Cindy Crouse-Martin didn’t set out to be a crusader. When she was named executive director of the Governor’s Advocacy Council for Persons With Disabilities (GACPD) eight years ago, she thought she’d be a kind of poster child for the agency since she uses a wheelchair, the result of childhood polio. That was fine with her. What she mainly wanted was a good, secure job, and if the council wasn’t known for taking risks, so much the better.
Never, Crouse-Martin says, did she anticipate that she’d get caught up in a battle for control of the council with the state officials who put her in the job in the first place. But she did, and in January 1997 they fired her–demoting her to a position as a file clerk. She’s since taken a job outside state government.
In January, four years later, Crouse-Martin’s lawsuit charging that her demotion violated the federal Whistleblowers Act was argued in Wake County Superior Court in front of a 12-member jury. The jury could not reach a unanimous decision; according to Al McSurely, Crouse-Martin’s lawyer, several jurors told him the vote was 10 to 2 in her favor. She plans to seek a new trial.
But if Crouse-Martin’s case failed to win her reinstatement, it did open a window on the woes of the GACPD, a federally-funded agency that the leaders of many disability advocacy groups consider ineffective.
The council has been operating for years with a split personality, testimony in her case suggested. Under federal law, it is supposed to be an independent, state-level P&A agency, short for “protection and advocacy.” Independent means the agency must be free to challenge state government itself if it violates or fails to enforce federal disability statutes, including the Americans With Disabilities Act. Its mission is to help the almost 10 percent of the population, according to the U.S. Department of Commerce, who have a physical or mental disability.
But if the GACPD is nominally independent, its powers have been checked for years by virtue of it being buried within another agency, the Department of Administration (DOA). When members of Crouse-Martin’s board tried to get it moved out of the DOA and made into a nonprofit corporation with real independence, she sided with them. She was fired the next day.
In court, former DOA Secretary Katie Dorsett and Sampson Buie, her deputy secretary, denied that Crouse-Martin was let go because of the independence movement within the board, saying instead that the reason was her ineffectiveness as a leader. But Buie conceded that the main reason they thought she was ineffective was her inability to maintain equilibrium in an agency that was flying apart over the question of independence–and whether it was doing its job.
Most critics of the GACPD believe it can’t fight aggressively for reforms that would cost the state money unless it is set up as an independent nonprofit, as the P&As are in 41 other states.
Some 50 advocacy groups in all have endorsed making the GACPD a nonprofit. They include most of the organizations in the state that represent people with disabilities or provide services to them, including the Autism Society of North Carolina, the Brain Injury Association of North Carolina, the Easter Seal Society, the Mental Health Association, United Cerebral Palsy of North Carolina and so on.
These groups maintain that North Carolina has systematically underfunded or mismanaged programs to assist those with mental illnesses, developmental disabilities, drug addiction, alcoholism or physical disabilities–such as blindness or bad eyesight, deafness, spinal cord injuries and lost limbs–that make work and daily life a challenge.
The state, they say, clings to a 19th-century model of a few, big facilities appropriate only for the most severe cases, while it neglects to support community-based programs that would help persons with disabilities to live independently.
For example, the state’s mental-health system spends 57 percent of its money serving just 7 percent of its clients in four big psychiatric hospitals, which include Dorothea Dix Hospital in Raleigh, according to figures compiled by the North Carolina Center for Public Policy Research, a nonprofit think tank. Similar imbalances exist in special-education programs, which pay as much as $42,000 each for a relatively few students in the state schools for the deaf and the blind while scrimping on funds for the majority of such students who attend schools where they live, the Center reported recently.
While the critics don’t blame the GACPD for the policy failures themselves, they do blame it for not sounding the alarm, as P&A agencies in other states have.
Deborah Greenblatt, a lawyer and the executive director of Carolina Legal Services, said in testimony in the Crouse-Martin case that the GACPD is “invisible to the legal community.” Greenblatt’s organization specializes in mental-health cases that challenge state programs. She has sued the state Department of Public Instruction, for example, charging that it has failed to ensure that special-education students get adequate schooling, as the state constitution guarantees. That is the kind of case the P&A agencies in other states pursue, she says.
