Wednesday, November 22, 2017

 “Your time is limited, so don’t waste it living someone else’s life. Don’t be trapped living with the results of other people’s thinking. Don’t let the noise of other’s opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition.”

“Be yourself. Love yourself. Show others that you love them. And live your life to the fullest every single day.”
- Kim O’Neill

Tuesday, June 13, 2017

The Systematic Starvation of Those Who Do Good

Despite the importance of human services and other nonprofits to employees and those they serve, many nonprofit workers do not earn a living wage. We can do better.

By Jeremy Kohomban & David Collins 

See Original Article

I am quoting this article here as a person who works for a non-profit, community service agency, who makes barely above minimum wage (in spite of having a number of advanced degrees) and who has paid over $100,000. thus far to fight absurd, frivolous and abusive lawsuits brought against me by a cult.

Late last year, New York State Comptroller Thomas P. DiNapoli reported that nonprofits in New York employ nearly 1.3 million people, representing more than 18 percent of all private employment in the state. In New York City alone, human service organizations—those focused on the overall quality of life of local populations, and often addressing the most economically intractable and politically unappealing problemsemploy more than 200,000 people. Yet despite the importance of these institutions to employees and the people they serve, many nonprofit workers do not earn a living wage.

Across the United States, nonprofits struggle to pay competitive wages, especially in the human services sector. New York nonprofits have the third-highest prevalence of low wages in the private sector, behind food service and retail. This is in spite of the fact that its human services workforce is highly skilled and highly educated—two-thirds of workers have some college education, and close to half hold bachelor’s degrees or higher. One factor in the widespread acceptance of these low wages may be that, across the state, 82 percent of these workers are women, and 50 percent are people of color. Both of these groups typically earn less than their counterparts who are white, male, or both. Both women and people of color also tend to come into our workforce with higher levels of student debt, making low pay all the more burdensome.  

The negative effects of poor pay are wide-ranging and institutionalized, and they pose an existential threat to the nonprofit sector as it currently exists. Following the sudden bankruptcy of Federation Employment and Guidance Service (FEGS) in 2014—an 81-year-old, $250 million human services nonprofit in New York City—the Human Services Council’s Commission on Nonprofit Closures reported that the systematic underfunding of nonprofits has led to “salaries so low that many nonprofit employees depend on safety net programs, such as food stamps and Medicaid. It also results in inadequate investment to keep facilities safe and in good repair.” Ann Goggins Gregory & Don Howard describe this underfunding as a “starvation cycle,” where nonprofits settle into a “low pay, make do, and do without” culture.

This dynamic is bad for everyone—for children and families, for communities, and certainly for employees. It is also frustrating for public agencies charged with achieving results via contracts with the nonprofit sector and for the taxpayers who foot the bill.

So how did we get here?

The approach to poverty in American politics generally—and in public child welfare specifically—has always been influenced by the widespread understanding of poverty as primarily a moral and personal failing, rather than a structural issue. Child and family poverty, and the policy levers pulled in response to it, have also been marked by significant racial inequity. Throughout its history and up to the present day, the United States (to a greater extent than other developed countries) places strict means testing on its safety net, requiring that families demonstrate great need prior to receiving assistance. We must understand strict means testing as a policy strategy, then, within this politically and morally charged historical context.

This dynamic provides insight into the old adage (widely attributed to the civil servant and Great Society architect Wilbur J. Cohen) that “a program for the poor is just a poor program.” The efficacy of means testing as a policy approach is debatable, but the record is nuanced, and entangled with a variety of demographic and economic factors.  Nevertheless, case studies dating from the 19th century to the present day—including the institutional failures of the poorhouse movement, the rise and fall of mothers’ pensions in the early 20th century, and, more recently, the ferocious backlash against many War on Poverty programs—demonstrate how this segregation of programs for the very needy creates negative stereotypes and connotations. Programs designed (or perceived to be designed) exclusively for poor or marginalized populations tend to be politically vulnerable and viewed with scorn, and tend to convey this scorn and stigma to recipients through their resources, administrative structures, and requirements.

