The Thorns of a Dilemma

Issues are like roses. Some are thornier than others. Consider the following news item, as reported by the Boston Globe:

Off-the-job smoker sues over firing

A Buzzards Bay man has sued The Scotts Co. , the lawn care giant, for firing him after a drug test showed nicotine in his urine, indicating that he had violated a company policy forbidding employees to smoke on or off the job.

The suit, filed yesterday in Suffolk Superior Court, is highly unusual because it involves an employee who was terminated for engaging in legal activities away from the workplace. The lawyer who filed the complaint said he believes it is the first of its kind in the state.

Scotts announced last year that it would no longer hire tobacco users, a policy company officials said was intended to improve employee wellness and drive down the company’s healthcare costs. But civil libertarians say it violates personal privacy rights and could be used to mask age discrimination or other illegal behavior.

“Employers should be greatly concerned about how employees perform their jobs and what happens in the workplace, but how employees want to lead their private lives is their own business,” said Boston lawyer Harvey A. Schwartz, who represents Scott Rodrigues in his civil rights and privacy violation lawsuit against Scotts.

“Next they’re going to say, ‘You don’t get enough exercise’ or ‘Both your parents died of a heart attack at age 45 so we don’t want to hire you because you’re more likely to need medical care,’ ” Schwartz said. “I don’t think anybody ought to be smoking cigarettes, but as long as it’s legal, it’s none of the employer’s business as long as it doesn’t impact the workplace.”

Jim King, a Scotts spokesman, said company lawyers had not seen the lawsuit and would not comment on it.

But he said the tobacco policy is intended to reduce medical costs for the self-insured company, which he described as deeply committed to promoting good health among its employees; he noted that Scotts built a $5 million wellness center at its Marysville, Ohio, headquarters last year and reimburses some workers for fitness club memberships. And while Scotts screens all new hires for drugs, including nicotine, he said it does not conduct random drug testing, as some other employers do.

“We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us,” King said, “but the issue of smoking we deem different because there is no dispute whatsoever that there’s a direct correlation between increased health risk and healthcare costs. So what we’re really saying is we’re not willing to underwrite the risks associated with smoking.” [full text]

On the one hand, it seems unreasonable and even unethical to dismiss an employee from their job on the basis of activities that occur outside the workplace and have little if any direct bearing on the job. For an employer to have such influence and control is not only intrusive but also dangerous, as it opens the door to all manner of potential abuses and infringements. Furthermore, it demeans employees and, in effect, accords them the status of chattel.

On the other hand, when employers are expected to bear the brunt of the cost of health insurance coverage “an expense that has increased dramatically over the years” it would seem fiscally irresponsible and even unethical to simply ignore the activities of one’s employees that harm their health and harm the bottom line. Presumably, if an employee didn’t care to wear safety goggles or gloves or some other sort of protection on the job, his employer would not stand by and permit such. Is the issue of cigarette smoking so much different?

Where does one draw the line between an individual’s right to privacy and self-determination and an employer’s right to operate their business and limit expenses? What is fair and just? It remains to be seen.

Saturn to Produce Plug-in Hybrids

Get ready for a new version of the Saturn VUE which will feature a hybrid system that is plugged-in to be charged, and which will be able to get upwards of 100 miles per gallon. From the San Jose Mercury:

LOS ANGELES – General Motors became the first automaker to commit to producing plug-in hybrids Wednesday, as Chairman and Chief Executive Rick Wagoner pledged his company would make the high-mileage gas-electric vehicles.

But he didn’t commit GM to a specific timetable. `It’s pretty clear it will take several years,” he said in a speech that opened the 2007 Los Angeles Auto Show.

Tom Libby, senior director of industry analysis for researcher J.D. Power and Associates, called GM’s action “laudable,” but he noted that Wagoner had “not made that many commitments.”

What GM did say is that its first plug-in hybrid will be based on the 2008 Saturn Vue, a redesigned crossover-utility vehicle that goes on sale next year. Eventually, the Vue will be sold in three hybrid versions: as the Green Line that used a mild hybrid system, as a vehicle that uses GM’s more efficient two-mode hybrid system, and as the plug-in hybrid.

