Thursday, March 15, 2018

Stormy Weather

A sekret ceases tew be a sekret if it iz once confided. . . .
— Josh Billings: His Sayings

From time to time, legal issues are presented by, what in grade school, would have been referred to as “current events.” And it is current events that have given rise to a number of inquiries from readers asking me to explain “confidentiality agreements.”

A confidentiality agreement is typically entered into when people are possessed of information about a given subject that is known only to them, and they agree, for whatever reason, that the information will not be shared with any third party but will remain a secret among the parties to the agreement.

Let us assume that a friend and I have conspired together to rob a bank, and believe it is in our mutual interest to enter into a confidentiality agreement, pursuant to the terms of which each of us agrees to never disclose the terms of our plan to rob the bank nor our respective identities. Assume I agree to be the driver of the getaway vehicle. If my colleague is arrested and I am not, and my colleague gives the police my name, that is a violation of our confidentiality agreement and I will be able to sue my colleague for breach of the confidentiality agreement.
Now that my readers understand how confidentiality agreements work, here is an example of a confidentiality agreement that might fall under the heading of “current events.” The facts of my example, like my bank robbery example, are purely fictional. Our exemplars, for purposes of this discussion, are called “Tempest” and “Cassius.”

Tempest happens to be in the sex trade, and makes movies that appeal to those with prurient interests, and engages in sexual acts with fellow actors and, on occasion, people who are willing to pay for sexual relations with her. She is quite discrete which is why she is known publicly only as “Tempest.”

During her professional life she occasionally encounters people who, having seen her movies, hope to get to know her better. If the person she encounters is attractive, she may willingly accompany him to a private location where she bestows her favors on him either with, or without, compensation, depending on how much fun she had during the encounter. At the conclusion of the encounter she and her partner may enter into a confidentiality agreement in which each of them agrees not to disclose any of the details of the encounter to ANYONE at any time. They might do that because Tempest does not want it known in professional circles, that she occasionally performs with amateurs. Cassius might want the agreement because without it Tempest might comment on his performance and even disclose, to Cassius’s great embarrassment, that his hands are not the only appendage he has that is small, even when excited. Such a confidentiality agreement, if entered into, is completely enforceable by either party.

Now let us assume that there is no agreement and they part as friends. Some years later Tempest decides to share details of the encounter with a reporter from a muckraking publication and gives a lengthy description of the encounter in which she includes a description of Cassius’s performance during their encounter saying: “It was one position, what you would expect someone his age to do. It wasn’t bad. Don’t get me wrong.”

Many years later, events transpire that cause Cassius to regret the absence of a confidentiality agreement. He asks his lawyer to prepare what might be called an “ex post facto” confidentiality agreement in which both he and Tempest agree to keep confidential that which, by now, is known about all over the world, although perhaps a few details are missing that Tempest overlooked when being interviewed.

Cassius’s lawyer is not a very good lawyer. He once worked as a veterinarian. When Cassius asks him to prepare a confidentiality agreement, the lawyer fails to tell his client that one of the things he learned as a veterinarian, is that on the day before you plan to operate on a cat, you put the cat in a bag so that you will know where it is when it’s time to operate. If the cat gets out of the bag you may not be able to recapture it in order to perform surgery. Had Cassius’s lawyer been a good lawyer, he would have shared that information with Cassius and that would have been the end of it. Instead, Cassius’s lawyer sends Tempest a check for a great deal of money and the EXACT confidentiality agreement Tempest and Cassius should have signed 12 years earlier, and before she gave her interview and all the details of her encounter with Cassius were known all over the world. Cassius hoped that by paying Tempest money, the cat would crawl back into the bag and everyone would forget the interview she had given a few years earlier. The lawyer even went to court to try to get the court to put the cat back into the bag. What is obvious to all but the truly obtuse, is that neither the court nor anyone else can put the cat back in the bag.

Question: Why is everyone trying so hard?

