Access to records law gets attention of the House and the Senate

Yesterday, several U.S. Senators and House Representatives reportedly requested the U.S. Comptroller General to start an investigation of how citizen's requests for access to records under Freedom of Information Act (that's federal statute, New York has a state counterpart - FOIL, or Public Officers Law 87).

Their letter reportedly says, among other things, the following:

"The Freedom of Information Act (FOIA) is a vital tool that protects one of the cornerstones of our Nation: the American public's right to know what its government is up to."

The Congressmen obviously did not ask the opinion of some Delaware County officials about the value of access-to-records laws (such as "don't get your nose into our business, etc.") before writing the letter.

This letter.

It will definitely help not only for federal, but also for state public officials to read that letter.

Because it applies to state records, and state access-to-records laws, too.

And, of course, there are not only FOIA and FOIL among access-to-records laws, the scope of these laws is much broader, and all of those laws help people figure out what the government is up to.

I am currently preparing a book specifically on access to records in a certain narrow area of law where knowledge about access to records laws can help a lot of people who are, let's say, far from being privileged members of society.

I cannot promise the date of publication, as it gets delayed by my appeals of the disciplinary case (which now has a likelihood to head towards the U.S. Supreme Court), and I write in two languages at the same time (Russian and English, the books will not be 100% identical), but I do promise that 

• it will be this year, that 
• it will be affordable, that 
• it will cite to free and readily available information sources and 
• that it will be both in e-version and in print;
• there is a possibility of a Spanish translation the year after the year of publication; and
• there is a possibility of an audio version in Russian and in English.

And, of course, I promise thorough research and valuable information in the book as to how to access records in that narrow area of law (which will be applicable in wider settings, too, since these laws have a very wide area of application).

The value of access-to-records laws where litigation is pending, going on or threatened, is that such access-to-records efforts may be done as a leverage against the government, outside of court proceedings, and thus outside of control of courts that are often biased in government's favor.

The publication date approaches, but is still away.

I am vigorously working on the book and I promise I will make the publication date known on the blog.

I will post some interesting blogs tomorrow commenting on public documents obtained through access to records laws and otherwise freely obtained on the Internet.

Stay tuned.

The Oklahoma legislation is going to fix what didn't need to be fixed, but was undermined by a judicial decision - the forcible sodomy statute

I wrote yesterday about five judges who made life unsafe and dangerous in Oklahoma by a unanimous 2-page decision interpreting the Oklahoma criminal forcible sodomy law as not including the situations when the victim is intoxicated or unconscious.

The statute, in fact, does have in it an element of lack of consent when the person's mind is unsound (that includes, for any reasonable mind, temporary unsoundness through intoxication or unconsciousness).

The 5 judges, as I wrote in my yesterday's blog, are all very "accomplished", they are all portrayed in their biographies as brilliant lawyers, scholars and jurists.

In other words, they are definitely not dumb and they certainly can read.

And if, after they read the statute that includes a provision for "unsoundness of mind", they still ruled - unanimously - that intoxication or unconsciousness of the victim is not included into that statute, one needs to look for answers for that decision deeper - and I hope that the FBI should look into the possible case of corruption, and not necessarily by relatives of the defendant.

There may be some high-ranking perv somewhere, caught for the same thing, who needed protection - and got it.

In any event, the Oklahoma Legislature reacted to this collective act of judicial unsoundness of minds (or corruption) by publicly announcing that they will fix the perceived gap in the criminal forcible sodomy laws.

The sad part about it is that - it didn't need fixing, and more taxpayer money will be poured into the hole, simply because some supposedly "brilliant" public servants would not do their jobs properly. 

 

By ruling that forcible sodomy laws do not apply to intoxicated or unconscious victims, Oklahoma was turned into a dangerous place for residents and visitors

In a disturbing ruling, the Oklahoma Court of Criminal Appeals declined to "enlarge the statute" for forcible sodomy, and declined to apply the forcible sodomy statute to victims who are intoxicated or unconscious.

Here is the decision.

Here is the statute:

The court claimed that none of the 5 factors enumerated in the statute are applicable when the victim is intoxicated or unconscious.

It happens rarely, but my personal opinion here is that the ruling is incorrect, and not just on the emotional level.

Subsection (B)(2) clearly includes into the crime of forcible sodomy a "sodomy committed upon a person incapable through mental illness or any other unsoundness of mind of giving legal consent regardless of the age of the person committing the crime".

Both or either intoxication and unconsciousness can be argued to be temporary unsoundness of mind. 

What was created in Oklahoma is a dangerous precedent encouraging rapists to get their victims drunk in order to escape criminal liability.

And that's definitely not the legislative purpose of the statute.

Oklahoma has become a dangerous state.  With just one 2-page decision by these five judges:

Here are the judges who made the decision.