A hybrid, such as the popular Toyota Prius, uses electric motors and batteries as well as a gasoline engine to achieve fuel-economy gains. A plug-in version would need larger, more sophisticated batteries. It could be charged at home, and would result in “significant” fuel-economy gains, Wagoner said.

Activists, including Felix Kramer in the Bay Area, have been pushing automakers to make plug-in hybrids and have been driving converted Prius models that get the equivalent of 100 mpg or more, they say. [full text]

I am Not a Racist

I once saw one of the pros deal with hecklers. There was a rally at the State House for a gun bill that would have made it illegal to leave loaded guns lying around where kids can get them. Naturally some of the NRA’s finest were protesting the bill. They were standing around jeering Sarah Brady, wife of former Press Secretary James Brady who took a bullet in the head when President Ronald Reagan was shot. She gave her speech anyway, and stepped back for the next speaker, Sen. Claiborne Pell, who was at least 110 years old at the time.

He looked at the hecklers and said, “I can make a lot more noise with this microphone than you can by shouting.�

This was true. Also, the organizers had the foresight to invite a gospel choir to do the music, and the choir could drown out anything.

Speaking in public is risky, and you have to be crazy to do stand-up comedy. But there is a long tradition of back and forth with the audience. Here’s an example from

Gautama Buddha’s preaching was interrupted one day by a man unleashing a flurry of abusive invective. Calmly waiting for his critic to finish, Buddha asked: “If a man offered a gift to another but the gift was declined, to whom would the gift belong?” “To the one who offered it,” the man replied. “Then,” Buddha declared, “I decline to accept your abuse and request that you keep it for yourself.”

So Michael Richards can draw from a great tradition of dealing with insults by using wit, instead of offending everyone by spewing intemperate language. But he said something interesting during his tirade, he said “It shocks you…it shocks you what lays buried.â€?

He was on to something there, but now he is on tv telling people that he is not a racist. White people are always saying that, and it doesn’t really make sense. I think they mean that they don’t believe that racial prejudice is okay, that it’s immoral and they want no part in supporting it. But you can’t live in our society, no matter what color you are, without absorbing racism. That’s why the word ‘nigger’ is still obscene. It won’t lose its sting by being on a book cover or a t-shirt or being said every ten seconds by musicians. We are a long, long way from dismantling racism in our art, politics and institutions, and even when we get there, the word will float around for a long time like a hungry ghost looking to suck energy.

One hot day I was driving through — well we don’t call them projects anymore, so let’s say Hartford Estates. Music was blaring out an open door, lots of swear words, and that word over and over. I wondered who was playing it, what color they were, and how their neighbors felt. It was not a picture of empowerment. Most of the people living there are poor and struggling to make it up the most slippery and treacherous rungs of the ladder, some are too sick in body or mind to hold a job, and a few have found ways to make money outside the law to the detriment of the whole community. And children, beautiful American children are growing up there. They hang out at the community center, they go to the school. They shouldn’t have to listen to songs like that.

One of the most encouraging responses to all this has been a call from Black performers to stop using the word. You can’t take the stigma out of that word when so much of the toxic baggage of slavery is still dragging along behind us. We need new poets and better words if we’re going to find a way out of the old prejudices that make White people stupid and Black people tired. What lays buried in Michael Richards lays buried in us all, and we need more creative responses to these revelations than “I’m not prejudiced.�

However, if you don’t want to do the heavy lifting to turn over that flat rock to see what lays beneath, there is a Black woman who can help you fast. Michael Richards, and anyone else who has $1500, can fill out an application at For that reasonable fee, Damali Ayo, a well-known Black person will vouch that you’re not a racist. Perhaps for a negotiable fee she will appear with Mr. Richards on television. It would be a good way to put his situation out of its misery, let us all have a good laugh, and then get back to fighting the good fight.

