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Essays in Experimental Economics
Inauguraldissertation zur Erlangung des akademischen Grades eines Doktors der Wirtschaftswissenschaften der Universität Mannheim
Timo Hoffmann
Herbstsemester 2016
Abteilungssprecher: Prof. Dr. Carsten Trenkler
Referent: Prof. Dr. Dirk Engelmann
Korreferent: Prof. Dr. Henrik Orzen
Tag der mündlichen Prüfung: 22. November 2016
Eidesstattliche Erklärung
Hiermit erkläre ich, dass ich die vorliegende Dissertation selbstständig angefertigt und die benutzten Hilfsmittel vollständig und deutlich angegeben habe.
Erlangen, 27. September 2016
Timo Hoffmann
Contents
2.2 Experimental design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
List of Figures
x
List of Tables
3.3 Predicted mechanism choices (ad interim). . . . . . . . . . . . . . . . . . . . 102
General introduction
Economics is concerned with all kinds of human interactions as well as the role institutions play in these interactions. The research presented in this dissertation is motivated by the idea that challenges and problems that arise in the functioning of economies and societies are driven by human behavior. Studying human behavior is not only helpful in understanding the reasons for the observed behavior, but might provide valuable insights into the origins of these problems. I believe that a better description of human behavior is a necessary first step in finding solutions for many challenges our societies face. More generally, I consider the research of human behavior crucial in order to develop institutions and mechanisms for solving or even preventing these problems and to improve existing organizations.
This dissertation consists of three independent chapters, which analyze different aspects of human behavior. All chapters share the feature that laboratory experiments are used to investigate and describe the behavior of agents. Chapter 1 focuses on a methodological issue of eliciting expectations of players about the likely behavior of their opponent(s) in experiments - the so called beliefs - and investigates the influence of this belief elicitation on observed behavior. Thereby this research touches on the process of belief formation. Chapter 2 analyzes the importance of worker sorting and its interplay with incentive effects for the profitability of rank-order tournaments. More precisely I consider two environments, with and without the possibility of worker sorting, to examine how worker sorting affects the profitability of a tournament for employers. Lastly, chapter 3 investigates the role of private information and available mechanisms on choosing group decision rules. This experiment tests several theoretical predictions made in the economic literature regarding the role of participation constrains for choosing efficient group decision rules. Chapters 1 and 2 are single-authored essays, while chapter 3 is based on joint work with Sander Renes.
Each chapter is followed by an appendix that includes supplementary material such as additional figures, further analyses and provides the instructions for the conducted experiments. The references for all three chapters are collected in one bibliography at the end of this dissertation.
Chapter 1
To understand subjects' decisions it is useful to know more about why a subject makes a certain choice. Especially in the context of strategic interactions, the expectation of a person what others will do - the so called "belief" - can be helpful in understanding the motivation of a subject for choosing a certain action. Beliefs can be used to differentiate between models that predict identical behavior and they provide useful insights in the reasoning of subjects. Specifically if predictions made by models and observed choices diverge, beliefs can be valuable in understanding why model predictions fail. The experiment presented in chapter 1 is concerned with the question whether asking subjects for their beliefs about the expected behavior of their counterpart influences which actions are chosen.
My motivation for this paper is twofold. First, the described advantages of knowing subjects' beliefs when explaining their behavior and the relatively simple possibility of directly eliciting beliefs in laboratory experiments have made belief elicitation frequent in the experimental literature. But beliefs and actions elicited in an experiment can only be used without restrictions if subjects' actions are not changed by the elicitation. In the literature that uses belief elicitation it is mostly assumed that action choices are not altered by a proper elicitation of beliefs. Some studies explicitly consider a potential effect of belief elicitation on game play, however their results are mixed. While a few papers report significant effects on subjects' choices, others claim that choices are not affected by the elicitation. Since the different results might be partially driven by different game properties, I consider it important to analyze whether and how game properties play a role for the effect of belief elicitation on game play. Second, understanding how and specifically in which situations belief elicitation might affect chosen actions can provide useful insights in the decision process of subjects.
Therefore in chapter 1 I investigate whether belief elicitation influences the behavior of subjects in two-person normal-form games. Using games with different properties allows me to analyze whether and how game properties play a role for the effect. In the experiment there are two treatments. In the first treatment subjects' choices and beliefs are elicited simultaneously. Therefore subjects have to think about their beliefs when choosing an action. In the second treatment all choices are made without the elicitation of beliefs. The beliefs are elicited as a surprise after subjects have made all their action choices. Besides enabling me to analyze whether choices are affected by the belief elicitation, this procedure allows me to compare the belief statements between treatments.
Comparing the choices from both treatments, I find that subjects' choices are affected by the belief elicitation for two subgroups of games. In dominance-solvable games subjects are more likely to choose an action that is part of a Nash equilibrium if they state beliefs and actions at the same time. In games that have a symmetric alternative outcome to the Nash equilibrium, belief elicitation decreases the probability of equilibrium play. These results demonstrate that belief elicitation is not always neutral, but can have significant effects on game play. Dependent on game properties the belief elicitation can lead to an increase or decrease of equilibrium play.
In the data there are no differences between the beliefs stated simultaneously with the action choice and the beliefs stated after action choices have already been made. However, there is a clear difference in the number of action choices, which are best responses to own stated beliefs. When beliefs and choices are elicited simultaneously, chosen actions are more often best responses to the stated beliefs compared to a sequential elicitation of actions and beliefs. A possible explanation of this finding is that subjects revise their beliefs when they are asked to make explicit belief statements. The elicitation of beliefs might lead to modified beliefs and these modified beliefs result in a change in the action subjects want to choose. However, subjects can actually "change" their action only if beliefs and actions are elicited simultaneously. In the treatment in which action choices and belief statements are made sequentially subjects cannot change their previously made action choices. Consequently, the previously chosen actions are less often a best response to the stated "modified" beliefs.
The data shows that not only whether an effect exists depends on game properties, but also whether belief elicitation increases or decreases the probability of equilibrium play. Thereby these findings highlight the importance of different game properties for the effect. Furthermore the data indicates that the decision process of subjects does not always include the formation of exact beliefs. The fact that the effect of belief elicitation varies with game properties could suggest that subjects' decision processes are slightly different for different games / environments. I therefore consider the presented study also as a step towards a better understanding of the role of belief formation in the decision process of subjects.
Chapter 2
The importance of worker sorting for the observed output differences between payment schemes is well documented in the economic literature. However, little evidence exists on the role of worker sorting on the profitability of payment schemes for employers. In chapter 2 I analyze the profitability of a rank-order tournament for employers in two environments, which differ in whether self-selection of workers into payment schemes is possible or not.
Rank-order tournaments have the feature that workers' earnings depend on their relative performance and not directly on their output. Consequently, for employers the costs of a tournament are independent of workers' performance - at least when prizes are independent of output. This independence can result in cost savings, if there are high effort provisions of workers despite a relatively cheap tournament. If that is the case, the firm might generate a larger profit with a tournament compared to output-based payment schemes. But such a tournament is usually cheap, because the expected earnings for workers are low. Therefore it is not clear whether a cheap tournament is sufficiently well liked by productive workers, such that they choose the tournament over other payment schemes.
My experimental design exploits the advantage of the laboratory environment to disentangle a potential sorting from the incentive effect. In the first part employers choose a payment scheme among the offered possibilities of a fixed wage, a piece rate and a rank-order tournament. Since workers are exogenously matched with an employer, only an incentive effect is possible. In the second part three employers are grouped together and sorted to the different payment schemes based on their stated preferences. At the same time, six workers are grouped together and state their preferences over the payment schemes. Since each payment scheme has to be offered by exactly one employer, workers can choose between all three payment schemes. Therefore, workers are no longer exogenously matched with an employer, but select their preferred payment scheme. This matching procedure provides an opportunity for worker sorting.
Additionally there are two treatments with different tournament prizes. In the low-prize treatment the tournament is relatively cheap for employers. These low prizes yield low expected incomes, even for productive workers. In the high-prize treatment the prizes are larger and therefore the expected payoff of workers in the tournament, but also the costs for employers, are higher.
My results demonstrate that tournaments provide incentives for workers and therefore lead to high effort provisions. In both tournaments the observed output is similar to the piece-rate performance. Consequently, if worker sorting is not possible - in part one - a lowprize tournament results in higher firm profits than a piece rate. A finding which illustrates the potential cost advantage of rank-order tournaments for firms. However, the tournament in the high-prize treatment, with the larger costs, results in the same average profits as the piece rate. In the second part, in which worker sorting is possible and indeed observed, the cheap low-prize tournament does not yield a larger employer profit than the piece rate. The main reason for this finding is productivity sorting of workers. Productive workers prefer the piece rate if the tournament prize is low. While the high-prize tournament is more attractive to workers, the additional costs for the tournament prizes result in the same profit for employers for the high-prize tournament and the piece rate. Therefore, neither the low nor the high-prize tournament yields a larger employer profit compared to the piece rate if worker sorting is feasible.
The main finding of the paper is therefore that with worker sorting rank-order tournaments are hardly simultaneously attractive for workers and employers. Despite its low costs for employers, a low-prize tournament does not yield larger profits than a piece rate due to worker sorting. A high-prize tournament might be attractive for workers, but it is too costly for employers. This result might be part of the explanation why a tournament is usually not the main contract scheme for workers in labor markets, despite its good incentives.
Chapter 3
In the third chapter the problem of (efficient) mechanism selection in a group decision experiment is analyzed. We study binary comparisons between four decision rules and investigate the role of different outside options and private information on subjects' mechanism choices. By having subjects choose between two available mechanisms, we can test the influence of participation constraints on the selection of mechanisms. Participation constraints are ubiquitous in economic theory. The possibility of "going elsewhere" provides a credible threat for economic agents. Therefore these outside options result in strong bargaining positions and have to be taken into account by the respective counterparts. Despites their importance and their prominent role in economic theory, there is little empirical evidence of the effect of participation constraints on behavior. A major reason for the lack of evidence is that participation constraints generally depend on the choice not made, and thus on unobserved counterfactuals. Without assuming a participation constraint binds strictly, it is nearly impossible to give an estimate of the value attached to the best of the options not taken. To overcome this problem, Sander Renes and I conduct an experiment, which allows us to study the effects of participation constraints on mechanism choices in social choice situations.
Before a group or society can take a decision, whether it is about what restaurant to visit or about the implementation of a reform, the group has to select a decision rule. It would seem that groups should select a rule that maximizes the value of the final decision to the group. In their seminal paper Myerson and Satterthwaite (1983) show that with private information about their preferences over outcomes, there is no efficient decision rule that is unanimously preferred by all group members over the non-implementation status quo. In our experiment we test whether this impossibility theorem can be found in subjects' mechanism choices. Furthermore, we investigate several proposed possibilities in the literature to overcome this impossibility theorem by changing the outside option of subjects.
In our experiment groups of three participants make a collective decision about the implementation of a public project. If implemented, all group members receive a payoff from the project. However, these payoffs are heterogeneous and might be positive or negative for an individual. The decision whether to implement the project or not is taken in a two-stage voting game. In the first stage the group decides between two available mechanisms and in the second stage the selected decision rule is used to determine whether or not the project is implemented. In the experiment we contrast two different environments. In the first part, subjects select a decision rule without being informed about their private payoff from project implementation. However, they know the distribution of possible payoffs and are informed about their private payoff after a decision rule has been chosen, but before they apply the decision rule to determine the project implementation. In the second part subjects are informed about their potential project payoff before selecting a decision rule.
In total there are four group decision rules: (1) an efficient direct revelation mechanism -
called AGV, (2) simply majority voting, (3) a non-implementation status quo mechanism that always prevents project implementation and (4) a random mechanism that implements the project in 50% of cases. Providing subjects with the choice between two of these rules and therefore defining the outside option, allows us to assess the role of participation constraints on mechanism choices. The within-subject variation of the private information about the project payoffs enables us to perform a straight forward test of the impossibility theorem by Myerson and Satterthwaite. We compare the mechanism choices of the same subjects with and without private information about the project payoff.
Our results show that before the revelation of private information, subjects choose the more efficient mechanism, because it yields the largest expected payoff. In the first part of the experiment a large majority of choices is in line with the expected payoffs of the mechanisms. In the second part, when subjects are informed about their valuation for the project, they only prefer the (more) efficient mechanism if their valuation is positive. Otherwise they opt for the non-implementation status quo whenever possible. This result confirms the impossibility theorem of Myerson and Satterthwaite. Furthermore we find evidence that it is easier to get individuals to agree on more efficient mechanisms if the outside option involves risky outcomes.
These results suggest that participation constraints play an important role in the optimal design of institutions. A group that is stuck in an inefficient mechanism might require an outside influence or coercive power to break away from the status quo. Even in the small groups in our experiment private information about the project make the implementation of efficient mechanisms infeasible. The difficulties of negotiating a public project on the scale of a nation would seem close to unsurmountable if unanimity is required. Centralized organizations with an amount of coercive power, like the state or the company, allow participants to bundle individual projects and reforms and take them away from purely decentralized mechanisms like open markets. Our results therefore provide some rational for the existence of such institutions. By forcing group members to participate in individual projects, the group surplus can be increased since not all participation constraints need to be satisfied. In this sense our findings give one reason for the existence of states and their coercive powers, since it does make dealing with participation constraints easier.
Acknowledgments
I foremost would like to thank my supervisor Dirk Engelmann for his continuous support and the excellent guidance over the last six (plus) years. Without his feedback and encouragement this thesis would not have been possible. Furthermore my thesis greatly benefited from the feedback and comments I received in individual talks, many presentations and consecutive discussions with numerous people. While I will acknowledge the feedback of many people in the beginning of each chapter separately, I in particular want to thank Hans Peter Grüner, Christian Koch, Henrik Orzen, Stefan Penczynski, my co-author Sander Renes and Johannes Schneider for all their input and advice.
I gratefully acknowledge the financial support from the Deutsche Forschungsgemeinschaft (SFB 884), which financed the experiments for the third chapter of this thesis.
Moreover, I thank my fellow doctoral students from the Center for Doctoral Studies in Economics (CDSE) for the inspiring atmosphere within the graduate school. Interacting with you on a professional, and sometimes even more on a personal level, was supportive and very enjoyable. Finally, I thank Eva for her continuous support and encouragement. Thank you for always being there for me.
Erlangen, September 27th 2016
Timo Hoffmann
The Effect of Belief Elicitation on Game Play: The Role of Game Properties 1
1.1 Introduction
Understanding, describing and explaining individual choices is one of the core objectives of economics. A main ingredient for this analysis are models that are formulated to explain and predict behavior. An integral part of most models, especially in strategic situations, are beliefs of subjects about the likely behavior of their opponent(s). In many models the resulting action is the best response to these beliefs. However, a large part of the experimental literature demonstrates that observed choices often are not in line with the equilibrium predictions of various models (for overviews see Kagel et al. (1995) or Camerer (2003)). The source of these differences can be non-equilibrium beliefs or a failure to best respond to beliefs. To differentiate between these explanations subjects' beliefs need to be known. Furthermore, subjects' beliefs can provide useful insights for understanding the reasons for model failures and help to differentiate between competing explanations for observed behavior. But different than action choices beliefs are usually not directly observed. Therefore to know subjects' beliefs they have either to be inferred or elicited.
If beliefs are directly elicited the question whether these elicitations affect subjects' choices arises. Only if subjects' action choices are unchanged by the elicitation of beliefs can the elicited beliefs be used to determine subjects' motives for action choices without restrictions. Additionally, the elicited beliefs can only be directly utilized to explain behavior
1 I appreciate the comments and the advice received from Dirk Engelmann, Jana Friedrichsen, Werner Güth, Nikos Nikiforakis, Henrik Orzen, Stefan Penczynski, Philipp Schmidt-Dengler, Johannes Schneider, Stefan Trautmann and Roberto Weber. I thank the participants at the Behavioral and Experimental Workshop in Florence, the EEA in Gothenburg, VfS Meeting in Hamburg, GfeW Meeting in Helmstedt, the THEEM Workshop in Kreuzlingen, RES Meeting in Manchester, NERD Workshop in Nuremberg, ENTER Jamboree in Stockholm, the Experimental Conference in Xiamen and the ESA World Meeting in Zurich, as well as seminar participants in Mannheim, Nuremberg and Tilburg for many helpful comments and fruitful discussions. An earlier draft of this paper circulated under the title "The Effect of Belief Elicitation on Game Play".
in similar situations without belief elicitation if subjects' choices are not affected by the elicitation. In this paper I examine whether belief elicitation affects subjects' choices in oneshot two-person normal-form games. The previous literature analyzing possible effects of the elicitation on observed choices obtained mixed results. Therefore the main aim of the paper is to analyze whether the (potential) effects of belief elicitation on game play depend on game properties, since the mixed results might be at least partially explained by different game properties.
Croson (1999, 2000) shows that subjects tend to contribute less in a public good game and defect more often in a prisoner's dilemma if beliefs are elicited. 2 In her study belief elicitation is therefore not neutral, but with belief elicitation subjects' choices are more in line with the theoretical predictions. Costa-Gomes and Weizsäcker (2008) analyze equilibrium play and stated beliefs in normal-form games and examine whether belief elicitation affects game play. They do not find any significant effects on chosen actions. 3 Recent articles about belief elicitation (Schlag et al. 2015; Holt and Smith 2016) conclude that there is a relatively limited number of studies on the effect of belief elicitation on choices and that the reported results are inconclusive. 4 Hence two main facts emerge from the literature: Most importantly belief elicitation does not always affect game play. Additionally, not in all studies with a significant effect belief elicitation drives subjects towards equilibrium choices. Different game properties are one possible reason for the divergent results.
To analyze whether and how belief elicitation affects choices I contrast subjects' choices in 20 two-person normal-form games in two treatments. In a first treatment (baseline) subjects state their action choices without being inquired about beliefs. In a second treatment (belief) a separate group of subjects plays the same games, but subjects always state their action choices and their beliefs about their opponents behavior simultaneously. By using games that differ in many dimensions I assess whether an effect exists for some, but possibly not all games. Furthermore beliefs of subjects are collected in both treatments. In the belief treatment beliefs are stated together with the action choices, while in the baseline treatment the belief elicitation follows after all action choices have been made, but before subjects receive any feedback. Collecting beliefs of all subjects allows me to analyze whether beliefs
2 Results in other studies of the public good game are less clear: Wilcox and Feltovich (2000) do not find an effect of belief elicitation on contributions, Gächter and Renner (2010) report increased contributions and a meta-study by Zelmer (2003) documents decreased contributions. However, this meta-study contains only a limited number of experiments with belief elicitation.
4 Nyarko and Schotter (2002) elicit beliefs in a repeated 2x2 game in the context of (belief) learning. They do not find an effect of belief elicitation on game play. Rutström and Wilcox (2009) report that belief elicitation in a repeatedly played asymmetric matching pennies game affects subjects' choices for subjects with a large asymmetry of payoffs and especially in the first rounds. However, these studies are less applicable to mine since they consider repeated interactions, while I concentrate on one-shot games.
3 There are several notable differences of Costa-Gomes and Weizsäcker (2008) to my analysis. First, in Costa-Gomes and Weizsäcker (2008) the elicitation is always done before or after the action choice. In my design the two tasks are carried out simultaneously. Second, they find no differences on the game level, but also do not analyze the individual behavior across games explicitly as I do in section 1.3.2. Third, my study considers a greater variety of games and their properties.
are different when elicited together with action choices.
Understanding whether the effect of belief elicitation depends on game properties is also an important step for advancing our knowledge on subjects' decision making processes in different situations. Especially if the effect of belief elicitation is heterogeneous for different subjects or circumstances, we can learn a lot about subjects' reasoning by understanding how an explicit belief statement influences their behavior. If the elicitation increases the awareness for the incentives of the opponent this might hint that subjects lack some strategic sophistication without belief elicitation.
The direct elicitation of beliefs requires less assumptions on the relationship between beliefs and actions than inferring beliefs from subjects' choices. This fact is especially advantageous in one-round games, when beliefs cannot be derived from previous behavior. Consequently eliciting beliefs has been frequent in the experimental literature. It has be used to test model assumptions such as actions being best responses to (own) beliefs (Huck and Weizsäcker 2002; Weizsäcker 2003; Costa-Gomes and Weizsäcker 2008) or predictions of (belief) learning models (Nyarko and Schotter 2002). Belief elicitation has also been applied in the literature about fairness and reciprocity to differentiate between reasons for "social" behavior (Offerman et al. 1996; Dufwenberg and Gneezy 2000; Gächter and Renner 2010), as well as in the literature on behavior in one-shot games (Costa-Gomes et al. 2001; Costa-Gomes and Weizsäcker 2008; Rey-Biel 2009), and in many other areas. 5
Many papers with belief elicitation simply assume that subjects' behavior (and beliefs) are not altered by these procedures. In Offerman et al. (1996), Haruvy et al. (2007), and Fischbacher and Gächter (2010) for example there are no separate treatments without belief elicitation. Some authors acknowledge a possible effect of the elicitation on stated choices (and beliefs), but argue that the observed behavior is similar to the behavior reported in closely related studies (Haruvy et al. 2007; Fischbacher and Gächter 2010). Therefore they conclude that additional treatments without belief elicitation are unnecessary. But a direct extension of the results found with belief elicitation to situations without belief elicitation is only possible if the behavior is not affected by the elicitation of beliefs. Furthermore, comparing results with belief elicitation to similar studies without the elicitation disregards many possible differences between studies. While studies might be similar, they often differ in the used subject pool, exact wording of instructions and experimental procedures. Therefore claiming that belief elicitation is without effect by simply referring to other experiments with qualitatively identical results, ignores many possible reasons why no difference is found.
A priori it is not obvious that the elicitation is without effect on subjects' decisions. Belief elicitation might influence game play due to two reasons: First, belief elicitation could modify existing beliefs of subjects. The elicitation might have subjects focus more
5 For additional references regarding papers with belief elicitation see the papers cited in the introduction of Costa-Gomes and Weizsäcker (2008) or Blanco et al. (2010).
on those beliefs and therefore lead to changed action choices. Second, subjects might not build beliefs or not base their action choices on beliefs if these beliefs are not elicited. In this case, contrary to the standard assumption, play is not belief based. For these subjects the elicitation should result in belief formation and consequently in action choices that take these newly formed beliefs into account. 6
Most game-theoretic concepts such as Nash equilibrium (NE) or even somewhat weaker concepts like rationalizablility (Bernheim 1984; Pearce 1984) assume that players possess (subjective) beliefs, meaning they have an idea in mind what their opponent will do. Often times it is not specified how these beliefs are derived, e.g. through introspection or experience, and without relevance for game play. However, concepts such as introspection or expectations often serve as the driving force behind beliefs. While those and other concepts differ in their requirements on beliefs, it is a common feature that each player has beliefs. Therefore belief elicitation, in theory, should not modify the behavior compared to a situation without elicitation, since adding a simple statement of something that players have anyway neither changes the game nor the optimal behavior.
Theory predicts slightly different results if subjects are paid to state correct beliefs, e.g. by a (proper) scoring rule like the quadratic scoring rule. If the payoff for the belief statement is additional to the game payoff, the incentive structure can change and therefore behavior might be altered. Such a change in incentives is especially likely if subjects are not riskneutral. My experimental design takes care of this issue by never paying the belief statement and the action choice in the same game. Also the possible payment for the belief statement is in the same range as the potential payoff for the game outcome to ensure that action choices are made with identical incentives in both treatments. 7
In contrast to the leading hypothesis that belief elicitation does not affect subjects' behavior, the data shows that action choices in the belief treatment differ from the chosen actions in the baseline treatment for several subgroups of games. While the data reveals no general effect of belief elicitation on game play in all games, more chosen actions in the belief treatment are in accordance with Nash equilibrium in dominance-solvable games (60.8% compared to 68.4%). In games with a symmetric alternative to the Nash-equilibrium outcome, fewer action choices are in line with Nash-equilibrium predictions if beliefs are elicited. These results show that the effect of belief elicitation on choices is neither game independent nor does the elicitation always drive subjects towards equilibrium play. While chosen actions are sometimes affected there seems to be no difference in stated beliefs between treatments. It is important to keep in mind that if the elicitation procedure affects
6 In repeated games belief learning and experience are also relevant, but since this study concentrates on one-shot environments these aspects do not apply.
7 Blanco et al. (2010) analyze the possibility to use incentivized belief statements as a hedging device. The general message of their paper is that one has to be careful if significant and transparent hedging opportunities arise. See section 1.2.1 for details on the incentives in each treatment and how hedging opportunities are addressed.
beliefs, all stated beliefs are always "modified" beliefs. The beliefs subjects hold when making their action choices in the baseline treatment are not elicited and by definition a direct elicitation of these "original" beliefs is impossible. Therefore only stated beliefs can be compared between treatments. As I will argue in more detail below these results indicate that the effect is triggered by subjects who "think harder" about the decision situation when beliefs are elicited.
The remainder of the paper is structured as follows: Section 1.2 outlines the experimental design and states possible reasons why game play might be affected by belief elicitation. The data is analyzed in section 1.3 by first examining the chosen actions and then stated beliefs, while section 1.4 concludes.
1.2 Experimental design and hypotheses
In this section I first describe the experimental design, the difference between the two treatments and how subjects' beliefs are elicited. Then I present the used games and discuss their structure before the hypotheses for the experiment are outlined.
1.2.1 Overall experimental design
The experiment consists of two treatments. In both treatments subjects play a series of 20 normal-form games. In the baseline treatment subjects state their choices for all games without stating a belief about the chosen action of the other player. In the belief treatment subjects play the games in the same order, but always state their beliefs and their decision for a game at the same time. Therefore subjects in the belief treatment are asked to indicate their choice and to state their beliefs simultaneously. Beliefs of subjects in the baseline treatment are elicited for all games after all 20 action choices have been made. For the belief statements in the baseline treatment the games are presented to subjects in the same order as for the action choices. While they see the game matrix of the respective game when stating their beliefs subjects in the baseline treatment are not reminded of their own action choices in this game. Also subjects are only asked to state their beliefs and are not given the opportunity to make a (new) action choice. 8
In both treatments no feedback on the choices of the other subjects is provided until the end of the experiment. Subjects can move from one game to the next at their own speed, but once they submitted an action or belief they cannot return to previous games to alter
8 This design reduces the probability that the belief statements of subjects in the baseline treatment are chosen in such a way that the previous action choices are rationalized. It therefore allows to analyze whether belief statements differ if they are elicited simultaneously with action choices or after the actions have already been chosen. However, probably not all subjects remember their action choices (correctly), which might affect the number of action choices that are best responses to the stated beliefs (see section 1.3.5 for an analysis of the stated beliefs).
their decisions. In all sessions half of the subjects are randomly assigned the role of "row"players and the other half are "column"-players. All games are presented to all subjects as row players to prevent any effect of the game representation on action choices or belief statements. For each game subjects are matched with one player of the other type. The matching is completely anonymous and changes after each round. Having all subjects play each game only once, disguising the role change for asymmetric games with the isomorphic transformations and rematching subjects ensures that interactions are one-shot as much as possible. Focusing on one-shot games has the advantage that learning between games is unlikely and that therefore interaction effects between belief elicitation and learning that could affect chosen actions are prevented. 9
In both treatments each subject's belief over his or her opponent's two (or three) action choices is elicited with a proper scoring rule. Subjects are asked to state how likely they think it is that the other subject chooses an action by stating a probability pk ∈[0,100] for each possible action k. 10 Therefore subjects state a probability distribution over all possible actions of the other player. The following quadratic scoring rule determines the payoff for the belief elicitation: Si(p) = α − β Σ n k=1 ( I k − p k ) 2 . α and β are constants, while the indicator function Ik represents the choice of the other subject. It is set to 100 for the actual choice and to zero for the other action(s). For both treatments α = 80, β = 0.004 and each point is valued at 5 cents. The chosen parametrization limits the payoff for belief statements to 4e and ensures that the payoffs for the actions are in the same range as the payoffs for the stated beliefs.
Subjects are informed that reporting the expected value of their subjective probability distribution over the other player's actions maximizes their expected payoffs. Stating beliefs truthfully is therefore optimal for risk-neutral subjects. 11 In the baseline treatment subjects are told in the beginning of the experiment that there are two parts. They first enter their choices for all games and only after the completion of this first part they are informed about the content of the second part. They are then given instructions for the second part before they state their beliefs. The belief treatment consists only of one part, since actions and beliefs are stated at the same time.
Paying the action and belief of a subject in the same game might result in hedging opportunities that distort the action choice as demonstrated by Blanco et al. (2010). If only the beliefs or the action choice is paid for a game subjects cannot use their belief statement to insure themselves against unwanted outcomes. My experimental design takes care of
9 No-feedback learning as in Weber (2003) is possible, but can be controlled for since due to player roles subjects play the asymmetric games in a slightly different order (see section 1.3.1).
11 There exist scoring rules that are more robust to different risk preferences, e.g. see Holt and Smith (2016) or Schlag et al. (2015). Since these scoring rules are usually more difficult for subjects to understand and the fact that my main research question only relies on the elicitation of the beliefs, but not on the stated beliefs themselves, I consider the quadratic scoring rule to be appropriate. Potential confounds of the used scoring rule for the reported beliefs are discussed in section 1.3.4.
10 Subjects can also enter decimals. All two/three belief statements for a game have to sum up to 100.
possible hedging opportunities by only paying the belief statement or the chosen action for a given game. A random draw at the end of each session determined six games that were selected for payment for all individuals in this session. In three games subjects are paid the payoff resulting from the action choices and in three different games subjects are paid for their stated beliefs.
The experiment was carried out in the experimental laboratory of the University of Mannheim (mLab) in November / December of 2012 and March of 2013 using zTree (Fischbacher 2007). Six sessions were conducted (three sessions for each treatment) with a total of 122 subjects, mostly undergraduate students of the University of Mannheim, recruited via ORSEE (Greiner 2015). All subjects participated only in one treatment and earned 15.24e on average. 12 A session lasted always less than 90 minutes.
1.2.2 The games
All games in the experiment are two-person games with two or three actions for each individual, which means the games are of the 2x2, 3x3 or 2x3 form. There are 12 distinct games: 4 symmetric and 8 asymmetric games. Since subjects play every asymmetric game in both roles there are 20 games in total. However, subjects do not play the exact game in both roles, but rather isomorphic transformations. 13 For each asymmetric game a second game is created by transposing the player roles, changing the order of actions and adding or subtracting a constant to all payoffs. Therefore there are eight pairs of equivalent games. This modification leaves all relevant properties of the game (like Nash equilibria and dominance relations) unchanged and results in a total of 16 asymmetric games played by each subject. Because these non-trivial transformations of payoffs and order of actions disguise the equivalence of games, it is unlikely that subjects realize that they play each game in both roles. Additionally two equivalent games are never played in direct sequence. Due to the isomorphic transformations, behavior of row players in asymmetric games can directly be compared to behavior of column players in the equivalent game.
Tables 1.1 and 1.2 list all games and used transformations. To analyze whether game properties play a role in the effect of belief elicitation on action choices the used games vary in multiple dimensions. Besides being either symmetric of asymmetric, important characteristics that differ between games are whether a game is dominance-solvable, if it has a unique or multiple pure-strategy Nash equilibria, whether the Nash equilibrium is Pareto dominated by another outcome and whether or not an alternative outcome to the Nash equilibrium with symmetric payoffs for both subjects exists. 14 Table 1.3 summarizes the main differences
12 This average contains only five sessions, since in one session a computer crash made it impossible to recover the matching. Subjects in this session received a fixed payment. The crash occurred after all decision and belief statements had been recorded. The datafile containing all decisions and belief statements could be recovered and the data is used in the analyses.
14 None of the games has a mixed-strategy Nash equilibrium.
13 A similar procedure has been used by Costa-Gomes and Weizsäcker (2008).
between games that become relevant in the analysis.
Table 1.1: Games 1-12
Game 1 'M'
20, 30
'B'
0, 20
20, 20 100, 10
10, 100 100, 100
Game 3
'T' ' M' 'B'
T 10, 10 49, 58 37, 60
M 58, 49 22, 22 16, 36
B 60, 37 36, 16 38, 38
Game 5
L R
55, 79
T 84, 52
Game 4
'T' 'M' 'B'
T 26, 2622, 17 18, 24
M 17, 22 11, 11 33, 21
B 24, 18 21, 33 20, 20
Game 6
L R
T 48, 80 89, 68
B31, 46 72, 93
B75, 51 42, 27
Game #6's payoffs are obtained by subtracting four points from Game #5's payoffs.
Game 7
L C R
T 74, 38 78, 71 46, 43
M 96, 12 10, 89 57, 25
B 15, 51 83, 18 69, 62
Game #8's payoffs are obtained by adding two points to Game #7's payoffs.
Game 9
Game 10
L C R
T 31, 25 23, 1242, 33
M 36, 36 30, 20 18, 27
L C R
T 29, 20 18, 2535, 44
M 22, 32 44, 31 14, 25
B 48, 31 29, 42 23, 16
B 38, 38 33, 50 27, 33
Game #10's payoffs are obtained by adding two points to Game #9's payoffs.
Game 11
Game 12
L C R
T 52, 23 36, 27 16, 41
M 61, 31 31, 46 22, 28
L C R
T 49, 3024, 18 37, 12
M 11, 76 27, 57 19, 48
B 80, 15 12, 40 34, 53
B 36, 8 42, 27 23, 32
Game #12's payoffs are obtained by subtracting four points from Game #11's payoffs.
'T'
T 40, 40
M 30, 20
B 20, 0
T
Game 13
L C R
T 43, 6811, 31 23, 31
M 38, 38 44, 2551, 38
Game 14
L C R
T 33, 13 27, 46 31, 54
M 33, 2540, 5335, 47
B 31, 12 52, 29 45, 33
B 70, 45 40, 40 14, 33
Game #14's payoffs are obtained by adding two points to Game #13's payoffs.
Game 15
Game 16
L R
T 74, 6243, 40
M 25, 12 76, 93
L C
T 10, 23 35, 57
R
60, 72
B91, 74 14, 92 38, 41
B 59, 37 94, 16
Game #16's payoffs are obtained by subtracting two points from Game #15's payoffs.
Game 17
Game 18
L C R
67, 4643, 31 61, 16
B32, 86 52, 52 89, 62
L R
T 42, 6382, 28
M 12, 57 58, 85
B 27, 39 48, 48
Game #18's payoffs are obtained by subtracting four points from Game #17's payoffs.
Game 19
L C R
T 32, 29 26, 18 39, 39
B19, 28 45, 32 42, 19
Game #20's payoffs are obtained by adding two points to Game #19's payoffs.
Notes: Tables 1.1 and 1.2 display all 20 games used in the experiment. All even games from game 6 on are isomorphic transformations of the previous game. In those games the payoffs are slightly changed and the order of actions is modified compared to the previous game. In all treatments and sessions the order of games was identical: 7, 11, 2, 8, 12, 19, 1, 6, 20, 5, 10, 13, 17, 9, 18, 14, 4, 16, 3 and 15. This sequence ensures that equivalent games are never played directly after each other. Nash equilibria outcomes are underlined in the payoff tables.
Table 1.2: Games 13-20
Table 1.3: Game properties
Overview of selected gameprope
rti es
for all games
Notes: Game numbers correspond to game numbers in tables 1.1 and 1.2. E for NE Pareto dominated means that the other outcome is also a NE, W for symmetric alternative means that the symmetric alternative(s) are weakly dominated by the NE.
1.2.3 Hypotheses
If belief statements and action choices are properly incentivized the payments for the stated beliefs should not affect subjects' action choices due to hedging. But there exit two other channels through which subjects' choices might be affected by eliciting beliefs. First, beliefs are usually elicited based on the idea that subjective beliefs are relevant for subjects' action choices. If this assumption is true than chosen actions of subjects might change if beliefs are altered by the elicitation. Existing beliefs could be altered due to the elicitation, because subjects modify their otherwise coarse beliefs if they are asked to state exact numbers for their beliefs or subjects' understanding of the decision situation is increased by the belief statements. Second, subjects who do not form beliefs if they are not asked to state them or subjects' whose action choices are not belief based might condition their action choices more heavily on their beliefs if they are required to state them. In both cases subjects' chosen actions in the same decision situation could differ dependent on whether they are asked to state beliefs or not.
If subjects hold beliefs, even when they are not elicited, and play is belief-based, being asked to put exact numbers on the expected behavior of the other player could motivate subjects to think more about the game in general and about the choice of their opponent in particular. This increased effort could lead to a modification of the "original" beliefs (the beliefs a player has without being explicitly asked to state them) though the increased involvement with the game at hand and thus lead to a deeper understanding of the decision situation. This "thinking-harder" hypothesis predicts subjects behave "more like a game theorist" (Croson 2000) compared to situations without belief elicitation. According to this hypothesis belief elicitation should result in an increased frequency of action choices that are part of a Nash equilibrium and therefore I should observe more equilibrium play in the belief treatment compared to the baseline treatment.
The differences between the treatments should be larger for games in which beliefs are more likely to be affected by an increased sophistication of subjects. More specifically, in dominance-solvable games stating own beliefs about the action choice distribution of the opponent can lead to the discovery of a dominated action of the other player. When a player observes that an action of the other player is dominated, he or she should place a zero (or very small) probability on the likelihood that this action is played. In dominance-solvable games such a belief often results in an own action that should not be chosen, since it is now "iteratively" dominated. The action is only dominated if an action of the other player is assumed not to be chosen. In such a case the modification of beliefs due to the discovery of an iteratively dominated action can influence the own action choice. Therefore the difference in chosen actions between the treatments should be larger for dominance-solvable games.
If play is not belief based subjects employ other mechanisms or (simple) heuristics to determine which action to choose. A subject might always pick the action that yields him or her the highest possible payoff, select the action which ensures him or her the highest payoff for sure (max-min choice) or even choose an action randomly. These strategies do not require any expectations about the behavior of the other player. While this behavior might be unlikely in situations in which subjects possess a lot of experience, it is more likely in the studied context of one-shot games in which the question whether subjects hold meaningful beliefs at all arises. 15
For subjects who do not to base their action choices on beliefs, the elicitation could induce some beliefs. As subjects are required to state beliefs and rewarded for correct predictions, it is likely that they actually think about the other player's most probable action and thereby form meaningful beliefs. Given that they spend effort in deriving their beliefs and in the belief treatment they have not made a final action choice yet, they might consider these beliefs to select their action. Therefore for those subjects the elicitation could lead to a change in behavior. Furthermore, for subjects who have beliefs, but do not take these beliefs into account for their action choice, the elicitation could encourage them to actually consider these beliefs in their action choice. If that is the case, also for these subjects the chosen actions might be different with belief elicitation. Consequently the choice distribution could be changed compared to a situation without belief elicitation for both types of players. Additionally, if subjects best respond to their beliefs, it is more likely that a player selects an action which is part of a Nash equilibrium, since a Nash equilibrium exactly defines mutual best responses. While this effect should be present in all games, it will most likely be more pronounced in games in which the formation of beliefs has a decisive effect on players' decisions. Therefore, similar to the prediction stated above, a stronger effect on game play is expected for dominance-solvable games.
Furthermore, if eliciting subjects' beliefs actually influences game play the effect has likely different implications for very sophisticated subjects and subjects who are less sophisticated. In the extreme case the action choices of a fully rational subject who always plays according to Nash equilibrium predictions even without belief elicitation should not
15 Although learning between multiple one-shot games could take place, since no feedback about the choices of the other players is given until the end of the experiment, only "no-feedback learning" is possible, which I consider not very likely.
be affected. Such a player is already assuming that his or her opponent plays the equilibrium action and therefore his or her beliefs should not change due to the elicitation. On the other side of the spectrum are subjects without any beliefs, e.g. a player that chooses the action which can yield him or her the highest possible payoff or a player who does not consider the incentives of his or her opponent. For these subjects the belief statements might help to organize their thoughts in a meaningful manner and therefore increase the probability of equilibrium play. If that is the case models of game play that consider various levels of subjects' sophistication should result in different distributions of subjects' types between the treatments. Especially, I consider several player types as defined by the level-k model (Stahl and Wilson 1994). I expect a larger share of subjects being classified as relatively sophisticated, e.g. showing a higher level of strategic reasoning, in the belief treatment than in the baseline treatment.
But belief elicitation is also an additional task subjects have to perform. Since subjects have to understand how to state their beliefs and how they are rewarded for it, belief elicitation could lead to more confused subjects and result in more random action choices. Therefore belief elicitation induces a different choice due to confusion. If that is the case, I would not consider it as an effect of the elicitation, but rather the consequence of poor instructions. Since all decisions in this experiment are made without any time pressure I consider it unlikely that the additional task distracted subjects. Nevertheless, if it was the case, it should result in less equilibrium play, since there is no reason why a confused subject should play as predicted by a theory that has strong demands on subjects' rationality and strategic sophistication. Therefore distraction works in the opposite direction as predicted by the two hypotheses above and would weaken a potential effect. Also if the belief elicitation is rather a burden than a supportive tool for less sophisticated subjects, it is not clear that the distributions of different "sophistication types" differs between the treatments.
1.3 Results
1.3.1 Preliminaries
The experimental design with row and column players playing isomorphic games was chosen assuming that this variation does not affect subjects' behavior. While for both types all games are equivalent, the order of games differs between row and column players. If the transformation and the different order of games is without consequences for the chosen actions, I can pool the data across player roles. To test whether the transformations or the order of games affects subjects' action choices I contrast row players' choices in asymmetric games with the action choices of column players in the transformed game (and vice versa). For symmetric games no test is necessary, since all players see the games as row players. Such a test compares categorical data between independent samples, therefore I conduct
Fisher's Exact Probability Tests (FEPT) for count data. 16
Comparing subjects' aggregate actions separately on each game in each treatment yields only two significantly different distributions between types, which is in line with the expected number of rejections for 40 comparisons. 17 For the tests in the next sections the data is therefore pooled across player roles. To analyze whether the chosen actions are different from random play I perform χ 2 goodness of fit tests separately for each game. Testing the chosen actions yields 32 significant differences from the uniform distribution (out of 40). 18 The frequent deviations from random play in both treatments clearly demonstrates that subjects' choices are not random. These results yield that player roles are without effect on game play and that actions are not picked randomly.
Before discussing the effect of the belief elicitation on the data I provide the frequencies for all action choices in all games and treatments. Table 1.4 contains the percentage of actions chosen for all 20 games separately for the two treatments and player roles.
There are two main take aways from the numbers reported in table 1.4. First, there seems to be some heterogeneity among subjects' choices. In very few games an action is chosen by more than 75% of subjects. Second, while subjects' choices are heterogeneous the choice frequencies already indicate that subjects' behavior is not random. In many games one action is only chosen by a small fraction of subjects. While subjects seem to have a common understanding of which actions are less desirable, they do not agree on which action is the "best" in most cases.
1.3.2 Belief elicitation and the role of game properties
The research about the likelihood of Nash-equilibrium play has shown that various game properties and the decision environment affect the predictive power of Nash equilibrium, e.g. see Rey-Biel (2009) for normal-form games. It is likely that the effect of belief elicitation on game play also depends on game properties. Given the mixed results reported in the literature whether belief elicitation affects the likelihood of action choices that are part of a NE, it is especially interesting to analyze the role of game properties jointly with a possible effect of the belief elicitation. In order to exploit the various game properties of the games used in
16 There exists a literature regarding the best tests for contingency tables showing that unconditional tests like Boschloo's test have greater power than conditional tests like the FEPT at least in 2x2 tables. However, the power advantage vanishes quickly with sample size for larger tables like 2x3 tables, e.g. see Mehta and Hilton (1993). Since most of the 20 games studied in this paper are not of the 2x2 form, the additional computational difficulties for using unconditional tests are large compared to the potential gain in power. Therefore FEPT are used for the following analysis.
18 For 5 games in the baseline treatment, games 2, 6, 16, 19 and 20, and 3 games the belief treatment, games 6, 19 and 20, there are no significant differences from random play. In the pooled data only the choices in games 6, 16 and 19 are not different from random play.
17 All test in this paper are two-sided unless explicitly stated otherwise. In game 11 in the baseline treatment (p-value < 0.01) and game 8 in the belief treatment (p-value = 0.02) the differences between the player roles are significant. All other p-values are above the 5%-level and are usually much higher.
Table 1.4: Percentages of chosen actions by game, treatment and player role
Notes: A - indicates that there was no action for this player role in the given game. Games 1-4 are symmetric games, therefore there are no column players, but all action choices are reported in the columns for row players. Due to player roles and the changed order of actions between equivalent games the stated percentages cannot directly be compared across player roles even for isomorphic transformations. All entries are in %.
the experiment each decision (action choice) of an individual is analyzed separately. The variable of interest is whether the chosen action is part of a pure-strategy NE or not. Since each subject made 20 decisions there are in total 2440 observations (122 subjects) available for the analysis.
The main properties considered are whether a game is dominance-solvable, whether a game is symmetric, whether a symmetric alternative to the NE exists and whether the NE is Pareto dominated by another outcome. I run a probit model on dummies for these four game properties: dominance solvability (dominance solvable), symmetry (symmetric), whether the NE is Pareto dominated by another outcome (NE dominated) and whether a symmetric alternative to the NE exists (symmetric alternative). Also a treatment dummy for decisions made in the belief treatment is used (belief treatment). Additionally all game property dummies are interacted with the treatment dummy to control for possible interaction effects: dominance-solvable games and the treatment (dominance solvable & belief treatment), symmetric games and the treatment (symmetric alternative & belief treatment), NE dominated and treatment (NE dominated & belief treatment ) and symmetric alternative and belief treatment (symmetric alternative & belief treatment ). Since in this analysis all decisions of an individual are considered separately, it is very likely that the residuals are not homogeneous,
Table 1.5: Probit estimation of NE
Notes: Probit estimates. Marginal effects (evaluated at the mean of independent variables); * p < 0.10, ** p < 0.05, *** p < 0.01. All standard errors are clustered at the subject level.
as the errors of the same subject are most likely correlated. Therefore the shown regression includes standard errors that are clustered at the subject level.
The fist result from the regression is that there is no significant treatment effect on the likelihood of equilibrium play across all games. The coefficient on the treatment dummy (belief treatment) is not significantly different from zero. Subjects who are asked to simultaneously state their beliefs and action choice are not more likely to select an action that is part of a pure-strategy NE than subjects who only choose their action.
Result 1. Belief elicitation does not generally increase the probability of equilibrium play.
Result 1 does not necessarily indicate that there is no effect of belief elicitation on game play, since in the analysis all games are considered jointly. But the finding is evidence that suggests that if there is an effect on game play, it is not homogeneous for all games and all subjects. The regression coefficients on the four considered game properties show that game properties affect the likelihood of equilibrium play. The probability of NE play is significantly increased in games which are dominance-solvable or symmetric. The coefficients for both dummy variables (dominance solvable and symmetric) are significantly positive (pvalues < 0.01). Furthermore NE play is less likely if the NE is Pareto dominated by another available outcome (NE dominated). Whether a symmetric alternative exists does not affect the probability of equilibrium play (symmetric alternative is not significantly different from
zero).
Result 2. Game properties have a significant influence on the chosen actions.
(i) More actions in accordance with NE are played if the game is dominance-solvable or symmetric,
(ii) and less NE actions are chosen if the NE is dominated by another outcome.
The hypotheses outlined above predict a stronger effect of belief elicitation on chosen actions for games that are dominance-solvable. This hypothesis is supported by the significantly positive coefficient on the interaction between the dominance-solvable games and the treatment (dominance solvable & belief treatment, p-value < 0.05). While the size of the interaction effect is modest, compared to the effect of dominance solvability alone, it is important to note that this effect is basically "on top". Subjects in the belief treatment are more likely to choose an action that is part of a pure-strategy NE in dominance-solvable games than subjects in the baseline treatment.
The data reveals an opposite effect for games with a symmetric alternative. The coefficient for the interaction effect between the symmetric alternative and the treatment (symmetric alternative & belief treatment) is negative and significantly different from zero (p-value < 0.05). Therefore in the belief treatment NE play is less likely in games with a symmetric alternative. The two interactions between the belief treatment and the symmetric games or games with a dominated NE are not significant. Belief elicitation does not affect the probability of equilibrium play for these games. 19
Result 3. Belief elicitation affects the chosen actions. If beliefs are elicited together with actions
(i) more actions in accordance with NE are chosen in dominance-solvable games,
(ii) and less NE actions are played if a symmetric alternative to the NE exists.
Overall the analysis of the individual game properties results in two main findings. First, there is treatment effect on the likelihood of NE action play due to belief elicitation in two subgroups of games. In dominance-solvable games belief elicitation increases equilibrium play, while the probability is reduced by the elicitation in games with a symmetric alternative. Second, the results of the role of game properties on the likelihood of NE play, independent of the treatment effect, are in line with other findings in the literature. 20
19 The results are qualitatively unchanged if a logit model or a linear regression is used. In table A.2 in the appendix the results of a linear probability model and a logit estimation with marginal effects are reported.
20 Costa-Gomes et al. (2001) report higher rates of equilibrium compliance for games that are dominancesolvable, especially for games that are solvable in 1 or 2 rounds of iterated pure-strategy dominance. Rey-Biel (2009) reports higher percentages of equilibrium play for constant sum normal-from games compared with variable sum games (78% vs 68%).
1.3.3 Treatment effects on subjects' choices
In this section I first analyze whether belief elicitation affects games play by considering subjects' choices in each game separately. Then I analyze whether subjects are differently affected by the elicitation by comparing subject specific measures on the probability of equilibrium play over games and then compare the distribution of this measure between treatments. Since many experiments have shown that Nash equilibrium predictions and subjects' decisions do not always coincide, I consider some alternative models that have been applied to explain subjects' choices in similar games. Based on their choices I classify subjects into different types and examine whether there is a difference in the distributions of these types between the treatments.
In order to test whether there exists a treatment effect regarding the chosen actions in the individual games, I perform FEPT to compare the chosen actions between treatments. Testing all 20 individual games for differences between the treatments, I find a significant difference only in two games. 21 Therefore the data from the individual games does not imply a treatment effect. While the difference is not significant in most games, it is interesting to note that in seven out of the ten games that have a unique NE and are dominance-solvable, the share of NE actions selected is higher in the belief treatment. This observation is in line with result 3(i), while the insignificant differences for most games supports result 1.
The data of the individual games does not reveal a lot of information about what is happening between the treatments. Therefore to identify whether the elicitation of beliefs has an influence on the decision of subjects, I calculate for each subject the total number of actions chosen in accordance with NE predictions. The measure "# NE actions chosen" counts how often an individual picks an action that belongs to a pure-strategy NE of the game. Overall, subjects in the baseline treatment play an action in accordance with NE in 54.6% of all cases. This percentage is in line with previous results on normal-form games. 22 The share of equilibrium actions chosen is 58% in the belief treatment. According to a Mann-Whitney-U (MWU) test this difference is not statistically significant (p-value = 0.14) and therefore confirms result 1 from above.
However the hypotheses outlined above predict a stronger effect for games that are dominance-solvable and the probit regression also yields an effect for these games. If only dominance-solvable games are analyzed the picture changes and the effect size increases. Figure 1.1 presents for each individual how often she or he selected an action in accordance with a NE for all 13 dominance-solvable games. The right histogram, which shows the distribution for the belief treatment, seems to be shifted to the right compared to the left, which
21 The difference is significant in games 5 and 10. The result is unchanged if not all actions are compared, but only whether an action that is part of a pure-strategy NE or not.
22 Of course the percentage highly depends on the games played. Rey-Biel (2009) for example finds higher rates of equilibrium play in arguably "easier" games, while Costa-Gomes and Weizsäcker (2008) find lower rates.
presents the distribution in the baseline treatment. While the percentage of equilibrium actions played increases in both treatments (to 61% for the baseline and to over 68% for the belief treatment), the difference between the two treatments is much larger and significant at the 1%-level (MWU test, p-value < 0.01). 23 Analyzing subjects' choices between treatments for dominance-solvable games therefore confirms result 3(i).
The thinking-harder hypothesis implies that belief elicitation guides subjects to invest more effort in thinking about the decision situation and therefore they better understand the situation. This deeper understanding should result in more action choices in line with game theoretic predictions. In dominance-solvable games subjects should detect dominant or dominated actions of the other player more often. As a consequence subjects will act based on this knowledge and therefore will less often pick actions that are iteratively dominated, meaning actions that are only dominated if one eliminates all dominated actions of the other player from consideration.
Surprisingly this effect cannot be found. Similar to the measure "NE actions chosen" above, I sum up the number of games in which a subject plays an action that is not iteratively dominated and compare these aggregates between treatments. There is no difference between the treatments. In the baseline treatment subjects play an iteratively dominated action in about 4.4 games, while in the belief treatment subjects select such an action in about 4.2 games (MWU test, p-value = 0.63). Therefore the chosen actions do not indicate that subjects are more likely to detect a dominated action of the other player and respond accordingly
23 Further restricting the set to games which are strictly dominance-solvable, meaning only including games that are dominance-solvable by eliminating actions that are strictly dominated, yields similar results (MWU test, p-value = 0.01). Dropping the observations from the crashed belief session yields the same qualitative results.
in the belief treatment.
Result 4. Iteratively dominated actions are equally like to be played in both treatments.
While result 3(i) shows that equilibrium play increases in dominance-solvable games, there is no differences in avoiding iteratively dominated actions between treatments. Playing an iteratively dominated action means that either a subject does not realize that his or her action is iteratively dominated or does not believe that the opponent realizes the domination of one of his or her actions. In both cases a subject might play an action that is iteratively dominated, but in the second case the subject is aware of the domination. There is a weak indication that belief elicitation increases the understanding of the game for subjects which would support the interpretation that subjects are more likely to be aware of the domination if their beliefs are elicited. In the baseline treatment subjects play an action that is dominated (not iteratively dominated) on average in 2 games. In the belief treatment subjects play such an action in 1.4 games. While the difference is not significant (MWU test, p-value = 0.12), this observation could hint that the "thinking harder" due to the belief elicitation helps subjects to detect an own dominated action. In that case the "thinking harder" would take place at a "lower level" than expected.
The analysis so far focused on NE play and how belief elicitation and game properties influence the likelihood of NE play. Since many experiments have shown that Nash equilibrium predictions and subjects' decision do not always coincide, various alternative models have been applied to explain the choices made by subjects. A very prominent one is the level-k model of cognitive reasoning developed by Stahl and Wilson (1994) in which player types differ in their strategic thinking ability.
Subjects with a low level of sophistication are assumed to have no beliefs about the behavior of their opponent(s). While different versions of how these subjects make their decisions exist, one frequently used assumption is that they choose their action randomly from all available options. The version of the L0 model I use therefore predicts that a player choses all available actions with equal probability. A player who plays a L1 strategy best responds to the predicted choice of a L0 player and a L2 player best responds to the play of a L1 player. Higher levels of play, like L3, L4 etc., are defined accordingly. Since previous studies have found that only very few subjects choose strategies according to the predictions of L4 or higher types, I consider the strategies L1 to L3. The other models of game play considered are D1, D2, Maxmin and Efficiency. The D1 model predicts that a player best responds to a subject choosing all available undominated actions with equal probability. D2 players best respond to the predicted choice of a D1 player. A Maxmin player selects the action with the highest minimum payoff, while an Efficiency (Ef) type picks the action that maximizes the (potential) sum of both players' payoff. An efficiency player therefore chooses the action, which can lead to the cell with the highest sum of payoffs for both players.
Table 1.6 states how many of the chosen actions are in accordance with the predictions
Table 1.6: Percentage of actions matched by models' predictions
| Treatment | Games | NE | L1 | L2 | L3 | D1 | D2 | Ef |
|---|---|---|---|---|---|---|---|---|
| Baseline | not DS DS All | 0.43 0.61 0.55 | 0.57 0.60 0.59 | 0.48 0.59 0.55 | 0.43 0.50 0.47 | 0.53 0.56 0.55 | 0.41 0.52 0.48 | 0.47 0.41 0.43 |
| Belief | not DS DS All | 0.39 0.68 0.58 | 0.58 0.60 0.59 | 0.50 0.65 0.60 | 0.40 0.56 0.51 | 0.55 0.61 0.59 | 0.44 0.59 0.54 | 0.50 0.33 0.39 |
| Average | All | 0.56 | 0.59 | 0.58 | 0.49 | 0.57 | 0.51 | 0.41 |
of the various models. The table lists the percentages split for the treatments baseline and belief, and further contains the results only for dominance-solvable games (DS) and games that are not dominance-solvable (not DS). The last row displays the percentages pooled for both treatments and all games. The table illustrates again that more actions in accordance with Nash equilibrium have been chosen in dominance-solvable games. For all splits the percentage of NE actions is higher for DS games compared to not dominance-solvable games and, as discussed in section 1.3.2 above, the effect is larger in the belief treatment. Considering all choices in all treatments, L1, L2 and Maxmin are slightly better than the NE predictions, but the differences are not large. The worst performing model is the Efficiency model, which does extremely poor for dominance-solvable games especially in the belief treatment. 24
While between the treatments the number of choices correctly predicted by the L1 model are roughly similar (always within one %-point), the differences for models with higher strategic thinking requirements (L2, L3, D1 and D2) are larger. More subjects in the belief treatment make choices in accordance with these models compared to the subjects in the baseline treatment (an increase of 4 to 6%-points). Similar to the difference in NE actions chosen, the difference between the treatments mainly stems from dominance-solvable games. Subjects' choices in the belief treatment are more in line with model predictions of higher cognitive reasoning levels.
The paragraphs above consider each choice of a subject separately. In the remainder of this section subjects are classified according to their individual choices in all 20 games jointly. "X-type players" are subjects for which model "X" makes the most correct predictions. Clear cases are subjects for which one model predicts more choices correctly than any other considered model. Ties are stated for subjects for which exactly two models predict the most chosen actions correctly. In this case a subject is proportionally allocated to these two models. Therefore, if three or more models predict equally many choices of a subject correctly, and no other model makes more correct predictions, the subject is still classified as not identified. Table A.1 in the appendix states the results for this classification.
The classification leads to about a quarter of all subjects not being sorted into one of the eight categories. For the eight models considered here there is one notable difference
24 For the 20 games (6 with two and 14 with three actions) the probability for predicting the correct choice is about 38.1% for purely random predictions. Therefore the 39% of the Efficiency model are really weak.
between treatments. When all games are considered the biggest treatment difference is the portion of subjects who are classified as Efficiency types. Many more subjects are classified as Efficiency types in the baseline compared to the belief treatment (15% vs. 4%). There is no big difference in any other category.
Next subjects are classified based on their choices in dominance-solvable games only, since it was demonstrated that subjects' choices differ between treatments in these 13 games. Therefore by restricting the classification to these games, it becomes more likely that the simple sorting mechanism applied here (the modal number of correct predictions) can identify a difference between the treatments.
Table 1.7: Classification of subjects by model predictions - only dominance-solvable games
| Model | Clear cases Baseline Belief (1) (2) | | Ties Baseline Belief (3) (4) | | Clear cases and ties Baseline Belief (5) (6) | |
|---|---|---|---|---|---|---|
| NE L1 L2 L3 D1 D2 Ef Maxmin not identified | 13.33 13.33 11.67 0.00 1.67 0.00 15.00 15.00 30.00 | 29.03 14.52 12.90 0.00 3.23 0.00 4.84 14.52 20.97 | 3.33 5.00 5.00 0.83 4.17 0.00 2.50 2.50 6.67 | 1.61 1.61 1.61 0.00 1.61 0.81 0.81 1.61 11.29 | 16.66 18.33 16.67 0.83 5.84 0.00 17.50 17.50 6.67 | 30.64 16.13 14.51 0.00 4.84 0.81 5.65 16.13 11.29 |
Notes: The first and second column only state unique predictions. The ties, which are reported in the third and fourth column, are ties between exactly two models. In case of a tie the subject is classified as 50% for each model in the last two columns. All entries are in %.
The result of this analysis is presented in table 1.7. Columns one and two state the clear cases for all models, while the ties between exactly two models are listed in columns three and four. The last two columns list the total percentage of subjects for each model split for the two treatments, including clear cases and ties. Regarding the procedure to allocate subjects in case of a tie refer to the description above.
The table shows that many more subjects are classified as "Nash" players in the belief treatment - almost twice as many - compared to the baseline treatment. The 30% of subjects classified as "Nash" players are the largest group within the belief treatment. About twice as many subjects are in this group compared to the next best performing model. Given that in the belief treatment more choices are in line with the prediction of Nash equilibrium in dominance-solvable games the difference between the treatments is not surprising. The only other notable difference is for the Efficiency model. While 17.5% of subjects in the baseline treatment are classified as Efficiency types, less than 6% are in this category for the belief treatment. The percentages in the other categories are similar in both treatments. The number of subjects who cannot be classified is much higher for the belief treatment once ties between two models are considered. For some reason there are many ties between exactly two models in the baseline treatment, but many more ties between three or more models in the belief treatment.
There are two major findings: First, belief elicitation affects game play for dominancesolvable games and leads to more equilibrium play. Consequently more subjects are classified as Nash equilibrium players in the belief than in the baseline treatment. Second, at least for the games considered here, no other player type of cognitive reasoning outperforms the Nash predictions. However, one has to keep in mind that a cognitive reasoning model consists of more than a single type. This analysis indicates that the treatment effect of belief elicitation influences all subjects and not in particular subjects with a low level of cognitive reasoning. The results regarding the type distribution in both treatments support the explanation that belief elicitation leads to a better understanding of the situation at hand, but does not result in a huge improvement of the strategic sophistication of subjects.
When discussing the classification considering all choices as well as the classification based on the dominance-solvable games, it is important to keep in mind that the experiment was not designed to generate differences between these models. Different than in studies that focus on cognitive reasoning models, the games are not selected to produce differences between the model predictions. Out of the 20 games, the NE and the L1 model therefore predict different actions to be chosen only in nine games. Naturally the number of games for which the predictions are different to NE are even lower for models of higher cognitive reasoning like the L2 or the D2 model. There are four games in which the predictions for the chosen action are different between the L2 and the NE model and three games for the predictions made by the D2 and the NE model. Therefore I consider it surprising that there are the reported differences between the models' success in predicting choices.
In sum the results presented so far can be interpreted in favor of the "thinking-harder" hypothesis. The fact that belief elicitation affects game play mainly in dominance-solvable games and that the effect results in more equilibrium play is in line with the idea that subjects who state their beliefs gain an increased understanding of the game. Spending more effort in understanding the game can also explain result 3(ii). If subjects get more familiar with the game, they might play an equilibrium action more often, but also they seem to get aware of the existence of symmetric alternatives and consequently choose this alternative more often. Since the action that results in the symmetric payoff profile is not the equilibrium action choice, the probability of equilibrium play in these games is reduced with belief elicitation. Therefore these results are consistent with subjects inspecting the game more carefully when they are asked to state their beliefs and thereby become more likely to play an equilibrium action or to discover and choose a symmetric alternative. Furthermore, as indicated by the type distributions stated in table 1.7, belief elicitation does not affect less sophisticated subjects stronger than rather sophisticates subjects. While the share of NE types increases this increase is not driven by subjects with a low level of sophistication.
1.3.4 Descriptive statistics of stated beliefs
While subjects state their beliefs in both treatments, before beliefs can be compared a first test concerns the question, whether subjects really state their true beliefs. The major concern is that the quadratic scoring rule is only incentive compatible for risk-neutral subjects. Riskaverse subjects might state beliefs that are biased towards a uniform distribution to secure themselves a sure payoff for the elicitation. Subjects who state a uniform belief over all feasible actions of their opponent either do not have any clue what the other player is going to do, think the other player evenly randomizes over all available actions or use a uniform belief statement to receive a sure payoff. Figure 1.2 shows how often a subject stated nonuniform beliefs. Uniform beliefs are defined as stating no single belief above 51% if the other player has two actions to choose from or not stating a single belief above 34% if the other player has three actions to choose from. Figure 1.2 demonstrates that subjects usually state non-uniform beliefs. I consider this observation as evidence that the problem of subjects stating uniform beliefs in order to generate a sure payoff is relatively limited. 25 Most uniform belief statements should be from subjects who are simply unsure about the likely action of their opponent. 26
Beliefs are generally continuous and the elicitation allowed for beliefs to be stated on
25 Two subjects stated uniform beliefs in 17 or more games. These two subjects only needed 53 and 173 seconds to state all of their beliefs. The mean for the other 58 subjects was 482 seconds, with a minimum of 198 seconds. I consider it likely that these subjects did state uniform beliefs to secure themselves a sure payoff from the elicitation.
26 Just to demonstrate the distribution of individual beliefs, figure A.1 in the appendix shows the number of stated beliefs for a single action that are higher than 70 percent. Pooling the data of both treatments, since the distributions appear to be very similar, yields an average of about seven games with a stated belief of 70% or more for a single action per subject.
a 0.1%-point gird. However, no subject stated a belief that is not on the 1%-grid and many statements are on the 10% grid. To ease a systematic analysis of the stated beliefs I categorize all belief statements. If a subject stated a belief for a game in which the opponent has three actions to choose from I classify his or her belief into one of four possible categories. Category one contains all beliefs statements with at least a weight of 50% on the first action. In the second category are all beliefs of 50% or more on the second action and similarly the third category contains all beliefs with a weight of at least 50% on the third action. If an individual stated beliefs that do not place a weight of at least 50% on an action his or her beliefs are categorized in the fourth category. For games in which the opponent has two actions the cutoff is changed to 70% and there are three instead of four categories.
I first test for each game whether stated beliefs are different from randomly chosen beliefs by performing χ 2 goodness of fit tests for both treatments separately. This test examines whether the frequency of the belief categories differs from a uniform distribution over the four (three) categories. These tests reject random beliefs for 19 games in both treatments. Only for game #2, in both treatments, the stated beliefs are indistinguishable from random guesses. Comparing the categorized beliefs separately for each treatment, game and player role with a FEPT (5% significance level) yields only two rejections of equivalence in 40 comparisons. 27 These results let me confidently conclude that the stated beliefs are not the result of random answers and that belief statements do not differ with respect to player roles. In the following analysis I therefore consider the stated beliefs as subjects' true beliefs and pool the stated beliefs over player roles.
Subjects' beliefs in the baseline treatment could be systematically different from those stated in the belief treatment if some (very sophisticated) subjects expect other subjects to select different actions if they are asked to state beliefs compared to the case when they are not asked. In part two of the baseline treatment they should state own beliefs that are as close as possible to the choice distribution in part one. Therefore these subjects might state beliefs that do not resemble the pattern of action choices they would expect if the other subjects would be asked to state actions and beliefs simultaneously, as in the belief treatment. While I consider this highly unlikely, a difference in the stated beliefs between the treatments could indicate such a behavior.
A difference in the belief statements between treatments could also be the result of subjects in the baseline treatment using their belief statements as rationalizations for their own behavior in part one. Then these subjects would not really state what they expect the other player to do, but rather state beliefs that make their previous action choice a best response. Since action choices are significantly different between treatments for some subgroups of games the beliefs in the baseline treatment should differ from the ones stated in the belief treatment if subjects try to rationalize their previous choices.
27 For games 8 and 14 in the belief treatment the stated beliefs are not significantly different from random beliefs.
Result 5. There is no difference in the stated beliefs between the two treatments.
Pooling the data across player roles within each treatment and conducting FEPT separately on each game yields no significant difference between the treatments for any game (p-values > 0.05). These observations mitigate concerns that subjects respond differently to the question about their beliefs in the two treatments. Subjects seem to provide beliefs that correspond to their expectations about the other players' behavior. Whatever drives the effect described in section 1.3.2 above, it appears to be triggered by the explicit belief elicitation.
1.3.5 Relationship between actions and stated beliefs
The previous section revealed the equivalence of the stated beliefs in both treatments. In this section the assumption that play is belief based is tested by analyzing whether the chosen actions are best responses to the stated beliefs. For this test I assume that subjects are maximizing their expected payoff. This assumption implies that subjects only care about their own monetary payoff and it excludes any other motives for play like social preferences. Social preferences are important in many settings, and I take some social motives into account when analyzing the role of game properties in section 1.3.2 (symmetric alternative) and in the classification of subjects (efficiency type), but for the calculation of best responses all subjects are assumed to be only self-interested.
Calculating the percentage of best responses over both treatments for all subjects yields a best response rate of 55.3%. This percentage is in line with the results of Costa-Gomes and Weizsäcker (2008) who report best response rates around 50% and it is slightly lower than the results of Rey-Biel (2009). He finds best response rates around 67%, but given that his games are arguably easier than the ones used in my experiment the difference is expected. 28
If belief elicitation leads to the formation of beliefs or to harder thinking, it is less likely that action in the baseline treatment are best responses. When "thinking harder" is triggered by the explicit elicitation of beliefs and this process leads to refined beliefs, then a likely consequence is that subjects place more weight on their beliefs when the action choice is made. Consequently the probability of playing best response should increase. Given that the beliefs in the baseline treatment are not stated until all action choices are made and that the probability of NE play increases in the belief treatment, a difference in the number of best responses could arise. To test for such an effect I calculate the number of best responses per subject separate for both treatments. The histogram in figure 1.3 indicates a difference between the treatments.
On average subjects in the baseline treatment best respond to their own stated beliefs
28 I consider his games easier, since he has a higher share of dominance-solvable games (8 of his 10 games and 13 of the 20 used games in my experiment are dominance-solvable) and half of the subjects only play constant-sum games. Additionally constant-sum games are more likely to lead to best responses, since social preferences typically do not change the predictions in those games.
9.9 times, while subjects in the belief treatment do so 12.2 times (out of 20 possible). This difference in means is significant (MWU, p-value < 0.01). The shift of the best response distribution seems to affect all subjects in the same way, which is consistent with an identical influence of the effect on subjects with a low and subjects with a high number of equilibrium action choices.
Result 6. Chosen actions in the belief treatment are significantly more often best responses to stated beliefs.
The cumulative distribution function of the number of best responses in the belief treatment actually first order stochastically dominances the one of the baseline treatment. This finding relates to the similar distributions of types in both treatments from above and suggests a homogeneous effect on subjects independent of subjects' strategic sophistication. Result 6 is also consistent with subjects "thinking harder" about the game, when they are asked to state their beliefs. Thinking about the likely action of their opponent increases the probability that they realize an aspect of the game that they missed when they made their action choice, e.g. an own dominated action. When they then state their beliefs, they state the beliefs they have after thinking about the game again. By stating these modified beliefs subjects act in the expectation that their opponents have been more sophisticated than themselves in the action choice. Such a behavior could explain why there is a small treatment difference in the chosen actions and a difference in the number action choices being best responses to own stated beliefs between the treatments, despite the fact that belief statements are not different between treatments.
Of course it is also possible that the elicitation increases the relevance subjects attribute to their beliefs when picking their action. If that is the case, then the beliefs are unchanged by the elicitation and the different action choices are the result of subjects taking their beliefs more into account when beliefs are elicited. Such an effect would be closer to an experimenter demand effect by shifting the focus of subjects. Part of the differences in best responses between the treatments is also likely to be driven by the fact that subjects in the baseline treatment are not reminded about their previous action choice in the game when they state beliefs. This procedure prevents unwanted ex-post rationalizations by subjects in the baseline treatment, but for subjects who falsely remember choosing another action or subjects who were unsure which action to choose the procedure likely results in fewer best responses compared to a simultaneous elicitation of actions and beliefs. While the procedure is likely to increase the difference in best responses, I believe that the clear difference between the treatments is unlikely to be caused by it.
1.4 Discussion and conclusion
The results of this paper show that belief elicitation can have a significant effect on the chosen actions of individuals. The overall effects are rather weak and concentrated on specific subgroups of games. These findings are good news for experimentalists that elicit beliefs, but usually do not want that the elicitation affects subjects' choices. But the data also shows that asking for the beliefs of subjects together with their action choice increases equilibrium play in dominance-solvable games and reduces it for games with a symmetric alternative. These results demonstrate that game properties play an important role for the presence and the size of the effect. A possible channel for this finding is that subjects understand the decision situation better when they state beliefs.
A better understanding of the game means that a subject becomes aware of an aspect of the game that he or she did not realize without stating beliefs. Depending on the game increased understanding results in choices closer to the game theoretic predictions, in dominance-solvable games, or in less equilibrium play if a symmetric alternative to the equilibrium exists. These results support the so-called "thinking-harder" hypothesis, which claims that belief elicitation raises awareness of subjects for the situation or has subjects increase their effort to understand the game. While the experiment is not able to definitely distinguish between the "thinking-harder" hypothesis and the claim that belief elicitation leads to the formation of beliefs, some support for the hypothesis that the reported difference in actions for dominance-solvable games is not driven by subjects whose play is not belief based without the elicitation of beliefs comes from the analysis of the stated beliefs.
Analyzing the belief statements shows that beliefs are not different between treatments, but there is a clear difference in the number of best responses to own beliefs. The fact that in the belief treatment subjects respond more frequently optimally to their stated beliefs is not surprising and fits the story of "thinking harder". Investing more effort in understanding the game and especially the likely behavior of the opponent leads to more best responses. The setup of the experiment guides subjects to revise their beliefs in part two of the baseline treatment. Since they cannot change their action choices (made in part one), the chosen actions are less often best responses to the stated beliefs compared to the belief treatment. However, I believe that the difference in best responses found in this experiment is more likely close to an upper bound of the effect. Since subjects in the baseline treatment are not explicitly reminded of their previous action choice in the given game some part of the reduced number of best responses in the baseline treatment might be driven by subjects who simply do not remember their action choice(s).
Without specifying a complete model of game complexity, it seems as if belief elicitation is likely to have an effect in games that are "easy", meaning in games that are dominancesolvable and symmetric. The fact that the treatment effect can only be found in the subgroup of dominance-solvable and in the opposite direction for games with a symmetric alternative, hints that there is an effect of belief elicitation, but that it is too small to show up in more complicated games. The "harder thinking" subject therefore seems to be less of a "more strategic" thinking subject, but rather a subject who spends more effort in understanding the actual game. "Thinking harder" takes place on a lower level than expected and therefore does not always lead subjects to behave "more like a game theorist". This interpretation of the "thinking-harder" hypothesis is also supported by the finding that belief elicitation seems to affect subjects with different levels of strategic sophistication equally.
Given the mixed results other researchers report on the effect of belief elicitation, the "complexity" of the games might be a logical explanation. Assuming the "thinking-harder" hypothesis is true, it is very likely that belief elicitation does not play a major role in very easy games (subjects understand the game anyhow) nor in very complicated games (in which the effect is not strong enough). The fact that the treatment effect was significant for dominancesolvable games clearly points into this direction. In additional studies it would be interesting to test whether further game properties, besides dominance solvability and symmetric alternatives, also play a role and if the effect can be extended to other situations besides normal-form games. Also the question how to define game complexity and how it relates to the effect of belief elicitation is worth being investigated further.
Appendix Chapter 1
A.1 Appendix
A.1.1 Classification
In the table below subjects are classified based on their decisions in all 20 games. For details on the classification and an interpretation of the results see section 1.3.3.
Table A.1: Percentage of subjects classified by model predictions
| Model | Clear cases Baseline Belief | | Ties Baseline Belief | | |
|---|---|---|---|---|---|
| NE L1 L2 L3 D1 D2 Ef Maxmin not identified | 10.00 16.67 15.00 0.00 5.00 0.00 13.33 16.67 23.33 | 9.68 19.35 11.29 0.00 8.06 3.23 3.23 20.97 24.19 | 2.50 5.00 3.33 0.00 1.67 0.83 2.50 2.50 5.00 | 1.61 0.81 3.23 0.00 0.81 0.00 0.00 3.23 14.51 | 12.50 21.67 18.33 0.00 6.67 0.83 15.83 19.17 5.00 |
A.1.2 OLS and logit regression
This section contains additional estimation results for the analysis of section 1.3.3 on the influence of different game properties on the likelihood of equilibrium play.
Table A.2: OLS and logit estimation of NE
Notes: Logit estimates: Marginal effects (evaluated at the mean of independent variables); * p < 0.10, ** p < 0.05, *** p < 0.01. All standard errors are clustered at the subject level.
A.1.3 Non-uniform beliefs
The histogram shows the number of individual belief statements above 70% per subject. It illustrates that most subjects state beliefs that are far away from a uniform distribution.
A.1.4 Instructions
Below are the English translations of the original German instructions for the belief treatment (available upon request). The instructions for the baseline treatment are almost identical, but split in two parts (games and belief statements). The emphases are also in the original instructions. The first part (WELCOME) was given to the participants at the start, while the second part (Detailed instructions) was handed out right before the start of the actual experiment.
WELCOME!
Thank you for participating in this experiment. The amount of money you earn depends on your choices and the choices of the other participants. The entire experiment will last about 90 minutes and you receive your payment directly after the experiment in cash.
It is very important that you remain silent and do not talk to other participants during the entire experiment. In case you have any questions regarding the procedures of the experiment, please raise your hand. An experimenter will come to you to clarify the question directly with you. Thank you for your cooperation.
During the experiment you will be matched with other participants. The other participant will always be called "person B". In each round you will be matched with a new person. This means you will never be matched with the same person in two successive rounds. Neither during nor after the experiment you will learn with whom who you were matched in a round. You and person B will simultaneously see a decision situation. Your decision and the decision of person B together yield the result. This result determines how many points you and person B receive and therefore your payoff.
We now provide you with a detailed description of the decision situation. If you have any remaining questions after reading the instructions, please raise your hand. We will come to your seat and answer any open questions.
Detailed instructions for the decision situation
In this experiment we show you multiple decision situations. An example for such a decision situation can be seen in the table below. Please take a good look at the table and read the instructions below.
| 40 10 | 40 40 | 10 10 |
|---|---|---|
| 50 20 | 40 40 | 0 20 |
| 20 30 | 20 50 | 40 10 |
In the actual decisions you will see a similar table on your computer screen (but with different numbers and possibly less cells). You are asked to make a decision, which means that you choose between the given alternatives (here: &, % and =). Person B decides simultaneously between their alternatives (here: §, # and +). You always choose between rows, while person B always chooses between columns of the table. The cell that results from these decisions states the points you and person B receive. Your potential payoffs are given in the bottom left of a cell, while the potential payoffs for person B are given in the upper right of each cell. Consider for example the following possibilities:
* You choose & and person B selects §, you receive 10 and person B receives 40 points.
* You choose % and person B selects §, you receive 20 and person B receives 50 points.
* You choose = and person B selects #, you receive 50 and person B receives 20 points.
You encounter multiple of those decision situations in the experiment. At the end of the experiment three decisions are randomly chosen and you receive the sum of points, which you earned in the three selected decisions. All earned points for these three decisions add up to your point total. At the end of the experiment you receive 5 cents for each point. This means 20 points are equivalent to 1e.
Furthermore we ask you about your expectation, which alternative person B will choose. This means for each table we ask you to think about the likely behavior of person B. You can interpret the question as follows: If 100 persons would make this decision, how often would each of the given alternatives be chosen?
Of course only one person will actually make the decision and not 100 different persons. But you can interpret the question about the behavior as how likely it is that a person B chooses each of the possible alternatives (here: §, # and +).
For example, if you are certain that person B will select alternative § in a decision situation and never alternatives # or +, then you would answer the question by filling in the numbers 100, 0 and 0 in the fields of the respective alternatives §, # and +.
If you instead believe that person B will not choose alternative § very often, but alternative # more often and action + most frequently, then you could fill in the numbers 20, 30 and 50 for the respective alternatives. If you assume that all alternatives are equally likely to be chosen
you can enter the numbers 33, 34 and 33 for the respective fields.
Please note: The sum of all expectations has to sum up to 100.
Your payment depends on your chosen alternative, the chosen alternative of person B and which expectations you have stated about the behavior of person B.
At the end of the experiment three additional decision situations are randomly selected. You receive the sum of points you have earned for your expectations in these three situations. All points you earn in these decision situations are added to your point total.
For each decision situation only the result OR your expectations are paid. This means you are paid for six decision situations. In three decisions you are paid the result and in three different decisions for your expectations. You never receive points for both tasks for the same decision.
How many points you receive four your expectations depends on how correct your expectations are and therefore on the decision of person B. You receive more points if the difference between your expectations and the actual decision of person B is small. The table below shows you for the examples given above which payoff you might receive.
The first table lists four examples for stated expectations about the behavior of person B. For example in row 1 the following expectations are listed: You believe that person B will choose alternative § and not alternatives # or +.
Person B: § Person B: # Person B: +
| 100 | 0 | 0 |
|---|---|---|
| 20 | 30 | 50 |
| 33 | 34 | 33 |
The next table states the possible payments for your stated expectations dependent on whether person B chooses alternative §, # or +. The first column lists your payoff if person B chooses alternative §, the second column lists your payoff if person B chooses alternative # and the third column lists you payoff if person B chooses alternative +.
Person B: § Person B: # Person B: +
| 80 | 0 |
|---|---|
| 41 | 49 |
| 53 | 54 |
| 77 | 29 |
If you state expectations as given in row 1 and person B chooses alternative §, than you receive 80 points. If person B selects a different action, # or +, then you receive 0 points.
If you state expectations as given in row 3 and person B chooses alternative §, than you receive 53 points. If person B chooses alternative # you receive 54 points and if person B chooses alternative + you receive 53 points.
The table states for all four examples from above all possible payments depending on the decision of person B. Each point is worth 5 cents, independently if you receive it for your decision or your expectation. You can receive at most 80 points and you receive at least 0 points for an expectation. In the example this means when person B selects alternative § and you are paid for your expectation you receive 80 points (= 4 Euro) in the first example, 41 points (= 2.1 Euro) in the second and 53 points (= 2.7 Euros) in the third example. Your expected payment is maximized if you state your true expectations.
Please note: The numbers state above are only examples. These examples do NOT provide any suggestions for the decision situations.
Please make sure that you understood the table and that you know how you receive points for your stated expectations. Raise your hand if you have any questions. If you think that you understood these instructions and you know how you are paid in the decision situations, please click with the mouse on the OK button. We will then ask you some understanding questions to a different decision situation. After you have answered these questions correctly you can start with the experiment.
Profitability of Tournaments with Worker Sorting: An Experiment 1
2.1 Introduction
Offering a contract to potential employees serves two main purposes for employers. First, the incentive scheme included in the contract should attract the right workers. Second, once a worker has agreed to a contract, the incentive scheme should align the interests of the employer and the employee. In labor market relationships aligning the interests of employers and employees generally means incentivizing workers to produce a large output. Several papers have documented the importance of worker sorting for the observed output differences between payment schemes (Lazear 2000; Dohmen and Falk 2011; Leuven et al. 2011). However, there exists little evidence on the effect of worker sorting on the profitability of payment schemes for employers. Especially not much is known about the effect of worker sorting on profits when workers can choose between multiple variable-payment schemes.
In this paper I analyze the profitability of a rank-order tournament for employers when self-selection of workers in different payment schemes is possible in a laboratory experiment. The following questions are addressed: Can a rank-order tournament be more profitable than a piece rate? In particular I analyze the role of tournament prizes and the possibility of worker sorting for the profit of employers. Furthermore, how does the sorting decision of workers depend on their personal characteristics, such as risk aversion, productivity, gender or self-assessment of their productivity?
The real-effort experiment contrasts two different environments. In the first part, the
1 I appreciate the comments and the advice received from Dirk Engelmann, Henrik Orzen, Stefan Penczynski and Gerhard Riener. I thank participants of the Verein für Socialpolitik meeting 2015 (Münster), the London Experimental Workshop 2015 (London), the European meeting of ESA 2014 (Prague), the IMEBESS meeting 2015 (Toulouse) and GAMES 2016 (Maastricht), as well as seminar participants in Mannheim and Nuremberg for many helpful comments. A predecessor of this paper was circulated under the title "Performance Pay, Sorting and Employers' Choice: Are Tournaments an Attractive Payment Scheme?". All remaining errors are my own.
no-competition stage, employers - called managers - do not compete for workers. They are randomly assigned two workers and choose how these workers are paid by selecting one of the three available payment schemes: fixed wage, piece rate or rank-order tournament. Workers cannot influence which payment scheme they receive. Consequently, in the nocompetition stage only the incentive effect of a payment scheme and its costs are relevant for its profitability. In the second part, the competition stage, three managers compete for six workers. Managers and workers state their preference ordering over all three payment schemes. The stated preferences of managers are used to assign each manager a payment scheme with the restriction that each payment scheme has to be offered. This restriction ensures that workers have the choice between all three payment schemes. Workers' preferences are then considered to sort two workers to a manager and therefore to a payment scheme. The matching procedure of workers to payment schemes gives priority to more productive workers to resemble advantages of these workers in the job search. As a result, the competition stage allows for workers' self-selection and thereby introduces competition among employers for productive workers. In the competition stage the profitability of a payment scheme depends on the incentives it provides to workers, its costs and on workers' sorting behavior.
The theoretical literature (Lazear and Rosen 1981; Green and Stokey 1983; Nalebuff and Stiglitz 1983) as well as experimental studies (Bull et al. 1987; Bartling et al. 2009; Eriksson et al. 2009; Balafoutas et al. 2012) have demonstrated that rank-order tournaments provide incentives for workers to exert effort. Therefore tournaments should be a profitable payment scheme for employers. However, in practice tournaments as payment schemes are uncommon. While they are used in the form of promotion tournaments and to award bonuses, they are rarely used as main payment scheme for employees. A main feature of rank-order tournaments is the dependence of workers' payments on their rank and not directly on their output. Therefore if prizes are independent of workers' output, tournament costs do not relate to workers' performance. On the one hand this independence can increase employers' profits, if the tournament results in large worker output while being relatively cheap. In such a case an employer might generate larger profits with a tournament than with output-based payment schemes, like a piece rate. But on the other hand such a tournament might be unattractive for (productive) workers, since the tournament will usually be cheap if prizes are low and therefore provide low expected earnings for workers. Additionally tournaments create uncertainty for workers about their wage, since their payment is neither a priori given nor fully determined by their own output. This wage uncertainty could make even tournaments with relatively large expected wages unattractive for risk-averse workers. Consequently when worker sorting is feasible it is unclear how profitable such a tournament is for the employer. My experiment addresses this issue. The comparison of the profitability of the tournaments in the no competition and the competition stage allows me to explicitly analyze the role of worker sorting.
Productivity differences have been shown to be important for worker sorting and therefore for performance differences between payment schemes. Lazear (2000) documents in his field experiment that the self-selection into a piece rate accounts for a large share of the observed performance increase compared to a fixed wage payment. Leuven et al. (2011) demonstrate in a field setting with different tournaments that an observed increase in performance, attributed to an incentive effect of larger tournament prizes, can mainly be explained by the sorting of subjects. To be able to account for workers' individual productivity in the sorting decision in the experiment first subjects' productivity in the real-effort task is measured. Dohmen and Falk (2011) show that for the sorting between a fixed wage and a variable wage alternative (either a piece rate, a tournament or a rent-sharing contract) not only workers' productivity matters. Variable-payment schemes additionally attract individuals with certain characteristics, such as higher willingness to take risks. Therefore in my experiment also workers' relative ranking beliefs and their risk preferences are elicited and I collect additional individual characteristics that might be relevant for the sorting behavior.
While many studies show the relevance of worker sorting for output differences workers usually do not choose between variable-payment schemes, but either between a fixed wage and a variable-payment scheme (Lazear 2000; Dohmen and Falk 2011) or between different tournaments (Leuven et al. 2011). Therefore my study differs from these as well as most other papers on worker sorting, since I explore the sorting behavior of subjects between multiple variable-payment schemes. Bartling et al. (2009), Eriksson et al. (2009), and Balafoutas et al. (2012) are concerned with the endogenous choice of subjects between a tournament and a piece rate. They demonstrate that productivity sorting is the main driver for subjects' decisions. But these studies do not address the effect of the sorting for the profitability of the different payment schemes. Also in these and in most other papers regarding worker sorting, all subjects are workers and their payment scheme choices are independent of other subjects' choices. Therefore there does not exist a competition for (productive) workers. In my experiment the number of workers in each payment scheme is limited. This design creates competition among employers for the most productive workers and allows to study the effect of worker sorting on the profitability of payment schemes in a competitive environment.
Furthermore, the absence of employers who benefit from the performance of workers might limit the effect of social preferences, especially in fixed-wage contracts. In particular in small firms with only a few employees social preferences might be an important factor for the performance of workers and consequently for the profitability of different payment schemes. That social preference affect the optimal incentive contract is shown by a large (experimental) literature that analyzes the effects of different fixed-wage offers on workers' performance. Fehr et al. (1993) were the first to demonstrate experimentally that large wage "gifts" of employers, in the form of unconditional offers, are indeed on average rewarded with higher effort choices by workers. 2 Therefore it pays for employers in these "gift-exchange" experiments to offer above minimum wages. 3 In my study social preferences might affect the profitability of the payment schemes also in an additional way. In the gift-exchange game employers do not select a contract type, instead they choose the fixed wage. Therefore employers control a parameter of the contract, the wage, but do not select the contract itself. 4 Having managers choose the payment schemes instead of exogenously assigning them in the no-competition stage allows for social preferences of workers to affect their performance. It is possible that the employers' choice of a specific payment scheme has an effect on the effort provision of workers, similar to the role of reciprocity in setting a profit-maximizing fixed wage. In the competition stage however, the employer might have to offer a payment scheme that is not her most favored payment scheme. By comparing workers' performance in the same payment scheme between these stages I can check whether this difference matters for their performance or not.
The results obtained illustrate the importance of worker sorting for the profitability of payment schemes. The tournament payment scheme provides incentives to workers. Their performances in both tournaments and the piece rate are high and do not significantly differ between these variable-payment schemes. Therefore in the no-competition stage - without worker sorting - a low-prize tournament results in larger manager profits than a piece rate due to the low tournament costs for employers. But a high-prize tournament yields the same manager profits as the piece rate. However, for productive workers a tournament is only an attractive payment scheme with sufficiently large prizes. As a consequence, in the competition stage the cost advantage of the low-prize tournament cannot outweigh that for productive workers this tournament is not attractive. Due to workers' self-sorting behavior the low-prize tournament does not yield larger manager profits than the piece rate. While the high-prize tournament is attractive for productive workers, the potential advantage from worker sorting is off-set by the high costs and as a result also a high-prize tournament does not result in larger manager profits than a piece rate in the competition stage. These findings illustrate that with worker sorting rank-order tournaments are hardly simultaneously attractive for workers and employers.
The paper is organized as follows. The next section describes the experiment, treatments and outlines the hypotheses. Section 2.3 presents the results. I first discuss managers' payment-scheme choices, then workers' performances and then compare the resulting prof-
2 The idea was described theoretically before by Akerlof (1982) and Akerlof and Yellen (1990).
4 Similarly in the modified gift-exchange game of Falk and Kosfeld (2006) employers can restrict the minimum effort level of workers from below. In their setting employers clearly choose what to offer, but the choice is between different parameterizations of the same contract type. In Anderhub et al. (2002), a test of the principal agent model, subjects choose between different parameterizations of the same contract type, but not between different contracts. Lindner et al. (2013) experimentally investigate employers' and employees' choices between two equivalent tournaments. However, there is no choice between different payment schemes.
3 This finding has been replicated in many different environments in the lab and in the field. As a starting point see Fehr et al. (1997, 1998), Fehr and Falk (1999), and Gneezy and List (2006).
its before analyzing the sorting of workers. Lastly the fixed-wage contracts are analyzed. Section 2.4 discusses the implications of the results and concludes.
2.2 Experimental design
To address the outlined questions individual characteristics of subjects, such as productivity and risk preferences are needed. Especially data on productivity and preferences about payment schemes are typically not elicited in labor markets and personal characteristics, like risk preferences, are hard to measure. To collect this information and to exogenously change incentive structures without any disturbances, I conduct a laboratory study. While the laboratory provides an ideal environment to control possible outside influences, not all aspects of labor markets can be modeled. However, I believe that experiments provide a valuable tool in the study of incentives, self-selection and especially sorting, since sorting and incentive effects can be disentangled.
2.2.1 The real-effort task
The real-effort task subjects perform is to count ones in a ninety digits table of zeros and ones - see figure 2.1. 5 The probability of a one is randomly determined (between 0.3 and 0.7) and constant within a table, but varies between tables. The randomization prevents subjects from guessing the answer.
The task is easy to understand, but for most subjects it should not be enjoyable. It therefore resembles features of typical work tasks, which can be solved by workers, but are not enjoyable in itself. Furthermore, the number of solved tables is a natural productivity measure. The obtained data documents some heterogeneity in workers' productivity, which is a prerequisite for productivity sorting.
5 A similar task is used by Abeler et al. (2011).
2.2.2 Structure of the experiment
The experiment consists of 10 steps, which are shown in table 2.1. 6 The productivity of subjects and their effort and rank beliefs are elicited in steps 1 to 4. For these steps all subjects are in the role of workers. Starting with step 5, the no-competition stage, subjects are randomly selected to be managers - one third - or workers - two thirds. All subjects remain in their roles from step 5 onwards. While in the no-competition stage managers choose a payment scheme, workers have no influence which payment scheme they receive. In step 7, the competition stage, the sorting decision of workers takes place. Workers state their preferences over the three available payment schemes and these preferences are used to sort workers into the different payment schemes. Steps 6 and 8-10 are additional questionnaires in which subjects' effort and rank beliefs as well as their risk preferences are elicited.
Table 2.1: Design of the experiment
| Step 1 | Step 2 | Step 3 | Step 4 | Step 5 | Step 6 | Step 7 |
|---|---|---|---|---|---|---|
| solve one table (unpaid) | solve one table (paid) | solve tables for 5 min (piece rate) | elicit effort & rank beliefs I | managers select payment scheme: (a) fixed wage (b) piece rate (c) tournament working time 10 minutes | elicit effort & rank beliefs II | workers’ sorting decisions: (a) fixed wage (b) piece rate (c) tournament working time 10 minutes |
Subjects are informed about the approximate duration of the experiment and existence of multiple steps, but only receive detailed on screen instructions in the beginning of each step. 7 Each session consists of 18 subjects, divided into two groups of nine. From step 5 onwards three subjects in each group become managers, while the remaining six subjects become workers.
Measuring subjects' productivity: steps 1 - 3
To learn the task subjects solve one table without incentives in step 1. In step 2 they solve a second table with payment. From a budget of 150 points two points are subtracted for
6 Table B.1 in the appendix provides more details regarding the 10 steps.
7 The appendix includes a translation of the instructions (see section B.2).
each second until the correct answer is given. For a wrong answer 20 points are subtracted and subjects can enter a new answer, but they cannot make losses. In step 2 all tables have a probability of 40% for a one in each digit. The time needed to solve the first and second table are productivity indicators I and II respectively. The main measure of productivity used in the following analysis comes from step 3. Subjects are asked to solve as many tables as possible within 5 minutes and are paid with a piece rate (8 points per correct answer and a penalty of 5 points for wrong answers). Productivity indicator III is the number of correctly solved tables.
Questionnaires and belief elicitation: steps 4, 6 and 8-10
I elicit subjects' beliefs and their subjective impressions about their stress level at several points during the experiment. Once after the productivity measurements - step 4 - and again after the no competition - step 6 - and the competition stage - step 8. To elicit their beliefs about their relative performance I ask subjects "How many of the other workers solved fewer tables then you?" (in a group of nine/six) and I ask managers "How many tables did your workers solve in this stage?". Workers' beliefs are rewarded if they predict their rank correctly, +/- 1. Managers receive a payment if they correctly estimate the number of solved tables, +/- 3 tables.
In steps 4, 6 and 8 I collect data on subjects' impressions "How hard did you work in the just completed stage?", "How difficult was the task?" and "How stressed did you feel?" on seven point Likert scales (No stress at all - Very stressful). In step 9 I measure subjects' risk preferences using a Holt and Laury (2002) lottery choice. In step 10 subjects state how fair they perceive the different payment schemes and fill in some demographic and employment information. All questionnaires are conducted before subjects receive feedback on their payments for the respective step. Payments for the belief elicitation are revealed at the end of the experiment.
No competition and competition stage: steps 5 and 7
In the no-competition stage (step 5) managers select their preferred payment scheme and thereby determine how the two workers in their firm are paid. While managers choose one of the three available payment schemes, workers are aware of the different payment schemes, but cannot influence to which manager and therefore payment scheme they are assigned. The three possible payment schemes are a tournament, a piece rate and a fixed wage.
In the tournament subject i competes with the other worker in the firm. Whoever solves more tables wins the tournament and receives prize T w , while the other worker receives the lower prize T l . Both workers receive a payoff to limit the downside risk for workers, a feature which is realistically present in labor markets. Prizes are independent of output and the only determinant for the tournament winner is the comparison between the two workers.
Ties are broken randomly. With xi being the number of tables solved by a worker his income in a tournament is given by
Prizes vary by treatment: In the high-prize treatment the winner prize is T w = 450 points and the loser receives T l = 50 points. In the low-prize treatment these prizes reduce to T w = 400 and T l = 25 points. The 50 point difference between the winner prizes might not appear large, but it is substantial. For workers the potential winning prize is 12.5% larger in the high-prize treatment. Furthermore, for a worker these 50 points correspond to more than six additional solved tables with the piece rate (8 points per table). Given a mean of 29 tables solved with a piece rate in the no-competition stage, a difference of six tables is not small. In both treatments the winner prize is large, while the loser prize is relatively small. This design feature has two advantages: First, the high winner's prize incentivizes workers in a tournament to perform well, since there is a large prize to win. Second, the low loser prize limits the costs of the tournament.
In the piece rate a worker receives 8 points for a solved table, therefore his wage is given by:
A manager that selects a fixed wage also sets the wage w F i . The boundaries for the fixed wage are the tournament prizes. Therefore the fixed wage can be between 50 and 450 points in the high-prize treatment and between 25 and 400 points in the low-prize treatment. 8 A worker i receives this wage even if he does not solve a table. Both workers in a firm receive the same wage. The income of a worker with a fixed wage is
In all payment schemes workers' wages are paid out of managers' earnings. A manager earns
8 Managers typically stayed away from these boundaries, e.g. the upper limit was never chosen. Therefore the differences in the bounds between treatments should not have a large effect.
Each table her workers complete yields a manager 14 points, independently of the payment scheme. Managers can also solve tables to earn additional money, but their income mainly depends on their workers' performance. 9 A manager receives W depending on her own performance xM:
To ensure that participants do not work on the task out of boredom, they could answer trivia questions instead. Subjects could go back and forth between the task and the quiz. All participants are first informed about the payment schemes and the quiz. Then a random draw determines their role - worker or manager. Finally managers choose a payment scheme and in case of a fixed payment select the fixed wage. 10 Workers are informed about their payment scheme and then the 10 minute working time starts.
This no-competition stage yields managers' preferences for payments schemes without worker self-selection. But this stage does not deliver any information about workers' preferences. These preferences are elicited in the competition stage (step 7). In this stage worker sorting is feasible. At the beginning of the stage three managers and six workers are grouped together - subjects keep their respective roles. Managers first enter the fixed wage they would pay in case of a fixed-wage contract and then state their preference ordering of the three payment schemes. This procedure ensures that each manager could rank the payment schemes using the fixed wage she would like to pay. All subjects are informed that in a group each payment scheme has to be offered by exactly one manager.
The payment scheme a manager offers is determined with the following procedure: First, managers' first choices are considered. If a payment scheme is ranked first by only one manager, she receives this payment scheme. If two or more managers rank the same payment scheme first the tie is broken randomly. Next, the second choices of managers who did not receive their first choice are considered. Again any ties are broken randomly, such that if multiple managers made identical first and second choices one receives her third choice. This procedure ensures that managers had an incentive to state their preferred ordering over all three contracts.
While the procedure incentivizes managers to rank their preferred payment schemes higher, it can be optimal not to rank the most preferred payment scheme first. If a manager
9 The option for managers to solve tables makes it harder for subjects in the lab to identify managers. It also provides some insurance against losses for managers.
10 Managers are not allowed to choose the level of the piece rate or tournament prizes, to ensure a better comparability between groups and sessions as well as between treatments. Not being able to select the piece rate should make the piece rate less attractive for managers.
believes a particular payment scheme, e.g. the piece rate, to be popular among all managers and if she wants to avoid another payment scheme, assume the fixed wage, then it could be optimal to rank the tournament first and the piece rate second, to avoid the fixed wage.
However stating such a ranking is only preferred to revealing the true preferences under several conditions: First, a manager needs a smaller "preference difference" between her first and second option than between her second and third option. Second, she needs to believe that the other managers have the same preference order and third she must believe that other managers would not act strategically. Only if all three conditions are fulfilled ranking the second most preferred payment scheme first makes sense. Therefore in the results section the first choices of managers are used assuming that the revealed preferences represent true preferences. 11
After managers are allocated to the contracts, the six workers in the group see the payment schemes (including the offered fixed wage) and state their preferences over these contracts. Their stated preferences are used to match exactly two workers to each manager (and therefore payment scheme). Workers are ranked within their group based on their performance in step 3 from 1st to 6th. Choices of better ranked subjects are fulfilled first, such that all workers with a rank of three or worse only get their first choice if less than two higher ranked workers select this payment scheme. Due to this procedure more productive subjects are more likely to receive their preferred payment scheme, which reflects the advantages of more productive workers in the job search. The mechanism therefore allows for productivity sorting of workers. The procedure is common knowledge and is equivalent to workers choosing their preferred payment scheme in the order of their ranking, just that choices are elicited using a strategy method. Subjects state a belief about their ranking in step 4 and therefore probably thought about their relative ranking. However, they did not receive feedback about their true ranking. 12
2.2.3 Treatments and procedures
The two main treatments only differ in the tournament prizes. In the low-prize treatment the tournament winner receives 400 points and the loser earns 25 points. Essential this is a tournament with a prize of 375 points and a sure payoff of 25 points. In the highprize treatment the prizes are 450 and 50 points respectively. Each subject faces the same tournament in the no competition and the competition stage. For a manager the cost of a
11 In case preferences were not stated truthfully, I consider assumption three (not all managers are believed to behave strategically) to be the likeliest not to be fulfilled. If the first two conditions are fulfilled the likeliest bias is that the preferred payment scheme is stated as second choice with positive probability. Given the actual choices such a bias should result in the piece rate being ranked second, even if it is the most preferred payment scheme.
12 Workers in a tournament receive some information about the other worker within the same firm by learning whether they won the tournament or not in the no-competition stage. Managers only know the total number of tables their workers solved.
tournament is the sum of prizes: 425 points in the low prize and 500 points in the high-prize treatment.
Additionally a control treatment with high tournament prizes was conducted, but the requirement that each manager has to offer a different payment scheme in the competition stage was lifted. Therefore all managers offered their preferred payment scheme. Since there are no incentives for stating any order for the not chosen payment schemes in this treatment only the first choice of managers are reported. The matching procedure for workers was identical to that of the other treatments. Since the treatment is identical to the high-prize treatment until step 6, the data from these treatments is analyzed jointly for steps 1-6. The results for the competition stage of the control treatment are not discussed or reported in this paper. Table 2.2 provides an overview over the treatments and the relevant payment scheme parameters.
Table 2.2: Treatment differences and payment scheme parameters
Notes: For the analysis of the no-competition stage the results of the high prize and the control treatment are pooled ("HIGH"). No results of the competition stage in the control treatment are reported in this paper.
The experiment was computerized (using zTree, Fischbacher (2007) and recruitment was done with ORSEE, Greiner (2015)), instructions were provided on screen and all interactions were anonymous. Any additional aids to count the ones in the table, like calculators etc., were not allowed. 13 The sessions were conducted at the mLab of the University of Mannheim (two high-prize sessions, two low-prize sessions and the three sessions of the control treatment) and in the AWI-laboratory of the University of Heidelberg (three sessions each in the low prize and high-prize treatment). Overall 234 subjects - 113 males and 121 females, mostly undergraduate students - participated. Each session consisted of 18 subjects - two groups of three managers and six workers. One point was exchanged for 1.3 Cents. On average subjects received 14.9e, including a 2e show-up fee.
13 Some subjects used their finger, the mouse courser or a pen to count. This behavior was not stopped by the experimenter.
2.2.4 Hypotheses
In order to derive some hypotheses for the behavior of subjects in the no competition and the competition stage a rough model is outlined below. Let xi be the output of a worker i, meaning the number of tables he solves during a working stage. The output is given by the production function xi = g(θi,ei)+ εi of the worker, where εi is an error term which is assumed to have a zero mean. This term captures aspects like "luck", e.g. getting an "easy" task, mood effects, etc. Workers are heterogeneous in their ability θi, which is assumed to be continuously distributed on some interval [θ, ¯ θ]. ei is the effort exerted by the worker. Furthermore, g θ (θ,e) > 0, ge(θ,e) > 0 and geθ (θ,e) ≥ 0, which means higher ability and more effort yield a larger output and the marginal product of effort increases with ability. Assume the worker has a utility function that is separable in the wage wi he receives and the effort costs c(ei): u(wi,ei) = wi − c(ei). His utility depends positively on the wage (uw > 0) and negatively on effort (ue < 0), because exerting effort is painful for the worker (ce > 0).
How many tables xi a worker solves therefore depends on the payment scheme, his ability (θi) and his exerted effort (ei). With a fixed wage ∂ w F ∂e = 0 and since c e > 0, the expected utility of a worker is maximized with the lowest possible effort level e. Independently of the paid wage w F i and their ability, all workers with a fixed wage will provide no effort and therefore not solve a table x F i = 0. 14
A worker who is paid with a piece rate receives 8 points per table. As long as the marginal benefits from providing some effort outweigh his effort costs (8ge(θi,e) > ∂ c ( e ) ∂e ) a worker will provide some effort, which means he will solve at least one table. The optimal effort level e ∗ PR for an individual worker is given by 8 g e ( θ i , e ) = ∂ c ( e ) ∂e . Given g e θ ≥ 0 it is ensured that workers with higher ability exert more effort. Without specifying g(θ,e), c(e) and a distribution of ability F(θ) no exact predictions regarding the effort levels can be derived. However, for all θ, it follows that x PR i ≥ x F i = 0.
In a tournament the optimal effort of a risk-neutral worker also depends on his belief of the expected productivity of the other worker. As a result the optimal effort is a function of his productivity, the effort costs, the tournament prize and the probability of winning the tournament (which depends on the expected productivity of the other worker in the tournament). 15 Assuming that higher effort provisions increase the probability of winning the tournament, with ∂E(w T ) ∂e > 0 it follows that x T i > 0 if ∂E(w T ) ∂e > ∂ c ( e ) ∂e . Again, for all feasible θ it follows that x T i ≥ x F i = 0.
Workers have no influence on their payment scheme in the no-competition stage, since they are randomly assigned to managers, who select the payment scheme. Given that a
14 While there is no reason to provide effort with a fixed wage (according to standard theory), the results in the gift-exchange literature show that workers might positively respond to higher fixed wages. I analyze the effects of different fixed wages on workers' performance in section 2.3.7.
15 While the optimal effort will most likely be a mixed strategy over some range of feasible efforts, since increasing his own effort (ei) increases his output (xi) and given the tie breaking rule zero effort provision is usually not an equilibrium.
worker maximizes his expected utility in a fixed-wage contract by not solving a single table for any feasible fixed wage, the manager makes negative profits with any positive wage. With a piece rate and a tournament at least workers with a sufficiently high θ should solve some tables. Since with a piece rate a manager makes a profit if at least one table is solved, a manager's expected profit from this contract should be positive. A manager should not offer a fixed-wage contract in the no-competition stage, because she can offer a piece rate, which yields a positive expected profit, instead. The same arguments are true for the competition stage. Therefore in the competition stage no manager should rank the fixed wage first.
Hypothesis 1. No manager offers / wants to offer a fixed-wage contract in any stage. If a worker receives a fixed-wage contract he provides no effort.
Workers are assumed to provide no effort with a fixed wage, but potentially provide some effort with the piece rate. Since managers make positive profits with a piece-rate contract if at least one table is solved, fixed-wage contracts should result in lower profits than a piece rate.
Hypothesis 2. Manager profits with a fixed wage are smaller than with a piece rate.
Whether a manager earns more with a tournament than with a fixed wage or the piece rate depends on the output of her workers. Assuming that managers rule out the fixed wage in the no-competition stage, since it does not result in positive profits, the question is whether a tournament or a piece rate yields a larger profit. Both contracts provide incentives for workers to exert effort, since with both payment schemes the expected payoff for a worker is larger with more solved tables. Whether a tournament is profitable for a manager also depends on the tournament costs, which differ between treatments. For the high-prize tournament workers need to solve 36 tables to ensure the manager a positive profit (tournament costs: 500 points, profit for each table: 14 points). In the low-prize treatment workers need to solve 31 tables for a zero profit of the manager. Similarly, workers have to solve more than 62 tables in the high-prize and more than 53 tables in the low-prize treatment for a manager to earn a larger profit with the tournament than with the piece rate. Using the performance of workers in the no-competition stage, I can analyze whether the cost difference in the tournaments affects the relative profitability of the tournament with respect to the piece rate.
In the competition stage workers rank all three payment schemes. Which payment scheme yields a worker a higher expected utility depends on his ability, the offered fixed wage and his belief about the productivity of the other worker in the tournament. A worker prefers the piece rate over the fixed-wage contract if his output exceeds the following threshold: ˆ x = 1 8 ( w F − c ( e )+ c ( e ∗ PR )) . With common effort cost c ( e ) workers with a higher ability θ need to provide less effort to reach this threshold. For a given wage all workers with a sufficiently high ability prefer the piece rate over the fixed wage. The threshold ˆ x increases with w F .
Whether a worker prefers a tournament over the piece rate additionally depends on his belief about the productivity of the other worker (θ j) in the tournament. A worker's expected utility from the tournament is (T w − T l ) Pr{gi(θi,e ∗ T )+ ε i > g j ( θ j , e ∗ T )+ ε j } + T l − c ( e ∗ T ) . 16
This expected utility needs to exceed the utility from the piece rate 8(g(θi,e ∗ PR )+ ε i )− c(e ∗ PR ) for a worker to choose the tournament over the piece rate. While in this framework the decision between a piece rate and the fixed-wage contract boils down to productivity sorting, the choice between the tournament and the piece rate is likely to depend on the productivity of a worker (especially if the random component ε of the output has variance close to zero), but a worker's productivity is not the only determinant for the decision. However, it is possible that the probability of winning the tournament is increasing in the own ability θi. In this case there might exists a productivity threshold which determines whether a worker prefers the piece rate or the tournament. But since the expected utility of the tournament also depends on a worker's belief about the productivity of the other worker it is not clear whether such a productivity threshold exists. 17
In the competition stage workers rank all three contracts. Because the fixed wage is only preferred over the piece rate by workers with a low productivity, workers' average productivity in the fixed wage should be lower than in the piece rate.
Hypothesis 3. In the competition stage, the average productivity of workers preferring a fixed-wage contract is lower than the productivity of those workers who rank the piece rate first.
With the outlined assumptions no prediction regarding workers' choice between the tournament and the fixed wage or the piece rate can be made. Whether the tournament is chosen by productive workers or not is therefore an open question that can be answered empirically by analyzing workers' payment scheme choices in the competition stage. I address this question as well as the role of the tournament prizes, workers' risk preferences and other individual characteristics for the choice between the payment schemes in the results section.
Managers also rank the payment schemes in the competition stage. Which payment scheme is preferred by a manager mainly depends on her belief about the expected output produced by the workers under the different payment schemes. Since in the competition stage productivity sorting of workers into the piece rate is possible and expected, I consider it likely that most managers will prefer the piece rate over the fixed wage. Whether managers prefer a tournament over the piece rate or the fixed wage and how the tournament prizes and
16 gi(⋅) and g j(⋅) denote the output of workers i and j, given the individual ability and optimal effort choices. 17 A worker chooses the tournament over the fixed wage if his expected utility of entering the tournament exceeds the utility from choosing the fixed wage w F − c(e). As for the comparison with the piece rate a worker's ability θi is likely a main determinant in this decision. However, since for the expected utility from the tournament also the expected probability of winning the tournament matters, the decision between the fixed wage and the tournament also depends on the belief of a worker about the productivity of the other worker in the tournament. Therefore there does not necessarily exist a productivity cut-off for the decision between the fixed wage and the tournament.
therefore the two treatments affect this decision is an open question I will consider in the results section.
Furthermore, this experiment addresses the question whether a tournament is more profitable in the absence of worker sorting. In the no-competition stage workers cannot avoid the payment scheme chosen by their manager. Therefore it is possible that incentives provided by a tournament result in relatively large manager profits and lead to larger manager profits than a piece-rate contract. However, whether that is the case cannot be answered definitely without further distributional assumptions. But even if a tournament yields larger manager profits than a piece rate in the no-competition stage, worker sorting in the competition stage could either reinforce or destroy the advantage of the tournament. On the one hand, the advantage of the tournament might increase with worker sorting if very productive workers prefer the tournament over the piece rate. On the other hand, the tournament profits might be lower than the profits with a piece rate, because productive workers choose the piece rate. The effect of worker sorting on the profitability of the tournament and the piece rate is one of the main research questions in this paper. It is addressed in section 2.3.3. Also whether a higher tournament prize leads to increasing profits with worker sorting can be tested by comparing manager profits with a tournament between the two treatments. In the following section I describe the results of the experiment.
2.3 Results
In section 2.3.1 I focus on the payment scheme choices of managers. Section 2.3.2 addresses the performance of workers with different payment schemes and in section 2.3.3 the profitability of the payment schemes is analyzed. Which payment schemes workers choose and how individual characteristics correlate with workers' choices is analyzed in sections 2.3.4 and 2.3.5. Section 2.3.6 highlights and shortly summarizes the main finding before section 2.3.7 examines the effect of different fixed wages on workers' performance.
2.3.1 Managers' choices
The payment scheme choices of mangers in both stages and all treatments are shown in table 2.3. In the no-competition stage of the high-prize treatment 8 managers chose a fixed-wage contract, 37 the piece rate and 3 selected the tournament. In the low-prize treatment all managers selected a variable-payment scheme: 25 choose the piece rate and 5 selected the tournament. Therefore the low-prize tournament was selected by 17%, while the high-prize tournament was chosen by 6% of managers. This difference is not significant (comparing the distributions of the variable-payment schemes in the two treatments using Fishers Exact Probability Test (FEPT), p-value = 0.28). 18 In all treatments the piece rate was the most
18 All tests in this paper are two-sided unless indicated differently.
preferred payment scheme.
Table 2.3: Managers' payment scheme choices in the no competition and competition stage
Notes: In the no-competition stage the results of the high prize and the control treatment are pooled ("HIGH"). For the competition stage the first choices of managers are shown.
The piece rate is also the most preferred payment scheme in the competition stage. As the right part of table 2.3 shows, in both treatments more than three out of four managers stated the piece rate as their first choice. 4 managers in the high prize and 5 in the lowprize treatment wanted to offer a tournament, while even fewer managers preferred the fixed wage (3 in the high prize and 1 in the low-prize treatment). These two distributions are not significantly different between the treatments (FEPT p-value = 0.80). 19 The few choices of a fixed-wage contract are in line with the first part of hypothesis 1 which states that managers prefer variable-payment schemes to the fixed wage. In general the data shows that the piece rate is the most preferred contract in both treatments and independently whether worker sorting is feasible or not. Furthermore, the tournament costs seem not to have a big influence on managers' payment scheme choices. 20
2.3.2 Workers' performances - the incentive effect
Workers random allocation to managers and therefore payment schemes in the no-competition stage allows me to analyze the incentive effect of the payment schemes. Figure 2.2 below displays the mean number of solved tables by workers for the different payment schemes. The left panel shows the averages for the no-competition stage and the right panel for the competition stage. There is no entry for the fixed wage in the no-competition stage in the low-prize treatment, since no manager selected a fixed-wage contract.
With a variable-payment scheme (piece rate and tournament) workers solved about 30 tables in both treatments. Workers with a fixed-wage contract in the high-prize treatments solved 12.4 tables. Using the number of tables solved by workers in each payment scheme
19 Managers never had an incentive to rank one of their two most preferred payment schemes third. Managers' third choices support the finding of strong preferences for the piece rate: The piece rate was never ranked third, while the tournament was ranked third by 35 and the fixed wage by 25 managers (pooled over treatments).
20 A multivariate regression of managers' choices with individual characteristics of managers (such as risk preferences) as regressors yields no significant results. Neither risk preference nor productivity beliefs have a significant influence on managers' preferred payment schemes.
to conduct Mann-Whitney U tests (MWU) yields that significantly more tables were solved with a variable-payment scheme (high prize-treatment: fixed wage vs. piece rate, p-value < 0.01 and fixed wage vs. tournament, p-value < 0.01). 21 The low average performance of workers with a fixed wage suggests that the average effort supplied was low, which confirms part two of hypothesis 1.
The data also shows that workers' performance in the variable-payment schemes is not significantly different between payment schemes at any conventional level: piece rate vs. tournament in the high-prize treatment (MWU test, p-value = 0.78) and piece rate vs. tournament in the low-prize treatment (MWU test, p-value = 0.20). There is also no significant difference for each payment scheme between the treatments: piece rate in high prize vs. low-prize treatment (MWU test, p-value = 0.48) and high-prize tournament vs. low-prize tournament (MWU test, p-value = 0.83). These results indicate that the variable-payment schemes provide incentives for workers to exert effort. Furthermore, the equal output in both tournaments implies that the different in tournament prizes did not have a big effect on workers' effort. However, given the low number of observations in the tournaments this result might not be very robust.
While workers' average performance in the variable-payments schemes is not different, the differences in the variances appear large. For the no-competition stage however, only the variance for the fixed wage performance is significantly larger than the variance of the tournament in the high-prize treatment (F-test H0 ∶ same variance: p-value = 0.09). 22 I consider it plausible that the low number of observations in the fixed wage and tournament in the no-competition stage plays a big role for these results. Given the low number of
21 "HIGH" pools the results of the high-prize treatment and the control treatment for the analysis of the no-competition stage.
22 For the other comparisons the same test yields no significant difference: high-prize treatment, fixed wage vs. piece rate (p-value = 0.26) and piece rate vs. tournament (p-value = 0.18) and for the low-prize treatment: piece rate vs. tournament (p-value = 0.78).
subjects in these payment schemes even few outliers have a big influence on the observed results.
In the competition stage any differences in the performance of workers with different payment schemes cannot be completely attributed to an incentive effect, since the allocation of workers to payment schemes is most likely not random. While the results regarding worker sorting are discussed in detail in section 2.3.4, it is useful to note here that the two main results from the no-competition stage seem to be sustained also with worker sorting. First, workers' average performance is lower with a fixed-wage contract than in a variablepayment contract. Workers solve more tables with a variable-payment scheme in the highprize treatment, fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (MWU test, p-value < 0.01), and in the low-prize treatment, fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (MWU test, p-value < 0.01). Second, there is also no significant difference in workers' performance for the variable-payment schemes between treatments: piece rate in high vs. low-prize treatment (MWU test, p-value = 0.41) and high-prize tournament vs. low-prize tournament (MWU test, p-value = 0.68). 23 These results confirm the findings from the no-competition stage and since with the applied matching procedure the number of workers in each payment scheme is identical in the competition stage (n=40 for all payment schemes) the caveat of the low number of observations for the fixed wage and tournament contracts in the no-competition stage does not apply. The heterogeneity in workers' performances in the different payment schemes in the competition stage is discussed in the section about worker self-selection.
2.3.3 Managers' profits and payoff-maximizing contracts
To compare managers' profits between payment schemes I compute the profit per contract. Figure 2.3 displays the mean of manager profits generated by workers, but excludes any earnings managers made due to their own performance or from their questionnaire answers (profit = # of solved tables * 14 points - wage payment). The left panel shows the results for the no-competition stage and the right panel shows the results for the competition stage.
In the no-competition stage of the high-prize treatment managers' profits with a variablepayment scheme are significantly larger than with a fixed-wage contract: fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (MWU test, p-value = 0.04). Offering a fixed wage was therefore not the profit-maximizing choice of managers. This result is the consequence of the low average worker performance with a fixed wage reported above. Comparing profits from the variable-payment schemes in the high-prize treatment yields no significant difference: piece rate vs. tournament (MWU test, p-value = 0.78). The high-prize tournament and the piece rate are therefore on average equally prof-
23 A comparison of the fixed-wage contracts between the treatments seems not useful, since the paid wages differ. For an analysis of the effect of fixed wages on workers' performances see section 2.3.7.
itable for managers. While there is no significant difference in the profits, with a tournament managers might make negative profits, which is impossible with a piece rate. Given that the high-prize tournament does not result in a larger profit, for a risk-averse manager the piece rate might be more attractive. Furthermore, while the differences in the variances of managers' profits for the high-prize tournament and the piece rate are not significantly different (F-test, p-value = 0.41), with the very low number of observations for the tournament this test result should be taken with caution. 24
In the low-prize treatment the average profit was larger with the tournament than with the piece rate (MWU test, p-value = 0.02). The possible profit increase for managers who selected the low-prize tournament is sizable. The piece rate yielded a mean profit of 345 points while the low-prize tournament resulted in a mean profit of 490 points - a difference of 145 points and an increase of more than 40%. This increase is driven by the lower tournament prizes, which reduce managers' costs. The variance in profits is not significantly different between the piece rate and the low-prize tournament (F-test, p-value = 0.17). The caveat of few observations for the tournament mentioned above for the variance test of the workers' performance also applies here. Additionally, by design the number of observations for managers' profits is only half the number of observations for workers.
While the low-prize tournament yields a larger manager profit in the no-competition stage, the difference between these payment schemes in the competition stage is not significant: piece rate vs. low-prize tournament (MWU test, p-value = 0.33). Comparing the profits from the piece rate and the high-prize tournament also results in a non-significant difference: piece rate vs. high-prize tournament (MWU test, p-value = 0.20). Furthermore, managers' profits for the same variable-payment scheme are not different across treatments in the competition stage: piece rate in high prize vs. low-prize treatment (MWU test, p-value = 0.94) and high-prize tournament vs. low-prize tournament (MWU test, p-value = 0.17).
24 Give that the variance in tournament profits in the data is 7644 compared to 4586 for the piece rate, I consider it likely that with more observations the difference would not remain insignificant.
Managers earn on average the same profits with the piece rate and with a tournament in both treatments. For both tournaments the profit variances are larger than for the piece rate: piece rate vs. high-prize tournament (F-test, p-value = 0.03) and piece rate vs. low-prize tournament (F-test, p-value < 0.01).
Like in the no-competition stage the fixed-wage contract was on average not very profitable in the competition stage. In both treatments the fixed-wage contract resulted in the lowest manager profits. 25 The right part of figure 2.3 also suggests a difference in the profitability of fixed-wage contracts between the treatments. But since the paid wages can differ substantially between contracts and therefore also between treatments, a more detailed analysis is required before such a statement can be made. I analyze how the offered fixed wages affect workers' performance and address potential treatment differences in detail in section 2.3.7.
There are two main takeaways for the profitability of the payment schemes. First, managers' profits are larger with a variable-payment scheme in both treatments and stages. These findings are in line with hypothesis 2 and additionally the data shows that a tournament results in larger average profits than a fixed-wage contract. Second, only in the no-competition stage and with low prizes a tournament is more profitable than the piece rate. Therefore the rank-order tournament outperforms the piece-rate contract in this experiment if no worker sorting is feasible. However, the next section shows that the low-prize tournament loses its advantage in the competition stage due to the productivity sorting of workers.
2.3.4 Sorting of workers
After learning the fixed wage offered in the competition stage workers ranked managers' offers knowing that a higher rank for a contract increased the probability of receiving this contract. The mechanism creates an incentive for workers to rank the payment schemes according to their preferences. Since priority is given to more productive workers, very productive workers are basically guaranteed to receive their first choice. Consequently, they have no incentive for stating their true preferences for their second and third choice. But they can base their behavior only on their believed ranking, since they do not receive any feedback on their relative performance before the end of the experiment. 26
Furthermore, an extensive literature in psychology and economics documents that most people are overconfident about their own performance and have too optimistic beliefs regarding their own relative ranking. Camerer and Lovallo (1999) were among the first to demonstrate that overconfidence can result in above equilibrium entry rates into competi-
25 For the high-prize treatment: fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament MWU test, p-value < 0.01). For the low-prize treatment: fixed wage vs. piece rate (MWU test, p-value = 0.08) and fixed wage vs. tournament (MWU test, p-value = 0.03).
26 The only workers who receive limited feedback on their relative ranking are workers who are paid with a tournament in the no-competition stage. By learning whether they won the tournament these workers know whether they solved at least as many tables as one other worker in their group or not.
tions, especially if the number of entrants should be low in equilibrium. As a consequence of excess entry profits in competitions can be below equilibrium predictions. 27 If subjects in my experiment are overoptimistic regarding their performance they might overestimate the probability of receiving their first contract choice. If that is the case their second and third contract choices might not correspond to their true preferences. Also workers might misjudge their probability of winning the tournament and enter the tournament too often. Since the following analysis focuses on workers' first choices and the incentives for stating the most preferred contract first are not biased by overconfidence, I assume that workers' first choices are their most preferred contracts. Whether workers in the experiment are overconfident regarding their own performance and how their beliefs affect their stated preferences for payment schemes is addressed later in this section.
In the left panel of table 2.4 workers' first choices split for both treatments are shown. In both treatments the piece rate was ranked first by at least 50% of workers. The tournament was chosen by more workers in the high-prize treatment (18 in high prize vs. 9 in lowprize treatment), but the distributions of workers' first choices for the two treatments are not significantly different (FEPT, p-value = 0.15). The fixed-wage contract was selected by 20% (high prize) respectively 27% of workers (low-prize treatment). The percentages should not be directly compared, since the offered wages were different.
For the piece rate the wage of a worker only depends on the number of solved tables and in the tournament his wage depends on whether he outperformed the other worker in the same firm. A worker's ability to solve tables is therefore the most important determinant for his expected wage. Consequently it is likely that workers with different productivities prefer different contracts. As a first indicator whether workers' choices are reflective of self-sorting by productivity consider the right panel of table 2.4. Using productivity indicator III - the number of tables solved with a piece rate in step 3 - workers' average productivity is reported split for their preferred payment schemes. 28
In the high-prize treatment workers selecting a fixed wage have the lowest productivity: workers' productivity with first choice fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (MWU test, p-value = 0.07). The difference for workers with a preference for the piece rate or the tournament is not significantly different in either treatment: high prize (MWU test, p-value = 0.23) and low-prize treatment (MWU test, pvalue = 0.13). In the low-prize treatment workers choosing the fixed wage are significantly less productive than those who selected the tournament (MWU test, p-value = 0.04), but
27 For a summary of studies regarding endogenous entry into competitions see Camerer (2003). Examples of experimental studies that find excess entry, at least under some conditions, are Cason et al. (2010) and Morgan et al. (2012).
28 There is a high degree of correlation between all three productivity indicators and therefore most results are unchanged if productivity indicator I or II is used instead. Table B.2 in the appendix lists the Spearman rank correlations between the three indicators and between the indicators and workers' performance in the two working stages.
Table 2.4: First choices of workers and their average productivity given their first choices
not compared to those who wanted the piece rate (MWU test, p-value = 0.11). Pooling the data for both treatments results in significant differences between workers choosing a fixed wage and those selecting a variable-payment scheme: fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (MWU test, p-value < 0.01). There is no significant difference between workers choosing a variable-payment scheme: piece rate vs. tournament (MWU test, p-value = 0.95). 29 These findings support hypothesis 3: The comparisons of workers' productivity deliver clear indications for productivity sorting of workers. More productive workers avoid the fixed wage and choose the piece rate or the tournament. However, there is no clear pattern of productivity sorting of these more productive workers between the two variable-payment schemes in either treatment.
In table 2.4 only workers' average productivity is reported. To analyze the productivity sorting for different productivity levels, figure 2.4 shows for all payment schemes the fraction of subjects who preferred a payment scheme by productivity clusters. Dependent on productivity indicator III each worker is in one of these four clusters: less than 10, 11 to 14, 15 to 18, or more than 18 tables solved. 30 The figure shows that more productive subjects in both treatments are less likely to choose a fixed wage (upper left graph): While in the least productive first group 75% of workers in the high-prize treatment (44% in the low-prize treatment) selected a fixed wage, the proportion declines to 21% in the second group (28% in the low-prize treatment), to 15% for the third group (20% in the low-prize treatment) and in the highest productivity group no worker chose a fixed wage (17% in the low-prize treatment).
The data shows an opposite pattern for selecting a variable-payment scheme (lower right graph): In the high-prize treatment 25% of workers in the first group, 79% in the second, 85% in the third and 100% in the fourth group state the piece rate or a tournament as their
29 Comparing the differences in productivity between treatments for the same payment scheme yields an insignificant difference for fixed wage (MWU test, p-value = 0.98), the piece rate (MWU test, p-value = 0.15) and the tournament (MWU test, p-value = 0.20).
30 Pooling the data over the two treatments: 11% of workers are in the first group (< 10 tables), 44% in the second group (11-14 tables), 33% in the third group (15-18 tables) and 12% in the most productive fourth group (> 18 tables). The distributions of workers using these clusters are not different between the two treatments (FEPT, p-value = 0.52).
Tournament
Variable−payment schemes
Figure 2.4: Fraction of workers opting for the different payment schemes by productivity
preferred payment scheme. In the low-prize treatment the proportion of workers who want a variable-payment scheme is 56% in the first, 72% in the second, 80% in the third and 83% in the fourth group. The data is less clear when looking at the two variable-payment schemes separately. While the proportion of workers preferring the piece rate (upper right graph) increases over the four groups in the high-prize treatment, the proportion is relatively stable for the low-prize treatment. The data for the tournament (lower left graph) does not show a clear connection between the four productivity groups for either treatment. But interestingly no worker of the lowest productivity group (< 10 tables) preferred the tournament.
Overall figure 2.4 presents clear evidence of productivity sorting in the data. The more productive a worker is the likelier it is that he chooses one of the variable-payment schemes. Also this more detailed analysis of productivity sorting does not reveal many insights regarding workers' sorting between the piece rate and the tournaments. It seems as if workers with a very low productivity to not want to enter the tournament, however given that a worker does not belong to the very unproductive workers (at least 10 tables solved) his productivity does not influence the probability of entering the tournament. Interestingly, the data indicates that even a larger tournament prize does not influence this sorting pattern.
Dohmen and Falk (2011) find a similar productivity sorting of workers. They further describe a significant influence of other individual characteristics, e.g. the willingness to take risks and gender, on the sorting. In order to determine the influence of worker characteristics in the sorting decision I use two probit regressions with worker characteristics and contract parameters. The results are shown in table 2.5, which reports marginal effects at the means for all continuous regressors and marginal effects for a change of dummy variables from 0 to 1, with all other variables being set to their respective means. In column 1 the dependent variable is 1 if a worker's first choice was a variable-payment scheme and in column 2 the dependent variable is 1 if the worker selected a tournament. While the regression reported in column 1 considers all workers, 31 in the regression in column 2 only workers who selected a variable-payment scheme (piece rate or tournament) are taken into account.
The following explanatory variables for workers' choices are included in the regressions: Productivity is the number of tables solved during step 3 (productivity indicator III), 1 if male is a dummy which is one for males, Relative self-assessment is the belief of a worker how many workers solved less tables then himself in step 3 (higher numbers mean better relative believed ranking), 1 if rank = 1 or 2 is a dummy that is one if the worker was one of the two most productive workers in his group and Risk attitude is a measure of risk aversion (number of safe lottery choices in step 9; more risk-averse subjects make more safe choices). Furthermore, Fixed wage is the offered fixed wage (rescaled by dividing the wage in points by 10 to increase the visibility of a fixed wage increase) and Low-prize treatment is a dummy variable which is one for the low-prize treatment. 32 The regression results in column 1 illustrate again that a worker's productivity matters for his payment scheme choice. The coefficient for Productivity is positive and significant at the 1%-level. Its value implies that solving one additional table in step 3 increases the probability to select a variable-payment scheme in the competition stage by 6%-points. The significantly negative coefficient on the level of the fixed wage shows that a variable-payment scheme is less attractive with a larger fixed wage alternative. The fixed-wage coefficient implies that a 10 point larger fixed wage reduces the likelihood of a worker to choose a variable-payment scheme by 2%-points.
The coefficients for the gender, the belief about the own relative ranking, being one of the most productive workers or the risk attitude of a worker are all not significantly different from zero. The same is true for the level of the tournament prizes, since the dummy for the treatment is not significantly different from zero. This result implies that the tournament prizes do not affect the decision of workers to choose a variable-payment scheme.
Column 2 of table 2.5 shows the influence of the explanatory variables for the choice between the piece rate and the tournament. The productivity has no significant effect for the choice between these payment schemes. Furthermore, while the subjective belief about the own productivity does not matter for the expected payoff in a piece rate, this belief affects
31 In total 120 workers, 60 in each treatment, participated in the experiment. Four observations from subjects with multiple switching points in the lottery are deleted, since it is not clear how to interpret their lottery choices.
32 The standard errors are not clustered at the session or group level, since the only difference between the groups was the fixed wage, which is included in the regression as an explanatory variable.
Table 2.5: Probit estimations of workers' first choice
Notes: Probit estimates. Marginal effects (evaluated at the mean of independent variables); * p < 0.10, ** p < 0.05, *** p < 0.01. Subjects with multiple switching points in the risk elicitation are excluded. (d) indicates a discrete change for dummy variables from 0 to 1. The larger the value of the self-assessment variable is, the more productive a subjects thinks he is relative to others. The dummy variable 1 if rank = 1 or 2 means that the subject is one of the two most productive workers of the group in step 3. In column 2 only workers who selected a variable-payment scheme (piece rate or tournament) are considered.
the expected payoff in a tournament. I would therefore assume that a worker's belief about his relative ranking affects his decision to choose a tournament. But the coefficient on the relative self-assessment shows that subjects with a more positive self-assessment are not more likely to choose a tournament. Also risk preferences do not have a significant effect. The significantly positive gender dummy (10% significance level) however implies that male workers are 17%-points more likely to choose the tournament compared to otherwise equal female workers. This effect is consistent with the findings of Niederle and Vesterlund (2007) that females are less likely to enter competitive environments.
The insignificant treatment dummy shows that larger tournament prizes do not affect the choice between the piece rate and the tournament. Also an interaction effect between the treatment and the individual productivity of a worker, to control for heterogeneous effects of the treatment for workers with different productivity levels, does not result in a significant effect. The same is true for replacing the relative self-assessment variable with a dummy for overconfident workers, meaning workers who overestimated their own relative ranking, or very overconfident workers, overestimating their own rank by two or more ranks (regressions are not shown). While there is no significant effect of the tournament prizes, the coefficient on the level of the fixed wage is significantly positive. The coefficient implies that a 10 point larger fixed wage increases the likelihood of choosing the tournament by 1%-point. Given that the level of the fixed wage should not influence the trade-off between the piece rate and
the tournament, this effect is surprising to me.
To summarize the analyses regarding workers' sorting there are three main results: First, in both treatments most workers prefer the piece rate. Second, there is self-sorting of workers based on their individual productivity. A more productive worker is more likely to prefer a variable-payment scheme. Third, while more productive workers choose variable-payment schemes, there is no clear productivity sorting in the tournament or the piece rate. Productivity differences do not explain which of the two variable-payment schemes a worker prefers. However, this lack of productivity sorting into the tournaments leads to the previous finding that neither tournament yields larger profits than the piece rate with worker sorting. While the low-prize tournament is cheap it is not attractive enough for workers. Since not enough productive workers want this payment scheme even the low costs are not sufficient to generate a larger manager profit than the piece rate. The high-prize tournament is also not attractive enough for very productive workers. Therefore managers do not earn more with the high-prize treatment than with the piece rate. Whether the individual worker choices were payoff maximizing is analyzed in the next section.
2.3.5 Workers' payoff-maximizing choices
While workers' average earnings can be compared between payment schemes, the more interesting question is whether an individual worker selected the payoff-maximizing payment scheme. 33 To determine the payoff-maximizing choice of a worker his ability has to be taken into account. 34 The following analysis compares workers' payoffs with a piece rate in the competition stage and the hypothetical payoffs of these workers in a tournament. To calculate the hypothetical tournament payoff I make the following assumptions: First, a worker's performance in the piece rate is assumed to be his performance in a tournament. 35 Second, the probability of winning the tournament (pwin) is determined by a worker's rank among all other workers in the tournament. His winning probability is one if he solved more tables than all other workers and it is 50% if half of the other workers solved more tables than him. 36 A
33 Comparing workers' average earnings between payment schemes yields a significant difference for the fixed wage vs. piece rate (MWU test, p-value < 0.01) and fixed wage vs. tournament (t-test, p-value = 0.03) in the high-prize treatment. In the low-prize treatment only the comparison of the fixed wage vs. piece rate (MWU test, p-value < 0.01) is significant, while the difference between a fixed wage and the tournament is not significant (t-test, p-value = 0.13). The difference in earnings between the piece rate and the tournament is not significant in either treatment: high prize, t-test, p-value = 0.47 and low-prize treatment, t-test, p-value = 0.21. T-tests for unequal variances are used for the comparisons including a tournament, since rank based tests seem inappropriate for comparing workers' earnings if 50% of the tournament workers earned much more (tournament winners) and 50% earned much less (tournament losers) than most workers with a piece rate.
35 Given that workers' performances in the piece rate and the tournaments are not significantly different in the no-competition stage I consider this assumption reasonable.
34 Payoff maximization does not necessarily correspond to utility maximization, since in the analysis e.g. effort costs or social preferences are not considered.
36 Workers' performances in both tournaments are pooled to get a finer grid on the winning probability. I consider this pooling to be justified, since the data shows no significant differences between workers' performances in both tournaments.
worker's hypothetical payoff in a tournament is pwin ∗ T w +(1 − pwin )∗ T l , with T w and T l being the respective tournament prizes.
For each worker paid with the piece rate figure 2.5 displays the piece-rate earnings on the x-axis ("Piece-rate earnings") and the calculated hypothetical tournament payoffs on the y-axis. Triangles in the graph represent workers in the high-prize treatment and dots subjects in the low-prize treatment. Larger symbols indicate multiple workers, since the calculation treats workers with the same number of solved tables identically. The upward sloping line is the 45-degree line. Workers who are below this line earned more with the piece rate than their hypothetical tournament payoffs. Subjects who are above the 45-degree line would have earned more in the tournament.
Workers who solved few tables are in the bottom left of the graph. These workers earned more with the piece rate. Most of these subjects are in the low-prize treatment. Workers who are in the middle to upper right of the graph could have earned more in the tournament. The difference in the tournament prizes between the treatments can be seen in the vertical difference of workers in this group. Many subjects are above the line, but while workers in the low-prize treatment (dots) are only marginally above the 45-degree line, workers in the high-prize treatment (triangles) are usually much further above the line. Their "lost earnings" in the piece rate compared to the tournament are larger.
This effect of the different tournament prizes is illustrated in the left part of table 2.6. For all 20 workers in each treatment who were paid with the piece rate the table shows whether their payoff in the piece rate was larger or smaller than their hypothetical payoff from the tournament. In the high-prize treatment for 18 workers the hypothetical tournament payoff is larger than the piece rate earnings, while this is only the case for 9 subjects in the low-prize treatment (FEPT p-value < 0.01). With low tournament prizes the hypothetical tournament earnings are not large enough to result in an improvement over the piece rate for most subjects. Workers in the high-prize treatment often could have increased their expected earnings in the tournament.
Table 2.6: Payoff-maximizing payment schemes for workers paid with a variable-payment scheme
Notes: All 80 workers who were paid with a variable-payment scheme in the competition stage are included. Tournament earnings are hypothetical earnings, calculated as described above. Piece-rate earnings are the actual payoff for workers being paid with a piece rate and hypothetical earnings for workers paid with a tournament.
The results of the identical analysis for workers in a tournament is displayed in figure 2.6 and in the right part of table 2.6. The graph includes all 40 workers paid with a tournament in the competition stage. The y-axis shows their hypothetical tournament payoffs - calculated as described above - and the x-axis displays the hypothetical piece-rate earnings - 8 points times the number of solved table for each subject. The line is the 45-degree line. Filled symbols (triangles for the high prize and dots for the low-prize treatment) indicate that the subject won the tournament, while hollow symbols represent tournament losers.
As for the workers who were paid with the piece rate, there are two groups: Workers above the 45-degree line had a higher hypothetical payoff in the tournament and workers below the line had a higher hypothetical payoff with the piece rate. The data shows that for about half of the workers the tournament was the payoff-maximizing payment scheme. Furthermore, there is no visible difference between the treatments. While in figure 2.5 above many workers in the high-prize treatment were above the line, in figure 2.6 for both treatments there are roughly as many symbols above the 45-degree line as below. The right part of table 2.6 shows that for 8 workers in the high prize and 11 workers in the low-prize treatment, the piece rate would have resulted in a higher hypothetical payoff. These distributions are not significantly different (FEPT, p-value = 0.53).
The analysis so far showed that especially workers paid with a piece rate in the highprize treatment could have increased their hypothetical payoff by being paid with a tournament. However, to answer the question whether workers chose their payoff-maximizing payment scheme also their choices have to be considered. Of the 20 workers being paid with a piece rate in the high-prize treatment 17 stated the piece rate as their first choice. For 15 of these 17 workers the hypothetical tournament payoff was larger than the payoff with the piece rate. In the low-prize treatment also 17 of the 20 workers paid with the piece rate
wanted the piece rate. Of these 17 workers only 6 had a larger hypothetical tournament payoff. These distributions are significantly different (FEPT, p-value < 0.01). Of the workers being paid with the tournament only 13 in the high prize and 8 in the low-prize treatment stated the tournament as their preferred payment scheme. For 9 of these workers in the high prize and 4 workers in the low-prize treatment the tournament was the payoff-maximizing payment scheme. These distributions are not significantly different between the two treatments (FEPT, p-value = 0.65).
These findings show that the difference in tournament prizes affects workers' hypothetical payoffs. For productive risk-neutral workers the high-prize tournament is attractive. In fact the majority of workers selecting a piece rate in the high-prize treatment would have increased their hypothetical payoff by being in the tournament. In the low-prize treatment fewer workers would have benefited from the tournament. There is no such treatment differences for workers selecting a tournament. Additionally, as figure 2.5 shows, the (potential) advantage in hypothetical payoffs of being in the tournament are larger for workers in the high-prize treatment. While these observations suggest that many workers in the high-prize treatment did not select the payoff-maximizing contract by choosing the piece rate, the analysis does not take other aspects of the different payment schemes into account, e.g. riskiness or "fairness".
2.3.6 Main result
The results of the previous sections demonstrate the incentives tournaments can provide for workers. As shown in section 2.3.2 workers' performances in both tournaments are on par with the output in the piece rate. Therefore the inexpensive low-prize tournament in the no-competition stage generates a larger manager profit than the piece rate. This finding demonstrates the potential cost advantage of a fixed-prize tournament compared to a piece
rate.
With worker sorting in the competition stage the low-prize tournament does not attract enough productive workers and therefore the cost advantage of the tournament does not translate into larger manager profits as in the environment without sorting. Even though for many workers the high-prize tournament provides the potential for larger earnings (see the results in the previous section), there is no sufficient self-selection of productive workers into the tournament to outweigh the cost increase for managers. Therefore neither tournament outperforms the piece rate with worker sorting. This finding is a main result of the study. With the given parameters, it is never more profitable for managers to offer a tournament instead of a piece rate if worker sorting is feasible.
2.3.7 Fixed wages and gift-exchange
Whether an employer that pays higher (fixed) wages to his or her employees is rewarded with higher effort is an extensively researched topic in economics. Within this experiment it can be tested whether gift-exchange takes place by analyzing the fixed wages and effort provisions in both stages. There are a few other papers that study the gift-exchange phenomena with employers choosing between different contracts. Probably the closest paper to the setup discussed here is Fehr et al. (2007). In their setting employers decide between trust and incentive contracts. In their study they find that gift-exchange takes place, but it is not as efficient as in studies in which only a fixed-wage contract is available.
In table 2.7 the results of an OLS regressions of workers' performance with a fixed wage in the competition stage are presented. While generally the analysis could be done for the no-competition stage as well, the low number of fixed-wage contracts in this stage does not allow for a meaningful analysis. Therefore in table 2.7 only the results for the competition stage are reported. The dependent variable is the number of tables solved. The following explanatory variables are used in the regression: Fixed wage is the wage a worker received (in points, dividend by 10 to illustrate the effect of a meaningful wage increase), 1 if male is a dummy variable that is one for males, Productivity is the number of tables solved in step 3 (productivity indicator III), First choice fixed wage is a dummy which is one for workers whose first choice was the fixed-wage contract and Low-prize treatment is a dummy variable that is one for the low-prize treatment.
If higher wages are perceived as a gift higher fixed-wage payments should result in higher effort and therefore in more tables solved. This gift-exchange hypothesis is confirmed by the significant positive coefficient on Fixed wage. The coefficient implies that a 10 point higher wage leads to about one more table solved. Since a manager receives 14 points for each table offering a higher wage was profitable. 37
37 A scatter plot with all offered wages in both stages, the corresponding output of workers and the regression line is shown in figure B.1 in the appendix.
Table 2.7: Determinants of workers' output in fixed-wage contracts
The First choice fixed wage coefficient describes that workers who self-selected into a fixed wage solved fewer tables than workers who wanted a different payment scheme. The inclusion of Productivity ensures that the effect is not due to productivity sorting or differences in effort costs. The negative coefficient on First choice fixed wage might demonstrate a selection based on the "unwillingness" to work. The coefficient is relatively large, with about 10 tables less solved by workers who chose a fixed wage. 38
The weakly significant positive coefficient of the gender dummy indicates that males generated more output than females. Furthermore, the significant and positive coefficient on the treatment dummy implies a stronger effect in the low-prize treatment. One possible explanation for this treatment difference could be that the same wage was perceived as "fairer" by workers if the alternative tournament prizes were lower. To analyze whether a certain fixed wage was perceived fairer in the low-prize treatment the fairness rankings elicited in step 10 can be used. In table 2.8 the average fairness rankings (from 1 - 7) for the question "How fair do you consider a fixed payment of ... points?" of workers being paid with a fixed wage in the competition stage are listed. While workers rated a higher wage as more "fair", the differences in the fairness ranking for the same level of the fixed wage between treatments are small. Workers in the two treatments considered the fixed wages as about equally fair and therefore the positive treatment coefficient is not explained by a different "fairness perception" in the low-prize treatment.
The raw data for both stages reveals that the positive Low-prize treatment coefficient is driven by a few workers in the low-prize treatment, who received a high wage (250 points and more) and solved many tables (30 and more). Excluding these observations results in an insignificant Low-prize treatment coefficient. While there is no reason to exclude these observations, this procedures hints that the positive coefficient is driven by these observations.
38 To ensure that this result is not due to a selection that is driven by the difference in offered wages the regression was also done with an interaction term between First choice fixed wage and Fixed wage. This regression yields similar results, which indicates that the significantly negative coefficient of First choice fixed wage is not entirely driven by sorting (regression results are not reported).
Table 2.8: Average stated fairness
Notes: "Fairness" is stated on a 1-7 Likert scale. Only workers paid with a fixed wage in the competition stage are included.
Therefore a possible reason of the reported treatment difference might be higher wage offers in the low-prize treatment and not a different perception of the fixed wages.
2.4 Discussion and conclusion
Rank-order tournaments are a frequently studied payment scheme in the theoretical, but also experimental economic literature. In this paper the profitability of a tournament as payment scheme with the possibility of worker sorting is analyzed. The data illustrates the incentive effect of tournaments for workers' performance, but also that employers only benefit from this effect if workers are not able to sort themselves into different contracts. In the environment with worker sorting a tournament does not generate larger firm profits than a piece rate. While a tournament can be an attractive payment scheme for productive workers if the prizes are sufficiently large, for a manager a tournament with large prizes does not yield greater profits than a piece-rate contract. Due to productivity sorting also a low-prize tournament does not yield larger profits than a piece rate. This finding is likely part of the explanation why a tournament is usually not the main contract scheme for many workers in labor markets, despite its good incentives.
These results could explain why tournaments are usually used as "add-ones" in (implicit) contracts - e.g. a promotion tournament or competition for a bonus - but not as the main payment scheme. When other incentive inducing payment schemes are available - the piece rate in the presented experiment - managers have no advantage by offering a tournament. While managers in the presented setting do not earn significantly less with a tournament compared to a piece rate, this result could be conditional on the used matching procedure. In the experiment each manager receives a sufficient number of workers with all payment schemes. In real world labor markets positions with an unattractive payment scheme might be unfilled or it might take some time until vacancies are filled.
Workers' payment scheme choices show a clear sorting pattern. More productive workers prefer variable-payment schemes, confirming previous findings. But the individual productivity does not explain the sorting between the two variable-payment schemes piece rate and tournament. The only personal characteristic with a significant effect on the choice between the piece rate and a tournament is the gender. Females are less likely to select a tournament, but they are not less likely to select a variable-payment scheme in general.
However, the experiment does not replicate the results regarding the importance of risk preferences for workers' choices reported in previous studies. Typically variable-payment schemes and especially a tournament are considered as risky for workers, since the exact wage payment is unknown before the conclusion of the task. In the presented experiment there are two factors which might reduce the importance of risk preferences: First the uncertainty in the piece rate is relatively low. Subjects had already worked for more than 15 minutes on the task when they stated their preferences over payment schemes. Therefore they probably had a good idea how many tables they could solve. Second, risk preferences were elicited with lottery choices and not with a more general statement "How willing are you to take risks in general?" as in Dohmen and Falk (2011). They argue that both risk measures - lottery choices and general statement - are highly correlated, but use the questionnaire answers for their analysis. While it is possible that the lottery task did not accurately measure subjects' risk attitudes regarding employment choices, I view the non-significance of the elicited risk preferences for the payment scheme choices as surprising.
Equally unexpected is the irrelevance of workers' relative self-assessment of their rank for the decision whether or not to enter the tournament. Even though there is no significant effect of workers' self-assessment for the payment scheme choice, many subjects in the experiment have overoptimistic beliefs. 30% of workers (36 subjects) overestimate their own rank in step 3 and 18% (21 subjects) overestimate their rank by at least two ranks.
This study shows that tournaments might not be used very often simply because they are either unattractive for workers or too expensive for firms. These effects should be true for most tournaments designs, but I cannot exclude the possibility that there exist tournaments that are not more expensive for managers and simultaneously more attractive than a piece rate for workers. While the cost argument makes it unlikely that larger tournament prizes are a possibility, a smaller prize spread between the winner and the loser prize could be such a design. Furthermore, a tournament might be more attractive for workers if the other available payment schemes are not as well liked as the piece rate in this study. Alternatively the level of the piece rate could be smaller, such that very productive workers prefer a relatively cheap tournament to the piece rate.
Another aspect that cannot be addressed with the current design is the role of repetition. Workers make the sorting decision exactly once. Despite the fact that they have accumulated quite some experience in the task when deciding between the available payment schemes, they have relatively little information regarding the productivity of other workers and their relative ranking. On the one hand, having subjects perform a real-effort task has the advantage of good measurements of their productivity and the data clearly demonstrates that productivity differences between workers are an important factor for the observed sorting behavior. On the other hand, the real-effort tasks creates a natural limit on the duration of the experiment and therefore leaves the question whether the sorting behavior would change when workers make the sorting decision several times unanswered.
This paper is a first attempt in understanding the effects of competition for workers on the profitability of labor-market contracts. The separation of the incentive and sorting effect demonstrates the importance of worker sorting for firms' profits. The explicit choice between different incentive schemes influences which payment schemes are attractive for productive workers. In further research it will be interesting to investigate the importance of sorting for the profitability of tournaments more thoroughly in especially with regard to different payment schemes and more variation in tournament prizes and designs.
Appendix Chapter 2
| Step 9 | Risk preferences | 10 binary lottery choices |
|---|---|---|
| Step 8 | Question- naire III | state amount of stress [1-7] state amount of effort [1-7] How many subjects performed worse? [0-5] |
| Step 7 | Competition | managers rank payment schemes workers state preferences over payment schemes 10 min working stage |
| Step 6 | Question- naire II | state amount of stress [1-7] state amount of effort [1-7] How many subjects performed worse? [0-5] |
| Step 5 | No competition | subjects randomly become managers or workers managers choose payment scheme 10 min working stage |
| Step 4 | Question- naire I | state amount of stress [1-7] state amount of effort [1-7] How many subjects performed worse? [0-8] |
| Step 3 | Effort elicitation | work for 5 min solve as many tables as possible piece rate of 8 pts per table |
| Step 2 | Skill elicitation | solve one table as fast as possible (paid) |
| Step 1 | First table | solve one table as fast as possible (unpaid) |
B.1.1 Productivity indicators
In table B.2 below the Spearman rank correlations for all three productivity indicators, as well as the Spearman rank correlations between the three measures and the number of tables a worker solved in steps five (no-competition stage) and seven (competition stage) if the worker was paid with a variable-payment scheme are listed.
For productivity indicator I there are 225 observations (9 subjects did not solve the table correctly in the given time). For productivity indicators II and III there are 234 observations. In the table pooled data for all treatments is presented. There are 140 observations used for the tables solved in step five (no-competition stage), 110 observations for the number of tables solved in step seven (competition stage) and 101 for the correlation of the performances in steps five and seven. The difference to the 234 total subjects comes from workers with a fixed wage and managers. Both types of subjects are excluded for these two correlations. Since many workers do not provide a lot of effort if they are paid with a fixed wage, these observations are not included. Remember: Productivity indicator I is the time needed to solve the first table, productivity indicator II is the payoff received for solving the 2nd table and productivity indicator III is the number of tables solved in step 3. All correlations have the expected sign and are significantly different from zero.
Table B.2: Spearman rank correlations among productivity indicators and workers' outputs
Notes: All correlations are significantly different from zero (p-values < 0.01).
B.1.2 Scatter plot of fixed wages and workers' output
Figure B.1 shows the offered fixed wages in the no-competition and competition stage and the resulting performance by workers. Dots represent observations from the low-prize treatment and triangles are observations from the high-prize treatment. There are no observations from fixed-wage contracts in the low-prize treatment in the no-competition stage. Furthermore, the OLS regression lines (see section 2.3.7 above) are shown. The regression line for the competition stage illustrates the significant effect of higher wages on workers' performance. The shown line for the no-competition stage comes from a similar regression that is not reported in the paper due to the low number of observations. The coefficient on the fixed
wage is not significantly different from zero for the no-competition stage.
B.2 Appendix II - Instructions
Below is the translation of the German instructions for the high-prize treatment. The originals are available from the author upon request. Instructions for the low-prize treatment only differ in the tournament prizes and bounds for the feasible fixed wages. Instructions were provided on screen before each step. Since the questionnaires in steps 6 and 8 were almost identical for workers and managers, only the question that differs for managers is included in the translation for steps 6 and 8. All shown emphasizes are in the original instructions.
Welcome
WELCOME!
Thank you for taking part in this experiment. The experiment lasts approximately 2 hours and you will receive your reward directly at the end of the experiment.
The experiment consists of multiple parts and at the start of each section you will see the instructions on your screen. Each screen with instructions will be marked by the header Instructions. If you still have questions after reading the instructions, please raise your hand. An experimenter will come to you to answer your question in private.
In the different parts of the experiment you can earn points. At the end of the experiment all points are converted to Euros and result in your payment. 10 points are always 13 Cents.
Please remain quite during the experiment and do not talk to other participants. During the experiment you will have to solve multiple exercises. You have to solve these tasks without any aids. Because of this, please store all your cell phones, calculators, paper, pens, books and so one in your bag.
Please click on CONTINUE.
Step 1
Instruction Part I
It is your task to count how often the digit one appears in the table below. The table consists of ones and zeros. You can see an example in the lower left. This table has 38 ones.
You have a total of 75 seconds. Please solve the task as quickly as possible.
Here you can enter your answer and confirm your entry.
Please click on CONTINUE. Your time starts as soon as all participants have clicked on CONTINUE and when you see the table on your screen.
Step 2
Instruction Part II
In this part you have to solve an identical task to the part before.
Different than before you will be paid for the correct solution of the task. Your payment is larger, the quicker you solve the task correctly. You have a total of 75 seconds. The quicker you enter the correct number, the larger your payment. In the beginning you have 150 points. Each second that elapses until you enter the correct answer results in a deduction of 2 points from your payment.
If you take 20 seconds to solve the task you receive 110 points for this part.
If you enter a wrong number, 20 points will be deducted from the remaining points and you can enter a new number. You will only receive a payment if you enter the correct number within 75 seconds. Under no circumstances your payment can be negative.
Please click on CONTINUE. Your time starts as soon as all participants have clicked on CONTINUE and when you see the table on your screen.
Step 3
Instruction Part III
Your task in part three of the study is it to solve as many tables as possible. You will again see a table with ones and zeros, like in the previous parts. However, now the task is not to solve one table, but to solve as many tables as possible. A new table will only appear if you have solved the previous one correctly.
You have a total of 5 minutes to count in as many tables as possible the number of ones. After you have entered the correct answer for a table, a new table appears. If your answer is wrong, you will see a message and you can enter a new answer.
For each correct answer you receive 8 points. Each wrong answer results in a deduction of five points from your payment.
If you solve three tables correctly and enter one wrong answer you receive 19 points for this part of the study. The remaining time is shown in the upper right corner.
Please click on CONTINUE now. The next part starts as soon as all participants have clicked on CONTINUE.
Step 4
The working time of five minutes is over.
Please state as how exhausting you experienced the task in the previous part: Very easy Very hard
Please state how much effort you exerted for the task in the previous stage: Not at all - As much as possible
In total there are 18 participants in this session in two groups. You therefore belong to a group of 9 participants. Please estimate how many participants in this group solved fewer tables than you in the previous part?
Your payment for this task is larger, the better your estimate is. If you estimate is correct you receive 75.0 points. If your estimate does not over or undershoot by more than one person you receive 37.5 points. If your estimate over or undershoots by more than one person you do not receive a payment for this task.
0 - No one, no participant solved fewer tables than me.
8 - I solved the most tables, all other eight participants solved fewer tables than me.
Step 5
Instruction Part IV
The instructions for part four are somewhat longer. Therefore you can go back and forth with the Page 1 and Page 2 buttons, which are at the bottom of the screen, below the screen with the instructions.
With the start of the next part there are two different roles in the experiment. Each participant is from now on either an employee or a manager. Despite the fact that employees and managers can be female as well as males, the instructions will call all managers female managers (Note: there is a gender distinction in German) while all employees are male employees.
For the next part of the experiment three participants will form a group. Each group acts in the following part as one firm. In each firm there is one manager and two employees. Also the selection who will be a manager and who will be an employee is randomly determined by the computer.
The task of the employees is, like in the previous parts, to count the number of ones in tables. For this participants have 10 minutes. Which means the working time is exactly twice the time of the previous part.
How you will be paid for this task depends on the decision of the manager which payment scheme to choose. The payment of the manager, however, depends mainly on the number of correctly solved tables by the employees (more on this on page 2 of the instructions).
Below the tasks and the choices of managers and employees are described. Please read these instructions carefully and raise your hand in case you have some remaining questions after
reading the instructions.
Managers have three different payment schemes to choose from:
Instruction Part IV Page 2
The payment of managers consists of two different components.
1) Each manager receives for each correctly solved table by her employees 14 points. However, she has to pay the employees with this revenue. This means from her earnings the wage payments to the employees are deducted. Here the manager has the choice between the three payment schemes described on the previous page. The manager makes her choice and workers are told the payment scheme before the start of the working period.
2) A manager receives a payment dependent on the number of tables she solves correctly.
If the manager solves more than 10, but less than 20 tables, she receives 50 points. Does she solve more than 20 but less than 40 tables, she receives 100 points and if she solves more than 40 tables she receives 150 points. This payment is added to her earnings.
The payment of a manager therefore depends on the number of tables solved by her workers as well as on the number of tables she solves herself.
Example
Assume that the manager solved 14 table herself and her employees solved 20 and 10 tables.
The manager therefore receives a payment of 50 points + (20+10)*14 = 470 points.
From this payment the wages of the employees are deducted. This means, dependent on the payment scheme, which the manager selected at the start of this part, the following wage payments are deducted from her payment:
With the variable payment (20+10)*8 points, so a total of 240 points are deducted. With a fixed wage the manager has to pay the fixed wage and with a competition she has to pay a total of 500 points.
Quiz
In this part of the experiment, both, managers and employees, have the possibility to do something else besides counting ones in tables.
Below the table there will be two buttons. With the button "Quiz" a participant can switch to a window in which quiz questions are asked. With the button "Experiment" the screen switches back to the table.
During the time a participant is on the quiz screen he or she cannot solve any tables. The answering of quiz questions is not paid. Each participant can go back and forth between the experiment and the quiz during the entire working time.
When you have understood these instructions and do not have any further questions, please click on CONTINUE.
Step 6 - Questionnaire for mangers
First two questions are identical to step 4.
How many tables, do you think, have been solved by your employees?
Your payment for your estimate is larger, the better your estimate is. If your estimate is correct you receive 37.5 points. If your estimate is not wrong by more than plus or minus three tables, you receive 18.8 points. If your estimate is wrong by more than three tables, you do not receive a payment for this task.
(Workers again state how many workers they believe solved less tables than they themselves. [0-5])
Step 7
Instruction Part V
This part 5 is very similar to the previous one. Again managers can choose between the three payment schemes for their employees (competition, fixed wage or variable payment). Also the payment of the managers and the working time stay the same. However, different to before, the employees are not tied to one manager anymore.
In this part of the experiment three managers and six employees are grouped together. Each manager will offer a different payment scheme, which means that each payment scheme will be used by one firm. First managers choose the level of the fixed wage, which they are willing to pay, if their firm wants / has to pay a fixed wage. Then each of the managers states which payment scheme she wants the most, which one she likes second best and which one she likes the least.
If two (or more) managers prefer the same contract (choose the same contract as their "first choice") a random draw determines who can offer this contract. After this the second choice of the remaining managers are considered and it is tried to fulfill these choices. If again the managers agree in their second choice one manager has to offer her third choice. Hereby the previously chosen fixed wage of the manager who offers a fixed wage is chosen.
After the statements of the managers (and possibly the random draw) decided, which manager offers which contract, the employees choose between the different contracts. Each employee states which of the three payment scheme he prefers most, which one would be his second choice and which one he likes the least.
Different than the statements of the managers not a random draw decides if multiple employees prefer the same payment system, but the statements of an employee who solved more tables in part 3 are fulfilled fist. (This was the part in which each participant was asked to solve as many tables as possible within five minutes.) According to the choices of the employees each manager again receives two employees. Each firm therefore again consists of one manager and two employees.
Summary
Managers again receive 14 points for each table that was correctly solved by one of her employees. From this payment they have to pay the wage of their employees.
The same three payment schemes as in the part before are possible: Variable payment, competition or a fixed wage. The details of the payment schemes of the three methods also have not changed, e.g. the variable payment is still 8 points per table.
The split in employees and managers remains unchanged. If you have been an employee
APPENDIX B
87
before, you are also an employee in this part. Like in the part before there is again a quiz for all participants. The participation in the quiz is not paid for any participant.
Example
Each manager now states which fixed wage she would pay. Then each manager states the order in which she would select the different payment schemes.
After these statements have been used to determine which manager offers which contract, each employee sees the choices of all three managers on his screen. Each payment scheme
has a number 1-3. The employee then states the order in which they would select these three payment methods.
The number of the method you prefer the most you please state in the field "1st Choice", the number of the method you want as your second choice you please state in the field “2nd
Choice" and in the field "3rd choice" you state the method you like the least.
Please click on CONTINUE, once you have understood these instructions.
Selection of fixed wage - managers
Your role in this study is unchanged. This means you are still a manager.
Please select now which fixed wage you pay to your employees in case you want / have to offer a fixed wage in this part.
Reminder: Different than before employees are not directly linked to a manager. This means workers see your wage offer, as well as the contracts of the other managers. Each manager
offers a different contract, this means that if you offer a fixed wage, the other two managers offer a competition and a variable payment.
Please select the level of the fixed wage for your workers [in points]:
Reminder: You receive 14 points for each table that is correctly solved by one of your employees. If you select a fixed wage, each employee receives the same wage, independent
of the number of tables he solved. In the variable payment from the 14 points 8 points go to the employee. In the competition the employee who solved more tables receives 450 points
and the employee who solved fewer tables receives 50 points.
Selection of managers
Possibility 1: Fixed wage of X points
Possibility 2: Variable payment
Possibility 3: Competition
1st choice, 2nd choice, 3rd choice
Reminder: You receive 14 points for each table that is correctly solved by one of your employees. If you select a fixed wage, each employee receives the same wage, independent
of the number of tables he solves. In the variable payment from the 14 points 8 points go to the employee. In the competition the employee who solved more tables receives 450 points
and the employee who solved fewer tables receives 50 points.
Worker selection screen
The three managers of your group offer the following contracts:
Offer 1: Fixed wage
Offered wage: X points
Offer 2: Competition
Offer 3: Variable payment
Please select your favorite order of the contracts. The higher you rank an offer, the likelier it is that you will receive this offer.
Enter the number of the offer you like best in the first field, the number of the second best offer in the second field and the number of the contract you like least in the third field.
Step 8 - Questionnaire
Identical to Step 6 above.
Step 9 - Questionnaire
Questionnaire page 1 of 3
In the questions on this page you play for real money. Below you see 10 bets we offer you.
Please decide in each row whether you want bet A (left column) or bet B (right column).
Please indicate now in each row, whether you want the left or the right bet.
Once you have finished the questionnaire, we will play out one of the 10 bets. This means a random draw will determine which row we will play. In the selected row, we will play the
bet you have chosen.
Example
e.g. in the first row you have the choice between bet A, which pays 2 Euros with 10% probability and with 90% 1.60 Euro. You can also choose bet B, which pays with 10%
probability 3.85 Euros and with 90% 0.10 Euro.
```
Bet A Bet B 10% chance of winning 2 Euro and 90% of 1.60 Euro. Bet A / B 10% chance of winning 3.85 Euro and 90% of 0.10 Euro. 20% chance of winning 2 Euro and 80% of 1.60 Euro. Bet A / B 20% chance of winning 3.85 Euro and 80% of 0.10 Euro. 30% chance of winning 2 Euro and 70% of 1.60 Euro. Bet A / B 30% chance of winning 3.85 Euro and 70% of 0.10 Euro. 40% chance of winning 2 Euro and 60% of 1.60 Euro. Bet A / B 40% chance of winning 3.85 Euro and 60% of 0.10 Euro. 50% chance of winning 2 Euro and 50% of 1.60 Euro. Bet A / B 50% chance of winning 3.85 Euro and 50% of 0.10 Euro. 60% chance of winning 2 Euro and 40% of 1.60 Euro. Bet A / B 60% chance of winning 3.85 Euro and 40% of 0.10 Euro. 70% chance of winning 2 Euro and 30% of 1.60 Euro. Bet A / B 70% chance of winning 3.85 Euro and 30% of 0.10 Euro. 80% chance of winning 2 Euro and 20% of 1.60 Euro. Bet A / B 80% chance of winning 3.85 Euro and 20% of 0.10 Euro. 90% chance of winning 2 Euro and 10% of 1.60 Euro. Bet A / B 90% chance of winning 3.85 Euro and 10% of 0.10 Euro. 100% chance of winning 2 Euro and 0% of 1.60 Euro. Bet A / B 100% chance of winning 3.85 Euro and 0% of 0.10 Euro.
```
We add the money you earn to your total income of the study.
Questionnaire page 2 of 3
```
How well did you like the task in this experiment? Not at all - - - - - - - Very good As how difficult did you perceive the task in this experiment? Very easy - - Very difficult How well did you like the entire experiment? Not at all - - - - - - - Very good How fair do you consider the following payment schemes for a worker in parts 4 and 5? Fixed payment of 100 points Very unfair - - - - - - - Very fair Fixed payment of 200 points Very unfair - - - - - - - Very fair Fixed payment of 300 points Very unfair - - - - - - - Very fair Fixed payment of 450 points Very unfair - - - - - - - Very fair Variable payment of 8 points per table Very unfair - - - - - - - Very fair Competition with 450 points for the best worker and 50 for the other Very unfair - - - - - - - Very fair
```
Questionnaire page 3 of 3
Please state your Abitur grade: If your highest school diploma is not a German Abitur e.g. Matura, A-levels, ... please state a 0 in the field.
Please state your final high school math grade: If your final math grade was not in the German 15 point system please state a 0.
Please state your final high school German grade: If your final German grade was not in the German 15 point system please state a 0.
Please state the year of your highest high school certificate:
Please state your gender:
Are you currently enrolled in a University / University of Applied Science?
Are you working at a University / University of Applied Science?
(e.g. as teaching or research assistant, doctoral student or employee)
Yes - No
Do you have a job outside of the university? [e.g. employee, teacher, servant, ... ] Yes - No female - - male
Yes - No
Flip a coin or vote: An Experiment on Choosing Group Decision Rules 1
with Sander Renes
3.1 Introduction
Before a group or society can take a decision, whether it is about what restaurant to visit, or whether to implement a social security reform, the group has to select a decision rule to aggregate individual preferences. To maximize the value of the final decision to the group, its members should agree on a mechanism that maps the vector of individual preferences into an efficient decision. However, in a seminal paper Myerson and Satterthwaite (1983) show that if individuals are privately informed about their preferences over outcomes, there is no efficient decision rule that is unanimously preferred over the non-implementation status quo. If a participant can force non-implementation, she 2 should do so whenever she learns that the (proposed) decision rule can lead to outcomes she likes less than the status quo. Because of the existence of an outside option (the status quo), some individuals are better off not participating in the efficient mechanism at all. In this paper we address the problem of (efficient) mechanism selection in a group decision experiment. We study binary comparisons between four decision rules and investigate the role of different outside options and private information on subjects' mechanism choices.
In a collective decision about the implementation of an indivisible public project, an optimal mechanism results in implementation if the sum of individual valuations is larger than zero. While such mechanisms exist and groups can in theory replace any existing mecha-
1 We appreciate the comments and the advice received from Dirk Engelmann, Hans Peter Grüner, Eckhard Janeba, Henrik Orzen, the participants at the ESA conference in Heidelberg, the SEET meeting in Malta, the seventh Bavarian Micro Day in Passau and seminar participants in Mannheim, Nuremberg and Rotterdam. Financial support from the German research foundation (DFG), SFB 884 is gratefully acknowledged. All remaining errors are our own.
2 For better readability only female pronouns are used.
nism by a more efficient one, other mechanisms are often selected in practice. The theoretical literature has identified private information and outside options as key aspects of the mechanism choice situation that determine whether an efficient mechanism can be implemented. Comparing Myerson and Satterthwaite (1983), Schmitz (2002), Segal and Whinston (2011), and Grüner and Koriyama (2012) shows that, if individuals can better serve their interest in an inefficient alternative than in the efficient mechanism, they have no reason to select the efficient mechanism. Additionally, the Myerson-Satterthwaite theorem illustrates that any individual with private information about her project payoff should use this information to determine her preferences over the mechanisms. Individuals that dislike the public project often have a better chance of blocking the project in an inefficient mechanism, and therefore are worse off under the efficient mechanism.
In this paper we study the influence of both of these aspects on individuals' mechanism choices. We conduct an experiment with a two-stage voting procedure in a collective decision making situation. In the first stage (mechanism choice), individuals select their preferred decision rule from two available mechanisms. In the second stage, each three-person group applies the chosen mechanism to determine the group decision on the provision of an indivisible public good (implementation decision). By varying the distribution of private valuations for the public good between treatments and the available mechanisms between rounds, we investigate the role of the outside option on the mechanism choice. Furthermore, we vary the moment at which the private information about the individual project payoffs is revealed within treatment. This design enables us to test the relationship between preferences and the revelation of private information within subject. Understanding how the revelation of private information alters choices, can help us to shed light on problems that occur in many choice institutions. Since in many real-life situations decision rules can be altered in the interim stage where individuals have private information, we consider this aspect particularly important.
In our experiment the mechanism selection is done via a random dictator procedure. We ask subjects to declare their preferred mechanism out of 2 options. After each subject has selected her preferred mechanism in the first stage, one group member is randomly chosen in stage two and her preferred mechanism is implemented as the group decision rule. While this random dictator rule is neither an optimal nor a realistic procedure, it elicits the willingness to participate in a mechanism without any distortions. It ensures incentive compatibility, while it allows us to present the required choices in a randomized order to minimize presentation or order effects. The four group decision rules we use are: the Simple Majority (SM) mechanism, a first-best optimal direct revelation game known as the Arrow, d'Aspremont Gérard-Varet (AGV) mechanism, 3 the Non-implementation Status Quo (NSQ) and the flip of a fair coin, or Random implementation (RAND). Since this two-stage voting
3 This mechanism is also known as the expected externality mechanism. It was originally proposed in Arrow (1979) and d'Aspremont and Gérard-Varet (1979).
procedure is a game of imperfect information, there are several measures of efficiency that could be relevant. We measure efficiency through realized values, and thus efficiency refers to ex-post classical efficiency.
With the chosen design we can conduct a strong within-subject test of the MyersonSatterthwaite theorem by comparing subjects' mechanism choices in an ex ante and an adinterim stages. Ex ante, an uninformed individual should prefer the more efficient mechanism. Ad interim, if she knows she has a negative payoff from project implementation, the same individual should prevent the use of any mechanism that allows for project implementation, and thus prefer NSQ. By changing the two available mechanisms between rounds, we can test the predictions of Schmitz (2002), Segal and Whinston (2011), and Grüner and Koriyama (2012) that participation constraints are less binding if the outside option includes risky outcomes. The variation of the potential valuations for the public good over treatments allows us to demonstrate that the observed change in preferences is driven by changes in expected payments.
Our results demonstrate that without private payoff information individuals select efficient mechanisms. Subjects choose the more efficient mechanism because it yields the largest expected payoff ex ante. Ad interim, when they are informed about their valuation for the project, they only prefer the (more) efficient mechanisms if they have a positive private valuation, otherwise they opt for the non-implementation status quo whenever possible, exactly as predicted by Myerson and Satterthwaite (1983). Interestingly, we find indications that the differences in expected payoffs from the mechanisms as they are played in the lab, strongly influence the choices made. These results illustrate the importance of thinking about the decision rule to use in a group, or committee, before this group faces any actual decisions. Deciding upon a decision rule after an issue comes up is very inefficient. This effect is, for instance, sometimes clearly observed in hiring committees at universities and research institutes. Committees that fail to agree upon a decision rule before meeting the candidates, will likely have different subgroups within the committee that favor different candidates. In the ensuing discussion, the subgroups can propose the criteria that favor their preferred candidate. With different preferred candidates this will lead to a discussion about what set of criteria to use, and a costly delay of the decision or even a failure to hire a suitable candidate is likely.
Our results from the ad-interim stage suggest that it can be feasible to implement an efficient mechanism as long as the outside option yields uncertain results. With a risky outside option, individuals who know they do not want to implement the public project have no guaranteed way of blocking the implementation. In the absence of a secure non-implementation option, these subjects prefer the (more) efficient mechanism because it allows them to influence outcomes. Since both subjects with positive and subjects with negative valuations of the public project prefer to have influence over the outcome, agreements on efficient mechanisms are possible. These results support the predictions of Schmitz (2002), Segal and
Whinston (2011), and Grüner and Koriyama (2012).
With a safe, non-implementation status quo, our three-person groups are already severely hindered in implementing an efficient mechanism. Public projects and reforms usually require all involved individuals to cooperate, pay part of the price (through taxes for instance), permit use of their resources or even the reorganization (or removal) of their property rights. In a completely voluntary setting the kind of inertia caused by a non-implementation status quo in our experiment, would make public projects virtually impossible to negotiate. Simultaneously, virtually all decision bodies require a proposal be brought up for consideration before they can change the status quo, such that this type of inertia can occur virtually everywhere.
In many situations the mechanism choice takes place when agents are already informed about their preferences over outcomes and the outside option is fixed by the existing situation. If the existing situation does not involve an efficient mechanism the group might need coercive power to force individual members to cooperate. As a consequence, our results provide a rationale for the role of coercive power in group decisions. By forcing group members to participate in individual projects, the group surplus can be increased since individual projects no longer need to satisfy all participation constraints. If an entity has coercive power, the participation constraints of individuals become less relevant. Furthermore, our results also provide evidence that specifying decision procedures in constituting documents is a good idea. By setting a standard procedure and demanding that these procedures can only be changed through a considerably more demanding procedure, the drafters of the constitution ensure that the mechanisms are de facto established in an ex-ante stage.
The rest of the paper is organized as follows: section 3.2 summarizes the previous research on group mechanism choices and participation constraints and section 3.3 outlines the experimental design and the three treatments. Section 3.4 states the theoretical predictions, while section 3.5 describes the results on all predictions and discusses further findings. Finally, section 3.6 concludes.
3.2 Related literature
Our setup is most closely related to the literature discussing the choice of voting rules or constitutions. The discussion on constitutional choice features two (connected) ideas: stability and inertia. Since these constitutions contain many meta-rules, changing them often is undesirable. In a seminal contribution Barbera and Jackson (2004) show that a constitution that specifies the same simple majority rule to implement policy and to change the constitution, can be hijacked by self-interested majorities. To ensure a stable constitution, it has to adhere to a property these authors call self-stability. Under the rules set-out by the constitution, the society should not decide to change the constitution. Requiring a qualified majority to change the constitution is an easy way to create more self-stability. A similar idea is proposed in an explicitly dynamic setting by Acemoglu et al. (2012). Given some constraints that guarantee sufficient patience and prevent Condorcet-like voting cycles, these authors show that the stability of the constitution crucially depends on the set of other dynamically stable constitutions. As long as no winning coalition can be found that prefers another stable constitution, the state is stable. In this sense the set of stable coalitions form long-term outside options that should not be preferable to the agents. These results do not imply, however that the self-stable states are efficient (especially in the short-run). In fact, the authors argue that the inefficiencies in self-stable states could cause several of the seemingly costly problems observed in many systems.
Inertia is the central concept in a second strand of research, the social choice literature. This, mostly theoretical, literature is riddled with impossibility theorems that show it is not possible to design a social choice rule, or an implementing mechanism that combines some set of desirable properties in every imaginable circumstance. The most famous impossibility result by Arrow (1950) states that non-dictatorship, Pareto efficiency and independence of irrelevant alternatives cannot be obtained by any social choice function for all potential preference profiles. In similar vein, Myerson and Satterthwaite (1983) show that even in a setting with only two players and independent valuations, an efficient, interim incentive compatible and budget neutral mechanism for trade does not exists, as long as players can guarantee themselves a sufficiently large payoff when not trading. 4 The result that individual rationality, incentive compatibility and budget balance are incompatible for a N-player public good setting, of which our experiment is a special case, was proven by Mailath and Postlewaite (1990). Similar results are obtained by Güth and Hellwig (1986, 1987) for the private supply of a public good. When the mechanism to decide on production levels is selected through a veto rule (i.e. unanimous acceptation), efficient production cannot be reached unless a subsidy is provided. These impossibility results illustrate how a certain non-implementation status quo can stifle any chance of (efficient) mechanism change.
Several papers have derived possibility results that illustrate the dependence of impossibility results on the assumptions on the status quo that occurs if the mechanism is rejected. Cramton et al. (1987) show with a status quo of a more or less equal distribution of the good (ownerships rights in their setting), it is possible to design an auction like procedure that is both ad interim incentive compatible and ex-post efficient, without requiring subsidies. Schmitz (2002) shows that decisions on public good provisions can be made through an efficiently designed mechanism for some particular status quo settings. In many cases a status quo, either an interim allocation or a probability of implementation between 0 and 1, can be found that allows an efficient implementation and does not violate the incentive compatibility constraints at the interim stage. In case the valuation of the public good is identically
4 An older, less general result can be found in Chatterjee (1982), while a more general statement can be found in a.o. Segal and Whinston (2014). The interpretation in this paper is mostly due to Cramton et al. (1987).
and independently distributed, such a status quo can always be found. This implies that both in the bargaining game of Myerson and Satterthwaite (1983) and in a public good provision problem, a status quo exists that will incentivize individuals to accept an efficient mechanism ad interim. Segal and Whinston (2011) make a similar point by demonstrating how background risk, or a status quo that is not quite as secure as the no-trade outcome, can increase the willingness of individuals to accept mechanism changes. Most importantly for our paper, their proposition 1 states that individuals are willing to accept a more efficient mechanism, if it has the same equilibrium distribution over allocations as the status quo, or default mechanism. Grüner and Koriyama (2012) illustrate that it is even possible for groups to shift from a (simple) majority voting system to the AGV mechanism, without violating interim participation constraints. This result is quite remarkable, since majority systems are much more efficient than a fixed or random status quo. The efficiency gains of moving to the AGV are therefore limited. However, for some settings and distributions the gains are large enough to compensate individuals for the potential loss in information rents.
Two closely related experimental papers study the effect of social preferences on mechanism choice. Bierbrauer et al. (2014) identify the theoretically optimal mechanism assuming social preferences of the players exist. Their experiment shows that choices for a small, but significant number of subjects, are better explained by including other-regarding preferences. They also illustrate that if enough of such subjects are present, the optimal mechanism with strictly self-interested rational players is no longer optimal to a social planner. The article most closely related to ours is Engelmann and Grüner (2013). In their experiments, groups of five subjects select their preferred mechanism out of 5 potential voting mechanisms. The voting mechanisms differ in the amount of positive votes required for implementation of a common project. Individuals differ in their utility from project implementation (utility is equal to zero if it is not implemented). A completely self-interested and rational subject should always opt for the voting rule that requires only one (all five) vote(s) for implementation, if she has a positive (negative) valuation of implementation, while voting positively (negatively) in the implementation decision. However, the authors find that subjects often choose mechanisms that require two, three or four positive votes for implementation. These deviations could be explained by efficiency or pro-social concerns in the mechanism choice stage. The authors note that this implies possible efficiency gains in decision making by letting groups vote on voting rules, before they vote on issues. If individuals indeed decide upon mechanisms with more efficiency/equality related criteria then they use for implementation decisions, participation constraints are less binding.
3.3 Experimental design
We first describe the game subjects participated in and explain the mechanisms used. We then outline the treatments and describe the procedures of the experiment. The only difference between treatments is the set of potential private valuations for the public project. The underlying procedures, game and all other details of the experiment, e.g. number of rounds, group size, available mechanisms, etc. are identical across all treatments.
3.3.1 The game
Subjects interact in groups of three and each group faces the question whether or not to implement an indivisible public project. Non-implementation results in a zero payoff for all subjects. If the project is implemented each player receives a project payoff equal to her valuation. The private valuations are drawn independently from a known uniform distribution on a given set of four values that depend on the treatment. The distribution and its support are common knowledge and remain the same within a session.
Each of the 18 experimental rounds proceeds in two steps. First, subjects select a mechanism to make the group decision. Second, the group decides about the implementation of the public project through the chosen mechanism. In all treatments the same four mechanisms are used and in each round subjects chose between two of them. The mechanisms we consider are:
Mechanism I AGV mechanism
All group members report a valuation for the implementation of the project. They can only report valuations that are present in the type space. If the sum of reported valuations is larger than zero the project is implemented, otherwise the project is not implemented. Independent of project implementation, subjects pay or receive a transfer that depends on the vector of reported valuations.
Mechanism II Voting - Simple Majority (SM)
All group members vote for or against the project (no abstention). If two or more group members vote for implementation the project is implemented, otherwise the project is not implemented.
Mechanism III Non-implementation Status Quo (NSQ)
The public project is not implemented.
Mechanism IV Random implementation (RAND)
Whether the public project is implemented depends on the flip of a fair coin. If the result of the coin toss is heads, the project is implemented otherwise the project is not implemented. Therefore this mechanism has a 50% probability of implementation independent of subjects' valuations.
At the beginning of a round subjects are informed about the two available mechanisms. They cannot influence which mechanisms are available in a round, and the order of the comparisons is randomly altered between sessions. Each subject privately selects one of the two given mechanisms. After mechanism choices have been recorded, the computer randomly picks one group member as the dictator and the mechanism chosen by this random dictator is executed. All group members are informed of the selected mechanism, but they do not learn whose choice was selected nor what mechanism the other two subjects selected.
If the AGV or SM mechanism is selected, all group members state a valuation for the project (AGV) or vote on the implementation of the project (SM). If the NSQ or RAND mechanism is selected no further action by the subjects is required. The computer determines whether the project is implemented through the selected mechanism and payoffs are realized accordingly. The project payoff is equal to the private valuations if the project is implemented, otherwise the project payoffs are 0. In the AGV subjects additionally pay or receive transfers that depend on the reported valuations but not on project implementation.
The experiment proceeds in two parts. In the first part, the first twelve rounds, subjects learn their private valuation for the public project ad interim that is, after choosing their preferred mechanism but before the mechanism is played. In part two, the last six rounds, subjects are informed about their private valuation for the project at the start of each round and therefore are aware of their valuation when choosing a mechanism. Subjects are never informed about valuations of other subjects. Our subjects face all six possible binary mechanism choices twice in the ex-ante condition (rounds 1-12), before going to the ad-interim rounds (rounds 13-18). Since subjects make the mechanism choice both in an ex ante and an ad-interim setting, we can compare mechanism choices in both settings within subjects.
By design, the choices in the ex-ante rounds are not influenced by previous experiences in the ad-interim rounds. Since we consider the expected value calculations to be more demanding in the ex-ante rounds than in the ad-interim rounds, we chose a design that delivers the cleanest decisions in the ex-ante rounds as our main treatment. Because we did not observe any signs of consistency concerns or order effects in the choices made by our subjects, we did not conduct sessions with a reversed order.
The design is in many aspects similar to the two-step voting procedure studied by Engelmann and Grüner (2013), but there are three important differences. First, in our study subjects choose between two mechanisms rather than five. This clearly identifies the outside option. Second, we have four very different mechanisms, rather than five mechanisms from the class of simple voting rules. This allows us to make the same comparisons studied in the theoretical papers. We describe the mechanisms used and the reasons for selecting these four mechanism in the next section. Third, Engelmann and Grüner (2013) did not look at the effects of private information on the behavior of subjects. As we show in this paper, the presence of private information fundamentally changes the choices made by our subjects.
3.3.2 The four mechanisms
The four mechanisms are chosen because of their theoretical implications and relevance for group decision making. The AGV mechanism, or expected externality mechanism, is the theoretically optimal mechanism for decisions about indivisible public projects, like reforms. It is incentive compatible, ex-post budget balanced and induces efficient implementation. It was first suggested by Arrow (1979) and d'Aspremont and Gérard-Varet (1979) who also give a formal proof of its properties. The AGV is a direct revelation game in which all individuals send a message from the type space (they can behave like other types but not invent new types). Based on the reports the surplus generated by the project is calculated and the project is implemented if and only if the reported surplus is positive. If individuals report truthfully, this leads to efficient project implementation. To ensure truthful reports, the mechanism calls for transfers equal to the expected externality an individual generates for the others with her reported valuation. 5 This forces individuals to take the expected surplus generated for the other players into account, and makes all individuals residual claimants of a value equal to their expected societal surplus (their own surplus, plus the expected surplus generate for others). Consequently, they should send the message resulting in the highest expected social surplus. Since the mechanism leads to efficient implementation decisions if all subjects report truthfully, this induces truthful reporting of all types. Because it combines incentive compatibility with efficiency and budget balance, the AGV provides the theoretical benchmark to compare other mechanisms to. If it is impossible to switch from a given mechanism to the most efficient mechanism, the AGV, a switch to any other (less efficient) mechanism is unlikely.
The SM mechanism is chosen for two reasons. First, it is a common mechanism used in committee and small group decision making and therefore provides a natural benchmark for the empirical performance of the AGV. Second, the comparison between AGV and SM is the focus of the possibility theorem in Grüner and Koriyama (2012), such that we need it to reproduce the theoretical situation. The other two mechanisms, NSQ and RAND, are chosen to reproduce the comparisons studied in Myerson and Satterthwaite (1983), Schmitz (2002), and Segal and Whinston (2011).
3.3.3 Treatments
In all treatments a uniform distribution over a type space with four possible valuations for the public project is used. We have one treatment with a symmetric and two treatments with skewed distributions. The two skewed treatments differ from the symmetric treatment in the valuation of a single type. The type spaces and distributions used are shown in table 3.1
Table 3.1: Distribution of valuations for public project by treatment
Notes: Probabilities are the same in all treatments.
below.
Subjects draw a new private valuation for the project in each round and only participate in one treatment. The distribution of private valuations determines the expected payoff for the four mechanisms. In section 3.4 we provide the expected payoffs for all mechanisms in all three treatments and the tested theoretical predictions.
3.3.4 Procedures
The computerized experiments (zTree, Fischbacher (2007)) were conducted in the mLab of the University of Mannheim. Subjects were mostly undergraduate students from the University of Mannheim (recruitment through ORSEE, Greiner (2015)). Each session consisted of 18 rounds with random rematching among subjects. 6 All interactions were anonymous and subjects did not know who they were matched with in any round. To prevent income effects only one randomly selected round was paid in addition to a show up fee of 9e. Each round was equally likely to be chosen for payment and the selected round was identical for all subjects within a session. We conducted 9 sessions with 9 to 24 subjects, resulting in 150 participants (45 in the symmetric, 42 in the right skewed, 45 in the left-skewed treatment and 18 in a robustness check session we describe in section 3.5.5). 85 (57%) subjects were male and the average age of participants was 23 years.
The 18 rounds were split into three six-round blocks: two blocks of ex-ante rounds, rounds 1-12, followed by one block of ad-interim rounds, rounds 13-18. Subjects were aware of the existence of rounds 13-18 at the beginning of the experiment, but were only informed about the difference - the revelation of private valuations before the mechanism choice in the ad-interim rounds - after round 12. In all treatments, subjects made each of the six possible binary mechanism choices once in each block, yielding three choices for each comparison. The order of the pairwise comparisons was randomized within each block and between sessions. Additionally for each binary choice the order of the two mechanisms on the screens of the subjects was randomized between the three blocks. In the next section we state theoretical predictions for all treatments.
5 The translated instructions for the symmetric treatment, which include a table of the possible transfers, are in section C.1.3 in the appendix.
6 In sessions with 18 or more participants, subjects were split in two matching groups and could only meet subjects within their own matching group.
3.4 Theoretical predictions
To derive the theoretical predictions for our setting, we assume risk-neutrality and rational behavior in the second stage. Under these assumptions, the AGV is always efficient, and the predictions 2, 4 and 5 depend on this efficiency. For these results to hold without further qualification, the AGV should be ex-post efficient in all distributions, both in the ex ante and ad-interim rounds:
Prediction 1. The AGV is the most efficient of the four mechanisms.
In the ex-ante rounds a rational, risk-neutral agent should consider the Bayes-Nash equilibrium of each mechanism and select the mechanism with the highest expected payoff. The payoff-maximizing mechanism depends on the possible private valuations (and their probability distribution, which is common in all treatments) and therefore on the treatment.
Table 3.2 below displays the preference ordering of mechanisms in the ex-ante rounds for each treatment. 7 Because the AGV is the only efficient mechanism, it yields the largest expected payoff in all treatments. In the symmetric treatment a risk-neutral subject should prefer the SM mechanism over NSQ and RAND. For the comparisons between mechanisms with the same expected payoff, e.g. NSQ and RAND in the symmetric treatment, no prediction can be made for risk-neutral agents. However, a small amount of risk aversion would imply a strict preference for NSQ.
Table 3.2: Predicted mechanism choices (ex ante)
Notes: ≻ and ∼ indicate the preferences ordering of the four mechanisms for a risk-neutral subject. The ordering of mechanisms corresponds to their expected payoffs given the respective treatment.
The relative advantage of the AGV over the SM, measured in the gain in expected payoff, is much larger in the two skewed treatments than in the symmetric treatment. In the symmetric treatment the AGV yields a 6% higher expected payoff than the next best mechanism (SM). This difference is 16% in the right-skewed treatment and it is 81% in the left-skewed treatment. 8
7 The calculations for the AGV and for the SM mechanism assume truthful valuation reports (AGV) and sincere voting (SM), both in accordance with their respective Bayes-Nash equilibria. All calculations are in the appendix.
8 In the symmetric treatment the ex ante expected payoff from the AGV mechanism is 0.53125e, while the SM has an expected payoff of 0.5e, NSQ and RAND both yield an expected payoff of 0. In the rightskewed treatment the expected payoffs are 1.452125e for the AGV, 1.25e for SM, 1e for RAND and 0e for the NSQ mechanism. In the left-skewed treatment the expected value for AGV and SM is still positive,
By definition, ex ante all subjects are equal. Therefore it follows that the payoffmaximizing mechanism for each subject is also maximizing the expected group surplus. Without private information, payoff maximization should induce subjects to choose the most efficient mechanism, in which case the AGV and SM mechanisms should be preferred over NSQ and RAND. While the AGV should be preferred over SM if the Bayes-Nash equilibrium is played, if the equilibrium is not played the preferred mechanism can depend on the realized efficiency of the two mechanisms.
Prediction 2. Without private information, all individuals prefer the AGV and the SM over the NSQ and the RAND mechanism.
In the ad-interim rounds subjects should consider the expected value of each mechanisms given their valuation. Therefore, an individual with a negative valuation of the public project should choose the mechanism with the lowest implementation probability (given the strategies played in the next stage). From this observation the Myerson-Satterthwaite impossibility theorem directly follows. In our setting the NSQ has a zero probability of implementation, it therefore dominates all other options for individuals with a negative project valuation.
Prediction 3. With private information, individuals with a negative valuation prefer the NSQ over all other mechanisms.
Table 3.3 shows the order of the expected payoffs in the ad-interim rounds per treatment and valuation, again assuming the Bayes-Nash equilibrium is played.
Table 3.3: Predicted mechanism choices (ad interim)
Notes: ≻ and ∼ indicate the preferences ordering of the four mechanisms for a risk-neutral subject. The ordering of mechanisms corresponds to their expected payoffs given the respective treatment and valuation.
0.453125e (AGV) and 0.25e (SM), while the expected payoff for the NSQ mechanism remains at 0 and actually is negative, -1e, for RAND.
Schmitz (2002) and Segal and Whinston (2011) show that by replacing the safe outside option with riskier ones, the impossibility problem of prediction 3 can be overcome. In our experiment this translates to the prediction that the AGV should be preferred over RAND, even with private information. Similarly, since with a three-person group and the chosen distributions the SM mechanism is much more efficient than the RAND mechanism, all subjects should choose the SM over the RAND mechanism.
Prediction 4. With private information
(i) all individuals prefer the AGV over the RAND mechanism and
(ii) all individuals prefer the SM over the RAND mechanism.
Grüner and Koriyama (2012) demonstrate that individuals can prefer the AGV over the SM, even with a negative valuation, as long as some conditions are met. Mainly because we have odd numbered groups, these conditions do not always hold in our setting. However, their results translate to the following qualified prediction:
Prediction 5. In the symmetric treatment
(i) subjects with a private valuation of -3 or +3 strictly prefer the AGV over the SM mechanism,
(ii) subjects with a private valuation of -1 or +1 are indifferent between the AGV and the SM.
In the skewed treatments
(iii) subjects with a private valuation of -3 or -1 (right-skewed treatment) and 3 or 1 (leftskewed treatment), strictly prefer the SM over the AGV,
(iv) while all other subjects prefer the AGV over the SM mechanism.
Additionally we test whether subjects prefer the theoretical optimal AGV mechanism over other, better known mechanisms. If subjects' choices in the ex-ante rounds are sensitive to expected payoff differences, the AGV mechanism should be chosen more often in the skewed treatments than in the symmetric treatment. Furthermore, the AGV transfers in the right-skewed treatment are usually paid by subjects reporting extremely high valuations. This "taxing the winner" property could be seen as fair by subjects, since an individual benefiting strongly from project implementation has to compensate other group members. In the left-skewed treatment this "tax" is levied from the loser(s). If such fairness concerns play a role in mechanism selection, the AGV should be more desirable in the right skewed than the left-skewed treatment. However, we do not believe that the mechanism choices in the ad-interim rounds will be affected, since the known private valuation for the project should make the own payoff consequences of the mechanism choice more focal and therefore fairness concerns might be less relevant.
Prediction 6. The AGV mechanism is chosen more often
(i) in the left and right-skewed treatment than in the symmetric treatment due to efficiency differences,
(ii) in the right-skewed treatment than in the left-skewed treatment, since subjects prefer "winners" rather than "losers" of the project implementation to pay transfers.
(iii) Both effects are more pronounced in the ex-ante rounds then in the ad-interim rounds.
3.5 Results
We present the results in the same order as the predictions, starting with the realized efficiency of the AGV and the SM mechanisms before analyzing subjects' ex-ante choices in more detail. Next we present our findings on the Myerson-Satterthwaite impossibility theorem and then discuss the ad-interim mechanism choices before concluding with an analysis of subjects' behavior in stage two of the AGV (value reports) and the SM mechanism (voting).
3.5.1 Realized surplus
Whether the AGV is actually more efficient than the other mechanisms depends on subjects' behavior and especially on the question whether they truthfully report their type (AGV) and vote sincerely (SM mechanism). Theoretically the AGV is incentive compatible, such that truthful reporting should result in equilibrium. However, we cannot assume perfectly rational expected-value maximization. If subjects misreport their valuation it is not clear whether the AGV actually generates the largest surplus.
We do not use the actual surplus generated in the lab as our measure of efficiency, since this measure is strongly influenced by the realization of private valuations as well as the mechanism choices by the random dictator. Instead, we use the observed distribution of reports/votes made by subjects with a specific type in a treatment, as the behavioral strategy for that type in that treatment. We calculate project implementation probabilities for all permutations of the type vector given these strategies. The displayed surplus (in e) is the expected value of the group surplus in the mechanisms given these strategies and the probability that a particular permutation of the type vector occurs. It is therefore the surplus that would have realized if all possible combinations of private valuations occurred with their expected probabilities and all individuals with the same type used the observed reporting/voting strategy.
Table 3.4 below shows the Bayes-Nash equilibrium surplus and the realized group surplus for the AGV or SM mechanisms in the ex-ante rounds in all treatments. 9 The theoretical surplus of each mechanism is reported in columns 2 (AGV) and 5 (SM), the realized surplus
9 We concentrate on the ex-ante results, because we have more observations in these rounds than in the ad-interim rounds, which makes the results more reliable. Although they are noisier, results for the ad-interim rounds are qualitatively similar.
in columns 3 and 6, and columns 4 and 7 show the absolute (and relative) surplus loss compared to the theoretically benchmark.
Table 3.4: Theoretical and realized group surplus with AGV and SM (ex ante)
The results in table 3.4 clearly show that the AGV generates a higher expected surplus than the SM mechanism in theory. However, the table also illustrates that neither mechanism reaches its full theoretical efficiency level. In the symmetric treatment the surplus loss of the AGV is so large that the efficiency ordering is reversed. The AGV mechanism only realizes an expected group surplus of 1.18, while SM reaches a surplus of 1.34. In the two skewed treatments the AGV is more efficient than the SM mechanism, but the advantage is smaller than predicted.
These results only partially support prediction 1. Both the AGV and the SM do not perform as well as predicted. The efficiency loss in the AGV is larger than in SM in all three treatments. The AGV is, ex ante, the most efficient mechanism only in the two skewed treatments. In the symmetric treatment the SM mechanism is theoretically very close to optimal, and it slightly outperforms the AGV in terms of efficiency in this setting. While we discuss the reasons for the lower surplus of the AGV mechanism in detail at the end of the results section, it is important to note that the valuation reports suggest that the loss is unlikely to be caused by a small number of confused subjects. Something more systematic seems to be going on.
3.5.2 Ex-ante choices
In this section we analyze subjects' mechanism choices in the ex-ante rounds 1-12. We concentrate on the results of the symmetric treatment. Since most results are not qualitatively different among treatments, we only discuss comparisons between mechanisms in the skewed treatments that are particularly interesting.
The results of all six binary comparisons in the symmetric treatment are shown by the histograms in figure 3.1. In five cases there is a clear majority for one mechanism: AGV and SM are clearly preferred to the NSQ and the RAND mechanism and SM is generally chosen over AGV. 10 There is no clear preference in the choice between the NSQ and RAND mechanism. Subjects are almost evenly split between these mechanisms and a binomial test
10 Binomial tests confirm a significant difference from a 50:50 split for all comparisons (p-values < 0.01).
does not reject a 50:50 split (p-value 0.46). This indifference is not surprising given the identical expected payoff from both mechanisms. The split between RAND and NSQ seems to indicate risk neutrality of our subjects.
Chosen mechanism
Figure 3.1: Ex-ante binary choices (symmetric treatment)
If we compare the predictions stated in table 3.2 with the results in figure 3.1, we see only one deviation. Only in the choice between AGV and SM the majority of subjects does not prefer the mechanism with the larger expected payoff in theory. However, as we have shown above, within the symmetric treatment the SM mechanism generates more surplus then the AGV mechanism. Therefore, a majority of subjects prefers the mechanism with the largest expected payoff in all six comparisons. 11
Table 3.5 below shows for all comparisons and treatments the mechanism selected by a majority of subjects in the ex-ante rounds. The prediction that subjects select the most efficient mechanism corresponds to completely unanimous choices in every comparison. While this is not the case, in many comparisons one mechanism is preferred by a large majority. Although the predictions concentrate on individual choices, we present the median choice in this table. Since we are dealing with binary choices and about 80% of the mechanism rankings obtained from individual binary comparisons within a block of 6 rounds satisfy strict transitivity, this aggregation is consistent with the preferences of our 'average' subject.
The modal stated preference goes in the predicted direction for all, but two compar-
11 Which of the two mechanisms is listed first seems to be without effect. We vary the order of comparisons between the two rounds of comparisons and between sessions, but there are no signs of order effects in any direction. The detailed results for all comparisons in the ex-ante rounds are in the appendix in table C.2.
isons. In the symmetric and the right-skewed treatments the AGV is not preferred to the SM mechanism.
Table 3.5: Mechanisms chosen by a majority of subjects in the ex-ante rounds
Notes: The mechanism in each cell was chosen by the majority of subjects in the respective treatment. All results are aggregated over both comparisons (rounds 1-6 and 7-12). The number of observations for the three treatments are: 90 (symmetric), 84 (right skewed) and 90 (left skewed). Binomial tests reject a 50:50 split at the 1%-level for all but two comparisons: NSQ vs. RAND in the symmetric treatment and AGV vs. SM in the right-skewed treatment. A * indicates that the majority choice is not in line with the theoretical efficiency prediction, ** indicates that the choice is in line with realized but not with theoretical efficiency.
We provide the results for the comparison between the AGV and the SM in all treatments in figure 3.2 below. In the symmetric (64%) and right-skewed treatment (58%) a majority chose the SM over the AGV mechanism. This ordering flips around for the left-skewed treatment, in which 70% prefer the AGV. This increase is in line with the increase of the relative advantage of the AGV over the SM mechanism. 12
Comparing subjects' choices with the realized surplus, shows that a majority chooses the mechanism with the highest realized surplus in all comparisons, except in the rightskewed treatment for the comparison between AGV and SM. Therefore, we can conclude that the average mechanism choice of subjects is almost perfectly in line with the ordering predicted by realized efficiency. Since the theoretical predictions about efficiency has almost the same order as the realized efficiency, subjects generally prefer the theoretically most
12 More subjects prefer the AGV over the SM mechanism in the left-skewed treatment than in the two other treatments (Mann-Whitney-U (MWU) tests, p-values < 0.01) while the difference is not significant between the symmetric and the right-skewed treatment (MWU test, p-value 0.41). For the symmetric and left-skewed treatments a binomial test rejects a 50:50 split (p-values < 0.01). The 50:50 split cannot be rejected in the right-skewed treatment (p-value 0.16).
efficient mechanism in the ex-ante rounds, confirming prediction 2. Note that this means we can already reject all parts of prediction 6. Our subjects do not appear to prefer taxing winners over taxing losers, not even in the ex-ante rounds. Choices seem to follow realized expected value in the lab, rather than any form of other-regarding preferences.
3.5.3 Impossibility results
The Myerson-Satterthwaite theorem predicts that no (efficient) mechanism is unanimously preferred over the non-implementation status quo. Figure 3.3 shows all choices made between NSQ and the other mechanisms in the symmetric treatment. 13 In the top (bottom) row the revealed preferences for the ex-ante (ad-interim) comparisons are shown. For each decision the figure first shows the choices for subjects with a positive and then for those with a negative valuation. Since subjects do not know their valuation when making the mechanism choice in the ex-ante rounds (top row), the choices of the subjects with positive and negative valuations are statistically almost indistinguishable. 14
The expected choice reversal can be seen by comparing the graphs in each column. The change in choices is obvious in all three comparisons: The AGV and SM are preferred over the NSQ in the ex-ante rounds (top, columns one to four) and the RAND and NSQ mechanism are about equally likely to be chosen by all subjects (top, columns five and six), these choices reverse for virtually all subjects with a negative valuation in the ad-interim rounds. In our experiment subjects with a negative valuation prefer the NSQ over the other mechanism (bottom, columns two, four and six). 15 These results confirm prediction 3: many individuals would prefer not to participate in the efficient group choice mechanism, making unanimous agreement virtually impossible.
The effect of private information can be seen very clearly in the comparison between the RAND and NSQ mechanism (columns five and six). With a symmetric value distribution both mechanisms have a zero expected payoff ex ante and the choices of subjects seem to indicate this "indifference". With private information, however, subjects' revealed preferences are almost perfectly correlated with valuations: NSQ is preferred by subjects with a negative valuation and RAND by those with a positive valuation. Even complete randomness is acceptable, as long as it increases own income (at least in the lab). Unlike the behavior observed by Engelmann and Grüner (2013), in our setting social or efficiency concerns seem
13 Because we did not find significant differences between the first and second block of ex-ante mechanism choices, we pool these choices in the analysis. Results for the other treatments are very similar.
15 MWU tests show that significantly more subjects with a negative valuation chose the NSQ mechanism in all three comparisons in the ad interim than in the ex-ante rounds (p-values < 0.01).
14 Of the 9 comparisons (three per treatment) only in the right-skewed treatment for the choice between the NSQ and RAND we find a statistically different mean choice between subjects with a positive and subjects with a negative valuation (p-value of 0.045, MWU test). Since subjects were unaware of their valuation when they made the choice, this difference has to be random. All other comparisons do not yield a significant difference (p-values > 0.10, MWU).
ex ante
3.5.4 Ad-interim choices
We now turn to the results for the other ad-interim comparisons. Prediction 4 states that all subjects should prefer the AGV and the SM over the RAND mechanism, regardless of their valuation. Our results are qualitatively equivalent for the binary comparisons of the AGV vs. the RAND mechanism and the SM vs. the RAND mechanism. In the interest of space we only report the former in figure 3.4. 16 It shows that at the aggregate level the AGV is clearly preferred over the RAND mechanism. As was predicted by Schmitz (2002) and Segal and Whinston (2011), the Myerson-Satterthwaite impossibility theorem can be overcome if the outside option is a risky rather than a save status quo. 17
The claim in prediction 4 is actually even stronger than a preference for the AGV over RAND on the aggregate level, since it predicts a preference for the AGV by all types. This stronger prediction is also confirmed by our data, with one minor exception. In the leftskewed treatment the AGV and RAND mechanism are equally often preferred by individuals with type +3: exactly 50% chose the AGV. In all other treatments and for all other valuations,
16 We show the results of all ad-interim choices separately for treatments and private valuations in table C.3 in the appendix.
17 Binomial tests reject an equal distribution in all treatments (p-values < 0.01).
the AGV receives at least 60% of all votes and in most cases it is chosen by a larger margin. 18 Our results therefore clearly confirm prediction 4.
The revealed preferences of subjects for the ad-interim choice between the AGV and the SM mechanism are shown in figure 3.5 per treatment and type. Although the statements made in prediction 5 are the most sensitive to the small number of observations in some cells, the comparative statics are largely borne out by the data. In the symmetric treatment, preference for the AGV is more pronounced for the types -3 and 3 then for the types -1 and 1. Similarly, the preference for the AGV seems to increase with the valuation in the right-skewed treatment, and decreases with valuation in the left-skewed treatment. The only exception being the -3 type in the right-skewed treatment.
While the AGV mechanism is preferred by all subjects with the most extreme private valuations (+7 and -7), subjects with a valuation of +/-1 are almost evenly split between the mechanisms. The clear preference for the AGV of subjects with an extreme valuation is not only in line with the prediction, it is also an indication that subjects understood that in the AGV mechanism an extreme valuation report is equivalent to certain implementation (+7), respectively a veto against implementation (-7). Since subjects in the skewed treatments like the AGV mechanism less than predicted, prediction 5 is not fully confirmed.
The largest deviations from the prediction seems to stem from the fact that the AGV is not always as efficient in the lab as predicted by theory. This was caused by subjects' second stage reporting (AGV) and voting (SM) strategies, which are analyzed in the next section.
18 While the results appear clearly in the appropriate graphs, formal tests cannot confirm the results at the common significance levels for the different private valuations, since the low number of cases (8-15 per valuation and treatment) results in relatively high p-values even if 60% or more selected the AGV mechanism.
symmetric
3.5.5 Voting and reporting behavior
In section 3.5.1 we showed that both the SM and AGV mechanism perform below theoretical expectations. In this section we use the individual reports (AGV) and votes (SM) to analyze the reasons for this efficiency loss.
In the AGV truthful reporting forms a Bayes-Nash equilibrium. To make sure that our subjects were aware of this, our subjects were told that if the other subjects report truthfully, it maximizes their expected payoff to report their true valuation as well. However, there is no guarantee that subjects understand and act in accordance with those statements, let alone that they believe others do. Table 3.6 shows three tables, one for each treatment, with the reported valuations as a function of private valuations for the ex-ante rounds in which the AGV mechanism was used.
If all subjects reported their true valuation all entries should be on the main diagonal of the tables. However, as all the off-diagonal elements show, many subjects misreport. We consider two types of false reports separately. Over- or under-reporting is defined as sending a report that is more (or less) extreme than the subjects' true valuation but has the same sign. This kind of reporting can be caused by the desire to ensure (non-)implementation or avoid paying transfers. Misreporting the sign of the valuation, e.g. reporting +1 with a valuation of -1, is of a different caliber. There is no reason to misreport the sign of the valuation if a subject is maximizing her expected payoff. A subject with a negative valuation should not want the project to be implemented. By reporting a positive valuation she increases the probability of implementation, which can never be optimal. Remember that no implementation results
Table 3.6: AGV reports (ex ante)
(a) symmetric treatment
(b) right-skewed treatment
(c) left-skewed treatment
| true valuations | reported valuations 3 1 −1 −7 |
|---|---|
| 3 1 −1 −7 | 35 10 1 0 23 36 0 0 1 5 35 14 4 3 2 53 |
| Total | 63 54 38 67 |
in a zero payoff from the project for all group members, independently of the valuation. The same argument, with reversed signs, holds for positive valuations. Therefore, while over- or under-reporting can be rationalized (at least to some extent) by small mistakes, misreporting the sign of the valuation cannot.
Table 3.6b shows that the reports that involve an incorrect sign in the right-skewed treatment are concentrated on subjects with a negative valuation. Only one of the false reports of subjects with a positive valuation misreports the sign. In striking contrast, 22 (43%) of subjects' reports with a negative valuation include an incorrect sign. This pattern is not limited to the right-skewed treatment, see tables 3.6a and 3.6c, or the ex-ante rounds (not reported). This pattern is not caused by a few individuals. In all three treatments about 30% of reports differ from true valuations and 25% of subjects incorrectly report the sign of their valuation at least once. The 30% misreported values are spread over a large share of the subject population, such that we believe that confusion is not the main reason for the reports.
These averages are also quite stable over rounds. E.g. conditioning on the first 6, first 12 or last 6 periods (ad-interim choices), yields similar percentages of misreports. Learning either does not happen, or again, the underlying behavior is not driven by confusion. However, there does appear to be a significant difference between subjects who select the AGV and those who favor the alternative mechanism. The first group is statistically less likely to misreport the sign of their valuation (Chi-Square test, p-value < 0.01, using AGV reports for all ex-ante rounds). However, sign misreporting takes place in both groups.
Given these results, we ran an additional session that eliminates most reasons for misreporting as a robustness check. Again, the only difference between this treatment and the others is the type space. Private valuations were drawn from the set {-3 e, -2 e, -1 e, 7 e}.
These valuations result in identical transfers and implementation probabilities for all negative reports. Therefore under- or over-reporting has no effect on payoffs. Furthermore, all valuations had a unique absolute value, decreasing the probabilities of accidentally selecting -1 rather than +1 and vice versa. The AGV reports in the ex-ante rounds of this session are shown in table 3.7.
While we still see reports with an incorrect sign, these are less frequent than could be expected if the subjects played a similar strategy as in the other treatments. Some of the misreported signs are likely to have been mistakes. In this session all reports of a negative value have the same effect on the implementation probability of the project and result in identical transfers. The fraction of over-reporting subjects with a negative valuation seems to indicate subjects understood this. Given these observations and the fact that in all sessions private valuations are random, change from round to round, and the experimental screens showed the sign of the valuation (both the + and the - sign), we have no explanation for the pattern we find.
Table 3.7: AGV reports (ex ante) in the robustness session
| true valuations | reported valuations 7 −1 −2 −3 |
|---|---|
| 7 −1 −2 −3 | 19 1 1 0 1 9 4 11 1 0 8 8 0 0 0 15 |
| Total | 21 10 13 34 |
Notes: As in the other treatments the probability of each value is 25%.
In order to approximate the loss in expected group surplus that is caused by the two different types of false reports we repeated the calculations of table 3.4 after excluding overand under-reporting, and misreported signs respectively. Table 3.8 shows both the original (columns 4-5) and the adjusted results. Comparing the adjusted efficiency without misreported signs (columns 6-7) with the adjusted efficiency without under- and over-reporting (columns 8-9) shows that most efficiency is lost through the falsely reported signs. Depending on the treatment between 11% (right-skewed treatment) and 23% (symmetric treatment) of the theoretical group surplus is lost due to valuation reports with an incorrect sign. 19
Unlike the reports in the AGV mechanism, the voting behavior of subjects is very close to theoretical predictions and almost perfectly rational. For all treatments and private valuations, subjects vote according to their valuations in 89% to 100% of the rounds. There is no
19 The sum of the surplus from both types of false reports does not sum up to the difference between the theoretical and realized group surplus, since both types of misreports can occur together and thus interact in the realization of actual efficiency. The total surplus loss due to the misreporting can thus be higher or lower than sum of the separate calculations.
Table 3.8: Group surplus loss in the AGV under different types of false reports (ex ante)
Notes: The columns for Effect of over- / under-reports remove all reports with a false sign from the behavioral strategy of the subjects. Similarly, in the columns Effect of sign misreports all reports that over- or under-report the true value are not considered. The lost columns state the absolute (relative) group surplus loss with regard to the theoretical group surplus under truthful reporting.
pattern of incorrect votes in relation to the sign of the valuation. Subjects are about equally unlikely to vote against their private valuations for positive and negative valuations.
The different rates of rational reporting/voting drive the relatively small realized efficiency advantage of the AGV over the SM mechanism. Especially the incorrectly reported signs result in large efficiency losses of the AGV. The higher percentage of misreports in the AGV compared to the non-sincere votes in the SM mechanism can be partially explained by larger familiarity of subjects with the SM. However, the systematic difference in the reporting behavior of individuals with positive and negative types is unlikely to be explained by mistakes alone. Up to this point we have no explanation for this difference.
3.6 Conclusion
This paper presents the results of a first experimental study on the effects of private information and outside options on mechanism selections in a group decision experiment. Our results on the ex-ante preferences in all treatments demonstrate that subjects are aware of the efficiency differences between the mechanisms. In almost all cases a clear majority of subjects selects the mechanism that is more efficient in the lab. Not too surprisingly, if the difference in efficiency between two mechanisms is small, results are less clear.
The behavior in the ad-interim rounds also largely confirms related theoretical predictions. As the Myerson-Satterthwaite impossibility theorem predicts, the same subjects who prefer the efficient AGV mechanism ex ante, suddenly opt for the complete inertia of the non-implementation status quo after learning their private valuation. Similarly, most subjects prefer the AGV over flipping a coin (RAND) even after learning their private valuation, as predicted by Schmitz (2002) and Segal and Whinston (2011). Our data is less clear about the predictions made by Grüner and Koriyama (2012) regarding the choice between AGV and SM. Although the overall pattern seems to conform to the theoretical predictions, efficiency differences between these mechanisms are small and clear majorities for either AGV or SM often do not exists.
These results highlight the importance of participation constraints in the design of institutions. In many situations it is impossible to set an efficient decision rule ex ante. Also it might not be possible to establish an efficient mechanism through a decentralized and completely voluntary procedure ad interim. This combined impossibility touches upon one of the most fundamental questions in mechanism design, political economy, and more generally political philosophy. Since participation constraints already create problems in the small groups in our experiment, the difficulties of negotiating a public project on the scale of a nation would seem close to unsurmountable if unanimity (or completely voluntary participation by all parties) is required. A group that is stuck in an inefficient mechanism might require an outside influence or coercive power to break away from the status quo. Centralized organizations with an amount of coercive power, like the state or the company, are able to force participation and thus avoid these problems. In doing so, these organizations allow participants to bundle individual projects and reforms and take them away from purely decentralized mechanisms like open markets. Often the gains in efficiency from extra investment in common projects are large enough to compensate participants for their involvement in projects that are not individually rational to them. In this sense, our findings give one reason for the existence of states. Although a centralized state might not be as efficient in dealing with incentive constraints as the market, it does make dealing with the participation constraints on individual projects a lot easier.
Because our subjects play all mechanisms, we can compare the relative efficiency of the AGV and SM mechanism on the same group of subjects. The SM mechanism is almost as efficient in the lab as theoretical calculations with rational self-interested agents predict. The AGV is perfectly efficient in theory, but loses a lot of its efficiency in practice due to false reports. In our experimental results we find a puzzling pattern in the reporting strategy used by subjects in the AGV. While both subjects with positive and negative valuations sometimes over- or under-report their valuation, only subjects with a negative valuation systematically misreport the sign of their valuation. These valuation reports with an incorrect sign account for most of the efficiency loss of the AGV in our experiment. Interestingly, this pattern is present in all treatments and does not seem to be driven by the behavior of a few individuals. Subjects in our experiment gather some experience in the AGV, but not too much. Depending on the random allocation of private valuations, a subject might never experience the real advantage of the AGV over the much more common SM mechanism. In order to have a "fair" comparison, it might be necessary to provide subjects with more opportunities to learn how the AGV actually works and to demonstrate why the mechanism is more efficient. Given that we do not familiarize our subjects with the AGV in this manner, it is actually quite remarkable how often the AGV is chosen. Still our findings indicate that there is room for further research in the area of efficient mechanism implementation.
Our setup allows us to vary individual participation constraints and to apply strong within-subject tests of theoretical predictions. The crispness of the results obtained is a clear indication of the strength of this methodological setup. We believe the method by which participation constraints are implemented, measured and varied in this experiment could be fruitfully applied to experimentally investigate other questions surrounding participation constraints.
Appendix Chapter 3
C.1 Appendix
C.1.1 Derivation of predictions
Predictions 1 and 2
Note that all mechanisms generate as much surplus as is generated by the common investment, as the rest of the (experimental) budget is ex-post balanced. From the four mechanisms, the AGV mechanism is the only mechanism that implements (in Bayes-Nash equilibrium) the project if and only if the generated surplus is larger than 0. The other mechanisms all have an efficiency loss from wrong implementation, or wrong non-implementations and therefore are less efficient in expectation. These differences in efficiency imply prediction 1 and the preference of individuals without private information for the AGV over NSQ and RAND mechanism in prediction 2. The SM mechanism implements if and only if at least two people vote in favor. If we assume that individuals vote in favor if they have a positive valuation and against if it they have a negative valuation, we can see that when the loss of efficiency in implementation occurs. In the symmetric treatment this happens in two cases (type vectors {-1,-1,3} and {1,1,-3}), both of which cost 1e and occur with a probability of 0.046875, such that the expected loss of the SM mechanism relative to the efficient outcome is 0.09e, or 5.88% of the maximum efficiency.
In the right-skewed treatment with the +7 value there are four cases of inefficient implementation, type vectors {-3,-3,7}, {-3,-1,7}, {-3,1,1} and {-1,-1,7}, occurring with probabilities 0.046875, 0.09375, 0.046875 and 0.046875 respectively. The expected loss is 0.61e, or 13.98% of maximum efficiency. In the left-skewed treatment with the -7 value there are four cases of inefficient implementation, type vectors {1,1,-7}, {3,1,-7}, {3,-1-,1} and {3,3,-7}, occurring with probabilities 0.046875, 0.09375, 0.046875 and 0.046875 respectively. The expected loss is also 0.61e, but this is 44.82% of maximum efficiency in this setting, since the maximum efficiency delivers a much lower surplus.
The RAND mechanism has a zero expected surplus for the symmetric treatment, a -1 expected surplus in the left-skewed treatment (-7), and a +1 expected surplus in the rightskewed treatment (+7). The loss of efficiency of the NSQ is a 100% always. Since the efficiency loss in the SM mechanism is always lower than the loss in the NSQ or RAND mechanism, this proves prediction 2.
Prediction 3
With known private values vi, individuals can calculate their expected utility as a function of mechanism Γ:
With Y = 1 denoting implementation and M ∈ {NSQ, RAND, AGV, SM}. With a negative private value, vi, the best choice is the one with lowest probability of implementation. Since Pr(Y=1 | Γ = NSQ) = 0, the NSQ (weakly) dominates all other mechanisms for these individuals.
Predictions 4 and 5
For the AGV assume that individuals report truthfully in the second stage when playing AGV, and similarly for SM vote in favor in case of positive valuation and against otherwise. Each individual should then choose the mechanism that maximizes her expected payoff, which for SM is as before:
In the AGV the expected payoff is additionally influenced by the expected transfer each individual has to pay. Since the individuals possess private information, this can be either positive or negative. It is straightforward, albeit somewhat tedious, to calculate the expected utility of each type for each of the three mechanisms in all treatments. The results are displayed in table C.1 below.
Table C.1: Expected utility by type and mechanism
Like it was shown more generally by Segal and Whinston (2014), no single type prefers to flip a coin over playing the AGV (or SM in this case). For the predictions of Grüner and Koriyama (2012) we have a slightly more qualified result. In the skewed treatments the types -3 and 3 prefer the SM mechanism while the other types {-7, -1, 1, 7} prefer the AGV mechanism. In the symmetric treatment the types -1 and 1 are indifferent, while the types -3 and 3 prefer AGV.
C.1.2 Further results - All choices
In table C.2 the results for all binary comparisons in the ex-ante rounds (round 1: 1-6, round 2: 7-12) are shown. The mechanism stated in each cell is the mechanism chosen by a majority of subjects for the binary comparison in this column. E.g. the 69% in the row 'symmetric treatment, round 1' in the third column (AGV vs. SM) mean that 69% of subjects chose the SM over the AGV mechanism (consequently 31% chose the AGV mechanism) in the first comparison of these mechanisms.
Table C.2: Percentage of subjects who chose each mechanism in the ex-ante rounds
Notes: The mechanism named in each cell was chosen by the majority of subjects (percentage). Each subject made a choice in each round, therefore the number of subjects for the three treatments are: 45 (symmetric), 42 (right skewed) and 45 (left skewed).
In table C.3 the mechanism that was chosen by the majority of subjects for each binary comparison in the ad-interim round of all treatments is listed. The table reports the proportions of subjects for each valuation, e.g. the cell in the row 'symmetric, 3' and second column (AGV vs. SM) states that 11 of 13 subjects with a valuation of +3 chose the AGV mechanism over the SM mechanism (consequently 2 of 13 subjects selected the SM mechanism).
Table C.3: Proportion of subjects who chose each mechanism in the ad-interim rounds
Notes: The mechanism named in each cell was chosen by the majority of subjects with the specified valuation (number of subjects who chose the stated mechanism/total number of subjects with given valuation). Each subject makes each binary choice one time with a randomly drawn valuation. For each treatment the sum of choices of all four valuations within a binary comparison is the number of subjects: 45 in symmetric, 42 in right skewed and 45 in left-skewed treatment.
C.1.3 Translated instructions
This is the translation of the original instructions used for treatment one (symmetric distribution). The instructions for other treatments only differ with respect to the described distribution and therefore the used examples and tables. All emphasizes are in the original. The original instructions for all treatments are available from the authors upon request.
Instructions
Thank you for taking part in this experiment. The amount of money you can earn in this experiment depends on your choices and the choices of the other participants. It is therefore important that you understand the instructions. Please do not communicate with the other participants during the experiment. If you have any questions after reading the instructions, please raise your hand. We will then clarify your question.
All the information you provide will be treated anonymously.
You will begin the experiment with a starting budget of 9e. This amount can be increased or decreased depending on all participants' choices in one of the 18 rounds of this experiment. In each round each participant receives a payment. This payment can be zero, positive or negative. At the end of the 18 rounds, one round will be randomly determined for payment. The payment of the selected round will be added to or subtracted from your starting budget. The sum of your starting budget and the payment of the selected round yields your final payoff. In each round you should act as if the round was selected for payment. You will receive your final payoff in cash at the end of the experiment. The payments are chosen in such a way that you cannot make losses under any circumstances. Each participant can earn between 5.75e and 12.25e. Your payment will be treated anonymously.
The entire experiment is organized in two phases. Phase I consists of rounds 1-12 and phase II of rounds 13-18. You will now receive information about phase I. We will explain any changes in phase II after round 12, but before the start of round 13 (the start of phase II).
Thank you for participating.
STRUCTURE OF THE EXPERIMENT
In each round of the experiment you will be part of a group with 3 members (you and two randomly selected other participants). Each group has the possibility to conduct a project, called project A. If you do not conduct the project each group member receives a payoff of 0e for this round. If your group conducts project A, then each group member receives his or her private valuation for the project as payment for this round. The private valuation of project A can be different for each member of your group. If your group decides not to conduct project A, all group members receive a payoff of zero. The valuation for project A is newly determined each round and each participant receives a new private valuation in each
round. Groups are newly formed in each of the 12 rounds.
The experiment is computer based. Therefore individual participants cannot identify the other group members. You will not know which other participants are in your group in which round, neither during nor after the experiment.
One round consists of two parts. In the first part each group choses a decision rule which is used to determine whether project A is implemented or not. In the second part your group uses the selected rule to determine whether project A is implemented or not. You will be informed about your private valuation for project A after part one of a round. We will now describe the two different parts of each round as well as the possible decision rules in detail.
PART ONE
In part one you have the choice between two different decision rules, which will be used in part two to determine whether project A is implemented or not. The two available rules change from round to round. Each of the three group members suggests one of the two available rules for part two of this round. The computer randomly picks one of these suggestions as group rule. This decision rule determines how in part two the question whether project A is implemented or not is resolved. The different rules are explained below. In part one you do not know whose rule suggestions will be the group decision rule. Your suggestion can be selected, but also the suggestion of another group member. Each group member has the same chance in each round for his or her suggestion to be selected. Non selected suggestions will not be made known to the other group members. Please note that the decision rule is important, because dependent on the decision rule the implementation of project A is easier or more difficult.
PART TWO
In part two the selected decision rule is used to determine whether project A is implemented or not. The group decision arises directly from the decisions of all group members in part two. The decision is announced and each participant is informed about his or her payment in this round.
VALUATIONS
In case project A is implemented all group members receive a payment dependent on their project valuations. This means, if your valuation for project A is positive, you benefit from the implementation of project A, and when your valuation for project A is negative, then you have to pay if the project is implemented. Your valuation for project A is randomly given to you in each round anew. You learn your valuation after part one. Therefore you do not know your valuation when you decide between the different decision rules in part one, but you know your valuation in part two, when you decide about the implementation of project A according to the selected decision rule.
Please note that you will know your exact valuation for the project, but not the valuations of the other group members. The valuation of each group member can be -3e, -1e, +1e or +3e. All values are equally likely. The values are independently distributed, such that your valuation in one round does not allow any conclusions for the valuation of other members in your group. Furthermore your valuations are independent between rounds. Therefore your valuation in one round does not depend on previous or future valuations.
Example: Assume your valuation in round 1 is -1e and +3e in round 2. If your group decides to implement project A in both rounds, then your payment (not necessarily your final profit) in these rounds is your valuation. If round 1 would be randomly selected for payment, then your final profit in the experiment would be 8e (=9e 1e). If round 2 would be selected your final profit would be 12e (= 9e+3e).
If your group does not implement project A, each group member receives 0e for this round, meaning in this round you neither gain nor lose anything, independently of your valuation for project A. Therefore if such a round is selected for payment, your final profit is your starting budget of 9e.
Here is the structure of the experiment in a short overview:
POSSIBLE DECISION RULES
In part one each group member has the choice between two decision rules. The rules are identical for all group members in each round. The following four decision rules (I.-IV.) are possible:
Rule I. Whether project A is implemented or not depends on the stated valuations of all group members. With this decision rule each group member states his or her valuation for the project in part two of the round. If the sum of all stated valuations is larger than 0, then project A is implemented. If the sum is smaller, the project is not implemented. Each participant has to state a possible valuation (-3e, -1e, +1e or +3e). He can state his true valuation, but also any other possible valuation. The calculation of the sum only depends on the three stated valuations. The true valuations are not taken into account.
With this decision rule there are transfer payments between the group members additionally to the payments from an implementation of project A. The transfer payments depend on the stated valuation and the stated valuations of the other group members. You can see which transfers you receive / pay dependent on the stated valuations in table 1 below. Please note: A transfer payment is independent of your true valuation and the implementation of project A. You can also receive or pay a transfer if project A is not implemented. Transfer payments only exist in this decision rule.
Transfers are chosen in such a way that your expected payoff is maximized if you state your true valuation and also the other group members state their true valuation. The table states the transfers for all possible situations. The first column contains your statement and the respective columns to the right list the transfers dependent on the statements of the other group members.
| | 3, 3 | 1, 3 or 3, 1 | -1, 3 or 3, -1 | -1, 1 or 1, -1 | -1, -1 | 3, -3 or -3, 3 | 1, -3 or -3, 1 | -1, -3 or -3, -1 | 1, 1 | -3, -3 |
|---|---|---|---|---|---|---|---|---|---|---|
| 3 | 0 | -0.125 | -0.125 | -0.25 | -0.25 | 0 | -0.125 | -0.125 | -0.25 | 0 |
| 1 | 0.25 | 0.125 | 0.125 | 0 | 0 | 0.25 | 0.125 | 0.125 | 0 | 0.25 |
| -1 | 0.25 | 0.125 | 0.125 | 0 | 0 | 0.25 | 0.125 | 0.125 | 0 | 0.25 |
Table 1
Example 1: Assume you state a valuation of -1e. If the other two group members state valuations of -1e and 3e, then you receive a transfer of 0.125e.
Example 2: Assume you state a valuation of 1e. If the other two group members state valuations of -3e and 3e, then you receive a transfer of 0.25e.
Example 3: Assume you state a valuation of -3e. If the other two group members state valuations of -1e and 3e, then you receive a transfer of -0.125e. Therefore you have to pay 0.125e.
Example 4: Assume you state a valuation of 3e. If the other two group members state valuations of -3e and -3e, then you receive a transfer of 0.
Please note that transfers payments are always made, independent of whether project A is implemented or not. You receive / pay a transfer on top of the payments from project A.
Rule II. At least two group members have to vote for the implementation of project A. In part two all group members vote either for or against the implementation of project A. At least 2 group members have to vote for the implementation, otherwise project A is not implemented (simple majority).
Rule III. Project A is never implemented. Group members do not make any further statements in part two. There is no voting and no valuations are stated.
Rule IV. The decision for or against implementation of project A depends on the result of a coin flip. There is no voting. If the coin flip results in HEADS, the project is implemented. If the result is TAILS, the project is not implemented. Both results, HEADS and TAILS, are equally likely. Therefore with rule IV. project A is implemented in 50% of all cases and not implemented in the other 50%.
Please note that in decision rules I and II each participant has to state a valuation / vote. It is not possible to abstain.
We now ask you to answer several understanding questions regarding the various decision rules and your possible payments. Please answer these questions on the computer screen. After all participants have answered the seven understanding questions all participants will take part in four practice rounds. In each round you will apply one of the four possible decision rules (I.-IV.). In these rounds there is no choice between two rules, but the rule is predetermined.
In these four rounds you are not in a group with two other participants. The computer simulates the decisions of your group members. The computer randomly choses between all available actions. E.g. with rule II the computer will vote "YES − implement project A" in 50% of all cases and "NO − do not implement project A" in the other 50%.
These four rounds do not count towards your final profit. They are just meant to familiarize you with the four possible decision rules. After all participants have completed these four rounds the actual experiment starts.
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Curriculum Vitae
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SPECIAL REPORT 298:
DRIVING AND THE BUILT ENVIRONMENT: THE EFFECTS OF COMPACT DEVELOPMENT ON MOTORIZED TRAVEL, ENERGY USE, AND CO2 EMISSIONS
U.S. Housing Trends Generational Changes and the Outlook to 2050
John Pitkin Analysis and Forecasting, Inc.
Dowell Myers University of Southern California
Paper prepared for the Committee on the Relationships Among Development Patterns, Vehicle Miles Traveled, and Energy Consumption
Transportation Research Board and the Division on Engineering and Physical Sciences
2008
U.S. Housing Trends
Generational Changes and the Outlook to 2050
JOHN PITKIN
Analysis and Forecasting, Inc.
DOWELL MYERS
University of Southern California atterns of housing development are poised for dramatic change in the early decades of the 21st century. There are a number of reasons to expect that major trends in U.S. housing markets during the coming half century will differ markedly from those that have dominated recent decades. These include both new patterns of demand and ongoing changes in the housing stock, as well as the unique intersection between supply and demand. Research on long-term housing trends has been greatly underdeveloped, with most attention focused on short-term market behavior and changes in current preferences. However, a body of knowledge has slowly accrued in the subfield known as housing demography and may now be poised for much greater attention given the urgency of impending trends. P
On the housing demand side, the inevitable aging and retirement of the large Baby Boom generation, the rise and uncertain future of immigration, and on-going changes in the level and distribution of income will affect how many households there will be in the future and their ability to pay for housing. Less quantifiable but potentially of no less impact on demand are trends in preferences especially among the younger generation. On the supply side, the characteristics and location of the stock of existing housing have evolved from what they were a quarter century ago, posing new constraints as well as opportunities for future development, redevelopment, and reuse. And it seems increasingly possible that rising energy costs and climatic events, along with their associated mitigation measures, could lead to new and different patterns and types of development by mid-century if not sooner. The challenge before us is to examine our knowledge of observable past trends in U.S. housing markets to understand whether, why, and how we should expect them to differ in the coming decades.
A relative lack of research has been conducted about these potentially momentous housing trends, although the early years of the new century have witnessed a stirring of interest. Research to date has either been too short-horizoned or too heavily reliant on sweeping broad assumptions. Among the longest range of housing studies are Berson et. al. (2006) and the Joint Center for Housing Studies (2007), both of which examine the trends in the coming decade and see this as a period of transition during which the effects of the aging of the Baby Boom generation will begin to be felt. However, these analyses stop short of the period when the impacts will be felt with full force. Perhaps the most ambitious study is Nelson's (2006) summary analysis that delves further into the future and projects a major shift in the demand for new development, envisioning a swing away from low density housing over vast areas to much more centralized and compact development. In a widely noted popular article, Leinberger (2008) has linked the Nelson analysis to the conclusion that the suburbs could become future slums. Offering a more focused view that builds on the best known future data—future population and its age structure—Myers and Ryu (2008) examine the geographic (interstate)
differences in age structure and home buying or selling. They find a future oversupply of homes offered for sale by aging Baby Boomers, but they report wide variations between states in the time period when markets will be transformed by the aging of the Baby Boom generation. They also discuss likely responses of housing suppliers, community impacts, and possible mitigation strategies.
The Baby Boomers, indeed, will be the central driving factor in the next three decades, just as they have been in the past. The aging, retirement, relocation, and withdrawal from the housing market of the large generation of Baby Boomers are likely to shape U.S. housing markets and housing trends for decades to come. In this paper we will analyze this process and its foreseeable implications for housing markets based on what we know about today's population, their housing patterns, and the housing life-course of earlier cohorts. The long-term impacts, we will argue, are likely to be profound, leading to breakdown of established norms for housing markets and development and the rise of new ones. By mid-century, however, new generations yet unborn and uncounted will begin to dominate housing markets, the uncertainties multiply, and different analytic approaches are called for.
Total population growth offers only a very crude insight into future development. What will most determine future development patterns is the intersection between growth in specific population segments and the available supply that is attractive to those segments. What has been overlooked by most housing analysts is that growth of homeowners in the oldest age group has the potential effect of accelerating the release of supply on to the market, when the oldest households move to retirement homes or die. An important determinant of the locus of new housing supply has been the extent to which the existing housing stock matches or, most importantly, fails to match, the demands of growing numbers of households. Locational and quality submarkets that are in demand in one historical period may be in balance or even in excess supply in another. Both the population and the housing stock are long-lived, varying over time by their growing age and also by their period of birth or construction.
Much greater attention deserves to be paid this correspondence between a population of long-lived idiosyncratic households that change through the demographic processes of union formation, fertility, aging, and mortality, and a stock of durable and idiosyncratic housing units that are fixed in location but subject, over time, to modification and eventual demolition, comprising a subfield of analysis that has been termed housing demography (Myers 1990, Baer 1990). The insights of housing demography are particularly helpful in understanding how past housing trends and tendencies should be expected to change in the coming decades.
Our paper seeks new insights and improved answers to critical questions about long-term trends in U.S. housing markets. Among these questions are:
* How will the growth of the population over age 65—a projected 31 million increase between 2010 and 2030—affect housing markets?
* What impacts if any will the resulting increase in the ratio of elderly households to younger households have?
* Will the large stock of houses built in the suburbs during the mid and late 20 th century start to show the effects of age, obsolescence and loss rates closer to the older housing stocks in central city and non-metropolitan areas?
* What will be the key nexus between subsectors of major demand increase or loss and existing housing supply, and how will the mismatch of supply and demand potentially shape housing development patterns into mid-century?
* How might key changes in demographics alter this outlook, including changes in retirement patterns (more delayed retirement) or increased immigration?
* What are the spatial implications of the trends that have been identified?
1. HOUSING TRENDS, 2005 TO 2030
A useful starting point for thinking about long-run development trends is provided by Nelson (2004, 2006), who quantifies total future growth in housing demand and stock to 2025 and 2030. Building on the earlier work of Riche (2003) and Masnick, Belsky and Di (2004) on changes in population and households, he projects an increase of 32 million households from 2000 to 2025 and an additional 6.8 million households in 2030, from 105 million in 2000 1 . Allowing for additional construction to replace units removed from the housing stock through demolition, conversion or other means, the requirement for new construction from 2000 to 2030, including replacement and vacant units, amounts to 58.9 million housing units. By comparison, 44.6 million units were built during the 25 years between 1980 and 2005.
As a result of increases in the demand for housing as well as commercial and industrial facilities, Nelson projects that "over half of all development on the ground in 2025 will not have existed in 2000, even more important is that by 2025 much of society will have been spatially rearranged." The spatial reworking he foresees is driven as much by changes in the type and location of housing that will be demanded as by the simple growth.
A. New Preferences for Housing Types?
According to Nelson, the projected need for new units is equally divided between attached units, including apartments, townhouses and condos, and small lot houses (on less than 1/6 acre), with no net increase projected in the need for houses on larger lots. This projection is based on the current imbalance between population preferences for housing types relative to the characteristics of existing stock and assumes that this gap will be narrowed by 50 percent by 2025. 2 This projection, coupled with recent trends in housing prices and preferred locations for development lead Nelson to predict a complete reversal of long-standing trends favoring greater expansion in less dense outer suburbs and exurbs than in urban centers:
…the American dream of owning one's own home may result in millions of senior households living in auto-dependent suburban homes which have lost value compared to smaller homes in more central locations where many of their services will be located. (Nelson, p. 398)
1 The 2000 count of 108 million households cited by Nelson (2006, p. 395, Table 2), differs from the definitive census SF1 count of 105.5 million (U.S. Bureau of the Census 2001). We use Nelson's figure for growth but assume consistency with the census count, which implies 137.5 million households in 2025, below the 140 million in Nelson.
2 Although Nelson cites pertinent data on projected increases in the elderly population and single-person and childless households who tend to favor attached and small lot housing more than larger households, this information is not factored in to his projection.
Fishman (2006) has declared this reversal a new "fifth migration" that will focus residential growth in coming decades toward the centers, not peripheries, of metropolitan areas, though he is more optimistic about the future of suburbia. 3
In fact, after decades of neglect, apartment construction appears to be resurgent in many central cities (Birch, 2002). This is consistent with growing preferences for more compact development that is higher density and more centrally located. The growing belief today is that young adults now have a stronger preference of urban living than their predecessors. Urban universities like Columbia and NYU in New York and USC in Los Angeles enjoyed a dramatic surge in applications during the late 1990s. Christopher Leinberger (2007), a developer, market commentator, and proponent of walkable communities, has suggested that the younger generation was raised on television shows like Sex in the City, Friends, and Seinfeld that portrayed an attractive and exciting quality of urbanism in the 1990s. Despite this preference argument, nonetheless, impartial analysts have concluded that there is scant evidence of any net shift of total or elderly population toward central cities (Englehardt, 2006; Frey, 2007), and the amount of new construction has not been sufficient to indicate a structural shift in the locus of new urban development.
B. Demographic Explanations Put Weight Behind Preferences
We think Nelson and others have placed too great an emphasis on changing preferences as the driver of changing development patterns. Certainly preferences are a factor, but they are embedded in other factors that have more predictable impact. The forces of change are better viewed as a combination of changing demographics and the changing preferences held by specific demographic groups. These two factors work most effectively to shift demand for different types of housing when they work in concert. (As discussed later, changing energy costs and concerns about emissions control also will lead to change, but those factors are less predictable than the demographics.)
As a prime example that is discussed below, the slump during the 1990s in the growth of population in their 20s was a likely cause of the nation-wide downturn in the share of construction that was apartments. The current resurgence of multifamily construction likely reflects the arrival in this age range of larger cohorts whose housing demand created apartment shortages and then spurred new construction. Thus it could be said that the revival of downtown apartment construction was merely responsive to changing demographics of young people. If this trend has not yet accumulated to a readily measured phenomenon, that might be due to offsetting trends of demolition in cities, locational definitions of "central cities", or other factors.
A second demographic force, the aging of the baby boomers, has been emphasized by other authors and is propelled by a larger generation than young adults. Myers and Gearin (2001) interpreted survey data that showed age groups 55 and older expressed stronger interest in living in attached townhomes than did younger adults age 25-34 (20% compared to 9%). They emphasized that the aging of the Baby Boomers was moving many more people into the highpreference age group. The authors asserted that the townhome preference was a surrogate indicator for a preference for denser, more centrally located and walkable environments. 4 Myers
3 "The reurbanization of the core will necessarily ease the pressure for expansion at the edge, thus increasing the chances for successful suburban growth management." (p. 360)
4 The interpretation of preference for more compact residential environments was justified by the wording of the question from a national survey in 1999: "Consider the following hypothetical choice: Your income is high enough
and Gearin also surmised that the Boomers' preferences could shift even more strongly toward more such residential environments once successful new developments allowed them to gain greater familiarity with the alternative.
C. How Demographic Change Focuses Development and Leverages Impacts
A further contribution of Myers and Gearin was to emphasize how future development demand is driven by growth at the margin—by the rate of change in specific segments—rather than simply by net increases in total households. A related concept of "tyranny of the minority" has been proposed to emphasize that new construction does not respond to average growth in demand (Myers 2000). Rather, only 1 or 2 percent of all households each year lives in newly constructed units, and it is this small minority that is the clientele served by developers of new housing. (The rest of the population lives in existing units built to the dictates of previous years' consumer minorities.) Myers (2000) proposes that this segment is not representative of the population as a whole and is drawn disproportionately from population groups that are growing faster than the supply segment attractive to them. Conceived in this manner, demographic change has potential to drive major shifts in development patterns if the growing categories in one decade have distinctly different preferences than the growth categories of prior decades.
2. PROJECTIONS OF HOUSEHOLDS TO 2050
All of the foregoing analyses of future housing trends recognize the central role of demographic trends, in particular growth in the numbers and characteristics, size and age, of households, yet none make quantitative projections beyond the year 2030. There is good reason for caution about making longer term projections. Since most of the people who will be old enough to form their own households in 2030 have already been born and since mortality rates are not expected to change sharply, the main unknowns in projected number of households for that year are the increase in adults due to immigration and the fraction of adults who form households. Neither is likely to cause large variations in total household growth. 5, 6 The range of uncertainty in the projected total number of households is therefore relatively narrow.
A. Well-Founded Projections of Households
Not all projections of households are equally well founded. Some of the sources relied upon by Nelson were not the products of extensive research and model development. The work by the Harvard Joint Center is certainly among the most professional, but its projections are not sufficiently long range. As an alternative, Zeng, et.al. (2006) have projected the effects of
to purchase a $150,000 home. You have two options: buying a $150,000 townhouse in an urban setting close to public transportation, work and shopping. Or, you could purchase a larger, detached single-family home in a suburban area, with longer commutes to work."
6 Jiang and O'Neill (2007) find that the variations in age-specific headship rates (householders per capita) since 1900 have been modest.
5 Masnick and Di (2003) find that quite large assumed differences in projected levels of immigration (+/- 250 thousand per year) would have only modest (+/- 7 percent) impacts on baseline projected 2000-2020 growth in total number of households. They conclude that "Most of our future household growth over the next two decades will come from people already resident in the United States."
demographic trends on future numbers and composition of U.S. households further into the future in considerable detail. They use a macro-simulation model that projects numbers of various household types based on detailed projections of demographic rates including fertility, mortality, union formation, and divorce. Zeng, et.al.'s analysis extends thirty years further into the future, to 2050, than the most thorough demographic study cited by Nelson. 7 They address the issue of uncertainty, by providing ranges for each projection. See Table 1.
In 2030 the range of household projections is relatively small: the high and low total numbers of households differ from the mean by only +/-3.5 percent. 8 As projections are extended further into the future, a growing proportion of the people who will be of household-forming age are yet to be born, their numbers depending on future fertility rates. As a result, the effects of uncertainty multiply and cumulate, and the range of the projections expands. By 2050, the low and high projections differ by 39.2 million, or +/- 11.4 percent from their mean. Pitkin (2007) and Jiang and O'Neill (2006) report projections of households made with the same macrodemographic model (ProFamy) used by Zeng, et.al. and population assumptions that closely match the Census Bureau's (2000) Medium projection series. The projected number of households is slightly below the midpoint of Zeng et.al.'s projected range, 166.6 million in 2050.
B. Comparison to Nelson's Projections
The 38.8 million increase in the number of occupied housing units roughly projected by Nelson for 2000 to 2030 falls at the lower end of the range of households projected by Zeng et.al. and therefore might be considered conservative, since the estimate of added units should also include an allowance for vacancies and exceed the number of households. The two sets of projections agree on another point that is central to Nelson's argument, that the rapid increase in one-person households is likely to continue for the next several decades. However, the range of projections for specific types of households becomes proportionally larger than the projections of total households. This greater uncertainty reduces the usefulness of these projections as a basis for estimating trends in the detailed mix of housing types and location beyond 2030.
7 Masnick, Belsky, and Di (2004). Nelson uses a constant persons per-household-ratio, an approximate method, to extrapolate the projection of households to 2030.
8 In 2020 the range is, as expected, narrower, +/- 1.6 percent, and the number of households projected by Masnick, Belsky and Di falls in the middle of the range.
3. MACRO TRENDS IN HOUSING 1980 TO 2005
The housing stock should be projected in conjunction with projections of population and households. Given its great durability and also expense of construction, the housing stock cannot change very quickly. In trying to understand future housing trends it is helpful to consider what changes actually occurred over a similar span of time in the past. What were the actual changes in the number and mix of households in the last quarter century? And how has the stock of housing units occupied changed, in number, location, and type of unit? We consider data from the period 1980 to 2005. This will provide perspective as well as insights that can help us to discern probable future housing trends.
A. The Connection of Population Change to Growth in Households
Between 1980 and 2005, the Baby Bust generation, who were age 20 to 39 at the end of the period, formed 29 million new households that accounted for 95 percent of the total increase in households of 30.6 million. (Table 2, first column.) The next largest source of household growth was the Baby Boom generation, many of whom were still in prime household-forming ages
Table 2
Households by age / nativity / arrival cohort of householder.
Source, 1980: 1980 Census PUMS 5% sample.
Source, 2005: 2005 American Community Survey PUMS file; 2005 population in group quarters estimated from 2000 Census. Numbers of householders and households differ in the American
Community Survey; these estimates are consistent with household counts.
during the 1980s and who added more than half as many (16.1 million) households net. 9 The third largest component of growth in households was the 8 million added by the cohort of foreign-born immigrants who arrived in the U.S. between 1980 and 2005. (In Table 2, 20-year native born generations are delimited by their year of birth while 20-year cohorts of foreign-born immigrants are delimited by their year of entry to the U.S. regardless of age.) In all, six cohorts or generations added households between 1980 and 2005, forming a net total of 57 million more households in 2005 than in 1980.
Over the same period, other cohorts lost households, the largest number lost by the native born cohort born between 1905 and 1924, which formed 14.5 million fewer households at the end of the period. This represented more losses than the other three declining cohorts combined. (Declines are shown in bold in Table 2.) The total net generational decreases (26.4 million) approached the size of the net total change in households (30.6 million).
It is important to understand these generational changes, or flows, because the locations and types of housing units occupied by newly formed households differ from those left by dissolutions. These differences are both idiosyncratic and systematic. Moreover, they set in motion a direct or indirect exchange of existing units among households in different cohorts. This exchange matches households with the stock (supply) of each unit type in each location. Because older cohorts give up units on net and younger or later ones acquire them, it can be described as including a process of generational filtering or succession.
B. Matching Household Growth to Change in the Housing Stock
A fundamental equilibration must occur between changes in the population and numbers of households and the changes in the housing stock or occupied housing units. Where the numbers of housing units newly occupied exceed the numbers given up, for specific unit types in particular locations, new construction and conversion tend to occur and vacancies to decline. On the other hand, where there are too few households to occupy the stock of existing housing released by declining cohorts, demolition, conversion, other stock losses and new vacancies tend to occur.
We can also compare the changes in the stock of housing through additions and losses for the same period to the changes in population and households. A total of 44.6 million new housing units were added through new construction and another 4.1 million through other means such as conversion from non-residential use and splitting of existing housing units. These gains were offset by removal of 12.8 million units through demolition, damage, and other means, leading to a net increase of 35.9 million housing unit over the 25 year period. 10 See Table 3, top row. The total average loss rate, .5 percent per year, includes mobile homes. Excluding mobile
9 These figures are the difference between the numbers of households with householders age 40 to 59 in 2005 and the number with householders age 15 to 34 in 1980. It is a net number in the sense that it reflects the excess of the number of households formed over the number dissolved by Baby Boomers during the period.
10 Estimates are based on net changes in the housing stock (numbers of housing units) between the 1980 Census (PUMS) and 2005 American Housing Survey (AHS). "Other additions" are cumulative AHS Components of Inventory Change (CINCH) estimates; New construction is from private building permits and mobile home placements; and Total losses are a calculated residual. The cumulative AHS CINCH estimates show substantially less increase in the housing stock (25.4 million units) and correspondingly greater Total losses (19.5 million units) over the 25 year period. Though the AHS-minus-Census estimate of net stock change is subject to error due to any changes in reporting or coverage, these estimates are judged to be more credible than the corresponding CINCH estimates.
Table 3 Components of change in housing inventory, 1980-2005
Net of existing mobile home/trailer units moved in.
Sources:
Other additions: American Housing Survey Components of Inventory Change (biannual).
New construction: US Census Bureau, New Privately Owned Housing Units Started, www.census.gov/const/startsan.pdf (as of May 2007); and Placements of New Manufactured Homes,
Net change by Type of structure and Region: 2005 American Housing Survey Components of Inventory Change and 1980 Census (PUMS 5% A-sample).
Net losses by Type of structure and Region: calculated as residual of Net change - New construction - Other additions.
Total losses by Metropolitan location: Estimated from loss rates by Type of structure and Housing stock (2000 Census SF3).
Net change by Metropolitan location: Calculated as sum of Total losses, New construction, and Other additions..
homes, the net loss rate is .4 percent per year, well below the .58 % per year estimated and projected by Nelson (2004). Below, we will argue that higher costs of building materials and demographic trends will tend to reduce loss rates in the future.
Changes in the stock of some particular kinds of units stand out, including relatively large annual increases for 1-family attached units (1.2 percent) and those in the suburbs (1.4 percent) and the slower increase in central city stock (.7 percent per year). Some substantial variations in the rates of change are intercorrelated. The relatively high loss rates in the growing South region, for example, reflects the large presence in the region's housing stock of mobile homes, which have the highest loss rate of any housing group tallied, and the higher loss rate in central cities than in the suburbs is in part due to the greater average age of the stock of housing in central cities.
C. Impacts on Housing Trends
The net result of these population and housing interactions can be development trends that are explained by many commentators as simply changes in current preferences. A prime example is the shift away from multi-family (apartment) construction in California during the 1990s. Apartment units accounted for 46.1 percent of the units built in California between 1970 and 1980 and 45.1 percent between 1980 and 1990, but apartments amounted to only 25.4 percent of units built during the following decade. 11 The puzzle of this decline in apartment construction was that this was a period when planners were highly concerned about affordable housing and fighting urban sprawl, certainly more concerned than in the 1960s when apartments amounted to about 48 percent of construction. Are we to attribute this dramatic decline in apartment construction to changing preferences, namely a loss of consumer interest in apartment living in the 1990s, followed by a supposed rediscovery of love for this more compact lifestyle in recent years?
In fact, the collapse of apartment construction coincided with the arrival of the Baby Bust generation in the ages where occupancy of newly built apartments is highest: The number of 20 to 29 year olds in California fell by approximately 850 thousand between 1990 and 2000. Since then the population of 20 to 29 year olds has started to grow again and, not coincidentally, there are signs of a revival in apartment construction. 12 Although a rival explanation might be that local government regulators decided to restrict apartment construction in the 1990s, that explanation is dispelled by that fact that a similar decline and recovery of multifamily housing was recorded in most states. Because the Baby Bust also was felt nationwide, these shifts can be explained without any change in consumers' preferences.
It is beyond the scope of this study to analyze all demographic changes in the U.S. in this level of detail. However, it is worthwhile to examine the trends surrounding the maturing and aging of the largest generation in U.S. history to date, the generation of Baby Boomers born between 1946 and 1964.
Always the largest cohorts in the housing market, the baby boomers' passage through the life cycle has created a surge in demand in each age bracket they occupied. Their entry into home buying in the 1970s spurred gentrification in cities and construction of starter homes in suburbs. Their subsequent march into middle age was accompanied by rising earnings and larger expenditures for move-up housing.
Frequently described as resembling a pig passing through a python, this large bulge of population has slowly surged through the age structure. For simplicity, here we focus attention on the most relevant adult ages for homeownership by excluding all those age 24 and younger. 13
11 Source: Residential Construction Authorized by Permits, California, 1970-2000 Source: http://www.dof.ca.gov/HTML/FS_DATA/stat-abs/tables/i3.xls accessed 11/27/02
12 One way to understand the importance of renters in their 20s is that new construction is supported most often by middle-income or higher tenants. (Low-income tenants of all ages live in apartments, but they cannot pay the rents needed to support private construction.) Families with children usually prefer single-family owner-occupancy, but young people in their 20s often are not married or do not have children. Thus, growth in the population ages 20-29 brings more of the middle class into renting and supports more construction; losses in this age group shrinks the numbers of middle-class tenants because the previous young cohort has moved on to single-family homeownership. 13 According to the 2000 census, only 1.4% of owner-occupied homes in the US were headed by a person under age 25. Age 25 is also generally regarded as the lower demarcation of "prime working age," as it reflects a time of secure establishment in employment careers.
After 1970 the leading edge of the Baby Boomers began to cross age 25 and enter the market for homeownership. Seven decades are summarized in Table 4, showing the total growth in the U.S. population each decade and partitioning this between ages 25 to 64 and 65 and older. After the 1960s, a single age group accounts for 40% or more of the growth, as indicated in the table. That age group is occupied by the front half of the Baby Boomers and advances 10 years in each successive decade.
The transition from the 1960s to the 1970s witnessed a sharp acceleration in growth of population aged 25 and older, doubling from 10.6 to 22.9 million growth in adults as the Baby Boom children came of age. Whereas the largest age group in the 1960s was in pre-retirement years, the 1970s were dominated by four times that amount of growth in the 25 to 34 age group, a great many of whom were forming new households and buying homes. This sudden surge in demand drove several housing market trends, spurring new apartment construction, gentrification in cities where young adults congregated, and escalation in house prices in metropolitan areas where supply was slow to expand, whether hampered by topography or regulatory constraints. In subsequent decades the leading edge advanced to progressively older age groups, each time accounting for half or more of the total population growth in that decade. As the cohort grew older and it reached the peak stages of the earnings life cycle, its focus of housing demand shifted to move-up housing for families with older children, or higher amenity housing for empty nesters with mature tastes.
4. HOW BABY BOOMERS (AND OTHER GENERATIONS) WILL SHAPE HOUSING TRENDS TO 2050
Looking ahead to the coming decade, the Boomers' entry into retirement will be followed by further housing relocation and eventual withdrawal from the housing market. As will be shown, this generation's impacts on the housing market can be best understood in light of its size relative to that of earlier and later cohorts.
TABLE 4 Population Growth Each Decade (millions)
Sources: U.S. Census Bureau (2003a, 2007).
A. National Trends
After 2010 the leading edge of the baby boom cohorts will advance past age 65 and the growth of elderly population will then outweigh population growth of other adults, an unprecedented demographic event in the U.S. In these coming decades the long-accustomed balance between elderly and younger adults will be reversed. This transition is projected to reach a climax in the decade of 2020 to 2030 when the 75-84 year-old age group accounts for 8.3 million of the total increase of 19.2 million adults in the nation. In the same time period, the population of adults between ages 25 and 64 will grow by 2.4 million.
What makes the aging of the baby boomers loom so large is the relatively small size of cohorts that follow. This impact on growth trends across the decades is shown in Table 5, which highlights the passage of four 20-year generations:
* Baby boomers born 1946-64
* Baby busters born 1965-84
* Echo boomers born 1985-2004
* A newbie generation to be born 2005-2024.
TABLE 5 Tracking Generations Passage Through Age Groups, 1960 to 2050
| Boomers | 1946-64 | 45-64 | 65-84 | 85+ |
|---|---|---|---|---|
| Busters | 1965-84 | 25-44 | 45-64 | 65-84 |
| Echos | 1985-2004 | 5-24 | 25-44 | 45-64 |
| Newbies | 2005-2024 | -- | 5-24 | 25-44 |
Increase each decade in 1000s
| 12,106 | 2,655 -574 3,072 11,978 2,464 -652 7,371 12,845 3,334 284 2,306 -4,033 6,775 11,750 2,879 490 1,695 -3,906 6,546 10,510 2,732 | | | | | |
|---|---|---|---|---|---|---|
| 5,787 | | 11,978 | | | | |
| -3,359 | | 7,371 | 12,845 | | | |
| 1,789 | | -4,033 | 6,775 | 11,750 | | |
| 3,419 | | 1,695 | -3,906 | 6,546 | 10,510 | |
| -130 | | 3,860 | 1,981 | -3,354 | 6,167 | 8,320 |
| 4820 | | 332 | 4079 | 2251 | -2477 | 5268 |
Sources: U.S. Census Bureau (2003a, 2007).
More is known about the boomers than others because they have the longest record in the housing market. The baby busters (also termed Generation X) are less numerous and trail 1 to 20 years behind the boomers. The echo boomers are children of the baby boomers and are more numerous because of their parents' numbers, but lower fertility rates have not created as large a generation as the baby boomers. These echo boomers are only now entering the housing market, and so we do not have a solid grasp of their likely housing behavior. Finally, the "newbies" are just beginning to be born and the size of this generation is still unknown. Our best information comes from Census Bureau projections that apply current fertility rates to the number of women of child-bearing age.
What can be seen from Table 5 is how abruptly the leading edge of the baby boomers jolted numbers upwards when they entered an age group. The second half of the baby boomer generation increased growth even further, although half as much as did the first half. Thereafter, the population numbers declined with entry of the baby busters. Thus, as the baby boomers advanced through their careers they pushed up demand for the kinds of housing attractive to them in that life stage, but in the aftermath demand then fell with arrival of the baby busters. A mild recovery of population numbers is expected to ensue with arrival of the echo boomers, with an even stronger recovery expected with the newbie generation, but that will not occur until 2040.
In sum, what is apparent from Tables 4 and 5 is that the baby boomers will dominate changes in housing until at least 2030. It is the boomers' passage into retirement and out of the housing market that will be the driving force of the next decades. Moreover, there is little national variation in this factor. The baby boomers are ubiquitous, and the ratio of old to young adults is expected to grow in every state in the nation. The ratio of seniors to 25-to-64 year-olds is expected to rise by 67% in the nation between 2010 and 2030, and the state with the lowest increase is Oregon, with 55%.
In light of the leveraging effect that this concentration of growth will have (the tyranny of the active consumer minority discussed above), new construction will likely cater to the demands of seniors. At the same time, the sell-off of seniors' former housing creates a potential supply that will potentially exceed younger adults' effective demand. American communities face an historic tipping point in the social make-up and economic base of their housing and neighborhoods. The essence of the problem to be confronted is the disproportionate number of existing homes eventually coming for sale. The exit of the baby boomers from homeownership could have as great impact as their entry, but the consequences would be reversed.
A very recent effort to assess these impacts calculated per capita rates of buying and selling homes for each age group in each state (Myers and Ryu 2008). When applied to population projections available from the Census Bureau, it is possible to project probable numbers of buyers and sellers. Illustrating these rates for four states, Figure 1 shows annual buying and selling rates for Arizona, Ohio, New Jersey and California. After age 65, selling begins to predominate, and given the predominance of the older population relative to the younger, there are expected to be more homes for sale than buyers.
(b) per capita annual rates of selling homes [from Myers and Ryu (2008)].
B. Regional Variations in Generational Change
There is scant precedence for this phenomenon, but we can draw some insights from two of the states that currently have the oldest populations in the U.S.—Florida and Pennsylvania—as well as from two of the nations with the oldest populations in the world—Japan and Italy. Japan has the oldest population of any sizable nation in the world—20 percent age 65 and older—while Italy follows close behind—19 percent age 65 and older. Both these countries have very small average household sizes, in part because the high percentage seniors is attained by having few children present. The total fertility rate in the two countries is among the absolute lowest in the world, 1.2 children per woman (Japan) and 1.3 (Italy). In contrast, the U.S. has a total fertility rate of 2.1 children per woman. In coming decades, the U.S. is expected to retain roughly the same fertility rate, but the aging of the giant baby boom generation has such weight that the proportion age 65 and older in 2030 will reach 19.7 percent, virtually the same as Japan today.
More dramatic are the changes expected in particular states. At present, Florida is the oldest state, with 17.6 percent age 65 and older, and provides one glimpse of our aging future. Pennsylvania is the third oldest state (after West Virginia), with 15.6 percent elderly. By 2030, the two states will have aged considerably, reaching 27.1 percent elderly in Florida and 22.6 percent in Pennsylvania. These well exceed the level in Japan today. Meanwhile, many of the other states will have aged as well, even surpassing the percent elderly found in Florida in 2000. However, there is a crucial difference between Florida and Pennsylvania or other states. From 2000 to 2030, Florida is projected to grow by 79.5 percent while Pennsylvania only grows by 4.0 percent (the U.S. by 26.2 percent). An aging population has very different impacts when the prime working age population is also growing by 57.9 percent, as in Florida, rather than declining by 4.0 percent, as in Pennsylvania. This shrinking population will undermine the state's housing market in the decades ahead, while in Florida's case it may merely reduce new construction below previous levels. 14
5. IMMIGRATION AND HOUSING TRENDS
These predictable patterns of aging are overlaid with additional demand growth from immigration, which appears to be much less predictable. There has been a sustained, substantial increase in the flows of immigrants entering the United States over the past half century, due to a number of reasons, 15 rising from an estimated average net flow of 258 thousand per year in the early 1960s to an annual average net of 1,166 thousand per year between 1997 and 2006. (See Figure 2.) As a result, the foreign-born share of the population more than doubled from its historic observed minimum in 1970 to 13.1% in 2006, and the foreign-born have consistently made up an equal or larger share of U.S. householders. (Figure 3.)
14 Census Bureau, Interim State Population Projections, File 2, 2005.
15 Reasons for immigration's increase include changes in laws regulating immigration, relaxed border enforcement, international wage differences, the demand for labor in the U.S., and population growth in Mexico and other source countries.
A. Immigrant Contributions to Housing Demand
In fact, in 1960 the foreign-born share of householders and households greatly exceeded the foreign-born share of population, 9.2 percent against 5.8 percent. At that time the foreign-born population was comprised mainly of long-settled and older immigrants who had entered the U.S. before 1930. By 2000, after the stock of foreign-born population had been rejuvenated by growing streams of new immigrants, the difference in the foreign-born shares of households and population declined to 0.6 percent.
The impact on net household formation is seen in immigrants' share of all new entrants to the housing market. New cohorts of immigrants entering the housing market can be measured approximately by net immigration lagged 5 years, and total entrants to the housing market, can be measured approximately by the number of births lagged 25 years plus immigration lagged 5 years. 16
According to this approximate measure, the foreign-born share of new entrants to the housing market increased steadily from 9 percent in 1960 to 25 percent in 2006. (Figure 4.) It is interesting to note that by 1984, the year when peak numbers of the baby boomers were entering the housing market, immigrants already accounted for 16 percent of new entrants. Thus, the maximum Baby Boomer impact on household formation was reinforced by growing numbers of new immigrants.
While substantial changes in both housing demand and housing preferences and patterns of location are already be "in the works" as the result of the arrival, aging, and assimilation of immigrants already in the U.S., continued immigration at recent high levels raises the prospect of even larger changes in future decades.
The housing patterns of households with foreign-born householders are substantially different from those with native-born householders. For example, the foreign-born are much more likely than native-born to live at high densities, in multi-family units, especially those who arrived recently. However, assimilation with increasing duration of U.S. residence substantially reduces these differences by nativity. Figure 5 shows differences by nativity and period of arrival. Note both the monotonic declines in multi-family occupancy with increasing duration in the U.S. and between immigrants and native-born, especially the large drops in multi-family share for 1980-89 arrival cohorts, both Hispanic and Non-Hispanic, between 1990, when they were newly arrived, and 2003 (American Housing Surveys). Similar differences by nativity and duration have been found in the use of public transportation for the journey to work (Myers 1997).
B. Projected Immigration and Impacts on Housing
In order to address potential future impacts of immigration on housing trends we must consider long-term population projections, what different assumptions they make about future immigration and what the implications are for the size and composition of the future population and households. Most of our understanding of life cycle changes and generational differences is
16 This is an approximate measure of central tendency. The mean age of new immigrants on arrival has been in the early 20s. While some form independent households or buy homes immediately, many do not until more than 10 years later. Similarly, 25 years is an approximate average age for household formation and first home purchase by native born cohorts.
based on observations of birth cohorts that are largely comprised of native born population. Because the contribution of immigration is increasing so greatly we will also need to consider whether the preferences and incomes of immigrants systematically differ from those of nativeborn cohorts in ways that affect future choices of either housing types or locations.
Among the more authoritative long-term population projections there is not only no consensus about levels of immigration in the distant future, but the range of assumptions about immigration is necessarily wide. The range of projections of immigration for the near future, through 2020, is narrower and centered just below the estimates of recent immigration. These projections are those of the U.S. Census Bureau (2004), Social Security Administration (SSAB, 2007) and the Pew Research Center (Passel and Cohn, 2008). Three other U.S. Census Bureau series (2000) on a 1990 Census population base are also of interest because they separately identify the foreign born population and include separate Low and High variants. 17
Recognizing the uncertainties in the long-range projections (seen in Figure 2), we recommend that the panel focus on a central range of population projections, bounded below by the Census Interim series and above by the main Passel-Cohn series, and be aware of an outer range of projections bounded by the Census (2000) Low and High series. It should be noted that these projections also incorporate different assumptions about fertility and mortality; however the migration component is by far the largest source of differences for the period of interest. These population projections and the shares of foreign born and Hispanic population in 2030 and 2050 are summarized in Table 6. 18
As we have indicated above, the population's choices of housing types and locations are mediated through households. There are no available projections of foreign-born householders, but the foreign-born share of population provides a benchmark range of 13 to 16 percent in 2030 and 14 to 19 percent in 2050. Historical patterns provide some indication of the implications for numbers of foreign-born householders. In 1960 the foreign-born share of householders greatly exceeded the foreign-born share of population (Figure 3), but the gap has since narrowed and almost disappeared as young, large Hispanic families have succeeded older European immigrants as the dominant foreign-born population segment. As pre-2005 immigrant cohorts age and their
17 Despite the fairly stable trajectory of five-year average immigration levels since at least the 1965 Immigration Act, there are large differences in the long-term assumptions about future immigration rates in the different central series projections. One alternative assumption, embedded in the Census Interim and SSAB intermediate series is that current policy initiatives in combination with changing demographic conditions in current major source countries will succeed in limiting future inflows moderately below current levels, notwithstanding recent high rates of illegal (undocumented) immigration. In Mexico, a prime example, "fertility registered an average of five children per woman in 1978; then fell to four children in 1985; afterwards decreasing to three children in 1993 until reaching around 2.4 children at the present time." (Tuiran, et.al. 2002) See, e.g., the Census Interim and SSAB range of net projected immigration, Figure 2. A competing assumption, incorporated by Passel and Cohn, responds to repeated previous official underprojections of immigration by assuming that immigration will continue its the long-term average rate relative to the total U.S. population, .0048 per capita per year. By 2030, the resulting immigration levels are well above both recent levels and the highest SSAB variant. (See Figure 2.) Another widely cited shorter-term projection, by the Joint Center for Housing Studies (2006) assumes immigration at 1.2 million per year, a level close to the main Passel and Cohn series.
A further indication of the uncertainties about future immigration is seen in the extremely wide range between high and low variant projections from the same source. Those of the Census Bureau are shown in Figure 2; Passel and Cohn (Pew) use a range of =/- 50 percent. These ranges respond both to the large, albeit continual, increases since the 1960s, on the theory that what goes up might come down, as well as to the historical record of large variations in earlier historical periods.
18 Different levels of future immigration would have substantial impacts in many areas, including notably on labor markets.
TABLE 6
Population of the United States, by Nativity and Hispanic Origin: 2006 and Projected 2030 and 2050
(In millions except as indicated.) (Leading dots indicate sub-parts.)
| | 2006 | | | 2030 | | | 2050 | | |
|---|---|---|---|---|---|---|---|---|---|
| | Population | Foreign Born (%) | Hispanic, Total /3 | Population | Foreign Born (%) | Hispanic, Total /3 | Population | Foreign Born (%) | Hispanic, Total /3 |
| Observed /1 Intermediate range Census 2004 Interim /2 Pew (Passel-Cohn) Main Outer range Census 2000, Low Census 2000, High | 298.8 -- -- -- -- | 12.5% -- -- -- -- | 14.7% -- -- -- -- | -- 363.6 371.8 311.7 409.6 | -- 12.8% 16.0% 8.7% 17.9% | -- 20.1% 22.5% 18.0% 21.3% | -- 419.9 438.2 313.5 552.8 | -- 13.8% 18.6% 7.8% 20.5% | -- 22.3% 29.2% 22.2% 26.6% |
/1. Sources: U.S. Census Bureau, July 1, 2006 estimate; % foreign born from American Community Survey 2006
/2. Foreign-born share inferred from Census 2000 Middle and High series on which the Interim series immigration is based.
/3. Native and foreign-born.
families shed members, we might expect the share of foreign-born householders to rise above the share of foreign-born population, though not nearly by as wide a margin as in 1960, to over 20 % of all householders in 2050.
The one projection of Hispanic householders (in Pitkin 2007) indicates that this group will continue to comprise a slightly smaller share of householders than of population, due to their larger average size of families and households. In 2006 (ACS) they accounted for 10.8 percent of householders and 14.7 percent of the population. However, the difference in shares is likely to narrow as the current cohort of large Latino families ages and is succeeded by those of second and third-generation women with lower average fertility. The share of Hispanic householders implied by the central range of population projections in 2050 is therefore from less than 22.3 percent to less than 29.2 percent.
Choices of type of structure occupied can be expected to be affected by increases in the foreign-born and Hispanic shares of households, as suggested by Figure 5, and effects on metropolitan/central-city/non-metropolitan location can be anticipated as well, based on Figure 7. In combination, these housing and location choices carry strong implications for effects on mode choice, and, therefore, VMT. 19 Recent immigrants who arrived in the U.S. in the previous ten years are about three times as likely to live in multifamily housing as native-born nonHispanic households. However, this large difference is short-lived, falling by more than half within a decade of entering the U.S.
Smaller but still substantial differentials of about 50 percent greater multifamily occupancy are seen between long-duration foreign-born and the native born population and between native born Hispanics and native born non-Hispanics. These two population groups will increase robustly in both central range projections, so a shift in macro housing and location patterns can be projected. When these differentials are applied to the intermediate range
19 National Household Transportation Survey could be used to measure differences between Hispanics and nonHispanics but not differences by nativity or duration of U.S. residence, since this survey does not include immigration status.
population projections (in Table 6), i.e., holding constant the location and structure type profiles at current (2003) rates, they imply an approximate net shift of 2 to 3% of all 2050 households to central city locations, primarily at the expense of rural areas, both non-metropolitan and metropolitan, and a similar 2 to 3% shift of households to multifamily from single-family structures. At most, these projected shifts are equivalent to just over one-tenth of the current 23.6% share of households in multifamily occupancy and up to one-tenth of the current 29.5% of households living in central cities.
6. INCOME AND LOCATION
Two other forces will potentially further modify choices of housing type and location, income growth and changing regional location patterns.
Income growth matters, because Hispanic-non-Hispanic differences in housing types and metropolitan location (see below) appear to be associated with large differences in earnings and incomes rather than to differences in preferences or massive discrimination. There is consensus though not unanimity among studies of immigrant earnings and income that the descendents of the first-wave European immigrants (late 19th and early 20th century) closed most of the original large gaps in educational attainment by the third or fourth generation (Alba, et.al. 2001). However, there is substantial disagreement about whether comparisons of today's first and young second generations with European immigrants 75 years ago are valid (Perlman and Waldinger 1997). The current high incidence of undocumented status may be a substantial, enduring barrier to economic advancement (Portes and Zhou 1993).
Card (2005) concludes from his study of the recent educational progress of immigrants' children (to 2000) that most of the "U.S.-born children [of immigrants] will catch up with the children of natives." Smith (2006) analyzes the generational progress of different race groups from the Census of 1940 forward (including immigrant cohorts born as long ago as the 1860s) and concludes that generational progress of Latinos in education has not lagged substantially behind earlier immigrant groups.
By contrast, based on a detailed longitudinal analysis of high school completion by the cohort of children in high school in 1994-95, Perreira et al. (2006) conclude that the children of immigrants "make significant gains in educational attainment relative to their parents" but that in the third generation these gains stall and are even slightly reversed. This finding suggests that the descendents of Hispanic immigrants will close the gaps in education and, presumably, earnings with the descendents of native-born Hispanics, but not with those of native-born nonHispanics, i.e., the segmented assimilation hypothesis (Portes and Zhou 1993; Rumbaut 1997). Borjas (1994) also finds slow convergence among the descendents of the first wave: "the ethnic differentials introduced…may linger, to some extent…until some 100 years, or four generations, have elapsed since the migration took place."
Alba et al. (2001) conclude that it is too early to know which view is correct. Some attenuation of the Hispanic-non-Hispanic income and housing gaps is possible over the time frame of this study if economic assimilation proceeds rapidly, but at the same time, persistence of gaps for more than 50 years would be consistent with a multi-generational time scale of assimilation (as suggested e.g. by Smith 2006).
Changes in the regional distribution of immigration and the foreign-born population may further attenuate macro population shifts to more dense locations. Since 1990, new immigrants, especially Hispanic immigrants, are locating in the South and Midwest in much greater numbers than previously, and development patterns in these regions are more land intensive than in the Northeast, which was favored before the 1980s, and the West region, the dominant choice of location in the 1980s, where predominant development patterns are comparatively more compact. (See Figure 6.)
However, foreign and native-born Hispanics remain much more likely to locate in central city and other metropolitan areas than non-Hispanics of similar nativity status (Figure 7.), and between 2000 and 2004, 24 percent of the increase in the U.S. foreign-born population was still accounted for by two metropolitan areas, Los Angeles and New York, whose population densities are among the highest (Frey 2006).
7. DISCUSSION OF THE COMING GENERATIONAL SUCCESSION
The foregoing is a summary of relatively well-recognized population trends whose net effect may be appreciable. However, there is another little recognized but foreseeable force that will affect locational choices and patterns in the future, namely generational succession and filtering of the housing stock currently occupied by the baby boom generation. This large cohort, largely non-Hispanic and native born, is disproportionately located in outer suburban and exurban areas (see Figure 6), and their eventual exit from the housing market will unavoidably increase the availability of housing in these areas to successor generations, whether through sale or inheritance.
In addition, we may expect impacts of generational change beyond purely demographic effects. Though the largest shifts in tastes and fashions, e.g. for pedestrian-friendly communities and for lower energy costs and greater sustainability, cut across generations, the greatest changes are likely to be between generations. These impacts are likely to have cumulative effects but there may also be a tipping point when a new generation becomes the largest source of new market entrants or buyers.
Other drivers of long-term change and sources of uncertainty for future housing and locational choices and trends are climate change, fuel prices, and policies on climate change and energy. Future trends toward higher energy costs could well act to reduce preferred unit sizes and encourage more central locations that reduce the costs of transportation. And we would be closing our eyes to today's headlines if we failed to mention the possibility that the subprime mortgage crisis and end of the housing price bubble may have long-term repercussions for housing finance and affordability. Yet what may have the broadest implications is the relative shortage of new demand to offset the escalating volume of households leaving the housing market has much broader implications.
These population and housing dynamics are present nationwide, but the growth of population in each age group varies substantially. As a result, we can expect that the relative balance of exiting and entering households will create very different pressures for new housing development. Population projections available at the state level through 2030 provide insight into some important regional differences. Growth is compared for the primary entry-level age bracket (20-34), a middle age bracket of move-up home seekers (35-64), retirement-age housing adjusters (65-74), and the advanced elderly (75 and older) who will supply homes through their housing exits. (Although immigrants are included in these projections for each state, the data do not break them out separately.) To enable comparison of the 50 states which are of such unequal size, and to calculate a rate of growth, the population change in each bracket is expressed as a percentage of the total number of occupied housing units in the state recorded in 2005. These growth patterns in the 50 states are grouped by broad census region and sorted from highest to lowest rate of growth of entry-level population (see Figure 8 and Table 7).
Substantial losses are anticipated across the Midwest and Northeast in both the entrylevel and move-up age brackets. For example, in Ohio, entry-level population will decrease by an amount equal to 4.8% of the number of extant occupied housing units, and move-up population will decrease by another 9.9%, totaling population declines equal to 14.7% of the housing stock. Conversely, there is anticipated to be a 9.1% gain in retirement age population and another 8.0% gain in advanced elderly, totaling population gains equal to 17.1% of the stock. Although these gains appear to roughly offset the losses at younger ages, the older population occupies substantially more housing units per capita (household sizes are lower) and has a higher likelihood of homeownership. Thus, the impacts of growing demand at older ages can substantially outweigh the impacts of declining new households.
The differential growth by age group carries two major implications. The foremost problem is that the growth is loaded in the oldest age group which is poised to release its housing en masse. When the trickle of housing stock being released by the large Baby Boom generation due to downsizing, moves to retirement facilities, and mortality eventually becomes a flood, the potential for mismatches between the supply and demand of existing units will become widespread, affecting all but the fastest-growing states and metro areas. Analysis of cohort sizes and past exit rates suggests that this will occur soon after 2020 and can destabilize housing markets beyond 2030 and into the middle of the century.
A second implication concerns the systematically different housing preferences of the shrinking numbers of young and growing numbers of old. Close examination is warranted in each state of the types of units typically released by the older, exiting households, and the types of units typically sought by young, entering households. In states with slower overall population growth, large imbalances between the released and desired housing could emerge.
8. CONCLUSIONS AND RECOMMENDATIONS FOR FURTHER RESEARCH
Our central concern addressed by this paper is how and to what degree development trends in the next half century will depart from those of the last. This review has arrived at three broad conclusions.
A. Major Generational Transition Will Remake Housing Markets
In recent speculation about future housing and locational change, we find that too much weight has been given to uncertain changes in preferences and not enough to the more predictable changes in demographics related to housing. Using available data and recent literature, we have sketched the contours of the likely changes ahead, some of which underscore the claims based on preference analysis.
Because of the rise and advancement of the large Baby Boom generation as housing consumers and the somewhat later emergence of the New Immigrant generation as a source of housing demand, since at least 1980 the disproportion between the numbers of younger households demanding housing and the number of older households, either seeking to trade down in the housing market or move to retirement areas, or "supplying" their housing units through dissolution (or death), has had the effect of (1) creating both a sustained upward pressure on housing prices, a generational housing shortage, placing sustained upward pressure on housing prices, and creating a dependable market for new housing construction (which effect occurs in a particular area depends on the elasticity of housing supply) and (2) limiting stock losses through locational or functional obsolescence.
Once the large Baby Boom generation begins to decline in number and scale back its occupancy of housing (starting within 10 years) and immigration flows have leveled off (and possibly decline due to policy changes), the demographic pressure for price increases and new construction will slacken, and mismatches between housing stock supply and demand will leave substantial portions of the national housing stock subject to increased vacancy, disinvestment, and potential demolition or conversion.
How households and housing markets will respond to the eventual tidal shift in demographic forces on the housing market we can now only speculate. (The only projected demographic change that might substantially alter it would be a surge in immigration at the upper end of the range of population projections.) In the mean time much might be learned to help guide transportation planners and policy makers to further VMT reduction and other policy objectives. Myers and Ryu (2008) find that some states will soon experience the shift, and their experience can be studied to guide other regions.
B. Substantially Lower Replacement Rates for Housing Are Foreseen
In contrast to estimates by Nelson of a substantial remaking of the housing stock in the coming half century, we foresee lower replacement rates. Our calculation of past rates of housing loss and replacement yield substantially lower rates in the quarter century of 1980 to 2005, approximating 0.4% per year, excluding mobile homes, compared to Nelson's estimate of 0.6% per year. Looking forward to the next quarter century and beyond, we believe that changing fundamentals will tend to reduce net replacement rates substantially below the recent level. First, higher costs of building materials and reduced capital availability will make the nation's installed base of physical capital more valuable and more resistant to being replaced. Second, due to projected rapid increases in one-person households, excess demands for smaller housing units will favor adaptive reuse of existing housing units through conversion (splitting). This is a reversal of the situation in the last quarter century, when trading up by the dominant Baby Boom generation created strong excess demands for larger housing units and raised the rate of demolition (teardown) of smaller, less-desired housing units Both of these factors will favor reuse rather than wholesale redevelopment or outright abandonment of low-density suburbs. It is reasonable to assume that the average loss rate net of "other additions" will be .2 % per year, which would imply total losses between 2000-2030 of 8.2 million housing units, well below Nelson's estimate of 20.1 million.
In view of the several recent catastrophic hurricanes, a caveat must be attached to this projection. If severe weather events continue to increase due to climate change, stock losses in the coming decades might be increased above what is otherwise expected.
C. Locational Impacts of Housing Adjustments Depend on Specific Dynamics
It is not possible to describe in general the widespread changes that are likely to result from these specific generational changes and slowing rates of housing replacement. That will depend on unique local dynamics in each supply segment. In general, however, we anticipate less construction targeted for young and middle-aged households. Instead, those households will thrive upon the ample supply of housing being released by the growing numbers of older households that will be exiting the market. This recycling will tend to redirect the young to live in locations currently occupied by the old.
D. A Number of Researchable Issues
This review has identified a number of issues that clearly deserve much more research. Among them are the following:
1. Variations in rates of demographic exit from the housing market over time, adding precision to the national index used here.
2. Variations in rates of demographic exit across states and regions and interactions with migration.
3. Variations in rates of demographic exit across race, origin, and nativity.
4. Impacts of the green architecture revolution and rising energy costs on increased dwelling obsolescence and potential increases in replacement rates.
5. Projections of future households to match the range of population projections with a range of plausible household formation (headship) scenarios.
6. How rates of demographic exit from housing are affected by house prices, financing, income, wealth, housing market conditions and levels of mortgage debt.
7. How rates of demographic exit are affected by elder and healthcare options, costs, and financing.
The critical issue of location cuts across all of these issues: Will future excess vacancies cluster, and, if so, will it be in a particular region or in the outer suburbs?
This list can doubtless be expanded. Some topics would require original research, while others could be studied by collecting the results of relevant research in areas such as migration, mobility, housing finance, real estate economics, urban planning, geography, gerontology, and health care planning and synthesizing their implications for housing exit.
A strong case can be made for conducting some of this research by exploiting methods of the subfield of housing demography. The focus of planning interest is the stage of life when rates of exit for purely demographic reasons, e.g., for care or as the result of a death, far exceed sales or moves for other reasons, and there are strong interactions between the purely demographic events and others that may seem to be caused by preferences, such as moves to live near children or after the death of a spouse. Multi-state life table demographic methods are well suited to making the detailed projections for planning purposes at different geographic levels.
The current situation offers transportation and other planners an opportunity to exercise foresight because of the long lead time and relative precision with which a societal need can be foreseen. However, this opportunity carries with it an unusual challenge in that it is one for which there is no true precedent and for which progress may be difficult to measure. That said, planning for "smart reuse" that reduces current and future VMT seems an inherently compelling notion, and there are numerous policy levers that can be used to further such a policy if foresight is exercised, from local zoning and land use planning to provision of home care and transportation and homecare services for the elderly, home finance instruments, and even, potentially, tax incentives, e.g., for "early exit.." Outcomes will be quite different if planning and policy reshape markets (as they did in the New Deal), on the one hand, or if planning remains market-driven, on the other hand.
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CERTIFIED NURSE ASSISTANT (CNA) PROGRAM REVIEW Fall 2008
Section I:
1. Program Purpose and Goals:
The purpose or goal of the certified nurse assistant course is to prepare an individual to function knowledgably and safely as a certified nurse assistant in the State of Missouri.
Department Philosophy
The philosophy of the Division of Allied Health Sciences flows from the College Mission Statement. Faculty believes that in a time of changing health care, the consumer is the central focus with culturally competent care being provided in a community based system. Education is a lifelong experience which promotes awareness of both the freedom and the responsibilities of learning. The division believes students should assume the responsibilities to work toward the attainment of objectives that are defined for each level.
Students/expectations/quality
Students attending CNA classes are employed by area long term care facilities; however, some may be employed in acute care settings after completing the training. They are required by state statute to complete the course and be certified within four months of employment.
The expectation of students varies but most desire to learn the proper way to provide safe direct patient care. Nursing Assistants have a tremendous impact on the care and quality of life of their patient's. Nursing Assistant's are vital to the operation of hospitals, long term care facilities and home health agencies.
NCMC doesn't recruit students for the CNA class since the statute states nursing assistants of long term care facilities are required to enroll, successfully complete the class, and become certified within four months of employment. Turn over rate for CNA's, in long term care facilities, is high. The class consists of 84 hours of theory and lab (taught at NCMC) as well as 100 hours of on the job training (to be completed and supervised in an approved long term care facility). Each class rotation lasts six weeks. At the conclusion of each six week rotation, every student completes an evaluation of
the instructor and the class. These evaluations are reviewed by the instructor and Director of Allied Health Sciences to discuss any recommended changes. This information is then shared with the Dean of Allied Health Sciences.
Students may take the CNA class for college credit, but few do because of the increased cost incurred by the student. According to state statute, long term care facilities are required to pay for the class. If the long term care facility is a member of the AHEC consortium, the annual consortium membership fee is $100. As a member of the consortium, the cost for the long term care facility of sending an individual to the CNA class is$260.00/person; payable to AHEC. If a student does not work for a facility that is a member of the consortium, then the costs per student is $505 (As a note, AHEC pays NCMC $10,400 per year to provide instruction and supplies for the class).
2. What are the intended student outcomes? What are students to learn? How will students use/apply the knowledge and skills they gain in the classroom in the outside world?
The intended outcome is to prepare the student to obtain the knowledge and ability to function safely as a certified nurse assistant in long term care setting. Students are provided the theory component in the classroom setting through lecture, videos, discussion, demonstration, etc. The specific procedures/skills are taught in the lab setting through simulation, demonstration, and practice.
Students learn: the patient's rights, how to perform specific skills (bed making, transferring patient's, feeding patients, vital signs, bathing, weighing and measuring, bowel and bladder retraining, validation therapy, range of motion, etc), things to report to the charge nurse, documentation, appropriate use of restraint's and much more. Students learn not only from the theory portion but from guided practice in the lab. Once the student develops skill proficiency they go to the sending facility and meet the on-the-job training requirement by practicing and applying the knowledge and skills under the facility's trained clinical supervision.
Once the student has completed the 84 hours classroom and the 100 hours of on the job training, they are eligible to take the state certification exam which includes both a written and skills competency section. The student must pass both sections to become certified by the state.
3. What are the "key quality indicators" for your department? Indicators might include such things as student success in subsequent related courses, demonstration of mastery of competencies, student success on other performance measures, or completion of degree program. In other words, what do you use to measure your courses/programs to see if they are successful?
Several CNA students do decide to further their career goals and education by enrolling in the Level I program. Some will even further their education by enrolling in the Level II program. Whether a CNA is successful in the nursing program depends on a lot of different components (reading skills, study habits, responsibilities outside of school, financial obligations, etc). If a student is a current Missouri certified CNA in good standing, they are given credit for Foundations of Nursing I, a two credit hour class. They are required to pass a skills component and successfully complete Foundations of Nursing II before they are given credit for the class.
A record is kept and submitted to AHEC providing the number of students starting each class, number completing the class, the number passing the state certification exam and the number failing the exam. It is important to remember that many CNA students quit their job or are dismissed prior to taking the certification exam. Some long term care facilities do not encourage or arrange for the students to take the exam as soon as they complete the class and their 100 hours of on-the-job training. The longer a person waits to take the certification exam the more it places them at risk for not being successful when they do take it.
The current data shows:
- 128 students started the CNA classes since April 2006
- 103 students completed the CNA classes since April 2006
- 69 passed the state certification exam
- 9 failed the state certification exam
The numbers correlate with the excessively high turn-over rate in long term care facilities prior to students/employees taking the exam. The reasons they leave the facilities vary.
4. What is your program or department's five-year plan? What external and internal factors do you see as influencing your department's outlook for the future? How should your plan change as a result of these factors? What are the most important
goals for your department for the next five years? Consider internal and external facts and review all the data as well as other sections before completing. This information should feed directly into your annual planning and actions plans.
The department plans to continue to partner with AHEC in providing this service (class) for the area long term care facilities. If AHEC decides to end the agreement, then the division and NCMC will decide whether or not it is beneficial to continue to offer the CNA class/program. Even though the department would like to see student numbers grow, NCMC has very little control over the number of individuals hired by the area long term care facilities.
5. If your program or department uses an advisory committee, what were their most recent recommendations on program structure, course offerings and course assessment? Please provide minutes.
The Department of Allied Health Sciences has an advisory board that meets twice a year. The members are comprised of a variety of people who share an interest in health care. Among facilities that are represented on the committee are: hospitals, long term care, educational facilities, government programs that provide financial assistance to the students, prisons, home health services, etc. They all encourage us to continue providing the CNA classes.
Section II:
Admission/Placement and Entry
1. Is enrollment in any course dependent upon student performance on assessment/placement test?
No testing is required but the criterion for admission is:
- Must be employable (not listed on the Missouri Division of Aging Employee Disqualified List) by an ICF/SNF facility
- Must be 18 years of age
2. Have the results on these assessment/placement tests been demonstrated to be related to student success?
Not applicable.
Section III:
Enrollment Trends
See information above
Section IV:
Faculty/Course Sections Information
- 0 – full-time faculty
- 1 – part-time faculty
o Suzanna Hughes
- 0 percentage of student credit hours taught by full-time faculty
- Suzanna does not serve on any committees since she is part-time
Section V:
Curriculum Section
1. How are students explicitly informed of your department's goals/competencies?
The Department of Health and Senior Services mandates the curriculum of the CNA manual. AHEC provides each student and the instructor with a manual. The manual contains the syllabus, handouts, and competency profiles. Students' learn the theory in class, practices each competency in the lab, and is required to demonstrate the competency at the sending facility. The clinical supervisor must document on the pink competency sheet that the student completed the competency with 100% accuracy.
2. Does this department meet with an advisory committee? If so, how are the reasonable recommendations of the committee implements in the department's curriculum?
Yes, the department meets with the advisory committee twice per year. The committee recommendations are taken into consideration and implements what is possible, but the Department of Health and Senior Services mandates we utilize their current CNA manual and instructional methods to teach the class.
3. Please outline your department's practice of advising.
The students meet with the faculty, Director of Allied Health, and/or the Dean of Allied Health to advise them toward their educational goals.
4. How do you assess advising effectiveness? What have you found?
Many of the CNA students have low paying jobs and low self-esteem. Part of the advisement process includes helping them build confidence and realize the importance of their jobs in the long term care facilities. CNA's are vitally important to the patient, the patient's family, and the other members of the health care team. Another part of the advisement process is to make students aware of other educational opportunities.
5. With respect to student progress and retention:
- How do you assess academic progress? Department finals? Classroom assessment techniques? Exit exams? Interviews? What coordination exists to monitor the progress of learning?
Chapter reviews are done in class. Written tests are given with an 80% required to pass. Competencies must be proficiently performed in the lab before a student is able to pass the class. Competencies then must be performed with 100% accuracy in the sending facility in order for the clinical supervisor to document successful completion during the 100 hours of on-the-job training; thus the student is eligible to take the state certification exam.
6. What co-curricular student/faculty opportunities (e.g. honorary organizations, journal clubs, study rooms, interest groups) exist to bind student socially to the department? What specific department efforts are made to promote them? Who leads and who participates?
There are no organizations that these students are eligible to belong to. The instructor will have study groups with the students if they are having trouble understanding the content.
7. Do you have the facilities to achieve the academic goals listed in Section I (e.g. library, computer support and training, laboratories, offices, special equipment or rooms)? What specific department efforts are made to promote them? Who leads and who participates?
The CNA classes are held in Geyer 301. The classroom has a TV/VCR which is used to supplement the class. The specific skills are taught in one of the labs (Geyer 311 or 313). The labs are filled with the equipment and required supplies (blood pressure simulator, gloves, masks, gowns, sphygmomanometer, stethoscope, thermometer, etc). Most of the students do not take this course for college credit, thus they do not apply at NCMC, therefore most of them do not use the library.
8. Are sufficient resources, authority, and flexibility available for this department to accomplish it's goals? Explain.
Since AHEC reimburses NCMC for most of the cost of the CNA program, there are adequate resources to offer this class.
9. If you could fix any two things in your department and could use up to, say $75K to do it, what would be your priorities? How would you begin? Are these reflected in your long range planning and actions plans?
The first priority would have an up to date classroom with technology and the state of the art lab equipment. The rooms on Geyer third floor are not environmentally conducive to learning. The rooms are extremely hot or extremely cold. Pest (bees, ants, birds, etc) control has been a concern on many occasions.
Grants or fund raising would be how the problems could be fixed. The construction of the new allied health building is certainly a start. Filling the building with technology and equipment to make it a state of the art allied health building is the goal.
10. List the courses offered by this program for the past five years. Indicate how many sections were offered by academic year for all and spring semesters by day and evening sections.
The class is offered seven times per year on a recurring cycle. Classes are on Wednesday's and Thursday's for six weeks, then off a week and the cycle starts again.
11. What courses within your department are required for completion of the AA degree? For completion of the 42-hour block?
This is not a degree program. Certification is earned through various agencies from the Department of Health and Senior Services, the Health Education Unit (Missouri Health Care Association, the Missouri Association of Homes for the Aged, the League of Nursing Home Administrators, or the Missouri Assisted Living Association).
12. How do the courses in this department complement or assist other college departments and programs? How do courses in this department meet needs of students in other programs or complement other programs? Explain.
Currently the Division of Allied Health Sciences offers the following programs:
- CNA
- Medical Assistant
o AAS
o Certificate
- Insurance and Billing Specialist – Certificate
- Medical Transcriptionist – Certificate
- Paramedic – AAS
o Health track
o Management track
- Radiology Technology – AAS
- Surgical Technology – AAS
- Pharmacy Technology
o AAS
o Certificate
- Healthcare Management – AAS
We are also developing the following programs with hope of having them in place within the next year or two:
- Dental hygiene – AAS
- BSN through Northwest
- OTA and PTA programs
Other programs are still in the planning phases
13. How does the offering of your course(s) relate to the instruction's current strategic plan?
According to the 2005-2007 NCMC Strategic Plan, the parameters state "listen to the needs of its community" and "always attempt to accommodate students regardless of socioeconomic circumstances".
- The development of the partnership between NCMC and AHEC is a result of listening to the needs of area long term care facilities to offer this class
- The long term care facilities must pay for the class so that allows students with financial concerns the ease of attending the class without worrying who is gong to pay for it
The second objective states "Form and enhance strategic alliances to sustain a dynamic organization". The third objectives states "Tailor our curriculum and services to help individuals meet the challenges of an ever-changing world".
- NCMC and AHEC have formed a strong alliance to offer such a program to meet the needs of the long term care facilities
Course Syllabus and Course Objectives:
1. Are written course syllabi available for all courses? Are all faculty syllabuses turned into the Dean of Instruction's office each semester?
The Department of Health and Senior Services mandates the curriculum which includes written objectives for each lesson. Since this course is not for college credit, a copy of the syllabus is not kept in the Dean of Instruction's office. The Director of Allied Health keeps an updated manual.
2. Indicate the date and nature of recent revision of course syllabi and or course objectives:
The Department of Health and Senior Services with the assistance of Instructional Medical Laboratories update the manual when they deem necessary.
3. How do you ensure that content of each course is up-to-date and at the appropriate level?
See above
4. Does the content of each course provide for the necessary knowledge or competency development?
Each student must achieve certain grades on the exams and must demonstrate proficiency in the skills/competencies before they pass the class and are eligible to take the state certification exam. Students must successfully complete the state written comprehensive exam as well as a skills/competencies exam.
5. Course scheduling information:
Are required courses available in appropriate sequence for day, evening and weekends based on student need?
- The program is offered two days per week. The long term care facilities find it easier to replace this person during the week-day versus evening or week-end so the class is meeting their needs. Long term care facilities are included in developing the class schedule.
- See attached schedule
Do courses incorporate appropriate use of technology?
- It utilizes some technology, such as simulators, TV and VCR.
6. The assessment of student achievement and development of desired competencies:
Explain the methods currently being utilized to assessment student achievement at various levels, such as within individual courses, and at the department level.
Assessment is the key to quality improvement thus the instructor utilizes a variety of assessment techniques to determine student learning has occurred:
- demonstrations
- Written exams
- Clinical skills/competencies
- Group activities
- Oral presentations
7. How are your department's competencies measured in the Final Exam? How do you use the feedback from this exam to improve your department's courses?
The final is comprehensive. After each test and the final, the instructor looks at the questions are missed and analyzes how many students missed the same question. The instructor then decides if she needs to teach that particular subject in another way or spend more time on it. She also passes out an evaluation from AHEC at the end of each class. The evaluation asks the following questions:
- Organization of course
- Instructor's knowledge of subject
- Instructor's attitude toward subject
-
Instructor's ability to explain
- Instructor's speaking ability
- Instructor's attitude toward students
- Instructor's personal peculiarities
- How would you rate this instructor
- The length of the course should be
- Good points of the course
- Weak points of the course that should be improved
- What do you think should have been covered but was not?
- What part of the course helped you the most?
- Was the time of day and hours that the course was offered convenient for you?
- What other times might be considered?
- Should this course be offered again?
- Additional comments concerning the course
Department Review Curriculum History
Not applicable:
North Central Missouri College (NCMC) and Area Health Education Center (AHEC) CNA Class Schedule
Instructor: Suzanna Hughes, RN
Director of Allied Health: Joyce Cutsinger, RN
2008
2008 continued
| Wednesday | Thursday |
|---|---|
| September 10 | September 11 |
| September 17 | September 18 |
| September 24 | September 25 |
| October 1 | October 2 |
| October 8 | October 9 |
| October 15 | October 16 |
| October 22 – make up class | |
| Wednesday | Thursday |
|---|---|
| November 5 | November 6 |
| November 12 | November 13 |
| November 19 | November 20 |
| November 26 | NO CLASS – THANKSGIVING |
| December 3 | December 4 |
| December 10 | December 11 |
| December 17 | December 18 – make up class |
2009
2009 continued
| Wednesday | Thursday |
|---|---|
| April 29 | April 30 |
| May 6 | May 7 |
| May 13 | May 14 |
| May 20 | May 21 |
| May 27 | May 28 |
| June 3 | June 4 |
| June 10 – make up class | |
2009 continued
|
Privacy Statement on the processing of personal data in Procurement and Grant Procedures
1. Context and Controller
The personal information we collect from you ("the data subject") will be processed in line with Regulation (EU) No 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of individuals with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC ("Regulation (EU) No 2018/1725" or "EUDPR").
Your privacy is important to the Community Plant Variety Office ("CPVO" or "Office" or "the controller") and we feel responsible for the personal data that we process on your behalf. Therefore, we are committed to respecting and protecting your personal data and ensuring the efficient exercising of your data subject's rights.
2. What personal data do we process?
Personal data processed can concern the tenderer/applicant, their partners and affiliated entities, subcontractors and their staff (both natural and legal persons). The categories/types of personal data processed are the following:
a) identification data:
- name (first name, surname, previous surname);
- gender, nationality, place and date of birth;
- passport number and ID number;
- signature of person or authorised representative;
- title, position, functions, department and company;
- contact details (website and email address, fax, business and mobile telephone number, official postal address, country of residence);
b) personal data contained in certificates for social security contributions and taxes paid, extracts from judicial records;
c) bank account reference (IBAN and BIC codes), VAT number, national insurance number;
d) a declaration of absence of conflict of interest;
e) a financial identification composed of the name, first name, address and contact details of the natural person owning the account. Should the natural person represent a legal person, he or she should identify the company for which the tenderer works. Same issue if the owner of the account is different from the tenderer/applicant.
f) A financial identification composed of the name, first name, address and contact details of the natural person owning the account. Should the natural person represent a moral person, he or she should identify the company for which the tenderer works. Same issue if the owner of the account is different from the tenderer.
g) Proof of security clearance and declaration of honor that they are not in one of the exclusion situations and/or administrative sanctions referred to in Article 136 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012, hereinafter Regulation 2018/1046.
3. Why do we process your personal data?
The processing operation is necessary to enable the management of procurement and grant procedures and calls for expression of interest with the Office.
4. What are the legal bases and the grounds for lawfulness of processing?
The legal bases for the processing of data are the following:
Article 5.1 (a) of Regulation (EU) No 2018/1725 (processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority);
Article 5.1 (b) of Regulation (EU) No 2018/1725 (processing is necessary for compliance with a legal obligation to which the controller is subject);
Article 5.1 (c) of Regulation (EU) No 2018/1725 (processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract).
Personal data are collected and processed in accordance with the following legal instruments:
- Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union;
- CPVO Financial Regulation;
- The contract or grant agreement awarded.
5. Who is responsible for processing the data?
The processing of personal data is carried out under the responsibility of the the Head of Legal, Procurement and Logistics service.
6. Who has access to your personal data and to whom is it disclosed?
Personal data collected will be treated confidentially and processed solely by authorised staff members dealing with procurement and grant procedures, including staff dealing with financial matters, staff dealing with technical matters and members of the opening and evaluation committees, exclusively for management and administration purposes.
For procurement procedures involving contracts worth more than EUR 144.000, the following data will be published in supplement S of the Official Journal of the European Union and on the website of the Office: name of the contractor, subject matter of the contract, amount legally committed.
For grant procedures: a) the name of the beneficiary; b) the locality of the beneficiary, namely: i. the address of the recipient when the beneficiary is a legal person; ii. the region on NUTS 2 level when the beneficiary is a natural person; c) the amount legally committed; d) the nature and purpose of the grant.
Furthermore, upon request, data may be transferred to the legal advisors of the Office, the European Court of Auditors, the European Anti-Fraud Office (OLAF), the Internal Audit Service of the Office and the Court of Justice. The data transferred is limited to that strictly necessary for managing the procurement and/or grant procedures, or for official investigations or audits.
The personal data are not intended to be transferred to a third country.
For more information about how you can exercise your personal data rights, please see below.
7. How do we safeguard your personal data?
The controller implements appropriate technical and organisational measures in order to safeguard and protect your personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to it.
As regards technical, strategical and other data which may render a tenderer identifiable, these cannot be disclosed without a prior review and decision of the CPVO authorities. CPVO staff members dealing with personal data in the management of log files must sign a confidentiality declaration and/or non-disclosure agreement.
Personal data collected are treated confidentially and processed solely by authorised staff members dealing with procurement, including staff dealing with financial matters and members of the opening and evaluation committees, exclusively for management and administration purposes. If applicable, external experts and contractors assisting the Office with evaluations may be granted access to personal data on a need-to-know basis after signing a Declaration of confidentiality and of absence of conflict of interests.
8. How long do we keep your data?
In accordance with the CPVO Decision of 31 March 2021 on retention period for personal data of candidates in CPVO recruitment procedures and for personal data in the files of CPVO staff members, data relating to unselected candidates to a call for a tender/grant procedure, data will be destroyed after a period of twenty-four months from the date of the decision of the Office appointing the successful candidate. Regarding successful candidates, the data will be at least retained during the whole period of validity of the concerned contract signed.
In accordance with Article 42(5) of the Financial Regulation and Article 21(d) of its Implementing Rules, all financial personal data and supporting documents is kept for five years from the date on which the budget authority, namely, the Administrative Council of the CPVO, grants discharge for the budgetary year to which the documents relate. Personal data contained in supporting documents shall be deleted where possible when those data are not necessary for budgetary discharge, control and audit purposes.
9. How can you obtain access to information concerning you and, if necessary, rectify it? How can you request the erasure of your personal data or restriction of processing or object processing? How can you request to exercise your right to data portability?
If you would like to request to obtain access to information concerning you and, if you think that it is necessary, to correct it, to request the erasure or restriction of processing of your personal data and/or object to processing of it; If you would like to request to receive the personal data concerning you in a structured, commonly used and machine-readable format and to transmit those data to another controller, you may contact us. In exercising your right to data portability, you also have the right to have your personal data transmitted to another controller, where technically feasible.
Right to object: We are using your personal data because we believe that it is necessary for the performance of a task carried out in the public interest on the basis or in the exercise of official authority vested in the CPVO. In case you disagree with the processing of your personal data, based on the aforementioned lawful ground, you have the right to object, at any time.
Right to access: You have the right to access and confirm what personal data we hold about you, at any time.
Right to rectification: You also have the right to correct inaccurate personal data.
Right to erasure: You have the right to "erase" your personal data.
Right to data portability: You have the right to receive your personal data, which we have collected from you based on your consent, from us and to transfer or have it transferred (where it is technically feasible) to another controller.
Right to restrict the processing: When certain conditions apply, you have the right to request that we restrict the processing activities relating to your personal data.
If you would like to exercise any of these rights, please send us your request. We will provide information on action taken on your request without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. We shall inform you of any such extension within one month of receipt of the request, together with the reasons for the delay.
In case you wish to request access to your personal data, to verify which personal data we store on your behalf, have it modified, erased, restrict the processing, exercise your right to data portability, object or withdraw consent, please make use of the contact information mentioned, by explicitly and accurately describing your request.
In principle, we cannot accept verbal requests (telephone or face-to-face) as we may not be able to deal with your request immediately without first analysing it and reliably identifying you. Requests can be sent to the controller: Head of the Legal, Procurement and Logistics service by e-mail at email@example.com.
10. Who should you contact if you have a question about the protection of personal data or in case you would like to lodge a complaint?
Should you have any queries in relation to the processing of your personal data, please address these to the data Controller, at the following email address: firstname.lastname@example.org.
You may also consult the CPVO's Data Protection Officer: email@example.com.
Complaints, in cases where the conflict is not resolved by the controller and/or the Data Protection Officer, can be addressed at any time to the European Data Protection Supervisor: firstname.lastname@example.org.
|
AGENDA
May 24, 2011
9:00 A.M.
Chambers – Basement Level 1010 10 th Street 1010 10 Modesto, California th Street www.stancounty.com/board/index.shtm
The Board of Supervisors welcomes you to its meetings which are regularly held each Tuesday, and your interest is encouraged and appreciated.
PUBLIC COMMENT PERIOD: Matters under the jurisdiction of the Board, and not on the posted agenda, may be addressed by the general public at the beginning of the regular agenda and any off-agenda matters before the Board for consideration. However, California law prohibits the Board from taking action on any matter which is not on the posted agenda unless it is determined to be an emergency by the Board of Supervisors. Any member of the public wishing to address the Board during the "Public Comment" period shall be permitted to be heard once for up to 5 minutes. Please complete a Public Comment Form and give it to the Clerk of the Board.
The agenda is divided into two sections:
CONSENT CALENDAR: These matters include routine financial and administrative actions and are identified with an asterisk (*). All items on the consent calendar will be voted on as a single action at the beginning of the meeting under the section titled "Consent Calendar" without discussion. If you wish to discuss an item on the Consent Calendar, please notify the Clerk of the Board prior to the beginning of the meeting or you may speak about the item during Public Comment Period.
REGULAR CALENDAR: These items will be individually discussed and include all items not on the consent calendar, all public hearings and correspondence.
ANY MEMBER OF THE AUDIENCE DESIRING TO ADDRESS THE BOARD ON A MATTER ON THE AGENDA: Please raise your hand or step to the podium at the time the item is announced by the Board Chairperson. In order that interested parties have an opportunity to speak, any person addressing the Board will be limited to a maximum of 5 minutes unless the Chairperson of the Board grants a longer period of time.
BOARD AGENDAS AND MINUTES: Board agendas, Minutes, and copies of items to be considered by the Board of Supervisors are typically posted on the Internet on Friday afternoons preceding a Tuesday meeting at the following website: www.stancounty.com/bos/agenda-minutes.shtm.
Materials related to an item on this Agenda submitted to the Board after distribution of the agenda packet are available for public inspection in the Clerk's office at 1010 10 th Street, Suite 6700, Modesto, CA during normal business hours. Such documents are also available online, subject to staff's ability to post the documents before the meeting, at the following website www.stancounty.com/bos/agenda-minutes.shtm.
AUDIO/VIDEO BROADCAST: All Board meetings are normally broadcast live and replayed on local cable television. A list of cable channels and broadcast times are available at the following website: www.stancounty.com/board/broadcasting-schedule.shtm. In addition, a live audio/video broadcast of this meeting can be heard/seen via the World Wide Web at: www.stancounty.com/bos/board-video.shtm.
NOTICE REGARDING NON-ENGLISH SPEAKERS: Board of Supervisors meetings are conducted in English and translation to other languages is not provided. Please make arrangements for an interpreter if necessary.
REASONABLE ACCOMMODATIONS: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Clerk of the Board at (209) 525-4494. Notification 72 hours prior to the meeting will enable the County to make reasonable arrangements to ensure accessibility to this meeting.
I. Pledge of Allegiance to the Flag I. Pledge of Allegiance to the Flag
BOARD OF SUPERVISORS
William O'Brien,1 st District
Vito Chiesa,2 nd District
Terry Withrow,3
rd
District
Dick Monteith,4
th
District
Jim DeMartini,5
th
District
1010 10th Street, Suite 6500
Modesto, CA 95354
Phone: 209.525.4494 Fax: 209.525.4420
II. Moment of Silence for Agricultural Commissioner & Sealer of Weights and Measures Employee Cynthia Darmstandler
III. Public Comment Period
IV. Consent Calendar
V. Agenda Items
A. Miscellaneous
* 1. Approval of the Minutes for May 17, 2011 (View Item)
* 2. Approval to Adopt and Waive the Second Reading of Ordinances:
a. C.S. 1099 to Amend Transit Fares for Stanislaus Regional Transit (StaRT) – Public Works (View Item)
b. C.S. 1100 to Establish New and Amend Existing Fees of the Department of Parks and Recreation (View Item)
* 3. Approval of Appointment of Karen Gorne to the Salida Municipal Advisory Council (View Item)
* 4. Approval to Declare a Vacancy on the:
a. Child Abuse Prevention Council of Stanislaus County (View Item)
b. Stanislaus Economic Development and Workforce Alliance (View Item)
* 5. Approval to Proclaim June 15, 2011 as Elder and Dependent Adult Abuse Awareness Day in Stanislaus County (View Item)
* 6. Approval of a Commendation for Dr. Peter Broderick Upon being Named the California Academy of Family Physicians' 2011 Family Physician of the Year (View Item)
B. Chief Executive Office
* 1. Approval to Adopt the Recommended Decision of the Nuisance Abatement Hearing Board Regarding the Cost Accounting to Abate the Nuisance at 6155 Foote Road, Ceres, California and Barnhart Road, Ceres, California, Case Number 782009-ABT – Agricultural Commissioner (View Item)
* 2. Approval to Adopt the Recommended Decision of the Nuisance Abatement Hearing Board Regarding CE No. 11-0027 at 4418 Crow Road, Waterford, California – Environmental Resources (View Item)
* 3. Approval and Authorization for the Agricultural Commissioner to Sign the Fiscal Year 20112012 Cantaloupe Surveillance Contract with the California Cantaloupe Advisory Board – Agricultural Commissioner (View Item)
* 4. Approval and Authorization for the Agricultural Commissioner to Sign the Asian Citrus Psyllid Contract with the California Department of Food and Agriculture for Fiscal Years 2010-2011 and 2011-2012 – Agricultural Commissioner (View Item)
* 5. Approval to Retain the Certified Public Accounting Firm of Brown Armstrong Accountancy Corporation to Conduct the Annual County Audit for Fiscal Year Ending June 30, 2011 – Auditor-Controller (View Item)
* 6. Approval of Agreements for Mental Health, Alcohol and Other Drug, and Ancillary Services for Fiscal Year 2011-2012 – Behavioral Health and Recovery Services (View Item)
* 7. Approval to Accept the Fourth Update on Flooding in Various Locations in Stanislaus County and Approval to Continue the Countywide Declaration of a Local Emergency – Chief Executive Office (View Item)
* 8. Approval of the Stanislaus Child Development Local Planning Council 2011-2012 Priorities Report – Community Services Agency (View Item)
* 9. Approval to Adopt Retirement Contribution and Interest Rates for Fiscal Year 2011-2012 – StanCERA (View Item)
* 10. Approval of Revisions to the Stanislaus County Employees' Retirement Association (StanCERA) Bylaws – StanCERA (View Item)
* 11. Acceptance of the Stanislaus County Treasury Pool's April 2011 Monthly Investment Report – Treasurer-Tax Collector (View Item)
* 12. Approval of the Distribution of Excess Proceeds of $172,074.67 from the February 24, 2010 Sale of Tax-Defaulted Properties – Treasurer-Tax Collector (View Item)
* 13. Approval to Set a Public Hearing for June 28, 2011, at 9:05 a.m., to Consider Adjustments to Stanislaus County Franchise Maximum Rates for Solid Waste Collection Services – Environmental Resources (View Item)
* 14. Approve a Memorandum of Understanding (MOU) for Cost Reimbursement and Indemnification Related to the PCCP WestPark, LLC Development Proposal at and Adjacent to the Former Crows Landing Air Facility – Chief Executive Office (View Item)
* 15. Approval for the Chairman of the Board of Supervisors to Sign a Letter of Support for Hutton House, Center for Human Services – Chief Executive Office (View Item)
16. Approval to Adopt the Stanislaus County Multi-Jurisdictional Hazard Mitigation Plan – Office of Emergency Services/Fire Warden (View Item)
18. Approval to Update the Public Safety Center Master Plan, Initiate Design for the Development of Plans and Specifications for the Replacement of Lost Jail Beds from the June, 2010 Honor Farm Fire and Related Actions Including Recommended Budget Adjustments – Chief Executive Office (View Item)
17. Conditional Approval of the Transition of Office of Emergency Services/Fire Warden Employees to the New Modesto Regional Fire Authority Joint Powers Agency Including a Reduction-in-Force Action of Three Full-Time Filled Positions Effective June 21, 2011 – Chief Executive Office (View Item)
C. Department of Public Works
* 1. Approval of the Transit Transportation Development Act Claim for Budget Year 2011-2012 (View Item)
* 2. Approval to Reject Apparent Low Bid Submitted by MCI Engineering, Inc. for the Hatch Road at Crows Landing Road Traffic Signal Upgrade Project and Award the Construction Contract to Granite Construction Company of Watsonville, California (View Item)
* 3. Approval to Enter into a Memorandum of Understanding with the City of Patterson for the Design, Development and Construction of Restroom Facilities at the Patterson Intermodal Bus Transfer Facility (View Item)
* 4. Approval to Adopt a Resolution Initiating Proceedings for Considering the Formation of the Kenwood Park Lighting District and For the Use of Community Development Funds for Initial Costs Associated with the Formation (View Item)
* 5. Approval to Set a Public Hearing on July 12, 2011 at 9:05 a.m. to Consider the Formation of County Service Area (CSA) No. 29 Bangs Summit, the Levy of an Annual Specific Benefit Assessment; and the Dissolution of CSA No. 20 Summit (View Item)
D. Department of Planning and Community Development
* 1. Approval to Adopt the Recommendations from the Nuisance Abatement Hearing Board's Public Hearing Regarding Dangerous Building Case DAD2011-00003 Located at 510 Hatch, Modesto, California (View Item)
* 2. Approval to Set a Public Hearing for June 14, 2011 at 9:05 a.m. to Consider Lot Line Adjustment Application No. 2010-26 and Williamson Act Cancellation Application No. 2010-03, Garner (View Item)
E. County Counsel
VI. Scheduled Matters
VII. Correspondence
1. This Board has received a letter from the Oakdale Fire Protection District requesting transfer of the Stanislaus County Redevelopment Agency funds for the Valley Home Project Plan to the District. (Recommendation: Refer to the Chief Executive Office and the Department of Planning and Community Development.) (View Item)
2. This Board has received a copy of the Fire/Life Safety Inspection Report for the Stanislaus County
Juvenile Hall, and the County Jail on 12
th
Street in Modesto.
(Recommendation: Refer to the Department of Environmental Resources.) (View Item)
3. This Board has received a letter from Stanislaus Consolidated Fire Protection District requesting dry period funding for Fiscal Year 2011-12. (Recommendation: Refer to the Auditor-Controller.) (View Item)
4. This Board has received a notice regarding the San Joaquin River National Wildlife Refuge Proposed Expansion Planning Update #1 from the U.S. Fish & Wildlife Service. (Recommendation: Refer to the Department of Environmental Resources, Fish and Wildlife Commission, and Public Works Department.) (View Item)
5. This Board has received information from the San Joaquin River Restoration Program regarding the availability of the Draft Program Environmental Impact Statement/Environmental Impact Report for the Program.
(Recommendation: Refer to the Department of Environmental Resources, Fish and Wildlife
Commission, and Public Works Department.) (View Item)
6. This Board has received a letter from Oakdale Fire Protection District requesting dry period funding for Fiscal Year 2011-12. (Recommendation: Refer to the Auditor-Controller.) (View Item)
7. This Board has received the following claims: Michael William Moore; Debra Harper (2); Richard Crouch; Kathleen Crouch; George M. Morris; Maria Garcia; and, Guillermo Brambila Rodriguez. (Recommendation: Acknowledge receipt of claims and refer to the Chief Executive Office - Risk Management Division.)
VIII.Board of Supervisors' Reports
IX. Legislative, Fiscal and Management Report – Chief Executive Officer
* A. Approval for the Board of Supervisors to Sign a Letter of Support of the Relicensing of the Don Pedro Project by the Modesto and Turlock Irrigation Districts (View Item)
X. Sitting as the Stanislaus County In-Home Supportive Services (IHSS) Public Authority (View Item)
I. Call to Order
II. Consent Calendar (Those items marked with an *)
*A. Approval of Minutes of April 5, 2011
III. Correspondence
A. None
IV. Public Hearings
A. None
V. Agenda Items
A. Approval of the Labor Agreement Between the In-Home Supportive Services Public Authority of Stanislaus County and the United Domestic Workers of America Representing Stanislaus County In-Home Supportive Services Providers
VI. Public Forum
VII. Adjournment
XI. Adjournment
XII. Closed Session: Conference with Labor Negotiator - Agency Negotiator: Richard Robinson. Labor Organizations: California Nurses' Association (CNA); Stanislaus County Employees Association (SCEA)/AFSCME Local 10; Service Employees' International Union (SEIU), Local 521; County Attorneys' Association (CAA); Deputy Sheriffs' Association (DSA); Stanislaus County Sheriffs Supervisors' Association (SCSSA); Stanislaus County Deputy Probation Officers' Association; Stanislaus Regional Emergency Dispatchers' Association; Stanislaus County Group Supervisors' Association; Stanislaus County Sheriff Management Association; Stanislaus County District Attorney Investigators' Association; and, Stanislaus Sworn Deputy Association (SSDA). Government Code Section 54957.6.
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
No. 12-10196
D.C. No.
4:09-cr-00167-
DLJ-1
No. 12-10217
D.C. No. 4:09-cr-00167DLJ-1
v.
EDWARD LEE SULLIVAN, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellant, v.
EDWARD LEE SULLIVAN, Defendant-Appellee.
OPINION
Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding
Argued and Submitted January 14, 2014—San Francisco, California
Filed May 28, 2014
Before: Richard C. Tallman and Sandra S. Ikuta, Circuit Judges, and Beverly Reid O'Connell, District Judge. *
Opinion by Judge Ikuta
SUMMARY **
Criminal Law
The panel affirmed in part and reversed in part a criminal judgment in a case in which the defendant was convicted under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a fourteenyear-old girl.
The panel held that venue in the Northern District of California for the production count was not improper. The panel also held that National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), does not undermine this court's precedent that Congress may regulate even purely intrastate production of child pornography and criminalize its intrastate possession.
The panel held that the district court did not err in denying the defendant's motion to suppress evidence obtained from his laptop computer. Balancing the nature of
* The Honorable Beverly Reid O'Connell, United States District Court Judge for the Central District of California, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
the intrusion into the defendant's possessory interests against the governmental interests justifying the intrusion, the panel concluded that the government's seizure and retention of the laptop for 21 days before obtaining a search warrant was, under the totality of the circumstances, not unreasonable under the Fourth Amendment.
The panel held that the conduct proscribed by Cal. Penal Code § 261.5(d) (unlawful sexual intercourse with a minor under 16 years of age) and Cal. Penal Code § 288a(b)(2) (oral copulation with a minor under 16 years of age) is categorically a conviction "under the laws of any State relating to . . . sexual abuse" for purposes of 18 U.S.C. §§ 2251(e) and 2252(b)(2), and that the district court therefore properly applied the mandatory minimum enhancement provisions contained in §§ 2251(e) and 2252(b)(2).
On the government's cross-appeal, the panel held that the district court erred in its legal analysis when sustaining the defendant's objection to the inclusion of a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The panel remanded for resentencing because it could not tell if the district court would impose the same sentence if it applied the correct legal analysis.
COUNSEL
John J. Jordan, San Francisco, California, for DefendantAppellant.
Anne Voigts (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere,
Assistant United States Attorney, San Francisco, California, for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Edward Sullivan was convicted of violations under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a fourteenyear-old girl. He raises multiple challenges to these convictions, as well as to the mandatory minimum sentences imposed under 18 U.S.C. §§ 2251(e) and 2252(b)(2). The government cross appeals, arguing that the district court miscalculated Sullivan's Sentencing Guidelines range. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm in part and reverse in part. 1
I
Sullivan's use of fourteen-year-old Erika Doe to produce the sexually explicit video at issue in this case was not the first time he engaged in sex-related conduct with a minor. In 2001, Sullivan was convicted in Nevada of conspiracy to commit pandering involving a 13-year-old girl. In 2002, Sullivan was convicted in California of four offenses involving a 14-year-old female victim: (1) unlawful sexual intercourse with a minor in violation of California Penal Code § 261.5(d); (2) oral copulation with a minor in violation of
1 We resolve Sullivan's remaining claims in a concurrently filed memorandum disposition. United States v. Sullivan, – F. App'x – (9th Cir. 2014).
California Penal Code § 288a(b)(2); (3) pimping in violation of California Penal Code § 266h(a); and (4) pandering in violation of California Penal Code § 266i(a)(2). Sullivan was sentenced to 140 months imprisonment for the California convictions.
In November 2007, Sullivan was released on parole. As a parolee, Sullivan was subject to a range of standard and special parole conditions. Among the standard parole conditions was a consent to search, which stated: "You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." In addition, Sullivan was subject to a number of special parole conditions, which (among other things) prohibited him from having any contact with females between the ages of 14 and 18 years, and provided that "[a]ny computer or mobile telecommunications device under your control, or [to] which you have access, is subject to search and seizure by your Parole Agent." The California Department of Corrections gave Sullivan notice of these conditions, which Sullivan acknowledged by signing the notice form and initialing each of the special conditions.
Sullivan took up temporary residence at the Bay Breeze Inn located in Oakland, California. In March 2008, about four months after his release, Sullivan approached Erika, a fourteen-year-old girl who was standing on a street in Berkeley, California, with her friends after school. After Erika and Sullivan talked, she left with Sullivan in his car. Erika stayed with Sullivan for the next two weeks. On the first night, Sullivan took Erika to the house of Kimberlea Reed, a friend of his who lived in Vacaville, California. Reed knew that Sullivan was not allowed to have contact with minor girls, and when Erika failed to produce a license proving she was 18 years old, Reed told Sullivan not to bring Erika to her home. For the next two weeks, Sullivan and Erika stayed at the Bay Breeze Inn or in Sullivan's car, but returned at least once to the house in Vacaville. While at the Bay Breeze Inn, Sullivan had sex with Erika.
The district court found that during this period, Sullivan became the dominating force in Erika's life, and controlled all of her daily activities. Among other things, Sullivan replaced Erika's clothing with more adult and sophisticated outfits and paid to have her hair straightened and amplified with extensions. Erika testified that she was afraid of Sullivan, a large man in his forties, about six feet five inches tall and 250 pounds.
Over the course of the two weeks that Erika remained with Sullivan, he took numerous videos and still photographs of Erika in various poses. In several of the videos, Sullivan discussed prostitution with Erika. In one video, Sullivan discussed a past incident where he had "checked" or punished Erika because she had tried to leave him. Sullivan uploaded one of the still photographs of Erika onto an adult website, "Fungirlsplay," using his name and e-mail address.
On March 9, 2008, Sullivan returned to the house in Vacaville where he made the sex video at issue in this case using a digital camera that had been manufactured in China and exported to the United States. According to the district court, the video, 100_0064.mov, showed Erika performing oral sex on Sullivan. Erika's face was clearly visible in the video, and a man's voice could be heard in the background, directing and describing the activities that were taking place. At trial, Erika testified that Sullivan had shot and narrated the video, and is also the man seen in the video. This sex video was later uploaded to Sullivan's laptop computer. After the video was produced, Sullivan recorded and narrated two other videos, one of which showed Erika naked from the waist up, and the other showed Sullivan questioning Erika regarding whether she wanted to be a porn star.
On March 17, 2008, an Oakland police officer saw Erika standing on the street in an area frequented by prostitutes. Suspecting she was engaging in prostitution, the officer stopped her for questioning. In response to a question about Sullivan, who was standing nearby, Erika denied he was her pimp. Although the Oakland police stopped and questioned Sullivan, they did not arrest him. The officer took Erika into custody, and after learning that she was the subject of a missing persons report, returned her to her mother. Once Erika was home, her mother took her to the hospital, where Erika made a statement to the police. Because the initial abduction occurred in Berkeley, jurisdiction over the investigation was transferred to the Berkeley Police Department.
About a week later, on March 24, 2008, Erika's mother contacted Sullivan's parole officer and reported that Sullivan had kidnaped, raped, and pimped her daughter. Based on this report, Sullivan's parole was revoked. On March 25, 2008, parole officers arrested Sullivan in his car outside of the Bay Breeze Inn. During a parole search of the car, the agents seized several items, including the laptop computer, digital camera, a book about pimping, and a cellular telephone. The parole officers took Sullivan into custody and charged him with eight parole violations, including that Sullivan forced Erika to engage in intercourse and had kept pornographic images on his cellular telephone, in violation of his parole conditions. 2 On April 2, 2008, the parole officers transferred custody of the evidence to the Berkeley Police Department because the California Department of Corrections did not have the technical ability to conduct a forensic search of the laptop.
On April 10, 2008, Detective Kaplan and Sergeant Ross of the Berkeley Police Department interviewed Sullivan at the jail where he was being held. Sullivan claimed that in one of the videos on his laptop, Erika stated that she was 19 years old. Sullivan agreed that the police should view the video to corroborate his belief about Erika's age. He stated, "Look in the computer. I give you consent." Sullivan also signed a consent form. 3 On April 15, 2008, Detective Kaplan also obtained a search warrant to search the laptop. A forensic search of Sullivan's laptop revealed the sex video at issue in this case.
2 On April 14, 2008, Sullivan agreed to a disposition of the violation charges.
3 This consent form stated:
I, Edward Sullivan, give Officer Kaplan and Sgt. Ross of the Berkeley Police Department permission to search through all files, hard drives and all information contained on my computer that was taken from me by Agent Tran [, a parole officer,] when I got arrested. Including all drives, internal and external storage devices.
I give this permission and consent freely. I was not coerced.
I also give consent to search my camera.
The federal government filed a two-count indictment against Sullivan in the Northern District of California on February 18, 2009. Count 1 charged Sullivan with production of child pornography pursuant to 18 U.S.C. § 2251(a). Count 2 charged Sullivan with possession of child pornography pursuant to 18 U.S.C. § 2252(a)(4)(B). Sullivan entered a plea of not guilty, and later waived his right to a jury trial.
Before trial, Sullivan moved to suppress the evidence obtained from his laptop computer. Relevant to this appeal, he argued that the 21-day delay between March 25, 2008, the date the parole officers seized the laptop, and April 15, 2008, the date the police obtained a warrant, was unreasonable, and therefore the search and seizure of the laptop violated his Fourth Amendment rights. The district court denied the motion.
The bench trial commenced on December 14, 2010. At the close of the government's case-in-chief, Sullivan moved to dismiss Count 2 (possession of child pornography under § 2252(a)(4)(B)) because the sex video was not sufficiently connected to interstate commerce, and moved to dismiss Count 1 (production of child pornography under § 2251(a)) for lack of venue, because the video had been filmed in Vacaville (in the Eastern District of California), and the district court was in the Northern District of California. The district court denied both motions.
At the conclusion of the 13-day bench trial, the district court found Sullivan guilty on both counts. The district court found incredible Sullivan's testimony that he did not know
Erika was a minor, given that Erika's physical appearance made it clear that she was an adolescent. 4
During the sentencing phase of the proceeding, the district court determined that the mandatory minimum enhancement provisions contained in the two statutes of conviction, see 18 U.S.C. §§ 2251(e), 2252(b)(2), applied to Sullivan based on his California convictions for unlawful sexual intercourse with a minor and oral copulation with a minor, see Cal. Penal Code §§ 261.5(d), 288a(b)(2). The district court also ruled on Sullivan's objection to the two-level Guidelines enhancement for obstruction of justice recommended in the Presentence Investigation Report (PSR). Despite having found Sullivan's testimony "not credible" and "not true," the district court sustained the objection and declined to increase Sullivan's offense level from 36 to 38.
The district court sentenced Sullivan to the mandatory minimum 25 years imprisonment for the conviction under § 2251(a) and the mandatory minimum 10 years imprisonment for the conviction under § 2252(a)(4)(B), to be served concurrently, followed by a lifetime of supervised release. Sullivan timely appealed his convictions and sentence. The government cross appealed the district court's ruling regarding the obstruction enhancement.
II
We begin by addressing Sullivan's threshold arguments that the district court erred in denying his motion to dismiss
4 Sullivan filed several post-verdict motions, one of which reiterated his arguments that the district court lacked jurisdiction and venue. The district court concluded there was no basis to revisit its prior rulings.
Count 1 of the indictment (production of child pornography under 18 U.S.C. § 2251(a)) for improper venue, and his motion to dismiss Count 2 of the indictment (possession of child pornography under 18 U.S.C. § 2252(a)(4)(B)) for lack of federal jurisdiction.
A
Sullivan argues that the district court was required to dismiss the production of child pornography count, 18 U.S.C. § 2251(a), for lack of venue in the Northern District of California because Sullivan produced the sex video at issue in the Eastern District of California. We review the district court's venue determination de novo. United States v. Gonzalez, 683 F.3d 1221, 1224 (9th Cir. 2012).
The Constitution provides that the trial in a criminal prosecution shall be in the "[s]tate where the said [c]rimes shall have been committed." U.S. Const. art. III, § 2, cl. 3; see also Fed. R. Crim. P. 18 ("Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed."). Under 18 U.S.C. § 3237(a), offenses "begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." To determine whether a crime is a continuing offense for purposes of § 3237, "a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." United States v. Stinson, 647 F.3d 1196, 1204 (9th Cir. 2011) (quoting United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999)). "Venue is proper under § 3237 when an 'essential conduct element' of the offense continues into the charging district." Id. (quoting Rodriguez-Moreno, 526 U.S. at 280–82).
Here, the conduct constituting the elements of a § 2251(a) offense include: (1) employing, using, persuading, inducing, enticing or coercing any minor to engage in "any sexually explicit conduct"; (2) "for the purpose of producing any visual depiction of such conduct"; (3) if the depiction "was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce." 18 U.S.C. § 2251(a). Sullivan engaged in conduct constituting the offense in both the Northern and Eastern Districts of California. First, the district court found that Sullivan "established and maintained physical and mental control over the relationship between himself and the girl from the time she first entered his car" in Berkeley, which is in the Northern District, and used this control to coerce her into making a sex video. Second, the court found that Sullivan used his control over Erika to induce her to produce the sex video at issue (the second element of the § 2251(a) offense) in Vacaville, which is in the Eastern District. Accordingly, Sullivan's conduct constituting the § 2251(a) offense spanned more than one district. Sullivan argues that his interactions with Erika in the Northern District of California were merely preliminary, or were for the sole purpose of recruiting Erika to become a prostitute, and therefore were not essential steps towards making the video. This argument is meritless; the evidence adduced at trial supports the district court's findings that the persuasion, inducement, enticement and coercion that led to the video's filming in Vacaville had their genesis in the Northern District. See United States v. Engle, 676 F.3d 405, 417–18 (4th Cir. 2012) (holding that venue for a violation of § 2251(a) is proper in the district where a defendant entices the victim to engage in sexual conduct, even though the defendant created the video at issue in a different district). Therefore, venue was proper in the Northern District of California under § 3237(a).
B
We next address Sullivan's argument that Congress lacks the authority to regulate purely intrastate production and possession of a single video, and therefore neither § 2251(a) nor § 2252(a)(4)(B) can constitutionally be applied to him. 5 We have previously rejected this argument, concluding that Congress could rationally "conclude that homegrown child pornography affects interstate commerce," and therefore Congress may regulate even purely intrastate production of child pornography, see United States v. McCalla, 545 F.3d 750, 755–56 (9th Cir. 2008), and criminalize its intrastate possession, United States v. Gallenardo, 579 F.3d 1076, 1081 (9th Cir. 2009). Nevertheless, Sullivan claims that the Supreme Court's recent decision in National Federation of Independent Business v. Sebelius (NFIB), 132 S. Ct. 2566 (2012), requires us to overrule this precedent. We disagree. Chief Justice Roberts's separate opinion in NFIB stated that the Commerce Clause did not give Congress authority to "compel[] individuals to become active in commerce by purchasing a product." Id. at 2587 (emphasis omitted). The four dissenting justices agreed that "one does not regulate
5 Following the government's completion of its case-in-chief in the bench trial, Sullivan moved for acquittal on Count 1 of the indictment on the ground that it could not be constitutionally applied to him, but he did not challenge Count 2 on this basis. We review a sufficiency of the evidence challenge that is first brought on appeal for plain error. United States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
commerce that does not exist by compelling its existence." Id. at 2644 (Scalia, J., dissenting). Accordingly, five justices agreed that the Commerce Clause gives Congress authority only to regulate commerce, not to compel it. This precedent is not applicable here, however, because § 2251 and § 2252 do not compel commerce, but merely regulate an activity that Congress could rationally determine would affect interstate commerce, taken in the aggregate. See Gallenardo, 579 F.3d at 1081; McCalla, 545 F.3d at 755–56. Because NFIB is not "clearly irreconcilable" with our precedents, they remain binding. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also United States v. Sheldon, No. 12-30324, – F.3d –, 2014 WL 1378122 (9th Cir. Apr. 9, 2014) (concluding that because the recorder used to produce child pornography was manufactured in China, there was "sufficient [evidence] to satisfy the jurisdictional element of § 2251(a)"). Accordingly, § 2251(a) and § 2252(a)(4)(B) are constitutional as applied to Sullivan.
III
We next consider Sullivan's argument that the district court erred in denying his motion to suppress evidence obtained from his laptop computer. He claims that under the reasoning in United States v. Dass, 849 F.2d 414 (9th Cir. 1988), and the Eleventh Circuit's decision in United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) (per curiam), the government's unexplained 21-day delay in obtaining a search warrant was unreasonable, and therefore violated his Fourth Amendment rights. 6 We review de novo the denial of
6 Sullivan's suppression motion in the district court pertained to evidence obtained from his laptop computer. To the extent Sullivan claims on appeal that evidence obtained from his digital camera should
Sullivan's suppression motion. United States v. Hernandez, 313 F.3d 1206, 1208 (9th Cir. 2002). We review the district court's factual findings for clear error. United States v. Gill, 280 F.3d 923, 928 (9th Cir. 2002).
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. An unreasonable delay between the seizure of a package and obtaining a search warrant may violate the defendant's Fourth Amendment rights. The touchstone is reasonableness. See United States v. Van Leeuwen, 397 U.S. 249, 252–53 (1970). We "determine whether the delay was 'reasonable' under the totality of the circumstances, not whether the Government pursued the least intrusive course of action." Hernandez, 313 F.3d at 1213. Such determinations are made on a case-by-case basis. See Van Leeuwen, 397 U.S. at 253.
The Supreme Court has adopted a balancing test to determine whether a seizure is reasonable. We must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."
have also been suppressed, this argument is waived. See Fed. R. Crim. P. 12(b)(3)(C), (e) (providing that a party waives any objection that must be made in a pretrial motion, including a motion to suppress evidence, by failing to raise it at the proper time); see also United States v. Davis, 663 F.2d 824, 831 (9th Cir. 1981) (motions to suppress evidence must be raised prior to trial). "Although we may grant relief from a waiver if the defendant present[s] a legitimate explanation for his failure to raise the issue in a timely manner," United States v. Mausali, 590 F.3d 1077, 1080–81 (9th Cir. 2010) (internal quotation marks omitted), Sullivan has presented no such legitimate explanation here.
United States v. Place, 462 U.S. 696, 703 (1983). In balancing these interests, courts may consider whether the individual consented to a seizure and search. See, e.g., United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011). "Where a person consents to search and seizure, no possessory interest has been infringed because valid consent, by definition, requires voluntary tender of property." Id.; see also United States v. Christie, 717 F.3d 1156, 1163 (10th Cir. 2013); United States v. Laist, 702 F.3d 608, 618 (11th Cir. 2012). Courts may also consider a defendant's parolee status. See Samson v. California, 547 U.S. 843, 849–50 (2006) (parolee status significantly diminishes privacy interests); see also Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68–69 (1992) (holding that intrusions into possessory and privacy interests resulting from a seizure must satisfy similar Fourth Amendment standards).
In applying this balancing test to the seizure of Sullivan's laptop, we start by considering the extent of the intrusion on Sullivan's possessory interests given the totality of the circumstances. We conclude they were minimal. During the entire time period when the laptop was retained by the government, Sullivan was in custody on eight parole violation charges. He does not claim that he could have made use of the laptop while incarcerated or that he sought return of his laptop to himself or a third party. Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced. See United States v. Segura, 468 U.S. 796, 813 (1984) (Burger, C.J.) (plurality opinion) (holding that defendants' possessory interests in their apartment were "virtually nonexistent" when they "were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment"); see also United States v. Clutter, 674 F.3d 980,
984–85 (8th Cir. 2012) (determining that when defendant was in jail at the time of the seizure of his computer, the seizure "did not meaningfully interfere with his possessory interests"). Moreover, an individual who did "not even allege[], much less prove[], that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment" and "never sought return of the property" has not made a sufficient showing that the delay was unreasonable. United States v. Johns, 469 U.S. 478, 487 (1985).
Further, several of the factors that reduce an individual's possessory interest applied here. Some seventeen days after his laptop was seized, Sullivan gave his express consent to the search of his laptop, and indeed urged the police officers to review videos stored on the laptop, claiming they contained exculpatory evidence. Because such consent "requires voluntary tender of property," Stabile, 633 F.3d at 235, it further vitiates his claim that any possessory interest was infringed. Moreover, because Sullivan was a parolee subject to a consent condition for seizure, his possessory interest in the laptop was reduced. Cf. Samson, 547 U.S. at 850; United States v. Knights, 534 U.S. 112, 119 (2001). Under these circumstances, "[t]he actual interference" with Sullivan's possessory interests was minimal. See Segura, 468 U.S. at 813 (Burger, C.J.) (plurality opinion).
We next consider the degree to which the seizure and retention of the laptop was necessary for the promotion of legitimate governmental interests. Place, 462 U.S. at 703–04. The state "has an overwhelming interest in supervising parolees because parolees . . . are more likely to commit future criminal offenses." Samson, 547 U.S. at 853 (internal quotation marks omitted). Moreover, under the circumstances of this case, the government had a reasonable basis for retaining and searching the laptop based on the likelihood that it contained evidence of Sullivan's parole violations, as well as child pornography. Because the parole officers who initially seized the laptop from Sullivan's vehicle did not have the capability to perform a forensic search, they transferred it to the Berkeley police. The Berkeley police then obtained Sullivan's consent to the search of the laptop and also sought a search warrant.
The government's course of conduct was reasonable under the totality of the circumstances given Sullivan's incarceration and the government's interest in retaining and searching the laptop for evidence of crimes. Even if the government could have moved faster to obtain a search warrant, the government is not required to pursue "the least intrusive course of action." Hernandez, 313 F.3d at 1213. Accordingly, we conclude that the government's seizure and retention of the laptop for 21 days before obtaining a search warrant was not an unreasonable seizure under the Fourth Amendment.
Sullivan's reliance on Dass and Mitchell is misplaced. In Dass, law enforcement officials collected suspicious packages at post offices and allowed police dogs to sniff them. 849 F.2d at 414. If the dog alerted, suggesting the presence of marijuana, then the agents would retain the package in order to obtain a search warrant. Id. In holding that law enforcement acted unreasonably by detaining packages for 7 to 23 days before executing a search warrant, Dass implicitly determined that such a lengthy retention of mailed packages constituted a substantial intrusion into the possessory interests of the individuals who placed the packages in the mail. Id. at 415. Dass's conclusions regarding the interests of a member of the public putting a package in the mail are not applicable here, where a parolee under a consent-to-seizure condition was arrested for violation of other parole conditions.
Nor does Mitchell help Sullivan. In Mitchell, ICE agents went to the defendant's residence based on their suspicion that he was engaged in distributing and receiving child pornography. After the defendant consented to a search of his laptop, the agents removed and retained the computer's hard drive, but did not obtain a search warrant until 21 days later. 565 F.3d at 1350–51. On the facts of that case, the Eleventh Circuit held that the delay was unreasonable because the defendant had a substantial possessory interest in the hard drive, which was likely to contain information "of exceptional value to its owner," and the "detention of the hard drive for over three weeks before a warrant was sought constitute[d] a significant interference with Mitchell's possessory interest." Id. at 1351. On the other side of the balance, the court held that there was no compelling justification for the government's delay. Id.
Here, by contrast, Sullivan was in custody the entire time on distinct charges, does not argue he made any request for the laptop's return, and had a reduced possessory interest due to his status as a parolee. On the government-interest side of the balance, the government had a reasonable basis for its delay, including the need to transfer the laptop between agencies. Cf. id. at 1352–53 (applying a rule of reasonableness "dependent on all of the circumstances," and indicating that "if the assistance of another law enforcement officer had been sought, we would have been sympathetic to an argument that some delay in obtaining that assistance was reasonable"). Because this case presents different circumstances than Dass and Mitchell, the district court did not err in striking the balance between the intrusion into Sullivan's interests and the opposing law enforcement interests in favor of the government.
IV
We next turn to Sullivan's arguments that his prior state convictions for unlawful sexual intercourse with a minor under 16 years of age, California Penal Code § 261.5(d), and oral copulation with a minor under 16 years of age, California Penal Code § 288a(b)(2), do not qualify as federal generic offenses for which the mandatory minimum enhancements under § 2251(e) and § 2252(b)(2) must be imposed. We review de novo whether Sullivan's prior convictions support the statutory mandatory minimum enhancements. United States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en banc).
To determine whether a prior state conviction falls into the specified class of federal offenses, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990). See United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007). Under Taylor, the court first defines the federal generic definition of the crime, and then compares the elements of the state offense with that definition. United States v. Gonzalez-Monterroso, No. 12-10158, – F.3d –, 2014 WL 575952, at *1 (9th Cir. Feb. 14, 2014). If the state offense criminalizes the same or less conduct than the federal generic definition of the crime, then it is a categorical match to the federal generic offense. See id. But where a state statute of conviction criminalizes more conduct than the federal generic offense, it does not qualify as a categorical match. Id. Under these circumstances, a court may apply a modified categorical approach if the state criminal statute is divisible. See Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013).
Applying the Taylor framework, we begin by defining the generic federal offense. Under § 2251(e) (mandatory minimum for production of child pornography), a defendant with a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving a minor or ward" is subject to a mandatory minimum sentence of "not less than 25 years." 18 U.S.C. § 2251(e) (emphasis added). 7 Similarly, under § 2252(b)(2) (mandatory minimum for the possession of child pornography), a defendant with a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual conduct involving a minor or ward" is subject to a mandatory minimum sentence of "not
7 Section 2251(e) states, in pertinent part:
Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years . . . .
less than 10 years." Id. § 2252(b)(2) (emphasis added). 8 Under this language, the federal generic offense is a class of offenses "relating to" the three named crimes. When considering such a class of offenses, we "'compare the crime of conviction with crimes we have previously determined to' fall into that particular classification of crimes." Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013) (quoting Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)) (considering "crimes of violence").
"Under the categorical approach, we follow our common practice in cases involving non-traditional offenses by defining the offense based on the ordinary, contemporary, and common meaning of the statutory words." Sinerius, 504 F.3d at 740 (internal quotation marks omitted). We first consider the meaning of "relating to." The Supreme Court has broadly defined the term "relating to" as "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting Black's Law Dictionary 1158 (5th ed. 1979)) (construing "relating to" in a different statutory context). We have held
8 Section 2252(b)(2) provides, in pertinent part:
Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but . . . if such person has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.
that the phrase "relating to" has a broadening effect on what follows; in the context of similar language in 18 U.S.C. § 2252A(b), 9 we held that the phrase "relating to" "does not simply mandate a sentencing enhancement for individuals convicted of state offenses equivalent to sexual abuse." Sinerius, 504 F.3d at 743. "Rather, it mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense." Id.
We next consider the phrase "sexual abuse," which we define by coupling the dictionary definition of "abuse" with the common understanding of "sexual." We give "the term 'sexual' its ordinary and commonsense meaning." Id. at 741. We have addressed the term "abuse" in several different contexts. "[W]e have defined 'abuse' to mean 'misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on.'" Id. at 740 (quoting United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir. 2006)). This definition "encompass[es] behavior that is harmful emotionally and physically." Id. (quoting Lopez–Solis, 447 F.3d at 1207). In addition, we have previously determined that a statutory rape offense constitutes "the generic offense of 'sexual abuse of a minor'" if it includes the elements set forth in 18 U.S.C. § 2243, specifically: "(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor." Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152
9 That offense imposes a mandatory minimum enhancement where the defendant has a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252A(b)(1), (2).
(9th Cir. 2008) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), abrogated by Descamps, 133 S. Ct. 2276. This definition of "sexual abuse of a minor" also "comports with 'the ordinary, contemporary, and common meaning of the words'" sexual abuse of a minor. Id. (quoting United States v. Baron–Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)). While we have rejected the argument that the term "sexual abuse" must be defined by reference to the federal offenses listed in 18 U.S.C. §§ 2241–2248, see Sinerius, 504 F.3d at 742 (considering the generic federal definition of "sexual abuse" for purposes of 18 U.S.C. § 2252A(b)), and thus are not limited "to looking to federal statutes to define federal generic offenses where the federal statute uses the same name as a federal generic offense," United States v. Farmer, 627 F.3d 416, 421 (9th Cir. 2010), such federal statutes nevertheless have relevance for our consideration of whether a particular state statute is one "relating to" such a federal generic offense, see EstradaEspinoza, 546 F.3d at 1152–53 (stating that "it is unnecessary to survey current criminal law to ascertain a federal [generic definition of 'sexual abuse of a minor'] because Congress has already supplied it").
We now turn to the California crimes of conviction in order to compare them with the federal generic offense. Section 261.5(d) proscribes any person 21 years of age or older from engaging in an act of unlawful sexual intercourse with a minor who is under 16 years of age. Cal. Penal Code § 261.5(d). Section 288a(b)(2) proscribes any person over age 21 from participating in an act of oral copulation with a person who is under 16 years of age. Id. § 288a(b)(2). We have previously determined that because section 261.5(d) criminalizes sexual relations with a person who is "a day shy of 16," it is not necessarily abusive. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015–16 (9th Cir. 2009); see also United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir. 2009). The same reasoning would apply to section 288a. Further, the offenses described in section 261.5(d) and section 288a(b)(2) are not equivalent to the federal generic offense of sexual abuse of a minor described in Estrada-Espinoza because one element of that offense requires the government to prove that the defendant engaged in the sexual act "knowingly," Pelayo-Garcia, 549 F.3d at 1013, and neither California statute includes this mens rea requirement. Therefore, the state offenses are not a categorical match to the federal generic definitions we have adopted for sexual abuse.
But for purposes of § 2251(e) and § 2252(b)(2), a state crime need not be equivalent to a generic federal offense; it is necessary only that it "stands in some relation, bears upon, or is associated with [the] generic offense." Sinerius, 504 F.3d at 743. A state criminal statute that does not categorically involve "sexual abuse" may nevertheless qualify as one of the federal generic offenses defined in those statutes because it "stands in some relation, bears upon, or is associated with [sexual abuse]." See Farmer, 627 F.3d at 419 n.3 (quoting Sinerius, 504 F.3d at 743) (noting this possibility). Other circuits agree that this type of enhancement "does not require that the predicate conviction amount to 'sexual abuse' or 'abusive sexual conduct involving a minor.'" United States v. Colson, 683 F.3d 507, 511 (4th Cir. 2012) (considering 18 U.S.C. § 2252A(b)(1)). Rather, "Congress's use of [the 'relating to'] phrase in § 2252(b)(2) indicates its intent to allow a sentencing court to look beyond the mere elements of a prior state conviction in determining whether such conviction is sufficient to trigger application of the sentence enhancement provisions." United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005).
Here, the state crimes described in section 261.5(d) and section 288a(b)(2) relate to the generic offense "sexual abuse of a minor" as defined in Estrada-Espinoza. Although the state offenses lack the mens rea element, this element relates to the culpability of the defendant, not to the impact of the conduct on the minor. The elements relating to the effect of the offense on the minor indicate that under our generic federal statutory rape definition, sexual conduct is abusive when the minor is under 16 and the defendant is four or more years older. Section 261.5(d) and section 288a(b)(2) include these elements, because they proscribe sexual acts between a minor under 16 and a defendant who is over age 21. Accordingly, the state crimes involved "conduct that causes physical or psychological harm in light of the age of the victim in question," Pelayo–Garcia, 589 F.3d at 1014 (internal quotation marks omitted), and as such, are crimes "relating to . . . sexual abuse." In a similar context, the Eighth Circuit concluded that because the term "relating to" "carries a broad ordinary meaning," a state conviction for lascivious acts with children was "relating to" sexual abuse, even though the state offense did not include the element of physical contact required for the generic federal offenses spelled out in 18 U.S.C. §§ 2241, 2242, or 2243. United States v. Sonnenberg, 556 F.3d 667, 670–71 (8th Cir. 2009) (internal quotation marks omitted); cf. United States v. McGarity, 669 F.3d 1218, 1262–63 (11th Cir. 2012) (noting that "any perceived difference" between "abusive sexual contact" in § 2251(e) and the state offense of "enticing a minor for indecent purposes," which did not require touching or attempting to touch a minor, "is overcome by our interpretation of the phrase 'relating to'").
Applying this approach, we conclude that the conduct proscribed by section 261.5(d) and section 288a(b)(2) is categorically a conviction "under the laws of any State relating to . . . sexual abuse" for purposes of § 2251(e) and § 2252(b)(2). Because Sullivan's prior conviction categorically relates to sexual abuse as that phrase is ordinarily understood, we conclude the district court properly applied the mandatory minimum enhancement provisions contained in both statutes of conviction. 10
V
Finally, we address the government's argument on cross appeal that the district court erred by sustaining Sullivan's objection to the inclusion of a two-level Guidelines enhancement for obstruction of justice. "In determining whether the district court committed procedural error, we review the district court's interpretation of the Sentencing Guidelines de novo and its factual findings for clear error." United States v. Smith, 719 F.3d 1120, 1123 (9th Cir. 2013). 11 "It would be procedural error for a district court to fail to calculate—or to calculate incorrectly—the Guidelines range." United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
10 Because we decide the enhancements were proper on this ground, we need not address Sullivan's argument regarding Descamps or the government's argument that the same enhancements are also appropriate based on Sullivan's pimping and pandering convictions, see Cal. Penal Code §§ 266h(a), 266i(a)(2).
11 Although we have yet to resolve the "intracircuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion," United States v. Swank, 676 F.3d 919, 921–22 (9th Cir. 2012), the standard of review is not at issue here.
Section 3C1.1 of the Guidelines is applicable if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice" with respect to the prosecution of the offense of conviction. U.S.S.G. § 3C1.1. The enhancement applies when the district court finds that the defendant gave materially false testimony at trial with the willful intent to provide false testimony. United States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir. 2007) (per curiam).
Although the district court did not credit Sullivan's testimony, and concluded that Sullivan had testified untruthfully during the trial, the district court determined that the two-level enhancement for obstruction of justice should not be included in Sullivan's offense level. The district court explained its reasoning as follows. First, the district court indicated that the § 3C1.1 enhancement was not applicable because the court was not actually misled. The court explained that "[t]he question is whether or not I was obstructed as far as justice is concerned," and concluded that it was not, and that it "had the responsibility of making credibility determinations under any circumstance." Second, the court noted that "the defendant has the right to testify, and that there is a problem of when you punish, and you punish for that testimony you are in a sense punished twice." Finally, the district court remarked that applying the twolevel enhancement would result in a sentencing impact which was "far more than it should be."
None of these concerns is a correct basis for excluding the obstruction of justice enhancement from the calculation of the base offense level. First, conduct that "has the potential for obstructing" the prosecution of the offense is sufficient to warrant enhancement. United States v. Draper, 996 F.2d 982,
986 (9th Cir. 1993). Indeed, an application note to the Guidelines states that "providing materially false information to a judge" is conduct to which the enhancement applies. U.S.S.G. § 3C1.1 cmt. n.4(F). Second, the Supreme Court has rejected the view that imposing a penalty for perjury at trial violates the privilege of an accused to testify on his own behalf. As the Supreme Court has explained, "a defendant's right to testify does not include a right to commit perjury," and thus the enhancement penalizes the defendant for perjury, not for testifying. United States v. Dunnigan, 507 U.S. 87, 96 (1993). Finally, while the district court has discretion in pronouncing a sentence, it must first correctly calculate the applicable Guidelines range. See Carty, 520 F.3d at 993. "The Supreme Court has made clear that the district court must correctly calculate the recommended Guidelines sentence and use that recommendation as the starting point and the initial benchmark." United States v. MunozCamarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). Accordingly, the district court erred in its legal analysis of Sullivan's offense level.
Although there are circumstances where an erroneous Guidelines calculation can be harmless, id. at 1030 & n.5, this is not one of those cases. If a two-level obstruction enhancement were imposed, Sullivan's Guidelines range would have been 324 to 405 months (as opposed to 262 to 327 months), requiring the district court to provide a greater justification for imposing a below-Guidelines sentence of 300 months. See id. at 1031; see also Carty, 520 F.3d at 991–92 (noting the district court must explain its reasoning for the extent of a variance).
Because we cannot tell if the district court would impose the same sentence if it applied the correct legal analysis, a remand for resentencing is required. See Jimenez-Ortega, 472 F.3d at 1103–04 (explaining that findings regarding factual predicates of an obstruction enhancement must be made by the district court in the first instance).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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Individual Projects 2013/2014
Rules and Guidelines
Projects Committee
Dave Cohen firstname.lastname@example.org, Carlos Matos email@example.com
December 2, 2013
1 Introduction
This booklet concerns individual projects. It contains all the information that you will need from choosing a project title, right up to writing up, submitting and being assessed.
You should read this guide carefully in order to better understand the criteria used in assessing a project.
1.1 What is a project
An individual project is a piece of individual work done under the guidance of an academic supervisor. It should be about 200 hours of work (100 hours for a half unit project).
