I tried to participate in today's CODI meeting, by phone....

I tried to participate in today's CODI meeting, by phone. Unfortunately, the ADA Coordinator's office and the County Attorney's Office set up a phone system arguably designed to fail.

The phone buzzed. And buzzed. And then I could hear only every other word. I tried three times, and then they didn't even call me back.

No testing beforehand. No technical assistance to fix the problem in a timely manner. And, possibly, more evidence of an ongoing attempt by the County Attorney's office to retaliate against me, in violation of title II of the ADA, for the advocacy work I have been doing on behalf of people with disabilities.

There's a backstory to this. Here it is:

I have been engaging in training people with disabilities about their rights, and trying to educate County officials about their obligations under the ADA and under Section 504 of the Rehabilitation Act. I've met resistance from County Administrators every step of the way. And, thankfully, support from the County Commissioners and their staffs, and from my former colleagues in the Civil Rights Division of the Justice Department.

I told the Director of Emergency Management that the County and the Red Cross (with whom the County partners) were in violation of federal civil rights laws, by failing to offer people in wheelchairs accessible beds and transfer assistance in Red Cross shelters and County Special Needs shelters. I showed the Settlement Agreements from the Justice Department, directly on point. I showed them technical assistance, directly on point. For four years, they refused to fix it. After the new Administration took office, and after I served on President Obama's Disability Policy Committee during the campaign, they got beds, and offered transfer assistance. Now, they refuse to meet.

They offer deaf and hard of hearing evacuees volunteer interpreters, and then refuse to tell us anything about them, or about how well they know sign language.

As we enter another hurricane season, I again asked for a meeting. Mr. Sommerhoff, the Director of Emergency Management, refuses to meet. I asked for a meeting with the Director of the local chapter of the Red Cross. He refused as well, and today, I got an email from National Red Cross - from the General Counsel's Office. Here's what they had to say about my concerns:

"I’m writing in response to your recent e-mails to Sam Tidwell regarding Red Cross services for people with disabilities in disaster shelters. Some of your e-mails and recent blog posts have been quite hostile and contained allegations of legal violations...I understand you have requested a meeting with the Red Cross’s Miami-Dade chapter, and we respectfully decline."

No response to the concerns. No information for the disability community. No offer to address the allegations. Just "we respectfully decline."

I said that since CODI was established to advise the County Commissioners, people with disabilities should be given every opportunity possible to participate. I said that the public should be allowed to participate by phone.

I asked to participate in the CODI meeting by phone last month -- they allowed it.

I wanted other members of the public to participate by phone as well, not just me. On this Blog, I posted the following:

"I appreciate the courtesy, but I recommend that in the future, the county provide a call-in number to allow the public to call in to a conference call number and that members of the public who are deaf or hard of hearing be allowed to participate through accessible services such as CART."

Apparently, that request was the kiss of death. They said the County Attorney's Office would not allow any more participation by phone, by anyone, including (especially?) me. They wrote:

"Assistant County Attorney Shanika Graves spoke with me subsequent to last week’s CODI meeting. She said that we cannot allow the general public to phone in to CODI meetings. To continue to do so would mean we are denying access to persons with speech and hearing disabilities. We will be exploring possible ways to provide access in the future."

Really? I pointed out that the Governor's Commission on Disability Issues allows participation by phone, and provides CART services as well. I pointed out that the statewide DCF Advisory Committee serving to advise the U.S. Department of Health and Human Services about the recent Settlement Agreement concerning deaf and hard of hearing clients (where I serve as Vice-Chair) allows participation by phone, and offers CART. Of course it can be done. I was surprised that the County's Office on ADA Coordination had no idea how to do it.

I suggested they contact the Governor's Commission, and the DCF Advisory Committee. They still said no.

Then, I told them I have a disability. I asked them to comply with title II of the ADA by making a reasonable modification of policy and allowing me to attend by phone, rather than requiring me to drive five hours from Key West and stay in a hotel in order to attend the CODI meeting. They said no.

I asked why.

