Injured Employees, Attorneys, and Labor Advocates Testify About D.C.’s Public Sector Worker’s Compensation System

Originally published in Washington City Paper on October 16, 2020.
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Approximately 30 witnesses turned out Friday to testify at a virtual hearing on public sector worker’s compensation in D.C. and the inequalities between the District’s public and private sector worker’s comp systems.

Up for discussion were two bills Ward 4 Councilmember and Government Operations Committee Chairman Brandon Todd introduced in July: the Public Sector Injured Workers’ Equality Amendment Act and the Public Sector Workers’ Compensation Permanent Total Disability Amendment Act. The first bill would subject injured D.C. public sector workers to the same rules and regulations as the private sector, and the latter bill would clarify that public sector workers are eligible for permanent relief if their injuries are serious enough, just as private sector workers are.

Worker’s compensation is an issue that typically garners little attention from legislators and labor advocates, for reasons explored last week in a longer City Paper examination of the issue. Among other things, this has meant that a series of restrictions of public sector worker’s compensation passed over the last decade has gone overlooked, including one restriction that imposes a 500-week cap on the benefits injured public sector workers receive. This 500-week cap is approaching in April 2021, and the Office of Risk Management, which oversees public sector workers’ comp, says there are 79 injured public sector workers who could be affected, meaning they could lose their benefits.

At Friday’s hearing, which ran about three hours, a handful of worker’s compensation attorneys turned out to argue that the present system denies justice to injured public sector workers, in part by deterring lawyers from representing those clients at all.

One such attorney, Steven Kaminski, argued that Todd’s bill to equalize the two systems would not only benefit workers but also assist administrative law judges who act as fact-finders during worker’s comp cases. Increased “attorney involvement would further increase the efficiency” of the system, he said.

Todd asked Kaminski for some examples of how the status quo deters attorneys from taking on public sector clients and Kaminski cited “tight deadlines that are not realistic” for injured public sector workers. For continuation of benefits, he explained, the public sector worker can be asked to produce medical records within 10 days of filing their claim. “Ten days to produce medical records is almost impossible,” Kaminski argued. “There were times even before COVID where requesting medical records could take at least 60 days, and since the pandemic occurred, my requests can go unfulfilled for six months.” These tight deadlines he argued, not only dissuade attorneys, but basically make it impossible for workers to have their claims fairly adjudicated. “It’s almost a trap where they’re set up for failure,” Kaminiski said, noting most injured public sector workers do not have any legal representation. 

“Does the District government really want to have its legacy be denying equal benefits to its own employees?” asked Benjamin Douglas, an Ashcraft & Gerel attorney who represents both public and private sector claimants in D.C. “Are those the values that the District wants to convey to the world?”

Union representatives, including Andrew Washington of AFSCME District Council 20 and John Gibson of Teamsters Local 639, testified in support of the Public Sector Injured Workers’ Equality Amendment Act. “It is wrong to treat our public servants as second class citizens,” said Washington.

William Lightfoot, a former at-large D.C. Councilmember who now works as a senior trial attorney at the law firm May Lightfoot, testified that passing the comprehensive reform bill would ultimately save the government money through things like streamlined staff training and establishing compatible computer software between the public and private sector systems. Lightfoot said he personally refuses to take public sector worker’s compensation cases and believes they “are rigged.”

Marcus Goodwin, an at-large candidate for the D.C. Council whose family members work in the public sector, testified in support of passing the comprehensive reform bill. Goodwin said he did not think the bill addressing permanent-total disability went far enough.

A number of injured public sector workers turned out to testify, including a handful who spoke about their positive customer service experiences with the Office of Risk Management. 

Hal Levi, an attorney who represents injured public sector workers in D.C., testified that he believes the narrower bill, which addresses only permanent-total disability, would be more appropriate for passage now, and urged the creation of a “blue ribbon panel” to study broader changes in the future. Todd asked Levi who should be on such a panel and Levi said he would be more than happy to participate, and suggested including at least private sector attorneys, public and private sector claimants, and a representative from the Office of Risk Management.

Laurie Posner, a former paramedic who injured her back and neck several times on the job, is one of the 79 workers who may lose their worker’s comp benefits in April. “The Office of Risk Management agreed that these injuries made me disabled,” she testified. “But they don’t care.”

National Service Has Rare Bipartisan Support But an Uncertain Future

Originally published in Bloomberg Businessweek on October 15, 2020.
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It’s difficult to find an issue that polls as well in the U.S. as voluntary national service. In a survey conducted in May by a Republican data firm and commissioned by the advocacy group Voices for National Service, 80% of respondents across the political spectrum said they supported increasing federal funding for programs like AmeriCorps, which places workers in stints with nonprofits such as health clinics and Habitat for Humanity.

And it’s not just in response to the pandemic: In January, almost four out of five voters—including strong majorities of Democrats, Republicans, and independents—told the same firm they wanted federal investment in civilian national service to be maintained or increased. “These levels of support and responsiveness are essentially unheard of in today’s policy debates,” pollster Michael Meyers wrote in a memo.

Yet when Democrats in the House of Representatives passed a $3 trillion coronavirus aid package in March, it wasn’t even mentioned. “That was a very disturbing development,” says John Bridgeland, who, as director of the White House Domestic Policy Council under George W. Bush, led a substantial expansion of national service following Sept. 11. “It’s just not a top priority for members of Congress. It’s a Tier 3 priority, and I say that with sadness.”

It’s been more than a decade since Congress last voted to expand national service—and even then, funding was never authorized. The 2009 Edward M. Kennedy Serve America Act was intended to triple the size of AmeriCorps, from 75,000 annual volunteers to 250,000. Five years after that bill became law, the number of AmeriCorps slots had barely budged; a federal school volunteer program, Learn and Serve America, had been eliminated; and spending on Senior Corps, which engages older adults in volunteer service, had been slashed. Proponents of national service criticized President Obama for paying lip service to it, and congressional Republicans backed major cuts during his presidency.https://www.bloomberg.com/graphics/2020-coronavirus-dash/

The Trump administration went further, proposing to zero out the budget for national service programs altogether, though advocates have been successful in pushing back against that call.

Voluntary civilian national service dates back to the 1930s, when President Franklin D. Roosevelt rallied 250,000 young unemployed men to join the new Civilian Conservation Corps. In that successful Depression-era effort—the most popular program of the New Deal—corps members planted trees and built dams and campgrounds on public lands. In the midst of the current economic and public-health crisis, devoting a fraction of government stimulus to Covid-19 contact tracing, math tutoring, disaster relief, and other jobs seems like an unobjectionable, and fittingly American, idea.

Advocates say there are many reasons why national service is a smart solution to our present woes. These jobs can address urgent needs in struggling communities, strengthen the bonds of civic attachment, and quickly put people, especially young people, back to work. (Youth unemployment stood at 13.5% in September.) From a cost-benefit perspective, national service also looks pretty good. In 2013 economists at Columbia University found that every dollar invested in youth national service generated almost a $4 return to society, and more than $2 in taxpayer savings.

Even as negotiations over more stimulus flounder, there is some momentum again on Capitol Hill behind expanding national service, and leading advocates say they’re optimistic. A bipartisan bill introduced in the Senate in June by Chris Coons, a Delaware Democrat, and Republican Roger Wicker of Mississippi would quickly double the number of AmeriCorps positions in response to the pandemic and offer 600,000 service opportunities nationwide over the next three years. The $16.6 billion Corps (Cultivating Opportunity and Response to the Pandemic through Service) Act has 17 co-sponsors, including Kamala Harris, the Democratic vice-presidential nominee, and Florida Republican Marco Rubio.

“National service has long enjoyed bipartisan support for a simple reason: It works,” Coons said. “Many of us—Republicans and Democrats—have seen the very real impact national service programs have on our communities and the Americans who serve. The Corps Act will ramp up these locally driven programs, empowering Americans in our hard-hit communities to be part of our recovery while earning valuable skills for the future.”

The chances of the Corps Act passing before the election are slim to nil. Democratic presidential nominee Joe Biden, who leads President Trump in polls, has not discussed national service specifically on the campaign trail. However, he has come out in favor of establishing a so-called Public Health Jobs Corps, a national-service-like program that would mobilize at least 100,000 Americans to help with coronavirus contact tracing. Biden also tapped Pete Buttigieg to join his transition team; Buttigieg campaigned hard during the primary on scaling up national service.

AnnMaura Connolly, the president of Voices for National Service, says she’s seen “more progress in terms of deepening, strengthening, and broadening our support in the last couple years than since I started working in this field almost three decades ago.” Connolly points to a greater appreciation of volunteers’ impact on the local level, which she says has translated into more pressure on the national level and yielded more congressional backers, especially Republicans.

Alan Khazei, a co-founder of City Year, an education nonprofit that works closely with AmeriCorps, says he thinks the pandemic has created the right “conditions” to expand national service, at least after the election. “I’ve never been more excited about the potential for large-scale national service as I am now,” he says.

The challenge for advocates, he says, has been getting Congress to take young people and their opportunities seriously. Youth lack their own organized lobbying presence like AARP, and they vote at lower rates than their elders. The other challenge is that national service has long been regarded as a “nice” thing, in Khazei’s words, and “not an essential thing.” But it is essential, he says, because nothing other than national service can effectively address so many of the nation’s problems at once.

Khazei was part of an 11-person bipartisan commission Congress authorized in 2017 to study national and military service. In late March, after two-and-a-half years of public hearings and research around the country, it published a list of recommendations, including increasing the living stipends for participants and using national service to reintegrate ex-offenders. Together, these steps would support 1 million national service opportunities annually by 2031, the commission’s final report said.

Joe Heck, who chaired the commission, says the report’s rollout was overshadowed by the Covid crisis. “We had a whole week’s worth of activities planned in Washington, including scheduled committee hearings, which were postponed.” The commission still provided input to some federal representatives—and it sparked a House bill, the Inspire to Serve Act, introduced by Democratic Representative Jimmy Panetta of California—but Heck worries that his commission’s work will become “like so many other congressional reports, which sit on a shelf and collect dust.”