Dave Richard, executive director of The ARC of North Carolina (formerly the Association of Retarded Citizens), says that in Louisiana and Arkansas, where he worked previously, independent P&A agencies did “play a real role in fighting for major, systemic change.” Here, he says, the GACPD doesn’t, limiting itself to addressing cases one at a time. “It needs to be more of a thorn in the side of state government.”Joy Weeber, a Raleigh activist, thinks GACPD also fails to advocate the kinds of changes in building and equipment design that would help people with physical disabilities to use them. State agencies still think their job is to “fix” the disability instead of fixing the things that make the disability a problem, she says. Example: Blind folks need computer software to read aloud what’s on screen, but most libraries don’t have it. The GACPD says it’s working to get new legislation introduced on that subject this year.
According to the National Association of Protection & Advocacy Systems (NAPAS), 30 state P&A agencies–not including North Carolina–have filed lawsuits in connection with the 1999 U.S. Supreme Court decision in the Olmstead case, a landmark ruling that ordered the states to revamp their programs to assure that people with disabilities are helped to live independently or in the “least restrictive setting” possible. The decision, which was based on the Americans With Disabilities Act, grew out of lawsuits filed by three state P&A agencies, according to NAPAS Executive Director Curt Decker.
It’s these kinds of cases that the GACPD’s critics say it should be fighting but isn’t.
In written answers to questions submitted by The Independent, Allen Perry, the executive director who replaced Crouse-Martin, acknowledges that the GACPD does not like class-action litigation. He says it’s too slow and unlikely to succeed in North Carolina because the U.S. Fourth Circuit Court of Appeals, which would review any decisions involvoing federal laws, is notoriously conservative.
Perry says that the GACPD is pursuing reforms related to the Olmstead case by working with other state agencies and with clients, educating them about what the decision requires. He believes that is a more effective use of staff time than filing lawsuits.
Some of GACPD’s critics have been invited to meet privately in recent weeks with top officials of the Easley Administration, including Dorsett’s replacement, DOA Secretary Gwynn Swinson, to make their case that the GACPD should be set free. Whether Gov. Mike Easley will decide to do so remains a question mark.
Swinson declined to comment on the meetings.
At least one of the GACPD’s critics believes that it could remain a state agency if it were reorganized and insulated from day-to-day control by higher-ups.
“Why is the GACPD not as effective as it should be?” asks Mark Ezzell, a program officer with the state Department of Crime Control who also heads Project Access, an effort to organize those with disabilities to vote. “I’m convinced that placement in or out of government is not nearly as important as a lack of leadership.”The biggest problem for people with disabilities in North Carolina, Ezzell says, is that they are far behind their counterparts in other states in getting organized as a political force. The GACPD is supposed to help do that, and he doesn’t think it does. But he does think that its status as a “Governor’s Council” should help in a way that independence might not.The GACPD staff maintains that it is effective, and that moving it out of state government would hurt more than it would help. “The GACPD is a strong, united protection and advocacy system,” it said in a statement drafted at a staff retreat, according to Perry.
A former GACPD board member disagrees. “The weakest P&A system in the country,” concludes Bill Morris, who now chairs the board of the state Developmental Disabilities Council. Morris pushed for independence when he was on the GACPD board, and he also pushed Crouse-Martin to support that position. “At first,” he says, “she did pretty much what every other director had done. She didn’t have much impact,” Morris says. “By the time she left, she was trying to be an advocate.”
The Die Is Cast
Before coming to the GACPD, Cindy Crouse-Martin had been a communications aide to former Secretary of Human Resources David Flaherty, a Republican, when Gov. Jim Martin was in office. But she was always a Democrat, and when Democrat Jim Hunt replaced Martin in 1993, she applied for the GACPD job and got it.
“From the outside looking in, I knew the agency didn’t do a whole lot,” she says, “and I knew I was being hired as a state bureaucrat-slash-poster child for the disabled. But I thought, ‘I can do that. I can dress up in a nice suit and smile and go to all the functions and be just fine.’”
She laughs. “I don’t know what got ahold of me.”