Different projects may stress theoretical aspects of a problem, or practical (programming/implementation) aspects, or may be essentially of a survey type.
* You will have to submit a project plan, programs that you have written, an interim report for the December Review meeting, draft and final project reports.
* You will also demonstrate the software that you have developed to staff, postgraduates, and fellow students.
1.2 Why do a project?
The Department requires all single honours Computer Science students to do a full unit individual project. Students on joint honours courses are also encouraged to do a full unit project, but other course commitments may mean that a half unit project is more appropriate. A half unit project is identical in structure to a full unit project. There is less time to complete a half unit of work so the choice of topics will be more limited.
A project is valuable to you because it is your opportunity to demonstrate your ability to work individually. Success in your project will provide evidence of your skills to any future employer and students often use their project supervisors as referees after completing their degree.
Your project should be the most enjoyable part of your undergraduate studies. You get to choose a topic of personal interest and to study it in depth.
1.3 How do you complete a project
You will be assigned to a supervisor. Your supervisor takes the role of your line manager in a company. They are certainly not there to teach you the material for your project.
You will have a brief meeting with your supervisor every week and at this meeting they will give you feedback on the work you have done, suggest new targets and help with any particular questions that you have.
You are expected to organise your own time, keep a diary of what you have done, deliver reports and programs for assessment and comment, and to update your svn repository regularly.
Use your supervisor to good effect. Hand in regular reports, show them your code and keep them up to date on your progress towards your final deliverables. They can help assess your writing style, your coding style and your understanding of the relevant theory.
The success of your project relies on steady hard work throughout the time you have available.
2 Choosing a project and finding a supervisor
Projects are allocated in summer term before the academic year in which they are completed. This is to allow you to do some background research and begin a project plan over the summer vacation.
The list of available projects topics is published on the web page at Topic List Web Site early in the summer term. About a week after the publication of the list a Chooser Web Site is made available.
If you intend to do a project you must submit your preferences using the chooser web site. On this site you drag five project choices to a submission area, choose your name from a drop down list and press the Submit button. You then see a report of the projects you have chosen. You should make sure that the choices you submit are ordered according to how much you like them, with your favourite project topic at top of the list.
You can submit your choices any number of times, in case you change your mind, up to the submission deadline.
2.1 The project topics
As each supervisor has a limited capacity for project students, and some supervisors will only allow one student to do a particular project topic, it is imperative that you choose as wide a range of projects as possible on the chooser web site.
Some projects have prerequisites attached. Typically, this means that you must be registered for certain third year courses, or have certain key skills. Make sure that you pick projects that you will be able to do.
2.2 Designing your own project title
Students are usually not allowed to attempt non-standard projects (projects that are not on the departmental list). This is to ensure that all projects have a sufficient academic content, and that they are not too ambitious.
If you wish to attempt a project that is not on the departmental list of topics then you must find a supervisor willing to take on that project and submit the project description, including all of the sections that you see in standard topics list, to the projects committee. During the allocation process the projects committee will decide whether you are able to do the project that you have devised with the supervisor you have chosen.
In any event it is essential that you choose five topics from the departmental list using the project chooser web site.
2.3 Your supervisor
When all project preferences have been collected an optimising computer algorithm allocates students to appropriate supervisors, taking student preferences and staffworkloads into account. You will be notified of your allocation by email and on the departmental web site.
You should arrange a first meeting with your supervisor before the end of the summer term. This is entirely your responsibility.
The project title allocated to you automatically by the system is not final. At your first meeting with your supervisor you might opt for a project better suited to your interests and skills. This must be a topic from the standard list that your supervisor is willing to supervise.
3 Organisation of the project
This section describes the process of doing an individual project.
3.1 Initial Meeting and Project Plan
After the project allocation is published and before the end of the summer term it is essential that you arrange an initial project meeting with your supervisor. At this meeting you should discuss the project topic and decide what background reading might be helpful over the summer.
You must also discuss the structure of your project. In what order will you be learning key skills and basic theory. You will also decide, in principle, what the final project will look like.
Following this meeting, over the summer, you will prepare a project plan:
* Briefly describe the project reports that you will be writing in the first term. Such reports will form the basis of your final project report. Typically you will write reports on key background concepts, mathematical theory, algorithms, technologies and relevant literature.
* Briefly describe "proof of concept" programs that you will write in the first term. These programs "prove" that you can code all of the algorithms required, that you can make an appropriate user interface, and that you can use key technologies and libraries effectively.
* Write a short "abstract" indicating why you are doing the project and what you expect the final project to achieve.
* Write a timeline that includes starting and delivery dates for all of the first term reports and programs. It should also include important milestones, with dates, for the second term.
Your project plan must be handed in to the office by 2pm on Fri, 4th Oct, 2013. It will be assessed and count 5% towards your final project grade.
Your supervisor will decide whether the first term schedule of reports and programs, together with the overall project milestones, is a sufficient and effective plan for the project. They will also help you to decide how best to modify and implement the plan.
3.2 Weekly meetings
It is vitally important that you attend a short weekly meeting with your supervisor, to discuss your project. These are the best way for both you and your supervisor to monitor the progress on your project.
These regular weekly meetings will only be twenty minutes long. As soon as possible after the start of the first term you should contact your supervisor to arrange the time for these meetings that fits in with your timetable and their other commitments.
During your first meeting slot you should discuss your project plan with your supervisor and agree the deliverables and milestones. You should decide on a schedule of work for the first two weeks so that you can start work on your project as soon as possible.
There will not be time in twenty minutes per week for supervisors to cover new material so it is important that you arrive each week prepared with questions and problems for discussion. You can ask your supervisor to read and review your work before the weekly meeting.
It is vital that both you and your supervisor keep records at all project meetings. In particular you must record any deadlines given to you and any deliverables required of you.
Bring a notebook to all meetings.
3.3 Project diary
It is important to keep a diary or workbook log of your project work. This will be invaluable when you come to write your final report as it will help you to remember problems that you found and dead ends that you investigated.
Use the notebook that you bring along to project meetings.
3.4 Your SVN repository
We also require you to keep all reports, programs, notes etc. on your SVN repository. This will mean that all of your work is backed up regularly and available to you and your supervisor from home or at the Department. Use a sensible directory structure as you will have lots of files.
It also provides a straightforward mechanism for submission of your final report and programs.
3.5 Supervisor's responsibilities
The supervisor is there to monitor and advise. They are not there to teach. There will not be time in twenty minutes per week for supervisors to teach new material. Supervisors will give you references and be willing to discuss problems after you have studied new material.
It is the supervisor's responsibility to attend each of the weekly meetings, or to re-organise the meetings if this is not possible.
The supervisor will keep an attendance register of your meetings, and of your general conduct during your project. This will count 5% towards your final assessment.
3.6 Paperwork
During the course of the project there is a minimum level of paperwork that must be maintained.
* There is a requirement for the supervisor to maintain a register and a performance record. This record will be assessed as 5% of the final assessment for the project. These records may be kept electronically.
* You must maintain a diary or log book of all your work. It is very useful when it comes to writing up as it is very hard to remember all that was done early in a project! Also, it can be used as a basis for discussions with the supervisor about problems and progress. You should get your supervisor to look at your diary periodically to make sure that you are keeping a log of all that you are doing.
4 December Review
1. In the penultimate week of term, (Mon, 9th – Fri, 13th Dec, 2013), a review will be conducted to determine your progress on the project to date.
2. A review panel will consist of three people: the supervisor, your project second marker, and one member of the projects committee.
3. At the review meeting you will give a ten minute presentation about your project.
4. The review panel will grade the presentation and the submitted material using the appropriate criteria (See Section 12.3).
5. The grade will be justified on a grading form with a short paragraph and feedback will be written by the supervisor and returned to you, by your supervisor, in a timely fashion.
See Section 12.3 for a detailed description of how your progress will be assessed at the December review.
4.1 Preparing for the December Review
Not only will we assess your presentation in December but we will also look at programs and reports that you written.
The programs that you write in the first term are normally "proof of concept" type programs. You will have seen new algorithms, new hardware, new library interfaces or even more complex data structures. It is best to experiment with these new concepts by coding them in small working programs. It is a good rule that we do not truly understand an algorithm until we have successfully made it work in a program. These initial programs make the coding of the final project deliverables much more straightforward. many of the hard issues have already been solved. New material that you have learnt and programs that you have produced will be assessed under the heading "Technical Achievements" and will count 10% towards your final project grade.
The reports that you write in the first term are to help you write your final project report. They will cover theoretical and practical aspects of your project work. Ideally they will already have been put together into a single document that will form the basis of your final project report.
5 The project reports
Your final project report is your most important deliverable, counting 30% towards your final project mark. A final project report is approximately 15,000 words and must include a word count.It is acceptable to have other material in appendixes.
Your interim report for the December Review meeting will count 10% . Even if it is a collection of reports, the total word count should be about 5,000 words. This should summarise the work you have done so far, with sections on the theory you have learnt and the code that you have written.
5.1 Writing the final report
You should aim to agree on the outline of your report with your supervisor as early as possible, normally at the start of the second term. This will allow you to write up your work as you go along. An example of a typical list of headings for a project report is attached.
As your project progresses keep together all the work you do (in your svn archive), including early incorrect ideas and program fragments. These will all be essential in explaining the development of your work.
Your supervisor must see a complete draft of your report by Fri, 21st Feb, 2014 (or Mon, 13th Jan, 2014 for Half Unit projects). Their feedback can help improve the final version.
5.2 What must your report contain
1. Your report must contain a section motivating the project and giving the original project aims.
This section must include a description of how you think that the work involved in your project will help in your future career.
2. Your report must contain a short section on professional issues (See Section 6) that raised concern during the year, particularly with respect to doing your project or the material contained in your project.
3. You must also have some sort of self-evaluation in the assessment section: How did the project go? Where next? What did you do right/wrong? What have you learnt about doing a project?
4. You must include a description of how to run any software that you have submitted, including any environmental requirements (Java version number, IOS version etc.,)
5. All projects will also need a bibliography of works referred to in the text, or that have been read in order to understand the project.
To avoid the accusation of plagiarism (See Section 8) you must cite anything that you quote from (or use images/diagrams or even pr´ecis/reword) in the text.
5.3 What should your report contain?
1. Some kind of Introduction. This should be broken into an abstract of the project, a section of motivation, and a list of project goals.
2. Some kind of theory section. This might include a literature survey, sections on specific theory, or even an interesting discussion on what you have achieved in a more global context.
3. You will need sections describing the software engineering method that you used. If your project is based on a software product then this may be most of your report.
4. If your project is mostly theoretical then you should include some theory development. This might include small programs to investigate certain things, explanations of algorithms, or even descriptions of the particularly hard bits of theory. A theoretical project will have results and some analysis of results. Even short programs should be developed using appropriate software engineering methodology.
5. If your project is hardware oriented then you will need to describe the hardware development process. The details of what sections should be in your report should be discussed with your supervisor.
6. Every report needs some kind of assessment section. This might include a realisation section describing your experience of the project, a summary of what you achieved, and a section on problems and enhancements. Of course you should have a short conclusions section summing up the whole process.
7. Lastly there are some added extras you might want to include. Perhaps parts of a program listing. Perhaps some sample output or experimental results.
6 Professional Issues in your final project report
Ethical behaviour is concerned with what is good or bad, with moral duty and obligation and as such deals with opinions and beliefs.
Professionalism in computing is concerned with the societal impact of computer technology and the creation and understanding of policies for the ethical use of such technologies.
Professional bodies such as the British Computer Society (BCS) and the Association for Computing Machinery (ACM) help ensure professionalism and ethical behaviour by providing standards and a code of individual conduct: guaranteeing certain levels of competence, integrity and a commitment to the interests of all end-users and other stakeholders.
I am amazed when I meet computer professionals in business and industry or even computer science teachers in colleges and universities who fail to recognise that their profession has social and ethical consequences Terrell Ward Bynum (2003 )
After completing a Royal Holloway Computer Science degree we expect that you will be ready to be ethical computing professionals. To this end we include material on professional issues in our undergraduate modules.
The individual project is no exception. By completing an individual project, as well as the theory and practise essential to your chosen topic, you will have acquired skills in time management, prioritisation and both oral and written presentation.
Certainly you will have encountered some professional issues: correct citation, licensing, accessibility etc.,
We require that you complete a short section on professional issues in your final report.
What is required
The section in your project report must be clearly indicated. It can either be part of the general flow of the report or it can be an appendix. It must be approximately 1,000 words.
You must choose a topic that is relevant to your project (see the following section for examples). Then you could:
* describe an example from the public domain of what can happen when professional issues are not properly addressed; or
* write about how a particular issue has been of concern to you in your project; or
* describe some professional issue that has arisen during your project and discuss its ethical or practical importance.
This section must be reflective and thoughtful and is a requirement for a successful project submission. You must include a completed professional issues section in the draft report handed to your supervisor.
Possible Topics
Professional Issues occur wherever computing meets society. As such they are always concerned with how people interact with computers and software. This is a very wide area and you may well choose a topic not listed below but these are given as guidelines to help you.
* Usability - accessibility, replacing humans, artificial intelligence.
* Plagiarism - correct citation, using code with acknowledgement.
* Licensing - shareware, open source, copyright, patenting, reverse engineering.
* Safety - reliability, economic impact, trust, provided "as is" clauses.
* Privacy - web privacy, legal issues, data usage.
* Monopoly - proprietary formats, tie-ins, cartels, DRM, Google, Amazon, Microsoft, Apple
* Management - appropriate costing of time and resources at the start of a project. Revision during project. Consultation with stakeholders.
7 Programs and other technical material
As well as the project reports, you must submit any programs that you have written. These must be properly documented and well written.
The programs that you write in the first term will be submitted at the same time as the interim report, by 2pm on Wed, 4th Dec 2013. The mark given for technical achievement in the first term will be 10% towards your final project.
When you submit your final report you must submit finished programs for assessment. These will count 10% towards your final project.
You should discuss with your supervisor exactly what is required in addition to the report. For example:
* Long or complicated test output (referred to in the report).
* Examples showing the use of the project.
* A working program with instructions on executing it.
* Copies of papers and other reference material used for the project.
8 Plagiarism and acknowledgement of sources
Plagiarism (the unacknowledged use of other people's work) is a very serious offence and will be severely penalised. If you are in any doubt about what needs to be referenced and acknowledged, ask your supervisor for advice.
It is in the nature of a project that much of the material will not be original. You will have researched around your subject and discovered many sources of information. It is vital that any quote made from any source (including the web) should be properly acknowledged, both where it is used within the report text, and at the end of the report in the bibliography. Under no circumstances should copyrighted material be included in a project report without the proper permissions having been obtained, and any such inclusion should be agreed with your supervisor.
8.1 Bibliography
All sources of information which you use during your project must be listed in your bibliography. This includes books, articles, research papers, course notes and Internet sites. Quotations must be acknowledged, for example:
Henry Smith [1] states that "The problem of wild animals on campus can only be solved by the introduction of even wilder animals which will eat them." but the results of this project seem to contradict him.
In this case, the citation [1] would refer to a bibliography entry such as
1. Smith, H. Modern University Life. Wombat Press, 1997.
If you express someone else's idea in your own words, then you must also acknowledge their original expression of the idea. For example:
Smith [1] believes that an infestation of wild animals in a university can only be cured by introducing suitable predators. However, the obviously recursive nature of his proposal led me to consider more feasible alternatives.
8.2 Acknowledging Borrowed/Modified Examples or Theory
If you use examples from a lecture course or a book to illustrate your background theory, then you must acknowledge the original source. Similarly if you follow a book or lecture notes when presenting background theory, for example:
The following sequence of definitions is based on [1], with simplifications due to the fact that we are only considering finite widgets.
8.3 Other People's Code
There is no penalty for using other people's code in you project, as long as you make it clear that this is code that you have not written. However, it is expected that most of the code submitted with your project will be your own.
If any submitted program includes any pieces of code which you did not write yourself, then you must identify this code by commenting it, and say where the code came from. For example, if you copy an implementation of a particular algorithm from a book, you must make it clear that you did not write those lines of code. Even if you modify someone else’s
code to use in your program you must make it clear that you began with someone else's code. You should cite the original program code in your report, as well as clearly marking it with the original author's name in your own source code.
9 Submitting your work
This section tells you how to produce and submit your project plan, reports and programs. It also defines the circumstances in which the submission deadline can be extended.
No project submission is anonymous.
9.1 Submitting the plan and reports
In order to produce and submit any document (project report or plan), you need to do the following.
* Prepare the text with a word processor (for example Microsoft Word TM ) or a document preparation system (for example, L A TEX), using font size no smaller than 10pt and standard or double line spacing. You need to leave a margin of at least 2cm on the left hand edge of the paper, to allow for binding. It is easiest to use the project templates given available on Moodle.
* Make sure that the front cover of the report contains the following information:
– your name
– your supervisor's name
– the project title
– the year
– either "Full unit project" or "Half unit project", as appropriate
Your name and the year must also appear at the very top of the cover (this makes searching through the projects easier for us).
* Tag your project in your own svn archive. The tag should be named PlanSubmission, InterimSubmission or FinalSubmission. The tag must contain a subdirectory Documents containing electronic copies of submitted documents, saved in Portable Document Format (pdf).
* Print two copies on a good quality printer—again, the document must be clearly readable. You can print it either single or double sided, as you prefer.
* If your document has more than ten sheets of paper then it must be bound with a plastic spine (available from the department office) and a transparent cover (also available from the office). Documents shorter than ten sheets can be stapled in the top left corner.
* Hand in both printed copies of the report to the departmental office by the submission date.
Remember that printers, binding machines and the office itself will be in great demand at the time of the deadline; try not to leave preparation and submission of your documents to the last minute.
* With your final report you must also hand in a completed feedback form (See Section 10).
9.2 Submitting your programs
You must make sure that it is possible for your project markers to run any programs which you have produced as part of your project. It is also essential that you not modify your programs after submission.
To this end you must create a tag in your own svn archive. The tag should be named PlanSubmission, InterimSubmission or FinalSubmission and have an appropriate subdirectory structure.
The tag must contain:
* A README.txt file describing the directory structure of your tag,
* A subdirectory Documents containing electronic copies of submitted documents, saved in Portable Document Format (pdf),
* Source files for all programs,
* Any Makefiles, Ant files, XML etc.,
* Results files,
* Executable programs (if appropriate),
* A text file of instructions for December Review programs,
* A user manual (in pdf) for final programs,
* An installation manual (in pdf) for final programs.
Please use a sensible subdirectory structure.
10 Feedback, Monitoring and Complaints
When you submit your final project report, you must fill in the project feedback form (available from the project Moodle site) and hand this in along with your project report. The feedback will be used to inform future procedures and practices by the projects committee.
Your supervisor will monitor your performance during the project. This will count 5% towards the total project assessment.
Complaints
1. Students may complain about their supervisor only on grounds of insufficient monitoring, or inappropriate demands.
2. In the first instance a student should bring complaints to their supervisor.
3. If, after bringing a complaint to the supervisor, the student still has a grievance then they should bring their complaint to a member of the projects committee.
4. If the committee feels that the complaint is justified, and the student wishes, the projects committee will make representations to the supervisor.
5. If the committee feels that a complaint is justified then they will minute this and the grievance will be considered when assessing the project.
11 Marking Procedures and Extensions
Each project will will be assessed by the supervisor, a second marker and a member of the projects committee. The assessments are used to judge the quality of the three marked components to a project: the project plan (See Section 12.2), the first term assessment (See Section 12.3) and the final assessment (See Section 12.4).
Markers will mark according to the marking criteria supplied and will justify marks and provide appropriate student feedback.
1. The project plan will be graded by the project supervisor.
2. The December review presentation will be jointly graded by the supervisor and a member of the projects committee.
3. The student's project performance mark will be determined by the project supervisor.
4. The project demonstration will be assessed by the second marker.
5. Project reports and programs (interim and final) will be marked independently by the project supervisor and a second marker.
Mark reconciliation
In the event of a small discrepancy between the independent marks for a report or program (less than 10% of the mark) the final mark will be the average of the two marks. Otherwise the following process will be followed:
1. The two markers will try to arrive at an agreed mark. The discussion towards agreeing a mark will be recorded.
2. In the event that agreement is not possible, a third independent marker will be assigned, and the projects committee will seek agreement amongst all markers as to the final outcome.
3. If no agreement is possible then the external examiner will be asked to adjudicate a final mark.
Extensions
If you require an extension then you must, in the first instance, contact your advisor. Extensions for projects will normally only be given for medical reasons.
No marking penalty will apply to a project submitted by a student on time or within the limits of an agreed extension. An extension can only be given by the academic advisor, with the agreement of the project supervisor and the projects committee.
An email confirming your extension must be emailed to the departmental administrator by your advisor.
If you are not granted an extension and you hand in any project deliverable late then a standard marking penalty will be applied.
12 Guidelines for Assessment
This section is concerned with the assessment of a project.
Aims
The aim of the individual project is to give students the opportunity to complete a substantial piece of work. This involves organising their own time, deadlines and deliverables, and delivering a completed piece of work in a professional manner.
Objectives
The following objectives will be achieved by completing a individual project. The student will be able to:
* work independently on a significant piece of work, organising deadlines and deliverables;
* learn new skills and theory from diverse information sources;
* make technical decisions after consideration of appropriate evidence and act on those decisions;
* present and discuss a technical subject;
* compose and complete a technical report;
* work steadily under guidance for the duration of a project;
* understand what is required of a computing professional.
12.1 Assessment Criteria
Whilst there are several different assessments made there are only three marked components to an individual project: the project plan (See Section 12.2), the first term assessment (See Section 12.3) and the final assessment (See Section 12.4).
We use a variety of assessment methods in order to be assured that each learning objective is properly assessed. For example the demonstration is where we assess your ability to describe and discuss the final deliverables of your project and any technical achievements that you have made.
Ultimately, the final mark of the project will be determined by the external examiners to ensure that the project marks are commensurate with individual projects across the university sector. Thus, the following criteria are guidelines for choosing the final classification of a project and have been constructed in consultation with our external examiners.
12.2 The Project Plan: 5%
The project plan must be printed and handed in to the Departmental Office by 2pm on Fri, 4th Oct, 2013.
The Project plan will count 5% towards the final grade for the project. The grade grid describes the score achieved for each level of attainment.
The plan should describe the following:
* abstract: an overview of the aims and objectives for the project;
* first term milestones and possible challenges;
* second term overview: key dates and main deliverables;
* bibliography and citation: a list of the sources (web pages, books, papers) that you read to help you decide on your plan;
* planning and time-scales.
| Level | Description |
|---|---|
| Fail | Little work. Poor writing. Abstract does not describe project aims. Few deliverables. Little evidence of thought on timeline. |
| Poor | A poorly thought out plan, with few deliverables or a badly written abstract. Little evidence of thought on timeline. |
| Basic | Usually a well-written abstract. Deliverables are confused or dateline missing. Perhaps some thought on timeline. |
| Good | A project plan with a well written abstract and completed dateline, but with limited explanation of deliverables |
| Very Good | A project plan with a well written abstract and completed dateline. Good motivation for, and explanation of, deliver- ables |
| Excellent | As Very Good, but with clear presentation and a wide range of milestones |
Normally, more than 90% of students score between Basic and Good and fewer than 5% of students achieve an Excellent mark.
Your will receive written feedback on your plan from your supervisor, and a nominal grade (A-F) describing your performance.
12.3 The December Review : 25%
All reports that you wish to be considered for your December review must be printed and handed in to departmental Office by 2pm on Wed, 4th Dec 2013. Each separate report must be collated and stapled so that it can be easily read. The reports should be submitted in an appropriate folder, or bound together as a single document.
A single sheet of A4 giving the location, in your SVN archive, of code and examples for the review, must also be included.
The December Review will count 25% towards your final grade for the project. There will be three components adding up to this weight. The presentation will count 5% and will be graded by your supervisor and a member of the projects committee. The review reports will count 10% and be graded by your supervisor and an independent second marker. The proof of concept programs and other technical achievements will count 10% and be graded by your supervisor and an independent second marker.
You will normally have about 5,000 words in well written reports and at least 300 lines of effective working code submitted submitted prior to the December Review. This should be enough to demonstrate your technical achievements.
The grade grids following describe the score achieved for each level of attainment.
12.3.1 December Review: Reports : 10%
These reports will count 10% towards the final grade for the project and be handed in by 2pm on Wed, 4th Dec 2013.
The (first term) written reports will be expected to contain the following contents:
* aims, objectives and literature survey;
* planning and time-scale;
* summary of completed work;
* bibliography and citations;
* some form of diary.
| Level | Description |
|---|---|
| Fail | Very little work. No evidence of intention to write a coherent final report. |
| Poor | Poor writing, bad structure, too little material. Little evi- dence of thought. |
| Basic | Producing an adequate amount of material, dependent on your individual project, as discussed with your supervisor. Some evidence of software engineering. At least two reports on background theory. Clear presentation. |
| Good | As Basic. Good evidence of software engineering. At least two reports on background theory. Well written with cita- tions. |
| Very Good | As Good. Also a clear outline of the final project report. Good use of images, tables etc., Descriptions of why the interim programs were written. |
| Excellent | As Very Good. Reports collated and contents page supplied. Clear evidence of achievement well beyond the norm. Look- ing towards a publishable final report |
Normally, more than 90% of students score between Basic and Good and fewer than 5% of students achieve an Excellent mark.
Your will receive written feedback on your first term reports from your supervisor, and a nominal grade (A-F) describing your performance.
12.3.2 December Review: Programs and Technical Achievement : 10%
The technical evaluation of your first term work will consider:
* demonstrate a practical understanding of material/theory/algorithms at a final year level;
* good description of the programs written or planned;
* good use of software engineering;
* demonstrate good programming practice;
* programs written should be clearly useful for completing the final project deliverable;
* programs written should work as designed and be simple to execute.
| December Review Grade Grid: Technical Evaluation | | |
|---|---|---|
| Deliverable | Date | Weight |
| Level | Description | Value |
| Fail | Only poor quality code or none submitted. No new pro- gramming or algorithmic concepts/algorithms/data struc- tures/use of libraries beyond second year level. | Fewer than 25 marks |
| Poor | Some working code without good documentation or poorly written. Weak evidence of engaging with the programming challenges of the project. | 26-40 marks |
| Basic | Working code, well written or adequately documented. Clear sense of purpose in programs. Evidence of software engineering. | 40-60 marks |
| Good | As Basic but also some innovation. Interesting algorithms coded, or perhaps use of complex library. Clear evidence of the design process and use of svn archive. | 60-70 marks |
| Very Good | As Good but with Clear focus on covering a wide range of topics necessary to complete the final programs. Final program initial design begun. | 70-85 marks |
| Excellent | As Very Good but also completing advanced targets from the project spec. or other significant extensions outside of the original project spec. Includes complex algorithms and programs researched and coded independently. | More than 85 marks |
Normally, more than 90% of students score between Basic and Good and fewer than 5% of students achieve an Excellent mark.
Your will receive written feedback on your technical achievement from your supervisor, and a nominal grade (A-F) describing your performance.
12.3.3 December Review: Viva: 5%
Marks awarded by the supervisor and a member of the project committee for the ability of the student to defend their work.
The purpose of the project viva is to explore whether the student can:
* explain the aims and objectives clearly;
* explain the background/relevance/importance of the project and set it in the wider context;
* give a broad description of the project - i.e. how parts of the project fit together to form a coherent whole;
* briefly explain the theory underpinning the individual parts of the project (for example how algorithms work or which architectural options existed including their benefits/ drawbacks);
* communicate well, supporting their work with a clear simple presentation.
* defend and justify decisions made during the project;
| Level | Description |
|---|---|
| Fail | Does not understand the aims of the project let alone any- thing done towards achieving them. |
| Poor | Does not understand basic theories relating to any part of the project and cannot defend any of it. |
| Basic | Understood much of what they have done. May be very hesitant on background theory. |
| Good | As Basic. Could not necessarily defend all decisions and maybe struggled if the conversation went beyond the scope of the minimum requirements for the project. |
| Very Good | As Good. The student clearly understood and defended nearly all aspects of the project and its background. Clear evidence of commitment to excellent performance on the project. |
| Excellent | As Very Good. The student clearly knew more than experts in the department about (some aspects of) the project and its context. |
Normally, more than 90% of students score between Basic and Good and fewer than 5% of students achieve an Excellent mark.
Your will receive written feedback on your viva from your supervisor, and a nominal grade (A-F) describing your performance.
12.4 The Final project submission : 70%
See Section 9 for more information on submission of your final project material.
Final project submission will not be marked unless two hard copies and and electronic copy correctly are submitted, together with a completed professional issues section (See Section 6), and a feedback form (See Section 10).
The assessments made after final project submission will count 70% toward the total grade for the project.
12.4.1 Final Project Submission: The Report: 30%
The marks for the final report will be be divided as follows:
* Rationale (10%): Aims, objectives and a good introduction describing the structure of the report.
* Literature Review and Background Reading (15%): Description and critical analysis of relevant background material from books, research papers or the web. Analysis of existing systems that solve similar tasks;
* Contents and Knowledge (25%): Description of relevant theory - whether mathematical, algorithmic, hardware or software oriented. Also Adequate chapters on development and Software Engineering;
* Critical analysis and Discussion (15%): Clear evidence of reflection on the project process, its difficulties, successes and future enhancements. Any conclusions or results analysed or discussed appropriately;
* Structure and Presentation (20%): Good use of English. Clear and appropriate report structure. Nice use of figures;
* Bibliography and Citations (5%): Clear and appropriate bibliography with good citations. Must be clear and well formatted. See Section 8;
* Professional issues (10%): Should be a topic relevant to the project undertaken. See Section 6.
A full marking grid is given on the next page.
and edge
and and
tions
Marks
Final Project Assessment Grid: The Report
<40%
40-49%
50-59%
60-69%
>69%
Rationale 0-10 Problem statement
Marginal focus.
Good relevant in- Clear Motivation
Clear statement of or Introduction or
Relevance of topic troduction.
Some and
well-written problem and asso-
and demanding
clearly re-
un- and
Concep- framework
study.
thought
Soft-
Engineering lay-
Conforms technical
of in
and reference
and how
af-
| 0-15 | No attempt at crit- ical comment; Seri- ous gaps and omis- sions in literature. | Little attempt at critical comment. Large gaps and omissions. | Fair knowledge. Some gaps and omissions. Some attempt at critical comment. | Sound knowledge of background area. Some critical review. Good understanding. |
|---|---|---|---|---|
| 0-25 | No evidence of un- derstanding of the project area. Con- fused conceptual thinking. Poor description of the Software Engi- neering process | Little evidence of understanding of the project area. Conceptual frame- work incomplete. Inappropriate or poorly described Software Engineer- ing processes | Evidence of under- standing with clear explanations. Adequate cover- age. Conceptual framework well developed. Nice clear descrip- tion of the Soft- ware Engineering methodology used. | Good knowledge- able account of the project as titled. Ample coverage of the subject matter in sufficient techni- cal detail. Clear explanation of Software Engi- neering techniques with motivation. |
| 0-15 | Weak and unac- ceptable analysis; Inadequate use of evidence for dis- cussion; No crit- ical evaluation of results | Limited or logi- cally inconsistent analysis. Su- perficial critical evaluation of re- sults or value of evidence. | Appropriate criti- cal analysis but limited. Clear presentation of findings. Good analysis of the project process. | Clear presentation of findings. Com- petent analysis. Evidence of ability to evaluate results. Conclusions justi- fied appropriately. |
| 0-20 | Unacceptable lay- out in terms of structure and logi- cal argument. In- appropriate use of English. Serious deficiencies in pre- sentation. | Poor layout in terms of struc- ture and logical argument. Poor literacy style and deficiencies in presentation. | Generally good layout and clear literacy style. Mainly appropri- ate presentation. Relevant use of chapter and section structure. Some appropriate figures or tables. | Correct, clear En- glish. Clear and competent expres- sion. Consistent layout of the project re- port. Clear overall structure. Good use of figures with clear referenc- ing. |
| 0-5 | No bibliography | Bibliography present but poorly formatted or cited | Clear well writ- ten bibliography. Some citations. | Well formatted bibliography. Ade- quate citations at correct points in text. |
| 0-10 | No real attempt to describe any pro- fessional issues | Professional issues addressed but poorly thought out and related to the project | Professional issues discussed that are shown to be rele- vant to the project | Clear discussion of professional issues. Well written and related to project material. |
12.4.2 Final Project Submission: Technical Achievement: 20%
Marks awarded by the supervisor and the second marker together which reflect the candidates total technical achievement.
You will be evaluated on:
* Are there novel applications of standard ideas and techniques?
* Did the student work with techniques, software, theory or concepts which are clearly above second year level?
* Did the student master complex new technologies/platforms or have to study a significant body of literature from disparate sources to complete the project?
* Is the account in the final report technically accurate and concise?
* Are important (technical) decisions well made and argued? This includes good design decisions, choice or development of algorithms, scope of the project. It does not include choice of platform or development tools as these are not technical achievements.
| Technical Achievement Grading Grid | | |
|---|---|---|
| Level | Description | Value |
| Outstanding first class (Award rarely.) | Definitely to be published in journal, patented or marketed. Clearly of a professional standard. | 95-100% |
| Very good first class (Typically award to 2% of students.) | Outstanding - suitable for publication or sale, with some small modifications or tidying up, in a suitable outlet. | 85-94% |
| Good first class (Typically award to 5% of students.) | Excellent definitely worth continuing. Clear ev- idence of potential as a product or publication | 75-84% |
| First class (Typically award to 13% of students.) | Substantial originality clear evidence of ability to work independently. | 70-75% |
| Upper second class (Typically award to 30% of students.) | Solid and competent piece of work, well exe- cuted, probably has some originality. | 60-69% |
| Lower second class (Typically award to 30% of students.) | Reasonable standard, shows some merit, proba- bly lacks originality. | 50-59% |
| Third class (Typically award to 16% of students.) | Minimum acceptable, will demonstrate some ef- fort but leaves a lot undone, does go very little beyond application of standard techniques. | 40-49% |
| Borderline Fail (Typically award to 3% of students.) | Unsatisfactory most of the promises in the spec- ification are not properly fulfilled in the final product or report. Technically trivial, does not go beyond application of standard techniques, and might be even weak on this account. | 35-39% |
| Fail (Typically award to 1% of students.) | A start has been made, but virtually no mean- ingful results or design. | 20-34% |
| Very bad fail (Award rarely.) | There are some ideas of what project is about but no real work has been done. | 10 -19% |
| Appalling (Award rarely.) | There is a project title and description but not much else. | <10% |
12.4.3 Final Project Submission: End Product (usually software): 10%
Marks awarded by the project supervisor and 2nd marker for the quality of the end product.
* Does it work? Is it stable?
* Is the software usable? Is the interface appropriate for the application (a compiler might require more technical skills to run than an e-commerce site)?
* Does the code and system structure follow the design?
* How complete is the functionality with respect to the requirements?
* Is the coding clean and well documented?
* Does the SVN archive reflect the use of good software engineering principles including appropriate use of branches/tags?
| End Product Grading Grid | | |
|---|---|---|
| Level | Description | Value |
| Fail | Nothing of any complexity has been developed. | Fewer than 20 marks |
| Poor | Virtually nothing there. Too little to even judge complete- ness, structure and usability. There is no realistic chance that the student can improve this to a pass standard. | 21-40 marks |
| Basic | Reasonable standard several minor and some larger prob- lems. Functionality is somewhat complete and code and sys- tem structure are such that the system will be maintainable. Usability is somewhat hampered, more like a prototype. | 40-50 marks |
| Good Enough | Reasonable standard several minor and some larger prob- lems. Functionality is somewhat complete and code and sys- tem structure are such that the system will be maintainable. Usability is somewhat hampered, more like a prototype. | 50-60 marks |
| Good | Good standard several minor problems. Functionality is mostly complete. Code and system structure are such that the system will be maintainable. Usability is somewhat hampered, more like a (very) good prototype. | 60-70 marks |
| Very Good | Excellent standard some very minor problems but quite usable. Functionality is mostly complete and code and sys- tem structure are such that the system will be reasonably maintainable. | 70-85 marks |
| Excellent | Professional standard could be shrinkwrapped and sold. Functionality is complete and code and system structure are such that the system will be highly maintainable. | More than 85 marks |
12.4.4 Effort and Organisation: 5%
Marks awarded by the supervisor for the ability of the student to plan and organise their project, as well as a reflection of the level of effort the student shows during the project.
You are evaluated on:
* the ability to arrange and attend supervisory meetings;
* the ability to alter their project plan and identify priorities as they arise
* the ability to keep an organised project diary
* the ability to maintain a consistently high level of effort throughout the project
* an assessment of whether the student can work independently or requires constant supervisory intervention
* communicate well and maintain a good professional working attitude towards the project
| Effort and Organisation Grading Grid | | |
|---|---|---|
| Level | Description | Value |
| Fail | Student did not undertake any planning, and little to no effort was consistently spent on the project. | Fewer than 25 marks |
| Poor | The student showed little if any attempts at organisation. Despite prompting by supervisor the students effort was poor. | 26-40 marks |
| Basic | The student showed some organisational skills, and the level of effort in the project was generally adequate. Marks in the lower range are awarded if the student required regular prompting. | 40-60 marks |
| Good | The project was well organised and a significant amount of effort was usually given by the student at during the project. | 60-70 marks |
| Very Good | The project was well organised and a high level of effort was often given by the student during the project. | 70-85 marks |
| Excellent | The project was very clearly organised and the effort given was consistently of a professional standard. | More than 85 marks |
12.4.5 Project Demonstration: 5%
Marks awarded by the second marker for the ability of the student to defend the work. The purpose of the project demonstration is to explore whether the student can:
* explain the aims and objectives clearly;
*
demonstrate the working code;
* explain the background/relevance/importance of the project and set it in the wider context;
* briefly explain the theory underpinning the individual parts of the project (for example how algorithms work or which architectural options existed including their benefits/ drawbacks);
* communicate well;
* support their work with a clear simple A3 poster.
| Project Demonstration Grading Grid | | |
|---|---|---|
| Level | Description | Value |
| Fail | Does not understand the aims of the project let alone any- thing done towards achieving them. | Fewer than 25 marks |
| Poor | Does not understand basic theories relating to any part of the project and cannot defend any of it. | 26-40 marks |
| Basic | Understood much of what they have done. The product works well enough. May be very hesitant on background theory. | 40-60 marks |
| Good | Could not necessarily defend all decisions and maybe strug- gled if the conversation went outside the scope of the project. Simple Poster on display. | 60-70 marks |
| Very Good | The student clearly understood and defended nearly all as- pects of the project and its background. Clear evidence of potential. | 70-85 marks |
| Excellent | The student clearly knew more than experts in the depart- ment about (some aspects of) the project and its context. Project demonstration flawless. Good Poster. | More than 85 marks |
|
SUPPLEMENTAL COMMENT OF JAMES MADISON CENTER FOR FREE SPEECH ON JUDICIAL CANONS 2.11(c), 2.12(5) AND 5 FOR THE ABA’S JOINT COMMISSION TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT
September 15, 2005
_______________________
James Bopp, Jr. Anita Y. Woudenberg JAMES MADISON CENTER FOR FREE SPEECH 1 South 6th Street Terre Haute, Indiana 47807 812-232-2434
INTRODUCTION
The ABA's Joint Commission to Evaluate the Model Code of Judicial Conduct has solicited comments to its preliminary draft of the Code. On March 15, 2005, the James Madison Center for Free Speech, by General Counsel James Bopp, Jr., 1 timely filed its Comments on proposed Rule 5.02(d). The James Madison Center now files its Supplemental Comments addressing Rules 2.11(c), 2.12(5) and 5.
SUPPLEMENTAL COMMENTS
[F]irst we're not bound by any foreign law. . . . But this is a world in which more and more countries have come to have democratic systems of government with documents like our Constitution to protect things like free expression, and there are judges, and the judges have a job somewhat similar to mine . . . But why not learn something, if we can.
[T]o tell you the truth, in some of these countries, they're just trying to create these independent judicial systems to protect human rights and contracts and all these other things. And, if we cite them sometimes, not as binding, I promise, not as binding, well, that gives them a little boost sometimes . . . [I]t sort of gives them a little leg-up for [the] rule of law and freedom. 2
1 James Bopp, Jr., served as a Special Advisor to the ABA Working Group for First Amendment and Judicial Elections in 2002-2003 and successfully argued Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
2 Stephen Breyer, Is the Independence of the Judicial at Risk?, ABA Annual Meeting Panel (August 9, 2005), at http://www.abanet.org/media/docs/judiciarydebatetrans8905.pdf, at 3 (emphasis added); Abdon M. Pallasch, Justice Breyer Takes a Stand, CHICAGO SUN-TIMES, August 10, 2005, http://www.suntimes.com/outputnews/cst-nws-aba10.html.
Thus, in his address before this year's annual meeting of the American Bar Association, Justice Stephen Breyer addressed one of the more contentious legal issues currently being debated by members of Congress, the legal community and the Court. At the same meeting, the Joint Commission continued to consider proposed amendments to Model Code of Judicial Conduct that, if adopted, would severely punish Justice Breyer's statement. Under proposed Rules 2.11(c) and 5.01(m), Justice Breyer would be subject to discipline for having "made a promise" "with respect to [an] issue that [is] likely to come before the court." Further, under proposed Rule 2.12(5), Justice Breyer would be required to disqualify himself in any future case where the Supreme Court might consider citing law from foreign jurisdictions, since he had "made a public statement that commits, or appears to commit the judge with respect to an issue in the proceeding." Thus, the proposed Rules have serious long term consequences.
Continuing to discipline judges and judicial candidates for expressing an opinion on an issue cannot be squared with the First Amendment. More importantly for these Supplemental Comments, the use of disqualification to punish and chill judges and judicial candidates for expressing an opinion on an issue is unprecedented in our judicial history, presumes without warrant that judges are incapable of following their oath, and will have serious adverse consequences on the judiciary.
I. The Supreme Court's decision in Republican Party of Minnesota v. White has fundamentally changed the permissible scope of regulation of judicial campaigns. The decision of the United State Supreme Court in Republican Party of Minnesota v.
White has created "a sea change in the law of extrajudicial speech." 3 As a result, "White's treatment of the judicial impartiality rationale and its application of the narrow tailoring requirement rases questions about whether any judicial campaign restriction could pass strict scrutiny. The decision casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation." 4
The courts have readily recognized that the White case was a landmark decision regarding judicial speech with principles that are applicable to not just judicial candidate's right to announce their views, but to other canons affecting judicial speech: "With its decision in Republican Party of Minnesota v. White, the United States Supreme Court changed the landscape for judicial ethics, at least with respect to political campaigns." 5 This occurred because of the Supreme Court's emphatic rejection of the longstanding justification for restrictions on judicial speech, that judicial elections were fundamentally different that elections for legislative and executive office. As the Eleventh Circuit explained it:
3 Thomas Penfield Jackson, Beyond Republican Party v. White: A Plea for a Rule of Reason for Extrajudicial Speech, 32 HOFSTRA L. REV. 1163, 1165 (2004). See also Geoffrey C. Hazard, Jr., "Announcement" By Federal Judicial Nominees, 32 HOFSTRA L. REV. 1281 (2004).
4 Richard Briffault, Judicial Campaign Codes After Republican Party of Minnesota v. White, 153 U. PENN. L. REV. 183, 184 (2004).
5 Griffen v. The Arkansas Judicial Discipline and Disability Comm'n, 130 S.W.3d 524, 535 (Ark. 2003).
Appellees argue that we should adopt lower standards for judicial elections than for other types of elections because speech by judicial candidates is entitled to less protection than speech by legislative and executive candidates. We disagree. Although there is some support for appellees' position, we believe that the Supreme Court's decision in White suggests that the standard for judicial elections should be the same as the standard for legislative and executive elections. 6
Thus, three circuits have applied White standard to provisions other than the announce clause. The Eighth Circuit in an en banc decision applied the White Court's analysis to Minnesota's partisan-activities and solicitation clauses, finding them unconstitutional. 7 The Eleventh Circuit relied on White to apply strict scrutiny to strike down Georgia's canons that prohibited judicial candidates from making negligent false statements and misleading or deceptive true statements and from personally soliciting campaign funds, as well as a provision permitting the commission to issue a cease and desist order to the candidate for violating those
6 Weaver v. Bonner, 309 F.3d 1312, 1320-21 (11 th Cir. 2002) (citations omitted). See also O'Neill v. Coughlan, No. 04 Civ. 1612, slip op. at 9 (N.D. Ohio Sept. 14, 2004) ("Ohio might also argue that this canon advances its compelling interest in maintaining a judicial system free from the partisan allegiances, biases, and machination that characterize the legislative and executive branches. But the Supreme Court's decision in White resoundingly forecloses this line of argument.").
7 Republican Party v. White, 2005 U.S. App. LEXIS 15864 (8th Cir. Aug. 2, 2005).
provision. 8 And the Sixth Circuit applied White to Kentucky's pledges and promises clause and commits clause to find that the defendants could not demonstrate a likelihood of success on the merits to justify staying the lower court's preliminary injunction. 9
District courts have been doing the same. Soon after White, a Texas district court enjoined a judicial canon that prohibited a judicial candidate from "mak[ing] statments that indicate an opinion on any issue" that may come before him or her. 10 A New York district court held that canons which restricting political activity of judicial candidates by requiring judges to uphold the integrity and independence of the judiciary, to promote public confidence in the integrity and impartiality of the judiciary, and to decline to engage in certain specified partisan political activity were unconstitutional under White. 11 More recently, a district court applied the White Court's analysis to Ohio's political-affiliation clause, an advertising provision, and a requirement to "maintain the dignity appropriate to judicial office." 12 Additionally, district courts
8 Weaver, 309 F.3d 1312.
9 Family Trust Foundation of Kentucky v. Kentucky Judicial Conduct Comm'n, 388 F.3d 224, 227 (6th Cir. 2004).
10 Smith v. Phillips, 2002 U.S. Dist. LEXIS 14913 (W.D. Tex. 2002).
11 Spargo v. State Comm'n on Judicial Conduct, 244 F. Supp.2d 72, 86-87, 88-89 (N.D.N.Y. 2003), vacated on other grounds, 351 F.3d 65 (2d Cir. 2003).
12 O'Neil, No. 04 Civ. 1612 (N.D. Ohio Sept. 14, 2004).
have used the White analysis to determine the unconstitutionality of the pledges and commits provisions identical to those struck down in Kentucky. 13
II. Proposed Rule 2.12(5) unconstitutionally penalizes protected candidate speech and is unwise as a matter of policy.
A. Proposed Rule 2.12(5) and its justifications.
Proposed Rule 2.12(5) requires a judge to disqualify 14 himself or herself where:
the judge, while a judge or a candidate for judicial office, has made a public
13 Alaska Right to Life v. Feldman, No. A04-0239 CV (RRB) (D. Alaska July 29, 2005); North Dakota Family Alliance v. Bader, 361 F. Supp.2d 1021 (D. N.D. 2005).
14 The term "disqualification" is customarily used when recusal of a judge is required by statute, rule or the Constitution, while "recusal" customarily refers to the circumstances where a judge voluntarily steps aside when "disqualification" is not required. Occasionally, the terms are used interchangeably. See Public Citizen v. Bomer, 274 F.3d 212, 215 n.2 (5th Cir. 2001).
statement that commits, or appears to commit the judge with respect to an issue in the proceeding or the controversy in the proceeding.
This proposed rule "is designed to make the disqualification ramifications of prohibited speech violations explicit" and it "reflects the goals of Canon 5A(3)(d) (now Rule 5.01(j) and (m))." 15
B. Recusal has never been required for expressing a view on an issue.
However, recusal for announcing one's views is unprecedented. 16 It is uniformly
15 Am. Bar Ass'n, Standing Committee on Judicial Independence, Report to the House of Delegates 11 (2003) available at http://www.abanet.org/judind/judicialethics/amendments.pdf (hereinafter Report to the House of Delegates). This proposed rule was adopted by the ABA as an amendment to the Model Code of Judicial Conduct in 2003. Notable is the fact that this new disqualification rule is virtually identical to the "commits" clause in Canon 5A(3)(d)(ii) of the 1990 ABA Model Canons. The ABA revised this canon in 2003, in part because the Working Group believed that those revisions were necessary because of White. Id. at 11-12. The original problematic formulation of the "commits" clause, however, was imported into the disqualification provision.
16 There is one decision where a judge was required to disqualify himself for prior announcement of views on an issue. See Republic of Panama v. American Tobacco Co., 265 F.3d 299 (5th Cir. 2001), rev'd on other grounds sub nom. Sao Paulo State of the Federative Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229 (2002) (holding that a judge who had previously been associated with a view of a legal issue must recuse himself from a case involving that legal issue). In his dissent on the request for rehearing en banc, Judge Wiener states: "The panel opinion for this case marks the first time in the history of American
accepted in both federal law, 17 and under the ABA model judicial canons that disqualification is only required if there is bias concerning a party , 18 as distinguished from bias concerning an issue in the case. . . . [Thus] a judge need not disqualify himself if bias arises from his beliefs as to the law that applies to a case. A judge may have fixed beliefs about principles of law that would not mandate disqualification. Otherwise, a judge could not write books or articles or speak on legal subjects 19 – all activities expressly permitted under [1990 ABA] Canon 4B. Indeed, after deciding cases and creating precedent for years, it would be incredible if the judge
jurisprudence that an appellate court has reversed a trial judges's discretionary refusal to recuse himself – and has ordered the judge recused – based solely on the fact that many years earlier, while he was a practicing attorney, he had been linked (erroneously at that) with one view of a legal issue that was then pending in state court and . . . [that view] is now being espoused by one of the parties in a case pending before him." Id. at 300. The Supreme Court, however, summarily reversed, per curiam, on other grounds.
17
28 U.S.C. § 455(b)(1).
18 Disqualification requires "deep-seated and unequivocal antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994); see also id. at 558 (Kennedy, J., concurring) ("[A] judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.").
19 Nor could judges have web logs like Judge Posner does at <http://www.becker-posnerblog.com>.
did not form some fixed ideas about the law. 20
This has been the longstanding position of the ABA 21 and the Supreme Court, which has found that prior expressions of views on issues that then came before administrative adjudicators did not require disqualification. 22 This has lead the courts to say unequivocally that recusal was not required by "the mere fact that a judge has previously expressed an opinion on a point of law." 23
20 Ronald D. Rotunda, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility 820-21 (West Group 2000) (emphasis in original).
21 See, for example, the ABA's position in the 1972 ABA model canons. The original draft of the 1972 ABA Canon 3C(1)(a), which required disqualification if a judge "had a fixed belief concerning the merits," was changed to the "personal bias or prejudice" standard for fear the original draft would require a judge "to disqualify himself if he had a fixed belief about the law applicable to a given case." Wayne Thode, Reporter's Notes to Code of Judicial Conduct 61 (1973). "[T]he [ABA drafting] committee recognized the necessity and the value of judges having fixed beliefs about constitutional principles and many other facets of the law." Id.
22 See, e.g., FTC v. Cement Institute, 333 U.S. 683 (1948); United States v. Morgan, 313 U.S. 409 (1941).
23 Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). See Laird v. Tatum, 409 U.S. 824, 835-36 (1972) (Rehnquist, J., on motion to recuse); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (holding that a judge who previously as a legislator supported a bill restoring the death penalty was not required to recuse himself from a death penalty case); United States v.
Further, due process 24 does not require recusal for having expressed a view on an issue. 25
Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000); United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996) (holding that a judge's views on legal issues may not serve as a basis for a motion to disqualify that judge); United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993); Leaman v. Ohio Dep't of Mental Retardation, 825 F.2d 946, 949 n.1 (6th Cir. 1987); Southern Pac. Communications v. AT&T, 740 F.2d 980 (D.C. Cir. 1984) (stating that the mere fact that judge has views on the law or policies at issue in a case before him does not require his recusal); Rosquist v. Soo Line R.R., 692 F.2d 1107 (7th Cir. 1982) (stating that the judge was not required to recuse himself holds and expresses certain views on a general subject); United States v. Conforte, 624 F.2d 869 (9th Cir. 1980) (stating that the views of a judge on legal issues are not an adequate basis for motions to disqualify); United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976). See also United States v. Barry, 961 F.2d 260 (D.C. Cir. 1992) (holding that a judge's bias can only be disqualifying if it stems from an extrajudicial source and makes the judge's impartiality reasonably questionable); United States v. Payne, 944 F.2d 1458 (9th Cir. 1991) (holding that expertise or exposure to a subject does not require a judge to recuse himself); United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987) (personal bias based upon a judge's background and associations alone does not require recusal).
24 "Statutory grounds for disqualification are stricter than the requirements of due process." United States v. Alabama, 828 F.2d 1532, 1540 n.22 (11th Cir. 1987). As a result, due process concerns are already meet, if statutory disqualification requirements are satisfied.
Due process requires trial before an unbiased judge. 26 However, due process disqualification is required "only in the most extreme of cases." 27 It must be shown that the judge has a "direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case." 28 Thus, due process requires a judge to recuse if he or she has a personal bias or prejudice concerning a party, not an opinion on an issue 29 or an association with a group because of the particular issues
25 But see Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 GEO. J. LEGAL ETHICS 1059 (1996) for the contrary view.
26 Johnson v. Mississippi, 403 U.S. 212 (1971)Johnson v. Mississippi, 403 U.S. 212, 216 (1971).
27 Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 825-26 (1986).
28
Id. at 821-22 (citation and quotations omitted).
29 With respect to the role of the Announce Clause in protecting judicial impartiality, the Court was correct in its conclusion that the Clause was poorly aimed at the prevention of bias against parties and, more importantly, that impartiality cannot be equated with an absence of preconceptions about legal issues. Surely, any candidate with significant experience in law has some preconceptions about legal issues. All the Announce Clause could
embraced by the group. 30
However, opinions on issues must be distinguished from "pre-hearing pronouncements concerning the proper decision of cases made by judges likely to hear those very cases. Pronouncements of this description are inconsistent with the core judicial responsibility of hearing before deciding." 31 Thus,
due process would not be offended if a judge presiding over a case expressed a general opinion regarding a law at issue in a case before him or her. The problem arises when the judge has prejudged the facts or the outcome of the dispute before her. In those circumstances, the decisionmaker cannot render a decision that do was preclude candidates from telling the electorate about their preconceptions. And if the articulation of views concerning legal issues is treated as an absence of impartiality, many veteran judges with consistent jurisprudential approaches in certain types of cases would be barred from hearing those cases in the future.
Briffault, supra note 4, at 206.
30
White, 2005 U.S. App. LEXIS 15864 at *34-37.
31 Jon C. Blue, A Well-Tuned Cymbal? Extrajudicial Political Activity, 18 GEO. J. LEGAL ETHICS 1, 25 (2004).
comports with due process, 32 and recusal is required. 33 The proposed Rule, however, does not honor this distinction.
C. Requiring recusal presumes that judges are incapable of following their oath.
It has long been established that "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea." 34 Thus, "[t]here is a presumption of impartiality on the
32 Franklin v. McCaughtry, 398 F. 3d 955, 962 (7th Cir. 2005) (citations and quotations omitted); id. ("[T]he only inference that can be drawn from the facts of record is that Judge Schroeder decided that Franklin was guilty before he conducted Franklin's trial. This is a clear violation of Franklin's due process rights.").
33 Id. at 27. See, e.g., In re: Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001) ("Judge Gertner's statement . . . could be construed as a comment on the merits of the pending motions for preliminary injunction and class certification."); Cooley, 1 F.3d at 995 (The judge's statements on television "unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator. We conclude that at least after the judge's volunteer appearance on national television to state his views regarding the ongoing protests, the protesters, and his determination that his injunction was going to be obeyed, a reasonable person would harbor a justified doubt as to his impartiality in the case involving these defendants.").
34 See Aetna Life Ins. v. Lavoie, 475 U.S. 813, 820 (1986) (citing 3 W. Blackstone,
part of judges," 35 that they "are honest, upright individuals . . . [who] rise above biasing influences," 36 and that, because a "judge is sworn to administer impartial justice, [the judge] is qualified and unbiased." 37 Further, the Supreme Court has accepted "the notion that the conscientious judge will, as far as possible, make himself aware of his biases of their character, and, by that very self-knowledge, nullify their effect." 38 Thus, while the presumption of impartiality may be overcome in particular cases through judicial disqualification, wholesale and categorical rejection of the presumption for all judges who state their views carries "a much more difficult burden of persuasion." 39 The court must be convinced that "under a realistic appraisal of psychological tendencies and human weakness," public expression of a judge's general views on the law during a campaign "poses such a risk of actual bias or prejudgment that
Commentaries 361). 35 Wilson v. Neal, 16 S.W.3d 228, 287 (Ark. 2000). 36 Franklin, 398 F.3d at 959. 37 Dillard's v. Scott, 2005 Miss. LEXIS 286 at *17 (Miss. 2005). 38 Liteky v. United States, 510 U.S. 540, 562 (1994) (Kennedy, J., concurring) (citations and quotations omitted). 39 Withrow v. Larkin, 421 U.S. 35 (1975)Withrow v. Larkin, 421 U.S. 35, 47 (1975).
the practice must be forbidden." 40
Certainly it is true that judges have opinions on the law and that these opinions will influence their judging. 41 The Preliminary Draft recognizes that. 42 But it is readily apparent that judges are obligated to set aside those opinions 43 and that the process of judging can cause judges to decide cases contrary to those views. 44 Thus,"[t]he fact that some aspect of [a judge's] propensities [on issues] may have been publicly articulated prior to coming to this Court cannot . . . be regarded as anything more than a random circumstance that should not by itself form a
40 Id. See also Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1361, 1375-77 (7th Cir. 1994) (en banc).
41 Briffault, supra note 4, at 198-201.
42 Preliminary Draft, ABA Model Code of Judicial Conduct, Canon 2 at 2 (June 30, 2005) (Rule 2.04A[2]: "Although a judge's background and personal philosophy may influence the way in which the judge analyzes and interprets a legal issue, a judge must interpret and apply the law without regard to whether the judge personally approves or disapproves of the law in question.").
43
Id.
44 Ronald D. Rotunda, Judicial Elections, Campaign Financing, and Free Speech, 2 ELECTION LAW J. 79, 88 (2003).
basis for disqualification." 45 Expression of a view on an issue simply does not overcome the presumption of impartiality of all judges and cannot be a basis for wholesale disqualification.
There have been numerous applications of this view. Disqualification is not required where a judge gave a lecture to police officers about increasing the prospects for conviction in narcotics cases, while handling drug cases, 46 for writing on a legal issue, commending the present law or proposing legal reform, 47 and for engaging in a wide variety of extrajudicial activities to promote the law. 48 Further, disqualification cannot be based on prior judicial rulings in a proceeding or prior proceeding, 49 or because the judge has been involved with the
45 Laird v. Tatum, 409 U.S. 824, 836 (1972).
46 United States v. Pitera, 5 F.3d 624 (2d Cir. 1993).
47 Committee on Codes of Conduct, Formal Op. 55 (1977, revised 1998) (citing Wayne Thode, Reporter's Notes to Code of Judicial Conduct 74 (1973)). In fact, the Preliminary Draft encourages judges "to contribute to the improvement of the law" by "speaking, writing, teaching or participating in other extrajudicial activities," Preliminary Draft, supra note 42, Rule 4.01[3], Canon 4 at 1, and to share that expertise on matters of law with governmental bodies. Id. Rule 4.02[1], Canon 4 at 2.
48 Committee on Codes of Conduct, Formal Op. 93 (1997, revised 1998).
49
Liteky v. United States, 510 U.S. 540, 555 (1994).
development of the law in government or through scholarly writings. 50 Finally, disqualification is not justified because a judge is a minority handling a civil rights case, was a civil rights lawyer, was a political figure or member of the state senate who took public positions concerning the public institutions before the court, or had stated strong views prior to joining the bench. 51
D. Proposed Rule 2.12(5) is unconstitutional under White.
Thus, it is clear that the proposed rule is not "designed to make the disqualification ramifications of prohibited speech violations explicit," 52 since disqualification for stating a view on an issue was never implicit in the disqualification canon. So, the animating purpose is to enforce the limits on judicial speech found unconstitutional in White, which the drafters of the rule acknowledge. 53
By employing disqualification to enforce judicial candidate speech rules, Rule 2.12(5) penalizes judges by denying them employment, resulting in a chilling effect on judicial candidates who seek to avoid such an unconstitutional condition. 54 Rule 2.12(5), therefore,
50 Laird, 409 U.S. at 828-33; Del Vecchio, 31 F.3d at 1377 n.3.
51 Alabama, 828 F.2d at 1542-44.
52 Report to the House of Delegates, supra note 14, at 11.
53 Id. (The Rule "reflects the goals of Canon 5A(3)(d)." (now Rule 5.01(j) and (m)).
54 See Dolan v. City of Tigard, 512 U.S. 374, 387 (1994) (stating that the government cannot require a person to give up a constitutional right to receive a discretionary benefit); Perry
restricts a core First Amendment freedom and is subject to strict scrutiny. 55 Since the scope of the prohibition of Rule 2.12(5) on expressing an opinion on issues is virtually identical to the announce clause struck down in White, 56 Rule 2.12(5) is virtually certain to be struck down. 57
Under White, the analysis is quite straightforward. Because Proposed Rule 2.12(5) is subject to strict scrutiny, Rule 2.12(5) must both serve a compelling interest and be narrowly v. Sindermann, 408 U.S. 593, 597 (1972) (stating that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech," even though he is not entitlement to that benefit) ; Speiser v. Randall, 357 U.S. 513, 529 (1958) (finding an unconstitutional condition existed where the taxpayer had to execute an oath in order to receive a tax exemption). See also McDaniel v. Paty , 435 U.S. 618, 633 (1977).
55 See White, 536 U.S. at 775 (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)).
56 "Minnesota's announce clause has the same scope as the corresponding provision in the 1990 ABA Model Code - namely, it prevents judicial candidates from seeking political support on the basis of commitments or apparent commitments on how they would decide cases if elected." Brief of the American Bar Association as Amicus Curiae at 5, White, 536 U.S. 765.
57 See Matthew J. Medina, Note, The Constitutionality of the 2003 Revisions to Canon 3(E) of the Model Code of Judicial Conduct, 104 COLUM. L. REV. 1072 (2004); Hon. Howland W. Abramson & Gary Lee, The ABA Model Code Revisions and Judicial Campaign Speech: Constitutional and Practical Implications, 20 TOURO L. REV. 729 (2004).
tailored to serve that interest. 58
The White Court recognized judicial impartiality as a compelling interest when defined as the "lack of bias towards the parties" or "openmindedness." 59 Rule 2.12(5) is not narrowly tailored to reflect this interest in judicial impartiality.
First, the language of Rule 2.12(5) does not reflect an interest in lack of bias towards the parties. Like the announce clause, Rule 2.12(5) does not restrict speech for or against particular parties, but rather requires recusal for "a public statement that commits, or appears to commit the judge with respect to an issue in the proceeding or the controversy in the proceeding." 60 Just as the announce clause was found to be too broadly tailored to serve this interest, Rule 2.12(5) will likely be viewed as insufficiently tailored because it only addresses impartiality as to issues, not parties. 61
Second, Rule 2.12(5) is not adequately drafted to preserved openmindedness. Specifically, Rule 2.12(5) is underinclusive. Like the announce clause in White, Rule 2.12(5) only encompasses commitments made by judicial candidates, and it does not address
58 White, 536 U.S. at 775.
59
White, 536 U.S. at 765, 775-80.
60
Preliminary Draft, supra
note 42, Rule 2.12(5), Canon 2 at 10 (emphasis added).
61
See White,536 U.S. at 776; Family Trust Foundation of Kentucky v. Wolnitzek,
Supp.2d 672, (2004);
345 F.
Family Alliance v. Bader,361 F. Supp.2d 1021, 1039 (2004);
Alaska Right to Life v. Feldman
, No. A04-0239 CV (RRB), slip op. at 5 (D. Alaska July 29, 2005).
commitments made before the judge became a candidate. 62 Judges often have already committed themselves on legal and political issues well before they became candidates for judicial office, either in the form of lectures, books, law review articles, or previous rulings. 63 In essence, Rule 2.12(5) permits judges to sit on cases involving issues on which the judges may have committed themselves on legal issues until the day they declare their candidacy, after which such commitments subject them to recusal under Rule 2.12(5). This effectively joins Rule 2.12(5) with the announce clause in its underinclusiveness, and like the announce clause, renders Rule 2.12(5) insufficiently tailored to satisfy strict scrutiny. 64
Further, a narrower construction can be fashioned to serve the interest in judicial impartiality. Requiring recusal of judges who have pledged or promised "certain results in a particular case" is a more narrowly tailored construction that would adequately serve the State's interest in impartiality. 65 This would preserve the State's interest in an openminded judge
62 See White, 536 U.S. at 779-80.
63 Id. at 779.
64 See Wolnitzek, 345 F. Supp.2d at 696; Bader, 361 F. Supp.2d at 1039; Feldman, No. A04-0239 CV (RRB), slip op. at 5.
65 Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 230 (7th Cir. 1993); Wolnitzek, 345 F. Supp.2d at 698.
without also forbidding privileged speech. 66 Rule 2.12(5) is not so tailored to reflect an interest in openmindedness and judicial impartiality.
Rule 2.12(5) is not narrowly tailored to serve a interest in judicial impartiality when analyzed under White. Instead it reaches protected First Amendment speech. As such, it will likely be found unconstitutional if adopted. 67
E. Proposed Rule 2.12(5) is unconstitutionally vague.
Further, because Rule 2.12(5) encompasses "a public statement that . . . appears to commit the judge with respect to an issue," the Rule is unconstitutionally vague, 68 which the ABA itself has already recognized. 69
F. Required recusal for expressing an opinion on an issue is bad policy.
Of course, the first and most obvious effect of Rule 2.12(5) is to chill judicial candidates from announcing their views on disputed legal and political issues. As a result, voters would be deprived of the information on the candidate's views that the First Amendment protects.
But the damage and disruption to the judicial system is less obvious, but possibly more
66 Buckley, 977 F. 2d at 230.
67 See Family Trust Foundation of Kentucky v. Kentucky Judicial Conduct Commission, 388 F.3d 224, 226 (2004); Wolnitzek, 345 F. Supp.2d at 695; Bader, 361 F. Supp.2d at 1039; Feldman, No. A04-0239 CV (RRB), slip op. at 5.
68 Briffault, supra note 4, at 216-17.
69 Report to the House of Delegates, supra note 14, at 12.
dramatic and devastating. The effect on Justice Breyer has already been noted, but the wideranging implications for all judges must cause one to pause. Judges have not only the duty to recuse, if warranted, but the obligation "not to recuse when there is no occasion for him to do so." 70 In fact, unwarranted disqualification may bring public disfavor to the bench and to the judge personally. The dignity of the bench, the judge's respect for fulfillment of judicial duties and a proper concern for the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or distasteful issues." 71
Thus, Rule 2.12[5] increases exponentially the opportunity for strategic recusal, where parties manipulate which judge considers his or her case. Thus, the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtain the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking." 72
The adoption by the ABA of this Rule in 2003 has already spawned speculation on whether
70 Hinman v. Rogers, 831 F.2d 937, 939 (10 th Cir. 1987).
71 Preliminary Draft, supra note 42, Rule 2.02 [1], Canon 2 at 1.
72 In re Allied-Signal, 891 F.2d 967, 970 (1 st Cir. 1989) (emphasis in original).
Justice O'Connor should have recused for Bush v. Gore. 73 Lawyers hardly need more encouragement to bring disqualification demands.
III. Proposed Rule 2.11(c) and 5 is based on the faulty premise that White only necessitates minor tinkering in the Model Canons.
The Madison Center's original comments only addressed proposed Rule 5.02(d), recommending that Rule 5.02(d) should be revised to only prohibit pledges or promises of certain results in particular cases. Since the publication of the Preliminary Draft of June 30th and the en banc decision of the 8th Circuit, the Joint Commission has directed the Reporter to draft a revised Canon 5 that would bring its provisions "into harmony with only the clearest points expressed in the White opinion." 74 Because this revised Canon 5 is not yet available for comment, the James Madison Center will defer any comments until the revision is available.
CONCLUSION
One general point needs to be made, however, in conclusion. To date, the ABA has taken the narrowest possible reading of the White case and its progeny. The original ABA Working Group "believe[d] that the decision [in White] can and should be read narrowly, leaving the door
73 Grant Geyerman & David Suggs, The 2003 Amendments to the Model Code of Judicial Conduct and Bush v. Gore: An Adventure into Fantasyland, 17 GEO. J. LEGAL ETHICS 773 (2004).
74 Joint Commission, Minutes at 1 (August 5, 2005).
open for the drafting of campaign ethics restrictions that will pass constitutional muster." 75 The Preliminary Draft claimed that "judicial elections differ greatly from elections for other types of office," 76 and then proceeded to make only the most negligible changes in the scope of regulation of judicial campaigns in Canon 5 and to attempt to salvage its regulation of viewpoint expression by judicial candidates by adding the unprecedented threat of disqualification. Ever now, in response to the 8th Circuit's en banc decision, the Reporter has only been directed to make minimal revisions in Canon 5 to reflect "only the clearest points" expressed in the decision.
But it has become clear now, if it was not before, that the Supreme Court, in White, destroyed the foundation of edifice of regulation built by the ABA. Despite this fact, the Joint Commission still seems to think that all that is needed is a few windows repaired. If the ABA would recognize the full significance of the White decision, as the federal courts have, the ABA could play a very constructive role. However, the current resistance can only help induce State Supreme Courts to continue to impose unconstitutional restraints on judicial elections – to great damage to judicial candidates, to the voters, to the courts, and ultimately to the ABA itself. The Madison Center urges the Joint Commission to reconsider its fundamental approach to this issue.
75 Report to the House of Delegates, supra note 14, at 8.
76 Preliminary Draft, supra note 42, Preamble Section at 3.
|
Financial Statements
June 30, 2016 and 2015
(With Independent Auditors' Report Thereon)
Table of Contents
Page
KPMG LLP
Aon Center Suite 5500 200 East Randolph Drive Chicago, IL 60601-6436
Independent Auditors' Report
The Board of Directors Feeding America:
Report on the Financial Statements
We have audited the accompanying financial statements of Feeding America, which comprise the statements of financial position as of June 30, 2016 and 2015, and the related statements of activities, functional expenses, and cash flows for the years then ended, and the related notes to the financial statements.
Management's Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with U.S. generally accepted accounting principles; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditors' Responsibility
Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors' judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Feeding America as of June 30, 2016 and 2015, and the results of its operations and its cash flows for the years then ended, in accordance with U.S. generally accepted accounting principles.
Chicago, Illinois October 7, 2016
Statements of Financial Position
June 30, 2016 and 2015 (In thousands)
See accompanying notes to financial statements.
Statements of Cash Flows
Years ended June 30, 2016 and 2015
(In thousands)
See accompanying notes to financial statements.
Notes to Financial Statements
June 30, 2016 and 2015 (Dollars in thousands)
(1) Organization and Purpose
Feeding America (Organization) is the nation's leading domestic hunger-relief charity. The mission of Feeding America is to feed America's hungry through a nationwide network of member food banks and engage the country in the fight to end hunger. The network is composed of approximately 200 food banks, which serves all 50 states, the District of Columbia, and Puerto Rico. Each member food bank is an independent nonprofit organization that enters into a contract with Feeding America. Feeding America's national office is located in Chicago, Illinois. The public policy office is located in Washington, D.C.
Feeding America is a not-for-profit entity as described in Section 501(c)(3) of the Internal Revenue Code (the Code) and is exempt from federal income taxes on related income pursuant to Section 509(a) of the Code.
(2) Summary of Significant Accounting Policies
(a) Basis of Accounting and Use of Estimates
The financial statements of Feeding America have been prepared on the accrual basis of accounting in accordance with U.S. generally accepted accounting principles. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates.
(b) Cash
Cash is composed of available cash balances. Feeding America maintains its cash in bank deposit accounts which, at times, may exceed federally insured limits. Feeding America has not experienced any losses in such accounts. Management believes that Feeding America is not exposed to any significant credit risk on cash.
(c) Investments and Related Income, Gains, and Losses
Investments in equity and debt securities are reported at fair value. Fair values are primarily determined based on quoted market prices or other market inputs. Interest and dividends on short-term investments are included in operating revenue. Interest and dividends on long-term investments are included in nonoperating activities. All other investment income, including realized and unrealized gains and losses on short-term and long-term investments, is reported as nonoperating activities. Investment returns on donor-restricted endowment funds are recorded to temporarily restricted net assets. Management fees on investments are recorded as a reduction to investment income.
Feeding America invests in various investment securities including U.S. government and agency securities, domestic equity mutual funds, corporate bonds, fixed-income mutual funds, money market funds, international equity mutual funds, hedge fund of funds, and limited partnerships. Investment securities are exposed to various risks, such as interest rate, credit, and overall market volatility. Due to the level of risk associated with certain investment securities, it is reasonably possible that changes
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
in the values of Feeding America's investments could occur in the near term and that such changes could materially affect the amounts reported in the financial statements.
Feeding America records its investments under Accounting Standards Codification (ASC) Topic 820, Fair Value Measurement, for fair value measurements of financial assets and financial liabilities and for fair value measurements of nonfinancial items that are recognized or disclosed at fair value in the financial statements on a recurring basis. ASC Topic 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC Topic 820 also establishes a framework for measuring fair value and expands disclosures about fair value measurements (note 4).
Feeding America applies the measurement provisions of ASC Topic 820 to certain investments in mutual funds and alternative investments that do not have readily determinable fair values. This guidance allows for the estimation of the fair value of investments in investment companies for which the investment does not have a readily determinable fair value using net asset value (NAV) per share or its equivalent. Interests in mutual funds and alternative investment funds are generally reported at the NAV reported by the fund managers, which is used as a practical expedient to estimate the fair value interest therein, unless it is probable that all or a portion of the investment will be sold for an amount different from NAV. As of June 30, 2016 and 2015, Feeding America had no plans or intentions to sell investments at amounts different from NAV.
(d) Contributions Receivable
Feeding America reports unconditional promises to give as contributions. If outstanding contributions are expected to be collected in less than one year, they are recorded at the estimated amount to be ultimately realized. If outstanding contributions are to be paid to the Organization over a period of years, they are recorded at the present value of their estimated cash flows using the prime rate as of the fiscal year-end in the year of donation. Contributions receivable amounts due in excess of one year after June 30, 2016 and 2015 are reflected net of an allowance for uncollectible amounts based on management's judgment, past payment experience, and other relevant factors and have been discounted to net realizable value at a discount rate of 3.50% and 3.25%, respectively. Gross contributions receivable as of June 30, 2016 within one year are $26,036 and from one to five years are $12,546. Gross contributions receivable as of June 30, 2015 within one year are $23,122 and from one to five years are $5,529. Feeding America also has an allowance for uncollectible contributions receivable of $453 and $427 as of June 30, 2016 and 2015, respectively.
(e) Furniture and Equipment
Furniture and equipment are stated on the basis of cost at date of purchase or, if donated, at fair value at the date of donation. Depreciation is computed using the half-year convention straight-line method over the estimated useful lives of the assets.
(f) Gift Annuities
Feeding America enters into agreements with donors in which the donor contributes assets in exchange for an annuity to be paid to the donor or their designee for a specified period of time. Annually, the
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
annuity liability is readjusted based upon actuarial projections of future payments over the remaining life expectancy of the donor or their designee. Upon termination, any residual amount is recognized as nonoperating revenue.
(g) Donated Goods and Services
Feeding America reports the fair value of gifts of donated food and grocery products over which it has control (i.e., variance power) as unrestricted public support and, shortly thereafter, as expense when granted to member food banks. During the years ended June 30, 2016 and 2015, Feeding America distributed approximately 1,369 million pounds and 1,214 million pounds, respectively, of donated product received from approximately 240 national donors and their subsidiaries. The approximate average wholesale value of one pound of donated product at the national level, which was determined to be $1.67 and $1.70, respectively, during 2016 and 2015, was based upon a study performed by Feeding America. Many of the national donors donate food and grocery products directly to local members. Beginning in 2011, Feeding America entered into written contracts with national donors to distribute grocery products directly to its local members. The pounds distributed to member food banks under these agreements amounted to 1,043 million pounds and 904 million pounds as of June 30, 2016 and 2015, respectively. The dollar amount of these pounds distributed to member food banks under these agreements is $1,741,289 and $1,537,285, respectively, and is included within donated goods and services in the accompanying financial statements. The pounds that have been directly donated to Feeding America and then distributed to the member food banks amounted to 326 million pounds and 310 million pounds as of June 30, 2016 and 2015, respectively. The dollar amount of these pounds is approximately $545,240 and $527,095, respectively, and is included within donated goods and services in the accompanying financial statements. Any remaining donations made directly to local member food banks from national donors with whom Feeding America does not have a written agreement are not included in the accompanying financial statements because Feeding America does not have written agreements with such donors granting Feeding America explicit authority over the distribution of such donated goods and services (note 10).
In addition, a number of individuals and organizations have made in-kind donations or volunteered their services to Feeding America. For those services that do not require special expertise, the estimated value of such donated services has not been recorded in the financial statements. In-kind donations and services for which fair value can be validated and requiring specific expertise have been reflected in the financial statements at their estimated fair value. In-kind media support is not reflected in the accompanying financial statements (note 2(i)). For the years ended June 30, 2016 and 2015, Feeding America received $2,288,551 and $2,065,718 in donated goods and services, respectively.
(h) Contributions
Feeding America maintains its accounts in accordance with the principles and practices of fund accounting. Fund accounting is the procedure by which resources for various purposes are classified for accounting purposes in accordance with activities or objectives specified by donors.
These financial statements have been prepared to focus on Feeding America as a whole and to present balances and transactions classified according to the existence or absence of donor-imposed
Notes to Financial Statements June 30, 2016 and 2015
(Dollars in thousands)
restrictions. This has been accomplished by classification of fund balances into three classes of net assets – permanently restricted, temporarily restricted, or unrestricted.
All contributions are considered to be available for unrestricted use unless specifically restricted by the donor. Amounts received that are designated for future periods or are restricted by the donor for specific purposes are reported as temporarily restricted. Amounts required to be maintained in perpetuity by the donor are reported as permanently restricted net assets.
Corporate promotions differ from corporate contributions in that there is a promotional factor involved with the donor. Both Feeding America and the donor receive more advertising and publicity through this type of effort than through a normal corporate contribution. The amount of the funds received is typically based on the promotional activity.
Contributions, including unconditional promises to give, are recognized in the period received. Conditional promises to give are not recognized until the conditions on which they depend are substantially met. A donor restriction expires when a time restriction ends or when the purpose for which it was intended is attained. Temporarily restricted net assets are reclassified to unrestricted net assets upon expiration of donor restrictions and are reported in the statements of activities as net assets released from restrictions. Restrictions expiring on contributions received in the same year result in a reclassification from temporarily restricted to unrestricted revenue.
Feeding America accounts for endowment funds under ASC Subtopic 958-205, Classification of Donor-Restricted Endowment Funds Subject to UPMIFA. ASC Subtopic 958-205 provides guidance on the net asset classification of donor-restricted endowment funds for a not-for-profit organization that is subject to an enacted version of Uniform Prudent Management of Institutional Funds Act (UPMIFA). ASC Subtopic 958-205 enhances disclosures related to both donor-restricted and board-designated endowment funds, whether or not the organization is subject to UPMIFA (note 7).
(i) Donated Media (Unaudited)
Feeding America considers donated media as contributions because they are voluntary nonreciprocal transfers from other entities. However, the value of donated media has not been recognized as donated services revenue in fiscal year 2016 or 2015 as management of Feeding America is currently unable to validate the methodologies used to estimate the fair value of donated media. Accordingly, donated media is not recognized as in-kind contribution revenue in the accompanying financial statements given the major uncertainties about the estimated value of donated media. During the period from July 1, 2015 to March 31, 2016 and the year ended June 30, 2015, Feeding America's Public Service Announcement campaign in partnership with Ad Council received $57,407 and $55,221, respectively, in donated media support, mainly through radio, television, and outdoor channels, as estimated by the Ad Council.
(j) Operations
Revenue is reported as increases in unrestricted net assets unless use of the related assets is limited by donor-imposed restrictions and the restrictions are not met in the current fiscal year. Expenses are reported as decreases in unrestricted net assets.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
Member fees include annual fees assessed to member organizations as well as additional fees for business solutions and fees to help defray the cost of the comprehensive quadrennial hunger study among others.
Food procurement revenue is fees paid by member food banks to the National Office to cover the cost of packaging, transportation, and processing donated food or procurement costs associated with Feeding America's grocery and produce programs.
Conference fees represent registration fees and sponsorships for the various conferences that are sponsored by Feeding America for the benefit of member organizations. Conference fees received but not earned as of fiscal year end are recorded as deferred revenue. Other revenue includes funds received from the sale of Feeding America mailing lists to other nonprofit organizations, settlement funds from legal cases to which courts appointed Feeding America as uninvolved beneficiary, revenue from sublease agreement, and fees for National Office sponsored training programs.
During the course of business, Feeding America receives agency funds on behalf of member organizations. Agency funds received and distributed to member organizations are not reported as revenue, support, or expenses within the statements of activities as Feeding America lacks variance power to direct the use of the funds. During 2016 and 2015, respectively, Feeding America received approximately $95 and $81 in agency funds.
As of June 30, 2016 and 2015, Feeding America accrued expenses of $4,215 and $13,285, respectively, of unconditional promises to give for child hunger programs, technology grants, food sourcing, nutrition, mobile pantry and other vehicles, and general operating support that have been awarded to member organizations. For fiscal year 2016, amounts payable within one year are $3,719 and are included in accounts payable and accrued expenses. Amounts payable within two to five years are $496 and are included in other noncurrent obligations. For fiscal year 2015, amounts payable within one year are $13,268 and are included in accounts payable and accrued expenses. Amounts payable within two to five years are $17 and are included in other noncurrent obligations.
Advertising costs are expensed as incurred.
(k) Income Taxes
Feeding America accounts for uncertain tax positions in accordance with ASC Topic 740, Accounting for Uncertainty in Income Taxes. ASC Topic 740 addresses the determination of how tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under ASC Topic 740, Feeding America must recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the consolidated financial statements from such a position are measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement. ASC Topic 740 also provides guidance on derecognition, classification, interest and penalties on income taxes, and accounting in interim periods and requires increased disclosures. As of June 30, 2016 and 2015, Feeding America does not have a liability for unrecognized tax benefits.
Notes to Financial Statements
June 30, 2016 and 2015 (Dollars in thousands)
(l) Functional Allocation of Expenses
The cost of providing the various programs and supporting services is summarized on a functional basis in the statements of functional expenses. Certain costs are allocated among the program and supporting services benefited.
(m) Reclassifications
Certain 2015 amounts have been reclassified to conform to the 2016 financial statement presentation.
(3) Investments
(a) Overall Investment Objective
Feeding America maintains a short-term and long-term investment portfolio. The purpose of the short-term investment portfolio is to provide sufficient liquidity to meet the financial obligations of Feeding America in a timely manner without requiring liquidation of assets from the long-term investment pool. The investment objectives are preservation of capital, liquidity, and optimization of the investment returns.
(b) Allocation of Investment Strategies
Short-term funds are invested in low or risk-free investments with a high degree of liquidity. Investments should have a maturity for a period not to exceed 180 days. The investment managers are allowed to use derivative securities to reduce portfolio risk. Refer to note 7 for long-term portfolio investment objectives and strategies.
The cost and fair value of short- and long-term investments at June 30, 2016 and 2015 were as follows:
Notes to Financial Statements
June 30, 2016 and 2015 (Dollars in thousands)
Feeding America has invested in alternative investments – hedge fund of funds. The funds are primarily invested in global equity markets and private investment funds. There are no additional funding commitments as of June 30, 2016. Feeding America has the ability to withdraw from the alternative investment all or any portion of its capital as of the last business day of each calendar quarter, with at least 60 calendar days' written notice.
Investment return for the years ended June 30, 2016 and 2015 was as follows:
Investment returns are included in the accompanying statements of activities for the years ended June 30, 2016 and 2015:
Other operating revenue: Interest and dividend income Nonoperating gains and losses – investment return Other changes in temporarily restricted investments: Restricted investment income (loss) Total investment return
Short-term investments at June 30, 2016 and 2015 include $757 and $751, respectively, in a Disaster Relief Fund. Investment fees, included as a reduction of interest and dividends above, were $78 and $79 for the years ended June 30, 2016 and 2015, respectively.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
(4) Fair Value Measurements
(a) Fair Value of Financial Instruments
The following methods and assumptions were used by Feeding America in estimating the fair value of its financial instruments:
- The carrying amount reported in the statements of financial position for the following approximates fair value because of the short maturities of these instruments: cash, accounts receivable, accounts payable, and accrued expenses.
- Short-term and long-term investments: Domestic equity mutual funds, international equity mutual funds, government and agency securities and mutual funds, international and domestic mutual investment funds, corporate bonds and fixed-income mutual funds, limited partnership, and money market funds are measured using quoted market prices at the reporting date multiplied by the quantity held. The carrying value equals fair value.
- Feeding America applies the concepts of ASC Subtopic 820-10 to its mutual funds and alternative investments using NAV as a practical expedient in estimating fair value; however, it is possible that the redemption rights of certain alternative investments may be restricted by the funds in the future in accordance with the underlying fund agreements. Changes in market conditions and the economic environment may impact the NAV of the funds and consequently the fair value of Feeding America's interest in the fund.
(b) Fair Value Hierarchy
Feeding America follows the guidance of ASC Topic 820 for fair value measurements of financial assets and financial liabilities and for fair value measurements of nonfinancial items that are recognized or disclosed at fair value in the financial statements on a recurring basis. ASC Topic 820 establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to measurements involving significant unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are as follows:
- Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that Feeding America has the ability to access at the measurement date. Level 1 assets include cash that comprises demand deposits with commercial banks, domestic and international equity securities, and money market funds that consist primarily of U.S. Treasury obligations.
- Level 2 inputs are observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities. Level 2 assets include government and agency securities, corporate bonds, asset-backed securities, and a limited partnership fund.
- Level 3 inputs are unobservable inputs for the asset or liability.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
Feeding America adopted, and retrospectively applied, the provisions of Accounting Standards Update (ASU) No. 2015-07, Disclosures for Investments in Certain Entities That Calculate Net Asset Value per Share (or Its Equivalent). ASU No. 2015-07 amends ASC Topic 820, Fair Value Measurement, to remove the requirement to categorize within the fair value hierarchy all investments for which fair value is measured using the net asset value (NAV) per share practical expedient.
The level in the fair value hierarchy within which a fair value measurement in its entirety falls is based on the lowest level input that is significant to the fair value measurement in its entirety.
The following table presents assets that are measured at fair value on a recurring basis at June 30, 2016:
Notes to Financial Statements
June 30, 2016 and 2015 (Dollars in thousands)
The following table presents assets that are measured at fair value on a recurring basis at June 30, 2015:
1 Certain investments that are measured at fair value using the NAV per share (or its equivalent) practical expedient have not been categorized in the fair value hierarchy. The fair value amounts presented in this table are intended to permit reconciliation of the fair value hierarchy to the amounts presented in the statement of financial position.
The availability of observable market data is monitored to assess the appropriate classification of financial instruments within the fair value hierarchy. Changes in economic conditions or model-based valuation techniques may require the transfer of financial instruments from one fair value level to another. In such instances, the transfer is reported at the beginning of the reporting period. Feeding America evaluated the significance of transfers between levels based upon the nature of the financial instrument and size of the transfer relative to total net assets available for benefits. There were no transfers between Level 1, Level 2, or Level 3 for the fiscal year ended June 30, 2016.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
(5) Commitments and Contingencies
(a) Operating Leases
On August 14, 2000, Feeding America entered into a noncancelable operating lease for certain office space in Chicago, Illinois that commenced on January 1, 2001, after substantial completion of Feeding America's renovation of the premises. Feeding America has amended the operating lease periodically to include additional office space.
On May 11, 2007, Feeding America entered into a noncancelable operating lease for certain office space at One Constitution Avenue, N.E. in Washington, D.C. that commenced on May 1, 2007 and expired on June 1, 2012. On February 24, 2012, Feeding America entered into a noncancelable operating lease for certain office space at 1150 18th Street, N.W. in Washington, D.C. that commenced on June 1, 2012.
Both leases contain annual escalation clauses, and accordingly, rent expense is recorded on the straight-line basis over the life of the respective leases. Amounts reported in the accompanying statements of financial position as leases payable represent rental expense recognized in excess of lease payments made as of June 30, 2016 and 2015. Lease expense under the terms of all operating leases amounted to approximately $1,586 in 2016 and $1,619 in 2015 and is reported within occupancy expenses.
In February 2013, Feeding America entered into a sublease agreement with a third party, whereby the third party leased a portion of Feeding America's office space through January 2018. Sublease monthly payments started in July 2013.
Future minimum lease payments as of June 30, 2016 are as follows:
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
Future minimum sublease payments to be received as of June 30, 2016 are as follows:
Fiscal year ending June 30:
2017
$
164
2018
97
Total future minimum sublease payments $
261
(b) Line of Credit
Feeding America has a $10,000 secured line of credit from its primary bank that bears interest at Wall Street Journal LIBOR Daily Floating rate plus 1.40%. The line of credit is secured by a general lien on the assets of Feeding America. There were no borrowings outstanding under the line of credit at June 30, 2016 and 2015. The line of credit expires on November 30, 2016.
(c) Loan Payable
On August 31, 2009, Feeding America entered into a loan agreement with an unrelated foundation for $2,500. Proceeds from the borrowing were loaned to member organizations through a competitive bid process for the acquisition of store donation and mobile pantry vehicles (note 8). In August 2014, the final principal payment of $562 was made to the foundation. The loan bore interest at a fixed rate of 2.00% per annum and principal payments were due semiannually beginning June 30, 2010 through maturity of August 31, 2014.
(d) Litigation
Feeding America is named in various lawsuits arising in the ordinary course of business. Management is not aware of any asserted lawsuits against Feeding America as of June 30, 2016. Feeding America has not provided for any potential future losses arising from any asserted or unasserted litigation in the accompanying financial statements. Despite the inherent uncertainties of litigation, Feeding America is not aware of any litigatory matters that may have a material adverse impact on the financial condition of Feeding America at this time.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
(6) Temporarily Restricted Net Assets
Donor restrictions on temporarily restricted net assets consist of the following at June 30, 2016 and 2015:
(7) Endowments
Feeding America follows the guidance of ASC Topic 958, Not-For-Profit Entities, related to net asset classification and required disclosures of donor restricted endowment funds for a not-for-profit organization that is subject to an enacted version of UPMIFA.
Feeding America's endowment consists of approximately 13 individual funds established for a variety of purposes including donor-restricted endowment funds and funds designated by the board of directors to function as endowments. Net assets associated with endowment funds, including funds designated by the board of directors to function as endowments, are classified and reported based on the existence or absence of donor-imposed restrictions.
Endowment net assets consist of the following at June 30, 2016:
Notes to Financial Statements
June 30, 2016 and 2015 (Dollars in thousands)
Endowment net assets consist of the following at June 30, 2015:
Changes in endowment net assets for the year ended June 30, 2016 are as follows:
Changes in endowment net assets for the year ended June 30, 2015 are as follows:
(a) Funds with Deficiencies
From time to time, the fair value of assets associated with individual donor-restricted endowment funds may fall below the level that the donor or UPMIFA requires Feeding America to retain as a fund of perpetual duration. Deficiencies of this nature are reported in unrestricted net assets. Subsequent gains
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
restore the fair value of the assets of the endowment fund to the required level. There were no deficiencies as of June 30, 2016 and 2015.
(b) Return Objectives and Risk Parameters
Feeding America has adopted investment and spending policies for endowments assets that attempt to provide a predictable stream of funding to programs supported by its endowment while seeking to maintain the purchasing power of the endowment assets. Endowment assets include those assets of donor-restricted funds that the organizations must hold in perpetuity or for a donor-specified period as well as board-designated funds. Under this policy, as approved by the Board of Directors, the endowment assets are invested in a manner that is intended to produce results that exceed the price and yield results of appropriate benchmarks while assuming a moderate level of investment risk.
(c) Strategies Employed for Achieving Objectives
To satisfy its long-term rate of return objectives, Feeding America relies on a total return strategy in which investment returns are achieved through both capital appreciation (realized and unrealized) and current yield (interest and dividends). Feeding America targets a diversified asset allocation that places emphasis on investments in equities, bonds, and other securities in a 38-42-20% ratio to achieve its long-term return objectives within prudent risk constraints. Major investment decisions are authorized by the Board's Stewardship Committee, which oversees the investment program in accordance with established guidelines.
(d) Spending Policy and How the Investment Objectives Relate to Spending Policy
Feeding America has a policy of appropriating for distribution each year 3% of its endowment funds' average fair value over the prior three years through June 30 preceding the fiscal year in which the distribution is planned. In establishing these policies, Feeding America considered the expected return on its endowment. Accordingly, Feeding America expects the current spending policy to allow its endowment to maintain its purchasing power by growing at a rate equal to planned payouts. Additional real growth will be provided through new gifts and any excess investment return.
(8) Related-Party Transactions
For the years ended June 30, 2016 and 2015, Feeding America recorded approximately $31,015 and $29,497, respectively, in cash and pledges and $1,342,179 and $1,327,102 in goods and services from companies that have representatives who are members of Feeding America's board of directors. At June 30, 2016 and 2015, Feeding America had $13,318 and $16,952 of pledges receivable, respectively, from companies that have representatives who are members of Feeding America's board of directors.
During 2011, Feeding America funded a second round of loans using proceeds from repayments from the first round. Loan terms are consistent with first round of loans and the loan agreements expire on December 31, 2014. Through a competitive bid process, 10 additional member food banks received funds for the purchase of vehicles in the amount of $1,168. All payments were received in fiscal year 2015, and therefore, no balances were outstanding as of June 30, 2015.
Notes to Financial Statements June 30, 2016 and 2015 (Dollars in thousands)
In January 2013, the loan agreement with the foundation was amended to allow Feeding America to use the proceeds from repayments to finance food banks' technology upgrades. Through a competitive bid process, five member food banks received funds of $75 each, with a three-year term. Loans bear interest at 2.00% beginning in year two of the agreement and escalate by an additional 1.00% the following year. As of June 30, 2016 and 2015, $0 and $75 are outstanding, respectively. At June 30, 2016 and 2015, an allowance of $0 and $7, respectively, was recorded as a reduction to notes receivable.
On May 22, 2014, Feeding America issued a $750 revolving line of credit to a start-up food bank member for the acquisition of trucks and warehouse equipment. The line of credit bears interest at LIBOR plus 2.00% beginning in year three of the agreement. The agreement expires on December 31, 2017. As of June 30, 2016 and 2015, $638 and $413 are outstanding, respectively.
On June 24, 2015, Feeding America issued a $300 revolving line of credit to a food bank member for operating purposes. The line of credit bears interest at the LIBOR three-month maturity rate plus 2.00% beginning in year three of the agreement. The agreement expires on June 30, 2017. As of June 30, 2016 and 2015, $160 and $80 are outstanding, respectively.
(9) Retirement Plan
Feeding America provides a 401(k) defined contribution plan (the Plan) for substantially all employees. In addition to employee contributions, Feeding America contributes 3.00% of each participant's compensation to the Plan. Feeding America makes an additional matching contribution of 3.00% if the employee contributes a minimum of 1.00% of their salary to the Plan. These employer contributions are made beginning with the employee's participation in the Plan (the employee's date of hire). Total retirement expense and contributions made by Feeding America for the years ended June 30, 2016 and 2015 were approximately $1,324 and $1,156, respectively.
(10) Direct Donations
During the years ended June 30, 2016 and 2015, the Feeding America Network distributed approximately 1,889 million pounds and 1,797 million pounds, respectively, of food and grocery products. This total includes donations that were distributed directly to member organizations from national donors as well as donations over which Feeding America exercises control. Food and grocery products distributed directly to member organizations, totaling approximately 519 million and 583 million pounds for the years ended June 30, 2016 and 2015, respectively, have not been recognized in the accompanying financial statements as Feeding America did not exercise control over the distribution of these donations.
(11) Subsequent Events
In connection with the preparation of the financial statements and in accordance with ASC Topic 855, Subsequent Events, Feeding America evaluated subsequent events after the statement of financial position date of June 30, 2016 through October 7, 2016, which was the date the financial statements were available to be issued and determined there were no other items to be disclosed.
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Appendix E – Milledge Recommendations
THE "BRIMBLE" RECOMMENDATIONS
The Inquest into the cause and manner of Dianne Brimble's death was terminated under the provisions of Section 19 Coroners Act 1980 (the old Act).
The inquest has been resumed pursuant to Section 79 Coroners Act 2009 (the new Act) for the purpose of coronial recommendations.
Section 82 (the old Section 22A) provides:
(2) Without limiting subsection (1), the following are matters that can be the subject of a recommendation:
(1) A coroner (whether or not there is a jury) or a jury may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned
a. public health and safety,
(3) & (4) not applicable
b. that a matter be investigated or reviewed by a specified person or body.
Formal findings of fact were published 30 November 2010. These recommendations should be considered with reference to those findings.
The coroner has been greatly assisted in formulating recommendations by the comprehensive and very relevant submissions of parties to the inquest:
* Mr Sheahan SC and his client P&O Cruises Australia
* Mr Mark Brimble and the International Cruise Victims (Australia) Pty Ltd and
I have given careful consideration to matters raised in each submission and whilst there are some differences, for the most part they are complimentary. Clearly the objectives are the same.
In its submissions P&O Cruises Australia sets the tone for the changes that were very much needed within the cruise industry: I quote from the beginning of their document:
"The death of Ms Brimble was an unexpected tragedy that has affected the lives of many people, most especially her family.
"P&O Cruises Australia (P&O Cruises) has done and continues to do all it that it can to ensure that such a tragic event never occurs again, and that for Ms Brimble there is a legacy of constructive reform.
"Since 2002, and particularly since 2006, P&O Cruises has fundamentally changed its operations. The inquest has been the catalyst for many of these reforms. As P&O Cruises has acknowledged and deeply regrets, there were shortcomings in its response to Ms Brimble's tragic death. P&O Cruises has sought to ensure that they will never occur again"
Mr Brimble's detailed submission contains extracts from the International Covenant on Civil and Political Rights.
He and his Association use the Covenant as a backdrop to weigh in favour of legislative reform of the cruise industry. Significantly he quotes Article 6(1) which provides that "Every human being has the inherent right to life. This right shall be protected by law".
Mr Brimble asserts that Article 6 "requires Government to take appropriate steps to safeguard the lives of those within its jurisdiction. Consequently there is a positive obligation to prevent death"
He further submits:
The right to life has been too often narrowly interpreted. The expression 'inherent right to life' cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.
"The Human Rights Committee has stated:
Accordingly, it is incumbent upon the State and Commonwealth Governments to take steps to address the short comings in regulating the Cruise Ship Industry to protect the rights of those that board these ships".
In July 2010, the United State Congress passed the Cruise Vessel Security and Safety Act (the 'Kerry' Act).
Difficulties within the cruise industry were identified by a number of sub committees reporting to the Congressional Committee of Inquiry. The Senate and the House of Representatives made formal findings and they are set out in the preamble to the Act. The issues that were identified are the same issues that face Australian Authorities when attempting to regulate in the areas of safety, crime prevention, reporting of crime and its subsequent investigation.
The 'Kerry' Act legislates in the following areas:
* Video recording – maintaining surveillance
* Vessel Design, Equipment, Construction, and Retro Fitting Requirements
* Safety Information – Crime prevention and Response Guide
* Confidentiality Requirement for all medical, psychological and other related services accessed by passengers/staff
* Sexual Assault – provision for medical assistance, counselling and other services
* Controlled Access to Passenger Staterooms
* Importantly there are Enforcement provisions for individuals and corporations that fail in the requirements of the Act.
* Maintaining Log Books and Strict Reporting of Crimes. Incident Data to be Reported and Available via Internet
The facts as they relate to the death of Dianne Brimble illustrate the need for the Australian Federal Government to adopt and identical approach to Federal legislation as the United States Congress.
President Obama signed the Bill into Law on 29 July 2010. The International Cruise Victims Australia with Mr Brimble as it Director, were active and influential in its introduction.
I Recommend that the Australian Federal Government establish a special Parliamentary Committee to consider the same issues that have been addressed in the 'Kerry' Act.
The committee should have specific regard to:
* the overlap of the various Coronial Jurisdictions with power to investigate the 'cause and manner' of death (even extending beyond the limits set by the Crimes at Sea Act ) and those of the many State, Territory and Federal Police Forces and other investigative bodies
* cross jurisdictional issues that face the States, Territories and the Commonwealth
* the need to adopt the 'Kerry' Act to the specific demographic of this country
* Flag State status of the vessel be disregarded if that State (Country) is not equipped to undertake the rigor of a thorough and competent investigation
* ensuring that when determining the jurisdiction to be the 'lead investigator' into serious crime, that the competency of the jurisdiction to ensure best practice be the foremost consideration
* ensuring that the prosecution of offenders be firmly within the jurisdiction of Australian authorities
With regard to the latter requirement, it is respectfully suggested that a similar provision to Section 272 of the Criminal Code that provides Australian citizens in foreign countries to be prosecuted for specific sexual offences could be implemented by the Commonwealth to deal with its citizens when travelling on ships registered and controlled outside Australia.
The nature and the mechanics of any provision of this legislation would require detailed analysis by the Commonwealth Attorney General's Department and the various Parliamentary Committees.
Consideration should be given to the use of Federal Police Officers as 'on board' investigators travelling with the ship at all times. It would not be intended that their presence be intrusive but they would be reactive to crime reporting and could ensure a timely investigation. They would also have significant impact on crime prevention.
I recommend that the Federal Parliamentary Committee consider legislating for the attachment of a Federal Police Officer (or Officers) to travel with a ship to ensure a timely and appropriate response to crime.
The Crimes at Sea Act 2000 empowers the State to act in criminal matters up to a distance of 12 nautical miles from the baseline of the State and the Commonwealth beyond 12 and up to 200 nautical miles. This means that when a ship travels
beyond those jurisdictional limits the Flag State of the vessel may be a determinant in the jurisdiction to act.
It appears that this is a significant impediment to the investigative agencies timely understanding of which country has the lead in the criminal investigation. Given that each cruise must be chartered prior to embarkation, consideration should be given to where the jurisdiction would lie at each point in the journey.
Until there is Commonwealth Legislation that can give certainty to the issues of jurisdiction and crime investigation, each State and Territory Police Force should provide guidelines for their investigators.
The guidelines should set out the powers police have to conduct investigations on board ships. The guidelines should re enforce the powers that the Master of the Vessel has in detaining and otherwise dealing with suspects and other miscreants and how they can supplement and support the police.
I recommend that the Federal, State and Territory Police Commissioners devise, in consultation with each other, firm guidelines clearly setting out the geographical jurisdiction of each investigative agency.
The Coroners of each State and Territory should be consulted to ensure the requirements of their respective Coroners Acts are not overlooked particularly when dealing with the coroner's ability to deal with persons who have died, or suspected to have died outside the jurisdictional limits of the Commonwealth.
In recent years there have been a number of deaths reported to the New South Wales State Coroner under the provisions of Section 13C (now Section 18 new Act). The 2000 and 2002 Bali Bombing victims, the Tsunami Victims 2004, the murder of the 'Balibo Five' journalists, the shooting of Private Jake Kovco and many others.
Investigating the death of Dianne Brimble and the resulting inquest was resource poor but complex and challenging for the limits of the State jurisdiction. There is a real and pressing need for these 'mega' inquests to be undertaken by a Federal Coroner who would have the investigative and administrative resources that are lacking at State level. I agree with Counsel Assisting that these significant and important investigations would often have a substantial impact on the Commonwealth.
The Federal Coroner should be a Federal Court Judge to reflect the importance and scope of the role.
I recommend that the Commonwealth Attorney General establish a Federal Coronial Jurisdiction. A Federal Court Judge should be appointed as the Federal Coroner.
The Ports Authority and Australian Customs should increase their drug detection and deterrent procedures to ensure that all passengers, visitors, crew and staff of every ship are properly scanned. Scanning should not be random or target based but every individual should undergo its rigors.
The use of drug detection dogs at each and every port is required.
I recommend that passengers and crew boarding all vessels at Australian ports be subjected to the rigors of drug detection scanning.
I recommend the drug detection dogs be used at all Australian ports.
I adopt the submissions of Mr Brimble and the International Cruise Victim's Association. I support his careful analysis of the industry and the recommendations he believes would equate to best practice.
I also acknowledge the significant improvements to safety and security implemented by P&O Cruises Australia. I commend them for their immediate response to their deficiencies as evidenced at inquest.
The timely and appropriate action has eliminated the need for the coroner to make recommendations on many of the issues of concern.
Whilst I accept Mr Brimble's submission that P&O is only one of many cruise lines that carry Australian citizens and operate in our waters, P&O has undergone substantial reform, no doubt at significant cost but in doing so has ensured its corporate integrity and the comfort and safety of future passengers.
Mr Sheahan has urged the coroner to regard the reforms P&O has introduced as 'best practice for the industry'. Whilst I have no difficulty in doing that, I agree with International Cruise Victims Australia and Mr Brimble that 'best practice' must be seen as compete legislative reform visa vis the 'Kerry' Act.
It should be relatively simple to incorporate the already existing good work of P&O into Federal legislation.
The current protocols that are relied on:
* Pacific Islands Chiefs of Police
* National Protocols for Reporting Crimes at Sea
have no effect at law.
P&O concludes in its submission ":the broader adoption across Australian cruise industry of the kinds of reforms that P&O Cruises has voluntarily undertaken in the course of this inquest (and that are envisaged by the Kerry Act), would assist in ensuring the safety and security of all passengers, regardless of the identity of the particular cruise operator." I agree.
I recommend that the Federal Government Committee established to consider the legislative reform of the cruise industry (in the same terms as the 'Kerry'
Act) have regard to the issues and recommendations of Mr Mark Brimble and the International Cruise Victims of Australia. These recommendations are supported by the coroner.
I recommend to that Committee that they have regard to the submission and reforms undertaken by P&O Cruises Australia when considering the development of legislation and policy.
Following a number of concerns that were raised by Professor Duflou, Institute of Forensic Medicine Glebe, regarding the preservation of the body awaiting post mortem and the collection of specimens needed for forensic medical examination (eg the taking of samples from the 'vitreous humor' to ensure the best possible analysis for drug detection), NSW Health and Commonwealth Health should convene a joint committee to have regard to the needs all aspects of post mortem examination and autopsy.
I recommend that Commonwealth Health and New South Wales Health establish a committee to set 'best practice' guidelines for the preservation of bodies requiring examination 'post mortem' where the death occurs outside the jurisdiction limits of the State, Territories and Commonwealth.
I direct that these recommendations and copies of the submissions for P&O Cruises Australia (withholding sensitive material that is ordered not to be published or displayed) and those of Mr Mark Brimble and International Cruise Victims Association Pty Ltd together with my 'finding; be sent to:
* The Commonwealth Attorney General
* The Prime Minister
* Minister for Infrastructure and Transport
* The Commissioner, Australian Federal Police
* Minister for Health and Aging
* The Premier of New South Wales
* Minister for NSW Health
* The NSW Attorney General
* NSW Police Commissioner
Magistrate Jacqueline M. Milledge (Former Senior Deputy State Coroner) 3 December 2010
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INNOVATIVE COORDINATION OF AGRIBUSINESS CHAINS AND NETWORKS
E.F.M.Wubben Geoffrey Hagelaar
Abstract
To facilitate scientifically grounded innovative forms of strategic network coordination, this paper integrates two major bodies of literature on competitive advantage. The two bodies of literature are the industry-oriented outside-in approach, and the competence-oriented inside-out approach, here homogenized along the dimensions of degrees of firm embeddedness, respectively, the broadness of shared resource bases. The elements detailed are interfirm relationships, resource bases, network governance instruments, coordination mechanisms, the impact of events on network structures, and the active mobilisation of actors and resource. Thereby, the paper is able to detail 5 generic types of business networks. Next, it relates 21 network governance instruments to type of partnerships (binding vs loosening), forms of interaction (cooperative vs opportunistic). The realized reduction of network complexity enhances conceptual transparency and increases the instrumental usage of this research for effective network coordination by businesses. An integrated case illustrates the usefulness of the various concepts and the coherency of the different elements.
KEYWORDS: Agribusiness chains and network coordination, network theory, innovative institutions.
INTRODUCTION
In difficult times organizing effective business networks becomes one of the key tasks of companies in order to (re-)gain competitive advantage, which requires clarification of the different elements in networks coordination. Networks have a long and diverse history in business, society, and in research, but it is only of recent date that the focus of business, consultancy and research shifts towards its value creation and value delivery (Ritter et al., 2004). That is, we see a rise of interest in business networks, towards managing collaborative arrangements to gain or sustain competitive advantage vis-à-vis outside competitors. In the emerging business world of chains and networks one observes a wide spectrum of collaborative networks, for example R&D- networks amongst pharmaceuticals, standard setting networks in consumer electronics, flexible industrial districts, guanxi networks, airliners' global hub-and-spoke networks, physical electricity grids, optimized retailer supply chains, and virtual mobile phone networks. Firms experience increasing difficulty to maintain their competitive positions by relying exclusively on current activities realised by owned resources and capabilities. 'A business enterprise looks more like a linking unit where its strategic attributes lie in how it connects other market participants to each other.' (Hakansson & Snohota, 1995). The positive relation between networks and competitive advantage seems to be uncontroversial. Controversial are the sources and determinants of the competitive advantage of networks and their consequences for understanding different types of types, and the normative structuring on networks, i.e. design, management, and governance. By detailing 5 business network it is our aim to enhance conceptual transparency and increases the instrumental usage of network
research in structuring business networks. The application to the Dutch horticultural network serves as illustration.
Regarding the sources and determinants of competitive advantage there are two broad perspectives.: the inside-out and the outside-in perspective, each largely ignoring the insights developed by the other. The industry-centric outside-in perspective focuses on the influence of the interfirm relationships to explain the behaviour of individual firms and networks of firms. The competence-centric inside-out perspective focuses on the resources and competences of firms and networks. They appear as competing explanations of competitive advantage. The inside-out perspective focuses on how broadly competences of individual firms are intertwined for the collective aim of the network. The outside-in perspective suggests that the organization of networks occurs either through firm-individual responses to external competitive pressure or through collective, embedded firms. By this paper we detail the insights of viewing these as complementary explanations of business networks.
In this paper, taking an strategic approach, we argue that integrating these two perspectives is necessary to gain more overall insight of the complexity of organizing networks to achieve competitive advantage. Indeed both perspectives, although paying attention to different aspects, focus on the same issue. For instance, the inside-out concentrates on the fit between the firm strategy and their business environment, whereas the outside-in perspective takes other factors in consideration like the business relationships and ties. We will use illustrative typologies, for a taxonomy brings a systematic grouping of items, using a small number of criteria, making it easy to distinguish and discuss cases. It facilitates the justified reduction of network complexity, which is one of the most important tasks in chain and network management (Hanf & Dautzenberg, 2006, 81). Combining the two bodies of knowledge will result in a theoretical framework in which two dimensions of networks' organization will be related as two axes to present different types of networks. The resulting quadrants define four types of network organization which locus will be reflected in the quadrant names.
To assess the usefulness of the selected concepts every step will be illustrated by an application of the presented concept. The illustration is from the Dutch horticultural sector, more in particular its potted plant sector. The Flowers and Food cluster is known for long to be the strongest cluster of the Netherlands (Snijders et al., 2007), featuring cut flowers, potted plants, bulbs and vegetables as its most competitive sectors thereof (Jacobs et al., 1990; Porter & Van der Linde, 1995; Porter 1998), looking at the relative share in international exports (Jacobs & Lankhuizen, 2006); and the Balassa index (Hinlopen & Van Marrewijk, 1999). The potted plant sector suits our objective, because its firms combine efforts in business networks such as cooperatives, boards, councils and trade associations (Porter, 1998). Nevertheless, although the value of Dutch potted plants exports amounts to EUR 1.1 bln per year, that is 70 percent of the exports by European countries, the projected figures on consumption patterns and export growth indicates that the Dutch may loose export market share. Therefore, the sector has, united forces in the platform Flor-I-Log to formulate and implement strategies to strengthen its position in Europe. The illustrative sections will focus on the following question: What new organizational forms can be implemented in the Dutch PP-sector to foster its ambition?
BUSINESS NETWORKS: WHAT ARE WE TALKING ABOUT?
Network research is diverse, for founding disciplines such as sociology, communications, psychology, economics, biology and medicine, logistics and organizational behavior, bring about a proliferation of terms, concepts, mechanisms, and studies, resulting in a multitude of partially contradictory results (Miles & Snow, 1986, 62; Contractor et al., 2006)). For example, it takes Todeva (2006) 16 pages to explain no less than 89 concepts. Moreover, when we look for articles with network(s) in the title, within the international database SCCI, we already track 5773 articles in the social sciences in the period 1995-09/2007, 327 articles of which are printed in the top-13 scientific business journals. At this moment, network research orients itself to different levels of analysis, that is the personal network, firm internal or intrafirm networks, dyadic or relationship level, supply chain, business network, industry network, the country level, and even the global level of analysis (Ritter et al., 179; Hagedoorn, 2006; Contactor et al., 2006). The literature on networks is dominated by descriptive empirical studies, which comes at a loss of providing few widely applicable lessons (Croom et al., 2000; Harland et al., 2001). Although, there is no prevalent theory of networks (Sacchetti & Sugden, 2003), business-oriented network literature tries to understand behavior of firms via different forms of embeddedness (Granovetter, 1985) and their complex interdependencies (Hagedoorn, 2006), to arrive at normative conclusions.
Interfirm relations can create value in combining firm resources, knowledge, and assets which will be difficult to be imitated by competitors. The value created originates from network characteristics, like relationships and the flow of resources between independent firms (Jones et al, 1997). Despite sectoral and disciplinary differences, business networks have a number of defining features; a network requires organizations and/or individuals, with a degree of autonomy, systematically interconnected, and who have common goals, or interests ( Pitsis, 2007). Business or strategic networks may be further characterized by the fact that the network is an intended arrangement between actors, lacking an organizational authority to arbitrate (Moller & Svahn, 2003). Based on a literature review, Todeva defines Business networks as 'sets of repetitive transactions based on structural and relational formations with dynamic boundaries comprising interconnected elements (actors, resources and activities). Networks accommodate the contradictory and complementary aims …and facilitate joint activities and repetitive exchanges' (Todeva 2006, p.15). In their overview on business networks. Ghisi & Martinelli (2006) offer some 17 definitions of business networks. In this paper we use the term networks for business networks, broadly speaking. We define a network as autonomous firms, who co-operate systematically on their complementary/shared objectives, with joint activities and repetitive exchanges to add value for clients.
EXPLAINING COMPETITIVE ADVANTAGE AT NETWORK LEVEL
The most general idea of network literature is that inter-firm relationships can create relational rents which go beyond the efficiency arguments of transaction cost analysis. Although the understanding of networks has a long history in research, it is only of recent date that the focus shifts towards their role in value creation and delivery, i.e. in managing business networks (Ritter et al., 2004, p.175). Interfirm relations can create value in combining resources, knowledge, assets which will be difficult to be imitated by competitors. This added value originates from network
characteristics like inter-firm relationships and the flow of resources between independent units (Jones et al., 1997).
Roughly speaking, there are two major bodies of theory and research on competitive advantage (Wit & Meyer, 2004). These two major bodies are represented by the outside-in and inside-out perspective. From the outside-in perspective competitive advantage is viewed as a firm's ability to adapt to industry forces. Some well known concepts are Porter's five forces-framework (Porter, 1980), and the strategic group analysis (McGee & Thomas, 1986). This industry centric view, in other words, explains competitive advantage of a firm or network which is triggered by activities of competitors and other industrial parties.
The inside-out perspective views competitive advantage from the angle of competence of a firm or network (e.g.. Grant, 1991) The level of development of valuable resources and competencies and capabilities assembled within a network determines whether or not a network can compete with another network. This competence-centric approach argues that resources, skills and capabilities supports and stimulates competitive advantage. Network creation and orchestration suits this view of taking the lead on the basis of superior competences.
What happens when we treat these two perspectives as parallel explanations for competitive advantage? Both perspectives focus on how competing economic activity, in this case coordinated within a network, should be managed. The inside-out perspective within a network setting can be described as the diversity of resources that can be accessed (see Toms & Filatotchev, 2004): extensive – narrow resource base. The outside-in perspective highlights the fact that embedded firms within a network may take others more as competitors or more as partners, together responsive to developments in their environment: discrete – embedded (Meyer, 2007). Our objective is to present an integrative framework to explain the relation between business strategy and organizing networks.
COORDINATING ECONOMIC ACTIVITY FOR COMPETITIVE ADVANTAGE: WHAT IS OUR NETWORK POSITION?
Our structuration of networks is based on two dimensions. These dimensions give managerial answers to the question how to manage economic activities; (1) by managing the access to resources of involved parties and (2) by managing interfirm relationships. Additionally, we will detail a set of network alternatives where the geographical aspect is explicitly dealt with. .
Interfirm relationships: Discrete – Embedded
The concept embeddednes focuses directly at interconnectedness of parties in a network and in line with that interconnectedness of relationships. The IMP-group strongly advocates this approach to business (Anderson, Hakansson, Johanson, 1994, Hakansson & Snehota, 1995). Collaboration is directed at strengthening the position of partners; adding value. Every relation balances between competition and partnership. It is argued that companies embed themselves intentionally in a web of durable collaborative relations whether or not those relations are loosely or more tightly coupled. Embeddedness holds economies of time, integrative agreements, allocative efficiency, and complex adaptation. However, embeddedness can derail economic performance when the network becomes more and more dominant (resource base is narrow); the firms receives information and absorbs info on structural changes and shocks too late (Uzzi, 1997). The discrete organization perspective points at the idea, inspired by neo-classical economists, that organizations are fundamentally driven by
self-interest. Competition is, from this perspective, the natural state of affairs. Bargaining for price between buyers and sellers, grasping opportunities to get the upper hand over rivals etcetera motivate companies to strengthen the competitive position over others. Collaboration is aimed at inhibiting competition (De Wit et al., 1998, 509-511). An overview of these approaches is given in Table 1.
When we relate interfirm relationships to networks, one may divide networks along two dimensions, i.e. between dynamic vs routinized supply networks, the degree of network influence of the focal firm as the second differentiator (see figure 1)(Harland & Knight, 2001). This figure, grounded on extensive and diverse data gathering, places the key activities in the corners of the 4 boxes. For example, dynamic networks tend to compete primarily on innovation with rapid technological change. Partner selection and decision-making are key in
TABLE 1
2 Views on interfirm relationships Source De Wit & Meyer, 1998, 2004, p.512
| | Discrete Organization | Embedded Organization |
|---|---|---|
| | Perspective | Perspective |
| Emphasis on | Competition over cooperation | Cooperation over competition |
| Preferred position | Independence | Interdependence |
| Environmental structure | Discrete organizations | Embedded organizations |
| | (atomistic) | (networked) |
| Firm boundaries | Distinct and defended | Fuzzy and open |
| Inter-firm relations | Arm’s length and transactional | Close and structural |
| Interaction outcomes | Mainly zero-sum (win/lose) | Mainly positive-sum (win-win) |
| Interaction based on | Bargaining power and | Trust and reciprocity |
| | calculation | |
| Network level strategy | No | Yes |
| Use of collaboration | Temporary coalitions (tactical | Durable partnerships (strategic |
| | alliances) | alliances) |
| Collaborative arrangement | Limited, well-defined, contract- | Broad, open, relationship- |
| | based | based) |
networks with a dominant focal firm. The high level of influence of this orchestrator was caused by two factors: 1) His direct added value to the network or innovative capability was large. 2) His provision of access to the rest of the network (bridging) was considered critical by other firms. It may be in either dynamic or routinized networks that a focal firm is able to dominate, manage the network. This firm may hold a mainly positive sum perspective open to reciprocity and network strategies. However, firms state in interviews that when focal firms do not strongly influence the network, they typically find themselves having to cope with network operations (Harland et al., 2001) , taking mainly a zero-sum approach, where power and transactional relationships dominate. There, motivation and allocation of costs and benefits are critical issues at network level. There is positive and negative evidence on success
FIGURE 1 2001.
rates of dominated alliances vs balanced alliances (Nooteboom, 1999, 83). Key networking activities in routinized supply networks are equipment integration and info processing to optimize costs and stocks.
In the Potted plant sector process innovations and stock minimization dominates product innovation, although varieties of flowers are abundant; This suits a routinized network (figure 1, right side). Next, the ambition of Flor-i-Log is to orchestrate an expanding network by spreading out current sourcing and trading activities over Europe. However, the outsider observes something different; so far progress in Flor-i-Log signals an urgent and ongoing need to activate and motivate firms in the network. That does not characterize network orchestration, but, to the contrary, a group of firms that perceive they have to cope with a network, are subject to it (figure 1, top-right area). Indeed, discussions are sensitive on the allocation of costs and benefits; what is shared and what is individually realized?
Access to resources: extensive – narrow resource base
Business network literature focuses on the strategic resource content. Managerial and entrepreneurial resources drive growth and diversification. Such resources might include specialized production facilities, trade secrets, and engineering experience. They also include firm specific, idiosyncratic knowledge assets. These firm specific factors are traditionally considered as the major drivers of strategic change according to the resource based view. The clustering of firms in networks may be promoted by through sharing trade secrets and drawing on local pools of experience and skilled labour. Organizational diversity and network characteristics are likely to be closely influenced by how firms accesses resources. Large and diverse organizations have, by definition, control over a wider resource base and have the option to internalize them using a hierarchical
structure. Similarly a small company, which has a shortage of resources, has to access resources via the market (Toms & Filatotchev, 2004).
The resource base is emphasized in the following typology, distinguishing between lower and higher product complexity on the one hand, with supply networks of innovative/unique products versus functional products as a second differentiator (see figure 2) (Lamming et al., 2000). An extreme product of both high complexity and uniqueness is the Twinscan by ASML, a high-tech lithographic machine for the production of ICs, costing 20 million per system. In this field of the matrix, speed and quality supremacy are critical. The same is true for unique or innovative products that are less complex. Here, the information exchange is lower for it may be to the advantage of competitors. In networks with complex but functional products, like most cars, we see that sustainable quality and costs are critical in competition. In the last category we have standardized produce like soft drinks or DVD-recorders, where economies of scale are critical. As products are re-invented or become mature over time they may change form one box to another box. The network must orient itself to the related competitive priority and sharing of resources.
FIGURE 2 Supply network typology. Source: Lamming et al. (2000).
At product level, and in comparison to other industries, Flor-i-Log may be characterized as a supply network of functional products with a at most moderate degree of product complexity. The product complexity in the Potted Plants sector relates to product quality sustainability, and the realisation of distribution channel-specific assortments. This suits a competitive priority on cost by high volume production and services.
TYPOLOGY OF NETWORKS
Combining the two bodies of knowledge will result in a theoretical framework in which two dimensions of networks' organization will be related as two axes to present different types of networks. The resulting quadrants define four types of network organization which locus will be reflected in the quadrant names. The proposed dimensions, in combination with various networks typologies add up to the following five network types.
FIGURE 3 Network typology
Extensive
Narrow
Discrete
Embedded
Resource base
Interfirm relationship
3. Quasi integration/
Technocratic/virtual
4.Committee
5.Consensus/Senate
1.Primus
2.Dominated/supply
I
II
IV
III
Type 1: Primus network. The availability of extensive resources with firms within a network provides the possibility to hierarchally access these resources (Albers, 2007). On the basis of rough agreements between seniors on all involved firms, one firm is given substantial autonomy in planning on behalf of all partners involved. The emphasized common vision and aims create trust, shared interests, and joint investments, and self-enforcing safeguards. The shared aim is growth. As a result this requires only a few performance indicators, plus simple incentives and synergy allocation rules. With a high degree of direct supervision, informal communication, and only minor delegation by the seniors, this configuration suits best networking by a small number of ambitious SMEs.
An example relates to Air Berlin, who was given substantial freedom by Air Lauda to plan both the fight networks for both of them. No detailed contract was drafted. Later Air Berlin took a 25% share in Lauda and they invested jointly. The loss in autonomy was compensated by the expectation of a boost in turnover (Albers, 2005).
Type 2: Dominated/ supply network. A second possibility for this combination of the extensive resource base and discrete position of firms, pending the partners selected in this network, is the type of dominated or supply networks. Partners from successive stages of a supply chain may aim at improving chain effectiveness, by concentrating on complementing the core competencesdriven activities of partners along the value chain. Although supply chain links may need to be intensive, communication innovations and cheap transport makes vertical integration of geographically dispersed firms redundant. It has the advantage of enabling (re-)contracting firms that are segments specialists, enabling the orchestrator to realize its ambitions quickly with relatively low (relation-specific) capital needs. Typically, the network splits up between cost oriented jobbers, value added providers, 1 st tier partners, and a core firm, or orchestrator. A means to put the interest of the core firm central is to use of the head-and-tail format of developing and marketing the end product, optimally outsourcing or partnering for everything else, appropriating most of the value added as it has a central position bridging structural holes. Critical item in the vertical supply chain is the dependency-balance between network partners, all trying to gain and exploit unique competitive advantages. The resulting performance contrast between the supply chains of GM and Toyota is informative, as the first one stands for an zero-sum approach where short-term appropriation is focused upon, while the latter emphasizes more the positive-sum of a growth orientation. An alternative for a dominated supply chain is industrial district or cluster, where more or less equal, socially controlled partners leverage their specialist resource base and capabilities.
There are many examples of this configuration, like Microsoft, Ikea, Toyota, and Nike (de Wit & Meyer, 2004, 552). Networks may vary regarding (de-)centralization of decision-making authority, be it horizontally between actors/firms and/or vertically delegation to certain layers in the organization. When the network focus is on a single stage of the supply chain we may refer to chain stores or franchisers, like many (smaller) retailers (Lorenzoni & Baden-Fuller, in: De Wit & Meyer, p.557).
Type 3: Virtual company, quasi-integration or technocratic network. This type of network which is characterized by extensive availability of resources and embeddedness has a broad scope. Under the leadership of a core group of early, often large experienced firms, mutual adjustment dominates the alliance governors board. Operationally, the size and position of the joint unit drives standardization and formalization with an elaborate monitoring system and complex synergy assessment and distribution rules. The firms will integrate or harmonize their systems to exploit the potential benefits, of this network that aims at efficiency (De Man, 2004) and growth (Albers, 2007) Alliance specialists and dedicated staff execute vertically decentralized, operational tasks. Strong competition, constraining regulation, or the need for internationalization may result from this configuration. in a rather stable industry. Firms are bound to stay in the group as a result of the network specific investments.
Clear examples are the airline alliance networks, like Star Alliance, and shipping alliance networks, like the Grand Alliance, or networked cooperative banks. In the airline alliances, dedicated alliance managers run the elaborate joint business unit that coordinates the dispersed activities of the partners. The efficiency increase relates route planning, code sharing, and capacity management. A detailed monitoring system and extensive standardized and formalized practices result in furthering the integration of the firms in the network. The original partners still dominate the developing network.
Type 4: Committee network. The scope of this network is broad in principle, with growth aims and general intentions at the level of senior managers from the participating firms. At the network level this broad scope is effectuated because of innovative initiatives of workers at a decentralized level. The initiatives are organized via focused groups. In this manner a rather low degree of resources with individual firms is combined into new initiatives. A committee of alliance managers take the supportive nourishing and monitoring of the various projects. The committee does not detail any precise decision-making system nor revenue allocation rules. The embeddedness of firms stimulates a common culture, evidently mutual adjustment, low mutual uncertainty, and autonomy are standard practice. The result may be a myriad of collaborations, dependent on interest amongst firms and their employees to collaborate.
An example in case may be an Australian network of 24 computer service firms. They have very flexible relationships with the initiating partner as project leader. The absence of a governing system makes that the emphasis of the networks is on the set of subgroups (Miles & Snow, 1995).
Type 5: Consensus or Senate network. Partners, as in parliaments, delegate operational activities to a contracted, specialized company. The prime aim of partners is efficiency enhancement in a relatively stable and simple environment. As a restricted activity becomes a delegated matter for the partners, who are de facto competitors, no specialists are appointed, and the heads of the involved functional area, evaluate progress regularly. The heads are member of the alliance board, which has to deal only with a narrow scope. The firms know that the potential cost reductions are by definition restricted, which makes then inclined to distrust, decide by time-consuming consensus, fine-tune contracts, reject shared systems, and may employ third parties to enforce agreements. The size of the network will remain limited as mutual adjustment becomes an hindrance in larger networks.
An example is the joint transport purchasing alliance by a group of consumer product producers, like Beiersdorf, Colgate Palmolive and SaraLee, to bundle their part truck shipments to retailers. Logistic operations are delegated to a Logistic Service Provider (Albers, 2007).
The information sharing within Flor-i-Log turns out to be more limited than may be expected in networks with structurally embedded firms. Regarding such interfirm relationships the outsider in the PP-sector observes discrete firms who perceive each other firms primarily as competitors in appropriating a share of the value added. The project tends to realize limited collaboration on the resource bases, primarily on logistics. We conclude that Flor-I-Log suits the consensus-type of network (figure 3, lower-left area). In a consensus-requiring network the focus is on efficiency enhancement, i.e. cost reductions in a relatively simple setting. Such a collaboration will have a narrow scope, e.g. joint transport purchasing. We derive, that future collaboration is best based on a limited scope with focused value-for-money activities for individual (local) firms.
NETWORK GOVERNANCE
Dependent on the need for more radical change vs sharing (tacit) knowledge and system coherence, firms in networks may rely more on weak ties, respectively, on strong ties, and related forms of governance (Granovetter, 1973; Granovetter, 1983). Firms have strong ties when they have enduring, intensive interactions. Firms have weak ties when they differ strongly, have no overlap in activities, and lack shared experiences. When innovation has to be executed by different partners
who remain in tune than strong ties are most useful. Alternatively, when creativity, non-redundancy between partners, and novel combinations are key, even at the cost of mutual understanding, than weak ties will be more rewarding. The preferred forms of governance are related to the preferred ties, for strong ties come with integration, with full acquisition as the strongest form, while weak ties come with disintegrated forms of governance, such as non-equity alliances (Nooteboom, 1999, 523). Some reasons for preferring stronger ties and further integration, binding, are:
* Continuity to recoup specific investments
* Cognitive proximity to stimulate streamlined communication
* To realise incremental, but systemwide innovations
* To prevent opportunism, and knowledge spill-overs to competitors Arguments for preferring weak ties and looser forms of integration, are as follows:
* Incentives for enhancing quality, efficiency and innovation, for survival
* Flexibility in coupling modules in different market-suitable configurations
* Diversity of experience and information yielding exploration new opportunities.
Governance of inter-organizational relationships is directed by relational competencies, which are typically not subject to property rights, i.e. tradable legal ownership. In very general terms, companies may be said to be made up of assets (e..g buildings) positional advantages, and competencies (Nooteboom, 1999, 8-9). Assets are the resources of the firm. The positional advantages refer to efficient access to resources of other organizations, i.e. access to distribution channels, political acceptance, brand loyalty, and reputation. Positional advantages may result from deployed relational personal competencies, directed by organizational competencies, i.e. institutions. Next, institutions comprise of practices, procedures, rules, standards, norms of conduct, goals, roles models and rituals. Relational competencies determine the selection of the mode of governance, firm internally and between firms. The appropriate mix of instruments depends on the relevant goals and conditions. There are four generic classes of governance (Nooteboom, 1999, 8-9, 82):
* Control: legal, bureaucratic, directive
* Value: motivation on the basis of self-interest, partner-value
* Loyalty: trust-based motivation, clan, values/norms, family, friendship.
* Binding: exit barriers, 'hostages', reputation
The instruments of governance related to these four classes have been listed. Value may be steered by the following instruments:
1. Invest in partner's resources, to improve the relationship
2. Lower the partner's value by devaluating his resources or shifting (contracted) volumes to other partners
3. Invest in own relative value for partner, to make him more dependent, enhancing his loyalty
4. Lower one's own value by non-investing
5. Appropriate the resources of (or similar to) a partner lowering the value of the relationship
6. Actively collaborate to gain knowledge spill-overs
Binding may be influenced by changing switching costs between partners:
7. Stop relation-specific investments, lowering own switching costs
8. Change the switching costs of partners vs your own, by demanding more guarantees for continuation of the relationship, claim refunds for your own specific investments, or sell part of your share in specific investments
9. The reverse case of offering more guarantees, or accepting higher share in specific investments.
10. Increase switching costs of partner by demanding a socalled hostage, i.e. things that are valuable only to the 'giver', here the partner
11. Increase your own switching costs by offering a hostage, i.e. things that are valuable only to you
12. Lower switching costs by investing in more flexible technologies or by developing common standards for contracts, techniques, products, etc.
13. Enhance switching costs by investing in reputation of trustworthiness
Opportunism may be influenced via changing the room for or intent towards opportunism:
14. Restrict freedom by tighter legal or other formal control, or increase monitoring, with related sanctions
15. The reverse case is by accepting constraints on one's own freedom
16. One increases one's freedom by reducing constraints or shielding off monitoring
17. One signals heightened risks of opportunism by showing antipathy, lack of interest, or lowering norms
Loyalty may be influenced by more non-business instruments
18. Bonding: invest in relationship, by joint social activities, friendships
19. Emphasize institutional ties, by becoming family-member of partner, accept consequences of social order and clans, stress norms of conduct
20. Invest in reputation of trustworthiness which enhances loyalty of partners
21. Shift from formal to social control
Next to choosing for binding (stronger ties) or more loosening (weaker ties) of partnerships and networks, some instruments indicate a more cooperative vs a more negative, hostile, or opportunistic way or interaction. Thereby one ends up in 4 categories, on preferred instrument of governance vie-a-vie partners (see table 2). The numbers relate to the above stated list of instruments.
TABLE 2 Governance strategies and instruments Source: Based on Nooteboom 1999, pp.129-131.
| Hostile, opportunistic | Tie down 6, 8, 10, 14 |
|---|---|
| Cooperative | Attract 1, 3, 9, 11, 13, 15, 18, 19, 20 |
Table 2 clarifies for instruments with what approach it suits and how it impacts degrees of freedom, ties. We detail some instruments for the boxes, the numbers correspond with the listings above. In the box stated 'Tie down' one binds partners aggressively by increased monitoring, asking for hostages, or more guarantees and reducing his room for conduct. By 'Attract' one binds others by increasing mutual value, reinforcing bonds, and limiting one's room for opportunism. In the box of 'Pass on' the firm increases its own freedom at the cost of others, develop alternative relations,
claims extra guarantees, and compensations, etc. In the box 'Set free' one facilitates switching for all, and open up options for all. Although the box attraction has become more detailed in research, it does not signal which behaviour is more often recognized nor recommended.
Networks may both facilitate access to information, resources and opportunities, and it may help to overcome dilemmas of interfirm cooperation and task coordination (Garliulo & Benassi, 2000). We now turn to the issue not of network coordination but of task coordination. As with all network issues also on the coordination mechanisms there are may alternatives firms can choose from, so we have to simplify by listing them along specific dimensions. Network governance has to balancing arguments and forces for integration with arguments and forces for differentiation. Although a networks consist of autonomous partners who willingly cooperate, there is always the possibility of a misfit in planning and control. As a consequence, contracts will always be incomplete (planning) and cheating, opportunism or abuse of position is often possible (control). As a consequence, ongoing coordination systems in a network will rely on a mixture of coordination mechanisms (Miles & Snow, 1995). Figure 4 lists some of them.
FIGURE 4 Coordination mechanisms in networks
Resource base
Extensive
Narrow
Discrete
Embedded
Interfirm
relationship
Quasi integration/
technocratic
Committee
Consensus/Senate
Primus or
Dominated/supply
I
II
IV
III
Formal lead partner
Working groups/ allianceteams
contract
Group norms
Informal leadership
Linking pin roles
Partner selection criteria
power
reputation
Professional standards
Personal relationships
procedures
consensus
culture
Majority voting
trust
Habits/routines
Next to planning and control issues in network governance, firms must be aware that poorly imposed laws and rules may hinder the progress of a network. First, poor enforcement makes legal governance expensive or even infeasible. Furthermore, when the governance is rather legalistic, enforcement costs may become excessive. Finally, entry barriers will be high in the contrary case of a relational or personal attitude, with a predominance of family, clan, or religious moral order (Nooteboom, 1999, 79).
The Dutch open marketplace and trading system in horticulture is unique in facilitating a system that combines steering mechanisms that are either value-oriented (e.g. motivation by selfinterest), stakeholder binding (e.g. 100% of deals via auction, or out), or relate to loyalty (values/norms, family). Flor-i-Log, expanding across Europe, cannot expect local firms to be attracted by loyalty-based steering-mechanisms, such as social control. The same goes for trading and transportation firms who have their stakes, history and running businesses. In line with preceding sections one may argue that all need incentives, to bridge the gap towards local-for-local trade outside Holland. In conformity to preceding sections, firms should 'tie down' relationships, which acknowledges the prevalence of an opportunistic approach, and the need to make binding contracts (see figure 9). Complementary, also the governance strategy to 'attract' firms may be advised in order to stress a value-for-money orientation.
MANAGEMENT OF CHANGE. HOW TO GET THERE?
Although many authors on business networks has considered networks as given contexts, here cooperation and the related network structure is the object of deliberate design (Lorenzoni, & Lipparini, 1999, in: Moller & Svahn, 2006, p.986). Dependent on the type of a major industry events, one can expect different firms to mobilize resources, orchestrate the transition towards specific business networks.
Network determination and value systems.
On thedimension of level of external determination ,e find three ideal types of alternative networked value systems. The network has a high level of determination when the value-creating activities and related resources are well-known (Moller & Svahn, 2006), and the useful knowledge can be codified, and optimally exploited (See figure 5). Networks that show high levels of determination may be called running or current business networks. They are stable value systems, that best suit defender strategies (Miles & Snow, 1992). In day-to-day contacts, issues of coordination prevail over issues of cooperation. We may derive that the socalled 'current business networks' are similar to the supply dominated /supply network configuration, discussed earlier. The current business networks have multi-tiered actors and clearly defined activities and resources. Regarding coordination of activities, think of lean manufacturing and assembly on demand. Especially modular or decomposable end products may be expected here, with highly specialized partners, requiring codified knowledge and transparent formats. An example is Dell's elaborate network. The orchestrator must willingly accept mutual dependencies. Furthermore, they should combine elements of strong cooperation with delegated self-organization to stimulate variety and specialization. In a current business network the network orchestrator typically has a strong purchasing position or sales position to bind self-interested firms to participate in his network and share knowledge.
The contrary position to current business networks is emerging business network, entailing low levels of (external) determination; radical changes in value creation activities comes with uncertainty about the necessary activities and suitable network partners. One may call them emerging or new business networks, for whole new value systems and related networks are created.
For example, in the 1990s old actors from telecom and electronics had to transform rapidly and link up to newly emerging networks and value chains with its new firms in computers, mobiles, networks, software, new media, etc. Cooperation and corporate diplomacy prevailed over coordination issues. Nowadays new business networks emerge in, e.g., biofuels. No longer is the optimized exploitation of explicit knowledge critical, but the imagination and exploration of new business opportunities, which is typical for a prospector strategy (Miles & Snow, 1992). Problematic for (accelerating) progress of these networks is that ideas are often fuzzy, tacit and dispersed. Furthermore, specialization of actors makes it difficult to develop a systemic perspective encompassing the different evolving technologies
and value activities. As a result, the value to the knowledge is very uncertain, while the potential value activities are ambiguous. When it comes to the (former) orchestrator, he must be able to balance strong and weak ties in the network, i.e. established and unorthodox relationships. He may expose himself to and explore new views, and technologies, but to benefit from it he must have absorptive capacity ((Moller & Svahn, 2006), and be able to transform itself. Moreover, to be able to develop a new business network, the orchestrator must set the agenda, have attractive resources or knowledge, and create an meeting forum to deal with cooperation issues, and create an network identity. This happened when Nokia provided open access to part of its mobile's source code in order to propagate the creation of and stimulate interoperability for 3G mobile services.
In between the extreme types of current business network and emerging new business network, we find the third archetype business renewal network, which prioritizes effectiveness. When networks prioritize effectiveness, taking a balanced position between exploration and exploitation, between new and established value activities, than product modifications or efficiency
enhancing practices may lead to new opportunities (Moller & Svahn, 2006). Due to specialization one has to cooperate strongly as resources and capabilities necessary for renewal are dispersed among various partners. Business renewal networks suits also when a running network requires temporary upheaval to adjust systematically its activities to suit, e.g., a new ICT-platform. Here the critical capability is the bridging of structural holes, connecting different groups or different existing networks. To link different communities or networks one must develop or have the ability to cross professional, sectoral, or geographical sub-cultures. Renewal comes with collaborative learning, explicit goals and timetables. Problematic for collaborative learning are cultural distance, and organizational differences. The externalization of knowledge, i.e. from tacit to explicit, in a peer-topeer setting may help to overcome such barriers (Nonaka & Takeuchi 1995, in Moller & Svahn, 2006, 995-6). The renewal network will benefit from previous partner relationships, alliance experience, relational governance structures, and the sharing of resulting benefits. The orchestrator should balance space, time and resources for exploration with exploitation, i.e. not losing turnover and efficiency.
The impact of major events on network structures.
The initiator and propagator of network changes is expected to be different with structure reinforcing events vs structure-loosening events (Madhavan et al., 1998, 439). A structure reinforcing event may further centralize a network, consolidating the various network positions. An orchestrator, i.e. the more autonomous focal firm, holding a central, bridging position before an industry event, is expected to propagate the adaption to a structure reinforcing event, in order to consolidate its position (Gnyawali & Madhavan, 2001, 435). The consolidation of the steel industry in the 1980s was such a case (Koka et al.. 2006, 727).
With structure-loosening events it is more probably that orchestrators are reactive instead of taking the initiative, because they are tailored to fit not the new but the former market constellation (Gnyawali & Madhavan, 2001). Structure-loosening events are to the advantage of some of the less central firms or new entrants. At least temporarily, the network will be less centralized to adapt to the developments. The new market leader becomes successful because it is focused on the new setting following the market event. However, it is difficult to predict in an early stage which firm becomes the new orchestrator. Structure-loosening events come with increases in uncertainty. Older firms including the orchestrator will have to scrap investments, reposition the firm, invest in new technologies, and develop new relationships, knowledge, and routines. Present orchestrators and other central firms will become less attractive partners, unless they have the motivation, ability and resources to pick and nurture the new winners (Madhavan et al., 1998, 455). In the subcase that also resources are increasing or abundant, existing firms may try to ally with a substantial set of new possibilities. New ties will be created, and many socalled 'network options' may be taken. The network will increase in size and range of ties (Koka et al. 2006, 730). Here, one may think of Cisco acting as venture capitalist to firms working on new technologies. In various industries, however, uncertainty comes with reduced resources. The lack of sufficient resources deepens dependency on critical resources, and for those unable to replace outdated ties by ties with winning partners will end up out of competition. An example, is the radical change in the Swiss watchmaking industry, due to the introduction of flexible production technologies and marketing practices, which brought about the new orchestrator Swatch (Jacobides & Winter, 2005).
Day-to-day-coordination or network orchestration may incrementally impact developmental paths of firms, but here we emphasize the disruption of coordinated activities, i.e. the realization of discontinuous changes, by the cooperative mobilization of resources following industry events. Think of industry events as widely recognized shocks, such as regulatory reform, radical technological innovation, or drastic changes in consumer preferences. Actors with a comparable history, activity, product and level of investment may, following an industry event, realize wholly different competitive advantages (Lundgren, 1992, in: Axelsson & Easton, 1992, p.157). Creating new or changing existing networks changes the interfirm relationships, and thus the positions of individual firms, the balance of powers in networks, and thus the performance of the firms involved.
Mobilisation of actors and resources.
When discussing major external industry events one must distinguish between Network integrative mobilisation and Network changing mobilisation. Mobilisation is 'the process of forming crowds, groups and associations and organizations for the pursuit of collective goals.' (Lundgren, 1992, in: Axelsson & Easton, 1992, p.159) Network integrative mobilisation relates to expanding the network of existing activities, similar to business renewal networks. For example, one may go international by opening an foreign sales office of a joint facility abroad. It is a market investment, when such mobilization of extra resource is done by partners from a current business network. When the group is convinced on the need to act there will be little problem to mobilize the required resources. The partners will focus on the allocation of the extra capacity, less on the investment costs itself. Network integrative mobilisation suits change processes were most of the skills, routines and practices currently in use have to be preserved.
Network changing mobilisation relates to combining previously unrelated (different or similar) activities (Lundgren, 1992, in: Axelsson & Easton, 1992, p.159-161), that may result in the emergence of new business networks. When the degree of perceived change is rather low, the leading firms will have to face resistance from within the existing network, and outsiders may be first to mobilize resources, introduce new technologies, and openly compete for existing market positions. Compared to the preceding case they should anticipate to mobilize a larger share of the required resources internally. An initiator may need to re-orient towards less centrally positioned partners, to mobilize sufficient backing and resources, and realize changes. To conclude, unless timely redirection of resources is realized by the current orchestrator, it is probable that with major structure-loosening events new business networks emerge, with a new orchestrator, successful in network changing mobilization.
Regarding the Potted Plant network, we observe that the enlargement of the EU and various market developments (in production, changing market shares, shifts between country-customer segments) are structure loosening events. Such events increase uncertainty, and weaken power positions, what is to the advantage of ambitious decentralized firms and new entrants. In Europe relative outsiders, e.g. from Italy, have taken the initiative to explore new chain-related opportunities. They go for network changing mobilisation of resources and actors, combining previously unrelated activities. In the Netherlands, however, we see mergers between equals (auctions, traders, transporters) which is typically suited for the contrary case of structure reinforcing events, such as consolidation in the retail-segment. Such events may be in the interest of key players, in the center of networks. Flor-i-Log wants to roll out the Dutch open-marketplace model, but it does not seem to be looking for a new value system, i.e. a radical change of system.
Flor-I-Log partners seem to prefer to expand some of the known services to new countries: The value chains are known, and one is looking for adjustments, expanding the existing system. This network integrative mobilization expands the Dutch marketplace network to encompass foreign firms. To realize this as a group will probably demand maximum efforts of the current consensustype of network without a orchestrator. Only with a strong eagerness to change at group-level will this result in the preferred renewal of the business network.
CONCLUSIONS
We started this paper by detailing the two perspectives of interfirm relationships and access to resources. By combining two dimensions, coming from two radically different perspectives, we made clear that organizing for competitive advantage benefits from relating the level of firm embeddeness to access to resources and to what ends. Indeed, the structuration suggests that competitive advantage is both a matter of relationships and access to resources. The resulting variation in types of networks can account for the different responses to competition. The elements are interfirm relationships, resource bases, network governance instruments, coordination mechanisms, network determination, and resource mobilisation. Thereby, the paper is able to detail 5 generic types of business networks. The paper identifies the basis elements and it facilitates both comparison among empirical examples of companies' competitiveness, and the network design by firms. The paper may become of added value to both network literature and business practices by detailing, both conceptually and by illustrations, the structuring of business networks.
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DH Pay Framework for Very Senior Managers in ArmsLength Bodies (Special Health Authorities and Executive NonDepartmental Public Bodies)
You may re-use the text of this document (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit www.nationalarchives.gov.uk/doc/open-government-licence/
© Crown copyright 2012 First published May 2012 Published to DH website, in electronic PDF format only. www.dh.gov.uk/publications
Prepared by DH Workforce Directorate
© Crown copyright 2012 First published May 2012
Contents
1. Introduction
1.1. The current framework for the pay of very senior managers (VSMs) was subject to an independent review and the report (the Wright Review) published in June 2008. The recommendations of the review were accepted, including the central recommendation that the pay of VSMs should be based on a system of job evaluation. PricewaterhouseCoopers (PwC) were commissioned to develop a system that could be applied to VSMs in the relevant bodies (Strategic Health Authorities, Special Health Authorities, Primary Care Trusts and Ambulance Trusts) but this work was put on hold following the publication of the White Paper "Equity and Excellence: Liberating the NHS" and the Health and Social Care Bill which provides for the abolition of PCTs and SHAs.
1.2. It was subsequently decided that a new pay framework should be developed for VSMs in all ALBs, both Special Health Authorities (SpHAs) and Executive Non-Departmental Public Bodies (ENDPBs), building on the work already completed by PwC.
1.3. This new pay framework has also been developed in the context of the Government's response to:
* reports from the Senior Salaries Review Body (SSRB) on senior pay in the public sector which recommended that a more consistent approach was required for senior pay in ENDPBs and recommended the adoption of a common framework which ranks ENDPBs in order of management challenge and which attaches pay ranges for chief executives to that rank order;
* Will Hutton's report on fair pay in the public sector which recommended that all public service organisations should adopt a Fair Pay Code which sets out principles that should inform the setting of executive pay; supported by greater transparency and more detailed disclosure of senior pay.
1.4. These new arrangements for the pay of VSMs in ALBs have been developed with the help of an executive steering group including ALB representatives and a reference group including non-executive directors or chairs of ALBs, the wider NHS and Managers in Partnership. They have also been approved by the Public Sector Pay Committee.
1.5. The VSM pay framework is subject to amendment in light of the SSRB's report on market facing pay and the Government's response.
2. Principles
2.1. The pay framework is based on the following principles, which are informed by and consistent with the principles set out in the Will Hutton Fair Pay Review:
* executive remuneration should fairly reward each individual's contribution to their organisation's success and should be sufficient to recruit, retain and motivate executives of sufficient calibre. However, organisations should be mindful of the need to avoid paying more than is necessary in order to ensure value for money in the use of public resources;
* executive remuneration must be set through a process that is based on a consistent framework and independent decision-making based on accurate assessments of the weight of roles and individuals' performance in them;
* executive remuneration should be determined through a fair and transparent process via bodies that are independent of the executives whose pay is being set, and who are qualified or experienced in the field of remuneration. No individual should be involved in deciding his or her own pay;
* there should be a coherent approach to senior pay across all ALBs, including all DH SpHAs and ENDPBs;
* there should be appropriate delegated authority to ALB remuneration committees within a clear framework;
* executive remuneration must be based on the principle of equal pay for work of equal value.
3. Scope
Organisations
3.1. These arrangements will apply with effect from [insert date] to all new appointments in:
* special health authorities (SpHAs);
* executive non-departmental public bodies (ENDPBs);
unless separate arrangements have been approved in writing by the DH remuneration committee.
3.2. Any ENDPB or SpHA that wishes to propose alternative pay arrangements for its senior staff may apply to the DH remuneration committee for approval of an alternative framework for the pay of VSMs, provided it is consistent with the principles of this framework in terms of transparency, fairness and value for money. HMT and Public Sector Pay Committee approval may also be required.
Primary Care Trusts, Strategic Health Authorities and Ambulance Trusts
3.3. This framework does not apply to PCTs, SHAs or ambulance trusts. These organisations will continue to apply the previous VSM pay framework until such time as they are abolished or (in the case of ambulance trusts) achieve foundation trust status.
Executive Agencies
3.4. Staff in executive agencies will normally be paid on civil service terms and conditions of service. Exceptionally, executive agencies may be permitted to employ staff on their own terms and conditions, which must be compliant with the Civil Service Management Code. In such circumstances, the DH remuneration committee may choose to use this pay framework for VSMs.
3.5. The DH remuneration committee may also choose to use this pay framework in other circumstances as it sees fit.
Staff
3.6. This framework will be applied (subject to the migration arrangements set out at paragraphs 15.1 – 15.6) to the following staff in each eligible organisation:
* all chief executives;
* all executive directors;
* all senior managers that report directly to the chief executive;
* other VSM posts in large ALBs where the job weight is such that the ALB's remuneration committee decides that AfC or alternative local pay arrangements are not appropriate. For the avoidance of doubt it is not intended that this should include any posts evaluated which would fall below band 9 on AfC or that it should routinely include senior clinical posts. AfC or the local equivalent system of pay should be applied wherever possible.
3.7. The local ALB remuneration committee may decide that these arrangements will not apply to eligible staff for whom the national Consultant Contract for medical or dental staff may be more appropriate. They may also wish to apply alternative arrangements for staff in posts which require GP qualifications (e.g. appointing on the national terms for directors of postgraduate education or GP tutors).
3.8. All other senior managers should be paid in accordance with AfC or equivalent local terms where these exist.
4. The Reward Package
4.1. The reward package for VSMs in DH ALBs comprises:
* basic pay: a spot rate salary within the range for the post determined by job evaluation;
* eligibility for an annual performance bonus;
* recruitment and retention premia where appropriate;
* an additional responsibilities payment where appropriate.
5. The SSRB Evaluation System for ENDPBs
5.1. The Government has accepted the SSRB's recommendation to establish a common framework for determining the pay of ENDPB chief executives. The SSRB framework is based around an evaluation tool which assesses the scale and complexity of ENDPBs in order to place them in one of six bands, for which there are corresponding chief executive salary ranges. This approach, which has been adopted for all the DH's ALBs, both ENDPBs and SpHAs, is designed to improve fairness and consistency in the pay of chief executives across government departments.
5.2. The DH has consulted with the chairs of all ALBs to propose the appropriate banding for their organisation and the pay of their chief executive. The bandings were then reviewed by the DH and will be subject to moderation by the Cabinet Office. The bandings for DH ALBs are detailed at Annex A. These may be reviewed from time to time by the DH remuneration committee, subject to moderation by the Cabinet Office.
6. The Job Evaluation Scheme
6.1. The SSRB evaluation system sets a broad range of pay for the chief executive of each ALB. However, the definition of the spot rate within that range was left primarily for local determination in the light of labour market and other considerations. To ensure consistency, the DH has decided that all these posts should be subject to job evaluation. It has therefore developed a dedicated job evaluation scheme (JES) which is based on the analytical points-based factor scheme known as the Monks JES. The definitions within the factor plan have been adapted specifically for VSM roles within the NHS. The Monks JES assesses each job under seven factors; details of these are provided in Annex B.
6.2. PwC has evaluated all VSM posts in the existing ALBs and developed ranges of job evaluation points and associated salary ranges. These ranges are set out at Annex C.
Job Evaluation of Posts
6.3. It is essential that the evaluations on which VSM pay will be based are expertly undertaken, robust, consistent and subject to processes to ensure their quality is maintained. These criteria can best be met by the JE function being supported by a centralised team of expert assessors. Although these arrangements are subject to change in light of developments in the HR shared services function for ALBs, trained assessors will initially be provided by the NHS Business Services Authority (NHS BSA) on behalf of the DH. All job evaluations carried out under this framework must involve one or more assessors from the NHS BSA.
6.4. A job evaluation should be undertaken whenever there is a new job or a substantial and permanent change to an existing job including where a job reduces in weight such that there is a reasonable expectation that the salary should change.
6.5. A request for a re-evaluation can be made by the post holder, by the chief executive or by the local remuneration committee. However, the decision about whether a job should be evaluated or re-evaluated rests with the local ALB remuneration committee.
6.6. A standard format should be used for providing a job description and any other relevant job information. An exemplar proforma to support this is attached at Annex D.
6.7. The job evaluation should be carried out by a job evaluation panel comprising two trained assessors and two members of the remuneration committee of the ALB requesting the evaluation. The job evaluation panel should not include any individual
whose remuneration falls within the scope of this framework and is employed by the ALB in question.
6.8. The initial assessment should be carried out by the trained assessors and discussed and agreed with the other members of the panel. Where agreement cannot be reached, the panel may be re-constituted with different assessors. Where, exceptionally, agreement still cannot be reached, the matter should be referred to the DH remuneration committee whose decision will be final. The job evaluation panel should provide clear written reasons for each aspect of the evaluation. Job holders should receive a copy of the evaluation outcome.
6.9. Where the post being evaluated is that of a chief executive, executive director or other board level director reporting directly to the chief executive, the outcome of the job evaluation and proposed remuneration must be referred to the DH remuneration committee for approval (see paragraph 14.1).
Appeals
6.10. The job holder should have the right of appeal where s/he believes the facts presented to the panel were incomplete or incorrect or that they have not been properly understood and assessed under the JES. The appeal should be heard by an appeals panel whose decision will be final.
6.11. The ALB remuneration committee should establish the appeals panel which should include a different trained assessor and two different ALB remuneration committee members from those involved in the original evaluation. To ensure impartiality, one of the appeals panel members should where possible be a trained assessor from a different ALB.
Quality Assurance
6.12. Ultimate responsibility for the ALB VSM pay framework, including the JES, lies with the DH remuneration committee. The DH remuneration committee, taking advice as necessary from the BSA, PwC and others, will ensure that the JES remains fit for purpose, considering any concerns with the JES raised by ALB remuneration committees and agreeing modifications in the design of the scheme or its interpretation.
Flow Chart
6.13. The flow chart at Annex E provides an overview of the JE process, setting out the key stages from the decision to evaluate a post to the completion of the process.
Job Evaluation Handbook
6.14. A complete guide to the JES is contained in the Job Evaluation Handbook which is available at
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGu idance/DH_134428
Job Evaluation Contact
6.15. All requests for evaluations should be made via the DH ALB Support Unit at::
* Francesca Della Pietra
Department of Health
Quarry House
Room 3E48
Quarry Hill
LS2 7UE
Leeds
* E-mail:
firstname.lastname@example.org
* Tel:
0113 254 6875
* GTN
7513 46875
7. Deciding the Spot Rate
7.1. The JE process will identify the appropriate pay range for the job. The ALB, on the advice of its remuneration committee, must then decide the appropriate spot rate within the range, taking into account the prevailing economic climate, local market conditions and the requirement to obtain the best possible value for money. See also paragraph 10 "Development Pay".
8. Recruitment and Retention Premia
8.1. Posts should normally be advertised at the rate appropriate for the job weight as determined in accordance with paragraph 7.1 and Annex C. In exceptional circumstances the ALB remuneration committee may decide to seek approval from the DH ALB Remuneration Committee for an additional Recruitment and Retention Premium (RRP). These circumstances might include:
* where recruitment is required from a specialist field outside ALBs, the NHS or DH and the local remuneration committee is convinced that, on an evidence basis, market pressures would otherwise prevent the employer from being able to recruit and retain staff for a particular post at the normal salary;
* where the market has been tested by a failed recruitment exercise.
8.2. Where it is anticipated that the need to make the additional payment will disappear within 12 months, a short-term RRP should be used. Short-term RRP payments should be reviewed regularly at least once every 6 months. Short-term RRPs are not pensionable and do not count as part of basic pay for any other payments (e.g. do not count as part of the calculation for performance pay).
8.3. A long-term RRP may be applied only where there are deep-rooted market conditions that prevent appointment at the normal salary for the post. Such payments should be reviewed regularly, at least annually. These payments are pensionable and will also count for other payments linked to basic pay (e.g. performance bonus payments). Where a review results in a decision to withdraw the RRP, a reasonable period of pay protection in accordance with the ALB's pay protection policy should be applied.
8.4. RRP payments should be set as low as possible to secure the necessary skills and experience required in each post. Where the ALB remuneration committee believes that an RRP is required, they must seek prior approval from the DH ALB Remuneration Committee with a clear business case. HMT have delegated authority to the Secretary of State to approve RRP at a maximum of 10% of basic pay (exceptionally more where total pay is less than £142,500). The ALB remuneration committee must also seek prior DH approval for any post which attracts a salary in excess of £142,500, prior to the post being advertised. Chief Secretary to the Treasury (CST) approval may also be required.
8.5. Individuals are not entitled to retain their RRP on moving to another post. Moreover, it may not necessarily be paid to the next incoming post holder.
9. Payment for Additional Responsibilities
9.1. ALBs may provide additional payments where individuals temporarily take on significant responsibilities outside their core role. Payment should not be made where the period of additional responsibility lasts less than 3 months or in excess of 12 months. Where the period of additional responsibility lasts for more than 12 months, the post should be subject to formal re-evaluation under the JES. Where an additional responsibility payment is made, the maximum amount payable should be 10% of basic pay and the payment should be pensionable.
10. Development Pay
10.1. In some cases, an individual may be appointed to develop into a role and it may be appropriate to pay them slightly less than the full rate for the job while they are developing into the role and are not required to fulfil all of the responsibilities of the post. In these circumstances, the ALB remuneration committee may recommend paying a VSM at the lowest point of the range for the post, for a defined period not exceeding 2 years.
10.2. It should be noted that this flexibility should be applied only in these defined circumstances and for a defined period. It is different therefore from the flexibility available under paragraph 7 which is based on market conditions.
10.3. Where used, this flexibility would normally apply to someone taking up a VSM post for the first time on promotion. It is not intended, however, that it should be the case for all such appointments.
10.4. Where a local ALB remuneration committee proposes using this flexibility, this should include an assessment of the development need and how the organisation will support the VSM to undertake that development in the role. There should be a set period, agreed with the VSM with an assessment at the end point with the intention of moving the VSM onto the full basic rate for the post should the assessment support that.
11. Annual Uplifts and Performance Bonus Scheme
11.1. All VSMs will be eligible for consideration for an annual uplift in salary as determined from year-to-year by the Government. VSMs in post for at least 3 months will also be eligible for consideration of a performance- related bonus.
11.2. Those who have been in post for over 6 months will be eligible for consideration of a full year performance-related bonus. Those who have been in post for 3 to 6 months are eligible to be considered for 50% of the recommended performance-related bonus. Both annual uplift and bonus payments are dependent upon performance as set out below.
11.3. The pay awards for the year will be based on placing the individual into one of 3 categories:
11.4. An individual's eligibility for consideration for an annual uplift or bonus will be determined by the performance category into which they are placed.
11.5. The DH remuneration committee will delegate responsibility for the determination of annual performance-related bonuses to the ALB's own remuneration committee each year, subject to limits which will be set by the DH remuneration committee annually. These will include:
* a cap on the maximum that may be paid to any individual expressed as a percentage of their base pay;
* a cap on the total value of performance related pay awards across the organisation expressed as a percentage of the base pay of all eligible staff;
| | Category | Award |
|---|---|---|
| A | | |
| B | | |
* a cap (if still required) on the maximum percentage of eligible staff that may receive PRP bonuses.
11.6. Provided that these limits are not breached, the DH remuneration committee will not prescribe the rates of bonuses that are awarded to individual staff. This will be a matter for individual ALB remuneration committees and they may choose to award different rates of bonus to different VSMs depending upon their performance. The DH will however require the ALB to provide it with an annual summary of the total remuneration for all VSM staff including sufficient detail to demonstrate that none of the current limits has been breached. This should include evidence that there is no unjustifiable disproportionate impact due to gender, race or age.
Process for Determining the Value of Annual Uplifts and Bonuses
11.7. The Senior Salaries Review Body (SSRB) has been asked to make recommendations to Government annually on the level of increase to basic pay and the value of the performance pay pot. The DH remuneration committee will write to each ALB annually to advise them of the agreed uplift. There will however be no uplifts during 2011/12 and 2012/13 because of the Government's 2-year pay freeze on public sector pay.
12. Expenses
12.1. Any expenses paid to VSMs (e.g. for accommodation, travel or subsistence) should be based on clear, published principles and be consistent with the policy for other staff within the same organisation.
13. The Role of Remuneration Committees
13.1. The role and responsibilities of remuneration committees in ALBs in relation to the VSM pay framework are set out in "Guidance for Remuneration Committees" at:
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset /dh_105254.pdf
This guidance should be followed (except as amended or superseded by this framework) in all ALBs.
13.2. In particular, the role of remuneration committees should include:
* ensuring pay policy is administered in accordance with the framework and other relevant guidance;
* seeking prior approval from the DH Remuneration Committee for the salaries of the chief executives and all executive directors;
* seeking prior approval (where appropriate) from the Chief Secretary to the Treasury, through the DH Remuneration Committee, for any appointment, reappointment or change of contract for any member of staff whose salary is reasonably expected to exceed £142,500 per annum. The Cabinet Office guidance on this requirement is at http://www.civilservice.gov.uk/wpcontent/uploads/2011/09/CO_guidance_pay_tcm6-36460.pdf
* seeking prior approval from the DH Remuneration Committee for any proposal to award RRP;
* agreeing awards of additional responsibilities payments;
* providing the DH Remuneration Committee with details of VSM payments as required, including an annual summary of all payments analysed by individual and type of payment (e.g. base pay, bonuses, RRP, additional responsibilities payments);
* ensuring that the pay for individual posts is based on the rates set out in Annex C;
* agreeing the process for linking objectives to pay. Monitoring and evaluating the performance of VSMs and agreeing the PRP recommendations for all VSMs within the ALB;
* ensuring the PRP budget is not exceeded and that the other limits on PRP are observed;
* arranging the job evaluation of any new or significantly changed VSM roles, including roles where the responsibilities have reduced to such an extent that pay should be reviewed and perhaps reduced;
* ensuring compliance with Government policy on transparency, disclosure and fairness in the administration of senior pay;
* ensuring compliance with equality legislation.
14. DH Remuneration Committee
14.1. Under this framework, the governance role formerly undertaken by the Pay and Performance Oversight Committee (PaPOC) as "grandparent" organisation for ALBs will transfer to a new, stronger DH remuneration committee. The DH Remuneration Committee will respect the delegated authority of the remuneration committees in ALBs and operate within defined limits. The responsibilities of the DH Remuneration Committee will include:
* considering ALB proposals for the allocation of each ALB to one of the SSRB's 6 organisational bandings and making recommendations to the Cabinet Office for moderation across Government;
* maintenance of the VSM pay framework, including publication of annual pay scales and limits on PRP;
* considering requests for approval from ALB remuneration committees as set out at paragraph 13.2;
* considering any requests from ALBs to operate an alternative pay framework for VSM or other staff and referring them to the PSPC for approval where appropriate;
* providing advice on the interpretation of this framework; moderating any disputes that may arise and ensuring correct process has been followed in the operation of the framework.
15. Migration
15.1. All new appointments to chief executive and other VSM posts in DH ALBs should be made under the terms of this framework.
15.2. Staff who were in post before that date may continue to be employed on pre-existing VSM or local terms until they change contract or leave the organisation.
15.3. It is therefore possible that for some time, an ALB will be employing VSMs on different pay frameworks. HM Treasury has made it clear that there is no automatic requirement to harmonise pay in these circumstances. However, in some circumstances there may be a risk of challenge under equal pay legislation.
15.4. Following the introduction of this framework and any new appointment made under it, each ALB may therefore consider undertaking an equal pay risk assessment to identify and put right any material gender-based or age-related inequalities within the organisation. It is recommended that ALBs take their own independent legal advice if the equal pay audit reveals any gender or age-based inequalities.
15.5. ALBs should also consider, where differences of pay may be difficult to justify, phasing in new rates of pay over a fair and defensible period of time. ALBs should take their own independent legal advice regarding alternatives to harmonisation.
15.6. Staff in existing ALBs should not be moved on to the new framework in circumstances other than provided for above.
16. Model Contract
16.1 A model contract incorporating the Code of Conduct for VSMs is recommended for use by ALBs. It is available from: email@example.com .
17. Pay Protection during SystemWide Reform
17.1. Some staff including those who are transferred to ALBs or offered Suitable Alternative Employment in ALBs as part of the current NHS reforms may be entitled to pay protection in accordance with the relevant HR framework or their personal terms and conditions of employment. Where pay protection is permitted, care should be taken to ensure it is correctly applied and that the individual is made aware in writing when it will expire. Broad details of the normal arrangements for pay protection are detailed at Annex F. Detailed information on the transfer arrangements for staff moving to the new ALBs will be developed for each body.
18. Contact
18.1. For all enquiries to the DH remuneration committee, please contact:
* Greg Gleeson
Direct line: 020 7972 3781
Mobile: 07396 23781
Email:
firstname.lastname@example.org
Annex A: SSRB Bands
| | Organisation | | SSRB | | Floor | | Ceiling |
|---|---|---|---|---|---|---|---|
| | | | Band | | £ | | £ |
| New ALBs | | | | | | | |
| NHS Commissioning Board | | F | | 175,000 | | 225,000 | |
| Health Education England | | E | | 150,000 | | 200,000 | |
| NHS Trust Development Authority | | E | | 150,000 | | 200,000 | |
| Health Research Authority | | C | | 100,000 | | 150,000 | |
| Current ALBs | | | | | | | |
| Care Quality Commission | | F | | 175,000 | | 225,000 | |
| Monitor | | F | | 175,000 | | 225,000 | |
| NHS Blood and Transplant Authority | | E | | 150,000 | | 200,000 | |
| National Institute for Health and Clinical Excellence | | E | | 150,000 | | 200,000 | |
| NHS Litigation Authority | | E | | 150,000 | | 200,000 | |
| NHS Business Services Authority | | E | | 150,000 | | 200,000 | |
| NHS Health and Social Care Information Centre | | D | | 125,000 | | 175,000 | |
| ALBs to be abolished or leave sector (* subject to consultation) | | | | | | | |
| NHS Institute for Innovation and Improvement | | E | | 150,000 | | 200,000 | |
| Health Protection Agency | | E | | 150,000 | | 200,000 | |
| Human Fertilisation and Embryology Authority * | | D | | 125,000 | | 175,000 | |
| National Patient Safety Agency | | C | | 100,000 | | 150,000 | |
| Appointments Commission | | C | | 100,000 | | 150,000 | |
| Council for Regulatory Healthcare Excellence | | C | | 100,000 | | 150,000 | |
| General Social Care Council | | C | | 100,000 | | 150,000 | |
| National Treatment Agency | | C | | 100,000 | | 150,000 | |
Annex B: The Monks (JES) as adapted for NHS Senior Manager roles
| | Factor | Description |
|---|---|---|
| Factor 1 – Knowledge | | |
| Factor 2 - Specialist Skills | | |
Factor
Description
| | Factor | Description |
|---|---|---|
| Factor 6 - Innovation / Creative Thinking | | |
| Factor 7 - Physical Environment / Emotional Demands | | |
Annex C: Pay ranges
| | Monks JE Points | | | Pay Point | Benchmark |
|---|---|---|---|---|---|
| From | | To | | | Salary |
| | | | | | £ |
| 700 | | 714 | 1 | | |
| 715 | | 729 | 2 | | |
| 730 | | 744 | 3 | | |
| 745 | | 759 | 4 | | |
| 760 | | 774 | 5 | | |
| 775 | | 789 | 6 | | |
| 790 | | 804 | 7 | | |
| 805 | | 819 | 8 | | |
| 820 | | 834 | 9 | | |
| 835 | | 849 | 10 | | |
| 850 | | 864 | 11 | | |
| 865 | | 879 | 12 | | |
| 880 | | 894 | 13 | | |
| 895 | | 909 | 14 | | |
| 910 | | 924 | 15 | | |
| 925 | | 939 | 16 | | |
| 940 | | 954 | 17 | | |
| 955 | | 969 | 18 | | |
| 970 | | 984 | 19 | | |
| 985 | | 999 | 20 | | |
| 1,000 | | 1,014 | 21 | | |
| 1,015 | | 1,029 | 22 | | |
| 1,030 | | 1,044 | 23 | | |
| 1,045 | | 1,059 | 24 | | |
| 1,060 | | 1,074 | 25 | | |
| 1,075 | | 1,089 | 26 | | |
| 1,090 | | 1,104 | 27 | | |
| 1,105 | | 1,119 | 28 | | |
| 1,120 | | 1,134 | 29 | | |
| | Monks JE Points | | | Pay Point | Benchmark |
|---|---|---|---|---|---|
| From | | To | | | Salary |
| | | | | | £ |
| 1,150 | | 1,164 | 31 | | |
| 1,165 | | 1,179 | 32 | | |
| 1,180 | | 1,194 | 33 | | |
| 1,195 | | 1,209 | 34 | | |
| 1,210 | | 1,224 | 35 | | |
| 1,225 | | 1,239 | 36 | | |
| 1,240 | | 1,254 | 37 | | |
| 1,255 | | 1,269 | 38 | | |
| 1,270 | | 1,284 | 39 | | |
| 1,285 | | 1,299 | 40 | | |
Annex D: Standard Job Description Proforma
Role profile:
Job Title:
Department:
Reports to:
Direct reports:
Job Purpose:
Date:
Grade:
Key responsibilities
Key accountabilities
Skills/Competencies required – these should be identified individually for each post. For guidance on what should be considered in each area, please see annex B.
Knowledge:
Specialist Skills:
People Skills:
External Impact:
Decision Making:
Creative Thinking / Innovation:
Emotional Demands:
Prepared by:…………………..…………
Date:…………….…...
Approved by:……………………………….
Annex E: Job Evaluation Process Flow Chart
Is the job a
VSM post?
Yes
Has Local
RemCom
agreed to
evaluate job?
Yes
Nominate
evaluation Panel,
including a
trained evaluator
Complete Job
Description for
the role
Trained evaluator
carries out
evaluation for
approval by the
Panel
Panel agrees job
evaluation
Job evaluation
and salary
approved by
Local RemCom
Notify post holder
of job evaluation
outcome
Does post
holder
believe have
grounds to
appeal?
Post holder
documents
grounds for the
appeal
Nominate
Appeals Panel,
including another
trained evaluator
Appeal
considered and
decided by the
Appeals Panel
Notify post holder
and Local
RemCom of
appeal finding
Is DH
RemCom
approval
required?
Yes
No
Yes
Salary approved
by the DH
RemCom
Does salary
require CST
approval?
Salary approved
by CST
Yes
Job evaluation
process
completed
No
No
Annex F: Staff Transfer and Pay Protection Arrangements
Staff transferring to current or new ALBs will do so in accordance with the following principles:
* staff who transfer with their function under TUPE will have an absolute right to protection of all contractual rights at the point of transfer and continuing unless and until there is a valid amendment of contract that is not causally linked to the TUPE transfer;
* where TUPE does not apply in a transfer situation, the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector (COSOP) may apply which means that the principles of TUPE may be followed;
* staff who accept a post as suitable alternative employment will move to the new pay framework and may have their pay protected for a limited period. The period of pay protection will be determined individually for each case taking account of the circumstances, including the individual contract of employment and any relevant local policies;
* where TUPE and COSOP do not apply, VSMs will be appointed to the new ALBs on the terms of this framework.
|
Ref. No. 45586 Date: 10 December 2015
NATIONAL PREVENTIVE MECHANISM
2014 Report
Dear reader,
This is the third annual report on the activities of the Protector of Citizens performed in the capacity of the National Preventive Mechanism in the Republic of Serbia.
Prevention of torture derives from the duties of the Republic of Serbia towards its citizens and from the international convention accessed by Serbia.
In 2014, 79 visits were made to places of detention and 345 recommendations were issued to the competent authorities based on the identified irregularities in their work.
By presenting the findings and general and specific recommendations for improvement of the situation, the Report offers a clear and accessible route towards a torture-free society as the ultimate ideal we should strive to attain. However, the Report makes it clear that practical steps towards this unattainable ideal are not themselves shrouded in mystery, n or are they unattainable; indeed, most of them are not even too onerous or costly.
All we need to do is to take these steps as quickly as possible, without excuses and exceptions, for the sake of victims of torture and for the sake of our own dignity. If even one human being is exposed to inhuman treatment, the dignity of each and every one of us is threatened.
I would like to express my gratitude to all authorities, citizens' associations and individuals I cooperated with during the reporting period in the capacity of the National Preventive Mechanism.
Saša Janković,
Protector of Citizens
Table of Contents
1. Introduction
1.1. General evaluation of compliance with prohibition of torture and other cruel, inhuman or degrading treatment and punishment in the Republic of Serbia
1.2. Key information on activities of the Protector of Citizens in the capacity of the National Preventive Mechanism (NPM) in 2013
2. Prohibition of Torture
2.1. National legislation
2.2. International instruments
3. Optional Protocol to the Convention against Torture
3.1. Subcommittee on Prevention of Torture
3.2. National Preventive Mechanisms
3.3 Setting up of NPM in Serbia
4. Methodology, Resources and Organisation of NPM in 2014
4.1. Methodology of NPM
4.2. Material resources and financial independence of NPM
4.3. Special NPM unit and its functional independence
4.4. Participation of Provincial Ombudsman in NPM activities
4.5. Participation of the Civil Sector in NPM activities
4.6. Participation of External Experts in NPM activities
4.7. Training of NPM members
4.8. Other forms of cooperation
5. Exercise of NPM's Mandate in 2014
5.1. Visits to places of detention
5.2. Cooperation between public authorities and NPM during visits
5.3. Reports of visits to places of detention
5.4. Recommendations for remedying the identified shortcomings
5.5. Establishing dialogue with government authorities
5.6. Review of NPM's Report for 2013 by the National Assembly
5.7. Events and promotion of NPM/Prevention of Torture
5.8. Cooperation with the Subcommittee on Prevention of Torture
5.9. Cooperation with other NPMs and establishment of NPM Regional Network
5.10. Distribution of NPM's Annual Report
6. Background and NPM's Activities by Specific Areas in 2014
6.1. Police custody
6.2. Enforcement of pre-trial detention
6.3. Enforcement of penal sanctions
6.4. Detention of persons with mental disorders to psychiatric hospitals
6.5. Detention of persons to social welfare homes
6.6. Treatment of refugee/migrants
6.7. Reception of repatriated persons in the readmission process
ANNEX I – Recommendations given by the NPM to Government Authorities of the Republic of Serbia
ANNEX II – Conclusions of the National Assembly of the Republic of Serbia
1. Introduction
1.1. General evaluation of compliance with prohibition of torture and other cruel, inhuman or degrading treatment and punishment in the Republic of Serbia 1
The Constitution of the Republic of Serbia guarantees human dignity and inviolability of physical and mental integrity and explicitly prohibits torture, inhuman or degrading treatment or punishment. The Republic of Serbia ratified the main international and regional conventions in the field of protection of human rights, including the UN Convention against Torture and the Optional Protocol to the Convention. Under the Law amending the Law on Ratification of the Optional Protocol enacted in 2011, the Protector of Citizens has been designated as the National Preventive Mechanism (NPM) which acts in cooperation with Ombudsmen of autonomous provinces and associations pursuing the goals of promoting and protecting human rights and freedoms. In 2012, the Protector of Citizens assumed the duties of the NPM in accordance with the Optional Protocol. In the past three years, the Protector of Citizens has performed numerous activities which largely contributed to the prevention of torture and abuse in the Republic of Serbia.
Acting in the capacity of the NPM, the Protector of Citizens has persistently faced a lack of awareness of the general public that every citizen is entitled to fundamental human rights, including those arrested, detained, incarcerated or put under surveillance, those placed in psychiatric hospitals or residential social security institutions, those who stay at centres for foreigners or any other person deprived of liberty in any manner by a decision of a public authority. Commitment to prohibition of abuse and torture and to respect of other international standards in the field of protection of human rights was in Serbia for a long time perceived as something imposed from outside, as acceptance of foreign rules that have no footing in these parts of the world. The theories put forth that claimed the local culture of human rights had its specific aspects and that local tradition should be taken into account resulted in views that penal policy should be made more stringent, while some have even gone so far as to justify abuse. We have also periodically witnessed renewed populistic cries for the re-introduction of the death penalty and repeated motions to introduce chemical castration.
What is encouraging is that the prevailing opinion of the public authorities responsible for the treatment of persons deprived of liberty appears to be that abuse and torture must be eliminated; it is also encouraging that the required level of cooperation with the Protector of Citizens acting in the capacity of NPM has been achieved and that most of the 1,000-strong recommendations issued have been complied with, which has brought about to a significant change in the public perception of prohibition of torture, with many instances of improved treatment of persons deprived of liberty.
On 23 October 2014, the National Assembly of the Republic of Serbia passed conclusions based on a review of the Report on Activities of NPM for 2013, which stated that in his report on the activities of NPM, the Protector of Citizens comprehensively assessed the situation and the quality of exercise of the rights of persons deprived of liberty, highlighting the necessary improvements of the situation and prevention of torture and other forms of abuse. In addition, the National Assembly ordered the competent authorities to implement these recommendations without delay and to notify the National Assembly thereof in writing by 31 December 2014 at the latest, but the competent authorities failed to do so.
1
For more information, see Chapter 6 of this Report.
A conclusion that can be drawn after years of monitoring the treatment of persons deprived of liberty is that torture does not exist in Serbia as a measure organised and supported by public authorities. However, during numerous visits to institutions where persons deprived of liberty are or can be placed, numerous instances of unlawful or inappropriate treatment of such persons were identified. If they are persistent, such shortcomings can constitute inhuman or degrading treatment or even torture. This is largely a result of shortcomings in the system, which is designed in a way that does not effectively prevent such instances, coupled with the lack of a mechanism that would detect such instances and provide for effective investigation, and the lack of a system for detection of such cases, carrying out of effective investigations, identification of persons responsible for the omissions, prosecution of perpetrators and proper recourse to persons whose rights were violated.
An illustrative example of this is a case of torture identified in early 2012 in a recommendation by the Protector of Citizens 2 , which was confirmed in mid-2013 by a judgement of the Constitutional Court. 3 The prison administration has still not found the direct perpetrators and the responsible officers who should have taken take necessary measures to prevent or to timely identify and investigate the mistreatment, but failed to do so. What is worrying is that the prosecutors' office has suspended the investigation and that no judicial proceedings have been initiated, which resulted in a failure to apportion criminal liability in the case where two public authorities previously found that a person deprived of liberty was subjected to torture, inhuman or degrading treatment or punishment. It is obvious that the competent public authorities should step up their fight against impunity for torture. In this context, in addition to prosecutor's offices and courts, internal control mechanisms of public authorities should have an important role in terms of increasing their efficiency.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states that "With regard to the assessment of the Protector of Citizens that the competent public authorities fail to comply with their duties in the fight against impunity for torture, that they do not always conduct timely and detailed procedures to determine whether the rights of persons deprived of liberty were violated, that individual responsibility for violation of these rights and responsibility for omissions in the work and organisation of work was apportioned to responsible persons only in few cases, as well as that few persons responsible for violation of these rights were punished, and particularly having in mind that the Protector of Citizens and the Constitutional Court identified certain cases of abuse, the National Assembly orders the competent public authorities to fully comply with their duties in the fight against impunity for torture, to take all necessary measures and activities to prevent abuse and, in accordance with the law, to conduct timely and detailed procedures to investigate all substantiated allegations of abuse and apportion subjective and objective responsibility and to punish those responsible."
With the aim of ensuring efficient fight against impunity for torture, in addition to prosecutor's offices and courts, internal control mechanisms of public authorities should have an important role in terms of increasing their efficiency.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With the aim of ensuring more efficient and comprehensive control over the work of the Administration for the Enforcement of Penal Sanctions, the National Assembly advises the Ministry of Justice to consider the recommendations of the Protector of Citizens on activities that should be undertaken to separate the supervision unit from the Administration for the Enforcement of Penal Sanctions, so that the work of institutions and the Administration is overseen by the supervision unit as a separate organisational unit of the Ministry of Justice, and also to propose appropriate amendments to laws and other regulations in that regard."
2 Case No. 12-3630/12.
3
Decision of the Constitutional Court of the Republic of Serbia No. Už-4100/2011.
It is necessary to develop a system of continual training on human rights for judges, prosecutors, decision-makers and all officers directly treating persons deprived of liberty in the Republic of Serbia, particularly trainings on prohibition of torture and other forms of abuse.
The conditions for police detention in certain police stations have been improved, but there is still a large number of inadequately equipped custody cells in certain police stations, i.e. They are not compliant with the applicable standards. The police interrogate suspects in rooms which do not have audio and video surveillance equipment.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states: "With regard to the assessment of the Protector of Citizens that many existing custody cells in police stations are not compliant with the minimum standards of the European Committee for the Prevention of Torture regarding necessary accommodation conditions, the National Assembly orders the Government to allocate necessary funds for construction or refurbishment of custody cells in police stations in accordance with the applicable standards in budget proposal for 2015."
In spite of recommendations by NPM, the applicable Instructions on Treatment of Persons brought in by Police and Persons in Custody of the Ministry of Internal Affairs has not been improved and in accordance with its provisions, which are not compliant with the applicable standards, police officers are mainly present during medical check-ups of detained persons; the installed video surveillance systems invades the privacy of detained persons in a large number of cases (toilets are also under video surveillance); police officers mainly put handcuffs on detained persons during transport.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With regard to the assessment of the Protector of Citizens that the Instructions on Treatment of Persons brought in by Police and Persons in Custody are not compliant with the applicable regulations and standards and decisions of the European Court of Human Rights (use of physical restraint, presence of non-medical staff during physical examinations, lack of duty to install alarms, authorisations of control mechanisms etc.), which results in dilemmas for police officers regarding exercise of police authorities and divergent practices in their actions, the National Assembly orders the Ministry of Internal Affairs to make the Instructions on Treatment of Persons brought in by Police and Persons in Custody compliant with the applicable regulations, standards and decisions of the European Court of Human Rights."
There is still an impression that detention is often too readily ordered, that its duration is excessive and that courts rarely order measures such as bail bonds, which provide an effective alternative to detention. The circumstances surrounding the enforcement of detention measures, the violation of the presumption of innocence of detainees and the conditions in which such measures are enforced constitute a sort of punishment before sentencing.
During the reporting period, the situation improved significantly with regard to overpopulation of detention units. Most detainees have the space of minimum eight cubic meters and four square meters at their disposal in dormitories. Although many detention facilities have recently seen adaptation and refurbishment, some rooms in detention units are dilapidated, worn-down and unclean. Rooms are not sufficiently aired, which makes the position of non-smokers particularly difficult because they are placed in the same rooms with smokers. In certain rooms natural light is insufficient, while artificial lighting is poor.
The problem in the system for enforcement of detention measures in Serbia is that detainees mainly spend the whole day indoors, locked up in their cells/dormitories. Detainees are as a rule not allowed to spend spare time during the day outside of their cells, in communal areas with other detainees, unless they have been segregated from them under court orders. An encouraging sign is that plans are afoot to create day rooms where detainees will spend a certain part of the day together.
In most cases, detainees are not allowed to work or to participate in social and cultural activities. In addition, provisions have not been made to ensure their physical activity, especially in bad weather. With the exception of the District Prison in Belgrade, detainees are not allowed to receive visits by spouse, children and other close persons in separate rooms.
In Conclusions 72. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With regard to the findings of the Protector of Citizens that as a rule detainees do not have an opportunity to spend free time during the day outside their cells in communal rooms with other detainees in cases where no court-ordered contact restrictions apply; that in most cases they do not have an opportunity to do productive work, n or are they included in social and cultural activities; that detainees are not grouped together according to the type of criminal offence of which they are indicted, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve treatment of detainees, i.e. to allow them to exercise all their rights in accordance with the applicable regulations and standards".
Detained women are still placed in prison detention units across Serbia. Due to the relatively small number of women per detention unit, some of them are de facto placed in solitary confinement while in detention, often for extended periods. Although in the penal enforcement system isolation/solitary confinement is a special/disciplinary measure of a strictly limited duration, it currently seems to be the norm for some female detainees, which speaks volumes of the inadequacies of the detention system for women.
In Conclusions 72. of the National Assembly of the Republic of Serbia of 23 October 2014 states: "With regard to the assessment of the Protector of Citizens that women in detention are mostly and commonly isolated for long periods because their number in detention units tend to be low, whereas this is meant to be a disciplinary or a special measure of strictly limited duration for men in the penal enforcement system, the National Assembly orders the competent authorities to exercise increased caution with the aim of reducing isolation of female detainees for a long periods during detention".
Large penal and correctional institutions are still overpopulated, three-level bunk beds are still used and in certain institutions there are cases of persons serving prison sentences who sleep on the floor. Efforts have been observed to increase the use of alternative sanctions in order to reduce the burden on the prison capacities.
Many facilities 4 do not adhere to the principle of communal incarceration. Namely, convicts are not allowed to spend their spare time during the day in communal areas with other convicts; instead, they are isolated in their cells all the time (alone or in small groups). The situation is similar with convicts under increased supervision, because instead of exercising increased supervision of the convicts, this measure mainly includes their isolation.
In Conclusions 72. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With regard to the findings of the Protector of Citizens that many convicts in closed units do not have an option to spend free time during the day in communal rooms with other convicts, including in particular persons under increased supervision, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of
4 The special unit of the Penal and Correctional Institution in Požarevac for organised crime sentences, the newly-built Penal and Correctional Institution Belgrade in Padinska Skela, VII pavilion of the Penal and Correctional Institution in Požarevac, II pavilion of the Penal and Correctional Institution in Niš and also numerous district prisons.
Justice to enable all convicts, except those in solitary confinement or isolation, to spend free time during the day in communal rooms with other convicts".
Activities of corrections officers with convicts remain sporadic. A certain number of convicts were involved in the refurbishment of prison facilities, which resulted in significant improvements in the conditions of their placement. However, many convicts still do not have a possibility to do productive work. It is necessary to increase the volume of culture-related activities. The procedure of classification of convicts is still not transparent enough. The criteria for advancement are insufficiently explained to convicts, while corrections officers mainly administrate questionnaires. Lack of flexibility of the advancement criteria in correctional work makes progress of convicts to more favourable correctional groups more difficult, so many convicts are still released from prisons from the same correctional groups where they were classified immediately upon admission to prisons.
In Conclusions 72. of the National Assembly of the Republic of Serbia of 23 October 2014 states: "With regard to the assessment of the Protector of Citizens that there are significant shortcomings in active, individual and collective correctional work of corrections officers with convicts, the National Assembly orders the Ministry of Justice to improve treatment of convicts in penal facilities in terms of more intensive an effective work of corrections officers with convicts, increasing their work engagement where possible, education and the highest level of exercise of religious rights and to pass new or modify the existing regulations without delay, which would ensure implementation of the law in accordance with the applicable standards in that regard."
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "Due to significant shortcomings, pointed out by the Protector of Citizens in his Report, regarding active individual and collective correctional work of corrections officers with convicts, work engagement of convicts and their education, use of a system of subsequent reclassification of convicts which enables convicts to progress into a more favourable correctional group in case of good behaviour, preparation of convicts for release and establishing of cooperation with social welfare organisations, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve treatment of convicts in order to rectify the said shortcomings and emphasizes the duty to pass regulations for implementation of the law in accordance with the applicable standards without delay."
The prison facilities intended for underage persons and women 5 are central institutions (and the only such institutions) and 200 persons can be placed in each of them. These institutions, particularly those intended for underage persons, have strong informal systems, which makes appropriate correctional work impossible. Another problem in these central institutions is that incarcerated persons are far away from their homes, which makes their contacts with their families considerably difficult.
Shortcomings in health care in prisons are numerous. First of all, health care is not provided on a continual basis, which can be seen from the fact that convicts' medical records are not forwarded to institutions where convicts were admitted n or are medical records transferred to institutions where convicts are transferred. First medical examinations are superficial, incarcerated persons are not examined without their clothes and there are no protocols specifying the content of medical examinations. The duty to perform periodic medical examinations set by the regulations was not implemented in practice, but this duty has been cancelled by the new Law on Enforcement of Penal Sanctions. There are still cases of non-medical staff being present during medical examinations. Lack of medicines is observable, which results
5 The Penal and Correctional Institution for Women in Požarevac, the Juvenile Penal and Correctional in Valjevo and the Penal and Correctional Facility in Kruševac.
from the fact that medicines are procured individually by institutions, instead of being purchased through centralised procurement.
Physicians mainly do not exercise their role in the protection against abuse because in certain cases they fail to identify and describe in detail all injuries observed, particularly because they fail to provide their opinion about cause and effect between the coercion used or an explanation how the injuries were inflicted and the injuries observed directly during examination. Incarcerated persons with mental disorders are still placed in the regular prison system, which is not appropriate for their needs and causes a large safety risk for those persons and their environment and is in any case a large burden for staff who are not trained to act in such cases.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states: "The National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve its treatment of convicts in terms of provision of health care, in accordance with the applicable regulations and standards. This is based on the assessment of the Protector of Citizens that there are serious shortcomings in the provision of health care to convicts in penal facilities, particularly regarding the provision of necessary medicinal products and therapy, medical examinations after prison intake procedure, lack of unique medical examination protocols, failure to perform periodic medical examinations of convicts and daily medical examinations of patients, inclusion of non-medical staff, placement of convicts with mental disorders in regular prison regime, failure to submit compulsory periodic reports on health condition of convicts, sanitary and hygiene conditions in institutions, the quality of food, physical activities of convicts etc., stipulated by the Law on Enforcement of Penal Sanctions. Taking into account that the Protector of Citizens repeated his assessments stated in all previous annual reports that competence for health care services in penal facilities should be transferred from the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to the Ministry of Health, which is one of the preconditions for efficient investigation of allegations of violent treatment of persons deprived of liberty, the National Assembly emphasizes it is necessary for the Government to consider this issue as soon as possible and propose to the National Assembly amendments to the relevant legal arrangements."
In the field of work of psychiatric hospitals, certain improvements have been observed during visits in application of procedures for involuntary commitment of patients. Namely, courts deliberate and decide on involuntary commitment in the manner and within the time limit set by the law. Hearings are conducted at the hospitals, where persons who are to be committed are also interrogated, and decisions on involuntary commitment are given to patients. Hospitals have improved informing of patients on the code of conduct in hospitals and on their rights through provision of special brochures which are distributed to patients and their families and/ or guardians immediately upon admission for treatment in a hospital. Although some adaptation and renovation work was done in certain hospitals, the rooms in the large psychiatric hospital in Kovin are dilapidated and do not meet the applicable standards.
The Law on the Protection of Persons with Mental Disabilities 6 contains numerous shortcomings. It provides that community-based mental health care should be organised as an additional activity at the existing psychiatric institutions and medical centres, which lack trained human resources and are unwilling to provide this service. Due to such arrangements, efforts aimed at deinstitutionalisation in Serbia remain marginal. The Law provides for isolation of psychiatric patients, which not only violates the applicable standards, but was effectively abolished as a practice in Serbia many years ago. In addition, the Law sets out the powers of police officers with regard to maintaining order within psychiatric hospitals, which is not compliant with the applicable standards, because they are uniformed and armed persons. The Protector of Citizens informed the public of these shortcomings and made proposals for their elimination 7 .
The existing psychiatric hospitals are large: between several hundreds and one thousand patients are placed in each of them. By and large, they mostly resemble asylums, because many patients placed in them are excluded from the community, most of them for well over a month, while some remain committed for ten years or so or even for life. Many of the patients are kept there primarily due to social considerations, as no community-based treatment and support are available.
Court decisions on involuntary commitment of persons with mental disorders are still mainly based on expert evaluations of physicians employed in hospitals which proposed such measure. In addition, there are still cases of consent for hospitalisation and treatment in a hospital being given by agitated persons brought by the police, although statements given under such circumstances cannot be legally relevant.
Certain users of social welfare homes, including children with developmental disorders, are isolated for extended periods of time. No significant progress towards deinstitutionalisation of such institutions has been made so far. As early as in 2013, NPM issued a recommendation to the competent authorities to take all necessary actions with the aim of reducing the existing number of users in the "Veternik" residential centre in the next two years, i.e. to reduce the number of over 500 users of various age to 100 adults or 50 children. The Ministry of Labour, Employment, Veteran and Social Affairs has not fully cooperated with the Protector of Citizens and has not taken the necessary measures to remedy the identified shortcomings pursuant to the recommendations given to it. Indeed, the Minister has, on several occasions, publicly opposed the recommendations and warned the Serbian public there had been instances of cannibalism among the persons placed in a facility. It is completely inappropriate to state the above as an argument not to go ahead with the deinstitutionalisation of facilities where persons with intellectual impairments are placed. In addition, the Protector of Citizens is of the opinion that bringing up the issue of cannibalism among persons with intellectual impairments serves no other purpose but to unnecessarily scare the public, which further reinforces the stigmatisation of those persons.
In Conclusions 74. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With regard to the assessment of the Protector of Citizens that many children are still placed in social welfare homes because conditions have not been provided for their community care; that those children are excluded from the normal social environment for unacceptably long periods, and thus they do not acquire or over time lose social and other skills necessary for living outside the institutions; that financial and other living conditions in such institutions are not compliant with the applicable standards and that understaffing is a pressing issue; that the number of children placed in those institutions significantly exceeds the statutory maximum and that in many cases, contrary to regulations, children are placed together with adult users; and that the existing shortcomings of the institutional child care system display elements of inhuman or degrading treatment, the National Assembly orders the competent public authorities to intensify activities on deinstitutionalisation, i.e. reduction of capacities of the existing social welfare homes and their phasing out, while ensuring full community child care and providing comprehensive support."
Increased supervision of users is not performed as increased monitoring of users and provision of additional support/care; instead, it involves de facto isolation. What is worrying is the fact that demented persons in gerontology centres and care homes for elderly are deprived of liberty exclusively on the basis of a physician's opinion.
7http://ombudsman.npm.rs/index.php?option=com_content&view=category&layout=blog&id=111&Itemid=114&l ang=sr.
In Conclusions 74. of the National Assembly of the Republic of Serbia of 23 October 2014 states: "With regard to the assessment of the Protector of Citizens that in social welfare homes a number of children with mental disorders and/ or intellectual disabilities are isolated, and having in mind the position of the UN Committee against Torture that isolation of persons with severe or acute mental disorder is not allowed, as well as the position of the UN Special Rapporteur on Torture that isolation of such persons, regardless of its duration, constitutes cruel, inhuman or degrading treatment, the National Assembly orders the competent public authorities to take all available measures to prevent social welfare homes from isolating children with mental disorders and/ or intellectual disabilities."
Public authorities have not established a systemic approach which would ensure effective actions in accordance with the applicable regulations and international standards in the field of asylum-seeking and migrations.
According to the figures of the Ministry of Internal Affairs, in 2014 there were 23,429 foreign nationals who illegally entered the territory of the Republic of Serbia, mostly from the warstricken areas and majority of them intending to continue on to Northern and Western European countries. In that period, certificates have been issued to 16,730 foreigners who expressed a wish to seek asylum in the Republic of Serbia. During visits to places where foreigners are registered, the NPM found that these certificates had been issued by default to all foreigners who came, although most of them never stated any intent to seek asylum in the Republic of Serbia. This is supported by the fact that, out of the total number of foreigners registered, only 388 of them have applied for asylum and almost all of them left Serbia within a short period of time. The NPM believes that an insufficiently effective system for managing migration flows through the Republic of Serbia has resulted in an increase in the number of illegal entries by irregular migrants into the country.
For that purpose, the Protector of Citizens, acting in the capacity of the National Preventive Mechanism, issued 27 recommendations to the Ministry of Internal Affairs and the Commissariat for Refugees and Migration in early 2014 for potential improvements in the treatment of irregular migrants/asylum-seekers in the Republic of Serbia. In 2014 his activities were focused on overseeing compliance with these recommendations, which prompted a large number of visits to relevant authorities and institutions. On the basis of direct inspection of activities of the competent authorities and collected data, NPM found that the competent authorities have not complied with the majority of recommendations issued.
Foreigners who obtained certificates of their intent to seek asylum in the Republic of Serbia de facto legalised their stay in the Republic of Serbia; however, instead of reporting to an asylum centre within 72 hours, they move towards Serbia's Northern border, unimpeded by the police. It is beyond believe that the competent authorities allow thousands of these migrants to move individually across the territory of the Republic of Serbia, without any restrictions or control.
This has given rise to an informal system which has taken on an important role with regard to the position of migrants and their crossing of borders to neighbouring countries, with ample scope for corruption among Serbian officials.
In Conclusions 72. of the National Assembly of the Republic of Serbia of 23 October 2014 states the following: "With regard to the assessment of the Protector of Citizens that there are numerous illegalities and irregularities in the treatment by competent authorities of irregular migrants and foreigners who expressed their intention to seek asylum in the Republic of Serbia, the National Assembly, endorsing all recommendations the Protector of Citizens gave to the Ministry of Internal Affairs and the Commissariat for Refugees and Migration in that regard, orders the authorities to which those recommendations were given to fully implement them without delay, particularly to register all migrants who entered into the territory of the Republic of Serbia, to keep migrants under full control of the competent authorities pending final resolution of their status, i.e. deportation in accordance with the applicable regulations, as well as to pass decisions on asylum requests in an expedited procedure, while thwarting all attempts to abuse rights, with full respect for all minimum rights of irregular migrants and asylumseekers, in accordance with the rules of the international law and the applicable standards."
1.2. Key information on activities of the Protector of Citizens in the capacity of the National Preventive Mechanism (NPM) in 2014 8
In 2014, NPM visited 79 places of detention. 38 scheduled and 41 visits with a specific purpose were made.
As part of the scheduled visits, the NPM visited 25 police stations, 3 prisons, 2 psychiatric hospitals, 5 care homes for the elderly. In addition, the NPM also performed 3 monitoring procedures in case of persons repatriated in the readmission at the "Nikola Tesla" Airport. On the basis of these visits, the NPM sends reports to the visited institutions with recommendations for rectifying the identified shortcomings that result or may result in torture or mistreatment.
In 2014, the NPM focused on visits with a specific purpose relating to the prevention of abuse of refugees and migrants in the Republic of Serbia. Through oversight of compliance with the NPM's recommendations for improving the treatment of refugees and migrants in the Republic of Serbia 9 , the NPM visited 41 institutions together with the Belgrade Centre for Human Rights. He visited 23 police stations, 5 regional border police centres, 5 camps for asylum-seekers, 5 penal institutions, 2 juvenile correctional facilities and the Shelter for Foreigners in Padinska Skela.
With the aim of promoting and protecting the rights of persons deprived of liberty and prevention of torture, in 2014 NPM representatives took part in numerous conferences, round tables and workshops. The Deputy Protector of Citizens, who is in charge of rights of persons deprived of liberty, held several lectures for students at the Faculty of Law and issued about 30 press releases in connection with prohibition of abuse and improvements in the field of prevention of torture.
The NPM has continued its successful cooperation with the OSCE Mission to Serbia. A representative of the NPM took part in the workshop titled "Prevention of Torture", organised in Belgrade in February 2014 by the OSCE Mission to Serbia, whose aim was to represent the importance of regional cooperation and exchange of experiences between Western Balkans countries. With the support of the OSCE Mission to Serbia, a representative of the NPM took part in the two-day OSCE meeting "Prevention of Torture" held in Vienna in April 2014.
In addition, cooperation with the UNCHR Office in Serbia and the Belgrade Centre for Human Rights and Group 484 has been intensified, with a view of implementing activities aimed at improving and protecting of the rights of asylum-seekers in Serbia.
In November 2014, the Protector of Citizens, acting in the capacity of the NPM, together with the OSCE Mission to Serbia and the UNHCR Office held the First South-East OPCAT Forum. The Forum was attended by members of the UN Subcommittee on Prevention of Torture (SPT), representatives of national preventive mechanism of the Southeast Europe countries and representatives of the NPMs of Romania, Germany, Greece, the Czech Republic, France, Poland, Estonia and Azerbaijan, members of the European Committee for the Prevention of Torture (CPT), the Association for the Prevention of Torture (APT) and other international organisations, as well as representatives of the civil society. A press conference titled "Prevention of Torture
8 For more information see Chapter 5 of this Report. 9 Recommendation 75-6/14, available at: http://www.zastitnik.rs/index.php/lang-sr/2012-02-07-14-03-33/31902014-02-14-08-47-05.
and Other Forms of Torture and Fight against Impunity" was also held. In addition to the participants in the Forum, the conference was also attended by representatives of the relevant ministers and of Committees of the National Assembly of the Republic of Serbia, as well as courts and prosecution offices.
In 2014, the Protector of Citizens continued his cooperation with members of the Southeast Europe NPM Network. In May 2014, a representative of the Serbian NPM took part in the Network meeting titled "Methodology of Writing NPM Reports" held in Ljubljana (Slovenia). In October 2014, NPM representatives attended a special training session titled "Monitoring of Psychiatric Institutions in the Context of Protection from Torture and Inhuman and Degrading Treatment" held in Skopje (Macedonia).
In February 2014, the Protector of Citizens, the Ministry of Internal Affairs and the Belgrade Centre for Human Rights held a press conference titled "Challenges faced by the Republic of Serbia in the Field of Asylum and Migrations." In March 2014, NPM representatives took part in the conference "Situation in the Field of Mental Health and Measures taken in the Deinstitutionalisation Process", organised by the Helsinki Committee for Human Rights and the International Assistance Network. On the UN International Day in Support of Victims of Torture, the 26th of June, the Committee of the Lawyers' Committee for Human Rights organised a press conference titled "The Role of Health Care Services in the Prevention of and Punishment for Torture", in which the Deputy Protector of Citizens in charge of this field and a representative of the NPM presented the health care situation in prisons. In September 2014, Group 484, the Belgrade Centre for Human Rights and the Belgrade Centre for Security Policy held a conference titled "System of Asylum and Migrations", which was addressed by the Deputy Protector of Citizens in charge of this field and a representative of the NPM.
In 2014 the Serbian NPM received study visits from representatives of the Georgian NPM, the Public Monitoring Commissions (PMC) of Russia and the Ukrainian NPM. During those study visits, the Serbian NPM presented his work and visited places of detention together with the representatives of these monitoring mechanisms. The Serbian NPM was also visited by representatives of the NPMs, public authorities and non-governmental organisations of Montenegro and Albania.
2. Prohibition of Torture
2.1. National legislation
The Constitution of the Republic of Serbia 10 guarantees human dignity and inviolability of physical and mental integrity and explicitly prohibits abuse 11 .
Article 25, paragraph 2 of the Constitution of the Republic of Serbia. No one shall be subjected to torture, inhuman or degrading treatment or punishment 12 .
10 Official Gazette of RS, No. 98/2006.
11 Constitution of the Republic of Serbia, Articles 23, 24 and 25.
12 Taken from Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Prohibition of torture is also envisaged by other regulations, including inter alia the Criminal Procedure Code 13 , the Law on Police 14 and the Law on Enforcement of Penal Sanctions 15 . According to the Criminal Code 16 , torture and abuse is a separate criminal offence 17 .
Article 137 of the Criminal Code of the Republic of Serbia.
(1) Whoever abuses another person or treats another person in a humiliating and degrading manner shall be sentenced to imprisonment for up to one year.
(2) Whoever inflicts severe pain or suffering on another person by forcing, coercing or in any other inadmissible manner with the aim of obtaining a confession, a statement or any other information from that person or a third person or intimidating or unlawfully punishing that person or any third person or with any other aim based on any form of discrimination shall be sentenced to imprisonment in the duration of between six months and five years.
(3) If the criminal offences referred to in paragraphs 1 and 2 of this Article is committed by an official in discharge of his/her duties, such person shall be sentenced to imprisonment in the duration of between three months and three years for the criminal offence referred to in paragraph 1 and imprisonment in the duration of between one and eight years for the criminal offence referred to in paragraph 2.
2.2. International instruments
Serbia is a state party to all major conventions on prohibition and prevention of torture. The International Covenant on Civil and Political Rights 18 , which in its Article 7 accepts the provision on prohibition of torture from Article 5 of the Universal Declaration of Human Rights 19 , was ratified in 1971 20 .
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 21 (Convention against Torture) was ratified in 1991 22 . It is one of the most important international instruments against torture.
Article 1, paragraph 1 of the Convention against Torture.
The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In addition to providing the most comprehensive definition of torture, the Convention against Torture contains a set of provisions relevant for elimination of torture.
13 Official Gazette of FYR, Nos. 70/2001 and 68/2002 and Official Gazette of RS, Nos. 58/2004, 85/2005, 115/2005, 85/2005 – other law, 49/2007, 20/2009 – other law, 72/2009 and 76/2010.
14 Official Gazette of RS, Nos. 101/2005, 63/2009 – decision of the Constitutional Court and 92/2011.
15 Official Gazette of RS, Nos. 85/2005, 72/2009 and 31/2011.
16 Official Gazette of RS, Nos. 85/2005, 88/2005 - corrigendum, 107/2005 - corrigendum, 72/2009, 111/2009 and 121/2012.
17 Article 4 of the Convention against Torture: (1) Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. (2) Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
18 Signed on 19 December 1966 in New York.
19 Adopted by the UN General Assembly on 10 December 1948 in Paris.
20 Official Gazette of SFRY, No. 7/71.
21 Adopted on 10 December 1984 in New York.
22
Official Gazette of SFRY – International Agreements, No. 9/91.
Article 2, paragraph 1 of the Convention against Torture.
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
The Convention against Torture also contains the provisions which prohibit expelling and extradition of a person to a state where he/she would be subjected to torture.
Article 3, paragraphs 1 and 2 of the Convention against Torture.
No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
The Convention against Torture obliges State Parties to ensure that education and information regarding the prohibition against torture are fully included in the training of officers, medical staff, public office holders and any other persons who in any manner come into contact with persons deprived of liberty 23 .
Article 12 of the Convention against Torture.
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
In that context, each State Party must ensure that any individual who alleges he has been subjected to torture has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities, ensuring that the complainant and witnesses are protected against all mistreatment or intimidation as a consequence of his complaint or any evidence given 24 .
Article 14, paragraph 1 of the Convention against Torture.
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. 25
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made 26 .
The Convention against Torture establishes the Committee against Torture 27 . The States Parties shall submit to the Committee reports on the measures they have taken to give effect to their undertakings under this Convention. Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee 28 . The Republic of Serbia submitted reports to the Committee and the Committee made comments on these reports 29 .
23 Article 10, paragraph 1 of the Convention against Torture.
24 Article 13 of the Convention against Torture.
25 Article 14 of the Convention against Torture.
26 Article 15 of the Convention against Torture.
27 Article 17 of the Convention against Torture.
28 Article 19, paragraph 1 of the Convention against Torture.
29 Comments made by the Committee against on its 41st session held from 3 to 21 November 2008 on the Report of the Republic of Serbia.
The Republic of Serbia is a Member State of the Council of Europe. The European Convention for the Protection of Human Rights and Fundamental Freedoms 30 and the European Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 31 (European Convention against Torture) were ratified in 2003. 32
The European Convention for the Prevention of Torture establishes the Committee for the Prevention of Torture. 33 Each Party must permit visits by the Committee to any place where persons are deprived of their liberty. 34 A Party must provide the Committee with access to its territory and the right to travel without restriction, full information on the places where persons deprived of their liberty are being held, as well as unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction and the right to interview in private persons deprived of their liberty and any person whom it believes can supply relevant information. 35 After each visit, the Committee draws up a report on the facts found during the visit. 36 By the end of 2014, the Committee has visited Serbia three times, in 2004, 2007 and 2011. 37
3. Optional Protocol to the Convention against Torture
Through the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 38 (Optional Protocol) the State Parties reaffirmed that abuse is prohibited and constitutes serious violations of human rights 39 .
Under the Optional Protocol the State Parties have agreed to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. 40
The objective of the Optional protocol to ensure visits or continuous presence of a preventive mechanism in institutions where persons deprived of liberty are held stems from the underlying belief that the main problem of closed-type institutions is exactly the fact that they are closed and whatever happens in them takes place far away from the public's eye.
Each State Party must allow visits by the mechanisms established under the Optional Protocol to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (places of detention). 41
30 Made on 4 November 1950 in Rome.
31 Signed on 26 November 1987 in Strasbourg.
32 Official Gazette of Serbia and Montenegro – International Agreements, Nos. 9/2003, 5/2005 and 7/2005 corrigendum and Official Gazette of Serbia and Montenegro – International Agreements, No. 9/2003).
33 Article 1 of the European Convention for the Prevention of Torture.
34
Article 2 and Article 7, paragraph 1 of the European Convention for the Prevention of Torture.
35 Article 8 of the European Convention for the Prevention of Torture.
36 Article 10, paragraph 1 of the European Convention for the Prevention of Torture.
37 Reports on visits to the Republic of Serbia and responses of the Serbian Government are available at thhe official website of the European Committee for the Prevention of Torture www.cpt.coe.int/en/states/srb.htm.
38 Adopted on 18 December 2002 in New York at the 57th session of the UN General Assembly under the Resolution A/RES/57/199 and entered into force on 22 June 2006.
39 Preamble of the Optional Protocol.
40 Article 1 of the Optional Protocol.
41 Article 4, paragraph 1 of the Optional Protocol.
3.1. Subcommittee on Prevention of Torture 42
The Optional Protocol establishes Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 43 .
The Subcommittee on Prevention of torture shall visit any places of detention and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment. 44
The State Parties to the Optional Protocol undertake:
- To receive the Subcommittee on Prevention in their territory;
- To grant unrestricted access to all places of detention, their installations and facilities, and liberty to choose such places;
- The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information;
- To grant the Subcommittee on Prevention unrestricted access to all information concerning the number of persons deprived of their liberty in places of detention, the number of places and their location, unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention, as well as to provide all relevant information the Subcommittee on Prevention may request to evaluate the needs and measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
- To examine the recommendations of the Subcommittee on Prevention and enter into dialogue with it on possible implementation measures. 45
The Subcommittee on Prevention has not yet visited Serbia.
3.2. National Preventive Mechanisms (NPM)
According to the Optional Protocol, each State Party must set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment 46
NPM is entitled to:
- Access to all information concerning the number of persons deprived of their liberty in places of detention, as well as the number of places and their location;
- Access to all places of detention and their installations and facilities, with the liberty to choose such places;
- The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the NPM believes may supply relevant information, by its own choice 47 .
NPM is authorised to regularly examine the treatment of the persons deprived of their liberty in places of detention, to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into
42 www2.ohchr.org/english/bodies/cat/opcat/.
43 Article 2, paragraph 1 of the Optional Protocol.
44 Article 11, item (а) of the Optional Protocol.
45 Articles 12 and 14 of the Optional Protocol.
46 Article 3 of the Optional Protocol.
47 Article 20 of the Optional Protocol.
consideration the relevant norms of the United Nations, as well as to submit proposals and observations concerning existing or draft legislation 48 .
The States Parties shall guarantee the functional independence of the NPM as well as the independence of their personnel 49 .
No authority or official shall order, apply, permit or tolerate any sanction against any person or organisation for having communicated to the NPM any information, whether true or false, and no such person or organisation shall be otherwise prejudiced in any way 50 .
The States Parties undertake to make available the necessary resources for the functioning of the NPM 51 .
The relation between NPM and public authorities is based on the principles of trust and cooperation.
The competent authorities of the State Party concerned shall examine the recommendations of the NPM and enter into a dialogue with it on possible implementation measures 52 .
The competent authorities of the State Party must publish and distribute annual reports of the NPM.
3.3. Setting up of NPM in Serbia
Serbia signed the Optional Protocol on 25 September 2003 and ratified it on 1 December 2005 53 .
Serbia became a State Party to the Optional Protocol on 26 September 2006 54 .
With four years of delay, Serbia complied with its duty to maintain, designate or establish independent national preventive mechanism at the latest one year after the entry into force of the Optional Protocol or of its ratification or accession. 55
Serbian NPM has been established under the Law amending the Law on Ratification of the Optional Protocol adopted on 28 July 2011. 56
In accordance with the agreement reached during a public debate, Serbia did not form a new NPM authority; instead, Serbia opted for an authentic, complex NPM model, which implies that the tasks of the NPM are carried out by the existing independent public authority in cooperation with authorities of decentralised units and the civil sector.
48 Article 19 of the Optional Protocol.
49 Article 18, item 1 of the Optional Protocol.
50 Article 21, item 1 of the Optional Protocol.
51
Article 18, item 3 of the Optional Protocol.
52 Article 22 of the Optional Protocol.
53 Official Gazette of Serbia and Montenegro - International Agreements, No. 16/2005, amendments 2/2006.
54 30 days after the ratification instrument was submitted to the United Nations Secretary-General.
55 Article 17 of the Optional Protocol.
56 The Law amending the Law on Ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment , Official Gazette of RS – International Agreements, No. 7/11.
The Protector of Citizens shall carry out the duties of the NPM in cooperation with Ombudsmen of the autonomous provinces and associations pursuing the goals of promoting and protecting human rights and freedom 57 .
When this complex NPM model was chosen in Serbia, due consideration was given to the principles relating to the status of national institutions for the promotion and protection of human rights 58 .
Pursuant to the Serbian Constitution 59 , the Protector of Citizens is an independent public authority which protects the citizens' rights and oversees work of public administration authorities and any other authorities vested with public powers 60 . Under the Law on the Protector of Citizens 61 , the Protector of Citizens is an independent public authority which autonomously performs its duties and protects and ensures promotion of citizens' rights 62 . In April 2010 the Protector of Citizens was recognised as an authority acting on the basis of the Paris Principles 63 .
The Protector of Citizens is an independent and autonomous public authority, a general-type Ombudsman, accredited as a National Human Rights Institution with the "A" status at the International Coordinating Committee (ICC).
Under the Law on the Protector of Citizens, the Protector of Citizens is authorised to visit places where persons deprived of liberty are placed, to interview in private persons deprived of liberty and all employees in such institutions and to access any information of relevance for achievement of the objectives of his preventative actions, regardless of the degree of confidentiality of such information 64 .
The powers of the Protector of Citizens in the field of persons deprived of liberty set out by the Law on the Protector of Citizens is equivalent to the NPM mandate specified by the optional Protocol.
The statement of reasons for the draft law establishing the NPM 65 contemplates the provision of the material resources needed for the exercise of the NPM's mandate, including the employment of the necessary number of staff at the Secretariat of the Protector of Citizens, and the provision of the necessary funds as a dedicated line within the budget of the Protector of Citizens 66
4. Methodology, Resources and Organisation of NPM in 2014
4.1. Methodology of NPM
The approach taken by the Serbian NPM is exclusively preventative. The NPM does not oversee the lawfulness and regularity of work of the competent institutions on a case-by-case basis; instead, it timely notifies about this the organisational unit of the Protector of Citizens which acts on complaints of persons deprived of liberty.
The Serbian NPM visits institutions where persons deprived of liberty are placed according to the previously established methodology.
57 Article 2а of the Law amending the Law on Ratification of the Optional Protocol.
58 Article 18, item 4 of the Optional Protocol.
59 Official Gazette of RS, No. 98/2006.
60 Article 138, paragraph 1 of the Serbian Constitution.
61 Official Gazette of RS, No. 79/2005 and 54/2007.
62 Article 1, paragraph 1 and 2 and Article 2, paragraph 1 of the Law on the Protector of Citizens.
63 http://www.ohchr.org/Documents/Countries/NHRI/Chart_Status_NIs.pdf.
64 Article 21 paragraphs 1 and 2 and Article 22 of the Law on Protector of Citizens.
65 The Law amending the Law on Ratification of the Optional Protocol to the Convention against Torture.
66
Draft Law amending the Law on Ratification of the Optional Protocol, explanation.
The work methodology of the Serbian NPM is primarily based on the provisions of the Optional Protocol which set out the mandate of the NPM to make regular visits to institutions where persons deprived of liberty are or may be placed.
The Serbian NPM plans to visit all institutions where persons deprived of liberty are placed in the first four years of its work.
The NPM methodology recognizes the following types of visits: scheduled, follow-up visits visits with a specific purpose and ad hoc visits.
,
Visits can be announced and unannounced. After the initial period during which visits were mostly announced, the aim is to make more unannounced visits in the coming months and years. This will ensure more comprehensive insight in the actual situation, which will increase the preventative effect.
The methodology of the Serbian NPM is focused on preparation and implementation of unannounced visits to institutions where persons deprived of liberty are or can be placed.
After the initial period, when the objective set under the methodology was to make scheduled visits to all institutions, the increase of follow-up visits is planned for the following period. This ensures monitoring of the situation found during scheduled visits, particularly compliance of the competent authorities with recommendations given by the NPM.
The methodology of the Serbian NPM is focused on follow-up visits to places of detention.
Preparations for visits to a facility involve taking stock of the available information concerning the facility. This is followed by assignment of specific tasks; as a rule, the visit team is divided into four thematic groups; the first one is tasked with observing the conditions of placement (the group for observation of the conditions of placement), the second one is tasked with providing legal protection at the facility (the legal group), the third one deals with correctional work with persons deprived of liberty (the correctional work group), while the fourth group is tasked with reviewing the exercise of health care by inmates (the health care). In order to make the gathering of information during visits more efficient, all team members are provided in advance with the working material (questionnaires, report structure and models of specific sections of the report) which they use as guidance.
The NPM teams in charge of visits to institutions where persons deprived of liberty are placed are multi-disciplinary and as a rule include experienced lawyers, a psychiatrist, a forensic physician and a psychologist.
Visits take place according to pre-determined stages. The first stage is an interview with the facility's management, while the second stage is a joint tour of the facility. During the third stage, members of the NPM team's thematic groups (legal, correctional work and health care) interview the managers of the reference services and examine documentation. The fourth stage involves interviews with persons deprived of liberty, while the fifth stage consists of a brief meeting of all thematic groups, followed by a final interview with the facility's management in which the team present their preliminary impressions of the visit and the situation they observed. However, these stages are not mandatory and the actual structure of a visit will depend on the type of visit and other circumstances.
To enable more efficient and systematic work, questionnaires have been developed for team members to use and fill out during the visits. They also have at their disposal compendiums of quotations from relevant regulations and standards applicable in the specific areas of their work.
According to the work methodology, reports are as a rule expected to follow a predetermined structure. However, depending on the type of visit and the type of data collected during a control visit, the predetermined report structure may be modified and adapted to any specific needs if requested by team members.
In the reports of visits to facilities where persons deprived of liberty are placed, the NPM lists the identified omissions and makes proposals for remedying any shortcomings that may lead to torture or mistreatment. Where a shortcoming or irregularity is identified, the pertinent recommendation is supported by references to relevant regulations and standards with which the current situation or actions must be made compliant.
The reports are submitted to the visited facilities and the ministry in charge, together with an invitation to attend a meeting in which opportunities for compliance with the recommendations would be examined.
The NPM's methodology calls for dialogue with the visited facility and the ministry in charge.
The aim of the dialogue with the visited facilities and the ministries in charge is to take stock of the current situation at the visited facility and in the system as a whole, primarily as a means of devising the best way to ensure compliance with the recommendations made by the NPM after the visits.
In order to strike a balance between confidentiality and transparency, the NPM publishes each report, with all personal data anonymised, once it has received a reply from the competent authorities to the recommendations set out in the report. The reports and the replies made by the competent authorities are posted on the website of the Protector of Citizens and on the NPM page.
According to the NPM methodology, special attention is paid to the protection of persons deprived of liberty, employees at places of detention and all other persons who had contacts with the NPM, who provided information on the treatment of persons deprived of liberty or drew attention to instances of mistreatment.
The methodology of the Serbian NPM attaches great importance to thwarting any attempts at retaliation by protecting the sources of information, i.e. The identity of the persons who provided the information. If their identity has been recognised, the NPM exercises its preventive activity through follow-up visits to those persons in order to examine their situation and how they are treated by the staff of the detention facilities. Furthermore, persons in charge are advised that any retaliation against persons who cooperated with the NPM constitutes the most severe form of mistreatment.
The NPM methodology provides for intensive efforts against impunity for torture or any other form of mistreatment. Any instances of torture or mistreatment are promptly brought to the attention of the competent authorities, upon which they are expected to undertake all available measures and activities within their spheres of competence in order to identify the employees responsible for such actions.
The methodology of the Serbian NPM places great emphasis on supporting the activities undertaken by the competent authorities in the fight against impunity for torture and apportionment of both individual and objective responsibility.
4.2. Material resources and financial independence of NPM
In order to effectively fulfil its mandate in accordance with the Law on Ratification of the Optional Protocol, the NPM needs to be provided with the required material resources and financial independence.
In the adopted budget of the Protector of Citizens for 2013, the amount of RSD 7,236,267.30 (approximately € 60,302.00) was earmarked for the activities of the NPM.
In 2014, the staff entrusted with NPM duties used two offices in the building allocated to the Protector of Citizens. They also used a van to transfer the members of the visit team. The staff entrusted with NPM had at their disposal all necessary office equipment and supplies.
4.3. Special NPM unit and its functional independence
In late 2012, the reactive duties of responding to complaints of persons deprived of liberty conducted at the Secretariat of the Protector of Citizens had been separated from the proactive duties involved in the prevention of torture. This resulted in the de facto formation of a separate organisational unit of the NPM, managed by an operational manager reporting to the Protector of Citizens or a Deputy designated by him.
In order to work effectively, the NPM needs to have a sufficient number of employees with the required knowledge in the field of prevention of torture.
In 2014, the Secretariat of the Protection of Citizens had three employees assigned to work on NPM duties. Of those three, two are employed indefinitely, while one is on a fixed-term employment contract.
The understaffing issue prevents the NPM from exercising the full scope of its duties, which will affect the efficiency of the fight against torture in the Republic of Serbia.
4.4. Participation of Provincial Ombudsman in NPM activities
In accordance with the signed Memorandum on Cooperation, in 2014 the Protector of Citizens continued cooperating with the Ombudsman of the Autonomous Province of Vojvodina (Provincial Ombudsman) in visits to places of detention in the territory of the Autonomous Province of Vojvodina. In March 2014, the Protector of Citizens, in cooperation with the Ombudsman of the Autonomous Province of Vojvodina and the OSCE Mission to Serbia, organised a dialogue with representatives of the Ministry of Internal Affairs and police administrations in the territory of the Autonomous Province of Vojvodina. In December 2014, the Protector of Citizens, the Provincial Ombudsman and the OSCE Mission to Serbia organised a round table titled "Role of National Preventive Mechanism (NPM) in Prevention of Torture, Inhuman and Degrading Treatment of Persons with Metal Disorders". The round table was attended by representatives of the Ministry of Health, the Provincial Secretariat for Health Sector, Social Policy and Demography, psychiatric hospitals and the Ministry of Internal Affairs.
In 2014, representatives of the Provincial Ombudsman participated in 21 visits to institutions where persons deprived of liberty are placed.
The Provincial Ombudsman systematically monitored the position of persons placed in care homes for elderly and gerontology centres and for that purpose visited 4 institutions.
4.5. Participation of the Civil Sector in NPM activities
Acting in the capacity of the NPM under the Agreement amending the Agreement on Cooperation with Associations, in 2014 the Protector of Citizens continued his cooperation with non-governmental organisations, including: the Belgrade Centre for Human Rights (in the field of use of police powers and treatment of asylum-seekers), the Committee of Human Rights Lawyers (in the field of detention), the Helsinki Committee in Serbia (in the field of enforcement of penal sanctions), the International Assistance Network (in the field of rights of persons with mental disorders in detention), MDRI (in the field of rights of persons with disabilities in social security institutions), the Victimology Society of Serbia (in the field of rights of women in the prison system), the Human Rights Centre of Nis (in the field of rights of persons with disabilities in the prison system), the Human Rights Committee of Valjevo and Dialogue Valjevo (in the field of rights of juveniles in the prison system).
During the reporting period, members of the associations which had cooperation agreements with the NPM activities were actively involved, in accordance with the NPM methodology, in the visits to detention institutions, preparation of reports and recommendations, as well as in the dialogue with the visited institutions and the competent ministries.
In addition, in 2014 the Protector of Citizens also cooperated with the Youth Initiative for Human Rights, the organisation "ApsАrt", Group 484, the Association of Former Convicts "Libertas" and the Association of Users of Psychiatric Services and their Families "Duša" (Soul).
During the reporting period, the NPM also took part in numerous projects of civil society organisations, with which it cooperates in the field of prevention of abuse.
In 2014, the Serbian NPM intensified cooperation with the Belgrade Centre for Human Rights in the visits with a specific purpose. In this context, the focus was on monitoring the institutions where asylum-seekers in the Republic of Serbia are placed. 41 visits with a specific purpose were made, while the plan of visits for 2015 envisages intensive monitoring of treatment by competent authorities of refuges from war-torn regions.
The association Youth Initiative for Human Rights in cooperation with NPM organised training for prison services staff titled "Acting of the Staff of the Administration for the Enforcement of Penal Sanctions in accordance with Modern Standards of Prohibition of Abuse". In addition, in cooperation with the Youth Initiative for Human Rights, under the project titled "Building free of torture and impunity societies in the Western Balkans", a study visit to Montenegro was organised for representatives of the Serbian NPM and under the same project representatives of NMPs of Albania and Montenegro made a study visit to the Serbian NPM.
4.6. Participation of External Experts in NPM activities
The NPM teams for visits to places of detention should be multidisciplinary teams.
As the representatives of the Protector of Citizens, the Provincial Ombudsman and relevant associations in the teams formed to visit detention places are mostly lawyers, engagement of external associates from other professions is necessary to ensure the efficient work of the NPM.
In the course of its work, the NPM hires experts in the fields of forensic medicine, psychiatry, psychology, special prevention and internal medicine.
In 2014, the following experts participated in activities of the NPM: Mr. Đorđe Alempijević, PhD, forensic medicine expert, University School of Medicine of the University of Belgrade; Mr. Zoran Ilić, PhD, Department for Prevention and Treatment of Behavioural Disorders, University School of Special Education and Rehabilitation of the University of Belgrade; Mr. Dragan Ječmenica, PhD, forensic medicine expert, University School of Medicine of the University of Belgrade; Mr. Vladimir Jović, psychiatrist, University School of Philosophy of the University of Pristina/Kosovska Mitrovica and Dr. Radomir Samardžić, psychiatrist.
Expert contributions of the hired external experts resulted in the improvement of the quality of work of the NPM, primarily the prepared reports and numerous recommendations issued with the aim of eliminating identified shortcomings.
4.7. Training of NPM members
A representative of the NPM participated in two professional trainings on prevention of torture. In October 2014, the NPM of FYR Macedonia organised training for members of the Southeast Europe NPM Network titled "Monitoring of Psychiatric Institutions in the Context of Protection from Torture and Inhuman and Degrading Treatment", which was also attended by representatives of the Serbian NPM. In December 2014, the Commissariat for Refugees and Migration in cooperation with the Institute of Humanitarian Right in Sanremo organised training for representatives of governmental institutions and NGOs as part of the project titled "Protection of Asylum-seekers and Refugees".
In the future work of the NPM it is necessary to focus more on professional training for members of the NPM.
4.8. Other forms of cooperation
The Protector of Citizens has continued his cooperation with the OSCE Mission to Serbia. A representative of the NPM took part in the workshop titled "Prevention of Torture", organised in Belgrade in February 2014 by the OSCE Mission to Serbia in cooperation with Civic Solidarity organisation, the aim of which was to present the importance of regional cooperation and exchange of experiences of the West Balkans countries. With support from the OSCE Mission to Serbia, a representative of NPM attended a two-day OSCE meeting titled "Prevention of Torture" held in Vienna in April 2014.
Cooperation with the UNCHR Office in Serbia has been intensified, as well as cooperation with the Belgrade Centre for Human Rights and the Group 484, with the aim of implementing the activities for improvement and protection against abuse of asylum-seekers in Serbia.
In November 2014, acting in the capacity of NPM, the Protector of Citizens organised the first South-East OPCAT Forum and the conference titled "Prevention of Torture and Other Forms of Torture and Fight against Impunity".
5. Exercise of NPM's Mandate in 2014
5.1. Visits to places of detention
In 2014, the NPM visited 79 places of detention. 38 scheduled and 41 visits with a specific purpose were made.
As part of the scheduled visits, the NPM visited 25 police stations, 3 prisons, 2 psychiatric hospitals, 5 care homes for elderly. In addition, the NPM also performed 3 monitoring procedures in case of persons repatriated in the readmission process at the "Nikola Tesla" Airport. On the basis of these visits, the NPM sends reports to the visited institutions with recommendations for rectifying the identified shortcomings that result or may result in torture or mistreatment.
In 2014, the NPM focused on visits with a specific purpose relating to the prevention of abuse of refugees and migrants in the Republic of Serbia. As part of oversight of compliance with the NPM's recommendations for improving the treatment of refugees and migrants in the Republic of Serbia 67 , the NPM visited 41 institutions together with the Belgrade Centre for Human Rights.
67 Recommendation number 75-6/14, available at: http://www.zastitnik.rs/index.php/lang-sr/2012-02-07-14-0333/3190-2014-02-14-08-47-05.
He visited 23 police stations, 5 regional border police centres, 5 camps for asylum-seekers, 5 penal institutions, 2 juvenile correctional facilities and the Shelter for Foreigners in Padinska Skela.
In 2014, an unannounced night visit was made to the police administration Kruševac. The Plan of Visits for 2015 includes mostly unannounced visits.
Breakdown of implementation of the Plan of Visits for 2014:
| | Visits |
|---|---|
| | planned in |
| VISITS | |
| | 2014 |
| | 37 |
| Police stations | |
| | 7 |
| Prisons (including detention units) | |
| | 5 |
| Psychiatric hospitals | |
| | 3 |
| Social welfare homes | |
| Care homes for elderly and pensioners | 7 |
| / gerontology centres | |
| Monitoring procedures in case of persons | 1 |
| repatriated in the readmission | |
| | 5 |
| Regional border police centres | |
| | 5 |
| Camps for asylum-seekers | |
| | 1 |
| Shelters | |
| Facilities for the placement of underage foreign | 2 |
| nationals | |
| TOTAL | 73 |
5.2. Cooperation between public authorities and NPM during visits
In 2014, the NPM has been given free access to all places of detention, allowed to interview all persons deprived of liberty and employees found on site and given access to the full documentation.
During the NPM's visits to places of detention in 2014, the competent authorities and facilities acted in compliance with Article 20 of the Optional Protocol.
5.3. Reports of visits to places of detention
In the course of 2014, the NPM prepared 43 reports of visits to places of detention. Of those reports, 13 were reports with recommendations from scheduled visits, while 30 were reports from thematic visits.
The reports of the visits and the observed situation were drawn up by visit team members, including representatives of the Protector of Citizens, of the Provincial Ombudsman of the Autonomous Province of Vojvodina and the involved associations, as well as the experts engaged for this purpose.
5.4. Recommendations for remedying the identified shortcomings
In the reports on visits to places of detention, the NPM issues recommendations for remedial action to the competent authorities.
In the course of 2014, the NPM issued 345 recommendations for remedial action to the competent authorities.
Each recommendation includes a reference to the facts found and the identified shortcomings and lists the relevant regulations and standards with which the visited facility or the competent authority needs to comply. The reports have been submitted to the visited facilities and the ministries in charge, together with an invitation to a meeting in order to consider the possibilities for implementing the recommendations contained therein.
All recommendations issued to the visited institutions can be found in ADDENDUM I to this Report.
5.5. Establishing dialogue with government authorities
To ensure full compliance with the recommendations set out in the reports of the visits, in 2014 the NPM continued the ongoing dialogue with the Ministry with the Ministry of Interior and to the visited police administrations 68 . The aim of this dialogue was to improve the police treatment of persons deprived of liberty, prevent torture and improve the treatment of asylum-seekers and irregular migrants. Furthermore, the NPM has engaged in dialogue with the Ministry of Health, the Provincial Secretariat of Health, Social Policy and Demography, the Ministry of Interior and the visited psychiatric hospitals 69 in the field of mental health and deinstitutionalisation, more specifically the formation of special community-based units.
The NPM holds periodic meetings with the visited facilities and the Ministries in charge in order to review the recommendations and the current level of compliance with the applicable standards against torture, with a view to devising ways of ensuring implementation of the recommendations and compliance with the standards. These meetings focus on complex problems in the functioning of the facilities which cannot be adequately addressed internally or by individual efforts and require cross-departmental cooperation, in which case the NPM acts as an intermediary in the efforts to address the issues.
5.5.1 Review of NPM's Report by the National Assembly
The National Assembly reviewed the 2013 Annual Report of the National Preventive Mechanism for the first time. The parliament found the Report to be detailed and comprehensive, with an exhaustive presentation of activities aimed at improving the situation with regard to the status of persons deprived of liberty and creation of a torture-free society, with full respect for the dignity and rights of all persons whose freedom of movement is restricted. The National Assembly adopted by a majority vote the Conclusions 70 in which the parliament ordered the competent authorities to comply with the recommendations of the Protector of Citizens and to report on the outcome to the National Assembly by 31 December 2014. According to the information available to the Protector of Citizens, the competent authorities have not done as instructed.
68 the Police Administration of Šabac, the Police Administration of Smederevo, the Police Administration of Novi Sad, the Police Administration of Zrenjanin, the Police Administration of Pančevo, the Police Administration of Sremska Mitrovica, the Police Administration of Sombor, the Police Administration of Subotica, the Police Administration of Kikinda, the Police Administration of Novi Pazar and the Police Administration of Prijepolje.
69 Special Psychiatric Hospital "Sveti Vračevi" Novi Kneževac; Special Psychiatric Hospital "Dr. Slavoljub Bakalović" Vršac and Special Psychiatric Hospital Kovin.
70 Official Gazette of RS, No. 114/14.
In its review of the 2013 Annual Report of the National Preventive Mechanism, the National Assembly recognised the importance of the recommendations made by the NPM to the Ministry of Interior and adopted the Conclusions of the Committee on Justice, Public Administration and Local Self-government 71 which endorse the recommendations. In its Conclusions, the National Assembly ordered the Ministry of Interior and the Government to bring the Instructions on Treatment of Persons brought in by Police and Persons in police Custody in compliance with the applicable regulations, standards and rulings of the European Court of Human Rights and to provide the necessary funds in the 2015 budget for the construction or adaptation of custody cells in police stations to make them compliant with the applicable standards. The Conclusions of the National Assembly ordered the competent authorities to implement the recommendations fully and without delay and notify the National Assembly thereof in writing by 31 December 2014.
With regard to position of persons in pre-trial detention (hereinafter detainees), the National Assembly ordered the Administration for Enforcement of Penal Sanctions of the Ministry of Justice to improve the treatment of detainees and to allow them the full enjoyment of all pertinent rights, in full compliance with all applicable regulations and standards. The National Assembly endorsed the recommendations made by the Protector of Citizens with a view to improving the position of persons deprived of liberty and preventing mistreatment and ordered the competent authorities to implement them without delay 72 . The Administration for Enforcement of Penal Sanctions of the Ministry of Justice has been ordered to undertake all necessary measures to improve the treatment of convicted persons in accordance with the recommendations made by the Protector of Citizens.
In connection with the review of the 2013 Report of the National Preventive Mechanism 73 by the National Assembly, the Committee on the Rights of the Child passed a Conclusions 74 which ordered the competent public authorities to step up their deinstitutionalisation efforts and phase out the existing social welfare homes, while ensuring community-based care for all children and providing comprehensive support and appropriate action to ensure that social welfare homes discontinue the practice of placing children with mental and/or intellectual difficulties in solitary confinement.
In connection with the review of the 2013 Report of the National Preventive Mechanism 75 by the National Assembly, the Committee on Human and Minority Rights passed a Conclusions 76 which ordered the authorities addressed by the recommendations to immediately and fully implement all recommendations and in particular to register all migrants who enter the territory of the Republic of Serbia, to ensure that migrants are under full control by the competent authorities pending the final resolution of their status or their deportation in accordance with the applicable regulations and to ensure that asylum applications are processed in expedite proceedings, while at the same time thwarting all attempts at abusing any of the rights afforded to the migrants, with full respect of the minimum rights of irregular migrants and asylumseekers in accordance with the rules of international law and the applicable standards.
Relevant Conclusions of the National Assembly of the Republic of Serbia are attached hereto in ANNEX II.
71 http://www.zastitnik.rs/attachments/3518_odbor%20pravosudje.pdf.
72 National Assembly Resolution No. 73, adopted in the fourth session of the Second Regular Convocation in 2014 held on 23 October 2014.
73 Report available at http://zastitnik.rs/attachments/3471_IZV%20NPM%202013%20final.pdf.
74 http://www.zastitnik.rs/attachments/3518_odbor%20za%20prava%20deteta.pdf.
75 Report available at http://zastitnik.rs/attachments/3471_IZV%20NPM%202013%20final.pdf.
76
http://www.zastitnik.rs/attachments/3518_odbor%20ljudska%20i%20manjinska.pdf.
5.7. Events and promotion of NPM/Prevention of Torture
With the aim of promoting and protecting the rights of persons deprived of liberty and prevention of torture, in 2014 NPM representatives took part in numerous conferences, round tables and workshops. Deputy Protector of Citizens, who is in charge of rights of persons deprived of liberty, held several lectures for students at the Faculty of Law and issued about 30 press releases in connection with prohibition of abuse and improvements in the field of prevention of torture.
In February 2014, the Protector of Citizens, the Ministry of Internal Affairs and the Belgrade Centre for Human Rights held a press conference titled "Challenges faced by the Republic of Serbia in the Field of Asylum and Migrations." In March 2014, NPM representatives took part in the conference "Situation in the Field of Mental Health and Measures taken in the Deinstitutionalisation Process", organised by the Helsinki Committee for Human Rights and the International Assistance Network. On the UN International Day in Support of Victims of Torture, the 26th of June, the Committee of the Lawyers' Committee for Human Rights organised a press conference titled "The Role of Health Care Services in the Prevention of and Punishment for Torture", in which the Deputy Protector of Citizens in charge of this field and a representative of the NPM presented the health care situation in prisons. In September 2014, Group 484, the Belgrade Centre for Human Rights and the Belgrade Centre for Security Policy held a conference titled "System of Asylum and Migrations", which was addressed by the Deputy Protector of Citizens in charge of this field and a representative of the NPM.
In November 2014, the Protector of Citizens, acting in the capacity of the NPM, together with the OSCE Mission to Serbia and the UNHCR Office held the First South-East OPCAT Forum. The Forum was attended by members of the UN Subcommittee on Prevention of Torture (SPT), representatives of national preventive mechanism of 19 countries, members of the European Committee for the Prevention of Torture (CPT), the Association for the Prevention of Torture (APT) and other international organisations, as well as Serbian representatives of the civil society. A press conference titled "Prevention of Torture and Other Forms of Torture and Fight against Impunity" was held on the following day. In addition to the participants in the Forum, the conference was also attended by representatives of the relevant ministers, as well as courts and prosecution offices.
The NPM's website (http:∕∕npm.rs), available both in Serbian and in English, contains all news, reports of visits and replies of the visited authorities regarding their compliance with the recommendations, as well as information on all other activities undertaken by the Serbian NPM.
5.8. Cooperation with the Subcommittee on Prevention of Torture
In 2014 the Serbian NPM continued cooperation with the Subcommittee on Prevention of Torture. 77
In November 2014, the First South-East OPCAT Forum was also attended by members of the UN Subcommittee on Prevention of Torture, including the Chair of the Subcommittee Mr. Malcolm Evans, as well as members Ms Margaretе Osterfeld, Mr. Viktor Zaharia, Ms Aneta Stancevska, Ms Marija Definis Gojanović and Mr. Miloš Janković.
77 Guidelines of the Subcommittee on Prevention of Torture, sections 39 and 40, available on the Subcommittee's website: http://www2.ohchr.org/english/bodies/cat/opcat/docs/SPT_Guidelines_NPM_en.doc.
5.9. Cooperation with other NPMs
The Serbian NPM has continued cooperating with other NPM's within the framework of the Southeast Europe NPM Network.
In 2014, the Protector of Citizens continued his cooperation with members of the Southeast Europe NPM Network. In May 2014, a representative of the Serbian NPM took part in the Network meeting titled "Methodology of Writing NPM Reports" held in Ljubljana (Slovenia). In October 2014, NPM representatives attended a special training session titled "Monitoring of Psychiatric Institutions in the Context of Protection from Torture and Inhuman and Degrading Treatment" held in Skopje (FYR Macedonia).
In 2014 the Serbian NPM received study visits from representatives of the Georgian NPM, the Public Monitoring Commissions (PMC) of Russia and the Ukrainian NPM. During those study visits, the Serbian NPM presented his work and visited places of detention together with the representatives of these monitoring mechanisms. The Protector of Citizens was also visited by representatives of the NPMs, public authorities and non-governmental organisations of Montenegro and Albania.
In cooperation with the Spanish NPM, the Serbian NPM monitored the repatriation of returnees from the Kingdom of Spain and the Federal Republic of Germany at the "Nikola Tesla" Airport.
The Forum held in November 2014 was attended by members of 19 national preventive mechanisms, including: Azerbaijan, Albania, Austria, Bosnia and Herzegovina, Bulgaria, Greece, Estonia, Lithuania, Hungary, FYR Macedonia, Germany, Poland, Romania, Slovenia, Serbia, France, Croatia, Montenegro and Czech Republic.
5.10. Distribution of NPM's Annual Report
The States Parties to the Optional Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms. 78
The 2013 Annual Report of the NPM has been submitted to the National Assembly, the President of the Republic, the Government of the Republic of Serbia, the Constitutional Court, the Supreme Court of Cassation and the Republic Public Prosecutors' Office.
With the support of the OSCE Mission to Serbia, the Report has been translated into English and published in both Serbian and English. The Report, in the form of a publication in Serbian, has been submitted to the Committees and Commissions of the National Assembly, independent public authorities, line ministries, all correctional facilities, all police administrations, social security institutions, special psychiatric hospitals, university schools and the associations and experts with whom the NPM cooperated in various specialist areas.
The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures. 79
The English version of the Report has been submitted to the UN Subcommittee on Prevention of Torture (SPT), the UN Committee against Torture (CAT), the Council of Europe Office in Belgrade, he European Committee for the Prevention of Torture (CPT), the Association for the
78 Article 23 of the Optional Protocol.
79 Article 22 of the Optional Protocol.
Prevention of Torture (APT) and other relevant international organisations. The Report has also been submitted to other NPMs.
The NPM posts its Annual Reports in Serbian and in English on the NPM's website 80 and on the website of the Protector of Citizens 81 .
6. Background and NPM's Activities by Specific Areas in 2014
There has been no effective fight against impunity for torture in the Republic of Serbia. In the course of 2014, the NPM found multiple instances of irregularities which involved failure to perform medical examination of persons deprived of liberty after the use of force in accordance with the applicable regulations and standards, which is essential for determining whether the use of force was justified, whether the examined person was subjected to mistreatment and, ultimately, how best to provide health care to a person against whom force was used.
In this context, the Administration for Enforcement of Penal Sanctions has complied with the relevant recommendation made by the Protector of Citizens 82 and has undertaken measures to improve the manner in which medical examination of persons deprived of liberty after the use of force is performed, as well as to improve the reporting arrangements in cases of suspected violence against the examined persons.
In addition to strengthening the role of physicians in the fight against impunity for torture, it is also necessary to improve the oversight of placed of detention and to strengthen their internal controls for this purpose. Among other things, the Supervision Unit should be separated from the Administration for Enforcement of Penal Sanctions and attached to the Ministry of Justice as a separate organisational unit 83 ; furthermore, the functioning of internal control mechanisms with regard to the respect for human rights at psychiatric hospital and social welfare homes should also be improved.
An illustrative example of this is a case of torture identified in early 2012 in a recommendation by the Protector of Citizens 84 , which was confirmed in mid-2013 by a judgement of the Constitutional Court. 85 The prison administration has still not found the direct perpetrators and the responsible officers who should have taken take necessary measures to prevent or to timely identify and investigate the mistreatment, but failed to do so. What is worrying is that the prosecutors' office has suspended the investigation and that no judicial proceedings have been initiated, which resulted in a failure to apportion criminal liability in the case where two public authorities previously found that a person deprived of liberty was subjected to torture, inhuman or degrading treatment or punishment. It is obvious that the competent public authorities should step up their fight against impunity for torture. In this context, in addition to prosecutor's offices and courts, internal control mechanisms of public authorities should have an important role in terms of increasing their efficiency.
80 http://ombudsman.npm.rs/index.php?limitstart=28&lang=sr.
81 http://www.zastitnik.rs/attachments/2902_izvestaj_%20NPM_%202012.pdf.
82 Recommendation of 6 October 2014, ref. No. 29004/29006.
83 In its Resolution No. 73 of 23 October 2014, the National Assembly advised the Ministry of Justice to consider the recommendations made by the Protector of Citizens with regard to separation of the Supervision Unit from the Administration for Enforcement of Penal Sanctions and to propose relevant amendments to laws and other regulations in that context.
84 Case No. 12-3630/12.
85
Decision of the Constitutional Court of the Republic of Serbia No. Už-4100/2011.
In Conclusions 73. of the National Assembly of the Republic of Serbia of 23 October 2014 states that "With regard to the assessment of the Protector of Citizens that the competent public authorities fail to comply with their duties in the fight against impunity for torture, that they do not always conduct timely and detailed procedures to determine whether the rights of persons deprived of liberty were violated, that individual responsibility for violation of these rights and responsibility for omissions in work and organisation of work was apportioned to responsible persons only in few cases, as well as that few persons responsible for violation of these rights were punished, and particularly having in mind that the Protector of Citizens and the Constitutional Court identified certain cases of abuse, the National Assembly orders the competent public authorities to fully comply with their duties in the fight against impunity for torture, to take all necessary measures and activities to prevent abuse and, in accordance with the law, to conduct timely and detailed procedures to investigate all substantiated allegations of abuse and apportion subjective and objective responsibility and to punish those responsible."
6.1. Police custody
As part of oversight of treatment of persons brought in by the police and persons placed in police custody, in 2014 the Serbian National Preventive Mechanism visited a total of 19 police stations. The NPM prepared 7 reports of visits to police administrations in 2014, including one report of a visit conducted in late 2013 86 which was submitted to the visited facility and the competent Ministry in early 2014. The reports of the visits contained a total of 120 recommendations. Of those, the competent authorities have complied with 67 recommendations, while 8 recommendations have not been complied with and 45 need to be monitored further.
Similarly as in the past, many of the recommendations given by the Serbian NPM concerned improvements in the conditions of placement in custody cells. Those recommendations that did not require any financial investment have mostly been implemented. On the other hand, those that did require financial investment (reconstruction of rooms, installation of heating, installation of video surveillance etc.) have not been implemented in most cases; instead, the competent services of the Ministry of Interior have been notified of the required adaptation works and their cost. Shortage of funds is the most commonly cited reason for failure to comply with the recommendations.
The NPM has recommended the decommissioning of two custody cells 87 because they do not meet the minimum standards for the placement of persons in police custody; furthermore, the NPM has called for adaptation of certain custody cells 88 and has demanded that the conditions of placement be brought in compliance with the applicable standards. Just as last year, due to a lack of rooms suitable for remanding persons in police custody, it has been observed that persons remanded in custody are often held in police offices 89 or transferred to other police stations, for example in the case of the Police Administration of Vranje, which has only one custody cell situated in the Police Station in Surdulica, although its police stations are dispersed over a wide geographic area. Namely, due to a shortage of custody cells, police officers at the Police Administration of Vranje, the Police Station in Bujanovac, the Police Station in Preševo, the Police Station in Trgovište, the Police Station in Bosilegrad and the Police Station in Vladičin Han transfer all persons they detain to the Police Station in Surdulica or the District Prison in Vranje, which makes their work much more difficult and complicated and increases safety risks both for the persons in police custody and the assigned police officers.
Furthermore, not all of the visited police administrations/stations have dedicated areas where persons who are in police custody for more than 24 hours could spend some time in fresh air.
86 Report of the Visit to the Police Administration of the City of Belgrade, case No. 71-71/13.
87 Custody cells in the Police Station in Kula and the Police Station in Apatin.
88 Rooms in the headquarters of the Police Administration of Novi Pazar, the Police Station in Tutin, the Police Station.
in Sjenica, the Police Station in Surdulica and the headquarters of the Police Administration of Sombor.
89
The Police Station in Mionica and the Police Station in Mali Iđoš.
In a certain number of cases, the NPM has found that reports drawn up by physicians after the use of force against detainees did not contain information on the alleged origin of any bodily harm inflicted on the examined persons or the physician's opinion whether the injuries could have been caused in the manner alleged by the person in police custody. As a rule, such reports also do not state whether the examination was conducted in the presence of police officers. To ensure that the control of justifiability and regularity of any use of force is as impartial and sound as possible, it is necessary to record all relevant and needed information concerning the circumstances in which force was used.
Although the recommendations and reports of the NPM have been calling for amendments to the Instructions on Treatment of Persons brought in by Police and Persons in police Custody 90 , the Ministry of Interior has not undertaken any activities to make them compliant with the positive regulations and applicable standards. Notwithstanding the NPM's recommendation, the Police Administration of Sombor has continued the practice of using handcuffs on all persons who are brought to police stations. It should be noted that, where the use of force is not absolutely necessary, it constitutes a violation of human rights and dignity and should be resorted to only where specific circumstances of the case warrant it, taking into account all objective circumstances.
The NPM is of the opinion that there is no justification for any further delays with regard to amendment of the provisions 91 of the Instructions on Treatment of Persons brought in by Police and Persons in police Custody which provide for mandatory use of handcuffs when transporting persons brought in by the police and mandatory attendance of medical examinations of persons in police custody by police officers. 92
In compliance with the NPM's recommendations, certain positive tendencies have been observed in 2014; namely, certain police stations 93 have improved the conditions in their custody cells and have adapted them to meet the applicable standards. Furthermore, the police officers of the police administrations of Kruševac, Novi Pazar, Vranje and Sombor give all persons in police custody written notice of their rights, while the police officers of certain police stations 94 do not keep medical records on police files and instead provide them to the persons concerned, taking into account the fact that medical records constitute particularly sensitive personal data. In certain police stations 95 , police officers do not attend the medical examinations of persons in police custody. Furthermore, in 2014 police officers have been trained on proper treatment of persons brought in by the police and persons held in police custody. As part of that training, they were also trained to provide first aid, while some police stations 96 have also provided first aid kits.
General recommendations for remedying the identified shortcomings
Custody cells in police stations should be made compliant with applicable standards and the funds required for that purpose should be provided without any further delays. The Instructions on Treatment of Persons brought in by Police and Persons in police Custody should be brought in compliance with the applicable regulations and standards.
90 Instructions on Treatment of Persons brought in by Police and Persons in Custody, 01 No. 7989/12-10 of 10 December 2012.
91 Section 13 paragraph 2 and section 26 paragraph 3.
92 See e.g. judgement of the European Court of Human Rights in Berlinski v. Poland (App. No. 27715/95 and 30209/96), pp. 59.
93 The Police Administration of Kruševac and the Border Police Station at the "Nikola Tesla" Airport
94 Report of the Visit to the Police Administration of the City of Belgrade case No. 71-71/13, Report of the Visit to the Police Administration of Sombor case No. 71–5/14, Report of the Visit to the Police Administration of Valjevo, case No. 71–18/14, Report of the Visit to the Police Administration of Subotica бр, предмета 71– 4/14.
95 Report of the Visit to the Police Administration of Vranje, case No. 71–45/14, Report of the Visit to the Police Administration of Valjevo, case No. 71–18/14, Report of the Visit to the Police Administration of Novi Pazar, case No. 71–57/14.
96
The Police Administration of Novi Pazar, the Police Administration of Valjevo, the Police Administration of Sombor.
Police officers shall not bind all persons brought in police stations; instead, this shall be done only where justified reasons pertain and where strictly necessary, in cases where this is provided by the law.
Police officers shall not attend medical examinations of persons in police custody, unless explicitly asked to do so by the attending physician and only in exceptional circumstances. Police officers shall timely provide physicians with all available information relevant for the physician's decision whether to request that a police officer be present during the medical examination of a person in police custody.
Police stations should provide designated areas where persons who spend more than 24 hours in police custody could spend time in fresh air.
Police officers should receive training on how to use police powers against persons with mental disorders, i.e. it should ensure that police officers act in compliance with the Law on the Protection of Persons with Mental Disabilities.
6.2. Enforcement of pre-trial detention
During the reporting period, the NPM issued a total of 16 recommendations to the visited detention units. Of that number, 7 recommendations have been complied with, while 9 have not.
The Law on Enforcement of Penal Sanctions 97 enacted in 2014 provides for a special form of judicial protection of the rights of persons in pre-trial detention (hereinafter detainees): detainees are allowed to lodge complaints with a penal judge, either orally for the record or in writing. The new Bylaw on Enforcement of Pre-Trial Detention Measures 98 provides in greater detail than the previously applicable bylaw in this field for the manner in which detainees can exercise their right to health care and their right to visits, as well as the remedial procedure available to detainees to protect their rights.
2014 saw the enactment of the new Law on Enforcement of Penal Sanctions 99 , with amended provisions governing the enforcement of pre-trial detention measures, as well as the enactment of the pertinent implementing regulation.
The number of detainees has been declining in recent months and the overcrowding problem at detention units has been alleviated as a result. Presumably, this could be attributed to the effectiveness of the new Code of Criminal Proceedings, which introduced the so-called "prosecutor's investigation"; however, another reason is the attorneys' strike from September 2014 to the second half of January 2015. However, since attorneys refused to appear in court for trials during their strike, courts did not hold hearings of detainees, which prejudiced the right of detained persons arising from the duty of courts to keep the duration of detention as short as possible.
Just as in the previous reporting period, accommodation conditions and other living arrangements in certain detention units did not comply with the applicable regulations and standards, with most detainees not provided with the statutory minimum of eight cubic metres and four square metres in the dormitories. Some rooms in detention units are extremely dilapidated, with unusable sanitation facilities, dirty, unaired, without sufficient natural light and with poor artificial lighting.
97 Official Gazette of RS No. 55/14.
98 Bylaw on Enforcement of Detention Measures, Official Gazette of RS No. 132/14.
Accommodation conditions in certain detention units do not comply with the applicable standards.
Detainees spend the whole day locked up in their cells/dormitories, except during the walking exercise hours. They are not allowed to spend the spare time during the day outside their cells, in communal areas with other detainees, unless they have been segregated from them under court orders. Detainees are in most cases not allowed to work or to participate in social and cultural activities. They also lack sufficient opportunities for physical exercise, especially during inclement weather.
Contrary to applicable standards, detainees are as a rule not allowed to spend the spare time during the day outside their cells, in communal areas with other detainees, unless they have been segregated from them under court orders.
Women in pre-trial detention are placed in the detention units of penal facilities; however, due to their relatively low numbers per detention unit, some of them are in virtual solitary confinement during their pre-trial detention. Thus, what is meant to be a disciplinary punishment for incarcerated persons effectively becomes the only available arrangement for women in detention. In addition, visits to the correctional facilities have revealed a problem with inadequate sanitary packages for women, although this issue has been remedied following the NPM's recommendations.
Compared with the previous reporting period, there have been no major improvements with regard to the conditions of detention and the enjoyment of all rights afforded to detainees, although certain steps in the right direction have been observed. While the issue of assigning detainees to dormitories according to the severity of the criminal offence for which they are indicted is still not sufficiently taken into consideration, some penal and correctional facilities have improved their practice in this regard in compliance with the recommendations made by the Protector of Citizens (e.g. The Penal and Correctional Facility in Šabac). Furthermore, the detention unit of the Penal and Correctional Facility in Šabac places non-smoking detainees in rooms where they would not be exposed to tobacco smoke, if they so request upon their remand.
Most detention units allow detainees to spend minimum two hours a day outside in fresh air; all detention units afford a minimum of one hour in fresh air to the detainees, which is fully compliant with the applicable international standards in this respect 100 .
100 The Law on Enforcement of Penal Sanctions provides that incarcerated persons must be allowed to spend minimum two hours of their spare time in fresh air, while the applicable international standards provide for minimum one hour in fresh air.
General recommendations for remedying the identified shortcomings
The inadequately equipped detention units should be upgraded and made compliant with the applicable regulations and standards.
The Administration for Enforcement of Penal Sanctions should take the necessary activities to amend the Bylaw on Enforcement of Detention Measures, which would contain detailed provisions to allow detainees to spend the spare time during the day outside their cells, in communal areas with other detainees, unless they have been segregated from them under court orders and to allow detainees to work and to participate in social and cultural activities.
Detainees should be allowed to work and to participate in social and cultural activities.
The necessary activities should be undertaken to ensure that female detainees are not placed in de facto solitary confinement due to their low numbers.
When assigning detainees to dormitories, the severity of the crime for which they are indicted should be taken into account.
Detainees with severe disabilities in detention units should be provided with appropriate accommodation, treatment and rehabilitation.
6.3. Enforcement of penal sanctions
In the course of 2014, the NPM conducted two scheduled visits to penal and correctional facilities and a visit to the Juvenile Correctional Facility in Kruševac. In early 2014, a Report with Recommendations was issued to the Juvenile Penal and Correctional Facility in Valjevo, which pertained to a visit conducted in late 2013. The said reports contained a total of 114 recommendations. Of that number, the competent authorities have implemented 51 recommendations, 25 need a follow-up, while 38 recommendations have not been implemented.
The Republic of Serbia has enacted the new Law on Enforcement of Penal Sanctions 101 and its implementing instruments have been enacted, as well as the Law on Enforcement of NonCustodial Sanctions and Measures. 102 The Action Plan on Implementation of the Strategy for Development of the System for Enforcement of Criminal Sanctions in the Republic of Serbia by 2020 103 has also been passed and a network of offices for alternative sanctions has been formed.
Although certain facilities have been upgraded during the reporting period to meet the applicable standards relating to material conditions and other living arrangements, many rooms in penal and correctional facilities remain dilapidated. Large penal and correctional facilities ("Zabela" in Požarevac and facilities in Sremska Mitrovica and Niš) remain overcrowded.
Accommodation conditions and other living arrangements for convicts and persons charged with misdemeanours at certain prison facilities still do not comply with the applicable standards.
There is only one penal and correctional facility for incarcerated women and one juvenile correctional facility for the incarceration and correctional commitment of juvenile offenders. The fact that there is only one institution where juveniles are incarcerated and one where they are placed in the juvenile corrections system (in Valjevo and Krusevac respectively), both of which are overpopulated, creates fertile ground for informal systems which undermine the effects of correctional sessions. This also prejudices the principle that persons should serve their sentences as close to their place of residence as possible, thus making regular contact with family members and close persons more difficult. The principle of incarceration as close to the place of residence
101 Official Gazette of RS No. 55/14.
102 Official Gazette of RS No. 55/14.
103
Resolution the Government 05 No. 021-8527/14 of 7 August 2014.
as possible is also violated in the case of female inmates, because all of them are placed in the Penal and Correctional Institution for Women in Požarevac.
In spite of a major step forward in terms of occupational engagement of inmates, many of them are still without work. The number of employees who work on training and occupational engagement of inmates and the number of trainers at the Training and Occupational Engagement Department does not meet the occupational needs of convicts and persons found guilty of misdemeanours.
Active individual and collective correctional work of corrections officers with convicts needs to be further intensified. There is a need to improve the system of subsequent reassignment of inmates in order to provide possibilities for transfers to better correctional groups as a reward for good behaviour, in order to reduce the currently high number of inmates who are released directly from closed wards of the correctional facilities.
The programmes designed to provide social support and assistance to convicts after their release from the facilities remain perfunctory and convicts are largely left to their own devices once they are released back into the community, which increases the risk of their reoffending, as they are ill-prepared for life outside of prison. In this context, in the coming month and years we expect to see improvements as a result of implementation of the Law on Enforcement of Non-Custodial Sanctions and Measures and operation of the newly-formed custodial offices.
Certain penal facilities (e.g. "Zabela" in Požarevac) lack corrections officers they need for proper correctional treatment of inmates, in particular for individual and group sessions with the inmates, which hinders functional and reward-based assignment of inmates to specific groups and the award of extended privileges to them.
It has been found that many persons serving prison sentences are not able to spend their spare time during the day outside the dormitories, in communal areas with other inmates. 104
Numerous shortcomings persist in the provision of health care to persons serving prison sentences. Most of the recommendations related to irregularities that had been observed in other facilities in the past 105 . Medical examinations upon admission to a prison facility are mostly superficial and do not follow a uniform protocol. This is primarily due to the lack of medical staff, especially physicians – both general practitioners and specialists in psychiatry. The lack of physicians at the Special Prison Hospital in Belgrade is particularly worrying. There are also shortcomings in the administration of medicines and treatment. At many facilities, these are administered by non-medical staff. Moreover, non-medical staff often attends medical examinations even when this is not demanded by a health care professional, which violates the inmates' privacy and the right to confidentiality of their medical information.
Persons serving prison sentences who have severe mental disorders are still placed in regular prison facilities, which are not adequate for their medical and psycho-social treatment.
The Protector of Citizens is of the opinion that these persons should be placed in the Special Prison Hospital or an in-patient health care facility within their respective penal institution (which should have the capacity for their treatment), or in some other appropriate medical institution.
Certain improvements have been made in the situation of persons deprived of liberty at the visited facilities as a result of the recommendations made by the Protector of Citizens.
The facility in Šabac has hired another lawyer to provide professional legal assistance to an inmate who is subject to disciplinary proceedings. Measures have been undertaken to provide a
104 Report of the Visit to the Penal and Correctional Facility in Šabac, No. 71-23/14, and Report of the Visit to the District Prison in Novi Sad, No. 71-77/14.
105
Annual NPM reports for 2012 and 2013.
suitable room for searches, where persons would be searched with full respect for their privacy and dignity. The facility has put in place measures to enable persons placed in closed units to take examinations outside of the facility. In the absence of a dental surgery, the facility has arranged for dental services to be provided to its inmates at the Medical Centre of Šabac. The food served to inmates is now more varied.
Acting in compliance with the NPM's recommendations, the District Prison in Novi Sad now allows the convicts placed in the closed ward to receive visits once every two months in a designated room. The room is equipped and adapted for receiving visits by persons close to inmates. Overall, the number of disciplinary proceedings, which used to be institutes for even the slightest breaches of discipline, has been reduced. The recommendation to photograph all injuries sustained by persons deprived of liberty – both those sustained during extraordinary events and those that could be the result of the use of force – has been complied with. This has afforded persons deprived of liberty the same level of protection in cases where their right to bodily integrity is jeopardised by the use of excessive force.
Juvenile Correctional Facility in Kruševac
In June 2014, the NPM's team visited the Juvenile Correctional Facility in Kruševac. The Facility was issued 30 recommendations for eliminating the identified shortcomings, of which 13 have been implemented, while 17 have not.
The Juvenile Correctional Facility in Kruševac is the only facility in the Republic of Serbia where juvenile corrections are enforced. As already explained, the fundamental issue is the fact that the Facility is the only institution of its kind in Serbia, which means it is constantly overcrowded and this creates fertile ground for informal systems which undermine the effects of correctional sessions. This also prejudices the principle that persons should serve their sentences as close to their place of residence as possible, thus making regular contact with family members and close persons more difficult.
In the course of 2013, the Facility commissioned eight new pavilions in two complexes. However, the intensive work unit, the open unit, the intake unit and the corrections unit are in a state of disrepair. Due to a lack of funding, the Facility has been unable to renovate those units and to provide a designated room for visits by persons close to the inmates.
One of the recommendations made by the Protector of Citizens was to provide adequate intensive, varied and comprehensive correctional sessions. Namely, juvenile offenders placed in the juvenile correctional facility are not provided with intensive, varied and comprehensive correctional sessions suited to the wards' developmental needs, with multiple educational activities and programmes aimed at correcting offending behaviour. Furthermore, due to a shortage of corrections officers, the correctional groups tend to be too large, which makes sound correctional work with the wards all the more difficult.
A particularly grave concern was the inability to provide proper educational and correctional sessions to inmates at the Intensive Correctional Treatment Department (a separate unit outside the perimeter of the Facility, surrounded by high walls) due to poor conditions of accommodation, the lack of educational and cultural material and insufficient number of corrections officers. It has also been found that the originally designed corrections programme for the wards of this Department is not revised on a regular basis.
An analysis of the medical documentation relating to two cases in which the use of force was involved and direct examinations of the wards by a forensic medicine expert of the NPM team revealed that bodily harm was not described in detail in the medical sheets of the wards concerned relating to the initial and follow-up medical examinations conducted after the use of force. From the identified difference in the number, pattern and localisation of injuries caused to those persons it could be concluded that the medical examinations had not been done thoroughly and that the relevant sheets in the medical documentation did not list all existing injuries. Furthermore, the number, scope, localisation, pattern and nature of the injuries sustained by the wards seemed to indicate that the force used on them had been disproportionate and was not intended to subdue them, but to intentionally cause them pain. Accordingly, the NPM recommended that the physician of the Facility should describe all injuries in detail, regardless of the circumstances in which they were sustained, and that the warden of the Facility should undertake measures without delay to ensure that each case in which use of force is involved can be analysed on the basis of complete medical documentation and to ensure that it can be determined beyond doubt that the minimum amount of force required was used against the wards and the use of force was not an excuse for intentional infliction of pain upon juvenile offenders.
The Facility also complied with the NPM's recommendation in connection with Record of Injuries. Namely, the NPM recommended that the existing Record of Injuries should include both the allegations made by the examined person concerning the origin of the injuries and the physician's conclusion on the manner in which the injuries occurred, i.e. The physician's medical opinion whether the injuries could have occurred in the manner alleged by the injured person. Furthermore, the Facility introduced the practice whereby its physician makes entries of all instances of bodily harm in dedicated Record of Injuries.
Acting in compliance with the NPM's recommendations, the Facility and the Administration for Enforcement of Penal Sanctions worked together with representatives of the Ministry of Education, Science and Technological Development to ensure that the diplomas issued to the Facility's wards at the end of their vocational training courses at the Facility are recognised as valid and equivalent to the diplomas received from regular VET schools, to enable the Facility's wards to compete in the job market for specific jobs on an equal footing with other members of the community.
General recommendations for remedying the identified shortcomings
The recommendations of the Protector of Citizens which concern improvements in the accommodation arrangements at penal facilities have not been implemented.
Large penal and correctional facilities ("Zabela" in Požarevac and facilities in Sremska Mitrovica and Niš) remain overcrowded.
The Ministry of Justice should undertake measures within its sphere of competence in order to ensure that there is more than one penal and correctional facility for women and more than one penal and correctional facility/juvenile facility where juveniles serve their prison sentences/juvenile corrections sentences.
Many persons serving prison sentences are not able to spend their spare time during the day outside the dormitories, in communal areas with other inmates.
Numerous shortcomings persist in the provision of health care to persons serving prison sentences, primarily due to the lack of medical staff, especially physicians – both general practitioners and specialists in psychiatry. There are also shortcomings in the procurement of medicines and treatment. Moreover, non-medical staff often attends medical examinations even when this is not demanded by a health care professional.
Health care services in penal institutions report to those institutions, i.e. to the Administration for Enforcement of Penal Sanctions, instead of to the Ministry of Health.
Incarcerated persons with mental disorders are still placed in the regular prison system, which is not appropriate for their medical and psychosocial treatment.
Certain penal facilities (e.g. "Zabela" in Požarevac) lack corrections officers they need for proper correctional treatment of inmates, in particular for individual and group sessions with the inmates, which hinders functional and reward-based assignment of inmates to specific groups and the award of extended privileges to them.
In spite of a major step forward in terms of occupational engagement of inmates at penal facilities, many of them are still without work and occupational activities remain insufficient.
There is no appropriate mechanism in place for gradual reintegration of released convicts into the community.
The Supervision Unit has not been separated from the Administration for Enforcement of Penal Sanctions and attached to the Ministry of Justice and Public Administration, which would have enabled it to oversee the work of the Administration as a whole.
6.4. Detention of persons with mental disorders to psychiatric hospitals
In the course of 2014, the NPM visited Special Psychiatric Hospital "Sveti Vracevi" to inspect compliance with earlier recommendations, as well as Special Hospital for Psychiatric Diseases "Dr. Slavoljub Bakalović" in Vršac as part of regular inspection visits. He also issued a Report with Recommendations to Special Hospital for Psychiatric Diseases "Kovin" 106 .
During the visits it was found that courts acted and passed decisions on involuntary commitment in accordance with the Law 107 and within the time limits set by the Law. Hearings are held at the hospital, where the person whose involuntary commitment is decided on gives his/her statement. The patient is required to sign an advice of delivery of the court decision, which advice of delivery is then returned to the court with the patient's signature as proof of his/her receipt of the decision on involuntary confinement 108 .
Certain psychiatric hospitals have done adaptation and renovation work 109 . Toilets are now designed to provide privacy to patients. Hospitals encourage patients to wear their day clothes during the day and hospital rooms and other areas where patients stay (communal areas, halls, dining rooms...) are decorated to create a more humane environment and reflect the specific nature of the patients who use them. Hospitals encourage patients to bring with them their personal belongings and photographs, as well as books and magazines.
However, the rooms in the large psychiatric hospital in Kovin are dilapidated and do not meet the applicable standards 110 . Large rooms, some of them even featuring more than 20 beds, are not conductive to creating a positive therapeutic environment, nor do they give the patients their privacy 111 . Furthermore, hospital rooms and other areas where patients stay (communal areas, halls, dining rooms...) are mostly not decorated to create a more humane environment and reflect the specific nature of the patients who use them.
Psychiatric hospitals hold information sessions for their patients and provide technical support in the organisation and conduct of elections for and operations of the Patients' Council 112 , thus allowing patients to participate in the making of decisions that are important and relevant for their stay and treatment at the hospitals.
Hospitals keep records of the exact time when the physical restraint/binding of a patient began (which is entered immediately upon applying the measure), the exact time when the restraints
106 Visit conducted in December 2013.
107 Law on the Protection of Persons with Mental Disabilities (Official Gazette of RS No. 45/2013).
108 Report of Visit to the Special Psychiatric Hospital "Sveti Vračevi", No. 71-15/14, and Report of Visit to the Special Psychiatric Hospital Kovin, No. 71-73/13.
109 Special Psychiatric Hospital "Sveti Vračevi" Novi Kneževac and Special Psychiatric Hospital "Dr. Slavoljub Bakalović" Vršac.
110 Special Psychiatric Hospital Kovin, No. 71-73/13.
111 Special Psychiatric Hospital Vršac, 71-26/14, and Special Psychiatric Hospital Kovin, No. 71-73/13.
112 Special Psychiatric Hospital Kovin, No. 71-73/13 and Special Psychiatric Hospital "Sveti Vračevi" No. 71-15/14.
are removed (which they enter immediately upon removing the restraints), the reasons for applying this measure, the name of the physician who ordered or approved the measure, a description of any injuries caused to patients or staff and any other relevant circumstances. 113 Patients are not physically restrained in rooms where other, unrestrained patients stay. In accordance with the recommendation of the NPM, physical restraint is performed by binding one limb only.
Hospitals have improved their arrangements for informing patients of their treatment at the hospital and their rights by providing brochures which are distributed to patients and their families and/or guardians immediately upon admission. Patients who are not capable of understanding the brochure are given assistance by appropriate means in order to introduce them to the content of the brochure to the extent that their intellectual capacities allow.
An encouraging development is the organisation of training and professional advancement sessions for the medical staff of the hospitals. However, the staff of psychiatric wards of General Hospitals also needs to undergo training.
The length of patients' stay at hospitals for non-medical reasons in itself constitutes inhuman treatment. As there are no appropriate community-based mental health services that would be capable of caring for patients after their hospital treatment, there is no continuity of care and proper psychosocial rehabilitation is lacking. This can lead to an aggravation of the underlying disorder and may contribute to rapid deterioration of personality.
Cooperation between psychiatric hospitals and centres for social work in connection with community-based care for the patients who have been institutionalised for years, many of them due to social considerations, remains unsatisfactory. Upon examination of several medical histories, we found that hospitals tend to ask centres for social work to arrange for the transfer of such patients to social welfare homes, as the patients allegedly did not have any relatives who were willing to take care of them upon their discharge from the hospital.
With a view to improving the position of patients, it will be necessary to step up the efforts towards introducing community-based mental health care. Support should be provided to the families who are willing to take in the patients upon their discharge. An encouraging development is the plan to open a Community-based Mental Health Care Centre in Kikinda, which would be staffed by physicians of the Special Psychiatric Hospital "Sveti Vračevi".
A crucial issue faced by psychiatric hospitals is the lack of medical staff and occupational therapists. Due to the insufficient human resources, employees are not able to fully meet patients' needs. Hospitals have applied to the Ministry of Health for staff increases on many occasions, but this issue remains unresolved.
Cooperation between psychiatric hospitals and general hospitals is unacceptably poor. General hospitals do not accept clinical evidence for patients referred to them from psychiatric hospitals, even if the conditions are life-threatening. Patients with severe conditions are sometimes sent from general hospitals to special psychiatric hospitals simply because they were once treated in one of those special hospitals, even if their mental health is not a primary consideration at the given moment.
General recommendations for remedying the identified shortcomings
The Ministry of Health should without any further delay implement all necessary activities aimed at rationalization of services in secondary and tertiary psychiatric institutions, focusing on day hospitals and out-patient treatment and should initiate intensive activities on the introduction of the services of community-based mental health protection.
113
Special Psychiatric Hospital Kovin, No. 71-73/13, and Special Psychiatric Hospital "Sveti Vračevi", No. 71-15/14.
The Ministry of Health should put in place measures within its sphere of competence to amend the Law on the Protection of Persons with Mental Disabilities, including the provisions governing voluntary and involuntary hospitalisation procedures, the role of police in relation to persons with mental disorders, the use of physical restraint and in particular solitary confinement of patients. Once the Law has been amended, it will be necessary to work on amendments to the Bylaw on Detailed Conditions for Use of Physical Restraint and Solitary Confinement of Persons with Mental Disorders Hospitalized for Treatment in Psychiatric Institutions.
The Ministry of Health should put in place measures to adapt the accommodation capacities of the Social Psychiatric Hospital "Kovin."
6.5. Detention of persons to social welfare homes
In 2014, the Serbian NPM visited a total of 5 social welfare homes. The NPM compiled three reports 114 of the visits conducted in 2014 and one report 115 of a visit conducted in 2013. Based on the Report of Visit to the Residential Institution "Veternik" of 2013, the NPM prepared 3 systemic recommendations 116 which were sent to the Ministry of Labour, Employment, Veteran and Social Affairs and the Provincial Secretariat of Health, Social Policy and Demographics in 2014.
Through the reports of the visits, the competent authorities were issued a total of 49 recommendations. Of that number, the competent authorities have implemented 24 recommendations, 2 recommendations have not been implemented, 15 recommendations require follow-up activities, while in 8 cases the addressed authorities have not yet responded to the recommendations.
During the reporting period, the NPM has not observed any improvements in the care for persons placed in social welfare homes or any major advancements towards deinstitutionalisation. Large social welfare homes still have users whose sole reason for being placed there is the lack of community-based care and the absence of support to their families and guardians in their care for these persons. Apart from being unsuitable for the placement of beneficiaries, the existing social welfare homes lack staff, including in particular physicians, pedagogues and care-givers; also, there have been no visible efforts to bring the number of beneficiaries placed in such institutions down to the maximum allowed under the statute.
With the aim of removing most of the users from the Social Welfare Homes, bringing their number in line with the statutory maximum, providing for separate accommodation of children and adults and facilitation of community-based care for the users, in 2014 the NPM prepared recommendations in which he drew the attention of the Ministry of Labour, Employment, Veteran and Social Affairs and the Provincial Secretariat of Health, Social Policy and Demographics to the identified shortcomings in the work of the Residential Institution "Veternik", the need to remove most of the users from the Institution in the next two years and the need to provide community-based support or accommodation, coupled with a reduction in the capacity of the Residential Institution to maximum 50 users, all of whom must be children and youth, in accordance with the relevant regulations and applicable standards.
114Report of Visit to the Residential Care Facility Voždovac and the authority's response available at http://www.zastitnik.rs/index.php/lang-sr/izvestaji/posebnii-izvestaji/3572-2014-11-25-09-17-29, Report of Visit to the Gerontology Centre "Srem" in Ruma and the authority's response available at http://www.zastitnik.rs/index.php/lang-sr/izvestaji/posebnii-izvestaji/3792-2015-04-14-14-18-00, Report of Visit to the Gerontology Centre in Šabac case No. 71 –81/14.
115Report of Visit to the Residential Care Facility "Veternik" and the authority's response available at http://www.zastitnik.rs/index.php/lang-sr/izvestaji/posebnii-izvestaji/3360-2014-06-19-13-00-21.
116Recommendations issued to the Residential Care Facility "Veternik" No. 75-54/14 available at http://www.zastitnik.rs/index.php/lang-sr/2012-02-07-14-03-33/3418-2014-08-01-11-28-35.
A particular concern is the fact that many children are also placed at social welfare homes 117 ; also, some persons placed in social welfare homes have restricted freedom of movement (they are locked up) and many of them are occasionally physically restrained (bound) without proper legal grounds or applicable procedures.
Competent authorities do not act in compliance with international regulations and standards, including in particular the Convention on the Rights of Persons with Disabilities. Serbia, as a state party, has a duty to grant all persons with disabilities the right to social inclusion and the freedom to make their own choices. It also has a duty to put in place effective and appropriate measures to facilitate the exercise of this right by persons with disabilities and their full and effective participation and inclusion in the community. Based on the current state of affairs, it would seem that the government has not taken an active role to ensure the inclusion of persons with disabilities in community life.
The Ministry of Labour, Employment, Veteran and Social Affairs has not fully cooperated with the National Preventive Mechanism and has not taken the necessary measures to remedy the identified shortcomings pursuant to the recommendations given to it.
Based on the reports of visits to social welfare homes for the elderly, the NPM has found that, in addition to the issues concerning the staff structure, ranging from a shortage of staff to medical staff that is untrained to deal with dependent and semi-dependent users, there were also issues involved in the provision of treatment activities to such users and with taking dependent and semi-dependent users out for fresh air. Namely, due to the shortage of staff, dependent and semidependent users often spend most of the day in their rooms and, since the staff does not receive any education, training or seminars, the treatment services for dependent users tend to be less varied. The accommodation conditions for dependent and semi-dependent users tend to be worse than those of independent users. They are placed in rooms with multiple beds 118 , with no screens provided, which violates their right to privacy, as they are often in full view of other users when changing, grooming etc.; also, they are not provided with overhead handrails. SOS alarms in the rooms of dependent and semi-dependent users are either out of order or broken, which effectively prevents these users from alerting the staff in the event of an emergency. It has been found that the social welfare homes keep no records of submitted applications, complaints and appeals and have no procedures in place for their handling.
The social welfare homes for the elderly have mostly complied with the NPM's recommendations for improving the status of their users. Namely, they have undertaken measures to make the SOS alarm systems functional, overhead handrails have been provided and screens have been installed to protect users' privacy. Furthermore, plans have been made to train the staff involved in the work with users and records of submitted applications, complaints and appeals have been formed.
General recommendations for remedying the identified shortcomings
It is necessary to commence with the activities recommended in the Conclusions of the Committee on the Rights of the Child of the National Assembly and step up efforts towards comprehensive deinstitutionalization, i.e. reduction of capacities and closing of the existing social welfare homes, as well as on community-based care for persons with intellectual and mental problems.
It is necessary to commence with the activities recommended in the Conclusions of the Committee on the Rights of the Child of the National Assembly and undertake available measures and activities to ensure that social security institutions discontinue the practice of placing children with mental and/or intellectual difficulties in solitary confinement.
117At the time of the visit, 96 users were aged between 6 and 18. 118 Report of Visit to the Gerontology Centre "Srem" in Ruma and Report of Visit to the Gerontology Centre Šabac.
Social welfare homes should discontinue the practice of placing users in solitary confinement.
It is necessary to pass regulations that would govern the conditions and procedure for restricting the freedom of movement and using physical restraints on users in social welfare homes.
Measures should be put in place to provide a sufficient number of staff (physicians, pedagogues and caregivers) in social welfare homes.
It is necessary to ensure that children are placed separately from adults at social welfare homes.
The number of users placed in social welfare homes should not exceed the maximum capacity set by the law.
6.6. Treatment of refugees/migrants
In the course of 2014, the NPM focused on the position of asylum-seekers in the Republic of Serbia. In this context, the NPM had intensive cooperation with the UNHCR Office and the Belgrade Centre for Human Rights. The Protector of Citizens, acting in the capacity of the National Preventive Mechanism, issued 27 recommendations 119 to the Ministry of Interior and the Commissariat for Refugees and Migration in February 2014 in connection with improvements in the treatment of irregular migrants/asylum seekers in the Republic of Serbia. In the course of 2014, the NPM monitored compliance with these recommendations through visits to relevant authorities and institutions. 120 The NPM issued 30 reports 121 to the visited institutions which took stock of the current level of compliance of the competent authorities with the recommendations, followed by a special report 122 which summed up the findings regarding compliance with the recommendations issued by the NPM.
According to the figures of the Ministry of Internal Affairs, in 2014 there were 23,429 foreign nationals who illegally entered the territory of the Republic of Serbia. Of them, 16,730 expressed intent to seek asylum and 1350 of those have been registered, 460 have been issued with identity cards and 388 have applied for asylum. Asylum was granted to only one person, while five persons received subsidiary protection.
The huge discrepancy between the number of persons who expressed intent to seek asylum and the number of persons who actually applied for asylum, especially those who took part in proceedings pursuant to asylum applications, shows their aim never was to seek asylum in the first place; instead, they looked for opportunities to be given shelter at asylum centres and to legalise their stay in the Republic of Serbia until they have made arrangements to move on across the border to Western European Countries.
119 Recommendation No. 75-6/14 available at http://www.ombudsman.rs/index.php/lang-sr/2012-02-07-14-0333/3190-2014-02-14-08-47-05.
120 A total of 41 institutions were visited (police administrations/stations, regional border police centres, centres for accommodation of asylum-seekers, penal institutions, juvenile correctional facilities and the Shelter for Foreigners in Padinska Skela).
121 Reports of visits available at http://ombudsman.npm.rs/index.php?option=com_content&view=category&layout=blog&id=89&Itemid=82& lang=sr.
122 Report available at http://www.zastitnik.rs/index.php/lang-sr/izvestaji/posebnii-izvestaji/3754-2015-03-24-1207-14.
Persons who express intent to seek asylum tend to stay in the territory of the Republic of Serbia between several days and several weeks, until they make arrangements to cross the national border of the Republic of Serbia.
Through the reports on compliance with the recommendations, the NPM has identified certain improvements in the treatment of migrants/asylum-seekers in the Republic of Serbia. First of all, in accordance with the relevant recommendations, an Asylum Office has been formed and staffed with much more employees than the formed Asylum Department. The Ministry of Interior has stepped up its efforts to identify and register foreign nationals found in the territory of the Republic of Serbia. The Commissariat for Refugees and Migration has ended the practice of issuing certificates of temporary absence to asylum-seekers. Also, as from September 2014, duty police officers have been present at asylum centres on a daily basis and have been reporting regularly to the Border Police Administration on the remaining available beds at the asylum centres. The Border Police Administration forwards this information to police stations, which then refer persons who expressed intent to seek asylum to those asylum centres where beds are available. The asylum centres have increased their intake capacities by about 760 persons in total.
However, notwithstanding these improvements, there are still certain shortcomings, both in terms of Serbia's national security and in terms of respect for the rights of asylum-seekers/ migrants. First of all, the competent authorities the Republic of Serbia have not adequately established direct and effective control of foreign nationals in the process of migration through the territory of the Republic of Serbia, so that some of the foreigners found in the country remain invisible to the system, while some of them leave Serbia before the asylum application procedure has even been initiated. As regards the provision of information on the rights and obligations of foreign nationals found in Serbia during their stay in the country, the Ministry of Interior has still not prepared brochures on the rights and obligations of those persons in languages they understand. Communication between foreigners found in Serbia and police officers is mostly conducted in English, with the occasional involvement of interpreters for Arabic, Turkish and English 123 .
Certain shortcomings have been identified in the medical examinations performed at the asylum centres, ranging from incomplete examination at some asylum centres 124 , through unavailability of any form of medical examination 125 to examinations that are performed only on certain days during a week 126 . The Shelter for Foreigners 127 offers no medical examination upon admission at all; instead, examinations are performed only when the Shelter staff determines that a foreign national has visible injuries or health issues. Migrants punished for misdemeanours are not allowed phone calls to their country of origin order to inform a person of their choice of their incarceration and certain prisons notify the diplomatic and consular missions of the person's country of origin of their incarceration without his/her consent.
General recommendations for remedying the identified shortcomings
The system for managing migrations should be improved by providing comprehensive and consistent application of the existing standards in the field of asylum and migrations.
It is necessary to improve effective implementation of the asylum procedure, from registration of foreign nationals who wish to seek asylum in the Republic of Serbia, through issuing of identity cards, filing of asylum applications and hearings to passing of decisions to grant/deny asylum.
123 Reports of visits the Police Administration of Vranje, No. 71 –46/14, and the Police Administration of Subotica No. 71–67/14.
124 Report of Visit to the Asylum Centre in Sjenica, No. 71–62/14.
125 Reports of Visits to the Asylum Centre in Tutin, No. 71–61/14, and ЦА in Sjenica, No. 71–62/14.
126 Reports of visits to the Asylum Centre in Banja Koviljača No. 71 –52/14; the Asylum Centre in Bogovađa, No. 71 – 90/14; and the Asylum Centre in Krnjača, No. 71 – 85/14.
127
Report of Visit to the Shelter for Foreigners No. 71 – 84/14.
Medical examinations at the Shelter for Foreigners and at all asylum centres should be performed in accordance with the applicable regulations and standards (including timely examination immediately upon admission).
Brochures on the rights and obligations of foreign nationals found in Serbia should be provided to them in languages they can understand.
Ensure that certificates of intent to apply for asylum include a photograph of the asylum-seeker.
Enable irregular migrants punished for misdemeanours are not allowed phone calls to their country of origin and discontinue the practice of notifying the diplomatic and consular missions of the person's country of origin without his/her consent.
6.7. Reception of repatriated persons in the readmission process
In the course of 2014, the NPM made three visits to the "Nikola Tesla" Airport for the purpose of finding facts on the treatment of persons repatriated to the Republic of Serbia pursuant to decisions of competent authorities of countries with which Serbia has readmission agreements. One such repatriation operation under a readmission agreement was monitored jointly with the Spanish NPM, which monitored the deportation process up to the moment when the repatriated persons were remanded to the custody of the Border Police of the Republic of Serbia.
During the visits it was found that police officers waited for groups of repatriated persons immediately upon landing and introduced them to their rights and the procedure for exercising those rights in a language they understand. If necessary, emergency medical care is provided on the spot. After that the persons are interviewed at the Readmission Office of the Commissariat for Refugees and Migrations. The interviewing officers record basic personal and medical data of the repatriated persons, subject to their consent, and provide them with information on the readmission process and their rights and obligations; they also complete questionnaires relating to their specific needs, which serve as the basis for future assistance provided to them, thus facilitating their reintegration. They are allowed to make phone calls to their relatives and friends and advised to contact the Commissariat for Migrations and other services at the local level for further assistance. If they have no money for the fare to their place of residence, they are provided with transportation.
Repatriated persons who have no family or any other kind of support or accommodation in Serbia are sent to emergency shelters in Šabac, Bela Palanka and Zaječar. Those shelters provide them with bed and meals for up to 14 days.
All officials at the "Nikola Tesla" Airport (officers of the Border Police Station and the Readmission Office of the Commissariat for Refugees and Migrations) have complied with their statutory duty to cooperate with the NPM and have provided all requested information. No instances of mistreatment of persons repatriated in the readmission process have been recorded.
ANNEX I
NPM's Recommendations to Serbian Government Authorities
I/I Part One
Recommendations made in 2014 in the Reports of Visits conducted in late 2013
1. Police Administration of Belgrade and the police stations it comprises
2. Juvenile Penal and Correctional Facility in Valjevo
3. "Veternik" Residential Centre for Children and Youth with Developmental Problems
4. Special Psychiatric Hospital in Kovin
5. Ministry of Interior and Commissariat for Refugees and Migrations / Asylum-seekers
I/II Part Two
Recommendations made in 2014 in the Reports of Visits conducted in 2014
1. Border Police Administration ("Nikola Tesla" Airport)
2. Police Administration of Kruševac (night visit)
3. Police Administration of Novi Pazar and the police stations it comprises
4. Police Administration of Subotica and the police stations it comprises
5. Police Administration of Valjevo and the police stations it comprises
6. Police Administration of Vranje and the police stations it comprises
7. Police Administration of Sombor and the police stations it comprises
8. Penal and Correctional Facility in Šabac
9. District Prison in Novi Sad
10. Juvenile Correctional Facility in Kruševac
11. Social Welfare Homes for the Elderly Voždovac
12. Gerontology Centre "Srem" in Ruma
I/III Part Three
Recommendations made in 2015 in the Report of a Visit conducted in 2014
1. Gerontology Centre in Šabac
I/I Part One
– Recommendations made in 2014 in the Reports of Visits conducted in late 2013
I/I - 1 Police Administration of the City of Belgrade and the police stations it comprises 128:
Written notice of the rights of persons remanded in custody shall be given whenever persons are remanded in custody on any grounds (Code of Criminal Procedure, Law on Police, Law on Misdemeanours and Law on Road Safety).
The Ministry of Interior shall amend the existing Instructions on Treatment of Persons brought in by Police and Persons in Custody and bring them in compliance with the relevant standards of the Council of Europe by stipulating that police officers are not allowed to be present during medical examination of persons deprived of liberty, unless explicitly asked to do so by the attending physician. Police officers shall be present during medical examination only at the explicit request of a physician, which fact shall be recorded in an official note.
The documentation/case files compiled in connection with the deprivation of liberty or remanding in custody cannot contain medical records of the person created in connection with the medical examination of the person concerned after the passing of a decision to remand the person in police custody or in the period immediately preceding the passing of such decision. If a medical doctor or another health care professional who examines a person remanded in custody under a relevant decision or who attends to such person in other ways believes it is in the best medical interest of the patient/person remanded in custody to provide a police officer with certain information and/or instructions, i.e. medical data (e.g. if medicines must be administered at specific intervals, if special handling is required etc.), the medical doctor or another health care professional shall provide such information and/or instructions to the police officer in charge. The police officer in charge shall make an official note of the information thus received without delay, which information shall be included in that person's custody files.
The Police Station in Zvezdara shall provide persons remanded in custody without delay with a decision or order to remand them in custody, as well as all other relevant documentation (notice of the person's rights, receipt for confiscated items, medical report etc.) and persons remanded in custody shall be allowed to keep this documentation on their person while they are remanded in custody.
The Police Station in Stari grad shall create a custody report on the standard form also for any persons remanded in custody under the Code of Criminal Procedure and the Law on Road Safety and all custody reports shall be made available to the persons remanded in custody, who shall sign such reports; alternatively, if a person in custody refuses to sign a report, a note to that effect shall be included in the report.
The Ministry of Interior shall amend the Instructions on Treatment of Persons brought in by Police and Persons in Custody by stipulating that binding is to be applied only when strictly necessary, rather than whenever a person in custody is transported, as is currently the case.
At the Police Administration of the City of Belgrade, police officers shall not use handcuffs on every person brought in by police vehicles; instead, this shall be done only when justified reasons pertain, in the cases provided for by the law.
128 Report of the Visit to the Police Administration of the City of Belgrade, 71-71/13.
At the Police Station in Stari grad, receipts for the temporarily confiscated and returned items shall be signed by the persons in custody from whom such items have been confiscated.
The Police Administration of Belgrade shall undertake appropriate measures to ensure adequate airing of custody cells.
The Police Station in Savski venac shall undertake appropriate measures to ensure custody cells are sufficiently aired and lit. Furthermore, heating shall be installed in these rooms. The Police Station in Savski venac shall whitewash its custody cells for sanitation purposes and shall maintain them in a proper sanitary condition in the future.
The Police Station in Stari grad shall undertake appropriate measures to ensure custody cells are sufficiently aired and lit. The Police Station in Stari grad shall whitewash its custody cells for sanitation purposes and shall maintain them in a proper sanitary condition in the future.
The Police Station in Stari grad shall install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Zvezdara shall undertake appropriate measures to ensure its custody cell is sufficiently lit. Furthermore, heating shall be installed in this room.
The Police Station in Zvezdara shall install buttons for alarming the police officer on duty in its custody cell.
The Police Station in Palilula shall undertake appropriate measures to ensure its custody cells are sufficiently lit and heated.
The Police Station in Palilula shall install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Mladenovac shall undertake appropriate measures to ensure its custody cells are sufficiently lit. The Police Station in Mladenovac shall whitewash its custody cells for sanitation purposes and shall maintain them in a proper sanitary condition in the future.
The existing custody cell in the Police Station in Sopot shall no longer be used for holding persons in custody. The Police Station in Sopot shall provide a separate custody cell which is compliant with the applicable standards.
The Police Station in Novi Beograd shall undertake appropriate measures to ensure its custody cells are sufficiently lit and heated. The Police Station in Novi Beograd shall whitewash its custody cells for sanitation purposes and shall maintain them in a proper sanitary condition in the future. The Police Station in Novi Beograd shall provide clean and dry sanitation facilities with proper sanitation equipment by making the necessary adaptations to the existing toilet.
The Police Station in Grocka shall undertake appropriate measures to ensure custody cells are sufficiently aired and lit. The Police Station in Grocka shall whitewash its custody cells for sanitation purposes and shall maintain them in a proper sanitary condition in the future; it shall also maintain its sanitation facilities in a sanitary condition.
The Police Station in Grocka shall install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Rakovica shall undertake appropriate measures to ensure that custody cells have sufficient lighting, that they are safe for reading without causing visual impairments; it shall also ensure the cells are well-aired and shall install heating. The Police Station in Rakovica shall whitewash its rooms for sanitation purposes and shall maintain them in a proper sanitary condition in the future.
Toilets at the Police Station in Rakovica used by persons remanded in custody should be refurbished and maintained in a sanitary condition.
The Police Station in Vračar shall improve natural and artificial lighting of its custody cells to make them sufficiently lit and safe for reading without causing visual impairments and shall provide sufficient inflow of fresh air.
The Police Station in Vračar shall install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Voždovac shall undertake appropriate measures to ensure its custody cells are sufficiently lit and aired. The Police Station in Voždovac shall install heating in its custody cells.
The Police Station in Voždovac shall install buttons for alarming the police officer on duty in its custody cells.
The existing custody cells in the Police Station in Barajevo shall no longer be used for holding persons in custody. The Police Station in Barajevo shall provide custody cells which are compliant with the applicable standards.
The Police Station in Obrenovac shall undertake appropriate measures to ensure that custody cells have sufficient natural and artificial lighting and that they are well-aired and heated.
The Police Station in Obrenovac shall whitewash its rooms for sanitation purposes and shall maintain them in a proper sanitary condition in the future.
The Police Station in Obrenovac shall install buttons for alarming the police officer on duty in its custody cells.
The rooms used for interrogation should be emptied of all items that are not part of standard office supplies.
The Police Administration of the City of Belgrade shall undertake appropriate measures and provide a designated area where persons remanded in custody could spend some time in fresh air.
The Police Administration of the City of Belgrade and the police stations it comprises shall improve the fire protection system by visibly placing an evacuation plan and instructions for action in the event of a fire in every police station, with the aim of protecting the physical integrity of persons remanded in custody.
The Police Administration of the City of Belgrade and the police stations it comprises shall arrange for and implement appropriate first aid training for police officers and shall equip the premises with the required first aid kits.
I/I–2 Juvenile Correctional Facility in Valjevo 129 :
At the Juvenile Correctional Facility in Valjevo, detainees with no prior convictions shall not be placed in the same rooms/dormitories with those who have prior convictions and special care
129
Report of the Visit to the Juvenile Correctional Facility in Valjevo, 71-40/13.
shall be taken to ensure that detainees are assigned to dormitories according to the severity of the criminal offence for which they are indicted.
All officers of the Security Department of the Juvenile Correctional Facility in Valjevo who are in charge of supervising the detainees shall perform their duties in such a way as to cause minimum disturbance to the detainees' eight-hour sleep at night.
The Juvenile Correctional Facility in Valjevo shall regularly replace lightbulbs in all rooms/dormitories.
The Juvenile Correctional Facility in Valjevo shall renovate the sanitation facilities and shower rooms at the "Boarding School" facility to make them fully compliant with the applicable hygienic and sanitary conditions and to protect the privacy of those who use them.
The Juvenile Correctional Facility in Valjevo shall address the issue of dampness and renovate the toilet fixtures within the joint sanitation facilities at the semi-open unit, in accordance with the applicable regulations and standards.
The Juvenile Correctional Facility in Valjevo shall erect canopies in both areas for outdoor walks within the Increased Surveillance Unit to shelter the users who are out for walks from precipitation.
The Juvenile Correctional Facility in Valjevo shall provide sufficient natural lighting in the rooms of the Increased Surveillance Unit where disciplined wards are held and shall furthermore provide adequate artificial lighting.
The Juvenile Correctional Facility in Valjevo shall renovate the toilet fixtures within the joint sanitation facilities and the separate sanitation facilities in the dormitories where wards are placed in solitary confinement in accordance with the applicable regulations and standards.
The Juvenile Correctional Facility in Valjevo shall provide a day room for the wards who are segregated and placed under increased surveillance.
The Juvenile Correctional Facility in Valjevo shall dry all dampness from the walls in the dormitories of the Increased Surveillance Unit and shall whitewash the walls for sanitation purposes.
The Increased Surveillance Unit at the Juvenile Correctional Facility in Valjevo shall provide the required space for the placement of inmates so that each inmate in a dormitory has minimum eight cubic metres and four square metres of space at his disposal.
The Juvenile Correctional Facility in Valjevo shall renovate without delay the communal bathroom and the sanitation facilities in the dormitories of the Increased Surveillance Unit to make them fully compliant with the applicable hygienic and sanitary conditions.
The Juvenile Correctional Facility in Valjevo shall whitewash all rooms of the intake unit for sanitation purposes and shall repair the floors.
The Juvenile Correctional Facility in Valjevo shall erect a canopy in the area for outdoor walks within the "Interrogation Jail" to shelter the users who are out for walks from precipitation.
The Juvenile Correctional Facility in Valjevo shall provide an indoor area with exercise equipment for the physical exercise of inmates.
The Juvenile Correctional Facility in Valjevo shall renovate the kitchen and equip it in accordance with the applicable standards.
Reports of disciplinary action which are prepared in the hearings of inmates who are subject to disciplinary action shall specify whether the person concerned was given access to professional assistance.
The Penal and Correctional Facility in Valjevo shall keep separate records of complaints and appeals, which shall include information on the resolution of complaints, the dates when relevant decisions were passed and advice on available legal remedy.
The Juvenile Correctional Facility in Valjevo shall undertake measures without delay to ensure better video surveillance coverage of the Facility. The Juvenile Correctional Facility in Valjevo shall visibly place a notice of video surveillance in the visiting room.
The Penal and Correctional Facility in Valjevo shall undertake measures without delay to equip the rooms used for placement of persons deprived of liberty with sound alarms to alert the guards in the event of any incidents.
At the Juvenile Correctional Facility in Valjevo, any person against whom force has been used shall be taken for an examination by a physician immediately after the use of force and once again between 12 and 24 hours after the use of force. The Facility must keep records of examinations by physicians, with details of the exact time of such examination.
The Correctional Work Department at the Juvenile Correctional Facility in Valjevo is in need of an internal reorganisation, which would ensure that the corrections officers, and other staff of that Department as appropriate, become more actively involved in the work with the inmates placed in the Increased Surveillance Unit. It is necessary to define more precisely the duties and tasks of corrections staff in their work with this category of inmates, especially those who are sentenced to juvenile prison.
The Juvenile Correctional Facility in Valjevo shall prepare a practical guidebook for inmates which will reflect the specific nature of the facility itself and the procedures followed by some of its departments in their work, including in particular the Security Department and the Correctional Work. The guidebook shall clearly specify duties and lay down procedures to be followed by the expert team in charge of admission.
The Juvenile Correctional Facility in Valjevo shall make more use of correctional groups as an organisational and methodical form of correctional work with inmates. Accordingly, the Juvenile Correctional Facility in Valjevo shall focus more on the formation of correctional groups, subject to relevant criteria governing the formation of those groups, especially in respect of the population sentenced to juvenile prison.
Placement in the Increased Surveillance Unit for security reasons should not necessarily be an obstacle to modification of the treatment programme; instead, it should be seen as one of the criteria for modification of the treatment programme and the reason for focusing more intensively on this prison population. Procedures should be put in place for a continual review of the course of treatment of these persons.
The Juvenile Correctional Facility in Valjevo shall, within its means and obligations and taking into account the specific needs of inmates, especially those sentenced to juvenile prison, focus more on social support and assistance to inmates during and after their incarceration. Individual correctional treatment programmes must be complemented with post-penal social support and assistance. It is not enough to merely call for cooperation and inform external entities of the need for such cooperation; instead, the Facility should begin with the efforts and provide specific services immediately upon admission of inmates at the Facility.
The Juvenile Correctional Facility in Valjevo shall undertake measures to enable all inmates, regardless of the ward they are in, to enjoy their right to secondary education, in accordance with the applicable correctional treatment programme, with special emphasis on persons with special needs, i.e. persons with learning or cognitive disabilities. The Penal and Correctional Facility in Valjevo shall undertake the necessary measures to grant inmates the enjoyment of their right to free secondary education.
The Juvenile Correctional Facility in Valjevo shall undertake the necessary measures to provide inmates at the semi-open unit with a suitable and properly fitted and equipped area where they could spend their spare time.
Detainees placed at the Juvenile Correctional Facility in Valjevo shall be allowed to spend minimum two hours every day in fresh air.
The Juvenile Correctional Facility in Valjevo shall provide an area with exercise devices intended for physical exercise of persons placed in the Increased Surveillance Unit.
The detention unit of the Juvenile Correctional Facility in Valjevo shall provide an area with exercise devices intended for physical exercise of detainees.
The Juvenile Correctional Facility in Valjevo shall allow visits to detainees of minimum one hour, in accordance with the applicable regulations.
The Juvenile Penal and Correctional Facility shall provide rooms adapted to the needs of inmates with disabilities, taking into account the type and severity of their special needs.
The Juvenile Correctional Facility in Valjevo shall procure the services of minimum one psychiatrist by hiring a physician specialised in the relevant field, in order to ensure that a physician specialised in psychiatry (or neuropsychiatry) is present at the Facility minimum twice a week for at least four hours, to provide an integrated approach to health care of the juvenile population through the inclusion of a psychiatrist in the multidisciplinary team.
Ensure that staff in charge of providing health care is validly licensed in accordance with the law by the relevant medical chamber.
Provide the job classification for the Health Care Service at the Facility.
Hire additional staff for health care jobs, including a minimum number of nurses (paramedics) to ensure their presence at the Facility on a 24/7 basis.
The Juvenile Penal and Correctional Facility in Valjevo shall ensure that only medical staff can access the medical documentation kept on the Facility's premises used by the Health Care Service, including personal medical records and other personal data of the patients.
The Facility's physician shall present the warden within one month with written findings and recommendations on ways to improve hygiene at the inpatient clinic of the Facility's Health Care Service and describe the current state of sanitation conditions and facilities, heating, lighting and ventilation at the inpatient clinic.
The existing worn-out mattresses shall be decommissioned and suitable replacements shall be provided.
The Facility shall ensure that bed sheets are changed at statutory intervals, minimum once every 15 days, and shall ensure that bed sheets, underwear and clothes are washed and dried at the Facility's joint laundry room.
The Juvenile Correctional Facility in Valjevo shall immediately implement a smoking ban on the premises of the inpatient clinic of the Facility's Health Care Service in all rooms where patients sleep, as well as in the day room; the smoking ban in those rooms must be clearly indicated by an appropriate sign. A separate smoking room shall be designated and clearly labelled as such.
The Juvenile Correctional Facility in Valjevo shall renovate the sanitation facilities used by persons placed at the inpatient clinic without delay to make them fully compliant with the applicable hygienic and sanitary conditions.
The Juvenile Correctional Facility in Valjevo shall prepare a plan and conduct regular (periodic) examinations of persons deprived of liberty at intervals not longer than three months. Such examinations must, as a minimum, cover all aspects included in the initial medical examination, with any additional measures undertaken as appropriate taking into account the health status of individual inmates. The findings of such regular (periodic) examinations shall be notified in writing to the Facility's warden minimum once a year, or more frequently if necessary due to improved or deteriorated health of an inmate, and in any case whenever any change in an inmate's health status is found. Furthermore, the Facility shall prepare a plan for regular physical examination of juveniles by an appropriate health care institution at least once a year.
At the Juvenile Correctional Facility in Valjevo, the physician shall state the following in written reports of examinations conducted after the use of force: 1) allegations made by the person against whom force was used about the way in which force was used and 2) an opinion whether there is a link between the force used and the injuries sustained.
The Juvenile Correctional Facility in Valjevo shall keep proper records in its book "Visits of the Increased Surveillance Unit" by filling out all fields on the form and by ensuring that each row (each number) contains information on one visited person only.
The Facility shall ensure without delay that inmate with the initials C.U. is referred to a hospital properly equipped and staffed with personnel duly qualified for the treatment of persons with mental disorders, namely the Special Prison Hospital. Retaining persons with undeniably diagnosed mental disorders of a primarily psychotic nature at the Facility, even if they receive therapy prescribed by a specialist, when the Facility lacks suitable equipment and properly trained staff to treat such persons, can be seen as inhuman treatment, especially if it occurs over extended periods of time.
Should any similar cases occur in the future, the Facility will ask the attending psychiatrist to give an opinion after every examination (including initial examination and check-ups) if proper treatment can be provided at the Facility or the patient should be referred to a relevant specialised institution. Furthermore, the Facility shall observe without exceptions any recommendations made by a psychiatrist with regard to the intervals at which check-up examinations have to be performed.
The physician will maintain the Record of Injuries and enter relevant information in the appropriate fields for each patient, ensuring in particular that the following details are provided: 1) allegations of the injured person about the way in which the injuries were sustained and 2) the physician's opinion whether there is a link between the event described by the injured person and the injuries sustained.
The physician shall present the warden with written findings and recommendations on ways to improve hygiene at the Facility and among the inmates and shall describe the current state of sanitation conditions and facilities, heating, lighting and ventilation in the rooms used by inmates.
I/I – 3 -"Veternik" Residential Centre for Children and Youth with Developmental Problems 130 :
It is necessary to promote the development of initial and continual training for professionals and other staff involved in providing care and rehabilitation services.
The Facility will prepare an analysis of the required number of employees and treatment types, draw up a work organisation schedule which will ensure that all users are involved in rehabilitation activities and identify the required training programmes that will promote working with users with severe disabilities.
The bed-ridden users should be provided with adequate living conditions and necessary rehabilitation as soon as possible.
The Facility should remedy the identified shortcomings concerning continual surveillance of the users placed in the "increased surveillance" rooms.
"Increased surveillance" should not be used as a disciplinary measure.
The conditions in the "increased surveillance" rooms have to be improved.
Refrain from placing users in solitary confinement, because solitary confinement of users for any duration constitutes inhuman or degrading treatment and, especially where the conditions of placement are inadequate, may constitute torture.
Restraint should not be used as a disciplinary measure. This is a strictly medical measure and can be ordered only by a physician.
A sufficient number of physicians and other medical staff with relevant specialisations should be provided for the treatment of users.
It is necessary to form a team of experts of various specialisations which would make an individualised rehabilitation plan for each individual user, with various forms of treatment: medical care and treatment, dietary habits and quality of diet, physical therapy, speech correction, correction of sensomotoric disorders (eyesight, hearing), occupational therapy, work therapy, sociotherapy, recreation, hobbies... A rehabilitation plan should be made in writing for every user.
In cases where relevant health care institutions refuse to provide adequate health care outside the Residential Centre, this fact should be communicated to the director of the health care institution concerned and the management of the Residential Centre, who shall then notify the line Ministry of Health and provide relevant medical documentation.
Upon admission, users and their family members should be made aware of the procedures in place at the Facility and their rights. It is also necessary to put in place relevant formal procedures for filing pleas, complaints and appeals against the Facility and its employees, which may be filed by users or their parents/guardians, as well as relevant procedures for their handling. Records should be made of all filed applications, complaints and appeals.
130
Report of Visit to the Residential Centre for Children and Youth with Developmental Problems, 71-26/13.
I/I – 4 - Special Psychiatric Hospital in Kovin 131 :
The dilapidated facilities should be renovated. The existing large rooms should be divided into several smaller ones.
The hospital shall provide fixtures where patients will be able to put their personal belongings in the hospital rooms and in other areas where patients stay (communal areas, halls, dining rooms...) and shall decorate them to create a more humane environment and reflect the specific nature of the patients who use them.
The Hospital shall encourage patients to bring with them their personal belongings: books, magazines and photographs.
The Hospital shall encourage patients to wear their day clothes during the day.
Privacy of patients should be ensured in toilets and bathrooms.
Special Psychiatric Hospital in Kovin shall visibly place written notice of the rights and duties of the Hospital's patients in all wards.
The Hospital shall, within its means, provide brochures to inform patients by appropriate means of their rights and obligations and the hospital rules, which shall be available to patients and their families.
Special Psychiatric Hospital in Kovin shall ensure that consent is sought from the patient or his/her guardian for subsequent introduction of any new medical measure before such measure can be applied.
Special Psychiatric Hospital in Kovin shall notify the president of the competent court of the problems it faces in involuntary commitment and involuntary hospitalisation of persons with mental disorders at the psychiatric institution, in accordance with the provisions of the Law on the Protection of Persons with Mental Disabilities which pertain to the powers of courts in the process of involuntary commitment of persons.
The Hospital shall forward to the Protector of Citizens a copy of its communication without delay.
Special Psychiatric Hospital in Kovin shall notify the authorities in charge of overseeing the work of guardianship authorities in cases where competent centres for social work refuse to cooperate.
Patients at Special Psychiatric Hospital in Kovin shall not be restrained in the same rooms where unrestrained patients stay.
Special Psychiatric Hospital in Kovin shall complete its records of use of restraints by providing the following information: which less restrictive measures had been applied before it was decided to restrain a patient; information on visits to restrained patients by the psychiatrist in charge and by other medical staff; whether the patient's legal representative was informed of the restraining measure and, if so, when; any injuries inflicted on the patients or on hospital staff; and any comments made by the patient.
Individual treatment plans for the Hospital's patients shall be supplemented with all necessary psychosocial rehabilitation programmes, including occupational therapy, group therapy, individual psychotherapy, drama, music and sport activities etc.
131 NPM's Report of the Visit to the Special Psychiatric Hospital in Kovin, No. 71 –73/ 13.
Experts of various profiles and the patients themselves shall be involved in the preparation of treatment plans.
Individual plans should also include a plan of support after discharge. This plan shall be made in writing and insert in the medical record of each patient.
The Hospital shall undertake all available measures to involve patients in an organised fashion in the making of important decisions relevant for their stay and treatment at the Hospital. The Hospital shall hold information sessions for patients and staff and provide technical support in the organisation and conduct of elections for and operations of the Patients’ Council.
In cases where other health care institutions refuse to provide adequate health care, the Hospital shall notify the head of the health care institution, providing relevant medical documentation, and shall alert the Ministry of Health.
The Hospital shall, without delay, conduct an analysis of the current needs for relevant community-based mental health services that could continue caring for patients after their discharge in the geographic area covered by the Hospital.
The Hospital shall submit this analysis to the Ministry of Health, the Provincial Secretariat for Health, Social Policy and Demography and the Protector of Citizens.
It is necessary to involve more patients in social and psychological rehabilitation programmes by assigning them duties and responsibilities, offering them to work at the workshop, providing group sessions and individual interviews etc. Such programmes need to be developed in all wards, especially the closed-type ones. It would be beneficial if the Hospital improved the existing psychosocial and rehabilitation activity programmes and introduced new ones.
In the context of introducing new activities, it is necessary to assess the needs for hiring relevant professionals and providing any additional training in accordance with the plan of developing new activities.
Staff should be more responsive to the patients' opinions and wishes when deciding on the activities in which they would be involved.
The Hospital should consider introducing full-time working hours for Central Occupational Therapy and the day room "Sunny Corner", to enable greater occupational engagement of patients and higher participation in occupational therapy.
The Hospital should develop specific measures that would enable the introduction of physical exercise and other leisure activities at all wards, in ways that are best suited to the patients, their health status and their interests.
The Hospital should involve patients in the process of designing new activities.
The Hospital should make arrangements for the use of suitable visiting rooms.
The Hospital shall, without delay, conduct an analysis of the existing funding system for the
Hospital, which would point to any existing shortcomings and enable patients to fully enjoy their right to treatment and rehabilitation, thus allowing the Hospital to function more efficiently. The Hospital shall submit the analysis to the Ministry of Health, the Provincial Secretariat of Health, Social Policy and Demographics and the Protector of Citizens.
I/I – 5 - Ministry of Interior and Commissariat for Refugees and Migrations / Asylumseekers 132 :
If a foreign national is found in the territory of the Republic of Serbia without documents that can provide proof of identity 133 , if a foreign national has illegally entered the Republic of Serbia 134 or if a foreigner has no evidence that his/her stay in the Republic of Serbia is legal 135 , police officers shall escort him/her to the nearest police station, where his/her identity would be checked and determined 136 , after which the foreign national will be searched for any identity documents and the relevant information would be checked and entered in the statutory records.
A foreign national will be informed in a language he/she can understand of his/her legal status and his/her rights and obligations while staying in the Republic of Serbia.
Where it is likely based on appearance that a foreign national is under 18 years of age, police officers shall immediately alert a guardianship authority and invite it to participate in the handling of the person, to act as a coordinator and to pass decisions within its remit.
Police officers shall use police powers and the measures and actions provided for by the Law on Protection of State Borders and the Law on Foreigners against the person referred to in paragraph I above in order to remove such person from the Republic of Serbia or to place the person at the Shelter for Foreign Nationals under Increased Police Surveillance ("Shelter").
The existing number of available places at the Shelter should be increased to enable accommodation and provision of various forms of care to all foreign nationals who cannot be deported immediately and whose identity has not been determined or who do not have any travel documents on their person, for which purpose the required amount of funds shall be allocated from the budget of the Republic of Serbia.
A foreign national brought to the Shelter shall be provided with accommodation and support in accordance with the applicable regulations and standards, including in particular provision of appropriate accommodation, meals, hygiene, communication in a language he/she can understand, provision of health care and social support, means to satisfy his/her cultural and religious needs etc.
Underage foreign nationals shall be placed at the Shelter together with their parents, except where the guardianship authority in charge considers that other placement arrangements would be more beneficial for the child.
Where the conditions set out in the Law of Foreigners are met, an undocumented foreign national in the Republic of Serbia shall be expelled without delay, for which purpose the necessary funds shall be allocated from the budget of the Republic of Serbia.
A foreign national who expresses intent to seek asylum in the Republic of Serbia or a foreign national who would normally be deported to a territory where he/she is likely to be persecuted because of his/her race, gender, religion, ethnicity, nationality, affiliation with a group or
132 Recommendation No. 75-6/14 based on the Report of the Visit to the Asylum Centre in, October 2013, No. 71-59/13, follow-up visits to that and other asylum centres and data analyses and interviews with police officers in connection with the treatment of migrants and asylum-seekers found in Serbia.
133 Passport, identity card for foreign national, special identity card or other photo ID.
134 Outside of designated places or times for crossing the national border; by avoiding border controls; by using someone else's passport or an invalid or forged passport or other document; by providing inaccurate information to the border police; during the period in which a foreigner is not allowed to enter the Republic of Serbia as a result of expulsion, deportation or cancellation of residence permit.
135 A stay without a visa, residence permit or other legal grounds.
136 Including: photographing, fingerprinting and taking of any other biometric data.
political opinion 137 , especially if there is a risk he/she would be subject to torture or inhuman or degrading treatment or punishment in the territory where he/she should be deported, shall be treated in accordance with the Law on Asylum.
A foreigner who expresses intent to seek asylum in the Republic of Serbia shall be registered and, if necessary, searched for identity documents, after which he/she shall be issued a certificate of intent to seek asylum. The certificate shall contain a photograph and other biometric data.
A foreigner who expresses intent to seek asylum shall be sent to an Asylum Centre 138 ("Centre") and instructed to report to an authorised officer of the Centre or the Asylum Office within 72 hours; alternatively, if the conditions set out in the Law on Asylum are met, he/she shall be escorted to the Centre by police officers without delay.
Asylum Centres should be established and organised with the sole aim of ensuring an efficient asylum-seeking process.
The existing number of available places at the Asylum Centres should be increased to enable accommodation and provision of various forms of care to all foreign nationals who referred or escorted to the Centres under the Law on Asylum, for which purpose the required amount of funds shall be allocated from the budget of the Republic of Serbia.
A foreign national referred or escorted to the Centre shall be provided with accommodation and support in accordance with the applicable regulations and standards, including in particular provision of appropriate accommodation, meals, hygiene, communication in a language he/she can understand, provision of health care and social support, means to satisfy his/her cultural and religious needs etc.
Underage foreign nationals shall be placed at the Centre together with their parents, except where the guardianship authority in charge considers that other placement arrangements would be more beneficial for the child.
Authorised officers of the Centre shall abolish the practice of granting asylum-seekers leaves of absence outside of the Centre.
The Centres shall abolish the practice of "keeping" rooms or beds for foreigners who leave their premises for any reason. Any beds vacated by their previous occupants shall be allocated without delay to newly-received foreign nationals referred or escorted to the Centre.
The Police Directorate of the Ministry of Interior shall form an Asylum Office as an independent organisational unit outside of the Border Police Administration, provide a sufficient number of authorised officers, give them appropriate training and provide them with the resources they need in their work.
The Asylum Office shall introduce daily duty shifts of its authorised officers at each Centre.
An authorised officer of the Asylum Office shall register a foreigner who expressed intent to seek asylum immediately upon admission at the Centre in accordance with the Law on Asylum, after which the foreign national shall be issued an identity card and the officer shall examine, on a
137 Except in cases when there is reasonable suspicion that a foreigner might pose a security threat for the Republic of Serbia or if he/she has been convicted of a felony by a valid and enforceable judgement, which makes him/her a threat to public order.
138 The Centre to which an asylum-seeker will be referred or escorted to will be determined jointly by the Asylum Office and the Commissariat for Refugees and Migrations.
case-by-case basis, whether it is necessary to impose restrictions on the person's freedom of movement 139 .
A foreign national shall be advised, in a language he/she can understand, of his obligation to file an application with the Asylum Office or the duty officer of the Asylum Office assigned to the Centre within 15 days of his/her registration; the officer shall advise the foreign national of the consequences of failure to meet this time limit, explain how to file the application and provide help in the writing of the application.
An authorised officer of the Asylum Office shall, without delay, hear a foreigner who expressed intent to seek asylum in a language he/she can understand the asylum procedure shall be implemented and closed within the shortest possible period.
The Asylum Office shall approve a foreign national's request to be allowed to leave the premises of an Asylum Centre if there are no reasons to restrict his/her movement in accordance with the Law on Asylum.
A foreign national who does not apply for asylum within the period set out in the Law on Asylum, a foreign national whose asylum application has been dismissed or rejected or a foreign national whose asylum procedure has been suspended shall be expelled from the Republic of Serbia in accordance with the Law on Foreigners, unless he/she is entitled to stay in the Republic of Serbia on other grounds.
A foreign national who cannot be expelled from the Republic of Serbia immediately after the passing of a decision to expel him/her shall be placed at the Shelter until the conditions for his/her expulsion are met.
The funds needed for expulsion of foreign nationals from the Republic of Serbia shall be allocated from the budget of the Republic of Serbia.
Within 15 days of receipt of this recommendation, the Ministry of Interior shall present the Government of the Republic of Serbia and the Minister in charge with a draft regulation or draft amendments to any regulation needed to ensure full compliance with this recommendation and shall forward a copy thereof to the Protector of Citizens without delay.
I/II Part Two
– Recommendations made in 2014 in the Reports of Visits conducted in 2014
I/II – 1 Border Police Administration (Border Police Station at the "Nikola Tesla" Airport) 140
The Border Police Administration shall undertake appropriate measures to ensure that custody cells at the "Nikola Tesla" Airport are sufficiently lit and aired.
The Border Police Administration shall install buttons for alarming the police officer on duty and video surveillance equipment in the police custody rooms at the "Nikola Tesla" Airport.
139 By placing the person at the Shelter for Foreigners under increased police surveillance or by prohibiting the person from leaving the Asylum Centre or a specific address or area. 140
Report on Material Condition of the Police Custody Rooms at the "Nikola Tesla"Airport, 71-13/14.
I/II – 2- Police Administration of Kruševac
141 :
The Police officers the Police Administration of Kruševac shall give all persons remanded in custody under the Code of Criminal Procedure and the Law on Road Safety oral notice of their rights and provide them with the written form "Rights of Persons brought in by Police and Persons remanded in Custody". Persons remanded in custody shall confirm their receipt of the notice of their rights by signing the second counterpart of the document, which shall remain the custody file; if a person remanded in custody refuses to sign the notice of rights, this fact shall be stated on the notice.
At the Police Administration of Kruševac, persons remanded in custody shall be given a remand order without delay, together with all other relevant documents (notice of the person's rights, receipt for confiscated items, medical report etc. and persons remanded in custody shall be allowed to keep this documentation with them for the duration of their remand.
The Police Administration of Kruševac shall include in its remand reports all relevant facts concerning the health status of persons remanded in custody, including in particular any visible injuries, in which case an assessment shall be made in order to determine whether the person concerned should be examined by a physician.
The Police Administration of Kruševac shall undertake appropriate measures and activities to renovate and equip custody cells in accordance with the applicable standards.
The Police Administration of Kruševac shall undertake the necessary measures and activities to install a button for alarming the police officer on duty in the custody cell.
The Police Administration of Kruševac shall visibly place a note in its custody cells to inform the occupants the cells are covered by video surveillance. The Police Administration of Kruševac shall undertake the necessary measures and activities without delay to improve the video surveillance system in the custody cell in order to respect the privacy of persons remanded in custody by ensuring the part of the room where the squat toilet is placed, either by blurring that part of the image or by placing a screen around the sanitation facilities.
I/II – 3 - Police Administration of Novi Pazar and the police stations it comprises 142 :
The Police Administration of Novi Pazar shall ensure that all persons remanded in custody are given written notice of the rights of persons brought in by police and persons remanded in custody, in accordance with section 4 of the Instructions on Treatment of Persons brought in by Police and Persons in Custody, as a special form written in a language which the person concerned understands. Apart from this form, arrested persons and persons remanded in custody under the Code of Criminal Procedure shall also be given special forms, in accordance with the applicable Code of Criminal Procedure. All forms shall be given in two counterparts, one of which shall be inserted in the case file with the signature of the person remanded in custody or with a notice stating that the person refused to sign the form, while the other counterpart shall remain with the person remanded in custody.
The Ministry of Interior shall amend the existing Instructions on Treatment of Persons brought in by Police and Persons in Custody and bring them in compliance with the relevant standards of the Council of Europe by stipulating that police officers are not allowed to be present during medical examination of persons deprived of liberty, unless explicitly asked to do so by the attending physician. Police officers shall be present during medical examination only at the explicit request of a physician, which fact shall be recorded in an official note. Police officers shall
141 Report of the Visit to the Police Administration of Kruševac, 71-40/14. 142 Report of the Visit to the Police Administration of Novi Pazar, 71-57/14.
warn the physician of any security-related aspects that may be relevant for the physician's decision whether to allow non-medical personnel to be present during a medical examination.
The Police Administration of Novi Pazar and the police stations it comprises shall count the time when a person was deprived of liberty or showed up in response to a summons as the time of commencement of remand under the Code of Criminal Procedure and the remand order shall be provided within maximum two hours of the time of deprivation of liberty or of the time when a suspect is informed he/she is in remand. The Police Administration of Novi Pazar and the police stations it comprises shall count the time when a person remanded in custody is ordered off the road as the time of commencement of remand under the Law on Road Safety.
The Police Administration of Novi Pazar and the police stations it comprises shall make reports of all remands using the standard form. After the remand period, a printed copy of the remand report shall be given to the person remanded in custody for inspection. The report shall be signed by a police officer and the person remanded in custody; alternatively, a notice shall be made of the fact that the person remanded in custody refused to sign the report. The printed copy of the remand report shall always be inserted in the remand files.
The NPM is of the opinion that written statements should be taken from persons against whom force was used to obtain their opinion on the circumstances surrounding the use of force and the possible infliction of injuries, as well as statements from any witnesses to the incident, to ensure that the assessment of the justifiability of the use of force is as impartial as possible.
The Police Administration of Novi Pazar shall whitewash the custody cell and maintain it in a sanitary condition. Furthermore, measures shall be undertaken to renovate the sanitation facilities in the custody cell, install a flushing button and maintain the facility in a sanitary condition. The Police Administration of Novi Pazar shall undertake measures to provide more natural and artificial lighting in the custody cell and to allow fresh air to circulate and provide natural ventilation. Heating shall be installed on the premises of the Police Administration of Novi Pazar.
The Police Administration of Novi Pazar shall undertake all necessary measures to improve the video surveillance system in the custody cell in order to respect the privacy of persons remanded in custody by ensuring the part of the room where the squat toilet is placed, either by blurring that part of the image or by placing a screen around the sanitation facilities.
The Police Station in Tutin shall undertake the necessary measures to provide more natural light in the custody cells and to provide proper ventilation. The Police Station in Tutin shall undertake measures to install a flushing tank in the sanitation facilities.
It is necessary to ensure that custody cells in the Police Station in Tutin are covered by video surveillance, while ensuring privacy in the toilet area, and to enable recording and archiving of surveillance footage in order to protect the safety of persons remanded in custody and reduce the risk of violence and other events that could pose security threats. The Police Station in Tutin shall undertake measures to install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Sjenica shall whitewash the custody cell and maintain it in a sanitary condition. Furthermore, measures shall be undertaken to renovate the sanitation facilities in the custody cell, install a flushing button and maintain the facility in a sanitary condition. The Police Station in Sjenica measures shall be undertaken to provide more natural and artificial lighting in the custody cell and to allow fresh air to circulate and provide natural ventilation.
It is necessary to ensure that custody cells in the Police Station in Sjenica are covered by video surveillance, while ensuring privacy in the toilet area, and to enable recording and archiving of surveillance footage in order to protect the safety of persons remanded in custody and reduce the risk of violence and other events that could pose security threats. The Police Station in Tutin shall undertake measures to install buttons for alarming the police officer on duty in its custody cells.
The Police Administration of Novi Pazar shall provide first aid kits at the Administration's headquarters and at the Police Station in Tutin.
The Police Administration of Novi Pazar shall improve the fire protection system by visibly placing an evacuation plan and instructions for action in the event of a fire in every police station, with the aim of protecting the physical integrity of persons remanded in custody.
I/II – 4 - The Police Administration of Subotica and the police stations it comprises 143:
The documentation/case files compiled in connection with the deprivation of liberty or remanding in custody may not include medical documentation relating to the person concerned in connection with medical examinations performed while the person was in custody. By way of exception, information on the health status of a person remanded in custody shall be available to police officers only where this is relevant for the case. In other words, police officers should be given access to medical information of persons deprived of liberty only to the extent necessary for them to perform their duties. Police officers should obtain a written report from the physician with information relevant for the further course of action to be taken by the police, including: the physician's opinion whether the person can be remanded by the police taking into account the person's health, notice of any injuries or health issues, details of any special care that should be provided while the person is remanded (e.g. therapy, any specific diet etc.), how such care should be provided etc.
At the Police Administration of Subotica, police officers shall not use handcuffs on every person brought in by police vehicles; instead, this shall be done only upon careful examination of facts that warrant the use of handcuffs on the person, in the cases provided for by the law.
The Police Administration of Subotica shall undertake appropriate measures and provide an area where persons remanded in custody can spend time in fresh air.
The Police Administration of Subotica shall improve the fire protection system by visibly placing an evacuation plan and instructions for action in the event of a fire in every police station, with the aim of protecting the physical integrity of persons remanded in custody.
The Police Administration of Subotica shall arrange for and implement appropriate first aid training for police officers in the Police Station in Bačka Topola and the Police Station in Mali Iđoš.
The Police Station in Mali Iđoš shall not hold persons in custody in offices for hours on end. The Police Administration of Subotica shall undertake appropriate measures to provide suitable custody cells in the Police Station in Mali Iđoš.
I/II – 5 - Police Administration of Valjevo and the police stations it comprises 144:
The Ministry of Interior shall amend the existing Instructions on Treatment of Persons brought in by Police and Persons in Custody and bring them in compliance with the relevant standards of the Council of Europe by stipulating that police officers are not allowed to be present during medical examination of persons deprived of liberty, unless explicitly asked to do so by the attending physician. Police officers shall be present during medical examination only at the
143 Report of the Visit to the Police Administration of Subotica, 71-4/14. 144 Report of the Visit to the Police Administration of Valjevo, 71-18/14.
explicit request of a physician, which fact shall be recorded in an official note. Police officers shall warn the physician of any security-related aspects that may be relevant for the physician's decision whether to allow non-medical personnel to be present during a medical examination.
The documentation/case files compiled in connection with the deprivation of liberty or remanding in custody may not include medical documentation relating to the person concerned in connection with medical examinations performed while the person was in custody. By way of exception, information on the health status of a person remanded in custody shall be available to police officers only where this is relevant for the case. In other words, police officers should be given access to medical information of persons deprived of liberty only to the extent necessary for them to perform their duties. Police officers should obtain a written report from the physician with information relevant for the further course of action to be taken by the police, including: the physician's opinion whether the person can be remanded by the police taking into account the person's health, notice of any injuries or health issues, details of any special care that should be provided while the person is remanded (e.g. therapy, any specific diet etc.), how such care should be provided etc.
The Police Administration of Valjevo and the police stations it comprises shall count the time when a person was arrested or de facto deprived of liberty or the time of appearance of a suspect or a person invited to give a statement as a citizen who was warned he/she would be brought in by force if he/she did not appear as the time of commencement of remand.
The Police Station in Osečina shall allow persons remanded in custody to keep the remand order and all other relevant documentation (notice of the person's rights, receipt for confiscated items etc.) for the duration of the remand.
The Ministry of Interior shall amend the Instructions on Treatment of Persons brought in by Police and Persons in Custody by stipulating that handcuffs shall be used on persons only when strictly necessary, rather than whenever a remanded person is transported, as is currently the case. At the Police Station in Ljig, the Police Station in Mionica and the Police Station in Osečina, police officers shall not use handcuffs on every person brought in by police vehicles; instead, this shall be done only when justified reasons pertain, in the cases provided for by the law.
At the Police Station in Mionica shall provide a suitable custody cell without any further delays.
The Police Station in Mionica shall not hold persons in custody in offices for hours on end.
The Police Administration of Valjevo shall undertake the necessary measures to ensure that video footage is stored/archived for a period of minimum 30 days and to visibly place a note in its custody cells to inform the occupants the cells are covered by video surveillance.
The Police Administration of Valjevo shall install buttons for alarming the police officer on duty in its custody cells.
The Police Station in Osečina shall undertake measures to whitewash and regularly maintain the custody cell. Furthermore, adequate natural and artificial lighting should be provided and the sanitation facilities in the custody cell should be renovated.
The custody cell in the Police Station in Osečina should be covered by video surveillance and recording and archiving of surveillance footage should be enabled in order to protect the safety of persons remanded in custody and reduce the risk of violence and other events that could pose security threats.
The Police Station in Ljig shall visibly place a note in its custody cells to inform the occupants the cells are covered by video surveillance.
The Police Station in Lajkovac shall undertake appropriate measures to ensure regular tidying and sanitation of the custody cell itself and the mattresses, blankets and pillows used in the custody cell.
It is necessary to ensure that custody cell in the Police Station in Lajkovac is covered by video surveillance, while ensuring privacy in the toilet area, and to enable recording and archiving of surveillance footage in order to protect the safety of persons remanded in custody and reduce the risk of violence and other events that could pose security threats.
The Police Administration of Valjevo shall provide first aid kits at the Administration's headquarters and all police stations it comprises.
The Police Administration of Valjevo shall improve the fire protection system by visibly placing an evacuation plan and instructions for action in the event of a fire in every police station, with the aim of protecting the physical integrity of persons remanded in custody.
I/II – 6 - Police Administration of Vranje and the police stations it comprises 145 :
The Police Administration of Vranje and the police stations it comprises shall give all persons remanded in custody under the Code of Criminal Procedure oral notice of their rights and the form of written notice of the rights of arrested persons in accordance with Article 69 of the Code of Criminal Procedure and shall also provide them with the written form "Rights of Persons brought in by Police and Persons remanded in Custody". The Police Administration of Vranje and the police stations it comprises shall ensure that all persons remanded under the Law on Police, the Law on Misdemeanours and the Law on Road Safety are given written notice of their rights in accordance with the Instructions on Treatment of Persons brought in by Police and Persons in Custody. Persons remanded in custody shall confirm their receipt of the notice of their rights by signing the counterpart of the document which remains in the custody file.
The Police Administration of Vranje shall not, if persons remanded in custody did not ask for it, notify persons close to them at its own discretion.
Police officers shall be present during medical examination only at the explicit request of a physician, which fact shall be recorded in an official note which shall clearly state reasons for the presence of a police officer. Police officers shall warn the physician of any security-related aspects that may be relevant for the physician's decision whether to allow non-medical personnel to be present during a medical examination.
The Police Administration of Vranje and the police stations it comprises shall keep uniform remand records in writing in accordance with the Instructions on Treatment of Persons brought in by Police and Persons in Custody.
The Police Administration of Vranje and the police stations it comprises shall count the time when a person was deprived of liberty or showed up in response to a summons as the time of commencement of remand under the Code of Criminal Procedure and the remand order shall be provided within maximum two hours of the time of deprivation of liberty or of the time when a suspect is informed he/she is in remand. The Police Administration of Vranje and the police stations it comprises shall count the time when a person remanded in custody is ordered off the road as the time of commencement of remand under the Law on Road Safety.
The Police Administration of Vranje shall undertake measures to hire female police officers at the Police Station in Trgovište and the Police Station in Bosilegrad to enable more efficient performance of police duties in cases where women are remanded in custody.
145
Report of the Visit to the Police Administration of Vranje, 71-45/14.
The Police Administration of Vranje shall undertake appropriate measures and activities to provide suitable custody cells in police stations.
The Police Station in Surdulica shall undertake measures to improve natural and artificial lighting at the custody cell and to allow fresh air to circulate and provide natural ventilation.
The Police Station in Surdulica shall undertake the necessary measures to ensure that video footage is stored/archived for a period of minimum 30 days and to visibly place a note in its custody cells to inform the occupants the cells are covered by video surveillance.
I/II – 7- Police Administration of Sombor and the police stations it comprises
146 :
The Police Administration of Sombor and the police stations it comprises shall ensure that all persons remanded in custody under the Law on Police, the Law on Misdemeanours, the Code of Criminal procedure and the Law on Road Safety are given written notice of the rights of persons remanded in custody.
The documentation/case files compiled in connection with the deprivation of liberty or remanding in custody may not include medical documentation relating to the person concerned in connection with medical examinations performed while the person was in custody. By way of exception, information on the health status of a person remanded in custody shall be available to police officers only where this is relevant for the case. In other words, police officers should be given access to medical information of persons deprived of liberty only to the extent necessary for them to perform their duties. Police officers should obtain a written report from the physician with information relevant for the further course of action to be taken by the police, including: the physician's opinion whether the person can be remanded by the police taking into account the person's health, notice of any injuries or health issues, details of any special care that should be provided while the person is remanded (e.g. therapy, any specific diet etc.), how such care should be provided etc.
The Police Administration of Sombor and the police stations it comprises shall ensure that all persons remanded under the Code of Criminal Procedure are given a remand order within 2 hours of deprivation of liberty (arrest). The time of appearance of a suspect or a person invited to give a statement as a citizen who was warned he/she would be brought in by force if he/she did not appear shall count as the time of commencement of remand.
The Police Administration of Sombor shall give persons remanded in custody the remand order and all other relevant documentation (notice of the person's rights, receipt for confiscated items etc.) and persons remanded in custody shall be allowed to keep this documentation on their person while they are remanded in custody.
The Police Administration of Sombor shall allow every person remanded in custody to read the remand report, which fact shall be confirmed by the signature of the person remanded in custody; where the person remanded in custody refuses to sign the report, a note to that effect shall be included in the report.
The Ministry of Interior shall amend the Instructions on Treatment of Persons brought in by Police and Persons in Custody by stipulating that binding is to be applied only when strictly necessary, rather than whenever a person in custody is transported, as is currently the case.
At the Police Administration of Sombor and in and the police stations it comprises, police officers shall not use handcuffs on every person brought in by police vehicles; instead, this shall be done only when justified reasons pertain, in the cases provided for by the law.
146
Report of the Visit to the Police Administration of Sombor, 71-5/14.
At the Police Administration of Sombor, receipts for the temporarily confiscated and returned belongings shall be signed by the persons in custody from whom such belongings have been confiscated or shall include a written notice of their refusal to sign the report.
It is necessary to perform the required renovation work on the toilet used by persons remanded in custody at the Police Administration of Sombor and regularly maintain it in a sanitary condition.
The existing custody cell in the Police Station in Apatin shall no longer be used for holding persons in custody. The Police Station in Apatin shall provide a separate custody cell which is compliant with the applicable standards.
The existing custody cells in the Police Station in Kula shall no longer be used for holding persons in custody. The Police Station in Kula shall provide dedicated custody cells which shall comply with the applicable standards.
The Police Administration of Sombor shall install buttons for alarming the police officer on duty in its custody cells.
The Police Administration of Sombor shall visibly place a note in its custody cells to inform the occupants the cells are covered by video surveillance.
The Police Administration of Sombor and the police stations it comprises shall undertake appropriate measures to provide a designated area where persons remanded in custody can spend time outdoors.
The Police Administration of Sombor and the police stations it comprises shall improve the fire protection system by visibly placing an evacuation plan and instructions for action in the event of a fire in every police station, with the aim of protecting the physical integrity of persons remanded in custody.
The Police Administration of Sombor and the police stations it comprises shall arrange for and implement appropriate first aid training for police officers.
The Police Administration of Sombor and the police stations it comprises shall undertake the necessary measures to ensure that video footage is stored/archived for a period of minimum 30 days, both at the Police Administration and at all police stations it comprises.
I/II – 8 - Penal and Correctional Facility in Šabac 147 :
The Penal and Correctional Facility in Šabac shall allow spend spare time during the day outside of their dormitories, in communal areas with other detainees, unless they have been segregated from them under court orders.
The closed unit does not have a designated day room for convicts. 148
The Penal and Correctional Facility in Šabac shall provide detainees with clean blankets.
At the Penal and Correctional Facility in Šabac, detainees with no prior convictions shall not be placed in the same rooms/dormitories with those who have prior convictions.
Report of Visit to the the Penal and Correctional Facility in Šabac, 71-23/14.
147 148 Reference to the recommendation relating to the detention unit.
The Penal and Correctional Facility in Šabac shall undertake all available measures and activities to influence convicts to keep good personal hygiene and maintain the rooms where they stay in a sanitary condition and the Facility shall enable this by providing the necessary products and equipment.
The Penal and Correctional Facility in Šabac shall renovate the joint sanitation facilities on the first floor where convicts are placed, in accordance with the applicable regulations and standards.
The Penal and Correctional Facility in Šabac shall renovate the sanitation fixtures in the communal bathroom on the second floor where the dormitory of the intake unit is situated.
The Penal and Correctional Facility in Šabac shall ensure a varied, high-quality diet for inmates, including in particular fresh fruits and vegetables and dairy products.
The Penal and Correctional Facility in Šabac shall give convicts who are subject to disciplinary proceedings access to professional legal assistance by a lawyer.
The Penal and Correctional Facility in Šabac shall place visible notice of video surveillance in the room for visits by defence attorneys.
In the future, heads of departments and other authorised officers at the Penal and Correctional Facility in Šabac shall provide written replies to petitions filed by convicts in connection with the exercise of their rights. All petitions shall be entered in the records of petitions.
The Penal and Correctional Facility in Šabac shall undertake measures without delay to provide an appropriate room where persons would be searched with full respect for their privacy and dignity. The Facility shall undertake the necessary activities to hire female officers at the Security Department.
The Penal and Correctional Facility in Šabac shall visibly place notice of video surveillance in every room covered by video surveillance. The Penal and Correctional Facility in Šabac shall undertake measures to improve the video surveillance system and to keep the recorded footage for minimum 30 days.
The Penal and Correctional Facility in Šabac shall install an alarm button with sound and visual signals for alerting the security officer on duty.
When giving their opinion on the behaviour of a convict for the purposes of disciplinary proceedings, corrections officers at the Penal and Correctional Facility in Šabac shall not provide a description of the misconduct or a proposal for the course of action, because this prejudices the outcome of the disciplinary proceedings and sways the decision-makers towards declaring a convict guilty of a misconduct. Deciding whether to discipline a convict and what the type and scope of the disciplinary action should be is the sole responsibility of the body in charge of disciplinary proceedings.
The Penal and Correctional Facility in Šabac shall segregate convicts during disciplinary proceedings pursuant to an alleged serious misconduct on the basis of a decision made by the warden or a person authorised by him/her. Such decision shall be inserted in the case file of the disciplinary proceedings.
The warden of the Penal and Correctional Facility in Šabac shall pass orders and instructions on (in)admissible forms of convict behaviour at the Facility. When passing those orders/instructions, the warden shall consider whether the fact that a convict has passed beneath the window of the General Affairs Department can be seen as undisciplined, rude and aggressive behaviour which disrupts life and work at the Facility.
The Penal and Correctional Facility in Šabac shall undertake measures without delay to arrange for medical examination of every convict who is about to be placed in solitary confinement, after which the attending physician shall give an opinion writing which shall be inserted in the case file of the discipline proceedings.
The Penal and Correctional Facility in Šabac shall renovate the sanitation facilities in the room used for disciplining, solitary confinement and segregation.
In their future work, the corrections officers of the Penal and Correctional Facility in Šabac shall write a note of every interview with a convict and insert it in the convict's file and shall keep a list of individual, group and other correctional activities performed in accordance with an individual treatment plan.
The Penal and Correctional Facility in Šabac shall undertake appropriate measures and activities to allow persons placed at the closed unit to take examinations outside of the Facility where necessary.
The Penal and Correctional Facility in Šabac should hire additional staff for training and occupational treatment, i.e. it should hire more instructors (8).
Detainees at the Penal and Correctional Facility in Šabac shall be allowed to spend two hours a day outdoors, in accordance with the Law on Enforcement of Prison Sanctions and the Code of Criminal Procedure.
The Penal and Correctional Facility in Šabac shall provide a designated area (gymnasium) fitted with exercise equipment for physical activity of convicts and detainees during precipitation.
The Penal and Correctional Facility in Šabac shall fit the area designated for walks by convicts and detainees with exercise equipment, within available means.
The Penal and Correctional Facility in Šabac shall allow detainees to receive visits of minimum one hour in duration, in accordance with the applicable regulations.
The Facility shall undertake the necessary measures to hire additional staff for health care jobs, including a minimum number of nurses (paramedics) to ensure their presence at the Facility on a 24/7 basis. Within maximum three months, the Facility shall procure the services of minimum one psychiatrist by hiring a physician specialised in the relevant field, in order to ensure that a physician specialised in psychiatry (or neuropsychiatry) is present at the Facility minimum twice a week for at least four hours, to provide an integrated approach to health care through the inclusion of a psychiatrist in the multidisciplinary team.
The Facility's physician shall submit periodic written reports to the warden concerning the health condition of convicts, with recommendations for their physical activity. Copies of the written recommendations shall be kept at the Facility's outpatient clinic.
The Penal and Correctional Facility in Šabac shall in the future regularly air the room used for segregation of diseased inmates and maintain it in a sanitary condition.
The required equipment should be provided in the room designated for medical examination, including: Ambu resuscitator; a negatoscope for viewing x-ray films; and a surgical set of instruments for minor surgeries in a cassette. The Facility shall procure this within maximum 6 months. In addition to the necessary procurements, the Facility should also consider procuring a portable electrocardiography machine and an otoscope.
The Facility shall ensure that therapy prescribed by a physician is administered to convicts exclusively by medical staff.
The fact that non-medical staff are not allowed to be present during medical examination of persons deprived of liberty shall be stated on visibly placed notices in waiting rooms, on the outer side of doors to doctors' offices and inside doctors' offices; all officers of the Security Department should also be given notice of this. If a physician demands the presence of nonmedical staff during examination or other medical work, such request and the identities of the non-medical staff who are present must be entered in the medical record of the person deprived of liberty.
The initial examination of detainees/convicts must include full-body examination without clothes, for the purpose of detecting any bodily harm that may be linked with violent treatment of persons deprived of liberty. In connection with such examination, medical records must include relevant statements: either a statement that a full-body examination was performed and no injuries were found or a description of any injuries found.
It is necessary to prepare a plan and perform regular (periodic) examinations of persons deprived of liberty at intervals not longer than three months. Such examinations must, as a minimum, cover all aspects included in the initial medical examination, with any additional measures undertaken as appropriate taking into account the health status of individual inmates. The findings of such regular (periodic) examinations shall be notified in writing to the Facility's warden minimum once a year, or more frequently if necessary due to improved or deteriorated health of an inmate, and in any case whenever any change in an inmate's health status is found.
As the Facility has no dental surgery, it should arrange for a relevant health care institution to provide dental services to persons deprived of liberty by setting a weekly quota of patients who would be received, which quota shall be distributed at relatively regular intervals (every two or three days); the arranged weekly quota shall not include persons deprived of libery who are referred for emergency dental services outside of the Facility (e.g. toothache, tooth abscesses etc.) and such persons shall be provided with emergency dental services during the working hours of the dental establishment and based on an assessment of the Facility's physician.
The Facility's physician shall forthwith, and in any case within maximum seven days, establish and begin maintaining records of convicts' injuries. In such records, the physician shall present the allegations of the injured person about the way in which the injuries were sustained and the physician's opinion on the origin of the injuries.
The Penal and Correctional Facility in Šabac shall ensure that, within maximum six months, the closed section of the Facility occupied by detainees and convicts, who spend most of their time in their rooms, is provided with dormitories designated as non-smoking areas. These rooms shall be marked in accordance with the Law on Protection of the Population from Exposure to Tobacco Smoke. Other measures provided for by the said Law shall be implemented as well. The dormitories designated as non-smoking areas shall be used for the placement of detainees and convicts who demand to be protected from exposure to tobacco smoke.
The physician shall present the warden with written findings and recommendations on ways to improve hygiene at the Facility and among the inmates and shall describe the current state of sanitation conditions and facilities, heating, lighting and ventilation in the rooms used by inmates.
I/II – 9- District Prison in Novi Sad 149 :
The District Prison in Novi Sad shall provide the required amount of space per detainee, so that each detainee has minimum eight cubic metres and four square metres of space at his disposal.
149
Report of the Visit to the District Prison in Novi Sad, 71-77/14.
The District Prison in Novi Sad shall ensure that detainees spend their spare time during the day (in the morning and in the afternoon) outside of their dormitories, in communal rooms with other detainees, unless they have been segregated from them under court orders.
The District Prison in Novi Sad shall remove dampness from the walls in all dormitories and whitewash the walls for sanitation purposes.
The District Prison in Novi Sad shall provide detainees with lockers for their personal belongings.
The District Prison in Novi Sad shall provide a designated day room in the closed unit, with sufficient chairs and tables and with access to radio and television programmes.
The District Prison in Novi Sad shall provide the required amount of space per convict at the closed unit, so that each convict has minimum eight cubic metres and four square metres of space at his disposal.
The District Prison in Novi Sad shall provide the convicts placed at the closed unit with sufficient lockers for their personal belongings.
The District Prison in Novi Sad shall not put smokers and non-smokers in the same room.
The District Prison in Novi Sad shall undertake all available measures and activities to influence convicts to keep good personal hygiene and maintain the rooms where they stay in a sanitary condition and the facility shall enable this by providing the necessary products and equipment.
The District Prison in Novi Sad shall replace the worn-out sanitation fixtures and fittings in the sanitation facilities and the communal bathrooms.
The District Prison in Novi Sad shall visibly place menus in the dining room not later than on the last day of the week in respect of the following week.
The District Prison in Novi Sad shall allow persons deprived of liberty to purchase items from the canteen twice a week, it being understood that this cannot be done on two consecutive days, without any restrictions concerning the types of products they may purchase. The District Prison in Novi Sad shall fit the communal areas with refrigerators for persons deprived of liberty to keep any perishable food they bought from the canteen.
Searches of visitors at the District Prison in Novi Sad shall be conducted in accordance with the applicable regulations, in a manner which respect the personal dignity of visitors and protects their personal belongings.
The District Prison in Novi Sad shall undertake measures without delay to ensure better coverage of the facility with video surveillance. Any areas under video surveillance shall be visibly marked as such.
The District Prison in Novi Sad shall undertake measures without delay to equip the rooms used for placement of persons deprived of liberty with sound alarms to alert the guards in the event of any incidents.
Although the Law on Enforcement of Penal Sanctions does not provide for mandatory photographing of injuries sustained during incidents, the practice of taking photographs which has been implemented by the District Prison in Novi Sad has been shown to be very useful both in disciplinary proceedings against convicts and as a form of protection if convicts dispute the origin of injuries sustained in connection with an incident. Furthermore, according to security officers and the warden, photographs also provide protection for the staff of the Security
Department against false accusations as to the way in which injuries were sustained. In view of these facts, the District Prison in Novi Sad should establish a uniform practice of photographing any injuries, both those sustained during incidents and those sustained from the use of force. This would provide persons deprived of liberty with an equal level of protection if their right to physical integrity is violated by use of excessive force.
The District Prison in Novi Sad shall not initiate or conduct disciplinary proceedings for threats or damage to or destruction of large quantities of property in cases where it is obvious that the property itself has a relatively low value. The District Prison in Novi Sad shall ask the responsible Ministry without delay for guidance and interpretation of applicable regulations with regard to the concept of large quantities of property.
The District Prison in Novi Sad shall renovate the rooms used for solitary confinement in accordance with the statutory standards.
It is necessary to increase the total number of correctional groups at the closed unit and reduce the number of convicts in each correctional group in order to increase the chances of successful completion of the treatment programmes and enable each convict to progress to a more favourable correctional group.
The District Prison in Novi Sad shall undertake measures and prepare a training programme for the staff involved in correctional work and resocialisation of convicts, in order to increase the quality of correctional work aimed at achieving the best possible outcome in terms of reintegration and rehabilitation of convicts. The District Prison in Novi Sad shall undertake measures to provide continual training to the staff engaged in correctional work with convicts. When defining individual goals in its future work, the Correctional Work Department shall take into account primarily those factors that are within a convict's control and which he can influence in order to achieve the set individual goals. Accordingly, it shall also define measurable criteria which would allow it to realistically assess the attainment of a goal.
Workshop facilitators shall keep lists of group activities, with conclusions and convicts' comments regarding the workshops, and shall insert the lists in the files of the convicts who participated in the workshops.
The District Prison in Novi Sad shall undertake measures to enable all convicts to participate in some form of education or training, according to their individual needs and inclinations, it being understood that priority should be given to those who are illiterate and have no vocational qualifications.
The District Prison in Novi Sad shall undertake measures to increase the number of convicts with occupational assignments that prepare them for working and living in the community after their release.
The District Prison in Novi Sad shall erect a canopy in the area for outdoor walks within the closed unit to shelter the users who are out for walks from precipitation.
The District Prison in Novi Sad shall erect a canopy in the area for outdoor walks within the detention unit to shelter the users who are out for walks from precipitation.
Detainees in the District Prison in Novi Sad shall be allowed to spend minimum two hours outdoors every day.
The District Prison in Novi Sad shall provide a designated area (gymnasium) fitted with exercise equipment for physical activity of convicts and detainees during precipitation.
The District Prison in Novi Sad shall fit the area designated for walks by convicts at the closed unit and detainees with exercise equipment, within available means.
The District Prison in Novi Sad shall in the future allow all interested convicts to participate in literary, drama, arts or music groups or any other activities, regardless whether the individual goals set for them include such activities or not.
The District Prison in Novi Sad shall undertake measures to give all persons deprived of liberty access to copies of relevant regulations which govern the enforcement of penal sanctions in a language they can understand.
The District Prison in Novi Sad shall allow detainees to receive visits of minimum one hour in duration, in accordance with the applicable regulations.
The District Prison in Novi Sad shall allow all convicts to receive visits in a designated visiting room once every two months.
The District Prison in Novi Sad shall fit the room for visits by close persons with additional elements (a table, chairs, armchairs etc.) and shall regularly maintain the room and the bathroom in a sanitary condition. The District Prison in Novi Sad shall adapt the room for visits by close persons so that it can be used for visits by children.
The District Prison in Novi Sad shall adapt the content of the sanitary packs to suit the needs of women.
The facility shall hire a sufficient number of paramedics to ensure the presence of minimum one person with medical qualifications at the facility on a 24/7 basis and at all times (on weekdays, on weekends and on public holidays). The facility shall ensure that a physician specialised in psychiatry (or neuropsychiatry) is present at the Facility minimum twice a week for at least four hours, to provide an integrated approach to health care through the inclusion of a psychiatrist in the multidisciplinary team.
The Facility's physician shall forthwith present the allegations of the injured person about the way in which the injuries were sustained and the physician's opinion on the origin of the injuries in the existing Record of Injuries.
The Facility's physician shall submit periodic written reports to the warden concerning the health condition of convicts, with recommendations for their physical activity. Copies of the written recommendations shall be kept at the Facility's outpatient clinic.
The facility shall provide all currently missing equipment. Furthermore, the facility shall consider the procurement of any other equipment identified as lacking by its officers. District Prison in Novi Sad shall modify the "General Medical Examination Sheet" in heading 5, "Existing Conditions and Objective Examination upon Admission", sub-heading "Objective
Examination" by removing the printed text which implies and prejudices a normal result.
Taking into account the fact that the facility's physician is required to submit periodic written reports to the warden concerning the health condition of convicts for the purpose of assessing the health status of persons deprived of liberty, they should be subjected to periodic medical examinations. Therefore, taking into account the available professional resources of the Health Care Department, the facility shall prepare a plan and perform regular (periodic) examinations of persons deprived of liberty at intervals not longer than three months. Such examinations must, as a minimum, cover all aspects included in the initial medical examination, with any additional measures undertaken as appropriate taking into account the health status of individual inmates. The findings of such regular (periodic) examinations shall be notified in writing to the Facility's warden minimum once a year.
The facility's physician shall, without delay, describe in detail any injuries sustained by inmates in all instances of bodily harm by using the statutory medical documentation in accordance with the rules of the medical profession, regardless of the circumstances surrounding the infliction of the injury. The facility's warden shall undertake measures without delay to ensure that each instance of use of force is analysed on the basis of complete medical documentation, so as to determine beyond doubt whether the force used was minimal under the circumstances and assess whether the use of force was an excuse to punish a person deprived of liberty. In this context, the facility's warden shall: (1) arrange for training of all officers of the Security Department on safe techniques for physically restraining persons with minimum force; (2) warn all employees at the facility that any use of force outside of the scope provided for by the law, regardless whether it is a matter of the force being disproportionate or if the force was used to punish a person deprived of liberty, constitutes mistreatment and the responsible officers will be subject to disciplinary and criminal liability; (3) in the specific case of the convict with the initials B.A., take action against the responsible officers within his sphere of competence in connection with the recommendation given under 2 above and notify the relevant public prosecutors' office.
