A growing problem across the internet are online reviews. They are everywhere. But, online reviews represent a problem because they can be manipulated. Or, worse, for some professionals or small business owners, a person can post false, negative reviews and cause serious harm. One former client posted a false, defamatory review about a lawyer in California. The lawyer, Dawn Hassell sued her former client and Yelp. Ms. Hassell won by default and secured a $557,000 judgment for defamation.  But, Yelp appealed. On appeal, the California appellate court found in favor of the lawyer. It rejected Yelp’s arguments based on Sec. 230 of the Communications Dccency Act, claiming it was not responsible for a third party post. The higher court also remanded the matter back to the trial court to narrow the statements that Yelp must take down from its website. See ABA Bar Journal news report.

I find iDonald Trump’s comments about has said about us in Iraq. He has apparently said at least twice that U.S. soldiers were stealing money while deployed in Iraq and Afghanistan. He even mentioned the soldiers who did indeed travel around the country carrying cash. “How stupid are we,” he joked? See Politico report. He said some soldiers are living “high on the hog” now.

Well, ok, first, neither Iraq or Afghanistan had a banking system. They had and still have cash based economies. Cash is the only option. That caused many logistical headaches. Trust me, Mr. Donald, we would love to have been able to make payments by check, or even, debit card. Sigh. There is just so much an army can accomplish in a given time period in a third world country.

Sure, some very few soldiers did steal money. But, at least to my knowledge, most or perhaps all of those convictions were of soldiers who were working back in the relatively safe areas of Kuwait and other Middle East countries. Those soldiers were operating with high dollar contracts.

The people carrying the cash, those were my people. We dealt in CERP money – Commander’s Emergency Response Program. I was a CERP manager of sorts at Division level near Tikrit, Iraq. I did not supervise but did help train the PPO’s – Project Pursing Officers – at the battalion and Brigade level. As the name suggests, CERP was strictly a fly by the seat of your pants operation. We created it when the two wars were started. No one, not one person was trained on CERP before the wars. It was way beyond anything any of us had ever imagined could occur in a war. Yet, there we were spending huge some of money. at Division level, we spent some $90 million per year. At the Brigade level, they were managing budgets of $10-15 million per year. It was a huge amount of money for lieutenants, Staff Sergeants, and Sergeants First Class to be monitoring. But, this was war. War is all about adjusting to the plans and moves by the enemy. We deal with the unexpected. Some famous amatory historian once said, all war plans fail to survive first contact with the enemy. Plans change. So, we had to deal with reconstruction projects.

The Iraq and Afghanistan wars were pubic relations wars. Yes, in theory, we could kill all the bad guys – but only if we could find them. To find them, we needed cooperation from the average Iraqi citizen. To build trust, we had to spend money.

I cannot remember his name. He was a former Brigadier General in Saddam’s army. When I got to Tikrit in 2005, he was now the Deputy Governor for Salahadin Province. He was a key guy in a key province. He told one of the Civil Affairs officers: “I like you. You Americans fix schools and build medical clinics. But, if you stay too long, I will kill you.” We appreciated his honesty. But, he also encapsulated our strategy. If we simply chase bad guys, then we are no better than the British imperialists from a 100 years earlier. We had to prove we were different. It was CERP money and the larger multimillion dollar projects that showed we were different.

We may never know how many U.S. lives were saved by CERP money. CERP was not supposed to be used in a straight tit-for-tat deal. We could not tell a Sheik that if he makes sure no attacks are launched from his tribal controlled area, then he would get a new medical clinic in his town. But, I am sure some deals like that were actually made. As the CERP guy at Division level, I was the one person who as supposed to ensure no such deals were made. We were required to abide by a series of operations orders that required we spend CERP money and any other money in accordance with Civil Affairs doctrine. That meant each reconstruction project had to be sustainable. It could not be a project that would end once the U.S. soldiers left.

The PPO’s had no training on CERP until my predecessor devised a very good three hour block of instruction on CERP. I was the main person to organize the classes. But, the classes required a JAG officer for a small portion, the CERP money manager and I forget the fourth person. We would travel from FOB to FOB giving our class. Apart from the class, I would personally travel to a FOB once a month to check on a project.

Yes, it was possible fro one of the PPO’s to create a nonexistent project and pocket the money. An NCO or young lieutenant could conceivably create on paper a project and pocket the money. The only control on something like was me. I deliberately would pick a random project once a month and ask the PPO to show me that project. I prayed every time that the project would indeed be there. And, thank goodness, those projects were always there. They did exist. But, I checked less that ten percent of the projects. There just was not enough time to check on all these projects. The PPO”s themselves could not check any given project more than a few months. Here in the U.S., when you are the government and you are spending $50,000 to rehabilitate a school, you would check it everyday or close to everyday. In Iraq, we were doing well to check every few months.

