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June 2015 Archives

How Dark is "Dark Money"?

Dark money, money used by lobbyists to skew elections in their favor has begun to sweep the United States elections. The New York Times stated that this past November the “Senate was elected on the greatest wave of secret, special interest money ever raised in a congressional election”.

Mitch McConnell, the Senate majority leader, is a long-time advocate of unlimited campaign spending. His own campaign received about $23 million in unlimited spending from independent groups this past November.

It seems that Michigan is one of the biggest players in the dark money saga, if not the biggest. Director of the Michigan Campaign Finance Network Rich Robinson called Michigan the “dark money capital of the world”.

In the 2014 election cycle, Michigan’s top 150 PACs raised $68 million. $3 million of this record amount was used in independent expenditures to influence the November 2014 election.

These instances are not outliers, but a trend. State lobbyists’ spending was over $37 million in 2014, a 4.1% rise from 2013. Politicians are calling what we saw in 2014 a “dress rehearsal” for what is to come in 2016. The matter-of-fact is dark money is more relevant than ever in the United States.

Michigan has passed the Michigan Campaign Finance Act. Through this act, corporations both for-profit and non-profit alike, can establish a Separate Segregated Fund (SSF). A SSF allows a business or nonprofit to survey which candidates will advocate for their policy stances, and also give them a chance to educate candidates on their issues.

A SSF allows you to avoid having to spend money on lobbyists and thus losing control of the candidates in which your money goes to. For anyone looking for a way to assist a political candidate, while avoiding the phenomenon of dark money, an SSF is the way to go.

Paul Bohn of Fausone Bohn, LLP specializes in the areas of environmental, real estate & land use, and municipal law. He also advises clients, including those running for elected office, on the establishment of SSFs and their compliance requirements. 

Medicare Fraud Sweep leads to Sixteen Arrests in the Metro Detroit Area

In the event that anyone needed more evidence that the Federal and State government is taking a serious look at persons who are out to take advantage of the Medicare System by exploiting the elderly and vulnerable, the recent arrests in the Metro Area are significant evidence of that proposition. The wide-sweeping arrests that were reported here, also show an increasing trend; namely, that there are those who are seeking to take financial advantage of the elderly and those who are vulnerable and sick.

Unfortunately, the news in this case is only a symptom of a greater problem. There are a lot of individuals who are looking to take advantage of the elderly and vulnerable, and who will try and exploit them financially, either by improperly subjecting them to medical treatment they do not need to try and obtain money from the government illegally, or by simply going into the eider's pocket book and getting ahold of their funds. Many times, it is the persons that the vulnerable trust most that take advantage of their situation; their children, their families, their doctors and their friends.

Sadly, the reports of arrest are not novel, and these are not likely to be the last. Hopefully, with arrests in cases like this, particularly where the thefts are connected with the financial exploitation of those who are most vulnerable, families and law enforcement will become more alert and sensitive to this type of activity, and become more likely to prosecute it, either criminally, or through civil actions.

How Aquaculture can be a Positive for Michigan and the Great Lakes Region

Paul Bohn, Esq.

At the start of the month, a scientific advisory panel was commissioned by State agencies to revisit the issue of commercial net-pen aquaculture in the Great Lakes. This panel of environmental experts will objectively evaluate proposals to allow commercial net-pen aquaculture and present the results to the DNR, DEQ, and MDARD by October.

The hope of this panel is to understand what to expect if such aquaculture was to begin, as well as how to prevent or mitigate the negative impacts these fish-farms would have if we were to allow them in Michigan waters.

Net-pen aquaculture refers to the offshore floating enclosures used to cultivate large numbers of fish. Currently, it is only practiced in the Ontario waters of Lake Huron. It remains unpopular off the Michigan coasts because of the potential environmental impacts it could bring.

Personally, I support the allowance of net-pen agriculture in our waters, IF they are managed properly. The United Nations estimates that nearly ¼ of the protein in human diets comes from seafood, and 21% of the world consumption of seafood comes from aquaculture. With the expected global population increases, this provides a unique and profitable opportunity for our State. This new Michigan industry could bring much-needed capital to the state, create new jobs, and have various spin-off benefits.

Sounds good right? Only if these fisheries are properly maintained. If not, the unintended consequences could destroy the Great Lakes ecosystem and the surrounding economies. Previous studies on the net-pens of Ontario, poor management of the facilities led to elevated phosphorus levels, reduced water transparency, algal blooms, and dissolved oxygen depletion. All of which significantly endanger the sea-life in the Lakes and hurt industries that rely on the Great Lakes and its inhabitants.

