Graham v MOA #5: A Much Better Overview Of Why This Case Is Important

Graham v MOA - Overview of Why It’s Important

[This is an overview to explain what I see as a major problem.

MOA = Municipality of Anchorage AFD = Anchorage Fire Dept

 My evidence in this post is minimal.  This series of posts will offer detailed evidence.]

1. There was a wrongdoing.  Jeff Graham was intentionally and unfairly denied promotion.   This was proven in court to the satisfaction of the jury.  
2. The problem is structural and individual.
1. The exam process did not follow the MOA Charter requirement that it comply with ‘merit principles’.  Instead the oral exam (particularly) was so subjective that graders could give whatever score they wanted.  The only remaining evidence was the sketchy notes of the graders.  No recordings, audio or video.  This subjective exam was abused to prevent Jeff Graham from promoting.
2. The exam was part of a good-old-boy system that demanded loyalty and punished those who didn't toe the line.
3. The wrong doing was aggravated by the response to Graham’s protest of the exam.  It was not taken seriously, there was no investigation.  Constructive critiques of the exam by two other firefighters were also ignored.
4. In court, evidence was presented (and not refuted by the Municipality) that the head of the training academy said he would never let Jeff Graham promote.

 ******************************************

After Jeff Graham was told he had failed the oral exam, he filed a complaint.  The complaint was never followed up on by AFD beyond a quick rejection.  In addition, two other fire fighters also filed more generalized constructive critiques of the exams that also were ignored. 

The correct response, in 2012,  to Graham’s complaint about the exam would have been to look into the complaint, to look at the exam.  Anyone with professional testing and training knowledge and experience would have recognized the problem with the test immediately.  

Another correct response (given AFD demographics - about 2% female and about 85% white) would have been to seriously examine why the demographics are so different from Anchorage demographics.  They could have, for example, hired objective outside experts to meet with people of color and women in the department to find obstacles to entry and promotion so that more underrepresented groups could get into and promote within the system.  

Instead of investigating and correcting the problem, the department saw Jeff Graham as the problem and the department pulled all its forces together to fight him when he got no response and finally sued the MOA.  Organizations count on their greater resources to keep people like Graham from taking them to court.  But Jeff Graham felt seriously wronged and wanted to correct the injustice he had suffered.  

Why did this happen?

1. People in charge of testing and promotion were not qualified.  There is a state certification program. The test makers only had Level 1 certification and thus were not certified to make a test, only to administer a test created by someone with Level 2 certification.
2. Accountability systems - like the Human Resources Department - did not do their work to insure the exams complied with merit principles.
3. The system has aspects of a good old boys system where if you fit in with the crowd and you stay quiet and loyal, you might get ahead.  This is not unusual, and we are currently seeing nationally the consequences of such systems in the sexual assault scandals.  If people are afraid to speak up, wrongs go on forever.  

Therefore, the highly subjective oral exam allowed the good old boys to select who they wanted to promote and in Graham's case, keep out the ones they didn't want to promote.  And this promotion exam was the only passage way up the ladder from the position of fire fighter.  

Why should you believe what I say here?  Lots of reasons.

1. My expertise.  I have academic training and practical experience in the field. I have a PhD in public administration, with a masters level specialization in personnel management.  I worked as special assistant to the director of Employee Relations at the MOA for two years (1982-84).  I was chair of the University of Alaska Anchorage grievance committee for two years and I was later the campus and statewide grievance rep for my faculty union. I sat on numerous search committees.  I taught public personnel administration for 30 years.  I’ve also published in this field.
2. My access to the case - I served as an expert witness for the plaintiff.  This allowed me to see much of the documentation of the testing and other activities.  I also attended the trial so I was able to hear the evidence offered by the MOA.  
3. The demographics of the Anchorage Fire Department compared to a) the rest of the MOA and b) the population of Anchorage are abysmal.  The AFD - according to the deposition of the Deputy Chief - has about 2% women and about 85% whites.
4. A superior court jury, after a three week trial, found the MOA guilty of bad faith and unfair treatment in Jeff Graham’s case.  They awarded him $660,000.  (The judge later approved additional legal fees.)
5. A fire fighter eyewitness testified at the trial that the head of the engineer promotion and testing academy told him and some others that “As long as I’m in charge of promotion, Jeff Graham will never promote.”  The city did not refute this testimony in court.  
6. The PowerPoint used to prepare fire fighters for the oral peer review covered slides which point out - unintentionally - some of the problems with the test:
1. “Is This A Popularity Contest?”  - they say they talked about this to dispel rumors, but obviously the rumors must have been pervasive enough that they felt the need to officially address them.  Their proof that it wasn’t?  They simply asserted it wasn’t. And blamed sore losers who'd failed the exam for the rumors.
2. Candidates were told to expect ‘skeletons’ to be brought up at the oral exam.  I'd note the MOA has disciplinary procedures with proper investigations for dealing with behavior that violates MOA regulations.  There were no disciplinary issues with Jeff Graham.  The promotion exam is not the proper place to raise unfounded and unproven "skeletons" against people. 
3. Candidates were told to prepare ‘nuggets’ or stories about themselves that would prove their character and that the nuggets could be ‘irrelevant’ to the job of fire fighter.  I'd note again, that the merit principles require that all criteria for selection and promotion be directly job related and predictive of success on the job.  
7. The oral exams were not validated even though the national fire safety instructor training manual the department uses says that high impact exams such as promotion exams should be validated professionally.  
8. Merit principles require tests that predict who will be good at the job, or what is technically known as 'valid.'   A valid test in this case would mean test takers who score higher will be more successful engineers and those who score lower will be less successful.  There are technical ways to validate a test.  Another key factor is reliability - that the conditions of the test - location, time, graders, etc. - don't bias the outcome.  Tests need people with technical training to ensure a test is valid and reliable.    A number of key people, including the test makers, were unable in depositions to explain:
1. merit principles
2. validity
3. reliability
9. Aside from not being validated, the oral exams were so obviously subjective that they allowed graders great leeway.  There are too many serious problems with the exams to address them here.  But I will in other posts.

