Local Government

A reader recently asked how to get things done or changed locally. Another excellent question. Of course, the answer changes depending on which municipality you want to access. Having been recently elected to Town Meeting in Needham, MA, I’ll give you a quick glimpse into what our local political structure looks like, and then give you some ideas of how to find out what your local government structure might be.

Needham is run by a variety of local elected officials. Generally speaking, the Board of Selectmen runs the show. Think of the Board of Selectmen like a state governor — they are the executive branch of our local government. A number of other boards have jurisdiction or control over specific areas — health, zoning (via the Planning Board), schools, housing, etc. The other boards are kind of like the governor’s cabinet and various executive agencies — they work on local legislation and regulation about their specific areas of expertise.

Needham Town Meeting is the legislative branch, just like the state legislature. Town Meeting Members are elected as well, and serve for 3-year terms. As with all legislative branches, Town Meeting votes on and passes local legislation, represented in the Town Bylaws, as well as the annual budget. (Note, Needham’s Zoning Bylaws are available separately.) Minutes from Town Meeting are publicly available, and Town Meeting is open to the public, but anyone wishing to speak at Town Meeting must be formally recognized by the Moderator to officially have the floor. The Moderator also makes a number of important appointments for Needham’s local government, including the members of the Finance Committee.

Then, of course, there’s the actual day-to-day functionality of the town, which responsibility generally falls to the Town Manager and her designees, as well as various local offices and departments. The Town Manager is appointed by the Selectmen for a three-year term. Without putting too fine a point on it, the Town Manager makes it all happen. The Town Clerk serves as the primary record keeper — an ever so important and often thankless and unnoticed job.

How do I know all of this? I know from experience and my own personal involvement, but it’s also written in the Town Charter. The Charter and the Bylaws are the Town’s primary governance documents. Think of the Charter like the state constitution and the Bylaws like the state statutes.

If you want to know who’s who and what’s what in your local government, the easiest place to look for general information is the municipal website, but if you really want the details, get into the governance documents. For example, let’s look at the Town of Hempstead, in Long Island, NY. The website indicates that Hempstead is controlled by the Town Supervisor, who serves as both CEO and CFO for the town. The website also shows six (6) Town Council members, who appear to be the legislative body. So, the Hempstead Supervisor seems to be akin to the Needham Board of Selectmen AND the Needham Town Manager, and the Hempstead Town Council seems to be akin to the Needham Town Meeting, though with 254 members, Town Meeting is vastly more robust in its representation, as New England tends to be with its local governments. If the Hempstead website organization is any indication, it seems the Supervisor and the Council collectively comprise the Town Board, but there is no useful explanation about the so-called Board because clicking on “Town Board” brings you directly to the Supervisor’s page. I also see a Town Clerk and a Tax Collector and several other local government offices and positions, who seem to be independent of the so-called Board. I don’t seen an equivalent to the Needham Charter, though I do see the Hempstead Town Code, which is potentially akin to the Needham Bylaws. (Notably, a search on the Hempstead website for “charter” gave me the town history as a search result, which is quite lengthy and rather fascinating. Hempstead started with Town Meeting too, but evolved over time.) Interestingly, I can readily find the code-dictated salaries for the Supervisor and Council members, as well as the legislative authority for apportioning the districts of the Council members, but I don’t readily see the government structure in the local codes. (Further digging suggests this may be the case because the town government structure in New York is actually dictated by something called the Town Law of the State of New York, rather than each municipality determining its own governance structure. I haven’t read it, but a quick glance at this seems to confirm my suspicion.) Nonetheless, what I’ve found in the code seems to confirm what the website indicates — the Supervisor is the executive and the Council is the legislative branch.

If you want to get something done locally, best to look into your municipal website and governance documents to figure it out. Then contact the people in charge. If you’re not sure you’re talking to the right person, ask for guidance. Once you find the right person(s), keep at it. Persist, my friends. Let’s get it done, whatever it is.

 

Words Matter, Part 1 (and The Legislative Process)

A reader recently asked: “What is a ‘statute’ and how is it different from a ‘law?’ Or is it the same thing?”

An excellent question. After all, words matter. Words matter a lot. Indeed, punctuation matters too (so says the U.S. Court of Appeals for the First Circuit). I’ll leave Oxford commas and the like for another time. For now, let’s talk about some of the words commonly used by lawyers, legislators, judges, law professors, lobbyists, government executives, and others involved in local, state, and federal governance.