The District Prison in Novi Sad shall make arrangements for timely transportation of persons deprived of liberty to their specialist appointments and other medical interventions at health care institutions outside of the facility.
The District Prison in Novi Sad shall provide regular periodic dental examinations at intervals not longer than 12 months, while dental interventions shall include more than just tooth extraction and shall focus more on filling and other dental services.
The District Prison in Novi Sad shall refer all convicts with severe mental disorders to the Special Prison Hospital or another suitable health care institution without delay. In the future, persons with severe mental disorders shall be placed at the District Prison in Novi Sad only if this facility subsequently develops the capacities needed to provide them with proper treatment.
I/II – 10 - Juvenile Correctional Facility in Kruševac 150:
The Juvenile Facility shall undertake measures to provide for better airing of dormitories.
The Juvenile Facility shall renovate all rooms of the Intensive Work Unit and all sanitation facilities, including in particular communal bathrooms, in accordance with the applicable regulations and standards.
The Juvenile Facility shall install an alarm button for alerting the guard on duty in all dormitories at the Intensive Work Unit.
The Juvenile Facility shall renovate the open unit in accordance with the applicable regulations and standards.
The Juvenile Facility shall undertake appropriate measures and activities to make the rooms at the intake unit compliant with the applicable regulations and standards.
The Juvenile Facility shall undertake appropriate measures and activities to make the rooms at the unit where convicts are held compliant with the applicable regulations and standards.
The Juvenile Facility shall fully renovate its kitchen.
The Juvenile Facility should ensure a sufficient number of correctional staff by hiring new employees at the Intensive Work Unit.
150
Report of Visit to the Juvenile Correctional Facility in Kruševac, 71-35/14.
The Juvenile Facility shall ensure that correctional groups include maximum 10 wards.
In its future work, the Corrections Department shall make official notes to indicate whether centres for social work have presented the treatment programme to the wards' parents/guardians. In cases where the treatment programme has not been presented to parents/guardians, such note will state the reasons for this. These notes shall be inserted in the wards' files.
To ensure the drafting of a relevant bylaw, the Juvenile Facility shall submit to the Administration for Enforcement of Penal Sanctions a draft document setting out the rules and levels of the scoring system which meet the demands of ward categorisation at the Juvenile Facility.
In their future work, the corrections staff of the Juvenile Facility will make official notes of the observations and proposals concerning possible progression of a ward to the next level made by multidisciplinary team members involved in the work with a ward after each session, or the reasons why the conditions for the ward's progression have not been met. These official notes shall be inserted in the wards' files.
When a ward is reassigned from the Open-type Unit to the Intensive Work Unit, the corrections staff shall cooperate with other team members to review the original treatment plan and shall present the revised treatment plan to the warden for endorsement and signature. The corrections staff shall monitor and evaluate on a regular basis the implementation of all activities envisaged by the revised treatment programme and shall make a note after each activity.
The Intensive Work Unit should provide intensive, varied and comprehensive treatment suited to the wards' developmental needs, with more educational activities focused on correcting problematic behaviour and returning to the Open-type Unit.
In their future work, the corrections staff of the Juvenile Facility shall make notes after any type of group activity to record the title of the workshop, the names of those who participated, the subject matter covered by the workshop and the purpose of the workshop; also, wards should be given an opportunity to voice their comments and observations.
The existing Scoring and Ranking Rules need to be amended with regard to the benefits and privileges available to wards. Specifically, a clear statement of the benefits associated with the first level is needed.
The Juvenile Facility and the Administration for Enforcement of Penal Sanctions worked together with representatives of the Ministry of Education, Science and Technological Development to ensure that the diplomas issued to the Juvenile Facility's wards at the end of their vocational training courses at the Facility are recognised as valid and equivalent to the diplomas received from regular VET schools, to enable the Juvenile Facility's wards to compete in the job market for specific jobs on an equal footing with other members of the community.
In their future work, instructors will produce weekly reports on the level of effort put in by the wards and their progression in vocational training and shall submit such reports to a corrections officer for review. Each such report shall be discussed in the sessions of the multidisciplinary team and decisions shall be made to revise the treatment where appropriate.
The Juvenile Facility shall undertake measures to ensure that female wards have equal access to and use of the gymnasium and the exercise areas within the perimeter of the Juvenile Facility as their male counterparts.
To ensure a sound, varied and continual reform process, the wards who are temporarily placed at the Intensive Work Unit should be allowed to participate in culture and art activities and other activities organised and implemented at the Open-type Unit, in order to prevent the harmful effects of solitary confinement and isolation.
The Juvenile Facility shall provide a designated room for visits by close persons.
Within maximum six months, the Juvenile Facility shall procure the services of a psychiatrist/neuropsychiatrist by hiring a physician specialised in the relevant field, in order to ensure that a physician specialised in psychiatry (or neuropsychiatry) is present at the Facility minimum three times a week for at least four hours, to provide an integrated approach to health care through the inclusion of a psychiatrist in the multidisciplinary team and to enable the use of other mental health treatment methods apart from medication and facilitate proper mental health prevention in the specific juvenile population.
The Juvenile Facility's physician shall forthwith present the allegations of the injured person about the way in which the injuries were sustained and the physician's opinion on the origin of the injuries in the existing Record of Injuries.
The Juvenile Facility shall develop and implement a suicide prevention programme through joint multidisciplinary efforts with relevant expert services.
The Juvenile Facility's physician shall submit periodic written reports to the warden concerning the health condition of inmates, with recommendations for their physical activity. Copies of the written recommendations shall be kept at the Juvenile Facility's outpatient clinic.
The expired glucometer test strips must be disposed of without delay and valid test strips must be purchased for the device.
The Juvenile Facility's physician shall, without delay, describe in detail any injuries sustained by inmates in all instances of bodily harm by using the statutory medical documentation in accordance with the rules of the medical profession, regardless of the circumstances surrounding the infliction of the injury. The Juvenile Facility's warden shall undertake measures without delay to ensure that each instance of use of force is analysed on the basis of complete medical documentation (see above), so as to determine beyond doubt whether the force used was minimal under the circumstances and assess whether the use of force was an excuse to intentionally inflict pain on a juvenile offender. In this context, the Juvenile Facility's warden shall: (1) arrange for training of all officers of the Security Department on safe techniques for physically restraining persons with minimum force; (2) warn all employees at the Juvenile Facility that any intentional inflicting of pain constitutes mistreatment and the responsible officers will be subject to disciplinary and criminal liability; (3) in any specific cases involving individual wards, take action against the responsible officers within his sphere of competence in connection with the recommendation given under 2 above and notify the relevant public prosecutors' office.
The Juvenile Facility shall undertake measures within its sphere of competence to remove the wards with mental disorders from regular placement and place them at an appropriate institution where they would be provided with proper psychiatric treatment.
The Juvenile Facility's physician shall forthwith begin presenting the allegations of the injured person about the way in which the injuries were sustained and the physician's opinion on the origin of the injuries, i.e. his opinion whether there is a link between the force used and the injuries sustained in the existing Record of Injuries.
The Juvenile Facility's physician shall record all identified instances of bodily harm in the Record of Injuries.
The physician shall present the warden with written findings and recommendations on ways to improve hygiene at the Juvenile Facility and among the wards and shall describe the current state of sanitation conditions and facilities, heating, lighting and ventilation in the rooms used by wards; furthermore, the physician shall also present his findings with regard to the quantity and quality of food.
I/II – 11 - Residential Care Facility for the Elderly Voždovac 151 :
The existing SOS buttons of staff alarms need to be checked and repaired on a regular basis.
A separate room should be designated for users who smoke in all pavilions.
Dampness should be removed from bathroom walls and the walls should be whitewashed for sanitation purposes.
The Residential Care Facility should establish and regularly maintain records of filed applications, complaints and appeals.
The Residential Care Facility shall undertake the necessary measures to register the Inpatient Clinic (Pavilion F) as a separate health care and social security unit within the social security institution.
The Residential Care Facility shall make an assessment of the need for nurses and forward it to the Ministry of Labour, Employment, Veteran and Social Affairs, while a copy of the assessment with the response by the Ministry of Labour, Employment, Veteran and Social Affairs should be submitted to the Protector of Citizens.
The Residential Care Facility shall undertake available measures to hire more physical therapists in order to provide more accessible and higher-quality physical therapy.
The administration of the Residential Care Facility and the expert psychosocial service shall develop accessible and customised psychosocial rehabilitation activities for the users and involve them in as many programmes as possible. The Residential Care Facility shall occasionally assess the quality and type of the activities available to users, focus on the individual abilities and needs of users and develop new, stimulating forms of engagement for them.
The administration of the Residential Care Facility shall assess the needs for occupational therapists and forward it to the Ministry of Labour, Employment, Veteran and Social Affairs, while a copy of the assessment with the response by the Ministry of Labour, Employment, Veteran and Social Affairs should be submitted to the Protector of Citizens.
The resident psychologist and social workers should be included in occupational therapy activities in order to develop programme services.
It is necessary to provide relevant amenities and implement as many programme activities as possible for semi-dependent and dependent users in accordance with their individual needs, in accordance with the principle of equal access to services for all categories of users.
The Residential Care Facility needs to provide a designated room suitable for occupational therapy and a hall for culture and entertainment events.
The Residential Care Facility shall create a special record of the use of restraints on users, with entries of the exact time when the physical restraint/binding of a patient began (which is entered immediately upon applying the measure), the exact time when the restraints are removed (which they enter immediately upon removing the restraints), the reasons for applying this measure, the name of the physician who ordered or approved the measure, a description of any injuries caused to patients or staff and any other relevant circumstances. The Residential Care Facility shall complete its records of use of restraints by providing the following information: which less
151 Report of Visit to the Residential Care Facility for the Elderly Voždovac, 71-53/14.
restrictive measures had been applied before it was decided to restrain a user; information on visits to restrained users by the psychiatrist in charge and by other medical staff; whether the user's legal representative was informed of the restraining measure and, if so, when; any injuries inflicted on the patients or on hospital staff; and any comments made by the user.
In its future operation, the Residential Care Facility shall examine on a case-by-case basis whether the use of physical restraints is proportionate and adequate given the user's health status. Before resorting to physical restraints, the Residential Care Facility shall attempt other, less restrictive measures. The Residential Care Facility shall limit the duration of the use of physical restraints to the shortest possible period in order to preserve users' physical integrity and dignity. The Residential Care Facility shall ensure that a user put in restraints is placed in a separate room, where no other users are present.
For the purpose of examining possible amendments to the existing provisions and ensuring a sufficient number of resident care-givers, the Residential Care Facility shall assess the needs for care-givers and submit it to the Ministry of Labour, Employment, Veteran and Social Affairs, with a copy to the Protector of Citizens.
The Residential Care Facility shall undertake measures and prepare a training programme for the staff involved in user rehabilitation work, with the aim of improving the quality of health care and psychosocial rehabilitation of users. The Residential Care Facility shall undertake measures to provide continual training to all employees of the Residential Care Facility who work directly with users.
I/II – 12 - Gerontology Centre "Srem" in Ruma 152 :
The Centre shall not place more than four users in each room.
The Centre shall provide beds with handles to all users who have mobility difficulties.
The system for alerting medical staff in case of emergencies should be repaired.
Dampness should be removed from the rooms and bathrooms in the "B" building and they should be whitewashed for sanitation purposes.
The Centre shall undertake measures to ensure all users wear their daily clothes during the day.
The Centre shall provide a sufficient number of screens in rooms to protect users' privacy.
The Centre shall provide appropriate equipment for serving meals in bed to users with mobility difficulties.
The Centre shall establish and regularly maintain records of filed applications, complaints and appeals.
The Centre shall reorganise its psychosocial service by assigning the employees to spend more of their time working directly with users. The psychosocial service shall provide a sufficient number of accessible and tailored rehabilitation activities for users and involve them in as many of these activities as possible.
Expert staff shall continually motivate users to ensure as many of them as possible participate in the Users' Council.
152
Report of Visit to the Gerontology Centre "Srem" in Ruma, 71-70/14.
I/III Part Three
– Recommendations made in 2015 in the Report of a Visit conducted in 2014
I/III – 1 - Gerontology Centre in Šabac 153
The Centre shall not place more than four users in each room.
The Centre shall undertake measures to provide a sufficient number of showers in accordance with applicable regulations.
The Centre shall undertake measures to provide a separate showering area in the bathrooms. A system for alerting medical staff in case of emergencies should be installed.
The halls, communal rooms and smoking rooms in the New Building should be whitewashed.
Dampness should be removed from the bathrooms on the ground floor of the Inpatient Clinic and they should be whitewashed for sanitation purposes.
The Centre shall undertake measures to enable users to wear their daily clothes during the day.
The Centre shall undertake measures to ensure that existing screens are used on a regular basis when users change clothes or keep their personal hygiene, in order to protect users' privacy.
The Centre shall establish and regularly maintain records of filed applications, complaints and appeals.
The Centre shall undertake measures to provide relevant amenities and implement as many programme activities as possible for the dependent users, all of which should take place in communal rooms and in fresh air.
153
Report of Visit to the Gerontology Centre in Šabac, 71-81/14.
ANNEX II
Conclusions of the National Assembly of the Republic of Serbia
Pursuant to Article 8, paragraph 1 of the Law on National Assembly ("Official Gazette", No. 9/10) and Article 238, paragraph 5 of the Rules of Procedure of the National Assembly ("Official Gazette of RS", No. 20/12 - consolidated text),
On the Fourth Sitting of the Second Regular Session in 2014 held on 23 October 2014, The National Assembly hereby passes this
CONCLUSION BASED ON A REVIEW OF THE REPORT ON ACTIVITIIES OF THE NATIONAL PREVENTIVE MECHANISM FOR 2013
1. The National Assembly finds that in his report on the activities of the National Preventive Mechanism for 2013, the Protector of Citizens comprehensively presented activities of the Protector of Citizens in capacity of the National Preventive Mechanism in the field of protection and improvement of human and minority freedoms and rights.
2. With regard to the findings of the Protector of Citizens that as a rule detainees do not have an opportunity to spend free time during the day outside their cells in communal rooms with other detainees in cases where no court-ordered contact restrictions apply; that in most cases they do not have an opportunity to do productive work, nor are they included in social and cultural activities; that detainees are not grouped together according to the type of criminal offence of which they are indicted, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve treatment of detainees, i.e. to allow them to exercise all their rights in accordance with the applicable regulations and standards.
3. With regard to the assessment of the Protector of Citizens that women in detention are mostly and commonly isolated for long periods because their number in detention units tend to be low, whereas this is meant to be a disciplinary or a special measure of strictly limited duration for men in the penal enforcement system, the National Assembly orders the competent authorities to exercise increased caution with the aim of reducing isolation of female detainees for a long periods during detention.
4. With regard to the findings of the Protector of Citizens that many convicts in closed units do not have an option to spend free time during the day in communal rooms with other convicts, including in particular persons under increased supervision, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to enable all convicts, except to those in solitary confinement or isolation, to spend free time during the day in communal rooms with other convicts.
5. With regard to the assessment of the Protector of Citizens that there are significant shortcomings in active, individual and collective correctional work of correctional officers with convicts, the National Assembly orders the Ministry of Justice to improve treatment of convicts in penal facilities in terms of more intensive an effective work of correctional officers with convicts, increasing their work engagement where possible, education and the highest level of exercise of religious rights and to pass new or modify the existing regulations without delay, which would ensure implementation of the law in accordance with the applicable standards in that regard.
6. With regard to the assessment of the Protector of Citizens that there are numerous illegalities and irregularities in the treatment by competent authorities of irregular migrants and foreigners who expressed their intention to seek asylum in the Republic of Serbia, the National Assembly, endorsing all recommendations the Protector of Citizens gave to the Ministry of Internal Affairs and the Commissariat for Refugees and Migration in that regard, orders the authorities to which those recommendations were given to fully implement them without delay, particularly to register all migrants who entered into the territory of the Republic of Serbia, to keep migrants under full control of the competent authorities pending final resolution of their status, i.e. deportation in accordance with the applicable regulations, as well as to pass decisions on asylum requests in an expedited procedure, while thwarting all attempts to abuse rights, with full respect for all minimum rights of irregular migrants and asylum seekers, in accordance with the rules of the international law and the applicable standards.
7. The National Assembly endorses the recommendations the Protector of Citizens gave in the capacity of the National Preventive Mechanism to the competent public authorities with the aim of improving the position of persons deprived of liberty, i.e. to prevent abuse, and orders the competent authorities to implement these recommendations without delay, as well as to notify the National Assembly thereof in writing by 31 December 2014 at the latest.
8. This Conclusion is to be published in the "Official Gazette of the Republic of Serbia".
RS No. 72
Done in Belgrade, on 23 October 2014
NATIONAL ASSEMBLY OF THE REPUBLIC OF SERBIA
PRESIDENT
Maja Gojković
Pursuant to Article 8, paragraph 1 of the Law on National Assembly ("Official Gazette", No. 9/10) and Article 238, paragraph 5 of the Rules of Procedure of the National Assembly ("Official Gazette of RS", No. 20/12 - consolidated text),
On the Fourth Sitting of the Second Regular Session in 2014 held on 23 October 2014, The National Assembly hereby passes this
CONCLUSION BASED ON A REVIEW OF THE REPORT ON ACTIVITIIES OF THE NATIONAL PREVENTIVE MECHANISM FOR 2013
1. The National Assembly finds that in his report on the activities of the National Preventive Mechanism for 2013, the Protector of Citizens comprehensively presented the activities of the Protector of Citizens in the capacity of the National Preventive Mechanism within his scope of his powers under constitution and law and assessed the situation and the quality of exercise and protection of the rights of persons deprived of liberty, highlighting the necessary improvements of the situation and prevention of torture and other forms of abuse.
2. With regard to the assessment of the Protector of Citizens that the competent public authorities fail to comply with their duties in the fight against impunity for torture, that they do not always conduct timely and detailed procedures to determine whether the rights of persons deprived of liberty were violated, that individual responsibility for violation of these rights and responsibility for omissions in work and organization of work was apportioned to responsible persons only in few cases, as well as that few persons responsible for violation of these rights were punished, and particularly having in mind that the Protector of Citizens and the Constitutional Court identified certain cases of abuse, the National Assembly orders the competent public authorities to fully comply with their duties in the fight against impunity for torture, to take all necessary measures and activities to prevent abuse and, in accordance with the law, to conduct timely and detailed procedures to investigate all substantiated allegations of abuse and apportion subjective and objective responsibility and to punish those responsible.
3. With regard to the assessment of the Protector of Citizens that many existing detention rooms in police stations are not compliant with the minimum standards of the European Committee for the Prevention of Torture regarding necessary accommodation conditions, the National Assembly orders the Government to allocate necessary funds for construction or refurbishment of detention rooms in police stations in accordance with the applicable standards in budget proposal for 2015.
4. With regard to the assessment of the Protector of Citizens that the Instructions on Treatment of Arrested and Detained Persons are not compliant with the applicable regulations and standards and decisions of the European Court of Human Rights (use of physical restraint, presence of non-medical staff during physical examinations, lack of duty to install alarms, authorizations of control mechanisms etc.), which results in dilemmas for police officers regarding exercise of police authorities and divergent practices in their actions, the National Assembly orders the Ministry of Internal Affairs to make the Instructions on Treatment of Arrested and Detained Persons compliant with the applicable regulations, standards and decisions of the European Court of Human Rights.
5. Due to significant shortcomings, pointed out by the Protector of Citizens in his Report, regarding active individual and collective correctional work of correctional officers with convicts, work engagement of convicts and their education, use of a system of subsequent reclassification of convicts which enables convicts to progress into a more favorable correctional group in case of good behavior, preparation of convicts for release and establishing of cooperation with social welfare organizations, the National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve treatment of convicts in order to rectify the said shortcomings and emphasizes the duty to pass regulations for implementation of the law in accordance with the applicable standards without delay.
6. It is particularly important to amend regulations on enforcement of penal sanctions for organized crime without delay, in accordance with the recommendation of the European Committee for the Prevention of Torture, which assessed the existing penal enforcement system as borderline inhuman and degrading.
7. The National Assembly orders the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to improve its treatment of convicts in terms of provision of health care, in accordance with the applicable regulations and standards. This is based on the assessment of the Protector of Citizens that there are serious shortcomings in the provision of health care to convicts in penal facilities, particularly regarding the provision of necessary medicinal products and therapy, medical examinations after prison intake procedure, lack of unique medical examination protocols, failure to perform periodic medical examinations of convicts and daily medical examinations of patients, inclusion of non-medical staff, placement of convicts with mental disorders in regular prison regime, failure to submit compulsory periodic reports on health condition of convicts, sanitary and hygiene conditions in institutions, the quality of food, physical activities of convicts etc., stipulated by the Law on Enforcement of Penal Sanctions.
8. Taking into account that the Protector of Citizens repeated his assessments stated in all previous annual reports that competence for health care services in penal facilities should be transferred from the Administration for the Enforcement of Penal Sanctions of the Ministry of Justice to the Ministry of Health, which is one of the preconditions for efficient investigation of allegations of violent treatment of persons deprived of liberty, the National Assembly emphasizes it is necessary for the Government to consider this issue as soon as possible and propose to the National Assembly amendments to the relevant legal arrangements.
9. With the aim of ensuring more efficient and comprehensive control over the work of the Administration for the Enforcement of Penal Sanctions, the National Assembly advises the Ministry of Justice to consider the recommendations of the Protector of Citizens on activities that should be undertaken to separate the supervision unit from the Administration for the Enforcement of Penal Sanctions, so that the work of institutions and the Administration is overseen by the supervision unit as a separate organizational unit of the Ministry of Justice, and also to propose appropriate amendments of laws and other regulations in that regard.
10. The National Assembly endorses the recommendations the Protector of Citizens gave in the capacity of the National Preventive Mechanism to the competent public authorities with the aim of improving the position of persons deprived of liberty, i.e. to prevent abuse, and orders the competent authorities to implement these recommendations without delay and to notify the National Assembly thereof in writing by 31 December 2014 at the latest.
11. This Conclusion shall be published in the "Official Gazette of the Republic of Serbia".
RS No. 73 Done in Belgrade, on 23 October 2014
NATIONAL ASSEMBLY OF THE REPUBLIC OF SERBIA
Pursuant to Article 8, paragraph 1 of the Law on National Assembly ("Official Gazette", No. 9/10) and Article 238, paragraph 5 of the Rules of Procedure of the National Assembly ("Official Gazette of RS", No. 20/12 - consolidated text),
On the Fourth Sitting of the Second Regular Session in 2014 held on 23 October 2014, The National Assembly hereby passes this
CONCLUSION BASED ON A REVIEW OF THE REPORT ON ACTIVITIIES OF THE NATIONAL PREVENTIVE MECHANISM FOR 2013
1. The National Assembly finds that in his report on the activities of the National Preventive Mechanism for 2013, the Protector of Citizens comprehensively presented the activities of the Protector of Citizens in the capacity of the National Preventive Mechanism in the field of child rights.
2. With regard to the assessment of the Protector of Citizens that many children are still placed in residential social welfare institution because conditions have not been provided for their community care; that those children are excluded from the normal social environment for unacceptably long periods, and thus they do not acquire or over time lose social and other skills necessary for living outside the institutions; that financial and other living conditions in such institutions are not compliant with the applicable standards and that understaffing is a pressing issue; that the number of children placed in those institutions significantly exceeds the statutory maximum and that in many cases, contrary to regulations, children are placed together with adult users; and that the existing shortcomings of the institutional child care system display elements of inhuman or degrading treatment, the National Assembly orders the competent public authorities to intensify activities on deinstitutionalization, i.e. reduction of capacities of the existing residential social welfare institutions and their phasing out, while ensuring full community child care and providing comprehensive support.
3. With regard to the assessment of the Protector of Citizens that in residential social welfare institutions a number of children with mental disorders and/or intellectual disabilities are isolated, and having in mind the position of the UN Committee against Torture that isolation of persons with severe or acute mental disorder is not allowed, as well as the position of the UN Special Rapporteur on Torture that isolation of such persons, regardless of its duration, constitutes cruel, inhuman or degrading treatment, the National Assembly orders the competent public authorities to take all available measures to prevent residential social welfare institutions from isolating children with mental disorders and/or intellectual disabilities.
4. The National Assembly endorses the recommendations the Protector of Citizens gave to the competent authorities in the capacity of the National Preventive Mechanism with the aim of improving the position of convicted persons placed in the Juvenile Correctional Institution Valjevo, as well as users placed in the Centre for Children and Youth with Disabilities "Veternik".
5. This Conclusion shall be published in the "Official Gazette of the Republic of Serbia".
RS No. 74 Done in Belgrade, on 23 October 2014
NATIONAL ASSEMBLY OF THE REPUBLIC OF SERBIA
|
Report
by the Comptroller and Auditor General
Cabinet Office
Transforming government's contract management
Our vision is to help the nation spend wisely.
Our public audit perspective helps Parliament hold government to account and improve public services.
The National Audit Office scrutinises public spending for Parliament and is independent of government. The Comptroller and Auditor General (C&AG), Sir Amyas Morse KCB, is an Officer of the House of Commons and leads the NAO, which employs some 820 employees. The C&AG certifies the accounts of all government departments and many other public sector bodies. He has statutory authority to examine and report to Parliament on whether departments and the bodies they fund have used their resources efficiently, effectively, and with economy. Our studies evaluate the value for money of public spending, nationally and locally. Our recommendations and reports on good practice help government improve public services, and our work led to audited savings of £1.1 billion in 2013.
Cabinet Office
Transforming government's contract management
Report by the Comptroller and Auditor General
Ordered by the House of Commons to be printed on 4 September 2014
This report has been prepared under Section 6 of the National Audit Act 1983 for presentation to the House of Commons in accordance with Section 9 of the Act
Sir Amyas Morse KCB Comptroller and Auditor General National Audit Office
2 September 2014
Following revelations of G4S and Serco's overbilling, and weaknesses in contract management procedures in a December 2013 review, the government is starting a large change programme to improve how it manages its contracts.
© National Audit Office 2014
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10508 09/14 NAO
Contents
Key facts 4
Summary5
Part One
Government’s response to overbilling on major contracts 17
Part Two
The causes of contract management weakness 28
Part Three
Transforming contract management 38
Appendix One
Our audit approach 55
Appendix Two
Our evidence base 57
The National Audit Office study team consisted of: Emma Cole, Andrew Denney and Richard Lewis, under the direction of Joshua Reddaway.
This report can be found on the National Audit Office website at www.nao.org.uk
For further information about the National Audit Office please contact:
National Audit Office Press Office 157–197 Buckingham Palace Road Victoria London SW1W 9SP
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Twitter: @NAOorguk
Key facts
£40bn 60 34
spent by central government on procuring goods and services, 2013-14 (estimated)
contracts tested for overbilling had issues with billing to some extent
Summary
1 In November 2013 we set out how government was facing what we described as a crisis of confidence in its contracting of public services. Contracting out services is a useful tool to reform public services and improve value for money. However, we raised questions about competition in the market for government services and whether contractors' returns were transparent and their performance satisfactory. We also showed how government must improve oversight, control and assurance over contracted-out services.
2 Last year, a series of government contractor and contract management failures emerged. In particular, the Ministry of Justice announced in July 2013 that it had found significant overbilling in its electronic monitoring contracts with G4S and Serco dating back to 2005. The Ministry commissioned further reviews of their other contracts and the Cabinet Office did the same for the major G4S and Serco contracts across government. The Home Office and the Department for Work & Pensions also commissioned internal reviews of contracts with a range of contractors. In total, central government tested 60 contracts for overbilling and 73 for contract management practice.
3 The reviews found widespread problems in administering government contracts, including poor governance, record keeping and capacity issues. These findings echo our work on contracts and contract management dating back to 2006. The reviews recommended how the new Crown Commercial Service (CCS) and departments could improve contract management.
Scope of this report
4 This report looks at how government has responded to the findings about its weak contract management in its procurement of services:
* Part One
Sets out the findings of the government reviews and government's response.
* Part Two
Sets out the wider context and underlying causes of weaknesses in contract management.
* Part Three
Sets out our view of the way in which contract management needs to change, building on current government initiatives.
5 We are publishing an accompanying report: Transforming contract management in the Ministry of Justice and the Home Office. This shows a detailed example of these reforms and challenges in practice (Figure 1).
Figure 1
Our two reports on contract management
The wider context and
underlying causes
What needs to be done
Ministry of Justice
The problems with contract
management and the immediate
government response
Home Office
Cross-government report: High-level findings across government
Home Office and Ministry of Justice report: What this means for Home Office and Ministry of Justice
Source: National Audit Offi ce
Key findings
Response to overbilling
6 The Cabinet Office, HM Treasury, and the Ministry of Justice reacted strongly in handling G4S's and Serco's overbilling. However, government was constrained in its actions and acted as if the firms were too important to fail: their failure could create widespread disruption to public services and government wanted their ongoing participation in competitions. They referred both companies to the Serious Fraud Office (SFO), whose investigations are still ongoing. They demanded that both companies change, and both companies proposed formal processes of 'corporate renewal'. These included changes to management, organisational structures, ethical training and controls. There was no official ban on letting new contracts to the companies, but departments had to get the Minister for the Cabinet Office to approve new contracts and the companies withdrew from several tender processes.
7
7 Government secured payments of £179.4 million from the contractors related to overbilling issues. Government negotiated payments of £104.4 million from G4S and agreed £68.5 million from Serco covering rebates, investigation costs and interest relating to the overbilling on electronic monitoring. Following reviews of further contracts, G4S paid government £4.5 million in respect of billing issues on 2 court facilities management contracts, which were also referred to the SFO. Serco paid £2.0 million relating to its prisoner escorting and custodial services contract, which has been referred to the City of London Police.
8 Government's reviews provided evidence of further billing or reporting errors
across government contracts, though no evidence of deliberate wrongdoing. The government reviews were thorough, but only 60 central government contracts were tested for overbilling, of which some 34 had issues in the amount billed. These issues included both under- and overbilling. Given the flaws in contract management controls across government, it is in our view probable that other instances of overbilling have occurred across government's wider contract portfolio. We cannot be sure of the extent of such overbilling or whether it is material.
Problems with contract management
9 The reviews found widespread problems with how government manages its service contracts. As well as testing for overbilling, 73 contracts were tested against the 8 areas of the NAO's 2008 good practice framework for contract management. 1 Issues were found on all 8 areas, for example:
* Planning and governance (issues on 38 out of 73 contracts tested) Departments lack visibility of contract management at board level and lacked senior-level involvement.
* People (40 issues)
Government does not have the right people in the right place for contract management. There were gaps between the numbers and capability of staff allocated to contract management and the level actually required.
* Administration (39 issues)
Contract management is not operating as a multi-disciplinary function. There was often limited interaction between finance, commercial and operational contract management functions.
* Payment and incentives (48 issues)
Government is not fully using commercial incentives to improve public services. Levels of payment deductions allowed by contracts are often insufficient to incentivise performance. Open-book clauses were rarely used.
* Managing performance (50 issues)
Contractual performance indicators are often weak and government is too reliant on data supplied by contractors.
* Risk (47 issues)
Government does not have sufficient understanding of the level of risk it is retaining on contracted-out services. None of those in the cross-government review shared risk registers with the contractors to ensure all understood who was managing what.
* Contract development (50 issues)
Departments are paying insufficient attention to the impact of contract change. For example, departments made changes at operational level in isolation from other service areas. Systems for maintaining up-to-date versions of contracts remain weak.
* Managing relationships (31 issues)
Not all departments have had a strategic approach to managing supplier relationships. Senior management engagement with suppliers has not been widespread across government. A lack of meaningful incentives for innovation can inhibit shared approaches to problem solving and service improvement.
10 Poor contract management is a long-standing issue. By the middle of the last decade there was a large number of mature contracted-out services across government. Our work started to highlight widespread problems with contract management. In our 2008 cross-government report on the management of service contracts we said that no commercial director or head of procurement rated the resources allocated to managing major contracts as 'good'. We highlighted poor risk management, inadequate performance measurement and limited use of performance incentives. 2 Since then, we have reported on many contracts with weak contract management. These weaknesses have far-reaching consequences, including:
* Fraud and error
For instance, better scrutiny of payments and understanding of the contract could have prevented the overbilling found in the Ministry of Justice's contracts referred to authorities.
* Not managing risk
For instance, the Ministry of Defence's failure to provide ICT infrastructure critical to the success of the Army's recruitment contract with Capita impacted on recruitment activities and increased costs. 3
2 Comptroller and Auditor General, Central government's management of service contracts, Session 2008-09, HC 65, National Audit Office, December 2008.
3 Comptroller and Auditor General, Army 2020, Session 2014-15, HC 263, National Audit Office, June 2014.
* Risk of contractual dispute
For instance, ambiguities in the Home Office's immigration removal centre contracts meant that disagreements were difficult to settle. 4
* Performance deductions are not always enforced
For instance, the Home Office did not enforce penalties for defects in asylum seeker accommodation as it felt that the contracts were at an early stage. 5
* Not understanding how contracts meet policy objectives
For instance, poor senior oversight meant the risk profile on the Department for Work & Pensions' Work Programme was changed in the contractors' favour. 6
* Use of commercial levers
For instance, pressures to find cost savings led HM Revenue & Customs (HMRC) to trade away some of its negotiating power and hindered its ability to get strategic value from its long-term Aspire ICT contract. When negotiating cost savings in response to successive funding settlements, HMRC conceded many of its commercial safeguards through major renegotiations of the contract between 2007 and 2009, including the right to share in supplier profits when they were higher than target and the right to compete services. HMRC estimates it achieved savings of £750 million through such negotiations. Since 2012, HMRC has negotiated some of these commercial controls back. 7
11 Previous attempts to improve contract management have not delivered
sufficient change. Government has sought to improve its general commercial capability since the early 1990s, most notably with the Gershon reforms from 1999 and the more recent efforts by the Cabinet Office. We published a good practice framework for contract management with our 2008 report 8 and the Committee of Public Accounts recommended how to improve contract management in 2009. The Office for Government Commerce (then part of HM Treasury) accepted this, but it failed to influence departments and focus drifted away. More recently, the Cabinet Office has focused on using government's collective buying power to make savings, rather than improving individual departments' contract management.
4 HM Government, Cross Government Review of Major Contracts, December 2013.
,
5 Comptroller and Auditor General, COMPASS contracts for the provision of accommodation for asylum seekers Session 2013-14, HC 880, National Audit Office, January 2014.
6 Finding from cross-government review.
7 Comptroller and Auditor General, Managing and replacing the Aspire contract, Session 2014-15, HC 444, National Audit Office, July 2014.
8 National Audit Office, Good practice contract management framework, December 2008.
12 The underlying causes of problems in contract management go beyond poor administration and lapsed awareness. Although it is difficult to generalise across 17 departments, from our collective experience of looking at government contracts, we have identified 4 root causes of these problems with contract management:
* Government fails to recognise the value of contract management. The purpose of contract management is to use commercial mechanisms to improve services and reduce costs. Too often contract management has been seen as delivering the deal that was agreed when the contract was signed. This has meant that contract management has been seen as a way to avoid things going wrong, rather than unlocking value. Government needs to recognise that value is achieved over the life of the contract. This means designing policies it has the capability to deliver, planning for the contract management stage earlier, and paying it more attention.
* Senior managers in central government departments have not taken contract management seriously. Central government has yet to adapt to the commissioning role it aspires to. Departments have not adapted governance to the expanding role of government contracting: they have lacked the basic infrastructure of oversight, senior engagement, challenge and scrutiny. Systems of governance have focused on approving new projects, as if government's responsibility ends when the contract is signed.
* Senior managers have not demanded visibility over their contracts. Senior managers have not always acted as if they recognised that departments are responsible and carry the risk for the services they have contracted. Managers have rarely demanded combined portfolio information to scrutinise and challenge operational contracts. Senior managers have often only engaged on contracting issues to firefight problems. As a result, they have put little pressure on teams to improve the information they rely on to manage the contract.
* Government has a permanent disadvantage in commercial capability. There have been many initiatives aimed at improving commercial capability in the past and more improvement is possible. Traditionally, the procurement profession has had a low status in the civil service, while contract management has been seen as low status within the procurement profession. Cabinet Office estimates government as a whole deploys less of its specialist commercial resources on contract management than the private sector. The profession has lacked the sway over colleagues to implement good practice, and struggled to attract the best talent and skills. Furthermore, without a way to measure the value of this deployment, contract management has been vulnerable to administration cuts and under‑investment. Yet it is doubtful that the government can improve its capability to be able to have the best contract managers on all its contracts. It will not pay either to bring in or retain commercial experts to match the combined expertise of its contractors.
Government's response
13 The Government is taking the findings of contracting problems very
seriously. Since autumn 2013, accounting officers and senior commercial officials have met regularly to oversee the reviews and the resulting change programmes. The group is known as 'Markets for Government Services (Officials)' (MGS(O)) and is led by the Head of the Civil Service and the Cabinet Secretary. The group is coordinating government's strategic response including market development, contingency plans for supplier failure and transparency (Figure 2). Its focus on contracting provides a window of opportunity to embed a sustainable change in how government manages providers.
Figure 2
The government's response
The government, led by the 'Markets for Government Services (Officials)' group has taken the findings very seriously. In response it has:
* Secured payments of £179.4 million from G4S and Serco related to overbilling issues. They also demanded that both companies change, and both companies proposed formal processes of 'corporate renewal'.
* Undertook a number of reviews across government to test for overbilling and assess the quality of contract management.
* Asked all departments to put in place plans to improve their contract management. These change programmes are currently underway.
* Launched commercial capability reviews to test how far departments have embedded changes.
* Increased its focus on some of the underlying issues, by:
* Examining how government can maintain and further develop competitive markets for government services, to encourage new entrants through both overall market design and specific procurement competitions.
* Starting to work with independent groups such as the CBI to review the transparency around procurement competitions, ongoing contract performance and the use of open book.
* Starting to test departments' contingency planning so government is better-placed to deal with supplier failure.
* Improving data on government's strategic suppliers and managing its relationships more strategically as a single customer through the use of crown representatives.
* Further reforming the public procurement process to speed up procurement and make procurement more accessible to SMEs.
* Improving government's overall commercial capability through the establishment of the crown commercial service and initiatives to improve commercial recruitment, training and development.
Source: Interviews with offi cials and review of MGS(O) papers
14 Departments have launched significant change programmes to improve how they manage contracts. The Cabinet Office asked all departments to put in place plans to improve their contract management by February 2014. All accepted the need to improve. Our accompanying report looks in detail at the changes under way in the Ministry of Justice and the Home Office. Together with the Department for Work & Pensions and the Ministry of Defence, they are the most advanced in their change programmes. The Cabinet Office and HM Treasury are undertaking commercial capability reviews on departments to test how far departments have embedded these changes.
15 The Cabinet Office is also trying to improve its management of common goods and services. The CCS was launched on 1 April 2014. Departmental commercial staff and responsibility for procuring certain categories of goods and services have already started to move across to the new service. Concentrating commercial expertise in a single organisation is likely to help with general capability constraints. However, moving staff to CCS may make departmental reform more complicated in the short term. Furthermore, the CCS is still developing its own capability, with recent changes to its senior management and governance, and new systems and procedures being introduced to manage contracts.
Transforming the management of contracts
16 The current reforms are going in the right direction. Below we set out the steps we see as important to transforming the management of contracts and how current initiatives are contributing to this.
Enabling a commissioning approach
17 Government needs to put in place the systems and processes to enable the effective oversight and management of contracts. A common understanding of the structures and systems is emerging from the current reforms under way within departments. In particular:
* Governance
Departments are improving their governance of operational contracts. Departments are appointing senior champions for contract management; clarifying senior responsible owners and lines of escalation; and having a senior forum to challenge, scrutinise and oversee working contracts and liaise with strategic suppliers.
* Basic contract information
Departments do not have information systems that combine the needs of finance (paying contractors), procurement (planning for and conducting bidding), or contract management (understanding performance, costs, the commercial position and the agreed contract). A few larger departments are still putting in place contract registers. We have yet to see a system that shows departments their current contracts including all changes and contractor communications. The Cabinet Office is setting up a common set of data requirements for government contracts. It will re-launch the Contracts Finder database by October 2014, which is designed to meet procurement needs. It also intends to provide a contractor relationship management system for the new CCS by the end of 2014. However, this plan is undeveloped.
* Integrated structures
Departments are taking different approaches to integrating contract management within the business. Some are building end-to-end commercial teams that follow the contract through its life. Others are building specialist commercial teams to focus on each project stage. Some departments are also clarifying how the commercial and operational teams will manage the contract.
* Integrated processes
Contract management needs to be integrated into the commissioning process. This means designing policies and contracts with a view to the contract management capability available and any flexibility required. The Cabinet Office has updated its guideline standard operating procedures to ensure contract management is mobilised earlier.
Understanding and influencing suppliers
18 Government needs to ensure responsibility for the delivery of contracted-out services and the control environment rests with contractors. Government needs to create a situation where it can rely on its contractors even when it is not deploying its best contract managers to oversee them. Senior executives within contractors should accept, through the contract, the personal accountability for delivery that senior responsible owners accept within the civil service. Such a system would have 3 features:
* Intelligence on strategic suppliers
The example of G4S and Serco shows how government needs to be far more inquisitive about the strategy, internal operations and culture of its strategic providers. Where government is reliant on strategic contractors, it is reasonable that it has very clear expectations about how that organisation behaves and manages itself. Information is readily available through sources such as public announcements, investor information and the work of market analysts. Skilled analysis, collation and sharing of this information will improve the intelligence currently provided to the crown representatives who lead cross-government negotiations with strategic suppliers.
* Transparency
The Cabinet Office and the Confederation of British Industry (CBI) are working together to produce a joint set of principles for improved transparency over contracting. Internal audit divisions are increasing their work devoted to contract management and starting to think about how to assure the controls for strategic providers. The Department for Work & Pensions, for example, is requiring new contractors to commission external reviews to give assurance on the contractor's controls. These initiatives need to be brought together into an integrated system of control, transparency and assurance. Departments should set out the objectives of the control environment, and use transparency and assurance mechanisms to ensure compliance.
* Incentives
Government needs to be better at enforcing its contracts and deducting penalties. We see post-contract audit reviews, gain-share arrangements and profit claw‑back playing a greater role in ensuring incentives are aligned and value is not lost in adversarial behaviour. Government and industry now accept that open-book accounting needs to be widely used to build trust and ensure incentives are aligned. However, there are a lot of details to be worked out. The Cabinet Office is undertaking pilots to establish how its regular use will be implemented. This needs to draw on knowledge from departments such as the Ministry of Defence which have experience in this area. We would expect government to develop data analytics to compare costs and margins between contracts.
Making the most of limited commercial capability
19 Government needs to find ways of making the most of its commercially experienced people. There needs to be a balance struck between departments retaining sufficient capability to manage their contracts day-to-day and the role of the centre in targeting resources where needed. The Cabinet Office's current initiatives are at an early stage, but are likely to have a positive impact:
* An enhanced role for commercial staff
The Cabinet Office and departments recognise that they have focused too much on procurement, and neglected the scoping and operational stages where they can add most value. It is not clear to what extent the current commercial workforce has the right skills. Departments need to consider carefully how they manage any restructuring. However, the new role is likely to be more exciting and influential within the civil service. We hope that it will improve staff engagement and make the profession more attractive to those starting their career or coming from outside the civil service.
* Central support
There is a growing central capacity to support departments. The Crown Commercial Service's complex transactions team provides support to departments with complex negotiations or commercial issues. Crown representatives support departments on negotiations with strategic suppliers. Infrastructure UK within HM Treasury provides supports for projects involving private finance. The Cabinet Office is also establishing a common data set for contracts across government (paragraph 17 above) and has issued guidance on how contracts can ensure that procurement information can be shared within government. 9 Better sharing of information on contracts would allow departments and the centre to make better use of a central shared capability.
* Structured professional development
Commercial skills are a core part of The Civil Service Reform Plan 10 and the accompanying capabilities plan. The CCS is taking on more responsibility for the development and deployment of skills and experience across the profession. It is recruiting centrally for senior posts, setting up a commercial fast-stream and apprenticeship scheme, developing links with universities, putting in place an interchange programme with industry, identifying a framework of skills and experience for staff to attain, and developing core training. Commercial skills also forms part of the Major Projects Leadership Academy syllabus, while departments are also developing their own extra training.
9 Cabinet Office, Procurement Policy Note – Information sharing in Government procurement exercises, available at: www.gov.uk/government/publications/procurement-policy-note-0114-sharing-information-withingovernment, February 2014.
10 HM Government, The Civil Service Reform Plan, June 2012, available at: www.gov.uk/government/organisations/civilservice-reform
Value for money conclusion
20 The government will not get value for money from its contracts until it improves contract management. The Cabinet Office, HM Treasury and major spending departments have recognised the scale of the issue and have responded accordingly. The major spending departments have launched significant change programmes to improve their contract management. The Cabinet Office is strengthening its role in supporting the commercial profession, managing collective spending on common goods and services and supporting departments. We believe this represents an opportunity to bring about needed change. Nonetheless, there is a lot still to be worked out. In our view there needs to be widespread change in the culture of the civil service and the way in which contractors are managed. There needs to be more emphasis on a commissioning approach, transparency over the contractors, use of open-book to align incentives and a targeted focus of the government's commercial capability.
Recommendations
21 We have set out above the transformation needed in government's management of its contracts. We make 2 recommendations to the centre of government (HM Treasury and the Cabinet Office) aimed at ensuring that these come about:
a The Cabinet Office should set up a cross-government programme to improve contract management, building on the work of the Markets for Government Services (Officials) group. This will help to formalise existing arrangements and help to make improvement plans more sustainable. Departments' programmes are not joined up and central departments have not coordinated a formal programme, supported by appropriate management techniques. Given the culture change required and the need to sustain efforts across government, the programme should be part of the Major Project Authority's portfolio. The Cabinet Secretary, the Head of the Civil Service and government's Chief Procurement Officer should champion better contract management, especially to senior managers outside the commercial function.
b HM Treasury and the Cabinet Office should continue to use commercial capability reviews to ensure reforms are embedded. Our 2008 good practice framework gives a reasonable guide to the basic administration and governance every contract needs. The current departmental reforms are creating a common understanding of good practice in the organisational governance, systems and structures, information and capability needed for effective contract management (Figure 5 on page 25). Given current progress, we would expect all departments to have these in place by the end of 2015. The commercial capability reviews should also cover the Crown Commercial Service (CSS). The CCS needs to integrate its contract management processes with these new arrangements within departments. The Cabinet Office should measure the CCS's success by its ability to meet departments' needs.
Part One
Government's response to overbilling on major contracts
1.1 This part of the report sets out government's initial response to the discovery of overbilling. It looks at:
* government's contract management reviews;
* the central response to the reviews, including action on G4S and Serco; and
* the role of the new Crown Commercial Service (CCS).
Government reviews of overbilling and contract management
Instances of overbilling and error
1.2 In July 2013 the Ministry of Justice announced that it had found significant overbilling in its electronic monitoring contracts with G4S and Serco dating back to 2005. The Home Office let contracts to G4S and Serco for electronic monitoring in 2005, which were transferred to the Ministry of Justice in 2008. 11 The contracts were due to end in April 2013. Ministry staff working on the competition for new contracts discovered data anomalies and separately a whistleblower reported their concerns about operating practices at G4S. The Ministry commissioned PwC to undertake a forensic audit of the contracts in May 2013. The Secretary of State later announced that he was referring the matter to the Serious Fraud Office (SFO), whose investigation is ongoing. 12
11 Comptroller and Auditor General, The Electronic Monitoring of Adult Offenders, Session 2005-06, HC 800, National Audit Office, February 2006.
12 Further details on the history of these reviews are included in our report: Comptroller and Auditor General, The Ministry of Justice's electronic monitoring contracts, Session 2013-14, HC 737, National Audit Office, November 2013.
1.3 Departments undertook a number of separate reviews to determine whether there was any further overbilling and assess the quality of contract management:
* The Cabinet Office announced a review of central government contracts with G4S and Serco on 11 July 2013 (the cross-government review). 13 It commissioned PwC and Moore Stephens to audit 28 of the largest contracts held with G4S and Serco across 8 central government bodies.
* The Ministry of Justice and the Home Office decided to further review a selection of their major contracts with various contractors. 14
* In June 2014 the Department for Work & Pensions (DWP) commissioned its own internal review on its management of 15 of its major contracts. This did not look for overbilling; 5 other DWP contracts had already been tested as part of the cross‑government review.
1.4 The cross-government 15 and Ministry of Justice 16 reviews reported publicly on 19 December 2013. The other reviews reported their findings internally. The reviews were thorough. Those that looked at overbilling examined a large enough sample of invoices to give reasonable assurance that contractors had provided the service and the amount billed agreed with the contract. Across all the reviews, 60 different contracts were tested for overbilling and 73 were tested for contract management control (Figure 3).
1.5 The cross-government review did not find evidence of deliberate wrongdoing by Serco or G4S. It found some instances of small unexplained discrepancies between amounts billed and the underlying contract. These included under- and overbilling thought to be through error rather than deliberate intent.
1.6 The Ministry Of Justice's review found 3 possible instances of wrongdoing. Early findings from the Ministry's review suggested that Serco staff may have falsified data on prisoner arrival times. The Ministry and Serco jointly referred the matter to the City of London Police on 28 August 2013. 17 The Ministry also referred 2 G4S contracts for facilities management in courts to the Serious Fraud Office (SFO) on 19 December 2013. 18 The Home Office review found no evidence of deliberate wrongdoing, but did find minor billing errors and weaknesses with the control environment.
1.7 Of the 60 contracts tested, some 34 had issues with billing, including instances of underbilling and lack of documentation to determine whether the service had been provided.
13 Available at: www.gov.uk/government/news/review-of-government-g4s-and-serco-contracts, 11 July 2013.
14 Further details of the Home Office and Ministry of Justice reviews are in our report: Comptroller and Auditor General, Transforming contract management in the Ministry of Justice and the Home Office, Session 2014-15, HC 268, National Audit Office, September 2014.
15 HM Government, Cross Government Review of Major Contracts, December 2013.
16 Ministry of Justice, Contract management review, December 2013.
17 Available at: www.gov.uk/government/news/moj-audit-of-serco-contracts-prison-escort-services
18 G4S website, Investor News announcement, 19 December 2013.
Wider contract management problems
1.8 The reviews also identified a range of contract management weaknesses across government (Figure 3). Contracts were tested against the 8 areas of our 2008 good practice framework and problems were found across all areas. Contract management weaknesses and their causes are examined in more detail in Part Two of this report.
Figure 3 The reviews found issues against all areas of our framework
Contract management framework area
Number of contracts
Weaknesses which create material risk of overbilling
Other weaknesses
No issues detected
Notes
1 Includes the cross-government review (28 contracts with G4S and Serco, all of which were tested for overbilling), the Ministry of Justice (17 reviewed, of which 7 were also tested for overbilling), the Home Office (13 additional to the cross-government review, of which 5 were tested for overbilling) and the Department for Work & Pensions (15 contracts, which were only tested against the framework). This does not include a further 20 Ministry of Justice contracts tested only for overbilling.
2 In total 73 contracts (with various contractors) were reviewed against the NAO framework and 60 were tested for overbilling.
Source: National Audit Office analysis of government reviews of contract management
1.9 It is likely that there is further overbilling in other contracts across government. The reviews found particular weaknesses in managing performance. These include weak verification of information provided by contractors. For example, in one contract the Ministry of Defence's poor record-keeping meant the reviewers could not verify whether a contractor provided the number of staff billed for, although the service was satisfactory. The reviews tested billing in 60 contracts and controls in 73 contracts, but central government has well over 100,000 contracts.
1.10 Weaknesses in contract management have far-reaching consequences for departments:
* Fraud and error risk
Without basic scrutiny of payments and performance, departments rely on the contractor to interpret the contract correctly, and meet the standards the public expects. For instance, better scrutiny of payments and understanding of the contract could have prevented the overbilling found in the Ministry of Justice contracts referred to authorities.
* Not managing risk
Departments often do not understand what the risks on their contracts are, or who bears them. They then do not manage the risks properly. For instance, the Ministry of Defence's failure to provide ICT infrastructure critical to the success of the Army's recruitment contract with Capita impacted on recruitment activities and increased costs.
* Risk of contractual dispute
Without good change control, departments risk not knowing what the contract requires the supplier to do. Without both parties understanding the contract the relationship with the supplier suffers, potentially leading to disagreements. For instance, ambiguities in the Home Office's immigration removal centre contracts meant that disagreements were difficult to settle, often to the contractors' favour.
* Performance deductions are not always enforced
For instance, the Home Office did not enforce penalties for defects in COMPASS asylum seeker accommodation as it felt that the contracts were at an early stage. Also, as the contractors could pass the penalties down the supply chain, the Home Office felt enforcing penalties may have threatened subcontractors' financial stability and led to overall service failure.
* Not understanding how contracts meet policy objectives
Senior staff do not always understand what their contracts are achieving, which leaves departments unable to shape contracts and contractual incentives to their needs or work with contractors to get the required results. For instance, poor senior oversight meant the risk profile on the Department for Work & Pensions' Work Programme was changed in the contractors' favour.
* Use of commercial levers
Absent data, or limited scrutiny of performance data, means departments do not understand how a service is provided, or how to challenge poor performance. Without market testing, departments can be locked into inflexible or expensive contracts which they cannot revise to reflect innovation or learning from the outside world. Not using performance incentives means that departments do not challenge poor performance. For instance, pressures to find cost savings led HM Revenue & Customs (HMRC) to trade away some of its negotiating power and hindered its ability to get strategic value from its long-term Aspire ICT contract. When negotiating cost savings in response to successive funding settlements, HMRC conceded many of its commercial safeguards through major renegotiations of the contract between 2007 and 2009, including the right to share in supplier profits when they were higher than target and the right to compete services. HMRC estimates it achieved savings of £750 million through such negotiations. Since 2012, HMRC has negotiated some of these commercial controls back. 19
Recommendations from the cross-government review
1.11 The cross-government review made 8 recommendations to improve contract management. The recommendations required action from both departments and the new central Crown Commercial Service (Figure 4 overleaf and paragraphs 1.17 to 1.20).
The central response to the contract management reviews
Senior leadership across government
1.12 In October 2013 the Chancellor of the Exchequer asked the Head of the Civil Service and the Cabinet Secretary to chair a group, 'Markets for Government Services (Officials)' (MGS(O)). 20 The new group would coordinate the government response to the G4S and Serco revelations. The group comprised accounting officers from the major spending departments and senior officials from the Cabinet Office and HM Treasury. Its role has evolved:
* Between October 2013 and February 2014 MGS(O) met weekly to coordinate the government's settlements with G4S and Serco.
* Since February 2014 MGS(O) has met monthly to coordinate the government's strategic response to market supply and development; contingency planning; commercial capability; strategic supplier management; government relations with ICT suppliers; strategic planning for ICT contracts; and transparency.
19 Comptroller and Auditor General, Managing and replacing the Aspire contract, Session 2014-15, HC 444, National Audit Office, July 2014.
20 Officially, the 'ad hoc officials committee on markets for government services', under the ministerial Cabinet sub‑committee 'markets for government services'.
Figure 4
1.13 MGS(O) includes the accounting officers from all the main departments involved. Each individual accounting officer remains responsible for their own department's decisions. MGS(O)'s initiatives are not part of a programme and do not include management techniques such as an integrated plan, budget, or benefit realisation. HM Treasury or the Cabinet Office (including the new Crown Commercial Service) lead each initiative, and departments manage their own change management programmes. The Cabinet Office Board separately oversees the Crown Commercial Service.
Negotiations with G4S and Serco
1.14 The members of MGS(O) took a robust approach in negotiations with G4S and Serco. However, government was constrained in its actions and acted as if the firms were too important to fail: if either contractor walked away it would cause severe disruption to public services and would threaten government's ability to have competition across several policy areas. Furthermore, government could not terminate its £1.8 billion a year of contracts with G4S and Serco without paying significant damages and there were not well-developed contingency plans to prevent severe disruption to public services. Under EU law, government could not easily 'blacklist' the contractors and stop them from bidding for contracts. However, it could put significant political and reputational pressure on the contractors to demand the following:
* Significant 'corporate renewal'
Including replacing senior managers, restructuring and new governance procedures, new ethical training and greater transparency. G4S and Serco separately prepared corporate renewal programmes. HM Treasury appointed Grant Thornton to assess the sufficiency of the respective programmes and to monitor their initial implementation.
* Financial settlement
In total, across the contracts referred to authorities, G4S and Serco have paid the government £179.4 million. 21 This represents the total amount overbilled plus some of the previously recognised profit and reimbursement of government costs for the investigation. The SFO and police investigations are ongoing.
21 Serco has paid £68.5 million relating to electronic monitoring and £2.0 million for prisoner escorting. G4S has paid £104.4 million relating to electronic monitoring and £4.5 million on court facilities management. Sums comprise rebates, interest and payment of government investigation costs. These amounts do not include VAT, which will be repaid but then reclaimed from HMRC.
Central monitoring of departments' responses to the cross‑government review
1.15 In October 2013 the Cabinet Office wrote to all central government departments asking them to provide assurance on their contract management capability. The cross‑government review subsequently required departments to set out plans by March 2014 for how they would improve their contract management. All departments have submitted their plans except HM Treasury, which was not asked to submit a plan as it has few operational contracts. All accepted the need for improvement. The major spending departments – the Department for Work & Pensions, the Ministry of Defence, the Home Office and the Ministry of Justice – are the most advanced in their change programmes. We have published a detailed review of the responses of the Home Office and the Ministry of Justice in our accompanying report. 22 Emerging best practice in cross-organisational contract management is shown in Figure 5.
1.16 HM Treasury and the Cabinet Office are undertaking commercial capability reviews of all departments. This will allow central government to check progress on enhancing commercial capability, including on contract management. The first reviews have begun with the Ministry of Justice and the Home Office.
The role of the new Crown Commercial Service
1.17 In April 2014 the Cabinet Office formed the Crown Commercial Service (CCS). The CCS is now the central body to help departments buy common goods and services such as facilities management, consultancy and travel. The CCS replaces the Government Procurement Service and incorporates parts of the Cabinet Office focused on commercial policy. It aims to become government's centre of expertise for commercial issues and help departments to:
* improve their commercial skills;
* resolve complex contracting issues;
* improve data and systems for contracting;
* buy common goods and services;
* support the crown representatives 23 to manage government's strategic supplier relationships; and
* implement the recommendations of the cross-government review of contract management.
22 Comptroller and Auditor General, Transforming contract management in the Ministry of Justice and the Home Office, Session 2014-15, HC 268, National Audit Office, September 2014.
23 These are senior people brought into government from industry with experience of commercial relationships. They manage the relationship with strategic suppliers for government as a whole.
Figure 5
Departments need the right support for effective contract management
The following is based on the emerging best practice from departments' current reforms. It sets out the organisational architecture necessary to support good contract management as defined by our 2008 good contract management framework. 1
Governance
Visibility
Governance and accountability will be more effective if:
* the senior leadership team has clearly defined responsibilities for championing contract management across the organisation;
* a senior management forum scrutinises and challenges contract teams to continuously improve;
* senior staff manage relations with key suppliers, assisted by both commercial and operational staff;
* departments allocate contract management and oversight resources to individual contracts, based on operational risk to the organisation;
* clearly defined systems of problem escalation support senior engagement at a level that mirrors the contractor;
* internal audit skills and capacity are sufficient to give the accounting officer assurance that contract management is effective. Internal audit work on contract management is proportionate to the risk; and
* commercial directors retain control of commercial levers. For instance, penalties should always be applied unless the commercial director signs off that there is good reason not to.
Integration
Contract management will be well-integrated into the business when:
* contract management is recognised as a cross-organisational competence, supported by policy, operations, finance, legal, human resources and commercial functions;
* the contract is led by an owner within the business, who ensures the contract is aligned with service user needs. Commercial and other functions then support the contract manager and hold them to account;
* the contract management approach and resources are planned during the approval of the procurement. For example, they should be included in the business case;
* lessons from contract management are captured and fed back into policy and commissioning design; and
* contracts are reviewed periodically, so they meet business needs. Change management systems and governance reflect the likely pace of business change.
Departments could improve their use of contract information if:
* information to manage the contract is stored in an integrated information system. This includes financial, performance, risk and project management information, information about the contract, supplier information including correspondence, and vital guidance materials;
* contract managers share contract risk management strategies within the organisation and with suppliers;
* departments review and verify performance data in a way which is commensurate with contract risk;
* cost data is used to ensure costs are competitive and that incentives are aligned to reduce costs; and
* contract data is aggregated and reported clearly to support senior management scrutiny of the contract and its risk.
Capability
Departments will have made best use of their resources when:
* contract management skills and roles are defined and understood with regular skills audits of commercial and operational staff;
* resources and expertise are allocated by risk, and the return on investment for resources deployed is understood;
* professional development for contract managers is aligned with the cross-government contract management profession, with tailored development for specific contexts where required;
* contract management staff are incentivised through objectives and performance management to continuously improve contracted services; and
* senior contract management staff can challenge senior internal and contractor staff on an equal basis.
Note
1 National Audit Offi ce, Good practice contract management framework, December 2008.
Source: National Audit Offi ce analysis of contract management good practice
1.18 Departments have started transferring procurement staff to the CCS. The CCS expects to have some 1,050 procurement staff managing an estimated £14 billion of spend on behalf of departments by April 2018. The transfer will proceed in phases starting with 4 'trailblazer' departments: the Department for Communities and Local Government, the Department for Transport, the Ministry of Defence and the Department for Work & Pensions. The first has already transferred most of its procurement staff to the CCS.
The challenges faced by the Crown Commercial Service
1.19 The Crown Commercial Service (CCS) is a new organisation with ambitious plans to change how central government buys some £14 billion of common goods and services (35% of the estimated £40 billion spent on procurement). In November 2013 we reported the Cabinet Office's ambitions for central government may not be matched by the right resources, capability and information. 24 The creation of the CCS was designed to strengthen its governance over commercial issues. It is in the process of developing its own capability, and has made some progress. It:
* gained HM Treasury approval for its business case in March 2014 and refreshed it again in July;
* appointed a new management team below the Accounting Officer and is seeking a new non-executive chair;
* appointed a new head of contract management, who is introducing new operating procedures for its own contract management;
* recruited new staff with 118 external recruitments; and
* started to review the way that it communicates with the commercial profession and departments.
1.20 Once common goods and services are transferred to the CCS, departments will retain responsibility for the day-to-day management of the service (Figure 6). There is a risk, as with all central buying functions, that the commercial function in CCS will become too remote from the end-user and day-to-day manager. Departments will thus need to 'contract manage' the CCS as a key supplier. CCS managers are keen to promote a service culture and the CCS is putting in place memorandums of understanding with each department as it transfers in. These set out mutual responsibilities, and will enable departments to influence the CCS's performance by withholding fees if the service is not delivered to the required standard. CCS has also established business partners for each department whose responsibility it is to ensure that the CCS meets departments' needs.
Figure 6
After transferring their functions, departments will need to work with the Crown Commercial Service (CCS)
Departments need a
retained
commercial function
to act as
an intelligent client to manage the
relationship with CCS
Department business:
generates
need for a contract, and receives
routine performance information
Contract principal:
contracts are
legally between the supplier and a
department with CCS as agent
Goods received
by departments
Payment
is made by departments.
Departments retain the budget and
accountability for the spend
Source: National Audit Offi ce
Functions retained by departments
Functions transferred to CCS
A
CCS business partner
manages
the relationship with departments
Supplier relationship
including
complaint resolution and innovation
Data analysis
to optimise
buying patterns
Transactions:
negotiating
frameworks and using them
(call-off)
Category management
CCS will manage four categories:
people, buildings, ICT and
corporate services
Invoice matching
Part Two
The causes of contract management weakness
2.1 This part of the report sets out the growth in importance of contract management and the persistent problems government is experiencing in this area. It then sets out our commentary on the causes that underlie these problems.
Contract management has grown in importance over the last 2 decades
2.2 Since the 1990s central government has increasingly sought to involve the private sector in providing public services (Figure 7 on pages 30 and 31). Government:
* launched the private finance initiative (PFI) in 1992;
* started to outsource administration, such as ICT, call centres and pensions administration from the mid 1990s; and
* towards the decade's end, started to contract-out services such as prisons, electronic tagging and medical assessments.
2.3 We reported on these trends in 1999. We said that contract management had become more important as contracts moved from simple fixed-price deals to more complex contracts with performance incentives, requiring tighter performance monitoring. 25
2.4 By 2005 there were mature contracts across many parts of government. We started to notice that some teams managed contracts particularly well, but many did not. Our 2006 report on the Ministry of Defence found that it did not share pockets of good practice routinely within the department. 26 Our 2007 PFI benchmarking report 27 and 2008 report on changing PFI contracts 28 found few departments used market‑testing to give competitive tension to high-value changes to PFI contracts.
25 Comptroller and Auditor General, Modernising Procurement, Session 1998-99, HC 808, National Audit Office, October 1999.
,
26 Comptroller and Auditor General, Using the contract to maximise the likelihood of successful project outcomes Session 2005-06, HC 1047, National Audit Office, June 2006.
,
27 Comptroller and Auditor General, Benchmarking and market testing the ongoing services component of PFI projects Session 2006-07, HC 453, National Audit Office, June 2007.
28 Comptroller and Auditor General, Making Changes in Operational PFI Projects, Session 2007-08, HC 205, National Audit Office, January 2008.
Current weaknesses reflect long-standing problems
The findings of our 2008 report
2.5 The reviews commissioned by government in response to the G4S and Serco overbilling revelations found systemic weaknesses in its contract management (Figure 8 on pages 32 and 33). Many of the findings echo issues raised in earlier NAO reports. In particular, the 2008 NAO report Central government's management of service contracts found that government:
* had not prioritised contract management enough;
* had allocated insufficient skills and resources;
* had not used penalties to encourage good performance;
* had weak risk management;
* had variable measures to improve contracts;
* had not widely carried out a supplier relationship management programme (less than half of organisations); and
* needed to do more to support central government organisations.
2.6 The 2009 Committee of Public Accounts report that followed made 9 recommendations to improve government contract management. The government accepted them. The Office for Government Commerce (OGC), then part of HM Treasury, set up a programme to 'build an active community that is incentivised and encouraged to build its professional capacity and capability' across central government. However, the OGC struggled to influence departments and progress in improving contract management was slow. 29
Figure 7
Contracting out public services has increased since the 1980s
Examples of major themes in contracting 1982 to 2014
Themes and policies
| Procuring goods | |
|---|---|
| | Procurement of goods and services |
| Whole-life cost | |
| Estate management | |
Notes
1 Organisations referred to in the fi gure include: MOD – Ministry of Defence; OGC – Offi ce of Government Commerce; DfT – Department for Transport; DWP – Department for Work & Pensions; HMRC – HM Revenue & Customs; DVLA – Driver and Vehicle Licensing Agency; NS&I – National Savings & Investments.
2 The ASPIRE and STEPS contracts were originally let by the Inland Revenue, which is now HMRC, and the PRIME contract was originally let by the Department for Social Security, which is now the Department for Work & Pensions.
Source: National Audit Offi ce analysis of value for money reports, 1982 to 2014
Construction and procurement
Services
The MOD had contracted out royal dockyard management since 1986 and was considering contracting maintenance of RAF equipment in 1987
Electricity, gas, telephony become routinely purchased from the private sector
ICT
Private sector consultants needed to address skills gaps in public sector ICT (such as computerisation of PAYE by the Inland Revenue in 1987)
NHS starts using independent health sector facilities (1989)
PFI rapidly used for many services including prisons (1995), hospitals (1997), roads, museums and eventually ICT
NHS centralises procurement (1991)
MOD's general policy to contract out maintenance work (1992)
The DfT contracts out road construction and improvement
Our 2003 report shows the growth of PFI with no prisons procured by a non-PFI route in previous 10 years
PPP is used for London Underground improvement (announced 1998)
NAO report: Modernising procurement (1999)
The cohort of early PFI deals begins to be refinanced
HMRC lets ASPIRE ICT contract (2004) 2
NAO report: Using the contract to maximise the likelihood of successful project outcomes (2006)
NAO report and good practice framework: Central government's management of service contracts (2008)
NAO reports on contracts including health and disability assessments, Olympic security, out-of-hours GP services, court language services, asylum accommodation and electronic monitoring increased focus on contractors responsible
HM Treasury leads programme of savings on operational PFI contracts and launches a new 'PF2' approach to public private partnerships
Cabinet Office launches a cross-government review of contract management (2013)
Government mutualises MyCSP pension scheme (2013)
'Next generation' shared service centres created
Call centres begin to be contracted out in the mid 1990s
PFI is used for Contributions Agency ICT (1995)
New services contracted out from the start, including immigration centres (1995), the National Lottery (1993) and electronic monitoring (1998)
The DVLA combines privatisation with outsourcing ICT (1993)
PFI used for estate and facilities management including DWP's PRIME (1997) and HMRC's STEPS (2001) contracts 2
The NS&I outsources most operations via PPP (1997)
Figure 8
Further problems reported since 2010
2.7 In 2010 the OGC transferred into the Cabinet Office's Efficiency and Reform Group. The government began to prioritise savings by using its combined buying power more, and engaging with contractors as a single customer to get a better deal. It deprioritised building departments' individual contract management capability. Many of these issues raised in our 2008 report have recurred in our work on contract management undertaken since 2010. For instance we have recently reported that:
* Department for Work & Pensions (Universal Credit)
The DWP had inadequate financial control over supplier spending on Universal Credit. This includes not fully understanding how spending related to progress, poorly managed and documented financial governance, and insufficient review of contractor performance. 30
* Home Office (COMPASS asylum accommodation)
Although they had been operating for almost 1 year, unresolved issues during transition continued to affect provider performance once the contracts began. 31 Since then contract compliance and assurance teams are working with operational managers to support performance management. The Home Office reports that issues relating to the key performance indicator regime have been resolved and that property standards are now meeting contractual requirements.
* Department for Work & Pensions (Work Programme)
Flawed contractual performance measures meant the DWP could have had to make incentive payments to even the worst-performing contractors on the Work Programme. In 2014-15 all 40 contracts could have been entitled to £31 million in incentive payments but the DWP estimated that only £6 million would be payable using a more accurate performance measure. 32 The DWP is now preparing to renegotiate the contracts and expects to improve the link between incentive payments and performance.
* HM Revenue & Customs (Aspire ICT)
The Department was overly dependent on the technical capability of the Aspire suppliers between 2004 and 2012, which limited its ability to manage the contract commercially. 33
* Department of Health (PFI hospitals)
Some trusts had not devoted sufficient resources to contract management; for example, 9 of the 76 PFI contracts had no one assigned to contract management. 34
30 Comptroller and Auditor General, Universal Credit: early progress, Session 2013-14, HC 621, National Audit Office, September 2013.
31 Comptroller and Auditor General, COMPASS contracts for the provision of accommodation for asylum seekers, Session 2013-14, HC 880, National Audit Office, January 2014.
32 Comptroller and Auditor General, The Work Programme, Session 2014-15, HC 266, National Audit Office, July 2014.
33 Comptroller and Auditor General, Managing and replacing the Aspire contract, Session 2014-15, HC 444, National Audit Office, July 2014.
34 Comptroller and Auditor General, The performance and management of hospital PFI contracts, Session 2010-11, HC 68, National Audit Office, June 2010.
NAO commentary on the causes of poor contract management
2.8 The problems with contract management go beyond lapses in administration and understanding. The problems are rooted in a civil service culture that does not understand the value of contract management, and which has hindered previous attempts to disseminate and implement best practice. Reform of contract management will therefore need to go beyond a tightening of controls. It is difficult to generalise across 17 government departments, but from our collective experience of auditing government contracting we have identified 4 key causes of poor contract management that need to be addressed.
The value of contract management is not understood
2.9 Government officials appear too often to have seen contract management as enforcing the deal that was made when the contract was agreed. Under this procurement model of contracting, commercial functions have seen themselves as adding value through effective procurements that drive down price, mitigate the risk of legal challenge or dispute during the contract life and negotiate economic changes.
2.10 The procurement model of contracting does not work for anything other than the most basic services. It is not possible to fully specify more complex services. Ensuring services have been provided to the appropriate standard requires expert judgement and continually using commercial influence to manage the service. For longer-term contracts, the government needs flexibility to ensure that services continue to meet changing business requirements.
2.11 Government needs to recognise that value is achieved over the life of the contract. Good contract management requires a multi-disciplinary approach, owned by the business. All those responsible for the contracted-out service must use commercial influence to bring about improvements in the service and cost reductions. This includes using contractual incentives, damages, threats to reputation, promises of future opportunities and withholding consent to any key approvals required. Good management also requires effective relationship management and understanding the service that is meant to be provided. Done well, a department has considerable influence over the contractor even after the initial competition is concluded. Contract management then becomes a vital part of how an organisation meets its objectives.
Managers have not adopted a commissioning role
2.12 The government is trying to reform the civil service to make it smaller and more strategic. 35 Successive governments have pursued the idea of splitting the roles of commissioner and provider, and aspired to bring private and third sector providers into public service markets. 36 This process has started to shift departments' roles from directly providing services to managing other providers.
2.13 However, departments' senior managers and governance processes have been slow to adapt. Senior management have not taken contract management seriously. Too often, departments' structures and systems are set up as if their responsibility stops at contract signature. Governance systems have usually comprised investment boards and business case approval processes that have focused on approving spending decisions and awarding contracts. Senior engagement has not generally been maintained during the operational phase. Contract managers have often worked at more junior levels than managers of directly provided services. Senior ownership of contracts, and who is allowed to make decisions, has often been unclear.
2.14 As a result, senior managers have often intervened only to react to problems and disputes with contractors. They have not given scrutiny and challenge to their own teams and contractors, to encourage continuous service improvement and value for money.
Senior managers have poor visibility of contracts
2.15 Senior management's lack of engagement has meant they have not demanded robust information. We do not often see the contract summaries and manuals that would allow senior managers to understand their contracts. Departments do not have ways to aggregate cost, risk and performance data, so senior managers can scrutinise their portfolio of contracts.
2.16 The lack of senior demand for information has negatively affected data quality at a working level. Departments do not have integrated systems to manage their contracts. This means they do not capture all the contract changes and communications with the contractor, leaving them exposed if there is a dispute. The contractor is often best placed to produce performance data. However, instances of data manipulation have shown that departments need to validate and verify this information. 37 Departments do not use open‑book accounting often enough. This means they do not know if they are getting value for money, and cannot refine incentives or identify areas to cut unnecessary expenditure.
35 HM Government, The Civil Service Reform Plan, June 2012, available at: www.gov.uk/government/organisations/civilservice-reform
36 HM Government, Open Public Services, white paper, Cm 8145, July 2011, available at: www.gov.uk/government/ organisations/open-public-services
37 Comptroller and Auditor General, The Ministry of Justice's electronic monitoring contracts, Session 2014-15, HC 737, National Audit Office, November 2013; Memorandum on the provision of the out-of-hours GP service in Cornwall, Session 2012-13, HC 1016, National Audit Office, March 2013.
Government is at a permanent disadvantage on commercial capability
2.17 Because departments do not see contract management as a way to enhance services and make efficiency savings, they have no way to measure its value. This has made it hard to make the business case to invest in contract management teams, training and skills. Contract management teams have seen cuts in recent years and funding for administration is likely to be further reduced in the next parliament.
2.18 Procurement has been seen as a low-status profession in the civil service. It has few senior positions and most procurement professionals do not work with ministers and senior management. There have not been the career paths to ensure those working on commercial issues have the experience necessary. The result has been a clear divide between those trained-up through the civil service and those brought in from outside. Relatively few within the civil service have the ability to negotiate with contractors on an equal basis.
2.19 This low status has meant the commercial profession has not been well placed to disseminate best practice across government. Business owners of contracted-out services have often only looked to the commercial profession for advice on navigating EU procurement rules, tendering protocols and major renegotiations of contracts. They have not worked with them to get best value from the contract when the services are in operation.
2.20 There have been many attempts in the past to improve the commercial capability of government. These have included investment in professional qualifications, bringing in outside experts and rolling out commercial awareness training. These will continue and have an important part to play in improving the management of contracts.
2.21 But the reality is that government is unlikely to ever have the commercial capability of its contractors. It does not pay the same overall amount as the contractors at a senior level. It cannot provide the same incentives to focus on value for money as contractors will provide to increase profit. It does not offer the same hope of advancement to the most senior positions as offered by business. And it does not provide the same breadth of experience across both public and private contracts. Instead of trying to match contractors on their commercial capability, it needs to find ways of deploying its scarce capability to where most required, while making the management of its other contracts easier.
Part Three
Transforming contract management
3.1 In the previous part we set out the need to address the systemic problems with government's contract management. This part sets out what can be done, building on government's current actions. We organise this into 3 areas of improvement:
* Enabling a commissioning approach
Establishing the governance, information systems and structures to enable senior management to scrutinise, challenge and manage delivery by others.
* Understanding and influencing suppliers
Placing responsibility for delivery with contractors, ensuring they have the appropriate control systems in place, and using transparency, assurance and incentives to align their interests with the taxpayer.
* Making the most of commercial capability
Deploying commercial expertise as a scarce resource, strengthening career paths and training and making effective use of information to target activity.
Enabling a commissioning approach
Governance
3.2 The civil service culture needs to change so that senior officials take contract management more seriously. Like most programmes aimed at starting a cultural change, government is starting with its governance structures, roles and responsibilities. Departments need to establish systems of governance and oversight that enable senior officials to manage contracted-out services before problems arise. This includes clear ownership of contracts, processes of issues escalation, and senior challenge and scrutiny of contract management teams and contractors.
3.3 There are 5 levels at which departments need to govern contract management. Individuals' accountabilities and authority to make decisions need to be clear at each level. Departments and the Cabinet Office are improving governance at all 5 levels (Figure 9 overleaf):
* Day-to-day contract management
Departments are reviewing their contract management processes to improve governance. The Department for Work & Pensions (DWP) commissioned an external review to identify good practice in its contract management and improve consistency. The Ministry of Defence has commissioned reviews of contract management in contracts not covered by the cross-government review.
* Senior responsible owners
Departments have recognised they must assign every major contract a senior responsible owner (SRO). The Department of Health is reviewing its data to make sure ownership information is up to date. It is also strengthening its guidance for SROs.
* Escalation routes
There need to be ways of those managing the contract day-to-day to escalate issues to SROs. There has sometimes been too wide a gap between an SRO and the day-to-day manager, meaning that issues are not escalated. The DWP is improving escalation routes by ensuring that all contracts have SROs within the most suitable procurement categories. For example, all facilities management contracts' SROs will report to the head of estates.
* Strategic oversight
Commercial directors will be made responsible for contract management as well as procurement. Many departments are also strengthening senior groups responsible for strategic oversight. For example, the Ministry of Justice has established a new commercial and contract governance committee, which has a wider remit and greater seniority than its previous procurement board. Departments are also starting forums to share lessons at working-level with other departments that share common contractors and sometimes have shared the results with crown representatives.
* Dispute resolution and arbitration
The Crown Commercial Service (CCS) complex transactions team has started to provide central support to departments with contractual disputes. The team supports departments, at their request, with contractual disputes and complex contract issues. For instance, it recently supported the DWP to close Atos's medical assessment contract for the Employment Support Allowance.
3.4 Departments are generally taking a risk-based approach to governance and so less attention has been given to smaller, less risky contracts. Departments will need to ensure that improved governance is rolled out to these proportionately.
Figure 9
Five levels of governance over contract management
Features of good governance
Dispute and arbitration
* Crown representative appointed for key suppliers
* Appropriate use of arbitration, mediation and negotiation with expert support, such as the Crown Commercial Service's complex transaction team
* Board-level champion for key contracts
* Senior management forum to discuss supplier relationships, overall strategy, issues across multiple contracts or at a service- rather than contract-level, continuous improvement of contracts with good performance
* Ensuring each contract has a senior responsible owner with appropriate seniority to negotiate
* Regular contact with supplier even on non-problematic contracts
* Accountable to senior management forum
* Clear procedures for escalation of problems
* Clear delegation of authority
* Aggregation of performance data for senior scrutiny
* Using open book access, real-time data, site visits, co-location of staff with the supplier to ensure good visibility of performance
* Contact point for end-user feedback
Strategic oversight
Senior responsible owner
Escalation and aggregation
Day-to-day contract management
Source: National Audit Offi ce
Government needs to improve its contract management data
3.5 Basic record keeping and data analytics are essential to contract management. Yet departments lack integrated systems to manage their contracts. We typically find contract management information is spread across disparate systems such as electronic filing, email and sometimes even paper-based systems. Government needs information systems that combine the needs of finance (paying contractors), procurement (planning for and conducting bidding) and contract management (understanding performance, costs, the commercial position and the agreed contract). In particular, government needs systems that help it with 3 challenges:
* Ensuring they have an up-to-date agreed contract
This should include all changes and communications with the contractor. It should also include contract management plans, manuals and guides so that people new to the contract can readily understand it.
* Aggregation of information
Senior management need to be able to scrutinise and challenge costs and performance on contracts across their portfolio, before issues arise.
* Comparability across contracts
Contract management would be significantly enhanced if information was maintained in a common format to allow the use of data analytics and milestone alerts at a portfolio level. This would allow cost benchmarking and costing of commercial terms and conditions.
3.6 Government is slowly moving towards using digital information to manage its contracts (Figure 10 overleaf). The centre has a number of ongoing initiatives:
* The Crown Commercial Service (CCS) is developing a common data standard.
* Financial information on spending is generally available through the online spending analysis tool. The quality of this information is improving over time.
* The CCS intends to improve central procurement information through a new version of its Contract Finder website, which it plans to launch by October 2014. 38 The current version includes some data on central government's largest contracts at the point they are signed, as well as forthcoming competitions.
* The CCS has made less progress in capturing operational information such as performance data, contractual changes and correspondence with contractors. It has an ambition to create a system for managing the spending under its control. However, its aim to do this by December 2014 is ambitious and we have yet to see developed plans.
Figure 10 Progress towards an integrated system of information for contract management
Key information for
contract management
The contract
operations view
The procurement view
The financial view
Making payments to suppliers
Providing spending data for
suppliers, wider supply chains
and service categories
Storing and collating key contract
management data including risk,
performance and cost
Recording contact and correspondence
with the supplier
Storing an up-to-date version of
the contract
Storing corporate knowledge on
roles and procedures for operating
the contract
Providing internal information supporting
the procurement process
Providing external information on
market opportunities
System integrated into normal business
Work under way to strengthen this across much of government
Some departments are experimenting with this
Source: National Audit Offi ce
3.7 Departments are beginning to improve their aggregation of data. For example, the Ministry of Justice is introducing balanced scorecards for contracts. The Department of Health will require senior responsible owners to indicate contract performance in a way that can be captured and reviewed centrally then reported to senior managers. The Driver and Vehicle Licensing Agency already aggregates risks from its top 10 contracts into a commercial service risk register.
3.8 Some departments are also procuring their own information systems. The Ministry of Defence is commissioning a new business information system, intended to bring together financial and operational information. The Ministry of Justice intends to procure a new system, but is waiting for advice from the Cabinet Office. However, other departments are only now improving basic information. The Department of Health has recently consolidated locally held contract registers, often in the form of simple spreadsheets, into a single, centralised corporate contracts register.
Integrated business structures
3.9 Contracts should be owned by someone able to represent the end user. This person will not normally be within the commercial function. That person then needs to be supported by a multidisciplinary team of commercial, financial, legal and policy professionals. The commercial specialists should support them on how to use commercial influence to manage the contract, improve the service and reduce costs.
3.10 There is a tension between creating teams that integrate commercial staff to provide consistent support through the life of contracts, and accessing specialist support at key stages of the life cycle. Departments are going about this in different ways:
* Ministry of Justice
The Ministry will create a single team to manage a contract over its life. The team will have an operational contract manager, a commercial contract manager, and other disciplines will support it, such as performance analysts, finance, legal and human resources.
* Home Office
The Home Office has reorganised its centralised commercial capability to develop expert centres for different stages in the contract life cycle. It will allocate a single commercial professional to give end-to-end support to the operational contract manager. As the contract progresses, the commercial partner will report to and be advised by senior commercial staff in different centres of expertise.
* Department for Work & Pensions
The DWP will manage different categories of contracts together. It is centralising its commercial staff under several senior category leads in areas such as ICT, welfare to work and health assessments. Category leads will oversee end‑to-end commercial support through the full service life cycle.
Integration across the commissioning lifecycle
3.11 Contract management is an essential part of the commissioning cycle (Figure 11). Greater planning and consideration of contract management is needed in other parts of the cycle:
* Designing policy
Departments should consider their contract management capability when designing their policies and contractual approaches.
* Generating solutions
HM Treasury's guidance on the 5 case model already requires contract management to be considered as part of the business case for a project, but this is rarely prioritised.
* Mobilising contract management
The cross-government review found a lack of continuity and limited transfer of knowledge from the pre-contract phase to operational contract management in 5 recent contracts.
* Evaluating projects that have finished
Departments rarely collate data to enable an evaluation of the best contractual models and techniques. For instance, this has meant that government has not been able to verify whether PFI has achieved value for money compared to conventional financing. 39
3.12 Government is now beginning to recognise the importance of considering contract management earlier. The Cabinet Office has updated its standard operating procedures for procurement to include the mobilisation of contract management. 40
Understanding and influencing suppliers
Building intelligence on strategic suppliers
3.13 Government's influence is strongest in markets such as prisons and defence where it is the only buyer. However, many of these markets are dominated by a small number of large suppliers. The experience of dealing with G4S and Serco shows that such suppliers can become too important to fail. Government is exploring ways to reduce its reliance on such dominant suppliers. For example, the electronic monitoring contract has now been retendered using the 'Strategic Integrator and Towers Model' advocated by the Cabinet Office. This allows smaller companies to bid. We intend to report on how government manages its markets for government services later in the year.
39 National Audit Office, Briefing for the House of Commons Treasury Select Committee: Review of the VFM assessment process for PFI, October 2013.
40 Standard Operating Procedures are published on the Crown Commercial Service website, available at: https://ccs.cabinetoffice.gov.uk
Figure 11
Contract management and the commissioning cycle
Source: National Audit Office
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Policy design
Advice on innovation
in the market
Sharing learning from
past experience of using
commercial options
Contract management
planning
Advice on how to
manage the supplier
market
Advice on options for
contract mechanisms
Advice on contract
management capability
Planning contract
management of service
Operational contract
management
Supplier relationship
management
Using commercial
levers to deliver service
improvements and
cost savings
Managing risks, disputes
and opportunities
Contract management mobilisation
Negotiating contract
governance, incentive
regime and controls
Mobilisation of contract
management team
Managed handover
from procurement to
operational contract
management
Operational contract management
Monitoring and
managing performance
Managing changes
Capturing learning for
future services and the
evolution of policy
and contracts
3.14 Meanwhile, government needs to be able to rely on its strategic suppliers to behave in the taxpayers' interest. Government thus needs to be much more inquisitive about the internal operations and culture of such companies. It can then use this information to influence them and to set clear expectations. It should know the company's:
* Leadership
What are the leaders' espoused values? What do they pay attention to within the business? How do they focus on the government's (their customer's) needs?
* Business model and strategy
How does the company make its money? How much profit does it make through new contracts or generating additional revenues on existing contracts? Is it dependent on growth or making a steady return? Is it aiming to expand into new markets? What opportunities is it after?
* Acquisition policy
How and why is it acquiring smaller companies? How does it manage the integration of new businesses into the group? Does its growth mean that its control environment is overly stretched and reliance cannot be placed on management?
* Control environment
How does accountability work within the organisation? How do senior executives know that operations are working? How do they know what is going on across their diversified business?
* Promotions policy and staff incentives
How are managers incentivised? Is a focus on government's (their customer's) needs rewarded? Is misbehaviour punished?
* Staff engagement and productivity
How motivated are staff? How focused are they on what they do? Do they see the company as a good place to work?
* Internal audit and whistleblowing policies
How do senior management know that corporate policies are implemented? How do they learn of problems? Are these shared with the government as customer? Are staff encouraged to raise issues?
3.15 Government has started to build its understanding and strengthen influence in its relationships with suppliers. In our 2013 report Managing government suppliers 41 we outlined the benefits of the Cabinet Office crown representatives who were appointed to manage the relationship with 40 strategic suppliers across government. The crown representatives are now supported by the CCS, which coordinates and maintains intelligence on some of these strategic suppliers. However, the information collated by the CCS is only a fraction of the intelligence we believe should be brought to bear in such relationships.
3.16 Some individual departments are also improving management of key suppliers. The Ministry of Defence has 13 strategic suppliers (reduced from 31 due to resource constraints) where relationships are overseen by board-level sponsors. The Ministry plans to appoint a commercial contracting officer who will lead major supplier management across the organisation. The DWP has had an established strategic supplier approach in its Welfare to Work division, which it is currently spreading to its ICT division.
Increasing transparency and assurance
3.17 Government must create a situation where it can rely on contractors to deliver, even when it is not deploying its best contract managers to oversee them. This requires the contractor to take greater responsibility for the accuracy of the data it supplies, and for providing a control environment which will maintain ethical behaviour and public service standards. We believe government should get written representation from contractors on the integrity of the services they supply. Senior managers would sign statements which, while not necessarily carrying additional legal implications, would have symbolic and reputational importance, and give Parliament clear accountability.
3.18 Ensuring contractors live up this responsibility requires better transparency and assurance to ensure controls are working. The cross-government review highlighted the extent of reliance on supplier performance data, while our work on the NHS out‑of‑hours GP services in Cornwall showed how performance data can be manipulated. 42
41 Comptroller and Auditor General, Managing government suppliers, Session 2013-14, HC 811, National Audit Office, November 2013.
42 Comptroller and Auditor General, Memorandum on the provision of the out-of-hours GP service in Cornwall, Session 2012-13, HC 1016, National Audit Office, September 2013.
3.19 There is a growing consensus about the need to improve transparency over government contracting. The Committee of Public Accounts report of March 2014, the Confederation of British Industry (CBI) and the government have all called for improved transparency. The Cabinet Office and the CBI have started discussions about what this means in practice. 43 However, government has not set a vision for how control, transparency and assurance will be integrated as a system. The Cabinet Office has said that this is the responsibility of departments, 44 while we view it as a central responsibility. A stronger system (Figure 12) would require:
* Monitoring and control
The means to understand and manage contractor performance and value for money. Government should set clear standards and objectives for its contractors.
* Transparency
The ability to see through the contractor's organisation, performance and costs; and the knowledge that others can raise issues on your behalf.
* Assurance
Reason to be confident of the supplier's controls; and know that services provided meet the required standards.
3.20 Meanwhile, departments are to improve assurance on contractor data:
* Strengthening internal audit
The cross-government review recommended increasing internal audit focus on contract management and several departments have started to do so. For example, the Ministry of Justice will increase its contract management work from 3% to 15% of the total. Eight departments share a cross-departmental internal audit service, which plans to spend nearly 10% of its audit time on commercial issues in 2014-15.
* Some departments are requiring contractors to provide assurance
The Department for Work & Pensions will require major contractors to commission external reviews to give independent assurance on performance and on the control environment of the contractor. Government also needs to require transparency to the public. Although it is improving its Contracts Finder database (paragraph 3.6), this only covers contracts at the point they are signed. It does not include performance information or subsequent changes to contract terms.
43 Available at: www.gov.uk/government/news/government-and-cbi-meet-with-industry-to-discuss-improvements-incontracting-for-public-services, 2 May 2014.
,
44 HM Treasury, Treasury Minutes: government responses on reports from the Committee of Public Accounts Cm 8871, June 2014.
Figure 12
A model of an integrated system of control, transparency and assurance
Control
Transparency
Assurance
Objective
Require the contractor to be accountable
Client
Performance monitoring: Verification, benchmarking and triangulation of information to assess performance
Performance management: Use of commercial incentives and influence to secure performance improvements
Exchange of information
Specify the control objectives: Client specifies what the control environment should achieve (eg accurate billing) and the standards of behaviour (eg fair treatment of users)
Management accountability: Senior executive at the contractor sends annual statement accepting accountability for the performance of the services and the control environment
Contractor
Responsibility for the services: Including responsibility for the performance of the services and the control environment over them
Integrated whistleblowing:
Contractor whistleblowing policies specify people outside the organisation to whom staff can safely go with concerns
Source: National Audit Offi ce
Provide confidence that performance is achieved and interests are aligned
Published information on the market: Include the pipeline of opportunities, current spend and published contracts
Freedom of information: Including reduced use of commercial confidentiality clauses
Use of inspection rights: Including the use of open-book accounting
Transparency to the client:
Including statements on how services are delivered and their
control environment
Published information on performance: Including key performance indicators
Published information on delivery environment: Including information on staff numbers, employee engagement and codes of conduct
Government needs to know controls are operating and information is accurate
Internal audit: Increased focus on contract management to bring it up to be proportionate to the risk
Provider assurance: Client's internal audit (or similar function) uses inspection rights to obtain assurance
External assurance: Contractor provides external assurance to the client on specified control objectives
Contractor's internal audit:
Contractor's internal audit provides assurance on the control environment within the contractor
Aligning incentives
3.21 Contractors need to make a profit. But government needs to know that these profits are made in ways that align with the taxpayers' interests. Contractors' profits should vary with the risk taken on, the level of innovation the contractor provides and, crucially, performance. Excessive profits can undermine public confidence and contractors should not be able to make a profit by acting against their customer's (the government's) interest. Expectations about profit levels and how they will vary by performance should be agreed in competition when the contract is let. Retrospective negotiations may be less likely to get a good deal for the taxpayer.
3.22 As with transparency, there is now broad consensus that open-book clauses should be used more, but little guidance on how to do so. The Cabinet Office has developed a new model contract 45 which includes open-book clauses and audit rights, and contractors are generally amenable to providing the data. Pockets of government such as the Ministry of Defence have particular experience in this area, which may help shape future guidance and approaches. The Cabinet Office and the Confederation of British Industry are piloting ways to implement greater use of open-book clauses.
3.23 Our recent work on both the Work Programme 46 and Aspire 47 contracts have shown how open-book can be used to see the contractors' incentives. In our view, an open‑book approach should have 3 purposes:
* To build trust and confidence in the relationship.
* To provide assurance that incentives are aligned.
* To identify areas for cost savings.
3.24 Government needs to support an open-book approach with means to enforce the alignment of incentives. These include gain-share mechanisms, claw-back of excess profits and post-contract reviews to ensure profits are in alignment with the original intention. Common data standards within and across contracts would allow government to compare costs and margins across suppliers using analytical techniques.
3.25 Government also needs to ensure that it gets what it pays for. This means stricter use of incentive penalties when performance is not up to standard. It also means use of liquidated damages, with the amount agreed during the initial competition, for any substantial failure.
3.26 Government and contractors can then work together to identify cost savings.
45 Model Services Contract, available at: https://ccs.cabinetoffice.gov.uk/about-government-procurement-service/ contracting-value-model-services-contract
46 Comptroller and Auditor General, The Work Programme, Session 2014-15, HC 266, National Audit Office, July 2014.
47 Comptroller and Auditor General,Managing and replacing the Aspire contract, Session 2014-15, HC 444,
National Audit Office, July 2014.
Capability
Enhancing the role of commercial staff
3.27 The role of commercial staff needs to change. The procurement model whereby commercial staff add value through running effective bidding processes and then ensuring the contractors meet the expectations in that contract does not work for more complex services. Instead, commercial staff need to focus on improving the quality of services and reducing costs over the life of the contract. This starts at the scoping stage.
3.28 Changing the role of commercial staff is also likely to have other advantages. It will make the job more interesting, improving staff engagement. It will make the role more influential, attracting a higher calibre of staff. And it will expose staff to more commercial situations, allowing them to develop the experience they need and be promoted to more senior positions.
3.29 Government recognises that it needs to deploy its staff in a different way. The Cabinet Office believes commercial capability is too focused on the bidding stage and should be redeployed on planning and contract management (Figure 13 overleaf). They also believe this would align deployment closer to the private sector. For example, the Defence Equipment and Support organisation estimates that under 10% of its commercial staff are involved in contract management, well below the 50% it believes is required. The Department of Health has redeployed some commercial staff to focus purely on contract management support.
3.30 Planning on how to redeploy staff is at an early stage. Departments are currently considering:
* The size of their resource gap
It is not clear how many commercial specialists government needs. The reviews identified a gap between the numbers and capability of staff allocated to contracts and the level needed. Government is currently researching best practice, based on evidence from across industry, in order to determine the scale and nature of resources that are needed to successfully manage contracts.
* The skills that they need
It is not clear that the current commercial workforce has the skills needed for the new role. The Cabinet Office and departments are working out the skills that they have and that they need. The Cabinet Office has begun to create a central database of commercial skills. While preliminary indications suggest a large skills gap may exist, work is still at an early stage.
Figure 13
Cabinet Office believes that government's commercial capability has been too focused on the bidding stage
Deployment of commercial capability
Note
1
Scales are impressionistic.
Source: Cabinet Office
Existing deployment
Target deployment
Generating solutions
Bidding stage
Delivering services
Guidance and support from the centre
3.31 Government has a permanent disadvantage in its commercial capability compared with its contractors. It therefore needs to ensure that it uses the people that it does have to best advantage. Previous experience has shown the benefit of central centres of expertise. They can provide guidance and support to other teams, and deploy people for the most complex negotiations. 48
3.32 The Cabinet Office is building up central resources to provide support to departments. The Crown Commercial Service's (CCS) complex transactions team (paragraph 3.3) consists of around 20 experts with skills in finance, law, engineering and ICT, all with significant experience of working on commercial issues. The CCS also supports crown representatives to provide help with negotiations with strategic suppliers. Infrastructure UK, part of HM Treasury, provides support for private finance projects.
3.33 The CCS's development of standard data on contract management (paragraph 3.6) could also help it to deploy specialist commercial staff with particular experience more effectively. It could use this information to identify patterns across an individual contractor's portfolio. It could also use it to monitor milestones and plan the deployment of its resources.
3.34 The CCS is starting to provide greater guidance to departments. It has published a standard contract for digital services and business process outsourcing. It has also updated its standard operating procedures to include lean sourcing. 49 This is starting to fill the void in central guidance since the Office for Government Commerce's guidance was abolished.
3.35 Departments will always need to retain a significant amount of capability to manage their own contracts and provide oversight and scrutiny of their portfolios. Some departments are working to improve their guidance and support for contract managers. For example:
* The Department of Health has created a senior responsible officer checklist for its contract managers and has started to promote contract management in events aimed at its procurement network.
* The Home Office has revised its commercial manual and collated new guidance on an updated intranet page for the commercial directorate.
* The Ministry of Justice has hosted commercial awareness events for senior civil service staff.
Professional development of commercial staff
3.36 Government can do better at developing the staff that it does have. There needs to be a clear career path to attract skills into the civil service, and a way to develop staff and give staff experience of managing contracts. This requires coordination to be taken by the centre of government to support a more vibrant commercial profession.
3.37 The government has recognised that improving commercial skills is a priority. The Civil Service Reform Plan 50 and its supporting capabilities plan 51 set out an ambition to "transform the civil service into a high-skilled, high-performance organisation that's less bureaucratic and more focused on delivering results" with commercial skills and behaviours forming 1 of 4 priority areas. CCS has started several initiatives to improve commercial recruitment, training and development:
* Helping departments recruit commercial staff
In 2014 CCS ran a recruitment campaign for 77 commercial roles for departments and the CCS. Previously, every department ran its own campaign, potentially competing for the same skills. Of 988 applicants for senior roles, some 34 were in post or under offer by 15 July 2014. CCS will use this system to appoint new commercial directors at the Home Office, Department of Health and HM Revenue & Customs.
* Civil service commercial fast stream
A 'commercial fast stream' will recruit graduates to commercial roles from 2014. Participants will gain experience of commercial work in departments, CCS, an allied role such as finance, and outside the civil service. This builds on, for example, the graduate commercial training programme in the Ministry of Defence.
* Recruiting from new sources
School leavers will be recruited as apprentices directly into commercial roles across government from September 2015. Apprentices will train for professional qualifications and receive work experience over a 2-year programme. CCS is also creating internships with 7 universities and working with the CBI to create industry placements for people from the private sector.
* Framework for commercial skills
The framework allows commercial staff to be rated at 3 levels across 16 competencies covering pre-procurement, procurement and contract management. CCS is developing a tool to assess its procurement staff against the framework using multiple-choice exams. Staff will gain 'passports' to show their experience, with set criteria needed to enter the senior civil service. It also plans to introduce a talent management and development plan for high-potential staff.
* Better commercial training
This will include existing eTraining on EU procurement law, new commercial masterclasses provided by Civil Service Learning and the Commissioning Academy. The new courses will align with the skills framework. By March 2014 some 9,500 staff had completed eLearning on commercial awareness, and 1,400 attended the masterclasses.
50 HM Government, The Civil Service Reform Plan, June 2012, available at: www.gov.uk/government/organisations/civilservice-reform
51 HM Government, Civil Service Capabilities Plan, April 2013 (and updated June 2014), available at: www.gov.uk/ government/news/capabilities-plan-for-the-civil-service
Appendix One
Our audit approach
1 We examined the government's response to the reviews of its contract management in late 2013. We considered:
* issues that occurred on government contracts;
* departments' responses to the Cabinet Office's 2013 review; and
* the centre's actions to coordinate the response and build capability across central government.
2 Our audit approach is summarised in Figure 14 overleaf, and our evidence base is described in Appendix Two.
Figure 14
Our audit approach
The objective of government
Following revelations of G4S and Serco's overbilling, and weaknesses in contract management procedures in a December 2013 review, the government is starting a large change programme to improve how it manages its contracts.
How this will be achieved
Our study
Our evaluative criteria
Our evidence
(see Appendix Two for details)
Our conclusions
The Cabinet Office has asked departments to show how they will improve their contract management. The Cabinet Office has set up a new entity, the Crown Commercial Service, to be the centre of expertise for commercial issues.
We reviewed issues in individual contracts, looked at how departments were managing their contracts, and how the centre was giving leadership for government contract management. We considered the plans under 4 categories, based on our 2008 framework for contract management.
Governance and accountability for key decisions.
Visibility of contract information to senior management.
Integrating contract management with business objectives.
Capability and skills to manage contracts.
We reviewed issues in individual contracts from our previous reports; reviewed government departments' plans; and interviewed central commercial teams and departments to understand their proposed responses.
The government will not get value for money from its contracts until it improves contract management. The Cabinet Office, HM Treasury and major spending departments have recognised the scale of the issue and have responded accordingly. The major spending departments have launched significant change programmes to improve their contract management. The Cabinet Office is strengthening its role in supporting the commercial profession, managing collective spending on common goods and services and supporting departments. We believe this represents an opportunity to bring about needed change. Nonetheless, there is a lot still to be worked out. In our view, there needs to be widespread change in the culture of the civil service and the way in which contractors are managed. There needs to be more emphasis on a commissioning approach, transparency over the contractors, use of open-book to align incentives and a targeted focus of the government's commercial capability.
Appendix Two
Our evidence base
1 We reviewed key documents including:
* our back catalogue of reports on government contracts;
* reviews of government contracts, including the detailed reports on the contracts reviewed;
* departmental plans produced in response to the review; and
* plans produced by the Crown Commercial Service.
2 We did more detailed interviews with 5 government bodies, the Department for Work & Pensions, the Department of Health, the Ministry of Defence, the Foreign & Commonwealth Office, and the Driver and Vehicle Licensing Agency. At each of these we met some of the main decision-makers including:
* commercial directors and their teams;
* senior managers responsible for contract management; and
* internal audit.
We also drew on the more extensive work conducted as part of our separate report on contract management in the Home Office and Ministry of Justice.
3 We interviewed Cabinet Office and Crown Commercial Service senior management to understand work they are planning to provide leadership across government. We reviewed supporting papers and data to verify information given in interviews.
4 We interviewed senior managers at G4S and Serco to understand the actions they are taking to respond to the discovery of issues in their contracts.
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March 2008
Chronic Developmental Conditions Among Hispanic Children in the United States, 2003 and 2005-2006
by Rosa M. Avila, M.S.P.H., and Stephen J. Blumberg, Ph.D., Division of Health Interview Statistics
Page Content
Methods Results Discussion Data Sources References Tables
Data from two national surveys are used to describe the prevalence of selected chronic developmental conditions and the risk of developmental, behavioral, or social delay among Hispanic or Latino children. These data are also used to compare these estimates with those from non-Hispanic children. Comparisons are further made by the primary language spoken in the household for Hispanic children.
Methods
Data were drawn from two cross-sectional random-digit-dial telephone surveys conducted by the Centers for Disease Control and Prevention's (CDC) National Center for Health Statistics: the 2005-2006 National Survey of Children with Special Health Care Needs (NS-CSHCN) and the 2003 National Survey of Children's Health (NSCH). Both surveys are part of the State and Local Area Integrated Telephone Survey program and were conducted in collaboration with their sponsor, the Health Resources and Services Administration's Maternal and Child Health Bureau.
As part of NS-CSHCN, parents of children 0-17 years of age completed a standardized screening questionnaire (1) to identify whether any of their children (n = 364,841) had special health care needs. Parents of children with special health care needs (CSHCN) (n = 40,840) were asked whether, to the best of their knowledge, the children had any of 16 specific health conditions. These conditions included Down syndrome, mental retardation or developmental delay, and cerebral palsy. Parental report may not be consistent with a diagnosis by a health care provider. Information about health conditions was not obtained for children without special health care needs.
As part of NSCH, parents of all children 3-17 years of age (n = 102, 353) were asked whether "a doctor, health professional, teacher, or school official ever told you that the child has a learning disability" and whether "a doctor or health professional ever told you that the child has autism." Children identified as having ever been diagnosed with these conditions included children who no longer had the condition at the time of interview. In addition, questions on NSCH permitted an assessment of risk for developmental, behavioral, or social delay for children 1-5 years of age. The Parents' Evaluation of Developmental Status (PEDS) is a standardized parent-reported screening instrument for identifying young children at risk for delay. Health care providers often use a clinical version of PEDS to assess or make decisions about the developmental status for individual children; a nonclinical version was included in NSCH.
In both surveys, Hispanic children were identified by asking the parent, "Is the child of Hispanic or Latino origin?" Hispanic and non-Hispanic children could be of any race. English-speaking and Spanish-speaking households were identified by asking the parent, "What is the primary language spoken in your home?" Both surveys were conducted in English and Spanish.
Point estimates and standard errors were calculated using SUDAAN version 9 (2) to account for the complex sample designs of NS-CSHCN and NSCH. Differences between percentages were evaluated using two-sided significance tests at the 0.05 level.
Results
Table 1 presents the prevalence of special health care needs and the prevalence of selected developmental conditions with special health care needs among children generally (with and without special health care needs). The prevalence of special health care needs was significantly lower for Hispanic children than for non-Hispanic children. Similarly, the prevalence of mental retardation or developmental delay with special health care needs was significantly lower for Hispanic children than for non-Hispanic children. Furthermore, Hispanic children in English-speaking households had significantly higher rates than children in Spanish-speaking households. The prevalence of cerebral palsy with special health care needs was also significantly higher among non-Hispanic children than among Hispanic children, but disparities by primary language in the households were not statistically significant. No significant differences were found in prevalence of Down syndrome with special health care needs between Hispanic and non-Hispanic children or between the primary language subgroups within the Hispanic population.
As shown in Table 2, the prevalence of children with autism is significantly higher among non-Hispanic children than among Hispanic children, a disparity that has been previously identified by CDC in a report based on the same data (3). Within the Hispanic population, the prevalence of autism is significantly higher for children from Englishspeaking households than for children from Spanish-speaking households. The prevalence of learning disability was also significantly higher for Hispanic children in English-speaking households compared with Hispanic children in Spanish-speaking households, but no difference existed in the prevalence of learning disability between Hispanic children and non-Hispanic children.
Approximately 24% of children aged 1-5 years had a moderate to high risk of developmental, behavioral, or social delay. No significant differences were found between Hispanic and non-Hispanic children or between Hispanic children in Englishspeaking households and Hispanic children in Spanish-speaking households.
Discussion
Parent report of health conditions is somewhat dependent on access to appropriate health or educational services for diagnosis as well as communication of that diagnosis to the parent. Hispanic children are more likely than non-Hispanic white children to lack access to health care services and specialized doctors (4), be uninsured, and lack a usual place for medical care (5). As a result, developmental problems may be more likely to go undiagnosed among Hispanic children. This may explain why the prevalence of certain developmental conditions (autism, mental retardation, and cerebral palsy) is lower for Hispanic children, but the risk of developmental, behavioral, or social delay was equivalent for Hispanic children and non-Hispanic children. One should note that parents of Hispanic children (especially parents from Spanish-speaking households) may be less likely to report health problems for their children because of reluctance to share such personal details in a telephone survey (6). This may also explain why Hispanic children (and especially Hispanic children from Spanish-speaking households) are less likely to have parent-reported special health care needs. More research is needed to examine the reasons why the prevalence of certain chronic developmental conditions is lower for Hispanic children.
Data Sources
The objective of NS-CSHCN is to produce national and state-specific prevalence estimates of CSHCN, describe the types of services they need and use, and assess aspects of the system of care for CSHCN (7). CSHCN are defined as those children who have or are at an increased risk for a chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally (8). From 192,083 households, a total of 364,841 children aged 0-17 years were screened for special health care needs using a standardized screening questionnaire (1). Detailed interviews were conducted if a child with special health care needs lived in the household. If two or more CSHCN lived in a household, one was randomly selected to be the subject of the interview. Detailed interviews were conducted by telephone with parents or guardians of 40,840 CSHCN. Additional details about the methodology are available elsewhere (7).
The objective of NSCH is to produce national and state-specific prevalence estimates for a variety of physical, emotional, and behavioral health indicators and for measures of children's experiences with the health care system (9). From January 2003 through July 2004, detailed telephone interviews were completed with parents or guardians of 102,353 children aged 0-17 years. One child was randomly selected from each household with children. Additional details about the methodology are available elsewhere (9).
References
1. Bethell CD, Read D, Stein RE, et al. Identifying children with special health care needs: Development and evaluation of a short screening tool. Ambul Pediatr 2(1):38-48. 2002.
2. SUDAAN [computer program]. Release 9.0.1. Research Triangle Park, NC: Research Triangle Institute. 2005.
3. CDC. Mental health in the United States: Parental report of diagnosed autism in children aged 4-17 years-"United States, 2003-2004. MMWR 55(17):481-6. 2006.
4. Kuhlthau K, Nyman RM, Ferris TG, Beal AC, Perrin JM. Correlates of use of specialty care. Pediatrics 113 (3 Pt 1):e249-55. 2004.
5. Flores G, Olson L, Tomany-Korman SC. Racial and ethnic disparities in early childhood health and health care. Pediatrics 115 (2):e183-93. 2005.
6. Read D, Bethell C, Blumberg SJ, Abreu M, Molina C. An evaluation of the linguistic and cultural validity of the Spanish language version of the Children with Special Health Care Needs Screener. Matern Child Health J 11:568-85. 2007.
7. Blumberg SJ, Welch EM, Chowdhury SR, Upchurch HL, Parker EK, Skalland BJ. Design and operation of the National Survey of Children with Special Health Care Needs, 2005-2006. National Center for Health Statistics. Vital Health Stat 1. Forthcoming.
8. McPherson M, Arango P, Fox H, et al. A new definition of children with special health care needs. Pediatrics 102:137-40. 1998.
9. Blumberg SJ, Olson L, Frankel MR, Osborn L, Srinath KP, Giambo P. Design and operation of the National Survey of Children's Health. National Center for Health Statistics 2005. Vital Health Stat 1(43). 2003.
Suggested citation
Avila RM, Blumberg SJ. Chronic developmental conditions among Hispanic children in the United States. Health E-Stats. National Center for Health Statistics. March 2008.
Chronic Developmental Conditions Among Hispanic
Children in the United States, 2003 and 2005-2006
Tables
† Estimates for non-Hispanic and Hispanic children significantly differ at the 0.05 level
‡ Estimates for Hispanic children in English-speaking households and Hispanic children in Spanish-speaking households significantly differ at the 0.05 level.
*Figure does not meet standards of reliability or precision; the relative standard error is greater than or equal to 30%.
2 Hispanic children in Spanish (as their primary language) households.
1 Hispanic children in English (as their primary language) households.
Chronic Developmental Conditions Among Hispanic
Children in the United States, 2003 and 2005-2006
† Estimates for non-Hispanic and Hispanic children significantly differ at the 0.05 level.
*Figure does not meet standards of reliability or precision; the relative standard error is greater than or equal to 30%.
1 Hispanic children in English (as their primary language) households.
‡ Estimates for Hispanic children in English-speaking households and Hispanic children in Spanish-speaking households significantly differ at the 0.05 level.
2 Hispanic children in Spanish (as their primary language) households.
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LEBENS-ANSICHTEN DES KATERS HUXLEY NEBST FRAGMENTARISCHER BIOGRAPHIE DES FELLOWS MICHAEL GORDIN IN ZUFÄLLIGEN MAKULATURBLÄTTERN (WITH APOLOGIES TO E. T. A. HOFFMANN) MICHAEL D. GORDIN
Michael D. Gordin is Rosengarten Professor of Modern and Contemporary History at Princeton University. He earned his bachelor's and his doctorate in the history of science from Harvard University and served a term as a Junior Fellow at the Harvard Society of Fellows. His interests include the history of the modern physical sciences, modern European history (including Russia), the history of languages, and the history of nuclear weapons. He is the author of five monographs, including Scientific Babel: How Science Was Done Before and After Global English (2015); Five Days in August: How World War II Be came a Nuclear War (2007); and A Well-Ordered Thing: Dmitrii Mendeleev and the Shadow of the Periodic Table (2004). − Address: Department of History, 136 Dickinson Hall, Princeton University, Princeton, NJ, 08544, USA. E-mail: firstname.lastname@example.org.
I, Huxley, am not the most extraordinary cat. Like every cat, I am literate and bilingual – all cats know German; the only question is what their other language is – although the vast majority do not put paw to keyboard, preferring instead the elegant charm of quill on parchment. I live in a delightful villa with lots of windows that Human 1 and Human 2 moved me into with my sister Wilber (the less said about her the better), and I spend most of my days sleeping, eating, thinking about eating, thinking about sleeping, and watching birds and the occasional squirrel flitting around the trees surrounding our domicile. This is fine as far as it goes, but I do have a hankering to compose my auto biography. The problem is that neither Human 1 nor Human 2 left any paper sitting around for me to use. This past week, however, Human 2 has been writing a report about his year at someplace called "the Wissenschaftskolleg" – or maybe the place is named
"Wiko", since he talks about that place too – and in an unguarded moment he left a stack of this ostensible report lying about. I'd prefer to have my own pristine paper, but I remain unfamiliar with the M19 and thus cannot obtain my own. The backs of these pages are the canvas upon which I will paint my saga, since the Wi-Fi connection here is quite reliable and the printers well supplied with toner. Or, rather, I'll use the fronts of the papers; Human 2's jottings should now rightly be described as the "backs". I have not bothered to keep them in any sort of order, as you really don't need to read them. Stick to the fronts.
I will begin, as countless other writers have taught us one should, at the beginning. The beginning was extremely loud.
***
people say about the library at Wiko is true. Aside from the pleasantness of the main room as a workspace, the holdings are fascinating and idiosyncratic (in the best sense). I used the actual Wiko library to probe through classic novels. The library kindly purchased a Czech-English dictionary for their permanent collection and then allowed me to keep it in my office on longterm loan. (They reasoned, Who else would need it? As it happened, the Prague network traced by Einstein was so German-centric that – aside from isolated forays into specific secondary lit erature – the dictionary was less useful than I had anticipated.) Used bookstores played their part as well. Following a stray recommendation by Thorsten Wilhelmy that I might want to read the novels of the Prague-born author Leo Perutz, his yellow-bound volumes became an obsession and a leitmotif of my Grunewald year.
But the real treasure at Wiko isn't the library: it's the librarians. I will gladly concede that my requests weren't always predictable or easy to obtain, but time and again the librarians went well beyond the call of duty (or reason) in attempting to locate whatever I had asked for. There's Soviet historiography easily obtainable from former GDR collections; then the massive Ger man- and English-language Einstein literature, available in Berlin in copious quantities; then the archival documents from Prague, Graz, and Jerusalem that the library team managed to track down. Often I would show up in the office in the morning and submit some requests. Or I would submit them in the middle of the night, on the weekend – I submitted a lot of requests. Many days I would return from lunch and encounter the happy e-mail announcing that books were waiting for me in the Weiße Villa, books I had only become aware of hours earlier. They were waiting for me, but not half as much as I was waiting for them. As with many Fellows, I
leave the Grunewald with more PDFs than I had imagined existed, let alone were obtainable with a smile.
The White Villa contains its own set of mysteries, naturally, and I specifically recall one
***
I only in retrospect came to realize that the noise was temporary, but my goodness there was a lot of it! Back in the Ancestral Home, Human 1 and Human 2 tricked us with tasty food pellets, seized our necks using Vulcan death grips, attached vests and leashes to us, and confined us in prison-boxes – well, tricked me; my sister is beyond gullible and would have fallen for it without the added subterfuge. Then, we moved a bunch of times. First we moved to a bumpy small room that smelled a lot like petrol. Then we moved to a noisy, cavernous place with beeping and announcements and lots of people lugging around lots of wheeled prisons. (Most of these seemed to contain clothing, a bizarre affectation of humans; a rare few held similarly imprisoned cats or absurd non-cat entities.) Then we moved to a bumpy noisy tubular apartment, which experienced bizarre and unexplained pressure changes. I really did not care for this new residence and voiced my concerns quite forcefully. Then, we moved to another bumpy petrol home. I don't think that lasted long, but I am not sure as I fell asleep and lost track of time. Finally, we ended up here. I believed this to be the final move, as the Humans seemed relieved to arrive at this residence.
Once I generously overcame my justified resentment at this coerced and inexplicable treatment, I could see why they were pleased. It is spacious. There is light. (Birds and squirrels I already mentioned, but later one saw swans, and also mini-swans. A swan is a kind of water vehicle that looks like a bird.) The place is immaculate, and had lots of areas to sit and do the thing that the Humans call "work" – mostly reading and typing and talking about ideas, which seems a lot more fun than my understanding of the usual usage of the English term. And there are lots of people around: coming up and down the stairs, laughing and chatting beyond the door into the Infinite Beyond, sometimes coming in and chatting and eating with the Humans substances that are not as aromatic as tasty food pellets. Initially it seemed, in short, like a vacation, but it has become a vacation with a regular structure, as I would learn.
***
unexpected conversations. That was the realization that slowly settled in during the first few months: that Wiko was designed to put you in the way of discussions and encounters you wouldn't have planned on. Of course, not every conversation produced a new perspective on a puzzle that had tormented me in the confines of my Neubau office, but an amazing proportion did. Those tended to come in two variants. The first set were the random exchanges that come from being in close proximity to lots of intelligent people – this aspect of Wiko is deliberate and surprisingly effective. The second set were consequences of the Tuesday colloquia, which often sparked the most animated and unusual lunchtime discussions immediately afterward.
I came to Wiko seeking those kinds of conversations, even if their specific content was unex pected. What I hadn't anticipated was my extensive academic travel around Germany. A few months before I arrived at the Wissenschaftskolleg, I had published a history of the dynamics of language choice in the natural sciences, beginning with Latin and ending with English. Most of the book, though, covered the way in which Russian and especially German functioned and then declined as vehicles of scientific communication. As a result of this, I found myself in Essen, Mannheim, Hannover, Greifswald, Frankfurt, Gießen, Leipzig, and across town in Berlin, speaking to German academics from a variety of disciplines about language choice and use. All this happened, to my surprise and delight, in German. (The language courses sponsored by Wiko were a true gem.) Both in and out of Berlin, the year became – pleasantly – much more Ger man than former Fellows had led me to anticipate.
The German-centric quality extended into politics, of course, especially after the rise of
***
Some events in life are predictable. Human 2 is usually not home for the midday food-consumption activity. He has to go to Wiko for that, which is confusing, since apparently my apartment (benevolently shared with my sister and the Humans) is also Wiko, and he surely isn't leaving the apartment to come to the apartment. Then again, logic has never been his strong suit. Sometimes both Humans leave, and some other person (called "a Fellow") comes by and provides the all-important daily food tribute to me (and as an afterthought also to my sister). The Humans regularly take such trips within a place called Europe, which surrounds our building. It sounds nice.
The most important regularity – and I mention it only as a warning to all future cats who might move here – is that once a week a person comes and unleashes tremendous ruckus and violence in order to render the apartment "clean". Like clockwork, she is. Other people come and go keeping the building (for the Humans mentioned that this apartment was indeed stacked among a bunch of other ones, with identical furniture arranged in slightly different configurations) functioning. That is the surprising thing: not that things go wrong, because that is the nature of entropy, but that these malfunctions at "Wiko" are so quickly put back in the normal order of things. Cats, with their exquisite command of the German language, appreciate order.
And that is why I never plan to move again. I'm certain I'm going to be here at this Wiko forever, enjoying the life to which I have become accustomed.
***
begin at the beginning, with the research project that brought me to the Wissenschaftskolleg. I arrived with an idea and a resolution. The idea was to explore the three semesters that Albert Einstein spent at the German University in Prague, from April 1911 to the summer of 1912. Considering that Einstein was not only the most famous scientist of the modern era but also the best-documented, it surprised me that this specific moment – his first full professorship, sand wiched between the enormous success of his development of the special theory of relativity and of early quantum theory, and the world fame he would reach in 1919 as a consequence of his gravitational theory, known as general relativity – was almost universally treated in the schol arship as little more than an "intermezzo" during the "Swiss period" before his 1914 move to Berlin. Then again, one reason why some topics don't show up in the literature is that they are not, in the end, terribly interesting. I had, however, a series of tantalizing leads that suggested otherwise, stories drawn from the overlap of Albert Einstein and the city of Prague in that year: the long-term ramifications of the split of the university along linguistic lines in 1882; the emer gent community of Jewish Germanophone literary figures, such as Max Brod (Franz Kafka did not yet register during Einstein's Bohemian moment); the rise of Prague Zionism; debates over the philosophy of science among disciples of Franz Brentano, logical positivists, and dialectical materialists; and so on. When I came to Wiko, I had the starting points of several stories, but no idea whether they would cohere as a book or instead become a series of related, but ultimately separate, articles.
That's where the resolution came in: I would not write anything during my year in Berlin. My colleagues and friends thought I would not be able to adhere to this constraint, but – aside from a few book reviews – I did. This proved to be the best part of the year, intellectually speaking. I read, broke for lunch with the Fellows, and read some more. And the more I read,
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Grace to You :: Unleashing God's Truth, One Verse at a Time
The Biblical View of Abortion, Part 1
Selected Scriptures 80-14
It's uncommon for me, as you know if you've been a part of Grace Church, to break up a series of studies and Bible books to talk about sort of issueoriented messages, but from time to time the demand is very great. I want to say that I`m not under some illusion that you don't know how to respond to abortion because those of you who have been under the teaching of the Word of God surely you do already understand the biblical principles. But it is important for us to clearly articulate these in one setting so that we have a resource which we can provide to other people and so that we can crystallize in our minds the issues that are at stake.
Now someone might say, "Well, how does this fit into a worship service. After all, aren't we here to worship God?" And it is precisely because we are here to worship God that this is the right place to talk about this. In worshiping God we are affirming one great truth among many and that is that God is sovereign, that is to say that He is the King of the universe. He is the ultimate King of Kings, Lord of Lords, potentate, ruler, decider of fates, determiner of destiny. His will and His will alone is the ultimate issue. God is in charge, to put it simply.
The problem of abortion is primarily defined as a blow struck against the sovereignty of God. And so, in sort of a reverse fashion by looking at the issue of abortion, we will indirectly affirm again the sovereignty of God which, of course, is one very important element in our expression of worship. And as I shall try to demonstrate to you from Scripture this morning, the primary evil of abortion is its attack on the sovereignty of God. It is a direct and overt attack on God. And we'll see how and why as we look together to this subject and to Scripture this morning.
Now if you have read at all newspapers, magazines, or been alerted to the media in any way over the last few years, you've become increasingly aware that America presently is highly committed by law and by practice to mass murder. We have made that formal commitment and we are carrying out the execution of that commitment on a wholesale fashion. It's really a very, very stark transition from the America of history, a nation known as a nation of freedom and liberty and privilege and rights, a nation where justice was the protector of the people, a nation which always seemed to pride itself on its humanitarianism, its concern for the poor and the needy, the weak and the defensiveless. And yet, it is in this very nation which has stood in the world as the symbol of freedom and right and privilege that mass murder has been taking place for many years. In fact, the murderous and violent cycle of killing infants that's been going on in our country, particularly over the last 12 or 13 years, makes the Nazi holocaust look mild by comparison.
For example, there are nearly two million abortions a year, two million unborn children are killed a year in our country. Every third baby conceived is being murdered. Among teenage women there are approximately 735 abortions for every thousand live births. Some statistic reflects that among married women, abortions exceed births three to two. Somewhere between forty two hundred and fortyfive hundred recorded abortions occur every single day which breaks down to about three a minute, or one every twenty seconds.
In some metropolitan hospitals in our nation, abortions out number live births. And though I'm always amazed America has an ability to sort of justify what it's doing and condemn everybody else, and we standat least some of our populationpiously condemning activities in South Africa and so often the same liberal element piously condemning those activities in South Africa are eagerly leading the parade to massacre babies in our own nation. Tremendous inconsistencies.
The Upjohn Pharmaceutical Company is in the process now of developing a pill for women to take and abort babies at home so they don't need clinics or hospitals. Planned Parenthood, which is the father of sort of population control mentality that says, "We use abortion to control a population, recently had a meeting of what they called "The Planned Parenthood Physicians Association." One of their seminar leaders was a doctor by the name of Dr. Willard Cates (Cates), He presented a paper that had a very interesting title. The title of his paper given in a symposium to other doctors is "Abortion as treatment for unwanted pregnancythe number two sexuallytransmitted disease."
What Dr. Cates is saying is that pregnancy is a disease. It is the number two sexuallytransmitted disease next to venereal disease. Now, by his definition, conceived children are simply symptoms of a disease that needs to be eliminated. Planned Parenthood, by the way, has over 700 abortion clinics doing about 60,000 recorded murders a year. And they receive presently in excess of $120 million dollars a year from the United States government as well as support from the United Way and a whole lot of other public agencies that funnel funds to them.
Our nation, along with the rest of the world, whoby the wayin mass this year will massacre 60 million babies, that will be the world total this year, is in the processin effectof wiping out an entire generation of people. Mass infanticide is going on all over the globe. The process itself is really bizarre. And I just give you a few details for your own information.
During the first trimester of pregnancy, the methods used for aborting the life of a child are usually D&S or D&C. D&S is Dilation and Suction. The woman is dilated and then a high powered vacuum is placed in the woman and the vacuum dismembers the body of the small infant and sucks it down a tube. In Dilation and Curetage, a sharp instrument is used which cuts the child into pieces and then is also extracted, often forceps are used to crush the head to reduce its size for easy elimination. Of course this can result in sterility. It can result in torn parts of the woman's body, perforation and all kinds of things. And we've all heard the people who advocate abortions say, "But..if we didn't have legal abortion, under illegal abortion all kinds of women are butchered..." and so forth and so on. And we ought to be reminded of the fact that six to seven times more women die a year since legalized abortion than ever before, by the sheer volume of numbers of abortions that are being done.
During the second trimester, the safe comfortable home of the child which we call the amniotic sac filled with amniotic fluid in which the child exists is wounded violently by a large needle. That needle then extracts the amniotic fluid that is there and in its place saline concentrate solution is pumped into the womb, that creates a burning situation that literally burns the baby alive. In 24 hours, usually, the body will expel the baby, although on some occasions it can take as long 72 hours for that to take place.
During the third trimester, commonly, there is a hysterectomy used, sometimes an actual Csection or Caesarean abortion will be used. And then there is in various parts of this development of the child in different trimesters the use of prostaglandins which are a drug that induces labor pains that actually expels the baby. And very frequently the babies expelled are alive and old enough to be cared for and kept alive in the intensive care units of neonatal facilities. But when that does happen, as one nurse in our church told me it happened recently in her hospital, two such aborted babies were alive and could have been preserved but were shoved in a corner, typically, until they were dead.
A new way has been advocated by the National Abortion Federation in its recent annual meeting in California. It was advocated at one of their physicians workshops. It is to puncture the soft spot on the baby's head and vacuum out the brains.
Another abortionist suggested, and this for a group of physicians to which he was speaking, that abortionists charge according to the length of the foot of the aborted baby.
In Mount Sinai Hospital in New York City, there was recently the situation where a woman was carrying two babies, twins. It was determined through medical examination that one of them was likely a possessor of the Down's syndrome and the parents did not want a Down's syndrome baby and so a process known as "cardiac puncture" was used to kill one baby while keeping the other one alive, in which the heart of that baby was punctured with a needle and all of its blood extracted and in its place some other poison placed.
When babies do live, by the way, there are all kinds of unimaginable consequences. One that never ceases to amaze me is Revenue Rule Number 73156 of the IRS. That rule says that should you be having an abortion and the baby come out alive, you can count it as a tax deduction as a dependent. It's a non person if its dead, it's a person if its alive. That is the stupidity of humanism.
I was amazed yesterday, as probably you were, to read or hear about the woman in Van Nuys, right in this neighborhood, who didn't want her family to know that she was illegitimately pregnant. She then went into the bathroom to give birth to her child, gave birth to the child in the bathroom. Tried unsuccessfully to drown it so she cut it up with a razor blade. And they have now determined that she should spend a minimumif she is convictedof 11 years in prison...which is an interesting sort of conundrum. If she had gone to an abortionist, she wouldn't have had any penalty at all. If she tried to kill the baby herself, she's going to be sentenced to 11 years. It won't be considered murder, it's sort of semimurder because nobody knows what to do in the hopeless chaos of this dilemma.
The best term that I can think of as a parallel term for abortion is "convenience killing." And that is basically what it is. It is convenience killing. It is killing because it is convenient. In fact, we have gone to the extreme now where 15 yearolds can get abortions without parental knowledge or parental consent. And the assumption of the abortion advocates is that parents are enemies of their own children and they might try to stop them from having an abortion. Spousal consent, that is the consent of a husband to a wife's abortion, is also unconstitutional. The confusion is unbelievable.
When you talk about what happens to the aborted child, that opens a whole area of unbelievable understanding. For example, dead fetuses are used in all manner of experiments and so are live ones. And I've been reading over the last couple of months about this and it's a horrifying thing. I cannot imagine anything in any age of human history in any time period that could be anything worse than what is done both the live and the dead results of an abortive process.
In 1981, according to the "Journal of Clinical Pathology," it indicated that fetal organs are being grafted into mice and rats to see how long they could keep them alive. Frightening experiments, that I can't even speak of, taking place. Squibb Company, some that I can speak of, was involved in paying tens of thousands of dollars to Ob/Gyn doctors, Obstetrics and Gynecology, to experiment with fetuses for use in research on highblood pressure drugs. The U.S. government has funded experiments on live aborted babies purchased from certain hospitals. The "Journal of Medicine...New England Journal of Medicine," probably one of the most prestigious in the world, reports that tissue cultures are obtained by dropping living babies who come out of abortions into sort of a meat grinder situation to culture their tissues.
I mean, it goes on and on like that. I don't want to create monstrosities in your mind, but I do want you to understand where we are. Dr. Dominguez of New York City writes, "That on any (and I'm quoting) Monday, you can see 70 garbage bags with fetal material in them along the sidewalks of abortion clinics in New York City," end quote.
And it has become a reality, folks, that it is now possible to do to a baby what you couldn't get away with doing to a dog or a cat. And if you tried, you would have had the anti vivisectionists all over the place. It's a strange and bizarre situation that the same people who seem to be screaming "Save the whales" are also in the parade yelling "Kill the babies."
In fact, I was amazed to read about a recent case in California called "Kurlander(?) vs Bioscience Labs." And in this case, it is now possible because of that case for children to sue their parents for wrongful life, for letting them live rather than aborting them. In other words, if you are handicapped or deformed or something, or if life isn't all that it ought to be for you, there is at least a precedent for you to sue your parents for wrongful life. That was in the "Newsletter" of the American College of Obstetrics and Gynecology.
The stupidity of all of this is demonstrated further by the fact that recently in Maryland, a wounded American eagle was found and it was rushed to emergency treatment. The emergency treatment was too late and the eagle died and a $5,000 reward was offered for the arrest of the eagle killer. Now eagles are nice birds but it's a little inconsistent. And I'm sure you don't know this because it's sort of a New England law, but it's illegal to ship pregnant lobsters regardless of which trimester of pregnancy they're in. There's a $1,000 fine for shipping a pregnant lobster because it might do damage to the little lobster.
Massachusetts has a law called "The AntiCruelty Law." And in that law it is forbidden or illegal to award goldfish as prizes in games of chance. And the law reads like this: Why? "To protect the tendency to dull humanitarian feelings and corrupt the morals of those who abuse them," end quote. Save the goldfish because if we don't we might be corrupting morals and dulling humanitarian feelings of people.
You say, "Well, why all of this going on?" Well, for one thing, in 1981 alone it was in excess of a onebillion dollar business. Abortion is a money maker. Big business. It is not only a business in the abortion...business in the abortion clinic itself but it goes on from there. Not only do they get what they get from the person whose baby is aborted, but then they get whatever they can get for the sale of the fetal materialthe placenta and all that's left, including the baby itself. We became aware here at Grace Church of a particular organization known as "BipMed" having to do with medical byproducts which collects and resells fetal material for about $1.40 a pound. There is evidence that babies have been sold by the bag, $25 a bag. The sale of lateterm elected abortions at Washington D.C.'s General Hospital over a tenyear period brought in excess of $68 thousand which was used to decorate a lounge for visiting professors.
And Dr. Olga Fairfax says, "When I saw the first ad on television advertising collagenenriched cosmetics, I was speechless. Collagen is the gelatinous substance found in corrective...pardon me...in connective tissues, bones and cartilage. A glance through a local drug store revealed that the shampoos and hand creams contained collagen. Unless your beauty produce specifies animal collagen, it could be human, obtained from aborted fetuses. There is triple profit to be had. The first is from the abortion, estimated at half billion a year by "Fortune" magazine. The second comes from the sale of the aborted babies bodies. And the third profit is from the unsuspecting customer buying cosmetics that contain collagen from babies," end quote.
And all of this is so bizarre that it taxes our minds to conceive of something like this occurring in our society. But it is. And the fallout to women is frightening. In Japan, in the last 30 years, since about 1955, there have been an excess of 50 million recorded abortions. The fallout is frightening. There are now in the land of Japan certain Buddhist temples that have been selected and built for the express purpose of memorializing what they call "water babies." Water babies are unborn infants that are aborted.
Because of the trauma to the mother, because of the mother's need to get some resolution as to what happens to that infant that's been aborted, these Buddhist temples have arisen in which a motherfor a price of somewhere between 340 and 640 American dollarscan purchase a small stone Buddha as a memorial to her water baby. In just one of those temples in Japanwhich you can visitthere are at least 10,000 such little stone Buddhas. You pay a price to go in and you can take pictures of this. At the same time, grieving mothers traumatized by the haunting reality that they have killed a baby can go back to those places and the Buddhist priest will offer prayers for the water babies at a dollar twenty per baby, or forty dollars each additional aborted baby by the same mother. So religion in Japan is trying to come to the aid of traumatized women.
Psychologists tells us that between 400 and 800 percent higher is the suicide rate of women who have had abortions than the normal female population. And there is evidence that hypochondria, depression, withdrawal, guilt, shame, diminished selfesteem, drug, and alcohol dependency and serious psychosis result from abortions. And after I preached this message in the first service, someone came to me and said, "You better talk about forgiveness because there were a couple of women who went out of the service saying they felt like they ought to kill themselves." Well yes, God forgives, but that's just an example of the trauma that this kind of thing creates.
Now the question comes, "How did this get started? Where did it all begin?" Let me give it to you very simple. Jesus said it. He told us where it all began. You don't need to look it up because it's a familiar verse. It's John chapter 8 and verse 44 and I want you to listen to what Jesus said because this is the foundation of this whole matter. In Jesus' conversation with the Pharisees, He said: "You are of your father, the devil. And the lusts of your father you will do. He was a murderer from the beginning."
Where does all of this murder of infants come from? It comes from the devil, Satan. It is a supernatural Satanic conspiracy. It is a reflection of the prince of this world, the god of this age, the spirit that now rules in the hearts of fallen men. It is Satanic. And Satan has always been a murderer. It started out with Cain killing Abel.
Satan has even been a mass murderer. You can go back into Canaanitish civilization and read horrific accounts of the Canaanites massacring of their babies, burying live babies in walls of new buildings. You can read about the people in the land of Canaan, even among the Jews sometimes, who offered their born children as sacrifices over the fire to the god Molech.
Satan has always been a murderer and he has always been a murderer of children. He tried through, obviously, the time of Moses to massacre the Messianic line in the massacre of all of the babies that Pharaoh ordered. He tried again in the massacre that was carried out by Herod at the birth of Christ. Satan has always been a murderer. Since it is God who gives life, Satan is the one who desires to take life. He has the power of death, Hebrews 2:14 says. Satan is a murderer from the very beginning and he fosters murderous intent among men in order that he might kill what God has made. It is not that he is concerned with murder itself, he is concerned with how it impacts God's intended purpose.
So, murder goes a long way back and so child murder and so does abortion. If you read the Talmud, the Jewish Talmud, you will read statements made by Jewish rabbis throughout ancient history in which they say that abortion is murder and has no place in the society of the people of God. Thou shalt not abort a child. Abortion is not new.
I was reading just this week that Aristotle and Plato both advocated abortion as a way to control large families and stop population development. And I was reading a book about abortion and the early church which is a very interesting restructuring of the scenario around the early church period, the time of Christ and the GrecoRoman, pagan world which tells us that they were very busily engaged in abortions even at the time of Christ and the Apostle Paul and the New Testament.
And I was interested to read the reasons that the Greco Roman pagans gave for abortion. These were their reasons. One, was to conceal illicit sex. Nothing new about that. Number two, rich women who were illegitimately impregnated in their love affairs by low class common men did not want to give birth to low class common children and then have to waste their fortune on them. So they had abortion to keep from having to give birth to low class children.
And then the GrecoRoman pagans also said that abortion was convenient because "It allowed a woman to preserve her sex appeal so that she would not," and I'm quoting from an ancient source, "be troubling her womb with bouncing babies," end quote. Abortion then was a contraception to conceal illicit sex, to prevent unwanted children, to preserve your figure...just as it is today. Nothing new...convenience killing.
I was also fascinated to read how abortions were done in those days. We sometimes think that ancient times were less than sophisticated in all areas, but that's not the case. They had developed some very, very effective techniquesto some extent in aborting babies. Although without sterilization, the threat of peritonitis and the death of the mother was far more imminent than it would be today. But nonetheless, the methods are used and very well defined.
I was reading one of the medical journals. There is one on gynecology written by Soranus, way back at the time of the early church, a Greek. And in his gynecological book, that isby the waya Greek word, gune is the word for "woman, study of a woman." So in his book on all of this he gives all the procedures for how to go through the birth canal, how to mix the poisons...they used drugs. Sometimes drugs were taken orally, sometimes they were induced. They were poisons that were concocted and they knew what worked by trial and error. They had developed poisons and drugs that would effectively kill the fetus.
They also had a process by which they would tie the woman's stomach tight with ropes so that the fetus couldn't develop and eventually would be dead by strangulation. And then there were blows. Once the child was large enough, they would try to locate its head and kill it that way.
Now the pagan world accepted this. They also accepted the use of blades through the birth canal. And they even had a hookand I read the whole section on how to hold the hook to do the job right and get the baby's head out and so forth and so on. the Jews were against it. The pagans were for it. The Jews, because of their view of God and His sovereignty and His creative power and because of the sanctity of human life and because they knew that the second great commandment from the Deuteronomic law was to love your neighbor as yourself and they saw that infant as a neighbor, they knew this was a sin, a horrendous crime of violent murder. And they spoke out against it. And there is no indication in any Jewish community of ancient times that they advocated abortions, although many Jews today advocate and have and do abortions. That's contrary to their heritage.
But the church always, along with the Jews, stood against it. And basically for the same reasons, for the reason that that life is a creation of God, for the reason that that life is not the woman but that is a neighbor that is being cared for and preserved by that woman in the most protected place on the earth, a woman's womb. And to violate that Godgiven protection and murder the child protected in that womb was the ultimate violent act. So said the church, it was an act of lovelessness and an act of murder.
They advocated the fact that Jesus reached out to the poor and the weak and the helpless and the needy and defenseless and that was the style of His loving ministry. And there was no more defenseless human than one still in the womb of his mother and so the love of Jesus demonstrated to that one in the womb could not effect a murder. You can read in the Didache which is a sort of codification of early church law, things like this, quote: "Thou shalt not murder a child by abortion." And you can find in things like the Epistle of Barnabas which gives us insight into the years after the New Testament that abortion was rejected by the church because it was the opposite of loving your neighbor, for that little one was seen as a neighbor, someone to care for.
The Didache defined the way of life and the way of death very clearly. And in defining the way of death, or damnation, the Didache said that the way of death is full of cursing, murders, adulteries and the murders of children. And it calls them corruptors of God's creatures. And a third century Latin source even translates that abortuontes(?) or abortionists. So they had that even then, it isn't anything new.
Satan has always wanted to destroy what God has made. And the early church taught that abortion brought down the wrath and the judgment of God...a form of murder, a form of violence and the antithesis of loving care. "To follow Jesus," said the early church, "was to shed any thought of murder or violence to anyone, including the unborn."
What I'm saying is that the problem isn't new and the church's position isn't new either. What is frightening to me is how many churches are now proabortion, or prochoice. And I'll be giving you a list of those next week so you'll know.
Well, you say, "I understand the history of it then but how in the world did it ever come to be in our country? How did it arise?" Well, you know the scene. Let me just run by very fast a few steps. It all started with a promotion of abortion as a matter of freedom. This is a free country. Women ought to have their freedom. It all came out of the new sex ethic "free fornication for everybody all the time with whoever you want with no consequences." I mean, that's basically the sex ethic of our time. Free sex, free love, no consequence.
So, if we're going to have real freedom which is now defined as fornication, or prostitution, or whatever else you want to call it...
...then we can't have women being victimized by men in that they become pregnant. So in order for them to have the real freedom that they ought to have to express their sex life, we've got to get rid of the consequence which are babies. That's the mentality of our society. You see it with AIDS right now. We don't want them to have to deal with the consequence of their vile life style so we're working furiously to eliminate those consequences. I understand that because there are many innocent victims for whom the consequence should be eliminated. But it is the mentality of our society that free sex, free love, free life style shouldn't have any consequences. And God keeps punctuating the situation by saying, "But there are consequences."
So, they say we'll eliminate them. And that's where it all begins with that free sex viewpoint that started splurging on to our society in the fifties and sixties. And then many of you will remember the thalidomide babies. And as a result of this, English physicians began to advocate what is commonly called "eugenic abortion." That is, abortion because of the fact that this child to be born is deformed and will cost society a lot of money and be a lot of trouble to everybody. So we wipe out all of those deformed children, and you have a sort of, if not genetic engineering, a postgenetic engineering. And so the elimination of defective children became another pressure moving this nation toward wholesale legality of abortion.
Then, of course, came the rise of feminism and all these lesbian women got that thing started and then a lot of other women jumped on the bandwagon. And the hue and cryI don't know if you remember, it was a little phrase"total reproductive freedom." You remember that? Total reproductive freedom...in other words, vile sex life with no consequenceright back to that freedom cry again. And Betty Friedan said, "Women must have abortion as a backup to contraceptive failure."
And then came the ERA and the ERA said, "All right, if it's okay for women to have freedom, if everybody's supposed to have total reproductive liberation then we've got to have ondemand abortion at tax payers' expense. And they advocated that. "Women are not equal to men unless they are rid of childbearing responsibilities," said the ERA.
Then along came the population people, the Planned Parenthood people saying, "If we keep having babies, we're all going to be sitting on top of each other. There won't be any food." Remember all that? You don't hear that anymore, but you used to hear that. We're all going to be all over each other. And nobody ever bothered to say that the entire population of the world right now can fit into the state of Rhode Island. But we were getting all kinds of lies and all kinds of halftruths from the Planned Parenthood Association about controlling population. And so that added to the impetus to abortion.
But the final blow was struck by the Supreme Court of the United States, supposedly the men most esteemed in our nation, the greatest men of wisdom, the wisest men of this entire land, who voted wholesale murder of babies on January 22, 1973 in their decision in the Roe vs Wade case in which they legalized abortion. And they violated the fourteenth amendment that no person shall be deprived of life without due process of law. They legalized murder. They did it because they were under the pressure of all of these accumulating responses from those who would destroy what God has made.
The court ignored the issue of life. It ignored the issue of personhood, when life begins, when personhood begins. It totally ignored that. They couldn't get into it, by the way, because if they had they would have had to admit that personhood begins at conception and that would have been a very difficult thing for them to deal with. So they totally ignored it in the entire decision. And they came up with the unspeakable conundrum of the fact that criminals have been successfully prosecuted for killing unborn children in an attack on a pregnant mother while the child is considered a nonperson if it's own mother decides to kill it.
In other words, you can only kill a baby if you're its mother. Otherwise you can't kill a baby unless you want to be criminally prosecuted. And only China has a more permissive abortion policy than the United States. It is reflective of a materialistic selfish atheistic ethic that is absolutely hostile to the sovereignty of God. And we are seeing in our country something that literally makes the holocaust of Nazi Germany in the massacre of six million Jews look like child's play.
Now somebody will ask the question, "Well, are we sure that at conception a real life begins?" There's no question about it. Professor of fundamental genetics at the University of Rene' de Carte(?) in Paris is a man name Dr. Jerome LaJeun(?). He summarizes it very well when he writes, "Life has a very long history, but each individual has a very neat beginningthe moment of its conception. The material link is the molecular thread of DNA. In each reproductive cell, this ribbon of DNA, roughly one meter long, is cut into 23 pieces, or chromosomes. As soon as the 23 paternally derived chromosomes are united through fertilization to the 23 maternal ones, the full genetic meeting necessary to express all the inborn qualities of the new individual is gathered and personal constitution takes place." Now that's at conception.
Further, he says, "At two months of age, the human being is less than one thumb length's from the head to the rump. He would fit at ease in a nutshell, but everything is therehands, feet, head, organs, brain. Which, by the way, since the fourth week or so has had selfconsciousness for the core has begun to form. His heart has been beating for a month already. His fingerprints can be detected. His little heart is beating 150 to 170 beats a minute. To accept the fact that after fertilization has taken place a new human being has come into being is no longer a matter of taste or opinion," end quote. Now that written by not a Christian but a doctor.
Well, that's the scene. And we could say a lot more about the ugliness of the scene, but you get the picture.
Now what does the Bible have to say? This morning, in the time that is left, and next Sunday, I want to point this out to you. But for this morning, I just want to give you one bottom line principle, then I'll give you another four or five next time. And that is this, this is where it all starts. The first biblical principle you must understand relating to abortion is this: conception is an act of God. Conception is an act of God. That's the bottom line. God creates personally and individually every human life. Don't for one moment be under the allusion of the deist who saw God as a great power starting a process and then backing out of it. And it all sort of works its own way out.
No. It is not that God started the creative process and we carry it on, it is that we carry on a process but God sustains that process and is aggressive and active and sovereign in that process. So that it isn't that God makes Adam and Eve and Adam and Eve make everybody else. It is that God starts a procreative process but is active in that process, bringing into existence all those people whom He has foreordained to life. That is His sovereignty.
Now Scripture makes this fact clear. Let me show you, you can look it negatively and positively. Just listen to some Scripture.
From the negative viewpoint. And we'll go back to the earliest perceptions of the Pentateuch and the book of Job and see how the saints of God in that time perceived this matter. In Genesis, for example, in chapter 20, we read this statement: "For the Lord had completely closed all the wombs of the house of Abimelech." In other words, the perception is..was that the women were not having babies because the Lord had closed the womb. God was in charge of who had babies.
In the sixteenth chapter of Genesis, the situation is that of Sarah, then called Sarai, and Abraham. And Sarah says to her husband, "The Lord has restrained me from bearing." In other words, they had the confidence that life was a gift from God and everyone who was bearing children was bearing because God energized it and anyone who was not was not because God restrained it.
In 1 Samuel 1 you have that wonderful story in chapters 1 and 2 of Hannah and the giving of birth of Samuel. And you remember in chapter 1 verse 5 and also chapter 1 verse 6, in both those verses Hannah is described in this way: "The Lord had shut up her womb. The Lord had shut up her womb." It's mentioned twice.
Now looking at it from the positive side, the Lord also opens the womb. In Genesis 17:16, God says to Abraham, "I will bless her," referring to Sarah, "and give thee a son also of her and she shall be the mother of nations." Now God says not only am I going to open Sarah's womb, but I'm going to allow as a result of the opening of her womb that all...a large number of people constituting a nation will become alive. So God says, "I'll open her womb."
In Genesis 21:2, it says Sarah conceived, bore Abraham a son in his old age, at the set time of which the Lord had spoken to him. God is sovereign. God has foreordained who will live and when they will live. Life is in His hands.
In Genesis 25, we have the situation with Isaac. And he went to the Lord, it says in verse 21, and prayed to God because his wife was barren. And the Lord heard his prayer, it says, and Rebecca his wife conceived. Why? Because God answered his prayer and God gave her conception.
You remember I mentioned a moment ago 1 Samuel 1, "The Lord had shut the womb of Hannah?" Well, after she pours out her heart, the Lord hears her prayer and in 1 Samuel 1:19 and 20 it says the Lord remembered her, "Therefore it came to pass after she had conceived that she bore a son and called his name Samu el." El being the name of God and she called him that saying, "Because I have asked him of the Lord." She knew that her ability to conceive and bring forth a child, that child, was because of God's creative act.
And in that beautiful story of Ruth and Boaz and their coming together in marriage, chapter 4 of Ruth, verse 13 says, "Boaz took Ruth and she was his wife. And when he went in unto her, the Lord gave her conception." I love that statement, "The Lord gave her conception, and she had a son."
And then there was Manoah. And Manoah and his wife in Judges 13, "And the angel of the Lord appeared to the wife of Manoah and said to her, Behold, now thou art barren and bearest not, but thou shalt conceive and bear a son." And God gave to Manoah's wife a son. You remember his name was Samson, a judge in Israel. But God had to give her that conception.
In Isaiah 43:7, on a broader scale, the Lord looks at the whole of the nation of Israel, all the individual people, and He says, "I have created him for My glory, I have formed him, yes, I have made him." And God takes responsibility as the creator for every Jew constituting the nation of Israel.
Now these passages tell us that God is the power behind conception, that every life that begins begins because God has foreordained that life to begin. I believe that once that life begins in the plan of God, that life is eternal. And by God's grace, when an infant is aborted, that infant lives forever in the presence of God in the fullness of what God intended in its original creation.
Now there are other passages that enrich this truth and I want to share just a few of them with you. Look at Job with me for a moment. I want to take you on a quick tour of a few verses. In Job chapter 10 verse 8, Jobof courseis now in a situation where God is allowing the devil to assault him and all kinds of things are going wrong in his world. And he cries out to God with a most interesting argument, or a most interesting perspective in Job 10:8. He says: "Thine hands have made me and fashioned me." And that's a very intimate terminology, as if he was the product of the clay in the hands of God Himself. "Thine hands have me and fashioned me together round about, yet Thou dost destroy me." In other words, his paradox is how can You be letting all this evil come into my life when You're the one that made me? Did You make me to destroy me?
But further as he discusses that God is his maker, verse 9, "Remember, I beseech Thee that Thou hast made me as the clay and wilt Thou bring me into the dust again? Hast Thou not poured me out as milk and curdled me like cheese?" You've produced me, I'm the product of Your efforts. "You have clothed me with skin an flesh and have fenced me with bones and sinews, You have granted me life in favor and Your care has preserved my spirit."
In other words, You made me body and spirit. You formed me. You made me. That's the testimony of Job...perhaps the most ancient book of all the Old Testament. That is a very early and accurate perception, that God is the creator of all.
In Job 31, verse 15, Job again says, "Did not He who made me in the womb make him? And did not one fashion us in the womb?" In other words, God is the one who creates that one.
Now let me say something right here. Beloved, this answers all these other questions that really are pointless, like: what about a rape? Or, what about the death of the mother? Or, what about incest? Or, what about deformity? The point is any creature created in a womb is created by whom? By God and therefore is not up to the discretion of any human being as to its worthiness to live. This is the issue.
In Job 33 and verse 4, Job approaches it from another view here in the testimony of Elihu, "The Spirit of God hath made me and the breath of the Almighty hath given me life." And so he gives testimony to the fact that God is the creator.
Psalm 22, quickly, verses 9 and 10 adds to our understanding and enrichment of this truth. In Psalm 22 verse 9 we read, "But Thou art He," he's speaking of God, the Lord, "Thou art He who took me out of the womb." David says, "You took me out of the womb, You made me hope on my mother's breasts. I was cast upon Thee from the womb. Thou art my God from my mother's body." In other words, God, You've been involved in my life since I was in my mother's womb, You are the one who planted me in her womb, You are the one who preserved me in her womb, You brought me out of her womb and You've placed me on her breast.
How about Psalm 100, do you remember that wonderful familiar Psalm that we all learned as children? "Make a joyful noise unto the Lord all ye lands. Serve the Lord with gladness, come before His presence with singing." Then verse 3, do you remember it? "Know ye that the Lord He is God, it is He who hath made us and not we ourselves." Men don't make men, God makes men. He uses the human procreative process, but it is He who ordains life.
In Psalm 104, verse 30 says, "Thou sendest forth Thy Spirit, they are created." Creation is a work of the Spirit of God.
And then that absolutely beautiful statement made in Psalm 127 verse 3. This is such an important statement. "Lo, or beholdan exclamationchildren are an heritage from the Lord and the fruit of the womb is His reward." Children come from the Lord. Children are not an accident. They are not an inconvenience. They are not symptoms of a venereal disease. Children are not a disruption. Children are a gift from God. He gives them life for His own holy purposes. And even when men kill that life, I believe once that life is life, it exists forever and the Lord will bring that aborted infant into the fullness of his intention for it to glorify Him in eternity.
In Ecclesiastes 11 verse 5, a most interesting verse here, "As thou knowest not what is the way of the wind." You don't know how the wind works, you don't understand it. "Nor how the bones grow in the womb of her who is with child, so thou knowest not the works of God who makes all." You can't know how the wind blows. You can't see it, you can only feel it. You can't know how a fetus grows, how it becomes a child, you can't know the work of God. That is the work of God. The point of the verse that I want you to note is that the wind and the womb are the work of God.
Turn to Isaiah 44. In Isaiah 44, the testimony of Isaiah adds to this. In verse 1 he says, "Yet now hear, O Jacob, My servant, in Israel whom I have chosen," He identifies the fact that He had chosen them to be His people. Then in verse 2, he says, "Thus saith the Lord that made thee and formed thee from the womb." Again God identifies Himself as the one who forms from the womb. Verse 24, same thing again, "Thus saith the Lord, Thy redeemer and He who formed thee from the womb, I am the Lord who makes all things."
Chapter 45, again, beginning in verse 9, and just picking some highlights out, "Woe to him that fights with his maker." Boy, that's pretty straight, isn't it? When you abort a baby, you're fighting with God the creator. And he says later in verse 9, "Shall the clay to him that fashioned it, What are you making?" In other words, a derisive thing what right do you have to make that? Do you have a right to say that, to question the maker? "Woe to him," verse 10 says, "that says to his father, Why did you beget? Or the mother, What have you brought forth? What right do you have?" In other words, who would ever think to question the one who gives birth? Who would strive with God?
"Thus saith the Lord," verse 11, "the holy one of Israel and his maker. Ask Me of things to come concerning My sons and concerning the work of My hands, command ye Me I have made the earth and created man upon it. I, even My hands, have stretched out the heavens and all their hosts have I commanded," and so forth. In other words, the whole point of this passage is: would you ever ask God what right He had to make a person or to make a planet or to make anything? It's all His creation.
Isaiah 49:5, "And now saith the Lord who formed me from the womb to be His servant." And here Isaiah has the sense that he himself was formed in the womb by God. And then Jeremiah 1 is a good parallel to that. It says about another prophet, Jeremiah, "Before I formed thee in the womb, I knew thee." Boy, that's a tremendous statement. Before he was even conceived in the womb of his mother, God knew that Jeremiah was a person who would exist. "Before I even formed you in the womb, I knew you. And before you came out of the womb, I set you apart and ordained you a prophet to the nations."
Now when you strike a blow against something that God has created, someone that God has created, you're striking a blow against the sovereign intended purpose of God. By the way, when he says in verse 5, "I knew thee," the word is the word oida, and it means a rational experimental kind of knowledge, not a distant detached kind. Already in the mind of God, Jeremiah was a reality, an intimate reality before his own conception.
The testimony of the Apostle Paul is not unlike this. In Galatians 1:15, "When it pleased God who separated me from my mother's womb and called me by His grace." Paul had the sense of being the work of God even from his mother's womb.
How about John the Baptist? When the angel comes to Zechariah and says, "Your wife is going to have a baby and the child that is in her will be filled with the Holy Spirit even from his mother's womb," and goes on to tell about this child being John the Baptist. "This child a forerunner of the Messiah. He'll be great. He'll lead many people to righteousness. He'll drink neither wine nor strong drink." And it goes on to describe this man.
It was not some nameless nonpersonal blob in the womb of Elizabeth, it was the prophet of God. It was not a nameless blob in the womb of the mother of Jeremiah, it was a prophet of God. It was not a nameless appendage to the body of the mother of Isaiah, it was the prophet of God. In fact, when the testimony of Mary and Elizabeth came together in Luke chapter 1, the babe leaped for joy. And Elizabeth even said to Mary that she would be the mother of the Lord. And when Mary conceived through the Holy Spirit, she had in her not some appendage that was discretionary as to whether it should be retained, but she had in her the incarnate Son of God. And may I suggest to you that the incarnation did not begin in Bethlehem. It began in conception and Jesus so totally identified with humanity that Jesus was fully human, even identifying as an unborn infant from conception to death. And when the angel came and announced to Joseph that his wife was pregnant, "Because that which is conceived," Matthew 1:20 says, "in her is of the Holy Spirit and she shall bring forth a son and you shall call His name Jesus, for He shall save His people from their sins." He wasn't describing some non descript blob, some nonpersonal appendage, some potential life, but the very Son of God as yet unborn but a person.
So, the testimony of Scripture is marvelous, it's marvelous. Just to strengthen that. In Luke 1:41 it says, "Elizabeth heard the greeting of Mary, the babe leaped in her womb." Now that word "babe," brephos, brephos in English, is the word for babe. But it's speaking there of an unborn babe.
In Luke 2 verse 12, in Luke 2 verse 16, in Luke 18 verse 15 and 16, that's four other places, the same word is used. Every other time it's used it's used of a born baby, of a born baby. So the New Testament writer and the Holy Spirit use the same word "baby," brephos, for that child born or unborn. Once conceived it became a baby. And it was a baby unborn until it was a baby born.
You say, "Well, do you mean that even if it's deformed, even if it's crippled or even if it's defective, it's still the work of God?" Listen to Exodus 4:11, "Who maketh the dumb, or deaf, or the seeing, or the blind? Have not I, the Lord?" Yes, yes, the Lord made all. And let me tell you something that I've learned in my life. Some of the most handicapped people in the world are not handicapped physically but they're handicapped mentally and emotionally. I can't think of any more handicapped people than abortionists. To say that because a person has a physical disability they are less than a creature of God is ludicrous. That's not God's purpose.
Now, what we've establishedand this is what I want you to understandis that life begins at conception and conception is an act of God. No matter what kind of person is there, man has no discretionary right to take that life, that is murder of the first degree. Even the blind man in John 9, the disciple said, "Why is he blind? Who sinned, this man or his parents? And Jesus said, Neither, but for the glory of God." Let God have His glory. Let Him fulfill His purpose.
Somebody says, "Well what about rape? And what about this...?" That is never an issue...never an issue. I always remember reading a beautiful story about a little black girl in Pennsylvania, just had her thirteenth birthday. She was attacked by a white man and she was raped. And she was pregnant. And some months later she gave birth to a little baby. Could have had an abortion...might have in this day and time. But she didn't. That little baby grew up to become one of the most beloved people American society has ever known, the dear and precious sweet lady in whom the grace of Christ was radiant. She made her mark, first of all, on society as a beloved actress. Later became known for the song, "His eye is on the sparrow." Her name is Ethel Waters. There are thousands of Ethel Waters in the world. Who can judge? Certainly not you, not unless you want to fight God who gives life. Let's bow in prayer.
Father, thank You for this beginning to understand Your Word. Thank You for a clear word that life is Your gift, not ours to take. We pray that You would speak peace to any who are here with troubled hearts because they've already done this. Bring them the grace of forgiveness in Christ. Help us to stand for Your truth and Your Word against an evil generation. And, Father, I pray for everyone here, that each of us might know You personally in Jesus Christ, that we might live for Your glory, that we might obey Your Word, that we might love Your people, that we might extend Your Kingdom.
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Increasing transparency of materials and chemicals used in textiles
In order to enable recycling of textile waste, which kind of information do recyclers need?
* More specific and comprehensive information on fibre composition that goes beyond the information given on current care labels
* Information on chemicals used along the value chain (e.g. dyes, finishes, ...)
* Information on accessories (e.g. zips, trims)
* Information on use of recycled fibres
* I do not know
* Information on whether a textile was designed for recyclability
* Other (please specify)
Which medium is best suited to provide the relevant information to sorters and recyclers?
* A data carrier which is automatically recognized and read out in the sorting and recycling plants (e.g. NFC or RFID transponders)
* Documents accompanying the product
* Textile labels or markings indicating the required information directly on the textile product (by way of attaching a label or tag, ...)
* I do not know
* Other (please specify)
Are you in favour of introducing a digital product passport for textile products?
* No
* Yes
* It depends
Please briefly explain your selection:
In which areas do you see the need to develop and harmonise standards in order to enable recycling of certain textile products?
* Decision criteria on whether a product should be prepared for reuse or be destined for recycling
* Sorting criteria for post-consumer textile waste (e.g. different fractions depending on material)
* Limiting the combinations of different materials
* Disassembly of textiles (e.g. removal of hardware such as trims, zips)
* Limiting the use of problematic chemicals
*
* Standardization of product information
* Common test methods to declare recycled content in textile products
Definining textile fibre recycling (in distinction to downcycling)
* I do not know
* Other (please specify)
Which product groups could be among the first for which to develop and introduce minimum design requirements for recyclability – such as maximum thresholds for problematic chemicals, maximum thresholds for seconds required to remove zips, etc.?
* T-shirts
* Sweaters
* Jeans
* Socks
* Sportswear (e.g. tracksuits, skisuits, swimwear)
* Outdoor wear (e.g. raincoats, jackets)
* Bed linen
* I do not know
* Towels
* Other (please specify)
In addition to mandatory minimum design requirements and mandatory declaration of chemicals, what can be done at EU level to promote the use of safe chemicals in textiles that are compatible with recycling?
* Provide a positive list of suitable chemicals that can be used in textile products – similar to the approach taken by the EU Cosmetics Regulation
* Promote knowledge transfer and exchange
* Promote best practice examples on a central website
* Make REACH more circularity-friendly – i.e. restrict and set limits for textile products beyond the chemicals that are on the list of substances of very high concern (SVHC)
* Promote the use of Standard 100 by OEKO-TEX®
* Align EU legislation with the voluntary initiative Zero Discharge Hazardous Chemicals (ZDHC)
* Make it mandatory to apply the Standard 100 by OEKO-TEX® or similar standards for textile products on the EU market
* Adapt EU Eco-label criteria to promote textiles that are easy to recycle
* Investigate the effects of chemicals additives (e.g. dyes, ...) on circularity of products they are used in
* I don not know
* Other (please specify)
Introducing targets for separate collection, recycling and for preparation for re-use
Do you see a need for introducing targets for separate collection of textile waste, for recycling and preparation for re-use at European level?
* No
* Yes
In your view, when should such targets become effective on EU level?
* 2030
* 2025
* 2035
* Other (please specify)
* I do not know
What level should separate collection targets (by weight of all textile waste disposed of via public collection systems) start at?
* 30 %
* 50 %
* 40 %
* 60 %
* Other (please specify)
* I do not know
What level should preparation for re-use targets (by weight of all textile waste collected through public collection systems) start at?
* 10 %
* 20 %
* 15 %
* I do not know
* Other (please specify)
What level should recycling targets (by weight of all textile waste collected through public collection systems) start at?
* 15 %
* 10 %
* 20 %
* Other (please specify)
* I do not know
Introducing Extended Producer Responsibility (EPR) for textiles with ecomodulation of fees
In order to foster the circular economy, many stakeholders argue for an EU-wide mandatory extended producer responsibility scheme for textiles. Do you agree?
*
* Yes
No
In order to avoid competition between discarded textiles collected for reuse and recycling, many stakeholder suggest separate targets for reuse and recycling. Do you agree?
* Yes
* No
In order to improve textile product design, ecomodulation of EPR fees (i. e., charging producers lower fees for products designed according to certain criteria) is suggested based on criteria such as recyclability, recycled content, reusability etc. Do you agree that ecomodulation of fees can play a crucial role in fostering improved product design?
* No
* Yes
Who should in your view be responsible for organising the collection, sorting and treatment of textile waste?
* Producers through the creation of a Producer Responsibility Organisation (PRO)
* Both municipalities for public waste bins (while producers contribute financially) and, optionally, producers though individual, certified take-back-systems
* Municipalities (while producers contribute financially)
* Should be decided on a case-by-case basis
* I do not know
Regulating the incineration* of unsold textiles
*incineration here includes energy recovery
Which of the following policy options is best suited in order to incentivise circular design of textiles and to drive innovations?
* Introducing a ban on incineration and landfilling of unsold textiles by 2025
* Introducing high taxes on incineration and landfilling of unsold textiles by 2025
* Introducing a ban on incineration and landfilling of unsold textiles by 2030
* Introducing high taxes on incineration and landfilling of unsold textiles by 2025 and announcing a ban on incineration and landfilling of unsold textiles by 2030
* None of the above. Please explain:
* I do not know
Stimulating demand for recycled fibres
One way to stimulate the demand for high quality recycled fibres is to introduce mandatory recycled content for specific textile products. What should be the minimum requirement to qualify as "recycled content"?
* Complying to Global Recycled Standard (GRS)
* Fibres derived from qualified fibre-to-fibre recycling technologies (excluding e.g. fibres made from PET bottles)
* Positive life-cycle assessment (considering e.g. energy intensity of recycling)
* Minimum number of cycles the fibre can make when fed back to recycling
* Other (please specify)
* I do not know
For which textile products would it be most sensible and feasible to introduce a low mandatory recycled content by 2024?
* T-shirts
* Socks
* Jeans
* Medical robes
* Textiles for furniture
* Bed linen
* Outdoor wear (e.g. raincoats and jackets)
* I do not know
* Sportswear (e.g. tracksuits, skisuits, swimwear)
* Other (please specify)
What makes more sense in your view to stimulate the demand for recycled textile fibres?
* Introducing a target for circular textiles (e.g. textiles that are proven to be recyclable and/or repairable or contain a certain percentage of recycled content)
* Introducing mandatory recycled content for specific textile products
* Both are needed
* I do not know
In order to address price differences between recycled fibres and virgin fibres and to create a level playing field, what would your order of priority be regarding the following policy options?
Please rank the options from most favoured (top) to least favoured (bottom) by dragging from the left to the right box. You can leave the category "other" in the left box, if you want and continue without answering on the other item in the pop-up window when clicking on Next.
Your ranking
* Ecomodulate EPR fees – with perceptibly lower fees for recyclable textiles
* Increase taxes on virgin fibres
* Introduce reductions of value added tax (VAT) for circular textiles, including textile products that contain recycled fibres
* Introduce labour tax reductions for circular business models, including high quality textile recycling and sorting
* Other
Developing EU-wide end-of-waste criteria
In order to foster the circular economy, many stakeholders argue for an EU-wide harmonised definition of end-of-waste criteria for textiles. Difficulties regarding interpretation of end-of-waste criteria in different Member States complicate processes and create uncertainties for circular economy actors.
Where do you see relevant difficulties related to current end-of-waste criteria?
* Regarding administrative procedures within single Member States
* Regarding trade between EU Member States and third countries
* Regarding trade between EU Member States
* I do not see any difficulties
* Other (please specify)
What are important aspects in your view that need to be specified in EU wide end-ofwaste-criteria for textiles?
* Clarifying that the waste status ends when (a) collected textile wastes are prepared for re-use and (b) collected textile wastes are recycled
* Clarifying that sorted textile waste destined for recycling – if it meets certain criteria – is considered to be a product and is not classified as waste
* Specifying criteria for certain textile products and/or materials and material mixes that need to be met in order to be classified as product
* Introducing a new category for textile waste that is sorted, recyclable and destined for recycling, so that it is neither classified as waste nor as a product
* I do not know
* Other (please specify)
Who should develop these criteria?
* Academia
* Civil society / NGOs
* Business
* Policy and administration
* Other (please specify)
In order to improve sourcing of used textiles for re-use and recycling of needed quality, quantity and type, many stakeholders suggest easing the transboundary movement of secondary raw materials via a review of the Waste Shipment Regulation. Do you agree?
* No
* Yes
Why not? Please briefly add
Transboundary movement of secondary raw materials is not regulated in the Waste Shipment Regulation, as secondary raw material is not classified as waste but as a good.
Wrap Up
Which of the following policy instruments would you prioritise in order to promote textile fibre recycling in the EU?
Choose your top 3.
After selecting your top three from the drop-down menu, you can leave all other options empty and continue without answering on the other items in the pop-up window when clicking on "Submit".
Ensuring transparency on chemicals used in textile production through mandatory product information and digital product passes
Top 3
Introducing minimum design requirements for recyclability of textiles
Regulating the incineration (including energy recovery) and landfilling of unsold textile products
Introducing targets on separate collection, recycling and reuse of discarded textiles
Introducing EPR schemes with ecomodulation
Top 2
Specifying and harmonising end-of-waste-criteria for textiles
Introducing mandatory recycled content for specific textile products
Top 1
Introducing tax breaks for circular textiles (including recyclable textiles and textiles made from recycled fibres)
Other
Would you like to make any additional recommendation to strengthen textile re-use and textile fibre recycling in Europe?
Green Public Procurement in textiles (such as uniforms, workwear, towels, linen, etc.) can be improved in selection criteria of public procurement processes. When assessing ability to perform a contract, contracting authorities should take into account specific properties related to environmental aspects. This includes, for example, recyclability or recycled content of procured textiles.
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T.K. RIPPER A MULTIDISCIPLINARY GROUP PROJECT
by
LOGAN HUNT
A Senior Project submitted
in partial fulfillment
of the requirement for the degree of
Bachelor of Science in Industrial Engineering
California Polytechnic State University
San Luis Obispo
Graded by: __________________________ Date of Submission:________________
Abstract
The purpose of this project is to provide solutions to objectives that require an industrial engineering (IE) background for a multidisciplinary group senior project. The group is creating a portable winch pulley, dubbed the TK Ripper, which will be used for extreme water sports. The group is interested in creating a business using this product, and has forecasted demand for the next three years. The objectives that were assigned from the group were a flow process chart, the cost of producing the product themselves in their own facility, the cost of producing the product if outsourced to China, how many units needed to sell at a profit, and a theoretical layout for their machine shop they may acquire in the future. Each objective was delivered and the results were satisfactory.
Outsourcing the product to China leads to a savings of $448.68 per unit. However, the cost of the minimum amount of material required to be purchased from suppliers in China was nearly five times the cost in the U.S. If the group wishes to have a lower investment cost, it is recommended that they produce the product themselves in the United States.
Table of Contents
Introduction
This report was conducted for a group of Cal Poly mechanical engineering students. This is a mechanical engineering group senior project consisting of five members including myself. Three members are mechanical engineering students; Zach Mckibbin, Vincent Priolo, and Charles Volk. The other member, excluding myself, is John Fitzergerald, a business student. For their senior project, the mechanical engineering students are creating a portable extreme sports winch, named the T.K. Ripper, that will be used for water sports such as wakeboarding or waterskiing.
The idea originated from Vincent himself, who is also the sponsor for this project. The ME students want to create a real-time business by producing the product in a facility within San Luis Obispo County and selling it on the market, most likely via internet. The team needed help in solving problems out of their expertise and educational background. As a result they added members from different majors; one being John, who is attaining double degrees in marketing and entrepreneurship, and the other being me, a general engineering student concentrating in Industrial Engineering. The members tasks were as follows: John was in charge of market research for the product and developing a business model for the group for production of the TK Ripper; Zach, Vincent, and Charles were in charge of designing and building the TK Ripper; and I was assigned objectives with Industrial Engineering aspects. The objectives assigned included:
* Evaluate welding methods and recommend the best method to use
* Fully Allocated Cost of the product
* Comparison of production alternatives such as producing the product in-house or outsourcing it to China in terms of cost per unit
* Break Even Analysis
* Facilities design and planning for their machine shop
* Flow Process Chart
To evaluate welding methods articles and journals were researched and inputs from professionals such as welding technicians and professors from Cal Poly were considered. With this research AHP analysis is used to recommend the best alternative. The flow process chart will be constructed using the Bill of Materials (BOM). To create the BOM, the part's list and assembly steps will be needed. For cost estimation, suppliers were researched for quotes on materials, welding and factory floor workers' wages, average rent and utilities in San Luis Obispo County, equipment needed, and other factors that will be needed to calculate the fully allocated cost (FAC), which consists of material cost, labor cost, and overhead cost. The same method is used calculate the FAC if the materials and assembly process was to be outsourced to China, except assumptions and rough estimates of wages and the cost of materials will need to be used. For facilities layout, local technicians were consulted on how a machine shop is usually designed, then use facilities planning methods to create a layout, such as SLP (Systematic Layout Planning).
4
Background
The objective of the group was to provide a less expensive way for people to participate in extreme water sports, expand the locations where extreme sports can be performed, and develop a plan for a profitable company. The problem for someone to participate in extreme water sports today is the large initial investment of a boat. If someone wants to water ski, wake board, or perform other water sports, they'll need a boat. Not only will they need this but also a trailer for the boat and a large vehicle, preferably a truck, to tow both the trailer and the boat. This can be expensive and takes a large amount of time to set up; to maneuver the boat into the water from the dock and to place the boat onto the trailer when returning to the dock.
The solution was to design a product that forgoes this large investment; the TK Ripper. The TK Ripper is a small pulley system machine that can be placed on a beach or dock. Once placed, the rope can be strung out for several hundred yards, then pull any one holding onto the rope back to the winch. The T.K. Ripper can pull a rider from 0-30 mph (with adjustable speeds) for 1000 ft and be placed anywhere on a beach of a lake or ocean.
The TK Ripper consists of a gasoline engine, an aluminum frame, a centrifugal clutch, and a spool of 1,000 feet of line. The engine provides power to the clutch which then transfers the power to the spool, which reels in the line. The rider holds on to the end of the spooled out line when participating in their extreme sport of choice and are pulled toward the TK Ripper. The entire product is given strength from an aluminum frame and covered with sheet metal for protection from rotating parts. A control system will eventually be incorporated into the design allowing for superior ease of use. The TK Ripper is 3 feet long, 1.5 feet wide, and 16 inches tall.
The group wants to create a business model because they want to place this product into a production run with a selling price of $2000 or less per unit. The group is interested in renting space to be used as a facility within San Luis Obispo County. They are also interested in know the cost of the product if produced domestically and if outsourced to China, a large manufacturing country known for cheap labor and materials. In the next section, many Industrial Engineering topics are discussed and provided the tools needed to complete the objectives.
Literature Review
Welding Alternatives
The three welding methods that are suitable for welding the aluminum tubes and plate together to create the frame are shielded metal arc welding (SMAW), gas metal arc welding (GMAW), and gas tungsten arc welding (GTAW).
SMAW is a manual arc welding process that uses a consumable electrode coated in flux to lay the weld. An electric current, in the form of either alternating current or direct current from a welding power supply, is used to form an electric arc between the electrode and the metals to be joined. As the weld is laid, the flux coating of the electrode disintegrates, giving off vapors that serve as a shielding gas and providing a layer of slag, both of which protect the weld area from atmospheric contamination [8]. Because of the versatility of the process and the simplicity of its equipment and operation, shielded metal arc welding is one of the world's most popular welding processes and is ideal for maintenance and repair welding and can be used in the field.
GMAW, sometimes referred to by its subtypes metal inert gas (MIG) welding or metal active gas (MAG) welding, is a semi-automatic or automatic arc welding process in which a continuous and consumable wire electrode and a shielding gas are fed through a welding gun. A constant voltage, direct current power source is most commonly used with GMAW, but constant current systems, as well as alternating current, can be used [8]. Today, GMAW is the most common industrial welding process, preferred for its versatility, speed and the relative
ease of adapting the process to robotic automation. Unlike welding processes that do not employ a shielding gas, such as shielded metal arc welding, it is rarely used outdoors or in other areas of air volatility [12].
GTAW, also known as tungsten inert gas (TIG) welding, is an arc welding process that uses a nonconsumable tungsten electrode to produce the weld. The weld area is protected from atmospheric contamination by a shielding gas (usually an inert gas such as argon), and a filler metal is normally used, though some welds, known as autogenous welds, do not require it. A constant-current welding power supply produces energy which is conducted across the arc through a column of highly ionized gas and metal vapors known as a plasma [8]. GTAW is most commonly used to weld thin sections of stainless steel and non-ferrous metals such as aluminum, magnesium, and copper alloys. The process grants the operator greater control over the weld than competing procedures such as shielded metal arc welding and gas metal arc welding, allowing for stronger, higher quality welds. However, GTAW is comparatively more complex and difficult to master, and furthermore, it is significantly slower than most other welding techniques [12].
A quantitative method this report used was AHP, or Analytic Hierarchy Process. AHP is a structured technique for dealing with complex decisions. It is a method for ranking decision alternatives with multiple criteria. Users of the AHP first decompose their decision problem into a hierarchy of more easily comprehended sub-problems, each of which can be analyzed independently. Once the hierarchy is built, the decision makers systematically evaluate its various elements in pair-wise comparisons. In making the comparisons, the decision makers can use concrete data about the elements, or they can use their judgments about the elements' relative meaning and importance. The AHP converts these evaluations to numerical values that can be processed and compared over the entire range of the problem. In the final step of the process, numerical priorities are calculated for each of the decision alternatives. These numbers represent the alternatives' relative ability to achieve the decision goal and allow a straightforward consideration [3].
Flow Process Chart
To design a layout, a flow process chart is needed to help understand the flow of material. A flow process chart gives an overview of the flow within a facility. It is also needed to understand labor costs as it explains some of the machining steps involved in making the parts needed [2]. However to start a flow process chart, a bill of materials (BOM) will need to be created first. A BOM is a structured parts list as it contains the information of the parts needed for a product plus information on the structure of the product. The structure of the product is broken down into levels, with level 0 being the finished product. Level 1 applies to subassemblies and components that feed directly into the final product; level 2 refers to the subassemblies and components that feed directly into the first level, and so on [6].
Cost estimation
Cost estimation is used to basically estimate the cost of a product or prototype before production begins. The goal is to estimate the cost as close as possible to the actual cost. Cost estimation, in this case, is also known as FAC, or Fully Allocated Cost. FAC is a sum of the material cost, direct labor cost, and overhead cost [11]. Overhead is broken into two categories:
ongoing and initial investment. Ongoing consists of fixed costs, such as rent, utilities, and transportation, and indirect labor. Indirect labor are employees that do not handle the product; they are usually office workers and the floor manager. Initial investment is the investment to the equipment bought for the company. Overhead is difficult to calculate per product, so the cost is spread out over the forecast demand of that year [11].
Offshore Outsourcing
When deciding whether to in-house the production line or outsource the process to another company or maybe even offshore to another country, it's best to understand the definitions of these terms.
Outsourcing is often viewed as involving the contracting out of a business function to an external provider. Almost any conceivable business practice can be outsourced for any number of stated reasons. The reasons the TK Ripper team would want to outsource would be: improve quality - achieve a step change in quality through contracting out the service with a new service level agreement; knowledge -access to intellectual property and wider experience and knowledge; operational expertise - access to operational best practice that would be too difficult or time consuming to develop in-house.
Offshoring describes the relocation by a company of a business process from one country to another—typically an operational process, such as manufacturing, or supporting processes, such as accounting. The economic logic is to reduce costs. Offshore outsourcing is the practice of hiring an external organization to perform some business functions in a country other than the one where the products or services are actually developed or manufactured.
After its accession to the World Trade Organization (WTO) in 2001, the People's Republic of China emerged as a prominent destination for production offshoring. China has a huge advantage of a large labor force offered at an extremely low hourly wage. The average Chinese factory worker can have a wage as low as 3% of the wage of a factory worker in the U.S. [14]. Rules are also more lenient and factory employees work 12 hours or more, as compared to the 8 hour days in the U.S. Materials purchased in China are more cheaply as well. There are areas of concern if choosing to offshore. Companies have a higher risk of losing control and visibility across their extended supply chain. Also, the transfer of knowledge outside a country may create competitors to the original companies themselves. Chinese manufacturers are already selling their goods directly to their overseas customers, without going through their previous domestic intermediaries that originally contracted their services [15].
Facility
To plan for a facility design, the systematic approach should be used. The steps are as follows: define the problem or goals; define the departments; define relationships between the departments; identify the space requirements; develop alternative layouts; evaluate the layouts; select a layout; and define, install, and maintain the layout [2]. Since this group will be starting small, research into small machine shops over large machine shops was needed. From research and advice from local Cal Poly technicians, the small machine shop the group would work in is most likely a centered fixed-material layout. This layout calls for most of the assembly process to take place in the center of the shop and have material flow to it from around the shop [12]. This is usually the case when one or two workers build one unit at a time.
Design & Methodology
In this chapter all requirements, specifications, overall approach, calculations, and specific steps including methods used to arrive at the solution of each objective is discussed.
Welding Alternatives
The T.K. Ripper has an aluminum frame consisting of several aluminum square tubing and an aluminum plate. The aluminum is welded together to form a strong frame and base for the rest of the material to be assembled in. There are several different welding methods that could be undertaken to build this product. The three main methods that were evaluated and are able to weld this frame are SMAW, GMAW, and GTAW. The definitions of each are described in the Literature Review. SMAW is the cheapest because of its low cost of equipment needed (no bottle, gas hose, flow meter, or wire feeder needed). It has a faster deposition rate than GTAW but slower than GMAW, and is ideal for shop jobs and field work such as repair or maintenance. It also requires more experience than GMAW but not nearly as much as GTAW. GMAW has a more complex and expensive process than that required for SMAW, but is both faster and easier to use than GTAW and SMAW, making it ideal for production welding. GTAW is used for high quality welding. Its quality is higher than the other two methods, but it is much slower than both and requires significant operator skill. The group wants a process that is quick, cheap, and requires little skill. SMAW is the cheapest, but GMAW is the quickest, easiest to learn, and is also cheap when considering the high production factor. Since it is also ideal for production welding, it is the perfect method for the group since they wish to put the product into production. However a quantitative analysis felt was needed and to do so an AHP analysis was applied.
AHP (Analytical Hierarchy Process) is a method for ranking decision alternatives with multiple criteria. Rankings are based on pair-wise comparisons between alternatives on each criterion. The alternatives are SMAW, GMAW, and GTAW. The criteria are cost, quality, the amount of time to complete a weld, and experience needed to use the method. When an alternative is compared to another alternative, it is given a value from the Standard Preference Scale (see Figure 1)
AHP Standard Preference Scale
1. Equally Preferred
2. Equally to moderately preferred
3. Moderately preferred
4. Moderately to strongly preferred
5. Strongly preferred
6. Strongly to very strongly preferred
7. Very Strongly preferred
8. Very strongly to extremely preferred
9. Extremely preferred
Figure 1
For example, when comparing SMAW to GTAW under the criterion "cost", the value was given a 4, meaning SMAW is "moderately to strongly preferred" to GTAW, because SMAW is much more cheaper. These comparisons are done in a matrix with all the criteria, as shown in Figure 2. After all the values are assigned to each pair-wise comparison, each column is summed up, and then each pair-wise comparison is divided by that sum, giving a percentage. Each row is then summed together (See Figure 2).
Figure 2
This is done with each criterion. The criteria are then place in pair-wise comparisons with each other. This shows the importance of one criterion to another. The pair-wise comparison of the criteria with their values is shown in Figure 3. These values were given by the group. After the values are assigned, the same process as described above is performed. The percentages of the criteria matrix is then multiplied with the alternative matrix and fractions of each alternative are produced. This is the ranking of each alternative, with the largest fraction being the highest rank; this is the alternative that should be chosen. The full process with the results of the final rankings is shown in Appendix B.
Figure 3
Flow Process Chart
The team wanted flow process chart so as to have a clear understanding of the assembly process of the T.K. Ripper. A flow process chart may be viewed as an analog model of the overall production process; it also helped in designing the facility layout which will be discuss later in this section. To build a flow process chart, a bill of materials (BOM) is needed. A BOM is a structured parts list and explains what material is needed and how much. It is a list of subassemblies with all the parts needed for each one. Each subassembly is produced at a
certain level, with Level 0 being the finished product. Using the BOM, a flow process chart was created. Both the BOM and the flow process chart can be seen in Appendix A.
Cost Estimation
The team is interesting in knowing the cost of producing the TK Ripper if they were to purchase materials within the U.S. and assemble the product themselves. This is called domestic production. However the group is also interested in knowing the cost estimation of the product if offshore outsourced to a foreign country with materials purchased within that country. Outsourcing is to contract a process to a 3 rd party while offshoring is to relocate a production process to another country, usually where cheap labor and material is available. Offshore outsourcing is contracting a process to a 3 rd party in another country. In this case, the group is interested in knowing the cost of having another company in China build the product with materials purchased in China. China was chosen because it is known worldwide as a country possessing very cheap labor and materials.
The cost the group is interested in knowing is the FAC, or the Fully Allocate Cost per unit produced. The FAC is the sum of three different costs: material cost, labor cost, and overhead cost. Material cost is the cost of the amount of material used per unit. Labor costs are the wages and hours the direct labor have incurred while producing a single unit. Direct labor is labor that is directly involved in assembly the product. Overhead is split into two categories: ongoing and initial investment. Ongoing is the cost that incurs annually, such as rent, utilities, and indirect labor. Indirect labor costs are employees that do not handle the product or inventory physically or directly; they are employees such as accountants, managers, or janitors.
Initial investment is the cost of purchasing all the equipment needed for the company for that year.
Before proceeding with the cost estimation it is important to know the demand forecast. This was analyzed by the marketing student, whose demand forecast for the first year is 100 units, 200 units for the second year, and 400 units for the third. The process of obtaining the costs for both domestic and offshore outsource production will now be explained.
DOMESTIC: BUSINESS PLAN
For domestic production the group will rent a small facility to be used as a machine shop and storage of inventory. The group wishes to have enough material stored in the facility to produce a minimum of 12 units. They will receive the material from the suppliers, build the units themselves, and ship finished inventory to the customer using a 3 rd party transport company such as UPS. In the view of their supply chain, they are the manufacturer of the product and sell directly to customers, thus bypassing the retailer and distributor. It is mainly a pull process as they will only build-to-order.
Material Cost
Using the parts list, a search for the materials was done online. The suppliers were contacted through email or by phone to acquire quotes for the amount of material needed. The amount of material needed, using the BOM, for 12 units were used to order the quantity from each supplier. The amount of material needed, the cost per unit of each material, the total cost of the material per T.K. Ripper, ROP, and the inventory turnover per year is shown in Appendix C. ROP (Reorder Point) is the point when inventory needs to be reordered from suppliers. This happens when the amount of material in storage depletes to a certain limit. The equation for
ROP is shown:
ROP = L x D
L = Lead time (days)
D = demand (units) per day
Lead time is the amount of time it takes for material to be received from a supplier once an order was sent. The average lead time for all the material is five days and this was used for
each material. If the ROP is below the amount of material in storage that can produce 12 units, then there is no need to order more material over the minimum amount of material needed. If
ROP is at or above 12, the minimum amount of material will need to increase in order to produce more than 12 units. ROP can only be used when the demand is assumed to be
constant, which we are assuming for the sake of this analysis.
The "Order every (days)" column shows how many days it will be until a reorder of that material is needed. It is basically the ROP converted from units to days. This was done by taking
the minimum amount of units needed on hand (the raw material in storage) and dividing by the demand per day.
Labor Cost
For the first year, the group has decided that only one worker will be used to weld and assemble the product and a factory worker to be used for inventory handling, including
receiving and shipping. For the demand forecast given, this is fine up till year 3 in which case a second welder will be needed. The welder’s cost per unit was calculated by multiplying the
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hours it takes to weld and assemble each unit, the hourly wage, and taxes. It takes 16 hours to build each unit. For hourly wage, the lowest range in the national average was used. The factory worker's cost per unit was calculated by dividing the amount of time in hours it takes to receive, inspect, and store material for every reorder plus the time it takes to package finished inventory, multiplied by average hourly wage and taxes. The factory worker only works when material arrives (to handle and store) and to package and ship each unit. Both the cost of the welder and the factory worker were summed to find the total labor cost per unit. This is displayed in Appendix C.
Overhead (OH)
For ongoing, the cost of rent per square foot was done by researching available machine shop/warehouse space in San Luis Obispo County and finding the average. The same was done with utilities. The amount of square footage was estimated in the facility design. One clerical employee will be used as the indirect labor aspect and is a full time job (8 hours a day). Indirect labor was calculated by multiplying hourly wage for 8 hours per day for 260 days, which is the amount of working days in a year in the U.S., and dividing by the amount of units produced for that year. Indirect labor, rent, and utilities are summed to find the ongoing cost.
The initial investment overhead cost was calculated by summing all the equipment purchased that year and dividing it by the life span of the equipment and again by the demand per year. All the equipment is purchased the first year and no more is needed until year 3, where another welding kit and assembly bench will be needed for the second welder/assembly
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worker. The ongoing and initial investment costs are then summed to find the total overhead cost per unit.
Initial Investment = (cost of equipment) / (life span in years) / (demand)
Total OH = Ongoing + Initial Investment
After finding the material, labor, and overhead cost, they are summed to find the FAC.
FAC = Material Cost + Labor Cost + OH Cost
FFSHORE
O O
UTSOURCE
: B
USINESS
P
LAN
For offshore outsourcing the team would buy materials from Chinese suppliers, store the inventory in a rented warehouse in China, deliver material to a Chinese manufacturing company where units will be produced, transport via air freight to U.S., store the finished inventory in a small rented warehouse in San Luis Obispo Country, and ship to customers when orders are received. Instead of using a build-to-order model the group will receive 12 completed units, except for packaging when sending to a customer, for every reorder. With this model, the company's supply chain is more push when compared to domestic production because they will have 12 completed units in storage, waiting to be shipped out when a customer order is received.
Material
The minimum amount of material needed will still be for 12 units for the sake of comparison. To find materials to use from China, international supplier websites such as Thomasnet.com were used to research quotes. However only a few suppliers responded; to
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find the price of the rest of the materials, ratios were used. These ratios are the fractions of the price of materials from China to the price of the same materials from the U.S. This ratio is then applied to similar parts and materials from the parts list. The ratios of the found parts and materials from China are shown below:
Clutch (USA)
$65.99
Rope (USA)
244
Clutch (China)
Ratio
Average Ratio:
Aluminum Plate:
China
USA
Ratio
51.91
0.786634339
0.700694218
Cost/lb
2.169
4.97
0.436418511
Once the ratios were applied, the material cost per unit was found. The minimum quantity to order from Chinese suppliers is far larger than the amount we can order in the U.S.
For some materials, the minimum order is enough to build 50 units. For others, such as the aluminum tubing and plate, the amount of material ranges from 300 units to nearly 1000 units.
Labor
For the sake of comparison, only one welder from the Chinese manufacturer will be used. One factory worker will be used to handle inventory in the Chinese warehouse and
another for the U.S. warehouse. The time to build each unit will be assumed to be 16 hours.
Chinese workers have 12 hour days instead of the usual eight here in the U.S., so the production rate of each unit will be faster. The hourly wage is also considerably lower, which
Rope (China)
Ratio
150
0.614754098
was found using China's national average. This wage was applied to both the welder and the factory worker. The same calculations from the domestic section above were then performed to find the total labor cost per unit.
Overhead
The same method from the domestic section was applied to find the cost of rent, utilities, and indirect labor. Since the minimum quantity to order from suppliers is much larger in China, the Chinese warehouse would need more storage space as compared to the facility in the U.S. in the domestic production alternative. This was estimated by searching for the storage racks that would be used in the warehouse and using the square footage of the racks for the space they take occupy. Square footage was also estimated for pallet and packaging storage, receiving, trucker's lounge, trash disposal, receiving holding area, office, and handling equipment maneuvering. The U.S. warehouse would be much smaller since it only needs to store 12 completed units, plus space for receiving, packaging and office.
The indirect labor includes one clerical employee at the Chinese warehouse and another at the U.S. warehouse. Transportation costs, from transporting the material to the Chinese manufacturer and delivering finished inventory using air freight, was also considered. For transporting to the manufacturer, using a delivery truck was assumed. Average gas prices in China were found using online search. Air freight prices were taken from a company's website, which varies depending on the total weight you want transported.
Initial investment includes equipment purchased to be used in both the Chinese and U.S. warehouses. Since a larger amount of material would be stored in China, larger storage racks and a forklift would be needed, but equipment such as a welding kit and machining benches would not be needed because another company is manufacturing the product. The data for overhead cost is shown in Appendix C.
The information and calculations for computing the FAC is once again the sum of the material, labor, and overhead costs. This was only done for year 1 as the group only wants to compare domestic and outsourcing for that year.
Breakeven
This analysis is used to find how many units, sold at a given price, will need to be sold to have zero profit, or the "breakeven" point. Each unit sold past this point becomes profit. The equation for profit is:
Profit = R – TC
Where R is revenue and TC is total cost. Revenue is the product of the unit sale price and the volume sold:
R =r x Q
Where r is unit sale price and Q is volume sold. Total cost is given in the equation below:
TC = FC + vQ
Where FC is fixed cost and v is unit variable cost. Unit variable cost is the sum of the material cost and the labor cost. Fixed cost is the ongoing overhead cost for that year. With these equations, the breakeven point can be found using the equation below:
Q = FC / (r - v)
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Since the goal of the group is to sell this product at or below $2000, r will equal $2000. The other variables change depending on the year. ROR (Rate if Return) is the return on each unit sold, which is the percentage of the ratio unit sale price to unit variable cost. The tables that show the assigned values, breakeven point, and ROR with graphs depicting revenue versus total cost are shown in Appendix D. The break even analysis was only considered for domestic production.
Facility Design
The facility layout was developed for the domestic production. The systematic approach from IME 443 Facilities Planning and Design class was used to plan and design the layout. Some steps were taken out however, such as develop alternative layouts and the evaluation of the alternatives. These were not included because the group's facility is much too small for more than one alternative to be considered and there is no original design to improve upon.
Define Goals:
The goal of this facility design is to create a theoretical layout that allows an efficient assembly process by proper placement of machining benches, assembly bench, and proper storage of equipment and material. This layout is not based on an existing building; it is only supposed to give the group an idea of the dimensions they should look for when renting a warehouse.
Define Departments:
Using the flow process chart as a guide, the departments were defined as: Receiving and Holding, Inventory, Machining Area, Assembly Area, Finished Goods, and Office. Receiving and
Holding is the area used to receive raw material from shipments, inspect the material, and maybe hold incase the material carries defects and thus is rejected. The Inventory department is the storage of inventory; the Machining Area is the area where material is machined, which consists of a horizontal band saw, drill press, and a lathe and mill. The Assembly Area consists of the workbench and surrounding area used to weld the aluminum frame and assemble the units including packaging. Finished Goods is the area where finished units are stored; even though the units are build-to-order, they will still need to be stored when waiting to be delivered or if an order was canceled. The Office department is the area used for office affairs, such as accounting, meetings, and other work of the similar type.
Systematic Layout Planning (SLP):
SLP was used to develop department relationships and space requirements, and ultimately a final layout. SLP creates a relationship diagram, a space requirement table, space relationship diagram, and a block diagram. The relationship diagram is used to see the value of the departments to one another in a pair-wise comparison. Comparisons are given relationship values, with A being "absolutely necessary", E as "especially important", I as "important", O as "ordinary closeness okay", and U as "unimportant". The space requirements determine a department's block size, which is a visual for how much space the department requires. The space relationship diagram shows the blocks and their relationships with other departments using connecting lines as a visual understanding. The thicker the line, the more important the block is to the other block it is connected to; this determined the placement of the blocks. The placement of the blocks is called the block diagram, where blocks are placed in relation to each other depending on the value codes they were given. This process is shown in Appendix E.
After the block diagram was created, a layout was designed by placing equipment in their respected departments.
Equipment:
The equipment needed for the assembly process are a MIG welder, bench drill press, a horizontal band saw with a bench, lathe and mill with a bench, and an assembly table. Three storage racks with shelves will be needed to store inventory: one for the engines and two for the rest of the inventory. All parts besides the engine are small parts and will be stored in bins (24 bins total). The aluminum square tubing, before they are cut, come in 20 ft lengths and will be stored on a wall mounted cantilever. When they are cut into smaller pieces to be welded later, they will be stored in a bin.
No pallets will be used because of the small amount of material ordered from suppliers. Since the minimum amount of material needed to produce 12 units will stay the same through year three, the only area that will be expanded to accommodate growing demand will be the assembly area; another assembly table will be needed for the second welder. The dimensions of the machine benches, assembly benches, and storage racks are shown in the final layout design diagram in the Results section.
Results
In this chapter all the solutions to the objectives that were assigned are discussed as well as an economic analysis
Welding Alternatives
As explained in the design section, AHP was used to choose the best welding method with a ranking system of the alternatives as the result. The ranks are: GMAW at 0.56; SMAW at 0.32; and GTAW at 0.12. GMAW has the highest ranking and therefore it is recommended that the group use this method to weld together the aluminum frame. This confirms the research done before the analysis; the group wants to use a method that is fast and easy to learn, and GMAW fills those requirements better than SMAW and GTAW. The full process is shown in Appendix B.
Cost Estimation
DOMESTIC
Material Cost
The full parts list, with the amount of material purchased, total cost, and the cost per TK Ripper, is shown in Appendix C. As the table shows, the cost per unit (a unit being a single TK Ripper) is $1373.19 and the total material purchased from suppliers is $17,293.56.
Labor Cost
The cost of with welder is $231.41 per unit and the cost of the factory worker is $13.78 per unit. This is a total labor cost of $245.19 per unit.
Overhead
For ongoing costs, the rent is $9498 per year, or $94.98 per unit for 100 units, and the Utilities are $5.76 per unit. The clerical employee will cost $263.74 per unit. This equates to a total of $364.49 ongoing costs. For initial investment, the total equipment cost is $3667.60, and with a life span of 15 years for all the equipment and a demand of 100 units, this equates to $2.45 per unit. The sum of the ongoing and initial investment costs gives a total OH cost of $366.93. The OH costs are shown in Appendix C.
FAC After finding the material, labor, and overhead costs we can now calculate FAC as shown in Table 1 below.
| Monetary Cost, Year 1 | |
|---|---|
| Days/year | 365 |
| Demand/yr | 100 |
| Demand/day | 0.27 |
| Lead Time in days | 5 |
| ROP | 1.37 |
| Material in Inventory (units) | 12 |
| Reorder every | 36.5 |
| Inventory turnover (times/yr) | 10.00 |
| Material Cost ($/unit): | 1373.19 |
| Total Labor Cost ($/unit) | 245.19 |
| Total OH cost ($/unit) | 366.93 |
| FAC | 1985.31 |
Table 1
As shown, the FAC is $1985.31. This completes the goal of being able to sell the TK Ripper at $2000 for each unit. The ROP is 2 units, so when the amount of material reaches this limit, a reorder of material must be made. This equates to a reorder every 37 days. For year two
and three the material and labor costs stay the same but overhead changes because of the increase in demand. This is shown below in Table 2.
Table 2
| Monetary Cost, Year 2 | | | Monetary Cost, Year 3 | |
|---|---|---|---|---|
| Days/year | 365 | | Days/year | 365 |
| Demand/yr | 200 | | Demand/yr | 400 |
| Demand/day | 0.55 | | Demand/day | 1.10 |
| Lead Time in days | 5 | | Lead Time in days | 5 |
| ROP | 2.74 | ~ 3 | ROP | 5.48 |
| Material in Inventory (units) | 12 | | Material in Inventory (units) | 12 |
| Reorder every (days) | 21.90 | | Reorder every (days) | 10.95 |
| Replenish (times/yr) | 16.67 | | Replenish (times/yr) | 33.33 |
| Material Cost | 1373.19 | | Material Cost | 1373.19 |
| Labor Cost | 245.19 | | Labor Cost | 245.19 |
| Overhead: | | | Overhead: | |
| Ongoing | 182.25 | | Ongoing | 91.12 |
| Initial Investment | 1.02 | | Initial Investment | 0.66 |
| Total OH Cost | 183.27 | | Total OH Cost | 91.78 |
| FAC | 1801.65 | | FAC | 1710.16 |
As the results show, overhead in year two decreases to $183.27 per unit, creating an FAC of $1801.65. For year three, the overhead decreases to $91.78 and the FAC lowers to $1710.16, a noticeable drop. The ROP in year two is three units, or a reorder every 22 days, and 6 units in year three, or a reorder every 11 days. The cost per unit decreases continually through year three. When comparing year three to year 1, the FAC decreases by 14%. This decrease shows a substantial increase in profits which will be explained in the breakeven analysis next.
OUTSOURCE
* Year 1
Material Cost
The full parts list from China, with the amount of material purchased, total cost, and the cost per TK Ripper, is shown in Appendix C. As the table shows, the cost per unit (a unit being a single TK Ripper) is $935.80 and the total material purchased from suppliers is $51,641.50. The materials from China are much cheaper, however the minimum amount to order from suppliers is 3 times more than here in the U.S., which means there will be a higher investment cost if the group decides to outsource.
Labor Cost
The cost per unit of the workers is as follows: $18.67 for the China welder; $1.06 for the China factory worker; $8.27 for the U.S. This is a total labor cost of $27.99 per unit. This information is shown in Appendix C.
Overhead Cost
The ongoing and initial investment costs are shown in Appendix C. For a warehouse space of 1745 sq ft in China, the rent is $7957.20 per year, or $79.57 per unit for 100 units. The utilities for the China warehouse are $4.81 per unit. In the U.S. warehouse, for a space of 322 sq ft the rent is $2998.46 per year, or $29.99 per unit, with utilities of $1.86 per unit. Under indirect labor, the cost of the clerical employee in the China warehouse is $24.34 per unit and $131.87 for the U.S. worker. As you can see, the worker in China works full time and is extremely cheap while the U.S. worker only works part-time (because of the large amount of time it takes to sell and reorder 12 units) and costs nearly 6 time as much. The cost of
transporting materials from the warehouse in China to the Chinese manufacturer, from the manufacturer to the U.S. via air freight, and from an airport in the U.S. to the warehouse in San Luis Obispo County is $284.98. The total ongoing cost is $557.41.
The initial investment cost is $7575, or $5.05 per unit. It is more than the initial cost in the domestic alternative because of the forklift and extra racks in the China warehouse. The total over head cost is $562.46 per unit.
FAC
With the material, labor, and overhead cost acquired, the FAC becomes $1,536.63 per unit when using the first year demand forecast of 100 units. This is 22.6% cheaper than the FAC for the domestic alternative during the first year. If assuming a selling price of $2000, the ROR becomes 30.2%, a much more attractive return than domestic production. However, the initial material cost in this alternative is considerably higher than the material investment in the U.S., which means a larger loan we be needed to pay for this investment.
Even if the FAC from outsourcing is cheaper than the FAC from domestic production, there are problems and costs that are not accounted for. These problems are the increase in difficulty of communicating with suppliers and the manufacturer from China, unforeseen delays, production problems resulting from the poor communication, and even the increased risk of the design being copied and stolen. These problems can translate to more costs which are difficult to estimate.
Breakeven
The values assigned to the variables in the analysis for each of the three years are shown in Appendix D. Each breakeven analysis is accompanied with a graph to help visualize where the breakeven point is. This analysis is assuming the selling price stays at $2000 per unit. The analysis shows that the breakeven point is at around 92 or 93 units, so units sold past this point is when the team will begin making profit. The breakeven point stays constant over the three years because the variable cost and fixed cost stays constant. This is because material and labor costs do not change in any of the three years and neither does fixed cost, since the team does will use the same facility and no change in indirect labor.
As shown in the graphs, as the demand increases, the group's profits increase substantially. First year's profits are around $3000; second year's profits are around $41,000; and third year's profits are $117,000. This means profits increase 1367% from year one to year two, and an increase of 285% from year two to year three. The ROR on each unit sold stays the same for each year because the variable cost does not change (labor and material costs stay constant for all three years). However, if measuring against the FAC, the ROR starts small and increases ever year. This is shown below in Table 3.
Table 3
Facility Design
After the analysis of SPL, a layout was designed. This can be seen below in figure 4. As displayed, the facility will need to be at least 34 ft by 30 ft and works as a central fixed-material layout. The receiving and holding area is at the entrance, the inventory is located on the left and top of the layout, the machine benches are located on the left, the office is in the lower left corner, the assembly tables are located in the middle, and the finished inventory is located on the left side near the entrance. The entrance is a roll up door that is 10 ft wide. The Receiving and holding area will be around 135 sq ft and the office 98 sq ft. The office can either be a separate room or in the open.
The flow of material throughout the facility is as follows: material from suppliers is received through the dock entrance at the receiving and holding area. The material is unloaded and inspected, then stored in inventory. Inventory is split into three categories: engine, small inventory, and aluminum tubing. The Tecumseh engines are stored on the engine rack, which has three shelves. These engines measure 1 ft by 1 ft in length; this rack can accommodate 18 engines, more than enough for the 12 unit requirement. The aluminum square tubing is shipped from the supplier at 20 ft lengths and would be stored on wall-mounted cantilevers. The rest of the material and parts will be stored in bins on the two small inventory racks, which are the same racks as the engine rack.
The aluminum tubes flow to the machining benches that hold the horizontal band saw and the drill press. The tubes will be by the band saw, than stored in the small inventory rack. How many tubes are cut is up to the group. The aluminum plate also flows to the machine bench to have holes drilled into it by the drill press. After all the plates are drilled, they are
stored into small inventory. When the assembly starts, the welder will grab the sawed aluminum tubes and a plate and weld the frame together on the assembly table with the MIG unit located nearby. Since the workbench is located next to the inventory storage, there will be short travel time between the assembly table and inventory. After the product is finished and packaged, it is stored on the finished inventory rack until it can be picked by the shipper.
The layout allows for expansion in the assembly area. This is because of the forecast of increased demand in year 3, in which case a second welder will be needed. This means both welders will be working concurrently, so a second workbench will be needed, hence the area for expansion. Since this is a theoretical layout, the group should look for warehouse space with these dimensions or close to them.
Conclusion
The purpose of this report is to provide solutions to Industrial Engineering objectives provided by a group of Cal Poly mechanical engineering students who are working on their senior project. They are creating a winch engine to be used for extreme water sports. They also have their minds on creating a real-time business with this product and needed help from other students to answer questions out of their scope. The IE objectives that were assigned were: create a BOM and flow process chart; an evaluation of welding methods with a recommended selection of one; cost estimation of the product if produced domestically; cost estimation of the product for the first year if outsourced to China; a breakeven analysis of the domestic alternative; and finally a layout design for their machine shop.
The FAC for the domestic alternative in all three years is under $2000, which was a goal of the team. The breakeven analysis shows the team that they will need to sell more than 92 units to start making a profit. The FAC for the outsourced alternative looks very attractive, however the initial investment cost in materials is much greater in China than in the U.S. This means a larger loan would be needed to pay for these materials and a longer payback period will result.
Each objective was accomplished during the duration of this project. This project exposed to me a great deal of project management, as I had to deal with multiple objectives with sometimes delayed information, such as a part's list. Overall, this was a great project to be a part of and I recommend any future IE students to jump on multidisciplinary group projects.
Bibliography
[1] American Welding Society. Standard Welding Terms and Definitions. Miami, FL, 1989.
[2] Tompkins, J.A., White, J.A., Bozer, Y.A., & Tanchoco, J.M.A. Facilities Planning, 3 rd Edition. John Wiley & Sons, Inc. Hoboken, NJ, 2003.
[3]Hillier, Frederick S., Lieberman, Gerald J. Introduction to Operations Research, 9 th Edition. McGraw-Hill, NY, 2010.
[4]Chopra, S., Meindl, P. Supply Chain Mangement: Strategy, Planning, and Operation, 4 th Edition. Pearson Education, NJ, 2010.
[5] Wickens, C.D., Lee, J.D., Liu, Y., Gordon Becker, S.E. An Introduction to Human Factors Engineering, 2 nd Edition. Pearson Education, NJ, 2004.
[6] Kanawaty, George. Introduction to Work Study, 4 th Edition. International Labour Office, Geneva, 1992.
[7] Tucker, Spencer A., Profit planning decisions with the break-even system. New York, NY, 1980.
[8] Saunders, H. L. Welding aluminum : theory and practice. Washington, D.C. : The Association, c1991.
[9] Greer, Willis R; Nussbaum Jr., Daniel A. Cost analysis and estimating : tools and techniques Springer-Verlag, New York, c1990.
.
[10] Blank; Tarquin, Engineering Economy 6 th Edition, McGraw-Hill, 2005.
[11]Riggs, Henry E., Financial Economic Analysis for Engineering and Technology Management, 2 nd Edition. Wiley, Hoboken, NJ, 2004.
[12] Minnick, William H. Gas Metal Arc Welding Handbook Textbook. Tinley Park: GoodheartWillcox, 2007.
[13] Reid, R. Dan; Sanders, Nada R. Operations Management. John Wiley & Sons, 2002.
[14] Roberts, Dexter. "How Rising Wages Are Changing The Game In China". Businessweek, March 27, 2006
[15] "China: The Pursuit of Competitive Advantage and Profitable Growth". Boston Consulting Group, July 2003
Appendices
Appendix A
Table A.1: BOM
| Product: | TK Ripper | Prepared by: |
|---|---|---|
| Date: | 4/20/2010 | |
| Level | Part Name | Quantity/unit |
| 0 | TK Ripper | 1 |
| 1 | Brakes | 1 |
| 1 | Wheel System | 1 |
| 1 | Main Assembly | 1 |
| 2 | Disk Brake Hub | 1 |
| 2 | Disk Brake Hub Bolts | 6 |
| 2 | Disk Brake | 1 |
| 2 | Brake Caliper | 1 |
| 2 | Caliper Bracket | 1 |
| 2 | Wheel Axle | 1 |
| 2 | Conduit Bracket | 2 |
| 2 | Wheels | 2 |
| 2 | Spool | 1 |
| 2 | Rope | 1 |
| 2 | Body Assembly | 1 |
| 3 | Spool Adapter | 3 |
| 3 | Axle | 1 |
| 3 | Spool Rods | 1 |
| 3 | Spool Washer | 8 |
| 3 | Nuts | 8 |
| 3 | Engine Mount Bolt Washers | 3 |
| 3 | Engine Mount Bolts | 1 |
| 3 | Spool Ends | 2 |
| 3 | Bearings | 2 |
| 3 | Engine | 1 |
| 3 | Frame | 1 |
| 4 | 1"x2"x1/8" Aluminum Tubing | 11 ft |
| 4 | 1"x1"x1/8" Aluminum Tubing | 10 ft |
| 4 | Aluminum Plate | 1 |
| 4 | Engine Bolts | 4 |
| 4 | Clutch | 1 |
| 4 | Clutch Springs | 1 |
| 4 | Torque Converter | 1 |
| 4 | Chain | 1 |
| 4 | Sprocket | 1 |
| 4 | Motor | 1 |
| 4 | Nuts | 4 |
Appendix B
Figure B.1: AHP
| AHP Analysis for Welding Alternatives | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|
| Welding Alternatives: | | | SMAW | GMAW | GTAW | | | | | |
| Criteria: | Cost | Time | Quality | Experience | | | | | | |
| | | | | | | | | | Criterion Score | |
| Cost | SMAW | GMAW | GTAW | | Cost | SMAW | GMAW | GTAW | | |
| SMAW | 1.00 | 3.00 | 4.00 | | SMAW | 0.63 | 0.69 | 0.50 | 0.61 | |
| GMAW | 0.33 | 1.00 | 3.00 | | GMAW | 0.21 | 0.23 | 0.38 | 0.27 | |
| GTAW | 0.25 | 0.33 | 1.00 | | GTAW | 0.16 | 0.08 | 0.13 | 0.12 | |
| | 1.58 | 4.33 | 8.00 | | | 1.00 | 1.00 | 1.00 | 1.00 | |
| Quality | SMAW | GMAW | GTAW | | Quality | SMAW | GMAW | GTAW | | |
| SMAW | 1.00 | 0.50 | 0.20 | | SMAW | 0.13 | 0.11 | 0.12 | 0.12 | |
| GMAW | 2.00 | 1.00 | 0.50 | | GMAW | 0.25 | 0.22 | 0.29 | 0.26 | |
| GTAW | 5.00 | 3.00 | 1.00 | | GTAW | 0.63 | 0.67 | 0.59 | 0.63 | |
| | 8.00 | 4.50 | 1.70 | | | 1.00 | 1.00 | 1.00 | 1.00 | |
| Time | SMAW | GMAW | GTAW | | Time | SMAW | GMAW | GTAW | | |
| SMAW | 1.00 | 0.33 | 5.00 | | SMAW | 0.24 | 0.22 | 0.42 | 0.29 | |
| GMAW | 3.00 | 1.00 | 6.00 | | GMAW | 0.71 | 0.67 | 0.50 | 0.63 | |
| GTAW | 0.20 | 0.17 | 1.00 | | GTAW | 0.05 | 0.11 | 0.08 | 0.08 | |
| | 4.20 | 1.50 | 12.00 | | | 1.00 | 1.00 | 1.00 | 1.00 | |
| Experience | SMAW | GMAW | GTAW | | Experience | SMAW | GMAW | GTAW | | |
| SMAW | 1.00 | 0.33 | 7.00 | | SMAW | 0.24 | 0.23 | 0.47 | 0.31 | |
| GMAW | 3.00 | 1.00 | 7.00 | | GMAW | 0.72 | 0.68 | 0.47 | 0.62 | |
| GTAW | 0.14 | 0.14 | 1.00 | | GTAW | 0.03 | 0.10 | 0.07 | 0.07 | |
| | 4.14 | 1.48 | 15.00 | | | 1.00 | 1.00 | 1.00 | 1.00 | |
| Alternative | Cost | Quality | Time | Experience | | | | | | |
| SMAW | 0.61 | 0.12 | 0.29 | 0.31 | | | | | | |
| GMAW | 0.27 | 0.26 | 0.63 | 0.62 | | | | | | |
| GTAW | 0.12 | 0.63 | 0.08 | 0.07 | | | | | | |
| Criteria | Cost | Quality | Time | Experience | | | | | | Criterion Score |
| Cost | 1.00 | 3.00 | 0.33 | 0.25 | Criteria | Cost | Quality | Time | Experience | |
| Quality | 0.33 | 1.00 | 0.17 | 0.20 | Cost | 0.12 | 0.20 | 0.17 | 0.07 | 0.14 |
| Time | 3.00 | 6.00 | 1.00 | 2.00 | Quality | 0.04 | 0.07 | 0.08 | 0.06 | 0.06 |
| Experience | 4.00 | 5.00 | 0.50 | 1.00 | Time | 0.36 | 0.40 | 0.50 | 0.58 | 0.46 |
| | 8.33 | 15.00 | 2.00 | 3.45 | Experience | 0.48 | 0.33 | 0.25 | 0.29 | 0.34 |
| | | | | | | 1.00 | 1.00 | 1.00 | 1.00 | 1.00 |
| Criteria Rank | | | Ranks | | | | | | | |
| Cost | 0.12 | | SMAW | 0.324441 | | | | | | |
| Quality | 0.07 | | GMAW | 0.556948 | | | | | | |
| Time | 0.47 | | GTAW | 0.118612 | | | | | | |
| Experience | 0.34 | | | | | | | | | |
Appendix C
Table C.1: Material Cost (domestic)
| Order Amount | | | | | | |
|---|---|---|---|---|---|---|
| | | | | | Total Cost/TK Ripper | |
| Material | Order Amount | Cost/order | Cost/unit | Parts per unit | | Total Units Worth |
| Tecumseh Engine | 12 | $4,800.00 | $400.00 | 1 | $400.00 | 12.00 |
| Torque Converter | 12 | $2,006.16 | $167.18 | 1 | $167.18 | 12.00 |
| Clutch | 12 | $791.88 | $65.99 | 1 | $65.99 | 12.00 |
| Cluth Springs | 12 | $360.00 | $30.00 | 1 | $30.00 | 12.00 |
| Chain | 12 | $168.00 | $14.00 | 1 | $14.00 | 12.00 |
| Sprocket | 24 | $258.72 | $10.78 | 1 | $10.78 | 24.00 |
| Spool Adapter | 100 | $958.00 | $9.58 | 3 | $28.74 | 33.33 |
| Axle | 12 | $455.76 | $37.98 | 1 | $37.98 | 12.00 |
| Spool Ends | 24 | $191.52 | $7.98 | 2 | $15.96 | 12.00 |
| Spool Rods | 12 | $504.00 | $42.00 | 1 | $42.00 | 12.00 |
| Bearings | 24 | $223.20 | $9.30 | 2 | $18.60 | 12.00 |
| Wheels | 24 | $407.28 | $16.97 | 2 | $33.94 | 12.00 |
| Wheel Axle | 12 | $74.88 | $6.24 | 1 | $6.24 | 12.00 |
| Conduit Bracket | 24 | $20.16 | $0.84 | 2 | $1.68 | 12.00 |
| Rope | 12 | $2,928.00 | $244.00 | 1 | $244.00 | 12.00 |
| Disk Brake Hub | 12 | $300.00 | $25.00 | 1 | $25.00 | 12.00 |
| Disk Brake | 12 | $960.00 | $80.00 | 1 | $80.00 | 12.00 |
| Brake Caliper | 12 | $960.00 | $80.00 | 1 | $80.00 | 12.00 |
| Caliper Bracket | 12 | $8.16 | $0.68 | 1 | $0.68 | 12.00 |
| Nuts | 250 | $135.00 | $0.54 | 16 | $8.64 | 15.63 |
| Disk Brake Hub Bolts | 100 | $60.00 | $0.60 | 6 | $3.60 | 16.67 |
| Engine Mount Bolts | 50 | $11.50 | $0.23 | 4 | $0.92 | 12.50 |
| Engine Bolts | 50 | $9.50 | $0.19 | 4 | $0.76 | 12.50 |
| Spool Washer | 100 | $19.60 | $0.20 | 8 | $1.57 | 12.50 |
| Engine Mount Washer | 100 | $19.60 | $0.20 | 8 | $1.57 | 12.50 |
| Aluminum Frame | ------------------ | ---------------- | -------------- | -------------------- | --------------------- | ------------------------ |
| 1x2x1/8 (20 ft pcs) | 7 | $390.60 | $2.79/ft | 11ft | $30.69 | 12 |
| 1x1x1/8 (20 ft pcs) | 6 | $212.40 | $1.77/ft | 10 ft | 17.7 | 12 |
| 5.5x14x1/4 | 12 | $59.64 | $4.97 | 1 | $4.97 | 12 |
| Total Initial Material Cost | | $17,293.56 | | Total Cost per unit | $1,373.19 | |
Table C.2: Labor Cost (domestic)
Total Labor Cost $245.19
Table C.3: OH Ongoing Cost (domestic)
| Rent: | | | Utilities: | |
|---|---|---|---|---|
| Rent per mo ($/sq.f | 0.776 | | Kwh/mo | 459.14 |
| Space (sq.ft) | 1020 | | $/Kwh | 0.1046 |
| mo/yr | 12 | | mo/yr | 12 |
| cost/unit | $94.98 | | cost/unit | $5.76 |
| Clerical Employee: | | | | |
| Taxes | FICA | 0.124 | | Wage ($/hr) |
| | Mcare | 0.029 | | hrs/day |
| | FUTA | 0.054 | | days/yr |
| | UI | 0.034 | | Taxes |
| | SDI | 0.011 | | Cost/unit |
| | ETT | 0.001 | | |
| | Workers Comp | 0.015 | | |
| | Total | 0.268 | | |
| Total Ongoing per unit | $364.49 | | | |
Table C.4: OH Initial Investment Cost (domestic)
| Initial Investment | | |
|---|---|---|
| Equipment | Cost | Yr Purchased |
| gloves | 9.90 | 1 |
| apron | 17.70 | 1 |
| MIG gun pliers | 10.00 | 1 |
| drill press set | 29.00 | 1 |
| bench drill press | 177.00 | 1 |
| lathe | 200.00 | 1 |
| endmill set | 75.00 | 1 |
| assembly bench | 350.00 | 1 |
| basic tool set | 73.00 | 1 |
| horizontal band saw | 352.00 | 1 |
| MID welding package | 519.00 | 1 |
| wall mounted cantilever | 60.00 | 1 |
| storage racks (3) | 375.00 | 1 |
| machine tables | 800.00 | 1 |
| truck dolly | 20.00 | 1 |
| Office Equipment | 500.00 | 1 |
| Storage bins (24) | 100 | 1 |
| Total | 3667.60 | 1 |
| Life (yrs) | 15.00 | 1 |
| Cost/unit | 2.45 | |
Table C.5: Material Cost (outsourced)
| Order Amount (China) | | | | | | |
|---|---|---|---|---|---|---|
| | | | | Parts per unit | Total Cost/TK Ripper | |
| Material | Order Amount | Cost/order | Cost/unit | | | Total Units |
| Tecumseh Engine | 50 | $14,000.00 | $280.00 | 1 | $280.00 | 50.00 |
| Torque Converter | 50 | $5,857.00 | $117.14 | 1 | $117.14 | 50.00 |
| Clutch | 50 | $2,595.50 | $51.91 | 1 | $51.91 | 50.00 |
| Cluth Springs | 50 | $1,051.00 | $21.02 | 1 | $21.02 | 50.00 |
| Chain | 50 | $490.50 | $9.81 | 1 | $9.81 | 50.00 |
| Sprocket | 50 | $335.50 | $6.71 | 1 | $6.71 | 50.00 |
| Spool Adapter | 150 | $1,132.50 | $7.55 | 3 | $22.65 | 50.00 |
| Axle | 50 | $1,330.50 | $26.61 | 1 | $26.61 | 50.00 |
| Spool Ends | 100 | $559.00 | $5.59 | 2 | $11.18 | 50.00 |
| Spool Rods | 50 | $1,471.50 | $29.43 | 1 | $29.43 | 50.00 |
| Bearings | 100 | $652.00 | $6.52 | 2 | $13.04 | 50.00 |
| Wheels | 100 | $1,189.00 | $11.89 | 2 | $23.78 | 50.00 |
| Wheel Axle | 50 | $218.50 | $4.37 | 1 | $4.37 | 50.00 |
| Conduit Bracket | 100 | $59.00 | $0.59 | 2 | $1.18 | 50.00 |
| Rope | 34 | $5,100.00 | $150.00 | 1 | $150.00 | 50.00 |
| Disk Brake Hub | 50 | $876.00 | $17.52 | 1 | $17.52 | 50.00 |
| Disk Brake | 50 | $2,803.00 | $56.06 | 1 | $56.06 | 50.00 |
| Brake Caliper | 50 | $2,803.00 | $56.06 | 1 | $56.06 | 50.00 |
| Caliper Bracket | 50 | $24.00 | $0.48 | 1 | $0.48 | 50.00 |
| Nuts | 800 | $320.00 | $0.40 | 16 | $6.40 | 50.00 |
| Disk Brake Hub Bolts | 300 | $126.00 | $0.42 | 6 | $2.52 | 50.00 |
| Engine Mount Bolts | 200 | $32.00 | $0.16 | 4 | $0.64 | 50.00 |
| Engine Bolts | 200 | $26.00 | $0.13 | 4 | $0.52 | 50.00 |
| Spool Washer | 400 | $56.00 | $0.14 | 8 | $1.12 | 50.00 |
| Engine Mount Washer | 400 | $56.00 | $0.14 | 8 | $1.12 | 50.00 |
| Aluminum Frame | ------------------- | ------------------ | ---------------- | ------------- | ------------------- | |
| 1x2x1/8 (lbs) (5.8m segments) | 2000 | $2,600.00 | 1.3 | 11ft | $14.30 | 225 |
| 1x1x1/8 (lbs)(5.8m segments) | 2000 | $1,540.00 | 0.77 | 10 ft | 7.7 | 390 |
| 5.5x14x1/4 (lbs) | 2000 | $4,338.00 | $2.17 | 1.167 ft | $2.53 | 927 |
| Total Initial Material Cost | | $51,641.50 | | Total Cost per unit | $935.80 | |
Table C.6: Labor Cost (outsourced)
| Welder (China): | | Factory Worker (China): | |
|---|---|---|---|
| Hours/unit | 16 | Send out Material (12 units) | |
| Mo. Wage | 280 | Hours/time | 8 |
| Hours per day | 12 | Replenish Time/yr | 8.33 |
| Hours per Mo. | 240 | Wage ($/hr) | 1.17 |
| Wage ($/hr) | 1.17 | Cost per unit | 0.78 |
| # of workers | 1 | Restock material (50 units) | |
| Cost/unit ($) | 18.66667 | Hours/time | 12 |
| | | Replenish times/yr | 2 |
| | | Cost/unit | 0.2808 |
| | | Total Cost per unit | 1.06 |
| Factory Worker (USA) | | | |
| Taxes: | | Hours/day | 3 |
| FICA | 0.124 | Replenishment Time/yr | 8.33 |
| Mcare | 0.029 | Wage ($/hr) | 10.00 |
| FUTA | 0.054 | Total Cost per yr | 249.9 |
| UI | 0.034 | Units handled/time | 12 |
| SDI | 0.011 | Pckg & ship unit (hrs) | 1 |
| ETT | 0.001 | Taxes | 1.503 |
| Workers Comp | 0.25 | Cost per unit | 8.2665 |
| Total | 0.503 | | |
| Total Labor Cost per unit | 27.99 | | |
Table C.7: OH Ongoing Cost (outsourced)
Table C.8: OH Initial Investment Cost (outsourced)
| China | |
|---|---|
| Forklift | 5000 |
| Storage racks | 875 |
| Aluminum racks | 500 |
| Office Equipment | 1000 |
| USA | |
| Storage racks | 150 |
| Packaging Table | 50 |
| Total | 7575 |
| Life (yrs) | 15 |
| Cost/unit | 5.05 |
Appendix D
Table D.1: Year 1 breakeven
| Year 1 | | | | | |
|---|---|---|---|---|---|
| FC | 34866 | r | 2000 | ROR (%) | 23.36112 |
| v | 1621.26 | TC | 196991.6 | | |
| Q | 100 | R | 200000 | | |
| VC | 162125.6 | Profit | 3008.37 | | |
| | | Breakeven (units) | 92.05698 | | |
Table D.2: Year 2 breakeven
| Year 2 | | | | | |
|---|---|---|---|---|---|
| FC | 34866 | r | 2000 | ROR (%) | 23.36112 |
| v | 1621.26 | TC | 359117.3 | | |
| Q | 200 | R | 400000 | | |
| VC | 324251.3 | Profit | 40882.74 | | |
| | | Breakeven (units) | 92.05698 | | |
Table D.3: Year 3 breakeven
| FC | 34866 | r | 2000 | ROR (%) |
|---|---|---|---|---|
| v | 1621.26 | TC | 683368 | |
| Q | 400 | R | 800000 | |
| VC | 648502.5 | Profit | 116632 | |
| | | Breakeven (units) | 92.057 | |
Graph D.3: Year 3 breakeven
Appendix E
Table E.2: Space requirements
Figure E.2: Space Relationship diagram
Assembly Area
Machining
Area
Finished
Goods
Inventory
Office
Receiving
and
Holding
|
Words Matter
Erica Honoŕe & Sharon Brubaker
Grief Specialists
Tony (00:02):
Erica and Sharon, are sisters who began a grief journey in 2006, when Erica's 10-year old son, Austin drown together, they participated in a grief education program were so moved by this experience. They studied and became specialists so they could help the broken hearted find recovery. In 2015 tragedy struck the family. Once again, when Eric, his oldest son, Donovan was killed in a motorcycle accident, Eric and Sharon are committed to sharing their experiences of love, loss, and healing through this podcast. Now your grief specialists, Sharon and Erica.
Sharon (00:40):
Hey guys. Welcome back. Hey sisters, how have you been? How's your grief then this week? How have you been managing? We remember what it was like when the days just melted into nights and we cried all the time. My name is Sharon Brubaker and I am a grief specialist. I have my beautiful sister here, Erica, and we want to welcome you to our show.
Erica (01:08):
Hi sisters. Hi friends. Welcome back. This show is about grief. It's about pain. It's about sadness. It's about loneliness, but it's also about being silly cause you and I also banter back and forth. It shows about a lot of different things. It's amazing how we can take the topic of grief and apply it to almost every area of our lives.
Sharon (01:37):
It blows my mind sometimes, right? Blows my mind and what even, I think blows my mind even more is sometimes when I'm sitting and talking to a sister and I, and she'll be telling me a story or, or a woman friend, and I'm like that's grief. And when they get it, it's even more opening and exciting that they finally get it for the first time and they can call it what it is because we don't ever call it what it is.
Erica (02:07):
And that's one of the biggest challenges is that we don't know how to talk about grief. It's misnamed. I'm not diagnosed, but you know, people use other labels, depression, PTSD, trauma, but it's, it's really at the center of it all is grief. So it's good that we're putting this out there because we're giving people the dialogue, they need to say what's really happening in their lives and in their hearts.
Sharon (02:36):
Yeah. Oh yeah, totally cool. I feel like sometimes we are constantly reintroducing our show to everyone. When we know we have sisters that are following them, listen, women that contact us and they say, wow, your show made such a difference in my life today. But sometimes we're, we're constantly going back to the beginning because number one, I think most people wouldn't believe we would have a show that we would talk about this number. There's constantly new listeners coming in and they're like, I can't believe there was a show about this. And number three, we just need to know that we see you. We hear you. We're here for you. We remember what it was like.
Erica (03:13):
Yeah. And this is such a great space because this is scary. If you have just had a fresh loss and you don't know what to do, you don't know who to turn to. This is definitely a great place and a great resource to listen and know that it's normal. What's happening to you. It's normal, how you feel about it. And it's normal that your life is out of whack right now. So I love that. And we have this as a resource for people to turn to, to say, Oh my gosh I'm going to be okay
Sharon (03:45):
For the person whose life is not out of whack. Could you raise your hand? Right? I'm sorry. I had to make a comment on that.
Erica (03:57):
We got pandemic. It's you have fires here in California. We just had hurricanes. I mean, who's life is not out of whack right now.
Sharon (04:13):
So you take all that and then you add grief on top of it. Hello?
Erica (
04:19):
Yeah. Yeah. Give me a headache just thinking about it.
Sharon (04:23):
Definitely. Well, that's not even what we want to talk about today. We're not talking about, you came up with this topic that I thought was amazing. So why don't you introduce the topic to us?
Erica (04:34):
So, our topic today is Words Matter and you know, it came about from a very personal experience that Jordan and I have had Jordan is my 17 year old son. For those of you who don't know, he's starting his senior year of high school in these unconventional times. And this is not about politics, but it just I think I have been seeing everyone is seeing if you're on social media, if you're watching any media outlets, the back and forth, the hate speech that is out there on both sides, going back and forth. I mean, it's just like the civility seems like it's lost these days. And for our personal story last Friday, we had our first football scrimmage and Jordan is a visibly black child, Sharon and I share that we are you know, we are of African-American descent, but we are also mixed race. So when you look at us, you wouldn't say, Oh, those are African-American women. So we were at our scrimmage and Jordan made his first tackle of the game. And the kid that he tackled, proceeded to kick him in the chest, which is football. That's a football culture. I wasn't upset about that. What he said to him are over, over, get some, N-word get some n-word. And when he came home and told me what happened, my heart just broke. It broke for him. It broke for society that we are still having to deal with race issues in America right now. And it broke just for, like I said, the lack of civility that we have as Americans. right now.
Sharon (06:29):
And you went deep really fast. Thank you sister, for sharing this story. I can't even imagine what Jordan must've felt like, you know what his heart is, it's it in actuality, it's just a word with the meaning behind it is so deep. So in that instance, when we say words matter that one has so much impact going along with it, you know what I mean?
Erica (06:55):
Yeah. And the, you know and how we're tying this into grief specifically, you know, for me as a mom and he's a 17, soon to be 18 year old young man, I can't protect him from these things anymore. He's out in the world. He's about to be in college. He will soon be in the workforce and I can't heal those hurts for him. He's going to have his own experiences that exists outside of me it saddens me that there's, I'm powerless to protect him from the ugliness that's out there in the big, bad world, right.
Sharon (07:35):
A hundred percent. But there's another thing that goes along with that. And that is that he needs to feel that for himself, you're saying I can't protect him, but you need to guide him while he's feeling the pain. Right. He needs it. He experienced it period. There was nothing you could do. You weren't on the field. You didn't hear it. There was nothing you could do to protect him at that moment. But we talk about feeling our feelings. This is another example of that. So it's two subjects going together is that he had to feel that 100% feeling in his heart and his soul. And you had to guide him through the journey.
Erica (08:14):
Right. And that, that's the thing. I think that you know, cause your initial response is rage. Like I wanted to go back to that football field. I wanted to put one on pads and get down there, you know, cause, and in that kid's face, but of course, you know, unrealistic, but that's your first response is rage. Someone hurt my baby. I wanna, you know, make sure that that doesn't happen again. But once I slept on it had time to gather my thoughts about it and sit down and really talk about it. It's true. That's the kind of the process we went through. This sucks. This really sucks. Yeah. And unfortunately it's not gonna be the last time that this happens. No,
Sharon (08:56):
No.
Erica (08:57):
So what can we do moving forward? And I constantly am preaching to him. You have to educate yourself, stay educated so that you can use your words civily, back to say why it's not. Okay. And then think about how your, what your part is to affect change, to stop this from happening to other young kids coming up behind you, because we all have a responsibility, you know.
Sharon (09:29)
:
You're right. If I say that one more time, I'm going to knock myself out. I say 100% all the time. It's my response. I don't know some words. She, she showed me the other day that I say that Erica we're, it's also matter grief healing. And on the grief journey, I don't want to lessen what, what happened to Jordan. But it also happens when we are helping our children or when we are helping our loved one who is grieving. Right. Words also matter then, and we, as a society have gotten to this part where we just keep saying things that we think it's absolutely okay to say, to agree for someone with a broken heart, how would it have been if you'd have just told Jordan, just give it time. You'll feel better in time. Right. Inappropriate. It doesn't even situation. How would you like it? If I had come up to you and said, Donovan has just died, but sister, you just give it some time and you will feel better.
Erica (10:31):
Yeah. Yeah. Well, in the other, what im, what if I would've just said to him, you just gotta be strong, suck it up, Suck it up. Completely Minimizing his experience not even validating that he has a right to have this anger and hurt, you know, that would have also been terrible for him to process it and to try and find healing in this situation.
Sharon (10:56):
Jordan, you just keep busy. I know that that happened to you. I know you were on the football field. I know the guy called you the N word, but you just keep busy and in two or three days, you won't even remember.
Erica (11:07):
Right, right, right. Yeah.
Sharon (11:12):
Words matter. And none of those make sense. And who would have used those words at that time to help Jordan through what he had just experienced.
Erica (11:21):
Right. Well, and actually, and I think he, the initial response, he said that, you know, he was got from some of his coaches. It was just ignore it all. That's also the kind of, you know, similar, it goes along. It's kind of hard to ignore, especially when, you know, we were being told, I was being told after the fact everybody on the field was hearing it. So you're telling him to ignore it when this kid, you know, his voice is projecting. So many people were hearing it. Another thing that you know, we're, we're saying words matter. I had, we had a client. You remember she shared with us that after finally opening up about her traumatic divorce, she was going through and her girlfriend said, you have two weeks to cry about this and then you got to move on. And, and so now that she's come to find help, she feels weak because she feels like she didn't do what she should've done was put on our big girl panties after two weeks and move on with her life. But that's not how it works, right?
Sharon (12:21):
Well, I think what, what we don't understand is this, that we offer this advice that sometimes is shallow and fall short. And what we need to understand is that our sisters and our friends, they don't need the advice. Jordan did meet the advice to keep busy. What he needed was a listening ear. And he needed someone to say nothing would let him share how he felt he needed to also tap into his emotional feelings of what that was and feel that, and the truth was as hard as it was for you. You had to let him sit in that pain for a second, because that's life reality. That's grief, that's brokenness. We have to sit in it for a minute, a week, a day, a month, or however long it's gonna take.
Erica (13:18):
Absolutely. If we don't allow the feelings in, it's just going to take us longer to get through the process. So you're right. That, that is one of the things that I do try to help him with is allowing him to have that time, to feel the feelings. It is so important to do that.
Sharon (13:35)
:
So I don't know if this is the right time to share this, but I'm here right now. Anyway. So Sheila and I are our cousin, Sheila, we were talking about going and learn how to shoot a gun, something I've wanted to do for years, but here's the deal. I am definitely afraid of guns. I'm definitely afraid of guns. So I always kind of like, think about it. This fear comes up in me because I don't know if in a past life I was shot by a gun or whatever, but anyway, just the thought of a gun, like totally freaks me out last night, Sheila and I were talking about it. There's a Oh, someone's advertising a group for women where they can come and she's like, let's go do this. And the fear came up. And so I, I literally said to myself, sit in the fear, sit in I acknowledge that there was fear in my heart. I couldn't literally feel it. And so I just didn't experience spearmint when myself and I just sat in the fear first for quite a while, actually. And just trying to examine what this, this is fear it's going to be okay. It's okay. Let it be there. And I just let it be there. I kept thinking about the gun and I just let it be there. I did it for myself because what I noticed was every time this gun thing comes up, I would think gun and then fear. And then I would push back. And I would tell you that. But last night I did a, I made a purpose effort to just sit in the fear and that's what we have to do as grievers. And as women with broken hearts, we need to just sit in whatever that feeling is. We needed to sit there.
Erica (15:12):
Right? And that's so true. You have to, you have to sit in your own feelings. You have to learn how to shut down the unsolicited advice from your well-meaning friends and family, and just get in with what's true. What's truly going on in your heart and know that you don't have to listen to the, just give it time or the suck it up, or, you know, put your big girl panties on. You really have to just go through your own process in your own time, in, in your own way.
Sharon (15:46):
Yeah. And that's why I think it's also so important to when you have a guide that helps you go through that and helps you look at all those little idiosyncrasies and the little aspects that you never thought of. You never thought that you knew that when you heard just give it to her and it didn't feel right, but you didn't know why you don't know why this doesn't feel right. And so we're constantly searching for that part to figure it out.
Erica (16:12):
Yeah There's never any answer on how much time it's like, just give it time. It's then you're sitting in, you're waiting and you're waiting. And a month turns into a year and a year turns into two and five years later, you're still waking up on Christmas morning bawling your eyes out wondering if you've given it enough time.
Sharon (16:30)
:
Yeah. Yeah. That definitely that definitely happens. Okay, sisters, here's the takeaway for today: Words matter what you're going to say to your grieving friend and your hurt child are going to make a huge difference and impact them for the rest of their life. Jordan was impacted by what happened to him and thank God he has a mom. That's going to be able to guide him and lead him out of it. But had he not, that would, that would impact him for the rest of his life. Even though it's still will, it'll never go away, but he knows how to process it. Words matter, what we say and what we tell our friends and sisters as they're grieving also what we hear and listen to. It all makes a difference in our lives.
Erica (17:14):
It really does. We learned by trial and error that the information that was out there, the in works and, and on other podcasts and shows weren't necessarily helpful for us because they weren't actually true for the grieving experience. So once we sorted out the misinformation and really said, well, that didn't work. That's not true. This isn't real. And we got down to what's, what's real about grief and put this show together to put it out there. I think that that is one of the most helpful things that we do. And like you said, we've become the guides. We were the blind leading the blind and now we're trained professionals.
Sharon (17:58):
How amazing is that sisters? We want to thank you so much for joining our show today. We hope that this gives you a tidbit to understand what powerful and what not, how powerful your words are.
Erica (18:11):
Thank you so much for letting us in for this brief moment. And we hope you enjoyed our show today.
Speaker 2 (18:18):
Hi friends, Erica Honore here with healing starts with the heart. Sharon and I are so glad you joined us for another great episode of our podcasts. We hope you enjoyed this episode. We want to let you know for more information, you can go to our website at www.healingstartswiththeheart.com. There you will find not only today's podcasts, but all of our podcasts, along with our blogs, the information on the programs that we offer and the griever's guide, which is something Sharon and I put together to document how we came to be your grief specialists. We also have a quiz to take, to identify if you are truly grieving. And if you want to talk specifically with either Sharon or myself, you can schedule an appointment there. You will also find a place to join our private facebook group at hope, heal and recover. Thank you so much for being with us. Have a great day friends.
|
State Bar Section Report
School Law
Newsletter Coeditors Dorcas Green Jon McCormick
Fall 2002 Vol. 5, No. 3
Carolyn Hanahan Christopher Gilbert Robert J. Young
S. Anthony Safi
Michael Shirk
Jay Brim
Editorial Review Board
Dear School Law Section Members:
I am pleased to report that the Executive Committee has finalized plans for the 2003 summer retreat and continuing education seminar. The retreat will be held July 18-19, 2003, in Galveston. The retreat activities will be held at the San Luis Resort near the beach. We have reserved a block of rooms at the San Luis and at the Hilton, which is within walking distance of the San Luis. A brochure with complete details will be mailed to all members in the spring of 2003. If you have suggestions for program topics, please let me know, and I will forward your ideas to the planning committee. We would also like your feedback regarding the retreat in general. Do you participate in the family dinner on Friday night of the retreat, or would you prefer a Saturday lunch? Is the length of the CLE program too long, too short, or just right?
We also would like to hear your general suggestions regarding the operation of the School Law Section. Feel free to e-mail any of the officers or council members with your suggestions. Our e-mail addresses are listed in this newsletter and on our section's web page.
Finally, I want to close by thanking Debbie Esterek and Dorcas Green for yet another outstanding issue of our newsletter. Jon McCormick will be taking Debbie's place as a coeditor and the Section thanks Debbie for her hard work as coeditor. The newsletter continues to be informative and interesting to our members. If you would like write an article for an upcoming issue, please contact Dorcas Green or Jon McCormick.
Lisa A. Brown Chair School Law Section Bracewell & Patterson, L.L.P. 711 Louisiana, Suite 2900 Houston, Texas 77002-2781 (713) 221-1256 firstname.lastname@example.org
REMINDER
➡
With the exception of one edition each year, future editions of the School Law Newsletter will be sent electronically. Be sure the School Law Section has your current e-mail address.
2
SCHOOL LAW SECTION 2001-2002 OFFICERS AND COUNCIL MEMBERS
OFFICERS
Lisa A. Brown, Chair Bracewell & Patterson, L.L.P. 711 Louisiana, Suite 2900 Houston, Texas 77002-2781 (713) 221-1256 email@example.com
Lynn Rossi Scott, Chair Elect Bracewell & Patterson, L.L.P. Lincoln Plaza, Suite 4000 500 N. Akard Street Dallas, Texas 75201-3387 (214) 758-1091 firstname.lastname@example.org
Sandra Carpenter Houston 1203 W. Pioneer Pkwy Arlington, Texas 76103 (817) 459-7398 email@example.com
Miles Bradshaw Feldman & Rogers, L.L.P. 5718 Weistheimer Road, Suite 1200 Houston, Texas 77057 (713) 960-6029 firstname.lastname@example.org
Greg Ellis Texas Assn of School Boards P. O. Box 2947 Austin, Texas 78768-2947 (512) 467-0222 email@example.com
Denise Hays, Immediate Past Chair Walsh, Anderson, Brown, Schulze & Aldridge P.C. P. O. Box 2156 Austin, Texas 78768-2156 (512) 454-6864 firstname.lastname@example.org
Lonnie Hollingsworth, Vice Chair Texas Classroom Teachers Assn P. O. Box 1489 Austin, Texas 78767 (800) 252-9648 email@example.com
COUNCIL MEMBERS
Dohn Larson Texas Classroom Teachers Assn P. O. Box 1489 Austin, Texas 78767 (512) 477-9415 firstname.lastname@example.org
Erik Nichols Henslee, Fowler & Hepworth 3200 SW Freeway Houston, Texas 77027 (713) 552-1653 email@example.com
Blake Hansen Rush, Kelly, Mogan, Dennis, Corzine & Hansen, P.C. P. O. Box 311 Odessa, Texas 79760 (915) 367-7271 firstname.lastname@example.org
Wayne Haglund, Treasury/Secretary Law Office of Wayne Haglund P. O. Box 713 Lufkin, Texas 75902-0713 (936) 639-0007 email@example.com
Kevin Lungwitz Texas State Teachers Association 316 West 12th Street Austin, Texas 78701 (512) 476-5355 ext 1145 firstname.lastname@example.org
Shellie Hoffman Crow Walsh, Anderson, Brown, Schulze & Aldridge P.C. P. O. Box 2156 Austin, Texas 78768-2156 (512) 454-6864 email@example.com
Calendar of Events
Jan 27-29, 2003
TEA Midwinter Conference - Austin UT School Law Seminar - Austin School Law Retreat - Galveston
Feb 27-28, 2003
July 18-19, 2003
LIABILITY OF PUBLIC EMPLOYEES UNDER THE STATE CREATED DANGER DOCTRINE
by Michael Shirk Texas State Teachers Association Office of the General Counsel
In July, 2001 a three judge panel of the Fifth Circuit held for the first time that damages may lie against a state actor because of the criminal conduct of a private third party. When the Court rendered its decision in McClendon v. City of Columbia 1 , it joined the other federal courts of appeal in formally recognizing a constitutional right of recovery referred to as the "state created danger theory."
As any experienced lawyer will tell you, the 'perfect' client is about as difficult to find as is the mythical 'reasonable person' of tort law. After reading the summary judgment evidence set out in the two decisions it is safe to assume that neither Mr. McClendon, the Plaintiff, nor Mr. Loftin, the shooter, were especially outstanding citizens.
In response to the panel decision, the Fifth Circuit granted an en banc hearing to review the viability of state created danger doctrine in this circuit, and resolve a conflict within the circuit regarding when a rule of law is 'clearly established' in order to defeat qualified immunity. Unfortunately, the Court's recent ruling on state created danger is anything but definitive; in a per curiam ruling the Court affirmed the district court's dismissal of the case based upon the factual record, but provided practitioners and public employers with little new guidance to shape and inform an understanding of potential liability. 2
Efforts to recover against the government for physical injury caused by a private wrongdoer under the state created danger doctrine are not novel; by the time the panel issued its ruling in McClendon the elements for recovery had been firmly articulated by the Fifth Circuit in a half dozen decisions over the past decade. 3 School districts appear to be the most favored defendants as parents respond to the vicious injuries inflicted upon their children by other youth. 4
The epidemic of violence in American public schools is a relatively new phenomenon, but one which has already generated considerable caselaw. Whether that epidemic invokes constitutional consequences for the innocent, law-abiding students forced to attend those schools raises questions that must be carefully analyzed. 5
It is essential to note that the en banc decision in McClendon ("McClendon II") declined to impose liability because "under the facts established by the summary judgment record . . . there is no constitutional violation" and because the doctrine was not clearly established with sufficient particularity in 1993 to defeat the individual defendant's qualified immunity. 6
McClendon II indicates that while there is an obvious reluctance by the Fifth Circuit to impose "constitutional consequences" under the state created danger doctrine the en banc court has definitively not foreclosed recovery liability under the right facts. 7
The Players
The Plaintiff, Peter McClendon, was shot in the face by Kevin Loftin. The pistol that was used for the shooting had been loaned to Loftin by Detective Carney of the City of Columbus Police Department.
The evidence established that in early July, 1993, Loftin approached Detective Carney and asked to borrow a pistol. The two knew each other well; Loftin was a paid informant and is described in Judge Parker's dissent as "a gang member with a history of drug involvement" and by Judge Wiener's concurring dissent as "an intimate member of the illicit drug culture."
Loftin had two very profound reasons to need a deadly weapon; most immediately he "feared that McClendon might retaliate against [him] for supplying a gun to an individual who subsequently shot McClendon's friend." 8 However, and as if this wasn't trouble enough, Loftin was sans armes; his own gun, having been used in the murder of McClendon's friend, had been confiscated for evidence by the Columbus Police.
Loftin advised Detective Carney that "McClendon was 'fixing to try [him]' and that the situation between the two of them was at a 'boiling point.'" Detective Carney knew that Mr. Loftin was in trouble – he had personally heard McClendon make "threats" against Loftin. 9
Officer Carney, wishing to diffuse the tensions and prevent violence from erupting, outfitted Loftin with a pistol which had been seized by the Columbus police in yet another, unrelated, investigation, and which was also being held as evidence. 10
A week later, on July 12, 1993, Mr. Loftin shot McClendon in the face and permanently blinded him with the gun provided to him by Officer Carney.
The Constitutional Issue – Substantive Due Process
School law practitioners are as knowledgeable about the substantive due process rights secured to citizens by virtue of the Fourteenth Amendment to the United States constitution as any group of lawyers in Texas. 11 It was, after all, the historic decision in Doe v. Taylor Independent School District which firmly established a student's substantive due process right to be free from government-occasioned infringement to bodily integrity. 12
Substantive due process restrains the government, at all levels, from arbitrarily interfering with the personal freedoms encompassed within citizens' liberty interests. As established in Doe, freedom from physical harm at the hands of state actors is a protected liberty interest.
3
Substantive due process "confers protection to the general public against unwarranted governmental interference, but it does not confer an entitlement to governmental aid as may be necessary to realize the advantages of liberty guaranteed by the [due process] clause. 13 Because it is a judicially crafted doctrine with few "guideposts for reasonable decision making" it is juridically disfavored. 14 Recovery for its breech requires proof of "deliberate indifference toward the constitutional rights" of a Plaintiff. 15
The state created danger doctrine, which has now been adopted by every federal circuit in the nation except the Fifth, is a species of personal rights emanating from the substantive due process right to be free from government-occasioned harm to one's bodily integrity. However, unlike Doe v. Taylor Independent School District and other cases which permit recovery for injury attributable to state action, the state created danger doctrine imposes liability upon public actors for injury caused by private third parties; it recognizes "an affirmative constitutional duty to protect" an individual from harm resulting from the acts of a private individual. 16 "When state actors knowingly place a person in danger, the due process clause of the constitution has been held to render them accountable for the foreseeable injuries that result from their conduct * * * * The key to the state-created danger cases …lies in the state actors' culpable knowledge and conduct in affirmatively placing a person in a position of danger… Actual knowledge of a serious risk of physical danger to the plaintiff has been a common feature of the state-created danger cases". 17
Different Courts
McClendon's case was initially dismissed by the district court on summary judgment for failure to articulate a cognizable constitutional claim. 18 The district court also determined that even if the state created danger doctrine could form the basis of recovery, only one Fifth Circuit decision had analyzed it and this involved differing facts. Officer Carney was, therefore, entitled to qualified immunity since the one decision, Salas v. Carpenter, did not constitute clearly established law in 1993. 19 The court also dismissed the claim against the city for lack of a policy or custom as required under 42 U.S.C. § 1983.
A panel of the Fifth Circuit consisting of Judges Politz, DeMoss and Stewart reinstated McClendon's claim against Detective Carney. The Court held that Officer Carney's conduct in arming Loftin in response to McClendon's threats reflected deliberate indifference by Carney to the rights of McClendon sufficient to give rise to a substantive due process violation. The panel also held that Officer Carney was not entitled to qualified immunity because the law – as set forth not just in Salas but in other circuits' decisions involving the state created danger doctrine - was sufficiently well established in 1993 to have placed Officer Carney on notice regarding the objective unreasonableness of his conduct.
We find it beyond peradventure that a police officer's actions of giving a person a weapon in a situation the officer knows or should know has a strong potential for violence constitutes deliberate indifference on the part of the officer . . . We conclude that, at the time of the shooting it was clearly established that a state actor cre-
4
ating a danger, knowing of that danger, and using his authority to create an opportunity for a third person to commit a crime that otherwise might not have existed was subject to liability for a violation of the victim's rights.
258 F.3d 441.
The Court frankly acknowledges "we have not yet determined whether a state official has a duty to protect individuals from state-created dangers." 20 This is the approach the Fifth Circuit has taken in virtually all state created danger cases which have come before it. The Court will assume without deciding that the theory is viable, set forth very detailed rules of causation and culpability, but inevitably deny recovery due to an inadequate showing of deliberate indifference to support a substantive due process violation claim.
The Court concluded that Officer Carney was merely negligent in providing Loftin with a pistol in response to McClendon's anger and Loftin's (very accurate) prediction that McClendon was "fixing to try [him]."
Judge Parker's dissent takes issue with that conclusion, "What would a reasonable person think would happen if a police officer in the course of his employment takes a pistol from the evidence locker or from his desk and gives it to a gang member with a history of drug involvement who needs it for a confrontation with a drug dealer." 21
The McClendon I panel was cognizant of the lack of Fifth circuit precedent on the state created danger theory in 1993 (the date of the shooting) as it approached the qualified immunity questions. As with any constitutional cause of action brought under 42 U.S.C §1983, McClendon had to overcome the qualified immunity of the state actor by proving, inter alia, that Officer Carney's conduct was objectively unreasonable and violated "clearly established statutory or constitutional rights of which a reasonable person would have known." 22
After reviewing the extensive treatment afforded the state created danger doctrine by other federal courts the panel found that "[t]he overwhelming authority in the United States was that this was a viable theory of law." 23 This, in the panel's opinion, was sufficient to allow the doctrine to be 'clearly established' within the Fifth Circuit even though only one state created danger case had been reviewed by the Fifth Circuit at the time Carney loaned a gun to Loftin.
Although generally in cases of qualified immunity we look to the law of this circuit and the Supreme Court to determine whether the applicable law was clearly established at the time of the constitutional violation, we are not limited to looking only at those decisions to make this determination. 24
The panel found support for its position in Melear v. Spears, 862 F.2d 1177 (5th Cir.1989), which permitted a review of decisions outside of, and beyond, simply those decided by the Fifth Circuit and the Supreme Court in ascertaining whether a rule of law was clearly established or not.
In McClendon II the en banc court was called upon to resolve a conflict within the circuit, inasmuch as a panel sub- sequent to Melear had held that "in determining whether a right is clearly established, we are confined to precedent for our circuit or the Supreme Court".2 5
The Court resolved this conflict in favor of the rule articulated in Melear as more consistent with the Supreme Court's decision Wilson v. Layne. 26 In ascertaining whether a rule is well established, and "in the absence of controlling authority, a 'consensus of cases of persuasive authority' might, under some circumstances, be sufficient to compel the conclusion that no reasonable officer could have believed that his or her actions were lawful." 27 The language in Shipp, which strictly limits courts to precedent from the Fifth Circuit or the Supreme Court in ascertaining the objective reasonableness of government action, was overruled in McClendon II. 28
This, however, was not sufficient to deprive Officer Carey of his qualified immunity. The other circuits' decisions, while reflecting a generalized consensus about the constitutional principles making up the state created danger theory, lacked sufficient specificity to place Detective Carney specifically, and public officials generally, on notice regarding the precise conduct which would result in constitutional violation.
In finding that Detective Carney's conduct was not, as a matter of well-established law, objectively unreasonable, the Court looked at decisions which predated his arming of Loftin. In light of the almost ten years which have passed, and the greater number of fact patterns which have been brought to courts under the State created danger doctrine in this and the other federal circuits, an officer today might be held to a different standard.
Conclusion
The holding of McClendon II provides limited guidance. 29 The specter of the state created danger doctrine haunts this circuit and is poised to resurrect itself. The basis of the decision that the behavior of detective Carney was not sufficiently culpable to reflect deliberate indifference, and that the law was insufficiently developed to warrant a finding of objective unreasonableness, do not restrict the Court's later decisions.
The en banc Court has not foreclosed recovery under the state created danger doctrine; rather, it has delayed the day when citizens of this circuit will have the same legal protections as are secured to the citizens of every other circuit in the nation under the substantive due process clause of the Fourteenth Amendment.
ENDNOTES
1 258 F.3d 432 (5th Cir. 2002); vacated and reh'g en banc granted, 285 F.3d 1078 (5th Cir. 2002), rev'd in part, 2002 WL 2027329 (5th Cir. 2002).
2 Judge Parker's dissent, joined by Judges Wiener and DeMoss notes that "the majority's Achilles' heel is its unwillingness to either adopt or reject the state-created danger theory as the law of the Circuit. Id. at *16.
3 See, e.g., Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995)(Plaintiff must prove that state actors, acting with deliberate indifference, increased Plaintiff's expose to harm. Deliberate indifference, for purposes of state created danger theory requires proofs that "the environment created by the state actors must be dangerous; [state actors] must know it is dangerous; and . . . they must have used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur." Id. at 516, fn. 9 ( citations omitted).
4 Leffall v. Dallas Independent School District, 28 F.3d 521 (5th Cir. 1994), Johnson v. Dallas Independent School District, 38 F.3d 198 (5th Cir. 1994); see also, Doe v. Hillsboro Independent School District, 113 F.3d 1412 (5th Cir. 1997), Young v. Austin Independent School District, 885 F.Supp. 972 (W.D. Tex.- 1995).
5 Johnson, 38 F. 3d at 199-200.
6 2002 WL 2027329 *1. The city was dismissed by the panel ("McClendon I") for lack a policy or practice to support municipal liability under 42 U.S.C. §1983. This was affirmed by the en banc Court ("McClendon II").
7 Judge Emilo M. Garza concurred in the judgment only. Id. at 15. His dissent would have foreclosed all future efforts to impose liability under the state created danger doctrine. He quoted from a previous decision which stated, in part, "the state has no duty to protect nor liability from failing to protect a person under the due process clause of the Fourteenth Amendment from violence at the hands of a private actor." Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995)(en banc) It is, therefore, not fanciful to assume that such a repudiation of constitutional duty in response to the state created danger doctrine was proposed to, but rejected by, by the en banc Court in McClendon.
8 According to the panel decision ("McClendon I") McClendon's gun had been used to murder Loftin's cousin. Whether McClendon's weapon killed Loftin's cousin or friend did not distract from Loftin's obvious fear of McClendon.
9 McClendon II at *1.
10 Judges Parker, Wiener and DeMoss point out that "Detective Carney's action in taking the gun from the evidence drawer/locker and giving it to Loftin constituted embezzlement by a public official" under Mississippi law.
11 The Texas Constitution, Article I §19 also contains a substantive due process protection. There are cases which stand for the proposition that Texans' have greater substantive due process protections under Article I than under the Fourteenth Amendment; Texas Workers Compensation Commission v. Garcia, 893 S.W. 2d 504, 505 (Tex. 1995). However, this author believes that the 'new federalism' movement of years past is moribund.
12 Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994)(en banc.) This familiarity with the doctrine is not without confusion; Compare, Moore v. Willis Independent School District, 233 F.3d 871 (5th Cir. 2000)(injury to student resulting from corporal punishment not a substantive due process violation because disciplinary purpose being served) with Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th Cir. 1987)(tying student to chair for instructional purposes rather than disciplinary purposes constitutes violation of substantive due process rights).
13 Walton v. Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995)(en banc); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195 (1989)(holding that substantive due process guarantee "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security.").
14 Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125 (1992).
15 Doe, supra., 15 F.3d at 454, Johnson, at, 201.
16 Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994).
17 Johnson v. Dallas Independent School District, 38 F.3d 198, 200-201 (5th Cir. 1994)("The key to the state-created danger cases . . . lies in the state actors' culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off sources of private aid.")
18 The complaint alleged that "the Defendants violated McClendon's due process rights under the Fourteenth Amendment by knowingly and affirmatively creating a dangerous situation that resulted in injury to McClendon." The complaint further asserted that "in providing Loftin with a handgun, Detective Carney 'created a serious danger'that 'caused Peter McClendon harm and violated McClendon's due process rights.'"
5
19 The Fifth Circuit's decision in Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992).
20 McClendon II at *6.
21 Id. at * 15. Judge Parker's dissent asks the further rhetorical question, "[w]hat does the majority think Loftin intended to do with the gun provided to him by Detective Carney - - place it on his wall as a souvenir? Of course not, gang members who ask for guns typically have violent intentions as any competent police officer knows. Id. at *19.
22 McClendon II at *8, citations omitted.
23 McClendon I, 258 F.3d at 440.
24 Id. at 339-440.
25 McClendon II at *9; quoting, Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000).
26 526 U.S. 603, 119 S.Ct. 1692 (1999).
27 McClendon II at *10, quoting 526 U.S. at 617, S.Ct. at 1692).
28 Id.
29 Judge Jolly's concurring dissent points this out, noting that the decision has left "the bench and bar in doubt as to whether and to what extent such a cause of action exists in this circuit." McClendon II at *15.
ADMINISTRATOR CONTRACT PROTECTS MORE THAN A JOB
Walsh, Anderson, Brown, Schulze, & Aldridge, P.C. Austin, Texas firstname.lastname@example.org
Chris G. Elizalde
When the Round Rock Independent School District reassigned a principal to another administrative position that did not require certification, without changing his term contract, salary, or benefits, one more thing was left unchanged–the employee's right to all the nonrenewal procedures under Texas Education Code Chapter 21 1 and local policy, according to a Commissioner of Education decision issued in March. Landers v. Round Rock ISD 2 was originally issued January 9, 2002, by the Commissioner of Education's designee. On motion for rehearing, that decision was withdrawn and replaced by one issued March 26, 2002.
fected by a subsequent reassignment to a position not requiring certification.
The decision concludes that the term contract signed by the administrator was unaffected by a subsequent reassignment during the term. The decision involved a principal on a two year term "Administrator" contract reassigned after the first year to a central office administrative position, "Administrator on Temporary Assignment for Elementary Fine Arts." The new position did not require certification by law or local policy. No new contract was executed. Near the end of the contract, the district notified the administrator that his term contract would not be renewed, but he was offered the opportunity to continue to work on an at will basis. The administrator declined, claiming the right to the nonrenewal process applicable to term contracts under Texas Education Code Chapter 21, Subchapter E. 3
Although a reassignment clause in the contract authorized the district to assign the principal to another administrative position during the two-year term, the main issue was whether the administrator's term contract status could be changed to an at will status. If so, the term contract would be allowed to expire without the use of the term contract nonrenewal process set out in Education Code Chapter 21, since he was now in a position not requiring certification. Were it not for the term contract originally executed, the position could have been an "at will" position. The decision states that when the administrator term contract was executed, the contract was for a certified administrator meeting the definition of "teacher," under Texas Education Code Section 21.201, i.e., "a superintendent, principal, supervisor, classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B or a nurse." 4 As such, he was entitled to the nonrenewal process set out in the Education Code, Chapter 21, Subchapter E, and those rights were unaf-
6
Additionally, although not required, the district had adopted the certified hearing examiner process applicable to midcontract terminations for use with its nonrenewals. The process, set out in Education Code Chapter 21, Subchapter F, includes stringent criteria for changing the hearing examiner's Findings of Fact and Conclusions of Law, both of which the board of trustees changed in part when the hearing examiner's recommendation came before them for consideration. 5 The district was unsuccessful in its argument that the hearing examiner lacked jurisdiction over the matter based on the fact that the employee was not being proposed for termination during the contract. It was also unsuccessful in its attempt to change some of the Findings of Fact and Conclusions of Law.
Some interesting lessons can be gleaned from this decision. Presumably, had the district not adopted the certified hearing examiner process for its nonrenewals, the hearing examiner would not have had jurisdiction over the matter. If so, it appears the administrator could have proceeded with an appeal to the Commissioner once he received notice that his contract had not been renewed (as opposed to being proposed for nonrenewal under the Education Code. 6 ) Also, presumably the outcome would have differed if at the time of reassignment the district and administrator had executed a new contract or other employment agreement that did not include statutory term contract protections, such as a contract for non-certified administrators.
ENDNOTES:
1 TEX.EDUC.CODE, Chapter 21
2 Landers v. Round Rock ISD, Docket No. 032-R1-1101 (Comm'r Educ. March 2002)
3 TEX.EDUC.CODE, Chapter 21, Subchapter E
4 TEX.EDUC.CODE § 21.201(1)
5 See, TEX.EDUC.CODE § 21.259
6 TEX.EDUC.CODE § 21.206
STUDENT DRUG TESTING: WHERE ARE WE NOW? 1
Richard A. Morris Feldman & Rogers, L.L.P.
In 2002, the United States Supreme Court considered whether a drug testing policy that provides for random, suspicionless urinalysis testing of public secondary students who participate in extracurricular activities violates the Fourth Amendment to the United States Constitution. See Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatamie County v. Earls, 122 S. Ct. 2559 (2002). In a 5-4 decision, the Court held that the school district's policy was a reasonable means of furthering its important interest in protecting the safety and health of its students. School officials are now asking whether the Court's decision would permit drug testing of all secondary school students. While further litigation related to this issue is inevitable, it is this author's opinion that the Supreme Court would not uphold such an expansive testing regime unless a school district was confronted with an overwhelming drug problem. This article seeks to analyze the Supreme Court's decision in Earls and conflicting case law predating that decision, as well as to answer questions relating to the constitutional parameters for testing as they currently exist.
The Fourth Amendment
The Fourth Amendment to the United States Constitution – often the basis of challenges to student drug testing programs – was the basis for the challenge in Earls. Accordingly, this article's primary focus relates to an analysis of Fourth Amendment precedent.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It is well settled that the collection and testing of urine by state actors constitutes a search under the Fourth Amendment. As a general rule, the Fourth Amendment requires that a search be undertaken pursuant to a warrant issued upon a showing of probable cause. However, the Supreme Court has recognized exceptions to this general rule "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). When considering the school context, the Court has held that these requirements are unnecessary because they would "unduly interfere" with a school district's need for "swift and informal disciplinary procedures." Id.
Even where "special needs" make meeting the warrant and probable cause requirements unnecessary, a search must still be "reasonable." Earls, 122 S. Ct. at 2564 (citations omitted); see also Vernonia, 515 U.S. at 653. Whether random, suspicionless urinalysis testing of public school students is "reasonable" has led to considerable debate, some of which has recently been resolved by the Supreme Court's decision in Earls.
One settled principle serves as an appropriate launching pad for exploration of the more difficult issue of reasonableness. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Supreme Court recognized that public school children do not have Fourth Amendment rights that are co-extensive with those of free adults. T.L.O. teaches that any determination as to reasonableness requires consideration of a school district's responsibilities as custodian and tutor to the students entrusted to its care.
Recognizing that school districts have custodial and tutelary responsibilities, however, does not end the inquiry as to reasonableness. As discussed below, the Supreme Court upheld drug testing of student athletes in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). The Court fashioned the four-factor balancing test for assessing whether a drug testing program is reasonable. Given that the Supreme Court's decision in Earls was based on the balancing test first articulated in Vernonia, it is appropriate to revisit that case before considering the decision in Earls.
Vernonia School District 47J v. Acton
In 1995, the Supreme Court considered the first constitutional challenge to student drug testing. The school district in Vernonia initiated its drug testing policy in response to a sharp increase in drug use. The policy required that all parents of students and the students who participated in interscholastic athletics consent to drug testing at the beginning of the athletic season and random testing throughout the remainder of the season. The student being tested was also required to produce a urine sample in the presence of an adult monitor. The samples were then sent to a testing laboratory, marked in a manner that ensured the anonymity of the individual who produced the sample. The district exercised extreme care to ensure that the results of the tests remained confidential and implemented chain of custody procedures to ensure the integrity of the sample results. If a sample returned a positive result, the student was required to submit to testing as quickly as possible. If the second sample returned a negative result, no further action was taken. If, however, the second sample also returned a positive result, the parents of the student were informed, and a conference was held among the principal, the student, and the student's parents. During the conference, the student was required to decide whether to enroll in a drug assistance program, which included weekly urinalysis testing, or to be suspended from athletic competition for the remainder of the current athletic season and the following athletic season. After completion of any suspension, the student was required to undergo testing with the other students in order to be eligible to participate in the next athletic season. If, after a confirmed positive test and completion of either a suspension or assistance program, a second confirmed violation occurred, the student was automatically suspended from participation in athletics for the remainder of the current season and the following academic year. A third confirmed violation resulted in suspension for the remainder of the current and following two athletic seasons.
Jason Acton, a seventh grader enrolled in a grade school in Vernonia, Oregon, wanted to play football. Acton was not allowed to participate, however, because he and his parents refused to sign consent forms that would require him to submit to random drug tests pursuant to the school district's drug testing policy. The Acton family sued the district, alleging the policy violated the Fourth and Fourteenth Amendments of the
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United States Constitution, and Article I, § 9 of the Oregon Constitution.
The district court found no constitutional violation and upheld the policy. Acton v. Vernonia Sch. Dist.47J, 796 F. Supp. 1354 (D. Or. 1992). The Ninth Circuit Court of Appeals reversed the district court, finding violations of the Fourth Amendment of the United States Constitution and Article I, § 9 of the Oregon Constitution. Vernonia Sch. Dist. 47J v. Acton, 23 F.3d 1514 (9th Cir. 1994). In reversing the Ninth Circuit, the Supreme Court articulated a four-factor balancing test that considers: (1) the nature of the privacy interest intruded upon by the search; (2) the character of the intrusion caused by the complained upon search; (3) the nature and immediacy of the governmental concern; and, (4) the efficacy of the means employed by the government for meeting its concern.
The first factor articulated by the court focuses upon the nature of the privacy interest intruded upon by the search. If an individual does not have a legitimate subjective expectation of privacy that society is prepared to accept as legitimate, that individual is not protected by the Fourth Amendment. Pivotal to the Vernonia decision was the fact that the individuals being searched were children under the care and custody of the public schools. The court noted that while children do not "shed their constitutional rights at the schoolhouse gate, the nature of those rights [retained by children] is what is appropriate for children in school." Vernonia, 515 U.S. at 655-66 (internal citations omitted). The court further recognized that school officials act "in loco parentis," and have "custodial and tutelary" power and responsibilities over the children entrusted to their care. Id. at 655 (citing New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
In addressing whether school children participating in athletics have a legitimate subjective expectation of privacy, the court observed that children participating in athletics engage in "communal undress," and "voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally." Id. at 657. The court observed that children participating in athletics undergo a pre-season physical examination, sign waivers, adhere to special dress codes, and attend after-hours practice and training. In concluding schoolchildren enrolled in athletics have a reduced expectation of privacy, the court analogized them to adults who choose to participate in a highly regulated industry and concluded that these students should expect some degree of intrusion upon their privacy.
The second factor focused on the character of the intrusions posed by sample collection and accessing the information revealed by the analysis performed on the sample. The district's sample collection methods required male students to produce samples with their back to a male monitor while standing, fully clothed, at a urinal. The monitor was not required to watch male students produce samples, but only remain in students' presence to guard against tampering. Female students were allowed to produce samples in a closed bathroom stall while a female monitor waited outside of the closed door. Regarding the intrusion relating to sample collection, the court, while noting that the act of collecting the samples involved an "excretory function traditionally shielded by great privacy," found the district employed adequate
8
safeguards to ensure minimal intrusion upon the privacy interests of the students. Id. at 658. In light of the fact that school children use public restrooms on a regular basis and that the samples were produced in conditions mirroring that environment, the court determined that the degree of intrusion created by the manner in which samples were taken was "negligible."
The court then focused upon what was done with the information revealed by the search. The district's policy had four safeguards to protect the privacy interests of students. The laboratory analysis of the samples looked only for drugs; it did not probe into the student's physical condition. All students tested were screened for the same drugs, and the test results were disclosed to only a small number of school officials. Finally, the results of the tests were not disclosed to law enforcement officials. In light of these safeguards, the court concluded that the invasion of the students' privacy interests was not significant.
The third factor addressed the "nature and immediacy of the governmental concern." Id. at 660. Classifying the nature of the governmental concern is not, according to Fourth Amendment jurisprudence, a simple litmus test, but involves a balancing of factors. A court must consider whether the government's interest is "important enough to justify the particular search at hand," balanced against factors supporting the proposition the search intrudes upon a person's legitimate expectation of privacy. Id. at 661 (emphasis in original). The court felt that the government's interest in this particular instance was important and "perhaps compelling." Id. The court observed that the crisis plaguing the district was greater than situations in which the court previously upheld suspicionless searches. For example, the crisis plaguing the district was deemed more severe than the drug use by railroad employees in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), and substantially greater than that of Treasury Employees v. Von Raab, 489 U.S. 656 (1989), which upheld suspicionless searches of customs agents to combat importation of drugs into the country.
The court also noted drug use by children has a more profound effect upon them than does drug use by adults and results in lifelong learning losses that disrupt the educational process. Considering the fact that the children subject to the challenged policy were entrusted to the care of the government for education, the court noted the district's interest was "magnified by the fact that this evil is being visited not just upon individuals at large, but upon the children for whom it has undertaken a special responsibility of care and direction." Id. at 662.
By narrowly tailoring the policy to test only students participating in athletics, (a characteristic not shared by the policy in Earls, to be discussed below), the government was able to bolster its argument that its interest was great compared to the burden placed upon the privacy interests of students required to submit to testing. The drugs the policy tested for presented substantial risks to individuals when their use was combined with physical exertion. To illustrate this point, the court noted amphetamines increase an individual's heart rate and suppress an individual's awareness of fatigue. Marijuana results in fluctuations in blood pressure and bonds with hemoglobin, thereby reducing the blood's ability to supply the body with oxygen. It also interferes with the body's ability to regulate temperature by suppressing the body's ability to sweat. Cocaine use can increase blood pressure and result in possible coronary spasms. In light of these risks, the court determined the balance of factors fell in favor of the school district's interest.
The court was reluctant to question the trial court's determination that the immediacy of the district's concerns was sufficient to justify its action. It was satisfied with the lower court's finding that the district was plagued by a drug problem among its students, "particularly those involved in interscholastic athletics," and that an increase in disciplinary actions that attained "epidemic proportions" was directly attributable to that problem.
The fourth and final factor articulated by the court focused upon the "efficacy of the means" employed for attaining the government's interest. Vernonia, 515 U.S. at 660. The court found the efficacy of the district's policy to be "self evident," considering that the drug problem was "largely fueled by the 'role model effect of athletes' drug use, and of particular danger to athletes.'" Id. at 663. By ensuring the athletes do not use drugs, the district, in essence, removed the fuel from the fire, and effectively addressed the problem.
In finding no violation of the Fourth Amendment, the court dismissed the Actons' argument that a drug testing policy calling for testing only after a student was suspected of using drugs would be a "less intrusive means to the same end" and concluded the district's suspicionless policy was superior to one based upon suspicion. The court reasoned that parents willing to submit their children to suspicionless drug testing may be unwilling to submit their children to drug testing resulting from an allegation of drug use. Additionally, the court seemed troubled by the possibility that a teacher could retaliate against a child by referring him or her for testing due to behavior problems and by the additional expenses of providing suspected children with sufficient procedural safeguards and defending lawsuits created by a suspicion-based program. Finally, the court noted that most teachers are not qualified to accurately identify students who exhibit characteristics of drug use.
The Earls Case
The Earls case arose in the small rural community of Tecumseh, Oklahoma. In 1998, the school district adopted a student drug testing policy requiring all secondary students who participate in extracurricular activities to consent to urinalysis testing. Despite the stated breadth of the policy, in practice it was applied only to competitive extracurricular activities sanctioned by the Oklahoma Schools Activities Association. The policy requires that students submit to a urinalysis test before their initial participation in an extracurricular activity, random testing while participating in that activity, and testing at any time upon reasonable suspicion. The tests are designed to detect the use of illegal drugs, including amphetamines, cocaine, marijuana, opiates, and barbiturates.
Lindsey Earls, who at the time she filed suit was a member of the show choir, the marching band, the Academic Team, and the National Honor Society, along with another schoolmate, challenged the policy as written and as applied, alleging that it violated the Fourth Amendment. The trial court relied on the Supreme Court's decision in Vernonia to reject Earls' challenge, concluding that "special needs" warranting the district's drug testing program exist in the school context. Further, the school district's policy of testing students who participate in competitive extracurricular activities effectively addressed a history of drug abuse that the court determined provided legitimate cause for concern.
The Tenth Circuit Court of Appeals reversed, concluding that the school district could not implement its program without evidence of drug abuse "among a sufficient number of those subject to testing, such that testing that group of students will actually redress its drug problem." Earls v. Bd. Of Educ. of Tecumseh Pub. Sch. Dist., 242 F.3d 1264, 1278 (10th Cir. 2001). Finding that the school district failed to demonstrate a drug problem among competitive, extracurricular participants, the court of appeals held the policy violated the Fourth Amendment.
In reviewing the case, the Supreme Court initially addressed whether special needs exist in the school context such that individualized suspicion is not required. Characterizing its prior holdings in Vernonia and T.L.O. as having held that special needs "inhere in the public school context," the court emphasized that the school district's responsibilities for children may render a finding of individualized suspicion unnecessary. Earls, 122 S. Ct. at 25642565.
Next, the Court applied Vernonia's four-factor balancing test, considering first the nature of the privacy interest at stake. Realizing that the school district is responsible for maintaining discipline, health, and safety, the court concluded that school children's privacy interests are more limited than adults for the simple reason that they attend public schools. The court rejected the argument that Vernonia compels the conclusion that the school district prevails in the balancing test only as to students whose participation requires them to be subject to regular physicals and communal undress. It noted that the presence of such facts in Vernonia was not essential to its decision in that case.
After recognizing that communal undress and regular physicals were not required to tip the scale in the school district's favor, the court acknowledged that participants in competitive extracurricular clubs and activities subject themselves to the same privacy intrusions as do student athletes – each club and activity has its own rules and requirements for participation with some activities requiring off-campus travel and communal undress. The court also noted that the competitive extracurricular activities at issue in Earls were subject to additional regulations of the Oklahoma Secondary Schools Activities Association. Having considered these facts, the court concluded that the students subject to the policy had limited privacy expectations.
The court then considered the character of the intrusion posed by the policy. Similar to Vernonia, the policy requires a faculty monitor to wait outside a closed restroom stall while a student produces a sample, listen for normal sounds of urination, and guard against tampering. The sample collection methods differ from Vernonia in one respect. In Earls, male students produce samples in a stall as opposed to being
9
directly observed by monitors who stood behind them as they used a communal urinal. Given that male students are provided greater privacy under Tecumseh's policy than were male students in Vernonia, the court found the collection methods in the Tecumseh schools to be "even less problematic" than those at issue in the Vernonia case. Id. at 2566.
Still analyzing the character of the intrusion, the court separately considered the use and disclosure of test results. Given that a student who tests positive is denied only the right to participate in extracurricular activities but is not subject to criminal, disciplinary, or academic consequences, and test results are kept in confidential files and disclosed to school personnel on a need to know basis, the court concluded that the invasion of student's privacy interests was not significant.
Finally, the court considered the nature and immediacy of the school district's concerns and the policy's efficacy in meeting them. In considering these factors, the court cited with approval its conclusion in Vernonia that the government's concern in preventing drug use by schoolchildren is important. Referencing statistical findings of the Department of Health and Human Services, the court concluded that there is reason to believe the problem of student drug use has worsened since Vernonia was decided. Pointing to a "nationwide drug epidemic," the court concluded that "the war against drugs" is a "pressing concern in every school." Id. at 2567.
Looking to the specific evidence of drug use within the school district, the court rejected the students' argument that there was not a "real and immediate interest" warranting testing. Resolving a central point of contention, the court concluded that a widespread or pervasive drug problem need not be shown before suspicionless testing can be conducted. Refusing to articulate a "constitutional quantum of evidence of drug use necessary to show a 'drug problem,'" the court specifically rejected the Tenth Circuit's requirement that a school district demonstrate an identifiable drug problem among a sufficient number of students subject to testing, concluding that it would be difficult to administer such a test. Id. at 2568. The court noted that evidence of a drug problem could, however, be offered to "shore up" a district's contention that special needs warrant testing. Id. at 2567-2568 (citing Chandler v. Miller, 520 U.S. 305, 319 (1997)).
Perhaps most significant is the court's conclusion that the need to prevent drug use is a sufficiently immediate concern warranting testing. As the court recognized, it makes little sense to require school districts to wait until a substantial portion of the student population is using drugs before implementing a program designed to deter such drug use. Given this reasoning, it would appear that when a school district's articulated interest is to deter drug use, evidence of an existing drug problem is largely irrelevant.
The court also rejected the student's argument that under Vernonia authority for testing was limited to student athletes because of the additional risk of injury student athletes faced if they competed while under the influence of drugs. Focusing on the safety risk posed by drug use generally, the court concluded that safety interests addressed by drug testing were equally applicable to athletes and nonathletes.
The court again considered an argument previously made in Vernonia that individualized suspicion is required to drug
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test students. Rejecting the idea that school districts employ the least intrusive means available, the court declined to impose an individualized suspicion requirement in schools attempting to prevent and detect drug use. The court was not persuaded that testing based on individualized suspicion would be any less intrusive and raised concerns that it would additionally burden teachers struggling to maintain order and discipline and might lead to members of unpopular groups being targeted for testing.
Finally, the court considered whether the school district's means of addressing its concerns were reasonably effective. The court concluded there was a sufficient fit between the testing of extracurricular participants and the school district's interest in protecting the safety and health of its students and thus upheld the drug testing policy in its entirety.
Writing for the four dissenters, Justice Ginsburg argued that the Tecumseh policy was not reasonable, but was "capricious" and "perverse" because it targeted students that are least likely to be at risk from illegal drugs. The dissenters distinguish Vernonia on several grounds. First, they argue that student athletes have even more reduced privacy expectations than students who participate in non-athletic extracurricular activities that do not involve routine communal undress, such as the activities Lindsey Earls participated in – choir, show choir, marching band and academic team.
Second, with respect to the character of the intrusion, the dissenters would have held that the district court erred in granting summary judgment with respect to the Earls claim that school district personnel did not maintain the confidentiality of information obtained pursuant to the district's policy. The district court assumed that the school district would honor the policies' confidentiality provisions. The dissenters argue that this assumption was unwarranted at the summary judgment as to "doubtful matters" should not have been resolved in favor of the school district. Id. at 2575 (Ginsburg, J., dissenting).
Third, with respect to the "nature and immediacy of the governmental concern," the dissenters argued that the concerns at issue in Vernonia "dwarfed" those confronting Tecumseh administrators. Id. The district court in Vernonia found that a large segment of the student body, particularly including student athletes, "was in a state of rebellion fueled by alcohol and drug abuse as well as the students' misperceptions about the drug culture." Id. (quoting Vernonia, 515 U.S. at 649). In contrast, Tecumseh school officials had routinely reported that its schools were not experiencing a "major" drug problem. Id. The dissenters agreed with the Tenth Circuit's observation that the efficacy of the district's program was "greatly diminished" absent evidence of a "demonstrated drug abuse problem among the group being tested…."
The dissenters also did not find the majority's reliance on Skinner and Van Raab persuasive. While they recognized that the testing programs were upheld without particularized evidence of a drug problem, they argue that the programs were warranted in these two cases because of the enormous risks involved to "the lives and limbs of others." Id. at 2576.
The dissenters also contend that the program was not tailored to meet the risk it believed was most relevant – the risk of immediate physical harm to drug users and others in com- petitive physical activities. Justice Ginsburg makes her point in colorful language:
Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.
In conclusion, the dissenters argue that Tecumseh's purpose in adopting its policy was to "heighten awareness of its abhorrence of, and strong stand against drugs." The dissenters suggest that this interest is more symbolic than real.
Where Are We Now?
While the Earls case did much to clarify the issues involved in student drug testing, future litigation is likely, as some school districts will undoubtedly continue to expand their testing programs. What generally appears to be settled is that school districts can condition participation in all extracurricular activities upon student consent to random drug testing.
It is likely that some school districts will consider random drug testing of all students. In this author's opinion, such programs will not pass constitutional muster absent evidence of a substantial and widespread drug problem. Although not fully analyzed in Vernonia and Earls, it cannot be ignored that the drug testing programs at issue in those cases required students to voluntarily consent to testing in order to participate in extracurricular activities. There was no evidence in those cases that students were coerced into giving consent. When a student chooses not to consent, that student is not permitted to participate in the extracurricular activity, and no testing takes place. Given that students do not have a fundamental or statutory right to participate in extracurricular activities, it was not surprising that the Supreme Court determined that the school district's interests outweighed students' privacy expectations. The same may not be said when a district attempts to condition receipt of an education on student consent to testing given that students generally have a right to education and are compelled by law to attend school.
Plaintiffs may also attempt to limit Earls impact by arguing that its holding is limited to competitive extracurricular activities. However, it would be difficult to maintain that the reasoning applied in Earls is not equally applicable to all extracurricular activities. Whether a student has diminished expectations of privacy does not turn on whether an extracurricular activities is competitive, but whether the student is subject to additional regulation as compared to students generally. Students who participate in extracurricular activities are in fact subject to additional regulation, including coaches' rules and UIL regulations, but that is not to say that non-competitive extracurricular activities do not involve additional rules and regulations as well. And while such additional rules and regulations may be less extensive, in this author's opinion, whether a program passes constitutional muster should not turn on the degree of regulation present in any given extracurricular activity. Requiring school districts to prove some minimum quantum of regulation with respect to noncompetitive extracurricular activities would undoubtedly lead to inconsistent court decisions, as application of such a nebulous test is fraught with uncertainty. This author would argue that a showing that a student agrees to subject himself or herself to any added rules or regulations when seeking to participate in extracurricular activities should be enough to support a drug testing program.
School districts can also expect that plaintiffs will bring state constitutional challenge to student drug testing programs. While an analysis of whether the Texas Constitution affords greater protection against student drug testing than the Fourth Amendment is beyond the scope of this article, this author believes that there is no basis to believe that the Texas Supreme Court would determine that the Texas Constitution affords greater rights than the Fourth Amendment in this context.
Conclusion
As school districts and their legal counsel have an opportunity to digest the Earls decision, it is likely that more Texas school districts will explore use of random drug testing as a new tool to combat drug abuse. That a divided Supreme Court upheld the Tecumseh school district's program in a 5-4 decision most likely signals that we have reached the outer limits of constitutionally permissible student drug testing. While some school districts may see Earls as paving the way for testing of entire student bodies, even the most expansive reading of the Earls decision does not permit such a conclusion. The issue of whether all students, extracurricular and nonextracurricular participants alike, can be required to submit to testing as a requirement of attending public schools is an issue that will have to be addressed at some future date.
ENDNOTE
1 The author wishes to thank Frank Domino, a current South Texas College of Law student, for his contributions to this article.
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BASIC GUIDE TO PROPERTY TAX FORECLOSURES BY TEXAS SCHOOL DISTRICTS AND OTHER TAXING UNITS
F. Duane Force 1
I. Introduction. Each year, Texas school districts and other taxing units 2 levy a tax on all non-exempt real and tangible personal property located within their boundaries. Taxing units generally collect an estimated 90 to 95 percent of their taxes on a timely basis each year. The remaining 5 to 10 percent of delinquent taxes become subject to procedures for enforced collection. In enforcing the collection of delinquent taxes, the prevailing practice among taxing units in Texas, particularly school districts, is to look to private law firms in carrying out that work. 3 However, a few "in-house" collection operations remain in Texas whereby county attorneys, city attorneys, and in-house counsel for school districts perform the collection work. The work in enforcing the collection of delinquent taxes necessarily includes foreclosures of the tax liens that secure payment of the taxes, that being the focus of this article.
II. The annual tax cycle and tax liens.
A. Levy of tax and current tax bills. While property is generally required to be appraised for tax purposes at its market value as of January 1 of each year 4 , taxes are not actually levied by the taxing units until September or October each year, at which time the taxing units adopt their tax rates and notify their tax collectors of same. 5 Upon receiving notice of the tax rate, the tax collectors then apply the rate to the taxable values in order to determine the amount of tax, and current tax bills are mailed to property owners on or about October 1 each year. 6
B. Delinquent taxes and tax liens. Taxes that are not paid by January 31 of the year following the year for which they are imposed are considered delinquent. 7 On the delinquency date of February 1, the taxes begin to accrue penalty and interest at the rates prescribed by the Tax Code. 8 A tax lien against the taxed property securing payment of the taxes, penalties and interest is provided by Section 32.01(a) of the Code, and the lien attaches by operation of law, and without any perfection requirements, as of January 1 of the year for which the tax was imposed. The tax lien takes priority over virtually any other lien or interest in the property, including other liens and even a homestead interest, regardless of whether the tax lien attached before or after the other lien or interest arose. 9
III. Judicial foreclosures authorized. 10 At any time after taxes become delinquent, a taxing unit may enforce the collection of the taxes, penalties and interest by filing suit to foreclose the lien against the property, for personal judgment against the owner 11 , or both. 12 The suit must of course be brought in a court of competent jurisdiction. 13
A. Jurisdiction.
1. District courts. The district courts, being the primary trial courts of Texas, have jurisdiction in all cases in which the amount in controversy 14 exceeds $500. 15 Unlike other courts, there is no upper limit to the amount in controversy in district courts. 16 District courts also have juris-
diction over any matter of which exclusive jurisdiction is not granted to some other court. The district court's jurisdiction clearly includes suits seeking the foreclosure of tax liens, except in those cases where a probate court might have exclusive jurisdiction. 17
2. Constitutional County Courts. The constitutional county courts have original jurisdiction in civil cases in which the amount in controversy is $200.01 through $5,000, exclusive of interest. 18 Constitutional county courts do not have jurisdiction to enforce tax liens on land. 19 However, a suit seeking only a personal judgment against the taxpayer could properly be brought in the constitutional county court so long as the "amount in controversy" does not exceed the jurisdictional amount.
3. County Courts at Law. The legislature created the county courts at law, each with its own enabling statute and its own particular grant of jurisdiction. County courts at law have jurisdiction in civil cases where the amount in controversy exceeds $500, but does not exceed $100,000, excluding mandatory damages and penalties, attorney fees, interest and costs. 20 To determine the jurisdiction of a particular county court at law, the specific Government Code provision for that county's court at law should be consulted in addition to the code provisions that apply to statutory county courts at law generally. 21 A tax foreclosure suit in a county court at law may be proper so long as neither the amounts of taxes sought nor the value of the property exceeds the court's jurisdictional amount.
4. Justice Courts. Justice courts have jurisdiction over cases in which the amount in controversy is no more than $5,000, exclusive of interest and penalties. 22 Like constitutional county courts, the justice courts have no jurisdiction over the foreclosure of liens against real property .23 However suits seeking mere money judgments for the taxes, based upon personal liability, are proper in the justice courts if within the jurisdictional amount.
B. Filing the tax foreclosure suit.
1. The form of the taxing unit's petition. The required contents of a taxing unit's petition are set out under Tex. Tax Code § 33.43, and subsection (e) of that same section authorizes the state comptroller to prescribe the form of petition. The comptroller's promulgated model form of petition to initiate a delinquent tax suit is found under Rule 9.5151, State Comptroller Property Tax Rules. Section 33.43(e) further authorizes the attorney representing the taxing unit to develop his/her own form of petition. It should be noted that all taxes that are delinquent on a property must be included in the suit. 24 Otherwise, any taxes delinquent at the time final judgment is entered and not included in the judgment are barred from collection in the future. 25 With regards to pleadings, so long as all taxes delinquent at the time of filing are specified in the original petition, additional post-petition taxes that may become delinquent between the time of filing and the date of judgment need not be added by amended pleadings, and may instead be simply proven up and included in the judgment. 26
2. Persons to be made parties to delinquent tax suit.
a. Property owners and other lienholders. Two general "types" of defendants should be joined as parties: (a) anyone who has or may have an ownership interest in the property (i.e., record owners, persons purchasing the property on contract for deed, heirs, known adverse claimants, etc.), and (b) any persons holding a lien against the property (i.e., deeds of trust or mortgage liens found of record, federal and state tax liens, judgment liens evidenced by recorded abstracts of judgment, mechanic & materialman's liens evidenced by recorded affidavits or contracts, property owner association liens usually evidenced by affidavits filed of record, etc.). 27 Because the tax lien is a first and superior lien, inclusion of junior lienholders as defendants, in addition to the owners of the property, will extinguish their lien on the property through any tax sale which might ultimately be conducted. 28 Further, lienholders should be regarded as necessary parties under Rule 39, Texas Rules of Civil Procedure. Otherwise, any judgment and tax sale will be made subject to those interests held by persons not joined in the tax suit. 29 The goal when seeking a foreclosure should be to apply the entire equity in the property toward satisfying the tax claims, and that is accomplished simply by naming and serving every person with a known interest in the property in the underlying suit. 30 From this, it should become obvious that a title search is essential in advance of filing the tax suit, and reasonable costs associated with that search are recoverable by the taxing unit as an allowed expense. 31
b. Other taxing units with claims against same property. It is required by Section 33.44 of the Code that all taxing units having delinquent tax claims against the property subject of the plaintiff's petition be joined, thereby enabling a tax foreclosure by all interested taxing units in a single action. Once joined by the plaintiff taxing unit, a taxing unit must file its claim by way of intervention or otherwise and prove up its case. Otherwise, the court is directed to provide for the extinguishment of the non-participating taxing unit's lien on the property in the judgment. 32 A common practice in Texas is the joinder of multiple taxing units as co-plaintiffs, particularly in those cases where the taxing units are represented by the same counsel.
3. Service of process. Judicial foreclosures for delinquent taxes are, like any other civil suit, characterized by the requirement of the court acquiring personal jurisdiction over the defendants. That, of course, is secured by valid service of citation. It is Rule 117a, Texas Rules of Civil Procedure, that generally governs the issuance and form of citations in delinquent tax cases. The rule itself states that the general rules of civil procedure control issuance and service of citation, "except as herein otherwise specially provided." Rule 117a should therefore be read as containing exceptions to the general rules of service in civil actions. The rule sets out complete forms of
citation by personal service and citation by publication or posting, stating that if the form of citation used is substantially in the form found under the rule, then it shall be sufficient.
a. Personal service. An important distinction in serving a citation in a tax suit is that, unlike civil suits generally, a copy of the petition need not accompany the citation that is served. See Rule 117a(4). Also, once a citation is issued and served on behalf of any one of the taxing unit parties, the rule provides that no further citations are necessary prior to the court's determining all of the tax claims of those taxing units who are then parties or who may thereafter intervene. 33
b. Substitute service by publication or by posting. Rule 117a(3) authorizes substitute service by publication with respect to the following classes of persons: "Nonresident, Absent from State, Transient, Name Unknown, Residence Unknown, Owner Unknown, Heirs Unknown, Corporate Officers, Trustees, Receivers or Stockholders Unknown, Any Other Unknown Persons Owning or Claiming or Having an Interest." A condition precedent to publication of a citation directed to those classes of persons is the filing of an affidavit by the attorney representing the taxing unit that establishes the defendant as belonging to one of the stated classes of persons and the attorney's reasonable diligence in his/her attempts to ascertain the identity and/or whereabouts of each such person. All defendants so cited may be joined in a single published citation, and the citation commands the parties to appear and defend the suit "at or before 10 o'clock a.m. of the first Monday after the expiration of forty-two days from the date of the issuance thereof." The citation is required to be published one time a week for two weeks in a newspaper published in the county, the first publication to be not less than 28 days prior to the return day fixed in the citation. Also, a publisher's affidavit of the publication must be filed among the papers of the suit. Finally, if there is no newspaper in the county that is willing to publish the citation at the maximum fee of "the lowest published word or line rate of that newspaper for classified advertising", chargeable as costs and payable upon sale of the property, all of which is supported by the attorney's affidavit, then service of the citation may be made by posting at the courthouse door at least 28 days prior to the return day fixed in the citation. Proof of posting must be made by affidavit of the attorney for plaintiff, or of the person posting it. Id. Finally, as in other civil actions, an attorney ad litem must be appointed to represent any named defendants or classes of persons who have been cited by publication or posting and who have failed to appear or answer. 34 The attorney ad litem is compensated with a reasonable fee set by the court and taxed as part of the costs. Those costs are recoverable only from the defendants or from the costs recovered from the proceeds of any foreclosure sale. The taxing units are exempt from posting any security or liability for costs associated with the attorney ad litem. 35
4. Costs of suit. Taxing units are exempt from costs of suit and may not be required to post any security for costs,
including filing fees, service of process fees, attorney ad litem fees, arbitration fees, and mediation fees. 36 The only exception to that rule is that a taxing unit is required to pay the cost of publishing citations and notices of sale from the unit's general fund. 37
IV. Trial.
A. The taxing unit's prima facie case. It is provided by Tex. Tax Code § 33.47(a) as follows:
(a) In a suit to collect a delinquent tax, the taxing unit's current tax roll and delinquent tax roll or certified copies of the entries showing the property and the amount of the tax and penalties imposed and interest accrued constitute prima facie evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent against the property and the amount penalties and interest due on that tax as listed are the correct amounts.
By introducing into evidence its delinquent tax records, a taxing unit establishes its prima facie case as to every material fact necessary to establish its cause of action, including that all notices regarding taxes had been given to defendants. 38 The presumption created in favor of the taxing units by their delinquent tax records under § 33.47(a) also operates in a summary judgment setting in the same manner as in conventional trials. 39 Once the delinquent tax records are admitted, the burden naturally shifts to the defendants on affirmative defenses.
B. Common law defenses to tax foreclosure suits. Prior to the enactment of Title 1 of the Tax Code (Texas Property Tax Code) 40 , there were three statutory defenses to a delinquent tax suit: (1) non-ownership of the delinquent land at the time the suit was filed, (2) payment of the taxes in question, and (3) that the taxes were in excess of the limit allowed by law. 41 In order to prevail under the third defense, a taxpayer had the onerous burden of proving at trial that the value upon which the taxes were assessed, as determined by the now defunct quasi-judicial boards of equalization, were the result of "fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation." 42 In the case of a taxpayer defending on the basis of excessive valuation, that meant that the taxpayer had to show a "grossly excessive valuation" or, as some cases held, a valuation that "is so far above the fair cash market value as to shock a correct mind and thereby raise a presumption that the valuation was fraudulent or does not represent a fair and conscientious effort on the part of the board to arise at the fair case market value." 43 Mere errors of judgment did not suffice in setting aside the board's valuation. 44 Alternatively, a taxpayer could also show in defense a "substantial injury" based on a deliberate and arbitrary preconceived plan of the board in which large amounts of property, owned by others, were undervalued or even omitted from the tax roll, thereby increasing the defendant's tax burden in violation of the constitutional mandate of "equal and uniform" taxation. 45 An almost insurmountable problem of proof, however, was the requirement that the defendant marshal enough evidence to at least make a "reasonable showing" of comparative values of the omitted or other undervalued properties, the loss of tax
14
revenue, and the resulting "substantial injury" to him/her in the form of an increased tax burden (i.e., his/her "out-ofpocket" loss). 46
C. The "common law" constitutional defenses are supplanted by the Tax Code. 47 Underlying the onerous burdens historically placed on taxpayers in delinquent tax suits was the public policy favoring the orderly collection of revenue for local government. 48 However, with the enactment of the Property Tax Code in 1979, that policy was carefully balanced against the competing interests of taxpayers to have their property taxed in a constitutional manner. 49 The code sets out a detailed statutory scheme of taxation and "provides for a regular, systematic, certain, and effective remedy for a taxpayer who believes his tax to be erroneous for any reason whatever, including its alleged unconstitutionality * * *." 50 Appraisal Review Boards (ARB) are established, replacing the former boards of equalization, and the new boards are charged with determining taxpayer protests. 51 Those protests may rest on essentially any ground, including excessive valuations and unequal valuations. 52 Prior notice of proposed values is required to be furnished to taxpayers, thereby enabling them to protest administratively through the ARB prior to a final determination of their tax. 53 Further, appeals to district court are allowed by authorizing the filing of a petition for judicial review of the ARB's determination, in which the district court conducts a trial de novo on the issues presented. 54 It is important to note that with only two exceptions noted below, the Code's remedies of administrative and judicial review provided to taxpayers are exclusive and, in the absence of exhaustion of the taxpayer's remedies under Chapters 41 and 42, a taxpayer may not raise a defense in a delinquent tax suit that is based upon any ground for which a protest and judicial review are authorized under Section 41.41. 55 Moreover, compliance with the Code's procedures under Chapters 41 and 42 is a jurisdictional prerequisite for judicial review of a tax assessment in any proceeding. 56 While payment of the taxes in question would naturally be a "defense" to any delinquent tax suit, that issue does not relate to the "exhaustion doctrine" since the operative facts surrounding payment arise after the administrative review process has been carried out by the ARB. Thus, proof of payment simply serves to rebut the taxing unit's prima facie case established from its delinquent tax records. However, a lack of situs of the property within the boundaries of a taxing unit seeking to foreclose its lien against real property does constitute one of the two affirmative defenses provided by the Code, regardless of whether the defendant exhausted any remedies under Chapters 41 and 42. 57
D. But, are those pesky constitutional defenses really supplanted? The courts have generally found that the Tax Code's detailed provisions for a right to protest, a right to notice of hearing before the ARB, a right to judicial review under Chapters 41 and 42, and the exclusive remedies provision of Section 42.09 meet the constitutional right of due process. 58 However, beginning in 1985, a line of cases began to develop that held that a taxpayer was not necessarily confined to the remedies provided by the Code, and that a tax assessment could be collaterally attacked following delinquency if the notice of appraised value required by Section 25.19 was not delivered by the county appraisal district. 59 The reasoning of these cases is that the ARB never acquires "jurisdiction" over a proposed increase in value in the absence of delivery of notice of appraised value. Thus, the question of whether or not a taxpayer exhausted his/her administrative remedies is reached only after the ARB obtains jurisdiction. 60 The underlying principle in these cases is, of course, the taxpayer's right to due process before his/her property is encumbered with an additional tax lien. 61 In an apparent effort to fill the due process void, while at the same time protecting the government's revenue stream, the Legislature enacted a new Section 41.411 to the Code 62 . That section authorizes a property owner to protest before the ARB the failure of the chief appraiser or the ARB to provide any notice to which the taxpayer is entitled. To the extent that Section 41.411, coupled with the exclusive remedies provision of Section 42.09, will serve to minimize successful collateral attacks based on lack of notice remains to be seen as the case law develops in this area.
V. Judgment, order of sale, and enforcement by tax sale.
A. Judgment. In its judgment, the court must of course order the foreclosure of the tax lien and the sale of the property, and the judgment must specify the amounts of delinquent taxes, penalties, and interest awarded. 63 The court must also incorporate in its judgment a finding of the market value of the property, with the appraised value of the most current appraisal roll being presumed to be the correct value at the time of trial. 64 The finding of market value is for the purpose of aiding the officer charged with selling the property in setting the "minimum opening bid" at tax sale, which is the market value of the property stated in the judgment or the aggregate amount of the judgments against the property, whichever is less. 65 The court is further directed to reflect in its judgment the extinguishment of any liens for delinquent taxes owing to a taxing unit that was joined in the action but that failed to appear and establish its claims. 66
B. Order of sale. The order of sale is issued ministerially by the clerk of the court, upon application by the taxing unit. 67 The order must specify that the property may be sold to a taxing unit that was a party to the suit or to any other person, other than a person owning an interest in the property or any party to the suit that is not a taxing unit, for the "minimum bid amount." 68 In a case where the judgment amounts for taxes exceed the value of the property as stated in the judgment, the minimum bid is the value. However, neither the defendant nor any other person owning an interest in the property may take advantage of bidding the value, thereby escaping the shortfall in taxes. Those persons must instead bid the aggregate amount of judgments against the property if they are to bid at all. 69
C. The tax sale. Upon receipt of the Order of Sale, the officer charged with the sale must publish a notice of sale in some newspaper 70 published in the county once a week for three consecutive weeks, the first publication being not less than 20 days immediately preceding the day of sale. 71 Notice of the sale must also be given by the officer to the defendant(s), or defendant's attorney, in writing either by mail or in person, as required by Rule 647 and in the manner provided by Rule 21a, Texas Rules of Civil Procedure. 72 However, a failure to deliver or receive the notice, standing alone, is not sufficient to invalidate the sale. 73 The forms of notices of sale are governed generally by Rule 647, Texas Rules of Civil Procedure, which sets out the requisite contents of a notice of sale. However, T EX . T AX C ODE § 34.01 also governs notices of sale in tax cases and, to the extent of any conflict with Rule 647, § 34.01 controls. 74 Real property sold by virtue of an execution in a tax case must be sold at public auction at the courthouse 75 of the county in which the land is located on the first Tuesday of the month, between the hours of 10:00 a.m. and 4:00 p.m. 76 In the absence of any bids by the public in the prescribed minimum bid amount, the officer conducting the sale is required to bid the property off to the taxing unit that requested the sale. 77 A taxing unit taking title in that fashion then holds the property in trust for itself and for all other taxing units participating in the judgment until such time as the property may be resold. 78 Whether the property is bid off to the taxing unit or actually sold to a third party bidder from the public, the officer conducting the sale is required to furnish a deed 79 , and that deed operates so as to convey to the purchaser all of the interest owned by the defendants included in the underlying tax suit and judgment, including the right to possession of the property, subject only to the former owner's right of redemption as set out under Section 34.21 of the Code. 80
VI. Observations regarding this area of practice. There is some truth to the perception that the voluminous filing and prosecution of delinquent tax foreclosure suits have historically been characterized more by form-driven work than by any actual lawyering. As the old pre-code cases illustrate, a taxpayer's prospects of successfully defending a tax suit were dismal. That fact, coupled with the relatively insignificant amount of taxes usually in controversy, served to deter actual contested cases. As a result, cases were routinely settled by payment more often than not or, alternatively, by default judgment. Much has changed, however, in recent years. It is no secret that property taxes, particularly taxes imposed by school districts, have skyrocketed. Taxpayers are increasingly finding it in their financial interest to contest delinquent tax claims, notwithstanding the "exclusive remedies rule", with creative arguments such as those made in Garza v. Block Distributing Co., supra. With a growing legion of competent and formidable taxpayer counsel in Texas, even more creative theories are sure to arise in the never-ending effort to "beat city hall."
ENDNOTES
1 F. Duane Force is a partner with Linebarger Goggan Blair Peña & Sampson, LLP, a Texas based firm representing local governmental units in Texas, Louisiana, Tennessee, Florida, Philadelphia, Illinois, New Mexico, and Michigan. He coordinates the firm's Texas appellate practice in delinquent tax matters and chairs the firm's Practice and Legal Standards Committee. Email: email@example.com. Phone: (800) 262-7229. Fax: (512) 443-3493.
2 "Taxing units" are defined under TEX. TAX CODE § 1.04(12) as including school districts and "any other political unit of this state, whether created by or pursuant to the constitution or a local, special, or general law, that is authorized to impose and is imposing ad valorem taxes on property even if the governing body of another political unit determines the tax rate for the unit or otherwise governs its affairs."
3 Contracts for collection of delinquent taxes by private attorneys is authorized under TEX. TAX CODE § 6.30.
4 TEX. TAX CODE § 23.01(a).
5 TEX. TAX CODE §§ 26.05, 26.09.
6 TEX. TAX CODE § 31.01(a).
15
7 TEX. TAX CODE § 31.02(a).
8 TEX. TAX CODE § 33.01(a).
9 TEX. TAX CODE § 32.05.
10 Beyond the scope of this article is the remedy of tax warrants for the summary seizure of personal property owned by a person who owes delinquent taxes and the seizure of certain real property that has been abandoned, unused and vacant for prescribed periods of time. See TEX. TAX CODE §§ 33.21 et seq., 33.91 et seq.
11 It is the person who owns or acquires the property as of January 1 of the tax year in question who is personally liable for the tax. TEX. TAX CODE § 32.07(a).
12 Tex. Tax Code § 33.41(a).
13 Id.
14 "Amount in controversy" in delinquent tax cases is the amount of taxes sought, or the value of the property, whichever is higher. See Corsicana I.S.D. v. Corsicana Venetian Blind Co., 270 S.W. 2d 296 (Tex.Civ.App.—Waco 1954, no writ); Flowers v. Lavaca County Appr. Dist., 766 S.W. 2d 825 (Tex.App.—Corpus Christi, 1989, writ denied); Delk v. City of Dallas, 560 S.W. 2d 519 (Tex.Civ.App.—Texarkana 1977, no writ).
15 See Peek v. Equipment Serv. Co., 779 S.W.2d 802, 803-04 n.4 (Tex989) (assumed, but did not decide, that district court jurisdiction does not extend below $500.00).
16 TEX. GOV'T CODE §§ 25.0003(c), 26.042(d), 27.031.
17 See Bailey v. Cherokee County Appraisal District, 862 S.W.2d 581 (Tex. 1993); TEX. PROB. CODE § 5C. (the probate court has exclusive jurisdiction of delinquent tax claims against property held by an estate that is the subject of a pending "dependent" administration if the probate has been pending for 4 years or less and in the same county in which the taxes were imposed)
18 TEX. GOV'T CODE § 26.042(a).
19 TEX. GOV'T CODE § 26.043.
20 TEX. GOV'T CODE § 25.0003(c); Smith v. Clary Corp., 917 S.W.2d 796,798 (Tex.1996).
21 See Chapter 25, TEX. GOV'T CODE.
22 TEX. GOV'T CODE § 27.031(a)(1).
23 TEX. GOV'T CODE § 27.031(b)(5).
24 TEX. GOV'T CODE § 33.42(a).
25 TEX. GOV'T CODE § 33.42(c).
26 TEX. GOV'T CODE § 33.42(b).
27 See Coakley v. Reising, 436 S.W. 2d 316 (Tex. 1969). Failure to do so however does not deprive the court of jurisdiction to hear and determine the case and to render judgment as to those parties actually before it. See Id.; Sanchez v. Hillyer-Deutsch-Jarratt Co., 27 S.W.2d 634 (Tex. Civ. App.—San Antonio 1930, writ ref'd); Murphee Property Holdings Ltd. v. Sunbelt Savings, 817 S.W.2d 850 (Tex. App.—Houston [1st Dist.] 1991, no writ).
28 See TEX. TAX CODE § 34.01(n), providing that a tax deed following a tax foreclosure sale conveys to the purchaser all of the interest owned by the defendants in the underlying tax suit, subject only to the right of redemption.
29 American Realty Corp. v. Tinkler, 107 S.W.2d 627, 629 (Tex. Civ. App.—San Antonio 1937, writ ref'd)(In order for a judgment to bind a person, it is necessary for that person to have been made a party. Otherwise, the judgment as to an omitted person is absolutely void.)
16
30 In seeking only a personal money judgment against a taxpayer, neither lienholders nor any other persons with no statutory obligation to pay the taxes are necessary parties, because they have no stake in the outcome.
31 Taxing unit may recover "reasonable expenses that are incurred by the taxing unit in determining the name, identity, and location of necessary parties and in procuring necessary legal descriptions of the property on which a delinquent tax is due; * * *" TEX. TAX CODE § 33.48(a)(5).
32 Tex. Tax Code § 33.44(c).
33 As stated in the subsection (4) of the rule: "After citation or notice has been given on behalf of any plaintiff or intervenor taxing unit, the court shall have jurisdiction to hear and determine the tax claims of all taxing units who are parties plaintiff, intervenor or defendant at the time such process is issued and of all taxing units intervening after such process is issued, not only for the taxes, interest, penalties, and costs which may be due on said property at the time the suit is filed, but those becoming delinquent thereon at any time thereafter up to and including the day of judgment, without the necessity of further citation or notice to any party to said suit; and any taxing unit having a tax claim against said property may, by answer or intervention, set up and have determined its tax claim without the necessity of further citation or notice to any parties to such suit."
34 Rule 244, Texas Rules of Civil Procedure.
35 TEX. TAX CODE § 33.49(a); Aldine Independent School District v. Moore, 694 S.W.2d 454, 455 (Tex. App.—Houston [1st Dist.] 1985, no writ).
36 Id.
37 TEX. TAX CODE § 33.49(b).
38 TEX. TAX CODE § 33.47(a); Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex. 1982); Phifer v. Nacogdoches County Central Appraisal District, 45 S.W.3d 159, 174 (Tex. App.—Tyler 2000, pet den.); D & M Vacuum Service v. Zavala County Appraisal District, 812 S.W.2d 435 (Tex. App.—San Antonio 1991, no writ); Brian Independent School District v. Lamountt, 726 S.W.2d 192, 193 (Tex. App.—Houston [14th Dist.] 1987, no writ).
39 See Ivan Dement, Inc. v. Stratford Independent School District, 742 S.W.2d 820 (Tex. App.—Amarillo 1987, no writ).
40 Acts 1979, 66th Leg., p. 2217, ch. 841, § 1, generally effective January 1, 1982.
41 VERNON'S ANN. CIV. ST. art. 7329, repealed by Acts 1979, 66th Leg., p. 2329, ch. 841, § 6(a)(1), eff. Jan. 1, 1982 (with the enactment of the Property Tax Code).
42 State v. Whittenburg, 265 S.W.2d 569, 572-573 (Tex. 1954).
43 See City of Waco v. Conlee Seed Company, Inc., 449 S.W.2d 29, 32 (Tex. 1969).
44 Id., 449 S.W.2d at 30(citing State v. Whittenburg, supra.)
45 Whelan v. State, 282 S.W. 2d 378, 383 (Tex. 1955)(citing State v. Whittenburg, supra)
46 See, e.g., Orange v. Levingston Shipbuilding Co., 258 F.2d 240 (5th Cir. 1958)
47 Valero Transmission Co. v. Hays Consolidated Independent School District, 704 S.W. 2d 857, 861-862 (Tex. App.—Austin 1985, writ ref'd n.r.e.) [citing Texas Architectural Aggregate v. Adams, 690 S.W.2d 640 (Tex. App.—Austin 1985, no writ)]
48 See Id., 704 S.W. 2d at 860 note 1.
49 Id.
50 Id.
51 TEX. TAX CODE § 41.01.
52 TEX. TAX CODE § 41.41.
53 TEX. TAX CODE § 25.19.
54 See Chapter 42, TEX. TAX CODE.
55 TEX. TAX CODE § 42.09.
56 See Appraisal Review Board v. Internat'l Church of the Foursquare Gospel, 719 S.W.2d 160 (Tex. 1986); Northwest Texas Conference of United Methodist Church v. Happy Independent School District, 839 S.W.2d 140, 143 (Tex. App.—Amarillo 1992, no writ) (defense to delinquent tax suit based upon claim of tax exemption not within jurisdiction of the trial court in the absence of compliance with Tax Code provisions).
57 TEX. TAX CODE § 42.09(b)(2). The other affirmative defense, being nonownership as of January 1 of the year for which the tax was imposed, is available to a taxpayer in a suit that seeks merely to enforce personal liability for the tax. TEX. TAX CODE § 42.09(b)(1).
58 See, e.g., Brooks v. Bachus, 661 S.W.2d 288 (Tex. App.—Eastland 1983, writ ref'd n.r.e.)
59 See, e.g., Garza v. Block Distributing Co., 696 S.W.2d 259 (Tex. App.— San Antonio 1985, no writ); New v. Dallas Appraisal Review Board, 734 S.W.2d 712 (Tex. App.—Dallas 1987, writ denied).
60 New, 734 S.W.2d at 714 (citing Garza v. Block Distributing Co., supra.).
61 Garza, 696 S.W.2d at 262.
62 Acts 1985, 69th Leg., ch. 504, § 1, eff. June 12, 1985.
63 TEX. TAX CODE §§ 33.52, 33.53.
64 Tex. Tax Code §§ 33.50(a).
65 TEX. TAX CODE §§ 33.50(b), and see Clint Independent School District v. Cash Inv., Inc., 970 S.W.2d 535 (Tex. 1998).
66 TEX. TAX CODE §§ 33.44(c).
67 TEX. TAX CODE §§ 33.53(b).
68 TEX. TAX CODE §§ 33.50(b).
69 TEX. TAX CODE §§ 33.50(c).
70 The newspaper selected must (1) devote not less than 25% of its total column lineage to general interest items, (2) be published at least once each week, (3) be entered as second-class postal matter in the county where published, and (4) have been published regularly and continuously for at least 12 months before the particular notice of sale is published. GOV'T CODE § 2051.044(a). [See also Subsection (b) of § 2051.044 which provides that a newspaper has been published "regularly and continuously" under Subsection (a) if the newspaper omits not more than two issues in the 12 month period.]
71 The date of publication of the first of the three notices of sale may be counted as day one in determining whether notice was published for 3 consecutive weeks preceding the sale. Concrete, Inc. v. Sprayberry, 691 S.W.2d 771, 772 (Tex. App.—-El Paso 1985, no writ).
72 Collum v. DeLoughter, 535 S.W.2d 390 (Tex. App.—-Texarkana 1976, writ ref'd n.r.e.).
73 TEX. TAX CODE § 34.01(d).
74 Under subsections (a) and (s) of Sec. 34.01, it is provided that in the event of a conflict between Sec. 34.01 of the Code and the Texas Rules of Civil Procedure, Section 34.01 controls and prevails over the Rules.
75 The sale must be in the same location of the courthouse that is designated by commissioners' court under Sec. 51.002, Property Code, for the sale of real property generally. TAX CODE § 34.01(r).
76 Rule 646a, Texas Rules of Civil Procedure; TEX. TAX CODE § 34.01(r).
77 TEX. TAX CODE § 34.01(j).
78 TEX. TAX CODE § 34.01(k).
79 TEX. TAX CODE § 34.01(m).
80 TEX. TAX CODE § 34.01(n).
17
Notes
STATE BAR OF TEXAS P.O. Box 12487 Austin, Texas 78711-2487
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Journal of Applied Ecology 2005 42, 327–336
Blackwell Publishing, Ltd. An assessment of grassland restoration success using species diversity components
LEANNE M. MARTIN, KIRK A. MOLONEY and BRIAN J. WILSEY
Department of Ecology, Evolution and Organismal Biology, Iowa State University, Ames, IA 50011, USA
Summary
1. We do not know which aspects of community structure and ecosystem processes are restorable for most ecosystems, yet this information is crucial for achieving successful restoration.
2. We quantified three success criteria for 8–10-year-old grassland plantings in largescale tallgrass prairie restoration (reconstruction) sites relative to three nearby prairie remnant sites. The restoration sites included management of native ungulates and fire, important regulators of diversity and patchiness in intact grasslands. These have not been incorporated simultaneously into previous studies of restoration success.
3. We used the additive partitioning model of diversity, where α is neighbourhood (quadrat) scale diversity, β is accumulation of species diversity across neighbourhoods, and γ is total diversity. We decomposed α into richness and evenness to determine if both were equally restored.
4. The proportion of exotic biomass was similar between the restoration and remnant sites, but the proportion of exotic species and above-ground net primary productivity remained between two and four times higher in the restoration sites.
5. Alpha diversity (Simpson's 1/D) and richness (S) values were exceptionally high in remnant sites, and approximately twice those of the restoration sites. Alpha evenness was similar between the restoration and remnant sites.
6. Distance per se between quadrats was not related to diversity after accumulated quadrat area was taken into account. Therefore, we may be able to use the additive partitioning model of diversity in areas that differ in size, at least at the scale of this study.
7. Contrary to our original predictions, the proportion of β diversity (1 − D) was approximately twice as high in the restoration sites than in remnant sites, possibly because patches of individual species were larger in the restoration.
8. Synthesis and applications. We have shown that current restoration methods are unable to restore plant diversity in tallgrass prairie. Grassland restoration will be improved if the number of species that co-exist can be increased. New, local-scale restoration techniques are needed to replicate the high levels of diversity observed in tallgrass prairie remnant sites.
Key-words: beta diversity, evenness, Iowa, net primary productivity, restoration, richness, tallgrass prairie
(2005)
Journal of Applied Ecology
42, 327–336
doi: 10.1111/j.1365-2664.2005.01019.x
Introduction
An increasingly common goal of ecosystem restoration is to replicate the high levels of plant species, trait and
Present address and correspondence: Leanne M. Martin, Department of Biology, University of Nebraska at Omaha, Omaha, NE 68182, USA (fax 402 554 3532; e-mail firstname.lastname@example.org).
functional group diversity found in remnant sites (Pywell et al. 2003; Smith et al. 2003). Species diversity has two components (Stirling & Wilsey 2001): richness (number of species) and evenness (how evenly abundance or biomass is distributed among species). High evenness can increase invasion resistance, total and below-ground productivity, and can reduce local plant extinction rates (Wilsey & Potvin 2000; Wilsey & Polley 2002, 2004; Smith et al. 2004). Species richness has
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been found to be lower in grassland restoration sites in comparison with remnant sites (Kindscher & Tieszen 1998; Polley, Derner & Wilsey, in press) and, in contrast to expectations, richness has even decreased with time since restoration (Sluis 2002). Previous comparisons between restoration and remnant sites have revealed no differences in evenness (Kindscher & Tieszen 1998), although such a finding may depend on the scale of study (Polley, Derner & Wilsey, in press). These examples of restoration, however, have not included impact of grazing, which has been known to increase evenness in intact systems (McNaughton 1979; Hartnett, Hickman & Walter 1996).
Restoring spatial components of diversity is rarely recognized as a goal in restoration, even though it is an integral component of ecological systems (Menge & Olson 1990; Baer et al. 2003; Baer et al. 2004). Native ungulate activities in intact grasslands can increase β diversity (patchiness) of plant communities as a result of spatially variable grazing patterns, urination and wallowing (Knapp et al. 1999).
Restoring community structure (e.g. species composition and diversity) and ecosystem process rates are usually listed as two main objectives of restoration and vegetation improvement (Palmer, Ambrose & Poff 1997; Lockwood & Pimm 1999; Moore, Covington & Fule 1999; Smith et al. 2000). However, we must develop criteria with which to quantitatively measure success if we are to develop more successful restorations (Palmer et al. 2005). We propose that restoration success should quantify how well four main ecosystem attributes have been restored (modified from Bradshaw 1996 and Hobbs & Norton 1996):
1. the proportion of native species;
2. ecosystem processes (e.g. net primary productivity and nutrient cycling);
3. plant diversity at all spatial scales;
4. animal and microbial diversity at all spatial scales.
In this study, we focused on the first three criteria because primary productivity and vegetative habitat components usually have to be restored before animals are reintroduced (Merrill et al. 1999). Our objective was to quantify success of grassland plantings within a large tallgrass prairie restoration (reconstruction) project in Iowa, USA, compared with three nearby remnant prairies. Tallgrass prairie is an appropriate ecosystem in which to evaluate restoration success because it is one of the most endangered ecosystems, with 82–99% of North American tallgrass prairie now converted (Samson & Knopf 1994), and its diversity and productivity can be measured relatively easily. Our study provides a valuable perspective on tallgrass restoration as plantings were located in the largest tallgrass prairie restoration in the USA, and the restoration sites included both fire (Cottam & Wilson 1966; Sluis 2002; Polley, Derner & Wilsey, in press) and native ungulate grazing, which are two of the most critical regulators of intact grassland structure (Collins et al. 1998; Knapp et al. 1999; Copeland, Sluis & Howe 2002).
Materials and methods
Neal Smith National Wildlife Refuge contains the largest prairie restoration (reconstruction) project in the USA. The objectives of the refuge staff are to use locally collected seeds combined with prescribed fire and grazing by native ungulates to restore tallgrass prairie. The restoration site was established in 1991 in southern Iowa, USA (41°33′N, 93°17′W), and is currently 2104 ha, of which approximately 1200 have been seeded with tallgrass prairie species. Bison and elk were reintroduced to a 303-ha enclosure in 1996 and 1998, respectively, which is where our study took place. Prior land use included corn Zea mays L. and soybean Glycine max (L.) Merr rotations and a few scattered pastures, and crops were probably fertilized on an annual or biannual basis. There were 20 different plantings in this area (mean size 14 ha), and each was seeded with separate bulk mixes collected from local prairie remnant sites. Management practices included yearly spring burning, which is a common practice at the outset of restoration projects (Packard & Mutel 1997; Copeland, Sluis & Howe 2002), and occasional mowing to control exotic species (P. Drobney, personal communication). However, none of our sites was burned or mowed during the years (2002 and 2003) of our sampling.
Three nearby tallgrass prairie remnant sites were selected for a range of reference sites based on their proximity to the restoration area (A.C. Morris = 36 km, Rolling Thunder = 51 km, Sheeder = 109 km), similar soil types (mollisols) and, most importantly, because they had never been ploughed or overseeded with forage grasses. The A.C. Morris Prairie (41°47′N, 92°58′W) is an 8-ha remnant that was grazed before 1977; Rolling Thunder Prairie (41°12′N, 93°39′W) is a 50-ha remnant that was grazed by cattle before 1983 (Herzberg & Pearson 2001); and Sheeder Prairie (41°41′N, 94°35′W) is a 10-ha remnant that was cut for hay and possibly grazed by cattle prior to 1968 (Herzberg & Pearson 2001). Current management of remnant sites includes prescribed burning every few years. Annual precipitation at all sites has a unimodal distribution, with peak precipitation in May–June, and averages approximately 882 mm year − 1 .
To standardize our sampling, we selected eight plantings within the enclosure at Neal Smith that were seeded between 1994 and 1996 on formerly cropped areas. Paired 6 × 8-m plots (left and right) were established in each of the eight plantings in the restoration. Plots were paired because of their utilization in a separate study and pairing was taken into account in statistical analyses as explained below. By request of refuge staff, restoration plots were kept out of view of visitors when possible, and this precluded completely
329 Community structure of restored tallgrass prairie
random locations. The C3 grass Elymus canadensis was added to the mix (6·7 kg ha − 1 ) as a cover crop for plantings in the northern half of the site. Therefore, the sampling pattern in restored plantings resulted in four paired plots (eight total) in which E. canadensis was included in the seed mixes and four paired plots in which it was not. Eight plots of 6 × 8 m were also established within each remnant using randomly sampled locations.
Above-ground biomass was clipped to 2 cm in a 40 × 100-cm quadrat within each plot at each site, and surface litter was collected during three periods: 24 September–2 October 2002, 27 May–9 June 2003 and 19–26 August 2003. Early and late sampling dates were used to ensure sampling of both early and late-growing species. We sorted above-ground plant material from each plot into live (at least some green present) and standing dead (green absent) mass, and then sorted live material by species. Biomass, standing dead mass and litter were dried to constant mass (for 48 h) at 65 °C and weighed.
The proportions of exotic biomass and species (exotic/total) were calculated at the quadrat level. Plant species were designated as native or exotic based on Eilers & Roosa (1994), with the exception of Rubus ablatus, which was designated as native using Widrlechner (1998).
Above-ground net primary productivity (NPP) was estimated with peak biomass, and consumed biomass was added to peak biomass at the restoration sites for 2003. Consumption was estimated using the temporary exclosure technique of McNaughton, Milchunas & Frank (1996).
To quantify spatial aspects of diversity, we partitioned it into α and β components (Whittaker 1960; Lande 1996), where α was neighbourhood (quadrat)-scale and γ was prairie-scale diversity. We used the additive partitioning model of diversity (β = γ − α) because γ, α and β have the same units and thus can be compared directly (Lande 1996; Crist et al. 2003). Alpha diversity was calculated using Simpson's diversity index 1/D (hereafter referred to as Simpson's diversity), where D = , with pi being the relative biomass of each species i. Alpha diversity was then decomposed into richness (S) and evenness (E) components (Buzas & Hayek 1996; Smith & Wilson 1996). Evenness was calculated as E = 1/D/S because this index is mathematically independent of richness (Smith & Wilson 1996). Gamma (γ) diversity was partitioned into α and β using the 1 − D form of Simpson's index (hereafter referred to as 1 − D) and S because of their desirable statistical properties when additively partitioned (Lande 1996). ∑ p i 2
Sites differed in size, and thus plots differed in their distance from one another within a site. Varying dis-
tances between quadrats could potentially complicate comparisons of sites. To determine if distance between quadrats was related to diversity above and beyond the effect of accumulated quadrat area, we plotted all possible combinations of S and 1 – D against area, and then estimated the best-fitting curve (a three-parameter power curve; y = y0 + ax b ) to data from each site (Fig. 1). We then tested if residuals from these plots were related to mean distance (measured using ArcView GIS) between quadrats with linear regressions.
We performed repeated-measures for each variable except proportion of β diversity, because an appropriate test of between-group differences has not been developed. For proportion of β we took the conservative approach of assigning significance if the restoration site mean was outside the range of remnant sites. Paired plots were more similar (Bray–Curtis similarity measure; Krebs 1998) to each other than to other plots within the restoration, indicating that pairs were not completely independent of each other. Therefore, we adopted the conservative approach of using the degrees
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© 2005 British Ecological Society, Journal of Applied Ecology, 42, 327–336
of freedom (7) associated with one plot from each pair to test restoration vs. remnant effects. We did not average across pairs so that they would be more comparable with the sampling design in each remnant. Above-ground NPP, litter and standing dead mass were ln-transformed before analyses to improve normality. A priori contrasts were used to test the hypothesis that the restoration sites differed from the three remnant sites combined.
In a separate analysis using the restoration site only, we tested for differences between the E. canadensis cover crop treatment using repeated-measures (the distance from Walnut Creek was a covariate because the creek potentially carried exotic seeds). In this analysis, we averaged across paired plots within each planting. We tested proportion of exotic species and biomass, number of exotic species and α diversity (S, E and 1/D).
Results
Restored plantings were dominated by the native grasses Andropogon gerardii and Sorghastrum nutans or the forb Helianthus grosesseratus (Table 1). The proportion of exotics per 0·4 m 2 was not consistently greater in the restoration sites and depended on whether the proportion of species or proportion of biomass was used (Table 2 and Fig. 2). The proportion of exotic species was between 236% and 413% higher in the restoration than in remnant sites (Fig. 2a). The absolute number of exotic species was also significantly greater in the restoration sites (Table 2). However, the proportion of exotic biomass was not significantly different between the restoration and remnant sites (Table 2 and Fig. 2b). The exotic Poa pratensis made up a large portion of biomass in remnant sites and accounted for the lack of a difference (Table 1). Across sites, the proportion of exotic biomass was greatest in May–June 2003 (Table 2 and Fig. 2b).
At the restoration sites, the proportion of exotic species was significantly greater in plantings without the cover crop treatment (F1,5 = 8·99, P = 0·03; mean across times for cover crop = 0·18; no cover crop = 0·45). The cover crop treatment had no effect on exotic biomass and absolute number of exotic species (F1,5 = 0·06, P = 0·81; F1,5 = 2·02, P = 0·21, respectively; means of 0·12 and 2·3 for cover crop and 0·17 and 3·5 for no cover crop for biomass and exotic species, respectively).
Above-ground net primary productivity (g m − 2 year − 1 ) without consumption added was similar between the restoration and remnant sites for 2002 and 2003 (F1,28 = 0, P > 0·1, F1,28 = 1·18, P > 0·1) but it was significantly greater at the restoration sites when we included estimates of consumption in 2003 (F1,28 = 16·84, P < 0·01; Table 3). Litter mass was significantly greater in the restoration sites in 2003 (time–contrast inter-
action, F2,56 = 5·21, P < 0·01) whereas standing dead mass did not differ (F1,28 = 2·31, P = 0·14; Table 1).
Simpson's diversity and richness at the plot scale were significantly greater in remnant sites, but α evenness did not differ between the restoration and remnant sites (Table 2 and Fig. 3). Simpson's diversity and richness in the restoration sites were 43–47% and 43–58% that of remnant sites (Fig. 3). Temporal variation in species richness differed between the restoration and remnant sites, with an increase through time in restoration sites, while remnant sites peaked in May–June 2003 (time–contrast interaction; Table 2 and Fig. 3a). Alpha richness was greater in the remnant sites in spring because of the greater number of rare vernal forbs that were absent from the restoration sites.
Simpson's diversity and evenness were significantly greater in the cover crop sites (F1,5 = 36·33, P < 0·01; F1,5 = 7·47, P = 0·04; means of 3·9 and 0·4 for cover crop and 1·2 and 0·2 for no cover crop for Simpson's diversity and evenness, respectively). Species richness
331 Community structure of restored tallgrass prairie
© 2005 British Ecological Society, Journal of Applied Ecology, 42, 327–336
Table 1. Mean relative biomass (percentage of total) and relative frequency of the most common species in 8–10-year-old plantings within a large-scale tallgrass prairie restoration site (Neal Smith National Wildlife Refuge, NS) and three remnant prairie sites (A.C. Morris, M; Rolling Thunder, RT; Sheeder, Sh). Exotic species are in bold, and nomenclature follows Eilers & Roosa (1994). Mean standing dead mass and litter (g m − 2 ) (SE) are included at the end of each site list
was significantly greater in the cover crop treatment during the 2003 dates (time–contrast interaction; F2,10 = 4·93, P = 0·03; mean richness of 7·3, 11·8 and 14·2 for cover crop and 7·0, 6·9 and 6·5 for no cover crop for September–October 2002, May–June 2003 and August 2003, respectively).
After considering accumulated quadrat area, distance was not significantly related to species richness or diversity (richness: mean slope 0·00035, range −0·0097–0·0127, r 2 values ≤ 0·03; diversity: mean slope 0·00013, range
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Table 2. Results of (F, P-values) for comparisons of community variables (alpha level, 0·4 m 2 ) between a large tallgrass prairie restoration and three remnant prairie sites
*Biomass of exotic species/total biomass.
†Number of exotic species/total number of species.
‡Number of exotic species.
§Number of species.
¶Simpson's evenness (1/D/S).
**Simpson's diversity (1/D).
Table 3. Above-ground productivity (g m − 2 year − 1 ) (SE) for a large tallgrass prairie restoration (Neal Smith National Wildlife Refuge, NS) and three remnant prairie (A.C. Morris, M; Rolling Thunder, RT; Sheeder, Sh) sites using three methods of estimation
−0·0001–0·0005, nine r 2 values ≤ 0·04; remaining three between 0·08 and 0·17). Therefore, based on this lack of a relationship, we estimated γ diversity using combined quadrats (Crist et al. 2003).
In contrast to our expectations, the proportion of β diversity was 175–226% greater in the restoration sites than in remnant sites (Fig. 4d–f ). The proportion of β richness was 104–117% greater in the restoration sites than in remnant sites (Fig. 4a–c).
Abandoned crop fields often have high levels of nitrogen that can lead to very high productivity in early restoration and conservation plantings (Baer et al. 2002; Blumenthal, Jordan & Russelle 2003), and our results were consistent with this trend. Higher NPP might have been at least partially responsible for the lower diversity of the restoration sites if high biomass and litter were suppressing recruitment of rare species.
Discussion
The few studies attempting to determine grassland restoration success have not included restorations that managed both fire and native ungulates, which can affect species richness, evenness and patchiness in intact ecosystems (McNaughton 1979; Hartnett, Hickman & Walter 1996; Collins et al. 1998; Knapp et al. 1999). Although we found large differences in diversity and NPP between restoration and remnant sites, site managers were able to restore dominant native prairie species and levels of native biomass. The most novel of our findings was that, in contrast to our expectations, we detected a greater proportion of β diversity and richness at the restoration sites, and distance between quadrats did not affect the analysis of spatial diversity components, at least at this scale. The proportion of native biomass may be easier to restore than the very high small-scale species richness and diversity of remnant sites.
Cover crops are thought to influence growth of seedlings positively (Withgott 2000), but few studies have tested this hypothesis. Pywell et al. (2002) did not detect a positive influence of a cover crop on diversity, although it significantly reduced the number of unsown grass species after the first year. Our study found that a cover crop significantly increased species diversity, richness and evenness, and reduced the proportion of exotic species. However, treatments were not fully interspersed in the current design and further experimental work is needed to test the generality of these results.
We found that α diversity and richness were much lower in the restoration than remnant sites. Thus, our results were consistent with other studies examining restoration success that found lower α richness in
333 Community structure of restored tallgrass prairie
© 2005 British Ecological Society, Journal of Applied Ecology, 42, 327–336
restoration sites (Kindscher & Tieszen 1998; Sluis 2002). Like Polley, Derner & Wilsey (in press), α evenness did not differ between the restoration and remnant sites. Evenness has recently been shown to be affected more by competition than migration processes (B. J. Wilsey & G. Stirling, unpublished data) and our study included grazing in the restoration sites, which has been found to increase evenness in intact systems (McNaughton 1979; Hartnett, Hickman & Walter 1996). Although grazing was not studied directly here, our results suggest that grazing is maintaining high quadrat-scale evenness (where competition among plants takes place) to a level that is comparable with that of remnant sites. These results imply that smallscale evenness may be easier to restore than richness. Remnant prairies had exceptionally high levels of smallscale species richness (19·0 species 0·4 m − 2 in May– June) and Simpson's diversity (6·1 0·4 m − 2 in May–June) and this may be particularly difficult to restore.
The additive partitioning model provides a useful way of partitioning diversity into spatial components, because diversity at all levels is in the same units (MacArthur, Recher & Cody 1966; Lande 1996), which enables estimation of the proportions of α and β (Veech et al. 2002; Crist et al. 2003). However, the additive partitioning model could potentially be problematic in cases where sites of different size are randomly sampled and compared. In the original multiplicative partitioning model proposed by Whittaker (1960), β diversity was usually calculated as species turnover with distance along a gradient. The additive partitioning method allows β diversity to be calculated among random samples (Veech et al. 2002). Using this method with sites of differing sizes could potentially cause biased estimates of β because of the increased likelihood of encountering different microtopography in large areas (Whittaker 1960; Nekola & White 1999; Balvanera et al. 2002; Condit et al. 2002). However, we found no relationship with distance at the scale used in our study. This suggests that it might be possible to compare differentsized grasslands with the additive partitioning method.
Allison (2002) described anecdotally that restored prairies have large single-species patches and remnant sites have highly intermingled species, but this has never been quantified until now. High β richness (Wagner, Wildi & Ewald 2000; Crist et al. 2003) and β diversity (McNaughton 1983; Harrison & Inouye 2002) have been found in many systems and taxa. Although there was high dominance and few species per quadrat in the restoration sites, the proportions of β diversity and richness were greater than in remnant sites because the identity of the dominant species changed between quadrats in the restoration sites. Combining quadrats decreased the relative abundance of each dominant species and increased the number of species, thereby increasing evenness and richness and thus overall diversity. Remnant sites, however, were particularly species rich (Monsen 2001) and had very high evenness, even at the quadrat level, so combining quadrats did not increase diversity as much. One possible explanation for the greater proportion of β diversity in the restoration sites is that dominant species might spread from a local point to form a larger, more clumped distribution during early years of establishment (Sluis 2002; Derner et al. 2004). A prediction stemming from this hypothesis is that species patches should be larger in restoration than in remnant sites (Derner et al. 2004).
Although positive effects of native ungulates on diversity and spatial variability are well-documented in intact grasslands (Hartnett, Hickman & Walter 1996; Collins et al. 1998; Knapp et al. 1999), their effects on restoration sites have not been reported. Our findings
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suggest that positive effects of native ungulates may be negated in restoration sites if rare species are unable to colonize disturbance sites, because species pools may regulate richness in some situations (Gough, Grace & Taylor 1994; Pywell et al. 2002; Foster & Tilman 2003). Alternative hypotheses for low richness in restorations include: (i) frequent spring burning of restorations, which may promote increased production of dominant C4 grasses (Howe 2000), which may in turn suppress establishment of other species; and (ii) at 8–10 years old, restoration sites may not be old enough to have developed the high diversity of remnant sites.
Finally, we found that even a very large restoration project was unable to restore fully all aspects of species diversity. Surprisingly, neighbourhood-scale species diversity appeared to be the hardest to restore. To restore fully the spatial patterns in species richness and diversity, grassland restoration sites should be managed
Community structure of restored tallgrass prairie
© 2005 British Ecological Society, Journal of Applied Ecology, 42, 327–336
for high levels of species co-existence at the neighbourhood scale, which characterizes remnant sites. Therefore, management regimes should focus on local-scale restoration methodologies such as mowing (Holl & Crone 2004). Keeping plants small and dense during the earliest stages of development could help in restoring high small-scale species diversity.
Acknowledgements
Many thanks to Pauline Drobney at Neal Smith National Wildlife Refuge, Brad Bauer and Dan Haug for help with collecting and processing data, Anna Loan-Wilsey for help with GIS, and Wayne Polley, Tom Jurik, Phil Hulme, Thomas Crist and an anonymous referee for comments on earlier versions of this paper.
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Polley, H.W., Derner, J.D. & Wilsey, B.J. (2005) Plant species diversity in remnant and restored tallgrass prairies: patterns and controls. Restoration Ecology, in press.
Pywell, R.F., Bullock, J.M., Hopkins, A., Walker, K.J., Sparks, T.H., Burke, M.J.W. & Peel, S. (2002) Restoration of species-rich grassland on arable land: assessing the limiting processes using a multi-site experiment. Journal of Applied Ecology, 39, 294–309.
Pywell, R.F., Bullock, J.M., Roy, D.B., Warman, L., Walker, K.J. & Rothery, P. (2003) Plant traits as predictors of performance in ecological restoration. Journal of Applied Ecology, 40, 65–77.
Samson, F. & Knopf, F. (1994) Prairie conservation in North America. Bioscience, 44, 418–421.
Sluis, W.J. (2002) Patterns of species richness and composition in re-created grassland. Restoration Ecology, 10, 677– 684.
Smith, B. & Wilson, J.B. (1996) A consumer's guide to evenness indices. Oikos, 76, 70–82.
Smith, M.D., Wilcox, J.C., Kelly, T. & Knapp, A.K. (2004)
Dominance not richness determines invasibility of tallgrass prairie. Oikos, 106, 253–262.
Smith, R.S., Shiel, R.S., Bardgett, R.D., Millward, D., Corkhill, P., Rolph, G., Hobbs, P.J. & Peacock, S. (2003) Soil microbial community, fertility, vegetation and diversity as targets in the restoration management of a meadow grassland. Journal of Applied Ecology, 40, 51–64.
Smith, R.S., Shiel, R.S., Millward, D. & Corkhill, P. (2000) The interactive effects of management on the productivity and plant community structure of an upland meadow: an 8-year field trial. Journal of Applied Ecology, 37, 1029–1043.
Stirling, G. & Wilsey, B. (2001) Empirical relationships between species richness, evenness, and proportional diversity. American Naturalist, 158, 286–299.
Veech, J.A., Summerville, K.S., Crist, T.O. & Gering, J.C. (2002) The additive partitioning of species diversity: recent revival of an old idea. Oikos, 99, 3–9.
Wagner, H.H., Wildi, O. & Ewald, K.C. (2000) Additive partitioning of plant species diversity in an agricultural mosaic landscape. Landscape Ecology, 15, 219–227.
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Received 10 May 2004; final copy received 20 January 2005
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THE DUTCH CRISIS AND RECOVERY ACT: ECONOMIC RECOVERY AND LEGAL CRISIS?
J Verschuuren
1 Introduction
Throughout the world, governments are responding to the financial and economic crisis. Such responses vary from supporting the banking system to adopting economic stimulus packages. The latter vary greatly. Some countries focus on specific sectors, often the green energy sector or, in a broader sense, the sustainable technology sector. Others have an even broader scope. Some countries use only financial instruments, such as subsidies or tax incentives, to stimulate (certain sectors of) the economy. Others apply a whole range of legal instruments. Combinations of measures such as these are seen as well. The article focuses on the Netherlands. This country opted for the enactment of a special act containing literally hundreds of articles, all of which are meant to speed up decisionmaking on a wide variety of activities, in the hope that after the crisis is over, all these projects can immediately be carried out, without any delay caused by legal procedures in court or elsewhere. The Crisis and Recovery Act 1 is seen as an example of ad hoc legislation. Drafted in a great hurry, it is meant to be in effect for only five years and contains several experimental instruments. The CRA has met with great criticism because it allegedly curtails citizens' procedural rights, since it focuses almost exclusively on environmental standards as obstructions that need to be removed and because it infringes international and EU law. The article describes the main characteristics of the new law and analyses the legal critique of the CRA, with the aim of assessing this new law's ability to help the economy to recover without bringing about a crisis in the legal system.
Jonathan Verschuuren. MA LLM PhD (Tilburg University). Professor of International and European Environmental Law, Tilburg University, Netherlands, and Extraordinary Professor of Law, Faculty of Law, North-West University, South Africa (firstname.lastname@example.org). The article is based on a paper presented at an HL Swanepoel Lecture at the Faculty of Law, North-West University, in March 2010.
1 Crisis- en Herstelwet of 18 March 2010 – hereafter CRA, as published in the Government Gazette (Staatsblad) 2010, 135.
2 Aim and content of the Crisis and Recovery Act
The CRA has four main elements: 2 (a) special provisions for specific projects; (b) experimental rules on "development areas"; (c) special provisions for residential construction projects; and (d) provisions simplifying and streamlining twenty existing acts. These are discussed hereafter.
2.1 Special provisions for specific projects
Politically, in the media and in legal scholarship, most attention has been directed to the first chapter of the CRA. This chapter applies to seventy projects of national importance listed in Annex II and to categories of projects described more generally in Annex I. The provisions that apply to these projects aim to simplify the decisionmaking process significantly so that the projects can be carried out as soon as possible, thus stimulating the recovery process of the economy. All the listed projects are large developmental projects, such as the extension of large industrial sites, large-scale wind parks, large urban development plans and projects concerning central infrastructure (highways, railways, airport extensions and the renovation of bridges). General categories of projects also include infrastructural projects, including water management and sustainable energy projects. These provisions expire on 1 January 2014.
Changes made to existing administrative law in order to speed up decision-making on these projects include (this list is not exhaustive):
(a) Decentralised government bodies cannot appeal against decisions by the central government that are not directed to them. This is contrary to existing administrative law. Unlike some other countries, it is common practice for government bodies to appeal the decisions of other government bodies; 3
2 Other elements are not discussed here because they are considered to have much less impact on the legal system, and are thus of less relevance for the main research objective of the article. An example of these is a provision permitting homeowners to let their homes temporarily whilst they are for sale (A 2.8).
3 A 1.4 CRA.
(b) Substantive illegalities can be passed, should these not affect interested persons. The current General Administrative Law Act 4 already has a comparable provision for procedural illegalities. This has now been extended to include substantive illegalities. 5
(c) The length of processes has been curtailed. Courts have to apply the fasttracking procedure already in existence, originally designed for the preliminary suspension of cases. 6
(d) Courts must decide within six months of the date on which the decision was made (that is, the start of the appeal term). 7 This replaces the existing provision that courts have to reach a decision within a "reasonable" term.
(e) Appellants can lodge only motivated appeals 8 and are no longer permitted to add additional grounds for appeal later. 9 This ends the common practice of lodging a "pro forma" appeal and adding motivations later during the trial.
(f) The "relativity" principle has been introduced, meaning that claimants can invoke only rules that are specifically intended to protect their interests. 10
(g) In instances in which an environmental impact assessment 11 is required, it is necessary neither to assess alternatives nor to require a recommendation by the EIA committee. 12
(h) The "lex silencio positivo" principle has been introduced on a wider scale. According to this principle, a permit is legally deemed to be issued in cases in which the competent authority does not make a timely decision on an application for a permit. 13 Although already present in the GALA, this provision is now applied to more decisions (certain spatial planning decisions).
4 Algemene Wet Bestuursrecht of 4 June 1992 – hereafter GALA.
5 A 1.5 CRA.
6 A 1.6(1) CRA.
7 A 1.6(4) CRA.
8 A 1.6(2) CRA.
9 A 1.6a CRA.
10 A 1.9 CRA. Under common Dutch administrative law, once one is accepted as an interested person, one may have the entire decision reviewed by court.
11 Hereafter EIA.
12 A 1.11 CRA. Under Dutch environmental law, an EIA has to include an assessment of alternatives, such as other routes for a road or other locations for a harbour extension. The EIA committee is an independent scientific committee that advises on the scientific quality of the draft EIA.
13 A 1.12 CRA.
2.2 Experimental rules on "development areas"
The second important element of the CRA is the introduction of an experimental set of rules on "development areas". 14 Under Article 2.2, the central government can designate either urban or industrial development areas. The "bubble" concept is applied in these areas, that is, environmental standards apply only to the entire area and no longer to individual polluters. The local authority has to achieve a "good environmental quality" without having to apply the same environmental standard to each source of pollution. This offers the possibility of balancing polluting activities with clean activities in the area, thus creating additional "pollution rights" within the overarching environmental quality standard. Local authorities can also redistribute environmental rights within the development area to enable development without impairment to the overall environmental quality. The basis for such a redistribution of pollution rights is the newly created instrument of the "development area plan". Should, for example, the authorities wish to enable the construction of a new road or the establishment of a new industrial plant in an already polluted area, existing activities within the area can be forced to reduce emissions so that the new activity can proceed without infringement of existing environmental quality standards at the overarching development area level. Under current environmental law, each activity has to comply individually with the relevant environmental quality standard. To enable the experiment to be executed, the CRA has made it possible to deviate from a whole series of environmental and spatial planning laws. 15 The administrative rules for specific projects dealt with under Section 2.1 above apply to decisions concerning activities in development areas. 16
This is experimental legislation, in that the central government will designate the experimental areas and monitor the results. An experiment can last up to ten years, with a possible extension of up to five years. The provisions of the CRA on development areas expire on 1 January 2014. This means that an experiment can last until 1 January 2029.
14 See extensively Klijn and Stam 2010 TBR 56–64.
15 A 2.4 CRA. See Nijmeijer 2010 TBR 42–49.
16 A 1.1(1)(b) CRA.
2.3 Special provisions for residential construction projects
The third main element of the CRA is the introduction of the "one-stop-shop" principle for the development of new residential areas comprising anything between twelve and 2000 new houses. Although only applicable to the construction of new residential areas, the provisions of this element are quite far-reaching. Practically, none of the legal provisions that require decisions to be made by any government authority is applicable to these projects. 17 These can include provisions in a wide variety of laws and regulations in fields such as the environment, nature conservation, spatial planning, water management and infrastructure. The only exceptions are provisions in nature conservation law and law protecting archaeological sites, both of which are sets of rules with an international and EU background. Rather than applying all these regular pieces of legislation, there is only one "project decision" to be made by the local city council. In making the project decision, the local council has to take into account the norms in the laws and regulations that were declared inapplicable. The "one-stop-shop" principle has thus been introduced into Dutch legislation. The initiator of a building project has now only to go to one authority, which reaches a decision on its own and provides the applicant with one integrated permit. There are ample possibilities for public participation, albeit just once (since there is only one decision). Appeal is possible in one instance only and the administrative rules on the decision-making process described above under Section 2.1 apply to the project decision as well. 18 Again, these provisions expire on 1 January 2014.
2.4 Provisions simplifying and streamlining twenty existing acts
The last element of the CRA that the article highlights comprises by far the largest part of the Act. The remaining forty pages of the CRA contain a seemingly endless list of modifications, both large and small, of existing rules in a wide variety of laws, mainly in the field of the environment and energy. Although they are presented as being aimed at simplifying and streamlining existing legislation, many of the amendments are actually difficult to link to the economic crisis. Although some are
17 A 2.10(2) CRA.
18 A 1.1(1)(c) CRA.
merely textual corrections, others have been discussed for many years and have suddenly ended up in the CRA, which seems to have acted as a drag-rope for old political desires. The most significant difference between this and the other three central elements is that the amendments in existing environmental and energy law do not expire on 1 January 2014. These amendments, therefore, need extra careful scrutiny. Two examples of the changes that can be linked to the financial crisis are:
(a) the introduction of rules to simplify and speed up decision-making on the construction or extension of sustainable energy installations, particularly in the Electricity Act 19 and the Spatial Planning Act 20 – these amendments are clearly in favour of energy companies that wish to invest in the production of sustainable energy;
(b) the relaxation of nature conservation rules in various ways, for instance, by regulating that existing activities in or around protected areas do not need a permit under the Nature Conservation Act 21 (this is now only the case for existing activities that are regulated under a management plan for the protected area concerned). 22 Another far-reaching example is that nitrogen emissions by farms no longer have to be individually regulated through permits because the central government wishes to rely on the general policy to reduce nitrogen levels in those parts of the country in which the levels are so high that severe damage to protected areas is evident. Obviously, this favours farmers who were previously unable to increase the size of their herds. 23
19 Elektriciteitswet 1998 of 2 July 1998.
20 Wet Ruimtelijke Ordening of 20 October 2006.
21 Natuurbeschermingswet 1998 of 25 May 1998.
22 See Bastmeijer 2009 M en R 628–633.
23 Veltman and Smits 2009 M en R 638–641.
3 Analysis of the legal debate
The CRA has generated a great deal of criticism. This section deals with the main points of critique as expressed in academic literature, as well as by the Council of State 24 and in Parliament. 25
3.1 It is not always the law that causes delays
This point was already evident from a 2008 advisory report on the acceleration of decision-making on infrastructural projects, the Elverding Committee report. 26 Delays are often caused by a lack of administrative or political competence to reach a decision that receives wide support, often simply because the project is extremely complicated. The Council of State emphasises this: "[T]herefore, the way in which all stakeholders are involved in the decision-making process is of great importance. The role of legislation is limited when it comes to these types of problems". 27 The Council of State, in its advice on the CRA, argues that some delays can be solved by legislative measures, especially those aimed at resolving fragmented decisionmaking by various authorities. The Council points at initiatives already underway, such as the introduction of a new environmental permit (omgevingsvergunning) integrating a whole series of decisions in the field of environmental, planning and building law. It was this part of the advice of the Council of State that made the cabinet introduce the special provisions for residential construction projects into the CRA (an element that was not originally in the Bill).
24 In the Netherlands, the Council of State advises on all bills before they are sent to Parliament. For their advice on this Bill, see Tweede Kamer der Staten-Generaal 2009 http://bit.ly/azDLug.
25 In the Netherlands, bills have to be accepted by both Houses of Parliament, first by the more politically dominated Second Chamber and then by the First Chamber (the Senate), which focuses more on constitutional and other legal issues. Their reports are available at www.overheid.nl.
26 Advisory Committee Acceleration Decision-making Infrastructural Projects (Advies Commissie Versnelling Besluitvorming Infrastructurele Projecten, chaired by Mr Elverding), see Ministerie van Verkeer en Waterstaat 2008 http://bit.ly/iiASnH.
27 Tweede Kamer der Staten-Generaal 2009 http://bit.ly/azDLug 8.
Many authors argue that the CRA will ultimately not lead to a speedier process, but most likely to even further delays. 28 The reasons for this are threefold. Firstly, it is clear that the Bill was drafted in a hurry and many issues have not been properly thought through. As a consequence, new legal issues will arise from these rapid but fundamental changes that are brought about by the CRA. Secondly, the CRA itself often creates new legal complexities. Consider, for example, the many alterations of existing nature conservation law. Whereas the original Nature Conservation Act in 1998 began with a simple Article 19, there is now not just an Article 19a, 19b, 19c, etc, but even an Article 19ka, 19kb, 19kc, etc. Article 19kh, for example, has five sections of which Section 1 has six subsections, of which a subsection has two subsub-sections. Rules frequently have exemptions, which in turn are exempted (which is an exemption to an exemption to a rule). Thirdly, given the knowledge we now have of decision-making in complex situations, it is very likely that some of the amendments will be counterproductive. Decision-making on large projects requires time. The feasibility of the project has to be studied, alternatives have to be looked into (see further below), environmental and other impacts have to be studied, including possible side-effects, and, as already indicated, the involvement of stakeholders requires careful attention so as to achieve political and social acceptance.
3.2 The Crisis and Recovery Act curtails citizens' rights in legal procedures
The right to appeal is limited in various ways, as described above, especially through applying the relativity principle and thus limiting the arguments that appellants may bring forward. Firstly, interested persons who have standing are no longer allowed to have the entire decision reviewed. Even in instances in which they invoke only rules that are particularly meant to protect their interests, small illegalities can be glossed over, thus rendering their appeal virtually ineffective. Obviously, much depends on the manner in which the courts are to apply these new provisions. Both the question of whether a certain legal rule is meant to protect the interests of the
28 Interestingly, this point was made by most authors in the various thematic issues of Dutch law journals on the topic. These law journals approached a range of authors, each on a topic of their specific expertise (eg EIA, natural resources law, administrative procedure, building law, water law, etc). See particularly the thematic issues of M en R 2009/10 and TBR 2010/1.
individual or non-governmental organisation (NGO) involved and the question of whether the illegality is insignificant and can be ignored, leaves sufficient manoeuvrability for the courts. 29
The period within which individual citizens and NGOs have to study documentation and write an appeal also appears to be problematic. There are only six weeks provided for this. Given that large and complex projects are involved, six weeks appears to be a short time, especially in combination with the measure to no longer allow pro forma appeals. Interested and affected parties have to study documentation, consult with specialists if necessary, confer with others (for instance, with other inhabitants of the area who are affected by the decision, or with their lawyers), and document the legal complaints as correctly as possible because these cannot be changed or extended at a later stage.