Judge Robert L. Hudson:

 Judge Clancy Smith:

Judge Gary L. Lumpkin:

Judge Arlene Johnson:

Judge David B. Lewis:

All of these 5 people unanimously concurred in ruling that intoxication or unconsciousness does not fall under temporary unsoundness of mind preventing consent to sodomy - that's oral or anal sex without consent.

Unanimously.

I understand the concept of judicial restraint and unwillingness to legislate from the bench.

Yet, here this concept was completely uncalled for.

These 5 people left residents and visitors of Oklahoma unsafe to sexual assaults if they are in a helpless condition.

These 5 people also gave an opportunity for really sick crimes to be committed - because such an approach does not take into consideration as to who rendered the person intoxicated or unconscious.

These 5 judges put together a defense for really sick individuals to first lace the drink or get a person drunk, or beat the person unconscious - and THEN rape him or her.

The sick birds on the street are no thinking - "we've got a free ride" out of prison.

Think about it - with those shining biographies.

Those careers.

A high school.

A college.

A law school.

Career as a lawyer.

Career as a judge.

FIVE PEOPLE, all educated as lawyers and judges - could not READ and understand that "unsound of mind" applies to unconsciousness or intoxication.

Unanimously they could not read that?

Or, another, more sinister explanation may be that they know there is some pervert in their ranks who is afraid for the statute to be - soon - applied to him and her, and they unanimously protect that pervert by their decision?

It is not very often that I think prosecution in a criminal case is right.

Here - at least as a matter of law, without going into the case's facts - it is.

The prosecutor stated that the court's decision is "insane, dangerous and offensive".    I couldn't agree more.

Honesty of the local law enforcement personnel in Delaware County, New York, is governed by insurance policy

Now that all the foaming accusations against me subsided for alleging the unthinkable - that local law enforcement personnel and firefighters may be committing misconduct in non-extinguishing and non-investigation of the house of a local critic of governmental misconduct Barbara O'Sullivan, I will publish a portion of a document that I actually received on April 26, 2016 from Delaware County in response to my FOIL request.

That's a portion of Delaware County liability insurance policy for actions of its law enforcement personnel.

The policy is pretty standard and, I am sure, a similar policy covers actions of firefighters.

Here is the interesting portion that I would like to share (I will analyze the policy in a separate blog, probably, tomorrow):

There were a lot of people who, based on their emotional attachments to individuals working in the local law enforcement and the Delhi Fire Department, defended their loved ones to the point of casting ugly allegations against the victims in Barbara O'Sullivan's house fire, as well as against her daughter, her extended family, me who reported the case, misconduct of the law enforcement and firefighters included, and even against my husband who has nothing to do with reporting of Barbara O'Sullivan's house fire story.  

Those relatives , driven by their emotional attachment to their loved ones, were telling me that "they know", even though they were never at the scene of the fire, because "they know" their husbands, or boyfriends, or former comrades-in-arms, and "they know" that those loved ones or comrades "can never" and "they are not liars", and because of that, I am the liar, and I need to have my head checked out, and to relearn the law (why I need to relearn the law in journalism, I don't know), and all other nice things that I need to do, including apologize to the Fire Department.

I won't apologize.

Read the liability policy of Delaware County regarding its law enforcement personnel.

It is pretty standard policy, I am sure.

Just read it.

The insurance policy says, in black and white, that "the insured" "shall not" (that is a prohibition) "admit any liability" or "assume any obligation".

Do you know what that means?

It means that Delaware County law enforcement personnel is PROHIBITED to tell the truth and "admit a liability" or "assume an obligation" - in other words, they are PROHIBITED to say - YES, I caused a bodily injury of this person, or "I neglected my duties and caused injury to a person or property".

They are prohibited to say that.

You can read the full text of the insurance policy here.

And, even though I will be requesting a separate policy as to firefighters, I am pretty sure that it will say the same.

So much for the claimed honesty.

Just saying...

The demographics of the rural Otsego and Delaware County, New York - people are leaving, while the government is growing

Yes, yes, yes, I know, there is small lies, big lies and statistics.

Statistics may be manipulated, may be forged and fabricated, that's true.

But, when many business decisions are independently made by various businesses and local governments based on demographic statistics, such statistics must be true.

People who want to make money will not turn money down based on fake statistics - they will research.

And Fox Hospital from Oneonta, NY did its research of demographics in the area.

And is closing its maternity services that were serving Otsego and Delaware Counties.

Not enough babies being born is cited as the reason.

To cut costs, the hospital now "consolidated" its "labor and delivery" services with Basset Hospital in Cooperstown, NY.

Oneonta, NY, by the way, is located right on Interstate-88, while Cooperstown, NY is reachable only by one-lane county roads that can be tough to navigate in winter.

