CP v. BYU-P, BYU-I, & the LDS

Campus Pride vs. BYU-P & BYU-I: News Flash – In Case You Were Unaware, These Schools and Their Sponsoring Institution Favor Traditional Marriage and Enjoin Sex Outside of Such Marriage (In Other Words, in the Eyes of Some, They’re Bigoted)

By Ken K. Gourdin

Now comes word from The Salt Lake Tribune that Campus Pride, a gay activist group, has named Provo, Utah’s Brigham Young University and Rexburg, Idaho’s BYU-Idaho to its worst-of-the-worst list for the schools’ alleged treatment of those who identify as non-heterosexual (or at least, those who identify as not exclusively so). For coverage of the group’s calling out of the schools, see here (last accessed August 29, 2016):

http://www.sltrib.com/home/4291553-155/byu-byu-idaho-named-to-shame-list.

The Tribune quotes, Shane Windmeyer, the group’s executive director, as saying that “If your values and religious belief system include bigotry or discrimination toward any group of people, put it on your admission brochure. Otherwise, Campus Pride will do it for you.”

I’m relieved. Mr. Windmeyer has done an enormous service to such students who might otherwise have considered attending one of the schools sponsored by the Church of Jesus Christ of Latter-day Saints (popularly known as Mormons). After all, the Church’s stance regarding homosexuality is such a closely guarded secret that may never have become known if Mr. Windmeyer and his group hadn’t finally brought that stance out into the open.

But for the courageous action of Mr. Windmeyer and his group, prospective students might’ve enrolled at one of the schools that the group now has blacklisted being blissfully unaware of the stance of the schools and of their sponsoring institution regarding extramarital sex and regarding a central tenet of the faith that only marriage between a man and a woman is ordained of God.

That said, why is it that other institutions sponsored by the Church of Jesus Christ, such as BYU-Hawaii and Salt Lake City’s LDS Business College (along with Southern Virginia University, which, while not directly sponsored by the Church of Jesus Christ espouses the same values as those held by the other schools) have escaped Mr. Windmeyer’s and Campus Pride’s notice?

One hopes that this egregious oversight will be corrected forthwith, lest some poor, unsuspecting student, being blissfully unaware of the schools’ policies and of the stance of their sponsoring institution, ignorantly enroll at BYU-H, at LDSBC, or at SVU.

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On the Alleged Feminization of Christianity

Is God, or is Our Conception of Him (and Her), Too Masculine? Too Feminine? Just Right?

By Ken K. Gourdin

In a thread concerning the alleged feminization of Christianity at Mormon Dialogue and Discussion, I answered the question posed in my headline thus:

Christ is who He is, but He lets different aspects of His Divine personality dominate, depending on what the situation calls for: tender one minute, tough the next. As my buddy and erstwhile poster here, Kevin G, put it in his signature line (paraphrasing/going from memory), “The next time someone asks you, ‘What would Jesus do?,’ remind them that He wasn’t above upending tables and scourging people.” [See Matthew 21:12-17.]

I said this a few weeks ago when a similar subject came up. (They do seem to get recycled an awful lot around here … ) Mormon theology avoids/overcomes/answers the whole, “Is Christ/God too masculine or too feminine?” debate/question: God the Father wouldn’t be God without God the Mother, and God the Mother wouldn’t be God without God the Father. (Go do proxy sealings in the temple: That particular point is driven home very clearly in that ordinance.) I don’t want to turn this into another gay marriage thread (“Why not, Ken? We haven’t had one of those in, like, a whole three seconds. Isn’t it about time for another one?”) but the same points are made in The Family: A Proclamation to the World.  [That Proclamation is available here, and was last accessed August 29, 2016: https://www.lds.org/topics/family-proclamation?lang=eng.] 

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Colorado Cake-Baker Forced to Violate Religious Conscience

Of Gays, and Marriage, and Cakes, and Religious Cake-Bakers: A Compromise That Protects the Rights of All Involved and Enables Us All to Get Along

By Ken K. Gourdin

At National Review, David French reported on the perverse results of a Colorado appellate court which ruled against a Colorado cake baker after an administrative law judge ruled that the baker was required to bake a cake for a gay wedding even though the baker objected on religious grounds. Mr. French’s report can be found here (last accessed August 27, 2016): http://www.nationalreview.com/article/422566/grotesquely-biased-ruling-against-religious-liberty-david-french.