Often, people use the terms “statute” and “law” interchangeably. This is not exactly accurate. All statutes are laws, but not all laws are statutes. To really explain this, I have to give a bit of information about how statutes become statutes, which of course involves some additional vocab along the way.

Legislators (Congresspeople) write bills. Bills with any sort of traction are sent to a Committee (such as Ways and Means, Appropriations, Budget, Ethics, Homeland Security, Judiciary, and a whole host of others… check out the complete list of Congressional Committees if you feel curious). If the Committee approves the bill, then the bill is sent to the floor of the chamber of Congress in which the bill was filed, either the House of Representatives or the Senate. (The term “chamber of Congress” is used interchangeably with the term “house of Congress” but I think this gets confusing because, well, one of the chambers is called the House.) If the House or the Senate votes to approve the bill, then the bill is sent to the other chamber for its approval. Usually there is some political maneuvering here, with various drafts of the bill going back and forth between the House and the Senate until each chamber can secure enough votes on the current draft to get approval from both chambers. Once both chambers approve the bill, it goes to the President. If he (perhaps she in the future) signs the bill, it becomes a statute. If POTUS vetoes the bill and does not sign it, then it goes back to Congress for a potential veto override. If each chamber secures enough (more than originally required) votes to override the POTUS veto, then the bill still passes and becomes a statute, even though POTUS vetoed it. If the House and Senate cannot secure enough votes for an override, then the bill fails. (Note, we just covered a lot of opportunities for a bill to pass or fail. It has to pass every step, or achieve a veto override, to become a statute.)

Once a bill becomes a statute, it is published as a slip law, as part of the session laws, and as part of the United States Code. Generally, when people talk about federal statutes, they are referencing the U.S. Code; the language is the same regardless of the source, but it is probably organized differently. A slip law is the specific statute itself, flying solo, and it gets its own number (in sequence, of course). If you’ve ever seen or heard of a reference to “Public Law Number [X],” that’s the slip law version of the statute. Session laws are all of the slip laws for a particular session of Congress compiled into a single source. Slip laws and session laws are published by the Office of the Federal Register.

Slip laws usually make changes to existing statutes, so they read something like this: “Cross out the seventh word in the 42nd line of statute 1234 and replace it with the following text” and “insert, after the words ‘legislating can be so complicated’ the following new section, to be numbered section 15.” The U.S. Code deals with all of those internal references and actually inserts the new legislative language into the right spots in the existing set of statutes. Think of it a bit like editing a really long Word document; the slip laws and session laws show the tracked changes, while the U.S. Code is the clean copy.

So, what was the original question? Oh yeah… what’s a statute and is it different from a law? Now we know the statute is the bill in its final form, passed into law by Congress and/or POTUS. (Note the same process applies in state government as well, except it’s a governor instead of POTUS who gets to sign or veto the bill, and it’s a state legislature instead of Congress doing all the legislating.) The statute is a law. Period.

Really, though, there are other things that qualify as laws, if laws are rules set by government that must be followed by the population at large (or rather the parties to whom the laws apply). Take regulations, for example (often called “regs” for short). Frequently, statutes direct a particular federal agency to promulgate regulations (that’s just a fancy way of saying write and publish the darn regs) to further implement the intent of the statute. I think of regulations as laws too, given the definition I provided at the beginning of this paragraph. (I’m not the only one to define the term “law” this way.) Regulations are published in the Federal Register. We’ll save the regulatory rule-making process for another post.

That seems like enough for now. For more super dry totally interesting vocab, check out the Senate glossary. It is quite comprehensive.

The Structure of the Federal Government, with a focus on the Supreme Court

Lately I’ve received a lot of requests for what is essentially “Law School 101” information. Maybe you already know some (or all!) of the information in these posts. Maybe you knew some of the information once upon a time, but have since forgotten it. Maybe the information is completely new to you. Whatever background you bring to these posts, I invite you to read on, and hopefully this body of work will help some people, in some way.

