# Appendix — Vence v. Bolivar County Community Action Program, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0908%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 927 ## Text S87 485 ~ - UOSEPH F. Ss ERC eerie, IN THE SUPREME COURT OF THE UNITED STATES NO. A-55 OCTCBER TERM, 1987 AARON VENCE & DENISE YOUNG PETITIONERS VS. BOLIVAR COUNTY COMMUNITY ACTION PROGRAM, INC., THE BOARD OF DIRECTORS OF BOLIVAR COUNTY COMMUNITY ACTION PROGRAM, INC., being CLYDE AYCOCK, JERRY HOLLINGSWORTH, WESLEY J. LIDDELL, SAM D. LONG, E. L. McMURCHY, JR.., THOMAS MORRIS, WILLARD SAMUELS, JIM SCOTT, KIRKHAM POVALL, TOMMY NARON, ALLEN DENNIS, JOE ANDERSON, WILLIE B. SMITH, also RICHARD GERNERT, JO ANN ANDERSON, BILLY JOE McCAIN, JOHN L. JORDAN, and OTIS R. BOWEN, SECRETARY OF THE DEPARTMENT OF HEALTH & HUMAN SERVICES RESPONDENTS PETITION FOR CERTIORARI: from the COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR CERTIORARI - 5th AMENDMENT, 42 USC SECTION 1983 and MANDAMUS CLAIMS ACCOMPANYING APPENDIX TO PETITION L. PAUL KOSSMAN P.O. BOX 1263 CLEVELAND, MS 38732 601-846-0100 APPENDIX PAGE Opinions Below Opinion of the HHS Hearing OEE ACES. ccc cer ccs ssasescses 1 Opinion of the Fifth Circuit... §g Judgements Appealed From Order of the District Court Dismissing the Case........ 73 Judgement of the Fifth ee oo aaa ia eS oe Wb ew ee 80 Constitutional Provisions Fifth Amendment of the United BEBCee LOGEC s Cit TOR i -« 66 60% 82 Statutory Provisions oR ee Pee ara a ere ara ara ae ae 83 ‘5 We eg Bk Diag ee area re ae 85 ko eS Ba 85 Pa 86 Bs Tre 87 OS sa 89 May 11, 1984 RECOMMENDATION CONCERNING PROPOSED TERMINATION OF HEAD START FEDERAL FINANCIAL ASSISTANCE TO BOLIVAR COUNTY COMMUNITY ACTION PROGRAM, INC. INTRODUCTION On April 17, 1984, pursuant to 45 C.F.R. § 1303.37, an “informal” show cause hearing was conducted by the undersigned for the purpose of rendering a recommendation as to whether the above-referenced Head Start grantee should be terminated for violating 45 C.F.R. Part 1304, Appendix B (70.2). The violation alleged is the grantee's termination of the employment of a Head Start staffer 2 (Mr. Aaron Vence) without the approval of the Policy Council. Representing the Administration for Children Youth and Families (here- inafter "ACYF") at the hearing were: Mr. William Saddler, Chief of the Head Start Division, Mrs. Bessie Barnett, Supervisor for Mississippi, Ms. Beverly Taylor, Child Development Program Specialist and Mrs. Dana Petti, Assistant Regional Attorney. Representing the grantee at the hearing were: Mr. Kirk Povall, Attorney and Chairman of the Board of Directors, Bolivar County Community Action Program (herein- after "BCCAP"), Mr. Richard Gernert, Executive Director of the Community Action Program, Mr. Billy Joe McCain, ate Head Start Program Director, and Mr. Adolph Hilliard, Finance Officer of the Head Start program. Also present were Mrs. Jo Ann Anderson, Chairperson of the Policy Council and Mr. Willie Simmons, advisory member of the Policy Council. Over fifty documents were submitted by the parties at the hearing. These documents are composed of grantee Board of Director meeting minutes, Policy Council meeting minutes, correspondence between the grantee and the Policy Council, correspondence between the grantee and Mr. Vence and/or his attorney, correspondence between the grantee and SCYF and correspondence between Mr. Vence's attorney and ACYF. Also included in these documents ote are grantee personnel policies and procedures, various travel expense statements and other miscellaneous letters and records. All of these are forwarded along with this recommendation, and, to the degree possible, are arranged in chrono- logical order. A statement of facts, deemed to be pertinent by the undersigned is set forth below: STATEMENT OF FACTS On June 17, 1983, the Head Start Program Director, Mr. Billy J. McCain forwarded a letter to Mr. Aaron Vence, Head Start Adminis- trative Assiatant, which set forth allegations concerning the filing of "bogus" local travel statements for payment. On July 8, 1983, Mr. McCain forwarded another letter to Mr. Vence stating that the recently received documents incicated that on four out-of-town "received pay- trips Mr. Vence had ment from the staff association [National Head Start Association] and program for attending the same meeting." An explanation ". for the duplication of the above travel expense payments" was requested. Mr. Vence responded on August 2, 1983, by submitting an accounting of his trips to National Board Meetings between February 1979 and February 1983. ". . . and I have spent approximately $4,000 of my personal money