3.3 Frequent potential infringements of international and European Union law
There are at least five elements in the CRA that conflict or may conflict, depending on the manner in which the provisions will be applied in practice, with international and EU law. Such a conflict is legally prohibited under the Constitution of the Kingdom of the Netherlands, 1815, 30 and under the EU Treaty. 31 As a consequence, courts will have to apply international or EU law directly rather than the CRA. The five conflicting elements are:
(a) making decisions against EU law is legally impossible;
(b) limiting public participation and access to justice may be contrary to the United Nations/Economic Commission for Europe Convention on Access to Information,
29 See extensively Schueler 2010 TBR 36–41.
30 Grondwet voor het Koninkrijk der Nederlanden of 24 August 1815 – hereafter Dutch Constitution. 31 A 94 of the Dutch Constitution states that national laws and regulations are not allowed to be contrary to binding international law. The new Treaty of Lisbon regulates in A 4(3) that member states have to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the treaties or resulting from the acts of the institutions of the Union. Since 1964, it is consistent case law of the EU Court of Justice that EU law has precedence over conflicting national law (Flaminio Costa v ENEL [1964] ECR 585 case 6/64).
Public Participation in Decision-making and Access to Justice in Environmental Matters 32 and EU directives implementing this convention;
(c) infringements of the EU EIA directive;
(d) infringements of the EU biodiversity directives; and
(e) infringements of the EU directives concerning environmental quality standards.
3.3.1 Making decisions against European Union law is legally impossible
Since it is legally impossible for any member state of the EU to make decisions that are contrary to EU law, two of the mechanisms to speed up decision-making in the CRA are illegal in cases to which they are applied in those instances in which EU law is applicable to the cases. Obviously, this is the case when illegalities are passed. Passing illegalities, even insignificant ones, is not possible when EU law is involved. Courts will therefore not be able to apply this provision when testing government decisions that relate to EU law. This will be so in most environmental cases because EU environmental regulation exists on practically all environmental topics. In addition, applying the lex silencio positivo principle will not be possible either, at least not in so far as it would lead to a decision that is contrary to EU law. The European Court of Justice has already judged, in a case against Belgium, that a system of tacit authorisation is contrary to a whole series of environmental laws. 33
3.3.2 Aarhus Convention and European Union directives implementing this convention
In testing the CRA against the literal wording of both the Aarhus Convention and the EU directives implementing this convention within the EU, 34 one could argue that the CRA does not impinge on the limits set by these documents. However, one could also argue the opposite. It all depends on whether one takes the convention literally or uses the spirit of the convention as a starting point. The Aarhus Convention, for instance, states that public participation procedures have to include reasonable timeframes allowing the public to prepare and participate effectively during the
32 38 ILM 517 1999 – hereafter Aarhus Convention.
33 ECJ 14 June 2001 Commission v Belgium ECJ 2001 I–4591 case C-230/00.
34 Especially Directive 2003/35/EC OJ 2003 L 156.
environmental decision-making. 35 As stated above, six weeks may, in complex cases, not be time enough to prepare thoroughly.
As far as access to justice is concerned, the Aarhus Convention allows national regulators to set criteria that have to be met in order for individual citizens and environmental NGOs to have standing. However, these criteria have to be consistent with the objective of giving the section of the "public concerned" wide access to justice. 36 The "public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making. Environmental NGOs are deemed to have an interest. 37 In taking these provisions literally, applying the "relativity" principle probably does not lead to an infringement. This, however, depends on the manner in which the courts are to test the principle. A very strict and narrow interpretation of the principle may lead to the situation in which people can invoke only those rules that are meant to protect personal interests, such as health and property. Since, according to its preamble, the Aarhus Convention is meant to preserve and improve the state of the environment and to ensure sustainable and environmentally sound development, such an application of the relativity principle would, in my view, be contrary to the Aarhus Convention. One can even wonder whether it is legitimate to reduce access to justice in environmental matters, since the entire convention concerns improving procedural rights in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. 38
3.3.3 European Union directive on environmental impact assessment
The EU EIA directive 39 does not explicitly require a scientific committee to be instituted. Again, however, the question arises whether abolishing such a committee once it exists is permissible, since the directive aims at having a reliable EIA system.
35 A 6(3) Aarhus Convention. A 2(3) and 3(4) of Directive 2003/35/EC OJ 2003 L 156 state the same.
36 A 9(2) Aarhus Convention.
37 A 2(5) Aarhus Convention.
38 A 1 Aarhus Convention.
39 Directive 85/337/EEC OJ 1985 L 175, as amended in 1997 and 2003.
Another point of discussion is whether the directive makes refraining from researching alternatives for the planned project a possibility. Assessing the consequences of the projects, looking into the consequences of potential alternatives, and comparing the environmental impact of all of these appear to be a basic feature of an EIA. 40 Still, the directive states only that an EIA has to include "[w]here appropriate, an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects". 41 In following this text literally, one could argue that once the developer refrains from searching for an alternative, the EIA can do without the assessment of alternatives as well. Although there is no relevant case law by the European Court of Justice on this issue yet, I assume that simply abolishing the need to assess the effects of alternatives is in conflict with the directive. 42 In the case of projects such as the ones listed in the CRA, it seems highly unlikely that one would not investigate possible alternatives, even should this only be for economic reasons (for example, the most economically viable route for a new road). If that is the case, then in my view, the EIA also has to include an assessment of the environmental impact of these alternatives. In addition, failing to investigate alternatives would probably rebound unpleasantly on those implementing the project because people would be able to argue in court that there was a far better alternative that should have been studied and that by not studying it the developers had not fulfilled their responsibilities. Since there is a general principle in administrative law that decisions have to be carefully prepared, this is a line of reasoning that may very well be successful in court. 43
40 Jesse Een Hernieuwd Perspectief analyses the literature on this issue. Examples are Yost "Administrative implementation of and judicial review under the National Environmental Policy Act" 14 (this is the "heart of the environmental statement") and Wood Environmental Impact Assessment.
41 Annex III para 2.
42 Similarly, Jesse Een Hernieuwd Perspectief 268–271. The opposite opinion is defended by Gundelach and Soppe 2010 TBR 23–34.
43 This principle is considered to be one of the most important administrative law principles and is codified in A 3:2 of the GALA.
3.3.4 European Union biodiversity directives
Just as in the above situations, the drafters of the CRA sought to eliminate legal provisions that are not strictly necessary from the point of view of EU law. Again, it must be concluded that they are walking on thin ice. Without going into too much detail, the CRA reduces everything to the minimum requirements of the EU Birds Directive 44 and the EU Habitats Directive 45 by following the literal wording of both directives as much as possible. However, this is a tricky thing to do, because the wording of the directives is necessarily of a rather general nature to leave room for the member states to find the most appropriate ways to implement the DIRECTIVES whilst achieving their goal of biodiversity conservation. Only regulating the bare minimum bears the risk that both the competent authorities and the project developers might interpret the wording of the law in a way that suits them, which was what was done by the drafters of the CRA. One example can be found in the explanatory memorandum that accompanies the Bill, in which it is suggested that "projects of national interest" might as well be regulated in the Natura 2000 site management plan. As a consequence, such a project no longer requires a permit under the Nature Conservation Act. The EU Habitats Directive indeed regulates in Article 6(3) that projects that are necessary for the management of a site are exempted from the approval procedure laid down in that provision, which procedure has been implemented in the Netherlands in the Nature Conservation Act. Whilst this may accord with the literal wording of the directive, it conflicts absolutely with the goal of the directive. The goal of the approval procedure of Article 6(3) is to have the consequences of projects assessed. Circumventing this procedure simply by putting projects into the site's management plan undermines the intentions of the directive. 46 Only if and to the extent that the decision-making process on the management plan meets the requirements of Article 6(3) can an infringement of the Habitats Directive be avoided. Given that a management plan is adopted for a period of six years and that it covers a wide range of activities, it is quite unlikely that the authorities, when adopting the site's management plan, would have all the necessary information to
44 Directive 2009/147/EC OJ 2010 L 20.
45 Directive 92/43/EEC OJ 1992 L 206.
46 Bastmeijer 2009 M en R 631.
assess the impact of every future project individually. It is therefore likely that infringements will occur.
The CRA also contains direct infringements against the Habitats Directive, which are independent of the manner in which the authorities apply the Act. An example thereof is the exemption of the deposition of nitrogen (from farms and traffic) from the Nature Conservation Act permit as described above. The Habitats Directive, in Article 6(3) does not allow any exemption, except when Section 4 is applied. Article 6(4), however, applies only in cases in which overriding public interests are at stake. There is no doubt that the economic interests of individual farmers do not qualify as such. Thus, the effect of nitrogen emissions from cattle farms on a nearby Natura 2000 site has to be assessed. Should the assessment demonstrate that there is a serious impact, the request for a permit has to be denied. In those regions of the country in which there are already extremely high nitrogen emissions, with a severe impact on Natura 2000 sites, this is not an unlikely scenario. Counting on the future effect on the nationwide reduction of nitrogen emissions of general policies still to be formulated is a far too optimistic approach that would definitely be rejected by courts testing against the EU Habitats Directive. 47
3.3.5 European Union directives concerning environmental quality standards
There are many EU environmental directives concerning environmental quality standards, particularly with regard to air and water. The CRA does make provision for a deviation from environmental quality standards that flow from EU law, so the CRA does not infringe on EU law in this respect. 48 However, depending on the way in which some of the rules of the CRA are implemented in practice, problems may arise. An example of such potential infringements can be found in the case of the experimental development areas. Generally, environmental quality standards have to be followed in individual cases, for instance, in granting a permit to an individual industrial installation under Article 9 of the EU Directive on Integrated Pollution Prevention and Control. 49 Not applying the standards at the individual level, but at
47 Veltman and Smits 2009 M en R 638–641.
48 See Klijn and Stam 2010 TBR 58.
49 Directive 2008/1/EC OJ 2008 L 24.
the regional level, such as would be the case in the experimental development areas, would therefore infringe EU law.
3.4 Reducing the level of environmental protection
The above sections make it clear that the CRA reduces the level of environmental protection in the Netherlands, both in instances of procedural safeguards and with respect to the substance. The first chapter of the Dutch Constitution, which contains fundamental rights, includes the proclamation of a right to environmental protection. Article 21 states that a duty to care for the environment rests with all authorities. This provision, therefore, is regarded as a socio-economic right, not as a classical individual right. As a consequence, courts are reluctant to test government decisions against Article 21. Until now, the constitutional right to environmental protection has had a rather "soft" legal status. In the explanatory memorandum that accompanies the Dutch Constitution and in the literature, it is argued that one of the functions of Article 21 is to prevent the government from reducing the standard of environmental protection. 50 On the contrary, the provision rather aims at a constant improvement of the environment through the enactment of progressive laws and policies. In my view, the current CRA does not safeguard such an approach and is therefore unconstitutional. Unfortunately, there is no constitutional court in the Netherlands with the power to test legislation against the Dutch Constitution.
4 Conclusion
The Dutch legislature has enacted the CRA in an attempt to combat the financial and economic crisis. The CRA is an example of "occasional" (ad hoc or impulsive) legislation. There is a pervading sense of urgency, which has enabled the legislature to implement innovations and amendments to existing legislation that have been pending for a long time. However, most of the issues dealt with in this legislation have not been fully thought through. Legal scholars predict that the many legal questions that will arise in implementing the CRA will slow down the implementation of projects rather than speed them up. The CRA conflicts frequently
50 Verschuuren 1994 Current Legal Theory 23–36 and Verschuuren 1994 RJE 339–347. This has not changed since.
with EU law. These conflicts will be discussed in court and not all such cases are likely to be decided in favour of the CRA.
The stakeholders in environmental matters are creative. They will find ways to defend their interests and pursue alternative legal pathways, thus obstructing decision-making that they regard as illegal. The CRA therefore arguably reduces citizens' rights solely to speed up decision-making.
The possibility of being careful is lost where it is needed most: in complex cases in which the stakes and environmental risks are high. A 2008 advisory report demonstrated that the success of projects largely depends on the preparatory phase. Careful research into the pros and cons of the project and into potential alternatives, advice given by various advisory bodies, consultations with all the relevant stakeholders (including local authorities, NGOs and individual residents) all contribute to the success of a project. 51 These are exactly the considerations and aspects that are limited in the CRA.
Nevertheless, the CRA does contain some interesting experiments, such as the designation of "development areas" and the introduction of "project decisions". These new instruments may lead to more integrated decision-making, hopefully without blinkered vision on the part of the competent authority. A positive 52 proposal is also to prevent government bodies from suing each other. In accordance with the principle of cooperative government, authorities should work together to serve the common good rather than fight each other. 53 In addition, the set of rules enabling a swift conversion from fossil fuel energy production to green energy production is a positive element of the CRA.
Do the positive effects of the CRA outweigh the negative ones? It is difficult to say at this point, since much depends on the manner in which the authorities will actually apply the CRA. Should they enthusiastically apply the CRA's full potential, the effect
51 Tweede Kamer der Staten-Generaal 2009 http://bit.ly/azDLug.
52 Some authors argue the opposite because they feel that decentralised authorities should be able to defend the interests of the people they represent in all possible ways, see De Vries 2010 TBR 65–70.
53 Note that this principle, as laid down in S 41(1) of the Constitution of the Republic of South Africa, 1996, is not known in any legal text in the Netherlands.
in sum will be negative from an environmental point of view. The CRA will help the economy to recover, but then again, the economy, if left to its own devices, would probably do so anyway, and the CRA will only induce a crisis in the legal system. In my view, the CRA will not contribute to sustainable development.
Bibliography
Bastmeijer 2009 M en R
Bastmeijer CJ "Natuurbeschermingsrecht in crisistijd" 2009 M en R 35(10) 628– 633.
De Vries 2010 TBR
De Vries HJ "Beperking van het beroepsrecht van de decentrale overheden in de Crisis- en herstelwet: Niet doen!" 2010 TBR 1 65–70
Gundelach and Soppe 2010 TBR
Gundelach J and Soppe MAA "De betekenis van de Crisis- en herstelwet voor de m.e.r." 2010 TBR 1 23–34
Jesse Een Hernieuwd Perspectief
Jesse KD Een Hernieuwd Perspectief op Milieueffectrapportage (PhD thesis Tilburg University 2008)
Klijn and Stam 2010 TBR
Klijn AR and Stam HAH "Gebieds- en innovatie-experimenten in de Crisis- en Herstelwet" 2010 TBR 1 56–64
Nijmeijer TBR
Nijmeijer AGA "Tijdelijk afwijken van milieukwaliteitsnormen. (Geen) zorgen voor morgen?" 2010 TBR 1 42–49
Schueler 2010 TBR
Schueler BJ "De relativiteitseis: Sneller of beter?" 2010 TBR 1 35–41
Veltman and Smits M en R
Veltman J and Smits G "De voorgestelde regeling van stikstofdepositie in de Crisis- en Herstelwet" 2009 M en R 35(10) 638–641
Verschuuren 1994 Current Legal Theory
Verschuuren J "The constitutional right to environmental protection" 1994 Current Legal Theory XII(2) 23–36
Verschuuren 1994 RJE
Verschuuren J "The constitutional right to protection of the environment in the Netherlands" 1994 RJE 4 339–347
WoodEnvironmental Impact Assessment
Wood C Environmental Impact Assessment: A Comparative Review 2 nd ed (Pearson Harlow 2003)
Yost "Administrative implementation of and judicial review under the National Environmental Policy Act"
Yost NC "Administrative implementation of and judicial review under the National Environmental Policy Act" in Novick SM (ed) Law of Environmental Protection Volume 2 (Clark Boardman Callaghan New York 1987) 1–48
Register of legislation
Dutch legislation
Algemene Wet Bestuursrecht of 4 June 1992
Crisis- en Herstelwet of 18 March 2010
Elektriciteitswet 1998 of 2 July 1998
Grondwet voor het Koninkrijk der Nederlanden of 24 August 1815
Natuurbeschermingswet 1998of 25 May 1998
Wet Ruimtelijke Ordening of 20 October 2006
European legislation
Convention on Access to Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters of 25 June 1998 38 ILM 517 1999
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment
OJ1985 L 175 40–48
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora
OJ1992 L 206 7–50
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003
providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public
participation and access to justice Council Directives 85/337/EEC and 96/61/EC
OJ2003 L 156 17–24
Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control OJ 2008 L 24 8–29 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds OJ 2010 L 20 7–25
South African legislation
Constitution of the Republic of South Africa, 1996
Register of international agreements
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community Lisbon 13 Dec 2007
Register of cases
Commission v Belgium ECJ 2001 I–4591 case C-230/00
Flaminio Costa v ENEL [1964] ECR 585 case 6/64
Register of Internet sources
Staatsblad 2010 Regels met betrekking tot versnelde ontwikkeling en verwezenlijking van ruimtelijke en infrastructurele projecten (Crisis- en Herstelwet) Government Gazette 2010, 135
Ministerie van Verkeer en Waterstaat 2008 http://bit.ly/iiASnH
Ministerie van Verkeer en Waterstaat Advies Commissie Versnelling Besluitvorming Infrastructurele Projecten 2008 Sneller en beter http://bit.ly/iiASnH [date of use 25 Jan 2011]
Tweede Kamer der Staten-Generaal 2009 http://bit.ly/azDLug
Tweede Kamer der Staten-Generaal 2009 Regels met betrekking tot versnelde ontwikkeling en verwezenlijking van ruimtelijke en infrastructurele projecten (Crisis- en Herstelwet) Parliamentary documents 2 32 127 http://bit.ly/azDLug [date of use 25 Jan 2011]
List of abbreviations
CRA
Crisis and Recovery Act
EIA
Environmental impact assessment
GALA
General Administrative Law Act
M en R
Milieu en Recht
OJ
Official Journal
RJE
Revue Juridique de l'Environnement
TBR
Tijdschrift voor Bouwrecht
THE DUTCH CRISIS AND RECOVERY ACT: ECONOMIC RECOVERY AND LEGAL CRISIS?
J Verschuuren
Summary
In the Netherlands, the 2010 Crisis and Recovery Act aims at speeding up decisionmaking on a wide variety of activities, hoping that after the financial and economic crisis has passed, development projects can immediately be carried out without any delay caused by legal procedures in court or elsewhere. The Act meets great criticism for many reasons: it allegedly curtails citizen's procedural rights because it focuses almost exclusively on environmental standards as "obstructing" standards that need to be removed, and it infringes international and European Union law. In this note, the legal critique on the Act is analysed. The conclusion is that the sense of urgency surrounding the design of legal measures to address the economic crisis enables the legislature to implement innovations and long-time pending amendments to existing legislation. Most issues have however not been fully or properly considered. Many legal questions will arise when implementing the Act, which will retard rather than expedite projects. It is difficult to predict whether the positive effects of the Crisis and Recovery Act would outweigh the negative aspects. Much depends on the manner in which the authorities will actually apply the Act. Should they implement the Act to its full potential, the effect of the Act in sum will be negative. In that case, the Act may help the economy to recover, but it will bring about a crisis in the legal system. It will, in all probability, also not contribute to sustainable development.
Jonathan Verschuuren. MA LLM PhD (Tilburg University). Professor of International and European Environmental Law, Tilburg University, Netherlands, and Extraordinary Professor of Law, Faculty of Law, North-West University, South Africa (email@example.com). The article is based on a paper presented at an HL Swanepoel Lecture at the Faculty of Law, North-West University, in March 2010.
Keywords
Environment; economic crisis; deregulation; public participation; access to justice; participatory rights; citizens' rights; ad hoc legislation; environmental law; environmental protection; sustainable development.
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1
A guide to
THE WELL IDENTIFICATION PROGRAM
State of Oregon Water Resources Department
November 2008
Access Port
Wells must have a port to allow access to the well hole for measuring static water level.
To Water Delivery System
Well Identification Number
2
Top Terminal Height
The well head must be capped and must extend at least one foot above finished ground surface or pump- house floor.
Well Seal
The seal prevents surface water from entering the well. The well must be sealed to at least 18 feet or 5 Feet into a consolidated layer, whichever is greater
Sands and Gravels
Water Bearing Sands and Gravels
Impermeable Layer
Water cannot penetrate this layer
which prevents the upper aquifer
from commingling with or
contaminating the lower aquifer.
Sealing the well below this point is
required to prevent commingling.
Casing
The casing supports the sides of the
well and prevents the well hole from
caving.
Non Water-Bearing Conglomerates
Static Water Level
The stabilized level or elevation
of water surface in a well not
being pumped.
Perforations
Holes in the casing allow water to
enter the well.
Riser Pipe and Pump Wiring
Water-Bearing Zone
Pump
Sometimes the pump is mounted on the top of the well. Generally, domestic wells use submersible pumps.
This booklet provides general information about Oregon's Well Identification Program.
Requirements
The Well Identification (ID) Number is an unique number that links a well with a paper record. All wells drilled, deepened, converted or altered after 1996 are required to be tagged with a Well ID Number. On wells without a Well ID Number, the owner of the property is required to obtain one at the time of property transfer. The Well ID Number may be used to track modifications to the well over time. A Well ID Number may be obtained by completing an "Application for Well ID Number".
How to Apply
Send a completed "Application for Well ID Number" to the Water Resources Department. The Application is available on the Department's website www.wrd.state.or.us or by calling (503) 986-0854.
Completing the Application:
■ Owner Information Section: Print current owner information here. If the Well ID Number should be sent to someone other than the applicant, note that in this section.
■ Well Information Section: Location information may be obtained from property tax statements, legal description of the property on the deed, or from the County Assessor's Office. Some counties may refer to this as the "Map and Tax Lot Number".
■ General Well Information Section: Provide as much information as possible. This may assist the Department in locating a well report for the well in question. If you have a well report for the well, attach it to the application when you submit it.
Water Well Reports (Well Logs)
Well logs are prepared by a well driller and describe how a well was constructed. The Department has well logs for most of the water wells drilled in Oregon since 1955. Well logs are available on the Department's website: www.wrd.state.or.us
The location by legal description (Township, Range, and Section) is the key information need to locate well log reports. In addition, the name of the landowner who owned the property when the well was drilled is usually necessary.
TIPS FOR LOCATING WELL LOGS
■ Contact the appropriate County Assessor's Office to obtain the property Township, Range, and Section.
■ Go the Department's website and click on "Find a Well Log".
■ If you do not have the Township, Range, and Section, you may click "Find T-R-S by Address". Type in the complete address of the property in the "Address" box, then click "Lookup".
■ For best results, initially enter ONLY the Township, Range, and Section for the property at the "Well Log Query Application" screen. Use additional search criteria to narrow down your search if you receive too many results.
■ Click the "Search" button. The query will display all well logs within the search criteria selected.
■ To sort data within the well log query, click a column heading.
■ To view the image of the well log, click the county and number under the "Well Log" column heading.
■ To print the image of the well log, select "file", "print" and "OK".
■ If you cannot find a well log by location, try searching by "County" and "Owner Last Name" only. This will bring up all the wells in that county with that last name, regardless of Township, Range, and Section.
■ The street address and tax lot number of the well may not always be included on well logs, especially older wells. Other information that can be helpful when attempting to locate a well log include:
■ Identifying the property owner or property developer at the time the well was originally drilled;
■ The date the well was drilled or the date the home was constructed;
■ The well driller.
If you have further questions, contact the Department at email@example.com or by phone at (503) 9860900.
Frequently Asked Questions
Q. What is the legal basis for the program?
A. Oregon Revised Statutes 537.788 to ORS 537.793.
Q. What is the purpose of the program?
A. The purpose is to identify each well with a unique Well ID Number. This number links the well with a well report (well log), which is a physical description of how the well was constructed.
Q. What types of wells are bound by this program?
A. All water supply wells, including monitoring wells.
Q. If my well does not have a Well ID Number, Should I apply for one now or wait until the property changes ownership?
A. You have the choice to apply for a Well ID Number now or you may wait until the property changes ownership.
Q. I share a well and the well is on the neighboring property. Do I apply for a Well ID Number when I sell my property?
A. No. The owner of the property where the well is located is responsible to obtain a Well ID Number when that property changes ownership.
Q. When property changes ownership who is responsible for initiating the process?
A. The current landowner, either agent, or the buyer may apply for the Well ID Number. Applying for a Well ID Number should not affect closing property transfers.
Q. Do I need to apply for a new Well ID Number if my well already has one?
A. No. Only one Well ID Number is required for the life of the well.
Q. What if a Well ID Number is damaged or removed and lost?
A. A new application may be submitted for a replacement number.
Q. What is a "Well Report" or "Well Log"?
A. A well report or well log is a physical description of how the well was constructed. The Department maintains a database of wells constructed in the state since approximately 1955.
Q. Does the Water Resources Department verify well construction during this process?
A. The Department does not review the well construction prior to the issuance of a Well ID Number. However, as part of the Department's Well Construction Program, a percentage of new wells are routinely inspected during construction. If you have specific problems or concerns about your well, please contact the Department directly.
Q. What is the cost to obtain a Well ID Number?
A. There is no cost to obtain a Well ID Number.
Common Well Terms
ACCESS PORT -— All wells must have a 1/2" access port for measuring the water level or a pressure gauge for measuring artesian pressure. The access port must be unobstructed. The access port should be capped to prevent surface water from entering the well casing.
COMMINGLING — Occurs when a well draws water from more than one aquifer. In no case shall a well be constructed to tap into multiple aquifers.
PERFORATIONS -— Holes in the casing or liner, which allow water to enter the well.
SPECIAL STANDARDS -— A special standard allows deviation from the minimum well construction standards. The request must be approved before completing the work.
STATIC WATER LEVEL -— The stabilized level or elevation of water surface in a well when it is not being pumped.
TOP TERMINAL HEIGHT -— The casing of any well must extend at least 12 inches above the finished ground surface or pumphouse floor, and 12 inches above the local surface runoff level.
WELL CASING — Steel or plastic pipe installed to prevent the borehole wall from caving in. Well casing is also used to seal the upper portion of the well. The total length of casing used should be the same as that recorded on the well log.
WELL DEPTH — The depth of a well from land surface to the bottom of the well. This may be measured by using a weighted line.
WELL DEVELOPMENT — Involves vigorously pumping the well to help clean out drill cuttings and to maximize production of the well. Development should result in a well which produces sand-free or mud-free water when operated properly.
WELL IDENTIFICATION NUMBER -— A preprinted stainless steel label attached to the well casing. This unique number identifies your well and will be used to track any future modifications to the well. Please do not remove or cover this number.
WELL LOG -— A well log or well report is a physical description of how your well was constructed. Keep your copy of the well log. This is one of the more important records of your property.
WELL SEAL -— The space between the borehole wall and the casing, which is filled with approved sealing material to prevent commingling or contamination of the aquifer. A proper seal consists of neat cement (cement and water) or bentonite (dry clay) and extends from the ground surface to a minimum depth of 18 feet below land surface or 5 feet into a consolidated formation, whichever is greater. Artesian wells must be sealed 5 feet into the confining formation immediately overlying the artesian zone.
WELL TEST -— A well test shows how much water the well produces. The static water level, the date, the type of well test, and the length of the test period are recorded on the well log. A one-hour minimum yield test is required when the work is completed on the well.
Well Placement
The Department has established rules to define well placement. Before siting a well, check the following:
■ The Well Construction Standards require a minimum distance of 50 feet from septic tanks and 100 feet from sewage disposal areas (such as drain fields). Soil type and topography in your area may require greater distances.
■ Wells should be located at least five feet from buildings to allow access for maintenance, repair, testing, redrilling or pump work.
■ Locate the well away from sources of contamination such as stock yards, storm sewers, privies and refuse dumps.
■ Run surface drainage away from the well on all sides; divert up-slope drainage away from hillside wells using berms or trenches.
■ Locate the well above (higher in grade) disposal areas if possible.
■ Locate the well in an area free from flooding or plan extra precautions to protect it.
■ Site your well as far as possible from neighboring wells. When wells are close together, they may interfere with each other.
■ Site your well a safe distance from your property line. This may prevent difficulties with neighboring septic systems and boundary line inaccuracies.
■ When drilling in areas where underground utilities are located, two business days notice is required by law. Call the Oregon Utility Notification Center at (800) 332-2344.
■ If conditions allow, locate the well near where you will use the water and near a power source.
■ Contact your county health and planning departments for additional well location and permit requirements before you drill.
Estimating Your Water Needs
The following guide will help you determine your peak demand. To determine your estimated daily peak water demand (not including irrigation), add the quantities of water that apply.
Some domestic water systems are designed to store water during times of low demand (such as night time). This stored water may be used later to supply water during peak demand (early morning, laundry, or outside watering). A pump installer or plumbing contractor may assist you in planning a water system based on your water needs and water source. In contrast to a domestic well, an irrigation well must be able to produce water at a steady high rate for extended periods of time. Irrigation systems should be designed to minimize pumping costs and prevent excessive drawdown of the well.
Obtaining Water Rights
Under Oregon law, all ground water is considered a public resource. In general, a water right permit must be obtained before using water from any well.
The following uses of ground water do not require making application for a water right permit:
■ Group and single-family domestic use up to 15,000 gallons per day.
■ Stock watering.
■ Watering any lawn and/or non-commercial garden totaling one-half acre or less in area.
■ Down-hole heat exchangers.
■ Any single industrial or commercial development up to 5,000 gallons per day.
These exempted uses are on a per-property or perdevelopment basis and cannot be increased. For example, you cannot double the amount exempted by adding a second well.
If you have questions regarding your ground water use and the requirement to obtain a water right permit, contact the Department's Customer Service Group at (503) 986-0801.
Some Oregon counties may also require permits for certain developments. Contact your county government for additional information.
Well Construction Standards
Oregon's Well Construction Standards are rules designed to protect the ground water resource and the public by preventing contamination of the aquifer.
When the minimum construction standards cannot be met, the person responsible for drilling, altering, or abandoning the well must make application for a "special standard" from the Department. A special standard allows deviation from the minimum well construction standards. The request must be approved before completing the work.
Additional Information
Oregon Water Resources Department 725 Summer Street NE, Suite A Salem, Oregon 97301-1266
Tel: (503) 986-0900
Fax: (503) 986-0902
Web: www.wrd.state.or.us
Department of Human Services Drinking Water Program 800 NE Oregon Street, Suite 611 Portland, Oregon 97232-2162
Tel: (971) 673-0405
Web: www.oregon.gov/DHS/ph/dwp/
Oregon Utilities Notification Center 305 NE 102nd AVE, Suite 300 Portland, OR 97220
Tel: (800) 332-2344
Web: www.digsafelyoregon.com
County Assessor Offices
Baker County (541) 523-8203 1995 3rd St Baker City OR 97814
Harney County (541) 573-2246 450 N Buena vista Burns OR 97720
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Research Update:
Bertelsmann Ratings Affirmed At 'BBB/A-2' On Expectation Of Strong Earnings And Continued Investments; Outlook Stable Bertelsmann Ratings Affirmed At 'BBB/A-2' On Expectation Of Strong Earnings And Continued Investments; Outlook Stable
April 26, 2022
Rating Action Overview
- Germany-based international media group Bertelsmann SE & Co. KGaA reported strong operating performance in 2021, with organic growth of 11.4% from 2020, improved EBITDA margin, and adjusted leverage reduced to 1.1x.
- We expect Bertelsmann to continue to report strong growth, with its adjusted leverage forecast to remain at about 1.7x-2.0x in 2022-2023. At the same time, we understand that the group's current low leverage is below its medium-term financial policy guidance and think that it could utilize its financial flexibility to invest in organic business growth and acquisitions.
- We affirmed our 'BBB/A-2' issuer credit ratings (ICRs) on Bertelsmann, as well as our 'BBB' and 'BB+' ratings on the group's senior unsecured and hybrid debt, respectively.
- The stable outlook reflects our view that Bertelsmann will maintain adjusted EBITDA margins slightly above 15% and adjusted leverage below 2.5x in 2022 and 2023. This incorporates our assumption that the group will use its existing financial flexibility to invest in growth and to increase shareholder distributions, which could translate into higher leverage compared with our base case.
Rating Action Rationale
In 2021 Bertelsmann achieved stronger operating performance than we had expected. The group's revenue increased organically by 11.4% from 2020. This reflected a strong recovery in advertising revenue at broadcaster RTL Group (+13.5% organic growth) and content production, along with the solid performance of Arvato's services businesses (+16.8% organic growth). Its publishing business Penguin Random House (PRH) grew by 7.3% organically with the growth of audiobooks and printed books offsetting the reduction in e-books following a strong demand that emerged during the COVID-19 pandemic. The strong recovery in revenues and continued discipline in managing costs helped increase the group's S&P Global Ratings-adjusted EBITDA margins to
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15.5% from 15.1% in 2020, despite a €170 million investment into its German cross-media streaming and entertainment platform RTL+ in 2021.
Leverage remains well below our expectations, leaving Bertelsmann with ample financial flexibility for the 'BBB' rating. Bertelsmann also completed the IPO of its customer services provider Majorel in September 2021, which generated €330 million of cash proceeds. The planned acquisition of Simon and Schuster (S&S) for a total consideration of $2.175 billion did not complete in 2021 as we had previously expected because of a lawsuit from the U.S. Department of Justice. As a result, the group has accumulated €4.6 billion of cash on balance and its S&P Global Ratings-adjusted leverage reduced to 1.1x in 2021--or 1.3x on a company-adjusted basis--from 1.8x in 2020, well below our expectations and its financial policy target guidance.
We anticipate in 2022-2023 Bertelsmann will maintain robust organic revenue growth exceeding 5% and sound profitability despite strategic investments. We think its core businesses such as outsourcing services Arvato, book publisher PRH, and music publisher BMG will continue to benefit from strong fundamentals in their respective industries and their strong market positions. Within RTL Group, we expect modest growth at linear TV broadcasters RTL Deutschland, RTL Netherlands, and M6 (which we continue consolidating as the merger with TF1 awaits regulatory approval) and solid growth at Fremantle production studios that will benefit from the strong global demand for content. This should help offset the structural decline in Bertelsmann Printing Group's rotogravure and offset markets, where revenue declined organically by 5.5% in 2021.
Bertelsmann will continue to face structural challenges such as audience fragmentation and migration from traditional media consumption and linear television to predominantly online, user-directed, on-demand video viewing. This will require additional investment in content and its digital distribution technologies, primarily in RTL Group. Bertelsmann plans to invest €5 billion to €7 billion across its businesses by 2025, including approximately €250 million to be invested into its streaming platform RTL+ in 2022. We think this will constrain the group's profitability and expect its adjusted EBITDA margin to remain at about 15.0%-16% in 2022-2023, in line with 15.5% in 2021. Efficiency improvements underpinned by synergies between Bertelsmann's different businesses, such as the recent integration of Gruner + Jahr's German magazine and publishing brands into RTL Deutschland will continue to support margins.
In our view, Bertelsmann's financial policy allows it to increase leverage beyond our base case, which constrains our rating on the group at 'BBB'. We assume the group will ramp up investments in organic business growth and mergers and acquisitions (M&A) in 2022-2023, and could distribute higher shareholder returns, including a modest increase in dividends in 2022. Hence, we expect that following the very low 1.1x S&P Global Ratings-adjusted leverage achieved at the end of 2021, Bertelsmann's adjusted leverage will increase to about 1.7x-2.0x in the next two years.
Bertelsmann's forecasted leverage will likely remain materially below its medium term leverage guidance. The guidance assumes a maximum company-adjusted leverage of up to 2.5x, which translates into about 2.3x S&P Global Ratings-adjusted debt to EBITDA. Given that the group plans significant capital investment, it is uncertain whether and when the S&S acquisition and TF1/M6 merger could complete, and the group has not committed to a stricter financial policy that would assume maintaining lower leverage, our rating remains at 'BBB' despite our forecast of adjusted credit metrics slightly below our upgrade threshold of 2x. At the same time, Bertelsmann has ample financial flexibility and leeway for funding growth initiatives under the current 'BBB' rating.
Bertelsmann's recent acquisition strategy has enabled it to diversify away from advertising-dependent revenue streams. Bertelsmann invested in and successfully repositioned its previously challenged business segments, which we think will support its continued solid operating performance over the next few years and make it more resilient to macroeconomic changes. In particular, we expect the music, education, outsourcing services, and publishing businesses (together generating about 65% of group revenue in 2021) to support growth. The acquisition of U.S. publisher S&S, along with the proposed merger between France-based broadcaster M6 (of which Bertelsmann owns 48.3% through RTL) and TF1 will foster resilience of its operations.
Outlook
The stable outlook reflects our view that over the next 24 months Bertelsmann will achieve solid organic revenue growth and maintain adjusted EBITDA margins slightly above 15% and adjusted leverage below 2.5x. This incorporates our assumption that the group will use its existing financial flexibility to invest in growth and to increase shareholder distributions. While we forecast S&P Global Ratings-adjusted leverage to remain in the 1.7x-2.0x range over the next two years, the rating and outlook consider some uncertainty around several large M&A and disposal transactions completing as planned, and our view that the group's current financial policy allows for higher leverage compared with our base case.
Upside scenario
We could upgrade Bertelsmann if it performs in line with our base case and absorbs ramp-up costs associated with its streaming businesses, such that it maintains solid adjusted EBITDA margins and cash flows, and commits to a financial policy that would, in our view, support S&P Global Ratings-adjusted leverage sustainably below 2x.
Downside scenario
We could lower the rating over the next 24 months if Bertelsmann's adjusted leverage increases above 3x, for example if:
- Its organic revenue growth and profitability weakens due to weaker macroeconomic conditions or an inability to adjust its business to intensifying structural challenges; or
- It pursues large debt-funded acquisitions, increases investments, or shareholder remuneration beyond what we incorporate in our base case, leading to leverage exceeding its current financial policy target guidance.
Company Description
Germany-based Bertelsmann is a diversified global media group with €18.7 billion of revenue and €2.9 billion adjusted EBITDA in 2021. It operates through several business units, including broadcaster RTL Group that has merged with magazine publisher Gruner + Jahr and includes broadcasters RTL Germany and Netherlands, book publisher PRH, music publisher BMG,
media-related and outsourcing services Arvato, Bertelsmann Printing Group, Bertelsmann Education Group, and Bertelsmann Investments.
Bertelsmann is a privately held partnership limited by shares and ultimately controlled by the Mohn family. Three foundations (Bertelsmann Stiftung, Reinhard Mohn Stiftung, and BVG-Stiftung) indirectly hold 80.9% of Bertelsmann, with the remaining 19.1% held indirectly by the Mohn family.
Our Base-Case Scenario
Assumptions
- Eurozone real GDP to increase by 3.3% in 2022 and 2.8% in 2023; U.S. real GDP to expand by 3.2% in 2022 and 2.1% in 2023.
- Bertelsmann's organic revenue growth of about 5.3% in 2022, and 4.4% in 2023. This reflects the solid growth dynamics in its core businesses such as outsourcing services Arvato, publishing house PRH, and music publisher BMG which should help reduce the effects of a secular decline in Bertelsmann Printing Group's rotogravure and offset markets.
- We assume the acquisition of S&S will close by the end of 2022 and incorporate it in our 2023 forecast, assuming incremental revenues of €0.9 billion and a pro forma EBITDA contribution of about €160 million. We expect the integration of S&S to provide cost synergies and a healthy pipeline of new book titles that will support ongoing growth in publishing and the group's profitability.
- Within RTL Group, we expect modest growth at linear TV broadcasters RTL Deutschland, RTL Netherlands, and M6 (which we continue consolidating) and solid growth at Fremantle that will benefit from the strong global demand for content.
- We have not yet factored into our base case the proposed combination of M6 with TF1 as the deal awaits regulatory approval and the ultimate operating perimeter of the combined group post-merger remains uncertain.
- Adjusted EBITDA margin of 15.0%-15.5% in 2022 and 15.0%-16.5% in 2023, compared with 15.5% in 2021. This reflects our expectation of sustained organic growth, synergies, and cost efficiencies across different segments, that will be partly offset by cost inflation and investments in its content production and streaming business.
- Capex of €750 million in 2022 and up to €950 million in 2022 and 2023. These discretionary initiatives may be in the form of growth capex or music library acquisitions at the BMG level.
- Acquisitions of about €2.3 billion in 2022, including the $2.2 billion (€1.8 billion) acquisition of U.S. publisher S&S that could be approved by the end of 2022. In 2023 we assume spending on acquisitions of up to €650 million.
- Asset disposals of €300 million in 2022 from the sale of RTL Belgium and RTL Croatia.
- Annual working capital outflows of about €100 million.
- Dividends of about €480 million in 2022, slightly up from €410 million paid in 2021, and €430 million going forward.
Key metrics
Bertelsmann SE & Co. KGaA--Key Metrics*
--Fiscal year ended Dec. 31--
*All figures adjusted by S&P Global Ratings. a--Actual. f--Forecast. FOCF--Free operating cash flow. DCF--Discretionary cash flow.
Liquidity
We view Bertelsmann's liquidity as strong because we expect sources of liquidity will exceed uses by about 1.9x over the next 12 months. The group benefits from sufficient committed credit facilities, a large cash balance, and our expectation of continued positive free cash flow generation. We also consider that Bertelsmann has a strong relationship with banks and high standing in the credit markets.
Principal liquidity sources
- Our assumption of unrestricted cash on balance of €4.5 billion as of March 31, 2022;
- Fully undrawn €1.2 billion revolving credit facility (RCF) due in 2026;
- Our forecast of cash funds from operations of €1.6 billion-€1.8 billion; and
- €300 million proceeds from the RTL Belgium and RTL Croatia disposals.
Principal liquidity uses
- Debt maturities of about €695 million;
- Seasonal and structural working capital outflow of up to €250 million;
- Capex of approximately €750 million;
- Dividends of about €430 million; and
- Contracted acquisitions of €1.8 billion, considering the acquisition of S&S that we assume could close by the end of 2022.
Environmental, Social, And Governance
ESG credit indicators: E-2, S-2, G-2
ESG factors have an overall neutral influence on our credit rating analysis of Bertelsmann. We factor in management's good track record of strategic planning and execution, including effective monitoring and managing of social risks that media companies are facing.
Issue Ratings - Subordination Risk Analysis
Capital structure
Almost all debt of the group is unsecured and is issued at the Bertelsmann SE & Co. KGaA level. All senior notes rank pari passu and are senior to the €413 million debt-like profit participation notes and the group's €1.3 billion hybrid capital, which is also issued at the parent level.
Analytical conclusions
There is no structural or contractual subordination and we therefore rate the senior unsecured debt at 'BBB', the same level as our ICR on Bertelsmann. The hybrid capital is rated 'BB+', two notches below our ICR, due to:
- Its subordination in the capital structure; and
- The payment flexibility, reflecting that the deferral of interest on the notes is optional.
Ratings Score Snapshot
Ratings Score Snapshot
Ratings Score Snapshot (cont.)
Related Criteria
- General Criteria: Environmental, Social, And Governance Principles In Credit Ratings, Oct. 10, 2021
- General Criteria: Group Rating Methodology, July 1, 2019
- General Criteria: Hybrid Capital: Methodology And Assumptions, July 1, 2019
- Criteria | Corporates | General: Corporate Methodology: Ratios And Adjustments, April 1, 2019
- General Criteria: Methodology For Linking Long-Term And Short-Term Ratings, April 7, 2017
- Criteria | Corporates | General: Methodology And Assumptions: Liquidity Descriptors For Global Corporate Issuers, Dec. 16, 2014
- Criteria | Corporates | General: Corporate Methodology, Nov. 19, 2013
- General Criteria: Country Risk Assessment Methodology And Assumptions, Nov. 19, 2013
- General Criteria: Methodology: Industry Risk, Nov. 19, 2013
- General Criteria: Methodology: Management And Governance Credit Factors For Corporate Entities, Nov. 13, 2012
- General Criteria: Principles Of Credit Ratings, Feb. 16, 2011
Related Research
- U.S., Canadian, And European Telecom, Media, And Cable Majors Ranking: January 2022, Jan. 10, 2022
- Bertelsmann SE & Co. KGaA, Aug. 31, 2021
Ratings List
Ratings Affirmed
Certain terms used in this report, particularly certain adjectives used to express our view on rating relevant factors, have specific meanings ascribed to them in our criteria, and should therefore be read in conjunction with such
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Simple and Efficient Synthesis of 2,7-Difunctionalized-1,8Naphthyridines
Shyamaprosad Goswami * , Reshmi Mukherjee, Rakhi Mukherjee, Subrata Jana, Annada C. Maity, and Avijit Kumar Adak
Department of Chemistry, Bengal Engineering and Science University, Shibpur, Howrah-711 103, West Bengal, India. Fax: (+91)-33-26682916.
* Author to whom correspondence should be addressed. E-mail: email@example.com
Received: 25 August 2004; in revised form: 23 November 2004 / Accepted: 6 January 2005 / Published: 31 August 2005
Abstract: The syntheses in good yields of some new difunctionalized 1,8-naphthyridines 4, 6, 8 and 9 and a novel triethylene glycol ether-linked dinaphthyridine, 10a, along with the mononaphthyridine-linked ether alcohol 10b are described. An improved and milder method for the synthesis of 2,7-diamino-1,8-naphthyridine (14) is also reported.
Keywords: Naphthyridines, 2,7-difunctionalized-1,8-naphthyridines, 2,7-diamino-1,8naphthyridine.
Introduction
Naphthyridine or naphthyridone systems are of great importance due to their broad spectrum of biological activities. Substituted 1,8-naphthyridine compounds are used as antihypertensives, antiarrhythmics, herbicide safeners and also as immunostimulants [1-3]. We are interested in 2,7-difunctionalized-1,8-naphthyridines because of their aforesaid potential medicinal activity as well as for their use as important binding units in the molecular design of synthetic receptors [4]. This communication describes the first synthesis of four 2,7-difunctionalized-1,8-naphthyridines; viz. 2amino-7-hydroxymethyl-1,8-naphthyridine (5), 2-amino-1,8-naphthyridine-7-carboxaldehyde (6), 2,7dimethyl-4-methoxy-1,8-naphthyridine (8) and 4-methoxy-1,8-naphthyridine-2,7-dicarboxaldehyde (9) and a novel triethylene glycol ether-linked dinaphthyridine compound, 1,2-bis-[2-(2,7-dimethyl-1,8naphthyridin-4-yloxy)ethoxy]ethane (10a) along with the mononaphthyridine-linked ether alcohol (10b). A new synthesis of 2,7-diamino-1,8-naphthyridine 14 by a more efficient reaction under milder conditions is also reported here.
Results and Discussion
Naphthyridines 2-6 were synthesized starting from 2-amino-7-methylnaphthyridine (1), which is obtained by the condensation of commercially available 2,6-diaminopyridine and 3-oxo-butyraldehyde dimethyl acetal following a reported procedure [5]. The 7-methyl group of 2-acetylamino-7-methyl1,8-naphthyridine (2) is oxidized with selenium dioxide in dioxane to the corresponding aldehyde 3, followed by deprotection of the N-acetyl group by hydrolysis with 1N hydrochloric acid, which afforded the desired 2-amino-1,8-naphthyridine-7-carboxaldehyde (6) in 85% yield (Scheme 1).
Scheme 1.
OH
Reagents, conditions and yields: (i) acetic anhydride, 80ºC, 12h., 87%. (ii) SeO2, dioxane, 50-55ºC, 4h., 75%. (iii) 1N HCl, reflux, 0.5h., 85%. (iv) NaBH4, dry THF, 3-4h, 85%. (v) 1N NaOH, r.t.,12h., 80%.
The conversion of aldehyde 3 into 2-amino-7-hydroxymethyl-1,8-naphthyridine (5) was achieved by sodium borohydride reduction of the former to give 2-acetylamino-7-hydroxymethyl-1,8naphthyridine (4), followed by mild alkaline hydrolysis (1N NaOH).
Compound 8 is made in excellent yield (95%) starting from 4-chloro-2,7-dimethyl-1,8naphthyridine (7) [6] by stirring at room temperature with methanolic potassium hydroxide. Compound 8 is then oxidized with SeO2 in dioxane at room temperature to produce 4-methoxy-1,8naphthyridine-2,7-dicarboxaldehyde (9) in 90% yield. The synthesis of the novel di- and mononaphthyridines 10a-b with triglycol spacers is achieved by substitution of the chlorine atom by both two as well as only one of the hydroxyl functions of triethylene glycol, respectively (Scheme 2).
Scheme 2.
Reagents, conditions and yields: (i) Triethylene glycol, KOH, THF, 60ºC, 80%.
(ii) MeOH, KOH, 4h., 90%. (iii) SeO
2
, dioxane, r.t., 90%.
The synthesis of 2,7-diamino-1,8-naphthyridine 14 is described in Scheme 3. The advanced starting compound 11 was prepared according to the literature method [7, 8]. Compound 11 was then converted into the chloroamino intermediate 12 by direct reaction with POCl3 without conventional protection of the amino group. The substitution of chloro by azide was smoothly achieved by the treatment of 12 with sodium azide in DMF at 60 ºC to produce 13 in 90% yield, while the reaction of 12 with benzylamine lead to 15 in 50% yield. The target compound 14 was then synthesized, albeit in poor yield (25%), by refluxing compound 12 with NaNH2 in xylene. However, excellent yields (98%) of 14 can be achieved via the reduction of the azide derivative 13 with Zn/AcOH.
Scheme 3.
Reagents, conditions and yields. (i) POCl3, reflux, 4h., 60%. (ii) PhCH2NH2, 120ºC, 6h., 50%. (iii) NaN3, DMF, 60ºC, 4h., 90%. (iv) Zn, AcOH, reflux, 3h., 98%. (v) NaNH2, xylene, reflux, 25%. (vi) ammonolysis.
Compound 14 is also obtained by direct ammonolysis of compound 12 at high temperature in a sealed tube. But care must be taken during this procedure as it was found to be dangerous and the yield is also poor compared to that of azide reduction with Zn/AcOH .
Conclusions
We have synthesized a series of functionalized naphthyridines and novel triethylene glycol-linked mono- and di-naphthyridines in good yields by simple and efficient procedures. All the naphthyridines and the intermediates were well characterized by spectroscopic means. A new, efficient and practical method under mild conditions for the synthesis of 2,7-diamino-1,8-naphthyridine (14) has also been developed, which also improves the yield for the synthesis of this compound.
Acknowledgements
Financial assistance from the Department of Science and Technology (DST), and the Council of Scientific and Industrial Research (CSIR), Govt. of India is gratefully acknowledged. S.J., and A.K.A. thank CSIR and A.C.M. thanks UGC for research fellowships.
Experimental
General
Melting points (m.p) were recorded on a Toshniwal hot-coil stage melting point apparatus and are uncorrected. NMR spectra were recorded in CDCl3 (unless otherwise mentioned) with TMS as the internal standard on Bruker AM 200 MHz and 300 MHz NMR instruments. Chemical shifts are given in δ (ppm) scale and J values in Hz respectively. IR spectra were measured in KBr disks with a Perkin Elmer (Model 883) spectrometer. Mass spectra (JEOL JMS600), and elemental analyses were obtained from the IICB, and the IACS (Kolkata) respectively. All solvents were dried prior to use by common methods. Silica gel (60-120 mesh) has been used for all chromatographic purifications. Starting materials were either commercially available (purchased from Fluka and Aldrich) or synthesized according to the cited literature procedures.
2-Acetylamino-7-methyl-1,8-naphthyridine (2): Distilled acetic anhydride (0.5 mL) was added to 2-methyl-7-amino-1,8-naphthyridine (1, 0.158 g, 1.0 mmol) and the reaction mixture was stirred overnight at 80 ºC. The excess acetic anhydride was removed under vacuum. To this, diethyl ether was added, and the solid separated was collected by filtration. The solid was washed thoroughly with NaHCO3 solution, dried and crystallized from chloroform-methanol to afford the title compound 2 (0.174g, 87%) as a yellow solid; m.p. 280 ºC [lit. [5] 279-281 ºC]; 1 H-NMR (200 MHz) δ: 8.70 (bs, 1H), 8.44 (d, 1H, J = 8.8 Hz), 8.12 (d, 1H, J = 8.8 Hz), 8.00 (d, 1H, J = 8.2 Hz), 7.30 (d, 1H, J = 7.5 Hz), 2.74 (s, 3H), 2.27 (s, 3H); IR (cm -1 ): 1503, 1606, 1697, 3005, 3176; Anal. Calcd for C11H11N3O: required C, 65.65; H, 5.50; N, 20.88. Found: C, 65.58; H, 5.42; N, 20.95.
2-Acetylamino-1,8-naphthyridine-7-carboxaldehyde (3): To a stirred solution of selenium dioxide (0.11 g, 1.0 mmol) in dioxane (10 mL) containing 2-3 drops of water, compound 2 (0.201 g, 1.0 mmol) was added and heated for 4 h at 50-55 ºC. The hot solution was filtered through a pad (2-3 cm) of Celite and the solvent was removed through the short path distillation. The residue was extracted with chloroform and washed well with water. The organic layer after evaporation and column chromatography purification gave the desired compound 3 (0.161g, 75%); m.p 215 ºC; 1 H-NMR (200 MHz) δ: 10.23 (s, 1H), 8.70 (d, 1H, J = 8.9 Hz), 8.52 (bs, 1H), 8.37 (d, 1H, J = 3.1 Hz), 8.34 (d, 1H, J = 4.0 Hz), 8.13 (d, 1H, J = 8.1 Hz), 2.32 (s, 3H); 13 C-NMR (50 MHz) δ: 193.41, 169.59, 154.51, 139.36, 138.22, 123.11, 117.52, 117.07, 25.00; IR (cm -1 ): 1607, 1703, 3060, 3186; Anal. Calcd for C11H9N3O2: required C, 61.39; H, 4.21; N, 19.52. Found: C, 61.31; H, 4.25; N, 19.45.
2-Acetylamino-7-hydroxymethyl-1,8-naphthyridine (4): To a solution of 3 (0.215 g, 1.0 mmol) in dry THF (10 mL), sodium borohydride (0.016 g, 0.433 mmol) was added and stirred under nitrogen for half an hour. THF was then removed and the excess borohydride was decomposed by dropwise addition of 2.5 N HCl. The mixture was extracted with choloroform. The organic layer was washed with water, dried (Na2SO4) and evaporated under reduced pressure to give the title compound 4 (0.184 g, 85%) which was sufficiently pure for the next step. M.p. 240 ºC (decomp.); 1 H-NMR (200 MHz) δ: 8.69 (bs, 1H), 8.52 (d, 1H, J = 8.8 Hz), 8.19 (d, 1H, J = 8.8 Hz), 8.11 (d, 1H, J = 8.2 Hz), 7.30 (d, 1H, J = 8.2 Hz), 4.96 (s, 2H), 3.41 (bs, 1H, OH), 2.46 (s, 3H); IR (cm -1 ): 1296, 1389, 1696, 3203, 3391, 3733; Anal. Calcd for C11H11N3O2: required C, 60.82; H, 5.10; N, 19.34. Found: C, 60.72; H, 5.14; N, 19.40.
2-Amino-7-hydroxymethyl-1,8-naphthyridine (5): Compound 4 (0.217 g, 1.0 mmol) was taken up in 1N NaOH (3 mL) and stirred overnight. The reaction mixture was then neutralized with acetic acid, and extracted with 5% methanol in chloroform solution. The organic layer was dried (Na2SO4) and then evaporated under reduced pressure to give the desired product 5 (0.140g, 80%); m.p. 240 ºC; 1 H-NMR (10% DMSO-d6 in CDCl3, 200 MHz) δ: 7.73 (d, 1H, J = 8.0 Hz), 7.63 (d, 1H, J = 8.0 Hz), 6.99 (d, 1H, J = 8.0 Hz), 6.64 (d, 1H, J = 8.0 Hz), 5.80 (bs, 2H), 4.63 (s, 2H), 2.67 (bs, 1H, OH); MS (FAB): m/z (%): 176 (MH + , 100), 159 (20), 146 (40), 75 (95), 57 (75); Anal. Calcd for C9H9N3O: required C, 61.70; H, 5.18; N, 23.99. Found: C, 61.71; H, 5.20; N, 24.02.
2-Amino-1,8-naphthyridine-7-carboxaldehyde (6): A mixture of compound 3 (0.215 g, 1.0 mmol) and 1N HCl (1.0 mL) in dioxane (10 mL) was refluxed for 30 min. Then the solution was cooled to room temperature, and neutralized carefully with NaOH solution. The precipitate formed was filtered, which afforded the desired compound 6 (0.147 g, 85%); 1 H-NMR (200 MHz) δ: 10.19 (s, 1H), 8.1 (d, 1H, J = 8.0 Hz), 7.94 (d, 1H, J = 8.0 Hz), 7.84 (d, 1H, J = 8.0 Hz), 6.88 (d, 1H, J = 8.0 Hz), 5.18 (bs, 2H); IR (cm -1 ): 1305, 1387, 1701, 3332; MS (FAB): m/z (%): 173 (M + , 65), 159 (30), 145 (45), 117 (25), 97 (35), 81 (45), 69 (95), 57 (100); Anal. Calcd for C9H7N3O: required C, 62.42; H, 4.07; N, 24.26. Found: C, 62.40; H, 4.10; N, 24.28.
2,7-Dimethyl-4-methoxy-1,8-naphthyridine (8): To a methanolic solution of 2,7-dimethyl-4-chloro-1,8naphthyridine (7, 0.193 g, 1.0 mmol), solid KOH (0.056 g, 1.0 mmol) was added and stirred for 4 h at
80 ºC. The solvent was stripped off. The residue was added to water and extracted with dichloromethane. The solvent was evaporated to dryness to get the desired compound 8 (0.169 g, 90%); mp. 130 ºC; 1 H-NMR (200 MHz) δ: 8.31 (d, 1H, J = 8.3 Hz), 7.21 (d, 1H, J = 8.3 Hz), 6.60 (s, 1H), 4.01 (s, 3H), 2.73 (s, 3H), 2.70 (s, 3H); IR (cm -1 ): 1092, 1133, 1181, 1606; Anal. Calcd for C11H12N2O3: required C, 70.19; H, 6.43; N, 12.96. Found: C, 70.21; H, 6.45; N, 12.99.
4-Methoxy-1,8-naphthrydine-2,7-dicarboxaldehyde (9): To a stirred solution of 8 (0.188 g, 1.0 mmol) in dioxane (10 mL), SeO2 (0.33 g, 3.0 mmol) was added and stirring was continued for 12 h. The reaction mixture was filtered through a 4-5 cm pad of Celite-silica gel. Water (5 mL) was added to the dioxane solution, followed by extraction with dichloromethane. The organic solvent was evaporated under reduced pressure to give the desired compound 9 (0.194 g, 90%); m.p. 210 ºC; 1 H-NMR (200 MHz) δ: 10.32 (s, 1H), 10.26 (s, 1H), 8.81 (d, 1H, J = 8.2 Hz), 8.18 (d, 1H, J = 8.3 Hz), 7.54 (s, 1H), 4.20 (s, 3H); IR (cm -1 ): 1091, 1170, 1606, 1705; MS (EI): m/z (%): 216 (M + , 100), 188 (95), 173 (20), 158 (40), 129 (25), 90 (95), 71 (50), 57 (75); Anal. Calcd. for C11H8N2O3: required C, 61.11; H, 3.73; N, 12.96. Found: C, 61.10; H, 3.75; N, 13.00.
1,2-bis-[2-(2,7-dimethyl-1,8-naphthyridin-4-yloxy)ethoxy]ethane (10a) and 1,2-[2-(2,7-dimethyl-1,8naphthyridin-4-yloxy)ethoxy]ethane (10b): A solution of triethylene glycol (0.150 g, 1.0 mmol), and KOH (0.112 g, 2.0 mmol) in dry THF (10 mL) was added the solution of compound 7 (0.386 g, 2.0 mmol) and the mixture was heated at 60 ºC for 24 h. Then the solvent was removed to dryness and dichloromethane was added to the residue. The organic layer was washed with water, dried (Na2SO4) and solvent was removed under reduced pressure to give a brown gum. Column chromatography of the crude product eluting with 1% methanol in chloroform afforded first the di-naphthyridine polyether 10a (0.369 g, 80%) as an off-white solid. 1 H-NMR (200 MHz) δ: 8.36 (d, 2H, J = 8.3 Hz), 7.22 (d, 2H, J = 8.3 Hz), 6.61 (s, 2H), 4.32 (t, 4H, J = 4.6 Hz), 3.96 (t, 4H, J = 4.6 Hz), 3.58 (t, 4H, J = 4.3 Hz), 2.73 (s, 6H), 2.70 (s, 6H); MS (FAB): m/z (%): 462 (M + , 5), 427 (10), 405 (10), 325 (5), 225 (10), 203 (100), 187 (20), 175 (40), 159 (10); Anal. Calcd. for C26H30N4O4: required C, 67.48; H, 6.53; N, 12.01. Found: C, 67.62; H, 6.45; N, 11.95. Further elution gave the mono-naphthyridine 10b (0.08 g, 1518%) as a light yellow semi-solid. 1 H-NMR (300 MHz) δ: 8.41 (d, 1H, J = 8.4 Hz), 7.21 (d, 1H, J = 8.3 Hz), 6.69 (s, 1H), 4.38 (t, 2H, J = 4.4 Hz), 4.00 (t, 2H, J = 4.2 Hz), 3.80-3.76 (m, 4H), 3.74-3.70 (m, 2H), 3.62 (t, 2H, J = 4.4 Hz), 2.76 (s, 3H), 2.75 (s, 3H), 2.36 (s, 1H); MS (EI): m/z (%): 306 (M + , 5), 289 (10), 276 (10), 262 (10), 232 (20), 188 (25), 174 (100), 157 (20), 145 (65), 116 (25), 93 (20), 74 915); Anal. Calcd for C16H22N2O4: required C, 62.73; H, 7.23; N, 9.14. Found: C, 62.70; H, 7.26; N, 9.20.
2-Amino-7-chloro-1,8-naphthyridine (12): A mixture of the compound 11 (4.0 g, 0.024 mol) in freshly distilled POCl3 (25 mL) was refluxed for 4h. Excess POCl3 was distilled off and the reaction mixture was poured onto ice-cold water. After neutralization with Na2CO3, a yellow solid appeared, which was collected by filtration and recrystallized from methanol-ether to give 12 (2.67 g, 60%). M.p. 170 ºC; 1 H-NMR (200 MHz) δ: 7.86 (d, 1H, J = 4.0 Hz), 7.82 (d, 1H, J = 4.0 Hz), 7.17 (d, 1H, J = 8.0 Hz), 6.75 (d, 1H, J = 8.0 Hz), 5.33 (bs, 2H); IR (cm -1 ): 1437, 1489, 1607, 1695, 3311; MS (FAB) (m/z):
179.5 (M + , 100%); Anal. Calcd. for C8H6N3Cl: required C, 53.49; H, 3.36; N, 23.39. Found: C, 53.41; H, 3.40; N, 23.50.
2-Amino-7-azido-1,8-naphthyridine (13): To a stirred solution of 12 (0.4 g, 2.22 mmol) in dry DMF (5 mL), sodium azide (0.289 g, 4.44 mmol) was added and the mixture stirred for 4h at 60 ºC. The precipitated NaCl was filtered off. The filtrate was distilled under reduced pressure to remove DMF. The solid was washed well with water and air-dried to give the title compound 13 (0.248 g, 95%); mp. 275 ºC; 1 H-NMR (200 MHz) δ: 8.1 (d, 1H, J = 8.0 Hz), 7.76 (d, 1H, J = 8.0 Hz), 7.69 (d, 1H, J = 8.0 Hz), 6.9 (d, 1H, J = 8.0 Hz), 5.5 (bs, 2H); IR (cm -1 ): 1651, 3168, 3321.
2,7-Diamino-1,8-naphthyridine (14) from 13: To a stirred solution of the azo compound 13 (0.8 g, 4.3 mmol) in glacial acetic acid (12.72 mL), zinc dust (2.12 g) was added and refluxed for 3 h. A precipitate was obtained which was filtered. Acetic acid was removed under reduced pressure to give the desired pure product as a yellowish brown solid 14 (0.674 g, 98%); m.p. 222-223 ºC [lit.[6] 223 ºC]; 1 H-NMR (DMSO-d6, 200 MHz) δ: 7.67 (d, 2H, J = 10.0 Hz), 6.53 (d, 2H, J = 8.0 Hz), 7.25 (bs, 4H); IR (cm -1 ): 1267, 1385, 1641, 2925, 3427; MS (FAB) (m/z): 160 (M + , 52%); Anal. Calcd for C8H8N4: required C, 59.98; H, 5.03; N, 34.97. Found: C, 59.95; H, 5.10; N, 35.00.
2,7-Diamino-1,8-naphthyridine (14) from 12: To a stirred solution of sodium amide (1.086 g, 0.025 mol) in dry xylene (100 mL) compound 12 (1.0 g, 0.005 mol) was added and heated at 130 0 C under nitrogen for 12 h. The precipitate obtained was filtered and poured onto ice to quench excess sodium amide. Water was removed by distillation under reduced pressure and the solid was extracted with methanol-chloroform (15:85) to afford the desired product 14 (0.21 g, 25%) identical in all respects with the above.
2-Amino-7-benzylamino-1,8-naphthyridine (15): A suspension of 2-Amino-7-chloro-1,8-naphthyridine (12, 0.175 g, 1.0 mmol), and distilled benzylamine (0.5 mL) was heated for 6h at 120 ºC. The sticky precipitate was washed with water followed by acetone and it was then air-dried. The crude solid was recrystallized from methanol which afforded pure compound 15 (0.118 g, 50%); m.p > 300 ºC; 1 H-NMR (200 MHz) δ: 7.65-7.57 (m, 2H), 7.40-7.29 (m, 6H), 6.48 (d, 1H, J = 8.5 Hz), 6.38 (d, 1H, J = 8.6 Hz), 5.60 (bs, 2H), 4.73 (d, 2H, J = 4.0 Hz); IR (cm -1 ): 1526, 1627, 1660, 3173, 3351; Anal. Calcd for C15H14N4: required C, 71.97; H, 5.63; N, 22.38. Found: C, 71.90; H, 5.60; N, 22.42.
References
1. Tomcufcik, A. S.; Meyer, W. E.; Marsico, J. W. Eur. Pat. Appl. EP 446604, 1991; US Appl. 494387, 1990; [Chem. Abstr. 1992, 116, 235628p].
2. Saupe, T.; Schaefer, P.; Meyer, N.; Wuerzer, B.; Westphalen, K. O. Ger. Offen. DE 3907937, 1990; [Chem. Abstr. 1991, 114, 81808s].
3. Cotrel, C.; Guyon, C.; Roussel, G.; Taurand, G. Eur. Pat. Appl. EP 208621, 1987; FR Appl 85/10619, 1985; [Chem. Abstr. 1987, 107, 39780g].
.
4. (a) Goswami, S.; Mukherjee, R. Molecular recognition: A simple dinaphthyridine receptor for urea. Tetrahedron Lett., 1997, 38, 1619-1622; (b) Goswami, S.; Ghosh, K.; Mukherjee,
Recognition of insoluble tartaric acid in chloroform. Tetrahedron, 2001, 57, 4987-4993; (c) Hamilton, A. D.; Pant, N. Nucleotide base recognition: ditopic binding of guanine to a macrocyclic receptor containing naphthyridine and naphthalene units. J. Chem. Soc. Chem. Commun. 1988, 765-766.
5. Brown, E. V. 1,8-Naphthyridines. I. Derivatives of 2- and 4-methyl-1,8-naphthyridines. J. Org. Chem. 1965, 30, 1607-1610.
6. Collin, J-P.; Youinou, M-T. Synthesis, X-ray molecular structure and electrochemical properties of a binuclear copper(I) complex with 2,7-diphenyl-azo-1,8-naphthyridine. Inorg. Chim. Acta. 1992, 201, 29-34.
7. Chandler, C. J.; Deady, L. W.; Reiss, J. A.; Tzimos, V. J. The synthesis of macrocyclic polyetherdiesters incorporating 1,10-phenanthrolino and 1,8-naphthyridino subunits. J. Heterocycl. Chem. 1982, 19, 1017-1019.
8. Carboni, S.; Settimo, A. D.; Pirisino, G. Synthesis in the 1,8-naphthyridine series, Ann. Chim. (Rome) 1964, 54, 883-890; [Chem. Abstr. 1965, 63, 5620].
9. Carboni, S.; Settimo, A. D.; Ferrarini, P. L.; Ciantelli, P. L. Investigation of some tetrazole derivatives of 1,8-naphthyridines. J. Heterocycl. Chem. 1970, 7, 1037-1043.
Samples Availability: Available from the authors.
© 2005 by MDPI (http://www.mdpi.org). Reproduction is permitted for noncommercial purposes.
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ENGAGING THE MATURE WORKER
An Action Plan for Alberta
Table of Contents
1
2
Executive Summary
With the workforce aging in Alberta and across Canada, labour force participation by mature workers is attracting increased attention. As people live longer, healthier lives, many wish to stay active in the workforce or to volunteer in their communities. Mature workers have developed valuable skills and abilities and a lifetime of knowledge and work experience.
At issue is not only the need for increased labour supply, but how to minimize the loss of experience, corporate memory, leadership and mentorship that can occur when people retire. Without taking action now to address the impacts of an aging workforce, there will be a significant decline in Alberta's labour supply.
In 2006, the Government of Alberta acknowledged the need to increase the labour force participation of mature workers in its comprehensive labour force strategy, Building and Educating Tomorrow's Workforce (BETW). Between October 2007 and February 2008 an online public consultation on Alberta's aging workforce gathered input from Albertans on their priorities, issues and experience with an aging workforce. Following this, government has developed an action plan to support increased labour force participation of mature workers. The action plan is based on the following assumptions:
* With the aging population, increasing mature worker labour force participation may be important for improving productivity and encouraging economic growth.
* Mature workers have identifiable work-related needs, such as the need for increased flexibility, which are not being fully addressed.
* Market forces and employer practices will have a positive influence on increasing the workforce participation of mature workers; however, policy changes may be necessary to remove some barriers and to sustain strong labour market participation.
Engaging the Mature Worker: An Action Plan for Alberta identifies four overarching goals to support mature workers in the labour force.
Goal 1 – Engage Employers
There is a shared understanding of the value of mature workers in the workplace, and increased mature worker participation in the labour force.
Goal 2 – Support Mature Workers
Mature workers wanting to participate in the workforce have the support and resources they need.
Goal 3 – Promote Active Aging
There is a growing societal awareness that active aging includes a happy and healthy retirement and may involve extended or part-time participation in the workforce.
Goal 4 – Promote a Supportive Policy Environment
Retirement programs and policies support the participation of mature workers, should they choose to remain in the labour force.
Implementation of the Engaging the Mature Worker action plan will take place over a number of years. If the trend toward increased labour force participation of mature workers is encouraged, an additional 40,000 mature workers would continue to be active in the workforce ten years from now.
Developing supports for hiring and retaining mature workers and promoting investment in our human resources will take the cooperation of all partners; in particular employers, industry leaders, training providers, government and individual workers. As partners work together, a new map of the working world is being created – one in which employers recognize that mature workers are among their most valuable assets, and mature workers continue to demonstrate their value, potential and ability to contribute.
3
4
Introduction
Alberta's population is aging as a result of increased life expectancy and declining birth rates. This combination of trends is expected to bring about significant social and economic transitions, with impacts for healthcare, housing, social engagement, fiscal policies, labour supply and demands in certain occupations. With the workforce aging in Alberta, and across Canada, labour force participation by mature workers is increasingly attracting national attention. As people live longer, healthier lives, many wish to stay active in the workforce or to volunteer in their communities.
Mature workers have developed valuable skills and abilities and a lifetime of knowledge and work experience. At issue is not only the need for increased labour supply, but how to minimize the loss of experience, corporate memory, leadership and mentorship that occurs when people retire.
Definition of mature workers
It is important to note that mature workers are not a homogeneous group – they work in full-time and part-time, temporary and permanent, white-collar and bluecollar jobs, and they generally range in age from their mid 50s to their late 70s. As a result, there is no real consensus on the definition of mature workers.
Figure 1 provides labour force participation rates for Albertans across various age groups. Between 87 and 90% of the population aged 25 to 54 participate in the labour force, the highest rates in Canada. Participation begins to decline after the age of 55, and drops significantly after the age of 60. Because labour force participation patterns start to show significant change when people are in their mid-50s, for the purpose of this action plan, mature workers are defined as people in the labour market aged 55 and older.
Maturing of the workforce
The demographic dynamics that Alberta and the rest of Canada will experience in the future are very different from those seen in the past. The 20th century was one of sustained population growth; the 21st century will be one of aging. 1 The aging population has already had an impact on Alberta's labour force, with the number of mature workers in the labour force doubling between 1999 and 2009. Mature workers currently account for almost 16% of Alberta's labour force. Over the next two decades, this shift to an older workforce will accelerate further.
Adding to the impact of this demographic shift is the fact that the first of the baby boomers are beginning to retire. In 2009 the average age of retirement in Alberta was 64 compared to the national average of 61.9 years.
Although many mature workers choose to remain engaged in the workforce in Alberta, there is still potential to increase participation rates and the valuable contribution that mature workers make to the workforce and the Alberta economy.
Loss of talent
As baby boomers begin to retire, many organizations have yet to come to grips with the extent of their talent shortages and succession planning for the future. Over the next decades, Alberta companies are among those facing major challenges attracting staff, retaining talent, engaging employees, and effectively transferring knowledge – in short, developing tomorrow's leaders. According to the Conference Board of Canada:
… Research indicates that the imminent retirement of the baby-boom generation heralds profound change in the composition and structure of our national labour force and that by 2015 not enough qualified people will be available to fill all of the positions vacated by departing mature employees. Simply put, there are too few young workers. In addition, immigration at its current levels will not close the gap. 2
1 Roderic Beaujot, et al. Population Change in Canada to 2017 and Beyond. December 2007.
2 Conference Board of Canada. Too Few People, Too Little Time: The Employer Challenge of an Aging Workforce. July 2006.
5
6
Government's response
In response to labour and skill shortages, the Government of Alberta released a labour force development strategy, Building and Educating Tomorrow's Workforce (BETW) 3 , built around four themes: Inform Albertans about education and labour market issues, initiatives, and opportunities; Attract people to Alberta; Develop the knowledge and skills of Albertans as well as high performance work environments; and Retain people in Alberta's workforce. The BETW Performance Update 2009 reports on highlights and accomplishments under each theme. 4
Under this framework, the Retain theme identifies the need to retain mature workers in the workforce:
" Work with industry, employer groups and labour groups on increasing workforce retention of mature workers, including increasing the flexibility of work arrangements and pension programs."
An online public consultation on Alberta's aging workforce took place from October 2007 to February 2008, supported by the discussion document Mature Workers in Alberta and British Columbia: Understanding the Issues and Opportunities 5 . Over 90% of the 422 people responding agreed that the impacts of an aging workforce should be a high priority for both government and the private sector. The most common areas identified to support mature workers included offering flexible work arrangements and age friendly work environments; developing flexible pension policies that allow a gradual transition out of the labour force; and providing employment services and supports for mature workers. Results from the consultation, combined with ongoing research and interviews with stakeholders, have been used to develop Engaging the Mature Worker: An Action Plan for Alberta.
The Demographic Planning Commission – Findings Report 6 released by Alberta Seniors and Community Supports in December 2008 provides further validation of the opportunities and challenges of an aging population.
Subsequent release of an Aging Population Policy Framework in November 2010 identifies policy directions that support Albertans who choose to remain engaged in the workforce in their senior years. 7
3 Alberta Employment and Immigration. Building and Educating Tomorrow's Workforce: Alberta's 10 Year Strategy. July 2006.
4 Alberta Employment and Immigration. BETW Performance Update 2009. October 2010.
5 Alberta Employment and Immigration. Mature Workers in Alberta and British Columbia: Understanding the Issues and Opportunities. August 2008.
6 Alberta Seniors and Community Supports. Demographic Planning Commission: Findings Report. December 2008.
7 Alberta Seniors and Community Supports. Aging Population Policy Framework. November 2010.
Although increased labour force participation by mature workers is the clear objective of Engaging the Mature Worker: An Action Plan for Alberta, the plan recognizes the complex circumstances and motivations of mature workers, particularly those approaching the end of their working years. For example, mature workers with physically demanding jobs may need to transition to other roles in the workforce. In recognition of these realities, this action plan focuses on actions that will create a more open and supportive environment for mature workers.
Impact of the economy on mature workers
The economic downturn that began in the fall of 2008 had an impact on many workers, as unemployment rates increased, fewer new jobs were created and the value of investment portfolios declined. According to the Conference Board of Canada however, while many boomers have temporarily delayed retirement because of the effects of the recession on their savings, the recession has provided only a temporary reprieve from the tight labour market conditions of 2007 and 2008. 8
While unemployment in 2009 was significantly higher for all age groups than a year prior, mature workers experienced lower rates of unemployment than younger workers. This suggests many Alberta employers value the experience and contributions of mature workers in their workforce.
8 Conference Board of Canada. Lessons From the Recession. February 2010.
7
8
Strategic Considerations
A number of strategic issues were identified in the development of this action plan:
Retirement is a social value that has to be respected
The ability to retire from active participation in the workforce reflects a number of important social values, including the notion of retirement as enjoyment of a period of life without work obligations, the ability to deal with a variety of personal and family issues without the constraint of working for a living, and the ability to deal with the health issues often identified as part of the aging process. These realities and the value of retirement from work must be respected. At the same time, disincentives to continued employment must be removed for those people who choose to continue working.
There is little 'hard' data about what works
Most jurisdictions' efforts to increase mature worker labour force participation rates are fairly recent, with the result that there is little research available regarding what actions will be most effective. In Alberta, participation rates for mature workers have increased gradually over the past decade, a trend that should be encouraged.
Planning within the context of age diversity
Differences in gender, health and socio-economic levels need to be considered in the design and delivery of specific actions. While this action plan is directed towards supporting mature worker labour force participation, actions need to be understood and implemented within the context of promoting the benefits of a multi-generational workforce.
The Need for Engaging the Mature Worker: An Action Plan for Alberta
This action plan is based on the following assumptions:
* As the population ages, increasing mature worker labour force participation may be important in relation to improving productivity and encouraging economic growth.
* Mature workers have identifiable work-related needs, such as the need for increased flexibility in the workforce, which are not being fully addressed.
* Market forces and employer practices will have a positive influence on increasing the workforce participation of mature workers; however, policy changes may be necessary to remove some barriers to sustain strong labour market participation.
Mature worker labour force participation and economic growth
Currently, Alberta's working age population is the youngest in Canada and labour force utilization and labour intensity rank at or near the top among provinces. 9 However, like other jurisdictions, the number of mature workers is increasing. "The oldest members of the large baby-boom cohort are now in their early 60s. Beyond 2014, economic growth will be restrained by the exodus of baby boomers from the labour market, a dominant trend that will continue until 2028." 10
These are highly skilled workers with knowledge and experience in high demand in the labour market. Because the baby boom generation is so large, even a small increase in the labour force participation rate of this group would have a significant positive effect on labour supply. Figure 2 shows the most recent trends in labour market participation as well as projections out to 2019. Actions outlined later in this action plan aim to encourage these strong trends in labour force participation.
Source: Statistics Canada Labour Force Survey - 1999, 2004, 2009 Alberta Employment and Immigration - future projections 2014, 2019
9 Alberta's standard of living (GDP/Capita) is a function of its labour effort and productivity. Labour effort is determined by population profile (the size of the working age population), labour force utilization (how many people are working) and by labour intensity (how many hours each person is working).
10 Conference Board of Canada. Canadian Outlook 2010: Long Term Economic Forecast. April 2010.
9
Addressing the needs of mature workers
There are many factors influencing mature workers' labour force participation. They include personal reasons, financial and quality of life considerations, health considerations, training and professional development, employment policies and practices, access to employer sponsored benefits, opportunities for alternative work arrangements and phased retirement. 11
Although mature workers have lower unemployment rates than younger age cohorts, they tend to have longer durations of unemployment once they do become unemployed. Re-entry can be difficult with workers needing to adjust to the challenges of job search, and potential employer misperceptions about mature workers.
While there are many initiatives already underway to increase the retention of mature workers, surveys indicate that few employers are developing strategies to recruit or retain mature workers. 12 As the Conference Board of Canada found in its 2008 study on mature worker recruiting and retention, most Canadian employers are not tackling the aging workforce from a strategic perspective:
" Organizations are concerned about their aging workforce, but most have not yet targeted specific human resource (HR) programs and policies to their mature workers. The few organizations that have adapted their HR policies and programs to meet the needs of older workers report being more successful at attracting and retaining individuals over the age of 50." 13
Employers who do recognize the value of mature workers have identified ways to take advantage of their skills and experience. Workplace alternatives can include some or all of the following:
* Reducing hours or responsibilities
* Moving to part-time work
* Recalling retirees at busy times
* Utilizing the skills of experienced workers for consulting or mentoring
* Redesigning jobs
* Increasing opportunities for training
* Encouraging second careers through transfers, reassignment, or development of skills, including careers closely related to the first career but more suited to the mature worker.
Supporting strong labour market participation of mature workers
As the population ages, it will be important that employer practices continue to evolve to accommodate the increased participation of mature workers in the labour force. In countries and jurisdictions around the world, engaging mature workers in the workforce is becoming part of a comprehensive social and economic agenda and an accepted policy objective. Government and stakeholders will play an essential role in coordinating efforts to implement and monitor the effectiveness of policies and actions aimed at increasing the participation and engagement of all workers, including mature workers.
Where We Are – Where We Want to Be
Figure 3 looks at three key areas – the workplace, workers, and government policies – in regards to impacts on mature workers' participation in the labour force. The first column describes the current state of affairs; the second describes a future state in which any barriers to labour force participation for mature workers have been removed. The priority actions recommended within this action plan were selected to close the gaps between these current and future states. Ongoing work extending over a number of years will be required to achieve the vision described in this section.
Figure 3 - Current and Future States
Where We Are (Current State)
Where We Want to Be (Future State)
Workers
Many workers approaching retirement would like to continue working with new roles or terms but current work/ retirement policies and practices may not encourage this.
Workers have options that allow them to remain in the workforce if they choose to continue working.
Post-secondary courses and programs are primarily subscribed to by youth and people in mid-career interested in expanding their qualifications.
There is a growing demand for employment services tailored to the needs of mature workers.
The average Canadian retirement age of around 62 reflects the societal view that a happy, healthy retirement means leaving the workforce earlier than past generations.
Alberta's post-secondary system supports life long learning and there is a societal recognition that careers continue to evolve throughout working life.
Mature workers seeking to participate in the workforce have the employment supports they require to find work.
Society recognizes that healthy aging may involve working longer and a gradual transition from the workforce to retirement.
The traditional view of a school/work/ retirement life pattern is beginning to change to one with less distinct stages.
The expectation of life long learning and choice in learning/work/retirement patterns is widely accepted.
Government Policies
The need for government, together with stakeholders, to develop and implement a comprehensive mature worker engagement and retention plan has been identified.
A mature worker retention and engagement plan is in place, which includes a mechanism for ongoing communication and coordination among workforce partners.
Historically, Canada's public income security programs have not necessarily supported mature worker labour market participation.
Alberta's legislative framework for private sector pension plans is limited in its support of flexible pension design.
The federal public income security system is seen as supportive of mature worker labour market participation, by providing options such as allowing workers to combine pension and employment income to transition to retirement if they wish to.
Alberta's legislative framework for private sector pension plans is more flexible.
Goals and Priority Actions
Engaging the Mature Worker: An Action Plan for Alberta is organized under the three themes of workplace practices, worker participation and government policies. The action plan will aim to achieve four goals in order to support increased participation of mature workers in the labour force. Priority actions are established under each goal to begin the work of closing the gap identified between current and future states in Figure 3.
Supporting departments, as identified after each priority action, will take on responsibility for implementation of these actions. As the provincial government moves forward with implementation, it will look to external stakeholders to collaborate on various components of this action plan.
Workplace Practices
Goal 1 – Engage Employers
There is a shared understanding of the value of mature workers in the workplace and in increasing mature workers' participation in the labour force.
Priority Actions
* Identify and support a network of employer champions to promote the retention of mature workers and the value of succession planning to minimize the loss of experience, corporate memory and mentorship that occurs when people retire. (Employment and Immigration, Finance and Enterprise)
* Develop tools to support succession planning, recruitment, development and retention of mature workers, and age-friendly work environments. (Employment and Immigration, Finance and Enterprise)
* Work with employers and associations to design and deliver workshops to raise awareness of the need to develop mature worker strategies and share best practices; including flexible work arrangements, careers that bridge to retirement for those who cannot continue in their current career, and phased retirement. (Employment and Immigration)
Worker Participation
Goal 2 – Support Mature Workers
Mature workers who want to participate in the workforce have the support and resources they need.
Priority Actions
* Provide employment and career services to mature workers to support assessment of their skills and experience, writing resumés and application letters, job search and support career change if necessary. (Employment and Immigration)
* Work with Campus Alberta partners to raise public awareness of programs that meet the career development and training needs of mature workers. (Advanced Education and Technology)
Goal 3 – Promote Active Aging
There is a growing societal awareness that active aging includes a happy and healthy retirement and may involve extended or part-time participation in the workforce.
Priority Action
* Promote understanding of life expectancy, financial needs and how these will change over time; sources of retirement income and work alternatives; and the value and importance of lifelong learning. (Seniors and Community Supports; Employment and Immigration; Finance and Enterprise; Advanced Education and Technology)
Government Policies
Goal 4 – Promote a Supportive Policy Environment
Retirement programs and policies support the participation of mature workers, should they choose to remain in the labour force.
Priority Actions
* Consult with industry partners and unions on options to increase flexibility in pension design. (Finance and Enterprise, Seniors and Community Supports)
* Work with the federal government and other provincial governments on an ongoing basis to ensure public income security programs 14 and the tax system continue to be supportive of mature workers who choose to remain active in the labour force. (Finance and Enterprise, Seniors and Community Supports)
14 Finance Canada. Information Paper: Proposed Changes to the Canada Pension Plan. May 2009. http://www.fin.gc.ca/n08/data/09-051_1-eng.asp
Monitoring Success
Engaging the Mature Worker: An Action Plan for Alberta directly supports the three outcomes in BETW:
* Improving the supply of workers,
* Increasing the education and skill level of working Albertans, and
* Fostering high performance work environments.
This action plan supports increased labour force participation of Alberta's mature workers and contributes to an improved supply of knowledgeable, skilled workers. The actions encourage employer investment in mature workers, support mature workers who wish to be engaged in the workforce and promote a supportive policy environment; which will directly contribute to achieving the BETW outcomes.
While work will begin immediately, the success of Engaging the Mature Worker: An Action Plan for Alberta will take place over many years. Performance indicators and related targets have been identified under each outcome (see Figure 4) to enable government and stakeholders to monitor short and long-term progress. If the trend toward increased labour force participation of mature workers is encouraged, an additional 40,000 mature workers would continue to be active in the workforce ten years from now.
In some cases it will be possible to acquire statistical data. In other cases, progress may be measured through the evaluation of data obtained through surveys, focus groups and similar tools.
Figure 4 - Performance Measures
| Outcome | Indicators | 2009 | 2014 Target |
|---|---|---|---|
| Increased participation by mature workers in the workplace | Labour force participation of 55-64 year olds | 73.4% | 76% |
| | Labour force participation of workers aged 65+ | 16.5% | 18% |
| | Impact of increased participation rates | n/a | + 18,000 workers |
| Highly skilled, educated and innovative workers | % of Alberta’s mature workers with post- secondary certificate, diploma or degree | 58.3% | 65% |
| High performance work environments that can make maximum use of innovation and technology | % of employers with strategies in place to address the aging workforce | < 25% | 40% |
| | Participation of mature workers in work related training and education | Baseline data to be collected by survey | TBD |
Adjusting to a Mature Workforce
For social, economic and demographic reasons, engaging the mature worker is becoming a critical issue, not only in Alberta and Canada but around the world. Mature workers offer an incredibly rich resource, with valuable skills, experience and commitment.
Increasing labour force participation of mature workers in Alberta is an important element of Alberta's long-term workforce strategy, Building and Educating Tomorrow's Workforce. With many mature workers looking for continued opportunities to participate in work, and Alberta's economy needing the skills and talents of all segments of the workforce, there are new opportunities for both employers and mature workers.
Over the next months and years, participating departments and stakeholders will implement programs, services and initiatives under each of the priority actions described in the action plan. The Government of Alberta will review and report regularly on progress towards achieving the action plan's outcomes.
Developing supports for hiring and retaining mature workers and promoting human capital investment will take the cooperation of all partners, in particular employers, industry, training providers, government and individual workers. As partners work together, a new map of the working world is being created – one in which employers recognize that mature workers are among their most valuable assets, and mature workers continue to demonstrate their value, potential and ability to contribute.
Appendix A – Mature Workers in Alberta
Working age population
* Alberta has the youngest population of all the provinces. In 2009 the average age in the province was 36.8 while the Canadian average was 39.5 years.
* At the same time, the aging baby boom generation and low birth rates are driving a demographic shift towards an older population in Alberta and across the developed world. The province's population in the 55 plus age group grew from 493,000 to 726,000 between 1999 and 2009, and is projected to be just over 1,000,000 in 2019. In 2009, 25.4% of the working age population was over age 55.
Labour force statistics for mature workers
* Mature workers (age 55 and over) made up 15.5% of the labour force in 2009, and that will continue to increase as the population ages.
* A high percentage of older Albertans choose to continue working relative to the rest of Canada. 73.4% of Albertans aged 55-64 are active in the labour force compared to 61.9% of Canadians; and 16.5% of Albertans over age 65 choose to remain in the labour force compared to only 10.5% of Canadians.
* Alberta experiences one of the lowest unemployment rates in Canada and the unemployment rate for mature workers is even lower than the Alberta average. In 2009, while the unemployment rate was 6.6% in Alberta and 8.3% across Canada, the unemployment rate for Alberta workers over age 55 was only 4.6% – suggesting that mature workers who choose to remain in the labour force are very likely to have employment.
* 17.9% of Albertans worked part-time in 2009. Workers aged 55-64 mirrored this trend; however, beyond age 65 part-time employment increased to 39.6%. More women than men work part-time across all age groups.
Employment of mature workers
* The industry sectors employing the greatest number of males over the age of 55 in 2009 were Construction, Professional Scientific and Technical Services, Agriculture and Manufacturing.
* The sectors employing the most females over the age of 55 were Health and Social Assistance, Retail Trade, Educational Services, and Finance, Insurance, Real Estate and Leasing.
* Across all sectors, 26.2% of workers in Occupations Unique to Primary Industries 15 were over 55, as well as 18.4% of workers in Social Sciences, Education, Government Services and Religion, and 18.1% of workers in Management occupations.
Mature worker educational levels
* The number of workers over the age of 55 in the labour force with university degrees almost tripled (from 24,900 to 73,900) between 1999 and 2009.
* In 2009, 58.3% of the labour force over age 55 held at least a post-secondary certificate, diploma or degree, compared to 56% under age 55.
15 Primary Industries include Agriculture, Logging, Forestry, Mining, Oil and Gas, Fishing.
Appendix B – Bibliography
The following source materials were consulted in preparation of this report:
Alberta Employment and Immigration. (2008, August). Mature Workers in Alberta and British Columbia: Understanding the Issues and Opportunities. http://employment.alberta.ca/documents/RRM/PC_mature_workers.pdf
Alberta Employment and Immigration. (2009) Alberta Labour Force Profiles: Aged 45 and Older. http://www.employment.alberta.ca/BI/2660.html
Alberta Employment and Immigration. (2006, July). Building and Educating Tomorrow's Workforce: Alberta's 10 Year Strategy. http://employment.alberta.ca/BETW
Alberta Employment and Immigration. (2009, February). Alberta's Ageing Labour Force and Skill Shortages. http://www.employment.alberta.ca/documents/LMI/ LMI-SSA_aging-and-shortages.pdf
Alberta Seniors and Community Supports. (2008, December). Demographic Planning Commission: Findings Report. http://www.seniors.gov.ab.ca/Seniors/ tomorrow/FindingsReport.pdf
Alberta/British Columbia Pension Standards Review – Joint Expert Panel on Pension Standards. (2008). Getting Our Acts Together: Pension Reform in Alberta and British Columbia. http://www.finance.alberta.ca/publications/pensions/ pdf/2008_1125_jepps_final_report.pdf
Beaujot, R., McAuillan Kevin and Ravanera, Zenaida. (2007, December). Population Change in Canada to 2017 and Beyond. Horizons 9 (4). http://www.policyresearch. gc.ca/doclib/HOR_v9n4_200712_e.pdf
Calgary Chamber of Commerce. (2007, July). Older Workers: Amending Federal Government Retirement Programs to Tap Into an Underutilized Pool of Labour Supply. http://www.calgarychamber.com/resources/docs/PGA/ Policy&Communications/2007/Publications/CalgaryChamberOlderWorker Submission-final.pdf
Human Resources and Skills Development Canada. (2008, July). Expert Panel on Older Workers: Supporting and Engaging Older Workers in the New Economy. http://www.hrsdc.gc.ca/en/publications_resources/lmp/eow/2008/page00.shtml
Human Resources and Skills Development Canada. (2007, March). Older Workers: Challenges and Policy Issues.
Manpower Inc. (2007, April). The New Agenda for an Older Workforce. http://www.manpower.com.tw/pdf/older_worker_2007_en.pdf
Organization for Economic Co-operation and Development (OECD). (2006). Ageing and Employment Policies: Live Longer, Work Longer. OECD, Paris.
Policy Research Initiative, Government of Canada. (2005, October). Encouraging Choice in Work and Retirement: Project Report. http://www.policyresearch.gc.ca/doclib/PR_LC_Encour-Choice_200510_E.pdf
Report of the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities, 39th Parliament. (2008, April). Employability in Canada: Preparing for the Future. http://cmte.parl.gc.ca/cmte/ CommitteePublication.aspx?COM=13190&SourceId=233928
Towers Perrin Network. (2008, March). Benefits Strategies to Retain and Engage a Mature Workforce. PowerPoint presentation.
The Conference Board of Canada (2010, April). Canadian Outlook 2010: Long-Term Economic Forecast. http://www.e-Library.ca
The Conference Board of Canada (2010, February). Lessons Learned from the Recession. http://www.e-Library.ca
The Conference Board of Canada (2009). Learning and Development Outlook: Learning in Tough Times. http://www.e-Library.ca
The Conference Board of Canada. (2008, October). Harnessing the Power: Recruiting, Engaging, and Retaining Mature Workers. http://www.e-Library.ca
The Conference Board of Canada. (2006, July). Too Few People, Too Little Time: The Employer Challenge of an Aging Workforce. http://www.e-Library.ca
Notes
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Customers as Innovators: A New Way to Create Value
by Stefan Thomke and Eric von Hippel
Customers as Innovators
A New Way to Create Value
R&D has long been a costly and inexact process. Now some companies are trying a radically new approach, giving customers the tools to design and develop their own products.
by Stefan Thomke and Eric von Hippel
isten carefully to what your customers want and then respond with new products that meet or exceed their needs."That mantra has dominated many a business, and it has undoubtedly led to great products and has even shaped entire industries. But slavishly obeying that conventional wisdom can also threaten a company's ability to compete. " L
The difficulty is that fully understanding customers' needs is often a costly and inexact process.Even when customers know precisely what they want, they often cannot transfer that information to manufacturers clearly or completely.Today,as the pace of change in many markets accelerates and as some industries move toward serving "markets of one,"the cost of understanding and responding to customers' needs can easily spiral out of control.
tomers to develop their own flavors,which BBA then manufactures. In the materials field, GE provides customers with Web-based tools for designing better plastic products. In software, a number of companies let people add custom-designed modules to their standard products and then commercialize the best of those components. Opensource software allows users to design, build, distribute, and support their own programs – no manufacturer required. Indeed, the trend toward customers as innovators has the power to completely transform industries. In the semiconductor business, it has led to a custom-chip market that has grown to more than $ 15 billion.
In the course of studying product innovation across many industries, we have discovered that a number of companies have adopted an intriguing approach, which at first seems counterintuitive. Essentially, these companies have abandoned their efforts to understand exactly what products their customers want and have instead equipped them with tools to design and develop their own products,ranging from minor modifications to major new innovations.The user-friendly tools,often integrated into a package we call a "tool kit for customer innovation," deploy new technologies like computer simulation and rapid prototyping to make product development faster and less expensive. 1
A variety of industries use this approach. Bush Boake Allen (BBA), a global supplier of specialty flavors to companies like Nestlé, has built a tool kit that enables its cus-
Tapping into customer innovation can certainly generate tremendous value, but capturing that value is hardly a simple or straightforward process. Not only must companies develop the right tool kit,they must also revamp their business models as well as their management mind-sets. When companies relinquish a fundamental task – such as designing a new product – to customers, the two parties must redefine their relationship, and this change can be risky. With custom computer chips, for instance, companies traditionally captured value by both designing and manufacturing innovative products. Now, with customers taking over more of the design task, companies must focus more intently on providing the best custom manufacturing. In other words, the location where value is both created and captured changes, and companies must reconfigure their business models accordingly. In this article, we offer some basic principles and lessons for industries undergoing such a transformation.
A Costly Problem – and a Radical Solution
In a nutshell, product development is often difficult because the "need"information (what the customer wants) resides with the customer, and the "solution"information (how to satisfy those needs) lies with the manufacturer. Traditionally, the onus has been on manufacturers to collect the need information through various means, including market research and information gathered from the field. The process can be costly and time-consuming because customer needs are often complex, subtle, and fast changing. Frequently, customers don't fully understand their needs until they try out prototypes to explore exactly what does,and doesn't,work (referred to as "learning by doing").
Not surprisingly, traditional product development is a drawn-out process of trial and error, often ping-ponging between manufacturer and customer. First, the manufacturer develops a prototype based on information from customers that is incomplete and only partially correct. The customer then tries out the product, finds flaws, and requests corrections.The cycle repeats until a satisfactory solution is reached,often requiring many costly and timeconsuming iterations.
To appreciate the extent of the difficulty,consider product development at BBA (now International Flavors and Fragrances). In this industry, specialty flavors are created to bolster and enhance the taste of nearly all processed foods because manufacturing techniques weaken the real flavors. The development of those added flavors requires a high degree of customization and expertise, and the practice remains more an art than a science.
a meaty flavor for a soy product, and the sample must be delivered within a week. BBA marketing professionals and flavorists jump into action, and the sample is shipped in six days.A frustrating three weeks ensue until the client responds with,"It's good, but we need it less smoky and more gutsy."The client knows precisely what that means, but BBA flavorists find the request difficult to interpret. The result is more frenzied activity as BBA struggles to adjust the flavor in a couple days.Depending on the product,BBA and the client could go back and forth for several more iterations. This represents a huge problem because clients often expect BBA to get the flavor right the first time, or within two or three iterations.
To make matters worse, BBA bears most of the development risk. The company collects revenue only after both the client and consumers are fully satisfied.R&D expenses could be just $ 1,000 for tweaking an existing flavor, but they could go as high as $ 300,000 for an entirely new family of flavors that require not only chemists and flavorists but also sales,marketing,regulatory,and quality control expertise. On average, the client eventually accepts only 15 % of all new flavors for full market evaluation, and only 5 % to 10 % make their way to the marketplace. Meanwhile, margins in the flavor industry have been falling because of increased competition and cost pressures from customers.
A traditional product development project at BBA might progress in the following way: A customer requests
In response, BBA's CEO Julian Boyden and VP of Technology John Wright investigated the option of shifting more innovation activities to customers. The company developed an Internet-based tool containing a large database of flavor profiles. A customer can select and manipulate that information on a computer screen and send his new design directly to an automated machine (perhaps located at the customer site) that will manufacture a sample within minutes. After tasting the sample, the cus-
A New Approach to Developing Custom Products
Traditionally, suppliers have taken on most of the work–and responsibility–of product development. The result has been costly and timeconsuming iterations between supplier and customer to reach a satisfactory solution. With the customers-as-innovators approach, a supplier provides customers with tools so that they can design and develop the applicationspecific part of a product on their own. This shifts the location of the supplier-customer interface, and the trial-and-error iterations necessary for product development are now carried out by the customer only. The result is greatly increased speed and effectiveness.
Traditional Approach
Customers-as-Innovators Approach
supplier
customer
supplier
interface
customer
advanced
development
design
build
(prototypes)
test (feedback)
advanced
development
design
build
(prototypes)
test (feedback)
interface
iterations
tomer can make any adjustments that are needed. If the flavor is too salty,for instance,he can easily tweak that parameter on the profile and have the machine immediately produce another sample.
It is important to note that outsourcing product development to customers does not eliminate learning by doing–nor should it. What it does is make traditional product development better and faster – for two reasons. First, a company can bypass the expensive and error-prone effort to understand customer needs in detail.Second,the trial-and-error cycles that inevitably occur during product development can progress much more quickly because the iterations will be performed solely by the customer.(For a basic illustration of the customers-as-innovators approach, see the exhibit "A New Approach to Developing Custom Products.")
But developing the right tool kit for customers is hardly a simple matter. 2 Specifically, tool kits must provide four important capabilities. First and most important, they must enable people to complete a series of design cycles followed by learning by doing. Computer simulation, for example, allows customers to quickly try out ideas and design alternatives with- out having to manufacture the actual products.When the simulation technology lacks the desired accuracy, it can be supplemented with rapid prototyping methods. Second, tool kits must be user-friendly. They should not require customers to learn an entirely new design language. (Flavorists, for example, think in terms of formulations and chemical compounds, whereas customers think of tastes such as smoky, sweet, fresh, and so on.) Third, they must contain libraries of useful components and modules that have been pretested and debugged. These save customers from having to reinvent the wheel.Instead,people can focus their efforts on the truly novel elements of their design. Fourth, tool kits must contain information about the capabilities and limitations of the production process that will be used to manufacture the product. This will ensure that a customer's design will in fact be producible.
An Industry Transformed
To understand the major impact that the customers-asinnovators approach can have, consider the history of the custom computer chip industry. The story holds several profound lessons about how the right tool kit can turn a market on its ear.
During the late 1970s, suppliers of custom chips experienced the same types of market dynamics that BBA has more recently encountered. (See the sidebar "When Customer Innovation Makes Sense.") At the time, a typical user of custom semiconductors, such as a toy manufacturer that needed circuitry to operate its robotic dog, might have hired a chip company to develop a custom
When Customer Innovation Makes Sense
From our research, we have identified three major signs that your industry may soon migrate to a customers-as-innovators approach:
1. Your market segments are shrinking, and customers are increasingly asking for customized products. As you try to respond to those demands, your costs increase, and it is difficult to pass those costs on to customers.
2. You and your customers need many iterations before you find a solution. Some customers complain that you have gotten the product wrong or that you are responding too slowly. You are tempted to restrict the degree to which your products can be customized, and your smaller customers must make do with standard products or find a better solution elsewhere. As a result, customer loyalty starts to erode.
3. You or your competitors use high-quality computer-based simulation and rapid-prototyping tools internally to develop new products. You also have computer-adjustable production processes that can manufacture custom products. (These technologies could form the foundation of a tool kit that customers could use to develop their own designs.)
design. Because that process was complicated and costly, the chip company could afford to undertake projects only for high-volume customers.
Then a handful of start-ups turned everything upside down. Companies like LSI Logic Corporation and VLSI Technology provided both large and small customers with do-it-yourself tools that enabled them to design their own specialized chips. Customers could benefit by getting what they wanted through their own experimentation, and the fledgling chip companies could profit by manufacturing those customer designs.The win-win solution was right on the money. Between the 1980s and today, the market for such custom integrated circuits has soared from virtually nothing to more than $ 15 billion, with the number of customers growing from a handful of high-volume buyers to hundreds of thousands of companies with very diverse end-user applications.
A key to that $ 15 billion market is the tool kit technology.In principle,outsourcing custom design to customers can help slash development times and costs, but customers are not experts in a supplier's business. So how could customers be expected to create custom designs that can be produced on a manufacturer's sophisticated process equipment? The answer to that was found in a major shift that had been taking place in the semiconductor industry.
Stefan Thomke is an associate professor of technology and operations management at Harvard Business School in Boston. Eric von Hippel is a professor of technology management and entrepreneurship at MIT's Sloan School of Management in Cambridge, Massachusetts.
Traditionally, specialized information used by a manufacturer to design and build custom products has been locked in the minds of the company's development engineers. This knowledge accumulates over decades of experience. In recent years, companies have been able to incorporate a considerable amount of this human expertise into computer-based tools. These CAD/CAM programs have grown increasingly sophisticated, and many now contain libraries of tested and debugged modules that people can simply plug into a new design. The most effective tools also enable rapid testing through computer simulation and provide links to automated equipment that can build prototypes quickly. This leadingedge technology, which manufacturers had been using internally, has become the basic building block for customer tool kits.
When LSI was founded in 1981, R&D engineers at large semiconductor companies were already using many elements of the customer tool kit, but there was no integrated system that less-skilled customers would be comfortable with. So LSI bought some of the pieces, made them customer-friendly by adding graphical user interfaces, and integrated them. The result was a packaged tool kit that let customers design their own chips with little support from LSI.
The brilliant insight that made possible a tool kit for less-skilled customers was that the design of the chip's fundamental elements, such as its transistors, could be standardized and could incorporate the manufacturer's solution information of how semiconductors are fabricated. Then, all the information the customer needed about how the chip would function could be concentrated within the electrical wiring that connects those fundamental elements. In other words, this new type of chip,called a "gate array,"had a novel architecture created specifically to separate the manufacturer's solution information from the customer's need information.As a result, all customers had to do was use a tool kit that could interconnect a gate array based on their specific needs. For its part, LSI had to rethink how to make its production processes more flexible so that it could manufacture the custom chips at low cost.
Customer tool kits based on gate-array technology offer the four major capabilities described earlier. They contain a range of tools, including those to test a design, that enable users to create their own prototypes through trial and error.They are customer-friendly in that they use Boolean algebra,which is the design language commonly taught to electrical engineers. They contain extensive libraries of pretested circuit modules. And they also contain information about production processes so that users can test their designs to ensure that they can be manufactured. Interestingly, more recent technology – chips called field programmable gate arrays (FPGAs) – enable the customer to become both the designer and the man- ufacturer. Essentially, FPGA tool kits contain design and simulation software and equipment that customers use to program chips for themselves.
The Benefits and Challenges
Well-designed customer tool kits,such as those developed for the creation of custom semiconductor chips, offer several major advantages over traditional product development. First, they are significantly better at satisfying subtle aspects of customer need because customers know what they need better than manufacturers do. Second, designs will usually be completed much faster because customers can create them at their own site. Third, if customers follow the rules embedded in a tool kit (and if all the technological bugs have been worked out), their designs can be manufactured the first time around.
There are also ancillary benefits. Tool kits enable a company to do business with small customers that might have been prohibitively expensive to work with before, thus expanding the accessible market–and the number of product innovations.By serving these smaller clients,tool kits also reduce the pool of unserved, frustrated potential customers who might turn to competitors or to new entrants into the market. Furthermore, they allow companies to better serve their larger, preferred customers. That's a benefit most suppliers wouldn't expect, because they'd assume that their bigger customers would want the traditional hand-holding to which they're so accustomed. Experience shows, however, that such customers are often willing to use a tool kit, especially when fast product turnaround is crucial.
Of course, tool kits will not satisfy every type of customer. For one thing, they are generally not able to handle every kind of design. Also, they create products that are typically not as technically sophisticated as those developed by experienced engineers at a manufacturer using conventional methods. So manufacturers may continue to design certain products (those with difficult technical demands) while customers take over the design of others (those that require quick turnarounds or a detailed and accurate understanding of the customer's need).
The business challenges of implementing a tool kit can be daunting. Turning customers into innovators requires no less than a radical change in management mind-set. Pioneers LSI Logic and VLSI Technology were successful because they abandoned a principle that had long dominated conventional management thinking at leading companies like IBM, Intel, and Fujitsu. For many years, these companies had assumed that their interests would best be served by keeping design expertise, tools, and technologies away from customers.In contrast,LSI,VLSI, and the other industry upstarts understood that they needed to do just the opposite by putting robust, userfriendly tool kits into customers' hands.
Such a dramatic shift in mind-set required a thorough rethinking of well-entrenched business practices. In essence,a company that turns its customers into innovators is outsourcing a valuable service that was once proprietary, and the change can be traumatic if that capability has long been a major source of competitive advantage. For example, a common problem is resistance from sales and marketing departments, which have traditionally been responsible for managing relationships with customers and providing first-class service to them.With tool kits, computer-to-computer interactions replace intense person-to-person contact during product development.In other words, customers who design products themselves have little need for a manufacturer's sales or marketing department to determine what they need. If this change affects the compensation of sales representatives in the come customers. That information is then relayed to an e-marketing staff. Today, the Web site attracts about a million visitors per year who are automatically screened for potential sales; that information accounts for nearly one-third of all new customer leads, thus fueling much of GE Plastic's growth. And because the cost of acquiring new business has decreased, GE Plastics can now go after smaller customers it might have ignored in the past. Specifically, the sales threshold at which a potential customer becomes attractive to GE's field marketing has dropped by more than 60 % .
The on-line tools have also enabled GE Plastics to improve customer satisfaction at a lower cost. Before the Web site, GE Plastics received about 500,000 customer calls every year. Today, the availability of on-line tools has slashed that number in half. In fact, customers use the
field,it could easily derail any efforts to alter the company's business model. As a result, senior management needs to face these issues head-on – for example, by determining how the sales and marketing functions should evolve and by using specific incentives to induce employees to support the transformation. (For more on how to adapt your business practices, see the sidebar "Five Steps for Turning Customers into Innovators.")
To better understand these issues, consider GE Plastics, which recently made the bold move of introducing some elements of a Web-based customer tool kit. Doing so required GE Plastics to rethink its sources of competitive advantage and to develop new business models that forced major changes,including the ways in which its sales and marketing staff acquired new customers. The company's story holds several valuable lessons.
GE Plastics does not design or manufacture plastic products but sells resins to those that do, and the properties of those resins must precisely match that of both the end product (a cell phone,for instance) as well as the process used to manufacture that product. With the formation of the Polymerland division in 1998, GE Plastics allowed customers to order plastics on-line and later took the step of making 30 years of its in-house knowledge available on a Web site. Registered users were given access to company data sheets, engineering expertise, and simulation software. Customers could use that knowledge and technology to conduct their own trial-and-error experiments to investigate, for example, how a certain grade of plastic with a specific amount of a particular type of reinforcement would flow into and fill a mold. The approximate cost of bringing such sophisticated tools on-line: $ 5 million.
GE Plastics,of course,did not make the investment simply to be magnanimous. Through the Web site, the company identifies and tracks people likely to be-
Five Steps for Turning Customers into Innovators
1. Develop a user-friendly tool kit for customers.
* The tool kit must enable customers to run repeated trial-and-error experiments and tests rapidly and efficiently.
* The technology should let customers work in a familiar design language, making it cheaper for customers to adopt your tool kit.
* The tool kit should include a library of standard design modules so customers can create complex custom designs rapidly.
* The technology should be adapted to your production processes so that customer designs can be sent directly to your manufacturing operations without extensive tailoring.
2. Increase the flexibility of your production processes. Your manufacturing operations should be retooled for fast, lowcost production of specialized designs developed by customers.
3. Carefully select the first customers to use the tool kit. The best prospects are customers that have a strong need for developing custom products quickly and frequently, have skilled engineers on staff, and have little experience with traditional customization services. These customers will likely stick with you when you are working out the system's bugs.
4. Evolve your tool kit continually and rapidly to satisfy your leading-edge customers.
Customers at the forefront of technology will always push for improvements in your tool kit. Investments in such advancements will likely pay off, because many of your customers will need tomorrow what leading-edge customers desire today.
5. Adapt your business practices accordingly.
* Outsourcing product development to customers will require you to revamp your business models to profit from the shift. The change might, for instance, make it economically feasible for you to work with smaller, low-volume customers.
* Tool kits will fundamentally change your relationship with customers. Intense person-to-person contact during product development will, for example, be replaced by computer-to-computer interactions. Prepare for these changes by implementing incentives to reduce resistance from your employees.
tools more than 2,000 times a week. To encourage the rapid adoption of its tool kit, GE Plastics runs about 400 e-seminars a year that reach roughly 8,000 customers. The company hopes that this effort will help encourage product engineers to design parts made of plastic (and GE resins) when they might otherwise have opted for metal or other materials.
A Pattern of Migration
Perhaps the most important lesson to be learned from GE Plastics is that a company that adopts the customers-asinnovators approach must adapt its business accordingly. Furthermore, we've found that because the value that tool kits generate tends to migrate, a company must continually reposition itself to capture that value.
When a supplier introduces a tool kit, the technology first tends to be company specific: The designs can only be produced in the factory of the company that developed the tool kit. This creates a huge short-term advantage for the pioneering supplier, which can reduce its custom design costs because they are partially outsourced to customers. That, in turn, enables the supplier to serve more customers.And because the customer's designs must be produced on the supplier's system,the supplier doesn't risk losing any business.
Of course, customers would prefer the advantages of a tool kit without the associated loss of leverage.In the long run,this type of solution tends to emerge: Customer pressure induces third parties to introduce tool kits that can create designs to fit any supplier's manufacturing process. Or, in a slight variation, customers complain until a company that owns a dominant tool kit is forced to allow a spin-off to evolve the technology into a supplier-neutral form. Then, customers are free to shop their designs around to competing manufacturers.
In other words, one long-term result of customer tool kits is that manufacturers lose a portion of the value they have traditionally delivered. But if the conditions are ripe for the technology to emerge in a given industry and if customers will benefit from it – and our research shows that they will – then suppliers really don't have a choice. Some company will eventually introduce a tool kit and reap the short-term advantages. Then, others must follow. In the case of custom chips, Fujitsu initially resisted making its in-house design technology available to customers, thinking the move was too risky. (See the exhibit "Creating Value with Customers as Innovators.") But after LSI introduced a tool kit and began to establish itself in the market, Fujitsu and others were forced to play catch-up.
But the loss of leverage by customers represents a fundamental shift. Traditionally, in the field of specialized industrial products, companies interested in a customer's business develop a custom design and submit it for evaluation. The customer picks the proposal from one supplier, and the others are saddled with a loss for their time and investment.A tool kit tied to a single supplier changes that dynamic: A customer that develops a design using the tool kit cannot ask for competing quotes because only one company can manufacture it.
Questions of Value
Predicting where value will migrate–and knowing how to capture it – will be crucial as customer tool kits become more widespread. So far, the customers-as-innovators approach has mainly emerged in the B2B field, but numerous signs indicate that it is also spreading to the B2C arena. Many companies already offer so-called "product configurators" that enable consumers to obtain a masscustomized version of a standard product.Dell customers, for example, can select various components (a disk drive,
Creating Value with Customers as Innovators *
In the electronics market, suppliers have traditionally been the designers of full-custom and applicationspecific integrated circuits (light green, with a compound annual growth rate of about 12 % ). During the 1990s, tool kits based on gate-array and standard-cell technologies (medium green, with a CAGR of about 13 % ) enabled customers and third parties to also become product innovators. With field programmable technology (dark green, with a CAGR of about 29 % ), customers take on primary responsibility for custom circuit design, creating great value in the industry.
* Figures are from World Semiconductor Trade Statistics for custom metal-oxide semiconductor (MOS) logic, a dominant technology for digital circuits.
What Mass Customization Is–and Isn't
Imagine a mass manufacturer that could customize products for each of its customers. Economically, that would require two things: first, learning how to design specialized products efficiently (the R&D problem), and, second, learning how to manufacture those goods cheaply and quickly (the production problem).
can buy a Dell computer by picking the major components they want (the size of the hard drive, the kind of monitor, the number and types of memory modules, and so on) from a menu on a Dell Web site. The company assembles and delivers the custom products in days.
The second problem has been addressed by the popular concept of masscustomized production. In that approach, computerized process equipment or flexible assembly procedures can be adjusted quickly and inexpensively so companies can make single-unit quantities of one-ofa-kind products at a cost that is reasonably competitive with the manufacture of similar, mass-produced items. The classic example is Dell Computer: Consumers
But Dell's mass-customization approach does not address the first problem: learning how to design novel custom goods efficiently. The company's customers have only a limited number of standard components and combinations to choose from, leaving them little room for creativity or real innovation. What if someone wants a computer that cannot be assembled from those standard components, or what if that person is uncertain that a particular product will actually fulfill her needs? For instance, will the computer she's assembled be able to run the latest game software without crashing? Unless customers can test a computer design that they've assembled before placing the order, they can't perform the trial-and-error experiments needed to develop the product best suited to their needs. In other words, with mass customization, the cost of manufacturing unique products has dropped, but the cost of designing such items has not.
The approach presented in this article–using tool kits that enable customers to become innovators–targets the first problem; its goal is to provide customers with enough creative freedom to design innovative custom products that will truly satisfy their needs.
monitor,memory modules,and so on) from a menu to assemble the computer best suited to their needs. Eyeglass frames, automobiles, and even Barbie dolls can be similarly configured. In fact, no application seems too trivial. General Mills is planning to introduce a Web site that will allow consumers to mix and match more than 100 ingredients to create their own breakfast cereal.Although such product configurators are currently limited in what they can do (for one thing, they don't allow a user to try out a design, either through a prototype or a computer simulation), future versions could approach the functionality of true customer tool kits and allow for radically new innovations. (See the sidebar "What Mass Customization Is–and Isn't.")
The growing popularity of open-source software could touch off such a revolution. Consider what has happened to companies that sell software for Linux, an operating system that is virtually free. Recently, IBM took the bold step of placing $ 40 million of in-house tools for developing software into the public domain to encourage people to write programs that run on Linux. IBM is hoping that the move will help make Linux a widespread standard and that the company will make money by selling specialized Linux software applications, the hardware to run them, and consulting services. Other Linux companies like Red Hat are focusing on packaging, distribution, and support.
Producers of information products,especially software, will perhaps feel the biggest impact. Companies like Microsoft have long relied on customers to beta-test new products. Now other companies have taken that concept to the next level. Stata, which sells a software package for performing complex statistical analyses, encourages its customers to write software add-on modules for performing the latest statistical techniques; the company then adapts and incorporates the best of those into its next release.
The danger to software companies is that production is essentially free, so the customer might one day massdistribute copies of a custom program with the simple press of a button. If that practice becomes widespread, a truly effective tool kit might itself become the product, forcing companies to adapt quickly to the dramatic change.Or users might abandon their status as customers altogether, collaborating to design and build their own tool kits as well as their own specialized programs.
Outsourcing a portion of the innovation task to customers can be an effective approach for speeding up the development of products better suited to customer needs. The approach also holds the power to turn markets topsyturvy, creating and shifting value at three separate levels: the industry as a whole, companies that implement the technology, and customers that take advantage of it. Exactly where that value will be generated and how it might best be captured are the multimillion dollar questions facing companies competing in industries that are being transformed by customers as innovators.
1. Stefan Thomke,"Enlightened Experimentation: The New Imperative for Innovation,"HBR February 2001.
2. Eric von Hippel,"Perspective: User Toolkits for Innovation," Journal of Product Innovation Management, July 2001.
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TAYSIDE AND CENTRAL SCOTLAND TRANSPORT PARTNERSHIP
14 DECEMBER 2021
DIRECTOR'S REPORT
The report provides asks the Partnership to note the resignation of Heather Anderson; provides the Partnership with updates on the Bus Alliances, MaaS ENABLE project, ScotRail timetable consultation and Strategic Transport Projects Review. The Partnership is also asked consider responses to various ongoing consultations.
1 RECOMMENDATIONS
1.1 That the Partnership:
(i) notes resignation of Heather Anderson, agrees to appoint another nonelected member to the Executive Committee and considers when to advertise for a new non-elected member;
(ii) notes updates on the Bus Alliances, MaaS ENABLE project, ScotRail timetable consultation and Strategic Transport Projects Review;
(iii) considers and approves a proposed response to NHS Scotland draft climate emergency and sustainability strategy consultation, as outlined in Appendix A;
(iv) delegates authority to the Executive Committee to consider and approve a response to Transport Scotland's consultation on Aviation Strategy;
(v) delegates authority to Director to respond to Transport Scotland's NTS2 Delivery Plan Impact Assessment consultation and Sestran's RTS consultation; and
(vi) notes the publication of the Draft NPF4 and agrees to consider and approve a proposed response at the next Partnership meeting in March 2022.
2 DISCUSSION
Non-Councillor Member
2.1 Heather Anderson has resigned from the Tactran Board as of 1 December 2021. The Director would like to thank Heather for her positive input and engagement throughout her time on the Tactran Board.
2.2 Heather was also the non-elected member representative on the Executive Committee of the Tactran Partnership. It is recommended that the Board consider and agree a replacement to undertake the non-elected member role on the Executive Committee.
2.3 The Board is also asked to consider whether to advertise and appoint a replacement non-elected member now or to wait until the Board meets after the Local Government elections in May 2022. It should be noted that the Board can operate with 4 or 5 non-elected members and with Heather's resignation there will still be 4 individuals undertaking this role.
Bus Alliances Update
2.4 At its meeting on 15 December 2020 Tactran members were informed of a Bus Partnership Fund (BPF) and that Tactran was involved in two Bus Alliances covering the Forth Valley area and the Tayside area, together with the relevant Local Authorities and Bus Operators (report RTP/20/44 refers). The BPF is intended to tackle the negative impact of congestion on bus services so that bus journeys are quicker and more reliable – encouraging more people to travel by bus. As noted at the Partnership meeting in September 2021 both Tayside and Forth Valley bus alliances were awarded BPF funding.
2.5 The award to Tayside Bus Alliance by Transport Scotland was £497k to undertake the STAG appraisal of 20 corridors included in the bid and noted other measures, such as Park & Choose would only be considered where there is a clear link to bus priority measures. An additional £90,000 funding for the provision of a Project Manager was subsequently awarded.
2.6 The lead administrative authority in the Tayside Bus Partnership Fund award is Dundee City Council. A project brief was agreed by all Tayside Bus Alliance partners and used as the basis for an Invitation to Tender being promoted by Dundee City Council, with the aim of having a consultant procured and in place to commence work in January 2021.
2.7 Preparation for the Project Manager post has been made with a job description and person specification agreed by Alliance partners. Following a job sizing exercise, the post will be advertised shortly with the intention that the appointment would sit within Tactran.
2.8 The award to Forth Valley Bus Alliance by Transport Scotland was £500k to undertake the STAG appraisal of 5 corridors included in the bid and to focus on evidence of how the proposals on these corridors will encourage modal shift and reduce emissions.
2.9 The lead administrative authority in the Forth Valley Bus Partnership Fund award is Falkirk Council. A project brief was agreed and used as the basis for an Invitation to Tender being promoted Work is on-going by the FVBA to ensure that both a consultant and Programme Manager are in place for early next year, so that we remain on target for achieving the deadlines as set out within the BPF. Additional work has also been undertaken which incorporates close
partnership working with both the Tayside Bus Alliance and the Fife Bus Partnership. The aim of which will maximise the benefits to bus passengers in relation to bus priority throughout these three regions.by Falkirk Council, with the aim of having a consultant procured and in place to commence work in early 2021.
MaaS ENABLE projects update
2.10 Tactran was awarded £550,112 from Transport Scotland's MaaS (Mobility as a Service) Investment Fund Round1 and £90,000 from Paths for All in 2019, with Tactran providing £120,000, to develop and trial a MaaS pilot (Report RTP/20/13 refers). Transport Scotland has subsequently provided a further £12,000 for additional work required. The project involves developing a MaaS platform (the 'back office' enabling the planning, booking and paying of transport services) and associated touchpoints (app and url) to assist users access NHS Tayside (specifically Perth Royal Infirmary), Loch Lomond and the Trossachs National Park and Dundee & Angus College.
2.11 The intended launch date for the pilots going live was September 2020. However, as a consequence of the covid-19 pandemic, the project was delayed. With the easing of restrictions, the pilots were launched September 2021. Further information is available by the links below:
Tactran ENABLE website
Go NHS Tayside (website)
myD&A (App Store or Google Play - search for@ "MyD&A Travel")
National Park Journey Planner (website and app)
2.12 The pilots will remain live until August 2022. The objective of the work is for the MaaS Platform to become financially sustainable in order for it to be a tool to support access to services and promote sustainable travel. During the live pilots, the project will 'experiment' with promotions / features / incentives to understand what works best in attracting and retaining users.
2.13 If the Tactran ENABLE pilots demonstrates that the MaaS tool is an effective and efficient means of making the best use of existing transport services to access jobs, education and services, then more touchpoints (e.g. apps) for public sector services would improve the sustainability of the tool in the long term.
2.14 If they have become financially sustainable by August 2022, or additional funding has been found, the project will continue. Reports on the progress of the pilot will be brought to future Partnership meetings.
ScotRail Consultation Update
2.15 ScotRail launched its consultation 'Fit for the Future' on a proposed May 2022 timetable on 20 August 2021, with a deadline for responses by 1 October 2021. Tactran members considered and approved a response that was submitted to ScotRail in advance of the deadline.
2.16 ScotRail have noted that they are delighted at the level of dialogue generated by their 'Fit for the Future' timetable consultation and thank all of those who have engaged in the process, in particular those who took the time to submit responses. This is the first time a national consultation has been held in Scotland on detailed rail service timetables. ScotRail received more than 3,500 submissions from members of the public and 100 responses from stakeholders.
2.17 ScotRail have now reviewed all the submissions and are developing options to improve their proposals so that rail services continue to meet the needs of as many customers as possible, within the resource constraints that all are collectively facing as a result of the COVID-19 pandemic. These will be reviewed with Transport Scotland and further assessments undertaken if required. Once agreed, ScotRail will publish a report which summarises the consultation feedback and their response to it. Due to the large volume of responses received, this process will take a few months.
Strategic Transport Projects Review 2 Update
2.18 The second Strategic Transport Projects Review (STPR2) will create the evidence basis for future transport investment decisions by the Scottish Government for the next 20 years. It will also set out how the recommended investments will contribute to Net Zero, Inclusive Growth and our second National Transport Strategy vision is for a sustainable, inclusive, safe and accessible transport system helping deliver a healthier, fairer and more prosperous Scotland for communities, businesses and visitors.
2.19 STPR2 is now nearing completion and has considered the performance of options against the transport outcomes sought, the Transport Planning Objectives, which are aligned to our National Transport Strategy priorities and outcomes. It has also considered Value for Money based on performance against these objectives and the five Scottish Transport Appraisal Guidance Criteria. This also takes into account risks, uncertainties and other factors such as affordability, deliverability and the wider acceptability of options. Elements of the emerging draft recommendations were presented to the Tay Cities and Forth Valley - Regional Transport Working Groups in mid-November. Full details, including the supporting appraisal will be published alongside the draft recommendations.
2.20 Also underpinning STPR2 is the Sustainable Investment Hierarchy which aims first to reduce the need to travel unsustainably, make better use of and enhance existing infrastructure, before investing in new capacity. This hierarchy is also central to Infrastructure Investment Plan. STPR2 will conclude this winter, with
publication of the draft recommendations for investment and be followed by an appropriate statutory consultation period.
Consultations
NHS Scotland Draft Climate Emergency and Sustainability Strategy (20222026)
2.21 The Scottish Government and NHS Scotland Assure have developed a draft Climate Emergency and Sustainability Strategy 2022 to 2026 for NHS Scotland, which was published on 10 November 2021 and is open for consultation until 10 February 2022.
2.22 The Draft Strategy sets out how NHS Scotland should respond to the Climate Emergency. Accordingly, it covers all aspects of NHS operations which could impact on greenhouse gas emissions. As would be expected, it sets out what it should do to:
- reduce the need to travel
- promote active travel
- promote public and community transport
- decarbonise fleet and business travel
- respond to the impact of climate change on the ability to access
2.23 All the activities identified in the Draft Strategy are supported. Given that the scale of change to meet the Government's targets on reducing greenhouse gas emissions is challenging, and that NHS Boards are the biggest public sector agencies across all areas of Scotland, there is no doubt that the scale of change required for the NHS needs to be significant.
2.24 It is proposed that Tactran respond to the consultation:
- welcoming the Strategy and its proposed transport and travel actions
- highlighting that the Transport (Scotland) Act 2005 requires NHS Boards to perform their functions in line with respective RTS's. Hence Tactran would welcome the opportunity to support NHS Tayside and NHS Forth Valley in identifying, delivering and monitoring transport and access interventions
- emphasising that the targets to reduce the number of journeys taken by car (staff, patients and visitors) required by the draft strategy are critical to the process, and if not met, must trigger a 'ramping up' of activity.
2.25 A proposed response has been prepared and is included at Appendix A, which the Partnership is asked to consider and approve for submission by the deadline. The approved response will also be forwarded to NHS Tayside and NHS Forth Valley.
Aviation Strategy
2.26 On 18 October 2021 Transport Scotland published a discussion document to inform the development of an Aviation Strategy, with all responses to be returned by 21 January 2022.
2.27 This consultation seeks views on how to realise the vision for aviation:
"For Scotland to have national and international connectivity that allows us to enjoy all the economic and social benefits of air travel while reducing our environmental impact."
2.28 It covers the transition to low and zero emission aviation, Scotland's international connectivity, Scotland's domestic connectivity and air freight.
2.29 The Partnership is asked to delegate authority to the Executive Committee to consider and approve a response to Transport Scotland's consultation on Aviation Strategy.
NTS2 Delivery Plan – Impact Assessment Consultation
2.30 On 3 November 2021 published NTS2 Delivery Plan Impact Assessments for consultation, with a deadline for responses of 5 January 2022.
2.31 Scotland's National Transport Strategy 2 (NTS2) sets out the vision for Scotland's transport system to the year 2040. The NTS2 outlines the four priorities for the transport system:
- Reduces inequalities
- Takes climate action
- Helps deliver inclusive economic growth
- Improves our health and wellbeing.
2.32 The first NTS2 Delivery Plan sets out strategic policies and the broad actions the Scottish Government is taking to deliver on its vision and priorities to the end of March 2022, taking account of the impact of the COVID-19 pandemic.
2.33 Impact assessments are being undertaken on 37 strategic policies within the NTS2 Delivery Plan and we would like to get your views on the initial screening of impacts through this consultation survey. The impact assessments are:
- Social and Equality Impact Assessment (SEQIA (incorporating an Equality Impact Assessment (EqIA), Children's Rights and Wellbeing Impact Assessment (CRWIA), Fairer Scotland Duty Assessment (FSDA).
- Island Communities Impact Assessment (ICIA)
- Health Inequality Impact Assessment (HIIA)
- Business Regulatory Impact Assessment (BRIA)
2.34 Due to the technical nature of these assessments the Partnership is asked to delegate authority to the Director to respond to Transport Scotland's NTS2 Delivery Plan Impact Assessment consultation
Sestran Draft Regional Transport Strategy to 2035
2.35 On 5 November 2021 Sestran commenced consultation on their draft Regional Transport Strategy to 2035, with the consultation period ending on 11 February 2022.
2.36 A Virtual Engagement Hub has been created and gives access to the draft RTS and all supporting documentation including the Strategic Environmental Assessment (SEA) and the Equalities Impact Assessment (EqIA). Views on the draft RTS are welcome and a short survey accessed via the Hub can be completed to make it easy to give your views and comments on the draft RTS.
2.37 The Partnership is asked to delegate authority to the Director to engage with Sestran and respond to Sestran's Regional Transport Strategy consultation.
Draft Fourth National Planning Framework (Draft NPF4)
2.38 On 10 November 2021, the Scottish Government laid the draft Fourth National Planning Framework (Draft NPF4) in the Scottish Parliament. Alongside Parliamentary scrutiny of the draft, a public consultation to invite comments on the content of the draft is being undertaken. The consultation on Draft NPF4 closes on 31 March 2022.
2.39 The National Planning Framework (NPF) is a long-term plan for Scotland that sets out where development and infrastructure is needed. Scotland's fourth National Planning Framework (NPF4) will be a long-term plan looking to 2045 that will guide spatial development, set out national planning policies, designate national developments and highlight regional spatial priorities.
2.40 Following the consultation and the end of the Parliamentary scrutiny process, the responses will be analysed and a final NPF4 produced. The final adoption date will depend on the approval of NPF4 by the Scottish Parliament, but the aim is to lay a finalised version for approval by summer 2022.
2.41 The Partnership is asked to note the publication of the Draft NPF4 and agree to consider and approve a proposed response at the next Partnership meeting in March 2022.
Regional Cycle Training & Development Officer
2.42 In July 2021, Marianne Scott (Regional Cycle Training & Development Officer) was recognised with the 100 Women in Cycling 2021 awards as a cycle influencer for the work she had done during lockdown in her own time providing the local community in my hometown with free bike servicing from my house. Repairing and replacing parts for free to ensured that individuals could cycle
freely without having to fork out money in an area that is rural, remote and in a high area of deprivation.
3 CONSULTATIONS
3.1 Elements of the report have been the subject of consultation with partner Councils, other RTPs, Transport Scotland and other partners/stakeholders, as appropriate.
4 RESOURCE IMPLICATIONS
4.1 This report has no direct or additional financial or other resource implications.
5 EQUALITIES IMPLICATIONS
5.1 This report has been screened for any policy implications in respect of Equality Impact Assessment and no major issues have been identified.
Mark Speed Director
For further information email firstname.lastname@example.org or tel. 07919 698611
NOTE
Papers, as defined by Section 50D of the Local Government (Scotland) Act 1973 (and not containing confidential or exempt information) were relied on to a material extent in preparing this Report:
Report to Partnership RTP/20/13 Mobility as a Service: 'ENABLE' Pilot, 17 March 2020
Reports to Partnership RTP/20/41 2020/21 Budget and Monitoring and RTP/20/44, Director's Report, 15 December 2020.
Reports to Executive Committee RTP/21/18 Dundee City Council Proposed Low Emission Zone: Consultation Response and RTP/21/19, East Coast Main Line May 2022 Timetable Consultation and, 20 July 2021
Guidance Publication Consultation draft of:
Title - NHS SCOTLAND CLIMATE EMERGENCY AND SUSTAINABILITY - DRAFT STRATEGY 2022 TO 2026
Consultation period expires:
10 th February 2022
Comments to be sent to: email@example.com
Name: Jonathan Padmore
Organisation:
Tactran (Tayside and Central Scotland Regional Transport Partnership)
Email address:
firstname.lastname@example.org
Date:
14 th December 2021
| Paragraph No. | Page | Comment |
|---|---|---|
| | p29- p37 | Tactran welcome the Strategy and its proposed transport and travel actions. |
| | p36- p37 | The Transport (Scotland) Act 2005 requires NHS Boards to perform their functions in line with respective RTS’s. Hence Tactran would welcome the opportunity to support NHS Tayside and NHS Forth Valley in identifying, delivering and monitoring transport and access interventions |
| 8 | p30 | The targets to reduce the number of journeys taken by car (staff, patients and visitors) required by the draft strategy are critical to the process, and if not met, must trigger a ‘ramping up’ of activity. Progress against outcome targets (e.g. mode share) may take a few years to see. Tracking the delivery of interventions will be particularly important in the early years of this work. |
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[Insert additional rows as required]
draft Climate Emergency and Sustainability Strategy 2022 to 2026 for NHS Scotland,
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The Marriage Crisis and the Eucharist
1. Introduction.
The theme "The Vocation and Mission of the Family in the Church and Contemporary World," suggests that the next General Assembly of the Synod (4 to 25 October 2015) intends above all to propose positively the beauty and effectiveness of the Christian family as evangelizers. For my part, I firmly believe that the main pastoral urgency today is the formation of exemplary Christian families, which are able to give concrete witness to the fact that Christian marriage is beautiful and possible to fulfil. It is they who can proclaim the Gospel of the family: "Instead of seeming to impose new obligations, they should appear as people who wish to share their" (Francis, Evangelii Gaudium, 14).
In my opinion, in a post-Christian cultural context such as ours, the necessary tasks for a pastoral care of the family upon which the Church should, at every level, concentrate its energy, are as follows:
a. A theoretical and practical education of children and young people to Christian love, understood as self-giving to others and as a communion which respects differences;
b. A major marriage preparation for engaged couples, in order that it be valid and fruitful, by means of itineraries tailored to the various spiritual, cultural, and social situations;
c. Ongoing formation of the spouses, especially young couples, by means of periodic meetings inserted within the yearly pastoral programs, and presented by suitable agents (e.g., mentor married couples), and with due regard for the respective input of small communities, movements, and associations.
With this said, I now come to the main subject of my concern, one which is both difficult and important, and upon which I intend to offer my contribution for reflection in preparation for the next Synodal Assembly. Namely: the possibility of allowing the divorced and remarried into Eucharistic communion, together with their respective partners.
My argument seeks to keep to the two wise and necessary attitudes, as appropriately suggested by Pope Francis. That is: parrhesia and humility; to sincerely express one's thoughts and to listen to others with both respect and a willingness to receive brotherly correction towards conversion. Only in this way can we enrich each other and proceed together towards truth and goodness.
The main issues of my reflection are as follows: the coherent and flawless nature of the pastoral practices authorized so far; the various proposed changes and objections to these; the weaknesses of the so-called law of gradualness and its proposals for the introduction of general criteria for the giving Holy Communion to the divorced and remarried and their partners; the firmly established doctrine concerning the indissolubility of Christian marriage;
oblative love in relation to the validity of marriage; the authentic evangelization necessary for a fruitful missionary apostolate. Finally, allow me to draw your attention most especially to numbers 4, 5, 6, and 9.
2. Doctrinal and disciplinary standpoints currently in force
Sacramental marriage, both ratified and consummated, is indissoluble by virtue of Christ's will. Any division among the spouses is against His will. Any new union of a separated spouse is illicit and constitutes a persistent grave moral disorder; it creates a situation that objectively contradicts the nuptial covenant between Christ and the Church, as signified and effected by the Eucharist. Therefore, the divorced and remarried cannot be allowed to receive Holy Communion, first of all, due to a theological reason, and then, by virtue of the pastoral order. "The Church reaffirms her practice, which is based upon Sacred Scripture, of not admitting to Eucharistic Communion divorced persons who have remarried. They are unable to be admitted thereto from the fact that their state and condition of life objectively contradict that union of love between Christ and the Church, which is signified and effected by the Eucharist. Besides this, there is another special pastoral reason: if these people were admitted to the Eucharist, the faithful would be led into error and confusion regarding the Church's teaching about the indissolubility of marriage" (Familiaris Consortio, 84).
This exclusion from Eucharistic Communion continues throughout the entire period of time of any illicit conjugal life. "If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God's law. Consequently, they cannot receive Eucharistic communion as long as this situation persists" (Catechism of the Catholic Church, 1650). This exclusion does not discriminate against the divorced and remarried compared to other situations of grave objective disorder and public scandal. Whoever has a habit of swearing should make serious efforts to correct himself; whoever has committed theft must makes restitution; whoever has harmed his neighbor, whether materially or morally, needs to repair the harm. Without a real commitment towards conversion, there can be no sacramental absolution and admission to the Eucharistic Communion. No one should be admitted who "obstinately persevere[s] in manifest grave sin" (Code of Canon Law, c. 915). It does not seem possible to make an exception for the divorced and remarried who are not committed to
Exclusion from the Eucharistic Communion does not mean exclusion from the Church, but only an incomplete communion with her. The divorced and remarried continue to be members of the Church; they can and should participate in the Church's life and activities. On the other hand, other believers and especially pastors must welcome them with love, respect, and care, involving them within the life of the Church, encouraging them to do good with generosity, and to trust in God's mercy. "[T]o help the divorced, and with solicitous care to make sure that they do not consider themselves as separated from the Church, for as baptized persons they can, and indeed must, share in her life. They should be encouraged to listen to the word of God, to attend the Sacrifice of the Mass, to persevere in prayer, to contribute to works of charity and to community efforts in favor of justice, to bring up their children in the Christian faith, to cultivate the spirit and practice of penance and thus implore, day by day, God's grace. Let the Church pray for them, encourage them and show herself a merciful mother, and thus sustain them in faith and hope. […] With firm confidence she believes that those who have rejected the Lord's command and are still living in this state will be able to obtain from God the grace of conversion and salvation, provided that they have persevered in prayer, penance and charity" (Familiaris Consortio, 84).
The doctrinal and pastoral affirmations of Familiaris Consortio were confirmed 26 years later by Benedict XVI's Sacramentum Caritatis, and with no significant changes (n. 29).
Some additional indication is found instead in another text of St. John Paul II, Reconciliatio Poenitentia, which was issued shortly after the Familiaris Consortio, and which it explicitly cites. The Pope speaks of Christians who come to find themselves in "particularly delicate and almost inextricable," including which he speaks of the divorced and remarried, and those who live in "irregular situations." In their cases, two complimentary principles must be adhered to: the principle of "compassion and mercy" and the principle of "truth and consistency." In light of these, you can walk towards "full reconciliation at the hour that providence alone knows." "Basing herself on these two complementary principles, the church can only invite her children who find themselves in these painful situations to approach the divine mercy by other ways, not however through the sacraments of penance and the Eucharist until such time as they have attained the required dispositions" (Reconciliatio et Poenitentia, 34).
Thus, whoever makes a serious effort in the Christian way of life will receive sooner or later the grace of full conversion and reconciliation, in order to receive the sacraments, or at least the grace to attain eternal salvation at the end of earthly life. In this perspective, firm belief in mercy and respect for truth are brought into harmony.
According to the same document, the path that paves the way for full reconciliation also includes "the frequent repetition of acts of faith, hope, charity and sorrow made as perfectly as possible" (ibid.). They are intimate acts that only God can see and judge. Perhaps they do not reach the perfection that is necessary for the justification of the sinner, but they at least help its preparation. Something similar can be said about the so-called spiritual communion. This term underlines participation in divine life, which is the fruit of the Eucharistic sacramental communion. However, this issue does not form part of this presentation, as the focus is instead, to consider what happens in cases where sacrament is lacking. Spiritual communion refers to the desire to receive the Eucharist either by one who is justified, yet is unable to receive for accidental circumstances, or by a sinner who is prevented from receiving it due to his or her moral situation, which is incompatible with the Eucharist. Through this desire, the former receives an increase in sanctifying grace; the latter receives help to prepare himself or herself to full conversion and justification. In both cases, the desire to receive the Eucharist is good and ideal for the development of the person's relationship with the Lord. The pastoral position until now in force and which I have presented, concerns above all the divorced and remarried; but Familiaris Consortio also gives similar instructions concerning those living together without any institutional bond (FC 81) and Catholics who are only married (FC 82). Although their situation may, in some aspects, be of increased moral disorder, the treatment offered to these is practically the same: no admission is allowed as regards the sacraments of Penance and the Eucharist; welcoming them into the life of the Church; being close to them with due respect and at their own level, so as to get to know them on an individual basis, and thus direct and accompany them towards an eventual regular state of life.
3. Perfectibility of the Current Practice
The current position of the Church's doctrine and discipline on remarried divorcees and those who cohabit, is consistent and solidly based in Scripture and Tradition. However, there is widespread dissatisfaction with this position. Many irregular couples perceive exclusion from the Eucharistic communion as total exclusion from the Church. They feel rejected by the Church and no longer experience God's merciful nearness. They are tempted to leave the Church community and to lose faith.
It is obvious that the first remedy should be to further the efforts made to implement the wise directives of the Magisterium. Yet, some propose to add more concrete and specific ways of caring for irregular couples, so as to give greater importance and visibility to their church membership and to support their spiritual life more effectively. Some tasks in the Church, which up to now have been prohibited for the divorced and remarried, could be more largely entrusted to them, unless it is advised otherwise by tasks that require an exemplary life. Celebrations intended for their spiritual progress could be created for them (and for those cohabiting). The non-admission to the Eucharist could be replaced by a gesture of the blessing, as is sometimes done with non-Catholic Christians. The most challenging proposal concerns the establishment of a specific path, intended to help to better discern and accomplish God's will in one's life: a path that is personal and shared in small communities, a path that involves reflection and dialogue, prayer and listening to the Word, church, family and social commitment, as well as charitable service; a journey prolonged in time, until the situation that is incompatible with the Eucharist is eventually overcome, or even until the end of the earthly life, with living trust in God's mercy and the hope of eternal life. These suggestions and other similar ones certainly have positive aspects; but they also risk humiliating people and marginalizing them in a separate category. In any case, they require prudence, respect, and delicate attention.
Many complain that the Church's current pastoral practice, by excluding, in general, all irregular couples from Eucharistic communion, does not sufficiently take into account of the so-called "law of gradualness," which was in fact clearly enunciated by the Magisterium itself (cf. Saint John Paul II, Familiaris Consortio, 34). One wonders whether it is not possible to make exceptions, at least in some limited cases. However, on this subject I intend at this point to postpone the reflection, in order to speak on the following immediate theme.
4. The innovative proposals
A major pastoral shift is strongly advocated by the media; the public and even many Catholics, including laity and clergy, largely expect this too. The recent Extraordinary Assembly of the Synod of Bishops (5-19 October 2014) made it the subject of lively debate.
"In considering a pastoral approach towards people who have contracted a civil marriage, who are divorced and remarried or simply living together, the Church has the responsibility of helping them understand the divine pedagogy of grace in their lives and offering them assistance so they can reach the fullness of the God's plan for them. [...] The synod father also considered the possibility of giving the divorced and remarried access to the Sacraments of Penance and the Eucharist. [...] The subject needs to be thoroughly examined, bearing in mind the distinction between an objective sinful situation and extenuating circumstances, given that "imputability and responsibility for an action can be diminished or even nullified by various psychological or social factors" (Relatio Synodi, 25 and 52).
The pastoral change is inspired by the desire to make the Church more welcoming and attractive to many people who have been hurt by the widespread marriage crisis in contemporary society, by manifesting God's mercy to them and to all in a concrete way, by recognizing the positive values that also exist in irregular cohabitation, and by presenting the Gospel as a gift rather than as an obligation.
The most authoritative proposals do not question the indissolubility of Christian marriage. Indeed, they say that the divorced and remarried faithful should themselves profess it, by acknowledging that they have sinned by breaking the previous conjugal union, asking for forgiveness, and submitting to penance. The second union is not considered a natural marriage, because, for the baptized, there is only one valid marriage, the sacramental marriage. Likewise, a second marriage is not considered canonical, because, since the first marriage is indissoluble, it constitutes a bigamous marriage. Generally, there is a preference for talking about an imperfect—almost matrimonial—union or about common life, based on some human and Christian values (for example, affection, tenderness, mutual help, childcare). Some, however, speak openly of a second natural, non-sacramental marriage or civil marriage. In short, beyond the changes in terminology, it is believed that the second union is compatible with the indissolubility of the first one, at least in certain cases; indeed, it should be appreciated as an asset to be protected, while refraining from requiring separation and sexual continence, which would be excessively burdensome and difficult.
During the 2014 Extraordinary Assembly, the portion of the Synod Fathers that manifested itself favorable to change admitted as acceptable only "a more individualized approach, permitting access in certain situations and with certain well-defined conditions" (Relatio Synodi, 52). Eucharistic communion would be granted to divorced and remarried faithful only in irreversible cases, after satisfaction of the obligations arising from the first marriage and the completion of a penitential path overseen by the bishop.
As to the experts, some advanced the hypothesis of partial admission to the Eucharist, only in special circumstances, particularly significant for personal or family life, or once a year, at Easter. Some then said that the new discipline should be limited alone to the civilly divorced and remarried, excluding those in de facto cohabitation, registered partners, and cohabiting homosexuals.
I personally think that this limitation is unrealistic, because those cohabiting are far more numerous than the divorced and remarried. Social pressure and the internal logic of things will certainly, in the end, make opinions favorable for wider permissiveness to prevail.
5. Objections to the admission of those Cohabiting Irregular to the Eucharist.
Authoritative pastors and qualified experts raised various noteworthy objections against innovative proposals that revolutionize the Church's practice.
a. One should give due regard to the risk of compromising the credibility of Papal Magisterium, which —as with St. John Paul II and Benedict XVI— in recent times has excluded, repeatedly and firmly, the possibility of admitting to the sacraments those who are remarried and cohabiting. Along with the Pope's authority, this would also weaken that of the entire Catholic episcopate, which shared the same position for centuries.
b. The Church's welcoming of the divorced and remarried faithful, and more generally irregular partners, does not necessarily mean Eucharistic reception. It is true that the Eucharist is necessary for salvation; however, that does not mean that only those who receive this sacrament will in fact be saved. The Church too is necessary for salvation, yet this does not imply that that only those who visibly belong are saved.
The Eucharist is the supreme expression of communion with Christ, for the sanctification of individual Christians and for the edification of the Church. It is true that we all have flaws and are unworthy of receiving the Blessed Sacrament; but there are different types of defects and unworthiness. "Whoever eats the bread or drinks the cup of the Lord unworthily will have to answer for the body and blood of the Lord [...] he eats and drinks judgment on himself" (1 Cor 11:27.29). The Church has consistently taught that mortal sin causes exclusion from Holy Communion and admission must be regained through the sacrament of penance (see for example the Council of Trent, DH 1647; 1641; Catechism of the Catholic Church, 1415).
Moreover, admission to Eucharistic communion is not just a matter of individual sanctification. A non-Catholic Christian or even the non-baptized believer of another religion could be spiritually more closed united with God than a practicing Catholic and nevertheless, not be admitted to Eucharistic communion, because he/she is not in full visible communion with the Church.
The Eucharist is the summit and source of spiritual and visible communion. This visibility is essential, because the Church is a sacrament of salvation and a public sign of Christ the Savior in the world. However, the divorced and remarried persons, and others living together irregularly, find themselves in an objective and public situation that is in serious contradiction to the Gospel and the Church's doctrine.
In today's context of cultural relativism, there is a risk of trivializing the Eucharist and reducing it to a rite of socialization. In some cases, even non-baptized people have approached the table, with the intention of making a gesture of courtesy, and nonbelievers have claimed the right to receive Communion at weddings or funerals simply as a sign of solidarity with their friends.
c. The Eucharist would be given to divorced and remarried persons while affirming the indissolubility of the first marriage and not recognizing the second union as a true marriage (in order to prevent bigamy). This position is different from that of the Orthodox Churches, which allow civilly divorced a second (and third) canonical marriage, albeit characterized by a more penitential mood. Indeed, in some ways, this seems more dangerous, because it leads to admitting the lawful exercise of genital sexuality outside marriage, as couples living together are far more numerous than the divorced and remarried. The most pessimistic often say they foresee that people will end up believing that cohabitation before marriage is ethically licit, both registered and unregistered cohabitation, as well as occasional sexual relations, perhaps homosexual unions and even polyamory and multiple-family unions.
d. It is certainly desirable that a constructive attitude be adopted in the pastoral ministry, by "sensitivity to the positive aspects of civilly celebrated marriages and, with obvious differences, cohabitation" (Relatio Synodi, n. 41).
Irregular unions certainly have authentic human values (for example, affection, mutual help, a shared commitment to the children), because evil is always mixed with good and never exists in a pure state. However, one must avoid presenting such unions in themselves as imperfect values, since there are serious disorders. "Do not be deceived; neither fornicators nor idolaters nor adulterers nor boy prostitutes nor practicing homosexuals nor thieves nor the greedy nor drunkards nor slanderers nor robbers will inherit the kingdom of God" (1Cor 6:9–10).
The law of gradualness only affects the subjective responsibility of individuals, and it should not be transformed into gradualness of the law, by presenting evil as an imperfect good. There is no gradualness between what is true and what is false, between good and evil. While refraining from judging consciences—seen by God alone—and accompanying them with respect and patience steps towards good as can be, the Church cannot stop teaching the objective truth of good and evil, showing that all the commandments of God's law are requirements for authentic love (cf. Gal 5:14; Rom 13:8–10) and that love, sustained by the grace of the Holy Spirit, can observe the commandments and even go beyond them. Therefore, chastity, although difficult, is possible for all, in accordance with their state: as spouses, celibates, divorced and remarried. The latter—even without putting an end to common life for their children or for their own sake—can at least receive the grace and strength to practice sexual continence, and live a relationship of friendship and mutual aid "like brother and sister," giving up sexual intercourse, which is proper to marriage and characterizes conjugal love (cf. Saint John Paul II, Familiaris Consortio, 84).
e. The admission of the divorced and remarried and those living together at the table of the Eucharist leads to a separation between mercy and conversion, which does not seem consistent with the Gospel.
This would be the only case of forgiveness without conversion. God's mercy leads sinners to conversion: it not only frees them from punishment, but also heals them from guilt; it has nothing to do with tolerance. For his part, God always grants forgiveness; but it is received only by those who are humble, who recognize that they are sinners and agree to change their way of life. On the contrary, the climate of relativism and ethical-religious subjectivism that we are living in today promotes self-justification, particularly in the emotional and sexual spheres. Goodness is what one perceives as rewarding and in accord with one's immediate desires. Honesty and uprightness is the so-called authenticity, understood as spontaneity. On the other hand, there is a tendency to diminish one's responsibility, by attributing any failures to social conditioning. The opinion is spreading that, if marriages fail, the couples themselves do not have the primary responsibility, but this is the result of the economic situation and employment conditions, job mobility, career requirements—in short, it is society's fault. It is also easy to lay the blame for the failure on the other spouse and proclaim one's innocence. However, we must not ignore the fact that, if one of the spouses can sometimes be blamed, at least in a new (illegitimate) union, both the partners are responsible, and this, above all, and for as long as it lasts, prevents admission to Holy Communion.
The tendency to consider a second union positively and to associate sin only to the previous separation has no theological basis. It is not enough to do penance only for this. It is necessary to change one's life.
f. Usually, those favorable to letting the divorced and remarried and those cohabiting approach Eucharistic communion state that this does not put into question the indissolubility of marriage. However, beyond their intentions, given the doctrinal inconsistency between the admission of these people to the Eucharist and the indissolubility of marriage, this would finally lead to denying the concrete practice of what continues to be asserted theoretically in principle, with the risk of reducing indissoluble marriage to an ideal, which may be beautiful, but attainable only for a fortunate few.
In this regard, the pastoral practice developed in the Orthodox Churches is instructive. They maintain the doctrine of the indissolubility of Christian marriage. However, in their practices, they have gradually multiplied the reasons for the dissolution of the previous marriage and allowed a second (or third) marriage. Moreover, the number of requests is high. Now, anyone who presents the document of civil divorce also receives ecclesiastical permission to remarry, without having to go through a canonical investigation and the evaluation of the cause.
It is also foreseeable that the reception of Eucharistic communion by divorced and remarried faithful and those cohabiting will quickly become generalized. Then, it will be meaningless to talk about the indissolubility of marriage and the celebration of the sacrament of marriage will lose its practical relevance.
6. Truth and responsibility.
According to the Relatio Synodi, the question of the admission of divorced and remarried to the Eucharist should be studied in the light of the distinction between the objective situation of sin and personal responsibility, which can be mitigated or canceled by multiple internal and external factors (cf. Relatio Synodi, 52).
The Magisterium of the Church teaches that there is a distinction between the objective truth of the moral good and the subjective responsibility of individuals, between the law and the conscience, between the disorder and sin. It recognizes that there is a law of gradualness in personal responsibility, whereas in the truth of good and evil there is no gradation of the law.
"But man, who has been called to live God's wise and loving design in a responsible manner, is an historical being who day by day builds himself up through his many free decisions; and so he knows, loves and accomplishes moral good by stages of growth" (St. John Paul II, Familiaris Consortio, 34).
The subjective ability to know, appreciate and want the good is proper to each person and conditioned by many internal and external factors. "Imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors" (Catechism of the Catholic Church, 1735).
Usually the responsibility develops gradually. However, one cannot "look on the law as merely an ideal to be achieved in the future;" one cannot speak of gradualness of the law "as if there were different degrees or forms of precept in God's law for different individuals and situations" (Saint John Paul II, Familiaris Consortio, 34). The moral law that obliges all and always should not be seen as "an 'ideal' which must then be adapted" to man's concrete possibilities (Idem, Veritatis Splendor, 103). The obligation to do good has no gradation, but the ability to do develops gradually.
To indicate the distinction between the objective truth of Christian life according to the Gospel and the subjective responsibility of individuals, St. John Paul II created an evocative image that he used several times after his speech in Kinshasa, on 3 May 1980. The Pope usually recommended to the pastors of the Church not to lower the mountain, but instead help believers to climb it by leading the way. For their part, the faithful should not stop trying to reach the summit; they must sincerely seek both what is good and the will of God. Only with this fundamental attitude is it possible to develop a positive path of conversion and growth, even though individual steps may be short and sometimes even deviant. "What is needed is a continuous, permanent conversion which, while requiring an interior detachment from every evil and an adherence to good in its fullness, is brought about concretely in steps which lead us ever forward" (Familiaris Consortio, 9).
Pope Francis uses a different, more passionate, tone, but he essentially advances along the same line. "Without detracting from the evangelical ideal, they need to accompany with mercy and patience the eventual stages of personal growth as these progressively occur. I want to remind priests that the confessional must not be a torture chamber but rather an encounter with the Lord's mercy which spurs us on to do our best. A small step, in the midst of great human limitations, can be more pleasing to God than a life, which appears outwardly in order but moves through the day without confronting great difficulties. Everyone needs to be touched by the comfort and attraction of God's saving love, which is mysteriously at work in each person, above and beyond their faults and failings" (Pope Francis, Evangelii Gaudium, 44).
In the perspective of the law of gradualness, we can understand how a good and upright conscience can exist even in the presence of an objectively sinful situation, of seriously flawed and disordered behavior. Some people simply ignore that a certain kind of behavior is wrong; others know that it is theoretically bad, but personally do not believe that it is; still others, while recognizing it as evil, are not free enough to avoid it. Only God sees people's hearts and directly judges their moral responsibility. The Church can only make a discernment, because the inner attitude manifests itself—albeit partially—through words, actions, habits, and lifestyles. Her first task is to teach the objective truth, which is valid for all, and correspondingly regulate Christian personal and community life. As for the faithful, each individual has the duty of accompanying them patiently toward the good of which they are capable, illuminating their situations in life, encouraging them to persevere in the process of conversion and growth, while respecting their freedom of conscience and entrusting human frailty to God's infinite mercy.
Irregular unions of the divorced and remarried couples and of those who cohabit are public and manifest. The Church disapproves them as objectively sinful situations. If She accepted them, as if they were the possible good at a particular time, She would deviate from the law of gradualness to the gradualness of the law condemned by St. John Paul II.
What is bad cannot be, momentarily, the possible good. Stealing never becomes licit, even for those who are accustomed to stealing a lot; swearing rarely ever becomes licit, even for those who are accustomed to swear often. Likewise, illegitimate marital unions cannot be made morally good by the conditions of those who are in favor of giving the Eucharist to divorced and remarried people (e.g., an irreversible situation, the fulfillment of previous obligations, civil marriage, completion of a penitential journey to atone for infidelity in the first marriage, authentic human values experienced in the second union).
Since irregular unions are public and manifest, the Church cannot even take refuge in silence and tolerance. She is forced to intervene openly to disapprove such objectively sinful situations.
Yet, it is possible that the partners, subjectively, are not fully responsible, because of the existential, cultural, psychological and social conditioning. It is even possible that they are in the grace of God and have the interior dispositions necessary to receive the Eucharist.
Nevertheless, it is not possible merely to assume all of this; it has to be verified through careful discernment, in accordance with the law of gradualness. We must discern whether those who are cohabiting truly are determined to climb to the summit of the mountain, which, for them, is perfect sexual continence. Only if this sincere conversion exists, can any missteps or relapses in sexual relations provide for attenuated liability. The help needed for the difficult climb can be found in personalized accompaniment and participation in the life of the Church, as indicated in Familiaris Consortio and Sacramentum Caritatis, which will soon be supplemented by the future Conclusions of the Synod and the teaching of Pope Francis.
The law of gradualness is of great value for the personalized accompaniment of individuals. General criteria for admitting those who live in irregular situations to the Eucharist cannot be drawn from it, except by those who confuse it with the unacceptable gradualness of the law. In fact, discerning subjective responsibility is one thing and identify the possible objective good of individuals is quite another. Bringing people to gradually overcome their irregular situation, by tending seriously toward perfect continence is very different from telling them to remain in an illegitimate union, while indicating under what conditions it can become a possible good for them. The law of gradualness serves to discern consciences, not to classify actions to be taken as more or less good, and even less to elevate evil to the dignity of imperfect good.
With regard to divorced and remarried and those who cohabit, far from promoting innovative proposals, it serves ultimately to confirm the traditional pastoral practice.
The subjective responsibility for any disordered acts is more or less attenuated only in those who seriously strive for complete continence and to live "like brother and sister," although sometimes, if they are unable to cease their cohabitation and finding themselves close to an occasion of sin, they may fail in their continued commitment.
The usual attitude, necessary to mitigate personal responsibility, is substantially the same as the one that—which according to St. John Paul II—allows the reception of sacramental reconciliation and Eucharistic communion. "Reconciliation in the sacrament of Penance which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the Covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children's upbringing, a man and a woman cannot satisfy the obligation to separate, they "take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples" (Familiaris Consortio, 84).
7. Indissolubility of sacramental marriage.
Indissolubility is the cornerstone of the entire pastoral question of admission of illegitimate couples to Eucharistic communion. To be consistent with indissolubility, the traditional practice does not grant them admission. Thinking, on the other hand, of a possible compatibility, most authoritative innovative proposals are open to limited admission, in certain cases and under certain conditions. Unfortunately, there are also theologians who, from various points of view and with different methods of interpretation, have come to question this indissolubility. Obviously, a detailed study of the subject cannot be developed here. However, it seems to me appropriate to recall some guidelines.
In the Catholic Church, the pastoral practice must be consistent with the doctrine of the faith, whose foundation was laid once and for all in the Holy Scriptures and which has, as its main criterion of interpretation, the teaching of the Pope and of the bishops in communion with him. The truth can emerge gradually in the consciousness of the Church, illuminated by the Holy Spirit, to the degree of sometimes being taught infallibly. Authentic development of doctrine takes place with attention to the perspectives and the development of new syntheses, but in line with the definitive stances taken previously. Neither immobility nor separation, but creative fidelity.
Jesus' teaching on the indissolubility of marriage and the equality between men and women was revolutionary and shocking for Judaism in his time (cf. Mt 5:31–32; 19:3–10; Mk 10:2–12; 1 Cor 7:2–5, 10–11, 39). According to the Law of Moses, the husband was allowed to divorce his wife, by giving her a deed of liberation, leaving her free to remarry. Jesus definitely refuses divorce, referring beyond the Mosaic Law to the original plan of God the Creator. He sees marriage as an irrevocable divine gift that creates an unbreakable bond and hence a categorical imperative: "What God has joined together, no human being must separate" (Mt 19:6; Mk 10:9). This unity is a gift and a duty; it is a grace and a commitment, and therefore, it also possible. Any new union after separation is condemned as adultery, because the previous marriage bond remains valid: "Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery" (Mk 10:11–12). Even in the case of a separation, there is an obligation to avoid a new union, which would in fact be illegal: "To the married, however, I give this instruction (not I, but the Lord): a wife should not separate from her husband—and if she does separate she must either remain single or become reconciled to her husband—and a husband should not divorce his wife" (1 Cor 7:10–11).
When Jesus called adultery what was permitted by the Law of Moses, this must have seemed outrageous to many devout Israelites. Yet, even beyond the confines of the Jewish world, Jesus' position on divorce was opposed to the practice commonly accepted by ancient peoples, and indeed is still accepted today. It is easy to understand that the teaching of the Gospel has encountered and continues to meet with considerable difficulties.
The first attenuation of the strict prohibition of divorce was apparently introduced by the evangelist Matthew, who inserted into Jesus' words the phrase "except in the case of fornication (porneia)" (Mt 5:32; 19:9). However, this text can be interpreted in different ways, and Catholics must avoid the interpretations that are incompatible with the Church's doctrine. Since the term porneia seems to indicate a more protracted situation than an episodic act of adultery (expressed by the word moicheia), it can be assumed that the exception refers to irregular unions, i.e., marriages forbidden by the Mosaic Law and therefore, invalid (cf. Lev 18:6–18; Acts 15:29).
As to the Fathers of the Church, it should be remembered that only their general consensus is normative for Catholics. In the case of divorce, they admit that, in some cases, the separation of the spouses is legitimate, and sometimes even required; but they never consider new unions legitimate and, when they speak about then, they condemn them as adulterous. In this regard, apart from a few texts of uncertain interpretation, there is only one sure exception: the so-called Ambrosiaster who allows those who are separated to remarry.
As for Canon 8 of the Ecumenical Council of Nicaea, which obliges the Novatians to "remain in communion with persons who have been married twice, and with those who have lapsed in persecution" (DH 127), it should be considered whether it refers remarried widowers and divorcees.
The Novatians in fact extended to the laity a prohibition that applies to the clergy (cf. 1Tim 3, 2:12; Titus 1:6)—i.e. to remarry in the event of widowhood—and, so, placed themselves in direct conflict with Scripture, which on the contrary authorizes the remarriage of lay widowers (cf. 1 Cor 7:8–9, 28–40; Rom 7:2–3). Hence, they were heretical with respect to the doctrine and not just rigorists in pastoral practice. This is apparent from various testimonies, including that of St. Augustine: "Your widowhood is not a conviction for a second marriage, nor for those who contract marriage. This (negating) doctrine was upheld especially by the heresies of the Montanists and Novatians [...] do not be led away from sound doctrine by any argument, be it erudite or not. Do not exaggerate the merits of your widowhood to the point of condemning in others as evil what evil is not" (On the Good of Widowhood 4, 6), i.e., the remarriage of widowers.
If the fragmentary documentation that we have received from the first millennium sometimes does not allow us to interpret certain texts, situations and episodes, in the second millennium, on the contrary, the doctrine of the indissolubility has definitively been clarified and clearly defined in the ecclesial conscience, while taking shape in these terms: the sacramental marriage, ratified and consummated, complete expression of the spousal relationship between Christ and the Church, cannot be dissolved, nor by the will of the spouses, or by intervention of the Church, or any other human authority, but only by death.
The principal moments of the consistent development of the doctrine are the Council of Florence (DH 1327), the Council of Trent (DH 1805; 1807), Pius XI's Encyclical Letter Casti Connubii (DH 3712), the Second Vatican Council (Gaudium et Spes, 48 and 49), and St. John Paul II's Apostolic Exhortation Familiaris Consortio (nn. 13, 19, and 20).
The Council of Trent defined directly that the marriage bond cannot be dissolved for the reasons of heresy, difficulties of cohabitation, or intentional absence of the spouse (Can. 5). This Council also defined that the Church is not wrong when She teaches that even adultery cannot be invoked for the dissolution of a marriage and contraction of a new legitimate, non-adulterous union (Can. 7).
With this formula, the Council wished to approve indirectly, and in conformity with the Gospel, the doctrine and the practice of the Catholic Church, in order to avoid both condemning and approving the practice of the Orthodox Churches, which, while acknowledging the intrinsic indissolubility of marriage, consider that it may be dissolved by the Bishop, who can allow a second or even the third marriage. Subsequently, however, the Popes have spoken many times to correct the Eastern practice (Clement VIII, Urban VIII, Benedict XIV, Pius VII, Gregory XVI, and Blessed Pius IX), until Pius XI resolutely stated that the faculty to dissolve the marriage bond "can ever affect for any cause whatsoever a Christian marriage which is valid and has been consummated, for as it is plain that here the marriage contract has its full completion, so, by the will of God, there is also the greatest firmness and indissolubility which may not be destroyed by any human authority [...] For, as the Apostle says in his Epistle to the Ephesians, the marriage of Christians recalls that most perfect union which exists between Christ and the Church [...], which union, as long as Christ shall live and the Church through Him, can never be dissolved by any separation" (DH 3712).
Saint John Paul II, in his address of 21 January 2000 to the Tribunal of the Roman Rota, concluded correctly that the ratified and consummated marriage cannot be dissolved even by the intervention of the Pope.
"Neither Scripture nor Tradition recognizes any faculty of the Roman Pontiff for dissolving a ratified and consummated marriage; on the contrary, the Church's constant practice shows the certain knowledge of Tradition that such a power does not exist. The forceful expressions of the Roman Pontiffs are only the faithful echo and authentic interpretation of the Church's permanent conviction. It seems quite clear then that the nonextension of the Roman Pontiff's power to ratified and consummated sacramental marriages is taught by the Church's Magisterium as a doctrine to be held definitively, even if it has not been solemnly declared by a defining act. This doctrine, in fact, has been explicitly proposed by the Roman Pontiffs in categorical terms, in a constant way and over a sufficiently long period of time. It was made their own and taught by all the Bishops in communion with the See of Peter, with the knowledge that it must always be held and accepted by the faithful. In this sense, it was reaffirmed by the Catechism of the Catholic Church. Besides, it is a doctrine confirmed by the Church's centuries-old practice, maintained with full fidelity and heroism, sometimes even in the face of severe pressures from the mighty of this world."
The statement is clear: the absolute indissolubility of ratified and consummated sacramental marriage; although it has not been proclaimed with a formal dogmatic definition, it is however taught by the ordinary magisterium, which is also infallible, and belongs to the faith of the Catholic Church and, therefore, cannot be questioned.
8. Love, indissolubility, validity
The indissolubility retains its meaning and its urgency even within a personalist view of marriage, like that of the Second Vatican Council. "The intimate partnership of married life and love has been established by the Creator and qualified by His laws, and is rooted in the conjugal covenant of irrevocable personal consent. […] For the good of the spouses and their offspring as well as of society, the existence of the sacred bond no longer depends on human decisions alone. For, God Himself is the author of matrimony, endowed as it is with various benefits and purposes. […] By their very nature, the institution of matrimony itself and conjugal love are ordained for the procreation and education of children, and find in them their ultimate crown. […] As a mutual gift of two persons, this intimate union and the good of the children impose total fidelity on the spouses and argue for an unbreakable oneness between them" (Gaudium et Spes, 48).
Certainly, in the Council's vision of marriage is not reducible to a legal contract; but, likewise, it cannot be reduced to spontaneous emotional harmony, without ties. It is clearly defined as a form of common life shaped by conjugal love, which, by its nature, is ordered to the procreation and education of children, and therefore involves sexual intimacy, the total, faithful and indissoluble mutual self-giving.
The openness to children and sexual intimacy characterize conjugal love in contrast with other forms of love. It includes friendship, cooperation and coexistence with their multiple dimensions, but directs and organizes everything in relation to the generation and education of children. Without the joint donation to the children, the mutual relationship between the spouses easily becomes the quest and precarious coincidence of interests and selfish gratification. However, the fundamental indissoluble conjugal bond, that no divorce can dissolve, is personified by children. Moral obligation and legal indissolubility appear in consequence of this. Because they are called to be united forever as father and mother in the person of the child, the spouses are called to remain united first as husband and wife. In this perspective, one understands why the marriage covenant, established by consent, is finally completed via the sexual relationship. "This love is uniquely expressed and perfected through the appropriate enterprise of matrimony" (Gaudium et Spes, 49).
Conjugal communion "leads the spouses to a free and mutual gift of themselves, a gift providing itself by gentle affection and by deed, such love pervades the whole of their lives" (Gaudium et Spes 49); it involves people and their activities, their bodies and souls, intelligence, will, and emotions; it is first the gift of God and then man's commitment, God's irrevocable gift to be welcomed in a project of common life forever. The believers, who through Baptism have been incorporated into Christ as individuals, in marriage are placed in Him as a couple and called to be a concrete symbol, a representation and participation of Christ's spousal covenant with the Church. The marriage bond, like the baptismal character and like any other gift, can be rejected but not erased. It is a gift that imposes a duty and gives the ability to perform it. This naturally recalls the teaching of St. John Paul II about the practicability of the rules given by God: "because together with the commandments the Lord gives us the possibility of keeping them" (Veritatis Splendor, 102); "believers find the grace and the strength always to keep God's holy law, even amid the gravest of hardships" (Veritatis Splendor, 103). In this perspective, the indissolubility of marriage as a vocation appears achievable in life as it is; God's irrevocable gift becomes an indissoluble bond, which can and must be respected.
The vision of marriage as a communion of conjugal love, given by God and lived by the couple in a corresponding plan of life together, has consequences on the validity or invalidity of their wedding celebration. In order to be valid, it seems necessary that eros is not reduced merely to the quest for individual gratification, but is completed by the gift of self to another. Only with via mutual oblative love can a true interpersonal communion be realized; unlike the precarious coincidence of self-interest. "As I have loved you, so you also should love one another" (Jn 13:34). In order to validly celebrate the sacrament, which is the representation and participation of Christ's spousal love for the Church, it seems that oblative love is necessary, at least as a life project on the part of the spouses. Such love includes affection, respect, and service for one's partner, as well as an openness to both procreation and education of children.
For a valid marriage, faith must at least be implicit (cf. St. John Paul II, Familiaris Consortio, 68). Now, the Third Extraordinary General Assembly of the Synod began to reflect on this (see Relatio Synodi, 48). However, I believe that in today's cultural context of self-centered individualism, the intention and the capacity to love and self-giving, should also be taken into consideration, in view of a possible declaration of nullity, and that, even before that, it is necessary to promote a very serious education of young people in the truth of love and adequate preparation of engaged couples for marriage.
9. For a Church in mission.
In many countries, secularization is undermining the mass membership of the Church. We must be aware of the breadth and depth of this sea of change, in order to courageously face the tough and dangerous challenge, while looking forward with confidence, without getting caught up in nostalgia of the past. Some years ago, Cardinal Joseph Ratzinger wrote: "The mass Church may be something lovely, but it is not necessarily the Church's only way of being. The Church of the first three centuries was small, without being, by this fact, a sectarian community. On the contrary, it was not closed in on itself, but felt a great responsibility in regard to the poor, the sick—in regard to all […]" (Joseph Ratzinger, First of all we must be missionaries).
The Church is called by Jesus Christ, the only Savior of all men, to cooperate with him for the salvation of Christians, who are in full spiritual and visible communion, of Christians who are in partial communion, and of believers of non-Christian religions, as well as of unbelievers, who are only implicitly oriented towards God. In order to carry the mission of salvation out effectively, even though the number of the faithful has its importance, the authenticity of the ecclesial communion in truth and love is certainly more important and necessary.
As the Second Vatican Council put it: "So it is that that messianic people, although it does not actually include all men, and at times may look like a small flock, is nonetheless a lasting and sure seed of unity, hope and salvation for the whole human race. Established by Christ as a communion of life, charity and truth, it is also used by Him as an instrument for the redemption of all, and is sent forth into the whole world as the light of the world and the salt of the earth (cf. Mt 5:13–16)" (Lumen Gentium, 9). The mission is always universal, whatever the numerical strength. The Church cooperates with Christ the Savior as a sign that receives, transmits and manifests his presence in the world, his love and his saving action, as the "universal sacrament of salvation" (Lumen Gentium, 48).
It would be misleading to seek the numerical growth of membership, by disengaging ourselves from imparting formation, or via an openness that chooses to ignore canonical status, grants everything to all, and falls to the level of general abasement. On the contrary, there is an urgent need for pastoral ministry that must be addressed to all, but differentiated, to care firstly for the few, who are more available, and through them reach out to all others. "We are missionaries above all because of what we are as a Church whose innermost life is unity in love, even before we become missionaries in word or deed." (St. John Paul II, Redemptoris Missio, 34).
It is necessary to accept everyone and to reach out to all, but in a different way; it is necessary to develop, with conviction and perseverance, popular devotion, but it is even more urgent to form exemplary Christians and Christian families, as I said at the beginning of this text. In order illuminate and produce heat, the first thing to do is light a fire.
CARDINAL ENNIO ANTONELLI
President emeritus of the Pontifical Council for the Family
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HPER P 156 Teaching of Team Activities
Instructor:
Brian Culp, Ed.D
Office:
PE 266
Class meeting: T/Th 8:30-9:50- PE 150,
various.
Office Hours:
By appointment*
E-mail:
email@example.com
Phone:
(317) 278-1596
This course syllabus is a general plan for the course, deviations announced to the class by the instructor may be necessary.
Course Description
Study of current literature and resources related to and practical experiences in teaching team activities effectively in physical education programs. Activities will include readings (textbook, professional journals, research, NASPE documents, Indiana and NASPE standards for physical education; electronic listservs and websites); written reports; lesson preparation, delivery and critiques, and participation in team activities for the purpose of enhancing teaching. A variety of team activities will be included.
Additionally, students will develop skills in lesson and unit planning with instruction being held on campus via lectures, labs, and through service learning off-site*. This is taking place utilizing the fitness program PARCS. This is a collaborative effort between the IUPUI School of Physical Education and Tourism Management (PETM), the IU School of Nursing (SON), Clarian Health and Indianapolis Public Schools (IPS) in order to promote healthy activity in the state of Indiana.
* The outside service learning requirements in this class will be held at the following schools:
George Washington Community High School 2215 West Washington Street Indianapolis, IN (317) 693-5555
Thomas Carr Howe Academy 4900 Julian Ave Indianapolis, IN (317) 693-5590
Emmerich Manual High School 2405 Madison Ave Indianapolis, IN (317) 226-2200
Additional contact person
Jennifer Anderson, M.S. is the service learning coordinator for the Department of Physical Education and the PARCS Program Director. We will both work together to help plan for the success of the students in the afterschool program. Her contact information is below:
firstname.lastname@example.org: (317) 274-7681
Transportation
It is expected that you have transportation the schools you choose to teach in. If this is an issue, then I need to be notified as soon as possible. The afterschool program at each of the schools will begin on Wednesday September 13 th , 2010, unless otherwise noted.
1
Course Objectives
1. Students will implement, modify, and create strategies for class management related to teaching team sports in a 7-12 th grade school setting.
3. Students will be evaluated on basic skills for handball, floor hockey, ultimate frisbee, and speedball.
2. Students will officiate (as necessary), explain and demonstrate the ability to apply rules of team sports.
4. Be able to describe, demonstrate and teach basic skills and concepts for a selected number of team activities.
6. Articulate the importance of research-based, systematic, validated knowledge in constructing and teaching physical education programs.
5. Emphasize the three learning domains in their teaching and understand the importance of safety.
7. Find different ways to make research serve their teaching.
9. Understand and use selected commonsense strategies for reading research.
8. Develop a daily lesson & unit plan.
10. Develop skills for locating pertinent literature available in electronic and print form.
12. Understand developmental stages children progress through as they relate to participation in team activities.
11. Gain an appreciation for the different perspectives students bring to team activity classes, and devise strategies for engaging students of varying perspectives into team activities.
13. Grow in understanding and practical application of organizational matters related to team activities (getting students into groups, transitions from one activity to another, equipment use, distribution and collection, taking roll, etc.)
15. Discuss evaluation and assessment strategies in team activity units.
14. Identify and learn now to intervene when students behave in inappropriate or unhelpful ways during team activities.
16. Improve knowledge of and performance related to the IUPUI Principles of Undergraduate Learning.
18. Maintain accurate records in a physical education setting.
17. Maintain discipline in a physical education setting.
19. Keep a journal of their experiences teaching.
Textbooks/Resources
1. Fronske, Hilda A. (2007). Teaching Cues for Sport Skills for Secondary School Students. (4 rd edition). Pearson Cummings Publishing
2. Schmottlach, N., McManama, J. (2009). The Physical Education Activity Handbook.
(12 th Edition). San Francisco: Allyn and Bacon (NOTE: the 11 th edition is also appropriate for this course)
3. A whistle and other items such as shin guards, a hockey stick, grip tape, etc. (at your discretion)
4. A PARCS SHIRT ($12.00) and a dark pair of athletic shorts/pants
Additional resources
*Additional readings and assignments will be placed on Oncourse and discussed in class.
Student Learning Outcomes
Through this class, students will
2. Develop and deliver lessons to peers in a variety of team activities, and improve in lesson planning and delivery.
1. Participate in and improve performance in a variety of team activities appropriate for age groups across grades 7-12.
3. Base teaching decisions on professional literature.
5. Develop teaching resources using the professional literature.
4. Enhance competencies for using University Library and online resources to access professional literature.
6. Reflect on their performance and teaching as a way to enhance these activities.
7. Link class activities to enhancing performance on the IUPUI Principles of Undergraduate Learning (PULs).
8. Link class activities to the accountability standards, including the Indiana Department of Education academic standards for physical education and the National Association for Physical Education and Sport (NASPE) standards for physical education.
10. Work and give instruction in a supervised afterschool program.
9. Participate in research and understand the importance of it in the discipline of physical education.
Course Expectations
1. You are expected to give your personal best to yourself, peers and IPS students.
2. Students must behave in a professional manner that represents the goals and mission of the university and the department. If there is a question about this, please ask.
3. No guests or children may be present in class.
4. No food should be brought to class. Drinks must be in a non-spill container & must be kept off to the edge of the floor or next to your seat if you are in lecture.
5. If you are injured, you must still attend. Any injuries during class must be reported immediately & any costs incurred are the students' responsibility.
6. Assignments must be in on time.
7. On the days that you teach, whether here or afterschool, you must wear a white polo shirt/or approved PARCS shirt & dark warm-ups or shorts. During peer teaching, class participants must wear proper workout clothes (i.e. proper shoes, no jeans, hats, etc.) whether participating fully or not and are expected to behave in a professional manner. ***
8. On the days that you teach, you are responsible for getting all equipment ready & returning it. Failure to do so will be a loss of points. YOU ARE ALSO EXPECTED TO BE HERE 30 MINUTES before you instruct. Not doing so will incur a loss of points on your overall lesson grade.
9. Understand that criticism of your performance in class or after teaching is not meant to be personal, but only a tool by which for you to improve. To this end, take criticism in a productive fashion and if there is a problem where you feel you have been wronged, we need to discuss this as soon as possible. Also refrain from chastising other classmates. This is counterproductive. If there is a concern in this manner, inform me.
10. Cell phones & pagers must be turned off during class. Unless an emergency, students making or receiving calls during class will lose their daily points.
11. All rules for safety will be strictly enforced. No hanging on the rims or climbing the bleachers.
12. IUPUI is not responsible for lost, stolen or broken personal items.
13. Except in extraordinary circumstances which require written documentation and approval by the professor, there will be no makeup work, (i.e. tests, assignments, quizzes, teaching, etc.) allowed.
14. The instructor reserves the right to modify this syllabus if necessary.
Notes
Since this is a professional class, professional conduct is expected! This includes unwanted class disturbances and outbursts, profanity, failure to cooperate with the instructor and peer instructors, unsportsmanlike conduct, and any other activities that the instructor determines is detrimental to the success of others in this course. This is a methods of teaching course, not an activity class.
Academic Misconduct
Academic misconduct will not be tolerated in any way & will be dealt with as outlined in the IUPUI Student Code of Conduct. This includes plagiarism of written work without referencing it, cheating on examinations or assignments by unauthorized collaboration with other students (unless told to do so by the instructor) and purchasing papers/products or using aides during an examination without the permission of the professor.
Principles of Undergraduate Learning
(These principles will be covered at various times during this course.)
A. Core Skills
C. Intellectual Breadth, Depth and Adaptiveness
B. Critical Thinking
D. Integration and Application of Knowledge
F. Values and Ethics
E. Society and Culture
Evaluation/Grading
There will be several assignments in this class, including readings, peer teaching, and written work. In-depth details of these are on Oncourse.
Criteria for Grading
Category
Points
Total
262 pts
F Below 70
ONCOURSE – OFFICIAL COMMUNICATION FOR P156
Oncourse will be used extensively. Check Oncourse several times during the week for announcements, postings, email messages. You will be asked to submit assignments via Oncourse. If you need assistance with Oncourse, check with any of the many resources available: UITS website http://www.iupui.edu/~stiu/ , phone Q/A service 274-HELP, free computer workshops (STEPS), fellow students, computer lab consultants.
I AM ONLY ACCEPTING ASSIGNMENTS ON ONCOURSE UNLESS OTHERWISE NOTED!
Other notes about the criteria for grading
Attendance
Due to the nature of this course and the enrollment numbers of this class, it is impossible to have make-ups for peer teaching sessions. Therefore, it is important that you are able to attend class when you are teaching, prepared with a lesson plan and equipment for the lesson. If you miss your teaching day with or without your group, you will not be able to make up that day and you will lose your teaching and possibly lesson plan points. This is a professional course, and I expect professionalism in regards to your lesson preparation and teaching. You are expected to be here each day, although you will have two excused absences. After these two, each absence will count in a five point deduction from your final point total for the course. Three tardies will also equal a five point deduction in your grade. Unprofessional behavior, failing to dress appropriately, general disrespect and other related issues in class will also garner point deductions. Other situations which arise that may cause you to miss class need to be discussed with me.
Unit Plan
In brief, you are to pick one of the four main sports that will be covered in this class and develop a comprehensive plan regarding the activity, using the guidelines that I will go over in class. This will be due at the end of the semester. I encourage you not to wait until the end of the semester to work on this.
Journal entries
Each time you teach, whether at IUPUI and through the afterschool program, you will be required to reflect on your teaching. These will be seven (7) total. As part of the reflection, you will apply articles on civic engagement and your interpretation of this to your journal.
Lesson Plans/Teaching
As a portion of your assessment in this class, you will be teaching peers two times here at IUPUI. Your lesson plans will reflect what you will teach in class. You will be graded via a group score and individual score by myself and your peers. I encourage you to save a copy of everything you do in this class.
Tests
You will have two tests in this class over the activities, cues, lessons, and other pertinent information presented in this course. Formats for these tests vary.
Surveys
This will encompass a pre and post survey.
Misc Incentives
There may be incentives based on group performance. Therefore, you should strive to perform the best that you can as an individual and group. These incentives will not replace an assignment in class, but they could be significant enough to add a few points to your final point total for the class.
Journals/assignments/lessons
Place these in your dropbox
SEE NEXT PAGES.
Tentative Team Activities Schedule Fall 10
Date Topic/Activity Teachers Assignment Due
| Introduction, Par Q Tour signing up for days | Culp |
|---|---|
| PARCS Program Discussion Signing up for days. | Culp |
| Principles of Team Activities | Culp |
| Ultimate | Group 1 |
| Ultimate | Group 2 |
| Ultimate | |
| Touch football | Group 3 |
| Touch football | Group 4 |
| Touch football | |
| Rugby | |
| Rugby | Group 5 |
| Basketball | Group 6 |
| Basketball or Roundball | |
| Handball | Group 7 |
| Handball | Group 1 |
| Test 1 | |
| FALL BREAK | |
| Speedball | Group 2 |
| TBD | |
| TBD | |
| Speedball | Group 3 |
| Handball (lead into Lax) | |
| Lax | Group 4 |
| Lax | Group 5 |
| Lax | |
| Floor Hockey | Group 6 |
| Floor Hockey | Group 7 |
| THANKSGIVING BREAK | THANKSGIVING BREAK |
| Floor Hockey | |
| Test 2 | |
Unit Plan guidelines and format (DUE November 18th, 2010)
50 points total
Quality unit plans are a staple of any effective physical education program and can be designed in a vast majority of methods. Since there are individuals who are at different points in the program in this class, your unit plan for this class will be modified. This is not the case with the majority of unit plans, since they are longer and more detailed.
You are to pick one of the team activities we are covering in this class (with the exception of basketball, football and roundball) and plan for a middle school population (grades 7-9).
Why are we not to do K-6 you ask? Team activities of this sort are generally not developmentally appropriate for these levels in a school setting. To further emphasize this point, we would never for instance introduce competitive volleyball to a group of 3 rd graders. Ever seen kindergarten students play ultimate or throw a handball? Tag games and the like yes, competitive sport activities for these ages in school, no.
Your individual lessons that make up the unit need to be planned in terms of a 1 hour time limit. Specify what you will be doing and how long you will be doing it. I suggest that you gear your unit plan to the student population you plan to work with in order to give you some practice in class preparation.
Within this unit plan, the following items will be included for full credit:
1. What is the theme/sport being covered?
2. The grade level?
3. A brief history and rules/terms you want covered in you class. These need to be appropriate to the grade level. (5 points)
4. An overview of the equipment and facilities needed. (2 points)
5. Considerations for safety and rules. (2 points)
6. Unit objectives at the end of the unit (i.e. students at the completion of the unit should be able to) (3 points)
7. A day to day general summary of what will be going on each day. Place this in a chart. (3 points)
8. This is important: I only want you to include three lesson plans, under the exact same format that you have been given in class. Typically, most units for teaching team activities are longer, but you do not have the time in this class to make a three week to four week long drawn out unit. Keep in mind what a beginning lesson should look like and what a culmination lesson should look like. Your lesson plans for your students should show a logical progression. Do you want your students playing mini-games toward the end of the lesson or a full out activity the last day of the lesson? (20 points)
9. An assessment tool. You will construct a twenty five question test using multiple choice, true false, matching, fill in the blank and essay. These will be questions that you will create. (10 points)
10. A two page summary of your rationale for selecting this unit, the idea behind the lessons you chose along with an explanation of your tests and why you decided to design the questions that you did. (typed, 12 point, times new roman). (5 points)
Lesson plans should include the following:
Section A. (Objectives)
- Background Information (Grade, # of students, Length of Lesson). Plan for:
- Power walk/jog (5-10minutes)
Goal is to get all kids power walking or jogging for 12 straight minutes Progressive warm up week to week (minutes)
-Fun and Fitness Circuit (10-15 minutes)
Different circuits each week.
Demonstrate before beginning
8 circuits
Weeks 1-6, circuit is 30 seconds with some rest in each. Weeks 7-12 each circuit station is 1 minute with some rest in
Fit Decks, Fit Spots, etc, sport related stations between each.
-Game/Sport activity (45 min)
More cooperative than competitive, have a cooperative activity (brief)
Per the schedule, have backups in mind
- Cool down-cues/quiz (10 min)
Light stretch/yoga
Students can demonstrate
- Overview/Rationale (Describe the importance of the lesson, and what you think should result from this lesson, i.e. cognitive, behavioral, psychomotor)
- Anticipated Difficulties (Address any potential problems to watch out for - i.e. safety issues, discussion topic difficulties, etc)
- Resources and Materials needed (Identify any equipment needed to conduct the lesson)
- NASPE Standard(s) covered (Provide the number for each standard addressed in each objective, each standard does not need to be met).
Section B. (Content) - This needs to be detailed enough so that I know what is happening). Bulletpoints are unacceptable.
-Description of the warm-up routine that the group is doing and your management routine
-A lesson map of the room/physical activity space
-Description of the lesson you are teaching and what you are going to do (put in how much time will be devoted to each portion)
Section C. (Cues/quiz)
Provide a separate handout for your learners which:
-Has a copy of all of the cues discussed in class
-Has a five question quiz over topics discussed in the lesson
-Be sure to reference your work.
Lesson teaching:
You/your group do have some flexibility in teaching your lesson. Good scores on lessons typically include the following:
-A theme for the lesson (word/slogan/thought) that is applicable to the lesson and is referred to often during instruction.
-Enthusiasm without being silly.
-Being on time
-Having a concise lesson plan that involves everyone, including communicating effectively with group members
-A warm-up or instant activity or sort which relates to the lesson
-Time to practice individual skill development
-Time to practice partner/small group skill development
-High ALT-PE. Movement.
-A safe environment for learning
-A set of basic rules and signals
-Doing the activity and explaining its relevance in a sport/team context
-Specific feedback which is relevant to what is happening in the lesson
-A logical progression of activities, based on what you have in your resources
-Creative lessons (show your class and me something that we haven't seen before)
-Think about how to teach unmotivated, middle school learners
-A teambuilding activity at the beginning or end of the lesson and a brief time to process and link the activity to what is happening in the lesson.
-Looking and acting professional
-Providing meaningful cues for instruction
-Asking students questions
-KNOWING YOUR CONTENT-USE THE TEXT(S) –don't make it up
-Ending with a positive building block for the day.
Group No:
Points: ____ /20 X 5
/5
Communication provides no evidence on
how to engage or assess waste of my time Highly
relate the lesson in any students. The lesson is
haphazard and content what they were thinking
I could not use anything of not from this group’s
signs of communicating
| The group in my opinion worked together extremely well. First, all of the members were on time. Second, equipment appeared to be logically used with the class setting. All of them were dressed well and clean looking. There were no lapses in the teaching. I enjoyed the lesson and where it took me. I learned something new. The assessment was challenging. I moved around a lot and was active. | The lesson was enjoyable. There were a few minor things to adjust: The reason why I didn’t rate this a five was because: | The group teaching was basic, really nothing new for me. Class was a bit mismanaged and I didn’t feel as if everyone was on the same page. I have seen this lesson before and could have taught it myself. Not really applicable to a wide range of groups. | The group teaching was not developmentally appropriate. It has lessons which do not challenge learners and is not practical in execution. There was no assessment. I would be happy if they didn’t try this again. |
|---|---|---|---|
| The group had developmentally appropriate activities and no more than eight minutes. Lesson material was known without having to look at a stack of notes or merely by reading materials. This group looked like professionals. The group used terminology I read and studied in my books for the course. Additionally, they used examples and persons as models. | The group seemed pretty intelligent. There were a few minor things of note such as: | I did not feel particularly engaged by the group in this class setting. Members seemed indifferent and concerned with finishing than teaching/coaching. | The main lesson includes poor management of students by the instructor. Modifications to activities if necessary are not made. I felt, “busy, happy and good” and learned nothing. We kept doing the same activities/drills. |
| Without a doubt, I can use this group’s lesson when I am teaching. The routines and the management style are logical for the type of class being taught. The lesson is also flexible enough to incorporate other aspects of learning into it. The lesson could be modified for people with various skill levels and abilities. | The group’s lesson seemed fairly solid. I noticed the following issues though: | I could use certain parts of this lesson, but all in all, the effort left a lot to be desired. It wasn’t terrible, but nothing stood out to me. | This group had very few items that I have not experienced before. If structured better, I could have seen more. |
| The group had no problem with voice communication. Non-verbal communication was additionally important. I thought all the people in the group scheduled transitions well. Group members appeared to have discussed things with each to other. | The group communicated well, but I noticed a few minor issues: | I didn’t feel as if the group consistency discussed how to maximize effective use of time. Lots of low ALT-PE | Some communication, but nothing of note. |
P156 class teaching rubric Person:_______
Lesson:_______ Date:_______
Area Description Points (Circle one) Comments (what was missing/notations)
Group Warm-
Main Lesson
| -Arrived 30 minutes before lesson, dressed appropriately? -Effective tone and voice? -Lesson plan? -Is the set up logical and unhurried? | 5- Proficient 4-Emerging 3-Average/Inconsistent 2-Must improve 1-Unobserved/flawed |
|---|---|
| -Does the warm-up seem appropriate to the lesson? -Is the relevance of the activity discussed? -Does the instructor enthusiastic? -Is the class under effective management? | 5- Proficient 4-Emerging 3-Average/Inconsistent 2-Must improve 1-Unobserved/flawed |
| -Is equipment used in a logical fashion for the lesson? -Is the teacher giving specific feedback and actively engaged with students? -Are safety concerns in effect? -Are students on task the majority of the class and under effective management? | 5- Proficient 4-Emerging 3-Average/Inconsistent 2-Must improve 1-Unobserved/flawed |
| -Did closure provide a review of the cues, fit word(s) and main points of the lesson? -Was the team building activity appropriate to the lesson? (If applicable) -Did the teacher answer student questions in a knowledgeable fashion and end with a meaningful thought for the day? | 5- Proficient 4-Emerging 3-Average/Inconsistent 2-Must improve 1-Unobserved/flawed |
Program notes/teaching and lesson planning strategies.
I. Procedure
-You will need to choose five times for you to attend the afterschool program at the sites of your choice. You will teach approximately from 3pm until 5pm. It goes without saying that you need to be at the school approximately 30 minutes or sooner before you teach, because you need to set up. If you are late, the service learning assistant, myself or Jennifer will deduct points from your teaching. If you miss your opportunity altogether, you will have your teaching and journal points deducted from your overall grade for the course, which cannot be made up due to time. BE EARLY, ATTENTIVE AND READY TO GO!!!!
Your lesson plan needs to be turned into me the Friday before you teach, before 5pm, to either myself or Jennifer Anderson. The lesson plan can be turned in as an individual effort or as a group plan. If you do not have your lesson turned in on time, you will have 5 points deducted from your teaching grade for the lab.
If you really want to get ahead of the game, it is best to meet early, with each person contributing to the lesson. Group lesson plans need to have a description of what each person contributed to the lesson.
A list of students will be provided to the schools, but you need to have on your appropriate IUPUI clothing to identify you as an instructor. When you get to the school, you can park in the front of the school or you may be able to find a visitors spot near the back. I have no way to guarantee the availability of spaces from day to day.
II. Teaching
In order to maximize your success in this endeavor and meet the needs of the student population you are serving, you will need to strategically and logically plan out what you want to happen during the two hours you will have for the afterschool program. Here are some strategies for people who have done well.
-You need to be early in order to set up. If you are scrambling around trying to set up equipment and procedures five minutes before class begins, you will have a host of problems on your hands. There are a host of uncontrollable variables in an afterschool program that you cannot prepare for unless you experience them firsthand. The fact that you are in a setting unfamiliar to you should encourage you to overplan.
-For the people who are teaching in a group, each person needs to have an equal and designated role.
-This is the time to practice being an "active teacher". Are you controlling class or is the class controlling you? Be cognizant of giving directions, being courteous, but at the same time, being in charge. If you stay active, your time will fly by.
-If something is not working, don't be afraid to modify or move on to the next task. Plan backup tasks for your learners.
-Engage students in the activity by asking them questions to get involved.
-Discuss management procedures with the class in less than two minutes. Do not spend more than two minutes giving instructions. Work in small bits. You do not have to give students everything in one session minute class session.
-Don't ask students what they want to participate in. Tell them. Divide students up into smaller groups and teach briefly before getting them into activity. I will also provide to each group a list of fitness and sport activities for the programs.
III. Strategy
When creating your lessons, you need to have the following components: a cardio warm-up, an opportunity to work on team skills, a cool down and a brief teambuilding activity. We will discuss this in more detail the first few weeks of class.
Cardio activity can be in the form of an instant activity or by separating the boys and girls to work on a warm up such as cardio aerobics or kickboxing. Music needs to be a part of this activity-which is appropriate, free of profanities and something you would work out to. Current music works better than older music.
Next, you can gather the group together briefly and explain what will be going on the rest of the time, as well as go over your management directives (i.e. when we blow the whistle….)
Team skills in a drill of some sort which relates to the group sport should be covered. After a few minutes, rotate groups and then lead up to the last activity.
The last activity should be a team related or big group competition, after which, leave a few minutes for closure if needed. Students can help you with equipment if you want them too.
Again, this is a rough outline. Still, you should stick with the lesson plan components for the class to make your life easier.
What I would like to see taught:
August-Mid September (Football, Frisbee, Basketball)
Mid-September-Mid October (Basketball-Handball, possibly Roundball)
Mid October- Mid November (teacher choice)
Activity should be taking place at all times (four-square, jump rope, challenge drills, dance, aerobics)
– NO DOWN TIME
Reflection Journal-Afterschool questions
Answers to these questions should be turned into Oncourse no later than a week after each of your teachings. Your answers should be no less than two pages, double spaced, 12 point font. Late assignments will not be accepted. These will be graded based on a rubric I will provide to you. Again, these questions are specific to your AFTERSCHOOL teaching. A reflection on your individual and group teaching will have separate questions. All articles will be on Oncourse.
First visit:
Describe your initial perception of the school.
Describe your initial perception of the students.
What were two things that you did well your first day and two things that you would improve upon.
Article one reflection
Second visit:
Describe your teaching experience during the second visit. What are some aspects of the experience which stood out to you?
What are ways that you feel you are building a positive rapport with students in the afterschool program?
What activities do you think students are most familiar with? Why do you think this is the case? How would you change this in your future physical education experiences?
Article two
Third visit:
Based on what you have witnessed so far, what aspects of classroom management would you focus on for this group? Would this differ in a physical education setting as opposed to an afterschool program?
Article three
Fourth visit:
Are you noticing differences in students' participation from your first visit to the next visit? List two items (or more) which you remember.
Describe the most interesting conversation you have had with a student.
Article four
Fifth visit:
When looking back on your experience, what have you learned in respect to teaching and planning for an afterschool program?
What have you learned about motivating students in a program such as this?
What have you taken from this program which you think will help you in future endeavors, which have nothing to do with teaching?
Article 5
Reflection Journal-Individual and Group Teaching questions
First Teaching:
What topic did you instruct?
What was your perception of your first teaching and the topic which you taught?
What was the perception of your groups' teaching?
Was there anything in particular you would like to instruct in a different fashion? Why?
Indicate two specific things that you will do for your next teaching to improve upon your instruction.
Second Teaching:
What topic did you instruct?
How did your group perform in this teaching as compared to the last lesson?
How did you perform in this teaching as compared to the last lesson?
How did you improve upon your instruction from the first time?
What did you learn from this teaching and what did you learn from working in a group?
Grading Rubric for all journals on next page
| 4 Proficient | 3 Advanced | 2 Basic |
|---|---|---|
| Journal is representative of critical reflection which includes knowledge of content and its inclusion into the teaching episode. Analysis conveys extensive evidence of a personal response to the issues raised in the teaching episode, documented with relevant facts presented in the course. The instructor’s entry demonstrates an understanding of personal growth & development in teaching and diverse strategies by which this can take place for different learners. Grammatical mistakes are non-existent. | Demonstrates an ability to reflect on own teaching & student learning. Provides examples consistently throughout the reflection. Analysis conveys evidence of a personal response to the issues observed while teaching in the lab and during course discussion. The instructor is able to make inferences about the teaching episode and the learners in the setting noting previous demonstrations. Grammatical mistakes are virtually non-evident. | Demonstrates an ability to reflect on own teaching and student learning, but minimal examples are provided. Analysis conveys some evidence of a personal response to issues observed while teaching in lab and during course discussion. Journal entry is completed with a few grammatical mistakes. |
No points for late or unacceptable journals.
|
DAUPHIN COUNTY BOARD OF COMMISSIONERS
LEGISLATIVE MEETING
MARCH 3, 2010 10:00 A.M.
MEMBERS PRESENT
Jeff Haste, Chairman Dominic D. DiFrancesco, II, Vice Chairman George P. Hartwick, III, Secretary
STAFF PRESENT
Chad Saylor, Chief Clerk; Marie E. Rebuck, Controller; Janis Creason, Treasurer; Fred Lighty, Esq., Human Services Director's Office; Dave Schreiber, Personnel; Steve Howe, Director of Tax Assessment; Robert "Scott" Crawford, Tax Assessment; Matthew Miller, Director of Work Release; Melissa Wion, Personnel; Amy Richards, Commissioners' Office; Randy Baratucci, Director of Purchasing; Jack Wright, Human Services Director's Office; Troy Petery, Deputy Court Administrator MDJ; Gary Serhan, Deputy Controller; Leila Brown, Solicitor's Office; Mike Yohe, Director of Budget & Finance; J. Scott Burford, Deputy Chief Clerk; Kay Lengle, Personnel; Doug Boswell, Tax Assessment; Ken Gordon, Tax Assessment; Paul Kreiser, Tax Assessment; Greg Daylor, Tax Assessment; Jay Skaggs, Tax Assessment; Greg Schneider, Budget & Finance; Brenda Hoffer, Commissioners' Office and Richie-Ann Martz, Assistant Chief Clerk
GUESTS PRESENT
Stephen Hetrick, Donna Kreiser, Lou Verdelli, John Hewlett, Emily Opilo, Pat Navagato, Jim Sinkovitz, Robert Pierce, Diana Vereen and Robin Paulison
MINUTES
CALL TO ORDER
Mr. Haste, Chairman of the Board, called the meeting to order at 10:07 a.m.
MOMENT OF SILENCE
Everyone observed a moment of silence.
PLEDGE OF ALLEGIANCE
Everyone stood for the Pledge of Allegiance.
APPROVAL OF MINUTES
It was moved by Mr. DiFrancesco and seconded by Mr. Hartwick that the Board approve the February 17, 2010 Workshop Meeting Minutes.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye and Mr. Hartwick – Aye; motion carried.
It was moved by Ms. Rebuck and seconded by Mr. DiFrancesco that the Board approve the February 17, 2010 Salary Board Meeting Minutes.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye; Mr. Hartwick – Aye and Ms. Rebuck – Aye; motion carried.
EXECUTIVE SESSIONS HELD BETWEEN MEETINGS
Mr. Saylor: Commissioners, as you know we met once in Executive Session on February 24, 2010 to discuss labor negotiations.
PUBLIC PARTICIPATION
Mr. Haste: We are the point in time in the meeting for public participation. Is there anyone in the audience that would like to address the Board at this time? (There was none.)
DEPARTMENT DIRECTORS/GUESTS
A. Dauphin County Commissioners
1. Proclamation – Robert "Scott" Crawford
Mr. Hartwick: It is my pleasure this morning to honor one of our long time employees that some of you may or may not know from the Tax Assessment Office is a large recipient of complaints. From an investment standpoint, from the County's perspective, it is an area where making the right investments in staff and personnel who can adequately go out and do the assessments on properties, making sure that we save time and money in appeals later on, as well as get properties on the tax rolls a whole lot more efficiently is certainly a way to help benefit school districts, local municipalities and the County with additional revenue and making sure that the tax equity is at the forefront. Obviously we have an individual amongst our midst that has spent 30 years with Dauphin County. We have him here today to honor him. He has been a great employee and he is also a resident of Dauphin County, which is doubly good, because I know that with the work that he does he cares greatly about making sure it is done right and has a pride in his citizenship in Lower Paxton Township, as well as what he has been able to do for his home County.
(Mr. Hartwick read the following Proclamation.)
Office of County Commissioner Dauphin County, Pennsylvania
Proclamation
We e, the Dauphin County Board of Commissioners, are delighted to honor the much-admired and always dependable Robert "Scott" Crawford for his thirty years of service with the county and to recognize with both joy and sadness his richly deserved retirement from the Dauphin County Office of Tax Assessment and Tax Claim;
Whereas s, this extraordinary, hard-working and dedicated employee will be greatly missed by those who had the pleasure of working with him during his tenure as a Residential Field Appraiser;
Whereas s, possessing the highest standards of leadership, professionalism and personal integrity, Scott is known for his joyful spirit and exceptional rapport with those we serve in the public since beginning his career with Dauphin County on March 3, 1980;
Whereas s, besides his significant contributions as a county employee, this Central Dauphin High School graduate and long-time resident of Lower Paxton Township is known as a caring father of three children and thoughtful friend to many who has not only served the people of Dauphin County but has also served his country in the United States Navy;
Therefore e, we join the 256,000 residents of Dauphin County in heartily congratulating Scott for his well-deserved retirement after three decades of outstanding service to the Dauphin County Office of Tax Assessment and Tax Claim; we warmly wish him enduring health and happiness for the years to come; and, in grateful recognition thereof, we do hereby proudly proclaim March 3, 2010 as "Robert "Scott" Crawford Day" in Dauphin County.
(Applause was given.)
Mr. DiFrancesco: It is always exciting to say a fond farewell, but first congratulatory remarks for those employees who have worked very hard for this County for a long period of time. We are sincerely grateful for the service that you provide and just hope that the retirement that you are now about to partake in is a pleasant one and full of activity. As always I hope the honey-do list isn't too long.
Mr. Haste: They usually are. As George was talking, I was thinking that what you guys do is really the core of a lot of governments. It is the baseline of all the revenue that comes into the County and most of the municipalities. That is actually a critical role in that it is done timely, accurately and fairly. We hear nothing but good things about what our assessors do. It would probably be more interesting to sit here and listen to Scott talk about what he has seen in the last 30 years. I'm sure there are some good stories as you are out and about in the field. Thank you for your long service and I'm amazed at how many County employees really do reach that plateau or close to that plateau and hats off to all your dedication.
(Applause was given and pictures were taken.)
B. John Hewlett, Susquehanna Group Advisors, Inc., Lou Verdelli, RBC and Donna Kreiser, McNees, Wallace & Nurick
1. Ordinance #1-2010 – General Obligation Bonds (Vote Requested)
Mr. Hewlett: I'm John Hewlett with Susquehanna Group Advisors. I'm here also with Lou Verbelli of RBC Capital Markets and Donna Kreiser with McNees, Wallace & Nurick. I'm here to discuss an Ordinance that is in front of you today authorizing the issuance of three series of General Obligation Refunding Bonds. As we discussed when we met with you two weeks ago, there is a refunding opportunity available to the County right now in connection with three of its outstanding fixed rate General Obligation Bond Issues, Series A of 2002, which is outstanding in the amount of $16 million, Series A of 2004, which is about a little less than $5 million and the taxable Series B of 2004, which is just under $2 million. Right now, based on current market interest rates, the County is in a position where it can potentially refund the outstanding Bonds with three new series of General Obligation Fixed Rate Bonds and realize debt service savings totaling over $1 million. Right now it is contemplated that the savings will be realized over the next three years, 2010, 2011 and 2012, after which point the debt service on the new Bonds would be essentially equal to the debt service on the existing Bonds. Right now we see, as we discussed, savings in excess of about $500,000 this current year, about $300,000 next year and about $250,000 in 2012.
Just a couple points about the Refunding or the structuring of the Refunding – the term of the Refunding will be equal to the term of the existing Bonds. The Refunding Bonds will be fixed rate Bonds, as are the Refunded Bonds. Therefore, there are no additional risks associated with any type of floating rate bond or the credit facilities involved with that. The Ordinance is being presented as a parameter ordinance or a not to exceed ordinance. The numbers that are in the Ordinance, as far as the issuance amounts of the Bonds, are actually going to be higher than what the issuance amounts will be. The reason we do that is to provide flexibility with regard to the bond pricing, because it is a refunding transaction the savings amounts are sensitive to current market rates and having the flexibility with the timing will allow us to get into the market at the appropriate time and maximize the savings to the County. I can answer any questions you might have. Donna has prepared the Ordinance and Lou has Bond Purchase Agreements for each Series, all of which are in a not to exceed parameter amount.
Mr. Haste: Lou do you have anything to add?
Mr. Verdelli: Maybe just on timing. Our estimate is that we are in the process of getting the credit rating updated and the disclosure documents updated for going out to market. We are hopeful to have that done in the next three weeks. So, the earliest we would actually be in the market selling your Bonds and locking in an interest rate is probably about three weeks from now. We have some interest rate risk, but there is not a lot out there that seems to be pushing long term rates higher. Hopefully three to four weeks we will be in the market, locking in an interest rate and be able to tell you exactly what your final savings are. You will get a copy of all the final numbers with the final savings.
Mr. Haste: If something happens to the market, we just are not pulling the trigger at that time.
Mr. Verdelli: That's right. We are in contact with the administration to make sure that the savings would be appropriate before we actually go out into the market. If something happens we would just be on hold. The credit rating will be good. The documents will be good. We would just wait until the market recovers.
Mr. Hartwick: I think we are ready to roll with this.
Mr. DiFrancesco: Each of the series of Bonds, tell me again.
Mr. Verdelli: Existing Bonds are all fixed rate Bonds and we are going to refund those with traditional fixed rate Bonds. Each one has a different maturity date. There is going to be three new Series that perfectly match up so there is no extension of the payments. The payment dates are staying identical. You are going from higher rates that on average close to 5% where we are probably going to be under 3.5%.
It was moved by Mr. Hartwick and seconded by Mr. DiFrancesco that the Board adopt Ordinance #1-2010, captioned below.
An Ordinance of the Board of Commissioners of the County of Dauphin, Pennsylvania (the "County") authorizing and directing the incurring of non-electoral debt through the issuance of General Obligation Bonds, Series A of 2010 (the "Series A Bonds") in the maximum aggregate principal amount of $19,770,000 of the County as permitted by and pursuant to the Local Government Unit Debt Act, 53 Pa.C.S. § 8001 et seq (the "Debt Act"), for the purpose of providing funds to (A) advance refund the County's outstanding General Obligation Bonds, Series A of 2002, and (B) pay the cost of issuing the Series A Bonds or any or all of the same; authorizing and directing the incurring of non-electoral debt through the issuance of General Obligation Bonds, Series B of 2010 (the "Series B Bonds") in the maximum aggregate principal amount of $5,550,000 of the County as permitted by and pursuant to the Debt Act, for the purpose of providing funds to (A) currently refund the County's Outstanding General Obligation Notes, Series A of 2004, and (B) pay the cost of issuing the Series B Bonds or any or all of the same; authorizing and directing the incurring of non-electoral debt through the issuance of General Obligation Bonds, taxable Series C of 2010 (the "Series C Bonds," and together with the Series A Bonds and the Series B Bonds, the "2010 Bonds") in the maximum aggregate Principal amount of $2,410,000 of the County as permitted by and pursuant to the Debt Act, for the purpose of providing funds to currently refund the County's outstanding General Obligation Notes, Series B of 2004 (Federally taxable), and (B) pay the cost of issuing the Series C Bonds or any or all of the same; accepting certain proposals for purchase of such 2010 Bonds at private sale by negotiation; setting forth the terms and substantial form of such 2010 Bonds and authorizing execution and authentication thereof; pledging the full faith, credit and taxing power of this County in support of such 2010 Bonds; appointing a Paying Agent and Sinking Fund Depository for such Bonds; making certain representations and designating the Series A Bonds and Series B Bonds as "Qualified Tax-exempt Obligations" under Federal Tax Law provisions; setting forth certain covenants and representations relating to the Federal Income Tax status of the interest to be paid on such Series A Bonds and the Series B Bonds; approving the use and
distribution of a Preliminary Official Statement and Official Statement for the 2010 Bonds; appointing Bond Counsel for the 2010 Bonds; setting forth continuing disclosure obligations of the County in connection with the 2010 Bonds; authorizing and directing the advance refunding of the County's outstanding General Obligation Bonds, Series A of 2002 and the current refunding of the County's outstanding General Obligation Notes, Sereis A of 2004 and General Obligation Notes, Series B of 2004 (Federally Taxable); authorizing appropriate officers of the County to take certain actions and to execute certain documents in connection with issuance of such 2010 Bonds; and repealing all Ordinances or parts of Ordinances insofar as the same shall be inconsistent herewith.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye and Mr. Hartwick – Aye; motion carried.
C. Matt Miller, Director of Work Release, Dr. Diana Vereen, Adult and Correctional Practitioner/Researcher and Robin S. Paulison, Institutional Program Coordinator
1. GED Presentation
Mr. Miller: I would like to thank you for allowing us to come in and speak to you today regarding a GED Adult Basic Education Program that we have operating out at the Dauphin County Work Release Center. Attending with me today, is Dr. Diana Vereen. She provides the GED Adult Basic Education instruction and Robin Paulison, who is the Instructional Program Coordinator for Transitional Studies at Harrisburg Area Community College.
In October of 2008, I was fortunate enough to attend the Transitional Studies breakfast at Harrisburg Area Community College regarding the GED Adult Basic Education Program. During that breakfast, I inquired about the possibility of bringing HACC Adult Basic Education Program to the Work Release Center. In follow-up meetings with the Transitional Studies Department and Ms. Paulison, a program was developed to bring into the Work Release Center and this program was implemented for trial in January of 2009. Through the course of six-week sessions, participants attend GED Adult Basic Education preparatory classes at the Work Release Center three times per week. They are usually Tuesdays, Wednesdays and Thursdays. These sessions are instructed by Dr. Diana Vereen. The Work Release Center is extremely fortunate to have her services as she has established a positive rapport with our Work Release residents and provides valuable instruction as a professor from Harrisburg Area Community College with a strong interest in educating at-risk and disadvantaged students.
Our students for this program were identified by voluntary participation and Work Release Probation Officer referral by further identifying residents who were Courtordered to participate in GED classes or could otherwise benefit from continuing their education. Previously we had to send these students outside of our facility to participate in this, usually at Harrisburg Area Community College. Upon completion of the initial classes, Dr. Vereen would then identify students that she thought were ready for testing. Upon being identified as ready for GED testing, our Work Release staff would assist in getting the students registered for testing at HACC. An added bonus is that the Work Release Center now pays for the cost of testing. These five components of the GED test would cost the individual student a total of $60 if taken at one time. That cost could be very prohibitive to a lot of inmate resident population. With the approval of the Court testing fees for each student, which are $12 per individual test, are paid for any student deemed ready for GED testing by Dr. Vereen. In 2009, we had a total of 24 students who participate in the GED Adult Basic Education Program at the Work Release Center. Of those 24 students, 12 were identified as being ready for testing and some were all the GED testing components of reading, writing, science, math and social studies. Of those 12 students, 33 different tests were taken. Of those 33 tests, 27 were successfully passed. Therefore for the 2009 year, the Work Release Center and HACC is pleased to announce a success rate upon testing of 81%. Additionally of those 12 students that were ready for testing, 66% were successfully discharged from the Work Release Center. We had one that was sent to the State Correctional Institution on a pending charge that was awaiting disposition. Three others went to Dauphin County Prison for technical violations of Work Release policy. Those three are soon going to be returning at some point this year to attempt a successful reentry into their communities and this gives them something to build on. We look to continue this successful partnership with the HACC Transitional Studies Department and are thankful of this program that they have assisted us with bringing into the Dauphin County Work Release Center. At this time one student is registered to take all five tests and nine others are ready for testing in other components. Of those eleven, nine are ready to take a total of 19 tests with this current session that is about to conclude next week. The Dauphin County Work Release Center strives to prepare our men for successful reentry into their communities. Education is a key component to successful reentry, not just in the scope of corrections, but in life. Therefore, any tools that we can provide that may pay future dividends are worth attempting. If initiating or obtaining a GED while incarcerated at our Work Release Center can serve as an impetus to further education or better employment upon reentry there is a benefit to all of us. Some of these men may fail; both figuratively and literally, but we must keep trying. If we continue to offer opportunities for improvement of oneself through education eventually we may be successful in showing that individual a better way, a better life and better opportunities for themselves and their families.
Mr. Haste: Are there any questions?
Mr. Hartwick: This moves further with the get smart on crime policies from this Board. As Commissioner Haste says, it is not about us being soft on crime, it is about trying to figure out ways that when someone has done their time and their debt to society to try to return them as productive taxpaying citizens. By eliminating those barriers, it enables individuals to be able to actually achieve those realms of success, because most of the folks, throughout their entire life, through their home experience, their educational experience have been told that they can't do things. Trying to figure out ways that they can achieve success, a GED, their vocational skills that they may have interest in and basic understanding and testing for and matching them up with folks on the outside that will enable them to have a quality job. We want to see citizens become productive and taxpaying. We don't want them on the taxpayer dime. Clearly trying to figure out ways to get them to that position and giving them opportunities in-house, which is a significant change in philosophy that has existed at the Work Release Center prior to you taking over. That is a credit to you, a credit to the direction of the Judges and this Board and ultimately we have seen a reduction in the population out there as a result of the drug and alcohol programs, mental health programs and quite frankly GED and education. Absent the ability to have that educational component, you are going to be stuck in the same cycle of poverty. Bringing it in-house really alleviates those barriers and allows individuals to have one more step to achieving independence and being able to be selfsufficient, taking care of their kids, families and being taxpayers. A job well done! I look forward to you expanding on some of those services you are providing in-house.
Mr. DiFrancesco: Likewise I want to say thank you for your efforts, thank you to HACC for this innovative program that we are bringing education to these people. As Commissioner Hartwick said the goal is not simply to lock somebody up, incarcerate somebody, but it is to give them the skills that they need to become taxpaying citizens. You mentioned that some may not make it through. That is true, but those that truly want to strive to be productive citizens that are trying to break the cycle of addiction and trying to make their life better, that has been a commitment of this Board to try to help by providing the services necessary to get them back on the proper path. Ultimately, that is what saves tax dollars. Great job bringing this together! Any additional efforts that can be made in letting people know that there is a whole host of opportunities out there, in terms of what HACC is providing through a lot of the professional programs that they are offering, the construction HVAC, etc. and the fact that there is money available and resources available that once people finish their commitment at the Work Release Center that they can move onto these other programs and ultimately get very well paying jobs in a short period of time. That is the goal of this Board is to get them back on the right track. As Commissioner Hartwick said able bodied people should be working and should be taxpaying citizens, not sitting in Dauphin County Prison. Thank you for the job you are doing. HACC has always been a great partner for this community and region.
Mr. Haste: I would like to say thank you to Robin and Diane too for partnering with us on this. Matt, you probably heard me say this before, but you have been a breath of fresh air to that facility. The one thing that I ask that you do is try to track these folks. I know over at the jail where we offer GED as well, the normal recidivism rates in the high 70% those who complete GED, I think that recidivism rate drops to the low 30%. There has been a significant difference in those who get an education and move forward. As both my colleagues said that is the critical part to getting a job that can support a family. The only other thing that I think we should look to do in the future is a shortfall that I see in us being able to properly educate these adults and move them forward is what I call those who have a certificate or diploma, but really don't test at that level. In the past, I talked at the jail they don't really qualify for the GED. I almost wish we would take everybody that comes in and tell them that they need to take the GED course and pass it, because there are a number of folks who have a high school diploma who, testing wise, are not as bright as those who took the GED. They have their certificate, but they never got the education. Somehow I think that is the next void we need to try to fill if we are truly going to move to this where we get everybody who moves out of there down to that 30% recidivism rate and we don't see them again. I think there is a big gap in there. I do want to commend you. Some could argue that these programs were available before, but they weren't at the facility. By bringing a lot of this to the facility, we know these folks sometimes aren't the most motivated folks. That is why they have gotten into the problems they have gotten into. If we can make this easier for them I think in the long run they will become a better person. Thank you very much.
Mr. Miller: The more programs that we can bring in are a huge dividend to the population at the Work Release Center.
Dr. Vereen: Some residents at the Work Release Center may wrestle with lack of skills and education before reentry to society. As hope in the form of education is extended to these men, the hopelessness may begin to erode and a new reality may be established thanks to the collaboration that exists between HACC and the Work Release Center. As citizens of the community in Dauphin County, I challenge you to become more aware of the need to educate and train these men. Reality is that their reentry may be into your community. Equipping men with education or a vocational trade may result as successful alternatives to criminal life. For example, three of my students expressed the intent to attend a trade school upon receiving their GED. Another had no knowledge that there still existed an opportunity for him to go to college. He was encouraged by our counselor at HACC when he was taken there to register for GED testing. If you were able to change one man, overt one crime or save one life it is a good thing.
Commissioners: Thank you!
D. Stephen Hetrick of Retirement Collaborative LLC
1. Recommendations from the Voluntary Employee Benefits Committee
Mr. Hetrick: I'm Stephen Hetrick with Retirement Collaborative. I'm here to talk about the Dauphin County Deferred Compensation Account and some changes that were approved by the Voluntary Employee Benefits Committee. As with the pension plan, the Deferred Compensation Plan is governed by an investment policy statement, which outlines the due diligence that we perform on the plan to make sure that the participants have good quality investment options inside the plan. As part of that due diligence process, the Fidelity Emerging Market and the American Century Real Estate Funds, they have been on the watch list. They were not showing signs of improvement so we are recommending them for replacement. The Fidelity Emerging Market Fund once a fund is approved for replacement we do a manager's search. That is outlined in the investment policy statement to the criteria that we use. We selected the Evergreen Emerging Markets Fund A. For replacement of the American Century Real Estate Fund A we are recommending the First American Real Estate Securities A. I think that the overall performance will be better in these new funds. It is one of those things that when you select a fund you know what they did in the past, you don't know what they
are going to do in the future. That is why we have this due diligence process so that if a fund does not meet that criteria and they are under performing and not showing signs of improvement, they will be replaced with a Fund. It is similar to what you do with the pension plan.
I'm asking that you vote to approve the replacement of the Fidelity Emerging Market Fund with the Evergreen Emerging Markets Growth Fund A and replace the American Century Real Estate Fund A with the First American Real Estate Securities A. We also reviewed the model portfolios and their asset allocation meaning how they are invested in the underlying funds. There are five different models that are available to participants and they provide a diversified portfolio based upon a participant's risk or award parameters such as if someone wants a very conservative portfolio with Capital Preservation as being the key investment objective, we've got the conservative portfolio going all the way up to the aggressive portfolio, which is designed for more aggressive investors. There are some changes that we would like to recommend that are just slight tweaks to the asset allocation. One of the investment themes would be in the international sector, increase the stock exposure just slightly in the international stocks, but within that sector add more to the Fidelity Emerging Markets and have less in the development markets. We all know what is going on I imagine over in Europe with Greece and Spain. There are several other European countries that are having fiscal problems and there are problems with the sovereign debt. Those could carry over into the stock market. The emerging market sectors, I think there are more growth potential, greater demographics and also they were less affected by the financial crisis than the developed countries; if you look at their banking system. Instead of overweighting the developed countries what we are doing is equal weighting the emerging markets in developed countries within that international sector. Another slight tweak would be adding slightly to the asset allocation investments within the model, such as the T. Rowe Price Capital Appreciation and the Kalimos Convertibles Growth and Income Fund. What that does is it allows those funds to have a little bit more swing on how much they put in stocks and how much they keep in cash and bonds. Where if we are dealing with the Fidelity Emerging Markets, replacing that with a fund that is going to invest specifically in Emerging Market Stocks. With an asset allocation fund, they have a little bit of a broader parameter on the underlying investments. What I'm envisioning that portion to be is more of that swing portion, because I think the stock market this year is going to have trouble meeting its long term investment average and could potentially have a negative year. Having a manager who has the potential to have a little bit more swing in there and to invest in cash and bonds if the stock market is doing poorly could provide a better overall return for the portfolio. The other thing would be slightly increasing the bond allocation. Within the bond allocation you would be decreasing exposure to intermediate bonds and increasing to stable value. One that you are well aware of is rising interest rates. That is one of the concerns with bonds and why you are not doing a floating rate. You are doing a fixed rate to lock in the low rates now, because they could move higher. The Stable Value Account would be less affected by rising interest rates than an Intermediate Bond Fund would be. So, again, we are protecting that. These are all very minor changes in the scheme of things, but if we can pick up an extra half of a percent or percent in the portfolio returns it would be
an ideal thing for participants. The risk associated with making these changes is that the potential return could not be quite as much. There is not, by becoming slightly more conservative with these, you don't have the risk of losing money as much. It is the risk of not making quite as much money if the assumptions are wrong. Within the report that was given to you, there are the specific changes for each model. I think it will be a benefit to the participants who invest in those models.
The recommendation would be to implement the asset allocation changes to the plan's investment models that were recommended by Retirement Collaborative and approved by the Voluntary Employee Benefits Committee as per the included recommendations within the report.
Mr. Haste: How are you going to notify the employees?
Mr. Hetrick: We need to send out, through a payroll stuffer, whenever we make a change to the actual underlying funds. If the funds are recommended for replacement, Fidelity, the Real Estate one, then we would send out the payroll stuffer. We would also address that on the model changes within that correspondence to the participants. We would also use the Intranet site. We use that as a resource to provide information regarding the investments and changes that are made. Lastly, as a service update, we are looking at providing a wealth management website that participants could use where they could aggregate not only their deferred compensation account, but pool other investment assets and run more robust retirement planning software. We are making that free to the participants. It will add a lot of value there. We are also planning a series of seminars that will target as they approach retirement.
Mr. Hartwick: I think you have done a great job in active management. Our personal conversations about my own 457 plan, but also the availability for some of the new tools that you are providing to employees through your web based program is phenomenal. The only thing from my standpoint is we could do a little bit better of a job trying to notify the employees of those opportunities and getting them to be able to actively manage their account from those different solutions. You have the ability to have a manager, based upon your certain set of criteria, right there any time you choose to access your information and provide very solid advice. Just like we have done with the retirement fund for the County, we are doing things based upon performance, not based upon relationships. I want to commend you for doing a good job. I just want to make sure for the record that we have what we are changing with what in the form of our motion, because I don't think that is clearly delineated in our agenda.
Mr. DiFrancesco: I'm not comfortable voting on this without more information. I don't have this in my file.
Mr. Saylor: You can vote it next week.
Mr. Haste: We will vote on it next week so Commissioner DiFrancesco has a chance to review the information.
SALARY BOARD
A complete set of Salary Board Meeting Minutes are on file in the Commissioners' Office.
PERSONNEL
Ms. Lengle: I have an Addendum. Are there any questions on the Addendum? It is actually the second Addendum. (There were none.) It is my understanding that you received answers on the New Hire and that can go through.
It was moved by Mr. DiFrancesco and seconded by Mr. Hartwick that the Board approve the Personnel Packet as amended.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye and Mr. Hartwick – Aye; motion carried.
PURCHASE ORDERS
Mr. Baratucci: I mentioned last week that there would be one item added on Page 2, which was the ice melt and rock salt. Since then we also added an item on Page 9, which was run by Commissioner DiFrancesco. It is a replacement sign for one of the MDJs. That is actually being reimbursed by insurance. Someone hit it and Donna has already secured insurance from the guilty party so that will be reimbursed. They want to make sure there is a sign up so all clients know where they are supposed to go. The budget adjustments were made. Do you have any questions? (There were none.)
It was moved by Mr. Hartwick and seconded by Mr. DiFrancesco that the Board approve the Purchase Order Packet.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye and Mr. Hartwick – Aye; motion carried.
Mr. Baratucci: You tabled for a couple meetings those two Remote Access Requisitions. I know there has been some discussion on both of them. I just wanted to get your direction officially on the two. We have the one here for the Victim Witness office and one for Domestic Relations.
Mr. DiFrancesco: My stand on both of these is I still need to talk to Tom. When we sign up for these air cards, are they month-to-month?
Mr. Baratucci: I would have to double check with Tom. I believe they are just month-tomonth, but I would have to double check.
Mr. DiFrancesco: The conversations that I've had, specifically with Domestic Relations, was that I understand that these people need the flexibility to move to certain positions, but from what I gather wherever they are they are basically in a County facility. Whether they are at the Prison or in the Court Room, what I want to talk to Tom about is whether or not it would make a lot more sense for the County to have basically secure hotspots throughout where we are using a wireless Internet rather than having to purchase services from Verizon. Tom and I have not had the opportunity to hook up yet. I understand when people are out on the road like Tax Assessment. If this is just a matter of people being able to move within our campus to different locations with a laptop then it makes a lot more sense for us to hook up a simple wireless hotspot some place where they can do what they need to do without having to pay Verizon the fees associated with air cards and air time. My request is that we do not consider these today and that we put them off for another week.
Mr. Haste: I'm not okay with Victim/Witness. I will be a no vote there. That should be their expense.
Mr. Baratucci: Do you want to deny that one and I will let them know. We can table the other one until you have talked with Tom.
Mr. Haste: Is there a motion to approve the Air Card for Victim/Witness? There is no motion so it dies.
REPORT FROM BUDGET & FINANCE – MIKE YOHE, BUDGET DIRECTOR
Mr. Yohe presented the following report:
Report from the Office of Budget & Finance
March 3, 2010
- February 19, 2010 transferred $926,642.91 to the Payables account from the County's Concentration account for checks issued that week.
- February 26, 2010 transferred $5,368,748.92 to the Payables account and $1,960,958.46 to the Payroll account from the County's Concentration account for checks issued that week.
- Total Term Investments
- matures 7/15/10
- 1/14/10 - $20,007,860.62 6-mo. CD - Susquehanna Bank – 0.800%
- Balance today in INVEST account $1,375.49 rate 0.186%
- Balance today in Susquehanna Bank investment account $60,392,863.10 rate 0.500% (This rate is fixed for the month)
- Balance today in First National Bank investment account $7,500,000.00 rate 0.660%
(This rate equals today's PLGIT-Class interest rate of 0.110% plus 55 basis points)
Mr. Yohe: We have not posted interest yet for January or February. So, that $7.5 million the interest is still sitting there waiting to be recorded. That will be done hopefully by the next report. We have more than $7.5 million in that account.
- Balance today in Citizens Bank Municipal Money Market account $10,067.47 rate 0.200% (This rate is fixed for the month)
- Balance today in Citizens Bank Municipal Money Market Checking account $11,364.02 rate 0.200% (This rate is fixed for the month)
- Balance today in PNC Bank investment account $1,000.00 rate 0.200% (This equals today's Fed Funds rate of 0.250% minus 5 basis points)
- Balance today in Graystone Bank investment account $1,000.00 rate 0.050% (This equals today's Fed Funds rate of 0.250% minus 20 basis points)
- Balance today in Metro Bank investment account $100.00 rate 0.000% (This equals today's 90-day T-Bill rate of 0.140% minus 25 basis points)
No T.R.A.N. Line of Credit required for 2010.
Mr. Yohe: I got some interest rates for CDs. A six-month CD is still at .8%. I'm going to start staggering some of these. I'll probably throw a couple out at a year. I'm going to probably start staggering some six-month and one-year CDs when taxes start coming in.
REPORT FROM CHIEF CLERK/CHIEF OF STAFF – CHAD SAYLOR
Mr. Saylor: Commissioners, I have nothing unless there are any questions of me. (There were none.)
SOLICITOR'S REPORT – FRED LIGHTY, ESQ.
Mr. Lighty: The Solicitor's Office has nothing new to report, but would be happy to answer any questions. (There were none.)
MATTERS REQUIRING BOARD ACTION
A. Training Packet.
B. Resolution #5-2010 authorizing the Homeland Center Refinance through Upper Dauphin Industrial Development Authority.
C. Maintenance Agreement between Dauphin County and G. R. Sponaugle for EMA Building UPS, Proposal #PD24860 for the period 1/1/2010 to 12/31/2010.
D. Maintenance Agreement between Dauphin County and G. R. Sponaugle for TEGG Electrical Panel, Proposal #PD24857-Rev. for the period 1/1/2010 to 12/31/2010.
E. Grant Agreement (CFDA97.047) between Dauphin County and the Pennsylvania Emergency Management Agency for the Federal Year 2009 for Pre-Disaster Mitigation Planning.
F. Services and Space Agreement between Dauphin County and the U.S. Department of Commerce Census Bureau for the 2010 Census.
G. Adoption Assistance Agreement #2009-87.
H. HIPAA Business Associate Agreement Amendments:
1. Express Scripts, Inc.
2. Assurity Life Insurance Company
I. Homeless Assistance Program Assurance of Compliance.
J. Water Supply Agreement between Dauphin County and Gaudenzia Foundation, Inc.
K. Amendments to Human Services Development Fund Agreements between Dauphin County and:
1. Capital Area Coalition on Homelessness – Amendment #2
2. Children's Resource Center of PinnacleHealth, Inc. – Amendment #1
3. Shalom House, Inc. – Amendment #2
4. Center for Independent Living of Central Pennsylvania, Inc. – Amendment #2
5. Pressley Ridge, Inc. – Amendment #2
6. YWCA of Greater Harrisburg, Inc. – Amendment #2
7. The Salvation Army, Inc. – Amendment #2
8. Christian Churches United of the Tri-County Area, Inc. – Amendment #2
9. Halifax Communities That Care, Inc. – Amendment #2
10. Catholic Charities of the Diocese of Harrisburg, PA, Inc. – Amendment #2
11. International Service Center, Inc. – Amendment #2
12. The PROGRAM for Female Offenders of South Central Pennsylvania, Inc. – Amendment #2
13. Family Support of Central Pennsylvania, Inc. – Amendment #2
14. The Three Star Foundation, Inc. – Amendment #2
15. United Cerebral Palsy of Central Pennsylvania, Inc. – Amendment #2
16. CONTACT Helpline, Inc. – Amendment #2
17. Community Action Commission, Inc. – Amendment #2
L. Performing Artist Contract – Dauphin County Music & Wine Festival – June 13, 2010 – "Solas", TG2 Artists, LLC.
M. Maintenance Agreement between Dauphin County and Herre Bros., Inc. for HVAC, Plumbing and Electrical Services.
N. Intragovernmental Transfer Agreement between Dauphin County and the City of Harrisburg. County to transfer one (1) motor vehicle, 2002 Mercury to the City of Harrisburg.
O. Energy Conservation and Assistance Agreement between Dauphin County and UGI HVAC Companies.
P. Energy Conservation and Assistance Agreement between Dauphin County and P & T Pool Services.
Q. NRG – County Cooling Service Agreement Amendment #2.
R. Strike-off of penalties for 2009 Delinquent County Taxes for Parcel No. 43-017-152, 40 Creek Road in the amount of $96.51.
S. Strike-off of penalties for 2009 Delinquent County Taxes for Parcel No. 63-071-041, 6131 Driftwood Drive in the amount of $103.62.
T. Waiver of Bureau Costs for 2009 Real Estate Taxes for Parcel No. 34-030-002-046-0001, 46 Beshore Island in the amount of $30.00.
U. Repository Bid received from Christina Boswell-Freytes for Parcel No. 09-052-092, 33 S. 16 th Street, Harrisburg - $300.00.
V. Purchase of Service Per Diem Rates between Children & Youth and Keystone Children & Family Services, Inc.
W. Appointment of Dori J. Pitzner as Deputy Tax Collector for Paxtang Borough.
X. Strike-off of penalties for 2009 Delinquent County Taxes for Parcel No. 31-002-077, 506 Hawk View Road in the amount of $117.78.
Y. Professional Services Agreement with Kelly, Parker & Cohen LLP.
Mr. Haste: We have Items Requiring Board Action, Items A through Y. Are there any that need to be pulled out and discussed separately?
Mr. Hartwick: K 10, I need to record an abstention.
It was moved by Mr. Hartwick and seconded by Mr. DiFrancesco that the Board approve Matters Requiring Board Action, Items A through Y listed above, noting that Mr. Hartwick abstained on Item K, 10.
Question: Mr. Haste – Aye; Mr. DiFrancesco – Aye and Mr. Hartwick – Aye; motion carried.
FORMER BUSINESS
Mr. Hartwick: I just want to thank the staff for the effort that went into the State of the County. From Economic Development to our staff on the 4 th Floor to the participation of our County employees, I think they deserve a great deal of recognition for how that event went off.
NEW BUSINESS
(There were none.)
COMMISSIONERS' DISCUSSION & ACTIONS
(There were none.)
CORRESPONDENCE
Mr. Haste: We have correspondence that was received by the Board this week, Items A through G, which will be handled by the staff accordingly.
A. Notification from H. Edward Black and Associates, P.C. advising that Schiavoni, Ltd. is applying to DEP for two Chapter 105 General Permits for wetland disturbance activities at 6690 Linglestown Road in Lower Paxton Township.
A. Notification from Brinjac Engineering advising that the Washington Township Authority is submitting a renewal application for their NPDES Permit for the Loyalton Wastewater Treatment Plant.
B. Notification from Woodland Design Associates, Inc. advising that the PPL Electric Utilities Corporation is applying to DEP for an NPDES Permit for stormwater discharges associated with construction activities in South Hanover Township.
C. Receipt of a letter from LTL Consultants, Ltd. advising that they will be submitting a permit application to DEP regarding the Partridge Hills and Englewood Sewer System Project in East Hanover Township.
D. Notification from Alexander Masser advising that he is applying to DEP for a General Permit 7 for the installation of 1 agricultural stream crossing in his property at 6579 State Route 225 in Mifflin Township.
E. Receipt of a copy of a letter from Post & Schell to PA Public Utility Commission regarding the petition of PPL Electric Utilities Corporation for a Finding that a building to shelter control equipment at the Copperstone 230-69 kV Substation to be constructed in South Hanover Township is reasonably necessary for the convenience or welfare of the public Docket No. P-2010.
F. Notification from L. R. Kimball advising that Helen Bendigo is applying to DEP for a General NPDES Permit for stormwater discharges associated with construction activities at 11079 Clarks Valley Road (construction of a connector taxiway and aircraft parking apron.
PUBLIC PARTICIPATION
Mr. Haste: We are again at the point in time in the meeting for public participation. Is there anyone in the audience that would like to address the Board? (There were none.)
ADJOURNMENT
There being no further business, it was moved by Mr. Hartwick and seconded by Mr. DiFrancesco that the Board adjourn; motion carried.
Respectfully submitted,
Chad Saylor, Chief Clerk
Transcribed by: Richie-Ann Martz
|
CRS Report for Congress
Received through the CRS Web
Immunities Accorded to Foreign Diplomats, Consular Officers, and Employees of International Organizations Under U.S. Law
November 8, 2005
Michael John Garcia Legislative Attorney American Law Division
The Library of Congress
Congressional Research Service ˜
Immunities Accorded to Foreign Diplomats, Consular Officers, and Employees of International Organizations under U.S. Law
Summary
To conduct foreign relations and promote the interests of their nationals located abroad, diplomatic and consular officers must be free to represent their respective States (i.e., countries) without hindrance by their hosts. Recognizing this, States receiving foreign diplomats and consular officers have long accorded such persons with certain privileges and immunities on the basis of comity, reciprocity, and international agreement. As international organizations have become increasingly important for multilateral relations and cooperation, representatives to and employees of such organizations have occasionally been granted privileges and immunities similar to those traditionally accorded to diplomats or consular officials.
This report describes the privileges and immunities generally owed by the U.S. to foreign diplomatic, consular, and international organization personnel under treaties and statutes. Among the pertinent legal authorities are the Vienna Convention on Consular Relations, the Vienna Convention on Diplomatic Relations, the International Organizations Immunities Act, the Convention on the Privileges and Immunities of the United Nations, and the Agreement Regarding the Headquarters of the United Nations. Included are charts that detail the specific types of jurisdiction and obligations from which various categories of diplomatic and consular personnel are immune under each of these authorities.
Contents
Immunities Accorded to Foreign Diplomats, Consular Officers, and Employees of International Organizations under U.S. Law
In order to conduct foreign relations and promote the interests of their nationals located abroad, States (i.e., countries) require secure means of communicating with their diplomats (i.e., representatives of a government who conduct relations with another government on its behalf) and consular officers (i.e., representatives of a government who promote the government's commercial interests and provide assistance to its citizens located in another country) stationed in other States. To ensure that such channels of communication are preserved, States receiving foreign diplomats and consular officers have long accorded such persons with certain privileges and immunities on the basis of comity, reciprocity, and international agreement. 1
As political and economic contacts between States have grown, customary practices regarding diplomatic and consular immunities have increasingly been codified via bilateral or multilateral agreement. These agreements not only describe the specific privileges and immunities to be accorded to foreign diplomats and consular officers by a receiving State, but also specify those privileges and immunities owed to other members of diplomatic and consular missions, as well as towards the family members of mission members.
In recent decades, international organizations have been viewed as a means by which States may conduct multilateral relations and cooperate on issues which are transnational in scope. In order to ensure the autonomy of such organizations and prevent any member State from unreasonably interfering with organizational functions, many international organizations and their employees have been accorded certain privileges and immunities by their member States. These privileges and immunities are typically similar in scope to those accorded to foreign diplomatic missions.
This report describes the privileges and immunities generally owed to foreign diplomatic, consular, and international organization personnel under U.S. law. The treaties and statutes discussed in this report are:
1 For background on the history of diplomatic immunity, see CRS Report RS21672; Diplomatic Immunity: History and Overview, by Michael John Garcia.
! the Vienna Convention on Diplomatic Relations (Diplomatic Convention); 2
! the Vienna Convention on Consular Relations (Consular Convention); 3
! the Agreement Regarding the Headquarters of the United Nations (Headquarters Agreement); 4
! the Convention on the Privileges and Immunities of the United Nations (U.N. Convention); 5 and
! the International Organizations Immunities Act. 6
This report contains charts detailing the privileges and immunities provided by the legal authorities mentioned above, along with the personnel to whom such privileges and immunities apply.
It is important to note that the above-mentioned authorities are not exhaustive, and the scope of immunity due in any particular case may be governed in whole or in part by other instruments. For example, the United States is a party to many bilateral consular conventions that contain immunities provisions. In most instances, the other signatory is, along with the U.S., a party to the Consular Convention. In these cases, the instrument affording greater protection to each State's consular officers is controlling. 7 Some countries with which the United States has a consular treaty are not parties to the Consular Convention. The immunities accorded to consular personnel of such States are governed by the appropriate bilateral treaties, not by the authority discussed in this report. Furthermore, not all international organizations are covered by the International Organizations Immunities Act (IOIA), or, as is the case with the United Nations, are covered not only by the IOIA but also by a number of international agreements.
Even where immunities are governed generally by the authorities cited in the relevant chart, individuals serving in similar positions for different countries may nevertheless enjoy different immunities. For example, the Diplomatic Relations Act, which effectively adopted the standards of the Diplomatic Convention for domestic application, provides that the President may, on the basis of reciprocal treatment, specify immunities for individual countries that are more or less favorable than those
2 Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 [hereinafter "Diplomatic Convention"].
3 Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 [hereinafter "Consular Convention"].
4 Agreement Regarding the Headquarters of the United Nations, Nov. 21, 1947, 61 Stat. 3416, T.I.A.S. No. 1676, 11 U.N.T.S. 11. [hereinafter "Headquarters Agreement"], Pub. L. No. 80-357 (1947).
5 Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900, 1 U.N.T.S. 15 [hereinafter "U.N. Convention"].
6 International Organizations Immunities Act, 22 U.S.C. §§ 288 et seq. [hereinafter "IOIA"].
7 See Consular Convention, art. 73.
under the Convention. 8 Both the Diplomatic Convention and the Consular Convention allow the United States to apply immunities restrictively where a particular country has applied immunity rules restrictively towards American representatives. 9 Similarly, the IOIA conditions certain immunities on the basis of treatment of American representatives abroad. 10
It must be emphasized that the immunities provided to foreign diplomats, consular officials, and employees of international organizations may be waived by the sending State or the appropriate international organization, with or without the consent of the individual involved. 11 On the other hand, certain individual acts may lead to a waiver of immunity. For example, the initiation of civil proceedings by an otherwise exempt individual may preclude him from invoking immunity with regards to a directly-connected counterclaim. 12 Another example of this type of personal waiver is the relinquishment of all immunity by consular employees and staff who undertake private gainful employment in the receiving State. 13
Finally, note that even where an individual enjoys immunity from jurisdiction, a person harmed by the immune individual nevertheless may have recourse to compensation under one of two statutes. First, the Diplomatic Relations Act requires that (1) each diplomatic mission in the United States (including otherwise immune missions to international organizations), (2) members of these missions and their families, and (3) high ranking United Nations officials all meet liability insurance requirements relating to the operation of motor vehicles in the United States. 14 Second, the Foreign Sovereign Immunities Act provides that a foreign State shall not, with limited exception, be immune from suit for money damages being sought against it for harm occurring in the United States and caused by a wrongful nondiscretionary act of one of its officials or employees acting within the scope of duty. 15
Overview of Applicable Statutes and Treaties
The following sections provide an overview of the statutes and agreements governing the privileges and immunities accorded to foreign diplomats, consular officials, employees of international organizations, and related personnel.
8 22 U.S.C. § 254c.
9 See,e.g., Diplomatic Convention, art. 47; Consular Convention, art. 72.
10 See,e.g. IOIA § 288d.
11 See, e.g., Diplomatic Convention, art. 32; Consular Convention, art. 45; U.N. Convention, §§ 14, 20; IOIA § 288d(b).
12 See Diplomatic Convention, art. 32(3); see also Consular Convention, art. 45(3).
13 See Consular Convention, art. 57(2).
14 22 U.S.C. § 254e.
15 28 U.S.C. § 1605(a)(5).
Vienna Convention on Diplomatic Relations
Pursuant to its treaty obligations under the Vienna Convention on Diplomatic Relations (VCDR), ratified in 1972, the United States accords certain privileges and immunities to designated categories of persons employed by other Convention parties' diplomatic missions, along with the household family members of certain mission employees. Persons entitled to certain privileges and immunities under the Diplomatic Convention include diplomatic agents and their immediate household families, the mission's administrative and technical staff and the immediate household families of those staff members; the mission's service staff; and private servants of members of the mission.
Under the Convention, the United States accords diplomatic agents (and members of their households) absolute immunity from its criminal jurisdiction and near-absolute immunity from U.S. civil and administrative jurisdiction. A diplomatic agent is also not obliged to give evidence as a witness. 16 Below the rank of diplomat, the administrative, technical, and service staffs also are immune from criminal jurisdiction, but have more limited immunity from civil and administrative jurisdiction. 17 The household family members of diplomatic agents and mission staff are also generally provided with the same privileges and immunities accorded to the diplomatic agent or mission staff member to which they are related. 18 To varying degrees, persons covered by the Diplomatic Convention also receive immunity from taxes and customs duties, military and public service obligations, and alien registration requirements.
Congress passed the Diplomatic Relations Act to grant the privileges and immunities accorded under the Diplomatic Convention to all foreign diplomatic missions, personnel, and the families of such personnel, regardless of whether the sending State is a party to the Convention. 19 This extension is subject to the sending State's reciprocal treatment towards U.S. diplomatic missions, personnel, and families of such personnel, along with other terms and conditions the President deems appropriate. 20
Vienna Convention on Consular Relations
The Vienna Convention on Consular Relations (VCCR), which was ratified by the U.S. in 1969, accords certain privileges and immunities to consular officers (i.e., persons who exercise consular functions on behalf of the sending State, notably including the consular post) and their immediate household families; the post's administrative and technical staff and the immediate household families of those staff members; the post's service staff; and honorary consuls (i.e., consular officers other
16 Diplomatic Convention, art. 31(2).
17 Id. art. 37.
18 Id. art. 37(1)-(2).
19 22 U.S.C. § 254c.
than career consular officers). These privileges and immunities are lesser in scope than those enjoyed by similarly-situated members of diplomatic missions and those members' household families. For example, while foreign diplomats and their family members receive full immunity from the criminal jurisdiction of the receiving State under the Diplomatic Convention, consular officers covered by the Consular Convention only receive immunity for actions they take in the course of their official functions, 21 and their family members receive no immunity from the criminal jurisdiction of the receiving State. Family members of consular employees also receive no immunity from the receiving State's civil jurisdiction. Members of the consular post and their family members do receive varying degrees of immunity from the receiving State's taxes and custom duties, 22 alien registration requirements, 23 and military service obligations. 24
The privileges and immunities owed under the Consular Convention only apply between Convention parties. The privileges and immunities owed by the U.S. to the consular personnel of non-Convention parties are governed by applicable bilateral treaty. In the case that the U.S. and another Convention party also have a bilateral treaty governing consular relations, the instrument providing broader coverage is controlling. 25
International Organizations Immunities Act
The IOIA provides a significant number of privileges and immunities for international organizations designated by the President via executive order. Certain privileges and immunities are also accorded to employees, officials, and representatives to such organizations, along with members of their immediate families, though these are less than those accorded to the international organizations themselves. Officials, employees, and representatives to designated international organizations are accorded immunity pursuant to the IOIA following validated notification to the Secretary of State of their organizational position. The terms "official," "employee," and "representative" are not defined by the IOIA The United Nations was designated as an "international organization" for purposes of the IOIA immediately following the statute's enactment. 26 Several dozen other international organizations have been designated as receiving coverage under the IOIA, including such organizations as the International Monetary Fund, 27 the International Committee
21 Consular Convention, arts. 41, 43. 22 Id. arts. 49-50. 23 Id. art. 46. 24 Id. art. 52. 25 Id. art. 73. 26 Exec. Ord. No. 9698, Feb. 19, 1946, 11 Fed. Reg. 1809. 27 Exec. Ord. No. 9751, Jul. 11, 1946, 11 Fed. Reg. 7713.
of the Red Cross, 28 the Organization of American States, 29 the World Health Organization, 30 and the World Trade Organization. 31
U.N. Convention on Privileges and Immunities
In the same year the IOIA was enacted, the U.N. General Assembly also adopted the Convention on the Privileges and Immunities of the United Nations, establishing de minimus standards for the immunities and privileges accorded to the United Nations and U.N. officials, Member State representatives, and experts working for U.N. missions. These immunities and privileges are largely similar to those accorded via the IOIA. 32 The United States ratified the Convention in 1970.
As with the IOIA, the U.N. Convention on Privileges and Immunities (UNCPI) does not define the term "employee" or "official," though this is perhaps of little concern because the U.N. Convention provides immunity only to those categories of U.N. officials (beyond the U.N. Secretary-General and all Assistant SecretaryGenerals) designated by the Secretary-General to receive protection under the Convention. 33 The Convention also does not define "experts on missions" who receive immunity under the U.N. Convention. However, an advisory decision by the International Court of Justice (which has ultimate authority to interpret the U.N. Convention), 34 found that the category of experts on U.N. missions includes, inter alia, persons entrusted by the United Nations with mediating disputes, preparing reports and studies, conducting investigations, or finding and establishing facts on behalf of U.N. missions. 35 The Convention defines "representatives" of U.N. Member States as including all delegates, advisors, and secretaries of Member State delegations. 36
Besides granting an explicit set of privileges and immunities to designated persons, the U.N. Convention also specifies that certain designated individuals (i.e., U.N. representatives, the U.N. Secretary-General, all Assistant Secretary-Generals,
28 Exec. Ord. No. 12643, Jun. 23, 1988, 53 Fed. Reg. 24247.
29 Exec. Ord. No. 10533, Jun. 3, 1954, 19 Fed. Reg. 3289.
30 Exec. Ord. No. 10025, Dec. 30, 1948, 13 Fed. Reg. 9361.
31 Exec. Ord. No. 13042, Apr. 9, 1997, 50 Fed. Reg. 28301.
32 Two notable differences are (1) the U.N. Convention provides for certain privileges and immunities for experts of U.N. missions, while the IOIA does not, and (2) the IOIA also accords certain privileges and immunities to employees of international organizations, while the U.N. Convention does not mandate such benefits.
33 Accordingly, non-designated officials and all other U.N. employees are not granted immunity from a local State's legal process via the U.N. Convention, though they may nevertheless receive immunity via the IOIA.
34 U.N. Convention, §§ 29-30.
35 See Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989 ICJ Rep. 177 (Dec. 15, 1989).
36 U.N. Convention, § 16.
and certain U.N. officials designated to receive protection under the Convention by the Secretary-General) are to receive most or all of the privileges and immunities accorded by a receiving State to diplomatic envoys. Accordingly, by reference to other statutes and treaties adopted by the receiving State, the U.N. Convention provides these U.N. officials and representatives with certain privileges and immunities beyond those explicitly described under the U.N. Convention. Generally speaking, the U.N. officials and representatives covered by the U.N. Convention are given the same privileges and immunities as those the U.S. accords to diplomats under the Diplomatic Convention. With respect to designated U.N. officials, however, Diplomatic Convention standards concerning immunity from criminal prosecution apparently are not so incorporated, as the U.N. Convention provides that such officials are immune only for official acts. 37
U.N. Headquarters Agreement
In 1947, the United States entered the Headquarters Agreement with the United Nations. The U.N. Headquarters Agreement (UNHQA) primarily concerns the privileges and immunities accorded to the United Nations and its headquarters in New York. However, the Agreement also provides certain privileges and immunities for specified U.N. representatives and related personnel residing in the United States. The Headquarters Agreement provides such persons with the full protections accorded to diplomatic envoys — a broader scope of immunity than that provided under either the IOIA or the U.N. Convention. 38 Representatives and related personnel of U.N. Member States whose governments are not recognized by the United States receive lesser privileges and immunities. 39
37 Id. § 18(a).
38 Headquarters Agreement, § 15.
| Provision | Diplomatic Agents | Household Family Mem- bers of a Dip- lomatic Agent | Administrative & Technical Staff | Household Family Mem- bers of Admin- istrative and Technical Staff | Service Staff |
|---|---|---|---|---|---|
| Definition | Head of a mis- sion or a member of the mission staff having dip- lomatic rank. VCDR, art. 1(d), (e). | Not defined by the VCDR. | Staff members employed in the administrative and technical service of the mission. VCDR, art. 1(f). | Not defined by the VCDR. | Staff mem- bers in the domestic ser- vice of the mission. VCDR, art. 1(g). |
| Criminal Jurisdiction | Immune from jurisdiction. VCDR, art. 31(1). | Same as diplo- matic agents. VCDR, art. 37(1). | Immune only for acts performed in the course of of- ficial duties. VCDR, art. 37(2). | Same as admin- istrative and technical staff. VCDR, art. 37(2). | Immune with respect to acts performed in the course of duties. VCDR, art. 37(3). |
| Provision | Diplomatic Agents | Household Family Mem- bers of a Dip- lomatic Agent | Administrative & Technical Staff | Household Family Mem- bers of Admin- istrative and Technical Staff | Service Staff |
|---|---|---|---|---|---|
| | private party, and (c) actions relat- ing to private professional or commercial ac- tivities. VCDR, art. 31(1). Must have vehicle in- surance under 22 U.S.C. § 254e. | | surance under 22 U.S.C. § 254e. | | |
| Judicial Process | Immune from obligation to give evidence. Immune from execution of judgments except in non-immune civil action where execution will not infringe on the inviolabil- ity of his person or residence. VCDR, art. 31(2), (3). Pri- vate residence deemed inviola- ble to same de- gree as diplo- matic mission. VCDR, art. 30. | Same as diplo- matic agents. VCDR, art. 37(1). | Generally im- mune to same degree as diplo- matic agents, except immune from the execu- tion in a civil judgment only if it concerns acts performed in the course of official duties. VCDR, art. 37(2). | Same as admin- istrative and technical staff. VCDR, art. 37(2). | Immune with respect to acts performed in the course of duties. VCDR, art. 37(3). |
| Provision | Diplomatic Agents | Household Family Mem- bers of a Dip- lomatic Agent | Administrative & Technical Staff | Household Family Mem- bers of Admin- istrative and Technical Staff | Service Staff | Private Ser- vants of Mem- bers of the Mission |
|---|---|---|---|---|---|---|
| Taxes | Immune other than for (a) indi- rect taxes in the price of goods/services; (b) real property taxes/fees on private immov- able property, unless held on behalf of sending State; (c) estate/ inheritance taxes on property which was not brought from sending State; (d) income tax on private in- come; (e) charges for ser- vices rendered; and (f) court, registration, or record fees, mortgage dues and stamp duty, with respect to non-mission, immovable prop- erty. VCDR, art. 34. | Same as diplo- matic agents. VCDR, art. 37(1). | Same as diplo- matic agents. VCDR, art. 37(2). | Same as diplo- matic agents. VCDR, art. 37(2). | Exempt from dues and taxes on emoluments received by reason of their employment. VCDR, art. 37(3). | Same as ser- vice staff. VCDR, art. 37(4). |
| Provision | Diplomatic Agents | Household Family Mem- bers of a Dip- lomatic Agent | Administrative & Technical Staff | Household Family Mem- bers of Admin- istrative and Technical Staff | Service Staff |
|---|---|---|---|---|---|
| | 33(1)-(2). | | | | |
| Military Service, Public Ser- vice | Immune from all public service and military obli- gations. VCDR, art. 35. | Same as diplo- matic agents. VCDR, art. 37(1). | Same as diplo- matic agents. VCDR, art. 37(2). | Same as diplo- matic agents. VCDR, art. 37(2). | No immunity in Conven- tion, but may be exempt under 50 App. U.S.C. App. § 456. |
| Immigra- tion | No specific im- munity under the Convention, but immune gener- ally from civil and administra- tive jurisdiction under VCDR, art. 31. | Same as diplo- matic agents. VCDR, art. 37(1). | Same as diplo- matic agents, with respect to actions taken in course of official duties. VCDR, art. 37(2). | Same as admin- istrative and technical staff. VCDR, art. 37(2). | Same as ad- ministrative and technical staff. VCDR, art. 37(3.) |
| Provision | Consular Offi- cer | Household Family Members of Consular Officer | Consular Em- ployee | Household Family Mem- bers of Con- sular Employ- ees | Service Staff | Honorary Consul |
|---|---|---|---|---|---|---|
| Definition | Any person, including the head of a con- sular post, en- trusted in that capacity with the exercise of consular func- tions. VCCR, art. 1(d). | Not defined by the VCCR. | Any person em- ployed in the administrative or technical ser- vice of a con- sular post. VCCR, art. 1(e). | Not defined by the VCCR. | Any person em- ployed in the domestic service of a consular post. VCCR, art. 1(f). | Consular officer other than career consular officer of the sending State. VCCR, art. 1(2). |
| Criminal Jurisdiction | Immune from jurisdiction with respect to acts performed in the exercise of con- sular functions. Immune from arrest and deten- tion pending trial, except in case of grave crime pursuant to a decision by a judicial au- thority. Crimi- nal proceedings to be conducted so as not to in- terfere unduly | No immunity under the VCCR. | Immune from jurisdiction in respect to acts performed in the exercise of con- sular functions. VCCR, art. 43. | No immunity under the VCCR. | No immunity under the VCCR. | No immunity from arrest, detention, or prosecution, but proceedings are to be carried out expeditiously with as little interference with official functions as circumstances will allow. VCCR, art. 63. |
| | with consular functions. VCCR, arts. 41, 43. | | | | | |
|---|---|---|---|---|---|---|
| Civil Juris- diction | Immune from civil and admin- istrative juris- diction with re- spect to acts performed in exercise of functions except (1) to degree that an action relates to private contract other than on behalf of sending State or (2) actions by 3rd parties for vehicle-caused damage. VCCR, art. 43. | No immunity under the VCCR. | Same as con- sular officers. VCCR, art. 43. | No immunity under the VCCR. | No immunity under the VCCR. | Same as consular officers. VCCR, art. 58(2). |
| | be given so as not to interfere with consular functions. VCCR, art. 44. | | on sending State’s law. VCCR, art. 44. | | |
|---|---|---|---|---|---|
| Taxes | Immune from taxes other than (a) indirect taxes in the price of goods/services; (b) real property taxes/fees on private immov- able property, unless held for sending State; (c) inheritance and estate taxes on property not brought from sending State; (d) income tax on private U.S. income; (e) charges on spe- cific services; and (f) court, registration, or record fees, mortgage dues and stamp du- | Same as con- sular officers. VCCR, art. 49(1). | Same as con- sular officers. VCCR, art. 49(1). | Same as con- sular officers. VCCR, art. 49(1). | Exempt from dues and taxes on wages re- ceived for their services. VCCR, art 49(2). |
| | ties on non-mis- sion property. VCDR, art. 34. | | | | |
|---|---|---|---|---|---|
| Customs | Immune from duties on arti- cles for personal or official use. Exempt from inspection ex- cept where there are serious grounds to be- lieve there are contraband arti- cles or articles not for personal or official use. VCCR, art. 50(1). | Same as con- sular officers. VCCR, art. 50(1). | Generally the same as con- sular officers with respect to articles imported at the time of fist installation. VCCR, art. 50(2). However, no immunity concerning per- sonal inspection of baggage. | No immunity under VCCR. | No immunity under VCCR. |
| Social Se- curity | Exempt with respect to ser- vices rendered for the sending State. Not ex- empt with re- spect to per- sonal servants who are U.S. nationals or per- manent resi- dents, or are not | Same as con- sular officers. VCCR, art. 48(1). | Same as con- sular officers. VCCR, art. 48(1). | Same as con- sular officers. VCCR, art. 48(1). | Same as con- sular officers. VCCR, art. 48(1). |
| Provision | Consular Offi- cer | Household Family Members of Consular Officer | Consular Em- ployee | Household Family Mem- bers of Con- sular Employ- ees | Service Staff | Honorary Consul |
|---|---|---|---|---|---|---|
| | covered by so- cial security provisions of the sending State or a third State. VCCR, art. 48(1). | | | | | |
| Military Service, Public Ser- vice | Immune from all public ser- vice and mili- tary obligations. VCCR, art. 52. | Same as con- sular officers. VCCR, art. 52. | Same as con- sular officers. VCCR, art. 52. | Same as con- sular officers. VCCR, art. 52. | Same as con- sular officers. VCCR, art. 52. | Same as consular officers. VCCR, art. 67. |
| Immigra- tion | Exempt from all laws regarding registration of aliens and resi- dency permits. VCCR, art. 46. | Same as con- sular offi- cials. VCCR, art. 46. | Exempt from registration and residency permit requirements if permanent em- ployee of send- ing State and are not engaged in private gainful occupation in the United States. VCCR, art. 46. | Exempt only to same degree as principal con- sular employee. VCCR, art. 46. | No immunity under the VCCR. | Exempt from registration and residency permit requirements, unless also engaged in private gainful occupation in the U.S. VCCR, art. 65. |
| Provision | Resident Representatives of Member States | Representatives of Member States (generally) | Secretary General, Assistant Secretaries General, Their Spouses and Minor Children | Designated U.N. Officials |
|---|---|---|---|---|
| Definition | All delegates, deputy delegates, advisors, technical experts and designated by Member State with agreement, where relevant, of the U.N. or United States. UNHQA, § 15. | All delegates, deputy delegates, advisers, technical experts and secretaries of delegations. UNCPI, § 16. | Not expressly defined. | Individuals within categories of officials designated by the Secretary- General as entitled to immunities. UNCPI, §17. |
| Criminal Jurisdiction | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., full immunity from criminal jurisdiction. VCDR, art. 31(1). | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 11(g); VCDR, art. 31(1). | Same as representatives of U.N. Member States (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR, art. 31(1). | Immune with respect to official acts. UNCPI, § 18(a). |
| Civil Jurisdiction | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. Immune except for (a) certain actions relating to real property, (b) estate matters in which the agent is acting as private party, and (c) actions relating to private professional or commercial activities. | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 11(g); VCDR, art. 31(1). | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). Must have vehicle insurance. UNCPI, § 19; 22 U.S.C. § 254e. | Immune with respect to official acts. UNCPI, § 18(a). |
| | VCDR, art. 31(1). | | | | |
|---|---|---|---|---|---|
| Judicial Process | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., immune from obligation to give evidence. Immune from execution of judgments except in non-immune civil action where execution will not infringe on the inviolability of his person or residence. VCDR, art. 31(2)-(3). Private residence deemed inviolable to same degree as diplomatic mission. VCDR, art. 30. | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 11(g); VCDR arts. 30, 31(2)-(3). | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR arts. 30, 31(2)-(3). | Immune with respect to official acts. UNCPI, § 18(a). | Immune with respect to official acts. UNCPI, § 22(b). |
| Taxes | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., immune from taxes other than (a) indirect taxes in the price of goods or services; (b) real property taxes and fees on private immovable property, unless held | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys), except with respect to excise duties and sales taxes. UNCPI, § 11(g); VCDR, art. 34. | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR, art. 34. | Immune from taxes on salaries and emoluments paid by the U.N. UNCPI, § 18(b). | No express immunity, beyond general immunity necessary for the independent exercise of their functions. UNCPI, § 22. |
| | on behalf of sending State; (c) estate and inheritance taxes not attributable to property brought from sending State; (d) income tax on private income earned in U.S.; (e) charges levied for specific services rendered; and (f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, other than mission premises. VCDR, art. 34. | | | |
|---|---|---|---|---|
| Customs | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. Immune from duties on articles for personal or official use. In U.S., exempt from inspection except where there are serious grounds to believe there are contraband articles or articles not for personal or official | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys), except with respect to duties on goods imported other than personal baggage. UNCPI, § 11(g); VCDR, art. 36. | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR, art. 36. | Immune from duties on furniture and effects imported at the time of first taking post. UNCPI, § 18(g). |
| | use. VCDR, art. 36. | | | |
|---|---|---|---|---|
| Social Security | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., exempt with respect to services rendered for the sending State. Not exempt with respect to personal servants who are U.S. nationals or permanent residents, or are not covered by social security provisions of the sending State or a third State. VCDR, art. 33(1)-(2). | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 11(g); VCDR, art. 33(1)-(2). | Same as resident representatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 11(g); VCDR, art. 33(1)-(2). | No express immunity other than for taxes on U.N. salaries and emoluments. UNCPI, § 18. |
| Military Service, Public Service | Exempt, along with spouses, from national service obligations. UNCPI, § 11(d). Generally immune on same basis as diplomatic envoys. UNHQA, §. 15; UNCPI, § 11(g). In U.S., immune from all public service and military obligations. VCDR, art. 35. | Exempt, along with spouses, from national service obligations to same degree as resident representatives. UNCPI, § 11(d), (g); VCDR, art. 35. | Exempt, along with spouses, from national service obligations to same degree as resident representatives. UNCPI, § 19; VCDR, art. 35. | Exempt from national service obligations. UNCPI, § 18(c). |
| Provision | Resident Representatives of Member States | Representatives of Member States (generally) | Secretary General, Assistant Secretaries General, Their Spouses and Minor Children | Designated U.N. Officials | Experts on U.N. Missions |
|---|---|---|---|---|---|
| Immigration | Exempt, along with spouses, from immigration restriction and alien registration requirements. UNCPI, § 11(d). Generally immune on same basis as diplomatic envoys. UNHQA, § 15; UNCPI, § 11(g). | Along with spouses, same as resident representatives. UNCPI,§ 11(d), (g). | Exempt, along with spouses and dependent relatives, from immigration restrictions and alien restrictions. UNCPI, §§ 18(d), 19. | Along with spouses and dependent relatives, same as Secretary General. UNCPI,§ 18(d). | No express immunity, beyond general immunity necessary for the independent exercise of their functions. UNCPI, § 22. |
| Provision | Foreign Representatives to, and Officials and Employees of, International Organizations |
|---|---|
| Definition | Not specifically defined by statute. |
| Criminal Jurisdiction | Immune with respect to official acts falling within their functions. IOIA, § 288d(b). |
| Civil Jurisdiction | Immune with respect to official acts falling within their functions. IOIA, § 288d(b). |
| Judicial Process | Immune with respect to official acts falling within their functions. IOIA, § 288d(b). |
| Taxes | Exempt from tax on compensation for official services except where employed by a foreign government that does not grant an equivalent exemption to U.S. government employees. 26 U.S.C. § 893. |
| Customs | Immune, along with immediate household family members, from duties with respect to baggage and effects imported in connection with the arrival of the owner. IOIA, § 288(b). |
| Social Security | Exempt from Social Security contributions related to employment in or representation to the international organization. 26 U.S.C. § 3121(b)(15). |
| Military Service, Public Service | No immunity under IOIA. Exemption from military service apparently depends on previous service abroad, applicable treaties, and immigration status. 50 App. U.S.C. § 456(a)(1). |
| Immigration | Exempt, along with immediate household family members, from immigration and alien registration requirements on same basis as officers and employees, respectively, of foreign governments and their families. IOIA, § 288d(a). |
| Provision | Resident Represen- tatives of Member States | Representa- tives of Mem- ber States (gen- erally) | Secretary General, As- sistant Secre- taries Gen- eral, Their Spouses and Minor Chil- dren | Designated U.N. Officials | Non-desig- nated U.N. Officials and U.N. Employ- ees | Experts on U.N. Missions |
|---|---|---|---|---|---|---|
| Definition | All delegates, deputy delegates, advisors, technical experts and designated by Mem- ber State with agree- ment, where rele- vant, of the U.N. or United States. UNHQA, § 15. | All delegates, deputy dele- gates, advisers, technical ex- perts and secre- taries of delega- tions. UNCPI, § 16. | Not expressly defined. | Individuals falling within categories of officials des- ignated by the Secretary- General as entitled to immunities. UNCPI, §17. | Not expressly defined. | Not expressly defined. |
| Criminal Jurisdiction | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., ac- | Same as resi- dent representa- tives (i.e., re- ceive same im- | Same as resi- dent represen- tatives (i.e., receive same | Immune with respect to offi- cial acts. UNCPI,§ | Same as des- ignated U.N. officials. IOIA, § | Immune from personal arrest and detention. UNCPI, § |
| | corded full immunity from criminal juris- diction. VCDR, art. 31(1). | munities ac- corded to diplo- matic envoys). UNCPI, § 11(g); VCDR, art. 31(1). | immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR, art. 31(1). | 18(a); IOIA, § 288d(b). | 288d(b). | 22(a). Immune with respect to official acts. UNCPI, § 22(b); IOIA, § 288d(b). |
|---|---|---|---|---|---|---|
| Civil Juris- diction | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. In U.S., immune except for (a) certain actions relating to real property, (b) estate matters in which the agent is acting as private party, and (c) actions relating to private professional or com- mercial activities. VCDR, art. 31(1). | Same as resi- dent representa- tives (i.e., re- ceive same im- munities ac- corded to diplo- matic envoys). UNCPI, § 11(g); VCDR, art. 31(1). | Same as resi- dent represen- tatives (i.e., receive same immunities accorded to diplomatic envoys). UNCPI, § 19; VCDR, art. 31(1). Must have vehicle insurance un- der 22 U.S.C. § 254e. | Immune with respect to offi- cial acts. UNCPI, § 18(a); IOIA, § 288d(b). | Same as des- ignated U.N. officials. IOIA, § 288d(b). | Same as designated U.N. officials. UNCPI, § 22(b); IOIA, § 288d(b). |
| Judicial Process | Receive same immu- nities as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. Immune from obligation to give | Same as resi- dent representa- tives (i.e., re- ceive same im- munities ac- corded to diplo- | Same as resi- dent represen- tatives (i.e., receive same immunities accorded to | Immune with respect to offi- cial acts. UNCPI, § 18(a); IOIA, § 288d(b). | Same as des- ignated U.N. officials. IOIA, § 288d(b). | Same as designated U.N. officials. UNCPI, § 22(b). |
| | that brought from sending State; (d) income tax on pri- vate U.S. income; (e) charges for specific services; and (f) reg- istration, court or record fees, mort- gage dues and stamp duty, with respect to non-mission, im- movable, property. VCDR, art. 34. | | | | |
|---|---|---|---|---|---|
| Customs | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. Immune from duties on articles for personal or official use. In U.S., exempt from inspection ex- cept where there are serious grounds to believe there are contraband articles or articles not for personal or official use. VCDR, art. 36. Immediate house- | Same as resi- dent representa- tives, including with respect to immunities ac- corded to imme- diate household family mem- bers. UNCPI, § 11(g); VCDR, art. 36; IOIA, § 288(b). | Same as resi- dent represen- tatives, includ- ing with re- spect to im- munities ac- corded to im- mediate household family mem- bers. UNCPI, § 11(g); VCDR, art. 36; IOIA, § 288(b). | Immune, along with immediate household family mem- bers, from duties with respect to bag- gage and ef- fects imported in connection with the ar- rival of the owner. IOIA, § 288(b). | Same as des- ignated U.N. officials. IOIA, § 288(b). |
| | hold family members are immune from duties with respect to baggage and effects imported in connec- tion with the arrival of the owner. IOIA, § 288(b). | | | | |
|---|---|---|---|---|---|
| Social Se- curity | Same as diplomatic envoys. UNCPI, § 11(g); UNHQA, § 15. Exempt with respect to services rendered for the sending State. Not exempt with respect to personal servants who are U.S. nation- als or permanent residents, or are not covered by social security provisions of the sending State or a third State. VCDR, art. 33(1)- (2). | Same as resi- dent representa- tives (i.e., re- ceive same im- munities as dip- lomatic envoys). UNCPI, § 11(g); VCDR, art. 33(1)-(2). | Same as resi- dent represen- tatives (i.e., receive same immunities as diplomatic envoys). UNCPI, § 19; VCDR, art. 33(1)-(2). | Exempt from Social Secu- rity contribu- tions related to employment in or represen- tation to the international organization. 26 U.S.C. § 3121(b)(15). | Same as des- ignated U.N. officials. 26 U.S.C. § 3121(b)(15). |
| Military Service, Public Ser- vice | Exempt, along with spouses, from na- tional service obliga- tions. UNCPI, § 11(d). Generally im- mune on same basis as diplomatic en- voys. UNHQA, §. 15; UNCPI, § 11(g). In U.S., immune from all public ser- vice and military obligations. VCDR, art. 35. | Exempt, along with spouses, to same degree as resident repre- sentatives (i.e., immune on same basis as diplomatic en- voys). UNCPI, § 11(g); VCDR, art. 35. | Exempt, along with spouses, to same de- gree as resi- dent represen- tatives (i.e., immune on same basis as diplomatic envoys). UNCPI, § 19; VCDR, art. 35. | Exempt from national ser- vice obliga- tions. UNCPI, § 18(c). | No express immunity. Exemption apparently depends on previous ser- vice abroad, applicable treaties, and immigration status. 50 App. U.S.C. § 456(a)(1). |
|---|---|---|---|---|---|
| Immigra- tion | Exempt, along with spouses, from immi- gration restriction and alien registration requirements. UNCPI, § 11(d). Other immediate household family members are also | Same as resi- dent representa- tives (including with respect to immunities ac- corded to spouses and other immediate household fam- | Exempt, along with spouses and dependent relatives, from immigration restrictions and alien re- strictions. UNCPI, §§ | Same as Sec- retary General (including with respect to immunities accorded to spouses, de- pendent rela- tives, and | Exempt, along with immedi- ate household family mem- bers, from immigration and alien reg- istration re- quirements on |
| Provision | Resident Represen- tatives of Member States | Representa- tives of Mem- ber States (gen- erally) | Secretary General, As- sistant Secre- taries Gen- eral, Their Spouses and Minor Chil- dren | Designated U.N. Officials | Non-desig- nated U.N. Officials and U.N. Employ- ees |
|---|---|---|---|---|---|
| | exempt from immi- gration and alien registration require- ments on same basis as officers of foreign governments and their families. IOIA, § 288d(a). | ily members). UNCPI, § 11(d); IOIA, § 288d(a). | 18(d), 19. Other immedi- ate household family mem- bers are also exempt from immigration and alien reg- istration re- quirements on same basis as officers of foreign gov- ernments and their families. IOIA, § 288d(a). | other immedi- ate household family mem- bers). UNCPI, §§ 18(d), 19; IOIA, § 288d(a). | same basis as officers and employees, respectively, of foreign governments and their fam- ilies. IOIA, § 288d(a). |
|
Review
Cholera Toxin: An Intracellular Journey into the Cytosol by Way of the Endoplasmic Reticulum
Naomi L. B. Wernick 1 , Daniel J.-F. Chinnapen 1 , Jin Ah Cho 1 and Wayne I. Lencer 1,2, *
1 GI Cell Biology, Children's Hospital (and Harvard Medical School), 300 Longwood Avenues,
Enders 720, Boston, MA 02115, USA; E-Mails: email@example.com (N.L.B.W.); firstname.lastname@example.org (D.J.-F.C.); email@example.com (J.A.C.)
2 The Harvard Digestive Diseases Center, Boston, MA 02115, USA
* Author to whom correspondence should be addressed; E-Mail: firstname.lastname@example.org; Tel.: +617-919-2573; Fax: +617-730-0498.
Received: 27 January 2010; in revised form: 27 February 2010 / Accepted: 2 March 2010 / Published: 5 March 2010
Abstract: Cholera toxin (CT), an AB5-subunit toxin, enters host cells by binding the ganglioside GM1 at the plasma membrane (PM) and travels retrograde through the trans-Golgi Network into the endoplasmic reticulum (ER). In the ER, a portion of CT, the enzymatic A1-chain, is unfolded by protein disulfide isomerase and retro-translocated to the cytosol by hijacking components of the ER associated degradation pathway for misfolded proteins. After crossing the ER membrane, the A1-chain refolds in the cytosol and escapes rapid degradation by the proteasome to induce disease by ADP-ribosylating the large G-protein Gs and activating adenylyl cyclase. Here, we review the mechanisms of toxin trafficking by GM1 and retro-translocation of the A1-chain to the cytosol.
Keywords: cholera toxin; retro-translocation; ERAD; retrograde pathway; lipid rafts
1. Introduction
Cholera toxin (CT) is the causative agent for the massive secretory diarrhea seen in Asiatic cholera. CT is secreted by the gram-negative bacterium Vibrio cholerae in the intestinal lumen. From here, it passes into and across the barrier of polarized epithelial cells that line the intestine by hijacking endogenous pathways to induce toxicity (Figure 1). CT begins its journey into the host cell by binding to the ganglioside GM1. The toxin then enters the cell by various modes of endocytosis, traffics retrograde from the plasma membrane (PM) to the trans-Golgi Network (TGN) and ultimately reaches the endoplasmic reticulum (ER). Trafficking in this pathway is likely dependent on the ability of GM1 to associate with lipid rafts. Once in the ER, CT masquerades as a terminally misfolded protein to co-opt mechanisms for ER associated degradation (ERAD) and cross the ER membrane into the cytosol in a process termed retro-translocation. In the lumen of the ER, the enzymatically active portion of the A-subunit, the A1-chain, is unfolded by protein disulfide isomerase (PDI) [1]. How the A1-chain crosses the ER membrane is unclear. Once in the cytosol, the enzymatically active A1-chain refolds, avoids rapid degradation, gains access to its substrate, and induces toxicity. This paper will review current ideas for how the toxin gains access to the ER and hijacks the ERAD pathway. (Table 1 summarizes the key host cell factors involved.)
Figure 1. Current model for CT cell entry and intoxication. CT, via its B-subunit, binds to GM1 on the apical membrane of intestinal epithelial cells. It then traffics through early and recycling endosomes [2,3] to the TGN, perhaps bypassing the Golgi apparatus for eventual delivery to the ER [4,5]. From here, CT can recycle between the Golgi and ER (dotted arrows) [4]. Once inside the ER, the A1-chain is unfolded by PDI [1], recognized by the ER Hsp70 chaperone BiP (heavy chain binding protein) [6] and is presumably rendered a soluble substrate for retro-translocation by the ERAD-lumenal pathway [7]. Retro-translocation possibly involves the ER membrane proteins Hrd1, derlin-1 [8–10] and the Sec61 translocon [11]. Upon entry into the cytosol, the A1-chain refolds into its native conformation and activates adenylate cyclase (AC) by ADP-ribosylation of the heterotrimeric G-protein Gs. The increase in cAMP causes chloride secretion and the massive diarrhea that typifies cholera [12].
2. Structure and Function
CT belongs to the larger family of AB toxins [13]. These toxins are characterized by having an enzymatically active A-domain, responsible for inducing toxicity, and a cell binding B-domain, responsible for cell entry. The AB toxins often consist of a single polypeptide chain that are cleaved into individual A and B components (e.g., ricin and diphtheria toxin), while others are comprised of individual A and B polypeptides that self assemble during the process of intoxication (e.g., anthrax toxin.) A subset of the AB family, the AB5 family of toxins, are comprised of six polypeptides, a single A-subunit and a homopentameric B-subunit that self assemble to form the holotoxin prior to secretion from the microbe. CT typifies this AB5 family of toxins. Other members include the closely related heat labile enterotoxins, as well as shiga toxin, the shiga-like toxins, and pertussis toxin.
The 27 kDa A-subunit of CT is comprised of an A2- and enzymatically active A1-chain, which is linked non-covalently to the B-subunit via the A2-chain (Figure 2). The A-subunit contains a serine-protease cleavage site located between residues 192 and 195 that allows for cleavage of the A-subunit into two polypeptides: the A2-chain and A1-chain. A disulfide bond between residues 187 and 199 bridges these chains together. Both the peptide and disulfide bonds must be broken before the A1-chain can enter the cytosol of host cells. The B-subunit consists of five 11.5 kDa peptides assembled non-covalently into a stable homopentamer that binds to the ganglioside GM1 on the PM. The B-subunit-GM1 complex carries the A-subunit into the ER [4].
Following retro-translocation, the A1-chain enters the cytosol as an active ADP-ribosyltransferase that modifies the heterotrimeric G protein, Gsα. Modification of this G protein leads to the constitutive activation of adenylate cyclase and the rapid production of cAMP. In intestinal cells, this induces intestinal chloride secretion, which is accompanied by a massive movement of water and the diarrhea that is the hallmark of cholera.
3. Retrograde from the PM to the ER
3.1. Binding and Entry via the PM
Cholera toxin begins its intracellular journey by binding to the ganglioside GM1 located on the outer leaflet of apical membranes of intestinal epithelial cells. GM1 is the vehicle that transports the toxin all the way backwards in the secretory pathway from PM to ER. When clustered by binding to the B-subunit, GM1 shows preferential association with membrane microdomains, termed "lipid rafts," composed of gangliosides, cholesterol, GPI-anchored proteins and sphingomyelin (Figure 3) [16,17]. Spatial and temporal information on these microdomain structures has proven difficult to obtain with conventional imaging methods due to resolution limits. Recent advances, however, have revealed they may be very small in size and highly dynamic, existing for 10-20 ms and having a diameter of less than 20–50 nm [18–20]. CT can bind up to five GM1 molecules at once by virtue of the ring-like pentameric structure of the B-subunit. This essentially clusters the ganglioside ceramide chains in the plane of the membrane and has been shown to increase the affinity of the GM1-CT complex with lipid rafts [16]. The association of CT with lipid rafts appears to be crucial for toxicity [4] and toxin clustering of GM1 likely increases the efficiency of retrograde trafficking to the ER, perhaps by stabilizing lipid raft microdomains, by inducing membrane curvature [21], or by simply enhancing the affinity for binding GM1 [22].
Figure 3. Retrograde Trafficking from the PM to the ER. CT binds to the ganglioside GM1 (blue) found in membrane microdomains (lipid rafts–green) on the plasma membrane of host cells, and can cluster five GM1 molecules at once. The toxin enters the cell by various endocytic mechanisms, including clathrin and caveolin-dependent, as well as caveolin and dynamin-independent mechanisms, and traffics to early and recycling endosomes [26–28,32]. Transport to the TGN involves many different proteins including V- and T-SNAREs [35,36]. From the TGN, the toxin traffics to the ER, apparently bypassing the Golgi-cisternae. A fraction of CT might be transported directly from endosome to ER. In the ER, the A1-chain is unfolded and retro-translocated to the cytosol. Available evidence indicates that the toxin B-subunit is bound to GM1 for the duration of the journey back to the ER.
The heterogeneous lipid composition of the PM has been shown to be important for CT function. In cells depleted of membrane cholesterol or sphingomyelin, downstream trafficking to the Golgi is inhibited and toxicity is attenuated [23,24]. Similar observations have been made for Shiga-like toxin [25]. Presumably, this reflects the dependence of CT and Shiga-like toxin on lipid raft microdomains.
3.2. Endocytosis and Trafficking Back to the ER
Toxin endocytosis en route to early endosomes from the PM can occur by various mechanisms [26–28]. Some pathways appear more or less prominent depending on the cell type studied. Early studies demonstrated a non-clathrin coated caveolar mechanism of endocytosis as the major route of entry in rat liver, HeLa, 3T3 and BHK cells [26,29,30]. Endocytosis has also been shown to occur via clathrin-mediated mechanisms in human intestinal Caco2 cells and pig enterocytes [27,31,32]. In enterocytes, caveolar endocytosis appeared to be a minor pathway. Non-clathrin/non-caveolar modes of endocytosis have also been observed with monkey kidney epithelial (BSC-1) cells and mouse embryonic fibroblasts (MEFs) [28,33]. Simultaneous dominant-negative expression of mutant proteins in BSC-1 cells to inhibit clathrin-, caveolar- and ARF6-dependent endocytosis revealed a non-dynamin dependent mechanism for vesicle budding. Immunoelectron microscopy of MEFs lacking caveolin-1 have identified tubular and ring-like endocytic carriers termed GPI-enriched early endosomal compartments (GEECs) that originate from the PM and are involved with cdc42-mediated uptake mechanisms [33]. The results of these studies show that CT can enter the cell by many different means. Regardless of the mode of entry, however, the toxin is found in early endosomal vesicles containing the small GTPase Rab5. Perhaps, the decisive steps in sorting retrograde to the ER take place in this compartment.
Early endosome to Golgi transport for CT is not completely understood, but the toxins, in general, are thought to move from early endosomes to TGN, independent of the late endosome pathway [34–36]. The mannose 6-phosphate receptor uses the late endosome to TGN route involving Rab9, T-SNARES Syntaxin 10 (STX10), STX16 and V-SNARES VAMP3, and Vti1a. CT and Shiga, however, are transported directly to the TGN from the early endosome via STX6-, Rab6A'-, and Golgin97-mediated vesicle docking to the TGN involving the aforementioned SNAREs, with exception of STX10 [36–38]. This pathway has been shown to be dependent on cdc42 and utilizes actin and microtubules (reviewed by Sandvig et al. [39]). Both CT and Shiga toxin require STX5, though Shiga appears to be more sensitive to depletion of this protein [35]. The retromer complex has also been identified as a key component in retrograde Shiga transport from endosomes to the TGN [40,41]. The retromer consists of sorting nexins SNX1, SNX2 and Vps26, Vps29 and Vps35, and functions by associating with membrane lipids in early and recycling endosomes to sense curvature and facilitate tubulation away from these organelles. Overall, it appears that Shiga and CT use a similar, though perhaps not identical, pathway from the PM to the TGN.
From the TGN, cholera toxin is transported to the ER via a COPI-independent pathway in human intestinal T84 cells [5]. Using the small molecule agent, Exo2, which collapses the Golgi stacks but does not affect the TGN, it was found that CT-GM1 might bypass the Golgi cisternae trafficking directly to the ER [5]. The pathway from TGN to ER in almost all cells is, however, sensitive to Brefeldin A, a fungal metabolite known to induce tubulation of the TGN and subsequent dispersion into endosomes and ER membranes [42]. The brefeldin block occurs before toxin entry into the TGN.
It is possible that a fraction of the toxin moves directly from endosomes to the ER, bypassing the TGN entirely (Saslowsky and Lencer unpublished data). Interestingly, the A-subunit, of CT harbors a conserved KDEL motif that is not essential for transport to the ER [43]. Rather, the KDEL-motif appears to allow for retention in the ER, by recycling CT between ER and cis-Golgi, and enhanced interaction with ERAD proteins for retro-translocation.
4. From ER to cytosol
4.1. The A1-chain Hijacks the ERAD Pathway
Proteolytic cleavage of the loop connecting the A1- and A2-chains of CT occurs following secretion from Vibrio cholerae in the intestinal lumen. The A and B-subunits, however, remain folded stably together; even after the disulfide bond linking the two chains is reduced [44]. The A1-chain must actively be released from the toxin complex. This is achieved within the ER lumen by the redox-dependent chaperone, protein disulfide isomerase (PDI) [1]. Upon entering the ER, the A-chain of CT (CTA) is recognized by the reduced form of PDI, which binds to and unfolds the A1-chain. At the same time, the PDI-like protein, Erp72, works in opposition to mediate the refolding and ER retention of CTA [45]. In the end, PDI succeeds in unfolding the A1-chain. The basis for this recognition is not known, but might be initiated by a relative instability of fold of the A-subunit [46,47,48], or perhaps by exposure of the hydrophobic C-terminal domain of the A1-chain upon unfolding by PDI, thus triggering the response for disposing of terminally-misfolded host cell proteins in the secretory pathway [49,50]. Recent NMR-based structural data as well as 4,4'-bis(1-anilinonaphthalene 8-sulfonate) fluorescence studies complement this hypothesis by illustrating disorder within the C-terminal A12 and A13 regions [51]. Nevertheless, the exact motif responsible for PDI binding remains unknown. The PDI-A1-chain complex is then presumably targeted to a protein on the lumenal membrane of the ER [52], after which the ER oxidase, Ero1, likely oxidizes PDI to induce the release of the A1-chain [52]. PDI may not be the only chaperone responsible for unfolding of the A1-chain. Additional in vitro evidence suggests that the Hsp70 chaperone BiP (heavy chain binding protein) plays a major role in maintaining the A1-chain in a soluble, export-competent state [6]. Bip allows for proper folding of nascent peptide chains in the secretory pathway and plays an important role in regulating the unfolded protein ER stress response and in the retro-translocation of several ERAD substrates [53].
4.2. Escape from the ER into the Cytosol
Many groups speculated that CT, like other ERAD substrates [54,55], crossed the ER membrane through a protein-conducting channel initially thought to be the translocon Sec61 [56,57]. Evidence for this idea was reported by Schmitz et al. [11]. These experiments were performed in a cell-free export system using translocation-competent microsomes. The results show that CT co-immunoprecipitates with Sec61β and that blockade of Sec61 by ribosome binding inhibits retro-translocation of the A1-chain. There are problems, however, with the idea that Sec61 operates in this way [50], and other possibilities for the identity of the channel have emerged [8–10], including the idea that a channel is not required at all [58].
We presume the PDI-A1-chain complex is released to the ER lumen when dissociated from the B-subunit. In yeast, misfolded ER lumenal proteins are processed for retro-translocation by a core multi-protein complex containing the Derlin-1 homologue Der1 and the ubiquitin E3 ligase Hrd1 (the ERAD-L pathway) [7,59]. In mammalian cells, the pathways for retro-translocation are more diversified [55,60], but the Derlin and Hrd1/gp78 proteins are required for retro-translocation of all lumenal ERAD substrates so far tested [61,62]. Hrd1 and Derlin-1 are multi-spanning membrane proteins, both considered candidates for the protein-conducting channel responsible for retro-translocation of ER lumenal or membrane substrates [55]. Most (but not all) ERAD substrates are ubiquitinated, primarily on Lys residues, during the retro-translocation reaction, and both Hrd1 and gp78 are E3-ligases known to play a role in this process [63].
Recently, Dixit et al. and Bernardi et al. have implicated a role for the ER membrane proteins Derlin-1 and Hrd1 in retro-translocation of the CT A1-chain [8–10]. Dixit et al. [8] showed that cells upregulated in the expression of Derlin-1 protein were more sensitive to intoxication by CT, and cells lacking Derlin-1 (by siRNA suppression) were resistant. Interaction between Derlin-1 and CT was supported by co-immunoprecipitation. Bernardi et al. found a role for Derlin-1 in the retro-translocation of CT using 293T cells transiently expressing dominant negative Derlin-1 [9]. Here, retro-translocation of the CT A1-chain was measured directly, and less A1-chain was found in the cytosol of cells expressing dominant negative Derlin-1. Toxicity was also inhibited. Again, direct interaction between the two proteins was suggested by co-immunoprecipitation.
Bernardi et al. [10] also showed a role for Hrd1 and another E3 ubiquitin ligase, gp78, both known to interact with Derlin-1 [64,65] and implicated in the retro-translocation of terminally misfolded (or otherwise targeted) lumenal (soluble) and membrane protein ERAD-substrates [7,66,67]. Hrd1 functions as an oligomer in complex with USA1 [68], as a homodimer [69] and as a heterodimer in complex with gp78 [65]. Dominant negative Hrd1 as well as siRNA to suppress Hrd1 were used in a cell-based retro-translocation assay, and both were found to inhibit movement of CT from ER to cytosol. Hrd1 was found to co-immunoprecipitate with CT except when dominant negative Derlin-1 was over-expressed, suggesting that CT might interact with Derlin-1 before Hrd1. Dominant negative gp78 also inhibited retro-translocation of the A1-chain, and like Hrd1, gp78 was found to co-immunoprecipitate with CT. Because Hrd1 and gp78 are E3 ubiquitin ligases, this paper also studied the role of the E2 ubiquitin-conjugating enzyme, Ube2g2, and found it to be involved. In some ways, these results were not expected because the A1-chain, unlike most ERAD substrates [55], does not depend on the presence of any of the three available primary amines for retro-translocation [70]. Perhaps ubiquitination of other cellular components, rather than direct ubiquitination of CT itself is required [10].
The model emerging from these studies proposes that the CT-GM1 complex first interacts with Derlin-1 on the lumenal side of the ER membrane [8–10], where PDI first binds the A1-chain [1]. Derlin-1 then facilitates transfer of the A1-chain to Hrd1, and/or Sec61, after release from PDI [10,11]. Our group has recently found, however, that Derlin-1 and -2 are likely dispensable for retro-translocation of the A1-chain in zebrafish and mammalian cells (Saslowsky and Lencer unpublished), and exactly how the A1-chain interacts with Hrd1 or Sec61 to cross the ER membrane remains unclear.
4.3. Cytosolic Factors
Endogenous ERAD substrates exit the ER and enter the cytosol for ubiquitination and degradation by the proteasome. CT [70] and the other AB toxins, however, escape this fate and are not rapidly degraded after retro-translocation, perhaps due to a paucity of lysine residues in their primary structures [49]. We have recently found, however, that a mutant form of the A1-chain undergoes retro-translocation but is rapidly degraded by the proteasome after being ubiquitinated at the two lysine residues present in the native toxin [71]. These results imply that other factors must be involved. It is possible that cytosolic chaperones or rapid refolding of the A1-chain upon entry into the cytosol allows CT to evade the ubiquitination machinery [71].
In a few cases, proteins not conjugated to ubiquitin are degraded by the proteasome [72]; but the majority of targets for proteasomal degradation are ubiquitinated. For many of these ubiquitinated ERAD substrates, interaction with the cytosolic AAA-ATPase p97 provides the driving force for retro-translocation [73–75]. One exception is the ubiquitin-independent ERAD substrate, pre-pro-alpha factor [76], which shows a lack of dependence on p97 in yeast [77]. Likewise, the bulk of evidence shows that p97 is dispensable for CT action in mammalian cells [9,78]. One study shows that overexpression of dominant negative p97 can inhibit CT-induced toxicity [80], but this result was not reproduced in our cell models [79]. McConnell et al., in separate studies using RNAi to suppress p97, also found no effect on CT-induced toxicity [78]. Perhaps p97 binds the A1-chain as it emerges from the ER, but this does not appear to be essential.
The lack of dependence on p97 [78,79], and the ability of the A1-chain to spontaneously refold when released from PDI in vitro [70,81], caused us to speculate that rapid refolding of the A1-chain as it emerged from the ER into the cytosol might act as a molecular ratchet to provide the driving force for retro-translocation [70]. Circular dichroism and fluorescence spectroscopy studies, however, show that the A1-chain is thermally unstable [48] and not likely to refold spontaneously in vivo. NMR as well as 4,4'-bis(1-anilinonaphthalene 8-sulfonate) fluorescence studies also demonstrate the partially unfolded state of the A1-chain in vitro [51]. Such instability challenges the idea of self-folding as a molecular ratchet and is proposed to explain why the A1-chain can be slowly degraded by the 20S proteasome in vivo, even in the absence of poly-ubiquitination [48,82]. Another important idea emerging from these studies is that the A1-chain might require binding to a cytosolic chaperone or other CT binding protein to stabilize its native conformation. In vitro, the active guanosine 5'-triphosphate (GTP) bound form of the eukaryotic ADP ribosylation factor 6 (ARF6), a cofactor for CT enzymatic activity in vivo, was found to do just that; it stabilized the A1-chain and protected it from degradation by the 20S proteasome [48,51]. Thus, binding of ARF6-GTP to the A1-chain restores order to the toxin in vitro, and this might explain how the toxin avoids rapid degradation (as discussed above) and induces toxicity in vivo.
A summary for how retro-translocation might progress is shown (Figure 4). Presumably, the last step in toxin action is a diffusion-limited reaction in the cytosol, where the A1-chain catalyzes the ADP-ribosylation of Gs to activate adenylyl cyclase.
Figure 4. Schematic of CT retro-translocation. It is still unclear exactly how retrotranslocation proceeds. This figure shows the candidate proteins thought to be involved. Following entry into the ER, CT remains bound to GM1 and can interact with Derlin-1 [8,9] and Hrd1 [10]. PDI unfolds CT [1], while Erp72 works in opposition to maintain it in a folded conformation [45]. There is evidence that Sec61 is the retro-translocation channel [11], but these studies are not fully conclusive and Hrd1 and gp78 are also candidates [10] for forming the protein-conducting channel. Perhaps, Derlin1, Hrd1, and Sec61 are located in close proximity and act together. Finally, upon entry into the cytosol the A1-chain might immediately bind Arf6 or another chaperone to refold rapidly into a stable enzymatically active conformation and to avoid rapid degradation by the 20S proteasome [48,51].
5. Summary
CT binds the ganglioside GM1 and co-opts a lipid-based sorting pathway to traffic retrograde from the PM into the ER where a portion of the toxin, the A1-chain, retro-translocates to the cytosol. Unlike most retro-translocation substrates, the A1-chain escapes degradation by the proteasome and refolds in the cytosol to induce disease. The mechanisms and host proteins involved (Table 1) in these diverse processes are fundamental to eukaryotic cell biology. They are just beginning to be understood in molecular detail, and much more is still to be discovered.
Table 1. Host proteins likely involved in CT trafficking and A1-chain retro-translocation.
| | Trafficking factors | |
|---|---|---|
| Ganglioside GM1 | | Host cell membranes: PM, endosomes, Golgi, ER |
| Lipid rafts | | Host cell membranes |
| Clathrin | | PM, endosome, Golgi |
| ARF 1– 6 | | PM, endosome, Golgi |
| Syntaxin 6 and 16 | | early endosome |
| Golgin97 | | TGN |
| Retromer | | endosome |
| Rab 6A' | | endosome, TGN |
| VAMP3, Vti1a | | TGN |
| SNX1 and 2 | | early/recycling endosome |
| Vps26, 29 and 35 | | early/recycling endosome |
| | ERAD factors | |
| Protein Disulfide Isomerase (PDI) | | ER lumen |
| ER Protein 72 (Erp72) | | ER lumen |
| ER oxidase 1 (Ero1) | | ER lumen |
| Heavy chain binding protein (BiP) | | ER lumen |
| Sec 61 translocon | | ER membrane |
| Derlin-1 | | ER membrane |
| Hrd1 | | ER membrane |
| gp78 | | ER membrane |
| Ubiquitin-conjugating enzyme (Ube) | | Cytosol |
| Ube2g2 | | Cytosol, ER associated |
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© 2010 by the authors; licensee Molecular Diversity Preservation International, Basel, Switzerland. This article is an open-access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/3.0/).
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STATE OF MICHIGAN
COURT OF APPEALS
EWI WORLDWIDE, INC., f/k/a EXHIBIT WORKS, INC.,
Plaintiff-Appellee,
V
LIFESTYLE RETAIL PARTNERS, LLC, DINO ROTONDO, KELLEY ORESKY, IZZAT HANNA, EMMETT DENHA, LIFESTYLE VENTURES, LLC, and LIFESTYLE COMMUNICATIONS, LLC,
Defendants, and
GLOBAL NETWORK COMMUNICATIONS, INC., a/k/a WIRELESS GIANT,
Defendant-Appellant.
Before: FORT HOOD, P.J., and MURRAY and SERVITTO, JJ.
PER CURIAM.
Defendant Global Network Communications, Inc. (Global) appeals as on leave granted from the trial court's order denying in part its motion for summary disposition. We reverse and remand for further proceedings consistent with this opinion. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
At issue in this case is whether the trial court erred in finding a question of fact that the enterprise formed by Lifestyle Ventures, LLC and Wireless Giant Investments, LLC, called
UNPUBLISHED
January 20, 2011
No. 295167 Oakland Circuit Court LC No. 2008-093022-CK
Lifestyle Retail Partners, LLC, was a joint venture or an "alter ego" of Global such that Global is liable for its debts. 1
Lifestyle Retail Partners, LLC was created for the purpose of developing "mobile lounge" kiosks to sell mobile phones and related products. Lifestyle Ventures, LLC and Wireless Giant Investments, LLC each owned a 50% share in the new company. The articles of organization for Lifestyle Retail Partners, LLC as a limited liability company were filed with the State of Michigan on March 1, 2006.
Contracts were executed between plaintiff and Lifestyle Retail Partners, LLC to design and construct "mobile lounge/kiosks." Plaintiff received a partial payment of $300,000 from Lifestyle Retail Partners, LLC and constructed and delivered two kiosks. Plaintiff worked on, but did not deliver a third kiosk. In the meantime, sales from the kiosks were weak and Lifestyle Retail Partners, LLC failed as a business. On October 1, 2007, Lifestyle Ventures, LLC and Wireless Giant Investments, LLC executed a separation agreement ending their business relationship. That separation agreement acknowledged that Lifestyle Retail Partners, LLC currently owed plaintiff approximately $477,000 for construction of the third, undelivered kiosk. Lifestyle Retail Partners, LLC and Lifestyle Ventures, LLC agreed to indemnify and hold harmless Wireless Giant Investments, LLC and its officers and owners against any claims arising from the debt owed to plaintiff.
Plaintiff sued Lifestyle Retail Partners, LLC and Global to collect the money owed, alleging claims for breach of contract, unjust enrichment, fraud, and conversion. Plaintiff did not name Wireless Giant Investments, LLC in its complaint, but instead sued "Wireless Giant, an assumed name for Global Network Communications, Inc." Lifestyle Communications, LLC and Lifestyle Ventures, LLC were later added as necessary parties.
Global moved for summary disposition of plaintiff's complaint pursuant to MCR 2.116(C)(8) and (10), arguing that it could not be held liable because it was not a party to the contract between plaintiff and Lifestyle Retail Partners, LLC. Plaintiff argued that Global was contractually liable for the actions of its joint venture Lifestyle Retail Partners, LLC. Plaintiff also argued that it should be allowed to "pierce the corporate veil" of the subsidiary corporations and hold Global liable for their debts under an "alter ego" theory. Plaintiff argued that questions of fact existed regarding its breach of contract claims against Global based on a theory of joint venture/alter ego liability. Plaintiff claimed that Lifestyle Retail Partners, LLC was a mere instrumentality of Lifestyle Ventures, LLC and Global, with no existence of its own, and that Wireless Giant Investments, LLC was a subsidiary created by defendant Global for the sole purpose of attempting to insulate Global from liability.
The trial court found that although no valid claim for conversion or fraud was made, material questions of fact existed that precluded granting Global summary disposition of plaintiff's claims for breach of contract and unjust enrichment. The trial court found that Global
1 "Defendant" in this opinion refers to Global.
could be found liable for the debt "based on a theory of joint venture liability and/or alter ego liability," explaining as follows:
The key factors in supporting the doctrine of alter ego liability is that it was Wireless Giant [meaning Global] which provided the personnel for the 2.5 million dollar training facility and according to Mr. Hanna (sole shareholder of [Global]) [Global] provided the point of sale program to operate the kiosk. Finally, there is a question of fact remaining that Wireless Giant Investments, the other partner in Lifestyle Retail Partners, LLC, was anything other than a mere instrument of [Global]. In re RCS Engineered Prod Co Inc, 102 F3d 223 (CA 6 1996).
* * *
Upon review of the materials presented, the court finds that there is a genuine issue of material fact as to plaintiff EWI Worldwide's complaint for breach of contract. The court finds that there is a genuine issue of material fact that [Global] is liable for the EWI contract based upon Memorandum of Agreement, Separation Agreement, and documents demonstrating the intent to create a joint venture in Lifestyle Retail Ventures.
There is also a question of fact based upon a theory of alter ego based upon the testimony of Mr. Hanna who admitted that Wireless Giant Investments was a subsidiary of [Global]. In addition, [Global] provided the personnel to train the individuals responsible for the Lifestyle Retail Partners mobile lounge kiosk project. There is sufficient evidence to create a question of fact on plaintiff's breach of contract claim against [Global] on a theory of alter ego, joint venture liability. SCD Chemical Distributors Inc v Medley, 203 Mich App 374; 512 NW2d 86 (1994).
Based on similar reasoning, the trial court found that questions of fact existed which allowed plaintiff's claim against Global to proceed under an alternative theory of unjust enrichment. The court wrote:
The court finds that there is a valid unjust enrichment claim by EWI Worldwide against Wireless Giant [sic, Global] based on the evidence of the acknowledgment of the debt and the evidence of the benefit received in terms of the Oakland Mall Mobile Lounge Kiosk as well as no express contract between EWI Worldwide and [Global].
Global moved for reconsideration, which the trial court denied.
In this Court, Global first argues that the trial court erred in finding that it was a member of the joint venture. We review de novo a trial court's decision to grant or deny a motion for summary disposition. Spiek v Dep't of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). Although substantively admissible evidence submitted at the time of the motion must be viewed in the light most favorable to the party opposing the motion, the non-moving party must come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999); Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). "Whether or not a joint venture exists is a legal question for the trial court to decide." Berger v Mead, 127 Mich App 209, 214; 338 NW2d 919 (1983). Questions of law are reviewed de novo. Anzaldua v Band, 457 Mich 530, 533; 578 NW2d 306 (1998).
We find that the trial court erred by denying Global's motion for summary disposition. The project was not a joint venture because it was not organized for a single project. Also, the court cited no evidence which would justify "piercing the corporate veil" and holding Global directly liable for Lifestyle Retail Partners, LLC's debt to plaintiff.
The trial court found that Global and Lifestyle Ventures, LLC had entered into a joint venture known as Lifestyle Retail Partners, LLC, and because of this both could be held liable for the debts incurred as partners to the joint venture. When analyzing an enterprise to see if it is a joint venture, courts must look to the intent of the parties, specifically considering the existence of: (1) an agreement indicating an intention to undertake a joint venture; (2) a joint undertaking of; (3) a single project for profit; (4) a sharing of profits as well as losses; (5) contribution of skills or property of the parties; (6) community interest and control over the subject matter of the enterprise. Berger, 127 Mich App 214-215.
The trial court erroneously concluded this was a joint venture. It was not. Lifestyle Retail Partners, LLC was not created for a single project. The Memorandum of Agreement indicates that the project would have a certain number of "executions," kiosks, and freestanding stores "to be rolled out first regionally and then on a national basis, as well as such other opportunities as the parties may mutually agree to undertake in writing." In Fletcher v Fletcher, 206 Mich 153, 167; 172 NW 436 (1919), our Supreme Court observed, "In nearly all the cases cited by counsel upon the subject of joint adventure, it appears that the adventure related to a single and isolated transaction. It is true that there are some exceptions to this statement, but in the main it will be found to be true." The project envisioned by the Lifestyle Retail Partners, LLC agreement went beyond the "single project" required to be a joint venture.
Moreover, the trial court's ruling minimized or disregarded the fact that Lifestyle Retail Partners, LLC was formed as a limited liability company and, as a result, erroneously found the members of Lifestyle Retail Partners, LLC could be held liable for its debts. Plaintiff cites Davidson v Michigan, 42 Mich App 80, 84; 201 NW2d 296 (1972), which holds, "Members of a joint adventure in general are liable on contracts with third persons which have duly been entered into on behalf, and for the purposes, of the joint adventure, and for debts arising out of such contracts. There is an individual liability on the part of a person liable as a joint adventurer." However, this rule, even if stated in binding case law, would not control where a more specific contractual or statutory provision exists. Goodwin v S A Healy Co, 383 Mich 300, 307-308; 174 NW2d 755 (1970) (holding that liability cannot be decided as a matter of law without referring to the terms of the joint agreement); Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 507-508; 309 NW2d 163 (1981) ("a statute which expressly extinguishes a common-law right is a proper exercise of legislative authority"). In this case, the applicable statute provides that ordinarily, a "member … of a limited liability company is not liable for the acts, debts, or obligations of the limited liability company." MCL 450.4501(3). "Michigan law presumes that, absent some abuse of corporate form, parent and subsidiary corporations are separate and distinct entities" with separate and distinct obligations and liabilities. Seasword v Hilti Inc (After Remand), 449 Mich 542, 547; 537 NW2d 221 (1995). Thus, unless there is "some abuse of corporate form," the protections of the limited liability company controls, rather than the more general, common-law rule cited by plaintiff. To hold otherwise, as the trial court in this case did, would completely gut the protections offered not only by the limited liability company form but also traditional corporate form. Many corporations would also be joint ventures, dissolving the protections of the corporate form. Protection from liability is one important—and acceptable— reason parties consider adopting one of these forms. Klager v Robert Meyer Co, 415 Mich 402, 411; 329 NW2d 721 (1982). Global did nothing wrong by seeking the protection offered by forming a limited liability company and the trial court erred in disregarding that form and all that it means.
Even if this were a joint venture and the members liable for the debts of Lifestyle Retail Partners, LLC, the trial court erred in "piercing the corporate veil" and looking beyond the legally identified member—Wireless Giant Investments, LLC—to Global as the "true" member. The "corporate veil" protecting a parent from the actions of its subsidiary corporation may be pierced "only where an otherwise separate corporate existence has been used to 'subvert justice or cause a result that [is] contrary to some other clearly overriding public policy.'" Seasword, 449 Mich at 547-548. As a general rule Michigan law "requires that a subsidiary must 'become a mere instrumentality of the parent' before its separate corporate existence will be disregarded." Id. To pierce a corporate veil, the corporate entity must be a mere instrumentality of another entity, the corporate entity must have been used to commit a wrong or fraud, and there must have been an unjust injury or loss to the plaintiff. Rymal v Baergen, 262 Mich App 274, 293-294; 686 NW2d 241 (2004); In re RCS Engineered Prods Co Inc, 102 F3d 223, 226 (CA 6 1996).
The trial court's opinion and order does not cite any evidence or facts which would justify piercing two corporate veils to find Global directly liable for the business debts of Lifestyle Retail Partners, LLC. While there may be some evidence that Wireless Giant Investments, LLC is related in the corporate sense to Global, because Lifestyle Retail Partners, LLC is a limited liability company, it is permitted the statutory protections its corporate form allows. Plaintiff provides absolutely no argument regarding piercing the veil of Lifestyle Retail Partners, LLC, instead relying entirely on the assertion that this was a joint venture and therefore the members are liable. Thus, we need not consider the relationship between Wireless Giant Investments, LLC and Global.
Next, Global argues that the trial court erred in allowing Lifestyle Retail Partners, LLC's liability to pass to Global on an "alter ego" theory. We agree, in large part for the reasons stated above. In order to pierce the corporate veil and attach liability beyond that of Lifestyle Retail Partners, LLC, plaintiff must show that the company was a mere instrumentality of another, that the company was used to commit a fraud or wrong, and that there must have been unjust loss or injury to the plaintiff. Nogueras v Maisel & Assoc, 142 Mich App 71, 86; 369 NW2d 492(1985). In this case, there is no proof that Lifestyle Retail Partners, LLC was an instrumentality of another entity. It was established as a limited liability company, and it prepared financial statements and tax returns. The fact that Global formed separate LLCs to limit its liability with regard to a specific business venture is unremarkable, since limitation of liability is a common reason for creating a corporation or LLC. The fact that the two members participated in the capitalization and management of Lifestyle Retail Partners, LLC is also unremarkable; neither company had sole control of the entity. Even if Global, and not Wireless Giant Investments, LLC is the "true" member of Lifestyle Retail Partners, LLC, as plaintiff asserts, there is no evidence that Lifestyle Retail Partners, LLC was actually a subsidiary of Global instead of its own company.
Finally, Global argues that the trial court erred in finding Global was unjustly enriched by plaintiff. "When reviewing a grant of equitable relief, an appellate court will set aside a trial court's factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo." McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008).
We agree with Global that the trial court erred in granting plaintiff a remedy under the theory of unjust enrichment. An unjust enrichment claim can only exist in the absence of an express contract. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). If, indeed, Global was the member of the "joint venture," then plaintiff's remedy is a contractual one, not an equitable one. If Global was not a party to the agreement with plaintiff, then plaintiff's unjust enrichment claim fails because Global did not receive any benefit from plaintiff. The facts that Global operated the kiosk it received from Lifestyle Retail Partners, LLC and that plaintiff suffered a loss does not make Global the proper party to remunerate plaintiff. The agreements initiating and terminating Lifestyle Retail Partners, LLC consistently and unambiguously state that Wireless Giant Investments, LLC was the member. Either Global was that party or it was a total stranger to the contract. Plaintiff cannot have it both ways.
We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Karen Fort Hood /s/ Christopher M. Murray /s/ Deborah A. Servitto
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Bulletin PM-ERV-B/USA
Maintenance Instruction & Parts List
Revision Date: September 2005
Supersedes: April 2002
ERV Series Value Line Rodless Linear Actuator
FAILURE OR IMPROPER SELECTION OR IMPROPER USE OF THE PRODUCTS AND/OR SYSTEMS DESCRIBED HEREIN OR RELATED ITEMS CAN CAUSE DEATH, PERSONAL INJURY AND PROPERTY DAMAGE.
This document and other information from Parker Hannifin Corporation, its subsidiaries and authorized distributors provide product and/or systems options for further investigation by users having technical expertise. It is important that you analyze all aspects of your application and review the information concerning the product or system in the current product catalog. Due to the variety of operating conditions and applications for these products or systems, the user, through its own analysis and testing, is solely responsible for making the final selection of the products and systems and assuring that all performance, safety and warning requirements of the application are met.
The products described herein, including without limitation, product features, specifications, designs, availability and pricing, are subject to change by Parker Hannifin Corporation and its subsidiaries at any time without notice.
WARNING
Offer of Sale
The items described in this document are hereby offered for sale by Parker Hannifin Corporation, its subsidiaries or its authorized distributors. This offer and its acceptance are governed by the provisions stated on the separate page of this document entitled "Offer of Sale".
General
This guide contains maintenance instructions, replacement parts information, and information on various actuator options. Consult the factory or the Product Catalog for additional information.
ERV Series Linear slides are electromechanical belt driven actuators. The mechanical capabilities and response of the units are greatly dependent on the entire drive train system including the motor or motor and gearbox combination.
In both size units an extended carriage option is offered. This option increases the actuator carriage length and significantly increases the load carrying capacity of the carriage. Please note that this option does not alter the actuator body. The body may require additional support along its length.
See the Product Catalog for additional design considerations.
Exploded View
Carriage Assembly & Preload Adjustment
When the actuators come from the factory the carriage wheels will be preloaded. If over the course of time the actuator becomes damaged or the preload is lost the wheels can be easily adjusted or if necessary replaced in the following manner.
1. Use good general safety guide lines when working on any type of machinery
2. Review the specific application for any potential personal injury and property damage while servicing the actuator.
3. Disconnect all power to the actuator.
4. If the actuator is equipped with end of travel bumpers, remove the bumper assemblies on the idler (not the motor) end of the actuator.
5. Disconnect the carriage from the shuttle by removing the three carriage bolts (8).
6. Roll the carriage off the end of the body extrusion. Note, the actuator is designed so that the carriage assembly can be removed for carriage maintenance purposes without disturbing the drive belt tension.
*** DO NOT REMOVE THE CARRIAGE ROLLER WHEELS FROM THE CARRIAGE AT THIS TIME ***
7. Review the hex nuts/roller cams (5) on the carriage. Take special note that on half of the hexes the bolt is off center inside the hex. These are the cams that produce the preload in the carriage. The other half of the hexes have the bolts in the center. These are the main load bearing roller wheels.
8. Use a removable marker of some type to identify what locations on the carriage use the off center cams. This will help you to put the carriage back together the same way (i.e. positively or negatively loaded carriage – see the product catalog for a description).
9. Only after marking the cam locations should you remove a roller assembly. If a roller needs to be replaced or the preload needs to be adjusted, remove the wheel retainer screw in combination with the appropriate sized hex wrench.
*** Note: Using a socket is the best way to get a firm grip on the roller cams (5). ***
10. If you are adjusting the preload skip to step 14, otherwise continue.
11. If you are replacing a roller you will need to remove the bearing retainer (2) from the inside of the roller wheel (3). The fit between the two pieces is tightly controlled. They will probably fall apart but they can be disassembled with finger pressure. Do not use a hammer etc.
12. Insert the bearing retainer into the roller wheel assembly.
13. Reinstall the wheel washer (4).
14. Apply a drop of removable anaerobic adhesive (thread locking agent – ex. Loctite®) to the internal threads of the bearing retainer (2).
15. Pass the wheel retainer screw (6) through the appropriate style of roller cam (i.e. on-center or offcenter). At this time take special note that there are interlocking steps milled on both the cam and the bearing retainer. The interlocking steps allow you to preload the carriage while the carriage is on the body extrusion.
16. Assemble the cam through the carriage body itself and engage the thread of the wheel retainer screw into the bearing retainer.
17. Finger tighten the wheel retainer screw while taking caution to make sure the two steps interlock.
18. If this particular cam is one with the screw in the center (i.e. for the load bearing wheels), tighten the screw to the proper torque per the specification in the rear of this instruction. Otherwise wait to tighten the screw if the following carriage preloading discussion.
19. Roll the carriage back onto the extruded cylinder body.
Adjusting the Carriage Preload – Since this step is "Pre-loading" of a carriage assembly, we will only be discussing the off center roller cams. The other cams should be properly torqued at this point.
20. Use the socket to rotate the hex/cam until the roller underneath the carriage comes into contact with the body extrusion. This is identified by a slight increase to the amount of torque required to turn the cam/socket. It is very beneficial at this point to turn the cam past the maximum preload point so that you can feel the maximum and more importantly the minimum/contact point. This also verifies that the wheel retainer screw is not tightening and you are preloading the carriage.
Note: Anymore than a minimal amount of preload puts unnecessary stress/load on the main carriage bearings and roller tire material.
21. Turn the cam back to the point at which the wheel comes into contact with the body extrusion.
22. While holding the cam in a fixed position with the socket, tighten the wheel retainer screw (6) and torque it to the specification in the rear of this instruction.
23. Be sure to adjust the wheels evenly on all three sides so that the carriage runs parallel with the body.
Note: If several of the wheels have lost their preload it may be difficult to immediately find the contact point. You may need to tighten a few of the questionable wheels and then adjust them one at a time.
Belt Tension
Tension the actuator drive belt (23) using either an inductive or laser based frequency meter. See the manual for the specific meter you have chosen for specific setup and use instructions.
1. After installation of the belt into the actuator body and the belt clamps (11), tighten the belt by hand using the belt clamp bolts (12).
2. Space the carriage assembly, that is attached to the belt by way of the shuttle, away from one of the endcaps by a distance "L" (see below chart). "L" should be measured from the centerline of the drive endcap to the attachment point of the belt to the shuttle (belt clamp bolts). Use the largest measurement possible from the chart below for tensioning (i.e. an actuator with an 850mm stroke would use the 500mm measurement).
3. Place the meter sensor approximately half way between the endcap and the carriage (i.e. "L"/2).
4. Vibrate the belt.
5. Adjust the tension of the belt by tightening or loosening the belt clamp screws (12) appropriately. This can be done through the access hole in the endcap cover plate or with a ball end hex wrench.
6. After the belt has been properly tensioned, install the plastic plugs (20) in the endcap access holes (if required).
| “L” (mm) | ERV56 (Hz ± 4 Hz) |
|---|---|
| 100 | 353 |
| 200 | 176 |
| 500 | 71 |
| 1000 | 35 |
Lubrication
The wheel and pulley bearings are pre-lubricated for the life of the unit. No additional lubrication is necessary.
Actuator Mounting
The ERV units should only be mounted down by way of the T-slots on the body of the unit. The endcaps should never be used as mounting points. The mounting holes provided on the carriage as well as the Tslots are designed to accommodate standard Parker Hannifin IPS mounting brackets in the 28mm and 40mm profile sizes (ERV56 and ERV80 respectively).
See the ERV product catalog for additional mounting gussets.
Roller Wheel Wiper Accessory
A roller wheel wiper accessory is offered for applications where large particles may accumulate on the wheel rails. This is constructed of a felt pad on either end of the carriage which will wipe the rails before the wheels pass over. Below is a parts layout for this option.
Bumper Accessory
External bumpers are available on these units for safety reasons or as emergency stops. These bumpers are designed as safety stops only and should not be used as end of stroke stops. Continuously using them as end of stroke stops may damage the drive train. See the diagram below for an exploded view of the bumper option.
Hall Effect & Reed Switches
Hall Effect and Reed switches are available for sensing the position of the carriage. This is accomplished by detecting the magnet attached to the carriage. Magnets come as standard on all units. The switches may be attached to either of the side T-slots on the actuator body and are easily adjusted to any position along the length. See the figure below for the mounting bracket hardware needed for the switches.
| Part Number | Type | LED Color | Logic |
|---|---|---|---|
| SMHnn-1P | N.O. | Green | PNP |
| SMHnn-1N | N.O. | Red | NPN |
| SMCnn-1P | N.C. | Yellow | PNP |
| SMCnn-1N | N.C. | White or Red | NPN |
| SMHnn-1PC | N.O. | Green | PNP |
| SMHnn-1NC | N.O. | Red | NPN |
| SMCnn-1PC | N.C. | Yellow | PNP |
| SMCnn-1NC | N.C. | White or Red | NPN |
| Reed Switches | | | | |
|---|---|---|---|---|
| Part Number | Type | LED Color | Rating | Cable/Connector |
| SMRnn-1 | N.O. | Green | Hi Amp | 1.5M Cable With Leads |
| SMRnn-1L | N.O. | Red | Low Amp | |
| SMDnn-1L | N.C. | Yellow | Low Amp | |
| SMRnn-1LC | N.O. | Red | Low Amp | 150mm Cable With Quick Dis. ** |
| SMDnn-1LC | N.C. | Yellow | Low Amp | |
"nn" represents place holders for the purpose of ordering pre-assembled mounting brackets for the ERV product line. Replace the "nn" with "V5" or "V8" depending on the size actuator. Note: leave blank for the switch only
** Extension cables with mating quick disconnects are purchased separately
Fastener Torque Table
| Item | Description | Qty | ERV56 | | | | |
|---|---|---|---|---|---|---|---|
| | | | Size | N-m | in-lbs | Size | N-m |
| 6 | WHEEL RETAINER SCREWS | 12 | M5 | 5.1 | 45 | M6 | 7.9 |
| 8 | CARRIAGE BRACKET SCREWS | 3 | M5 | 9.6 | 85 | M5 | 9.6 |
| 19 | END CAP SCREWS | 6 | M6 | 15.8 | 140 | M6 | 15.8 |
| 29 | WIPER PLATE SCREWS | 8 | M3 | 0.1 | 1 | M4 | 0.1 |
| 35 | BUMPER SCREWS | 4 | M6 | 0.6 | 4 | M6 | 0.6 |
| 37 | BUMPER T-SLOT SCREWS | 4 | M6 | 15.8 | 140 | M8 | 39.6 |
| 43 | INLINE COUPLING BOLT | 1 | M3 | 1.2 | 11 | M6 | 5.1 |
Generic Part List
| ITEM # | DESCRIPTION | QTY | ERV56 |
|---|---|---|---|
| 1 | Carriage/Extended carriage | 1 | ERV56R03(E) |
| 2 | Bearing retainer | 12/24 | ERV56R02 |
| 3 | Roller wheel assemblies | 12/24 | ERV56RCA |
| 4 | Wheel washer | 12/24 | WS-FHS-CM08 |
| 5 | Concentric roller cam | 6/12 | ERV56R01 |
| 5 | Eccentric roller cam | 6/12 | ERV56R04 |
| 6 | Wheel retainer screws | 12/24 | CF-CM5X0.8-018-Z |
| 7 | Magnet | 2 | ET32M10 |
| 8 | Carriage bracket screws | 3 | CS-CM5X0.8-010-Z |
| 9 | Carriage shuttle bracket | 1 | ERV56M03 |
| 10 | End of stroke stop screw – std. carriage | 2 | CS-CM5X0.8-020-Z |
| 10 | End of stroke stop screw – ext. carriage | 2 | CS-CM5X0.8-090-Z |
| 11 | Belt clamp | 2 | ER80R09 |
| 12 | Belt clamp bolts | 2 | CS-CM5X0.8-020-Z |
| 13 | End Cap cover plate | 2 | ERV56M04 |
| 14 | Drive end cap | 1 | ERV56E02 |
| 15 | Belt drive shaft | 1 | ERV56S02 |
| 16 | Pulley | 2 | ERV56P01 |
| 17 | Pulley bearings | 4 | RA446 |
| 18 | Body cover plate | 2 | ERV56M15 |
| 19 | End cap screws | 6 | CS-CM6X1.0-080 |
| 20 | Access hole plug | 2 | 18-710 |
| 21 | Bearing rear cover plate | 2 | ERV56M16R |
| 22 | Extrusion body | 1 | ERV56CXXXX |
| 23 | Belt material | 1 | ER80B01BSC |
| 23 | Belt material – high performance | 1 | ER80B02BSC |
| 24 | Idler end cap | 1 | ERV56E01 |
| 25 | Belt idler shaft | 1 | ERV56S01 |
| 26 | Bearing front cover plate | 1 | ERV56M16F |
| 27 | Wheel wiper plate | 4 | ERV56M05 |
| 28 | Felt wiper | 2 | ERV56M09 |
| 29 | SHCS – wiper plate screws | 8 | CS-CM3X0.5-016-Z |
| 35 | Bumper screws | 4 | 24-312-6 |
| 36 | Carriage bumper | 4 | B8504-32ER |
| 37 | Bumper t-slot screws | 4 | 24-320-6 |
| 38 | Bumper block | 4 | ERV56M06 |
| 39 | Drop In T-nut | 4 | 20-099 |
| 40 | Linear wiper seal | 2 | ERV56M08 |
| 41 | Drive shaft key | 1 | B8534M2-08 |
| 42 | Inline coupler | 1 | RGSM140802 |
| 43 | Inline coupler bolt | 1 | CS-CM3x0.5-012 |
Offer Of Sale
The items described in this document are hereby offered for sale at prices to be established by Parker Hannifin Corporation, its subsidiaries and its authorized distributors. This offer and its acceptance by any customer ("Buyer") shall be governed by all of the following Terms and Conditions. Buyer's order for any item described in its document, when communicated to Parker Hannifin Corporation, its subsidiary or an authorized distributor ("Seller'] verbally or in writing, shall constitute acceptance of this offer.
1. Terms and Conditions of Sale: All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of Seller's products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer's acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or inconsistent with those stated herein, proposed by Buyer in any acceptance of an offer by Seller, are hereby objected to No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller's acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer's assent to all the terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer's offer. Acceptance of Seller's products shall in all events constitute such assent.
CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ITEMS SOLD HEREUNDER, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY.
2. Payment: Payment shall be made by Buyer net 30 days from the date of delivery of the items purchased hereunder. Any claims by Buyer for omissions or shortages in a shipment shall be waived unless Seller receives notice thereof within 30 days after Buyer's receipt of the shipment.
3. Delivery: Unless otherwise provided on the face hereof, delivery shall be made F.O.B. Seller's plant. Regardless of the method of delivery, however, risk of loss shall pass to Buyer upon Seller's delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.
4. Warranty: Seller warrants that the items sold hereunder shall be free from defects in material or workmanship for a period of 365 days from the date of shipment to Buyer, or 2,00.0 hours of use, whichever expires first. THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WAR. RANTY PERTAINING TO ITEMS PROVIDED HEREUNDER. SELLER MAKES NO OTHER WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND WHATSOEVER. ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, MERCHANTIBILITY AND FITNESS FOR PURPOSE, WHETHER EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEAL ING ARE HEREBY DISCLAIMED. NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRAN. TIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR PARTIALLY, TO BUYER'S DESIGNS OR SPECIFICATIONS.
5. Limitation Of Remedy: SELLER'S LIABILITY ARISING FROM OR IN ANY WAY CONNECTED WITH THE ITEMS SOLD OR THIS CONTRACT SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF THE ITEMS SOLD OR REFUND OF THE PURCHASE PRICE PAID BY BUYER, AT SELLER'S SOLE OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL,
6. Changes, Reschedules and Cancellations: Buyer may request to modify the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order, however, no such requested modification or cancellation shall become part of the contract between Buyer and Seller unless accepted by Seller in a written amendment to this Agreement. Acceptance of any such requested modification or cancellation shall be at Seller's discretion, and shall be upon such terms and conditions as Seller may require.
7. Special Tooling: A tooling charge may be imposed for any special tooling, including without limitation, dies, fixtures, molds and patterns, acquired to manufacture items sold pursuant to this contract. Such special tooling shall be and remain Seller's property notwithstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in apparatus belonging to Seller which is utilized in the manufacture of the items sold hereunder, even if such apparatus has been specially converted or adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, Seller shall have the right to alter, discard or otherwise dispose of any special tooling or other property in its sole discretion at any time.
8. Buyer's Property: Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer or any other items which become Buyer's property, may be considered obsolete and may be destroyed by Seller after two (2) consecutive years have elapsed without Buyer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller's possession or control.
9. Taxes: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the items sold hereunder. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Buyer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed by any taxing authority, Buyer shall save Seller harmless from and against any such tax, together with any interest or penalties thereon
which may be assessed if the items are held to be taxable.
10. Indemnity For Infringement of Intellectual Property Rights: Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this Part 10. Seller will defend and indemnify Buyer against allegations of infringement of U.S. patents, U.S. trademarks, copyrights, trade dress and trade secrets (hereinafter 'Intellectual Property Rights'). Seller will defend at its expense and will pay the cost of any settlement or damages awarded in an action brought against Buyer based on an allegation that an item sold pursuant to this contract infringes the Intellectual Property Rights of a third party. Seller's obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of such allegations of infringement, and Seller having sole control over the defense of any allegations or actions including all negotiations for settlement or compromise. If an item sold hereunder is subject to a claim that it infringes the Intellectual Property Rights of a third party, Seller may, at its sole expense and option, procure for Buyer the right to continue using said item, replace or modify said item so as to make it non infringing, or offer to accept return of said item and return the purchase price less a reasonable allowance for depreciation. Notwithstanding the foregoing, Seller shall have no liability for claims of infringement based on information provided by Buyer, or directed to items delivered hereunder for which the designs are specified in whole or part by Buyer, or infringements resulting from the modification, combination or use in a system of any item sold hereunder. The foregoing provisions of this Part 10 shall constitute Seller's sole and
exclusive liability and Buyer's sole and exclusive remedy for infringement of Intellectual Property Rights.
If a claim is based on information provided by Buyer or if the design for an item delivered hereunder is specified in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses or judgments resulting from any claim that such item infringes any patent, trademark, copyright, trade dress, trade secret or any similar right.
11. Force Majeure: Seller does not assume the risk of and shall not be liable for delay or failure to perform any of Seller's obligations by reason of circumstances beyond the reasonable control of Seller (hereinafter 'events of Force Majeure]. Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, floods, delays or failures in delivery of carriers or suppliers, shortages of materials and any other cause beyond Seller's control.
12. Entire Agreement/Governing Law: The terms and conditions set forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in all respects by the law of the State of Ohio. No actions arising out of the sale of the items sold hereunder or this Agreement may be brought by either party more than two (2) years after the cause of action accrues.
Parker Hannifin Corporation Actuator Division 135 Quadral Drive Wadsworth, Ohio 44281 USA
Tel: (330) 336-3511
Fax: (330) 334-3335
Web Site:
http://www.parker.com/automation
|
November 16, 2010
Submitted Electronically
Donald Berwick, M.D. Administrator Centers for Medicare & Medicaid Services Hubert H. Humphrey Building 200 Independence Avenue, SW, Room 445-G Washington, DC 20201
RE: CMS-6028-P Medicare, Medicaid, and Children's Health Insurance Programs: Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers
Dear Dr. Berwick:
On behalf of our more than 5,000 member hospitals, health systems and other health care organizations, and our 40,000 individual members, the American Hospital Association (AHA) appreciates the opportunity to comment on the Centers for Medicare & Medicaid Services' (CMS) implementation of several of the program integrity provisions in the Patient Protection and Affordable Care Act (ACA).
In the ACA, Congress enacted a combination of new provisions and refinements to existing provisions, intended to enhance the ability of CMS to reduce fraud, waste and abuse in Medicare, Medicaid and Children's Health Insurance Program (CHIP). In this rulemaking, CMS is proposing rules to implement some of those provisions. The AHA's comments focus on the following key items:
* Provider Screening
* Application Fee
* Suspension of Payments
* Temporary Moratoria on Enrollment
The AHA is also responding to CMS' request for input – prior to issuing a proposed rule – on another new provision mandated by Congress: mandatory compliance programs for providers and suppliers.
Our comments on the specific provisions follow. As a general matter, we urge that as CMS rolls out implementation of the many program integrity provisions, it look at the cumulative effect for hospitals and others and not issue each in a vacuum. As CMS is very aware, there are multiple and overlapping program integrity activities that affect hospitals, each making specific demands on hospital personnel and resources. Hospitals are committed to supporting CMS and HHS in fraud-fighting efforts. Our concern is to protect against having mistakes treated as fraud and hospital resources diverted away from patient care unnecessarily.
PROVIDER SCREENING
Risk categorization and screening. CMS proposes to create three risk categories to evaluate and screen providers and suppliers: limited, moderate and high risk. The AHA supports CMS' placement of hospitals in the limited risk category and, as such, to retain screening requirements that are largely consistent with what is currently included in the Medicare enrollment process.
We believe that the providers and suppliers that CMS proposes to designate as "high risk" or "moderate risk," and that are members of, operate as a part of, or are owned by a hospital or a health system, should instead fall under the same risk categorization that CMS proposes for hospitals. That is, they should also be designated as "limited risk." Hospitals and health systems, in the interests of offering a broader and more comprehensive range of services to meet the needs of their communities, may own, or otherwise be affiliated with, a wide variety of Medicare recognized health care providers, such as those offering home health, hospice, rural health clinic, rehabilitation or ambulance services. This trend will increase as hospitals organize to meet the goals of ACA for delivery system reform to provide more coordinated care. These service providers become part of the larger mission of the hospital or health system with which they are affiliated and effectively become part of their parent hospital or health system. Unlike the free-standing providers that CMS proposes to designate as high or moderate risk, hospital owned/affiliated entities are part of larger established organizations that have high levels of accountability to their internal governance structures and have longstanding relationships with and responsibility to their local communities. These health care providers and suppliers also pose a limited level of risk to the Medicare program by virtue of the oversight provided through their parent or affiliated hospitals or health systems. Therefore, the AHA recommends that these types of entities should be designated as "limited risk" and accorded the same level of screening that CMS proposes for hospitals.
In the event that CMS does not accept the AHA's recommendation to accord hospital or health system owned or affiliated providers/suppliers with a "limited risk" designation, the AHA has two other comments and recommendations related to CMS' proposed screening criteria for "moderate" and "high" risk entities:
(1) CMS proposes fingerprinting and criminal background checks for owners, authorized or delegated officials or managing employees of any provider or supplier that is designated as "high-risk." While all these roles are defined in current regulation, we seek greater specificity regarding what level of managing employees would be subject to these requirements. In larger provider organizations, in addition to those high-level managers or directors who oversee the operation of the overall organization, such as the chief
executive officer, chief financial officer, and chief medical officer, there are many middle- and low-level managers who oversee only a department or a particular function within the larger organization, such as engineering, infection control, pharmacy services or housekeeping. These managers have limited areas of responsibility within the organization and report up to higher level managers. We recommend that CMS clarify that the additional proposed screening measures of fingerprinting and background checks apply to only the highest-level managing employees who operate or manage, or who oversee the operation of the entire healthcare organization, and not to lower-level managers of individual departments or functions.
(2) CMS proposes unscheduled, unannounced site visits for moderate- and high-risk providers/suppliers. The AHA supports site visits as a tool to improve program integrity. However, given the disruption and administrative burden that a CMS site visit could cause for a legitimate provider or supplier's business operations, we recommend that CMS limit the purpose of these site visits to verifying that the provider/supplier exists and is operational. Other matters that would require significant management and clinical staff time should be handled through separate scheduled site visits.
Geography. In several places in the proposed rule, CMS contemplates treating all providers and suppliers in a specific geographic location in a different way due to concerns about potential fraud, waste or abuse. For instance, in its discussion about the criteria appropriate to recategorize entities from low or moderate risk to high risk, CMS indicates it is considering the applicability of geographic circumstances as a possible criterion. Further, in its proposal for temporary moratoria on enrollment, CMS proposes that a moratorium may be imposed in any particular geographic area if the agency, in consultation with the Department of Health and Human Services Office of the Inspector General (OIG) and/or the Department of Justice (DOJ), identifies the area as having a significant potential for fraud, waste or abuse. We believe that geography is too blunt an instrument with which to make such decisions and that it is inappropriate to penalize all providers and suppliers in a particular geographic location. Instead, we recommend that CMS adopt a more targeted approach that takes other relevant factors into consideration, such as the history or trend in proven fraud and/or abusive practices for specific types or categories of providers or suppliers. To paint all providers and suppliers in a particular geographic area with the same broad brush is too extreme a measure to be considered reasonable and would arbitrarily and inevitably penalize many providers and suppliers that are compliant with Medicare and Medicaid rules and regulations.
De-activation of Enrollment under Medicaid. The Agency proposes at §455.418 to de-activate the enrollment number of providers not submitting claims to Medicaid for a consecutive 12month period. We note that this time frame is consistent with Medicare de-activation policy; however, under Medicare, there are special considerations around re-activation of billing privileges in those circumstances. We urge CMS to add the same special considerations for Medicaid at §455.420 "Reactivation of provider enrollment." That is, if the only reason for deactivation of the provider's Medicaid enrollment number was non-submission of claims or no referrals for a period of 12 consecutive calendar months, then re-activating the enrollment number should not require a re-screening of the provider or the re-submission of the enrollment
form. Instead, consistent with Medicare policy, providers whose Medicaid enrollment numbers were de-activated under these circumstances should merely be required to re-certify that the enrollment information currently on file with Medicaid is correct and furnish any missing information as appropriate.
Also, consistent with the recommendation the AHA makes for the Medicare rule (see discussion below regarding Application Fee), we urge that the proposed Medicaid rule be revised so that the newly created enrollment fee will not apply to re-activations that result from non-submission of claims or referrals for a 12-month period. This will address concerns from providers or practitioners who may not serve Medicaid enrollees in a 12-month period, e.g., pediatricians or pediatric subspecialists.
APPLICATION FEE
Congress has mandated a $500 enrollment application fee for institutional providers to support the administrative costs of program integrity. The AHA finds it inequitable that those institutional providers in the "limited risk" category are still subject to the same $500 application fee as "high risk" providers whose screening requirements CMS is proposing be greatly enhanced. While we recognize that this is a matter of statute, we believe that a more equitable policy would link the application fee amount to the assigned level of risk, with a zero or minimal fee applicable to "limited risk" facilities and higher scaled fees applied to the "moderate risk" and "high risk" categories.
However, as the fee is mandated by statute, the AHA recommends that CMS use the application fee collected from "limited risk" providers to develop prioritized and expedited processes and time frames for contractor review and approval of initial enrollment applications and revalidations for the providers in the "limited risk" category. As the AHA has noted on many previous occasions, there are growing delays and backlogs in Medicare contractor processing of paper-based and online enrollment applications as more physicians and other eligible professionals and organizations respond to calls from CMS and their national associations to establish an enrollment record. These delays will have an increasingly significant and adverse effect on the ability of hospitals to organize their services to better coordinate care, which is a goal of health reform. Using the enrollment fee collected from "limited risk" providers to develop and implement prioritizations and expedited processes for completing the enrollment and revalidation of "limited risk" providers will be welcomed.
Further, the AHA is concerned about the impact of CMS' decision not to allow Medicare contractors to begin processing an enrollment application until after the fee is received and credited to the U.S. Treasury. As noted above, currently there are significant concerns about the often extended period of time it takes for new enrollment applications to be processed and for new providers and suppliers to receive their billing number. Hospitals are concerned that this fee provision will only lengthen the enrollment application and revalidation processing times and contribute to the current backlogs and delays, another stumbling block for hospital efforts to achieve the goals of health reform. CMS should identify and use an electronic funds transfer mechanism for the enrollment fee in order to facilitate the timely processing of enrollment applications and revalidations.
At proposed §422.514 (a) and (b), CMS would require prospective institutional providers and revalidating institutional providers to submit an application fee. The AHA requests that CMS clarify that routine updating of changes in enrollment information, as required by CMS in §424.520(b) and §424.550(b), and as distinct from new applications or revalidations, will not be subject to the $500 fee. The current Medicare requirements for updating of enrollment information include reporting changes to ownership or control, practice location, a change in any managing employee, and a change in billing services, among others. These types of changes can occur frequently and it would be burdensome and costly to hospitals and health systems if CMS were to require that the fee apply each time such routine updating of information occurs.
Further, the AHA recommends that CMS state in the final rule and revise §424.540 Deactivation of Medicare billing privileges to clarify that the reactivation of Medicare billing privileges that had been deactivated as a result of non-submission of a claim for a consecutive 12-month period will not result in the imposition of an enrollment fee, since such an action is not considered to be a new enrollment application, the establishment of a new practice location, or a contractor requested revalidation of enrollment information. This clarification will address concerns from certain types of providers and suppliers who primarily serve pediatric populations and who therefore rarely submit claims under Medicare or whose involvement in Medicare is otherwise limited to infrequent referrals that result in Medicare claims.
TEMPORARY MORATORIA ON ENROLLMENT
CMS proposes that it may lift a temporary moratorium if there is a Presidentially-declared disaster under the Stafford Act. The AHA recommends that, in addition, CMS also be permitted to lift a moratorium if the Secretary of HHS declares a public health emergency in an area.
Further, as discussed in connection with screening, CMS should not use geography, by itself, as a determining factor in imposing a temporary enrollment moratorium on all providers and suppliers.
SUSPENSION OF PAYMENTS
The ACA lowered the standard for suspending payments to providers and suppliers in cases involving allegations of fraud. The AHA is concerned that the combination of the lower standard and the procedures related to initiating and continuing a suspension do not adequately protect against investigations and related suspensions continuing with no charges in sight.
In particular, for cases that are deemed to involve credible allegations of fraud, CMS proposes to eliminate the current 180-day limit for a suspension and the one-time extension, and replace it with a requirement for CMS to merely "evaluate" every 180 days whether there is good cause to discontinue the suspension. This effectively means that a provider's payments could be continuously suspended without any meaningful opportunity to challenge the allegation. While there is technically an opportunity to submit a written rebuttal at the time of the initial suspension, it is rarely available in advance of the suspension, provides only the most minimal of due process protections, and does not create a right to challenge the ongoing validity of a payment suspension.
The AHA recommends that a higher standard be applied for continuation of a suspension beyond one year. There should be a presumption against an extension unless OIG or DOJ certify quarterly that the initiation of a proceeding is anticipated. There should also be a reordering of the regulatory text defining "credible allegation of fraud." The last sentence, which defines credible, should become the first sentence ("Allegations are considered to be credible if…"). As drafted, the definition begins with a list of potential sources for a credible allegation that, implicitly and inappropriately, appears to favorably prejudge the merits of an allegation from these sources.
COMPLIANCE PROGRAM
Section 6401 of the ACA mandates that a provider or a supplier must, as a condition of enrollment in Medicare, Medicaid or CHIP, establish a compliance plan that includes the core elements established by the Secretary in consultation with the Inspector General. Instead of issuing a proposed rule, CMS has included in this Federal Register Notice a request for input on potential core elements of a compliance program and information related to current compliance activities. A proposed rule will follow separately.
Core Elements. CMS asks three questions in connection with the core elements of a compliance program:
(1) Whether the U.S Sentencing Commission Guidelines for an effective compliance program should be adopted as the core elements;
(2) Whether any additional requirements should be included; and
(3) Specifically, whether a requirement for external and/or internal quality monitoring should be added for hospitals and long-term care facilities.
The AHA supports the adoption of the sentencing guidelines as the core elements of a compliance plan under Section 6401. We believe no additional requirements are warranted or should be imposed on hospitals. We would oppose any mandate to include the oversight of the quality of care provided by a hospital as a function of program integrity.
Hospitals have been actively engaged in voluntary compliance activities for more than ten years. This includes providing input to HHS on the development of voluntary guidelines. Hospitals adopted compliance programs to demonstrate their good-faith efforts to comply with complex and continually changing legal and regulatory requirements they must meet as a condition of receiving payment for serving beneficiaries and program enrollees. Since their inception, these plans have been based on the seven elements of effective compliance programs in the U.S. Sentencing Commission Guidelines and the adaptation of those for hospitals in the OIG's voluntary compliance program guidance (the version of the Guidelines listed in the Federal Register Notice). The Guidelines have stood the test of time and continue to be the
foundation for hospital programs. Imposing any new requirements would only add unnecessary burdens and costs for hospitals with no additional benefit.
The AHA specifically opposes adding a requirement to the Guidelines for external and/or internal quality monitoring for hospitals. Putting patients first – ensuring their care is centered on the individual, rooted in best practices and utilizes the latest evidence-based medicine – is a priority for America's hospitals. It's what guides the actions and decisions of nurses, physicians and other caregivers every day. Quality oversight should remain with the clinical staff that has the required special knowledge and expertise. Hospitals have significant systems and processes in place to assess and enhance quality (e.g., peer review, credentialing, quality review protocols such as LEAN or Six Sigma, evidence-based medicine, and root cause analyses). Quality improvement and patient safety are already subject to extensive outside reviews, including by CMS (e.g., central and regional office survey and certification, QIOs, and state surveyors) as well as accrediting bodies, state licensing agencies, health departments and FDA. In addition, hospitals provide quality reporting to CMS, state agencies and accrediting bodies.
If the Guidelines are adopted as the core elements, CMS should modify or clarify the second element in the HHS adaptation of the Guidelines for hospitals -- reporting to the Board -- to conform with the Sentencing Guidelines. Instead of focusing on the function of the compliance officer, it appears to dictate to whom the compliance officer has a "direct report" relationship. The Guidelines are met if the compliance officer periodically provides information on compliance activities to high-level personnel and, as appropriate, to the Board. The Board should have the latitude to determine what structure will best enable it to meet its oversight responsibilities.
Effectiveness. CMS asks several questions related to the effectiveness of programs and states that it anticipates requiring providers to evaluate the effectiveness of their programs using electronic data. Taken together, the questions suggest that hospitals may be required to put an infrastructure in place specific to this requirement. As CMS is aware from its own efforts to measure effectiveness, there are many open questions about what effectiveness means, what to measure, and how to measure it. At this point it makes most sense to stay with the evaluation and monitoring already required under the Sentencing Guidelines that create accountability while allowing the particulars to be determined based on the circumstances of the individual hospital.
We note that CMS' request for information asks whether the organization has tracking systems, data capturing systems and electronic claims submission systems in place. As CMS knows, hospitals are already subject to multiple and overlapping efforts to oversee the accuracy of claims submitted through electronic systems (e.g., RAC, MIC, MAC, MFCU, PERM, CERT, and ZPIC). Before considering the addition of another layer to the oversight of claims submission, including payment accuracy, we urge CMS to carefully review what is already occurring and what, if any, gaps exist. As the AHA has separately presented to CMS, there is a serious need for coordination and evaluation of the already existing program integrity activities to avoid duplicating and unnecessarily increasing demands on providers' systems and resources.
Timeline. CMS also asks what amount of lead time will be needed for establishing a required compliance program. That will depend on the specifics of CMS requirements. Hospitals are diverse in size, location and complexity and, hence, the formality and sophistication of their programs will be dictated by those characteristics. In making its proposal, CMS should keep in mind that there is no one-size-fits-all program, and any requirements should be scalable to the size and resources of the individual hospital.
Thank you for the opportunity to submit comments. If you have any questions regarding these comments, please do not hesitate to contact Roslyne Schulman, director, policy development, at (202) 626-2273 or firstname.lastname@example.org, or Maureen Mudron, deputy general counsel, at (202) 626-2301 or email@example.com.
Sincerely,
// s //
Rick Pollack Executive Vice President cc: Peter Budetti Deputy Administrator for Program Integrity CMS
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NEWS RELEASE
Damara Intersects High-Grade Gold at Kodiak Zone with 3.0 meters of 39.2 g/t Gold and 80.4 g/t Silver
March 24, 2022
TSX-V: DMR
* KZ-21-05 intersects 3.0 meters of 39.2 g/t Gold and 80.4 g/t Silver in Southern BC, ~15 km from Copper Mountain Mine
* Kodiak Zone is open in all directions, with a 1.5 km high-grade soil anomaly still open to the east
* Strong potential for additional discoveries under post-mineral volcanics spanning a 2.5-km distance between the Kodiak and Main Zones
* Quartz-sulphide veining intersected in all drill holes at Kodiak Zone
* Only 1/3 of the 600-meter-wide Kodiak Zone has been tested
* The mineralization at Placer Mountain has strong geological similarities to Gold Mountain Mining's Elk Deposit 80 km to the north
* Multiple gold occurrences found in just a single field season at Placer Mountain; additional ground staked to the north along prospective geological structure with expanded drilling planned for 2022
DAMARA GOLD CORP. (TSX-V:DMR) ("Damara" or the "Company") is very pleased to announce it has confirmed a new high-grade gold zone at its Kodiak Zone prospect, located on the Company's Placer Mountain project in Southern BC ("Placer Mountain" or the "Property"). The Company rushed the processing and assays for hole KZ-21-05 which intersected 3.0 meters of 39.2 g/t Gold and 80.4 g/t Silver within a new orogenic-style vein system discovered through reconnaissance soil sampling and trenching in 2021 (Figures 1, 2). The true width of the vein is unknown at this time, due to the broken and weathered nature of the recovered core, but high angle fractures suggest that the reported interval may be near to true width. The new gold system is characterized by quartz-sulphide veins hosted within a clay-sericite altered intrusive unit, near the contact with Nicola Group volcanic and sedimentary rocks. Quartz-sulphide veining was intersected in all eight holes, revealing several parallel near surface veins for which assays are pending.
Table 1 - Highlight Intercept from Rushed Drill Hole KZ-21-05
| | Hole ID | | From (m) | | To (m) | | Interval (m)* | | Au (g/t) | Ag (g/t) |
|---|---|---|---|---|---|---|---|---|---|---|
| | KZ-21-05 | | 27.00 | | 30.00 | | 3.0 | | 39.2 | 80.4 |
| incl. | | 27.00 | | 28.00 | | 1.0 | | 27.4 | | |
| incl. | | 28.00 | | 29.00 | | 1.0 | | 87.5 | | |
*The intervals reported in these tables represent drill intercepts and insufficient data are available at this time to state the true thickness of the mineralized intervals. All gold values are uncut.
CEO Comment
Larry Nagy, CEO, commented "Our maiden drill program has now confirmed the presence of a second potentially large orogenic gold system at Placer Mountain. The Kodiak Zone appears even more robust than the Main Zone, delivering the highest-grade gold ever intersected in drilling on the project. The new system was discovered by systematic soil sampling and trenching along strike of the Main Zone, and our maiden drill program has now verified the high-grade nature of the veins trenched on surface. Our drilling has intersected significant quartz-sulphide veining in all holes, revealing a robust mineralized system, of which we have only just scratched the surface. We look forward to releasing assay results for the remaining drill holes, for which we expect assays very soon.
We are very pleased with the progress made on the project since the first ever hole drilled in December of 2020. In just a single year, our drilling has now expanded the Main Zone and unveiled a major new gold occurrence at the Kodiak Zone. We expect 2022 to be an even more momentous year for the Company as we continue building on Southern BC's newest orogenic gold discovery."
Deposit Model
The Company has noted strong similarities to the drilling at Gold Mountain Mining Corp's. Elk Deposit 1 , which recently began commercial production on an orogenic gold system just 76 km to the north of Placer Mountain. The Elk Gold Deposit, which is defined by approximately 50,000 meters of drilling in 973 drill holes, is centered along the contact of Nicola Group volcanic and sedimentary rocks with a Jurassic aged intrusion. Both the Main Zone and the newly discovered Kodiak Zone are both situated along a similar geological contact at Placer Mountain, which represents an important structural control and guide to the Company's future exploration.
1 This news release contains information about adjacent properties on which Damara has no right to explore or mine. Readers are cautioned that mineral deposits on adjacent properties are not indicative of mineral deposits on the Company's properties
Phone: (250) 717-3151 • Fax: (250) 717-1845 • www.damaragoldcorp.com
Figure 1 – Cross-Section of KZ-21-05 at Kodiak Zone
Phone: (250) 717-3151 • Fax: (250) 717-1845 • www.damaragoldcorp.com
Figure 2 – Plan View Showing Location of KZ-21-05 at Kodiak Zone
The Company has staked additional ground along this important geological structure, adding several km of untested strike length to the north of the Kodiak Zone. The Company also plans to carry out a large geochemical program to the south of the Main Zone as well, along the newly realized important structural control, which has never before seen exploration.
2022 Exploration Program
The Company is currently planning it's 2022 exploration program for Placer Mountain, which will be focused on extending the orogenic gold system at depth and along strike at both the Main Zone and the Kodiak Zone. The program will also involve further soil sampling along the important Nicola Group-Jurassic Intrusive contact; a newly recognized structural control on emplacement of vein systems. Up to 20 km of untested strike will be sampled to the north of the Kodiak Zone, south of the Main Zone and between the two zones, to explore for additional high-grade orogenic gold veins.
Qualified Person
Dr. Gerald G. Carlson, PhD, PEng, technical advisor to the Company, is the Qualified Person as defined by National Instrument 43-101 who has reviewed and approved the technical data in this report.
QA/QC Procedures
Drill core samples were prepared and analyzed at MSA Labs laboratory in Langley, B.C. by analytical code AuAg12, which assays gold by fire assay and silver by aqua regia digest. Prior to shipment, blind quality control samples were inserted at a frequency of in every 10 samples, including blank material, 3 different certified reference standards (high, medium and low grade gold and silver), ¼ core duplicates and empty bags for pulp duplicates. Sample preparation at the laboratory was completed by crushing the entire sample to 70% passing 2mm, riffle splitting off 1 kilogram and pulverizing the split to greater than 85% passing 75 microns. Using a 30 gram sub-sample, the gold values are determined by fire assay method, with atomic absorption finish, which reports results in parts per million (ppm) (equivalent to grams per tonne (g/t)). Silver results were determined by aqua regia digestion with ICP-ES finish. Analytical results for the quality control samples were independently verified to pass.
About Damara
Damara Gold Corp. is a TSX Venture listed Canadian public company with a Board of Directors seasoned in the mineral exploration industry with extensive and successful international experience with a focus on identifying and acquiring prospective and under-explored gold properties worldwide.
ON BEHALF OF THE BOARD OF DIRECTORS OF DAMARA
"Larry Nagy"
Larry Nagy, Chief Executive Officer
For additional information visit Damara's website at www.damaragoldcorp.com or contact:
Damara Gold Corp. Larry Nagy Chief Executive Officer
Ph: (250-717-1840)
Disclaimer for Forward-Looking Information
This news release contains statements that constitute "forward-looking Information", as such term is used in applicable Canadian securities laws. Such forward-looking information involves known and unknown risks, uncertainties and other factors that may cause the Company's actual results, performance or achievements, or developments in the industry to differ materially from the anticipated results, performance or achievements expressed or implied by such forward-looking information. Forward-looking information includes statements that are not historical facts and are generally, but not always, identified by the words "expects," "plans," "anticipates," "believes," "intends," "estimates," "projects," "potential" and similar expressions, or that events or conditions "will," "would," "may," "could" or "should" occur.
Phone: (250) 717-3151 • Fax: (250) 717-1845 • www.damaragoldcorp.com
Although the Company believes the forward-looking information contained in this news release is reasonable based on information available on the date hereof, by its nature forward-looking information involves assumptions and known and unknown risks, uncertainties and other factors which may cause our actual results, level of activity, performance or achievements, or other future events, to be materially different from any future results, performance or achievements expressed or implied by such forwardlooking information.
Examples of such assumptions, risks and uncertainties include, without limitation, assumptions, risks and uncertainties associated with general economic conditions; the Covid-19 pandemic; adverse industry events; the receipt of required regulatory approvals and the timing of such approvals; that the Company maintains good relationships with the communities in which it operates or proposes to operate, future legislative and regulatory developments in the mining sector; the Company's ability to access sufficient capital from internal and external sources, and/or inability to access sufficient capital on favorable terms; mining industry and markets in Canada and generally; the ability of the Company to implement its business strategies; competition; the risk that any of the assumptions prove not to be valid or reliable, which could result in delays, or cessation in planned work, risks associated with the interpretation of data, the geology, grade and continuity of mineral deposits, the possibility that results will not be consistent with the Company's expectations, as well as other assumptions risks and uncertainties applicable to mineral exploration and development activities and to the Company, including as set forth in the Company's public disclosure documents filed on the SEDAR website at www.sedar.com.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS PRESS RELEASE REPRESENTS THE EXPECTATIONS OF DAMARA AS OF THE DATE OF THIS PRESS RELEASE AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE DAMARA MAY ELECT TO, IT DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED IN ACCORDANCE WITH APPLICABLE LAWS.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this press release.