Thursday, March 8, 2018

The Table

And homeless near a thousand homes I stood,
And near a thousand tables pined and wanted food.
— William Wordsworth, Guilt and Sorrow

It doesn’t seem fair. And the unfairness is especially apparent when it’s put in context. It is not as though he wanted to spend thousands of dollars on a personal phone booth, or use government funds to pay for charter or first class air travel around the world. And the criticism is not directed at him because he supports cuts to HUD programs contained in the Trump budget. Nor is it because he eliminated language in the HUD Mission Statement that promised inclusive and discrimination-free communities. Nor is it because he is opposed to equal rights for the LGBTQ community. It’s just because his wife was trying to do him a favor and all she wanted was a simple dining room table befitting the Secretary of Housing and Urban Development when entertaining guests in his office. Everyone would agree that food tastes better when nicely served.

The reports about Ben Carson and his presumed profligacy, infuriated people who work in the White House. As a result, they intend to assert more control over expenses incurred by HUD when it comes to spending taxpayer money on office improvements and the like. They may, of course, have been especially sensitive about a $31,000 dining room table because they were thinking about the fact that Mr. Trump’s Fiscal Year Budget proposal, among other things, cuts the Department of Housing’s funding by $8.8 billion, or 18% of what it had been the preceding year, and cuts the Supplemental Nutrition Assistance Program, known as food stamps, by $17.2 billion. In light of the size of these cuts, Ben’s dining room table seems fairly insignificant. And when it comes to other cabinet secretaries and their profligacies, Ben seems like a bit of a piker. Mr. Trump has filled his administration with people who REALLY know how to spend money. Dining room tables would be beneath them.

The most profligate is Scott Pruett. Scott, the Administrator of the Environmental Protection Agency, has to get credit for being among the most creative when it comes to extravagant spending. Scott, like all people in his position, has a private office. According to reports, in addition to a private office, he has had biometric locks installed on his office doors that only permit someone to enter his office if the would-be entrant’s fingerprints are recognized by the lock. This is to prevent the person who has casually entered the secure building in which Scott’s office is located and has passed by armed guards, a metal detector, and an X-Ray machine, from casually wandering into Scott’s office by mistake. In addition to the security protections and the presence of armed guards patrolling the halls of the EPA, Scott has had a phone booth installed in his private office. The phone booth cost $24,750, almost as much as Ben’s dining room table. Whereas the dining room table was needed for gracious dining, the phone booth was installed so Scott could have privacy when talking on the phone in his private office. Scott’s greatest extravagance, however, is not wanting to talk in a phone booth in his office. It’s his flying habits.

Scott almost always charters a plane or flies first class when he flies commercially, because people in the cheap seats have on occasion been rude to him. He also takes advantage of his position to commandeer army transports. On one occasion, he and his staff took a military plane from Cincinnati to New York City so they could catch a commercial flight to Europe. The cost of the military plane was $36,068.50, $5,000 more than Ben’s dining room table. On March 1, 2018, Scott let it be known that on a podcast set to air on March 5 he would announce that “there’s a change coming” which probably means he’ll be sitting in the back of the plane with the people who have on occasion spoken rudely to him. I assume one of his many armed guards can admonish anyone who addresses him rudely. And Scott is not, of course, alone in his profligate ways. Cabinet secretaries also enjoy the perks of air travel that they plucked from the government for themselves or their spouses. Indeed, a fondness for luxurious air travel has been the hallmark of, if not a requirement of, the appointment to a position as secretary of most anything in the Trump administration.

Tom Price, Health and Human Services Secretary, spent more than a million dollars during his 7 ½ month tenure, for private charter and military flights, or $133,333 per month. Ryan Zinke, Interior Secretary, on one occasion spent $12,000 flying from Las Vegas to Montana. Steve Mnuchin, treasury Secretary of Wizard of Oz fame, spent $811,800 on air travel in the first 12 months he was in office or $67,650 a month.

A review of the amounts the peripatetic cabinet secretaries have spent on airfare, makes a dining room table seem like chicken feed. Poor Ben is the one taking the rap. And it wasn’t even his fault-it was Candy’s doing. She is Ben’s wife and it was she who assumed responsibility for making sure that his office was up to her standards. We should all be blessed with such a thoughtful wife.