to represent Bolivar County Head Start and the State Staff Association on the national wie a ) i Ao a ee ete eyrie rt) i a fi as oa level for the past four years. I have gone far beyond the call of duty as a staff memeber [sic] with- out proper compensation and recognition." On September 16, 1983, Mr. McCain continued his correspondence with Mr. Vence. After reviewing Mr. Vence's explanation and other pertinent documents, it was Mr. McCain's conclusion that "duplica- tion of travel payments" had occurred on four occasions between 1980 and 1982. Mr. McCain informed Mr. Vence that in submitting travel expense statements, -». you have neglected to indicate reimbursements received from the National Staff Association for the same trip. Nor have you at any time advised this program that you received reimburse- ment for travel from any ~ source. Therefore, the travel expense statements submitted by you are fraudulently documented which resulted in duplication of payments to you. Thereafter, a special meeting of the Executive Board of the Policy Council and Board of Directors were held on September 27, 1983. Mr. McCain stated he had requested the meeting "because there were some discrepancies in the Head Start Program which involved finance records."’ Mr. McCain presented the allegations of travel expense abuse concerning Mr. Vence, as generally outlined above. Documents were reviewed and questions were asked by various Board members. It was pointed out that Mr. Vence had Signed out-of-town travel expense statements containing the following certification: "I certify that this statement, the amounts claimed and attachments are true, correct and complete to the best of my knowledge and belief, and no payment for the amount claimed, other than the advance indicated above has been received." The Board concluded the grantees Personnel Policies and Procedures called for the dismissal of Mr. Vence. On September 29, 1983, Mr. McCain informed Mr. Vence that his handling of out-of-town travel expenses violated the agency's fiscal policies and his actions constituted ". deliberate falsification of records and misappropriation of program funds."' Accordingly, Mr. Vence was notified of his suspension, without pay, pending termination abe procedures. Appeal procedures were set forth in this letter. On October 13, 1983, Mr. Vence, through his attorney, appealed the adverse personnel action in a letter to the chairperson of the Policy Council. Mr. Vence stated that the personnel action was taken because he represented a dissatis- fied group of the staffers and "Mr. McCain wants to destroy leadership of the dissatisfied staff." Mr. Vence also stated that the charges of local and out-of-town travel abuse were without foundation and requested a hearing in order to refute the charges. A hearing before the Grievance/ Appeal committee of the Policy Council was held on November 9, 1983. Apparently a hearing could «Gu not have been held any sooner because a new Policy Council (consisting of 31 new members) had been formed in early October and committee memberships and training had not yet been established. (See October 18, 1983 letter of Mrs. Jo Ann Anderson to Mr. Aaron Vence). Seventeen committee members were present at the grievance hearing. 1/ Mr. McCain, Mr. Vence, and his attorney, Mr. Kossman, were all present and addressed the issues concerning alleged travel expense abuses. Mr. Vence generally denied the charges of local travel abuse and claimed that the allegations 1/ At this time the Policy Council was composed of a total of 4l persons. oife ° ad > & ene ; ~~. ; = = : . : i A Ae a iat eae ed ar (ie Ti rae wih etl Lh 7 Fae : 7 - = a = ths ie ars 7 oe. ? - i AS 7 te ‘ ; : Oa, | ne eee a eh were unsubstantiated because no sign-in sheets existed which could verify the allegations. Mr. McCain countered with examples of three instances of abuse which he claimed were verifiable. In regard to out-of-town travel, Mr. Vence denied that he deliberately falsified records and misappropriated funds. Furthermore, he stated that he had spent $2,000 to $3,000 of his own money to attend meetings around the country and that Mr. McCain had presented “incomplete information" to the policy meeting group. After questions from various committee members, the committee went into executive session. During the executive session, various committee members commented on the Situation presented. One member stin emphasized that in regard to the four instances of dual payments received for out-of-town travel, Mr. Vence had stated "Monies received on several of those four meetings were in excess of expense occurred." Another