While there is some evidence of momentum in Congress, illustrated by a flurry of new national service bills, including the Inspire to Serve and Corps acts, the old barriers remain. Bridgeland notes that lawmakers who sign on to co-sponsor a bill may not be willing to actually go to bat during negotiations. “The field still has a lot of work to do to make national service a Tier 1 priority,” he says.

Connolly, of Voices for National Service, is not deterred by the lack of any expansion to speak of, more than seven months into the pandemic. “There are a number of viable vehicles to get this through,” she says. “And if national service ends up not being in whatever the next package is, we will keep going.”

Locked in a Tight Race, GOP Sen. Dan Sullivan Caught in Environmental Scandal

Originally published in The Intercept on October 12, 2020.
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IN THE FINAL month of his reelection campaign, Alaska’s one-term Republican Sen. Dan Sullivan is fighting to recover from a scandal that ties him more closely to a controversial mining project opposed by the majority of voters in his state.

Sullivan’s political crisis centers around Pebble Mine — a yearslong contested project that would bring large-scale mining to the Bristol Bay watershed, a mineral-rich region that supports the largest sockeye salmon fishery in the world, and home to more than two dozen federally recognized tribal governments. The senator has received tens of thousands of dollars in campaign contributions from lobbyists, executives, and employees involved with the project, according to a recent investigation by journalists Judd Legum and Tesnim Zekeria.

Those contributions could prove to be a political liability in a Senate race being prioritized by national Democrats as they seek to retake the upper chamber. Democratic challenger Al Gross has been funding new radio, TV, and digital ads blasting Sullivan for his ties to Pebble Mine, prompted by a recent investigation that showed how mining executives envision the reach of the project growing larger than had been publicly stated. Sullivan and Gross are locked in a tight race, according to a late September poll, conducted by a Super PAC aligned with Gross. If elected, Gross — who is registered as nonpartisan — would caucus with Democrats, like Sens. Bernie Sanders of Vermont and Angus King of Maine. Gross is backed by national groups including Indivisible, the DSCC, and anti-Trump conservative group the Lincoln Project

In September, the Environmental Investigation Agency — an advocacy group focused on exposing environmental crimes — published secretly recorded conversations between undercover actors, who had pretended to be potential Pebble Mine investors, and Pebble Limited Partnership CEO Tom Collier and the head of its parent company, Northern Dynasty Minerals CEO Ronald Thiessen. In those tapes, Thiessen made clear to the fake investors that the company would aim to expand Pebble farther than it has already applied to build, contradicting Collier’s written 2019 testimony submitted to the House Water Resources and Environment subcommittee, where he stated Pebble has “no current plans, in this application or in any other way, for expansion.” Join Our NewsletterOriginal reporting. Fearless journalism. Delivered to you.I’m in

Polls show that majorities of Alaskans have consistently opposed the mining project since at least 2012, when Bristol Bay Native Corporation began conducting statewide annual surveys. One fear is that the proposed Pebble Mine is only the beginning of even more harmful extraction; more than 60 percent of Alaskans believe that if a smaller mine project moves forward, then plans for a larger mine will be later pursued and approved. Another poll released this past summer by the Bristol Bay Defense Fund, a coalition of business, tribal, nonprofit, and community groups, found likely Alaska voters opposed construction of the mine by a 2-1 margin.

A three-year, peer-reviewed EPA assessment released in 2014 found that Pebble Mine — which would be one of the largest open pit copper mines in the world — could have devastating impacts on fish populations and surrounding streams. When the EPA vetoed the Pebble proposal that year, Sullivan blasted the move, claiming the EPA “short-circuited the permitting process” and the project should have gone to the Army Corps of Engineers for review. The veto was reversed under the Trump administration, which fast-tracked the Army Corps of Engineers assessment. This past summer, the Corps determined that “as currently proposed, the project could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation.” Mining executives are hoping to get a modified plan approved by the end of the year.   

Collier also said on the calls that Sullivan and Sen. Lisa Murkowski were not real impediments to their plans, despite the lawmakers’ occasionally critical public statements, which Murkowski has couched in claims that she has little influence over the project. On Sullivan specifically, Collier said the senator, who has been notably vague on Pebble, was hoping to “ride out the election” and keep silent on the project. “I think that’s our plan to work with him. Leave him alone and let him be quiet.” Thiessen said they were “trying to work” with Sullivan by allowing him to say critical things that didn’t offer explicit opposition to the project.

Collier took the fall from the tapes and resigned, and has been replaced by former Pebble CEO John Shively. Thiessen, meanwhile, has stayed in his position but apologized for his comments that were caught on tape.

Three days following the release of the explosive tapes, Sullivan tweeted his most firm opposition to Pebble Mine yet, writing, “I oppose Pebble Mine. No Pebble Mine.” On a radio show last week, Sullivan went even further, claiming he would oppose the mine project even if the developers drafted a solid plan to mitigate environmental harm. During a Zoom debate on Saturday, Sullivan’s Democratic challenger Gross pressed the senator on the mining issue. In response, Sullivan said, “The Pebble Mine is dead, and I’m going to keep it that way.”

Gross has also been running nonstop attack ads on the tapes’ revelations and Sullivan’s ties to Pebble Mine.

The vulnerable Republican senator has been trying to distance himself from the political fallout and the project itself, but his financial entanglements keep getting in the way. While the Anchorage Daily News first reported that Sullivan received more than $10,000 from Pebble Mine executives and employees since 2017, Popular Information, the newsletter run by journalist Judd Legum, found the tally is actually more than $34,000 in campaign contributions when including donations from Northern Dynasty and its lobbyists.

Sullivan’s campaign did not return a request for comment, but during the Saturday debate, he said he would give Collier’s campaign contributions to charity. Collier has donated at least $7,400 to reelect Sullivan since 2017, according to FEC filings.

Environmental groups have been up in arms since the tapes were revealed.

Andy Moderow, the Alaska director at Alaska Wilderness League Action, said the whole scandal revealed Sullivan’s “hand caught in the cookie jar” in terms of doing corporations’ bidding. “This is a story that’s going to be going all through October,” Moderow predicted. “It’s a September and October surprise.”

Tim Bristol, director of SalmonState, told The Intercept that Sullivan’s comments were “deeply disappointing” and that despite “Alaskans want[ing] action” they have not gotten it from their senator. “Opposition to Pebble … is an issue that unites Alaskans across the political spectrum and has for 15 years now,” he added. “The foot dragging from our leaders shows they are out of touch on the issue.”

Bob Shavelson, the advocacy director at Cook Inletkeeper, a nonprofit dedicated to protecting Alaska’s Cook Inlet watershed, called the Pebble Mine tapes “an absolute bombshell” which has “blown shrapnel” through the whole project.

Shavelson was also unimpressed by Sullivan’s recent statements of opposition to the project. The senator is “a corporate shill who will do whatever he has to get reelected,” Shavelson said. “He’s had years and years to take a principled stand on Pebble and he’s never said anything close to definitive until these tapes came out and it looked like it was a close election. He’s just embarrassed now because they treated him like a little lap dog to go sit in the corner.”

Workers’ Compensation in D.C.: Separate and Unequal

Originally published in Washington City Paper on October 7, with the support of Spotlight DC — Capital City Fund for Investigative Journalism.
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In April 2009, then-53-year-old Esther Layne, a customer service representative with the D.C. Office of Unified Communications, suffered an acute attack from exposure to allergens in her workplace and had to be hospitalized. Layne says she was first exposed to toxic gas and pesticides while working as a clerk typist for a D.C. substance abuse facility in the 1990s. Though she tried to return to work following her 2009 hospitalization, Layne continued to suffer complications, and never fully recovered. A few months later she was approved for public sector worker’s compensation, and began receiving benefits both to treat her asthma and rhinitis, and for wage loss.

Now, at 65, Esther Layne is fighting an unexpected development: D.C. abruptly cut off her benefits after a city-hired physician concluded last year that her ongoing symptoms including sensory deficits and shortness of breath could not be objectively linked to her workplace exposure. “I see a top allergist in D.C. [Dr. Elena Reece] and they just ignored her letter, and they send me to their doctors who are quacks,” Layne says.

Now Layne’s attorney is pressing the city to give her permanent relief, but D.C. is claiming because she worked in the public sector as opposed to the private sector, she’s not even entitled to that kind of redress anymore. 

“All my credit cards are maxed out and the little bit of savings I had is gone,” Layne says. “I’m trying not to be depressed, but I’m so stressed and I’m behind on all my bills. They don’t care anything about your health and living situation. It’s disrespectful, and the thing that really bothers me is I dedicated my life to government.”

Layne’s fight for relief overlaps with other ongoing worker compensation battles in D.C, an area of government that has garnered markedly little media and political attention over the years. Unlike nearly every state, D.C. has two separate systems for injured public and private sector workers, and the inequalities between those systems have grown wider over the last decade as new restrictions limiting benefits for public sector employees have rained down.

Workers’ comp is now slated for a rare moment in the spotlight, with a Council hearing scheduled for Oct. 16, but even that event is enmeshed in confusing politics. Ward 4 Councilmember and government operations committee chairman Brandon Todd introduced two bills in July to address some of the inequities of the public-sector system, but his bills have no co-sponsors to date. And since Todd lost his primary to challenger Janeese Lewis George in June, he will exit the Council at the end of the year. 

Some Council watchers speculated his bills had been driven by a last-ditch effort to court labor groups during the primary, since union discussions around potential workers’ comp reform started in the winter. Others pointed to the influence of Todd’s chief of staff, Sherryl Newman, who is married to an attorney who represents injured public sector workers in the city. Todd did not return multiple requests for comment.

“Workers’ comp is one of those technical issues that does really end up affecting people’s lives, but it doesn’t really rise up to be anyone’s top priority,” says Elizabeth Falcon, the executive director of DC Jobs with Justice, and a supporter of one of Todd’s bills.“Even for the unions there’s only some sectors that need workers’ comp … I hope that the weird politics of this don’t undermine the Council solving the problem, which is real.”