Wednesday, February 28, 2018

The In-Laws and the President

The law is the last result of human wisdom acting upon human experience for the benefit of the public.
— Samuel Johnson, Anecdotes of Samuel Johnson

Herewith a little known fact. At least two of Mr. Trump’s positions on immigration, and the abuses that he believes our lax rules have led to, may be the direct result of his personal experiences. The first is his objections to illegal workers who come into the country and take away jobs from hard working United States citizens.

A White House paper was released September 5, 2017, with the catchy title: “President Donald J. Trump Restores Responsibility and the Rule of Law to Immigration.” In the section entitled: “Protecting Our Workers,” the paper says that the goal is to “encourage companies to raise wages and recruit American workers. This means stopping the practice of hiring illegal workers who unlawfully deprive American workers of jobs and higher wages.” When that paper was written, Mr. Trump had no idea that within three months following its release, a court would unseal the terms of settlement of a trial that took place 20 years earlier involving claims for lost wages filed by illegal immigrant laborers Mr. Trump had hired to demolish the building that stood where Trump Tower now stands.

According to a report of the case in the New York Times, Mr. Trump, through a contractor, hired 200 undocumented Polish workers to help demolish the building. They worked without hard hats, gloves, or masks, and were paid $4.00 an hour which was less than half of union wages that were being paid to other workers on the job. The Polish workers had the temerity to sue him over their pay and working conditions. According to one witness at the trial, Mr. Trump told him that he liked the Polish workers, telling the witness that the Polish guys “are good, hard workers.” Although Mr. Trump testified that he didn’t know there were illegal aliens working on the job, the workers’ lawyer received a call from Mr. Trump’s lawyer threatening to have the Polish workers deported. After 15 years of litigation, the kinds of protracted litigation that Mr. Trump specialized in in his earlier life, the case was settled. The terms of the settlement were kept under seal until mid-December 2017, when the judge ordered them unsealed. We then learned that the settlement cost Mr. Trump $1.375 million. It is not surprising that Mr. Trump wants to crack down on illegal laborers coming into this country and taking jobs from U.S. workers. That’s exactly what he did, and it worked out badly for him. He wants to protect other employers from having the same bad experience.

The other arena in which Mr. Trump’s immigration policies may have been framed by personal experience, involves “chain migration.” “Chain migration” occurs when immigrants wanting to immigrate to the United States are sponsored by family members who already live in the United States. Family members who qualify for sponsorship by those already living in the United States are the spouse, minor child, or parent of a U.S. citizen, and certain other individuals described by the U.S. Citizenship and Immigration Services. That, Mr. Trump believes, is too inclusive and he has tweeted about it repeatedly. In one tweet in November 2017, he said: “Some people come in, and they bring their whole family with them, who can be truly evil. NOT ACCEPTABLE.” It was probably only an unfortunate coincidence that within three months after that tweet, chain migration hit close to home.

Towards the end of February 2018, there were a number of reports that Melania Trump’s parents, Viktor and Amalija Knavs, who have lived in the United States since the early 2000s, would soon be converting their green cards into citizenship papers. They got into this country because under the current rules that Mr. Trump hopes to change, American citizens can petition for residency for, among others, their parents, and that is what Melania Trump did for her parents.

It should come as no surprise that Mr. Trump decided to take advantage of his power as president to make a statement about chain migration, just as he used that power to make a statement about illegal workers who cost him more than a million dollars. The change he proposes won’t benefit him personally, but it will protect others who might find themselves in his situation. They will not affect him personally. because his in-laws already live here. Nonetheless, the idea for limiting chain migration came to him as a result of personal experience.

Relationships among in-laws, as many readers know, can at times be trying. According to news reports, Ms. Trump’s parents have obtained green cards and are now awaiting a date to be sworn in as United States citizens. Since arriving in this country, they have reportedly lived some of the time in Trump Tower, spent time at Mara Lago, and are now frequently seen in Washington. Their ubiquity, may well have contributed to certain tensions between the son-in-law and Melania’s parents. And those tensions may explain Mr. Trump’s ferocious opposition to chain migration. That, of course, is mere speculation on my part. It would not be a surprise, however. Family tensions can do that to you-more especially when one of the parties to the relationship is Donald Trump.