I responded:

Here’s how I would “split the baby” with respect to providing goods or services for a gay wedding. While others in my faith (I am a Latter-day Saint/Mormon) object to providing such goods or services on religious grounds, nothing in my religious tradition mandates that I force people to accept my paradigm; I would be interested in fostering goodwill (and in avoiding ill will) against me, against my business, and against my religion (if it were known); and I would be too practical to lose business in such a case. Thus, I would probably agree to provide such goods or services if I were a business owner (though I might, for example, draw the line at decorating a cake with “gay-themed” items, but big deal: buy your own plastic, gay, bride-and-groom and feel free to place them prominently on the otherwise-nicely-decorated cake’s top tier).

However, I understand the concern of those who feel being forced to provide such goods and services would violate their religious conscience. Thus, I would allow business owners to refuse to provide such goods and services (purportedly for religious reasons). A gay couple then would be free to find a willing provider, and the honest, deeply-held religious convictions of business owners still would be respected. That said, I would still allow a gay couple refused such service to sue, but I would require them to show, by the relevant evidentiary standard (preponderance of the evidence, I would assume), that reasonable efforts to obtain similar goods and services at a similar price were unavailing, and I would limit recovery to the difference between what the refusing business owner would have charged them and what the accepting business owner did charge them, along with such related expenses as travel.

The approach I outline above would cut down really quickly on gay activists attempting to engage in lawfare to pulverize recalcitrant business owners into submission, while still respecting both the honest, deeply-held religious convictions of business owners and, at the same time, recognizing and recompensing the wrong of being denied goods or services on the basis of sexual orientation. The battle lines are clearly drawn: One side cheers, “First Amendment Free Exercise of Religion!” while the other cheers, “Fourteenth Amendment Equal Protection!” But I don’t believe, as the majority which decided Obergefell v. Hodges apparently does, that “Free Exercise of religion” encompasses solely what one does within the walls of one’s own holy place on one’s holy day. And I don’t believe any solution other than the one I have outlined adequately protects one’s right to exercise one’s religion freely, not only on his holy day and within his holy place, but everywhere, and always.

And to those who would argue that the solution I have proposed is a step back to the days of Jim Crow, I would respond that isolated, episodic, de facto discrimination is a far cry from the entrenched, state-sanctioned, systemic, formerly-legally-protected discrimination of the kind that the Fourteenth Amendment now prohibits.

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To Ryan Lochte

An Open Letter to U.S. Olympic Swimmer Ryan Lochte: Lesson(s) Learned?

By Ken K. Gourdin

Dear Mr. Lochte:

As a threshold matter, let’s discuss what you were trying to cover up before being detained for lying to the police while celebrating your Olympic success in Rio. Enough alcohol + almost anyone = stupid. But if you hadn’t lied and had offered to pay for the damage you and/or your inebriated teammates caused, you would have emerged relatively unscathed. Rarely is the crime worse than the attempted cover-up.

I know, it was Rio, and everyone parties (read “drinks, and/or gets drunk”) in Rio. I guess what the U.S. swim team needs is at least one devout, Word-of-Wisdom-observing (and hence alcohol-eschewing) Mormon who can keep everyone out of trouble. (Mormon swimmers, this is a call to action! Your country needs you!)

Now, with that out of the way, on to my real reason for writing. Often, when we travel, we take our assumptions about the criminal justice system – such as being innocent until proven guilty, having a right to legal counsel, having a right to a jury trial in order to curb potential excesses by a judge or by a prosecutor, and so on – with us, and we tend to superimpose them onto whatever system prevails wherever we go.

Bad idea. The nanosecond we touch down on foreign soil, enter the territorial waters of a foreign country, or, arguably, enter a foreign country’s airspace, the rules change, and criminal justice rules or processes we used to take for granted no longer apply. You’ve heard the old saying, “When in Rome, do as the Romans do”? Well, it applies with special force in criminal justice matters.

Permit me a trivial example. I love Mexico and most things Mexican. (Yes, certain parts of the country are dirty and polluted; some are ridden with crime and corruption; but I learned to look deeper.) My love affair started (chastely) in grade school, when, as part of a pilot program, I was pulled out of regular classes for a period of time each day and exposed to Spanish language and Mexico’s culture, Mexican customs, and the country’s way of life.

I remember being fascinated even by mundane things such as vehiculos de la policia (police vehicles – my father spent 43 years in law enforcement) when, on my first visit to Southern California as a young boy, my family and I drove across the border to Tijuana and I saw firsthand many of the things I had been reading and hearing about.

Later on, the love affair deepened, as I received additional exposure to many of the things I had been fascinated by in grade school when I returned to the San Diego area for two years to do volunteer work then minored in Spanish in college after returning, finishing one class short of a double-major.

Yet even after all of this, I’ll never be caught dead driving in Mexico. Why not? Well, it’s true that I’ve had, perhaps, more than my share of fender-benders (and worse) over the years, several of which, I admit, were my fault (though not all of them were). But is being (perhaps) “crash-prone” all there is to it? No.

