they should have no problems with public scrutiny of their financial affairs. If they do, they are not the kind of public servant this Nation needs. It should be forbidden for elected officials or government employees to accept gifts, trips, junkets, meals, or anything of value from private citizens, lobbyists, corporations, organizations, or any other special interest group. Furthermore, full-time elected officials, during their term of office, should be prohibited from receiving any compensation other than the salary associated with the office they hold. All assets owned by elected officials, upon their election, should be placed in a blind trust. Candidates for public office should be limited to raising funds for their election from the voters they represent and a limit of $500.00 established for each contributing voter. No contributions should be allowed from lobbyists, corporations, organizations, PACs, people not registered to vote, or any other special interest group. Contributions should be considered to be anything that has monetary value. Lobbying by any individual or organization paid to do so should be prohibited other than by formal written communication which becomes a public document upon delivery. In a democracy, the rights of individual citizens are paramount. Corporations, special interest groups, or any other organization should enjoy no advantage to influence legislation over what is available to an ordinary citizen. Ordinary citizens cannot afford to hire lobbyists to present their point of view to elected officials, therefore no corporation, special interest group, or organization should be allowed to do so. This is especially true of foreign governments or corporations. It is unconscionable that we allow foreign governments to lobby our elected representatives and attempt to influence legislation that we have to live by. Our elected representatives should be working only for the best interests of their constituents. To allow organizations to have more influence over them than the voters who put them in office, is a perversion of the democratic process. A balanced budget amendment should be passed and deficit spending prohibited except in times if dire national emergency. Deficit spending, in the final analysis, is nothing more than a pyramid scheme raised to the National level. Elected officials who subscribe to deficit spending are con artists who want you to believe that we can have something for nothing. - 164 -
We elect people to go to Washington to manage the affairs of the Nation. Deficit spending permits them to avoid difficult decisions and manage nothing, while giving constituents the impression that they are accomplishing something worthwhile. In the short term, this may be the case, but who will be left holding the bag when the bills becomes due. The elected official and those benefiting will be long gone when this happens and our children will bear the burden of our selfishness and greed. ****** America is supposed to be a Nation of Law. The primary purpose of our Constitution, the most sacred law of the land, is to delineate how our government operates and define the limits of its power. Today, the government of the United States of America is a government without law because the Constitution has been rendered dysfunctional. It no longer serves to define how our government operates nor does it limit the power of government. The Congressional vote for GATT is irrefutable and incontrovertible evidence of this. The only aspect of our Constitution that remains functional today is that, to some degree, our rights are protected. However, the protection of rights, alone, is not what America and the government of America, is about. What good are rights if the power of government is unlimited? A government with unlimited power can give and take away rights at will. Our constitution provides that our government can only be changed by Constitutional amendment. If it has been changed by usurpation, then the Constitution is dysfunctional and our government overthrown. I submit to my fellow Americans, that while we sleep, that is exactly what has happened.
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