As I said at the beginning, a wrongdoing happened and was compounded by the fire department uniting to fight Jeff Graham instead of investigating the problem professionally.  They strongly supported the people who caused the problem and fought against the victim of the problem.  The dynamics of this are the same as the dynamics that have kept so many women (and men) from reporting sexual assaults and even rape.  Fear of retribution kept many fire fighters silent about problems, even though they signed statements that required them to report any violations of the integrity of the exams.  

Thus closing this particular case doesn’t solve the problem.  It’s a systemic problem that still exists.  

Remedies

1. The most basic remedy already exists.  In fact the MOA Charter requires it be used. The Charter requires the application of merit principles in all personnel decisions.  Unfortunately, no one in the fire department involved in the case knew anything about merit principles.  Thus, the first recommendation is to train all the top level executives and all the employees involved in personnel actions where decisions are made about employees (selection, promotion, discipline, etc.) in merit principles and how to apply them.   
2. The MOA needs to hire enough professionals skilled in testing, to 
1. review selection and promotion testing in all departments to be sure tests are valid and reliable and there is accountability if they are not 
2. develop new testing procedures in those departments where tests are not valid and reliable, starting with those most out of compliance
3. train relevant people in the departments 
4. have professionals investigate complaints and suggestions about testing procedures
5. establish procedures to record all oral exams
3. Get demographic data for all departments to determine how close the MOA reflects the demographics of the working age population of Anchorage.
1. This should include age, gender, ethnicity, at a minimum, at all levels of each department
2. Departments below a to-be-determined percent of the general population demographics must develop plans for making their departments more welcoming and for developing pools of qualified candidates for future openings - if necessary, this could use the UAA ANSEP model where recruitment goes as far as preparing  high school students to develop the skills needed in key areas.  
4. The merit principles required in the MOA Charter need to be resuscitated by
1. extensive training of employees and the public on what merit principles are and how they work,
2. reviewing how many current executive level positions should actually be civil service positions with civil service protection from arbitrary firing.
5. Departments need to be much more open to their employees’ suggestions and complaints.  If necessary this means publicizing the role of the ombudsman office more and increasing the ombudsman staff skilled in administrative investigation.  Or setting up an investigation team in Human Resources.
1. This includes the legal department, which should be reviewing the meaning of ‘duty to client’ when they are government employees.  Is their duty to the employee in the department who has the authority to call them in?  Is it to the MOA as a whole?  Is it to the public?  What should they do when these duties conflict?  If the legal department had considered the fairness of the system and what happened to Jeff Graham instead of whether they thought they could beat a discrimination case, this never would have happened.  I'd note this case followed closely a discrimination case in the Police Department that the MOA also lost. Department heads who have done wrong or have allowed wrong to be done on their watch, shouldn’t be able to use the MOA attorneys to cover up their mistakes and persecute employees who are the victims of the wrong doing.  
6. It would also be nice to promote Jeff Graham.  He actually passed the test back in 2008, but a day or two later he was told he hadn’t been eligible to take the test.  It’s true he hadn’t been a fire fighter for the required five years, but he had been a mechanic in the fire department for eight years (and the duties greatly overlap with engineer)  and the HR department and Fire Department waived the requirement because of ‘equivalency’ as they did for other fire fighters.  And in 2012 he passed the written and practical tests with high scores.  But a third exam - the subjective oral exam - was added.  If you fail any one of the three exams, you can’t promote.  Graham failed the oral exam by one point after a ‘skeleton’ in the form of a rumor he’d never heard about before was sprung on him in one question.  (Each question had about four minutes to be addressed.) [UPDATE May 21, 2018:  Jeff retook the exams recently and passed.  That puts him on a list of people who will be promoted if engineer positions come open in the next two years.  Read more here.]

Jeff Graham initially filed a racial and age discrimination complaint.  Those are hard to prove.  It was the only legal grounds he was aware of for such a complaint.  He didn't know anything about the merit principles in the Charter.  The MOA claimed there was no racial discrimination, but in the trial, these other issues came out and the jury found the MOA violated its obligation of good faith and fair treatment.  