A 2006 paper by Jennifer Stuber and Mark Schlessinger showed that the stigma associated with means tested programs may also disproportionately impact people who are members of racial minorities. One of the reasons we see such disregard for the sustainability of the nonprofit sector—which in many places is the primary venue for poor Americans to receive assistance—is the trickle-down of these pejorative attitudes to our own workforce. The result is a stigma around market-rate compensation for personnel at all levels of nonprofit and charity organizations, as noted in recent articles chronicling the high turnover at leading nonprofits in Chicago and elsewhere.

In New York City, as in other places, this dynamic is currently exacerbated by a wide gap in the treatment of public sector employees and their nonprofit counterparts. While the city has rightfully taken steps to increase compensation for its own employees working in challenging front-line jobs, it has neglected to do the same with its nonprofit partners, which compose a much larger percentage of the front-line workforce. Some community-based service contracts in New York City have not seen a reasonable rate increase in a decade, even as costs have risen steadily across the board.

In a famous 2006 comparison of the labor practices of Sam’s Club and Costco, management professor Wayne Cascio demonstrated how better pay and more generous benefits in the retail sector could actually improve the bottom line by reducing turnover and supporting improved productivity. Readers recognized that the Costco model was good for everyone—the organization, workers, and consumers. Why would we not apply the same thinking to our sector?

Breaking this cycle is a challenge, but we must face it. Public and private funders must send the message that living wages for workers in the nonprofit and human services sector are a priority—particularly when state and local budgets are stretched thin, there is an emphasis on cost containment in public contracts, and individual agencies do not have the leverage to push back. Similarly, foundations and private donors often focus on efficiency and cost-per-outcome when making awards. Neither of these perspectives are wrong; human services agencies should focus on achieving measurable outcomes, and public agency administrators have a responsibility to tax payers to spend their dollars wisely. However, we hope funders also keep in mind the high cost of low wages: systematic devaluation of the nonprofit employee! Fiscal responsibility and efficiency need not be synonymous with poverty wages.

To this end, we applaud the Ford Foundation’s willingness to challenge what it calls “the overhead fiction,” where “foundations, governments, and donors force nonprofits to submit proposals that do not include the actual costs of the projects.” The foundation commits to providing 20 percent in overhead going forward—an amount we agree fully funds the cost of indirect operations.

Some public and private funders are also beginning to deploy performance-based funding, social impact bonds, capitated rates, or other financing models. Some of these approaches show promise, and we try to embrace them whenever possible. But it can be difficult for many nonprofits to assume the level of risk inherent in these contracts when finances and administrative bandwidth are already stretched to the limit. We believe that returning the sector to a baseline of financial health is a necessary first step to reap the benefits of these new funding models, and that outcome measures must be designed with client and community priorities in mind, not just bottom-line savings.

We hope to see much more progress in this area. Ultimately, the “low pay, make do, and do without” culture sends a message to the children and adults the nonprofit sector serves. What does the system say about your worth if the person helping you is paid so little they need public assistance to feed their own family?


We can do better. We must do better.




Thursday, April 27, 2017

Owning our story can be hard but not nearly as difficult as spending our lives running from it. Embracing our vulnerabilities is risky but not nearly as dangerous as giving up on love, belonging and joy - the experiences that make us the most vulnerable. Only when we are brave enough to explore the darkness will we discover the infinite power of our light.

The Gifts of Imperfection, Brene Brown

Monday, April 10, 2017

Opposition Brief for Defendant-Respondent Putnam County Clerk's Index # 986-12

JOSEPH STILWELL,
Index No. 986-2012
Plaintiff

-against-                                              

BETTE FRANK LEAHY a/k/a DEFENSE AGAINST
EVIL a/k/a ESOTERIC FREEDOM a/k/a HENRY
W. a/k/a ROBIN HOOD, et al,

Defendants.

