Category Archives: Race Discrimination

Where is the race debate in these civil rights issues?

In light of the Martin Luther King, Jr, holiday, the issue of race discrimination, which has not been discussed to this point in any detail, is being addressed here.  In the Welcome page, the primary mission of this site was outlined – access to fair courts.  While our early efforts, as specifically stated in the Welcome, have been structured around the case against Don Bailey, and contextual articles related to that effort, we also pointed out that the issue of race discrimination remains a pressing issue in the 21st Century.  Nothing has specifically been addressed to the race issue to this point, however, because 1)  the issue of race (except as to the clients Don Bailey has represented and continues to represent) has not been directly implicated in the proceedings, and 2) the issue of race reflects much broader social and cultural issues that will take significant effort to present in the proper context.  With Martin Luther King day upon us, however, we feel it is appropriate to direct some introductory comments to this most important topic, and one that will remain a focus of our efforts.  Incidentally, Don Bailey was in the U.S. Congress, and voted for Martin Luther King day being a national holiday.

Most people when they first read or heard of this site saw the term “civil rights law”, and, based on the impressions had before being exposed to this site, likely viewed “civil rights” as “race discrimination” or other such issues of racial, gender, and ethnic “equality” – that is really the only popular exposure to and portrayal of civil rights issues in America.  “Civil rights law”, however, is much broader than that.  Civil rights law does, indeed, include “race discrimination”, and there are many laws – voting, employment,  contracting, housing, etc., – that provide various protections against such discrimination, which also generally includes gender, ethnicity, and national origin as well.  More broadly, however, “civil rights law” includes all of those “fundamental rights” that our founding fathers, and those philosophers upon whom their plans were based, Locke, Rousseau, Hume, etc., have identified as intrinsic to the human condition.  Whistleblower litigation, for example, is a civil rights issue, because its basis is the First Amendment.  Steve Conlkin’s right to a hearing, Andrew Kundratic’s right to fair access to the courts, and Don Bailey’s vindictive prosecution, are all also civil rights issues.  These are all species of “civil rights litigation.”

The race discrimination laws, and all of the other civil rights laws, have their basis in the Fourteenth Amendment of the United States Constitution, specifically its’ Equal Protection Clause.  The pertinent sections of the Fourteenth Amendment are set forth as follows:

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

***

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fourteenth Amendment, as most probably know, was a post-civil war era amendment, enacted June 13, 1866, and, frankly, was part of the inevitable compromise that was made necessary by the formation of our Republic around the institution of slavery.  To be sure, the “states-rightsers” ceded considerable influence and power to the federal government through the “reconstruction-era amendments” (Thirteenth, Fourteenth, and Fifteenth), but, again, it was the cost of a “more perfect [and peaceful] union”.  There will be much more on these matters in future articles, but for now, we address the issue in relation to the courts we have been discussing.

As Section 5 clearly states, civil rights laws in the area of “equal protection” are the exclusive province of Congress; yet, while there is never a shortage of discourse in the media and other public fora, and those debates often center around the continuing wisdom of some of these laws as they were written, or have been applied over time, there rarely, if ever, appears to be a Congressional legislative agenda directed at such appropriate reform.  It is the view of some participants in the Network that some reforms, even fundamental reforms, may be desirable to adjust the civil rights laws given the passage of time and cultural maturity, and suggestions and proposals will be made at an appropriate time.

Much of the public debate, depending on the medium in which it is had, suggests that there is some proclivity or propensity of the courts to treat these cases favorably, i.e., and that playing the “race card” so-to-speak results in windfalls to people getting over on the system.  A January 11, 2012 Wall Street column by Holman Jenkins reinforced this perception strongly.  It is the opinion of the civil rights practitioners and others connected with this site, however, that such generalizations are misplaced.  Our mission being initially related to the experience of Pennsylvanians, and particularly, the federal courts in central Pennsylvania, and our experience simply does not accord with that of Mr. Jenkins, though Jenkins was addressing “disparate impact” discrimination (race-neutral practices with broad inequitable race-based impact), and much of the litigation that will be discussed in this site is “disparate treatment” discrimination (treating similarly-situated persons unequally with race being the criteria for the treatment).  Disparate impact litigation is often handled on the government level, while disparate treatment cases are handled through private litigation.

The experience in the federal courts in central Pennsylvania, however, suggests that the judges are deciding these types of cases on the basis of their political and cultural views, and those of the power systems that support them, rather than the merits of each individual case that comes before them, and, unfortunately, the “Don Bailey factor” has played too big a role as well.  We suggest that this is a function of the crony capitalism/courthouse corruption dynamic discussed in our December 31, 2011 article, and that it has generated an extremely activist bench on the federal courts.

For example, regardless of your views on the wisdom of affirmative action, Pennsylvania did have an affirmative action/contract compliance program for minority businesses participating in the state-contracting process.  Pennsylvania had that program until 1996.  Pennsylvania no longer has that program in any form, and there was never a hint of public debate about the issue.

