Political Intelligence

NO NEWS IS GOOD NEWS

What would Jesus censor? Apparently The New York Times, if you believe Mendell Morgan Jr., director of library services at University of the Incarnate Word (UIW), a private, Catholic school in San Antonio. Last month Morgan, who has held his post for 31 years, decided ex cathedra to cancel the library’s subscription to the Times as his personal protest against the paper’s reports on government surveillance of international financial transactions. After the media exposed Morgan’s breach of academic and constitutional freedom, he reinstated the subscription the next day, stating in a news conference that he thought his action was appropriate, but regretted not conferring with library staff.

The San Antonio Express-News published an e-mail sent June 29 from Morgan to library staffers that read in part: “Since no one elected the New York Times to determine national security policy, the only action I know to register protest for their irresponsible action (treason?) is to withdraw support of their operations by canceling our subscription as many others are doing.” Curiously, Morgan did not ax the Wall Street Journal even though the conservative daily published a similar article the same day as the Times.

Morgan is a member of the Texas Library Association (TLA), whose mission includes supporting intellectual freedom. “We are very concerned that any action taken can limit access to information,” said Gloria Meraz, TLA director of communications, about the incident. Meraz said she was not aware of another library that had canceled a Times subscription on political grounds.

The UIW administration said in a prepared statement that while it supports the First Amendment, it was within Morgan’s purview to remove the newspaper. That reaction is not surprising, considering the school’s right-wing reputation. The UIW science hall is named after Bush disciple U.S. Rep. Henry Bonilla, Republican of San Antonio. Since 2000, UIW President Louis Agnese and wife Mickey have contributed $16,000 to Bonilla, $5,000 to Sen. John Cornyn, and $2,000 to President Bush, according to the Center for Responsive Politics.

The UIW Library was partially funded by a $1.2 million gift from the J.E. and L.E. Mabee Foundation. Two of its directors, Joe Mabee and Guy Mabee, oil and gas men from Midland, are also major Republican contributors. When the Observer asked Joe Mabee about the library controversy, he said he had no comment, then asked, referring to Morgan’s initial decision to cancel the Times subscription, “What’s the problem with that?”

Is TAB Off the Hook?

A state district judge has dealt a severe blow to the prosecution of the Texas Association of Business for its use of corporate-funded mailers in the 2002 election (yes, it’s still with us four years later). As Observer readers will remember, TAB influenced about two dozen competitive state House races in 2002 with underhanded campaign mailers supporting certain Republican candidates. The $1.9 million effort was secretly funded by corporations, and TAB—the state’s largest business group, which is dominated by insurance companies—refused to say who paid for the mailers (we later learned that, for the most part, insurance companies had taken care of the bill). The mailers were a successful part of the larger effort by former Congressman Tom DeLay and his Texans for a Republican Majority PAC to takeover the Texas House [see “Rise of the Machine,” August 29, 2003].

Travis County District Attorney Ronnie Earle has been trying to prosecute TAB (separate from his indictments of DeLay and friends) for more than three years. Texas law forbids the use of corporate and union money in campaigns. Earle’s case against TAB was based on the argument that the group’s mailer campaign amounted to illegal corporate-funded electioneering. The TAB long has argued that the ads were legal because they didn’t “expressly advocate” the election or defeat of a certain candidate (none of the mailers used such overt terms as “vote for,” “defeat,” “elect”). Therefore, the business association contends, the mailers were simply educational pieces (and constitutionally protected free speech) that can legally be paid for with corporate money.

State District Judge Mike Lynch seemed to agree. In late June, he tossed out the central felony charge that TAB had violated Texas’ ban on corporate money. He termed the case a “perplexing mess”—and anyone who’s looked at the law and the specifics of the case might be inclined to agree. “[T]wo core principles of our democratic system are in direct contention with one another [in the case]: a fair and open democratic electoral process versus the constitutional guarantee of free speech,” Lynch wrote. He went on to note that the mailers “engage in what most non-technical, common-sense people (i.e., non-lawyers) would think of as clear support for specific candidates.” But he concluded that, under the letter of the law at the time, the mailers “consist of political ads that severely test, but do not cross, the line of express advocacy [for a candidate] as that term was defined by the courts at the time.”