PRELIMINARY STATEMENT
Cults do not like it when members leave.  They like it even less when an AWOL member publicly criticizes the practices that expose the cult's psychic tyranny and that have prompted the escape. 
Respondent Bette Leahy escaped from the cult known variously to its members as, inter alia, "Odyssey Study Group, "school" and "the work."  See https://www.culteducation.com/group/1190-odyssey-study-group-osg-fourth-way-school/20415-a-history-and-analysis-of-the-sharon-gans-group-also-known-as-the-work.html
The leader – the guru – of the cult Leahy fled is Appellant Sharon Gans.  A handful of Leahy's experiences as a member of the Gans cult are recounted in her affidavit submitted below on the motions to quash at issue on this appeal.  See R. 65-74.
Like others who had left Gans – and who are named as co-defendants in the underlying action – Leahy posted comments, opinions and statements of fact about Gans and various cult members in internet blogs.  Those postings led, in fairly rapid succession, to five separate lawsuits filed against Leahy by active cult members in five separate New York counties.  None of the plaintiffs was Gans – who followed the cult litigation playbook by remaining behind the curtain.  Four of the five suits have been dismissed.  Only this frivolous defamation action, by wealthy cult member and publicly outspoken financial investor and money manager Joseph Stilwell, remains pending. 
One of the dismissed suits was filed by cult member Conrad Fischer, who resurrects himself here as Gans's "treating physician" and opines that she is far too old, far too sick, far too fragile, to withstand the rigors of a deposition.  Apparently smelling an odiferous rat, the court below exercised its discretion and discounted what it sensed – logically and appropriately – was a sham affidavit.  So, too, should this Court. 
Appellant takes 33 pages to assert the same handful of "abuse of discretion" arguments over and over and over again, as if repeating them makes them more cogent:
•that Gans is too old, sick and fragile;
•that Gans – the financing of whose luxurious apartment at New York's Plaza Hotel is the subject of Stilwell's defamation claims – knows nothing about how her residence was purchased and possesses no documents about the purchase;
•that it is Leahy – rather than Gans and her five suit-filing followers – who is engaged in a vendetta borne of "animus";
•that Leahy "admitted" her sole intention in seeking Gans's deposition was to harass her and to force Stilwell to withdraw his complaint – although the record is clear that the simple and reasonable prediction Gans would instruct Stilwell to do so was made by Leahy's counsel, who has spent more than a decade litigating against cults;
•that notwithstanding the Court of Appeals 2014 decision in Kapon v. Koch, 23 N.Y.3d, 32 (2014), the court below should have ordered Leahy to submit written interrogatories to Gans or to rely on testimony from Stilwell – whose position about the financing of Gans's apartment is implicit in his complaint – rather than compel the deposition of the only other person with first-hand knowledge of the facts;
•that instead of limiting the documents subject to subpoena, the court below authorized a “fishing expedition” – a cliché Appellant typed at least a dozen times – notwithstanding that Gans claims she has no documents that could be “fished,” and notwithstanding her failure, twice, to fulfill her obligation to demonstrate the “utter irrelevance” of those documents and instead to suggest that the obligation to make this determination fell on the court below;
•that Leahy has not produced “a scintilla of evidence” to support her assertions about Gans, Stilwell and Gans’s other followers, notwithstanding the sworn statements in Leahy’s Affidavit and exhibits (R. 65-74).
None of those challenges to the basis upon which the court below denied Gans’s motion to quash suffice to establish an abuse of discretion.  The order appealed from should be affirmed. 
QUESTIONS PRESENTED
Did the court below abuse its discretion in denying a motion to quash the subpoena:
·      When it found that “the Subpoena adequately provides notice of the reasons and circumstances that the information sought is required (R.3);
·      When it found that Gans had failed to “demonstrate[e] or actually stat[e] how and why this discovery is utterly irrelevant” and instead found “based upon a review of the Subpoena, the motion papers including exhibits, and the underlying court documents . . . that the requested information is relevant” (R.4);
·       When its reference to review of “the motion papers including exhibits, and the underlying court documents” (R.4) implicitly acknowledged it had made a reasonable credibility determination and rejected Gans’s and her cult-member “treating physician’s” claims about her inability to testify due to ill health.
STATEMENT OF FACTS
Leahy notes at the outset that Appellant’s “Statement of Facts” is hardly that.  Instead, along with references to the record on appeal, it inserts largely irrelevant procedural history and argument.  It is peppered with alleged and often unproven factual assertions outside the record, and with self-serving rhetorical flourishes attacking Leahy (“portraying herself as a crusader,” “self-created speculative theories,” “overwhelming animus,” “vindictive comments,” “incredible claims,” “ulterior motives”).  Although several of Appellant’s facts are unproven and untrue, because they are outside the record and irrelevant to adjudication of this appeal, Leahy will not burden the Court by reciprocally ignoring the boundaries of the record to refute them.
These relevant facts should be considered on this appeal.