Though she rejects all suggestions that there was any “pioneer” in her when she got to GACPD, she did bring clear memories of her own history with discrimination, plus some experience working with one of the pioneers in the field of disability issues, the late Ron Mace.
Mace started what is now the Center for Universal Design at North Carolina State University. He helped popularize the idea of making buildings equally accessible to “fully-abled” and “differently-abled” people alike, part of a movement that began in the early 1970s to redefine disability issues as civil-rights questions.
After the first major federal disabilities law was enacted in 1973, Mace was among those who won grants from Washington to train people with disabilities to make the most of it. Crouse-Martin came to work for him in 1980. She traveled all over the country running workshops and meeting what she now calls “the kept people.” These were folks who, because sidewalks had no curb cuts, buildings had no access ramps and employers had such low expectations, were forced to live in nursing homes or their parents’ basements. For some, her workshop was literally the first time they’d ever attended anything by themselves, she says.
It figured, then, that Crouse-Martin would look to shake up the GACPD when she got there. It didn’t happen right away. In her first year, she didn’t make waves, and she adopted what she says was the prevailing view in her office–that the GACPD’s board was a well-meaning bunch but not to be taken too seriously. She was given her first official job evaluation at the end of 1994 by Deputy Department of Administration Secretary Buie, her direct supervisor. “Superb job,” he’d written, according to his testimony in her lawsuit.
But by then Crouse-Martin had started attending conferences sponsored by the National Association of Protection & Advocacy Systems, her national association. She recalls the 1994 conference in Phoenix in particular. “It lit a fire in me,” she says.
In other states, the P&As were suing state government, insisting that the big psychiatric hospitals and mental-retardation centers be shut down and that community-based programs replace them. They were insisting that public school systems do more for special-education students. They were forcing buildings and programs to be accessible.
“I realized we had the power to make big, big changes, not just fight for the rights of one person at a time,” she says. “And I realized that my agency didn’t really bite off a big bite of anything. We were more of a gnat. We liked to talk about how well we got along with the leaders of all the other important institutions.”
Crouse-Martin also heard NAPAS leaders emphasize the important role of board members in helping them connect staff efforts to the communities they were supposed to serve. Increasingly, she’d been under pressure from Morris and other members of her own board to be aggressive and to challenge state policies, including those of her own bosses at DOA. She’d resisted her board before. Now, she started to listen.
“I didn’t set out to lose my job,” she says. “I just started down a path, but I guess I knew what was at the end of it.”
The path led to an independent, nonprofit GACPD, or at least that’s what her activist board members wanted. But it also led to staff turmoil and a showdown with DOA.
By her own admission, and taking Dorsett’s and Buie’s testimony about what happened to her at face value, Crouse-Martin ran into trouble in part because her political skills were limited, while the issues she tackled were complex.
One was the question of how to monitor the five big state developmental disability facilities–the DD centers, as they are known. The Department of Human Resources, which runs them, employs its own advocates at each one, and the GACPD had signed a memorandum of understanding with the department that limited its ability to undertake its own investigations. When the agreement came up for renewal, according to former GACPD board member Morris, the board instructed Crouse-Martin not to sign it. That put her in a tough spot, because she felt under pressure from her DOA bosses to sign it.
To break the stalemate, she proposed that the department’s in-house advocates report to her. That idea went nowhere.
A related question was why 20 members of the GACPD staff, out of some 35, work at the four state psychiatric hospitals. Each hospital houses three staff advocate positions, one lawyer and a secretary. NAPAS peer reviews of the agency in 1990 and again in 1996 criticized the arrangement, saying it made the staffers invisible to most of the communities they were supposed to serve. Crouse-Martin agreed. She thought if they moved to visible offices in town, people who hesitated to go into a mental hospital would be more likely to seek them out. Also, she thought it would help them organize people at the local level to be their own advocates for better programs.
That idea also went nowhere, mainly because the space at the hospitals was free.
Perry, her successor, rejects the idea that being on hospital grounds keeps clients away. Clients call first, he says, and when they do the staff travels to where they are. “GACPD is very user-friendly,” he writes.