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Originally born out of Germany and later adopted by the U.S. in the first two decades of the 20th century, workers’ comp is the idea that employees will give up their right to sue if they are injured on the job, and in return employers will pay their medical expenses and at least some of their lost wages. Factories were dangerous places and highly prone to gruesome accidents, and in his 1907 State of the Union Address President Theodore Roosevelt touted the importance of expanding this workplace bargain. “The number of accidents to wage-workers, including those that are preventable and those that are not, has become appalling in the mechanical, manufacturing, and transportation operations of the day,” Roosevelt declared. “It works grim hardship to the ordinary wage-worker and his family to have the effect of such an accident fall solely upon him.”

Today, in nearly every state, injured public and private sector workers are covered under the same set of workers’ comp rules, except police officers and firefighters, who often have their own arrangements. But in D.C. it’s different, a product of Congress’ decades of control over local affairs. When Congress gave governing authority back to the District in the 1970s, it required D.C. to establish a merit-based personnel system that mirrored the Federal Employee Compensation Act, leading to the Comprehensive Merit Personnel Act of 1978. Among other things, this law established workers’ comp for former federal employees now working for the city government; private sector workers were covered under their own statute passed a year later. While both sectors of workers’ comp were originally handled by D.C.’s Department of Employment Services, beginning in 2003 public sector workers’ comp was transferred to the newly created Office of Risk Management, a fitting moniker, workers say, for the conflict of interest inherent in having the same agency act as the city’s insurer, an adjudicator of workers’ claims, and a drafter of workers’ comp rules.

(Because D.C. Superior Court hears appeals of ORM’s decisions about issues like the need for medical treatment, ORM insists they are sufficiently independent and there is no conflict of interest. However, attorneys point out this still leaves fact-finding in the hands of ORM, as the Superior Court does not conduct hearings or review new evidence.)

In the late 1990s, when the city’s finances were under particular duress, some business and political leaders complained that D.C. was too generous to its injured workers and urged officials to put more stringent limits on potential relief. The Council imposed a few modest reforms to the private sector law but resisted pressure to limit the length of time an injured employee could collect benefits, to the chagrin of the business community and the Washington Post editorial board. “If we’re not interested in being competitive, then we do what we’re doing and we can sit back and complain when businesses don’t come here,” Ward 2 Councilmember Jack Evans lamented at the time.

For public sector workers, meanwhile, things were a mess. Injured employees were increasingly losing their benefits or denied them for arbitrary and conflicting reasons, and others were never given notice before their checks were cut off. For those who did receive notices of termination in the mail, most would say that in ORM’s judgement they were no longer disabled, based on the opinion of the government’s hand-picked medical examiners.

After hearing from many people with similar complaints, attorneys working at the Employment Justice Center, the George Washington University Law School’s Public Justice Advocacy Clinic, and the private firm Miller & Chevalier filed a class action lawsuit on behalf of the publicmsector workers in 2001. The case, Lightfoot v. District of Columbiawas litigated for more than a decade and called for reinstating previously denied workers’ comp benefits and halting future terminations until a fairer process could be installed.

“Nobody was talking about workers’ comp, it was just an invisible issue,” recalls Laura Brown, the former director of legal services at the Employment Justice Center who helped litigate Lightfoot. “There weren’t really many rules that were known. It was like this weird internal system that only people working there knew the rules, and the claimants did not. People’s benefits were being terminated, suspended, modified without notice, and often with little or no input from the worker.”

Duncan Stevens, a former Miller & Chevalier lawyer who also helped with Lightfoot, remembers asking the city for data on how many people saw their benefits terminated between 1998 and 2002. “We asked them, and they didn’t know—they just did not know,” he says. “And we said, ‘How can you not know?’ and they gave us all sorts of answers.”

While the lawyers were successful in bringing more due process to the public sector system, the courts ultimately declined to recognize all the injured workers as a single class. “Members of a class must be treated more or less identically to band together, but the system was so chaotic that you could not say employees had been treated the same,” Duncan explains. “Some got decent explanations [for terminating their benefits], some got no explanations at all.”

Around the same time the Lightfoot case was wrapping up, beginning in 2010, things started to get worse for injured public sector workers at the D.C. Council. Those who had unsuccessfully advocated for caps to private sector workers’ comp in the 1990s found new success with lawmakers curtailing rights for those working for city government. Among other things, the D.C. Council, with the support of the Office of Risk Management, removed the compensability of most emotional and psychological injuries, repealed augmented pay for public-sector spouses and dependent children, removed the ability of an injured worker to choose their own doctor, removed the requirement that courts give legal preference to the opinion of a worker’s treating physician, and instituted a new 500-week cap on receiving benefits. None of these rules existed or exist for injured private sector workers.

Advocates note that most of the Council’s changes came as part of budget support acts, generally with no hearings to debate the proposals, and with very little legislative history to review.

D.C. wasn’t the only place where workers’ compensation was quietly being rolled back. A ProPublica and NPR investigation published five years ago found that between 2003 and 2015, lawmakers in 33 states, largely at the behest of the business community, passed new workers’ comp laws to reduce benefits or make it harder to qualify for them. These measures were often branded as “reform” and pushed on “the false premise that costs [were] out of control.” While the journalists looked at changes across 50 states, D.C. was not included in their survey.

One reason the national degradation of workers’ comp had attracted little attention was because after budget cuts in 2004, the U.S. Department of Labor stopped tracking state workers’ comp laws. Reporters found that the cutbacks in some places “virtually guarantee[d]” injured workers would sink into poverty, and that workers often had to battle insurance companies “for years” to get the medical care their doctors recommended.

J. Paul Leigh, an economist at the University of California, Davis, who has studied workers’ comp, says one change he’s tracked has been the rising clout of doctors, who are charging far more for common procedures than they used to. “As medical costs continue to go up, state legislatures and insurance companies have wanted to restrict the amount spent,” Leigh says. “It used to be roughly 30 percent of workers’ comp went to the doctor, and 70 percent to workers in lost wages. Now it’s over 50 percent going to the doctor.”

When the D.C. Council approved, as part of its Budget Support Act of 2010, a new provision to limit public sector workers’ comp to 500 weeks, lawmakers clarified the clock would start ticking one year after enactment, meaning September 24, 2011. 500 weeks is now a mere six months away, and longtime injured workers are set to be cut off beginning in April 2021. The Council also required that within the final 52 weeks prior to termination, a worker is entitled to a hearing before an administrative law judge to determine if their injuries are permanent.

The Office of Risk Management tells City Paper there are 79 injured workers who have received notice that the 500-week temporary benefit cap would be reached within 52 weeks. Of those workers, ORM says they’ve received on average 1,126 weeks (or 21.67 years) of benefits. 

One of those workers is 65-year-old Laurie Posner, a former paramedic who injured her back and neck several times on the job in the 1990s, requiring multiple surgeries, and again in early 2000, while lifting a patient. Posner couldn’t return to work and was approved for workers’ compensation for her cervical strain. On May 6, the Stafford, Va., resident received a letter informing her that she will be reaching the new statutory cap on April 24, 2021, though she could schedule a hearing.

“I’ve been in chronic pain for years, and if I were cut off I would lose my home, which I’ve had to refinance three times just to stay in it,” Posner says. “It’s not like I’ve paid off my house. I’ve been using my equity to survive on what little I’m making, and if I lost that, I would lose my home, definitely.”

Hal Levi, a local public sector workers’ compensation attorney says that “unfortunately there’s a lot of people out there injured prior to September 2011 who have no idea what’s happening and don’t know what’s going to happen to them next April.” Many workers’ comp beneficiaries lack legal representation and it would be easy to read their termination notice and not understand what it means. “If they reach that 500 weeks next April, they won’t even have a right to a hearing,” Levi adds. “Their benefits will just be stopped.”

Levi’s oldest client was injured back in 1983, some 37 years ago. “Some of these clients are crippled, some are in wheelchairs, one has had a heart transplant,” he says. “They come to me because I’m one of the few lawyers around here who will take on their matters and I feel for them. I really feel they’ve gotten royally beaten down by the Office of Risk Management to get approval for their medical bills.”

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One of the most striking disparities that has emerged over the last decade between the public-sector and private sector workers’ compensation systems is the notion that public sector workers are no longer eligible for permanent relief from serious workplace injuries. The Office of Risk Management and their lawyers at the Office of the Attorney General claim the D.C. Council did away with this eligibility in a 2015 budget bill,though workers’ compensation attorneys hotly dispute that legislative interpretation.

Council Chairman Phil Mendelson tells City Paper he doesn’t “have much memory” on what the legislative intent was in 2015 and would have to review the committee report. “The only thing I remember is that the disability comp has been very controversial for the public sector system and the Council felt that the Office of Risk Management was not doing a very good job,” he says. “ORM was seen to be more interested in not processing claims as a way of saving the government money, which was not something the Council liked.”

In D.C., like in nearly every other jurisdiction, there are four categories of workers’ compensation, which go by names like “temporary-partial disability”, “temporary-total disability,” “permanent-partial disability,” and “permanent-total disability.”

Temporary-partial is when a disabled worker is seeking treatment but expected to work part-time or at a lower-level job until they completely recover. Temporary-total is when an injured worker cannot work, though could potentially return to their job eventually—this is typically the default classification in D.C. Permanent-partial is when a worker’s ability to earn income is partially impaired from an injury that will never heal, and permanent-total is when a worker can’t earn any future income by performing the work they used to do.

Many workers, like Posner, the former paramedic, have been classified as temporary-total disabled, but have been receiving benefits for decades and effectively treated as permanently disabled. “It’s been a distinction without any real meaning until now,” says Levi.

Posner says she was never told how long her workers’ compensation benefits would last, but ORM informed her in 2003 that she couldn’t return to work as a paramedic. “They told me I would be compensated until I could return, and since I was told I couldn’t return I assumed it would be for life,” she tells City Paper.