In Mexico, traffic accidents aren’t necessarily the relatively minor civil matter they’re usually considered in the United States. They’re also considered criminal matters, and if you’re in one, you’d better be prepared to fork over large amounts of cash (and/or had better have more than a casual acquaintance with someone who has connections) in order to avoid the complications of being ensnared in a criminal matter on foreign soil.

Here, you might get away with a simple slap on the wrist and an admonishment to not do it again, even for so serious a matter as lying to the police. Everywhere else, however, it’s their country, their rules, their criminal justice system and their possible complications (including extortion, bribery and corruption, perhaps), which makes it a whole new ballgame.

In any event, even without casting aspersions on any other justice system, you’d better be familiar with the rudiments (at the very least) of how that system operates, and had better know what to expect if you’re made to deal with it. And while this is no guarantee you won’t be innocently ensnared, it’s best to avoid doing things that cause you to become involved with such a system in the first place.”

And, as a parting matter, while it’s best to avoid behaving like the proverbial “ugly American” wherever we go and whatever our reason for going there, this is doubly so if one is representing one’s country, as you and your teammates were. You beat out plenty of swimmers for your spot on the team, at least some of whom would not even dream of misbehaving as you did and who would have been glad to have your spot.

Here’s (hopefully) to lessons learned.

Sincerely yours,

Ken K. Gourdin

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Protection From Being Arrested for DUI

West Jordan, Utah City Councilman Claims “Protection” from Officers Who Arrest Him for DUI

By Ken K. Gourdin

A West Jordan, Utah, city councilman recently was charged with DUI after he returned to the bar where he had become inebriated to retrieve his vehicle after being given a ride home by a West Jordan police officer. As South Jordan, Utah officers who were called to the scene to deal with the conflict of interest attempted to take him into custody, he stated he had “protection” as a member of the city council.

For coverage of the incident, see here, last accessed August 25, 2016: http://www.deseretnews.com/article/865661036/West-Jordan-councilman-pleads-not-guilty-to-leaving-scene-of-accident.html.

Had I been one of the officers who responded to the scene, I would have told him, “Not to worry, Sir. If it’s protection you’re interested in, the place where you’re going is very well protected.”

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Trapped on Government Benefits

Trapped: Unemployed Long-Term, On Government Benefits, With No End in Sight 

By Ken K. Gourdin

Author’s Note: My fiscal and employment situation has improved somewhat when I wrote this circa 2014. In 2015, I secured (alas, short-lived!) employment as a telephone receptionist with Myler Disability in American Fork, Utah. Frankly, my supervisor graduated summa cum laude in nanomicromanagement, with a minor in micromanagement, and I left that job for a customer service position with the Results Companies in Provo, Utah providing services under contract for Lexus. But in a sense, it means I’ve come full-circle.

I left a job answering phones for UPS in 1998 after I decided I didn’t want to do that for the rest of my life; finally bit the bullet after several years of delay and went to law school starting in 2000; graduated from law school literally almost against all odds and after several fits, starts, and missteps (including taking a leave of absence and accepting a job, doing what? Why, answering phones, of course), in 2005; then being denied admission to my would-be chosen profession based largely (if not entirely) on a complicated behavioral health history; and, while I have been exceptionally well treated by my current employer, I now make $0.95 per hour more than I did when I left UPS. It’s not a bad job, and I reiterate that I have been exceptionally well-treated, but it’s not what I envisioned doing after shedding untold blood, sweat, tears, and pounds of flesh (at least figuratively, if not literally) in law school.

______________________________

I hate Paul Krugman.1 Simply seeing his picture or byline on an Op-Ed usually is enough to deter me. At most, I might read the headline. Beyond that, I know what he’s usually going to say: “Conservatism, Conservatives, or [Insert-Conservative’s-Name-Here] is (or are) what’s wrong with America. If we could simply get rid of Conservatives and/or Conservatism, the United States of America automatically would transform overnight into a Nirvana/Utopia.” So the fact that I’m about to quote him here should tell you something.

While I disagree with Krugman that inexorably increasing government spending is the magical panacea that will alleviate our economic woes, his description of the plight faced by the long-term un- and underemployed is spot-on. He says:

It goes without saying that the explosion of long-term unemployment is a tragedy for the unemployed themselves. But it may also be a broader economic disaster.