The beauty of the merit principles is that they protect everyone from discriminatory practices - whites as well as people of color, men as well as women.  They require tests to, as much as possible, discriminate solely on whether someone is likely to be successful on the job.  

My Goal

My goal in these posts is to raise awareness of the problems that this case has raised.  It got almost no media coverage and many of the issues are 'invisible' in that they are very detailed issues of policy and administration.  I hope to be able to make them visible and explain them and their significance in these posts.  

Ultimately I hope the MOA will seriously review the internal structures that increase the likelihood that employees will be treated fairly, like the merit principles in the charter require. Hiring and promoting employees based on their qualifications for the job and not their connections, generally leads to a more effective and efficient government.  So does an administration that takes complaints seriously instead of punishing the complainers.  

This is the overview.  The other posts will fill in the details.  As I post them, I'll add links to them here.  

You can see an index of all my posts about this case here - or at the Graham v. Municipality of Anchorage tab just below the "What Do I Know?" banner on top of the blog.  

Another Election, Same Problem - State Gives Lindbeck 56% When He Really Got 68%

The Alaska Democrats agreed once to the ADL ballot (Alaskan Independence, Alaska Democratic and Alaska Libertarian (A-D-L)), which means that candidates from various parties all appear on the same ballot in the Alaska primary elections.

One rational is that it's more democratic, unlike the Republican ballot where only Republicans can vote.  But a primary originally was supposed to be where the parties chose the candidates that they preferred to run in the election.  You could almost say it was like letting your opponent pick what players you were going to have on your team against them.

The issue I have in particular showed up again in Tuesday's election.  In a primary, not only are candidates trying to win, but to win decisively enough to convince funders that they convince funders that they have a good chance of winning.

Here are the results for the ADL ballot for the Democratic primary Tuesday from GEMS (it's the third race down):

Hibler, William D. DEM        2578      9.40%
Hinz, Lynette         DEM        4445    16.21%
Lindbeck, Steve     DEM     15493     56.50%
McDermott, Jim C. LIB        3533     12.88%
Watts, Jon B.           LIB        1371       5.00%

The casual observer would go, "Oh, Lindbeck did pretty good.  He got 56.5% of the vote."  But compared to Don Young's (his November opponent)  89% in the Republican primary, that looks pretty weak.

The problem, as I see it, is that the ADL combines candidates who ARE NOT running against each other, and the state election office treats their percentages as though they were.  But the DEM's are running against the DEM's and the LIB's are running against the LIB's.

So against the other Democrats, Lindbeck actually got 68% of the vote, a pretty decent tally, a landslide in many people's minds.

I wrote about this issue at length after the 2008 primary.   Here's the summary of that post:

SUMMARY OF FINDINGS:  

1. The Alaska Primary elections had ballots that combined candidates for the Democratic Party, Alaska Independent Party, and the Libertarian Party of Alaska. The Republicans had separate ballots.

1. By combining two or more parties onto one ballot, the primary is no longer a contest between the two party candidates for the nomination of their party. The percentages of vote for candidates that are not running against each other makes no sense at all.

1. The state law says "The director shall prepare and provide a primary election ballot for each political party." To me, that sounds like a separate ballot for each party.  [A document put out by the state says a blanket primary is legal.]

1. The Division of Elections Media Guide says that "In Alaska, the political parties determine which candidates will have access to their ballot and which voters are eligible to vote their ballot."

1. Both the Libertarian Party and Alaska Independent Party by-laws call for what is known as a 'blanket" ballot which lists all candidates for all offices. That makes sense since they don't have more than one candidate for any office. Between the two parties, I could only find a total of three candidates in only the US House and Senate races. They have provisions for other options if the other parties do not allow blanket ballots.

1. I couldn't find the Democratic by-laws, but their Plan of Organization says, " The Alaska Democratic Party’s primary election is open to all registered voters." That doesn't say open to all other parties. 

It all seems to hinge on whether the Democratic Party by-laws call for an open primary or a blanket primary.

You can go there to see to see the details. (And since I'm on vacation in Paris right now, I haven't reread the original post carefully, so there may be some aspects I would change.  You can point them out.

At this point, though, I think the Democrats disadvantage themselves by letting the percentage reflect more than the candidates they are running against.

"Our Representatives Are Still Helping Other Customers, Please Continue To Hold"

After waiting two hours to talk to someone who said she couldn't help me and then transferred me to another line where I've been waiting for over an hour, I started thinking that maybe the IRS needs to contract with an Indian call center.

Among the anti-tax, anti-government crowd are those business people who know that if they starve government, then there will be less enforcement of the rules and they can get away with more sketchy business and safety practices.  They'll hire lawyers who will concoct complicated legal responses that exhaust the thinning staff of the IRS and other agencies.

Meanwhile, law-abiding citizens have to wait for hours (literally) to talk to someone who might possibly be able to figure out how to get their organization to put the pieces together so that they'll stop sending me letters incorrectly saying I owe them money.

Here's the problem.

We hired a caregiver to take care of my mom when she could no longer walk and take care of herself.