Earle and campaign watchdog groups have argued that TAB’s efforts must be punished to prevent opening the election process to all kinds of secret, corporate-funded campaigns. Lynch didn’t argue that point, but observed that “these statutes and this indictment aren’t equipped to do the job [of keeping corporate money out of elections]. You simply cannot make a silk purse out of this sow’s ear.”

The ruling doesn’t destroy the case. There are several lesser charges against TAB, though it may be difficult to prosecute those without the central indictment. Earle’s office has declined to comment publicly on its next move.

OUTSOURCING CLEANUP

Twelve Texas janitors are suing retail giant Target Corp. and its cleaning firm, alleging janitors were illegally misclassified as independent contractors. As a result, they were not paid overtime—or even minimum wage. The suit contends that Target is as culpable as its cleaning contractor, Oklahoma-based Jim’s Maintenance Inc., whose CEO is also cited in the suit.

In this age of outsourcing, large corporations don’t hire their own cleaning staffs. Target hired Jim’s. Jim’s hired the cleaners. The cleaners worked overnight, seven days a week, up to 70 hours a week, at 14 Target stores in Austin and San Antonio, thinking they were employed by Jim’s. What they didn’t know, according to their lawsuit, was that Jim’s had unilaterally decided—with Target’s knowledge—that they weren’t employees, but independent contractors.

The suit, filed June 29 in San Antonio by the Equal Justice Center, an Austin-based workers’ rights organization, claims that under the federal Fair Labor Standards Act, Target was as much the janitors’ employer as Jim’s, but failed to pay the janitors the minimum wage of $5.15 an hour. Moreover, since the janitors were misclassified as independent contractors, they didn’t get the federally mandated time-and-a-half for overtime.

Center attorney Bill Beardall says that this corporate dodge has become a common experience for many employees and common practice for many firms. “It began with disreputable, fly-by-night contractors, but you now have some of the largest corporations in the country attempting to engage in the same illegal scam.” On June 13, a federal judge in Indiana denied a motion for summary judgment filed by FedEx Corp. in a case involving employee pension rights. FedEx had argued that drivers who wore company uniforms were independent contractors, and therefore not entitled to pensions. The judge refused to dismiss the case, finding that the drivers were not independent contractors, but employees. Similarly, Wal-Mart Stores Inc., had to pay $11 million in fines last year when a New Jersey district court found they were responsible as co-employers when their contract cleaners hired illegal migrant staff. Misclassification is not just a blue-collar issue: In December 2000, Microsoft Corp. was ordered to pay $97 million to employees it had misclassified as contractors. Neither Microsoft nor FedEx replied to enquiries from the Observer, while Wal-Mart representatives said that, as litigation in this case is still on-going, they could make no comment.

In a June 30 statement, Target said that the janitors were not their employees, and the retail giant does not currently have a “relationship’ with Jim’s. According to Beardall, the idea that the janitors were not employees of Target is “absurd.” If the court agrees, Target could find itself liable not just for back pay, but also for benefits and unpaid payroll taxes. It’s just a matter of companies living up to their responsibilities, says Beardall, adding, “If these workers could be classified as independent contractors, there’s nobody who can’t.”

Justice and TYC

Falloutfrom alleged abuse in Texas juvenile prisons has begun. The U.S. Department of Justice will investigate allegations that the civil rights of juvenile inmates have been violated at a state-run youth prison in South Texas. A June 9 letter to Gov. Rick Perry’s office from the U.S. assistant attorney general for the Civil Rights Division said the department will examine conditions of confinement and treatment of inmates at the Evins Regional Juvenile Center in Edinburg. The letter did not specify what had prompted the investigation.

