Could you become a citizen?

I recently had the honor of attending a citizenship ceremony.  It was absolutely wonderful. There were 26 future citizens from 12 different countries.  A chorus from a local high school sang a serenade of three patriotic songs.  It made me tearful and proud.  Of course, the chorus sang the Star Spangled Banner as the audience and new citizens sang.

Bangor High School Chorus

One of the judges told about his family's emigration from Italy to the United States and how it affected his life.

What I found most surprising was the oath.

Getting her citizenship certificate

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."

I had no idea as a native born that the Oath placed an emphasis on your support of the military, defending the United States.  The Oath values, not democracy, equality, freedom, liberty, but your general support of the Constitution.  Take a look at the words, "defend the Constitution and the laws...against all enemies", "bear arms", "perform noncombatant service in the Armed Forces",

Mary Calder, citizen

My friend became a citizen is in her early 60s (I'm in my 60s too) so she's probably not going to join the military.  She's a nurse so she is definitely serving her new country.

If you were writing the oath, what would you put in it?  What would you emphasize?

Management.Vision emphasizes practical and proven methods to ensure a better work environment.

Right to Privacy of Government Employees

Snooping on the San Bernardino Shooter as a Public Management Responsibility

The IPhone and San Bernardino shooter controversy has an important facet that is not as often discussed. The news has focused on the Apple’s desire to protect the privacy of its customers.  However, Sayed Farook was not an Apple Customer.  The customer was San Bernardino County.  The County gave its permission to the FBI to investigate his phone.   Does a public employer have the right to snoop in a public employee's desk, phone, computer?  Should I even call it snooping?

In some ways, public employees have more protections of their privacy than private sector employees.  The Fourth amendment gives public employees rights against unreasonable search and seizure and by extension a reasonable right to privacy.  In the case of a phone issued by San Bernardino to conduct public business, Farook, had little expectation of privacy.  The Courts balance “[public] employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” (O’Connor v Ortega 1987). The phone was to be used for government business so it makes sense that the County would supervise and control the Iphone.

If you look at the government’s motion [for Apple] to comply, it is strictly about its authority under the All Writs Act to obtain compliance. Apple’s response indicates that it doesn’t support terrorists, it has complied thus far, and it needs to protect the privacy of its customers by not creating a backdoor means to open the iPhone.  The fact that the phone is owned by a government entity is not mentioned in either party's proceedings.

Although it is interesting for us to speculate whether we agree with the position of the government or with Apple, a manager needs to consider what responsibilities and rights he or she has to investigate a public employee's workplace.  I suspect that the FBI also went through Farook's work computer, work phone (land line) and desk as well as the provided cell phone. The Courts tend to favor balancing tests, is it reasonable vs an employee’s right to privacy.  Your best bet then is to consider whether the search is work related and not excessively intrusive (Quon v Ontario 2010).  Is it reasonable to search a public employee’s electronic communication? The Supreme Court said yes to search a pager and employers whether public or private have been able to investigate an employee's download habits that yield visits to porn sites.

For the government's and Apple's position, go to http://www.csmonitor.com/World/Passcode/2016/0219/Read-DOJ-s-motion-to-compel-Apple-to-crack-the-San-Bernardino-iPhone

If you would like a consultation, please contact me at Ball@maine.edu

Should you advertise your nonprofit as employment at will?

Should you advertise that you are employment at will?

While I was attending a school board meeting, a superintendent differentiated his staff from the unionized school staff as employment-at-will.  Employment at will means that you can terminate an employee at any time for any reason.  He was actually wrong about his status and that of his staff.  He has a contract.  If his employer, the school board, decides to dismiss him at any time, then it has violated the contract.  I’ve seen this time and time again in local government.  Local governments are surprised when they have to pay a town manager when they’ve violated the contract they sign. Second, public sector employees have constitutional due process right to their job.  In effect that means that the public employer has to provide some sort of grievance procedure, an appeal procedure of some sort. 