We hired a national payroll firm to take care of calculating the taxes and paying them to the state and the federal governments.

So the company sent in the withheld federal taxes.

My mom's accountant sent in her income tax return, which included those withheld taxes as the payroll company said should be done. 

The IRS has not been able to connect the money they got from the payroll company to the tax return they got from the accountant. [As I learned from the guy I eventually talked to, the personal side of the IRS is separate and doesn't communicate well with the business side.]

My mother is getting letters saying that her personal returns owe X thousand dollars.
She's also getting letters saying that they have received X thousand dollars but there is no tax return.

The two parts of the IRS aren't talking to each other.

Despite the fact that

1.  The accountant has sent them letters documenting the connection between my mother's social security number and the Employer ID number and that the payments were made and the returns filed.
2.  I talked at length to an agent back in March or April and he clearly understood the issue and took extensive notes for the file.  He talked to my mom to get me power of attorney for the 2014 returns and told me what form to fill out for the 2015 return, which I did.

I sent the two new letters that were awaiting me at my mom's in LA last week to the accountant so he could respond to them.  But he also suggested I try to call them as well.  I had tried to call already, before talking to the accountant, but the recording I got then said they were too busy and to call again the next day.  It's more than the next day and the first number I called said to call later.  The next number (there's one number on the letter saying my mom owes X dollars and another number on the letter that says they have the money, but my mom needs to file a return) put me on hold for two hours before someone answered.  How many people can sit by the phone for two hours?  I at least could put it on speaker phone and do other work and my wife was around to take care of our grand daughter whom we're taking care of this week.

This agent was less than helpful or understanding.  She never even took my mom's name or social security number.  She just decided I needed to talk to the business side and said, "I'll transfer you."  Then I got told by a recording that the wait would be over 60 minutes.

[I've been writing this as this was unfolding, so I typed the next part 90 minutes later.]

But the man who eventually answered, about 90 minutes later, quickly grasped what I was saying and outlined how to fix it.  The tax deductions for the caregiver, despite what the payroll company said and despite what the accountant did, should not have been reported on my mom's personal tax return, but should have been file on a 941.  I wrote down what I understood and he said that was basically it.  He agreed it was unfortunate that it took so long for the IRS to answer the phone.  And it was too bad I couldn't have the accountant on the line too so he could answer the technical questions I didn't know and could ask things I didn't know to ask.  But he won't tie up his phone for two hours on hold.  He also agreed that the two sides of the IRS - business and personal - don't seem to talk to each other better.

So I have a tentative solution now which includes amending my mom's 2014 tax return - ugh.  
If we funded the IRS properly, it wouldn't take so long to answer the phone.  If they answered the phone, people wouldn't get so frustrated and could solve their problems before lots of penalties and interest fees pile up.  But this also make people angry at the IRS so they are amenable to the anti-government folks arguments, vote for simplistic anti-tax politicians, and make things even worse.  And the big polluters and tax dodgers get away with their shenanigans because the government doesn't have enough staff to handle their cases.  We see that with schools too - the campaigns to trash the public schools, cut their budgets.  This makes schools more crowded and parents more pissed off about schools.

On the positive side is that the man I talked to actually stayed in the office until 6pm his time on the Friday of a three day weekend to be sure he understood what I was explaining, to look up the returns and find that indeed the money was where I said, and to listen to me reread my notes.

Now I have to send my notes to the accountant who is going to say, I'm sure, we did some of the things already and that what he did was perfectly legit.   Grrrrrr.  We'll see.

[Reposted because of Feedburner issues.]

For Some, Religious Discrimination Means Not Being Able to Impose Their Religious Beliefs On Others

Kim Davis, a Democratic Kentucky County Clerk, was imprisoned for refusing to issue marriage licenses (to any couples) because she believes God's law forbids marriage of same sex couples.

From a public administrative perspective, this would seem to be pretty cut and dried - she's required to carry out the duties of her job and not let her religious beliefs interfere with those duties.  So I've been poking around the internet to find out more about her and her beliefs to figure out why she isn't doing the obvious.

For those in a hurry, here's my preliminary hypothesis:

1.  She's worked in a very closed system - her mom has been her boss for years.
2.  She found Jesus after a life with less than "Christian values' marriage record.  Her actions may be part what her new faith tells her and part a convert's attempt to prove her faith.
3.  She's represented by a radical Christian law non-profit that is probably pushing her to be a martyr and get the law group more attention. 

For an example of #3, here's what Kim Davis' attorney said: 

“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman,” Mr. Gannam said after a hearing that stretched deep into Thursday afternoon. “And she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is."

I guess I'd rephrase this.  She's not being incarcerated because of her religious beliefs.  There are lots of people who share the same religious beliefs and they haven't been incarcerated for them.  She's being incarcerated because as the county clerk, she's not performing her legal duties to issue marriage licenses and that non-performance is interfering with the legal rights of people her office is supposed to serve.