Phone: (250) 717-3151 • Fax: (250) 717-1845 • www.damaragoldcorp.com
|
OPEN ACCESS
International Journal of Molecular Sciences ISSN 1422-0067 www.mdpi.com/journal/ijms
Review
On the Free Energy That Drove Primordial Anabolism
Michael Kaufmann
The Protein Chemistry Group, Witten/Herdecke University, Stockumer Str. 10, 58448 Witten,
Germany; E-Mail: email@example.com; Tel. +49-2302-926-387; Fax: +49-2302-926-220
Received: 26 March 2009; in revised form: 16 April 2009 / Accepted: 20 April 2009 /
Published: 22 April 2009
Abstract: A key problem in understanding the origin of life is to explain the mechanism(s) that led to the spontaneous assembly of molecular building blocks that ultimately resulted in the appearance of macromolecular structures as they are known in modern biochemistry today. An indispensable thermodynamic prerequisite for such a primordial anabolism is the mechanistic coupling to processes that supplied the free energy required. Here I review different sources of free energy and discuss the potential of each form having been involved in the very first anabolic reactions that were fundamental to increase molecular complexity and thus were essential for life.
Keywords: Primordial Anabolism, Origin of Life, Free Energy.
1. Introduction
How and where did life on Earth arise [1]? This is one of the top 25 unanswered big questions facing science that were selected in the 125th anniversary issue of Science in 2005 [2]. Moreover, in the first essay of a series celebrating the 150th anniversary of Charles Darwin's famous publication "On the Origin of Species" [3], Zimmer termed it one of the biggest questions in all of biology [4]. The quest for a better understanding of the processes involved in the origin of life naturally depends on the ability to discriminate living from non-living things. Scientifically spoken, a generally accepted definition of life would be very desirable for categorizing observed phenomena in being alive or not. Unfortunately, at present not even this initial goal has entirely been attained [5], let alone all approaches aimed at explaining the enigmatic transition of inanimate matter to living structures. In my opinion, the most successful endeavor to define life is the NASA working definition originally put by Joyce which reads: "Life is a self-sustained chemical system capable of undergoing Darwinian evolution" [6,7]. Szostak goes even a step further by stating that the origin of life and the origin of Darwinian evolution are essentially the same thing [4]. How difficult it is to define life can be seen easily by the substantially large number of further efforts to do so. On the basis of the compiled definitions and discussions during the 2001 meeting of the International Society for the History, Philosophy, and Social Studies of Biology, the following definition of life was composed: "Life is a succession of energy-producing electro-chemical processes by a naturally occurring, simple or complex organism composed of a combination of molecules, each consisting of systematically arranged carbon, hydrogen, and oxygen atoms, and a few other elements, forming cells, which consume 'food' and produce 'waste', both consisting of solid, aqueous, and gaseous matter; the process is called metabolism; the organism is capable of living within the environment without dependency on any other organism; energy use is manifest by growth with size limits for most; self-healing; possibly movement; self-replication with each offspring slightly different; irritability; capable of modifying their living environment, both beneficially and detrimentally; with eventual termination of energy production, or death. Exceptions are egg, sperm, spore, seed, and virus, which do not consume food and produce waste; the first four are replication structures, and the fifth has premature life-terminating capabilities" [8]. For a definition this is an enormously long phrase and in order to avoid counterexamples, this definition introduces exceptions from the rules it describes. In fact, the existence of counter-examples is a problem common to almost all attempts to define life. For instance, properties such as movement, growth, replication or Darwinian evolution are often part of definitions of life. Yet a cloud is able to move, a cactus is not. An avalanche is growing, elder humans do not. A crystal or a fire may replicate, a worker ant or bee does not. Even the property to evolve is not specific to life since certain macromolecules are capable of undergoing Darwinian evolution as well [9]. Two vintage quotations related to the question "What is life?" impressively demonstrate the dilemma mentioned. In the beginning of chapter 14 of his book "What is Life" Haldane writes: "I am not going to answer this question. In fact, I doubt if it will ever be possible to give a full answer" [10]. Similarly, Eigen recognizes the difficulty by stating: "Not only is this a difficult question; perhaps it is not even the right question" [11]. Indeed, more recently Cleland and Chyba argue that the controversy on life's definition is inescapably as long as we lack a general theory of the nature of living systems [5]. Even worse, Schulze-Makuch and Irvin take into consideration that any rigid distinction between life and non-life is a matter of subjective judgment [12]. Koshland circumvents the problem by describing fundamental pillars on which life is based, essential principles by which a living system operates. In his essay "The Seven Pillars of Life" he summarizes them by the terms program, improvisation, compartmentalization, energy, regeneration, adaptability, and seclusion (abbreviated as PICERAS) [13]. To my mind, with respect to the origin of life energy is the most important pillar of his brilliant essay and consequently biological energy conversion plays a major role in life.
In 1944 Schrödinger published his famous book "What is Life", in which he points out that life is avoiding the rapid decay into the inert state of equilibrium and that it is continually drawing negative entropy from its environment [14]. Although the term negative entropy or negentropy [15] created some confusion and his description is far from being a definition of life, Schrödinger already recognizes a very important basic principle that, with only a few exceptions, is unique to all things that are alive. Life is capable to create order and complexity, the opposite of entropy, by feeding on a suitable kind of free energy. In terms of biochemistry, the continuous supply of free energy is essential for anabolism, which is defined as the processes in metabolism that result in the synthesis of cellular components from precursors of low molecular weight [16]. Reactions that build up complex molecules from smaller building blocks are fundamental to every living being. As a consequence, the utilization of free energy, vitally important for every anabolic reaction, is essential for the origin of life as well.
In this contribution I strictly differentiate between the terms "primordial chemistry" and "primordial anabolism" as two consecutive achievements in the course of prebiotic evolution. I refer to primordial chemistry as the reactions leading to the synthesis of molecular building blocks as it was demonstrated for the first time by the Miller-Urey-Experiment, where amino acids were synthesized from less complex gaseous molecules that were believed to constitute early Earth's atmosphere [17]. Unlike primordial chemistry as the chemical pathways resulting in small and simple molecular building blocks, I define primordial anabolism as the processes involved in the consecutive attachment of those building blocks resulting in a more complex and much larger macromolecular structure. As it will turn out, there is a fundamental difference between those two concepts. Primordial chemistry
(i) takes place spontaneously provided the presence of precursors and sufficient energy,
(ii) is not hampered by energies high enough to be destructive for biological macromolecules and
(iii) does not require any coupling to a suitable source of free energy.
The reaction products with comparably low molecular weight of primordial chemistry are certainly more robust than the macromolecules produced by primordial anabolism. The Miller-Urey-like synthesis of building blocks seems to occur without any guidance as if it was an intrinsic property of matter itself comparable with charge or mass. The physical properties of the known atoms and the laws of chemical bonding governing the building of molecules seem to imply that among others biochemical building blocks are favored compounds that form autonomously provided a sufficient amount of energy is available. On the contrary, all this does not hold true for primordial anabolism which is already somewhat advanced and more fragile. In general, anabolism depends on a coordinated coupling to a required form of free energy which in contemporary biochemistry is assured by high energy compounds such as ATP or other nucleosidetriphosphates and the substrate specificity of enzymes catalyzing anabolic polymerization reactions. The existence of primordial anabolism is also a prerequisite for information to come into play. Biological macromolecules are capable of storing information in the form of the sequential order of their building blocks, an important requirement for inheritance and thus Darwinian evolution as well [3]. Primordial anabolism was certainly an important step during the origin of life. Perhaps the emergence of primordial anabolism in the described sense and the origin of life were even identical events.
2. Energy
The etymological source of the word energy is the Greek word energeia (ἐνέργεια) which goes back to the philosophy of Aristotle [18] and means activity or being at work. Everybody intuitively has an idea about the nature of energy. Energy seems to be the entity needed to make things happen. It seems to be a kind of cause for the events that occur, an ingredient that brings about everything we can observe. Although discussed controversially [19], the classic textbook definition of energy in the field of physics is "the ability to do work" [20,21]. Energy has the same unit of measurement as work. Both physical quantities can be measured by the SI unit joule which, expressed in SI base units, corresponds to kg·m 2 ·s -2 . Richard Feynman stated: "There is a fact, or if you wish, a law governing all natural phenomena that are known to date. There is no known exception to this law – it is exact so far as we know. The law is called the conservation of energy" [22]. Energy obeys the fundamental physical law of conservation. In an isolated or closed system, energy can neither be created nor destroyed [23]. The first law of thermodynamics is an expression of this more universal physical law. Energy exists in several different forms. Although energy can be transformed or converted from one form into another one, in a closed system the total amount of energy always remains the same.
Thermodynamics describes the total internal energy of a system by the sum of "useless energy" and "useful energy". In this context, "thermodynamic free energy" or in short "free energy" is the amount of internal energy that can be extracted from a system to do work. There is always "useless energy", energy that cannot be extracted for work and which is lost in the form of heat. Two definitions of free energy, Gibbs free energy and Helmholtz free energy, are commonly in use. Whereas Gibbs free energy is defined under the assumption of constant pressure p and constant temperature T, Helmholtz free energy takes also into account the work done by p dV. Physically they are related by the following equations:
where G is the Gibbs free energy, U is the internal energy, T is the absolute temperature, S is the entropy, P is the absolute pressure, V is the volume, F is the Helmholtz free energy, and H is the enthalpy [24].
Free energy is the amount of energy that can be used to do work. Consequently, as an energy consuming process, anabolism depends on free energy as its driving force. Anabolism can be understood as a process of energy conversion where free energy is used to assemble preexisting molecular building blocks resulting in both the energy of newly formed high energy bonds and an increase in complexity and order, the latter being physically equivalent to the decrease of the system's entropy [25]. Lehninger describes this essential feature of living organisms in his biochemistry textbook as "systems for extracting, transforming, and using energy from the environment, enabling organisms to build and maintain their intricate structures and to do mechanical, chemical, osmotic, and electrical work. This counteracts the tendency of all matter to decay toward a more disordered state, to come to equilibrium with its surroundings" [26]. Although some authors feel it is erroneous to refer to Schrödinger's negentropy mentioned above as free energy, Schrödinger himself explains in a footnote of "What is Life" that by negative entropy he indeed means free energy [27]. The following paragraphs deal with different forms of energy, their respective roles in present day biochemistry as well as their potential to drive prebiotic chemistry eventually leading to the origin of life. Nuclear, atomic, gravitational, and relativistic energy are never discussed in the context of biological energy conversion and thus are also not included in this contribution as candidate energy sources for primordial anabolism.
3. Mechanical Energy
As the name suggests, mechanical energy is an energy form from the field of classical mechanics. Mechanical energy can be divided in potential energy and kinetic energy. Relative to a frame of reference, potential energy is defined as a function of the position and kinetic energy as a function of the movement of a classical object having mass. Some textbooks also group all further forms of energy into those two categories of energy with different notions of length scale.
Classical mechanics play an important role in biology. For instance, mechanical forces and mechanical work are involved in biochemical processes. It is known that cells can sense mechanical forces by switching the conformation of specialized proteins involved in signal transduction [28]. Energy provided by ATP/GTP hydrolysis or ion gradients across membranes can be converted to mechanical work as has been shown by the rotation of the bacterial flagellum [29] and the rotation of ATP-synthase [30] or by the movement of the multitude of further biochemical motor proteins [31] such as myosin in muscle contraction [32]. In contrast, neither kinetic nor potential energy as defined in classical mechanics is utilized by any known biological system as an energy source, let alone for anabolism.
A recent theory on prebiotic evolution developed by Hansma and designated the mica hypothesis [33,34] assumes that "Life may have originated between mica sheets, which would have provided many many confined spaces with surprising similarities to cells" [34]. The author also describes an energy source capable of rearranging molecules and the bonds between them forming biomolecules. According to her theory, mechanical energy from the movement of mica sheets as a response to ocean currents and temperature changes could provide the energy for the processes she assignes to the field of mechanochemistry. If true, the mechanochemical reactions proposed by Hansma certainly produce biochemical building blocks, possibly they also include condensation reactions as a part of primordial anabolism.
The environmental conditions on Earth today are comparably calm and bio-friendly. However, during the early days about 3.9 billion years ago and about 700 million years after the planets of our solar system had formed things were very different. At that time a cataclysmic spike in the cratering rate occurred as can be deduced from observations of the moon today [35,36]. This event is referred to as late heavy bombardment or lunar cataclysm and was characterized by a peak in the lunar impact rate by comets and asteroids that was about 100 times heavier than anything immediately before or after [37]. It is obvious that during the late heavy bombardment the early Earth was also subjected to massive impacts. Huge amounts of kinetic energy were stored in the projectiles when they were on their way towards their target Earth. At a constant velocity, the kinetic energy E of an asteroid is defined as:
E=½ mv
2
where m is the mass, and v is the velocity.
Due to the considerably high velocities and notable masses involved, those impacts are accompanied by the absorption of tremendous quantities of kinetic energy. Even today, although fortunately with a much lower probability, cosmic impacts can in principle transfer energies sufficient enough to result in a global catastrophe and therefore still represent a permanent and serious danger for humankind [38,39]. The most popular example of such an event is the asteroid impact 65 million years ago which is believed to be the cause of the mass extinction at the Cretaceous/Tertiary boundary that ultimately led to the dying out of the dinosaurs [40]. More recently, the collision of comet ShoemakerLevy 9 on Jupiter in 1994 impressively demonstrated the persistent danger from cometary impacts even today [41]. Beyond all question, impacts are hostile events and, provided that life has already come into existence before that as some authors suppose [42-44], the late heavy bombardment is assumed being a sterilizing period wiping out all such life forms, at least on the surface of the early Earth [45,46].
Rather than powering any kind of primordial anabolism, the kinetic energy delivered by impacts on early Earth, especially during the late heavy bombardment, surely destroyed any complex macromolecule that had possibly been already generated during the origin of life. Besides those deleterious effects on macromolecules, the impact energies could also have been favorable for primordial chemistry to take place. There is evidence that this kind of energy triggered the origin of the building blocks themselves in a manner similar to the one demonstrated by the Miller-UreyExperiment [17]. Already in 1963, Gilvarry and Hochstim proposed that besides the classical energy sources of Miller-Urey-Experiments UV-irradiation from the Sun and lightning discharges in the atmosphere, in addition, the kinetic energy of meteorites when transformed to other energy forms during an impact could significantly contribute to the synthesis of organics [47]. Chyba and Sagan later reviewed the sources of organic molecules as the starting material for the origin of life [48]. They concluded that organics were delivered by extraterrestrial objects, synthesized by energy sources such as UV-light or electrical discharges, but also at comparable amounts synthesized via the energy derived from impact shocks. During this process, the impactor's kinetic energy is converted into atmospheric shock heating resulting in the Miller-Urey-like synthesis of organic molecules such as amino acids. This mechanism has by now also been proved by laboratory experiments [49,50]. Even for hypervelocity impacts into ice as they took place on Jupiter's moon Europa, energy conversions resulting in organic synthesis have been shown experimentally [51,52].
Impacts were possibly additionally involved in the origin of life by creating cracks and subsequently hydrothermal systems that might have been excellent incubators for prebiotic chemistry [53 54]. When absorbed by the impact crater the kinetic energy leads to a thermal anomaly generating a hydrothermal system. Such an environment could have provided conditions for the de novo synthesis of a diversity of organic compounds.
4. Electromagnetic Radiation
Electromagnetic radiation consists of a propagating wave of electric and magnetic fields. It can be described by the electromagnetic wave equation derived from Maxwell's equations [55]. Depending on the wavelength in ascending order, it can be classified into radio waves, microwaves, infrared radiation, visible light, ultraviolet radiation, X-rays, and gamma rays. In a vacuum, electromagnetic radiation, regardless of what kind, propagates at the same constant velocity c, the speed of light [55]. According to the wave-particle duality electromagnetic radiation carries quantized energy in the form of photons [56]. The energy E carried by a photon is proportional to the radiation's frequency and is given by
E=hν
where h is Planck's constant and ν the frequency of the radiation [57].
Light from the Sun in the visible spectrum is the main natural source of electromagnetic radiation on Earth and absorbing photons from the Sun's radiation is the major primary resource of free energy for biological processes on Earth today. Since Earth's atmosphere is not transparent for gamma rays and ultraviolet rays [58], visible light is the window of the electromagnetic radiation spectrum with the highest frequency and thus the highest energy of individual photons that can reach the Earth's surface. Even on primitive Earth visible light at wavelengths between 400 and 800 nm provided 70 mW·cm -2 which was by far more energy than electromagnetic radiation of all other wavelengths could deliver [59], and light energy was presumably also the most abundant source of energy on the prebiotic Earth [60]. An organism's ability to transform the energy of photons from the Sun into biochemical energy in form of ATP is called phototrophy. If concomitantly CO2 is reduced to form biomass this kind of phototrophy is termed photosynthesis [61]. The importance of photosynthesis to biology in general is impressively demonstrated by the notion "big bang of evolution" when its origin is mentioned [62]. The most abundant electron donor for photosynthesis is water and during this so called oxygenic photosynthesis the majority of atmospheric oxygen is produced [63]. In general, phototrophic organisms absorb photons of visible light from the Sun at many different wavelengths [64].
Even in the absence of sunlight photosynthesis seems to be possible by absorbing geothermal light [65]. Geothermal light peaks in the infrared and is the black body radiation emitted from the heated rocks of hydrothermal vents and from their surrounding hot water [66]. Radiation consisting of frequencies higher than visible light is also discussed to play a role as an energy source. In a process called radiogenic metabolism, ionizing radiation such as 60 Co gamma rays are hypothesized to promote metabolic reactions [67,68]. In a recent report, melanin pigments were described to change their electronic properties and melanized fungal cells manifested increased growth after exposure to 188 Re induced ionizing radiation. The authors assume that melanotic organisms may harness radioactive radiation for metabolic energy [69].
There is no common consensus on whether phototrophic processes were at work during the origin of life. Some authors assume that photosynthesis could have played a role in providing free energy for the fixation of nitrogen and CO2 already at the very beginning [59,70,71] and others state that the use of light energy to drive biological reactions is almost as old as life itself [72]. Phylogenetic studies date the origin of phototrophy between 3.2 and 3.6 billion years ago with the last common ancestor and thus the origin of life more than 4.1 billion years ago [73]. Oxygenic photosynthesis is reported to be about 2.5 billion years old [74-76] which is consistent with the early rise in atmospheric oxygen concentration about 2.3 billion years ago [77,78]. Although discussed controversially [79,80], also much older times for its origin are reported. Des Marais concludes that oxygenic photosynthesis arose earlier than 2.8 billion years ago [81] and Schopf deduces from microfossil evidence that it was even 3.5 billion years ago [82,83]. Whatsoever, evolution took in the range of billions of years for its invention. This dramatically demonstrates the difficulty and the complexity of this sophisticated mechanism. Although photosynthesis is the most important process of energy conversion in contemporary biochemistry, the molecules involved even in the most primitive phototrophy today are much too complex for having been involved in energy transduction during the early steps of life's origin. Bacteriorhodopsin, with only 247 amino acid residues, is by far the most simple modern macromolecule capable of performing energy transformations fueled by photons [26,84]. However, even the probability of the spontaneous assembly of a protein consisting of only 247 amino acids during the beginning of life is almost zero let alone the fact that in addition pigments and a cell membrane are required for its proper function. If primitive phototrophic processes were at work to power the origin of life, those processes can only have been based on very simple isolated pigments and they were certainly anoxygenic. Due to its complexity, phototrophy, at least in all embodiments presently known, was not suitable to provide a source of free energy for primordial anabolism.
5. Chemical Energy
In the course of certain chemical reactions, huge amounts of free energy can be released. This change of free energy Δ G is expressed by the Gibbs-Helmholtz equation:
where G is the Gibbs free energy, H is the enthalpy, T is the absolute temperature, and S is the entropy. This equation characterizes the two driving forces of chemical reactions, namely the tendency to achieve a more stable bonding state as expressed by Δ H and the tendency to achieve a higher degree of randomness as expressed by Δ S. Under standard conditions, the change in free energy is directly related to the equilibrium constant by:
where Δ G° is the change in standard Gibbs free energy, R is the gas constant, T is the absolute temperature, and Keq = [products]/[substrates] is the equilibrium constant.
Δ G° is a characteristic constant associated to a given chemical reaction. A notable negative Δ G° implies that the products contain much less free energy than the substrates and that under standard conditions the reaction proceeds forward. Such reactions are termed exergonic. The free energy released by an exergonic reaction may be used to perform work or enable an unfavorable reaction (Δ G° positive) to proceed. In contemporary metabolism catabolic pathways deliver chemical energy in the form of the high energy compounds, mainly ATP, NADPH and NADH, which are used in anabolic pathways to convert small precursors into macromolecules [26]. A prerequisite for such processes is the coupling of two reactions, one delivering the free energy and a second one directly or indirectly involved in anabolism. For instance, the hydrolysis of ATP is accompanied by the release of free energy that is only useful for anabolism if the reaction is coupled to an anabolic one like the synthesis of aminoacyl-tRNAs in order to form proteins from amino acids or the synthesis of desoxynucleosidetriphosphates for the polymerization of DNA. In general, the use of chemical energy for anabolism is characterized by the coupling to reactions converting high energy compounds into molecules containing less free energy i.e. reactions characterized by a notably negative Δ G°.
Today the main high energy compounds that fuel catabolism obtain their energy directly or indirectly from photosynthesis [62]. In aerobic respiration these compounds release their free energy via oxidation by heterotrophic organisms and molecular oxygen as the electron acceptor is reduced to water [85]. Alternatively, the photosynthetic energy stored in the nutrients can be utilized anaerobically by fermentation, a process where instead of oxygen an endogenous organic compound is used as the electron acceptor [86]. However, some microorganisms, especially extremophiles, are capable of using chemical energy independently from both photosynthesis and aerobic respiration. Such processes, where ATP is generated via the respiratory chain in the absence of oxygen, are termed anaerobic respiration [87]. Some examples are special kinds of sulfur respiration and denitrification where molecular hydrogen and reduced sulfur compounds serve as electron donors while CO2, oxidized sulfur compounds, and NO3 serve as electron acceptors [88].
Two main theories have emerged for the origin and early evolution of life based on heterotrophic versus chemoautotrophic metabolisms [89]. According to the heterotrophic theory molecular building blocks such as amino acids were continuously produced by primordial chemistry resulting in an organic soup from which primordial anabolism and life arose [90]. As the source of free energy, simple fermentations i.e. oxidations of preexisting reduced organic compounds are suggested [91]. However, to assemble these building blocks condensation reactions are needed. In liquid water these reactions are counteracted by the water's mass effect which tends to prevent the accumulation of polycondensation products or polycondensation agents due to hydrolysis [92]. In contrast to the heterotrophic theory, the autotrophic theory proposes processes involving only low molecular primitive compounds without the need of preexisting building blocks [93,94]. For the autotrophic origin of life an elegant model including a suitable energy source was developed. According to Wächtershäuser's iron-sulfur world hypothesis the formation of pyrite from ferrous ions and H2S is assumed to power all reducing anabolic reactions [95]. In an autocatalytic manner, carbon-fixation takes place by redox pathways. Catalyzed by transition metals, the reactions are driven by the free energy of inorganic starting materials, more precisely by the chemical potential of non-equilibrium volcanic exhalations [96]. Iron-sulfur clusters are probably a relic of the iron-sulfur world [97]. They are found in all life forms and are common to the most ancient components of living matter [98]. Some aspects of the iron-sulfur world hypothesis have already been confirmed experimentally [99-102].
As a matter of fact, if chemical energy is considered to be the only source of free energy in the origin of life, a continuous delivery of high energy compounds is required to maintain primordial anabolism as a premise for life. Life is anything but equilibrium [14,103]. Many molecules are discussed to be candidate high energy compounds driving primordial anabolism and most of them still play a role in contemporary metabolism. Phosphate esters and anhydrides dominate the living world [104], and ATP is the most important energy currency in biochemistry today [105]. Studies dealing with pyrophosphate-dependent phosphofructokinases that contain a latent ATP-binding site as a form of a molecular relic indicate that ATP itself or a closely related nucleotide could also have been the original high energy compound in the primeval Earth [106]. Pyrophosphate is part of the ATP molecule and all other nucleotides. It contains the high energy phosphoanhydride bond characteristic for all nucleosidetriphosphates. Pyrophosphate is produced in all reactions where ATP is degraded to AMP and its concomitant hydrolysis catalyzed by pyrophosphatases yielding two inorganic phosphates considerably contributes to drive those reactions [107]. Even the ability of pyrophosphate to replace ATP as the energy currency today is described in plants [108,109]. Pyrophosphate can also be detected in minerals termed canaphites [110]. Consequently, pyrophosphate was hypothesized to be a candidate primordial high energy compound in a scenario described as the PPi world [111-113]. Further candidate high energy compounds are thioesters such as Acetyl-CoA which is a central molecule of present metabolism [114]. Almost all metabolites can be degraded to Acetyl-CoA, and Acetyl-CoA itself is the building block of many biochemical structures such as fatty acids, cholesterol, and certain amino acids. The energy content of the thioester bond is sufficient to drive anabolic reactions and thus may have been involved in primordial anabolism as well. This theory was developed by De Duve and is commonly known as the thioester world hypothesis [115]. Further high-energy compounds suitable as a donor of free energy for primordial anabolism are glycine or other aminoacids [116], glyceraldehyde [117] or acetyl phosphate [118]. Formaldehyde and hydrogen cyanide are relatively stable, and at the same time their reactivity is high [119]. Although not being particularly high energy compounds they are considered to be key reactants in simulations of prebiotic chemical pathways [60]. Formaldehyde is described to be a precursor of sugars [120], and both amino acids and nucleic acid bases can be built from concentrated solutions of hydrogen cyanide [121-124].
6. Electrical Energy
Electrical energy is a form of potential energy generated by charge separation. If an electric current flows through a conductor, the electric energy E released can be quantified by:
where U is the voltage, I is the current, and t is the time.
With regard to electric energy in living systems the electric eel Electrophorus electricus, capable of generating voltages up to 500 V and currents of 1 A, is probably the most prominent example [125]. In biology considerable differences in ion concentrations are generated at many lipid membrane systems. This is a way to store energy by both an electrical potential consisting of the difference in charge and a chemical potential consisting of the difference in ion concentration. At the inner mitochondrial membrane as well as the thylakoid membrane of chloroplasts protons are pumped across the membrane and thereby establishing a pH gradient. This proton motive force stores the energy generated by respiration or photosynthesis [126]. The proton motive force in turn drives ATP synthesis catalyzed by ATP-synthase via a proton current directed backwards [30,127]. Beside the proton motive force there are further crucial ion gradients localized at membrane structures. Calcium gradients at the cell membrane and the sarcoplasmic reticulum are essential for triggering muscle contraction by suddenly releasing calcium into the cytoplasm along a decline in concentration when depolarization of a muscle cell occurs [128]. In addition, calcium influx driven by a calcium gradient plays an important role in cell signaling and thus calcium is described to act as second messenger in many cell types [129]. In general, the intracellular potassium concentration is much higher than the one outside the cell whereas the opposite is true for the sodium concentration. This concentration gradient is maintained by the ATP driven Na/K-ATPase [130] and is central for many cellular processes such as action potentials in neurons [131] or secondary active transport e. g. of glucose in the intestine and kidneys [132].
Energy storage in the form of a proton gradient as present in modern mitochondria is also hypothesized in a prebiotic context, and experiments show that some of the energy released by the exergonic conversion of micelles to vesicles can be stored into a transmembrane pH gradient [133]. Electric energy in the form of lightning and coronal discharges is believed to have provided energy for prebiotic organic synthesis on the early Earth [134,135]. This kind of energy is one of the energy forms used in the classical Miller-Urey experiment [17] which was reproduced several times, even by Miller himself [136]. Recent reanalyses of vials of his experiments using state of the art technology demonstrate that Miller synthesized 22 amino acids under conditions combining steam with electrical energy which supports spark discharge synthesis of organics by lightning in a steam-rich volcanic eruption [137]. Without any doubt electric energy in the form of lightning was important in prebiotic chemistry. On the other hand, it destroys large macromolecular polymers rather than synthesizing them as is shown by the severe injuries that can be caused by lightning [138,139]. Thus, this kind of electric energy can not have acted as a driving force for primordial anabolism.
7. Thermal Energy
The thermal energy of a system is proportional to its temperature. It is the sum of the system's sensible heat and latent heat. Thermal energy can be converted to external work. This is the working principle of a heat engine where heat is transferred from a hot source to a cold sink and thereby some of it is converted into work or free energy. Consequently, a prerequisite to gain free energy from thermal energy is the presence of a suitable temperature gradient.
According to most textbooks, thermal energy is not utilized by contemporary biochemistry as the following passage illustrates: "Differences in temperature often exist between the internal and external environments of cells; however, cells generally cannot harness these heat differentials to do work. Even in warm-blooded animals that have evolved a mechanism for thermoregulation, the kinetic energy of molecules is used chiefly to maintain constant organismic temperatures" [140]. On the other hand, there are reports where even in biology thermal energy is considered as the source of free energy. The possibility of "Carnot creatures" capable of thriving on thermal gradients was even described in Nature's column Daedalus [141]. The Carnot cycle is the most efficient thermodynamic cycle to convert thermal energy to perform external work [142]. Specialized organisms must have evolved to use the rich source of energy provided by black smokers, the argument goes. Matsuno states that actomyosin functions as a heat engine that is able to maintain a constant velocity due to quantum mechanical coherence and entanglement [143]. Interestingly enough, during the 18 th century, before the true biochemistry of muscle contraction was settled, it was indeed assumed that the mechanism of muscle contraction was based on the working principle of a heat engine [144]. In a more recent paper, Matsuno stated that molecular organizations leading to the origin of the phenomenon of life might have been associated with the emergence of a quantum coherence embodied in a robust heat engine feeding on quantum decoherence [145].
If at all, thermal energy at most plays a minor role in energy conversion of current biology. Nevertheless, during the origin of life it could have been much more important or even essential. Muller proposes pF1, a progenitor of modern ATP-synthase, which is driven by thermal cycling by a process he designates as thermosynthesis [146-148]. Muller postulates a thermally-induced binding change mechanism for pF1 ATP-synthase. During a thermal cycle the enzyme loosely binds ADP and phosphate at a low temperature, folds, converts these substrates to tightly bound ATP, and releases this tightly bound ATP at a high temperature by unfolding. In principle, a molecule like pF1 can condense any two substrates e.g. two amino acids and thus by definition converts free energy for primordial anabolism. pF1 not necessarily has to be a large molecule. For its proper function, it is sufficient to bind its substrates and adopt open and closed conformations. The smallest enzyme occurring naturally, 4-oxalocrotonate tautomerase, consists of about 60 amino acids [149], and the hammerhead ribozyme as the smallest natural RNA catalyst consists of only 30 nucleotides [150]. Much smaller peptide or RNA catalysts have been constructed in vitro shrinking the size of the smallest peptide catalyst to 29 amino acids [151] and the size of the smallest ribozyme to only five nucleotides [152]. Even the single amino acid proline is described acting as an enzyme [153]. Hence, it is conceivable that the assembly of the proposed pF1 catalyst can have happened solely by chance events. Possible candidate pF1 molecules are the proteinoids experimentally discovered by Fox [154]. Interestingly, the synthesis of those proteinoids themselves from amino acids is achieved by heating and drying and thus is also driven by thermal energy. Muller did not only propose pF1 but also progenitors of the photosynthetic machinery. According to him these progenitors worked as heat engines by thermotropic phase transitions in an asymmetric biomembrane during thermal cycling [155]. With respect to thermosynthesis unfortunately no experimental approaches are currently described in literature.
8. Conclusions
The nature of the free energy sources that have driven the earliest anabolic reactions remain a matter of speculation. Whereas a coupling mechanism is not necessary for the generation of molecular building blocks in primordial chemistry as demonstrated in Miller-Urey experiments, there is the need to couple primordial anabolic and thus endergonic polymerization reactions to either exergonic reactions utilizing a high energy compound or somehow directly to a suitable source of free energy. In addition, all mechanisms involved in primordial anabolism must be extremely simple so that their origin can be solely explained by chance events having taken place with acceptable probabilities. Because of its high degree of complexity, energy conversion as realized in contemporary biochemistry can certainly be excluded from having been at work during the earliest days of life. Currently, the most simple and most efficient mechanism to drive primordial anabolism is the reaction pathway described by Wächtershäuser's iron-sulfur world hypothesis. Although the efficiency of thermosynthesis as proposed by Muller is rather low, its relative simplicity makes it an attractive alternative candidate. Whereas a huge amount of experimental data with respect to primordial chemistry is available, the experimental work to shed light on primordial anabolism is still in its infancy and thus a challenge for future origin of life research.
Acknowledgements
My wife Daniela is greatly acknowledged for carefully proofreading the manuscript.
References and Notes
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INTERNATIONAL ELECTION OBSERVATION MISSION Republic of Belarus – Presidential Election, 11 October 2015
STATEMENT OF PRELIMINARY FINDINGS AND CONCLUSIONS
Minsk, 12 October 2015 – This Statement of Preliminary Findings and Conclusions is the result of a common endeavour involving the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), the OSCE Parliamentary Assembly (OSCE PA) and the Parliamentary Assembly of the Council of Europe (PACE).
Kent Härstedt (Sweden) was appointed by the OSCE Chairperson-in-Office as Special Co-ordinator and leader of the OSCE short-term observers. Jim Walsh (Ireland) headed the OSCE PA delegation. Reha Denemeç (Turkey) headed the PACE delegation. Ambassador Jacques Faure is the Head of the OSCE/ODIHR Election Observation Mission (EOM), deployed from 24 August.
The assessment was made to determine whether the election complied with OSCE commitments, other international obligations and standards for democratic elections, and with national legislation. Each of the institutions involved in this IEOM has endorsed the 2005 Declaration of Principles for International Election Observation. This Statement of Preliminary Findings and Conclusions is delivered prior to the completion of the election process. The final assessment of the election will depend, in part, on the conduct of the remaining stages of the election process, including the tabulation and announcement of results, and the handling of possible post-election day complaints or appeals. The OSCE/ODIHR will issue a comprehensive final report, including recommendations for potential improvements, some eight weeks after the completion of the election process. The OSCE PA will present its report at Standing Committee in February 2016. The PACE will present its report at its Standing Committee in November 2015.
PRELIMINARY CONCLUSIONS
The 11 October election once again indicated that Belarus still has a considerable way to go in meeting its OSCE commitments for democratic elections. This underscores the need for the political will to engage in a comprehensive reform process. Some specific improvements and a welcoming attitude were noted. Significant problems, particularly during the counting and tabulation, undermined the integrity of the election. The campaign and election day were peaceful.
Despite welcome engagement by the authorities since the last presidential election, the legal framework remains essentially unchanged. It has been previously assessed as not adequately guaranteeing the conduct of elections in line with the 1990 OSCE Copenhagen Document and other international obligations and standards. Amendments to the Electoral Code in 2013 and 2014 did not address several OSCE/ODIHR and Council of Europe Venice Commission recommendations, such as key ones related to balanced election commissions composition and early voting procedures. Such legal shortcomings limit the free expression of the will of voters.
In a positive step, after several releases in 2014, the remaining internationally acknowledged political prisoners were released by the president in August 2015. The IEOM institutions expect that with these releases additional such prosecutions will not happen and that this marks a closed chapter.
Following an open and unrestricted invitation to the IEOM institutions by the authorities, the Central Election Commission (CEC) exhibited a welcoming attitude towards international observers. It made technical preparations and passed decisions within legal deadlines. All decisions were passed unanimously and together with the regulations and the guidelines, were published on its website. However, the absence of clear and transparent legal criteria for the selection of members of territorial election commissions (TECs) and precinct election commissions (PECs) allowed local authorities full discretion in the appointment process, which was not inclusive. In general, some electoral stakeholders expressed a lack of confidence in the independence and impartiality of the election administration.
PECs are responsible for voter registration based on data provided by local authorities and there is no permanent or centralized voter list, which does not provide legal safeguards against multiple registrations. Prior to election day, the CEC announced that a total of 6,995,181 voters were registered to vote. The voter registration system is overly permissive, allowing registration in polling stations on election day without sufficient legal safeguards.
The CEC registered 8 of 15 groups that applied for signature collection and subsequently registered 4 candidates. All initiative groups were able to collect signatures across the country. Signature verification was insufficiently transparent, undermining confidence in the process. The right to stand is limited by previous criminal convictions; activities such as participation in unauthorized events can lead to reinstatement of sentences.
All candidates were able to campaign throughout the country and could convey messages in an unhindered manner. The campaign was low-key but it became more active in the last two weeks. Existing provisions and laws from 2011 and 2012 limit fundamental freedoms of association, assembly and expression. Only one candidate, whose platform focused predominantly on socio-economic issues, was openly critical of the incumbent. This gave voters limited choice.
In a welcome move, one minister stepped down to become the incumbent's campaign leader. Nevertheless, high-ranking public servants and officials campaigned during working hours on behalf of the incumbent. Several of his campaign events took place in state-run enterprises, and some statesubsidized public associations and institutions campaigned for him. These and other aspects created an uneven playing field for campaigning and blurred the line between partisan interest and the state, contravening paragraphs 5.4, 7.6 and 7.7 of the 1990 OSCE Copenhagen Document.
Candidates had the right to use their own resources and donations for campaigning. The 2013 amendments increased the caps on donations and spending limits, but abolished public funding. In a move widely welcomed by the contestants, the period for collection and use of funds was prolonged. Charities, religious and state-subsidized organizations are rightly not allowed to contribute to campaign funds, however, several state-subsidized public associations provided financial and in-kind contributions during the signature collection and in the campaign of the incumbent. The CEC published information on the total income and expenditures of candidates. The entire financial reports of candidates were not publicly available. This combined with the absence of audit requirements did not provide sufficient transparency of campaign finance.
Candidates were provided with a platform to convey their messages despite the restrictive media environment. The OSCE/ODIHR EOM media monitoring findings showed that the incumbent was by far the most visible due to extensive coverage of him in his institutional capacity. In addition, some state-owned media shaped their coverage to convey political messages favorable to him. Free access to state-owned media was given on an equal basis in an uncensored format, which contestants welcomed, and media provided the public with voter information. A live debate took place on 3 October among three campaigns, except for the incumbent.
Several decisions of election commissions, including on the final results may not be legally challenged and there are undue limitations on who can lodge a complaint, depending on the issue. Most complaints related to inequitable conditions for signature collection and campaigning for the incumbent, denial of registration of initiative groups, appointment of TEC and PEC members. Over 750 applications and complaints were filed to election commissions and local administration. The CEC considered only 3 of 239 complaints in open sessions, but did not publish information on them. On a positive note, the CEC maintained a register of complaints and appeals. Overall, the resolution of electoral complaints was insufficiently transparent.
For the first time, a woman participated as candidate in a presidential election. Women are well represented on election commissions, with some 59 and 72 per cent of the TEC and PEC members, respectively. Women held all secretary positions at TECs, but constituted only one-third of TEC chairpersons. Of the twelve CEC members, four are women, including the CEC chairperson.
Three independent citizen observer groups carried out long-term observation and regularly published their findings during the pre-election period. A total of 43,572 citizen and 928 international observers were accredited, including PACE for the first time since 2001. Some two-thirds of all accredited citizen observers represented public associations subsidized by the state. The rights of citizen and international observers are prescribed by law in an exhaustive manner and were interpreted and implemented restrictively. Observers are not entitled to follow all stages of the election process (e.g., signature verification, tabulation of results) and election commissions have wide discretion to deny them access, which is at odds with international good practice.
By law, all voters could vote early five days prior to election day, without having to provide justification. Overall, the early voting process was assessed positively. In 50 per cent of cases observers were denied access to check voter lists and in some cases, observers were prevented in seeing procedures. Complaints were filed in a number of PECs alleging discrepancies between reported turnout and the number of signatures in the voter lists, and inconsistent completion of daily protocols.
On election day, the voting process was assessed positively in 95 per cent of observations. However, a large number of IEOM observers were not allowed access to check the voter lists and seemingly identical signatures were observed in 47 polling stations. Indications of ballot box stuffing during the counting process were reported in 38 instances from 22 polling stations. The count was assessed negatively by observers, with some 30 per cent of polling stations assessed as bad or very bad of the 169 processes observed, indicating significant problems. IEOM observers monitored the tabulation process in 125 of the 146 TECs. The tabulation process was assessed negatively in some 25 per cent of the TECs observed, which is significant, and it lacked transparency.
PRELIMINARY FINDINGS
Background
On 30 June, the House of Representatives of the National Assembly called the presidential election for 11 October. It was the fifth presidential election since the independence of Belarus in 1991. The 1994 Constitution was amended twice by a popular referendum: in 1996, increasing the power of the presidency, and in 2004, abolishing the two-term presidency limit. 1 These amendments allowed incumbent President Alexander Lukashenka to stand for a fifth term in office.
1
The Council of Europe's Commission for Democracy through Law (Venice Commission) in its Opinion on the Referendum of 17 October 2004 in Belarus stated at the time that "the question concerning the possibility for Mr. Lukashenka to again be candidate in the forthcoming election is in direct and clear contravention of this law (the Constitution). It can therefore not be decided by referendum."
Belarus is a presidential republic where the executive enjoys extensive powers. The political system is characterized by weak party structures. No new political party has been registered since 2000, despite repeated applications, which is at odds with paragraph 7.6 of the 1990 OSCE Copenhagen Document. 2
The OSCE/ODIHR has observed the six past elections, which all have been assessed as falling short of OSCE commitments and international standards for democratic elections. 3 The last presidential election held in December 2010 resulted in street protests and arrests of seven presidential candidates and several hundred of citizens, civil society activists and journalists. On 22 August, the remaining political prisoners convicted among others for their participation in these events were released before having served their full terms. 4 However, the right to stand is limited by these previous criminal convictions and further activities such as participation in unauthorized events can lead to reinstatement of their sentences. The IEOM institutions expect that with these releases additional such prosecutions will not happen and that this marks a closed chapter. The election was held amidst an economic downturn and concerns about the regional security situation. It was viewed as an important test on the way to improving relations with the country's partners.
Legal framework and Electoral System
The election is regulated primarily by the Constitution and the Electoral Code. 5 The legal framework remained essentially unchanged since the last presidential election and in previous OSCE/ODIHR reports it was assessed as not adequately guaranteeing the conduct of elections in line with OSCE commitments and international standards. 6 Despite welcome post-electoral engagement, the amendments introduced in 2013 and 2014 also did not address key OSCE/ODIHR recommendations. 7 Furthermore, contrary to paragraph 5.8 of the 1990 OSCE Copenhagen Document, no public consultations were held with relevant stakeholders prior to these amendments. 8
The noted shortcomings of the legal framework include unclear rules on the composition of election commissions, on the signature verification process by territorial election commissions (TECs) as well as a lack of procedural safeguards for counting and tabulation, including no requirement to publish disaggregated election results. There are insufficient legal safeguards against misuse of state resources, limitations on the rights of observers and other electoral actors as well an ineffective legal redress. 9 Overall, these legal shortcomings do not ensure the transparency and integrity of the election process.
2 Paragraph 7.6 of the 1990 OSCE Copenhagen Document provides that participating States will respect the right of individuals and groups to establish in full freedom, their own political parties and other organizations.
4 None of the six individuals were rehabilitated and therefore do not enjoy full political rights. One of the former presidential candidates was briefly detained upon returning to Belarus and continues facing investigation.
3 See all previous OSCE/ODIHR reports on Belarus
5 These are supplemented by the 1997 Law on Mass Actions, the 2008 Law on Mass Media, the 1999 Civil Procedure Code, the 1999 Criminal Code, the 2003 Code of Administrative Offences and Central Election Commission (CEC) Resolutions.
7 In its final reports after the 2010 and 2012 elections, the OSCE/ODIHR EOM made a total of 38 recommendations, of which 16 repeated in both years. Only three of the recommendations were partly addressed. In 2013, Belarus invited and hosted the OSCE/ODIHR on two occasions to discuss previous recommendations and planned amendments. Subsequently, no requests for a formal legal review of the draft or adopted amendments were made.
6 Specifically, election commissions must be composed in a balanced way, protected from strong executive influence and operate transparently, obstacles to candidacy must be removed and the rights of candidates must be ensured; early voting and voting using mobile ballot boxes must be properly regulated and transparent; the limited role of international and domestic observers gives ground for serious concern about the transparency of the work of the election administration; clear provisions on appeals are required in respect of decisions by election commissions. For further details see the OSCE/ODIHR and the Venice Commission Joint Opinion on the amendments to the Electoral Code.
8 Paragraph 5.8 states that the legislation will be adopted at the end of public procedure.
9 A number of OSCE/ODIHR EOM interlocutors including one presidential candidate shared these concerns.
Existing provisions and laws from 2011 and 2012 limit fundamental freedoms of association, assembly and expression. 10 The law gives the authorities wide discretionary powers to deny registration or deregister political parties and public associations, and criminalizes foreign funding of human rights organizations. The amendments introduced burdensome procedures for obtaining permission to hold public assemblies and increased sanctions for organizing unauthorized meetings. 11 Freedom of expression was further limited by a ban on calls and acts of disruption, cancellation or postponement of elections, in addition to existing criminal and administrative offences for defamation and insult. Such legal restrictions are inconsistent with principles enshrined in the 1990 OSCE Copenhagen Document and other international obligations and standards and do not guarantee the free expression of the will of voters.
The president is elected for a five-year term in a two-round majoritarian contest. If no candidate gains more than 50 per cent of the total number of votes cast in the first round, a second round is held within two weeks between the top two candidates. In a second round, a candidate has to again obtain over 50 per cent of the votes to get elected. In addition, a more than 50 per cent turnout is required for the election to be valid. These requirements are applicable to both rounds.
Election Administration
The election was administered by a three-tier structure of election commissions comprising the CEC, 153 TECs and 6,129 precinct election commissions (PECs); 49 PECs were formed at diplomatic representations abroad.
The CEC appointed in 2011 is the only permanent election body, and only two members are employed full-time. 12 Out of 12 CEC members 6 are appointed by the president, including the chairperson, and 6 by the Council of the Republic, recommended by joint decision of the presidiums of legislative councils and executive committees at regional and Minsk city level. Four CEC members are women, including the chairperson. Three presidential candidates nominated members with advisory vote to the CEC, and all four candidates appointed a total of 117 proxies countrywide. 13
Following an open and unrestricted invitation to the IEOM institutions by the authorities, the Central Election Commission (CEC) exhibited a welcoming attitude towards international observers. It made technical preparations and passed all decisions within legal deadlines. 14 All decisions were passed unanimously and, together with the regulations and the guidelines, were published on its website. In general, some electoral stakeholders expressed a lack of confidence in the independence and impartiality of the election administration.
Although the Electoral Code provides that election commissions are independent from any state bodies, the government had a key role in appointing commission members. 15 Each TEC may have from 9 to 13 members and each PEC from 5 to 19 members, with the size determined by the appointing body. At least one third of TEC or PEC members had to be nominated by political parties and public
10 Amendments were introduced to the Electoral Code, the laws on Mass Actions, Public Associations, Mass Media, and Political Parties, the Criminal Code, and the Codes of Criminal Procedures and Administrative Offences.
12
11 The OSCE/ODIHR and Venice Commission Joint Opinion on Law of Mass Events notes that the current regulation of freedom of assembly raises a number of serious concerns regarding its compliance with international standards.
13 The Electoral Code provides that candidates have the right to nominate a member with an advisory vote to the CEC and up to 30 proxies countrywide. The incumbent did not nominate member with an advisory vote.
Other CEC members, of whom some are based out of Minsk, take only limited part in the daily work of CEC.
14 Between the calling of the election and election day, the CEC held 7 meetings and passed 63 resolutions.
15 TEC are formed by joint decision of the presidiums of legislative councils and executive committees at regional and Minsk city level; PECs – by decision of district or city commissions, or local administrations.
associations, not more than one third could be civil servants, and each nominating body could have only one member on each commission. 16 Despite that the Electoral Code prevents heads of local executive and administrative bodies to be members of election commissions, the OSCE/ODIHR EOM noted that other senior management professionals of these bodies such as deputy heads or heads of departments held managerial positions on some TECs or directed their work. 17
The legal formula for the membership composition of territorial election commissions (TECs) and precinct election commissions (PECs) could potentially have ensured a balanced representation of different viewpoints. However, the absence of clear legal criteria for the selection of election commissioners allows the local authorities full discretion in the appointment process. 18 Opposition groups had only few members appointed to TECs and PECs, with none in managerial positions. 19 Their complaints for non-inclusion of nominees were, as a rule, dismissed as 'groundless'. The nomination process was not inclusive and some electoral stakeholders expressed a general lack of confidence in the independence and impartiality of election commissions at all levels.
Local authorities appointed some 2,623 TEC and 66,941 PEC members. The TECs held sessions accessible to observers. The TECs organized basic training for PECs' leadership on early voting and election day procedures. OSCE/ODIHR EOM LTOs reported that the trainings varied in comprehensiveness and methodology. Women were well represented on election commissions, with some 59 and 71.5 per cent of the TEC and PEC members, respectively. Women held all secretary positions at TECs, but constituted only one-third of TEC chairpersons.
The CEC produced joint biographical material on candidates, which was mailed to voters and displayed in especially designated spaces and polling stations. Stencils and candidate information in Braille were available to blind voters. Most election material was produced in both Belarusian and Russian, but some only available in Russian. The CEC ordered the printing of 7,285,000 ballots.
Voter Registration
Citizens who are 18 years old by election day have the right to vote at the precinct where they reside. The Electoral Code establishes that those declared legally incapacitated by a court, as well as those imprisoned with criminal convictions are not eligible to vote. Disenfranchisement of prisoners regardless of the gravity of the crime committed and of those in pre-trial detention is at odds with the principle of the universal suffrage. 20 On a positive note, on 24 September the CEC passed a resolution granting voting rights to citizens under arrest for criminal convictions up to three months.
PECs are responsible for voter registration based on data provided by local authorities and there is no permanent or centralized voter list, which does not provide legal safeguards against multiple registrations. 21 The PECs prepared their voter lists based on information provided by local authorities and used various practices for their verification, including door-to-door checks. The law requires that a
16 Labor collectives and groups of 10 voters may also nominate members of TECs and PECs.
18 See the OSCE/ODIHR and the Venice Commission Joint Opinion on the amendments to the Electoral Code
17 The OSCE/ODIHR EOM observed this in the oblasts of Minsk (Zavodskoi raion), Homiel (Buda Kashyelovskiy and Rogachevskiy raion), Hrodna (Leninskiy district, Berestovitskiy and Svislochskiy raion) and Mahiliou.
19 Interlocutors from the "Right to Choose 2015" coalition, a citizen observation group, informed the OSCE/ODIHR EOM that out of 374 members proposed to PECs only 10 were appointed.
.
20 Paragraph 7.3 of the 1990 OSCE Copenhagen Document states that the participating States will "guarantee universal and equal suffrage to adult citizens and paragraph 24 provides that restrictions on rights and freedoms must be "strictly proportionate to the aim of the law". Paragraph 14 of the 1996 UNHRC's General Comment No. 25 states that grounds for the deprivation of voting rights should be "objective and reasonable".
21 Section I.2 of the Council of Europe Venice Commission Code of Good Practice in Electoral Matters (Code of Good Practice) requires permanent voter list.
voter may only be registered to vote in one polling station. 22 The absence of a unified voter list effectively excluded the possibility to run cross checks for multiple registrations. The voter registration system is also overly permissive, allowing registration in polling stations on election day without sufficient legal safeguards.
After the verification of voter lists was completed on 25 September, the CEC announced that a total of 6,995,181 voters were registered to vote; 5,742 voters abroad. Contrary to the Venice Commission's Code of Good Practice in Electoral Matters, voters can register in polling stations to vote on election day. 23
Candidate Registration
Belarus-born citizens not younger than 35 years old with a permanent residence in the country for the last ten years are eligible to stand as candidates, provided that they do not have an un-expunged criminal record. 24 A presidential candidate is nominated by an initiative group of no less than 100 voters. The right to stand is limited by previous criminal convictions; activities such as participation in unauthorized events can lead to reinstatement of sentences.
By 20 July, the CEC registered 8 initiative groups out of 15 applications. 25 Three initiative groups failed to collect the required 100,000 supporting signatures of voters. 26 One nominated candidate was denied registration after TECs detected absent or inconsistent information about the voters signing or people collecting the signatures. 27 In general, all initiative groups were able to collect supporting signatures across the country. On 10 September, the CEC registered four candidates. Some OSCE/ODIHR EOM interlocutors raised concerns about the lack of equal opportunity pointing to the abuse of state resources by the incumbent in the signature collection process.
The verification of registration documents was carried out by TECs in sessions closed to candidate representatives and observers. The rules on signature verification are unclear and at odds with international good practice and allow for arbitrary decisions by TECs which cannot be appealed. 28 Contrary to good practice, TECs were required to check only a sample of the submitted supporting signatures. Overall, the signature verification process as currently implemented allows for arbitrary decisions and potentially constitutes a barrier on candidacy, being insufficiently transparent and undermining confidence in the process. 29
22 The CEC did not issue instructions to PECs on the compilation and verification of voter lists. Furthermore, the CEC instruction no. 23 of 1.7.2015 on the procedure for citizens' participation in voting abroad did not contain any requirement for removing entries of voters registered to vote abroad from voter lists in country.
24 This 10 years residency requirement has been previously criticized for being too lengthy in the 2010 Joint Opinion of the OSCE/ODIHR and the Council of Europe's Venice Commission.
23 The Code of Good Practice states that voter registration should not take place at polling stations on election day.
25 Three were denied on the grounds that the initiative group had less than 100 members, 1 for applying after the legal deadline, 1 for missing documents, 1 for not meeting the 10 year residency requirement, and 1 because the nominated candidate has a previous criminal conviction for mass disorder for participation in 2010 protests.
27 TECs invalidated 123,705 out of 130,404 signatures submitted for presidential nominee Viktor Tereshchenko. The Supreme Court rejected an appeal by Mr. Tereshchenko against the CEC decision denying him registration.
26 Initiative groups of Sergey Kalyakin, Anatoliy Lebedko and Zhanna Romanovskaya.
28 The Code of Good Practice states that the law should not require more than one per cent of the signatures within a constituency and that the checking process must cover all signatures. The required 100,000 supporting signatures equal some 1.43 per cent of the electorate in the nation-wide constituency.
29 See also ECtHR judgment in the case Tahirov v. Azerbaijan, application no. 31953/11, 11 June 2015.
Campaign Environment
The election campaign officially commenced after the registration of candidates on 10 September. All candidates campaigned throughout the country and could convey messages to the electorate in an unhindered manner. The campaign was low-key, but became more active in last two weeks and mostly consisted of meetings with voters and leafleting. The relative public disinterest was accentuated by modest turnout at most campaign events observed by the OSCE/ODIHR EOM. 30
Candidates' election programs focused on peace and stability, the need to preserve the country's neutral status and an economic downturn. In their campaigns, the incumbent emphasized his accomplishments while two other candidates among others referred to his achievements and criticized the opposition.. Only one candidate, whose platform focused predominantly on socio-economic issues, was critical of the incumbent and expressed doubts about the integrity of the election process. This gave voters limited choice.
A number of campaign practices blurred the line between the incumbent's campaign and the state, contravening paragraphs 5.4 and 7.6 of the 1990 OSCE Copenhagen Document. 31 Several of his proxies were high ranking state officials who continued performing their public functions whilst campaigning. 32 A gathering organized by the Ministry of Defence called on all current and former military servicemen and their families to support the candidacy of the incumbent. 33 In addition, leading state-subsidized public associations actively campaigned for the incumbent. 34 The Exarch of the Russian Orthodox Church in Belarus endorsed the incumbent's candidacy during a church ceremony attended by other religious leaders, government officials, foreign diplomats, representatives of progovernment parties and the president. The symbols and slogans used in the campaign of the incumbent featured in state media's election-related reporting and during public events organized by the Ministry of Culture and other state-subsidized bodies. 35 Posters featuring the incumbent's campaign slogans but without the required imprint data were displayed in public and private premises across the country. 36
Local executive bodies designated spaces and venues for campaigning within legal deadlines and mostly respected the legal requirements to publicize the information. Campaigning in the designated locations was possible only after notifying the local or the election administration. 37 In a few cases, the
30 According to the CEC, as of 28 September a total of 426 indoor and 184 outdoor meetings were held by all candidates, of which 406 and 84, respectively, held by the campaign of the incumbent. The OSCE/ODIHR EOM observed 96 campaign events.
32 The Speaker of House of Representatives, four out of the six regional governors, the Chairperson of the Belteleradiocompany, the General Director of the state-owned enterprise Belaruskaliy and other leading officials. In a welcome move, the Minister of Labor and Social Protection stepped down for the duration of the campaign to become leader of the incumbent's campaign.
31 Paragraph 5.4 provides for a clear separation between the State and political parties; in particular, political parties will not be merged with the State. Paragraph 7.6 states that political parties and organizations will be provided with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment.
33 The call was published on 25 September on the Ministry of Defence's website. Paragraph 23 of the OSCE Code of Conduct on Politico-Military Aspects of Security states that while providing for the individual service member's exercise of his or her civil rights, states will ensure that its armed forces as such are politically neutral.
35 On 25 September, Ms. Korotkevich filed a complaint to the CEC claiming that the same logo was used by the incumbent's campaign. In rejection the complaint, the CEC argued that the logo could be used by anyone.
34 For instance, the Federation of Trade Unions (FTU), the Public Association of Veterans, the Republican Youth Union (BRSM), Belaya Rus and the Union of Women with membership well over half of the country's population.
36 OSCE/ODIHR EOM observations in Brest, Grodno, Gomel, Mogilev, Vitebsk, Minsk oblasts and Minsk city.
37 Although this is in line with national legislation, it is at odds with international principles of freedom of assembly and paragraph 9.2 of the 1990 OSCE Copenhagen Document which states that everyone has the right of peaceful assembly and any restrictions needs to be based in the law and consistent with international standards.
designated locations were considered unsuitable for campaigning. 38 In one case, a candidate's attempt to hold an event in a non-designated location was interrupted by officials. 39 In contrast, the proxies of the incumbent organized meetings with voters in state-run enterprises, which gave him an undue advantage 40 and is at odds with paragraph 7.7 of the 1990 OSCE Copenhagen Document. 41
Opposition forces who were not running in the election, sought to make use of outreach opportunities which according to them are unavailable outside the campaign period. Several opposition politicians held public events in Minsk and other large cities questioning the legitimacy of the election. Although the events were not prevented from taking place by the authorities, their organizers were tried in court and fined for conducting them without permission. Requests for similar meetings by other electoral actors were rejected. 42 In contrast, the Communist Party of Belarus (CPB) and some public associations were permitted to hold events in support of the incumbent. 43
Campaign Finances
Candidates had the right to use their own resources and contributions by citizens and legal entities, deposited to their election campaign fund. 44 Candidates had the right to use their own resources and donations for campaigning. The 2013 amendments increased the caps on donations and spending limits, but abolished public funding. 45 In a move widely welcomed by the contestants, the period for collection and use of funds was prolonged. Each candidate could spend up to EUR 85,000. 46 Despite the increase of caps on donations and spending limits, some candidates and other stakeholders opined that these remain low and do not allow for meaningful campaigning. 47 Third party financing is not regulated and in-kind donations are not reported. Whereas charities, religious and state funded organizations are rightly not allowed to contribute to campaign funds, several state-funded public associations used funds and in-kind contributions in favour of the incumbent. 48
38 OSCE/ODIHR EOM observations in Minsk oblast and the cities of Orsha, Vitebsk and Gomel.
40 OSCE/ODIHR EOM observations in Bobruisk, Grodno, Gomel, Minsk, Vitebsk and Mogilev. In one case, EOM observers were barred from observing a campaign event held on the premises of a state enterprise in Minsk city.
39 The event was organized by Ms. Korotkevich campaign on 15 September in Lahoysk, Minsk oblast and was stopped by officials including the TEC Chair and Secretary and the Deputy Head of the local administration.
41 Paragraph 7.7 states that participating States will ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution.
43 CPB informed the OSCE/ODIHR EOM on 25 September that it was able to hold events for the incumbent.
42 For instance, the Belarusian Party of the Left 'Fair World' reported that that some 61 requests for meetings with voters were rejected as of 6 October. The United Civil Party claimed that eight of its requests for meeting with voters were rejected in the Gomel oblast. Four of the 16 requests by members of the organizing committee of the Belarusian Christian Democracy were rejected, with the remainder pending.
44 Some OSCE/ODIHR EOM interlocutors cited an older statement by the president warning businesses against funding the opposition as having a chilling effect on their readiness to donate to other candidates' campaign fund.
46 One EUR equals approximately BYR 20,000.
45 There is in-kind state support in the form of use of premises for campaign events, campaign materials and free airtime.
47 As of 9 October, Mr. Lukashenka declared income of EUR 79,000 and expenditure EUR 20,000, Ms. Korotkevich income EUR 1,300 and expenditure EUR 700, Mr. Gaidukevich income EUR 2,100 and same expenditure, Mr. Ulakhovich income EUR 1,600 and the same expenditure.
48 Including Belaya Rus, FTU, the Union of Workers, the Union of Veterans, the Union of Cultural workers, the BRSM, the Women's Union, the Veterans' Union, the Officers' Union. The head of incumbent's initiative group who is also chairman of the FTU, on 10 September publicly stated that funds from the FTU budget were used for printing portraits of Mr. Lukashenka used in pickets.
Six initiative groups opened campaign funds early in order to finance the signature collection.49 As required by law, the CEC published information on total income and expenditures of candidates on its website on a weekly basis, and all candidates submitted financial reports to the CEC. However, the reports were not comprehensive and the law does not require publishing of the reports nor of disaggregated incomes and expenditures of candidates. 50 The law does not require audit, and the CEC stated that it has no means to check whether candidates received or spent non-declared funds. The lack of information available for public scrutiny and the absence of audits limited the transparency and accountability of campaign finance.
Media
A variety of broadcast and print media operate in the country, with state-owned media dominating the media landscape. Alternative sources of information broadcast from neighboring countries. However, several OSCE/ODIHR EOM interlocutors reported that journalists face difficulties in obtaining accreditation to work for foreign media and may be fined for working without, which is considered a restriction on the right to freedom of expression and dissemination of information. 51
Internet represents an increasingly important platform to access independent viewpoints. However, the freedom of expression online has been constrained by the 2014 amendments to the Law on Mass Media by extending the existing restrictions on traditional media to online media, whose owners are liable for any content posted, potentially including users' comments, blogs and social networks. In case of a suspected violation, the Ministry of Information is entitled to shut down websites by court decision. If the information is related to specific criminal offences or considered 'harmful to the interests of Belarus', no court decision is required. This leaves unwelcome room for interpretation and arbitrary decision by the authorities to shut-down media, as noted by OSCE/ODIHR EOM interlocutors and international media watchdogs.
Freedom of expression is guaranteed by the Constitution, which prohibits censorship and establishes the right to receive, store and disseminate public information. Despite this, several state agencies continue the practice of classifying public information, at odds with paragraph 9.1 of the 1990 OSCE Copenhagen Document and other international standards and good practices. 52 On 22 September the CEC rejected a journalist's request for detailed information regarding candidates' campaign funds explaining that mass media are not entitled to receive this information.
In fulfillment of its legal obligation, the CEC issued regulations guaranteeing equal access to stateowned media for all contestants through the distribution of free airtime slots in an uncensored format, which contestants acknowledged. Despite the restrictive media environment, candidates were able to convey their messages to the public in two televised blocks and two radio blocks on Belarus 1 and Radio National 1 for duration of 30 minutes each. The incumbent declined to use free broadcast time. A political debate took place on 3 October among three campaigns. 53 In line with the CEC regulation,
49 Namely, Gaidukevich, Kalyakin, Korotkevich, Romanovskaya, Tereshchenko and Ulakhovich. These funds could not be used for campaign materials or media coverage.
51 According to the Association of Journalists, in 2015, 28 reporters were fined under Article 22.9.2 of the Code of Administrative Offences for working for foreign media without accreditation. See European Parliament Resolution of 10 September 2015, the OSCE Representative on Freedom of the Media statement and the 2015 Report of the UN Special Rapporteur on the situation of human rights in Belarus.
50 The CEC declined a request by the OSCE/ODIHR EOM to review the documents and invoices submitted by Mr. Lukashenka, although it allowed review of such documents submitted by the other three candidates.
52 Paragraph 9.1 of the 1990 OSCE Copenhagen Document states that everyone will have the right to freedom of expression including the right to communication and that the right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority. The exercise of this right may be subject only to such restrictions prescribed by law and consistent with international standards.
53 At the debate one of the candidates was represented by his proxy; the incumbent was not represented.
all state-funded newspapers analyzed by the OSCE/ODIHR EOM published all candidates' election programs. Although permitted, candidates did not take advantage of paid political advertising.
The OSCE/ODIHR media monitoring preliminary findings indicate significantly greater coverage of the incumbent. His institutional activities were extensively reported with some state-owned media shaping their coverage in a way which suggested political messages favorable to him. 54 In the period from 7 September to 7 October, broadcast media devoted 47 per cent of their political coverage to the incumbent, 9 per cent to Ms. Korotkevich, 7 per cent to Mr. Gaidukevich, 7 per cent to Mr. Ulakhovich, 22 per cent to other relevant political actors and 8 per cent to the CEC. Print media allocated 34 per cent of their political coverage to Mr. Lukashenka, 14 per cent to Ms. Korotkevich, 11 per cent to Mr. Ulakhovich and to Mr. Gaidukevich, 21 per cent to other relevant political actors and 9 per cent to the CEC. The websites of the privately-owned press agency BelaPAN, were temporarily inaccessible on 3, 4 and 5 October, allegedly due to massive cyber-attacks.
A Media Supervisory Board (MSB) was established by the CEC to oversee the coverage of the campaign in the media. It was composed of representatives of state-owned media and chaired by the Deputy Minister of Information. The board did not conduct systematic media monitoring and only had an advisory role. During the campaign, the MSB reviewed and rejected one media-related complaint. In addition, the OSCE/ODIHR EOM was informed that the CEC received two other media-related complaints, which were not discussed by the MSB, and for one of the cases an informal warning was given by phone without involving the MSB. 55
Complaints and Appeals
A complaint may be lodged to election commissions, the courts or the Prosecutor's Office. There are limitations on who can lodge a complaint, depending on the issue. Decisions on the registration of an initiative group or a candidate, on the signature verification process and the final election results are final and not subject to challenge. 56 Complaints are filed and reviewed within three days, as a general rule. When additional verification is required, the review period is extended to 10 days whereas complaints submitted on election day must be reviewed immediately. Some decisions of election commissions can be appealed either to the higher level election commission or a court at the corresponding level, which allows for selection of a venue and is not in line with international good practice. 57 Election commissions cannot impose any sanctions other than warnings and do not have any enforcement capacity. A repeated warning may lead to deregistration of a candidate.
As of 9 October, according to the CEC, 239 election-related applications and complaints were filed with the CEC, 129 with TECs, 334 with PECs and 54 with local authorities. In addition, 32 complaints were reviewed by regional courts, 6 by the Supreme Court and 40 election related cases were dealt with by the Prosecutor's Office. Most complaints related to inequitable conditions during signature collection and campaigning for the incumbent, denial of registration of initiative groups and denial of appointment of nominated members to TECs and PECs. Two complaints were filed by Ms. Korotkevich and none by the other three candidates. Complaints were predominantly filed by citizens
54 Namely, a state-owned newspaper featured a recurring column "Time to Choose" comprising a combination of headlines such as "Vote for Belarus" or "You will lose" and a juxtaposition of positive images of the country's achievements and photographs of foreign regions affected by hunger and war. In addition, several types of advertisements broadcasted on national media conveyed concepts recalling the incumbent's campaign and two documentaries focusing on his achievements were repeatedly broadcasted on two state televisions.
56 However, a candidate may challenge at the Supreme Court the denial of their own registration and of their initiative group as well as the CEC decision invalidating the election results.
55 The complaint was regarding the appearance of the Chairperson of the Belteleradiocompany as presenter in a talk show after being appointed as proxy of the incumbent.
57 For instance, PEC decisions on voter registration may be appealed both to TECs and courts at the corresponding level. See Paragraph 97 of the Code of Good Practice.
on behalf of Human Rights Defenders For Free Elections, the Belarus National Front, as well as others with the right to nominate members to TECs and PECs.
Most complaints were either dismissed on formal grounds or rejected as unsubstantiated. 58 Overall, the review of complaints was done in a timely, but not always transparent manner. Only three complaints submitted to the CEC were considered in public sessions whereby the complainant and the defendant were present. 59 All other complaints were reviewed by individual CEC members or staffers. 60 In a positive step, the CEC introduced a register of complaints. Contrary to good practice, the law does not require the CEC or courts to publish decisions or release any information on complaints. 61 Overall, dispute resolution lacks transparency and does not to ensure legal integrity, at odds with paragraph 5.10 of the 1990 OSCE Copenhagen Document.
Citizen and International Observers
The Electoral Code provides for citizen and international election observation. Political parties, public associations, labor collectives and groups of 10 voters may nominate citizen observers. The CEC issues accreditation to observers from public associations and political parties registered at national level, while TECs and PECs accredit observers at the corresponding level. The rights of citizen and international observers are prescribed by law in an exhaustive manner and were interpreted and implemented restrictively. Observers are not entitled to follow all stages of the election process (e.g., signature verification, tabulation of results) and there are wide discretionary powers of election commission to deny access to observers. These restrictions are at odds with the international good practice. 62
According to the CEC, a total of 43,572 citizen observers were accredited, including 27,512 from public associations, 7,413 from citizens' initiative groups, 2,015 from labor collectives, and 6,632 from political parties. In addition, 928 international observers were accredited by the CEC, including PACE for the first time since 2001. The "Right to Choose 2015" campaign, the "For Fair Elections" initiative and the Human Rights Defenders for Free Elections – a joint effort of the Belarusian Helsinki Committee and the non-registered Human Rights Centre "Viasna" – were the most active citizen observer groups, which carried out long-term observation and regularly reported their findings. Some two-thirds of all accredited citizen observers represented public associations subsidized by the state, including the FTU, BRSM and Belaya Rus that were also engaged in active campaigning for the incumbent president. 63
Election Day
In accordance with the law, all voters could vote early in polling stations in the five days prior to election day, without having to provide justification. At the end of each early voting day and during daily breaks, a paper seal was glued over the slot of the ballot box and it was guarded by police
58 For instance, a complaint by the Belarusian United Left Party 'Fair World' on rejection of their TEC nominee was dismissed by the Gomel Oblast Court for lack of jurisdiction. The Electoral Code provides that complaints on the formation of TECs and PECs are filed with the corresponding court.
60 The law requires that appeals of decisions of lower commissions are reviewed in a collegiate manner, whereas all other complaints may be reviewed also by individual election commission members or staff.
59 The complaints were related to misuse of state resources in the collection of signatures for the nomination and for campaigning of the incumbent.
61 See paragraphs 68 and 72 of the Code of Good Practice.
63 A training manual produced and distributed by the BRSM at observer trainings across the country saw countering the activities of "forces aimed at destabilization of the society" as observers' primary goal and included detailed instructions on how to request removal of other observers from polling stations.
62 See paragraphs 88 and 90 of the Code of Good Practice.
overnight. At the close of early voting, the CEC announced a turnout of 36.6 per cent. The poor quality of seals and ballot boxes, at times, compromised ballot security.
The IEOM observed the final day of early voting in a systematic manner across the country. Overall, the early voting process was assessed positively (96 per cent of observations). Secrecy of vote was noted as not being ensured in four per cent of IEOM observations. In most instances, the daily protocol was put on display at the end of voting. However, on the last day of early voting, this was not done in seven per cent of polling stations observed. In 50 per cent of cases observers were denied access to check voter lists and in some cases, observers were prevented in seeing procedures. Such restrictions diminished the processes' transparency. Complaints filed in a number of PECs alleged discrepancies between reported turnout and the number of signatures in the voter lists, and inconsistent completion of daily protocols.
Polling stations opened on time, with minor procedural problems. Citizen observers were present in 90 per cent of polling stations observed by the IEOM. Overall, the opening was assessed as good or very good in 95 per cent of reports. In 13 polling stations monitored, the ballot box from the early voting was not visible to the observers, as is required by law.
The voting process was assessed positively in some 95 per cent of observations; some procedural problems were noted. The overall transparency of the voting process was assessed negatively in 3 per cent of reports. A large number of IEOM observers were not allowed access to check the voter lists, but those who were noted instances of series of seemingly identical signatures in 47 polling stations. Indications of ballot box stuffing were reported from 8 polling stations. Group voting was noted in 6 per cent of observations.
In 6 percent of polling stations observed, not all phases of the voting process were visible to observers or the PEC, thereby reducing the transparency of the process. Citizen observers were present in 94 per cent of polling stations observed. There were 15 reports of unauthorized persons interfering in or directing the work of PECs. IEOM observers reported that in 6 per cent of polling stations observed, they were not granted full co-operation by PEC members or were restricted in their observation. Campaign materials or activity was observed inside 2 per cent of polling stations observed by IEOM observers.
The count was assessed negatively by observers, with some 30 per cent of polling stations assessed as bad or very bad of the 169 processes observed, indicating significant problems. Indications of ballot box stuffing were reported by observers in 38 instances from 22 polling stations during the count. One in five PECs did not perform basic reconciliation procedures such as counting the number of signatures on the voter lists and mandatory crosschecks, an important safeguard. In one-third of polling stations, the vote count lacked transparency. From some 25 per cent of polling stations, IEOM observers reported that they were not provided the opportunity to observe the count, not granted full co-operation by the PEC or restricted in their observation.
The validity of the ballot was often not determined in a consistent manner. In several instances, the IEOM observed inaccurate recording of result figures (12 counts), empty but pre-signed results protocols (25 counts) or other significant procedural errors or omissions (29 counts). In 13 counts observed, PECs had difficulties completing the results protocol, which in a few cases was not completed in ink, as required. In 18 counts, the PEC failed to display the results protocol for public familiarization, as required by law.
The IEOM observers observed the tabulation process in 125 of the 146 TECs. The tabulation process was assessed negatively in 25 per cent of the TECs observed, which is significant. The tabulation process was observed to lack transparency. IEOM observers were restricted in their observations in 77
TECs and did not have a clear view of the process in 23 TECs. Several procedural shortcomings were noted, including PECs delaying the transfer of the protocol to the TEC or changing protocol figures at the TEC premises (observed in 12 cases each). Key procedures for the cross-checking of PEC-level results and their processing were frequently not followed.
The English version of this report is the only official document. An unofficial translation is available in Belarusian and Russian.
MISSION INFORMATION & ACKNOWLEDGEMENTS
Minsk, 12 October – The OSCE/ODIHR EOM opened in Minsk on 26 August. It includes 13 experts in the capital and 34 long-term observers deployed throughout the Republic of Belarus.
On election day, 400 observers from 37 countries were deployed, including 325 long and short term observers deployed by the OSCE/ODIHR, as well as a 58 member delegation from the OSCE PA and a 13-member delegation from the PACE. Opening was observed in 169 polling stations and voting was observed in 1,504 polling stations across the country. Counting was observed in 169 polling stations. The tabulation process was observed in 125 TECs. Limited observation of early voting procedures was carried out in 1,058 polling stations.
The observers wish to thank the authorities of the Republic of Belarus for their invitation to observe the election and the Central Election Commission and the Ministry of Foreign Affairs for their assistance. They also express their appreciation to other state institutions, political parties and civil society organizations and the international community representatives for their co-operation.
For further information, please contact:
* Ambassador Jacques Faure, Head of the OSCE/ODIHR EOM
Vladimir Misev, OSCE/ODIHR Election Adviser, in Warsaw (+48 669 672 290);
* Thomas Rymer, OSCE/ODIHR Spokesperson (+48 609 522 266), or
* Richard Solash, OSCE PA Director of Communications (+45 601 08 380), or Andreas Baker, OSCE PA Director of Elections (+45 601 08 126);
* Chemavon Chahbazian, PACE secretariat (+33 650 687655)
OSCE/ODIHR EOM Address:
Tel: +375 17 226 9262
7 th floor, Hotel "Yubileyny", 19, Peramozhtsau Ave., 220004 Minsk
Fax: +375 17 226 9264
Email: firstname.lastname@example.org
Website: www.osce.org/odihr/elections/belarus
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Street Furniture Guidelines
May 2021
Business Use of Public Spaces FAQs FAQs
1. Can I use a public space outside my business as an extension to my business? The policy of the City Council is to assist hospitality businesses wishing to operate in public spaces adjacent to their premises.
and send an e-mail to firstname.lastname@example.org outlining your proposal. Agreement with adjoining businesses may be required.
2. Is there a limit to what I can do? Yes. Dublin City Council has responsibility for managing public spaces throughout the City. We need to make sure that the public domain is safe and navigable for all citizens, therefore businesses must operate within certain regulations and guidelines.
3. Can I use the footpath in front of my business for furniture? Generally you can but you need to apply for a Temporary Street Furniture COVID Permit. You cannot block or interfere with fire exits and you will need to maintain a 2 metre circulation space on the footpath over and above your temporary seating space requirement, for safe movement of pedestrians, as well as people with disabilities. It may not be possible to accommodate your application if our requirement cannot be complied with. Please see attached Temporary Street Furniture COVID Permit Information.
4. What type of furniture is covered under a Temporary Street Furniture COVID Permit? Tables, Chairs, Barriers/Windbreakers, Awnings/Coverings, Heaters (electric or permanently fed gas heaters only), Lights, Gazebos, Dining Pods and Umbrellas. All furniture etc. must be capable of being removed every evening and stored off street.
5. What type of furniture is not covered under a Temporary Street Furniture Permit? Signs attached to a building and any permanent structure attached to the outside of a building or in the public realm needs full planning permission. In general, any structure that cannot be removed every evening, including outdoor pods, parklets etc. needs full planning permission see email@example.com
6. Can I use a parking space/loading bay in front of my business premises for furniture? In some cases you will be able to. However, each application will need to be assessed, to see if the parking space/ loading bay can be suspended. Please follow the Temporary Street Furniture COVID Permit process
7. Can I use the public road in front of my business for furniture? In most situations the answer here is No, but please make an enquiry via email to firstname.lastname@example.org.
8. Can I make an application in combination with a neighbouring similar businesses? Yes, in appropriate locations and subject to additional requirements, DCC support businesses coming together to make combined applications.
9. How do I begin? Get in touch with us here at Dublin City Council at email@example.com. Tell us what you are proposing. We can also point you in the direction of other businesses, that are approved and are operating successfully, that can be observed as models of best practice.
10. Is there anything else I need to consider? The safety of customers and of members of the public is paramount. Please see General Guidance and Dublin Fire Brigade Fire Safety and Operational Requirements outlined below.
Temporary COVID Street Furniture Permit Application Procedure
Applications for temporary COVID street furniture permits are dealt with by way of permission granted under Section 71 of the Roads Act, 1993. Every temporary permit is issued subject to the general conditions for street furniture permits (see below). In addition, specific conditions may be applied in respect of a particular temporary permit. Temporary permits will be issued free of charge for a 6 month period.
Acceptable evidence of Public Liability Insurance cover indemnifying Dublin City Council must be provided.
Formal applications will only be invited, where proposals have been assessed in advance by the Council. The assessment is to establish if capacity exists on the pavement to accommodate the proposal or if a parking space/loading bay can be suspended. The assessment will take account the following:
- existing street furniture
- the convenience & safety of road users, including pedestrians and cyclists
- fire safety
- public health requirements including social distancing
Applicants will be required to provide full contact details for the following personnel;
-
the applicant
- the on-site manager
- the businesses COVID Compliance Officer
Any breaches of public health or fire safety guidelines will result in the immediate withdrawal and cancellation of the temporary permit.
Completed application forms should be returned to:
Email firstname.lastname@example.org
Notes:
The applicant will be required to submit one of the following:
(i)
Evidence that food is sold for consumption on the premises or
(ii) Evidence than an Intoxicating Liquor Licence has been issued in respect of the premises.
All applications must be made on the official Application Form and must be accompanied by drawings, including measurements of the proposed area and dimensions of clear space, providing the required access widths for vehicular and pedestrians, and also indicating the following:
(ii)
(i)
(ii)
(iii)
Dimensions of the proposed area and the location and dimensions of the tables, chairs or other items of furniture to be located within the area. Information on the type of outdoor seating and screens to be provided e.g. metal seating, fabric screening etc.
Dimensions and locations of fire exits.
Details of screens proposed to enclose the permitted area. All permitted areas must be securely screened.
A photograph of the premises.
(i) All utilities/services in the area including lampposts, bollards, fire hydrants, manholes, cycle stands, litter bins and all 'in situ' items of street furniture, etc. within 10m of the proposed area.
Temporary COVID Street Furniture Permit Application Procedure
GENERAL CONDITIONS FOR THE PLACING OF TABLES AND CHAIRS OUTSIDE A HOTEL, RESTAURANT, PUBLIC HOUSE OR OTHER ESTABLISHMENT, WHERE FOOD/ALCOHOL IS SOLD FOR CONSUMPTION ON THE PREMISES.
1. The granting of a temporary COVID permit refers only to the placing of furniture on a public footpath/ roadway, adjacent to the applicant's property. It does not permit any third party advertising or the storage and display of goods at the location.
all actions, suits, claims, demands by any person, arising from injury or damage to person or property in consequence of the placement of the said table and chairs or other furniture on the footpath/road. The applicant/applicant's agent will be responsible for compliance with public health advices, including social distancing requirements.
2. The dimensions and total area of permitted street space in square metres shall be as specified in the Permit.
3. The area for street furniture shall be enclosed by way of screens, the design of which, including material proposed to be used, must be approved by Dublin City Council.
4. A copy of the Permit shall be prominently displayed at the main entrance outside the premises, so as to be clearly visible by members of the public and officials of Dublin City Council. The permit will be deemed invalid if on inspection items are found in the permitted area, for which a permit has not been granted.
5. The granting of a temporary permit does not automatically guarantee its renewal.
6. The applicant shall not sub-let the permitted area.
7. A change in use of the permitted area will require the submission of a new application.
8. The granting of a COVID street furniture permit will be for a 6 month period.
9. The applicant/applicant's agent shall maintain the area used for street furniture in an acceptable condition, so as not to constitute a nuisance. He/ she shall indemnify Dublin City Council against
10. The Applicant shall be required to submit for inspection to Dublin City Council, and to continue to maintain a Public Liability Insurance policy, which provides cover to a minimum value of €6.5 million indemnifying Dublin City Council against third party claims.
11. Furniture and other items shall be removed immediately if requested by Dublin City Council. Dublin City Council reserves the right to cancel, suspend or vary the terms of the Permit at any time. No claim for damages or loss of income under any heading shall be taken against Dublin City Council for suspending, cancelling or varying the terms of the permit.
12. No claim for compensation shall be entertained in respect of damages or losses, suffered as a direct or indirect consequence of the maintenance requirements of any statutory undertaker.
13. All costs incurred by Dublin City Council, including any repairs to the public road and services necessary arising as a result of the operation of the permit, shall be at the expense of the permit holder. Only Dublin City Council shall carry out work on the public road/footpath. The permit holder shall enter into an agreement with Dublin City Council to pay for any repairs to the footpath or public roadway arising from the permit.
14. Holes may not be made in the public road/footpath.
15. A clear and direct entry between the public footpath/road and the entrance to the premises shall be maintained at all times.
16. The tables and chairs or other items of street furniture etc., shall not obstruct visibility at junctions, accesses, fire exits and fire hydrants, access for fire appliance etc.
17. No musical apparatus shall be used within the permitted area and no music etc. shall be played or broadcast within the permitted area.
18. Access for maintenance purposes to public lighting equipment and the associated under-ground or over-head services shall be available at all times.
19. The permitted area shall not enclose any public lighting columns or apparatus or use public lighting equipment for unauthorised supports or attachments.
21. No table or chair or other item of street furniture shall be positioned over or obstructing a fire hydrant.
22. If intoxicating liquor is being served in the area covered by this permit, the permit holder must also comply with the requirements of the Intoxicating Liquor Acts. The attention of the permit holder is drawn to the Dublin City Council (Prohibition of Consumption of Intoxicating Liquor on Roads and in Public Places) Bye-Laws 2008, which prohibit the consumption of intoxicating liquor in public places. Failure to comply with the provisions of the Act & Bye Laws will result in the withdrawal of the Street Furniture permit.
20. All water main covers, sewer manholes and service access points for utilities and fire hydrants shall be accessible at all times.
23. Dublin City Council may reduce the permitted area in any particular case, where the occupied space is required in the interests of public safety or to facilitate any works/event during the course of the permitted period.
24. The street furniture shall be of robust and stable construction, to prevent movement in adverse wind conditions.
25. Screens as agreed by Dublin City Council are subject to the following conditions:
(i) Screens to be plain, coloured or neutral canvas type, not more than 1 metre high, spanning between or framed by simple metal type posts.
(ii) Screens to be manufactured from materials of limited combustibility.
(iii) Base plates or weighted bases to screening posts must not extend outside the licensed area.
(iv) All screens, posts and bases must be demountable.
(v) Screens must be sufficiently robust to prevent overturning in adverse wind conditions.
(vi) No advertising apart from the name of the premises to be used on the screens, without the permission of Dublin City Council.
26. Colour type and size of logos, lettering and names applied to the screens, ancillary equipment etc., must be approved by Dublin City Council.
27. Electric or permanently fed gas heaters only are permitted and these must comply with the following conditions:
(i) All heating appliances should have the CE Mark and must be installed by a competent installer, maintained and used strictly in accordance with the manufacturer's requirements.
(ii) Please refer to Dublin Fire Brigade requirements, outlined below, for further information in relation to heating appliances.
28. The footpath/road clearance, as specified in the Permit, must be maintained at all times.
29. Street Furniture may only be placed on the street between the times specified on the permit and must be removed outside these hours. If any street furniture is in place outside of permitted hours, the permit will be immediately rescinded and furniture will be removed at the permit holder's expense.
30. When furniture is placed in a parking space/loading bay a robust barrier/edge must be provided to provide protection. This should also have high visibility markings.
31. When placing furniture in parking space/loading bay, consideration should be given to height differences between the carriageway and the footpath, ensuring that this is made safe for customers.
32. The operator is required to provide their own litter bins (include provision for cigarette litter for licensed premises) and to carry out regular cleaning within & around the outside space and retain a cleaning log for inspection. The recommended cleaning schedule is hourly. The area should be cleaned down at the end of trading to remove any spillage, staining or litter, created as a result of the activity.
33. The placing of A-boards outside or within the permitted area is not allowed.
Dublin Fire Brigade Fire Safety and Operational Requirements
Awnings (requiring Planning Permission)
Where awnings can open directly opposite each other on both sides of the street, a minimum separation distance of 3.5m is required between fully extended awnings to allow for Fire Brigade access.
Heating
Outdoor heating should consist of one of the following options:
Permanently piped gas heating in compliance with I.S. 820:2019.
Electric Heating (achieving a minimum IP Rating of IP55). Infra-red Heating (achieving a minimum IP Rating of IP55).
Outdoor heaters are to be located so that they do not block escape routes
The use of portable LPG heaters is not permitted.
Barriers/Windbreakers:
Barriers and windbreakers should not impede escape from the outdoor seating area. Where barriers or windbreakers extend for more than 18m in length, they are required to have clear openings achieving a width of 900mm to allow occupants to escape the outdoor seating area.
Pods/ Gazebos:
All outdoor heaters should comply with the relevant Irish Standards, should be installed by a competent person, and the installation should be certified, as outlined in the standard.
A Fire Safety Certificate Application will be required in respect of all dining pods.
Dublin Fire Brigade Fire Safety and Operational Requirements
A Fire Safety Certificate Application in addition to Planning Permission will be required in respect of gazebos that are permanently fixed in situ i.e. that are not considered a temporary structure.
and Fittings in Places of Assembly". https://www. housing.gov.ie/sites/default/files/migratedfiles/en/ Publications/Community/FireandEmergencyServices/ FileDownLoad%2C818%2Cen.pdf
Information on the Fire Safety Certificate process can be found at: https://www.dublincity.ie/business/dublin-firebrigade/fire-safety-prevention/fire-safety-businessesemployees-and-employers/fire-safety-certificateapplication
The applicant should obtain the services of Fire Consultant / Chartered Engineer, in order to make the Fire Safety Certificate Application on their behalf.
All furniture and fittings within pods and gazebos are to comply with the "Department of the Environment Code of Practice for Fire Safety of Furnishings and Fittings in Places of Assembly".
https://www.housing.gov.ie/sites/default/ files/migrated-files/en/Publications/ Community/FireandEmergencyServices/ FileDownLoad%2C818%2Cen.pdf
All wall, ceiling, floor linings and materials in Gazebos, are required to comply with Part B of the Building Regulations.
Where pods and gazebos are located in adjacent to roadways, a minimum clear separation distance of 3.5m is maintained at all times for Fire Brigade Access.
Tables and Chairs
Tables and chairs are to be located so that they do not:
* Block or impede the means of escape from the premises, or adjacent premises.
* Block or impede access to fire hydrants.
* Reduce the clear minimum width of the roadway to less than 3.5, which is required for Fire Brigade Access.
In addition to the above, all tables and chairs are to be constructed of non-combustible materials, or are to comply with the "Department of the Environment Code of Practice for Fire Safety of Furnishings
Parklets (requiring Planning Permission)
All parklets shall be:
Constructed throughout of materials of limited combustibility. Where parklets are constructed of timber, the timber is required to be impregnated and is to comply with Part B of the Building Regulations.
Located so that they are not directly in front of the exit door from the premises.
Not provided with LPG Heating
Enforced as non-smoking areas.
Located in such a manner that a minimum clear separation distance of 3.5m is maintained on the adjacent roadway, at all times, for Fire Brigade Access.
In addition to the above, a Fire Safety Certificate Application may be required in respect of some parklets. Information on the Fire Safety Certificate process can be found at https://www.dublincity.ie/business/dublin-firebrigade/fire-safety-prevention/fire-safety-businessesemployees-and-employers/fire-safety-certificateapplication
The applicant should obtain the services of a Fire Consultant/Chartered Engineer, in order to make the Fire Safety Certificate Application on their behalf.
Umbrellas:
No smoking shall be permitted under outdoor umbrellas
Where infra-red or electric heaters are located within, or directly in contact with an umbrella used for outdoor seating, the umbrella shall be certified for use with an outdoor heater.
Use of parking spaces/loading bays
If parking spaces/loading bays are used for outdoor seating, they should not:
temporary structure, a Fire Safety Certificate may be required. Information on the Fire Safety Certificate process can be found at
Block or impede access to fire hydrants.
Block or impede Fire Brigade Access on the roadway. A minimum clear width of 3.5m is required for Fire Brigade Access.
Extend beyond the line of the existing loading bay onto the roadway.
Block or impede the means of escape from the premises, or adjoining premises.
Use of Public Footpath
The use of the public footpath for outdoor street furniture, should not:
Block or impede the means of escape from the premises, or adjacent premises.
Block or impede access to fire hydrants.
Temporary structures attached to a premises
The definition of a temporary structure is a structure "of a temporary nature erected on a site for a period not exceeding 28 consecutive days or 60 days in any period of 12 months". If the structure cannot be defined as a https://www.dublincity.ie/business/dublin-firebrigade/fire-safety-prevention/fire-safety-businessesemployees-and-employers/fire-safety-certificateapplication
The applicant should retain the services of a Fire Consultant/Chartered Engineer, in order to make the Fire Safety Certificate Application
In addition the following general comments apply in respect of Fire Safety:
Fire safety in a premises is the responsibility of owners, occupiers and management of the premises, as outlined in the Fire Services Act 1981 and 2003 (as amended). The owners, occupiers and management of the premises should familiarise themselves of their responsibilities under the Fire Services Act.
The requirements outlined above may need to satisfy other regulations and/or legislation, and the applicant should seek further advice as necessary.
The Fire Authority is available to provide clarification and advice to applicants, if required, prior to making a licence application.
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By email only: email@example.com
Team 5 Constitutional and Mainland Affairs Bureau Central Government Offices 12/F, East Wing 2 Tim Mei Avenue, Tamar, Hong Kong
PathFinders Limited
Written Submission to Hong Kong SAR's Constitutional and Mainland Affairs Bureau for inclusion in its submission to China as part of China's Third Report to the United Nations Human Rights Council under its Universal Periodic Review Mechanism (UPR)
20 April 2018
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
t 5500 5486 f 2393 2422 e firstname.lastname@example.org w pathfinders.org.hk 11C Worldwide Centre 123 Tung Chau Street, Tai Kok Tsui Kowloon, Hong Kong
CONTENTS
1-2 Introduction and reference to HKSARG's Outline (page 2)
3 Executive Summary of Headline Topics and Headline Recommendations (page 3)
4
Detailed Topics and Recommendations:
Women & Mothers (pages 4-6)
Babies & Children (pages 7-8)
5. Close (Page 8)
PLEASE NOTE: Headings, abbreviations and recommendations are in bold.
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1. INTRODUCTION
1.1. PathFinders Limited (PF) works to ensure that the most vulnerable children born in Hong Kong and their migrant mothers are respected and protected. We believe that every child deserves a fair start in life;
1.2. From inception in 2007 to date, PF has helped over 5,300 babies, children and their migrant mothers, including over 2,200 newborns and toddlers, of whom over 160 were in such a vulnerable, abandoned and/or otherwise isolated state that they would, but for PF, have been at significant risk of abuse, neglect and/or trafficking;
1.3. The majority of the women we serve are current or former foreign domestic workers (FDWs) from Indonesia and the Philippines. Despite legal protections, once pregnant, these workers are typically fired unlawfully. They lose access to housing, healthcare and social welfare, and are left homeless, penniless and pregnant or with a newborn child. Utterly indigent, they exist in the margins at a level of precarity that is both surprising and shocking in a city state otherwise as advanced as Hong Kong;
1.4. The women are typically then criminalised as immigration overstayers despite the reason for their situation being their former employer's criminal and unlawful act of firing a pregnant woman;
1.5. These women and their Hong Kong-born children are some of the most vulnerable people in Hong Kong. They are hidden in plain sight and denied protection to such a degree that, unless they have applied for asylum, their existence is worse than that of asylum seekers and refugees; and
1.6. With the population of FDWs in HKSAR predicted to grow from the current 370,000 to 600,000 by 2047, PF's burgeoning caseload is only set to increase. We therefore ask that prompt measures are put in place to ameliorate and ideally entirely avoid the suffering and hardship these babies, children and women endure.
2. PF's response to the "Outline of the Third Report of the Hong Kong Special Administrative Region for the United Nations Human Rights Council Universal Periodic Review" (Outline)
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
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t 5500 5486 f 2393 2422 e firstname.lastname@example.org w pathfinders.org.hk 11C Worldwide Centre 123 Tung Chau Street, Tai Kok Tsui Kowloon, Hong Kong
2.1. In its Outline , the HKSAR Government ( HKSARG ) stated it would outline the " b) Background / 1 Framework and measures for the promotion and protection of human rights " and the " c) Achievements, challenges and initiatives. " PF implores the HKSARG to include the topics set out in this submission in its report to China.
3. EXECUTIVE SUMMARY
3.1. HEADLINE TOPICS
3.1.1. The protection of pregnant, migrant workers and their HKSAR-born children;
3.1.2. PF welcomes and applauds China's efforts to expand the rights of, and protections for, women and children since the last Universal Periodic Review (UPR) and now urges China to expand those efforts to women and children in HKSAR, and specifically to migrant workers and their HKSAR-born children;
3.1.3. This submission is a plea for employed, migrant women and their Hong Kong-born children to be granted humanitarian support and legal protections while in HKSAR, and for the employers of FDWs to be provided with clear guidelines as to how lawfully to manage the pregnancy and maternity of a FDW;
3.1.4. This submission is NOT a plea for HK residency status, but rather for a concerted effort to coordinate and communicate laws and policies, and to improve HKSARG FDW contracts to ensure that the welfare of all pregnant, employed women in HKSAR, and their babies, is respected, protected, prioritised and guaranteed - and to put in place appropriate measures well ahead of the number of FDWs increasing to 600,000 in 2047 as announced by HKSAR's Chief Secretary;
3.1.5. We invite these FDW workers to HKSAR. Whether you call them expats or migrant workers, they come to work and benefit our economy significantly. It is HKSARG's responsibility to ensure that FDWs, like every other working woman here, are treated decently when they themselves have their families. The same applies to their babies.
3.2. HEADLINE RECOMMENDATIONS
3.2.1. Fully uphold and protect the legitimate rights and interests of pregnant, migrant women and their unborn as well as born children in HKSAR;
3.2.2. Ensure that law, policy and government contracts are coordinated to provide practical solutions thereby enabling all stakeholders professionally and humanely to manage a migrant worker's pregnancy, maternity leave and maternity cover;
1 HKSARG's Outline, accessed on 19 April 2018: http://www.cmab.gov.hk/doc/en/documents/policy_responsibilities/the_rights_of_the_individuals/human/outline_UPR.pdf
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3.2.3. Make further efforts to secure and guarantee human protections and rights for everyone, regardless of immigration status;
3.2.4. Strengthen guarantees of social and economic rights of citizens, in particular in the areas of education, health care, social protection and labour by paying special attention to vulnerable groups and specifically ethnic minority women, pregnant migrant workers and their Hong Kong-born babies and children; and
3.2.5. Improve HKSAR's statutory maternity leave from 10 to 14 weeks thereby finally brininging HKSAR in line with China and other developed nations' maternity leave law and practice. 2
4. DETAILED TOPICS AND RECOMMENDATIONS:
WOMEN & MOTHERS: Inadequate protection and enforcement of FDWs' Pregnancy and Maternity Rights
4.1. HKSAR's current laws, template government FDW employment contracts and policies regarding maternity protections for FDWs fail to provide for what should happen when a FDW is pregnant to ensure a happy, healthy and well-managed pregnancy, birth and maternity leave. This absence is extraordinary because the vast majority of the 370,000 FDWs in HKSAR are women of childbearing age and Hong Kong has imported and employed FDWs for decades;
4.2. Like all other employed women in HKSAR, pregnant FDWs are protected by law from employment termination and discrimination on the grounds of pregnancy. Breach of those legal protections carries both criminal and civil law sanctions, albeit rarely enforced. FDWs are also eligible for statutory maternity leave;
4.3. However, the singular absence of policy and guidelines confirming how, practically, a happy, healthy pregnancy is to be successfully and lawfully managed by the employee, the employer and employment agents has multiple and devastating human consequences for both child and mother. This glaring omission is the largest single determinant for PF's existence;
4.4. PF is catching people who fall through HKSAR's otherwise strong social welfare safety nets. Despite vigorous flagging of the heartbreaking issues at discussions with HKSARG and through public consultations, PF's case numbers continue to grow and grow;
4.5. This is a solvable issue. The babies impacted, who are themselves voiceless, deserve, indeed are now literally screaming out, for help;
2 ILO Maternity and Paternity Leave at Work: Law and Practice Across the World: accessed 20 April 2018: see page 135 for comparison of length of statutory maternity leave: http://www.ilo.org/global/topics/equality-and-discrimination/maternity-protection/publications/maternity-paternity-at-work-2014/lang--en/i ndex.htm
123 Tung Chau Street, Tai Kok Tsui t 5500 5486 f 2393 2422 e firstname.lastname@example.org w pathfinders.org.hk 11C Worldwide Centre Kowloon, Hong Kong
4.6. In essence, PF has handled, and continues to have to handle, an unpopular, ever-expanding and ultimately solvable humanitarian crisis that has impacted over 5,300 babies, children and women - and we believe there are more in the shadows. The number is staggering and it will worsen: HKSARG is predicting that the majority-female FDW population will double by 2047 from around 370,000 today to 600,000;
4.7. Specifically, no law or policy addresses what is to happen to the mother or child during maternity leave or, crucially, the interplay between maternity leave and the so-called "live-in rule" which is HKSAR Government's requirement that FDWs live in their employer's residence;
4.8. Based on PF's experience, there exist two options that HKSARG deems acceptable, albeit not formally or publicly stated anywhere with regard to FDWs taking statutory maternity leave: (1) FDW to return to her home country for the duration of statutory maternity leave; or (2) FDW to remain in Hong Kong in which case she is expected to continue to live with the employer. Both options are significantly flawed and fail to prioritise the child's best interests;
4.9. Absent policy or guidelines, every single FDW who wants to return to her home country for maternity leave must each first individually negotiate that with her employer. Even where parties agree that the FDW can go to her home country, by law that leave can only start at the earliest of 4 weeks before the expected delivery date, i.e. when the worker is already 36 weeks' pregnant and is not only worried about the risk of flying but is also largely prohibited from flying under most airline policies;
4.10. Absent policy or guidelines, if the FDW stays in Hong Kong, she is currently expected to reside in the employer's home even during statutory maternity leave (and that despite it being called maternity 'leave'). No mother should be separated from her newborn like this. This is inhumane and unacceptable. The hundreds of employers who call PF asking for guidance do not know what to do - they want to be decent and humane but are scared of breaching the live-in requirement. Conversely, no employer contracts to have their female employee's newborn living with them and so the issue arises as to what to do with the baby - if the baby cannot stay at the employer's residence, and the mother cannot leave the employer's residence to nurse her baby every 1-2 hours, what is to become of the baby?
4.11. Many FDWs in this position remain in HKSAR and often end up giving birth alone or on the streets. Over the last year, there have been several media reports about newborn babies of current or former FDWs being dumped in bins or on the side of the street. 3
4.12. Former FDWs can extend their visas to remain in the HKSAR legally if they bring a legal claim against their former employer for unlawful dismissal or for paternity - over 80% of the biological fathers live in HKSAR. However, while pursuing their legal claims, the women are unable to work, have no access to welfare or housing and can only access medical care through public hospitals in an
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http://www.scmp.com/news/hong-kong/law-crime/article/2127947/hel
pe r-held-
over-abortio
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ng-kong-flat-fetus
-found accessed on 29 March 2018
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to
ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special
Consultative Status with the United Nations Economic and Social Council since August 2017.
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Kowloon, Hong Kong emergency (such as when in labour) and then only at penalty rates. This lack of early and timely maternal health care can be extremely risky, even fatal, to the unborn or newborn baby and the mother.
4.13. RECOMMENDATIONS: For Women & Mothers, PF recommends that the following 7 actions occur within the next 12 months:
4.13.1. HKSAR Government review, create (where currently absent), clarify, clearly communicate and enforce laws, practices and policies to enable lawful, safe and healthy pregnancies free from harmful treatment for FDWs and their unborn babies;
4.13.2. HKSAR Government introduce a concerted education programme about the maternity rights, obligations and protections for FDWs to all key stakeholders including FDWs, employers, employment agencies, Labour Department, Immigration Department, Health Authority, Police, Social Welfare Department, Prisons and relevant sending country consulates;
4.13.3. HKSAR Government relax the live-in rule during statutory maternity leave and specifically explain the expected interplay between and management of maternity leave and the so-called live-in rule;
4.13.4. For all female employees, including FDWs, HKSAR Government extend the statutory maternity leave period to 14 weeks in line with the laws of China and the ILO convention, and to allow for flexibility in the statutory maternity leave period especially for FDWs returning to their country of origin;
4.13.5. HKSAR Government devise detailed and practical policy guidelines stipulating how lawfully to manage the pregnancy and statutory maternity leave of FDWs. These should include detailed guidance about exceptions (if any) to the maternity leave entitlement, who should pay for flights to the FDWs' home country, time off for medical checks during pregnancy, the banking/payment arrangements for maternity leave, sick leave entitlement during pregnancy, information for employers who wish to hire temporary helpers/FDWs during their regular FDW's maternity leave, and set out the criminal sanctions for non-compliance;
4.13.6. HKSAR Government add a specific line to its standard FDW employment contracts stating that pregnant FDWs are entitled to pregnancy, maternity and protection from pregnancy discrimination; and
4.13.7. HKSAR Government departments and their agencies collect and publish relevant data to assess the magnitude of problems faced by pregnant FDWs, their babies, their employers and all other relevant stakeholders. This should include: A. The number of FDWs in Hong Kong who become pregnant; B. The number of FDWs who give birth in Hong Kong; C. The number of FDWs who managed to negotiate a satisfactory maternity leave with their employers in compliance with the live-in rule; D. The number of FDWs who returned to
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
t 5500 5486 f 2393 2422 e firstname.lastname@example.org w pathfinders.org.hk 11C Worldwide Centre 123 Tung Chau Street, Tai Kok Tsui Kowloon, Hong Kong
their home country to give birth and what their maternity leave arrangements were; E. The number of unlawful dismissals and forced "resignations" of FDWs due to pregnancy; and F. The number of criminal investigations, prosecutions and convictions for unlawful termination and discrimination due to pregnancy.
BABIES & CHILDREN: Children: born to current/former FDWs in HKSAR
4.14. Deprivation: Children born to FDWs are among the most deprived children in HKSAR. Once an unlawfully fired FDW mother has overstayed her visa, her child, when born, assumes the same legal status as his or her mother – they are undocumented. As a result, these babies do not have access to documentation, healthcare, basic immunisations or welfare support, and are highly vulnerable to malnutrition, disease, abuse, neglect, abandonment, human trafficking, systemic oppression and overt discrimination;
4.15. Nationality for Children: Every child has the right to acquire a nationality. Registration difficulties of children born to migrants in HKSAR directly impede their ability to obtain a nationality, since having a birth certificate is typically a prerequisite for acquiring nationality;
4.15.1 Undocumented children face difficult lives. They exist in the shadows. They are without access to public healthcare, welfare and education. They fall prey to the most dangerous and frightening elements of our society;
4.15.2. Too often, PF has seen cases where babies do not even have birth certificates because the cost of the birth certificate is either beyond the parents' means or the Birth Registry delays issuing the birth certificate for up to 9 months;
4.15.3. Registering the birth of a child is free in HKSAR. However, obtaining a copy of the birth certificate, which is necessary to register the child for the purposes of healthcare, education and to obtain identity and travel documentation (in other words the basic necessities of life) costs HK$140. If the parents fail to register the child within 42 days of birth, a copy costs HK$280 and if they fail to register within a year, the cost rises to HK$680 plus a further HK$140 search fee. There is no discretion for case officers to review individual cases and, where appropriate, waive the cost of issuing a birth certificate, not even for the ultra poor. At present, when necessary, PF is funding the cost of obtaining these copy birth certificates;
4.15.4. The only exceptions to the hardship these children suffer are: (1) when the biological father is Chinese or is a Hong Kong Permanent Resident, provided he can be found and is also willing to attest to his paternity at the Birth Registry; (2) when the parent has applied for a non-refoulement claim on behalf of the child, and the child is issued a recognizance paper and will then become entitled to humanitarian support from the Social Welfare Department via International Social Services Hong Kong. While these babies do have access to accommodation, food, medical care, transportation and education, this support is minimal and, for children, developmentally limiting with many of the babies PF helps exhibiting stress-related damage and developmental delays;
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
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pathfinders.org.hk
11C Worldwide Centre
123 Tung Chau Street, Tai Kok Tsui
Kowloon, Hong Kong
4.15.5. Child Asylum Seekers: at a practical level, we observe that the ' best interests of the child ' principle is not given adequate consideration when designing government policies that impact asylum-seeking children as demonstrated by: 1) Inadequate representation of the child in the non-refoulement claims process. In most cases the child is accompanied by the mother and/or father and the child's asylum claim is adjunct to that parent or family's claim without separate consideration. However, the status and concerns of the child and parent(s) are not always fully aligned. For example, the parent(s) might be unfit and incapable, for lifestyle and/or health reasons, of being the child's primary carers. The child itself might also have serious health and/or developmental problems requiring more advanced medical attention and treatment and therefore protection. Unfortunately, there exists currently no mechanism whereby the child's individual circumstances are investigated in order to establish whether the child might be at such serious risk that separate consideration of that child's claim for asylum is justified.
4.16. RECOMMENDATIONS:
For Babies and Children born to migrant workers in HKSAR, PF recommends that the following 3 actions occur within the next 12 months:
4.16.1. China and HKSAR to ensure equal protection at law, under policy and beyond to all children born in HKSAR regardless of their own or their parents’ immigration status;
4.16.2. HKSARG does review the reasons for delays in issuance of Birth Certificates, ensure time-bound issuance of Birth Certificates and significantly reduce (to photocopying cost levels) or
ideally waive the cost of obtaining copy Birth Registration Certificates; and
4.16.3. HKSARG and appropriate judicial and administrative bodies do consider children's claims for asylum separately and with immediate effect and do put in place free legal representation for
those children.
5. CLOSE
Thank you for considering PathFinders' submission and our 10 recommendations at paragraphs 4.13 and 4.16 above.
We look forward to reading HKSARG's UPR report and hope to see reference to pregnant FDWs and their Hong Kong-born children.
Kay McArdle, CEO, PathFinders Limited.
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
t 5500 5486 f 2393 2422 e firstname.lastname@example.org w pathfinders.org.hk 11C Worldwide Centre 123 Tung Chau Street, Tai Kok Tsui Kowloon, Hong Kong
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About PathFinders
PathFinders' mission is to ensure that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We believe that every child deserves a fair start in life. PathFinders Limited is an approved charitable institution incorporated in Hong Kong. It receives no government funding. PathFinders was founded in 2008 after rescuing two babies born in poverty to migrant women in Hong Kong. Since then, PathFinders has helped over 5,300 people of whom over 2,200 are babies and children born in Hong Kong.
More information: www.pathfinders.org.hk/public
PathFinders' Contacts:
CEO: Ms. Kay McArdle: email@example.com
Director of Social Work and Healthcare: Ms. Jessica Chow: firstname.lastname@example.org
Office: (+852) 5500 5486
PathFinders ensures that the most vulnerable children in Hong Kong, and their migrant mothers, are respected and protected. We work to ensure that every child has a fair start in life. PathFinders Limited is incorporated in Hong Kong CR No. 1289039 and is an approved charitable institution under s88 of the Inland Revenue Ordinance, file no. 91/10272. PathFinders is listed on WiseGiving and is an organisation in Special Consultative Status with the United Nations Economic and Social Council since August 2017.
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The Cultural Techniques of Time Axis Manipulation: On Friedrich Kittler's Conception of Media (2006)
Sybille Krämer
Nur was schaltbar ist, ist überhaupt. (Kittler 1993b, 182)
The notions of "technological determinism" and "hardware euphoria" (Kittler 1993b, 182) in Friedrich Kittler's media theory have already been examined and critically assessed many times. The following considerations, however, forge a new path in that they attempt to reconstruct an idea that can provide a new impetus for reflections on media that transcends specific schools of thought; they attempt to reconstruct an idea that is an integral part of contemporary media theory and can no longer be ignored. The task here is to reconstruct an ingenious discovery without, however, disputing the fundamental core of Kittler's notion of media. This breakthrough can be found in Kittler's linking of media with the technique of time axis manipulation.
1. Media beyond the register of signs
Friedrich Kittler's notion of media gains its contours in the context of his project on historical media studies (cf. Kittler 1997, 147-155). His interest in "media" can be located in their potential for profiling the breaks in the evolution of media and for furnishing a means with which to describe these breaks. For Kittler—a founding member of the Helmholtz Centre for Cultural Techniques at Humboldt University—"media " are first and foremost cultural techniques that allow one to select, store, and produce data and signals.
This approach may seem, at first glance, to be rather traditional, if not to say simplistic. And yet, at the same time, the innovative aspect of Kittler's approach is that it begins to shift the very accents of the familiar history. First, Kittler's reconfiguration affects our understanding of media history; Our traditional conception of media is based on the stereotype—which appears to be almost a belief—that media history is made up of three marked phases: the invention and dissemination of 1) the alphabet, 2) the printing press, and, finally, 3) the computer. Kittler's classification, by contrast, assigns these categories different contours. For Kittler the caesura that represents the invention of the alphabet and the cultural implementation of literacy finds its significant equivalent in the emergence and spread of analog, technological media such as film and gramophone. Analog media – and optical-technological media in particular (Kittler 2002) – mark the beginning of a development that ends with digitization and the computer. In the age of handwriting and of the printing press, all forms of writing are bound up in a symbolic universe – which in its most basic variant is that of everyday speech transcribed by notation. Technological media, by contrast, attempt
Translator's note: A key axiom of Kittler's "information-theoretical materialism" that literally translates as "Only that which is switchable is at all."
to select, store, and produce the physical realities themselves. Here, Kittler adopts the term "real" from Jacques Lacan's distinction between the symbolic and the real (see Kittler 1997, 130-147; Kittler 2002, 38). In the era of writing one could only write things down that already existed as elements in the symbolic universe – or in other words, the things that are inherent to the "nature" of a sign –, but after the technological analog media have broken writing's monopoly one can record the extra-symbolic – or that which is beyond the symbolic realm. In other words, one can record nature itself. Technological media allow one to select, store, and produce precisely the things that could not squeeze through the bottleneck of syntactical regimentation in that they are unique, contingent, and chaotic.
If the assumption is indeed correct that print media capture and produce the symbolic and technological media the real, then a medium can no longer be described using a terminology that is modeled on semiotic procedures. And yet, this is precisely what occurs as soon as one begins to pose questions concerning the relation between the medium and the message. Such questions are still bound up in the notions of the signifier and signified from the theoretical language of signs.
This is precisely the point where the media-historical and hermeneutic-critical aspects of Kittler's thoughts come together: his concept of media continually attempts to speak about the realm of literary studies in a way that avoids using distinctions such as "understanding," "interpretation," "meaning," "referent," or " representation," terms that are integral to the vocabulary of literary studies. The context of this theory lends further significance to Kittler's provocative view that everything that literary studies deals with is data processing, and it also reveals the subversive function of this view. Kittler detaches a discourse from the Western discourse of signs, in which everything that is a medium has already been formulated in the language of the symbolic. Kittler is thus concerned not with a media analysis that is diametrically opposed to meaning, but rather with a practice of writing about media in which concepts such as sense and sensibility are no longer relevant.
2. Two Obstacles
At least two major difficulties arise when one attempts to tackle Kittler's key mediatheoretical texts.
1) A first problem is his exclusion of the body as a medium and his omission of human perception –as long as one operates, that is, under the assumption that the body and perception have not been first infiltrated by technological media and that they cannot already be reconstructed as projections of apparatuses (further see Kittler, 2002). The inattention to the dimension of "those things that cannot be switched," or in other words to a corporeality that has not yet been transformed into a mechanical apparatus, should not be seen as an oversight but rather as an intentional act on Kittler's part. I will return later to
discuss the arguments that Kittler himself uses to justify this vanishing act. At this point, it suffices to note the unique condition that humans are excluded as a medium from a historical analysis of media.
2) A second difficulty that one faces is the canonical status of Claude Shannon's communications-theoretical writings in Kittler's texts (further see Kittler 2002, 42f.). Digitization and computer data processing are the focal point of his media-historical reconstructions, whereas in the computer sciences themselves Shannon's communication theory plays a rather marginal role. In the realm of cybernetics, by contrast, the theories of automation and of self-organization were central to shaping the perspective on development and on computer design – even more so now from the standpoint of neuronal networks. Even so, Shannon's ideas and his model of communication continue to be the classical subject of Kittler's texts and they serve as his systematic point of departure. One must, perhaps, question whether Shannon's notion of quantifying the capacities of data transmission channels can ever be anything more than of mere "archaeological" interest. Or, at the very least, it should strike one as curious that a discussion of the functions of media that is open to contemporaneous media technology, and that, in fact, first becomes important with this technology, takes its paradigmatic example from Shannon's model of channel transmission and from his conception of communication technology.
At this point, one could offer a simple explanation for the peculiarity that a projection of media studies does not include the human body and is, instead, anchored in Shannon's communication theory. This explanation can be found in the context of Kittler's methodological pre-decision and in his pointed statement that: Everything that can be described, can be represented in the terminology of technological processes. A literary scholar might reject such an approach as being too daring, and yet one should consider that a prerequisite for every attempt to describe something is to first define the distinctions with which one will work. The decision to adopt a technologically biased terminology – in contrast to a "hermeneutic" vocabulary, for example – is not necessarily wrong to begin with. Instead, one might grant this terminology a probation period since it attempts to describe something in a way that allows the surprising, the unexpected, and the new to emerge.
Returning for a moment to the "difficulties" in Kittler's texts. First, the fact that the human body is excluded as a medium (and that, subsequently, only that "which can be switched exists at all") makes sense if one is concerned with the processes by which, for example, the hand's movement become an object on the keyboard of the typewriter, or by which the mixed frequencies of the voice are inscribed onto vinyl structures. And with regard to the second
difficulty, that of signposting with Shannon's theories, one could argue: Is this not, in fact, a completely valid approach in the context of an attempt to reformulate a discourse based in literary studies as a technological discourse? In contrast to Alan Turing, who linked his Turing Machine to the (already mechanical) cultural technique of formal language, Shannon's concept can be seen as radical in that it considered familiar, everyday communication itself from the liminal perspective of a technological event that is completely indifferent to meaning. Regardless of whether this is the correct explanation, the other possibility, that of explaining Kittler's approach in terms of his techno-centered rhetoric, would be insufficient for explaining the uniqueness of his approach. This second explanation would also be insufficient because of the provocative question raised by this uncompromising drive for the technological, not only as the basis of description but also as the only legitimate language of description: What conception of the technological becomes operative with this approach?
3. Media technology: The reversal of units of time
This provocative question is precisely the one that leads us to the crux of Kittler's thought, and hence to the aspects of his method of thematizing media history that bring a new impetus to the approach. In order to answer this question, I will attempt to contextualize the technological within our traditional methods of managing time. Indeed, the explanation of the technological as a modality of time management is precisely the "main point." The most elementary experience in human existence – and this is relevant because man is, after all, a physical being – is the irreversibility of the flow of time. Technology provides a means for channeling this irreversibility. In media technology time itself becomes one of several variables that can be manipulated. In the age of writing and of the book, symbolic time, by being fixed in space with linear syntactical structures, becomes repeatable and, to some extent, also moveable. What is unique about the technological era (from the gramophone to the computer) is that these technologies allow one to store "real time" – in other words, those processes that cannot be fixed by syntactical structures and are thus not irreversible, but rather contingent, chaotic, and singular – and, at the same time, to process "real time" as a temporal event. Data processing becomes the process by which temporal order becomes moveable and reversible in the very experience of space (Kittler 1997, 130-146).
Kittler's media-historical investigation is thus located in the epochal transition from written to technological media: and this is a fundamental procedure for an archaeology of the present.
4. Discourse networks instead of discourses
With this move, Kittler links his approach to Michel Foucault's "Archaeology of Knowledge." His historical study of media becomes the heir of discourse analysis, but only in order to radically alter the inheritance. What Kittler adopts is Foucault's method of disregarding explication and understanding in favor of describing rules that organize the "actual discourses of an epoch" (Kittler 1990, 369). He also adopts Foucault's orientation on exteriority, which in Foucault's theories emerges in the doubling of discursive and non-discursive techniques, of discourses and institutions. Finally, he maintains the historical a priori: this is the system that magnetizes the influences of the eras, which Foucault terms the "archive," and which epitomize the systems of expression that can be documented.
This is also where the similarities between Foucault and Kittler end. For Kittler, Foucault's discourse analysis remains an elegant expression of the "old European epoch" that is subject to alphabetical writing. After all, the archive is virtually equivalent to a library, a collection site for monumental typescript. And yet, this form of typescript is by no means the only possible discourse network (Kittler, ibid.). As soon as the monopoly is broken that writing and the book hold on processes of storing and processing, and as soon as other types of discourse networks emerge with technological, analog media, then an archaeology of present forms of knowledge can no longer be practiced by discourse analysis but must rather be taken over by technological media analysis. In this regard, it is quite logical that Foucault's historical analyses end at 1850. While the monopoly of writing had already been broken prior to this threshold, the monopoly of discourse networks as a whole still persisted; after all, if writing and the book are discourse networks, then the reverse also holds true: every discourse network must be either writing or a book. Kittler's media-historical analyses begin where Foucault's end. His historical approach transforms discourse analysis into the reflex and symptom of a specific – and since ended – media epoch. With this move, Kittler takes up technological media as the focal point around which everything is arranged that can even be registered as an analyzable fact after Foucault.
The crux of this story of the metamorphosis of the discourse-analytical approach is the technological transformation of the notion of media itself: media are no longer directly linked to signs, to communication, or, for that matter, even to information, but rather to data, in other words to the material "carriers" of information. The operations of media structure the terrain of data processing: they select, store, and produce signals.
In order to avoid a misunderstanding about the relation between data and media, even if Kittler's own terminology does not always avoid this confusion, it is necessary to note that there are not always data, on the one hand, and then, on the other hand, the media that are concerned with the data. It is far more the case that media are the production sites of data. These production sites are discourse systems, the networks of techniques and institutions that preprocess what will even be considered data in a given epoch.
Turning now to those discourse networks that are attributed to the monopoly of alphabetic writing: the "grammatological" era of chirographic and typographic cultural techniques of data processing.
5. The monopoly of the alphabet
What is writing, and what is alphabetical writing? Kittler provides a simple, and perhaps far too simple, answer to this question. According to McLuhan's theory that the content of a medium is always another medium, the content of writing is speech. Of course, Kittler's most recent works have shown that at its origins, the Greek alphabet transcribed speech, music, and numbers. And yet the decisive fact remains that the potency of alphabetical writing is rooted in the categories of oral and written language. Kittler's attention to this fact must be seen as more than a mere attempt to reproduce the belief in the secondary, derivative, and supplementary "nature" of writing in contradistinction to spoken language that is prevalent throughout the realm of literary studies. In his classification of alphabetical writing and oral speech, Kittler attempts to emphasize a fact that is crucial for his concept of media, namely that everything that occurs in the context of the discourse networks that precede technological media is subject to symbolic order. Written media select, store, and produce precisely the data that have passed through the narrow chasm of the chain of signification, or in Kittler's terminology, those that are given in the form of a code. And this is precisely where the radical distinction of technological media becomes apparent: these media produce data that no longer refer to the symbolic world but rather to the material universe, or in other words, to that which cannot be encoded and fixed in writing in the symbolic network. The content of written media – and precisely this is Kittler's purpose in emphasizing the transcription of speech in writing – is the symbolic.
Associating media with the symbolic is not exactly a unique approach. After all, isn't the interpretation of media as the material carriers of events with signs commonplace in media studies? And yet, Kittler does not tread onto this common ground, for media are not inevitably linked to the symbolic but only exclusively when pre-technological, literary media are involved. Kittler's use of the symbolic is indebted to Jacques Lacan's terminology. For Lacan, a symbol is not something that stands for an extra-symbolic entity, but rather is primarily something that can be substituted for another symbol. The symbolic is based in exchanging places (Kittler 1997, 143). With regard to the place that they occupy, symbols can be replaced by other symbols. The prerequisites to these processes of shifting and substitution are, of course, blanks: a chain of signification can only be constructed and reconstructed with varying combinations if there is a distinction between empty and filled spaces. The order of the symbolic is, thus, primarily a discrete structure.
Translator's note: See the essay "Number and Numeral" in this volume.
This feature of the symbolic, for its part, also predestines the symbolic to becoming an instrument for dividing time into discrete units. The connection between the symbolic and time is what is at stake here: by referring to the symbolic, written media adhere to a specific temporal order. "Texts and musical scores" become means of "storing time," and yet they do more than just this. Writing is historically the first technique for manipulating time"(Kittler 1993b, 182).
How is one to understand this statement by Kittler?
Time flow is continuous. The "simultaneous presence of full and empty spaces" (ibid.) does not exist in the flow of time, and thus the order of time's flow is, traditionally, irreversible. Kittler considers alphabetical writing, however, as the technique of "assigning a space to each element in the temporal series of the chain of speech" (ibid.) together with the invention of blanks. This approach creates the necessary precondition for a method that Friedrich Kittler terms "time axis manipulation." It is nearly impossible to shift speech into a different type of order, i.e. without attending to the syntax of speaking from the end forwards. And yet this is precisely what writing makes possible. By shifting the chronological order of time to the parallel order of space—and spaces are things that can principally be restructured—written media become elementary forms that not allow temporal order to be stored but also to be manipulated and reversed.
By contextualizing the potential opened up by media in this process of time axis manipulation, Kittler offers a means for understanding two anomalies in his media-historical descriptions.
1) A first peculiarity is his consequent exclusion of oral language and of the (unrecorded) voice as media. Even the voice that has not yet been reduced to a written text has a means of preserving the things that, in the flow of speech, would become subject to the irreversible streams of time. This strategy is the simple possibility for repetition. Yet Kittler excludes precisely this means of preservation and with it the voice, which is the original organ of repetition. Drawing on Hegel, who characterized the existence of tone as "a disappearance of being in the act of being" (Hegel, quoted in Kittler 1999, 36), he notes laconically that "spoken language will thus be disregarded from the outset." The only techniques that can be considered data processing are those that use a spatial means to create possibilities of ordering the things differently that are etched into this spatial order. This notion carries specific consequences for Kittler's concept of storage. Storing is not merely a means of preserving but is also intrinsically connected to spatial order. Wherever something is stored, a temporal process must be materialized as a spatial structure. Creating spatiality becomes the primary operation by which the two remaining functions of data processing – transporting and processing – become possible at all.
2) The other anomaly concerns Kittler's revision of the media-historical meaning of the printing press. In contrast to traditional references to the epochal break in the Gutenberg
Galaxy that can be found in almost all media-historical analyses, Kittler regards the true, significant break as being not so much the invention of the printing press, but rather the transition from the scroll to the codex. A scroll has to be unrolled with two hands when it is read. It is thereby almost impossible to reach foreword or to go back, or, in other words, to deviate from the sequential order of the material. The codex in which one can leaf through the text first transforms the temporal spaces of the material into individuated and traceable spaces in the text (Kittler, 1993b). To use technical jargon, one could say that this invention transforms the sections of the text into "addresses." This invention secures the accessibility of writing that must no longer adhere to the strict linear sequence of the successive material and precisely that can deviate from the sequential order. The printed book subsequently turns the addressability of writing into a stereotype, in that every copy of an edition – beginning with its pagination – has the same structure. The same holds true for the technological reproduction of illustrations that is also connected to printing.
The significance of alphabetical writing for the flow of speech is analogous to that of the codex, and later the printed book, for the continuously, progressing scroll. Through these media, an act that transpires in time becomes divisible into discrete units and becomes thereby – or tends to become – moveable and reversible.
6. Technological Media
Textual media record some things while leaving others unwritten. What is noted is analogous to the repeatable chain of signification in speech; what eludes transcription, is equivalent to a singular sound – just as musical notation records intervals but not the tone of the instruments (Kittler 1993b, 185).
Technological media are the very media that make the data-producing processes of storage and manipulation accessible, processes that were previously unwritten and thereby fell through the "grid of the symbolic" (Kittler 1999, 11). Textual media transform the linguistic-symbolic into an operable code; technological media, by contrast, transform the contingency-based, material, real itself into a code that can be manipulated (further see Kittler 2002, 37). This type of manipulation creates the possibility of reversing temporally-sequenced events. Around the turn of the century, analog media first began to practice this technique: the gramophone as the device that records acoustic and film as the apparatus that transcribes visual events. Kittler uses an example from music to describe how one is to understand the distinction between the textual and technological time axis manipulation. Musical notation records intervals and makes them reversible – such as in the case of Bach's Fugue, in which the interval sequence B-A-C-H becomes in reverse H-C-A-B (with
counterpoint). This transposition does not affect the tonal characteristics of the individual sounds, and their individual sequencing remains intact even in Bach's reversal. Then Edison begins to experiment with his phonographs and discovers the possibility of playing musical numbers in reverse, which affects precisely the actual tonal characteristics of the individual sounds. The consequence of this procedure is that when a piece of music is actually reversed, the listener only hears the characteristic tonal color of the instrument as a whole after the fact, or in other words, when the individual tone of the reversed piece comes to the end.
The significant point here is that analog, technological media are the first to record events that transpire outside of the audible and visible realms. The real itself is saved by the phonograph, by photography, and by cinematography, it is transmitted by radio and television, and it is – at least in part – also even produced.
This is only possible in situations where the singular, material events are transformed into numerical values with the aid of mathematical processes. The significant point in the calculability of the contingent is that the "purely unrepeatable" (Kittler 1993b, 196) become visible as the sum of decimals, and thereby also becomes repeatable. The Fourier Method makes this possible. Mathematician Jean-Baptiste Joseph de Fourier recognized that periodic operations can be dissected and then reconstructed by trying out a variety of sine functions. The formalism of the Fourier Transformation that is subsequently developed also accomplishes this task even in the case of nonperiodic functions. The linguistic phoneme and the musical interval, which are the fundamental elements for Kittler and which found the network of alphabetic order, are subjugated to this mathematization of a code in the second transition. This mathematical code is the frequency scale in which the spectrum of sounds is dissected. The Fourier Method accomplishes for the material realm of signals what the Greek alphabet achieved for the symbolic realm of language.
And yet, in contrast to the domain of language with its structures of signification that inherently rely on repetition, what is at stake since Fourier is the calculability of the irregular itself (Kittler 1993b, 177). The unforeseeable thereby becomes foreseeable; the real, in the Lacanian sense, is transformed into a code that can be manipulated. One can now arrange previously unorganized elements into numerical columns. The quantification and codification of chaotic sequences is the reason that Shannon continues to be relevant in Kittler's thought; Shannon's communications technology attempts to process contingency, and to do so in a two-fold respect. First, Shannon's b mnng of information functions only in situations where something can either occur or not occur, in situations where presence and absence, yes and no, are possible. In the Universe of Laplace, which is ruled by material necessity, information would not exist (Kittler 1993b, 164). Stochastic characteristics form the foundation for Shannon's notion of a quantity of information. Second, and in this context more significantly, Shannon's communication theorem on chance noise hold the things accountable that accompany the transmission of information. The trick of communications technicians can be found in their attempt to deal with noise-laden sounds as if there were two different sources: a source of the signals and of the noise – whose emissions can then be added up. In lieu of this mathematically-equivalent approach to signals and noise, together with planned and chance events, Kittler proposes an additional interpretation that goes back to Shannon: the relation between signals and noise can also be interpreted as that between a coded signal and its deciphering by enemy intelligence. This perspective would also level the differences between information and noise, between signals and pure noise, in a way that makes it possible to interpret noises, as well as noise itself, as a type of code (Kittler, 1993b, 165). "Computers can also operate, and indeed can only begin to operate, with chance data as if they were elements in a finite code, in other words elements that can be predicted and recalled." (Kittler 1989, 110). This is the point where the discourse analysis whose legacy Kittler takes up, turns into crypto-analysis (Kittler 1997, 165f.). This type of analysis, in contrast to that of Foucault's theories, no longer refers to the realm of the symbolic but rather operates in the material world of the real. This perspective transforms nature into an encoded text, albeit a text that no longer needs to be interpreted but must rather be decoded with machines.
A peculiar metamorphosis emerges in this projection of the real as enigma cryptography, which – when brought to a technological stand – is almost a rehabilitation of the hermeneutic project of "nature as a text." The notion of dealing with chance data in this technological manner as if they were elements in a code continually resounds throughout Kittler's thought. This notion emerges in the context of Kittler's vision of erasing the difference between the scientific and literary studies with the terminology of data processing; or it appears in Kittler's continually expressed interest in analyzing the unconscious – which is also accomplished with cryptographic analysis. This notion also explains Kittler's fascination with Alan Turing's, Claude Shannon's and Norbert Wiener's work, who with their crypto-analytic, communications-theoretical, and communicationstechnological ambitions achieve precisely what will prove to be the computer's unique accomplishment: making chance sequences calculable.
What role do digitalized media technology play for Kittler? Analog media record with the aid of an electric, sensory data streams and – within limits – they also produce. However, they also lack a universal standard that would allow these media to be connected and translated reciprocally. The binary numerical system of digital technology provides such a standard. The constant functions – which analog media transform into equally constant data streams – are now accessible to continually discrete and digital production by means of scanning points in time that are equally spaced. The binary system provides a universal key that allows one not only to translate each of the numerous formats of image, sound, and textual media reciprocally, but also, and at the same time, to traverse the symbolic-technological boundaries of the epoch of alphabetic writing. Alphabetic and numerical representations, functions and arguments, numerical values and operators, commands,
data and addresses are equally and reciprocally translatable. The computer connects all of these media, in that it incorporates their input and output data into a mathematical procedure of digitalized signal processing with microsecond rhythms (Kittler 1993a, 187).
What Kittler thereby accomplishes was already described with enviable precision in Turing's Universal Machine: regardless of whether a sign on a strip of paper is present or absent, the next step in production is regulated, "which amounts to a type of writing: it depends on this reading whether the machine keeps the sign or erases it, or, vice versa, whether it keeps a blank space or replaces it with a sign, and so on and so forth. That's all. But no computer that has been built or will be built can do more" (Kittler 1999, 18). Kittler's idea of reconstructing the history of media as the history of discourse networks reaches its idealized realization in the operation of the computer – provided that one does not overlook one crucial fact that is central for Kittler. While it is true that the computer writes and reads, it does so in a way that is invisible to the writing and reading human. The operative logic of technological media is comprised precisely in structuring streams of data in such a way as to pass under the radar of the „time of human perception" (Kittler, 1993a, 180). The so-called „real time reactions" can only emerge as a consequence of skipping over human perception. Real time analysis does not exist. Every step in computer processing takes time, albeit a span of time that is less than the smallest unit of time that can still be captured by the human senses (Kittler, 1993b, 201).
7. Beyond the senses, but also the observer
The uncoupling of information and communication brought about by technological media is at the same time the uncoupling of media and the human senses, at least as far as it concerns the working rhythm of technological media. Paradigmatic of this fact is the discovery that is comes with electricity and that rings in the era of the analog media: the discovery of the formless flow of electromagnetic waves as an immaterial channel for information transmission (Kittler, 1993a, 188). This technique of passing under, or over, the radar of the perceptible also continues in the practice of time axis manipulation that becomes possible with technological media. While syntax-bound media such as musical notation carry out time axis manipulation in lower frequencies ranges, in other words, in realms that still accessible to acoustic and optical perception (Kittler 1993b, 191). technological media diverge into the higher frequencies ranges, "where our hearing and sight disappear" (Kittler 1993b, 192). The interfacing of a data processing system represents an image, voice, or text only as a "surface effect." These remain mere "eyewash," whereas "inside the computers themselves everything becomes a number: quantity without image, sound, or voice" (Kittler 1999, 1).
What Kittler characterizes here as a media-induced disappearance from perceptibility continues in numerous vanishing acts: the body disappears, as does art, history, but, most of all, man himself disappears. Man is no longer the referent in communications techniques, and is most certainly not its subject: the progress in media development cannot be characterized as intentional, nor as purposeful, but rather as "escalatory and strategic" (Kittler 1989, 115) in that techniques of data processing surpass and outperform each other reciprocally by means of their own dynamic (Kittler 2002, 22f.). The human senses are taken over by the technological media.
The uncoupling of human sensibility from media raises more questions than it can answer. Doesn't the systematic abstraction of the dimension of sensory perception collide with the precise terminological structure that Kittler attempts to put into the place of interpretative termini? In his media-historical writings Kittler uses terms such as "signal," "information," "noise," "data processing," "calculability," and, in particular, "time," and "time axis manipulation." Can these terms be used in a meaningful way without the reference to perceptibility? Does "time" even exist without the connection to observation and/or experience, also, and particularly when, one is concerned not with subjectively-experienced but rather with objectively measured time?
One can continue to inquire, for example, into Kittler's presumption that the interface regarding human senses reaches its historical fruition as a result of procedures within the computer that are stripped of their quality. Doesn't this process lead to an unauthorized proliferation of the function and use of artifacts? The technological thrives on its trick of separating operational methods from use. We can cook meals, drive cars, calculate with zero, etc., without needing to understand which chemical, electromechanical, and numerical-theoretical relations inform these processes. We can use technology without needing to understand how, and especially, why it works. In practice, Kittler also refuses to make this distinction. His sincere attention to the technological can be found in his engagement with things that he can do himself – at least in the form of a "miniaturized model" (quoted in Hartmann). Nonetheless: the performance of the technological in quotidian use draws on the ability to make distinctions between use and mention. Kittler's leap from methods of operation that are far removed from the sensory to a process of making something useable that marginalizes the sensory, thus falls short.
To continue with our questions, we are confronted with the paradoxical situation that handwriting and printing can be read for hundreds of years, while discs can only be read for a few years due to changes in operating systems. Can Kittler's theory of skipping over human perception using the logic of the escalating innovations in data processing even conceptualize the decisive problem faced by a society supported by computers—a problem that is rooted in the escalating disappearance of possibilities for deciphering information threatened by Alzheimer's? Or does Kittler's vision of transforming an analysis of the real in the form of crypto-analysis already provide the answer to this question? But here Kittler provides yet another argument for disregarding the sensory: our knowledge of the senses is bound to a language that our senses have always treated as a projection-surface of media technology (Kittler 2002, 30). However, determining something is not
necessarily equal to marginalizing it. Our senses are stimulated by media, which does not lead to the reciprocal case that media can be effectively described without reference to the senses.
The assumption presents itself that a theoretical-strategic consideration outweighs Kittler's factual arguments. Kittler develops his concept of media in connection with, but especially in latent opposition, to the father of contemporary media debates, Marshall McLuhan (Kittler 2002, 24f.) For McLuhan, technology is an extension of the human body: media technology of the human senses, electric media of the central nervous system, and finally, electronic media of human consciousness. Kittler avoids this method of anthropomorphic genealogy of media in the spirit of the human senses – and quite rightly so.
Problematic presuppositions only produce noteworthy results on occasion, but this is indeed the case with McLuhan in two respects. First, there is McLuhan's theory that innovations in media cause a re-stratification in the system and hierarchy of human senses so that tactility acquires a new significance, as opposed to the traditional predilection for the optical sense. When Kittler criticizes this idea – as far as here the condition of television technology that is historically-reduced to "scanning" is universalized metaphorically as "touch" – he is indeed correct with regard to McLuhan's interpretation of television as a tactile medium, but he does an injustice to its theoretical potential, which also includes the idea of a changed status of the tactile under the conditions of electronic media. Here, one need only think about the possibilities for conducting tactile explorations with models that are brought about by virtual realities. In addition to this idea, McLuhan arrives at another interesting description of the stages of media innovation as a result of his hypothesis on extensions. For McLuhan, there is a continuing cycle of self-extension and selfamputation of man, from causing numbness to one-sided irritation by the media, throughout each new phase of technologization. In other words, McLuhan's theories reflect the aspect of the escalating drive of media to surpass that is so crucial to Kittler in a way that does not exclude but that rather incorporates man and the organization of his senses into this self-dynamism without thereby needing to fossilize man as the intentional subject of this wave of technologization.
Finally, one last implied problem is brought about by Kittler's elimination of the sensory. Excluding the dimension of perceptibility also leaves no room for the relativity of the observer as a methodical principle for making categorical distinctions. Kittler's terminology of the technological shifts to the function of a language – lacking in alternatives – whose advantage is meant to be that it can describe the actual relations in our world precisely. But how can one justify this privileged role of the technology-infused terminology? I suspect that Kittler transfers an operative principle of formal writing to his non-formal, media-historical descriptions. The operative trait of formal writing is found in being not only a medium of representation but also an instrument that works with the represented, and indeed to a certain extent also produces the represented. What this means becomes apparent intuitively in written calculation. The decimal positioning system represents numbers, it
operates with them, and finally – one need only think of the zero – also first produces numbers with its system. A characteristic of symbolic machines (Krämer 1988) is that they are also actually what they describe, just as for example each Turing Machine transforms itself into the exact symbolic machine that is inscribed onto the strip of paper.
Does Kittler make the operative truth absolute, that aims to transform "truth" into "technological precision" and that applies exclusively to formal, calculable systems? (Krämer 1991) And does he thereby arrive at a technological ontology, in which only that which can be switched exists at all? This "ontology of switchable existences" has two interesting implications that Kittler also intends.
a. Because with digital technology everything that can be switched is essentially invisible to the human senses, nothing that is significant can even be perceived. Phenomenology, therefore, no longer exists (and therefore neither does art, when taken to be "aesthesis"). Every type of phenomenology loses its foundation. Kittler's critique of hermeneutic sense-orientation encompasses phenomenological strategies. Both of these are not only falsified but they also become historically obsolete with the development of technological media.
b. That which can be switched, or in others words can be comprehended in discrete units, can be manipulated in relation to its time axis. If only that which can be switched exists at all, then also only that, which can be manipulated with time axis. Time is no longer a universal form of our perception or experience, but rather it becomes a universal form of technological accessibility.
8. What, then, are media and what is their history for Friedrich Kittler? A Caveat.
(1) What are Media? Media are practices that use strategies of spatialization to enable one to manipulate the order of things that progress in time. Such means of time axis manipulation are only possible when the things that occupy a place in time and space are not only seen as singular events but as reproducible data. Such production sites of data are "discourse networks." Discourse networks are media in the broader sense: they form networks of technological and institutional elements.
(2) What is a history of media? An answer to this question can be given from two perspectives. a) From the perspective of spatialization, what is at stake is the differentiation of the functions of saving, transmitting, and processing data, and finally, their 'reunification' in the computer. b) From the perspective of time axis transformation, the crucial aspect is the sequential order of written media that attempt to change the "symbolic time" and the technological media that endeavor to change "real time." These perspectives reveal remarkable breaks with tradition. The decisive break within the era of writing is not the invention of the book, but far more the transition from the scroll to the codex that can be leafed through. The computer is not the first, significant innovation in media-technology, but rather – after writing – the analog, technological media. While writing makes the things that are already given as a symbolic structure operable as a syntactical linear stream, technological media record, encode and produce the material real itself which is laden with contingency.
(3)What is the purpose of media studies? The strategic significance of historical media studies is found in continuing or even replacing the "language-theoretical turn" with a "media-technological turn," "discourse analysis" with an analysis of "discourse networks," and in providing an "archeology of the present." Precisely because "data" serve as the fundamental concept and at the same time the foundational element of the symbolic as well as the material real, media studies operates beyond the gulf between the natural and social sciences.
(4) Are media a priori functioning universals? Media are not anthropological universals but rather techniques that emerge with the invention of writing and that end with the conglomeration of media that are wired by the computer. To the extent that they are subject to the irreversibility of time without the possibility of reversal, human bodies can no longer be seen as media. Media history thus has a beginning and an end. What takes place in the middle is not in a story of redemption but rather one of substitution in which something ultimately disappears never to be recalled. The machine substitutes man as the referent of communication; corporality disappears, and with it, each and every trace with which the body is involved. This teleology is not a specific aim of someone, neither is it a result of human intention, but can rather be ascribed to the selfdynamic of escalating inter-reference between technological media. Is the view of thematizing history as a story of the disappearance of man and his body the intellectual property of a media-technological version of eschatology?
(5) Does this concept of media imply an ontology? Communication can be traced back to data processing and can be analyzed as communication technology; information and noise can be handled as mathematical-equivalent data. Technological media thus transform contingent events into repeatable data. A piece of data thereby becomes the smallest unit that underlies the realm of the symbolic as well as of the real and in which everything that belongs to our world can be dissected. The code of this atomization of
data is the binary code: in this manner, digitalization becomes the modern form of a universal language.
(6) A form of digitalized existentialism? The culminating points within the tradition of literary studies – such as, for example, the rationalized project of universal characteristics (characteristica universalis) that speak to the eye, or the modern conception of nature as a book with mathematical letters, or the structuralist notion of the world as text – are transformed into the absurd with the binary code that cannot be expressed by humans, and with modern data processing as a textile that cannot be read by human eyes. This "absurdity" can be understood in the sense of Kierkegaard as a paradox of the historical, which stands in stark opposition to human logic and sensibility, or in the sense of Camus, who counter-intuitively lets the world remain mute to human questions. Does a type of "digitalized existentialism" speak out from Kittler's texts?
References
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ORIGINAL RESEARCH
Impact of the characteristics of data sets on incremental learning
Patrick Marques Ciarelli, Elias Oliveira, Evandro O. T. Salles
1. Department of Industrial Technology, Universidade Federal do Espírito Santo, Brazil. 2. Department of Information Science, Universidade Federal do Espírito Santo, Brazil. 3. Department of Electrical Engineering, Universidade Federal do Espírito Santo, Brazil.
Correspondence: Patrick Marques Ciarelli. Address: Department of Industrial Technology, Universidade Federal do Espírito Santo, Brazil. Email: firstname.lastname@example.org
Received: June 30, 2013
Accepted: September 8, 2013 Online Published: September 29, 2013
DOI: 10.5430/air.v2n4p63
URL: http://dx.doi.org/10.5430/air.v2n4p63
Abstract
Little attention has been paid to identifying the characteristics of a data set that provide favorable conditions for the task of incremental learning. In this work, several metrics were used to characterize data sets and identify the characteristics that may influence the trade-off between stability and plasticity. Three metrics are proposed for the evaluation of stability, plasticity and the trade-off between them in incremental techniques. The experiments were carried out using four incremental neural networks, and the results showed that the shape of the class boundary and spatial distribution of the samples have a great influence on this trade-off.
Key words
Incremental learning, Stability, Plasticity, Complexity measures
1 Introduction
Several incremental neural networks have been proposed in the literature [1-7] to treat processes for which attaining a sufficient number of representative examples may not be feasible, either because the environment changes over time or because the rate at which examples become available is too slow [8] .
In such situations, it is desirable to have a flexible model that can be upgraded without its performance on old data being affected. The training process should be such that it can learn new knowledge without forgetting the knowledge acquired previously. Such a model must be capable of maintaining the trade-off between two properties [9] :
Stability: the model must be able to retain knowledge without a catastrophic forgetting failure, but it is not guaranteed that the model will be able to accommodate new knowledge;
Plasticity: the model must be able to continuously learn new knowledge, without any guarantee that previously acquired knowledge will be preserved.
We argue that incremental learning techniques are amongst the most appropriate approaches to accommodating the conflicting requirements of stability and plasticity because such techniques make it possible to continue to learn new
information while maintaining previously acquired knowledge. The difficulty is in maintaining acquired knowledge and learning new information because these objectives may be in conflict, and how each technique addresses this conflict indicates whether it is more inclined to provide greater stability or greater plasticity.
Little attention has been paid to analyzing the characteristics of data sets that provide favorable conditions for the task of incremental learning. Identifying such characteristics would help to determine the tractability of these data sets by systems based on incremental learning and to identify the best approach to addressing them.
In this work, several complexity measures employed to characterize data sets [10, 11] were used to analyze the characteristics of data sets in terms of the trade-off between stability and plasticity. We propose new metrics for evaluation of the stability, plasticity and the trade-off between stability and plasticity associated with incremental learning techniques.
The objectives of this study were mainly to investigate the impact of several data sets on the stability and plasticity of some incremental one-step learning techniques and to identify the characteristics of these data sets that influence the trade-off between stability and plasticity. The techniques evaluated in this work were incremental supervised neural networks designed for classification tasks, and their architectures adapt to each individual training sample. The techniques used for evaluation do not require reprocessing of any previous training sample to continue to learn new information. Although neural networks are the focus of this work, other classification techniques may be evaluated using the same procedure described in this study. It is also important to note that it is not an objective of this work to compare the performance of different classifiers but rather to use them to identify the effects of the characteristics of the data sets.
In our experiments, we note that data sets with simpler and well-defined class boundaries and attributes with high discriminative power tend to yield a better trade-off between stability and plasticity. Conversely, the incremental learning task becomes more complicated when class boundaries are complex and not well defined.
Lastly, an experiment was carried out to predict the trade-off between stability and plasticity of each incremental neural network evaluated using the characteristics of data sets. The results of this experiment show that it is possible to have a notion of the behavior of these classifiers without having to run them over a data set.
This paper is organized as follows. In Section 2, we describe the metrics employed to characterize the data sets and the metrics proposed for the evaluation of stability, plasticity and the trade-off between them. In Section 3, we describe our experiments and their results. We lastly present our conclusions in Section 4.
2 Measures
This section is divided into two parts. In the first subsection, we describe the complexity measures used to quantify the characteristics of the data sets that we used. In the second subsection, we describe the metrics proposed to evaluate the stability and plasticity of the classifiers for each of these data sets.
The measures of stability and plasticity help in the analysis of the behavior of a classifier when tested under conditions that are quite extreme with respect to the order of presentation of training samples, i.e., when it is presented only one class at a time. The use of complexity measures helps in the identification of some relevant characteristics in data sets, as nonlinearity, the discriminative power of attributes and the complexity of the class boundary. With the characteristics of data sets and the results obtained using a classifier for these same data sets, it is possible to draw a cause-and-effect profile and determine which characteristics of the data sets have greater impacts on the results obtained by a classifier.
2.1 Complexity measures
We have selected ten measures to describe the important aspects of each data set, such as statistical information, a feature's discriminating power, overlap regions and class shapes. These measures, called complexity measures, are described
below. We used in the experiments the Orriols-Puig et al algorithm [10] for computing the complexity measures (http://dcol.sourceforge.net/).
The maximum Fisher's discriminant ratio (F1) computes the maximum discriminative power of each attribute. It compares the difference between the means of the classes and the sum of the variances of the classes. A possible generalization for C classes, which also considers all feature dimensions, can be stated as follows [10] :
where
where C is the number of classes, d is the number of input attributes, fda is the discriminant ratio of the ath attribute and pci is the proportion of examples of class ci. The value of a,ci is the median value of attribute a for class ci, and 2 a,ci is the variance of attribute a for class ci. A slightly different version of this measure is presented in [12] .
A high value for Fisher's discriminant ratio indicates that at least one of the attributes allows the separation of instances of different classes with partitions that are parallel to an axis of the feature space [10] .
The volume of overlap region (F2) computes the length of the overlap range for each feature within two classes (when there are only two classes), normalized by the length of the total range in which all values of both classes are distributed. The volume of the overlap region is the product of the normalized lengths of the overlapping ranges for all features [12] . As a generalization for C classes, C > 2, this measure is the sum of the absolute values for all pairs of classes [10-12] as described by the following equation:
where
where d is the number of input attributes, fa is the ath feature, ci is the ith class, (ci,cj) goes through all pairs of classes and max(fa, ci) and min(fa, ci) are the maximum and minimum values, respectively, of feature fa for class ci.
A low value of this measure means that the attributes can discriminate between examples of different classes [10]
.
The maximum (individual) feature efficiency (F3) is the maximum fraction of instances that can be separated by a particular feature [12] . For each pair of classes, the ratio of the number of instances separated by a particular feature to the number of instances of the pair of classes is computed for each feature. Then, the maximum discriminative ratio is taken as measure F3 [10] .
The collective feature efficiency (F4) is determined in the same way as F3, except that this measure considers the discriminative power of all attributes. The collective discriminative power is computed in the following manner [10] . First, the most discriminative attribute, which is the attribute that can separate the maximum number of instances of one class, is computed. Next, all instances that can be discriminated are removed from the data set, and the next most discriminative attribute (from the remaining examples) is selected. This procedure is repeated until all of the examples have been discriminated or all of the attributes in the feature space have been analyzed. Lastly, the measure returns the proportion of instances that have been discriminated.
The fraction of points on the class boundary (N1) provides an estimate of the length of the class boundary. This method builds a Minimum Spanning Tree (MST) that connects all instances in the data set to their nearest neighbors and then counts the number of instances connected to different classes by the MST. These instances are considered to be close to the class boundary. This number is divided by the total number of instances in the data set, and the result is the value of N1 [12, 13] .
High values of this measure indicate that the majority of the instances are close to the class boundary and that a classifier may have more difficulty defining the class boundary accurately [10] .
The ratio of average intra/inter class nearest neighbor (NN) distance (N2) is a measure that computes the Euclidean distance from each instance to its nearest neighbor within or outside the class. The average of all the distances to the nearest intra-class neighbors and the average of all the distances to the nearest inter-class neighbors are then calculated. The ratio of these two values is the value of the measure N2.
Smaller values of this measure suggest more discriminant data, whereas higher values indicate that the examples of the same class are more dispersed [10] .
The leave-one-out error rate of the NN classifier (N3) indicates how close the examples of different classes are and returns the leave-one-out error rate of the NN classifier. Low values of this measure indicate that there is a large gap in the class boundary [10, 13] .
The nonlinearity of the NN classifier (N4) provides a measure of the nonlinearity of a data set. For a given data set, a test set is created by linear interpolation with random coefficients between pairs of randomly selected instances of the same class. The measure then returns the test error of the NN classifier trained with the original data set. This measure is sensitive to the smoothness of the classifier boundary and the overlap on the convex hull of the classes [10] .
The fraction of maximum covering spheres (T1) counts the number of hyperspheres needed to cover each class, where each hypersphere is centered on one instance and grows to its maximum size before it reaches an instance of another class. Hyperspheres that are completely inside other hyperspheres are removed. The metric T1 is the number of hyperspheres divided by the number of instances in the data set. This metric provides a description of the shapes of the classes [10, 11] .
The average number of points per dimension (T2) describes the density of the spatial distribution of instances, computed as the average number of instances per dimension (the number of attributes). This measure is a rough indicator of the sparseness of the data set [10, 11] .
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2.2 Measures of stability and plasticity
Three measures are proposed to evaluate the degrees of stability, plasticity and the trade-off between them. Before introducing these measures, however, we will explain how to use the procedures to address these measures.
When using the three measures, it is necessary to divide each data set into C subsets, where C is the number of classes of the data set, Ni, i = 1, …,C, is the number of instances in each subset, and each subset contains only instances of a unique class. This division of the data sets avoids similar patterns arising in different subsets, which would make it difficult to perceive when a classifier has learned new information or has simply used prior knowledge.
After the division of the data set as previously described, the classifier is initially trained with the first subset S1 and tested with the same subset. The number of instances correctly classified in subset S1 is then counted, and the value is denoted by A1,1, where the first index indicates the number of subsets used for training and the second index is the subset used for the test. Next, the subsets Si, i = 2, …, C-1, are also used for training; the classifier is tested with the subset SC, and the number of instances correctly classified is referred as BC-1,C, where the meaning of the indexes is the same as above. Later, the subset SC is also used for training, the value of AC,1 is computed for S1 and BC,C is obtained for SC.
This procedure is repeated C times so that all of the subsets are used once as the first and once as the last subset of training. That is, this procedure for training and testing is repeated until the values of A1,i, AC,i, BC-1,i and BC,i, i = 1, …,C, have all been calculated.
Figure 1 illustrates the calculation of values A and B for a data set with two classes (C = 2). First, the data set is divided into 2 subsets, where the subset S1 is the first subset used for training. After the training with S1, this same subset is used for testing, and the number of instances correctly classified is counted. This number is the value of A1,1. Then, the subset S2 is used for testing, and the number of instances correctly classified is counted. This number is the value of B1,2. Next, the subset S2 is also used for training (that is, the classifier is trained with S1 and S2, respectively) and both subsets S1 and S2 are utilized for testing. The number of instances correctly classified of S1 and S2 are identified by the values A2,1 and B2,2, respectively. After these calculations, the order of the training subsets is reversed. Now, S2 is the first subset used for training and S1 is the second subset. With this change, the values of A1,2 and B1,1 are obtained when the classifier is trained only with S2, and A2,2 and B2,1 are calculated when the two subsets are used for training. The values of A are obtained for the first training subset, and the values of B are obtained for the last training subset. The number of sets is equal to number of classes.
The value of A1,i is the number of instances that the classifier learns of subset Si, and AC,i is the number of instances recognized of subset Si after the data of the C classes have been used for training. On the other hand, BC-1,i is the number of instances of subset Si that the classifier recognizes before it is trained with subset Si, and BC,i is the number of instances recognized after training with Si. The measures presented below are computed for the following two cases: the average amount of information retained for each class after learning the other classes and the average amount of information learned for each class after the other classes have been learned.
Retention (R) measures the degree of stability of a classifier, i.e., the ability of a classifier to retain old knowledge when a new piece of information is presented.
The Retention value R of a classifier with respect to a data set is calculated using Eq. (3):
where
The value of the Retention metric is computed as the mean of the ratios between the number of recognized instances of each class before and after presenting all of the classes to the classifier. The value of R ranges from 0 to 100%. The larger the value of R is, the more able the classifier is to retain old knowledge.
Innovation (I) measures the degree of plasticity of a classifier, i.e., the ability of a classifier to learn new knowledge.
The Innovation value I is calculated using Eq. (4):
where
The value of the Innovation metric is calculated as the mean of the ratios between the number of recognized instances of each class before and after presenting this class for the classifier. The value of I ranges from 0 to 100%. The larger the value of I is, the more able the classifier is to learn new knowledge.
The Harmonic Mean between retention and innovation (H) evaluates the trade-off between the stability and plasticity of a classifier for a data set. This value is calculated using Eq. (5):
The larger the value of H is, the better able the classifier is to perform a trade-off between stability and plasticity. The value of H ranges from 0 to 100%.
A result when R = I suggests that the incremental method is not sensitive to the order of presentation of the classes, although this does not imply that it is insensitive to the order of the data presentation.
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3 Experiments
The experiments were carried out on the data sets shown in Table 1. Their characteristics are the number of classes (C), the number of attributes (NA), the number of instances (NI), and the complexity measures described in Section 2. These data sets were obtained from the UCI Machine Learning Database Repository (http://archive.ics.uci.edu/ml/) and from the ELENA European Project (http://www.dice.ucl.ac.be/neural-nets/Research/Projects/ELENA/).
Table 1. Data sets: characteristics and complexity measures.
The incremental neural networks used for evaluation were the Evolving Fuzzy Neural Network (EFuNN) [14, 15] , the Simple Evolving Connectionist System (SECoS) [16] , the Incremental Probabilistic Neural Network (IPNN) [17] and the Fuzzy ARTMAP [18] . These neural networks were chosen because they have similar features: they have a constructive architecture that grows as needed, they process one training sample at a time, they can continually learn over their whole existence, and they do not reprocess any previous training sample.
The EFuNN uses fuzzy logic for classification. Fuzzification is performed for each sample, and the result is compared to the pattern stored within its architecture. More fuzzy logic membership functions result in a greater architecture size. This neural network has been used for various applications, and it is generally considered to be a neural network that can be trained quickly and adapts well to new data [19] .
The SECoS is an incremental version of the Multi-Layer Perceptron (MLP) (SECoS is also called eMLP (evolving MLP) [15] ) that has a hidden layer. Each neuron added in the hidden layer represents the training sample that caused its inclusion. SECoS can also be viewed as a version of EFuNN in which fuzzy logic is not used for classification.
Table 2. Results achieved for the Retention, Innovation and Harmonic Mean metrics.
The IPNN is an incremental version of the Probabilistic Neural Network [20] . In the training phase of this network, training samples are only stored in its architecture, and the transfer function of its neurons is Gaussian. The advantages of the IPNN algorithm include its easy implementation, quick training and the fact that the order in which samples are presented for training does not affect its learning. However, it has the disadvantage of having many neurons in its architecture, thus requiring a large amount of memory and classification time.
The Fuzzy ARTMAP is based on aspects of how the brain processes information. The ARTMAP has two layers of prototype units in a supervised learning structure. The first unit takes the input instances and the second unit takes the labels associated with the instances. During the learning, some adjustments are made in the units to make the correct classification. A similar structure is used in the Fuzzy ARTMAP, but the units use fuzzy logic.
The experiments were performed using the following methodology. Initially, each attribute f of each data set in the interval [a, b] was mapped to [0, 1] using the following equation:
where a and b are the smallest and largest values of f , respectively, c = 0 and d = 1. The information in Table 1 was obtained after this procedure.
Then, each algorithm was calibrated so that half of each data set was used for training and the other half was used for validation. After calibration, each data set was divided into C subsets, where C is the number of classes in the data set, and the methodology presented in Section 2 was used to calculate the Retention, Innovation and Harmonic Mean metrics.
These procedures were performed 20 times with random partitions. The average results for each data set and classifier are shown in Table 2.
In Table 2, high values for the Harmonic Mean were obtained for some data sets, such as Balance, Iris, Car, CNAE-9, Segmentation, Texture and Wine. The high values of the Harmonic Mean indicate that the classifiers provide a good trade-off between stability and plasticity, and the corresponding data sets present characteristics that make them suitable for incremental learning tasks. On the other hand, other data sets yielded low values of the Harmonic Mean.
In analyzing the techniques, it was observed that the techniques SECoS, EFuNN and Fuzzy ARTMAP behaved similarly. These three algorithms have a great ability to learn new information, as indicated by the Innovation metric (many results above 90%). The Retention metric, however, has low values for some of the data sets. These results demonstrate that these techniques focus more on learning new information than on retaining old knowledge. This adaptation to new data is slow, so the rate of deterioration of old knowledge is reduced.
The results of the experiments show that unlike the other classifiers evaluated, IPNN is not influenced by the order of data presentation. Thus, its values of Retention and Innovation for each data set are equal. Although its values for Innovation are slightly smaller than those of the other methods, its values for Retention are higher. IPNN thus has a greater capacity to store old information and a weaker ability to learn new information. For tasks for which there is continuous change in the features, the Fuzzy ARTMAP, SECoS and EFuNN classifiers have a greater capacity than IPNN to adapt to these changes. On the other hand, IPNN has a more evenly balanced trade-off between retaining and learning information.
We performed two-tailed paired t-tests at the 1% significance level to compare the Retention and Innovation results for each algorithm. The results of the t-tests indicated that the Innovation (plasticity) of Fuzzy ARTMAP, SECoS and EFuNN were significantly greater than their respective Retention values (stability), confirming the results of the previous analysis. As expected, there were no significant differences between the Innovation and Retention values for the IPNN algorithm, because they were equal to each other.
An important issue is to identify before-hand which data set characteristics may affect the trade-off between stability and plasticity, thus predicting the behavior that a data set may produce in an incremental learning procedure. To determine these characteristics, the Kendall correlation coefficient [21] between each measure and result was computed, together with a test of the hypothesis of no correlation at a significance level of 1%, to verify whether the correlation between the parameters was significant. The complexity measures N1 and N3 were found to be significantly correlated with the results of IPNN, SECoS and EFuNN. The smaller the values of these measures were, the larger the value of the Harmonic Mean was. The measure N4, which measures the degree of nonlinearity, was also significantly correlated with the results of IPNN and SECoS. High values of this measure suggest that the instances of different classes are very similar, that the class boundary is not well defined and that the separation between classes is nonlinear. That is, the spatial location of the instances has a great effect on the performance of these algorithms. For the Fuzzy ARTMAP and IPNN, the influence of the measure T2 was noted. The smaller the value of T2 is, the larger the value of the Harmonic Mean is. Higher values of T2 indicate a greater concentration of instances in a region, and if these instances have a complex boundary of separation, many instances may be misclassified. Another relevant measure for Fuzzy ARTMAP is N4. Classes with nonlinear boundaries are harder to classify correctly, although N4 was not significantly correlated.
The complexity measures F1 and F2 were found to be correlated (but not significantly) with the results. The larger the value of F1 is and the smaller the value of F2 is, the larger the value of the Harmonic Mean is. That is, a high discriminative power of the attributes (F1) and a low distribution overlap of different classes (F2) are important in addressing the problem of the trade-off between stability and plasticity. However, we observed high correlations between the values of F1 (a negative correlation) and F2 (a positive correlation) with the values of N4. This is evidence that the same conditions affect all three of these measures. However, the measure N4 better reflects this effect on the Harmonic Mean, as shown by the results of the statistical tests.
The results of this analysis explain the high values for Harmonic Mean obtained for at least three techniques for the data sets Iris, Segmentation and Texture, which had high values of F1 and low values of N4. For these three data sets, the F1 measures were greater than 10. Other data sets with low values of N4, such as CNAE-9 and Wine, also had high values for the Harmonic Mean. However, data sets with high values for N1, N3 and N4, such as Abalone, Gaussian_2D and Yeast, had low Harmonic Mean values. Eventually, one or more techniques behave differently than expected, and one of the reasons is related to the characteristics of the algorithms. For example, EFuNN is the only one of the algorithms considered that did not achieve a high value for the CNAE-9 data set. Nonetheless, CNAE-9 has a huge amount of zeros in its attributes (more than 90%), and as noted by Watts [19] , this has an adverse effect on the performance of this technique.
It would be interesting to use the characteristics of data sets to predict the relationship between stability and plasticity. To assess this possibility, we carried out a final experiment to predict the Harmonic Mean values of the data sets using the leave-one-out procedure and determined the value of the mean absolute error (MAE) for each algorithm.
In this experiment, each data set was considered to be an instance, its attributes were considered to be the complexity measures, and each instance was labeled with the Harmonic Mean. All measures were mapped to the interval [-1, 1] using Equation 4, where c = -1 and d = 1. Each instance was then normalized by the infinity norm. The Harmonic Mean values were also mapped to the interval [-1, 1]. Next, two methods were used to predict the Harmonic Mean for each technique: a method based on Ordinary Least Squares (OLS) regression, which considers a linear relationship among the attributes, and an approach based on the use of a Back-Propagation Neural Network (BPNN). The results reported are the mean values for 20 BPNN runs. The predicted values were scaled to the interval [0, 100].
Table 3. Mean Absolute Error in the Prediction of Harmonic Mean.
Table 4. Prediction of Harmonic Mean in percentage.
The MAE results for each technique are presented in Table 3, and the results for some data sets are presented in Table 4. Although OLS is a simpler method than BPNN, the two yielded similar mean results. The greatest differences were for the neural networks SECoS and ARTMAP. The results obtained for SECoS and IPNN were more accurate than those for EFuNN and ARTMAP. The Kendall correlation coefficient values indicate that the SECoS and IPNN results were more strongly correlated with the complexity measures than the other techniques, meaning that it is easier to predict their behavior.
From the results obtained for these techniques, particularly SECoS and IPNN, it is possible to estimate the trade-off between stability and plasticity, making it possible to avoid running these incremental approaches over the data sets. Furthermore, this analysis approach aids in the identification of the most promising incremental approach for tackling a specific problem because the behavior of a technique can be estimated in advance for the data set at hand.
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4 Conclusions
In this study, three metrics are proposed for measuring stability, plasticity, and the trade-off between the two in incremental supervised learning. A series of experiments was carried out to assess the degrees of stability and plasticity of some incremental supervised neural networks designed for classification tasks. In general, the incremental neural networks presented high degrees of plasticity for all data sets. Some data sets had high values for stability and the trade-off between stability and plasticity, and other data sets had low values. IPNN was an exception in that it was not affected by the order of the data presentation; it exhibited a higher capacity to retain old knowledge, although it had a lower capacity to learn new information.
The analysis of the results indicated that the spatial distribution of the samples in a data set is an important characteristic influencing the trade-off between stability and plasticity. Data sets with attributes that have high discriminative power and well-defined class boundaries tend to provide a better trade-off between stability and plasticity. On the other hand, when the instances of different classes are more similar and class boundaries are not well defined, the task of incremental learning is more complex.
Lastly, an experiment was carried out to predict the trade-off between stability and plasticity of each incremental neural network evaluated in this study. In this experiment, reasonable predictions were obtained and showed that it was possible to have an idea of the behavior of classifiers without having to run them on a data set. This type of analysis may be useful in identifying the most promising incremental approach for tackling a specific problem with respect to the trade-off between plasticity and stability. Another advantage of this analysis approach is that it may be used to build ensembles of techniques that can be weighted with respect to their ability to achieve a trade-off between plasticity and stability. This approach can be used to obtain an estimate of the ensemble weights without having to perform long and complex processes for calibration of the weights, as presented in [22] .
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Nivolumab for Head and Neck Cancer
An HCP Tool From the Immuno-Oncology Essentials Initiative
Nivolumab (Opdivo ® ) is an anti-programmed death receptor-1 (PD-1) monoclonal antibody checkpoint inhibitor. PD-1 is a negative regulator of T-cell activation and proliferation, meaning it "turns the immune response off," essentially acting as a brake. This type of inhibition is necessary to prevent excessive immune reaction and autoimmunity. For this reason, PD-1 and other regulators acting in this manner are known as immune checkpoints. We now understand that some tumors can exploit the PD-1 pathway, enabling them to evade an immune response. Nivolumab selectively binds to PD-1, thus blocking the inhibitory pathway, allowing the immune response to occur.
Nivolumab is FDA approved as monotherapy for patients with recurrent metastatic squamous cell carcinoma of the head and neck (R/M HNSCC) with disease progression on or after a platinum-based therapy.
This document is part of an overall HCP toolkit intended to assist providers in optimizing management of R/M HNSCC.
SIDE EFFECTS AND THEIR MANAGEMENT
Because nivolumab is an immunotherapy that works by enhancing the patient's immune system, most adverse reactions associated with nivolumab are related to overactivity of the patient's immune system (ie, immunerelated adverse events [irAEs]). Various organ systems (often more than one) or tissues may be affected.
* Keys to toxicity management:
» » Prompt intervention
» » Proactive assessment for early signs/symptoms of irAEs
» » irAEs are typically managed with dose interruption and selective use of corticosteroids
» » Nivolumab will likely be held or discontinued depending on the severity and/or persistence of the irAE
» » In rare instances, toxicity may be steroid refractory, and additional immunosuppressive agents (infliximab, mycophenolate mofetil, cyclophosphamide, etc) may be necessary
» » Referral to organ specialist should be considered, given that unique testing and management strategies may be required
* irAEs associated with nivolumab treatment can be categorized as those that are most common, less common but serious, and others that are easily overlooked
* Table 1 lists these irAEs and the corresponding Care Step Pathways in Appendix 1. Other adverse events associated with nivolumab are shown in Appendix 2
Table 1. Care Step Pathways for the management of immune-related AEs associated with nivolumab monotherapy.
| irAE category | Examples |
|---|---|
| Most common | Skin toxicities (pruritus, rash, etc) Gastrointestinal toxicity: Diarrhea/colitis Thyroiditis Hepatic toxicities |
| Less common but serious | Additional endocrinopathies - -Hypophysitis (pituitary) - -Adrenal insufficiency - -Diabetes Pneumonitis |
| Easily overlooked | Arthralgia/arthritis Mucositis/xerostomia Nephritis |
CLINICAL PEARLS
* It is important to monitor laboratory values at the start of treatment, periodically during treatment, and as indicated clinically. Laboratory values commonly monitored include: CBC w/ differential, creatinine, alkaline phosphatase, AST/ALT, bilirubin (direct/total), sodium, potassium, calcium, magnesium, thyroid function, and glucose. Please see the individual irAE CSPs for more detail about specific laboratory monitoring
* Adverse events associated with nivolumab in HNSCC are generally similar to those seen with melanoma, with the exception of greater incidences of facial edema and new or worsening hypothyroidism. In addition, it may be more difficult to diagnose xerostomia secondary to nivolumab in a patient who has had prior radiation to the head/neck
* Nivolumab-related irAEs may occur at any time, including after treatment completion or discontinuation
* Patients sometimes experience signs/symptoms that they think are due to "flu" or a cold, but that actually represent an irAE or an infusion reaction
* Patients with metastatic head/neck cancer who get radiation to the lungs can develop radiation pneumonitis. Radiation pneumonitis and immunotherapy pneumonitis will look the same on imaging. Treatment for both types of pneumonitis is corticosteroids.
* Endocrinopathies often present with vague symptoms (fatigue, headache, and/or depression) that can easily be overlooked or initially misdiagnosed. Hypervigilance and follow-up is important on the part of both HCPs and patients
* Endocrinopathies tend to occur somewhat more commonly with nivolumab or other PD-1 inhibitor therapies than with ipilimumab monotherapy
* Unlike other irAEs, endocrinopathies usually do not resolve and may require lifelong hormone replacement therapy
* IrAEs have different time courses. New irAEs may become apparent upon tapering of corticosteroids used to treat an earlier onset irAE, since the new irAE can be suppressed or masked by immunosuppressive therapy. Therefore, during the taper period, patients should be advised to be on the lookout for early signs of new irAEs as well as recurrence of the original irAE that was being treated
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CLINICAL PEARLS Continued
* Patients with head/neck cancer often have radiation induced hypothyroidism and are on hormone replacement medication. It is important to monitor these patients closely for thyroiditis reactions
* HCPs should encourage patients to carry information about their nivolumab regimen with them at all times. This might be the nivolumab-specific wallet card, or at least emergency phone numbers and a list of side effects associated with the regimen. You may suggest that they paperclip the wallet and insurance cards together so information about their regimen will be shared whenever they show the insurance card
* Advise patients to take pictures of any skin changes for documentation
QUESTIONS & ANSWERS
Q. How long will patients stay on nivolumab?
A. The prescribing information indicates until disease progression or unacceptable toxicity. The interpretation of these criteria varies from institution to institution and from provider to provider.
Q. Please comment about the management of stomatitis/mucositis in this population.
A. Oral mucositis and/or complaints of dry mouth appear to be more frequent with programmed cell death receptor 1 (PD-1) receptor checkpoint inhibitors than with cytotoxic T-lymphocyteassociated antigen 4 (CTLA-4) blockade. Oral candidiasis remains an important consideration in the differential diagnosis, particularly if a patient has been on oral corticosteroids for management of other irAEs. In some patients, oral corticosteroid rinses and lidocaine have been effective.
It is also important to remember that head-and-neck cancer patients' tumors can start inside the mouth. So, if mucositis or stomatitis does develop, the HCP should monitor to make sure it is not a recurrence (eg, non-healing ulcers even with treatment such as rinses).
Q. Are there standard dosage reductions for irAEs associated with nivolumab?
A. There are no dosage reductions for irAEs associated with nivolumab. The dose is either held until the irAE resolves sufficiently (typically to Grade 0 or Grade 1) or, if the irAE is severe enough, nivolumab is discontinued permanently.
Q. I have experience using nivolumab for lung cancer. Is the safety profile different in those patients vs HNSCC patients?
A. Generally, the safety profile of nivolumab is similar across tumor types. However, the context may be different—patients with other tumor types may have differing comorbidities or underlying organ dysfunction. For example, lung cancer patients may have underlying lung disease that will exacerbate shortness of breath associated with pneumonitis.
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QUESTIONS & ANSWERS
Continued
Q. How do I counsel my patients about immunizations?
A. That's a logical question, given that the checkpoint inhibitors alter the immune response. Advise your patients not to receive live vaccines (eg, measles, mumps, and rubella and the varicella vaccine) because they have not been evaluated in this setting. The use of attenuated vaccines has been and continues to be evaluated. Counsel patients to discuss all immunizations with the oncology team prior to administration so the benefits and risks can be weighed on an individual basis. For example, SHINGRIX®, approved in 2017, is an attenuated (non-live) varicella vaccine; its use can be discussed with the oncology team if a recommendation is being made for the patient to receive the injection series. Annual influenza vaccination with the inactivated influenza vaccine is recommended. The nasal spray flu vaccine is a live attenuated influenza vaccine and should not be administered to patients treated with immune checkpoint inhibitors.
PATIENT RESOURCES
Financial Assistance
BMS Access Support
1 (800) 861-0048 http://www.bmsaccesssupport.bmscustomerconnect.com/patient
Additional Information Resources
Support for People with Oral and Head and Neck Cancer http://www.spohnc.org/
American Cancer Society Resource Section https://www.cancer.org/cancer/oral-cavity-and-oropharyngeal-cancer.html
ADDITIONAL RESOURCES
* Boutros C, Tarhini A, Routier E, et al. Safety profiles of anti-CTLA-4 and anti-PD-1 antibodies alone and in combination. Nat Rev Clin Oncol. 2016;13:473-486.
* Brahmer JR, Lacchetti C, Schneider BJ, et al. Management of immune-related adverse events in patients treated with immune checkpoint inhibitor therapy: American Society of Clinical Oncology clinical practice guideline. J Clin Oncol. 2018;36:1-60.
* Dadu R, Zobniw C, Diab A. Managing adverse events with immune checkpoint agents. Cancer J. 2016;22:121-129.
* Ferris RL, Blumenschein G Jr, Fayette J, et al. Nivolumab for recurrent squamous-cell carcinoma of the head and neck. N Engl J Med. 2016;375:1856-1867.
* Friedman CF, Proverbs-Singh TA, Postow MA. Treatment of the immune-related adverse effects of immune checkpoint inhibitors: a review. JAMA Oncol. 2016;2:1346-1353.
* Kumar V, Chaudhary N, Garg M, Floudas CS, Soni P, Chandra AB. Current diagnosis and management of immune related adverse events (irAEs) induced by immune checkpoint inhibitor therapy. Front Pharmacol. 2017;8:49. doi: 10.3389/fphar.2017.00049
* McGettigan S, Rubin KM. Managing adverse events with PD-1 inhibitor therapy of advanced melanoma: consensus statements from the faculty of the Melanoma Nursing Initiative. Clin J Oncol Nurs. 2017;21(Suppl):42-51.
* Naidoo J, Page DB, Li BT, et al. Toxicities of the anti-PD-1 and anti-PD-L1 immune checkpoint inhibitor antibodies. Ann Oncol. 2015;26:2375-2391.
* National Comprehensive Cancer Network. Clinical Practice Guidelines in Oncology: Management of Immunotherapy-Related Toxicities. Version 1.2018. Fort Washington, PA: National Comprehensive Cancer Network; 2018.
* Nishijima TF, Shachar SS, Nyrop KA, Muss HB. Safety and tolerability of PD-1/PD-L1 inhibitors compared with chemotherapy in patients with advanced cancer: a meta-analysis. Oncologist. 2017;22:470-479.
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ADDITIONAL RESOURCES
Continued
* Opdivo ® [package insert]. Princeton, NJ: Bristol-Myers Squibb Company; 2017. Available at: http://packageinserts.bms.com/pi/pi_opdivo.pdf
* Opdivo patient alert card (wallet card) and other resources. http://www.opdivo.com/servlet/servlet.FileDownload?file=00Pi000000nywPmEAI
* Opdivo Patient Monitoring Checklist Available at: http://www.opdivohcp.com/servlet/servlet FileDownload?file=00Pi000000ijs1lEAA
* Puzanov I, Diab A, Abdallah K, et al; Society for Immunotherapy of Cancer Toxicity Management Working Group. Managing toxicities associated with immune checkpoint inhibitors: consensus recommendations from the Society for Immunotherapy of Cancer (SITC) Toxicity Management Working Group. J Immunother Cancer. 2017; 5: 95. doi: 10.1186/s40425-017-0300-z
* Spain L, Diem S, Larkin J. Management of toxicities of immune checkpoint inhibitors. Cancer Treat Rev. 2016;44:51-60.
* Villadolid J, Amin A. Immune checkpoint inhibitors in clinical practice: update on management of immune-related toxicities. Transl Lung Cancer Res. 2015;4:560-577.
* Weber JS, Postow M, Lao CD, Schadendorf D. Management of adverse events following treatment with anti-programmed death-1 agents. Oncologist. 2016;21:1230-1240.
Click here for downloadable action plans to customize for your patients
APPENDIX 1
The 12 Care Step Pathways (CSPs) referenced in this Appendix are housed in the CSP section of the AIMWithImmunotherapy.com IO Essentials website. These CSP are currently universally applicable (i.e., they don't differ across tumor types).
Please click the link below to access the CSPs, which can also be printed from that section of the site.
http://aimwithimmunotherapy.org/care-step-pathways/
APPENDIX 2
Management of other AEs associated with nivolumab monotherapy.
| Adverse event | Common symptoms | Common management/anticipatory guidance |
|---|---|---|
| Anorexia | Decreased appetite | • Monitor weight; query patient about appetite/eating habits; advise dietary modification if necessary (should improve with time) • Anticipate standard dose holds/discontinuations* • Consider referral to nutrition services for counseling on best food choices to avoid excessive weight loss |
| Constipation/ abdominal pain | Infrequent stools/ difficulty stooling, abdominal pain | • Consider other causes, such as opioid-induced constipation • Increase fluid, fiber; use laxatives with caution; suggest stool softeners and increased physical activity • Consider appropriate testing to evaluate bowel obstruction • Anticipate standard dose holds/discontinuations* for Grade 3 and Grade 4 (constipation with manual evacuation indicated, severe abdominal pain, or life-threatening consequences) |
| Embryo-fetal toxicity | –– | • Advise patients to tell their HCPs immediately if they or their partners suspect they are pregnant while taking therapy • Advise patient to tell HCP immediately if they or their partner suspect they are pregnant while taking therapy |
| Encephalitis | Headache, fever, tiredness, confusion, memory problems, sleepiness, hallucinations, seizures, stiff neck | • New-onset, moderate-to-severe symptoms: rule out infectious or other causes • Counsel neurologist, obtain brain MRI, and lumbar puncture • Anticipate standard dose-holds and discontinuations* |
| Fatigue | Feeling tired; lack of energy | • Query patients regarding energy level; evaluate possible contributory factors, including infection, disease progression, and hematological and metabolic abnormalities; standard supportive care • Anticipate standard dose holds/discontinuations* • Fatigue that interferes with ADLs is concerning and should be evaluated for underlying causes, such as possible endocrinopathy |
| Headache | Head pain | • Need to rule out brain metastases, encephalitis, or hypophysitis; otherwise, standard supportive care (should improve with time) • Headache occurring in conjunction with fatigue could be indicative of hypophysitis; obtain MRI of brain with pituitary slices/pituitary protocol to confirm/rule out. • Anticipate standard dose holds/discontinuations* |
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Management of other AEs associated with nivolumab monotherapy.
(Continued)
| Adverse event | Common symptoms | Common management/anticipatory guidance |
|---|---|---|
| Infusion reaction | Chills/shaking, back pain, itching, flushing, difficulty breathing, hypotension, fever | • For mild/moderate (Grade 1-2) reactions: interrupt or slow rate of infusion; monitor to recovery • For severe/life-threatening (Grade 3-4) reactions: discontinue nivolumab; manage anaphylaxis via institutional protocol; monitor. Premedication with an antipyretic and antihistamine may be considered for future doses |
| Insomnia | Difficulty falling or staying asleep | • Counsel patients on good sleep habits; prescription medications can be used if needed (should improve over time) • Anticipate standard dose holds/discontinuations* |
| Myocarditis | Shortness of breath; arrhythmia; light- headedness; chest pain; fatigue; nausea; edema | • Obtain baseline ECG • Assess cardiac biomarkers (BNP; troponin) • Control cardiac diseases (and risk factors) optimally • Consult cardiologists and consider corticosteroids if myocarditis is suspected • Add additional immunosuppressive agents in severe, refractory cases • Institute standard dose holds/discontinuations (in consultation with cardiologist) |
| Nausea/vomiting | Vomiting, queasiness, RUQ or LUQ pain | • Rule out brain metastases and gastroenteritis • Provide standard supportive care, since it is adequate in most cases • Check LFTs/lipase/amylase if hepatotoxicity or pancreatitis is suspected • Anticipate standard dose holds/discontinuations* |
| Upper respiratory tract infection | Cough, runny nose, sore throat, nasal congestion | • Evaluate potential causes—a dry cough and shortness of breath would increase concern for pneumonitis • Standard supportive care • Anticipate standard treatment holds* |
| Vision changes | Eye redness, pain, blurred vision, photophobia | • Test and evaluate for uveitis and episcleritis (by ophthalmologist, preferably) • Urgency of ophthalmology referral increases with grade • G1: continue immunotherapy, use artificial tears • G2: hold immunotherapy; ophthalmic and systemic corticosteroids (under ophthalmologist guidance) • G3 or G4: permanently discontinue immunotherapy; treatment by ophthalmologist to include ophthalmic and systemic corticosteroids |
*Withhold nivolumab for any Grade 3 (severe) AE. Permanently discontinue for any Grade 4 (life-threatening) AE, persistent Grade 2-3 AE, any severe (Grade 3) AE that recurs, or when ≥10 mg/d prednisone or equivalent is required for 12 weeks. Resume treatment when AE returns to Grade 0 or 1.
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Liability issues with pawnshop selling firearms to the public
Lawsuits against firearm dealers generally are filed under one of two theories: irresponsible distribution of firearms that arm those breaking the law and unsafe design of firearms. This latter category is applicable to not only a firearm manufacturer, but also to firearm sellers.
These above categories are generally based on one of two causes of action; negligence of the firearm seller and a public nuisance cause of action. By far the most frequent are allegations that a firearm seller was negligent in selling the firearm to the person that used it to injure him/herself or others.
Examples of irresponsible sales that allow firearms to enter a criminal activity and cause harm to the party suing the pawnshop can arise as follows:
- The sale of a firearm to an irresponsible party. This could be a sale to a customer who is mentally unstable, intoxicated or exhibits other dangerous signs at the time of the sale. Note that CCTV video will come into play here most often.
- "Straw Sales" to otherwise qualified buyers who are purchasing the firearm to give or sell to a prohibited party like a convicted felon, etc. Employees must be trained not to allow this type of sale. When the person not purchasing the firearm picks out what will be purchased and acts with knowledge of the various firearms, a warning should go off that a potential straw purchase may be about to occur.
- Multiple and/or repeat sales. Under federal law, multiple sales are defined as more than one firearm to an individual within five business days. Repeat sales of several firearms to the same person may be a sign of gun-trafficking. Federal Firearms Licensees ("FFL's") are required by law to submit a separate report for any transactions involving the sale and transfer of multiple firearms.
- Missing Firearms. Many firearms that have been sold by dealers "off the books" were claimed in the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATF") reports to be lost or stolen. A large number of "missing" firearms can be grounds of a court finding of public nuisance.
One of the most important measures for a seller is to comply with ALL federal and state requirements to sell firearms. FFL's should be vigilant and proactive in legal compliance matters and also institute formalized training for all employees who sell firearms. The training should be recurring and documented for all employees who sell firearms.
Employers should also have a spot check compliance program on-going to verify employees who sell firearms are acting within federal, state and local laws.
Federal law that provides some protection to firearm sellers
One federal law, The Protection of Lawful Commerce in Arms Act—15 U.S.C. sections 7901-03, may provide some relief to firearm dealers in the pawnbroker industry. This law was passed by Congress in 2005 to attempt to shield firearm sellers and manufacturers from liability. This law bars the filing of new firearms cases against firearm dealers unless certain exceptions apply.
This act is by no means a "free pass" when it comes to firearm-related liability issues, however. The issues that will allow a firearm lawsuit to proceed, despite this federal law are: An action against a firearm dealer for negligent entrustment or negligence per se; and an action against a firearm dealer who "knowingly" violated a state or federal statute applicable to the firearm sale and that violation was the cause of the harm.
For a more detailed case study of this principal in action, we can examine the Badger Firearms lawsuit. Despite the federal law, in 2009 the court allowed a $6 million damage verdict to two Milwaukee police officers who were injured with a firearm that a local firearm shop sold to a straw buyer. For more information, please see the link at the end of this article.
Thus, although the federal law may help protect firearm sellers from liability and its application should be argued by counsel for a firearm seller in any lawsuit brought, most law suits now allege either negligent entrustment or negligence per se to allow a case to go to trial and avoid a summary judgment finding.
"Pawn, Sell and Trade"
As part of the pawn business model, it goes without saying that a shop can expect to not only see firearms heading out the door, but also being brought in by customers for pawning, sale, trade, or even gun-smithing services. Some risk-reducing measures to consider:
- Make sure conspicuous signs are posted on all entry doors telling customers bringing loaded firearms into store is strictly prohibited. Optimally, exterior signage should instruct patrons to advise and seek instructions from staff BEFORE bringing any firearms into the store. When this type of rule is obeyed, it allows for an opportunity for staff to prep for the transaction, as well as give one last reminder to ensure the firearm is unloaded.
- As another early layer of defense, post a guard at the door to ask each customer if they are bringing a firearm into the store and checking to make sure it is not loaded. At a minimum, if a guard is not feasible, ensure that all customers are properly greeted upon entering the store, and inquire if they plan to conduct a transaction with a firearm. Do not assume since you do not see a customer carrying a firearm, that they do not have it tucked in a pocket or carried loosely in a purse.
- Instruct customers that after obtaining permission, all unloaded firearms should be carried into the store in cases or containers. Ammunition should not be brought in at the same time or in the same container. In addition, if the pawnshop sells ammunition, it should be stored separate from firearms and out of the reach of customers.
Train employees to use proper procedures to accept firearms from customers wishing to sell, trade or pawn. This includes safe handling of firearms and ensuring all firearms are unloaded. Firearm safety training is critical for all employees handling firearms. All employees must always assume a firearm is loaded and follow the proper procedures to ensure it is clear each time it is handled. Standard practice, such as keeping the barrel pointed in a safe direction and trigger discipline, must always be observed. For personnel carrying firearms, consideration should be given to including classroom and range training. Classroom training should include, but is not limited to:
- Statutory requirements
- Company policy on the use of force
- Use of deadly force
- Firearms safety
- Written examination
- Safety practices both on-duty and at home
Range training should include, but is not limited to:
- Shooting stance
- Trigger control
- Breathing control
Physical and procedural security measures for FFL pawnbrokers
It has been stated that each year the BATF receives thousands of reports of the theft/loss from federally licensed firearms dealers. As a pawnbroker, the risk of criminal activity for those that deal in firearms increases for those individuals seeking to target that aspect of the business. In many incidents, the criminal will spend a considerable amount of time casing (evaluating) the business to determine their weaknesses or vulnerabilities only to later try and capitalize on these. While it may be impossible to eliminate all risk, as a pawnbroker with an FFL there are many ways to reduce the risk by "hardening the target" and making criminals think twice about their activity. The following are considered the best practice physical security and procedural controls to reduce that risk. While some of the following measures require time and capital expenditure, others can be implemented at no cost and in little to no time.
- Only show one firearm to a customer at a time. If the customer requests to see another firearm, that firearm should be adequately secured first prior to showing the other one.
- Install trigger locks or plastic ties on all firearms; at a minimum, on all firearms on display. In addition, trigger locks should be available for purchase where firearms are sold in accordance with federal law.
- Ensure that the showroom floor/retail firearms storage/display area is constantly staffed while customers are in the store. Generally, two employees are recommended. Note: CCTV coverage alone would not suffice for the mere presence of an employee.
- All firearms should put on display and removed from displays when no customers are present; before business hours or after business hours. All perimeter doors should be locked during this time and if the premises alarm system is setup in such a manner, the premises perimeter contacts should be armed. If it is not feasible to secure all retail long guns in a secure room at night, low value retail long guns may be left in the showroom if there is adequate facility perimeter hardening (i.e. doors, walls, roof, other accessible openings, etc.) and the long guns are adequately and securely cabled to a fixed structure (i.e. wall) within the showroom during non-operational hours.
- All showcases should be secured with a high security lock and remain locked when not in immediate access. Smash resistant glass or glazing should be installed on the top and all four sides in order to slow access to firearms and deter thieves, forcing them to spend minutes, rather than seconds, breaking through. In addition, all firearms should be adequately and securely cabled to a fixed structure (i.e. wall or showcase) within the showroom during operational hours.
- All permanently issued access control devices (keys, cards, alarm codes, combinations) should be issued formally by receipt, to include the date, signatures of the persons involved, and a statement advising the recipient of their responsibilities to protect the device. A register should be used to document the location and issuance of all access devices providing access to the facility and firearms storage (to include access device storage containers). All locks (entrance and those providing access to firearms), alarm codes, and combinations should be routinely changed annually or sooner if an access code holder is terminated, there is suspected compromise, or there is a change in employment status where the person issued no longer requires such access. Restricted access keys should be audited monthly, where the daily activity does not suffice for accountability, with the results documented.
- Ensure all ingress/egress facility access points, firearms transaction areas, firearms storage (i.e., showcases, safe/vault, etc.) and handling areas (i.e., gun-smithing) are covered by adequate CCTV camera coverage. Make sure video recordings are retained for at least 30 days. Should any incidents occur, they should be reported for insurance purposes. In addition to the 30 day storage of video recordings, these incidents should be saved on a separate storage device for future use and investigative purposes.
- Follow state and federal requirements pertaining to legally accepting or transferring firearms from customers, to include the proper reporting, serial number checks, and actions related to suspicious sellers.
- A register of all firearms should be kept on-site to include the make, model, caliber, serial number, and other identifiable features of the firearm. Furthermore, all firearms should be audited (inventoried) under dual control (by two people) on a specified and frequent basis.
- Ensure the layout of the store allows for unobstructed views of all firearms and remove any items that may cause blind spots.
Other considerations
Please consider that in states permitting concealed and open carry of firearms, there is a reasonable expectation by the public that firearms dealers are "2 nd Amendment Friendly" and permissive of carry in their stores. While this may be the case, continue to ensure safe practices are made known and enforced. Ensure that all firearms remain holstered at all times. Firearm aficionados can be eager to show off their new "pieces" or latest custom modifications. While firearm handling safety is of primary concern yet again here, also consider how an onlooker might view this scene from a distance – in the worst case, this could be mistaken as a robbery in progress!
Badger Firearms lawsuit:
http://archive.jsonline.com/watchdog/watchdogreports/wounded-officers-lawsuit-against-badger-guns-settles-for1-million-b99632780z1-361609031.html
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STATUTORY INSTRUMENTS
2019 No. 907
TOWN AND COUNTRY PLANNING, ENGLAND
The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019
The Secretary of State, in exercise of the powers conferred by sections 59, 60, 61, 108(2A), 108(3C), 108(5), 108(6), 220 and 333(1) and (7) of the Town and Country Planning Act 1990(a), makes the following Regulations:
PART 1
Introduction
Citation and commencement
1.—(1) These Regulations may be cited as the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019.
(2) These Regulations come into force on 25th May 2019.
PART 2
Amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015
Amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015
2. The Town and Country Planning (General Permitted Development) (England) Order 2015(b) is amended as follows.
(a) 1990 c.8. Amendments have been made to section 59 which are not relevant to this Order. Section 60 was amended by section 4(1) of the Growth and Infrastructure Act 2013 (c.27) and section 152 of the Housing and Planning Act 2016 (c.22). Section 220 was amended by section 42(4) of the Planning and Compulsory Purchase Act 2004 (c.5). Amendments have been made to section 333 which are not relevant to this Order.
(b) S.I. 2015/596, which has been amended by S.I. 2016/332, S.I. 2016/1040, S.I. 2017/391, S.I. 2017/619, S.I. 2018/119 and S.I. 2018/343.
Amendment to article 2
3. In article 2(1) (interpretation), for the definition of "transport undertakers" substitute—
""transport undertakers" includes, in addition to the meaning of transport undertaker in section 329 of the Highways Act 1980 (further provision as to interpretation), any person authorised to carry on—
(a) a road transport undertaking; or
(b) a tramway undertaking."
Amendments to Part 1, Class A
4. In Class A of Part 1 of Schedule 2—
(a) in paragraph A.1(g) omit the words "until 30th May 2019,";
(b) in paragraph A.4 omit sub-paragraphs (13), (14) and (15).
Amendments to Part 2, Class E
5. In Class E of Part 2 of Schedule 2—
(a) for paragraph E.1(a) substitute—
"(a) in relation to an upstand and outlet—
(i) within the curtilage of a dwellinghouse or a block of flats, exceed 1.6 metres in height from the level of the surface used for the parking of vehicles; or
(ii) in any other case, exceed 2.3 metres in height from the level of the surface used for the parking of vehicles;";
(b) after paragraph E.2. (conditions) insert—
"E.3. Interpretation of Class E
For the purposes of Class E—
"block of flats" means a building which consists of at least two flats.".
Amendments to Part 3, Class J
6. In Part 3 of Schedule 2, after Class J, insert—
"Class JA – retail, takeaway, betting office, pay day loan shop, and launderette uses to offices
Permitted development
JA. Development consisting of a change of use of a building from—
(a) a use falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) of the Schedule to the Use Classes Order, or
(b) a use as a betting office, pay day loan shop or launderette, to a use falling within Class B1(a) (offices) of that Schedule.
Development not permitted
JA.1. Development is not permitted by Class JA if—
(a) the building was not used for one of the uses referred to in Class JA(a) or (b)— (i) on 29th October 2018, or
(ii) in the case of a building which was in use before that date but was not in use on that date, when it was last in use;
(b) permission to use the building for a use falling within Class A1 (shops) or Class A2 (financial and professional services) of the Schedule to the Use Classes Order has been granted only by this Part;
(c) the development (together with any previous development under Class JA) would result in more than 500 square metres of floor space in the building having changed use under Class JA; or
(d) the building is—
(i) on article 2(3) land;
(ii) in a site of special scientific interest;
(iii) in a safety hazard area;
(iv) in a military explosives storage area;
(v) a listed building, or within the curtilage of a listed building; or
(vi) a scheduled monument or contains a scheduled monument.
Conditions
JA.2(1) Where the development proposed is development under Class JA, development is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—
(a) transport and highways impacts of the development;
(b) whether it is undesirable for the building to change use to a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order because of the impact of the change of use—
(i) on adequate provision of services of the sort that may be provided by a building falling within Class A1 (shops), Class A2 (financial and professional services) or Class A5 (hot food takeaway) of that Schedule or, as the case may be, as a launderette, but only where there is a reasonable prospect of the building being used to provide such services; or
(ii) where the building is located in a key shopping area, on the sustainability of that shopping area; and
(c) impacts of noise from commercial and retail premises on the intended occupiers of the development; and
the provisions of paragraph W (prior approval) of this Part apply in relation to that application.
(2) Development under Class JA is permitted subject to the condition that—
(a) development must be completed within a period of 3 years starting with the prior approval date; and
(b) a building which has changed use under Class JA is to be used as an office within the meaning of Class B1(a) (offices) of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as such an office.".
Amendments to Part 3, Class M
7. In Class M of Part 3 of Schedule 2—
(a) in the heading after "retail", insert ", takeaways";
(b) for paragraph M(a)(i) substitute"(i) a use falling within Class A1 (shops), Class A2 (financial and professional services) or Class A5 (hot food takeaways) of the Schedule to the Use Classes Order,";
(c) for paragraph M.2(1)(d)(i) substitute—
"(i) on adequate provision of services of the sort that may be provided by a building falling within Class A1 (shops), Class A2 (financial and professional services) or Class A5 (hot food takeaways) of that Schedule or, as the case may be, a building used as a launderette, but only where there is a reasonable prospect of the building being used to provide such services, or".
Amendment to Part 3, Class Q
8. In Class Q of Part 3 of Schedule 2 after paragraph Q.1(b), insert—
"(ba) the floor space of any dwellinghouse developed under Class Q having a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order exceeds 465 square metres;".
Amendment to Part 3, Paragraph W
9. In paragraph W of Part 3 of Schedule 2, for paragraph W(10)(b), substitute—
"(b) have regard to the National Planning Policy Framework issued by the Ministry of Housing, Communities and Local Government in February 2019(a), so far as relevant to the subject matter of the prior approval, as if the application were a planning application; and".
Amendments to Part 4, Class C
10. In Class C of Part 4 of Schedule 2—
(a) in paragraph C.2(d) after "a particular site;" omit "and";
(b) after paragraph C.2(d) insert—
"(da) for the purposes of the Use Classes Order as it applies to Class T of Part 3 of Schedule 2 to this Order, during the period of use as a state-funded school the building and any land within its curtilage retains the use class it had before changing to the use as a state-funded school;
(db) for the purposes of Class S of Part 3 of Schedule 2 to this Order, during the period of use as a state-funded school the building and any land within its curtilage retains the use as an agricultural building before changing to the use as a state-funded school; and".
Amendments to Part 4, Class D
11. In Class D of Part 4 of Schedule 2—
(a) in paragraph D(b) for "or Class B1 (business)" substitute—
", Class B1 (business), Class D1(a) (the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner), Class D1(d) (the display of works of art (otherwise than for sale or hire)), Class D1(e) (museum), Class D1(f) (public library or public reading room), or Class D1(g) (public hall or exhibition hall)";
(b) in paragraph D for "2 years" substitute "3 years";
(a) https://www.gov.uk/government/publications/national-planning-policy-framework--2 a copy of which may be inspected at the Planning Directorate, the Ministry of Housing, Communities and Local Government, 2 Marsham Street, London, SW1P 4DF.
(c) in paragraphs D.2(b) and D.2(c) for "2 year" substitute "3 year".
Amendment to Part 4, Class E
12. In Class E of Part 4 of Schedule 2 for paragraph E.3(10)(b), substitute—
"(b) have regard to the National Planning Policy Framework issued by the Ministry of Housing, Communities and Local Government in February 2019(a), so far as relevant to the subject matter of the prior approval, as if the application were a planning application.".
Amendments to Part 7
13. In Class F of Part 7 of Schedule 2—
(a) in paragraph F.1(d) omit "or";
(b) in paragraph F.1(e) for "." substitute "; or";
(c) after paragraph F.1(e) insert—
"(f) the building is in use as an office as permitted by Class JA (retail, takeaway, betting office, pay day loan shop, and launderette uses to offices) of Part 3 of this Schedule."
14. In Class G of Part 7 of Schedule 2—
(a) in paragraph G.1(a) omit "or";
(b) in paragraph G.1(b) for "." substitute "; or";
(c) after paragraph G.1(b) insert—
"(c) the building is in use as an office as permitted by Class JA (retail, takeaway, betting office, pay day loan shop, and launderette uses to offices) of Part 3 of this Schedule.".
Amendment to Part 14
15. In Class J of Part 14 of Schedule 2 for paragraph J.4(8)(b), substitute—
"(b) have regard to the National Planning Policy Framework issued by the Ministry of Housing, Communities and Local Government in February 2019(b), so far as relevant to the subject matter of the prior approval, as if the application were a planning application.".
Amendments to Part 16
16. In Class A of Part 16 of Schedule 2—
(a) in paragraph A.1(7), omit the whole of paragraph (c);
(b) after paragraph A.1(9), insert—
Development not permitted: public call box"
(10) Development consisting of the installation, alteration or replacement of a public call box is not permitted by Class A.";
(c) in paragraph A.2(3)(c), for sub-paragraph (iii) substitute—
(a) https://www.gov.uk/government/publications/national-planning-policy-framework--2 a copy of which may be inspected at the Planning Directorate, the Ministry of Housing, Communities and Local Government, 2 Marsham Street, London, SW1P 4DF.
(b) https://www.gov.uk/government/publications/national-planning-policy-framework--2 a copy of which may be inspected at the Planning Directorate, the Ministry of Housing, Communities and Local Government, 2 Marsham Street, London, SW1P 4DF.
"(iii) the construction, installation, alteration or replacement of radio equipment housing, where the volume of any single development exceeds 2.5 cubic metres,";
(d) in paragraph A.4 (interpretation of Class A)—
(i) after the definition of "electronic communications code operator" insert— ""electronic communications service" means a service falling within the definition of that term in section 32(2) of the Communications Act 2003(a);";
(ii) after the definition of "owner" insert — ""public call box" means any kiosk, booth, acoustic hood, shelter or similar structure which is erected or installed for the purpose of housing or supporting electronic communications apparatus and at which an electronic communications service is provided (or is to be provided) by an electronic communications code operator;".
PART 3
Amendments to the Town and Country Planning (Control of Advertisements)
(England) Regulations 2007
17.—(1) The Town and Country Planning (Control of Advertisements) (England) Regulations 2007(b) are amended as follows.
(2) In Part 1 of Schedule 3 omit the whole of Class 16.
(3) In Part 2 of Schedule 3 omit the definitions of "electronic communications apparatus"; "electronic communications service", "electronic communications code operator" and "telephone kiosk".
PART 4
Amendment to the Town and Country Planning (Compensation) (England) Regulations 2015
18.—(1) The Town and Country Planning (Compensation) (England) Regulations 2015(c) are amended as follows.
(2) In regulation 2(c), after "J," insert "JA,".
PART 5
Transitional and saving provisions
19.—(1) Where a prior approval event occurs, the planning permission granted by Class A of Part 16 of Schedule 2 to the Order continues to have effect in relation to a public call box as if the amendments made to that Order by Part 2 of these Regulations had not been made.
(2) A surface of a public call box which was used for displaying an advertisement on or before 24th May 2019 may continue to be used for that purpose.
(3) In this regulation—
"the Order" means the Town and Country Planning (General Permitted Development) (England) Order 2015(d);
(a) 2003 c.21. Section 32 was amended by S.I. 2011/1210 Schedule 1 paragraph 9(b).
(b) S.I. 2007/783 to which there are amendments not relevant to this Order.
(c) S.I.2015/598 which has been amended by S.I. 2016/331, S.I. 2017/392, S.I.2017/402, and S.I. 2017/620.
(d) S.I.2015/596.
"electronic communications apparatus" means apparatus falling within the definition of that term in paragraph 5 of the electronic communications code set out in Schedule 3A to the Communications Act 2003(a);
"electronic communications code operator" means a person in whose case the electronic communications code is applied by a direction under section 106(3)(a) of the Communications Act 2003(b);
"electronic communications service" means a service falling within the definition of that term in section 32(2) of the Communications Act 2003(c);
"prior approval application" has the same meaning as in section 69A(2) of the Town and Country Planning Act 1990(d);
"prior approval event" means—
(a) the giving of prior approval, in writing, in relation to the matters in paragraph A.3(4) of Class A of Part 16 of Schedule 2 to the Order—
(i) before 25th May 2019;
(ii) on or after 25th May 2019 where the prior approval application was submitted to the local planning authority before 25th May 2019;
(iii) on or after 25th May 2019 in relation to an appeal which was lodged under section 78 of the Town and Country Planning Act 1990 within 6 months of the date of notice of refusal of a prior approval application submitted before 25th May 2019;
(b) a determination, in writing, that prior approval is not required to be given—
(i) before 25th May 2019;
(ii) on or after 25th May 2019 where the prior approval application in accordance with paragraph A.3(5) of Class A of Part 16 of Schedule 2 to the Order, was submitted to the local planning authority before 25th May 2019; or
(c) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application in accordance with paragraph A.3(5) of Class A of Part 16 of Schedule 2 to the Order without the local planning authority notifying the applicant, in writing, of their determination as to whether such approval is required—
(i) before 25th May 2019;
(ii) on or after 25th May 2019 where the prior approval application was submitted before 25th May 2019;
"public call box" means any kiosk, booth, acoustic hood, shelter or similar structure which is erected or installed for the purpose of housing or supporting electronic communications apparatus and at which an electronic communications service is provided (or is to be provided) by an electronic communications code operator.
Signed by authority of the Secretary of State for Housing, Communities and Local Government
1st May 2019
Kit Malthouse Minister of State Ministry for Housing, Communities and Local Government
(a) 2003 c. 21. Schedule 3A was inserted by section 4 of, and Schedule 1 to, the Digital Economy Act 2017 c. 30.
(b) 2003. c.21. Section 106 was amended by section 4 of the Digital Economy Act 2017 c. 30.
(c) 2003. c.21. Section 32 was amended by Paragraph 9(b) of Schedule 1 to S.I. 2011/1210.
(d) Section 69A(2) was inserted by section 17 of the Neighbourhood Planning Act 2017 c. 20.
EXPLANATORY NOTE
(This note is not part of the Regulations)
Part 2 of these Regulations amend the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the Order") (S.I. 2015/596).
Regulation 3 amends the definition of "transport undertakers", in article 2(1) of the Order for the purposes of interpreting Class C of Part 9 of Schedule 2 to the Order.
Regulation 4 makes permanent the existing temporary right to enlarge a dwellinghouse by up to 8 metres in the case of a detached dwellinghouse or by 6 metres in the case of any other dwellinghouse, as permitted by Class A of Part 1 of Schedule 2 to the Order. It removes the time limiting date of 30th May 2019, as well as conditions which required development to be completed by that date.
Regulation 5 increases the height limit of electrical upstands and outlets for recharging electric vehicles to 2.3 metres, as permitted by Class E of Part 2 of Schedule 2 to the Order. It also clarifies that the previous height limit of 1.6 metres still applies to upstands and outlets within the curtilage of a dwellinghouse or block of flats.
Regulation 6 inserts a new Class JA into Part 3 Schedule 2 to the Order to introduce a new permitted development right allowing the change of use of a building falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (S.I. 1987/764) ("the Use Classes Order"); or a betting shop, pay day loan shop or launderette, to a use falling within Class B1(a) (offices) of that Schedule. The new permitted development right contains limitations and conditions on how it will operate. The date, 29th of October 2018, as referred to in the new right reflects the publication date of the consultation where this right was proposed, Planning Reform: supporting the high street and increasing the delivery of new homes. A copy of the consultation can be found here: https://www.gov.uk/government/consultations/planning-reform-supporting-thehigh-street-and-increasing-the-delivery-of-new-homes
Regulation 7 extends Class M of Part 3 of Schedule 2 (retail and specified sui generis uses to dwellinghouses) to permit buildings with a use falling within Class A5 (hot food takeaways) of the Use Classes Order to also change use to a dwellinghouse.
Regulation 8 clarifies that the floor space of any dwellinghouse created by Class Q of Part 3 of Schedule 2 to the Order cannot exceed 465 square metres.
Regulations 9, 12 and 15 amend references to the National Planning Policy Framework 2012 to the most recent version of the National Planning Policy Framework which was published by the Ministry for Housing, Communities and Local Government in February 2019. The footnotes to these references have also been updated to reflect where this document can be obtained electronically online.
Regulation 10 clarifies that buildings which are in use as a temporary state-funded school as permitted by Class C of Part 4 of Schedule 2 to the Order, will retain the use or use class they had before becoming a temporary state-funded school for the purposes of Classes S and T of Part 3 of Schedule 2 to the Order. This will enable agricultural buildings which are in use as a temporary state-funded school, as permitted by Class C of Part 4 of Schedule 2 to the Order, to change use to a state-funded school permanently, as permitted by Class S of Part 3 of Schedule 2 to the Order. This will also enable buildings that fall within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions, Class C2A (secure residential institutions) and Class D2 (assembly and leisure) of the Use Classes Order which are in use as temporary state-funded schools, to change use to a state-funded school permanently, as permitted by Class T of Part 3 of Schedule 2 to the Order.
Regulation 11 extends Class D of Part 4 of Schedule 2 (shops, financial, cafes, takeaway etc to temporary flexible use) to the Order, to include certain Class D1 (non-residential institutions) uses of the Use Classes Order as a permitted temporary flexible use. These named Class D1 (nonresidential institutions) uses are Class D1(a) the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner, Class D1(d) the display of works of art (otherwise than for sale or hire), Class D1(e) museum, Class D1(f) public library or public reading room, and Class D1(g) public hall or exhibition hall. Regulation 11 also extends the period of time that a building can be in a temporary flexible use from 2 years to 3 years.
Regulations 13 and 14 clarify that a building that is in use as an office as permitted by Class JA of Part 3 of Schedule 2 to the Order (as introduced above), cannot benefit from the permitted development rights in Classes F and G of Part 4 of Schedule 2 to the Order which are available to office buildings generally.
Regulation 16 amends Class 16 of Part 1 of Schedule 3 by removing permission for the installation, alteration or replacement of a public call box by, or on behalf of an electronic communications code operator.
Regulation 17 of Part 3 of these Regulations amends the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (S.I. 2007/783) by removing deemed consent to display an advertisement on the glazed surface of a telephone kiosk.
Part 4 of these Regulations amends the Town and Country Planning (Compensation) (England) Regulations 2015 ("the Compensation Regulations") (S.I.2015/598).
Regulation 18 amends the Compensation Regulations to add the new class JA of Part 3 of Schedule 2 to the Order into the list of permitted development rights for which compensation on withdrawal of the right is limited in various ways provided in the Compensation Regulations. The effect of this regulation is that if a local planning authority withdraws the new permitted development right by issuing a direction under article 4 of the Order, compensation is only payable in respect of planning applications made within 12 months beginning on the date that the direction took effect. The Compensation Regulations also allow local planning authorities to avoid compensation liability on withdrawal of the new permitted development rights by publicising their intention to make an article 4 direction at least one year, and not more than two years, ahead of the article 4 direction taking effect.
Regulation 19 of Part 5 of these Regulations make transitional and savings provisions.
A copy of the National Planning Policy Framework may be viewed online at https://www.gov.uk/government/publications/national-planning-policy-framework--2 or a copy may be inspected at the Planning Directorate, the Ministry of Housing, Communities and Local Government, 2 Marsham Street, London, SW1P 4DF.
An assessment of impact has been completed. Copies may be inspected at the Planning Directorate, the Ministry of Housing, Communities and Local Government, 2 Marsham Street, London, SW1P 4DF.
© Crown copyright 2019
Printed and published in the UK by The Stationery Office Limited under the authority and superintendence of Jeff James, Controller of Her Majesty's Stationery Office and Queen's Printer of Acts of Parliament.
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Establishment/Department: All TLP schools Newport Community School Primary Academy
Establishment Risk Assessment and School Operation Protocol
COVID-19
Address : Landkey Road Barnstaple EX32 9BW
| Activity/Task/Process/Equipment Mitigating the risk of a COVID-19 infection during School Partial Opening | | Assessor(s): Erick Muzard / Andy Cotton, Schools Leaders Annette Yates HT, Georgie Gratton, Gillian Courtenay, Paul Wait, Bridget Wade | |
|---|---|---|---|
| | Update – 12/01/2021, Risk Assessment and Operation Protocol sections | | EM/AC |
| | Complete for school context 12.1.21 | | AY/GC/GG/PW/BW |
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Control measures in place
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Groups mixing during breaks and
| Wraparound provision: Groups mixing during extra-curricular provision | Schools should work to continue any breakfast and after-school provision, where possible. Carefully consider with external providers how such provision can work alongside wider protective measures, including keeping children within their year groups or bubbles where possible. If it is not possible to maintain consistent bubbles being used during the school day then use small, consistent groups. Schools can consult the guidance produced for providers who run community activities, holiday clubs, after-school clubs, tuition and other out-of-school provision for children, as much of this will be useful in planning extra-curricular provision. Where parents use childcare providers or out of school extra- curricular activities for their children, schools should encourage parents and carers to seek assurance that the providers are carefully considering their own protective measures, and children should only attend settings that can demonstrate this. DfE have issued guidance for parents and carers, which schools may want to circulate. |
|---|---|
| Spread of virus due to increased numbers of people within the grounds. | Inform parents that if their child needs to be accompanied to school only one parent should attend. Parents should not enter the school building unless under exceptional circumstances or at the Head Teacher’s discretion. |
| Staff | Staff should maintain Public Health guidance of 2m wherever possible. If reduced to 1m as long as mitigations are in place, e.g. not face to face or wearing PPE (face covering doesn’t count) or a Perspex screen in place. The priority is always to try to maintain 2m social distancing, but where this cannot be achieved, regular hand washing/cleaning and good respiratory hygiene are also important for both staff and pupils. In primary school settings maintaining consistent ‘bubbles’ is key to virus reduction. |
| Premises related matters | |
| Changes to building use being safe for pupils & staff – e.g. storage, one- way systems, floor tape. | Follow the School Operation Protocol to ensure control measures are suitable and in place – see below. Consider how the layout will enable access to outdoor space and the equipment necessary for teaching the year groups. Consider how changes will impact on arrangements such as safe fire evacuation routes (see below). |
| First Aid procedures – Reduced numbers of first aiders and Paediatric first aider. | Review First Aid risk assessment. Rota systems in place to ensure adequate numbers of first aid and PFA trained staff. Communication of first aid arrangements during daily briefings. PPE within first aid supplies |
| Fire Procedures | Review the fire risk assessment taking into consideration any changes made to the layout, and the impact this may have on fire evacuation and escape routes. Ensure that testing and monitoring regimes are in place for fire detection and alarm systems, fire extinguishers and that any interim arrangements (such as doors propped open where necessary to reduce hand contact), are managed so that they do not compromise fire protection (and security) measures. Review where required fire evacuation routes and assembly points to ensure that social distancing guidelines are being met. |
| Water hygiene – management of legionella | Review the water hygiene management plan. Ensure that agreed regimes for flushing and monitoring of temperatures have been maintained throughout any period of closure / partial opening. Where regimes have not been maintained ensure that cleaning and disinfection has taken place prior to reoccupation as per government guidance Managing School Premises during the Covid-19 outbreak. |
| Using and monitoring new practices to reduce risk of Covid-19 transmission | Training of all staff via briefing prior to start – to include contents of this RA, alternative layouts and any changes to fire evacuation routes, use of PPE, location of designated room for suspected cases. Explaining to children about the use of face coverings – to support children with adhering to social distancing. Headteachers and school leaders must |
Staggered break times and ensure appropriate supervision is in place. Use different playground locations where
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monitor arrangements and make remedial actions where needed. Ensure there are opportunities for all employees to
| Management of premises related risks e.g. asbestos, delayed statutory testing (LOLER) | Communication arrangements to ensure that requirements and controls are understood by responsible persons (e.g. signing in processes for contractors). If equipment is not within statutory test periods (e.g. lifts and hoists) then it should be taken out of use until the inspection and test can be completed. |
|---|---|
| Staff rooms and offices to comply with social distancing and safe working practice | Numbers of people reduced at one time to allow social distancing – chairs removed/placed apart. Avoiding unnecessary gatherings. Where possible reduce the use of communal / shared facilities such as tea and coffee facilities and encourage staff to bring their own food and utensils. Enhanced cleaning regimes as per below. |
| Ventilation to reduce spread | Schools need to balance the need for increased ventilation while maintaining a comfortable temperature, the following measures should also be used as appropriate: • opening high level windows in preference to low level to reduce draughts • increasing the ventilation while spaces are unoccupied (e.g. between classes, during break and lunch, when a room is unused) • providing flexibility to allow additional, suitable indoor clothing. For more information see School uniform • rearranging furniture where possible to avoid direct drafts • mechanical ventilation systems – these should be adjusted to increase the ventilation rate wherever possible, and checked to confirm that normal operation meets current guidance (if possible, systems should be adjusted to full fresh air or, if not, then systems should be operated as normal as long as they are within a single room and supplemented by an outdoor air supply) • Opening internal doors can also assist with creating a throughput of air • natural ventilation – if necessary external opening doors may also be used Where schools believe that ventilation could be improved by leaving fire doors, either internal or external, open, this must only be done once the fire risk assessment has been reviewed and amended. Schools must ensure that systems are in place to close doors in the event of a fire alarm, during breaks if they cannot be monitored or at the end of the day. There is also the security risk of leaving external doors open and therefore there must be procedures in place to mitigate this such as ensuring that they are closed at times when they cannot be sufficiently monitored. • Ventilation to chemical stores should remain operational. It is advisable to use a thermometer to monitor temperatures where opening windows and doors is being used as a mechanism to aid ventilation. For more information on suitable workplace temperatures and ventilation and air conditioning see HSE: Guidance on temperature in the workplace and Ventilation and air conditioning during the coronavirus (COVID-19) |
| Management of waste | Ensure bins for tissues are emptied throughout the day. Follow Guidance on disposal of PPE waste (such as used fluid resistant masks) and Government guidance on disposal of waste, including waste such as wipes and cloths generated by additional cleaning and disposable face coverings where for instance they have been worn for the journey to school. You must make sure that these items are disposed of properly rather than going into recycling bins. |
| Management of incoming goods | Consider how to manage supplies coming into the school, which takes into consideration SD and hygiene measures. E.g. drop-off point – one person controls the process etc. |
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School owned outdoor play
| Hiring out premises | No hiring out of the premises during the national lockdown process. |
|---|---|
| Cleaning and reducing contamination | |
| Contaminated surfaces spreading virus. | Classroom based resources such as sports, art and science equipment can be used and shared within the bubble. Such resources should be cleaned frequently and meticulously and always between bubbles or rotated to allow them to be left unused and out of reach for a period of 48 hours (72 hours for plastics) between use by different bubbles. In order to facilitate cleaning, remove unnecessary items from learning environments where there is space to store them elsewhere. Public health advice is to remove all soft toys, and any toys that are hard to clean, such as those with intricate parts. Where practicable, remove soft furnishings, for example pillows, bean bags and rugs. In cases where soft furnishings are still in use, they should be laundered by following the guidance in the attached link: https://www.gov.uk/government/publications/covid-19-decontamination-in-non-healthcare-settings/covid-19- decontamination-in-non-healthcare-settings Consideration should also be given to soft furnishings within Sensory Rooms and where possible these furnishings should be child specific so as to avoid cross contamination. If this is not possible then they should be laundered as per the guidance contained in the above link. Follow government guidance for working in education and childcare if a someone becomes ill with suspected COVID- 19 at the setting. Follow guidance on Cleaning and decontamination of non-health care settings. |
| Shared resources and equipment increasing spread | Prevent the sharing of stationery and other equipment where possible Suitable procedures in place for managing access to items of ‘heavy use’ such a photocopiers to maintain social distancing. Enhanced cleaning regimes. |
| Cleaning staff and hygiene contractor's capacity - providing additional requirements | Discuss with cleaning staff the additional cleaning requirements and agree additional hours to allow for this. Ensure cleaning products being used are suitable (refer to Premises Guidance document) and that adequate supplies of cleaning materials are available. See Safe working in education and childcare for guidance on PPE and put in place an enhanced cleaning schedule and establish more frequent cleaning of shared areas or those used by different groups. |
| Sufficient handwashing facilities for staff and pupils | Where a sink is not nearby, provide supervised access to hand sanitiser in classrooms and other learning environments. Plan in regular access to facilities throughout the day. Provide additional sinks where possible. Ensure enough handwash and sanitiser stations are available based on what you have learned from usage to date. |
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Additional time for staff and pupils to carry out handwashing
Frequent hand cleaning as part of normal routine. Stagger regular access to handwashing facilities through the day.
Build routines into behavior expectations and school culture.
| Handwashing practice with children | Review the guidance on hand cleaning and introduce handwashing songs for younger children. Ensure that help is available for children and young people who have trouble cleaning their hands independently. See guidance and resources available at e Bug. Consider risks around ingestion of sanitiser and where this is a risk substitute for skin friendly sanitiser wipes for young children / those with complex needs. |
|---|---|
| Good respiratory hygiene | Promote ‘catch it, bin it, kill it’ ensuring that enough tissues and bins are available. Support should be provided for young children and those with complex needs, particularly where children spit / use saliva. In such cases this should be considered within the pupil’s individual risk assessment. |
| Sufficient supplies of soap and cleaning products | Discuss with suppliers to ensure sufficient supplies and deliveries. Review COSHH assessments and implement additional controls required where there has been any change in products. |
| Toilets being overcrowded | Limit the number of children or young people who use the toilet facilities at one time. Visiting the toilet one after the other if necessary. Different groups don’t need to be allocated their own toilet blocks, but toilets will need to be cleaned regularly and pupils must be encouraged to clean their hands thoroughly after using the toilet. |
| Staff related issues | |
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- Reducing bubble sizes,
- reducing face to face meetings (move to video calling if appropriate),
| Managing supply teachers, visitors, contractors and other temporary visiting staff. | Supply teachers, peripatetic teachers and/or other temporary staff can move between schools. They should ensure they minimise contact and maintain as much distance as possible from other staff. Specialists, therapists, clinicians and other support staff for pupils with SEND should provide interventions as usual. Schools should consider how to manage other visitors to the site, such as contractors, catering staff and deliveries, as well as cleaning staff and site staff who may be working throughout the school and across different groups / sites. This will require close cooperation between both schools and the other relevant employers. Schools should have discussions with key contractors about the school’s control measures and ways of working as part of planning for the winter and spring term and ensure site guidance on physical distancing and hygiene is explained to visitors on or before arrival. Where visits can happen outside of school hours, they should. A record should be kept of all visitors. It is important that staff who are managing supply teachers, visitors, contractors and other temporary visiting staff are conversant with hygiene protocols within the school. All TLP Central Team staff member, nursery, CAIRB staff and secondary school staff offered a Lateral Flow Test on a weekly basis. |
|---|---|
| Insufficient staff capacity to deal with increased numbers of pupils - Shortage of teachers to maintain staff to pupil ratios | If there are any shortages of teachers to teach the number of classes, appropriately trained teaching assistants can be allocated to lead a group, working under the direction of a teacher. Careful planning of the year groups/classes should be undertaken based on staff availability. Supply teachers and other peripatetic staff can be engaged where necessary. See ‘school Workforce’ section of the DfE guidance: https://www.gov.uk/government/publications/actions- for-schools-during-the-coronavirus-outbreak/guidance-for-full-opening-schools#section-1-public-health-advice-to- minimise-coronavirus-covid-19-risks Head Teachers, in consultation with the CEO, reserve the right to close part or entire school if there are insufficient staffing level. |
| Anxiety levels of staff and community causing breakdown in staffing ratios, compromising group sizes. | Talk to staff about (and/or put in writing) the plans (for example, safety measures, timetable changes and staggered arrival and departure times), including a discussion on whether training would be helpful. If appropriate, seek GP or occupational health advice. Where the member of staff has anxieties about returning, this conversation can be held and recorded using the ‘Risk assessment for all staff including vulnerable groups’ – see appendix for RA. Further advice is available from JD if required. Head teacher will be supported by TLP Central Team through regular visits to support their wellbeing. Each Head Teacher should develop a system to monitor and support staff wellbeing. |
| Staff understanding of new changes – safe practice at work & in classroom. Teaching in a safe environment | Talk to staff about the plans (for example, safety measures, timetable changes and staggered arrival and departure times), including discussing whether training would be helpful. |
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Accessing testing arrangements are
–
Coronavirus testing in clear for all staff
Guidance about testing, including the NHS 'Test and Trace' service, is available via this link
Devon, Mass testing.
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Dealing with suspected and confirmed case/ cases and outbreak.
Dealing with suspected and confirmed case/ cases and outbreak.
Pupil related issues
Face coverings & PPE
Loading for vehicles above nine passenger seats
Good practice & personal care
Carriage of passengers with symptoms
Children with Special Educational Needs:
Any arrangements will require clear communication between schools and families/students, and school staff should initially be on hand at the end of each day to assist the students.
Where possible, transport operators will aim to keep windows on home to school transport open to increase ventilation; or use air conditioning.
Ensure organised queuing/boarding and distancing within vehicles if possible.
It is now the law that people age 11 and over must wear a face covering on public transport. This law does not apply to school transport. However, TLP, supported by PHE, recommend that people aged 11 and over wear a face covering when travelling on dedicated school transport from the start of the autumn term. However, there are some exemptions: https://www.gov.uk/government/publications/coronavirus-covid-19-safer-transport-guidance-for-operators/coronaviruscovid-19-safer-transport-guidance-for-operators#exemptions-from-mandatory-face-coverings
Face coverings should not be worn by those who may not be able to handle them as directed (for example, young students, or those with special educational needs or disabilities) as it may inadvertently increase the risk of transmission. Drivers may wear face coverings if they wish to, although guidance indicates that PPE is not normally needed on home to school transport.
Transport Co-ordination Service will work with operators, schools and parents to manage arrangements for organised queueing and boarding.
Seats alongside or immediately to rear of the driver may be out of use and if so, would be clearly marked as "out of use" by the operator.
Students should be asked to respect the driver's personal space and hold back from entering the vehicle until the driver has indicated it is safe to do so, and then do so one by one in an orderly manner. They should hold their bus pass so it is visible to the driver (and produce for closer examination if requested).
ALL students will be expected to abide by the DCC Code of Conduct
Students, drivers and escorts should clean their hands, before boarding home to school transport and when arriving at school or home. It should not normally be necessary for students to clean their hands during the journey.
Coughs/sneezes – students/parents to be given guidance on good management of coughs and sneezes, in line with the "catch it, bin it, kill it" approach – this will be reinforced in schools. Students should be encouraged to carry tissues on home to school transport. These will need to be disposed of in a covered bin. Where it is not possible to have a bin on board, schools should have a suitable disposal process on arrival.
Parents must be advised that students MUST NOT board home to school transport, if they or a member of their household has symptoms of coronavirus. Any child, young person or other learner who starts displaying coronavirus symptoms while at their setting should be sent home immediately. They must not travel on home to school transport. The school should contact the parent or carer who should make arrangements for the child or young person's journey home. In exceptional circumstances, where this is not possible, and where a symptomatic child or young person or other passenger needs to be transported to their home, you must contact the Transport Coordination Service at DCC. Transport Coordination Service will work with Public Health colleagues to manage any virus outbreak. Students, drivers and passenger assistants who have been in contact with someone that has developed symptoms whilst at school or on home to school transport do not need to go home to self-isolate unless;
* they develop symptoms themselves (in which case, they should arrange a test) or
* the symptomatic person subsequently tests positive (see below) or
* if they have been requested to do so by NHS Test and Trace.
Page 13 of 26
| | Schools should consider risk reduction measure such as physical distancing and playing and singing outside wherever possible, limiting group sizes, positioning pupils back-to-back or side-to-side, avoiding sharing of instruments, and ensuring good ventilation. The guidance should be consulted for further information relating to: - peripatetic music staff, - cleaning and handling of equipment, - singing and playing brass and woodwind instruments - Avoiding sharing of musical instruments - Handling scripts |
|---|---|
| Physical activity in schools | Pupils should be kept in consistent groups, sports equipment thoroughly cleaned between each use by different individual groups, and contact sports avoided. Outdoor sports should be prioritised where possible, and large indoor spaces used where it is not, maximising distancing between pupils and paying scrupulous attention to cleaning and hygiene. This is particularly important in a sports setting because of the way in which people breathe during exercise. External facilities can also be used in line with government guidance for the use of, and travel to and from, those facilities. Schools should refer to the following advice: • guidance on the phased return of sport and recreation and guidance from Sport England for grassroot sport • advice from organisations such as the Association for Physical Education and the Youth Sport Trust Schools are able to work with external coaches, clubs and organisations for curricular and extra-curricular activities where they are satisfied that this is safe to do so. Schools should consider carefully how such arrangements can operate within their wider protective measures. Activities such as active miles, making break times and lessons active and encouraging active travel help enable pupils to be physically active while encouraging physical distancing. More recent and less detailed updates are in: Restricting attendance during the national lockdown: schools (publishing.service.gov.uk) |
| Practical science, art and D&T lessons | Guidance from CLEAPSS should be followed when planning practical lessons, using resources such as the Guide to doing practical science work during Covid-19, Guide to doing practical work in D&T, food and art , Carrying out practical science work in non-lab environments and for primaries Practical activities in a bubble. Schools must ensure that they stay up to date with the latest guidance in these specialist areas. |
| Educational visits | Currently all off site visits are not permitted unless authorised by the Head Teacher under exceptional circumstances Residential visits are strictly prohibited under any circumstances. In future and under the right conditions - All educational visits should be planned and risk assessed following the usual school procedures and taking into consideration the information in the guidance at: https://www.gov.uk/government/publications/actions-for-schools-during-the-coronavirus-outbreak/guidance-for-full- opening-schools#educational-visits For additional information check with EVOLVE guidance on website. |
Page 14 of 26
Groups of children mixing resulting in The latest January 2021 government guidance,Restricting attendance during the national lockdown: schools
Page 16 of 26
School Operation Protocol
Pre-opening Premises Checks
Pre-opening caretaking & cleaning checks of dormant internal & external areas that are to be used.
Internal
* Caretaker to ensure all statutory compliance checks are up to date (fire system checks, Legionella etc. as per building compliance checklist).
* Caretaker to ensure ample stocks of required cleaning materials are in place prior to further opening and ongoing.
* Caretaker to ensure body fluids clean up kits are supplied with ample materials.
* Areas of the premises that have been out of use to be checked for safety by premises caretaker i.e. fire doors functioning correctly, windows open effectively, classroom sinks and taps flushed.
* Caretaker to wedge open all internal doors where possible to prevent human touch
* Cleaning team to complete a standard clean on all rooms to be used that have been out of use before carrying out a full sanitising of the room following the agreed procedure.
* Caretaker/teaching staff to remove all non-essential furniture (surplus chairs, tables and mobile units) from the classroom. If storage is an issue, tray units can be turned to face the wall, chairs & tables stacked etc.
* Teaching materials (stationary etc) kept to minimum to aid with sanitising after use.
* Classroom and corridor surfaces to be kept clear to aid cleaning/sanitising.
* Caretaker/cleaning team to ensure ample hand soap, gloves, sanitiser spray, blue cloths, tissues and hand sanitiser are available within each classroom.
* Caretaker to ensure all available external windows are opened for maximum ventilation, appropriate to temperature maintenance during cold weather.
* Caretaker/cleaning team to ensure toilets are fully stocked with toilet rolls and hand soap.
* Caretaker to ensure toilet windows are opened and extraction systems are working to optimum efficiency (filters cleaned).
External
* Caretaker to check entire premises daily to ensure all areas are safe for use.
* Caretaker to take all climbing apparatus/high risk areas out of use to prevent cross contamination in areas that cannot be sanitised.
Cleaning procedures for expanded numbers of premises users
* School leaders/caretakers to adapt cleaning staff hours temporarily to match schools new opening hours to ensure upgraded thorough cleaning/sanitising is carried out every day.
* School leaders/caretaker to ensure adequate numbers of cleaners are available to complete the level of cleaning required.
* Duty Senior Leader or delegated person to brief all staff before starting shifts to changes or incidents that will affect their working pattern.
* Caretaker to ensure copies of COSHH risk assessments/safety data sheets are available for sanitiser and other chemicals.
Page 17 of 26
Cleaning and disinfection
Drop-offs and pick-ups
* Support & Teaching staff to be trained in the procedure and safe use of classroom sanitiser
* Cleaning team to follow the TLP COVID-19 cleaning procedure to all areas – refer to Premises Guidance document for details.
* Increase the level of cleaning across the schools, focusing on any contact points, doors, door handles, walls, lockers, desks and chairs.
* All rooms waste to be double bagged and place in the skip immediately.
* Always reinforce the message to all cleaning teams of the necessity of wearing PPE (gloves and plastic aprons) – carry out spot checks to ensure this is being followed.
* Site team to wear face coverings at all times (as per all staff)
* To use facecovering/eye protection/gloves and apron for cleaning of isolation rooms following incident
* Cleaning if there has been a suspected case in school – refer to Premises Guidance check list.
* Systematically use the return to work form for any staff coming back from illness – should be done remotely and digitally and prior to return
Numbers of pupils onsite are restricted as er the latest government guidance January 2021: Restricting attendance during the national lockdown: schools (publishing.service.gov.uk)
Drop-offs
* Develop a drop-off and pick-up plan according to your setting and number of expected pupils – using different entry points as possible
* Drop off natural drop off from 8.25am
* Communicate the drop-offs plan to parents/carers
* Stagger the beginning and end of the school day, so not all pupils enter and leave school at the time or use different exits/entrances if site allows
* Set out 2-metre markers on the ground using, tape, cones, barriers or spray if required
* Use clear and visible directional, safety awareness and information signage – internally and externally, especially in corridors where needed.
* Member of staff positioned at the school entrance to manage and monitor the pupil flow during dropoffs
* Do not allow parents/carers to enter the school building during drop-offs and pick-ups – pupils should be let in by staff only
* Maintain all doors and gates open during drop-offs
* Organise pupils hand washing before joining the group – staff to oversee
* Direct pupils to class directly after handwashing
Pick-ups
* Member of staff positioned at the school entrance to manage and monitor the pupil flow during pick-ups
* Communicate the pick-ups plan to parents/carers
* Do not allow parents/carers to enter the school premises during pick-ups – pupils should be let out by staff only
*
Maintain all doors and gates open during pick-ups
* Maintain all doors and gates open during pick-ups
* Use external doors as much as possible
Toilets and changing rooms
Classrooms
* Pick up – different collection points – review with increase of numbers to decide if time staggering required
Toilets
* Limit the number of pupils in the toilets at any one time in order to respect the social distancing
* Each pod allocated own toilet area – review with any increase in numbers
* Supervise the journey to and from the toilets
* Urinals/trough – condemn one in two urinal and mark the floor using tape
* Frequently ventilate the toilets and check the cleanliness and good working order of the extractors
* Supervise hand washing if possible
* Insure adequate stock throughout of soap, paper towels and toilet paper
* Organise cleaning inspection throughout the day
* Insure deep clean of all toilets on a daily basis – follow cleaning procedure
Changing Rooms (if absolutely necessary) –
No use of lockers or changing rooms
The classroom should be set in order to respect the social distancing as much as reasonably practical.
* Set 2 M distancing in secondary schools from teacher to pupils
* Teachers (primary and secondary)/ pupils (secondary) to wear PPE in communal areas such as corridors, meeting places
* Allocate one teaching group per space and where possible keep pupils constant
* Calculate the maximum number of pupils per class in order to achieve the recommended physical distancing
* Set the tables accordingly – theatre style or other – avoiding face to face between pupils
* Child to have own equipment and own table and chair
* Remove any unnecessary furniture in order to create maximum available space
* Avoid tables next to entry and exit door in order to achieve physical distancing of 2 metres when entering or exiting the class
* Reduce the movement within the class
* Set up a visible class one way traffic - arrows on the floor (tape) if required
* Ventilate the class before, during and after use as much as practically possible
* Minimise as much as possible the number of objects, equipment used by the pupils – especially small items
* Sanitize all equipment and surfaces as often as possible throughout the day
* Consider use of outdoor learning environment for teaching
* Removal of soft furnishings
* Additional cleaning of shared equipment/toys during school day
Movement within the school
Breaks
Before class
* Open all windows for natural ventilation
* Check the set up of the class
* Prop the door open (external if possible)
* Guide the group respecting the directional arrows - one way system
* Check that all teaching equipment has been cleaned and disinfected
During class
* Monitor and enforce social distancing between pupils, teacher and support teaching staff
* Avoid exchange of personal objects
* Use outside areas as much as possible
At the end of class
* Prop the door open (external if possible)
* Check that the corridors are free
* Guide the group respecting the directional arrows - one way system
* Create a one way system within the school if possible – if not, create a two way system using physical barriers or tape
* Place in strategic position simple directional signage around the school – poster, arrows, colour scheme..
* Adopt, whenever possible, a propped open door policy within the school to avoid contact points and potential cross contamination
* Use external doors as much as possible
* Monitor and enforce social distancing while in corridors
* Stagger arrival, departure, breaks, lunch as much as possible and communicate timings to all staff
* Handwashing before and after breaks
* Avoid more than 1 group to take a break at the same time in the same location
o Stagger break time and communicate between classes
o Assign designated areas for each group if possible
o Use external areas as much as possible
o Use external doors for exit and entry as much as possible
* Monitor and enforce social distancing
* No physical contact games
* Avoid the use of outdoor play equipment or disinfect after each use – each pod has own equipment kept in classroom – left for cleaning each day
* Propose games and activities which comply with social distancing
* During bad weather use the hall if possible, enforcing the same rules as for external play
* Organise and supervise handwashing after breaks before re-integrating the classroom
Lunch – Packed lunch and school dinners
Before the Breaks
* Double check the timing and location
* Avoid crossing path with another group
* Check that any outdoor play equipment is not accessible or has been disinfected if used
During the Breaks
* Monitor and enforce social distancing
* Provide face masks and gloves to staff on duty in case of close assistance required
* Ban exchange of personal objects
* Pods first aid pouch taken out – contains PPE
* External doors of classroom open for air change
After the Breaks
* Avoid crossing path with another group
* Organise and supervise handwashing after breaks before re-integrating the classroom
* Keep pupils in learning groups which then play
* Packed lunch to be eaten in classrooms or outside (weather permitting)
* Kitchen to consider cold food option (Packed lunch style) delivered in classrooms or outdoor
* Youngest children – food delivered to classroom in specialist boxes (hot plate trolley's costed for weekly renting if numbers increase)
* Other children collect food from kitchen and return to classroom
* Organise staggered time for school dinners
* Calculate the maximum number of pupils within the school hall in order to achieve the recommended physical distancing of 2 metres, where possible – no use of school hall for dining – hall kept free for use in bad weather
* Set the tables accordingly – theatre style or other – avoiding face to face between pupils
* Avoid tables next to entry and exit door in order to achieve physical distancing of 2 metres when entering or exiting the class
* Reduce the movement within the school hall
* Set up a visible one-way traffic - arrows on the floor (tape) or cones
* Ventilate the hall before, during and after use as much as practically possible
* Handwashing before and after meals – to be supervised
* Clean and sanitize tables and chairs immediately after use – using the recommended food safe cleaning products
* Provide face mask and gloves to Teaching Meal Assistant – especially when close assistance is required
* In order to minimise movements;
o MTA for each pod takes food clearing equipment and returns all to kitchen after use
* Remind pupils at the beginning of meal not to share food, water or cutlery
* Provide bins for pack lunch rubbish and dispose off ASAP
First Aid
* All classrooms/pods to have own basic first aid kit
* Children supported by pod adults to wipe or apply plaster. Online First aid record then completed
| | • If physical support required eg to put on plaster for younger child – staff member to wear gloves. Wipes |
|---|---|
| | and gloves to be double bagged and disposed of in yellow bins. |
| | • Lead first aider /SLT called to support first aid requiring bodily fluids. PPE to be worn. |
| | • Lead first aider to review first aid log and action contact with parents as NOP of First Aid policy |
| Sports and other manual and cultural activities | Sports Activities |
| | • Wash hands prior to and after activity |
| | • Reduce contact sports activity |
| | • Enforce a 5 metres physical distancing for speed walk and 10 metres for running |
| | • Avoid ball and contact sports |
| | • Avoid using PE equipment likely to be used by numerous pupils - or disinfect after each use |
| | • Promote individual sports activity in order to keep social distancing |
| | • Ask pupils to come to school in their PE kit on, on PE days |
| | Other manual or cultural activities |
| | • Ask pupils to bring their own art equipment or provide each pupils with an individual set |
| | • Avoid exchange of material and equipment between pupils |
| | • Avoid the use of the library and books |
| | • Use the digital screens/medium as much as possible |
| | • Avoid any activities which requires touching shared surfaces and objects |
| | • Avoid contact point activities or activity which requires close contact i.e. dance, gymnastics, contact |
| | sport… |
| Staff | Common Rules |
| | • Teachers and support staff are permitted to wear face coverings at any point in their work place |
| | • No one with any Covid 19 symptoms should be working and should self-isolate |
| | • Staff to use isolation room if waiting to go home |
| | • Respect the 2 metre social distancing at all time |
| | • Single use gloves to only be used during meal time, first aid, playtime, caretaking and cleaning – refer |
| | to other sections of RA for details |
| | • Attend all school briefing and meetings |
| | • Get briefing from Duty Senior Manager or delegated person before starting day/shift |
| | • Avoid using shared equipment if possible or clean after each use i.e. photocopier, computer… |
| | • Use own equipment i.e. pens, laptops and disinfect regularly |
| | • Avoid large group in shared spaces – stagger access times |
| | • Repeat Coronavirus guidance regularly to all groups |
| | • Clean and disinfect your place of work and equipment as often as possible i.e. classroom computer, |
| | desk and chair. |
| | • Each member of staff to have access to PPE and basic cleaning, material and equipment |
| | • Regularly cleanse hands at the start, during the day and at the end of day/shift |
| | • Replenish as required infection control measures in the school such as sanitiser, tissues etc. |
* Systematically use the return to work form for any staff coming back from illness – should be done remotely and digitally and prior to return
* Entry through front door, wash hands, sanitise, temp check, sign in (digita) – check in with duty leader/line manager
Reception and admin staff (as above)
* Reduce visitors to absolute minimum and strictly no volunteers
* Interaction with visitors at reception – use the privacy glass (if in place)
* No sharing of pens and regular disinfection of counter
* Permanent contact with Senior Manager (SM) – via mobile phone – authorised for use during lock down period
* Regular check ups from other team members
* Regularly cleanse hands and work station especially at the start and end of shifts
Catering staff
* Special attention to cleaning and disinfection of any surfaces and equipment with food contact
* Reduce the number of catering personnel – adapt the catering offer accordingly
* Wear face mask single use gloves and aprons during the food prep and service
* Use your own knives as much as possible
* All dirty uniform and laundry to be bagged as soon as the end of the shift for contracted or personal cleaning
Caretaker
* Use own equipment/tools as much as possible or disinfect before and after each use
* Wear single use gloves at all time and change after each tasks
* Respect the 2 metre social distancing at all time and if any task requires more than one individual, the correct procedure (method statement) should be followed and the correct PPE should be used
* Work independently as much as possible
* Clean any surfaces after any contacts – disinfectant wipes or other specialised products
* Wash hands regularly, even if wearing gloves
* Re-evaluation of risks – especially infection – for each tasks taking into considerations the context and environment
Cleaners
* Use own equipment/tools as much as possible or disinfect before and after each use
* Wear single use gloves at all time and change after each tasks
* Wear face mask at all time during cleaning duties
* Wear gloves, face masks, aprons and overshoes to clean and disinfect any suspected infected areas
* Respect the 2 metre social distancing at all time
* Work independently as much as possible
* Clean any surfaces after any contacts – disinfectant wipes or other specialised products
Other building areas
Deliveries
* Wash hands regularly, even if wearing gloves
* Re-evaluation of risks – especially infection – for each tasks taking into considerations the context and environment
Staff Room
* Observe the 2 metre rule with each other at all time
* Stagger the breaks and lunch times – minimise the number of chairs used
* Max numbers in different staff rest rooms – 8/6/4
* No sharing of foods
* Do not eat face to face
* Avoid speaking face to face to avoid saliva droplets
* All cutlery/crockery to be washed immediately after use – hot soapy water or dishwasher
* Clean and sanitise table and chair immediately after use – cleaning product to be made available
* Cover food when using the microwave
Meeting Rooms
* Consider meeting virtually if at all possible – even within the same building
* Use a room able to accommodate the number of participants in order to respect the 2 metres social distancing
* Avoid seating face to face
* Clean and disinfect table, chairs and equipment before and after use
* Ventilate the room before, during and after use
* Avoid use of paper document – use digital screen as much as possible
* Provide tissue and hand sanitiser
* Discard of any rubbish immediately after the meeting
Offices
* Ventilate the room before, during and after use
In shared offices – do not seat face to face
*
* Use own equipment if possible
* Clean and disinfect desk, chairs and equipment before, during after use
Meetings with Parents
* Avoid face to face meetings if possible – use phone calls or IT meetings
* Meet the family outside applying the 2 metres social distancing if possible, and if not follow the ' Meeting Rooms Guidance'
* Reduce numbers of deliveries as much as possible
* All non-catering deliveries to be left at main entrance lobbies
| | • Catering deliveries to be left outside kitchen entrance door – NO DELIVERY DRIVERS SHOULD ENTER THE KITCHEN |
|---|---|
| Contractors | • Cancel all non-essential visits – refer to Premises Guidance document for details • All pre booked contractor which cannot be rearranged should be sent a ‘Self Declaration’ form in advance of the visit and where possible they should have returned in advance. The visitor should also bring the signed form with them to site or will be required to sign a new form upon arrival, if they cannot confirm they are well via this document they will not be allowed on any of our schools |
| Suspected Infection | • First Aid staff including those responsible for sending ill pupils home to be briefed on the signs and symptoms and procedure for informing SM (who) about concerns of COVID19 infection • Brief all staff on the signs and symptoms of COVID19 • Constant monitoring of all pupils and staff during the operating hours • When and if suspected case; o Pupils (1 per room) – follow the ISOLATION PROCESS procedure and Premises Guidance – see separate document o Staff (1 per room) – follow the ISOLATION PROCESS procedure and Premises Guidance – see separate document ➢ Systematically use the return to work form for any staff coming back from illness – should be done remotely and digitally and prior to return |
| Staff shortage | • Inform school Leaders and TLP and consider closing part or all of the school • Premises staff – catering, cleaning and caretaking – inform school Leaders and TLP Estates Central team |
| Fire Evacuation Procedures | • Review Risk Assessment and Premises Fire Evacuation Procedure – share with all staff • Caretaker to ensure all fire doors are unlocked and escape routes are clear at all times • All staff to familiarise themselves with the evacuation route/point identified for the room/area they are using |
Assessor's Recommendations - Additional Control Measures or Actions
| Section | List Actions / Additional Control Measures | Date action |
|---|---|---|
| | | to be carried |
| | | out |
Signed: Headteacher/Head of Department: ....................................................... Date ....................................................
The outcome of this assessment should be shared with the relevant staff
|
Privacy
| Section | Policy Manual Section 01.09 | |
|---|---|---|
| Version/Date | 6.0 / October 2020 | |
| History | Policy prepared | 2003 |
| | Draft (Updated) Policy prepared | 5 February 2009 |
| | Final Policy adopted | 16 February 2009 |
| | Draft Policy prepared | 14 February 2013 |
| | Revised and expanded Policy adopted | 11 February 2016 |
| | Revised policy | October 2019 |
| | Revised policy adopted | October 2020 |
| Review Schedule | Three-yearly or as required | |
| Purpose | The Privacy Policy describes: the collection, use and disclosure of a range of information regarding trustees, staff and funding applicants or enquirers; the procedures for accessing, checking and correcting personal information held by the Trust; and the role of the Privacy Officer. It includes a statement on website terms and conditions for users. | |
Incorporating website terms and conditions
1.0 Privacy Principles
1.1 The Privacy Policy ensures that the collection, use and disclosure of a range of information regarding trustees, staff and funding applicants or enquirers, including the procedures for accessing, checking and correcting personal information 1 held by the Trust (an 'agency'), complies with the Privacy Act 2020 (the Act) and its amendments.
1.2 The twelve principles of the Act are summarised as:
Principles 1-4 - governs the collection of personal information, including the reasons why personal information may be collected, where it may be collected from, and how it is collected.
Principle 5 - governs the way personal information is stored and is designed to protect personal information from unauthorised use or disclosure.
Principle 6 - gives individuals the right to access information about themselves.
Principle 7 - gives individuals the right to correct information about themselves.
1 Personal information is any information about an individual (a living natural person) as long as that individual can be identified.
Principles 8-11 - place restrictions on how people and organisations can use or disclose personal information, including ensuring information is accurate and up-to-date, and that it isn't improperly disclosed.
Principle 12 – governs disclosure of personal information outside of New Zealand.
Principle 13 - governs how "unique identifiers" – such as IR numbers, bank client numbers, driver's licence and passport numbers can be used.
For more details on the twelve principles see www.privacy.org.nz
1.3 The Trust conducts itself in accordance with the Act primarily through these actions:
b) Ensuring information is held securely and in line with the purposes for which the information was collected, with appropriate protections.
a) Deciding what information is needed, and where and how it will be collected.
c) Complying with any access or correction requests received.
e) Appointing a Privacy Officer.
d) Using or disclosing personal information with care.
2.0 Appointment of Privacy Officer
2.1 The Trust appoints the Chief Executive to the position of Privacy Officer.
2.2 For Trust Waikato, the Privacy Officer:
a) will be familiar with the privacy principles in the Privacy Act
b) will be familiar with any other legislation governing what Trust Waikato can and cannot do with personal information
c) deals with any complaints about possible breaches of privacy
d) trains other staff to deal with privacy appropriately
e) ensures the Trust's policies and procedures comply with privacy requirements
f) deals with requests for access to personal information, or correction of personal information
g) acts as a liaison person for Trust Waikato with the Privacy Commissioner.
Further information about the role of the Privacy Officer is at www.privacy.org.nz/howto-comply/privacy-officers/
3.0 Trustee and Staff Information
3.1 The Trust collects and holds personal information about trustees and staff. In relation to this information the following points are noted:
a) Trustees and staff will be advised when private information is being collected and held.
c) The Trust will take all reasonable steps to protect a trustee's or staff member's personal and confidential information and to prevent its unauthorised access or use.
b) Appropriate staff of the Trust, staff of the Trust's payroll administrators and, if necessary, legal and employment advisors will have access to this information for the purposes of contractual matters, reviewing performance, payment and review of salaries and honoraria, maintenance of leave records and consideration of reappointment issues.
d) Personal and confidential information of trustees and staff will disposed of securely when no longer legally required.
f) Information will not be disclosed to any third party without the express authorisation of the staff member or the trustee concerned.
e) Staff and trustees have the right to access personal information held about them and have the right to correct any information held. Such requests will be responded to within 20 working days.
g) Staff and trustees are asked to note that email on Trust computers and computer access at the Trust is not private, and that the content and use of these resources can be monitored.
h) Only information that is required for lawful purpose will be requested from trustees and staff.
4.0 Information regarding Funding Applicants or Enquirers
4.1 The Trust holds a wide range of information about the operation of groups that apply for grants. In addition to information held about a group the Trust also holds personal information setting out the officers of groups together with their contact details. At times the Trust may also hold personal information about the actions of individuals within groups. In relation to this information the following points are noted:
a. When groups submit an online application, they acknowledge a number of key statements regarding the collection and disclosure of group and personal information. These statements are:
Note: Organisations and individuals have the right to check and correct any personal information held by Trust Waikato.
Organisation and personal information collected will be held by the Trust for the purposes of assessing applications and may be shared with other parties in the process of assessing the application or in publishing or making available the results of approved grants.
b. The following statements regarding the purposes of group or personal information collected by the Trust are also contained within the application, which applicants are requested to consider and either 'agree' or 'disagree' with:
ii. the use of group and personal information for research purposes, as approved by the Trust Waikato Privacy Officer.
i. subsequent mailing (postal or electronic mail 2 ) of Trust Waikato information to the group or individual named in the application form
iii. being sent information on behalf of other agencies which, in the opinion of the Privacy Officer, is relevant to the group.
5.0 Privacy Procedures
5.1 The Trust collects information:
b) from the organisation and/or individual through personal contact e.g. through phone calls, letters, the contact form on the Trust Waikato website and/or email,
a) through registrations, applications and associated/supporting documents,
c) from third parties for the purposes of assessing applications and decision making.
5.2 Access to Information
With reference to Section 4.0, above, organisations and individuals will be entitled to have access to only such information as they themselves have provided to the Trust e.g. funding application forms. In addition they will be entitled to request correction of organisational or personal information.
Requests for access to information held by the Trust will be responded to within 20 working days.
The Trust will not disclose personal information to a third party without the consent of the applicant.
5.3 Use of Information
* Corresponding with enquirers to provide requested or authorised services,
Information collected by the Trust will primarily be used for the purpose of:
* Verification of identity in order to provide assistance,
* Consultation with other parties 3 to discuss draft recommendations,
* Assessing funding applications,
* Decision making,
* Research,
* Publishing and making available the results of approved grants,
* Establishing the Trust's funding priorities and developing policies and plans.
2 As provided for in the Unsolicited Electronic Messages Act 2007
3 Refer to the Grants Policy for a list of parties
With reference to Section 4.0, above, in the case of research, consent will be authorised by the organisation and/or individual(s) concerned through inclusion of a statement in all Trust application forms.
Trustees and staff will take all reasonable steps to protect an applicant's organisational and/or individual's personal and confidential information and to prevent its unauthorised access or use.
Personal and confidential information collected on organisations and individuals will be disposed of securely when no longer legally required.
5.4 Unsolicited Electronic Messages
For those organisations who have agreed to mailing of Trust Waikato or other relevant information as provided for under Section 4.0, above, the Trust will include an unsubscribe option in any electronic messages of a general nature, such as notification of closing round dates, and will remove an organisation and/or person from receiving such emails within five days of receiving notification.
6.0 Data Breach
A data breach is when private and confidential information is released into an unsecured environment. This usually means that the information becomes publicly available and could be used for personal gain, or to cause harm to the Trust.
6.1 Trust Waikato will take steps to minimise the likelihood of a data or privacy breach by having policy in place to comply with all principles of the Privacy Act 2020, including but not limited to, the collection, use and disposal of private and confidential information. The Trust will also engage an external IT provider (i.e. SkyPoint) to advise and ensure our network is secure.
6.2 If a data breach is suspected this should be reported to the Chief Executive, if not possible then the Business Manager. The Business Continuity Plan (BCP) should be referred to for steps when a data or privacy breach is suspected.
6.3 In cases where the breach poses a risk of serious harm, this will be reported to the Privacy Commissioner as required under the Privacy Act 2020.
7.0 Cross-border Protection
7.1 Trust Waikato will only disclose personal information to overseas entities when required for Trust business purposes.
7.2 Trust Waikato will take reasonable steps to ensure that personal information sent overseas is protected by comparable privacy standards. When the Trust engages with an overseas service provider, the Privacy Act 2020 outlines that they should comply with New Zealand Privacy Laws.
8.0 Website Privacy
8.1 The Privacy policy will be included on the Trust Waikato website, including a link on all pages. Website terms and conditions are included in Appendix One.
8.2 This is intended to help website visitors understand the information collected through their use of the website and to reassure them that the principles of the Privacy Act will be applied.
9.0 Related Policies and Procedures
9.1 For Trustees and staff, the following Trust Waikato policies and procedures should be read in conjunction with this Privacy Policy:
Trust Waikato Governance Manual Section 9.0 Disclosures of Interest Section 10 Code of Conduct Appendix Four Electronic Media Guidelines Human Resources Policy Staff Code of Conduct Internet and Email Policy Complaints Policy Risk Management Policy Business Continuity Policy Whistleblower Policy
Appendix One
Website Terms and Conditions
Privacy Policy
The Privacy Policy describes: the collection, use and disclosure of a range of information regarding trustees, staff and funding applicants or enquirers; the procedures for accessing, checking and correcting personal information held by the Trust; and the role of the Privacy Officer. It includes a statement on website terms and conditions for users.
The Trust will safeguard your personal information and your rights under the Privacy Act 2020 with regard to the collection, storage and use of, and access to, any personal information.
Use of this Website
* You can access and browse our site without disclosing your personal information. Users will be advised that the website uses cookies and will be asked to agree to cookies use.
o your server IP address,
* If you visit our website to read or download information, our web server makes a record of your visit and logs the following information for statistical purposes:
o the date and time of your visit,
o the browser you are viewing the site with,
o the pages accessed and documents you downloaded,
o the referring URL/website, for example a search engine.
We use an analytical tool to collect and view non-personal visitor statistics so we can discover what information is most and least accessed, and to help make our site more useful.
We collect personal information when you:
* Communicate with us through an email address.
* Fill in an online form through our website, register in the grantee portal (Fluxx) or enquire about using a community room through the 'new user request form'.
Your details will only be used for the purpose for which you have provided them and will never be added to any mailing list without your prior permission. We will not use or disclose your details to a third-party without your consent.
This website uses cookies (text files placed on your computer to collect standard internet log and visitor behaviour in an anonymous ie non-personal form) to temporarily store information to assist your browsing experience. You have the ability to accept or decline cookies by modifying the settings on your computer or mobile device. If you disable cookies then you may not be able to subscribe to a service. Users will be advised that the website uses cookies and will be asked to agree to cookies use.
The website is hosted on Wix.com and their privacy policy is available here:
https://www.wix.com/about/privacy.
This website may provide links and pointers to internet sites maintained by third parties, which are not under our control. We are not responsible for the contents and operation of any linked sites.
Online Funding Application
Trust Waikato only accepts online grant application requests and provides this facility through Fluxx.
The online application process begins with an online registration. Each group/individual combination will need an individual registration. On receipt of your registration request we will confirm your username and password and activate your account. You should keep this information safe not disclose it. If you require assistance with your account then contact the Trust Waikato office. Disclosure of your password to the staff member is NOT required.
Fluxx also has a Privacy Policy which can be viewed at https://www.fluxx.io/privacy-policy.
Online Room Bookings
Trust Waikato uses a third party online system 'Skedda' to manage community room bookings. Following an individual completing the 'new user request form' on the website they will be registered to use the 'Skedda' booking system.
The 'Skedda' system will hold the following personal information about an individual.
* Organisation
* Name
* Type of organisation
* Phone Number
* Email
Skedda also has a Privacy Policy which can be viewed at https://support.skedda.com/en/articles/663120-privacy-policy-for-venues
By using this website you are agreeing to these terms and conditions.
If you do not wish to use this website please contact the Trust Office:
Trust Waikato
4 Little London Lane
P O Box 391 Hamilton 3240
Hamilton
Phone 0800 436 628 or 07 838 2660
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The Road to Better System Performance – Enabling Factors and Stumbling Blocks to Improve Overall Quality of Care (AKA From Volume to Value – Aspiration Meets Reality)
Robert Berenson M.D. Institute Fellow, Urban Institute firstname.lastname@example.org
Zi Health Services Research Conference 2017: Learning from the Regions – Benefit for all? Berlin 13 Sept. 20017
URBAN INSTITUTE
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The presentation will:
* Review the roots and concepts underlying "valuebased payment" in the US;
* Explore the various conceptual and operational challenges in reasonably assessing value;
* Provide and discuss a broadly used US scheme of the continuum of alternative payment models -and why it is flawed
* Conclude with a contrarian viewpoint on value and how to achieve it
Geographic Variations in Spending
Dartmouth research and the Dartmouth Atlas represent seminal work exploring spending variations in Medicare and demonstrating large cost variations with little or no differences in quality or patient experience
When properly adjusted for approved variations in input prices, graduate education, etc., there is a 30% variation in spending (service use) between the 10 th and 90 th percentile across US regions
But in the US multi-payer context, things are always more complicated
* For private insurers who have to negotiate prices with providers (hospitals, physicians, and vertically integrated health care systems), prices, rather than service use drive spending variations
* Prices for hospital services, such as DRGs, vary by 100% between the 10 th and 90 th percentile – due to provider concentration and more negotiating leverage
* Hospital prices charged to private insurers exceed Medicare prices by a lot more than physician fees
Paying for value, not volume, is one of the few policy areas that gets bipartisan political support
* "The most powerful way to reduce costs (and make room to expand coverage) is to shift away from 'volume-based' reimbursement (the more you do, the more money you make) to 'value-based' reimbursement." – Bill Frist, M.D., then the Republican leader of the Senate during debate on the Affordable Care Act (AKA Obamacare).
* "Doctors and hospitals will have to be paid differently. Not simply for procedures – the more they do the more they make – but for outcomes." – Dr. Tim Johnson, ABC News, the night the ACA passed Congress
The failure of the "sustainable growth rate" was a catalyst for measuring performance at the hospital/clinician level
* The SGR provided a spending cap for physician services, based on both Gross Domestic Product and population growth. If spending exceeded the target, fee increases were then supposed to be limited to pay back the excess
* The SGR did not work – for many years service volume growth was not restrained, and the SGR-mandated fee cuts were postponed each year
– "The tragedy of the commons"
* Policy makers concluded that value has to be measured at the individual, not aggregate, level to avoid perverse behavior
The Triple Aim
* "The Institute for Healthcare Improvement's Triple Aim is a framework that describes an approach to optimizing health system performance. It is IHI's belief that new designs must be developed to simultaneously pursue three dimensions, which we call the "Triple Aim":
– Improving the patient experience of care (including quality and satisfaction);
– Improving the health of populations; and
– Reducing the per capita cost of health care."
– IHI website
Policy priorities in Medicare as reflected in legislation over 10 years
* Pay-for-performance (labeled "value-based purchasing") for most provider systems, including individual physicians
* New payment models to be tested in demonstrations: e.g., shared savings, bundled episodes, mixed fee schedule and "capitation"
* New organizational delivery models, esp. "accountable care organizations" and patientcentered medical homes"
Issues in Measuring Value in Health Care
There is a disagreement over the role of measurement in value-based payment
* For many, value-based payment means literally measuring quality and costs and directly rewarding the result, where Quality/Costs = Value
* For others, it mostly means adopting payment methods that have a greater demonstrated relationship to desired outcomes (the Triple Aim) and using measures more opportunistically, relying more on the design of payment to affect value
What do we really mean by value?
* Value = Quality/Costs
* But there is no quantitative precision to the value equation
– For example, is value increased when quality increases at a higher cost?
* So "value" more casually actually is used to suggest getting a "bigger bang for the buck"
The quality numerator
* Quality is measured differently for each measure of interest. e.g., % compliance with a quality standard, mortality rate for a condition or intervention. There is no common metric like quality-adjusted life years (QALYS) as used in cost-effectiveness analysis
* There are huge measure gaps such that what we do measure may not reflect aggregate quality at all
– Important gaps include diagnosis accuracy, appropriateness of procedures and other treatments, management patient with multiple chronic conditions
The cost denominator
* Costs are usually measured as dollars spent but can also represent the rate of increase in dollars spent (we often refer to "bending the curve" of health spending
* And even with something as seemingly straightforward as dollars spent, there are disagreements on how to measure and report costs (beyond the common error in the US of mistaking charges or payments with actual costs)
The guiding mantra – "If you can't measure it, you can't manage it"
* And its close cousin, "If something… cannot be measured, it cannot be improved."
* Called a "truism," the quote is commonly attributed to W. Edwards Deming, who was a widely revered expert in management and management science, and instrumental in the economic recovery and success of Japan after WWII.
What Deming actually wrote and believed
* "It is wrong to suppose that if you can't measure it, you can't manage it – a costly myth."
– The New Economics, 1994, page 35.
* So not just taken out of context, but an overt misquote – or in Trumpian reality, "alternative facts"
* Other consistent Deming quotes (of many available):
– "The most important figures one needs for management are unknown or unknowable, but successful management must nevertheless take account of them." Out of the Crisis, 1982, p 121
The dueling slogans
* "If you can't measure it, you can't manage it"
* "Not everything that can be counted counts, and not everything that counts can be counted."
– Commonly attributed to Albert Einstein, it was actually coined by a sociologist named William Bruce Cameron, writing after Einstein had died
No wonder the US doesn't do evidence-based policy making
It can't even get quotes right
It is important to distinguish measures for public reporting & P4P and for internal QI
* Of course, for internal process improvement, having data is often highly desirable or even necessary – both outcomes and to measure reliability of the processes
* My concern is about the public policy infatuation with public reporting and P4P, not with how organizations use measurement as part of internal efforts to produce reliable processes (what Deming actually emphasized)
Conceptual concerns about P4P
* P4P is too often presented as having "compelling logic" and "face validity" – not so fast
* Behavioral economists now have started to weigh in, arguing that P4P can "crowd out" intrinsic motivation, with an overall negative impact
* Across education, health care, other sectors, concern about "teaching to the test"
* Together, these two could result in overall performance decline even if incentivized performance improves -- we measure much less than what we care about
Accurate measurement is difficult
* Even relying on a seemingly simple and important metric, such as a hospital's readmission rate, can be misleading – this is a policy priority in Medicare
– Like when a health care system successfully reduces both readmissions and admissions – the change in the ratio – the readmission rate -- may not reflect its success
– Like when hospitals serving very different patient populations in geographic areas with different resources are compared to each other in a "tournament" P4P
– Like when there may be an opportunity for hospitals to engage in "regulatory evasion" by calling an admission an "observation" stay (this one is in dispute in fact but not in theory)
Other operational challenges with P4P
* Major gaps in available measures, which rely largely on claims data, with no other reliable and affordable sources on the horizon
* Small numbers, often making statistically valid inferences of individual clinician performance problematic
* High administrative costs – a Health Affairs (Casalino and others, Mar, 2016) paper estimated $15.4 billion/year just for physician practices' reporting
* Provider "gaming" behavior in response to P4P, to the detriment of patient care, e.g.,
– Avoiding complex patients, when inadequate case-mix adjustment
– An increase in 31-day mortality rates
Proliferation of "information brokers" which rate physicians, hospitals and health plans
* But there are serious questions about validity and reliability of these ratings and rankings
* There was disagreement across four prominent rating systems, with each identifying different sets of high- and low-performing hospitals – limited overlaps across the 4 ratings
– each evaluation system uses its own rating methods, has a different focus to its ratings, and stresses different measures – Austin, et al. Health Affairs, Mar. 2015
There's a growing body of good studies and lit reviews finding that hospital and physician P4P don't produce outcomes better than secular trend. What's not clear is how much public reporting -- a form of P4P in its possible impact on moving market share -contributes to the improved secular trend
Nevertheless, despite a raft of conceptual and operational concerns, and the unimpressive empirical findings, Congress has increased the importance of and reliance on P4P in payment policy
The current policy infatuation with public reporting and, especially, P4P has lead to this perverse policy result:
What we measure publically is considered important and demanding attention while
What we can't or don't measure is marginalized or ignored altogether -- like diagnosis errors, a largely ignored quality problem or the workforce needs for an aging population
How to improve the use of measurement in public policy (from Berenson, Pronovost, and Krumholz, 2013)
* Use measures strategically as part of major quality improvement initiatives, not as ends in themselves;
* Measure at the level of the health care system and then the organization, not the clinician ("information brokers" do that);
* Expedite moving from processes to outcomes (but not easy);
* Place greater emphasis on patient experience and patientreported outcome measures as important in themselves;
* Invest more in the "basic science" of measurement development, tasking a single entity with defining standards for measuring and reporting performance:
– to improve the validity and comparability of publicly-reported quality data and
– to anticipate and prevent unintended adverse consequences
URBAN INSTITUTE
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The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA)
The MACRA Quid Pro Quo for repeal of the Sustainable Growth Rate
* The actual substantial cost of the not reducing physician fees by >20% was paid for through a long-term schedule of nominal fee increases
* The quid pro quo in the legislation was moving payment from "volume to value"
* There are two arms of the strategy – the Meritbased Incentive Payment System and Alternative Payment Models. Clinicians (or their organizations) are given a choice
MIPS assessment categories
* Quality (30%)
* Resource Use (30%)
* Electronic Health Record Performance (25%)
* Clinical Practice Improvement Activities (15%)
– Such as expanding practice areas, population management, care coordination, beneficiary engagement, patient safety (percentages when fully phased in in 2022)
MIPS payment adjustments
* Those performing at 0-25% of target thresholds get maximum negative adjustment
* 2019: - 4%
* 2020: - 5%
* 2021: - 7%
* 2022: - 9%
* Positive adjustments
– Maximum: 3 X annual cap for negative adjustment – so theoretically as much as 27% bonuses (I am not kidding)
– Eligible for additional payment if 25% above performance threshold
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URBAN INSTITUTE
* The negative adjustments basically fund the bonuses
The food here is terrible -and such small portions
-- a 1920's joke (used by Woody Allen in "Annie Hall")
Alternative Payment Models
CMS/LAN APM Framework
Some Observations About the CMS/LAN* Framework
* Emphasizes theoretical incentives in payment methods, mostly ignoring the design and operational issues that working together influence clinician behavior
* Assumes that value derives only from 1) use of quality measures and 2) financial risk-bearing
* In short, the Framework that actually classifies 28 payment models is useful for presenting a continuum of payment method structural elements (measures and risk) but errs in implying that value follows the same continuum
* Any payment method can be designed to produce more or less value – and that includes classic fee-for-service, in the US case, the Medicare Physician Fee Schedule
* LAN = Learning Action Network
Attributes of fee schedules (for example)
Advantages
* Rewards activity, industriousness
* Theoretically can target payment to promote desired behavior
* Implicitly does case-mix adjustment
* Commonly used by payers and physicians
Disadvantages
* Can produce too much activity, physician-induced demand
* Maintains fragmented care provided in silos
* High administrative and transaction costs
* What is not defined as payable is marginalized
* Complexity makes it susceptible to gaming and to fraud
* Susceptible to pricing distortions that alter impact
G. B. Shaw, the Doctor's Dilemma (1909):
"That any sane nation, having observed that you could provide for the supply of bread by giving bakers a pecuniary interest in baking for you, should go on to give a surgeon a pecuniary interest in cutting off your leg, is enough to make one despair of political humanity. But that is precisely what we have done. And the more appalling the mutilation, the more the mutilator is paid. He who corrects the ingrowing toenail receives a few shillings: he who cuts your inside out receives hundreds of guineas, except when he does it to a poor person for practice."
Alternatives to P4P Would Emphasize
* Reducing the power of the incentives in volumebased payment that produce too much care instead of trying to counter these dominant "FFS" incentives with small, P4P dollars
* Alternative Payment Models potentially try to do that, but most are thin layers on top of FFS
* "The most powerful methods for reducing medical harm are: feedback, learning from the best, and working in collaboration"
– Lucian Leape, M.D. commenting on the Michigan Keystone Project eliminating CLABSI in MI hospitals
URBAN INSTITUTE
Thank you
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From Troubleshooting to EMR Optimization: IT Support in a General Practice Setting
Marianne Tolar 1 and Ellen Balka 1,2
1 Assessment of Technology in Context Design Lab, School of Communication, Simon Fraser University, Burnaby BC, Canada
2 Centre for Clinical Epidemiology & Evaluation, Vancouver BC, Canada
Abstract
In this paper the use of an electronic medical record (EMR) system in a general practice setting is analyzed. The concept of infrastructure helps shed light on its supposed role of invisibly supporting the work practices of medical and administrative personnel. An ethnographic case study at a Canadian Community Health Center has been conducted following an action research approach. The researcher assumed the role of IT support in a situation where the EMR system was displaying technical problems after an update of the software. Her role developed from troubleshooting IT issues to EMR training and IT education, and finally she was also increasingly involved in EMR optimization. Our research provides in depth insights into the researcher's role as a mediator between the medical work and the technical tool within the larger context of system design, which, we suggest, has implications for design of programs to support the introduction of EMRs. Although those trained in health and medical informatics are aware of this need, research findings presented here suggest that this is often overlooked in funding programs and project implementation.
Keywords: Computerized Medical Records Systems; Community Health Centers; Action Research; Workplace Ethnography; Infrastructure; IT Support
1 Introduction
In this paper we follow the path of a researcher who, in partnership with a Community Health Center (CHC) in Canada, 1 simultaneously studied and supported work practices related to an electronic medical record (EMR) system that had been in use for a few years. The software used in this clinic we studied—which we refer to in this paper as EMR_sys in order to protect anonymity of the clinic and software vendor—was used for the management of patient-related data, appointment scheduling, and messaging between clinicians and medical office assistants (MOA). This paper reports results from a 2 year study of EMR_sys which had as one of its goals documenting challenges related to enhanced use of electronic records for management of patients with multiple chronic conditions.
1 The work presented was carried out within the project "Knowledge to Action: Supporting Continuity of Care and Practice", financed by the Canadian Institutes of Health Research and Canada Health Infoway.
Anchored within a socio-technical perspective, which "examines the design, uses, and consequences of information and communication technologies in ways that take into account their interaction with institutional and organizational contexts" [1, p. 217] our study was rooted in the idea that standard views of technology as tools have led to underestimations of costs and complexities of computerization and overestimates of the generalizability of systems between settings and groups and that workable systems are "supported by strong sociotechnical infrastructure" [1, p. 228]. Our research, which drew on theoretical insights from science, technology and society studies, took Star and Ruhleder's (1996) insight that information technology is often viewed as infrastructure, and taken for granted,
receiving critical scrutiny only when it fails [2], as a starting point.
The underlying premise of our research was that the EMR system was a kind of infrastructure that is "by definition invisible, part of the background for other kinds of work" [3, p. 380]. It was supposed to be ready-athand so that it could be drawn upon to make enhanced use of the data gathered during patient visits. Although much popular rhetoric about EMR systems implies that the EMRs, once installed do the work [4], infrastructure studies [3] as well as scholarship concerned with appropriation work [5] and configurability [6] suggest that human intervention is often required to make such infrastructures work [5]. Our theoretical orientation suggested that as the clinic which served as our study site began using advanced features of the EMR to support management of patients with chronic diseases, that strong sociotechnical infrastructures would be required to 'make the technology work.' Our empirical goal was to document what was required to 'make the technology work.'
Our research was undertaken within an action research framework. Designed to bridge the gap between theory, research, and practice [7], action research generates research about a social system while trying to change it [8]. Action research is particularly well suited to research aimed at problem solving and improvement [8]. Our action research orientation, and our research group's commitment to making useful contributions to organizations which serve as our research partners were reflected in our research design (described in more detail below in the methods section) which embedded a member of our research team 2 in the clinical setting, where she could help the clinic carry out its goals of using advanced EMR features for management of patients with chronic diseases, and at the same time could document what was required to 'make the technology work.'
1.1 The Research Setting
The clinic that served as our research partner and field site is a community health center (CHC) in Vancouver, British Columbia. In the CHC clinical staff (six physicians, one clinical pharmacist, and one nurse prac-
2 Initially this role was filled by a staff member who left the project after one year. Having processed all of her data (see methods section below), she subsequently assumed a role as a support person for the clinic. She is in the following referred to as RA1. Her role in research was taken over by the first author of this paper who within this text is referred to as RA2. As project PI, the second author has developed and maintained a relationship with the clinic, including regular meetings with senior staff, over a decade, and provided oversight of data collection and analysis.
titioner) work together with the MOAs, the medical office administrator, and the executive director. The clinic also has a long tradition of employing and training students for clinical as well as administrative tasks. The CHC where we carried out our research differs somewhat from other primary health care centers. In British Columbia, most primary health care clinics are run as private businesses, on a fee for service basis, and practices can have only one doctor or a large clinic can have as many as 40 or 50 doctors. Although the size of the clinic which served as our study site and the fact that virtually all of the doctors worked less than full time was not atypical, the fact that the doctors worked on a salaried basis rather than a fee for service, and the clinic received a grant from the health authority (a regional health service management and delivery body which in turn received funds from the provincial Ministry of Health) based on the number of patients they served and the type of services they provided is not typical. The clinic does, however, represent a model of care delivery which the province would like to see increased.
The EMR system (EMR_sys) has been used since its initial implementation in 2004 (see [9] for more information about the early years of the implementation). The clinic was one of the early adopters of EMR_sys. At the time that the clinic began using EMR_sys, very few clinics in the province were computerized. The clinic had received funding through an early government funding scheme to purchase EMR_sys, and the vendor had much to gain in doing a 'good implementation' in that it was likely—and in fact did become the case—that subsequent government funding schemes would identify a handful of EMR vendors' systems which were approved for purchase with government funds. As an early adopter of EMR_sys with considerable future business riding on the success of the initial implementation, in the early days of the clinic's implementation of EMR_sys, technical support was quite good. However, by the time the project described here began, EMR_sys had gained considerable market share (in part as a result of having been selected as an approved vendor under a government funding scheme in a more populated province). The EMR_sys company had grown quickly, and technical support had, arguably, suffered.
The EMR system supports the storage and retrieval of administrative and clinical information (diagnoses, medication, lab results, etc.), the documentation of patient encounters as well as scheduling of appointments and billing. At the time of this research the clinic had already established a high level of routine in the use of the EMR system. While they started off basically keeping up documentation practices from the times when paper
records had still been in place they had gradually taken up some of the more enhanced functionality of the EMR system. For example, they had tailored the messaging function to their requirements, made use of automatic alerts and reminders, built-in checklists for patient education, and printouts of flow-sheets for the monitoring of specific parameters for chronic disease patients. The clinic is continuously striving to improve their practice, so adaptations are regularly made according to evolving needs. While many smaller changes were informally addressed, the clinic followed a PDSA (Plan – Do – Study – Act) approach for some of the major changes. This allowed them to try, assess and adapt or discard changes in a focused but versatile manner.
At the start of the project reported here, 3 EMR_sys had just gone through a major software update. After this update several problems occurred (such as repeated freezing and crashing of the system), and some of the functions of the software had changed. Consequently, at the start of the 2 year project discussed here, instead of thinking about how to use stored data for secondary purposes the staff at the CHC had to address IT problems while struggling to keep up their work of patient care. As staff struggled with getting the system upgrade to work, the supposedly invisible infrastructure became visible. "As long as the technologies serve their designated purposes, they remain invisible to the user, but when they fail, the interdependencies among work tasks and IT tools make the infrastructure failure a primary concern of workers" [10, p. 449]. In the aftermath of the system upgrade, RA1 came to be an important resource that personnel at the CHC turned to whenever they encountered problems with the system, and through this process RA1 took on the role of IT support.
Generally, the challenges the clinic encountered with EMR_sys could be classified as problems related to the broader hardware and software environment (e.g., driver problems, issues arising when one part of the system updated or failed, etc.), and problems related to design and use of EMR_sys (for example, that a feature did not work as it was supposed to, or that the clinic wished to carry out a particular task which seemed like it ought to be possible, but a macro had to be written before the task could be performed). In her capacity as a technical support person, RA1 engaged in varied activities from troubleshooting to determine what the source of a problem was (which often required significant ad-
3 The research project reported here is the most recent of several projects members of our research group have carried out with this clinic. Our research collaboration with the clinic began in 2003, prior to the clinic's initial purchase and installation of electronic patient record software. For additional information about this clinic and its electronic record implementations, please see [9-14].
vanced computing knowledge), to writing macros, and reviewing problems identified by clinicians (e.g., when patients known to have a specific chronic disease did not appear in a search that should have yielded their name in the search results) and determining why they had occurred (in the example above, usually because the patient's condition had been coded in the record in a manner that was incompatible with how the parameters for a search written into a macro).
Sometimes problems with EMR_sys could be easily addressed—for example, by re-booting EMR_sys when it froze. However, often, when the clinic encountered a problem related to EMR_sys, ample troubleshooting had to occur before it was clear that the problem was an EMR_sys software problem (as opposed, for example, to a problem with server software, or a device such as a printer). This was particularly true with respect to system breakdowns, and RA1 spent ample time tracking down the source of a problem, and convincing the responsible party that they (as opposed to another provider) were responsible for a fix.
The process of making changes to the EMR_sys hence varied with the nature of the problem. Some fixes were easy and of a largely social nature (for example, when it became clear that the system had to be regularly re-booted, RA1 worked with clinic staff to make practice changes so this occurred). In other instances, RA1 wrote macros so that searches could be carried out (e.g., that all patients with type II diabetes could be identified), and in some instances, RA1 spent hours on the phone with staff—often senior staff—at EMR_sys outlining a problem, documenting a problem (to prove it could not be fixed at the clinic), and negotiating to have a bug fix undertaken by staff at EMR_sys.
1.2 Overview of Paper
This paper provides insights into the job of IT support in the setting described, which is a rather unexplored area in IT work [11]. IT support has been identified as one important factor to support the implementation and efficient use of hospital information systems (HIS) and is used as one of the performance indicators for HIS benchmarking [17]. It has been pointed out that local technical support is important within the complex IT infrastructure in hospitals [18]. Also for the primary care sector, some studies suggest that IT support is crucial, however not always in a formalized role within the organization. For example, an 'in-house problem solver' can be instrumental in realizing the most benefits of a newly introduced EMR system in family practice, facilitating the process of EMR adoption by developing an intimate knowledge of the EMR system and providing
colleagues with guidance and assistance when problems arise [19]. Community health centers use EMR systems in an effort to improve the efficiency of care delivery to an increasingly complex patient population. It has been found that in the context of EMR implementation within a network of urban community health centers "constrained organizational resources for training and ongoing IT support were widely noted as challenges that may have exacerbated, or precluded early resolution of, efficiency issues" [20, p. 807].
While there have been numerous evaluation studies of EMRs in primary care and also a few considering the role of IT support, education etc., we have found no other studies which have yielded the detailed insights we report below, about the nature of IT support required to achieve the benefits of EMRs associated with secondary use of clinical data for management of patients with chronic diseases. The strength of our findings lies in the contribution they make in rendering visible the nature of often invisible work which must be performed to achieve the benefits of advanced features of EMRs for management of chronic diseases. Our findings stress the need for IT support in health informatics settings, and can be used as a basis for developing funding policies for government programs aimed at increasing the uptake of EMRs, and can contribute to the development of job descriptions for IT support staff in primary healthcare settings.
In the next section of the paper, we provide an overview of the methods used in carrying out our study. In section 3, we highlight characteristics of IT infrastructure by following RA1 in her role of IT support in a situation where the breakdown of the infrastructure brings to light some of the tasks that are otherwise hidden to the user. Each sub-section addresses a different aspect of IT support which was required and performed in the context of 'getting the system to work.' We end with a discussion of our findings (section 4) and conclusions (section 5).
2 Methods
Research reported here has been undertaken within an action research framework, described above. Initially, a Master's prepared research assistant (RA1) was hired to fill the position of embedded researcher, which was to consist on the one hand of providing technical support to the clinic as they attempted to 'make EMR_sys work' for chronic disease management, and on the other hand, to serve as an ethnographic research assistant, documenting issues and challenges with EMR_sys as the clinic went through the process of using advanced features of EMR_sys for management of patients with chronic diseases. In this capacity, RA1 documented her work (e.g., wrote extensive field notes, with her reflections on the events recorded separately), imported data into NVivo (qualitative data analysis software), coded the data, and performed initial analysis of the data. The collected data consisted of extensive observation and informal interviews that focused on documenting end user's difficulties after the system update. An ethnographic approach was taken because it often provides "a much better means of anticipating the dynamic effects on work organization" [21, p. 21]. RA1 was present at the CHC for 9 days a month on average, over 9 months from August 2008 to April 2009. After that period, RA1 was still available for clinic personnel as an IT consultant on a contract basis until she finally left that role in July 2010.
In the second phase of the study that started in July 2009 the first author of this paper (RA2) carried on with the research. 4 She continued to do participant observations of the work practices at the CHC and was present at the CHC for four days a month on average, over eighteen months until December 2010. She used the data collected by RA1 and undertook a second cycle of analysis, performing her own coding of the material in NVivo to get a thorough understanding of the research that has already been performed and carry on with the analysis. As the technical issues with EMR_sys had become less and RA1 kept on providing IT support to the CHC, RA2 was able to get back to the original focus of the research project in her work, i.e. the enhanced usage of the EMR system for chronic disease management. In that respect she performed participant observations of work practices of doctors using the system and of staff meetings. Observation protocols were entered into NVivo and coded together with the previously collected material. Additionally, to capture the opinions and experiences of medical and administrative staff, between April and October 2010 RA2 conducted qualitative interviews with four of the six doctors in the CHC, the clinical pharmacist, the nurse practitioner, two of the MOAs, the executive director, as well as with RA1 to include her reflections of her role as IT support. These interviews covered both topics, issues of IT support as well as the secondary usage of EMR data for chronic disease management. The interviews were recorded and transcribed verbatim. They were also entered into and coded using NVivo.
Research reported here draws on the observation
4 In the following text that focuses on the tasks of IT support, any mention of "RA1" refers to the first researcher who filled the action-researcher role, and not to the first author of this paper (who is referred to as RA2).
notes taken by RA1 including her comments on experiences in her role as IT support person, and on the interviews that have been conducted by RA2. Citations from the material that are used below are coded OBS and provide the date of the observation (for observation notes taken by RA1) and INT (for quotes from transcripts of interviews conducted by RA2). Interviews used include those with three of the doctors (DOC1, 4, and 6), the executive director (EXDIR), the clinical pharmacist (CP), and RA1. Extensive quotes from the collected material (reflections of RA1 in her observation notes as well as excerpts from interview transcripts) are provided in the following as to give the study participants a voice and reflect their experiences and bring them 'alive'.
3 Results
During her time at the CHC RA1 undertook several tasks that can roughly be grouped into three categories of 1) IT troubleshooting, 2) EMR optimization, and 3) EMR training and IT education. IT troubleshooting referred to dealing with all kinds of technical problems like the freezing of the system, whereas EMR optimization was more focused on improving the software as a tool, for example by making requisitions easier. Asked about the changes of her tasks over time, RA1 answers:
"I think when I first started there it was more IT support because when I first got there they had just gone through an upgrade. And so a lot of it was [...] troubleshooting issues of their upgrade. And then after a while [...] they became more comfortable with the upgrade and those issues did not come up as often. [...] My IT support I guess became more EMR optimization. [...] Doctors would come up to me and ask 'Can the EMR do this?' [...] And often it could and they just did not know that it could. And so then I could show them how" (INTRA1 0428).
When her role as a researcher at the clinic ended, RA1 continued supporting the personnel on a contract basis in what she described as the role of an IT consultant. While the office manager took over a lot of the troubleshooting tasks she had performed in her capacity as action researcher, and one of the doctors took on the endeavour of EMR optimization, they both referred back to RA1 when they needed her input. It was not clear however who would be in charge of the training or education about the EMR and its functionality in the absence of RA1. Tasks associated with ongoing education about the EMR and the whole IT infrastructure had been taken on more informally, in response to the need of the clinical personnel to understand the software and its capacities, and also to keep up with changes after upgrades. In the following these three sections, each of the categories of tasks—IT troubleshooting, EMR optimization, and EMR training and IT education will be described in greater detail.
3.1 Troubleshooting IT issues
In her role as an IT troubleshooter RA1was confronted with a growing number of technical problems around EMR_sys and the IT environment in which it was embedded. Her tasks included logging issues which arose with EMR_sys; figuring out and understanding problems; finding solutions; communicating with the vendor and other parties; and communicating the status of issues back to users. Each of these roles is explicated below.
Logging issues The CHC is staffed by medical and other health practitioners and administrative staff, none of whom had been given the task of managing or maintaining the EMR. Hence, RA1 became the contact point person when problems with EMR_sys were encountered. Personnel turned to her when the system crashed, when they were not able to log on or when they could just not get their work done because EMR_sys was not providing the service it was supposed to provide. RA1 described how the personnel at the CHC would come up to her and tell her about issues that they felt should be reported to the software vendor. She says that she collected them and started to keep a spreadsheet of issues that were reported to her (INTRA1 0428).
Many of the issues were communicated to RA1 while she was at the CHC. However as she was not continuously present in the clinic (because her job comprised both action—in the clinic—and research—at the university) people would also turn to her by e-mail and occasionally by phone. A specific e-mail account was set up in the messaging system that was called "EMR_sys issues" with the idea that it would provide a mechanism for capturing problems with the system, and communicating those problems to RA1 who would then have a record of the problems. The EMR_sys issues e-mail account on the one hand served as an action list for the technical support tasks that needed to be done, and on the other hand ensured that the issues that arose and needed to be addressed were captured for research purposes.
While RA1 was originally supposed to deal only with problems that were related to EMR_sys, she was increasingly confronted with more general technical issues that had to do with the hardware setup, transmission of documents between systems, or the configuration of user accounts that arose in relation to the broader environment in which the EMR_sys system was installed and operating. This may be due to the fact that for the personnel at the CHC it did not make a difference if the problems were related to the software or to other components of the system—if a problem arose that interrupted their work practices, they saw it as an EMR_sys problem, and it was often initially unclear to the end user whether the origin of the problems was hardware, software, configuration, or some combination of all of the above. In addition, because no clinic staff member was responsible for technical support, RA1 became the most visible face of technical support in the clinic.
Figuring out and understanding problems The CHC personnel approached RA1 with different kinds of issues. Sometimes they were related to the same underlying problem (e.g., the system being slow and freezing because they were running out of storage space on the server). On other occasions seemingly related problems were actually different. So RA1 not only logged issues but also had to think about possible sources and understand the problem at hand in enough detail that she could either solve it herself or communicate it to the responsible actors accordingly. This was often challenging because it typically was not clear where in the system—in hardware (e.g., the network or a client), or software (e.g., due to a bug or problem with a setting)—the problem existed. Consequently, figuring out and understanding problems required RA1 help people at the CHC formulate problems such that both she and clinic staff could understand. She did this for example by taking the time to talking through problems with the staff and asking clarifying questions. RA1 reported about the relief that this way of dealing with problems provided for the personnel.
RA1 had to develop intimate knowledge of EMR_sys and the functionality it offered as well as the interactions with other software and hardware components. She used EMR_sys herself and tried to reconstruct errors that occurred, or she explored the system by working on fake patients that had been created for that purpose. She consulted the online help forum of the vendor and checked on the internet for insights about more general technical problems. She performed what has been called 'diagnostic work' [22]. "When faced with anything out of the ordinary, faulty or suspicious, the work of determining and categorising the trouble, and scoping for what to do about it (if anything) often go hand in hand" [22, p.110].
RA1 talked about the hardware issues the CHC was facing when she first arrived there. Confronted with the system being slow and freezing repeatedly, she had to figure out what actually caused the problems. She says that at that point the hardware provider came into the pic- ture. It would happen occasionally that RA1 would be directed back and forth between the hardware and EMR vendors when she reported a problem. RA1 indicated that in such cases she tried to understand the problem more by collecting additional information about the specific circumstances under which the problem occurred. Once she felt she had enough details she would communicate them to either the hardware or software provider (INTRA1 0428).
Finding solutions The range of attempted and successful solutions was as big as the range of the problems that RA1 was confronted with. On some occasions shutting down and restarting the system or adjusting system settings would help. For problems related to EMR_sys RA1 first had to find out whether it was a bug in the software or a user problem, i.e. a mistake caused by the user not doing things as they were supposed to be done. In the latter case RA1 had to find out how to do things properly and communicate this to the user. Problems that occurred which were unrelated to user behaviors had to be communicated to the vendor of the software or other responsible parties (see below).
However for unresolved problems that were awaiting solution there was also the option of finding workarounds. So part of the role RA1 assumed as a technical support person was identifying how the task at hand could be carried out by means other than those originally suggested. Field notes include reports about several such occasions where workarounds were sought and developed. In one case, once a workaround had been developed, RA1 reported her way of temporarily solving a problem back to the vendor, which ended up being the solution which the vendor used for others as well (OBS 0902).
Communicating with the vendor and other parties A big part of RA1's tasks involved communication with the software vendor. One reason RA1 would contact EMR_sys was to find out about known issues. She would either check their web forum or call them early on in the process of figuring out problems. However sometimes it would take her longer to identify the source of a problem (OBS 0902). One of the challenges faced by RA1 was to figure out which party to turn to, for example, if a problem is caused by the hardware, EMR_sys, or other systems like the software used to transmit results from laboratories. So on many occasions RA1 had to turn to different actors, mainly by phone, to either find out about the hardware setup (OBS 0911), or to track down individual issues to understand what had happened on both sides of the data exchange with a laboratory. Hence one of her roles was to identify and diagnose system configuration problems, which it has been suggested warrant greater attention as technological and organizational environments into which computing systems are introduced become increasingly complex [6]. RA1 developed ample expertise in this regard. Eventually she became the person the technical support person who was helping the CHC with their network would turn to with questions about their system. She said that she could often explain problems to him better and had a better understanding of the clinicians' needs (INTRA1 0428). Clearly, over time, RA1 became an intermediary between clinic EMR users and the network of actors who contributed to the ongoing maintenance and support of the clinic's EMR system.
The main contact in this process was EMR_sys. When reporting a problem to EMR_sys, RA1 would provide as many details as possible, such as the specific patient, the specific actions taken by the clinician, or the specific circumstances under which the problem occurred. She would be asked to provide screenshots, or she would go through issues step by step with customer support on the phone while they were having remote access on a shared screen (OBS 0904). Once an issue had been identified as related to EMR_sys (i.e. other sources including the hardware, other systems and the user had been excluded as a cause of the problem), a case was created with a case number by EMR_sys so that both parties could follow up on it. RA1 found herself increasingly in the role of keeping track of a number of issues, calling and e-mailing the customer support at EMR_sys to ask about the progress of a situation. The number of issues grew to such a level that it was decided to do a conference call not only with the customer support provider at EMR_sys but also her supervisor (OBS 0911).
Another set of issues was related to problems of data exchange between EMR_sys and the provincial CDM toolkit that the CHC was using. 5 In an effort to resolve these problems, RA1 also communicated with representatives of the provincial practice support program (OBS 1030). Through her involvement at the CHC RA1 had established relationships with all the involved actors.
Communicating back Another important aspect of RA1's role at the CHC was to communicate the results of her investigations back to clinic staff. Follow up about specific problems where only specific staff were concerned occurred. In addition, general information about how to do things properly in EMR_sys or about workarounds RA1 had figured out that were relevant for all the staff also needed to be communicated. For these RA1 would either use the messaging system to write a mass communication or she would address the issue at
5 Interestingly, problems with communication between the EMR_Sys and the provincial CDM toolkit dated back to the initial release of the EMR_Sys, and had never been fully resolved [9].
a team meeting.
RA1 also passed on important information about the feedback process with the vendor. She reported that when she was reporting about the progress that has been made in clarifying problems staff was thankful to learn from her about how submitted issues were dealt with by personnel at EMR_sys (OBS 0904). Clearly, an important part of technical support is reporting progress in addressing issues back to staff, who often mistake a lack of communication from technical support staff for neglect.
In terms of troubleshooting IT problems RA1 was the main contact point for collecting and keeping track of issues that disrupted the use of the EMR system. She worked as a mediator between the personnel at the CHC and other parties, especially the software vendor. One of the doctors at the CHC emphasizes the importance of having someone to keep track of things and follow up with the software vendor (INTDOC4 0901). In that respect RA1's role was not only to get the system back to work technically, but also to restore the trust of users in the system. Another doctor described the role that RA1 has taken on as hugely helpful "just in terms of troubleshooting these little software issues that come up" (INTDOC6 0922). She said that this is why it was important to have an IT person who was there to figure things out, and get them back to work "so that we can continue to have confidence in it" (INTDOC6 0922).
3.2 EMR optimization
RA1 also performed tasks of EMR optimization, i.e. the adaptation of the software and its features that are used to support mainly routine tasks. Many of the questions that RA1 received from personnel at the CHC were not related to things that were not working or problems that occurred, but rather were related to finding alternative ways of using the system that would make the accomplishment of tasks easier for the staff—this process is sometimes referred to as the appropriation of the system by the users [5]. Some of these requests referred to EMR_sys. In these cases RA1 would look into the software, check help files and the online forum to see if EMR_sys supported the requested functionality (such as linking health information websites to problems, or sending follow-up request for pap tests directly to an MOA so that the list of follow-up tasks would not be populated, or setting up groups of users to be addressed within the messaging system for specific purposes). Other requests could be dealt with by easy adjustments of the system (such as changing the display settings to make scanned documents more readable, or creating shortcuts to certain folders on the desktop). A
tool that RA1 developed and that was much appreciated by the personnel at the CHC was a table summarizing shortcut keys for copying and pasting. On one occasion RA1 changed the font size in a document template from 8 to 12. Prior to that the clinician had to change it herself each time she used the template. RA1 remarks that these are simple ways to make the practice easier (OBS 1014). In such circumstances, RA1—acting as technical support person—sought and found technical solutions to practice wide problems which required knowledge of general computing environments (e.g., the concept of templates and how to alter them in a networked computing environment) which exceeded the technical knowledge of front line medical staff.
RA1 was also involved in tailoring EMR_sys to the needs of physicians' and MOAs' work practices by setting up or modifying existing functions, including handouts and requisitions for patients, templates for the documentation of patient encounters, practice searches, and rules that would incorporate guideline based care into the EMR. These are described in more detail in the next section.
Teaching tools and handouts for patients Examples include flow-sheets for the management of chronic diseases as well as other handouts and teaching tools for patients. These are used to show patients their progress. Links are provided from within the chart to these documents, so that they can easily be printed out and handed over to the patient (INTRA1 0428). Using the input of the clinical pharmacist who coordinates group visits for chronic disease patients, RA1 changed and optimized the flow-sheets that were generated by EMR_sys, especially those for diabetes. One of the doctors added that they had also generated a second page that patients can use to write down their own values. She says that this is an effective tool to enhance patient involvement and encourage self-monitoring which reportedly leads to better health outcomes (INTDOC1 1005).
The templates RA1 created also included action plans for asthma and COPD (chronic obstructive pulmonary disease). One doctor commented that these are linked to care guidelines. Again they were used as teaching tools, which provided patients with a quick and easy overview of things to check for and steps to take. They are individualized for the patient, i.e. the patient's information is taken from the EMR, including the patient's medication list. The clinical pharmacist added that this had cut down on their workflow as before they had to manually fill in the information in a paper sheet and then scan it (INTCP 0927). She added that it took a few runs to get it right, but she was happy that RA1 was able to do it as it needed "a little bit of tricking. And that's something I don't have the skill set to do, and I don't really want to have to learn that” (INTCP 0927).
Requisitions To support the work of the clinical personnel RA1 was engaged in the setup of forms for requisitions that would automatically be populated with the patient information and the information about the clinician who was requesting the specific test or exam. One of the doctors explained that these are requisitions that they frequently use from various providers requesting x-rays or ultrasounds for example. She added that they have made their own school absence note, massage therapy letter, and physiotherapy letter, which are all automatically populated with patient data saving them a lot of time (INTDOC1 1005). The information is also automatically saved into the EMR and labelled by keywords so that it can easily be retrieved. Most recently they have created a template for a standing order. This is most helpful for patients who repeatedly need the same orders (mainly chronic disease patients).
SOAP templates Another endeavour that RA1 was engaged in was the creation and modification of SOAP templates. SOAP refers to "subjective, objective, assessment, plan" and provides a structure for entering data about a patient encounter. The templates can be set up for specific diseases and work as a reminder of what information should be included in the records. Although the clinic does not use many of these templates, a few are frequently used, such as the template for a pap test or the so called Rourke template which includes well baby checks for specific aged infants: two, four, six, twelve, and eighteen month olds.
Practice rules RA1 set up and implemented practice rules. Practice rules are used to identify patients who are due for tests, or for the screening of patients for preventive measures. Once a rule is implemented a reminder will show up on the charts of those patients to whom the rule applies, for example if they have not had a pap test done for more than a year. One of the doctors described how she asked RA1 to work on a system to implement a FRAX (fracture risk assessment) rule. She explained that this involved creating the rule so that it worked and it showed up with the appropriate parameters. She added that it was also important to make sure that some patients were excluded, for example if they had declined a test in the past. She said that she had passed this on to RA1 as this exceeds her involvement with the system and its functionality (INTDOC4 0901).
Practice searches Finally RA1 was also involved in what had originally been envisioned as one of her main tasks: supporting the secondary use of EMR data. In this capacity, she created and helped organize a system of practice searches that would allow the clinic to track their performance in what they refer to as a "quality dashboard" [23]. The practice searches can be used to
scan specific patient panels (e.g. those with chronic diseases) and provide information about the quality of care that they receive. For example, guideline compliance can be measured by evaluating the percentage of diabetes patients who follow up on recommended regular testing. The executive director described how this endeavour took up a lot of their resources in their effort to figure out how to set up the searches and how to assure that the data were available in a format that enabled them to gather the information about their patients which they actually wanted.
"So I would say, the first year or two even of doing practice searches what we learned probably more about was the actual IT side of things, not the patients" (INTEXDIR 0901).
Again RA1 was engaged in this process of learning and understanding the enhanced functionality of the EMR system. Finally she was able to perform searches as requested by the clinicians. As the clinical pharmacist reported "that was the joy of having [RA1]: I asked her for the search, and she built it. So I just had to go and use it" (INTCP 0927).
After RA1 had left the CHC one of the doctors carried on her tasks in terms of EMR optimization (except for the use of practice searches and rules) for clinical use. Before RA1 left, she had a meeting with the doctor in order to pass on any information that would be helpful. Reflecting on whether or not it was appropriate for a doctor to solve these types of problems, the doctor concluded that clinician input is needed to be able to optimize EMR usage, so the ideal to her would be a team of a clinician and an IT person like RA1 (INTDOC1 1005).
3.3 EMR training and IT education
EMR training and education not only about the software but the computer system as a whole formed another part of RA1's tasks that she had taken on over the time of her involvement with the clinic on a more informal basis. Even while performing tasks that can mainly be characterized as troubleshooting (see above) RA1 actually also helped people understand the logic of the EMR in terms of its functionality and its interactions with other systems by communicating solutions back to them. She helped CHC staff figure out things on their own, learn how to deal with the system, and get comfortable in using basic functions, which is also a prerequisite for the personnel to develop ideas about more advanced uses of the software. On many occasions RA1 explained the system to the users, in response to their need to understand what was going on with the system. This played a critical role in helping users maintain their trust in the system when they were facing technical problems. One of the MOAs commented "I have the medical experience, but not the engineering or the technical so I don't know why things happen" (OBS 0819). As described above RA1 would sit with the personnel in front of the computer and either try to figure out what the problem actually was or explain to them how to use the software to avoid problems. After RA1 had been at the CHC for a few months she noticed changes in how the personnel would communicate problems to her. In her notes she reflected that it is interesting to note that doctors increasingly provided possible reasons along with the problems that they presented to her. She noted "Before it has usually been a big unknown as to why the problem exists" (OBS 1121). She cited the clinical pharmacist who told her upon asking for help "not by choice, but I'm starting to understand more what the errors mean. I'm not panicking anymore. I think I know what I did wrong, but maybe you can come up and take a look" (OBS 1209).
Overall RA1 noticed that over time, personnel were becoming more concise about problems they were reporting to her and in communicating with her, there was increasing evidence that CHC staff were starting to understand how the software worked. As a consequence staff were more confident about the system and in their use of it over time, they blamed themselves and worried about having done something wrong less often.
Although this was not one of her official tasks, RA1 also trained people who were new to the system by showing them how to do things when they needed help. RA1 also showed staff how to use new features of EMR_sys. She remembered being approached for help by staff while sitting in the charting room. She had access to EMR_sys, so that she could learn about it and get comfortable with it herself. She explained that this allowed her to answer people's questions when they did not remember how to perform certain functions or when they were wondering about changes in the software. RA1 says "I gained their trust as someone who knows how to use the EMR" (INTRA1 0428). On other occasions RA1 felt that it was necessary to learn more about the tasks of the personnel to be able to decide how they could be supported by the EMR_sys. People also turned to RA1 when they tried to figure out how they could get things done more easily. Finally they turned to RA1 when they wanted to accomplish a new task and were wondering if this was possible within EMR_sys. Through her work at the CHC RA1 learned about the software, but she also had to develop knowledge about the needs of the users and gain a detailed understanding of the tasks of the medical and administrative personnel, and how they were performed within that clinical
context.
After RA1 left the CHC it was not clear how her expertise could be preserved. A training session with the software vendor was organized, in which RA1 participated. She used her own knowledge, training documents that she had developed before, and placed these together with information from the training session with the vendor and made this information available to the personnel at the CHC through their computer desktops. One of the doctors created an icon labelled "EMR_sys clinician tips". The doctor indicated that because they knew she was leaving, the clinic invested time and money into having her generate this information, as they did not want to lose all the knowledge that she had gained, especially about features that are not frequently used (INTDOC1 1005). She spoke about the difficulty of disseminating information to everybody as their meeting times are limited and their work days are very busy. This is an ongoing issue, as the need for training to use the EMR and its functionality is a continuing task, because on the one hand the software changes after upgrades and on the other hand the needs of the clinic change as they explore new ways of making use of the EMR. At the time of the interview it was not clear how this ongoing need for training would be met after the departure of RA1.
In RA1, the CHC had a person who had an understanding of the EMR system as well as of the tasks of the medical personnel. There is a real need for a person in this role, mediating between the software and the work processes the software should support. As the clinical pharmacist pointed out
"Because there is so much about the system that we don't understand and know the potential for. And it's frustrating because we are doing things the hard way. And not knowing that there is an easier and more efficient way to do things is the problem" (INTCP 0927).
One of the doctors added that someone should be in charge to keep up with the training and dissemination related to system updates. She felt that they themselves do not have the capacity to read news about updates, so they need someone who is dedicated to looking through new functionality and educating doctors and other clinic staff about those features that might actually help them in their practice. This doctor felt that this would have to be an expert user of the system, as this person would have to have a detailed understanding of how the system is actually used by the doctors (INTDOC4 0901).
4 Discussion
The paper introduced the case of an EMR system that after a software update did not work in the way it was supposed to, as part of the mostly invisible infrastructure supporting work practices of a group of family physicians at a CHC. Although it may be tempting to conclude that we simply conducted an action research oriented study of a researcher turned EMR support person at a community health center that struggled due to a poorly implemented upgrade to the EMR, such an assertion trivializes the importance of invisible work in maintaining computing infrastructures [15], and glasses over the frequency with which some of the other phenomenon we observed occurs. Neither researchers nor staff at the CHC experienced the EMR upgrade as a poorly implemented upgrade. In contrast, it was experienced as a typical upgrade—an upgrade that was well planned (for example, it was done over a long weekend so problems could be addressed in the absence of the pressures of the clinical workflow), but where in spite of all of the clinic's planning, problems and challenges arose. Some of those problems (e.g., that after the upgrade, macros used to conduct practice searches had to be re-written) were known by the vendor, and yet nonetheless a decision was made to move forward in a manner which was problematic for the clinic. Though it would be easy enough to suggest that the vendor did a bad job, a simple dismissal of the vendor's behaviour detracts attention from a larger phenomenon—that as software is changed and new versions come out, some work practices are favoured and others are not, and this process has very real consequences for a company's installed user base. Arguably, the CHC we studied was disadvantaged because it was an early adaptor of the technology, and, as such, had to absorb costs associated with accommodating the vendor's changes, as the vendor sought to improve their product.
The paper has also explored the role filled by an action researcher providing IT support in this situation. From our examples, we have seen that once the problems with the update were managed and the personnel had gained trust and a better understanding of the system, the focus of RA1's tasks changed from IT support to EMR optimization. The tasks of IT support and software enhancement are often closely related as they both necessitate a thorough understanding of the system. As reported by others, the support service can be used to gain feedback from users and input not only for error reports, but also for change proposals [24]. While providing IT support, RA1 had also taken up the role of a trainer for the software and the broader IT infrastructure. This wide array of tasks is in line with what is described
elsewhere as the tasks of tech support workers that range from fixing immediate, low-level problems to consultancy for longer term projects [25, p. 191]. While some of the tasks that RA1 has taken on in the CHC might be transitional, other tasks she undertook highlight the processes that are needed to keep IT infrastructure running in the context of changing needs and changing constellations of providers. A person dedicated to IT support turned out to be especially helpful to the CHC in their aim to make enhanced use of the system and the patient data stored in the EMR. The medical personnel do not have the time or skills that are necessary to engage with the software on a level that would allow them to achieve these tasks unaided.
A few remarks have to be made about the software that the CHC used and their relation with the vendor of the software. The EMR system has been in use since 2004. Early in the EMR adoption and implementation process, there was a fairly close connection between the clinic and the vendor of the software. However, by the time research reported here was carried out the EMR company had grown and the personnel at the clinic felt that the support had gotten more detached. Clinic staff had become more sophisticated users of EMR_sys, and they felt that often their questions were very specific and could not always be answered by the call centre personnel. This issue—of whether or not rapidly growing companies can adequately manage varied technical support needs of new and mature users—is a whole different story that is worth exploring in more detail, however it is beyond the scope of this paper. It also hints at the importance of the initial decision for a particular product that often has to be made on the basis of limited information. The shopping and the tailoring of software are two main points where especially in small companies the users are involved in the "design" of software [26]. Tailoring refers to the "fitting of purchased technology to the local work situation" [26, p. 205] and it is mostly limited to the options provided within the purchased software. Although the shopping decision is obviously an important factor which shapes subsequent use of an EMR system, the focus here is on the tailoring activities that the CHC had to go through to make the EMR system work for them.
Two major roles of IT support and EMR optimization can be identified: First, RA1 worked as a mediator between the medical work and the technical environment. The medical and administrative personnel at the CHC were focused on their respective tasks, which are carried out in an environment of constant time pressures. RA1 in her role as a technical support person took away the burden and inconveniences of dealing with technical problems by acting as a point person for any IT related concerns. Additionally she provided relief by helping clinic staff understand the EMR system and why certain problems occurred. She helped deal with the fear of doing things incorrectly and causing problems, and she helped reconcile trust in the system in a situation where the service was continuously interrupted. On another level and later on in the process she supported personnel to make repetitive tasks easier, and enhance secondary usage of EMR data. RA1 described how she saw her role mainly as "relationship managing", mediating between the clinic and the software vendor. She spoke about how she understood that the vendor had other clients to serve, but at the same time the personnel at the CHC had issues that they needed addressed or expected to be solved right away. In her own words: "The vendor and the clinic are two different fields that speak different languages. And so you need a position in the middle that can translate. Because you see the vendor world, [...] they really speak a computer programming language. And they develop this great software with all these great functions and tools. However, maybe only half of those tools are actually usable in the clinical field. And you see the clinic and they love what they are doing with the software [...] but they wish it could do so many different things" (INTRA1 0428).
Second, RA1 was also a mediator in the bigger context of system design. By maintaining relations with actors such as the software vendor, hardware support staff, laboratories, and representatives of the health authorities, she became a mediator in the system design process. She provided multiple actors with feedback about the use of the EMR system in a specific site; and she reported about problems encountered on a very detailed and specific level which allowed actors to take steps to ameliorate the problems. RA1 commented that besides helping the CHC make use of the EMR and helping the vendor understand the problems of users, she also saw the information that she had gathered as useful at a policy level. For example, she talked about possibly limiting the frequency of system upgrades as a strategy for managing constant change at the clinical level, and how her work had shed light on the need to further develop standards, for example, to govern the transmission of lab results.
To be able to fill these roles RA1 had to acquire knowledge about a variety of things. She had to learn about the work practices within the clinic to understand the needs of the personnel. She had to learn to use EMR_sys and what functionality it offered in order to understand what was possible within the specific software in use. She had to learn about the system setup in order to understand interactions between different hardware and software components, and finally, she had
to learn about each of the actors involved in the system implementation, and their roles, in order to understand who was responsible for which aspects of problem resolution. She has performed what others have called "participatory IT support" [16] with the characteristics of "relating the system to the use practice" [16, p. 89] and "translating between different practices [.. . ] opening the way for 'why-questions'" [16, p. 89]. RA1 suggested that there were two main important skills that she had to develop in her job: one was listening and understanding the problems or needs of the personnel, and the other one was explaining the process or software functions to clinic staff in a way that would allow them to understand what was possible (INTRA1 0428). The combination of research and action proved to be especially helpful, and was seen by RA1 as providing a huge benefit. Being present at the clinic and being involved in the tasks of IT support provided her with the opportunity to "almost experience it the same way that they experience it" (INTRA1 0428). But at the same time in her role as a researcher she was forced to remove herself from the clinical situation and reflect on possible improvements. She said that this helped her to look at the bigger context of system design and implementation, and by that in turn helped her be an efficient troubleshooter (INTRA1 0428).
The doctors at the CHC are busy with their day-today clinical concerns, so they do not have the time to figure out problems or try to find ways to optimize the use of the software. They emphasized the importance of having someone who is dedicated to these tasks. Their ideal would be a combination of a person who is highly trained in IT and knows about the features of the software, but who is at the same time a "super-user" of the software, i.e. who uses it in his or her daily work almost like a physician or MOA would use it. This confirms the importance of the need for IT support staff in clinical environments having a thorough understanding of the work processes to be supported by the software. At the same time clinic doctors stated that no matter how knowledgeable an IT support person was, that there would still have to be someone to oversee the role of the IT person and to communicate the goals and needs of the clinic from a medical perspective.
5 Conclusions
While many studies compare the differences in work practices between paper based and computerized medical records and investigate the initial implementation of EMR systems, little attention has been paid to the work that is needed to keep the infrastructure of an
EMR system running in clinical settings, where software and staff are constantly adapting to changing needs. As has been the case in the setting described here (in this case, largely dictated by government funded EMR adoption programs), emphasis is placed on hardware and software acquisition, rather than the tasks of troubleshooting IT issues, EMR optimization, as well as EMR training and IT education. The EMR system that we have investigated in this case study can be thought of as infrastructure with two important characteristics: its embeddedness, i.e. it is "sunk into and inside of other structures, social arrangements, and technologies" [3, p. 381] and its scope, i.e. it "has reach beyond a single event or one-site practice" [3, p. 381] in that it is being used to support family practitioners throughout Canada. Our case study suggests however that the achievement of both the embeddedness of the system, and the ability of the system to reach beyond a single doctor, practice or site is enormously dependent upon the often undocumented labour of technical support personnel, who must perform a range of tasks in order for such systems to achieve infrastructural status. Although the existence of these phenomena in our study setting do not yield new insights, they serve as a graphic reminder of how much work remains to be done in finding ways to address and support the challenges associated with achieving infrastructure.
This case study contributes to the research about the specifics of IT infrastructure in general and EMR systems in particular. Versatility and reflexivity have been identified as main distinguishing features of information and communication technology (ICT) infrastructures [10]. "In an ICT-based infrastructure, an additional reflexive level is possible that traditional infrastructures could not provide. As Castells has repeatedly shown, information systems can form reflexive infrastructures, in the sense of tools that can mediate their own further development" [10, p. 454]. This phenomenon has been observed in the case presented here, as evidenced in the two important aspects of RA1's role as mediator between clinical and technical actors. On the side of the users of the EMR system an understanding of the tool in ample detail is needed to be able to use the EMR to its full potential and to decide what can and what cannot be achieved with its aid. Familiarity with the system is a prerequisite for the enhanced use of the EMR's features. Our case demonstrates how co-evolution of systems and users occurs, and our empirical work suggests there are important gains to be made in finding ways to support this co-evolution of systems and users. "Once people gain proficiency in system usage, they would like to use the system in different ways and need different interfaces than those they required when they were novice
users" [27, p. 144]. This suggests that there is an ongoing need for system appropriation work. As users' needs change, they make new and different demands on computing environments, often in an environment where hardware and software are being continuously upgraded. This constant fluctuation demands ongoing attention to configuration, appropriation, and technical support to insure that end users experience the EMR system as infrastructure.
On the side of system developers (in the broader sense, not only including the software developers but also others involved like cooperating partners, e.g. from laboratories, hardware support, or the health authorities who may set policies for using EMRs), an understanding of the variety of specific local work practices and settings is needed. Such an in-depth understanding is required to support the design of configurable systems that can be appropriated by the users according to their respective needs [6], through an understanding of which parts of the system should be tailorable. However the extended tailorability of systems underscores the need for a thorough understanding of the system to support tailoring, and hence continue the design of the system in use [28]. As outlined by others it is often hard for users to understand how a system can be tailored [29]. Tailoring is thereby a continuous process. It is "triggered by both, the introduction of a new system version and non-anticipated needs emerging during a system's use" [29, p. 253]. A high level of expertise is needed both in terms of the IT system and the customer organization as described for example for the customization of enterprise resource planning (ERP) systems [30]. The work practices of medical personnel, i.e. a focus on the care process and a lack of time for additional tasks, speaks to a need for the involvement of a mediating actor who understands both the tasks to be supported and the EMR system as a highly versatile and flexible tool.
Acknowledgements
Our thanks go to RA1 who collected part of the data used in this paper while working in the role of IT support, to all the personnel at the CHC who provided access to the field and are a pleasure to collaborate with, as well as to the Canadian Institutes of Health Research and Canada Health Infoway for the funding to carry out this work, awarded through the CIHR Knowledge to Action funding program.
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Correspondence
Dr. Marianne Tolar
Assessment of Technology in Context Design Lab
School of Communication
Simon Fraser University
Burnaby BC
V5A 1S6
Canada
Phone: +1 778 782 7296
Fax: +1 778 782 4024 http://www.sfu.ca/~aticdl
firstname.lastname@example.org
Dr. Ellen Balka
Assessment of Technology in Context Design Lab School of Communication Simon Fraser University Burnaby BC V5A 1S6
Canada
Phone: +1 778 782 3764 (office)
+1 778 782 7296 (lab)
+1 604 725 2756 (cell)
Fax: +1 778 782 4024 http://www.sfu.ca/~aticdl
email@example.com
|
Serum Prognostic Factors of Androgen-deprivation Therapy Among Japanese Men With De Novo Metastatic Prostate Cancer
Department of Urology, Graduate School of Medical Sciences, Kyushu University, Fukuoka, Japan
TAKESHI KOBAYASHI, RYO NAMITOME, YU HIRATA, MASAKI SHIOTA, KENJIRO IMADA, EIJI KASHIWAGI, ARIO TAKEUCHI, JUNICHI INOKUCHI, KATSUNORI TATSUGAMI and MASATOSHI ETO
Abstract. Background/Aim: To date, several serum prognostic factors have been reported in metastatic prostate cancer. In this study, we examined the prognostic value of these serum markers in Japanese men. Patients and Methods: This study included 104 patients with metastatic prostate cancer who were treated with primary androgen-deprivation therapy from 2001 to 2013. Clinicopathological factors including several serum markers were investigated for association with progression-free (PFS) and overall (OS) survival. Results: During a median follow-up of 48.1 months, median PFS and OS were 24.0 months and 67.4 months, respectively. When adjusted by age, prostate-specific antigen at diagnosis, Gleason score, and clinical stage, serum lactate dehydrogenase value was significantly associated with PFS [hazard ratio (HR)=1.42, 95% confidence interval (CI)=1.15-1.74; p=0.0004] and OS (HR=1.46, 95% CI=1.13-1.82; p=0.0014), in addition to alkaline phosphatase value for OS (HR=1.04; 95% CI=1.001.07; p=0.015). Conclusion: This study demonstrates the prognostic significance of alkaline phosphatase and lactate dehydrogenase values in Japanese men with de novo metastatic hormone-sensitive prostate cancer.
metastatic HSPC was also demonstrated in the LATITUDE and STAMPEDE trials in 2017 (4, 5). Accordingly, up-front docetaxel chemotherapy and abiraterone with ADT have become standard therapies for metastatic HSPC (6).
Androgen-deprivation therapy (ADT) has been the standard treatment for recurrent or advanced prostate cancer since 1941 (1). In 2015, docetaxel chemotherapy with ADT for metastatic hormone-sensitive prostate cancer (HSPC) was shown to prolong both time to progression and overall survival (OS) in the CHAARTED and STAMPEDE trials (2, 3). In addition, survival benefit from the cytochrome P450 family 17 subfamily inhibitor abiraterone with ADT for
To date, several prognostic factors in ADT have been reported. In addition to utilization of single parameters, the Glass model, which incorporates metastatic site, performance status, Gleason score and prostate-specific antigen (PSA) level, was classically proposed as a prognostic model using these multiple prognostic factors in combination. Later, the J-CAPRA score, which includes clinical TNM stage, Gleason score and PSA level, was developed to more accurately predict prognosis (7). In addition to these clinicopathological prognostic characteristics, several serum parameters were reported to be prognostic in various cancer types. Among them, hemoglobin (Hb), alkaline phosphatase (ALP), and lactate dehydrogenase (LDH) are well known (8). In addition, inflammatory parameters of serum, such as the neutrophil–lymphocyte ratio (NLR) and C-reactive protein (CRP) as well as sodium were recently suggested to be prognostic (9-11). In this study, we aimed to examine the significance of these serum parameters in Japanese men with de novo metastatic prostate cancer treated with ADT.
Correspondence to: Masaki Shiota, MD, Ph.D., Department of Urology, Graduate School of Medical Sciences, Kyushu University, 3-1-1 Maidashi, Higashi-ku, Fukuoka 812-8582, Japan. Tel: +81 926425603, Fax: +81 926425618, e-mail: email@example.com
Key Words: Androgen-deprivation therapy, ALP, LDH, metastatic prostate cancer.
Patients. This study retrospectively enrolled 104 Japanese men who were treated with primary ADT for de novo metastatic prostate cancer at Kyushu University Hospital, Fukuoka, Japan, from 2001 to 2013, for whom any serum parameters were available. We excluded: (i) patients of any ethnicity other than Japanese; (ii) patients who had received local treatment before primary ADT; and (iii) patients who received other treatments (such as chemotherapy) before disease progression. This study was approved by the Institutional Review Board of Kyushu University Hospital (29-438). All patients were histopathologically diagnosed with adenocarcinoma of the prostate, including 93 men (89.4%) who were biopsied at Kyushu University Hospital and 11 men (10.6%) who were biopsied at another institution (three biopsy specimens of which were reviewed at our Institution). Clinical staging was determined using the unified TNM criteria based on results of digital rectal examinations, transrectal ultrasound, magnetic resonance imaging, computed tomography, and bone scans (12).
Patients and Methods
Table I. Patient characteristics.
Treatment and outcome. All patients were primarily treated with ADT with surgical castration, or medical castration using a luteinizing hormone-releasing hormone agonist/antagonist (goserelin acetate, leuprorelin acetate, or degarelix acetate) with/without an anti-androgen agent (bicalutamide or flutamide); 98 men were primarily treated with combined androgen blockade, and six men were treated with castration alone. Progression was judged by a PSA increase of >2 ng/ml and a 25% increase over the nadir, or radiographic progression defined as the appearance of two new lesions or progression of one or more known lesions, as classified by the Response Evaluation Criteria in Solid Tumours (RECIST) (13).
Results
Statistical analysis. All statistical analyses were performed using JMP13 software (SAS Institute, Cary, NC, USA). Continuous and categorical data were analyzed by Wilcoxon rank-sum and Pearson's chi-square tests, respectively. Survival analyses were conducted using the Kaplan–Meier method and log-rank test. The Cox proportional hazards model was used to estimate hazard ratios (HRs). All p-values were two-sided; values of p<0.05 were considered significant.
During a median follow-up of 48.1 months (interquartile range=25.0-68.4 months), 72 men (69.2%) experienced progression to castration-resistant prostate cancer (CRPC) and
3192
48 men (46.2%) died from any cause. Median PFS and OS were 24.0 months (interquartile range=11.3-74.1 months) and 67.4 months (interquartile range=43.3 months–not reached), respectively. Most patients presented with high PSA levels, high Gleason score, and advanced TNM stage at initial diagnosis (Table I). Hb, NLR, ALP, LDH, sodium, and CRP values were within a normal range for most patients (Table I).
Next, the prognostic significance of clinicopathological factors including serum parameters for PFS were evaluated. As shown previously, Gleason score, clinical T-stage, and clinical N-stage were identified to be prognostic, although the PSA level at diagnosis and clinical M-stage were not prognostic in this cohort (Table II). Among serum parameters, only a high LDH level was identified as being associated with an increased risk of progression to CRPC on univariate analysis (HR=1.45, 95% confidence interval
Kobayashi: Serum Marker in Metastatic Prostate Cancer
Table II. Univariate and multivariate analyses for progression-free survival.
VariableUnivariateMultivariate
PSA: Prostate-specific antigen; Hb: hemoglobin; NLR: neutrophil-lymphocyte ratio; ALP: alkaline phosphatase; LDH: lactate dehydrogenase; Na: sodium; CRP: c-reactive protein. Significant p-values are shown in bold.
(CI)=1.18-1.75; p=0.0009), which was confirmed on multivariate analysis adjusted by age, PSA at diagnosis, Gleason score, and clinical stage (HR=1.42, 95%CI=1.151.74; p=0.0004) (Figure 1A, Table II).
treated with ADT with or without docetaxel in the GETUGAFU15 trial, which mainly enrolled Caucasian patients (8). Similarly, in Asian populations including Japanese, Chinese and Korean individuals, it was reported that a high ALP level was associated with worse prognosis in metastatic HSPC (14-16). The ALP value is associated with the extent of disease in bone metastasis, which is also a well-known prognostic factor for OS (16-18). The ALP value, however, was not prognostic for PFS. Intriguingly, ALP was shown to be a prognostic factor in patients with CRPC when treated with docetaxel and androgen receptor axis-targeting agents such as abiraterone and enzalutamide (19, 20). Therefore, differential prognostic significance for PFS and OS may be explained by the prognostic value of ALP in CRPC.
This study showed that the ALP level was a prognostic factor for OS, but not for PFS. Moreover, the LDH level was identified as a robust and prominent prognostic factor for both PFS and OS. However, Hb, NLR, sodium, and CRP values failed to be associated with prognosis.
Similar results were obtained for OS. As previously reported, age, Gleason score, and clinical T-stage were identified to be prognostic, although the PSA level at diagnosis, clinical N-stage and clinical M-stage were not prognostic in this cohort (Table III). Among serum parameters, low Hb (HR=0.78, 95%CI=0.64-0.96; p=0.020), high LDH (HR=1.32, 95%CI=1.03-1.62; p=0.028) and low Na (HR=0.86, 95%CI=0.75-0.99; p=0.029) values were identified as associated with increased death risk by any cause on univariate analysis. However, when adjusted by age, PSA at diagnosis, Gleason score, clinical stage, ALP value [HR=1.04, 95%CI=1.00-1.07; p=0.015] and LDH value [HR=1.46, 95%CI=1.13-1.82; p=0.0014] were identified to be prognostic for OS (Figure 1B, Table III). Discussion
Recently, Gravis et al. showed that the serum ALP value is the most prominent prognostic factor for OS among men
The LDH value has also been reported to be prognostic for OS in HSPC. Gravis et al. demonstrated that the LDH value in addition to the ALP value is a prognostic factor for OS among men treated with ADT in the GETUG-AFU15 trial (8). Similarly, in an Asian population of Japanese, Chinese and Korean individuals, it was reported that a high LDH level was associated with worse prognosis in metastatic HSPC (15, 16, 21). A high LDH value seems to originate from cancer cells in most patients, reflecting the total cancer volume, although the ALP level mirrors only bony lesions of prostate cancer. Therefore, LDH may reflect the whole-body cancer status more accurately than ALP, resulting in more precise prognostic ability.
Table III. Univariate and multivariate analyses for overall survival.
VariableUnivariateMultivariate
PSA: Prostate-specific antigen; Hb: hemoglobin; NLR: neutrophil–lymphocyte ratio; ALP: alkaline phosphatase; LDH: lactate dehydrogenase; Na: sodium; CRP: c-reactive protein. Significant p-values are shown in bold.
The present study had several limitations. The sample size was relatively small, and the study design was retrospective. In addition, a small number of cases lacked information regarding several serum markers. The accrual period was long, and included the era before novel agents for CRPC (abiraterone acetate, enzalutamide, radium-223, docetaxel and cabazitaxel) were introduced. However, an advantage was that this study included only Japanese men with de novo metastasis, which highlighted the similarity among cases.
This study demonstrated the prognostic significance of ALP, as well as LDH Levels among Japanese men with de novo metastatic HSPC, confirming the universal significance of these serum parameters. However, this study failed to show the significance of other serum parameters among Japanese men, suggesting ALP and LDH values are more robust than other serum parameters.
Acknowledgements
Conclusion
Conflicts of Interest
Authors' Contributions
The Authors declare that there are no financial disclosures or conflict of interest regarding this article.
MS designed the study, and wrote the draft of the article. TK analyzed the data. All other Authors contributed to data collection and interpretation, and critically reviewed the article. EM supervised the study.
The Authors thank H. Nikki March, Ph.D., from Edanz Group (www.edanzediting.com/ac) for editing a draft of this article.
This work was supported by JSPS KAKENHI grant (17K11145).
Grant Support
References
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et al zoledronic acid, or both to first-line long-term hormone therapy in prostate cancer (STAMPEDE): survival results from an adaptive, multiarm, multistage, platform randomised controlled trial. Lancet 387: 1163-1177, 2016. PMID: 26719232. DOI: 10.1016/S0140-6736(15)01037-5
4 Fizazi K, Tran N, Fein L, Mason MD, Dearnaley DP, Spears MR, Ritchie AW, Parker CC, Russell JM, Attard G, de Bono J, Cross W, Jones RJ, Thalmann G, Amos C, Matheson D, Millman R, Alzouebi M, Beesley S, Birtle AJ, Brock S, Cathomas R, Chakraborti P, Chowdhury S, Cook A, Elliott T, Gale J, Gibbs S, Graham JD, Hetherington J, Hughes R, Laing R, McKinna F, McLaren DB, O'Sullivan JM, Parikh O, Peedell C, Protheroe A, Robinson AJ, Srihari N, Srinivasan R, Staffurth J, Sundar S, Tolan S, Tsang D, Wagstaff J and Parmar MK; STAMPEDE investigators: Abiraterone plus prednisone in metastatic, castration-sensitive prostate cancer. N Engl J Med 377: 352-360, 2017. PMID: 28578607. DOI: 10.1056/NEJMoa1704174
6 Nuhn P, De Bono JS, Fizazi K, Freedland SJ, Grilli M, Kantoff PW, Sonpavde G, Sternberg CN, Yegnasubramanian S and Antonarakis ES: Update on systemic prostate cancer therapies: Management of metastatic castration-resistant prostate cancer in the era of precision oncology. Eur Urol 75: 88-99, 2019. PMID: 29673712. DOI: 10.1016/j.eururo.2018.03.028
5 James ND, de Bono JS, Spears MR, Clarke NW, Mason MD, Dearnaley DP, Ritchie AWS, Amos CL, Gilson C, Jones RJ, Matheson D, Millman R, Attard G, Chowdhury S, Cross WR, Gillessen S, Parker CC, Russell JM, Berthold DR, Brawley C, Adab F, Aung S, Birtle AJ, Bowen J, Brock S, Chakraborti P, Ferguson C, Gale J, Gray E, Hingorani M, Hoskin PJ, Lester JF, Malik ZI, McKinna F, McPhail N, Money-Kyrle J, O'Sullivan J, Parikh O, Protheroe A, Robinson A, Srihari NN, Thomas C, Wagstaff J, Wylie J, Zarkar A, Parmar MKB and Sydes MR; STAMPEDE Investigators: Abiraterone for prostate cancer not previously treated with hormone therapy. N Engl J Med 377: 338-351, 2017. PMID: 28578639. DOI: 10.1056/NEJMoa 1702900
7 Cooperberg MR, Hinotsu S, Namiki M, Ito K, Broering J, Carroll PR and Akaza H: Risk assessment among prostate cancer patients receiving primary androgen deprivation therapy. J Clin Oncol 27: 4306-4313, 2009. PMID: 19667269. DOI: 10.1200/ JCO.2008.21.5228
9 Kawahara T, Yokomizo Y, Ito Y, Ito H, Ishiguro H, Teranishi J, Makiyama K, Miyoshi Y, Miyamoto H, Yao M and Uemura H: Pretreatment neutrophil-to-lymphocyte ratio predicts the prognosis in patients with metastatic prostate cancer. BMC Cancer 16: 111, 2016. PMID: 26883640. DOI: 10.1186/s12885016-2134-3
8 Gravis G, Boher JM, Fizazi K, Joly F, Priou F, Marino P, Latorzeff I, Delva R, Krakowski I, Laguerre B, Walz J, Rolland F, Théodore C, Deplanque G, Ferrero JM, Pouessel D, Mourey L, Beuzeboc P, Zanetta S, Habibian M, Berdah JF, Dauba J, Baciuchka M, Platini C, Linassier C, Labourey JL, Machiels JP, El Kouri C, Ravaud A, Suc E, Eymard JC, Hasbini A, Bousquet G, Soulie M and Oudard S: Prognostic factors for survival in noncastrate metastatic prostate cancer: Validation of the Glass model and development of a novel simplified prognostic model. Eur Urol 68: 196-204, 2015. PMID: 25277272. DOI: 10.1016/j.eururo.2014.09.022
10 Xu L, Zhao Q, Huang S, Li S, Wang J and Li Q: Serum C-reactive protein acted as a prognostic biomarker for overall survival in metastatic prostate cancer patients. Tumour Biol 36: 669-673, 2015. PMID: 25286759. DOI: 10.1007/s13277-014-2670-x 11 Ghoshal A, Garmo H, Hammar N, Jungner I, Malmström H,
Walldius G and Van Hemelrijck M: Can pre-diagnostic serum levels of sodium and potassium predict prostate cancer survival?
BMC Cancer 18: 1169, 2018. PMID: 30477464. DOI: 10.1186/ s12885-018-5098-7
Carducci MA, Eisenberger MA, Higano C, Bubley GJ, Dreicer R, Petrylak D, Kantoff P, Basch E, Kelly WK, Figg WD, Small EJ, Beer TM, Wilding G, Martin A and Hussain M; Prostate Cancer Clinical Trials Working Group: Design and end points of clinical trials for patients with progressive prostate cancer and castrate levels of testosterone: recommendations of the Prostate Cancer Clinical Trials Working Group. J Clin Oncol 26: 11481159, 2008. PMID: 18309951. DOI: 10.1200/JCO.2007.12.4487
12 International Union Against Cancer: Urologic Tumors. Prostate. In: TNM Classification of Malignant Tumors, 5th edn. Sobin LH, Wittekind CH (eds). John Wiley & Sons, New York, 170173, 1997. 13 Scher HI, Halabi S, Tannock I, Morris M, Sternberg CN,
14 Akimoto S, Furuya Y, Akakura K, Shimazaki J and Ito H: Inability of bone turnover marker as a strong prognostic indicator in prostate cancer patients with bone metastasis: Comparison with the extent of disease (EOD) grade. Prostate 38: 28-34, 1999. PMID: 9973106.
16 Koo KC, Park SU, Kim KH, Rha KH, Hong SJ, Yang SC and Chung BH: Predictors of survival in prostate cancer patients with bone metastasis and extremely high prostate-specific antigen levels. Prostate Int 3: 10-15, 2015. PMID: 26157761. DOI: 10.1016/j.prnil.2015.02.006
15 He J, Zeng ZC, Yang P, Chen B, Jiang W and Du SS: Clinical features and prognostic factors for patients with bone metastases from prostate cancer. Asian J Androl 14: 505-508, 2012. PMID: 22504872. DOI: 10.1038/aja.2012.24
17 Soloway MS, Hardeman SW, Hickey D, Raymond J, Todd B, Soloway S and Moinuddin M: Stratification of patients with metastatic prostate cancer based on extent of disease on initial bone scan. Cancer 61: 195-202, 1988. PMID: 3334948.
19 Shiota M, Yokomizo A, Adachi T, Koga H, Yamaguchi A, Imada K, Takeuchi A, Kiyoshima K, Inokuchi J, Tatsugami K and Naito S: The oncological outcomes and risk stratification in docetaxel chemotherapy for castration-resistant prostate cancer. Jpn J Clin Oncol 44: 860-867, 2014. PMID: 24951829. DOI: 10.1093/jjco/hyu081
18 Imai K, Tomaru Y, Ohnuki T, Yamanaka H, Sakai H, Kanetake H, Minami Y, Nomata K and Saito Y: Significance of a new stratification of alkaline phosphatase and extent of disease in patients with prostate carcinoma with bone metastasis. Cancer 69: 2983-2989, 1992. PMID: 1591692.
20 Okegawa T, Ninomiya N, Masuda K, Nakamura Y, Tambo M, Nutahara K. AR-V7 in circulating tumor cells cluster as a predictive biomarker of abiraterone acetate and enzalutamide treatment in castration-resistant prostate cancer patients. Prostate 78: 576-582, 2018. PMID: 29508425. DOI: 10.1002/pros.23501 21 Yamada Y, Nakamura K, Aoki S, Tobiume M, Zennami K, Kato
Received April 13, 2019 Revised May 6, 2019 Accepted May 8, 2019
Y, Nishikawa G, Yoshizawa T, Itoh Y, Nakaoka A, Yoshida E, Uchiyama T and Honda N: Lactate dehydrogenase, Gleason score and HER-2 overexpression are significant prognostic factors for M1b prostate cancer. Oncol Rep 25: 937-944, 2011. PMID: 21249322. DOI: 10.3892/or.2011.1154
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Chapter One
Family Income & Jobs Raising Children Out of Poverty
A lmost 37 million people living in America were poor in 2004, 13 million of them children. Real incomes are falling and poverty in the United States is more prevalent now than in the late 1960s and early 1970s, having escalated rapidly since 2000.
For every five children who have fallen into poverty since 2000, more than three fell into "extreme poverty," a term describing families living at less than one-half of the poverty level. This means that these families had to get by on less than $7,412 a year, or $20 a day.
More than seven out of every ten poor children in 2004 lived in a family with at least one employed relative. Working hard and playing by the rules is not enough to lift families out of poverty. For example, even if a parent with one child works full-time at the federal minimum wage, which has not been raised since 1997, the family still lives in poverty.
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"The future promise of any nation can be directly measured by the present prospects of its youth."
—President John F. Kennedy, February 14, 1963
"We haven't reduced economic risks. We've simply redistributed them from the economy as a whole to individual households." 1
—Harvard economist Martin L. Weitzman
Poverty kills. It also maims and stunts the growth and eclipses the dreams of hundreds of millions of children around the world. Yet the fact that more than 20,000 people worldwide will die in extreme poverty today will not make tomorrow's headlines. 2 Similarly disregarded is the irony that America's poorest residents continue to be worse off than those of almost any other country in the developed world. 3
Poverty in America is a political problem, caused less by a lack of resources than by a failure to come to terms with reality. It is universally understood that food, shelter, health care, and other basics are crucial to the well-being of children and families. What is largely ignored by our leaders, the news media, and the public, however, is the fact that millions of families do not have adequate incomes to provide these basic necessities.
children living in other families to be exposed to inadequate education, inadequate or absent healthcare, hazardous housing, and poor nutrition. These multiple barriers associated with poverty build upon one another and unjustly deprive children of the opportunity to reach their full potential as parents, employees, and citizens. Children who grow up in poverty are more likely to become teen parents and, as adults, to earn less, to be unemployed more frequently, and to raise their own children in poverty.
A childhood spent in poverty can have negative impacts on an individual's entire life. Children living in families that are poor are more likely than
Parents with low levels of education and skills continue to lag behind in employment and wages. Many government benefits for low-income families have dwindled, and current federal and state budget shortfalls will likely make even fewer resources available in the future. The typical household's income has fallen or remained stagnant for five consecutive years, and certain groups—most notably minorities, young and single parents, and people with disabilities—face particular difficulties trying to earn enough to support their families.
Poverty Affects All Americans
A majority of Americans will experience poverty at some point during their adult lifetime.
* At age 20, more than one in 10 Americans live in poverty.
* By age 40, more than one in three Americans have experienced at least one year of poverty during their early adulthood.
* By the time Americans have reached age 75, almost three in five have passed a year in poverty.
* One in three will experience a year of extreme poverty (below 50 percent of poverty) by the time they are 75 years of age, and more than three out of four will experience a year below 150 percent of poverty by the time they're 75.
* Between age 20 and age 65, more than two out of three Americans participate in some public assistance program and two in five receive some type of public assistance for a total of five years or more.
Source: Mark Robert Rank, One Nation, Underprivileged (Oxford University Press, 2004).
Children’s Defense Fund
The Poor Get Poorer—and More Numerous
The failure to implement sound economic policies and maintain an adequate safety net at a time when the market has failed to provide enough job opportunities is evident in the poverty data released by the U.S. Census Bureau.
After falling for seven consecutive years during the 1990s, child poverty rose for four years in a row to 13 million in 2004; in all, 37 million Americans live below the poverty line. 4 Child poverty has increased by over 1.4 million children since 2000, accounting for more than a quarter of the 5.4 million people overall who have fallen into poverty. More than one out of every six American children were poor in 2004. By race and ethnicity, one in three Black children, almost three out of 10 Latino children, one in 10 Asian children, and more than one in 10 White, non-Latino children were poor. 5
Even more disturbing than the continued rise in child poverty and the growing portion of the poor who are children is the striking increase in the number of children living in extreme poverty. Extreme poverty means families are living below one-half of the poverty level. That translates into a family of three having to support itself on less than $7,610 a year, or about $20 a day. From 2000 to 2004, the number of children in extreme poverty grew almost twice as fast as the number of children in poverty overall, 20 percent compared to 12.4 percent. 6 For every five children who have fallen into poverty since 2000, more than three fell into extreme poverty.
Poverty rates for children in female-headed households continue to be alarmingly high. More than two in five children in female-headed households are poor; more than half of those live in extreme poverty. Black and Latino children in single female households face particularly high rates
Family Income – Table 1
In the first four years of this century, the number of children living in extreme poverty increased by 20 percent.
Poverty and Extreme Poverty Among Children, 2000-2004 (Numbers in thousands)
* The total number of Latino children in poverty grew very rapidly between 2000 and 2004; the number of Black children increased less dramatically. The growth in poverty among Black children was entirely due to the increase in poverty and extreme poverty rates, whereas the increase in the number of poor Latino children was due primarily to the growth in the size of the total group, while their poverty rates stayed the same.
Source: U.S. Department of Commerce, Bureau of the Census, March 2001 and March 2005 Current Population Survey. Poverty figures come from Historical Poverty Tables - People, Table 3, at <http://www.census.gov/hhes/www/poverty/histpov/hstpov3.html>. Extreme poverty figures come from Detailed Poverty Table POV01 for 2004 <http://pubdb3.census.gov/macro/032005/pov/new01_050.htm> and Table 2 for 2000 <http://pubdb3.census.gov/macro/032001/pov/new02_000.htm>. Calculations by Children's Defense Fund.
Note: The Census Bureau revised the weights used for its 2000 estimates, but has not revised its Detailed Poverty tables that are the source of the 2000 extreme poverty estimates. Estimates contained in the Historical Poverty Tables have been revised with the new weights.
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of poverty; over half of Latino children and nearly half of Black children, compared to the still high rate of more than three in 10 White children, are poor.
This worsening reality not only hurts children and families; it dims our prospects as a nation. Impressive progress was made between 1992 and 2000, when close to 4 million children were lifted out of poverty. Since 2000 this positive trend has sharply reversed, and more than 1.4 million additional children have fallen into poverty. 7 If poverty had continued to decline between 2000 and 2004 at the same annual rate as it did between 1992 and 2000, the likelihood of a child being poor in America would have been reduced by an additional 13.7 percent. That means that, instead of seeing nearly one and a half million children fall into poverty over four years, 1.9 million more children would have escaped it.
resources has provided a tremendous opportunity to alleviate childhood poverty, promote economic justice, and ensure that the basic needs of all Americans are met. Sadly, our nation's growing bounty is not being justly shared by all. America has failed to take full advantage of its growing wealth by making the necessary public investments to protect low-income families and children from economic insecurity and material deprivation.
Relative Losses: Families Face Declining Incomes and Rising Costs
Inequality Is Intensifying
There are more children living in poverty today than there were 38 years ago even though the current value of the national wealth available per person is more than twice what it was at that time. 8 The continued growth of our society's material
Over the past three decades, inequality in the United States has intensified dramatically. Much of the nation's new wealth has gone to those with the highest incomes, erasing the equity gains of the post-World War II years. 9 The richest 5 percent of households received more than $1 out of every $5 in total income in 2004. 10 On average, the income of the top 20 percent of households was about 15 times greater than that of the households in the bottom 20 percent—the widest gap on record based on an analysis of U.S. Census Bureau figures. 11 What is more, the average after-tax income of the richest 1 percent of households was 50 times that of the bottom 20 percent of households. 12 These wealthy households have seen their after-tax income increase by 140 percent since 1979—65 times more than the gains seen by the typical household and 370 times the average income gain for the 22.2 million American households with the lowest incomes. 13
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Black and Hispanic children are about three times as likely to be poor as non-Hispanic White children.
Poor Children in America, 2004, 2003, and 1973 Persons Younger than 18
1Starting with poverty data for 2002, the Census Bureau permits persons to choose more than one race; racial groups shown here may overlap. 2 Persons of Hispanic origin may be of any race. White non-Hispanic means White alone (no other race) and not of Hispanic origin. 3Data by metropolitan area status are not available for 2004.
n/a — Not available.
Source: U.S. Department of Commerce, Bureau of the Census, Current Population Reports, Series P-60, Nos. 98, 226, and 229, and Historical Poverty Tables – People, Table 20 <http://www.census.gov/hhes/www/poverty/histpov/hstpov20.html>. Calculations by Children's Defense Fund.
The trend in inequality is further exemplified by the explosion in the average compensation of chief executive officers (CEOs). The Economic Policy Institute (EPI) reports that the average CEO compensation in 2003 was 185 times that of the typical worker, compared to 24 times as much in 1965. 14 According to a study by Pearl Meyer & Partners, in
2004, the CEOs of major companies received an average of $9.97 million in total compensation, or more than $38,000 for each day of work. 15
In addition to this growing income inequality, an increasing share of total national income has been going to corporate profits while a shrinking portion is going to incomes and wages. This means
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that workers at the bottom of the income distribution are receiving a smaller share of the shrinking portion of national income that goes to employees' wages. The share of national income going to the wages and salaries of employees is lower than it has been in any year since the data started being collected in 1929. At the same time, the share of income going to after-tax corporate profits is now higher than it has been for the past 75 years. 16 This trend has intensified recently as corporate profits have seen a strong rebound following the 2001 recession. By the end of 2004, the Financial Times reports, profits of U.S. companies had soared to a record $1.27 trillion, or 10.6 percent of GDP—a level only surpassed once since 1968. 17
Family Incomes Are Declining and Wage Growth Is Weak
It is not only the share of national income that goes to those at the middle and bottom of the income ladder that is declining, but also its real value. After peaking in 1999, median household incomes fell for five years in a row. Incomes have been falling or stagnant among all groups, and minority households are seeing the equity gains of the 1990s slip away. Median incomes have fallen to about $34,000 for Latino families and $30,000 for Black families—70 and 62 percent of White family income, respectively. 18 The median earnings of those who worked full-time, year-round also lost ground across the board over the last year. The slight gain in earnings equity for women since 2003 that the data reveal is entirely attributable to the fact that the earnings of men declined more rapidly than those of women, hardly a sign of progress. A typical woman who works full-time, year round still makes less than 77 cents for every dollar earned by a man with similar work effort. 19 For households in the bottom 20 percent, average incomes have fallen for five years in a row while those in the top 20 percent have seen their incomes rise for the past two years. Since 2000, incomes fell by 10 percent for younger households headed by someone 15 to 24 years old and by 7 percent among households headed by someone aged 25 to 34. 20
These persistently negative trends in incomes, particularly for the households that already have
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In the meantime, prices for goods and services have continued to increase at an accelerated pace since 2003. 22 The general effect is that families cannot afford the same living standard as before on their current wages. A close look reveals a decline in wages in 2004 that was more severe among those at the bottom of the earnings scale, falling by 1.3 percent for the bottom 10 percent of workers and actually increasing by 1 percent for the richest 5 percent. 23 By education level, all workers except those with advanced degrees saw their hourly wages fall in 2004. A bulk of the loss was concentrated among women with a high school education, or less than a high school education; a decrease of 1.1 percent and 1.4 percent, respectively. 24
Wages and Benefits: Missed Opportunities to Support Working Families
Eight years have passed with no action by Congress to raise the minimum wage and help lowwage workers better support themselves and their families. As a result of the stagnating minimum wage, a full-time minimum wage paycheck— which would have kept a family of three above the poverty threshold until the mid 1980s—provides an annual income that is not even three-quarters of the poverty line in 2004. If the minimum wage had increased as quickly as CEO pay since 1990, today it would be $23.03 per hour, more than four times
State Median Income for a Four-Person Family, FY 2006
Source: U.S. Department of Health and Human Services, Administration for Children and Families, "State Median Income Estimate for a Four-Person Family (FFY 2006)," Federal Register, Vol. 70, No. 32 (Thursday, February 17, 2005), pp. 8102-8104.
STORIES FROM THE STATES
Two Incomes and Still Too Little
Tabitha and her husband are raising three sons, ages 8, 6, and 20 months, near Columbus, Ohio. They are both employed; Tabitha works at check-out at Value City, while her husband works at Subway. Both earn the federal minimum wage, $5.15 an hour, for monthly earnings of $1,785. Still, their annual earnings of $21,424 leave them below the poverty line of $22,543 for a family with two parents and three children.
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the current minimum wage of $5.15 an hour. 25 The annual income of an individual working fulltime, with two children, at the $5.15 an hour minimum wage leaves them $4,500 below the 2004 poverty threshold.
Some 9.7 million children live in a household where at least one worker earns between the current minimum wage and $7.25 per hour, the minimum wage advocated by some Members of Congress in 2005. 26 Furthermore, 1.2 million of these children live in households where two or more workers earned less than the proposed minimum wage. 27. Many of the 13 million American children living below the poverty line would benefit from such an increase.
56 percent of the costs of raising two children, a significant improvement for working families. One out of three minimum wage earners is the sole income earner in families with children that would be affected by such a change. 28 This increase would help our neediest citizens most, as the lowest paid 40 percent of households would receive 60 percent of the increase in earnings. 29
Families Struggle to Pay the Bills
The current earnings of a single parent working full-time at minimum wage covers only 40 percent of the estimated cost of raising two children. This is down from 48 percent in 1997 when the minimum wage was last raised. If the minimum wage were raised to $7.25 per hour, it would cover
Adequate incomes are necessary to cover the rising costs of raising a family. When incomes fail to keep pace with rising health care, housing, transportation, and energy costs, parents are forced to make impossible choices that can be detrimental to children and weaken families. For example, research has shown that families who cannot pay their home energy bills not only struggle to keep family members warm, but also have agonizing problems keeping them fed and healthy. 30 The
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National Energy Assistance Directors' Association reported that the unaffordability of energy bills has a serious long-term impact on families: 22 percent of Low-Income Home Energy Assistance Program recipients 31 went without food for at least one day, 38 percent went without medical or dental care, 30 percent went without filling a prescription or taking the full dose of a prescription medicine, and 21 percent became sick because their home was too hot. 32 As energy prices continue to climb, lowincome families are seeing their home energy and transportation costs take up a larger share of their budgets, limiting expenditures on other necessities.
When earnings fail to keep pace, families become more and more indebted as they struggle to meet these rising costs. According to a recent study, between 1989 and 2001, the credit card debt of very low-income families (earning less than $10,000 per year) increased at a staggering rate of 184 percent. 33 The study attributes this dramatic rise in debt to structural economic factors, including stagnant growth in real income among low- and moderate-income families in the face of escalating housing and health care costs. 34
Anemic Jobs Recovery Leaves Many Families Behind
In addition to falling wages and salaries, a fundamental and related cause of the decline in family incomes and the growth in poverty since 2000 is joblessness. Unemployed workers and their families are the most directly impacted when the economy loses jobs or fails to generate sufficient new jobs for an expanding population. The portion of unemployed parents with children younger than 18 who were out of work for six months or longer almost doubled from 2000 to 2004—rising from 11.9 percent to 21.6 percent. 35 The more than half a million parents who are currently experiencing long-term unemployment—those who have been unemployed for more than six months—care for about one million children. 36
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Much of the recent fall in the unemployment rate can be attributed to a falling percentage of the working aged population that is participating in the labor force, as opposed to expanding job opportunities. As a result, even though the unemployment rate is relatively low by historical standards, the portion of the working aged population that is employed has consistently declined since 2000. 37 Also, the unusually long period of job losses and weak employment gains characterized by the three years following the 2001 recession saw an unprecedented number of workers who stopped actively looking for jobs and, hence, are not accounted for in the unemployment rate. 38 The Bureau of Labor Statistics (BLS) reports that in 2004, 22.9 percent of parents with children under 18 did not work, significantly up from the most recent trough in 2000 of 20.6 percent. 39 A 2005 study shows that there are up to 5.1 million jobless men and women who would work if a job were available, but that are not counted as officially unemployed." 40
In addition to the high number of workers who have dropped out of the labor force due to the lack of adequate employment opportunities, many workers are compelled to work fewer hours per week or fewer weeks per year than they would if there were sufficient opportunities. Rates of underemployment are higher than they have been in nearly a decade. 41 Twenty-eight percent of children in low-income families have a parent who either works full-time for part of the year or part-time. Over 40 percent of these low-income working parents reported that they could not find full-time and/or full-year work. 42 Hence, despite the overall recovery of the U.S. economy, and steady employment growth throughout 2004, many families continue to struggle to find work with the hours, stability, and wage rates necessary to adequately support their families.
Jobs Don't Always Lift Families Out of Poverty and Provide Economic Security
Low-wage work erodes our basic values of personal responsibility, hard work, and perseverance and sends the message that work does not pay. 43 About one in every four workers in the U.S. earned poverty-level hourly wages in 2004. 44 The result of
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so many low-paying jobs is that nearly 39 million Americans, including 20 million children, are members of low-income working families—with barely enough money to cover basic needs like housing, groceries, and child care. 45
In an economic downturn, low-skilled, lowwage workers who are new to the labor force are particularly vulnerable to layoffs, reduced work hours, and periods of unemployment. Workers are much more likely to be classified as working poor if they have not achieved higher levels of education. According to the BLS, a worker with less than a high school education is more than eight times more likely to be classified as working poor than a worker with a college education. 46 Furthermore, it is projected that job growth between 2000 and 2010 will continue to be fastest for occupations that require a postsecondary credential (a vocational certificate or an associate's degree or higher), and the income gap is expected to continue to grow between those who have postsecondary education and those who do not. This means that low-skilled workers will likely continue to struggle to make ends meet in the future. 47
Weekly earnings for full-time working women continue to lag behind those of men. 48 While employed women work only an hour less on average than men, according to the BLS, they spend an hour more per day doing household activities and caring for household members, and spend twice as much time providing child care than do their male counterparts. To best fight poverty, we must recognize that the majority of our nation's poor— including the working poor—are women, and adapt solutions to fit their needs. According to the BLS, women who maintain families were more than twice as likely to be among the ranks of the working poor as their male counterparts. 49 If women had higher paying jobs and equal pay for equal work, they could lift their children out of poverty and bring economic stability to their families. The broad and persistent disparities between Blacks and Latinos and their White counterparts hold true where working poverty is concerned as well. Although about seven in 10 workers in poverty were White in 2003, Black and Latino workers remained more than two times as likely to be counted as working poor. 50
Low-Wage Jobs Lack What a Family Needs to Succeed
Low earners are most likely to advance in the labor market when they have access to higher-wage employers who also provide on-the-job training and career ladders. Unfortunately, low-income and especially minority workers living in poor neighborhoods often have limited access to such firms in their local labor markets due to few transportation options and limited information about or contacts in that market. Many parents who leave welfare for work do so for jobs that pay low wages and do not offer health and other benefits. Nor do they tend to move up the job ladder much over time. Thus, most former welfare recipients continue to be poor or near poor, even after entering the labor market, and their prospects for escaping poverty or nearpoverty in the foreseeable future seem low. 51 Furthermore, a recent Brookings Institution report found that Black workers were more likely to be isolated from potential employment opportunities than their White counterparts in metropolitan areas with greater decentralization of employment or job sprawl. 52
In order to remain competitive or secure higher profits, many employers have chosen the low road of freezing wages, reducing benefits, downsizing, using temporary workers, or outsourcing jobs to another part of the country or abroad. Individuals with jobs that provide few benefits such as health insurance and paid leave are more apt to miss work and to have reduced earnings or to lose their job due to family emergencies, disruptions in child care, and transportation problems. Workers in jobs with benefits such as health care and paid vacation are more likely to stay employed. One report found that workers in full-time jobs that provide health insurance have an 80 percent chance of working 18 consecutive months; workers without insurance have a 52 percent chance of staying employed that long. 53
Data from the BLS show that almost half (47 percent) of private sector workers do not have paid sick leave. A study by the Institute for Women's Policy Research showed that 59 million workers lack paid sick leave. 54 Inadequate paid sick leave has consequences: Workers show up at work when they are not healthy, spreading illness to other workers, extending their own period of illness, and impairing their productivity on the job. Parents who must stay home when they are sick or to care for a sick child lose essential earnings and are at risk of being fired; children take longer to recover from illness and medical emergencies if their parents cannot spend time helping them recuperate. When paid and authorized sick leave is not available, working parents are placed at greater risk of losing earnings or even their jobs. Some of these workers will inevitably have to rely on unemployment, welfare, or other forms of public assistance. 55
Eighty-nine million workers in the U.S. currently have fewer than seven days paid sick leave. In addition, a very large share of the workforce (70 percent, or more than 85 million workers) lack paid sick leave to take time off to care for sick family members including young children. 56 While many families cannot reliably count on paid sick leave, working poor families are at highest risk. A study found that 74 percent of working poor parents did not consistently have paid sick leave over a five-year period compared to 43 percent of those above 200 percent of the poverty line. 57
Often, those who are lucky enough to have paid sick leave are not allowed to use it to care for a sick family member. Studies show that about half of working mothers reported they did not get paid when they stayed home to care for their sick children. Yet parental availability is critical for children's physical and mental health. Fifty-eight percent of young parents said they continued to go to work when their children were sick, and of the 42 percent who were able to stay at home with their sick children, more than half said they could do so because they received some type of paid leave. Thirty-four percent of parents reported that caring for their sick children led to difficulties at work, 12 percent said it led to lost pay, and 13 percent to loss of promotions or jobs. 58
Education and Training: A Path Out of Poverty
"Quality education and training are critical to the success of our students, communities, and the economy." The U.S. Chamber of Commerce 59
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State of Americ a' s C h i l d r e n ® 2 0 0 5
Education and earnings are inextricably linked. Millions of Americans who work full-time find they cannot pay for their basic living expenses let alone afford to make investments in their future. The likelihood of being classified as working poor greatly diminishes as workers achieve higher levels of education. Children with full-time employed parents are increasingly likely to be low-income if their parents have not obtained a high degree of educational attainment. Eighty-two percent of children whose parents never finished high school are low-income, compared to 54 percent of children whose parents had a high school degree and only 22 percent of children whose parents had some college. 60 These percentages decrease only slightly when the number of hours worked is taken into account. Seventy-three percent of children whose parents worked full-time year-round but who did not finish high school were low-income, compared to two out of five (43 percent) children whose parents had a high school degree and just over one in seven children (15 percent) whose parents had some college. 61
An adult aged 25 and older who worked fulltime, year-round, typically earned $37,542 in 2004. When working adults' earnings are disaggregated by education, gaps become evident. Workers with a high school degree had earnings of about $31,000, compared to median earnings of more than $50,000 for those with a bachelor's degree. 62 Workers with low educational attainment are not only less likely to earn a livable wage, they are also less likely to find a job.