The federal government has three (3) branches: the executive branch, the legislative branch, and the judicial branch. The executive branch consists of the President of the United States (POTUS), his Cabinet, and all offices and agencies falling under the control of those Cabinet members. (Cabinet members include the Secretaries of State, Agriculture, Health and Human Services, Education, Commerce, Labor, Defense, and the Interior.) The Legislature consists of the House of Representatives and the Senate, collectively called Congress. The judicial branch is the Supreme Court of the United States (SCOTUS), the federal courts of appeals (largely based on geographic region), nearly 100 federal district courts (also based on geographic region), and a number of other courts based on substantive matters (such as bankruptcy courts). The interplay between the three branches of government is dictated by the Constitution. Lawyers, politicians, and others working in government or related fields commonly refer to this interplay using terms such as “separation of powers” and “checks and balances.”

So, how do all those people in power get there? A quick review. The President is elected every four (4) years by the Electoral College. The President appoints a Cabinet, who must be confirmed by the Senate. (Ah ha! A check on the President’s power.) Members of the Legislature are elected by the voters. Senators serve terms of six (6) years, with approximately one-third of the Senators up for election every 2 years. Representatives serve terms of two (2) years and seats in the House are up for election every even numbered year. SCOTUS justices are nominated by the President and confirmed by the Senate. Once on the bench, justices have lifetime appointments unless they resign, retire, or are removed through an impeachment process.

Ok, now the people are in power. What exactly are those powers? Here’s an overly simplified explanation. Congress makes statutes by writing bills, voting on the bills, and then sending those bills to the President for a signature making the bill into an official statute. (If the President does not sign the bill, Congress can override that Presidential veto with a certain greater number of votes.) Congress also controls the money and holds the power to declare war. The President is the head of state and the Commander in Chief of the armed forces. As Commander, POTUS can send troops into battle without an official declaration of war from Congress. As the head of state, POTUS can sign bills into law, issue certain Executive Orders, and control the Executive Branch, which executive offices and agencies create and issue regulations that interpret and give greater context to the statutes enacted by Congress. SCOTUS reviews problems with statutes, regulations, other government actions, and various private activity to determine whether anything conflicts with the Constitution, including the Bill of Rights and all subsequent Amendments. If so, the Constitution wins. SCOTUS may also review problems for a number of other reasons, but only if those reasons for review are set out in Article III of the Constitution. You see, SCOTUS is a court of what’s called limited jurisdiction – it can only review cases specifically delegated to it, and the rest are reserved for lower federal or state courts. (By the way, the same thing happens with Congress and POTUS… specific powers are granted to the federal government and the rest are relegated to the states. This is called federalism.)

To get a case before SCOTUS, first you file a petition to be heard. The justices then decide whether or not to grant that petition. Every case filed receives at least this initial review. Most cases are rejected at this point, but a few will go through to a hearing. If the case is granted a hearing, then you know you’ve got an interesting problem. The parties submit briefs to the justices explaining their arguments and points of view. In addition, some “friends of the court,” or amici curiae in Latin, might submit briefs explaining other arguments. Each “friend” brief is commonly called an “amicus” brief. SCOTUS itself decides whether or not any particular amicus brief may be filed.

SCOTUS has nine (9) justices, each appointed by POTUS and confirmed by the Senate. Since these justices cannot be removed except in very rare circumstances and receive a lifetime appointment, those appointments are extremely important in shaping American law. This is particularly true because there really isn’t any check or balance on SCOTUS decisions, except for a subsequent set of SCOTUS justices reversing a prior decision. Reversing prior decisions, however, is rare because of the importance of precedent and the concept of stare decisis.

The stark problems with the nuclear option just exercised by the GOP Senators and Gorsuch’s appointment to the bench should be apparent. Once seated, a SCOTUS justice gets one of only nine votes FOR THE REST OF HIS OR HER LIFE. Further, once that vote is cast, whatever the majority decision is, it’s very likely here to stay. Few moments in American democracy bear comparable need for separation of powers and appropriate checks and balances.

The GOP, however, just eroded that Congressional check on Presidential power to appoint a SCOTUS justice (and I haven’t even mentioned what those same GOP Senators did to Merrick Garland, the person who should be sitting on the SCOTUS bench instead of Gorsuch).

The very fabric of our democracy just ripped like the seat of someone’s pants.

Did you hear it? Do you feel the breeze?

 

 

Failures in protecting the public health

I haven’t blogged in a while… apparently it took a story like the one I saw this morning to get me started again.

