Wednesday, January 20, 2016

Whistleblower Fights New York Officials to Enforce Their Own Child Safety Laws



Are New York city and state officials doing enough to protect public school students?

Kathy Cole says no.

The co-owner of a gymnasium equipment company has been battling with city and state officials to comply with their own child safety laws for over a decade.

Her crusade stems from the crushing deaths of three students in New York and New Jersey over several years.

The problem is motorized partitions meant to close off sections of larger gymnasium spaces. Once set in motion, if safeguards aren’t put in place, and/or the devices aren’t properly monitored, they can shut on children causing fatal injuries.

In 1976 a boy in New Jersey was crushed and killed in the school gym electric partition. James Pesca, 12, was found lifeless, trapped between the cement gym wall and the partition.

In 1991, Deanna Moon met a similar end in her Long Island school. The nine-year-old got caught between the partition when she tried to slip through. Staff could not retract the wall off of Deanna’s neck so fire fighters had to use the jaws of life. It took 27 minutes to free her. Deanna’s mother was called to the scene but was restrained from coming inside and seeing what was happening. The elementary school student lingered in a coma and died nine days later from her injuries.

In 2001, twelve-year-old Rashad Richardson was looking for a teacher to give him a hall pass when he was crushed between a wall and a motorized room divider in his Ithaca, N.Y., school. The gym teacher had started the motorized door, defeated a spring-loaded safety switch, then walked away.

The first two incidents prompted the New York state legislature to require school staff be trained in the usage of these devices. However, it wasn’t until Rashad’s death that safety mechanisms were required to be installed in these partitions. New York is the only state with these provisions.

Since 2001 New York schools have been required to install Life Safety Detection Systems on these partitions to stop them from operating if a child is sensed in their path. Districts are also required to train staff in proper usage of these devices and to ensure staff observe the partitions until they are fully closed.

However, Cole, who owns Gym Door Repairs with her husband, Stephen, says many schools are not buying these mandated devices, correctly installing them or properly training staff. Her company invented and distributes these safety mechanisms.

When she brought this noncompliance to the attention of city and state education officials, she claims she was silenced.

“I was told not to bring it up publicly by high level education officials or I would be put out of business,” she says.

“I was told that compliance with the law was a financial decision and that if another child is killed their family will be compensated for their loss.”

The cost for implementation for these devices is about $37 million, most of which would be paid by New York State Building Aid. Cole’s safety mechanisms were installed in 5,000 facilities – the majority of state and city schools. But many still don’t have them.

Cole estimates there are hundreds of schools missing these devices. They were funded just not installed, she says. Still other schools have devices in place but they have fallen into disrepair and instead of being fixed are simply bypassed putting thousands of children at risk of death or injury.

“You can walk into any 10 New York City schools and 9 would have no training and no maintenance,” she says.

When Cole persisted in bringing these issues to various New York government officials, city and state public schools stopped using her company. The business, founded in 1976, specializes in safety inspection and preventative maintenance service, supplies and repairs to help keep school facilities in compliance with building and life safety codes.

“I was a vendor for over thirty years without incident until I reported this noncompliance,” she says.

“I was told they had had enough of my writing and complaining to the elected officials and that I was now considered a rat…That I would be out of business in New York State and that I had poked my nose where it did not belong.”

The battle has gone to federal court where Cole is suing for violation of her First Amendment rights to free speech.

Her suit implicates both Andrew Cuomo and John King. Cuomo was state Attorney General at the time and is now the state’s Governor. King was state Commissioner of Education and has risen to U.S. Secretary of Education.

The problem is one of accountability. In New York, the state Inspector General has no jurisdiction over the Department of Education. In fact, the Department of Education is the only branch of state government without an inspector general. So the Attorney General is responsible for both investigating and defending the Department of Education. When Cole first brought this issue up, that was Cuomo.

“It’s a conflict of interest,” she says. “There really is no where to go to report fraud and abuse at the highest levels. They investigate themselves.”

Cole condemns Cuomo in both his role as Attorney General and Governor for taking no action to fix the problem. She first brought the matter to his attention in early 2009 and has met with him several times since.
“He let the children of this state be intentionally  endangered and did nothing to protect them.”

King, too, was aware of the issue but did nothing as Commissioner of Education to help enforce the law protecting children, according to Cole.

“King has been there overseeing this,” she says. “He let this noncompliance continue.”

Cole has numerous suits in the courts alleging civil conspiracy, intellectual property theft and tortious interference with her business.

Since the first suit was filed, Cole has watched as long-standing contracts that had been awarded to her company were instead given to a competitor – Young Equipment Sales. As a result, her business has gone from 14 employees to two.

“My business has been devastated,” she says. “It’s disgraceful what’s been done. I’m not looking for sympathy, but I want justice.”

The financial loss to the Great River business owner caused her to further investigate state and city education practices. She implemented numerous Freedom of Information Act requests. In doing so, she discovered further startling school purchasing practices.

Many Long Island districts use cooperative bidding programs called the Board of Cooperative Educational Services (BOCES) to find competitive prices for school supplies. However, Cole found that using this system has resulted in paying much more for goods and services than necessary.

For instance, her data shows that districts using Nassau BOCES are paying $996 for a whiteboard available online for just $740. Also, a security card for charging laptop computers costs $1,910 through Eastern Suffolk BOCES, while it is listed online for just $1,560. Meanwhile, a 12-foot cafeteria table that you or I can buy online for $1,623.99 costs schools $2,275.99 through Nassau BOCES.

Cole’s findings are consistent with a 2012 state comptroller’s report on the cost-effectiveness of BOCES. The report audited four central New York BOCES and found that their costs for services were roughly 56 percent higher than costs for the exact same services being paid by districts not using the service. The availability of BOCES aid does not encourage BOCES to minimize costs or persuade schools to demand cheaper choices, the report concluded.

Eastern Suffolk BOCES responded to the allegations by releasing a statement saying in part, “At times, it may be possible to find a lower price for a product from an alternative source that does not meet the above criteria.” That criteria includes being able to “comply with all specifications, pay prevailing wages, be insured and be able to provide products and services to the large pool of participants in the Eastern Suffolk BOCES bidding program.”

And so it goes.

Meanwhile, Cole continues to fight this battle in the courts and is optimistic she’ll eventually receive justice for herself and the state’s children.

No young person should have to worry about being killed in school equipment and their parents shouldn’t have to worry about the state wasting their tax dollars.

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