It’s true that the remainder of employers are employers-at-will with the caveat of those with employees who have a union contract or individual contract.  Most courts have upheld this common law principle with very few exceptions, even whistleblowers lack protection according to NY courts.  This is good news for the nonprofit (or private sector employer) that wants to be free of interventions.  Do you have a statement to this fact on, say, your application, in an employee handbook, or letter of a job offering?  Do you make new employees sign a statement that the offer letter or employee handbook does not constitute a contract?  If so, then you are highlighting your right of employment at will.  Now take a look at your policies? Do they conflict with this idea?  Do you actually want to be known as an employer-at-will? 

Do you have

• An individual or union contract with any employees
• Grievance procedure
• EEO policy (you can’t fire a person based upon Sex, National Origin, Race, Religion, Color, Disability, Age, and in some states Sexual Orientation)
• An introductory period or probationary period
• An evaluation process, a promotion process based upon favorable evaluations
• A disciplinary process
• An exit interview process

All these policies are the types of policies your lawyer on your board would recommend you have, but they send a decidedly different message from prominently stating your right to be an employment-at-will. 

As you review your policies, consider what you are trying to do.  Is employment-at-will the policy you most want to highlight.  If so, then you might want to eliminate some of the policies highlighted above.  If not, then you might highlight your mission, your good reputation as an employer, your family friendly policies, great benefits, or satisfied employees.

No matter what you decide, your employees who are let go without cause or documentation are eligible for unemployment.  Firing for no apparent reason will most certainly cause you to pay unemployment no matter what state you are in and no matter whether you say you are employment-at-will or not.

Should you pay volunteers?

Can you have paid volunteers?  

Isn't that an oxymoron?

It has long been custom to pay volunteer firefighters for the time they spend training, attending training, for accommodations, travel, and meals if the training is a distance.  That is the custom in many other nonprofits as well.  In addition, firefighters sometimes receive a stipend for the time they work on a fire, usually a flat amount.

Firefighters whether paid or volunteer love their job.Talk to any firefighter about the last job he or she was on and you'll see.  That doesn't mean they can't gripe, but they are admittedly a pretty satisfied group with their jobs.

Fire departments are running into a problem even with the dedicated volunteers.  There just aren't enough of them.  Fire departments recruit  new volunteers by word of mouth. That's been a pretty good way. Firefighters are highly visible in any community.   I got into a conversation with an employee at a local business in a neighboring town and suggested she talk to our chief about volunteering.  I did that even though I'm not a volunteer, just know lots of them. Fire departments have actively set up junior firefighter programs to help with a pipeline of the next recruits.   If you are familiar with the Rotary, a service organization, it too has set up a pipeline of young people, Rotaract,  who may join the Rotary in the future.

Even with the most ambitious plans, rural and suburban fire departments are increasingly finding it difficult to find enough recruits.  In Vacationland,Maine, (where I am writing this) many communities have the additional problem of losing not only jobs half the year, but population as well. That doesn't mean they need half the firefighters.  There are still 24 hours in a day.  Some of  lack of new recruits  is due to the decline in independent businesses. Employees can no longer take time away from their jobs.  It also has to do with the loss of jobs in our small communities.  It's not uncommon for fire fighters to live in one community and work in another and even volunteer as a firefighter in both communities.  Still that means that many firefighters are not available at the drop of a hat, that is the call over the phone or whatever communication device the fire department uses.  ay.

That leads to the incremental use of more paid firefighters.  Firefighting has long been a skilled practice with new ways and means of fighting being developed, more and more involvement in emergency planning, and even cross training with EMTs and police.  It makes sense that a small departments may now need a professional chief responsible for insurance issues, equipment depreciation, training, etc.  Then a fire department might need a paid Asst. Chief.

You can see where I 'm going now.  One department near  me is considering paying an on-call hourly wage initially of $8.00 for a minimum of two hours to volunteers.  Its an attempt to provide an incentive for more to volunteer.  The proposal also calls for hiring additional full time firefighters at a competitive rate.  Now you are seeing the problem.