According to the articles I’ve read (here, here, here and here, and there are numerous others out there), Wayne Scott Harrington operated a dental clinic in Tulsa, OK and failed to take even the most basic safety precautions to protect his patients from a host of health problems. Some of these basic safety precautions include, oh, using non-rusted equipment, sanitizing the equipment, using clean and previously unused needles and drug vials, maintaining infection-protection protocols, and regular upkeep for the sterilization machines. Basic things we’d all expect our health care professionals to do to keep themselves and us, their patients, safe. Harrington’s failure to do these things (his defense is that he left issues of cleanliness, sterilization, and drug procedures to his staff) is not just disgusting; it led to some currently unknown number of his patients contracting hepatitis B, hepatitis C, and/or HIV. Government officials are notifying some 7,000 current and former patients that they should be tested. Can you imagine getting a letter from the state health department saying that you might have HIV or hepatitis because your dentist couldn’t bother cleaning his equipment or getting new equipment when the old stuff rusted? Unreal. It’s just unreal.

Notably, all of the articles I’ve read place the blame entirely on Harrington. (I’ve purposely removed the title of “Dr.” because if the allegations are true, I don’t think he deserves that kind of respect.) They make him out to be the sole bad guy. The reports also indicate that he’s been in practice for 36 years, and state investigative officials have no idea how long these unsanitary, unsafe practices have been happening. Now, I’m surely not defending this kind of behavior, but the articles seem to be missing something. How is it possible that the state or local government entities didn’t pick up on it until now? The Oklahoma Board of Dentistry is charged with investigating and punishing dentists in the state who are “a menace to the public health by reasons of practicing dentistry in an unsafe or unsanitary manner or place.” Okla. Stat. tit. 59, s. 328.32(13). (By the way, the Board is comprised of 11 people, only two of whom are women, and neither of the women are dentists. But that is a separate discussion.) Presumably, the Board issued Harrington a license to practice dentistry and continued to reissue him the same license every year, either with no inspection about the cleanliness of his practice or with reckless disregard of the unsanitary conditions. Apparently, the only reason that any inspection occurred is because a patient tested positive for HIV when the patient had no risk factors, other than having dental work done around the time his doctors estimated he contracted the disease. The OK State Department of Health has no oversight responsibilities for dental offices because they do not require a state facility license to operate. The Tulsa Health Department is involved somehow, probably because Harrington treated a number of Medicaid patients (so yes, likely that means some number of un- or underinsured children are involved), and now offers free testing to the implicated patients. I suspect, though I don’t have time to research it, that certain safety inspections are required for Medicaid providers, meaning that whatever agency office was responsible from the Medicaid perspective also missed the boat for what appears to be at least 6 years.

My point is this. Isn’t it someone’s responsibility to keep tabs on the safety and cleanliness of private practitioners’ offices? In this case, it seems the Board of Dentistry was primarily responsible for this oversight. Either the Board failed to satisfy their duties to protect the public health, or their duties are not defined to include regular health and safety investigations. Both are poor options.

If the allegations are correct, the dentist was wrong. But so was the state. Let’s not ignore the dereliction of duty either on the part of the Board, in failing to timely and appropriately investigate before years of unsafe dental practice, or on the part of the legislature, in failing to assign that duty in the first place.

All about breasts?

Jodi Jaecks, a breast cancer and double mastectomy survivor, recently won the right to swim topless at Seattle public pools during adult lap swim times.  According to media coverage, the general rule about attire at public pools is that all women must wear tops.  (I couldn’t find a direct link to actual policy from the Seattle Parks and Recreation Department.)  According to a recent press release from Seattle Parks and Recreation, the decision for Jaecks extends only to her, and only for adult lap swim times.  At present, any subsequent similar requests will be evaluated on a case-by-case basis.

Of course, additional case-by-case evaluations seem like an inefficient waste of time, money, and other procedural resources.  Why should Parks and Recreation require similarly situated people to go through the appeals process to get essentially the same exception to the rule?  Maybe they officials realized this problem; additional coverage of the issue suggests that the Parks and Recreation Superintendent is considering a “wholesale” change to the policy governing attire at public pools, and that such a broad spectrum change wouldn’t destroy the “family friendly” pool environment.  (Parks and Recreation offered this “family friendly” argument in support of its initial denial of Jaecks’s request.)