Andy Ostrowski had in the past represented a number of minority businesses, and state employees in the Minority and Women’s Business Enterprise Office of the Department of General Services, and had varying levels of success.  In one of those cases, Ostrowski uncovered the almost literal shell-game which led to the elimination of all affirmative action/contract compliance issues by Governor Tom Ridge through an orchestrated effort of adopting and repealing various Executive Orders and Pennsylvania Management Directives (state practice and procedure manuals essentially) whereby the entire affirmative action program was abolished, with the creative and surreptitious strokes of the gubernatorial pen, and was replaced by what is nothing more than an index to the rest of the issuances – the progression was set forth by Ostrowski as follows:

*        On December 20, 1996, Governor Ridge signed Executive Order 1996-8 which rescinded Executive Order 1987-18 (Minority and Women Business Enterprise).

*        On December 20, 1996, Governor Ridge signed Executive Order 1996-9 which rescinded Executive Order 1988-1 (Affirmative Action and Contract Compliance).

*        As of December 20, 1996 the Bureau of Affirmative Action/Contract Compliance in the Office of Administration was responsible for the overall administration of the Commonwealth Contract Compliance Program in accordance with Governor’s Office procedural issuance M215.2 dated December 28, 1994 and signed by the Secretary of Administration.

*        On April 8, 1997 M215.2 (Commonwealth Contract Compliance Program Guidelines) was rescinded by procedural issuance M210.3 (Index of Issuances – Directives Management System).

*        There is currently no bureau, office, division, or other organizational unit within the Governor’s Office of Administration designated, titled, and/or referred to as the “Bureau of Affirmative Action/Contract Compliance”.

*        There has never been a bureau, office, division, or other organizational unit within the Department of General Services designated, titled, and/or referred to as the “Bureau of Affirmative Action/Contract Compliance” or the “Contract Compliance Division”.

*        The plan for the abolition of the MWBEO, the creation of the BCABD, and the transfer of contract compliance functions from the Office of Administration to the Department of General Services was never submitted to the General Assembly in accordance with the Reorganization Act of 1955, 71 P.S. s 750-1 et. seq..

In a later case where Ostrowski was representing a minority contractor in a statewide computer contract, which the minority contractor should have won and would have won on merit-alone – he was offering a superior service at a more affordable cost, he sued, among others, then-governor Tom Ridge, and his Chief Counsel Jim Sheehan (former Rambo law clerk), who was believed to have orchestrated the effort.  Rather than answering the Complaint and addressing the issue on the merits, however, the Attorney General’s office who was representing the interests of the Commonwealth (Mike fisher was attorney general then and is a Third Circuit Judge now as set forth in our Bailey “shit storm” article) concocted a plan to effectuate the removal of Ostrowski from the case, based upon some alleged conflict that Ostrowski had because he had represented another contractor victimized in connection with a different aspect of the same contract.  Judge Kane, who had just recently ascended to the federal bench out of her position as Secretary of the Commonwealth under Ridge, granted the motion and dismissed Ostrowski from the case, and the issue died, state-wide, right then and there.  This is extreme judicial activism fostered by pure cronyism, and the entire citizenry of the Commonwealth of Pennsylvania, not just the minority business community, was left in the dark, and continues to be so a decade later.  Research does not disclose a single public comment, or media report on the abolition of affirmative action in Pennsylvania, yet it no longer exists.

Again, leave aside any and all preconceptions of the wisdom or desirability of affirmative action programs, and, indeed, for purposes of this article, you can even assume that they re no longer desirable.  This type of ends-justifying-the-means-cronyism is nothing short of corrupt and dishonest governance which works to the detriment of the entire society, and, over time, as has happened as reported throughout this site, to broad views of unfairness that has led to the underlying difficult to define unease that spurred such things as the occupy movement, again as set forth in our crony capitalism/courthouse corruption article.  It is the courts who are at the heart of it, and they are not proving capable of disciplining themselves, and, until they do, this will just be business as usual.

Martin Luther King, Jr., is honored for his commitment to the cause of equality in the face of all odds, and his belief that there are unifying principles of our humanity that supersede things like the color of our skin and other such physical characteristics, and he recognized the power of the people through peaceful protest and non-violent civil disobedience to effect change, and he did effect change.  In many ways, the civil rights movement died when MLK was killed, and Johnson did not seek re-election, and the Vietnam war came to occupy the public consciousness until the gas lines and oil embargos of the 70s supplanted that, and things progressed to where we are today, with nary a Congressional hearing or substantive public debate on the reform of our civil rights laws – whether more protections or less protections or new protections or no protections is the objective.  The point is that these are not policies that should be directed by our courts – nobody elects federal judges to make policy, that is what our executives and legislators are for, and this debate needs to be had by the latter, and not forced upon us unknowingly and unwittingly by the former.