Alfie Kohn, has said in Punished by Rewards, that incentives can often be a disincentive, reducing self-motivation.  So oddly enough paying volunteers to work along side paid firefighters, may not work, particularly as volunteers are paid about half of what a full-time firefighter would is paid.
 
So what is a fire department to do or any other volunteer agency that relies primarily on volunteers to deliver its primary service?  Paying volunteers more won't change the basic structural problems in our rural communities, an older population and a lack of jobs to keep younger volunteers in the community. This then though not the best solution will buy time while considering the costs of a full-time department. For the full article, see http://tinyurl.com/zxw4zlo

Sunshine Week and Corruption

Sunshine Week and Corruption

This week is Sunshine Week, Mar 15-21, 2015. I've had a number of conversations with people who have bandied about the word corrupt as in the system is corrupt.  It normally means that an official is or is thought to be taking money or making money under the table deals, but it seems to have blossomed into a word that means that officials, the agency and more broadly the system doesn't serve the people or citizens.  They serve themselves. They hide in a bureaucracy of rules  

The antidote is sunshine; another word is transparency, ensuring that the public has information available simply because officials are conducting public business.  This week, Sunshine Week (Mar 15-21) promotes this idea.  Our town and city officials are very much aware of the their responsibilities under the Maine Freedom of Access Act through training provided at various MMA and Town, City, and County sponsored meetings and workshops.  If you have ever received an email from any town official, it states that the email is likely to be a public record.  Maine law makes almost all meetings public and all records public, even drafts of minutes of a meeting.  As one might expect there are some exceptions; an employee evaluation and disciplinary actions except the final written decision.  

The legislation, although comprehensive, needs to be reviewed periodically as we move from one new technology to the next.  Just as we receive Emergency Management push notifications of missing children, schools have begun to use push notifications to let parents know about school closings. These parent phone numbers are probably confidential but emails may or may not be confidential. 

Many organizations are putting more and more information on the web giving us greater access but right now our Freedom of Access Act is passive.  It limits the destruction of records but still puts the burden on the citizen to request rather than making it public policy for communities and schools to easily make available information.  The actions of the Governor of New York shutting down a commission to investigate corruption when it got too close to his allies and his office, explains why we need to be more active use of the newest technologies to communicate with citizens.  More eyes creates participation. A commission is after the fact when the perception or corruption has already occurred.  Gone are the days when involvement in government is reading the newspaper.  governments need to maximize their connections to citizens.  Then we can hope that the meaning of corruption will not expand.

Taxing Nonprofits

As we begin the budget debate here in Maine Governor LePage has put out a plan to gradually reduce the income tax by, among other things, allowing communities to levy the  property tax on    large nonprofits and eliminating revenue sharing to communities.  What is probably ideological is his desire to reduce income tax in favor of an increased sales, renamed consumption tax, and a return to more taxing at the local level.  What is probably not an ideological, but pragmatic, is the search for new goods, services, and now properties to tax. 

For both nonprofits and local communities this raises all sorts of implications.  As it is now, some nonprofits pay sales taxes when they purchase goods, others do not.  Maine exempts large swaths of nonprofits form paying sales tax, primarily in the heath area, hospitals and clinics, but not educational health organizations;  churches; schools; and nonprofit fire departments, for example.  Nonprofits also pay property taxes and income taxes on businesses in which they make a profit.  Usually these businesses are established to feed back funds into the nonprofit and are common in healthcare.   The medical lab of Eastern Maine Healthcare is for profit to support the hospital as a whole.

Nonprofits will want to defend themselves, by citing aggregate services they provide to the economy, jobs they provide and services they provide that government does not have to provide.  This will not be enough.  This argument could be made by for profits as well, and libertarians would go so far as to say that businesses should not be taxed at all because they are the job creators.  Most of us, however, are more pragmatic and see it as necessary to levy taxes on businesses and some nonprofits.