To justify their interpretation, the Office of Risk Management points to a budget bill the Council passed in 2015, when lawmakers repealed a provision dealing with so-called “scheduled awards,” or cash settlements granted for certain injuries. The Council also added a new provision clarifying that a public sector worker receiving a scheduled award could no longer receive temporary-total or temporary-permanent disability benefits on top of it.

Two years later, the Office of Risk Management issued new regulations that claimed the Council had thus eliminated permanent-total and permanent-partial disability for public sector workers in 2015, though workers’ compensation attorneys say nothing in the legislative history suggests that was the case. This interpretation however, has had calamitous implications for workers like Esther Layne who cannot return to work and are now learning they are not even eligible to be considered for a permanent extension of their temporary-total benefits, which are newly capped.

In a court filing sent to Layne’s attorney on Dec. 13, the Office of the Attorney General wrote that permanent benefits for public sector workers are “no longer available” since their alleged repeal in 2015, and that the Office of Risk Management’s interpretation of the statute should be “deemed the accurate interpretation” unless there is a clear error.

“The public sector system here has some of the drastic anti-worker features that you find in the reddest states,” says Benjamin Douglas, an Ashcraft & Gerel attorney who represents both public and private sector claimants in D.C., including Layne and Posner.

Levi, who is 73 years old and has been practicing law for more than four decades, says he has watched as the Office of Risk Management and the Council “changed the rules of the game in ways that’ve been very, very damaging” to injured public sector workers.

“We’ve tried to fight it, we’ve tried to challenge it, and up until now, we’ve had very little success in doing either,” he says. “Commenting on rules as they’ve been proposed has done no good. Testifying at the oversight hearings has not done much good. I’ve gotten convinced in past years that ORM just seems to have its way with the City Council, which is very unfortunate.”

One factor that has suppressed the concerns of injured workers is that there has never really been an organized advocacy group speaking on their behalf, aside from a couple of lawyers like Levi. Many are not D.C. residents; some live in Maryland and Virginia or have moved even further away, and never really had the ear of the Council. And for the longtime injured workers who are no longer paying union dues and may never return to work, their plight has never risen to the top of labor’s legislative wishlist, either. In a climate of austerity many unions made the decision to fight for their current members rather than rally on behalf of those who could no longer do their jobs.

***

Robert Newman got into public sector workers’ compensation law through Hal Levi, who he was connected with through a mutual friend. In 2018 the two men went to Councilmember Todd with some proposed changes to the Comprehensive Merit Personnel Act. (Newman is married to Todd’s chief of staff, Sherryl Newman.) This then led to the Injured Public Workers Fairness Amendment Act of 2018, introduced by Todd and At-Large Councilmember Robert White, and co-sponsored by Ward 8’s Anita Bonds and Ward 6’s Charles Allen.

The bill was referred to At-Large Councilmember Elissa Silverman’s Committee on Labor and Workforce Development, which then had jurisdiction over the Office of Risk Management. But it “never saw the light of day” says Newman, who lamented that Silverman never brought the bill up for a hearing.

Silverman’s office confirmed they met with Levi and Newman in June 2018 and felt at the time that they couldn’t fit their bill into the already packed fall legislative schedule before the end of the Council period. Silverman’s office was also concerned that it hadn’t heard from injured workers or their unions about issues with workers’ compensation, and staffers reasoned the underlying issues could be explored further at ORM’s annual performance oversight hearing the following February. In January, however, the agency was transferred to Todd’s Government Operations Committee.

Now, two years later, there are two new bills before the Council, both introduced by Todd.

One bill, which is more sweeping, would seek to make the public-sector system broadly identical to the private sector one. Advocates for this bill, the Public Sector Injured Workers’ Equality Amendment Act, say it will lead to greater justice for city employees, granting them the same rights and privileges as their private sector counterparts. Among other changes, the bill would let injured public sector workers again choose their own doctors, receive benefits for more emotional injuries, be eligible for permanent relief, no longer have to wait for the D.C. government to respond to them before they can file for their own hearings, and make it easier to obtain legal representation by making it easier for lawyers to be reimbursed for their services.

Advocates also point to a racial equity aspect of harmonizing the two systems. According to a recent Economic Policy Institute analysis of Census data, roughly 64 percent of D.C. government employees are Black, and 27 percent are White. In the D.C. private sector, by contrast, 34 percent of employees are Black, and 45 percent are White. And according to statistics about the two workers’ compensation systems gleaned from a Freedom of Information Act request, between 2009 and 2019 public sector workers in D.C. were approximately half as likely to receive permanent-partial disability and nearly 100 percent less likely to receive permanent-total disability than their private sector counterparts. The FOIA data also suggests that the public sector has significantly higher accident rates than the private sector.

We are really at a workers’ compensation disadvantage in the public sector,” says John Gibson, president of Teamsters Local 639, which represents city government employees like custodians and school grounds workers. Gibson’s union is backing Todd’s bill to equalize the two systems, and while he says the problems have been evident for a while, “it just never really gained traction” before to tackle. “We have heard nightmare stories about people losing just everything because [ORM] drags their feet on processing claims, or they don’t hear the full case, and we just feel they’ve been really partial,” he says.

Brenda Zwack, an attorney representing American Federation of State, County and Municipal Employees District Council 20, which is also in support of the Public Sector Injured Workers’ Equality Amendment Act, says while unions had heard complaints over the years, raising awareness about these rules “was kind of an esoteric legal question,” making it “hard for people to advocate around.”

Though AFSCME and other unions do not negotiate over it, Zwack acknowledges many workers do come to unions with workers’ compensation concerns. “It’s not at the top of AFSCME’s legislative agenda, but we do think [the bill] is the right thing to do because we’ve heard members complain about the system,” she says. “In the broad sense we want to support good things for workers, and AFSCME represents some people working in some of the most dangerous jobs.”

Todd’s second bill, the Public Sector Workers’ Compensation Permanent Total Disability Amendment Act, would propose a narrower fix, clarifying that city government employees are indeed entitled to permanent relief for serious injuries.

This legislation is what Levi and Newman support; they say rushing to put the public sector workers’ comp system under the same rules as the private sector without deliberately studying the tradeoffs between the two could result in losing some aspects of the public-sector system that are currently more advantageous for workers. They argue the more sweeping bill could be more in the interest of attorneys than the workers themselves, and lawmakers should prioritize fixing the permanent disability provision, so those receiving temporary-total disability benefits could remain covered after the cap expires in April.

“My personal belief is this requires a whole lot of study that hasn’t been given to it. I think hearings need to be held and it’s really got to be delved to the point where the Council understands what the pros and cons are,” says Levi. “I’m not using this as a vehicle to try and gain business. I’m going to be retiring soon.”

Levi supports repealing all the changes made to the Comprehensive Merit Personnel Act over the last decade, but he worries there may be some aspects of the private sector system that if adopted wholesale, could actually jeopardize public sector workers. One example he cites is cost-of-living increases, which currently are only permitted in the private sector for permanent disabilities, but the Comprehensive Merit Personnel Act allows increases also for temporary disabilities. Newman suggested the Council form a committee to study the best way to equalize the systems, and then come back and propose legislation.

Robert Preston, a spokesperson for ORM, said the administration’s position on Todd’s bills “will be provided to the Council in the normal course of the legislative process.” Preston maintained that comparing the public and private workers’ compensation system is like comparing “apples to oranges” and argued the two systems have “completely different” orientations. 

Zwack, of AFSCME District Council 20, says she’s “yet to see any downsides” for workers under Todd’s comprehensive reform bill and thinks they’d be “by far better off” if it were to pass. “Council 20 is certainly satisfied, the proposed legislation would be a huge step forward to equity,” she says.

Douglas, the Ashcraft & Gerel attorney who also supports the comprehensive bill, says it “would allow attorneys to fight more for our clients, because we could actually take matters to court when it suits our clients and not just when it suits the Office of Risk Management.” It’s true the Public Sector Injured Workers’ Equality Amendment Act would have fewer constraints on when attorneys could be compensated for their legal services, but Douglas says “that is also how it would help clients get representation.”

The politics are complicated by Todd leaving the Council, but as long as the bills are given a hearing this year, they could then be fast-tracked in 2021, even if they are not voted on in December. Mendelson says he’s had no conversations with his colleagues about these public sector workers’ compensation issues, and advocates haven’t approached him either.

“I think Todd’s hope was to get the hearings done and then if we need, we can find someone else to sponsor it,” says Newman. “In 2018 we had four co-sponsors, so I think we can find one of them to bring it forward.”

Douglas also says he’s not too worried about their legislative prospects. “As for long-term plans, I am optimistic that the Council will get on board with serious reform this year,” he says. “If that does not happen, of course the struggle will continue.”


Amid Internal Power Struggle, Firefighters Union Clears President of Wrongdoing

Originally published in The Intercept on September 22, 2020.
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THE INTERNATIONAL ASSOCIATION of Fire Fighters has absolved its president, Harold Schaitberger, of any wrongdoing related to his receipt of pension payments, according to an internal review obtained by The Intercept. The union’s No. 2, General Secretary-Treasurer Ed Kelly, had charged back in March that Schaitberger was receiving the payments too soon, prompting the investigation. Another internal review, which was distributed within the union last week, found that Kelly had improperly hired outside legal counsel to investigate Schaitberger and the IAFF.  

Kelly alleged in the spring that Schaitberger, who was elected as the IAFF’s president in 2000, after 24 years of serving as an IAFF staffer, has been drawing from his staff pension benefits too soon, receiving more than $1 million earlier than allowed by federal law and union rules. The allegations sparked the internal probes, which were led by board-level committees.