Let’s think a bit about what the Superintendent and any committee members should consider when evaluating a wholesale policy change.  There has been much chatter in the press about normalizing visions of breast cancer survivors.  (Go here and here for a couple of examples.)  There’s also the fact that full bathing suits can be quite painful for women living after double mastectomies.  But I want to focus on a broader issue that The Stranger touched upon briefly in its early coverage of Jaecks’s story.  How does the current policy apply to trans and queer individuals?  A post-op trans FTM person might look similar to Jaecks, but would be allowed to swim topless because he’s a he.  A pre-op trans FTM also identifies as a he, but has breasts.  So Parks and Recreation would force him to wear a bikini top.  After all, the current policy requires “gender appropriate swimwear.”  And what about a pre-op MTF?  In this case, a woman with no breasts… is she forced to go topless to conform to her current gender designation, socially imposed upon her?  (Interestingly, that would produce a result directly opposite of that which Jaecks initially received… a woman with no breasts forced to go *with* a top.)  How are cross-dressers treated?

In short, what exactly are the officials trying to cover up through the current policy?  It seems to reach beyond breasts and nipples.  It seems to reach a much broader policy of covering up bodies that do not conform to traditional notions of sex and gender (not to mention bodies that violate conventional ideas of functionality and ability).  Especially in a city known nationwide for its queer and trans activism (and apparently one of 2012’s “Gayest Cities”), in a state whose legislature legalized marriage equality, Seattle Parks and Recreation has much to consider here… beyond breasts.

Granny dropped the F-bomb

I’ll start this post with a story.  Yesterday I made a quick trip to Trader Joe’s for a few things, and outside the store was a young guy with a petition about an effort to end anti-gay bullying in local schools.  He wasn’t blocking the door, the stairs or ramp to the door, the sidewalks, or either of the crosswalks leading to the store.  Some people stopped to talk to him, and others walked past to do their shopping.  On my way out, I was waiting to cross the street and an elderly woman, with a walker, crossed the perpendicular street toward the store.  The guy chimed in with his opening line: “Help stop anti-gay bullying in our schools.”  Now, instead of just ignoring him and walking by, this old lady started ripping this kid a new one.  She actually yelled — verbally abused — this kid just for standing on a street corner, trying to do social justice work.  I was nearing my limit of listening to this when she stopped.  She walked part of the way up the ramp toward the store and lo and behold, she started screaming at this guy again.  I couldn’t take this woman’s attack any longer, so I turned around and said: “Lady, give the guy a break.  He’s here trying to do social justice work…” and mid-sentence, this granny looked me square in the eye, gave me the finger, said “F*ck you!” and walked/rolled into the store.

I was shocked.  In fact, the whole thing shocked another guy on the street walking his dogs, who turned to me and said: “What was that all about?!”  I briefly recounted.  It didn’t even seem that she was upset by the kid’s social justice goal.  It could’ve just as easily been a petition fostered by Young Republicans for Ron Paul.  She was angry by virtue of the mere fact that the kid had the gall to speak to her.

As I walked home with my eggs, vanilla (yes, I was baking) and a head full of disbelief, I started to think about a local law I read about recently.  Since 1968, the town of Middleborough, MA, has had an anti-profanity by-law on its books.  The by-law says: “Whoever having arrived at the age of discretion accosts or addresses another person with profane or obscene language in a street or other public place, may be punished by a fine of not more than $20.00 dollars [sic].”  Why would this be in the news recently?  Well, because on Monday the townspeople voted to approve a civil fine (the same $20) instead of a criminal penalty.  The language of the by-law is the same; the difference is just that the cops can enforce it as a civil penalty rather than a criminal offense, which means none of the processes and procedures that apply to criminal violations apply.  Feel free to check out the by-law (downloadable here), the approved change, the authorizing statute, and some commentary here, here, and here.