* In 2000, 87.8 percent of workers with a college degree were employed; this is 12 percent higher than the employment rate of persons whose highest degree was a high school diploma, and 40 percent higher than the employment rate of persons with less than a high school education. 63
* Among women, the differences were even greater—82 percent of those with a college degree were working, an increase of 15 percent compared to those with a high school education and an increase of about 67 percent from those with less than a high school education. 64
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* A national study of unemployment spells between 1996 and 1999 found that those with less than a high school education were unemployed 47 percent longer than college-educated workers. Those whose highest degree was a high school diploma were unemployed 23.5 percent longer than those with at least some college. 65
Having an advanced education has become more important over the last 30 years, as earnings gaps between workers with and without a college education have grown wider. In 1975, the average male high school graduate earned 66 cents for every dollar earned by someone with a bachelor's degree. 66 In 2003, male high school graduates earned only 53 cents for every dollar made by a male with a bachelor's degree. 67
Nationally, almost 28 million adults do not have a high school degree. 68 Employers are reporting a shortage of highly qualified applicants with post high school training. From a business perspective, America's economic success depends on the business community's ability to recognize and use diverse human resources and the talents of workers. Sixty-five percent of non-college jobs require or prefer specific previous experience, 40 percent require training or skill certification, and 50 percent require the applicant complete a skills test. 69 A recent National Association of Manufacturers survey found that, even at the onset of the recent recession, over 80 percent of manufacturers reported a shortage of highly qualified applicants with specific educational backgrounds and skills. 70 Job training and education have been proven to decrease the shortage and assist low-income working families in increasing their wages. According to the National League of Cities, 87 percent of municipalities using job training to assist low-income working families find it an effective strategy. 71
Income and race greatly influence one's chances of going to college. The rapid increase in college tuition costs, which have risen faster than both inflation and family income, deny many young adults the opportunity to reap the social and economic benefits of higher education. Financial barriers prevent 48 percent of college-qualified
high school graduates from low-income families from attending a four-year college; 22 percent of such graduates will not attend any college at all. 72 The racial gap regarding who goes to college has also widened in the last 30 years. 73 Graduation rates also vary by race, with nearly double the number of White students graduating with a bachelor's degree compared to Black and Hispanic students. 74
adults and youth—that have seen significant cuts in recent years have translated into significant lost opportunities both for workers and for the businesses that want to hire them. 76
Eligibility for Unemployment Assistance Is Limited
In spite of the evidence that education and training lead to economic advancement, recent federal policies make it harder for low-income Americans to obtain the education and training they need to move forward in today's economy. In 2003, the average adult in a Workforce Investment Act funded program increased his or her total earnings by $3,260 over the first six months after graduating from the program. 75 Unfortunately, the federal government's investments in workforce development programs over the past two decades have failed to keep pace with the increasing demand for skilled workers. The range of workforce training programs—particularly those targeting low-income
Workers whose incomes fall below the poverty threshold typically experience one or more of the three main labor market problems: unemployment, low earnings, and involuntary part-time employment. 77 Unemployment Insurance (UI) provides an essential support to workers who lose their jobs and is particularly important during times of economic downturn. It helps to prevent poverty by providing a cash payment to eligible workers almost immediately after they become unemployed, helping them to continue to make ends meet in the absence of their lost income. By providing workers the income they need to keep their homes while they find a new job, UI offers workers, their families, communities, and the econ-
WIA One-Stop Centers Do Work
E stablished by the Workforce Investment Act (WIA), first passed in 1998, One-Stop centers deliver employment-related training and services. One-Stop centers are an essential community institution serving families and youth throughout the country, especially those in areas suffering from high poverty and high unemployment. At Arapahoe/Douglas Works! in Aurora, Colorado, job seekers gain the skills necessary for employment in local industries, such as the healthcare industry. The organization works with local Chambers of Commerce and economic development entities to engage and serve employers, ensuring that job training and placements are relevant and appropriate for the local job market. This leads to a successful job-training program for workers while meeting the employment needs of local industry.
The commitment of Arapahoe/Douglas Works! to continuous community partnerships is a key element of its success. The center goes beyond basic job training services by raising additional funding and collaborating with other organizations to expand services. Arapahoe/Douglas Works! connects clients to basic needs and support services, including child support, food, health care, and housing. This is essential to the success of the job training and workforce development program; job seekers need to be secure in their health and human needs to be successful employees. Additional funding also provides for workforce development services specifically for at-risk students within the Youth Works! program. Youth Works! provides services to youth through academic support, work experience, the national Job Corps, mentoring, and leadership development. The program enables youth to be engaged in their local community and prepares them to become more productive adults.
Children's Defense Fund
omy important stability. Research shows that during previous recessions, unemployment benefits have saved an average of 131,000 jobs.
Despite the well-documented positive effects of unemployment insurance, the program suffers from structural problems that unnecessarily limit eligibility, especially among low-income workers and women. Reform of the unemployment insurance system to expand eligibility could extend greatly needed benefits to millions of unemployed workers and their children struggling to make ends meet, while providing effective stimulus to the economy. The workers most likely to be left behind by the UI system are those who are already the most economically vulnerable and in need of the most assistance in staying attached to the labor market.
* Workers with lower earnings and less stable employment are less likely to receive benefits, as they need to work more hours than higherincome workers to meet minimum earnings requirements. Low-wage workers employed at least 35 hours a week are 44 percent less likely than higher wage workers to collect unemployment insurance and women are 15 percent less likely than men to receive benefits when they become unemployed.
* Many states do not cover unemployed workers not seeking full-time work, even if they had worked part-time before becoming unemployed and meet all other eligibility requirements. Only 24 states use the same standards to determine part-time eligibility as they do with full-time workers. More than one in six workers are part-time; and this group is disproportionately low-income and female. 78
* Most states exclude unemployed workers from eligibility if they became unemployed for "personal" reasons. Some states allow good cause for specific reasons, such as lack of day care, medical causes, or domestic violence. A worker- and familyfriendly unemployment system would not deny benefits to people who had become unemployed or were unable to search for work because of compelling domestic circumstances such as caring for sick children or parents, conflicts with work schedules and child care responsibilities or domestic violence.
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Safeguarding Families: The Role of Government Benefits in Family Well-Being
Millions of low-income families are one crisis away from economic catastrophe. In the 1990s, significant progress was made towards ensuring families were better able to make it into the middle class. Many factors contributed to the employment growth of the 1990s, including a strong economy, state and federal welfare reforms, the large expansion of the Earned Income Tax Credit (EITC) in 1993, increased child care spending, increases in the minimum wage in 1996 and 1997, and broadened access to health care outside of welfare. However, the economy went into recession in 2001 and the recovery was very slow. States entered into a period of large budget deficits placing strains on Temporary Assistance for Needy Families (TANF) funds, forcing cutbacks in child care and other services. The pressures from the economy and state budget crises had an impact on employment, child poverty, child care, and welfare participation. 79
These factors made the role of federal government benefits increasingly important. Research has shown that they are effective in bolstering the ability of low-income workers to meet their basic needs. One study showed that those leaving TANF with housing subsidies were more likely to stay off welfare than were those without benefits. 80 An Urban Institute report clearly demonstrates that former TANF recipients who receive other forms of assistance are less likely to return to TANF than those who do not receive assistance. For example, 27.7 percent of those leaving TANF without child care help returned within three months, compared to only 19.5 percent of families who did receive child care assistance. Similarly, 21.7 percent of families with government health insurance subsequently returned to TANF, compared to 32.8 percent of families without such insurance. 81
Low-wage workers account for a surprisingly large segment of the nation's workforce. In 2003, one-quarter of the labor force earned $9.08 per hour or less. For many of these workers, publicly provided income supplements and work supports such as child care subsidies, food stamps, Medicaid/ SCHIP, the Earned Income Tax Credit, and Child
STORIES FROM THE STATES Crucial Assistance Is Only Temporary
Dreama Mollet lives in Columbus, Ohio, and is a single mother with four children. She had to quit a full-time job at the grocery store to care for her sick aunt. In order to remain eligible for the Ohio cash assistance program, she needed to stay employed at least part-time. She now works at a settlement house 30 hours per week and receives both cash and food assistance through the "Ohio Works First" work experience program. The cash assistance is limited to only three months, and Dreama worries that she will not be able to work enough hours to provide for her family once it expires. She does not have a car and can work only in locations served by public transportation.
Tax Credit help to increase job retention, reduce job turnover, and improve child and family well-being.
U.S. Census data show that government programs successfully lift millions of Americans out of poverty. In 2003, due to receipt of government benefits, poverty was reduced by almost half and child poverty was reduced by more than one-third. 82 Moreover, research has shown that if people were able to fully access all of the benefits for which they are eligible, poverty could be reduced by 20 percent and extreme poverty would fall by 70 percent. 83
decrease in welfare rolls and some families improved their circumstances, today we know that many families have moved much farther below the poverty line as a result of benefit reductions and restrictions. The increase in child poverty, poverty in femaleheaded households, and the striking increase in extreme child poverty in recent years indicate an increased need for TANF funding and a need to make poverty reduction the primary program goal.
As extreme poverty is growing faster than poverty, the weakening of the social safety net for children at the bottom of the economic scale becomes a critical policy issue to address. It is important to maintain and provide even more assistance to families through TANF, nutrition programs, housing, the Earned Income Tax Credit, and other critical safety net programs to avoid leaving parents with even fewer resources to meet their children's needs.
Welfare Reform: A Path to Employment or Increased Poverty?
The Temporary Assistance for Needy Families (TANF) law passed in 1996 called for a strict fiveyear time limit on benefits and little opportunity for training and education that leads to better jobs. It is difficult to sort out the effects of the strong economy of the late 1990s, though those who tout the success of welfare reform claim that it is directly responsible for the caseload drop and that the need for TANF is decreasing. While the 1990s saw a
Children younger than six, already the most likely to be extremely poor, were less likely than older children to be covered by TANF in 2000. Among older children in extreme poverty, coverage fell by two-fifths (from 57 percent to 33 percent) while coverage for extremely poor young children dropped by nearly three-fifths (from 61 percent to 26 percent). Prior to welfare reform, children younger than six were more likely to receive cash assistance than their school-aged counterparts. Cash assistance receipt declined by nearly onethird for poor children in single parent families, from 42 percent in 1996 to 29 percent in 2000, while during this period the proportion of children under eighteen who were quite poor and lived with single parents dropped only 8 percent. 84
Has TANF Helped People Find Jobs?
TANF imposed time limits on recipients, and in 2001 families began reaching their five-year lifetime limit for receipt of benefits. Others in states that opted for time limits of fewer than 60 months were already struggling with those limits. A study
Children’s Defense Fund
State of Americ a' s C h i l d r e n ® 2 0 0 5
Who Remains on Welfare?
A s welfare policy has changed, so too has the welfare population. A decade ago, Whites represented the largest proportion of cases, accounting for almost 4 million recipients. However, Whites have exited the welfare rolls faster than Blacks or Latinos, and now Blacks dominate the ranks. Less than one-third of Blacks leaving welfare found a job, compared to over half of Whites. 85 In 2002, according to the Department of Health and Human Services (HHS), 38.3 percent of recipients were Black and 24.9 percent were Latino, while Whites accounted for 31.6 percent. 86
Studies predict that this trend will persist as minority populations spend longer periods on welfare than their White counterparts and as they continue to fair far worse in the job market and wage earnings. 87 Crafting of the welfare policies assumed all groups were on a level playing field, but given the persistent racial divide, minority families face significant challenges as they navigate the welfare system and the job market and remain overrepresented in low-wage jobs.
by MDRC found that nationally, as of December 2001, about 231,000 families reached either a federal or state time limit; at least 93,000 had their welfare case closed due to a time limit and another 38,000 had their benefits reduced. 88 Since the MDRC study, it is almost certain that many more families have reached their time limit, as federal time limits were only starting to kick in when this study was conducted.
Recent research shows that time limits account for one-third of those who leave TANF. 89 Further, the Department of Health and Human Services (HHS) data show that fewer than 2 percent of families are receiving assistance past 60 months—far fewer than the 20 percent allowable exceptions under the TANF law.
found that full-time work is three to four times more likely when a family has secure child care arrangements. 92 According to the latest data, 550,000 children are on waiting lists for child care. This number significantly underestimates the need for care, as only one in three states actually keeps a waiting list. The others simply inform people there is no slot available for them. If all states kept a waitlist, the reported waitlist would be significantly larger. 93 Yet efforts to increase child care funding have been thwarted by the Administration, which has stated that it "would strongly oppose any amendment that increases funding for the Child Care and Development Fund." 94
As welfare caseloads declined by more than half, states used the savings from the reduction in the number of families receiving assistance to provide important work support services like child care and transportation. But, as the value of the block grant declines, states are finding it necessary to eliminate many work incentives. 90 The Government Accountability Office reported that the TANF caseworkers and service providers they visited pointed to transportation difficulties, job shortages, low wages, and lack of services—especially child care—that challenged their efforts to help clients become employed and move toward self-sufficiency. 91
A major study by the Public Health Institute (PHI) examining TANF welfare barriers to work
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Forty-one percent of TANF recipients have not yet completed high school and 76 percent have low levels of literacy. 95 Even a single year of post-secondary education can have a major effect on earning capacity. 96 However, under TANF, states may count higher education as a work activity for only 20 percent of their caseload, so 80 percent of the recipients must either abandon hope of getting more education or squeeze it in on top of their other work activities and family life. As a result, colleges are seeing major declines in enrollment of welfare recipients. 97
TANF Needs a New Focus
A family can expect an average TANF benefit of $412 per month, or an average of $164 per perWhen Families Lose Their Benefits
I n West Virginia, only one of every four former recipients whose benefits ran out because of the fiveyear time limit has been able to get a job, and more than half of those who are working have only been able to find part-time work. The average ex-welfare family earned $6,120 in 2003—only onethird of the poverty level for a family of four. They were twice as likely to have been evicted from their homes, to have run out of food, or have had their utilities cut off since they were kicked out of West Virginia Works, the state's cash assistance program. They also pawned possessions, moved in with someone else, or borrowed money twice as often as before. More than half said they couldn't buy their children a birthday gift or clothes or let them participate in after-school activities because they did not have enough money.
Source: The Associated Press, "Former Welfare Recipients Struggling, Study Says," The Herald Dispatch (September 21, 2004).
son. 98 For two million families on welfare, TANF is often their last resort to sustain themselves. Yet many families eligible for assistance are not receiving it, and those attempting to leave TANF face increasing barriers.
and others have health problems that limit their ability to apply for benefits.
In 2003, the proportion of welfare recipients entering jobs was 34 percent, two percentage points lower than in 2002 and a continuation of the downward trend in workforce participation rates evident over the last four years. 99 At the same time, poverty rates among families that leave TANF are very high, and half of the very poor families with children who are eligible for TANF assistance do not receive it—a number that is increasing. 100 Some of these families are intimidated by the complex application process or eligibility requirements,
Despite these trends, from 2001 through 2005 the TANF debate remained focused on work requirements, participation rates, and arbitrary successes such as the drop in caseloads, rather than on programs that promote work with adequate education and training that have proven to be successful in moving many families toward greater self-sufficiency. In addition, work supports such as child care, food stamps, the Earned Income Tax Credit, and health insurance are essential to successfully getting and keeping parents in jobs. TANF policies must incorporate strategies that ultimately lead to families having the resources available to meet their needs.
Education Pays
A Portland, Oregon, welfare-to-work program incorporating job training, education, job search assistance and more, outperformed other welfare-to-work programs, producing long-term significant increases in employment, earnings, job quality, and employment stability, according to a recent evaluation by the National Evaluation of Welfare-to-Work Strategies (NEWWS). 101 In three NEWWS sites, those who participated in basic education and then went on to post-secondary education or training
had an additional $1,542, or 47 percent increase, in earnings in the third year of follow-up compared to those who participated only in basic education. 102 A 2002 study of the Maine Parents as Scholars program that supports welfare participants while they complete a two- or four-year college degree found that graduates increased their hourly median wages by 46 percent. 103
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STORIES FROM THE STATES
A Long Haul
F aye Carter is married and raising three children, ages 4, 3 and 1 in Logan, Ohio. Her husband makes the long drive to Columbus for work while Faye cares for their children. (If she were to work full-time, at a minimum wage job, her monthly earnings of $893 would not even cover the estimated average monthly child care costs of $1,194 for a family such as hers—not to mention transportation and other workrelated costs). Despite his long hours and hard work, her hus-
band's income of an estimated $25,500 puts the family just slightly above the poverty line.
The Carter family has a little more money to feed the children, thanks to $126 in food stamps each month and Faye regularly visits the food pantry. She says, "They'll give you food if you need it, even at times that aren't scheduled. The pantry always has milk and formula for the kids." Lisa, Faye's mother, notes that "Last year the food pantry wasn't so packed." This year, "People are hungry. They don't have ways to support their families. Jobs are hard to find in Ohio." Lisa complains that you can't go to school and still qualify for child care assistance, yet you need a high school diploma to do cleaning or custodial work. She cites the difficulties of paying for gas and transportation in a rural area and says that doctors are leaving Logan, making it more difficult to take her children to see a pediatrician.
Food Insecurity Is Rising
The story of the Carter family provides a small window into the lives of food insecure families that must rely on services such as food pantries just to get by. A household is defined as food secure if all of its members consistently have access to enough food to allow for active and healthy living. There are 36.3 million food insecure Americans, including more than 13 million children. 104 Of these children, 420,000 experienced food insecurity with hunger in 2003. Moreover, in 3.9 million families, someone had to skip a meal because they were unable to purchase food. 105 These are the highest levels of food insecurity (both with and without hunger) since 1998. The majority of food insecure households have incomes that are near or below the poverty line.
Steadily rising rates of food insecurity among very young patients' families has pediatricians across the country alarmed. Food insecurity leads to many short-term health problems such as higher rates of infection and hospitalization, as well as lifelong developmental consequences for children.
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Compared to 1999, food insecurity was 77 percent more likely to be found in low-income households with children up to three years old, according to data through June 2004 from the Children's Sentinel Nutrition Assessment Program (CSNAP). Infants and toddlers were found to be 95 percent more likely to experience poor diet or hunger compared to 1999. 106
The Food Stamp program is central to alleviating hunger and poverty in the U.S. Food stamp participation closely follows the economic cycle. The number of people receiving food stamps fell by over 40 percent in the late 1990s, largely because of the strong economy. When the economy again weakened, the Food Stamp program was there to serve those in need.
Since 2000, food stamp participation has increased by over 20 percent, reaching 10.6 million children. Some of the increase can be attributed to states improving access to the Food Stamp program, but this increase also was due to continuing high rates of joblessness. Still, the program is not reaching all those who are eligible. Only about
Family Income – Figure 5
Children's Defense Fund
STORIES FROM THE STATES
Caring for Her Children and Parents
Rosetta Jones of Jonestown, Mississippi, works two jobs in order to provide for her four sons. They live together in a trailer with her aunt who is sick with Alzheimer's. Mrs. Jones also cares for both of her parents who live next door. She works as a room attendant in a casino during the day, earning $7.00 per hour, and at an oil mill for four hours during the evenings. However, she does not have a car and depends on friends for rides to and from work. She receives Section 8 housing right now, but dreams of owning a home for the whole family one day.
54 percent of eligible people received benefits in 2002. 107
pay work-related expenses such as transportation and child care.
Affordable Housing Is Basic to Families' Well-Being
In addition to the increase in hunger, food insecurity, and food stamp participation, there has been a continued rise in the number of families that lack adequate housing or are homeless. Housing is the largest single expense for many working families, and more and more families in our nation cannot afford housing. While median incomes have been declining since 2000, housing costs have continued to rise significantly. Due to the combination of these two factors housing has become much less affordable. This is clearly illustrated by the fact that the proportion of renter households living in unaffordable housing has increased from 41 percent in 2000 to 48 percent in 2004. 108
The hourly wage that a worker supporting a family needs to earn to afford a modest two-bedroom home at fair market rent is increasing. 109 One report shows that in 2003 the national median housing wage was $15.37, a 38 percent increase since 1999. In 48 states and the District of Columbia the combined earnings from two fulltime minimum wage workers is not enough to afford fair market rent. 110 High housing costs make it difficult for working poor families to retain employment by leaving them with little income to
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Women, children, and the elderly are over-represented among those with housing problems, and single-parent households are more likely to experience housing difficulties. Children are present in 37 percent of all renter and homeowner households across income levels, but are present in 93 percent of over-crowded households and in 56 percent of households with multiple housing problems such as malfunctioning heating or plumbing systems, overcrowding, and health hazards. Housingrelated health hazards include lead poisoning, asthma, asbestos, radon, and mold. Almost onequarter of households with children are in older housing units with high risks of lead dangers. 111 The high cost of housing-related health dangers includes lost learning for children, lost work days for parents caring for ill children, medical expenses, and special education costs.
Lack of affordable housing was the leading cause of homelessness. In 2004 the request for emergency shelter assistance increased by 7 percent, sometimes forcing families to separate to obtain emergency shelter. Forty percent of the homeless are families with children. Unaccompanied youth, those 18 years of age and younger who are not with a family, comprised 5 percent of the homeless in a 27-city survey. 112
Homeless children face hardships that include frequent changes in schools because their families must search for cheaper places to live, and they
often struggle to catch up with school work or have difficulty forming lasting friendships. They also suffer from anxiety because their families are forced each day to choose between spending money on housing, health care, or other basic needs. Children experiencing homelessness are diagnosed with learning disabilities at twice the rate of other children; they suffer from emotional or behavioral problems that interfere with learning at almost three times the rate of other children; and 21 percent of homeless children repeat a grade because of frequent absences from school, compared to 5 percent of other children. 113
likely to live in a home they buy for a relatively short time, are unlikely to earn a capital gain on any home they buy, and could end up losing the equivalent of one year's rent as a result of their decision to buy rather than rent. 114
Federal Housing Policy Compounds the Problem
Federal housing policy is gradually shifting away from targeted rental assistance for lowincome families toward homeownership. This change in emphasis runs counter to what may be in the best economic self-interest of these families. A recent study concludes that unlike middle- and upper-income homeowners, low-income families receive no tax benefit from homeownership, are
Homeownership may be a desirable and achievable goal for some low-income families, but the priority given to it by the Administration has resulted in a lack of support for the Deparment of Housing and Urban Development's (HUD) largest and most successful rental assistance program. The Section 8 voucher system provides rental assistance to approximately two million households, 60 percent of whom are families with children. Without a reversal in this policy direction, the burden for families challenged by simply keeping a roof over their heads and meeting basic needs will continue to escalate.
Earned Income Tax Credits: A Powerful Anti-Poverty Program
Created in 1975, the Earned Income Tax Credit (EITC) has become the nation's largest anti-
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poverty program, exceeding spending on other programs such as food stamps and TANF. In 2003, more than 4.4 million people and 2.4 million children were lifted out of poverty due to receipt of the EITC. 115 The EITC is a fully refundable federal tax benefit that can be applied to a person's tax liability to reduce or eliminate the amount of taxes owed and provide a refund if the credit exceeds taxes owed. The amount of the credit varies depending on the amount of income the taxpayer earned, whether he or she is married, and how many children are claimed. In 2005, low-income working families with two or more children can receive as much as $4,400 as their credit.
EITC refunds can help families meet current needs as well as provide money to invest in savings. One study found that 83 percent of families said that paying bills such as utilities and rent was one of the top three priorities for their EITC money, and 74 percent of families said that purchasing basic household commodities and clothing was a priority. Fifty percent of the families said they were going to save at least part of their EITC money, and 16 percent were going to pay tuition. 116 The EITC
Place-Based Services Can Boost Earnings
T he Jobs-Plus Community Revitalization Initiative for Public Housing Families (Jobs-Plus) program was a demonstration program carried out between 1998 and 2003. This initiative was fully implemented in public housing developments in Dayton, Ohio; Los Angeles; and St. Paul, Minnesota. It had three main components: employment-related services, rent-based work incentives that allowed residents to keep more of their earnings, and activities to promote neighbor-to-neighbor support for work. The program offered employment services, job search assistance, vocational training, education programs, child care, and transportation assistance in conjunction with financial incentives such as rent breaks, so that an increase in earnings was not automatically offset by an increase in rent. The program allowed for a stabilized rent for up to 36 months.
Residents' earnings were significantly boosted by combining job training, rent incentives, and word-of-mouth promotion. Working-age residents participating in the program at the three sites increased their earnings by an average of 14 percent, or $1,141, annually over what they would have been without the program during the last four years of the study.
Source: Howard S. Bloom, James A. Riccia and Nandita Verma, "Promoting Work in Public Housing: The Effectiveness of Jobs-Plus" Final Report, MDRC, March 2005.
Free Tax Preparation Brings Results
T he Children's Defense Fund Tax and Benefits Outreach effort seeks to ensure that children and working families receive tax assistance, like the Earned Income Tax Credit and the Child Tax Credit, as well as other benefits for which they are eligible. Many non-profits, like Children's Defense Fund, have stepped up efforts to help taxpayers with free tax preparation services. These services, provided at Volunteer Income Tax Assistance (VITA) sites, are helping working families obtain the full value of their tax returns to purchase necessary household items, pay off debt, buy new clothes, or put money in a savings account.
In 2005, Children's Defense Fund's national office coordinated work at six local faith- and community-based organization's VITA sites in Washington, D.C. From January through April of 2005, these VITA sites assisted more than 750 low-income taxpayers in claiming $990,000 in tax refunds and credits. Over $437,000 in benefits were obtained through the federal and state EITC. Nationally, more than $105 million in tax refunds resulted from CDF's direct and indirect coalition work.
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Refund Anticipation Loans: A Deceptive Practice Aimed at Low-Income Taxpayers
Two-thirds of low-income taxpayers who claim the EITC pay commercial tax preparers to complete their taxes, and many pay huge fees to receive their refund one to two weeks earlier. These low-income taxpayers lost over $690 million in loan charges in 2003 and a total of $2.3 billion if the cost of commercial tax preparation is included. 117 The costs can include tax preparation, documentation preparation or application handling fees, electronic filing fees, and exorbitant charges related to Refund Anticipation Loan (RALs).
RALs are loans secured by the taxpayer's tax refund, including the EITC. Approximately 12.7 million RALs were taken out during the 2002 tax season at an average cost of $90 per taxpayer with average annual percentage rates (APR) ranging from 70 percent to 700 percent. 118 The most recent Internal Revenue Service figures indicate that 79 percent of RAL recipients in 2003 had adjusted gross incomes of $35,000 or less. 119 Minority consumers are the most frequent RAL users; 28 percent of African Americans and 21 percent of Latino taxpayers told surveyors they received RALs compared with 17 percent of White consumers. 120
Many low-income families may feel they have little choice but to take out a RAL. The main reason is that RALs enable families to immediately access the amount of money they expect from their tax refunds, rather than waiting one to two weeks for the IRS to process their returns electronically. Because many of these families are unlikely to have the money on hand to pay for all the fees associated with the loan, the commercial tax preparers make it seem easy by deducting these fees first, relieving the families from having to find alternative resources. But because the RAL is a loan, it can actually leave a family in greater financial crisis. Usually, a RAL is paid off once the IRS processes the tax return and transfers the funds. However, if the IRS denies part of the refund for any reason or even withholds it temporarily for audit purposes, interest continues to accrue and the family is responsible. Given their real financial needs, it is unlikely that EITC families budget for this possibility. There is also ample anecdotal evidence that some families, especially those with limited English proficiency, do not fully comprehend that they are taking out a loan.
In middle- and upper-income communities, consumers have access to loans and credit cards at competitive rates, and branch offices of mainstream banks and savings and loans offer a full array of banking services. By contrast, in many low-income minority communities the absence of capital can deter entrepreneurs and limit the expansion of neighborhood businesses. Low-income consumers are forced to patronize fringe financial service providers that charge exorbitant rates for personal loans and limited banking services. 121 According to the Federal Reserve, one out of four families with incomes less than $25,000 does not have either a checking or savings account. 122 A broader population of low- to middle-income families have bank accounts but still rely on highcost non-bank providers to conduct much of their financial business such as check cashing.
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plays an important role in helping low- to moderate-income families meet their basic immediate needs and make ends meet while investing in the local economy.
A total of fifteen states and the District of
Columbia currently have a state Earned Income Tax Credit (EITC) program. Families eligible for the federal EITC are eligible for their state program as well and receive the state benefit in addition to the federal credit.
Recommendations for Moving Forward
No child should be doomed to a life of poverty and reduced opportunities and cut off from the mainstream. Our goal must be to reduce and eliminate child poverty. To do so, we must increase the income of parents raising children. Child advocates, government officials, policy makers, and service providers working together can make progress toward achieving that goal. Government must do its part by making investments in education and training that lead to good jobs and by providing the supports necessary to meet the basic needs of families as they attempt to raise their children out of poverty.
Support policies that make work pay and ensure family friendly workplaces.
* Raise the minimum wage to at least $7.25 an hour to help ensure that workers at the bottom of the earnings scale are not left behind.
* Quality education and training are critical to the success of our communities and the economy and can be an effective tool in reducing poverty. The range of federal workforce training programs—especially those targeting low-income adults and youth—needs to be expanded to keep pace with the growing need for a skilled labor force.
* Ensure that all full-time workers have at least seven paid days off annually to take care of their own and family members' health needs, and that part-time workers have a pro-rated amount of paid leave.
Reform the Unemployment Insurance system so that it treats low-income workers and newer entrants to the labor market more fairly.
* Because of technological advances in records processing, there is no justifiable reason why the
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earnings from an unemployed worker's most recent three months on a job should not be counted in determining eligibility for UI. States should be required to count all of a worker's earnings up to the time when s/he became unemployed—not doing so is unfair to workers who have less stable employment and lower incomes.
* Parents who become unemployed because of a lack of child care or to protect themselves and their children from domestic violence should not lose their eligibility for benefits.
* Unemployed workers who seek part-time employment should not lose their eligibility for benefits if they otherwise qualify.
TANF can be a potent force for enhancing child well-being in the lives of the millions of children currently living in poverty if it focuses on poverty, not caseload, reduction.
* Increase funding for child care so that all eligible families receive the child care for which they are eligible.
* Set work requirements to allow maximum flexibility to achieve the job skills and training necessary to find and maintain well-paying jobs, and differentiate work hours for families with children under six years of age.
* Allow states to use TANF funds to assist all legal immigrant families regardless of when they came into the state.
* Require states to uniformly screen for barriers to work and assess child well-being, and provide flexibility for families to address the barriers in the context of work requirements.
* Adopt sanctioning policies that acknowledge families' good faith efforts to meet requirements.
* Use the funds in the TANF block grant to meet the employment, child care, and educational needs of families, rather than for unproven family formation and marriage promotion programs.
The Food Stamp program provides assistance to vulnerable families who need help buying groceries that meet their basic nutrition needs.
* Maintain the basic structure of the program, which provides a guaranteed benefit to those who are eligible.
* Extend the Food Stamp program to include all documented adult immigrants, regardless of how long they have been in the country.
* Expand education and outreach efforts so that all who are eligible for Food Stamps are informed of their eligibility and are encouraged to apply.
* Make benefit allotments more adequate to meeting the nutrition needs of families.
Having a place to call home is not only a human right but integrally connected to children's health, safety, and ability to learn.
* Increase the overall federal investment in affordable housing and reject further cuts to housing programs vital to families.
* Add 100,000 new Section 8 housing vouchers each year and maintain the structure of the program, which targets resources to the neediest families.
* Create a National Housing Trust Fund to expand the supply of affordable housing for families with children.
EITC is the largest anti-poverty program for families.
* Expand EITC so that families with more than two children receive a greater EITC benefit.
* Avoid creating barriers to accessing EITC through mechanisms such as IRS requiring certification prior to receiving the benefit. This can cause lengthy delays in receiving a refund.
* Prohibit usurious refund anticipation loans (RALs) so that working families are safeguarded from exploitative practices that keep them from retaining all of the EITC they have earned.
* Maintain low-income taxpayer assistance centers so that help is available to taxpayers who need it.
Expand the benefit provided to lowincome families by the Child Tax Credit.
* Make the $1,000 per child credit fully refundable to ensure that the credit benefits lowincome working families who have lower income tax liabilities.
* Or at least set the minimum income threshold at which families begin to qualify for the refundable portion of the CTC at $10,000—the level at which it was originally set in 2001—and deindex it from inflation. This would prevent 9.2 million children from losing the credit because their parents' incomes failed to keep pace with inflation.
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Endnotes
1 Peter G. Gosselin, "If America Is Richer, Why Are Its Families So Much Less Secure?" Los Angeles Times (October 10, 2004). Retrieved from the Internet at http://www.latimes.com/business/la-fi-riskshift 10oct10,1,3999173,print.story on July 28, 2005.
2 Jeffery Sachs, The End of Poverty: Economic Possibilities for Our Time (New York: Penguin Press, 2005): 1.
15 Adam Geller, "CEO pay rises even as questions linger about overcompensation," The Detroit News, Business (April 16, 2005). Retrieved from the Internet at http://www.detnews.com/2005/ business/0504/18/index.htm on July 28, 2005. The daily income amount is based on a 260-day work year of 5 days a week for 52 weeks.
3 David R. Francis, "It's Better to be Poor in Norway than in the U.S.," Christian Science Monitor (April 14, 2005). Retrieved from the Internet at http://www.csmonitor.com/2005/0414/p17s02-cogn.html on July 28, 2005.
4 In 2004 the poverty threshold for a family of four with two parents was $19,157 a year, $1,596 a month, or $52 a day.
5 U.S. Department of Commerce, Bureau of the Census, "Table POV01. Age and Sex of All Peoples, Family Members and Unrelated Individuals Iterated by Income-to-Poverty Ratio and Race," Detailed Poverty Tables for 2004. Retrieved from the Internet at http://pubdb3. census.gov/macro/032004/pov/new01_100.htm on September 14, 2005. Calculations by CDF.
6 U.S. Department of Commerce, Bureau of the Census, March 2001 and March 2005 Current Population Survey. Poverty figures come from Historical Poverty Tables – People, Table 3, at http://www.census.gov/hhes/www/poverty/histpov/hstpov3.html. Extreme Poverty figures come from Detailed Poverty Table POV01 for 2004, http://pubdb3.census.gov/macro/032005/pov/new01_ 050.htm and Table 2 for 2000, http://pubdb3.census.gov/macro/ 032001/pov/new02_000.htm. Calculations by CDF.
7 U.S. Department of Commerce, Bureau of the Census, "Table 3. Poverty Status of People, by Age, Race, and Hispanic Origin: 1959 to 2004," Historical Poverty Tables. Retrieved from the Internet at http://www.census.gov/hhes/www/poverty/histpov/hstpov3.html on September 16, 2005. Calculations by CDF.
8 U.S. Department of Commerce, Bureau of Economic Accounts, National Income and Product Accounts Table 7.1. "Selected Per Capita Product and Income Series in Current and Chained Dollars." Retrieved from the Internet at http://www.bea.gov/bea/dn/nipaweb/ SelectTable.asp? Selected=3#Top on July 28, 2005.
9 U.S. Department of Commerce, Bureau of the Census, "The Changing Shape of the Nation's Income Distribution, 1947-1998," Current Population Reports, Series P60-204, June 2000. Retrieved from the Internet at http://www.census.gov/prod/2000pubs/ p60-204.pdf on July 28, 2005.
10 U.S. Department of Commerce, Bureau of the Census, "Table H-2. Share of Aggregate Income Received by Each Fifth and Top 5 Percent of Households," Historical Income Tables-Households. Retrieved from the Internet at http://www.census.gov/hhes/www/ income/histinc/h02ar.html on September 26, 2005. Calculations by CDF.
11 U.S. Department of Commerce, Bureau of the Census, Income, Poverty, and Health Insurance Coverage in the United States: 2004, Current Population Reports, No. P60-229 (Washington, DC: U.S. Government Printing Office): Table A-3. Calculations by CDF.
12 Congressional Budget Office, Effective Federal Tax Rates 1979-2001 (Washington, DC: April 2004): Table 1-C. Calculations by CDF.
13 Ibid.
14 Lawrence Mishel, Jared Bernstein and Sylvia Allegretto, State of Working America 2004/2005 (Ithaca, New York: Cornell University Press, 2005): 214.
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16 U.S. Department of Commerce, Bureau of Economic Analysis, National Income and Product Accounts Table 1.12. "National Income by Type of Income." Retrieved from the Internet at http://www.bea.gov/bea/dn/nipaweb/TableView.asp?SelectedTable=5 3&FirstYear=2002&LastYear=2004&Freq=Qtr on July 28, 2005. Calculations by CDF.
17 "Strong demand propels profits at U.S. companies 13.5% to a record $1,268 bn," Financial Times (March 31, 2005): 1.
18 U.S. Department of Commerce, Bureau of the Census, Income, Poverty, and Health Insurance Coverage in the United States: 2004, Current Population Reports, No. P60-229 (Washington, DC: U.S. Government Printing Office): Table A-1. Calculations by CDF.
19
Ibid.,Table A-2.
20 U.S. Department of Commerce, Bureau of the Census, "Table H-10. Age of Head of Household: All Races by Median and Mean Income: 1967 to 2004 ," Historical Income Tables-Households. Retrieved from the Internet at http://www.census.gov/hhes/income/ histinc/h10ar.html on September 27, 2005. Calculations by CDF.
21 "Real Earnings Growth Has Slowed and Become More Unequal Under President Bush," Economic-Points-of-Interest-Charts (E-PICS) (Washington, DC: Joint Economic Committee, April 5, 2005). Retrieved from the Internet at http://jec.senate.gov/democrats/ epics/2005_earnings.htm on July 28, 2005.
22 U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index—All Urban Consumers, Series Id: CUUR0000SA0. Retrieved from the Internet at http://www.bls.gov/cpi/ on October 6, 2005.
23 Sylvia Allegretto, Jared Bernstein and Isaac Shapiro, "The Lukewarm 2004 Labor Market: Despite Some Signs of Improvement, Wages Fell, Job Growth Lagged, and Unemployment Spells Remained Long" (Washington, DC: Economic Policy Institute and Center on Budget and Policy Priorities, February 2005). Retrieved from the Internet at http://www.epinet.org/issuebriefs/20050216_ epi_cbpp.pdf on July 29, 2005.
24
Ibid.
25 Sarah Anderson, John Cavanagh, Scott Klinger and Liz Stanton, Executive Excess 2005: Defense Contractors Get More Bucks for the Bang (Washington, DC: Institute for Policy Studies and United for a Fair Economy, 12 th Annual CEO Compensation Survey, August 30, 2005): 15. Retrieved from the Internet at http://www.faireconomy.org/ press/2005/EE2005.pdf on October 4, 2005.
26 CDF analysis of 2004 Current Population Survey data. This number and others in this report are based on CDF analysis and come from a simple count of workers with estimated earnings between $5.15 and $7.25 per hour in 2004, the most recent year for which data are available. 27 Ibid.
28 Economic Policy Institute analysis of 2004 Current Population Survey data. Retrieved from the Internet at http://www.epinet.org/ content.cfm/issueguides_minwage on July 29, 2005.
29 Ibid.
30 National Energy Assistance Director's Association, National Energy Assistance Survey Report (April 2004). Retrieved from the Internet at http://www.neada.org/comm/surveys/NEADA_Survey_2004.pdf on July 29, 2005.
31 The Low Income Home Energy Assistance Program (LIHEAP) began in 1982 and is a federally funded program to help eligible low-income households meet their home heating and/or cooling needs. To find out more, visit the official LIHEAP Web page at http://www.acf.dhhs.gov/programs/liheap/liheap.htm.
publications/ 385/full.pdf April 11, 2005.
32 National Energy Assistance Director's Association, National Energy Assistance Survey Report (April 2004). Retrieved from the Internet at http://www.neada.org/comm/surveys/NEADA_Survey_2004.pdf on July 29, 2005.
33 Tamara Draut and Silva Javier, "Borrowing to Make Ends Meet: The Growth of Credit Card Debt in the '90s," (Demos, A Network for Ideas and Action, September, 2003).
34 Ibid.
35 CDF analysis of Current Population Survey data; annual averages of monthly data from 2000 through 2004.
36 Ibid. The number of children that long-term unemployed parents care for is not the same as the number of children with at least one long-term unemployed parent, as some children might have two long-term unemployed parents.
37 U.S. Department of Labor, Bureau of Labor Statistics, "Employment of the civilian noninstitutional population, 1940 to date," Household Data Annual Averages, Table 1. Retrieved from the Internet at http://www.bls.gov/cps/cpsaat1.pdf on July 29, 2005.
38 Lee Price and Yulia Fungard, "Understanding the Severity of the Current Labor Slump," Economic Policy Institute Briefing Paper (Updated February 19, 2004. Originally published in November 2003).
39 U.S. Department of Labor, Bureau of Labor Statistics, "Employment Characteristics of Families in 2004," Table 5. Retrieved from the Internet at http://www.bls.gov/news.release/ pdf/famee.pdf on July 29, 2005.
40 Katherine Bradbury, "Additional Slack in the Economy: The Poor Recovery in Labor Force Participation During This Business Cycle, Public Policy Brief No. 05-2" (Boston, MA: Federal Reserve Bank of Boston, April 2005). Retrieved from the Internet at http://www.bos. frb.org/economic/ppb/index.htm on July 22, 2005.
41 National Center for Children in Poverty fact sheet: "Parental Employment in Low-Income Families" (Columbia University Mailman School of Public Health, January 2004).
42 Ibid.
43 Beth Shulman, The Betrayal of Work: How Low-Wage Jobs Fail 30 Million Americans and Their Families (The New Press, 2003).
44 Unpublished Economic Policy Institute analysis of 2004 Current Population Survey data.
45 Tom Waldron, Brandon Roberts and Andrew Reamer, Working Hard, Falling Short: America's Working Families and Pursuit of Economic Security (Annie E. Casey Foundation, October 2004). Families are defined as low-income if their incomes are below 200% of the poverty line. Retrieved from the Internet at http://www.aecf. org/publications/data/working_hard_new.pdf on July 29, 2005.
46 U.S. Department of Labor, Bureau of Labor Statistics, Report 983, "A Profile of the Working Poor, 2003." Retrieved from the Internet at http://www.bls.gov/cps/cpswp2003.pdf on July 29, 2005. According to the Bureau of Labor Statistics, "The working poor are those who spent at least 27 weeks in the labor force (working or looking for work)."
47 Jennifer Miller, Frieda Molina, Lisa Grossman, et al., "Building Bridges to Self-Sufficiency: Improving Services for Low-Income Families" (Report from Manpower Demonstration Research Corporation and National Governor's Association for Best Practices, March 2004). Retrieved from the Internet at http://www.mdrc.org/
48 Institute for Women's Policy Research Fact Sheet: "The Gender Wage Ratio: Women's and Men's Earnings," IWPR #C-350 (Washington, DC: Institute for Women's Policy Research, August 2005). Retrieved from the Internet at http://www.iwpr.org/pdf/ C350.pdf on September 28, 2005.
49 U.S. Department of Labor, Bureau of Labor Statistics, Report 983, A Profile of the Working Poor, 2003 (Washington, DC: Bureau of Labor Statistics, 2005). Retrieved from the Internet at http://www.bls.gov/cps/cpswp2003.pdf on July 29, 2005. 50 Ibid.
51 Harry J. Holzer, "Encouraging Job Advancement Among Low-Wage Workers: A New Approach" (Washington, DC: Brookings Institution, May 2004). Retrieved from the Internet at http://www.brookings. edu/dybdocroot/es/wrb/publications/ pb/pb30.pdf on July 29, 2005.
52 Michael A. Stoll, Job Sprawl and the Spatial Mismatch between Blacks and Jobs (Washington, DC: Brookings Institution, February, 2005). Retrieved from the Internet at http://www.brookings.edu/ dybdocroot/metro/pubs/20050214_jobsprawl.pdf on July 29, 2005.
53 Julie Strawn and Karin Martinson, "Steady Work and Better Jobs: How to Help Low-Income Parents Sustain Employment and Advance in the Workforce" (New York, NY: Manpower Demonstration Research Corporation, 2002). Retrieved from the Internet at http://www.mdrc.org/publications/17/full.pdf on July 29, 2005.
54 Vicky Lovell, "No Time to Be Sick: Why Everyone Suffers When Workers Don't Have Paid Sick Leave" (Washington, DC: Institute for Women's Policy Research, 2004). Retrieved from the Internet at http://www.iwpr.org/pdf/B242.pdf on July 29, 2005.
55 Vicky Lovell, Barbara Gault and Heidi Hartmann, "Expanded Sick Leave Would Yield Substantial Benefits to Business, Employers and Families" (Washington, DC: Institute for Women's Policy Research, June 15, 2004). Retrieved from the Internet at http://www.iwpr.org/ pdf/B243.pdf on July 29, 2005.
56
Ibid.
57 Jody Heymann, The Widening Gap: Why America's Working Families Are in Jeopardy and What Can Be Done About It (New York, NY: Basic Books, 2000).
58
Ibid.
59 U.S. Chamber of Commerce, Business Competitiveness Platform, (Washington, DC: U.S. Chamber of Commerce, July 2004). Retrieved from the Internet at http://www.uschamber.com/ publications/reports/0407_bizplatform.htm on July 29, 2005.
60 National Center on Children in Poverty, "The Effects of Parental Education on Income" (Washington, DC: National Center for Children in Poverty, September 2004). Retrieved from the Internet at http://www.nccp.org/media/pei04-text.pdf on July 29, 2005. In this study, "low-income" is defined as twice the federal poverty level of income.
61 Ibid.
62 U.S. Department of Commerce, Bureau of the Census, Detailed Income Tabulations from CPS, "Table PINC-03. Educational Attainment – People 25 Years Old and Over, by Total Money Earnings in 2004, Work Experience in 2004, Age, Race, Hispanic Origin and Sex." Retrieved from the Internet at http://pubdb3.census. gov/macro/032005/perinc/new03_010.htm on September 28, 2005.
63 Julie Strawn, Why Congress Should Expand, Not Cut, Access to LongTerm Training in TANF (Washington DC: Center for Law and Social Policy, February 2004). Retrieved from the Internet at http://www. clasp.org/publications/TANF_Postsec.pdf on July 29, 2005.
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64 Ibid.
65 Ibid.
66 U.S. Department of Commerce, Bureau of the Census, Educational Attainment, Historical Tables, "Table A-3. Mean Earnings of Workers 18 Years and Over, by Educational Attainment, Race, Hispanic Origin, and Sex: 1975 to 2003." Retrieved from the Internet at http://www.census.gov/population/www/socdemo/educ-attn.html on October 4, 2005. Calculations by CDF.
67 This trend is similar among women, for whom the same ratio applies, dropping from 69 cents to the dollar in 1975 to 56 cents to the dollar in 2003.
68 U.S. Department of Commerce, Bureau of the Census, Educational Attainment, Detailed Tables, "Table 1. Educational Attainment of the Population 15 Years and Over, by Age, Sex, Race, and Hispanic Origin 2004." Retrieved from the Internet at http://www.census.gov/population/www/socdemo/education/cps2004. html on October 4, 2005.
69 Harry J.Holzer, "The Low-Wage Labor Market: Challenges and Opportunities for Economic Self-Sufficiency" (Washington, DC: Urban Institute; Prepared for U.S. Department of Health and Human Services, 1999). Retrieved from the Internet at http:// aspe.hhs.gov/hsp/lwlm99/holzer.htm#Employer on July 29, 2005.
70 Nisha Patel, "Why funding for job training matters" (Washington, DC: Center for Law and Social Policy, 2004). Retrieved from the Internet at http://www.clasp.org/publications/training_1pager.pdf on July 29, 2005.
71 Ibid.
72 Shane Hollett, Executive Director of the Ohio College Access Network, spoken in witness testimony to the U.S. Senate Committee on Health, Education, Labor and Pensions. "Promoting Access to Postsecondary Education: Issues for the Reauthorization of the Higher Education Act" (October 16, 2003). A summary of the testimony can be retrieved from the Internet at http://www.collegeaccess.org/ NCAN/ItemPage.aspx?groupid=12&id=254&txtsearch=hollett% 20testimony.
73 David Callahan, Tamara Draut and Javier Silva, Millions to the Middle: Three Strategies to Expand the Middle Class (New York, NY: Demos: A Network for Ideas and Actions, 2004): 17-18. Retrieved from the Internet at http://www.demos-usa.org/pubs/millions_ web.pdf on July 29, 2005.
74 Association of American Colleges and Universities, "Achievement Gap Continues to Challenge Ideal of Equal Educational Opportunity," AAC&U News (Washington, DC: AAC&U, March 2004). Retrieved from the Internet at http://www.aacu-edu.org/ aacu_news/AACUNews04/March04/facts_figures.cfm on July 29, 2005.
75 Employment and Training Reporter, "Earnings gains showed largest increase among WIA outcomes," Employment and Training Reporter 36, No. 11 (Washington, DC: MII Publications, November 8, 2004): 163.
76 Robin Spence and Brendan Kiel, "Skilling the American Workforce 'On the Cheap': Ongoing Shortfalls in Federal Funding for Workforce Development" (Washington, DC: The Workforce Alliance Report, September 2003): 1. Retrieved from the Internet at http://www.work forcealliance.org/twa-funding-analysis-09.pdf on July 29, 2005.
77 U.S. Department of Labor, Bureau of Labor Statistics, A Profile of the Working Poor, 2003 (Washington, DC: U.S. Department of Labor, March 2005, Report 983): 3.
78 National Employment Law Project, Part Time Workers and Unemployment Insurance (New York, NY: National Employment Law Project, March 2004).
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79 Testimony of Mark Greenberg of CLASP to Subcommittee on 21 st Century Competitiveness Committee on Education and the Workforce, U.S. House of Representatives, March 15, 2005.
80 Geri Scott, Private Employers and Public Benefits (Boston, MA: Jobs for the Future, Prepared for Workforce Innovation Networks, February 2004).
81 Pamela Loprest, "Use of Government Benefits Increases among Families Leaving Welfare," Snapshots of American Families, No. 7 (Washington, DC: Urban Institute, August 2003). Retrieved from the Internet at http://www.urban.org/UploadedPDF/310838_ snapshots3_no6.pdf on July 29, 2005.
82 Arloc Sherman, Public Benefits: Easing Poverty and Ensuring Medical Coverage (Washington, DC: Center on Budget and Policy Priorities, revised August 17, 2005). Retrieved from the Internet at http://www.cbpp.org/ 7-19-05acc.htm on October 4, 2005.
83 Sheila R. Zedlewski, Linda Giannarelli, Joyce Morton and Laura Wheaton, Extreme Poverty Rising, Existing Government Programs Could Do More (Washington, DC: Urban Institute, Series B, No. B-45, April 2002). Retrieved from the Internet at http://www.urban.org/ UploadedPDF/ 310455.pdf on July 29, 2005.
84 Avis Jones-DeWeever, "The Children Left Behind: Deeper Poverty, Fewer Supports" (Washington, DC: Institute for Women's Policy Research, Fact Sheet D457a, November 2003). Retrieved from the Internet at http://www.iwpr.org/pdf/D457a.pdf on July 29, 2005. Quite poor children have family incomes that are less than 100 percent and equal to or greater than 50 percent of the poverty line.
85 Leslie L. Clarke, Brenda Jarmon and Merlin R. Langley, People Who Have Left WAGES (Qualitative Study of WAGES, Fall 1999).
86 U.S. Department of Health and Human Services, Administration for Children and Families, "Characteristics and Financial Circumstances of TANF Recipients," TANF Sixth Annual Report to Congress (Washington, DC: Department of Health and Human Services, November 2004): 2. Retrieved from the Internet at http://www.acf.hhs.gov/programs/ofa/annualreport6/chapter10/chap 10.pdf on July 29, 2005.
87 W.K. Kellogg Foundation, "Racial and Ethnic Disparities in the Era of Devolution: A Persistent Challenge to Welfare Reform" (W.K. Kellogg Foundation, A report of research findings from the Scholar Practitioner Program of the Devolution Initiative, December 2001).
88 Dan Bloom, Mary Farrell, Barbara Fink, with Diana AdamsCiardullo, "Welfare Time Limits: State Policies, Implementation, and Effects on Families" (Washington, DC: MDRC, July 2002). Retrieved from the Internet at http://www.mdrc.org/publications/ 51/full.pdf on July 28, 2005.
89 Caroline Danielson and Jacob Alex Klerman, "Why Did Welfare Caseloads Decline?" (Welfare Policy Research Project of University of California and RAND, working paper, revised June 2004).
90 Margy Waller, "Refresher Course in Welfare Reform," The Cincinnati Post (June 21, 2004). Retrieved from the Internet at www.cincypost.com/2004/06/21/margy062104.html on April 13, 2005.
91 U.S. Government Accountability Office, Welfare Reform: Rural TANF Programs Have Developed Many Strategies to Address Rural Challenges, GAO-04-921 (Washington, DC: Government Accountability Office, October 12, 2004).
92 Richard Speigelman and Jean C. Norris, "Child Care Essential Ingredient for Sustained, Full-Time Work for Welfare Recipients" (Alameda Country CalWORKs Needs Assessment and Outcomes Study, September 22, 2004).
93 Heather Boushey and Joseph Wright, "Working Moms and Child Care, Data Brief No. 3" (Washington, DC: Center for Economic and Policy Research, May 5 2004). Retrieved from the Internet at
http:// www.cepr.net/publications/Childcare2004.htm on April 13, 2005.
94 Executive Office of the President, Office of Management and Budget, Statement of Administration Policy: H.R. 4 Personal Responsibility and Individual Development for Everyone (PRIDE) Act (Washington, DC: Office of Management and Budget, March 29, 2004).
95 M.K. Tally, Job Training and Education Fight Poverty (Washington, DC: Institute for Women's Policy Research, Fact Sheet D444, revised April 2002). Retrieved from the Internet at: http://www.iwpr.org/ pdf/d444.pdf on April 15, 2005.
108 U.S. Department of Commerce, Bureau of the Census, Gross Rent as a Percentage of Household Income in the Past 12 Months, Table B25070, 2004 American Community Survey. Calculations by CDF. The Department of Housing and Urban Development considers housing to be unaffordable if the rental cost is greater than 30 percent of household income.
96 R.J. LaLonde, "The Promise of Public Sector-Sponsored Training Programs," Journal of Economic Perspectives 9, No. 2 (1995): 149-168.
97 Rebecca Gordon, Cruel and Usual: How Welfare 'Reform' Punishes Poor People (Oakland, CA: Applied Research Center, February 2001). Retrieved from the Internet at: http://www.arc.org/downloads/arc 010201.pdf on April 15, 2005.
98 Average number per month in fiscal year 2001.
99 Employment and Training Reporter, "Earnings gains showed largest increase among WIA outcomes" (Washington, DC: MII Publications, November 8, 2004), Employment and Training Reporter 36, No. 11 (Nov 2004): 163.
100 Shawn Fremstad, "Recent Welfare Reform Research Findings: Implications for TANF Reauthorization and State TANF Policies" (Washington, DC: Center on Budget and Policy Priorities, January 30, 2004). Retrieved from the Internet at http://www.cbpp.org/ 1-30-04wel.htm on April 13, 2005.
101 Susan Scrivener, Gayle Hamilton, Mary Farrel, et al., "National Evaluation of Welfare-to-Work Strategies: Implementation, Participation Patterns, Costs and Two-Year Impacts of the Portland (Oregon) Welfare-to-Work Program" (New York, NY: Manpower Demonstration Research Corporation, Prepared for the U.S. Department of Health and Human Services, May 1998). Retrieved from the Internet at: http://aspe.hhs.gov/hsp/isp/Portland/xsportld. htm#Notes on April 15, 2005.
102 Julie Strawn, "Why Congress Should Expand, Not Cut, Access to Long-Term Training in TANF" (Washington, DC: Center for Law and Social Policy, February 2004). Retrieved from the Internet at http:// www. clasp.org/publications/TANF_Postsec.pdf on April 20, 2005.
103 Ibid.
104 Mark Nord, Margaret Andrews, and Steven Carlson, Household Food Security in the United States, 2003, Table 3, Food Assistance and Nutrition Research Report, No. (FANRR42) (Washington, DC: Economic Research Service, U.S. Department of Agriculture, October 2004). Retrieved from the Internet at http://www.ers.usda. gov/publications/fanrr42/fanrr42b.pdf.
105 Mark Nord, Margaret Andrews and Steven Carlson, Household Food Security in the United States, 2002. Food Assistance and Nutrition Report, Number 35 (Washington, DC: Economic Research Service, U.S. Department of Agriculture, 2003). Retrieved from the Internet at http://www.ers.usda.gov/publications/fanrr35/ on April 18, 2005.
106 Mariana Chilton and Angelo Giardino, "Who's Looking Out for the Little Ones?" Philadelphia Daily News (November 2, 2004). Retrieved from the Internet at http://www.philly.com/mld/dailynews/ news/opinion/10075461.htm on April 20, 2005.
107 Laura A. Castner and Allen L. Schrim, Reaching Those in Need: State Food Stamp Participation Rates in 2002" (Mathematica Policy Research, Inc., March 2005). Retrieved from the Internet at http://www.mathematica-mpr.com/publications/pdfs/fns02rates.pdf.
109 The Fair Market Rent (FMR) is the amount in a given geographical area that is sufficient to cover rental charges for the lowest-cost 40 percent of the housing units. Every year HUD sets the FMRs for each area and at different levels for units depending on the number of bedrooms. FMRs include utility costs (except for telephones).
110 National Low Income Housing Coalition, "Out of Reach 2004: America's Housing Wage Climbs" (Washington, DC: National Low Income Housing Coalition report, December 2004). Retrieved from the Internet at http://www.nlihc.org/oor2004/ on June 22, 2005.
111
Joint Center for Housing Studies of Harvard University,
State of the Nation’s Housing, 2003
(Cambridge, MA: Joint Center for
Housing Studies of Harvard University, June 2003). Retrieved from the Internet at www.jchs.harvard.edu on April 18, 2005.
112 The United States Conference of Mayors, U.S. Conference of Mayors- Sodexho Hunger and Homelessness Survey 2003 (The United States Conference of Mayors, December 2003). Retrieved from the Internet at www.usmayors.org on April 18, 2005.
113 The Better Homes Fund, "America's Homeless Children: New Outcasts," A Public Policy Report from The Better Homes Fund (Newton, MA: Better Homes Fund, 1999).
114 Dean Baker, Who's Dreaming? Homeownership among Low Income Families (Washington, DC: Center for Economic and Policy Research, January, 2005). Retrieved from the Internet at http://www.cepr.net/ publications/housing_2005_01.pdf on April 20, 2005.
115 Robert Greenstein, "The Earned Income Tax Credit: Boosting Employment, Aiding the Working Poor" (Center on Budget and Policy Priorities, updated August 17, 2005). Retrieved from the Internet at http://www.cbpp.org/7-19-05eic.htm on October 4, 2005.
116 Timothy M. Smeeding, Katherin Ross Phillips and Michael O'Connor, "The EITC: Expectation, Knowledge, Use, and Economic and Social Mobility," National Tax Journal 53 (December 2000): 1187-1210.
117 CDF calculations based on IRS SPEC Return Data Base, Tax Year 2002 Return Information (July 2004). The $2.3 billion figure includes tax prep costs for 67 percent of EITC recipients and RAL costs for 34.6 percent of EITC recipients.
118 Chi Chi Wu and Jean Ann Fox, "All Drain, No Gain: Refund Anticipation Loans Continue to Sap the Hard-Earned Tax Dollars of Low-Income Americans: 2004 Refund Anticipation Loan Report" (Washington, DC: National Consumer Law Center and Consumer Federation of America, January 2004). Retrieved from the Internet at http://www.consumerlaw.org/initiatives/refund_anticipation/content/ 2004RALReportFinal.pdf on July 29, 2005.
119 Ibid.
120
Ibid.
121 The Enterprise Foundation, Building Individual Assets; Individual Development Accounts (IDA) and Community Development Financial Institutions (CDFI) (Columbia, MD: Enterprise Foundation, October 1999). Retrieved from the Internet at http://www.enterprisefoundation.org/model%20documents/1108.pdf on July 29, 2005. 122 Arthur B. Kennickell, Martha Starr-McCluer and Brian J. Surette, "Recent Changes in U.S. Family Finances: Results from the 1998 Survey of Consumer Finances," Federal Reserve Bulletin (January 2000). Retrieved from the Internet at http://www.federal reserve.gov/pubs/bulletin/2000/0100lead.pdf on July 29, 2005.
Children's Defense Fund
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HEVERSHAM PARISH COUNCIL
Unconfirmed Minutes of the Parish Council meeting held on Thursday 8 July 2021 at 7.30pm in The Athenaeum, Leasgill. This meeting followed Covid-19 government guidance with regard to village halls and community centres including social distancing and the wearing of masks
Present – Cllrs. Peter Clarke (Chairman), Brian Rendell, Tom Grindey, Elizabeth Moffat (from 8pm) and Adele Shepherd; County Cllr. Roger Bingham; the Clerk and no members of the public
103/21 Apologies
Apologies were received from Cllrs. Adrian Bland and Iain Richards (reasons noted) and after the meeting from District Cllr. Kevin Holmes, who had been told to self-isolate
104/21 Minutes
Resolved that the minutes of the meeting held on 17 June 2021 be confirmed as a true record and be signed by the Chairman
105/21 Requests for Dispensation
None
106/21 Declarations of Interest
None
107/21 Public Participation
None
108/21 Ongoing Items
* B4RN: Cllr. Richards had forwarded a note that he was still waiting for a reply from B4RN particularly regarding when the rest of the village would be connected
* What's Back On in Heversham: The production of a leaflet by the end of July was in hand
* Cllrs. were reminded that the new Dallam School Headteacher (Ms Rachael Williams), the new Head of Boarding (Mrs Maria Loddo) and Mr John Watton (the council contact) were to attend the meeting on 16 September 2021
Cllr. Rendell had confirmed with Mrs. Mary Capstick the purchase of a commemoration seat to be located at the playground in memory of Cllr. Gordon Capstick and Cllr. Rendell was authorised to purchase one from Haverigg
* Prison at a cost in the region of £165 and to purchase a plaque
* It was agreed to hold the adjourned Annual Parish Meeting on 7 October 2021 and that it would include the usual reports; a talk by County Cllr. Bingham on Heversham's history; a presentation on Dark Skies and the promotion of wild flowers and wildlife; a discussion as to how the parish coped with the pandemic; and celebration of the B4RN installation
109/21 Reports
a. There was no report as District Cllr. K. Holmes was self-isolating
b. County Cllr. Bingham reported regarding the current Covid position locally with the number of cases in Cumbria being four times the national average. Some popular summer events had been cancelled again but the Westmorland County Show is to take place over two days in September. The two local hospitals were both expanding their facilities. Councils will now have to tackle the social and financial costs of the epidemic. He also expressed his disquiet that a meeting had taken place with a County Council official regarding the double yellow line gaps without his knowledge or involvement. The Council apologised for his non-involvement in the meeting
c. The Athenaeum: No report other than made in previous meetings
110/21 Planning
i) It was noted that no planning applications had been submitted to SLDC and circulated to members of the Council since the last meeting
ii) It was noted that the following planning application had been notified as approved by SLDC since the last meeting: TR/2021/0099 Tower House, Heversham Fell conifer
iii) It was noted that the following planning application had been notified as refused by SLDC since the last meeting: SL/2021/0484 Spout House, Heversham Single storey colour coated metal clad steel framed garage and improvements to access by an existing gateway iv) It was noted that no report had yet been received from SLDC regarding the reported development without permission
v) The Chairman reported that the Neighbourhood Plan group had met regarding the Local Plan and that he had attended the review briefing on 21 June 2021. The group recommended and it was agreed that they should aim to ensure that the Neighbourhood Plan should fit within / alongside the Local Plan by monitoring the process in a passive role. They should also remain alert to any realistic opportunities for more affordable housing
111/21 Highways / Footpaths / Trees and Woods Highways:
a) The Clerk referred the Council to the CCC Highways Dept HIAMS project (see items 115/21e and 115/21g)
b) The Chairman reported that there was to be a further meeting in August with Stainton and Sedgwick Parish Councils and Hincaster Parish Meeting regarding making a concerted approach to the proposals for speed limits and to improving road safety in the area between the A65 and the A6
c) The Clerk reported that a meeting had been held with CCC Highways Dept with regard to removing the double yellow line gaps (parking spaces) between Crow Wood and the Playground and that finance was the stumbling block.
County Cllr. Bingham had been asked about available CCC funding
d) Several hedges were restricting pavements. Cllr. Shepherd agreed to contact Plumtree Hall and the Clerk was asked to contact Dallam School with requests that the hedges be trimmed
Footpaths/Tracks::
i) Details were awaited of the existing cycleways and cycle paths in Heversham parish and possible necessary improvements
ii) It was agreed that the Footpaths Group should be refreshed
iii) The kissing gate on Heversham Head had been replaced. The possibility of a permissive path down to Mabbin Hall Lane and a stile by the mast was being explored
iv) County Cllr. Bingham was supplying the text to go on the map / visitor information noticeboards at each end of the village. He had already supplied a longer text. It was agreed that this should be used as a leaflet, published by the Council, which he offered to finance
v) The continuation of the licence for the old railway line had not yet been resolved with Dallam School and the discussion regarding the condition of the path had therefore been deferred
Trees and Woods:
i) It was agreed to proceed with the Quarry Wood quote received by Cllr. Bland in the amount of between £1,200 and £1,400. A meeting was to be arranged to resolve which trees were to be dispatched. The Clerk had been informed by SLDC that a locality grant could be used for the purpose of making the wood a local amenity
ii) Cllrs. were asked to identify possible locations for the Queen's Platinum Jubilee Green Canopy initiative and it was agreed that it should be a discussion item at the Annual Parish Meeting
112/21 Playground Report
i) Cllr. Rendell had inspected the playground since the last meeting, continued to monitor the equipment and would carry out the inspections until the next meeting. He had removed mud from the entrance
ii) It was agreed to replace the two picnic tables at a cost of approx. £350
iii) The Clerk had submitted a grant application for £8,000 to the Walney Extension Community Fund towards the finance for the next phase of the improvements
113/21 Climate Change / Community Energy Projects
It was agreed to set up a working group consisting of volunteer councillors, plus other parishioners with an interest in the subject, to consider the scope for responses in the parish to climate change and community energy projects. It was agreed that Cllr. Richards should be the Chair of the group. It should report back to the Council with advice and recommendations as appropriate and in any event by April 2022
114/21 Finance
a) It was noted that there had been the following receipt since the last meeting: J Thacker & Sons Ltd – field of dreams rent - £380.00
b) The following payments were approved:
M R Richardson – salary & expenses to 31/7/21 - £1,275.38 – cheque 583
HMRC – PAYE re M R Richardson - £277.20 – cheque 584
The Athenaeum – annual maintenance contribution - £300.00 – cheque 585
St Peter's Church – annual churchyard maintenance contribution - £500.00 – cheque 586
Dallam School Charitable Trust – playground rent - £1.00 – cheque 587
CALC – course fee - £15.00 – cheque 588
A Thexton – rebuild wall & kissing gate on Heversham Head - £252.00 – cheque 589
Npower – street lighting electricity (2 months to to 31/5/21) - £82.25 – cheque 590
c) The budget comparison 2020/21 was received and noted
d) Resolved that it be noted that the closing bank balance at 30 June 2021 was £20,483.66 which had been reconciled with the bank account and that the bank statement be counter-signed by the Chairman
115/21 Correspondence
The following correspondence received and not included as an item on this agenda was noted:
a. Further items from SLDC, CCC and Cumbria Police giving information re coronavirus (covid-19), testing and vaccination matters
b. SLDC – South Lakeland Plan Review – "Issues and Options" stakeholder virtual workshop on 14/7/21 (emailed to Cllrs.18/6/21)
c. CALC – Analysis of local council precept data 2021-22 (emailed to Cllrs 23/6/21)
d. CCC – Rural Community Network Event on 28/6/21 – community ownership of digital connectivity networks (emailed to Cllrs 25/6/21)
e. CCC – HIAMS project: "One Front-Door" approach for Parish Councillors (emailed to Cllrs.30/6/21)
f. SLDC – Locality Services newsletter (emailed to Cllrs.5/7/21). The Clerk was asked to write to The Athenaeum committee to ask if they would like to install an electric vehicle charging point in The Athenaeum car park
g. CALC – Link to video of 24/6/21 HIAMS briefing (emailed to Cllrs.6/7/21)
116/21 Westmorland Gazette – Matters from this meeting to be reported for the Westmorland Gazette:
* Parishioners with an interest in the possibility for any local action in response to climate change to contact the Clerk (also to be included in Next Door)
117/21 Items for Information- no decisions or action permitted
* Cllr. Grindey reported that there was a problem with the defibrillator cabinet fan
118/21 Items for consideration for a future agenda
* Heversham Village Heritage Exhibition – possible consultation later in the year
*
The Queen's Platinum Jubilee celebrations in June 2022 – put on next agenda
119/21 Date of next meeting
It was agreed that the next meeting of the Parish Council will be held on Thursday 16 September 2021 and will commence at 7.30pm in The Athenaeum, Leasgill
The meeting closed at 9.40pm
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M. Market Study Reservation Process, Guidelines and Approved Analyst List
Last Modified: 11/30/2017
Market Study Information
The market study must be no more than six (6) months old at the time of VHDA application submission.
- A market study that is greater than six months old, but less than twelve months oldandhas no material changes, must meet VHDA Market Study Guidelines. The analyst must submit a new market studyorsend an update letter that states "No material change" and "In compliance with 2017 Market Study Guidelines."
- No study over 12 months old will be accepted
If VHDA determines that, based upon information from its own loan portfolio or its own market study, inadequate demand exists for the housing units to be produced by an Applicant's proposed development, it may exclude and disregard the Application.
Market Analyst Reservation Process
1. Selection of the Market Study Analyst must be made by the LNI due date.
2. The owner/developer accesses the LNI system via vhda.org.
3. Select 'New Notification' or 'Existing Notification'
4. Select Notice Type (top of form)
5. Type in name of project
6. In the section titled 'Market Analyst', click Request Market Analyst button
7. Select analyst
8. Click 'Request Approval'
While this concludes the market reservation process, you are still required to submit a completed LNI form for every application submitted for LIHTC consideration.
9. The system will send an email to VHDA with a copy to you.
10. VHDA can approve, reject or cancel your request with comment.
Before your request is approved, you can cancel and choose another analyst. Otherwise, you will have to contact VHDA to choose another analyst.
11. When 'approved' by VHDA, an email acknowledgment will be sent to you and the analyst.
12. Unless declined by the analyst, this concludes your reservation process.
If declined, VHDA will change the system status to 'rejected', resulting in a system notification to you (after which you will restart the process of selecting a new analyst – start at #1 above).
2018 Market Study Guidelines
The Internal Revenue Code and the Qualified Allocation Plan ("QAP") of Virginia require the submission of a market study in connection with an application for Low Income Housing Tax Credits (LIHTC).
VHDA, in accordance with Section 42(m)(1)(A)(iii) of the Internal Revenue Code, requires that the entity preparing the market study be a disinterested party, approved by VHDA ("the credit agency"). Accordingly, the analyst cannot have any interest in the development or have a relationship with the owner of the development.
All applicants applying for Low-Income Housing Tax Credits (LIHTC) are required to submit a market study at the time of application. Failure to submit the market study by the stated deadline will disqualify the application.
Only VHDA-approved market analysts will be allowed to complete market studies for developments seeking a LIHTC reservation. Developers select the market analyst via VHDA's LNI system (see 2017 Manual for complete instructions). Please note that analysts are limited in the number of studies they can provide for the competitive period. Fees are negotiated by the applicant.
A developer submitting an application for a development that will be funded with both 9% and 4% tax credits, must submit a separate market study for the 9% project and the 4% project.
VHDA has no contractual relationship with the preparer of the market study. Market studies are procured directly by the LIHTC applicant and accordingly, the applicant is the client of the market analyst. Therefore, the market study should be addressed directly to the client and any representations made by the market analyst should not directly or indirectly communicate that the market analyst is representing VHDA or in any way acting for, at the request of, or on behalf of VHDA. The analyst, however, must identify VHDA as an authorized user of the market study, noting that VHDA may rely on the representations made therein.
The market study must be submitted to VHDA by the LIHTC applicant.
The market study should be in electronic, PDF format. VHDA should be able to select, copy and cut text.
In reviewing any LIHTC application and the corresponding market study, VHDA at its sole discretion may request supplementary market data from the analyst or commission an additional market study. The market analyst conducting this additional work, will be commissioned and compensated directly by VHDA, and in such transaction, VHDA will be the client of the market study preparer.
Any market study submitted to VHDA in connection with a LIHTC application will remain VHDA's possession and may continue to be relied upon by VHDA in determining the market feasibility of the proposed development, regardless of any circumstances that might exist between the LIHTC applicant and the market study analyst or firm.
On occasion, there are inconsistencies between certain representations in the LIHTC application and representations in the market study pertaining to various development attributes, such as architectural features, unit amenities, site amenities, etc. In these instances, VHDA will rely only upon representations made in the LIHTC application, including supporting application documentation, as the basis for any LIHTC allocation. If the degree of inconsistency implies a disconnection between the applicant and the market analyst, then the market study may not be approved and the LIHTC application may be disqualified.
No LIHTC reservation will be made until VHDA has determined that a sufficient analysis of demand for the proposed development has been completed. Each report must meet all market study requirements, including, the inclusion of specific data, required calculation methods and report format. Furthermore, reports must be written and contain sufficient information, analysis and supporting documentation to provide VHDA with an understanding of the market data presented, the analysis of the data, and the conclusion(s) of such data and its relationship to the subject property. The market study should lead the reader to the same or similar conclusion(s) reached by the analyst. If these requirements are not met, then the study and the entity which prepared it may not be approved.
For VHDA purposes, the date of the site inspection is the Effective Date of the report. The Effective Date must be obviously stated on the cover page or in the Executive Summary section of the report. For a market study with an Effective Date that is 6 to 12 months old at the time of submission, if there are no material changes to the development and/or market, the analyst can provide a letter stating "No material changes since last report dated…" If there are material changes, the market study must be updated to include detailed discussion about those changes. No market study greater than 12 months old will be accepted, meaning a site inspection by the market analyst must occur within 12 months of VHDA's application deadline.
Market studies for LIHTC developments will model the National Council of Housing Market Analysts' (NCHMA's) Model Content Standards (Version 3.0) , as well as its Market Study Terminology , Market Study Index and FAQs (for Model Content Standard).
Section A (VHDA & NCHMA Model Content Standards): Executive Summary
Section B (VHDA & NCHMA Model Content Standards): Introduction and Scope of Work
Section C (VHDA & NCHMA Model Content Standards): Project Description
In addition to NCHMA requirements under this section, the analyst must discuss:
1. Construction Type - New Construction, Rehabilitation, Adaptive Reuse
2. Occupancy Type - Family, Elderly
3. Indicate if the proposal is a scattered site development
4. Income Restrictions: Use the applicable income restrictions of the proposed development. Analysts must take the income and occupancy restrictions indicated in the LIHTC application into account when estimating demand.
5. Site amenities of one phase of a development cannot be included as amenities in subsequent phases of a development.
Section D (VHDA & NCHMA Model Content Standards): Location
Section E (VHDA & NCHMA Model Content Standards): Market Area Definition
In addition to NCHMA requirements under this section, the analyst must consider:
1. All sites in a scattered site development must be within the boundaries of the primary market area.
2. Primary market areas are prohibited from being defined using concentric rings.
3. Analysts are encouraged to be conservative in defining the primary market area.
4. Do not include secondary or tertiary markets.
5. Primary market areas deemed to be inappropriate by VHDA will cause the market study/analyst to be rejected and thereby cause the application to be disqualified.
Section F (VHDA & NCHMA Model Content Standards): Employment & Economy
Section G (VHDA & NCHMA Model Content Standards): Demographic Characteristics
In addition to NCHMA requirements under this section, the analyst must discuss:
1. Elderly is defined as 65 and older.
2. The number of owner and renter households (if appropriate, breakout by elderly/non-elderly)
3. Households by income (if elderly development, indicate income distribution of elderly households only)
4. Renter households by number of persons in the household
5. At a minimum, use the previous year's data and five-year projections (i.e. if your study is completed in 2017, you will use 2016 data and projections for years 2017 - 2021).
Section H (VHDA & NCHMA Model Content Standards): Competitive Environment
In addition to NCHMA requirements under this section, the analyst must consider the following:
1. All LIHTC developments located within the primary market area must be included in the analysis.
2. Provide a detailed analysis of the impact of the proposed project on existing, competitive, LIHTC properties in the primary market area.
3. Proposed rural developments for which a sufficient number of comparable properties does not exist, the analyst must select at least three (3) comparable developments in adjacent localities with similar characteristics to be included in its analysis.
4. Family and elderly developments should not be considered as competitive with each other.
Section I (VHDA & NCHMA Model Content Standards): Affordability Analysis, Demand Analysis, Capture Rates and Penetration Rates
In addition to NCHMA requirements under this section:
1. 2016 is the base year, with a minimum forward projection to 2017.
2. In instances where greater than 20% of the proposed units are comprised of 3BR and 4BR units, the analyst must refine the analysis for those large units. Failure to account for this may result in overstated demand.
3. Analysts should assume that family households are able to pay no more than 35% of gross income towards total housing costs and that elderly households are able to pay no more than 40% of gross income towards total housing costs. The demand analysis must clearly indicate the minimum and maximum income range for each targeted group.
For applicants proposing developments with Section 8 project-based rental assistance analysts should use the lesser of maximum allowable LIHTC rents or proposed rents based on income targeting indicated in the application in determining affordability.
For applicants proposing developments with market rate units, the analyst must make a reasonable determination of a maximum income level beyond which a household would not likely be a participant in the rental housing market. Assumptions used in making this determination must be clearly stated in the report.
For applicants submitting an application for a development that will be funded with both 9% and 4% tax credits, the capture and penetration rate analyses should be done for the total number of units expected to come online between both the 4% and 9% projects.
4. Analysts are required to use net demand in calculating capture rates and the absorption period. Net demand should be determined by subtracting the supply of vacant comparable units in the PMA, completed or pipeline, from total demand. Demand, Supply, Net Demand and Total Absorption Period should be indicated as follows:
NET DEMAND
PROPOSED UNITS
CAPTURE RATE
ABSORPTION PERIOD
Project Wide Capture Rate - LIHTC Units
Project Wide Capture Rate - Market Units
Project Wide Capture Rate - All Units
Project Wide Absorption Period (Months)
New Rental Households: determine new units in the primary market area based on projected rental household growth. The projected population must be limited to the target group, age and income appropriate. Demand for each target group must be shown separately.
Existing Households: The sum of demand from rental household growth and demand from all components of existing households will constitute Total Demand.
[x] 'Over-burdened' is defined by VHDA as households paying more than 35% of gross income (40% if elderly) for gross rent. Analysts are encouraged to be conservative.
[x] Households in substandard housing (i.e. overcrowded and/or lack of plumbing): Must be age and income group appropriate. Analysts must use their knowledge of the market area and the proposed development to determine if demand from this source is realistic. Analysts are encouraged to be conservative.
[x] Elderly homeowners likely to convert to rental housing: This component may not comprise more than 20% of total demand. The analyst must provide a narrative describing how these numbers were derived. Analysts are encouraged to be conservative.
[x] Existing qualifying tenants likely to remain after renovation: This component of demand applies only to existing developments undergoing rehabilitation.
In addition to the above, the analyst is free to state other measures of demand in the body of the report. These statements must be fully explained as to where such demand is being derived, e.g. pent-up demand, tertiary demand, or demand from existing tenants in other rental properties.
Section J (VHDA & NCHMA Model Content Standards): Local Perspective of Rental Housing Market and Housing Alternatives
Section K (VHDA & NCHMA Model Content Standards): Analysis/Conclusions
Section L (VHDA & NCHMA Model Content Standards): Other Requirements
NOTE: #5 in this Section is not required by VHDA.
In addition to NCHMA requirements under this section, the analyst must include and affirm (by signature) the following:
1. I have made a physical inspection of the site and market area.
2. The appropriate information has been used in the comprehensive evaluation of the need and demand for the proposed rental units.
3. To the best of my knowledge the market can support the demand shown in this study. I understand that any misrepresentation in this statement may result in the denial of participation in the Low Income Housing Tax Credit Program in Virginia as administered by VHDA.
4. Neither I nor anyone at my firm has any interest in the proposed development or a relationship with the ownership entity.
5. Neither I nor anyone at my firm nor anyone acting on behalf of my firm in connection with the preparation of this report has communicated to others that my firm is representing VHDA or in any way acting for, at the request of, or on behalf of VHDA.
6. Compensation for my services is not contingent upon this development receiving a LIHTC reservation or allocation.
______________________________________ _____________________
Market Analyst
Date
Market Study Firm
1 Allen & Associates
VHDA Approved Market Analysts Listing (LIHTC)
LIHTC Experience Geographic
Location
Charlotte, NC
Principal Name
Jeff Carroll
Includes…
family, elderly
Preference all areas
Contact Info
3116 Glen Summit Drive
| Bowen National Research, LLC | Pickerington, OH | Patrick Bowen | family, elderly, special needs | all areas |
|---|---|---|---|---|
| CDS Realty Company | Richmond, VA | C. Douglas Schepker, MAI, CRE | family | Central VA |
| Colliers International (formerly MG Miller & Associates) | Richmond, VA | Michael G. Miller, MAI, SRA, AI-GRS, CCIM, FRICS | family, elderly, special needs | all areas |
| Danter Company | Columbus, OH | Terry Hall | family, elderly, special needs | all areas |
| EAJoseph Appraisal & Consultation | Richmond, VA | Eugene A. Joseph, Jr., MAI, SRA, AI-GRS | family, elderly, special needs | all areas |
| Fielder Group Market Research, LLC | Lexington, KY | Elizabeth K. Rouse | family, elderly, special needs | all areas |
| Gibson Consulting, LLC | Douglasville, GA | Jim Howell, GM and Senior Analyst | family, elderly, special needs | all areas |
| Gill Group | Dexter, MO | Samuel L. Gill, MAI | family, elderly | all areas |
| John Wall & Associates | Anderson, SC | John Wall | family, elderly | all areas |
| Koontz & Salinger | Raleigh, NC | Jerry M. Koontz | family, elderly | all areas |
| LDS Consulting Group | Newton, MA | Lynne D. Sweet | family, elderly, special needs | |
| Lea & Company | Corona Del Mar, CA Omaha, NE Merriam, KS | Byron N. Lea, MAI | family, elderly, special needs | all areas |
VHDA Approved Market Analysts Listing (LIHTC)
| National Land Advisory Group | Columbus, OH | Richard A. Barnett | family, elderly | all areas |
|---|---|---|---|---|
| Novogradac & Co LLP | Bethesda, MD | H. Blair Kincer, MAI, CRE | family, elderly | all areas |
| Real Estate Strategies, Inc. | Paoli, PA | Elizabeth M. Beckett, CRE | family, elderly, special needs | all areas |
| Real Property Research Group | D.C./Baltimore/ATL | Robert M. Lefenfeld | family, elderly | all areas |
| S. Patz & Associates, Inc. | Potomac Falls, VA | Stu Patz | family, elderly, special needs | all areas |
| Shaw Research & Consulting | Bad Axe, MI | Steven R. Shaw | family, elderly | all areas |
| T. Ronald Brown Research & Analysis | Cary, NC | T. Ronald Brown | family, elderly | all areas |
| ValueTech Realty Services, Inc. | Lutz, FL | Kay Kauchick, MAI | family, elderly, special needs | all areas |
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Gamification: A platform for transitioning from Goods-dominant logic to Service-dominant logic
Case of Nike+ Fuelband
By: Mehdi Poornikoo(116512)
Supervisor: Professor Leif Egil Hem
Master Thesis within the profile of Marketing and Brand Management
NORWEGIAN SCHOOL OF ECONOMICS
This thesis was written as a part of the Master of Science in Economics and Business Administration at NHH. Please note that neither the institution nor the examiners are responsible − through the approval of this thesis − for the theories and methods used, or results and conclusions drawn in this work.
Abstract
This master thesis attempts to investigate gamification strategies used in Nike+ Fuelband and its importance for transitioning from conventional goods dominant logic to a new approach in marketing, service dominant logic.
Based on Nike+ Fuelband exploratory case study, a netnographic approach is conducted for analyzing Nike+ online community. The research studies game mechanics involved in Nike+ Fuelband and consumer's motivation for using gamified offers. Nike employs a range of game elements to its device such as points, challenges, countdowns, rewards and social features. Moreover, based on the literature review in service marketing and S-D logic in particular, this thesis tries to answer the research question which is why gamification can be used as a platform for transitioning from goods dominant logic to service dominant logic. According to the 10 foundational premises of service dominant logic, which are the basis for S-D logic approach, and gamification characteristics, it is revealed that Nike attempts to shift its marketing paradigm from G-D logic into S-D approach. This can be observed through the use of gamified service layer added to the core product and focusing on customer's role as a co-creator of value.
Table of Contents
Acknowledgements
Above all, I would like to express my sincere gratitude to my thesis advisor, Professor Leif Egil Hem for the constant support, for his patience, encouragement, enthusiasm and unsurpassed knowledge. His guidance helped me throughout writing this thesis.
I would also like to appreciate for having such caring and supportive family and friends that have been always besides me.
1. Introduction
1.1. Background
Nike Inc. as a designer and producer of footwear, apparel, equipment and accessories started on September 8, 1969. The company offers variety of products in seven major categories including running, basketball, football, men's training, action sports and Nike sports inspired products.
Nike sells performance equipment products under its name such as bags, sport balls, electronic devices, gloves, socks, golf clubs etc. designed for sports activities.
In May 2006, Nike and Apple revealed Nike+ (Nikeplus) platform, a wireless equipment to connect Nike running shoes and Apple iPod music player. It included a pair of Nike shoes and membership in the iTunes and Nike+ online community (nikeplus.com). The creative idea for combining running and music expands the field for co-creation (Ramaswamy, 2008). Engaging consumers to use Nike+ platform opens the opportunity to foster interactions between runners, between Nike and runners and between Apple and runners. Participants can share their stories, routes and tips on the website. Besides, information provided by the experts about health and fitness makes it trustworthy and valuable for runners to read. On the other hand, the data generated by users regarding their goals, distances, time and feelings can be useful for Nike to grasp new insights on consumer behavior in order to make new products tailored for runners (Ramaswamy, 2008).
Nike launched its gamified application in early 2012 and since then it has become a popular platform for runners. The company stretched itself beyond the limits as a famous brand by assisting their customers to keep themselves fit and changing their lifestyle.
Nike+ Fuelband is the most popular device so far, a wristband with a unique technology that is able to track runners' movements. Runners need to download the Nike+ App and then observe the statistics of their workouts like the amount of calories burned and so on. NikeFuel gamified device tracks and monitor user's everyday movements based on the difficulty chosen by the user. Besides, runners are challenged to achieve a certain amount of Nike Fuel to go onto the next level. For each mission and level, users need to earn Nike Fuel within a specific time. Any device that can collect NikeFuel, including Nike+ Fuelband can be used to process the data. After each achievement, runners can sync the Nike+ device with their gadgets to track their progress and if they have not reached their goals, they can replay the mission.
Nike has converted the simplest sport in the world into a gamified social sport that offers users enormous amount of data about their personal achievements, which enables them to become better at running and thus in a healthier lifestyle.
1.2. Research question
Recently, the concept of service as value co-creation has been proposed by academic literature, which implies that the company and consumers participate in co-creation of the value within a service system (Vergo S., 2008). This line of literature suggests that the value of an offering is achieved in-use rather than exchange. Vargo and Lusch (2004) proposed a service-dominant logic (S-D logic), implying that the company's offering is just a proposition for consumers and need to be realized at the point of use. An offering is just potentially valuable before this point, i.e. in use. A service dominant logic claims that value is described and created by the consumers and not embedded in the products (Stephen L, 2004).
Meanwhile, development in game and service design industry have resulted in increasingly used term "Game mechanics" to drive customers attention and engagement outside the area of what traditionally is seen as, games. While a growing number of games are applied as services to customers, very few academic literatures has been studied to connect the gamification studies with service dominant literature.
Games are co-creation activity involving the game developer and the players. The developer's role happens when game design, visual patterns and story line is created. The player's part of the co-production takes place every time the game is played and interacted with. The main service of the game is to deliver challenging, hedonic and exciting experience for the players (Kim, 2008) or gameful experience (McGonigal J. , 2011). The quality of a game service largely depends on the game or service experience, which referred to as "flow" (Csikszentmihalyi M. , 1990).
Based on the service marketing insight, it is only the player's contribution in the games, i.e. completion of a game service production can merely be achieved by the player's participation. Nonetheless, according to service dominant logic theory, the value of a service is solely considered by consumer's subjective experience, as service providers can only offer the value. It is clear that value of a game service, whether is 'pleasure', 'suspense', 'mastery' or 'gamefulness', is always determined by the player's individual perception i.e. it is possible that the use of a game service results in gameful experiences with one player but does not do so with another player. This difference in outcomes may be because of the differences in skills of the two players (Tuunanen, 2012).
Connecting the findings in game studies to the existing service dominant logic literature could provide a basis to investigate whether gamification can be viewed as a platform for transitioning from classical marketing logic (Goods dominant logic) to service dominant logic and on how a gamified offer can support core service offerings.
This single exploratory case study attempts to identify the relevant motivational factors behind gamified offers and in particular Nike+ Fuelband and answer to this research question:
Why gamification could be used as a platform for transitioning from goods dominant (GD) logic to service dominant (S-D) logic?
Therefore this thesis is carried out based on foundational premises of S-D logic and gamification features used in Nike+ Fuelband. Moreover, intrinsic and extrinsic consumer participation's drivers for using Nike+ Fuelband as well as game elements that constitute a gamfication offering in order to involve consumers as claimed co-producers of the value are in the center of this research.
1.3. Structure
This thesis is arranged into seven main chapters. Chapter one delivers the background of the case study and the objective of this thesis. Chapter two focuses on description of the case and its contribution to the knowledge of S-D logic literature. Chapter three provides the theoretical explanation and outlines the existing literature on service dominant logic, gamification and consumers' motivation. Chapter four illustrates the research design and methodology, explains the case study and argues the overall framework for analysis. Chapter five presents the findings for the case study and analysis the case through crowdsourcing and consumers motivational drivers for gamified offers. Chapter six sketches the discussion and addresses the research question based on the findings from the analysis chapter and literature review. Chapter seven concludes the findings and offers future research suggestions.
2. Description of the case
2.1. NIKE Background
Nike, Inc. an American multinational corporation is one of the world's largest producers of sports shoes and apparel (Sage, 2008) and a major manufacturer of sports equipment, with revenue more than 24.1 billion dollars in its fiscal year 2012. It employs over 44,000 people worldwide and the brand itself is valued at 10.7 billion dollars, making it the most valuable brand among sports businesses (Schwartz, 2012).
The company was founded on January 25, 1964, as Blue Ribbon Sports, by Bill Bowerman and Phil Knight (Nike, Nike Inc., 2010), and officially became Nike Inc. on May 30, 1971. The company takes its name from Nike, the Greek goddess of victory. Nike markets its products under its own brand, as well as Nike Golf, Nike Pro, Nike+, Air Jordan, Nike Skateboarding, and subsidiaries including Hurley International and Converse. In addition to manufacturing sportswear and equipment, the company operates retail stores under the Niketown name. Nike sponsors many high-profile athletes and sports teams around the world, with the highly recognized symbol of "Just Do It" and the Swoosh logo.
Nike produces a wide range of sports gear and its first products were running shoes. At present, Nike makes shoes, jerseys, shorts, cleats, etc. for a varied area of sports, including track and field, baseball, ice hockey, tennis, football, basketball, and cricket (Nike, 2013).
In 2006 Nike and Apple Inc. teamed up to produce the Nike+, a product that tracks runner's performance using a transmitter device in the shoe that connects to the Apple iPod. The iPod software provides different modes: Basic, Time, Distance and Calories. At any time during the workout users can observe information regarding the time elapsed, the distance run so far and the current pace. At the end of a workout, users have the option to sync their iPod with iTunes and send the information to Nikeplus.com. The website offers various visualizations of their performance, the ability to challenge others and a forum for discussing and sharing the ideas (Saponas, Lester, Hartung, & Kohno, 2006).
Nike has also launched an application called Nike+, a GPS App for Apple and Android products that pulls in data from the device's accelerometer and GPS to give runners a real, precise and beneficial tool for getting in shape and staying motivated. The application lets runners to graphically map and track every movement, indoor and outdoor, "free range" or treadmill. The advantage of using this application is that users do not need to have Nike shoes to transmit data to their devices and it works perfectly with GPS system. Nike claims the app even works when GPS signal is unavailable. Mapped paths show a breakdown of the runner's speed at various points during the run as well. Therefore it can track the distance, time and number of calories burned. One remarkable feature of the application is the "Challenge Me" which helps runners challenge themselves to run for greater distances, longer times or quicker paces than their previous runs. Aside from giving challenges, the application also provides motivational messages from professional champions and celebrities and of course the app carries the social sharing settings. Through integration with NikePlus.com, runners can save each run to their online profiles and share the run through social networks such Twitter and Facebook (Mashable, Mashable, 2010).
The most creative product of Nike marketed in early 2012, Nike+ Fuelband, a device that looks like a bracelet and aims to deliver a common information for tracking all physical activities. The product was built on Nike+ that the company launched in 2006. The Fuelband monitors what Nike calls "Nike Fuel". Trevor Edwards, Nike's VP Global Brand said at a press event in New York City that the product, "Allows everyone to measure up and compete with others." The band itself tracks activities via oxygen kinetics and shows whether a runner is doing an intense physical activity or a light training.
Users can sync their FuelBand with Nike+ via bluetooth or USB. That data is then available via a mobile application or desktop software. Nike lets users set daily NikeFuel score goals, and the FuelBand uses red, yellow, or green coloring to let users know how they are doing toward their goal (Mashable, 2012). The device also includes social features, which has certainly helped to increase awareness and demand for the product.
Participants have the opportunity to challenge friends. This provides a great motivation to use this application and in turn, it maintains greater level of momentum in user engagement. The further a runner moves, the more points he or she can get and the community will be aware who is ranked at the top of the leader board. This is a very clever way to make an association between a fit body and Nike's brand.
In addition, Nike gives software developers open access to data gathered from the runners. Nike understands that its users want answers to simple sport related questions they have. Even more simply put, as Nike's Vice President, digital sport Stefan Olander said: "Nike+ thrives on the fact that people want credit for their athletic activity". Therefore, Nike+ platform gives users answers to questions like: How fast am I running and am I progressing? How much calories do I burn while running? When do I lose momentum when I am running? How are my friends performing and what does it take to beat them?
Nike has made an engaging gamified platform where runners can interact with each other, share their data and learn from the insights derived from it. Considering all the data this generates and the insights it provides for Nike, it illustrates a great example of how gamification is a friendly supporter of big data.
2.2. Service dominant logic
Marketing scholars started forming a new school of thought by focusing on services in the late 1970's and early 1980's. The reason was that classical marketing were based on the exchange of physical products, which was unable to deliver satisfactory understanding on services (Grönroos, 2007). This stream of research developed separately from the conventional marketing science until 1990's (Grönroos, 1994) when it started getting attention outside the area of service marketing.
Marketing theory focused on services began to seem useful also for goods and classical marketing. Vergo (2004) for the first time used the term service dominant (S-D) logic in 2004 and proposed that the service approach should substitute the classical marketing theory. Since then, service dominant logic has gained growing attention in academia and also in industry.
The universal applicability of service dominant logic and the difference with traditional goods dominant logic can be explained by two main concepts of the service approach, customer as coproducer and value-in-use. Based on the traditional marketing theory, production is carried out by the firm and value is created in the production process and embedded in the final product. According to this view, product carries the value inside it and then transfers to the consumer with the exchange process. However, in service context, the value-in-exchange approach becomes pointless because there is no physical product that the value could be embedded in (Kai Huotari, 2012).
Value is only generated when consumer uses the service or products. Therefore, service marketing literature considers customers as co-producer of the value, i.e. consumer as a value creator in the production process. The role of company in this value-in-use model is to support customers by offering enough resources for value creation (Vergo S., 2008).
Service dominant logic can be used as an interesting alternative outlook for companies value offering, but the current goods dominant logic of value proposition, particularly for manufacturers of tangible goods, is a belief that is well-established and any interest to make a transition to service dominant logic faces the challenge of looking for methods and empirical research that could help in that transition (Ng, Parry, Smith, & Briscoe, Transitioning from a goods-dominant to a service dominant logic, visualising the value proposition of Rolls-Royce, 2012).
2.3. Gamification
There has been so much hype in the last few years regarding gamification as a trending topic. Gamification is a tool that supports user's engagement and increases positive feedback in service use (Hamari J. , 2013). The major reason for the emergence of this new topic in marketing would be the positive and gameful experience that games hold and also motivational affordance embedded in the service (Huotari & Hamari, Defining gamification: a service marketing perspective, 2012). Gamification is considered as the next generation tool for marketing and consumer's engagement. Gartner (2011) predicted that more than half of the companies that are involved in innovation processes will apply gamification features for their businesses by 2015. In addition, a growing number of successful companies have already dedicated their entire service on attaching a gamified service to the core activity. Code academy is a good example of such companies, a service that uses gamification elements to teach users how to code.
According to Vargo and Lusch (2004) service is defined as "the application of specialized competences (knowledge and skills), through deeds, processes, and performances for the benefit of another entity or the entity itself". So, any action that helps an entity can be categorized as a service. Thus, game design elements can be considered as service and games as service systems (Kai Huotari, 2012).
Nike is a perfect example of a company that turns its marketing approach into service offering. Consumers do not just purchase Nike+ Fuelband but rather the service of running assistance. Nike+ Fuelband enables users to achieve their goals by offering them a gamified service that motivates them to engage more in routine exercises. The co-creation idea embedded in the device is one of the foundational premises for transitioning towards service dominant logic. Thus, the gamified platform has made it easy for consumers' involvement to participate in the process of co-creation.
Undoubtedly, building an appealing and full-fledge gamified platform requires a lot of investments and dedication, but the rewards are massive for companies. With so many users interacting over a long period of time on different platforms while doing something they enjoy, of course is extremely valuable for the brand of Nike. With this approach of big data, Nike can manage to change the behavior of many consumers and in return receive great insights that can be used to improve the upcoming products.
3. Theoretical explanations
3.1. Service dominant (S-D) logic
As opposed to goods dominant logic which developed from the normative work by Smith (1776) and sees the final products as components of exchange (Vargo & Morgan, 2005), the new approach of marketing -service dominant logic- delivers a framework to understand the importance of service and its role.
Kotler (1972) in his famous marketing management book says that "marketing management seeks to determine the settings of the company's marketing decision variables that will maximize the company's objective(s) in the light of the expected behavior of non-controllable demand variables." Based on this definition, it is assumed that competitive advantage could be achieved through utility maximization by adding value in products with the 4Ps manipulations, and considering a passive customer in mind (Lusch, Vargo, & O'Brien, 2007)
Upon foundation of goods dominant logic, the idea that service can enhance competitive advantage was developed. At the beginning, service was considered just a type of product or a mean to increase the value of other products. While there was a great deal of attention to define services as type of products, i.e. intangible goods, there has been a little progress in understanding the concept of "service" as an independent variable and its role as a main concentration of exchange (Fisk, Brown, & Bitner, 1993).
In mid 1930s, American marketing association defined marketing as a set of business activities that direct the goods and services from producer to consumer. According to this definition, marketing's role was taking goods and services "to market". After the Second World War, marketing thoughts shifted to a "market to" orientation that the customer and the market were analyzed and then in order to meet customer's needs, products were produced. Based on this concept of marketing, customer is viewed as an "operand resources", a resource to be acted on. Therefore, according to goods dominant logic, the customer can be segmented, targeted, distributed to and promoted to. Value is also embedded in the product that the producer offers (Webster, 1992).
In contrast to the last two approaches, Service dominant logic perceives the customer as an "operant resource", a resource that can be used to act on other resources and can co-creates value with the firm (Vargo & Lusch, 2004). In other words, it offers a "market with" approach. Figure 1 shows the evolution of marketing concepts.
According to service dominant logic, focusing on the interaction between customer and the company is the key that allows us to have a better understanding of 4Ps. Thus, products are viewed as service carriers; promotion is a mean for conversation and dialog with customers; price is considered as a value proposition created by both sides of exchange and place is replaced with value networks and processes (Vargo & Lusch, 2006). Besides, in contrast to the dominant marketing paradigm (G-D logic) which assumes that legal, competitive, social and physical environments as uncontrollable forces that need be adapted to; service dominant logic views the external environment as potential resources to support the process of co-creation (Lusch, Vargo, & O'Brien, 2007).
3.1.1. Foundational Premises (FPs)
Vargo and Lusch (2004, 2006, 2009) elaborated ten foundational premises that service dominant logic is grounded on. This section reviews these ten premises along with the importance of each.
"FP1: The Application of Specialized Skills and Knowledge Is the Fundamental Unit of Exchange"
Physical and mental skills are two basic operant resources distributed in a population. Since people have different skills than the others, specialization is necessary and efficient way for people and society's survival. This specialization needs to be exchanged (Macneil, 1980). Thus, value is recognized as the relative appreciation of mutual skills and services that people exchange in order to gain utility. Value here means value-in-use.
"FP2: Indirect Exchange Masks the Fundamental Unit of Exchange"
Over the time, the exchange process shifted from one-to-one specialized skills to indirect way of exchange in large and hierarchical organizations with vertical marketing structures. Besides, the exchange manner became monetized. Also, the focus on customers as a direct trading partner mostly vanished, mainly because of the nature of industrial society and growth in vertical marketing, employees stopped interacting with customers (Webster, 1992).
As companies started to grow in size, they began to realize that they had lost the sense of customers (Hauser & Clausing, 1988) and also the reason of having a service provision. Losing customer contacts is not only limited to manufacturing companies. Even companies in service industry, which provide intangibles and have "microspecialists" to interact with customers, are not necessarily more customers oriented.
Therefore, fundamental process of exchange is the same, regardless of the company. It means that people exchange their specialized skills for another skills in a marketing system and thus goods, organizations and monetary transactions are just the exchange vehicles and carriers.
"FP3: Goods Are Distribution Mechanisms for Service Provision"
The main denominator of exchange is not goods but rather the use of specialized knowledge, mental and physical skills. There are different ways to transfer the knowledge and skills. It can be transferred directly by educating (training), or embedding inside the tangible goods. Therefore, tangible products can be considered as knowledge and skills holder (Normann & Ramirez, 1993). Hence, goods are regarded as platforms to help with benefits offering and according to Gutman (1982), goods are the distribution mechanisms for service offering and needs satisfaction.
"FP4: Knowledge Is the Fundamental Source of Competitive Advantage"
As an operant resource, knowledge is the foundation of competitive advantage and the main source of economic growth and wealth. Knowledge is made of "propositional knowledge" which is referred to as techniques (Mokyr, 2002). To acquire competitive advantage, skills and competences (techniques) are necessary. This is in line with the opinion that the change in a company's productivity depends on knowledge or technology (Capon & Glazer, 1987) (Nelson, Peck, & Kalacheck, 1967).
According to Normann and Ramirez (1993), in order to create and gain competitive advantage, firms need to consider the whole value creation network and make it work. Besides, Barabba (1996) claims that marketing based knowledge and decision-making are the tools to gain the core competence. Therefore, mental skills and knowledge application are the main source of performance and competitive advantage.
"FP5: All Economies Are Services Economies"
Economic science and most of economic exchange categories are based on Smith's idea with manufacturing output. Consequently, services have been viewed as anything that does not end up with manufacturing output (Rathmell, 1966).
The exchange of knowledge and skills (operant resources) is the common denominator in different economic classifications. All the activities that used to be performed before have become divided into specialties and exchanged in the market but the role of services in all different economical approaches remains the same i.e. services are not now becoming more important, but becoming more apparent in the economy. Services and operant resources have always been considered as the essence of economic activities.
"FP6: The Customer Is Always a Co-producer"
Based on the traditional goods dominant logic, the producer and the customers are usually considered separated from each other. But in contrast service oriented view of marketing considers consumers as part of the value production. Even with tangible products, production is a middle process not the end. As it has been noted, goods are just carriers of the services and for these services to be delivered, the customer should learn how to use them, maintain and adapt them for his or her special needs. The key to create value is through co-production of the offering (Normann & Ramirez, 1993). Oliver, Rust and Varki (1998) claims that marketing is going toward the "real-time" paradigm which combines mass customization and relationship marketing to satisfy customer needs as a co-producer (Prahalad & Ramaswamy, 2000).
Market has become a place for proactive consumer engagement, in a sense that the customer is an operant resource and co-producer of value rather than operand resource and to be acted on.
"FP7: The Enterprise Can Only Make Value Propositions"
The idea of value being embedded in tangible goods has been in the center of service marketing studies to define the value creation process. Gummesson (1998) argued that value creation only happens when a good or service is consumed and without consumers there is no value.
As for the tangible goods, knowledge and skills are embedded in the products that have potential value for targeted consumers. Therefore, consumer's specific needs can be met only through coproduction and the company's role is only making value proposition that are more appealing than those of competitors.
"FP8: A Service-Centered View Is Customer Oriented and Relational"
The focus of service dominant logic is basically on customers. Therefore, customization, interactivity and co-production are symbols of service-centered view.
In service dominant logic approach, consumers are both at the center and active contributor in the process of exchange. Since a service dominant logic is dynamic and involving, it can be maximized by interactive learning process from both customer's and company's sides. Hence, what happens after the firm engages in a relationship with customers is more important than the exchange itself. So, the service oriented outlook is essentially both relational and customer centric.
"FP9: All social and economic actors are resource integrators"
The service provided by firm, is only input into value-creating activities of the consumer. Before the value can be realized, that input needs to be integrated with other resources, some of which are also attained through the market and some of which are privately or publically provided. Therefore, all individuals and departments act as resource integrators of ideas (Vargo S. L., 2009).
"FP10: Value is always uniquely and phenomenologically determined by the beneficiary"
Measuring and predicting value-in-use as it is co-created by individuals and customers could be very difficult. Value is created where interaction takes place. It cannot be easily predicted or determined in advance as it happens through co-creation (Vargo S. L., 2009).
3.2. Co-creation
One of the main aspects of service dominant logic is the role of customer as co-creator of value. This role is essentially about producing for own usage and consumption, which is referred to as presumption (Toffler, 1980). It is in a sense that the value creation process takes place when customers start using the products and that become their consumption experience. Co-creation includes two components, 1) value in use, which means value can only be generated by consumers through use and 2) co-production, which happens through co-design and shared creativity with consumers and other players in the value network (Xie, Bagozzi, & Troye, 2008).
There are also two main categories within co-production as well. Self-design which requires consumer's involvement in the design process and self-production which enables the customers to interact with the product and have impact on the result and outcome (Troye & Supphellen, 2012).
3.3. Gamification
The term "gamification" was first used in 2008 and became prevalent in 2010 (Deterding, Dixon, Khaled, & Nacke, 2011).
As a new term and topic, there are only few definitions of the term "gamification" but perhaps the most dominant one is, using game elements in non-game environments to shape the user's behavior (Zichermann & Cunningham, 2011). Gamification thus apply game design elements to solve organizational problems though user engagement. The user can be a stakeholder from an organization or a consumer of the product.
Huotari and Hamari (2012) define the term "gamification" as a process of supporting service with the use of gameful experience for backing up consumer's value creation. This definition is consistent with the notion of service dominant logic and consumer as co-creator of value.
According to Gartner, the aim of gamification is: "achieving higher level of engagement, changing behaviors, and stimulate innovation".
Since gamification originates from games, it is important to define game elements. They include: 1) Goal, which is the outcome of the game that a player needs to achieve. 2) Rules are game's limitations that require player's creativity to play within a framework. 3) Feedback system is a way of letting the player knows how close he or she is to achieve the goal. It also motivates the player to keep playing. 4) Voluntarily participation implies that everybody knows and accepts the rules, goal and feedback and has the freedom to choose an enjoyable experience (McGonigal J. , 2011).
Gamification has become a modern business practice that applies game design elements to influence, measure and reward user's behaviors. Gamification is a secondary phenomenon based on a game as its origin (Volkova, 2013).
According to LeBlanc, Hunickle and Zubek (2004), every good game has three major components, 1) Game Mechanics, which consists of rules, constraints and procedures reinforced by technology to manage performance of the player through incentives, rewards and feedback. Game mechanics is supposed to turn the usage intentions and motivations for adding value to the service (Huotari & Hamari, 2012). 2) Game Dynamics, which is player's interaction with the game mechanics. It is considered as behavioral communication of the game and the player. Bunchball (2010) argues that game dynamics originate from motivational nature of the player's experience, which comes from human desire. 3) Aesthetics, which is a set of principles concerned with the artistic and beauty of the games.
Based on Fogg's (2009) behavior model, which is shown in figure 2, three elements of motivation, ability and trigger must converge at the same moment for a behavior to occur.
1) Motivation: the person desperately wants to carry out the behavior, i.e. highly motivated.
2) Ability: the person considers the behavior very easy.
3) Trigger: the person is triggered to do the behavior.
Wu (2011) applied Fogg behavior model to analyze how gamification can change the behavior of the users. "Game mechanics and game dynamics are able to positively influence human behavior because they are designed to drive the players above activation threshold and then trigger them into specific actions. In other words, successful gamification is all about making these three factors occur at the same time".
Gamification differs from games in a few key ways: 1) Gamification attempts to create experience similar to games, developing a sense of flow and feelings of mastery and independence rather than delivering direct hedonic experiences. 2) Gamification tries to affect motivation rather than behavior and attitude. 3) Gamification refers to adding gamefulness experience to existing systems rather than building an entirely new game as it is performed with "serious games" (Hamari & Koivisto, 2013).
Although the benefits of applying gamification are tremendous but there are criticisms regarding the concept. Game mechanics such as levels, badges, and points make consumer's engagement just for a short period of time and as games become easier, they lose their challenge and excitement (Hamari & Lehdonvirta, 2010). Also, consumers pursuing to get more rewards, will not remain loyal when the game ends (Zichermann & Cunningham, 2011). The long-term negative influence of gamification is not completely clear for companies. Research shows that, external rewards end up with decrease in user's intrinsic motivation (Deci, Koestner, & Ryan, 2001). Therefore, if gamification is only used as a tool for extrinsic motivation, stopping it could result in less chance of participants to come back without extrinsic stimuli. Moreover, gamification as a marketing tool, has always had the risk of falsely motivating customers and involving them just for gaining more game mechanics like rewards, badges which might make the content of gamification less important (Boulet, 2012).
3.3.1. Gamification and Motivational theory
Motivational theory is the crucial part of gamification to understand how this phenomenon works and what could be the possible incentives for participating in gamified services.
Gamification involves consumers with both intrinsic and extrinsic incentives (Muntean, 2011).
Fang and Zhao (2010) identified the main gamification factors. They concluded that competing with others, level of challenge, distractions from stress, responsibility and unreal environment of the games for doing extraordinary tasks are the major gamified characteristics.
Games offer voluntary complications and obstacles, and let players apply their power and mental capabilities to handle the problems that cannot be handled in real life. Doing different kind of work, creative and discovery tasks with high level of involvement make the player gain "hard fun", which happens when user feels positive stress. Besides, the optimistic sense of capabilities that players get during the game makes it addictive (McGonigal J. , 2011).
According to McGonigal (2011), players in gameful experiences hold four different behavioral characteristics. 1) Urgent optimism, which is the belief to reach the goal, success and changing the world. 2) Social fabric, which concerns with making social connections and association through the game. 3) Blissful productivity, which implies that people show the maximum productivity when they are busy and dedicated to an important task. 4) Epic meaning which is the need to influence on the game and the story that players are interacting with.
Perhaps one of the best theories describing why people play games is the theory of "flow" introduced by psychology professor Mihaly Csikszentmihalyi (1991) that is widely accepted. According to Csikszentmihalyi (1991), there is an optimum point in intrinsic motivation, which causes particular happiness that is assumed to be the essential reason for playing game. Flow is categorized by the degree of involvement, intensity of concentration, loss of self-awareness, feeling of being perfectly challenged and loss of time (Csikszentmihalyi M. , 1991). This state of mind requires person to be intrinsically motivated and also possible for performing any task (Csikszentmihalyi M. , 1988).
There are seven fundamental components of flow that are summarized in table 1. These components can be broken into two groups: conditions and characteristics. Conditions must be attained before flow can be reached. Characteristics occur while a person is in flow, even if they are unaware of it (Csikszentmihalyi, Abuhamdeh, & Nakamura, 2005).
Table 1-‐Flow Condition and Characteristics, Csikszentmihalyi (1991)
In order to achieve the flow, the right conditions must be fulfilled specially the last condition, balanced goal. A goal that is challenging yet achievable within the individual's ability. A task that is not challenging or requires extra time to complete becomes boring and results in loss of interest for the player; a hard task on the other hand causes anxiety and frustration and makes the player tired. As a user's skills improve over time, the challenge needs to increase accordingly. This balance is called the flow channel as it is depicted in the figure 3.
Zichermann and Cunningham (2011) introduced the SAPS model for extrinsic motivations including Status, Access to new content, Power and Stuff such as gifts that accords with game dynamics. Extrinsic rewards are normally connected with game mechanics as points, badges, and leader boards. Extrinsic motivations are considered to have a short-time effect on consumers, which decrease the long time span of interest in the subject (Vockell, 2004). Gamification is assumed to offer a viable value and more importantly work as a supporting system for the primary value drivers (Wu M. , 2013).
Gamification can be used as a great tool to achieve benefits that are difficult to reach with the use of current marketing tools in engaging, re-engaging, motivating and creating loyalty (Deterding, Dixon, Khaled, & Nacke, 2011) (Zichermann & Cunningham, 2011).
The immense success of gamification can be seen in Foursquare and Frequent Flyer Program (FFP), the most well known services that applied gamification (Zichermann & Linder, 2013). Both Foursquare and FFP's have gamification at their core and this has created a service that offers customers experiences that motivate them to use these services frequently and with intensity. Applicability and fun making techniques are at the center of gamification that can be tailored to suit business objectives (Zichermann & Linder, 2010).
3.4. Virtual Communities and Crowdsourcing
Crowdsourcing has become one the most successful trends nowadays and works as a virtual distributed problem solving framework (Brabham, 2008).
High level of collaboration and interaction in between company and consumer increase the competitive advantage (Prahalad & Ramaswamy, 2004) and create a source of value creation (Zwass, 2010). Value co-creation is dependent on participants in online communities and relies on knowledge of the crowd that built up crowdsourcing concept (Surowiecki, 2005).
Customer participation in virtual communities has a great impact on development of organization through conversion of free-time online activities into useful source of information for the benefit of company, which only occurs by social interactions of collective consumers and could not be reached by a single person (Kozinets, Hemetsberger, & Schau, 2008).
Crowdsourcing has a wide area of applications that allow empowering social interactions, increasing creativity, and controlling human activities (Gowdy, Hilderband, Plana, & Campos, 2009). Perhaps the most important benefit of crowdsourcing is to reach a big pool of creative ideas to solve problems and extract a great deal of external knowledge (Howe, 2006). Crowdsourcing is managed and supported by the company, which generates contents, creates inducements for participating and gives rewards (Brabham, 2008) (Howe J. , 2009).
Crowdsourcing is also considered as a type of brand community that enables the firm and virtual participants in community to make a strong bond with each other (Chafkin, 2012). All sort of virtual communities share certain features concerning how they work and their impact on their members. They are all categorized as netnographically communities that have specific rituals, traditions, focused on a certain good or service (Muniz & O'Guinn, 2001). Virtual communities are built based on distinct interest, which provides the reason for existence (Bagozzi & Dholakia, 2002). Besides, the members of these communities create a bond with the other members and try to distinguish themselves from non-community members (Wellman & Gulia, 1999). Also, user interaction in online communities develops jargons and makes boundaries and commitment to community's goal (Bagozzi & Dholakia, 2002). Participation of active members is the basis for establishment and continuance of online communities (Arnould, Price, & Malshe, 2006).
Therefore, virtual communities can bring individual's interests and hobbies together with the need for socially belonging and identification (Kozinets, Hemetsberger, & Schau, 2008).
Crowdsourcing shares all these characteristics with virtual online communities but the difference is that these communities are managed and controlled by the company which profit from them (Brabham D. C., 2012).
The reason for participating in online community and involve in crowdsourcing activities has been in the center of scholars research. The social exchange theory seems to be the best suited theory which implies that consumers get involved in online communities due to the reward expectations (Emerson, 1981) (Füller, 2010). "Self-determination" theory argues that participation and spending time on virtual co-creation can be explained by two forms of intrinsic and extrinsic motivation reflected by consumers (Guay, Vallerand, & Blanchard, 2000). Extrinsic motivations are performed as means to achieve participant's objectives and are in favor of goal-oriented behaviors (Wong-On-Wing, Lan, & Lui, 2010). These behaviors are categorized by situational engagement, selective or intentional involvement, interest in content and utilitarian advantages (Hoffman & Novak, 2009). On the other hand, intrinsic motivations are carried out for the sake of experimental oriented behaviors (Gagné & Deci, 2005). They are considered as determined contribution to the virtual community, indirect engagement, amusement, enthusiast in content involvement, hedonic benefits and entertaining activity (Füller, 2010).
Rewards and extrinsic motivation are usually mixed up in the literature. Rewards are used as goals or objectives to strengthen the behavior whereas extrinsic motivation encourages an individual for an action (Porter, 1970). Although, in virtual communities, extrinsic motivation can be shown as monetary incentives or reputation; the dominant stimuli are assumed to be intrinsic motivations (Dahlander & Magnusson, 2005).
Füller (2010) identified ten reasons describing why people engage in online co-creation activities. They include playful tasks, community support, friends making, curiosity, selfefficiency, looking for information, developing skills, compensation monetary reward, recognition, personal need displeasure.
A handful of studies have been carried out on variety of online communities, from Star Trek to open source portals (Brabham, 2008) (Lakhani & Panetta, 2007). According to Brabham (2008), intention to make money, enrich creative skills and networking stand above the other motivations for participating in virtual communities. Füller (2010) found out that the consumer's reasons for contributing in online communities are usually heterogeneous and a mixture of intrinsic and extrinsic drivers that motivate users to get engaged in content creation activities. Some members might be chiefly motivated by community affiliation or skill enhancement while others get motivated due to ideological reasons. Moreover, user's motivation can change from extrinsic to intrinsic over time (Shah, 2006).
4. Methodology
This chapter elaborates on the selected method for analysis and the research design of this thesis. Netnography technique is selected as the methodology for analyzing the case. This section starts with describing the choice of methodology and the rationale behind it. Then it explains the aspects of netnographic research design and finally the steps to carry out the research based on netnography's five phases design which includes: planning and entrée, data collection, data analysis and interpretation, research ethics and member checks (Kozinets R. V., 2002).
Netnography offers many benefits for conducting a case study compared with other methods of gathering data such as experiment, interviews, observation or surveys. It consumes less time and cost in contrast to traditional data collection and interviews.
4.1. Research Method choice
Case study provides rich and profound evidence that can be used for discovery of theory. Qualitative case study methodology assists researchers to investigate complex phenomena within their contexts. Yin (2003) suggests that a case study design should be used when: (i) the focus of the research is to answer "how" and "why" questions; (ii) researcher cannot manipulate the behavior of those involved in the case; (iii) researcher prefers to shield contextual environments because they are pertinent to the case study.
The research question of this study starts with "why" so conducting a case study is a proper way for this research. Besides, the topic of this research needs an exploratory approach. Robson (2002), suggests that an exploratory study is a useful tool for finding "what is happening", "to seek new insight" and "to assess phenomena in a new light". Since this thesis needs to clarify the understanding of a problem and investigate a new phenomenon, exploratory study is conducted. Robson (2002) describes case study as a strategy of conducting a research that contains an empirical investigation of a specific contemporary phenomenon, which occurs in real life context. Moreover, according to Yin (2009), there are two goals in studying a case. 1) The researcher has no control of the events and 2) The focus is on contemporary experience in a real life. These reasons fit perfectly to this research. So a case study is an appropriate way to conduct
this research.
The aim of this research is to gain insights on how gamification can be used as a platform for transitioning from goods dominant logic to service dominant logic with a strong emphasis on Nike consumer's co-creation activities in virtual communities. In this thesis, qualitative research method is preferred instead of quantitative method. The reasoning for this selection is the exploratory nature of the research question that requires qualitative method for data collection. Besides, understanding consumer's motivation is by nature an abstract concept and necessitates profound information (Corbetta, 2003). Also in order to clarify the motivation for taking part in virtual communities, it is vital to access rich and deep data (Silverman, 2000).
Every case study can be categorized based on two discrete dimensions: single case versus multiple case, and holistic case versus embedded case. A single case is often used because it provides an opportunity to observe and analyze a phenomenon that few have considered before. Undoubtedly, a crucial reason for using a single case is defining the actual case (Yin R. , 2003). On the other hand, the rationale for using multiple cases is to observe whether the findings in one case happen in another i.e. the need for generalizing. The second dimension refers to the unit of analysis. If the research concerns only with one organization as a whole, then the research is a holistic case study. Embedded case study occurs when one wishes to examine a number of subunits within an organization, such as departments or work groups (Yin R. , 2003).
Moreover, generalizations from cases are analytical and based on reasoning. There are three principles for reasoning: deductive, inductive and abductive. When generalization is based on deductive approach, a hypothesis is expressed and testable consequences are resulted by deduction. Then the findings, which derived from theory and the case, are compared with empirical findings to accept or reject the hypothesis. The second type of generalization is reached through induction. This can be achieved through conceptualization, which is based on data gathered from the case. The inductive theory generation results in developing a set of related concepts. The third mode of generalization is called abduction; a combination of deductive and inductive approach. Abduction is the process of encountering an unforeseen fact, employing some rules and as a result hypothesizing a case that maybe valid (Baxter & Jack, 2008).
This study is then conducted as an abductive, exploratory, holistic, single case study approach to understand consumer's behavior towards gamified Nike+ platform in virtual community and using Nethnography techniques introduced by Kozinets (2002) as a method for analysis of crowdsourced primary data. The data is collected through Nike+ online community that provides rich and practical information. The study of Nike virtual community allows the researcher to gain a profound insight into the way that Nike manages consumer's needs and let the customers take part as co-producers of the value through the use of Nike+ gamified Fuelband and sharing their achievements.
4.1.1. Data Collection
Case study is well known for using several data resources, a strategy that enables data credibility (Yin R. , 2003). Resources for collecting data include: documentation, interviews, direct observation, participant observation and etc. Within case study approach, researcher can collect and integrate quantitative data as well, which helps to reach an overall understanding of the phenomenon. Therefore data can be collected from different sources and then converged in analysis process. This merging of data adds strength to the findings as the different components of data are integrated together to support a better understanding of the case (Baxter & Jack, 2008).
Nike+ online community is the main source of data collection for this research, simply because Nike represents as an outstanding case of a firm that applies gamification and engage consumers through Nike+ community and crowdsourcing. The creative online community delivers the opportunity to observe, unravel and analyze the customer's co-creation activities along with Nike's contribution for getting the users more engaged in value creation chain. By using Netnography techniques for analyzing Nike+ community and also highlighting the game dynamics and game mechanics embedded in the gamified Nike+ Fuelband, this study tends to explore the innovative use of gamification by Nike to engage customers in the process of cocreation and leverage this tool for transitioning from goods dominant logic to service dominant logic.
4.2. Netnography
Understanding customers has always been in the center of market research. Up until 15 years ago the major way to reach customers was contacting them physically. Nowadays, getting insights from consumer's activities in virtual world has become easy and accessible for a better understanding of them. Consumers tend to get involved in online conversations that are relevant to the companies (Firat & Dholakia, 2006). Just because consumers' activities happen in an online space does not mean they are less real, but rather they are part of participants' real life activities and have different effects on various aspect of their behavior (Kozinets R. V., 1998).
The amounts of data and traces consumers remain on online platforms are limitless. These data could be exceptionally beneficial for marketing researchers and managers.
Qualitative methods using ethnographic approach have been always valuable in consumer's research and behaviors and Internet has generated a new and unique source of information for market researchers and marketing practitioners (Kane, Fichman, Gallaugher, & Glaser, 2009). The need for consumer's qualitative research in virtual space led to the rise of Nethnography as "a new qualitative research methodology that adapts ethnographic research techniques to study the cultures and communities that are emerging through computer mediated communications" (Kozinets R. V., 2002). Although, the application of Netnography as well as academic literature is growing (Bilgram, Bart, & Biel, 2011) (Kozinets R. V., 2002), the potential of this approach has not yet fully-exploited (Xun & Raynolds, 2010).
Netnography developed in line with ethnography approach for studying online behavior of consumers in virtual communities. Ethnography is a method of research that the researcher perceives and involves in day-to-day activities of people form different cultures and make conclusions on specified explanatory experience from that culture (Fisher & Marcus, 1986). Based on the researcher's needs, these ethnographic methods can be modified and altered (Kozinets R. V., 2002).
Netnography emerged as a research tool due to the development in social media and internetbased media platforms. The rise of communication technologies has made it easy for both firms and customers to voice their ideas. Consumers exchange information, share opinions and even re-define what products mean to them (Cova & Cova, 2001). Nowadays that the social media are on the growth, the borders between virtual and real have become vague i.e. virtual is becoming a part of the real (Jones, 1995).
Kozinets coined the term netnography in 1995 and delivered several examples of how ethnography can be used on online world. Netnography has started gaining acceptance among market researchers since late 90s and been used in variety of studies (Cova & Pace, 2006) (Muniz & Schau, 2005) (Nelson & Otnes, 2005).
The qualitative and interpretive nature of netnography has made it a perfect research method to study online social context (Bartl, 2009). Moreover, netnographic approach made it possible to observe customer's motivation without having a physical contact or interactions with them. However, there is not a shared agreement among the scholars on netnographic approach. They basically hold two different views on this matter. Some believe that netnographic researchers have no interaction with virtual community and thus use only comments and words by the community members (Neyer, Bullinger, & Moeslein, 2009) and some others claim that because of the netnographic features, the researcher actually lives inside the virtual community and hence can attain the similar advantage as the ethnographic researcher in an online environment (Puri, 2007).
Kozinets (2002) advocates that netnography is chiefly grounded on contextual conversation, in a sense that it primarily encompasses "non-participant" observation of virtual community. Nevertheless, this does not imply that netnography's boundaries are limited to "nonparticipatory" observation. Netnography offers a great tool to gain understandings from online consumers and enables the researcher to grasp what customers think by extracting meaningful information from virtual contexts.
According to Kozinets (2002), netnography gives an opportunity to the researchers to investigate virtual communities without interfering and raiding customer's privacy and in a naturally happening behavior.
To understand what Nike+ Fuelband means to the consumers, this research applies netnographic approach to study consumer's behavior in Nike+ online community. This helps the researcher to get a deeper understanding of how consumers feel about Nike+ Fuelband and how motivated they are in participating to the online community. This also allows the researcher to analyze available online information that is in forms of discussions, posts and blogs.
Before emergence of netnography, study of consumer's incentives for contributing in online activities was mainly through interviews and questionnaires (Braham, 2008) (Cova & Pace, 2006) (Muniz & Schau, 2005). The problem with these methods was that the respondent's answers might have been partially biased because of unaware motivations during the interview or respondent's perceptions of the right answers to be delivered to the interviewer (Prisacaru, 2012). Netnography has gained great deal of popularity since its introduction and many researchers have applied it for variety of purposes. Researches employing netnography range from different areas, from exploring the effect of post-modernism on consumers (Prisacaru, 2012) to inviting and absorbing information technology (IT) specialists (Belfo & Sousa, 2011), to study consumer's discouragement (Braunsberger & Buckler, 2011).
Nevertheless for every research tool, there are some challenges to be considered and netnography is not an exception. To begin with, the amount of data available in online communities is massive and quite reachable by almost everyone connected to the Internet. This huge amount of data can baffle the researcher, because making concrete information out of raw data is very difficult. Besides, interpretation of this data is quite subjective, and is dependent on researcher's knowledge and skills. This might result in different interpretations from the same data (Pursiainen, 2010). Moreover, netnography is limited to the nature of virtual communication context, meaning that it lacks human interactions like body language and gestures and this could be considered another challenge for predicting and generalizing online users' behavior (Kozinets 2002).
4.3. Netnography Research guidelines
Kozinets (2009) defines five stages in netnography that can be used to understand consumer's behavior in online communities. These guidelines include: planning and entrée, data collection, data analysis and interpretation, research ethics and member checks. Each and every one of the steps is elaborated in the following:
4.3.1. Planning and Entrée
During this step, the research question is defined and the online community is chosen. This means that the objectives of the research need to be shaped in a well-structured research questions that are clearly well written and also the data provider i.e. online communities for the purpose of this research need to be selected, whether it is a website, forums or blogs. The virtual communities provide the basis for empirical research, which allows the researcher to explore and back up his arguments regarding online participation in crowdsourced communities (Yin R. K., 2009). The selected online community for this research is Nike+ community that provides data needed for this research. This platform is a place for all the runners using Nike+ Fuelband and application to share their achievements and discuss their challenges. User's posts on Nike+ community are the main source of exploring consumers' motivation and involvement.
The reason for choosing Nike+ community is based on the criteria proposed by Kozinets (2002) for a proper online community to conduct a netnography research. He proposes that selected online community needs to have: 1) relevant data for the research questions 2) high rate of user's posting 3) great number of participants 4) appropriate data and 5) high level of users interactions. Nike+ community meets these five requirements and is a perfect platform to perform a case study.
Furthermore, for prior understanding of an online community's characteristics, which is recommended by Kozinets (2002), the researcher invested sufficient amount of time within the community before the next step (Data collection) in order to grasp the norms and values between the participants.
4.3.2. Data Collection
To collect qualitative data from Nike+ community, relevant quotes and comments are extracted in order to understand the purpose and feelings behind the messages. Kozinets (2002) suggests that to gather qualitative data, we copy texts directly from consumer's participation and then use the interpretation skills to analyze them.
Data collection requires to be guided by the research question and other accessible resources, like time and skill level (Kozinets, 2002). The strength of netnographic approach is recognized by closeness to different online consumer groups and depth of communications (Kozinets, 2002). Thus, in this study, sufficient number of user's posts is selected for analysis and interpretation. Kozinets (2010) categorizes research activities within a community into three levels. 1) Observational netnography, a method in which the researcher does not disclose his identity. 2) Participant-observational netnography that the researcher reveals his identity and participates both online and offline in the community. 3) Auto netnography, which the researcher actively contributes to the community. Observational netnography is used in this research as only notes and quotes are taken from the community members.
4.3.3. Data Analysis and Interpretation
To analyze the data, Kozinets (2002) emphasizes on reliability more than validity of data and concerns that reliability might be a challenging task due to written and textual form of the data. This stage of data analyzing goes hand in hand with the data collection since the process of analyzing and collecting data happen simultaneously.
Content analysis and member's posts classification based on the literature review is used to analyze the data. It means that the literature works as an instruction for analyzing the data. Besides, following the Kozinets's (2010) netnographic approach, a set of analysis steps is used for data interpretation, namely coding, noting, abstracting, comparing, checking, refinement, generalizing and theorizing. Therefore, an abductive analysis of qualitative data is employed for purpose of this thesis. In this way, both inductive and deductive approach can be used for data interpretation.
In practice, the data is extracted in form of quotes form Nike+ online community and analyzed based on netnography approach and the literature review in order to find consumer's motivation and also gamification elements that have been used in the Nike+ Fuelband. Besides, user's posts are categorized in accordance to the major topics for facilitating the process of interpretation.
According to Dholakia and Zhang (2004) there is always the issue of member's identity in virtual netnography data analysis and interpretation that needs to be considered. In a sense that researcher cannot be fully confident that users in online community are the ones who declare to be. This problem can be tackled by the amount of "Nike Fuel" the users have in the community and their contribution to the group.
4.3.4. Research Ethics
Two major ethical issues have been taken into account in this research. One issue is the decision on being anonymous or revealing the researcher's identity and another ethical concern is the verdict on letting Nike+ community members know about using their quotes and comments for the purpose of this study. Langer and Beckman (2005) suggest that virtual community members should not be notified about the research or the researcher but on the other hand Haggerty (2004) proposes that researchers reveal their identity in virtual forums or communities.
Since there is no clear agreement in the literature regarding this ethical dilemma, the researcher decided to remain anonymous and keep his identity form the other members. Chiefly because all the data are available to the public and anyone with Internet can access to the posts and comments. Moreover, no confidentiality rules for using to this data have been found by the researcher. Also due to reviewing a great number of posts and comments by community members as well as availability of this thesis after its submission, the researcher decided not to notify the members for using their posts and comments.
4.3.5. Member Checks
Member checks are means of consulting with community members by offering them the summary of the research (Kozinets R. V., 2010). At the moment this research has not been completed for member checks. But the summary of this thesis will be available through Nike+ community after its completion and approval.
5. Analysis of the case
This chapter analyzes the case in two main parts. The first part focuses on analyzing Nike+ Fuelband gamification strategy based on the device performance and the consumer's insights from Nike+ online community. The analysis is carried out through the exploration of game mechanics used in Nike+ Fuelband as well as Nike+ virtual community. The second part investigates service dominant logic aspects of Nike+ gamified platform by analyzing foundational premises of S-D logic used in Nike+ fuelband.
5.1. Nike+ Gamification Strategy
5.1.1. Nike+ Fuelband Design and performance
Setting up Fuelband is very straightforward. After creating a Nike account, entering personal information such as height, weight and age and charging up the wristband, the device is all set to use. The Fuelband uses its accelerometer for measuring the activities and converts them into "Fuel" points. This metric creates a common denominator between all types of sportspersons. Just by pressing the only button on the device, it shows all the relevant data including amount of Fuel points one has earned as well as the daily goal percentage illustrated by LED lights from red to green.
The simple usability combined with proper functionality of the device makes it absolutely easy for everyone to measure up every step. Even in the promotional video of the device there is a line that goes, "You can't improve what you can't measure". Nike+ Fuelband not only gives the users data for their movements, but also helps them to tell stories about the data. Nike has created an amazing online experience that shows the story of data over time.
5.1.2. Nike+ Game mechanics
Nike+ Fuelband uses typical game mechanics that applies in non-game environment, which makes it a great example of a company that exploits gamification benefits to the extent.
Points mechanism is used in Nike+ Fuelband to measure individual's activities. The device uses "Fuels" as points mechanism that users can earn to evaluate themselves with others. Consumers can also set daily goals based on Nike Fuels and try to achieve the points. In addition to the usual steps, calories and Fuel that the wristband measures daily, it allows users to track individual "sessions" and compare the results. The advantage of setting "sessions" is that it gives the chance to the users to choose their specific type of sports and thus receive more accurate metrics.
Moreover, countdown mechanism is translated into "Win the Hour" feature in the device that attempts to push the users by showing a friendly reminder in the form of "Go [Your Name] Go!" every hour. Winning hours does not earn the user bonus points, but rather encouraging the user to improve their physical stamina over time.
As for the rewards, Nike+ Fuelband illustrates banners like "Best Day" and "Longest Streak", plus trophies for beating levels like 10,000 Fuel points. After passing certain benchmark, a little symbol performs a dance and pulls down a banner in the user's honor. In order to unlock awards, trophies and surprises, user needs to move and earn more Nike Fuel. The LED lights on the device show the user's current status and pushing the users until it gets to the green zone. Cellphone application and the web site also offer more of the same information but with greater details.
Another interesting feature of Nike+ Fuelband is "Groups", which can be created among groups of friends and acquaintances, especially when sharing across wider social range is not desirable. This feature allows users to receive motivations as well as challenges by their friends. This is part of the social layer added to the device, which creates a richer experience for the users. Consumers are encouraged to connect to Facebook and post their achievements and get supportive comments from their friends. Also Nike has provided a community that Nike+ fuelband consumers get together and share their goals and achievements and receive direct support from Nike. Consumer's participation in this online community is analyzed in the next part for a better understanding of Nike+ Fuelband customers.
5.1.3. Nike+ Community structure, consumers perspective
Nike community forum offers a place for athletes who share a common goal. The community allows users to connect and help each other to reach their goals. Like other social networks, there are multiple ways for users to interact within Nike community. Posts, comments, likes, shares and flags are the typical forms of interactions.
In this part of analysis, the consumer's motivations in Nike online community are evaluated. User's posts and comments are explored with regards to Fuller's (2010) model and gamification motivational factors. Besides, game dynamics, which represent behavioral patterns in reply to game mechanics, are investigated.
22.214.171.124. Consumer interactions
Nike online community is categorized by different topics such as achievements, motivation and training. The words "Goal" "Fun" and "Motivation" appear more often in the quotes than the others. Hence, Nike users really think that Nike+ Fuelband is fun way to exercise and the device motivates them to reach their goals. This is in line with Fuller's (2010) notion of playful task, which is a tool for intrinsically motivating people. Here are some quotes by the users:
"I love the Fuelband for motivation. I set a goal and know that I have to push myself to achieve it. It is accurate and keeps me from sitting too much during the day. I especially like the hourly reminders to get up and move more!" (Karen, 2014)
"That was fun but not as fun as running. Hope my calves will be fine soon!" (Oliver, 2014)
"I run for so many reasons...but the biggest reason I run is cause it makes me happy." (Lauren, 2014)
"I'm almost to 5 million Nike Fuel. I have a goal to get there in one month! Who else wants to join me?" (Karen, Nikeplus Community, 2014)
"Nobody said it is going to be easy, but it will be so worth it!" (Jason, 2014)
Requesting for relevant information and asking for new friends to start a challenge are another frequently posted quotes by users. According to Fuller (2010), exploration and curiosity seeking can be considered in the form of inspiration seeking. Posts highlighting inspiration seeking can easily be found in Nike+ forum.
"Hi guys, just got it today! Please add me. Let's help each other keep moving" (Catalina, 2014)
"Considering getting a fuel band, but just kind of curious about the accuracy of it and what everyone thinks about it overall. I'm currently just using the Nike Watch for runs, but would like to try a fuel band for my daily usage." (Demetrius, 2014)
Furthermore, Nike+ community leader board actively participates in the discussions by answering to the questions and giving inspirational quotes. For instance, in response to Catalina from the previous quote, Nikefuel commented:
"Welcome to the team, Catalina. What's on the action agenda for day one?"
Or it motivates participants by sharing inspirational and challenging quotes:
"Today's Challenge: Torch your goal by 150%. Then tell us how you got there." (Nikefuel, 2014)
Co-creation aspect of gamified Nike+ Fuelband is visible throughout the community by user's challenges and goals setting combined with posting their achievements. Socially motivated activities of the community members have a positive impact on co-creation result. This can be viewed by supportive comments of fellow members in Nike+ community.
"I had my best month and best week's in April. Excited to see what I can accomplish in May! How are you all doing?" (Karen, 2014)
"The Fuel Band is the best fitness monitor I can find, and I trust its accuracy after 10 months of use. The software is wonky and recently cost me a 73-day streak because data didn't download correctly. But I work hard to see the numbers I'm putting up every day and I enjoy studying the data. My life changed dramatically and for the better when I put the Band on though. Like Michael P., I'm addicted to making the numbers and steps soar, and the calories drop. Dropped 40 pounds and am working toward dropping 10-15 more and then maintaining. I can't see accomplishing that goal without my Fuel Band. Solid motivation, delivered every day!" (Arthur, 2014)
While the purpose of the community is to keep the users socially engaged, members are free to take part on each other's posts. Friends making and building relationships are aspects of consumer involvement in crowdsourced virtual communities (Fuller, 2010). Users tend to interact with like-minded people and share a sense of belonging to the community. Social factors of the Nike+ community are fortified by the opportunity of sharing challenges and invite more audiences for the upcoming contests:
"I've just got a nike fuel band. Looking for new friend and groups. Plz add me" (Saori, 2014)
"Looking for competition! Can you beat me?" (Dan, 2014)
"Been using my fuel band for a few months, love it! need some friends for a challenge though!" (Channelle, 2014)
And then again users frequently receive supports from the community leader. For example in reply to Channelle, Nikefuel adds:
"We're here to help keep you motivated Channelle. What are you doing today to move more than yesterday?" (Nikefuel, 2014)
Problem solving and product dissatisfaction can also cause contribution in virtual communities (Fuller, 2010). Some displeased customers in the community voice their concerns with the product and some others with products difficulties look for relevant answers to their questions.
"Is anyone else having issues with the fuel not syncing properly. It registers correctly on my iPhone but not on my nikeplus dashboard. I have a streak of 16 days on my iphone but only 8 on the dashboard because it says I didn't reach my goal on one of the days. Is there anyway to get this synced properly?" (Brandon, 2014)
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"How do I unlock the Living Legend trophy?" (Otto, 2014)
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"I dislike that fuel band only cares about arm movement. I killed leg day (lifting) today and got basically nothing. Even if I log a workout and label it weight lifting it doesn't adequately reflect the work I put in. But other than I am happy with the fuelband." (Josh, 2014)
And of course they receive helps and self-experience from the fellow community members;
"Weights, yoga and bicycling are my main training outlets, and sessions or not, the Fuel Band ain't our friend in these fitness pursuits. I found my way around it, though and adapted. I walk, run and walk and run. The added cardio is great, and the points pile up. So I started doing combo workouts. Hell, I even started dancing, music or not. We can adapt to the Fuel Band and be winners!" (Arthur, 2014)
5.2. Gamification and S-D logic
In contrast to Goods dominant logic, service dominant logic provides a framework for the concept of service and its role in competition and exchange. Thus this section aims to connect the findings of gamification mechanism used in Nike+ Fuelband with foundational premises of service dominant logic, which relies upon ten foundational premises of S-D logic (Vargo et al., 2004).
According to the first foundational premise (FP1), the primary unit of exchange is particular skills and knowledge. As it is obvious for Nike+ fuelband, users look for the data regarding their physical activities and in fact they purchase a knowledge generator device rather than a fancy wristband. Consumers then use this data to get informed about their physical performance. The gamification aspect of the device helps customers and the firm in the process of exchanging the knowledge and skills. In contrast to goods dominant logic of marketing which proposes manipulation of 4p's related with mostly tangible goods brings competitive advantage for the firm; foundational premise 1 (FP1) suggests that it is not the product that the aim of consumer's acquisition, but rather the benefit available through the service of the provider.
Since the tangible product in this case is the Nike+ Fuelband, the process of exchange between Nike and consumers is indirect. This means that based on traditional view of marketing, Nike+ Fuelband as a product, money as the value of the product and all the means of indirect exchange obscure the service-for-service nature of exchange, which is in line with the second foundational premises of service dominant logic (FP2).
Foundational premise 3 (FP3) implies that in service dominant logic, goods are merely a way of distribution for service provision. As it can be seen for the case of Nike+ Fuelband, consumers need to get motivated for their physical routines. This motivation is provided and embedded inside the Nike device through a set of gamified services as well as social layers. Therefore Nike+ Fuelband is just a mechanism to deliver a gamified device to meet consumer's needs.
Gamification provides a platform for both consumer and the firm to interact and exchange information. As users receive relevant data regarding their performance from Nike+ Fuelband, it gives a great opportunity for Nike to access this big data and employ it for the next innovative services. Moreover, Nike+ community takes user's insights on the device and their ideas of the product and therefore provides an extreme source of competitive advantage for Nike. In this case foundational premise 4 (FP4) that claims knowledge is the foundational source of competitive advantage can be fulfilled.
As for foundational premise 5 (FP5), which proposes that all economies are service economies, it is argued in the literature review that service is only now becoming more apparent with increased specialization and outsourcing. Gamification has helped the offering to be more visible due to the service nature
One of the most important aspects of shifting towards service dominant logic is the idea of consumer as a co-creator of value. According to FP6, there is no value until an offering is used. Nike+ Fuelband facilitates the usage experience and attempts to make the consumers part of value-creation process by motivating them to achieve more fuels and participate in online community.
Since value is always co-created by consumers (FP6), it cannot be embedded in manufacturing process (FP7) and therefore the company can only make value propositions. By adding a gamified layer to the core product, Nike simplified the acquisition of value proposition in order to engage the customers to the service of value-in-use. According to foundational premise 8 (FP8), a service-oriented view of marketing is relational and customer-centric. This means, operant resources being used for the benefit of consumers essentially put the consumers in the center of value creation and thus entails relational. As it can be seen through gamified Nike+ Fuelband, the consumer is always at the center of value creation process and therefore, the device per se is just a carrier of the value.
Organizations exist to serve society through the integration and application of resources and transform micro-specialized competences into services that are demanded in the marketplace (Vargo & Lusch, 2006). This foundational premise of service dominant logic can be achieved by the use of gamification. Nike+ Fuelband integrates all the micro-specialized capabilities that customers demand into a service offering through gamification.
Furthermore, based on foundational premise 10 (FP10) value is always and phenomenologically determined by the customers. People have different motives for using Nike+ Fuelband and they define the value according to their own perceptions and situational consumption. Therefore the perceived value varies by different customers. Gamification delivers a platform for a range of purposes, and due to use of big data, it helps the firm to identify the perceived value by customers.
Lusch et al (2007) argue that service dominant logic and its foundational premises provide competitive advantage for a company. It argues that since applied operant resources are what exchanged in the marketplace (FP1), they are indeed source of competitive advantage and the firm's ability to integrate (FP9) operant resources (FP4) develops capability to gain competitive advantage through innovation. Besides, the trends of open standards, specializations and reduced obstacles of technology application increase the prospect of customers and firms relationship (FP6, FP8). Due to customer's role as a value co-creator (FP6), and the firm's role as a resource integrator (FP9), competitive advantage is increased by proactively involving both consumers and value network partners. Furthermore, expertise, physical assets, risk taking and psychic benefits influence consumer's motivation and level of participation (FP6, FP9) in service delivery through collaboration (FP8).
On the other hand, from service dominant logic point of view, gamification is defined as a process of enriching a service with affordance for gameful experience in order to support customer's overall value creation (Houtari & Hamari, 2012). Both service dominant logic and gamification concept make explicit notion of value co-creation; value cannot be embedded within the product but rather be created by consumption (value-in-use). Gamification can reinforce customer's value co-creation by enhancing a service layer to the core product.
6. Discussion
This chapter addresses the research question based on the findings in Nike+ Fuelband gamified platform and its relationship to service dominant logic of marketing. With this empirical research, this thesis investigated why gamification can be used as a platform for transitioning from goods dominant logic to service dominant logic.
Based on the findings of the case and foundational premises of service dominant logic, this section will discuss the outcome of the case.
Transitioning from goods dominant logic to service dominant logic requires methods and empirical research that could assist in the process of transition (Deighton & Narayandas, 2004). That was the main reason for selecting this case to study and identify an appropriate tool for this transition.
Gamification has gained a lot of attention as a mean to motivate, involve and enhance customer's activity for the purpose of marketing in order to retain consumers in different business environments (Deterding et al., 2011). In particular, it is observed that Nike employs a wide range of gamification strategies for Nike+ Fuelband, which are intended to assist consumer's cocreation of value. The gamified service is leveraged through integrating game mechanics such as points, goal settings, challenges, achievements, rewards and status along with social layer embedded inside the product. Besides, a community is offered for consumers to participate and interact with other Nike+ Fuelband users and share their opinions and challenges.
Nike+ Fuelband is designed to give the consumers an opportunity to stay motivated in their exercises and empower them to measure their physical movements. This is obvious from the first impression of the device. Moreover, assistance provided from the online crowdsourced community plays a key role to maintain users intrinsically motivated and provoke a sense of belonging. Members are encouraged to participate in the discussions and share their challenges along with their feelings about the Nike+ Fuelband. They also receive direct inspirational quotes and comments from Nike+ community leader board which brings a sense of trust and support to the users.
Gamified platforms are usually criticized for being too concentrated on game mechanics and numerical measurement like points and bonuses (Deterding, 2011). According to definition by Houtari and Hamari (2012), "gamification refers to a process of enhancing a service with affordance for gameful experiences in order to support user's overall value creation".
This definition stresses on the purpose of gamification, which is the experience it attempts to give rather than the methods. Other definitions mostly rely on the impression that gamification is merely achieved through the use of game elements. However, if the idea of using game elements in non-game contexts is the main factor in gamification, one could conclude that loyalty programs, decision support systems and other services that have points, levels and other metrics would also be considered as games.
The term affordance in this definition can refer to any entity that service system contributes to the gameful experience. The definition highlights that the gamification process does not necessarily have to be effective. In a sense that gamification can only attempt to reinforce the customer in creating gameful experience (Houtari & Hamari, 2012). Therefore the successfulness of gamification can only be measured through consumer's perspectives. In case of Nike+ Fuelband the company has the opportunity of using big data to analyze consumer's insights on the product. Moreover, by creating a crowdsourced online platform, Nike access to huge amount of information regarding consumer's habits and perceptions.
Another aspect of gamification definition (service-based) is the word "enhancement" which refers to the service logic of gamification. It means that gamification attempts to describe a service system where a core service is enhanced by another one. This is important form marketing point of view. To clarify, gamification cannot be defined by itself but rather by enhancing other services. For example, Foursquare, is not a gamified service by itself, but it can gamify and thus enhance other services by adding rules, goal, feedback and rewards.
It is also essential to note that not all service systems can be gamified according to this definition, it is important that the enhancing system reinforce the core service and not the opposite. In fact, it could be difficult to distinguish between core service and the enhancing service. It is always the consumer's subjective perception that defines what can be considered as a core service of a firm (Houtari & Hamari, 2012).
As findings revealed in analysis part, gamification used in Nike+ Fuelband does not rely merely on game mechanics and quantitative measurements but rather stepped outside the realm of pure gamification platforms and simple game elements by offering sufficient game features in order to maintain long-term customer's engagement and reduce the risk of using the device and its service just for the sake of playing a game. Moreover, game dynamics that are the user's behavioral pattern in response to game dynamics (LeBlanc, Hunicke, & Zubek, 2004) were investigated through Nike+ online community. It appeared through netnographic analysis that customers consider Nike+ Fuelband a fun way to stay motivated for working out and employ this fun as a tool for co-creation activities which is in line with the notion of hard fun proposed by McGonial (2011).
Furthermore, consumers actively participate in Nike online community. The supports from the community members as well as the leader board have made the online community a place for users to get together and build connection with other members. This helps them to challenge each other and also receive inspiring comments.
In order to analyze the compatibility of gamification with service dominant logic, this study employed foundational premises of S-D logic and tried to relate them with findings in Nike+ gamification. The S-D logic focuses on service, not product or services. This variation has created confusion and resulted in criticism of the study (O'Shaughnessy & O'Shaughnessy, 2011). According to the definition of service within S-D logic: the process of using one's competences for the benefit of another party (Vargo S. L., 2009) and foundational premise 1 (FP1), service is fundamental basis of exchange. Nike+ Fuelband is in fact a type of service offering for consumers and what is exchanged between the firm and customers is proven to be service.
Nevertheless service dominant logic does not reject the value of goods (Lusch, 2011) FP3 argues that it could be within the process of value creation and that actual integration along with other resources is essential for economic success (Ballantyne & Varey, 2008). Furthermore, service dominant logic differentiates resources and labels them as "operant" and "operand". As opposed to goods dominant logic, which is centered upon operand resources and recognizes customers as operand (Parry, Mills, & Purchase, 2011), Nike+ gamified platform considers customers as operant resources and the primary source of value creation. Therefore, service dominant logic restructures the view on resources and value. Tangible products are no longer fundamentally valuable and basis for exchange. Based on this logic, value is no longer embedded inside an offering and thus transferrable, but rather the outcome from interaction between the value provider and value receiver. This means value is not created in exchange, but co-created by using it and in a context (Chandler & Vargo, 2011). Nike applied this idea into the Fuelband through embedding a gamified layer as well as social settings to prepare all it takes for consumer's value co-creation. This is in contrast with goods-dominant logic that believes value is understood in exchange. According to this view, value can be produced as a product or service and exchanged in the market for money (Vargo & Lusch, 2004). Following such concept, G-D logic makes a clear distinction between producer and consumer and the value chain (Vargo & Lusch, 2008). Value chains refers to a connected set of activities where the producer of an entity adds value by performing an act and exchange the unit with a customer in the marketplace (Vargo, Maglio, & Akaka, 2008).
Service dominant logic on the other hand states in foundational premise 6 (FP6) that value is always co-created with customers (Vargo & Lusch, 2008). This view of value co-creation discards separating conventional value chain and suggests a system where consumer and producer create the value by integrating their resources in a logical way (Lusch, 2011). The concept of co-creation then considers that value is determined by the consumer in usage process and made it clear in foundational premise 10 (Ramirez, 1999) (Gronroos, 2004).
The co-creation of value for Nike+ Fuelband appeared to be connected with consumer's intrinsically motivation for participating in gameful experiences. Gamification thus assists users with the process of value co-creation.
Based on service dominant logic perspective, consumers do not buy goods but rather look for value proposition, which they think to be potentially valuable and this value is only understood and realized inside consumer's context. Before this value realization point, the offering has no practical value for customers. This is stated in FP7 that the company is unable to deliver value but only offer value propositions (Ng, Parry, Smith, Maull, & Briscoe, 2012). This is also proven to be true for Nike+ Fuelband, since consumers are seeking for a service to keep them motivated;
the wristband is merely a value proposition from Nike that can be potentially valuable.
Although several arguments and discussions over the importance of service dominant logic has been studied, only few tried to operationalize the concept. If a company decides to make transition from goods dominant logic to service dominant logic, what is essential is to display whether an empirical and realistic structure of value proposition based on S-D logic, is feasible. That is the only way that a company can grasp an insight of why and when service dominant logic can be beneficial. Knowledge and understanding of two different fundamental approaches in marketing can be useful for firms to examine different logics and explore the transitioning process (Ng, Parry, Smith, Maull, & Briscoe, 2012).
7. Conclusion
This thesis studied a single exploratory case study of Nike+ Fuelband to investigate why gamification can be used as a platform for transitioning from goods dominant logic to service dominant logic. By employing netnographic approach for analysis, this research explored consumer's motivation for using gamified Nike+ Fuelband as well as participating in online community. It revealed that game mechanics used in the device such as points, challenges, rewards etc. are the key drivers for consumers to get intrinsically motivated and thus enhance their value co-creation. Until this point, the gamification proved to be a great tool for user's involvement. Moreover, this research focused on anchoring the findings in gamification with the new approach in marketing i.e. service dominant logic, which is grounded on ten foundational premises. Based on the literature review in S-D logic and analysis of Nike gamified platform, it is discovered that gamification can be used for Nike as a platform for shifting from goods dominant logic to service approach.
Nike is one of the most successful companies that despite of manufacturing tangible products, turned its approach towards service offering and considered customer as co-creator of value. Indeed, Nike took the advantage of applying gamification for this matter and proved that it can be a unique tool for transitioning from conventional marketing approach to service dominant logic.
Gamification, the integration of game mechanics into non-game tasks, requires to get fully unpacked. It could also be argued that everything is a game in our current socio-technical context (Wark, 2007).
In spite of all the benefits, there are criticisms for use of gamification in non-game environments. Most gamification efforts have been focused on marketing purposes to increase brand awareness (Zichermann & Cunningham, 2011). Therefore gamification is mainly in use for business objectives for changing desired customer's behavior. This can be achieved through points system attached to preferred behaviors and enrichment of the experience with badges, leader boards, challenges, social elements and rewards. Based on this pattern, Schell (2010) at the Design, Innovate, Communicate, Entertain (DICE) summit anticipates a "Gamepocalypse", an unpleasant future that everybody gains worthless points for every activity. Much of Schell (2010) argument was concerned with the upcoming technologies that provide a sort of useless reward system for every single daily activity. "Your toothbrush can sense that you are brushing your teeth. Ding, five points for that. Oh, and you brushed your teeth everyday this week. Ding 20 points for that. And toothbrush and toothpaste company love this because it means you'll buy more toothbrushes and toothpaste." This could be a big challenge gamification might face that marketers manipulate customers into whatever behaviors are most beneficial. In contrast McGonial (2011) argues that game and gamification will improve cooperative productivity and capability to resolve global problems and consumers have full control over their actions. McGonial (2011) in his famous book, "Reality is Broken", questioned the positive potential of real-world challenges that can be changed through games. The popularity of the book and the interest in engagement by those approaching games from this perspective was the opposite point of Schell's (2010) argument. There are countless examples of game-based experiences that have positive and significant outcomes for those interacting with them. Yet, arguments regarding "Gamepocalypse" rooted in a market-focused aspect of gamification with money at its core (Zichermann, 2011). While for instance, Nike+ fuelband have attempted to gamify running and motivate people to be healthier, it also enhanced Nike's brand. Exploring the use of gamification, one finds that what is being offered is the sense of engagement that games provide. Of course this can be perceived differently from one person to another. What perhaps makes the vision of gamification horrifying -according to Schell- is the consumption-oriented, head-down and proper socially responsible rules behind games, not the positive outcome of gamification (O'Donnell, 2014).
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UNH Course Code: ARH430
Subject Area: Art History
Level: 400
Prerequisites: None
Language of Instruction: English
Contact Hours: 45
Recommended Credits: 3
Description
In this course, you will be engaged in an in-depth analysis and pictorial survey of one of the most remarkable and creative phases in modern art: the emergence of Impressionism and Post-Impressionism. In the Louvre, Orsay, Marmottan, and Rodin museums, you will study the original paintings and sculptures of that colorful, creative and revolutionary group of artists that included Monet, Manet, Renoir, Degas, Cezanne, Van Gogh, Gauguin, Seurat, Toulouse-Lautrec and Pissarro. Throughout this exploration, you will seek to understand the impact these and related artists had, not only on late 19th century and later 20 th century artistic creativity, but also on the socio-political European—and particularly French—order from which they sprang. And to measure and evaluate the impressive legacy of Impressionism and Post-Impressionism, you will analyze in situ the many great masterpieces these movements generated and consider how they came to represent both a sharp break with the past and a harbinger of the future modernist work yet to come.
Your investigation begins by seeking out the origins of modernism, reviewing the foundational aesthetic assumptions of the late 18 th and early 19 th centuries and linking them to the two structural cataclysms of that anxious age: the French and industrial revolutions. To this end, you will begin with a general overview of the evolution of early 19 th century painting, focusing on the key characteristics, artists and masterpieces of the three major stylistic moods of the age: Neo-Classicism, Romanticism and Realism. Here too you will study representative original paintings by David & Ingres, Delacroix & Gericault, Courbet, Millet and Daumier among many others. As you complete your study of these movements and of the fundamental aesthetic evolution heralding the arrival of the Impressionists, you will take particular note of the impact of industrial and social change and of the new technologies both preoccupying and inspiring artists of the day. Side by side with this contextual study, you will explore the new formal aesthetic revolutionizing the treatment of composition, color, light, and brush stroke.
Turning to the mid-19 th century revolt against official and academic art, you will then trace the evolution of the many artistic impulses, theories and compositional techniques of Impressionism in the 1860s and after. You will focus on the mixed reception of Impressionism in the new art scene in Europe and on the progressive rejection of many of its principles by the 1870's and 1880's, leading to the construction of new, Post-Impressionist pictorial worlds, such as Neo-Impressionism and Symbolism.
Through a formal and contextual exploration of the most significant painting and sculpture from the late 19 th century, you will set the groundwork for understanding and appreciating both the new modernist aesthetic of Impressionism and the even more innovative and revolutionary artistic expressions of the Post-Impressionism period which, taken together, conveyed the colorful exuberance and quaint confidence of the restless years before the Great War.
Learning Objectives
- Chronologically organize and interrelate the main periods and movements of 19th century art
Cognitive Skills (Artistic & Historical)
-
Identify selected 19th century art work both by artist and by period
- Acquire a visual literacy that you can verbally articulate and persuasively convey
content, subject, composition, structure, color, light, texture, perspective, proportion, space, etc.)
- Recognize and evaluate specific formal elements of 19th century artistic language (eg. media, technique,
- Relate relevant biographical information to corresponding artistic production
- Situate artistic movements within the context of significant political & social events
- Identify, explain & interrogate the constituent elements of Impressionism and Post-Impressionism
- Demonstrate how selected works of art convey and reflect societal concerns
Critical Thinking Skills (Oral & Written)
- Evaluate the impact of theoretical concepts upon understandings of Impressionist and PostImpressionist art (e.g. Psychoanalysis, Marxism, Feminism, Post-colonialism, and Phenomenology)
- Use standards of critical thinking when analyzing 19 th century artworks
- Describe and evaluate how French art engaged other parts of the world via orientalism, imperialism, and colonialism
- Research, write and defend an essay in conventional form explaining the outlook, techniques and impact of 19 th century artists in historical perspective
- Identify the influence of technological and political change on artistic development
Attitudinal Skills (Affective)
- Respond to art on critical-analytical levels appropriate for academic study as well as emotional levels appropriate for personal interest
- Demonstrate a heightened appreciation and curiosity for the form & content of 19 th century artworks
- Value 19th century art as an approach to learning about cultural differences
Behavioral Skills
- Stimulate active and relevant class discussions on key course concepts
- Acquire and use effectively lexical skills for communicating key course-related concept with people from different cultures
Instructional Format
Class will meet twice a week for 75 minutes. Course work is comprised of in-class lectures and discussions, group exercises, student exposés, extensive outside readings, independent group and individual onsite study, a research project, and a number of instructor-led onsite research excursions to relevant course-related sites and institutions in the city. Some onsite study will be integrated into class-time while others will be assigned as out-of-class independent learning.
More specifically, each session will be a combination of lectures, studies of illustrated painting & sculpture, and formal analysis of artworks. The second half of each session at CEA will be devoted to the "Discussion" readings, which you should print out in hard copy and be prepared to discuss in-depth. A significant portion of class-time will also be spent in many of the world's greatest galleries and museums located here in Paris, including the Louvre, Musée d'Orsay, and the Musée Rodin. You will be required to take notes and complete assignments on-site.
Please be advised: If you require any special accommodations or have any special learning needs, please inform the instructor and the onsite academic affairs staff on the first day of class.
Workload Expectations: In conformity with CEA policy, all students are expected to spend at least two hours of time on academic studies outside of, and in addition to, each hour of class time.
Form of Assessment
The instructor will use numerous and differentiated forms of assessment to calculate the final grade you receive for this course. For the record, these are listed and weighted below. The content, criteria and specific requirements for each assessment category will be explained in greater detail in class. However, you must complete all grading assessment categories to receive a grade for this course. In addition, your work and behavior in this course must fully conform to the regulations of the CEA Academic Integrity Policy to which you are subject. Finally, all formal written work you carry out in this course (research papers, projects, studies, etc.) must be submitted in electronic format. Your instructor may also require that you hand in a hard copy of such work.
Please be advised: Any grade dispute you encounter in this course must immediately be discussed with the instructor and definitively resolved before the last week of class. Only end-of-term assignments graded after the end of your program are subject to CEA's formal grade appeal procedure. For more information, see CEA Academic Policies.
Class Participation: This grade will be calculated to reflect your participation in class discussions, your capacity to introduce ideas and thoughts dealing with the required texts, your ability to use language effectively, and your analytical skills in intellectual, constructive argumentation. When determining your class participation grade, traditional criteria such as material preparation, completed reading before class, and collaborative group work are all evaluated. But it is the active, meaningful and informed verbal and written contribution that you make that is most important to your overall participation grade. Indeed, willingness to share views in classroom discussions and the insightfulness of your comments and questions about assigned readings will all be taken into account when evaluating your participation. Additionally, it is important to demonstrate a positive and supportive attitude to the instructor and your classmates, and give full attention to class activities (i.e., cell-phones off, laptop for notes only, etc.). Whereas attendance and punctuality are expected and will not count positively towards the grade, laxity in these areas will have a negative effect. The instructor will use the following specific criteria when calculating your class participation grade:
| | Criteria for Assessing Class Participation | Grade |
|---|---|---|
| You make major and original contributions that spark discussion, offering both critical and analytical comments clearly based on readings and research and displaying a working knowledge of theoretical issues. | | |
| You make significant contributions that demonstrate insight as well as knowledge of required readings and independent research. | | |
| You participate voluntarily and make useful contributions that are usually based upon some reflection and familiarity with required readings. | | |
| You make voluntary but infrequent comments that generally reiterate the basic points of the required readings. | | |
| You make limited comments only when prompted and do not initiate debate or show a clear awareness of the importance of the readings. | | |
| You very rarely make comments and resist engagement with the subject, attending class having manifestly done little if any preparation. | | |
Short Paper: Museum/Exhibition Review: For this paper, you will write a 3-page (12-point font, doublespaced) review of a museum or exhibition that you attend in Paris. See Paper 1 Guidelines.
Midterm & Final Examinations: The midterm and final exams are designed to establish and communicate to you the progress you are making towards meeting the course learning objectives listed above. They are comprised of both ID and essay questions which test your abilities in three important areas of competency: the amount of information you master; the accuracy of the information you present; and the significance you ascribe to the facts and ideas you have integrated across your study in this course.
Research Project: The instructor will explain in detail the specific approach and suggested content that will be integrated into your research, methodology and paper on an angle to be decided in conjunction with the instructor. You will submit to the instructor periodic updates on the progress of your research. As a quick checklist of things to begin thinking about, the following guidelines will help you in deciding on a research topic and in planning its execution.
1. Make a clear & compelling link between your topic, course themes and France.
3. Search out a wide variety of bibliographical, visual & "residual" extant sources.
2. Link your topic to the course learning objectives listed above.
4. Show personal involvement in your subject in a demonstrable way.
5. Make your finished project one that could only be done in your host city.
In this exercise, your work will be evaluated according to the tenets and principles of scholarly academic research and Standard English usage and expository writing. Therefore, ensure that you are using a recognized handbook of style, a good dictionary, and that you are guided by the highest principles of academic integrity. The instructor will supply you with additional guidelines and advice on research topics, methods and resources for successfully completing your paper here in a "foreign" country. See Research Paper Guidelines.
| | CEA Grading Scale | | | |
|---|---|---|---|---|
| Letter Grade | | Numerical Grade Low Range | Numerical Grade High Range | Percentage Range |
| A+ | | 9.70 | 10.00 | 97.0 - 100% |
| A | | 9.40 | 9.69 | 94.0 - 96.9% |
| A- | | 9.00 | 9.39 | 90.0 – 93.9% |
| B+ | | 8.70 | 8.99 | 87.0 – 89.9% |
| B | | 8.40 | 8.69 | 84.0 – 86.9% |
| B- | | 8.00 | 8.39 | 80.0 – 83.9% |
| C+ | | 7.70 | 7.99 | 77.0 – 79.9% |
| C | | 7.00 | 7.69 | 70.0 – 76.9% |
| D | | 6.00 | 6.99 | 60.0 – 69.9% |
| F | | 0.00 | 5.99 | 0 - 59.9% |
| W | | Withdrawal | | |
| INC | | Incomplete | | |
CEA Attendance Policy
Every student is expected to attend all scheduled class sessions on time and be thoroughly prepared for the day's class activities. In compliance with NEASC and UNH accreditation requirements, CEA instructors compile regular attendance records for every course and take these records into account when evaluating student participation and performance.
- In this course, a maximum of four days of accumulated absences due to sickness, personal emergency, inevitable transport delay and other related impediments will be tolerated.
- Your final course grade will drop one full letter grade (e.g. A- to B-) for missing five days of class and another full letter grade for missing six days of class, regardless of the reason for your absence.
- You will automatically fail a course if your absences exceed six days of class.
Furthermore, to comply with immigration and financial regulations, you must maintain full-time student status and attend at least 12 hours of class every week in accordance with this policy. Consequently, the Dean and Program Director will dismiss from all CEA courses, programs, activities and housing any student who fails to maintain full-time status.
Required Readings
Listed below are the required course textbook (Eisenman) and additional readings. Whether you buy your books from our locally affiliated merchants or whether you acquire these before arrival, you must have constant access to these resources for reading, highlighting and marginal note-taking. It is required that you have a personal copy. Copies of the Eisenman, Frascina, and Harrison texts will be placed on-reserve in the Academic Affairs office for short-term loans. Periodical literature, articles, documents, maps, digital images and other sundry materials also required for your class are available in PDF or Word format, are stored in the e-course file assigned to each class, and are located on the CEA shared drive for in-house consultation or copying to your own USB flash-drive. In addition, the Academic Affairs Office compiles a bank of detailed information about the many libraries, documentation centers, research institutes and archival materials located here in the city and accessible to CEA students. You will be required to use these resources throughout your studies. Direct access to additional resources and databanks are available to you through the online library of the University of New Haven.
Stephen F. Eisenman, Nineteenth Century Art: A Critical History, 3 rd edition, Thames & Hudson, 2007, 480 pp.
Francis Frascina et al, Modernity and Modernism: French Painting in the Nineteenth Century (Modern Art, Practices & Debates), Yale University Press, 1993, 304 pp.
C. Harrison, P. Wood & J. Gaiger (eds.), Art in Theory 1815-1900, An Anthology of Changing Ideas, Blackwell Publishing LTD, 2005., 1097 pp.
ceaClassroom: CEA's Moodle CMS
CEA instructors use the open source course management system (CMS) called Moodle which creates a virtual and interactive e-learning environment for students and educators alike. This web-based platform provides you with 24/7 virtual access to the course syllabus, daily schedule of class lectures and assignments, non-textbook required readings, and additional resources directly related to your studies. Moodle includes the normal array of forums, up-loadable and downloadable databases, wikis, and related academic support for helping ensure you achieve the course learning objectives. The ceaClassroom website is located here https://www.ceaClassroom.com/
During the first week of class, the CEA academic staff and instructors will provide you with log-in information and corresponding passwords to access this site. They will also help you navigate through the many functions and resources Moodle provides. While you may print a hard copy version of the syllabus that is projected on the first day of class, it is the class schedule on Moodle that is the definitive and official one, given that the instructor will be announcing updates and additions there and nowhere else. It is your responsibility to ensure that you have access to all Moodle materials related to your course and that you monitor Moodle on a daily basis so as to be fully informed of required course assignments and any scheduling changes that might occur.
Recommended Readings
The following books, databases and web links are excellent additional sources of relevant course material and it is recommended that you use them.
Writing Guides
Sylvan Barnet,A Short Guide to Writing about Art,
Mary Acton, Learning to Look at Paintings, New York, Routledge, 1997.
New York, Harper Collins College, 1993.
Michael Clarke, The Concise Oxford Dictionary of Art Terms, 2001.
Marcia Pointon, History of Art: A Student's Handbook, Routledge, 1997.
Further Reading in Art History
Michael Fried, Manet's Modernism: or, The Face of Painting in the 1860s. The University Press of Chicago, 1996.
T.J. Clark, The Painting of Modern Life: Paris in the Art of Manet & His Followers. Knopf, 1985.
H.E. Gombrich, The Story of Art. Phaidon, 1995.
John Rewald,
Robert L. Herbert,Impressionism: Art, Leisure, & Parisian Society. New Haven, Yale University Press, 1988.
Robert Rosenblum, H.W. Janson, Nineteenth-Century Art, Prentice Hall, 2 nd ed., 2005, 544 pp.
The History of Impressionism. Harry N. Abrams, 1990.
James Rubin, Impressionism, Phaidon Press Limited, 2004.
Van Gogh, University of California Press, 2008, 256 pp.
James Rubin,Impressionism and the Modern Landscape: Productivity, Technology, and Urbanization from Manet to
Paul Smith,Impressionism. Beneath the Surface. Perspectives: Prentice Hall, 2003.
nd
Emile Zola, The Masterpiece. Oxford University Press, 1999.
Belinda Thomson,The Post-Impressionists. Phaidon Press Limited, 2 ed., 1994.
Online Reference & Research Tools
ArtSource is a gathering point for networked resources on Art and Architecture. The content is diverse and includes pointers to resources around the net as well as original materials submitted by librarians, artists, and art historians.
ArtSource: http://www.ilpi.com/artsource/
Art Full Text: http://www.hwwilson.com/databases/artindex.htm
This database offers full text plus abstracts and indexing of an international array of peer-selected publications—now with expanded coverage of Latin American, Canadian, Asian and non-Western art, new artists, contemporary art, exhibition reviews, and feminist criticism.
Art Index Retrospective: http://www.hwwilson.com/databases/artretro.htm
An invaluable, in-depth record of contemporary art history, Art Index Retrospective allows users to search 55 years of art journalism at a keystroke. You can research leading English-language sources, plus others published in French, Italian, German, Spanish, and Dutch. Besides periodicals, you have access to data from important yearbooks and select museum bulletins.
ARTBibliographies modern: http://www.csa.com/factsheets/artbm-set-c.php
ARTBibliographies Modern (ABM) provides full abstracts of journal articles, books, essays, exhibition catalogs, PhD dissertations, and exhibition reviews on all forms of modern and contemporary art, with more than 13,000 new entries being added each year. Entries date back as far as the late 1960s.
Bibliography of the History of Art: http://library.dialog.com/bluesheets/html/bl0190.html
Bibliography of the History of Art (BHA) abstracts and indexes current publications in the history of art. BHA is the successor to RILA (International Repertory of the Literature of Art) and RAA (Répertoire d'Art et d'Archéologie). The database is a joint effort of the Art History Information Program (AHIP) of the J. Paul Getty Trust and the Institut de l'Information Scientifique et Technique (INIST) of the Centre National de la Recherche Scientifique. The database corresponds to the print bibliography of the same name.
BHA records consist of bibliographic citations, abstracts, and indexing. Abstracts may be in English or French. The database is available with both English and French indexing.
The Joconde Database: http://www.culture.gouv.fr/documentation/joconde/fr/pres.htm
This is a Digital library of works of art in French national museums.
Words of Art: http://web.ubc.ca/okanagan/creative/links/glossary.html
This online glossary of terms & concepts give you the full array of art history vocabulary.
UBC Art Resources on the Web:
http://web.ubc.ca/okanagan/creative/links/Art_Resources_on_the_WWW.html
Getty, Art & Architecture Thesaurus: http://www.getty.edu/research/conducting_research/vocabularies/aat/
Course Content
Course Content
Session
Topic
Impressionism & Post-Impressionism
Course Content
Activity
| 9 | IV. Impressionism The Franco-Prussian War Manet and Early Impressionism | Lecture & Discussion |
|---|---|---|
| 10 | III. Realism and IV. Impressionism Daumier, Millet, Corot, The Barbizon School Courbet and Manet | Onsite Instruction: Musée d’Orsay |
| 11 | IV. Impressionism Gendered Subjects and Entertainment in Haussmannian Paris | Lecture & Discussion |
| 12 | IV. Impressionism Monet, Bazille, Degas, Fantin-Latour, Renoir, Caillebotte | Onsite Instruction: Musée d’Orsay |
Assignments
Course Content
Course Content
| | Session | | Topic | | Activity |
|---|---|---|---|---|---|
| 18 | | IV. Impressionism Japonisme Impressionists Abroad Monet’s Series Paintings | | Lecture & Discussion | |
| 19 | | V. Post-Impressionism Neo-Impressionism, Pointillism and Divisionism | | Lecture & Discussion | |
| 20 | | IV. Impressionism Fashion | | Onsite Instruction: Musee d’Orsay “Impressionisme et la mode” | |
| 21 | | V. Post-Impressionism Gauguin, Bernard, and the Pont-Aven School Synthetism, Primitivism | | Lecture & Discussion | |
| 22 | | V. Post-Impressionism Van Gogh, Toulouse-Lautrec, Seurat, Gauguin, Rousseau, Serusier, the Nabis | | Onsite Instruction: Musée d’Orsay | |
Course Content
Course Content
| | Session | | Topic | | Activity |
|---|---|---|---|---|---|
| 27 | | Early 20th Century Art Cezanne, Fauvism, Cubism | | Lecture & Discussion | |
| 28 | | Claude Monet Nymphéas (Water Lilies) | | Onsite Instruction: Musée de l’Orangerie | |
| 29 | | Early 20th Century Art | | Film [Monet “La couleur de l’instant”] & Review | |
| 30 | | Final Exam | | | |
|
Volume XXXVI, no 2http://www.w8lky.orgFebruary 2022
Serving the Tri-County area since 1986
Club Programs & Events
February 5th - Club Breakfast
President's Remarks "Patience is a Virtue"
February 9th - Club Meeting (for all events, see w8lky.org)
Club Breakfast (COVID PERMITTING)
At 8:30am on the Saturday, February 5th, we will meet for breakfast at
Don Panchos Restaurant (2105 W. State St, Alliance)
All are welcome.
Club Meeting
(COVID PERMITTING)
This month, we will be meeting at Don Pancho's Tex-Mex (2105 W. State St, Alliance) February 9th Dinner at 6-ish, and meeting promptly at 7:30PM
Patience is a Virtue, is a long time saying in our Society. More than ever, that couldn't be more true than at this moment. We are entering into our third year of dealing with one form of COVID or another. We find our self not using our traditional face to face contacts or normal meetings. We are seeing a little light at the end of the tunnel. No one knows for sure when things will return to normal for organizations such as ours. So we will keep plugging along, and thank goodness we have the air waves to communicate with each other.
Winter Field Day weekend was January 29-30. We participated in a different ways than we normally do. We worked out of our Shacks or different venues. I even heard that several of our operators may be at someone Shack. Rules and procedures were posted at HTTP: www.winterfieldday.com/ We will all keep our fingers crossed that we can return to our normal system for the Summer Field Day June 25-26.
President
KE8HCY Ron Rittenhouse 983 Lilly Rd Alliance, OH 44601 firstname.lastname@example.org 330-821-5454
Secretary
KE8NAU Jeremy Toole 1830 Rosemont Rd Alliance, OH 44601 email@example.com 234-207-1376
Trustees
N8IGZ
Peter Lucke 425 E. Milton St Alliance, OH 44601 firstname.lastname@example.org 330-206-6555 (expires October, 2022)
Dwight Turner 19523 North Benton west Rd N. Benton, OH 44449 email@example.com 330-823-5011 (expires October, 2023)
Webmaster
John Myers, WG8X firstname.lastname@example.org
QSL Manager
Vice-President
KB8DNQ Douglas Matthew 4325 Woodale Ave, SE, Lot 40 Minerva, OH 44657 email@example.com 330-312-2626
Treasurer
WG8X John Myers 910 W. Mill St Alliance, OH 44601 firstname.lastname@example.org 330-936-5021
KD8YFV
K8DXR
Howard Miller 484 Linwood Dr. Alliance, OH 44601 email@example.com 330-821-9392 (expires October, 2024)
Newsletter Editor
John Myers, WG8X
Howard Miller, K8DXR firstname.lastname@example.org
AARC Meetings
The Alliance Amateur Radio Club meets on the Second Wednesday of each month at Don Panchos TexMex Cafe. For times, and program information, check the meeting announcement in this newsletter, or check our website (see below) Talk-in on either of the club repeaters. Meetings begin at 7:30 PM. Visitors are always welcome.
Find Us Online:
Web: www.w8lky.org
E-mail: email@example.com
AARC Repeaters
2 Meters
145.370 (-) W8LKY (PL - 110.9hz)
440 MHz
442.350 (+) W8LKY
(PL - 131.8hz )
W8LKY Callsign Trustee firstname.lastname@example.org
John Myers, WG8X email@example.com
Nets
Tuesday
Homeland security Net
7:00PM 147.51 Simplex
Thursday
Ten Meters
8:00PM 28.420 MHz (SSB)
8:20PM 28.100 MHz (CW)
Two Meters
9:00 PM 145.37 MHz W8LKY (-)
Officers
President's Remarks "Patience is a Virtue"
(Continued from page 1)
We continue to encourage those seeking to up grade your license status. We decided to move our VE Sessions to a quarterly system, but that can be revise if we have enough solid interest in testing before April 2022. There are a few area clubs conducting VE Sessions. It is highly recommended that you take on line practice tests before you take the actual test, your scores should be in the 80-90% range,
We are looking for a club member to step forward and become our new Training officer—are you that person? We are also looking for a club member to step forward and become net control manager of our Thursday night 8pm CW Net. These are wonderful opportunities for you to continue your personal service to our club and Amateur Radio in general. One late addition to my remarks is that National Weather Service will be conducting SkyWarn Training in Late March of 2022. This has always been mandatory attendance for all Amateur Radio Operators. It will greatly influence by COVID Status. Normally there are Two(2) Sessions each each year, one in the Spring and one in the Winter months.
It is AARC Club dues time for 2022. You can do it all on line or the old fashion way. Please send your check with your completed renewal form to our mailing address. The mailing address is Alliance Amateur Radio Club, P.O.Box3344 , Alliance, Ohio 44601. All dues are due by March 31st.
I have a suggestion for prospecting for new hams. Ask the prospect, to sit down with you when you participate on Radio club nets. Share with the prospect what we do and why and the hobby never gets old, because there is so much to do and learn. Mentoring a new ham is fun also, you see yourself in him or her as they grow in knowledge and experience. Hand out the club's business cards and pamphlets. Take the time to ask someone to join us in the world's most fascinating hobby Amateur Radio.
73 and we will be in QSO with each other soon!!! Ron(KE8HCY)
PAGE 3
Items for sale from the WA8NEJ Estate
- J-38 KEY ON BASE $35.00
- ASTRON RS-20A POWER SUPPLY (output terminals have been replaced with 1/4-20 bolts.) $45
- Butternut Spider antenna (no hub) $15
- Drake 2-CS speaker ASK
- Drake 2B receiver - with manual, schematic, and documentation of work done (date unknown) - has Crystal Calibrator ASK
- Drake 2-BQ speaker/Q-Multiplier ASK
- EICO 706 CODE OSCILLATOR (working) $15
- Heathkit EK-1 VOM, with companion manual $15
- Heathkit EK-2 Receiver - looks complete, however the chassis is loose in the case. Has not been powered up. $15
- K9LU BD3 CLASSIC KEY (IAMBIC)
- KANTRONIC PACKET COMMUNICATOR 9612
- MFJ MFJ-1272BYV Microphone/TNC Switch Model
- MFJ MFJ-207 HF SWR ANALYZER M/N MFJ-207 W/ 2 AC adaptors - 1.75 - 30MHz $20.00 (Battery Clip needs re-attached to the case)
- MFJ MFJ-962C tuner MFJ-962C - 1.5KW (Not roller inductor) (Band selector switch is damaged and needs replaced. $75.00
- Micronta 22-124A Power Supply $5
- Realistic 28-110 3 TRANSISTOR SHORTWAVE RADIO KIT $5
- Standard C528A HT 2M/440 w/ drop-in charger & 7(!) battery packs; 2 of them look like they've never been opened. Also has a speaker mic $35
- Tigertronics BayPac BP-1 Packet Modem $10
Interested in any of these items?
firstname.lastname@example.org
Contact John, WG8X
330-936-5021
Page 4
Items for sale from the WA8NEJ Estate
Books (Make offer)
- Radio Servicing by Abraham Marcus 1960
- Hints and Kinks Vol 6 by ARRL 1959
- The Radio Amateur's License Manual 1970 by ARRL
- A course In Radio Fundamentals by George Grammer (ARRL)1960
- On the Air with Ham Radio by Steve Ford 2001 (ARRL)
- Amateur Radio Theory Course by Martin Schwartz 1992 (AMECO)
- Elements of Radio by Marcus and Marcus 1959
- The ARRL Extra Class License Manual Ninth Edition (with practice cd)
- Personal Computers in the Ham Shack by Paul Danzer and Richard Roznoy (ARRL) 1997
- Ham Radio FAQ by ARRL 2001
- The ARRL Operating Manual For Radio Amateurs 12th Edition2019
- ARRL 2019 Repeater Directory
- RF Exposure & you Hare 1998
- Radio Amateurs Handbook ARRL 1978
- Radio frequency Interference & how to fix it ARRL 1991
- Understanding Amateur Radio ARRL 1977
- Ameco Advanced Class Radio Amateur License Guide Ameco 1968
Interested in any of these items?
email@example.com
Contact John, WG8X
330-936-5021
PAGE 5
AARC Repeaters
145.370 (-) W8LKY (PL - 110.9hz)
2 Meters
Echolink:
440 MHz
Nets
442.350 (+) W8LKY (PL - 131.8hz )
Tuesday
7:00PM 147.51 Simplex
Homeland security Net
Thursday
Ten Meters
8:00PM 28.420 MHz (SSB)
8:30PM 28.100 MHz (CW)
Two Meters
9:00 PM 145.37 MHz W8LKY (-)
Minutes
Remember, our club minutes (with the financials redacted) can be found on our website at w8lky.org.
The treasurers report can be obtained by e-mailing the treasurer at firstname.lastname@example.org
AARC Monthly VE Testing
The Alliance ARC is now doing monthly VE testing.
Our first session of 2022 to be announced
Testing is held at the First Christian Church, 1141 W. Beech Street, in Alliance
Registration will be between 8-9AM, and testing will begin at 9 AM
The cost for testing will be $15.00
Applicants Need to Bring the following;
- Copy of any current Amateur Radio License
- You must have an E-mail address for the FCC form. This is how they will contact you.
- If not licensed please go to the FCC website and register for an FRN. Bring this number with you as it is needed for your application.
- Photo ID showing current address like a Driver's License
- One additional ID, like a CCW Permit, Passport or work ID
- $15.00, Cash only and exact change is encouraged
- A calculator is optional for math problems
For any additional questions please contact VE Team Liaison
Karen Andrews, N8HUC (330)206-0563
WG8X Rambling
Hi everyone,
Well, as one of our group said, "Winter Field Day has arrived". It has gone from a little known contest in one of the coldest months of the year, to a major contest that could someday equal some of the ARRL sponsored contest offerings.
This year, I was fortunate to operate with a group of guys known as the Pedestrian ARC. We consist of Mike (KD8ENV), Scott (N3JJT), Tony (KD8BBK), and myself. We try to get out once or twice a year just to operate & have fun. This year, we returned to Mohican SP in Loudonville. We only operated on Saturday. But as you can see from the pictures, we had a lot of fun. We do our best not to takes things too seriously.
Yes, both Field Days are good practice should you ever need to quickly put a station on the air from a non-standard location. But, more importantly is to get out, have fun, and make memories that will stay with you for years to come.
Beginning at 1900Z, 40 Meter SSB was jam packed with stations. Our first run of the afternoon lasted an hour, and only ended so we could take a well-deserved break.
I've not heard of any other WFD activity from club members, other than the team of W8JMY, KC8SUI, and KD8ZEZ. Did you operate? Even if you only made a couple of contacts, please let me know about it.
The trip to winter Field Day was interesting as well. Look for more pictures on the next page.
PAGE 7
WG8X Rambling - CONT
(Continued from page 7)
Tony, KD8BBK shares this picture (presumably from Amish country).
Newsletter Information
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Journal of University of Garmian
https://doi.org/10.24271/garmian.scpas13
On Minimal -Open Sets
Bijan Davvaz , Sarhad F. Namiq
Department of Mathematics Yazd University, Yazd, Iran Mathematics Department, College of Education, University of Garmian, Kurdistan- Region, Iraq
Abstract
In this paper, we defined 𝜆 𝑔𝑐 -open set by using s-operation and 𝑔-closed set, then by using 𝜆 𝑔𝑐 -open set, we define 𝜆 𝑔𝑐 -closed set. In addition we define 𝜆 𝑔𝑐 -closure of subset 𝐴 of 𝑋 ( 𝜆 𝑔𝑐 𝐶𝑙 𝐴 ) and 𝜆 𝑔𝑐 -interior of subset 𝐴 of 𝑋 𝜆 𝑔𝑐 𝐼𝑛𝑡 𝐴 by using 𝜆 𝑔𝑐 -closed set and 𝜆 𝑔𝑐 -open set respectively. Furthermore we introduce and discuss minimal 𝜆 𝑔𝑐 -open sets in topological spaces. We establish some basic properties of minimal 𝜆 𝑔𝑐 open. We obtain an application of a theory of minimal 𝜆 𝑔𝑐 -open sets and define a 𝜆 𝑔𝑐 -locally finite space then we prove, Let 𝑋 be a 𝜆 𝑔𝑐 -locally finite space and 𝐵 a nonempty 𝜆 𝑔𝑐 - open set. Then there exists at least one (finite) minimal 𝜆 𝑔𝑐 -open set 𝐴 such that 𝐴 𝐵 where 𝜆 is semi-regular.
1. Introduction
The study of semi open sets in topological spaces was initiated by Levine[1]. The complement of is denoted by . The concept of operation was initiated by Kasahara [2]. He also introduced -closed graph of a function. Using this operation, Ogata[3] introduced the concept of -open sets and investigated the related topological properties of the associated topology and . He further investigated general operator approaches of closed graph of mappings. Further Ahmad and Hussain[4] continued studying the properties of –open( -closed) sets. In 2009, Hussain and Ahmad [5], introduced the concept of minima l -open sets. In 2011[6] ( resp., in 2013[7]) Khalaf and Namiq defined an operation called s-operation. They defined -open sets [8] which is equivalent to -open set[6] and -open set[7] by using s-operation. They worked in operation in topology in [9-18].
In this paper, we introduce and discuss minimal -open sets in topological spaces. We establish some basic properties of minimal -open sets.
First, we recall some definitions and results used in this paper.
2. Preliminaries
Throughout, denotes a topological space. Let be a subset of then the closure and the interior of are denoted by and respectively. A subset of a topological space is said to be semi open [1] if ( ) which is defined by Norman Levine The complement of a semi open set is said to be semi closed [1]. The family of all semi open (resp. semi closed) sets in a topological space is denoted by or (resp. or ). And also generalized closed (g-closed) set is defined by him which a subset of , when ever for all open subset of [19].
Definition 2.1.[7]
We consider as a function defined on into and is called an soperation if for each non-empty semi open set
Remark 2.2. [7]
It is assumed that and for any s-operation
Definition 2.3.[7]
Let be a topological space and be an s-operation, then a subset of is called a -open set [8]which is equivalent to –open set[6] and -open set [7] if for each there exists a semi open set such that and The complement of a -open set is said to be -closed. The family of all -open ( resp., -closed ) subsets of a topological space is denoted by or ( resp. , or ).
Definition 2.4.[7]
A s-operation on is said to be semi-regular which is equivalent to -regular [6] if for every semi open sets and of there exists a semi open set containing x such that
3. Minimal 𝜆𝑔𝑐 -Open Sets
Definition 3.1. Let be a topological space
1) A -open[8]( -open[6], -open[7] ) subset of is called -open if for each there exists a -closed set such that The complement of a -open set is called -closed. The family of all -open (resp., -closed) subsets of a topological space is denoted by or ( resp. or ).
2) The -closure of subset of ( ) is the intersection of all -closed sets containing
3) The -interior of subset of is the union of all -open sets of contained in
4) Let be a -open set. Then is called a minimal -open set if and are the only -open subsets of
Example 3.2
Let { } and We define an s-operation as if { } and otherwise. The -open sets are { } We have { } is minimal -open set.
Proposition 3.3
Let be a nonempty -open subset of a space If then for any nonempty subset of
Proof. For any nonempty subset of we have On the other hand, by supposition we see = implies Therefore we have for any nonempty subset of
Proposition 3.4
Let be a nonempty -open subset of a space If for any nonempty subset of then is a minimal -open set.
Proof. Suppose that is not a minimal -open set. Then there exists a nonempty -open set such that and hence there exists an element such that Then we have { } and { } This contradiction proves the proposition.
Remark 3.5
In the remainder of this section we suppose that is an s–regular operation defined on a topological space .
Proposition 3.6
The following statements are true:
(1) If is a minimal -open set and a -open set. Then or.
(2) If and are minimal -open sets. Then or .
Proof.(1) Let be a -open set such that Since is a minimal -open set and we have Therefore
(2) If then by (1), we have and . Therefore,
Proposition 3.7
Let be a minimal -open set. If is an element of then for any -open neighborhood of .
Proof. Let be a -open neighborhood of such that B. Since where is –regular operation, then is -open set such that and This contradicts our assumption that is a minimal -open set.
Proposition 3.8
Let be a minimal -open set. Then for any element of { is -open neighborhood of }.
Proof. By Proposition 3.4, and the fact that is -open neighborhood of we have { is -open neighborhood of } Therefore, the result follows.
Proposition 3.9
If is a minimal -open set in not containing Then for any -open neighborhood of either or .
Proof. Since is a -open set, we have the result by Proposition 3.3.
Corollary 3.10
If is a minimal -open set in not containing such that If { is -open neighborhood of } Then either or .
Proof. If for any -open neighborhood of then { is -open neighborhood of } Therefore Otherwise there exists a -open neighborhood of such that Then we have
Corollary 3.11
If is a nonempty minimal -open set of then for a nonempty subset of .
Proof. Let be any nonempty subset of Let and be any -open neighborhood of By Proposition 3.4, we have and Thus we have and hence This implies that This completes the proof.
Combining Corollary 3.11 and Propositions 3.3 and 3.4, we have:
Theorem 3.12
Let be a nonempty -open subset of space Then the following are equivalent:
(1) is minimal -open set, where is -regular.
(2) For any nonempty subset of
(3) For any nonempty subset of
4. Finite 𝜆 𝑔𝑐 -Open Sets
In this section, we study some properties of minimal -open sets in finite -open sets and locally finite spaces.
Proposition 4.1
Let be a topological space and a finite -open set in Then there exists at least one (finite) minimal -open set such that
Proof. Suppose that is a finite -open set in Then we have the following two possibilities:
(1) is a minimal -open set.
(2) is not a minimal -open set.
In case (1), if we choose then the proposition is proved. If the case (2) is true, then there exists a nonempty (finite) -open set which is properly contained in If is minimal -open, we take If is not a minimal -open set, then there exists a nonempty (finite) -open set such that We continue this process and have a sequence of -open sets Since is a finite, this process will end in a finite number of steps. That is, for some natural number we have a minimal -open set such that This completes the proof.
Definition 4.2
A space is said to be a -locally finite space, if for each there exists a finite -open set in such that
Corollary 4.3
Let be a -locally finite space and a nonempty -open set. Then there exists at least one (finite) minimal -open set such that where is semi-regular.
Proof. Since is a nonempty set, there exists an element of Since is a -locally finite space, we have a finite -open set such that Since is a finite -open set, we get a minimal -open set such that by Proposition 4.1.
Proposition 4.4
Let be a space and for any a -open set and a finite -open set. Then is a finite -open set, where is -regular.
Proof. We see that there exists an integer n such that and hence we have the result. Using Proposition 4.4, we can prove the following:
Theorem 4.5
Let be a space and for any a -open set and for any a nonempty finite -open set. Then ⋃ is a -open set, where is semi-regular.
5. More Properties
Let be a nonempty finite -open set. It is clear, by Proposition 3.3 and Proposition 4.1, that if is -regular, then there exists a natural number such that{ }is the class of all minimal open sets in satisfying the following two conditions:
(1) For any with and
(2) If is a minimal -open set in then there exists with such that
Theorem 5.1
Let be a space and a finite -open set such that is not a minimal -open set. Let { } be a class of all minimal -open sets in and Define { is -open neighborhood of }.Then there exists a natural number { } such that is contained in where is -regular.
Proof. Suppose on the contrary that for any natural number { } is not contained in By Corollary 3.7, for any minimal -open set in By Proposition 4.4, is a finite -open set. Therefore by Proposition 4.1, there exists a minimal -open set such that Since we have is a minimal -open set in By supposition, for any minimal -open set we have Therefore, for any natural number { } This contradicts our assumption. Hence the proof.
Proposition 5.2
Let be a space and be a finite -open set which is not a minimal -open set. Let { } be a class of all minimal -open sets in and Then there exists a natural number { } such that for any -open neighborhood of is contained in where is -regular.
Proof. This follows from Theorem 5.1, as { is -open of } . Hence the proof.
Theorem 5.3
Let be a space and be a finite -open set which is not a minimal -open set. Let { } be the class of all minimal -open sets in and Then there exists a natural number { } such that where is -regular.
Proof. It follows from Proposition 5.2, that there exists a natural number { } such that for any -open neighborhood of Therefore implies This completes the proof.
Proposition 5.4
Let be a finite -open set in a space and for each { } is a minimal open set in A. If the class { } contains all minimal -open sets in then for any where is semi-regular.
Proof. If is a minimal -open set, then this is the result of Theorem 3.11 (2). Otherwise, when is not a minimal -open set. If is any element of then by Theorem 5.3, . Therefore, by Theorem 3.11(3), we obtain that .
Proposition 5.5
Let be a finite -open set and is a minimal -open set in for each { } If for any then
Proof. For any with { } we have Also, we have . Therefore, for any nonempty subset of with { }
Proposition 5.6
Proof. Suppose that is a minimal -open set in and for { } Then we have for each { } It follows that any element of is not contained in This is a contradiction to the fact that This completes the proof.
Let be a finite -open set and for each { } is a minimal -open set in A. If for any then the class { } contains all minimal -open sets in
Combining Propositions 5.4, 5.5 and 5.6, we have the following theorem:
Theorem 5.7
Let be a nonempty finite -open set and a minimal -open set in for each { } Then the following three conditions are equivalent:
(1) The class { } contains all minimal -open sets in
(2) For any
(3) For any , where is semi-regular.
References
1. Levine, N., Semi-open sets and semi-continuity in topological spaces. Amer. Math.Monthly, 1963. 70(1): p. 36-41.
2. Kasahara, S., Operation-Compact Spaces. Math. Japon, 1979(24): p. 97-105.
3. Ogata, H., Operations on Topological Spaces and Associated Topology. Math. Japon, 1991. 36(1): p. 175-184.
4. Ahmad, B. and S. Hussain, Properties of γ-Operations on Topological Spaces. Aligarh Bull.Math, 2003. 1(22): p. 45-51.
5. Hussain, S. and B. Ahmad, On Minimal γ -Open Sets. Eur. J. Pure Appl. Maths, 2009. 3(2): p. 338-351.
6. Khalaf, A.B. and S.F. Namiq, New types of continuity and separation axiom based operation in topological spaces. M. Sc. Thesis, University of Sulaimani, 2011.
7. Khalaf, A.B. and S.F. Namiq, Lammda sub c-Open Sets and Lammda sub c-Separation Axioms in Topological Spaces. Journal of Advanced Studies in Topology, 2013. 4(1): p. 150-158.
8. Namiq, S.F., Lammda-R0 and Lammda-R1 Spaces. Journal of Garmyan University, 2014. 4(3).
9. F.Namiq, S., Contra 〖 ( ,γ)〗 ^*-Continuous Functions. Journal of Garmyan University, 2017.
10. B.Khalaf, A. and S.F. Namiq, Generalized Lammda-Closed Sets and (Lammda,Gamma)^*-Continuous Journal of Garmyan University, 2017: p. 2310-0087.
11. B.Khalaf, A. and S.F. Namiq, _βc-Connected Spaces and _βc-Components. Journal of Garmyan University, 2017.
12. Khalaf, A.B., H.M. Darwesh, and S.F. Namiq, _c-Connected Space Via _c-Open Sets. Journal of Garmyan University, 2017.
13. Namiq, S.F., _sc-open sets and topological properties. Journal of Garmyan University, 2014.
14. Namiq, S.F., _c-Separation Axioms Via _c-open sets. International Journal of Scientific & Engineering Research May-2017. 8.
15. Namiq, S.F., _sc-Connected Spaces Via _sc-Open Sets. Journal of Garmyan University, 2017.
16. Darwesh, H.M., S.F. Namiq, and W.K. Kadir, Maximal c-Open Sets. ICNS-2016, 2017.
17. Namiq, S.F., -Connected Spaces Via -Open Sets. Journal of Garmyan University, 2015.
18. Darwesh, H.M. and S.F. Namiq, On Minimal _βc-Open Sets Journal of Garmyan University, 2017.
19. N. Levine, Generalized closed sets in topological spaces, Rend. Circ. Mat. Palermo 19 (1970) 89–96.
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M
Test Booklet No. iz'uif=dk ÿ-
Paper-III LIFE SCIENCE
Time Allowed : 2½ Hours]
[Maximum Marks : 150
Signature and Name of Invigilator
1. (Signature) .........................................
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DEC - 34313
Number of Pages in this Booklet : 24
Number of Questions in this Booklet : 75
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1. Write your Seat No. and OMR Sheet No. in the space provided on the top of this page.
2. This paper consists of 75 objective type questions. Each question will carry two marks. All questions of Paper-III will be compulsory, covering entire syllabus (including all electives, without options).
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10.
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11. dWyD;qysVj fdaok ykWx Vscy okij.;kl ijokuxh ukghDEC - 34313/III
Life Science
Paper III
Time Allowed : 2½ Hours]
[Maximum Marks : 150
Note : This Paper contains Seventy Five (75) multiple choice questions, each question carrying Two (2) marks. Attempt All questions.
4. The immediate product of meiosis in pollen mother cells are :
(A) Male gametes
(B) Male gametophytes
(C) Microspores
(D) Pollen grains
5. 'Eugenol' the antiseptic active chemical compound which is used in dental surgery is obtained from :
(A) Steam distillation of flower buds of Eugenia caryophyllata
(B) Steam distillation of bark of Cinnamomum camphora
(C) Steam distillation of Cinnamomum zeylanica
(D) Steam distillation of Cinnamomum tamala
6. C 3 plant with a transpiration ratio of 500 have a water use efficiency of :
(A) 0.001
(B) 0.002 (C) 0.003
(D) 0.004
7. A vegetative shoot apex exposed to a certain condition will be converted to flowering shoot apex. Which of the following is most appropriate condition to achieve this ?
(A) Increase in the endogenous levels of GA
(B) Achievement of minimum apex size
(C) Low level of carbohydrate supply
(D) Exposure to low light conditions
8. Which of the following groups of species exhibits lack of interbreeding depression ?
(A) Self pollinated
(B) Apogamous and apomictic
(C) Cross pollinated
(D) Hybrids
9. The relationship expressed in the word pair Amoeba : Protozoologist also exists in :
(A) Filaria : Parasitologist
(B) Spider : Archaeologist
(C) Cobra : Ichthyologist
(D) Cockroach : Etymologist
DEC - 34313/III
11. Which four of the following six statements explain why erythrocytes have specialised for oxygen transport ?
(i) The erythrocytes contain haemoglobin
(ii) Erythrocytes lack a nucleus
(iii) Erythrocytes contain an abundance of carbonic anhydrase
(iv) The biconcave shape of the erythrocyte provides a large surface area for diffusion of gas molecules
(v) Erythrocytes can bind up to four oxygen molecules to each hemoglobin molecule
10. Presence of lung fish in Australia, Africa and South America is said to be a consequence of :
(vi) Erythrocytes contain mitochondria and thus generate ATP
12. In amphibians, due to injury lens is damaged, it is replaced by iris tissues through reprogramming of differentiation. It is referred to as :
(A) Dedifferentiation
(B) Dedifferentiation and transdifferentiation
(C) Re-commitment and differentiation
(D) Redifferentiation
13. In most of the vertebrates the eggs are asymmetrical, particularly in the distribution of cytoplasmic determinants. Upon fertilization, there is reorganization of cytoplasmic determinants. In tunicates, it is evident in the formation of :
(A) Diffusion of yolk
(B) Epibody
(C) Grey crescent
(D) Fate maps
DEC - 34313/III
14. A randomly interbreeding population of animals is known as :
(A) Panmictic
(B) Oligomictic
(C) Endemic
(D) Pandemic
15. The two greatest challenges a parasite faces are moving itself or its progeny from one host to another (transmission) and overcoming the host's defenses. Some parasites are transmitted from host parent to her offspring as in case of Wolbachia bacteria which are transmitted in insects' eggs. This is known as :
(A) Vertical transmission
(B) Horizontal transmission
(C) Virulence
(D) Parasite-host interactions
16. The association between a Crab living in molluscan shell and a sea anemone, in which the former carries the latter, is mutually beneficial. It is termed as :
(A) Phoretic commensalism
(B) Mutualism
(C) Protoco-operation
(D) Symbiosis
17. A genotype involving three alleles A1, A2, A3 at a locus with their corresponding gene frequencies p = 0.2, q = 0.5 and r = 0.3 and if the population attains the equilibrium stage, the genotype A, A and A3 A3 will be in the following proportion :
(A) 0.10, 0.06
(B) 0.04, 0.09
(C) 0.25, 0.15
(D) 0.06, 0.06
DEC - 34313/III
18. Point mutation induced in a codon UAC to UAU gives rise to which mutation ?
(A) Non-sense
(B) Missense
(C) Silent
(D) Frame shift
19. In Hardy-Weinburg law gene and gene frequencies remain constant from generation to generation. Gene frequency changes in randomly mating large population can be brought out by :
(A) Epistasis, imprinting
(B) Mutation, selection, migration
(C) Position effect varigation
(D) Bottlenecks, random genetic drift and epistasis
20. Exposure to UV light causes mutations and this may result in changes in phenotype or lethality. These mutations are due to :
(A) Formation thymine dimers
(B) Deamination of bases
(C) Tautomerization of bases
(D) Mispairing of bases
21. In yeast, anaphase promoting complex triggers the separation of sister chromatids during the change from metaphase of anaphase. The following are the possible mechanisms :
(i) Active securin cohesion factor ubiquitinates and destroys securin which in turn allows separase to cleave a subunit of the cohesion
(ii) Cohesion cleavage is facilitated by phosphorylation of the cohesion complex by cohesion activated kinase
(iii) Active anaphase promoting complex ubiquitinates and destroys securin which in turn allows separase to cleave a subunit of the cohesion complex
(iv) Cohesion cleavage is facilitated by phosphorylation of the cohesion complex by polokinase
Choose the correct
answer :
(A) (i) and (ii)
(B) (iii) and (iv)
(C) (i) and (iv)
(D) (ii) and (iii)
22. Nucleosomes are the basic units of chromatin. Although nearly every DNA sequence can, in principle, be folded into a nucleosome, the spacing of nucleosomes in the cell can be irregular. The reasons could be :
(i) Due to difficulty of bending the DNA double helix into two right turns around the outside of the histone octamer.
(ii) Adenine-thymine-rich sequences in the minor groove are easier to compress than GuanineCytosine rich sequences
(iii) Specific DNA sequences favour formation of nucleosomes
(iv) Histone modifications of the neighbouring nucleosomes influence the nucleosome formation
Choose the correct answer :
(A) (i) and (iv)
(B) (i) and (ii)
(C) (ii) and (iii)
(D) (ii) and (iv)
23. Taxol, has a profound effect on cytoskeleton of a cell and therefore taxol and other similar compounds are used as anti-cancer drugs. Taxol :
(A) binds to microtubule subunits and prevents their polymerization
(B) binds and stabilizes microtubules
(C) binds to actin filaments and depolymerizes microfilaments
(D) Indirectly infers with microtubule polymerization
24. In mammals and Drosophila sex determination and dosage compensation mechanisms differ. They involve :
(A) Presence of Y chromosome in males and inactivation of X chromosome in females (mammals) and X/A ratio and hyperactivation of single X in male in drosophila
(B) X/A ratio and X-inactivation (mammals) and Y chromosome inactivation of X (Drosophila)
(C) Presence of X and Y chromosomes in mammals and temperature mutant in Drosophila
(D) Single gene and hyperactivation in mammals and differential splicing and Xhyperactivation in Drosophila
[P.T.O.
25. From the solar energy falling on autotrophs, energy available to heterotrophs is about :
(A) 50%
(B) 10%
(C) 1%
(D) 0.1%
26. Heavy grazing in a grassland is indicated by :
(A) increased growth of palatable grasses
(B) decreased growth of fibrous legumes
(C) increased growth of fibrous legumes
(D) decreased growth of aromatic composites
27. A waterbody is said to be eutrophicated when it contains higher concentration of :
(A) Carbonates and silicates
(B) Carbonates and bicarbonates
(C) Nitrates and phosphates
(D) Nitrates and silicates
28. In a typical experiment, bacterial population was exposed to mutagenic dose of UV light. The exposed cells were grown for 24 hours in the nutritionally minimum medium containing penicillin. Subsequently, they were grown in nutritionally rich medium that lacked penicillin.
This procedure would yield :
(A) β-lactamase producers
(B) Auxotrophic mutants
(C) Phototrophic revertants
(D) Penicillin-resistant mutants
29. The medium containing only inorganic components will probably support the growth of :
(A) Auxotrophs
(B) Autotrophs
(C) Heterotrophs
(D) Myxotrophs
30. The production of ethanol is important to yeast cells growing under anaerobic condition. Which of the following statements best explains the reason ?
(A) Ethanol keeps the electron transport system functioning
(B) Yeast would be unable to activate the enzymes of the Kreb cycle without ethanol
(C) The process generates oxygen, which is required for glycolysis
(D) The process regenerates NAD, which is required for glycolysis
31. The term "protected fermentation" refers to a process which is not prone to contamination because :
(A) nutrients are not commonly attacked
(B) Fermentation product prevents contamination
(C) External addition of antibiotics checks contamination
(D) development of acidic pH during fermentation prevents contamination
32. The significance of class switching of immunoglobulin is that the B cell lineage can :
(A) recognize the same antigen but perform different effector functions
(B) perform the same effector function on different antigens
(C) convert itself to a T cell lineage
(D) convert itself to stem cells
33. The Lineweaver-Burk plot is used to graphically determine K m and V max from enzyme that obeys classic Michaelis-Menten kinetics. When V is the reaction velocity at substrate concentration S, the Y-axis experimental data in the Lineweaver-Burk plot are expressed as :
(A) V
(B) S
(C) 1 V
(D) 1 S
34. Allosteric enzymes regulate the formation of product by :
(A) Competitive inhibition
(B) Non-competitive inhibition
(C) Feedback inhibition
(D) Uncompetitive inhibition
35. An experiment was performed to examine the effect of various inhibitors on K m and V max . Experimental data obtained was used to construct Lineweaver-Burk plot. Which one of the following indicates the non-competitive inhibition ?
36. Which of the following DNA do not obey Chargaff's principle ?
(1) E.coli
(2) Drosophila melanogaster
(3) M13
(4) φ×174
Choose the correct alternative :
(A) (1) and (2)
(B) (1) and (4)
(C) (3) and (4)
(D) (2) and (3)
37. Sucrose does not occur in its anomeric form while its hydrolyzed products glucose and fructose have anomers. The reason is :
(A) C1 of glucose and C1 of fructose are bonded in glycosidic bond
(B) C1 of glucose and C2 of fructose are bonded in glycosidic bond
(C) Sucrose is not soluble in water
(D) Sucrose is polysaccharide
38. If one arginine has molecular weight of 174 Daltons, then what would be the molecular weight (in Daltons) of a circular polymer of 38 arginines ?
(A) 6612
(B) 5928
(C) 5946
(D) 6594
39. Lesch-Nyhan syndrome is a genetic defect in salvage pathway of nucleotide synthesis. Which nitrogen bases would show increased concentration in this disorder ?
(A) Hypoxanthine-adenine
(B) Hypoxanthine-guanine
(C) Hypoxanthine-cytosine
(D) Hypoxanthine-thymine
40. Interconversion of hexoses and pentoses is catalyzed by :
(A) Aldolase and dehydrogenase
(B) Transaldolase and transketolase
(C) Isomerase and epimerase
(D) Lyase and ligase
41. In order to fully oxidize a saturated fatty acid containing 13 carbon atoms, besides the enzymes of β-oxidation, one additional enzyme required is .......................... .
(A) Methyl malonyl-CoA mutase
(B) Acyl-CoA dehydrogenase
(C) Enoyl-CoA hydratase
(D) Carnitine acyl transferase
DEC - 34313/III
42. Which one of the following is a fundamental mode of energy exchange in biological system ?
(A) ATP—AMP cycle
(B) ADP—creatine phosphate cycle
(C) ATP—ADP cycle
(D) ADP—Arginine phosphate cycle
43. A laboratory technician was rushed to hospital, where she was found dead. The most dramatic symptom found was that her body was very hot indicating extremely high fever. You can learn that her laboratory has been working on metabolic inhibitors and she might have injested one. Which one of the following is the most likely culprit ?
(A) Barbiturate
(B) Dimercaprol
(C) Dinitrophenol
(D) Cyanide
44. If more is the negative standard, reduction potential of a redox pair, greater is the tendency to :
(A) Loose electron
(B) Gain electron
(C) Gain a proton
(D) Loose a proton
45. When chromosomes were treated with micrococcal nuclease, which digests DNA based on its tree accessibility, fragments of 166-200 bp were observed. This represented basic unit of chromatin, i.e. the nucleosome. Nucleosome leads to protection of DNA and modulating active and inactive components due to :
(A) Presence of histones H2A, H2B, H3, H4 and relevant histone modifying enzymes
(B) Presence of histones H2A, H, H2B, H2C and ribozymes
(C) Presence of chromodomains proteins and histones H1, H2A, H2B and H2C
(D) Presence of histones H1, H2, H3, H4, H5, H6 and ribozymes
46. Gene can be defined as a functional transcriptional unit. In Eukaryotes, this will consist of promoter, ribosome binding site, ORF and termination signals. Mutations or changes in the following can abolish gene expression.
(A) Promoter deletion, deletion of ribosome binding site
(B) Promoter duplication, missense mutation
(C) Additional enhancer and silencer mutation
(D) Missense mutation and sensitivity to transacting factor
47. DNA repair mechanisms involve removal of the damaged bases followed by repair synthesis, or containing DNA synthesis is by passing the damaged bases. Which of the following repair mechanisms invovle tolerating the damaged bases and continuing DNA synthesis ?
(A) Photoreactivation
(B) Nucleotide excision repair
(C) SOS repair
(D) Mismatch repair
48. The following is true for genetic code :
(A) it is triplet, commaless and generally universal
(B) it is triplet, punctuated and species specific
(C) it is degenerate, genus specific and different in plants and animals
(D) it shows hairpin loops and varies between prokaryotes and eukaryotes
DEC - 34313/III
49. A permanent alteration in the DNA of an organism is called ..................... .
(A) a mutation
(B) an allele
(C) a hereditary marker
(D) a replicon
50. Which of the following is not a part of prokaryotic transcription process ?
(A) Polyadenylation
(B) Polymerization of ribo- nucleotides
(C) Processing of transcript
(D) Involvement of sigma factor
51. Constitutive expression of Lac operon is due to mutation in :
(A) Lac Z
(B) Lac O
(C) Lac I
(D) Lac a
52. Which of the following antibiotics is not specific to prokaryotes ?
(A) Cycloheximide
(B) Chloramphenicol
(C) Ampicillin
(D) Streptomycin
53. The following is the silk fibroinspecific DNA agarose gel electrophoresis pattern obtained after digestion of DNA with Msp I and Hpa II. DNA from fibroin expressing (E) and non-expressing (S) glands were used.
— — —
Observations suggest that fibroin gene is :
(A) not methylated at CCGG in both S and E samples
(B) methylated at C residue(s) in "E" samples
(C) methylated at C residue(s) in "S" samples
(D) methylated at certain C residues in "S" samples
54. In case of Turner syndrome and Down's syndrome, chromosome balance is altered. The karyotype in each case can be determined by cytogenetic analysis. The distinguishing features of these genetic diseases are ................... .
(A) Monosomy of 'X' and trisomy of 21
(B) Balanced translocations
(C) Trisomy of 21 and monosomy of 22
(D) Ring chromosomes and double minutes
55. Cancer of the liver can be caused by ............................... .
(A) Virus alone
(B) Chemicals alone
(C) Both viruses and chemicals
(D) UV-irradiation
56. Retinoblastoma in children is caused by an antioncogene Rb. Which one of the following conditions leads to this cancer ?
(A) One of the two alleles (Rb) is non-functional due to mutation
(B) Both the Rb alleles are functional, but not expressed
(C) Both the Rb alleles are nonfunctional
(D) One allele is functional; however, gene product is not functional
57. A frameshift mutation occurs when :
(A) an adenine is inserted into DNA sequence of an organism
(B) a thymine replaces a guanine in the DNA sequence
(C) three new bases are inserted into DNA
(D) three bases are deleted from DNA
DEC - 34313/III
58. A lytic cycle is usually a result of infection by :
(A) a prophage
(B) a virulent phage
(C) a temperate phage
(D) an antiphage
59. Which of the following restriction enzyme sets forms an isoschizomer group ?
(A) MboI(↓GATC), Sau3AI(GATC), DpnI(↓GATC)
(B) MspI (↓CCGG), HpaII(↓CCGG), SmaI(C↓CCGGG)
(C) MspI(CCGG), HpaII(CCGG), Sau3AI(GATC)
(D) ApaI(GGGCCC),
SmaI(CCCGGG)
[P.T.O.
60. DNA foot-printing technique is useful in :
(A) DNA of genomic variations
(B) detection of predisposition of genetic diseases
(C) detection of protein-DNA interactions
(D) Prenatal sex determination
61. The differences between a genomic and cDNA library are :
(A) No intrinsic sequences and noncoding sequences in genomic library
(B) Genomic library will have truncated genes and no minisatellites
(C) Each cDNA library will have different set of genes and no introns
(D) Genomic library will have no representation of micro RNAs
62. In a standard experiment using tobacco pith explants grown on different ratios of auxin! cytokinin. What response will be expected with a high ratio of auxin : cytokinin ?
(A) development of undifferentiated callus
(B) formation of roots
(C) development of shoot buds
(D) induction of both shoot buds and roots
63. Embryonic stem cells are useful for regeneration therapy. These cells are also useful for transgenics. They are :
(A) Pluripotent
(B) Totipotent
(C) Unipotent
(D) Omnipotent
64. Which of the following is true for second messengers ?
(A) they are small extracellular signalling molecules
(B) they are small intracellular mediators of cell signalling
(C) they cannot participate in signal transduction
(D) they can be large proteins as well
65. Knowing that Na + /K + ATPase is the molecular basis of Na–K pump and that the pump extrudes Na + ions and brings in K + ions, which of the following cells/tissues are likely to have the highest level of Na + /K + ATPase activity in their membranes ?
(A) Neurons
(B) Myocytes
(C) RBC
(D) Kidney cells
66. Which of the following techniques has been used by Meselson-Stahl to prove that DNA replication occurs in semiconservative manner ?
(A) Density gradient centrifugation
(B) Differential centrifugation
(C) Ion exchange chromatography
(D) Electron microscopy
67. Which of the following compounds is used as internal standard in NMR spectroscopy ?
(A) Chloroform
(B) Dimethyl sulfoxide
(C) Trimethyl amine
(D) Tetramethyl silane
68. The patient is suffering from cancer and for the treatment of it, which radioisotope will be preferred ?
(A) 60 Co
(B) 55 Fe
(C) 32 P
(D) 35 S
69. Which of the following peptides can be quantified by using UVspectroscopy ?
(1) Ala—gly—leu—pro—phe
(2) Val—trp—leu—Ser—tyr
(3) Lys—arg—Val—his—gln
(4) Trp—Tyr—thr—gly—ileu
Choose the correct answer :
(A) (1), (2) and (4)
(B) (2) and (4)
(C) (1) and (4)
(D) (2), (3) and (4)
DEC - 34313/III
70. There is a need for accurate identification of gene sequence by using polymerase chain reaction. In this two sets of primers are used along with template, d NTPs and Taq polymerase. This process is called as :
(A) Nested PCR
(B) Multiplex PCR
(C) Degenerate PCR
(D) Inverse PCR
71. You have isolated and purified a protein and you want to determine the molecular weight. Which of the following techniques you will use ?
(1) Gel filtration
(2) Ion exchange chromatography
(3) Ultracentrifugation
(4) SDS-PAGE
(5) Affinity chromatography Choose the correct answer :
(A) (1), (3) and (5)
(B) (1), (3) and (4)
(C) (2), (3) and (5)
(D) (2), (4) and (5)
72. Thyroid hormone levels in body fluid can be estimated by which of the following methods ?
(1) Radioimmunoassay
(2) ELISA
(3) Agglutination inhibition assay
(4) HPLC
Choose the correct answer :
(A) (1) and (2)
(B) (1), (2) and (3)
(C) (1), (2) and (4)
(D) only (1)
73. Which of the following reagents are used in the peptide sequencing ?
(1) 1-Fluoro 2-4 dinitrobenzene
(2) Phenyl isothiocyanate
(3) Diisopropyl fluorophosphate
(4) Phenyl methyl sulfonyl fluoride
Choose the correct answer :
(A) (1) and (2)
(B) (3) and (4)
(C) (1) and (4)
(D) (2) and (3)
DEC - 34313/III
74. Validation of an analytical method is made by applying :
(A) Mean
(B) Standard deviation
(C) t-test
(D) Q-test
75. If the permeability of a neuron's membrane to K + is increased, what effect would this be most likely to have on the membrane potential assuming that the neuron is at rest ?
(A) hyperpolarization
(B) action potential would occur
(C) no change
(D) depolarization
ROUGH WORK
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Luke 7:1-10
The Man who Astonished God
We should not be surprised that during His time on earth, Jesus amazed many people. At the end of the talk we have been studying, Matthew records that "the crowds were amazed at His teaching (Matthew 7:28). When Jesus calmed a stormy Galilean Sea, the disciples "were amazed, and said 'what kind of man is this?" (Matthew 8:27). When He healed those who were deaf and mute "they were utterly astonished" (Mark 7:37). As we have seen, when Jesus taught is His hometown synagogue people "wondered at His gracious words" (Luke 4:22). The same was true when He taught at Capernaum (Mark 1:22) and in Jerusalem (John 7:14-15).
No matter how long the disciples had been with Jesus, He continued to amaze them. Even during the last week of His life, after the disciples had seen dozens, if not hundreds of miracles of all sorts, when He caused a fig tree to wither, "the disciples were amazed" (Matthew 21:20). Even those who only met Him once recognized the uniqueness of this man. When brought before Pilate, even "the governor was quite amazed" (Matthew 27:14). Throughout His life, by His actions and upon hearing His teaching, people were continually amazed.
This story contains some of the same basic events that have marked the narrative of Jesus in Galilee thus far. Jesus received word that someone was desperately ill. He went and healed them. The routine nature of the miracle can, perhaps, numb us to God's infinite grace manifested in a specific time and place. But consider the greatness of this particular miracle. Jesus never touched the person he healed. He never spoke to him. He never even saw him. No greater miracle of healing is recorded in Scripture.
Moreover, consider the genuine grace by which Jesus agreed to heal the centurion's slave. Jesus did not question why the centurion had taken so long to inform Him of the dire need of his slave. Nor did Jesus question why the request was not made in person. Neither did He say that His miracles were reserved for only those of the Jewish faith. Also, Jesus did not criticize the argument of the Jewish leaders that this man somehow deserved to have his slave healed. And Jesus was not put off by the fact that the man was a Roman soldier. Jesus continued to amaze.
What may perhaps surprise us is that there were two occasions on which Jesus, Himself, was amazed. The first was when He was teaching in Nazareth, later in His public ministry. Despite His teaching and the many miracles He had performed, those in Nazareth refused to accept Him as the Messiah. Jesus "wondered at their unbelief" (Mark 6:6).
The second instance of Jesus being amazed occurs in this account in Luke. In this case Jesus will be amazed not at the lack of faith, but at the expression of faith itself. It must be quite a thing to have such faith that it would astonish God.
The Setting
"When He had completed all His discourse in the hearing of the people, He went to Capernaum" (v. 1). There are three elements to the transition provided by Luke. The first is chronological. The 'when' is not specific, though the context would suggest that it was not long after Jesus finished his teaching. The second transition is geographical. Luke transitions from Jesus' teaching to this account by following Him to Capernaum. The third element of the transition is topical. After providing us with a narrative of Jesus teaching, concluding with the illustration of the wise man who "laid a foundation on the rock" (Luke 6:48), Luke presents us with an account of Jesus meeting such a man.
Capernaum was the adopted center of activity for Jesus in the region of Galilee and provides the setting for the story. The name of the city means "city of Nahum" though whether it received this title as a result of the recognition of the prophet Nahum is uncertain.
Capernaum was located along the northern coast of the Sea of Galilee and was reputed in historical sources to be the most significant town in the region. However, despite the presence and activity of Jesus there, it was not a place known for its acceptance of the Messiah's message. In fact Jesus will later chasten the city for its arrogance, "And you, Capernaum, will not be exalted to heaven, will you? You will be brought down to Hades!" (Luke 10:15). This prophecy was fulfilled in history as the city was destroyed by the Persians.
At the time of Jesus, though, it was worthy of the attention of a royal official in the service of Herod Antipas and a detachment of soldiers from Rome.
The Centurion
A centurion, as one might expect, was in charge of about one hundred men. A full strength Roman legion was comprised of 6,000 soldiers, divided into ten groups of 600 each called cohorts. Therefore each legion had sixty centurions who reported to a person called a chiliarch (Acts 22:26). The rank beneath a centurion was a decurion, a person in command of about ten soldiers.
Centurions appear in Scripture on several occasions.
There is the centurion at the cross who recognized Jesus as the Son of God, "Now the centurion, and those who were with him keeping guard over Jesus, when they saw the earthquake and the things that were happening, became very frightened and said, 'Truly this was the Son of God!'" (Matthew 27:54).
Later in Acts 10 we meet Cornelius, " 1 a centurion of what was called the Italian cohort, 2 a devout man and one who feared God with all his household" (Acts 10:1-2).
And even Paul received fair treatment from the centurion Julius, " 1 they proceeded to deliver Paul and some other prisoners to a centurion of the Augustan cohort named Julius . . .and Julius treated Paul with consideration and allowed him to go to his friends and receive care" (Acts 27:1, 3).
While we do not know with certainty, our knowledge of the period would suggest that this particular centurion was probably not a Roman, but rather a local who had risen up through the ranks. He and his men kept general order, enforced Roman and local laws, and made sure taxes were collected. No doubt this man had proved himself responsible and loyal. He was skilled enough as a soldier to be thought capable of training others. He commanded respect from his men and general fear from the local population.
Characteristics Worth Emulating
Love
The centurion loved his slave. Slave, doulos, was a common term in the ancient world for a person who was completely in the possession of another. He had been purchased and could be sold. He had no legal standing or rights. His very life was legally in the hands of his master. He was property in the most basic sense. Aristotle described a slave as a living tool. Varro said the only difference between a slave, a beast and a cart was that the slave could be taught to speak.
Yet look at the terms used by the centurion to describe his slave. His slave "was highly regarded by him" (v. 2). The word not only means "highly valued" in the sense of a financial investment, but also 'honored' in the sense of a special guest at a feast (Luke 14:8). Paul used the same term to describe Epaphroditus and others to be honored in the church, "receive him then in the Lord with all joy, and hold men like him in high regard" (Philippians 2:29). Peter used the word to describe Christ "And coming to Him as to a living stone which has been rejected by men, but is choice and precious in the sight of God" (1 Peter 2:4).
More than simply a highly esteemed person, the centurion loved his slave like a son. That is indicated from the term used when the centurion confidently tells Jesus "just say the word, and my servant will be healed" (v. 7). Here the term used for servant means 'boy' or 'son'. This simple slave was as dear to the centurion as his own flesh and blood. And this slave "was sick and about to die" (v. 2). Surprisingly the physician Luke is not specific about the disease, but Matthew tells us that the wretched man was "lying paralyzed at home, fearfully tormented" (Matthew 8:6). The centurion did not simply allow his slave to die in peace. He actively sought help.
There is another way in which this centurion was loving. He loved the Jewish people. The Jewish leaders themselves testified to this when they came to Jesus. "He loves our nation" (v. 5) they argued, as they persuaded Jesus to come and heal the man's slave. This is extraordinary. First, that a Roman centurion, a gentile, would have Jewish friends is unusual. More than that, these Jewish friends were not unworthy social outcasts, but the very leaders of their religious community. Finally, that the relationship would be so strong that these religious leaders would do the centurion a favor by pleading with another on his behalf is almost impossible to believe.
The centurion had "heard about Jesus" (v.3). What had he heard exactly? Clearly he had heard enough about Jesus performing miracles of healing to believe that He could help his slave. Jesus had healed lepers and driven out demons. But as we shall see, this man believed more than that Jesus was simply a magically-gifted healer. He believed Jesus had authority, but more on that later.
Generosity
The Jewish leaders had their reasons for supporting the cause of the centurion, and these reason were a reflection of the love the centurion had for the Jews. The man deserved the attention of Jesus, the Jewish leaders argued because "it was he who built us our synagogue" (v. 5). The words used indicate that the man may have been solely responsible for the financing to the building. Whether this was literally true or not, it was the way the Jewish leaders of Capernaum represented him to Jesus.
Precise numbers are impossible to calculate, since there were many different grades of centurion and it is not possible to know where this particular centurion fit into the Roman army, but a typical foot soldier at this time received about 225 denarii as an annual salary. Depending on position, a centurion might earn
5000-7500 denarii a year. Some of this might be paid in food and clothing, but still this was a significant amount, and it seems reasonable to consider that the centurion was capable of financing the building of a synagogue.
It is also interesting to consider that Capernaum may have had only the one synagogue. If so, that means that Jesus performed his miracles driving out demons in the synagogue built as a result of the generosity of this very centurion.
Humility
The Jewish leaders had presented the case of the centurion because "He is worthy for You to grant this to him" (v. 4). The works-righteousness requirements of their faith had been met by the building of the synagogue. As a result, this man deserved the attention of a rabbi with the power to heal his slave. Such fallacious thinking was common among the Jewish leaders. And though the centurion thought well enough of Judaism, he had no such opinion of himself.
The centurion had not thought himself even worthy of making the request to Jesus personally. Instead, "he sent some Jewish elders asking Him to come and save the life of his slave" (v. 3). That this was not a matter of simple arrogance in delegating a task to another is revealed in that as Jesus was on His way to the centurion's house, "the centurion sent friends, saying to Him, 'Lord, do not trouble Yourself further, for I am not worthy for You to come under my roof'" (v. 6).
"Humility is the chief Christian virtue, for without it we persist in all our faults" La Rochefoucauld. It is a particular sign of the indwelling of the Holy Spirit, and a characteristic to be assiduously cultivated by believers.
Hearing that Jesus had agreed to his request, the man recognized his own unworthiness even further. Like Peter after the great catch of fish (Luke 5:8), the centurion could not abide the presence of one so holy. The conflict within him was significant. He loved his slave and wanted Jesus to heal him, but he knew he was unworthy of such grace and mercy. He would not consider having this rabbi, generous as He might be, violate His own customs by entering the house of a Gentile. What an excellent picture of humility!
He did not want Jesus to be bothered with making the trip all the way to his home. The word means to be annoyed, and again speaks to the centurion's concern for another. He was perhaps a God-fearer, that is a Gentile who studied and reflected on the truths of Judaism without converting. He had an imperfect understanding of the truth, but he was willing and eager to learn. That he would not even approach Jesus was a sign that he understood his own personal unworthiness.
Faith
He did not have Jesus enter his home. He did not ask for Jesus to perform some sign or wonder to validate His ministry. Instead, recognizing that Jesus had authority, he had his friends tell Jesus "just say the word, and my servant will be healed" (v. 7). To demonstrate his understanding of the power of Jesus, the centurion illustrated what he meant. "For I also am a man placed under authority, with soldiers under me; and I say to this one, 'Go!' and he goes, and to another, 'Come!' and he comes, and to my slave, 'Do this!' and he does it" (v. 8). As a soldier in the Roman army, the man well understood the chain of command. As a slave owner, he knew the power of life and death he held over those he owned.
Clearly he recognized that Jesus had the same authority over disease. The centurion believed that Jesus could simply speak and it would be so. Whether he understood all the implications of his belief, clearly his faith was unhindered by any doubt. He simply believed that if Jesus said something, it would be so.
This was a faith that astonished God. "When Jesus heard this, He marveled at him" (v. 9). And not content to let the moment pass without turning it into a teaching moment, Jesus "turned and said to the crowd that was following Him, 'I say to you, not even in Israel have I found such great faith'" (v. 9). That Jesus was as good as His word is indicated by the fact that "when those who had been sent returned to the house, they found the slave in good health" (v. 10). There are three three points to be made here.
First, this is a fine illustration of the humanity of Jesus. Jesus had a real human body. He became hungry, thirsty, and tired. Jesus had real human emotions. He grew angry, and He wept. Jesus had a real human intellect. He increased in knowledge, and there things He did not know. He could be astonished.
Second, this is a wonderful commendation for the faith of the centurion. The centurion had genuine love, remarkable generosity, true humility, and extraordinary faith.
Finally, this is a scathing indictment of the lack of faith among the Jews. They focused on their selfrighteousness and entitlement as children of Abraham. The Jewish people had every opportunity (summed up in centuries of prophecy of the coming Messiah), but their hard-heartedness would not allow them to humble themselves as the centurion did.
Take Aways
Think of one area in which you might seek God's help this week as you grow in your faith.
Love for others, even those who might to the world appear unworthy
Generosity with the resources God has given us, especially in the cause of another
True humility that understands who we are and Who God is
Faith that takes God at His word, never doubting and never requiring proof
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S T . A NN & THE H OLY T RINITY C HURCH
P RO -C ATHEDRAL of the Episcopal Diocese of Long Island CLINTON & MONTAGUE STREETS | BROOKLYN HEIGHTS
H OLY E UCHARIST
Fifth Sunday after the Epiphany February 6, 2022 10:30 AM
W ELCOME
TO S T . A NN & THE H OLY T RINITY C HURCH P RO -C ATHEDRAL of the Episcopal Diocese of Long Island
St. Ann & the Holy Trinity Episcopal Church is a house of worship and community commons in Brooklyn Heights. We are so glad you have come to worship with us. As you know, the ongoing pandemic makes this an extraordinary time that requires us to take precautions to protect ourselves and others. We ask while you are here to please follow all of these health protocols:
* Pre-registration is no longer required.
* Those who have recently tested positive for Covid-19, have Covid-like symptoms, or been in contact with someone who has them, may not attend in-person worship.
* Masks over both nose and mouth continue to be required on church grounds.
* We now sing while wearing our masks!
St. Ann's is a friendly and welcoming church that is deeply committed to sharing God's love, caring for creation, and serving our neighbors in need. We remain steadfast in our prayers for the safety of our community, our nation and the world and that all God's people can live in freedom and peace.
Thank you for joining us!
Celebrant The Rev. Canon John Denaro
Preacher The Rev. Craig D. Townsend
Lay Eucharistic Minister Scott Parker
First Reader Debbie Mumm
Second Reader Scott Parker
Intercessor Carol Francscani
Usher Suzan Frazier
Director of Music Gregory D'Agostino
Cantor Richard Holmes
Altar Guild Carol Francescani, Claudia Barber,
Livestream Director Eleana Donaldson
Debbie Mumm
See note on page 19
THE LITURGY OF THE WORD
The people stand and sing
OPENING ACCLAMATION
Celebrant Blessed be God: most holy, glorious, and undivided Trinity. People And blessed be God’s reign, now and for ever. Amen.
COLLECT FOR PURITY
Celebrant Almighty God, to you all hearts are open, all desires known, and from you no secrets are hid: Cleanse the thoughts of our hearts by the inspiration of your Holy Spirit that we may perfectly love you, and worthily magnify your holy Name; through Christ our Lord.
People Amen .
KYRIE ELEISON
COLLECT OF THE DAY
Celebrant God be with you.
People And also with you.
Celebrant Let us pray.
Set us free, O God, from the bondage of our sins, and give us the liberty of that abundant life which you have made known to us in your Son our Savior Jesus Christ; who lives and reigns with you, in the unity of the Holy Spirit, one God, now and for ever. Amen.
The People sit
THE FIRST LESSON
Isaiah 6:1-8
A Reading from the Book of the Prophet Isaiah.
In the year that King Uzziah died, I saw the Lord sitting on a throne, high and lofty; and the hem of his robe filled the temple. Seraphs were in attendance above him; each had six wings: with two they covered their faces, and with two they covered their feet, and with two they flew. And one called to another and said:
"Holy, holy, holy is the Lord of hosts; the whole earth is full of his glory."
The pivots on the thresholds shook at the voices of those who called, and the house filled with smoke. And I said: "Woe is me! I am lost, for I am a man of unclean lips, and I live among a people of unclean lips; yet my eyes have seen the King, the Lord of hosts!"
Then one of the seraphs flew to me, holding a live coal that had been taken from blotted out." Then I heard the voice of the Lord saying, "Whom shall I send, and the altar with a pair of tongs. The seraph touched my mouth with it and said: "Now that this has touched your lips, your guilt has departed and your sin is who will go for us?" And I said, "Here am I; send me!"
Reader Hear what the Spirit is saying to the Church.
People Thanks be to God.
PSALM 138 said by all
Confitebor tibi
I will give thanks to you, O Lord, with my whole heart; * before the gods I will sing your praise.
I will bow down toward your holy temple and praise your Name, *
because of your love and faithfulness;
For you have glorified your Name * and your word above all things.
When I called, you answered me; * you increased my strength within me.
All the kings of the earth will praise you, O Lord, * they have heard the words of your mouth.
They will sing of the ways of the Lord, * that great is the glory of the Lord.
Though the Lord be high, he cares for the lowly; * he perceives the haughty from afar.
Though I walk in the midst of trouble, you keep me safe; * you stretch forth your hand against the fury of my enemies; your right hand shall save me.
The Lord will make good his purpose for me; * O Lord, your love endures for ever; do not abandon the works of your hands.
THE SECOND LESSON
1 Corinthians 15:1-11
A Reading from Paul's First Letter to the Corinthians.
I would remind you, brothers and sisters, of the good news that I proclaimed to you, which you in turn received, in which also you stand, through which also you are being saved, if you hold firmly to the message that I proclaimed to you--unless you have come to believe in vain.
For I handed on to you as of first importance what I in turn had received: that Christ died for our sins in accordance with the scriptures, and that he was buried, and that he was raised on the third day in accordance with the scriptures, and that he appeared to Cephas, then to the twelve. Then he appeared to more than five hundred brothers and sisters at one time, most of whom are still alive, though some have died. Then he appeared to James, then to all the apostles. Last of all, as to one untimely born, he appeared also to me. For I am the least of the apostles, unfit to be called an apostle, because I persecuted the church of God. But by the grace of God I am what I am, and his grace toward me has not been in vain. On the contrary, I worked harder than any of them--though it was not I, but the grace of God that is with me. Whether then it was I or they, so we proclaim and so you have come to believe.
Reader Hear what the Spirit is saying to the Church.
People Thanks be to God.
The People stand
THE HOLY GOSPEL
Luke 5:1-11
Gospeller The Holy Gospel of our Lord Jesus Christ according to Luke.
People Glory to you, Lord Christ.
Once while Jesus was standing beside the lake of Gennesaret, and the crowd was pressing in on him to hear the word of God, he saw two boats there at the shore of the lake; the fishermen had gone out of them and were washing their nets.
He got into one of the boats, the one belonging to Simon, and asked him to put out a little way from the shore.
Then he sat down and taught the crowds from the boat. When he had finished speaking, he said to Simon, "Put out into the deep water and let down your nets for a catch." Simon answered, "Master, we have worked all night long but have caught nothing. Yet if you say so, I will let down the nets." When they had done this, they caught so many fish that their nets were beginning to break. So they signaled their partners in the other boat to come and help them. And they came and filled both boats, so that they began to sink. But when Simon Peter saw it, he fell down at Jesus' knees, saying, "Go away from me, Lord, for I am a sinful man!" For he and all who were with him were amazed at the catch of fish that they had taken; and so also were James and John, sons of Zebedee, who were partners with Simon. Then Jesus said to Simon, "Do not be afraid; from now on you will be catching people." When they had brought their boats to shore, they left everything and followed him.
Gospeller The Gospel of the Lord.
People Praise to you, Lord Christ.
SERMON
The People stand
THE NICENE CREED
We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is, seen and unseen. We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, of one Being with the Father.
The Rev. Craig D. Townsend
Through him all things were made.
For us and for our salvation he came down from heaven:
by the power of the Holy Spirit he became incarnate from the Virgin Mary,
and was made man.
For our sake he was crucified under Pontius Pilate;
he suffered death and was buried.
On the third day he rose again in accordance with the Scriptures;
he ascended into heaven and is seated at the right hand of the Father.
He will come again in glory to judge the living and the dead, and his kingdom will have no end.
We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son.
With the Father and the Son he is worshiped and glorified.
He has spoken through the Prophets.
We believe in one holy catholic and apostolic Church.
We acknowledge one baptism for the forgiveness of sins.
We look for the resurrection of the dead, and the life of the world to come. Amen.
PRAYERS OF THE PEOPLE
BCP, Form II
Over the course of each silence, the People offer their own prayers, either silently or aloud.
Intercessor
I ask your prayers for God's people throughout the world; for out bishops, Lawrence, William, Geralyn and Daniel for this gathering; and for all ministers and people. Pray for the Church. Silence.
I ask your prayers for peace; for goodwill among nations; and for the well-being of all people. Pray for justice and peace. Silence .
I ask your prayers for the poor, the sick, the hungry, the oppressed, and those in prison. Pray for those in any need or trouble. Silence.
I ask your prayers for all who seek God, or a deeper knowledge of God. Pray that they may find and be found by God. Silence.
I ask your prayers for the people of this church and community. Silence.
I ask prayers for the departed. Pray for those who have died. Silence. Praise God for those in every generation in whom Christ has been honored. May we also have grace to glorify Christ in our day. Silence.
Celebrant
Almighty and eternal God, ruler of all things in heaven and earth: Mercifully accept the prayers of your people, and strengthen us to do your will; through Jesus Christ our Lord. Amen.
THE CONFESSION
Celebrant Let us confess our sins against God and our neighbor.
All
Most merciful God, we confess that we have sinned against you in thought, word, and deed, by what we have done, and by what we have left undone. We have not loved you with our whole heart; we have not loved our neighbors as ourselves. We are truly sorry and we humbly repent. For the sake of your Son Jesus Christ, have mercy on us and forgive us; that we may delight in your will, and walk in your ways, to the glory of your
Name. Amen.
Celebrant
Almighty God have mercy on you, forgive you all your sins through our Lord Jesus Christ, strengthen you in all goodness, and by the power of the Holy Spirit keep you in eternal life. Amen.
THE PEACE
Celebrant The peace of Christ be always with you.
People And also with you.
WORD OF WELCOME
OFFERTORY SENTENCE
MUSIC MEDITATION
THE HOLY COMMUNION
THE GREAT THANKSGIVING
Eucharistic Prayer B
Celebrant The Lord be with you.
People And also with you.
Celebrant Lift up your hearts.
People We lift them to the Lord.
Celebrant Let us give thanks to the Lord our God.
People It is right to give God thanks and praise.
The Celebrant continues
It is right, and a good and joyful thing, always and everywhere to give thanks to you, Father Almighty, Creator of heaven and earth.
Because in the mystery of the Word made flesh, you have caused a new light to shine in our hearts, to give the knowledge of your glory in the face of your Son Jesus Christ our Lord.
Therefore we praise you, joining our voices with Angels and Archangels and with all the company of heaven, who for ever sing this hymn to proclaim the glory of your Name:
SANCTUS & BENEDICTUS
The Celebrant continues
We give thanks to you, O God, for the goodness and love which you have made known to us in creation; in the calling of Israel to be your people; in your Word spoken through the prophets; and above all in the Word made flesh, Jesus, your Son. For in these last days you sent him to be incarnate from the Virgin Mary, to be the Savior and Redeemer of the world. In him, you have delivered us from evil, and made us worthy to stand before you. In him, you have brought us out of error into truth, out of sin into righteousness, out of death into life.
On the night before he died for us, our Lord Jesus Christ took bread; and when he had given thanks to you, he broke it, and gave it to his disciples, and said, "Take, eat: This is my Body, which is given for you. Do this for the remembrance of me."
After supper he took the cup of wine; and when he had given thanks, he gave it to them, and said, "Drink this, all of you: This is my Blood of the new Covenant, which is shed for you and for many for the forgiveness of sins. Whenever you drink it, do this for the remembrance of me."
Therefore, according to his command, O Father, Celebrant and People
We remember Christ's death,
We proclaim his resurrection, We await his coming in glory.
The Celebrant continues
And we offer our sacrifice of praise and thanksgiving to you, O Lord of all; presenting to you, from your creation, this bread and this wine.
We pray you, gracious God, to send your Holy Spirit upon these gifts that they may be the Sacrament of the Body of Christ and his Blood of the new Covenant. Unite us to your Son in his sacrifice, that we may be acceptable through him, being sanctified by the Holy Spirit. In the fullness of time, put all things in subjection under your Christ, and bring us to that heavenly country where, with Mary the Godbearer and all your saints, we may enter the everlasting heritage of your sons and daughters; through Jesus Christ our Lord, the firstborn of all creation, the head of the Church, and the author of our salvation.
By him, and with him, and in him, in the unity of the Holy Spirit all honor and glory is yours, Almighty Father, now and for ever. AMEN.
The Celebrant continues As our Savior Christ has taught us, we now sing,
THE LORD'S PRAYER
THE BREAKING OF THE BREAD
Celebrant Alleluia. Christ our Passover is sacrificed for us; People Therefore let us keep the feast. Alleluia.
INVITATION TO COMMUNION
Celebrant
The gifts of God for the People of God. Take them in remembrance that Christ died for you, and feed on him in your hearts by faith, with thanksgiving.
All are welcome to receive Holy Communion. Our common practice is to receive the bread in outstretched hands. In light of the Covid-19 pandemic, Communion is offered in one kind (bread only). Please indicate to the Celebrant if you would like gluten-free bread. If you do not wish to receive Communion, you are invited to come forward and cross your arms over your chest and a priest will offer you a blessing.
POST-COMMUNION PRAYER
Celebrant Let us pray.
People
Almighty and everliving God, we thank you for feeding us with the spiritual food of the most precious Body and Blood of your Son our Savior Jesus Christ; and for assuring us in these holy mysteries that we are living members of the Body of your Son, and heirs of your eternal kingdom. And now, O God, send us out to do the work you have given us to do, to love and serve you as faithful witnesses of Christ our Lord. To him, to you, and to the Holy Spirit, be honor and glory, now and for ever. Amen.
BLESSING & DISMISSAL
Celebrant
May Christ, the Son of God, be manifest in you, that your lives may be a light to the world; and the blessing of God Almighty, the Father, the Son, and the Holy Spirit, be among you and remain with you always.
People Amen.
Celebrant Let us go forth in the name of Christ.
People Thanks be to God.
RECESSIONAL HYMN
T he Hymnal 1982, #362
POSTLUDE Allegro maestoso in D minor
Bergt
Note on the Prelude from the Director of Music
We begin February with a prelude by the African-American composer, Florence Price (1887-1953). In recent years there has justly been a resurgence of interest in her music - Price was a trail-blazer as the first African-American woman to be recognized as a symphonic composer and the first to have a composition played by a major orchestra (her Symphony in E minor was premiered by the Chicago Symphony in 1933). She attended the New England Conservatory of Music but had to pretend she was Mexican in order to do so. Price served as head of the music department at Clark University in Massachusetts. Her sizable compositional output - 4 symphonies; concertos; choral and chamber music; solo works for piano, organ, and violin - reflects her American and Southern roots; she was a devout Christian and frequently used the music of the African-American church as a source of inspiration. –Gregory D'Agostino, DMA
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The Rt. Rev. Lawrence C. Provenzano — Bishop of Long Island The Rev. Canon John E. Denaro — Rector The Rev. Katherine A. Salisbury — Associate Rector The Rev. Craig D. Townsend — Associate for Faith Formation The Rev. Marie A. Tatro — Priest Associate Gregory D'Agostino — Organist and Director of Music Lauren Bakoian — Facilities Manager Terry Randazzo — Parish Administrator James White — Sexton
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Article: Balanced Scorecard - How to Integrate Six Sigma ... DOI: 10.1108/10878570510594442 Corpus ID: 44007215. How the balanced scorecard complements the McKinsey 7‐S model @inproceedings{Kaplan2005HowTB, title={How the balanced scorecard complements the McKinsey 7‐S model}, author={Robert Steven Kaplan}, year={2005} }
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This book explains how an organization can measure and manage performance with the Balanced Scorecard methodology. It provides extensive background on performance management and the Balanced Scorecard, and focuses on guiding a team through the step-by-step development and ongoing implementation of a Balanced Scorecard system. Corporations, public sector agencies, and not for profit organizations have all reaped success from the Balanced Scorecard. This book supplies detailed implementation advice that is readily applied to any and all of these organization types. Additionally, it will benefit organizations at any stage of Balanced Scorecard development. Regardless of whether you are just contemplating a Balanced Scorecard, require assistance in linking their current Scorecard to management processes, or need a review of their past measurement efforts, Balanced Scorecard Step by Step provides detailed advice and proven solutions.
Provides assistance to businesses in moving from ideas to action, achieving long-term goals, and obtaining feedback about strategy
reveals how the goal-setting system of Objectives and Key Results (OKRs) has helped tech giants from Intel to Google achieve explosive growth—and how it can help any organization thrive. In the fall of 1999, John Doerr met with the founders of a start-up whom he'd just given $12.5 million, the biggest investment of his career. Larry Page and Sergey Brin had amazing technology, entrepreneurial energy, and sky-high ambitions, but no real business plan. For Google to change the world (or even to survive), Page and Brin had to learn how to make tough choices on priorities while keeping their team on track. They'd have to know when to pull the plug on losing propositions, to fail fast. And they needed timely, relevant data to track their progress—to measure what mattered. Doerr taught them about a proven approach to operating excellence: Objectives and Key Results. He had first discovered OKRs in the 1970s as an engineer at Intel, where the legendary Andy Grove ("the greatest manager of his or any era") drove the best-run company Doerr had ever seen. Later, as a venture capitalist, Doerr shared Grove's brainchild with more than fifty companies. Wherever the process was faithfully practiced, it worked. In this goal-setting system, objectives define what we seek to achieve; key results are how those top-priority goals will be attained with specific, measurable actions within a set time frame. Everyone's goals, from entry level to CEO, are transparent to the entire organization. The benefits are profound. OKRs surface an organization's most important work. They focus effort and foster coordination. They keep employees on track. They link objectives across silos to unify and strengthen the entire company. Along the way, OKRs enhance workplace satisfaction and boost retention. In Measure What Matters, Doerr shares a broad range of first-person, behind-the-scenes case studies, with narrators including Bono and Bill Gates, to demonstrate the focus, agility, and explosive growth that OKRs have spurred at so many great organizations. This book will help a new generation of leaders capture the same magic.
Seminar paper from the year 2015 in the subject Business economics Miscellaneous, grade: 80.00/100.00, University of Strathclyde (Strathclyde Business School), course: Performance Measurement & Management, language: English, abstract: In 2001, CNN euphorically described Zara as "a Spanish success story" (CNN, 2001). Thirteen years later, Tobias Buck of The Financial Times called the Spanish fashion brand "one of the most striking corporate success stories of recent years" (Buck, 2014). Having started as a small fashion store in A Coruña, Zara is now the flagship brand of Inditex, the biggest fashion retailer in the world. However, Zara's success is not cast in stone. Simon Irvin of Credit Suisse, criticising Inditex's recently lacklustre financial performance, noted that business models were not likely to remain brilliant forever, and that Zara's parent company were no exception to the rule (Buck, 2014). Having said that, numerous attempts have been made by competitors to copy Zara's successful business model and thereby eliminate the firm's competitive advantage. For instance, C&A purposefully hired away Inditex managers (The
Economist, 2012), while Mango outpaced Zara in terms of sales in Spain, Zara's home market, by copying Zara's approach to manufacture the majority of its garments in nearby countries, as well as its product offering (Baigorri, 2013). In light of these developments, it is essential for Zara to measure its performance timely and carefully, and identify ways in which the firm's future performance, against the background of its business model, may be improved. The Balanced Scorecard (BSC) is the right tool to achieve this, as it translates a firm's strategic objectives and competitive demands into a coherent set of performance measures (Kaplan & Norton, 1993a). In particular, the BSC complements financial performance measures, usually reflecting past performance, with operational measures in the areas of customer satisfaction, internal processes, and a firm's innovation and improvement activities, all of which can be said to be drivers of future performance (Kaplan & Norton, 1992).
This book provides an easy-to-follow roadmap for successfully implementing the Balanced Scorecard methodology in small- and mediumsized companies. Building on the success of the first edition, the Second Edition includes new cases based on the author's experience implementing the balanced scorecard at government and nonprofit agencies. It is a must-read for any organization interested in achieving breakthrough results.
The best plan is useless without effective execution The future of business has become so unpredictable that yourfive-year plan may be irrelevant next week. To succeed in themodern market, you must constantly assess your progress and adapton the fly. Agility, flexibility, continual learning, andadaptation are the new rules of business success. A differentiatingstrategy is crucial, but it will only lead to competitive advantageif you execute it flawlessly. You'll succeed only if you have theright insight for strategic planning and the agility to executeyour plan. Balanced Scorecard Evolution: A Dynamic Approach to StrategyExecution provides the latest theory and practice fromstrategic planning, change management, and strategy execution toensure your business is flexible, future ready, and primed forexceptional execution. Author Paul R. Niven guides you through thenew principles of The Balanced Scorecard and shows you how to applythem to your planning and strategy execution endeavors. Read case studies that illustrate the theory and practice ofstrategic agility and execution Learn how to create the objectives, measures, targets, andstrategic initiatives that can make your plan a reality Use the latest change management techniques to boost strategyexecution success Gain the knowledge and tools you need to face your challengeshead-on Motivate your employees to change behaviors toward planaccommodation Making a plan isn't enough. You must actually take steps toimplement your plan, and this requires excellent leadership skills.Change can be hard, and your organization may be resistant.Balanced Scorecard Evolution: A Dynamic Approach to StrategyExecution provides everything you need to make thingshappen.
Copyright : www.northandovercitizen.com
Online Library How The Balanced Scorecard Complements The Mckinsey 7 S Model
In Control in an Age of Empowerment, Robert Simons explains how to give employees the freedom to innovate while protecting your firm from loose cannons. Using powerful examples, Simons shows how to apply four powerful management "levers" to balance autonomy with control: Traditional diagnostic control systems, Belief systems, Boundary systems, and Interactive control systems. Used in concert, these four levers give you the control you need--without sacrificing the creative thinking your company can't do without. Since 1922, Harvard Business Review has been a leading source of breakthrough ideas in management practice. The Harvard Business Review Classics series now offers you the opportunity to make these seminal pieces a part of your permanent management library. Each highly readable volume contains a groundbreaking idea that continues to shape best practices and inspire countless managers around the world.
The Balanced Scorecard is the leading methodology for implementingperformance management systems and improving efficiency. Focusingdirectly on the public and not-for-profit sectors, this book helpsthese organizations overcome the unique challenges they face whenimplementing a Balanced Scorecard. Guides government and nonprofit organizations through theimplementation of a performance management system using theBalanced Scorecard. Authors bring a wealth of implementation knowledge andexperience to this book, leading to handson, practical guidanceand tips to that ensure success. Identifies and tackles head-on the serious obstacles unique tothe world of government and nonprofits in implementing the balancedscorecard methodology. Includes action plans to walk the reader through specificimplementation challenges.
The Balanced Scorecard translates a company's vision and strategy into a coherent set of performance measures. The four perspectives of the scorecard--financial measures, customer knowledge, internal business processes, and learning and growth--offer a balance between short-term and long-term objectives, between outcomes desired and performance drivers of those outcomes, and between hard objective measures and softer, more subjective measures. In the first part, Kaplan and Norton provide the theoretical foundations for the Balanced Scorecard; in the second part, they describe the steps organizations must take to build their own Scorecards; and, finally, they discuss how the Balanced Scorecard can be used as a driver of change.
Copyright code : afbe5b650f4b995f2221bb0ffcfc4278
|
BRING YOUR OWN DEVICE (BYOD) VS. CHOOSE YOUR OWN DEVICE (CYOD)
Dr., Ştefan IOVAN, Universitatea de Vest, Timişoara, ROMÂNIA Dr., Cristian IVĂNUŞ, Academia de Studii Economice, Bucureşti, ROMÂNIA
ABSTRACT: Any company with growth ambitions must have a formal and well-defined mobile strategy, or it could lose, thanks to this, the promised economic recovery. BYOD (Bring Your Own Device) refers to the fact that members of company ecosystems (management, employees, partners, etc.) will increasingly use their own personal mobile devices (smartphone, tablet etc.) in the future to work from anywhere and anytime. The phenomenon has been for several years now words that define concepts of deploying hyperbolised businesses around the world as essential concepts of the future. An all-new model in companies around the world is CYOD (Choose Your Own Device), where companies allow employees to choose the devices they want to use in the office, which is becoming more and more popular as an alternative to the BYOD phenomenon in the business environment. Following the accommodation of companies and employees with the BYOD program, the emergence of the new CYOD program proves the need and also the efficiency of the transformation and development of BYOD into a new form of use of devices in the workplace. The paper aims to present several security aspects of BYOD technology, with examples for Europe and Romania, and the ever-faster shift to CYOD technology
KEY WORDS: BYOD, CYOD, security, personal information, company information.
1. INTRODUCTION
The smartphone generation means that business in most sectors needs to offer mobile services to customers. Adopting bring your own device (BYOD) also implies that mobile strategies must cover both internal and customer activities.
The BYOD phenomenon, through which companies allow employees to bring their own electronic office devices to access company data at any time, from anywhere, through any device, has spread rapidly in recent years, including in Romania.
Benefits of BYOD are obvious: Most employees have their own electronic devices computers, tablets or smartphones, are familiar with them and can easily use them for professional purposes, and can handle tasks directly without losing time various problems arising from the lack of a specific application, software program or facilities on the service computer [1].
An all-new model in CYOD companies, where companies allow employees to choose the devices they want to use in the office, is becoming more and more popular as an alternative to the BYOD business phenomenon.
At the same time, there are some shortcomings of the BYOD concept, most of them on security. For example, company data and confidential information leave every day the headquarters and organization network, being exposed to a number of risks that also have some shortcomings in the BYOD concept, most of them on security. For example, company data and confidential information leave every day the headquarters and network of the organization, being exposed to a number of risks that make headaches for the IT department.
Approximately 15% of employees believe that their responsibility to protect company data stored on personal devices is minimal, if not nonexistent.
2. BYOD POLICY, A THREAT TO ITS SECURITY
Most of the companies consider the employees' tendency to bring their own device (BYOD) a growing threat to business. However, the percentage of companies taking steps to minimize this risk is relatively low, according to the study [2]. In this study, interviews with representatives of several companies from 24 countries were analyzed.
The most worried about this phenomenon are respondents in Japan, where 93% of companies have said that BYOD policy poses a threat to their business. Companies in North America (69%) and Western Europe (62%) also voiced concern about this policy.
Eastern European companies are less concerned about this issue, with only 54% saying that BYOD policy can be a threat to the IT security of the firm.
At the same time, most companies do not intend to introduce prohibitive measures regarding the use of personal devices at work. On the contrary, about 33% of respondents said they intended to encourage the use of Smartphone and personal tablets at work, while another 37% said they did not consider bans to prevent employees from using their own devices.
However, the percentage of companies that intend to limit the use of personal devices for service-related activities is rising: the number of respondents who said they intend to impose restrictions increased by 4%, from 15% in 2012 to 19% in 2013. The percentage of companies that intend to impose stricter rules against the use of personal devices at work has increased from 2% to 11%.
It is easy to understand why companies are increasingly worried about the threats posed by the use of mobile devices: the survey also shows that improper use of these devices is a frequent cause of IT security incidents, resulting in the loss of important data of the company.
Almost 17% (11 percentage points more than in 2012) among respondents said their businesses have been leaking confidential data because of the use of email, text messaging, and other channels available on smart phones and tablets.
However, a relatively small number of companies are now adopting specialized software to protect themselves against such threats. Approximately 39% of companies use antivirus solutions to integrate protect and manage mobile devices on the company's network, and only 28% of them use mobilespecific solutions.
As BYOD becomes a widespread policy and the number of incidents involving mobile devices increases, ensuring centralized management of these devices and maintaining safety become important and relevant needs. It is just as important that the solutions that perform these functions are easy to use, manage and integrate into the company's network.
A mobile agent is installed on the device to provide advanced protection against antimalware threats, while Mobile Device Management (MDM) ensures secure mobile device configuration, making it easy to use.
Company data can be isolated and encrypted in a file on your personal device and, thanks to Remote Find, Lock and Wipe, these data can be deleted if the device is lost or stolen.
Using a single centralized administration console makes all company devices, including BYOD mobile devices, manageable from a single integrated security platform.
2.1. BYOD in Europe and concerns about IT security
Oracle has conducted a study involving 700 companies across Europe on the degree of acceptance of personal digital devices in business operations. The study [3] shows that there is still resistance to the adoption of BYOD practices in many regions, primarily driven by concerns about business information security on devices, user identity, and application security.
Instead, those organizations that have been opening to Bring Your Own Device practice benefit greatly from the benefits of this
policy, such as reduced IT costs and increased productivity, compared to companies in the denial phase.
Currently available solutions provide a high level of IT security control over personal or corporate devices, providing a simplified interface. Companies have the flexibility to share their personal data from employees' personal devices, using filters that isolate corporate data from personal data, making it easier for organizations to access and manage their applications.
To describe the attitudes of corporations across Europe to Bring Your Own Device, Oracle launched the study [3]. The report highlights some extremely interesting figures:
- Nearly half (44%) of European companies reject BYOD or would only allow this in exceptional circumstances;
- Another 29% permits these practices only to senior employees;
- Nearly a quarter of companies (22%) completely prohibit the storage of company information on a personal device, while 20% have no rules at all;
- More than half do not include smart phones in BYOD programs;
- Information security is the greatest concern; 45% of respondents are very worried about the security of devices; 53% of application security and 63% of data security.
The study [3] also shows that many of these concerns are related to the lack of data on the capabilities offered by modern security solutions:
- 37% have never heard of containerization (isolation of personal data from those of the company);
- Nearly 1/3 do not use any form of mobile device management (Mobile Device Management);
- 22% have never heard of Mobile Application Management.
Those who have adopted BYOD practices have a unified perspective, perceiving both tablets and smart phones as part of BYOD. They have successfully solved many of the safety issues and are prepared for a higher level of change in future BYOD versions. Respondents can be included in two categories: Those adopting BYOD ("Pioneers") practices and those who avoid those ("Skeptics").
- 83% of pioneers manage both smart phones and tablets as personal devices. On the other hand, 73% of skeptics do not include smart phones in BYOD practices. 2/3 of the skeptics are concerned about safety, as opposed to only 6% of pioneers.
- The pioneers are ready for change: almost two-thirds recognize the need to accept new personal devices and their complexity, while only 11% of skeptics share this vision.
- 86% of skeptics are deeply concerned about data and information security, compared with only 21% of pioneers.
- 65% of skeptics either do not manage data and information safety or only allow encryption on electronic devices, only 7% for pioneers.
- Pioneers understand the technology available: almost 80% of them have a form of mobile application coordination, compared with 12% of skeptics.
Variations in European countries and industries:
Countries:
o The Nordic countries and the Germany / Switzerland tandem (DCH) are leading countries in terms of general maturity in the BYOD approach;
o The Iberian Peninsula and Italy see most of BYOD's challenges. These countries also had the highest proportion of skeptics.
Industries:
o The communications industry was a general leader.
o At the other end of the top, the financial services industry.
o An interesting aspect is that the media industry has the largest proportion of pioneers and the lowest financial services industry; the public sector has the highest number of skeptics, and the communications industry has the least.
BYOD practices - developed in the right direction - can bring real business benefits; from increased employee productivity to reduced IT and hardware costs, and increased ability to attract young talent.
2.2. BYOD in the big and very big companies from România
CIO Council Romania, made the first edition of the study on the application of the BYOD concept in large and very large companies in Romania. It is a practical, user-friendly study that addresses the application or nonapplication of the IT concept for business efficiency, as well as the intention to apply it in the immediate future [4].
The study was based on the interpretation of the opinions, recommendations and forecasts of over 100 IT managers from large and very large companies operating in Romania. Also, the main reasons for applying / not applying the concept were studied.
The study [4] proves to be extremely important at a time when the extension of BYOD practices is slowed down by IT security concerns. This is the main reason why we wanted to find through this study [4] what is the de facto situation in Romania in large and very large enterprises, which generates the largest volumes of business in our country.
The results of the study [4] show that these concepts are still at the beginning of the road in Romania, at least in terms of large and very large enterprises. The adoption rate of concepts is not yet significant (as opposed to, for example, the concept of Cloud Computing) and the policies and procedures for this adoption are not clearly defined on a large scale.
Key values found in the study [4] and related to mobility:
- Only 50% of companies believe that the implementation of mobility is economically justified;
- 60% of companies are addressing ad hoc mobility without having a clear strategy or policy;
- In 20% of companies, the policies in force are not being respected, with tactile acceptance of personal devices.
Key values discovered by the study and related to BYOD:
- 38% of respondents say there is a policy in their company towards BYOD.
- Attitude towards BYOD varies significantly depending on the device used.
- BYOD's silent adoption is a significant phenomenon within companies, with rates ranging from 11% for smart phones to 21% for tablets.
The purpose of the study was not to advise companies on adopting these concepts in Romania. As such, it can only be a simple radiography that highlights the good and bad situations already existing [5]. Any future editions of this study will have the gift of highlighting the true market trend, at least from large and very large businesses.
3. CYOD, THE ALTERNATIVE OF BYOD PHENOMENY
Securing a BYOD device fleet becomes extremely difficult, especially in the context of a variety of devices on the market, and many employees store personal and professional personal data regardless of whether the device is personal or belong to the employer.
Thus, a new alternative BYOD concept now proposes to reduce the risks. CYOD (Chooses Your Own Device) allows employees the freedom to choose to work on a particular device they know and control, with the company providing a pre-approved list of devices from which employees can choose.
The security benefits of the CYOD program are immense, as each security device can be preinstalled with a security solution and predefined firewall and network settings of a dedicated administrator. The administration of a small number of different specifications allows record keeping to be used and ensures that employees comply with data and information management requirements.
The disadvantage of those companies that offer employees the freedom of the BYOD program is the relative lack of luxury of choice. A company must, however, provide a wide range of devices as part of the CYOD program to be attractive to employees and to acquire their interest.
The CYOD phenomenon begins to gain ground in front of BYOD, for obvious reasons. The influx of personal devices operated by office workers has in recent years meant significant savings for hardware
acquisition, but has also led to the emergence of difficult to predict.
Following the accommodation of companies and employees with the BYOD program, the emergence of the new CYOD program proves the need and also the efficiency of the transformation and development of BYOD into a new form of use of devices in the workplace.
Regardless of the employee-embedded enterprise model, security of data and information is essential, and security companies offer a full range of business security solutions.
There are a number of simple steps that any company, regardless of business or size, has to follow to ensure infrastructure and data security.
Choosing the strategy and products that support employees' productivity. It is recommended that you thoroughly test your company's devices from an employee perspective and define the best work pattern for your organization, whether BYOD or CYOD. At the same time, each member of the IT department responsible for mobile devices must have a clear understanding of the issues they are facing.
Regardless of the model implemented in the company - BYOD or CYOD, a top-of-therange product has to be implemented to prevent data loss. This product needs to be well integrated with existing mobile products and current strategy. Selected products must be performance-packed and designed to prevent confusion of company's IP, organization, data, and confidential information. By default, company data will not be copied to the currently available small devices or any other portable and smart gadgets that employees might have in the future.
Every company has to compose the ideal team for a particular project.
Mobility projects involve IT, legal, human resources, security, and business operations. All of these groups have an interest in the productivity and security of the workspace and mobile devices used in the company. Each will have a specific specification and will have to resort to concessions to keep the project in the market dynamics of mobile devices. Partnerships with specialized security companies that have a vast array of resources can result in team alignment and problemsolving for mobile devices and data security, no matter who owns these devices in the business environment.
4. CONCLUSIONS
It is good to see that some organizations in Europe adopt BYOD to take advantage of these benefits, but the report revealed a real cause for concern in the skepticism of many other companies in accepting that BYOD is developing around them in their immediate vicinity and in adopt this change for its own benefit.
The security issue seems to have pushed many organizations in Europe into denial and resistance against BYOD. However, technologies such as containerization, end-toend encryption, and application and device management, supplemented by uniform company data storage [6], can secure BYOD practices.
It is vital for parties involved in the BYOD ecosystem to clarify this situation within their own organizations. This should lead to a major increase in the number of European organizations benefiting from the benefits of BYOD practices.
Mobility brings more benefits to companies with formalized mobile strategies, revealing a huge gap in mobile business results. It was found last year that mobility generated revenue for 75% of companies with the most comprehensive strategies, compared with 30% of companies with less developed strategies.
Mobility success includes business strategy, business applications, and official measurement of results, in addition to infrastructure engineering. A fully planned approach and coherence can make mobility a real business factor, while an incoherent program creates the risk of a tactical value rather than a strategic solution for the organization [7].
Approximately 60% of organizations have a mobile strategy, but there are different levels of maturity. Most mobile mature companies, known as mobile companies, account for 21%
of the total. Another 40% of companies are committed to this, with strategies and policies, but without pro-active government. 8% of companies are "mobile-minded," with packages of mobile initiatives and policies, but without a global strategy or government. 11% of organizations do not have any mobile strategy set up, nor do politicians or governments in this regard.
5. REFERENCES
[1] Ştefan Iovan, Cristian Ivănuş: The Mobility – A Trend in Multinational Companies, Târgu Jiu: "Academica Brâncuşi" Publisher, Annals of the "Constantin Brâncuşi" University, Engineering Series, Issue 3/2017, (CONFERENG 2017), pag. 175 – 180, (2017);
[2] * * * : Global Corporate IT Security Risks 2013,
http://www.kaspersky.ro/out?key=C4ErGhwe JK9Hw
[3] * * * : Oracle BYOD Index Report, imap://firstname.lastname@example.org:143/fetch>UI D>.INBOX>281261 [4] * * * :
http://www.agora.ro/sites/default/files/revised _brosura_BYOD_v2_mai.pdf
[5] Ştefan Iovan, Cristian Ivănuş: European Economic Growth through the Mobilization of Innovation and Entrepreneurship, Proc. of 16 th European Conference (E_COMM_LINE 2015), Bucureşti, România, (2015);
[6] Cristian Ivănuş, Ştefan Iovan: Providing Products and Services in Cloud Computing Technology, Proc. of 14 th European Conference (E_COMM_LINE 2013), Bucureşti, România, (2013);
[7] Ştefan Iovan, Cristian Ivănuş: Software applications for mobile and mobile protection, Târgu Jiu: "Academica Brâncuşi" Publisher, Annals of the "Constantin Brâncuşi" University, Fiability & Durability Series, Issue: 1(21), (SYMECH 2018), pag. 263 - 268, (2018);
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Accelerating Innovation Through Analogy Mining
Tom Hope 1 , Joel Chan 2 , Aniket Kittur 2 and Dafna Shahaf 1
1
The Hebrew University of Jerusalem
2
Carnegie Mellon University firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com
Abstract
The availability of large idea repositories (e.g., patents) could significantly accelerate innovation and discovery by providing people inspiration from solutions to analogous problems. However, finding useful analogies in these large, messy, realworld repositories remains a persistent challenge for both humans and computers. Previous approaches include costly hand-created databases that do not scale, or machine-learning similarity metrics that struggle to account for structural similarity, which is central to analogy. In this paper 1 we explore the viability and value of learning simple structural representations. Our approach combines crowdsourcing and recurrent neural networks to extract purpose and mechanism vector representations from product descriptions. We demonstrate that these learned vectors allow us to find analogies with higher precision and recall than traditional methods. In an ideation experiment, analogies retrieved by our models significantly increased people's likelihood of generating creative ideas.
1 Introduction
The ability to find useful analogies is critical to driving innovation in a variety of domains. Many important discoveries in science were driven by analogies: for example, an analogy between bacteria and slot machines helped Salvador Luria advance the theory of bacterial mutation. An analogy to a bicycle allowed the Wright brothers to design a steerable aircraft. Whether architecture, design, technology, art, or mathematics, the ability to find and apply patterns from other domains is fundamental to human achievement [Hesse, 1966; Markman and Loewenstein, 2010; Dahl and Moreau, 2002].
The explosion of available online data represents an unprecedented opportunity to find new analogies and accelerate human progress across domains. The US Patent database has full text for more than 9 million patents. Millions of scientific papers and legal cases are searchable on the web. Websites like InnoCentive 2 , Quirky 3 and OpenIDEO 4 contain millions of ideas, problems and solutions.
1
See full version [Hope et al.
, 2017]
2
innocentive.com
3
4
quirky.com OpenIDEO.com
We believe these datasets form a treasure trove of analogies that can accelerate problem solving, innovation and discovery. In a striking recent example, a car mechanic invented a simple device to ease difficult childbirths by drawing an analogy to extracting a cork from a wine bottle, which he discovered in a YouTube video. We imagine a future in which people could search through data based on deep analogical similarity rather than simple keywords; lawyers or legal scholars could find legal precedents sharing similar systems of relations to a contemporary case; and product or service designers could mine myriad potential solutions to their problem.
However, sifting through massive data sources to find analogies poses a serious challenge for both humans and machines. In humans, memory retrieval is highly sensitive to surface similarity, favoring near, within-domain analogs that share object attributes over far, structurally similar analogs that share object relations [Gentner et al., 1985; Holyoak and Thagard, 1996; Gentner et al., 1993; Gick and Holyoak, 1983]. Analogical processing also incurs a heavy cognitive load, taxing working memory when even a few relations are required to be processed [Halford et al., 2005].
Finding analogies is challenging for machines as well, as it is based on having an understanding of the deep relational similarity between two entities that may be very different in terms of surface attributes [Gentner, 1983]. Recent advances in data mining and information retrieval use vector representations in order to calculate similarity measures [Mikolov et al., 2013; Deerwester et al., 1990; Blei et al., 2003]. These approaches excel at detecting surface similarity, but are often unable to detect similarity between documents whose word distributions are disparate. The problem is especially acute when the source and target domains are different (e.g., bacterial mutation and slot machines).
In this paper, we are interested in automatically discovering analogies in large, unstructured data sets. In particular, we focus on a corpus of product innovations. There are two insights behind our approach that we believe may make this problem tractable despite its longstanding status as a "holy grail" in both cognitive science and AI. First, rather than trying to solve the problem of fully structured analogical reasoning, we instead explore the idea that we can use weaker structural representations that can be learned and reasoned with at scale (in other words, there is a tradeoff between the ease of extraction of a structure and its expressivity). Specifically, we investigate the weaker structural representation of an idea's
purpose and mechanism as a way to find useful analogies. The second insight is that advances in crowdsourcing have made it possible to harvest rich signals of analogical structure that can help machine learning models learn in ways that would not be possible with existing datasets alone.
Our approach uses the behavioral traces of crowd workers searching for analogies and identifying the purpose and mechanisms of ideas, then developing machine learning models and similarity metrics suited for analogy mining. We demonstrate that our methods allow us to find analogies with higher precision and recall than traditional informationretrieval methods. In a user study, we show that we can generate far analogies that "inspire" participants to generate more innovative ideas than alternative baselines, increasing the relative proportion of positively-rated ideas by at least 25%.
2 Learning a Representation for Analogies
2.1 Motivation
Much work in computation analogy has focused on fully structured data, often with logic-based representations. For example [Falkenhainer et al., 1989],
```
CAUSE(GREATER-THAN[TEMPERATURE(coffee), TEMPERATURE (ice-cube)], FLOW(coffee, ice-cube, heat, bar))
```
These representations, while very expressive, are notoriously difficult to obtain. In this section, our goal is to come up with a weaker representation that can be learned, while still being expressive enough to allow analogical mining.
Analogies between product ideas are intricately related to their purpose and mechanism. Informally, a product's purpose is "what it does, what it is used for", and a product's mechanism is "how it does it, how it works". The importance of purpose and mechanism is theoretically rooted in early cognitive psychology work on schema induction, which define the core components of a schema as a goal and proposed solution to it [Gick and Holyoak, 1983]. More recently, the practical value of defining a problem schema as a purpose and mechanism has been demonstrated to have empirical benefits in finding and using analogies to augment idea generation [Yu et al., 2016b; 2016a; 2014b; 2014a].
Separating an idea into purpose and mechanisms enables core analogical innovation processes. Assume (for the moment) that we have for each product i two vectors, pi and mi, representing the product's purpose and mechanism, respectively. Using this representation, we can apply rich queries to our corpus of products, such as:
Same purpose, different mechanism. Given the corpus of all products P, a product i with (normalized) purpose and mechanism vectors pi, mi, and distance metrics dp(·, ·), dm(·, ·) between purpose and mechanism vectors (respectively), solve:
argmin ˜i dp(pi, p˜ i ) s.t. dm(mi, m˜ i ) ≥ threshold, (1) Same Mechanism, different purpose (re-purposing). Solve:
argmin
˜i
d
m
(m
i
,m
˜
i
) s.t. d
p
(p
i
,p
˜
i
) ≥ threshold (2)
Importantly, our dataset of product descriptions contains noisy texts, often written informally by non-professional people. In these texts product descriptions are often lacking detail or are ill-defined. To automatically describe a product in
terms of a richer, formal functional model such as in engineering research [Hirtz et al., 2002; Ookubo et al., 2007] would require an inordinate amount of meticulous data annotation and collection by professional engineers.
2.2 Data
Innovation Corpus. We test our approach with a corpus of product descriptions from Quirky.com, an online crowdsourced product innovation website. Quirky is representative of the kinds of datasets we are interested in because it is large (at the time of writing, it hosts upwards of 10,000 product ideas, of which our corpus included 8500), unstructured (ideas are described in natural language), and covers a variety of domains which makes cross-domain analogies possible.
Collecting Purpose and Mechanism Data. We needed to collect analogy-specific data to train our model. We aim to develop a lightweight task that avoids complex structured representations, so we can scale up the collection of annotations through the use of crowdsourcing [Kittur et al., 2008]. We show Amazon Mechanical Turk (AMT) crowd workers a product description, asking them to annotate the parts of the text related to the purposes and mechanisms of the product. We frame the problem in simple terms, guiding workers to look for chunks of text talking about "what the product does, what it is good for" (purposes), and "how it works, what are its components" (mechanisms). See Figure 1.
2.3 Method
Extracting Purpose and Mechanism vectors
In this section, we describe our approach to learning to extract purpose and mechanism product representations. We begin with a set of N training product texts XN = {x1, x2, . . . , xN }, where each xi is a variable-length sequence of tokens (x 1 i , x 2 i , . . . , x T i ) . For each document x i , we collect a set of K purpose annotations and K mechanism annotations, where K is the number of workers who annotate each document. We define the purpose annotation to be a binary vector ˜pik = (˜ p 1 ik , ˜ p 2 ik , . . . , ˜ p T ik ) of the same length as xi, with ˜ p j ik = 1 if token x j i is annotated as purpose by annotator k, ˜ p j ik = 0 if not. In the same way, we denote the mechanism annotation with ˜mik = ( ˜ m 1 ik , ˜ m 2 ik , . . . , ˜ m T ik ) .
We apply a simple and soft aggregation of the K annotations. In simple terms, we look at all words that were annotated, and take a TF-IDF-weighted average of their GloVe [Pennington et al., 2014] word vectors (pre-trained on Common Crawl web data), resulting in weighted-average vectors
pi ∈ R 300 and mi ∈ R 300 for purpose and mechanism annotations, respectively. We consider pi, mi to be target vectors we aim to predict for unseen texts. By concatenating all annotations and weighting by TF-IDF, we naturally assign higher impact to words considered important by all annotators with respect to purpose/mechanism.
Learning purpose and mechanism
We now have N training product texts XN = {x1, x2, . . . , xN }, and N corresponding target tuples YN = {(p1, m1), (p2, m2), . . . , (pN , mN )}. We represent each xi with its pre-trained GloVe vectors, wi. Our goal is to learn a function f (wi) that predicts (pi, mi). To this end, we model f (·) with a Recurrent Neural Network as that takes as input the variable-length sequence wi, processes it with a bidirectional RNN (BiRNN) to form a shared document representation. Following this layer, more layers are added to extract two separate product and mechanism representations ˆpi, ˆmi, finally predicting the targets (pi, mi) in a multipleoutput regression setting. We qualitatively examine what our representations learned by finding words in our vocabulary that are close to the purpose/mechanism representations (see [Hope et al., 2017] for details). For example, for a yogurt making machine, we obtain "pump, steel, electric" for mechanism and "food, produce, concentrate" for purpose.
3 Evaluation: Analogies
We begin with evaluating the predicted ˆpi, ˆmi in the context of their ability to capture distances that reflect analogies, which is the primary focus of this paper. To do so, we first create a dataset of analogies and non-analogies.
3.1 Collecting Analogies via Crowdsourcing
We crowdsourced analogy finding within a set of about 8000 Quirky products. AMT crowd workers used our search interface to collect analogies for about 200 seed documents. Median completion time for each seed was 7 minutes. Pairs that were tagged as matches became positive examples in our analogy dataset. Borrowing from information retrieval, we assume that people read the search results sequentially, and treat the implicitly rejected documents (i.e., documents that were not matches, despite appearing before matches) as negatives. To further increase the chance that the document has actually been read, we restrict ourselves to the top-5 results.
Results. We rank all pairs in the test data (N = 2500, with training done on about 5500 products) based on their distances, according to various metrics including our own, and measure precision and recall @ K results. Across all levels of K – top-%1, %5, %10, %15, %20, %25 – our approach outperformed the baselines. As an example, our approach is able to obtain precision @ top-%1 of 0.74, while standard approaches such as TF-IDF, average of GloVe word vectors with TF-IDF weighting, LDA and LSA and yield only 0.63, 0.61, 0.43, 0.41, respectively. See [Hope et al., 2017] for full results. Note that a considerable portion of test product pairs were tagged by workers as analogies despite having only surface similarity, likely due to the strong tendency towards surface features in analogical retrieval [Gentner et al., 1993]. This created mislabeled positive examples that favor the surface-based baselines.
4 Evaluation: Ideation by analogy
Since a major application of the enhanced search and retrieval capabilities of analogy is enhanced creativity, we now evaluate the usefulness of our algorithms. We examine the degree to which our model's retrieved output improves people's ability to generate creative ideas, compared to other methods. To do so we use a standard ideation task in which participants redesign an existing product [Ullman, 2002], and are given inspirations to help them – either from our approach, a TF-IDF baseline, or a random baseline. See Figure 2 for an example task given to crowdworkers (here, a cell phone charger case). The middle part shows the top 3 inspirations per condition.
Our assumption is that our approach will help users explore more diverse parts of the design space (that are still relevant). We hypothesize that our approach will lead to better results than the TF-IDF baseline (highly relevant but non-diverse) and the random baseline (highly diverse but low relevance).
4.1 Experiment Design
We recruited 38 AMT workers to redesign an existing product, a common creative task in design firms [Ullman, 2002]. To ensure robustness of effects, the experiment included 12 different "seed" products. Participants were paid $1.5. To maximize statistical power, we utilized a within-subjects design with a single manipulated factor, inspiration type:
* ANALOGY: For each seed product we find 12 inspiration products with similar purposes but far mechanism. We use a combination of clustering by the purpose metric dp(·, ·) and diversification by mechanism metric dm(·, ·) with a MAX-MIN diversification approach [Ravi et al., 1994].
* BASELINE: SURFACE: participants receive product inspirations retrieved using TF-IDF, by finding the top 12 products similar to the seed. This baseline is meant to simulate current search engines.
* BASELINE: RANDOM: participants receive 12 product inspirations randomly sampled from our product corpus.
Participants completed the redesign task under each of the 3 inspiration type conditions. The order of conditions was counterbalanced to prevent order effects. To ensure unbiased permutations, we used the Fisher-Yates shuffle.
Since prior work has shown that people benefit more from analogies if they receive them after ideation has begun [Tseng et al., 2008], the ideation task proceeded in two phases: 1) generating ideas unassisted for one minute, then 2) receiving 12 inspirations and generating more ideas for 6 minutes. The inspirations were laid out in four pages, 3 inspirations per page, and the users could freely browse them.
Figure 2 provides an overview of the experiment and an excerpt from the data. The task was to redesign a cell phone charger case. The SURFACE baseline retrieves products that are very phone-related. In contrast, our algorithm retrieves diverse results such as a human pulley-powered electricity generator suit. The bottom of the figure shows ideas generated by users in each condition. Interestingly, the user exposed to our approach suggested a case that generates power using movement, potentially inspired by the suit.
4.2 Results
Measures. Following [Reinig et al., 2007], we measured creative output as the rate at which a participant generates good
Figure 2: Overview and excerpts of the ideation experiment. Top: Seed product. Workers were asked to solve the same problem in a different way. Middle: Top 3 inspirations for each of the conditions. Note that the TF-IDF baseline returns results from the same domain, while our method returns a broader range of products. Bottom: Ideas generated by users exposed to the different conditions.
ideas. We recruited five graduate students to judge each idea generated by our participants as good or not. Our definition of "good" follows the standard definition of creativity in the literature as a combination of novelty, quality, and feasibility [Runco and Jaeger, 2012]. Each judge was instructed to judge an idea as good if it satisfied all of the following criteria: 1) it uses a different mechanism/technology than the original product (novelty), 2) it proposes a mechanism/technology that would achieve the same purpose as the original product (quality), and 3) could be implemented using existing technology and does not defy physics (feasibility).
Agreement between the judges was substantial (Fleiss kappa 0.51), lending our measure of creativity acceptable inter-rater reliability. The final measure of whether an idea was good or not was computed by thresholding the number of votes, so that good = 1 if at least k judges rated it as good. We report results for both liberal and strict settings k = 2, 3.
Evaluation. In summary, across both liberal and strict settings, our approach was able to generate a considerably large relative positive effect leading to better ideas, both in terms of the absolute number of positively-rated ideas and in terms of proportions. For k = 2 , the proportion of good ideas in our condition was 46% ( N = 105 ). Next was the random baseline with 37% ( 49 ), and finally the TF-IDF baseline achieved 30% (N= 54 ). These results are significant by a χ 2 proportion test ( p ≤ . 01 ). For k = 3 (majority vote), the proportion of good ideas in our condition was 38% ( N = 118 ), the random baseline had 22% ( 68 ), and the TF-IDF baseline achieved 21% (N= 63 ), with p < . 01 .
In addition, to model confounding factors, we used a generalized linear mixed model with a fixed effect of inspiration condition, and random effects of participant and seed (to model within-participant and within-seed dependencies between ideas). Here too, our method led to a significantly higher probability for good ideas. For k = 2, pr(Good) = 0.71, 95% confidence interval = [0.48, 0.87] in our condition. TF-IDF had pr(Good) = 0.28 [0.16, 0.44], and random had pr(Good) = 0.27 [0.16, 0.41]. For k = 3, we had pr(Good) = 0.56, [0.36, 0.75]. TF-IDF had pr(Good) = 0.16 [0.08, 0.27], and random had pr(Good) = 0.14 [0.08, 0.24], B = −1.94, p < .01 vs. TF-IDF, and B = −2.05, p < .01 vs. random.
5 Discussion and Conclusion
In this paper, we sought to develop a scalable approach to finding analogies in large, messy, real-world datasets. We explored the potential of learning and leveraging a weak structural representation (i.e., purpose and mechanism vectors) for product descriptions. We use crowdsourcing to obtain purpose/mechanism annotations, and use an RNN to learn purpose and mechanism vectors for each product. We demonstrate that these learned vectors allow us to find analogies with higher precision than traditional information-retrieval similarity metrics like TF-IDF, LSA, GloVe and LDA.
Our ideation study further illustrates the effectiveness of our approach: participants had a higher likelihood of generating good ideas for the redesign ideation task when they received inspirations from our method, compared to a traditional (TF-IDF) baseline or random sampling approach. From a psychological perspective, the benefits of our inspirations are likely due to our approach's superior ability to sample diverse yet still structurally similar inspirations, since diversity is a known robust booster for creative ability [Chan and Schunn, 2015]. The TF-IDF approach yielded inspirations likely to be relevant but also homogeneous, while the random approach yields diversity but not relevance.
While moving to a "weak" structural representation based on purpose and mechanism significantly increased the feasibility of analogy-finding, extensions may be necessary to generalize to other domains besides product descriptions. For example, our purpose and mechanism vectors did not distinguish between higher and lower level purposes/mechanisms, or core/peripheral purposes/ mechanisms, and also did not encode dependencies between particular purposes/mechanisms. These are potentially fruitful areas for future work.
Acknowledgments
This work was supported by NSF grants CHS-1526665, IIS1149797, IIS-1217559, Carnegie Mellon's Web2020 initiative, Bosch, Google, ISF grant 1764/15 and Alon grant. Dafna Shahaf is a Harry&Abe Sherman assistant professor.
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The magnetic pendulum : a tabletop demonstration of chaos
Christian, JM and Middleton-Spencer, HAJ
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chalkdust
The magnetic pendulum
A tabletop demonstration of chaos
James Christian and Holly Middleton-Spencer
Y have to go a long way to beat the magnetic pendulum for demonstrating the deep and profound nature of physics. One is pictured on the right. On the face of it, a swinging bob seems simple enough to understand. But as is so oen the case, simplicity is masking complexity and the motion possesses an almost magical quality. Here, we will take a glimpse into just how unpredictable the predictable can really be.
Pull the pendulum back some distance in any direction, let it go, and prepare to be mesmerised by the way it darts back and forth in an erratic and seemingly random way. The bob is drawn simultaneously to all three base-plane magnets until, finally, it tends towards a precarious state of rest above one of them. Playing like this, it does not take long to become convinced of two immutable facts. Firstly, one can never know beforehand over which magnet the bob will stop. Secondly, and perhaps more subtly, the motion is not reproducible. No maer how hard one tries to replicate the initial displacement, the bob never follows the same winding path twice and the magnet that ultimately 'wins' seems to be governed by chance. How can we possibly find such randomness in a tabletop toy?
The magnetic pendulum: it comprises a bob with a small magnet suspended by a string above a base plane that contains similar magnets arranged with opposite poles to ensure araction
Of course, the bob is not moving randomly at all and we are at best starting it offeach time from only roughly the same initial conditions. Its motion is prescribed by purely deterministic equations, a combination of classical mechanics and electromagnetics, and at that level there is no randomness. Were we able to release the bob from exactly the same starting position each time, the subsequent motions would all be identical and they would always stop at the same place. No uncertainty. No unpredictability. No endless fascination!
Since our first pull can never be repeated with infinite precision, what we are seeing is sensitive dependence on initial conditions or, more colloquially, the buerfly effect. Any change in input— any, no maer how imperceptibly small—can have a dramatic impact on output. That intriguing phenomenon turns out to be far more widespread and pervasive than one might first imagine. Moreover, it provides our working definition of chaos and crystallises what we mean by saying "a system is chaotic". In this article, we will start to explore how the magnetic pendulum embodies chaos in the scientific (rather than the everyday) sense.
A phenomenological model
It is not too difficult to devise a model that exhibits all the key qualitative features of the magnetic pendulum. Our approach is a phenomenological one, meaning that we are aiming to capture the essence of the motion using intuitive physical ideas rather than focusing on all the mathematical minutiae. A relatively easy way forward is to consider looking down on the pendulum from a plan view (see figure below). The bob's trajectory in the three-dimensional space is projected downwards onto the horizontal base plane, and the origin of the (x, y) coordinates is fixed at the centre of an equilateral triangle. The magnets are subsequently located at vertices X1, X2, and X3, all of which lie along the circumference of a circle with a radius taken to be the unit length.
constant b > 0, the effect of F losses is to drain kinetic energy from the motion through air resistance at low speeds. Finally, we must look to include the aractive forces due to the base-plane magnets. It is tempting to reach immediately for the inverse-square rule familiar from Coulomb's
The position vector of the bob may be represented by x(t) at time t. To account for gravity, it is sufficient for our purposes to consider a restoring force F grav ∝−x whose influence, due to the minus sign, always acts to pull the bob towards the origin x = 0 (the constant of proportionality is set equal to 1, just to keep things simple). Dissipation might be introduced by way of the standard velocity-dependent damping force familiar from textbook physics. Here, we use F losses = −bu, where u ≡ dx/dt. For some
law of electrostatics and Newton's law of universal gravitation. We instead opt for a 1/distance 4 rule as this form tends to describe the forces exchanged by magnetic dipoles.
Since Newton's second law of motion equates mass × acceleration to the combined forces of gravity, magnetism, and damping, we can write down a governing equation of the form
Pythagoras's theorem has been deployed here, and so each contribution in the summation on the right-hand side of (1) corresponds to a 'distance/distance 5 = 1/distance 4 ' type of term. An additional parameter, h 2 , has also appeared. Its role is to suppress unphysical (that is, infinite!) accelerations that would otherwise result whenever x approaches Xn. We then interpret h as being related to the average height of the bob above the base plane.
The equilibrium points are defined to be those positions x = xeq that are unchanging in time. Since the velocity and acceleration of the bob must be zero at those points (hence satisfying dxeq/dt = 0 and d 2 xeq/dt 2 = 0, respectively), it follows from (1) that
Aer playing with the pendulum and noting the positions where the bob tends to stop, we might reasonably expect to find maybe three or at most four solutions (with xeq = 0 being the origin). It is worth mentioning that the nontrivial roots of (2) do not occur at xeq = Xn, as one might initially suspect. Instead, they lie at the same angular positions as Xn (as symmetry demands) but at a radial distance |xeq| that is slightly less than unit length. At these positions, the competing pulls from gravity and magnetism are perfectly balanced.
Equation (1) does a surprisingly good job at mimicking the unpredictability so readily seen in experimental demonstrations; the le-hand side is just the damped harmonic oscillator problem from mechanics while the right-hand side sums over the pairwise magnetic-dipole interactions. On the one hand, any urges to seek analytical solutions should be kept in check. Even this strippeddown toy model confronts us with a formidable mathematical beast living in a four-dimensional realm whose axes are (x, y, ux, uy). On the other hand, computing a numerical solution can be relatively quick and easy for given initial conditions, say x(0) = x0 and u(0) = 0.
Basins of attraction
Physically, we anticipate that the bob will almost inevitably come to rest at one of the non-trivial equilibrium points xeq [cf. (2)] as t →∞. Those special points can be thought of as positions in the (x, y) plane that aract the trajectory, and accordingly they are oen referred to as fixed-point aractors. The idea now is to use a computer to carry out a systematic set of simulations, recording which magnet 'wins' (interpreted as the output) as we vary the starting point x0 (taken to be the input). By associating the outcome of each computation with a colour (eg red for magnet 1, white for magnet 2, and black for magnet 3), we can overlay the output on top of the input (x0, y0) plane to produce a kind of abstract map. The set of all initial conditions lying in the red region is the basin of araction for magnet 1—that is, any x0 lying on a red point will always end up at magnet 1 (and similar for the other colours and magnets), though the colour itself gives no information about the path taken by the bob to arrive at that point.
Using this recipe, we discover a rather striking paern (see fig. 1). Regions around the origin appear relatively simple. There are large single-colour lobes which indicate that variations in x0 tend to have lile impact on which magnet wins. Further out beyond the unit circle, there is much greater complexity and all three colours are intertwined in a beautifully complicated way. In those regions, the pendulum is extremely sensitive to changes in x0. Successive zooming-in suggests the intertwining survives down to smaller and smaller length-scales. That feature—proportional levels of paern detail persisting under arbitrary magnifications—is a defining characteristic of a fractal.
A less obvious but equally fascinating property relates to the nature of the boundary separating two differently-coloured regions. We typically cannot cross from a region of red to an adjacent region of black without touching the white (similar is true for other permutations of colours). This situation is reminiscent of the delightfully strange Wada property from the field of topology.
Final state sensitivity
The basins of araction have three-fold rotation symmetry about the origin, which is a consequence of the equilateral-triangle arrangement of magnets and the initial condition u(0) = 0. Their details also depend crucially on system parameters. One might consider what happens, for instance, when the level of damping is increased (see figure to the right) through b = 0.125 (first row), b = 0.150 (second row), b = 0.175 (third row), and b = 0.200 (boom row). The paern becomes less complex and, accordingly, the pendulum less sensitive to small fluctuations in x0. However, their key features remain intact: the persistence of selfsimilar structure (fractality) and complex boundaries that tend to involve all three colours. The Wada-type property is still present in the righthand column of the last two rows, but it is not obvious from these figures.
A helpful way to quantify just how strongly the long-term state of a system depends upon small fluctuations at its input is to estimate the fractal dimension 1 < D ⩽ 2 of the basin boundaries. One selects a set of NΓ points in a domain Γ of the (x0, y0) plane and tests each of them in turn for
Figure 3. Variation of the basins of araction for the magnetic pendulum as damping is increased. The second and third columns show successive magnifications. Other parameters and domains of the (x0, y0) plane are the same as those in fig. 1.
the property of final-state sensitivity (FSS) by considering a triplet of initial conditions: say (x0, y0), (x0 + ε, y0), and (x0 − ε, y0), where 0 < ε ≪O(1) can be interpreted as an error or as a limit to our experimental precision. When the winning magnet is the same for all three trajectories, then the final state is independent of ε and (x0, y0) is, accordingly, free from FSS. Alternatively, think of ε as the radius of a small disc centred on (x0, y0), somewhere within which the 'true' initial condition lies. FSS, as demonstrated in fig. 2, appears whenever that disc impinges on a basin boundary and thus overlaps more than one colour.
If the total number of points possessing FSS for a given ε is denoted by Nε, one finds that that Nε/NΓ ∼ ε α . The parameter α ≡ 2 − D is known as the uncertainty exponent and it satisfies the
inequality 0 ⩽ α < 1. Finally, we obtain the uncertainty dimension D, where
and a larger D is indicative of increased susceptibility to initial fluctuations. The paerns shown in the middle panes of figs 1 and 3 turn out to have dimensions in the range D ≈ 1.32 (for b = 0.1) to D ≈ 1.16 (for b = 0.2). It follows that the basin boundaries for lightly-damped pendula tend to be associated with higher values of D. More generally, we now see a connection between the dimension of an abstract fractal paern (which, crucially, need not be an integer such as 1 or 2) and the physical property of FSS.
Concluding remarks
In this article, we have started to unpick some of the intriguing behaviour exhibited by what is, in reality, a simple toy—one that never fails to capture the imagination of university students in lectures and Ucas applicants (and their parents alike!) at open days. The apparently erratic swinging and unknowable terminus of a bob are not quite so 'random' as one might first suppose from a few naïve observations. The essential ingredient giving rise to all this rich and diverse behaviour is the interplay between the three constituent feedback loops (here, due to gravity, dissipation, and magnetism).
Although we have considered the barest of bare-bones models (from pretending gravity provides a restoring force proportional to −x, to suppressing the fully-vectorial character of magnetic interactions), the beautiful complexity of nature survives and we simply cannot get rid of it. That, it seems to us, is a mind-blowing conclusion!
James Christian and Holly Middleton-Spencer
James is a lecturer in physics at the University of Salford with research interests covering various theoretical aspects of electromagnetics and fluids. When not writing papers or teaching, he spends most of his time playing with fractals and wishing he were a mathematician instead.
Holly is James's long-suffering graduate student and has just completed an MSc on waves scaering from fractal screens. She will shortly be starting a PhD in applied maths at the University of Newcastle, studying vortices in superfluids. In the end, she'll be a real mathematician.
Did you know...
…that if you walk randomly on a 2D laice, you will eventually end up back where you started, but if you do the same on a 3D laice you might not. Or, as Shizuo Kakutani puts it: "A drunk man will find his way home, but a drunk bird may get lost forever."
Did you know...
…that primes are so scary that there is a prime named aer one of the seven princes of hell: Belphegor's prime (1000000000000066600000000000001).
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Fatigue Risk Management System (FRMS) Integration
A practical guide for small and medium-sized operations who want to run their FRMS within a safety management system (SMS)
Table of contents
Chapter 1: Introduction
The major audience for this guide is small and medium-sized operations, which CASA defines as those employing up to 50 full-time pilots. Small, non-complex organisations may decide that they do not need to develop and implement a fatigue risk management system (FRMS). Rather, a fatigue management approach may be more appropriate for these organisations.
This guide is intended to provide all basic required information for operators with either:
- An SMS and a stand-alone FRMS which they are committed to, or considering, integrating; or
- An SMS and they are committed to, or considering, developing and implementing a FRMS for integration with the SMS.
What is fatigue?
Fatigue is a natural human response to certain conditions. These can include working hours that reduce the opportunity for recovery sleep, operational demands requiring a sustained high-tempo workload, as well as simply being awake when you would normally be asleep.
The symptoms of fatigue are many and varied, and are both physical (e.g. yawning, micro-sleeps) and mental (e.g. loss of vigilance). When impairment due to fatigue, such as impaired memory or poor communication, coincides with other operational risks in the environment, incidents and accidents can result.
A definition of fatigue for use within an operational context is therefore:
'A state of physical and/or mental performance impairment, resulting from factors such as sleep loss or extended wakefulness, circadian phase and workload, that can impair alertness and the ability to perform safely.'
Why might you need an FRMS?
For an FRMS to be of value, you need a level of complexity and systems thinking, and importantly, to acknowledge that poor implementation of any FRMS, SMS or other safety-related initiatives can increase safety-related risks. Therefore, the decision to develop and implement an FRMS needs to be made carefully, after considering all relevant and foreseeable factors.
An operation that is able to operate safely and satisfactorily within the limits of prescriptive rules, such as flight and duty time limitations and rest requirements for flight crew, is unlikely to need an FRMS. In contrast, operators that cannot safely sustain themselves within the single defensive layer of such rules are clear candidates for an FRMS.
What is a fatigue risk management system (FRMS)?
- An FRMS aims to ensure that personnel are sufficiently alert so that they can operate to at least a satisfactory level of performance.
- An FRMS applies principles and processes from the field of safety management system (SMS) development and use, tailored to the specific risks relating to fatigue.
- As detailed in industry resources such as ICAO's FRMS Implementation Guide for Operators, an FRMS (like an SMS) seeks to achieve a realistic balance between safety, productivity and costs.
ICAO defines an FRMS as:
'A data-driven means of continuously monitoring and managing fatigue-related safety risks, based upon scientific principles and knowledge as well as operational experience that aims to ensure relevant personnel are performing at adequate levels of alertness.'
In the ICAO Guide, as outlined in the table below, the structure of an FRMS is based on an SMS framework. The core activities are safety risk management and safety assurance. These activities are governed by FRMS policy and processes and supported by activities including FRMS promotion. Like an SMS, the FRMS must be documented.
For an SMS or an FRMS to be effective, all of the elements shown need to be in place, and they must be appropriate for the complexity, maturity and size of the organisation. An FRMS can include specific tools and resources, the use of which must be considered in the context of the SMS. This is to provide assurance that defensive layers add a net benefit individually and in combination.
Examples of tools and resources relevant to an FRMS are:
- Bio-mathematical models used to estimate and predict fatigue. See CASA's Biomathematical Fatigue Models Guidance Document for more information: www.casa.gov.au/fatigue Such models can be used during roster scheduling/planning as well as assessing actual
working hours after the event. In some cases, models can be fully automated when integrated with rostering and scheduling software.
- Objective and subjective tools to record sleep (e.g. using wrist-worn actigraphy devices and self-reporting mechanisms respectively). See Appendix B of ICAO's FRMS Implementation Guide for Operators for detailed descriptions of such approaches and their pros and cons. See the next Chapter for a link to this resource.
- Objective performance measurement using laboratory-type tests in an operation or data directly from the operation (e.g. flight data). Laboratory-type tests such as the psychomotor vigilance task (PVT) that can be used to obtain surrogate or proxy measures of fatigue are also referred to in Appendix B of ICAO's FRMS Guide for Operators.
Why integrate an FRMS into a safety management system (SMS)?
- Since fatigue affects fitness for duty, which also relates to impairment from other sources such as alcohol and other drugs, fatigue management logically is an integral part of safety management.
- Due to the level of inter-connectedness between fatigue, fitness for duty, human factors and safety management, it could be argued that the 'correct' place for an FRMS is within the SMS.
- In many cases the desire, or need, not to separate the FRMS from the SMS leads to their early integration. In fact, for operations that do not yet have a formal FRMS it is possible, and possibly even desirable, to integrate the FRMS into the SMS while it is being developed and implemented.
Case study
Helicopter Response Pty Ltd is a small rotary-wing operator with seven aircraft and three bases. The company has been operating for 33 years with a steadily improving safety record and is widely acknowledged in Australia as having an effective safety management system (SMS). In 2006 the management team decided to develop and implement an FRMS; a decision also had to be taken as to whether the FRMS would stand alone or be integrated into the SMS.
After considering the options and implications it was unanimously agreed that the FRMS would be built into the SMS from the outset. The reasons for this included:
- All other fitness-for-duty components were already embedded in the SMS
- The person accountable for the SMS was also going to 'own' the FRMS
- The approach would avoid an unnecessary project to integrate the two later on
The critical role of communication in an FRMS
In many ways, the safety promotion activities such as communication associated with an FRMS are considered part of the FRMS. However, safety promotion is critical to the success or failure of an FRMS and/or integrating an FRMS with SMS. The obvious stakeholders tend to be those directly involved with day-to-day operations. However, there is a need for wider communication—to include the executive management team and the board, scheduling and rostering personnel and possibly others such as unions and/or CASA.
If FRMS implementation, or FRMS integration into an SMS, is to succeed, and be effective, all relevant stakeholders must be involved. Senior management especially, have to be committed to providing all the necessary resources. If you do not inform, engage and work with such stakeholders, at best the results will be sub-optimal; and at worst, this could contribute to noncompliance, confusion, inefficiency and, potentially, increased operational risks. Promotion activities and communication are outlined in the next section of this Guide.
Chapter 2: Developing an FRMS
Some of the many resources available to support FRMS development, and its integration into an SMS include:
http://www.icao.int/safety/fatiguemanagement/FRMS%20Tools/FRMS%20Implementation
- The ICAO FRMS Implementation Guide for Operators %20Guide%20for%20Operators%20July%202011.pdf
- The ICAO Annex 19 documentation related to safety management http://www.icao.int/safety/SafetyManagement/Pages/Annex-19,-1st-Edition---Executivesummary.aspx
- The CASA Fatigue Management Resource Kit and associated resources http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD:1001:pc=PC_90315
- The CASA SMS for aviation: a practical guide resource kit – 2 nd edition, 2014 http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD:1001:pc=PC_101005
- The CASA Civil Aviation Advisory Publication (CAAP) SMS-1(0): Safety Management Systems for Regular Public Transport Operations http://www.casa.gov.au/wcmswr/_assets/main/download/caaps/ops/sms-1.pdf
- The CASA Safety Behaviours: Human Factors for Engineers resource kit http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100999
- The CASA Safety Behaviours: Human Factors for Pilots training resource http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_93254
FRMS basics
Given both work (e.g. rosters) and non-work (e.g. individual sleep health) factors contribute to fatigue, individuals and employers must acknowledge that they share responsibility for fatigue management. Without this acknowledgment adequate or sustainable management of fatiguerelated risk is impossible. If individuals or organisations fail to manage fatigue-related risks adequately, the integrity of the FRMS will be compromised. If there is genuine understanding and commitment from employees and employers, supported by appropriate systems and processes, fatigue risks can be managed in a way that supports safe, compliant and productive operations.
Leadership and the FRMS
- As with any safety-related initiative, FRMS leadership is vital for success.
- Effective leadership requires consistently demonstrated commitment to a relevant, practical and safe approach.
- The most senior levels of the organisation must demonstrate leadership:
o by making it personal—sharing their own experiences of fatigue in the workplace— senior managers can raise the profile of fatigue and safety.
o by allocating the necessary resources to the FRMS in the right timeframe, and according to FRMS priorities
FRMS governance
Larger commercial organisations are likely to need what ICAO has defined as a fatigue safety advisory group (FSAG) involved in all aspects of their FRMS. Alternatively, you could include FRMS as a standing component of a broader safety-related working group or committee, or as a sub-group. An FSAG (or equivalent) generally comprises front-line operational representatives (e.g. flight crew), operational management, commercial management, rostering and scheduling and other areas.
FRMS policy and documentation
In a similar way to SMS policy, FRMS policy must articulate:
- Management/leadership commitment
- FRMS accountabilities, responsibilities and authorities
- FRMS objectives
You need to clearly define the objectives of the FRMS to ensure that you meet all essential safety, compliance, operational efficiency and other requirements. You also need to develop FRMS documentation to cover all FRMS processes and procedures, including training records.
Fatigue risk management
Probably more than any other aspect, the FRMS risk management steps have been defined in detail in other freely available publications. These publications include the ICAO and CASA resources referred to above, so this Guide will not cover them in any depth.
The main steps associated with assessing fatigue-related risk, which are complemented by elements such as setting the context, as well as communication and consultation, are:
- Risk identification and assessment
- Risk control/mitigation/treatment
- Risk monitoring and reporting
Fatigue risk management processes should include FRMS implementation. Implementation is likely to be progressive and the steps involved will form part of the system as it evolves. Other components, including a confidential reporting system for fatigue-related information, are also essential. As defined by ICAO, an FRMS must be data driven. This means that documentation is needed to define:
- The data needed
- How frequently this data is required
- Who is accountable for collecting, analysing the data and reporting on it
- How often larger reviews of data are required
- What the data means for the suitability of the current FRMS structure
Data is categorised by ICAO in three distinct categories, as follows:
1. Predictive: this data generally relates to examining future schedules and rosters (e.g. using bio-mathematical models). It could also include monitoring of individuals by validated technologies to inform users of their impairment before they are consciously aware of it.
2. Proactive: this data generally relates to scanning for possible risks in expected operating conditions. Proactive data, therefore, can come from routine, planned reports from crewmembers about their fitness for duty with respect to fatigue. Similarly, risk assessments undertaken before any triggering incidents where fatigue was found to be a causal or contributory factor would be classified as proactive data generating.
3. Reactive: data generated during or after an event. Sources include flight data, confidential reports, fatigue reports, audit reports and incident reports.
Each type of data has a unique value; however, most organisations tend to have much more reactive data than predictive or proactive data. The types of data available in each category are also further defined into objective data, that is directly measured (e.g. warnings triggered by a breach of minimum parameters); and subjective data that is self-reported as a reflection of a professional and/or personal assessment (e.g. confidential reports).
Both objective and subjective data streams have a clear role to play within an FRMS; the degree to which this occurs will depend on the size of an operation and its inherent complexity. For example, a small operator might routinely use reactive data from incident and confidential reports and audits; proactive data from company training and risk assessments; and predictive data from analysis of future flight schedules.
A medium-sized operation might do all of these; and use wrist-worn sleep monitoring of crewmembers on certain schedules to obtain objective data as to whether they are getting enough sleep. They might also use advanced crew resource management (CRM) techniques to regularly scan for the effects of fatigue on an operating crew (with any results being recorded). For a comprehensive description of the steps involved in a full risk management process refer to the ICAO Implementation Guide for Operators.
FRMS safety assurance
FRMS safety assurance forms another layer of defence against an operator's fatigue-related risk exposure. FRMS safety assurance processes are also part of the routine operation of the FRMS: they monitor how well the entire FRMS is functioning. Simply, the safety assurance steps involve:
1. Checking the FRMS is functioning as intended against the specific metrics defined for each required area (such as safety, compliance, operational flexibility, etc.)
2. Identifying where changes in the operating environment have the potential to increase fatigue-related risk exposures (e.g. new schedules, increased use of night or emergency response flying etc.)
3. Identifying areas for improving the management of fatigue-related risks in response to operational experience and associated data
Ongoing improvement: operators are expected to monitor and maintain data to demonstrate the reasons for changes to the FRMS. This data could include eliminating and/or modifying risk treatments because they are no longer needed/relevant, or because of indications there have been unacceptable negative consequences in certain circumstances. The ongoing improvement data could also relate to feedback from crew members about FRMS procedures/processes/sections in documentation that are lacking clarity and the need for new content due to new or future changes to the operational demands and effectiveness of current risk treatments.
FRMS promotion
FRMS promotion is critical to maintaining FRMS effectiveness. FRMS communication should coordinate with the rollout of training, as well as consultation with the workforce and any other stakeholders.
It is sensible to develop a specific plan for FRMS promotion and communication activities clearly defining their context, purpose and objectives. Ideally the FSAG (or equivalent) should do this, and identify the desired audience/stakeholder groups to be addressed.
The next stage is to identify issues such as each group's likely needs, their concerns, and their perceptions of current management of fatigue-related risk. Then, keeping in mind the stated FRMS objectives, and with this understanding of stakeholders, develop key messages for each stakeholder group.
This might include messages common to all stakeholders, such as the identification of fatigue as a critical risk to the business. Other messages might be specific to particular stakeholders; for example, a key message for the workforce and unions might be that safety is the primary driver of the project and that no change to people's take-home pay is expected from the changes.
Promotion activities should progress naturally through the stages of SMS/FRMS development and integration. One effective, simple breakdown of these stages is:
1. Awareness: sharing information about FRMS and the project—what it means for each stakeholder group (e.g. training required, any changes in work schedules, answering any questions that have been raised etc.).
2. Understanding: building on the initial awareness to create more detailed knowledge about who does what (accountabilities), timelines, what is in and out of scope, etc.
3. Adoption: the final phase—continuing to answer relevant and important questions, as well as demonstrating where earlier suggestions have been woven into the updated design.
Case study
Northern Skies Pty Ltd is a medium-sized company with 19 fixed-wing aircraft used primarily for fly-in-fly-out workers servicing the mining industry. Following the implementation of their FRMS, which was integrated into their existing SMS, Northern Skies developed and implemented a communications plan to share the post-implementation review (PIR) results with key stakeholders. The following table is an excerpt from the plan, summarising the critical communication plan rollout details.
Chapter 3: Implementing an FRMS
| | Stakeholder | | Method for | n | Details | Date |
|---|---|---|---|---|---|---|
| | group | | communicatio | | | |
| All operational workers (employees, contractors, etc.) | | Chief pilot weekly video | | | High-level overview of post-implementation review (PIR) outcomes & the importance of continuing to manage fatigue-related risk. Announcement of staff meetings | 26 April |
| | | Weekly safety update email | | | Include key findings, planned changes, change schedule and points of contact | 5 May |
| | | Staff meetings | | | Include update of progress with planned changes against schedule | July (dates as required) |
| | | Intranet safety page | | | Post slides from staff meetings as well as content of chief pilot video and safety email | Within 7 days of each activity above |
| Board of Directors | | Monthly board meeting | | | Overview of PIR outcomes including the change in risk profile, ongoing assurance content and timing as well as links to resources made available to all employees. | 22 April for all content excluding that shared in staff meetings |
| | | One-page reference document | | | Summary of all information provided for future reference and records | 22 April |
| CASA | | Annual FRMS update meeting | | | Overview of PIR outcomes including system changes | 21 August |
No 'off-the-shelf' FRMS is available and, because each aviation organisation is unique, that is unlikely to change. Some elements, such as training packages, might be identical from site to site, or possibly even from company to company. However, other elements such as feasibility and the appropriateness and effectiveness of risk treatments are likely to be specific to each operation.
One of the most difficult decisions many organisations have to make relates to how quickly to implement what is seen as the ideal FRMS. On the one hand, fatigue is known to be a significant risk factor and there is an argument for implementing the 'ideal' FRMS as soon as possible. On the other hand, most organisations have experienced well-meaning initiatives, which were not delivered as intended. This can create new risks and impacts, and cause avoidable frustration.
Consequently, there is a strong case for starting small in any FRMS project. The initial focus could be on:
- Setting outer limits for duty times, minimum rest requirements etc. (e.g. based on legislation).
- Getting into the organisational discipline of fully analysing planned and actual hours of work with a bio-mathematical model.
- Learning all possible organisational lessons from complete investigation of incidents where fatigue may be a causal/contributory factor.
- Raising fatigue awareness via targeted training.
Over time, if these initial activities occur as planned, and are well received because they add value to personnel and the operation, then organisational engagement and trust is likely to be in a good state for the next stage of FRMS implementation. ICAO sets out a specific example of a phased approach: one example of several ways in which implementation could occur. ICAO's four phases are:
1. Planning. This should include:
o Explicitly identifying gaps between the current system(s) and what is intended
o Developing policy and other documentation
o Developing an implementation plan to address the gaps identified in all key systems including reporting, risk management, etc.
2. Implementation of reactive FRMS processes (e.g. improve use of fatigue-related incident data)
3. Implementation of proactive and predictive FRMS processes (e.g. complete risk assessments and enhanced risk treatment of higher exposures, introducing peer monitoring in crews)
4. Implementation of FRMS safety assurance processes (e.g. monitoring of FRMS performance including all relevant components such as management of fatigue risks in schedules, rosters and flight and duty times, as well as training, monitoring, audit, etc.)
How to integrate an FRMS into your SMS
Integrating an FRMS into your SMS effectively treats FRMS data in the same way as other essential streams of data instead of a more stand-alone stream. This is the primary distinguishing feature of an integrated FRMS compared with a stand-alone system. For effective integration, the incorporation of FRMS components/streams would need to be extended throughout the SMS.
Having decided to integrate FRMS into the existing SMS, you need the following process steps:
| Step | |
|---|---|
| 1 | Form a fatigue safety action group (FSAG) or equivalent |
| 2 | Draft FSAG terms of reference, |
FRMS accountabilities, responsibilities and authorities
| 3 | Do a gap analysis of existing SMS documentation, procedures and processes and FRMS requirements | The gap analysis results should indicate: Which SMS documentation, procedures and processes you can apply to the FRMS without change Which SMS documentation, procedures and processes you can apply to the FRMS with modification Where neither of the above apply, which FRMS- specific documentation, procedures and processes you require |
|---|---|---|
| 4 | Develop FRMS policy and objectives | FRMS policy should: State the purpose/objectives of the FRMS including the responsibility management and employees share for managing fatigue-related risk Reflect the commitment of management to: Ensure that sufficiently qualified staff, resources and equipment are available to meet FRMS requirements Ensure that initial and recurrent FRMS training is provided to all relevant employees Continuous improvement of the FRMS - Indicate that all employees involved with the FRMS are required to comply with its requirements (i.e. making appropriate use of rest periods, undertaking FRMS- related training, reporting fatigue-related risks and incidents etc.) |
| 5 | In light of the results of the gap analysis, develop FRMS-related documentation, procedures and processes | You must decide how you will incorporate FRMS-related documentation etc. into the SMS suite of documentation. FRMS procedures and processes should also cover the way you will identify fatigue-related risks (i.e. reactively, through reporting mechanisms; and proactively, by fatigue surveys/questionnaires/performance data). |
| 6 | Develop a project/ implementation plan for SMS/FRMS integration | The project/implementation plan should cover the whole process of integrating the FRMS with the SMS and indicate a timeline for all activities and who is responsible for them. This plan should also indicate a timeline for implementation of the different elements of the communication plan (see below). At this stage you also need to confer with CASA regarding approval of the FRMS (see below). |
| 7 | Develop a comprehensive FRMS communication plan | The communication plan should cover all information that needs to be shared with relevant stakeholders. FRMS-related communications need to be carefully crafted in order to manage employees’ expectations, explaining how the FRMS will, and importantly will not, affect them. Communication to employees should commence at an |
responsibilities and authorities might appropriately be 'read across' to the FRMS, or whether they need to be different.
| | | early stage—the appropriate timing of FRMS-related communications is vital. |
|---|---|---|
| 8 | Review current operations to assess where/when fatigued- related risks may exist and use the risk management process to determine the best way to control them. These results should be reflected in FRMS documentation. | This stage of the process should include a review of rostering arrangements and possible rostering improvements aimed at managing fatigue-related risk better. FRMS procedures and processes must also reflect how you will monitor the effectiveness of your fatigue-related risk management. |
| 9 | Develop fatigue- and FRMS- related training material | The initial fatigue-related training effort should establish a common level of understanding among employees about fatigue and the impairment it causes. As the FRMS develops, training content should then expand to cover the FRMS itself. |
| 10 | Consider the use, or otherwise, of one, or more, bio- mathematical models to assist in identifying potential increases in fatigue-related risk. | If you decide to use a bio-mathematical model, you will need to cover its application in the FRMS documentation and processes. This material should reflect when and how the model will be used (e.g. when developing rosters, fatigue studies, incident investigation etc.). |
| 11 | Develop the processes for ongoing assurance and periodic review of FRMS capability, operational integrity and fitness for purpose, and how FRMS performance will be measured to ensure continuous improvement | Audits and reviews serve specific functions within the FRMS as they do within the broader SMS. Specific merit comes from internal and independent external audit; FRMS components can be assessed separately, or as part of more general safety audits. |
Case study
Medical Response Pty Ltd provides stand-by medical transport throughout regional and country Australia. The company covers a large proportion of the country from five bases and included integration of FRMS into their SMS as one of five safety-related priorities for the year. Based on the lessons learned from changes to the SMS following the integration of alcohol and other drugs content the year before, the company committed a dedicated project manager (one day per week for six months) to ensure that operational, management and regulatory stakeholders were supported and kept informed throughout the change.
The key tasks of the project manager were to implement the changes to documentation that had been identified by the safety department, while also managing the roll-out of the associated communications plan in conjunction with safety, IT and the managing director's support team.
The process for getting approval to trial an FRMS
CASA resources, including a dedicated webpage, clearly define the process for getting formal approval to trial an FRMS:
www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD:1001:pc=PC_101422
This webpage outlines the guidance documentation referred to above, as well as specific forms (Form 824A – Statement of Intent to Request CASA Approval of a FRMS
Form 824B – Application for approval of a FRMS and
Form 817 FRMS Progress Monitoring Tool for Operators).
The webpage also details the specific steps for initial approval to trial an FRMS and the later sequence of steps to apply for, and be granted, a full FRMS approval.
- Step 1 – Complete and submit a statement-of-intent form
- Step 2 – Send completed and signed statement-of-intent form and documents to the Permission Application Centre
- Step 3 – Attend a pre-application meeting
- Step 4 – Submit your formal application
- Step 5 – Review of your application
- Step 6 – Payment of costs and submission of required supporting documents
- Step 7 – Assessment of your application
- Step 8 - Detailed assessment
- Step 9 - Recommendation and approval
- Step 10 - Issue of full FRMS approval
Getting approval to implement an FRMS
As detailed online as per step 8 above, CASA expects that an operator should be ready three months before the end of the trial FRMS period for its evaluation team to conclude an assessment for a full FRMS implementation approval. An operator who intends to apply for a full FRMS will need to notify their appropriate CASA regional office to schedule a final assessment.
When progressing to the recommendation and approval Step (Step 9) and once the assessment for full FRMS implementation approval is complete, the assessing regional office begins the certification process for the full FRMS implementation approval.. The regional office prepares a recommendation to a CASA delegate to issue, or not issue, the approval. At this stage, the applicant will also be informed if the recommendation varies from what has been applied for.
Finally, if approved, your formal approval documents will be emailed or faxed; and the original approval forwarded by mail. Please note that CASA will reconcile your account and, if required, issue a refund or require payment of the balance of any monies owing before issuing the approval.
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MARKET LEGAL UPDATE &
SEPTEMBER 2021 REVIEW
Page 1 of 3
"The Stock Market Sputters in September"
The U.S. equity markets were quite volatile in September, closing the month down from near record highs at the end of August. Whether it was fears of a possible U.S. default, rising inflation driven partially by supply-chain bottlenecks or the spread of the highly contagious Delta variant, fear reigned supreme in the month and caused markets to move downward. The S&P 500 plunged 4.7% in September, ending a streak of seven straight months of gains. Losses were rampant across the board from a sector standpoint, with only the energy sector posting a gain in the month. Fortunately, the index is still up 15.9% in 2021. The Dow Jones Industrial Average (DJIA) didn't fare much better, dropping 4.2% for the month, bringing the year-to-date return to 12.1%. The tech-heavy Nasdaq Composite index lost more than both, falling 5.3% but is still in line with the DJIA on a year-to-date basis. Finally, in the bond market, the yield on the benchmark 10-year U.S. Treasury note jumped significantly, from 1.30% to 1.52%. Not surprisingly, the Bloomberg U.S. Aggregate Index lost 0.9% for the month and remains negative in 2021.
During the month, investors began worrying about whether the U.S. would default on its debt. Janet Yellen indicated that if Congress would not raise the debt ceiling, the Treasury
| Market Return Indexes | September 2021 |
|---|---|
| Dow Jones Industrial Average | -4.2% |
| S&P 500 | -4.7% |
| NASDAQ (price change) | -5.3% |
| MSCI Eur. Australasia Far East (EAFE) | -2.8% |
| MSCI Emerging Markets | -4.0% |
| Bloomberg Barclays High Yield | 0.0% |
| Bloomberg Barclays Aggregate Bond | -0.9% |
| Yield Data | Sept. 2021 |
| U.S. 10-Year Treasury Yield | 1.52% |
could run out of funds to pay U.S. debts by about October 18th. With the debt ceiling being reinstated back in August, the Treasury resorted to its cash reserves and "extraordinary measures" to pay the bills. Once those run out, the Treasury says it will fail to make its payments, causing an outright default, the first ever in U.S. history. With an increased risk of delayed payments, investors are demanding higher yield to hold some short-term Treasuries maturing in mid-October through mid-November.
Moreover, if Congress fails to suspend or raise the debt limit before the deadline, lawmakers risk a default that could cost millions of jobs, threaten government benefits and cause the financial markets to crash. Although most debt ceiling increases have taken place without any issues in the past, we saw a similar crisis develop in 2011 and 2013, and market uncertainty continued until an agreement was reached.
Inflation was another cause for concern during the month, with supply chain disruptions contributing to the rise in CPI data. Treasury yields continued to climb in September, reaching their highest levels since June. Inflation expectations grew following a Federal Reserve meeting that indicated the central bank was prepared to begin backing away from its accommodative policy that was instated to help the economy deal with the pandemic.
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Specifically, the Fed signaled that they would likely begin tapering the bond-buying program soon (as soon as its next scheduled meeting in November) with the conclusion somewhere around mid-2022. Further, the committee revealed a growing inclination to start raising interest rates in 2022 if the progress continues broadly (towards maximum employment and price stability goal) as expected, with the Fed projecting six to seven rate hikes by the end of 2024. The anticipation of tapering has been a source of anxiety for investors over the last several months. Add in elevated inflation expectations for this year and next and it is not surprising to see markets react negatively to the news.
Continuing concerns over the surging Delta variant along with higher inflation has also had a negative impact on consumers' optimism. The Consumer Confidence Index declined yet again in September, following decreases in both July and August. The report showed consumer confidence weakened unexpectedly in September to 109.3, its lowest level since February and below expectations of 114.8. While consumer confidence is still relatively high by historical levels, the Index has now dropped 19.6 points from the recent peak of 128.9 reached in June, and this declining trend seems to indicate consumers have become more cautious and may start to curb spending going forward.
Overall, September was a relatively rough month, both in terms of returns and volatility in the markets, as well as regarding some disappointing economic data releases, as consumers slowed spending on travel and dining out amid the spread of the Delta variant. While U.S. equity markets are up significantly year-to-date and have endured one of the longest rallies without even a 5% correction (last occurred Q3 2020), valuations have become expensive relative to historical averages, and therefore, more sensitive to correct with adverse market headwinds. With inflation rearing its head, the Delta variant throwing a wrench into the return to normalcy, and more significantly, the threat of a first-ever U.S. default, it is no surprise that markets didn't continue their seemingly endless upward trend.
LEGAL UPDATE | New Guidance On Lifetime Income Disclosures
The Department of Labor (DOL) recently issued Frequently Asked Questions (FAQs) to clarify certain matters related to the interim final rule implementing the Lifetime Income Disclosure requirement mandated under the SECURE Act. Certain ERISA covered defined contribution plans (including profit sharing plans, 401(k) plans, and 403(b) plans) are now required to provide Lifetime Income Disclosure illustrations to participants at least once every 12 months. The Lifetime Income Disclosures are intended to give participants a realistic picture of what their monthly retirement income would look like based on their current retirement savings or current rate of savings. The rule became effective on September 18, 2021, and applies to benefit statements issued after such date. The FAQs answer questions regarding timing, lifetime benefit illustrations, and upcoming guidance.
The FAQs include the following:
* Q&A1 clarifies that for participant-directed plans that issue quarterly benefit statements, the lifetime income illustration must be included on just one of the benefit statements provided in a 12-month period. The deadline to issue the first disclosure is within one-year of the rule's effective date of September 18, 2021. Therefore, in order to meet the deadline for the initial disclosure, Lifetime Income Disclosures must be included on any quarterly statement issued after September 18, 2021, but no later than with the benefit statement issued for the second quarter of 2022. The rule does not permit a delay beyond the end of the second quarter of 2022, since benefit statements for the third quarter of 2022 will be too late, because they will not be issued within one-year of the rule's effective date of September 18, 2021.
* Q&A2 clarifies that for non-participant directed plans that issue only one annual benefit statement, the initial Lifetime Income Disclosure must be issued to participants for the first plan year ending on or after September 18, 2021. For calendar year plans, the first disclosure would be due with the benefit statement for the 2021 calendar year.
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Q&A3 makes clear that lifetime income estimates need only be based on a plan participant's savings to date. However, the guidance clarifies that the Lifetime Income Disclosures may also provide lifetime income estimates based on projected future contributions or in-plan annuity options.
* Q&A4 clarifies that the DOL intends to issue final rules as to Lifetime Income Disclosures as soon as possible. The DOL did not commit to providing any further transition relief before the rule is finalized.
These FAQs are characterized as temporary because they are based on an interim final rule. Plan sponsors should be aware that the final rule could contain different and/or additional guidance.
IRS Announces Tax Relief for Taxpayers in FEMA Declared Disaster Areas
The IRS has issued several announcements providing tax relief for many recent victims located in federally declared disaster areas, as declared by FEMA. This means the IRS has postponed the tax-filing deadlines for taxpayers who reside or have businesses in these areas, which cover many states and disasters.
The affected individuals and businesses who had October 15 deadlines to file tax returns will now have until January 3, 2022, to file. A complete list of the recent tax relief announcements can be found on the IRS website at: https://www.irs.gov/newsroom/tax-relief-in-disaster-situations.
If you have any questions or would like additional information, please contact your USI Consulting Group representative, email us at firstname.lastname@example.org or visit our website at www.usicg.com.
For previous market commentaries please click here.
This communication is published for general informational purposes and is not intended as advice or a recommendation specific to your plan. Neither USI nor its affiliates and/ or employees/agents offer legal or tax advice.
An index is a measure of value changes in a representative grouping of stocks, bonds, or other securities. Indexes are used primarily for comparative performance measurement and as a gauge of movements in financial markets. You can not invest directly in an index and, for comparative purposes; they do not reflect the effect of the various fees inherent in actual investment vehicles.
The S&P 500 Index is a market value weighted index showing the change in the aggregate market value of 500 U.S. stocks. It is a commonly used measure of stock market total return performance.
The Dow Jones Industrial Average is a price weighted index comprised of 30 actively traded blue chip stocks; primarily industrial companies, but including some service oriented firms.
The NASDAQ Composite Index is a market-value weighted index that measures all domestic and non-U.S. based securities listed on the NASDAQ Stock Market.
Gross Domestic Product (GDP) is the market value of the goods and services produced by labor and property in the U.S. It is comprised of consumer and government purchases, net exports of goods and services, and private domestic investments. The Commerce Department releases figures for GDP on a quarterly basis. Inflation adjusted GDP (or real GDP) is used to measure growth of the U.S. economy.
The MSCI Europe and Australasia, Far East Equity Index (EAFE) is a market capitalization weighted unmanaged index developed by Morgan Stanley Capital International to measure approximately 1,100 securities in 21 major overseas stock markets. It is a commonly used measure for foreign stock market performance.
The Barclays Capital U.S. Aggregate Index covers the U.S. Dollar denominated investment grade, fixed-rate, taxable bond market of SEC-registered securities.
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GRACE UNITED METHODIST CHURCH
Mission statement: Grace United Methodist Church is a family of faith striving to share God's love with all people.
April 11, 2022
Words from the Pastor
Grace, mercy and peace to our Church Family and Friends,
On Sunday, April 10, we celebrated Palm Sunday which begins Holy Week and commemorates Jesus' triumphant entry into Jerusalem. There was much excitement as Jesus arrived humbly, seated upon a donkey/colt. The gathered crowd amplified the celebration as they waved palms, laid their coats/clothes on the donkey and on the streets, and shouted "Hosanna" (save now), and "Blessings on the king who comes in the name of the Lord, peace in heaven and glory in the highest heaven". Spiritually, the crowds represent humanity joyously responding to the presence of the Christ among them. Jerusalem symbolizes a place of perfect peace. My prayer is that your Holy Week be blessed with joyous memories of our Heavenly Father who loves us, cares for us, and sent His only Son to die on the cross for our sins.
Prayer for Holy Week
O Father, most merciful, in the beginning you created us, and by the passion of your only Son, you created us anew. Work in us now, both to will and to do what pleases you. Since we are weak and can do no good thing by ourselves, grant us your grace and heavenly blessing, that in whatever work we engage, we may do all to your honor and glory. Keep us from sin and empower us daily to do good works, so that as long as we live in the body, we may always perform service to you. After our departure give us pardon of all our sins, and receive us to eternal life; through him who lives and reigns with you and the Holy Spirit, forever and ever. Amen. Source: St. Anselm, 11th century
There will be Zoom Disciple Bible Study on Wednesday, April 13, 2022. We will begin at 7:30 pm and end 9:00 pm. We are preparing lesson 8, "The People with a King," for class on Wednesday.
Zoom Confirmation Class will meet on Thursday, April 14, 2022. We will begin sharply at 6:00 pm and end at 7:00 pm in April and May. Confirmation Sunday is June 12, 2022.
On April 14, 2022, we will observe Holy Thursday with service at 8:00 P.M. The Scripture readings are Exodus 12:1-14, Psalm 116:1-4, 12-19, 1 Corinthians 11:23-26, and John 13:117, 31b-35. Please read these scriptures before the service to help enhance your Holy Thursday experience.
On April 15, we will observe Good Friday with two (2) services. At 2:00 pm, laity will share messages on the Seven (7) Last Words of Jesus on the Cross. The scriptures are Luke 23:32-34, Luke 23:39-43, John 19:25-27, Matthew 27:46-50, John 19:28, John 19:28-30, and Luke 23:46. The lectionary readings are from Isaiah 52:13-53:12, Psalm 22, Hebrews 10:1625, John18:1-19:42. Please read these scriptures before the service to help enhance your Good Friday experience.
On April 17, 2022, we will celebrate Easter Sunday. The scripture readings are Acts 10:3443, Psalm 118:1-2, 14-24, 1 Corinthians 15:19-26, and John 20:1-8. Please read these scriptures to help enhance your Easter Sunday experience.
It was good to see members and friends that we have not seen in a while at worship on Palm Sunday. We look forward to seeing more members and friends on Easter Sunday.
Our church is opened for in person worship service in the sanctuary. Zoom and Facebook will continue at 10:00 am. We will continue to follow the COVID guidelines for in person worship. The Zoom worship service Meeting ID is 883 8493 0735, Passcode: 086482, Telephone # 1 929-205-6099. Zoom Sunday School is at 12:30 pm, Meeting ID is 886 7860 9822, Passcode: 673474, Telephone # 1 929-205-6099. Zoom invitation will be go out by Saturday. Please visit the church's website at GraceVSNY.org. From the website homepage you can visit the church's Facebook. Please share with your families and friends. Thank you.
Journeying towards Easter Pastor Nation
Prayer List. †♥Family of Adam Doeringer, ♥Christine Doeringer, ♦♥Richard Keller (son of Bert Keller), ♥Michael Provenzano, ♥Mason Baker (cousin of Debbie Nicosia), ♥Sherry Schutt (niece of Pearl Hamilton), ♥Thornton Stone (father of Brian Stone), ♥People of Ukraine, ♥Roael Cooke (brother-in-law of Pearl Hamilton), ♥Ramona Morrison (daughter of Margo and Vincent Morrison), ♥Averil Wallace (relative of Earl Boyd), ♥Neil Allen (son-in-law of Margo and Vincent Morrison), ♥Pastor Nation, ♥Walter McKnight, ♥Coleen Murray, ♥Velda Mathis (sister-in-law of Marianne Pike), ♥Maria Smith (mother of Rebecca Heyward), ♥Kenneth Richardson, ♥Kris Thomsen (cousin of Debbielee Thomsen), ♥Nancy Roman (friend of Sing Larson), Emilia Peeples (granddaughter of Debbie and Joe Nicosia), ♥Alice Shubrick (friend of Pearl Hamilton), ♥Susan Short and her daughter ♥Sarah Short (friends of Nancy Wasek), ♥Faith Pollack (friend of Sing Larson), ♥Pearl Hamilton, ♥Charles Zipperlen, ♥Anne Mahoney, ♥Douglas Hayes, ♥Ulysses Ceazer (friend of Svetlana Hamlet), ♥Hensbert Neville Brooks (husband of Mahalia Brooks), ♥Kay Hartmann, ♥All United Methodist Women in Rehabilitation and Nursing Homes, ♥Shirley Shivrattan-Dookhi, ♥Juliana Bonds (sister of Eleanor Phillip), ♥Maudlyn and Keible Scarlett, ♥Amy Cooke (sister of Pearl Hamilton), ♥Bob von Schmid (son-in-law of Adam and Christine Doeringer), ♥Kenneth Kurz (grandson of Lenore and Manny Kurz), ♥Michael Kurz (son of Lenore and Manny Kurz), ♥Airman Jayvee Kurz (grandson of Lenore and Manny Kurz), ♥Elaine Treske, ♥Castells Family (family of Elaine Treske), ♥Margo and Vincent Morrison, ♥Cyril (friend of Pat Eshun), ♥Samuel A. Dorsey (father of David A. Dorsey), ♥David Biegler, ♥Iris Molina, ♥Olga Molina (sister of Iris Molina), ♥Everol Palmer (son of Enid Simpson), ♥Evelyn Neber (friend of Elaine Treske), ♥Bill Hammen (brother of Edie Zipperlen), ♥Rondolph Ives (brother of Margo Morrison), ♥Health care workers fighting the Viruses, those who are suffering, and grieving families. Note. Prayer List names will continue to be listed for three weeks. After that period of time, the names will be removed unless you call us with current information. † - Death in family, ♦ - New entry
COUNTING TEAM SCHEDULE FOR
APRIL 2022
4/17 K. Pearce
4/24 D. Nicosia
SPECIAL SUNDAY DONATIONS in April
EASTER SUNDAY – April 17, 2022
MISSIONS
SPECIAL SUNDAY OFFERINGS - 2022
MISSIONS – February/April/July/November 2022
HUMAN RELATIONS DAY – January 16, 2022
UMCOR SUNDAY – March 27, 2022
EASTER – April 17, 2022
NATIVE AMERICAN MINISTRY – May 1, 2022
GOLDEN CROSS SUNDAY – May 8, 2022
PEACE WITH JUSTICE SUNDAY – June 12, 2022
WORLD COMMUNION SUNDAY – October 2, 2022
THANKSGIVING – November 24, 2022 (Thursday)
UNITED METHODIST STUDENT DAY – November 27, 2022
CHRISTMAS EVE– December 24, 2022 (Saturday)
CHRISTMAS – December 25, 2022 (Sunday)
DONATIONS. We continue to need your help in supporting Grace Church, especially during the continued threat of the viruses. Your checks can be mailed to the church office or you can use Venmo or Zelle. Venmo allows you to make a direct deposit donation to Grace Church electronically. If you are already signed up, you can use this now. If not, it is easy to sign up. Go to Venmo.com and follow the easy directions. The Church is listed as Grace Methodist VS. Currently a good number of the congregation are using Zelle (do not use the Church phone number, use the Church email address – email@example.com). More and more of our friends and members are using these avenues for their donations and we appreciate it. Thank you
Just for your info, you can also donate via Venmo or Zelle to our Special Sunday's (Missions, Student Day, etc.). In the memo line just notate Regular Offering and or Regular Offering and Missions. Also mention the amount you would like to give for each.
Zoom Sunday School. We had 2 kids and 6 in all for Zoom Sunday School April 10. In the younger kids' lesson, we remembered the story of Palm Sunday and heard the story of the Last Supper when Jesus shared the bread and wine with his disciples and washed their feet. Then Kim Neri led us in singing, "This is the Day that the Lord Has Made," "Sing and Celebrate," the Palm Sunday song, "Allelu," and the "Jesus Loves Me" Easter song. We missed our older kids. Please join us next week!
Wondering How You Can Help the People of Ukraine?
United Methodists and others wishing to provide humanitarian assistance to the Ukrainian people in the wake of the Russian invasion of their country may contribute to Advance #982450, UMCOR International Disaster Response and Recovery. This fund will provide direct assistance to those in Ukraine as well as assistance to Ukrainians fleeing to neighboring countries.
Gifts to support the people of Ukraine can be made in the following ways:
- Online at https://umcmission.org/advance-project/982450
- By toll free telephone: 888-252-6174
- By check with "Advance #982450-Ukraine" written on the memo line, either mailed and addressed to Global Ministries/UMCOR, GPO, P.O. Box 9068, New York, NY, 10087-9068 or given at or through any United Methodist church
One hundred percent of all Advance contributions go to the designated cause.
The United Methodist community in Ukraine, though quite small, is actively engaged in assisting neighbors in need. Global Ministries is in touch with the Church's leadership as well as with church leaders in countries welcoming those who are fleeing from violence in Ukraine.
The new Grace UMC Website is now live! Please check it out at https://www.gracevsny.org (same website name as before). One good thing about the new website is that it should display well on a phone, tablet, or computer screen. You will find the weekly order of worship and church newsletter posted there, as well as a link to Facebook for viewing worship services. There is also an enhanced calendar feature that allows you to display it by month, week, as a list, or by category. Be sure also to check out the dropdown menus at the top of the home page for more content. We welcome feedback and suggestions. You may contact Katherine Perkins at firstname.lastname@example.org. Thanks!
HOLD THE DATE!! We are having a Retirement Dinner for Pastor Nation on Thursday, May 19 th . It is being held at the Coral House located at 70 Milburn Avenue in Baldwin (516/223-6500). The cost per person is $80 and the event will last from 6PM-10PM. We are looking forward to celebrating with Pastor and Desmond as they begin their new journey. Invitations have been sent out. RSVP is requested. NOTE: We are carefully monitoring the increase in the infection rate of COVID-19. If it continues to rise, masks and proof of vaccination may be required. The safety of our guests is of the utmost importance to us. You will be advised the week prior to the Retirement Dinner of the final decision. You can also call the Church Office for further clarification.
Save The Date for United Women in Faith (UWF) formerly known as UMW. We shall be having the UWF Day/Fundraiser Event on 5/8/22 during church service.
Audio-Visual Technician Job Posting
Grace United Methodist Church in Valley Stream, NY is seeking an experienced Audio-Visual Technician to live stream church services over online platforms such as Zoom and Facebook Live. Eligible candidates should possess the following skills and experience:
- Familiarity with audio and video equipment and accessories: cameras, microphones, audio mixers, computers, LCD projectors, etc.
- Camera Operations: Basic video and/or DSLR camera operations suitable to shoot and record a religious service from a fixed location.
- Audio: Setting up and mixing multiple microphones for a live broadcast. Placement of microphones for music broadcast, setting up handheld microphones, lavaliers, etc.
- Experience with online broadcast platforms such as Zoom and Facebook Live. Must possess the ability to prepare the broadcast, broadcast over multiple platforms simultaneously, and troubleshoot on-the-fly in order to broadcast an uninterrupted service.
- Computer and network experience: Candidates should possess the skills to operate a computer and access a network to log into and broadcast over online streaming services.
Please submit your resume with a cover letter summarizing your strengths, skills, and relevant experience to email@example.com.
CALENDAR
Meetings: Our Church re-opened on March 6, 2022. Several of our groups will also begin to meet in-person. However, please check the calendar below for Zoom meetings. Thank you.
Weekly Meetings:
*Every Sunday – Choir Rehearsal 8:15AM/Church
*Every Sunday – Zoom Sunday School
12:30PM – Younger Kids will have a Bible Lesson and Fellowship
12:45PM – Older Kids will join the Younger Kids for singing
1PM -1:15PM – Older Kids will have a Bible Lesson and Fellowship
*Every Monday – Retirement Committee Meeting 8:15PM/Zoom
*Every Wednesday – Junior Choir 4:30PM-5PM/Church
*Every Wednesday – Rainbow Ringers 5PM-5:30PM/Church
*Every Wednesday – Bible Study 7PM-8PM (Zoom/FB) during Lent
*Every Wednesday during Lent – Lent Service 8PM (Zoom/FB)
*Every Thursday – Westminster Ringers Rehearsal 7:30PM/Church
*Every Thursday – Confirmation Class 6PM-7:30PM/Zoom
Upcoming Meetings:
*Tuesday, April 12, 2022 – Worship Committee 8PM/Zoom
*Wednesday, April 13, 2022 – Boy Scouts 7PM/Gym
*Monday, May 16, 2022 – Church Council Meeting 7:30PM/Zoom
Monthly Meetings:
*Every Second Sunday is Youth Sunday until June 12, 2022 (Church/Zoom)
*Every Second Monday – UWF 7:30PM/Zoom
Upcoming Events:
*Thursday, April 14, 2022– Holy Thursday 8PM (Zoom/FB/In-Person)
*Friday, April 15, 2022 – Good Friday 2PM (Zoom/FB) and 8PM (Zoom/FB/In-Person)
*Sunday, April 17, 2022 – Easter Sunday 10AM (Zoom/FB/In-Person)
*Sunday, May 8, 2022 – Mother's Day (All Day!)
*Sunday, May 8, 2022 – UMF Fundraiser during Church
*Sunday, May 15, 2022 – Music Sunday 10AM
*Thursday, May 19, 2022 – Retirement Dinner for Pastor at the Coral House/6PM
*Sunday, June 12, 2022 – Confirmation Sunday
*Sunday, June 19, 2022 – Father's Day (All Day!)
Eileen
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IMAGE ANALYSIS TECHNIQUES FOR VERTEBRA ANOMALY DETECTION IN
X-RAY IMAGES
by
MOHAMMED DAS
A THESIS
Presented to the Faculty of the Graduate School of the
UNIVERSITY OF MISSOURI-ROLLA
In Partial Fulfillment of the Requirements for the Degree
MASTER OF SCIENCE IN COMPUTER SCIENCE
2008
Approved by
_______________________________ _______________________________
Dr. Fikret Ercal, Co - Advisor
Dr. R. Joe Stanley, Co - Advisor
_______________________________ _______________________________
Dr. Bruce M. McMillin
Dr. Randy H. Moss
COPYRIGHT 2008
Mohammed Das
All Rights Reserved
ABSTRACT
In this research, imaging techniques are investigated for the analysis and detection of abnormalities in cervical and lumbar vertebrae. Detecting vertebra anomalies pertaining to osteoarthritis such as claw, traction and anterior osteophytes can aide in treatment plans for the patient. New size invariant features were developed for the detection of claw, traction and anterior osteophytes in cervical spine vertebrae. Using a K-means clustering and nearest centroid classification approach, the results were generated that were capable of discriminating cervical vertebrae for presence of anomalies related to osteophytes. The techniques developed can be integrated into systems based on querying spine images to be classified for such anomalies.
Computed tomography (CT) scan images of lumbar spine models are investigated and three dimensional models are generated for studying the shape and structure of the lumbar spine. Using the 3D models, techniques are developed for the detection of traction in lumbar x-ray images. Using K-means clustering and nearest centroid classification, attempts are made to classify lumbar spine images based on presence of traction.
ACKNOWLEDGEMENTS
As a prelude to this thesis I would like to express my sincere gratitude to those precious few without whose co-operation I would have been unable to engage in attempting to accomplish all of my undertaken endeavors.
At the outset I take the opportunity to thank my parents who have been a constant source of strength throughout my life. They have always allowed me to venture out all opportunities that have come across to me with all of their support. I am grateful to my brother Husain Das who has always been a source of inspiration and whose constant words of motivation have enabled me to work diligently and has taught me to face all challenges dauntlessly.
I express my sincere gratitude to Dr. Ronald Joe Stanley who has week-in and week-out spared time to guide me and help me in the comprehension, analysis and implementation of the work outlined here. Being an apprentice here, I have not only been successful in completion of the projects undertaken here but have also had the opportunity to research intensively on various aspects related medical image processing, pattern classification, software development and software integration processes. The experience and expertise that I have gained here will truly help me in all the future endeavors in my life ahead.
Special thanks go to Dr. Fikret Ercal, who being my academic advisor has guided me through out in my graduate studies and in selection of all course work. I am thankful to my thesis committee member Dr. Randy H. Moss and Dr. Bruce McMillin who have examined my research work and provided insightful suggestions.
Lastly, I am grateful to all those who have directly and indirectly helped me during the course of my studies and my research.
TABLE OF CONTENTS
Page
LIST OF ILLUSTRATIONS
LIST OF TABLES
1. INTRODUCTION
1.1. ANOMALIES PERTAINING TO THE SPINE
Osteoarthritis is the term used to describe the deterioration of joints in the body due to age, injury or disease. Osteoarthritis affects more than 16 million people in America alone, with a higher probability of affecting people over the age of 75 years [1]. Osteoarthritis can involve the loss of the cartilage tissue between bones or joints, which can cause an increase in the friction of joints, leading to a sense of pain and over time limiting the mobility of joints. An inflammation can also occur on these joints affected by osteoarthritis which can be seen as an abnormal bone growth or bone spurs, called as osteophytes [2, 3].
The Lister Hill National Center for Biomedical Communications, an R&D division of the National Library of Medicine (NLM), National Institutes of Health (NIH), has been active in conducting research in the field of analysis of x-ray images of the spine using computer assisted techniques. It has developed a system called the Web-based Medical Information Retrieval System (WebMIRS) which provides online access to a large repository of x-ray images of spines and other associated data that were surveyed as a part of the National Health and Nutrition Examination Surveys (NHANES) [4]. Several techniques have been developed that allow researchers and other groups to retrieve such data efficiently. The conditions pertaining to the presence of osteoarthritis can be studied using digitized radiographs like x-rays and computed tomography (CT) scans obtained by Content Based Image Retrieval (CBIR) techniques. This research undertaking was devoted to the development of computer aided techniques with use of x-rays and CT scans in order to assist in the discrimination of variations of anterior osteophytes in normal cervical and lumbar spine vertebrae.
Several methods had been investigated to classify anterior osteophytes. Macnab's classification is based on radiology and pathology [5, 6], and involves a grading system defined by a medical expert to assign severity levels to the Macnab classes. Macnab's
1
classification defines claw and traction osteophytes. A claw osteophyte extends from the vertebral rim and curves in the direction of the adjacent disc. A claw region is typically triangular in shape and is curved at the tip of the region. A traction osteophyte tends to protrude horizontally, is usually thick, does not tend to curve at the tips and does not extend across the inter-vertebral disc space. The severity grading system includes three grades for osteophytes as slight, moderate and severe. If a vertebra does not exhibit claw or traction or does not exhibit a moderate or a severe grade for anterior osteophytes, the vertebra is considered normal. These abnormalities can lead to friction between joints, deterioration of the bone tissue and the cartilage tissue around the vertebra, causing pain and also can limit the mobility of joints [2]. Hence, early detection of these anomalies can be helpful in assisting the development of patient treatment plans.
Figure 1-1 presents an example of a cervical spine x-ray image. The highlighted region shows the cervical spine vertebrae. Figure 1-2 provides the borders of cervical vertebrae C3–C6, as determined by a domain expert at the National Library of Medicine (NLM). For each cervical vertebrae provided in the data set a set of 36 points on the vertebral boundary were provided which could define the shape of the vertebra. Also, for each case truth values indicative of the presence of claw, traction and anterior osteophytes were provided by a domain expert at NLM. Size-invariant descriptors based on convex hull of vertebrae had been investigated [2] to classify lumbar vertebrae for the presence of anterior osteophytes. A similar approach is adopted for classifying cervical vertebrae for the presence of claw, traction and anterior osteophytes. The shape of a normal vertebra is typically rectangular and hence similar to its convex hull, hence any deviation from its regular rectangular shape could be tagged as a presence of an anterior osteophyte. Figure 1-2 shows an example of cervical spine vertebrae where vertebra C3 shows a presence of traction and a moderate anterior osteophyte, C4 shows the presence of claw and severe anterior osteophyte, and C5 shows a presence of traction. In this research undertaking, new size-invariant descriptors are proposed for detecting claw, traction and anterior osteophytes in cervical vertebrae. The new size-invariant features proposed are based on comparing the opposite edges of the vertebra about axes passing through its centroid.
The use of 3D models of body joints is an active research field and can offer newer avenues to be explored by studying 3D models of vertebral joints. Threedimensional modeling of lumbar vertebrae is discussed in this thesis which can be used in detection of various deformations relating to the vertebral spine column like traction. Traction as defined by Macnab's classification is an osteophyte that is usually thick and protrudes horizontally, which does not tend to curve at the tips and does not extend across the inter-vertebral disc space. Figure 1-3 presents an example of a lumbar spine x-ray image. The highlighted region shows the cervical spine vertebrae. Figure 1-4 provides the borders of lumbar spine vertebrae L1–L5, as determined by a domain expert at the National Library of Medicine (NLM).
The lumbar vertebrae are larger in size as compared to the cervical vertebrae. Hence, we investigate into generating 3-D models to assist size-invariant features in detecting anomalies in lumbar vertebrae. Three-dimensional models of lumbar vertebrae are developed for estimating two-dimensional projected model representations for lumbar vertebrae in x-ray images. The three-dimensional (3D) models of lumbar vertebrae, L1L5, are derived from cross-sectional CT images of a normal lumbar vertebra and algorithms for combining them into 3D representations were provided by Dr. Sameer Antani and Dr. Rodney Long at NLM. A data set of lumbar vertebrae is provided with images and necessary textual data. For each lumbar vertebra provided in the data set a set of 36 points on the vertebral boundary are provided which could define the shape of the vertebra. The data set also consists of a truth table for each case indicating the presence or absence of traction as provided by a domain expert at NLM. This thesis presents the work done towards detection of traction based on K-Means clustering model development from two-dimensional projections of the 3D modes models and nearest centroid classification of lumbar spine x-ray images.
1.2. THESIS OVERVIEW
This thesis introduces image analysis techniques and pattern classification methods to determine anomalies related to the vertebral spine. Previously, computer assisted techniques were studied using radius of curvature and boundary gradient features for detecting anterior osteophytes in cervical vertebrae [7] and were also used in studying herniation classification of inter vertebral discs in lumbar vertebrae [8]. In this thesis, xray images are used for cervical vertebrae and techniques are developed to detect anomalies and classify them accordingly. Also, the use of computed tomography scans for modeling of lumbar spine is investigated so as to allow visualizing the lumbar spine in three dimensional orientations. Attempts are made to detect the presence of traction in lumbar x-ray spine images by comparing them to projections of the 3D models.
The sections in the remainder of the thesis are explained below. Chapter 2 describes the methods used and experiments performed for discriminating cervical vertebrae for presence of claw, traction, and anterior osteophytes. Sub-sections 2.1.3 and 2.1.4 describe the procedure for calculating size-invariant features for cervical vertebrae based on the convex hull techniques and sub-sections 2.1.5 and 2.1.6 describe the procedure for calculating size-invariant features for cervical vertebrae by flipping across centroidal axes. Section 2.2 describes the experiments performed for the purpose of classifying the data set of cervical vertebrae using the size-invariant features calculated for each case. The results of the classification problem are mentioned and discussed in section 2.3. Chapter 3 investigates the use of three dimensional modeling of lumbar vertebrae in order to assist in developing methods to discriminate lumbar vertebrae based on the presence of traction. Sections 3.1 and 3.2 explain the generation of 3D models of lumbar vertebrae using computed tomography (CT) scans and the generation of the projections of 3D models at different viewing angles respectively. Section 3.3 describes an algorithm developed to compare lumbar vertebrae images with projections of 3D models at different viewing angles. The results and conclusions of the methodologies used are explained in section 3.5.
2. SIZE-INVARIANT FEATURES FOR DISCRIMINATING CERVICAL VERTEBRAE FOR THE PRESENCE OF ANAMOLIES
2.1. ALGORITHMS FOR CALCULATING SIZE-INVARIANT FEATURES
2.1.1. Overview of the problem
In this study, new size-invariant features are proposed for cervical vertebrae analysis, including anterior osteophytes discrimination and the detection of claw and traction. The proposed features extend previous research to detect anterior osteophytes [2], which utilized size-invariant-based descriptors to quantify deviations of a vertebra's shape from its typical convex shape. This study proposes new size-invariant descriptors beyond the analysis of convex hulls.