The dynamics of the struggle may have changed, but the civil rights struggles continue – a struggle between the liberty of the individual and the power of the government.  Consider this website as a peaceful protest, consider Don’s clients filing their own motions to open as peaceful protest, and the efforts to save Steve Conklin and Satori Farm are peaceful protest that will may well include civil disobedience.  Whatever the cause at stake and whatever the form the protest takes, the Martin Luther King., Jr. national holiday celebrates all of it as an integral part of our national tradition – the power of the people in the political process.  It is unacceptable that Don’s clients are getting abused, even when they file their own motions, and it is unacceptable that our courts, the last stand of justice for all, are the ones actually behind the efforts to get Don Bailey.  We will be on the courthouse steps of the York County Courthouse (a symbol of the abuse of civil rights across all spectra) tomorrow morning at 10 o’clock a.m. to stand up for these principles.  We hope you can join us.

Thank you.

2012 Year of the Whistleblower Petition – PCRLN to propose protection in light of Supreme Court encroachments

2012 the Year of the Whistleblower

Some of the themes on this site transcend any particular case that we have addressed, and have broader relevance in our courts, and one of them, which is a major theme of this site, is whistleblower protection.  First Amendment litigation in public employment is the most basic type of whistleblower litigation, and there are some laws, none of which have been effectively enforced, that ostensibly provide additional protections.  Public employees often hold the keys to exposing public corruption, because they work behind the veil, and much of the fight that Don Bailey and many of his clients have been fighting has been centered around representing long-time, well-respected, high-level public employees, police officers, etc, who have exposed misconduct and malfeasance at the highest levels of state government repeatedly.  It has covered democrat and republican officials and administrations, and has persisted at the highest levels.  It is the heart of the Bailey “shit storm”, and is a major focus of the efforts we wish to take politically. The Tom Kimmett/Corbett corruption case is a classic example of whistleblower litigation, and the entirety of the Don Bailey disciplinary case is quintessentially whistleblowing, though with complicating dynamics.

In that regard, one of our participants has provided us with an external link to an effort by another organization, change.org, who is submitting what appears to be a very general Petition for Whistleblower protection to the President and members of Congress, for action and attention to the need for greater and more effective whistleblower protection.  No issue should be more deserving of broad, a-partisan, political support, than something that not only serves to streamline government, but promotes integrity as well.  It serves every liberal and conservative ideal, and may be the best first defense against crony capitalism, which typically relies upon a beholden bureaucracy to survive.  The message to which you are asked to ascribe is simply stated as follows:

Greetings,

I just signed the following petition addressed to: House, Senate, and the President.
For years federal government whistleblowers have not been protected after they expose waste, fraud, and abuse of power. Our new year’s resolution is a chance to speak up for truth and honesty in government programs. It is high time that we demand real protection and jury trials for fired whistleblowers. The laws that have been passed do not have regulations with teeth. Visit www.whistleblowing.us to see the International Whistleblower Archive where one can review the sad history of protection of whistleblowers. We need your support to archive the struggle and to continue the fight for whistleblower rights.

Everything about the site and the message appears consistent with everything we have discussed as the core of our efforts here, and we will provide a permanent link in our resources.  The contribution is appreciated.

Efforts to stop First Amendment encroachments

The efforts of PCRLN will focus specifically on the systemic problems that have led to the lax whistleblower protection environment.  The full scope of the implications of these matters will be developed over time, and will suggest the relationship of the cases coming out of Don Bailey’s office to these trends.  For now, we introduce you to three United States Supreme Court decisions, all involving issues frequently litigated by Bailey in his cases, that have severely limited the rights of employees in First Amendment cases.  The cases are Garcetti v. Ceballos, 547 U.S. 410 (2006) , Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), and Guarnieri v. Borough of Durryea, 564 U.S. __ (2011), and they have severely limited employee protections in the areas of 1) reporting misconduct, 2) being targeted as a whistleblower, and 3) having whistleblower protection for employee grievances.

For now these cases are only being introduced generally, and are linked for your convenience.  The more complete analysis will come in future posts.  Suffice it to say that each of those cases has circumscribed entire classes of cases in which whistleblower protection has traditionally been available in our courts, and clearly reflect an activist agenda.  Former Third Circuit Judge, and now Supreme court Justice Samuel Alito was on the Third Circuit at the time of the McGlaughlin case, which was at the center of the Bailey “shit storm”, and while many other Bailey First Amendment cases wend their way through that Court, and he has been on the Supreme Court and voted in favor of each of the three decisions.  The January 7, 2012 New York Times includes an article critical of the Supreme Court’s First Amendment record, and the issues could not be more timely – 2012 does seem ripe to be the year of the whistleblower.

The last significant reform to the civil rights laws by the United States Congress were the Civil Rights Amendments of 1991, which made changes to Title VII of the Civil Right Act of 1964, among other things.  Those amendments were made in response to Supreme Court decisions that had curtailed protections in workplace discrimination cases.  The Garcetti troika suggests a need for congressional action, legislation along the lines of the discrimination laws, to provide a fair and efficient scheme to protect the balance needed between workplace efficiency and the need for worker whistleblower protection.  Courts should not set civil rights agendas, and this Supreme Court clearly has an agenda in the area of exposing government corruption.  It is time for Congress to act, and we will continue to try to fashion an appropriate approach to the problem.

Thank you.