Open Thread on the Cranston Mayor’s Race

Speedway Ray has requested an open thread to discuss the Cranston’s Mayor’s race, and I am happy to oblige. For those who don’t know, we had an exciting “hanging chads” type situation here where the Democrat, Michael Napolitano, was ahead by just 71 votes. There were over 500 ballots that did not register a vote for Mayor, and Allan Fung, the Republican candidate, wanted to be able to view those ballots during the recount to determine if there was sufficient evidence of the voter’s intent. He filed a lawsuit and the judge decreed that the uncounted ballots needed to be photocopied and set aside, but did not give permission for the Fung campaign to view the ballots.

As of yesterday, Fung conceded victory to Napolitano. So the excitement is apparently over.

But before this election is relegated to history, I think there are a few things to be learned in the name of progress and democracy. Geoff Schoos, who is now writing a column for the Cranston Herald, made some excellent points. Most significantly:

…There are approximately 500 ballots that did not register a vote in the mayoral race. These so-called undervotes, if manually reviewed, could impact the results of the race. The board has resisted this manual review of 500 pieces of paper yet is more than willing to oversee the manual insertion of 34,000 pieces of paper into a machine.

The reasons given by the board are that the manual review of 500 questionable ballots will “confuse� the process, there is no policy to review ballots rejected by the voting machine, and manually reviewing ballots would throw “the objective electronic system [of tabulating ballots] down the tubes.� This is truly “Through the Looking Glass� stuff where the process is being run by the Mad Hatter.

Let’s look at these assertions. Raymond Marcaccio, attorney for the board, argues that the “electronic system� is virtually flawless but numerous studies have shown an “electronic system� can be tampered with and sometimes even malfunction. That’s why we have paper ballots – as a backup.

Mr. Marcaccio has argued that photocopying and setting aside the 500 questionable ballots would “increase the chances of human error.� Huh? Will there be no witnesses or procedures overseeing the complicated and technical process of operating a Xerox machine? This argument doesn’t even pass the laugh test.

Mr. Kando, the board’s executive director, has stated that the board has no policies to manually review ballots that do not register with the voting machine. Well, whose fault is that? There is a procedure in place for the manual examination of absentee ballots. Why not adopt that procedure in this instance?

The Rhode Island Board of Elections is more concerned with process than results. The board is willing to exclude 500 votes that can impact the election for the sake of administrative expediency. This potentially disenfranchises voters who faithfully cast their ballots.

In 1981, Rhode Island Supreme Court Justice Kelleher wrote in Buonanno v. DiStephano: “The overriding purpose of the election laws is to give effect to the voter’s choice. Each valid vote should be counted.� The justice rejected any assertion that investigations into an election should be avoided merely to uphold the election’s results.

Instead of coming up with reasons why votes can’t or shouldn’t be counted, the board should be feverishly working to identify valid votes to ensure that each is accurately counted. There’s nothing much at stake here – just the foundation of our democracy and the legitimacy of government.

While we were visiting family in Michigan, I had a discussion with one of my brothers-in-law, who serves on his local election board. They recently had a situation where a number of votes were counted as over-votes by their machines. In reviewing these ballots, they discovered that the pen connecting the line for a different vote on the back of the ballot had been pressed extra hard on these ballots and had shown through on the front side of the ballot, right between the other two lines for voting on another race.

A problem as simple as this could be affecting the 500 ballots in Cranston’s election, but we may never know because the Board of Elections refused to consider these ballots. (UPDATE: This article in the Cranston Herald indicates that all ballots were given a “cursory” review by both parties and thus the Fung campaign was able to determine that they were unlikely to pick up sufficient votes from the rejected ballots. So there was at least an unofficial process which allowed for addressing this issue.)

It seems to me that it is time to come up with some specific procedures for dealing with ballots not counted by the machines, to ensure that we are not throwing out votes because of technical difficulties.

No Child Left Behind is just Asinine

What happens when ridiculous mandates are made more ridiculous? Believe it or not:

No Child Left [with a Fat] Behind?

by Pierre O’Dee

TEXAS — In the Fick-Tishes Regional School District, teachers and administrators take physical education — or “robust exercise,â€? as they like to call it — quite seriously. “It’s one of the four R’s here,â€? Superintendent of Schools Richard Tater proudly declared.