·      Leahy was a member of Gans’s cult for over 18 years.  R.65, ¶1.
·      Stilwell was also a member, and remains a member of Gans’s “inner circle.”  R.65-66, ¶2; R.67, ¶7.
·      Leahy gave approximately $246,000 to the cult during the years of her membership.  R.66, ¶¶4, 9.
·      As the cult’s leader, Gans “authority is unquestioned and omnipotent,” and she issues orders and instructions to her followers.  R.65, ¶1; R. 67, ¶6.
·      Leahy was sued by five cult members, including Conrad Fischer (R. 67-68, ¶7), whose “medical opinion” was submitted below to assert that it is “unbearable” for Gans to engage in even routine activities, and she could not bear the psychological and emotional strain of testifying.  R. 84.
·      Gans has a history of using medical excuses to avoid providing testimony.  R. 70, ¶14.
·      Of the five remaining claims asserted by Stilwell against Leahy, three relate to Stilwell’s role in acquisition of Gans’s apartment.  R. 81. ¶8.[1]
·      Leahy has produced documents establishing that Gans’s apartment is owned by an LLC at Stilwell’s address (R. 69, ¶12; R.72-74).  Appellant’s June 1, 2016 affidavit for the first time admits that Gans and Stilwell are partners in the LLC.  R.107, ¶2.
·      Leahy’s published comments alleged to be defamatory claim that “Joe [Stilwell] either laundered the money for her [Gans] and funneled it through a ‘corporation’ to make it legal or he paid for it outright.”  R. 69, ¶11.  Documents and testimony Leahy seeks from Gans should establish the substantial truth of that statement.  R. 25, Requests 1, 2, 4, 5, 6.  One document request in the subpoena should establish Gans’s role in orchestrating Stilwell’s lawsuit, and those brought by four other cult members.  R. 25, Request 3.  That is an appropriate request to explore, inter alia, the basis for a potential claim of frivolous litigation, and the bona fides of Stilwell’s assertion of damage to reputation.
·      The court below found that “the Subpoena adequately provides notice of the reasons and circumstances that the information sought is required (R.3).
·      The court below found that Gans had failed to “demonstrate[e] or actually stat[e] how and why this discovery is utterly irrelevant” and instead found “based upon a review of the Subpoena, the motion papers including exhibits, and the underlying court documents . . . that the requested information is relevant” (R.4).
·      The court below had placed Appellant on notice of its obligation to demonstrate “utter irrelevance” when it ruled on the first subpoena addressed to Gans.  R.39.  Further, the court stated pointedly that “Gans’s claim that she . . . has no knowledge of anything related to this lawsuit is purely self-serving.”  Id.  Nevertheless, as noted immediately above, the court held Appellant had repeated her failure to demonstrate irrelevance when she moved to dismiss the second subpoena.  R.4.
·      The court below implicitly acknowledged it had made a reasonable credibility determination and rejected Gans’s claims about her inability to testify due to ill health, and those of Conrad Ficher, her cult-member “treating physician.”  R.4.
·      •Based upon his decade-long experience in litigating against cults, and assessing the credibility of Leahy’s reports of Gans’s total control of her followers, Leahy’s counsel, rather than Leahy, predicted that an order requiring Gans to testify will end Stilwell’s lawsuit, “because Gans will order Stilwell to withdraw it.”  R. 48-49, ¶19.  Although Appellant spews the charge repeatedly, Leahy neither made any “admission of improper motivations” nor sought to depose Gans for “personal retribution,” from “visceral hatred,” “admitted hatred,” or to “blackmail” her (see, e.g., Appellant’s Brief (“App. Br.”) at 2, 3, 11, 14-15, 25, 26, 33).  Leahy seeks to depose Gans as a crucial witness to the merits of Stilwell’s defamation claims, and to explore Gans’s role in commencing and prosecuting the several suits brought against Leahy for exposing facts Gans wants to keep secret.  The subpoena’s examination topics and document requests are tailored to those issues.  R.22, 25-26.
·      Leahy did not “refuse” to depose Stilwell.  She instead sought to exercise her legal right to depose Gans first, and speculated that doing so might obviate the need to depose Stilwell.  R.47, ¶15.  From the outset, Leahy has made clear her intention to position this case for summary judgment at the earliest opportunity.  Counsel’s analysis of the outstanding claims against Leahy (see R.81), raises the prospect that nothing more than Gans’s testimony will be needed.  Gans and Stilwell have done everything in their power to postpone that day and make this litigation as expensive for Leahy as possible – including by filing this appeal.
·      Although Appellant’s brief repeatedly assures the Court that Gans has no responsive documents, Gans’s own sworn statements reveal that she has never conducted a suitable, comprehensive search, “do[es] not know” whether she possesses certain specific documents, “would not” have others to her knowledge, and thinks it “unlikely” she has any communications between her and Stilwell relating to the purchase of her apartment.  R.107, ¶3; App. Br. at 13.
·      Appellant’s counsel implicitly admitted to the court below that Gans might have communicated about Leahy, about the other lawsuits against Leahy by Gans’s followers, and with Stilwell about this lawsuit, but claimed, ipse dixit, that such communications “would not be relevant.”  R.15, ¶9.