What's religious discrimination at work?
Let's be clear about religious discrimination at work.  The US Equal Employment Opportunity Commission tells us that people may not be discriminated against because of their religious beliefs.  If there is a conflict with an employee's religious beliefs and their job duties, the organization should try to make reasonable accommodations.  From the EEOC website:

"Religious Discrimination & Reasonable Accommodation. The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices."

So an employer (and this is aimed at all employers, not specifically at governments as employers where the obligation to serve the public is even greater) should attempt to find an accommodation.  In this case, she could, as the court suggested, delegate the task she finds objectionable, to someone else.  There are deputies in the office who are willing to do this.

But since Davis is the head of the office, I can see her thinking that if she lets a deputy issue a license to a same-sex couple, it would be the same as if she were condoning it.  This gets us to the next level of consideration.  Is making an accommodation an undue hardship to the office and the people it serves?  Back to the EEOC website:

"Religious Discrimination & Reasonable Accommodation & Undue Hardship. An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work."

In the Davis case, it compromises one of the duties of the clerk's office - to issue marriage licenses - and it causes major harm to some members of the public.  Apparently, Davis' way of accommodating her religious beliefs was to stop issuing marriage licenses to anyone.  She's not, in her mind, discriminating because heterosexual couple also are denied marriage licenses.  The court rejected that. 

To turn this around and say that Kim Davis is being discriminated against based on her religious beliefs is understandable only if you believe that Kim Davis has the right to impose her religious beliefs on the people of her county who  have the legal right to wed.

Here's some interesting background I found while trying to understand Davis' reasoning.

1.  Davis has been a deputy county clerk for over 24 years, working under the chief clerk, her mother.
2.  Working for a relative is legal in Kentucky.  
3.  There were some challenges to her salary which was significantly greater than the deputy sheriff and chief judge deputy.  (I didn't see how long these two had been in office compared to Davis.)
4.  She's an Apostolic Christian.
5.  When her mother stepped down, Davis ran and won.  I'd note she beat her Democratic primary opponent by 23 votes, or by less than 1/2 percent.

From The Morehead News:

"The highest staff wage in 2011 – $63,113 – was paid to Bailey’s chief deputy clerk, Kim Davis, who also happens to be her daughter.     Davis is listed at $24.91 hourly for a 40-hour work week and an annual wage of $51,812. She received an additional $11,301 in overtime and other compensation during 2011.     Her rate of pay apparently triggered most of the complaints, The Morehead News has learned from various sources.     Kentucky law permits elected county officials to employ family members and to set their levels of pay. It is a common practice throughout the state."

 She has been married four times to three different men, according to US News and World Report. Wikipedia (which has put most of these references together) describes her marriages this way:

Davis has been married four times to three different husbands. Her second and fourth husbands are the same. The first three marriages ended in divorces in 1994, 2006, and 2008. She is the mother of twins, who were born five months after her divorce from her first husband in 1994. Her third husband is the biological father of her twins, who were adopted by her fourth husband, Joe.

Look, I'm not judging her here.  Love and marriage is hard to figure out, especially when you get married at 18.  We don't know what her circumstances were.  But I suspect this past, which is not the ideal of her new faith, puts some pressure on her to show that she is now truly committed, like standing firm for her idea of God's will in this case. 


She became an Apostolic Christian in 2011.  Their website may help people understand the stand she is taking. 

Apostolic Christian beliefs are rooted in a literal interpretation of the Bible. We believe that the Bible’s teachings are applicable to all times and all cultures.

I'm not sure this is how they mean it, but the words suggest that they believe that everyone should obey the doctrine they believe.  

Their doctrine might also help us understand why a woman who has had a somewhat turbulent married life might now be standing firm with her new beliefs:

We believe salvation is obtained by grace through faith in Jesus Christ. True faith is evidenced by obedience to God's Word, which instructs a soul to do as the Lord Jesus emphatically taught, "Repent: for the kingdom of heaven is at hand."¹ The biblical pattern of repentance is observed, which includes godly sorrow² for a past sinful life, confession of sins, restitution for past wrongs, and becoming dead to sin. The wonderful and matchless grace of God is given to those who are humble in heart, along with peace and forgiveness from God.
Following conversion, which is manifested by a new walk of life in Christ, the convert gives a testimony of his or her faith and conversion experience to the congregation. This is followed by water baptism by immersion.³ Baptism symbolizes the burial of the old sinful nature into the death of Christ, and the subsequent rising of a soul out of the baptismal waters as a new creature in Christ Jesus. This is followed by the laying on of hands, whereby a church elder prays over the new member. This prayer acknowledges and entreats the presence of the Holy Spirit in the believer's heart, and consecrates the new child of God into a life of service for him. The new member is thus formally united with the church, which is Christ's body.
Self-denial, separation from sin and unfruitful works, and nonconformity to worldliness are integral parts of the Christian walk of life and they lead to a life of peace and joy." [emphasis added]

 So as a convert to a religion that frowns on her former lifestyle, she could feel strongly compelled to stand firmly by the new teachings of the church.  We'll see whether this ultimately leads to peace and joy. 