The jockeying at the top of the IAFF, which represents 320,000 firefighters and paramedics across the U.S and Canada, comes at a crucial political juncture, ahead of the presidential election in November and union elections in January. Schaitberger is a key ally of former Vice President Joe Biden, and under his leadership, the IAFF endorsed Biden in April 2019, long before any other labor union, drawing the ire of President Donald Trump. Schaitberger is up for reelection in January and is currently running unopposed — though, as The Intercept reported last week, Kelly has expressed interest in the role, according to an IAFF leader from the Midwest and other union members. Kelly’s chief of operations, Matt Golsteyn, was pardoned for war crimes by Trump in November 2019 and campaigned with him at a Republican Party fundraiser a month later.

Following Kelly’s accusations, the union executive board suspended Schaitberger’s monthly pension payments and suggested that the union may need to “recover the impermissible benefit payments” Schaitberger had received, potentially by offsetting them against future payments. The board then launched its internal review; neither Schaitberger nor Kelly were involved in appointing members to the committee tasked with reviewing the pension claims, according to the 29-page report.

The report was distributed to thousands of IAFF leaders on Monday, and in it the union reversed its suspension of Schaitberger’s pension payments. The report also noted that the union’s executive board unanimously approved an amendment in 2002 affirming Schaitberger’s right to collect his staff pension while serving as president. It does not say definitively whether he improperly received payments, but concludes that any overpayment he may have received “cannot be recovered from him” because it would be “improper” under the principles of the Employee Retirement Income Security Act of 1974 to hold him financially responsible for that. (The federal retirement law places the responsibility of record retention on the employer, not the employee, and the union noted many key witnesses involved in managing the pension fund are now dead.) “Our determination is due in no small part to the amount of time that has passed since the events at issue and the significant prejudice to Mr. Schaitberger resulting from the passage of time and the wasting of evidence,” the report concluded.

Earlier this month, federal authorities launched a criminal probe into the allegations. In the union’s new report, the authors acknowledged that the federal government may still find wrongdoing, but emphasized that if a pension “correction” is needed with the IRS, Schaitberger should not be personally on the hook for it.

On Monday, Schaitberger sent a lengthy email to IAFF leaders sharing the pension report, which he claimed “vindicated me,” laying out the major findings of the internal review. He also warned that some may try “to mischaracterize this Decision, to once again serve their own ambition and purposes. When they do, they will continue to expose their own agenda and further harm this IAFF.”

A second executive board committee report, which was distributed internally to IAFF leaders last week, blasted Kelly for secretly hiring the “antiunion, anti-employee” law firm Nelson Mullins in January to investigate the union’s finances. Kelly used his personal email account to hire the law firm, without knowledge or approval from others on the union executive board. When reprimanded in March by Schaitberger for the unauthorized hire, Kelly defended his decision, saying that his constitutional authorities as general secretary-treasurer “provide[s] for the ability to retain outside counsel to assist me with my fiduciary responsibilities as the association’s treasurer.” (The IAFF’s general counsel disagreed with this assessment, according to an email he sent Kelly on March 12.)

In the report pertaining to Nelson Mullins, the IAFF said that when it had first asked the firm for documents and emails relevant to its representation of the union, it “provided an incredibly incomplete response” and allegedly withheld documents from the executive board. This prompted the board to vote in July to instruct Nelson Mullins to immediately cease all IAFF work and provide the union with all documents, correspondence, and work product by August 7. But the law firm, according to the IAFF, did not stop working and proceeded to submit a so-called preliminary report on the union that had not been requested. The IAFF blasted Nelson Mullins for producing an unauthorized work product that “is filled with unsubstantiated allegations, innuendo, and factual misstatements” and “appears to be nothing more than a hit piece on the IAFF Executive Board and General President.” 

Asked about the internal reports, a spokesperson for the IAFF told The Intercept that they “speak for themselves.”

Firefighters Union, A Key Biden Ally, Confronts a Barr Investigation and Trump’s Pardon Power

Originally published in The Intercept on September 18, 2020.
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IN AUGUST 2016, Ed Kelly, a young rising star in the Massachusetts labor movement, won his bid to become General Secretary-Treasurer of the International Association of Fire Fighters, or IAFF: the union representing 320,000 firefighters and paramedics across the U.S and Canada. The position is the second most powerful in the union, behind the presidency, which has been held for the last two decades by 74-year-old Harold Schaitberger, a close ally of Joe Biden.

Soon after, Kelly tapped combat veteran Mathew Golsteyn to serve as his chief of operations. The low-key hire came at the recommendation of Kelly’s brother, Greg, who had overlapped in Afghanistan with Golsteyn. But Golsteyn was not just any Green Beret: He had earned a spate of shocking headlines just a year earlier for alleged war crimes, for which he was ultimately pardoned by President Donald Trump in November 2019. In the month following the pardon, Golsteyn joined Trump onstage at a secretive fundraiser for the Florida Republican Party, helping them net $3.5 million in donations.

In 2015, Golsteyn had been stripped of a Silver Star after disclosing in a CIA polygraph interview that he had shot and buried an unarmed Taliban fighter he thought was a bombmaker, and later dug up the remains and burned them in a pit. The revelations roiled the CIA, which quickly notified the Pentagon, sparking a two-year investigation in which the U.S Army concluded in 2013 that Golsteyn had knowingly violated the laws of war. While investigators did not find enough evidence to bring criminal charges, in an internal Army memo previously reported by The Intercept, Golsteyn was reprimanded for a “complete lack of judgement and responsibility” and told he had “discredited” himself and the U.S military.

But in October 2016, just a month after joining the firefighters union, Golsteyn was asked on Fox News if he killed the suspected bombmaker, to which he replied, “Yes.” This new public admission sparked army investigators to quickly reopen their investigation, and two years later charged Golsteyn with murder.

The new probe and criminal charges became a cause célèbre among conservatives, who rushed to Golsteyn’s defense. Golsteyn’s lawyer called the murder charge a case of “political correctness” and following an interview with Golsteyn’s wife in December 2018 on the president’s favorite news program “Fox & Friends,” Trump got involved.

Throughout all of this, Kelly offered unwavering support on social media for his chief of operations and helped fundraise for Golsteyn’s legal defense.

Meanwhile, ahead of what is often described as the most important presidential election in generations, a series of escalating disputes among IAFF leadership have increasingly spilled over into public view. Schaitberger, a key Biden ally, is locked in bitter in-fighting, grappling with leaks to right wing media, and confronting a federal investigation from a Justice Department that’s been unabashed in its willingness to use federal power for the president’s political gain. It comes as Biden is fighting Trump for votes among elderly and white working-class voters, where the firefighters union is a key validator, so much so that Trump has worked hard to undermine the value of the endorsement.

Things heated up earlier this year when Kelly accused Schaitberger of financial impropriety. Schaitberger has been blasted for lavish spending before, but the crux of the new allegations hinged on whether Schaitberger received pension benefits too early; prior to being elected IAFF president in 2000, he served as an IAFF union staffer for 24 years. The elected position and the staff position earn pension benefits from two separate funds, and Kelly charges that Schaitberger drew from his staff pension benefits too soon, in violation of federal law and union rules. The IAFF has pointed to legal counsel it received at the time of Schaitberger’s transition, and maintains they have done nothing wrong. Earlier this month federal authorities launched a criminal probe into the accusations, while the union’s executive board has launched an internal review.

Conservative media outlets have followed along, with the Washington Free Beacon and the Wall Street Journal publishing updates based on leaked union records and board discussions, including a lengthy memo about Kelly’s financial audit. They have framed their stories heavily around Schaitberger’s close relationship with Biden. (When Biden announced his candidacy for the White House in April 2019, the IAFF endorsed him almost immediately, long before any other union.) “Union Probe Finds Close Biden Ally Misappropriated Millions” read the first Free Beacon headline from March. “Firefighters Union Chief With Ties to Democratic Leaders Is Mired in Internal Financial Dispute” read the first WSJ story.Join Our NewsletterOriginal reporting. Fearless journalism. Delivered to you.I’m in

Schaitberger is up for reelection in January and is currently running unopposed, though Kelly is long rumored to want his job, according to members of the union. One IAFF leader from the Midwest, who spoke to The Intercept under the condition of anonymity for fear of retribution, said they were personally asked by Kelly earlier this year if they would support him in a bid for president.

Kelly, who was pushed by a fellow union member to answer for his own use of funds earlier this week, declined to comment for this story and referred all questions to attorneys at Wiley Rein LLP, the law firm representing the IAFF in the federal investigation. Wiley Rein attorney Robert Walker declined to comment, and Golsteyn did not return multiple requests for comment.

Brian Rice, the president of the California Professional Firefighters, told The Intercept he thought the leaks to the press violate Schaitberger’s entitlement to a fair process, and to him, “it’s nothing more than a veiled coup, a power struggle, aimed at IAFF leadership.”

In June, Rice joined three other state IAFF presidents — Bobby Lee of the Hawaii Fire Fighters Association, Robert Sanchez of the New Mexico Professional Fire Fighters Association, and Bryan Jeffries of the Professional Fire Fighters of Arizona — in writing a statement that their union’s democratic process was disrespected by leaks of “selective” and “incomplete” details to the “historically anti-union” news outlet — referring to the Wall Street Journal — instead of waiting for the union’s review of Kelly’s allegations to finish. “The IAFF’s reputation and power, which took over a century to build, is now at risk of being tarnished by the careless and selfish act of a few,” they wrote.

The Wall Street Journal reported in June that “union records” showed Schaitberger used a company credit card to download content from iTunes in 2017 and 2018. Only individuals at the level of General Secretary-Treasurer have access to those types of records, according to multiple sources with knowledge of the union’s expense reporting system. The outlet also reported on communications among the executive board, a body that includes 16 district vice presidents, Schaitberger, and Kelly.

Past reporting has also relied heavily on longtime critics of Schaitberger, including Frank Ricci, a former firefighter union president from New Haven who now works as a strategist for a conservative think tank, and Eric Lamar, a former Schaitberger aide who now maintains a blog that is sharply critical of his old boss and IAFF leadership. Ricci, a supporter of Trump, told the Free Beacon in March he “stand[s] in full support” of Kelly, who provided “official documents and a cogent argument that support his accusations.”

