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Welcome to The Asylum. Just as before, Josh is always right.

Friday, May 15, 2015

The Bloom Is Off of Rose

I have to wonder why the packet for Monday night's city council meeting wasn't posted on the city web site until Thursday evening when the city policy, by council request (and possibly resolution, though I can't confirm that at the moment), is to post it on Wednesday.

I have to wonder if it has something to do with the fact that this week's council packet includes a renewal of super-drunk BPU director Rick Rose's contract.

I have to wonder if it has anything to do with the fact that the good ol' boys are monitoring both this blog and Hillsdale's Hot Debates and took notice of the fact that I normally publish on Wednesdays.

Hey there, fellas!  Here's a little clue for you about how the Internet works: I'm not a print outlet, so I can publish at any time that I want.  I don't have to stick to my deadline.  I can publish early.  I can publish late.  I can show up to the city council meeting on Monday night and live blog the whole thing like Aimee England used to do.  Wednesdays are just the self-imposed deadline that I use to motivate myself.  But sometimes I feel moved to write more often than on a weekly basis.  Much like today, as this post demonstrates.

Now, sure, I have no doubt I'm about to hear from at least five or six people that this is all in my head, that there are perfectly rational reasons for why the packet wasn't posted at the proper time, that it has nothing to do with me, and that I really need to get over myself.


Nope.  Sorry.  Don't buy it.

Don't think for a second that I don't know what's going on here.  I know scared tyrants when I see them, and I'm looking at a few in our city government right now.

Interestingly (but not surprisingly) enough, it's not only the delay of the packet's release that begs questions.  Thanks to my crack team of researchers -- not to be confused with a team of crack researchers, which would serve an entirely different purpose -- we've come across some rather telling pieces of text in that BPU Director's contract which give us all kinds of material for Monday night's public comment sessions.  We're going to work through a lot of legalese here, but stick with me, because this is important.

  1. From the Preamble (packet pg. 121): "Hillsdale's current Board of Public Utilities (BPU) has found and determined Rickie J. Rose (Rose) of Hillsdale, Michigan, Hillsdale's Director of Public Utilities (referred to in the Hillsdale City Charter as Superintendent) to be highly competent, eminently qualified, with the skills, education, character and job experience to efficiently and expertly operate and oversee Hillsdale's electric, water and sanitary sewer facilities and services.

Let's forget the fact that Rickie (and I just love calling him that, don't you?) has been known to shout down his employers at city council meetings in the past.  Let's instead focus on the fact that, just last month, he spent 24 days in the Hillsdale County Jail for driving into a tree with a blood alcohol content of .23, which is just shy of three times the legal limit and considered "super drunk" under Michigan law.  Let's also recall that Judge Sara Lisznyai, in her sentencing of Rickie, said directly to him, and I quote, "You do have a drinking problem."  Let's keep in mind that, in crafting the sentence, Judge Lisznyai took into consideration the fact that Rickie had three prior run-ins (if you'll pardon the expression) with the law: a DWI in 2003, reckless driving in 2005, and disorderly conduct in 2014.

With all of these things taken into consideration, is this really the kind of "character" that the BPU board considers suitable for a man who runs a power and waterworks company?

A man who oversees the electrical distribution for the entire city of Hillsdale and several surrounding townships and villages?

A man who oversees the operation of highly powerful and potentially deadly machinery?

A man in charge of making safety-related judgment calls on a daily basis?

This is the kind of man you choose to entrust the lives of your employees to?

In the private sector, Rickie here would have already been fired, and any talk of negotiating a new contract with him would have been laughed right out of the boardroom.  But this is all perfectly acceptable to the good ol' boys in Hillsdale's city government.

  1. Also from the Preamble (packet pgs. 121 & 122): "Rose is desirous of continuing in the position of Hillsdale's Director of Public Utilities on the terms and conditions hereinafter provided.  Rose represents himself to Hillsdale and its BPU as having, possessing, and fully utilizing the necessary skills, education, character and job experience necessary to assume, continue and faithfully discharge the duties of the Director of Public Utilities for Hillsdale in a professional and competent manner for Hillsdale's and its BPU's benefit and for the benefit of the general public in Hillsdale and the greater Hillsdale area., all as demonstrated by and through his past service to Hillsdale and its BPU."