For the moment, let’s ignore the somewhat obvious questions about potential conflict with the First Amendment and assume the by-law is constitutional, valid, and enforceable.  Who has rights to complain of an infraction here?  Probably I do, because granny dropped the F-bomb while addressing me.  But that’s not really the point.  What about the guy with the petition?  I honestly can’t remember what words the woman said to him.  Is it profane to scream at him regardless of her word choice?  Profane can be defined as contempt or irreverence for “sacred” things, ideas or principles (see here and here).  How sacred is the guy’s right to stand on a street corner and respectfully ask for help for his cause?  Exactly what does this law cover?  And who gets to make that decision… the cop who levies the fine?  Further, at the end of the day, is $20 — or even $40 assuming granny violated the law when she addressed both me and the guy — enough of a penalty to make a difference?

This space is mine! Or, adventures in air travel.

We occupy spaces, and sometimes, those spaces come at a cost.  Let me give you three examples that bring this to a head (or a knee, as the case may be), all dealing with air travel.

A friend on Facebook recently posted this status: “I f*cking hate ‘Economy Plus’ concept. I am tall – give me leg room for free, and stop giving it to the 4’11” person who pays $50 extra.”  Now, to be fair, this person really is quite tall… several inches above 6 feet.  And it’s pretty easy to see his side of the argument; he physically needs the extra space, so the airline should give it to him.  Us shorter folks might appreciate the extra space for, say, easier laptop usage, but it’s not quite the same thing.  Regardless, the airlines charge more for the extra space.  And in the absence of the extra leg room, both the tall person and the person sitting in front of him/her are — well — uncomfortable for the duration of the flight because of knee or back pain.

Now consider another example… people who physically need more space horizontally rather than vertically.  I’m talking about fat people who spill over into the adjacent seat(s).  These people could probably make a similar argument to the one offered by the tall folks needing more leg room.  Think about it: “I am fat – give me tush room for free, and stop giving it to the thin person who [doesn’t need it].”  Again, the argument doesn’t fly (or hasn’t yet).  The airlines can charge more for an additional seat, and even require it in some cases.  And again, in the absence of the extra side space (i.e., an extra seat), both the fat person and the people on either side of him/her are uncomfortable for the duration of the flight.

The third example serves as a pseudo-remedy for half the people involved in the first scenario.  Just a few weeks before my friend’s Facebook post appeared on my news feed, the NYT published this article about a new contraption designed to block the person in front of you from reclining his or her seat.  It seems the people most likely to use this “Knee Defender” are the tall people, like my Facebook friend, whose knees are already pretty close to (or right up against) the seat in front of them before the passengers in the seats ahead push the recline button.  But isn’t it part of the seat’s functionality (for which people pay) to recline?  And if the person in 7C is using this Knee Defender contraption, I bet the person in 6C isn’t too happy about it.  6C paid for the seat.  The seat is designed to recline.  Isn’t it 6C’s choice to recline and use the functionality for which 6C paid?

The law’s answer is no.  The FAA says that the Knee Defender, costing $19.95, is legal.  The law also says that the airlines can charge $50 extra for additional leg room and require fat people to purchase a second seat (clearly for more than $50).  All three are about a person needing more space than standard coach seats allow.  The Knee Defender folks claim they are “standing up for the right of the tall guy to sit down.”  One could argue that the airlines, by requiring the purchase of an additional seat or extra leg room, are protecting the rights of the folks who fit in the standard seats.  Of course, there’s a fourth option: first class.  Tough for many air travelers to afford.  And if the spaces in coach are enlarged overall, it stands to reason that the cost of coach will come much closer to the cost of first class… prohibitively expensive in several cases, and likely an unpopular choice for the airlines to make.  Let’s assume that the spaces will not be enlarged any time soon.

So whose rights are actually protected by the law?  Thin people.  Short people.  Anyone who purchases a Knee Defender.  The Knee Defender manufacturer and the airlines, focusing on their profits.  Maybe all’s fair in commerce and air travel.  Stop and ask, though… is it really fair?  And which parts do you think are fair, while other parts perhaps are not?  Is it more fair to make fat people purchase additional seat space than it is to make tall people purchase additional knee space?  Why?  And what about our friends in 6C and 7C?  If 7C isn’t in Economy Plus, is it fair for 6C to have to sit with knees in his or her back for several hours?  [Tall folks aren’t (yet) required to pay for Economy Plus.]  On the flip side, is it fair to allow 7C to take away 6C’s right to recline?