The PPO’s had to go outside the wire about 5-6 days per week. They were the brave ones incurring the risk of IED’s everyday. One PPO team I rode with looked back after some 11 months and recounted the number of IED’s they had driven through. They could could recall about half a dozen. The roadside bombs were big, but not big enough to stop the convoy.

Yet, no PPO ever asked me if they really had to go outside the wire to check a project. No one ever even asked if there was a minimum number of checks they had to make. Non one ever suggested they need not go outside the wire as much as they were.

No, the PPO’s never asked about his or her own personal safety. On the contrary, the only fear they conveyed to me in my 12 months was liability. Some were very concerned about getting into trouble for losing money. What could happen to them, they wondered. My lawyer background helped. They would listen to me when I counseled them to follow these CERP procedures and they should be okay. And, I have to add that when I would go outside the wire with these very brave and bright young men and women, you could feel their pride in their projects. They were doing exceptional work in a very constrained environment. I was very proud of all those PPO”s with whom I worked.

Did some of those PPO’s take home some of that CERP money? It was possible. We just did not have the time to implement controls. I heard that yes, early in the war, the pay agents would travel around with backpacks full of cash to pay Iraqi contractors. All the contractors and builders were Iraqi. The minimal level of controls we had were developed slowly with each year of the war. But, in my time, at least, midway through the third year of the war, it was indeed possible for a young sergeant or lieutenant to pocket $5, 10 thousand.

At the time, while wearing the uniform, I would have indeed turned in anyone I found doing that. As I mentioned above, my biggest fear was that we would get to one project and nothing would be there. In fact, I depended on the PPO teams completely when I went outside the wire. If they claimed to be showing me the Mohammed School for Girls school project and it was actually the Ibn School for Boys, I would have no way of knowing that. That is, if they showed me a project other than the one named, I might not have known.

So, Mr. Donald has a point. But, really, from a man who never served, who appears to have no knowledge regarding the limitations of the wars, his comments are quite offensive. Those PPO’s are the ones who could have taken home money. And, those PPO’s had no training, no background for this sort of work. They were exposed to liability issues and physical safety issues for which Mr. Donald has no appreciation. All of us wanted to take care of Uncle Sam’s money. None of us wanted to be subject to investigations after the war. But, even more important, we all wanted to come home with all our fingers and toes. Unless Mr. Trump wants to talk to someone who was there or has actual knowledge of our limitations, he should keep his comments to himself. It is not too late for the candidate to become educated about what it was truly like over there. Until then, in my opinion, he remains an arrogant blowhard.

 

One of the frightening things about Donald Trump is his tendency to shoot from the hip. He makes decisions, important policy decisions based on unfounded assumptions. One policy matter with which I am familiar is the military. Some months ago, he said a couple of times that he would insist that the military engage in torture, or, at least the sort of torture advocated by the Bush Administration. Water-boarding is a low level torture, but it is still torture.

The things is, as I learned in Infantry Basic Officers Course in the 1980’s, is that we as military officers and non-commissioend officers are required to disobey unlawful orders. This requirement was incorporated in the Uniform Code of Military Justice in response to the military abuses of the Viet Nam War.

So, what is an unlawful order? Well, an order to engage in water-boarding would come quite close. It would come close enough that many military members will be placed between a rock and hard place in a Trump Administration.

Now, I read that Donald Trump has also decided that he would forbid generals and admirals from appearing on television. He does not want them to discuss military matters in public. According to the May 30, 2016 edition of the Army Times, he wants to bar open discussion of military strategy or operations by top generals. The Times says he bases these decisions on the false assumption that generals and admirals have been overly critical of military capabilities and have openly disclosed military strategy.

That is silly. Generals and all top officers are trained to be discrete. We are required to discuss military strategies while still safeguarding classified information. Duh. That job requirement is well known to any officer or NCO.

More importantly, in a democracy, we must discuss strategic issues to some degree. In early 2003, Gen. Shinseki testified before Congress. He famously estimated it would require several hundred thousand soldiers to pacify Iraq after a war. That estimate was more than double the estimate of the civilian war planners for the Iraq war. See CNN news report. Now, we know how right he was.