Whatever the merits of her ideas, Crouse-Martin says, “meetings were held,” often without her, and then Buie would relate to her whatever decision was reached. “I realized I didn’t have any rank in DOA.” Neither, it seemed, did her board, as Morris and Joanne Jeffries, another board member who testified in her case, were noticing.
The tension between the board and DOA came to a head over the seemingly innocuous issue of curb cuts. Under the Americans With Disabilities Act, the state Department of Transportation appeared to be required–the GACPD board thought it was required, anyway–to make curb cuts for wheelchair access any time it resurfaces a road. The DOT had its own definition of resurfacing, however, and according to a GACPD staffer who’d been asking questions, it had fallen 2,000 curb cuts behind by early 1996.
DOT wasn’t responding to the staffer’s prodding. So the board instructed Crouse-Martin to file an ADA complaint against it with the federal Department of Justice. That complaint led to a settlement two years later in which DOT agreed to do the work.
But at the time, Department of Administration Secretary Katie Dorsett thought she could head off the complaint by negotiating directly with then-DOT Secretary Garland Garrett. She did, over the next seven months, according to the courtroom testimony, but Garrett dug in his heels. Finally, Crouse-Martin took matters into her own hands and filed the complaint in August 1996–three months before the 1996 elections.
Gov. Hunt was running for re-election at the time, and the complaint resulted in unwelcome news stories for his campaign, as McSurely, Crouse-Martin’s lawyer, impressed upon her jury. “You don’t have to be a rocket scientist to figure out how that went over,” McSurely argued.
Days Were Numbered
The complaint against the Department of Transportation formed the basis for one of the two charges in Crouse-Martin’s whistleblower lawsuit. It alleged that she was fired for exposing the state’s violation of a federal law–the ADA. The second charge was similar. With her board’s backing, she wrote a letter to federal officials in early January 1997 alleging that the GACPD was not really independent, which, if true, would also be a violation of federal law. If she was sacked for either the letter or the complaint, the state could be forced to re-hire her, both sides in her case agreed.
On this question, however, the testimony differed. Crouse-Martin said that after she’d filed the complaint against the Department of Transportation, Buie gave her the cold shoulder and she knew her days were numbered. But Buie and Dorsett testified that they never told Crouse-Martin not to file the ADA complaint, and that neither the filing of the complaint nor her letter to the feds were the reasons for letting her go.
Questioned by McSurely, Buie finally did answer that “yes,” the DOT complaint was “one of the things we discussed, but it was not the overriding thing” that caused him and Dorsett to decide that Crouse-Martin had to go. They didn’t like the fact that she’d gone ahead with it on her own when Dorsett was still negotiating with the Department of Transportation over the curb cuts. But the real problem was her inability to manage the agency. “Relations between the director and the staff, and the board and the staff, were terrible,” Buie recalled thinking. “Something had to be done.”
Summing up the state’s case against Crouse-Martin’s whistleblower claims, Deputy Attorney General Jeff Parsons told the jury that it wasn’t “good leadership” for her to take sides between her board and the DOA and not find a consensus solution acceptable to both. That’s why she was fired, he said, not for the specific actions protected by the whistleblower statute. “She had problems with leadership, she had problems with supervision, she had problems with rapport,” he said.
There’s no doubt, anyway, that by the end of 1996 Crouse-Martin was caught in the crossfire between her board and her superiors at the DOA. As she moved steadily to support her board, members of her own staff went the other way, possibly fearing the consequences for the agency and their own jobs if the GACPD went nonprofit. “People were nervous,” Buie testified. “These were human beings … you don’t pull the rug out from under them.” Not without careful planning, and that hadn’t been done, he said.
Nonetheless, the board asked DOA’s lawyer for a formal legal opinion: Did it run GACPD, or did Dorsett run it? The answer came back from the lawyer, Deputy Attorney General Glen Peterson, on Dec. 3. “The Board … governs the actions of the Council,” Peterson wrote. But state statutes were clear that “all management functions reside with the Secretary of DOA”–including budgeting, control of funds and the hiring and firing of all employees.