As the Observer reported last month [“Blind Spots,” June 16, 2006], the Evins facility has been the site of several riots and disturbances in recent years, and is the target of lawsuits by former employees and the families of detained youth. The executive director of the Texas Youth Commission—the state agency that operates Texas’ juvenile prisons—says the agency welcomes the Justice Department’s investigation, and will cooperate fully. “We all want the same thing—safe facilities to rehabilitate young offenders,” says TYC chief Dwight Harris. “Now, it’s just a matter of them taking a look at how we operate and seeing if they can find anything that needs to change.” TYC did not return phone calls seeking further comment.

Rates of abuse throughout TYC facilities have been on the rise over the last decade. TYC’s own records show three detainees in a hundred experienced some form of abuse last year. That number is nearly 10 times what it was 10 years ago.

No incident has been more pro-nounced than the alleged abuse in November 2004 at Evins. A small-scale inmate riot touched off a spree of abusive behavior by Evins staff, resulting in more than 80 allegations of inmate abuse, 11 of which were confirmed. The families of three boys have filed a suit that seeks up to $4.5 million in damages; the boys allege they were beaten, kicked, restrained with excessive force, and tied up and left for hours in the sun.

Some former Evins employees say the center’s administrators encouraged and concealed abuse. One former Evins employee is also suing TYC, alleging that administrators retaliated against her for reporting inmate abuse. Weeks after the November 2004 riot, Evins’ then-Superintendent Bill Roach retired after being accused of choking one boy and throwing another against a wall. Roach’s replacement, Superintendent Bart Caldwell, is also under investigation for the use of excessive force. An Evins inmate has accused Caldwell of hurting him while roughly removing a cast from the boy’s injured arm during a drug search on May 25.

The Texas House Committee on Juvenile Justice and Family Issues held a June 28 hearing on TYC. At the hearing, juvenile justice advocates called for an independent ombudsman review of investigations of inmate abuse. Currently, investigations are conducted by inspectors general who are employees of TYC, an arrangement that some advocates have called a conflict of interest. TYC representatives at the hearing blamed rising rates of violence on understaffing, and asked the Legislature to provide funding to hire additional guards.

Kids Count Down

If you’re a kid in Texas, you might consider running for the hills, or more to the point, running to New Hampshire or Vermont or Iowa.

Those states are the best places for children, according to a recent report called KIDS COUNT by the Annie E. Casey Foundation. The report uses a number of quality-of-life indicators to rank states based on the health and well-being of children and teens. Researchers considered infant mortality, poverty rates, single-parent families, and babies born with low weights. Texas is close to the bottom, ranking 39th overall, down from 37th last year. In a couple of categories, Texas is downright abysmal. It ranked 48th in teen birth rates and 42nd in the percentage of children living in poverty.

“I think nationally, this year, our big, overarching finding was that improvements in child well-being in the ’90s have gone the other direction,” said Laura Beavers, research associate at the foundation. “Texas has definitely been one of the states that has been trailing in health insurance coverage for kids.”

The report noted that 21 percent of Texas children went without health insurance in 2003, compared with 11 percent nationally—that ranks Texas dead last. Frances Deviney, senior research associate at the Austin-based Center for Public Policy Priorities, called the KIDS COUNT numbers “tragic” and noted that the actual percentage of children without health insurance is probably even higher than 21 percent because the KIDS COUNT figures did not include the children dropped when cuts were made in the state Children’s Health Insurance Program. “There’s just no reason in this day and age to see these kinds of numbers,” Deviney said. “Unfortunately, I think these numbers are going to get worse for Texas before they get better.”

Families are poorer in Texas. The state’s median family income in 2004 was $44,200 versus $50,800 nationally. There are also more children in poverty in Texas (10 percent) than nationally (8 percent).

If there is a silver lining, it’s that the report shows an improvements in Texas in the percentages of high school dropouts, children in poverty, and teens having babies. But, Deviney contends, the overall picture remains discouraging.