In a statement to the Wall Street Journal following the announcement of the federal probe, the IAFF said it would cooperate with the investigation and that “this action is part of a continued assault by a handful of individuals trying to tear down the organization for their own self-interest and personal retribution.”

Jeffries, of the Professional Fire Fighters of Arizona, told The Intercept that he and many of his colleagues were not just concerned by the specifics of the accusations, which he said “seem to be blatantly false” — but the timing of them.

“Not only is this happening in an election year for [IAFF] president and secretary-treasurer, it’s also happening in the election year for the president of the United States,” he said. “I can’t prove anything that there are connections but it sure feels like there are some very right-leaning elements within our union who are trying to dismantle the unbelievable vision and work of Harold Schaitberger when all he and IAFF have done has put wins in the win column.”

The union declined to make Schaitberger available for an interview but in an emailed statement provided to The Intercept, the IAFF said it was cooperating with the requests for documents associated with the organization’s staff pension plan, “strongly reaffirms that it did not engage in any wrongdoing [and] we look forward to a swift resolution of the reviews being conducted.”

Trump has made no secret of his ire toward the firefighters union for endorsing Biden, tweeting after the endorsement that he’s “done more for Firefighters than this dues sucking union will ever do” and that the membership of the union actually supported him. Because of that, as well as U.S Attorney General William Barr’s track record of using the federal law enforcement agency to go after the president’s enemies, some, including former Justice Department spokesperson Matthew Miller, have speculated that the federal probe may be politically motivated. The Department of Justice did not return a request for comment.

The launch of a federal investigation followed a written request sent to the FBI by Lamar, who wrote that the union’s leadership “have engaged in an ongoing pattern of defrauding the members while enriching themselves.”

On Tuesday, the day after The Intercept asked Lamar what he makes of those who say his blog posts in support of Kelly’s accusations may be politically driven, Lamar published a new post distancing himself from Kelly, blasting the General Secretary-Treasurer for submitting a $43,000 expense voucher that was late and without proper documentation. In the post, Lamar called Kelly’s action “some mix of immature, unprofessional and reckless.” In a video response published later that day, Kelly apologized for his behavior, pledged to post the receipts in question online, and said his team has “been overwhelmed trying to expose the finances of the IAFF.”

Buried within the new business expense disclosures Kelly published this week existed one notable charge from December 11, 2019: a $74 lunch expense at Old Ebbitt Grill in Washington, D.C., listed for him, Golsteyn, and Clint Lorance, another U.S Army soldier pardoned for war crimes by Trump. Lorance was convicted of murdering two Afghan men in 2012, and both Lorance and Golsteyn had appeared at the Florida Republican Party fundraiser with the president four days earlier.

Cincinnati Is An Epicenter of the Death Penalty. Its Prosecutor Race Could End That In November.

Originally published in The Appeal on September 15, 2020.

Cincinnati’s top prosector, Joe Deters, has been a driving force for the death penalty in a state that sentences more people to death than nearly any other in the nation. Deters, a Republican, has sent more people to death row than any other prosecutor in Ohio. And Hamilton County, where he has served as prosecuting attorney for more than two decades, is among the 2 percent of counties responsible for a majority of death sentences and executions in the United States. 

But zeal for capital punishment has been waning among Ohio conservatives. Last year, Republican Governor Mike DeWine issued a freeze on executions, and this year prominent  conservatives endorsed a call to repeal the death penalty.

Now Deters is running for re-election in a race that could go a long way in moving Ohio toward that repeal. But rather than reconsidering his stance, Deters is doubling down. His challenger, Democrat Fanon Rucker—a former judge, prosecutor, and civil rights attorney—has taken the opposite position, promising not to seek the death penalty and to support its abolition.

“I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,” Rucker told The Appeal: Political Report.

Unseating Deters could bolster advocacy against the death penalty, since pro-death penalty prosecutors and state prosecutor associations have played a powerful role in blocking criminal justice reforms in Ohio and elswhere. 

“One reason we’re not seeing more reform is because prosecutors wield tremendous political influence, because many elected officials are fearful if they pass repeals the district attorney will call them soft on crime,”  said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. “I do think the public is starting to catch up to the idea that [prosecutors] are holding the string.”  

Death penalty opponents have raised many objections to capital punishment, including that it’s a failed crime deterrent, that too many innocent people have been sentenced to death, and that people of color are disproportionately sentenced.  

In a case study published several years ago, legal researchers found statistically significant evidence that race has influenced the use of capital punishment under Deters’s leadership. Among other things, between 1992 and 2017, the scholars found, a case in Hamilton County with at least one white victim faced odds of being charged with capital murder at more than four times the rate of a similar case with no white victims, and a Black defendant who killed at least one white victim faced higher odds of receiving a death sentence than similarly situated defendants.

Growing criticisms have not deterred Deters, who sought the death penalty as recently as May in a case involving a man accused of deliberately crashing his vehicle into police cruisers and killing one officer. The county prosecutor told a Cincinnati public radio station at the time that his office doesn’t seek the death penalty often, “but when we do, we’re pretty good at it and we’re going to do our best in this case.” Deters did not respond to multiple requests for comment.

Deters, who is Catholic, was not even swayed when, in August 2018, Pope Francis came out against capital punishment in all circumstances. “No matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person,” the pope said.

Deters told a reporter that “the pope is wrong” on capital punishment. At the time Deters was defending the death penalty for Anthony Kirkland, who murdered five women between 1987 and 2009.

“My friends who are priests, they don’t know what we’re dealing with,” Deters told the local ABC affiliate. “We’re dealing with vicious, evil killers. And it is self-defense in my mind for the death penalty, and that’s why we seek it.” He then said if people don’t want the death penalty, then “get rid of it, I don’t care, but I swore to uphold the law and that’s what I’m doing.”

This isn’t Rucker’s first shot at becoming Hamilton County’s top prosecutor; in 2004 he faced off against Deters and lost. But the county, which was once solidly Republican, has been trending blue in recent years and voted for Hillary Clinton over President Trump by ten percentage points in 2016, even as Ohio on the whole has become more conservative. After a moderately successful 2018 midterm cycle, Democrats are eyeing the prosecutor’s office as one of the last remaining GOP bastions in the county.

A change in the office could have an outsize effect on the state level, which has seen major changes around death penalty politics over the last few years.

Ohio’s last execution was in July 2018. In February 2019, DeWine, who had recently taken office, announced he would be halting all executions until the state found a new method that could pass constitutional muster. A month earlier a federal judge had described Ohio’s lethal-injection method as akin to a combination of waterboarding and chemical fire. “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” DeWine said.

DeWine has not clarified his views oncapital punishment, though he was a sponsor of the 1981 bill to legalize Ohio’s death penalty. Many have speculated that, unlike Deters, DeWine’s strong Catholic faith has complicated his feelings on the issue.

Following DeWine’s pause on executions, other prominent Republicans started speaking out, including Ohio House Speaker Larry Householder who announced he’d become “less and less supportive” of the death penalty. Householder specifically raised concerns with its cost, and with the challenge of finding a feasible way to do the executions. (Two months ago,  Householder was arrested and ousted from government over a $60 million corruption scheme.)

Jessie Frank, a death penalty opponent with the Cincinnati-based Intercommunity Justice and Peace Center, said DeWine’s moratorium has been helpful, but warned that the governor will one day leave office and “it’s important to make sure executions don’t start back up again.” Senate President Larry Obhof, a powerful gatekeeper in the state, remains opposed to the death penalty’s repeal.

There has been growing support for incremental reforms, but even those have been opposed by county prosecutors. Bipartisan legislation to ban the death penalty for people with serious mental illness has been considered by Ohio lawmakers for the last five years, and even passed the state House of Representatives in 2019. But prosecutors have lobbied hard against the legislation, and most recently defeated it in the state Senate. Victor Vigluicci, president of the Ohio Prosecuting Attorneys Association called the legislation “dangerous” and “not necessary to address any actual problems.”

Another major political development came in February, when a new group formed: Ohio Conservatives Concerned About the Death Penalty. The group, which is one of 15 chapters nationwide, rallied over 35 of the state’s conservative leaders, including former Governor Bob Taft, former Attorney General Jim Petro, and former U.S. Representative Pat Tiberi, to endorse the repeal of the death penalty. 

“Ohio is really coming from behind, even as of two years ago they weren’t really on the radar for states that might repeal the death penalty,” said Cox, the Conservatives Concerned About the Death Penalty national manager. “Wyoming has come very close in the last year [to repealing] and we’ve repealed the death penalty in New Hampshire and Colorado both in the last two years. I think if you were to see a state like Ohio repeal it, that could really have a domino effect on the region.” Twenty-two states to date have abolished the death penalty.

“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions. Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election. But she says advocates are gearing up to push through a repeal bill in the next legislative session.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty. A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole. And the next thing you know we won’t have life without parole either.”

Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.” She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes. 

Rucker told the Political Reporthe would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty. “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

If elected, Rucker has no plans to disassociate from state and national prosecutor organizations, but said his general focus would be on Hamilton County. He’s campaigned on eliminating cash bail for nonviolent offenses, establishing a conviction integrity unit, and creating a re-entry court to help reduce recidivism.  Frank, whose nonprofit Intercommunity Justice and Peace Center also doesn’t endorse candidates, said the prosecutor election could have “huge” ramifications for the death penalty.

“I don’t think most people in Hamilton County know much about the death penalty,” said Frank. “And I would say most people definitely don’t know that we are one of the biggest drivers of it.”

You Don’t Have to Tell Your Employer About a Serious Diagnosis—But You Still Might Want To

Originally published in GQ on August 31, 2020.
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On Friday, Actor Chadwick Boseman died of colon cancer at age 43. From an announcement posted to his Instagram, the public learned the star had originally received the diagnosis in 2016, and that he had filmed many of his best-loved films while undergoing chemotherapy and surgeries to fight the disease.