The key question is whether workers who have been unemployed for a long time eventually come to be seen as unemployable, tainted goods that nobody will buy. This could happen because their work skills atrophy, but a more likely reason is that potential employers assume that something must be wrong with people who can’t find a job, even if the real reason is simply the terrible economy. And there is, unfortunately, growing evidence that the tainting of the long-term unemployed is happening as we speak.2

Krugman goes on to cite a study conducted by two Northeastern University researchers who tested the hypothesis that employers are less likely to hire the long-term unemployed even when their qualifications are better.  The researchers sent out 4,800 fictitious resumes, and found that those who reported being out of work for six months or more got fewer calls back than those who were employed, even when those in the latter group were better qualified than those in the former.3

As I’ve written elsewhere on the blog, an old Chinese proverb says, “Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime.”4 Where I believe Krugman and his like-minded fellows (including President Obama) err is in thinking that the best way to solve the problem is to keep giving away fish.  As I will explain in greater detail below, while I am not against the government giving monetary assistance to the poor, if one’s proposed solution to the problem stops there, eventually the government will run out of fish.  It would be much better to help the poor get their own fish.

There are other dimensions to this problem.  I have received Social Security Disability Income (SSDI) off and on since approximately the year 2000.  [I returned to work full time in 2015, but I am still underemployed, and my income does not match my qualifications.]  In that time, I have received an advanced degree (in 2005) and have become certified as a paralegal by the National Association of Legal Assistants (in 2010).  I would gladly return to the workforce if I were presented with an opportunity for which I am well suited and that matches my education, skills, and interests.

While I once set my sights on becoming a member of the criminal justice system and was hesitant to consider opportunities outside that small qualification and opportunity window, I would be willing to do something I never dreamed of doing during my education, from civil litigation to transactional work, as long as such a position took notice (however slight) of the efforts I have made to make myself marketable in the legal field.  In fact, forget legal support work; I would even perform manual labor if I thought I could last for any length of time in such a position.

In a recent column, syndicated columnist Rich Lowry tells the story of Kentucky disability lawyer Eric C. Conn, who has made more than $3 million a year helping claimants apply for Social Security Disability Income.  Conn’s practice, Lowry says, “specializes in extracting (often dubious) disability benefits for his clients from the United States government, and enriching himself and people around him in the process.”5

I thought that this possible Conn-job was worth a closer look. (To be fair, although I’m tempted to point out that Mr. Conn is aptly named, since I’ve never heard his surname aloud, I don’t know whether the “o” is pronounced like the “o” in “on,” or like the “o” in “cone.”) At any rate, leaving aside the issues of surname pronunciation and of whether someone is aptly named, I decided to investigate Lowry’s assertions further. So I looked up and read a 2011 Wall Street Journal report about Conn and his confederates in the Huntington, W. Va. Office of Disability Adjudication and Review (“ODAR”) by WSJ reporter Damian Paletta6, as well as the staff report from the Senate Committee on Homeland Security and Government Affairs, “How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm.”7

The latter report was issued pursuant to a hearing that was held on October 7, 2013.  To be fair, although Paletta cites the high approval rate of disability appeals among a small number of administrative law judges (ALJs) who hear them7, these sources present little (if any) other evidence that the problems they discuss are widespread or systemic (as the subtitle of the latter report indicates). Even if these problems occurred in only one office, however, that’s bad enough: this “isolated” problem resulted in billions of dollars in benefits being awarded to people who failed adequately to show that they deserve them, but the government, because of due process issues, likely will have a difficult time revisiting (and revising) the decisions to award those benefits.

Still, no advocate, however persuasive, could succeed in winning benefits for his client if no judge were receptive to his arguments that such benefits should be awarded.  (I’ll use the term “claimant representative,” since one need not be an attorney to represent clients [claimants] in proceedings conducted before ALJs in the Social Security Administration.)

And Conn found a particularly receptive listener who was highly sympathetic to his arguments (such as they were) in the person of one particular ALJ at the Huntington ODAR, Judge David B. Daugherty. Judge Daugherty apparently feels that many of the ALJs who hear appeals of disability claims which are denied at lower levels of the SSA are, unlike himself, too tight fisted and should have been more generous, as, according to Paletta, he once reportedly groused to a colleague, “They act like it’s their own damn money we’re giving away.”8

Daugherty is (in his case, was) far from the only ALJ at the SSA who has been generous with the government’s (read, the taxpayers’) money, however.  The WSJ report also notes, “In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.”9

In recent years, there has been a sharp increase in the number of people applying for benefits without a corresponding increase in staff to handle the increased workload. This has led to a backlog of applications for, and increased wait times for decisions regarding, disability benefits. The Committee Staff Report notes:

Once the Senate confirmed [incoming Social Security Administration] Commissioner Michael Astrue, SSA began developing a plan of action, which it made public in September 2007. In short, the plan involved asking employees to do more[, and to do it] faster. The goal was to ensure more cases were heard each year by spending less time on each case.10