Another problem is the potential of the farmed species escaping into the open waters. A recent study simulated a jail-break of Rainbow Trout in Lake Huron and monitored their survival rates. These domesticated fish were able to assimilate into the wild easier than expected. The introduction of a new population of fish could have a negative cascading effect in the ecosystem and result in the extinction of native species.

Even with these risks present, I believe they can be easily avoided with smart planning and management of the facilities. Examples include: assessing the carrying capacity of potential sites, adequate monitoring of the site, allocation of waste loading, and using highly digestible diets which are less polluting and contain less phosphorus.

Our State was blessed with a precious and abundant source of freshwater. We should take advantage of this opportunity to grow local industries, feed the growing population, and above all, utilize current technology to ensure the safety of our Great Lakes.

Follow this link to see a earlier report on the environmental impacts of Great Lakes Aquaculture: http://ijc.org/php/publications/html/aquaculture/index.html#foreword

Discovery of Abuse, Neglect, and Irresponsibility, in Adult Foster Care Facilities

On Tuesday, May 19th, a state audit on The Adult Foster Care and Homes for the Aged Licensing Division revealed the agency’s disturbing misconduct and improper treatment of patients. The findings of the audit are based on a random sample of state-licensed adult foster care facilities around the state.

The summary of the audit first highlights how the agency failed to report 25% of patient neglect and abuse complaints to the Adult Protective Services (APS) from 2010-2014. Their justification for not doing so is that staff members use subjective interpretations of the facts in each case, so often a staff member of the licensing division will dismiss a case simply because he or she did not think it warranted a referral to the APS.

If by chance a staff member deemed a case worthy of reporting, there was no guarantee that it would be handled in a timely fashion. In a sample of 76 complaint investigations, 33% were not completed within the required time frame. The victims of neglect and/or abuse are often not treated with enough respect to have prompt and thorough evaluations of their cases.

The audit also found that 6 of the 44 randomly selected state-licensed facilities were not administering background checks before hiring potential employees. Current state law prohibits these facilities from hiring of individuals with felony convictions for abuse, neglect, cruelty, torture, criminal sexual conduct, prescription drug diversion, or felonious use of a dangerous weapon. Yet, several of the facilities failed to screen their employees for such convictions. In fact, at least one employee was convicted of one of these felonies and still was able to stay employed for over 2 years.

Just as complaint investigations were not completed with urgency, employee background checks took an average of 217 days (around 7 months) after hire in 5 of the facilities. The sluggishness of background check procedures endangers both the patients and employees of the facilities.

Although a majority of state-licensed adult foster care facilities do not exhibit these problems, you need to have an experienced Elder Abuse attorney on your side in case you fall victim to neglect or abuse. At Fausone Bohn, LLP, our elder law attorneys will fight to right this wrong and are prepared to go to trial if that is what your case requires. Give us a call today for a consultation on your case.

EPA, US Army Finally Enact the Clean Water Rule

As of May 27th, the U.S. Environmental Protection Agency (EPA) and the U.S Army finalized the Clean Water Rule, at last bringing clarity to identification and enforcement of protected waters under the Clean Water Act (CWA). The EPA and Army hope that the new rule will be more effective in providing clean water to Americans.

The new rule has four notable characteristics. First, it provides a clear definition of tributaries that warrant protection. A qualified body of water will have physical features of flowing water (a bed, bank, and ordinary high water mark). Second, it sets physical and measurable boundaries to protect waters that are next to, or near, rivers and lakes. Third, it excludes ditches that are not constructed in streams and/or flow only when it rains. Fourth, it significantly limits the use of costly case-specific analysis by providing clear and measurable qualifications to determine if a body of water deserves protection.

It’s about time the EPA and the Army instituted this rule. For over 10 years, they have received pleas for clarity on protections under the CWA from federal, state, and local officials. Prior to the changes, determining whether or not a water-body should be protected required businesses and government agencies to spend large amounts of their time and money. After more than 400 meetings across the country, the EPA and Army were finally able to furnish a rule that clears up the confusion, in addition to increasing the efficiency of determining protection.

There have been negative reactions to the new rule, though. The Michigan Farm Bureau in particular are weary of this added federal oversight and fear that their current use of water sources on their property may now be considered a violation of the CWA.

The Clean Water Rule will not have an immediate effect on the Michigan Department of Environmental Quality (DEQ), as Michigan is one of two states that has authority of its water programs. The EPA is allowing time for state-level agencies like the DEQ to modify their current programs and policies.