On Tuesday, the school district was rewarded for its devotion to robust exercise with a visit from U.S. Secretary of Education Margaret Spellings. In the packed gymnasium at Fick-Tishes Regional High School, the Secretary presented Tater with a plaque for “robust achievement in physical education and exemplary standards of fitness.�

Spellings then unveiled a “modest proposal� to broaden the requirements of the No Child Left Behind Act to include physical education, beginning in 2007. “Our schools need to educate the whole child,� she asserted.

“It is not enough to demand proficiency in traditional academic subjects such as reading and math. Children who are fit in mind alone are not fit. Our schools can do a much better job of ensuring that students are successful in every realm. Intellectual achievement and physical fitness are not mutually exclusive.�

Spellings cited Fick-Tishes schools as “a perfect example of how schools can attain excellence across the curriculum,� a remark that elicited a loud ovation. She commended the crowd for understanding “the need to invest in the future� and then noted that “the students of today are the soldiers, astronauts, and firefighters of tomorrow.�

Later, Spellings acknowledged the “often difficult and demanding job� schools have, but she insisted, “if President Bush, who has the toughest job of all, can maintain a commitment to physical fitness, then there is no reason our schools cannot.�

The new provisions of NCLB are slated for implementation on October 1, 2007. They include specific standards for what every child should be able to physically achieve, based on their age and gender. Schools will be expected to annually assess student proficiency in several fitness areas, with emphasis on (1) aerobic capacity, (2) body composition, and (3) muscle strength, endurance, and flexibility.

For middle and high school students, one assessment measure will be the one-mile run, a task that a 14-year-old boy would be expected to complete in 8 minutes or less. A girl of the same age would be expected to run that distance in 10 minutes or less.

Critics of NCLB say that expanding the reach of the controversial law to include physical education puts an unfair burden upon schools that are already overwhelmed and underfunded. “It’s another example of the federal government asking schools to do more for less,� said Eileen Leftwich, the executive director of No School Left Behind. “It’s unreasonable to place added demands on schools without providing the funding to back it up.�

Another group opposing the new requirements is TAUghT, Teachers Against Unfair Testing. The grassroots organization contends that an overemphasis on testing unduly narrows the definition of proficiency and makes for a less rich and less diverse learning experience. “It’s a cruel joke,� said Eduardo Cater, a spokesperson for TAUghT. “But we’re not amused. Children are more than the sum of their test scores, and teaching is more than testing.�

Cater took particular exception to the proposed physical education requirements. “It’s not a level playing field,� he argued. “Some kids are naturally slower than others or have disabilities that hinder their proficiency. Other kids are slowed down by the baggage they carry from home. Or they just got a late start. You can’t expect these sorts of kids to perform as well as their less encumbered peers.�

With a shake of his head, Cater then added, “there are so many factors and circumstances over which schools have no control. How is it fair to blame us when students don’t measure up as a result? It’s a setup for failure.�

The Secretary of Education bristled at such criticism. “Failure is simply not an option,� she responded. “These naysayers would do well to stop finding reasons to fail and start finding ways to succeed.� Spellings then gestured at the now empty gymnasium. “They could learn a thing or two from Fick-Tishes schools.�

NOTE: As you may very well have surmised, the above news article is fictitious (Fick-Tishes) and was written to satirize the many flaws of the No Child Left Behind Act. For more serious reading on the subject, I refer you to the following:

• Those Who Pass Classes But Fail Tests Cry Foul (Washington Post)

• Flawed No Child Left Behind Discourages Teachers (FOX News)

• What It Takes to Make a Student (New York Times)

• All That Is Left Behind (

DEM Rejects Concrete Plant Application

There are a few steps in the right direction happening for the Stop the Concrete Plant movement in Cranston — the Department of Environmental Management has rejected the concrete plant’s permit to build and the City Council has passed an ordinance giving them the power to block permits for cement plants. From the Projo:

CRANSTON — Ignoring objections from Mayor Stephen P. Laffey and the city solicitor, the City Council last night adopted an ordinance giving itself the power to overrule the Building Department if it issues a certificate of occupancy for any asphalt, cement or concrete plant the council opposes.