That’s when Crouse-Martin wrote her letter to Washington, attaching Peterson’s opinion and arguing that if DOA ran her agency, it violated federal law.
She also wrote a paper for her board dated Jan. 14, 1997, entitled “Rationale for Privatization of the GACPD” in which she said her staff faced frequent conflicts of interest because the agency was in state government. “It is my opinion,” she wrote, “that services can be more effectively provided in the private sector without sacrificing quality.”
On Jan. 25, the executive committee of her board voted to recommend that the agency go private. The next day, her board met and voted 4 to 1 to ask that the governor make that move. The board’s vote was unofficial, since it lacked a quorum of the 21 members.
The following day, Jan. 27, Dorsett fired Crouse-Martin.
Crouse-Martin’s removal sparked a number of written protests to Dorsett. The North Carolina Developmental Disabilities Consortium, representing 33 member-groups, said “the timing of Ms. Crouse-Martin’s dismissal, with the Board’s discussion of both its governing authority and of movement of the agency into the private sector, creates an appearance of governmental interference.” The consortium also complained that she was dismissed without any consultation by Dorsett with the GACPD board and other disability groups, which it called “troubling.”
“The appearance to many in the disability community is that the dismissal is directly related to her support for the nonprofit status,” the ARC’s Richard wrote.
Dorsett responded with letters saying she had “no opinion” about whether GACPD should be independent, and the GACPD board was free to pursue that question. In mid-1997, the board again voted in favor of seeking nonprofit status, this time by 8 to 4 with a quorum present. But shortly after that, Bill Morris and Bernadette Thompson–the latter was then board chair and, like Morris, an independence supporter–resigned their seats after being told by the Department of Administration that they were ineligible to serve because of conflicts of interest. Morris also served on the board of the state Developmental Disabilities Council, a sister agency to the GACPD that gets federal money to pass on to local groups that want to test new program ideas; Thompson is a counselor supported by funds from the state Division of Vocational Rehabilitation.
With their removal from the GACPD board, the momentum for independence sputtered. Gov. Hunt replaced Thompson as chair with Jim Wells, the lone dissenter in the earlier 4 to 1 vote for independence. Wells named a committee to look into the issue, but at first he refused to identify who was on it, saying he wanted the members shielded from pressure. That prompted Tony Mulvihill, executive director of the Alcohol/Drug Council of North Carolina who joined the board last year, to dub it “the secret committee.”
Wells could not be reached for coment, but Perry says the committee has met in public twice.
Perry himself has taken the position that if the board wants to pursue independence, he can’t help it do so, since federal law requires that any change be in the best interests of the disabilities community, and he doesn’t think that this one would be.
For that reason, the staff of the DD Council, led by executive director Holly Riddle, and Deb Greenblatt, the lawyer and mental-health advocate who represents the DD Consortium, undertook the job of putting together a briefing book for the GACPD board.
It includes a memorandum written for Dorsett by a team of federal investigators who came to North Carolina in mid-1997 in response to Crouse-Martin’s last letter. “Low morale” and “a lack of direction and focus” characterized GACPD’s staff, wrote Robert Briggs, a program manager in the federal Administration on Developmental Disabilities (ADD), who led the investigation.
The GACPD appeared to have a “no litigation” policy, did not reach out to any of the law schools in the state that might have helped develop casework, and was receiving no pro bono services–free help–from any private lawyers, as most P&As around the country do. Instead, it dealt with individual cases and tried to settle them informally. “It was our impression,” Briggs said, “that GACPD is an organization that is perceived of as being very ineffective.”
By The Numbers
Is the GACPD as ineffective as its critics say? Allen Perry maintains strongly that it is effective, even though it can’t point to landmark cases or policy changes it’s won. What he does say is that in case after case, its work for clients has pointed the way to incremental changes that have advanced disability rights in the state.These cases range from its investigations of conditions at nursing homes that led to tighter state rules, to its work with local transit authorities, getting one to escort passengers with disabilities when they transfer buses and others to make their schedules available in formats accessible to the blind. The agency’s work with one visually impaired state employee led it to start pushing last year for legislation that would make screen-readers and other assistive software available in public and school libraries throughout the state.”There are two ways to put together a P&A, just as there are two ways of advocating for disability issues,” Perry says.