The report also notes, however, that the concern of SSA decisionmakers for speed was not matched by a corresponding focus on quality:

At the same time [as SSA implemented the plan for clearing the backlog], however, questions were being raised whether the backlog plan was as successful as it appeared. The plan put enormous pressure on SSA’s components to post big numbers, which they did. In at least some instances investigated by the Committee, though, agency employees appear to have done so by cutting corners and reducing the attention given to each case and issuing questionable decisions.11

Judge Daugherty, especially, essentially was a rubber stamp. The Committee Staff Report notes:

During 2010, the last full fiscal year in which he decided cases, Judge Daugherty was the third most productive ALJ [in the Social Security Administration’s appeals system], deciding 1,375 cases and awarding benefits in 1,371 of them – an approval rate of 99.7 percent. [Footnote omitted.] In 2011, he decided 1,003 cases, awarding benefits 1,001 times. [Footnote omitted. The average approval rate for ALJs agency-wide is approximately 62 percent.]12

Indeed, the concern of would-be-whistleblower employees over questionable methods and decisions was proven well founded by Daugherty himself, who freely admitted cutting corners (not to mention encouraging others to do so).  The Committee’s report noted his response to a fellow ALJ’s concerns over his methods, noting that when this ALJ attempted to raise those concerns with Daugherty, Daugherty told him, “You’re just going to have to learn which corners to cut.”13

One of the corners Daugherty cut was to severely shorten the length of his hearings. Hearings often are scheduled at the ALJ level to provide claimants the opportunity to present evidence that they meet the requirements to receive benefits under federal disability programs. Although such hearings normally last 45 minutes to an hour, Daugherty scheduled so-called “rocket dockets” in which he held up 20 hearings in a day, fifteen minutes per hearing.14

Interestingly, according to the WSJ report, one of the reasons Daugherty proffered for holding “rocket dockets” is because he has dyslexia. For that reason, he said, he preferred to follow a timetable in which he holds many hearings over a few days each month rather than holding a few hearings each day. “Holding hearings within just a few days ‘allows me sufficient time to review and prepare for [them], resulting in full and complete knowledge of the documents in the case prior to hearing,’ he added.”15 Seemingly, it would make more sense that most people, even (and perhaps especially) those who are dyslexic, would suffer from the opposite problem, especially if the facts of many of the cases are similar (as disability claims likely would be). Attempting to review too many cases in too short a time might cause most people to confuse the facts of one case with those of another.

Another of the corners Daugherty cut was that, for the vast majority of claims he considered (and I use that term loosely), he never bothered to hold a hearing at all.  The Committee Staff Report says this about cases without a hearing:

Part of encouraging judges to decide a higher number of cases included allowing ALJs to review cases to determine if they could be decided “on-the-record” (“OTR”) based upon medical evidence in the case file without an ALJ hearing. . . .

[I]t appears this policy was abused in order to decide a higher-than-average volume of cases with a minimal level of effort and scrutiny.16

One of the witnesses who testified before the Homeland Security and Governmental Affairs Committee as to the potential for abuse in the on-the-record process is Judge Debra Bice, who at the time of her testimony was the SSA’s Chief ALJ.  Bice noted two problems with the process.  One is that an ALJ may miss an opportunity to hear crucial evidence if he foregoes the opportunity to hear from a claimant firsthand; and the other is that if an ALJ screens cases and “cherry-picks” (my term) those that are easiest to decide by simply doing so on the record, claimants with more complex cases (who are, many times, most in need of an expeditious decision) are left waiting.17

Another of the corners Daugherty cut was inordinately relying on disability evidence which had been supplied by claimant representatives (especially by Conn).  One form used by ALJs to decide eligibility for disability benefits is called a Residual Functional Capacity (RFC) evaluation.  When a person claiming a physical or mental impairment applies for disability benefits, an evaluator (in the case of a claimed physical disability, a physician; and in the case of a claimed psychological disability, a psychologist or other mental health professional) is supposed to examine the claimant to determine the nature and extent of his disability, and should complete the form accordingly.

Rather than having the evaluator complete the form, Conn did so.  Congressional committee staff discovered that Conn supplied doctors evaluating his clients who claimed physical disabilities with one of fifteen pre-filled, “boilerplate” (my term) versions of the physical RFC form, and he supplied psychologists evaluating his clients who claimed psychological disabilities with one of five-prefilled, boilerplate versions of the physical RFC form. While “because each individual has different abilities and ailments, and the forms require a complex set of data, finding two RFCs exactly alike should have statistically been an extremely rare occurrence,” this happened frequently with Conn’s clients.18

In a letter to the Senate Permanent Subcommittee on Investigations, Conn attorney Pamela Marple attempted to defend Conn’s use of supplemental medical opinions: “In certain cases,” she wrote, “the Conn Law Firm procures a supplemental medical opinion [bold italics in original] in order to advocate for its client and explain why the SSA record supports a favorable decision.”19 But, as we have seen, it was Conn (rather than any of the medical or psychology experts he consulted) who provided the opinion; the expert merely signed the boilerplate form provided by Conn, and it was prepared without regard to any other information (information which may well have conflicted with it) in the SSA record.