The measure was endorsed by the Ordinance Committee on Nov. 16 following a long debate over whether the council has the legal authority to intervene in the issuance of a certificate of occupancy. Last night, the ordinance was approved by the full council, in an 8-to-1 vote, only minutes after it was introduced.

“We have the right,� pronounced council President Aram G. Garabedian.

Earlier this year the council prohibited construction of any new plants that manufacture these materials, so the broad policy approved last night actually affects a single project: a concrete-batching facility that Cullion Concrete Corp. hopes to operate on Marine Drive.

The Building Department approved that project in March, setting off a tireless campaign by residents and council members to reverse the decision or identify other ways to block construction. The plant is 40 percent complete, but construction was halted pending the resolution of a challenge to the building permit before the Zoning Board of Review.

Cullion recently sued the city for $1 million, arguing that the council has improperly interfered in the Building Department’s operations. That lawsuit cited the potential passage of the ordinance approved last night as an example of council misconduct.

Robert D. Murray, a lawyer for Cullion, suggested last night that the council’s actions had strengthened the lawsuit.

“I don’t think it’s the last word on it,� Murray said following the vote.

Through a spokeswoman, Laffey declined to comment on the ordinance, citing the litigation. But his top ally on the council, Republican Allan W. Fung, renewed his own objections before casting the sole dissenting vote.

“I’m opposed to having that concrete-batching facility at this location,� said Fung, a lawyer and former prosecutor in the state attorney general’s office, “but we’re exceeding our authority in the permitting area.�

The ordinance was not the only setback for Cullion yesterday. The state Department of Environmental Management announced that it had rejected the company’s request to modify a permit already granted to allow construction of the concrete-batching plant.

In a letter, the state’s chief of ground-water and wetlands protection, Russell J. Chateauneuf, advised that the company submit a new application – a process Murray said the company had already begun.

Paula B. McFarland, the council vice president, praised the DEM decision, saying the proposed facility threatens the nearby Pawtuxet River, necessitating advanced systems for filtration and storm run-off management. “You’re dealing with wildlife and our environment,� she said.

Greener Suburbs in Washington State

This article from Amy Roe of provides a refreshing look at an organization attempting to promote building with “greener” materials so that our homes do not add to the environmental dangers within our midst. From the article:

With their much-maligned sprawl and super-sized tract homes, the suburbs are hardly considered the home of environmentalism.

One of King County’s fastest-growing suburban cities is planning to change that by building homes so extremely green that they don’t just reduce net energy consumption, they eliminate it altogether.

The city of Issaquah is seeking a $420,000 grant from the state Department of Ecology to design and promote a plan for five to 10 “zero energy� townhomes or condos that each year would generate roughly as much energy as they consume. They would also be carbon neutral, meaning they would not add carbon dioxide, a greenhouse gas linked to global warming, to the atmosphere, and would be built from non-toxic and renewable materials, improving air quality for the people who build the houses and live in them while lessening their impact on the environment.

“We felt that there was really a need to demonstrate the leading edge,� says David Fujimoto, resource conservation office manager for the city of Issaquah.

After developing a plan for the units, city planners hope to persuade a builder to construct them. The homes would be put up for sale but would also function as a presentation center, offering guided tours led by docents, workshops, a Web site, and audio tours like those found in museums.

“It kind of ends up being a living classroom,� Fujimoto says.

Fujimoto says Issaquah wants to demonstrate to risk-averse home builders that there’s a market for this type of housing.

Multifamily homes account for 49 percent of all homes in Issaquah, and planners expect that balance to tip further in favor of attached housing as single-family sites become more scarce and housing prices continue to drive demand for affordable homes.

“As this area continues to develop more, and in some cases housing becomes more dense, this is the kind of home people are going to be looking at,� Fujimoto said.

Issaquah is still awaiting word on the grant. Fujimoto said the city still intends to pursue the project.

Green is a growing niche in the booming real estate market. Built Green, a nonprofit arm of the Master Builders Association of King County, currently certifies about 14 percent of all new homes in King County as one of five levels of environmentally friendly construction, Executive Director Aaron Adelstein says. By 2010, he expects 30 percent of all new homes in King County to carry the certification. [full text]