For states that have not assumed authority of their water programs, the Clean Water Rule will take effect 60 days after publication in the Federal Register.

Can making threats on social media land you in jail?

On June 1st, the US Supreme Court addressed the criminality of violent statements on the internet in its decision in Elonis v. US. The majority opinion left more questions than it answered by simultaneously dismissing the lower Court’s conviction of Elonis and not establishing a clear set of requirements needed to satisfy a conviction.

Anthony Elonis, of Pennsylvania, was initially convicted for making violent Facebook posts including death threats to his wife, thoughts of shooting up an elementary school, and his murderous fantasies about an FBI agent. These statements were published on his 
Facebook page after his wife and two children left him. Elonis’s argument that his words were fictitious song lyrics and his decision to post them was meant as therapeutic response to his anger.

The trial judge ruled that a “reasonable person” standard was sufficient for conviction, under which a reasonable person would interpret the posts as a serious threat to inflict harm on another person.

The U.S Court of Appeals in Philadelphia agreed with this decision, adding that his subjective intent was irrelevant. In other words, it didn’t matter if Elonis meant for his posts to be a joke or a form of therapy.

The US Supreme Court reversed these earlier decisions that based the conviction solely on how the message is received. The opinion was limited in clarity, only telling us what the law is not.

It is not against the law to make statements on social media that others may perceive as threats. Therefore, the “reasonable person” standard was not sufficient for a conviction. The Justices agreed that additional criteria needed to be met for a conviction, but did not set-forth any standard of what that should be.

The bottom-line is that the criminality of threats on social media remains in question. If you find yourself facing criminal charges, including making a violent statement online, you need to contact Fausone Bohn LLP immediately. The sooner you retain us, the sooner we can start working for you. We understand the Michigan criminal justice system and can make the difference between conviction and keeping your freedom. Visit our contact page for more information: /Contact-Us.shtml

Follow this link to see the full article: http://www.washingtonpost.com/politics/courts_law/supreme-court-throws-out-conviction-for-violent-facebook-postings/2015/06/01/68af3ee0-086b-11e5-a7ad-b430fc1d3f5c_story.html

Reminder: Changes to Michigan FOIA Law Coming Next Month

New FOIA legislation passed last December in Michigan will take effect next month on July 1, 2015 (PA 563 of 2014). At this point, municipalities should begin finalizing their preparations for these significant changes, which relate to how they charge for responses to Freedom of Information (FOIA) requests now.

While the changes are meant to shed some sunlight on government and increase transparency, the FOIA amendments place many requirements on public bodies.

The changes require local governments to establish specific written procedures and guidelines for FOIA requests, including a separate written summary informing the public on how to submit FOIA requests, how to understand the responses to FOIA requests, deposit requirements, fee calculations, and avenues for challenging and appealing a potential denial of a request.

It is important to note that these written guidelines must be in place in order for a public body to collect deposits and charge fees allowable under FOIA.

Most municipalities now have websites, and it is required to post the procedures, guidelines, and written summary on the website. In addition, it is required to provide free copies of the procedures, guidelines, and written summary upon request, and to include a free copy, or a website link to the policies, in all FOIA responses.

The procedures and guidelines must include a standard form to detail the itemization of any fee the municipality estimates or charges under FOIA. The itemization must clearly list and explain each of the six fee components authorized under the new legislation. These six components include:

(1) the costs of labor to locate or examine the records, (2) to separate or delete nonexempt information, and (3) to make copies or transfer digital records; (4) the cost of computer discs or tapes, or other digital media, if public records were provided on non-paper physical media; (5) the cost of duplication or publication, if paper copies were provided; and (6) the cost of postage.

There are a bevy of other changes included in the amendments, including a 10-cent ceiling on charges for paper copies of public records. Municipalities may also provide public information on the website, and, instead of providing paper copies (unless requested) they can direct a FOIA requestor to that specific website link.

One of the more notable amendments relate to the significant increase in penalties for public bodies violating or failing to comply with the act. Fines that previously ranged from $500 to $2,500 have now increased to $1,000 to $7,500.

Luckily, some municipalities already have some of these new requirements in place. However, now is the time to translate those practices into written guidelines for the public, in addition to other house-keeping items to come into full compliance with the FOIA amendment by July 1.

This blog is meant only as a brief summary of what is a policy-wonk piece of legislation. Fausone Bohn, LLP attorneys work with several municipalities across southeast Michigan and western Wayne County. Please don’t hesitate to contact us for consultation. 

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