·      Appellant’s brief repeatedly assures the Court that Stilwell has already produced all documents about this purchase (App. Br. at 13-14; see also R.16, ¶11).  However, as counsel to non-party Gans, Appellant’s counsel is in no position to make such a representation.  Nor is it accurate.  Counsel for Leahy has requested from Stilwell’s counsel copies of improperly redacted documents, and documents referred to in but to this day missing from his production.  And Stilwell has, incredibly, not produced a single communication between him and Gans on any subject.  R.47, ¶14.
·      Leahy, who was previously deposed during a jurisdictional discovery phase of this action, did not “refuse” to submit to the further deposition scheduled under an instruction by the court below.  App. Br. at 4, n.4, 32, n.9.  That instruction paralleled the requirement in the Order under appeal that Gans’s deposition “shall occur on or before June 30, 2016.”  R.9.  When Gans ignored Leahy’s several requests to schedule her deposition, Leahy adjourned her own deposition, advising Gans’s counsel that the deposition would be rescheduled she was “advised of your intentions about scheduling Gans's deposition in accordance with the Court's June 10 Order.”
·      Gans’s affidavits submitted below repetitively contend that she knows and possesses nothing relevant.  Her brief in this Court bootstraps those proclamations to argue that “[w]ild speculation without any basis in reality or a factual predicate of relevance cannot be used to support a request for discovery.”  App. Br. at 13.  But depositions are the typical, time-honored discovery tool for testing the assertions in affidavits.
ARGUMENT
As Appellant recognizes, the standard of review on this appeal looks to whether the court below abused its discretion in denying Gans’s Motion to Quash.  See Matter of Kapon v. Koch, 23 NY 3d 32, 39 (2014).  Appellant lumbers her brief, and this Court, with tens of cases that support unremarkable and wholly irrelevant propositions.  Of the scarce citations that even begin to address relevant issues, none justify a finding that the court below abused its discretion.
Justice DiBella evaluated the submissions on Appellant’s motion and the underlying court documents, and concluded that “Leahy has demonstrated that the requested discovery is material and necessary to her defense.”  R.8.  He was provided with evidence that Gans’s “treating physician” was both a member of her cult and a plaintiff who had also sued Leahy as part of a five-pronged assault intended to silence her.  So he apparently made the entirely common-sense credibility determination that Dr. Fischer’s overheated recitation of Gans’s supposed infirmities did not warrant depriving Leahy of access to a crucial witness. 
Although infrequently stated explicitly in published opinions, courts are routinely called upon to assess the credibility of documents, affidavits and assertions submitted to solicit judicial relief.  See, e.g., Tribeca Equity Partners L.P. v. Savitt, 44 Misc. 3d 1201(A) (N.Y. Civ. Ct. 2014) (holding it was not an abuse of discretion for the court to deny a party's adjournment request upon finding the proffered excuse not credible; determining that a party’s excuse for not appearing before the court was not credible, and that a party’s claimed interpretation of language in a court-ordered subpoena was not credible).
Citing to Kapon v. Koch, supra, the court below rejected Appellant’s several suggestions that Leahy rely upon alternative means of discovery –including by deposing Stilwell – to obtain the information sought by the subpoena.  The court noted Kapon’s holding (23 N.Y.3d at 38) on the requirements of CPLR 3101(a)(4), and concluded that Gans’s testimony was required because “relevant to the prosecution or defense of an action.”  R.4.  All of the cases Appellant cites at App. Br. 24-25 for the proposition that the court below abused its discretion by declining to grant a protective order or to permit written interrogatories in lieu of a deposition were decided before Kapon.
Even were the cases Appellant cites at App. Br. 27 without elaboration – to argue that the court below abused its discretion by failing to address Dr. Fischer’s extravagant claims of risks to Gans’s health – persuasively analogous to the circumstances at bar (and they are not), the court’s decision to discount Fischer’s diagnosis of Gans’s health as inherently suspect was a valid, justifiable and lawful exercise of discretion. 
Having twice failed to demonstrate below the “utter irrelevance” of the testimony and documents sought by the subpoena, Appellant attempts gamely to do so on this appeal, and futilely cites several cases stating the “utter irrelevance” standard.  But even were Appellant’s attempt in this Court untimely to demonstrate abuse of discretion below, nothing has changed.  As Justice DiBella twice found, the testimony and documents sought from Gans are not merely relevant, they are “material and necessary” to Leahy’s defense.  R.8.  Neither case Appellant cites at App. Br. 25-26, Berkowitz v. 29 Woodmere Blvd. Owners’ Inc, 23 N.Y.S.2d 352 (2nd Dept. 2016) nor Reuters Limited v. Dow Jones Telerate, Inc., 662 N.Y.S.2d 450 (1st Dept. 1997) supports a finding here that because the court below declined to “protect” Gans, it abused its discretion.  The court below rejected Appellant’s protests of overbreadth, annoyance, embarrassment and burden.  So, too, should this Court.
Finally, if the Court concludes that further deference to or consideration of Gans’s actual physical condition is warranted, we respectfully suggest it should remand to the court below, to conduct such further proceedings as it may deem appropriate, such as ordering that the deposition be taken at Gans’s bedside or that she submit to a physical examination by a physician appointed by Leahy or by the court.