For that reason, he thinks the data about his agency that is circulating now among the advocacy groups calling for GACPD’s reorganization is misleading. The data, reported by GACPD itself to the federal ADD and listed on its Web site (www.acf.dhhs.gov/programs), shows that for 1999, the latest reporting period, GACPD completed just 33 cases under the general heading, “closure of case problems.”
Of the 33, just one was closed through litigation, according to the reported data. Another nine were resolved in administrative hearings; the other 23 by “negotiations/mediation/informal resolutions.”
Every other state reported more cases closed–some of them a lot more. South Carolina, for example, listed 296 cases. New York listed 13,907, but that was atypical. Most reported hundreds of cases, and California, Texas and Pennsylvania reported a few thousand.
The 1998 data from North Carolina, which are broken down to reflect the kinds of cases the P&As handled, are similarly unimpressive. The GACPD is listed with no clients at all in several categories (health care access, employment services, transportation) and low numbers in others. For example, in the category of assisting students to get a better education, only 11 students were helped.
Perry says his agency helped far more people than those numbers reflect. In 2000, he says, GACPD helped 286 clients with developmental disabilities, plus another 433 under a separate category for persons with mental illness and 235 with physical impairments.
The staff’s defense is contained in the 16-page statement it gave to its board in 1997. It asserts that the GACPD functions better as an inside agency than it would as an outside one. “Currently, GACPD has been able to impact policy and legislative changes by being at the table when there is a discussion,” the staff said. “As a private nonprofit, an ‘outsider,’ may (sic) not be privy to those discussions and will only be able to try to ‘undo’ those decisions resulting from those discussions that are unfavorable to persons with disabilities.”
The staff, it said, had over 300 years of experience. If forced to go nonprofit, it could lose its most experienced people, because they likely would choose to take other state government jobs rather than give up their seniority and the benefits it provides them.
To the critics, all of that misses the point. State policies and legislation have failed people with disabilities by the tens of thousands, they argue, and the state needs a P&A agency that is willing to get out and say so.
NAMI-NC’s Melcher says that “deinstitutionalization” of mental-illness patients by the state “has been a disaster, and all you need to do is look around at some of the parks in Raleigh and other cities to see why.”
As the patient populations in the hospitals were cut, the promise was that they would be served by new community-based programs, but those programs never materialized, she says. Consequently, the homeless population has exploded along with the number of mentally ill people in prisons.
Similarly, Richard says the waiting list for people seeking DD services at the local level is over 6,000 and growing, and many of them have been waiting for years.
A study by the Research Triangle Institute in 1997 estimated that 372,000 North Carolinians are in need of treatment for addictions, including alcoholism, noting that 80 percent of those in prisons in the state are there because of alcohol- or drug-related crimes.
Putting these issues at the top of its current legislative agenda, the North Carolina Council of Churches said in a policy statement adopted by its House of Delegates: “State and area agencies responsible for providing assistance have been plagued by … woefully inadequate funding, unconscionable delays in services, and appearances and allegations of mismanagement.”
The last is a reference, not to the GACPD, but to understaffing in the psychiatric hospitals that has caused federal Medicaid officials to twice threaten a cutoff of federal funds to them within the last year.
Partly in response to that threat, and partly as a result of the 1999 Olmstead decision by the U.S. Supreme Court, a special legislative study commission is currently considering a major overhaul of the state’s MH/DD/SA programs–mental health, developmental disabilities and substance abuse.
The legislative committee has steered around funding issues so far, concentrating on how the programs should be organized. One idea included in its first draft bill is to set up a system of ombudsmen in every county, along with a state ombudsman, to oversee local programs.
These ombudsmen would seem to be a substitute for the job the GACPD is supposed to do, and the plan “has unleashed a blizzard of e-mail among real people” outside of state government, according to Tony Mulvihill.
“Clearly, that sort of thing should be done in the GACPD,” Mulvihill says. “But the opinion is, the ombudsmen should be anywhere but in GACPD, because GACPD isn’t going to do the job.”