Maybe the law’s answer should be that the rights to protect are those of the person who purchased the use of a particular space, and anyone who interferes with the use of that space is invading.  Or maybe the law’s answer should be that the airlines must accommodate now-larger Americans by increasing the spaces purchased.  What would be the costs?  And what are the costs we incur in the system as it currently exists?

“Culturally competent” health care

A recent NYT story retells the story of a patient who needed a catheter.  The patient presented as female, engaging in certain feminine gender performative behaviors.  The day of the surgery arrived and, lo and behold, the surgeon was surprised to find a biological male.  It seems the pre-operative work-up did not include sufficient discussion with the patient or a physical examination of the patient’s body into which the surgeon was soon to cut.

The real life problem is apparent.  Non-gender-normative individuals have a much more difficult time finding meaningful access to health care.  As the article depicts, this is not the first instance of or revelation about this type of problem.

Recent HHS recommendations seem to attempt to curtail this effect.  Among other things, “HHS will encourage new and existing health profession training programs, including behavioral health … programs, to include LGBT cultural competency curricula. The lack of culturally competent providers is a significant barrier to quality health care for many LGBT people, particularly those who identify as transgender.”  But, as the article notes, this proposed future action simply hasn’t cut it.  At least, not yet.

This is where the law enters the discussion.  Recommendations from Health and Human Services are just that.  Recommendations.  What is the law doing to mandate so-called “culturally competent” health care delivery?  Frankly, nothing.

Take Massachusetts as an example.  The first state to legalize gay marriage and the 16th state to pass a gender identity equality bill governs physician licensing by statute and regulation, none of which require this cultural competency.  Medical school accreditation standards similarly do not require training on this specific type of bedside manner and patient care, though a couple of standards perhaps come close (see ED-22 and ED-23).

So, it might seem that the easy solution is to legally mandate queer-friendly interpersonal skills sensitivity training for health care professionals.  The question becomes — how?  How can the law mandate good interpersonal skills, and how could such a mandate be enforced?  Should medical malpractice lawsuits be filed based on a failure to engage with patients in a respectful and meaningful way?  In the case described in the NYT article, the patient outcome wasn’t one that would typically fall into the medical malpractice category; the catheter insertion procedure went well.  Assuming this were to become the default regulation, is it feasible given the time and money required to file a suit these days?  Would such a requirement run into conflict with conscience clauses?

The question boils down to whether the law can, and should, require sensitivity to gender identity and other non-hegemonic identities or classifications in health care delivery (and potentially in other spheres of social service systems as well).  This is a real life social problem, but to date, the law has not been a player.

I look forward to your comments.

Social media, flash mobs, and the Constitution

We’ve seen a variety of situations recently where social media tools have been used for something other than social good.  A woman in Philadelphia posted an offer to pay $1000 for someone to kill the father of her baby, who is now dead… shot in the chest.  (Read the story here.)  The rioters in London used Blackberry Messenger (BBM), Facebook, and Twitter.  (Read here, here, and here, for example.)  The Cleveland suburb of Shaker Heights saw more than just fireworks this year on the Fourth of July.  (Read here.)  Violent flash mobs have been so frequent in Philadelphia that the mayor imposed a curfew for teens.  (Read here and here.)  Bay Area Rapid Transit (BART) Police shut off underground cell phone service last week in response to an above-ground protest.  (Read here and here.)  These are just a few examples.

Proponents of efforts to curtail the use of social media to incite violence seek to protect the greater good, i.e., keep the peaceful public safe from crazed mobs.  Opponents claim that such restrictions violate First Amendment rights of free speech and association.

In response to the July 4 mob and other similar activity, the Cleveland City Council adopted an ordinance as an “emergency measure” making it a misdemeanor crime to “use social media to induce persons to” riot, fail to disperse, or unlawfully congregate.  (See the press release or go here, click on July 27, and scroll down to printed page 1289 for the full text.)  The mayor vetoed the Flash Mob Ordinance, stating that it was too broad (so it would improperly criminalize peaceful flash mobs) and that any measure taken to curtail disruptive social-media-induced mobs needs to “be an effective deterrent to wrongdoers” (perhaps saying that the Flash Mob Ordinance didn’t go quite far enough with its punishment).  The ACLU hailed the veto as the right choice, describing the Flash Mob Ordinance as an unconstitutional prohibition on free speech.