The proper action for a government official whose religious beliefs are in conflict with his official duties is to either find an accommodation or resign from the position.  An accommodation was offered - allow others in the office to issue the licenses - and rejected by Davis.  Her key option now is to resign and find a job that is consistent with her religious values.

Another contributing factor may be the legal non-profit - Liberty Counsel - supporting her.  Other clerks in her situation apparently have found resolutions without resorting to lawsuits.    Raw Story reports that another right wing Christian legal non-profit that fights against same-sex marriage, Alliance Defending Freedom (ADF), has found solutions for their clients.

"Jim Campbell, an ADF lawyer, said his group has not consulted with Liberty Counsel on the Kentucky case and is not representing any county clerk in related litigation. Campbell said he worked with a few employees of county clerk offices outside Kentucky seeking to avoid issuing licenses to same-sex couples based on religion and said those situations were resolved within those offices and had not escalated to a lawsuits."

The RawStory article includes a comparison between the ADF and the Liberty Counsel:

Among those who support gay marriage, Liberty Counsel has a reputation for being more extreme than ADF.
“Liberty Counsel is among the most irresponsible of ‘Religious Right’ organizations,” said Greg Lipper, an attorney at Americans United for Separation of Church and State. “ADF at least tries to fit its legal arguments within existing law; Liberty Counsel openly flouts it.”

 It's hard for anyone to know what is in the heads of people like Liberty Counsel executive director Matthew Staver, a former law professor at the Jerry Falwell founded Liberty University.  To a certain extent, he probably believes his cause is right and just.  But possibly there's also a need to get attention.  Is Kim Davis a perfect client to make this losing case with?  Or is she an imperfect client who finds herself in way over her head?  Her life has been difficult already.  This may not be the best option for her future well being.  Right now she's in jail and Staver isn't.

And so called liberal organizations have also looked for good situations to make their legal and political points.  But this seems such a totally lost cause, so out of step with the law.  

Note To Carly Fiorina: Solving Nation's Problems Harder Than Rocket Science

From Friday's news:

"For GOP presidential hopeful Carly Fiorina, solving the nation’s biggest challenges is pretty simple — “it’s not rocket science,” as she likes to say."

I watched Neil Armstrong land on the moon in an elementary school classroom in Thailand.  It's one of the moments that moved me to the field of public administration.  I thought to myself, having lived in Thailand for two years by then and with the Vietnam war close enough that I could get the Armed Forces Network out of Saigon on my radio at night, "If humans can land on the moon, why can't we find ways to feed, house, and school  all the people in the world, and provide them basic health care?" 

As I pondered what I would do after Peace Corps, I came across public administration.  It seemed to be a field of study that might address that question - it was a generalist field that borrowed knowledge from other disciplines and applied that knowledge to real human situations.

Public administration seemed broad enough to let me pursue answers to other questions that Thailand raised. Things like: is there a way to combine the best  of the communal aspects of Thai society with the best of the individualistic parts of the US society?

And I was also curious about why the US free press that I grew up believing in was NOT reporting about the US planes that were flying over my house on their way to bomb Laos and North Vietnam.  If I knew it was happening, then the many journalists in Thailand and Vietnam surely knew.  The Laotians knew, the North Vietnamese knew, and no doubt the Chinese and Russians knew.  But officially it wasn't happening and the American public was not reading about the bombing in their newspapers or seeing it on the nightly news.   Why not?

I began to realize that getting people to the moon was relatively easy.  The rocket science part - doing the calculations and building the machines - was basically modeling and crunching numbers.  The hard part was getting people to do things, getting Congress to agree on funding and then coordinating folks scattered across the nation. 

Getting people to agree on systems that equitably distribute resources among the peoples of the world is far more difficult.  The political, social, economic, and cultural webs of humans are hard to weave but easy to rip apart. 

So, from my perspective, if Fiorina thinks handling government problems isn't rocket science, she's right.  But if she thinks, as this quote suggests, that it is easier than rocket science, she's dead wrong.  It's way harder.

In physics, the laws of nature  are stable.  What happened ten years ago will happen again tomorrow.  You can calculate the speed and direction of a rocket and of the moon so that you can land the one on the other.

In the social sciences, there are some observable principles, but the people we study in social science don't obey those laws as scrupulously as the moon obeys Newton's laws. 


It's often difficult to test theories because you can't find two comparable cities (or states or nations)  to use in experiments.  But if we could, another problem arises.  People are sentient and willful.  When they know what scientists think they will do, they can change their behavior - for their own good, like cutting down smoking, or to prove their independence, like not cutting down smoking.  

If government were as easy as Fiorina seems to think, millions of people wouldn't be in prison, wouldn't be homeless, wouldn't be addicted to drugs and alcohol, wouldn't be killing each other in our cities and in war zones.  We would have adjusted our carbon use years ago and avoided the impacts of climate change we are experiencing already.  Members of Congress (and leaders in other nations) would be heroes because they would have supported projects that resulted in prosperity, equity, and the successful pursuit of happiness for all people.