Assistant County Attorney Shanika Graves wrote:

"Your request for a modification, to be permitted to participate in the next CODI meeting by calling in, was denied because allowing the public to participate in such a manner would fundamentally alter the nature of the activity."

Really? A fundamental alteration? Allowing a person with a disability to participate in a CODI meeting by phone would be a fundamental alteration? Do people at the County Attorney's Office get any training at all in the ADA? Do they ever do any research? Are they just guessing at this?

I wrote back, and courtesy copied the Civil Rights Division of the Justice Department, where I had served as a Senior Trial Attorney for over 12 years. I wrote:

"I think it would benefit the community to allow as much participation as possible. Requiring people with disabilities to attend in person is discriminatory, and violates federal civil rights laws. Federal law mandates that the County make a reasonable modification of policy, unless the modification sought can be shown to be a fundamental alteration or a financial or administrative burden. See http://www.ada.gov/reg2.html."

"I am shocked and disappointed that an attorney for the County could assert that allowing people with disabilities to participate in public meetings, particularly public meetings of a County Commission specifically set up to receive input from members of the disability community, is a fundamental alteration under title II of the ADA.... How could allowing people with disabilities to participate by phone be a fundamental alteration? How could enhancing the independence of people with disabilities be a fundamental alteration? I suggest that denying people with disabilities the opportunity to participate would fundamentally alter the purpose of CODI."

"I am asking the Chair of CODI to request assistance from the County Commissioners, as I believe that your decision is violative of title II, and is motivated by animus towards me, and constitutes continuing unlawful retaliation, in violation of title II of the ADA and in violation of Section 504 of the Rehabilitation Act. Your decision puts the County’s continuation of federal financial assistance at risk....Your position is not only unlawful, it is insulting. Please reconsider, and send out the call-in number."

Assistant County Attorney Graves responded:

"Please be advised I misspoke in my previous email concerning your request being a fundamental alteration. However, your request has been deemed to be unreasonable and is, therefore, denied...."

Misspoke? "Deemed to be unreasonable"? All I asked for was the ability to call in instead of traveling 10 hours roundtrip with a disability that inhibits extensive driving. What's unreasonable about that?

So, I wrote back, and asked for help from the Justice Department, County Commissioners, and the Chair of CODI. And got it. I told Ms. Graves that she should change her position and allow me, and others, to attend by phone. What's the hardship? Why not seek more participation? What is the County Attorney's Office afraid of? Participatory democracy?

Last night, at 5:30 p.m., Assistant County Attorney Graves wrote back:

"After further consideration, your request for a modification is granted. Please note you will be subject to the same rules of procedure as participants that are physically present. We ask that you do not speak out of turn and only speak when members of the public are permitted to do so. Failure to comply will result in termination of the telephone call. This is analogous to a person being asked to leave the meeting for not obeying the rules. It maybe helpful for you to keep your telephone on mute until it is time for public participation."

She actually admonished me to behave, and threatened that they would terminate the call. Rather insulting, don't you think?

I was not given a number to call, nor was any other member of the public. Instead, at the beginning of the meeting, I was called by Ilene Hyams of the Office on ADA Coordination. The call quality was terrible. There was no prior testing, and when I explained that there was a constant loud buzzing, and that I could not hear what was going on, I was told that there were no technicians available. I had them call me back three times, with no improvement. Eventually, they just decided not to call me back anymore, and I was unable to participate. I believe this was one more example of retaliation against me for my advocacy and educational efforts. Or would they prefer a different explanation for not being able to set up a simple phone call?

I continue to believe that participation in CODI should be open to everyone. The meetings are held in the middle of the day, once a month, from 1:30 pm until 4 pm. This is a large county, with thousands and thousands of people with disabilities, and many family members of people with disabilities, and many advocates. Their opinions are valuable, and should be sought.

Participation should be encouraged, not artificially and intentionally stifled. The County Attorney's office has no legal basis for denying participation. They shouldn't be allowed to.

What do you think?

Marc

mdubin@pobox.com


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