Nor were RFC evaluations the only evidence Conn provided to Judge Daugherty.  While preparing the forms included at least the perfunctory involvement of a third party, in many cases, Conn manufactured medical evidence from whole cloth without anyone else’s involvement at all (at least when it came to interpreting the evidence). Conn was a high-volume user of a particular medical imaging clinic.  In an effort to bolster their disability claims, he routinely sent claimants to this establishment for x-rays.  However, rather than allowing the professional staff at the clinic to interpret the x-rays, in the orders he provided to the clinic, Conn emphasized, “WE DO NOT WANT THE FILMS READ BY ANYONE!!!! [Emphasis in original, footnote omitted.]”20 Claimants then would return to Conn’s office with the x-rays, where he used information gleaned from the Internet to write descriptions supposedly interpreting them.

Another way Daugherty cut corners was by inappropriately colluding with claimant representatives, particularly with Conn.  One way the judge colluded with Conn is by telling him what information he needed in order to approve claims.  Each month, Daugherty provided Conn with a list of claimants whose applications he intended to approve, known by personnel in Conn’s office by Daugherty’s first two initials as “DB Lists.”  The “DB Lists” included notations as to what type of evaluation he needed in order to approve the application for benefits.  For example, the list might contain the notation “Physical,” “Mental,” “Either,” “None,” or “Both” by a particular claimant’s name.  Or, the notation next to some names simply said, “Whatever Eric [Conn] wants.”21 Whereupon Conn obligingly provided one of the boilerplate RFC forms previously mentioned.  Daugherty also infringed on the independence of his judicial colleagues by revisiting cases in which they had already denied disability claims.

Nor were RFC evaluations the only documents Conn prepared for others to sign.  Another way Daugherty colluded with Conn is by allowing Conn to draft, in whole or in part, the decisions Daugherty signed.  As one measure used in an effort to clear its backlog of pending claims, the SSA instituted what it calls “Findings Integrated Template” (or “FIT”) decisions, which already included the elements necessary to find that a claimant is disabled and, thus, qualifies for benefits.  The Committee Staff Report indicated that FIT decisions often involved collaboration between judges and claimant representatives, after which the representatives would draft decisions for ALJs using the language the ALJ suggested.22 While it is not uncommon in the legal profession for attorneys to draft documents for judges to sign, and while hearings before ALJs to hear Social Security claims are not adversarial in the traditional sense, any ex parte (only one side heard from) collusion between an attorney and a judge before a judge had heard a matter in court (or, in the case of Social Security claims, at a hearing) would be highly improper. And while other documents, such as warrants and orders, may be drafted by attorneys for judges to sign, it is all but unheard of for an attorney who is not one of the judge’s clerks to draft an opinion for the judge to sign.

In summary, Judge Daugherty cut numerous corners in an effort to appear productive and to “help” the SSA clear its backlog of disability claims in at least the following four ways: Instituting “rocket docket,” perfunctory hearings; deciding thousands of cases on the record without holding hearings at all; inordinately relying on evidence (evidence in which there often was little variation, except for changed names and Social Security numbers—if the evidence wasn’t manufactured outright by Conn, such as the x-ray interpretations) provided by claimant representatives; and inappropriately colluding with claimant representatives in drafting opinions.

In return for Mr. Conn making his job so much easier, Judge Daugherty likewise extended preferential treatment to Mr. Conn, as well, in violation of numerous SSA policies. For example, to prevent allegations of favoritism, the SSA has a strict judicial rotation policy; in order to ensure fairness to applicants, it has a policy that oldest claims are to be heard first; and in order to ensure that applicants are not unduly inconvenienced, it has a policy that claims are to be handled by the office in closest geographical proximity to them. However, all of these policies were violated for Conn.23

In a recent Op-Ed submitted to (but declined for publication by) The Tooele Transcript-Bulletin in Utah, my [then] local semi-weekly newspaper, I recently had this to say about being a recipient of government benefits while also being among the long-term unemployed:

I receive Social Security Disability Income. I recently filled out a form to have my eligibility reviewed, I used a space that was meant to allow me to elaborate on previous answers to request further assistance, instead.