Oh, well then!  I suppose that just erases all that's gone on in the past couple of months!  He promises to be good, you guys!  We should just forgive and forget!

(For those of you who are unable to detect snark, the above paragraph was drenched in it.)

Also, just because I can be a real jerk sometimes, "having" and "possessing" are the same thing in this sense.  In fact, merriam-webster.com defines the word "have" as "to hold or maintain as a possession, privilege, or entitlement."  See?  It even uses the word "possession" right in the definition.  And the definition of "possess" is "to have as an attribute, knowledge, or skill."  See?  It even uses the word "have" right in the definition.  Using both "have" and "possess" consecutively in a sentence to make what you're writing sound official is both repetitive and redundant.

(There was also some snark in that last sentence, too, as well.)

(And in that one.)

Oh, and there's a period prior to a comma after "greater Hillsdale area."  That was no typo in my transcription; it's in the actual contract that way.  You might say I'm just nitpicking to be vindictive now.  You'd be right, and I really don't care.  Like I said, I can be a real jerk sometimes.

  1. From Section 2, subparagraph A (packet pg. 123): "The Board agrees to employ Rose as Director of Public Utilities for the term of three (3) years from July 1, 2015, to and including July 30, 2018."
    And from Section 3, subparagraph A (packet pg. 124): "During the continuance of this agreement, Hillsdale's Board shall pay Rose a basic salary in such amount as it, from time to time, determines to be commensurate with Rose's skill, training and experience after survey of pay levels for like work at similar utilities in the State of Michigan, as well as those providing utility services in or near the BPU service area."

That's very interesting, because according to this Hillsdale Daily News article from August 17th, 2013, Rickie made himself a deal with the BPU board two years ago that was to freeze his salary at $85,000 per year for a period of five years with a one-time bonus of $15,000 in lieu of any future raises, and because that was merely an extension of his three-year contract from 2010, it's stated in the article that the matter didn't need to go before the Hillsdale City Council.

Now, I'm no math whiz; I'll be the first to tell you that.  But I am proficient enough with basic addition and subtraction to know that 2013 plus five is 2018.  If that 2013 extension to the 2010 contract is still in place, why is his contract coming before the city council?  Did they request this of the BPU board to give themselves an opportunity to let him go?

Good question, and it brings us to point number...

  1. From Section 2, subparagraph C (packet pg. 123): "[...] it is specifically agreed and understood between the parties that Rose's employment with Hillsdale is 'at will' and, in addition to the termination procedure provided in the preceeding subparagraph A of this section 2, may also be terminated by either party, with or without cause, for any reason not prohibited by law or for no reason at all [...]"
    And from Section 3, subparagraph A (packet pg. 124): "The compensation rate shall not be less than is in effect at the date this agreement is signed and shall be certified to Hillsdale's Treasurer and shall be paid in equal bi-weekly payments." [emphasis theirs]

Ah!  Very interesting!  But also stupid!  Just to make sure we've got this right, let's read Section 3, subparagraph A in whole, shall we?

"During the continuance of this agreement, Hillsdale's Board shall pay Rose a basic salary in such amount as it, from time to time, determines to be commensurate with Rose's skill, training and experience after survey of pay levels for like work at similar utilities in the State of Michigan, as well as those providing utility services in or near the BPU service area.  The compensation rate shall not be less than is in effect at the date this agreement is signed and shall be certified to Hillsdale's Treasurer and shall be paid in equal bi-weekly payments."

You notice how that section says absolutely nothing about what his compensation is to be?  If you hadn't read the Daily News article I linked to above, how would you know that the starting point is $85,000?  And what will that compensation be if it goes above $85,000?  The contract doesn't spell that out at all.