stated that, “a man's job is at stake . . . and he has a family to support" and consequently he should not be terminated. Additionally, a comment was made that "Mr. Vence has been caught with his hands in the pie and there are probably some staff involved in the same thing." When the issue came to a vote, nine voted to reinstate and three voted not to reinstate. The committee's final recommendation to the Policy Council was for reinstate- ment with back pay. On December 7, 1983, an executive hts ee session of the Policy Council was convened to consider the Grievance Committee's recommendation concern- ing Mr. Vence. One council member asked if the Policy Council would be liable if it reinstated Mr. Vence even if his actions had in fact violated the grantee's personnel policies. There apprently was lengthy discussion of this issue. Another council member stated that if Mr. Vence was fired, the Project Director and Chief Fiscal Officer should also be terminated because there was "no way in the world these things could have been going on and they did not know anything about it." A third member stated that there was "no direct documen- tation that said you could not get partial payment .. ."" When a vote wi Be was taken 18 voted to reinstate and 7 voted against reinstatement. Mr. Richard Gernert, BCCAP's Executive Director, responded to the Policy Council's decision on December 8, 1983 by stating that the action represented "gross irresponsibility and disregard of the agency's Personnel Policies and Procedures." Accordingly, since the CAA Board of Directors had legal, fiscal and overall administrative responsibil- ities in the operation of the Head Start Program, he directed that reinstatement not be carried out until the Board considered the matter further. Thereafter, a special meeting of the BCCAP Board of Directors was held on January 3, 1984 to consider the personnel matter involving Mr. Vence. 2/ Mr. Vence and his attorney appeared and made presen- tations, as did Mr. McCain. Documents were also presented to the Board. Mr. McCain stated that the Program, from time to time, had agreed to pay for some out-of-town trips but he had been unaware that Mr. Vence was receiving additional payments from the National Associa- tion for some of the trips. Mr. Vence and his attorney then proceeded to present a detailed explanation of their view of the local and out- of-town travel expense abuse allega- tions. Mr. Vence stated that on 2/ Apparently, the Board met on December 14, 1983 to consider this issue, but a quorum was not present. ot%eu ’ numerous occasions he had used personal funds when travelling and that he had “indicated to the Project Director and Fiscal Officer that partial payments were being received from the NHSSA." Mr. Vence is also reported as having "refuted" charges that he had received funds from both organizations for the same trip. Mr. Adolph Hilliard, the Fiscal Officer, countered by stating that Mr. Vence had declared in staff meetings that he was not receiving funds from other sources and that minutes from a March 3, 1983 meeting reflected this statement. The Board then met in executive session and after considering all statements and documents concluded that the termina- tion was correct and justified. On January 6, 1984, the chairman of wie —————— a i Pee f 7 - “Ae Y aw “i Ff 7 a ~ ; - ee \ : my f ‘ v = a ' i's — re 1] 4 . i _ -~ r > ? - 1984, the chairman addressed the Policy Council. At the close of the meeting, Council members voted to afford Mr. Vence an opportunity to present his case before the full Council on February 1, 1984. It was resolved that if the Council did not change its position as a result of this meeting, a meeting with the full Board would be sought on February 7, 1984 "to see if there can be any clarification between the Board and the Council." This intention was repeated in the Policy Council chairperson's January 23, 1984 letter of the chairman of the Board. However, on January 25, 1984, the Executive Director of BCCAP stated that if a final decision was prolonged in the Vence matter, the well being of the -3i- 1 program would be jeopardized. Accordingly, he proceeded to termin- ate Mr. Vence. In light of the termination, the Board on February l, 1984, declined to meet with the Policy Council. The undersigned concludes that all avenues of resolution available within the local Head Start program should be exhausted before question of termination is addressed by the Government. It is therefore recommended that the Board and Policy Council, or representative thereof, meet in joint session for the purpose of attempting to resolve their differences. 