This is the second maternity hospital that closed in the area within the last 10 years - after the maternity wing in Delaware Valley Hospital in Walton, New York.

Delaware Valley maternity hospital (where my teenage son was born) served rural community in Delaware County for years - and served it well.  

Delaware Valley had only two labor rooms in the entire hospital.  When I was giving birth there, it was the only birth for 2 days.

Finally, Delaware Valley considered it not cost-efficient to continue to run its "labor and delivery" services in an area with dwindling population - where an entire elementary school building, the Abraham Kellogg Elementary School, had to be closed in 2008 and sold by the Delaware County School District because there were no children left to fill that building.

The Abraham Kellogg Elementary School that closed in 2008 reportedly served 46 children in grades 1 through 4.

Fox is not the business or entity taking notice of dwindling population in the area.

This year, Delhi, NY, the seat of Delaware County, announced it is now "reconsidering" the much promoted project to build a swimming pool in the Legion Field.

Which is quite an extraordinary event, considering that just this past November the so-called "Pool Committee" has decided to "go forward" with construction, and was soliciting bids - and donations for such a construction, and that donations are being solicited to this day.

By the way, even though the pool is not going to be built, at least in the original scale, at least at this time (looks like ever), and even though the decision that bids are not approved has already been announced on January 16, 2016, that announcement did not appear on the "Pool Committee"'s website, and the website still has the "Donate" button as of today.

So, I wonder where all of those donations already collected are going.

Once again - on November 4, 2015 (the day of elections, by the way), there was a "go ahead" press release soliciting written bids and donations from the public.  It was like a plea - RE-ELECT ME NOW!  We brought this great project about.

On November 15, 2015 the Town of Delhi, NY published the invitation for bidding for construction of the pool (issued, curiously, 6 days prior, but for some reason not immediately published - why? "the near and dear" to the Town officials' hearts were first notified in a private setting?).

On December 11, 2015 there was an announcement on the Facebook page of the Pool Committee - but not on its main webpage - that "a legal snafu has caused a delay in the bidding process".

The latest "news" on the Delhi Pool Committee's main webpage remain this - those who know the location will see the playground in the back dwarfed by the "project" that was to be built in the area usually flooded by the West Branch of the Delaware River (I lived in Delhi, NY for 17 years, experienced such floods and saw this particular spot as a lake with ducks instead of people swimming all over it):

If you click the "read more" little red words, this opens:

In early January of 2016, bids for construction of the pool (two) came "too high", and the Pool Committee together with the Town of Delhi and the State of New York (that participated with a grant) is now considering a "scale-down" of the project - without notifying its readers on either their main webpage or on the Facebook page, and while continuing to invite donations, even though there is no assurance that the pool-building project will ever go ahead.

The interesting part is that there are no suggestions to collect more donations - only to "scale down" the project.  No people to "serve", it's starting to dawn, right?

And boy do they have to "consider" a scale-down - with the schools having to close and maternity hospitals in the area having to close - because people are leaving the area, with children in tow - who would come to use this "project"?

It will be an "attractive nuisance" and a liability for the remaining Delhi Town taxpayers, it will require a lot of funds for upkeep and garbage removal, it can be overrun by recurrent floods in the area, but it is doubtful that it will be "serving" a lot of people.

It is very obvious that, based on the facts of 

• schools that are closing for lack of children,
• maternity hospitals, even in a relatively large college towns, are closing;
• "scalings-down" of major "community projects"

population in Otesgo and Delaware County is flying out.

In droves.

Which brings me to the question:

what will happen to the budgets of:

• The school districts - when there are less children to teach;
• Social Services - where there are less families to supervise;
• Police and District Attorney's offices - where there are less people to commit crimes;
• the Court system - where there are less cases to be brought voluntarily by local residents, and by social services and the District Attorney?

So far, the process was in reverse to the population dynamics.

There is a huge inflated budget of Delaware County Department of Social services - that, of course, has to feed: 

• all the clans illegally employed by the County, the "hiring process" is described here, and 
• the tumor on the budget of Delaware County, the Delaware Opportunities Inc.  (and the like organizations fed out of the County's budget) where the local governmental officials that command the budget sit on the Board and where, reportedly, a ton of relatives and friends of county officials are employed.

In July of 2015, a new, fourth prosecutor, was authorized for the Delaware County District Attorney's Office, see here and here.

In other words - while people are leaving the State of New York, and the rural counties, which is shown by business decisions to close schools, maternity hospitals and ditch the much-promoted swimming pool project, the "demographics" of the local government goes in reverse - it grows, salaries of officials grow, numbers of officials (judges, prosecutors) grow.

Why? 

Because these people will not survive outside of the government, in an honest self-made business?

They need taxpayers as captive cash cows to subsidize them?