2.1.2. Determination of vertebral boundary
For each cervical vertebra in the data set we are provided with a text file which consists of ( ) y x, pair of coordinates of 36 points along the boundary of the vertebra. These 36 points are marked along the vertebra boundary by experienced radiologists and domain experts. For the purpose of calculating the size-invariant features, we need to compute the shape of the vertebra. A second order B-spline [2] algorithm was applied to the set of 36 coordinates that computes a set of connected points which make up the complete vertebra boundary. An image fill operation was performed upon the set of connected boundary pixels to get the completely filled vertebra. If ) , ( y x D D = denotes the filled vertebra, then D was defined by equation 2.1. Figure 2-1 shows a filled cervical vertebra to illustrate the procedure explained above.
2.1.3. Pre-processing involved towards calculation of size-invariant convex-hull based features
The first five features developed for discrimination of claw, traction and anterior osteophytes were based on comparisons between vertebra image and the convex hull of the vertebra [3]. The convex hull of a set of points Q is defined as the smallest convex simple polygon enclosing all the points of Q [9]. In order to compute the convex hull of the vertebra image, we use the implementation of the Quickhull algorithm provided by Barber et al. [10]. The convex hull of the cervical vertebra in Figure 2-1 is shown in Figure 2-2. The convex hull image ) , ( y x H H = is defined as,
Let X be the exclusive-OR of the vertebra image D with the filled convex hull imageH . Figure 2-3 shows the exclusive-OR of the cervical vertebra shown in Figure 2-1 with its convex hull. Figure 2-4 describes the areas obtained in X pertaining to the different edges of the vertebra. The areas pertaining to the superior side, inferior side and the anterior side are labeled.
Depending upon the vertebra under consider, X may include one or more connected regions for each vertebral side showing a concave edge for the corresponding vertebra. Let X H D A and A , A be the areas of vertebra image D , convex hull region H , and the exclusive-OR between D and H . Let k denote the number of distinct
connected regions in X considering 8-connectivity. If X , for k ..., 3, 2, 1, i = , denotes i each of the distinct connected regions, then the set X can be represented as U k i i X X 1 = = . The centroid ( ) D D y x , of the filled vertebra D was calculated and the centroids ( ) i i y x , , k ..., 3, 2, 1, i = , for each of the k connected components within X having areas k 3 2 1 A ..., , A , A , A were calculated. Figure 2-5 shows the position of the centroid of the cervical vertebra in Figure 2-1. Since, this research undertaking was aimed at calculating abnormalities like claw, traction and osteophytes pertaining to the anterior side of vertebrae, it can be concluded that the information corresponding to the posterior region does not contribute in discriminating such anterior side abnormalities and hence can be considered irrelevant. Consider P X to be the subset of set X , X X P ⊆ ; where P X was computed as U k i m P X X 1 = = such that m X does not belong to the posterior side of the vertebra. In order to identify if i X belongs to the posterior side or not, we consider the positioning of the centroid ( ) i i y x , corresponding to region i X . The region i X was said to belong to the posterior side if D i x x > and D i y y < . Such i X are not included in the set P X . The area of the exclusive-OR region not including the posterior side was given by, ∑ = = k i i P A A 1 , for all i , such that, k i ≤ ≤ 1 and P i X X ⊆ . In order to compute the area of pertaining only to the inferior side, we consider the subset I X of X , X X I ⊆ , where U k i m I X X 1 = = , such that m X belongs to the inferior side of the vertebra. Analogous to computing P X , any region i X was considered in computing I X , if and only if, for the centroid ( ) i i y x , corresponding to region i X , the condition D i x x > and D i y y > was true. The area of the exclusive-OR region pertaining only to the inferior side of the vertebra was given as, ∑ = = k i i I A A 1 , such that, k i ≤ ≤ 1 and I i X X ⊆ . Similarly, the areas corresponding to the superior side of the vertebra, S A and the
anterior side of the vertebra, T A were calculated. The calculated values for areas were used in computing the convex-hull based features for discrimination of claw, traction and anterior osteophytes in cervical spine.
Figure 2-5: Image of cervical vertebra illustrating the posterior side bounded by dotted lines which are passing through the centroid of the vertebra.
2.1.4. Description of size-invariant convex-hull based features
For a given vertebra, the following features were calculated based on the computations described in sub-section 2.1.3:
1) The ratio between the area of the filled vertebra and the area of the filled convex hull of the vertebra,
2) The ratio between the area of the exclusive-OR region without the posterior side regions and the area of the filled convex hull of the vertebra,
3) The ratio between the area of the exclusive-OR regions pertaining to the inferior side of the vertebra and the area of the vertebra,
4) The ratio between the area of the exclusive-OR regions pertaining to the superior side of the vertebra and the area of the vertebra,
5) The ratio between the area of the exclusive-OR regions pertaining to the anterior side of the vertebra and the area of the vertebra,
2.1.5. Preprocessing involved towards calculation of size-invariant features based on flipping of vertebra over centroidal axes
The next features that were computed were based on flipping the vertebra about its centroidal axes. For this, first we consider the set of points D corresponding to the completely filled vertebra as described in sub-section 2.1.1. The orientation of the vertebra was estimated by computing the corner points of vertebra denoted by D . The corner points can be computed from the topmost, leftmost, rightmost and bottommost points of the vertebra.
In order to make a comparison of the shapes of the posterior and anterior sides, we first calculate the orientation of the vertebra along the posterior side by calculating the slope of the line joining the end points of the posterior side. The corners points or the end points of the posterior side correspond to the topmost and rightmost points of the vertebra as can be seen in Figure 2-1. Now, the vertebra was rotated by the angle calculated from the slope of the posterior side, such that the slope of the posterior side of the rotated vertebra becomes zero, giving the vertebra a horizontal orientation along its posterior side.
Moment normalization [11] was applied to the rotated vertebra so as to eliminate any skeweness from its alignment as shown in Figure 2-6. Let MN X denote the set of points contained in the moment normalized vertebra with MN A corresponding to the area described by the points in MN X . Next, the centroid ( ) MN MN y x , for the moment normalized vertebra MN X was calculated. Using the centroid ( ) MN MN y x , , the set MN X was divided into two disjoint sets T X and B X corresponding to top and bottom halves of MN X , such that, for any point ) , ( y x P in the set MN X , ) , ( y x P belongs to set T X if MN y y ≤ and ) , ( y x P belongs to the set B X if MN y y > . It can be easily seen that MN B T X X X = ∪ . Figure 2-6 clearly shows the sets MN X , T X and B X . As seen in Figure 2-6, T X denotes the posterior half of the vertebra and B X denotes the anterior half of the moment normalized vertebra in MN X .
In an attempt to make a comparison between the shapes of the posterior and anterior edges, we first flip the anterior half of the vertebra in B X along the centroidal axis of the moment normalized vertebra passing through the centroid ( ) MN MN y x , and parallel to line joining the end points of the posterior edge. Let the flipped anterior half be denoted by flipped B X _ . Finally, we compute the set R X as the exclusive-OR between T X , the posterior half and flipped B X _ , the flipped anterior half of the vertebra.
Let X R A be the area of the exclusive-OR set R X .
Similarly, in order to make comparisons between the edges of the vertebra pertaining to the superior and inferior sides, we compute the orientation of the vertebra along the superior side by calculating the slope of the line joining the end points of the superior side of the vertebra. Using, the angle calculated from this slope, the vertebra was rotated such the superior side of the vertebra has a horizontal alignment. Moment normalization was performed so as to obtain the moment normalized vertebra MN Y . The set MN Y and the set MN X correspond to the same vertebra, but are different as the orientation of the vertebra in each case differs, although they have approximately the same area MN A . Next, the points in set MN Y were divided into two distinct sets T Y and B Y , such points lying above the centroid of MN Y belong to set T Y , or set B Y otherwise. This is done by computing a line passing through the centroid ( ) MN MN y x , of the vertebra and is parallel to the line joining the end points of the superior side. The set T Y corresponds to the vertebra half containing the superior side and the set B Y corresponds to the vertebra half containing the inferior side.
In order to compare the shapes of the superior and posterior sides, we first flip the vertebra half B Y containing inferior side about the centroidal axis parallel to the superior side as shown in Figure 2-7. Let the flipped inferior side vertebra half be denoted by flipped B Y _ . Finally, we compute the set R Y as the exclusive-OR between T Y , the vertebra half containing the superior side and flipped B Y _ , the vertebra half containing the flipped inferior side.
Let Y R A be area of the exclusive-OR set R Y .
The calculated values for areas were used in computing novel features for discrimination of claw, traction and anterior osteophytes in cervical spine.
2.1.6. Description of size-invariant features based on flipping of vertebra over centroidal axes
For the given vertebra, the following features were calculated based on the computations described in sub-section 2.1.5:
1) The ratio of the area obtained by exclusive-OR operation between the anterior and the posterior sides of the moment normalized vertebra and the area of the moment normalized vertebra,
2) The ratio of the area obtained by an exclusive-OR operation between the superior and the inferior sides of the moment normalized vertebra and the area of the moment normalized vertebra,
2.2. EXPERIMENTS PERFORMED
2.2.1. Experimental Data
The experimental data was provided by the National Library of Medicine (NLM), which contained the following:
1) A data sheet consisting of a table where each row was a tuple τ, ( ) I S I S I S o , o , t, t , c , c name, τ = . Here, the attribute name contained a string for the vertebra name. The attributes I c and S c have values true/false indicating the presence of claw on the superior and inferior sides of the vertebra respectively. The attributes S t and I t have values true/false indicating the presence of traction on the superior and inferior sides of the vertebra respectively. Lastly, the attributes S o and I o have enumerated labels { } severe moderate, slight, indicating a grade for the presence of anterior osteophytes on the superior and inferior sides of the vertebra.
2) For each vertebra in the data sheet, a text file was provided which contained values representing ( ) y x , coordinates of 36 points along the vertebral boundary for the corresponding vertebra.
The data set provided consisted of a total of 390 cervical vertebrae for which the proposed features were calculated in order to facilitate in determining the presence of claw, traction and anterior osteophytes. The 36 points along the vertebral boundary for each vertebra were provided to NLM by experienced radiologists and domain experts. For the entire dataset, three new classes of attributes ( ) o t, c, were introduced, of which c and t had values labeled true/false , where c was indicative of the presence of claw and t was indicative of the presence of traction. The attribute class, c , indicating the presence of claw was assigned a value true , if either s c , the attribute class for presence of claw at superior side or I c , the attribute class for presence of claw at the inferior side had a value true ; otherwise it was assigned the value false . Similarly, the attribute class t for presence of traction was assigned values based on the values S t and I t corresponding to the superior and inferior sides. The attribute o had an enumerated label { } severe moderate, slight, indicating the presence of anterior osteophytes. This attribute was assigned a value labeled severe if either, S o , the superior side or I o , the inferior side label had a value severe ; else it was assigned a value labeled moderate if either S o or I o had a value moderate ; otherwise it was assigned a value labeled slight . For this research undertaking, the discrimination of anterior osteophytes was done for a normal/abnormal classification. Hence, for all the vertebra cases provided in the data set, the vertebra labels for anterior osteophytes bearing a label slight were considered to be normal and vertebra labels having the label moderate or severe were considered to be abnormal.
The data set was stratified by the type of cervical vertebrae, which are C3 – C7. It was observed that the data set of 390 cervical vertebra consisted of 97 C3s, 99 C4s, 96 C5s, 76 C6s and 22 C7s. The 390 entries in the data set when grouped by target variables c , t and o showed the following distribution.
Table 2-1: Distribution of cervical vertebrae dataset for detecting claw, traction and anterior osteophytes.
| | Number of cervical vertebrae |
|---|---|
| Claw/No claw | 242/148 |
| Traction/No traction | 212/178 |
The features 7 1 F F − explained in section 2.1 are calculated for each vertebra provided in the data set. These features were developed keeping in mind the aim of this research undertaking which was investigation of cervical vertebra for the presence claw, traction and anterior osteophytes that have any characteristic deviations in their shape from a normal rectangular shape. The features 5 1 F F − which are based on comparisons with the convex hull of the vertebra and the features 7 6 F F − which characterize the difference in curvature of the sides of the vertebra can be considered as the basis for detection of claw, traction and anterior osteophytes.
2.2.2. Generation of training and test sets
In order to generate the training and test sets, first we integrated the features calculated for each vertebra and the data provided. The integrated data set hence consisted of tuples of the form, o) t, c, , F , F , F , F , F , F , F (name, τ 7 6 5 4 3 2 1 n = ; where name , c , t and o are as explained in sub-section 2.2.1 and 7 1 F F − are the features calculated for the vertebra corresponding to name .
For classification of cervical vertebra for the presence of claw as claw/no claw, for the presence of traction as traction/no traction and the presence of anterior osteophytes as abnormal/normal, twenty randomly generated training sets and test sets were generated for each of the three classification problems. The data set was divided into training and the test sets. Ninety percent of the normal and abnormal feature vectors were used in the training set and the remaining ten percent for the test set.
2.2.3. Classification
The three classification problems involved generating a model that could classify a given input vector into classes claw/no claw, traction/no traction, and abnormal/normal osteophytes, respectively. These classifications were performed on the data set of cervical vertebrae with features 6 1 F F − and with features 7 1 F F − separately. The following procedure was applied for each of the three classification problems (claw/no claw, traction/no traction and abnormal/normal osteophytes). For each of the 20 randomly generated training and test sets, first, the mean and standard deviation values, μ and σ were calculated for all features F in the feature set 7 1 F F − of the training set.
Second, the feature vectors are normalized by subtracting each feature by its mean and dividing by its standard deviation. For each feature F in the feature set, we calculate the normalized feature norm F as, { } norm norm norm f F, f f F ∃ ∈ ∀ = | , where norm f was calculated as, σ μ - f f norm = , for norm norm F f ∈ and F f ∈ . Third, the number of clusters for each class (claw, no claw) was estimated by using subtractive clustering [12, 13]. Fourth, using the normalized featured vectors for the training data and the number of cluster estimated for each class, K-means clustering [14, 15] was performed to determine the cluster centers for each class. Fifth, we normalize the set of test vectors using the mean and standard deviation values obtained for the training set. Sixth, for each of the feature vectors in the test set, nearest centroid classification was performed. For each normalized feature vector in the test set taken, the Euclidean distance to the cluster centers of each class were computed. The minimum of the Euclidean distance was calculated and depending upon the class (claw, no claw) of the cluster center for which the Euclidean distance was of minimum value, a similar label was assigned to the test feature vector. Seventh, the true negative and true positive classification rates are computed for the test data. True positive refers to the percentage of test case vertebrae with claw being classified correctly and true negative refers to the percentage of test case vertebrae with no claw being classified correctly. Eighth, the process was repeated for all the 20 randomly generated training and test sets. The entire procedure of classification was performed over the set of features 6 1 F F − and the set of features 7 1 F F − and corresponding results were generated.
The procedure for classification of traction and anterior osteophytes was analogous to the procedure for claw. The cluster centers for the classes of traction and no traction are computed in the process of classifying traction. The procedure for classifying anterior osteophytes was slightly modified. For anterior osteophytes, cluster centers were calculated for each of the three classes slight, moderate and severe. For the test vectors, Euclidean distances were computed to each of the cluster centers. If the minimum Euclidean distance corresponded to a cluster center for class slight, then the test vector was assigned the label normal. If the minimum Euclidean distance corresponded to a cluster center for either the class moderate or the class severe, the test vector was assigned a label abnormal.
2.3. RESULTS AND CONCLUSION
2.3.1. Experimental Results
The results obtained from the experiments performed to classify cervical vertebrae as claw/no claw, traction/no traction, abnormal/normal for anterior osteophytes computed based on the six features and computed based on seven features are discussed below. The classification was done over the provided data set of 390 cervical vertebrae. Table 2-2 below contains the results of the experiments performed using the six features 6 1 F F − for classification of claw/no claw, traction/no traction and abnormal/normal for anterior osteophytes for cervical vertebrae. Table 2-3 below contains the results of the experiments performed using the seven features 7 1 F F − for classification of claw/no claw, traction/no traction and abnormal/normal for anterior osteophytes for cervical vertebrae as done for the six features 6 1 F F − . Table 2-2 and Table 2-3 show the results of classifying the 20 randomly generated test sets using clustering techniques over the classification models obtained for the training sets using six and seven features respectively as discussed in sub-section 2.2.3.
In Table 2-2 and Table 2-3, the column 1 gives the iteration of the training and test sets generated. Columns 2 and 3 provide the results obtained for claw/no claw classification, Columns 4 and 5 contain the results obtained for traction/no traction classification and Columns 6 and 7 give the results for abnormal/normal classification for detection of anterior osteophytes. All the vertebrae bearing grades moderate or severe were considered abnormal and all the vertebrae bearing grades slight were considered normal. Also note that 20 different training and test sets were generated for each classification problem. The mean and standard deviation values for each classification result were found are shown at end of Table 2-2 and Table 2-3.
Table 2-2: K-Means classification results for cervical vertebrae using six features.
| Iter. | % Correct Claw | % Correct No Claw | % Correct Traction | % Correct No Traction | % Correct Abnormal | % Correct Normal |
|---|---|---|---|---|---|---|
| 1 | 84 | 71.43 | 91.67 | 80 | 85.19 | 83.33 |
| 2 | 88 | 78.57 | 79.17 | 100 | 92.59 | 66.67 |
| 3 | 88 | 64.29 | 83.33 | 86.67 | 96.3 | 66.67 |
| 4 | 80 | 78.58 | 87.5 | 93.33 | 77.78 | 83.33 |
| 5 | 84 | 71.43 | 83.33 | 93.33 | 81.48 | 83.33 |
| 6 | 80 | 78.58 | 100 | 73.33 | 92.59 | 66.67 |
| 7 | 84 | 92.86 | 79.17 | 100 | 85.19 | 83.33 |
| 8 | 96 | 57.14 | 79.17 | 100 | 81.48 | 66.67 |
| 9 | 88 | 71.43 | 83.33 | 86.67 | 85.19 | 66.67 |
| 10 | 88 | 78.58 | 87.5 | 80 | 85.19 | 66.67 |
| 11 | 92 | 64.29 | 91.67 | 73.33 | 81.48 | 83.33 |
| 12 | 80 | 78.58 | 83.33 | 86.67 | 92.59 | 83.33 |
| 13 | 84 | 71.43 | 83.33 | 86.67 | 77.78 | 75 |
| 14 | 80 | 78.57 | 83.33 | 86.67 | 85.19 | 83.33 |
| 15 | 84 | 85.72 | 83.33 | 86.67 | 77.78 | 83.33 |
| 16 | 96 | 57.14 | 83.33 | 86.67 | 85.19 | 83.33 |
| 17 | 76 | 85.71 | 91.67 | 66.67 | 81.48 | 75 |
| 18 | 92 | 71.43 | 87.5 | 73.33 | 74.07 | 91.67 |
| 19 | 84 | 85.72 | 83.33 | 80 | 81.48 | 83.33 |
| 20 | 88 | 64.29 | 95.83 | 60 | 85.19 | 66.67 |
| Mean | 85.8 | 74.29 | 86.04 | 84 | 84.44 | 77.08 |
| Std.Dev. | 5.43 | 9.67 | 5.62 | 10.9 | 5.84 | 8.5 |
Table 2-3: K-Means classification results for cervical vertebrae using seven features.
| Iter. | % Correct Claw | % Correct No Claw | % Correct Traction | % Correct No Traction | % Correct Abnormal | % Correct Normal |
|---|---|---|---|---|---|---|
| 1 | 84 | 71.43 | 87.5 | 80 | 76.92 | 83.33 |
| 2 | 92 | 78.57 | 83.33 | 93.33 | 73.07 | 66.67 |
| 3 | 80 | 64.29 | 79.17 | 93.33 | 69.23 | 100 |
| 4 | 72 | 78.58 | 79.17 | 93.33 | 53.84 | 76.92 |
| 5 | 80 | 85.72 | 83.33 | 86.67 | 76.92 | 84.62 |
| 6 | 88 | 71.43 | 83.33 | 86.67 | 72 | 72.73 |
| 7 | 88 | 85.72 | 70.83 | 93.33 | 69.23 | 81.82 |
| 8 | 96 | 50 | 87.5 | 66.67 | 80.77 | 70 |
| 9 | 84 | 71.43 | 79.17 | 86.67 | 76.92 | 66.67 |
| 10 | 92 | 78.58 | 87.5 | 80 | 76.92 | 90.91 |
| 11 | 80 | 64.29 | 79.17 | 80 | 73.08 | 69.23 |
| 12 | 72 | 78.58 | 87.5 | 93.33 | 84.62 | 100 |
| 13 | 80 | 85.72 | 87.5 | 80 | 84.62 | 69.23 |
| 14 | 88 | 71.43 | 95.83 | 73.33 | 69.23 | 91.67 |
| 15 | 88 | 85.72 | 83.33 | 80 | 69.23 | 80 |
| 16 | 96 | 50 | 75 | 80 | 65.38 | 76.92 |
| 17 | 84 | 92.86 | 75 | 80 | 76 | 54.55 |
| 18 | 88 | 71.43 | 79.17 | 86.67 | 80.77 | 83.33 |
| 19 | 88 | 85.72 | 70.83 | 80 | 84.62 | 81.82 |
| 20 | 88 | 57.14 | 91.67 | 100 | 73.08 | 63.64 |
| Mean | 85.4 | 73.93 | 82.29 | 84.67 | 74.32 | 78.2 |
Table 2-4 and Table 2-5 provide the number of clusters determined by the subtractive clustering used over the training data set of six features and seven features respectively. The number of clusters were determined for training data sets for each classification task of claw/no claw, traction/no traction and abnormal/normal for anterior osteophytes separately as the training data sets in each task differed. This process was done for all iterations of K-means clustering and nearest centroid classification of the 20 randomly generated training sets.
Table 2-4: Number of clusters used for each classification using K-means clustering over six features (F1-F6).
| Iter. | Number of Clusters | | | | | | |
|---|---|---|---|---|---|---|---|
| | Claw | No Claw | Traction | No Traction | Severe osteophytes | Moderate osteophytes | Slight osteophytes |
| 1 | 4 | 5 | 3 | 6 | 8 | 4 | 4 |
| 2 | 4 | 8 | 3 | 5 | 8 | 3 | 3 |
| 3 | 4 | 6 | 3 | 6 | 6 | 4 | 3 |
| 4 | 4 | 5 | 3 | 5 | 5 | 4 | 3 |
| 5 | 4 | 7 | 3 | 6 | 8 | 4 | 5 |
| 6 | 4 | 6 | 3 | 8 | 7 | 4 | 3 |
| 7 | 5 | 6 | 3 | 5 | 8 | 5 | 4 |
| 8 | 4 | 7 | 3 | 5 | 6 | 3 | 4 |
| 9 | 4 | 5 | 4 | 5 | 9 | 3 | 4 |
| 10 | 4 | 8 | 3 | 8 | 6 | 3 | 5 |
| 11 | 4 | 6 | 3 | 5 | 8 | 3 | 4 |
| 12 | 4 | 5 | 3 | 5 | 6 | 3 | 4 |
| 13 | 4 | 7 | 4 | 6 | 6 | 6 | 4 |
| 14 | 4 | 6 | 3 | 5 | 6 | 4 | 4 |
| 15 | 5 | 6 | 3 | 5 | 7 | 3 | 4 |
| 16 | 4 | 7 | 3 | 5 | 7 | 4 | 3 |
| 17 | 5 | 7 | 2 | 5 | 6 | 3 | 3 |
| 18 | 5 | 8 | 2 | 5 | 8 | 4 | 4 |
| 19 | 4 | 8 | 3 | 7 | 7 | 4 | 3 |
| 20 | 4 | 6 | 3 | 8 | 7 | 3 | 3 |
Table 2-5: Number of clusters used for each classification using K-means clustering over seven features (F1-F7).
| Iter. | | | | | | |
|---|---|---|---|---|---|---|
| | Claw | No Claw | Traction | No Traction | Severe osteophytes | Moderate osteophytes |
| 1 | 4 | 4 | 4 | 11 | 10 | 7 |
| 2 | 4 | 5 | 4 | 11 | 10 | 7 |
| 3 | 3 | 5 | 5 | 11 | 11 | 6 |
| 4 | 4 | 4 | 5 | 10 | 9 | 5 |
| 5 | 4 | 6 | 3 | 12 | 12 | 6 |
| 6 | 4 | 4 | 4 | 10 | 13 | 6 |
| 7 | 4 | 6 | 4 | 10 | 10 | 6 |
| 8 | 3 | 4 | 5 | 10 | 11 | 4 |
| 9 | 4 | 4 | 5 | 9 | 10 | 6 |
| 10 | 4 | 5 | 4 | 9 | 10 | 5 |
| 11 | 3 | 5 | 3 | 9 | 11 | 4 |
| 12 | 4 | 4 | 4 | 10 | 9 | 5 |
| 13 | 4 | 6 | 4 | 11 | 11 | 8 |
| 14 | 4 | 4 | 3 | 12 | 10 | 7 |
| 15 | 4 | 6 | 4 | 9 | 12 | 7 |
| 16 | 3 | 4 | 4 | 10 | 11 | 5 |
| 17 | 4 | 5 | 4 | 11 | 10 | 8 |
| 18 | 4 | 6 | 4 | 11 | 10 | 7 |
| 19 | 4 | 5 | 5 | 12 | 10 | 5 |
| 20 | 4 | 5 | 4 | 10 | 20 | 6 |
In order to discuss the experimental results obtained using the six features and the seven features, the results for the five convex hull features are generated so as to provide a basis to discuss the contribution of features 6 F and 7 F in the classification process. A summary of the results obtained for classification of claw, traction and anterior osteophytes using the five convex hull based features are given in Table 2-6. Columns 2 and 3 represent the results obtained for claw/no claw classification, Columns 4 and 5 represent the results obtained for traction/no traction classification and Columns 6 and 7 represent the results for abnormal/normal classification for detection of anterior osteophytes. All the vertebrae bearing grades moderate or severe were considered abnormal and all the vertebrae bearing grades slight were considered normal. Columns 27 provide the average results of percentage of cervical vertebrae in the data set that were classified correctly for each class.
Table 2-6: K-Means classification results for cervical vertebrae using the five convex hull based features.
| | % Correct Claw | % Correct No Claw | % Correct Traction | % Correct No Traction | % Correct Abnormal |
|---|---|---|---|---|---|
| Mean | 85.2 | 70.7 | 81.3 | 78 | 86.3 |
2.3.2. Conclusions
New size invariant features were investigated and developed in order to improve the results of classification for claw, traction and anterior osteophytes. It can be concluded that the proposed size-invariant features show that they are capable of discriminating cervical vertebrae for the presence of claw, traction and osteophytes as seen by the results obtained in Table 2-2 and Table 2-3. The use of features 6 1 F F − provided average discrimination rates of 85.80% for claw, 86.04% for traction and 84.44% for detecting anterior osteophytes and 74.29% for no claw, 84.00% for no traction and 77.08% for normal vertebra with slight osteophyte. The use of features 7 1 F F − provided average discrimination rates of 85.40% for claw, 82.29% for traction and 74.32% for detecting anterior osteophytes and 73.93% for no claw, 84.67% for no traction and 78.20% for normal vertebra with slight osteophyte. Overall, the performance compared to the results seen earlier for the five convex hull based features have been improved. This leads to the fact that the features 6 F and 7 F provide novel information in classification of cervical vertebrae for anomalies like claw, traction and anterior osteophytes.
It can be seen that the six features and the seven features provided better results for traction as compared to claw and anterior osteophytes. The results obtained by using the features 6 F and 7 F are very identical in discrimination of cervical vertebrae for presence of claw. For the case of discrimination of traction, the six features provided better results for the case where traction is correctly detected, that is the true positive cases, while the seven features provided slightly better results to detect the absence of traction correctly, that is the true negative cases. The seven features also provided better standard deviation values in detecting absence of traction. In the case of discriminating cervical vertebrae for anterior osteophytes, the six features provided far better results than the seven features. Another important observation to be made from Table 2-4 and Table 2-5 is that the number of clusters required in the process of classification of anterior osteophytes using the seven features 7 1 F F − is far greater than required for the six features 6 1 F F − . This can be one of the reasons that better results were obtained with six features for discriminating anterior osteophytes.
The overall goal of the research undertaking was to investigate and develop features characteristic to anomalies relating to osteoarthritis such as claw, traction and anterior osteophytes in cervical vertebrae and to develop techniques to classify them accordingly. It can be concluded that the proposed features can be incorporated into a content based image retrieval (CBIR) system to allow querying of images with conditions specific to anomalies like claw, traction and anterior osteophytes.
3. ORIENTATION ESTIMATION OF LUMBAR VERTEBRAE IN X-RAY IMAGES USING 3D MODELS
3.1. GENERATION OF 3D MODELS
3.1.1. Overview of the problem
This research proposes the use of 3D models to study the shape of lumbar spine vertebrae in order to assist in detection of anomalies like traction. This involves generating methods to create 3D models that can be studied and to develop techniques using size-invariant features for classification of lumbar spine vertebra images based on presence of traction.
The initial data that was provided by NLM consisted of a series of images for each lumbar vertebra L1-L5 developed using computed tomography (CT) scans and a set of algorithms implemented in Matlab ® . These images and the initial algorithms for model generation were provided by the National Library of Medicine (NLM). The implementation of the provided algorithms performed as follows. First, for each lumbar vertebra L1-L5, the corresponding CT scan images were processed using segmentation tools and a set of binary images B was generated for each L1-L5. Each of these twodimensional binary images b , , B b ∈ corresponded to the image of the vertebra when sliced. Since, the binary images b represent the images of a sliced vertebra, hence, when these two-dimensional binary images b , , B b ∈ obtained from the layered CT scans are stacked one over the other, we get a three-dimensional structure J that describes the shape of the lumbar vertebra. Third, a three dimensional smoothing operation was performed over J to produce a smoothened shape of the vertebra, s J . Last, the set of points in s J are applied a patch routine available in Matlab ® . The patch routine displays the points s J to give a 3D structure which can be viewed as a solid object. The output of the patch routine was the required 3D model i D as defined in equation 3.1.
The above procedure was repeated for all five sets of binary images, , B generated for the five lumbar vertebrae L1-L5. Hence, we get a set of 3D models { } 5 4, 3, 2, 1, i D D i = = | corresponding to each of the five lumbar vertebrae. The 3D models for lumbar vertebrae L1 and L2 are shown in Figure 3-1 and Figure 3-2, respectively.
3.1.2. Azimuth and elevation angles
The 3D models for each lumbar vertebra i D generated from layered CT scan images can be rotated to provide different views of the lumbar vertebrae. Matlab ® incorporates two parameters that are azimuth angle and elevation angle which are used to define the orientation of a 3D object. With reference to the Matlab ® documentation [16], the definitions of these angles are explained here. Let x be the axis in the right direction, y be the axis in the direction straight ahead going away and z be the axis in the up direction as depicted in Figure 3-3. Then, the azimuth angle is defined as the viewing angle in the xy plane with positive values indicating counter-clockwise rotation from the viewpoint and vice-versa. The elevation angle was defined as the viewing angle made above or below the xy plane, here positive values of elevation angle indicate that the angle was made above the xy plane and negative values of elevation angle indicate that the angle was made below the xy plane. An illustration of these angles is as shown in Figure 3-3. For this study, the orientation of lumbar vertebrae will be described using the pair of these two angles, ( ) el_angle az_angle, , where angle az _ represents the azimuth angle of viewing the object and the angle el _ represents the elevation angle of the viewing the object. All angles mentioned in this study are measured in degrees, unless specified otherwise. The orientation corresponding to ( ) 0 90, - represents the front view of the object.
3.1.3. Cropping the pedicle
As seen for 3D models for lumbar vertebrae L1 and L2 in Figure 3-1 and Figure 3-2, the set D consists of 3D models that represent the complete structure of lumbar vertebrae L1-L5. For this research undertaking, we required only the vertebrae without their pedicle portion that connects to the vertebral column. Hence, we revert back to the algorithms explained in sub-section 3.1.1. The given algorithms were modified so as to cut out the pedicle portion from each of the 3D models, i D .
To cut out the pedicle portion, we first needed to compute the top view of the vertebra in order to compute the position from where the pedicle portion of the vertebra begins to project out. The smoothened three-dimensional structure, s J which was obtained by stacking all the binary images in the set B , represents the structure of the lumbar vertebra model as described in sub-section 3.1.1. In order to proceed with the cropping of the pedicle, we need to find the top view image of the three-dimensional structure s J . To compute the top view projection of s J , a logical AND operation was performed over all the binary images b , B b ∈ , that make up the structure of s J . The top view image obtained for L1 is shown in Figure 3-4. In the top view image, we compute the location from where the pedicle is attached to the rest of the vertebra. Using this location we crop the pedicle out from the remaining structure of the vertebra so as to retain only the vertebra part.
Point of maximum change in slope
Figure 3-4: Top view of 3D model L1.
Point of maximum change in slope
The center dark blob in the top view image in Figure 3-4 was segmented out as shown in Figure 3-5 as a white blob. For the segmented center blob, a set of points b B are determined, such that every point p in b B lies on the boundary of the bottom half of the center blob. From the set of point b B , a point c p is found such that the change of slope for the curve defined by the points in b B is the greatest. This point c p denotes the optimum position from where the pedicle part should be separated out from the rest of the vertebra. This point c p was then transformed to its equivalent position ( ) z y, x, j , s J j ∈ , where s J is the three dimensional structure of the lumbar vertebra described in sub-section 3.1.1. The point j is illustrated in Figure 3-6. All the pixels beyond the vertical orthogonal plane parallel to the yz plane and passing through the point j are then changed to background pixels, hence eliminating the pedicle part from the vertebra. Let this structure be called c J . Next, the patch routine available in Matlab was then applied to the vertebra structure without the pedicle, c J , to generate the required 3D model. This process was repeated for all the complete 3D models in set D to generate
the required 3D models c D . Figure 3-7 through Figure 3-11 show the 3D lumbar vertebrae models generated after cropping the pedicle.
Figure 3-7: 3D model for lumbar vertebra L1 after cropping out the pedicle.
3.2. CREATING AND SAVING THE PROJECTION IMAGES
3.2.1. Projection of 3D models
In an attempt to employ 3D models of lumbar vertebrae in discriminating the presence of traction in lumbar vertebrae, we need to compare the structure of 3D models to the structure of vertebrae in our data set. In this research, we compute the orientation of the 3D models at different angles and find the best matching orientation of the 3D models to the two dimensional vertebrae boundaries found for vertebrae in the x-ray images. The lumbar vertebrae boundaries were determined from their respective files provided by NLM, containing 36 points along the vertebra boundary, using the same procedure as presented in section 2.1.1. The lumbar vertebrae from x-ray images were then matched to the corresponding 3D models of lumbar vertebrae of the same type, L1L5.
The lumbar vertebrae models generated are three dimensional in structure, the data set of the vertebrae to be discriminated for traction can be provided in form of x-rays or other two dimensional image forms. Hence, in order to compare the provided vertebrae with the 3D models, it was required to find the two dimensional projection of the 3D models at different combination for the angles of orientation. The different orientation angles used in this study are between 100 - and 80 - for azimuth angle and 10 - and 10 for elevation angle with an interval of 0.5 for each. The range of different values for the azimuth and elevation angles is given by azRange and elRange respectively.
The sets azRange and elRange both contain 41 different values. For each azRange angle az ∈ _ and elRange angle el ∈ _ , the projections of a 3D model corresponding to a combination pair of ( ) el_angle az_angle, gives a total of 1,681 different projection of the 3D model.
3.2.2. Storing and indexing of projection images
In order to compute the orientation characteristics of lumbar vertebrae in the data set provided, it was required to generate the projections of a corresponding 3D model for all 1,681 different combinations of ( ) el_angle az_angle, to find the best match. The process of computing the projections of a 3D model for all different angles had to be performed for each case of lumbar vertebrae in the experimental data set. The process of generating the projection for a 3D model was time consuming and was recurring for each experimental case. Hence, it was decided to compute all the different projections for each of the 3D models i c D , store them and retrieve them whenever needed. For each 3D model i c D , we obtain a set i P , which contained the 1,681 different projections of that lumbar vertebra model. Next, it was required to save the all the projection images obtained for all the five models for lumbar vertebrae L1-L5, and to index them for easy retrieval. The indexing of the projection images involves creating a index for each projection images based on, first, the label indicating the type of lumbar vertebra viz. L1-L5 and second, the pair of angles ( ) el_angle az_angle, which determined the orientation of the corresponding 3D model for which the projection was obtained. The filenames used for projection images contained a label indicating the type of lumbar vertebra and the corresponding ( ) el_angle az_angle, angles of the projection. Hence, the filenames of the projection images themselves act as an index, which can be used for indexing of these projection images.
While indexing and storing the projection images, the aspect ratio of the projected vertebra model was also calculated. The comparison of projection images of the vertebra models with the lumbar vertebra images in the data set needed to be performed to compute its orientation characteristics. It was required to calculate the aspect ratios of the projection images as the resolution of the projection images and the resolution of the vertebra images in the experimental data set could differ non-linearly.
For all the vertebrae provided in the data set, it was seen that the resolution of the vertebrae images in the data was much higher than that of the projection images of 3D models. Hence, in order to make the projection images comparable in size to that of the vertebrae in the dataset, it was required to resize the projection images for each vertebra in the dataset. The length of the posterior side and the length of the superior side are chosen as representative of the aspect ratios of the projection of the 3D models of lumbar vertebrae. The length of the posterior side of the lumbar vertebra in the projection image D postDist 3 and the length of the superior side D topDist 3 are calculated for each of the projection images, i P , for all the five 3D models. In order to calculate D postDist 3 and D topDist 3 , first the corner pixels of the projection of the 3D vertebra model in the images i P are computed. Using, the corner pixels, the lengths of the sides can be calculated, Figure 3-12 illustrates the lengths of the posterior and superior sides that are calculated. Also, using the corner pixels the slope of the posterior side D slopePost 3 for the projected vertebra i P was computed.
3.3. ALGORITHM TO COMPUTE ORIENTATION CHARACTERISTICS OF LUMBAR VERTEBRAE
3.3.1. Determination of vertebral boundary
For each lumbar vertebra in the data set we are provided with a text file which consists of ( ) y x, pairs of coordinates of 36 points along the boundary of the vertebra. These 36 points are marked along vertebra boundary by experienced radiologists and domain experts. In order to determine the orientation characteristics of the lumbar vertebra by comparison to the 3D models, we need to compute the shape of the lumbar vertebra. A second order B-spline [2] algorithm was applied to the set of 36 coordinates which computes a set of connected points that make up the complete vertebra boundary. An image fill operation was performed upon the set of connected boundary pixels to get the completely filled vertebra as shown in Figure 3-13. If ) , ( y x L L f f = denotes the filled vertebra, then f L was defined as,
3.3.2. A customized algorithm for resizing images
Each lumbar vertebra f L needs to be compared with all the projections i P of its corresponding 3D model in order to compute the best matching 3D projection for that lumbar vertebra to determine its orientation characteristics. The resolution of each lumbar vertebra and the resolution of the projections i P of the 3D models were expected to vary non-linearly. It was seen that the resolution of lumbar vertebrae in the provided data set was much larger compared to the resolution of the projection images. Hence, the projection images are to be resized by up–sampling. Also, the aspect ratios of projections of 3D models and of the lumbar vertebrae are different, that is, the size of projections along the posterior edge and the size of the projections along the superior edge vary by different factors to that of the lumbar vertebrae images. Therefore, projection images are to be resized by a factor M along one dimension and a different factor N along the other dimension. The resize algorithm provided in Matlab ® was customized so as to resize the rows of the input image by a factor M and the columns of the input image by a factor N . This was done by first resizing the projection image only for the row dimension by a factor M , and then next, the resulting image was then resized only for the column dimension by a factor N to produce the resized projection image. Hence, the resizing of the projection image i P using different resizing factors M and N could be performed to get the resized projection image 1 R P .
For each lumbar vertebra f L , the resize operation was to be performed for each projection i P . The resizing operation was the dominating factor in determining the computation time of the entire process of determining the orientation characteristics of the vertebra f L . Hence, an attempt was made to optimize the resizing operation in order to reduce its computation time. Since, the images to be resized are binary images, the resizing of projection images was performed using only the boundary points of the object in the image. This resizing operation was performed using different resizing factors along the row and column dimension. The optimization in resizing images is explained by the following procedure. First, for the projection image i P , let M and N be the row and column scaling factors, respectively, between the projection image i P and vertebra image. Second, boundary extraction [17] was performed on the projection image i P so as to produce t P , the boundary of the projection in the image with thickness of one pixel. The boundary extraction can expressed as a set difference operation given by Gonzalez et al. [17] as,
where, ( ) B , P erode i ˆ refers to the erosion operation of i P with Bˆ , and Bˆ refers to the structuring element taken as,
Third, the customized resize algorithm was applied to t P using M and N as resizing factors to produce a resized boundary of the projection t R P . Fourth, an image fill operation was performed on t R P to generate the resized projection of the 3D model, 2 R P . 1 R P and 2 R P refer to the same resized projection image, but are computed differently. 1 R P was computed by applying the customized resize algorithm with resizing factors M and N , while 2 R P was computed by extracting the boundary of the projection i P , next applying the resizing operation with resizing factors M and N , and lastly performing an image fill to produce 2 R P . The computation time for both the procedure were recorded over a randomly chosen test set of i P as shown in Table 2-1. The results show that the second method of resizing projection images has better computation time. The results show that the second method of resizing images consistently provided an approximate reduction in computation time by 40% on an average for the resize operation over the randomly chosen projection images. The resizing operation directly depends upon the number of points in an image to be resized. Hence, the second method performed faster as the number of points in the projection image was reduced by only considering the points at the boundary of the projection.
Table 3-1: Computation times of resizing images for the investigated resizing functions.
| Resizing factors (M, N) used to resize P i | Time to compute P (sec.) R1 | Time to compute P (sec.) R2 |
|---|---|---|
| (2.389, 1.734) | 0.235 | 0.125 |
| (2.528, 1.734) | 0.234 | 0.156 |
| (2.583, 2.037) | 0.282 | 0.141 |
| (3.35, 2.064) | 0.281 | 0.203 |
| (5.024, 3.169) | 0.437 | 0.297 |
| (5.452, 2.843) | 0.39 | 0.265 |
| (2.478, 1.536) | 0.25 | 0.156 |
| (2.691, 1.956) | 0.234 | 0.172 |
3.3.3. Algorithm to compute the best matching 3D projection for each lumbar vertebra
In order to compute the best matching 3D projection for each lumbar vertebra, the operations to be performed on the images can take large computation time. Since most of the operations to be performed on images directly depend on the number of pixels in the image, the images are thus cropped to optimize the computation time. The minimum required resolution was calculated to be imgCols imgRows × and was set as the resolution for all the images required during computation of intermediate and final results for the given experimental case. The filled vertebra ) , ( y x L f was cropped to the size imgCols imgRows × to get the set of points ) , ( y x L , where imgRows x ≤ ≤ 1 and imgCols y ≤ ≤ 1 .
The aspect ratios of the vertebra L are calculated. For this the coordinates the off the corner pixels of the vertebra L are computed. Using the coordinates of the corner pixels, the length of the posterior side postDist and the length of the superior side topDist are calculated. Using the coordinates of the corner pixels of the posterior side, the slope of the posterior side slopePost of vertebra was also calculated. The value of slopePost was used to rotate the vertebra defined by the set of points in L such that the posterior side of the resulting vertebra was exactly vertical. The resulting vertebra was then translated (shifted) such that the centroid ( ) L L y x , was positioned at the center of the image which corresponds to the position ⎟⎠ ⎞ ⎜⎝ ⎛ 2 imgCols , 2 imgRows . Let the set of points in the translated lumbar vertebra be denoted by R L .
where, imgRows x ≤ ≤ 1 , imgCols y ≤ ≤ 1 , and the centroid of R L was given by,
The following process explains the process of computing the best matching projection of 3D models for the vertebra R L . The vertebra R L was to be compared with the projections of all the combinations of azimuth and elevation angles ( ) el_angle az_angle, of the 3D vertebra model i c D corresponding to the type of vertebra L1-L5. For each combination of ( ) el_angle az_angle, , we retrieve the projection image i P of 3D model i c D and the following procedure was carried out. First, the aspect ratios, D postDist 3 and D topDist 3 , and the slope of the posterior side, D slopePost 3 , for the projection i P were retrieved, as explained in sub-section 3.2.2. Second, using the value of D slopePost 3 , the projection image i P was rotated such that the posterior side of the projection becomes exactly vertical generating a rotated form of the projection θ P . Note that θ P was just the rotated form of i P , hence the aspect ratios and other characteristics of i P and θ P remain the same. Third, the resizing factors were calculated using the values D postDist 3 and D topDist 3 for the projection θ P and the values postDist and topDist for the lumbar vertebra R L . The resizing of the projection θ P was necessary because the resolution of θ P and R L can differ. All of the vertebra cases explored in our experimental data set showed that the resolution of R L was much higher than that of θ P . Therefore, resizing of θ P was performed by up-sampling to make the resolution of θ P suitable for comparing with vertebra R L . For all the projections for different combinations of ( ) el_angle az_angle, the resolutions differed non-linearly. Accordingly, the resizing of projection images was performed at run-time for each vertebra case R L to be studied. The resizing factors calculated are,
Fourth, the projection θ P was resized using the customized resizing operation explained in sub-section 3.3.2 to produce the resized projection image. The set of points in the resized projection image are then translated such that its centroid ( ) P P y x , lies at the center of the image, then its image size was reduced to imgCols imgRows × by cropping out background pixels from the image boundaries. Let the resized projection image be R P . The centroid for R P was ( ) ⎟⎠ ⎞ ⎜⎝ ⎛ = 2 , 2 , imgCols imgRows y x P P . Fifth, the projection image R P and the vertebra R L were compared by taking an exclusive-OR, defined as,
Figure 3-14 shows the exclusive-OR obtained for the lumbar vertebra in Figure 3-13 of type L1 and its best matching projection of the cropped 3D model 1 c D . The exclusive-OR was representative of the comparison between the lumbar vertebra R L and the 3D projection, R P , at a particular combination of viewing angles ( ) el_angle az_angle, . Sixth, the area of region described by the set points in X was calculated and is denoted by X A . The above procedure was repeated for each combination of ( ) el_angle az_angle, for a lumbar vertebra f L . Hence, we get a set of values corresponding to X A for each projection corresponding to a combination pair of ( ) el_angle az_angle, . A table xorAreas was maintained that maps each combination ( ) el_angle az_angle, of the projections to the area of the exclusive-OR image, X A computed for those viewing angles.
Now, the best matching projection op P of the 3D model, { } i op P P ∈ , for the vertebra f L was determined based on which projection i P of the 3D model had the least exclusive-OR area found from the table xorAreas . The viewing angles of the 3D model corresponding to the best matching projection describe the orientation characteristics of the lumbar vertebra f L . Let op X denote the exclusive-OR for best matching projection op P , ( ) elOptimal azOptimal, be the viewing angles of the 3D model corresponding to the projection op P and the area of the exclusive-OR op X can found as, ( ) elOptimal azOptimal, xorAreas A op X = . Thus, the orientation characteristics for the lumbar vertebra f L are computed and, op X , ( ) elOptimal azOptimal, and op X A are computed for each lumbar vertebra f L and are saved. The following algorithm summarizes the process of calculating orientation features for lumbar vertebrae.
Inputs:
Shape36Filename
The text file containing the coordinates of 36 points on the boundary of the vertebra.
ModelInfoFilename The file where aspect ratios of projections are stored.
Outputs:
azOptimal elOptimal
The azimuth angle of orientation for the vertebra of the given case.
The elevation angle of orientation for the vertebra of the given case.
Algorithm:
1. ← in L Read the 36 coordinates of vertebra boundary points from the file Shape36Filename.
2. ( ) in b L Spline B L − ←
3. ( ) b f L Image_fill L ←
4. Calculate ( ) imgCols imgRows , , which are the minimum dimensions of the image required to represent the given vertebra f L .
5. ( ) ← bottom right, left, top, Calculate corner pixels of the of vertebra f L .
6. Calculate length of posterior side and length of superiorside,
7. Calculate the slope of the posterior side of vertebra f L ,
8. Compute L with the following steps; using the value of slopePost rotate f L such that the posterior side was vertical, crop the image to imgCols imgRows × , next translate (shift) the points in the vertebra image such that the centroid lies at ⎞ ⎛ imgCols , imgRows .
9. index , is the value indicating the type of lumbar vertebra L1-L5 for the given case.
10. ( ) { } 40 t 0 t 0.5 100 - azRange ≤ ≤ + = |
11. ( ) { } 40 t 0 t 0.5 10 - elRange ≤ ≤ + = |
12. For each azRange angle az ∈ _
12.1. For each elRange angle el ∈ _
12.1.1. Retrieve projection i P for the angles ( ) el_angle az_angle, for the 3D model corresponding to index .
12.1.2. Compute θ P , by rotating i P such that posterior side of the projection was vertical.
12.1.3. Retrieve aspect ratios D postDist3 and D topDist3 , from the file ModelInfoFilename corresponding to ( ) el_angle az_angle, and index .
12.1.4. Resizing factors,
12.1.5. ( ) N M P Resize P θ R , , ←
12.1.6. Crop R P to size imgCols imgRows × and translate the points in the projection such that the centroid of the projection lies at ⎞ ⎛ imgCols , imgRows .
12.1.7. Compute exclusive-OR X between lumbar vertebra and current projection,
12.1.8. ( ) X Area A X ←
12.1.9. ( ) X A el_angle az_angle, xorAreas ←
13. ( ) xorAreas minimum minArea ←
14. Find the values, azRange azOptimal ∈ and elRange elOptimal ∈ such that ( ) minArea elOptimal azOptimal xorAreas = , .
15. Save X and R P corresponding to ( ) elOptimal azOptimal, .
3.4. EXPERIMENTS PERFORMED
3.4.1. Experimental Data
The experimental data was provided by the National Library of Medicine (NLM), which contained the following:
1) A data sheet consisting of a table where each row was a tuple τ, ) o , o , t, t , c , c (name, τ I S I S I S = . Here, the attribute name contained a string for the vertebra name. The attributes I c and S c have values true/false indicating the presence of claw on the superior and inferior sides of the vertebra respectively. The attributes S t and I t have values true/false indicating the presence of traction on the superior and inferior sides of the vertebra respectively. Lastly, the attributes S o and I o have enumerated labels { } severe moderate, slight, indicating a grade for the presence of anterior osteophytes on the superior and inferior sides of the vertebra.
2) For each vertebra in the data sheet, a text file was provided which contained values representing ( ) y x , coordinates of 36 points along the vertebral boundary for the corresponding vertebra.
This study aims at discriminating lumbar vertebrae for the presence of traction and hence, only the truth labels for the presence of traction are required and so, the tuples in the data sheet are reduced to ) t , t (name, τ I S = . The data set provided consisted of a total of 261 lumbar vertebrae for which the proposed orientation characteristics were calculated in order to facilitate in determining the presence of traction in the lumbar vertebrae. The 36 points along the vertebral boundary for each vertebra were provided to NLM by experienced radiologists and domain experts. For the entire dataset, a new class of attributes t was introduced, which had values labeled true/false , where t was indicative of the presence of traction for that lumbar vertebra. The attribute class, t , indicative of the presence of traction was assigned a value true , if either s t , the attribute class for presence of traction at superior side or I t , the attribute class for presence of traction at the inferior side had a value true ; otherwise it was assigned the value false .
The data set was stratified by the type of lumbar vertebrae, which was L1 – L5. It was observed that the data set of 261 lumbar vertebrae consisted of 12 L1s, 42 L2s, 75 L3s, 78 L4s and 54 L5s. The 261 entries in the data set when grouped by the target variables t showed the following distribution.
Table 3-2: Distribution of lumbar vertebrae cases based on type of lumbar vertebra.
| L1 | 9/3 |
|---|---|
| L2 | 21/21 |
| L3 | 35/40 |
| L4 | 27/51 |
| L5 | 17/37 |
The features 5 1 F F − as explained in [2, 3] are calculated for each lumbar vertebrae provided in the data set. The features 5 1 F F − based on the convex hull of the vertebrae were developed in order to discriminate lumbar vertebra for the presence of traction. These are the same features as explained in section 2.1 The feature 5 1 F F − were also calculated the optimal projection op P , obtained for each lumbar vertebra in the data set. The optimal projections op P describe the orientation characteristics of the lumbar vertebrae, as explained in sub-section 3.3.3. Let the features calculated for the optimal projections be denoted by p p F F 5 1 − .
3.4.2. Training data and test data
In order to generate the training set, we integrate the features p p F F 5 1 − calculated for the optimal projection op P for each lumbar vertebra in the data set and the optimal orientation characteristics with the data provided by NLM. Hence, the integrated data set obtained consisted of a set of tuples of the form, ( ) elOptimal azOptimal, , F , F , F , F , F name, τ p 5 p 4 p 3 p 2 p 1 m = , where, azOptimal and elOptimal are the orientation characteristics and p p F F 5 1 − correspond to the features calculated for the optimal projection op P for the lumbar vertebra in the data set corresponding to name .
To generate the test data set, we integrate the features 5 1 F F − calculated for the lumbar vertebrae in the data set with the optimal orientation characteristics computed for each lumbar vertebra and the truth labels indicating the presence of the traction as provided in the data by NLM. Hence, the test data set consisted of set of tuples of the form, t) elOptimal, azOptimal, , F , F , F , F , F (name, τ 5 4 3 2 1 n = ; where t was the label indicating the presence of traction, as explained in sub-section 3.4.1 and 5 1 F F − are the features calculated for the lumbar vertebra corresponding to name .
3.4.3. Classification
The classification problem here involved generating a model that can classify a given case of lumbar vertebra for the presence of traction into classes traction/no traction. To generate the trained model for each model L1 – L5 the following procedure was applied to the corresponding training sets. First, for each feature p F in the set of features p p F F 5 1 − of the training data, the mean and the standard deviation values, μ and σ were calculated for all features p F in the feature set 5 1 F F − of the training set.
Second, the features are normalized by subtracting its mean from each feature and dividing by its standard deviation. For each feature p F in the feature set, we calculate the standardized feature norm p F as, { } norm p norm norm p f , F f f F ∃ ∈ ∀ = | , where norm f was calculated as, σ μ - f f norm = , for norm p norm F f ∈ and p F f ∈ . Third, the number of clusters for the class no traction was found using subtractive clustering [12, 13]. All the features p F were calculated based on the projection images of 3D models which are representative of a normal lumbar vertebra without any traction. Hence, all the tuples in p F belong to the class no traction. Fourth, using the normalized featured vectors for the training data and the number of clusters estimated for each class, K-means clustering [14,15] was performed to determine the cluster centers for the class no traction. The cluster centers for the training set corresponding to each lumbar vertebra L1 – L5 are saved along with their corresponding mean and standard deviation values of each feature.
For each of the feature vectors in the test set corresponding to each lumbar vertebra L1 – L5, nearest centroid classification was performed. First, each feature F in the test set 5 1 F F − was standardized using z-score score normalization. For each feature F in the feature set 5 1 F F − , using the mean and standard deviation values calculated and from the training set features, we calculate the normalized feature norm F as, { } norm norm norm f F, f f F ∃ ∈ ∀ = | , where norm f was calculated as, σ μ - f f norm = , for norm p norm F f ∈ and p F f ∈ . Second, the cluster centers calculated and saved for the training set are retrieved. Third, for each normalized feature vector, minDist the minimum of the Euclidean distance to each of the cluster centers was calculated. Fourth, the ordered pair of ( ) minDist name, was latched to either the list st abnormalLi or normalList depending upon the label t indicating the presence or absence of traction for this feature vector. Fifth, the two lists of Euclidean distances are input to a routine which computes the area under the Receiver Operating Characteristics (ROC) curve [18] based on the true positive and true negative cases obtained for the test set. True positive refers to the test case vertebrae with traction being classified correctly and true negative refers to the test case vertebrae with traction being classified incorrectly. Sixth, the area under the ROC curve is recorded. This process is repeated for all the five lumbar vertebrae L1 – L5 providing the value of the area under the respective ROC curves.
3.5. RESULTS AND DISCUSSION
3.5.1. Experimental Results
The results obtained from the experiments performed in section 3.4 to classify lumbar vertebrae as traction/no traction using the convex hull based size invariant features is discussed below. The experiments were performed over the provided data set of 261 lumbar vertebrae whose distribution is provided in Table 3-2. The classification was performed by generating a training model using K-means clustering over the sizeinvariant features computed for the best matching projection of each lumbar vertebra in the data set. The test set was generated by computing the size-invariant features using the lumbar vertebra x-ray images for each lumbar vertebra in the data set. Hence, the training set consisted of 261 tuples generated using the best matching projection of the provided lumbar vertebrae and the test set consisted of 261 tuples generated using the x-ray images of the lumbar vertebrae.
Table 3-3: Areas obtained under Receiver Operating Characteristic (ROC) curve for classifying lumbar vertebra L1-L5 for traction, respectively.
| Type of Lumbar vertebra | Area under Receiver Operating Characteristic (ROC) curve |
|---|---|
| L1 | 0.89 |
| L2 | 0.68 |
| L3 | 0.6 |
| L4 | 0.53 |
| L5 | 0.6 |
3.5.2. Conclusions
In this research, methods were investigated and implemented to model lumbar vertebra in three dimensional structures. Several conclusions can be drawn from the approaches adopted in this research undertaking. First, computed tomography (CT) scan images were used to generate three dimensional models of lumbar vertebrae. The cross sectional CT scan images were used to produce layered slices of the lumbar vertebrae obtained by segmentation which could generate the 3D models. Hence, CT scan images could be used to generate 3D models of lumbar vertebrae successfully in order to study their shapes and structures.
Second, in order to compare the 3D models of lumbar vertebrae with 2D images from x-ray images of lumbar vertebrae, the projections of 3D models were computed at different viewing angles. This enabled comparing the 3D models with the x-ray image vertebrae. Indexing and storing of these projection images was performed, so that the computation times for each x-ray image were improved in overall calculation of orientation characteristics of each case.
Third, a 3D model was generated from the CT scans provided for a particular case where the lumbar vertebrae did not show any presence of traction. Hence, the 2D projection images of the 3D models for the lumbar vertebrae L1 – L5 were used to represent normal vertebrae. The shape and size invariant features calculated over the optimal projection images of each case were used to represent the characteristics of normal vertebrae which were input to a K-Means clustering algorithms to provide clustering-based models for vertebrae L1 – L5 to represent normal vertebrae. The shape and size invariant features calculated for the images obtained from x-ray images were used for testing. The experimental results did not show that the projections of the 3D model used provided features that were capable of distinguishing normal lumbar vertebrae from cases where traction was present for each type of lumbar vertebrae L1 – L5 vertebrae. The classification results for L1 were more encouraging than for the other lumbar vertebra cases for L2 – L5. However, there were only 12 lumbar vertebra x-ray images in the provided data set corresponding to L1 to support the accuracy of the model in predicting the presence of traction in lumbar vertebrae.
Fourth, it was observed that the 3D models and the resulting projection images had superior and inferior sides of the vertebra with convex edges. A majority of the x-ray images of lumbar vertebra showed superior and inferior sides having more flat like or concave edges. One of the major difficulties in generating the 2D projections representative of a vertebra based on the 3D CT scan-based model and the x-ray image vertebra is the resolution disparity. The CT scan images and the resulting projections of 3D models were much smaller in size and varied non-linearly in row and column aspect with the corresponding x-ray image vertebra. Several variations of resizing functions have been investigated for generating the 2D projections of the 3D models of the vertebra having similar dimensions to that of the x-ray image vertebrae for comparison using the exclusive–OR approach for orientation determination.
Fifth, another consideration or limitation in the experimental results presented is the relative limited data set for each vertebra in generating clustering models to represent them. The shapes of the lumbar vertebrae L1 – L5 differ. Model generation and clustering analysis for each case was considered separately. The distribution of the lumbar vertebrae in the provided data set is given by Table 3-2. It can be observed that the provided data set for each case is limited and therefore the clustering models generated for each are relatively inefficient in classifying lumbar vertebrae for presence of traction.
59
A APPENDIX
Read-Me file for the project 'Discrimination of Cervical Vertebrae for presence of Claw, Traction and Anterior Osteophytes'
A.1. MATLAB to C++ conversion
The document describes the procedure which allows calling MATLAB routines from C/C++. The method used here was to create a wrapper function around MATLAB routines and then creating Dynamic Linked Libraries for it to be used in C/C++.
We divided the procedure into two major steps:
1. Creating the Dynamic Linked Libraries for using the MATLAB routines.
2. Creating the workspace in C/C++ developer environment with the libraries included.
A.1.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
The Dynamic Linked Libraries are created through the 'mcc' command in the MATLAB compiler. The syntax of the command used to create the DLL files was:
```
mcc -W lib:<lib_name> -T link:lib <file1> <file2> … <fileN>
```
where,
- The option '-W lib:<string>' creates wrapper functions for each .m file into a library.
- file1, file2,…,fileN are names of the .m MATLAB files stored in the same directory. These .m files are supposed to define the MATLAB routines which we want to call from C/C++.
- 'lib_name' was the name of the library that we wish to create.
- The option '-T link:lib' specifies the target to be a library file.
After executing the above command several files are generated and stored in the current directory of the MATLAB compiler. The description of these files was given below:
1. C/C++ Header and Source code files:
A wrapper C source file (here <file_name>.c) which contains a function of the library providing the C interface to each of the files <file1.m>, <file2.m>….<fileN.m>. A header (here <file_name>.h) was also generated which contains the prototype for each of the export function defined in the wrapper C source file. This header file must be included in all applications that need to these exported functions. Another C source file <file_name>_mcc_component_data.c was generated which includes all necessary information about path and initializations that are need by the MATLAB compiler or the MCR to use the library.
2. Module definition file:
A module definition file (.def) was created to provide all the information about the export functions. This file was used to link to the library.
3. Component Technology File (CTF):
A Component Technology File (CTF) file was an archive of all MATLAB related files (M-files) that are encrypted and together provided a deployable package.
4. Dynamic Link Library (.dll) file:
This was the shared library (binary) that was created. In this example a file with name <file_name>.dll will be generated and was loaded each time the calling function makes a call to any of the routines defined in it. For Operating Systems other than Windows, a different kind of a shared library may be required.
Several others exports file are created along with the above files. All of the above 8 files that are generated are stored in the same directory which was the current working directory in MATLAB while running the 'mcc' command. As far as the process of MATLAB to C++ code conversion goes, it was just required to include these files in the workspace of C++.
A.1.2. Creating the workspace in C/C++ developer environment with the libraries included:
The first step here was to open a C/C++ developer environment like Microsoft Visual C++ and creating a new Console application project (workspace).
In this new project, we include all of the files generated by the 'mcc' command; it was a good idea to copy all of these files to the workspace directory of this project. The C++ code which was to be written here was the code which will provide the input parameters (if any) to the MATLAB routines to be called.
Consider a library 'libcal' generated for a M-File with function defined as : function[o1 o2] = calculate(i1, i2, i3)
To call such a function defined in an M-file the following need to be done in the C++ program:
1) Include all libraries related to libcal, which were generated by the 'mcc' command.
2) Declare a variable in C++ for each of the input and output parameters, and also initialize or derive values for the input parameters.
Example: double I1, I2, I3, O1, O2;
3) Now declare a variable pointer with 'mxArray*' for each of them, this was a datatype used to store array for passing to MATLAB.
Example: mxArray *in1, *in2, *in3, *in4, *in5, *out1, *out2;
4) Allocate appropriate space for each of these mxArray pointers.
Example: in1=mxCreateDoubleMatrix(1,1,mxREAL);
out1=mxCreateDoubleMatrix(1,1, mxREAL);
where, 1,1 -> signify the [row x column] dimensions of the array mxREAL -> specifies that values to be real numbers.
5) Copy contents of variables I1, I2, I3 into in1, in2, in3 which will be the input values to the MATLAB routine 'calculate'.
Example: memcpy(mxGetPr(in1), &I1, sizeof(double));
where, memcpy() was a function in C++ which copies a block of memory from one memory location to another which was defined in the
library string.h.
&I1, was the memory location of the input value I1. sizeof(double), specifies the amount of bytes to be copied.
6) Now, call the function 'libcalInitialize()' (defined in the library) to start the MATLAB compiler or the MCR.
7) Call the function 'mlfcalculate(2, &out1, &out2, in1, in2, in3)', which also defined in the libcal library. This calls the 'calculate' function in the M-file and results are stored in out1, out2.
8) Note the difference in the definition of calculate function in M-file and its C++ counterpart 'mlfcalculate'. The output parameters of calculate routine in M-file are pointers which appear in the parameter list of the 'mlfcalculate' function. The first parameter of the 'mlfcalculate' function specifies the number of parameters which represent the left hand side variables in the 'calculate' routine and the remaining are the right hand side variables.
9) Now, call the fuction 'libcalTerminate (defined in the library) to close the MATLAB compiler or the MCR.
10) Now, the results from the MATLAB routine are stored in out1, out2 which are of data type mxArray*. So, we copy the contents of these variables into our C++ variables O1, O2 which are of type double.
Example: memcpy(&O1, mxGetPr(out1), sizeof(double));
11) De-allocate space to all the mxArray pointers (and any other pointers also). Freeing space allocated to mxArray pointers was done by the call 'mxDestroyArray(mxArry*);
Example: mxDestroyArray(in1);
12) Now, compile and run the C++ project.
A.2. K-Means Classifier for detecting Claw
The K-Means Classifier for detecting Claw was a project which calculates features on single vertebra and then applies K-Means clustering technique to classify it as NORMAL or ABNORMAL for the presence or absence of claw.
The initial workspace that was provided included the following files:
- compute_convex_hull_features_36Points.m
- compute_convex_hull_features_6features.m
- mergepts.m
- moment_norm.m
- connectspline.m
- kmeans_2class_kNearest_subcluster.m
- computeVectorDistance2class.m
The 'compute_convex_hull_features_36Points.m' was MATLAB script which read the co-ordinates of vertebra points from .shp36 file. This was done over a large number of files stored in the local directory. For every set of such vertebra points, the 'compute_convex_hull_features_6features' function was called from its corresponding M-file 'compute_convex_hull_6features.m'. This function in all calculates six features and the image area of the vertebra and returns to the calling script. The features calculated for all the vertebrae are then stored in an Excel Spread Sheet (xls). The function defined in mergepts.m and connectspline.m are used in the compute_convex_hull_features_36Points.m and the function defined in moment_norm was used by the compute_convex_hull_6features.m.
The 'kmeans_2class_kNearest_subcluster.m' was a MATLAB script which read the features of the vertebrae from the Excel Spread Sheet. It also read variables from the 'Parameters_claw.mat' file (MAT-file) which stored the trained clusters for classification of vertebrae on the basis of presence or absence of Claw. It also included the mean and standard deviation values for all features. Each set of features (corresponding to one vertebra) are normalized using the mean and standard deviation values from the MATfile. This normalized set of features along with the cluster centers for classifications are given as input to the function defined in 'computeVectorDistance2class.m'. In this function the actual classification takes place. With the normalized features it checks the distances of each feature to it
For the project KMeans Classifier for detecting claw, the above MATLAB code needed to be converted to C++. It was also required that the classification be done for one given vertebra at a time. The working of the code explained above worked on a large set of vertebrae images in Batch-mode. Hence, the two files that were changed from the above code were:
- compute_convex_hull_features_36Points.m
- kmeans_2class_kNearest_subcluster.m
The changes made to compute_convex_hull_features_36Points.m, so that it worked on a single vertebra were made and stored in the same file. The code of kmeans_2class_kNearest_subcluster.m was rewritten in C++ which worked upon a set of features for only one vertebra. This code then calls the computeVectorDistance2class function.
Also, in the provided workspace calculated the six features were calculated and stored in an Excel Spread Sheet. Then, the Kmeans classifier script was run for classifying by reading back the features from the Excel Spread Sheet. This project calculates the six features and then run the classification program on it, thus eliminating the use the Excel Spread Sheet.
A.2.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
All the files described above are kept in a single folder. In the MATLAB compiler, set the current working directory to the directory where all the files are stored and then, run the command:
mcc -W lib:libfcmc -T link:lib compute_convex_hull_features_36Points computeVectorDistance2class
After running this command, the files that are generated in the current directory are:
- libfcmc.c
- libfcmc.h
- libfcmc_mcc_component_data.c
- libfcmc.dll
- libfcmc.lib
- libfcmc.exports
- libfcmc.exp
- libfcmc.ctf
A.2.2. Creating the workspace in C/C++ developer environment with the libraries included:
In Microsoft Visual Studio .NET 2005, create a new Win32 Console project. Include the following files in the source code:
```
#include<iostream> #include<stdlib.h> #include<conio.h> #include<math.h> #include<string.h> #include"mat.h" #include"libfcmc.h" #pragma comment(lib, "libmat.lib") #pragma comment(lib, "libmx.lib") #pragma comment(lib, "libfcmc.lib")
```
The C++ implementation was divided into these parts:
1) Reading the MAT-file and extracting the cluster centers for classification and extracting the mean and standard deviation values for these features.
67
2) Reading the .shp36 files to get the vertebra points and then calling an appropriate MATLAB routine to calculate features.
3)
Calling the MATLAB routine to classify for the presence or absence of claw based on the values of these features.
The file name of the .shp36 file was an input parameter taken as a command line argument. The filename to be passed here was to be the absolute path on the local
machine or a relative path can be given if the .shp36 file in stored in the same or one the subfolders of the current workspace. Hence, the process can be worked on any .shp36 file
just by passing different file names at different calls.
A class called 'Data' was created which stores all the values of features for a vertebra also it stores all the values extracted from the MAT file, which are the centers of
the classification clusters and the mean and standard deviation values of the features.
Several functions are defined that work on these member variables. Keeping a separate class for the features values and for the classification parameters was considered
redundant as the program was just suppose to work on one given vertebra at a time.
Since, there are more than one function calls to the MATLAB routines, the initialization and termination of the MATLAB compiler are done close to the entry and
exit points of the C++ program.
The call to the program was given on the command prompt as:
C:\<WorkSpaceDir>\KMeansClassifier_Claw C:\vertebra\C01235_3.shp36
A.3. K-Means Classifier for detecting Traction
The K-Means Classifier for detecting Traction was a project which calculates features on single vertebra and then applies K-Means clustering technique to classify it as NORMAL or ABNORMAL for the presence or absence of traction.
The initial workspace that was provided included the following files:
- compute_convex_hull_features_36Points.m
- compute_convex_hull_features_6features.m
- mergepts.m
- moment_norm.m
- connectspline.m
- kmeans_2class_kNearest_subcluster.m
- computeVectorDistance2class.m
The 'compute_convex_hull_features_36Points.m' was MATLAB script which read the co-ordinates of vertebra points from .shp36 file. This was done over a large number of files stored in the local directory. For every set of such vertebra points, the 'compute_convex_hull_features_6features' function was called from its corresponding M-file 'compute_convex_hull_6features.m'. This function in all calculates six features and the image area of the vertebra and returns to the calling script. The features calculated for all the vertebrae are then stored in an Excel Spread Sheet (xls).
The function defined in mergepts.m and connectspline.m was used in the compute_convex_hull_features_36Points.m and the function defined in moment_norm was used by the compute_convex_hull_6features.m.
The 'kmeans_2class_kNearest_subcluster.m' was a MATLAB script which read the features of the vertebrae from the Excel Spread Sheet. It also read variables from the 'Parameters_traction.mat' file (MAT-file) which stored the trained clusters for classification of vertebrae on the basis of presence or absence of Traction. It also included the mean and standard deviation values for all features. Each set of features (corresponding to one vertebra) are normalized using the mean and standard deviation values from the MAT-file. This normalized set of features along with the cluster centers for classifications are given as input to the function defined in 'computeVectorDistance2class.m'. In this function the actual classification takes place. With the normalized features it checks the distances of each feature to it
For the project KMeans Classifier for detecting traction, the above MATLAB code needed to be converted to C++. It was also required that the classification be done for one given vertebra at a time. The working of the code explained above worked on a large set of vertebrae images in Batch-mode. Hence, the two files that were changed from the above code were:
- compute_convex_hull_features_36Points.m
- kmeans_2class_kNearest_subcluster.m
The changes made to compute_convex_hull_features_36Points.m, so that it worked on a single vertebra were made and stored in the same file. The code of kmeans_2class_kNearest_subcluster.m was rewritten in C++ which worked upon a set of features for only one vertebra. This code then calls the computeVectorDistance2class function.
Also, in the provided workspace calculated the six features were calculated and stored in an Excel Spread Sheet. Then, the Kmeans classifier script was run for classifying by reading back the features from the Excel Spread Sheet. This project calculates the six features and then run the classification program on it, thus eliminating the use the Excel Spread Sheet.
A.3.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
All the files described above are kept in a single folder. In the MATLAB compiler, set the current working directory to the directory where all the files are stored and then, run the command:
```
mcc -W lib:libfcmt -T link:lib compute_convex_hull_features_36Points computeVectorDistance2class
```
After running this command, the files that are generated in the current directory are:
- libfcmt.c
- libfcmt.h
- libfcmt_mcc_component_data.c
- libfcmt.dll
- libfcmt.lib
- libfcmt.exports
- libfcmt.exp
- libfcmt.ctf
A.3.2. Creating the workspace in C/C++ developer environment with the libraries included:
In Microsoft Visual Studio .NET 2005, create a new Win32 Console project. Include the following files in the source code:
```
#include<iostream> #include<stdlib.h> #include<conio.h> #include<math.h> #include<string.h> #include"mat.h" #include"libfcmt.h" #pragma comment(lib, "libmat.lib") #pragma comment(lib, "libmx.lib") #pragma comment(lib, "libfcmt.lib")
```
The C++ implementation was divided into these parts:
1) Reading the MAT-file and extracting the cluster centers for classification and extracting the mean and standard deviation values for these features.
71
2) Reading the .shp36 files to get the vertebra points and then calling an appropriate MATLAB routine to calculate features.
3)
Calling the MATLAB routine to classify for the presence or absence of traction based on the values of these features.
The file name of the .shp36 file was an input parameter taken as a command line argument. The filename to be passed here was to be the absolute path on the local
machine or a relative path can be given if the .shp36 file in stored in the same or one the subfolders of the current workspace. Hence, the process can be worked on any .shp36 file
just by passing different file names at different calls.
A class called 'Data' was created which stores all the values of features for a vertebra also it stores all the values extracted from the MAT file, which are the centers of
the classification clusters and the mean and standard deviation values of the features.
Several functions are defined that work on these member variables. Keeping a separate class for the features values and for the classification parameters was considered
redundant as the program was just suppose to work on one given vertebra at a time.
Since, there are more than one function calls to the MATLAB routines, the initialization and termination of the MATLAB compiler are done close to the entry and exit points of the C++ program.
The call to the program was given on the command prompt as:
C:\<WorkSpaceDir>\KMeansClassifier_Traction C:\vertebra\C01235_3.shp36
A.4. K-Means Classifier for detecting Anterior Osteophytes
The K-Means Classifier for detecting Osteophytes was a project which calculates features on single vertebra and then applies K-Means clustering technique to classify it as NORMAL or ABNORMAL (Severe or Moderate) for the presence or absence of Osteophytes.
The initial workspace that was provided included the following files:
- compute_convex_hull_features_36Points.m
- compute_convex_hull_features_6features.m
- mergepts.m
- moment_norm.m
- connectspline.m
- kmeans_2class_kNearest_subcluster.m
- computeVectorDistance3class.m
The 'compute_convex_hull_features_36Points.m' was MATLAB script which read the co-ordinates of vertebra points from .shp36 file. This was done over a large number of files stored in the local directory. For every set of such vertebra points, the 'compute_convex_hull_features_6features' function was called from its corresponding M-file 'compute_convex_hull_6features.m'. This function in all calculates six features and the image area of the vertebra and returns to the calling script. The features calculated for all the vertebrae are then stored in an Excel Spread Sheet (xls).
The function defined in mergepts.m and connectspline.m was used in the compute_convex_hull_features_36Points.m and the function defined in moment_norm was used by the compute_convex_hull_6features.m.
The 'kmeans_2class_kNearest_subcluster.m' was a MATLAB script which read the features of the vertebrae from the Excel Spread Sheet. It also read variables from the 'Parameters_Osteophytes.mat' file (MAT-file) which stored the trained clusters for classification of vertebrae on the basis of presence or absence of Osteophytes. It also included the mean and standard deviation values for all features. Each set of features (corresponding to one vertebra) are normalized using the mean and standard deviation values from the MAT-file. This normalized set of features along with the cluster centers for classifications are given as input to the function defined in 'computeVectorDistance3class.m'. In this function the actual classification takes place. With the normalized features it checks the distances of each feature to it
For the project KMeans Classifier for detecting Osteophytes, the above MATLAB code needed to be converted to C++. It was also required that the classification be done for one given vertebra at a time. The working of the code explained above worked on a large set of vertebrae images in Batch-mode. Hence, the two files that were changed from the above code were:
- compute_convex_hull_features_36Points.m
- kmeans_2class_kNearest_subcluster.m
The changes made to compute_convex_hull_features_36Points.m, so that it worked on a single vertebra were made and stored in the same file. The code of kmeans_2class_kNearest_subcluster.m was rewritten in C++ which worked upon a set of features for only one vertebra. This code then calls the computeVectorDistance3class function.
Also, in the provided workspace calculated the six features were calculated and stored in an Excel Spread Sheet. Then, the Kmeans classifier script was run for classifying by reading back the features from the Excel Spread Sheet. This project calculates the six features and then run the classification program on it, thus eliminating the use the Excel Spread Sheet.
A.4.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
All the files described above are kept in a single folder. In the MATLAB compiler, set the current working directory to the directory where all the files are stored
and then, run the command:
```
mcc -W lib:libfcmo -T link:lib compute_convex_hull_features_36Points computeVectorDistance3class
```
After running this command, the files that are generated in the current directory are:
- libfcmo.c
- libfcmo.h
- libfcmo_mcc_component_data.c
- libfcmo.dll
- libfcmo.lib
- libfcmo.exports
- libfcmo.exp
- libfcmo.ctf
A.4.2. Creating the workspace in C/C++ developer environment with the libraries included:
In Microsoft Visual Studio .NET 2005, create a new Win32 Console project. Include the following files in the source code:
```
#include<iostream> #include<stdlib.h> #include<conio.h> #include<math.h> #include<string.h> #include"mat.h" #include"libfcmo.h" #pragma comment(lib, "libmat.lib") #pragma comment(lib, "libmx.lib") #pragma comment(lib, "libfcmo.lib")
```
The C++ implementation was divided into these parts:
1) Reading the MAT-file and extracting the cluster centers for classification and extracting the mean and standard deviation values for these features.
75
2) Reading the .shp36 files to get the vertebra points and then calling an appropriate MATLAB routine to calculate features.
3)
Calling the MATLAB routine to classify for the presence or absence of osteophytes based on the values of these features.
The file name of the .shp36 file was an input parameter taken as a command line argument. The filename to be passed here was to be the absolute path on the local
machine or a relative path can be given if the .shp36 file in stored in the same or one the subfolders of the current workspace. Hence, the process can be worked on any .shp36 file
just by passing different file names at different calls.
A class called 'Data' was created which stores all the values of features for a vertebra also it stores all the values extracted from the MAT file, which are the centers of
the classification clusters and the mean and standard deviation values of the features.
Several functions are defined that work on these member variables. Keeping a separate class for the features values and for the classification parameters was considered
redundant as the program was just suppose to work on one given vertebra at a time.
Since, there are more than one function calls to the MATLAB routines, the initialization and termination of the MATLAB compiler are done close to the entry and
exit points of the C++ program.
The call to the program was given on the command prompt as:
C:\<WorkSpaceDir>\KMeansClassifier_Osteophytes C:\vertebra\C01235_3.shp36
B APPENDIX
Read- Me file for the project 'NewDiscSpaceNarrowing'
76
77
B.1. New Disc Space Narrowing using Self Organizing Maps
The New Disc Space Narrowing was a project which calculates features on a pair of consecutive vertebrae and then using K-means and a Self Organizing Map clustering technique classifies the degree of disc space narrowing into four grades (0-3), where 0 represents normal spacing and 3 represents significant narrowing.
The initial workspace that was provided included the following files:
- mainPairVertebraBoundaryPoints.m
- generateVertebraBoundaryPair.m
- connect_spline.m
- KMeansModel_individualTest.m
- discSpaceNarrowing a VC++ project workspace.
The 'mainPairVertebraBoundaryPoints.m' was a MATLAB script which reads the co-ordinates of vertebra boundary points of two vertebrae from their respective .shp36 files. The 'generateVertebraBoundaryPair.m' and 'connect_spline.m' routines are called by this function to generate the complete boundary of each vertebra. This function saved the coordinate points of the complete boundary into a text file.
The discSpaceNarrowing VC++ project workspace reads this text file to get the complete boundary of the two vertebrae under analysis. It then computes the four Disc Space Narrowing features for the given pair of vertebrae. The computed features are written to another text file.
The 'KMeansModel_individualTest.m' was a MATLAB script which was used to classify the given DSN features of a pair of vertebrae according to the degree of disc space narrowing. It grades the features between 0-3, where 0 signifies a normal spacing between the pair of vertebrae and 3 represents substantial narrowing.
78
The inputs to the 'KMeansModel_individualTest.m' script are the DSN features which are read from the output file generated by the VC++ workspace
'discSpaceNarrowing'. This routine also requires an already trained model to test the new set of features for the purpose of classifying them. The trained model was stored in a
MAT-file stored in the same directory. Two other MAT-files provide the mean and the standard deviation values of all the DSN features which are used to normalize the input
feature vector.
In the project New Disc Space Narrowing, the given workspace functions were linked so that at every run of the solution, the disc space narrowing features were
calculated for a given pair of vertebra, its classification according to the Kmeans and Self organizing maps was done and finally it generated a grade (0-3) as its output, specifying
the degree of disc space narrowing.
The following M-files were changed:
- mainPairVertebraBoundaryPoints.m
- KMeansModel_individualTest.m
Both these Matlab scripts were changed to Matlab functions by putting the code within the scripts into a wrapper function. Now these functions are called from the VC++
workspace by creating a DLL for them. Creation of the DLLs and the new VC++
workspace are explained below:
B.1.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
All the files described above are kept in a single folder. In the MATLAB
compiler, set the current working directory to the directory where all the M-files are stored and then, run the command:
mcc -W lib:libdsn -T link:lib kmeansmodeltest generatevertebraboundarypairshape36
After running this command, the files that are generated in the current directory are:
- libdsn.c
- libdsn.h
- libdsn_mcc_component_data.c
- libdsn.dll
- libdsn.lib
- libdsn.exports
- libdsn.exp
- libdsn.ctf
B.1.2. Creating the workspace in C/C++ developer environment with the libraries included:
In Microsoft Visual Studio .NET 2005, create a new Win32 Console project; copy the discSpaceNarrowing VC++ workspace files into this new project. Include the following files in the source code files.
```
#include<iostream> #include<stdlib.h> #include<conio.h> #include<math.h> #include<string.h> #include"mat.h" #include"libdsn.h" #pragma comment(lib, "libmx.lib") #pragma comment(lib, "libdsn.lib")
```
The header files and libraries 'libmat' and 'libmx' are found in the <matlab_root>\extern\include and <matlab_root>\extern\lib. The files generated by the MATLAB compiler on the 'mcc' command are copied to the current directory of this VC++ workspace.
The code of the existing discSpaceNarrowing VC++ workspace used dynamic memory allocations, due to which warnings may be generated while running the same
80
code in the NewDiscSpaceNarrowing VC++ project. To disable these warnings, open the
'NewDiscSpaceNarrowing' project in Visual Studio .NET 2005 (or any other environment),
in the
'Solution Explorer'
frame, right
click on
'NewDiscSpaceNarrowing', now click 'Properties'. In the window that opens up, go to
ConfigurationProperties>C/C++>CodeGeneration. Now click on tab (on the right side)
'Basic Runtime Checks' and change its value to 'Stack Frames (/RTCs)' by selecting it from the drop-down menu. Click Apply and OK.
The main() function in the discSpaceNarrowing VC++ workpace was changed. It was converted to a function: DiscSpaceNarrowing_c(Pair*) and another file was created
named 'NewDiscSpaceNarrowing.cpp' where the entry point i.e. main() function of the program was placed from where the function call to DiscSpaceNarrowing_c() was made.
A class named 'Pair' was created which encapsulates all features and necessary data related to a pair of vertebra, which are needed for the calculation of the DSN
features and it's grading. All newly added functions are also encapsulated in this class.
The file names of the .shp36 files of the vertebrae under investigation are input parameters taken as command line arguments. These command line arguments are the
absolute paths of these .shp36 files on the local machine or relative paths can be given if the .shp36 files are stored in the same or one the subfolders of the current workspace.
Since, there are more than one function calls to several MATLAB routines, the initialization and termination of the MATLAB compiler are done close to the entry and
exit points of the C++ program.
The call to the program was given on the command prompt as:
C:\<WorkSpaceDir>\NewDiscSpaceNarrowing C:\vertebra\C01235_3.shp36
C:\vertebra\C01235_4.shp36
C APPENDIX
Read- Me file for the project 'NewSubluxation'
81
82
C.1. NewSubluxation using a neural network
The NewSubluxation was a project which calculates features on a group of adjacent cervical vertebrae and then simulates a neural network to calculate a score for the given group of the cervical vertebrae.
The initial workspace that was provided included the following files:
- subluxationFeatures.m
- getScore.m
- connectspline.m
The 'subluxationFeatures.m' was a MATLAB script which did the major computational part of the feature calculations. It read the images of adjacent vertebrae
from the local machine, and it then generated an image consisting of all the cervical vertebrae by logically ORing each of the input images. Several image processing tools
were applied to the image of the complete cervical vertebrae. Also, the centroids and areas of each vertebra that make up the complete image were calculated and used for
feature calculation.
The features calculated were output to a text file on the local machine. Also, the
'subluxationFeatures.m' script worked on several groups of cervical vertebrae in batch mode. The getScore.m was a MATLAB script that runs the simulation of a neural
network using the inbuilt 'sim' function defined in the Neural Network toolbox. The
MATLAB function connectspline.m was called by the subluxationFeatures.m to generate a more complete boundary of a vertebra based on the inputs of a .shp36 file.
In the NewSubluxation project, the given M-files needed to be linked so that on every run of the solution, the subluxation features are calculated for a given group of adjacent cervical vertebrae, and a score was generated for it.
The following M-files were changed:
- subluxationFeatures.m
- getScore.m
Both these Matlab scripts were changed to Matlab functions by putting the code within the scripts into a wrapper function. An additional MATLAB function 'compute_subluxationFeatures.m' was created, this was the function which was called from VC++, it processes input arguments received and then calls the function in 'subluxationFeatures.m'. Creation of the DLLs and the new VC++ workspace are explained below:
C.1.1. Creating the Dynamic Linked Libraries for using the MATLAB routines:
All the files described above are kept in a single folder. In the MATLAB compiler, set the current working directory to the directory where all the M-files are stored and then, run the command:
```
mcc -W lib:libsublx -T link:lib compute_subluxationFeatures getScore
```
After running this command, the files that are generated in the current directory are:
- libsublx.c
- libsublx.h
- libsublx_mcc_component_data.c
- libsublx.dll
- libsublx.lib
- libsublx.exports
- libsublx.exp
- libsublx.ctf
The 'getScore.m' function uses the 'sim.m' function defined in the Neural Network toolbox of MATLAB. By generating the libraries (libsulx files), a C/C++ interface was created that can be used to call the functions compute_subluxation.m and getScore.m. These functions can use all the MATLAB built-in functions within their codes. Although, the use of functions from the Neural Network toolbox can generate warnings as these are not included in the MATLAB compiler which gets loaded via the uses of these libraries. Hence, to alleviate this problem, we add (copy) all the functions of the Neural Network toolbox in the same directory where the other M-functions are stored.
These functions are found in the local directory (on a machine where MATLAB was installed) : <matlabroot>\nnet\nnet\@network\
The files that are to be copied are:
- adapt.m
- disp.m
- display.m
- gensim.m
- init.m
- loadobj.m
- network.m
- revert.m
- sim.m
- train.m
Two additional files can be found in the same directory which are: 'subasgn.m' and 'subsref.m'. These files are necessarily not to be copied to our current directory with other M-files, this compulsion was put because the functions defined in these two M-files are not required in our implementation and can generate warnings while creating the libraries and using them in our C++ program.
Now with all the required M-functions placed in one folder, generate the required 'libsulx' libraries with the –mcc command provided above.
C.1.2. Creating the workspace in C/C++ developer environment with the libraries included:
In Microsoft Visual Studio .NET 2005, create a new Win32 Console project NewSubluxation. Include the following files in the source code files:
```
#include<iostream> #include<cmath> #include<string> #include<cstring> #include"mat.h" #include"libsublx.h" #pragma comment(lib, "libmat.lib") #pragma comment(lib, "libmx.lib") #pragma comment(lib, "libsublx.lib")
```
The header files and libraries named 'libmat' and 'libmx' are found in the <matlab_root>\extern\include and <matlab_root>\extern\lib. The files generated by the MATLAB compiler on the 'mcc' command are copied to the current directory of this VC++ workspace.
The #pragma directives declared above can be avoided in the source code, if these library files are included that was added to the Solution in VC++.
The NewSubluxation project works on several adjacent cervical vertebrae to calculate the subluxation features and to calculate a score based on these features. Hence, the execution of NewSubluxation project requires the filenames of the vertebrae files (.shp36 files). The file names of these .shp36 files of the vertebrae under investigation are provided as input parameters taken as command line arguments. Each of these command line arguments are the absolute paths of these .shp36 files on the local machine or relative paths can be given if the .shp36 files are stored in the same or one of the subfolders of the current workspace.
The main() function that was the entry point of the NewSubluxation project's code encapsulates these filenames into list and also initializes a string containing the filename of the trained model to be used while calculating the score for the features that will be calculated. Hence, a different trained model can be used by changing this value in the code. It then calls the NewSubluxation() function with the list of vertebrae filenames and the trained model's filename as input. The number of input arguments can vary, for the purpose of feature calculation, it was required that either four (C3-C6) or five (C3C7) filenames of adjacent vertebrae be passed. The trained model included here, will test the features generated for vertebrae C3-C6 irrespective of the number of filenames passed for feature calculation. 1
A class named 'Cervicals' and a class named 'Vertebra' are created for the implementation of this project. The Vertebra class encapsulates all the properties of a single vertebra like boundary points, etc and necessary functions to operate on them. The Cervicals class encapsulates a list of objects of the Vertebra class and other data related to this group of vertebrae required to calculate the subluxation features and the score. All newly added functions are also encapsulated in these classes.
Since, there are more than one function calls to several MATLAB routines, the initialization and termination of the MATLAB compiler are done close to the entry and exit points of the C++ program.
When required to calculate the subluxation features on vertebra C3-C6, the call to the program was given on the command prompt was as:
> C:\<WorkSpaceDir>\NewSubluxation C:\vertebra\C01235_3.shp36 C:\vertebra\C01235_4.shp36 C:\vertebra\C01235_5.shp36 C:\vertebra\C01235_6.shp36
1 The trained model can be replaced, by changing the filename that was initialized in the main() routine.
BIBLIOGRAPHY
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[3] Stanley R.J., Antani S.K., Long L.R., Thoma G.R., Gupta K., Das M. "Size-invariant descriptors for detecting regions of abnormal growth in cervical vertebrae." Computerized Medical Imaging and Graphics; 32(1) (2007), pp. 44–52.
[4] Long L.R. and Thoma G.R., "Image query and indexing for digital x-rays." In Proc. SPIE Conference on Storage and Retrieval for Image and Video Databases VII, San Jose, CA, 1999; vol. 3656, pp. 12–21.
[5] Heggeness M.H., Doherty B.J. "Morphologic study of lumbar vertebral osteophytes." South Med J 1998; 91(2), pp. 187–9.
[6] Pate D., Goobar J., Resnick D., Haghighi P., Sartoris D.J., Pathria M.N. "Traction osteophytes of the lumbar spine: radiographic-pathologic correlation." Radiology 1988; 166(3), pp. 843–6.
[7] Stanley R.J. and Long L.R. "A radius of curvature-based approach to cervical spine vertebra image analysis." Copper Mountain, CO. Proc 38th Annual Rocky Mountain Bioengineering Symposium 2001; 37, pp. 385–390.
[8] Tsai M.D., Jou S.B., Hsieh M.S. "A new method for lumbar herniated inter-vertebral disc diagnosis based on image analysis of traverse sections." Computerized Medical Imaging and Graphics 2002; 26(6), pp. 369–380.
[9] Manber U, Introduction to Algorithms: A Creative Approach. Addison-Wesley Longman Publishing Co., Inc. Boston, MA; 1989.
[10] Barber C., Dobkin D., Huhdanpaa H. "The Quickhull algorithm for convex hulls." ACM Transactions on Mathematical Software 1996; 22(4), pp. 469–83.
[11] Horn B. Robot Vision. 1st ed. MIT Press; Cambridge, MA; 1986. ISBN: 0-26208159-8.
[12] Chiu S. "Fuzzy model identification based on cluster estimation." Intell Fuzzy Syst J 1994; 2(3), pp. 267–78.
[13] Yager R. and Filev D. "Generation of fuzzy rules by mountain clustering." Intell Fuzzy Syst J 1994; 2(3), pp. 209–19.
[14] Seber G.A.F. Multivariate observations. Wiley; New York; 1984.
[15] Han J. and Kamber M. Data mining: Concepts and Techniques. Morgan-Kaufman; San Francisco, CA; 2000. ISBN: 1-55860-489-8.
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VITA
The author, Mohammed Sadiq Das, was born on March 27, 1985 in the city of Bombay, India where he grew up and received his primary and secondary education from Bhavans A. H. Wadia High School. With an interest in the subjects of Mathematics and Computers, a desire to experiment with gadgets and devices, and an inclination towards computer programs he furthered his studies in fields of science and engineering at the University of Mumbai (Bombay), India to receive his Bachelor of Engineering in Information Technology in June 2006. Here, he had opportunities to learn and showcase his knowledge in areas of Component based Software Development, Networking and Image Processing. With a desire to learn more at core of the technologies, he then went on to pursue an M.S. degree in Computer Science at the University of Missouri-Rolla. During the course of this graduate studies, he had the opportunity to research intensively on various aspects of Medical Image Processing and Pattern classification under the supervision of Dr. Ronald Joe Stanley. In his free time, he enjoys playing soccer and chess, and has also had the opportunity to represent his college soccer team at various levels.
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B.24 SOI (2019)
Contents
Minister's Statement
Comptroller's Statement
I am satisfied that the information on strategic intentions prepared by the New Zealand Customs Service is consistent with the policies and performance expectations of the Government.
In signing this document, I acknowledge that I am responsible for the information on strategic intentions for the New Zealand Customs Service. This information is prepared in accordance with sections 38 and 40 of the Public Finance Act 1989.
Hon Kris Faafoi Minister of Customs
Bill Perry Acting Comptroller of Customs
Presented to the House of Representatives pursuant to section 39 of the Public Finance Act 1989
What we do
Our purpose is to protect and promote New Zealand across borders.
Our core functions
Legislative authority
The New Zealand Customs Service (Customs) provides essential border services and infrastructure that protect New Zealand and advance our economy. We have three core functions:
* • protecting New Zealand's borders – we make our country safer and more secure by reducing the risks associated with international trade and travel. We focus on illegal, non-compliant activity across borders and on revenue fraud
* • collecting Crown revenue – we ensure that duties, excise taxes, levies, GST on imports, and fees owed to the Government are collected. Customs collects around 18% of the Crown's core tax revenue each year.
* • promoting and facilitating secure and efficient trade and travel to and from New Zealand – we help New Zealand exports to flow freely into overseas markets and efficiently process imports arriving into our country. We provide secure, efficient, and effective border processes for international travellers
All of our functions are within the scope of Vote Customs. The output class scope and achievement statements detailed in The Estimates of Appropriations 2018/19 for Vote Customs reflect these functions. The nature and scope of Customs' functions are expected to remain the same during the next four years.
Customs' functions are mandated by the Customs and Excise Act 2018 and related regulations. Customs also enforces more than 60 other enactments at the border on behalf of other agencies.
Our services:
* • facilitating the flow of people, goods, and craft across our border
* • promoting and facilitating secure and efficient trade and travel
* • protecting New Zealand from external risks and threats such as illicit drug smuggling
* • enforcing relevant law, which includes identifying and seizing prohibited imports and exports
* • collecting Crown revenue
* • providing intelligence and risk assessment information to external customers, and also to Customs' frontline officers
* • monitoring whether traders and travellers are complying with border requirements, and providing assurance over trade security and the border revenue system
* • supporting the economic, protection, and security outcomes of other agencies
* • participating in the global customs community by contributing to the development of international customs policy and through our relationships with overseas customs and law enforcement bodies
* • providing policy advice to Ministers on border and revenue management issues.
What we want to achieve
Our role at Customs is to protect New Zealand from risks and threats, while helping our economy grow.
Rautaki Mana Ārai — Customs Strategy
Te Rautaki Mana Ārai, the newly refreshed strategy of Customs, is driving our planning to deliver our aspiration to eliminate border and revenue risk. The refresh builds on what we set out and achieved through our previous strategy, Customs 2020.
our relationships with iwi to improve the protection of, and help foster Māori participation in, our society.
As a living document, the strategy will provide us with agility to adapt and respond to future opportunities and challenges. Annual reviews looking ahead at least five years will ensure its currency.
We have four values that underpin all that we do at Customs. They are: we do what's right – te ara tika; we value people – he tāngata; we are guardians – kaitiakitanga; we look forward – pae tawhiti.
The Treaty of Waitangi principles of partnership (kotahitanga), protection (kaitiakitanga), and participation (manaakitanga) provide the foundations for what we do – our Te Pou Tokomanawa. 1 Integrating these principles into our strategy allows us to strengthen
1 — Te Pou Tokomanawa is the central pole of a meeting house, which holds everything up.
Our strategic intentions focus on maintaining and improving delivery of the core functions of our business — protection of New Zealand's borders, collecting revenue, and promoting and facilitating trade and travel in the face of changing demands and expectations — to support the achievement of ministerial and government priorities. Our focus will include:
* • eliminating risk offshore
* • further automation of processes to enable:
* • earlier access to trade and travel data and enhanced analytics to further improve our understanding of risk, providing a better focus for interventions to risk
−−self-processing by customers, and
−−increased mobility and efficiency for frontline officers
* • increasing our ability to provide assurance over the management of border and revenue risk.
Clearance and enforcement services related to passengers and crew
WE DO WHAT'S RIGHT
Te Ara Tika
Protection
Prevent risk reaching our borders
Whakahaumaru
Kotahitanga Partnership
Clearance and enforcement services related to goods
Our strategic framework
Government priorities
Building an economy that is growing and working for us all
Reducing harm to families through increased disruption to the supply of illicit drugs into New Zealand
Making New Zealand proud
Co-designing future border systems
Improving the wellbeing of New Zealanders and their families
Ministerial priorities
Strengthening New Zealand's trading links to support exporters
Eliminating the gender pay gap, paying the Living Wage, and increasing the diversity of Customs' workforce
We are here to
protect and promote New Zealand across borders
Ko te whakahaumaru me te whakatairanga i a Aotearoa ki ngā rohe
Our Values — Whanonga Pono
WE ARE GUARDIANS
WE VALUE PEOPLE
Kaitiakitanga
He Tāngata
We aspire to
eliminate border and revenue risk
Te whakakore tūraru rohe me ngā mahi kohinga tāka
We aim to achieve
New Zealand's trade flows efficiently across borders
Travel
A streamlined experience for travellers across borders
Hokohoko
Tāroi
Te Pou Tokomanawa — The Foundations
Kaitiakitanga
Protection
Output classes
Information and intelligence services
Clearance and enforcement services related to craft
Revenue collection
WE LOOK FORWARD
Pae Tawhiti
Revenue
Collect all due revenue
Kohinga tāka
Manaakitanga Participation
Policy advice
International services and ministerial servicing
Our operating environment
We operate in an environment of increasing trade and travel volumes, diversity of risk, and service expectations.
A dynamic and evolving environment
New Zealand's prosperity will always rely on our attractiveness as an international trading partner and trusted destination. The ability of New Zealand, including Customs, to adapt to, and influence, the global landscape is critical to improving society's wellbeing.
* • more diverse and complex integrated international supply chains, driven by changing business models and increasing trade with emerging economies
Major global trends — including urbanisation, increasing global wealth, climate change and resource scarcity, global power shifts, changing demographics and the rise of the individual, and disruptive technology — will continue to create opportunities and challenges, for Customs and for society more broadly.
Increasing demand, opportunity, and risk
In the absence of significant disruptive events we expect to see the following longer-term trends present opportunities and increased risk and service challenges for Customs:
* • increasing travel and migration volumes, both legal and illegal
* • a dynamic global trading environment affecting our ability to exert influence on world customs trade rules and the international environment
* • improving services and better managing risks but also dealing with new threats from increasingly complex relationships and systems and the globalisation of border-related crime
* • increasing expectations of a better and more timely service and a greater expectation of social responsibility, notably relating to transparency, openness, fairness, and sustainable processes
* • unprecedented data richness and connectivity, enabling more effective targeting and efficient cross-border flows but also increasing privacy concerns as more personal data becomes available
* • changing demographics in our workforce to meet the needs of different customers, future technologies, and ways of working.
* • increasing complexity in cross-border crime and security risks, including more organised and sophisticated trans-national criminal offending, particularly involving illicit drugs
The border system
Customs internationally
As a border agency, Customs works with a wide range of sectors and has relationships spanning economic, community protection, security and intelligence, and border management interests. The border is a convenient place for some agencies to give effect to the laws and policies they administer.
Border sector agencies 2 are working towards achieving the 2025 vision 3 that New Zealand's border system provides the next generation of world-class protection, assurance, and facilitation.
We work with our partners and other government agencies to manage the risks and opportunities from goods, people, and craft moving in and out of New Zealand. Through this work we strengthen our society's prosperity, environment, and reputation.
Our collective border management is among the best in the world and has contributed to New Zealand's reputation as a trustworthy country for trading with and travelling to.
* • gathering and using information and intelligence from both traditional and non-traditional partners to target illicit activity at its source.
The success of New Zealand's economy is linked to what happens at the border through facilitation of trade in goods and services, as well as identifying emerging and traditional risks, including the smuggling of goods, people and craft of interest, and revenue fraud and evasion.
Customs will continue working to improve New Zealand's international reputation as a trusted and effective partner in the network of mutually recognised border clearance systems. This is critical to facilitate the flow of legitimate trade and travellers.
Customs plays an active role in the global customs community, ensuring that New Zealand is actively represented in international customs policy, trade and security interests, and law enforcement relationships to deliver on our functions by:
* • influencing the development of global standards and rules, increasing trade access, and reducing non-tariff barriers through the World Customs Organization, World Trade Organization, and Customs Chapters within bilateral Free Trade Agreements
2 – The Border Sector comprises the Ministry for Primary Industries, the Ministry of Business, Innovation and Employment (Immigration New Zealand), the Ministry of Transport, and Customs.
Supporting government and ministerial priorities
Customs has a focus on supporting healthier, safer, and more connected communities; supporting all New Zealand traders; and creating an international reputation that New Zealanders are proud of.
The Government is focused on building an economy, an environment, and a society which are sustainable, productive, and inclusive to improve the wellbeing of all New Zealanders through:
* • building an economy that is growing and working for all of us
−−Customs will continue to have a particular emphasis on growing and sharing New Zealand's prosperity and supporting thriving and sustainable regions.
Customs is working to help build the economy, improve wellbeing, and make New Zealand proud. Using the lens of the Treasury's Living Standards Framework 4 our strategic intentions and goals contribute to the growth of the four capitals (see page 9). We also contribute to the framework through the delivery of the priorities agreed with the Minister of Customs for the Customs portfolio during the current parliamentary term:
* • improving the wellbeing of New Zealanders and their families
−−Customs will continue to have a particular emphasis on supporting healthier, safer, and more connected communities.
−−Customs will continue to have a particular emphasis on delivering transparent and compassionate governance, building closer partnerships with Māori, and creating an international reputation we can be proud of.
* • making New Zealand proud
4 – See: https://treasury.govt.nz/information-and-services/nz-economy/living-standards
* • reducing harm to families through increased disruption to the supply of illicit drugs into New Zealand
* • eliminating the gender pay gap, paying the Living Wage, and increasing diversity within Customs' workforce
* • strengthening New Zealand's trading links to support exporters
* • co-designing future border systems.
| Government priorities | The four capitals |
|---|---|
| • •building an economy that is growing and working for all of us • •improving the wellbeing of New Zealanders and their families • •making New Zealand proud | Natural All aspects of the natural environment needed to support life and human activity |
| | Human People’s knowledge and physical and mental health – human capital enables people to fully participate in work, study, recreation, and society more broadly |
| | Social The social connections, attitudes, norms, and formal rules or institutions that contribute to societal wellbeing by promoting resolution of collective action problems among people and groups in society |
| | Financial/Physical The country’s physical, intangible, and financial assets that have a direct role in supporting incomes and material living conditions |
Delivering our strategic intentions
Protection
Our focus is on preventing risk from reaching our borders through targeted risk management. Effective risk management and clearly enforcing the law underpins all our work in trade, travel, and revenue.
Our aim is to prevent criminals from operating across our borders while maintaining high public confidence in the performance of our protection role.
We work with domestic and international partners to eliminate risk offshore. We continue to work towards fully understanding what is normal and to target what isn't to ensure that we are successful in our assessment of risk and the way in which we respond. Comprehensive data and information will help achieve this.
| Strategic intention5 | | |
|---|---|---|
| Goals | We will measure | Strategic indicators |
| Criminals cannot Impact of Customs’ efforts to Total social harm avoided through operate across disrupt onshore and offshore onshore drug seizures our borders criminal networks Total social harm avoided through offshore drug seizures Effectiveness of Customs’ Proportion of interventions that border risk management yield the intended result systems and processes | | |
| The public has trust Public trust and confidence Overall level of public trust and confidence in in Customs’ performance of and confidence in Customs’ Customs’ actions protection role performance of protection role | | |
Trade
Our focus is on enabling New Zealand's legitimate trade to flow efficiently across borders. We aim to make trade facilitation accessible and beneficial to all New Zealand businesses, which includes using, for example: Mutual Recognition Arrangements and Customs Co-operation Agreements.
system that is easy for users to work with. We will also provide further education and information for all traders on their rights and obligations to ensure that the provisions of the agreements are fully utilised.
We also aim to achieve high levels of voluntary compliance. To improve voluntary compliance, we are developing a simple, fair, equitable, and transparent
Vital to Customs' success in trade are effective relationships with key trading partners and being able to influence global customs standards. We need to maintain and improve our value as an international partner.
| Strategic intention6 | | |
|---|---|---|
| Goals | We will measure | Strategic indicators |
| There is a high level of voluntary compliance | Trade compliance across all streams | Percentage of trade transactions that are compliant |
| Trade facilitation is accessible to all New Zealand businesses | The effectiveness of existing trade facilitation processes | Ease of compliance score |
Travel
Our focus is on delivering a streamlined experience for travellers across borders. We aim to deliver high-quality border management across all modes of travel through more integrated and automated processes. Deepening our collaboration with other agencies and stakeholders will lift our delivery of efficient and secure services for legitimate travellers.
Our work includes making compliance simple through self-service and educating travellers on their obligations by providing clear information. Increasing compliance levels will allow us to target those travellers presenting the most risk.
| Strategic intention7 | | |
|---|---|---|
| Goals | We will measure | Strategic indicators |
| High-quality border Quality of border Timeliness of passenger movements management management through Customs’ controls delivered across all modes of travel Passenger experience | | |
| Interventions Focus of interventions Intervention rate by level of risk8 focus on high risk travellers across all Intervention effectiveness by level modes of travel of risk8 | | |
| Collaboration Impact of collaborative Degree of meaningful collaboration delivers improved initiatives and engagement services | | |
7 – This strategic intention is primarily funded through Output class 1 – Clearance and enforcement services related to passengers and crew.
8 – These measures will tell us if we have the correct focus for our interventions and, if so, whether they are effective, and if there are any differences between the risk categories. Reporting is expected to start in the 2020/21 year.
Revenue
Our focus is on collecting all due Crown revenue through high voluntary compliance and ensuring that all non-compliance is addressed. We also aim to maintain public trust and confidence in our collection of revenue.
Achieving high voluntary compliance requires making self-declaration, payment, and collection easier. We continue working towards providing simple and efficient systems and processes that are transparent, consistent, predictable, and accurate. We also aim to ensure that all non-compliance is appropriately penalised.
| Strategic intention9 | | |
|---|---|---|
| Goals | We will measure | Strategic indicators |
| There is a high Level of voluntary Compliance rate of level of voluntary compliance audited companies compliance | | |
| All non-compliance Identification and Appropriateness of response is addressed consequence of to non-compliance non-compliance | | |
| The public has trust Level of trust and confidence Overall level of trust and and confidence in in Customs’ revenue confidence in Customs’ the collection of collection revenue collection revenue by Customs | | |
Driving organisational excellence
We have set ourselves aspirational strategic intentions, the achievement of which will require everyone to work towards them in their day-to-day work.
The way we work
Our focus is on addressing two key pressures:
Customs is focusing on making compliance easy to do and hard to avoid and achieving high assurance with a light touch to border clearance of compliant trade and travellers so we can focus on high-risk illegal border activity.
The underlying principles for the way we will work to achieve our goals are:
* • empowering our people to improve our business
* • using information to improve our decision-making
* • collaboration and innovation to improve border systems
* • digitising everything that makes sense to
* • pre-emptive efforts on- and off-shore.
Workforce
* • sourcing and developing new capabilities within an organisation that is growing rapidly to meet the medium-term and future needs of our operating environment
* • changing the way we work, not just to ensure we can manage the volume and risks at our borders but to meet the expectations of our workforce.
Initiatives to address these pressures and achieve our aims fall under four key work streams:
* • sourcing and building new skills and capabilities
* • supporting the growth of inspiring leadership
* • maintaining and keeping our experience and current capabilities to deliver today's work
* • growing our culture.
People are critical to successfully delivering our strategic intentions. Our aim is to have a diverse, capable, agile, and resilient workforce ready for the future and one that is engaged and exemplifies our values. It also needs to be representative of the community and customers we serve.
Gender pay gap
Customs has identified a clear gender pay gap 10 between men and women within our organisation. Eliminating this pay gap is part of our commitment to making sure that equality and inclusivity are a core part
10 – The gender pay gap is the measure of the difference between the average earnings of men and women across an organisation (irrespective of roles and seniority).
of our culture. We want to ensure that all our people and those who join Customs have equal opportunities to develop and earn.
Investment management and asset performance
Our aim is to eliminate the gender pay gap entirely with the immediate focus being to reduce the gap by a third by the end of 2020. We will review our own and others' initiatives during 2020 and reset targets appropriately.
Inclusion and diversity
Our vision for Customs is to be inclusive and diverse: every voice is valued and respected. Our inclusive culture makes our people feel safe, empowered, treated fairly, supported to grow, and comfortable to do their best work. We reflect a diverse community and, together, we protect and promote New Zealand across borders. To serve them well, this needs to be reflected, valued, and understood by all of us.
An understanding of our recently revised key definitions for inclusive and diverse will better enable the culture we seek:
* • inclusive means valuing our uniqueness and helping everyone to contribute and bring their authentic selves to work
* • diverse means people have a unique blend of different knowledge, skills, and experience based on their professional skills, sexual orientation, age, gender identity, ethnicity, and more.
Customs' border management systems and equipment are critical for the delivery of reliable and fit-for-purpose services 24 hours a day, seven days a week, both at the front line and for support functions. The frontline tools rely heavily on technology systems that feed information for seamless performance and risk assessment.
Our critical assets to deliver our core services are x-ray machines; vessels; Joint Border Management System/Trade Single Window; CusMod border management system; Nexus data warehouse; e-Gate for passenger processing; and the Financial Management Information System. These critical tools and technology systems are constantly monitored for their compliance with functionality, condition, and availability performance standards. As new systems are introduced appropriate monitoring will be put in place. This will be undertaken, for example, when the new Risk and Intelligence tools are implemented.
To continue improving our asset management practice, we recently implemented a new Asset Management Framework. This includes preparing individual Asset Management Plans for the critical border management systems and tools that detail short-, medium-, and long-term investment intentions. These will help us to achieve our desired service performance and therefore,
the delivery of our strategy. Customs' revised Long-Term Investment Plan will incorporate such intentions, along with other 'support the business' type investments to provide a comprehensive 10-year plan.
Investing to meet the constantly changing demands, including managing continuous volume increases within the current funding, remains a challenge and requires smart choices. We continue to work towards full implementation of an Integrated Planning and Reporting process to help plan, prioritise, and approve initiatives that provide a balanced investment portfolio, have manageable implementation risks, and present potential benefits that are most likely to be realised.
The key future investments include efficiency gains at our borders through implementation of mobile ICT solutions. The future investments will also include automated risk management using advanced analytics for goods and passengers crossing our borders. Customs works closely with partner agencies in delivering the Border Sector vision of an efficient and effective next-generation border service while ensuring our borders are as safe as ever.
Monitoring our performance
To enable us to focus our activities on the areas that make the most difference to New Zealanders we must monitor our progress. Progress towards our aspiration of eliminating border and revenue risk will be monitored through our strategic indicators 11 which measure the impact of our delivery of our core functions. We can control some of the factors that contribute to achieving strategic intentions but others we can only influence.
We are introducing a new measurement framework to monitor progress against our strategic indicators. Key performance measures will continue to be introduced and refined over the period of this document.
Our operational performance is assessed through our output measures. These measures are set out in The Estimates of Appropriations for Vote Customs.
Our output measures, financial performance, and performance against agreed ministerial priorities are reported to the Minister of Customs quarterly.
Progress against the measures in The Estimates of Appropriations for Vote Customs and our strategic indicators is reported regularly to the Customs' Executive Board and in the New Zealand Customs Service's annual report. This reporting will cover our annual results as well as cumulative results showing the progress achieved through implementation of our strategy.
Crown Copyright @ 2019
This work is licensed under the Creative Commons Attribution 3.0 New Zealand licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to the Crown and abide by the other licence terms. To view a copy of this licence, visit http://creativecommons.org/licenses/by/3.0/nz.
Please note that no departmental or governmental emblem, logo, or Coat of Arms may be used in any way that infringes any provision of the Flags, Emblems, and Names Protection Act 1981. Attribution to the Crown should be in written form and not by reproduction of any such emblem, logo, or Coat of Arms.
ISSN 1176–1857 (Print) ISSN 1178–5047 (Online)
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TD/B/48/4 TD/B/COM.2/31
UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT
Report of the Commission on Investment, Technology and Related Financial Issues on its fifth session
held at the Palais des Nations, Geneva, from 12 to 16 February 2001
UNITED NATIONS
Dist. GENERAL
TD/B/48/4 TD/B/COM.2/31 20 March 2001
Original: ENGLISH
Report of the Commission on Investment, Technology and Related Financial Issues on its fifth session
held at the Palais des Nations, Geneva, from 12 to 16 February 2001
CONTENTS
Chapter I
AGREED RECOMMUNDATIONS ADOPTED BY THE COMMISSION AT ITS FIFTH SESSION
Impact of international investment flows on development: Mergers and acquisitions — policies aimed at maximizing the positive and minimizing the possible negative impact of international investment
1. In its deliberations on the impact of mergers and acquisitions (M&As), the Commission took note of the secretariat documents entitled "Impact of international investment flows on development: Outcome of the Expert Meeting on Mergers and Acquisitions" (TD/B/COM.2/29), "Impact of cross-border mergers and acquisitions on development and policy issues for consideration" (TD/B/COM.2/EM.7/2) and "Report of the Expert Meeting on Mergers and Acquisitions: Policies Aimed at Maximizing the Positive and Minimizing the Possible Negative Impact of International Investment" (TD/B/COM.2/26).
2. The Commission noted that, in recent years, transnational coporations have made considerable use of M&As to invest in developed countries and countries with transition economies, and increasingly in developing countries as well. Cross-border M&As can have positive and negative effects in a host country economy, depending on many factors, notably the country's level of development, the regulatory framework in place, and the circumstances under which cross-border M&As take place. In any event, the effects of cross-border M&As on development depend on the specific transaction and the concrete circumstances that exist in individual host countries, including the national legal framework and the prevailing external environment.
3. The Commission accordingly called on member countries to put in place appropriate, transparent and predictable policy frameworks, notably to encourage the positive contribution of cross-border M&As to development and minimize any negative effects of such transactions with a view to advancing the mutual interests of host countries and transnational corporations. In this respect, the Commission made the recommendations set out below.
Governments
4. Policies or guidelines on M&As should reflect a long-term developmental perspective, taking into account the circumstances under which M&As are undertaken and the level of development of host countries, as well as the impact on domestic enterprise development, and the interests of workers as expressed by their representatives.
5. Measures should be considered to maximize the benefits and minimize the social cost of M&As. These measures may include social safety nets and responses to employment effects of M&As, including support for the training and retraining of workers who may be laid off.
6. Attention needs to be paid to the adoption and implementation of competition laws. To that end, cooperation among competition authorities could be useful. In addition, special attention to the relevant market definitions, market performance and market structure is warranted.
International community
7. Apart from national merger reviews, international cooperation should be strengthened in the area of competition policies at the bilateral, regional and multilateral levels. Cooperation could include the exchange of information, joint review mechanisms, coordination of time limits and collaboration among competition authorities.
8. Consideration should be given to assisting developing countries, in particular the least developed countries (LDCs), in developing and implementing national and regional competition policies, including through support for technical assistance.
9. Consideration should also be given to assisting developing countries, and in particular LDCs, in formulating policies and measures concerning cross-border M&As, including in dealing with their impact on employment and enhancing the ability to attract appropriate technology with a view to increasing the level of technology transfer.
10. In this respect, cooperation among developing countries in the exchange of national experiences, for example on competition policy and measures to attract investment flows, should also be encouraged.
UNCTAD
11. Bearing in mind the work programme set out by the Fourth United Nations Review Conference for the Control of Restrictive Business Practices and the mandate from UNCTAD X, UNCTAD should continue to report on, and analyse, trends in cross-border M&As and their share in foreign direct investment flows and related policy responses and their impact on development. In this regard, factors related to the competitiveness of the domestic enterprise sector, including small and medium-sized enterprises, in the face of the internationalization of production also need to be studied.
12. UNCTAD should undertake analytical work and, in the case of privatizations, elaborate guidelines, with a view to providing recommendations to deal, at the national and international levels, with the challenges posed by the impact of cross-border M&As on national market structures, level of employment and competition policy.
International policy issues: Home country measures
13. The Commission took note of the secretariat documents entitled "Home country measures" (TD/B/COM.2/30) and the "Report of the Expert Meeting on Home Country Measures" (TD/B/COM.2/27), which served as background for the policy dialogue during the session.
14. A foreign-direct-investment (FDI) transaction is a triangular relationship involving three main actors: a transnational corporation (TNC) — large or small — investing its assets, the capital-importing host country and the capital-exporting home country. Therefore, the
Commission noted that home country measures (HCMs), i.e. measures aimed at promoting outward investment and technology transfer, when matched with an enabling environment in host countries, play an important role in increasing FDI flows to developing countries.
15. Although developed countries are still the principal sources of such flows, the share of FDI flows which originates in developing countries, including emerging economies, is increasing. The Commission noted that an increasing number of developing countries are now actively pursuing HCMs. HCMs are applied for a number of reasons, and, therefore, because of the variety of objectives, their design and application need to be adaptable and flexible. The Commission took note of a number of best practices in the area of HCMs that could be emulated, where appropriate, and applied in a cooperative spirit. International arrangements can, and in some areas already do, provide a framework. In this context, the Commission noted that the fact that a number of HCMs can be found in international agreements suggests that other HCMs may lend themselves to such agreements if all parties so desire.
16. In the light of these considerations, the Commission makes the recommendations set out below.
Governments
17. Best practices in the area of HCMs should be emulated, where appropriate, and applied in a cooperative spirit.
18. Home countries, in particular developed countries, should further develop their efforts to encourage FDI flows, particularly to and between developing countries, and especially to the least developed countries (LDCs). In this context, the Commission noted the important role that private sector initiatives play.
19. Host countries, according to their priorities, should take advantage of the opportunities arising from HCMs and seek actively to develop linkages between their own investment promotion efforts and HCMs offered by home countries. The Commission acknowledges in this context the important role of the World Association of Investment Promotion Agencies (WAIPA) in facilitating investment flows.
20. With a view to the forthcoming Third United Nations Conference on the Least Developed Countries, home countries should refine and devise special measures designed to encourage FDI and technology flows to LDCs.
International community
21. There should be further examinations of what measures Governments have taken to implement the provisions of international agreements on transfer of technology, bearing in mind the importance of the effective implementation of international commitments relating to technology and its transfer, including the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement), by host and home countries.
22. International support measures can be useful in facilitating FDI flows to developing countries, including through the improvement of the enabling environment.
UNCTAD
23. Within the mandate from UNCTAD X, UNCTAD should:
(a) Analyse all aspects of existing international agreements relevant to transfer of technology;
(b) Design technical cooperation activities to assist countries in making more effective use of available HCMs. In this context, the Commission noted with appreciation the introduction of a "signposting" service with regard to relevant home country reference sources on outward investment promotion.
Chapter II
OPENING STATEMENT
24. The Secretary-General of UNCTAD set out the major points of the Commission's session. He noted that despite the sustained growth of FDI flows, these remained highly concentrated in a few regions and economies, with most foreign direct investment (FDI) occurring among the already advanced economies, and the flows to the developing world concentrated in roughly 10 developing countries in Asia and Latin America. Secondly, the surge in FDI was based on a wave of cross-border mergers and acquisitions, a factor which appeared to lessen the benefits conventionally associated with foreign investment. These two factors suggested that the overwhelming majority of the countries of the developing world, especially African countries and the least developed countries (LDCs), were not benefiting from the possible contribution of FDI in coping with the challenges of globalization. UNCTAD was therefore proposing practical ideas so that FDI would be distributed more evenly. This was in accordance with the Bangkok Plan of Action, which had entrusted the secretariat with the task of providing insight and assistance to member countries in coming to grips with the challenges of international capital flows.
25. Regarding the secretariat's activities since UNCTAD X, he highlighted the work on competition policy, notably the Fourth United Nations Conference to Review All Aspects of the Set of Multilaterally Agreed Principles and Rules for the Control of Restrictive Business Practices, held in September 2000, and the work on the issue of cross-border mergers and acquisitions. In connection with the latter, the secretariat had examined the differences between greenfield FDI and cross-border mergers and acquisitions at an Expert Meeting, which would be reviewed under agenda item 3, and in the World Investment Report 2000. To shed further light on the role of home country measures in promoting FDI flows to developing countries, the secretariat had organized an Expert Meeting, which would be reviewed under agenda item 4.
26. He noted in particular the practical initiatives undertaken by the secretariat to overcome the excessive concentration of FDI. These included the production of investment guides to the LDCs and assisting LDCs in negotiating bilateral investment agreements. A recent round of negotiations, involving francophone countries and other countries as partners, had concluded 41 agreements. This was a tangible and useful initiative in terms of familiarizing LDCs with different legal traditions.
27. Turning to the major implications of the Bangkok Plan of Action for the Commission on Investment, Technology and Related Financial Issues, he emphasized that the issue of international investment flows and their development impact was firmly established as one of the main pillars of UNCTAD's work programme. He reiterated that the Commission's deliberations would be crucial to the preparatory process for the Third United Nations Conference on the Least Developed Countries, to be held in Brussels in May 2001, and that two of the Commission's agenda items – home country measures and investment policy reviews – were of special relevance to LDCs. He urged Governments in a position to do so to support the concrete and practical projects that UNCTAD was proposing for the Brussels conference, noting that a list of such projects was available from the secretariat.
28. In closing, he said that the issues addressed by the Commission were essential in enabling countries to cope with the challenge of competitiveness. This referred not only to preparations for global negotiations on trade or investment issues, but also to their practical and integrated implementation. In essence, the challenge was to develop the productive capacity to take advantage of concessions and agreements negotiated in various trade agreements. Building productive capacity necessitated both domestic and foreign direct investment; and it required links between large companies with distribution channels of a globalized nature and small and medium-sized domestic enterprises, the development of entrepreneurship in countries, and the capacity to absorb technology, including managerial capacity. This would call for great efforts and the results would vary, depending both on the degree of commitment of the developing countries and on the response by the international community.
Chapter III
IMPACT OF INTERNATIONAL INESTMENT FLOWS ON DEVELOPMENT: MERGERS AND ACQUISITIONS – POLICIES AIMED AT MAXIMIZING THE POSITIVE AND MINIMIZING THE POSSIBLE NEGATIVE IMPACT OF INTERNATIONAL INVESTMENT
(Agenda item 3)
29. For its consideration of this item, the Commission had before it the following documentation:
"Impact of international investment flows on development: Outcome of the Expert Meeting on Mergers and Acquisitions" (TD/B/COM.2/29)
"Impact of cross-border mergers and acquisitions on development and policy issues for consideration" (TD/B/COM.2/EM.7/2)
"Report of the Expert Meeting on Mergers and Acquisitions: Policies Aimed at Maximizing the Positive and Minimizing the Possible Negative Impact of International Investment" (TD/B/COM.2/26 – TD/B/COM.2/EM.7/3)
"World Investment Report 2000: Cross-border mergers and acquisitions and development, Overview" (UNCTAD/WIR/2000)
"Resolution of the Fourth United Nations Conference to Review All Aspects of the Set of Multilaterally Agreed Principles and Rules for the Control of Restrictive Business Practices" (TD/RBP/CONF.5/15)
30. The representative of the UNCTAD secretariat noted that the continued high growth of FDI inflows, which had reached $1.2 trillion in 2000, was sustained by the dynamic evolution of cross-border mergers and acquisitions (M&As) – which mainly involved developed countries – while the share of greenfield FDI had been declining in recent years. This raised concerns about whether cross-border M&As played a role similar to that of greenfield FDI in the development process, since M&As, in contrast to greenfield investment, would not add to the productive capacity of the host countries but simply involve a transfer of ownership and control from domestic to foreign hands.
31. While the liberalization of FDI policies had greatly facilitated cross-border M&As, a number of host countries, including developing countries, had introduced various policy instruments to deal with cross-border M&As, and competition law and merger review systems that often worked on a case-by-case basis. At the regional and international levels, the number of bilateral investment treaties (BITs) concluded, which had totalled 1,857 by the end of 1999, had continued to increase in 2000, partly as a result of UNCTAD's work in facilitating BIT negotiations, especially among developing countries. In this respect, he drew attention to the fact that a BIT negotiation round recently organized in Geneva for francophone LDCs had resulted in the signing of 41 BITs.
32. He noted that the significance of cross-border M&As for host economies still needed to be assessed, particularly in the light of concerns expressed by Governments and civil society about their impact on economic and social development. For this reason, the UNCTAD World Investment Report 2000 dealt with the special topic of cross-border M&As and their impact on development, and an Expert Meeting had been convened on the same topic. He called upon the Commission to formulate agreed policy recommendations on the basis of the findings of the Expert Meeting and stressed that the policy dialogue during the Commission would provide an input into the preparatory process for the Third United Nations Conference on the Least Developed Countries (LDC III).
33. Home country measures (HCMs) to promote outward FDI flows and the transfer of technology were the second issue on the Commission's agenda. This was a nascent area of international cooperation and policy formulation that required the establishment of a broad understanding and consensus on the definitions, rationale, best practices and international dimension underlying such HCMs. The outcome of the policy dialogue on this issue would also represent an input into the preparatory process for LDC III.
34. Finally, he was pleased to welcome the members of the World Association of Investment Promotion Agencies (WAIPA), whose sixth annual conference, which was taking place simultaneously with the Commission's session, would consider the issue of HCMs from a practical point of view. Also, he invited the Commission to consider investment policy reviews (IPRs) on Ecuador, Ethiopia, Mauritius and Peru in a high-level, focused and detailed exchange of experience on specific country investment issues. In addition, the Commission was invited to look at the work of its subsidiary bodies and the Division's activities since its last session. This would include the report of the Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting and the work of the Commission on Science and Technology for Development.
35. The representative of the UNCTAD secretariat, introducing agenda item 3 – "Impact of international investment flows on development: Mergers and acquisitions – Policies aimed at maximizing the positive and minimizing the possible negative impact of international investment" – referred to the note prepared by the secretariat on the outcome of the Expert Meeting (TD/B/COM.2/29), a document which had been prepared in response to guidelines established at UNCTAD X.
36. She said that the Expert Meeting had been timely, as it had examined the challenges arising from the wave of cross-border M&A sales after the financial crisis in Asia. The overall trend towards increasing cross-border M&As had continued since the Expert Meeting, held in June 2000, with most deals taking place among developed countries. Commenting on the findings of the Meeting, she noted that the impact of cross-border M&As on host economies had to be assessed from a long-term perspective, taking into account the different levels of development. Policy responses, therefore, would depend on the special circumstances of the countries as well as the context in which such M&As took place. In sum, policy considerations identified at the Meeting included the adoption and implementation of an appropriate regulatory framework and a competition policy; identification of "correct" price levels of assets to be sold; introduction of safety nets and programmes to train and retrain workers in cases of lay-offs; and establishment of corporate governance rules. Moreover, competition laws and cooperation between competition authorities had been found to be extremely important. The Meeting had emphasized the need to strengthen international cooperation among competition authorities, at the bilateral, regional and multilateral levels. In addition, it had identified areas requiring further research and technical assistance. She reminded the Commission that the recently concluded Fourth United Nations Conference to Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices had similarly recommended the periodic publishing of information on M&As, and cooperation regarding merger control, including in the process of privatization.
37. The Chairperson of the Expert Meeting on Mergers and Acquisitions presented the report on its discussions. It had observed that cross-border M&As had positive effects, as well as risks and challenges, for the host economy. The consensus was that the effects of such M&As depended on the host country's level of development and its policy framework, as well as on the business motivations of companies. The experts had pointed out that "appropriate" policies might vary among countries. Hence, policies or guidelines on M&As needed to be attuned to each country's long-term development objectives, and at the same time to the circumstances under which these M&As were undertaken. With respect to employment effects, provisions had to be made to cushion the impact of M&As in general and that of cross-border M&As in particular, including through the creation of more employment opportunities and support for the training and retraining of workers who might be laid off.
38. He said that it was vital to adopt and implement competition laws where these were not yet in place or were weak. Noting that many developing countries lacked a competition culture as well as the necessary human and material resources to enforce anti-trust and regulatory legislation, he stressed the need to help developing countries, in particular the least developed countries, to develop and implement national competition policies, as well as to formulate policies and measures concerning cross-border M&As. There was also a need to have a common approach to cross-border M&As in the context of regional trade and investment agreements. Furthermore, in addition to national merger reviews, he called for international cooperation among competition authorities. Such cooperation could take the form of an exchange of information among competition authorities, ideally before any M&A deal, joint review mechanisms and standardization of the time limits for notification. Lastly, he said that research on the impact of cross-border M&As in developing countries and economies in transition ought to be pursued further.
39. The representative of South Africa, speaking on behalf of the African Group, noted the uneven impact of cross-border M&As, particularly in developing countries. They had the potential to offer benefits in the form of a transfer of skills and expertise, the facilitation of enterprise linkages with global markets and an immediate injection of capital; but they could create problems related to employment reduction following the restructuring of enterprises, as well as problems arising from the anti-competitive behaviour of foreign firms, the crowding out of domestic enterprises and market concentration in a number of sectors.
40. With respect to Africa's performance in attracting FDI, he noted that Africa continued to receive a marginal share of global flows, despite improvements in the regulatory framework and the business environment. In Africa, cross-border M&As had accounted for 40 per cent of FDI inflows between 1997 and 1999, reflecting the limited share of the region in privatizations, as well as the small number of domestic enterprises with strategic assets or attractive markets which could make them a target for takeovers by foreign firms. Given the importance of competition policy and merger reviews in dealing with the consequences of cross-border M&As, he stressed that the international community needed to continue its support and technical assistance to African developing countries in establishing, strengthening and implementing competition laws. He encouraged the UNCTAD secretariat to continue its research and technical assistance in the field of cross-border M&As. In connection with the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, he recalled that the Fourth United Nations Review Conference had recommended that cooperation regarding merger control, including in the process of privatization, be studied. He added that African countries would greatly benefit from information exchanges among countries in relation to mergers which took place in third countries, but indirectly affected countries of the region. Finally, he urged support from the international community to deal with worker lay-offs resulting from cross-border M&As, given the small government budgets and the lack of social security in most African countries.
41. The representative of Cuba, speaking on behalf of the Group of 77 and China, noted that the Expert Meeting on Mergers and Acquisitions had been both timely and pertinent, since FDI was increasingly taking the form of M&As. This raised the pressing question of the impact on development of cross-border M&As, as opposed to that of greenfield investment. He set out the policy recommendations of the Group of 77 and China to the Commission. First, since cross-border M&As could have positive or negative effects, there was a need for developing countries to have in place a mechanism to analyse their impact, with full recognition of their long-term developmental objectives. Secondly, competition policy deserved particular attention and developing countries would need support in this area in the form of consultation and cooperation among competition authorities. The Group of 77 and China encouraged some forms of ex-ante exchange of information among countries affected by cross-border M&As, and perhaps also joint review mechanisms. Thirdly, the UNCTAD secretariat was urged to continue analysing both the trends and the impact of cross-border M&As on the domestic enterprise sector and on market structure in developing countries. Finally, he invited the international community and the private sector to support developing countries in putting in place effective social security systems to assist workers affected by closures and lay-offs.
42. The representative of Mexico, speaking on behalf of the Latin American and Caribbean Group, indicated that the current wave of cross-border M&As had to be evaluated from a long-term perspective, with due consideration paid to differences in the levels of development. He noted that M&As involving competitors would pose immediate competition problems. Therefore, it was necessary that UNCTAD's analytical work on crossborder M&As continue, focusing on the challenges which they posed for competition policy. These challenges included the impact of M&As on market structure, especially in infrastructure industries, and the need for regional cooperation in taxing those transactions. He stressed that it would be useful to develop information exchange among countries and joint reviews of cross-border M&As. Also, it would be necessary to assist developing countries in the area of asset valuations, in reducing the cost of dispute settlements, in developing the competitiveness of domestic small and medium-sized enterprises, and in retraining employees affected by restructuring. In closing, he expressed the expectation of the Latin American and Caribbean Group that the Commission would encourage prompt application of the recommendations of the Expert Meeting.
43. The representative of Singapore, speaking on behalf of the Asian Group and China, expressed the appreciation of the Asian Group and China for the Expert Meeting on Mergers and Acquisitions. She noted that Asia had been the scene of a large number of cross-border M&As since countries had been opening up to FDI and adopting more liberal policies towards it. She highlighted the policy concerns of the Asian Group and China with respect to M&As. It was their conviction that the effects of an incoming merger or acquisition largely depended on the policies pursued by the host country. In this regard, she noted the usefulness of sectoral reservations, ownership regulations, size criteria, screening, incentives and other special measures. With regard to cross-border M&As taking place under special circumstances, for example the recent Asian financial crisis, she invited the UNCTAD secretariat to continue evaluating the experience of policy responses in the countries affected by the crisis, notably measures taken to alleviate the negative impact of cross-border M&As.
44. One of the concerns of the Asian Group and China was the impact of cross-border M&As on the domestic enterprise sector in general, and on small and medium-sized enterprises in particular. Another concern to be addressed by Governments was that of layoffs, at least in the short run, which might call for policy measures to promote the creation of employment elsewhere. As for competition laws and authorities, the Asian Group and China considered maintaining the contestability of markets and ensuring a culture of competition to be the linchpin of both domestic and cross-border merger policies. They therefore called for special attention to be paid to the establishment and strengthening of competition authorities. In this regard, developing countries in general, and the least developed countries in particular, required international assistance.
45. The representative of China supported the statements made by the Group of 77 and the Asian Group. She commended the high quality of the World Investment Report 2000 and of the UNCTAD Expert Meeting on Mergers and Acquisitions, held in June 2000. She invited UNCTAD to continue studying this issue, particularly in developing countries and economies in transition. Cross-border M&As were becoming increasingly important in many developing countries as a mode of entry for FDI, and could have both positive and negative impacts. Therefore, it was crucial that Governments establish an appropriate policy framework so as to formulate competition and other policies. Referring to her country's experience with market reforms over the past 20 years, she expressed concerns about the ability of the enterprise sector in China, both of some of the large strategic enterprises and also of dispersed small and medium-sized enterprises, to face the challenge of competition by large transnational corporations. Many firms in China needed to be revitalized, and some were using mergers to increase their size and efficiency. In this context, analysis of the M&A experiences of developed countries and of transnational corporations would be of great value.
46. The representative of the United States of America noted the role of FDI in development and said that the effects of cross-border M&As did not generally differ from those of greenfield investments. He nevertheless recognized that M&As within the domestic economy or across the borders of different economies gave rise to specific issues regarding their impact on competition and market concentration. Such issues were common to developed and developing countries and economies in transition. In dealing with them, technical assistance was useful for developing countries. But most important, the host countries should put in place a stable, predictable and transparent policy environment, providing for the protection of property rights, the removal of restrictions, strong legal systems for mediation of disputes, and the elimination of corruption. UNCTAD X had given UNCTAD a major role in the investment area. The Third United Nations Conference on the Least Developed Countries and the Preparatory Committee for the United Nations High-level Meeting on Financing for Development would also deal with these issues. He emphasized the need for UNCTAD to cooperate with other institutions, such as the Organisation for Economic Co-operation and Development (OECD).
47. The representative of Sweden , speaking on behalf of the European Union (EU), urged the Commission to adopt short and action-oriented recommendations. On the issue of cross-border M&As, she said that these did not yield fewer benefits than greenfield FDI in terms of creation of new jobs, quality of employment and transfer of technology . As stated in the report of the Expert Meeting, the extent of benefits derived from inward FDI, including in the form of cross-border M&As, depended on "having the right economic policies, the right level of government activity, a regulatory framework and a competition policy". Investment agreements could serve to create an enabling investment climate through transparency and predictability, and in this regard, she emphasized the contribution that a plurilateral or multilateral investment agreement could make in "locking in" domestic reforms that were implemented by most developed and developing countries. The increase in cross-border M&As gave rise to the risk of firms acquiring dominant market positions and pursuing anticompetitive practices beyond national borders. Accordingly, a vigorous domestic competition policy was necessary, as well as increased international cooperation in this area. The EU was of the view that a multilateral framework agreement on competition policy would ensure that balanced consideration was given to all forms of anti-competitive practices with an international dimension.
48. The representative of Chile supported the statement by the representative of the Group of 77 and China. He said that the question of a multilateral framework on competition policy needed to be given further thought. He noted, however, that there was a general consensus on the questions of transparency and predictability of regulatory frameworks.
49. The representative of the International Confederation of Free Trade Unions emphasized that policy measures in the areas of international investment and competition needed to encompass the core labour standards. Special measures were necessary to deal with the negative impact of cross-border M&As on workers, notably lay-offs and the deterioration of working conditions. Standards could serve to discourage "social dumping" as a means of gaining unfair competitive advantages, and were indispensable in maintaining social and economic stability.
50. The representative of Japan stressed the importance of assistance to developing countries by the international community in formulating and implementing regulatory frameworks and competition laws. He added that the Government of Japan attached priority to technical cooperation in the formulation of laws.
51. The Chairperson of the Expert Meeting on Mergers and Acquisitions stressed the importance of transparency in procedures related to the implementation of competition policy. This was with respect both to the terms of such legislation and to the decisions taken. He said that it was crucial, particularly in countries which lacked a competition culture, that the private sector understand government decisions in this area, and that decision-making procedures be transparent.
52. The representative of the Republic of South Africa, speaking on behalf of the African Group, stressed the need to strengthen regulatory frameworks at the national level. It was necessary that the international community assist African developing countries in establishing regulatory frameworks for competition law and policy. Only 28 African countries had so far implemented regulations relating to competition law and policy, and it was premature to consider initiatives regarding multilateral frameworks. He called on UNCTAD to continue its analytical as well as its advisory work in this area.
Chapter IV
INTERNATIONAL POLICY ISSUES: HOME COUNTRY MEASURES
(Agenda item 4)
53. For its consideration of this item, the Commission had before it the following documentation:
"Home country measures: Note by the secretariat" (TD/B/COM.2/30)
"Home country measures: Note by the UNCTAD secretariat" (TD/B/COM.2/EM.8/2)
"Report of the Expert Meeting on Home Country Measures" (TD/B/COM.2/27 TD/B/COM.2/EM.8/3)
54. The representative of the UNCTAD secretariat introduced the fourth item on the Commission =s agenda, entitled AInternational policy issues: home country measures@. He began by stating that home country measures (HCMs) were policy measures taken by countries to encourage their enterprises to invest abroad, and that home countries included all developed countries. He then noted that in recent years a number of developing countries, and economies in transition, had also become home countries for transnational enterprises. As far as HCMs were concerned, a number of these countries had also begun to actively promote their enterprises' outward investment. He then referred to the Bangkok Plan of Action, which had requested UNCTAD to shed further light on what home countries could do to promote FDI flows and technology transfer to developing countries (paragraphs 118 and 123). UNCTAD=s Expert Meeting on Home Country Measures had been a response to that request.
55. For the Meeting the UNCTAD secretariat had prepared an issues note that identified and described six broad areas of HCMs: information provision and technical assistance; financial support; fiscal incentives; investment insurance; investment-related trade measures influencing the volume, sectoral composition and geographical distribution of FDI in host countries through market access preferences and export promotion devices; and measures geared specifically to the facilitation of transfer of technology. The note also discussed the international dimension, and identified a number of HCMs that could be found in international agreements, suggesting that they lend themselves to international arrangements if all parties so desired.
56. The Expert Meeting had addressed these issues and identified new ones. It had helped to provide a common definition and rationale for HCMs. Furthermore, it had reviewed best practices and acknowledged the importance of effective implementation of international commitments relating to technology transfer by both host and home countries. There had also been various suggestions regarding possible future areas of work for UNCTAD. The key issues and policy proposals by experts were summarized in a note (TD/B/COM.2/30) that was before the Commission.
57. Finally, he said that the Expert Meeting had asked UNCTAD to develop an Internetbased signposting service with regard to relevant home country reference sources on outward investment promotion measures, and announced that a pilot for such a service had been developed as a sub-site to the Web pages of the World Association of Investment Promotion Agencies (WAIPA). He thanked the WAIPA secretariat for its support in this connection, and the member States that had made information available for the service.
58. The Chairperson of the Expert Meeting on Home Country Measures introduced the report of the Meeting and presented its main findings and outcome. She said that it had been charged with exchanging views on national experiences and best practices in existing home country measures, focusing on stocktaking, rationale, effectiveness and impact, and improvements, and with considering the international dimension. Specifically, with regard to stocktaking, experts had been asked to shed further light on the different kinds of HCMs, their spread and their scope, and to expand or update the information provided in the secretariat's issues note. As to rationale, experts had been asked to analyse and examine why home countries took these measures and whether, and why, they formed an important part of a "modern" economic regulatory environment. They had also been asked to benchmark HCMs' effectiveness and impact on development and to identify best practices, so as to provide home countries with workable examples to help them develop their efforts in this area. Furthermore, they had been tasked with drawing lessons from what could be learned about the effect and impact of HCMs on promoting FDI in developing countries in particular, and on the development of developing countries more generally, with a view to providing possible improvements and yardsticks for the road ahead. Finally, regarding the international dimension, experts had been requested to shed further light on the operation of existing HCMs at the international level.
59. She then summarized the key issues and policy proposals by the experts for consideration by the Commission. First, HCMs were applied for a number of reasons, including home and host country objectives. The variety of their objectives required that their design and application be adaptable and flexible, since "no one size fits all". Second, a number of best practices in the application of HCMs that would increase their effectiveness could be identified. Examples included providing accurate, up-to-date and high-quality information; instituting regular home–host country exchanges; promoting creative mechanisms to overcome cultural and linguistic gaps; using interregional exchange forums; providing financial assistance and investment insurance; and agreements on investment protection and double taxation, market access and technology transfer. International arrangements also could, and did, play a role in increasing the efficiency of some HCMs by providing a framework for their cooperative implementation. Third, home country Governments needed to take into account best practices and possible improvements in the area of HCMs when introducing, designing and/or redesigning their HCMs. Fourth, best practices and possible improvements in the area of HCMs also applied to their indirect beneficiaries, i.e. host countries and their private sector. Thus, experts recommended that host country FDI promotion institutions work closely with the home country institutions administering HCMs, and noted the valuable role of the World Association of Investment Promotion Agencies in this context. Finally, the issue of technology transfer was an area of particular interest that warranted further research and intergovernmental deliberations.
Making those provisions in international agreements designed to encourage the transfer of technology more effective than had been done so far was a key factor in such deliberations.
60. The representative of Cuba, speaking on behalf of the Group of 77, said that host countries welcomed HCMs as a complement to their own actions to attract FDI in the interest of promoting their development. Thus, it was recognized that HCMs were one element, although an important one, that played a role in increasing the attractiveness of developing host country investment locations. HCMs could also enhance the quality of the FDI that developing countries received. One issue was how to improve the development benefits that could be derived from these measures. The other issue was how to improve the effectiveness of HCMs and make them more stable, transparent and predictable. In this regard, referring to the recommendations of the Expert Meeting, he highlighted the following: coordination of each home country's efforts, especially for the benefit of its small and medium-sized enterprises (SMEs), so as to increase awareness of investment opportunities, particularly in developing countries; collaboration between home and host country institutions, such as investment promotion agencies and industry associations, including cooperative training; supporting the establishment of industrial infrastructure in host countries (for example, the establishment of consortia involving firms from several home countries to invest in major infrastructure projects in developing countries); a facilitating role played by home country Governments to build capacity in host countries to receive and benefit from investment; ensuring that HCMs and national, regional and international financial assistance programmes (official development assistance) were mutually supportive; and implementation of international commitments relating to technology and its transfer by host and home countries. Finally, he pointed out that for developing countries to take full advantage of such efforts, it would be useful to know what measures home countries were taking to encourage FDI and technology, including, in particular, information on what measures Governments were taking to implement the provisions of international agreements on the transfer of technology. This information should be provided to the secretariat and presented to the Commission.
61. The representative of Nigeria, speaking on behalf of the African Group, noted that HCMs with regard to investment locations in Africa required some measures of retooling or re-articulation. The effectiveness of these measures could be enhanced through tailor-made approaches and regional and country targeting with a degree of predictability. Referring to the recommendations of the Expert Meeting, he stated that these would require collaboration between home and host country institutions, such as investment promotion agencies and industry associations, including cooperative training and support for the establishment of industrial infrastructure in host countries, as well as a facilitating role for home country Governments in building capacity in host countries to receive and benefit from investment, all of which could greatly contribute to the effectiveness of HCMs. In calling for a collaborative effort by home and host countries in the delivery of the benefits of HCMs, his Group recalled that although potential FDI recipients might offer suggestions regarding how such policies and programmes could aid their development, it was the home countries alone that fully controlled the formulation of goals, procedures and implementation. The African Group thought that this practice had the potential for generating the unintended result of securing FDI benefits, by and large, within the borders of the home country. It invited home country Governments to take into account the outline of best practices in the report of the Expert Meeting when applying, designing and/or redesigning HCMs.
62. There was no doubt that an element of the issue in question was how existing provisions in international agreements intended to encourage outward investment, including transfer of technology, could be made operational more effectively. If practical outcomes, particularly in Africa, were to increase in number, it was imperative that the general statements of policy in the various forms of HCMs existing at the international level be followed by provisions containing a more detailed list of measures or a specific implementation process that would translate policy into practice. The Expert Meeting had referred specifically to the effective implementation of international commitments relating to technology and its transfer, including the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement), by host and home countries as a possible improvement in the application of HCMs. His Group agreed with that assessment.
63. The representative of Singapore, speaking on behalf of the Asian Group and China, said that HCMs could complement host countries' own actions to attract FDI and technology within their overall development promotion objectives. She supported the recommendations of the Expert Meeting that identified factors that could contribute to increased effectiveness of these measures and highlighted the following measures: effective coordination of all aspects of each home country's efforts, especially for the benefit of its SMEs, so as to increase awareness of investment opportunities, particularly in developing countries; collaboration, both bilaterally and multilaterally, between home and host country institutions, such as investment promotion agencies and industry associations, including cooperative training; supporting the establishment of industrial infrastructure in host countries through, for example, the establishment of consortia involving firms from several home countries to invest in major infrastructure projects in developing countries; and effective implementation of international commitments relating to technology and its transfer by host and home countries.
64. The representative of Mexico, speaking on behalf of the Latin American and Caribbean Group, highlighted the need to identify and take into consideration the efforts of developing countries to attract FDI, and also to identify and disseminate information about the measures adopted in home countries to foster the transfer of technology to developing countries. In addition, he noted that cooperation was required between host and home country Governments and private sector institutions in order to increase the effectiveness of HCMs. Finally, he emphasized the study recommended by the Expert Meeting on effective implementation by host and home countries of international commitments relating to technology and its transfer.
65. The representative of Sweden, speaking on behalf of the European Union (EU), recognized the value of the Expert Meeting and the importance of the discussion but noted that HCMs only had effects at the margin. FDI took place when there was an enabling environment. Measures that contributed to that environment included, but were not limited to, reducing political and investment insurance, ensuring legal security through agreements on investment protection, and ensuring predictability through double taxation agreements. The legal protection of intellectual property would facilitate technology transfer. The implementation of this general approach to HCMs was a matter for the individual members of the EU, all of which had their own policy approaches. Of the points on the best practice list, she highlighted a number of factors that contributed to the increased effectiveness of HCMs, namely transparency and minimization of bureaucracy, capacity-building in host countries, and implementation of international commitments. HCMs would, however, have a limited effect without an enabling environment in the host country. The main element for attracting FDI remained domestic policies. At the national level these pertained to a regulatory framework, legal security, combating corruption, political and macroeconomic stability, market size (through regional economic cooperation), growth potential and the availability of infrastructure and human resources. At the international level they pertained to negotiating bilateral investment treaties and negotiating broader investment agreements. She emphasized that the focus should primarily be on fundamentals in host countries and the first objective had to be to improve the basic conditions.
66. The representative of Jamaica, speaking on behalf of the World Association of Investment Promotion Agencies (WAIPA), supported the recommendations of the Expert Meeting and informed the Commission about WAIPA's main activities in providing facilities to promote investment in developing countries. She also expressed her support for the introduction of UNCTAD's signposting service on the WAIPA website, which provided links to relevant home country reference sources on outward investment measures.
67. The representative of Japan said that HCMs had little effect on promoting FDI inflows without an enabling environment in developing host countries. Official development assistance had a great role to play in improving the investment climate with regard to infrastructure, institutional and human capacity-building, and providing information on investment opportunities in developing host countries. He emphasized the importance of collaboration between developing countries through initiatives such as the Asia–Africa Investment and Technology Promotion Center, which was an example of follow-up measures to the Second Tokyo International Conference on African Development (TICAD II).
68. The representative of Zambia said that HCMs in international arrangements provided a framework for cooperation between home and host countries. He referred to Article 66.2 of the TRIPS Agreement, which dealt with the special needs of the LDCs in order to enable them to create a sound and viable technological base.
69. The representative of Switzerland highlighted current measures by the Swiss Government to promote investment and technology transfer to developing countries. He noted that the investment regime in host countries was very important in attracting FDI.
70. The representative of the United States of America said that a liberalized investment policy was crucial in attracting investment and that home Governments should not attempt to direct private investment decisions. Apart from insurance and loan assistance, he did not regard financial incentives to encourage FDI as best practice, because of the allocative distortions they would produce. Furthermore, government interventions in investment decisions and other performance requirements were likely to be more of a deterrent than an inducement to FDI. He concluded by re-emphasizing that a host country's sound investment policy that established an enabling environment for investment was of far greater importance to investors.
71. The representative of China said that HCMs covered a variety of measures. Positive HCMs could contribute to collaboration between home and host country institutions,
establishment of industrial infrastructure in host countries, coordination of home countries' efforts, building capacity in host countries, and transfer of technology.
72. The representative of Morocco suggested that joint ventures were the most effective way to encourage FDI and diffuse technology. In this regard, UNCTAD should promote the establishment of "investment points" with a view to disseminating information on opportunities in host developing countries.
73. The representative of Uganda, supporting the recommendations of the Expert Meeting, said that the help of Governments of home countries was crucial in disseminating information about investment opportunities in host developing countries.
74. The representative of the United Kingdom noted that good governance was among factors that contributed to attracting investment. She added that HCMs played a minor role in encouraging foreign investment in relation to the investment regime in host countries.
75. The representative of Chile, referring to the experience of his country, said that cooperation between developing countries in attracting FDI was also important and should be underlined.
Chapter V
INVESTMENT POLICY REVIEWS: EXCHANGE OF NATIONAL EXPERIENCE
(Agenda item 5)
76. For its consideration of this item, the Commission had before it the following documentation:
"Investment and Innovation Policy Review of Ethiopia" (UNCTAD/ITE/IPC/Misc.4)
"Investment Policy Review of Ecuador" (UNCTAD/ITE/IPC/Misc.2)
"Investment Policy Review of Mauritius" (UNCTAD/ITE/IPC/Misc.1)
"Investment Policy Review of Peru" (UNCTAD/ITE/IPC/Misc.19)
77. The representative of the UNCTAD secretariat introduced the Investment Policy Reviews (IPRs) programme, its objectives, the process involved and follow-up work. Although IPRs were adapted to individual countries' needs, they had a common format and methodology. As mandated by UNCTAD X in Bangkok, they were intended to enrich international discussions with the experiences of countries and regions. Two IPRs had been presented at the fourth session of the Commission and four more would be presented at the current session. In addition, 11 requests for IPRs had been received.
Investment Policy Review of Mauritius
78. The representative of the UNCTAD secretariat, introducing the IPR of Mauritius, said that the latter's FDI performance, which had been good in the 1980s and early 1990s, was declining. It faced the problems of a middle-income country, and the main challenges would be to upgrade and move into higher-value sectors and to enhance outward investment to the region. The IPR recommended that, in order to move to higher-growth FDI, Mauritius build on its various strengths and undertake policy measures. These measures included, in particular, improving the policy and operational framework for FDI, so as to put it on a par with best practice; rationalizing fiscal incentives; setting up a super agency to promote and facilitate investment; fast-tracking privatization; and implementing strategies for upgrading the human capital base. It was noted that Mauritius had very recently taken steps to liberalize the telecommunications sector and to set up a Board of Investment.
79. The representative of Mauritius thanked UNCTAD and its staff for the work done on the IPR, and acknowledged UNCTAD's comparative advantage in analytical work for developing countries. He underscored his Government's commitment to create a better and more conducive environment for investment. Mauritius's development policies had been consistent and based on consensus. Foreign direct investment in the 1980s and early 1990s had been generated by Mauritius's preferential market access to Europe and the United States. The Government considered the IPR timely. Its policy recommendations on the regulatory framework, information technology, the marine sector and regional financial services were in line with the Government's new strategies on industrial development. Considerable efforts had recently been made at the highest level to boost these sectors, including the strengthening of small and medium-sized enterprises and the setting up of the Board of Investment. He stressed that notwithstanding the challenges posed by its geography, market size and resource constraints, Mauritius would continue to take up new challenges. He highlighted the priority attached to human resource development, noting that the Government had recently set up a Ministry for this purpose. The Government remained committed to regional cooperation and integration and to tapping opportunities provided by the United States–Africa Growth and Opportunity Act. He called for greater cooperation with and support from the international and business communities. In conclusion, he stated that he had sought UNCTAD's assistance in rationalizing the fiscal incentives structure in line with the overall policy framework.
80. Participants commended Mauritius for its remarkable achievements and continuing efforts in adapting to the changing world environment. The representative of Singapore drew a parallel between Singapore and Mauritius as regards the limits of growth for small economies. For such economies FDI would be the most efficient means for leapfrogging the scale of development. The representatives of Trinidad and Tobago and Jamaica said that the constraints facing their countries and Mauritius, as small island developing economies, were similar and urged that the international community be sensitive to the challenges with which they would be confronted in a globalized world. Another representative regarded competitiveness as an important factor for small economies in sustaining flows of FDI. Thus, recommendations in the IPR that the investment policy framework achieve best practice and policies on FDI which could help to meet strategic objectives deserved support.
81. To promote Mauritius as a regional hub for financial and business services, participants called for policies that focused on creating capacity for rapid response – in particular, accelerating the privatization programme, removing red tape, and keeping business and telecommunications costs down, as well as strengthening small and medium-sized enterprises (SMEs) by increasing quality and innovation for a quick turnaround in value-added activities. On the latter point, the use of the Internet and B2B portals was deemed important. In addition, it was indicated that to make a mark in the financial markets, Mauritius should target foreign banks with a view to their subcontracting services to it; this would enable the country to benefit from a transfer of expertise. Furthermore, Mauritius should be more visible in international capital markets, which would put its good credit rating to the test. Currently, foreign investors borrowed locally, since the effective rate of interest was lower because of the overvaluation of the Mauritian rupee.
Investment and Innovation Policy Review of Ethiopia
82. The representative of the UNCTAD secretariat, introducing the Ethiopian Review, reminded the Commission that, at the request of the Government of Ethiopia, this review combined in an integrated manner the elements of an Investment Policy Review with those of a Science, Technology and Innovation Policy (STIP) Review. He said that since 1992 there had been a remarkable improvement in Ethiopia's investment policy framework. Entry procedures had been streamlined, most sectors were now open to FDI and attractive guarantee and incentive schemes were in place. The investment regime had improved greatly and was conducive to FDI. However, unlike in many other countries, the policy efforts in Ethiopia had so far been of a catch-up nature. There was need to continue to revise the investment framework and to give priority to investment in physical, technological and educational infrastructure. The challenges included intensifying privatization, better coordination in promoting investment and developing an investment-targeting capability.
83. The representative of Ethiopia expressed his Government's appreciation of the IPR and said that it was timely and useful, particularly since the Government was once again turning its attention to economic growth. He stressed that his country's major challenges were poverty and backwardness. As it was aware of the key role played by investment in tackling those problems, the Government had created a liberal policy environment conducive to both domestic and foreign investment. Most of the recommendations in the IPR were in line with the Government's overall policy objectives, and he called on bilateral and multilateral development partners to assist Ethiopia in implementing the recommendations.
84. Participants welcomed the combining of an Investment Policy Review with a Science, Technology and Innovation Policy Review, which was an innovation since it helped to show the direct linkage between both elements in the process of strengthening economic performance through improved competitiveness. More importantly, this Review, like the Jamaican Review undertaken earlier, drew attention to the broad applicability of innovation to development and showed the existence of innovation across a range of enterprises. In this respect, it made a significant contribution to the demystification of the process of technological development. Moreover, a clear lesson that emerged was that poor countries were not a desert as far as innovation was concerned, and that Governments needed to pay special attention to the innovation actually taking place in domestic enterprises. This would require the designing of policies to foster and strengthen a culture of innovation.
85. The Ethiopian Government's efforts to create an investment-friendly policy environment were praised. It was stressed, however, that in order to ensure positive responses by investors, constraints on infrastructure and technical skills must be dealt with without delay. As indicated in the Review, easing those constraints was a prerequisite for enhancing supply capacity and attracting additional FDI. Discussants noted that official development assistance could play a complementary role as a source of additional finance aimed at targeted constraints, especially in transport, energy, institution-building and the development of communications infrastructure. One discussant, referring to SME development in northern Italy, highlighted the lessons for Ethiopian SMEs, especially the need for policy coordination at the central and regional levels of government and the important role of supporting institutions.
86. It was noted that in attracting foreign investment the important elements were political stability, skills and well-developed infrastructure. Participants supported key aspects of the investment promotion strategy mentioned in the Review, namely the need for horizontal and vertical information flows, a coordinated and well-focused investment strategy, inter-firm partnerships, and linkages in the supply chain.
87. The representative of Kenya thanked the UNCTAD secretariat for assisting Ethiopia through the IPR mechanism. As a neighbouring country, Kenya had a direct interest in seeing economic development in Ethiopia and was willing to support it, including by providing access to the sea.
Investment Policy Review of Peru
88. The representative of the UNCTAD secretariat, presenting the highlights of the IPR of Peru, noted that the Government of Peru offered investors a sound economic and business environment, and a state-of-the-art investment framework, essential foundations that must be maintained if Peru was to continue to be an attractive destination for FDI. In order to sustain the competitiveness of FDI in the industries attracting FDI, linkages between suppliers and related industries should be strengthened. Peru's potential for new FDI could be developed by longer-term policies to enhance innovation in the productive sector. The IPR's recommendations included policy measures for improving infrastructure, technology and innovation, as well as the quality of suppliers and education. Bolder investment promotion initiatives should be envisaged in order to go beyond the successes achieved so far with privatization and concession of public assets and services. A single investment promotion centre would facilitate this endeavour.
89. The representative of Peru endorsed the secretariat's recommendations contained in the IPR. He stressed that the privatization programme already completed would generate new foreign direct investment, and that the Government would introduce after-care services for investors. In the area of infrastructure, the Government intended to continue the concession programmes to improve the services provided by ports and airports, and would extend the programmes to areas such as electricity and irrigation. In addition, it recognized that Peru's resource endowments had not been fully exploited. It also recognized the need to strengthen science, technology and innovation policies and requested UNCTAD's assistance in their formulation through a Science, Technology and Innovation Policy Review. In future, Peru's investment promotion policies would focus on cluster development, particularly in the areas of mining, agriculture, fishing and tourism. To further ease the investment process, the Government would consider the establishment of a "one-stop shop". In addition, it would endeavour to strengthen Peru's integration into the world economy and would continue to play an active role in the regional integration process.
90. The lessons learned from the successful privatization programme carried out by Peru were considered with interest. Before privatization, the Government had set up regulatory agencies that ensured that public monopoly was not replaced by a private one. It was encouraged to make additional efforts to secure a stable, secure and predictable investment environment. When introducing competition in a sector, it was important not to stop the privatization process so as to avoid altering the regulatory environment for investors. Regulatory agencies should have clear functions and rules, particularly when there were public and private enterprises operating in the same sector. Another area for improvement was the streamlining of legal stability agreements, which were considered an important element for guaranteeing legal and juridical stability to investors. It was suggested that such agreements should maintain their validity when companies were merging or changing their operational structure.
91. To tap investment potential, the Government was encouraged to promote new areas, such bio-trade, electronic commerce and eco-tourism. The establishment of a single tourism authority would facilitate the promotion of investment in diversified tourism products and heritage conservation. Also, the Government should consider measures to attract more investment by SMEs and to strengthen their linkages with large firms. Finally, in addition to fine-tuning the investment framework, Peru should maintain the strong linkage already established between open trade and investment policies. It should also ensure the continuity of investment policies and strengthen the rule of law.
Investment Policy Review of Ecuador
92. The representative of the UNCTAD secretariat presented the highlights of the IPR of Ecuador. He said that UNCTAD's recommendations underscored the importance for Ecuador of restoring stability and resuming growth. Political stability was one of the fundamental conditions for improving the business environment. Equally important were the stability and transparency of economic laws and regulations, including those on tax, labour, and property. Building social consensus around reforms was another critical area. With regard to the investment framework, the Constitution had improved treatment and provided new guarantees to investors, but enforcement remained problematic. A case in point was the enforcement of property rights, where there was uncertainty in areas such as mining, petroleum exploration and the exploitation of biological resources. The Government should implement a viable privatization programme, which was the key programme for the immediate realization of FDI potential in a still large state-owned sector. The Government should also design policies aimed at increasing the long-term benefits from FDI. Four policy areas in particular were crucial, namely human resource development, science and technology, competition, and policies aimed at improving competitiveness, including the creation and strengthening of linkages between foreign and local enterprises. UNCTAD's recommendations included the establishment and launch of an investment promotion programme and the setting up of an investment promotion unit.
93. The representative of Ecuador expressed his country's appreciation for the work carried out by the secretariat. The IPR would constitute an important basis for Ecuador to work in an organized and coordinated manner on investment promotion, and would assist the Trade and Investment Corporation (CORPEI) in attracting FDI to export industries. The Government had already undertaken a number of policy reforms to restructure foreign debt, strengthen the banking system and rationalize the complex tax system. CORPEI, following UNCTAD's recommendations, would work closely with CONAM, the agency in charge of privatization. The Government was fully aware that dollarization should be accompanied by measures to improve enterprise competitiveness. It intended to establish a council on competitiveness and devise a special programme to support private sector development. CORPEI endorsed UNCTAD's recommendations on investment promotion, and considered that now was the right time to start investment promotion activities in conjunction with export promotion. It would draw up an investment promotion strategy and establish an investment promotion unit. However, since it did not have experience in investment promotion, further assistance from UNCTAD in this area would be welcome.
94. The efforts by the Government of Ecuador to reorient its economy in the right direction were encouraged. The establishment of the Solidarity Fund to manage funds from privatization was considered a good and novel tool to support social development and achieve social consensus on reforms. Representatives of developing countries expressed interest in Ecuador's experience with dollarization and its significance for development and possible negative effects. After the introduction of the euro, developing countries in Africa might face a challenge similar to that faced by countries in the process of dollarization in Latin America.
95. It was noted that Ecuador's investment climate had deteriorated. Some deficiencies were structural, and much had to be done to restore investors' confidence. Areas for improvement were financial regulations, the banking system and basic infrastructure services. Furthermore, dollarization forced enterprises operating in Ecuador to convert their balance sheets into dollars and to re-evaluate assets, and readjustments in the fiscal area might be necessary. Overall, the country needed to improve the enabling environment and the rule of law, and to strengthen its institutions. It was encouraged to introduce a viable privatization programme and to learn from the experience of Bolivia, which had adopted a capitalization scheme when privatizing public enterprises. The role of investment banks, lending institutions and financial intermediaries should be re-examined. Finally, Ecuador should pursue an aggressive investment promotion plan, particularly in oil.
Follow-up to earlier Investment Policy Reviews
96. The representative of Uganda, whose investment policies had been reviewed at the fourth session of the Commission in 1999, reported that during the past year it had implemented many of the recommendations in the IPR, with support from UNCTAD, the United Nations Development Programme and the Swiss Government. The number of FDI projects registered in 2000 was twice that in the previous year. The IPRs made it possible to mobilize the countries' policy makers to take action on problems of which they were already aware. In Uganda's case, the President had taken responsibility for the implementation of the recommendations contained in the IPR.
General discussion on Investment Policy Reviews
97. The representative of the United States of America said that his delegation had been unable to participate fully in the discussion on the IPRs. This was because the relevant documents had been not received sufficiently far in advance to enable reactions to be received from his country's authorities. He therefore requested that the documents for the IPRs at the sixth session of the Commission be made available at least six weeks in advance.
98. The representative of Sweden , speaking on behalf of the European Union , said that the IPRs and the ensuing discussion had been most useful. However, the amount of time allocated for each review and discussion – one and a half hours – was insufficient, particularly in view of the participation of high-level representatives. She suggested that, on the basis of informal consultations with member States, the secretariat draw up a proposal to revise the format for this agenda item. It should be aimed at ensuring not only that more time was allocated for discussion in the Commission but also that IPR documents were made available between four and six weeks before the Commission's session so as to allow member States adequate time to study them and thus to participate fully in the discussions. The item could be taken up either at the beginning or the end of the session. It would be useful if the secretariat's proposal could be tabled at the forthcoming meeting to review the functioning of the intergovernmental machinery.
99. The representative of South Africa, speaking on behalf of the African Group, expressed his appreciation for the IPRs, which played a useful role in helping developing countries to attract foreign direct investment. His Group looked forward to more IPRs for African countries, but they should not place an undue burden on the countries concerned. While welcoming inclusion of an item on IPRs in the agenda for the Commission's sixth session, he said that discussion of IPRs required more time than was currently allocated. Consequently, he supported the previous speaker's request that the secretariat draw up a proposal in this connection.
100. The representative of Mexico, speaking on behalf of the Latin American and Caribbean Group, said that the IPR documents should be circulated well in advance of the Commission's session so that they could be given proper attention. More time was also needed for discussion of them in the Commission.
101. The representative of the UNCTAD secretariat agreed that the IPR documents should be made available earlier, and said that the secretariat would endeavour to ensure that this was done in future. To enable participants to discuss the Reviews in grater detail more time would indeed be necessary. This question needed to be studied, and he noted the suggestion made by the representative of Sweden in this connection.
Chapter VI
REPORTS OF THE SUBSIDIARY BODIES OF THE COMMISSION
(Agenda item 6)
102. For its consideration of this item, the Commission had before it the following documentation:
"Report of the Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting on its Seventeenth Session" (TD/B/COM.2/25 - TD/B/COM.2/ISAR/10)
103. The Chairperson of the Intergovernmental Working Group of Experts presented the report on the Group's seventeenth session. He said that it had been attended by 93 experts from 53 countries, 10 national and regional professional associations and three regional and international organization. The main topic discussed had been the accounting needs of small and medium-sized enterprises (SMEs). The Group had identified several obstacles faced by SMEs in maintaining accurate records and generating meaningful financial reports, and had agreed on certain characteristics that a system of financial accounting and reporting for SMEs needed to have. It had then decided to hold ad hoc expert consultations during the intersessional period and work towards identifying an accounting and reporting framework for different types of SMEs that incorporated those characteristics. The results of the consultations would be considered by the Group at its eighteenth session.
104. He then briefly described the follow-up work on the Group's fifteenth and sixteenth sessions – namely, the work on environmental performance indicators and the assessment of professional qualification requirements, respectively. Lastly, he reported on the Group's publications, technical cooperation, and liaison with the other international bodies and civil society.
105. The representative of Sweden , speaking on behalf of the European Union , said it would be desirable, in future, to have more detailed information about the reports of the subsidiary bodies at an early date.
Action by the Commission on agenda item 6
106. The Commission endorsed the report of the Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting, as contained in document TD/B/COM.2/25 - T/D/B/COM.2/ISAR/10, and approved the provisional agenda for its eighteenth session contained therein.
Chapter VII
OTHER BUSINESS
(Agenda item 7)
Activities of the Division of Investment, Technology and Enterprise Development
107. The representative of the UNCTAD secretariat presented the activities of the Division on Investment, Technology and Enterprise Development (DITE) in the period between the two sessions of the Commission He said that at UNCTAD X, DITE had been entrusted with the implementation of paragraphs 113–128 and 154–155 of the Bangkok Plan of Action, which entailed additional mandates in its traditional areas of work and the redeployment of some activities (portfolio investment, banking and insurance, and microfinance) from other Divisions. In that context, DITE had been restructured. DITE was responsible for servicing one and a half of UNCTAD's three main Commissions, plus the Commission on Science and Technology for Development, as well as relevant agenda items considered at the United Nations General Assembly, the Economic and Social Council, and the Trade and Development Board. Also, it produced one of the three UNCTAD flagship publications, i.e. the World Investment Report. During the reporting year DITE had organized and serviced over 70 (more than one a week) conferences, symposia, meetings and workshops, including 22 training activities; undertaken a number of advisory missions; produced over 50 publications (including electronic versions on the Web), such as books, manuals, reviews, reports, issues papers and booklets; and issued 39 press releases or notes. Currently, it maintained four specialized databases and managed 20 projects and programmes. It gratefully acknowledged the financial contributions and the contributions in kind from a number of donor countries and international organizations.
108. The representative of South Africa, speaking on behalf of the African Group, praised the report on DITE's activities and expressed his appreciation for the support provided by donors.
109. The representative of the United Kingdom asked whether the databases were available on the Internet.
110. The representative of the UNCTAD secretariat said that part of the information contained in those databases could be made available to the public.
Commission on Science and Technology for Development
111. The representative of the UNCTAD secretariat briefed delegates on the work of the Commission on Science and Technology for Development. The Commission, which was a subsidiary of the Economic and Social Council (ECOSOC) and was serviced by the UNCTAD secretariat, had been established in 1992 as a result of the restructuring of the United Nations in the economic, social and related fields. Its purpose was to provide the General Assembly and ECOSOC with advice on relevant science and technology issues through analysis and appropriate policy recommendations. It was composed of 33 member States elected by ECOSOC for a term of four years, and had met for the first time in 1993. So far, it had held four regular sessions, at which it had determined the priorities and substantive themes to be considered by its members and the support to be provided by the secretariat during the inter-sessional period. Its Bureau, elected at each session, set up ad hoc panels to work on the themes chosen. They were responsible for the reports on those themes, normally prepared by the UNCTAD secretariat, to be presented to the Commission at its regular session. At its most recent session, held in May 1999, the Commission had selected "National capacity-building in biotechnology" as its substantive theme for the inter-sessional period 1999–2001. The focus of that theme was on capacity-building for biotechnology applications, with particular attention to agriculture and the agro-industry, health and the environment. In this connection, three panels had been established – on capacity-building in biotechnology, legal and regulatory issues in biotechnology, and public awareness and participation in science policy-making in biotechnology – and each had held a meeting in 2000. Their findings and recommendations would be considered by the Commission at its fifth regular session, scheduled to take place in Geneva from 28 May to 1 June 2001.
Action by the Commission on agenda item 7
112. The Commission took note of the reports on the activities of the Division on Investment, Technology and Enterprise Development and the Commission on Science and Technology for Development.
Chapter VIII
ACTION BY THE COMMISSION AND CLOSING STATEMENTS
Action by the Commission
113. At its 32 nd (closing) meeting, on 16 February 2001, the Commission adopted its agreed recommendations on agenda items 3 and 4 (see chapter I). It also adopted the draft provisional agenda for its sixth session (see annex I).
Closing statements
114. The representative of the UNCTAD secretariat said that the Commission had had very useful and substantive discussions and that the recommendations adopted were relevant to the work of individual countries. The IPRs had demonstrated their value, with the highlevel representation reflecting the importance which countries attached to them. As suggested, the secretariat would produce a proposal to improve the general format for this agenda item, with particular regard to the early circulation of documents and the amount of time allotted for discussions.
115. The Chairperson said that the Commission had had a fruitful session, conducted in a spirit of efficient cooperation which was particularly noteworthy in view of the complex issues discussed. The allocation of more time to the discussion of IPRs would help ensure that they were profitable both for the countries concerned and for investors.
116. The representative of Mexico, speaking on behalf of the Latin American and Caribbean Group, said that UNCTAD had a key role to play in its various fields of activity and that the work of the Commission was on the right path.
117. The representative of Sweden , speaking on behalf of the European Union , said that the Commission had held useful discussions on a number of complex issues, and she welcomed the secretariat's willingness to submit a proposal to improve the format of the agenda item on IPRs. The European Union looked forward to participating in the forthcoming review of the functioning of the intergovernmental machinery, at which it hoped the secretariat's proposal would be tabled.
118. The representative of the United States of America said that an important dialogue had been held thanks to the efforts of the secretariat. His delegation attached particular importance to the Investment Policy Reviews.
Chapter IX
ORGANIZATIONAL MATTERS
A. Opening of the session
119. The fifth session of the Commission on Investment, Technology and Related Issues was held at the Palais des Nations, Geneva, from 12 to 16 February 2001. In the course of the session, the Commission held seven plenary meetings (the 26 th to 32 nd meetings) and five informal meetings. The session was opened on 12 February 2001 by Mr. Rubens Ricupero, Secretary-General of UNCTAD.
B. Election of officers
120. At 26 th plenary meeting, on 12 February 2001, the Commission elected its Bureau as follows:
Chairperson:
Mr. Jean-Luc Le Bideau (France)
Vice-Chairpersons:
Ms. Irina Ananich (Belarus)
Mr. Rafael Parades Proaño (Ecuador)
Mr. Sherif Kamel (Egypt)
Ms. Margaret Liang (Singapore)
Ms. Eleanor Fuller (United Kingdom)
Rapporteur:
Mr. Younes Tijani (Morocco)
C. Adoption of the agenda and organization of work
(Agenda item 2)
121. At the same meeting, the Commission adopted the provisional agenda circulated in document TD/B/COM.2/28. Accordingly, the agenda for the fifth session was as follows:
1. Election of officers
2. Adoption of the agenda and organization of work
3. Impact of international investment flows on development: Mergers and acquisitions – policies aimed at maximizing the positive and minimizing the possible negative impact of international investment
4.
International policy issues: Home country measures
5. Investment policy reviews: Exchange of national experience
6. Reports of the subsidiary bodies of the Commission
7. Other business
8. Adoption of the report
D. Adoption of the report
(Agenda item 8)
122. At its closing plenary meeting, the Commission adopted its draft report (TD/B/COM.2/L.11 and L.11/Add.1), subject to any amendments to the summaries of the statements, and authorized the Rapporteur to finalize the report in the light of the proceedings of the closing plenary meeting.
Annex I
PROVISIONAL AGENDA FOR THE SIXTH SESSION OF THE COMMISSION
1. Election of officers
2. Adoption of the agenda and organization of work
3. Impact of international investment flows on development: The impact of FDI policies on industrialization, local entrepreneurship and the development of supply capacity of developing countries, in particular the least developed countries
4. International policy issues: International arrangements for transfer of technology: Best practices for access to and measures to encourage transfer of technology with a view to capacity building in developing countries, especially in least developed countries
5. Investment policy reviews: Exchange of national experience
6. Reports of the subsidiary bodies of the Commission
7. Progress report on the implementation of agreed conclusions and recommendations of the Commission
8. Other business
9. Adoption of the report
Annex II
ATTENDANCE ∗∗
1. The following States members of UNCTAD were represented at the session:
Albania
Angola
Belarus
Belgium
Benin
Bhutan
Brazil
Bulgaria
Chile
China
Colombia
Congo
Costa Rica
Croatia
Democratic People's Republic
of Korea
Ecuador
Egypt
Ethiopia
Finland
France
Germany
Guatemala
Honduras
India
Indonesia
Iran (Islamic Republic of)
Iraq
Italy
Jamaica
Japan
Kenya
Lebanon
Lesotho
Malawi
Mali
Malta
Mauritius
Mexico
Morocco
Netherlands
Nicaragua
Nigeria
Norway
Panama
Peru
Philippines
Poland
Portugal
Romania
Russian Federation
Saudi Arabia
Singapore
Slovakia
South Africa
Spain
Sri Lanka
Sweden
Switzerland
Thailand
Tunisia
Turkey
Uganda
United Kingdom of Great Britain
and Northern Ireland
United Republic of Tanzania
United States of America
Uruguay
Venezuela
Viet Nam
Yemen
Yugoslavia
Zambia
Zimbabwe
∗ For the list of participants, see TD/B/COM.2/INF.5.
2. The following intergovernmental organizations were represented at the session:
Arab Labour Organization
Commonwealth Secretariat
European Community
Organisation for Economic Co-operation and Development
Organization of the Islamic Conference
3. The following specialized agencies and related organization were represented at the session:
International Monetary Fund
United Nations Industrial Development Organization
World Trade Organization
4. The International Trade Centre UNCTAD/WTO was represented at the session.
5. The following non-governmental organizations were represented at the session:
General Category
Engineers of the World International Confederation of Free Trade Unions World Federation of United Nations Associations
6. The following special invitee attended the session:
Mr. Gesner Oliveira, Chairperson of the Expert Meeting on Mergers and Acquisitions
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A PHENOMENOLOGICAL STUDY OF PRE-SERVICE TEACHERS REGARDING 21ST CENTURY TECHNOLOGY INTEGRATION TRAINING
Christopher Clark Ed.D. 1 and Dawn D. Boyer, Ph.D.
2
1 Robeson County Public Schools,NC,USA 2 D. Boyer Consulting,Virginia Beach,VA,USA
ABSTRACT
The purpose of this transcendental phenomenological study was to understand how in-service teachers with 3-5 years of experience perceived their pre-service training regarding integration of 21 st Century technology into instruction. Twenty participants from a rural public school system in southeast North Carolina participated. This study attempted to describe: How do 3 rd – 5 th year teachers in one public school district in North Carolina describe college experiences with educational training to integrate 21 st Century technology into their classroom lesson plans? Through interviews and a focus group themes were identified through the participant's perceptions of the phenomena of 21 st Century technology integration training. Participants identified these themes: (a) exposure to basic uses of technology, (b) 21 st Century technology assignments were neither purposeful nor rigorous, and (c) the majority of integration of confidence and/or competence began after field placements. Themes were used in developing a list of best practices as articulated by the participants.
KEYWORDS
Train-the-teacher, best practices, pre-service technology training, technology integration, traditional licensure training
1.INTRODUCTION
A survey by the National Center for Educational Statistics found fewer than half of 3,000 teachers surveyed used technology often during instruction (Gray, Thomas, & Lewis, 2010). Although state standards and NCATE standards for accreditation require teachers to integrate technologies, inadequate training in the use of technology as an instructional tool continues to be a barrier to successful integration of 21 st Century technologies (Zhao, 2007).
State, NCATE, and ISTE standards prefer student-centered technology that supports collaboration between teacher and student while improving the traditional teacher-centered approach to teaching, very few teachers employ technology in this manner (Ottenbriet-Leftwich, Glazewski, Newby, & Ertmer, 2010). Teachers do report they use "technology to facilitate student learning" (Ottenbriet-Leftwich et. al., 2010, p. 1321), but only one-third surveyed stated they "required their students use computers more than a few times a week" (Ottenbriet-Leftwich et al., 2010, p. 1321).
When referring to the newly released USA Department of Education's National Education Technology Plan (NETP), Arne Duncan, the U.S. Secretary of Education, stated, "We have an unprecedented opportunity to reform our schools … we must dramatically improve teaching and learning, personalize instruction and ensure that the educational environments we offer to all students keep pace with the 21 st Century" (U.S. Department of Education, 2010). Systemic change requires much more than confidence; university level leaders need to transform training; instead of focusing on teaching 21 st Century technology the focus shifts to teaching with the 21 st Century technology. Instead of exposing pre-service teachers to 21 st Century technologies as tools, these 21 st Century technologies should be seen as tools to transform the act of teaching itself.
To integrate technology, teachers must possess requisite technology-based skills, knowledge, abilities, and attitudes (Teclehaimanot, Mentzer, & Hickman 2011). While research exists to illustrate how often or the kinds of technology employed in classrooms (Pitler, 2011), there is not enough research for best practices in training teachers during pre-service programs to demonstrate how to effectively integrate 21 st Century technologies into instruction.
Transcendental phenomenology focuses on the completeness of experience and the search for the essence of experience. Thus the researcher views experience and the actual behavior related to the experience as an "integrated and inseparable relationship of subject/object (Moerer-Urdahl & Creswell, 2004, p. 6). The researcher engaged in a transcendental process because the researcher sees the phenomenon "freshly, as for the first time" (Moustakas, 1994, p. 34) and is "open to its totality" (Moerer-Urdahl & Creswell, 2004, p. 6). This transcendental phenomenological study's purpose was to understand how in-service teachers with 3-5 years of experience perceived their pre-service training regarding the integration of 21 st century technology after entering their disciplinary field of classroom instruction.
1.1.Theoretical Framework
Andragogy, the theory of adult learning, as espoused by Knowles (1980) is one theoretical framework employed while analyzing data and identifying themes. In 1921, a German social scientist, Eugene Rosenstock argued, "adult education required special teachers, special methods, and a special philosophy" (Knowles, Holton, & Swanson, 1998, p. 59). Reflective learning situations assist a student in understanding learning habits and helps move them toward new understandings of the information presented.
There are five themes inherent in the andragogical adult learning model. For learners, as they grow into adulthood, the following occur: (a) self-concept moves from being a dependent learner to a self-directed one, (b) experience level increases to become an invaluable learning resource, (c) 'readiness to learn' orients itself to developmental tasks related to social roles, (d) timeperspective related to application of knowledge moves from postponed applications to one of immediacy, and focus moves from a subject-centered to a problem centered orientation, and (e) motivation to learn becomes internally driven (Knowles, 1984b, p. 12). The interplay between themes improves understanding of adult learner ability to internalize new content and is invaluable in creating pre-service 21 st Century training objectives.
Technological Pedagogical Content Knowledge (TPCK or TPaCK) is a technology-based, theoretical framework describing a relationship between a teacher's knowledge of technology, pedagogy, and content. TPaCK is derived from Schulman's work (1986) where he theorized teachers need a new knowledge and Pedagogical Content Knowledge (PCK). PCK is defined as the knowledge of pedagogy specific to particular content areas. This knowledge adds to the subject topic to include the "dimension of subject matter knowledge for teaching" (Shulman, 1986, p. 9).
TPaCK also provides an integrated framework for understanding how technology connects to "content knowledge and knowledge of teaching" (Kereluik, Mishra, & Koehler, 2010, p. 13). Content Knowledge (CK) is knowledge about a topic to be learned. Pedagogical Knowledge (PK) is knowledge regarding processes and methods of teaching. Technology Knowledge (TK) is knowledge about existing and emerging technologies. Interactions between these specific bodies of knowledge are also important. Pedagogical Content Knowledge (PCK) is knowledge of pedagogy specific to a particular content. Technological Content Knowledge (TCK) is knowledge about how technology and content "influence or constrain one another" (Kereluik et al., 2010, p. 14). Technological Pedagogical Knowledge (TPK) is knowledge on how technology changes the act of teaching and learning. Knowing how participants position new learning of 21 st Century technologies within their current knowledge of content and pedagogy will be an important step in identifying exemplary training scenarios.
2. METHOD
The transcendental phenomenological approach was employed to define the qualitative aspects of incorporating technologies into one's pedagogy. Following Clark Moustakas's Phenomenological Research Methods (1994) the study included individuals with a common experience, which was invaluable in reporting themes with how pre-service teachers viewed training experiences related to implementation of technology and identifying best practices as articulated by the participants.
2.1.Site
The study was conducted in a rural public school system in SE North Carolina using the snowball sampling method during site selection. There are 43 schools within the district classified as either rural (n = 19) or small city (n = 24) schools. The majority (81%, n = 35) of these schools are designated as Title I schools per district publications. Creswell (2007) described the purpose of snowball sampling to identify "cases of interest from people who know people who know what cases are information-rich" (p. 127).
Criteria for site selection was predicated on a 3:1 ratio of students per computer, for each school selected, which is slightly below the district average of 2.02:1 (Education First NC School Report Cards, 2011). Per the Education First NC Schools Reports Cards for this district 38 (88%) of the schools have a ratio of 3:1 students per computer or better. Schools with the required ratio of computers per student were contacted and asked to participate. District level consent and IRB approval was obtained to conduct this study prior to site and participant selection.
2.2.Participants
Intensity sampling was employed in selection of the participants. Intensity sampling means participants are not the ones most likely or least likely to integrate 21 st Century technology, but are more or less likely, which essentially eliminated extreme outliers. This participant sampling provided "information-rich cases that manifests the phenomenon intensely, but not extremely" (Creswell, 2007, p. 127).
Polkinghorne (1989) recommends researchers interview between five to twenty-five participants when conducting interview-based research. Twenty classroom teachers with 3-5 years of experience and licensed to teach (completion of an education program at an accredited institution of higher education) were interviewed as a sample group from the identified population. Participants were from six schools, including five elementary and one high school. Four participants (20%) were high school and 16 (80%) were elementary school teachers. Participant demographics are found in Table 1 with their pseudonyms.
Table 1 - Participant Demographics.
The researcher ensured the study sample population had completed a traditional, university level, licensure teacher education program to ensure participation in methods and technology courses. Selecting 3 rd through 5 th year teachers facilitated the understanding of participant perceptions of current pre-service training and preparedness at a university level. Selection criteria ensured selecting individuals who had experienced the phenomena of pre-service training apropos integration of 21 st Century technologies into their instruction.
3.DATA COLLECTION
This qualitative study used transcendental phenomenological methods to describe pre-service teacher's perceptions of preparedness to integrate 21 st Century technology. The researcher is the human instrument (Guba, 1981) that collected data on shared experiences of participants using interviews, and employing a focus group after receiving IRB approval. The phenomena studied, was 21 st Century technology integration training during the college of education program. Interviews and a focus group session assisted in the determination of how participants perceived their 21 st century technology integration training while pre-service learners.
3.1.Interviews
The interview questions (listed below) were designed to elicit data regarding participants' feelings about training they received as pre-service 21 st Century technology integration learners. Interview questions were generated from and grounded within existing research literature. Next, content subject matter experts (SMEs) reviewed the interview questions within the arena of technology education training to verify content validity. Lastly, the interview questions were test-piloted with a non-participant to ensure the questions were clear.
Interviews employed the long interview method utilizing an "informal, interactive process, and utilizes open-ended comments and questions" (Moustakas, 1994a, p. 114). Interviews were audio and video recorded and conducted in the participant's individual classroom or in the school's conference room.
3.2.Technology Training at the Pre-service Level Interview Questions
1. Describe the kinds of activities and classroom interactions in which you were engaged during your college of education experience that strengthened your capacity to integrate technology.
2. Explain how technology employed by your instructor during your methods and/or technology courses improved your competency in utilizing technologies to teach.
3. Describe a typical assignment in which you were required to design a technologyintegrated curriculum project.
4. In terms of collaboration (interactions with staff and student peers), what were the characteristics of the planning session for the assignment?
5. Describe how field experiences helped develop the ability to integrate technology into your pedagogy.
6. Describe how your student teaching placement assisted in developing technology integration competence.
3.3. Focus Group
A focus group was employed to gain verifiable data. The researcher served as the moderator in the focus group, allowing participants to dynamically interact, while discussing answers to questions (Creswell, 2007).
The focus group questions listed below were subjected to a three-step process in establishing face- and content-validity. First, each of the six focus group questions were generated from and grounded within the existing research literature. The focus group questions were reviewed by content SMEs within the field of technology education training. A pilot group helped to develop the focus questions from a non-experts pool to ensure questions were clear.
One focus group session was held after receiving IRB approval. All participants were invited to attend this session, however only six participants attended.
3.4. Focus Group Questions
1. What specific training, courses, or experiences have enabled you to employ technology into your pedagogy methods?
2. In what ways did your college professors utilize technology?
3. In your college education experience, what strategies worked and which did not in attempts at helping you understand technology integration techniques.
4. Is there anything else you would like to add regarding your training?
4.DATA ANALYSIS
Bracketing is defined as, "The first step in phenomenological reduction, the process of data analysis in which the researcher sets aside, as far as is humanly possible, all preconceived experiences to best understand the experiences of participants in the study" (Creswell, 2007, p. 235). Bracketing is followed by the first phase of the data-mining, where selected statements are viewed as unique participant's statements to illustrate researched phenomena (Creswell, 2007). When creating this list the researcher methodically considered literal content and number of occurrences for a statement.
The researcher described textural qualities of the phenomena as experienced by the participants, and then employed the methodology of 'horizonalization' to imagine the phenomena in a multiplicity of ways. Horizontilization is creating a listing of statements having "equal value" (Moustakas, 1994, p. 180) the first phase of data mining, in that the selected statements were viewed as unique statements made by participants and were seen to illustrate the researched phenomena. This step required the researcher observe and describe what was seen from the "vantage point of self-awareness, self-reflection, and self-knowledge (Moustakas, 1994, p. 95). In this phenomenological data analysis step, the researcher grouped significant statements into larger units of similar meaning or themes. Redundancy was eliminated and themes were created within units of meaning that indicated significant topics within clustered groups (Creswell, 2007). Finally, the researcher combined textural and structural descriptions into a description of the essence of the studied phenomena.
4.1.Composite Textural description
When participants reflected on their college of education experience for 21 st Century technology integration training, they described the experience using the following terms: "just used PowerPoint," "were not engaged," "mostly lecture," and "Microsoft Word." Participants noted professors "simply lectured" or "just used the SMART Board to display notes," or "only used communications technology like Blackboard and email." Exceptions were some participants whom mentioned a software technology by name, "Geometer's Sketchpad," WebQuests," and "SMART Board tools." Significantly, these participants were either mathematics majors or minors and had more exposure to technology usage models.
Participants spoke about assignments experience using statements, "PowerPoint," "present to professors," "lesson plan," "type," "graph," and "teacher website." One participant noted, "I already knew … PowerPoint," while another stated "I just don't see where it [technology training] really helped..."
There were notable exceptions to participant's expectations for assignments. The following terms were noted in statements, "activities to perform," "construct polygons," "bisect angles," and "geometry come to life." Again, these terms were noted from either mathematics majors or minors participants.
When speaking of college of education experiences, another grouping of terms were clustered. Participants said, "I came well-rehearsed in SMART Board through field experience," "field experience really helped me," and "ideas, websites to use, Story Line online." One participant summarized, when he said, "it was 'getting into the classrooms and seeing how technology was used" that helped him more than anything else.
5. RESULTS
The research question aimed to discover perceptions of the college of education experience of 21 st Century technology integration training by participants. Three themes were identified succinctly representing participant perceptions. These were:
* College professors used only basic technology
* Assignments involving technology use were neither purposeful nor rigorous.
* Participants did not begin to understand how to integrate technology until they began their field experiences and internship.
There were a few notable exceptions to theme one and two findings; however, the majority of participants agreed these themes illustrated their exposure to technology at the collegiate level.
5.1.Basic uses of technology
When participants discussed how professors used technology, most mentioned their professors simply did not use much technology. According to Debbie, "They [professors] just used … the computer … PowerPoint for SMART Board lessons … more or less just PowerPoint."
Similarly Amber noted, "I … don't recall any … instructors using a lot of technology to teach … mostly lecture … some overhead projectors …"
Linda's perceptions regarding professor uses of 21 st Century technologies were in line with other participants. She spoke of pre-service classroom exposure to 21 st Century technologies, "… PowerPoint … projector … lecture … how to make flyers … stuff on Microsoft Word … professor-wise, most used PowerPoint, projectors …"
Billy echoed the same sentiments when he stated, "It was mostly … retraining on Word … as far as incorporating technology into an everyday classroom … talked about and went over PowerPoints …"
Some focus group participants noted pre-service training did not provide them with technology integration skills they needed. Heather indicated professors didn't employ technology in her training when she stated:
… we only had one SMART Board in the whole college … in one classroom and the chalk board was around it … [the professor] … wrote … over the SMART Board and then kept going, never touching the SMART Board … I was like, oh that thing's really cool, what is that?
Larry, a math major, spoke of how he was exposed to more technology integration efforts because his professors used Geometer Sketchpad during methods classes. He stated:
… we had the math-teaching and technology-integrated course … from that, I was able to utilize … different math technology... like, Geometer's Sketchpad … software all about geometry … to put formulas in and … build geometric shapes and test … angles, rotate, flip, and slide and do … different things ...
Focus group participants felt they were not exposed to exemplary modeling of 21 st Century technology integration techniques as a pre-service learner. The most notable exception was Larry, who had a mathematics concentration. Interview participants also reported it was only after visiting classrooms and observing in-service teachers did they develop a sense of how to integrate 21 st Century technologies into instruction.
There were notable exceptions regarding this theme. According to Jamie, "We used a lot of the document cameras … the professors used those. The professors also … used PowerPoint and … WebQuests online."
Johnny, who majored in mathematics, spoke of using computer software, while a pre-service 21 st Century technology learner, when he stated, "…we used Geometer's Sketchpad sparingly and that was about the only technology that was incorporated."
International Journal on Integrating Technology in Education (IJITE) Vol.4, No.1, March 2015
William, who seemed to be the most prepared, and employed technologies after college, noted:
So what he [professor] did was … our computers … linked to his SMART Board, so that we had the technology on the computers and he created a lesson that showed us the tools … and created a mock lesson...
The teachers experienced with some degree of technologies modeling had options of taking other coursework using 21 st Century technologies. Johnny, a mathematics major, noted his methods teacher used Geometer Sketchpad when teaching geometry units and was exposed to this software when creating lessons.
William seemed to be the most prepared to employ technologies upon garnering his teaching assignment. Of all the participants, William was exposed to more modeling of technologies while a pre-service learner and was expected to create more technology infused lesson plans. William spoke about the preparation he received:
I went to … liberal arts college … two semesters of technology classes specifically geared towards educational technology …the first was a SMART Board course and the second one integrated technology into … lesson plans.
5.2.Assignments neither purposeful nor rigorous
When participants spoke of technology related assignments as pre-service learners they indicated assignments were basic in nature and did not serve to build 21 st Century technology integration competence. Participants mentioned working with groups created by convenience (neighbor in next seat), but more often spoke of having to work on projects alone. Assignments consisted mainly of PowerPoint presentations. Rarely were participants, as pre-service teachers, asked to integrate existing knowledge of technology with instruction in significant ways.
Heather spoke of how exposure to technology as a pre-service teacher did not prepare integration into a future teaching assignment. When speaking about a typical assignment she stated:
I had one technology course in college where we had to create a PowerPoint about a vocabulary word of our choice. We had to make it so kids had to interact with it so there would be sounds … and … images … just the one class and then we had to present it to the professors…we never actually got to use it in a classroom...
Sally indicated her assignments utilizing technologies were not related to her future teaching assignment. She did use the math software program to design worksheets for a future class once. Sally had this to say, regarding her 21st Century technology integration assignments:
We had to design a lesson plan based upon … technology … different activities-different programs on the computer or the Internet … to make our lesson plans … used Microsoft to type the lesson plans … used Excel to make a graph, a spreadsheet and then we used it to make a graph and then we had to use Geometer's Sketchpad to make our handout, worksheets.
There were notable exceptions to the findings. Two participants engaged in activities designed so technology began to facilitate the teaching and learning process. Johnny was engaged with specialized software while in his pre-service mathematics courses. He stated, "We had 20 activities to perform on Geometer's Sketchpad … to list the sequence of steps…had to construct some polygons…and we had to…bisect some angles."
Larry also spoke of using Geometer Sketchpad while in his pre-service program:
…one assignment … classifying different angles using … shapes and objects … in Geometer's Sketchpad, you were able to pull those objects up … expand those objects … turn those objects around … you can implant the degrees and the angles in there … you could show how this angle was perpendicular to another angle, how it was parallel to another angle … so that was one assignment that I really enjoyed doing because it made geometry real life.
Participants were taught and directed to employ technologies, but the requirement to do so did not rise to the standard of true integration within their pre-service education. Twenty-first Century technology integration means using technology to facilitate instruction and change the content or context of teaching, learning and assessing. Utilizing technology simply to satisfy a requirement seemed to characterize 21 st Century technology-related, participant pre-service, training assignments.
5.3. Importance of field experiences and internships
Participants did not have the integration of 21 st Century technology modeled for them during their methods and technology courses. They created lesson plans including legacy (Pre-21 st Century) technology and designed PowerPoint presentations. All participants stated, once they began to visit classrooms, their knowledge about how to integrate 21 st Century technology increased from observation and participation in student teaching tasking. This theme is illustrated in Amber's response:
…when I did my student teaching…they had SMART Boards … I hadn't seen until I went into the classroom … I became well rehearsed in SMART Board through field experience and my student teaching.
Cindy acknowledged how field experiences assisted her in developing 21 st Century technology integration confidence and competence when she said:
… the field experiences are really what helped … got to use the document camera … hands on … instead of … telling me what I needed to do about technology, I was able to use it. When I used the document cam I knew exactly how to do it … to make it interactive with the SMART Board …
Jamie reported his internship exposure in the classroom helped him understand how to employ technologies in future teaching assignments. According to Jamie:
International Journal on Integrating Technology in Education (IJITE) Vol.4, No.1, March 2015
… that [field experience and internship] probably helped [me] more than anything else, because I was able to go into the different classrooms, in different grade levels. I was able to see how they incorporated 21 st Century technology … found … wonderful resources … for the SMART Board … that helped more than anything else; actually getting into the classroom and seeing technology used.
The focus group participants indicated they did not really begin to understand how to connect the 21 st Century technology to pedagogy and specific content teaching assignments until they began field placements and internships, as recognized by Beth:
As far as formal training … internship … opened the door for me. My teacher was into the SMART Board; she knew it front and back. They had had really good training on it [SMART Board] at their school…that got me familiar with it [SMART Board] so when I got my own … it was … easy.
Participants had not been exposed to lessons in methods and or technology classes enabling them to see employment of 21 st Century technologies as a tool to teach. This point was echoed by Susan when she responded, '… it was mostly … just lecture; except for the online classes … Blackboard was really the only technology that I had, which was during (pre-service) online classes..."
This finding was evident in the focus group discussion as well. Five of the participants noted it was during their field placement and internship when they began to understand how to integrate the 21 st Century technology into content for lesson plans. This can be summed up in the responses by Larry, "I'd have to say my student teaching experience was the most beneficial to me," and by Linda, "… I learned about technology … through my student teaching."
Larry participated in the focus group session and was the only participant exposed to modeling of software and technology during pre-service training. Larry had achieved a minor in mathematics and spoke of his methods teacher using Geometer Sketchpad often.
Participants were exposed to education-related technology used to display notes or as an assist to presentations. Linda noted, "… it was just PowerPoint and projector, not really anything else…lecture..." when she explained how technology was used in pre-service training. Participant's noted their pre-service assignments requiring the use of technology did not serve the purpose of helping them understand how to employ 21 st Century technologies into future learning plans. This is exemplified by Amber, "…I know we were trained on teacher websites … on how to do a teacher website, but … I can't recall … other ways we were taught to incorporate technology into the classroom."
Participants indicated modeling is a powerful tool when used to integrate technologies. However, most participants were not exposed to this during their college education experience, as noted in the following statements, "they used PowerPoint," "mostly lecture," and "making flyers … on Microsoft Word." A few participants, who were either mathematics majors or minors, were exposed to other software modeling.
Reflecting back, most participants noted assignments lacked a training purpose and rigor, demonstrated by statements such as, "we had to create a PowerPoint," "it didn't really help me,"
and "we never actually got to use it in a classroom." One participant noted an exception in describing the use of geometry software to "make geometry come to life."
Finally, participants spoke of how field placements and internships assisted them, "I came wellrehearsed in SMART Board through field experience," "I was able to use it [technology]," and "that [field experience] probably helped [me] more than anything."
When describing training as pre-service teachers, nearly all participants reported they were not trained to integrate 21 st Century technology into lesson plans. They spoke of how college instructors rarely employed technologies to teach them, except for basic methodology (PowerPoint to display notes, using email and or Blackboard systems to communicate). One participant was trained to use a SMART Board, and provided a series of lessons to use, once teaching. He had options when selecting technology courses during his course of study. Four participants used Geometer Sketchpad during their coursework and were either mathematics majors or minors.
Participants were not required to utilize technologies in authentic ways or methodologies as preservice learners. Pre-service assignments were not easily transferrable to post-hire classroom settings requiring integration 21 st Century technologies. For example, assignments involved the participants creating a PowerPoint for a classroom presentation or mentioning how 21 st Century technology would be used in a lesson plan. Pre-service learners were not learning-focused on employing technology as a tool to facilitate teaching and to transform classroom dynamics.
Exceptions did exist within the responses. Two participants had to create WebPages, one created a WebQuest, and two others created virtual field trips. One participant spoke of a virtual field trip regarding the Underground Railroad that allowed students a choice of 'knocking' on a virtual door to ask for 'safe harbor.' She reported student engagement increased using this 21 st Century technology.
Finally participants as pre-service learners began to understand how to employ 21 st Century technologies when they began field placements and internships. The dominant theme was participants were exposed to technology modeling by practicing teachers. This modeling of the 21 st Century technology situated the use of 21 st Century technology within the participant's instructional context.
6.SYNTHESIS OF THE COMPOSITE TEXTURAL AND COMPOSITE STRUCTURAL DESCRIPTIONS
When describing technology training received as pre-service teachers, nearly all participants reported no training on how to integrate 21 st Century technology into instruction. They repeatedly spoke of how college instructors rarely employed technologies to teach. When professors used the technology, it was for basic uses such as notes (PowerPoint visual), email (digital communication), or Blackboard (classroom management system, for class content management and grading assignments for the students. The participant trained to use the SMART Board was provided lessons once he began teaching, so had options when selecting technology courses during his studies. Four other participants used Geometer Sketchpad during their coursework, but were mathematics majors or minors.
Finally participants as pre-service learners began to understand how to employ 21st Century technologies when they began their field placements and internships. The overwhelming refrain was the participants were exposed to modeling by practicing teachers. This modeling of the 21st Century technology situated the use of 21st Century technology squarely within the participant's instructional context.
7.IDENTIFICATION OF BEST PRACTICES
The following best practices attempt to incorporate the core principles of Andragogy as articulated by Knowles (1980) which argue adults: (a) should understand why they need to learn something before being trained, (b) are self-directed learners whose prior-experiences should be taken into account, and (c) are ready to learn when they need to perform a life centered task which builds competence. Participants reported best practices are mindful of the relationship between a teacher's technological pedagogic knowledge (TPK), technological content knowledge (TCK) and technological, pedagogical, content knowledge (TPaCK) (Kereluik et al., 2010). Twenty-first century technology training should begin with exposure to the technology, its characteristics, terminology, and basic uses (TK). Finally, training should then move to helping the learner understand how 21 st Century technologies, as a tool to facilitate teaching and learning, can assist in extending and enriching learning activities in the classroom (TPaCK) (Kereluik et al., 2010).
According to participants, the best practices America's colleges of education could adopt to meet the 21 st Century technological needs of pre-service teachers as adults, as well as meet TPACK guidelines are:
* Modeling of 21st Century technologies should be pervasive throughout the teacher education program in content and methods courses.
* Partnerships between K-12 schools and teacher education programs should be leveraged to expose pre-service teachers to content specific applications of 21 st Century technologies during field placements and internships.
* Pre-service teachers should be provided multiple opportunities to employ technologies as an instructional tool through simulated teaching experiences before service or internship.
When pre-service teachers are afforded opportunities for hands-on applications of technologies in real world contexts, it is demonstrated they develop confidence and competence in utilizing those teaching technologies (Sutton, 2011). When colleges of education follow through on NETS for Teachers and the Essential Conditions from ISTE, important connections are established within K-12 education communities that support teacher candidate exposure to effective technology through field experiences where technology is being integrated (ISTE, 2000b). Jamie spoke of how powerful the modeling and simulated teaching exercises had been for her during her field placements:
Student teaching helped me see the long-term effect of technology … I could incorporate on a daily basis … or the student period-student teaching time … to see how I could integrate it across the curriculum … that's really how students teaching helped.
8.IMPLICATIONS
A re-development or added curriculum for teaching methodology is highly recommended as the conclusion of this study. Teaching institutions are encouraged to be more receptive to providing curriculum on how to use technologies to enrich content pre-service teaching students are expected teach (Sutton, 2011; Teclehaimanot, Mentzer, & Hickman, 2011). According to the research study participants, professors used technology for basic functions such as displaying notes and sending emails, but not for teaching in the classroom environment themselves. Technology staff development at the collegiate level should prepare college faculty to model effective uses of current technologies for pre-service teachers to develop competencies for teaching (Angeli & Valanides, 2008). This can be accomplished by professorial modeling – not only in the methods or technology courses – but, throughout the college experience (Sutton, 2011).
Improving competence and confidence at integrating current technology in pre-service teachers curriculum is dependent on college faculty requiring their students to use technology in simulated teaching experiences (Kumar & Vigil, 2011). This goes far beyond the requirement to use older technologies for demonstration(s). When college professors are adept at employing the 21 st Century technology in pedagogic and content specific ways, they can better assist students in developing their own abilities (Koh & Frick, 2009).
America's higher education institutions should establish networks with schools and integrate current and future teaching technologies. These connections could then provide a vehicle through which pre-service teachers can experience authentic methods of integrating teaching technology into content they are expected to teach (ISTE, 2000b; Meagher, Ozgun-Koca, & Edwards, 2011; Sutton, 2011; Teclehaimanot et al., 2011). Technology-rich field placements and internships, according to participants in this study, serve to build confidence and competence in integrating 21st Century technologies.
9. RECOMMENDATIONS FOR FUTURE RESEARCH
Twenty-first Century technology integration training builds participant technological content knowledge (TCK), develops participant's pedagogic and content connections (PCK), and helps participants assimilate the technology into what future teachers already know about teaching and learning (TPK) for true 21 st Century technology integration to occur (TPACK). Further research is needed to discover and expand the knowledge of complex interplay between technological pedagogic knowledge (TPK), technological content knowledge (TCK), and pedagogical content knowledge (PCK) to identify best practices for developing pre-service teacher technology integration competence and confidence.
There has been little research concerning best practices in training adults on how to integrate current and future technologies into teaching. This study has shown continued research in this area can yield insights into how adults learn to employ 21 st Century technologies. State and or national level studies should be conducted so 21 st century technology integration pre-service teacher training can be understood from an adult perspective within wider contexts. Close examination of these experiences may promote change within teacher education programs from the current methodology centered approach to teaching twenty-first century technology integration to one more attuned to the needs of the adult learner.
Another recommendation would be to look further into the differences between preparation programs. Do mathematics and science methods and content professors use more technologies when teaching compared to other disciplines? Is it easier for elementary education majors to integrate technologies? To what extent are professor uses of technologies aligned with NETS for teachers? Participants noted the lack of modeling by their college of education professors, so more research seems warranted to confirm their observations. Participants noted field placements and internships helped them understand how to integrate 21 st Century technology, so additional research is suggested to understand how and why this was observed.
10.CONCLUSION
Participants noted they needed the college of education experience to provide them with authentic, relevant, and purposeful exposure to 21 st Century technologies. This can be accomplished by ensuring college faculties model teaching-centric technology within the curriculum of teaching programs. Teachers as pre-service learners should be afforded sufficient opportunities to practice using 21 st Century technologies through simulated teaching exercises requiring integration of technology. In conclusion, field placements and internships need to emphasize teachers employing 21 st Century technologies as tools to facilitate teaching and learning.
REFERENCES
1. Gray, L., Thomas, N., & Lewis, L. (2010). Teachers' use of educational technology in U.S. public schools: 2009 (NCES 2010-040). Washington, DC: National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education.
2. Zhao, Y. (2007). Social studies teachers' perspectives of technology integration. Journal of Technology and Teacher Education, 15(3), 311-333.
3. Ottenbreit-Leftwich, A. T., Glazewski, K. D., Newby, T. J., & Ertmer, P. A. (2010). Teacher value beliefs associated with using technology: Addressing professional and student needs. Computers and Education, 55(3), 1321-1335.
4. United States Department of Education, (2010). U. S. Department of Education releases finalized national education technology plan. Retrieved from http://www.ed.gov/news/press-releases/usdepartment-education-releases-finalized-national-education-technology-plan
5. Teclehaimanot, B., Mentzer, G., & Hickman, T. (2011). A mixed methods comparison of teacher education faculty perceptions of the integration of technology into their courses and student feedback on technology proficiency. Journal of Technology and Teacher Education, 19(1), 5-21.
6. Pitler, H. (2011). So many devices, so little use. T. H. E. Journal, 38(6), 42-44.
7. Moerer-Urdahl, T., & Creswell, J. W. (2008). Using transcendental phenomenology to explore the "ripple effect" in a leadership mentoring program. International Journal of Qualitative Methods, 3(2), 19-35.
8. Moustakas, C. (1994). Phenomenological research methods. Thousand Oaks, CA: Sage Publications, Inc.
9. Knowles, M. S. (1980). The modern practice of adult education: From pedagogy to andragogy. Englewood Cliff, NJ: Cambridge Adult Education.
10. Knowles, M. S., Holton, E. F., & Swanson, R. A. (1973). The adult learner. Burlington, MA: Elsevier Inc.
11. Knowles, M. S. (1984b). Andragogy in action. San Francisco, CA: Jossey-Bass.
12.Shulman, L. S. (1986). Those who understand: Knowledge growth in teaching. Educational Researcher, 15(2), 4–14. Retrieved from http://www.jstor.org/stable/3202180
International Journal on Integrating Technology in Education (IJITE) Vol.4, No.1, March 2015
13. Kereluik, K., Mishra, P., & Koehler, M. J. (2010, Winter). On learning to subvert signs: Literacy, technology and the TPACK framework. The California Reader, 44(2), 12-18.
14. Education First NC School Report Cards, (2011). Retrieved from http://www.ncreportcards.org/src/search.jsp?pYear=20102011&pList=1&pListVal=780%3APublic+Schools+of+Robeson+Coun&GO2=GO
15. Creswell, J. W. (2007). Qualitative inquiry & research design: Choosing among five approaches (2nd ed.). Thousand Oaks, CA: Sage Publications, Inc.
16. Guba, E. G. (1981). Criteria for assessing the trustworthiness of naturalistic inquiries. Educational Technology Research & Development, 29(2), 75-91.
17. Sutton, S. R. (2011). The pre-service technology training experiences of novice teachers. Journal of Digital Learning in Teacher Education, 28(1), 39-47.
18. International Society for Technology in Education (ISTE). (2000b). NETS for teachers 2000 essential conditions. Retrieved from www.iste.org/standards/nets-for-teachers.aspx
19. Angeli, C., & Valanides, N. (2008, March). TPCK in pre-service teacher education: Preparing primary education students to teach with technology. Paper presented at the AERA annual conference, New York.
20.Kumar, S., & Vigil, K. (2011). The net generation as pre-service teachers: Transferring familiarity with new technologies to educational environments. Journal of Digital Learning in Teacher Education, 27(4), 144-153.
21. Koh, J. L., & Frick, T. W. (2009). Instructor and student classroom interactions during technology skills instruction for facilitating pre-service teachers' computer self-efficacy. Journal of Educational Computing Research, 40(2), 211-228. doi:10.2190/EC.40.2.d
22. Meagher, M., Özgün-Koca, S. A., & Edwards, M. T. (2011). Pre-service teachers' experiences with advanced digital technologies: The interplay between technology in a pre-service classroom and in field placements. Contemporary Issues in Technology and Teacher Education, 11(3), 243-270.
Authors
Christopher Clark, Ed.D., Public Schools of Robeson County, 101 Bryant Road Red Springs, NC 28377, (910) 785-0250, email@example.com; he is an Adjunct Instructor with Liberty University (School of Education) and a high school principal with the Public Schools of Robeson County; He has served as an Assistant Principal, LEA Test Coordinator, and mathe matics teacher for 21 years in public education (corresponding author).
Dawn D. Boyer, Ph.D., D. Boyer Consulting, 5428 Whitehurst Arch, Virginia Beach, VA 23464; (757) 404-8300, firstname.lastname@example.org; she has served as a Information Technology instructor at Old Dominion University, private tutor, and public school teacher for Virginia Beac h City Schools, and currently provides instruction to corporate and private clients as a consultant and publisher (contributing author).
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AKFEN HOLDİNG A.Ş. 1 January 2010 – 30 September 2010 Interim Period Activity Report
HIGHLIGHTS OF THE FIRST NINE MONTHS
1. AKFEN HOLDING
a. Financial Performance
Net Income includes profit attributable to non-controlling interest.
Consolidated revenues of Akfen Holding decreased by 2.8% in first nine months of 2010 in comparison to the same period of previous year.
Costs and revenues of TAV Airport in connection with construction in BOT projects suc as Enfidha Airport project in Tunisia are reflected in the financial statements pursuant to IFRIC 12 standard. In this context, the construction revenues incorporated in turnover for the first nine months of 2009 are not included in the first nine months of 2010, since construction for extension in İstanbul Atatürk Airport and Gazipaşa airport construction have been completed, in addition to very limited amount generated from Enfidha airport project, due to the completion of this project, . Even though aeronautical and non-aeronautical revenues of TAV Airport have displayed an increase in the current period in comparison to the same period of the previous year, lack of construction revenue (TL 8 mn in 9M10 versus TL 118 mn in the same period of 2009) due to the above reason in the first nine months of 2010 has caused a decline in total revenues.
According to the first nine months results of 2010, Akfen Holding's gross profit margin is 25%, net profit margin excluding minority interest is 2% compared to 21.8% and -0.5%, respectively, in the same period of 2009. The primary factor for the increase in consolidated gross profit margin is that the share of MIP revenues in total consolidated turnover increased from 11.4% to 14.9%. In addition to that, profit increase resulting from the operations of Akfen REIT as well as TAV Airports are other reasons behind the improvement in the gross profit margin.
In the first three quarters of 2010, Akfen REIT, MIP and TAV Airports EBITDA's increased by 31%, 33% and 40%, respectively, compared to same period in 2009. Thanks to the start of operations in Dilovası OIZ, TASK Water's EBITDA turned from TL -73.000 to TL +694,000. The investments in HEPP I-II are still at the construction phase, as a result of this, there is no EBITDA contribution to Akfen. The reasons for drop in consolidated EBITDA are decline in EBITDA generated by TAV Yatırım Holding and negative EBITDA of Akfen İnşaat. Please also note that, even though consolidated EBITDA improved slightly in USD terms, TL consolidated EBITDA recorded a minor drop in the first nine months of 2010 as compared to the same period of the previous year.
The main business segments of the Holding are TAV Yatırım, Akfen İnşaat, Akfen GYO, HEPP I-IIIII, MIP, Task Su and TAV Airports. Mersin International Port, TAV Airports and Akfen REIT are the main companies contributing to earnings. Earnings before tax from the continuing operations were realized as TL -5,586 thousand, and TL 31,274 thousand, in the first nine months of 2009 and 2010, respectively.
Discontinued operations in 2010 comprise companies such as Akfen Altyapı Danışmanlık, Akınısı, Akfen Turizm, Artı Döviz and IBS which were carved out before Holding IPO in May 2010. While profit from discontinued operations amounting to TL 13,888 thousand during the first nine months of 2009 increased to TL 17,226 thousand in the same period of 2010, it should be noted that, the discontinued operations in 2009 include the profits regarding the sale of TUVTURK Kuzey, Güney, İstanbul, Adana İçel and Hatay vehicle inspection companies.
As a result of positive developments in the continuing operations in the first nine months of 2010, the period loss amounting to TL 5,340 thousand in the first nine months of 2009 has changed into profit in the first nine months of 2010 and reached TL 35,747 thousand.
Total asset size of Akfen Holding increased by 4.3% during the first nine months of 2010 and has reached an asset size of TL 3.47 billion as of 30 September 2010 compared to 31 December 2009. The main reasons are an increase in fixed tangible assets of TL 215 mn, namely investments in progress in energy and that of TL 70 mn in cash and cash equivalents.
The increase in financial debts for the financing of energy investments and financial debts at the Holding level are the main sources of increase in total liabilities. Liabilities to sub-contractors decreased to TL 68 mn level due progress in investments during the same period.
The reasons of the decrease in the equity compared to 31 December 2009 are negative revaluation funds and decrease in translation reserves, goodwill incurred on the transaction day of the share purchase in REIT (acquisition of REIT shares as a result of Goldman Sachs put option) and Akfen Enerji Yatırımları Holding A.Ş. and the decrease in minority share resulting from share purchases of our subsidiaries.
Consolidated Debt :
The consolidated net debt of Akfen Holding is USD525.710 thousand, EUR 609.441thousand and TL 42.997 thousand as of 9M 2010. There is TL 38.331 equivalent of Qatar Riyal in the cash values.
Holding Level Solo Net Debt :
Akfen Holding issued 100.000 thousand TL bond with 2 year maturity on 5 March 2010 and utilized €78,7 mn loan for the financing of share purchase of 32,466% of the shares held by Goldman Sachs and for the use of general company purposes. The funds incurred by the new financing are used for all fees and expenses (including advertisement expenses) related to the bond issuance and public offering, for energy projects and for the other expenses of Holding. Due to these debt utilizations gross debt increased to USD 474 mn and the net debt realized as USD 392 mn as of 30 September 2010.
Segmental Breakdown as of 9M09 and 9M10:
TL 7.260 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2009
TL 8.779 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2010
Construction Revenues (IFRIC 12) are included in TAV Airports Revenues
Construction Revenues (IFRIC 12) are excluded while calculating Adjusted EBITDA and Margin
TL 7.260 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2009 TL 8.779 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2010 Construction Revenues (IFRIC 12) are included in TAV Airports Revenues
Construction Revenues (IFRIC 12) are excluded while calculating Adjusted EBITDA and Margin
TL 7.260 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2009
TL 8.779 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2010
Construction Revenues (IFRIC 12) are included in TAV Airports Revenues
Construction Revenues (IFRIC 12) are excluded while calculating Adjusted EBITDA and Margin
TL 7.260 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2009
TL 8.779 K project finance expense of TAV Inv. is included in financing expenses as of 30.09.2010
Construction Revenues (IFRIC 12) are included in TAV Airports Revenues
Construction Revenues (IFRIC 12) are excluded while calculating Adjusted EBITDA and Margin
Mersin International Port, TAV Airports and Akfen REIT are the main contributors to the profit.
The adjusted EBITDA resulting from the proportional consolidation of the guaranteed passenger revenues of the airports operated by TAV Airports Holding in Ankara and İzmir, decreased to TL 149.572 thousand in 9M10 from TL 152.240 thousand in 9M09.
The main reason that deteriorated TAV Yatırım's EBITDA figures are cost over-runs in its Dubai high rise projects, where the contracts are lump sum turnkey characteristics and TAV Yatırım did not subcontract the construction. In relation to these cost over-runs, TAV Yatırım made claims from the clients; The total claim figure increased to AED 113 mn (approximately USD 30 mn) from AED 96 mn (approximately USD 26 mn) compared to the previous period. The amount of the claims included in the revenue reached to AED 51 mn (approximately USD 14 mn) as compared to AED 42 mn (approximately USD 11 mn) of the previous period
Another important reason for the negative performance in TAV Yatırım's EBITDA is the fact of noprofit calculation in Qatar airport new expansion project so called 'Big Change'. In line with the progress level, the company and its partner did not book any profit for the completed construction of USD 79 mn during the first 9 months of 2010 which has no contribution to EBITDA and once booked, profitability of the company will be higher.
The third reason for the poor performance of TAV Yatırım EBITDA figure is the delay in the project implementation in Oman and Libya projects resulting from the design and project amendments. Due to these changes, these projects have gone beyond planned time and expected progress payments have not been made yet by the employers. As a natural result thereof, EBITDA contribution from these projects was poor.
The main reason for the poor performance of Akfen Inşaat EBITDA is the start of HEPP 2 constructions. The company incurred site erection costs during this period and therefore overhead costs have increased.
Another reason contributing to decrease in consolidated EBITDA is the offering related one-off type costs incurred by Akfen Holding. Akfen Holding has realized one equity public offering and one fixed income bond offering in the first half of 2010 and has incurred costs such as intermediary commission, consultancy fee, travelling expenses and advertisement cost.
Cash Flow
b. Recent Developments
Our application to the Capital Markets Board on 22.10.2010 for "the registration with Capital Markets Board for private placement of TL 33.116.110 group B shares through restriction of subscription of new shares by existing shareholders, and by means of increasing the issued capital from TL 112.383.890 to TL 145.500.000" was approved by Capital Markets Board on 11.11.2010. Standard Unlu will act as the intermediary in the transaction.
2. DEVELOPMENTS IN SUBSIDIARIES AND AFFILIATES
A. Mersin Uluslararası Liman İşletmeciliği A.Ş.
a. Operational Performance:
Container Volumes (TEU)
25% increase has been achieved in Mersin Uluslararası Liman İşletmeciliği (MIP) reaching 777.3 thousand TEU in container handling in the first nine months of 2010 compared with the same period of 2009.
Conventional Cargo Throughput (Tonnes)*
* General Cargo,Dry Bulk, Liquid Bulk,Ro-Ro and Passenger
While Mersin Uluslararası Liman İşletmeciliği (MIP) A.Ş. handled 5,146,992 tons conventional cargo in 9M2010, this amount was 4,062,111 tons in the same period of last year, resulting in a 27% y/y increase.
Note: Please note that except TCDD Ports (İzmir and Haydarpasa), the rest of January-September volume figures are based on TURKLİM (Port Operator Associations of Turkey) reports. TCDD ports' volumes are based on management estimates as TCDD has not yet declared September 2010 volume figures for its own ports.
Mersin Port is the second largest port in terms of overall container handling, after Marport. However, it is the leading port in Import-Export container handling between January and September 2010. While 85.5% of MIP's volumes was based on imports and exports; import-export share in Marport was only 37.5% for the first nine months of 2010. The rest of Marport container volume was based on transshipment/transit cargo, which is currently around 14% in Mersin's volume.
b. Financial Performance:
MIP's turnover reached USD 144,3 million in 9M2010, pointing to a 31% increase compared to the first nine months of 2009. 25% increase in the operation volume and 15% increase in the port service tariffs in June brought forth the aforesaid increase.
Gross profit reached USD 87,6 million with an increase of 37% percent (costs increased only 23% compared with 31% increase in the revenues).
MIP's EBITDA reached USD 81,3 million in 9M2010, showing a 38,3% increase compared to an EBITDA of USD 58,86 million in the first nine months of 2009. EBITDA margin reached 56,4% as of the end of September 2010, compared to 53,5% in the same period of 2009.
Turnover Breakdown :
Container related services make up 74% of MIP's revenues while conventional bulk generates around 15%.
c. Recent Developments
Investments required to meet the capacity requirements to be achieved in the Port within initial 5 years under the Concession Agreement (The operator is obliged to make required investments to increase the capacity, a minimum capacity to handle 1.2 million TEU containers and 7.5 tons of dry bulk, in the port in the first five years according to the concession agreement. However depending on the preference of the operator, the obligation would be achieved by only increasing container handling capacity. In this case, assumption of 1 TEU=15 tons of dry bulk will be accepted and the operator would fulfill the requirement when 1,7 million TEU level is reached.) have been started to be realized. In this context, 8 new RTGs (field equipment) were put into operation in March, 2 mobile quay cranes are purchased and were delivered to the port in order to start operation in September whereas tender for an additional two quay cranes is pursued.
B. TAV HAVALIMANLARI HOLDING
a. Operational Performance
Traffic Results :
Source: Turkish State Airports Authority (DHMI), Georgian Authority for Tbilisi & Batumi, TAV Tunisia for Monastir & Enfidha, TAV Macedonia for Skopje & Ohrid Airports
Note: DHMI figures for January - June 2010 are tentative, DHMI passenger figures are including transfer passengers
(1) Both departing and arriving passengers, excluding transit
(2) Operation commencement date: October 16, 2006
(3) International Terminal only and operation commencement date: September 13, 2006
(4) operation commencement date: January 1, 2008, Transit passengers are not included in pax numbers, (Including Enfidha Airport)
(5) Operation commencement date for new terminal: February 7, 2007
(6) Operation commencement date: May 26, 2007 (Including passenger using Hopa Terminal)
(7) Commercial flights only
(8)
Operation commencement date: March 01, 2010
(9) TAV 2009 traffic figures do not include Macedonia
The number of passengers utilizing airports operated by TAV Airports Holding has increased by 13% in the first nine months of 2010 and has been 36 million. According to DHMİ statistics which includes transfer passengers, the number of international passengers of İstanbul Airport International terminal has been 15,1 million corresponding to an increase of 11% in the first nine months of 2010.
Aviation revenues (including ground handling services and Ankara and İzmir guaranteed passenger revenues) as part of total reached 47% during the first nine months of 2010. Aviation revenues constituted 44% of total revenues in 9M09. . The ratio of aviation revenues has increased with the duty free revenues growing less than other revenue items. Duty free sales constitute the second biggest item among revenues with a portion of 30%. While food and beverages accounts for around 6% of total revenues, other revenues such as insurance income stemming from the trigeneration power plant in Istanbul, bus service, car park area allocation, lounge revenues, constitute around 18% of total revenues. TGS's start of operation in İstanbul, Izmir, Ankara, Antalya and Adana airports since the beginning of the year and also in Sabiha Gökçen airport since July has contributed to earnings. The 32% increase in the number of planes Havas started serving (including TGS, reaching 184 thousand) has increased the aviation income as well.
With the increase in passenger numbers, with a share of 30% in total revenue, duty free revenues performed as the second highest contributor following aviation revenues (including ground services) in total income. Duty free sales increased 13% from EUR106 million in 9M09 to EUR120 million in 9M2010. As the limits applied to duty free sales since October 2009 by the Undersecretariat of Customs have been cancelled in early September 2010, the positive impact of the cancellation was limited, only affecting September results.
b. Financial Performance
*Construction revenues are excluded while computing the operational income.
TAV Airports Holding announced EUR 39.4 million profit in 9M10 versus EUR 35.3 million profit in 9M09, implying 12% growth YoY.
Construction revenues and construction expenditures are excluded and guaranteed passenger fee revenues from airports in Ankara and Izmir are included while computing adjusted EBITDA.
Holding debt level decreased from EUR 200 million in 2008 to EUR 47 million as of September 30 th , 2010 with the cash obtained from the sale of minority shares of 18% in TAV Tunisia. Consolidated period debt of EUR 941 million decreased to EUR 890 million as of September 30 th , 2010.
With the completion of the airport construction and the start of operation in Tunisia, a free cash flow (net cash from the operations-cash spent for investment) amount of minus EUR 144 million in 9M09 has increased to EUR 74 million in 9M10. While the investment expenditures were EUR 256 million in 9M09, it decreased to EUR 77 million in 9M10.
c. Recent Developments
18.10.2010, Stake in TAV IT increased to 99% from 97%.
TAV IT Services Co., a subsidiary of TAV Airports Holding has increased its paid-in capital from TL 2,500,000 (two million five hundred thousand) to TL 5,500,000 (five million five hundred thousand). Accordingly, the share of TAV Airports Holding in the capital of TAV IT Services has been marked up from TL 2,425,000 (two million four hundred twenty-five thousand) to TL 5,425,000 (five million four hundred twenty-five thousand).As a result, the share of TAV Airports Holding in TAV IT has been increased to 99% from 97%.
06.10.2010, Establishment of SIA TAV Latvia
TAV Airports Holding announced on September 27, 2010 that it will undertake the operations of the commercial areas within SJSC Riga International Airport in Latvia.The Board of Directors of the company agreed to establish and register a company under the name of "SIATAV Latvia"in Latvia for managing the operations of the commercial areas (Duty-Free, Food and Beverage, Lounges, Exchange Offices,etc.) within SJSC Riga International Airport in Latvia.The capital stock of SIATAV Latviais2,000LVL (two thousand Lats) splitted in 2,000(two thousand) shares;each share having a nominal value of 1LVL(one lat
06.09.2010, Amendment in Customs Law(#4458)
With the amendment in CustomsLaw (#4458), Article#134, effective as of September 6, 2010, restrictions applied to products which can be brought from abroad has been relieved. Accordingly, maximum purchase limits applied to arriving international passengers have also changed with the amendment, as ATU's sales at international arrival terminals is subject to Customs Law.
01.07.2010, Take over of service points from USAS
TAV Airports Holding's 66.66% subsidiary, BTA Airports Food and Beverage Co.(BTA) has taken over the operations of 5 F&B service points (Kantin, Beerport, Kokpit Cafe, Kokpit Brasserie, Botanik Cafe) at the Istanbul Ataturk Airport Domestic Terminal from USAŞ Uçak Servisi A.Ş.as of July 1st, 2010. With the take-over, BTA's service points increased to 138.
C. TAV YATIRIM HOLDING A.S.
a. Operational Performance
Atatürk Airport development, extension works have been completed. After adding this project to the completed works, the amount of airport and other construction projects completed by TAV İnşaat has reached 2,45 billion US Dollars.
ONGOING PROJECTS (USD mn)
FOLLOW-UP PROJECTS (USD mn)
Medinah International Airport Project
The bidding date for the project, which is carried out as a BOT (Build- Operate-Transfer) scheme is revised as 28 February 2011 as of the first week of November.
TAV Construction will submit its bid with the below partnership structure:
- TAV Airports Holding (25%)
- Saudi Oger (25%)
- CCC(25%)
- AL Rajhi (25%)
Abu Dhabi Int. Airport Midfield Terminal Building Construction Works
Pre-qualification is obtained. The issuance of the tender documentation is awaited. TAV Construction will submit its bid with the below partnership structure:
- TAV Construction (33%) - Leader
- CCC (33%)
- Arabtec (33%)
Kuwait International Airport - Package 1
TAV Construction's bid was submitted on 04 August 2009 with the below partnership structure:
- TAV Construction (50%) - Leader
- Al Kharafi & Sons (50%)
TAV Construction submitted second best bid. The best bid was invalidated due to its non-compliance with the scope and design given by the administration. Currently, invitation of the administration for negotiation and contract discussions is awaited.
Pulkovo International Airport - St.Petersburg, RUSSIA
PPP contract was signed on 30 October 2009 between St. Petersburg City and Northern Capital Gateway LLC (Fraport 35.5% - VTB Bank 57.5% - Copelouzos Group 7%) and the operation rights has been transferred to NCG group as of the end of April 2009. The tender is realized in two phases and the date of the second phase bid is 25 November 2010.
Riga International Airport
The results of the contest that was held for the design of the terminal is in evaluation stage. In the tender stage, TAV Construction will submit a bid.
Haydar Aliyev International Airport
TAV Construction will submit its final offer for Haydar Aliyev International Airport on 23 November 2010. This tender is carried our as invitation tender. The conceptual design of the project is done by Arup. The administration has invited all the bidders to a meeting last week to ensure that each bidder's proposal will be in same conditions and details. CCC is %50 partner in this Project.
Muscat MC3
As of 30 September TAV Yatırım's position for the project compared to the previous period has not changed. But the administration requested prices from all firms on 11 October. In the last week of October, Oman television has announced that the project was awarded to Bechtel Consortium. The official notification was not delivered as of the report date.
b. Financial Performance
On the back of the losses realized in Dubai, EBITDA margin remained around 5% which is lower compared to Q309.
D. AKFEN HEPP PROJECTS ( HES I-II-III)
Akfen Holding has been continuing its hydro-electric power plant investments with its companies of AkfenHEPP Yatırımları ve Enerji Üretim A.Ş. (HEPP1), Akfen Hidroelektrik Santrali Yatırımları A.Ş. (HEPP 2) and Akfen Enerji Kaynakları Yatırım ve Ticaret A.Ş. (HEPP 3) The progress status of the projects as of September 2010 are as follows:
a. Construction Status
b. Recent Developments
Tranche 3 under the loan agreements of project companies under HEPP 1 has been utilized and the amount of loan utilized for the projects until today has reached EUR 149,3 mn.
Loan agreements of EUR 137.8 mn have been signed between project companies under Akfen Hidroelektrik Santrali Yatırımları A.Ş. (HEPP 2 portfolio) and a consortium formed by Denizbank A.Ş., Türkiye Sınai Kalkınma Bankası A.Ş., Yapı ve Kredi Bankası A.Ş., T. İş Bankası A.Ş. as of 05.05.2010.
In regard to financing of projects under HEPP 2, loan agreement for EUR 137,8 mn was executed in May and first tranche amounting to EUR 20,25 mn was utilized on September 1 st ,2010.
Except Yuvarlakçay and Çatak projects, carbon financing agreement was signed with Future Camp for all HEPP 1 and HEPP 2 projects. Agreements were signed with Bureau Veritas which will carry the accreditation for all projects excluding Yuvarlakçay, Çatak and Tepe.
Stay of execution decision for Yuvarlakçay HEPP was taken. Legal process is ongoing. Application for termination of Yuvarlakçay HEPP license and return of letter of guarantee was submitted to EPDK and the process is ongoing.
The region where Çatak HEPP is located has been declared as Degree 1 site zone by Trabzon Culture and Natural Assets Protection Board. A lawsuit has been initiated for termination of the decision and legal proceeding is ongoing.
A "share sale and purchase" agreement, with an amount of EUR 10 mn is signed between Kardemir A.Ş. and Akfen Hidroelektrik Santral Yatırımları A.Ş., a subsidiary of Akfen Holding A.Ş., concerning the sale of 100% shares of Enbatı Elektrik Üretim Sanayi ve Ticaret A.Ş., which will be operating a hydro power plant with a capacity of 22.5 MW. Share transfer will be completed following obtaining the permissions of related authorities, EMRA being the prior one. Please note that, the Buyer will complete the remaining portion of the investment.
Laleli Dam- HEPP (104,76 MWm/101,64 MWe), a project of Laleli Enerji Elektrik Üretim A.Ş. which is a subsidiary of Laleli Enerji Elektrik Üretim A.Ş. ( a subsidiary of AKFEN Enerji Kaynakları Üretim Ve Ticaret A.Ş.), qualified for a positive Environment Impact Assessment decision (EIA) report on 09.11.2010 submitted by the Ministry of Environment and Forestry.
E. TASK Su Kanalizasyon Yatırım ve İşletim A.Ş.
a. Operational Performance
The test process started upon completion on 31 March 2010 of TASK Dilovası investment was completed on 1 July 2010 and accepted by Dilovası Organized Industrial Zone management. As a result, TASK Dilovası became operational as of 1 July 2010.
Task Güllük Operational Data
* Residential Subscribers Drinking Water Base Tariff
Task Dilovası Operational Data
Note: For the first operational Year Annual Guaranteed Flow is 2,400,000 m3
Task Dilovası has started its operation in July 2010. During the first 3 months of its operation the completion of factory connections to the Task Dilovası wastewater network occurred gradually and it is still ongoing. The Administration of the Organized Industrial Zone is the responsible party to complete the factory connections and the Administration targets to complete all connections by December 2010.
Task Dilovası surpassed the minimum guarantee level provided by the OIZ management in terms of waste water volume as of its third month of operation where the guarantee flow is stated in the agreement as 200.000 m3 per month which translates into 2.400.000 m3 for the first year of the operation (July 2010-June 2011).
b. Financial Performance
*Since this project was BOT, in line with IFRYC 12 standards of IFRS, the company had to book construction revenue and expenses realized for the BOT investment. Total construction turnover was EUR 6,2 mn, EUR 2,8 mn and EUR 5,9 mn for 2009, Q309 and Q310 respectively whereas the total construction expenses were EUR 5,6 mn, EUR 2,5 mn, EUR 5,3 mn for the same periods respectively.
*Total construction turnover was TL 13,3 mn, TL 5,9 mn and TL 11,7 mn for 2009, 9M09 and 9M10 respectively whereas the total construction expenses were TL 12,1 mn, TL 5,4 mn, TL 10,6 mn for the same periods respectively.
Task Güllük achieved TL 1.963.321 turnover during the the first three quarters of 2010. Task Dilovası achieved TL 1.267.903 turnover during the third quarter of 2010.
Task Güllük's net debt of 0 TL as of the third quarter of 2009 increased to TL 131.935 as of the third quarter of 2010. Task Dilovası's net debt of TL 7.433.093 as of 9M 2009 increased to TL 18.555.091 as of the third quarter of 2010.
Task Güllük's net profit of TL 639.249 as of the third quarter of 2009 declined to TL 123.627 as of the third quarter of 2010. The reason for the decrease is the depreciation and the amortization of the tangible and intangible assets. Task Dilovası's net profit of TL 159.288 as of the third quarter of 2009 increased to TL 1.392.230 as of the third quarter of 2010.
Task Water companies' consolidated net debt of TL 7.388.000 as of the third quarter of 2009 increased to TL 18.684.000 as of 9M 2010. The reason for the increase is utilization of the loan for the investments of Dilovası. While Task Water companies' having a net loss of TL 729.103 as 9M09, in the first 9 months of 2010 recorded a profit of 1.273.715 TL.
c. Recent Developments
Task Dilovası and Task Güllük are at an advanced stage of closing long term senior loan agreements with European Bank of Reconstruction and Development. EBRD will be extending two loans to TASK Group companies for a total of EUR16 million that will be used for the refinancing of Task companies and for the financing of Task companies' planned investments. Since the beginning of EBRD's operations in Turkey, this transaction represents the first EBRD loan in Turkish municipal sector, providing long-term funding for investments in water and wastewater sector in Turkey.
In October, Task Dilovası Waste Water facility has treated 258.243 m3 of Waste Water which is around 27% higher than that of in September.
F. Akfen REIT
a. Operational Performance
177 rooms for Ibis and 92 rooms for Novotel became operational in Gaziantep on 8 January 2010.
162 rooms in Ibis and 96 rooms in Novotel started operations in Kayseri on 15 March 2010.
(*) 4 Hotels in Kayseri and Gaziantep became operational by 2010
As can be seen from the table above;
* The room capacity for 8 hotels in Turkey (except Northern Cyprus Mercure and Bursa Ibis hotel) reached 1269 rooms and increased 71% from 2009 to September 2010.
* In all hotels which were in operational in 2009, occupancy rates increased. For the other four hotels (Gaziantep and Kayseri), as expected the start up occupancies started with relatively lower rates which increased by each month.
* Average Room Rate decreased by 3% in Zeytinburnu Novotel and Ibis hotel and 2% in Trabzon Novotel. On the other hand, average room rate increased by 12% in Eskişehir Ibis.
* T-RevPar increased in all the hotels which were operational in 2009.
b. Financial Performance
The lease revenue of Akfen REIT which was realized as EUR 6;2 mn in 9M2009 performed an increase of 9,4% and reached to EUR 6;8 mn in 9M 2010. The reason behind this increase was the increase in the performance of the hotels opened before 2010 as well as new hotels being added to the portfolio in 2010 in Gaziantep and Kayseri. However, as a result of the depreciation in EUR/TL parity, the leased revenue which is indexed to Euro translates into TL 13.319.549 in 9M09, increasing by only 1,95% to TL 13.579.404 in 9M10.
Turkey and Cyprus hotels' total financial debt of EUR 86,3 mn as of 31.12.2009 increased to EUR 91;4 as of 30.09.2010. While the percentage of short term debt was %4 and long term debt was 96% as of 31.12.2009, the percentage of short term debt declined to 1.7% and the percentage of long term debt increased to 98.3 % as of 30.09.2010. The total credit balance of RHI and RPI, both of which are 50% affiliates of Akfen GYO, is EUR 20;5 as of 30.09.2010.
Our previous experience and the historic data show that in order to have a reasonable performance, c.12 to 18 operational months are required for our hotels.
RevPar (RevPar=Occupancy Rate x Room Rate ) increase is significant between the opening year and the following year in our 4 hotels which leads us to foresee the same trend in our 5 new hotels that were opened this year. When a comparison of the performance of Istanbul and Eskisehir hotels between 2007and 2008 is to be made;
Zeytinburnu IBIS 2007- 2008 Revpar increase rate: %47.86 Zeytinburnu NOVOTEL 2007- 2008 Revpar increase rate: %44.32 Eskişehir IBIS 2007- 2008 Revpar increase rate: %34.89
The EBITDA figure of TL 7.764 thousand Akfen REIT in 9M09 showed an increased by 31% and reached TL10.169 thousand in 9M10. The reason behind this increase was the increase in lease revenues, as well as decrease in headquarters opex. Hence, the EBITDA margin of 58.29% in 9M09 increased to 74,89% in 9M10. Further increase in EBITDA margin is expected following the stabilization in performance of the hotels opened in 2010 together with additional hotels to be developed in the meantime.
c. Recent Developments
An agreement between Russian Hotel Investments B.V, a subsidiary of Akfen Gayrimenkul Ticareti ve İnşaat A.Ş (which is also a subsidiary of Akfen Holding A.Ş.) in Holland and also the owner of the companies founded for the hotel developments in Russia, and International Finance Corporation and European Bank for Reconstruction and Development has been signed concerning the borrowing of € 45,2 million project finance loan and becoming a 15% shareholder in Russian Hotel Investments B.V. Partnership agreement negotiations are still in progress.
An agreement regarding purchase of 32.466.150 Group D shares owned by THO B.V (a project company owned by Goldman Sachs), in relation with the put option of Goldman Sachs, was signed on 19 July 2010 and thus put option of THO B.V. has ended and share transfer was made on 31 August 2010 following legal and contractual approvals. Simultaneously during the conduct of the said share transfer, a loan agreement for obtaining loan amounting to EUR78.710.194,04 in total for financing the purchase price for purchase of the shares in Akfen Gayrimenkul Yatırım Ortaklığı A.Ş. by THO B.V. to be purchased from THO B.V. by Akfen Holding and also a certain amount thereof for general company purposes was signed on 19 July 2010. The guarantee of the Loan Agreement is the shares owned by Akfen Holding A.Ş. in Akfen GYO A.Ş.
Construction of IBIS hotel for 200 rooms in Bursa was completed and put into operation in November 2010.
The construction of offices and Ibis hotel of 204 rooms in Samara, Russia has reached a progress level of 70%. The construction of Ibis Hotel with 177 rooms in Yaroslavl has reached a progress level of 40%.
The remaining 50% of the land in Beylikdüzü was purchased on September 30 th , 2010.
A land in Adana was purchased for TL 3.625.000 on August 3rd, 2010 in order to build an Ibis hotel with 161 rooms. Project works started.
A tender organized by General Directorate of Foundations is achieved on 25.08.2010 and the land in Alsancak/Konak is leased for 49 years. The project to develop a 140 room Ibis Hotel on the land has started.
Application for capital increase was made to Capital Markets Board and İstanbul Stock Exchange on August 18 th , 2010 was approved on September 24 th , 2010. Our company's paid-in capital increased to TL 138.000.000 as of 30.09.2010.
G. Akfen İnşaat Turizm ve Ticaret A.Ş.
Akfen İnşaat's completed works corresponds to 1,6 billion dollars while the ongoing works are all consisting of HEPP constructions. Akfen İnşaat's portion of the HEPP investments amounts for EUR 225,2 million, EUR 113,7 million portion of this investment amount is completed and the rest of the investments amounting to EUR 111.5 million is still in process as of the end of September,2010.
Yuvarlakçay HEPP project amounting EUR 3.2 million, Pirinçlik HEPP project amounting EUR 22,5 million and Çatak HEPP project amounting EUR 3,7 million are included in the above-mentioned ongoing works.
The total amount of Akfen Energy companies' electromechanical investments conducted by Akfen İnşaat is EUR 17 million. EUR 10,2 million part of this investment amount is finished and the rest of the investments costing EUR 6.8 million are still in process as of the end of September,2010.
3. Akfen Holding Consolidated Summary Financials as of 30 September 2010
A. Balance Sheet
B. Income Statement
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Mark Cameron Yachts, The Braes, Inverneill, Ardrishaig, Argyll, PA30 8ES, UK
Tel: +44 (0)7988 763 254 | firstname.lastname@example.org
Dehler 34 Top
£28,000 GBP
United Kingdom
Nicely presented 34' cruiser racer.
Manufacturer/Model
Dehler 34 Top
Name
ENYA
Designer
Van De Stadt Group
Year
1989
Category
Sail
Status
Available
Price
£28,000 GBP
Price comment
Nicely presented 34' cruiser racer.
Lying
Argyll, United Kingdom
Specifications
Propulsion
Engine
Yanmar 3GM30F, 27hp marine diesel engine 3 cylinder, direct injection, naturally aspirated, indirectly cooled. Kanzaki mechanical gearbox. Single lever morse control
Engine hours
3,459 hours
Fuel
Diesel
Fuel capacity
35 litres
Accommodation
Drinking water capacity
90 litres
Description
Introduced in 1983 the Dehler 34 Top was a radical design at the time with Dehler adopting a modern take on boat building results in a boat where the requirement for cosmetic maintenance externally is very limited. With no hardwood visible on deck. Dehler were leaders of the pack when it came to experimenting with new materials and finishes in the interiors of their yachts. The modern take on the interior styling gives the boat a contemporary feel; creating a bright and spacious living space while still retaining traditional timber finishes to compliment the modern design. A well proven design the Dehler 34 has been a popular club racer as well as a family cruiser with the layout below decks making the most of the boats 34' length.
The Dehler 34 Top ENYA is reluctantly offered for sale after 16 years with her current owner. With two double cabins and modern finish below decks she has proven to be the ideal family boat. Her inventory includes:
Finished in original light grey gelcoat with contrasting hull decals.
Teak planking finish to cockpit seating.
Yanmar 3GM30F, 27hp marine diesel engine Bronze, two blade prop (2010). Spare two blade feathering prop Sterling Power Products charger 20amp Solar panel mounted on transom gantry Plastimo Neptune 2500 gas cooker, 2 burner, oven and grill (2010) Nexus NX navigation instrumentation Navman Tracker 900 chart plotter Diesel fired blown air cabin heating All standing rigging replaced in 2019 Furlex 200S roller reefing system with twin luff groove foil sections and detachable drum (2005) Mainsail and Genoa by Saturn Sails (2010)
Lying afloat on her berth in Tarbert Harbour, Loch Fyne the Dehler 34 Top ENYA is available for viewing by appointment.
CONSTRUCTION
Hull Construction:
GRP moulded single piece hull.
Moulded internal structural floor pan bonded to hull internally.
Plywood structural bulkheads glassed to hull.
GRP mouldings providing bases for interior furniture units.
Finished in original light grey gelcoat with contrasting hull decals.
Deck & Superstructure Construction:
GRP moulded single piece deck with the integrated cockpit.
Finished in original light grey gelcoat.
Deck finished in painted non-slip panels.
Teak planking finish to cockpit seating.
Keel & Rudder:
Bolt on iron ballast keel, lower section of bulb type profile. Spade rudder.
MACHINERY
Engine:
Yanmar 3GM30F, 27hp marine diesel engine
3 cylinder, direct injection, naturally aspirated, indirectly cooled.
Kanzaki mechanical gearbox.
Single lever morse control
Maintenance & Performance:
Engine last serviced spring 2022
Recorded running hours 3,459hrs
Cruising speed under engine 6kts
Propulsion & Steering:
Stainless steel propshaft
Stainless steel P-Bracket
Bronze, two blade prop (2010)
Spare two blade feathering prop
Solimar pedestal wheel steering.
Stainless steel wheel with hide cover.
Rod and bevel gear linkage
Emergency tiller
Autopilot:
Raymarine ST6002 control head
Raymarine SmartPilot course computer
Raymarine wheel drive unit
General:
12VDC charging socket at nav station
ELECTRICAL SYSTEMS
Voltage systems:
12VDC onboard power system
230VAC shore power system
Shore Power:
Single 16 amp connection
Extension lead to connect to shore supply
Ring main, battery charger
Battery Banks:
Battery Bank – 2x 12VDC, 110Ah, Lead acid
Alternator:
Single engine mounted alternator.
Battery Charger:
Sterling Power Products charger
230VAC – 12VDC, 20amp
Solar Panel:
Mounted on transom gantry
Charger regulator
PLUMBING
Fresh Water:
Pressurised hot and cold water system.
Taps in galley and heads.
Shower in heads
Hot water provided via calorifier, heated by engine only
Bilge Pumps:
Manual Bilge Pump
TANKAGE
Fuel:
Single stainless steel diesel tank
Approximate capacity 35ltr
Fresh Water:
Single fresh water tank.
Approximate 90ltr capacity
NAVIGATION & COMMUNICATION EQUIPMENT
Navigation:
Depth/Speed/Log – Nexus NX Sea Data display
Wind – Nexus NX Wind display – New cups to be fitted to transducer
GPS – Silva Star GPS repeater
Magnetic Compass – Silva 1000
Below Decks:
Plotter – Navman Tracker 900
Communications Equipment:
DSCVHF – Simrad S15
DOMESTIC EQUIPMENT
Galley:
Galley Stove – Plastimo Neptune 2500 gas cooker, 2 burner, oven and grill (2010)
Fridge – Top loading
Double stainless steel sink
Mixer tap
Heads:
Heads – Jabsoc ITT manual marine toilet
Wash handbasin
Mixer tap which extends for use as shower head
Heating:
Diesel fired blown air system
Thermostatic cabin controller
Outlets in saloon and cabins
Lighting:
Overhead lighting in saloon
Bulkhead/cabin side mounted lighting in saloon and cabins
Entertainment:
Tevion CD/Radio/MP3/USB/SD headunit
Speakers in saloon
ACCOMMODATION
Summary of Accommodation:
Twin cabin forward
Saloon with two occasional single berths
Nav Station
Galley
Heads
Double aft cabin
Accommodation Finish:
Joinery work of veneered plywood finished in a white laminate with varnished hardwood trims
Plywood soleboards finished in a teak and holly veneer
GRP moulded heads compartment
GRP moulded head linings
Hull sides lined with carpet where visible
Curtains in saloon
Description of Accommodation from Forward:
Forward Cabin:
Two single berths in a V-formation.
Locker running the length of the bunks overhead, port and starboard.
Bin type lockers for sail storage under bunks.
Storage compartments on forward face of door.
Saloon:
Bench settees running along port and starnboard sides.
Both settees converting to single bunk, backrests lifting to increase bunk width.
Centrally mounted, single drop leaf table with bottle storage in central section.
Storage lockers outboard, above seat backs.
Bin lockers beneath both bunks.
Galley:
To port of the companionway.
L-shaped galley with double sink forward and cooker mounted on gimbals outboard.
In-fill worktop section to cover both sinks and cooker when not in use.
Storage outboard of and below worktop.
Nav Station:
Located to starboard of the companionway.
Outboard facing chat table.
Fold down navigators seat.
Storage for charts is provided within the table and a bosun's locker beneath.
Switch panel and instruments mounted outboard of table.
Aft Cabin:
Access via a door aft of the galley.
Standing room at forward.
Large double bunk extending under the cockpit sole.
Storage lockers overhead outboard and hanging locker forward.
Locker space below bunk base.
Heads:
Access via a door aft of the nav station.
Forward facing manual marine toilet at aft end of the compartment.
Wash hand basin and counter top outboard.
Vanity unit running the length of the compartment outboard
Locker space beneath the counter-top.
DECK EQUIPMENT
Rig:
Deck stepped, single spreader, 7/8ths fractional sloop rig.
Mast and spars in silver anodised alloy, manufactured by Pfeiffer
Standing rigging of stainless steel wire with roll swage terminations
All standing rigging replaced in 2019
Furlex 200S roller reefing system with twin luff groove foil sections and detachable drum (2005)
Slab reefing (single line) mainsail.
Adjustable backstay, block and tackle adjuster
Rod kicker.
Alloy spinnaker pole, stows on stanchions.
Pfeiffer genoa tracks and cars
Lewmar mainsheet track and cars
Easyblock mainsheet tackle
Easylock rope clutches for lines lead aft to cockpit
Lazy jacksWinches:
Primary Winches – 2x Lewmar 40, two-speed, self-tailing
Secondary – 2x Lewmar 30, two-speed, self-tailing
Halyard Winches – 2x Lewmar 30, two-speed, self-tailing
Sails:
Mainsail – White dacron, fully battened, slab reefing. Saturn Sails (2010)
Genoa – White Pentax Dacron, roller reefing, UV strip. Saturn Sails (2010)
Spinnaker
Storm Jib
Canvas Work:
Mainsail cover – Stackpack type cover with mast boot and lazyjacks
Sprayhood
Wheel cover
Pedestal instrument cover
Anchoring & Mooring:
Bower Anchor – Sowester CQR style plough anchor 30m chain / warp
Kedge Anchor – Fortress alloy anchor.
Spare Anchor
Mooring Warps - Selection
Fenders – Selection
General:
Stainless steel pulpit and pushpit rails.
Fold down step on pulpit rail for bow-too berthing.
Toerail mounted stainless steel stanchions supporting guardwires running the length of the deck.
Double roller stemhead fitting.
Moulded toerail outboard
Forward, midships and aft mooring cleats.
Nylon grabrails on outboard edges of coachroof.
Genoa car tracks for genoa or storm jib set inside shrouds in way of mast.
Halyards and control lines lead aft to rope clutches and winches mounted to port and starboard sides of the companionway.
Blue Performance halyard bags beneath winches port and starboard
Moulded cockpit coamings.
Teak planking topped bench seating in cockpit port and starboard
Cockpit locker beneath starboard aft cockpit seat
Shaped GRP helm seat athwart-ships aft.
Steering pedestal mounted centrally aft.
Primary and secondary winches mounted on coamings outboard of cockpit.
Helm seat lifts to provide liferaft storage under.
Guard wire gate in transom allowing access to boarding ladder.
Transom mounted folding swimming/boarding ladder
Outboard storage bracket on starboard side of transom
Stainless steel tubular gantry spanning transom with solar panel mounted on top.
SAFTEY EQUIPMENT:
General note on safety equipment: Any safety equipment such as liferafts, Epirbs, fire extinguishers and flares etc. are usually personal to the current owner(s) and if being left on-board as part of the sale of a used vessel may require routine servicing, replacement, or changing to meet a new owners specific needs.
Navigation Lights:
Masthead tri-colour
Steaming light
Navigation lights
Anchor light
Life saving:
Horseshoe lifebuoy x2
Plastimo Gas Alarm.
Smoke alarm
Fire blanket
DISCLAIMER
In this case we are acting as brokers only.The Owner is not selling in the course of a business. whilst every care has been taken in their preparation , the correctness of these particulars is not guaranteed. The Purchaser is strongly advised to check the particulars and where appropriate at their expense to employ a qualified Marine Surveyor to carry out a survey and/or to have an engine trial conducted which if conducted by us shall not imply any liability for such engine on our part.
This vessel is offered subject to prior sale, price change, or withdrawal without notice.
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Teaching General English in Academic Context: Schema-Based or Translation-Based Approach?
Ebrahim Khodadady
Department of English Language and Literature, Ferdowsi University of Mashhad, Iran E-mail: firstname.lastname@example.org
Seyyed Mohammad Alavi
Department of English Language and Literature, University of Tehran, Iran
E-mail: email@example.com
Reza Pishghadam
Department of English Language and Literature, Ferdowsi University of Mashhad, Iran
E-mail: firstname.lastname@example.org
Mohammad Saber Khaghaninezhad (Corresponding author)
Department of English Language and Literature, Ferdowsi University of Mashhad, Iran
A1C 1Y6, 25 Young street, St. John's, NL, Canada
Tel: 1-779-722-7784 E-mail: email@example.com
Received: January 1, 2012 Accepted: January 7, 2012 Published: March 1, 2012
doi:10.5296/ijl.v4i1.1213 URL: http://dx.doi.org/10.5296/ijl.v4i1.1213
Abstract
This study is one of the first attempts to investigate the effect of schema-based general English teaching and testing on English language learning in an Iranian academic context. A total of 90 undergraduate theology students studying general English at Ferdowsi University of Mashhad (FUM) were assigned to an experimental and a control group. For the same
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course book two instructional approaches were adopted during an academic semester; schema-based instruction (SBI) for experimental and translation-based instruction (TBI) for control groups. At the semester's commencement a schema-based cloze multiple choice item test (MCIT) was developed on the textbook and administered as a pre-test to ensure that the experimental group did not differ significantly from the control group. The same test was administered again at the semester's termination along with an unseen reading comprehension test (URCT) to find out which approach was more effective. Final results showed that the performance of the experimental group was superior to the control group on both MCIT and URCT. The implications of the findings are discussed in the light of teaching English as a foreign language within an academic context.
Keywords: Schema-based instruction, Translation-based instruction, Schema-based cloze multiple choice items tests, Unseen reading comprehension test
1. Introduction
Inspired by Plato's elaboration of the Greek doctrine of ideal types – such as the perfect circle that exists in the mind but which no one has ever seen, Kant (1781) developed the notion further and employed the word "schema" in his writings. For example, he describes the "dog" schema as "a mental pattern which can delineate the figure of a four-footed animal in a general manner, without limitation to any single determinate figure as experience, or any possible image" (p. 41) that can be represented in reality. Early developments of the idea in psychology emerged with the Gestalt psychologists and Piaget (1973). However, it is with the work of Bartlett (1932) that the term came to be used in its modern sense, 'This learning theory views organized knowledge as an elaborate network of abstract mental structures which represent one's understanding of the world' (p. 26).
Bartlett's proposal was neglected in America during the behaviouristic era until its wholesale recapitulation in Neisser's (1967) massively influential Cognitive Psychology. Neisser's work led to the ubiquity of the term in psychology, and its extension to other disciplines, notably the cognitive and computational sciences. Since that time, many other terms have been used as well, including "frame," "scene," and "script". Schemata are important not just in interpreting information, but also in decoding how that information is presented. Schemata can be activated in text structures (Driscoll, 1997; Halliday & Hassan, 1989). Readers use their schematic representations of text (narrative, compare/contrast, cause/effect, etc.) to help them interpret the information in the text. It can also be activated through related image-presentation (Morimoto & Loewen, 2007) while both of these two types of activation is culturally determined according to Kaplan (2007).
Schema Theory, unlike some other learning theories such as "behaviorism" or "cognitive dissonance" does not seek to explain the acquisition of only certain types of behaviors or attitudes. Rather instructional strategies based on the theory, can be applied to any learning situations. Its ability to explain how numerous and different types of knowledge is learned and to suggest appropriate instructional strategies also makes Schema Theory an effective and applicable rationale for educators and instructional designers.
So far, what was said about schemata, the plural of schema, and Schema Theory was a general, universally-accepted description. The term schema, however, has a different and narrower definition in the present study. Schemata are all linguistic manifestations employed by speakers/writers' (henceforth addressers) to convey their intended message. These linguistic items are selected and produced in a given text on the basis of their world knowledge, expectations, personal attitudes, feelings and experiences. The reception or comprehension of the textual schemata is the function of the interaction between addressers and listeners/readers (henceforth addressees). Hence, the degree of comprehending each and all schemata depends on the amount of relevant background knowledge shared by addressers and addressees (Khodadady, 1997).
Khodadady (2008) provided an operationalized definition of schemata so that reading comprehension ability can be measured as accurately as possible. He defined a schema as a
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single word used along with other words to form an authentic text uttered or written for being heard or read under given conditions at specific places and time. The demarcation of schema as the building block of authentic textual products provides linguists and language teachers alike with an objective measure to form their analyses and pedagogy on, respectively.
Although the efficacy of Schema Theory has been documented in few other studies in the context of private language institutes (e.g. Khodadady, Pishghadam & Fakhar, 2010), it seems an educational necessity to investigate its potential for academic centers considering the huge population of Iranian university students. This cluster of studies, which are in the same direction, may confirm the superiority of Schema Theory over the current common language teaching and testing approaches in Iran and thus offer an alternative to improve their quality of education.
This study is an attempt to investigate the effect of schema-based general English teaching and testing in an Iranian academic context. It seems that general English courses at Iranian universities are taught by employing Grammar Translation Method_ 'emphasizing vocabulary memorization, explicit grammar instruction, using students' L1 and the direct translation of texts into L1. This prevalent approach of language teaching is called translation-based instruction (TBI) throughout this study designed to answer the following research questions:
Is there any significant difference in the performance of translation and schema-based instruction groups on the final schema-based cloze multiple choice post-test?
Is there any significant difference in the performance of translation and schema-based instruction groups on the final unseen reading comprehension test?
2. Literature review
All human beings possess categorical frames or scripts which they use to interpret the world. New information is processed according to how it fits into these scripts, called schemata. They can be used not only to interpret but also to predict situations occurring in our environment. Information that does not fit into these schemata may not be comprehended properly and adequately. In contrast to Ausubel's (1968) "Meaningful Receptive Learning Theory", the learners in schema theory actively build and revise their schemata in the light of new information. Each individual's schema is thus unique and depends on that individual's experiences and cognitive processes. Ausubel postulated a hierarchical organization of knowledge where the learner more or less attached new knowledge to the existing hierarchy. In this representation, memory is driven by structure as well as meaning. Knowledge in Schema Theory is not only stored hierarchically but also meaning-driven and probably represented propositionally (Plastina, 2000). These networks of propositions are actively constructed by the learner and expressed whenever necessary. For example, when we are asked to recall a story that we were told, we are able to reconstruct the meaning of the story, but usually not the exact sentences– or even often the exact order in which the story unfolds. We remember the story by actively constructing a meaningful network of schemata stored in our memory.
2.1 Schema-based Instruction
One of the oldest findings in educational research is the strong relationship between vocabulary knowledge and reading comprehension (Hart & Risley, 1995). Word knowledge is crucial to reading comprehension and determines how well students will be able to comprehend the texts they read in middle and high school. Vocabulary experts agree that adequate reading comprehension depends on a person already knowing between 90 and 95 percent of the words in a text (e.g. Hirsch, 2003). Knowing at least 90 percent of the words enables the reader to get the main idea from the reading and guess correctly what the unfamiliar words mean, and thus will help them learn their meaning. Readers who do not recognize at least 90 percent of the words will not only have difficulty comprehending the text, but they will miss out on the opportunity to learn new words.
According to Khemlani (2000), Schema Theory proposes that when individuals obtain knowledge, they attempt to fit that knowledge into some structure in memory that helps them make sense of that knowledge. It also proposes that individuals break down information into generalizable chunks which are then categorically stored in the brain for later recall. Schema Theory is an active coding technique necessary for facilitating the recall of knowledge. As new knowledge is perceived, it is coded into either pre-existing schema or organized into a new script. In essence schemata are organized mental structures represented in linguistic units that aid the learner's ability to understand and associate with what is being presented to them.
Schema-based instruction (SBI) can be assumed as a cover term for a cluster of language teaching techniques which attempt to relate the new linguistic items to be acquired by learners to the author's schemata through various less demanding contexts and modes such as definitions and explanations provided orally or visually. This language teaching approach is based on the premise that readers of a given text will understand it best if they are familiar with the sense of each and all words, i.e., schemata, employed by the writer of the text. Instead of leaving the learners to themselves to look up the contextual meaning of the schemata, they need to be read by the readers and discussed with the teacher within the contexts of the texts in which they appear and whatever modes possible so that the learner's understanding of the schemata would approach to that of the writer. This type of instruction is also called contextual vocabulary instruction (Khodadady, 1997).
The dependence of schema-based instruction on all the schemata comprising authentic texts entails the teachers' familiarity with their domain, genera, species and types and teaching them to their learners right at the beginning of a course. According to Khodadady (2008), schemata can be generally classified into three domains, i.e., semantic, syntactic and parasyntactic;
Semantic schemata are similar to "open class items" (Quirk, Greenbaum, Leech & Svartvik, ‐ 1985, p.42) consisting of four genera, i.e., adjective, adverbs, nouns and verbs. However, while the open-class items include words as they appear in isolation, e.g., in dictionaries, semantic schemata represent the authors' background knowledge of semantic schemata as they joined together by syntactic and parasyntactic schemata to express the authors' intended messages. Since the messages are expressed through semantic schemata, they are many in
type but few in frequency.
Syntactic schemata whose isolated counterparts are traditionally known as "closed class ‐ items" (Quirk, Greenbaum, Leech & Svartvik, 1985, p.44) consist of auxiliaries, conjunctions, determiners, prepositions and pronouns as their genera. In contrast to semantic schemata, syntactic schemata are few in type but many in frequency and thus provide addressers with a definite and finite set of items through which they can connect semantic schemata together in order to express what their authors intend to convey. Syntactic schemata are, therefore, limited in type and are basically employed to constrain the addressers' semantic schemata within various variables including place and time.
The third domain of schemata is parasyntactic and comprises various genera such as abbreviations, names, numerals, and para ‐ adverbs. Parasyntactic schemata are similar to syntactic schemata because they depend on and attach to semantic schemata in order to constrain them within intended variables such as numbers and manners. Some parasyntactic schemata like numeral are, however, similar to semantic ones in that they are many in type but few in frequency. Table 1 presents the parasyntactic as well as semantic and syntactic domains and their genera.
Table 1. Schema domains and genera
| Domains | | | | |
|---|---|---|---|---|
| Semantic | Adjectives | Adverbs | Nouns | verbs |
| Syntactic | Conjunctions | Determiners | Prepositions | Pronouns |
As a new approach to teaching English as a foreign language, the SBI provides learners with a hieratical and holistic view of language by presenting the three semantic, syntactic and parasyntactic domains right at the beginning of the term and helping them realize that English is learnable and what they need is just to master the domains and their genera by resorting to their reading comprehension ability.
Having gained confidence in learning English by mastering only three domains and their genera, SBI gains momentum. Learners are asked to read the passage and assign their schemata to the three domains and their genera. As they do so they start asking what the differences among the schemata comprising a given genus such as adjectives are. At this phase, the researcher offers the species of the genera shown in Table 2. (The schema-based instructor must analyze and categorize all the schemata of whatever texts they teach on the basis of a more detailed codification system consisting of 119 codes. Interested readers can contact the corresponding author for the codes and their examples).
Table 2. The species comprising the genera of schema domains
Facing the learners in the SBI group, it was, for example, asked who wanted to read the title and first paragraph of lesson one given below. One of the learners volunteered, as she was reading the text, the teacher wrote down the schemata mispronounced so that they could be discussed more. Since the schema particular was, for instance, mispronounced the reader was asked what type of schema it was. She said it was an adjective and meant special, however, she could not understand what role the preposition in had in the sentence. When it was said that a preposition preceding an adjective can change it into adverb, she immediately uttered particularly, specially. In response to the question, "Why had the writer used in particular?"
She said that he wanted to describe the action of mentioning.
The study of the religions of the world is of great interest and importance. Three reasons for this may be mentioned in particular. Far more is known about the great religions of the world today than ever before, outside the regions in which each prevails; a great deal of impartial and accurate study during the last hundred years makes it possible to know the faith of others as never previously. It is no longer permissible to speak, as did medieval miracle plays, of Muslims worshipping an idol called Baphomet! And it should be no longer asserted that the Chinese adore Confucius, or that Christians regard the Virgin Mary as the second of three gods.
As another example, for teaching the following paragraph, since the schema revival was mispronounced the reader was asked what type of schema it was. She said it was a noun which is built by –al to the verb revive and meant recovery, however, she could not understand what role the preposition of had in the sentence. When it was said that an of following a noun will give the sense of possession, she immediately uttered like teacher of the class with a smile.
A third reason for the importance of this subject is the revival of life in many of the world's religions. With the rise of nationalism and the recovery of self – government, many eastern lands have turned again to the religion on which their culture has been based. With the example of Christian missions before them Buddhism and Islam, themselves historically missionary religions, have begun to send literature and envoys to other people. Even in Hinduism and Sikhism a similar awakening and outward looking is apparent. The modern world has not yet done with religion. Our scientific age, with its pride and its uncertainties, is only just beginning to realize the strength of the faiths that men have held dear for thousands of years and that are reviving today.
The teacher was watching all the learners while the reader was explaining her answer. This was done to find out whether the whole class was attentive to the interaction or not! In order to emphasize the necessity of their constant attention and participation, it was announced that at the beginning of the next session, the meaning of all the schemata covered in the previous sessions and their domains and genera will be asked and the responses will be scored as announced in the course outline (10% of the final score).
2.2 Translation-based Instruction
The instruction of general English as a course in Iranian universities is very close to Grammar Translation Method (GTM) if not identical. GTM is undoubtedly the oldest, the easiest and understandably the most common approach for teaching English (Howatt, 1984). Although many of its shortcomings have been revealed, it is the prevalent doctrine for general English courses tertiary educational centers in Iran. This is because it is the easiest approach for the teachers and here are some theoretical supports for the application of GTM in second and foreign language learning contexts. There seems, for example, to be a preference, explicitly stated or not, for inter-lingual strategies, which utilize the L1 in the form of a bilingual dictionary, cognates, or L1 translation equivalents, often associated with
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word lists, over intra-lingual strategies, which involve the use of linguistic means of the target language such as synonyms, definitions, or linguistic contexts among many teachers and researchers. As pointed out by Schmitt (1997), intra-lingual strategies are, however, 'pedagogically correct' because they are consistent with principles of communicative language teaching or comprehensive input.
Although Freeman (2000) noted, 'a fundamental purpose [of the TBI] is to read literature and literary prose [because it] is superior to spoken language.' (p.13), many teachers and students alike believe that translation into their first language helps them understand the text easily. Besides, since the written language is considered to be more fundamental, learner's mentality and intellect is to develop by memorizing the needed rules and words and applying this knowledge in writing and interpreting of the selected texts (Richards & Rodgers, 2001). More on the educational side, it can be pointed out that the students should be able to translate a text, write answers to the reading text and then learn grammar deductively (Freeman, 2000).
As the oldest method of language teaching, the Translation-based Instruction (TBI) is still in use in many parts of the world. It maintains the mother tongue of the learner as the reference particularly in the process of learning the second/foreign languages. The method emphasizes the study of grammar through deduction, i.e., learning its rules and applying them to sentences. A contrastive study of the target language with the mother tongue gives an insight into the structure not only of the foreign language but also of the mother tongue. Chastain (1971) referred to some of TBI's advantages as follows:
* Translation interprets the words and phrases of the foreign languages in the best possible manner.
* The phraseology of the target language is quickly explained. Translation is the easiest way of explaining meanings or words and phrases from one language into another. Any other method of explaining vocabulary items in the second language is found time consuming. A lot of time is wasted if the meanings of lexical items are explained through definitions and illustrations in the second language. Further, learners acquire some short of accuracy in understanding synonyms in the source language and the target language.
* The structures of the foreign languages are best learned when compared and contrast with those of mother tongue.
* Teacher's labor is saved. Since the textbooks are taught through the medium of the mother tongue, the teacher may ask comprehension questions on the text taught in the mother tongue. Pupils will not have much difficulty in responding to questions on the mother tongue. So, the teacher can easily assess whether the students have learned what he has taught them. Communication between the teacher and the learner does not cause linguistic problems. Even teachers who are not fluent in English can teach English through this method.
For teaching the control group by employing the TBI, as a sample, the paragraph given in section 2.1 was read loud by the teacher as the learners in the group followed him attentively with their books open. Then, it was translated into Persian sentences by sentences. A brief
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description was also presented for each of the great characters mentioned in the text such as Confucius and Virgin Mary. The students' grammatical questions were welcome and answered by the teacher while the Persian was the medium of all instructional activities throughout the semester.
2.3 Schema–based Tests
Khodadady (1997) was among the first researchers who realized the difficulty of pinpointing an objective unit of language from a psychometric point of view as he embarked on developing multiple choice item tests to measure the reading comprehension ability of native and non ‐ native university students. According to Khodadady (1999), almost all multiple-choice items measuring reading comprehension ability address not sentences but the words comprising the sentences. For example in the following item, if the test taker perceives that the missed word should be a noun, then, other three choices would be omitted automatically. Hence the test taker can select the only choice left (which is a noun) and answer the item correctly without comprehending the meaning of the text even without knowing the meaning of the selected word.
There is an excellent book entitled How to Argue with a Conservative that gives the reader tools necessary for success in argumentation. At times you may have to engage in a verbal skirmish with a(n) …………..It would be to your advantage if you had the proper words at your fingertips. (Bromberg, 2004, p. 112)
Since words are as abstract as sentences, nobody has been able to state what alternatives should be given along with the correct response to measure test takers' reading comprehension ability. Almost all scholars in testing have, however, provided some suggestions for test designers to prepare their multiple choice items. Farhady, Jafarpoor and Birjandi (1994), for example, offered the following 11 guidelines:
1. The stem should be quite clear and state the point to be tested unanimously.
2. The stem should include as much of the item as possible.
3. Negative statements should be avoided because they are likely to be ignored by the examinees.
4. All of the alternatives must be grammatically correct by themselves and consistent with the stem.
5. Every item should have one correct and clearly best answer.
6. All distracters should be plausible; they should be of similar length and level of difficulty.
8. Using "all of the above" or "none of the above" as an alternative is not recommended.
9. Correct responses should be distributed approximately equally and randomly among the alternatives.
10. The stem should not provide any grammatical clue which might help the examinee find the correct response without understanding the item.
11. The stem should not start with a blank.
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As can be seen, none of the suggestions above addresses the nature of choices offered as possible answers and where they should come from. This very allusive nature of distracters has rendered the construction of multiple choice items very notorious and extremely ‐ difficult (Hughes, 1989). To avoid the problem, some scholars have, therefore, suggested that well-functioning multiple choice items be developed by experts (Bachman, Davidson, Ryan, & Choi, 1995). Khodadady (1997) and Khodadady and Herriman (2000) employed schema theory to explain the nature of alternatives employed in multiple choice item tests and employed the term competetives to replace distracters as their traditional counterparts. In contrast to distracters, competitives have semantic, syntactic and discoursal relations with the keyed response of a schema-based cloze multiple choice item and thus measure not only test takers' vocabulary and grammatical knowledge but also their reading comprehension ability.
For example, in the following item the keyed response of the item, i.e., public, is viewed as a schema whose understanding and selection will depend not only on the readers' background knowledge of the schema public itself but also on the other schemata among which it appears in the text. The schemata people and transport, for example, precede and follow the deleted schema public in the first sentence given below and thus calls for the test takers' background knowledge to decide why the other three choices are not appropriate to be chosen. The difference between this item and other traditional cloze multiple choice items is that the three choices, i.e., general, popular and common, given with the keyed response, i.e., public, have semantic and syntactic relationships with each other and thus call for understanding not only the linguistic context in which the deleted word appears but also the three choices offered. There is usually no semantic relationship among the choices of traditional cloze MCITs (Khodadady 1997, 1999).
In the future, people will have to use transport much more. They won't be able to drive into the heart of many towns (Gairns & Redman 1996, p. 8). A. general B. popular C. public D. common
According to Kieffer (1979) while the importance of Schema Theory to ESL/EFL instruction seems to have been aptly and amply demonstrated, its relevance to testing models has yet to be verified. It is argued that no verification has been made so far simply because schema theory has traditionally been approached macrostructurally by focusing on broad terms such as genres and scripts. Schema–based language tests will accommodate both holistic and discrete principles of testing if they are designed microstructurally, i.e., on the words comprising the texts. It is also maintained that the schema-based cloze MCITs do enjoy the advantages enumerated by Keiffer as follow:
1- They would engage the conceptual processes for the students; freeing him or her for the decoding task at hand. Providing the rhetorical schema would allow students to focus on the content. This is supported by Carrel's research (1984) in which ESL/EFL readers who recognized the text's original discourse type and utilized this type to organized their own recall were able to reproduce more information from the original
text. In addition, since L1 schema may differ sharply from English, providing the schema for ESL/EFL learners will reduce the element of cultural bias of tests.
2- Since recall, after the introduction, conforms to the idea structure rather than the linear organization, schema-based tests would be in harmony with the psycholinguistic model of processing. This makes them more comfortable for the student and more valid for the evaluator.
3- It would ensure that a student's grade correlates closely with her/his understanding and he can use the learnt words actively in communication.
4- Usage of Academic, test formal items will result in a polished language and will be a good basis for course-leaving examination. (p.23)
3. Method
3.1 Participants
The study included two separate but complementary phases; for the first phase which was a pilot investigation of the implementation of schema-based testing approaches, some 64 university students who had taken the general English course were recruited. They have been of approximately similar language proficiency levels _ participants have undergone English learning for at least 5 years at school and have passed the same university entrance examination_ and singled out inspired by intact group design. They were students of theology and Islamic studies at Ferdowsi University of Mashhad, Iran. Forty eight participants of this phase of the study were female and 16 were male English learners while their ages ranged from 18 to 43. The participants of the second phase were 78 female and 12 male general English learners whose ages ranged from 18 to 26. They were categorized into two general categories of TBI and experimental.
3.2 Materials
The textbook which was used for this study was English for the students of Theology and Islamic sciences (Ataii & Dasterjerdi, 2002), which is a common source for general English courses at theology faculties in Iran. Each lesson of the book consists of a related reading comprehension followed by a set of true/false items, few multiple-choice items, a couple of fill-in-blanks exercises for newly learnt vocabularies through the passage, and a passage and some of its difficult words to be translated. For the study to be performed, a schema-based instruction and assessment of the course book's texts was needed. Following Khodadady (1997, 1999) and Khodadady and Herriman (2000), all the comprising words (schemata) of eight lessons of the book were schematically categorized and codified into three domains and their constituting genus types. Table 3 shows the frequency of different genus types on the basis of which the proportion of the study's tests items was determined.
Table 3. Schemata type and frequency of the study's course book
| | | | Adj | Adv. | Noun | Verb | Con | Det. | Prep. | Pro | | Syn. | Abb. | Name | No. | Para-adv. | Par | Sym |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | | | | | | | | | | verb | | | | | | |
| LESSON | LESSON | L | 78 | 13 | 149 | 87 | 7 | 25 | 21 | 16 | 14 | | 5 | 23 | 24 | 22 | 1 | 1 |
| | | 1 | | | | | | | | | | | | | | | | |
| | | L | 77 | 14 | 138 | 83 | 7 | 28 | 16 | 26 | 11 | | 5 | 16 | 24 | 24 | 2 | 0 |
| | | 2 | | | | | | | | | | | | | | | | |
| | | L | 99 | 16 | 203 | 152 | 7 | 22 | 25 | 26 | 14 | | 4 | 4 | 36 | 20 | 1 | 0 |
| | | 3 | | | | | | | | | | | | | | | | |
| | | L | 82 | 12 | 210 | 114 | 9 | 21 | 24 | 25 | 13 | | 6 | 6 | 34 | 22 | 3 | 0 |
| | | 4 | | | | | | | | | | | | | | | | |
| | | L | 75 | 10 | 196 | 115 | 8 | 17 | 22 | 24 | 14 | | 5 | 9 | 33 | 22 | 2 | 0 |
| | | 5 | | | | | | | | | | | | | | | | |
| | | L | 78 | 16 | 199 | 118 | 8 | 21 | 22 | 25 | 11 | | 6 | 15 | 36 | 24 | 1 | 0 |
| | | 6 | | | | | | | | | | | | | | | | |
| | | L | 100 | 16 | 192 | 117 | 8 | 23 | 18 | 27 | 18 | | 8 | 15 | 29 | 25 | 1 | 0 |
| | | 7 | | | | | | | | | | | | | | | | |
| | | L | 58 | 12 | 169 | 119 | 9 | 28 | 17 | 33 | 19 | | 3 | 14 | 28 | 22 | 1 | 0 |
| | | 8 | | | | | | | | | | | | | | | | |
| | | | 647 | 109 | 1456 | 905 | 63 | 185 | 165 | 202 | 114 | | 42 | 102 | 244 | 181 | 12 | 1 |
| | Total | | | | | | | | | | | | | | | | | |
3.3 Instruments
Two tests were developed in the study to fulfill two functions, i.e., schema-based cloze multiple choice item test and an unseen reading comprehensions test.
3.3.1 Schema-Based Cloze Multiple Choice Item Test
A schema-based cloze multiple choice item (MCIT) was developed on the passages to be covered during the term in order to achieve two purposes. It was administered as a pre-test at the beginning of the term to find out whether the two TBI and SBI groups were at the same entry level and thus did not differ significantly from each other. And it was administered at the end of the term as an achievement test in order to find out whether the learners had learned the material taught. Following Khodadady (1997, 1999) and Khodadady and Herriman (2000), all the words comprising these paragraphs (as schemata) were put into three domains of semantic, syntactic and parasyntactic and their subcategories. After the schematic categorization, eighty schemata of these paragraphs were deleted and replaced with numbered blanks. For each blank four choices were offered. As Table 3 presents the number of each domain items was determined in accordance with the proportion of these domains and their subcategories in the course book.
Table 4. Descriptive statistics of schema types comprising the course book
| Schema domains of the whole text | Number | Percentage | Number of items |
|---|---|---|---|
| Semantic | 3121 | 70% | 56 |
| Syntactic | 730 | 17% | 14 |
| Parasyntactic | 578 | 13% | 10 |
3.3.2 Unseen Reading Comprehension Test
For constructing the unseen reading comprehension test (URCT), five theology texts whose authors were the same as those of the course books were chosen from Abul Quasem (1983), Ahmad (1978), Al-Ghazzali (1980), Arberry (1980), and Hamidullah (1959). These texts were checked to contain no schema types other than those comprising the texts employed in the instructional process. Neither did the selected texts contain any grammatical structures not covered during the course of the study. Table 5 presents the schematic composure of the 5 texts used for the URCT.
Table 5. Descriptive statistics of schema types comprising the unseen reading comprehension test
| | No. of text’s | No. of | No. of | % of | |
|---|---|---|---|---|---|
| | compromising | familiar | unfamiliar | familiar | |
| | types | types | types | types | |
| Text 1 | 173 | 162 | 11 | 0.936 | 0.064 |
| Text 2 | 198 | 183 | 15 | 0.924 | 0.076 |
| Text 3 | 182 | 164 | 18 | 0.901 | 0.099 |
| Text 4 | 206 | 194 | 12 | 0.941 | 0.059 |
| Text 5 | 258 | 237 | 21 | 0.918 | 0.081 |
The items comprising the URCT were factual, referential and inferential in nature. While factual items require test takers to look for specific facts given in the text, they must match the choices of a referential item with the schemata constituting the text's paragraphs in order to find out which intended schemata they refer to. As the most challenging type of reading ability, however, inferential items call for the test takers' reasoning ability.
3.3 Procedure
During the first pilot study learners underwent the translation-based instruction (TBI) of the course book and took a schema-based cloze multiple choice item test (MCIT) at the end. For designing the schema-based cloze MICT, the instructional materials were broken down into semantic, syntactic and parasyntactic schema domains and their genera, species and types were specified with the aid of this categorization, 80–item schema-based cloze MCIT was developed. Learners of two groups took this achievement test as the final course-leaving examination.
The item analysis performed on the schema-based cloze MCIT administered in the pilot
study showed that seven items out of 80 had inappropriate item difficulty indices, i.e., there were either lower than .25or higher than .85. These items were replaced with other new schema-based items. The revised schema-based cloze MCIT was administered at the beginning of the main study as a pretest to achieve two purposes; first, to find out whether the students of both groups were familiar with the teaching material before the commencement of the treatment, and secondly, to ensure that the learners of SBI and TBI groups did not significantly differ from each other in terms of their reading comprehension ability. At the end of the course, the schema-based cloze MCIT which was previously used as the pre-test was administered again in addition to the unseen reading comprehension test. The comparison of the participants' performances on these two tests made it possible to find out whether the general English learners in the SBI performed significantly higher than their peers in the TBI group as a result of schema-based instruction.
4. Data Analysis
The revised schema-based cloze multiple choice item test (MCIT) was administered at the very beginning of the semester as a pre-test. At the end of the course of study, after the application of two instructional approaches for the participants of the TBI and the SBI groups, their performances were compared on MCIT which had been used as the pre-test. Considering the fact that both the pre-test and post-test was administered on the same day for both of the groups, the effect of maturation as an intervening variable was negligible for the study's interpretation. Accompanied by MCIT, participants of both groups were asked to take an unseen reading comprehension test (URCT) at the termination of the semester. The test was constructed out of the similar texts in terms of compromising schemata. These texts were also written by the same authors of the course book. Table 6 shows the descriptive statistics of the applied tests during the study.
Table 6. Descriptive statistics for the schema-based multiple choice item test used as the study's pre-test and post-test and the unseen reading comprehension test
| | No. of | | | | Std. | Mean | | |
|---|---|---|---|---|---|---|---|---|
| TEST | | Min. | Max. | Mean | | | Mean r pbi | α |
| | items | | | | Deviation | p-value | | |
| Schema Pretest | 80 | 0 | 64 | 19.95 | 11.648 | .25 | .34 | .90 |
| Schema Posttest | 80 | 23 | 75 | 53.38 | 12.565 | .66 | .36 | .91 |
| Unseen Reading Test | 35 | 4 | 22 | 12.59 | 3.931 | .36 | .25 | .64 |
In terms of difficulty, as judged by mean p-value, the schema-based MCIT used as the pre-test (.25) was the most difficult. While the schema post-test and unseen reading comprehension tests enjoyed acceptable levels of difficulty. As can be seen in Table 5, both the schema pre-test (α = .90) and the schema post-test test are highly reliable (α = .91). Among the tests administered in the study, the URCT had the lowest reliability coefficient (α = .64). This degree of moderate reliability was, nonetheless, acceptable because its length was much shorter than the schema-based cloze MCIT.
The experimental enquiry started with gaining certitude about the fact that the participants of two study's groups had not been significantly different in terms of reading comprehension proficiency before the application of the study's treatment. Table 7 shows the mean obtained by the two groups on the schema-based cloze MCIT administered as a pre-test.
Table 7. Means comparison of schema-based cloze multiple choice item test a administered as a pre-test
| | | t | df | Mean Difference | Std. Error Difference |
|---|---|---|---|---|---|
| Schema pre-test | Equal variances assumed | -1.483 | 85 | -3.685 | 2.484 |
| | Equal variances not assumed | -1.457 | 72.393 | -3.685 | 2.529 |
As can be seen, there was not a significant difference between the participants of the two study's groups in terms of their general English language proficiency before the application of the SBI (t= -1.457, p> 0.05). This implies that any significant difference on the part of SBI participants on the final MCIT and URCT results would be the consequence of schema-based instruction.
As Table 8 shows, comparing the means of TBI and SBI English learners on the second administration of schema-based cloze MCIT revealed that those participants who had undergone schema-based instruction (SBI) for the course book outperformed remarkably in comparison with their peers who had experienced translation-based instruction (TBI) (t = -2.247, p < 0.05). This finding answers the first research question in the way that there was a statistically significant difference in the performance of translation and schema-based instruction groups on the final schema-based cloze MCIT.
Table 8- Means comparison of schema-based multiple choice item test (MCIT) used as the study's post-test
| | | t | df | Mean Difference | Std. Error Difference | Sig.(2-ta iled) |
|---|---|---|---|---|---|---|
| Schema post-test | Equal variances assumed | -2.247 | 85 | -5.925 | 2.637 | 0.027 |
| | Equal variances not assumed | -2.257 | 84.899 | -5.925 | 2.625 | 0.027 |
Table 9 shows the comparison of mean scores obtained by the SBI and TBI participants at the study's termination. As can be seen, the (P= 0.00< 0.05) SBI English learners were also statistically superior to TBI learners in comprehending unseen related texts (t = -2.247, p < 0.05). Hence, the second research question was answered; there was a statistically significant difference in the performance of translation and schema-based instruction groups on the final unseen reading comprehension test (URCT).
Table 9. Means comparison of the unseen reading comprehension test (URCT)
| | | t | df | Mean Difference | Std. Error Difference |
|---|---|---|---|---|---|
| Unseen reading | Equal variances assumed | -5.587 | 85 | -4.058 | 0.726 |
| | Equal variances not assumed | -5.489 | 72.657 | -4.058 | 0.739 |
5. Discussion
Anderson (1977), an educational psychologist, played an important role in introducing Schema Theory to the educational community. He pointed out convincingly that, schemata provided a form of representation for complex knowledge and that the construct, for the first time, provided a principled account of how old knowledge might influence the acquisition of new knowledge. Schema Theory was consequently applied to understanding and explaining the reading process, where it served as an important counterweight to purely bottom-up and top-down approaches to reading comprehension ability. It is based on the assumption that the ability depends not only on understanding each and every schema in and out of itself, i.e., bottom-up, but also on finding its semantic, syntactic and discoursal relationships with the other schemata comprising the text, i.e., top down. The authors have tried to embody Schema Theory's theoretical principles in a new language instruction approach and explore its efficacy in an academic context.
Considering the fact that speaker/writer's schemata are highly personalized, a perfect comprehension, which is the essence of any educational program, is very remote if not impossible on the part of the readers/listeners. However, Schema Theory does postulate the possibility of achieving perfect comprehension by employing common semantic features constituting the produced schemata and their mutual sharing by interlocutors provided that they establish the same semantic, syntactic and discoursal relationships among the schemata (Khodadady, 2003).
Global word knowledge is crucial to reading comprehension and determines how well students will be able to comprehend the texts they read, however, research findings do show that the knowledge of the words used in the texts are significantly better predictors of reading comprehension ability than the global words (Khodadady 2000) The present study extends the contextual vocabulary knowledge to the semantic, syntactic and discoursal relationships they hold with each other to bring about the comprehension of English texts dealing with theology on a theoretically sound basis.
On the basis of the results of this study, it is revealed that in addition to remarkable outperformance of all participants on the post-test compared with the pre-test on the same test items, the degree of this betterment is significantly higher for SBI participants who have undergone SBI for their general English course. SBI superiority over TBI is also approved by the mean comparison on the participants' performances on the unseen reading comprehension test (URCT). SBI helped English learners understand the implicit meaning and the syntactic
application of each learnt schema even in unseen texts.
6. Conclusion
This study was an attempt to carry out a systematic inquiry on the efficacy of a new instructional approach in an Iranian academic context. Schema-based instruction (SBI) is based on the premise that general English learners should become aware of the existing internal and dynamic relationships among the words constituting a given authentic text. This awareness helps them understand the fact that synonymous and semantically related words have different and unique applications within texts in spite of their common semantic features. Any slight modification in the lexical network of a text may result in a huge interpreting distortion.
This study was designed on the premise that the traditional approaches of teaching general English courses should be replaced by those being based on a theoretically sound and empirically validated basis. This can be achieved through schema-based instruction (SBI) and testing whose superiority in terms of reliability and validity is established by the results obtained in the study. Although some advantages of translation-based instruction (TBI) proposed by Chastain (1971), were previously mentioned (section 2.2), this study validated the superiority OF SBI within an experimental context;
* Grammar-translation method (GTM) gives pupils the misguided idea of what language is and of the relationship it assumes to exist among words in general. Not only is it assumed that language is a collection or words which are isolated and independent from each other but also it hypothesizes a direct correspondence between foreign words and their equivalents in the native tongue. The SBI is, however, based on the premise that the readers of a given text will understand it best if they are familiar with the contextual meaning of each and all words, i.e., schemata, employed by the writer of the text. In better words, a schema-based instructor, instead of leaving the learners to themselves to grapple with the contextual meaning of the schemata and how they relate to each other, discusses the texts in terms of its constituting schemata and focus on their relationships in all possible contexts and modes so that the learner's comprehension of the schemata would approach to that of the writer.
* The GTM is a particular analysis of the written target language, especially its grammar and vocabulary that are learned from bilingual word lists which might be boring as a main task. In addition, students' mother tongue is used as the medium of instruction and thus deprives the learners from any form of listening and speaking activities other than single word pronunciations and reading aloud. As noted by Richards and Rogers (2001), The GTM "does virtually nothing to enhance a student's communicative ability in the language." On the other hand, schema-based instruction (SBI) employs target language from the beginning to the end of instruction and attempts to help the learners improve their schemata by exposing them to the context in which they are used in the texts under comprehension and discuss them interactively to enhance their speaking ability. Future research must show whether
the SBI brings about significant changes in learners' oral communication as it did with their reading comprehension ability in this study.
The present study investigated the effect of the SBI on reading comprehension ability as a process through teaching and a product through testing and validated its superiority over the TBI. As a linguistic and cognitive process, the ability depends not only on the discoursal relationships present among the schemata constituting given texts but also on the vocabulary and grammatical knowledge of readers. In the teaching process of the SBI learners are also exposed to the meanings of the schemata and their syntactic roles by employing semantics and syntax to assign them to domains, genera, and species. Future research must, therefore, show whether the explicit teaching of schemata meaning and syntax in the foreign language will result in superior performance of learners taught via the SBI.
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Appendix
Appendix 1. Schema-based cloze multiple choice item test
Direction: Read the passages below and choose the best answer marked A, B, C and D. After choosing the best answer, fill in the box corresponding to the number of question in your answer sheet.
Passage 1:
A third reason for the importance of this subject is the ….1….of many religions in different parts of the world. With the ….2….of nationalism and the recovery of self-government, many
2012, Vol. 4, No. 1
eastern lands have ….3….again to the religion on which their culture has been based. With the example of Christian missions before them Buddhism and Islam, themselves historically ….4…..religions, have begun to send literature and envoys to other peoples. Even in Hinduism and Sikhism a similar ….5…..and outward looking is apparent. The modern world has not yet done ….6….religion. Our scientific age, with its ….7….and its uncertainties, is …..8….just beginning to realize the strength of the faiths that men have held …9….for thousands of ….10…. and that are reviving today.
Passage 2:
These pre-literary religions are often …11….in comparative works of this ….12…, or they may be dismissed as '…13….'. But this word is ambiguous. It suggests that the religious manifestations are ….14 or materialistic and even more that we can see in them the …15… the religion first took when it appeared ….16…. men. This assumption is quite arbitrary, for there is …17… evidence that backward people today hold the same beliefs as did the first prehistoric men to show ….18….of religious ideas. All modern ….19… have a history, even where that history is …..20….. and largely unknown. They are modern men, not primordial beings.
Passage 3:
What will become of man if his life is devoid of belief in a(n) …21…. life in the hereafter? Belief in the continuity of life in the next world is a(n) …22… concept. Under its impact, man's life …23… earth assumes new dimensions opening higher horizons of …24…. before
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him, in the absence of which he is inevitably oppressed by a(n)….25…. sense of nothingness, as it means a virtual cutting short of man's total life-span, making him a mere plaything in the hands of his whims and caprices which teach ….26…. nothing but to derive the maximum …27….amount of pleasure during this short sojourn upon the earth. Mutual rivalries, savage battles and conflicts over the possession of ….28…. gains follow, as there is no higher power to control and restrain one's desires. Blinded by greed and lust, man tries to gain ….29…. he can in the shortest span of time. His total perspective of life and its mission is lost altogether. This degrades man to lower planes of feelings and thought. His …..30….sinks low and so do his ideals and the means to achieve them. Mankind is doomed to a perpetual life of hideous internecine wars that scarcely permit it to pursue higher and nobler ends in life.
Passage 4:
Islam is based on the …31…. relation between God and man, God in His absoluteness and man in his …32… theomorphic nature. Islam bases the realization of this ….33…. relationship on the intelligence, will and speech and consequently on ….34…. and certitude. It has sought to establish equilibrium in life by channeling all of man's natural needs and inclinations, all those natural desires and needs such as that for food, shelter, procreation, etc. given by God and ….35…. in human life, through the divine law or shariah. And upon the firm foundations of this equilibrium, Islam has enabled man to build a spiritual castle based on ….36…. and the certainty that there is no divinity other than the Absolute. In this sense its ….37…. is in contrast to Christianity in which love plays the central role and sacrifice is the outstanding ….38….. For this very reason, Christians have often criticized Islamic virtues as being ….39….. and contributing simply to a special equilibrium whereas the Christian love of sacrifice seems to a Muslim as a kind of ….40…..which breaks the universal relationship between what is natural in man and the divine being.
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Passage 5:
Through belief in the ….41….of God, Who is invested with all the attributes of perfection, Islam seeks to …42…. human intellect of the filth of …43… and superstitious fancies. In fact, polytheism and idolatry which are opposed by Islam…44…. man to a level which is incompatible with his dignity. Islam fights ….45…. idolatry and polytheism in whichever forms and to whatever extent they might be found. In its concern to eradicate idolatry, Islam takes notice ….46…. of imperceptible forms of idolatry. It takes notice even of those beliefs and practices which do not appear to their adherents….47…. tainted with idolatry. One of the manifestations of this concern is that Islam does not permit man to…48…. in the name of anyone except God. All this is owing to the uncompromising hostility of Islam to idolatry. In fact, by destroying ….49…. which might blur the distinction between the …50…. and the Creator, Islam has brought man out of the darkness of superstition and ignorance to the full daylight of realities.
Passage 6:
The covenant made between man and god by virtue of …51…. man accepted the trust (amanah) of being an intelligent and free being with all the opportunities and dangers that such a(n) ….52…. implies, is symbolized physically by the stone of the Kaba. Spiritually the …53… of this covenant is contained in the Quran, that central theophany of Islam which is itself the …54…. expression of this eternal covenant between God and Man. In the Quranic verse 'Am I not your …55…?' (7:172), God proposes to man even ….56….the beginning of historical time and the creation of the earth this covenant and in answering 'yes we …57…', man takes up the challenge of this invitation, and agrees to bear this trust as the servant of his lord (abd). In this 'yea' lies the ….58…. and the particular significance of human ....59….., of the life of this theomorphic being …..60…. is God's vicegerent or khalifah on earth.
51 A. what
B. which*
C. who
D. where
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Passage 7:
Those revelations are recorded in the Quran, the Holy Book of Islam. Allah has no …61….attributes. He has no age, no shape, no mother, and no appetites: but neither is He an abstraction. He is a(n) ….62…. and constant presence, cognizant of ….63….person's deeds and thoughts, aware of who follows His ….64….. and who does not. Those commands require …65….of Mohammad s (S) message, social justice, personal ….66…., respect for others, and restraint of ….67….. desires, as well as the performance of devotional duties ….68…. as prayer and fasting. Islam is an Arabic word that means …..69…., submission to the will of God. Muslim, or Moslem, its participial form, means one ….70…..submits.
Passage 8:
The Quran came to pay so great a(n) …71…. on the unity of God both in His essence and ….72…. that it blocked for ever all avenues for polytheism and like ….73….. It is this which constitutes its principal ….74…. to the concept of God. The Quran asserts that God alone is ….75…. of worship. If you turn to any other in devotion you cease to be a believer in the unity of God. It says that he is who answer the cry of man and fulfills his prayers. So, if you ….76…any other with Him in your prayers you …77… associate that …78…. with him in your prayers. You simply associate that one in the ….79…. of attributes of God. Indeed, your belief itself in the unity of God gets …80…
71 A. importance
B. highlighting
C. accent
D. emphasis*
72 A. distributions
B. attitudes
C. attributes*
D. contributions
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Appendix 2. Unseen reading comprehension test
Direction: Read each passage carefully, choose a, b, c or d which best completes the following items and tick the corresponding box in your answer sheets.
Passage 1:
The starting point of Islam is the belief in the unity of God (towhid). The second is that God has not left man without any guidance for the conduct of his life. He has revealed His guidance through His prophets and Mohammad (S) was the last prophet. And to believe in a prophet means to believe in his message, to accept the law which he gave and to follow the code of conduct which he taught. Thus the second basic postulate of Islam is to believe in the prophethood of Mohammad (S), to accept the religion which he presented and to follow his commands.
Every prophet of God, according to Quran, strove to build man's relationship with God on the principle of God's sovereignty and the acknowledgment of the authority of the prophet as the source of divine guidance. Every one of them said: "I am to you God's apostle, worthy of all trust. So be committed to God, fear him, and obey me." The guidance is revealed through the prophets. It is a part of their mission to translate it into practice, in their own lives and in the society they try to reform. All the prophets are representatives of God, but they are human beings and their lives are models for mankind. Mohammad (S) as the last prophet is representative of the Supreme Ruler and we have to follow his example in thought and behavior. The code of behavior, the law which is to decide the lawfulness or otherwise (halal and haram) of things, is given by God through the prophet and is known as the shariah.
Belief in the prophet involves acceptance of the shariah, (the path) he has conveyed and the implementation of that in all walks of life. This is how the will of God is fulfilled on the earth. The Quran says:"We sent not ever any messenger, but that he should be obeyed, by the leave of God." (4: 64). And about the last prophet it explicitly states that: "O believers, obey God, and obey the messenger and those in authority among you. If you should quarrel on anything, refer it to God and the Messenger, if you believe in God and the Last Day; that is better, and fairer in the issue." (4: 62). The test of acceptance of God and His prophet lies in conducting all human affairs in accord with the law revealed by them. Thus, belief in God and His prophet means commitment to obey them both in individual and collective life.
1. The second basic postulate of Islam is ……….. .
A. to believe in the prophethood of Mohammad (S) as the final arbiter
B. to accept the religion which the prophet (S) presented
C. to follow the Prophet's (s) commands
*D. all of the above
2. All the prophets …….. .
*A. called people to God's authority
B. taught some postulates of Islam
C. were committed to God and the people
D. believed in the prophethood of Mohammad (s)
3. The code of behavior ………………
*A. is the heavenly law by which one can judge the lawfulness of things
B. has to be implemented in all one's life without asking any questions
C. has to be followed as part of the Islamic shariah
D. is one of the main requirements of the belief in God
4. The will of God is fulfilled on the earth through ……….
A. practicing the goodness in all walks of life
*B. acceptance of the shariah and application of it in all men’s life
C. imitating the final model of the prophets for man kind
D. Approval of the sanction made by God for the prophet of Islam
5. According to the Quran, disbelievers ………..
A. submit to Prophet's (S) decision whole-heartedly
B. accept the Prophet (S) as the final arbiter
C. on the basis of their own wisdom
*D. make their decisions in opposition with that God has revealed
6. Which word is closest in meaning with the underlined word in the last paragraph?
A. submission B. degradation C. abortion* D. execution
7. What would the best title for this passage be?
A. Islam, the last religion *B. Prophethood
C. Believers in prophets D. Islam starting point
2012, Vol. 4, No. 1
Passage 2:
"The 'Last Day' is a basic article of Islamic faith, along with 'God, His angels, His books, and His messengers'. (Quran 4: 136). The Quran discusses what occurs after death in detail unparalleled by other scriptures. Hence, scholastic theologians, philosophers, and mystics – not to speak of Quran commentators – all have made eschatology one of their principal concerns. The term Maad (return or place of return), used generically for discussions of eschatological realities and events, is derived from the Quranic verses as "What, when we are bones and broken bits …Who will cause us to return? Say: He who created you the first time." (17: 49 – 51)
Systematic discussions of maad are often paired with studies of a second concept, al – mabda (origin or place of origin), for, as the Quran affirms, "As He originated you, so you will return." (7: 29). Works on 'the Origin and the Return' deal with such questions as the nature of the human being and his relationship with God, the reason for man's creation, his ultimate good and the manner in which he can achieve it, the various types of individuals that make up the human race and their respective lodging places in the next world, the ontological distinctions between this world and the next, and the interpretation of the data found in the Quran and the hadith concerning death, resurrection , heaven and hell.
In a wider context,' the Origin and the Return' covers everything that touches upon the manner in which man can achieve his proper place in creation or attain human perfection, whether moral, spiritual, or intellectual. In this sense, jurisprudence (fighh) can be considered a branch of eschatology, since the shariah is the sin qua non in the path of human perfection. In the domain of philosophy, ethic describes the human qualities that bring about the 'practical' (as opposed to the 'theoretical') perfection of the soul, while in Sufism lengthy discussions of the spiritual stations play a similar role. Even politics which describes the ideal human society and the means to achieve it can be considered a branch of eschatology; since man's temporal good can be understood only in terms of his eternal good. In short, the ramifications of eschatological teaching are so broad that it is difficult to study anything Islamic without touching upon them.
8. It is difficult to study anything Islamic without touching upon …………
A. jurisprudence B. ethics
*C. eternity of life D. Sufism
9. Man's worldly good can be understood in terms of his …………..
A. spiritual station *B. otherworldly good
C. perfection of the soul D. belief in Sufism
10. The ontological distinctions between this world and the next fall in the domain of ………..
A. the Return B. the Origin
2012, Vol. 4, No. 1
*C. the Origin and the Return D. the philosophy of Sufism
11. The main Idea of the text is …………….
A. all created things are subject to death and resurrection
B. eschatology is an inseparable part of life on earth
*C. in Islam, everything goes around the issue of resurrection
D. man's creation is as important as his resurrection
12. In Sufism, practical perfection of the soul can be gained through ……………
*A. lengthy discussions B. spiritual stations
C. acts of worship D. the realization of spiritual stations
13. Which word is closest in meaning with the underlined word in the second paragraph?
*A. created B. helped C. saved
D. faded
14. Why can be politics considered as a branch of eschatology?
A. because both have the same final aim for man's life
*B. because temporal good can be defined based on the perpetual good
C. because both have been revealed by God to man
D. because both are everlasting concepts
Passage 3:
The word 'Imam' literally means leader or guide, and in its specifically Shiite meaning, it signifies him who is ordained by God to continue divine guidance after prophecy has come to an end. This is also called 'wilayah', which has almost the same meaning as the 'imamate', but 'wilayah' emphasizes more particularly that special quality of the imam with which he is endowed by God to interpret the inner or esoteric meaning of revelation. 'Wilayah' literally means to be friend or to be nearer to someone; hence, the 'wali', in Shiite terminology, is he who is nearest to God in love and devotion and therefore is entrusted by Him with the esoteric knowledge of religion. The imams are thus the 'awliya' Allah par excellence.
The 'imamate' is based on two principles: 'nass' and 'Ilm'. 'Nass' means that the imamate is a prerogative bestowed by God upon a chosen person from the family of the Prophet(S), who, before his death and with the guidance of God, transfers it to another by an explicit designation, 'nass'. In order to continue the divine guidance necessary for mankind, the first 'nass' was initiated by the Prophet(S) himself who, before his death and under the divine command, designated Ali ibn Abi Talib (AS) as his successor. On the authority of 'nass', therefore, the imamate is restricted, through all political circumstances, to a definite individual from among the descendants of Ali (AS) and Fatemah (SA), whether he claims
temporal rule for himself or not.
The second principle embodied in the doctrine of the imamate is that of 'ilm'. This means that an imam is a divinely inspired possessor of a special sum of knowledge of religion not possessed by anyone else, which can only be passed on before his death to the following imam. In this way the imam of the time becomes the exclusive, authoritative source of knowledge in religious matters, and without his guidance no one can keep to the right path. The doctrine or the imamate in Twelver Shiism thus rotates around these two principles, 'nass' and 'ilm', which are not merely conjoined or added to each other, but are so thoroughly fused into a unitary vision of religious leadership that it is impossible to separate the one from the other.
15.'Wali' in Shiite terminology refers to the person……….
A. chosen by people from among the Prophet's family (SA)
B. entrusted by God from among knowledgeable people
C. chosen only by Prophet (S) from among his family
*D. equipped by God with the impenetrable knowledge of religion
16. According to the principles of imamate, the imam before his death……….
*A. declares his successor clearly B. transfers imamate to another
C. announces the Prophet's(S) designation D. chooses his eldest son
17. When prophecy came to an end, the Prophet (S)……………
A. invited the descendants of Ali (AS) and Fatemah (SA) to designate the first imam
*B. himself announced Ali (AS) as his successor under Allah's command
C. let 'awliya' Allah choose an individual based on 'nass' and 'ilm'
D. suggested imam Ali (AS) to God as his successor
18. According to the principles of 'ilm', an imam…………
A. enjoys having as much knowledge of religion as his predecessor had
B. passes part of his knowledge before his death to the following imam
C. possesses knowledge of religion more than anyone else has
*D. is the exclusive, authoritative source of knowledge of his own age
19. The main idea of the last paragraph is…………
A. the transmission of knowledge through imamate
B. the legitimacy of imamate after Ali (AS)
C. the transfer of imamate among the Prophet's family (SA)
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*D. the unitary concept of religious leadership in Islam
20. Which word is closest in meaning with the underlined word in the second paragraph?
A. possibility *B. right C. doctrine D. guidance
21. What would the best title for this passage be?
A. Knowledge transmission B. Prophet's designation *C. Imamate D. The Twelver Shiism
Passage 4:
What is just? What is unjust? These questions are the basis for political and legal thought. The laws laid down by governments ought to be just, and they ought to be administered fairly. Lawyers' minds have generally been fixed on the second question; political scientists, on the first. However, the basic questions are the same: what is just? and what is unjust? Here, of course, efforts will be made to find answers to the above questions from the Islamic viewpoint. The Islamic holy constitution has placed significant emphasis on justice as one of the most important aspects of personal faith because of its deep involvement with the moral values of ideological belief. The broad concept of justice presented and dealt with in the Islamic holy constitution is an extensive topic and, because of this, only an outline will be presented to show how justice is relevantly connected to personal faith in God. Even though the Islamic holy constitution has spelled out many examples of justice and injustice in different events and it contains strict regulations concerning certain capital crimes, there has not been a clear definition of what is just and what is unjust. Because the aspect of justice cannot be precisely and materially defined, it has been emphatically connected with individual faith and moral conduct. Thus, the Islamic holy constitution has declared in the Prophetic Sunnah (traditions) that: "He will never be a believer, who does not love for his brother whatsoever he loves for himself." This general measurement of personal faith indicates that justice cannot be conceptualized materially by a precise definition. Moreover, each aspect of justice has so many different phases that can be determined only by circumstantial evidence and not by plain definition.
Regardless of this ambiguity concerning justice, the command for justice has to come directly from God Himself instructing mankind to act justly towards others in joint practices designed to promote common or complementary interests. The following verses of the Holy Quran emphasize this very juice of the concept of justice in Islam:
"O believers, be you securers of justice, witnesses for God, even though it be against yourselves, or your parents and kinsmen, whether the man be rich or poor; God stands closest to either. Then follow not caprice, so as to swerve; for if you twist or turn, God is aware of the things you do." (4:135)
22. The questions of 'what is just?' and what is unjust?'
A. are answered in the same way by lawyers and politicians
*B. have various answers for different people
C. are not dependent on individual person's faith in God
D. have ambiguous answers in the Islamic holy constitution
23. The Islamic holy constitution considers justice .....
A. in connection with clear definitions of just and unjust
*B. as a significant aspect of individual faith
C. in connection with philosophical and natural aspects
D. as an emphatic material concept
24. According to Islamic principles, the call for justice is made directly by…..
A.
the prophet B. every angel C. all believers *D. The Creator
25. The concept of 'justice' cannot be defined precisely because…….
A. people override other individuals' rights
B. there isn't any strict regulations concerning crimes
*C. it is relative concept and has many dimensions and aspects
D. people are admonished not to define it materialistically
26. According to Quran, believers should be securers of justice even if……
A. it is not necessary
B. it is very hard
C. it is impossible
*D. it be against yourselves or your parents and kinsmen
27. Which word is closest in meaning with the underlined word in the second paragraph?
*A. structure B. dependence C. elements D. management
28. Which of the following phrases do you suggest as the passage title?
A. Islamic constitution B. Different views toward justice
*C. Justice in Islam D. Prophets' justice
Passage 5:
Man's superiority over the lower beings lies in his reason, and the key of his happiness or unhappiness, his perfection or lack of it, is entrusted to the power of his own competence. If he will choose to walk upon the straight path of good deeds and of knowledge, he can advance himself stage by stage, because of the struggle towards perfection which lies in his
2012, Vol. 4, No. 1
nature. Thus, he may reach the place where the light of God shines upon him, where he finds approach to the highest asylum. If, however, he is passive and allows his nature to have control over him, then he will follow the downward path and his destructive passions will take possession of him. What he chooses is left to man's reason. He may succumb to the lowest 'spirit' in him, namely the bestial, or to the middle, which is feral, or to the highest, which is that of the angels. These are mentioned in the Quran as the 'commanding', the 'blaming' and the 'confident' spirits respectively.
The aim and object of man's life is the attainment of perfection. It is an aim that lies within the compass of man's powers and if he interprets his conceptions in action to the limit of his capacity, then perfection is attained. The perfect or complete man is he who has achieved enduring existence in happiness and finds his felicity in God's commands. Between him and God there will be no evil interposed and in the glory of God's proximity he will find the greatest extreme of happiness.
According to the pre-Aristotelians, happiness was purely a function of the soul. The post-Aristotelians, such as the Stoic philosophers, made happiness a function of the body as of the mind. But that means considering happiness, which is the noblest of things and utterly free from any hint of change or evanescence, dependent upon a contemptible thing like the body and so making it contingent upon chance and accident. Aristotle himself, who had observed the variety of mankind and the differences of man's views with regard to happiness, saw that each man had his own ideal of it and the same man at different times had different ideals. He therefore divided happiness into five parts (health of body being the first), the lack of any one of which made perfect happiness impossible.
On the question whether happiness is to be attained in this world or is to be looked for in the next, the opinion of the older philosophers is that the body is the veil of the soul, which alone could appreciate happiness and that therefore it is only with the destruction of the body that happiness can be achieved. Aristotle said it would be a vile thing were we to say that in this world a man may be a true believer in God and constant in well-doing and yet can be accounted happy only when he and his good deeds perish. The philosopher's view is that there are grades of happiness to be achieved here according to one's effort. The absolutely happy man is he whose happiness does not cease or change and who preserves his equanimity under the vicissitude of fortune. The possessor of such happiness, so long as he is in this world, is in the power of external influences and of the heavenly bodies, and the stars of his good or ill fortune are all about him. But although he may be associated with his fellow-men in misfortune, no ill can cast him down, for he is immune against harm from outside influence.
29. Man will fall to destruction if he……..
A. yields to his blaming spirit *B. lets his nature control him
C. approaches the highest asylum D. keeps away from the straight path
30. Man's highest degree of happiness lies in his
A. pursuit of knowledge B. good deeds
C. confident spirit
*D. proximity to God
31. Regarding happiness as a function of the body means……..
*A. leaving it to chance and accident
B. making it free from any chance
C. letting it loses its noble nature
D. changing it to a contemptible thing
32. Aristotle considers it bad to say that man can be……..
A. a believer in God as well as happy in this world
*B. a constant well-doer as well as happy in this world
C. a believer in God here and happy only in the hereafter
D. a well-doer here and a true believer in the hereafter
33. The possessor of absolute happiness is……….
A. subject to all misfortunes
B. subject to his own feelings
C. safe against all misfortunes
*D. safe against all ills
34. What does the underlined pronoun in the third paragraph refer to?
A. ideals B. difference *C. happiness D. hereafter
35. What is this passage mainly about?
A. different views of happiness *B. how to get the real happiness
C. Aristotle D. different types of spirit man may have
|
CAUSE NO. 380-01407-2013
---------------------------------------------------------------
ORAL DEPOSITION OF
ELISHA [REDACTED]
MARCH 7, 2014
VOLUME 1 OF 1
---------------------------------------------------------------
ORAL DEPOSITION OF ELISHA [REDACTED], produced as a witness at the instance of the Defendant and duly sworn, was taken in the above-styled and numbered cause on the 7th day of March, 2014, from 2:52 p.m. to 3:45 p.m. before Terri L. Edwards, Certified Shorthand Reporter in and for the State of Texas, reported by machine shorthand at 425 Austin Avenue, Suite 1414, Waco, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto.
APPEARANCES
FOR THE PLAINTIFF:
MR. DIRRELL S. JONES (BY TELEPHONE)
ASSISTANT DISCIPLINARY COUNSEL
State Bar of Texas
Office of the Chief Disciplinary Counsel
14651 Dallas Parkway, Suite 925
Dallas, Texas 75254
972.383.2900 (Telephone)
972.383.2935 (Fax)
FOR THE DEFENDANT:
MR. TY CLEVENGER, DEFENDANT PRO SE
ATTORNEY AT LAW
1095 Meadow Hill Drive
Lavon, Texas 75166
202.577.8606 (Telephone)
979.530.9523 (Fax)
INDEX
MR. CLEVENGER: This is Ty Clevenger. It is March 7th at 2:52 p.m. Going on the record. With me in the room are Terri Edwards, [REDACTED], and Elisha [REDACTED], the witness. On the telephone is Dirrell Jones.
ELISHA [REDACTED],
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. CLEVENGER:
Q Ms. [REDACTED], could you please state your full name?
A Elisha [REDACTED].
Q And were you formerly known Elisha Knight?
A Yes.
Q What years did you work in the Federal Courthouse?
A Um --
Q Just about --
A About '94 through '98.
Q Were you a deputy clerk?
A Yes.
Q I want to ask you about an attempted sexual assault
that you and I discussed previously. When approximately did that occur?
A Around 1998, I believe. It's been so long --
Q Sure.
A -- I can't remember the exact date.
Q When -- on that particular day do you remember when
you first saw Judge Walter Smith?
A Yes.
Q And that would be U.S. District Judge Walter Smith, correct?
A Correct.
Q Describe when you ran into him and what happened.
A It was in the morning. It was about 8:30, and I had went down to the water fountain down the hall on the third floor, which is where the clerk's office is and also the judge's office and courtroom. And I went to rinse out my cup, get some water. And about that time Judge Smith came up the stairs, entering the building, coming in for the day. And he stopped and talked to me, "Hi, how are you?" And, really, I had never had a conversation with him, per se. We never crossed paths. The --
Q Before that time?
A Right. I mean, I hardly ever saw him even though we were on the same floor. But this morning he had -- this particular morning he had a pretty strong smell -- I don't know whether it was mouthwash or liquor, but it was pretty strong on his breath. And he -- when he was talking to me. He told me that -- he said, "Come see me sometime." I believe that's the exact words he used. And I was like, "Okay." I kind of thought it was strange. It was kind of a strange request. And so I figured it was, like, you know, come by the office and say "hi" sometimes or something. I don't know. That's kind of the way I took it.
Q Right.
A And I said, "Okay," and anyway --
Q What did you do after that?
A I went back to my desk and started working, and I had some training that I had to do. I can't remember if it was an online, but it was something that was piped in that -training that I did. And I had to go down to the second floor in a room for that, and I was gone the majority of the morning doing that training. I got out about lunch.
Q Let me back up a little bit. You mentioned it smelled like mouthwash or liquor. Did you see or hear anything else that'd give you the impression he might have been intoxicated? Or did you mention to anyone else that you thought he might have been intoxicated?
A Yes, I did.
Q Who did you tell that you thought he might have been intoxicated?
A I told -- I told my supervisor, the district clerk, in San Antonio. They called me about the situation. And when I told them, I told them that I did smell liquor on his breath.
Q Okay.
A And I was pretty certain it was that. And they asked, you know, "Are you sure it wasn't mouthwash and --" you know, but it --
Q It smelled like liquor to you?
A Yes.
Q Okay. So you went to this training session. And then what happened after that?
A I came up to my desk, and immediately my phone rang. And he said, "Where have you been?"
Q You say "he." You mean Judge Smith?
A Judge Smith was on there. He said, "Where -- where have you been? And I said -- he said, "I told you to come see me." And I said, "I had to go to training." I mean, it just -- really, I mean, he'd never called my phone before, my extension, you know. It just really caught me by surprise, and he -- he said, "I told you to come see me." I said, "Well, I didn't mean -- I didn't realize you meant right now." And he said, "Yes, I mean right now. Just come over and tell Sharon that you need to speak to me," which is his secretary. So I was kind of, like, "Okay." So I went over to his office, and his door was closed. I went -- Well, Sharon was sitting right outside his office at her desk, which she's his secretary. And I said -- I -- I said -- I just told her what he told me to say, "I need to see Judge Smith." And so she said, "Okay." And she opened -- she said, "Go ahead and knock on the door," you know. So he came over and opened the door.
And when I went inside I walked in, and he's like, "Come in, come in." And he went behind me and closed the door. And I felt really nervous, but I thought -- you know, about the same time as this happened his -- his courtroom deputy clerk -- or courtroom clerk was retiring, and I knew that position was coming open. I didn't know if maybe -- you know, maybe he was talking -- that's the only thing I could even think of that he would want -- that we would have in common for him to talk to me about.
Q What -- what did he do after that?
A He basically came over to me and put his arms around me and kissed me, and I just froze. I couldn't move. And he said, "Let me make love to you." And I -- and I -- I just freaked out and --
Q Well, did you say anything to him?
A I said -- I said -- it's just stupid. I said, "Right now?" That's what I said. I don't -- I was like, "What? Right now? What?" like that was even the issue. And he said, "Yeah." He said -- And then he -- he pulled me to him again, and he kissed me again and stuck his tongue down my throat, and he pressed himself against me. I could tell he had an erection, and he said, you know, "A couch right here." I'm like -- I was just freaked out. I felt like I was in a -- like, I could hear what he was saying, but it was in -it was distant.
Q Did he --
A I just panicked, and all I thought about was his anger, you know. And I was like how am I going to get out of here without making him angry?
Q Did he -- did he grab you with his hands?
A Yes.
Q What -- what did he do with his hands?
A I mean, he -- he put his arms around me and, you know, just pulled me close and held -- you know, wouldn't let me go.
Q Was he groping you anywhere?
A Yeah. I mean, but --
Q I know this is difficult, and I apologize. But do you mind saying where he groped you?
A Well, I just -- I just remember he just put his arms around me, around my back, and then lower. And then he started to try touch my breasts, and I kind of pushed away and said -- I said, "I -- I need to go." I said, "They're going to be wondering where I'm at in my office. My manager doesn't know where I'm at, so they're going to be wondering where I'm at. I need to get back to my desk." And he's like -- he said, "No, you don't. I'll take care of that." He said, "You just --" he said, "Just let me make love to you, and I have this couch over here." And I'm like -- I was like, "Your wife works in this building. Your --" I mean, I came up -- such weird things came out of my mouth, you know. And in hindsight, you know, I wish I would have said things differently, but I was like -- I -- I was just trying to keep him from blowing up at me because I could tell he was very -he was agitated because I had not come in there earlier that morning. He was already agitated, and I could feel that, you know, and --
Q Did he have a reputation for having a temper, being angry?
A Uh-huh.
Q Is that a "yes," he did?
A Yes.
Q Okay. Did he have a reputation for drinking?
A Yes. I found -- I -- Yes.
Q Okay. And so after that last conversation you just described, did he try to grab you again, or did he physically touch you after that?
A He just took my hand, and he was like, you know, "Just come stay with me in here for a while," and I was just like, you know, "I -- I've got to get back to my desk. I've got to --" I don't really remember too much of what I said. I was just trying to get out of there and --
Q Okay. You want to take a break?
A No.
Q So where did you go? Did you talk to anybody right
after you left his office?
A When I went out of the office, he -- he told me to shut the door behind me and that -- I don't really even know how I got him to allow me to get out of the office. I don't remember exactly what I said. But Sharon was there, and I just told her "Hi." I mean, I felt like I was going to pass out. I knew she could tell something was wrong, but I didn't say anything, you know. And I went back to my desk. And my coworker, Cheryl Willis, came by my desk. And I was just sitting there. I was just sitting in my chair, just -- I don't know. I couldn't even -- I just felt numb. And she said, "What is wrong with you? You look like you've seen a ghost." She said, "You're pale. You're -- What is wrong?" And so she said, "Meet me down at the bathroom." We had a particular bathroom on the third floor that was women only and it was locked and only we had a key to it. And so I went -she went down there, and then I came down there a little later and told her what happened.
Q So you told about what Judge Smith had done?
A Uh-huh.
Q Did -- what -- did she advise you or suggest that you do anything?
A She was just in shock, and I don't remember what she said.
Q Sure, sure. So after that, after you spoke with her, I guess you went back to your office?
A Yes. And he called me again in the afternoon.
Q You said "he." You mean Judge Smith?
A Judge Smith. And asked me, "Take off --" he said, "Take off a couple of days. Take off a couple of days of work. I want to take you somewhere." And I said, "Well, I don't really have that many days, you know, available." I said I'd been sick, and so I'd had to take my sick leave. And, plus, I don't care how many days I had available, I wasn't going to tell him --
Q Sure.
A -- "Oh, sure, let me just block off one of my weeks for you," you know. But he was like, "I want to -- just -just take off a few days. I'll take care of it," you know, "I'll make sure that, you know, you can have the time off and you'll get paid and everything." And I don't remember how the conversation ended.
Q Did you stay the rest of the day or go home?
A I stayed the rest of the day. And that evening I just -- It -- it happened on a Thursday. I know that for sure because on Fridays my schedule was to come in at one o'clock. And so Friday before I came in I called my boss, Mark Borchardt, there at the district clerk's office and said -- I told him what happened. And I said, "Please don't leave me alone with him." I said, you know, "I'm afraid," you know, "He's propositioned me. He's very adamant about it, and he's not even thinking no is an option, or he doesn't even think that I just don't want him," you know, how could I -- I mean, that just wasn't even a -- it's like how could I not be so indebted to him for him making that offer is the way I felt, you know. And so my boss was like -- you know, he got real quiet, and he was like, "Okay." Well, then I came in at one o'clock. And when I walked in, there was a dozen yellow roses on my desk, a big ol' thing. And I just -- I felt like I was going to faint. And my boss was sitting up front. We had a metal table there. And he was just opening the mail and distributing it. And I just looked at him, and he looked at me because he knew exactly what it was.
Q You mean Mark Borchardt?
A Mark Borchardt. And right after -- it was -- I guess he had -- the judge had watched me come in the building, and he paged my desk, and he said, "Where have you been? I've been waiting on you to get here all day. Where have you been?" And I told him, "I don't come in till one o'clock," you know, which was a pretty -- I think I had started doing that, you know, within the last six months or so, so it was fairly new for me, my schedule. And I said, "No, you should not have sent these. You should not have sent these." He's like, "Well, sent what?" And I'm like, "You know what I'm talking about. You should not have sent these. It's just -- you know, it's not right." And he's like, "Well, I just had to. I just had to," you know. And, you know, just kind of nonchalantly like -- I don't know. Then he asked me to take off again. But then he came over to -- from his office to the district clerk's office. And my desk is right -- when you walk in the district clerk's office door, you can see my desk. And he came in and he asked Mark, who was sitting up in the front -- and his office is way in the back of the -- the room. He asked -- he came in and said, "Mark, I need you to go look up -- what was the juror's -- juror number seven on this trial," and he gave a trial number and stuff. And -- and Mark was like, "I don't know, Judge. I'll go find out."
Q So he left you there?
A And he left me there, and he just -- he -- So the judge comes right over to me, you know.
Q Right.
A And I don't remember what happened right then. I was just -- I remember being so mad that he left me in there. And, I mean, it was just -- that's something that he would have -- he was in there digging for for 30 minutes. And he finally came out and said, "I can't find it, Judge, but when I find it I'll bring it." "Okay, Mark. That's fine." And so anyway I -- and then he -- later on he came -- or he called my extension and asked me what I was doing that weekend. I said, "I'm going to see my grandparents." And he said -- anyways he -- he dropped by and he -- he left a note, "I hope you have a pleasant weekend," on my desk. And I just decided that I -over the weekend I wasn't going to come back. I was quitting my job.
Q On that -- on that Friday, as I recall, you said, you know, he propositioned you again to -- to go, like, rent a room? Is that what it was, or --
A No. Like he wanted me to take off work --
Q Okay.
A -- to go somewhere.
Q Okay. So that day ended, had the week -- weekend off. Then what happened after that?
A Well, the weekend came, and I -- I had the keys, you know, to the building, so I went in and just cleaned out my desk, cleaned everything out. And I just left those flowers on the desk. And, you know, my coworker Cheryl told me, she said it was -- she said it was just kind of crazy, you know. Because she said those flowers just sat there and just died, you know. And she said it was -- it was so strange because everybody was, you know, "What's going on?" and -- I don't know. She said it was just strange. And the next week I called Mark, my supervisor, and asked him to please tell my superiors in San Antonio that -- what happened. Because they knew me. I had a good working relationship with them. I've been down there for training. And I didn't want them thinking that I just left, you know, irresponsibly just left my position, just quit.
Q So you asked Mark to tell them why you had left?
A Exactly.
Q Okay.
A So Mark basically accepted my resignation, and he said, well -- he hesitantly said "Okay." Well, it wasn't too -- He met me in a park and my -- my ex-husband at a park, and he had, like, torn out the -- out of the -- the clerk's manual about sexual harassment and gave it to me, folded it up and brought it to me out at a park somewhere.
Q Oh, Mark did?
A Uh-huh.
Q Okay.
A And then -- Can I take a break?
Q Oh, sure. Let's take a -- what? -- five-, ten-minute break?
A Yeah.
MR. CLEVENGER: Okay.
MR. JONES: Okay.
MR. CLEVENGER: I'll call you back, Mr. Jones.
MR. JONES: All right. Bye.
(Recess from 3:16 p.m. to 3:24 p.m.)
MR. CLEVENGER: We are back on the record at
3:24 p.m.
I think when we left off you were talking about you left the weekend and you had resigned and Mr. Borchardt met you at the park. What happened after that?
THE WITNESS: Uh-huh. Well, I had asked Mr. Borchardt to please tell my superiors in San Antonio that -- what the reason was for my leaving.
Q (BY MR. CLEVENGER) Okay.
A And he agreed that he would do that. So it was probably not two hours from that time my supervisor from San Antonio called me at home, and he had the -- the director of human resources with him and also the assistant district clerk there, his assistant.
Q And who was the name of that supervisor? Is that Mr. Putnick [sic]?
A Mr. Putnicki, William --
Q William --
A -- Putnicki.
Q -- Putnicki?
A Uh-huh.
Q Okay.
A Or Bill Putnicki. And he told me that -- he said, "First of all, I want to let you know that Mr. Borchardt -and I let him know that he had no right to accept your resignation. That wasn't within his power to do." And he said that was above and beyond his power. And he said that "I've got Lorrie Asher here." And I forget the other gentleman's name. There were three of them in the room. And basically he asked me, you know, in detail what happened, and -- and I told him. And he said that he was not going to accept my resignation, that I was a good employee and that this was a traumatic event and that he wanted to put me on six weeks administrative leave with pay to think about it. So he said, you know "If you decide that you want to quit after that," he said, "We understand." But he said, "I don't feel like right now it's -- it would be good for you to just quit because this is a good job." You know, it's a good job for a woman in Waco, you know, without a four-year degree. And I'd worked hard to get that job, you know, the right way. And he knew that. He knew my reputation. And so he said, "I'm --" you know, "So that's what we're going to do, you know, we're going to put you on six weeks' leave." And he said, "After that, you know, we'll go from there, see what you want to do."
So --
Q Again, I don't mean to interrupt you.
A No.
Q I believe you told me that sometime while you were on leave you got a call from Judge Smith's law clerk?
A Yes.
Q Who was that?
A Michael Yurkanin.
Q How do you spell that?
A Michael Y-u-r-k-a-n-i-n. He was Judge Smith's law clerk, and he called me the week after that. It was, I would say, a week, maybe two -- no, probably two weeks just because of the events that he said has been -- had been happening, it had been -- He said -- he called me at home, and he said, "Elisha," he said, "You need to put some kind of closure on this. You need to do something about this." He said, "The judge is -- I'm having to go pick him up for work. He can't come into work. He's been in the hospital." He said, "He's, you know, falling apart. He's having to cancel court things, and, you know, he's not functioning. You've got to do something about this."
Q Well --
A And I said --
Q So he was suggesting it was your responsibility?
A Yes.
Q Okay.
A And I was like -- I said, "Michael, I'm the victim here. He did this to me. Why -- you know, what -- you're not even in your right mind to call and tell me to make things better, you know, about this." And he's like, "Well, you just need to do something because I can't do this anymore." In other words, he was feeling the stress of it.
Q So what did he say he wanted you to do?
A He -- I don't know. He wanted me to -- to call and make things better, I suppose. I don't know.
Q Hum.
A He wanted me to have some kind of contact with the judge because I just left, never said anything, never wrote anything, just left the flowers on the desk, and had no further contact with him. So from the way it sounded, he just basically, you know, lost it, not knowing what I was going to do, I -- I suppose. I don't know. I mean, I would hope he would be thinking uh-oh, you know, by this time. I don't know.
Q Do you know what kind of -- what he was in the hospital for? Did anybody say?
A I think he said his blood pressure was up, and -- I don't know --
Q As I --
A -- chest pains and --
Q Okay. As I recall, you -- you said something to me on another occasion about Judge Smith telling other people in the courthouse he was interested in you.
A Uh-huh.
Q What -- what did you hear from those other people?
A Well, I found out that whenever I was first hired -I at first was hired on at the U.S. Probation Office, and he had told -- that was, like, about four years prior when I
started at that building. I worked there for two years, and then I took the job, the position of deputy clerk after about two years. But when I was initially hired -- and I found out this later, that he had told the supervisor that he really liked the last time -- the last hire, you know. And I'm not sure what all he said. But he told me that he, you know, very -- made it very plain that he was very interested and liked -- was -- approved very much of their last hire.
Q This is Mark Borchardt?
A No. This was a -- my supervisor down in -- he was a U.S. probation officer --
Q So from what --
A -- at that time. I -- I went to talk to him because he was the only person that I really trusted. I went to talk to him on that Friday after it happened. And as it turns out, you know, he was like, "Why did you come in here and tell me this? Why are you telling me?" Because the cameras caught me going into his office, and the judge had been in the marshals' office and saw me go into Mr. Reyna's office. And he went in there and questioned him as to what I was in there doing, and Mister -- you know, Mr. Reyna basically just said I -- "Why -why did you do that?" He said, "I -- I just couldn't help myself," you know.
Q Mr. Reyna said that --
A Mr. Reyna asked Judge Smith, "Why did you do that to her?"
Q Oh. So Judge Smith told Mr. Reyna he just couldn't help himself? Is that --
A (Nodding head)
Q "Yes"?
A Yes.
Q Okay. Did Mr. Reyna quote the judge as saying anything else?
A Huh-uh. He just, you know, made it clear that he, you know, watched me every day coming to work, unbeknownst to me.
Q That -- that judge Smith watched you coming to work every day?
A (Nodding head)
Q Okay.
A His office faced out. I don't know that he did, but -- I mean, every day, but he watched me. You know, there's cameras in the marshals' office. There's -- his office faced out over the parking lot where I parked, where everybody parked and came in and -- But obviously he knew exactly when I came in because he knew when to buzz my desk, so he was watching me.
Q Do you know -- I -- as I understand, sometime while you were on leave Mr. Putnicki got in touch with the chief judge; is that correct?
A Correct. He told me that -- Mr. Putnicki said, "I'm going to fly out to meet Judge Hudspeth. He is in charge of anything dealing with sexual harassment with federal employees."
Q This is Judge Harry Lee Hudspeth?
A Uh-huh. And he said, "Mr. Putnicki told me --" He -- he was irate. I mean, he was very upset. He wanted something done about it. He was angry, you know. And he wanted to do all he could to make sure that -- that he did all he could, you know. And so he flew out to West Texas, wherever Hudspeth was, and told him about it. And when he came back -- when he flew back, Judge Hudspeth called me at my house and said, "What do you want me to do about it? What exactly do you want me to do about this?"
Q So was it a dismissive sort of tone?
A Yeah. It was very derogatory, very like, you know, I -- I don't know what you think you're going to get out of this or what -- I don't know. It was ugly. It was very -It was disrespectful. It was demeaning and --
Q Did he -- did he ask you what happened or he just --
A No.
Q Did --
A Huh-uh.
Q No -- no questions about what happened?
A No.
Q Okay.
A He was not concerned one bit about what happened. And I came to find out later that he -- and I don't know this for a fact, but this is just what I heard, is that he evidently had an affair with a someone in his office and got her pregnant. So he had a illegitimate child with somebody in his own office.
Q Judge Hudspeth?
A Hudspeth. So then it kind of all made sense to me, like, you know, so what? What's the big deal? You know, you should be glad --
Q Okay.
A -- or something, you know, just --
Q Did -- was it reported to the 5th Circuit Court of Appeals or the Judicial Council?
A Not to my knowledge.
Q Okay. So no other investigators contacted you?
A Huh-uh.
Q Did you volunteer to testify today, or were you subpoenaed?
A I volunteered.
Q When --
A And I was subpoenaed.
Q When -- when you originally got the subpoena, did you want to testify?
A Not originally, no.
Q So you've not -- have -- have you been peddling this story around, or did somebody have to urge you to talk?
A No. I've been trying to put it behind me. I really -- I was very defensive when I received the subpoena, and I didn't come the first time I was subpoenaed because I didn't want all this. I just didn't want to deal with it again. I didn't want to talk about it. I didn't want to think about it. I didn't want it brought up anymore. I just wanted it gone.
Q I want to ask you about a letter that you wrote to Judge Smith. Did you -- did you write a letter while you were on leave to Judge Smith?
A Yes.
Q And can you describe generally what the letter said?
A It basically said that I had decided that I was going to return to the clerk's office and resume my position and that I want him to stay away from me and not to bother me, not to talk to me, not to call me, to stay away from me, and, you know, that what he did was wrong. It caused me a lot of anxiety and problems. And I -- I -- I wasn't able to find the letter that I wrote, but I know that I sent a copy of it to Mr. Putnicki in San Antonio and to Mister -- and to Judge Hudspeth. They both received a copy of that letter. And so I suppose it's in my file somewhere. I don't remember exactly what I said. All I know is I remember what I thought when I wrote it, and it was, you know, stay away from me.
Q All right. But you ended up resigning anyway afterwards?
A I did. I went -- I went back, and I caught a lot of flack from other people in the office because they were like, "Oh, Elisha can quit and come back whenever she wants to," you know, just -- between that and them not knowing what was going on and they were angry because I got to come back and I could just leave and come back whenever I wanted to. And also the fact that, you know, I was on the same floor as the judge's office, and anytime that I -- you know, I had a fear of walking out into the hall and running -- running into him.
Q Are you aware of any other incidents in which Judge Smith has allegedly harassed or assaulted women who work in the courthouse?
A I had -- I don't know of anything specific.
Q Have you heard anything secondhand, thirdhand?
A I know that he did -- I -- I was told he did have a reputation for, you know, pushing himself on whoever he wanted.
Q I think you mentioned to me on another occasion that there was another woman that worked there in the courthouse that has a similar experience maybe?
A Yes. But I just -- You know, she --
Q Was that before or after your -- what happened to you?
A After what happened to me. I found out a whole lot of things.
Q What was her name?
A I just hate to say because I don't want to mess her life up, you know.
Q I understand.
A She --
Q That's -- that's fine.
A That's her --
Q Sure.
A You know --
Q Sure. That's fine. How did you come to know David Smith?
A Um --
Q Actually, let me back up. Who is David Smith?
A Well, I did not know who he was. I was introduced to him by Parnell McNamara.
Q He's the sheriff of McLennan County, isn't he?
A Uh-huh.
Q At that time was he a --
A He --
Q -- deputy marshal?
A He was a U.S. marshal, yeah --
Q Okay.
A -- deputy U.S. marshal, and he --
Q He introduced you to Mr. Smith?
A Yes. I'm not exactly sure how it kind of all came together other than the fact that David Smith offered to take me to Houston to talk to an attorney to find out if there was anything that could be done about the situation --
Q Okay.
A -- when he found out about it. And, of course, you know, the McNamaras were working in the courthouse at the time, so --
Q Gotcha. So David Smith is the former city manager of Waco?
A City mayor, yeah --
Q Okay. You mentioned earlier --
A -- I believe.
Q -- Mr. Reyna, the probation supervisor. What was his first name?
A Bert.
Q Bert?
A Filiberto.
Q Filiberto Reyna?
A Uh-huh.
Q Okay.
A He is no longer with the probation office. He --
Q Retired, I think.
A He went to -- he moved to the Bureau of Prisons.
Q Okay.
A He moved.
Q Okay.
A And he may be retired from that, so -- but I know I put him in a bad position.
Q Hum.
A You know, anybody that knew anything --
Q Right. Let me ask you this. How did -- how has this incident affected your -- affected you since then?
A It's affected me pretty badly. I went into a pretty deep depression. I had to be hospitalized. It's just caused a lot of stress in my life, but --
Q Does it still affect you now?
A Yes.
Q Has it affected your career?
A Yes.
MR. CLEVENGER: I -- I have no further questions. Mr. Jones?
CROSS-EXAMINATION
BY MR. JONES:
Q Okay. Ms. [REDACTED] --
A Yes.
Q Okay. Have you had any interaction with Judge
Walter Smith since 1998?
A No, sir.
Q Okay. And after that event with Judge Smith in
1998, when did you first speak with Mr. Clevenger?
A Within the past few weeks.
Q So during February of 2014 --
A Yes.
Q -- would have been the first time that you spoke with Mr. Clevenger?
A Yes, sir.
MR. JONES: No further questions.
MR. CLEVENGER: I believe that's it.
MR. JONES: All right. Thank you, Ms. [REDACTED].
THE WITNESS: Thank you.
MR. CLEVENGER: There we go.
MR. JONES: Take care, Mr. Clevenger.
MR. CLEVENGER: Thank you. You, too. Have a good weekend. We're off record at 3:45 p.m.
(The deposition ended at 3:45 p.m.)
CAUSE NO. 380-01407-2013
COMMISSION FOR LAWYER )( IN THE DISTRICT COURT
DISCIPLINE, )( )(
Plaintiff, )( )(
VS. )( 380th JUDICIAL DISTRICT
)(
TY CLEVENGER, )( )(
Defendant. )( COLLIN COUNTY, TEXAS
REPORTER'S CERTIFICATION ORAL DEPOSITION OF ELISHA [REDACTED] MARCH 7, 2014
I, TERRI L. EDWARDS, Certified Shorthand
Reporter in and for the State of Texas, hereby certify to the following:
That the witness, ELISHA [REDACTED], was duly sworn and that the transcript of the deposition is a true record of the testimony given by the witness;
That the deposition transcript was duly submitted on __________________, 2014, to the attorney for the witness for examination, signature and return to me by __________________, 2014.
That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes all parties of record and the amount of time used by each party at the time of the deposition:
Mr. Dirrell S. Jones -- 0 hrs. 1 min.
Mr. Ty Clevenger -- 0 hrs. 44 mins.
That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record:
Mr. Dirrell S. Jones, Attorney for Plaintiff; Mr. Ty Clevenger, Defendant Pro Se;
I further certify that I am neither counsel for, related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of this action.
Further certification requirements pursuant to Rule 203 of the Texas Rules of Civil Procedure will be complied with after they have occurred.
Certified to by me on this _____ day of
__________________, 2014.
___________________________________
TERRI L. EDWARDS, Texas CSR 4055 Expiration Date: 12.31.15 Associated Court Reporters Firm Registration No. 29 425 Austin Avenue, Suite 2102 Waco, Texas 76701
Phone: 254.753.3330
FURTHER CERTIFICATION UNDER RULE 203 TRCP
ORAL DEPOSITION OF ELISHA [REDACTED]
MARCH 7, 2014
The original deposition was/was not returned to
the deposition officer on _____________________________;
If returned, the attached Changes and Signature
page contains any changes and the reasons therefor;
If returned, the original deposition was
delivered to Mr. Ty Clevenger, Custodial Attorney;
That $________________ is the deposition
officer's charges to the Defendant for preparing the original
deposition transcript and any copies of exhibits;
That the deposition was delivered in accordance with Rule 203.3 and that a copy of this certificate was served on all parties shown herein and filed with the Clerk.
Certified to by me this ____ day of
__________________, 2014.
___________________________________
TERRI L. EDWARDS, Texas CSR 4055
Expiration Date: 12.31.15
Associated Court Reporters
Firm Registration No. 29
425 Austin Avenue, Suite 2102
Waco, Texas 76701
Phone: 254.753.3330
|
a
ISSN 1678-457X (Online)
OI: D https://doi.org/10.1590/fst.56621
The level of cardiac troponin T and its possible influence factors in maintenance hemodialysis patients
Yan XU 1 * , Haifeng HU 1 , Meimei SUN 2 , Taisheng TIAN 1 , Jing LI 1
Abstract
We aimed to study level of cardiac troponin T(cTnT) and its possible influence factorsin maintenance hemodialysis (MHD) patients. Blood was obtained from 123 MHD patients before undergoing hemodialysis. Patients with cardiovascular disease (CVD) had higher cTnT levels than those without CVD (0.062 [0.044 - 0.083] ng/mL vs 0.031[0.020 - 0.046] ng/mL, P = 0.002). Patients with diabetes mellitus (DM) had higher cTnT levels than those non-DM (0.061[0.042 - 0.102] ng/mL vs 0.044[0.025 - 0.064] ng/mL, P = 0.003). We found that in all MHD patients, cTnT correlated positively with age(ρ = 0.309, P = 0.001), glycated albumin (ρ = 0.192, P = 0.040), amino-terminal pro-B-natriuretic peptide (NT-proBNP) (ρ = 0.448, P < 0.001), highsensitive C reactive protein(hsCRP) (ρ = 0.335, P < 0.001), carotid artery intima-media thickness (ρ = 0.315, P = 0.004) and left ventricular mass index(ρ = 0.369, P < 0.001); negatively with pre-albumin(ρ = -0.280, P = 0.002), high density lipoprotein cholesterol(ρ = -0.201, P = 0.047). Age (β = 0.204, P = 0.043), NT-proBNP (β = 0.299, P = 0.010) and left ventricular mass index (β = 0.345, P = 0.003) were independently associated cTnT. Receiver operating characteristic (ROC) curves analysis showed the correlation between cTnT and CVD was more closely than NT-proBNP and hsCRP, the correlation between cTnT and left ventricular hypertrophy was lower than NT-proBNP, and higher than hsCRP. In conclusions, serum cTnT is markedly elevated in MHD patients; Serum cTnT is associated with advanced age, fluid overload, malnutrition, microinflammation, left ventricular hypertrophy and CVD in MHD patients.
Keywords: hemodialysis; cardiac troponin T; cardiovascular disease; left ventricular hypertrophy.
Practical Application: We explored the level of cardiac troponin T(cTnT) and its possible influence factorsin maintenance hemodialysis (MHD) patients. Serum cTnT is markedly elevated in MHD patients; Serum cTnT is associated with advanced age, fluid overload, malnutrition, microinflammation, left ventricular hypertrophy and CVD in MHD patients.
1 Introduction
Chronic kidney disease (CKD), increasing mortality as well as health care expenditure, affects 5-10% of the world's population, and renal replacement therapies, including maintenance hemodialysis (MHD) and peritoneal dialysis, are regarded as effective methods for patients with end-stage CKD (Plata et al., 1998; Eknoyan et al., 2004; Waziri et al., 2019). However, while prolonging survival, reducing morbidities, and improving patients' quality of life, renal replacement therapies also increase the chance of occurrence of cardiovascular disease (CVD) (cardiovascular disease), which accounts for almost 40-50% of all-cause mortality, a rate 10 to 30 fold higher than in the general population (Schocken et al., 2008; Moor et al., 2017). A cross‑sectional study from Cameroon indicated that approximately 55% of population in the study presented a moderate or high risk of cardiovascular disease, and duration on dialysis, number of physical activity sessions per week, fasting serum glucose, serum triglycerides, and serum urea levels may impact our hemodialysis patients' risk of CVD(cardiovascular disease) (Moor et al., 2017). Therefore, early diagnosis and effective prevention and treatment of CVD are of great significance, especially for patients who underwent renal replacement therapies. Currently, troponin is recognized
1 Hemodialysis Center, Shanghai Yangsi Hospital, Shanghai, China
2 Department of Nephrology, Pudong New Area Gongli Hospital, Shanghai, China
*Corresponding author: firstname.lastname@example.org
Food Sci. Technol, Campinas, v42, e56621, 2022
as the most sensitive and specific marker of myocardial injury, which generally increases 5-8 h after myocardial injury, reaches the peak value 12-24 h later, and the increase of cTnT lasts 10-14 days. In asymptomatic patients with end-stage renal disease, 16% - 94% of them showed increased troponin (Gupta & Lemos, 2007; Liesemer et al., 2012;). A considerable number of patients with MHD without acute coronary syndrome had elevated serum cTnT levels to varying degrees, and the exact mechanism and clinical significance of the elevated serum cTnT levels were controversial (Wang & Lai, 2008). In this study, serum cTnT levels of MHD patients were detected to explore their pathophysiological mechanism and clinical significance.
2 Materials and methods
2.1 Research object
In August 2019, there were 123 patients with MHD(maintenance hemodialysis) in the blood purification center of Shanghai Yangsi hospital and Pudong New Area Gongli hospital. This study was approved by the medical ethics committee of Shanghai Yangsi hospital and Pudong New Area Gongli hospital, and all subjects
1
signed the informed consent. Inclusion criteria: patients who have maintained hemodialysis for more than 3 months, with over 18-year old and stable condition. Exclusion criteria: patients with severe heart failure, liver disease, severe infection, active tuberculosis, malignant tumor, taking immunosuppressant for active disease; patients with acute cardiovascular events in the past month; patients with peritoneal dialysis or kidney transplantation converted to hemodialysis; patients with recent surgery or blood transfusion history; patients who are unwilling to participate in the study. Dialysis strategy: the patients were all treated with Fresenius 4008B/S dialyzer from Germany and Nikkiso DBB from Japan. The dialyzer was disposable, and the membrane material was polysulfone membrane with an area of 1.4-1.6m2. The dialysis water is reverse osmosis water, standard bicarbonate dialysate, the dialysate flow is 500 mL/min, and the blood flow is 200-300 mL/min. Dialysis prescription is 3 times a week, 4 hours each time. Anticoagulation was performed with heparin or heparin with low molecular weight. The vascular access was autogenous arteriovenous fistula or central venous catheterization. Patients with primary diseases included 58 cases with chronic glomerulonephritis (47.2%), 25 cases with diabetic nephropathy (20.3%), 13 cases with hypertensive renal damage (10.6%), 8 cases with polycystic kidney (6.5%), 4 cases with obstructive nephropathy (3.3%), 4 cases with aristolochic acid nephropathy (3.3%), 3 cases with chronic pyelonephritis (2.4%), 3 cases with lupus nephritis (2.4%), and other 5 cases (4.1%). CVD(cardiovascular disease) refers to those who have been diagnosed with myocardial infarction, angor pectoris, heart failure, cerebral hemorrhage, cerebral infarction and other diseases or who have undergone vascular reconstruction (including cardiovascular and peripheral vascular).
2.2 Clinical data
Clinical data, including age, gender, erythropoietin dosage, smoking history, diabetes history, cardiovascular history and data related to dialysis were collected. Body mass index (BMI) (Body mass index) = body weight (kg) / [height (m)] 2 . Single - compartment model spKt / V was used to evaluate dialysis adequacy.
2.3 Laboratory examination
Routine methods for hemoglobin (Hb) (hemoglobin), white blood cell count (WBC) (blood cell count), serum creatinine (Scr) (serum creatinine), blood urea nitrogen (BUN) (blood urea nitrogen), uric acid, calcium (Ca), phosphorus (P), intact PTH (iPTH) (intact PTH), albumin, prealbumin, triglyceride (TG) (triglyceride), total cholesterol (TCH)(total cholesterol), high-density lipoprotein cholesterol (HDL-C) (high-density lipoprotein cholesterol), low-density lipoprotein cholesterol (LDL-C) (low-density lipoprotein cholesterol), blood glucose, glycosylated albumin, glycosylated hemoglobin, β 2-microglobulin, transferrin, ferritin, homocysteine and high-sensitivity c-reactive protein (hsCRP). The amino terminal pro- B-natriuretic peptide (NT-proBNP) was detected by electrochemiluminescence (ECL) (electrochemiluminescence).
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2.4 Determination of serum cTnT
2 mL fasting blood samples was collected from the patients before dialysis. Electrochemiluminescence method was used to determine it on Roche Elecsys 2010 analyzer, with the lower limit of 0.01 ng/mL. The myocardial injury was considered to exist in the patients with normal renal function when the value was greater than 0.03 ng/mL.
Measurement of carotid intima-media thickness (IMT) (intima-media thickness)
After hemodialysis, the IMT (intima-media thickness) was measured with Philips SD800 ultrasound, and the probe frequency was 7.5MHz. The patient was supine, and 1cm near proximal furcations of the distal common carotid artery, furcations and the posterior wall for 1cm above the starting part of the internal carotid artery was measured. The real-time two-dimensional images of the transverse and longitudinal axes of the common carotid artery and its branches were continuously observed from the root of the neck section by section, with a upward trend, and the end diastolic images were taken to measure the vertical distance from the inner surface of the lumen to the outer surface of the mesomembrane as the carotid IMT (intima-media thickness).
2.5 Echocardiography
All MHD (maintenance hemodialysis) patients underwent echocardiography within 2 hours after HD. It was performed by 2 experienced ultrasound doctors, using Phillips IE33 color Doppler echocardiography with a probe frequency of 3.5MHz. The subjects were lying on the left lateral position, with a standard long axis view of the left ventricle beside the sternum. The systolic and diastolic wall thickness, the change of left ventricular diameter and left ventricular ejection fraction (LVEF) (left ventricular ejection fraction) were measured by the method recommended by the American Society of echocardiography, and the data were measured for 3 cardiac cycles and averaged. The left ventricular mass (LVM) (left ventricular mass) was calculated by Devereux (Schocken et al., 2008) formula. LVM (left ventricular mass) (g) was 0.8 × 1.04 [(left ventricular end diastolic diameter + left ventricular posterior wall thickness + interventricular septum thickness) 3 -left ventricular end diastolic diameter 3 ] + 0.6. Left ventricular mass index (LVMI) (Left ventricular mass index) = LVM(left ventricular mass) / height 2.7 . The diagnosis of left ventricular hypertrophy (LVH) (left ventricular hypertrophy) was defined as: LVMI(Left ventricular mass index) in male > 50 g/m 2.7 , female > 47 g/m 2.7 .
2.6 Statistical analysis
SPSS19.0 software was used for data statistical analysis. The continuity variable is first tested for normality. The differences between the two groups were compared by non-parametric test, t-test or χ 2 test. The correlation between cTnT and each index was analyzed by Spearman correlation and linear regression. The correlation between cTnT, CVD(cardiovascular disease) and LVH(left ventricular hypertrophy) was analyzed by receiver operator characteristic curve (ROC)(receiver operator characteristic). All P values were two-sided test, P < 0.05 was statistically significant. All confidence intervals were 95%.
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3 Results
3.1 General data of patients
There were 123 hemodialysis patients, including 65 males and 58 females, aged 63.0 (53.8 - 71.3) years. Among them, 60 cases (48.8%) were complicated with CVD(cardiovascular disease), including 10 cases with myocardial infarction (16.7%), 7 cases with angor pectoris (11.7%), 10 cases with heart failure (16.7%), 18 cases with cerebral infarction (30.0%), 11 cases with cerebral hemorrhage (18.3%), 4 cases with peripheral vascular disease (6.7%). Echocardiography showed left ventricular hypertrophy in 58 patients (47.2%). See Table 1 for clinical data and laboratory test results of patients.
3.2 Serum cTnT level
The median of Serum cTnT from all patients was 0.046 (0.029 - 0.066) ng/mL, which was higher than the normal
Table 1. Analysis of factors related to serum NT-proBNP level.
EPO, erythropoietin; BG, blood glucose; NT-proBNP, amino-terminal pro brain natriuretic peptide
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reference value. The median of NT-proBNP was 4175.0 (1645.5 13105.5) pg/mL in male patients and 3541.0 (1749.0 - 10971.5) pg/mL in female patients. There was no significant difference between the two groups (P = 0.792). (phosphorus) The median NT-proBNP was 3861.5 (1972.5 - 10845.3) pg/mL in 22 patients aged ≥ 75 years. Among 108 patients < 75 years old, the median NT-proBNP was 3715.0 (1630.0 - 12033.0) pg/mL, with no significant difference between the two groups (P = 0.884) (phosphorus). Among them, the serum NT-proBNP level of patients complicated with CVD (cardiovascular disease) was significantly higher than that of patients without CVD (cardiovascular disease) (4649 [2920-14069] pg/mL vs 3006 [14577478] pg/mL, P=0.002).
3.3 Analysis of factors related to serum cTnT level
Spearman correlation analysis showed that serum cTnT was positively correlated with age, glycosylated albumin, NTproBNP, hsCRP, IM and LVMI (Left ventricular mass index), negatively correlated with prealbumin and LDL-C (low-density lipoprotein cholesterol), and not correlated with dialysis age, spKt/V, weekly dose of erythropoietin, blood pressure, serum albumin, BUN (blood urea nitrogen), Scr (serum creatinine), Ca, P (phosphorus), iPTH (intact PTH), β 2-microglobulin, Hb (hemoglobin) and homocysteine. See Table 1.