The news came as a shock not only to the general public, but even to directors, producers and colleagues he had worked closely with over the last four years. Sarah Halley Finn, the veteran casting director who picked Boseman to play T’Challa in Black Panther, told Vulture she had no idea the actor had cancer as the blockbuster was filmed in 2017. And in a tribute on Saturday, Spike Lee said it never crossed his mind while on set with Boseman. “I never, ever suspected that anything was wrong,” said the director of Da 5 Bloods. “No one knew he was going through treatment.”

The decision of whether to disclose a serious diagnosis like cancer to an employer is frequently a fraught one. Under federal law, no one is required to tell their employer as long as they assume they can reasonably do the work required, but disclosure is necessary to trigger the protections of the Americans with Disabilities Act, the main federal statute protecting cancer patients in the workplace.

Even if workers disclose, employers are limited in what they can ask about the cancer and must keep any medical information they learn confidential. Reasonable workplace accommodations for cancer patients include leaving for doctor’s appointments, time off to recover from treatment, and periodic breaks during the work day.

That Boseman kept his private life under wraps does not mean he never sought any accommodations to deal with his illness in the workplace, and he was potentially able to negotiate well beyond the legal minimum. “Given that it’s Hollywood, I could imagine a contract that [Boseman] enters into with a studio setting out his specific needs and binding anyone to secrecy,” said Sasha Samberg-Champion, a civil rights attorney who specializes in disability law. “If you have that kind of stature and a sophisticated agent you could work those things out. And the employer might not even be allowed to know why you need certain things.”

Gordon Firemark, a Los-Angeles based entertainment lawyer, told GQ that it’s “pretty typical” for an actor’s agent or manager to negotiate special accommodations for their clients like private dressing rooms, separate facilities, transportation or special foods. “If an actor of his stature is starring in a movie and he can’t be there because he had a chemo session, they’ll often just schedule around them, and that could be kept very quiet,” said Firemark.

For many workers who may have less negotiating power, having cancer in the workplace, even with the protections of the A.D.A., can be extremely difficult. To start with, the 30-year-old law does not protect independent contractors or those who work in businesses with fewer than 15 employees. But even employees covered by the law can still face discrimination, as some courts have ruled that extended periods of leave for cancer treatment can be legitimate grounds for termination.

Ann Hodges, a University of Virginia law professor and co-founder of CancerLINC, a nonprofit that helps cancer patients and their families navigate legal issues, said employers are often more willing to accommodate people working in higher-wage jobs.

“Sometimes it’s because they’re just not as easy to replace, or they may have more power in the organization,” she said. “Often those patients also have jobs that can more easily be done remotely.” According to the Economic Policy Institute, higher-wage workers are six times as likely to be able to work from home compared to lower-wage workers.

Hodges, a cancer survivor herself, points out that many Americans also lose their health insurance if they lose their jobs—a problem in the best of times, and an acute crisis for someone in treatment for cancer.

As a member of SAG-AFTRA, the union for film and television actors, Boseman would have had access to the union’s vaunted healthcare plans. But David White, the national executive director of SAG-AFTRA, noted that even these plans have been under strain—they’re “not immune” from the larger issues plaguing America’s healthcare system. Earlier this month, in light of projected deficits in the tens of millions of dollars, the entertainment union announced it would have to tighten eligibility requirements and raise premiums going forward. More than 17,000 people have signed a petition in protest.

“It’s a constant struggle to make sure that we are maximizing access for people like Chadwick and for people who can only dream of having Chadwick’s level of success,” White said.

Some Teachers Are Being Required To Come To School — To Teach Virtually

Originally published in The Intercept on August 28, 2020.
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KATHY ROKAKIS, a 62-year-old high school French teacher in Michigan, is dreading her return to school next week.

Students in her Wayne County school district — Plymouth-Canton Community Schools — were originally going to be given the option to return to in-person classes or do remote learning, but earlier this month her school board voted to start the school year 100 percent virtual. “A lot of teachers were really relieved for so many reasons,” said Rokakis.

But two days after the school board decided the district would go fully remote, Superintendent Monica Merritt announced that teachers would still be coming into school to teach children virtually. “There wasn’t anything that had been discussed, we were just told that’s how it would happen,” recalled Rokakis. “We were basically blindsided.”

In a letter sent last Friday to educators, Merritt defended her decision by saying, “We anticipate how hard it will be for many students to continue learning in a remote space when they miss their school community so much. It is with this lens, focused on what is best for our students, that has resulted in our expectation that our staff will teach remotely from their classrooms.” Merritt did not return requests for comment.

Teachers have continued to press administration for reasons the benefits of this arrangement outweigh the public health risks of coming into school during the coronavirus pandemic.

“The reasons have been ridiculous. One is so that students will be able to see their classrooms, so that when they come back face-to-face they’ll feel more comfortable,” said Rokakis. “Another is they say so we’ll have anything that we need accessible to us, and they keep using the scenario of if we have to do a science experiment. But I don’t teach science, and the things I need are very accessible to me here at home. And now I’m expected to teach French in a mask?”

In light of all this, some teachers in Plymouth-Canton have applied for family and medical leave to avoid going back, and others are retiring early, according to Rokakis. “If I could, I would, but I can’t because I carry the health insurance for my family,” she said. “I’m feeling very uncomfortable. To me, there needs to be more grace. This is not a normal time and people are trying their hardest.”

Across the country, as schools in some states have already reopened and others are planning to do so in the coming weeks, school districts and board members are grappling with and continually revising their back-to-school procedures. While many schools have opted to begin the year fully virtual given the risks presented by Covid-19, educators in some of those districts are still being required to teach from their classrooms. Even with requirements to wear masks, many teachers feel coming into school buildings is an unnecessary risk during the pandemic, for reasons including poor ventilation, slow coronavirus testing, and unreliable levels of personal protective equipment.

LATE LAST WEEK, Jeffrey Riley, the Massachusetts Commissioner of Elementary and Secondary Education, released guidance saying it’s the state’s “expectation” that all teachers and critical support staff will report to schools to teach each day if their district is doing remote learning. Reasons Riley listed included “provid[ing] more consistency” for students, more reliable internet access and faster IT support, making it easier to collaborate with colleagues, and making it easier for administrators “to monitor the level and amount of instruction students receive.”

The president of the Massachusetts Teachers Association, Merrie Najimy, released a blistering statement in response to the state’s recommendation, accusing Riley of having a “fundamental lack of trust” in teachers to do their jobs without being supervised.

“It is paternalistic and punitive and has no bearing on the quality of education that the real experts — the educators — provide so masterfully,” Najimy wrote, urging for districts to reject the state’s guidance. “Educators across the Commonwealth are focused on fully redesigning remote instruction to make it more effective, while pushing school districts and the state to make the changes needed to gradually return to in-person instruction. Commissioner Riley should be advocating for the resources that educators and districts need to achieve these goals rather than putting the thumbscrews to teachers to get them to return to school buildings before it is safe to do so.”

Scott McLennan, a spokesperson for the union, told The Intercept that districts and unions are still negotiating reopening plans, so they’re still “waiting to see how it plays out.” At least a few large school districts in the state, like Springfield and Worcester, have said they will not require teachers to come to school for remote instruction.

Joanna Plotz, an elementary ESL teacher in Chelsea, a city with among the highest rates of Covid-19 infections in the state, is hoping her union succeeds in blocking the recommendation. “In an ideal world I’d obviously love to be in a classroom, but it just doesn’t feel worth it,” said Plotz.

If teachers at Plotz’s school are required to return to school, Plotz would be sharing a classroom with another educator, who has a 3-year-old daughter. Many teachers would like the option to go in. “I might want to go in sometimes. I live in a 500-square-foot-apartment, and Sundays it might be good to go in and prepare things, but I’d only want to do it if the other teacher and her daughter wouldn’t be there,” said Plotz. “And I do have some coworkers who are going crazy at home. But the way [the state] is doing it just says, ‘We don’t trust teachers.’”

Reached for comment, Colleen Quinn, a spokesperson for Commissioner Riley, defended the guidance. “In remote scenarios, instruction from the classroom is the most effective educational environment,” she said.

IN OTHER PARTS of the country, some teachers are already back at school providing remote instruction to students at home.

Erin Taylor, a middle school teacher in Colorado Springs, Colorado, said she still has not received a real explanation from her district as to why educators have to be teaching remotely from their school buildings.

“As teachers we always have to have an answer when our students ask us, ‘Why do we have to learn this?’ and I have not heard any answer from the district,” said Taylor. “It feels like a lack of trust, a surveillance thing, and I would totally be open and love to hear how they arrived at this decision, even if I disagreed with it. But we haven’t even gotten that.”

Devra Ashby, a spokesperson for the school district told The Intercept that it is their goal “to provide a standard professional instructional delivery setting and enhanced teacher classroom performance” and that teachers “have the most resources at their fingertips when they are in their classrooms.” Ashby added that one-third of their students will be coming into the building for hybrid learning and that their standards for education have not changed. “We must deliver industry-standard instructions in a professional academic setting, which promotes student academic potential and achievement,” she said.

Taylor said there has been mixed messaging around masks. Colorado has a statewide mandate that says individuals must wear masks when inside public places, and she says her school district has also advised educators to wear masks at all times, but that policy is not being enforced at every school.

“I’ve been back at school for over two weeks now and I just see a lot of people not wearing masks even though that’s supposed to be the official policy,” she said. “I’ve walked past people where there are meetings going on and a bunch of people sitting around the table not wearing masks.”

Taylor, who spoke to The Intercept on the second day of the school year, said she’s trying to be empathetic but is worried about how unsafe she already feels.

“We always talk as teachers about how the beginning of the year is the time to reinforce routine and rules and make sure you’re being clear, because with kids, if you don’t enforce a rule at the beginning, it becomes really hard to get that [compliance] later on,” she said. “It just feels like, well, if we’re not all wearing masks on Day 2, then I don’t have much hope for the year.”