Provided I could secure employment that makes appropriate allowance for my disability,” I wrote, “I would love to work.  But I need assistance reentering the workforce.”

Because it wasn’t responsive to any of the questions on the form, that “answer” was ignored.  Some bureaucrat reviewed my form, saw that I gave all of the “right” answers to the actual questions, and approved me to continue receiving checks.

I completed my professional education in good faith, fully intending to find a job – preferably in my field, but outside it if necessary.  But the authority responsible for licensing the members of that profession denied me the license necessary to practice it.

And even if I settle for something outside of my desired profession, human resources conventional wisdom allegedly is that anyone who has been unemployed for longer than six months need not apply.  (I don’t know what that now-sizeable proportion of the population, which includes me, is supposed to do instead.)

An explanation about the bio that follows this column is in order.  Yes, I am certified as a paralegal by Tulsa, Okla.’s National Association of Legal Assistants.  Unfortunately, I have had difficulty finding work in that field (not to mention in any other).

Probably because no one in Washington is currently running for office, there is little conversation right now about what government might do to facilitate job creation.  (That hasn’t happened since before the 2012 election.)  Apparently, Obama and his team have settled on job creation as a sales pitch.

Whatever we want to do, they apparently have said, we’ll just say that it creates jobs.  For example, giving people public benefits creates jobs; extending the unemployment benefit period creates jobs; and healthcare reform creates jobs.

On the other hand, public benefits (such as food stamps, disability, Medicare, and Medicaid) have exploded under Obama, while the labor force participation rate (the number of people who have, or are seeking, jobs) has plummeted.  If the latter statistic were as high now as it was in 2009, the unemployment rate would be over 11 percent.

If you think such criticism of Obama is unfair, you might be right: the only jobs government can create are government jobs. (Obama has created plenty of those.)  On the other hand, government can do a lot to interfere with private sector job creation, such as enacting difficult new laws and regulations.  (Obama has done plenty of that, as well.)

An old proverb says, “Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime.”  The social welfare approach favored by Obama involves giving that man fish every time he runs out; an insurmountable difficulty is the lack of an inexhaustible source.

I’ll take a job over a check any day.  As much as I appreciate the “help,” President Obama, I’d rather not need it.

Ken K. Gourdin, Tooele, is a certified paralegal.24

And of course, although I did not address this problem in the Op-Ed, there is the issue of my being deemed overqualified.  I’m in a damned-if-I-do, damned-if-I-don’t position: if I do list my law degree on my resume for a position which does not require it, hiring authorities will say I’m overqualified and will throw out my application. (I wish—and I’ve even told people this in a couple of job interviews after it became apparent I wouldn’t get the position—that hiring authorities would let me decide whether I’m “overqualified.”) Conversely, if I don’t list my law degree on my resume for such a position, that leaves a several-year “gap” in my history (which will probably cause hiring authorities to pass me over anyway).

Mr. President, as I said in the foregoing Op-Ed, I very much appreciate your desire to give me all of the government’s fish you can.  But, while I have been through no small degree of trauma—both physical and psychological—in my life, there is nothing as soul-deadening as being among the long-term un- and under-employed while sucking on the government teat with no prospects for change in that state of affairs in sight.

As I also said in the foregoing Op-Ed, however, I’d much rather be working (unlike many of Mr. Conn’s clients, apparently).  Indeed, I’m not sure which fact to be more upset about: the fact that so many people have gotten benefits to which they likely were not entitled, or the fact that I have few (if any) prospects for getting off of those benefits anytime soon, even though I am eligible for them.