Yet, Donald Trump would forbid such public disclosures. His policies are anathema to a democracy. I remember a year or two after my time In Iraq, I met a Lieutenant-Colonel in a Reserve training battalion. During his time in the war, he served as a senior officer in charge of training the Iraqi army. He told me, almost as an aside, that he had lied to the media about the capabilities of the Iraqi soldiers. Instead, he painted a rosy picture of the progress of the training. This was a time when Pres. Bush was telling the public that the U.S. soldiers would leave Iraq when the Iraqi soldiers could take over. As they stand up, Pres. Bush assured us, the U.S. would stand down.

That Lieutenant-Colonel should not have lied. In effect, he was lying to every American voter. People voted based on perceptions. Policy makers set policy based on perceptions. And, now, look where we are. The Iraqi Army does not function. The current advance on Fallujah is being carried out by Shiite militias controlled by Iranians. Two years ago, the Iraqi army panicked and fled when a handful of ISIS soldiers advanced on Mosul.

In a democracy, it is imperative that military experts discuss military matters publicly. Mr. Trump’s assumption is not correct. There has been little, if any public disclosure of military secrets by actively serving leaders. But, more importantly, when military “secrets” come to include broad strategy, then civilian control of the military becomes non-existent.

It frightens me that he would issue broad proscriptions based on poor understanding. He once said that he employs no advisers on international policy. He has a “good brain,” he assured his listeners. Okay, but that brain is poorly educated on some very important matters.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did very well: serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.  Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen. But, its also a good time to thank a vet for his/her service.

To mark Memorial Day, I would like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

The Texas Attorney General, Ken Paxton, has been sued by the Securities Exchange Commission for securities fraud. See San Antonio Express News report. That is a big deal simply because this is a civil matter, not criminal. The SEC only has to show by a preponderance of the evidence that General Paxton broke the law. In criminal court, the standard is beyond a reasonable doubt. We can think of that standard requiring 99% probability that the accused person is guilty. Preponderance is more like 50.1%.

The SEC cannot ask for imprisonment, but they will ask for hefty fines. According to the news report, Mr. Paxton was paid 100,000 shares in an energy company. Another person involved in the scenario, Caleb White, plead guilty and had to return $66,000 and 20,000 shares of the same company, Servergy. One lawyer who follows the SEC says the SEC generally files only when it is sure of its evidence.

One can expect that the AG is not so certain of his evidence.

There are a lot of myths out there about employment law. From time to time, I talk about a few of those myths.

At will
“At will” employment means an employee can be fired for anything.” Texas is an at-will state. An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc. So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old. The anti-discrimination statutes provide several exceptions to the at-will doctrine.

Probation period
“Probation periods means an employee can be fired for anything.” Not quite. A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc. See above paragraph.

Copy of file
“Employees have a right to a copy of his/her personnel file.” That depends on whether the employee is public sector or private. I have found no authority in Texas law saying that employees of private businesses can obtain a copy of their personnel file. As a public sector employee, an employe’s rights are governed by the Freedom of Information Act for federal employees and the Open Records Act for state employees. I can find no authority providing that a private sector employee has a right to a copy of his/her personnel file.

Rest breaks
“Employees get periodic breaks during the work day.” I was told as a young warehouseman that we had a right to a 10:00 o’clock break and another at 3:00 pm. The times could vary slightly. Since then, I have looked for the authority for those breaks. There is no such authority. Most likely, that is or was part of the influence of collective bargaining agreements (union agreements). CBA’s do often provide for such breaks. But, for non-union employees, there is no authority for a mid morning break and a mid-afternoon break. There is no state law or regulation on rest breaks or meal breaks. Federal regulations do not require a meal break. But, Federal regulations encourage work places to provide rest breaks, but such breaks are not required. See 29 CFR Sec. 758.18.

Non-compete agreements
Some folks outside and inside Texas believes non-compete agreements are not enforceable in Texas. Yes, they are and have always been enforceable. They became much more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). I previously wrote about that decision here.

Free speech
The right to free speech exists only for government workers. There is no general right to free speech in a private workplace. But, there is protection for employees who discuss “terms and conditions” of employment. Those sorts of discussions are protected by the National Labor Relations Act. I discussed those protections here. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace.

Whistleblowing
There is no general whistle blower protection in Texas. I think most people think of whistleblowing as reporting wrongdoing to some law enforcement type entity. Employees in the private sector do not have protection against whistleblowing. But, there is a protection from asking employees to violate criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. These Sabine Pilot actions only apply to violations of law that involve criminal punishment.

Not Written up before termination
People still ask me or tell me that the employer did not write them up before firing them. Well, employers do not have to do that. Yes, most large employers have nice looking employee manuals which state that employees must be wrritten up before termination. But, these manuals are not binding. They have not even been arguanbly binding since about the early 1990’s. This is one employment myth that may never go away. I wrote about employee manuals here.