Shawntel Shirkey, a paraeducator in Wichita, Kansas, also has to come into her high school for remote instruction. Earlier this month, the Wichita school board approved in-person learning for elementary schools and remote learning for middle and high school students.

Shirkey thinks given the conservative political climate in Kansas, her school board “made the best decision I could hope for.” At least one teacher at her school has tested positive for Covid-19 so far, but she praised her school for at least giving all staff members cloth masks, ample amounts of sanitizer and disinfectant, and the option to get face shields. “The district itself is not being very forthcoming but I’m lucky that my principal is being transparent about if someone has tested positive,” Shirkey said. Like in Taylor’s school, masks mandates don’t always mean staff actually wears them.

Shirkey thinks it’s been “pretty split” among teachers about who wants to be providing remote instruction from school. “Some educators definitely see the irony of requiring teachers to come into buildings that the district has deemed unsafe for students,” she said. “But others just think the pandemic is ridiculous and as soon as the election is over, coronavirus is going to go away.”

On the MA-08 Primary

Originally published in The Intercept on August 16, 2020.
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WITH JUST OVER two weeks left until the Massachusetts Democratic primary, progressives across the country are focused on the high-profile primaries of Sen. Ed Markey, who is fending off a challenge from Rep. Joe Kennedy, and Holyoke Mayor Alex Morse, who is running against House Ways and Means Chair Richard Neal.

Elsewhere in the state, other progressive challengers are struggling to attract similar attention. In the crowded House race to replace Kennedy, two progressives appear tied for third behind two more conservative Democrats. And in the Boston-area 8th Congressional District, Robbie Goldstein, a 36-year-old primary care physician, is scrambling to get his name out and convince voters he’s not running a long-shot bid.

On Wednesday, Goldstein’s campaign released a poll claiming he trailed just 7 percentage points behind nine-term moderate incumbent Rep. Stephen Lynch. Conducted last weekend by Lincoln Park Strategies, the poll found that 29 percent of likely voters remain undecided. However, Lynch held a clear advantage when it came to name recognition, with roughly 70 percent of voters knowing who he was, compared to 40 percent recognizing Goldstein. Still, the pollsters concluded Goldstein “has a real chance to win” because among undecideds, 42 percent said they’d prefer to vote for a more progressive candidate, 71 percent said they’d prefer a pro-choice candidate, and 73 percent said they’d prefer a candidate who backs Medicare for All.

Goldstein’s case against Lynch rests on substantive policy differences, including Medicare for All and reproductive rights. The incumbent opposes single-payer health care, and while Lynch has criticized federal efforts to defund Planned Parenthood and “draconian” state-level abortion restrictions, he himself identifies as pro-life and believes ending pregnancies should be “legal and rare.”

Goldstein’s campaign argues that this race presents a viable opportunity to bring another progressive to Congress, even if Lynch is not as influential as other incumbents who’ve been toppled, like Reps. Joe Crowley and Eliot Engel. “I am constantly confounded by progressives’ infatuation with claiming these big headline victories instead of just winning and building power,” said Karen Clawson Cosmas, Goldstein’s campaign manager. “We can replace a do-nothing moderate Democrat with someone who is actually a champion of the issues of the progressive wing of the party.”

Lynch has long been the most conservative member of the Massachusetts delegation, though he argues that’s all relative for their deep blue state. “Calling me the least liberal member from Massachusetts is like calling me the slowest Kenyan in the Boston Marathon,” Lynch quipped a decade ago in the Boston Globe.

Goldstein is hoping for a surge in the final weeks — similar to what Cori Bush saw recently in St. Louis, and Jamaal Bowman in New York — though Goldstein trails them both in fundraising and major endorsements, and he has far less name recognition than Bush, a Ferguson activist who ran for Congress in 2018 and was featured in a documentary alongside Alexandria Ocasio-Cortez. By the end of June, Goldstein had raised just $292,000, next to Lynch’s $660,000, though Goldstein did raise more in June than in the previous five months combined.

To some extent Goldstein is banking on complacency from his opponent. In the last quarter Lynch raised just $45,000, and has spent no money to date on TV or Facebook ads. Also, unlike some of his Massachusetts colleagues running for reelection, Lynch has had no members of Congress campaigning on his behalf. Goldstein says this is a reflection of his opponent “not having any friends left in Washington.”

Goldstein, meanwhile, is backed by left-wing groups like Indivisible, Our Revolution, Progressive Massachusetts, and even the Boston Teachers Union. Justice Democrats, which endorsed Morse, has stayed out of this primary, after having considered backing another progressive physician, Mohammad Dar, who entered the race almost a year before Goldstein did, but dropped out early due to personal reasons.

Lynch’s campaign spokesperson, Scott Ferson, said they are confident about the representative’s standing in the district and resources available left to campaign. “We have a voter engagement plan in place, and he’s not fundraising just to stockpile money,” Ferson said. “He’s doing things in a way that fits this race.”

LYNCH, WHO GREW up poor in South Boston public housing and spent two decades as an ironworker, was first elected to Congress in 2001. He represents a district that over the last two decades has grown both more diverse and more gentrified. Following the 2010 Census, Lynch’s district boundaries were redrawn, and while Joe Biden won every city and town in the 8th Congressional District on Super Tuesday, Goldstein says there’s a real path to victory, since Warren and Bernie Sanders racked up more votes in the district overall than Biden.

An Irish Catholic proud of his ties to blue-collar workers, Lynch has voiced concerns about the party drifting too far left and is critical of the term “socialism,” which he warns could scare off older voters. Ferson argues that Lynch remains “well-in-tune” with his district and has handily defeated candidates who have run to his left in the past. In 2018, Lynch was challenged by Brianna Wu, a software engineer who ran on Medicare for All and tackling income inequality, and beat her with 71 percent of the vote.

The sharpest contrast between the two candidates revolves around health care. Ironically one of Lynch’s biggest vulnerabilities is that he was just one of 45 House Democrats to vote against the Affordable Care Act in 2010, and of those Democrats, only three remain in Congress. Rep. Dan Lipinski, one of the three, lost his primary in March to progressive challenger Marie Newman.

At the time, Lynch explained he voted no because he felt the final version gave too much power to the insurance industry and would lead to spiking prices, and he opposed how the bill taxed union health care plans and eliminated opportunities for state public options.

“I don’t think [Lynch] is as conservative as Lipinski, but I do think the thing that sticks with people here is him having voted against the Affordable Care Act, given how much activism there was around that,” said Jonathan Cohn, a leader with Progressive Massachusetts, a statewide advocacy group. “People remember that.”

Lynch, for his part, has criticized Goldstein for trying to “rip out the ACA root and branch” and says he’s proud of the work done to repeal the tax on union health care plans. Goldstein “wants to dismantle the ACA and get rid of it, so if you ask me who really supports the ACA, that’s Stephen,” said Ferson, Lynch’s spokesperson.

Lynch, who has long self-described as an anti-abortion Democrat, notably began moving left in 2013, when he ran against Ed Markey for the Senate seat left open when John Kerry became secretary of state. As a state legislator in Massachusetts, Lynch tried to ban abortions after 24 weeks, and in Congress he voted to support the “partial-birth abortion” ban. But in 2013, Lynch made clear that while he was pro-life and wanted abortions to remain “rare,” he would seek to protect Roe v. Wade and vote against any Supreme Court nominee who wanted to overturn the decision.

He’s moved even further left in recent years. In 2019, he wrote a Boston Globe op-ed condemning states for their new abortion restrictions and Congress for trying to defund Planned Parenthood. “If these recent developments define the ‘pro-life’ movement, you can count me out,” he wrote. Lynch received 100 percent ratings from NARAL Pro-Choice America for the last five years, but neither NARAL nor Planned Parenthood is endorsing in the primary.

Goldstein, who has also been endorsed by local chapters of the Sunrise Movement, is campaigning on being more aggressive on climate change than the incumbent. Lynch was an original co-sponsor of the Green New Deal, though has said the 10-year timetable outlined in the resolution to transition completely off fossil fuels is “unrealistic.” Lynch originally was a strong supporter of the Keystone Pipeline, but reversed his position on that in 2013. In a recent primary debate, Lynch urged viewers to look at his ratings from the League of Conservation Voters, where he has a “lifetime score” of 95 percent.

Goldstein has repeatedly blasted Lynch for once calling climate change an “elitist” issue, a charge based on a 2017 CommonWealth magazine article, though the full quote and context is not included in the piece. Lynch has denied using that descriptor.

While Lynch’s campaign disputes that he used that exact word, Ferson, his spokesperson, linked the sentiment to Lynch’s background as an ironworker and the congressman’s belief that lawmakers shouldn’t be “cavalier” when discussing job loss associated with transitioning off fossil fuels. “I think it’s in the context of who do we need to include when we’re having those discussions,” said Ferson. “And he supports the Green New Deal in part because it’s so focused on creating new jobs.”

Shawn Zeller, the author of the CommonWealth article who now works as an editor at CQ Roll Call, told The Intercept that Lynch had made the reference in the context of his support for Tim Ryan for House speaker. “Trump had just won the presidency and Lynch was among those who felt Pelosi was leading the party too far left,” Zeller wrote in an email. “In an interview with me, he mentioned climate change as an example and said he preferred Democrats focus on lunch bucket issues to help the working class.”

On issues of immigration, there are differences between the candidates too. Over the objections of President Barack Obama in 2015, Lynch voted to tighten vetting standards for refugees from Iraq and Syria, and in 2018 he voted in favor of a resolution lauding Immigration and Customs Enforcement, even when 133 House Democrats just voted “present.” While Lynch has condemned President Donald Trump’s child separation policy and backed a 2019 resolution to establish standards of care at border facilities, some of his constituents say he’s moved too slowly, and been too quiet overall.

“He’s just not interested in engaging with constituents who are looking for someone with a sense of urgency,” said Tonya Tedesco, a Boston activist who organized trips to Lynch’s district offices last summer to press him on immigration. “We are in crisis mode and I do not know that he recognizes that.”