The difference has to be in how nonprofits convey what they do with greater transparency.  As a member of my community's warrant committee, each year we ask nonprofits who are requesting a donation from the town to provide basic financial figures and the number of persons served and any subsidies to community members.

This should not be hard to find in the days of the internet, yet it often is.  In fact, many nonprofits don't even identify themselves as nonprofit on their websites.  In a study I conducted of Indiana nonprofit websites (excluding hospitals, but not clinics), a little over half,  53%, identified  themselves as a nonprofit by using such words as nonprofit, non-profit, not-for-profit, nonprofit, charity, 501c3 (an IRS identification of a nonprofit), 990 (the form that nonprofits must send to the IRS), or tax-exempt. 

Hospitals have one more obligation: they must provide a community benefit form, to the public and IRS, in order to retain their nonprofit status.  Community benefits include subsidized health care, unreimbursed costs, and patient and community health education.  These reports may not be enough if we can't easily distinguish whether a hospital is for profit or nonprofit.  Educational institutions are under no such similar obligation and we often call these large institutions, private, think of Bates, Bowdoin, and Colby, to distinguish them from our state educational institutions.  They, too, will need to be more transparent in what community benefits they provide in lieu of property taxes. 

I will discuss nonprofit transparency further in a coming blog.

Taxing Nonprofits

As we begin the budget debate here in Maine Governor LePage has put out a plan to gradually reduce the income tax by, among other things, allowing communities to levy the  property tax on    large nonprofits and eliminating revenue sharing to communities.  What is probably ideological is his desire to reduce income tax in favor of an increased sales, renamed consumption tax, and a return to more taxing at the local level.  What is probably not an ideological, but pragmatic, is the search for new goods, services, and now properties to tax. 

For both nonprofits and local communities this raises all sorts of implications.  As it is now, some nonprofits pay sales taxes when they purchase goods, others do not.  Maine exempts large swaths of nonprofits form paying sales tax, primarily in the heath area, hospitals and clinics, but not educational health organizations;  churches; schools; and nonprofit fire departments, for example.  Nonprofits also pay property taxes and income taxes on businesses in which they make a profit.  Usually these businesses are established to feed back funds into the nonprofit and are common in healthcare.   The medical lab of Eastern Maine Healthcare is for profit to support the hospital as a whole.

Nonprofits will want to defend themselves, by citing aggregate services they provide to the economy, jobs they provide and services they provide that government does not have to provide.  This will not be enough.  This argument could be made by for profits as well, and libertarians would go so far as to say that businesses should not be taxed at all because they are the job creators.  Most of us, however, are more pragmatic and see it as necessary to levy taxes on businesses and some nonprofits.

The difference has to be in how nonprofits convey what they do with greater transparency.  As a member of my community's warrant committee, each year we ask nonprofits who are requesting a donation from the town to provide basic financial figures and the number of persons served and any subsidies to community members.

This should not be hard to find in the days of the internet, yet it often is.  In fact, many nonprofits don't even identify themselves as nonprofit on their websites.  In a study I conducted of Indiana nonprofit websites (excluding hospitals, but not clinics), a little over half,  53%, identified  themselves as a nonprofit by using such words as nonprofit, non-profit, not-for-profit, nonprofit, charity, 501c3 (an IRS identification of a nonprofit), 990 (the form that nonprofits must send to the IRS), or tax-exempt. 

Hospitals have one more obligation: they must provide a community benefit form, to the public and IRS, in order to retain their nonprofit status.  Community benefits include subsidized health care, unreimbursed costs, and patient and community health education.  These reports may not be enough if we can't easily distinguish whether a hospital is for profit or nonprofit.  Educational institutions are under no such similar obligation and we often call these large institutions, private, think of Bates, Bowdoin, and Colby, to distinguish them from our state educational institutions.  They, too, will need to be more transparent in what community benefits they provide in lieu of property taxes. 

I will discuss nonprofit transparency further in a coming blog.