6/ 6/ Perhaps several meetings will be necessary before it can be ulti- mately determined whether or not a true impasse exists. -32- In reviewing the record, the under- signed further notes that apparently neither the Board nor the Policy Council set forth cohesive written statements discussing their respec- tive view of the pertinent facts and the manner in which the facts were weighed and credibility was evalu- ated. 7/ It is suggested that if each body drafts such a document 7/ In particular, minutes of the Policy Council meetings do not clearly reflect its thought process and rationale. It is thus difficult to ascertain the degree to which the merits of the dispute were analyzed by the newly formed Council. -3 3- Ly 2 Pi ie +. Rad ie “ aig eg a Eee ates: 3 By a S. aes Be ae SH Zz ae Sy a BS e ices “ae ¢ es ~ ayy was >. $a woe Bess a Jeg 4 zs & z | ‘> as] a L] be | wy = Sen ars" “ : Sy % ; SI so q 3 1984. Upon the conclusion of the show cause hearing, the hearing officer found that BCCAP violated applica- ble HHS regulations and recommended that the BCCAP Board and the Policy Council hold a joint meeting in order to resolve the dispute. Jordan accepted the recommendation and remanded the dispute back to BCCAP for resolution. On May 31, 1984, the Policy Council met and voted to rescind its prior decision to reinstate Vence and then promptly voted to terminate Vence's employment. The impasse now having been resolved by virtue of the Policy Council action, Jordan wrote Povall on July 24, 1984 and stated that HHS regulations had been satisfied. -42- Vence has brought the present action claiming that his termina- tion was accomplished in violation of applicable BCCAP+ and HHS t Bolivar County Head Start Standard Operating Procedure 18.II./7 provides that unless the decision to fire or hire a Head Start employee is appealed to the Community Action Agency Board on procedural due process grounds, the decision of the Policy Council is the final step at the program level. “i tie regulations~ which govern the role of the Policy Council in decisions to hire or fire Head Start personnel. Violation of the above regulations, it is argued, constituted a depri- vation of due process under the fifth and fourteenth amendments. Vence, together with Denise Young and Beverly Perkins, also seeks an order of mandamus pursuant to “The applicable HHS regulation, 14 C.F.R. § 1304 (App.B) provides that the Policy Council must approve firing decisions before they may become final. If the action is not approved, then the action may not be taken until agreement is reached between the disagreeing groups. HHS interpretation of this regulation requires disagreeing factions to meet jointly to resolve disputes. =46- 5 U.S.C. § 702 on the basis that their vote as Policy Council members to reinstate Vence was nullified by Jordan's decision to remand the dispute back to BCCAP upon the conclusion of the informal show cause hearing. Plaintiffs assert that Jordan's failure to uphold the original Policy Council decision violated BCCAP and HHS regulations. The defendants have now moved to dismiss and for summary judgment asserting the lack of state or federal action in this case which is a necessary element of plaintiff's constitutional claims. The above motions thus present the issue of whether the actions of BCCAP in terminating Vence without Policy Council approval may be "fairly attributed to the state or federal -45- ae twlh, ? =) a hel ere lo 7 « @ ‘ In order to be so designated, a Head Start agency must also (1) establish effective procedures by which parents and area residents concerned will be enabled to directly participate in decisions that influence the character of programs affecting their interests; (2) provide for their regular participation in the implementation of such programs; (3) provide technical and other support needed to enable parents and area residents to secure on their own behalf available assistance from public and private sources; and (4) establish procedures to seek reimbursement, to the extent feasible, from other agencies for services for which any such other agency is responsible, which Min are provided to a Head Start participant by the Head Start agency. (c) Coordination with other agencies The head of each Head Start agency shall coordinate with other programs serving the children in the Head Start agency to carry out the provisions of this subsection? (Pub.L. 97-35, Title VI, § 642, Aug. 13, 1981, 95 Stat. 502.) Is, in original. Probably should be "subchapter". 2s --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0908%3A2. Public record. Not legal advice.