All of which says to me that the city council just tipped their hand.  They're going to wipe Rickie's 2010 contract with the 2013 extension right off the books and give him this contract, which could well include a pay raise.  Or additional bonuses.  Or perhaps both!

Hey, we don't have the money to pave the streets, but a belligerent employee who drives drunk, drives recklessly when he's sober, and conducts himself in a criminal, disorderly manner?  By God, give that man a raise!

Oh, and speaking of driving recklessly, be it while sober or super-drunk...

  1. From Section 3, subparagraph I, subsection i (packet pg. 127): "Rose shall, at his sole expense, own and maintain in a good and safe working order, an appropriate automobile for his personal use in the discharge of his duties as Hillsdale's Director of Public Utilities."
    And from Section 3, subparagraph I, subsection iv (packet pg. 127): "Rose shall not operate or use any motor vehicle or other motorized equipment after the consumption of alcohol or a controlled substance within the 10-hour period that immediately precedes any act within the scope of his employment or while within the scope of his employment." [emphasis theirs]
    And from Section 6 (packet pg. 129): "'Cause' as used herein shall include, by way of example, but not limitation, the consumption of alcohol or a controlled substance within the 10-hour period immediately preceding or while within the scope of his employment, acts of dishonesty, fraud, misrepresentation and acts involving moral turpitude." [emphasis theirs]

Wow!  That takes some cojones!  "Yeah, sure, we'll continue to employ you.  We trust your character.  We might even give you a raise!  But if you so much as think of going near a bottle..."

Is Rickie's license even active right now?

But beyond the obvious, there's another underlying problem plaguing subsection iv: it's wholly illegal due to the fact that it's an inconsistent application of employment requirements, which is in direct violation of the Americans with Disabilities Act.

"Wait... alcoholism is a disability?" you might well ask.  Yes, it is.  According to the government's own ADA web site, about two-thirds of the way down the page,

"While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol."

Of course, we know from the BPU board's glowing praise of Rickie that he's "eminently qualified," so even though he does, as Judge Lisznyai put it, "have a drinking problem," he's protected by the ADA.

But why does that make this requirement illegal?

Well, to answer that question, let's go to the Equal Employment Opportunity Commission, who give us not one but two paragraphs to explain that if you're going to make something an employment requirement, it has to be a requirement for all employees.

The first comes from their "Prohibited Practices" page, which states that:

"The law makes it illegal for an employer to make any employment decision because of a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment - however small."

The second comes from their page entitled "The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities."  It goes into even more specific detail about exactly this kind of situation, to wit:

"Whether rules are written or not, employers should be careful that all conduct rules are applied consistently and should not single out an employee with a disability for harsher treatment. In addition, because ad hoc rules are just that, ad hoc, an employer may have more difficulty demonstrating that they are job-related and consistent with business necessity."

And in addition to that, the Society for Human Resource Management sums it up this way:

"Enforce a policy for one employee, but not for another—and guess what? Your company will lose the court case every time. Inconsistent enforcement opens the door for the employee’s attorney to allege discrimination, Zandy said."

So in case you haven't gotten the point yet, because City Hall wants to apply this policy to one Rickie J. Rose -- and only Rickie J. Rose -- it is in violation of the ADA, the EEOC would easily win a lawsuit against the city, and guess who'd be paying for it with their tax dollars?  That's right: you and I.

That's even more money that Joe Taxpayer doesn't have, going to yet another unnecessary expense, all thanks to the city's reckless attempt to keep employing a man who has proven he is in no way, shape or form fit for the job.

That's what they were trying to hide from you.

That's why the packet wasn't released on time.

The good ol' boys are nothing more than frightened little dictators, and we're starting to put them in their place.  That's why they're trying to keep you in the dark.

Here's the packet.  And here's another copy of it just in case, for some odd reason, it happens to disappear from the city's own web site at any given time.

Inform yourself.

Take it to the meeting Monday night.

Make your voice heard in the public comment sessions.

Don't back down.

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