END NOTES

1. Please don’t get the wrong idea: I don’t hate him the way I hate cauliflower, or annoying pop-up ads which derail my reason for visiting a particular Web site (particularly if I don’t have the option of clicking somewhere to get rid of them), or (as an ardent Utah Jazz fan) the Los Angeles Lakers, or . . . sin. If Mr. Krugman and I were to avoid politics and economics as topics of discussion, we might even hit it off as dinner or drinking companions (although I’d have ginger ale, thanks). While generally actively avoiding Krugman, I read other people even if I know it’s likely I’ll disagree with them because they might surprise me: at the very least, they’ll make me think. I find Krugman, on the other hand, overwhelmingly predictable, so the fact that I read his work on this occasion should tell you something.
2. Paul Krugman (April 21, 2013), “The Jobless Trap,” The New York Times, accessed on line athttp://www.nytimes.com/2013/04/22/opinion/krugman-the-jobless-trap.html?_r=0 on October 26, 2013.
3. See Id.
4. Ken K. Gourdin (January 5, 2013) “No Matter How Many of His Detractors Were Convinced Otherwise, Governor Romney Sincerely Wanted to Help the Middle Class” (Blog post) last accessed on line at the following address, http://www.greatgourdini.wordpress.com/2013/01/05/romney-wanted-to-help-the-middle-class/, on March 18, 2014.
5. Rich Lowry (October 15, 2013), “Profiting from the welfare state,” Jewish World Review, accessed on line at http://www.jewishworldreview.com/1013/lowry101513.php3#.Umw1Jk3nYqQ on October 26, 2013.
6. Damian Paletta (May 19, 2011) “Disability Claim Judge Has Trouble Saying ‘No’,” The Wall Street Journal, accessed on line at the following address on March 11, 2014: http://www.online.wsj.com/news/articles/SB10001424052748704681904576319163605918524.
7. Committee Staff Report (Hearing held October 7, 2013) “How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm,” Washington, DC: Committee on Homeland Security and Governmental Affairs, United States Senate, accessed on line at the Committee’s Web site at the following address on March 14, 2014: http://www.hsgac.senate.gov, copy also in possession of the author of this post as of that date; hereinafter, “Committee Staff Report.”
8. Paletta, Id.  Parenthetically, I might add two observations to Judge Daugherty regarding this comment: (1) Perhaps if you had acted more as though it were your money, you would have made more responsible decisions and distributed the government’s benefits (aka the taxpayers’ money) more wisely; and (2) You weren’t simply “giving [it] away”—or at least, you shouldn’t have been.
9. Paletta, Id.
10. Committee Staff Report at 11.
11. Id. at 12.
12. Id. at 18.
13. Id.
14. Paletta, Id.; See also Committee Staff Report at 108.
15. Paletta, Id.
16. Committee Staff Report at 16.
17. Committee Staff Report at 17.
18. See Committee Staff Report at 5, 61.
19. Committee Staff Report at 78.
20. Committee Staff Report at 55-56.
21. Committee Staff Report at 36.
22. See Committee Staff Report at 55-56.
23. See Id. at 27-29, 31-33.
24. Ken K. Gourdin (January 13, 2014), “I’ll take a job over a government check any day, but Obama’s not helping,” submitted to (but declined for publication by) The Tooele Transcript-Bulletin (Tooele, Utah), copy in author’s possession as of March 8, 2014.
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Obama Gender Student Facilities Rule

Texas Federal Judge Enjoins Enforcement of Obama Gender Student Facilities Rule

By Ken K. Gourdin

A federal judge in Texas has enjoined enforcement of President Barack Obama’s order mandating that schoolchildren be allowed to use bathrooms and other facilities that are consistent with their gender identity (read, “Today, I feel like a [boy/girl/other]. Tomorrow, I may feel differently, and I should be allowed to use the bathroom I ‘feel’ like using”) rather than with their biological sex.

For coverage of the judge’s order in Salt Lake City’s Deseret News, see here (last accessed August 23, 2016:

http://www.deseretnews.com/article/865660757/Utahns-praise-criticize-ruling-in-Texas-blocking-transgender-bathroom-directive.html

Personally, I cannot imagine how it is that someone who has gender issues – someone who is a boy biologically but “feels like” a girl, or who is a girl biologically but “feels like” a boy – would feel comfortable using facilities that do not correspond to his or her biology. I can’t fathom why someone who is in that position wouldn’t find a single-occupant-at-a-time restroom to be a more acceptable solution.

And I say what I do in the foregoing paragraph as someone who, as a person with a disability and depending on the layout of the building I’m in at the time, has, from time to time, availed himself of the opportunity to use single-occupant, accessible restrooms and has been grateful for that opportunity.

Yes, gender is a complex issue, and yes, people should be treated with respect and dignity regardless of sex, gender, or orientation, but I can’t help feeling that, too often, the way that many propose that we treat those who deal with gender ambiguity and other, similar issues is less about protecting them than it is about using such treatment as a weapon to “stick it” to society at large.

Troy Williams, an official for the gay rights group Equality Utah, is quoted in Salt Lake City’s Deseret News as saying,

The bottom line is that all schoolchildren — straight, gay and transgender — deserve to use the bathroom without fear and harassment. . . . Ultimately, we know that circuit courts and possibly the Supreme Court will bring common sense and human decency back to the issue.”

Let’s be honest: Neither Mr. Williams nor his group cares a whit about the plight of straight, non-gender-conflicted children who might be uncomfortable using a restroom in the presence of someone whose biology doesn’t correspond with their own. If they’re uncomfortable, that’s just too bad: they’re simply going to have to suck it up and get used to it in the name of political correctness.

Let’s hope that no courts adopt Mr. Williams’s approaches to “common sense and human decency” any time soon.

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