Note:  I'd like to say I went into public administration because getting to the moon was the easy task and because figuring out how to get human beings to collectively solve collective problems was the much harder challenge.  While that is partially true, it's also true that I don't really have much of an aptitude for physics (though both my kids have physics degrees) and I have much more of an aptitude for public administration. 

Dave Schade And The Decision Over Coal, Salmon, and the Middle Fork Tributary To The Chuinta River

Organizing a post is often a problem.   For example, I went to a reception at UAA for grad students in the College of Business and Public Policy (CBPP) yesterday and now I'm asking myself:

1.   Should this be one post (about the UAA reception)?
2.   Or several posts about the different aspects I found interesting?

The problems are exacerbated by how long it takes to upload to Youtube (a movie over a minute or two takes a while on my slow upload connection.)  This is all a preface to what's below. [As I'm about to post this, several hours after I began it, I realize this will only focus on one of the people I met yesterday and the hearing he will conduct tomorrow over conflicting mining and salmon claims in the Middle Fork tributary of the Chuitna River.]

The College of Business and Public Policy has a several masters degrees - public administration (MPA), business administration (MBA), and one in global supply chain management (MS) - and the reception was for new students to be able to meet other students, alumni, faculty, and staff.  I was invited as a faculty emeritus and now sometimes adjunct faculty member.  Lots of things caught my eye and ear, but one in particular, is very timely, so let me start [and finish] with that. 

Alaska Public Radio had a piece on the Chuitna dispute between salmon and coal back in June.  Basically, as I understand this, it's about whether Pacific Rim Coal's mine in the area will negatively impact the fish in the river and if so, whose legal claim to the water and resources is stronger.  Read the article linked above to see about the conflict between traditional and reserved water rights.  There are also a few comments by Dave Schade (pronounced Shady), Chief of Water Resources for the Department of Natural Resources (DNR).  I only found that piece while writing this post.  But I did read Schade's name in the August 7, 2015 ADN article.

Dave's name jumped out at me because he was one of my students in the MPA program back in the early 1990s.  I hadn't seen him since then.  And it didn't occur to me that he'd be attending the grad student reception.  He was there at the invitation of his niece Kaitlin who is a student in the MPA program now.

I remember Dave as a strong and independent student.  By independent I mean he wasn't wedded to any particular ideology.  He was born and raised in Alaska and has a firm sense of himself.  As a student I recall he listened and read and thought and came to his own conclusion.  All he would say to folks last night about Friday's public hearing at the Federal Building Annex was that he's got criteria spelled out in the law and it's his job to try to match the facts to the criteria (see bottom of the post) and then make a decision, by the court mandated deadline of October 6.   Pretty much the kind of thing taught in the MPA program - that such decisions have to be based on the 'rule of law' -  meaning that decisions are based on the appropriate law, regulation, or professional standards that most closely govern the situation.  Not by personal preference or arbitrary whim.   I haven't followed the Chuitna River issue in detail, but there does seem to be a bit of room for interpretation, and even there Schade will, I'm sure, explain why he leans one way rather than another.

OK, as I'm writing this, it's clear that there's enough here to make this a post all by itself.  I've got the agenda for tomorrow's (Friday August 21, 2015) meeting from Alaska Business Monthly.

The current hearing agenda is as follows:
8:45 a.m. – 8:50 a.m.             Introduction of Hearing Officer and Panel
                                               Instructions regarding hearing process
8:55 a.m. – 10:25 a.m.            Chuitna Citizens Coalition Inc.
                                                Trustees for Alaska
10:35 a.m. – 11:35 a.m.          Pac Rim Coal LLP
12:25 p.m. – 12:55 p.m.         Cook Inlet Keeper
1:00 p.m. – 1:30 p.m.             Alaska Center for the Environment
1:35 p.m. – 2:05 p.m.             Alaska Mental Health Trust Authority
2:10 p.m. – 2:25 p.m.             Alaska Conservation Trust
2:30 p.m. – 2:45 p.m.             Alaska Miners Association
2:50 p.m. – 3:05 p.m.             Alaska Oil and Gas Association
3:10 p.m. – 3:25 p.m.             Council of Alaska Producers
3:30 p.m. – 3:45 p.m.             Howard Grey
3:50 p.m. – 4:05 p.m.              Resource Development Council
4:10 p.m. – 4:25 p.m.             Chuitna Citizen’s Coalition Inc. – Applicant’s final comments
4:25 p.m. – 4:30 p.m.             Hearing Officer’s Closing Comments

It will be held in the Anchorage Federal Building Annex (222 W. 8th) conference room.  

I tried to find the agenda on the Department of Natural Resources website to be sure it was accurate, but couldn't, so I called their information office, and they couldn't find it and asked if I wanted to talk to Dave Schade.  I smiled to myself and said, 'Sure."  Dave said the agenda was sent out to all the parties involved but not posted online.

Schade:  I'm hoping that we'll get some new information from the testimony.
Steve:  Are there any information holes you're specifically hoping to fill?
Schade:  Now you're asking for specific comments.
Steve:  No, not asking what the holes are, but just if there are any.  

So he offered to send me a copy of the letters he sent out to the parties.