CONCLUSION
The Order appealed from should be affirmed, with costs.
Dated: March 29, 2017

__________________________
         PETER L. SKOLNIK
         Clark Guldin
         Attorneys at Law
         20 Church Street
         Montclair, New Jersey 07042
         (973) 476-5625
                  And
         242 West 36th Street, 9th floor
         New York, New York 10018

Attorneys for Defendant-Respondent





APPELLATE DIVISION - SECOND DEPARTMENT
CERTIFICATE OF COMPLIANCE


I hereby certify pursuant to 22 NYCRR § 670.10.3(£) that the foregoing appellant's brief was prepared on a computer using Microsoft Word 2016.
Type. A proportionally spaced typeface was used, as follows: Name of typeface:  Times New Roman
         PETER L. SKOLNIK
         Clark Guldin
         Attorneys at Law
         20 Church Street
         Montclair, New Jersey 07042
         (973) 476-5625
                  And
         242 West 36th Street, 9th floor
         New York, New York 10018

Attorneys for Defendant-Responden



[1]           One claim absurdly alleges defamation based on Leahy’s rhetorical hyperbole calling Stilwell a “snake oil salesman.”  Another asserts invasion of privacy based on a wholly unproven and refuted allegation that Leahy revealed “contents of Plaintiff’s confidential divorce agreement.”  R. 81, ¶8.