Watch out, Delaware County taxpayers, as well as Delhi Village and Town taxpayers, for any increases of levies or taxes.

The parasites in the local government need the money of the remaining captive cash cows, the taxpayers, to survive, thrive and feed their clans.

Say "no" to the growing local budgets.

They have no basis to ask for growth.

And - I will run a separate blog on the unfunded increase of the salaries of local County District Attorneys, as well as a separate blog about the alleged "budget savings" recently reported by the Delaware County Department of Social Services.

Stay tuned.

Attorney misconduct of the Florida Bar in prosecuting attorney misconduct - what else is new

I've just submitted (two days ago) a motion for rehearing of my constitutional appeal as of right in my disciplinary case, the last step before going to the U.S. Supreme Court.

I will publish the entire motion and comment on it in a separate blog, today or tomorrow.

One of the prominent issues in my case was misconduct of New York State disciplinary authority in prosecuting me for alleged attorney misconduct - where New York State disciplinary authorities actually refused to prosecute themselves for multiple disciplinary violations and dismissed complaints against themselves.

A similar situation of misconduct is currently unfolding in Florida.

There, an attorney who was consulted about a disciplinary case by the subjects of the disciplinary investigation and prosecution, then switched sides and ghost-wrote an affidavit for the prosecutors, while reportedly making false claims in that affidavit into the bargain.

The lawyers - same as I did in my case - requested dismissal of the disciplinary proceedings based on prosecutorial misconduct, because it goes without saying that an attorney misconduct proceeding cannot be prosecuted with the help of attorney misconduct.

Here, attorney misconduct was apparent.

1) There was a conflict of interest in the attorney initially contacted about representing the defense side to switch to the prosecution side;

2) There was misconduct of the prosecution side to accept such help and allow the former defense attorney in the same case to ghost-write a pleading for the prosecution;

3) There is misconduct on the side of the former defense attorney and the disciplinary prosecutors to submit such a pleading to the court, and to submit a false affidavit to the court.

Definitely, means by which the government acts, matter.

And definitely, the attorneys who were and still are subjects of investigation and prosecution in Florida, irrespective of whether they actually did or did not do anything wrong, were deprived of their due process right of an impartial prosecutor, and to have elementary honesty in proceedings.

A disciplinary prosecutor should be squeaky clean and practice what he preaches, first and foremost.

Shouldn't he?

A new U.S. Supreme Court 1st Amendment case - factual mistake in sanctioning an employee for protected conduct is not a defense in a civil rights lawsuit

Yesterday, the U.S. Supreme Court has issued an interesting opinion where it protected, in a majority opinion, the right of governmental employees not to be punished for conduct protected by the 1st Amendment. 

Here is the opinion in full.

The case is decidedly weird, on many levels.

The gist of it is that a police officer was demoted because somebody saw him (and reported him to his supervisor) standing with a sign supporting a certain official in his election campaign and talking to that person's campaign workers.

The supervisor perceived that reported conduct of the police officer as participating in a political activity - which is not allowed to police officers and other government employees.

It was actually a misunderstanding.  The police officer held a sign he was bringing home to his bed-ridden disabled mother at her request, he did not support the campaign of that individual personally.

The big fight was that the officer was demoted and sued for discrimination on 1st Amendment grounds, among other grounds.

The dissent said that, since it was a misunderstanding and the officer did not ACTUALLY engage in political conduct, 1st Amendment cannot be invoked in his lawsuit.  In the opinion of the dissent, what was done to the police officer (demoting from investigator to patrol) was "callous, but not unconstitutional".

Whether the 1st Amendment could or could not be invoked by the officer in a discrimination lawsuit made a difference between whether the officer's civil rights case would be dismissed or allowed to proceed.

The U.S. Supreme Court reversed the lower courts' decisions and allowed the officer's case to proceed, stating that factual mistake is no defense.  If the officer's employer believed that the officer is demoted because of his participation in a political campaign, that was activity protected by the 1st Amendment, and the lawsuit could proceed.

The issue though is not that simple.

In fact, if the officer's employer believed that the officer did participate in a political campaign, and did that openly, so that his holding of the sign while talking to the campaign workers of a certain political candidate could send a message to the public that the local police endorses that political candidate, and where such political activity was prohibited as a condition of employment, the government was justified to demote or fire the officer, 1st Amendment or no 1st Amendment.

Such firing would definitely have met the required strict scrutiny test, because on the other side of the balancing test as to whether the 1st Amendment rights were violated and whether such a demotion or even firing would be permissible under the 1st Amendment, is the requirement of government neutrality and non-endorsement by the government of political candidates, to preserve integrity of democratic elections.

So, I am afraid, we did not see the last of that case, it can return to the U.S. Supreme Court after its round through the lower courts on remand, and, of course, I will report it if it does return.

Stay tuned.