First is the most recent letter which has the agenda (with breaks included) and goes down into administrative details about equipment presenters might need. 

Middle Creek Hearing Letter And Agenda - August 21, 2015

The June 23, 2015 letter narrows the scope of the testimony to objections that have already been made to
1.  to some part of the DNR analyses, and
2.  to granting the reservations

It also addresses the issue I raised above - about information holes DNR might want to fill.  Specifically it identifies questions DNR might ask:

• how particular objections relate specifically to each application under consideration
• what back up information supports particular objections
• what is the basis for any legal or constitutional argument being made
• what timelines or processes an objector might suggest as an alternative to a timeline or process objected to
• how DNR should consider particular objections in relation to the criteria set out in AS 46.15.080 (see bottom of the post)

Alaska Middle Creek Reservation of Water Objection Hearing Notice by Steve

I have to say that from what I can see in these letters, that Schade has spelled out the process in detail for participants and given a sense of the kind of questions they might be expected to respond to. 

They've had this information since June, giving them sufficient time to prepare.  And the things he's asking are what any MPA student is taught to ask for - supporting information for claims, alternatives to things they object to, and the legal basis for their claims.  I remember a student once in class, after I'd asked a question, got an answer, then followed the answer up with "Why?", saying, "I knew you were going to ask that." That 'why?' should be automatic to people doing this kind of work.   Dave needs all the supporting information he can get to be able to make his decision on this.

Since he mentions the specific criteria he's requred to use, I thought I should look them up and post them here. 

AS 46.15.080. Criteria For Issuance of Permit.

(a) The commissioner shall issue a permit if the commissioner finds that

(1) rights of a prior appropriator will not be unduly affected;

(2) the proposed means of diversion or construction are adequate;

(3) the proposed use of water is beneficial; and

(4) the proposed appropriation is in the public interest.

(b) In determining the public interest, the commissioner shall consider

(1) the benefit to the applicant resulting from the proposed appropriation;

(2) the effect of the economic activity resulting from the proposed appropriation;

(3) the effect on fish and game resources and on public recreational opportunities;

(4) the effect on public health;

(5) the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation;

(6) harm to other persons resulting from the proposed appropriation;

(7) the intent and ability of the applicant to complete the appropriation; and

(8) the effect upon access to navigable or public water.

 You can see there's a bit of room for interpretation - words like 'adequate' and 'beneficial.' 'Public interest' at least is spelled out.  A good public administrator will wrestle hard with the law and the facts trying to come up with the most defensible decision possible.  There are some close calls where both sides have strong claims and where two different hearing officers could come up with different, but justified, conclusions.  And then there are decisions where the answer if fairly clear cut. 

You can get more background information from Pacific Rim Coal , the coal mine developers, and from Inlet Keepers, a keep opponent of the mine.

You can also go to the hearing tomorrow.  Testimony is limited to those parties who have already been involved, but the public may attend and listen.

And one final comment.  The  Water Resource Section of the Division of Mining, Land & Water, of the Alaska Department of Natural Resources, is just one of the government agencies that have some sort of jurisdiction over this project. 

"A scene out of Dante" - Washington Post Ebola Must Read Story

Ebola news comes in bits and pieces and until it got to Dallas seemed far away.  The Washington Post has a good overview of what has happened and is happening.  This is a major issue of concern to everyone.  This is a good way to get up to speed. 

Out of control: How the world’s health organizations failed to stop the Ebola disaster 

The LA Times also has a long story, but I think the Washington Post did a better job. [Note:  These stories, like all stories, need to be taken with a grain of salt, but for now, they both try to pull together what's been going on and who the key players are.  We can judge how good these reports were in a year or two, maybe.]

Image from Dore's illustrations of Dante's Inferno from Sexual Fables*

While people tend to think of this as a health story, I think of it as an international public administration story.  It involves, directly, the governments of Sierra Leone, Liberia, Guinea, Nigeria, the United States, and other countries around Africa and the world.  It involves the United Nations, the World Health Organization, Doctors Without Borders, Samaritans' Purse, the Centers for Disease Control, the US military.

It involves religion and science. Courage and fear.

It involves cultural beliefs about how to bury the dead.  The lack of trust in the aftermath of civil war and the arms trade.  The lack of infrastructure - roads, health care systems, sanitation systems, water systems.  It involves human emotions.

And most important, it involves human beings facing death from an invisible killer.

It requires people to have the understanding of all these complicated factors and the power to implement action that will curb this disease with the least loss of life, using the fewest possible resources, so that other problems can also be addressed.  

Trying to understand how we could send men to the moon, but couldn't keep people on earth healthy was a key reason I got into the field of public administration.  I learned there are no set answers, but a lot of processes and information, that allow us to adapt to the changing challenges public administrators face daily. 


*I have a copy of The Inferno with Dore's illustrations, but it's at home in Anchorage and I'm in LA, so I have to borrow this picture, at least for now.    

Dante's Inferno, widely hailed as one of the great classics of Western literature, details Dante's journey through the nine circles of Hell. The voyage begins during Easter week in the year 1300, the descent through Hell starting on Good Friday