Think about it in real life:

1. Where is the line between unconstitutional infringement on individual rights, on the one hand, and methods of protecting collective safety on the other?  I can easily think of times when initially harmless groups have grown unruly and I felt unsafe.  Do we, as a society, want to allow communication advancements to be used to purposely create unsafe situations?  London already said no.  But London isn’t subject to the U.S. First Amendment.  Then again, the First Amendment doesn’t protect hate speech.
2. How do you write a law that is a sufficient deterrent (by carrying a harsh enough punishment to mean something) and also sufficiently narrow to get the bad guys without getting the good guys?  Put another way, what happens when you plan your birthday party as a private event that mistakenly becomes public, and you have to flee your own party because of the Facebook-induced mob?  It happened to this poor girl in Germany, who avoided the mob, two small fires, broken glass, etc. by celebrating with her grandparents.
3. How would a such a law be enforced?  Retroactively, law enforcement could trace posts on Facebook, Twitter, and the like, but that somewhat misses the point.  Isn’t it better to get the bad guys in advance, before anything truly harmful happens?  Now, I realize that most of our criminal laws function retroactively (like robbery and murder) but some of them function proactively (like conspiracy).  Particularly in the case of social media outlets, we now have a relatively easy way of finding out about flash mobs in advance.  Will law enforcement start regularly surfing the social media channels for chatter about this?  Would such scanning infringe on the rights of law-abiding citizens?  Do you want the police scanning your Facebook posts?  Maybe your initial answer is no, but would you be willing to let the police scan your posts and Tweets if those efforts were likely to prevent violent mobs and rioting?  Now we’re back to the first question about the choices we make as a social system.
4. Who pays for this law?  Let’s adopt the Cleveland model for a minute, meaning that someone has to monitor social media to find the crime-inducing Tweets and posts.  How much would these scanning efforts cost tax payers?  Someone has to get paid to do this.  Maybe instead of using the police, we create a law that forces Facebook and Twitter to do the monitoring in order to operate.  Then it’s the private companies paying for it instead of the public, at least at the start, until some administrative body goes in to ensure that the private companies are doing what they should be, and then it’s back on the taxpayers’ balance sheet.
5. Against whom would the law be enforced?  Could this be another way of incentivizing profiling?  If so, who would be profiled?  Think about which people regularly access and use social media as tools.
6. What is the difference between a teenage curfew (already enforced in Philadelphia) and a law like the Flash Mob Ordinance (vetoed in Cleveland)?

These are just a few questions to get you thinking.  There are plenty more.  (As always, comments are welcome.)  I suspect that at some point, some group of lawyers or politicians will figure out a sufficiently deterring/harsh and sufficiently narrow way of writing a law that criminalizes the use of social media (and maybe even text messaging?) to create violent/unruly flash mobs.  At least, it will be sufficient to get the thing passed, and then we’ll see what the courts do with it.

Mandatory sick leave in Seattle

This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees.  Local news coverage of the developing story is available here, here, and here.  Some think of this effort as an important public health measure, designed to encourage sick employees to stay home.  Others think of it as an unnecessary increase in business operating costs.

First, let’s take a look at a few of the specifics in the ordinance.  Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer.  Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer.  Unused sick time from one year rolls over to the next.  Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings).  Employers may not retaliate against employees for using their sick leave.  New businesses are exempt from compliance for 2 years.

Then take a look at the details of how employees will access their sick leave.  All requests for sick leave should include the expected duration.  If possible, the request must be submitted in writing at least 10 days in advance.  Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.

Finally, take a look at how the sick leave mandate will be enforced.  A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation.  The Seattle OCR will investigate the claim and determine its validity.  If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner.  If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court.  There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.”  That determination is a precursor for any further proceedings.  In other words, an employee cannot sue in court without the OCR decision.

A few thoughts and questions about this law and real life:

• Who is served here?  Employers?  Employees?  Customers?
• Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits?  One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
• What about the proof?  How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it?  What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
• What about the records?  Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses.  Is it reasonable to mandate that smaller employers do this?  How would employees find out about violations?
• Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
• It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
• A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision.  (Read a bit about it here.)  Is it better to go national with this kind of law?  Would it ever pass?  Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City.  Also consider efforts at the state level in Connecticut, Massachusetts, and California.  If it’s a local issue, would businesses move out of the area to avoid compliance?