Privacy
Some folks still think they have some degree of privacy at work. Email is a frequent issue. Generally, email produced with use of the employer’s equipment and server belongs to the employer. The employer may review your email anytime. I wrote about workplace email here and here. The one exception appears to be when the employee accesses his/her private email server which is password protected.

There is no prohibition on private sector employers searching desks to my knowledge. But, the U.S. Constitution Bill of Rights applies to state governments. So, in the public sector, a worker has some protection from unreasonable searches if s/he has a reasonable expectation of privacy” that society is prepared to recognize as reasonable. See O’Connor v. Ortega, 480 U.S. 709 (1987), on remand, Ortega v. O’Connor, 817 F.2d 1408 (9th Cir. 1987). But, the “expectation of privacy” can be limited by office practices and by legitimate regulation. And, HIPAA does protect medical information in most work situations.

So, as I tell folks on occasion, if you want fairness at work, then form a union. Or, persuade your state legislature to make a few changes in the law, so all workers will benefit.

So, documents have been released about Bowe Begddahl. Those documents shed light on the troubled young man. He tried to join the French Foreign Legion. He grew up in a regimented home. He was home schooled. He had limited contact with girls until he was 16 or 17. His father, not a veteran, but still enamored of the military way of life, ran the home like a military unit. It was, as Mr. Begddahl says, not a good place to be. They lived in a rural area of Idaho.

So, recognizing his social limitations, he sought to confront what he saw as a weakness. He went to Paris, not speaking a word of French, and tried to join the French Foreign Legion. They rejected him because of his eyes. He found that to be a relief. Soon afterward, he joined the Coast Guard. But, he had a breakdown, a panic attack during boot camp. When he joined the Coast Guard, he was not talking with his parents. He told no one he would join. He felt that joining was his way of “pulling his own weight.” He felt like the information he received from his family was that he could not succeed. So, failing with the Coast Guard, he wanted some way to show he could succeed.

His time in the Army was dismaying, he told the Army after his release from captivity. At the National Training Center, which is a premier Army training event, was disappointing. He spent most of his time policing cigarette butts and sorting through expended brass.

So, if that disappointed him, it is safe to say he expected much more than was realistic. The Army cannot function without a lot of time devoted to mundane, boring tasks. And, as a young private, that is largely what you do. Sure, the young soldier will get his chance for glory. But, not without first picking up a lot of cigarette butts.

The newly released papers also indicate medical authorities said SGT Bergdahl is competent to stand trial. But, he suffers from a schizotypal personality disorder, which causes persons to suffer in their thoughts and social relationships. See San Antonio Express News report.

SGT Bergdahl joined the Army at the peak of the Iraq and Afghanistan wars. He joined at a time when the Army struggled to meet its recruiting goals. We get a peek in this instance of the sort of soldiers the all volunteer force was accepting. He was a troubled young man who probably was not ready for the demands of a combat ready force. It seems to me that the troubles with SGT Bergdahl’s conduct lie with the Army itself as much with that problematic young soldier.

Some jobs just require too much of an employee. SeaWorld Entertainment, Inc.had some of its employees pose as animal rights protestors, so it could watch the activists and prevent harm of some sort. The corporation has ended the practice. The company would not say how many employees were sent on this undercover operation. People for the Ethical Treatment of Animals has been protesting the treatment of animals at the water parks. Attendance has been dropping over the past few years. So, the employer apparently felt some pressure to react. See San Antonio Express News report. Reportedly, one undercover operative even appeared to be trying to incite the PETA members on Facebook.

I am not a fan of PETA. But, you know, there are some jobs I just would not accept.

Our leave plaices are woefully inadequate compared to European countries. Europe offers at least 14 weeks of paid maternity leave. Germany and Sweden offer the last amount at 14 weeks. The United Kingdom offers 52 weeks, while Ireland offered 42 weeks of paid maternity leave. Here in the USA, we offer zero. Although, says the CBS news report, some upper tier employers offer some paid maternity leave. See CBS News report.

The European Union requires employers to offer at least four weeks of paid vacation each year. That is much more than our mere two weeks each year. Some European countries, such as Denmark, France and Sweden offer five weeks per year. Without providing specifics, the report also indicates that unemployment benefits are much better in European countries.

But, taxes are also much higher in Europe. The average personal tax rate in Denmark, the country with the most generous benefits, is 38.4% while the average US worker pays 24.8% in taxes. Would it be worth the extra 10-14% to have better leave? That question is the stuff of which elections are made…..