3.4 Linear regression analysis of factors related to serum cTnT level
Multiple linear regression analysis showed that age, NT-proBNP and LVMI(Left ventricular mass index) were independently correlated with cTnT level (variables related to single variable analysis and cTnT level, cardiovascular history, diabetes history, smoking history and others were introduced into the regression equation as independent variables, and natural logarithm conversion was performed for skewed distribution data). See Table 2.
3.5 cTnT, NT-proBNP and hsCRP correlated with CVD and LVH
ROC(receiver operator characteristic) curve analysis for CVD(cardiovascular disease) showed that the area under the curve of cTnT was 0.813(95% CI 0.737 - 0.890, P < 0.001); the area under the curve of hsCRP was 0.722 (95% CI 0.6310.813,P < 0.001); and the area under the curve of T-proBNP was 0.656 (95% CI 0.560 - 0.752, P = 0.003). See Figure 1A. ROC (receiver operator characteristic) curve analysis for LVH
Table 2. Linear regression analysis of factors related to serum cTnT level.
NT-proBNP = amino-terminal pro-B-natriuretic peptide; LVMI = left ventricular mass index.
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(left ventricular hypertrophy) showed that the area under the curve of cTnT was 0.741 (95% CI 0.636 - 0.847, P < 0.001); the area under the curve of NT-proBNP was 0.783 (95% CI 0.685 0.880, P < 0.001); and the area under the curve of hsCRP was 0.709 (95% CI 0.600 - 0.817, P = 0.001). See Figure 1B.
4 Discussion
In MHD patients, the factors related to the increase of cTnT are reported abroad, including cardiac hypertrophy, cardiac insufficiency, volume load, myocardial stunning, diabetes mellitus, history of cardiovascular disease, age, chronic inflammation, malnutrition, oxidative stress, increase of dialysis time and others, and the increase of its level is significantly correlated with the increase of mortality (Sommerer et al., 2007; Jacobs et al., 2009; Kalaji & Albitar, 2012; Breidthardt et al., 2012). Therefore, the research interest of troponin in MHD patients has shifted from the diagnosis of suspected coronary syndrome to the application of disease risk stratification (Assa et al., 2013). Our results showed that 73.2% of MHD patients had increased cTnT, which confirmed that there was a considerable increase in serum cTnT level of MHD patients without acute coronary syndrome at different levels. Among them, cTnT of male, diabetic and CVD patients increased significantly, which was consistent with the literature (Park et al., 2009; Breidthardt et al., 2012; Pianta et al., 2012). ROC curve analysis showed that the correlation between cTnT and CVD was higher than that between NT-proBNP and hsCRP. It also suggested that the increase of cTnT was closely related to the occurrence of CVD (Liu & Li, 2021; Rehman et al., 2021; Yerlikaya et al., 2021). Hill et al. (2009) showed that the serum cTnT concentration in MHD patients without acute coronary syndrome was stable within 15 weeks, and the risk of death in MHD patients with increased cTnT was increased. Therefore, the serum cTnT should be detected regularly to establish the individual baseline value. The following reasons were considered
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for cTnT value variation: short-term variation considers the change of volume status, blood pressure fluctuation, and systemic status change, and long-term variation considers the loss of residual renal function or the change of cardiac status, such as the increase of LVMI. Individual variation should not be considered when cTnT value of patients is higher than 0.02 ng/ mL or absolute value is higher than 0.06 ng/mL. Asymptomatic MHD patients should be evaluated every half a year or one year, ECG and cTnT should be examined for risk stratification, echocardiography and other non-invasive cardiac tests should be performed for high-risk patients, so that more patients can benefit from it (Kalaji & Albitar, 2012).
This study showed that serum cTnT was positively correlated with age, glycosylated albumin, NT-proBNP, hsCRP, IMT and LVMI, and negatively correlated with serum prealbumin and HDL-C. Multiple Linear Regression analysis showed that age, NT-proBNP and LVMI were independently correlated with Serum cTnT level, which was consistent with previous studies (Sommerer et al., 2007; Hallén et al., 2011; Kalaji & Albitar, 2012). cTnT related to age is believed to be associated with increased patients with diabetes mellitus and potential CVD with age (Hill et al., 2009). The secretion of NT-proBNP increases when the ventricular wall tension increases, which can be a marker of volume status in vivo, and its independent correlation with cTnT suggests that cTnT is affected by the long-term volume status. Volume overload can cause the increase of cTnT and play an important role in the occurrence and development of vascular and myocardial injury (Park et al., 2009; Antlanger et al., 2013). Long term volume overload can cause LVH, increase diffusion distance of oxygen and aggravate subclinical myocardial ischemia. Moreover, the increase of mechanical traction can also change the permeability of myocardial cell membrane, resulting in the leakage of cTnT. In this study, ROC curve analysis of showed that NT-proBNP and cTnT are closely related to LVH, which
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supports the above viewpoint. In our study, cTnT was increased in patients with diabetes mellitus, and cTnT was positively correlated with glycosylated albumin. It may be related to the increased incidence of CVD caused by poor blood glucose control in patients with diabetes mellitus, and may also be related to the increased level of advanced glycation end-products in MHD patients with diabetes mellitus. Studies have shown that the risk of volume overload caused by hypotension during frequent dialysis is increased in patients with diabetes mellitus, resulting in the increase of cTnT (Park et al., 2009). There was a positive correlation between hsCRP and cTnT in this study, which indicated that myocardial injury could be caused by micro-inflammatory state. IMT is recognized as a subclinical atherosclerotic index, and cTnT is positively correlated with IMT, which support that cTnT elevation in MHD patients may be a marker of subclinical myocardial injury caused by various reasons. Recent studies have shown that standard hemodialysis with 3 times a week can induce myocardial perfusion reduction and regional ventricular wall motion abnormalities. Intermittent dialysis has a significant effect on hemodynamics of MHD patients, and 20% to 30% of patients will have hypotension during dialysis. High incidence of hemodynamic changes and LVH, increased arterial stiffness, left ventricular diastolic dysfunction and other causes increased vulnerability to rapid volume change. In the absence of coronary stenosis, the decrease of coronary flow reserve can significantly increase the risk of myocardial ischemia in MHD patients. It has been reported that compared with the stable dialysis process, if hypotension occurs during the previous dialysis process, the cTnT level of patients will be significantly increased before dialysis (Hung et al., 2004; Breidthardt & McIntyre, 2011; Assa et al., 2013). In this study, serum prealbumin and HDL-C were negatively correlated with cTnT, indicating that malnutrition and decrease of HDL-C were risk factors for CVD in MHD patients. Our results support that both traditional (such as male, advanced age, diabetes and HDL-C reduction and non-traditional risk factors (such as volume overload, micro-inflammatory state, malnutrition, etc.) play an important role in the occurrence and development of CVD in MHD patients.
5 Conclusion
In conclusion, the serum cTnT level in maintenance hemodialysis patients was significantly increased, which was associated with advanced age, volume load, malnutrition, microinflammatory state, left ventricular hypertrophy and concomitant cardiovascular disease. Patients with maintenance hemodialysis should be regularly tested for serum cTnT levels, and patients with highly variable cTnT levels should undergo careful cardiac status assessment even if they have no clinical symptoms, so as to identify high-risk populations in early stage, actively intervene and improve the prognosis of patients.
Ethical approval
All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional and/or national research committee and with
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the 1964 Helsinki declaration and its later amendments or comparable ethical standards.
Conflict of interest
The authors declare that they have no competing interest.
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Caution in Interpreting Diethylenetriamine Pentaacetic Acid Renal Scan in Renal Failure
GautamRam Choudhary 1 , Himanshu Pandey 2 , Suresh Goyal 3 , Prateek Gupta 4
ABSTRACT
Since the invention and use of dynamic radionuclide renal imaging techniques, the diagnosis of urinary tract obstruction has become easier. Amongst this, diuretic renogram using Technetium 99 m Diethylenetriaminepenta-Acetic acid (99 mTc-DTPA) is the most widely used for detecting upper urinary tract obstruction. This is even widely used amongst paediatric population for its higher diagnostic success. But, even these techniques might misdiagnose or may reveal incomplete data of the renal derangement causing increased morbidity and mortality.
We present a case of a 34-year-old male patient with impaired renal function for which DTPA scan was done twice, which revealed partial obstructive nephropathy with hydronephrosis of left kidney. But a retrograde pyelogram was performed which showed complete obstruction at the upper part of the ureteric segments. This required a robot assisted pelvi-ureteric anastomosis to release the hydronephrosis. Here the DTPA scan findings were misleading on both occasions. This does emphasise the need for an array of investigations to evaluate or exclude any clinical suspicion.
Keywords: Obstructive nephropathy, Percutaneous nephrostomy, Pelvi-ureteric anastomosis
Case Report
A 34-year-old male patient, with 65 kg body weight, was hospitalised with complaints of vague abdomen pain with elevated serum creatinine values (2.4 mg/dL). In past, right Percutaneous Nephrolithotomy (PCNL) was performed in January 2017 (serum creatinine: 1.3 mg/dL). In March 2017, left PCNL was performed for residual stones and it was repeated again in July 2017 during which the nephrostomy was kept in situ (output: 1000-1300 cc/ day). In August 2017, DTPA scan was done (GFR: 15 mL/min out of total 37.69 mL/min) [Table/Fig-1]. This was followed by, left open pyeloplasty in September 2017 and patient was later referred to this hospital for further management.
A left Percutaneous Nephrostomy (PCN) was performed, which drained 150-200 cc urine per day. After a month, PCN output increased marginally (200-300 cc per day) and the Nephrostogram revealed complete cut-off at Pelvi-Ureteric Junction (PUJ) level [Table/Fig-2a] with grossly hydronephrotic left kidney [Table/Fig-2b], DTPA renal scan was done again on June 2018 (GFR: 17.9 mL/min out of total 42 mL/min), which revealed partial improvement of function with delayed clearance [Table/Fig-3]. Yet, it was decided to perform a Retrograde Pyelography (RGP) and proceed.
Under general anaesthesia, a left side RGP was performed along with nephrostogram, which showed complete occlusion at the small, upper most ureteric segment. For this, a Robot assisted pelvi-ureteric anastomosis was done with polyglactin 4-0 suture in an interrupted manner and the lower pole of kidney was stitched to psoas muscle.
Discussion
Obstructive nephropathy can pose a threat of partial or complete loss of renal functioning. Hence timely diagnosis is the key which is required for management and protecting the renal parenchyma from permanent destruction. For suspected PUJ obstruction, renal scintigraphy provides differential glomerular function and drainage pattern. Nonetheless, selecting the type of scintigraphy method depends on the serum creatinine level, availability of the test and trend of routine practice. In the present case, the patient had impaired renal function, for whom Technetium 99m DTPA ( 99m Tc-DTPA) method was done twice but it mislead the diagnosis.
Journal of Clinical and Diagnostic Research. 2020 Mar, Vol-14(3): PD03-PD05
Accurate assessment of Glomerular Filtration Rate (GFR) is important in detecting the exact cause of the signs and symptoms, detecting its severity, deciding the management of the condition and assessing the prognosis of the disease [1]. There are certain non-invasive tests such as Chronic Kidney Disease Epidemiology
3
[Table/Fig-2]: a) Left sided nephrostogram showing complete cut-off at pelvi ureteric junction; b) Non-contrast computed tomography images showing thinned out renal parenchyma and grossly dilated pelvicalyceal system.
Collaboration (CKD-EPI) equation and Modification of Diet in Renal Disease (MDRD) equation [2]. While there are certain renal dynamic imaging techniques using technetium labelled agents used for renal scintigraphy to estimate GFR, differential renal function and urinary drainage. However, sometimes it is difficult to choose which one is better. As in this case, DTPA scan gave inadequate data while RPG helped in identifying the extent of occlusion. These dynamic imaging techniques have certain benefits as they achieve the data of unilateral renal blood flow and kidney function, they are quick and less time consuming and the outcomes are independent of the diet of the patient [3,4]. The DTPA scan allows having a constant monitoring during the entire scan procedure and provides information not only of the renal functioning but also about the pelvi-ureteric drainage. In these procedures, fewer amounts of radiations are used, hence they have minimum risk of nephrotoxicity [5].
Nevertheless, 99mEthylene di-Cysteine (EC) and 99mTcMercaptoacetyltriglycine (MAG3) are better than 99m Tc-DTPA in
4
evaluating function and drainage in patients with impaired renal disorders. Also, there are differences in scan quality despite the use of the same radiopharmaceutical, comparable equipment and identical billing [6,7]. Xie P et al., in a study on 149 patients measured GFR by: (a) dual plasma sample clearance method (tGFR); (b) renal 99mTc-DTPA method (dGFR); (c) CKD-EPI equation (eGFR) and patients were categorised into 2 subgroups based on the GFR (GFR <60 and >60) [3]. On comparison of dGFR with eGFR, percentage of eGFRs within 30% and 15% of tGFR was not higher than that of dGFR (71.14% vs 66.44% for 30% accuracy, p=0.419; 48.99% vs 41.61% for 15% accuracy, p=0.207) The precision of eGFR was not significantly lower than that of dGFR (14.34 ml·min-1·(1.73m 2 )-1 vs 15.39 mL·min-1·(1.73 m 2 )-1; F=1.152, p=0.831) and they conclude that both CDK-EPI equation and renal dynamic imaging can be used to determine the GFR of CKD patients, CDK-EPI equation is more accurate than renal dynamic imaging.
In another study done by Yildiz G et al., compared estimated GFR (eGFR) calculated with the formulas of Cockcroft-Gault (C&G), MDRD, CKD-EPI and Mayo Clinic Quadratic (Mayo Q) and GFR (mGFR) that was scintigraphically measured with creatinine clearance (CrCl) and 99m Tc-DTPA [8]. The values of 99m Tc-DTPA based on mGFR were compared with eGFR values of the formulas. Significant correlations were found with the values of 99m Tc-DTPA, mGFR, CrCl, MDRD, CKD-EPI, Mayo Q and C&G eGFR. The best estimate was made with MDRD-6 in the cases with 99m Tc-DTPA, mGFR was <30 mL/min/1.73 m 2 and with MDRD-4 in the cases with 99mTc-DTPA, mGFR was ≥30 mL/min/1.73m2 [4]. These two above mentioned studies and many others suggests that DTPA perform well in diagnosing even in impaired renal function.
But in the above-mentioned case, twice DTPA was performed and at both occasions it failed to detect the pathology thus causing failure in diagnosis. In this case, kidney function deteriorated with time and even the urine output also decreased significantly, however DTPA falsely showed high GFR compared to prior one [Table/Fig-2a,b]. One of the possible reasons for this could be the impaired renal function which reduces the response to the diuretics administered. Due to obstruction, the entire collecting system might be dilated. Hence when the 99m Tc-DTPA is passed till 20 minutes post-administration, the chances that the entire collecting system wouldn't be completely filled with the tracer [4].
But these are just hypothesis which require further clinical trials for confirmation. The urologist plays a key role is analysing the clinical presentation and the investigation values apart from the negative findings on imaging. Multiple and varied imaging tests should be conducted to rule out any possibilities of any false negative results. In this scenario, 99m EC or 99m Tc-MAG3 would have been a preferred moiety over 99m Tc-DTPA. Creatinine clearance of PCN output could have been performed.
Conclusion(s)
In patients with impaired renal function, renal DTPA can be a noninvasive tool to evaluate renal function; however it has its limitations and should be considered as an adjunctive tool for work-up. Diversion with PCN gives exact urine output of that moiety. Apart from recent advances in scan technique,analysing the clinical and laboratory parameters aid in early diagnosis which could salvage the poorly functioning renal moiety.
References
Inker LA, Schmid CH, Tighiouart H, Eckfeldt JH, Feldman HI, Greene T, et al. [1] Estimating glomerular filtration rate from serum creatinine and cystatin C. N Engl J Med. 2012;367(1):20-29.
Gomez Marcos MA, Rodriguez Sanchez E, Recio Rodriguez JI, Martin Cantera [2] M, Ramos Blanes R, Garcia Ortiz L. Differences between the CKD-EPI and the MDRD equations when estimating the glomerular filtration rate in hypertensive patients. Nefrologia. 2010;30(4):458-62.
Xie P, Huang JM, Liu XM, Wu WJ, Pan LP, Lin HY. (99m)Tc-DTPA renal dynamic [3] imaging method may be unsuitable to be used as the reference method in investigating the validity of CDK-EPI equation for determining glomerular filtration rate. PLoS One. 2013;8(5):e62328.
Journal of Clinical and Diagnostic Research. 2020 Mar, Vol-14(3): PD03-PD05
Lin KJ, Huang JY, Chen YS. Fully automatic region of interest selection in [4] glomerular filtration rate estimation from 99m Tc-DTPA renogram. J Digit Imaging. 2011;24(6):1010-23.
Lin CC, Shih BF, Shih SL, Tsai JD. Potential role of Tc-99 m DTPA diuretic renal [5] scan in the diagnosis of calyceal diverticulum in children. Medicine (Baltimore). 2015;94(24):e985.
Taylor AT. Radionuclides in nephrourology, part 1: Radiopharmaceuticals, quality [6] control, and quantitative indices. J Nucl Med. 2014;55(4):608-15.
PARTICULARS OF CONTRIBUTORS:
1. Associate Professor, Department of Urology, All India Institute of Medical Sciences, Jodhpur, Rajasthan, India.
2. Associate Professor, Department of Urology, All India Institute of Medical Sciences, Jodhpur, Rajasthan, India.
3. Senior Resident, Department of Urology, All India Institute of Medical Sciences, Jodhpur, Rajasthan, India.
4. Senior Resident, Department of Urology, All India Institute of Medical Sciences, Jodhpur, Rajasthan, India.
NAME, ADDRESS, E-MAIL ID OF THE CORRESPONDING AUTHOR:
Dr. Prateek Gupta,
PLAGIARISM CHECKING METHODS: [Jain H et al.]
Department of Urology, All India Institute of Medical Sciences,
Jodhpur-342005, Rajasthan, India.
E-mail: firstname.lastname@example.org
Author declaration:
* Financial or Other Competing Interests: None
* Was informed consent obtained from the subjects involved in the study? Yes
* For any images presented appropriate consent has been obtained from the subjects. Yes
Journal of Clinical and Diagnostic Research. 2020 Mar, Vol-14(3): PD03-PD05
* Plagiarism X-checker: Oct 28, 2019
* Manual Googling: Jan 23, 2020
* iThenticate Software: Feb 12, 2020 (16%)
Etymology: Author Origin
Date of Submission: Oct 28, 2019
Date of Peer Review: Jan 03, 2020
Date of Acceptance: Jan 27, 2020
Date of Publishing: Mar 01, 2020
Taylor AT. Radionuclides in nephrourology, Part 2: Pitfalls and diagnostic [7] applications. J Nucl Med. 2014;55(5):786-98.
Yildiz G, Mag˘ den K, Abdulkerim Y, Ozcicek F, Hür E, Candan F. Glomerular [8] filtration rate: which method should we measure in daily clinical practice? Minerva Med. 2013;104(6):613-23.
5
|
Artificial Intelligence
Chapter 1
♦ What is AI?
♦ A brief history
♦ The state of the art
Outline
Acting humanly: The Turing test
Turing (1950) "Computing machinery and intelligence":
♦ "Can machines think?" −→ "Can machines behave intelligently?"
♦ Operational test for intelligent behavior: the Imitation Game
♦ Predicted that by 2000, a machine might have a 30% chance of fooling a lay person for 5 minutes
♦ Anticipated all major arguments against AI in following 50 years
♦ Suggested major components of AI: knowledge, reasoning, language understanding, learning
Problem: Turing test is not reproducible, constructive, or amenable to mathematical analysis
Thinking humanly: Cognitive Science
1960s "cognitive revolution": information-processing psychology replaced prevailing orthodoxy of behaviorism
Requires scientific theories of internal activities of the brain
– What level of abstraction? "Knowledge" or "circuits"?
– How to validate? Requires
1) Predicting and testing behavior of human subjects (top-down)
or 2) Direct identification from neurological data (bottom-up)
Both approaches (roughly, Cognitive Science and Cognitive Neuroscience) are now distinct from AI
Both share with AI the following characteristic:
the available theories do not explain (or engender) anything resembling human-level general intelligence
Hence, all three fields share one principal direction!
Thinking rationally: Laws of Thought
Normative (or prescriptive) rather than descriptive
Aristotle: what are correct arguments/thought processes?
Several Greek schools developed various forms of logic: notation and rules of derivation for thoughts; may or may not have proceeded to the idea of mechanization
Direct line through mathematics and philosophy to modern AI
Problems:
1) Not all intelligent behavior is mediated by logical deliberation
2) What is the purpose of thinking? What thoughts should I have out of all the thoughts (logical or otherwise) that I could have?
Acting rationally
Rational behavior: doing the right thing
The right thing: that which is expected to maximize goal achievement, given the available information
Doesn't necessarily involve thinking—e.g., blinking reflex—but thinking should be in the service of rational action
Aristotle (Nicomachean Ethics):
Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good
Rational agents
An agent is an entity that perceives and acts
This course is about designing rational agents
Abstractly, an agent is a function from percept histories to actions:
For any given class of environments and tasks, we seek the agent (or class of agents) with the best performance
Caveat: computational limitations make perfect rationality unachievable
→ design best program for given machine resources
AI prehistory
Philosophy
logic, methods of reasoning mind as physical system
foundations of learning, language, rationality
Mathematics
formal representation and proof
algorithms, computation, (un)decidability, (in)tractability probability
Psychology
adaptation
phenomena of perception and motor control experimental techniques (psychophysics, etc.)
Economics formal theory of rational decisions
Linguistics knowledge representation
grammar
Neuroscience
plastic physical substrate for mental activity homeostatic systems, stability simple optimal agent designs
Control theory
Potted history of AI
♦ Drive safely along a curving mountain road
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Translate spoken English into spoken Swedish in real time
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Translate spoken English into spoken Swedish in real time
♦ Converse successfully with another person for an hour
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Translate spoken English into spoken Swedish in real time
♦ Converse successfully with another person for an hour
♦ Perform a complex surgical operation
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Translate spoken English into spoken Swedish in real time
♦ Converse successfully with another person for an hour
♦ Perform a complex surgical operation
♦ Unload any dishwasher and put everything away
♦ Drive safely along a curving mountain road
♦ Drive safely along Telegraph Avenue
♦ Buy a week's worth of groceries on the web
♦ Buy a week's worth of groceries at Berkeley Bowl
♦ Play a decent game of bridge
♦ Discover and prove a new mathematical theorem
♦ Design and execute a research program in molecular biology
♦ Write an intentionally funny story
♦ Give competent legal advice in a specialized area of law
♦ Translate spoken English into spoken Swedish in real time
♦ Converse successfully with another person for an hour
♦ Perform a complex surgical operation
♦ Unload any dishwasher and put everything away
Intelligent Agents
Chapter 2
Outline
♦ Agents and environments
♦ Rationality
♦ PEAS (Performance measure, Environment, Actuators, Sensors)
♦ Environment types
♦ Agent types
3
Agents and environments?
agent
percepts
sensors
actions
environment
actuators
Agents include humans, robots, softbots, thermostats, etc.
The agent function maps from percept histories to actions:
The agent program runs on the physical architecture to produce f
Vacuum-cleaner world
Percepts: location and contents, e.g., [A, Dirty
Actions: Left, Right, Suck, NoOp
]
A vacuum-cleaner agent
function Reflex-Vacuum-Agent([location,status]) returns an action
```
if status = Dirty then return Suck else if location = A then return Right else if location = B then return Left
```
What is the right function?
Can it be implemented in a small agent program?
Rationality
Fixed performance measure evaluates the environment sequence
– one point per square cleaned up in time T ?
– one point per clean square per time step, minus one per move?
– penalize for > k dirty squares?
A rational agent chooses whichever action maximizes the expected value of the performance measure given the percept sequence to date
```
Rational ̸= omniscient – percepts may not supply all relevant information Rational ̸= clairvoyant – action outcomes may not be as expected Hence, rational ̸= successful
```
Rational ⇒ exploration, learning, autonomy
PEAS
```
To design a rational agent, we must specify the task environment Consider, e.g., the task of designing an automated taxi: Performance measure?? Environment?? Actuators?? Sensors??
```
PEAS
To design a rational agent, we must specify the task environment Consider, e.g., the task of designing an automated taxi:
Performance measure?? safety, destination, profits, legality, comfort, . . .
Environment?? US streets/freeways, traffic, pedestrians, weather, . . .
Actuators?? steering, accelerator, brake, horn, speaker/display, . . .
Sensors?? video, accelerometers, gauges, engine sensors, keyboard, GPS, . . .
Internet shopping agent
```
Performance measure?? Environment?? Actuators?? Sensors??
```
Internet shopping agent
Performance measure?? price, quality, appropriateness, efficiency
Environment?? current and future WWW sites, vendors, shippers
Actuators?? display to user, follow URL, fill in form
Sensors?? HTML pages (text, graphics, scripts)
Environment types
Environment types
Environment types
Environment types
Environment types
Environment types
Environment types
The environment type largely determines the agent design
The real world is (of course) partially observable, stochastic, sequential, dynamic, continuous, multi-agent
Agent types
Four basic types in order of increasing generality:
– simple reflex agents
– reflex agents with state
– goal-based agents
– utility-based agents
All these can be turned into learning agents
Simple reflex agents
Agent
Environment
Sensors
What the world
is like now
What action I
should do now
Condition−action rules
Actuators
Reflex agents with state
Agent
Environment
Sensors
What action I
should do now
State
How the world evolves
What my actions do
Condition−action rules
Actuators
What the world
is like now
Goal-based agents
Utility-based agents
Learning agents
Performance standard
Agent
Environment
Sensors
Performance
element
changes
knowledge
learning
goals
Problem
generator
feedback
Learning
element
Critic
Actuators
Summary
Agents interact with environments through actuators and sensors
The agent function describes what the agent does in all circumstances
The performance measure evaluates the environment sequence
A perfectly rational agent maximizes expected performance
Agent programs implement (some) agent functions
PEAS descriptions define task environments
Environments are categorized along several dimensions: observable? deterministic? episodic? static? discrete? single-agent?
Several basic agent architectures exist:
reflex, reflex with state, goal-based, utility-based
|
January 29, 2013
Achieve, Inc. 1400 16th Street NW, Suite 510 Washington, D.C. 20036
RE:
Response of Citizens for Objective Public Education, Inc. (COPE) to the January 2013 Draft of National Science Education Standards (the Standards) and the Framework for K-12 Science Education (the Framework) upon which the Standards are based.
Ladies and Gentlemen,
We have reviewed the second draft of the Next Generation Science Standards and find that it is not responsive to any of the comments we provided regarding the first draft. A copy of that response (dated June 1, 2012) is posted on our website at www.COPEinc.org/docs/COPE-Letter-Achieve-Inc-June1-2012.pdf. Achieve's lack of response to the serious Constitutional, scientific, and educational issues raised by our letter is both surprising and puzzling.
To reiterate our main complaints:
1. The Framework and Standards (F&S) address fundamental religious questions. If implemented the F&S will likely indoctrinate children, beginning in Kindergarten, to accept materialistic/atheistic explanations to these religious questions.
2. The F&S do not explain to impressionable children the use, purpose, and effect of using methodological naturalism, which arbitrarily limits explanations in historical (origins) science to materialistic/atheistic causes.
3. The F&S omit evidence that conflicts with the materialistic assumption of methodological naturalism, including evidence that leads to a logical inference of purposeful design in nature.
4. The F&S omit distinctions between historical (origins) science and experimental (operational) science, which are important in assessing the plausibility of competing materialistic and teleological narratives about the origins of the universe and of life.
5. The F&S make no provision to provide students with clear and precise definitions of key terms and phrases necessary to an adequate understanding of the nature of science, the concepts presented, and the methods used for testing hypotheses.
6. The F&S are not age appropriate. For example, throughout grades K-8 the F&S seek to teach answers to religious questions to immature minds that lack the capacity or knowledge to understand or to question the teachings.
7. The Standards, which effectively promote an atheistic religious viewpoint, are designed to cohere in mathematics, English language arts, and social studies. Coherence and progression, while good in some cases, become tools of indoctrination and evangelism that will promote that religious viewpoint.
8. The F&S reflect the consensus of a small group of science and education elites. Input from parents and other stakeholders appears to have been minimal or non-existent. Although the F&S purport to promote diversity among a wide variety of groups and classes of individuals, no provision addresses the religious rights of theistic stakeholders.
9. The F&S support specific political views on certain controversial issues. Legitimate competing viewpoints are minimized or omitted.
These concerns have already been explained in detail in our letter of June 1, 2012. In this letter we will provide a few specific examples of our concerns with respect to selected provisions in the January 2013 draft.
A. Materialism.
The philosophy of materialism (or naturalism) and the assumption of methodological naturalism by NGSS were covered in some detail in our letter of June 1, 2012. Only a couple examples of their use by NGSS will be given here. Crosscutting concept #2 is described as follows:
"Cause and Effect: Mechanism and Prediction. Events have causes, sometimes simple, sometimes multifaceted. Deciphering causal relationships, and the mechanisms by which they are mediated, is a major activity of science and engineering." (Appendix G, p. 13)
In the context of the Standards' prescription of methodological naturalism as the sole legitimate scientific methodology, this concept assumes that all events are the product of unguided material/mechanistic causes. However, there are many events for which the cause is unknown, such as the origin of the universe, the origin of the genetic code, and even the origin of life itself. Much of the evidence relative to causation actually points to nonmaterial/teleological causes as a more plausible explanation.
The assumption that only material causes have "mediated" all events in the natural world is evidenced by a dichotomy used throughout the Standards. Several references are made to the "natural and designed world" and to "natural and designed systems." These are some examples:
"Ask questions based on observations of the natural and/or designed world." (Appendix F, p. 5, grades K-2)
"Cause and effect relationships may be used to predict phenomena in natural and designed systems." (Appendix G, p. 4, 6-8 grade band)
"Cause and effect relationships can be suggested and predicted for complex natural and human designed systems by examining what is known about smaller scale mechanisms within the system." (Appendix G, p. 4, 9-12 grade band)
These examples assume that human-made systems are designed and that "natural" ones are not. This is an opinion, not a scientific fact. An enormous amount of observable evidence contradicts this dichotomy. Evolutionary biologists, in a paper published in the Proceedings of the National Academy of Sciences, acknowledge that "[T]he challenge for evolutionary biologists is to explain how seemingly well designed features of [an] organism, where the fit of function to biological structure and organization often seems superb, is achieved without a sentient Designer." [Adam S. Wilkins, "Between 'design' and 'bricolage':
genetic networks, levels of selection, and adaptive evolution," in PNAS (2007), 1004 (Suppl. 1), supra note 53]
B. The nature of science.
The term science is only defined in a general sense in the Standards:
```
"[S]cience is a way of explaining the natural world." (Appendix H, p. 1) "Science is the pursuit of explanations of the natural world." (Appendix H, p. 2)
```
This definition is extremely misleading and inadequate. It gives the impression that all logical explanations for natural phenomena can be considered, but taken in context with the Standards' prescription of methodological naturalism, in reality only materialistic/mechanistic explanations are allowed.
The Standards list these criteria regarding scientific inquiry:
"Scientific inquiry is characterized by a common set of values that include: logical thinking, precision, open-mindedness, objectivity, skepticism, replicability of results, and honest and ethical reporting of findings." (Appendix H, p. 6) "Scientific explanations are subject to revision and improvement in light of new evidence." (Appendix H, p. 6)
These statements are good guidelines, but by limiting science to materialistic explanations, the Standards violate these criteria. NGSS leads the student to believe that science is open-minded, when in fact the Standards promote the closing of minds with respect to the possibility that the apparent design of living systems is not an illusion.
Also, NGSS never defines the key term "scientific knowledge." The Supreme Court has concluded that "to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method." The Daubert decision explains that true science seeks the most "reliable" explanations rather than explanations that seek to reach a pre-ordained conclusion. The Court pointed out that the focus should be "on principles and methodology, not on the conclusions that they generate." [Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993)] The scientific method is defined by a dictionary frequently used by that Court "as the principles and procedures used in the systematic pursuit of intersubjectively accessible knowledge and involving as necessary conditions the recognition and formulation of a problem, the collection of data through observation and if possible experiment, the formulation of hypotheses, and the testing and confirmation of the hypotheses formulated." [Webster's Third New International Dictionary, 2003] This definition omits any suggestion that scientific knowledge is to be developed through the use of a preconception like methodological naturalism.
C. Evolution.
This core idea from the Standards relates to the origin of the diversity of life:
"Genetic information, like the fossil record, also provides evidence for evolution. DNA sequences vary among species, but there are many overlaps; in fact, the ongoing branching that produces multiple lines of descent can be inferred by comparing the DNA sequences of different organisms. Such information is also derivable from the similarities and differences in amino acid sequences and from anatomical and embryological evidence." (HS-LS4.A)
This description is biological evolution, a materialistic origins narrative. Only evidence that appears to support biological evolution is given, and no evidence is given that critiques the adequacy of the theory. The core idea listed above is particularly misleading, since the evidence cited (fossil record, similarities, embryological development) can also be interpreted as evidence that the apparent design of the system is not an illusion. However (because of the use of methodological naturalism), the evidence that leads to a teleological inference, as explained above in the PNAS article, is omitted.
D. Environmentalism.
This important topic was not addressed in the letter of June 1, 2012. The Framework and Standards seek to imbue students with a particular view regarding the manner in which humans should respond to climate change, sustainability, and other environmental matters. This issue impacts not only religion, but also political and Constitutional views regarding human liberty, the right to property, and the proper role of government. Like origins science, environmental science often reduces to matters of opinion about many controversial issues. The fact that the F&S take a position on these issues seems to be inconsistent with the view of the U.S. Supreme Court that the state should not prescribe what is "orthodox in politics, religion, nationalism or other matters of opinion." [West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943)] The following are specific examples taken from the Standards.
Several core ideas, including those listed below, relate to human interaction with the environment:
"Moreover, anthropogenic changes (induced by human activity) in the environment – including habitat destruction, pollution, introduction of invasive species, overexploitation, and climate change – can disrupt an ecosystem and threaten the survival of some species." (HSLS2-j)
"But human activity is also having adverse impacts on biodiversity through overpopulation, overexploitation, habitat destruction, pollution, introduction of invasive species, and climate change." (HS-LS2-l)
The emphasis in the Standards seems to be on ameliorating the negative effects of human activities – without giving consideration to the negative effects of governmental regulation on human liberty, property rights, and the economy. Also, there needs to be a greater emphasis on positive human effects that result from responsible interactions with the environment. The issue is extraordinarily complex and based in many respects on opinions which frequently change as new data come to light. What seems to be lacking is an objective discussion of competing viewpoints.
Several core ideas, including the ones listed below, deal with the controversial issue of climate change.
"The geological record shows that changes to global and regional climate can be caused by interactions among changes in the sun's energy output or Earth's orbit, tectonic events, ocean circulation, volcanic activity, glaciers, vegetation, and human activities." (HS-ESS2-e,f) "Human activities, such as the release of greenhouse gases from burning fossil fuels, are major factors in the current rise in Earth's mean surface temperature ('global warming')." (MS-ESS3-e)
While there is evidence that global temperatures may be slowly rising, the causes and future effects of "global warming" are still being debated. In particular, students should be aware that there is widespread debate among climate scientists over (a) the extent to which greenhouse gases (GHG) contribute to changes in global temperature, (b) the degree of climate sensitivity to atmospheric carbon dioxide, (c) whether the consequences of GHG warming will be net beneficial or net harmful, and (d) whether the benefits of any attempts to reduce GHG emissions would be worth the costs. The curriculum needs to be balanced and objective on this topic.
Another core idea deals with sustainability:
"The sustainability of human societies and the biodiversity that supports them requires responsible management of natural resources." (HS-ESS3-e)
The general idea of protecting the environment and conserving natural resources is not controversial. However, "sustainability" has become a political movement that emphasizes simpler lifestyles, reduced economic development, global redistribution of wealth, limited use of natural resources in developed countries, "green" (renewable) energy, "smart growth" policies, human population control, and global governance. In short, sustainability is more a term of ideology than of science; it is a word that needs to be defined and used carefully. But more importantly, the issue deals with "politics, religion and other matters of opinion." We question the wisdom of even raising these issues with impressionable young minds. If they are raised, then the state assumes an enormous burden of presenting the issues objectively so that they will have a neutral effect. It is clear to us that NGSS coverage of environmental issues lacks the necessary objectivity.
E. Glossary and definitions.
The January 2013 draft contains a "Glossary of Common Acronyms used by NGSS." A dictionary definition of glossary is a "list of terms in a special subject, field, or area of usage, with accompanying definitions." No definitions are given in the NGSS "Glossary," so the word is used incorrectly. A real glossary is needed so that the meaning of key words is clear. Among the many words and phrases that should be defined are these: science, scientific knowledge, materialism, mechanism, naturalism, methodological naturalism, teleology, design, information, evolution, homology, adaptation, mutation, natural selection, climate change, global warming, ecosystem, and sustainability.
In summary, Achieve has failed to respond to the key concerns we have raised about the proposed NGSS document. We believe the issues we raise must be satisfactorily resolved to ensure that the Framework and Standards are consistent with the mandates of the First Amendment that "government activities [which] touch on the religious sphere ... be secular in purpose, evenhanded in operation, and neutral in primary impact." [Gillette v. United States, 401 U.S. 437, 450 (1971)]
Sincerely yours,
Robert P. Lattimer, Ph.D. President (330) 285-6409
|
International Review of Social Research 2021; 11(1): doi: 10.48154/irsr.2021.0027
Open Access
Research article
Reflections on Bharatanatyam and Neuroscience. A Dance Studies Perspective
SLOKA IYENGAR
The American Museum of Natural History
MANSI THAKKAR
New York, USA
email@example.com
Navrachna University, Vasna Bhayli Road Vadodara, Gujarat, India firstname.lastname@example.org
CHANDANA R. HOSUR
Navrachna University, Vasna Bhayli Road Vadodara, Gujarat, India email@example.com
DRASHTI MEHTA Center for Neural Sci (Ret), NYU New York, USA firstname.lastname@example.org
VIBHAKAR KOTAK
Center for Neural Sci (Ret), NYU New York, USA email@example.com
†
Corresponding author: firstname.lastname@example.org
[Received: March 28, 2021; Accepted: May 10, 2021]
Abstract
Building on recent interest in the convergence of arts and sciences, we propose specific areas of intersection between the disciplines of Bharatanatyam, a classical Indian dance, and neuroscience. We present personal reflections by practitioners of both disciplines and propose that Bharatanatyam can be used to understand and explain brain functioning and that neuroscience can help analyze the dancing Bharatanatyam brain. We explore conceptual areas of convergence between the two fields as well as specific points of connection using language acquisition, rhythm, music, and cognition as examples. We conjecture that Bharatanatyam training and practice support long-term neuronal plasticity in various parts of the brain, including but not limited to the hippocampus, motor, premotor cortex, and the cerebellum. The beginning of the study of the intersection between these disciplines will pave the way for additional allied fields of rich thinking, exploration and potentially, therapy.
Key words: Bharatanatyam, Neuroscience, Subjective Reflections, Dance Studies
An early introduction to the tradition of Bharatanatyam and the discipline it requires presented with many benefits in adulthood
Bharatanatyam has been part of my life for as long as I can remember. After a minimum of 7 years studying this dance form, the student ascends the stage in a formal debut performance called the "Arangetram." The expectation is that this debut performance is the beginning of a dancer's dance-life and that individuals would go on to perfect their skill, keep practicing, performing, and teaching. As a young girl and woman in India, Bharatanatyam was critical in fostering a positive body image and ensuring that I was physically active in a world where many of the sports activities were reserved for boys and men. I also learned how to work with other people, how to observe my gurus when they gave feedback to others, and how to receive feedback. After my Arangetram, I learned the process behind choreography, basics of dance pedagogy, the theoretical aspects of Bharatanatyam, and had the opportunity to watch countless shows. This was an education in seeing the choreography process in class, the preparations backstage, and finally, the actual show. Speaking to the versatility of Bharatanatyam, my colleagues and I presented many non-traditional pieces, one of them being "The Life of Jesus Christ."
When I came to the United States to pursue my graduate work in neuroscience, I realized all the ways dance affected me. Unbeknownst to me, the dance education of my childhood and adolescence was a perfect complement to the neuroscience education I was getting in graduate school. For example, the process of watching performances (which is highly encouraged in Bharatanatyam pedagogy) is rooted in the involvement of mirror neurons. Mirror neurons are located in the premotor cortex, supplementary motor areas, primary somatosensory cortex, and the inferior parietal cortex (Acharya, 2012) and are critical for procedural and observational learning and imitation (Wolf, 2000). Over the years, I encountered numerous scientists who were practitioners of some kind of artistic endeavor as well. Dancing as an adult neuroscientist gave me better insight into the deep knowledge inherent in these fields and their intersection.
The goal of this paper is to present and draw on our personal experiences as practitioners of Bharatanatyam and neuroscience and draw insights that show how Bharatanatyam and neuroscience may have more points of convergences than perhaps meet the eye. Specifically, we highlight subjective experiences from performers who have had first-hand knowledge in the theory and practice of Bharatanatyam and present the basic neuroscience education supporting these views.
However, there are several points we wish to clarify at the offset. We do not aim to provide an exhaustive report on the convergence of Bharatanatyam and neuroscience as it is outside the scope of this publication. While we provide several citations, we admittedly do not cite every author and group that has provided value to the field. Not providing citations is here an acknowledgement that we are skimming the surface of a huge field and body of work. Many of the topics we present here about Bharatanatyam (e.g., rhythm, musicality) are aspects of many other kinds and genres of dance (Brown, 2008). However, we propose that the narrative, story-telling, and devotional aspects of Indian classical dance forms such as Bharatanatyam may have specific and unique neural correlates. Again, the aim of this paper is not to provide a comparative overview on the different kinds of dance forms or the brain structures involved that are similar and dissimilar. Bharatanatyam was undoubtedly affected by the cultural upheavals over the centuries in India; hence, while we realize the involvement of culture in Bharatanatyam, our aim is not to analyze the role of cultural context in Bharatanatyam practice and performance. Many other experts have contributed to this line of thinking (Kumar, 2011). While in the future, targeted experiments to understand how the brain enables each aspect of Bharatanatyam and how Bharatanatyam affects the brain of the performer and the audience, we do not present any experimental data. Despite these caveats, this paper is one of the first that meshes together two seemingly disparate fields cohesively, gives proposals for future studies both empirical and experimental, speaks to the universal nature of dance and science, and finally, provides personal reflections in the background of theoretical support and underpinning.
We propose that thinking about the intersection of Bharatanatyam and neuroscience could be pertinent for a variety of fields: making a case for arts and science (specifically, neuroscience) education in schools and colleges and the idea that embracing the arts can enable a more complete and holistic society. Finally, we suggest that Bharatanatyam can help us better understand the complex functioning of the brain, and the study of neuroscience can help understand why and how Bharatanatyam has the effects it does on peoples, cultures, and societies. Our hope is that this publication supports future work into this rich field of thinking, exploration, and ideally, some aspect of behavioral therapy.
Bharatanatyam is one of the oldest classical Indian dance forms
Bharatanatyam originated in the temples of South India more than 2,000 years ago and consists of many elements that bear resemblance to the sculptures and inscriptions found in temples (Rajkumar, 2020). The Natya Shastra is a detailed handbook that was written between the 5 th century BCE and the 8 th century CE (Lidova, 2014), and covers various aspects of the dramatic and performing arts including but not limited to music, rhythm, aesthetics, theater, and movement. This treatise is still used to guide students of Bharatanatyam and deeply influences the way the dance form is practiced and performed. For example, many aspects related to staging, costuming, and makeup were put forward in the Natya Shastra and are still used today (Lidova, 2014). The political and cultural upheaval of the 17 th century in India affected Bharatanatyam as well, and the dance form as it is viewed and practiced now in mainstream circles has undergone significant changes as compared to its initial version (Rajkumar, 2020).
A fascinating aspect of dance is the dichotomy between stillness and movement and, pertinent to this paper, how the brain perceives this difference appropriately to create and complete the aesthetic picture. Bharatanatyam consists of intricate variations in facial expressions, hand mudras and physical gestures. These movements and gestures are accompanied by classical based Carnatic vocal singing and ascending and descending rhythms played on a percussive instrument such as the mridgangam and/or tabla. Bharatanatyam can be thought as a vocabulary of hand, feet movements, gestures, and emotion that are interspersed with music and rhythm. In line with the musicality of Bharatanatyam, dancers are also encouraged to learn music and music theory. With an emphasis on communicating bhava (the state of mind leading to feeling, emotion, or mood), rasa (the aesthetic flavor that results from bhava) and storytelling, I think of Bharatanatyam as a language to communicate a story or an abstract idea to the audience.
The neurosciences are a collection of related disciplines, all with the aim of understanding how the central and peripheral nervous systems function in pathology and physiology
The last several decades have seen an intense interest in the neurosciences, thanks to the variety of tools and techniques available to study various aspects of the brain. The neurosciences are a truly unique field and aim to explain the various functions of the brain and, by extension, the body. A neuroscientist can study one or more avenues including neuroanatomy; neurophysiology; molecular and cellular neurobiology; and pathology of the central and peripheral nervous system. In the last several years, many initiatives (Allen Institute for Brain Science & The BRAIN Initiative 2012) have been launched to understand how the brain makes us thinking, feeling, and sentient creatures. While the study of neuroscience is rich and rewarding, so is its dissemination. Given the breadth of the discipline, there are many unique ways to explain neuroscience as well. Acting on this insight, I have composed several pieces that use Bharatanatyam to explain neuroscience: in one, I depict the movement of ions through the neuronal membrane during an action potential, and in another, I describe the process of neuronal migration. Since action potentials are the output of excitatory and inhibitory neurons in the brain and hence the mechanism of all that we do, think, and feel, it is incredibly exciting to me to think that there is a tangible, performative link between my Bharatanatyam and neuroscience!
The myriad of physical movements and mental acuity in Bharatanatyam necessitate sensorimotor coordination, neurotransmitters and modulator mechanisms and engages learning and memory constantly and in real-time as well as fine motor performance in conjunction with continuous sensory feedback.
There are many conceptual and philosophical points of intersection between Bharatanatyam and neuroscience
Seemingly disparate at first glance, we propose that neuroscience and Bharatanatyam have several points of conceptual intersection. The first is the wide appeal of the disciplines. Although having originated in South India, Bharatanatyam is the most popular form of Indian classical dance currently with practitioners residing in almost every part of the world. In an analogous fashion, the study of neuroscience is conducted all over the world, and scientists of different sub-disciplines come together to share findings during scientific conferences.
Both neuroscience and Bharatanatyam build on a long lineage of work. In Bharatanatyam, the guru or teacher (and the guru's guru, in effect) along with books like the Natya Shastra guide students in their dance journey. This academic genealogy is found in the neurosciences as well, where students study under a mentor for several years before setting up their independent research practice. Both disciplines build upon an already-existing body of work to add to the knowledge of the field. Additionally, the role of teaching and giving back through teaching is common in both neuroscience and Bharatanatyam. One might wonder how any innovation is possible when there is a body of work that is literally centuries old. In fact, when I was in college, reading the prescribed textbooks gave me a distinct impression that everything that could be discovered scientifically, already had been. It was only during my graduate work that I realized how much there is still to be explored. Similarly, while Bharatanatyam is admittedly an ancient dance form, there are practitioners all over the world using this art form to tell diverse, contemporary stories. While the subject of creativity is still not fully understood and involves (among other regions) a set of cortical structures called the default mode network (Beaty, 2020), we believe that the topic of creativity and innovation in Bharatanatyam and neuroscience warrants further attention. Specifically, there may be similarities in brain activity when conceptualizing a novel experiment or hypothesis vs. choreographing a set of movements or developing an idea to depict through dance.
We believe that both Bharatanatyam and neuroscience are ways of understanding the truth around us and give us a way to understand the truth that may be ever-changing and dependent on context. An example of the contextual nature of neuroscience is the example of neurogenesis. While the thinking for a long time was that the adult human brain cannot produce new neurons (Kumar, 2019), newer techniques and studies have proved otherwise (Kumar, 2019). The complete details surrounding adult neurogenesis are not known, but there is still plenty of room for research and investigation (Kumar, 2019). Speaking to the conceptual convergence, Bharatanatyam could provide an alternative way of thinking of the brain, perhaps in the form of a securely and carefully choreographed ensemble? Can we think of neuronal assemblies as working together like dancers would in a performance?
The practice of Bharatanatyam and neuroscience requires similar skills and attributes (SI)
Some attributes that are common to the study of Bharatanatyam and neuroscience are perseverance and resilience, both of which, of course, are difficult to quantify. I was unable to continue dance during graduate school and had a break of almost seven years. While I had concerns about returning to Bharatanatyam after such a long time, it seemed that my body remembered many, if not most of the adavus (steps) and jatis (combinations of steps). The long-term effects of Bharatanatyam on the brain are not fully studied, but based on studies on other dance forms (Rehfeld, 2017), we can expect long-term, synaptic reorganization including strengthening in several parts of the brain as a result of the prolonged, intense, and consistent training program. These changes in neuronal structure and function are perhaps even more pronounced in the developing brain (D'Souza, 2018), so the specific role of Bharatanatyam during child development needs to be studied systematically owing to the critical stages of learning via sensory perceptions during the first decade after birth.
Language acquisition is complicated by itself, and perhaps even more so when learning and performing a Bharatanatyam piece (SI)
I recently started re-taking Sanskrit language lessons as a way to supplement my dance education, and I was struck by the musicality of the language and the structure inherent in its grammar. However, when I dance to a Sanskrit poem, I am able to (hopefully) depict its beauty and nuance without knowing the grammatical structure of the verse. Thinking of language acquisition, it is not fully known how the brain de-emphasizes grammar while listening to the poem for dance, vs. appreciates its order and structure when learning it as a formal language.
As a dance form that originated in South India, many compositions that are used for the traditional dance pieces are written in South Indian languages e.g., Tamil, Telegu, and Kannada. In consequence, the study of Bharatanatyam requires the dancer to acquire at least a rudimentary understanding of a few different languages. In addition, given the poetic structure of the pieces we dance to, an aesthetic understanding and appreciation of the text is critical. Learning what and how to emote to a certain song or poetry necessitates learning the language and the vocabulary of the written word to some level. Language acquisition is a complex process; imaging studies have parsed out areas in the brain (called the "Wernicke's area") and its sub-structures that are critical for language reception, word recognition, associating words with other information, and production of language (Ardilla, 2016). An additional structure called the insula plays a role in coordinating all these language systems (id.). The brain also puts together additional linguistic factors such as syntax, sentence comprehension, semantics, and phonology to help bring a nuanced and complete understanding of language (Sakai, 2005). The neuronal mechanisms for interpreting language set to music for dance are not understood; however, we can hypothesize the role of cortical plasticity, not dissimilar to what has been observed in response to the acquisition of a second language (id.).
In many pieces, the dancer has the job of interpreting not only the literal meaning, the imagery that it carries, and the derived, expanded meaning, but the musicality as well. In Bharatanatyam, the meaning is highlighted in the context of "sthayi bhava," the stable, pervading emotion and the "sancari bhava" or the fleeting emotions that appear in quick succession. I wonder how the brain interprets language and its nuances to emote such delicate and refined expressions. The hand gestures in Bharatanatyam are a catalog of vocabulary not unlike words. How might semiotics (the study of signs) apply to Bharatanatyam and what are the brain structures involved? The cultural nature of semiotics and the specificity (Yu, 2013) align with the gestures used in Bharatanatyam in that they have cultural underpinnings. Since using signs is an indirect form of language that does not require auditory cues, we would expect the visual areas to be involved. To this point, since music is such an important part of the dance form, an additional question that can be explored is if different structures of the brain are involved when a piece of text is read as compared to when it is set to music. Additionally, what is happening in the brain when dancers are using their bodies to depict a certain poem's message or narrative? The storytelling in Bharatanatyam does not seem to be completely tied to a verbal element because it is possible to understand the narrative to some extent without knowing the language. Could Bharatanatyam give us clues to explore linguistic questions from those of pure narration? The neurological correlates of movement set to a poem would involve motor and premotor structures; however, the exact nature of this activation is not known and could be further explored.
The study of music and Bharatanatyam are closely linked (CRH)
I started perusing lessons in Carnatic music at the age of ten. Initially it was difficult, but I was raised in a musical environment, which helped me acquire skills such as shruti shuddham (pitch perfection), taala (rhythm or beat), reading notation in swaras (notes), understanding that each beat has sense of laya (pace or speed of rhythm) to it. My education included the teaching that in order to sing for any composition, a basic understanding of the language was necessary to ensure correct pronunciation and intonation. My music must faithfully convey the composer's meaning and underlying sentiments. Repetition is key - as a student I was repeatedly made to sing the phrases so as to memorize them within a short time span. What helped the memorization was that with the intonation of every taala, its jaathi (melodic classification) and the raga, I would create a picture of the relationship between the musical element and the emotion I felt. Listening to other musicians was an important part of my training as well. The tremendous ability that music has to affect and manipulate emotions and the brain is undeniable, and yet largely inexplicable. Now that I am a student of neuroscience, I think about the link between melody and mood. Also, what exact effects did grow up in a musical household have on my brain? I grew up learning that musicians are very good at math, probably because all these swara and taala patterns involve calculation and manipulation.
Carnatic music consists of two main elements: raga, the melodic-scalic component of the music, and taaḷa, the rhythmic cycle. These two come together to create bhava. I sing for Bharatanatyam dancers, and just like dancers, musicians when on stage have to be highly attentive and sharp listeners to observe and analyze the dynamics that the music contains. Carnatic music and Bharatanatyam are closely linked, and I wonder if the rasa in Bharatanatyam aligns in the brain to the ragas of the music in terms of what is being affected in the brain. While typically many aspects of Bharatanatyam are scripted, there is a role of improvisation in Carnatic music, and I wonder what brain structures and processes help live improvisation.
I am also intensely curious about the role of passive listening. It is known that many parts of the brain are activated by passive listening of melody rhythmic sequences. In a study where nonmusicians passively listened to musical rhythms, activation was observed in several areas in the premotor cortex and the cerebellum (Sharma,2018), the latter, we would expect to be important to coordinate movement with rhythm. The precise nature of brain activation when listening to Carnatic music by practitioners and non-practitioners is not known and could be further investigated.
The melodic framework in Carnatic music has been developed in the structure of "ragas." There are 72 melakartha ragas (or parent ragas) that are formed by different types of swara sthayis or note pitches. These main ragas give rise to Janaka ragas, which means that the possibility of melody in Carnatic music is endless! Students of Carnatic music are taught the four components of raga: nada (the sound that is audible to human ears), swara, scale (ascending-aarohanam and descendingavarohanam), and gamaka (vocal articulation or instrumental manipulation). I wonder how, in a live show, the singer's brain keeps all these aspects in mind, and at the same time, pays attention to the dancer to improvise if necessary? Perhaps this happens at a sub-conscious level. What experimental paradigm might allow us to investigate and answer these questions? Singing and listening to music gives me so much pleasure, and I would love to explore the neuronal correlates of pleasure and surprise when listening to certain melodies and the role of culture at the same time (Libeto, 2020). I can hypothesize that neurotransmitters such as oxytocin, dopamine as well serotonin have a role to play in the mood-enhancing as well as self-rewarding effects of music (Sutoo, 2004).
Given the intense practice that Bharatanatyam entails, there are many long-lasting effects on cognition (MT and DM)
While most students start learning Bharatanatyam around age five or so, I started late, at around twelve years of age. It seemed that other students in my class were more flexible, whereas it took me a year to internalize the basic position of Bharatanatyam called Araimandi, a position that requires balance of midline posture and core muscles. As a student of neuroscience, I now know the role of the cerebellum in maintaining this difficult posture. The symmetry of steps is maintained by sensory feedback which the brain receives from muscles and joints of our limbs. Postures and symmetry of steps develop over time, and I can imagine that in advanced practitioners of Bharatanatyam, the corticospinal tract must enable voluntary movements, the cerebellum helps learn and coordinate new movements and the basal ganglia helps maintain body posture while in movement.
As I passed through several years of studying Bharatanatyam, the level of difficulty also increased, and the cognitive capability of my brain was challenged. Bharatanatyam has a set repertoire called "margam," which consists of pieces that are progressively more challenging in terms of skill of executing rhythm, emotions, and pure stamina. The dance form has three aspects: nritta ("pure" percussive pieces), nritya (a combination of percussion and emotion), and natya (dramaturgy). I felt that understanding the theory behind these aspects gave me a sound basis when I tried to learn new items. There are so many things to keep in mind when dancing – remembering the adavu, its pattern and sequence, the taala, bhava, facial expressions, and ultimately, being able to communicate all this to an audience. I wonder what kinds of attentional process allows the brain to manage all this so effectively, and what happens in the brains of the audience members who are watching me. Do their brains capture each aspect separately, or do they get the holistic picture that allows them to appreciate the dance and the story?
Many studies that have investigated the neurological correlates of dance suggest that longterm dance training changes both gray and white matter structures (Karpati, 2015); however, the nature of these adaptations in Bharatanatyam is not known. I wonder also about the changes in the brain in an individual who started learning young as compared to those who may have started later, or in adulthood. Also, what is the exact nature of long-term changes in cognition and short as well as long-term plasticity? I can hypothesize that the hippocampus and the para-hippocampal regions must be involved, as these are the structure where memories are encoded, stored and recalled, but beyond this, systematic studies are necessary.
I am also curious about the interplay between cognition and emotion (Erickson,2003). As a dance form where communicating emotion is key, what brain structures may be involved in remembering a feeling or mood that is evoked by the music, and then being able to perform it on stage? My training in Bharatanatyam makes the learning of other dance styles comparatively easy; I practice other dance forms as well and have found the classical training of Bharatanatyam uniquely helpful. Might there be overlapping areas of cognition and sensensorimotor synchronization between the dance forms? Another aspect is the effect of long-term Bharatanatyam training: one study (Burzynska, 2017) looked at dancers and non-dancers, and examined a variety of imaging parameters, cognitive assessment, and objective measures of dance skill. They found changes in connectivity in the Action Observation Network (AON) in dancers as compared to non-dancers. The AON consists of structures in the occipito-temporal, parietal, and premotor cortex of the brain and is critical for the visual interpretation of actions (Urghen, 2020). We hypothesize that trained Bharatanatyam dancers will show many of the same changes in the AON; these findings will potentially form the case for using Bharatanatyam as a source of therapy, reward, and well-being. These changes in the AON must be long-lived; having taken a break from dance for two years, I found that it was relatively easy to get back into the routine of dancing again, suggesting that storage of Bharatanatyam information in the brain must have facilitated such comfort. Another aspect I have always wondered about is how thinking about dance is different, neurologically speaking, from the act of dancing itself. I know that many athletes prepare by thinking of the game and what it entails, and I have found that works for me in Bharatanatyam as well. When I am thinking of dancing, I would expect my motor cortex to be activated, though at a threshold lower than what is necessary to generate movement, suggesting altered properties of neurons. Could Bharatanatyam be used as a therapy to rehabilitate people after major disorders like a stroke or memory loss?
Conclusions
In this paper, by interspersing our personal experiences of learning and practicing Bharatanatyam and neuroscience, we propose that the practice and performance of Bharatanatyam is associated with unique activation of discrete areas of the brain and the input-output of these neurons into a well-defined performance. While the disciplines are disparate in many ways, we believe that they both provide insights of understanding and perceiving the world around us. Pursuing this convergence will lead to enrichment of culture and the acceptance of different forms of wisdom: rational vs. empirical; scientific vs. artistic. A systematic study of the innovation inherent in two seemingly disparate disciplines will help us better understand the process of creativity. We can also envision employing Bharatanatyam in neurological and psychiatric disorders for stress relief as a potential de-stressor such as in the present crisis, and for using Bharatanatyam and other dance forms in furthering education.
Acknowledgements
We would like to acknowledge Michael Tanksley and Carol Schachter for their assistance in proofreading and editing this paper.
Conflicts of interest
This manuscript has not been presented previously in the form of a publication or conference. We have not received any financial support to develop this paper and state no conflicts of interests. We hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the journal, in the event that such work is published by the journal.
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Why Theologians are Interested in Literature: Theological-Literary Hermeneutics in the Works of Guardini, von Balthasar, Tillich and Kuschel
Georg Langenhorst
What makes literature interesting for theologians and why does an academically-trained systematic theologian need poetry? This essay will suggest four answers and four positions from a German perspective in order to throw light on the relationship between 'theology' and 'literature'. The first answer to these questions is that the poetic word 'always serves to make an experience or a thing – or perhaps human destiny – more meaningful and more clear' (Guardini, Elegies 303). More specifically, particularly in a poem, a reader takes a new stance towards existence, 'deeper than an everyday stance and more alive than a philosopher's stance' because 'words which offer a deeper understanding of the world have more power than those of custom and are more original than the speech of an intellectual' (Guardini, Sprache 154). 1
The writer of these lines, Romano Guardini (1885–1968), is considered to be one of the greatest theological interpreters of literature of the twentieth century. From the outset he combined his vocation as a theologian with his interest in and love of literature, the arts and philosophy. In his childhood he was an avid reader. If he could have chosen his career freely and independently of his family's wishes and the contemporary socio-political context, he would have 'probably studied philology and literature', as he says in his autobiographical writings (Berichte, 65).
What role, then, did poetry actually play in Guardini's life and thinking? What is the significance of Guardini's interpretations of literary works for theology or more specifically theology and literature? To start with, let us look at the situation that Guardini encountered when he first started thinking about the relationship between the two. How did contemporary theologians deal with poetry at that time? More precisely, was any hermeneutical significance granted to literature by theology? Obviously, theologians have always read fiction and poetry in their leisure time. But did they normally integrate these private literary experiences with their theological thinking and writing? 2
Theology and Literature in the Pre-modern Period
To talk about 'religion' on the one hand and 'literature' on the other as two distinct endevours has not been the norm in European thought. Notwithstanding their differences, in the premodern period these two areas, it can be claimed, belonged together. The emancipation of the arts from Christianity only took place in the seventeenth century. It then quickly took hold. The idea that the arts in general and literature in particular were 'autonomous' prevailed and became widely accepted on the account of the secularisation of culture at the beginning of the nineteenth century.
Their autonomy did not exclude connections between them. On the contrary, it was only after the coexistence between the Christian churches and the production of literature had been broken, that independent, creative and challenging literary works emerged and looked afresh and impartially at the Christian tradition. Prior to this separation, an important aspect of literature had been that of embellishing, illustrating and affirming religious doctrines. The tension between theology and literature today has been rewarding for both. Theology is able to reassess itself and develop by considering the reflections and provocations to be found in literature. Literature, on the other hand, can grow artistically through its continual involvement with traditional religions, religious experience and theological contemplation.
In German-speaking countries the first theological reflections on this new relationship between theology and literature occurred when the term 'Christian literature' was used in contrast to 'secular literature', a distinction which hitherto had not been invoked. The expression was first applied by the Romantic August Wilhelm Schlegel (1767–1845), who, together with his contemporaries Joseph Freiherr von Eichendorff, Clemens Brentano and Annette von Droste-Hülshoff, attempted to heal the breach between literature and religion. The expression 'Christian literature' was a direct response to secularisation. However, in the following decades the term and concept 'Christian literature' remained only loosely defined.
To this day, the best definition of the expression is that of Gisbert Kranz, the most influential advocate of 'Christian literature'. In 1961, in his Christliche Literatur in der Gegenwart ['Christian Literature Today'], he stated that he was merely presenting 'works of world literature' which 'display Christianity from a faithful Christian perspective' (7), without opposition or objections to this definition. In the years that followed, Kranz proposed a more precise understanding in his monumental Lexikon der ChristlichenWeltliteratur ['Encyclopaedia of Christian World Literature']: 'Christian literature is a type of literature – no matter the genre or subject – which has been produced with a Christian understanding of God, human kind and the world around us. As a result, it cannot be adequately interpreted without such a Christian understanding' (4).
In the 1950s and 1960s attempts were made to reinvigorate the concept of 'Christian Literature'. But why were academics interested in this term? What motivation or interest in it can be discerned today? It is revealing that this debate concentrated mainly on contemporary writers who were part of the renouveau catholique, an international movement of writers which promoted a Catholic view of the world and tried to revive Catholic aesthetics. The word re-nouveau indicated the conservative nature of the movement. Though it is hazardous to generalize, given the wide range of authors, styles, intentions and literary texts that it included, the movement as a whole refused to come to terms with modernity. As a reaction to the crises of modernity and their repercussions, it promulgated a return to a safe, religious, Christian, denominational perception of the world as a closed reality.
In particular, the use of both the literary forms and the content of the pre-modern era, adherence to a rigid, pre-secular world view and the refusal to accept modern developments and changes, marked the first wave of academic discourse in the field of 'theology and literature' in Germany. This was exactly the way in which theology considered poetry and the climate that Guardini encountered when he published his interpretation of literature. So what did Guardini learn from his predecessors and what was novel about his contribution?
Poets as Prophets of our Time: Romano Guardini
Awe and surprise are the natural reactions to the scale and scope of Guardini's interpretations. Apart from his shorter studies of Dante, Goethe, Shakespeare, Hopkins, Wilhelm Raabe and Mörike, he published three monographs on major literary figures: Dostoyevsky (1932), Hölderlin (1939) and Rilke (1953). Let us look more closely at what inspired his interest in literature, an interest that went far beyond common enthusiasm for poetry. As he writes in his introductory remarks to his interpretation of Wilhelm Raabe's 'Stopfkuchen', Guardini did not 'so much want to talk in general terms about the book as really to interpret it' (Sprache 87). What does he mean by 'really interpret it'? What does it mean for him as a theologian and philosopher? Why was he so fascinated by these three particular authors? How did he interpret the fictitious worlds of these writers to his readers?
Guardini's passionate involvement with literature was inspired by the philosopher Max Scheler (1874–1928). When Guardini was appointed to the chair of 'Philosophy of Religion and Catholic Weltanschaung' in Berlin, one that had been created especially for him, he did not know at the start exactly how to structure his programme of study. During what was for Guardini a 'very momentous talk', Scheler, who was eleven years his senior, recommended, as he later noted, the following: 'You have to make real the content of the word Weltanschaung: to contemplate the world, things, human kind and their works with the eyes – and here lies your personal expertise – of a responsible Christian. Then you have to talk about all the things you see in an academic form of discourse'. Scheler also gave him additional advice: 'For example, examine Dostoyevsky's texts. Then discuss them from your Christian perspective in order to shed light on the text and its contextual starting-point' (Stationen 19–20). Guardini followed this advice and would always remember his colleague with gratitude.
Scheler's recommendations were, of course, only an external cause of Guardini's interest in the interpretation of literature. Two inner convictions defined his study of literature. In his momentous work Das Ende der Neuzeit ['The End of the Modern World'], published in 1950, he formulated a fundamental critique of rational technological expediency in modernity on which he blamed the catastrophes of the world wars and the Nazi regime. All Guardini's works emphasise the intellectual potential of Christianity to act as a true spiritual guideline in the post-war era. It was by referring to the great poetic-religious thinkers in history that he developed this spiritual concept. In this context, it is essential to know what kind of Christianity he wanted to strengthen as a spiritual counter-weight. It was neither the rigid system of pre-modern theology, which he linked to the concept of Neo-Scholasticism, nor the hierarchical, inflexible forms of the current regime in the Roman Catholic Church, with its fossilized liturgical routine. For Guardini, returning to pre-modern times was not an option. He was convinced that Christianity had to prove its worth and find a new form and conception of itself appropriate to modernity.
To manifest such a living spirituality, one that would push against current boundaries, and to demonstrate its profound impact, Guardini needed witnesses. For that reason he looked to the writings of the great authors, in both philosophy and literature. Guardini, who was both a theologian and a philosopher, had his own 'private canon of poetry' firmly rooted in the 'tradition of the seers and the prophets' (Kuschel, Modernismuskrise 174). According to Karl-Josef Kuschel, the texts which Guardini interpreted stood as an 'intellectual and spiritual counterbalance' to, on the one hand, 'the Zeitgeist of rational, technological expediency' and 'a narrow ecclesiastical understanding of revelation on the other' (Modernismuskrise 174).
For this reason, it is hardly surprising that Guardini did not turn to explicitly Christian thinkers who did no more than reemphasize traditional beliefs. Instead he grouped his chosen authors into a category called 'seers'. For him, they all have the gift of acting as visionary prophets. This is the essential trait which made his authors religious witnesses: the ability to see and express truth more clear-sightedly, profoundly and sharply. Guardini's way of introducing Hölderlin will serve as an example. In contrast with other poets' work, Hölderlin's does not spring from 'the strength of an author which can be determined by authenticity of experience, a clarity of the eye, a power of style or exactness'. Instead, for Guardini the distinctive feature of Hölderlin was 'his vision and restlessness as a seer'. The origin of his works 'lies in a more inward and higher order', with the result that it is 'in the service of a calling' that cannot be ignored without 'resisting a power which transcends the being and desire of the individual' (Guardini, Hölderlin 11–12). Consequently, in Hölderlin the reader not only encountered 'the voice of a brilliant human being' but also experienced the divine voice.
As Much Contact as Possible with the Actual Texts
Guardini's comments on Hölderlin's style are typical of the authors and texts that he chose to interpret. Dostoyevsky's novels capture his interest because they offer the possibility of demonstrating the religious sentiments of outstanding characters in literature. These
characters were 'exposed to their fate and to divine powers in a particular way' (Guardini, Der Mensch 11). Writers' visionary powers help to pave the way to a deeper understanding of the human soul. Guardini was interested in seekers, disturbed and disturbing visionaries, or people torn between divergent ideals and styles of life. To him they were kindred spirits standing as witnesses to 'the end of the modern era'. It was in relation to these authors and their texts that a new spirituality, a new firmly grounded view of the world, had to prove its worth.
This was why Guardini focused on Rilke, who, in his words, was 'the most sensitive and subtle German poet of modern times' (Elegies 9). With no other poet's work did Guardini struggle so much as with Rilke's; no other poet both fascinated and repulsed him as much. For him, Rilke – like Hölderlin – had 'a mediating disposition' (Elegies 9) because he saw himself 'in the situation of a seer' and was 'convinced that he was the bearer of a message which had been "dictated" to him from a source which could only be described as "religious"' (Elegies 13). According to Guardini, Rilke saw himself as 'a prophet – an inspired vessel filled with the divine voice which spoke through him. Rilke himself had to listen to his own words and "penetrate" them gradually' (Guardini, Elegies14). His impulse to provoke led him to present these religious elements in ways that were 'in deliberate contrast' to the Christian worldview (Guardini, Elegies 14).
Romano Guardini was in contact with numerous writers of his time. He was friends with many, often inviting them to his lectures, and exchanged letters and read their works. Remarkably, however, at no point did he offer public interpretations of works published in his own day. This was a significant and probably deliberate policy. Literary criticism entailed analysing the complete oeuvre of an author. Nor did he want to taint his interpretations with personal acquaintance or with ties of friendship. It was not writers as witnesses to the present but a theological conception of literary texts and their spiritual-intellectual worlds that absorbed him.
Guardini's emphasis on a personal appropriation and spiritual interpretation of literary texts is evident in the way that he approached them. He describes his technique in the preface to his book on Hölderlin: 'I tried to get into close contact with the texts themselves' (Hölderlin 17). Generally, he did not focus on an academic analysis of a literary work but deliberately preferred an individual style of reading guided by 'philosophical intentions' (Hölderlin 23). He said, almost jokingly, that he did not read secondary sources, not even important ones. 'I intentionally abstained from the expertise of each different discipline…I rather preferred to follow my instincts' (Berichte 47). He deliberately limited the secondary literature he read in advance 'to a minimum which was essential in order to be informed about the main facts' (Hölderlin 17). In his autobiographical notes he claims to have developed a method by which he could 'gain an understanding – on the basis of an exact interpretation of the text – of the whole thoughts and personality' and thereby 'extract the Christian content from all the dilutions and blendings' brought on by 'modern relativism' (Berichte 46).
Guardini's method of a close reading of original texts and his struggle with message, meaning and truth are intriguing but they came at a cost. Though still worth reading, his interpretations lack academic respectability. Nevertheless, there can be no doubt that his interpretations are important milestones on the road of the theological reception of literature in that he incorporated literature within a theological-spiritual framework. Guardini said in retrospect that he had aimed to focus on 'an encounter', 'a look from one discipline to another', an approach which ultimately 'wants to be neither literary studies nor theology' (Stationen 299–300). In this he underestimated how much of a theologian he remained when interpreting literature. Calling poets 'seers' and regarding works of poetry as witnesses in the service of a divine calling or even as a form of revelation resulted in a radically theological interpretation of literature.
Subsequent initiatives promoting dialogue between literature and theology criticised his approach and asked whether Guardini had neglected the autonomy of aesthetic objects with respect to theology. Theodore Ziolkowski – to take only one example – praised Guardini's literary interpretations because of their 'sensible combination of careful textual analysis and Christian hermeneutics' (115), but proved, through an interpretation of Mörike, that Guardini forced 'his own belief and his own expectations at a key position in the text' (119) and that he found religious elements where he wanted. Today this criticism seems justified.
Let us now compare Guardini's ways of interpreting literature to those of another great Catholic twentieth-century interpreter of literature, the Swiss theologian Hans Urs von Balthasar (1905–1988), who as a student attended a series of lectures on Kierkegaard given by Guardini in Berlin. 'There was only one man in his right mind', he wrote about his 'horrid' time in Berlin, 'Romano Guardini' (quoted in Lochbrunner, Hans Urs von Balthasar 277). In 1970 von Balthasar published the first comprehensive monograph, written with great respect, on his teacher Guardini who was twenty years his senior).
Withdrawal into the Unity of Pre-modernity: Hans Urs von Balthasar.
During his lifetime, von Balthasar would call himself 'a scholar of German literature by training' (Geist und Feuer 73). Before entering the Society of Jesus in 1929 and completing a degree in theology, he had completed a PhD in philology. In1937–39 he published a threevolume work, Die Apokalypse der deutschen Seele, ['The Apocalypse of the German Soul'], a wide-ranging history of modern German intellectual life, which included the main findings of his PhD thesis. While Guardini's biographical-intellectual path had led him from theology to literature, von Balthasar's path was the reverse, 'from literature to theology' (Lochbrunner, 'Romano Guardini' 169).
Like Guardini, von Balthasar was aware of the intellectual changes taking place in his time and sought a new synthesis in the history of ideas. Long before most of his contemporaries, he had seen clearly the renewals and awakenings and the abysses of modernity. In contrast to later proponents of the collective 'Christian movement', von Balthasar faced contemporary challenges with equanimity. First, he did not view the theology of his time as a promising starting-point that led to the resolution of contemporary issues. On the contrary, the discipline bored him. In search of inspiration, he stumbled upon the much broader field of literature and this would become the starting point for his confrontation with modernity. In his book about Bernanos, published in 1954, von Balthasar openly admits: 'In the great Catholic literary figures we find more originality and vibrancy of thought – an intellectual life thriving superbly in a free and open landscape – than we do in the somewhat broken-winded theology of our time' (Bernanos, 17).
Von Balthasar turned to modernity because he was looking for an 'intellectual life', but, surprisingly, he became taken up almost exclusively with Christian literature. In contrast to Guardini, he drew mainly upon contemporary literature, though not to the exclusion of Goethe, Rilke and Dostoyevsky. He published monographs on Paul Claudel, Charles Péguy, Georges Bernanos and Gerard Manley Hopkins. In his roles as translator, editor and interpreter, he continued to serve as an important guide to the renouveau catholique for the German-speaking world today (Kapp 397–412). In the field of literature, he became particularly interested in one author, Reinhold Schneider.
Von Balthasar's initial trajectory was similar to that of Guardini. Even though he was familiar with the various forms of literary criticism, he interpreted Schneider's work exclusively by examining its content and its historical-intellectual context. In contrast to most interpretations of 'Christian literature', he openly stated that he was leaving aside 'biographical or aesthetic evaluation' (Reinhold Schneider 11). Literature was to be 'used to examine historical problems without any special regard for its aesthetic qualities' (Geschichte des eschatalogischen Problems 9). Since he focused narrowly on presenting a standardised picture of a life and contemporary world-view of 'Christian existence', he did not need to engage in either biographical or philological-aesthetic discussion. Spirituality, testimony, recurring images and figures, and typology were the important elements. He remained unconcerned with literary form, the author or his or her background.
The German scholar Sabine Haupt accurately called this method a variant of a 'metaphysically radical form of text-interpretation based on the history of ideas' (41). She recognised von Balthasar's hermeneutics as a 'general de-historicisation and derationalisation of the history of ideas' worked out with a 'decidedly projective technique' ["grundsätzliche Enthistorisierung und Entrationalisierung der Geistesgeschichte" mithilfe eines "dezidiert projektiven Verfahrens"] (52). Von Balthasar repeatedly practised a 'decontextualisation' (Haupt 55) of quotations to blur the original meanings and to align them with his own ideas. 3 As a consequence, he generally 'flattens and distorts' the 'poetic potential' of the text because he ignored the text's intrinsic aesthetic values (Haupt 57).
A central point should be noted, namely, that von Balthasar's hermeneutics serve a particular agenda in terms of his general concept of theology. Although he recognised the changes introduced by modernity more clear-sightedly than many, in his confrontations with modernity, he insisted on the cohesion of content and an aesthetics that belong to a premodern age. This perspective continues to be von Balthasar's great appeal today: the creation of an impressive theological-aesthetic system of thought which explores comprehensively the tradition of the history of ideas, but which leads back to the cohesiveness of a pre-modern worldview. In particular, the transcendental-aesthetic works Herrlichkeit (The Glory of the Lord: A Theological Aesthetics) of 1961–69 and Theodramatik (Theo-Drama) – a corpus of twelve volumes – are nothing less than a new conception of systematic theology from an aesthetic-philosophical perspective.
Von Balthasar used a great number of primary sources and secondary literature yet he created a closed oeuvre with a pre-determined system of theological thought. In this he did not need literature except as an inspiration in terms of form and an affirmation of ideas that had already been part of his theological worldview from the start. His approach has elicited various reactions. Manfred Lochbrunner, an admirer of von Balthasar, emphasised that this works 'sent out a very strong message to contemporary theology' [ein Werk, "von dem die stärksten Impulse in die zeitgenössische Theologie" ausgegangen seien, um eine "Neustrukturierung der Theologie unter dem Prinzop des Drmatischen" ] that it should be 'restructured' following 'the principle of the dramatic' (Hans Urs von Balthasar 292–3). The Swiss scholar Stefan Bodo Würffel, on the other hand, came to the conclusion that von Balthasar practised an 'interpretation of literature with a priori assumptions in mind' and did not focus on 'texts or literature' (73). From the outset he forced predetermined meanings onto poetry, irrespective of the actual content of the texts. Hence the catholic theologian Peter Hofmann, in an exemplary study of Goethe's reception, concluded that 'this gives the impression that von Balthasar, when talking … about Goethe, ultimately seems to be talking about von Balthasar himself' (95). Further, as Karl-Josef Kuschel noted, 'von Balthasar's theology is not dialogical in the sense of finding truth in solidarity with non-theological and non-Christian witnesses'. 'The aesthetic gives von Balthasar's theology shape and form, but the faith of the Church alone provides the substance' (Theologen 112–3).
Another perspective corroborates this evaluation. Lochbrunner included 'theological literary criticism' among von Balthasar's idea of 'layers of interpretation' (Romano Guardini, 174–5). Genuine dialogue, however, requires that a 'literary criticism of theology' should
also necessarily be part of it. However, this was emphatically not the role that poetry played in von Balthasar's interpretation of the relationship between theology and literature. In the last count, von Balthasar was mainly interested in a wide-ranging affirmation through literature of his own convictions or in stimulating a rhetorically very creative but, contentwise, repetitive reformulation of a pre-modern, closed theological worldview.
Guardini and von Balthasar: Similarities and Differences in the Reception of Literature
What did Hans Urs von Balthasar's and Romano Guardini's theological interpretations of literature have in common?
1. In contrast to the ways of handling 'Christian texts' prevailing in their day, both were concerned with original literary texts and less interested in biographies or the authors themselves. They integrated their understanding of texts into a worldview dominated by theology. This approach led them to draw only incidentally on biographical, culturalcontextual or philological secondary literature.
2. Both theologians, independently of each other, interpreted in great detail the work of four writers: Goethe, Rilke, Dostoyevsky and Hopkins.
3. Through literature, both theologians developed a language, authenticity and contemporary relevance not found in the publications of other theologians of the time. Both individuated a 'prophetic' power in their four great authors, without implying that that this power was of the same kind as prophecy as described in the Bible.
4. Both were keenly aware of the cultural changes taking place in their times. They felt that they were witnesses to a process in which a religiously defined pre-modernity was increasingly becoming ousted by a modernity defined by new philosophical, economic, political and social contours. They proposed their theological reading of literature to meet these challenges.
So much for the similarities. There are also important differences.
1. While Guardini employed close reading when interpreting texts, von Balthasar focused on formulating an intellectual profile, one that included a stylized version of the poet's personality or the 'poet's soul'.
2. Guardini based his conclusions on a reading of the complete oeuvre of an author's works, a procedure that could only be applied to authors who were no longer living. Von Balthasar, on the other hand, offered interpretations of contemporary and emerging literary projects. Von Balthasar thus ran the risk that his interpretations became awkward or untenable when authors changed their literary style or the focus of their work. An example was Reinhold Schneider (Langenhorst, 'Reinhold Schneide' 1–30). The 'intellectual profiles' created by von Balthasar were norms which, as he implied, were normative even for the authors themselves.
3. In the eyes of von Balthasar, Christianity was well oriented and focused when it concentrated on an established and proven system of beliefs. This system, it was true, needed to be reformulated but not substantially changed. Guardini was more adventurous. While he did not engage in a true dialogue with literature or countenance that literature was in a position to criticise or question theology, he admitted that Christianity in modernity had to create new paradigms and have the courage to redefine itself. Ultimately, von Balthasar's theology remained pre-modern; Guardini's dared to step into the unfamiliar to find an answer.
4. Their different approaches led them to study different works of literature. Von Balthasar analysed works which, in his view, confirmed the main tenets of Christianity. He
concentrated mainly on works of the renouveau catholique. On the other hand, he consulted dramatic texts because he was looking for alternative literary forms that might help re-express the meanings of Christianity. Guardini, on the other hand, explored literary works that went beyond the boundaries of Christianity, addressing the challenges of his time. His Christian interpretations of literature struggled with these texts in terms of both form and content in search of new solutions.
Guardini's and von Balthasar's concepts of 'theology and literature' were independent systems of thought steeped in Catholicism and closely linked to their intellectual systems of thought. Neither was concerned about creating a new hermeneutics or establishing his own 'school'. To date, their approaches have not stimulated productive debates, ones that might encourage the further exploration of their concepts and ideas. 4 The few academic attempts to interpret their ideas systematically have not inspired original theological-literary concepts.
Paul Tillich: Correlation
From today's perspective, Guardini's and von Balthasar's interpretations of literature mark the moment when the dialogue between theology and literature assumed the status of a discipline, 'theology and literature'. Both thinkers examined works that were not overtly Christian. Neither, however, had a long-lasting influence on development of the discipline. Instead, the developments that did take place were shaped by Paul Tillich's 'theology of culture' and his method of 'correlation'. It was Tillich's work, not that of Guardini and von Balthasar, that gave rise to later independent hermeneutical approaches – theses, anthologies, articles and essays – which continue today.
Through his method of correlation, Tillich discovered a new understanding of the relationship between culture and religion, one that sought to relate, rather than harmonize or integrate, the two. He defined 'correlation' as follows: 'The method of correlation explains the content of Christian faith through existential questions and theological answers in mutual interdependence' (60). For theologians, this method has two consequences: 'Theology formulates the questions implied in human existence', and at the same time it 'formulates the answers implied in divine self-manifestation under the guidance of the questions implied in human existence' (Tillich 61). This poses the following problem: how do we arrive at a formulation of these 'questions implied in human existence'? It was obvious for Tillich that 'pictures, poems and music' (13) could be the objects of investigation for theology. 'The analysis of the human situation employs materials made available by man's creative selfinterpretation in all realms of culture. Philosophy makes a contribution' and – as he explicitly mentions– 'so do poetry, drama, the novel' (63). For that reason, literature is 'primarily … [a part of man's] creative self-interpretation' (13–14). As such it is an object for theological analysis, because it helps to illuminate the human situation in its existential dimensions by asking important questions to which the Christian message can give reliable answers.
In the years that followed, Tillich's students developed this approach. Even today it is still perceived as the productive way of thinking about the relationship between 'theology' and 'literature'. Although Tillich himself never undertook a systematic interpretation of contemporary literature (Kucharz 292-332), his approach provided the basis for later theological-literary analyses, which developed largely independently from each other in Germany, England and the USA. Here are some examples.
* Hans Jürgen Baden, Friedrich Hahn, Dorothee Sölle, Henning Schröer and other Protestant theologians created various theological-literary systems of interpretation along the lines laid down by Tillich.
* Amos Niven Wilder, Nathan Scott and Robert Detweiler, who established the study of theology and literature in the USA from the 1950s onwards, took Tillich's work as their starting point.
* David Jasper and Terry Wright, probably the most important figures in the foundation of the academic discipline of theology and literature in Great Britain, based their diverging concepts of the discipline on Tillich's approach.
Four distinctive features of theological-literary approaches in the tradition of Tillich may be noted. First, modernity is accepted unreservedly as a fact. Within the framework of this new cultural paradigm, theology needed to be reexpressed. Second, the method of correlation provided the means. Cultural artefacts, including literature, were to be set in a relationship of tension with works of theology. Literature posed questions; theology addressed them. Third, the works of 'Christian literature' were to be ignored because they usually did no more than reaffirm an already familiar way of thinking. Looking at works of art that were ideologically and aesthetically independent would provoke fruitful debate. Fourth, since Tillich's approach was mainly about challenge, inspiration and dialogue, a content rather than style must be the focus. The following questions were fundamental: which modern literary texts identify issues that could also be found, mutatis mutandis, in the Christian tradition? In what ways should Christian theology be reshaped or its worldview adapted in order to face these challenges productively?
Theology and Literature in the Name of Dialogue: Karl-Josef Kuschel
The fact that 'autonomous' literary texts can have their own value for theology and the Church was affirmed publicly for the first time by the Roman Catholic Church at the Second Vatican Council. The Pastoral Constitution Gaudiumet Spes stated in Chapter 62, under the subtitle 'Proper harmony between Culture and Christian Formation':
In their own way literature and art are very important in the life of the Church. They seek to give expression to man's nature, his problems and his experience in an effort to discover and perfect man himself and the world in which he lives; they try to discover his place in history and in the universe, to throw light on his suffering and his joy, his needs and his potentialities, and to outline a happy destiny in store for him. Hence they can elevate human life, which they express under many forms according to various times and places (Flannery 966–7).
Here literature is said to have the following roles: to explore human nature; to consider humankind's problems and experience; to improve humankind and the world in which humans live; to shed light on humanity's place in history and in the universe (notably not 'creation' in this context); and to focus on human suffering and joy, human needs and potentialities.
This was an exceptional and comprehensive affirmation of the value of literature for theology. Without narrowing the focus to overtly Christian literature, it announced a new appreciation of something that had not previously been expressed with such clarity. For the first time, a truly dialogical understanding was under way.
During the same period, independent academic reflection on theology and literature established itself in German-speaking countries. Karl-Josef Kuschel (born 1948) entered the field in 1978 with his well-received dissertation Jesus in der deutschsprachigen Gegenwartsliteratur ('Jesus in Contemporary German-speaking Literature'). He emphasized the dialogical character of his approach from the beginning. The focus of this work was that 'it deals with literary studies and theology at the same time' (Kuschel, Jesus 3). Several
central themes in Kuschel's oeuvre, which continues to provoke debate to this day, are already evident in this monograph.
Essentially, Kuschel is interested in 'a mutual challenge' (Jesus 4). But how could this new dialogical paradigm of mutual challenge be defined with regard to content? The answer was that both areas could act as a 'critical corrective' to each other. Literature could become a critical corrective 'for a theological language which often disguises human reality with empty language that claims truth and invariability, instead of illuminating it' (Kuschel, Jesus 4). And theology could be a corrective because it challenged literature to 'keep the quest open, the quest for genuine humanity, the quest for reality as it is, the quest for hope' (Kuschel, Jesus 5). Kuschel notes that Tillich's model had begun to tackle the problems addressed by modernity but that in his model the dialogue between literature remained onesided; literature posed the question, theology answered it. He developed his own approach further in the 1980s, emphasising the importance of dialogue by concentrating on mutual questioning and challenging.
The following features characterise Kuschel's interpretation of how literature and theology might fruitfully interact, one that remains an accepted model in German-speaking countries. First, modernity is recognised as a reality with which theology must come to terms in the tradition of the Second Vatican Council. Second, three guiding principles inform the relationship of theology and literature: the acceptance of literary works as autonomous works of art, the recognition that literary works challenged theological thinking and the construction of a dialogue between literature and theology. Third, the interpretation of texts is paramount, meaning in practice that an interpreter should analyse primary texts in conjunction with secondary literature. Fourth, studies focused on theological subject-matter, themes, characters and other literary motifs should aim to or contribute to the findings of systematic theology. In addition, such studies should concentrate on the work of authors whose oeuvre is characterised by the incorporation of religious elements. These interpretations should eschew idealised stylisation or standardisation of the kind of literary work worthy of study. Fifth, emphasis should be placed on interpreting literature, whether contemporary or canonical, that speaks of the advent, the crisis and the transformations of modernity rather than explicitly Christian literature. Works of German-Jewish literature offer particularly important texts in this respect. Sixth, theoretical reflection of a purely academic kind concerning literature is of secondary relevance. Seventh, in contrast to approaches that focus exclusively on the text, all methods that contribute to the understanding of a text are valid, examples being the methods of literary criticism, the analysis of socio-historical contexts, biography, comparative thematic studies and the history of ideas.
Kuschel's general hermeneutical approach was set out in the volume Vielleicht hält Gott sich einige Dichter ['Perhaps God Cares for some Poets'], published in 1991. In this monograph he develops ten 'literary-theological portraits', which he then sums up and comments on in a detailed and programmatic final chapter entitled 'Towards a Theo-Poetics'. Kuschel begins by presenting two models that had previously been used to describe the relationship between 'theology' and 'literature'. The 'confrontational model' assumes an 'antithetical position of a theology of revelation' which is of necessity 'different from the religiousness of the authors and their products' (Kuschel, Vielleicht 380–81). This model can be found in theological approaches that consider culture as something essentially bad. In the second model, the 'model of correlation' in the tradition of Paul Tillich and the Second Vatican Council, literature is taken seriously 'as an expression of authentic, contemporary human experience'. In this perspective, 'the vision of a different religiousness' is not felt as a threat but as an enrichment 'which may lead to a self-critical questioning of one's own Christian heritage' and to an interest in opening up 'a dialogue'. But this type of dialogue still leads to the conclusion that literature merely bears a hint, a trace and the beginnings of an
understanding of a deeper truth, 'which can of course only be fully understood by a correctly practised Christian theology' (Kuschel, Vielleicht 382–3).
Kuschel's main aim is to sketch out an original approach which he calls 'the method of structural analogy'. By that he means a double perspective of 'correspondences and contradictions'. He writes: 'Looking for correspondences' does not serve to instrumentalise literature . 'Thinking in structural analogies means to perceive correspondences between one's own thinking and that of someone else' (Kuschel, Vielleicht 385). This also applies in reverse: 'Contradictions of Christian explanations of reality' in literature must be clearly recognised and named because 'only in this way does the relationship between theology and literature turn into a relationship of tension, dialogue and struggle for truth' (Kuschel, Vielleicht 385). What, then, is the special, new, quality of this model that would inspire dialogue? If Christian theology takes literary works seriously, it can definitely no longer claim to be the 'answer to every existential question' (Kuschel, Vielleicht 385). 'The aim is a theology with a different style'(Kuschel, Vielleicht 386). Kuschel's statement here summarizes the obligation that theology would face when confronted with a challenging – in a positive sense – body of literature.
In this context it is interesting to see that Kuschel, in contrast with most parts of the English-language discourse on this topic, remains firmly within the paradigm of modernity with all its hermeneutical prerequisites. He continues to have a steadfast belief in meaning and in meaningful interpretation leading to knowledge, in the existence of an objective value system, in a literary canon that includes important and enduringly significant works of literature, and in the possibility of a dialogical theology which accepts the challenges of modernity and supplies convincing answers. All of these assumptions are part of the approach, rooted deeply in the history of ideas, that has been adopted by the majority of theses in the academic discipline of theology and literature written in German over the last thirty years.
In theological discussions of literature today, the task of demonstrating a full appreciation of literature's autonomy is seen to be so necessary and can take up so much space that a convincing theological response tends to remain undeveloped. Beyond Guardini and von Balthasar, no fully developed concept of a theology supported and inspired by literature has come to the fore. Other concepts barely progress beyond the first steps of, for example, formulating questions for or challenges to contemporary theological thinking and writing. I suggest, therefore, that one of the most thought-provoking lines of thought in Guardini's and von Balthasar's interpretation of literature might well provide us with the key question for post-modernity. The question is this: How can theology, on the one hand, take literature seriously and appreciate its autonomous content, and, on the other hand, create an independent Christian interpretation of being by using these same texts in an effort, both appreciative and challenging, that paves the way for future discourse?
Endnotes
1 All the following direct quotations which are not available in English have been translated
by Georg Langenhorst.
2 (For more information on this see Langenhorst, Theologie; www.theologie-und-literatur.de).
3 Stefan Bodo Würffel even identifies 'manipulated citations'; see 'Endzeit-Philologie: Hans Urs von Balthasars germanistiche Anfänge'. Ed Barbara Hallensleben and Guido Vergauwen. Letzte Haltungen 63–82.
4 In Latin America especially we find attempts to practise 'literary theology' in the spirit of Hans Urs von Balthasar (see, for example, de Palumbo).
Works Cited
Balthasar, Hans Urs, von. Bernanos: An Ecclesial Existence. San Francisco: Ignatius, 1996. Print.
---. Geschichte des eschatologischen Problems in der modernen Deutschen Literatur. Freiburg/Einsiedeln: Johannes, 1988. Print.
---. 'Geist und Feuer. Ein Gespräch mit Michael Albus.' Herder Korrespondenz 30 (1976): 72–82. Print.
---. Reinhold Schneider: Sein Weg und sein Werk. Köln/Olten: Hegner, 1953. Print.
Flannery, Austin, ed. Vatican Council II. The Conciliar and Post Conciliar Documents Dublin: Dominican Publications St. Saviour's, 1975. Print.
.
Guardini, Romano. Sprache–Dichtung–Deutung. Gegenwart und Geheimnis. Mainz: Matthias-Grünewald, 1992. Print.
---. Berichte über mein Leben: Autobiographische Aufzeichnungen. Ed. Franz Henrich. Düsseldorf: Patmos, 1984. Print.
---. Stationen und Rückblicke. Würzburg: Werkbund, 1965. Print.
---. Rilke's Duino Elegies: An Interpretation. Trans. K. G. Knight. London: Darwen Finlayson, 1961. Print.
---. Hölderlin. Weltbild und Frömmigkeit. Leipzig: Hegner, 1939. Print.
---. Der Mensch und der Glaube: Versuche über die religiöse Existenz in Dostojewskis großen Romanen. Leipzig: Hegner, 1932. Print.
Haupt, Sabine. 'Vom Geist zur Seele: Hans Urs von Balthasars theologisierte Geistesgeschichte im Kontext der zeitgenössischen Germanistik und am Beispiel seiner Novalis-Auslegung.'Letzte Haltungen: Hans Urs von Balthasars Apokalypse der deutschen Seele–neu gelesen. Ed. Barbara Hallensleben and Guido Vergauwen. Fribourg: Academic, 2006. 40–62. Print.
Hofmann, Peter. 'Balthasar liest Goethe: Die 'Apokalyptik der deutschen Seele' als theologische‚ divina comedia.' Letzte Haltungen: Hans Urs von Balthasars Apokalypse der deutschen Seele–neu gelesen. 83–100. Print.
Kapp, Volker. 'Die katholischen Dichter in Frankreich und das deutsche Geistesleben. Hans Urs von Balthasar als Deuter und Mittler des Renouveau Catholique.'Moderne und Antimoderne. Der Renouveau catholique und die deutsche Literatur. Ed. Wilhelm Kühlmann and Roman Luckscheiter. Freiburg/Berlin/Wien: Rombach, 2008. 397– 412. Print.
Gisbert Kranz. Lexikon der Weltliteratur. Freiburg: Herder, 1978. Print. ---. Christliche Literatur in der Gegenwart. Aschaffenburg: Pattloch, 1961. Print.
Krenski, Thomas. Hans Urs von Balthasars Literaturtheologie. Hamburg: Kovac, 2007. Print.
Kucharz, Thomas. Theologen und ihre Dichter: Literatur, Kultur und Kunst bei Karl Barth, Rudolf Bultmann und Paul Tillich. Mainz: Matthias-Grünewald, 1995. Print.
Kuschel, Karl-Josef. 'Zwischen Modernismuskrise und Modernekritik: Romano Guardini.' Theologische Quartalschrift 184 (2004): 158–84. Print.
---. 'Theologen und ihre Dichter: Analysen zur Funktion der Literatur bei Rudolf Bultmann und Hans Urs von Balthasar.' Theologische Quartalschrift 172 (1992): 98–116. Print.
---. 'Vielleicht hält Gott sich einige Dichter…':Literarisch-TheologischePorträts. Mainz: Matthias-Grünewald, 1991. Print.
--- . Jesus in der deutschsprachigen Gegenwartsliteratur. München/Zürich: Piper, 1987. Print.
Langenhorst, Georg. „Ich gönne mir das Wort Gott". Annäherungen an Gott in der Gegenwartsliteratur, 2 2014. Herder: Freiburg. Print.
---.Theologie und Literatur: Aktuelle Tendenzen. Theologische Revue 109 (2013): 355-372. Print.
---. 'Reinhold Schneider heute lesen? Theologisch-literarische Annäherungen.' Wege zu Reinhold Schneider: Zum 50. Todestag des Dichters. Ed. Friedrich Emde and Ralf Schuster. Passau: Schuster, 2008. 1–30. Print.
---. Theologie und Literatur: Ein Handbuch. Darmstadt: Wissenschaftliche Buchgesellschaft, 2005. Print.
---. Ed. 'Theologie und Literatur.' Theologie und Literatur. Web. (nb. home page) <www.theologie-und-literatur.de>.
Lochbrunner, Manfred. Hans Urs von Balthasar und seine Literatenfreunde: Neun Korrespondenzen. Würzburg: Echter, 2007. Print.
---. 'Romano Guardini und Hans Urs von Balthasar: Integration von Theologie und Literatur.' Internationale Katholische Zeitschrift Communio 34 (2005): 169–85. Print.
Palumbo, Cecilla Inés Avenatti, de. La Literatura en la Estética de Hans Urs von Balthasar: Figura, Drama y Verdad. Salamanca: Secretariado Trinitario 2002. Print.
Tillich, Paul. Systematic Theology. Vol. 1. Chicago: University of Chicago Press, 1951. Print.
Würffel, Stefan Bodo. 'Endzeit-Philologie. Hans Urs von Balthasars germanistische Anfänge.' Letzte Haltungen: Hans Urs von Balthasars Apokalypse der deutschen Seele–neu gelesen. 63–82. Print
Ziolkowski, Theodore. 'Theologie und Literatur: Eine polemische Stellungnahme zu literaturwissenschaftlichen Problemen.'Theologie und Literatur: Zum Stand des Dialogs. Ed.Walter Jens, Hans Küng, and Karl-Josef Kuschel. München: Kindler, 1986. Print.
|
SENATE BILL 5371
State of Washington 65th Legislature 2017 Regular Session
By Senators Becker, Rivers, Brown, Braun, Angel, Warnick, and Honeyford
Read first time 01/20/17. Referred to Committee on Commerce, Labor & Sports.
AN ACT Relating to protecting public sector workers' rights 1 through public disclosure of public sector unions' finances; adding a 2 new section to chapter 41.58 RCW; adding a new section to chapter 3 47.64 RCW; adding a new section to chapter 28B.52 RCW; adding a new 4 section to chapter 41.56 RCW; adding a new section to chapter 41.59 5 RCW; adding a new section to chapter 41.76 RCW; adding a new section 6 to chapter 41.80 RCW; adding a new section to chapter 49.39 RCW; 7 creating new sections; prescribing penalties; and providing an 8
effective date. 9
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 10
NEW SECTION. Sec. 1. The legislature finds that the labor 11
management reporting and disclosure act, passed by the United States 12
congress in 1959, serves as an important protection of the rights of 13
private sector union members by requiring labor organizations to 14
publicly report information related to union finances, membership, 15
leadership, and governance. The legislature finds that Washington 16
public employees who are members of a labor organization lack the 17
same rights to disclosure from their union as their private sector 18
counterparts. 19
The legislature intends for increased transparency and financial 20
disclosure to provide public sector workers with more complete, 21
p. 1
timely, and comprehensible information about their union's financial 1
practices, investments, solvency, and expenditures to empower them to 2
protect their personal financial interests and exercise their 3
democratic rights of self-governance. 4
5
NEW SECTION. Sec. 2. A new section is added to chapter 41.58
RCW to read as follows: 6
7
(1) Each employee organization must file with the commission a
8
9
report signed by its president and secretary or corresponding principal officers, and the report must contain the following
10 information:
(a) The name of the employee organization, its mailing address, 11 and any other address at which it maintains its principal office or 12
at which it keeps records; 13
14
(b) The name and title of each of its officers; and
(c) Detailed statements regarding the provisions made and 15
procedures followed with respect to each of the following: 16
17
(i) Qualifications for, or restrictions on, membership;
(ii) Levying of assessments; 18
19
(iii) Participating in insurance or other benefit plans;
(iv) Authorization for disbursement of funds of the employee 20 organization; 21
(v) Audit of financial transactions of the employee organization; 22
(vi) The calling of regular and special meetings; 23
(vii) The selection of officers and agents; 24
(viii) Discipline or removal of officers or agents; 25
(ix) Fines, suspensions, and expulsions of members, including the 26
27 grounds for such actions and any provision made for notice, hearing,
judgment, and appeal; 28
29
(x) Authorization for bargaining demands; and
30
(xi) Ratification of contract terms.
(2) Any change in the information required by subsection (1) of 31 this section must be reported to the commission at the time the 32 employee organization files with the commission the annual financial 33 report required in subsection (3) of this section. 34
35
36
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(3) Each employee organization representing one hundred or more employees must annually, not more than ninety days after the end of its fiscal year, file with the commission a financial report signed by its president or treasurer or corresponding principal officers containing the following information in such detail as may be
p. 2
1
2
necessary to accurately disclose its financial condition and operations for its preceding fiscal year:
(a) Assets and liabilities at the beginning and end of the fiscal 3 year; 4
5
(b) Receipts of any kind and the sources thereof;
(c) Salary, allowances, and other direct or indirect 6 disbursements including reimbursed expenses, to each officer and also 7 to each employee who, during such fiscal year, received more than ten 8 thousand dollars in the aggregate from such labor organization and 9 any other labor organization affiliated with it or with which it is 10 affiliated, or which is affiliated with the same national or 11 international labor organization; 12
(d) Direct and indirect loans made to any officer, employee, or 13 member, which aggregated more than two hundred fifty dollars during 14 the fiscal year, together with a statement of the purpose, security, 15 if any, and arrangements for repayment; 16
17
18
19
(e) Direct and indirect loans to any business enterprise, together with a statement of the purpose, security, if any, and arrangements for repayment; and
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22
23
24
25
26
27
28
29
30
31
32
33
34
35
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(f) Other disbursements made by it including the purposes thereof, all in such categories as the commission may prescribe.
(4) The commission has rule-making authority to ensure that the reports required under subsections (1) and (3) of this section are consistent with the reporting requirements established by the labor management reporting and disclosure act of 1959 and the regulations adopted under that act.
(5) The employee organization must make copies of reports or other documents filed under subsections (1) and (3) of this section available to every employee in the bargaining unit, and must annually notify every employee in the bargaining unit that the reports are available on the web site maintained by the commission.
(6) The commission shall preserve the statements or reports filed under subsections (1) and (3) of this section for a minimum of ten years. The contents of the reports and documents filed with the commission under subsections (1) and (3) of this section are public information and must be made available to the public in the following manner: By ninety days after the effective date of this section, the commission shall operate a web site or contract for the operation of a web site that allows public access to reports, copies of reports,
p. 3
or copies of data and information submitted in reports, filed with 1 the commission under subsections (1) and (3) of this section. 2
(7) The commission may determine whether a violation of this 3 section has occurred. The commission may issue and enforce an order 4 subject to the following: 5
(a) If the commission finds that an employee organization has 6 violated this section by failing or refusing to prepare the reports 7 as required in subsections (1) and (3) of this section or by 8 preparing an incomplete or inaccurate report, the commission shall 9 issue an order compelling compliance and assess a fifty dollar fine 10
for each day each report is overdue. 11
(b) The commission may make determinations and issue and enforce 12 orders at its own discretion or as a response to a petition filed by 13 the employer, any employee in the bargaining unit, or any member of 14 the general public. The commission may refer matters of compliance to 15 the state attorney general or other enforcement agency. 16
(8) Any person who willfully violates this section must be fined 17 an amount not exceeding ten thousand dollars. 18
(9) Any person who knowingly makes a false statement or 19 representation of a material fact or who knowingly fails to disclose 20
21 a material fact, in any document, report, or other information
22
23
24
25
26
27
required under this section must be fined an amount not exceeding ten thousand dollars.
(10) Any person who willfully makes a false entry in or willfully conceals, withholds, or destroys any books, records, reports, or
statements required to be kept by this section must be fined not more than ten thousand dollars.
28
(11) Each individual required to sign reports under subsections
(1) and (3) of this section is personally responsible for the filing 29
30 of those reports and for any false statement that the individual
31 knows is false contained in the reports.
(12) An employee organization may satisfy the reporting 32
33 requirements under subsections (1) and (3) of this section by filing
34
35
36
37
38
with the commission copies of the reports required to be filed with the United States department of labor under the labor management
reporting and disclosure act.
NEW SECTION. Sec. 3. A new section is added to chapter 47.64
RCW to read as follows:
p. 4
Section 2 of this act applies to ferry employee organizations 1
under this chapter. 2
NEW SECTION. Sec. 4. A new section is added to chapter 28B.52 3
RCW to read as follows: 4
Section 2 of this act applies to employee organizations under 5
this chapter. 6
NEW SECTION. Sec. 5. A new section is added to chapter 41.56 7
RCW to read as follows: 8
The requirements applicable to employee organizations under 9
section 2 of this act apply to bargaining representatives under this 10
chapter. 11
NEW SECTION. Sec. 6. A new section is added to chapter 41.59 12
RCW to read as follows: 13
Section 2 of this act applies to employee organizations under 14
this chapter. 15
NEW SECTION. Sec. 7. A new section is added to chapter 41.76 16
RCW to read as follows: 17
18
Section 2 of this act applies to employee organizations under
this chapter. 19
NEW SECTION. Sec. 8. A new section is added to chapter 41.80 20
RCW to read as follows: 21
Section 2 of this act applies to employee organizations under 22
this chapter. 23
NEW SECTION. Sec. 9. A new section is added to chapter 49.39 24
RCW to read as follows: 25
Section 2 of this act applies to bargaining representatives under 26
this chapter. 27
NEW SECTION. Sec. 10. If specific funding for purposes of this 28
29 act is not provided by June 30, 2017, in the omnibus operating
appropriations act, this act is null and void. 30
p. 5
--- END --- p. 6
|
IN THE COURT OF MALIK MUHAMMAD ZIA UL TARIQ KHOKHAR, ADDL: SESSIONS JUDGE, KHUSHAB
……
s/o , aged 50 years, caste , cultivator by profession, r/o Chak No.27/DB, Tehsil & District Mianwali.
(Complainant)
Versus s/o
, aged 32 years, r/o , Tehsil & District
Mst.
w/o aged 56 years, r/o
, caste,
&
, caste,
Tehsil & District.
,
,
(Accused persons)
Sessions complaint case No.64 of 2017 & 08 of 2019.
Offences u/s 302/34 PPC.
P.S. City
District.
XXXXXXXXXXXXXXXX
The State through,
aged 50 years, caste s/o
, cultivator by profession, r/o Chak No.27/DB, Tehsil & District.
Versus s/o
, aged 32 years, r/o , Tehsil & District
Mst.
w/o
Tehsil & District aged 56 years, r/o
(Complainant)
, caste,
&
,
,
.
(Accused persons)
Sessions case No.24 of 2017 & 07 of 2019. Sessions Trial No.01 of 2019.
FIR No.522 dated 27.11.2015.
Offence u/s 302/34 PPC
Police Station City
, District
, caste.
(i)
(ii)
2.
(i)
(ii)
.
,
2
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
Date of Decision: 13.07.2019
Ch. Qasim Hussain Advocate, learned counsel for the complainant. Muhammad Ramzan Advocate, learned defence counsel. Mr. NaveedI qbal, learned ADPP for the State.
JUDGMENT:
Initially the complainant (PW-1) got registered F.I.R No.522 dated 27.11.2015 (Ex.CW2/B) for the offence u/s 302/34 PPC with police station City against the accused persons (32 years) and Mst. (56 years) and police prepared cancellation report which was disagreed by the learned Area Magistrate and sent up to this court for trial for the charge of murder of Mst. daughter of the complainant.
2. Being aggrieved by the conduct of police since lodging of the
F.I.R till the final result of investigation, complainant,
(PW-1) has preferred instant private complaint (Ex.PA). As per contents of the private complaint in hand Ex. PA on 20.11.2011, daughter of the
complainant Mst.
was married with,
accused and her rukhsati was taken place on the same day. The
behavior of
accused remained very cruel with Mst.
. He deserted her many time but by the intervention of
respectable, the complainant made her abad with the accused again and she started to live with the accused. Three children namely,
and
were born out of their wedlock.
accused on the
instigation of his mother Mst
accused expelled his wife Mst.
(since deceased) from his house after snatching the custody of
above named minor children upon which she came to the house of
3
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
complainant at Mianwali. A litigation started between the parties and during the proceedings of said family litigation, upon the insistence of (since deceased) accused managed to get a five marlas plot of his mother Mst. accused transferred in her name and handed over its possession to her which nurtured sever grudge in their hearts. The accused persons had been making repeated demands of return of said plot from her and upon her refusal to do so, they planned to kill Mst. , take possession of the said plot and snatch her children. Anticipating danger to her life ,she conveyed message to him through her uncle on 26.11.2015 who also warned the accused persons to refrain from killing her and snatching her children from her and also desisted from taking back said plot from her but they were adamant to kill her. Upon receiving the message of his daughter through , the complainant (PW-1) on 27.11.2015 reached along with his brother (PW-2) and there he came to know that accused persons after killing his daughter Mst shifted her dead body to civil hospital after giving it a colour of suicide. They reached hospital where police upon his statement lodged the F.I.R No. 522/15 dated 27.11.15 u/s 302/34 PPC with Police station city but without incorporating the true facts of the case alleged by him due to influence of the accused persons over the local police and also for said reason police prepared the cancellation report of the case. It was further alleged in the complaint Ex.PA that and (PWs) alongwith other persons reached the hospital after coming to know the occurrence and met him at hospital. (PW) runs a widespread business of shopping bags and he
4
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
alongwith (PW-3) came at J in connection with his business. They informed the complainant (PW-1) that on the same day, at about 12.00 p.m., they were passing in the street, where the house of the accused was situated. They heard the crying voices of Mst. . She was known to them previously. On hearing her crying voices, they entered in the house and saw and Mst. accused were coming out from the room situated on the eastern side of house with worried faces. On their inquiry, the accused persons told them that Mst. wanted to leave the home along with baggage. Due to this, they admonished and tortured her. They noticed that her two children were weeping outside at that time. They requested the accused to let them to meet with Mst. but they refused and expelled them from their house by saying that it was their home affair. Thereafter, and , both came at hospital and informed the complainant all these facts who produced these pws to police but being in league with the accused persons the I.O did not record their true statements and so also to faour the accused and in order to suppress the occurrence of murder and in order to give this occurrence a colour of suicide police recorded his statement as well as of his other witnesses according to its own choice. The police assured the complainant that the statements of the witnesses had been recorded correctly but in fact the police did not record their statements correctly and recommended the cancellation of case FIR No.522/2015.
It was further alleged in the complaint Ex.PA that on 13.12.2015 at about 10.00 a.m., the accused and
went to
and
at
, District
and told them that they had killed Mst.
5
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
Bibi by strangulation but made up a story of committing suicide by hanging through the ceiling fan. They requested them to get a pardon for them from the complainant for the murder of Mst. as they were ready to pay Rs.200,000/- to the complainant as compensation. They both came to him and explained the offer of the accused but he (the complainant) refused to pardon the accused persons. He produced these two witnesses before police for recording of their statements but police refused to record their statement. The complainant also filed application for transfer of investigation but could not succeed to get the investigation transferred due to which he was forced to bring this private complaint Ex. PA against the accused persons.
3. On receiving information of the occurrence SI (CW-2) alongwith other officials reached at Civil Hospital, where complainant got recorded his “Fard Biayan” Ex.CW2/A which he sent through 641/C to police station for registration of FIR, on the basis of which FIR Ex.CW2/B was registered. After that he prepared injury statement Ex.CW1/B, Inquest report Ex.CW1/C and handed over these relevant papers alongwith dead body of Mst. Bibi to Robeena Shaheen 389/LC alongwith witnesses who identified the dead body.
After that he alongwith complainant and PWs went to the place of occurrence. He visited the place of occurrence. He took into possession “Dopatta” C.1 which was hanging with the fan alongwith piece of cable of mobile charger C.2 vide recovery memo Ex.CW2/C attested by complainant and PW. After that he prepared rough site plan Ex.CW2/D. He also recorded the statement of , and
. Zameer-ul-Hassan 641/C came there and handed over to him police file of this case upon the basis of which he completed the head notes of documents. He also interrogated some people at the spot.
After that in College Chowk,
389/LC along with dead body identifying witnesses and
appeared before the I.O.
389/LC handed over to I.O. last worn clothes consisting of qameez P.1, shalwar P.2, dopatta (cloth) P.3,brazier P.4, seven sealed jars, one sealed envelope alongwith report of postmortem and relevant police papers. He took the above said articles into possession vide recovery memo Ex.PB attested by 389/LC.
On 29.11.2015 he got visited place of occurrence to draftsman who took rough notes from the place of occurrence on the pointing of complainant and PWs. On 30.11.2015 he handed over the official camera to Tariq Mehmood 592/C to get the prints of photographs of place of occurrence and dead body of Mst. Bibi who got printed the photographs total three in numbers C.3/1-3 and handed over to him. He took the same into possession vide recovery memo Ex.CW2/E attested by Tariq Mehmood 592/C and he recorded his statement u/s 161 Cr. P.C.
On 01.12.2015 Mirza Saeed Draftsman handed over to him scaled site plan in triplicate Ex.PD&Ex.PD/1. On 03.12.2015 Muhammad Javed 366/MHC handed over to him seven sealed jars alongwith envelope for onward transmission to the office of PFSA, Lahore intact. He deposited the said parcels in the said office on the same day, intact. On different dates, he arranged confronted meetings between both the parties and he kept the arrest of accused persons
7
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
and Mst. deferred. On 13.01.2016 on receiving report from PFSA, Lahore he obtained final opinion of doctor vide application Ex.CW1/E and doctor made her opinion on the same application.
On 18.01.2016 he got prepared report u/s 173 Cr. P. C. in the form of cancellation report while ignoring the medical evidence available on file as in case of hanging hyoid bone is broken and involvement of major vessels occurs which was missing in this case rather minor vessels of skin were involved and there was no deep sign of ligature. The investigator happened to ignore these aspects of the medical evidence while jumping to the above said conclusion and recommending the cancellation of the case but the learned area magistrate disagreed with this cancellation report while passing wellreasoned order and sent up the case for trial which was entrusted to the this court by the learned sessions judge Khushab and in the mean while the complainant being aggrieved of the findings of the police was forced to bring the private complainant in hand to seek the trial of the accused persons in attendance for the charge of murder of his daughter Mst upon which learned predecessor court took the cognizance and after completing all legal and procedural formalities he summoned the accused persons in attendance to stand trial in the instant private complaint Ex. PA and they were charge sheeted u/s 302 read with section 34 of Pakistan Penal Code to which they pleaded not guilty and claimed trial. Therefore, prosecution evidence was summoned.
5. In order to prove the guilt of the accused persons, prosecution got examined as many as eleven witnesses.
8
Vs. etc Sessions complaint case No.64 of 2017 & 08 of 2019. The State VS etc. Sessions case No.24/2017 & 07/2019
6. PW-1 is who is the complainant of this case whose evidence will be discussed in the later part of the judgment.
7. PW-2 is who is real brother of the complainant who visited the deceased lady one day prior to the occurrence and he also accompanied the complainant on the following day to the house of the accused. His evidence will also be discussed with the complainant later on.
8. PW-3 is who is the witness of last seen and his evidence will also be discussed after discussing the above said two witnesses in the later part of the judgment.
9. PW-4 is who is the witness of extra judicial confession of the accused persons. His evidence will also be discussed later on.
10. PW-5 is 389/LC who finally took the dead body of Mst. deceased to DHQ Hospital, Jauharabad and to whom the Woman Medical officer handed over the last worn clothes of the deceased lady.
11. PW-6 is who identified the dead body of Mst. at the time of postmortem examination in DHQ Hospital, Jauharabad.
12. PW-7 is Draftsman who prepared the scaled site plan of place of occurrence Ex.PD and Ex.PD/1.
13. PW-8 is 592/C who got printed the photographs of the deceased from the memory card which was handed over by the I.O.
9
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
14. CW-1 is Dr. , WMO, who conducted the postmortem examination upon the dead body of Mst. Bibi whose evidence will be discussed in later part of the judgment.
15. CW-2 is SI who is Investigating Officer of this case. His evidence has already been discussed in incipient paragraph of the judgment, hence, needs not to be discussed again.
16. CW-3 Inspector/SHO who is scriber of the FIR, Ex.CW2/B.
18. In their statements recorded u/s 342 Cr. P. C, the accused persons in attendance namely s/o and Mst. w/o had controverted the allegations leveled against them by the prosecution and they had professed their innocence and to a specific question that why this case was against them and why the prosecution witnesses deposed against them, accused replied as under:-
17. Learned counsel for the complainant vide its statement dated 03.07.2019 gave up PWs , and being unnecessary and closed the prosecution evidence.
"Infact complainant is a greedy person as he took money for several time from me through deceased. A few days prior to this occurrence her brother came to my house and gave message to deceased ( ) from his father that he demanded Rs.50,000/- more otherwise he will take her back to his house forever. On this deceased became disturbed and perturbed. Due to attitude of her father and demand of money she committed suicide. Complainant due to his greedy nature to blackmail me and to get desired demands filed this private complaint against me and my mother. PWs are close relative of complainant. They
deposed falsely against me and my mother on the asking of complainant due to his relationship which fact was also verified by the local police during investigation of this case and came to the conclusion that Mst. committed suicide."
Accused Mst. replied as under:-
"Infact complainant is a greedy person as he took money for several time from my son (co-accused) through deceased. A few days prior to this occurrence her brother came to my house and gave message to deceased ( ) from his father that he demanded Rs.50,000/- more otherwise he will take her back to his house forever. On this deceased became disturbed and perturbed. Due to attitude of her father and demand of money she committed suicide. Complainant due to his greedy nature to blackmail my son and to get desired demands filed this private complaint against me and my son. PWs are close relative of complainant. They deposed falsely against me and my son on the asking of complainant due to his relationship which fact was also verified by the local police during investigation of this case and came to the conclusion that Mst. committed suicide".
19. The accused persons did not opt to record their statements as witness u/s 340(2) Cr. P.C. Accused produced attested copy of judgment passed in application u/s 25 Guardian and Wards Act titled Mst. Vs. as Ex.DA, attested copy of suit for recovery dowry articles titled " etc. Vs. etc." alongwith order dated 07.10.2017 as Ex.DB, attested copy of suit for restitution of conjugal rights filed by first husband of deceased Mst. Bibi titled " Vs. Bibi" alongwith order dated 15.09.2010 passed by the then
11
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
Judge Family Court, Khushab as Ex.DC, original Nikah Nama as Ex.DD and attested copy of petition u/s 491 Cr. P.C. as Ex.DE in defence evidence while accused Mst. did not opt to produce her defence evidence and she relied upon the same evidence.
20. Arguments of learned counsel for the adversaries have been heard and record has been perused carefully.
21. The unnatural death of the deceased lady in the confines of house of the accused was not disputed, but, however, manner of death is disputed by both the parties. The prosecution version is that the death of deceased was unnatural and homicide, while on the other hand defense version is that the death was caused due to suicide. Be that as it may, I am supposed to "Sift the grain from Chaff". Admittedly, the occurrence is unseen and no ocular direct evidence is available on record to prove the case on ocular account. However, entire case of the prosecution rests upon the circumstantial as well as medical evidence. Direct evidence is not the only mode of proving a fact including a murder. The non-availability of direct evidence does not absolve the Court of its onerous obligation of determining whether the death of the deceased was the result of a felonious act and of its further duty to fix the guilt of the person responsible for the same. To resolve the moot question of cause of death and to fix the guilt of the person responsible for the same, I have to adjudge the conduct of the parties.
PW-1 s/o is the father of deceased lady Mst. Bibi, who stated in his private complaint Ex.PA that on 20.11.2011, his daughter Mst. Bibi was married with , accused and her rukhsati was taken place on the same day. The behavior of accused remained very cruel with
his daughter Mst. Bibi. He also deserted her many times but by the intervention of respectable, she again started to live with him. Three children namely , and were born out of their wedlock. after snatching the custody of above named minor children, expelled his wife Mst. Bibi from his house. She came to his house at . There she filed a family suit for dissolution of marriage and maintenance allowance. During the hearing of said family suit, a compromise was effected between Mst. Bibi and accused on the condition that he would pay Rs.500000/- to his wife in case he tortures her in future. A five marls residential plot owned by Mst. accused, the mother of accused was also transferred in the name of Mst. Bibi deceased and possession of said plot was also transferred to her. He further promised to pay Rs.3000/- to 4000/- per child as maintenance. On the basis of above said conditions, the compromise was effected and Mst. Bibi again started to live with her husband ( accused) at Jauharabad. The accused persons were not happy upon said compromise conditions and they bore grudge in their mind in this regard. They demanded the return of said residential plot from Mst. but she refused to do so.
22. The PW-1 further maintained that on 26.11.2015, his brother (PW-2) came to to see Mst. Bibi who disclosed to him that the accused were demanding the return of the above said five marlas residential plot and on her refusal, they used to torture her. said to Bibi and
accused that they had no right to torture Mst.
Bibi, for
Vs. etc Sessions complaint case No.64 of 2017 & 08 of 2019. The State VS etc. Sessions case No.24/2017 & 07/2019
this reason and he would inform this fact to him (the complainant) being father of and they would come to settle the matter. (PW-2) returned and informed all these facts to him. On 27.11.2015, he alongwith came at and reached at the house of accused at about 12.30/1.00 p.m and came to know that accused had committed the murder of Mst. Bibi but by giving it the colour of suicide and had taken the dead body to DHQ Hospital . On this, he alongwith (PW-2) rushed to the hospital, where the dead body of Mst. Bibi was lying. The police was also available at the hospital, but the police officials had joined the hands with the accused. Police recorded his statement and registered the FIR No.522/2015 u/s 302 PPC PS City .
23. He next deposed that (since given up)) and (PW-3) met him at hospital. (given up pw) deals with business of shopping bags and he along with (PW-3) came at in connection with his business. They informed him that on the same day, at about 12.00 p.m., they were passing in the street, where the house of the accused was situated. They heard the crying voices of Mst. Bibi. She was known to them previously. On hearing her crying voices, they entered in the house and saw and Mst. Bibi accused were coming out from the room situated on the eastern side of house. On their inquiry, they told them that Mst. Bibi (the daughter of the complainant) wanted to leave the home alongwith children. Due to this, they tortured her. They required the accused to let them to meet with Mst. Bibi but they refused and expelled them from their house. According to him both and , came at
hospital and informed him (the complainant) all these facts. He took them to police. The police assured him that their statements had been recorded but in fact the police did not record their statements and recommended the cancellation of case FIR No.522/2015.
24. He next deposed that on 13.12.2015 at about 10.00 a.m., the accused Bibi and went to (since given up pw) and (PW-3) at Chak No.25, District and told them that they had killed Mst. Bibi by strangulation. They requested them to manage their compromise with him (the complainant) for the murder of Mst. Bibi as they are ready to pay Rs.200,000/- to him as compensation. They both came to him and explained the offer of the accused but he refused to pardon the accused persons.
25. While highlight the motive aspect of the case he deposed that the accused murdered Mst. Bibi for the reason of said five marlas plot which was transferred in her favour during the reconciliation proceedings in family suit. He finally deposed that the police destroyed his case, therefore, being aggrieved, he filed his complaint Ex.PA, which is signed by him.
26. Learned defence counsel tried to discredit the statement of the complainant PW-1, firstly by saying that he is closely related to the deceased and being an interested witness his evidence is not worthy of credit until it receives independent corroboration. He further submitted that it was the complainant himself who made her life hell and she being frustrated from the behaviour of her father committed the suicide. He further submitted that on his own statement police chalked out the F.I.R but as result of investigation it was transpired that it was a case of
suicide and not the murder. Adverting to these contentions of leaned defence counsel qua relation- ship of the complainant with the deceased lady being her father it is observed that the relationship by itself is no disqualification for the prosecution. It has been the consistent view of the superior courts of the country that mere relationship of the witness with deceased would not discard his testimony if otherwise the same is trustworthy, confidence inspiring and appealing to reason while corroborated by independent circumstances as has happened in the case in hand. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Ijaz Ahmad v. The State" (2009 SCMR 99) and "Talib Hussain and others v. The State and others" (2009 SCMR 825).
27. The complainant being father of the unfortunate deceased lady did not claim to be an eye witness and he put-forward the above deposed details of the occurrence as it is, as were in his natural knowledge and he did not jump to any padding by becoming an eye witness of the occurrence rather he adopted the natural course in which events happened to occur. The record reveals that he was subjected to lengthy cross-examination, but he remained firm on all material counts. He confidently replied to the questions during the cross examination that he alongwith (PW-2) reached at the house of accused where some male and female persons were standing at the house of accused who informed them regarding the shifting of Bibi to hospital after being murdered. He further replied that they left at about 10:00/10:30 a.m. and reached house of accused at about 12:00/12:30/1:00 p.m. and they reached at hospital after about 1:00
16
Vs. etc Sessions complaint case No.64 of 2017 & 08 of 2019. The State VS etc. Sessions case No.24/2017 & 07/2019
p.m. He replied to the suggestion that it is correct that they had got registered FIR No.522/2015 u/s 302/34 PPC P.S. City regarding this occurrence and the same was registered on the basis of his statement (Fard Biyan) recorded by Kazim Hussain SI but he unequivocally explained that he filed this private complaint for the reason that the witnesses he had mentioned to the police at the time of launching of FIR were not mentioned therein by the police. He maintained that PW-3) and ( given up pw) had informed him at about 1:30 p.m. in hospital and during the entire investigation PWs , and remained present in investigation proceedings but police did not record their version properly. Police had not recorded their two witnesses and . He emphatically replied that the police did not write down the names of witnesses namely , and . He voluntarily explained in response to a stinging question that police prepared cancellation report with the connivance of accused party after joining hands with them. He categorically dismissed the suggestion that Bibi deceased committed suicide due to his ill behaviour with her. Despite lengthy cross-examination defense has failed to shake his statement.
28. s/o (PW-2) corroborated the statement of complainant PW-1 with regard to the details of the occurrence and his visit to the house of the accused at one day prior to the day of occurrence i.e. 26.11.2015 and his meeting with his unfortunate niece Mst. Bibi and her telling to him that accused and Bibi accused were demanding the return of five marlas residential plot, which was transferred to her
earlier and her further disclosing to him that the accused persons wanted to snatch her children and also used to torture her and her requesting to him to convey these matters to her father . He also deposed that he also met and Bibi accused and said them that they had no right to snatch the children from Mst. Bibi and torture her. On such information, coming of the complainant (PW-1) along with him (PW-2) to the house of the accused on next day i.e. 27.11.2015 where their coming to know that the accused persons had committed the murder of Mst. Bibi and coloured it of suicide and had transmitted the dead body to DHQ Hospital and the availability of the police already there at the hospital and reporting the occurrence to it by the complainant but Police’s not recording their correct version was deposed by him in a straight forward and natural way in corroboration to the complainant. He denied the question put to him that due to ill- behaviour of her father (PW-1) Mst. Bibi his niece has committed suicide. Despite lengthy cross-examination defense has failed to shake his statement except some variations as to time of their reaching to hospital etc which are insignificant and are bound to creep in the statement of a witness due to passage of time and short of memory etc.
29. PW-3 s/o is an independent witness of the episode of last seen who stated in his statement that he is shopping bag seller by profession and on 27.11.2015, he along with (since given up pw) came at in connection with selling the shopping bags and were passing in the street of , at about 12.00 p.m., where they heard the crying voices from the house of
Vs. etc Sessions complaint case No.64 of 2017 & 08 of 2019. The State VS etc. Sessions case No.24/2017 & 07/2019
accused. On this, they entered in the house and saw that and accused were coming out from the room situated on the eastern north side of the house in puzzled condition. On their query, they told them that Mst. Bibi wanted to go to her parents’ house along with her children and they tortured her and did not allow her to leave the house. They required them to let them to meet her but they refused to allow them saying that it was their family matter. Thereafter they proceeded towards shops and agencies in connection with selling their shopping bags and after some time when they again passed in the said street, they noticed many people were gathering there. According to him the people told them that and Bibi accused had committed the murder of Mst. Bibi and her dead body was taken to hospital. On this, they went to hospital. (the complainant) met them at hospital and they told him all the above stated facts. (the complainant) took them to police already available at hospital where they made their statements to the police.
30. Learned defence counsel tried to discredit the statement firstly by saying that the name of this witness as well his accompanying witness since give up were not mentioned in the F.I.R and as such he is lately introduced witness in re-shaped private complainant and the testimony of this belatedly introduced witness has no worth in the eye of law. I have perused the record as well as cross-examination, wherein (PW-3) categorically stated that he joined investigation with complainant about two times and Police recorded his statement as
well as statement of PWs namely
and
in the hospital. In reply to another question put to
(PW-3) that
police has recommended the cancellation of this case being a case of suicide, he categorically maintained that police has falsely declared this occurrence as of suicide case. He voluntarily replied that it was a murder case. He denied that Bibi committed suicide because of ill-behaviour of her father with her. Not even a single suggestion was put to this important witness of last seen as to non-availability of the accused in his house at that point of time and non-seeing of him by this witness in his house. Record reveals that despite searching crossexamination defence has failed to jolt his statement. He denied that accused was implicated falsely.
31. Next important witness is s/o (PW-4) who is the witness of extra-judicial confession. He deposed in his statement that on 13.12.2015, Mst. Bibi accused present before court and accused came to his house at Chak /MB. He alongwith (since given up), his relative was sitting at his house. They told that they committed murder of Mst. Bibi by strangulating her when she was sleeping and coloured the incident as suicide. They requested them to manage a compromise with the complainant party and they offered Rs.2,00,000/as compensation to the complainant party. He narrated this mater to , complainant PW-1 but he was not agreed to enter into compromise. He was subjected to cross examination but nothing favourable to the defence could be got solicited from his mouth. Upon cross examination he stuck to his stance that accused persons namely and Bibi came to him on 13.12.2015at about 10:00 a.m. and on next day, he told to complainant regarding the confession of and . He dismissed
the suggestion that neither accused persons and
Bibi came to him nor they confessed their guilt before them. As a whole, the defense has failed to put any question with regard to false implication of the accused.
32. The next important witness which the prosecution has produced as CW-1 is Dr. presently posted in Sindh Health Department at Karachi on deputation who conducted the autopsy upon the dead body of the deceased Mst. Bibi. She deposed that on 27.11.2015, she was posted at DHQ hospital Jauharabad. On the same day, at about 7.00 p.m., she conducted postmortem examination of Bibi brought by 389/LC and Javed ASI. The dead body was identified by (PW-6) and
(since given up pw) at the time of her postmortem examination. She found sign of ligature mark present on left side of neck starting from the back (occipital bone) of neck, up to 2 cm away from hyoid bone which is about 5 cm in length. She also noted radish blue bruise present there and she found 1½ meter cloth around the neck with knot at opposite side which she handed over to police. According to her observations the ligature mark was horizontal.
She further deposed that on dissection of neck it was found, bruising of soft tissue of neck was present. Hyoid bone and thyroid cartilage was not broken, visceral congestion present. Upon dissection of "Thorax" she found that Pericardium and heart had marked collection of blood present.
She obtained skin from effected side, stomach, hyoid bone, large and small intestine, spleen, liver, kidney and heart to send them as Specimens for expert opinion.
In her opinion, deceased Bibi was subjected to Asphyxia before the death, however, initially she kept her final opinion in abeyance till the receipt of report of PFSA/Histopathology of the above said visceras. According to her, Asphyxia is sufficient to cause death in ordinary course of nature as it led to hypoxia of vital organs and shock. On receiving of PFSA report Ex.CW1/D I.O. moved application for final declaration. She made her final opinion Ex.CW1/E on the basis of report of PFSA, Lahore Ex.CW1/D as under:-
"No poison was detected, no ante-mortem injury of bone was seen". So, in my final opinion death was caused due to Asphyxia as the skin from ligature side reveals blood hemorrhages suggesting antemortem nature of injury at the level of neck."
According to her Ex.CW1/A is the correct carbon copy of postmortem examination report No.26/2015, Ex.CW1/A/1 is the sketches of injuries which were prepared and signed by her. She also endorsed injury statement Ex.CW1/B and inquest report Ex.CW1/C.
She estimated the probable time elapsed between injury and death was ten to fifteen minutes, while between death and postmortem was within six to seven hours approximately.
On cross-examination, CW-1/Dr. Dr. stated that normally when the death occurs due to strangulation, eye balls and tongue protrude. She admitted it correct that in column of her opinion there is cutting on the word strangulation and she wrote down the word "Asphyxia". She explained it by deposing that word strangulation was mentioned due to clerical mistake which was corrected by her at the spot. In a reply to a question she categorically deposed that in her opinion it was a case of homicidal. She deposed during cross
examination of learned defence counsel that there was no mark of violence on the whole body of deceased Mst. Bibi except her neck and as per report of histopathologist it has been categorically opined that the bone of the neck was not broken prior to the postmortem examination. The skin of the ligature side reveals blood hemorrhages suggesting ante-mortem nature of injury at the level of neck. She firmly dismissed the suggestion that the injuries around the neck were caused due to her hanging by herself. She voluntarily explained that in case of suggested hanging the hyoid bone is broken and involvement of major vessels occurs which is missing in this case rather minor vessels of skin were involved and there was no deep sign of ligature. She further explained that as in this case ligature mark started from back side of the neck (occipital bone) towards hyoid bone 5 cm in size and 2 cm away from hyoid bone, hence, it is a case of homicide. She said in reply to a question of learned defence counsel that it is correct that no report regarding presence of finger print upon the neck of the deceased were mentioned but in the same breath she voluntarily explained that finger prints cannot be seen on skin. She categorically dismissed the bald suggestion that with the connivance of complainant she have issued false and fabricated postmortem report.
33. Now adverting to statement of defense, the accused persons have not recorded their statement under section 340(2), Cr.P.C. and accused in his statement recorded u/s 342 of Cr.P.C, in reply of question that why this case is against him and why the prosecution witnesses have deposed against him, he stated that infact complainant is greedy person who took money from him for several time through his deceased daughter Mst. Bibi and a few
days prior to this occurrence brother of his deceased wife came to his house and gave a message of his father to deceased Mst. Bibi that he (the complainant) demanded Rs 50,000/- more otherwise he would take her back to his house forever. On this the deceased became disturbed and perturbed. Due to attitude of her father and demand of money she committed suicide. The complainant due to his greedy nature to blackmail him and get desired demands filed this private complaint against him as well as his mother. The Pws are close relative of complainant. They deposed against him and his mother on the asking of the complainant due to his relationship which fact was also verified by the local police during investigation of this case and came to the conclusion that Mst. Bibi committed suicide. He also produced the documents ranging from Ex.DA to Ex.DE in his defence evidence ( the details of these documents have already been mentioned in paragraph no:19 of this judgment). Same defence plea was adopted by the co-accused Mst Bibi in her statement u/s 342 of Cr.P.C. 34. After thorough evaluation of evidence produced by the parties, the conduct of the accused could be easily adjudged, the statements recorded by the blood relatives of the deceased lady i.e. real father PW-1 and real uncle PW-2 who are natural witnesses and entirely well aware with the overall situation of the home affairs of the couple from solemnization of marriage to till the incident, as such, their depositions with regard to home affairs and the unnatural death of the deceased relationship would be natural and reliable on all counts, and could not be thrown out from the consideration merely on the basis of unseen occurrence. Even otherwise, their testimonies were further corroborated by the statement of independent witness PW-3 who
is the witness of last seen, has also corroborated the statements of PW-1 and PW-2 with regard to the ill-treatment of the accused towards deceased Mst. Bibi.
35. The defence during cross-examination mostly put the question to the witnesses that the complainant was a greedy person who demanded money from the accused through his daughter by threatening her to take her back in his home forever to her annoyance which perturbed and disturbed her and due to such reason the deceased suffers from depression and committed suicide. This defence plea just remained a bald version which was not only strongly dismissed by the pws to whom it was suggested through their cross examination and even otherwise it was a farfetched plea incompatible with common sense. How a father can take his daughter to that stage to mint money through her from his son-in law which caused such a huge depression forcing her to commit suicide and that too under the roof of her husband situated in other district. This plea is not only opposed to common sense and the ground realities but also completely negated by the medical evidence came through the testimony of the postmortem examiner CW-1 who testified that it was a case of homicide instead of suicide.
36. Now the next question arises that when the incident took place, the occurrence was unseen, but the same was occurred in the house of the accused where the deceased lastly residing with him and accused neither in his statement under section 342, Cr.P.C. nor during cross examination upon the pws especially upon the witness of last seen, took the plea that he had left his house and was not present in his house at the time of the occurrence. He
specifically stated that his wife committed suicide due to depression on account of demanding money by her father through her from her husband, but the defense has failed to prove its version through any sort of evidence, which also could not be done in our traditional society while such version of the defense was negated by the medical evidence whereby it was found that the cause of death of deceased was Asphyxia (suffocation) and homicide instead of suicide. The claim made by PWs regarding ill-treatment and cruelty due to the motive transaction meted by the deceased was not challenged and all these circumstances mentioned above connects the accused with the commission of offence because symptom and signs of case indicate that the death of deceased was not suicide, but was homicide. As per scaled site plan Ex.PD there was no single tool around the deceased to get support for hanging herself. Only bed under the ceiling fan from where she was shown hanging was mentioned and it is not possible for a lady to reach to the roof to hang by using the ceiling fan while standing on the bed without using any tool or chair onto it. It is also did not appealing to the prudent mind that without availability of such instruments near the dead body, she managed to hang herself with the roof of the residential room of the accused. Reliance in this regard is placed on the case of "Saeed Ahmed v. The State" reported in 2015 SCMR 710. Relevant portion whereof is reproduced as under:-
"In view of the aforesaid it could be safely concluded that the deceased was strangled to death, which rules out the possibility of a natural death or of suicide."
--- The Appellant also elected not to give evidence on oath under section 340(2) of the Code. In his statement under section 342 of the Code he simply declared his innocence and
stated that PWs. 6 and 7 had testified against him due to the fact that they were not happy with the marriage of the deceased with him and that they were not present in the house on the fateful night."
It was further laid down in this case law that with regard to vulnerable members of society, such as children, women and the infirm, who were living with the accused or were last time in his company, the accused ought to offer some explanation of what happened to them. If instead he remains silent or offers a false explanation he casts a shadow upon himself. This does not mean that the burden of proof has shifted onto the accused as it is for the prosecution to prove its case, however, in respect of the helpless or the weak that require protection or care it would not be sufficient for the accused to stay silent in circumstances which tend to incriminate him, and if he elects to do so he lightens the burden of the prosecution. Article 122 of the Qanun-e-Shahadat Order, 1984 too stipulates that if a particular fact is especially within the knowledge of any person the burden of proving that fact is upon him.
37. Since admittedly the deceased lady was lastly residing with the accused and even otherwise he did not dispute the presence of his deceased wife in his house till the time of incident and nothing was brought by the accused on record that even at the last night or early morning any untoward situation was arisen between the parties which caused the death of deceased. Under the such circumstances the accused could not be held innocent being the life partner and inmate of the deceased. Reliance in this regard is placed on the case of "Muhammad Akhram v. The
State" reported in 2003 SCMR 855 relevant portion whereof is reproduced as under:-
"Accused had neither denied his presence in his house on the day of occurrence nor offered any explanation as to how and under what circumstances his deceased wife while sleeping with him in a room of his house had sustained injuries with the sharp-edged weapon on the sensitive part of her body--Bare denial of accused of knowledge of occurrence and not offering the required explanation had provided a strong corroboration to the eye-witness account to prove his guilt--Ocular testimony was further corroborated by medical evidence and the recovery of Chhuri at the instance of accused which was found stained with human blood---No direct or circumstantial evidence was available on record to suggest that the accused had acted under sudden provocation---Possibility of exchange of words between the deceased and accused as husband and wife on family affairs would not permit the accused to take such a cruel step of killing his wife---Accused has not even taken any such plea in his defense---No leniency could be given to accused in matter of sentence who on a very petty dispute had committed the murder of an innocent and helpless woman---Leave to appeal was declined to accused in circumstances.---
38. This entire chain of events imposes a duty upon the accused to explain his position, especially when a vulnerable dependent i.e. Mst. Bibi his wife, met with an unnatural death inside the confines of accused's house, he is then under heavy onus to explain as to how his wife Mst. Bibi (deceased) met an unnatural death, though claimed by him a suicide while hanging through ceiling fan, which is otherwise contradicted as per medical and forensic reasons and was declared a homicidal death
and not the suicidal death. It was laid down in the case law reported as
PLD 2017 SC 681 (Asad Khan v. The State) that:
"It had been held by this Court in the case of ArshadMehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house. Reference can also be placed on case law reported as 2016 SCMR 1628 (Nazir Ahmad v. The State) wherein it has been held that:--
"4. It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death."
39. As per the proposition before this Court is regarding the murder of Mst. Bibi (deceased) in the confines of a house of the accused where the accused person was available at that time and no other witness or person had seen the occurrence directly, therefore, in such type of cases the quantum of evidence is different as of normal cases, I have seen the medical evidence which corroborates the entire scenario that the death is not suicidal rather it is homicidal, but in order to connect accused with the said incident of murder, this court has to see the entire case with reference to the Qanun-eShahadat Order, 1984, whereby Article 117 of the Order places a burden of proof upon a person who has to prove the existence of any fact. In such eventuality the prosecution is under heavy burden to
discharge its onus that Mst. Bibi (deceased) was murdered by accused but at the same time the provisions of Article 119 of the Qanun-e-Shahadat Order, 1984 also plays a significant role in this case when I consider the plea of accused who has taken the defence of a particular line from day one i.e. Mst. Bibi (deceased) had committed suicide and the suggestion put forward by the accused in the trial is on the same line, even otherwise, accused has taken this specific stance in his statement under Section 342 Cr.P.C. therefore, a particular fact has to be proved by accused as to whether Mst. Bibi (deceased) had committed suicide and this can only be proved by accused in terms of Article 119 of the Qanun-eShahadat Order, 1984 which read as under:
"119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
Similarly, Article 122 of the Qanun-e-Shahadat Order, 1984 is also relevant in this regard which is as under:
"122. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
At the cost of repetition in this case accused has taken the plea of suicide by his wife Mst. Bibi (deceased) and in such situation he has to discharge the burden under the exception taken by the apex Court in PLD 2017 SC 681 (Asad Khan v. The State), 2016 SCMR 1628 (Nazir Ahmad v.The State) and (Saeed Ahmad Vs. The State) 2015 SCMR 710.
40. The circumstances which stand proved on record and which rendered assistance in the determination of the question whether the death of the deceased was felonious and if so who was responsible for the same are, as under:-
(a) Mst. Bibi (since deceased) was the wife of accused who took him to family court to his annoyance and sought recovery of maintenance allowance, dowry articles and even dissolution of marriage;
(b) Mst. Bibi was succeeded in securing five marla plot of his mother and getting it transferred in her name as result of said litigation in the family court;
(c) She was also succeeded in getting bound accused to pay Rs 5 lakh in case he would torture her or desert her in future. Meaning thereby she remained subject to domestic violence at the hands of her husband.
(d) How these attainments on her part could be subsequently tolerated by her husband being member of the male dominating society which definitely kept on irking him;
(e) The deceased was living with accused and had met her death in his house;
(f) The accused himself never reported the death of the deceased to the police rather someone else whose name was not remembered to the I.O CW-2, informed the police regarding the occurrence;
(g) The explanation offered by accused for the death of the deceased being a case of suicide did not find support from the medical evidence and is in fact being belied by the same;
(h) The death of the deceased was a murder and was neither the result of an accident nor of suicide;
(i) The circumstance of last seen established by an independent witness PW-3 in a coherent manner;
(j) The circumstance of extra judicial confession brought on file through confidence inspiring testimony of PW-4;
(k) Close relationship of the complainant with the accused being father in law having no axe to grind against him to choose to see the father of children of his beloved deceased daughter go to gallows.
41. The entire background of the case proves the chain of evidence against accused if seen in the light of evidence of Dr. CW-1 who unequivocally declared in her testimony that it was not a case of suicide but is a case of homicidal death. The circumstances enumerated above which do stand established on record beyond any reasonable doubt are a clear pointer towards the guilt of the accused and they confirm the involvement and commission of offence leading towards
accused. All these facts further confirmed from the statement of
PW-3 who is independent witness of the chain of event and who had seen
accused at the place of occurrence last time in the manners already mentioned above whereas
accused has failed to explain his stance of suicide of his
wife Mst.
(deceased) in the room of his house as per his own plea. Since admittedly the deceased lady was lastly residing with the
accused and even otherwise he did not dispute the
presence of his deceased wife in his house till the time of incident and nothing was brought by the accused on record that even at the last night
or early morning any untoward situation was arisen between the parties which caused the death of deceased. Under the such
circumstances the accused could not be held
innocent being the life partner and inmate of the deceased therefore he is held responsible for the murder of his wife and he has done her to
death. therefore, he is convicted u/s 302 (b) of Pakistan Penal Code
1860. while co-accused Mst. Bibi who is admittedly an old aged lady and infirm lady and being so was not capable of strangulating a young lady to death and even otherwise being mother she could not join her hands with her son to strangulate her own daughter in law to death and see her young son go to gallows. Being mother of the culprit she might have been dragged into the criminal vortex by throwing the net wide which practice is customary in our society, therefore, while resorting to the principle of sifting the grain from chaff enunciated in reported as 2019 SCMR 79, 2017 SCMR 1645 and PLD of the charge while extending the benefit of doubt in her favour. She is on bail. Her surety is discharged from his case laws 2015 SC 145, I hereby acquit the lady accused namely Mst. wife of liability.
42. As for as question of quantum of sentence to be awarded to the convict is concerned, it also needs serious thought. It is an admitted fact that prosecution case hinges upon the circumstantial evidence and there was no eye-witness of the occurrence. It remained shrouded in mystery as to what actually happened between the husband and the wife soon before the occurrence which prompted the convict husband to strangulate his own wife to death. So treating all these facts as mitigating circumstances I proceed to award lesser penalty to the convict s/o and he is sentenced to life imprisonment u/s 302 (b) PPC with a benefit of section 382 (b) of Cr.P.C and with a direction to pay Rs 15 lac as compensation u/s 544-A of Cr.P.C to the legal heirs of the deceased Mst. Bibi which shall be recovered as arrears of land revenue from the estate of the convict, if he has. In case of default in payment of this amount, the
33
Vs.
etc
Sessions complaint case No.64 of 2017 & 08 of 2019.
The State VS
etc.
Sessions case No.24/2017 & 07/2019
convict will undergo 6 months simple imprisonment. He is on bail. His bail bonds are discharged. He is taken into custody and remitted to jail
to undergo the sentences awarded to him through this judgment. Copy of this Judgment be delivered to him free of cost forthwith.
43.
last worn clothes of deceased Mst.
Bibi consisting upon qameez P.1, Shalwar P.2, Dopatta P.3, brazier P.4 and the piece
of cloth which was around the neck P.5 ,piece of cable of mobile charger
C.2 may be returned to her legal heirs. The disposal of the above said goods/articles shall be made to the above effect after final result of
appeal/revision, if any. Copy of this Judgment be sent to the Incharge,
Prosecution Branch, District as required u/s 373 Cr.P.C. File
be consigned to record room after its completion.
Announced:
Malik Muhammad Zia-ul-Tariq Khokhar,
13.07.2019.
Addl: Sessions Judge,
.
Certified that this judgment consists of 33 pages, which have been dictated, read, corrected and signed by me.
Dated:
13.07.2019.
Addl: Sessions Judge,
.
|
Particle Count Standards
Accusizer ® SPOS system
AccuSizer ® customers often want to test system performance in order to verify that the system is working to specification. Entegris encourages these efforts and believes that a regular calibration/verification testing routine should be an integral component in owning these systems – either with testing by a certified representative or through internal testing. Particle size testing using a particle size latex (PSL) standard is an easy first step in tracking system performance. Checking the count accuracy is also a good idea, but slightly more complicated and we often spend a fair amount of time guiding customers through the suggested procedures presented in this technical note.
INTRODUCTION
—
The AccuSizer is both a particle size analyzer and a particle counter, based on the principle of single particle optical sizing (SPOS). This principle requires sensor calibration using particle size standards. The calibration procedure relates pulse height generated as the particle passes through the sensor to particle size. A typical AccuSizer sensor is calibrated at the factory using 10 – 13 size standards across the dynamic range of the sensor. Once at a customer location the same complete size calibration can be performed, or one or more size standards may be used to test if the calibration is still accurate after some period.
We encourage customers to test the calibration using a size standard on a regular basis, the frequency being based on a risk assessment of how the data is used by the customer. A researcher using the system just as a quick check of approximate size, may test the calibration once a year, while a plant that runs their process based on the particle size result may test daily. Most customers check the sensor calibration every six months.
In addition to the particle size calibration, some customers also want to test the count accuracy of the system. The size and count accuracy are related since a shifted size calibration will also alter the count at a given size.
PARTICLE COUNT STANDARDS —
Far fewer particle count standards are available compared to the number of size standards. The three most validated count standards were created with the USP <1788> test 1 in mind.
2
* The USP Particle Count Set
* The Micro Measurement Labs Particle Size/Count Standard 3
* The Thermo Fisher Scientific Pharm-Trol Count Precision Size Standards 4
These are all 15 μm nominal size standards where the concentration has also been tested and certified. The particle count/mL is typically between 3100 – 4400. The official particle count test in USP <1788> instructs the user to measure a blank, and then the count standard. The pass/fail criteria are based on the following equations:
* (Average count from the standard – average count from the blank)/sample volume
* Counts >10 μm/counts >15 μm
These calculated values must lie between the ranges stated on the count standard certificate. Systems passing this properly documented testing process can claim to be verified using the highest possible standard. When using the AccuSizer this count accuracy test should be performed using the SIS sampler with no dilution.
The official test described above is fairly expensive and some customers wish to verify count accuracy using a less formal procedure. Other customers wish to verify count accuracy at sizes other than 15 μm.
Entegris understands and supports these efforts, but cannot accept data from any random bottle of standards a customer picks up and decides to test with. Some customers take a particle size standard, measure the sample and then ask why the concentration does not match their expectations. This can lead to protracted discussions requiring considerable investigation into the sample used, measurement procedure, and result interpretation. Let's start with which samples are appropriate or inappropriate.
INAPPROPRIATE STANDARDS —
Most of the inappropriate data sent to Entegris was collected using particle size standards from Thermo Fisher Scientific (previously Duke Scientific Standards). These are perfectly fine particle size standards, and the concentration has been tested, but these samples were never meant to act as a count standard.
Samples such as the Thermo Fisher 3000 Series Nanospheres and 4000 Series Microspheres are particle size standards. They are appropriate for testing the AccuSizer sensor calibration to check if the expected size result is achieved when introduced to the system. These samples are not appropriate for testing the concentration value reported by the AccuSizer. The concentration in these samples are nominally around 1%, ranging from 0.2 – 4.8%. The concentration value is determined by calculating the known mass of material in a known volume and then reporting as approximate particles/mL. Although the standard manufacturer may be extremely experienced and operating under rigorous quality procedures, the concentration values reported (such as 1×10 7 particles/ mL) are approximate only and are not certified values.
APPROPRIATE STANDARDS
—
Other standards are available from Thermo Fisher with values for both size and concentration that are appropriate for testing both size and count accuracy of the AccuSizer. These include the Pharm-Trol, Count-Cal, Validex, and Ezy-Cal samples. The size values for these standards are traceable to the standard meter through NIST. The concentration values for these standards are generated by measurement on certified systems and the values are appropriate for verifying the concentration results from the AccuSizer. No one can say a count value is NIST traceable to the meter – there is no way possible to achieve such a result — but these standards are acceptable options for testing the concentration values generated by the AccuSizer.
Micro Measurement Labs produces a count and size standard specifically for the AccuSizer. Entegris often refers to this sample as the "tri-mix" (see Figure 1) because three distinct size peaks are mixed into one container. Each bottle is filled with the proper mixture of particle standards in a proprietary solution and tested by validated methods including an SPOS particle counter and/or microscopic (optical or SEM) methods. The certificate of analysis (C of A) for this standard includes both the mean size peak and the expected count limits for each of the three sizes – typically 0.8, 2, and 5 μm.
RESULT INTERPRETATION —
Only the USP <1788> test includes official pass/fail criteria for particle count accuracy testing. Setting the expectations for less official testing is left up to the manufacturer and customer. It is not appropriate for customers to set their own internal specifications, measure as they please, and then call to question why these values were not met. The reasons why this is true should be obvious, but they include.
* Only officially published, ISO, ASTM, USP, etc. testing protocols have been reviewed and approved by both customers and instrument manufacturers
* Entegris would have to test a standard internally before we could state, with confidence, that the results lie within an acceptable specified range. We do not have the resources, or desire, to test all of the hundreds of available particle size standards.
* The calibration curve for the sensor would need to be current and accurate for a count test to also be accurate. While Entegris supports customers checking their own calibration curve, only factory tested, or field tested by an Entegris representative systems, are known to be in proper calibration.
2
But if a customer uses an appropriate standard on a recently calibrated system, what should the pass/fail criteria be? This answer depends both on the standard used and system being tested. The highest count accuracy is achieved when no sample dilution is involved - the AccuSizer SIS system. The AccuSizer APS and AD systems perform automatic dilution and generate accurate concentration data, but these concentration results are not as precise as SIS (no dilution) results. To understand why this is true, consider injecting 100 μL of the USP count standard into an AccuSizer AD system. To begin with, we are now sub-sampling from the original container rather than drawing the sample directly from the original into the sensor—error source #1. The AccuSizer then checks the concentration and decides if dilution is required. Once the concentration is within the desired range, the measurement begins. During this period, the sample is diluted below the originally intended value. Since the count rate is substantially lower, the result statistics are worse than the undiluted sample— error source #2. When testing on an AccuSizer APS the sample may go through two-stage dilution, increasing the error source #2. When testing the AccuSizer AD, we add ± 10% to the expected result. When testing the AccuSizer APS we add ± 13% to the expected result.
In addition to error sources #1 and 2, the uncertainty of the concentration value from the standard must also be added to the final pass/fail criteria. So if a customer is using a Thermo Fisher Count Cal standard on an AccuSizer AD system the pass/fail would be: 3000 particles/mL ± 10%, plus ± 10% when using the AccuSizer AD system = 3000 ± 20%, or 2,400 – 3600 particles/mL
When testing the AccuSizer AD and APS systems we recommend using the Micro Measurement Labs count and size standard. The pass/fail criteria for this standard appears on the C of A. A typical range of results for this standard is shown in Figure 2.
When using this standard on either the AccuSizer AD or APS, the pass/fail criteria would be the exact values shown on the C of A. For example the reported concentration for the 5 μm peak would be between 108,600 and 169,861 particles/mL as seen in the last row of the C of A shown in Figure 2.
Figure 2. C of A for the Micro Measurement Labs particle count and size standard
3
CONCLUSIONS
—
The AccuSizer SPOS system is a calibrated technique requiring regular testing to keep the calibration current and valid. Once the particle size calibration has been updated and verified, some customers like to also test the count accuracy. Official standards and procedures exist only when testing specific count standards on the AccuSizer SIS system with no dilution. Unofficial count accuracy testing is acceptable, but the procedures and results are outside of the control of Entegris unless performed by our own personnel on known samples. We remain happy to support all customer efforts, but hopefully this document explains why it is impossible to officially review and comment on count accuracy tests on inappropriate samples following uncertain procedures.
References
1 Methods for the Determination of Particulate Matter in Injections and Ophthalmic Solutions Light Obscuration Particle Count Test/ Instrument Standardization tests/Particle Counting Accuracy - System Suitability, https://www.uspnf.com/ notices/1788-determination-of-particulate-matter
2 http://www.usp.org/reference-standards/find-reference-standard
3 http://www.mmlabs.com/particle-countsize-standards.php
4 http://www.thermoscientific.com/en/product/pharm-trol-countprecision-size-standards.html
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–
www.elsevier.com/locate/ynimg
NeuroImage 40 (2008) 1392 1401
Socioeconomic status predicts hemispheric specialisation of the left inferior frontal gyrus in young children
Rajeev D.S. Raizada, a, ⁎ Todd L. Richards, b Andrew Meltzoff, a and Patricia K. Kuhl a
a Institute for Learning and Brain Sciences, University of Washington, Box 357988, Seattle, WA 98195, USA
b
Department of Radiology, University of Washington Medical School, Seattle, WA 98195, USA
Received 17 August 2007; revised 12 December 2007; accepted 10 January 2008
Available online 29 January 2008
Reading is a complex skill that is not mastered by all children. At the age of 5, on the cusp of prereading development, many factors combine to influence a child's future reading success, including neural and behavioural factors such as phonological awareness and the auditory processing of phonetic input, and environmental factors, such as socioeconomic status (SES). We investigated the interactions between these factors in 5-year-old children by administering a battery of standardised cognitive and linguistic tests, measuring SES with a standardised scale, and using fMRI to record neural activity during a behavioral task, rhyming, that is predictive of reading skills. Correlation tests were performed, and then corrected for multiple comparisons using the false discovery rate (FDR) procedure. It emerged that only one relationship linking neural with behavioural or environmental factors survived as significant after FDR correction: a correlation between SES and the degree of hemispheric specialisation in the left inferior frontal gyrus (IFG), a region which includes Broca's area. This neural–environmental link remained significant even after controlling for the children's scores on the standardised language and cognition tests. In order to investigate possible environmental influences on the left IFG further, grey and white matter volumes were calculated. Marginally significant correlations with SES were found, indicating that environmental effects may manifest themselves in the brain anatomically as well as functionally. Collectively, these findings suggest that the weaker language skills of low-SES children are related to reduced underlying neural specialisation, and that these neural problems go beyond what is revealed by behavioural tests alone. © 2008 Elsevier Inc. All rights reserved.
Introduction
Many factors interact to shape children3s language development and reading ability (Goswami, 2006; Rayner et al., 2001). Behavioural tests have been a rich source of insights into children3s
⁎
Corresponding author.
E-mail address: email@example.com(R.D.S. Raizada).
Available online on ScienceDirect (www.sciencedirect.com).
language and reading skills, but they cannot, on their own, reveal the mechanisms underlying them. Moreover, it can be difficult to determine whether problems on a language task are due to limitations of competence or of performance. Performance factors such as attention, motivation and response-speed can result in lower scores, even if the neural information processing necessary to carry out the task is successfully taking place. Neuroimaging studies offer an opportunity to probe the brain3s language areas directly, provided that a given task engages them sufficiently to produce measurable activation. Thus, neuroimaging may potentially allow us to tease competence and performance apart.
Environmental factors also play a major role in shaping children3s language and reading skills. One set of such factors that can be quantified, albeit far from perfectly, is socioeconomic status, or SES (Hollingshead, 1975). SES has consistently been found to have a major effect on children3s language skills (Bowey, 1995; Hoff, 2003; Huttenlocher et al., 2002; Noble et al., 2007; Walker et al., 1994). For example, Noble et al. (2007) recently found that SES explained 32% of the variance in children3s scores on phonological and vocabulary tests.
In the present study, we set out to uncover which out of a broad set of neural, behavioural and environmental variables are the most important in contributing to reading-related language skills. Our subjects were children aged five years old, not yet in kindergarten. Each child was given a battery of standardised cognitive and linguistic tests: the Peabody Picture Vocabulary Test (PPVT) (Dunn and Dunn, 1997), the Clinical Evaluation of Language Fundamentals test (CELF) (Semel et al., 1995), the Wechsler Preschool and Primary Scale of Intelligence (WPPSI) (Wechsler, 1989), and the Phonological Awareness Test (PAT) (Robertson and Salter, 1995). The subcomponents of these tests are listed in the Materials and methods. In addition, the children3s socioeconomic status (SES) was recorded using the Hollingshead index (Hollingshead, 1975), which is the most broadly used SES measure, and which assesses factors such as parental education level and occupation to produce an overall SES score.
To investigate neural factors, we scanned the children with fMRI while they were performing a rhyme-judgment task of
auditorily presented monosyllabic words and non-words (Richards et al., 1999), with a control task of auditory tone discrimination. Rhyme-tasks have been found to be sensitive measures of phonological awareness, which is strongly predictive of subsequent reading ability (Bryant et al., 1989).
Materials and methods
Subjects
Our subjects were children 5 years of age and were all in preschool but not yet in kindergarten. Before any fMRI-scan visits, each child was given a session in a mock scanner in order to familiarise them and also to screen out those who were not comfortable with the procedure. Out of 30 children who tried the mock scanner, 20 went on to try the real scanner, 15 completed the fMRI scan, and 14 yielded usable fMRI data. Of these 14, seven were female, all but one were right-handed, the age range was 5 years 0 months to 5 years 8 months, and the average age was 5 years 4 months. The University of Washington Human Subjects Institutional Review Board approved this study, and each subject (as well as parent/guardian) gave written, informed consent.
Standardised tests
SES was calculated for each child3s family using the Hollingshead index (Hollingshead, 1975). The standardised tests administered were the Peabody Picture Vocabulary Test (Dunn and Dunn, 1997), the Phonological Abilities Test (PAT: rhyming, segmentation, isolation, deletion, blending; Robertson and Salter, 1995), the Clinical Evaluation of Language Fundamentals test (CELF: core language, receptive, expressive, language content, language structure, recall sentence context; Semel et al., 1995) and the Wechsler Preschool and Primary Scale of Intelligence (WPPSI: Verbal IQ, Performance IQ, Processing Speed IQ, Full Scale Intelligence Score, General Language Score, Wechsler, 1989).
MRI
The fMRI was carried out in a 1.5T GE Signa scanner. Twenty one axial slices (6 mm thick, 1 mm gap) were collected using a gradientecho echo-planar pulse sequence: repetition time, TR=3000 ms; echo time, TE=50 ms, field of view=240 mm, matrix size 64×64. Each child performed one fMRI run, consisting of 114 TRs, lasting 5 min 42 s in total. The first three volumes were discarded to allow the scanner time to equilibrate.
The tasks carried out during the scan were judgment of whether auditorily presented monosyllabic words and non-words rhymed, and a control task of auditory tone discrimination (Richards et al., 1999). The tasks were presented in alternating blocks, four blocks of each task, with each block lasting 30 s and containing five trials. Six seconds before each block, the children received visual and auditory instructions telling them which task was about to follow.
High-resolution T1-weighted scans were also acquired for anatomical localisation. These scans used a 3D fast spoiled gradient echo pulse sequence. Imaging parameters were as follows: TR=11.1 ms, TE=2.2 ms, flip angle 25°, field of view=240 mm, with 124 sagittal slices, slice thickness 1.4 mm, in-plane voxel size 0.9375×0.9375 mm. The entire acquisition time was 4 min 36 s. While the structural scan was being carried out, the children watched a DVD movie of their choice.
Voxel-based morphometry
Segmentation of the T1 anatomical scans into grey and white matter was performed using SPM5, with the addition of Christian Gaser3s VBM5 Toolbox for SPM5, version 1.03 (Gaser, 2007).
Statistical analysis
To look for correlations between brain, behaviour and the environment, average fMRI activation was calculated for each task condition and brain hemisphere, using anatomically defined regions-of-interest (ROIs) from a standard atlas (Tzourio-Mazoyer et al., 2002). For our ROIs, we chose regions known to be involved in language processing: Heschl3s gyrus, inferior frontal gyrus (opercular, orbital and triangular parts separately, and also all three together), inferior parietal cortex, middle temporal gyrus, superior temporal gyrus, supramarginal gyrus, and the angular gyrus. For each ROI, we calculate the activations for each condition, and also the following derived measures: rhyme-task minus tone-task, left minus right hemisphere, and a hemispheric laterality index. The laterality index was calculated using the formula (L − R)/(|L|+|R|).
The calculated correlations were excluded if they were driven by outliers, defined as lying more than two standard deviations from the mean. The false discovery rate procedure was implemented in the standard manner: the p-values were sorted in ascending order, p1, p2,…, pi,…, pV where V is the total number of correlations in the matrix, and then the threshold p-value was the largest pi such that pi ≤ q × i/V , where q is the desired corrected probability value, in this case 0.05 (Benjamini and Hochberg, 1995; Genovese et al., 2002).
Preprocessing and statistical analysis of the data were performed using SPM2 software (Wellcome Dept of Cognitive Neurology). Preprocessing included motion correction, normalisation to the MNI305 stereotactic space (interpolating to 3 mm cubic voxels) and spatial smoothing with an 8 mm isotropic Gaussian kernel. Statistical analysis was performed using the general linear model. Global signal scaling was not applied in order to prevent spurious deactivations. Comparisons of interest were implemented as linear contrasts. This analysis was performed individually for each subject, and contrast images for each subject were used in a second-level analysis treating subjects as a random effect.
Results
Subject diversity
The SES scores in our subjects ranged from 31.5 (the parents3 professions were firefighter and shop assistant, and they did not have education past Community College) to 66 (one or both parents had graduate degrees and worked in a skilled professional job, e.g. aeronautical engineer). Thus, although our efforts to recruit subjects from a broader range of socioeconomic strata than are typically included in university studies were successful, the spread could best be described as spanning from "blue collar " to "white collar." Similarly, the children3s scores on standardised tests tended to be slightly above the value of 100 that is meant to capture the population mean, but the overall variability of scores was sufficient to span a workable range. For example, the mean CELF Core Language score in our sample was 109.8, but the spread ranged from 86 to 127. Thus, our sample spanned a reasonable range of SES and standardised test scores; ultimately, however, a broader range would be desirable.
Future studies testing the generalisability of the results presented here should aim to include even greater diversity.
ROI analysis
The fMRI activation levels were calculated in a set of regions of interest, or ROIs, covering brain areas known to be important for language (see Materials and methods). For each ROI, we calculated the activation for each task, and also the following derived measures: rhyme-task minus tone-task, left minus right hemisphere, and a hemispheric laterality index. The fMRI scans also provided us with additional behavioural variables: each child3s average head motion, and the percentage correct for the rhyme and tone tasks during the practice and test runs.
False discovery rate multiple comparisons correction
The large number offactors interacting to shape children3s language development raises a serious challenge for research with this sort of design. A study can focus narrowly on just one or two factors, but then risk missing key mechanisms, or it can investigate a broader set of measures, thereby incurring the statistical problem of needing to separate out, from amongst multiple comparisons, the meaningful results from those arising just by chance. Classical multiple comparison tests such as Bonferroni correction tend to come at a great cost to statistical power and therefore reintroduce the risk of missing important effects that using the broader set of measures was supposed to avoid.
problem by providing a rigorous and easily implemented multiple comparisons correction procedure, without excessive loss of statistical power. The FDR method, which has recently started to be used widely in functional neuroimaging (Genovese et al., 2002) and also in genetics research (Broberg, 2005), provides a statistical threshold such that for any individual finding there is only a specified probability (e.g., p b 0.05) of it being a false positive. In contrast, traditional more conservative approaches such as Bonferroni correction yield thresholds for which the chance is p b 0.05 that there is even a single false positive result anywhere in the study sample. In the Supplementary data, the implementation of the FDR procedure is described and graphically illustrated (Supplementary Fig. 1), and the strengths and limitations of the present FDR test are discussed in detail.
FDR-corrected correlation matrix
We applied the FDR method to our set of neural, behavioural and environmental variables inorder to find the mostimportant interactions between them. The matrix of correlations between the variables was calculated, was then statistically corrected by removing the spurious outlier-driven correlations, and finally had a statistical threshold applied to it, corresponding to a false discovery rate of p b 0.05 (equal to an uncorrected value of p b 0.00108). The resulting thresholded correlation matrix, showing the significant correlations between the 145 different variables,isshown in Fig. 1. An unthresholded version of this same correlation matrix, plotting the raw p-values on a continuous grey-scale colour map, is shown in Supplementary Fig. 2.
The recently developed statistical technique of calculating a "false discovery rate," or FDR (Benjamini and Hochberg, 1995), solves this
The data reveal many statistically significant correlations within the behavioural and environmental variables, shaded in blue, and
Fig. 1. The matrix of correlations between the 145 neural, behavioural and environmental variables. The correlations were statistically thresholded at a multiple comparisons corrected p-value of pb 0.05, using the false discovery rate (FDR) method (Benjamini and Hochberg, 1995; Genovese et al., 2002). The behavioural and environmental variables are grouped together, as are the fMRI variables. As a result of this grouping, quadrant (a) contains significant correlations within the behavioural and environmental variables, shaded in blue; quadrant (d) contains significant correlations within the fMRI variables, shaded in grey; quadrants (b) and (c), which are symmetrically identical, contain the significant correlations between the behavioural/environmental variables and the fMRI data, shaded in yellow. Only one such correlation survives FDR correction: the correlation between SES and the hemispheric asymmetry of rhyme-task activation in the inferior frontal gyrus. This correlation is marked by the yellow arrow in quadrant (c). Note that the thresholded correlation matrix shown here indicates only whether a given entry in the correlation matrix passes or fails the FDR significance test, and hence it does not depict actual correlation values or p-values themselves. An unthresholded version of this same correlation matrix, plotting the raw p-values on a continuous grey-scale colour-map, is shown in Supplementary Fig. 2.
even more within the fMRI variables, shaded in grey. However, only one correlation between the behavioural/environmental variables and the fMRI data survives FDR correction: the correlation between SES and rhyme-task left-minus-right activation in the inferior frontal gyrus (henceforth referred to as the IFG asymmetry). The data underlying this correlation from all fourteen children are shown in the scatterplot in Fig. 2b.
Correlations with SES of the left IFG, right IFG, and left-minus-right IFG
An interesting and at first sight somewhat counterintuitive aspect of our data is that, although the left-minus-right IFG activation in the rhyme-task correlates strongly with SES, the activations in the left and right hemispheres considered individually are much less strongly
correlated with SES. This is illustrated in Supplementary Fig. 3, which shows scatterplots of the correlations of the individual hemispheres and also the left-minus-right hemispheric activation difference.
A likely explanation for this result is that baseline fMRI activation values often show large variability across subjects. The average activation with a single ROI from a given subject will reflect this variability. However, by taking two measurements from within each subject and computing the difference between them, much of this intersubject baseline variability is canceled out. The left-minusright activation is of course just such a within-subject subtraction. This left-minus-right measure should therefore suffer from much less baseline-variability noise than the single-hemisphere activations, thus allowing correlations with environmental variables such as SES to manifest themselves more cleanly.
Correlations of subparts of IFG
Although Broca3s area occupies much of the left inferior frontal gyrus, the two are not identical. Broca3s area is defined by its function and cytoarchitecture rather than by gross anatomical landmarks, and it varies significantly in location from person to person (Amunts et al., 1999). Therefore, in order to measure activation in a consistent way across our subjects, we used predefined anatomical regions of interest (ROIs) from a standard anatomical atlas (Tzourio-Mazoyer et al., 2002). For sensory or motor areas, separate functional localiser scans are sometimes used in order to try to identify the region3s location in each individual subject (Pulvermuller et al., 2006). However, higher level brain areas do not lend themselves to isolated stimulation of this sort. Moreover, for young children scanning time must be kept brief. Therefore, atlas-based anatomical ROIs offered the best method of consistent across-subject region selection.
The ROIs that we selected for study were the main brain areas known to be involved in speech and language processing: Heschl3s gyrus, the superior temporal gyrus, the middle temporal gyrus, the supramarginal gyrus, the angular gyrus, the inferior parietal cortex, and the inferior frontal gyrus (orbital, opercular, and triangular parts), in both the left and right hemispheres in all cases. Broca3s area is generally considered to be approximated by the combination of the opercular and triangular parts (Brodmann3s areas 44 and 45, respectively). Given the existence of intersubject anatomical and functional variability and the imperfect fit of adult atlases to children3s brains, predefined anatomical ROIs can at most hope to capture as many of the individual subjects3 Broca3s areas as possible.
To investigate the relations between SES and Broca3s area in more detail, we calculated the average signal in each of the three IFG regions individually, in the union of the opercular and triangular parts, and in all three together. The locations of these regions in the brain, and the relationship between SES and IFG asymmetry, are shown in Fig. 2.
The correlation between SES and the degree of asymmetry (calculated by left-minus-right rhyme-task activation) was computed separately for each of these three IFG subregions, as shown in Fig. 3a. As can be seen from that figure, the union of all three IFG regions together correlates best with SES, followed by the triangular–opercular combination, and then the individual IFG subregions: triangular, then opercular, and lastly orbital. It might at first sight seem surprising that the union of all three IFG regions correlates better with SES than the triangular–opercular combination, which should notionally correspond more closely to Broca3s area. A likely explanation for this is that, due to anatomical and functional variability, some of the children3s individual Broca3s
Fig. 3. (a) The correlations of the different subparts of the IFG with socioeconomic status. (b) The partial correlations between SES and IFG asymmetry, after removing the effects of various standardised test scores. The test that was partialled out is marked on each bar, with the leftmost bar showing the correlation without any partialling and the rightmost bar showing the effect of partialling out the four test scores simultaneously.
areas extend beyond the more restrictive triangular–opercular ROI and that the union of all three IFG regions therefore succeeds better at encompassing all of the individual subjects3 actual Broca3s areas, albeit at the cost of also including some non-Broca3s tissue.
Partial correlations to factor out language skills
This strong correlation between SES and specialisation in the left IFG, emerging as the only significant correlation between the neural and the environmental and behavioural variables, raises three key questions. Is the SES/left-IFG link merely what would be predicted from known correlations between SES and behavioural language skills? Is the fMRI revealing a relationship between SES and language processing that purely behavioural tests are unable to reveal? Finally, is there a causal connection between SES and the left IFG that operates via non-linguistic mechanisms?
If the SES/left-IFG link goes no further than what would be predicted from known correlations between SES and behavioural language skills, then partialling out the effect of scores on standardised language tests should abolish, or at least greatly weaken, the link. However, this is not what we observed. In fact, the SES/left-IFG link remains significant, even after correcting for the effects of all the language-score measures that are most strongly correlated with either SES or IFG asymmetry.
To carry out the partial correlation analysis, we selected all the standardised test scores that correlated at p b 0.05 (uncorrected) with either or both of those measures. These were: WPPSI Verbal IQ, WPPSI General Language Score, PAT phoneme deletion, and the Peabody Picture Vocabulary Test. The results of partialling out these variables are shown in Fig. 3b. The correlation between SES and IFG asymmetry remains significant at p b 0.05, regardless of which of these four measures is partialled out. Indeed, in the worst case, namely partialling out the Peabody Picture Vocabulary Test, the correlation just barely misses the significance level of p b 0.01. Moreover, the correlation remains significant at p b 0.05 even when all four of the above measures are partialled out simultaneously.
Two measures that might, a priori, have been expected to correlate with SES and IFG asymmetry were percentage correct in the scanner rhyming task and the PAT Rhyming score. However, these measures were found to correlate only weakly or not at all with SES and IFG asymmetry and hence would have been unable to act as confounding factors. (Scanner task percentage—correct: corr. with SES, r =0.35, p N 0.2, corr. with IFG, r =0.065, p N 0.8; PAT Rhyming score: corr. with SES, r = −0.029, p N 0.9, corr. with IFG, r = −0.030, p N 0.9). Although the PAT Rhyming score did not correlate with SES or the IFG, it did show a relation (r =0.68, p =0.011 uncorrected) to rhyme-task activation asymmetry in a different language area, the supramarginal gyrus, which is known to be important in reading and dyslexia (Simos et al., 2000).
The low correlation between the children3s behavioural performance in the scanner and SES or IFG asymmetry is likely due to the fact that some of the children seemed to press the response button randomly when in the machine, despite having been familiarised with the task beforehand, and also despite showing good understanding of rhyming outside of the scanner in the standardised tests. In 5-year-old subjects, this noncompliance is perhaps unsurprising. Our fMRI results suggest that the language areas of such subjects were indeed successfully processing the rhyme-task but that this did not always translate into correct button-presses. Handedness was also not a factor. Only one of the children was left-handed and that child had left-minus-right IFG activity greater than the group average. Age was also not a factor: the children3s ages did not correlate with SES (r = − 0.05, p N 0.85) or with IFG asymmetry (r =0.15, p N 0.6), and the spread of the age range was small: 5 years to 5 years 8 months.
Returning to our three questions above, our results, as shown in Fig. 3b, answer the first one in the negative: the SES/left-IFG link is not merely what would be predicted from known correlations between SES and behavioural language skills. Although some of the behavioural measures correlate well with SES and also well with the left IFG, the removal of the effect of any of them individually, or even of all of them together, fails to rob the SES/ left-IFG link of statistical significance.
Further exploration of the SES/left-IFG link: correlations with neuroanatomy
The primary purpose of this study was to investigate relations between the environment, behaviour, and language-related neural
processing in children. However, neuroanatomical differences across individuals can also correlate with variations in linguistic ability and hence are also of potential interest, although static anatomy tends to reflect processing differences to a less degree than does functional activation.
Given the strong correlation between SES and inferior frontal cortex that emerged from the fMRI data, we investigated this area further by quantifying its neuroanatomy. Specifically, we wished to test the hypothesis that the left IFG region, whose activation3s hemispheric asymmetry was revealed to be related to SES in the above analyses, might also show a connection with SES at the anatomical level. Other studies of reading in children have demonstrated that combining structural and functional analyses can be a powerful approach (Hoeft et al., 2007). For the neuroanatomical analysis, we followed the same approach used in the fMRI analysis of using predefined anatomical ROIs from the Tzourio-Mazoyer et al. (2002) atlas, thereby ensuring uniformity in the anatomical parcellation across subjects and, by pooling across larger ROIs, helping to avoid finding spurious small local neural intersubject differences. Specifically, the subjects3 anatomical scans were segmented into grey and white matter, and the volume of each tissue type within each ROI was calculated. Similar ROI-based volumetric approaches using the Tzourio-Mazoyer et al. (2002) atlas have been applied in studies of schizophrenia (Lee et al., 2007; Lopez-Garcia et al., 2006; Mitelman et al., 2007, 2005, 2003), of autism (Rojas et al., 2006) and of dementia (Rosano et al., 2005).
A potential difficulty for analysing the anatomical scans of young children is that the process of segmentation into grey and white matter can be quite sensitive to image noise and artifacts caused by head motion. To address this problem, we used the VBM5 Toolbox for SPM by Christian Gaser (Gaser, 2007), which uses Hidden Markov Random Fields to reduce the occurrences of artifactual "speckles" of one tissue type inside another. Using this toolbox, we found that despite the presence of noise in several of the images, all the children3s T1 scans gave good quality segmentations. All fourteen segmentations are shown in Supplementary Fig. 4.
It was found that both grey matter volume and white matter volume in the left IFG showed marginally significant correlations with SES, as is shown in Fig. 4. This therefore weakly confirms the above hypothesis that this region would be relatable to SES not only functionally but also anatomically. It seems likely that a larger sample of children might suffice to push the marginally significant correlation below the p b 0.05 threshold, and it would be interesting to explore this in future work.
The functional MRI data did not generate comparable hypotheses about the other ROIs analysed inthe study, but for control purposes we also calculated their grey and white matter volumes,the corresponding correlations with SES, and also the correlations for a left-minus-right derived volume measure. It was found that no ROI outside of the left IFG had a stronger correlation with SES in any of these measures. The only stronger correlations that emerged were from subparts of the left IFG itself: the grey matter in left IFG orbital part had a slightly stronger correlation, and for white matter the compound left opercular–triangular subpart was more strongly correlated with SES than was the whole IFG region comprising all three subparts. The right-hemisphere IFG correlation with SES was weaker, both for grey matter ( p =0.16) and white matter ( p =0.25), and the left-minus-right IFG measures were quite uncorrelated with SES (grey matter: p N 0.7, white matter: p N 0.35). Histograms showing the distribution of all the ROIs3 correlations and the positions of the left IFG results in that distribution are shown in Supplementary Fig. 5.
In a study of the anatomical left-hemisphere versus righthemisphere asymmetry of the temporal plane in 11-year-old children, Eckert et al. (2001) found that greater asymmetry was predictive of increased phonological awareness skills, but that this anatomical measure was not related to SES. In our data, we also did not find any correlation between SES and the measures of temporal lobe ROIs. However, given the difference in our subject age groups (5 years vs. 11 years) and the differences in anatomical measures (volume vs. asymmetry), it is unclear whether these two negative results are strongly connected.
Discussion
The present study investigated a broad range of behavioural, neural and environmental factors involved in 5-year-old children3s language skills and found that the strongest relationship amongst them was between SES and the degree of hemispheric specialisation in the left IFG. This neural–environmental link remained significant even after controlling for the children3s scores on the standardised language and cognition tests. Exploring the left IFG3s relation to SES further, we found that its grey and white matter
volumes showed marginally significant correlations with SES, suggesting that the link may manifest itself anatomically as well as functionally.
These results highlight the key advantage gained by adding neuroimaging to purely behavioural measures. It is likely that many developmental processes affect particular brain areas, such as Broca3s, with specificity. However, in behavioural tests, we are testing the whole person; no matter how refined the test, the score will be some compound function of perception, cognition, attention and motor control. With fMRI, we have the luxury of being able to probe the response of the left IFG directly, without needing to pass through the complex filter of behavioural responses. From this, the answer to our second question follows: the fMRI is indeed revealing a relationship between SES and language processing that the purely behavioural tests fail to show.
Possible causal links
The last of our three questions, however, remains so far unanswered: is there a causal connection between SES and the left IFG that operates via non-linguistic mechanisms? The fact that the SES/left-IFG link goes beyond what would be predicted from the language tests raises the possibility that SES may affect the brain not only via linguistic mechanisms, but also via extra-linguistic causal pathways, such as nutrition, quality of health care, and stress. In nutrition-related measures, at least, our data reveal no gross effects: the children3s weights did not correlate with SES (r =0.10, p N 0.7). In order to account for our data, any extralinguistic factors would have to affect the brain without impacting upon language test scores. Although perhaps unlikely, such a possibility cannot be ruled out a priori. It could also in principle be possible for such mechanisms, despite being non-linguistic, to impact more upon Broca3s than they do upon other brain areas; higher level processing, such as is carried out in Broca3s area, is often especially vulnerable to environmental adversity.
Although extra-linguistic mechanisms linking SES to Broca3s development may well exist, there is no shortage of linguistic causal pathways that could also connect the two. Language development is strongly affected by the richness of the linguistic environment in which a child is raised (Kuhl, 2004). One of the key variables measured in the Hollingshead SES scale is the education level of the child3s parents, and greater education is predictive of richer parental vocabulary and syntax, of more books in the home, of more help at home with reading, and of several other factors that could all contribute to a child3s language development (Bowey, 1995; Hoff, 2003; Huttenlocher et al., 2002; Noble et al., 2007; Walker et al., 1994). Although the children in our study spanned a fairly large range of the socioeconomic spectrum, it would be desirable for follow-up studies to include an even broader range, especially at the lower end of the scale, where language difficulties are likely to be more pronounced.
In order to explore hypothesised causal connections properly, future follow-up studies would need to be both longitudinal and interventional (Bradley and Bryant, 1983). An interesting possible manipulation would to be select children whose test scores fall into a narrow range but who span a broad spectrum of SES. Any differences in brain activation observed across these children would therefore presumably be attributable to variations in SES rather than performance. Conversely, by selecting children from a narrow range of SES but whose test scores vary widely, the effect of SES on brain activation could be experimentally controlled for. In the present study, partial correlation analyses attempt to achieve similar controls using post hoc statistical methods. However, with sufficiently large and diverse sample sizes, future studies may be able to achieve these direct and more powerful empirical controls instead.
Development of asymmetry in Broca3s area
In the present study, we examined the average activity in several language-related areas (see the Materials and methods section for a full list) and considered the activation for each area and each task individually, as well as looking at left-minus-right and rhyme-minustone contrasts. It is therefore notable that it was the left-minus-right activity that emerged as significantly correlating with a behavioural or environmental measure, as opposed to the plain activity level of any area considered individually. Moreover, of all the brain areas included in our study, it is Broca3s area for which the left–right asymmetry has been best established as being a meaningful indicator, and in our data it was the left IFG whose asymmetry emerged as significant. More specifically still, only the rhyme-task activation asymmetry emerged as meaningful; the tone-task asymmetry did not correlate significantly with any of the scores on standardised tests.
Cytoarchitectural studies of Broca3s area by Amunts, Zilles and colleagues have shown that its asymmetry increases with age, peaking at around 5 years of age in area 45 (the triangular part of the IFG) and at around 11 years in area 44 (the opercular part) (Amunts et al., 2003). Their findings fit perfectly with the functional asymmetry observed in the 5-year-old children in our study, raising the question of whether cytoarchitectural changes may in fact be underlying the differences in neural activation. Unfortunately, in vivo methods for investigating cytoarchitecture have yet to be developed, but future technical advances may allow this structure/function hypothesis to be tested.
Developmental studies of the neuroanatomy of Broca3s area also fit with our finding of marginally significant correlations between SES and both grey and white matter volume in that region. An interesting hypothesis that could be explored in future work is whether the richer linguistic environments that children in higher SES households are exposed to may lead to greater volume in Broca3s area, in addition to the increased asymmetry of functional activation observed in the present study. Recent studies have found evidence that extended training and practice does appear to induce measurable neuroanatomical changes in visual cortex (Draganski et al., 2004), the hippocampus (Draganski et al., 2006) and the cerebellum (Cannonieri et al., 2007), thus raising the possibility that stimulation from a child3s linguistic environment may induce analogous changes in Broca3s area.
Strengths and limitations of the present tests
The present study has usable fMRI data from 14 children (a subset of the larger group of 30 children who tried the mock scanner as an initial practice step). Although this is quite a respectable number of subjects for a functional imaging study of 5year-old children, any attempt to make a truly definitive statement about the population of children in this age group would require a larger study. Similarly, although we made efforts to recruit children from as broad a range of socioeconomic conditions as we could, our sample of families does not draw from the much lower SES populations that also exist.
With regard to the statistical analyses, the strong SES/IFG correlation that we observed survives two types of tests which take into
account the fact that several different data variables were collected and tested together: an FDR multiple comparisons correction, and partial correlation tests to remove the effects of related variables. In the Supplementary data, the implementation of the FDR procedure is described and graphically illustrated, and its strengths and limitations are discussed in detail. Collectively, these tests strengthen our results and draw attention to an empirical link between environmental and neural factors important to education. The results therefore provide a motivation and rationale for future investigations that explore the observed link.
Relation to previous studies
Our finding of a link between SES and the specialisation of Broca3s area is consistent with, but goes beyond, previous findings in the literature. Socioeconomic status has been found to correlate strongly with children3s language skills (Bowey, 1995; Hoff, 2003; Huttenlocher et al., 2002; Noble et al., 2007; Walker et al., 1994), and our own behavioural data are consistent with that finding; two test scores correlated with SES significantly at an uncorrected pvalue of pb0.05: the Peabody Picture Vocabulary Test (Dunn and Dunn, 1997) (r =0.68, p b 0.01) and the WPPSI (Wechsler, 1989) Verbal IQ (r =0.54, p b 0.05). However, very few MRI studies of children3s language skills have included SES as a factor (Eckert et al., 2001; Noble et al., 2006; Shaywitz et al., 2003), and none has yet demonstrated any clear relationship between SES and neural activity. As far as we are aware, the only previous study to have shown a relationship between SES and neural activity is that of Noble et al. (2006). They found a complex modulatory role for SES, in which the higher the SES, the less typical were the children3s brain–behaviour relationships. In contrast, the present finding is quite direct: the higher the SES, the greater the degree of specialisation of the left IFG. One possible cause of the difference between our results and those of Noble et al. is that they used a word-reading task, which requires not only phonological processing but also visual decoding. In contrast, our task was rhyme judgment and used purely auditory presentation. It is possible that our task therefore tapped more specifically into processes of phonological manipulation, hence probing Broca3s area more directly. Other differences between the two studies are that Noble et al. specifically studied children with below-average phonological awareness scores and that their children were slightly older (aged 6 to 9).
As children who struggle with reading become older, some of them develop compensatory strategies that can help to alleviate the difficulties, albeit without completely removing them. Both the studies of Noble et al. (2006) and Shaywitz et al. (2003) suggest that these compensatory processes may act to recruit more righthemisphere activation for reading and that this recruitment takes place to a greater degree in higher SES groups, indicating that it may be partly fueled by the more resource-rich environments. Specifically, Shaywitz et al. (2003) found that adults who read well but who previously showed reading impairment showed more right-sided perisylvian and superior frontal activity during reading, whereas persistently poor readers did not, and moreover, that the accuracy-improved readers had attended more socially advantaged schools (measured by the proportion of pupils receiving subsidised meals) than the persistently poor readers. Noble et al. (2006) found a result pointing in a similar direction: looking for brain areas whose activation correlated with phonological awareness scores, they found more left perisylvian activity in lower SES children, and more right perisylvian activity in children who were of higher SES.
In our study, the children were young (5 years old) and were not preselected for having any language difficulties (indeed, children with a known history of language impairment were excluded). Thus, in this subject group, neither the need for compensatory strategies nor the time to develop them would so far be present. In these children, higher SES predicted greater left-hemisphere specialisation. In contrast, amongst the older children and adults of the Noble et al. (2006) and Shaywitz et al. (2003) studies, it appears that higher SES environments may facilitate compensatory processes that act in the opposite direction, namely by increasing right-hemisphere recruitment. An intriguing possible hypothesis is that, during early development, greater environmental resources may help to drive the development of typical left-hemisphere language processing, but that later in life, better environmental resources may help children whose left-hemisphere language regions have not fully developed to devise compensatory strategies which act to recruit processing on the right. It is clear that future studies will be needed to unpack the complex neural and environmental processes shaping children3s developmental trajectories.
The correlation in our data between SES and the hemispheric specialisation of the left IFG remained significant, even after partialling out the results of standardised language tests. Thus, the fMRI is revealing a relationship between SES and language processing that the purely behavioural tests fail to uncover. Whereas behavioural measures are obliged to test the whole person at once, fMRI can directly probe specific brain areas, thereby providing a sensitive measure of how the environment impacts upon cognitive and neural development.
Conclusion
SES has consistently been found to be strongly linked to children3s language skills (Bowey, 1995; Hoff, 2003; Huttenlocher et al., 2002; Noble et al., 2007; Walker et al., 1994), and our behavioural data were consistent with these previous findings, showing moderate correlations between SES and the PPVTand WPPSI Verbal IQ. However, the correlation between SES and left-minus-right rhyme-task activation in the IFG was stronger than either of these behaviour–SES relations and indeed remained significant even after the effects of those behavioural measures were partialled out.
Thus, our results demonstrate that the weaker language skills of many low-SES children are not just a behavioural phenomenon, but more fundamentally are linked by the present study to weaker neural specialisation. This finding raises the question of what might underlie this linkage between SES and the development of language processing in the brain (Greenough et al., 1987; Ramey and Ramey, 1998). One candidate mechanism that we are currently investigating is the richness of the vocabulary and syntax to which a child is exposed. The education level of the children3s parents, along with other SES-related factors such as the number of books in the home, is an important contributor to the richness of a child3s linguistic environment (Bowey, 1995; Hoff, 2003; Huttenlocher et al., 2002; Noble et al., 2007; Walker et al., 1994).
The children in this study were 5 years old and not yet in kindergarten. At this age crucial prereading skills are developing, and these subskills underpin later success when formal schooling in learning to read starts. Several of these key prereading skills were probed directly in subparts of the standardised tests that were conducted: for example, the PPVT tested vocabulary and the PAT
measured the phonological skills. The measures of prereading subskills, environmental factors and language-related brain activation that were carried out in this study would be of the greatest benefit if they could serve as the starting point of a longitudinal study, tracking a cohort of children as they enter early formal education, and measuring the trajectory of their subsequent reading scores. This would allow one to assess the degree to which neural, behavioural and environmental measures at the age of 5 are able to predict later reading ability, and could perhaps even allow reading difficulties to be preempted.
As is the case for any study of correlation, the present data, while demonstrating a strong connection between SES and the specialisation of the left IFG, do not reveal a specific causal link. However, by revealing connections between SES and specific neural processes, this finding opens the door to future studies, addressing how a child3s environment shapes language processing in the brain. Many children grow up in low-SES environments, and the present study suggests that such environmental conditions, and the learning opportunities that they do and do not provide, can be linked specifically to the left IFG. Future studies of the development of language in the brain should include socioeconomically diverse populations and should make Broca3s area a target of investigation.
Acknowledgments
Support for this research was generously provided by the Delle Foundation and an NSF Science of Learning Center grant to the University of Washington3s LIFE Center (SBE-0354453). This work was facilitated by P30 HD02274 from the National Institute of Child Health and Human Development and supported by NIH UW Research Core Grant, University of Washington P30 DC04661.
Appendix A. Supplementary data
Supplementary data associated with this article can be found, in the online version, at doi:10.1016/j.neuroimage.2008.01.021.
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Genomics Algebra: A New, Integrating Data Model, Language, and Tool for Processing and Querying Genomic Information
Joachim Hammer and Markus Schneider
Department of Computer & Information Science & Engineering
University of Florida
Gainesville, FL 32611-6120, U.S.A.
{jhammer,email@example.com
Abstract
The dramatic increase of mostly semi-structured genomic data, their heterogeneity and high variety, and the increasing complexity of biological applications and methods mean that many and very important challenges in biology are now challenges in computing and here especially in databases. In contrast to the many query-driven approaches advocated in the literature, we propose a new integrating approach that is based on two fundamental pillars. The Genomics Algebra provides an extensible set of high-level genomic data types (GDTs) (e.g., genome, gene, chromosome, protein, nucleotide) together with a comprehensive collection of appropriate genomic functions (e.g., translate, transcribe, decode). The Unifying Database allows us to manage the semi-structured contents of publicly available genomic repositories and to transfer these data into GDT values. These values then serve as arguments of Genomics Algebra operations, which can be embedded into a DBMS query language.
applications and methods mean that many and very important challenges in biology are now challenges in computing and here especially in databases. This statement is underpinned by the fact that millions of nucleic acid sequences with billions of bases have been deposited in the well-known persistent genomic repositories EMBL, GenBank, and DDBJ. Both SwissProt and PIR form the basis of annotated protein sequence repositories together with TrEMBL and GenPept, which contain computer-translated sequence entries from EMBL and GenBank. In addition, hundreds of specialized repositories have been derived from the above primary sequence repositories. Information from them can only be retrieved by computational means.
1. Introduction
In the past decade, the rapid progress of genome projects has led to a revolution in the life sciences causing a large and exponentially increasing accumulation of information in molecular biology and an emergence of new and challenging applications. The flood of genomic data, their high variety and heterogeneity, their semi-structured nature as well as the increasing complexity of biological
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Proceedings of the 2003 CIDR Conference
The indispensable and inherently integrative discipline of bioinformatics has established itself as the application of computing and mathematics to the management, analysis, and understanding of the rapidly expanding amount of biological information to solve biological questions. Consequently, research projects in this area must have and indeed have a highly interdisciplinary character. Biologists provide their expertise in the different genomic application areas and serve as domain experts for input and validation. Computer scientists contribute their knowledge about the management of huge data volumes and about sophisticated data structures and algorithms. Mathematicians provide specialized analysis methods based, e.g., on statistical concepts.
We have deliberately avoided the term 'genomic database' and replaced it by the term 'genomic repository' since many of the so-called genomic 'databases' are simply collections of flat files or accumulations of Web pages and do not have the beneficial features of real databases in the computer science sense. Attempts to combine these heterogeneous and largely semi-structured repositories have been predominantly based on federated or query-driven approaches leading to complex middleware tiers between the end user application and the genomic repositories.
This position paper propagates the increased and integrative employment of current database technology as well as appropriate innovations for the treatment of nonstandard data to cope with the large amounts of genomic data. In a sense, we advocate a "back to the roots" strategy of database technology for bioinformatics. This means that general database functionality should remain inside the DBMS and not be shifted into the middleware.
The concepts presented in this paper aim at overcoming the following fundamental challenges: The deliberate independence, heterogeneity, and limited interoperability among multiple genomic repositories, the enforced low-level treatment of biological data imposed by the genomic repositories, the lack of expressiveness and limited functionality of current query languages and proprietary user interfaces, the different formats and the lack of structure of biological data representations, and the inability to incorporate owns own, self-generated data.
Our integrating approach, which to our knowledge is new in bioinformatics and differs substantially from the integration approaches that can be found in the literature (see Section 3), rests on two fundamental pillars:
1. Genomics Algebra. This extensible algebra is based on the conceptual design, implementation, and database integration of a new, formal data model, query language, and software tool for representing, storing, retrieving, querying, and manipulating genomic information. It provides a set of high-level genomic data types (GDTs) (e.g., genome, gene, chromosome, protein, nucleotide) together with a comprehensive collection of appropriate genomic operations or functions (e.g., translate, transcribe, decode). Thus, it can be considered a resource for biological computation.
2. Unifying Database. Based on latest database technology, the construction of a unifying and integrating database allows us to manage the semistructured or, in the best case, structured contents of genomic repositories and to transfer these data into high-level, structured, and object-based GDT values. These values then serve as arguments of Genomics Algebra operations. In its most advanced extension, the Unifying Database will develop into a global database comprising the most important or, as a currently rather unrealistic vision, even all publicly available genomic repositories.
The main benefits resulting from this approach for the biologist can be summarized as follows: Instead of a currently low-level treatment of data in genomic repositories, the biologist can now express a problem and obtain query results in biological terms (using high-level concepts) with the aid of genomic data types and operations. In addition, the biologist is provided with a powerful, general, and extensible high-level biological query language and user interface adapted to his/her needs. In a long-term view, the biologist is not confronted any more with hundreds of different genomic repositories but is equipped with an integrated and consistent working environment and user interface based on a unifying or ultimately global database. This Unifying Database allows the biologist to combine, integrate, and process data from originally different genomic resources in an easy and elegant way. Finally, it enables the integration and processing of self-generated data and their combination with data stemming from public resources.
2. Requirements of genomic data management
Adequate employment of database technology requires a deep understanding of the problems of the application domain. These domain-specific requirements then make it possible to derive computer science and database relevant requirements for which solutions have to be found. Discussions and cooperation with biologists have revealed the following main problems regarding the information available in the genomic repositories:
B1. Proliferation of specialized databases coupled with continuous expansion of established repositories creates missed opportunities.
B2. Two or more databases may hold additive or conflicting information.
B3. There is little or no agreement on terminology and concepts among different groups and consequently among the repositories they are building.
B4. A familiar data resource will disappear or morph to a different site.
B5. Query results are unmanageable unless organized into a customized, project-specific database.
B6. Data records copied from a source become obsolete and possibly misleading unless updated.
B7. The portal to each data site is a unique interface forcing scientists to develop customized access and retrieval methods.
B8. The database schema and data types are unknown to the user making custom SQL queries impossible.
B9. Biologists do not understand SQL, don't want to understand database schemas, and would prefer constructing queries using familiar biological terms and operations.
B10. Data in most genomics repositories are noisy, e.g., it is estimated that 30-60% of sequences in GenBank are erroneous.
These ten information-related problems (B1-B10) identified from a biologist's perspective lead to the following computer science centric problems (C1-C15). The identifiers in parentheses serve as cross-references into the list above.
C1. Multitude and heterogeneity of available genomic repositories (B1, B2, B3). Finding all appropriate sites from the more than 300 genomic repositories available on the Internet for answering a question is difficult. Many repositories contain related genomic
data but differ with respect to contents, detail, completeness, data format, and functionality.
C2. Missing standards for genomic data representation (B1, B2, B3, B7). There is no commonly accepted way for representing genomic data as evident in the large number of different formats and representations in use today.
C3. Multitude of user interfaces (B7). The multitude of genomic repositories implies a multitude of user interfaces and ontologies a biologist is forced to learn and to comprehend.
C4. Quality of user interfaces (B5, B7, B8, B9). In order to utilize existing user interfaces effectively, the biologist needs detailed knowledge about computing and data management since they are often too system-oriented and not user-friendly enough.
C5. Quality of query languages (B5, B8, B9). SQL is tailored to answer questions about alphanumerical data but unsuited for biologists asking biological questions. Consequently, the biologist should have access to a biological query language.
C6. Limited functionality of genomic repositories (B2, B3, B8, B9). The interactions of the biologist with a genomic repository are limited to the functions available in the user interface of that repository. This implies a lack of flexibility and the ability to ask new types of queries.
C7. Format of query results (B5, B6). The result of a query against a genomic repository is often outputted to the computer screen or to a text file and cannot be used for further computation. It is then left to the biologist to analyze the results manually.
C8. Incorrectness due to inconsistent and incompatible data (B1, B2, B3, B6). The existence of different genomic repositories with respect to the same kind of biological data leads to the question whether and where similar or overlapping repositories agree and disagree with one another.
C9. Uncertainty of data (B2, B6, B10). A very important but extremely difficult question refers to the correctness of data stored in genomic repositories. Due to vague or even lacking biological knowledge and due to experimental errors, erroneous data in genomic repositories cannot be excluded. Frequently, it cannot be decided from two inconsistent pieces of data, which one is correct and which one is wrong. In this case, access to both alternatives should be given.
C10. Combination of data from different genomic repositories (B2, B8, B9). Currently, data sets from different, independent genomic repositories cannot be combined or merged in an easy and meaningful manner.
C11. Extraction of hidden and creation of new knowledge (B1, B2, B8, B9). The nature of stored genomic data, e.g., in flat files, semi-structured records, makes it difficult to extract hidden information and to create new knowledge. The extraction of relevant data from query results and their analysis has to be performed without much computational support.
C12. Low-level treatment of data (B1, B2, B5, B8, B9). Genomic data representations and query results are more or less collections of textual strings and numerical values and are not expressed in biological terms such as genes, proteins, and nucleotide sequences. Operations on these high-level entities do not exist.
C13. Integration of self-generated data and extensibility (B5, B6). A biologist generates new biological data from their own research or experimental work. It is not possible to store and retrieve this data, to perform computations with generally known or even own methods, and to match the data against the genomic databases. This requires an extensible database management system, query language, and user interface.
C14. Integration of new specialty evaluation functions (B5, B8, B9). The possibility to evaluate data originally stemming from genomic repositories as well as self-generated data with publicly available methods is insufficient. Thus, it must be possible to create, use, and integrate user-defined functions that are capable of operating on both kinds of data.
C15. Loss of existing repositories (B4). Due to the high competition at the bioinformatics market, many companies disappear and with them the genomic repositories that were maintained by them. The company's valuable knowledge should be preserved.
This detailed problem analysis shows the enormous complexity of the information-related challenges biologists and computer scientists are confronted with. It is our conviction, and we will motivate and explain this in the following sections, that the combination of Genomics Algebra and Unifying Database is a solution for all these problems, even though it raises a number of new, complicated, and hence challenging issues.
3. Biological database integration
Much research has been conducted to reduce the burden on the biologist when attempting to access related data from multiple genomic repositories. One can distinguish two commonly accepted approaches: (1) query-driven integration or mediation and (2) data warehousing. In both approaches, users access the underlying sources indirectly through an integrated, global schema (view), which has been constructed either from the local schemas of the sources or from general knowledge of the domain.
Figure 1: Generic integration architecture using the querydriven approach.
Data
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Data
Source 1
Data
Source 2
Wrapper
Integration System
Interface
Wrapper
Wrapper
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Client-level…
In the biological domain, most integration systems are currently based on the query-driven approach 1 . SRS [4], BioNavigator [2], K2/Kleisli [3], TAMBIS [8] and DiscoveryLink [6] are representatives of this class. Although they differ greatly in the capabilities they offer, they can be considered middleware systems, in which the bulk of the query and result processing takes place in a different location from where the data is stored. For example, K2/Kleisli, DiscoveryLink, and TAMBIS use source-specific data drivers (wrappers) for extracting the data from underlying data sources (e.g., GenBank, dbEST, SWISS-PROT) including application programs (e.g., the BLAST family of similarity search programs[1]). The extracted data is then shipped to the integration system, where it is represented and processed using the data model and query language of the integration system (e.g., the relational model and SQL in TAMBIS, the object-oriented model and OQL in K2/Kleisli). Biologists access the integration system through a client interface, which hides many of the source-specific details and heterogeneities. The querydriven approach to accessing multiple sources is depicted in Figure 1.
The generic data warehousing architecture (not shown) looks similar to the one depicted in Figure 1, except for the addition of a repository (warehouse) in the middleware layer. This warehouse is used by the integration system to store (materialize) the integrated views over the underlying data sources. Instead of answering queries at the source, the data in the warehouse is used. This greatly improves performance but requires complex maintenance procedures to update the warehouse in light of changes to the sources. Among the integration systems for biological databases, the only representative of the data warehousing approach known to us is GUS (Genomics Unified Schema) [3]. GUS describes a
1 Historically, sharing architectures based on the query-driven approach have also been termed federated databases.
relational data warehouse in support of organism and tissue-specific research projects at the University of Pennsylvania. GUS shares some of its goals and requirements with the system proposed in this paper.
Despite the continuous advancements in biological database systems research, we argue that current systems present biologists with only an incomplete solution to the growing data management problem they are facing. More importantly, we share the belief of the authors in [3] that in those situations where close control over query performance as well as accuracy and consistency of the results are important (problem C8 in Section 2), the query-driven approach is not an option. However, query performance and correctness are only two aspects of biological data management. As can be seen in our list of requirements in Section 2, a suitable representation of biological data and a powerful and extensible biological query language capable of dealing with the inherent uncertainty of the correctness of biological data are equally important (C2, C4, C6, C9, C12, C14). To our knowledge, none of the existing systems currently addresses these requirements.
Independent of the integration approach used, current systems lack adequate support for biologists, forcing them to adopt their research methods to fit those imposed by the data management tools instead of the other way around. Table 1 summarizes how the integration systems mentioned above address each of the computer science issues C1-C15. In the next sections, we outline our proposal for a genomic data warehouse and a powerful analysis component. We believe the combination of the two greatly enhances the way biologists analyse and process information including data stored in the existing genomic repositories.
4. Genomics Algebra
Based on the observations and conclusions made in Section 3, we pursue an alternative, integrative approach, which heavily focuses on current database and data warehouse technologies. The Genomics Algebra (GenAlg) is the first of two pillars of our approach. It incorporates a sophisticated, self-contained, and high-level type system for genomic data together with a comprehensive set of operations.
4.1 An ontology for molecular biology and bioinformatics
The first step and precondition for a successful construction of our Genomics Algebra is the design of an ontology for molecular biology and bioinformatics. By ontology, we are referring to "a specification of a conceptualization." That is, in general, an ontology is a description of the concepts and relationships that define an application domain.
Applied to bioinformatics, an ontology is a "controlled vocabulary for the description of the molecular functions, biological processes and cellular components of gene products." An obstacle to its unique definition is that the multitude of heterogeneous and autonomous genomic repositories has induced terminological differences (synonyms, aliases, formulae), syntactic differences (file structure, separators, spelling) and semantic differences (intra- and interdisciplinary homonyms). The consequence is that data integration is
impeded by different meanings of identically named categories, overlapping meanings of different categories, and conflicting meanings of different categories. Naming conventions of data objects, object identifier codes, and record labels differ between databases and do not follow a unified scheme. Even the meaning of important high-level concepts (e.g., the notion of gene or protein function) that are fundamental to molecular biology is ambiguous.
Table 1: Analysis of data management capabilities of existing integration systems with respect to the requirements outlined in Sec. 2.
If the user queries a database with such an ambiguous term, until now (s)he has full responsibility to verify the semantic congruence between what (s)he asked for and what the database returned. An ontology helps here to establish a standardised, formally and coherently defined nomenclature in molecular biology. Each technical term has to be associated with a unique semantics that should be accepted by the biological community. If this is not possible, because different meanings or interpretations are attached to the same term but in different biological contexts, then the only solution is to coin a new, appropriate, and unique term for each context. Uniqueness of a term is an essential requirement to be able to map concepts into the Genomics Algebra.
including their semantics that underlie genome sequencing. Since there has been much effort in defining ontologies for various bioinformatics projects [7], for example, Eccocyc, Pasta, Gene Ontology Consortium, we are about to study and compare these and other existing contributions in this field when defining our ontology. Therefore, besides an important contribution in itself, a comprehensive ontology forms the starting point for the development of our Genomics Algebra. In total, this goal especially contributes to a solution of the problems C1, C2, C3, C5, C8, C9, C11, and C12. Besides developing such a genomic ontology, a challenge is to devise an appropriate formalism for its unique specification.
Consequently, one of our current research efforts and challenges is to develop a comprehensive ontology, which defines the terminology, data objects and operations
4.2 The algebra
In a sense, the Genomics Algebra as the second step is the derived, formal, and executable instantiation of the resulting genomic ontology. Entity types and functions in the ontology are represented directly using the appropriate data types and operations supported by our Genomics Algebra. This algebra 2 has to satisfy two main tasks. First, it has to serve as interface between biologists, who use this interface, and computer scientists, who implement it. An essential feature of the algebra is that it incorporates high-level biological terminology and concepts. Hence, it is not based on the low-level concepts provided by database technology. Second, as a result, this high-level, domain-specific algebra will greatly facilitate the interactions of biologists with genomic information stored in our Unifying Database (see Section 5) and incorporating at least the knowledge of the genome repositories. This is much like the invention of the 3-tier architecture and how the resulting data independence simplified database operations in relational databases. To our knowledge, no such algebra currently exists in the field of bioinformatics. The main impact of this goal is in solving the problems C2 to C4 and C6 to C14. This requires close coordination between domain experts from biology, who have to identify and select useful data types, relevant operations, and their semantics, and computer scientists, whose task it is to formalize and implement the algebra.
In order to explain the notion of algebra, we start with the concept of a many-sorted signature, which consists of two sets of symbols called sorts (or types) and operators. Operators are annotated with strings of sorts. For instance, the symbols string, integer, and char may be sorts and concatstring string string and getcharstring integer char two operators. The annotation with sorts defines the functionality of the operator, which in a more conventional way is usually written as concat : string × string → string and getchar : string × integer → char. To assign semantics to a signature, one must assign a (carrier) set to each sort and a function to each operator. Each function has domains and a codomain according to the string of sorts of the operator. Such a collection of sets and functions forms a many-sorted algebra. Hence, a signature describes the syntactic aspect of an algebra by associating with each sort the name of a set of the algebra and with each operator the name of a function. A signature especially defines a set of terms such as getchar(concat("Genomics", "Algebra"), 10). The sort of a term is the result sort of its outermost operator, which is char in our example.
Our Genomics Algebra is a domain-specific, manysorted algebra incorporating a type system for biological data. Its sorts, operators, carrier sets, and functions will be derived from the genomic ontology developed in the first step. The sorts are called genomic data types (GDTs) and
2 The following algebraic model expresses our object-based understanding of the genomics domain. The realization of this model, e.g., using an object-oriented approach, is irrelevant in this context.
the operators genomic operations. To illustrate the concept, we assume the following, very simplified signature, which is part of our algebra:
```
sorts gene, primaryTranscript, mRNA, protein ops transcribe: gene → primaryTranscript splice: primaryTranscript → mRNA translate: mRNA → protein
```
This "mini algebra" contains four sorts or genomic data types for genes, primary transcript, messenger RNA, and protein as well as three operators transcribe, which for a given gene returns its primary transcript, splice, which for a given primary transcript identifies its messenger RNA, and translate, which for a given messenger RNA determines the corresponding protein. We can assume that these sorts and operators have been derived from our genomic ontology. Hence, the high-level nomenclature of our genomic ontology is directly reflected in our algebra. The algebra now allows us to (at least) syntactically combine different operations by (function) composition. For instance, given a gene g, we can syntactically construct the term translate(splice(transcribe(g))), which yields the protein determined by g. For the semantic problems of this term, see below.
Obviously, our mini algebra is incomplete. It is our conviction that finding a "complete" set of GDTs and genomic operations (what does "completeness" mean in this context?) is impossible, since new biological applications can induce new data types or new operations for already existing data types. Therefore, we pursue an extensible approach, i.e., if required, the Genomics Algebra can be extended by new sorts and operations. In particular, we can combine new sorts with sorts already present in the algebra, which leads to new operations. In other words, we can combine information stemming originally from different genomic repositories. Our hope is to be able to identify new, powerful, and fundamental genomic operations that nobody has considered so far.
From a software point of view, the Genomics Algebra is an extensible, self-contained software package and tool providing a collection of genomic data types and operations for biological computation. It is principally independent of a database system and can be used as a software library by a stand-alone application program. Thus, we also denote it as kernel algebra.
This kernel algebra develops its full expressiveness and usability if it is designed and integrated as a collection of abstract data types (ADTs) into the type system and query language of a database system (Section 6) [11]. ADTs encapsulate their implementation and thus hide it from the user or another software component like the DBMS. From a modelling perspective, the DBMS data model and the application-specific algebra or type system are separated. This enables the software developer to focus on the application-specific aspects embedded in the algebra. Consequently, this procedure supports modularity and conceptual clarity and also permits the reusability of an algebra for different DBMS data models. It requires extensibility mechanisms at the type system level in particular and at all levels of the architecture of a DBMS in general, starting from user interface extensions down to new, external representation and index structures. From an implementation point of view, ADTs support modularity, information hiding, and the exchange of implementations. Simple and inefficient implementation parts can then be replaced by more sophisticated ones without changing the interface, that is, the signature of algebra operations.
4.3 Research challenges
We have already addressed two main research challenges, namely the design of the genomic ontology and the derivation of the signature of the Genomics Algebra from it. This leads us to the third main challenge, which is to give a formal definition of the genomic data types and operations, i.e., to specify their semantics, in terms that can be transferred to computer science and especially to database technology. A serious obstacle to the construction of the Genomics Algebra is the biologists' vague or even lacking knowledge about genomic processes. Biological results are inherently uncertain and never guaranteed (in contrast to the results of the application domains mentioned above) but always attached with some degree of uncertainty. For instance, it is known that the splice operation takes a primary Transcript and produces a messenger RNA, i.e., the effect of splicing (the "what"?) is clear since the cell demonstrates this observable biological function all the time. But it is unknown how the cell performs ("computes") this function. Transferred to our Genomics Algebra, this means that the signature of the splice operation is known with domain and codomain as shown in Section 4.2. We can even define the semantics of the operation in a denotational way. However, we cannot determine its operational semantics in the form of an algorithm and thus not implement it directly. A way out of this "dilemma" can be to map the procedure that biologists use in their everyday work to elude the problem or to compute an approximated solution for the problem. This inherent feature of uncertainty due to lacking knowledge must be appropriately reflected in the Genomics Algebra in order not to pretend correct results, which actually are vague or error-prone. The challenging issue is how this can be done in the best way.
The fourth main challenge is to implement the Genomics Algebra. This includes the design of sophisticated data structures for the genomic data types and efficient algorithms for the genomic operations. We discuss two important aspects here. A first aspect is that algorithms for different operations processing the same kind of data usually prefer different internal data representations in order to be as efficient as possible. In contrast to traditional work on algorithms, the focus is here not on finding the most efficient algorithm for each single problem (operation) together with a corresponding sophisticated data structure, but rather on considering the Genomics Algebra as a whole and on reconciling the various requirements posed by different algorithms within a single data structure for each genomic data type. Otherwise, the consequence would be enormous conversion costs between different data structures in main memory for the same data type. A second aspect is that the implementation is intended for use in a database system. Consequently, representations for genomic data types should not employ pointer data structures in main memory but be embedded into compact storage areas which can be efficiently transferred between main memory and disk. This avoids unnecessary and high costs for packing main memory data and unpacking external data.
5. Unifying Database
The Unifying Database is the second pillar of our integrating approach. By Unifying Database, we are referring to a data warehouse, which integrates data from multiple genomic repositories. We have chosen the data warehousing approach to take advantage of the many benefits it provides, including superior query processing performance in multi-source environments, the ability to maintain and annotate extracted source data after it has been cleansed, reconciled and corrected, and the option to preserve historical data from those repositories that do not archive their contents. Equally important, the Unifying Database is also the persistent storage manager for the Genomics Algebra.
5.1 Component overview
The component most visible to the user is the integrated schema. We distinguish between the portions of the schema that house the restructured and integrated external data (i.e., the entities that store the genomic data brought in from the sources) and which is publicly available to every user, and those that contain the user data (i.e. the entities that store user-created data including annotations), which may be private. The schema containing the external data is read-only to facilitate maintenance of the warehouse; user-owned entities are updateable by their owners. Separating between user and public space provides privacy but does not exclude sharing of data between users, which can be controlled via the standard database access control mechanism. Since all information is integrated in one database using the same formats and representation, cross-referencing, linking, and querying can be done using the declarative database language provided by the underlying database management system (DBMS), which has been extended by powerful operations specific to the characteristics of the genomic data (see Section 6.3). However, users do not interact directly with the database language; instead, they use the commands provided by the Genomics Algebra, which may be embedded in a graphical user interface.
Conceptually, the Unifying Database may be implemented using any DBMS as long as it is extensible. By extensible we are referring to the capability to extend the type system and query language of the database with user-defined data types. For example, all of the objectrelational and most object-based database management systems are extensible. We have more to say on the integration of the Genomics Algebra with the DBMS hosting the Unifying Database in Section 6. We believe our integration of the Genomics Algebra with the Unifying Database represents a dramatic improvement over current technologies (e.g., a query-driven integration system connected to BLAST sources) and will cause a fundamental change in the way biologists will conduct sequence analysis.
Conceptually, the component responsible for loading the Unifying Database and making sure its contents are up-to-date is referred to as ETL (Extract-TransformLoad). In our system architecture, ETL comprises four separate activities:
1. Monitoring the data sources and detecting changes to their contents. This is done by the source monitors.
2. Extracting relevant new or changed data from the sources and restructuring the data into the corresponding types provided by the Genomics Algebra. This is done by the sources wrappers.
3. Merging related data items and removing inconsistencies before the data is loaded into the Unifying Database. This is done by the warehouse integrator.
4. Loading the cleaned and integrated data into the unifying database. This is done by the loader.
A conceptual overview of the Unifying Database is depicted in Figure 3 in Section 6. As we can see from the figure, the ETL component interfaces with a DBMSspecific adapter instead of the DBMS directly. This adapter, which implements the interface between database engine and Genomics Algebra, is the only component that has knowledge about the types and operations of the Genomics Algebra as well as how they are implemented and stored in the DBMS. The adapter is discussed in more detail in the next section.
Although much has been written and documented about building data warehouses for different applications including the GUS warehouse for biological data at the University of Pennsylvania [3], we briefly highlight the challenges that we face during the development of the Unifying Database.
5.2 Research challenges
We have identified the following challenges, which are directly related to implementing the components described above:
1. How do we best design the integrated schema so that it can accommodate data from a variety of genomic repositories?
2. How do we automate the detection of changes in the data sources?
3. How do we integrate related data from multiple sources in the Unifying Database?
4. How do we automate the maintenance of the Unifying Database?
Design of the integrated schema
There are two seemingly contradictory goals when designing the schema that defines the unifying database. On one hand, the schema should reflect the informational needs of the biologists, and should therefore be defined in terms of a global, biologist-centric view of the data (topdown design). On the other hand, the schema should also be capable of representing the union of the entities stored in the underlying sources (bottom-up design). We use a bottom-up approach by designing an integrated schema for the unifying database that contains the most important entities from all of the underlying repositories; which entities are considered important will be determined in discussions with the collaborating biologists. However, using a bottom-up approach does not imply a direct mapping between source objects and target schema. Given the wealth of data objects in the genomic repositories, a one-to-one mapping would result in a warehouse schema that is as unmanageable and inefficient as the source schemas it is trying to replace (e.g., GUS contains over 180 tables to store data from five repositories). Instead, we aim for a schema that combines and restructures the original data to obtain the best possible query performance while providing its users with an easy-to-use view of the data. If desired, each user can further customize the schema to his individual needs.
Schema design will likely be an iterative process, aiming to first create a schema that contains all of the nucleotide data, which will later be extended by new tables storing protein data, and so forth. This iterative process is possible since there is little overlap among the repositories containing different types of genomic data; furthermore, this type of schema evolution will mainly result in new entities being added instead of existing ones being removed or updated.
Change detection
The type of change detection algorithm used by the source monitor depends largely on the information source capability and the data representation. Figure 2 classifies the types of change detection for common sources and data representations, where the abscissa denotes four different source types (explained below), and different data representations occur along the ordinate. A third dimension ( degree of cooperation of the underlying source) is omitted for simplicity since source capability and degree of cooperation are related.
Figure 2. Classification of data sources using data representation and capability of the source management system as the defining characteristics. The grid identifies several proposed approaches to change detection. Shaded squares denote areas of particular interest to our project.
Source
Type
Data
Hierarchical
Flat file
Relational
Queryable
Active
Database
Trigger
N/A
Program
Trigger
Inspect
Log
Snaphot
Differential
Inspect
Log
N/A
LCS
Inspect
Log
Edit
Sequence
N/A
Edit
Sequence
Non-queryable
Logged
In Figure 2, relational refers to the familiar row/column representation used by the relational data model, flat file refers to any kind of unstructured information (e.g., text document), and hierarchical refers to a data representation that exhibits nesting of elements such as the tree and graph structures or data typically represented in an object model. Since most of the genomic data sources use either a flat file format (e.g., GenBank) or a hierarchical format (e.g., AceDB), we focus our investigation mainly on the upper two rows in the graph.
Active data sources provide active capabilities such that notifications of interesting changes can be programmed to occur automatically. Active capabilities are primarily found in relational systems (e.g., database triggers). However, some of the non-relational genomic data sources (e.g., SWISS-PROT) are now beginning to offer push capabilities, which will notify requesting users when relevant sequence entries have been made.
Where logged sources maintain a log that can be queried or inspected, changes can be extracted for hierarchical, flat file, or relational data. Queryable sources allow the database monitor to query information at the source, so periodic polling can be used to detect changes of interest. Two approaches are possible: detecting edit sequences for successive snapshots containing hierarchical data, or computing snapshot differentials for relational data.
Finally, non-queryable sources do not provide triggers, logs, or queries. Instead, periodic data dumps
(snapshots) are provided off-line, and changes are detected by comparing successive snapshots. In the case of flat files, one can use the "longest common subsequence" approach, which is used in the UNIX diff command. For hierarchical data, various diff algorithms for ordered trees exist. In the case of the ACe databases, the "acediff" utility will compute minimal changes between different snapshots. For data sources that export snapshots in XML, IBMS's XMLTreeDiff can be used.
Despite the existence of prior existing work, change detection remains challenging, especially for the shaded regions in Figure 2. For example, in queryable sources, performance and semantic issues are associated with the polling frequency (PF). If the PF is too high, performance can degrade. Conversely, important changes may not be detected in a timely manner. A related problem independent of the change detection algorithm involves development of appropriate representations for deltas during transmission and in the warehouse. At the very least, each delta must be uniquely identifiable and contain (a) information about the data item to which it belongs and (b) the a priori and a posteriori data and the time stamp for when the update became effective.
Data integration
Before the extracted data from the sources can be loaded into the Unifying Database, one must establish the relationships among the data items in the source(s) with the existing data in the Unifying Database to ensure proper loading. In addition, in case data from more than one source is loaded, related data items from different sources must first be identified so that duplicates can be removed and inconsistencies among related values can be resolved. This last step is referred to as reconciliation.
The fundamental problem is as follows: How do we automatically detect relationships among similar entities, which are represented differently in terms of structure or terminology? This problem is commonly referred to as the semantic heterogeneity problem. Being able to find an efficient solution will allow us to answer the following important questions that arise during data integration:
* Which source object is related to which entity in the Unifying Database and how?
* Which data values can be merged, (for example because they contain complimentary or duplicate information)?
* Which items are inconsistent?
There has been a wealth of research on finding automated solutions to the semantic heterogeneity problem. For a general overview and theoretical perspective on managing semantic heterogeneities see [5].
Unifying database maintenance
Since the Unifying Database contains information from existing genomic repositories, its contents must be refreshed whenever the underlying sources are updated.
Ideally, the Unifying Database should always be perfectly synchronized with respect to the external sources. However, given the frequency of updates to most repositories, this is not realistic. On the other hand, there is evidence that a less synchronized warehouse is still useful. For example, SWISS-PROT, which is a curated version of the protein component of GenBank is updated on a quarterly basis; yet it is extensively used due to the high quality of its data. A similar experience has been documented by the authors in [3], whose GUS warehouse contents lag those of the data sources by a few months. As an important variation to existing refresh schemes, namely to automatically maintain certain pre-defined consistency levels between sources and warehouse, we plan to offer a manual refresh option. This allows the biologist to defer or advance updates depending on the situation.
Independent of the update frequency, refreshing the contents of the Unifying Database in an automatic and efficient manner remains a challenge. Since a warehouse can be regarded as an integrated "view" over the underlying sources, updating a warehouse has been documented in the database literature as the view maintenance problem. In general, one can always update the warehouse by reloading the entire contents, i.e., by reexecuting the integration query(s) that produced the warehouse view. However, this is very expensive, so the problem is to find a new load procedure (or view query) that takes as input the updates that have occurred at the sources and possibly the original source instances or the existing warehouse contents and updates the warehouse to produce the new state. When the load procedure can be formulated without requiring the original source instances, the warehouse is said to be self-maintainable.
View maintenance has been studied extensively in the context of relational databases. However, fewer results are known in the context of object-oriented databases or semistructured databases. To our knowledge, no work has been done on recomputing annotations or corrections that need to be applied to existing data in the warehouse.
6. Interaction between genomics algebra and unifying database
Both pillars of our approach develop their full power if they are integrated into a common system architecture. In the following, we will discuss the system architecture, the requirements with respect to DBMSs, and appropriate integration mechanisms.
6.1 System architecture
A conceptual overview of the high-level architecture that integrates the Genomics Algebra with the Unifying Database is shown in Figure 3. The Unifying Database is managed by the DBMS and contains the genomic data, which comes either from the external sources or is user generated. The link between the Genomics Algebra and the Unifying Database is established through the DBMSspecific adapter . Extracting and integrating data from the external sources is the job of the extract-transform-load (ETL) tool shown on the right-hand side of Figure 3. User-friendly access to the functionality of the Genomics Algebra is provided by the GUI component depicted in the top center. In the following, we describe the remaining components of the architecture and some further aspects in more detail.
6.2 Adapters and user-defined data types
Databases must be inherently extensible to be able to efficiently handle various rich, application-domainspecific complex data types. The adapter provides a DBMS-specific coupling mechanism between the ADTs together with their operations in the Genomics Algebra and the DBMS managing the Unifying Database. The ADTs are plugged into the adapter by using the userdefined data type (UDT) mechanism of the DBMS. UDTs provide the ability to efficiently define and use new data types in a database context without having to re-architect the DBMS. The adapter is registered with the database management system at which point the UDTs become add-ons to the type system of the underlying database.
Two kinds of UDTs can be distinguished, namely object types, whose structure is fully known to the DBMS, and opaque types whose structure is not. Object types can only be constructed by means of types the DBMS provides (e.g., native SQL data types, other object types, large objects, reference types). They turn out to be too limited. For our purpose, opaque types are much more appropriate. They allow us to create new fundamental data types in the database whose internal and mostly complex structure is unknown to the DBMS. The database provides storage for the type instances. User-defined operators (see also Section 6.3) that access the internal structure are linked as external methods or external functions . They as well as the types are implemented, e.g., in C, C ++ , or Java. The benefit of opaque types arises in cases where there is an external data model and behavior available like in the case of our Genomics Algebra.
All major database vendors support UDTs and external functions and provide mechanisms to package them up for easy installation (e.g., cartridges, extenders, datablades). A very important feature of the Genomics Algebra is that it is completely independent of the software that is used to provide persistence. That is, it can be integrated with any DBMS (relational, objectrelational, object-oriented), as long as the DBMS is extensible. The reason is that the genomic data types are included into the database schema as attribute data types (like the standard data types real, integer, boolean, etc.). Tuples in a relational setting or objects in an objectoriented environment then only serve as containers for storing genomic values.
6.3 Integration of user-defined operations into SQL 3
Typically, databases provide a set of pre-defined operators to operate on built-in data types. Operators can be related to arithmetic (e.g., +, -, *, /), comparison (e.g., =, <, >), Boolean logic (e.g., not, and, or), etc. From Section 6.2 we know that the UDT mechanism also allows us to specify and include user-defined operators as external functions. For example, it is possible to define a resembles operator for comparing nucleotide sequences.
User-defined operators can be invoked anywhere built-in operators can be used, i.e., wherever expressions may occur. In particular, this means that they can be included in SQL statements. They can be used in the argument list of a SELECT clause, the condition of a WHERE clause, the GROUP BY clause, and the ORDER BY clause. This ability allows us to integrate all the powerful operations and predicates of the Genomics Algebra into the DBMS query language, which, by the way, need not necessarily be SQL, and to extend the semantics of the query language in a domain-specific way. Let us assume the very simplified example of a predicate contains which takes as input a decoded DNA fragment and a particular sequence and which returns true if the fragment contains the specified sequence. Then we can write an SQL query as
SELECT id
FROM DNAFragments
WHERE contains(fragment, "ATTGCCATA")
6.4 User and system interface
For the biologist the quality of the user interface plays an important role, because it represents the communication
3 The integration approach of our Genomics Algebra with a relational DBMS and SQL can also be accomplished using an object-oriented DBMS and query language, such as OQL, for example.
mechanism between him/her on the one side and the Genomics Algebra and the Unifying Database on the other side. Currently, the biologist has to cope with the multitude, heterogeneity, fixed functionality, and simplicity of the user interfaces provided by genomic repositories. Hence, uniformity, flexibility, extensibility, and the possibility of graphical visualization are important requirements of a well-designed user interface. Based on an analysis and comparison of the currently available and most relevant user interfaces, our goal is to construct such a graphical user interface (GUI) for our Genomics Algebra. The aforementioned GUIs suffer from (at least) two main problems. First, they do not provide database and query facilities, which is an essential drawback, and second, their formats are only either HTML, ASN.1 (a binary format for bioinformatics data), or graphical output.
Our GUI is to comprise the following main elements: (1) a biological query language combined with a graphical output description language, (2) a visual language for the graphical specification of queries, and (3) the development of an XML application as a standardized input/output facility for genomic data.
The extended SQL query language enriched by the operations of the Genomics Algebra (see Section 6.3) is not necessarily the appropriate end user query language for the biologist. Biologists frequently dislike SQL due to its complexity. For them SQL is solely a database query language but not apt as a biological query language. Thus, the issue is here to design such a biological query language based on the biologists' needs. A query formulated in this query language will then be mapped to the extended SQL of the Unifying Database. A general, connected question is how the query result should be displayed. To enable high flexibility of the graphical output, the idea is to devise a graphical output description language whose commands can be combined with expressions of the biological query language.
The textual formulation of a query is frequently troublesome and only possible for the computationally experienced biologist. A visual language can help to provide support for the graphical specification of a query. The graphical specification is then evaluated and translated into a textual SQL representation which itself is executed by the Unifying Database. The design of such a visual language and the translation process are here the challenging issues.
As far as system interfaces are concerned, a number of XML applications exist for genomic data (e.g., GEML [9], RiboML [10], phyloML [12]). Unfortunately, these are inappropriate for a representation of the high-level objects of the Genomics Algebra. Hence, we plan to design our own XML application, which we name GenAlgXML.
6.5 Genomic index structures and genomic data optimization
We briefly mention two important research topics which are currently not the focus of our considerations but which will become relevant in the future, since they enhance the performance of the Unifying Database and the Genomics Algebra. These topics relate to the construction of genomic index structures and to the design of optimization techniques for genomic data.
As we add the ability to store genomic data, a need arises for indexing these data by using domain-specific, i.e., genomic, indexing techniques. These should support, e.g., similarity or substructure search on nucleotide sequences, or 3D structural comparison of tertiary protein sequences. The DBMS must then offer a mechanism to integrate these user-defined index structures.
The development of optimisation techniques for nonstandard data (e.g., spatial, spatio-temporal, fuzzy data) must currently be regarded as immature due to the complexity of these data. Nevertheless, optimisation rules for genomic data, information about the selectivity of genomic predicates, and cost estimation of access plans containing genomic operators would enormously increase the performance of query execution.
7. Vision
We believe our project will cause a fundamental change in the way biologists analyze genomic data. No longer will biologists be forced to interact with hundreds of independent data repositories each with their own interface. Instead, biologists will work with a unified database through a single user interface specifically designed for biologists. Our high-level Genomics Algebra allows biologists to pose questions using biological terms, not SQL statements. Managing user data will also become much simpler for biologists, since his/her data can also be stored in the Unifying Database and no longer will s/he have to prepare a custom database for each data collection. Biologists should, and indeed want to invest their time being biologists, not computer scientists.
From a computer science perspective, the main implications consist in obtaining extended knowledge about the design and implementation of new, sophisticated data structures and efficient algorithms in the non-standard application field of biology and bioinformatics. The Genomics Algebra comprising all these data structures and algorithms will be made publicly available so that other groups in the community can study, improve, and extend it.
From a database perspective, our project leverages and extends the benefits and possibilities of current database technology. In particular, we demonstrate the elegance and expressive power of modeling and integrating non-standard and extremely complex data by the concept of abstract data types into databases and query languages. In addition, our approach is independent of a specific underlying DBMS data model. That is, the Genomics Algebra can be embedded in a relational, object-relational, or object-oriented DBMS as long as it is equipped with the appropriate extensibility mechanisms. The separation of DBMS and application-specific type system demonstrates the generality and flexibility of our approach. For example, in the future it is possible to develop algebras for other application domains.
References
[1] S. F. Altschul, W. Gish, W. Miller, E. W. Myers, and D. J. Lipman, "Basic local alignment search tool," Journal of Molecular Biology, vol. 215, pp. 403-410, 1990.
[2] Bionavigator Inc., "BioNavigator," http://www.bionavigator.com.
[3] S. Davidson, J. Crabtree, B. Brunk, J. Schug, V. Tannen, C. Overton, and C. Stoeckert, "K2/Kleisli and GUS: Experiments in integrated access to genomic data sources," IBM Systems Journal, vol. 40, pp. 512-531, 2001.
[4] T. Etzold, A. Ulyanov, and P. Argos, "SRS: information retrieval system for molecular biology data banks," Methods Enzymol, vol. 266, pp. 114128, 1996.
[5] R. Hull, "Managing Semantic Heterogeneity in Databases: A Theoretical Perspective," Sixteenth ACM SIGACT-SIGMOD-SIGART Symposium on Principles of Database Systems, Tucson, Arizona, 1997.
[6] IBM Corp., "DiscoveryLink," http://www.ibm.com/discoverylink.
[7] R. McEntire, P. Karp, N. Abernethy, D. Benton, G. Helt, M. DeJongh, R. Kent, A. Kosky, S. Lewis, D. Hodnett, E. Neumann, F. Olken, D. Pathak, P. Tarczy-Hornoch, L. Toldo, and T. Topaloglou, "An Evaluation of Ontology Exchange Languages for Bioinformatics," 2000 Conference on Intelligent Systems for Molecular Biology, 2000.
[8] N. W. Paton, R. Stevens, P. G. Baker, C. A. Goble, S. Bechhofer, and A. Brass, "Query processing in the TAMBIS bioinformatics source integration system," 11th International Conference on Scientific and Statistical Databases, 1999.
[9] Rosetta Biosoftware, "The Gene Expression Markup Language (GEML)," http://www.rosettabio.com/products/conductor/geml /default.htm.
[10] Stanford Medical Informatics, "RiboML," http://www.smi.stanford.edu/projects/helix/riboml/.
[11] M. Stonebraker, "Inclusion of New Types in Relational Data Base Systems," 2nd International Conference On Data Engineering, 1986.
[12] Washington and Lee University, "phyloML," http://cs.wlu.edu/~roycet/phyloML/.
|
Government of West Bengal
Office of the Principal Jalpaiguri Government Engineering College Jalpaiguri -735102
Memo No. JGEC/2020/Security1
Date: 04.04.2020
Notice Inviting Quotation of "Man power for SECURITY of the campus at Jalpaiguri Govt. Engineering College
Period of agreement: One month or till the engagement of security agency as per West Bengal Govt. order whichever is earlier
(Section I)
Office of Issue
: Office of the Principal
Jalpaiguri Government Engineering College (JGEC)
Jalpaiguri -735102
NIQ No.
: JGEC/ 2020/Security1
Date of issue of bid document: 04.04.2020
Quotation Forms Available From:www.jgec.ac.in
Last date of Receipt
: 11.04.2020, 2.00 .pm. Soft copy through E-mail & Hand delivery of hardcopy to caretaker
Date of opening of Technical bid: 11.04.2020, 2.30 p.m.
Date of opening of Financial bid: 11-04.2020, 3.30 p.m.
Cost of Bid Document
Earnest Money
: NIL : NA
Total manpower
: 07 Nos.
Sealed limited quotations as (1) "Technical Bid" & (2) "Financial Bid" are invited from interested and eligible firms for "Supply of Security guards" in Jalpaiguri Government Engineering College. The Technical & Financial bids ( separately) should be sealed by the bidder in cover duly superscripted "Technical Bid" & "Financial Bid " with NIQ No.: "JGEC/ 2020 / Security1. Bidders are advised to go through the quotation document carefully and understand various provisions contained therein along with their implications. The quotation document is not transferable under any circumstances. Intending eligible bidders may obtain a copy of bid document from the website of Jalpaiguri Govt. Engg. College i.e.,www.jgec.ac.in
For any clarification regarding any terms and conditions of the Quotation, bidders may contact to the Caretaker Section of Jalpaiguri Govt. Engg.College.
(Section – II)
INSTRUCTIONS FOR SUBMISSION OF QUOTATION
1. BONAFIDE BIDDER
Pre-qualification (PQR) for participation: ( proofs to be attached)
a) IT, ST, Clearance Certificates as applicable or suitable certificate bearing exemption to any or all of above from the competent authority.".
b)
c) PAN Card.
d) Valid "Certificate of Incorporation"/ "Trade License
e) EPF / PF registration certificate.
f) ESI registration Certificate.
g) Registration under Private security Agencies ( Regulation ) Act, 2005.
h) Credential Certificate of satisfactory completion of similar kind of work in the last three years.
2. QUOTATION DOCUMENT
The quotation must be submitted through a „Letter of Submission of Quotation' as per Annexure-I in the manner indicated below, failing which the quotation is liable to be rejected. Incomplete or conditional quotation is also liable to be rejected.
3. SUBMISSION OF QUOTATIONS - TIME LIMIT/MODE
The quotation documents duly completed should be submitted in an envelope superscripted as "Technical Bid" & "Financial Bid"- NIQ No.:JGEC/2020/Security1 a addressed to "The Principal, Jalpaiguri Govt. Engg. College ,Jalpaiguri - 735102". Scanned copy of the application must be sent through e-mail to the firstname.lastname@example.org and Hard copy of the documents to be handed over to the caretaker, Jalpaiguri Government Engineering College, Jalpaiguri as Government has instructed for lockdown due to COVID-19 epidemic and all documents will be analysed and processed from Home.
4. THE FOLLOWING DOCUMENTS MUST BE SUBMITTED IN THE "TECHNICAL BID"
Technical Proposal (Statutory Documents): (To be submitted in Technical Cover)
a) Valid "Certificate of Incorporation"/ "Trade License".
b) PAN Card in the name of Firm/ Agency/ Proprietor
c) EPF / PF registration certificate .
d) ESI registration Certificates .
e) P-Tax registration Certificates .
f) Registration under Private security Agencies ( Regulation ) Act, 2005.
g) GST registration Certificates .( if required)
5. THE FOLLOWING DOCUMENTS MUST BE SUBMITTED IN THE "FINANCIAL BID"
Financial Proposal: (To be submitted in "Finance" Cover)
Unit price/Unskilled Security guard must be mentioned I the Financial bid documents. The unit price will be inclusive of all the charges as per West-Bengal Govt. minimum wage rate act.
Requirements:
07 Nos. of unskilled Security guards for one month as per minimum wage rate notified by the Govt of West-Bengal or till engagement of new security services as per Govt. order whichever is earlier.
6. TERMS & CONDITIONS GOVERNING THE CONTRACT
GENERAL TERMS & CONDITIONS
1. Terms and conditions for participating in the tender
a) Payment to the Security guard will be made at the minimum rates of wages in the employment of man power Services in the State of West Bengal as per latest notification by Labour Department.
b) Existing Minimum wages as per WB Govt Order from that month will be applicable after the signing of the agreement on the award of the contract.
c) College reserves the right to reject any tender without assigning any specific reasons.
d) The required manpower and Payment to the Security guards may be increased /decreased as per unit manpower rate.
e) The Agency should provide monthly agency charge for the work.
7. Selected Agency shall perform the following jobs and any other as may be required from time to time (this list is indicative and not exhaustive): -
a. The contractor should have to provide security guards, and supervisors etc to carry out 24x7 at different location of Jalpaiguri Government Engineering College.
b. The authority may call for proof of fitness, including police verification from the contractor in respect of any guards/ supervisors/gunman etc if necessary.
c. The contractor shall, in respect of each employee, supply to the authority the following information:- Name, Father's Name, Date of Birth, Educational Qualification with permanent address and a passport size photograph with identity proof.
d. The contractor shall not substitute a Guard/Supervisor without the approval of the authority. The authority may advise replacement of any or / all of the employee(s) of the contractor if not fully meet the security requirement.
e. The security personnel provide by the contractor to the JGEC shall be treated as employees of the contractor for all purpose.
f. In any circumstances, the JGEC may issue order to the contractor to reduce/increase staff strength as specified by the authority and the contractor value will be changed proportionately.
8. 1. DUTIES OF THE SECURITY STAFFS SHALL INCLUDE AS FOLLOWS :-
i. To extend all courtesy to visitors, officers and employees of JGEC and maintain integrity, orderliness and discipline and be in proper uniform while on duty and should carry out all duties and tasks allotted by JGEC authority sincerely and to the best of his ability.
ii. To guard/patrol/check during day and night time and ensure that no theft, pilferage, trespass, accident, nuisance, disturbance of peace etc. takes place in the area of his duty.
iii. To regulate and check the flow of visitors, materials, transport, vehicles etc. at the entry points and also ensure the entry/exit is as per valid documents and expeditious record of the same is maintained as per order.
iv. To Seize goods not found in order or suspected to be stolen.
v. To watch the fire equipment installed in the area under his watch in working condition and or it found any disorder should bring to the notice of his Supervisor.
vi. To bring to the immediate notice of his supervisor or the JGEC authority towards any untoward occurrence on the premises.
vii. To perform incidental and allied duties as may be required to be performed.
viii. Attendance of all the staffs with uniform is a mandatory requirement. Agency should report to Caretaker of the college daily.
2. Other Terms and Conditions:
a. The College holds no liability for any injury, accident or accidental death etc for any person which may occur in course of the works pertaining to the enforcement of proposed security measures. The question of compensation arising out of cases shall have to be settled by the agency itself entirely at its own cost and responsibility.
b. While performing the jobs the agency or its employees shall always act in a way so as not to cause any unreasonable embarrassment or inconvenience to the officers and other employees of the State Govt. working in the College premises or any member of public coming to College.
c. Payment shall be made on presentation of monthly bills and satisfactory completion of jobs while utmost attention will be paid for prompt payment the State Govt shall not be responsible for usual delay for observing necessary formalities for passing such bills and preparation of cheques.
d. The Agency and its employee shall work in collaboration with the officials of the P.W.D. of the State Govt. having the charge of the affairs of the campus of the College.
e. The agency shall follow strictly latest minimum wages as laid down in the order of the Labour Department, Govt. of West Bengal providing the amenities namely E.S.I., Gratuity, Provident Fund, Bonus, Scheduled working hours, medical benefit, Insurance etc.
f. Payment will be made as per directives of the controlling authority.
g. Rates of Minimum wages and service tax will vary from time to time as per Got. Rules.
h. If the State Govt. considers that the jobs are not being performed satisfactorily or any or all of the terms and conditions as specified herein have been violated the State Govt. may terminate the contract.
i. Agency should provide uniforms to their personnel of all categories. Personnel should wear their uniforms during discharge of their duties. Refusing to wear uniforms by any personnel shall be treated as an act of indiscipline.
j. The terms and conditions stated in the tender document may alter during execution of agreement with consent of both College and the successful bidder.
NOTE:
1) Non-fulfilment of one or more of the conditions stated above may lead to cancellation of submitted tender of the bidding party.
2) Basic Minimum monthly wages rate will be as per latest G.O. of Govt. of West Bengal,
Department of Labour.
3) Others Components like EPF, ESI, BONUS & GST ( if required ) etc. will be as per Govt. rule applicable.
4) L1 bidder will be selected on the basis of "LOWEST" agency charges.
5) For any clarification/ doubt interested bidder(s) may contact the college office during office hours.
_______________________________________________________________________________
9. OPENING OF Quotations:
As per mentioned date & time, the technical and financial Quotations will be opened and results will be communicated to the bidder as the application will be processed during lockdown period due to COVID-19 outbreak.
10. VALIDITYOF OFFER:
The bidder will be required to keep the offer open for a period of 30 days (one hundred and twenty) days from the last date of submission of Quotation . It shall be understood that the Quotation document have been sold/issued to the bidder and the bidder is permitted to Quotation with the stipulation that after submitting his Quotation , he shall not rescind his offer or modify the terms and conditions thereof in any manner that is not acceptable to JGEC.
11. ACCEPTANCE OF QUOTATION:
a. The authority for acceptance of the Quotation documents and quoted rates will rest with the competent authority of JGEC who does not bind himself to accept the lowest or any other quotation , nor does he undertake to assign reasons for his decision in this matter.
b. Acceptance of quoted rates will be communicated through a letter as soon as possible.
c. All the quotation documents submitted by a bidder shall become the property of JGEC and JGEC shall have no obligation to return the same to the bidders.
d. Canvassing in connection with quotation is strictly prohibited and the quotation submitted by the bidder who resorts to canvassing will be liable for rejection.
e. If the bidder deliberately gives wrong information or conceals any information/facts in his quotation , which shall be favourable for acceptance of his quotation fraudulently, then JGEC reserves the right to reject such quotation at any stage of execution without any financial liability.
f. The bidder shall treat the contents of the quotation documents as private and confidential
12. Agreement:
Within 7 days of the placement of confirmed work order to the agency.
13. PAYMENT TERMS:
(i) 100% payment shall be released on satisfactory submission of bills and supporting documents required as per Govt. order.
(ii) Taxes will be deducted as per applicable rules.
(iii) Tax invoice(s) needs to be issued by the supplier for raising claim under the contract showing separately the tax charged( if required) in accordance with the provisions of GST Act, 2017
JGEC reserves the right to terminate the Agreement any time without assigning any reason/notice.
14. CRITETRIA FOR EVALUATION OF Quotations:
Technical Evaluation : As per requirement ( Clause. 4):
Financial Evaluation:- It will be done among the Technically qualified Agency and on the basis of lowest Agency Charges L1 will be selected.
Contract will be awarded to the firms which emerge as L1 as per purchase rules.
ANNEXURE - I LETTER OF SUBMISSION OF Quotation
To
The Principal Jalpaiguri Govt. Engg. College Jalpaiguri - 735102
Subject: Quotation for "Man power for SECURITY of the campus at Jalpaiguri Govt. Engineering
College campus"
Quotation Notice No. ____________________________
Dear Sir,
Subject to the conditions given in the quotation documents for the above mentioned contract, I/We hereby quotation for the contract for supplying material as Contractor for JGEC for its office at the rates specified in the S.O.R.(Annexure- VI) annexed with the documents. I/We hereby certify that I We have examined and am/are fully familiar with all the provisions of the contract documents and I/We are satisfied that they are accurate and agree to abide by all these terms and conditions laid therein.
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INFLUENCE OF COVER CROPS ON INSECT PESTS AND PREDATORS IN CONSERVATION-TILLAGE COTTON
G. Tillman 1* , H. Schomberg 2 , S. Phatak 3 , and S. Lachnicht 4
1USDA-ARS, P. O. Box 748, Tifton, GA 31793, USA
3University of Georgia, P. O. Box 748, Tifton, GA 31793, USA 4
2USDA-ARS, 1420 Experiment Station Road, Watkinsville, GA, 30677, USA
USDA-ARS, 803 Iowa Avenue, Morris, MN, 56267, USA
*Corresponding author's e-mail: firstname.lastname@example.org.
ABSTRACT
In the fall of 2000, an on–farm sustainable agricultural research project was established for cotton, Gossypium hirsutum L., in Tift County, Georgia. The objective of our 2-yr research project was to determine the impact of several cover crops on pest and predator insects in cotton. The five cover crop treatments included: 1) cereal rye, 2) crimson clover, 3) a legume mixture of balansa clover, crimson clover, and hairy vetch, 4) a legume mixture + rye combination, and 5) no cover crop in conventionally-tilled fields. Three main groups of pests were collected in cover crops and cotton: 1) the heliothines, Heliothis virescens (F.) and Helicoverpa zea (Boddie), 2) the tarnished plant bug, Lygus lineolaris (Palisot de Beauvois), and 3) stink bugs. The main stink bugs collected were the Southern green stink bug, Nezara viridula (L.), the brown stink bug, Euschistus servus (Say), and the green stink bug, Acrosternum hilare (Say). For both years of the study, the heliothines were the only pests that exceeded their economic threshold in cotton, and the number of times this threshold was exceeded in cotton was higher in control cotton than in crimson clover and rye cotton. Heliothine predators and aphidophagous lady beetles occurred in cover crops and cotton during both years of the experiment. Geocoris punctipes (Say), Orius insidiosus (Say) and red imported fire ants, Solenopsis invicta Buren were relatively the most abundant heliothine predators observed. Lady beetles included the convergent lady beetle, Hippodamia convergens Guerin-Meneville, the seven-spotted lady beetle, Coccinella septempunctata [L.], spotted lady beetle, Coleomegilla maculata (De Geer) and the multicolored Asian lady beetle, Harmonia axyridis (Pallas). Density of G. punctipes was higher in cotton fields previously planted in crimson clover compared to control cotton fields in 2001. Intercropping cotton in live strips of cover crop was probably responsible for the relay of G. punctipes onto cotton in these crimson clover fields. Conservation of the habitat of fire ants during planting probably was responsible the higher density of red imported fire ants observed in all conservation-tillage cotton fields relative to control cotton fields. Reduction in the number of times in which economic thresholds for heliothines were exceeded in crimson clover and rye compared to control fields indicated that the build up of predaceous fire ants and G. punctipes in these cover crops subsequently resulted in reduction in the level of heliothines in conservation-tillage cotton with these cover crops compared to conventional-tillage cotton without cover crops.
INTRODUCTION
As a result of frequent and intense disturbance, many agricultural systems are recognized as particularly difficult environments for natural enemies (Landis and Marino, 1999). Conservation tillage along with cover crops reduces this frequent disturbance and helps promote year-round natural enemy and pest species interactions by providing alternate prey or hosts, reproductive sites and protection from adverse conditions. Cover crops in reduced tillage systems offer a simple approach to pest management, but more information on the impact of cover crops on targeted pests
and predators are needed to facilitate design of appropriate landscapes. A significant amount of research has been conducted on using rye, crimson clover and hairy vetch as cover crops in conservation-tillage systems the south (Reeves, 1994). Further research has focused on the use of these cover crops with conservation tillage in cotton, Gossypium hirsutum L., in the south to enhance beneficial insects (Bugg et al., 1991: McCutcheon et al., 1995: Ruberson et al., 1995; Ruberson et al., 1997; McCutcheon, 2000). Most studies have focused on comparisons among single species of legumes and non-legumes (Reeves, 1994). No studies have addressed the impact of using mixtures of legume species as winter cover crops in cotton on natural enemies even though they can provide a more diverse biological habitat through an extension of availability of nectar and other food sources (Altieri, 1995). The objective of our 2-yr on-farm research project in Tift County, Georgia was to determine the impact of cereal rye, crimson clover, a legume species mixture (balansa clover, crimson clover, and hairy vetch) and a combination of this legume mixture and rye on pest and predator insects in cotton.
MATERIALS AND METHODS
The five cover crop treatments included: 1) cereal rye 2) crimson clover, 3) legume mixture of balansa clover, crimson clover and hairy vetch, 4) legume mixture + rye combination, and 5) no cover crop in conventionally-tilled fields. The mixture of an early (balansa clover), mid (crimson clover) and late (hairy vetch) flowering legume was chosen to extend the availability of a habitat of flowering plants in the field that could be attained from planting any legume species alone. For the legume mixture-rye treatment, the rye was planted in the center of the row where the cotton would be planted in the summer while the legume mixture was planted on each side of the rye. The combination of the legume mixture and rye was chosen in an effort to combine the benefits of legume nectar production and N fixation with enhanced biomass production of rye.
Cover crops were planted in the fall using a grain drill. Rye and crimson clover treatments were planted at a rate of 56 and 16.8 kg of seeds per ha, respectively. For the legume mixture, rates of 1.01, 3.47, and 2.13 kg of seeds per ha were used for balansa clover, crimson clover, and hairy vetch, respectively. All of the cover crops, except for rye, were strip-killed in the center of the row with an herbicide approximately 2 weeks before cotton planting. In the spring of 2001, a 46-cm strip of cover crop was killed in the center of the row leaving a 46-cm strip of live cover crop between dead strips. In the spring of 2002, a strip of cover crop ca. 53 cm wide was killed in the center of the row leaving 38-cm strips of live cover crop.
Cotton was strip-tilled using cotton producers' strip-till rigs. Cotton was planted at 11.2 kg/ha on all fields using planters either during or after strip-tilling the cover crops. Cotton varieties included DP 458, DP 5415, DP 5690 and Delta Pearl. Cotton was harvested using cotton pickers. Four-row swaths of cotton 120–150 m long were picked in each field. Cotton was weighed immediately after machine harvest in the field to determine seed-cotton yields. Seed-cotton yield data were analyzed by PROC MIXED followed by least significant difference (LSD) separation of means (SAS Institute 1999) where appropriate. Fixed effects were cover crop treatments and random effects were cotton producers' fields and residual error.
Twenty fields were located in various locations in Tift County, Georgia. Large, 4-ha fields were used for each cover crop treatment to limit dispersal of predators from the fields. Each cover crop treatment was assigned randomly to 4 fields similar to a completely randomized design. In the second year of the project, one crimson clover and one rye field were eliminated from the study. The completely randomized design served as the main plot portion of the following split plot description. Each field was completely subdivided into 50 m² sampling plots. Insect pests and predators on plants
were sampled each sampling week in each cover treatment for cover crops in the spring and cotton in the summer using sweep nets. In each field, 20 to 21 sampling plots were sampled. The experimental design describes a split plot in space (sampling location) and time (sampling weeks) with subsamples present in the sections.
Exhaustive whole plant sampling was done to monitor heliothine species in cotton. Sampling occurred weekly before the heliothines, Heliothis virescens (F.) and Helicoverpa zea (Boddie), occurred on cotton and biweekly thereafter. The sampling scheme was similar to that for sweep sampling, except that a single plant was sampled in each of the 50 m² sampling areas.
Insect pest and predator density data from sweep and whole plant samples were analyzed by PROC MIXED (SAS Institute, 1999) to obtain least squares means and their associated standard errors. Fixed effects were sample location, sample week, and sample location × sample week. Comparisons between least squares means between cover crop treatments were then performed for each crop type using one-tailed t-tests. Comparisons between least squares means were performed using square-root transformed data.
Economic threshold for heliothines was 5% infestation of first instars on cotton plants. For stink bugs (nymphs and adults), the economic threshold was 20% of the medium-sized bolls (ca. 14 d-old) with internal feeding damage. Economic threshold for the tarnished plant bug, Lygus lineolaris (Palisot de Beauvois) (nymphs and adults), was considered to be reached when plants were retaining less than 85% of the pinhead squares. Economic threshold for the cotton aphid, Aphis gossypii Glover (all forms), was abundant aphids with slightly curled seedling leaves. The number of dates where the level of H. virescens and/or H. zea exceeded the economic threshold was analyzed by PROC GLM followed by LSD separation of means (SAS Institute 1999) where appropriate.
RESULTS AND DISCUSSION
Four main groups or species of pests were collected in sweep samples: 1) aphids, 2) tarnished plant bugs, 3) stink bugs and 4) the heliothines, H. virescens and H. zea. In our study the cotton aphid infested only cotton plants. The main stink bugs collected in this study were the Southern green stink bug, Nezara viridula (L.), the brown stink bug, Euschistus servus (Say) and the green stink bug, Acrosternum hilare (Say). For both years of the study, the heliothines were the only pests that exceeded their economic threshold in cotton. The number of times in which the heliothines exceeded their economic threshold in cotton was significantly higher in control cotton than in crimson clover and rye cotton in 2001 (F = 3.04, df = 4, 13, P = 0.05) and 2002 (F = 3.07, df = 4, 13, P = 0.05) (Table 1).
The main predators in cover crops and cotton during both years of the experiment were heliothine predators and aphidophagous lady beetles. The major heliothine predators were G. punctipes, O. insidiosus and red imported fire ants, Solenopsis invicta Buren. Lady beetles included the convergent lady beetle, Hippodamia convergens Guérin-Méneville, the seven-spotted lady beetle, Coccinella septempunctata [L.], spotted lady beetle, Coleomegilla maculata (De Geer) and the multicolored Asian lady beetle, Harmonia axyridis (Pallas).
Red imported fire ants were highest in the legume mixture and lowest in the rye in comparisons among the four cover crop treatments in the spring of 2001 (Table 2). Crimson clover was the only cover crop in which fire ants were present every sampling period. The next spring, fire ants were not significantly different in crimson clover, the legume mixture and the legume-rye combination, but significantly lower in the legume mixture compared to the other three cover crops (Table 3). In the
summer of both years of the study, red imported fire ant were significantly greater in conservationtillage cotton fields planted with cover crops than in conventional-tillage cotton fields left fallow during the winter (Tables 2 and 3). In the summer of 2001, crimson clover and rye cotton harbored significantly higher numbers of the red imported fire ants than legume and legume-rye cotton. The next cotton season, though, numbers of this predator were significantly lower in rye than in the other three treatments with cover crops.
For both years, crimson clover and the legume mixture cover crops harbored significantly higher numbers of G. punctipes and O. insidiosus compared to the two cover crop treatments with rye, and numbers of these two predators were significantly greater in the legume-rye combination treatment than in rye (Tables 2 and 3). Only the crimson clover and legume cover crop treatments harbored significantly higher numbers of G. punctipes in the cover crops in the spring compared to cotton in the summer. All legume treatments harbored significantly higher numbers of O. insidiosus in the cover crops compared to cotton. In the spring of 2001, G. punctipes was significantly higher in crimson clover treatments than in any of the other cover crop treatments indicating that this predator was highly attracted to this legume (Tables 2). In 2001, density of G. punctipes was significantly higher in cotton fields previously planted in crimson clover compared to control cotton fields. In contrast, for both years of the study there was no significant difference in number of O. insidiosus between crimson clover cotton and control cotton.
For both years, crimson clover and the legume mixture harbored significantly higher levels of lady beetles compared to the two cover crop treatments with rye indicating that the legumes were a more suitable habitat for lady beetles than the grass in the spring (Tables 2 and 3). In 2001, the number of lady beetles was significantly higher in cotton for all cover crop treatments, except the legume mixture, than for the cover crops in the spring. Nevertheless, the number of lady beetles in control fields was still significantly higher than in the other four cover crop treatments in cotton. In 2002, the number of lady beetles was significantly higher in cotton than in cover crops for only the legume-rye and rye treatments. In cotton, lady beetles were significantly higher in rye cotton than in cotton intercropped in the three other cover crops, but no significant differences occurred in numbers of lady beetles between the fields with cover crops and control fields.
Seed-cotton yields were significantly different among treatments for 2001 (F= 4.07, df = 4, 25, P = 0.01) and 2002 (F = 6.2, df = 4, 17, P = 0.01) (Table 4). In the first year of the test, seed-cotton yields were significantly higher for cotton with crimson clover and legume mixture-rye combination than for control cotton without cover crops while the yields for the legume mixture and rye treatments were not significantly different from those for the controls. In 2002, all cover crop cotton fields, except for the rye fields, had significantly higher seed-cotton yields compared to control fields. Since yields for cover crop treatments were never lower than those for control cotton, we concluded that planting cotton in strip-killed/tilled cover crops did not adversely affect cotton production.
In this on-farm study, we compared conventional tillage and winter-fallow practices to strip-tillage with four diverse cover crops designed to enhance natural enemies in cotton by promoting the increase of populations of these natural enemies in the spring and encouraging these natural enemies to relay from the spring cover crops into cotton. The goal of mixing the three legume species was to extend flowering to promote better relay of predators from the cover crop to cotton. Timing of initial flowering and seasonal succession of flowering for these cover crops occurred so that the numbers of G. punctipes, O. insidiosus and lady beetles built up in the spring in the cover crops especially in the legume mixture and crimson clover treatments. By strip-killing and strip-tilling the legume cover
crops, a live strip of cover crop was available as a habitat for the natural enemies in the late spring when cotton was planted.
Enhancement of G. punctipes in conservation-tillage cotton has not been previously reported for this predator for any cover crop. Gaylor et al. (1984) reported that at the time of peak heliothine population density on cotton, significantly more predators, Geocoris spp. and spiders, existed on cotton in the conventional tillage treatments than in the conservation tillage treatments with cover crops. The stressed condition of the cotton grown under conservation-tillage with crimson clover as a cover crop may have been responsible for the lower populations of these predators observed in crimson clover cotton compared to control cotton. Ruberson et al. (1995) reported that in the summer of 1994 populations of G. punctipes were reduced in a conservation-tillage cotton field relative to a conventional-tillage cotton field. In a second study conducted by Ruberson et al. (1997) no differences in G. punctipes populations were detected between crimson clover cotton and conventional-tillage cotton without a cover crop. In our study, we maintained a strip of live crimson as a habitat for G. punctipes whereas in the other reported studies the crimson clover was completely killed before planting the main crop. Maintaining this live strip of cover crop was probably responsible for the relay of G. punctipes in crimson clover cotton fields.
Conservation of habitat of fire ants during planting probably was responsible the higher density of red imported fire ants in conservation-tillage cotton with cover crops relative to control cotton. Similarly, Ruberson et al. (1995) reported that the presence of red imported fire ants in clover fields might have been a function of reduced tillage than use of the cover crop. McCutcheon et al. (1995) demonstrated that densities of the red imported fire ant were highest in cotton in non-cultivated plots that had a crimson clover cover than in cultivated plots. In a later study, McCutcheon (2000) determined that fire ants were more abundant in rye/no-till treatments than in rye/disk treatments.
Reduction in the number of dates in which economic thresholds for heliothines were exceeded in crimson clover and rye compared to control fields indicates that the build up of predaceous fire ants and G. punctipes in crimson clover and rye subsequently resulted in reduction in the level of heliothines in these cover crop compared to control cotton fields. Geocoris punctipes is known to be one of the most predominant and effective predators of H. zea and H. virescens in cotton (Bell and Whitcomb, 1963; Lopez et al., 1976), and fire ants have been reported to be excellent predators of a variety of cotton pests (Showler and Reagan, 1987). McCutcheon et al.'s (1995) report that the higher densities of fire ants in non-cultivated compared to cultivated plots possibly resulted in the reduced densities of heliothine eggs in non-cultivated plots versus cultivated ones is in agreement with our conclusions about the suppressive activity of fire ants against heliothines in conservation tillage cotton.
ACKNOWLEDGMENTS
We thank the Sustainable Agriculture Research and Education Program of CSREES, USDA for financial support of this research.
REFERENCES
Altieri, M. A. 1995. Agroecology, the science of sustainable agriculture, 2nd ed. Westview Press, Boulder CO.
Bell, K. O, Jr., and W. H. Whitcomb. 1963. Field studies on egg predators of the bollworm, Heliothis zea (Boddie). Fla. Entomol. 47: 171-180.
Bugg, R. L., F. L. Wäckers, K. E. Brunson, J. D. Dutcher, S. C. Phatak. 1991. Cool-season cover crops relay intercropped with cantaloupe: Influence on a generalist predator, Geocoris punctipes (Hemiptera: Lygaeidae). J. Econ. Entomol. 84: 408–416.
Gaylor, J. G., S. J. Fleischer, D. P. Muehleisen, and J. V. Edelson. 1984. Insect populations in cotton produced under conservation tillage. J. Soil Water Conserv. 39:61:64.
Landis, D. A., and P. C. Marino. 1999. Landscape structure and extra-field processes: impact on management of pests and beneficials, pp. 79–104. In J. Ruberson (ed.), Handbook of Pest Management. Marcel Dekker, New York.
Lopez, J. D., Jr., R. L. Ridgway, and R. E. Pinnell. 1976. Comparative efficacy of four insect predators of the bollworm and tobacco budworm. Environ. Entomol. 5: 1160-1164.
McCutcheon, G. S, P. J. Bauer, J. G. Alphin, and J. R. Frederick. 1995. Population dynamics of insect pests and beneficial arthropods in a crimson clover/cotton ecosystem with conservation tillage cotton, pp. 103–107. In Proceedings, Southern Conservation Tillage Conference for Sustainable Agriculture, 26–27 June 1995, Jackson, MS. Mississippi Agricultural & Forestry Experiment Station, Mississippi State, MS.
McCutcheon, G. S. 2000. Beneficial arthropods in conservation tillage cotton – a three year-study, 1302–1306. In Proceedings, Beltwide Cotton Conferences. National Cotton Council, Memphis, TN.
Reeves, D. W. 1994. Cover crops and rotations, pp.125–172. In J. L. Hatfield and B. A. Stewart [eds.], Crops residue management. Advances in soil science. Lewis Publishers, Boca Raton, FL.
Ruberson, J. R., W. J. Lewis, D. J. Waters, O. Stapel, P. B. Haney. 1995. Dynamics of insect populations in a reduced-tillage, crimson clover/cotton system, pp. 814–821. In Proceedings, Beltwide Cotton Conferences. National Cotton Council, Memphis, TN.
Ruberson, J. R., S. C. Phatak, and W. J. Lewis. 1997. Insect populations in a cover crop/strip till system, pp. 1121–1124. In Proceedings, Beltwide Cotton Conferences. National Cotton Council, Memphis, TN.
SAS Institute. 1999. SAS/STAT user's guide, version 8. SAS Institute, Cary, NC.
Showler, A. T., and T. E. Reagan. 1987. Ecological interactions of the red imported fire ant in the southeastern United States. J. Entomol. Sci. Suppl. 1: 52-64.
Table 1. Mean number of dates in which heliothines exceeded the economic threshold in cotton for all cover crop treatments in 2001 and 2002
Means within a column followed by the same letter are not statistically different between treatments
(PROC GLM, LSD, P > 0.05).
b Legume mixture = balansa clover, crimson clover and hairy vetch.
a Refers to the number of fields for each cover crop treatment.
Table 4. Least squares means for seed-cotton yield for all cover crop treatments in 2001 and 2002
Least square means within a column followed by the same letter are not significantly different between treatments (PROC MIXED, LSD, P > 0.05).
b Legume mixture = balansa clover, crimson clover and hairy vetch.
a Refers to the number of fields for each cover crop treatment.
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The early motor milestones in infancy and later motor
impairments: a population-based data linkage study
Jing Hua 1* † , Gareth J. Williams PhD 2 , Hua Jin 3 † , Juan Chen MD 4 , Manyun Xu 4 , 1
Yingchun Zhou 4 , Guixiong Gu 5 , Wenchong Du 6* 2
3
†Contributed equally 4
1Maternity and children's health care department, Shanghai First Maternity and Infant 5
Hospital, Tongji University School of Medicine, Shanghai, China; 6
2School of Social Sciences, Nottingham Trent University, Nottingham,UK; 7
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Health Care Department of Suzhou Ninth People's Hospital, Suzhou, China;
4KLATASDS-MOE, School of Statistics, East China Normal University, Shanghai, 9
China; 10
5Pediatrics Research Institution of Soochow University, Suzhou, China; 11
6NTU Psychology, Nottingham Trent University, Burton Street, Nottingham, UK. 12
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* Correspondence: 14
Wenchong Du Ph.D, NTU Psychology, Nottingham Trent University, Burton Street, 15
Nottingham, UK, NG1 4BU [firstname.lastname@example.org] 16
Jing Hua Ph.D., Shanghai First Maternity and Infant Hospital, Tongji University School 17
of Medicine, 2699 Gaoke Road, Shanghai, China [email@example.com] 18
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Total word count: 3538. 20
Number of Figures: 21
* Figure 1 Flowchart of the study population 22
* Figure 2 Association of walking and crawling during infancy with motor impairments by 23 different age group in children aged 3-4 years old (n=3469) 24
* Figure 3 Association of walking and crawling during infancy with DCD by different age 25 group in children aged 5-6 years old (n=4926) 26
Number of Tables: 2. 27
Key Words 29
Motor impairment; Developmental Coordination Disorder; Crawling; Independent 30
walking; early motor milestone. 31
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Background: Developmental Coordination Disorder (DCD) is a neurodevelopmental 34 condition with high prevalence. Early motor milestones are important markers to identify 35 DCD. The current study aims to evaluate the association between the onset of crawling 36 and independent walking and their transition pattern during infancy and later motor 37 impairments. 38
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Methods: A total of 8395 children aged 3-6 years old in China were included in the final analysis. A parent questionnaire was used to collect early milestone onset data. Children's motor performance was measured using the Movement Assessment Battery for Children-2nd edition (MABC-2). The association between motor milestones and motor impairment was analyzed using a multilevel regression model.
Results: The result showed that a one-month delay in crawling onset increased the risk of significant overall motor impairment by 5.3%, and 14.0% when adjusting for child and family characteristics. A one-month delay in walking onset increased the risk of significant overall motor, fine, gross, and balance impairment by 21.7%, 8.3%, 13.3%, and 17.8%. A one month increase in the transition time from crawling to independent walking increased the risk of significant overall motor and gross motor impairment by 7.7% and 6.6%. These results were inconsistent across different age bands (each p<0.05).
Conclusions: Our study indicates that even a mild delay in crawling and walking onsets in infancy increase the risk for subsequent motor impairments in childhood, and children with motor impairments revealed a different transition pattern from crawling to walking. The motor abilities of children with motor impairments can be observed to diverge from typically developing children as early as 6-8 months old. The findings can facilitate the early identification of motor impairments in children, and provide early signs to initiate intervention.
1 Introduction 67
Developmental Coordination Disorder (DCD) is a neurodevelopmental condition marked 68 by impairments of motor coordination. Studies have shown that the prevalence of DCD is 69 around 5-6% in school-aged children(1,2). One of the diagnostic criteria of DCD 70 emphasizes that symptoms of DCD can be observed from early childhood(3,4), and early 71 intervention can help to reduce the emotional, physical, and social consequences that are 72 often associated with this disorder(5,6). Therefore, it is important to understand what 73 early signs in motor development are associated with later motor impairments, when 74 motor abilities of children with DCD start to diverge from typical developmental 75 children, and to what extent the delays in motor development can facilitate the early 76 identification of DCD. 77
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During infancy, motor development is manifested at the behavioural level as a progression of new motor milestones (e.g., crawling, walking, etc.). Delayed motor milestone onsets during infancy can reflect a delay in physical and neurological development, and therefore is an important early identifier of childhood developmental disorders(7). For children with DCD, however, very few studies have specifically focused on that timeframe of motor milestones(8,9). Findings, with a small sample, indicate that only children with DCD but not children with Autism reach key motor milestones significantly later than typically developed children (10). Moreover, motor milestones have been suggested as a potential early symptom of DCD by DSM-5(3). However, there was a lack of consistent data on whether there is an association between
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motor milestones and motor impairments
the motor milestone delays and DCD(11), and to what extent the delays in motor milestones can aid in the early identification of motor impairments.
Additionally, motor development requires peripheral and biomechanical readiness for engendering developmental change(12). The change from crawling to walking is one of the most significant examples of this process. As a qualitative change in development, the transition reflects the rate of change in body control and coordination skills. Most infants start to walk independently after crawling(13), and the transition from crawling to walking spans several weeks. However, such developmental trajectory data are lacking in DCD. To our knowledge, the only relevant data in the literature did not find the transition time from crawling to walking is different between children with DCD and controls, but the small sample size of the study makes it hard to draw a reliable conclusion (10). It is therefore unclear whether children with DCD have a different developmental pattern in their transition from crawling to walking compared to typically developing children, and to what extent the pattern can facilitate the early identification of DCD in infancy.
Therefore, in this study, we conducted a population-based study to explore a longitudinal association between early motor milestones and motor impairment reported at a later age (3-6 years old). We hypothesized that DCD children have a delayed onset of motor milestones and may also develop at a slower rate compared to their typically developing peers. Therefore, the objectives of the current study were: firstly to evaluate to what extent the onset of crawling and walking in early infancy is associated with later motor impairment, and secondly whether children with motor impairment follow a
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Children's motor impairments were assessed using the Movement Assessment Battery for Children-2 nd edition (MABC-2) (15), which is a diagnostic measurement for DCD in childhood. The age band 1 of the MABC-2 test, which refers to children aged 3-6 years old, was used in our study. The test contains eight items categorized into the following three motor subtests (manual dexterity, aiming and catching, and balance). The scores of subtests are added up by their corresponding items. The total score of the MABC-2 is the sum of the standard scores for all eight items. The better a child's performance, the higher the test score. According to the previous research(14), MABC-2 is a valid and
motor milestones and motor impairments
in case the parents had queries. Parents of 10,452 children completed and returned the questionnaires concerning their child and family characteristics after giving consent to participate in the study. Each child's motor scores, responses to the child's parental questionnaire, and their base data during infancy were record-linked to conduct the analysis. Of the initial dataset, 8,395 children were included in the final analysis (Figure 1). Records were removed where there was missing infancy data or where an infant had not reported having crawled. The study was approved by the local Education Board and Ethics Committee of the Children's Hospital of Soochow University. Parental consent and children's assent were obtained before testing. All information acquired was kept confidential and was accessible only to the researchers.
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reliable measurement when it is used with Chinese children. However, because it is not generally recommended to make a diagnosis on children based only on a diagnostic test (16), we used the term 'motor impairment' instead of DCD. We grouped them (aged 3-6 years old) into significant motor impairment (≤ 5th percentile of the total score), at-risk of motor impairment (6-16 percentiles of the total or subtest score) and typical motor performance (>15 percentile of the total or subtests' score) according to MABC-2 Examiner's Manual(15). The procedure for conducting the MABC-2 has been described in previous studies(17,18).
2.2.2 Predictors
Crawling is defined as when a child alternatively moves forwards or backwards in a four-point position on hands and knees with the abdomen off the floor, with arms and legs moving reciprocally(19,20). Independent walking is defined as walking without assistance according to the World Health Organization (WHO) motor development study(19). We asked parents "how old was your child in months when she or he started to move forward or backward on BOTH hands and BOTH knees without the abdomen contacting the floor?" with regard to crawling; and "how old was your child in months when she or he started to walk independently" with regard to independent walking. We used the time difference between crawling and independent walking to describe the transition time from crawling to walking. In preterm children, we used a corrected month age of crawling and walking onset. Children who did not experience hands-and-knees
crawling, but presented bottom shuffling or bunny-hopping during infancy which might 172 be related to more complex mechanisms, were excluded from our study. 173
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2.2.3 Covariates
Body Mass Index(BMI) is an indicator of obesity that is based on height and weight (BMI = weight(kg)/height(m) according to the WHO BMI classification (21). Family structures were classified into three types: 'three-generation (or more) family', 'nuclear family', and 'single-family'. The 'three-generation (or more) family' type refers to a child living with his/her parents and grandparents, and is a traditional family structure in China. 'Nuclear family' refers to where a child lives with their parents, and "single mother or father" means the child lives with one of their parents. All covariates are shown in Table 1.
2.2.4 Statistical Analyses
Chi-square analyses were used to test for significance in comparing children's age, sex, BMI, parents' education, and family income between children with motor impairments and with typical motor performance. In order to assess the effects of crawling and walking onset, and the transition from crawling to walking on children's motor impairments (0=typical performance, 1=at-risk of motor impairment, 2=significant motor impairment), odds ratios were estimated to determine the strength of the association using a multilevel logistic regression model. In this model, we utilized a
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random intercept (we considered the kindergarten as a cluster, and hypothesized that there was no interaction between kindergartens and gross motor milestones) to investigate the associations between motor milestone and risk of motor impairment when adjusting for the clustering (kindergartens) and other potential confounders (child and family characteristics which are presented in Table 1). Additionally, we conducted a stratified analysis in children aged 3-4 and 5-6 years old. All analyses were performed in R 2.15.1 using the MGCV and LME4 packages. p <0.05 was considered statistically significant.
3 Results
Of the 8,395 children included in the final analysis, the mean month of crawling and independent walking onset was 8.1 months and 12.6 months, with a standard deviation (SD) of 1.8 months and 1.7 months respectively. The total score and motor subtest scores of the MABC-2, comparing children and family characteristics are shown in Table S1. The child and family characteristics by motor impairments were shown in Table 1 and Table S2.
The results showed that a one month delay in crawling onset increased the risk of overall significant motor impairment by 5.3% (as measured by the total MABC-2 score) and 4.7% for at-risk motor impairment when compared to typically developing children and adjusting for month age of independent walking and child and family characteristics (each p<0.05). There was also a statistically significant, 14.0% (significant group) and
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7.9% (at-risk group) increased risk of balance impairment (each p<0.05) when adjusting for the same characteristics. The crude and adjusted OR with 95%CI are presented in Table 2.
Compared with typically developing children, a one month delay in the onset of independent walking increased the risk of overall motor impairment by 21.7% for the significant motor impairment group; by 11.9% for the at-risk of motor impairment group; by 8.3% for significant fine motor impairment group; by 13.3% and 7.9% for the significant and at-risk of gross motor impairments when adjusting for month age of crawling and child and family characteristics (each p<0.05). A one month delay in the onset of independent walking increased the adjusted risk of balance impairment by 17.8% for the significant motor impairment group, and 9.3% for the at-risk of motor impairment group(each p<0.05). The crude and adjusted OR and 95% CI are shown in Table 2.
We found that a one month increase in transition time from crawling to independent walking increased the risk of overall significant motor impairments by 7.7% when compared with the typically developing group, and adjusting for child and family characteristics. An increase in timing difference between crawling and independent walking was significantly associated with subsequent significant impairment in the gross motor subtest when adjusting for child and family characteristics (OR=1.066, p<0.05). The crude and adjusted OR and 95%CI are shown in Table 2.
Stratified analysis showed that most of the significant associations of crawling and
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independent walking with later motor impairment remained in children aged 3-4 years old (each p<0.05, Figure 2), however, some of the associations between motor milestones and at-risk of motor impairment disappeared in children aged 5-6 years old (Figure 3). We found that the time difference between crawling and walking could predict significant overall motor impairment and gross motor impairment in children aged both 3-4 years old and 5-6 years old(each p<0.05), but could not be considered as predictors for the at-risk motor impairments(each p>0.05).
4 Discussion
To our knowledge, our study is the first population-based study that explored a longitudinal association between early motor milestones and the impairment of motor coordination revealed at a later age (3-6 years old), and our results confirmed that a delayed onset time of crawling and independent walking is associated with subsequent motor impairment. More importantly, our results also suggested that a long transition time from crawling to walking is associated with subsequent childhood motor impairments, with children with motor impairment having a longer transition time between crawling and independent walking when compared with typically developing children. Our study provided quantitative information to assist our early identification of children with motor impairments.
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Our results revealed a similar prevalence of children with significant motor impairments (5.2%-6.4%) to previous reports(16,22). More importantly, our results demonstrated a relatively consistent result that the late crawling onset time is associated with balance impairment at a later stage. As early as 6-8 months, the motor abilities of children with DCD can be observed to diverge from typically developing children by having a delayed crawling onset, which mostly reflects an impaired balance development at a later stage. Neurological evidence has shown that crawling experience is accompanied by neural changes, leading to a more efficient cortical organization(23), which, however, has been found altered in children with DCD(24,25,26). Crawling requires the coordination of a range of different muscles in the infant's trunk and lower extremities, and the interlimb coordination of overall balance is a key factor in an infant's transition from belly crawling to hands-and-knees crawling(27). The process of crawling provides novel eye-hand coordination, vestibular processing, tactile input, and kinesthetic awareness experiences, which are essential to the integration of sensory and motor systems and the improvement of balance(28). This is also in line with our results that a delayed crawling onset was only associated with impairment in balance but not fine or gross motor skills.
The timing of walking onset was a more powerful predictor compared to the crawling onset on motor impairments, and walking onset can predict children's later fine, gross, and balance motor impairments. Although each gross motor milestone in infancy has both similar and different components, independent walking is probably the synthesis
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of all these components(29,30). The coordination of muscles in the trunk and lower extremities, along with reciprocation between muscles and balance is needed to achieve walking(29,30). Although previous reports of the association between early gross motor milestones and later fine motor development are mixed(8,31), the theoretical background in occupational therapy suggests that a reduction in high level tactile, proprioceptive, and kinesthetic input affects the quality of upper extremity functioning(32,33). Therefore, as shown in this study, delayed onset of independent walking is also related to manual dexterity impairments in the group with significant motor impairment. These findings demonstrate a consistent pattern of delayed motor development in infancy is associated with later motor impairment and early motor milestone onset might assist the identification of DCD.
The most novel finding of our study was that one month increase in the transition time between crawling and walking can increase the risk of overall motor impairment. The inconsistent developmental pace has been found in other developmental disorders. For example, children with autism have been reported to have heterogeneous developmental pathways, with evidenced remarkable developmental change over time(34,35,36). Most infants with motor impairment seem to suffer a developmental delay in early motor skill achievement but can eventually catch up and reach the next motor milestone at a similar pace. It is possible that children with DCD crawl longer before starting to walk because they require more practice by crawling to be peripherally
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and biomechanically ready for independent walking. Slowed rate of growth may index aberrant processes during early development and precede the onset of symptoms. It should also be noticed that the delayed transition time between crawling and walking was only associated with significant motor impairment but not at risk of motor impairment, and its association with significant motor impairment seems to mainly reflect a subsequent impairment in gross motor skills. The results further suggested that the transition from crawling to walking is a complex process and compared to children with mildly delayed motor development, children with severe motor impairment or DCD may suffer from issues in more than the development rate of one group of motor capabilities; and different developmental patterns may exist between children with DCD and children with mildly delayed motor development. In this case, a developmental trajectory approach may be needed in future research to examine the differences in developmental patterns of children with DCD (i.e., more severe motor impairment) and children with mildly delayed motor development, as well as typically developed children(37). A focus on the developmental pattern can allow further factors to be studied beyond delay, which may ultimately index different underlying developmental pathways of DCD.
Additionally, we observed inconsistent results across different age bands in our stratified analysis. Most of the significant associations between motor milestones onset time and later motor impairment remained in younger children aged 3-4 years old, however, some of the associations disappeared in older children (aged 5-6 years old). It has been reported that early motor experiences can affect subsequent motor
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development(38). Previous studies have found environmental risk factors in kindergartens and families that were associated with childhood motor impairment(17,22). Therefore, the association between the onset time of motor milestones and motor impairment might also be related to the positive or negative impact of a child's environment. Further study is needed to explore the mechanism of age differences in the pattern of associations.
There were several limitations of the current study. First, we should consider the possibility that other conditions such as undiagnosed attention problems or other undiagnosed psychological or neuropsychological impairments may affect the children's performance in the MABC-2 test; and not all children with poor movement performance as defined by the MABC-2 test would be clinically diagnosed as DCD. However, the focus of the current study was the association of early motor milestones and subsequent motor impairments, and future studies should be conducted to further explore the potential different developmental trajectories between DCD and other neuropsychological disorders that often have motor impairment as a symptom. Secondly, we used the onset time of both crawling and walking reported by the parents as the indicator of the children's early motor development. It is possible that reports by parents are inaccurate. However, an important strength of the present study is that it was based on a larger sample than those previously described and that a wide range of confounding variables including child and family characteristics have been measured and controlled for in our analysis. A large population-based sample reduces the possible errors in
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parents' estimated reports regarding the children's motor development history and attenuates the variation of motor activity that might occur in infancy. Moreover, motor impairment is a minor condition compared to more severe conditions such as cerebral palsy or Down Syndrome. Most parents do not have knowledge of DCD(39) and children with DCD are rarely diagnosed(40) especially in China where the study was conducted. Therefore the parents of children with and without motor impairments as defined in the current study were unlikely to show differences in recalling the early developmental information of their children, and misclassification is unlikely to be differential. The nondifferential misclassification can produce biased estimates of odds ratios toward the null value(41), thus the positive outcomes of our study will still exist when considering the parents' reporting errors. Furthermore, the mechanisms underlying infant motor milestones remain poorly characterized according to current literature. The children who did not experience hands-and-knees crawling, but presented bottom shuffling or bunnyhopping during infancy, were excluded from our study as they may have had a confounding effect on our results. Further study is needed to explore the mechanism of these non-typical 'crawling behaviours'.
Our findings provided quantitative evidence of the association between early motor development and subsequent motor impairment. Although it is generally not recommended to make any official diagnosis of DCD before 5 years of age(16), it is critical to make early identification of children at higher risk of motor impairment. It is
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relatively straightforward for parents to notice and report crawling and independent walking onset by daily observation. The findings of the current study will increase our understanding of the early motor development of children with motor impairment, which in turn will have important implications for the early identification of children at higher risk of developing motor impairment in the first two years of development. The findings will also further our understanding of the mechanisms underlying motor impairments in children and thereby assist in planning early interventions to support children with motor impairment.
5 Conclusion
In conclusion, using a large population-based sample, we found that children's poor motor performance can be observed to diverge from typically developing children by having a delayed crawling onset. Moreover, a delayed walking onset is associated with subsequent motor impairments in all motor domains including fine motor skills. Our results suggested that the transition time from crawling to walking is also associated with later motor impairments, with children with impairments in motor coordination associated significantly with a longer crawling duration before walking compared to typically developing children. Our findings provide important evidence that will help inform practitioners in their early identification of children with motor impairments.
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Commission (PW2020D-11), Jiangsu young medical talent project (QNRC2016250), 410
Gusu medical talent project(GSWS2019026) 411
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Conflicts of interest statement: No conflicts declared. 413
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a
TABLE 1| The children's and family's characteristics (n =8395)
aPearson chi-square test
when you stand 20 feet away from the chart you can see what a "normal" human being can see at 20 feet).
bEye-sight refer to the children's visual acuity, which is tested by reading a Snellen eye chart at a distance of 20 feet (A normal eye-sight menas
cThe national average family per-capita income of the year before the survey time
*p<0.05, **p<0.01, ***p<0.001
dHaving one of the following maternal complications during pregnancy including vaginal bleeding during pregnancy, at risk of miscarriage, use of antibiotics, use of fertility drugs, intrauterine distress, fetal asphyxia
TABLE 2 | Effects of timing crawling and walking during infancy on motor impairments（n=8395）
Overall
Balance
aNot adjusted for other variables
e
d
* ***
f
d e
f
d e
f
*
***
e
***
bAdjusted for month age of independent walking onset
dAdjusted for month age of independent walking onset and children's and family's characteristics (all covariates in Table 1)
c Adjusted for month age of crawling onset
gAdjusted for month age of crawling onset children's and family's characteristics (children's age, sex, BMI, parents' education, and family income (all covariates in Table 1)
fAdjusted for children's and family's characteristics (children's age, sex, BMI, parents' education, and family income)
*p<0.05, **p<0.01, ***p<0.001
|
© 2021 The Authors
H2Open Journal Vol 4 No 1, 231 doi: 10.2166/h2oj.2021.100
'They will listen to women who speak but it ends there': examining empowerment in the context of water and sanitation interventions in Ghana
Florence Dery a,*, Elijah Bisunga, Sarah Dickin b and Jeremiah Atengdemc
a
School of Kinesiology and Health Studies, Queen
's University, SKHS Building 28 Division Street, Kingston, ON K7L 3N6, Canada
b
c IRC Ghana, P.O. BOX CT 9531 Cantonments, Accra, Ghana
Stockholm Environment Institute, Linnégatan 87D, 104 51 Stockholm, Sweden
Corresponding author. E-mail: firstname.lastname@example.org
*
FD,0000-0002-9167-2405; SD,0000-0003-0437-3755
ABSTRACT
Gender plays a vital role in shaping access to and governance of water, sanitation, and hygiene (WASH) services in many contexts. Notably, women and men have different WASH-associated roles as well as varying access to resources and power. This study explores the meanings of women's empowerment in the WASH sector from the perspective of local stakeholders in the Asutifi North District, Ghana. A qualitative approach was employed, which involved 15 key informant interviews with community leaders, local government professionals, and WASH practitioners. Participants conceptualized empowerment in terms of four major themes: (1) availability of resources, (2) WASH information, (3) social and cultural structures, and (4) agency. Participants defined empowerment as a multifaceted process shaped by their physical, social, cultural, and political environments. The study provides researchers and practitioners with a greater understanding of the dimensions of empowerment that are relevant to strengthening WASH interventions and practices.
Key words: empowerment, equality, gender, qualitative approach, water security
HIGHLIGHTS
* Empowerment is captured as a multifaceted process.
* Support from male partners in household chores appears to be a common practice in the study area.
* We emphasize the need to use more inclusive perspectives to address inequities at the household level.
* Support from male partners in WASH activities is critical to enhancing women's autonomy.
* The study suggests that multiple facilitators of empowerment exist.
GRAPHICAL ABSTRACT
INTRODUCTION
There has been a growing understanding of the role of gender in development in recent decades, with women's empowerment being recognized as critical for reducing gender disparities and related adverse outcomes across all sectors, including the water, sanitation, and hygiene (WASH) sector. Recognizing the importance of WASH for human well-being and gender equity, the recently adopted sustainable development goals (SDGs) target universal access to WASH for all by 2030. SDG 5 is geared toward achieving gender equality and target 5.4 seeks to 'recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate' (United Nation (UN) 2017). Without attention to gender inequalities and empowering women as outlined in SDG 5, the achievement of SDG 6, which focuses on universal access to clean water and sanitation, could be meaningless.
Women's empowerment is particularly crucial in WASH, as prevalent social norms assign the majority of water collection roles to women in many low- and middle-income countries (LMICs; Fisher et al. 2017). This results in women often bearing higher health and social costs associated with household water and sanitation insecurity, such as higher exposure to water-related disease, discriminatory taboos, and unrealized economic productivity (Gupta & Obani 2016).
While the provision of WASH facilities is essential for addressing access disparities, it does not address inequities in the control of water resources (i.e., sources of water that are useful to humans) and facilities. Thus, assessing WASH technical services and infrastructure is necessary when tracking WASH progress. Equally important are social and cultural factors, including social capital, social status, and socially constructed gender roles that affect women's engagement in community-level WASH programing. Including women in community WASH activities are vital as we strive toward achieving women's empowerment as a development goal (Akter & Ali 2014; Leahy et al. 2017; Dery et al. 2020). For instance, research in Uganda and Vanuatu show that the political participation of women in decision-making and water and sanitation committees is an essential determinant of water infrastructure sustainability (Foster 2013; Mommen et al. 2017).
The importance of gender empowerment for development has resulted in the creation of a range of tools and approaches to measure empowerment. For instance, several aggregate national indices and tools (e.g., Gender Empowerment Measure (GEM), Gender Inequality Index (GII), and Gender Development Index (GDI)), have been developed to capture changes in gender disparities at the national level. However, these indices are focused on national averages and cannot adequately capture the nuances of the concept of empowerment. This
potentially limits their ability to identify significant variations in people's lives to ensure no one is excluded from accessing WASH services.
Understanding empowerment in WASH
The meaning of empowerment within the WASH sector remains unclear (Dery et al. 2020), partly because of the various ways empowerment manifests itself (Kevany & Huisingh 2013; Schweitzer et al. 2014; Ewerling et al. 2017). Based on these challenges with the definition of empowerment, a contextual understanding of empowerment will better inform appropriate empowerment approaches or strategies that might work better in specific contexts. This is needed for the successful implementation of WASH programs and interventions that are aimed at empowering individuals and communities.
The Empowerment in WASH Index (EWI) (Dickin & Bisung 2019) was recently developed to guide WASH practitioners in measuring and monitoring gender outcomes, empowerment, and inclusivity in WASH-related interventions, particularly in LMICs. The EWI is also a diagnostic tool for identifying WASH constraints as well as an instrument for evaluating the effectiveness of WASH interventions. In developing the EWI, concept mapping with local stakeholders in Ghana, Burkina Faso and a scoping review was conducted to uncover critical indicators of empowerment across multiple levels (individual, household, and community). Twelve interrelated indicators were identified and used to develop the EWI: (1) input decisions about WASH roles and responsibilities; (2) households' input into decisions about WASH expenditures; (3) households' input into decisions about involvement in community WASH activities; (4) intrinsic agency in WASH; (5) control over assets; (6) work balance; (7) time allocation for water collection; (8) group membership; (9) leadership in WASH implementation; (10) leadership in WASH accountability; (11) sharing of WASH practices information; and (12) sharing of information about WASH rights and responsibilities.
Although standardized quantitative measures such as the EWI are crucial for straightforwardly identifying empowerment levels, the index, like all quantitative measures, cannot adequately capture the nuances of the concept of empowerment. To address this gap and complement the EWI, this paper draws on Kabeer's empowerment framework to examine local stakeholders' understandings and experiences of empowerment at the household and community levels within the Asutifi North District of Ghana.
Conceptual framework
Empowerment has been defined in different ways, but commonly draws on concepts of agency, choice, opportunities, resources, and power (Rowlands 1997; Sen 1999; Alsop et al. 2006; Ibrahim & Alkire 2007). This paper draws on Kabeer's definition of empowerment: 'processes by which those who have been denied the ability to make choices acquire such ability' (Kabeer 1999, p. 435, 2005, p.13). Kabeer further explored empowerment through three interconnected dimensions: resources, agency, and achievement (see Figure 1).
The framework depicts empowerment as a dynamic process in developing individuals' capacity to articulate preferences and make decisions to fulfill their potentials or acquire resources. In her view, resources include both material resources (e.g., earnings and assets), human resources (e.g., education, training and skill development programs, and self-efficacy), and social support (e.g., participation in community groups, peer networks, and
role models), which enhance an individual's ability to choose (Kabeer 1999, 2005). Thus, resources are the channels through which agency is exercised.
Agency indicates the ability to define and act on individual or shared goals, and to put them into effect (Kabeer 1999, 2005). The last dimension, achievement, represents the failure or realization of an individual's potential to live the life or achieve the well-being outcome they want (Kabeer 1999, 2005). The three dimensions interact across space and at multiple levels. In this study, we used the framework to analyze and understand factors that matter for (dis)empowerment at various levels (individual, household, and community). Thus, the framework served as a guide in developing the interview guide, data analysis, and interpretation of findings.
METHOD
A qualitative design was used for this study. Qualitative research is often used to explore and understand the meaning of complex issues (Creswell 2013). Qualitative techniques also help to understand the human realities of a situation within a given context (Green & Thorogood 2013). The strength of qualitative research is that it provides narrative information about different issues (e.g., human perception, beliefs, and social norms) and offers an opportunity for the participants to describe the situation in their own words (Creswell 2013). This design was suitable for the study because it provides a rich account of how people interpret their personal experiences, construct their worlds, and attribute meaning to their experiences (Neergaard et al. 2009).
Study context
The study was conducted in the Asutifi North District in the Brong Ahafo Region, Ghana. The Brong Ahafo Region has since been divided into three regions (Bono, Brong Ahafo, and Ahafo) after this work was completed. The district's population, according to the Ghana Statistical Service (Asutifi North District report), is 62,816 people, with most (68%) people residing in rural areas (Asutifi North District Assembly 2018). Large-scale mining in the district has led to a growing service sector, though subsistence agriculture remains dominant (Asutifi North District Assembly 2018).
Overall, about 15% of the district population lack access to basic water services (Asutifi North District Assembly 2018). Access to basic water is defined as an improved source with a collection time of not more than 30 min for a round trip (WHO 2017). However, households without access to basic drinking water use water from a variety of unreliable sources including rivers, streams, unprotected wells and springs, dugouts, or tanker services (Ghana Statistical Service 2014). Furthermore, whereas 42% of rural residents have access to improved communal water facilities, only 61% of them are able to make a return trip of water collection within 30 min (Asutifi North District Assembly 2018). Rural households (50.5%) primarily use shared public toilet facilities in the district. However, about 60% of public facilities in the district do not meet the threshold of basic sanitation (Asutifi North District Assembly 2018). Five percent of the population practices open defecation in bushes and fields (Ghana Statistical Service 2014).
In response to the WASH inadequacies faced by the Asutifi North District, a WASH master plan has been developed that sets out key targets and strategies to ensure every household gets access to safe water and sanitation by 2030 (Asutifi North District Assembly 2018). The local government, non-governmental organizations (NGOs), and local authorities support the master plan. The study context is therefore well suited for this study because it is a pilot district for interventions aimed at achieving universal access to water and sanitation by 2030.
Participants and recruitment
Data were collected through interviews with local stakeholders. For this study, we considered local stakeholders as key informants based on their expertise and experiences in WASH-related activities such as community mobilization and involvement in local governance. The final key informants included leaders of local women's groups (2), persons with disability groups (3), youth group leader (1), member of a community resettlement committee (1), community health service (1), local government agencies (3), and local authorities (4). The approximate number of participants for the key informant interview was initially targeted at 12. However, data saturation was reached after interviewing 15 participants (Creswell 2013). Convenience sampling was used to recruit the participants for the interview. This sampling technique helped to derive a sample of individuals who were willing and able to share their experiences with the phenomenon of interest (Creswell 2013). The open-ended nature of the questions gave room for participants to introduce their own lines of arguments and elaborate or emphasize issues they value.
Before recruitment, invitation letters were sent to the Asutifi North District Assembly. The district assembly circulated the study information to groups and partner authorities who work within the WASH sector. Those willing to participate contacted the assembly. The district assembly then shared the contact details of potential participants with the research team, thus providing access to the participants. Initial face-to-face contact was made with the participants separately in an introductory meeting. Participants were selected purposefully based on inclusion criteria, area of expertise, and geographical location to ensure that diverse perspectives and opinions were considered. Individual interviews were then scheduled and conducted at a place and time that was mutually convenient.
Data collection
One-on-one interviews were conducted with participants in either English or Twi using an interview guide. The interview guide was developed to collect information concerning norms and practices around household chores, including WASH-related tasks (e.g., water collection), leadership and decision-making responsibilities, and challenges in accessing water and sanitation services. One participant who was proficient in English and Twi decided to respond in both languages. Eight participants responded in Twi, and six responded in English. The study drew upon Kabeer's (1999) definition of empowerment to ask open-ended questions. Particularly, questions were focused on access to water and sanitation, access to education or training and capacity building opportunities, and engagement with community groups. We further asked about women's level of influence and participation in decisions at the household and community levels, as well as women's ability to speak freely in public. For example, respondents were asked to describe people in their community who can make essential decisions in their lives and put those decisions into action. This allowed the participants to freely and openly elaborate on the most critical aspects of their experiences. Follow-up questions were asked if necessary. Interviews were conducted at various locations, including participants' workplaces (9), public places (4), and homes (2). Interviews were audio-recorded with permission from participants and lasted between 45 and 60 min. Fieldnotes were also taken through observation, especially regarding access to WASH facilities, good sanitation practices, and body language of the respondents. The recordings were supplemented with notes taken about participants' body language, any distractions during the interviews, and reflections on how the settings and external interactions influenced the discussions. Data were collected between April 2019 and May 2019. Verbal consent was taken from all the research participants. To protect the identities and confidentiality of the participants, personal identifiers were not used in the analysis and presentation of data. The ethics committee provided informed consent, and the study protocol was approved (Queen's University's Health Sciences and Affiliated Teaching Hospitals Research Ethics Board, Ontario, Canada, protocol No. 6023634, May 18, 2018).
Data management, analysis, and rigor
The audio recordings were simultaneously translated and transcribed. The field notes were added to the transcripts to provide contextual details noted during the interview. A graduate student with proficiency in both English and Twi was contracted to compare each interview transcript to the corresponding audio file. Another graduate student randomly selected the translated transcripts and compared them with their relevant audio recordings. These steps were taken to ensure that meanings of keywords and constructs were maintained during the translation process. The completed transcripts were then imported into NVivo™ 12 software for coding and analysis.
With guidance from the empowerment framework, data were inductively analyzed using thematic analysis (Braun & Clarke 2006). First, the data were systematically coded by summarizing the primary topic of relevant text in a word or short phrase. For example, we used words such as 'participation' and 'decision-making' to serve as topics. These words conveyed the meaning of the relevant text or sentences. Second, emergent subthemes were identified in each passage and subsequently grouped under broader themes. For example, subthemes such as 'the presence of WASH facilities/resources' and 'financial resources' were captured under a broader theme, 'availability of resources'. Subthemes were reviewed by two researchers independently to ensure concepts that related to the same phenomenon were coded under the same category. Finally, themes were subsequently defined based on a general understanding of ideas in the existing literature.
RESULTS
Participants came from Kenyasi, Ntotroso, Gambia, Obengkrom, and Dadiesoaba and included adult males (7) and females (8). Pseudonyms are used in reporting the findings to ensure anonymity.
Understanding/conceptualizing empowerment
Though it was a challenge to translate 'empowerment' appropriately into Twi, most of the participants were familiar with the term partly because they had attended training programs or workshops often led by NGOs. Local understandings of empowerment were substantially alike but differed slightly among the few stakeholders. According to one participant, 'empowered persons speak confidently in public and go about their daily activities independently' (Dikpe, male). According to another participant, 'an empowered woman is one whose inputs during community fora are valued without channeling them through her partner' (Ama, female).
Four significant themes emerged from the inductive analysis: (1) availability of resources; (2) WASH information; (3) social and cultural factors, and (4) agency. Supportive quotations from the participants to illustrate these themes and their related subthemes are described in the subsequent sections (see Table 1).
Availability of resources
The availability of resources generally refers to the volume and types of WASH services accessed when needed. Most participants felt that people with resources were more empowered than those without resources. Resources here are captured as the presence of WASH facilities/services and financial resources.
Presence of WASH facilities/services. Concerning the availability of WASH facilities, individuals with access to WASH facilities at home received greater respect and status than those without such facilities. According to a key informant:
'You are not respected in this community if you are not able to build a toilet facility for your family. People with WC are even more respected than others.' (Owusu, male)
Another key informant highlighted that despite the presence of government water supply agencies, the rich and educated people are perceived to be able to connect pipes in their homes compared to the poor. These persons are considered empowered and seen as role models. The participant stated:
'We have community town water systems in this community, but only the educated and "well to do" people are able to connect water into their home. My family and I are saving money towards getting water connected to the house so that we can also enjoy good water like what they [rich and educated persons] are enjoying.' (Ada, female)
Furthermore, some participants complained about how the inadequacy of WASH facilities affects the exercise of good hygiene practices: According to one of the key informants:
'mmm-hmm, once these [WASH facilities] are not in place, it is difficult for one to engage in good hygiene practices. For instance, living in a house without a toilet promotes open defecation. How can one, therefore, stop to defecate openly when he has no alternative? So, people are willing, but there are no logistics or adequate WASH facilities to promote good WASH practices.' (Klenam, male)
Financial resources. The irregular water supply and the cost of accessing safe water discourage individuals from engaging in good WASH practices. The participants recounted how challenging it is to pay for water in the community. As noted by one of the key informants:
Table 1 | Themes and number of mentions
'Where I live, the piped water does not flow regularly, and so sometimes we buy the water for 30 pesewas per yellow gallon [20-liter container] from a privately-owned borehole. Most of us are unable to afford this all the time. It is difficult to get water if you don't have money to buy water from the borehole. For me, sometimes I fetch the water with permission to pay later, but not everyone is given such an opportunity.' (Dikpe, male)
Another participant also highlighted how structural factors such as unemployment disempower many residents:
'The hardship in this community is too much. One is aware of the good WASH practices but cannot afford the basic materials like soap to help him practice good hygiene like the rich people in the community. We do not even have money to buy food, how much more soap. If the unemployment situation is solved, then it will help us engage in better hygiene practices.' (Owusu, male)
WASH information
WASH information relates to the provision of the appropriate education individuals need to improve WASHrelated behavior. Subthemes captured include WASH knowledge and capacity building.
WASH knowledge. WASH knowledge mainly refers to the awareness of good WASH practices and waterhealth linkages. Equipping individuals with WASH knowledge might enable them to articulate their WASH needs and contribute to decision-making at the household as well as community levels. According to a key informant:
'I personally share learnings on WASH with members of the association I belong to. I was selected to take up the role because of my educational status. I represent the association during workshops where I present our challenges and water needs to the authorities. My neighbours also come to me to teach them appropriate water treatment methods.' (Shine, female)
According to another key informant, WASH information should be shared through a medium that could be understood by all. This act could be done using a variety of communication tools that everyone, especially disabled groups in the community (e.g., persons with hearing impairment) would understand and benefit. The key informant said:
'It [following WASH education programs] is difficult to understand what is being discussed. We [persons with hearing impairment] sometimes feel very disappointed, and it hurts us so much. Sometimes we leave the place. During some of these meetings, there is an interpreter who translates whatever goes on. We understand and put the information to use to improve our lives. But in situations where education is going on without an interpreter, we try to read the lips of the speakers and gestures to be able to follow what is going on, but it is difficult.' (Kofi, male)
Capacity building. Emphasis was placed on improving WASH knowledge through training programs. Some participants indicated that receiving training in good WASH practices empowers them:
'I am part of a group called the compassion group, and we educate people on hygiene so that they can improve their lives. This group is made up of men and women, and we are trained during meetings to have knowledge relating to good WASH practices.' (Elorm, female)
According to one of the key informants, persons living with a disability are empowered through training and capacity building given to them. This has made them more confident in articulating their WASH needs, especially at the community level. As noted by the key informant:
'Initially, women were shy, but due to training and empowerment that we received from the leaders of the Federation [association for persons with a disability], we have built the confidence to speak up in public. During
such empowerment training, they teach us the persons with disabilities how to go about our daily activities without depending on anyone, and this has been helpful. We are now being recognized in the communities because of the efforts we are putting in our daily work. We are invited to partake in stakeholders' meetings and other activities in the community.' (Dikpe, male)
Social and cultural structures
Social and cultural structures relate to the attitudes and beliefs that shape or enhance individuals' ability to define goals and work toward achieving them. There were four subthemes, leadership, social norms, and social support.
Leadership. Based on societal gender norms and expectations, some women suspend participating in community activities to focus on household or domestic chores. Irrespective of the good intentions or otherwise of these gender norms, they can undermine individual active involvement in water-related collective action. Individuals, particularly women who go against such societal norms or expectations, are seen as powerful. According to one of the women participants, she was nicknamed 'Yaa Asantewaa' (a brave and fearless woman) because of her active participation in community meetings:
'As for me, I speak when there is a need. Until I finished with what I want to say, I am not intimidated by some of the male colleagues who usually want to shut me up. As a result of my confidence and boldness, they gave me several nicknames, including "Yaa Asantewaa".' (Aviela, female)
Furthermore, all participants thought that women would be more empowered if they have 'power over' WASH issues in the community. It is considered a great achievement when women are given a chance to take supervisory or leadership roles:
'It [creating opportunities for women to gain leadership roles]) will be very helpful because women play a major role in sanitation and water issues at home. Women need and use WASH services more for household chores such as cleaning, washing, cooking, sweeping. So, when they play a major role in the WASH committee, it will be helpful because they need WASH services more than men and so they will manage the committee better if they are more on the committee.' (Elikem, male)
Socio-cultural norms. Some participants indicated that having men carry out duties meant for women was embarrassing and against social norms and tradition. Domestic chores, including sweeping, water collection and cleaning, were considered inappropriate for men and not traditionally accepted. Men who engage in these activities were considered disempowered. According to a key informant:
'Mostly, women are responsible for cleaning the house. Our culture too does not support men sweeping or cleaning, so if I see a man holding a broom to sweep, I feel ashamed of myself, and I quickly sweep the place for him.' (Aviela, female)
Another participant added that men who engaged in domestic WASH activities do not only go against traditional norms but also undermine their masculinity. According to the participant:
'Tradition demands that women are solely responsible for WASH activities. Even if a man is living alone, he finds a woman to come and clean his bathroom for him. Any man who is seen doing such chores is not considered a man by his peers.' (Owusu, male)
Creating social environments that promote men's involvement in domestic WASH activities will help promote gender equity. Some key informants, however, indicated that this might threaten socio-cultural norms. As stated by a participant:
'Some men help their wives. For instance, my husband sometimes fetches water from a nearby village when we are faced with a severe water shortage. However, some women would want to make it a permanent role for their husbands if the men try to assist with fetching water at one point. But this is wrong. It should not be so. Men are, therefore, trying not to help to avoid being taken advantage of by their spouses.' (Elorm, female)
Social support. Some participants mentioned that having support from other members of the household and community in WASH activities is considered empowering. For example, in a context dominated by gender inequalities, support from male partners in WASH activities is critical to enhancing women's autonomy and extending their use of WASH facilities. According to a participant:
'Some men support. For instance, I have a partner, but I wash my clothes. I sometimes fetch water. Not all men do that. However, looking at how women are overburdened with household chores, we need to support and empower them.' (Elikem, male)
Another woman mentioned that women's mutual support, especially WASH planning and governance, could be necessary for women's empowerment. She stressed the importance of supporting the collective voice of women at public events, where decisions regarding WASH are deliberated. According to the participant:
'Most women are afraid to speak in public, but they are suffering. The woman who however talks seems not to get other women to speak in support of her. When this happens, it may seem like it is an individual problem or concern.' (Ama, female)
Agency
Agency mostly refers to the ability of a person to define goals and put them into effect (Kabeer 1999, 2005). Subthemes captured under agency include participation and decision-making.
Participation. Some respondents mentioned that women are mostly present at gatherings; however, they cannot engage in active discussions. Participation requires an enabling environment that recognizes the capacity of both men and women to work together:
'We are burdened, but most women are afraid to speak up. It is a massive problem because water is a big challenge to us women in this community. As for me, I can talk confidently anywhere, but others do not. Sometimes when we meet with the men to discuss issues, the men shut us up.' (Aviela, female)
Another woman added that women's voices should be amplified to enable them to participate in WASH deliberations without barriers. This could help promote inclusivity in WASH planning and governance. According to her:
'The women are not speaking up in public, especially in the situation where they have their husbands or in-laws as part of the gathering; they tend to be quiet except a few of them. I think some of the men are intimidating. If you want to speak, they want to intimidate you.' (Ama, female)
Some participants felt that women lack adequate time to participate in community activities, as they receive little or no support in carrying out household chores. As highlighted by a participant:
'The committees that have been inaugurated; the majority of the members are men. It is because women are not coming out. It is a voluntary job, and I think men are more willing to take it up than the women. The women are involved in so much household chores that they have little time for other activities.' (Anamaala, female)
Decision-making. Some participants highlighted that women are overburdened with household chores, which affect their participation in community decision-making processes:
'Mmm-hmm, if it comes to the usage of water and sanitation, women use it more, but when it comes to decision making, the men take the lead in that. For instance, every water source point in most parts of the district is managed by the water and sanitation committees, but the committees that have been inaugurated; the majority of the members are men.' (Anamaala, female)
A woman participant who sometimes finds herself in the WASH committees recounted that her suggestions are sometimes not considered at the end of the day:
'They will listen to women who speak, but it ends there. Mostly, they do not work with what was voiced out. But we will continue to talk about water issues and how the inadequate supply affects us.' (Shine, female)
Furthermore, other women who are very outspoken have recounted being excluded from community water board meetings. As intimated by a key informant:
'I am one of the board members. Because of the critical issues around accountability that I am fond of raising, the former board members mostly held meetings without involving me.' (Aviela, female)
The exclusion of women from meetings limits their likelihood of taking up leadership roles in the community.
DISCUSSION
We conducted this study to explore how individuals understand and experience empowerment within the WASH sector in Ghana. This study provides insights into the perspectives of community stakeholders on empowerment. These perspectives include factors that facilitate (dis)empowerment, including socio-cultural structures, resources, agency, and WASH information. Similar considerations have been identified as barriers to empowerment in previous studies (Boateng et al. 2013; Leder et al. 2017; Routray et al. 2017). For example, a study conducted in rural India by Routray et al. (2017) revealed that cultural norms limit female's active involvement in decision-making processes regarding sanitation. A study by Agarwal (Agarwal 2007) in India also revealed that women's active participation in decision-making were impeded by social and cultural norms, even when they were motivated to act. In instances where women are included in decision-making bodies, their participation in some cases are mostly tokenistic (O'Reilly 2004).
The results of the study suggest that multiple facilitators of empowerment exist. These include support from other members of the household, mutual support from peers, as well as opportunities for women to gain leadership roles in WASH planning and governance. Spouses were identified as relevant sources of support, especially for the collection of water and cooking. Support from male partners appears to be a common practice in the district. This is partly because some people believe that husbands were expected to help with household chores. This finding supports a study by Eger et al. (2018), which argues that empowerment acquires its value and meaning from relational acts. With male counterparts helping with chores, women can accomplish what they previously could not. Thus, women's experience of empowerment increases as their responsibilities (e.g., water collection and childcare) decrease, allowing them extra time to engage in other activities, including economic and community social activities.
On the contrary, other studies found men's engagement in WASH activities only when female partners were sick. For example, a study conducted in Mozambique by Van Houweling (2015) found that men collected water when their wives were ill, as well as during periods of severe water scarcity. Also, another study was conducted in India by Luke et al. (2014) showed that men assisted with domestic chores such as cooking and childcare only when wives were ill or expected to arrive home late from work.
Creating opportunities for women to gain leadership roles in WASH planning and governance is essential because women leaders could inspire their colleagues to take up similar roles. This study reveals that women in WASH-related leadership positions are considered authoritative and can bring the voices of other women to the policy arena. However, women were underrepresented within top decision-making bodies in the communities (e.g., WASH committee), and their suggestions are mostly ignored during meetings. While gender parity in leadership has not been achieved in many fields (e.g., law, science, education, technology, and political space), the gender gap in the WASH sector is particularly problematic because women are less involved in WASH
decision-making. Including more women in decision-making processes would help ensure inclusive WASH service delivery to promote the global goals of achieving gender equity (Dhatt et al. 2017).
Most WASH initiatives, such as community mobilization to enhance water access, do not often consider contextual factors (e.g., cultural norms) that shape women's empowerment (Peal et al. 2010; Mosler 2012). We recommend that policymakers and WASH practitioners focus more on creating favorable platforms for women to make decisions in a socially and culturally appropriate manner. Furthermore, community WASH committees need to look beyond merely including women to providing them with genuine opportunities to participate in decision-making fully as well as opportunities for leadership at all levels. Addressing disempowerment at the community level (e.g., providing community leadership) does not necessarily shift the gendered expectation of women's primary role at the household level. In a context where women are mainly overburdened with domestic chores, there is no time for meaningful participation in economic activities or WASH activities at the community level, even when the opportunities are presented. Interestingly, the findings from this study reveal that some men deviated from the cultural norms of gender roles and engaged in household tasks as a way of supporting women to have some time to engage in economic activities and communal activities.
The study emphasizes the need for WASH programs to pay attention to the prevailing societal and community factors that influence women's participation in collective action. For example, social support and social norms that create opportunities for women to gain leadership roles in WASH planning and governance could be identified and promoted during the implementation of the WASH program by local government authorities.
Though the application of empowerment frameworks in WASH-related research has been limited, Kabeer's framework provides researchers with a unique conceptual tool for understanding factors that influence (dis) empowerment. It directs attention to the interplay between resource, agency, and achievement. For example, the realization of empowerment is grounded in the availability of resources as well as socio-cultural practices. The most critical aspect is for researchers and practitioners to disentangle how the three dimensions of the framework interact within households and communities to enhance empowerment. Further research could study the relationships and interactions between the aspects of empowerment and specific WASH outcomes using sex-disaggregated data further to expand the literature on empowerment in the WASH sector. This information could provide a further understanding of the contributions the WASH sector makes toward improving health and well-being in general.
LIMITATIONS
There are some limitations to this study worth acknowledging. First, there is the possibility of selection bias, as our sample was limited to participants from organizations and community groups within the study district. Second, we recognize the potential of lost meaning in the translation process of the interviews. However, the following steps were applied to ensure rigor. First, all interviews and discussions were recorded verbatim and transcribed. Second, all the audiotapes were cross-checked with the transcripts before analysis to correct any errors and fill any gaps. Third, a graduate research assistant with proficiency in both English and Twi randomly selected the translated transcripts and compared them with the relevant audio recordings. Lastly, adequate accounts of behaviors and activities during interviews were noted to aid in the analysis. The study did not also examine the difference in experiences of participants based on the organization. This might have helped provide in-depth knowledge on how individuals within similar groups perceive or experience empowerment.
CONCLUSION
This study provides evidence that can inform policy development and practice. More specifically, the results could inform the development of policies to enhance the participation of women and men in WASH decisionmaking and subsequent implementation. Doing this would help achieve universal access to WASH and achieve gender equality and empowerment for all. The importance of gender equality and empowerment has received attention from (WASH) sector over the years; however, significant gaps in understanding facilitators and barriers to women's empowerment remain. This is partly due to limited sex-disaggregated data and the limited application of theoretically informed empowerment frameworks and approaches (Grant 2017). This study's findings allow researchers and practitioners to analyze and understand factors that matter for (dis)empowerment in WASH. This would enable the development of appropriate interventions and programs for achieving SDGs 5 and 6.
ACKNOWLEDGEMENTS
This work was supported by an accelerated grant provided by the REACH program. REACH is funded by UK Aid from the UK Department for International Development (DFID) for the benefit of developing countries (Aries Code 201880). However, the views expressed and information contained in it are not necessarily those of or endorsed by DFID, which can accept no responsibility for such views or information, or any reliance placed on them.
DECLARATION OF INTEREST
Florence Dery, Elijah Bisung, Sarah Dickin, and Jeremiah Atengdem received a research grant provided by the REACH program. REACH is funded by UK Aid from the UK Department for International Development (DFID) for the benefit of developing countries.
DATA AVAILABILITY STATEMENT
All relevant data are included in the paper or its Supplementary Information.
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First received 14 May 2021; accepted in revised form 31 August 2021. Available online 20 September 2021
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ISSN 1424-8220
sensors www.mdpi.com/journal/sensors
Review
Retrieving Leaf Area Index (LAI) Using Remote Sensing: Theories, Methods and Sensors
Guang Zheng and L. Monika Moskal *
Remote Sensing and Geospatial Analysis Laboratory and Precision Forestry Cooperative, College of Forest Resources, University of Washington, Box 352100, Seattle, Washington, USA 98195-2100; E-Mail: firstname.lastname@example.org (G.Z.)
* Author to whom correspondence should be addressed; E-Mail: email@example.com;
Tel.: +1-206-221 6391; Fax: +1-206-685-3091
Received: 25 November 2008; in revised form: 3 April 2009 / Accepted: 17 April 2009 /
Published: 17 April 2009
Abstract: The ability to accurately and rapidly acquire leaf area index (LAI) is an indispensable component of process-based ecological research facilitating the understanding of gas-vegetation exchange phenomenon at an array of spatial scales from the leaf to the landscape. However, LAI is difficult to directly acquire for large spatial extents due to its time consuming and work intensive nature. Such efforts have been significantly improved by the emergence of optical and active remote sensing techniques. This paper reviews the definitions and theories of LAI measurement with respect to direct and indirect methods. Then, the methodologies for LAI retrieval with regard to the characteristics of a range of remotely sensed datasets are discussed. Remote sensing indirect methods are subdivided into two categories of passive and active remote sensing, which are further categorized as terrestrial, aerial and satellite-born platforms. Due to a wide variety in spatial resolution of remotely sensed data and the requirements of ecological modeling, the scaling issue of LAI is discussed and special consideration is given to extrapolation of measurement to landscape and regional levels.
Keywords: Leaf area index (LAI); remote sensing; light detection and ranging (LiDAR); gap fraction; gap size, terrestrial LiDAR.
1. Introduction
An important vegetation biophysical parameter, the leaf area index (LAI), is a dimensionless variable and a ratio of leaf area to per unit ground surface area. This ratio can be related to gasvegetation exchange processes such as photosynthesis [1], evaporation and transpiration [2-4], rainfall interception [5], and carbon flux [6-8]. Long-term monitoring of LAI can provide an understanding of dynamic changes in productivity and climate impacts on forest ecosystems. Furthermore, LAI can serve as an indicator of stress in forests, thus, it can be used to examine relationships between environmental stress factors and forest insect damage [9]. Emerging remote sensing platforms and techniques can complement existing ground-based measurement of LAI. Spatially explicit measurements of LAI extracted from remotely sensed data are an indispensible component necessary for modeling and simulation of ecological variables and processes [10,11]. Since LAI remains consistent while the spatial resolution changes, estimating LAI from remote sensing allows for a meaningful biophysical parameter, and a convenient and ecologically-relevant variable for multi-scale multi-temporal research that ranges from leaf, to landscape, to regional scales [12].
The physiological and structural characteristics of leaves determine their typically low visible light reflectance except in green light. Past the visible, high near-infrared reflectance of vegetation allows optical remote sensing to capture detailed information about the live, photosynthetically active forest canopy structure, and thus begin to understand the mass exchange between the atmosphere and the forest ecosystem. Algorithms and models used as an input parameter to predict or estimate ecological variables have been developed using remotely sensed datasets based LAI [13-16]. For example, LAI obtained from optical remotely sensed data serves as a key parameter to estimate aboveground biomass of forest stands [17]. Due to recent availability, fine resolution spatial and spectral (hyperspectral) remotely sensed data are being used to retrieve LAI and other biochemical contents such as chlorophyll in leaves of forests [18-20]. Also in recent years, due to the emergence of light detection and ranging (LiDAR) techniques and equipment, numerous methodologies are being developed for point cloud datasets obtained from LiDAR to assess vegetation and forest three-dimensional structures [21-26]. The explicit three-dimensional information contained in LiDAR point clouds offers the ability to investigate forest health [27,28], forest stand structure and biophysical parameters [29-33]. Particularly, terrestrial LiDAR, with very high density point clouds, allows for improved retrieval of forest stand structure information including LAI [34,35]. Meanwhile, factors influencing the accuracy of leaf area density estimation have been investigated [31,36] including attention to leaf-on and leafoff conditions [37, 38]. LiDAR has been used to monitor forest stands and environmental changes through the use of LAI as a key indicator parameter [39]. Currentely, due to single spectral band information deficiency, LiDAR has been combined with other hyperspectral remotely sensed datasets to obtain more comprehensive information about biophysical characteristics of forest ecosystems [40]. In recent years, a theory based on the spectral invariant property of leaves[41] has been applied to retrieve LAI and physical canopy height from optical sensors including single- [42,43] and multipleangles [44]. The radiation budget theory characterizes the structural and spectral contribution in simulating the bidirectional reflectance factor in an efficient way and introduces new principles of photon-vegetation reflectance interaction, whereby one can characterize gap probability and gap fraction in terms of photon recollection probability and escape probability.
During past decades, efforts focused on LAI measurement strategy and theory, not only with ground-based field measurements, but also the retrieval of LAI based on array of remote sensors. In summary, there are two broad types of methods for estimation of LAI, either employing the "direct" measures involving destructive sampling, litter fall collection, or point quadrat sampling "indirect" methods involving optical instruments and radiative transfer models. The dynamic, rapid and large spatial coverage advantages of remote sensing techniques, which overcome the labor-intensive and time-consuming defect of direct ground-based filed measurement, allow remotely sensed imagery to successfully estimate biophysical and structural information of forest ecosystems.
A range of LAI definitions exist in the research literature, which complicates the comparison between works, and thus, the first focus of this paper is a compilation of LAI definitions. The second focus of the paper is the explanation of the gap fraction method theory. Thirdly, LAI estimation methods and sensors are discussed. Finally, remotely sensed LAI estimation and scaling issues associated with it are discussed.
2. Theory
In the early period of LAI research, due to the complicated distribution of foliage elements within the canopy, a modified Beer's law light extinction model was developed. The model estimates LAI by mathematically analyzing light intercepting effect of leaves with different angular distribution based on a very common simplified assumption that all of foliage element and live parts within canopy are randomly distributed. The point quadrat method [45,46] was an early method used to mathematically analyze the relationship between projection area and foliage elements with all possible angular and azimuthal distributions. In this model, the extinction coefficient served as an important parameter to characterize the effect of leaves' angular and spatial distributions on radiation interception. An algorithm was developed [47] to calculate extinction coefficients based on the assumption that the angular distribution of leaf area in a canopy is similar to the distribution of area on the surface of prolate and oblate spheroids. Because of the assumption of randomly located foliage elements within canopy, the LAI obtained from gap fraction [48] theory was not the true LAI, thus, a term called effective LAI was created to more accurately describe the result. However, gap fraction theory only applies to the percentage or proportion of gaps accounting for the whole hemispherical bottom-up view of a canopy. Gap size (dimensional information) is another very useful information to characterize clumping and overlapping effect, therefore, the gap size theory is a another stage for LAI ground-based filed indirect measurement development.
Recently LAI research focus has shifted from an empirical and statistical stage to process-based modeling stage due to the involvement of remotely sensed datasets and numerical ecological model implementation. The canopy structure in this paper is defined as the amount and spatial organization of aboveground plant materials including leaves, stems, branches, flowers and fruit, which affects the environmental factors such as air temperature, leaf temperature, atmospheric moisture, soil evaporation below the canopy, soil heat storage, leaf wetness duration and others [48]. The physical dimension (size, shape), relative position, spatial arrangements between different canopy elements determine the amount and spatial distribution of fraction of photosynthetic radiation (fPAR) within and below the canopy, which control the absorption, reflectance, transmission, and scattering of solar radiation. A single live leaf reflects green light and near-infrared light due to its internal structure. When scalling to the individual tree or forest stand level, non-random distribution and multi-layer structure of canopy elements result in multiple scattering of radiation between the different layers of foliage elements and other parts of canopy. This results in the obvious difference in reflectance for the individual leaf, tree canopy and a stand at landscape level. The denser a canopy, the more absorption and reflectance of solar radiation occurs and less energy is transmitted to the ground surface below. In addition, the difference of reflectance properties at various scales is dependent on the field of view (FOV) and spatial resolution for various sensors. The shadows between tree canopy and hot spot result from the relative position of sensor and sun (the hotspot is a phenomenon that occurs when the sensor sees only sunlit elements). Geometrical optical (GO) models such as bidirectional radiative directional function (BRDF) [49] and 5-SCALE radiative transfer model (RTM) [50] were developed to simulate the reflectance properties at different scales. Clearly, vertical and horizontal canopy structures are becoming an indispensible input parameter for modeling ecological process such as photosynthesis, evaporation, transpiration and carbon sequestration of forest ecosystems. In terms of the economic value of a tree, the tree bole is linked to tree stem volume, timber production, and the characterization of forest inventory. From the ecological perspective, foliage is applied in modeling biological processes at leaf-level and the foliage distribution is a key factor affecting competition for resources, such as light, nutrients and moisture of intra- and interspecies of forest community stand. The most important canopy attributes affecting solar radiation penetration through canopy and indirect LAI measurements are leaf angular distribution and leaf spatial distribution. On one hand, leaf angular distribution affects radiation transmission through canopy at different angles; on the other hand, leaf spatial distribution affects the amount of radiation transmitted through the canopy.
2.1. Definitions
During past decades, definitions of LAI have been provided by scientists from many disciplines for a range of purposes, such as determination of forest community succession, simulation of potential biological activities, and solar radiation regimes within plant canopies. The definition of LAI are summarized and compared in Table 1. A common and acceptable definition of LAI needs to be addressed to make research results comparable.
As shown in Table 1, total leaf area index (ToLAI) was first defined as the total one-sided area of photosynthetic tissue per unit ground surface area [51,52]. This definition is especially applicable to flat broad leaf condition with same area on both sides of leaf. In reality, the shape of leaves is not always of this type [53], some leaves such as white spruce (Picea glauca) are needle-shaped and arrangement is spiraled. Each needle has an approximate cylindrical shape which this definition cannot describe accurately, thus, projected area of leaves has been provided [54]. Projected LAI (PLAI) is defined as the horizontal area that is cast beneath a horizontal leaf from a light at infinite distance above it. The cumulative LAI (unitless) of a canopy by calculating the sum of vertical projection of foliage area on a horizontal plane from ground (z = 0) to top of canopy (z = h) [55]. LAI depends on the average surface density coefficient of the foliage (u) expressed in m 2 /m 2 :
The concept of silhouette leaf area index (SLAI) was introduced and defined as the area of leaves inclined to the horizontal surface, and was compared with TLAI and PLAI to investigate the effect of leaf orientation on radiation interception, it was shown that the leaf orientation effects, or shading, or both, caused more variation in the interception of solar radiation than did variation in leaf geometry [56]. Effective leaf area index (ELAI) was defined as one half of the total area of light intercepted by leaves per unit horizontal ground surface area based on the assumption that foliage elements randomly distributed in space, and was introduced to precisely describe the shortwave and long wave irradiance condition under a Douglas fir forest stand [57]. Trees usually have differently-shaped canopies and foliage elements which means that a general definition of LAI needs to be obtained. The most popular and widely accepted definition of the true leaf area index (TLAI) is defined as one half of total leaf area per unit surface ground area [58,59] by mathematically analyzing mean projection coefficient for various perfect geometrical objects representing the different shapes of real leaves.
Table 1. Comparison of LAI definitions.
2.2. Canopy Distribution and Leaf Inclination
Based on the assumption that the forest canopy is randomly-distributed, the solar radiation regime was simulated to obtain the amount of penetrated beam radiation through the canopy structure and develop the algorithms to estimate the LAI. According to Beer's Law [60], when a beam of monochromatic radiation passes through a compound, absorbance and transmittance takes place and the radiation will be attenuated. Likewise, when a beam of solar radiation transmits through the canopy, the leaves will absorb some of the visible light and reflect some infrared light which results in the changes between the solar radiation before and after passing through leaves. The extinction coefficient [47] was developed to describe the canopy function when shifting the beam radiation.
The extinction coefficient represents the area of shadow cast on a horizontal surface by the canopy divided by the area of leaves in the canopy or the average projection of leaves onto a horizontal surface [47]. Among the many geometrical objects, the sphere, cylinder, and cone models provided simple methods to calculate the extinction coefficient, the Figure 1 shows an example of extinction coefficient calculation of ellipsoid, and the following equations calculates the shadow area of ellipsoid under parallel light source:
where As is the shadow area of ellipsoid under the illumination of parallel light source, a and b are the long and short axis of ellipsoid respectively, ф is the inclination angle of direct solar beam. The density functions for foliage inclination angle are generally crude approximations to actual foliage inclination angle densities. Thus, the probate and oblate spheroids were proposed to approximate the actual foliage spatial distribution and a more flexible and general equation was developed to calculate a more accurate extinction coefficient of a forest canopy [47]. Based on the ellipsoid model, a leaf angle density function for canopies has been provided and the leaf inclination angle density function is a fundamental property of plant canopy structure and is needed for computing distribution of leaf irradiance [61].
2.3. Gap Fraction
Among the indirect methods to estimate LAI, one popular way is to measure light penetration and the amount and distribution of openings in the canopy which is often referred to as gap fraction [48,62]. Gap fraction describes the possibility of sun light rays not penetrating into the understory through the canopy. The spatial position of each single leaf in reality is determined by its spatial and angular distribution, which is shown in the Figure 2.
The measurement of gap fraction is generally an acceptable way to analyze the structure of a tree canopy and often parameterized with the LAI and leaf angle distribution. P (θ), which denotes the gap fraction at the zenith angle θ of incoming direct sun light, which can be expressed mathematically as the Poisson model:
where G(θ) is the projection coefficient of the foliage onto a plane (normal) perpendicular to incoming radiation [63,48], and L is the LAI of the forest canopy including all aboveground structural components (branches, boles, cones, and epiphytes).
K represents the average projected area of the canopy components on a horizontal plane. It is assumed to link to the extinction coefficient discussed above.
Due to the multilayered structure of a forest canopy, many gaps form within the canopy and allow solar beams to penetrate through and provide enough light for understory growth (Figure 3). This method is based on an assumption that the spatial distribution of foliage is random; the overlapping and clumping of leaves within the canopy has not been considered, thus, the LAI obtained in this way is not the true LAI, but underestimated LAI. Based on the Miller theory [64] and Chen definition [57], the definition of effective LAI is:
where is the measured canopy gap fraction at zenith angle and Le is the effective LAI.
Figure 3. Schematic diagram illustrating the multi-layer theoretical model to calculate the gap fraction.
Chen also pointed out that an important consideration implicitly expressed in (4) is that LAI can be calculated without knowledge of foliage angle distribution if the gap fraction is measured at several zenith angles covering the full range from 0 to π/2 [65].
Figure 3 shows the theoretical model used to calculated gap fraction for multi-layer canopy structure forest stand. The canopy is divided into two levels: branch level and leaf level. For each layer, each branch is composed by a sub-branch with attached leaves and perforations. The probability of penetrating the perforation between leaves PLj(θ) and branched Pbj(θ) in j th layer are calculated respectively, thus, the probability of solar beam penetrate the j th layer is the product of probability of penetrating leaves and branches respectively Pj(θ) = Pbj(θ) × PLj(θ), PL1(θ, β) and PL1(θ) represent the probability of direct solar beam penetrate the leaves in first layer of canopy where the incident angle of solar beam is θ and azimuthal angle is β.
Besides the theoretical formula and analytical expression described in Figure 3, an improved algorithm has been developed by Nilson to estimate the canopy indices and LAI from gap fraction data [66], the method used the eigenvectors and eigenvalue of the covariance matrix to describe the random variation of gap fraction at the near-zenith view direction and showed good performance in relatively open boreal and sub-boreal forest environments.
Gap fraction is usually obtained automatically using optical radiation measurement instrument such as hemispherical photograph, or LAI-2000 (Li-Cor, Inc). A key component of this method is to set up the optimal threshold to separate the leaves from sky. Usually overexposure will result in an overestimated projected LAI and underexposure will make the projected LAI much higher. Different digital hemispherical photographs which were collected under a range of sky brightness conditions for an array of forest species and openness have been compared [67]. Zhang [67] found that the automatic exposure is apt to underestimate the effective LAI and provides a protocol for taking the digital hemispherical photography in different open-canopy conditions.
Many commercial optical instruments based on the gap fraction theory are available to estimate the effective LAI. All of the instruments can be divided into two broad types including linear sensors such as DEMON, line quantum sensors, and the other type are hemispherical sensors such as LAI-2000 (LiCor, Inc), the leaf laser, hemispherical photography and the CI-100. Unfortunately, these usually underestimate the LAI of forest trees due the assumption of random distribution of foliage.
2.3.1. Clumping and Gap Size
There are two causes that affect the accuracy of LAI estimation. The first is the non randomlydistribution of tree foliage resulting in overlapping and clumping between the leaves within canopies. If we want to obtain true LAI, these effects should be carefully considered and incorporated into the LAI estimate. The other cause is light obstruction from canopy components such as branches, boles and stems, especially for conifers on which needles with a shoot will be significantly clumped.
The fraction characteristic of sunfleck for obtaining effective LAI has been well studied under the "gap fraction theory". Because the sunflecks' size and their spatial distribution under canopy result from the gaps in the non-randomly distributed overlaying canopy in the Sun's direction, the structural characteristics of the sunfleck are an important information source. If the quantitative correlation between sunflecks' distribution and frequency and foliage clumping and overlapping effect can be identified, such information is sufficient to translate effective LAI to true LAI based on this relationship denoted by gap size theory. This procedure is summarized below.
In order to quantitatively describe the sunfleck dimensional information, a theoretical model focused on the size and shape of sunflecks under forest canopy needs to be developed. The model uses the sunlit segments along a straight-line transect under the forest canopy to represent the sunfleck size distribution [68], and the probability distribution of shadow-edge angles information (penumbral effects of the finite solar disc) to predict the shape of sunflecks [69]. By combining the gap-size theory and penumbral effect, the light intensity under the plant canopy can be predicted quantitatively and used to accurately and spatially estimate moisture evaporation and photosynthesis of leaves. The sunfleck distribution, direct solar radiation and diffuse skylight are related to the geometrical structure of plant stand, thus Nilson [70] proposed a theoretical model to analyze the gap frequency of forest plant stands based on Possion, positive and negative binomial distributions. The Markov processes theory was also presented by Nilson [70] to predict the gap frequency for stand geometry. Nilson [70] recommended that the binomial and Markov model be used for practical use side by side in order to avoid the unrealizable Poisson model. All three models are based on the assumption of randomly distribution of foliage elements.
Two different gap-size theories were developed by Chen and Black [71] (hereinafter referred to as theory one) and Chen and Cihlar [72] (hereinafter referred to as theory two) to evaluate the effect of foliage clumping at scales larger than the shoot, and the term "clumping index" was given for this effect. The clumping index can be measured by using the sunfleck-LAI instrument Tracing Radiation and Architecture of Canopies (TRAC, 3rd Wave Engineering) [73]. The major difference between these two methods is the dependence on randomly spatially distributed foliage element. Theory one developed a Poisson model to describe sunfleck size distribution under clumped plant canopies based on the assumption that foliage clumps are randomly distributed in space and foliage elements are randomly distributed within each clump. Although it improves the result of LAI estimation without considering the canopy architectural information, it is still not reliable due to this assumption. Theory two developed a gap-size measurement model which can be used for any heterogeneous canopies and is the theoretical foundation of prototype sunfleck-LAI measurement instrument TRAC. It's an improvement on the finite-transect method because it avoids the assumption of local randomness. Thus, theory two avoids making the assumption for a spatial distribution pattern of foliage clumps used in the theory one and is applicable to various of plant canopies.
The Poisson model was first modified by considering the non-random spatial distribution of canopy elements and expressed as [63]:
where G (θ) characterizes the leaf angle distribution. Ω is a parameter determined by the spatial distribution pattern of leaves. When the foliage spatial distribution is random, Ω is 1. If leaves are regularly-distributed (extreme case: leaves are laid side by side), Ω is larger than 1. When leaves are clumped (extreme case: leaves are stacked on top of each other), Ω is less than 1. Foliage in plant canopies is generally clumped, and hence Ω is often referred to as the clumping index [74]. L is the LAI of a forest canopy including all aboveground structural components (branches, boles, cones, and epiphytes). In terms of conifer trees, the clumping index Ω can be separated into two parts:
where E is the stand-level clumping factor at scales larger than shoot and E is the clumping at shoot level and was named after "needle-to-shoot area ratio" [74]. As for deciduous trees, E is equal to 1.
In order to quantify the clumping effects, Chen thought that there are two underlying assumptions of this correction method: shoots are the basic unit responsible for light interception, and shoots randomly distribute within a canopy [72]. In addition, the research found that the non-randomness of shoot position reduces indirect measurement of LAI by approximately 35% for a Douglas-fir canopy. In this situation, there are three components that constitute the percentage of measurement of LAI. Non-randomness of shoot position accounts for 35%, the indirect measurement through destructive sampling captures 31%; the remaining 34% can be explained by the clumping of needles with shoots. The effect of needle clumping with shoots can be obtained by measuring the ratio of half the total needle area in a shoot to the shoot intercepting area.
By combining gap fraction and gap size theory, true LAI can be obtained for individual trees. The regional, landscape, or even global LAI spatial distribution or variation can be acquired using an airborne, or satellite platform based sensors, along with the specific algorithms applicable to the characteristics datasets collected by these platforms.
3. Measurement Methods and Sensors
Among the range of methods used to estimate LAI, there are two broad types: direct and indirect.
3.1. Direct Methods
In terms of the direct method, leaf collection and leaf area determination techniques are often used. The leaf collection can also be implemented by harvesting method through destructive sampling which collects and removes green leaves from a sample plot or some representative trees from a plot, or by non-harvesting litter traps through collecting the leaf litter during the autumn leaf-fall period for deciduous trees [75]. The planimetric and gravimetric are two different kinds of methods of leaf area determination techniques in terms of direct method. Planimetric approach is based on the correlation between the individual leaf area and the number of area units covered by that leaf in a horizontal plane; and the gravimetric method was implemented according to the correlation between dry weight of leaves and leaf area using predetermined leaf mass per area, once the leaf mass per area is known, the whole sample is dried to calculate the leaf area from its dry-weight and sub sample leaf mass per area [75].
3.2. Indirect Methods
The indirect point quadrat and allometric constitute the contact method. The inclined point quadrat method was first elaborated in 1930's [76,77], and further developed by Warren Wilson [78,46], the theoretical study in this work revealed that 57.5 degrees of point quadrat inclination angle is the best one to avoid the variation in relative frequency resulting from differences in foliage angle. The relative frequency is recorded by point quadrats measures is the area projected in the direction in which the quadrat lies. But this result was questioned when it was applied to plant canopy with branch architecture (with needle-clumped shoot), it should be adjusted to 62 degrees in order to estimate the effective LAI, and was tested in the Douglas-fir forest stand [79]. In this work, the Poisson model was used to describe the geometry of tree branches (thin slabs of foliage in which leaves are confined), based on the assumption of randomly dispersed leaves in a single layer of canopy, the values of effective LAI obtained from this model were approximately 55-65% of the true LAI.
The allometric method is based on the relationship between leaf area and other parts of the woody plant elements that support the green live leaf biomass (such as stem, branch diameter, woody to total area fraction, tree height). However, this relationship is not reliable due to the seasonal change, forest health condition, local climate condition, and stand density. It's also a species or site specific statistical relation [75].
In addition, the non-contact indirect method is the most popular and convenient way to estimate LAI in practice. According to the working way of instrument or sensors, passive and active are two common categories for retrieving LAI in different spatial scales ranges from leaf, forest stand, landscape, to region or even global levels.
3.2.1. Passive Sensors
Terrestrial
Without contact with leaves, based on the radiation transmission and gap fraction theory discussed in Sections 2.2 and 2.3, an array of commercial optical instruments has been developed to estimate effective LAI such as Plant Canopy Analyzer (PCA) (LI-COR, Lincoln, NE), DEMON (CISRO, Center for Environmental Mechanics, Canberra, Australia), Ceptometer (Decagon Device, Pullman, WA) and digital camera with fisheye lens . Other instruments characterize the clumping and overlapping effect within plant canopy with branch architecture based on the gap size theory described in section 2.4, this includes the TRAC instrument (3 rd Wave Engineering, Ontario, Canada). A certain weather condition are required to implement different instruments, for example, cloudy sky is the ideal condition for PCA and digital camera with fisheye lens, which are used to capture the "gaps" between foliage elements, however, the TRAC needs the clear sunny days to take the measurement because of the reference value of solar direct radiation is needed to quantitatively locate and discriminate the gaps and their dimensional information.
All airborne and satellite optical remote sensing, especially hyperspectral remote sensing [80], are aimed at retrieving the spectral characteristic of leaves, which are determined by the internal biochemical structure and chlorophyll content of leaves. This basic and important spectral characteristic can be measured by the spectroradiometer for individual leaf or forest canopy at the terrestrial scale. For example, the portable field spectroradiometer FieldSpec Pro FR (Analytical Spectral Devices, Inc. Boulder, USA) is designed to collect solar reflectance, radiance and irradiance measurements. High spectral resolution (1nm interval) with a 350 nm – 2,500 nm spectral range is ideal for vegetation mapping and monitoring applications. The high resolution spectrum measurements are important inputs of the leaf-level model (modified PROSPECT [81]) and geometric optical model (5-scale) [82] for retrieving leaf biochemical contents from hyperspectral remote sensing images.
Airborne
Compared with the satellite images, the aerial images from airborne remote sensors have much finer spatial resolution, however, because of this, the shadows resulted from the obscurance of tree canopies between each other bring biases into the LAI estimation from the airborne optical remote sensors. This complicates the simulation of the radiation regime from optical remotely sensed data without the use of a geometric optical model. Due to different angular distribution of foliage elements, and in forest canopies, the solar radiation interacts with the foliage at four different scales: within groups of trees, within individual crowns, within branches, and within shoots. In the geometric-optical model, according to the calculated shape of canopy crowns and spatial distribution of all canopy elements, the proportion of shadows cast as a function of view direction relative to the hot spot direction can be calculated and simulated, at the same time, the corresponding spectral characteristics can be obtained based on the geometrical shape and arrangement, the spectral reflectance of individual tree or whole canopy can be simulated by using the geometric optical model (5-scale) [82]. Therefore, it's a basic and theoretical foundation for the multi-angular remote sensing throug observing the forest canopies from different view directions shadows between canopies can be effectively eliminated and increase the accuracy of monitoring of changes and patterns of forest stands at different scales. LAI extraction was demonstrated for various crop species in a given region based on high-resolution remote sensing data [83]. In this study, an inversion modeling approach was used on multi-temporal remote sensing to retrieve the LAI spatial seasonal variation distribution and created the look-up table of LAI based on the values modeled using the PROSPECT-SAIL radiation model by inputting in situ measurement data and literature values served as a reference tool. Other literature [84] reported that imaging spectrometer data was used to retrieve spatially explicit information on canopy structure and foliage water content in order to assess first risk and to manage the impact of forest fires. Two hybrid canopy reflectance models, GeoSAIL and FLIGHT, were used to simulate the canopy reflectance of the observed heterogeneous forest stand. The results demonstrate the feasibility of estimating structure and foliage water content of a coniferous canopy based on radiative transfer modeling, and was validated by ground field measurement. This method is more favorable than the traditional empirical method relying on the relationship between the LAI and vegetation index.
The airborne multi-spectral remote sensors were extensively used to retrieve LAI by correlating the spectral information from remotely sensed data and ground based measured LAI values [85]. For example, Airborne Imaging Spectrometer for Applications (AISA) radiometer was used to capture the crop response through monitoring and mapping the LAI variogram map using the residual maximum likelihood method, and the result derived from airborne images was cross-validated with the LAI estimation result from kriging interpolation method [86]. An eleven-band Daedalus AADS 1268 ATM airborne multi spectral sensor (MSS) was employed to acquire the spectral information for grass land in study area [87]. Since the availability of satellite images with finer resolution and more extensive coverage, most LAI studies are based on satellite- remote sensing data.
Satellite
The premise of retrieving LAI based on spectral remote sensing data relies on the the unique spectral response characteristic of green leaves compared with other land surface materials. The selective absorption of solar radiation of green leaves, the high absorption of visible light, and much more red light than infrared light make it possible to generate vegetation indices such as Simple Ratio (SR) [88], Normalized Difference Vegetation Index (NDVI) [89], Enhanced Vegetation Index (EVI) [90], and Reduced Simple Ratio (RSR)[91]. It shows that the RSR is better than NDVI or SR for estimating LAI since the RSR is more sensitive to the change of LAI [92], in addition, the RSR can be effectively improve the LAI retrieval in the boreal forest of Canada, the shortwave infrared (SWIR) signal used in RSR calculation reducing the background effects and increase sensitivity, and the land cover map may not be required prior to LAI mapping, a greater improvement can be made by introducing SWIR into RSR for r 2 of LAI estimation in jack pine (30%) from 0.554 to 0.662 and black spruce stands (15%) from original 0.501 to 0.578[91]. EVI was developed as satellite vegetation product for the Terra and Aqua Moderate Resolution Imaging Spectroradiometers (MODIS), it can improved sensitivity in high biomass regions while minimizing soil and atmosphere influences by calculating the combination of red, near infrared and blue bands. But there are some limitation of EVI due to the blue band which make it difficult to generate long-term EVI time series product, thus, a two bands EVI has been developed [93].
Landsat series sensors (thematic mapper, TM)/(enhanced thematic mapper, ETM + ) are commonly used due to their balance between spectral, spatial, and temporal resolutions. Based on the various regression relationships between the many vegetation indices and LAI, the linear and non-linear estimation model has been developed to estimate and map LAI at the landscape and global levels [94, 15]. In the boreal forests of Canada, r 2 has achieved values between 0.38 and 0.66 [95]. In addition, regression and geostatistical methods were compared for mapping LAI using Landsat ETM + datasets in boreal forest of Canada [13]. Due to the impracticality of obtaining reference LAI measurements, it is suggested that a non-spatial regression method (reduced major axis) should be used to simulate regional NPP. One major issue of retrieving LAI from vegetation index calculated from the different band combinations of multi- or hyper-spectral sensors is the saturation of LAI, which means the vegetation index and LAI will not increase linearly, and the complicated structure of forest canopy such as the angular distribution of foliage element and canopy structure will affect the reflected radiances. Furthermore, the effects of understory and soil back ground need to be considered. In addition, since the regression relationship are site-, time- and species specific, these cannot be easily applied in a landscape, or global level.
Hyperspectral remote sensing datasets have a fine spectral resolution allowing for the detection of physiological characteristics such as accurate chlorophyll a and b content estimation [96]. The relationship between hyperspectral vegetation indices and LAI has been examined for wheat and chickpea over their growth cycles [97]. Not only did the examination focus on the leaf level, but also the canopy structural variables inversely estimated based on a reflectance model from hyperspectral remote sensing data [98]. Moisture condition is an important indicator for vegetation stress [99] due to forest insects such as mountain pine beetle the water content can be easily detected and monitored by remote sensing data over large spatial and time scales, especially with hyperspectral remote sensing data. Due to the fine spectral resolution of hyperspectral remote sensing data images, the reflectance inverse model, along with the hyperspectral indices was used to estimate the leaf and canopy water content in poplar plantations [100,18]. LAI estimation based on hyperspectral data has been done both in croplands [101,102] or forest stands [40]. The numerous band information of hyperspectral remote sensing data will unavoidably bring much redundant information, thus a compression algorithm must be employed to be efficiency, thus, the significance of the of data compression on the retrieval of leaf chlorophyll content and LAI for precision agriculture application from hyperspectral data has been assessed [103]. In terms of prediction power and stability, broadband and hyperspectral vegetation indices are better for estimation of green LAI and canopy chlorophyll density [104].
Another important aspect of LAI estimation is the time series issue, and not only the spatial distribution of LAI in a given region with a single time. Much of ecological models are designed to estimate those with time-series changes of ecological variables such as Net Primary Productivity (NPP); therefore LAI as a key input parameter is also needed first to get the time-series spatial distribution based on remote sensing data. Sometimes due to non-availability of Landsat images for a certain time range, the monthly LAI variation images cannot be obtained. Some work has been done with the help of MODIS datasets to get the Landsat LAI time series imagery [105]. MODIS LAI [42, 43] product, which is an eight-day interval time series, images with 250-meter spatial resolution and has a total of 45 scenes for a whole year in this region. The variation trend curve can first be retrieved based on the MODIS-LAI product, and then applied to Landsat images to generate time-series Landsat images which will be inputted into a process-based model to simulate the whole year NPP variation and spatial distribution. A novel and simple approach to optimal interpolation analysis of LAI using MODIS data has been developed to make MODIS-LAI products more appropriate for environmental prediction than the original data [106].
3.2.2. Active Sensors
Without receiving the reflected solar radiation by land surfaces, the active remote sensors emit a certain wavelength single and capture the echoes reflected by target objects. Radio Detection and Range (Radar) and previously defined LiDAR are two common active remote sensing systems. Radar emits electromagnetic waves (such as microwave or radio waves) to identify the range by capturing the waves reflected by the target and detected by a receiver. So it's possible to detect the structure information and physical dimensional information for forest stands and individual trees, even the biophysical parameters such as LAI using Radar system. The responses of microwave Radar to LAI, canopy moisture, dry weight of wheat, corn and sorghum were investigated as early as 1980s [107]. LiDARis a relatively new remote sensing instrument used in forest application. Compared with the passively receiving spectral reflectance signals from land surface objects for optical remote sensing sensors, LiDAR systems actively emit a wavelength laser light (such as green or near infrared), the laser beam will transmit through its straight path until it is changed by the encountering object. Terrestrial, airborne and satellite LiDAR system can be sorted out according to the based platform. Also, discrete and fullwaveform are two common LiDAR systems. The discrete LiDAR system, provides single or multi- returns for each laser pulse LiDAR, the fullwaveform LiDAR provides a waveform for one pulse. For discrete LiDAR usually three or more echoes bounce back to the sensor for each laser pulse. Terrestrial LiDAR is a discreet pulse system but with only one return for each laser pulse. Discrete LiDAR systems measure the distance between sensor and objects by recording the time of flight of laser. Each laser pulse return records two different kinds of information including spatial position (x, y, z) coordinates, and an intensity value. Only two dimensional information provided by optical passive remote sensing, but active remote sensing has shown ability to capture more details about three-dimensional structure information. At the same time, it overcomes some of the disadvantages of passive remote sensing such as cloud-cover issues and vegetation index saturation problems. By using an active remote sensing system, one can subjectively choose a study area of interest.
Terrestrial
The non-random and complicated spatial and angular distribution of leaves within canopies requires one to obtain more details in order to retrieve the true LAI. In particular, terrestrial LiDAR makes it possible due to its high-density laser pulse returns, but there are still some issues that need to be carefully consider. The first question considers the influence of terrestrial LiDAR set-up on the accuracy of retrieving forest stand structural information [108], the laser scanning pattern will greatly affect the amount of information one will obtain due to the "shadow effect", according to the different location where scanner sits, there are various geometrical scanning patterns including the lateral sideway scanning, bottom-up hemispherical scanning, top-down canopy crane scanning. The appropriate geometric scanning way should be chosen based on the specific study purpose, if one wants to capture the height of a tree, the top-down scanning should be taken, however, the bottom-up scanning way will be ideal to predict the gap fraction by analogy with the digital hemispherical photos. In the gap fraction theory, the extinction coefficient [47] is a very useful parameter to characterize the blocking effect of leaves with various shapes under parallel light source (i.e. direct solar beam), as for the laser generated by terrestrial LiDAR system, since the distance between the light source and object are close enough to consider it as a point light source (i.e. laser beam scanning), instead of parallel light source. Blocking effect occurs when the laser beam cannot reach some areas obscured by the first object it encounters in the transmission path, which is defined as a ratio of the area illuminate by laser beam over the total surface area of the object, the blocking effect describe the obscure of leaves with different shapes under the point light source. The most obvious difference between the laser beam and direct solar beam is the area of object illuminated by different light sources, in the case of the direct solar beam, it's parallel light, but for the laser scanning, because the position of laser scanner is fixed, it should be treated as point light source, the difference of blocking effect between parallel and point light source is shown in Figure 4.
After getting the parameter of blocking effect, a 3-D gap fraction method should be developed for discontinuous canopy for different species from different view directions, by following the procedure described in Figure 1, the effective LAI can be acquired from the 3-D gap fraction method. Then, due to the fine resolution of laser beam (1mm can be achieved by Leica ScanStation 2, for example), the gap size theory applicable to 3-D point cloud data produced by terrestrial LiDAR needs to be developed to characterize the clumping effect and translate the effective LAI to true LAI.
A significant difference between terrestrial and airborne LiDAR are the limited ground laser pulse returns from terrestrial LiDAR systems due to its natural scanning angle and position. The terrestrial LiDAR ground point area also distributed in uneven frequencies, where more points tend to be collected near the scanner and fewer points farther away from the scanner; this issue is exasperated by the angel at which the ground faces the scanner. This means that the gap fraction and effective LAI cannot be obtained according to the ratio of ground laser pulse returns and total returns which has been widely used to characterize canopy coverage based on airborne LiDAR [109,110]. 3-D voxel model is a popular method to process the point cloud data generated from terrestrial LiDAR, and it is also used to calculate the plant area density [35]. There still numerous theoretical problem needed to be resolved regarding LAI retrieval from terrestrial LiDAR, for example, how to separate the photosynthetic and non-photosynthetic parts in the point cloud data for an individual tree or forest stand? In other words, the woody area is difficult to be obtained for evergreen trees. Since the point cloud data is discrete, translating it into a raster image is still an issue without losing accuracy. Because of the "block effect", the accuracy assessment of final LAI result requires the understanding of the information loss between the point cloud data and true tree.
Airborne
Not much work has been done on LAI retrieval from radar sensors, some are trying to build the relationship between radar signals and LAI [107,111,112]. However, extensive work on the application of airborne LiDAR systems in forestry has been done [113-115]. Methodologies based on LiDAR datasets have been developed to assess three-dimensional forest structures [21-26]. Due to the advantage of sufficient three-dimensional information obtained from terrestrial and airborne LiDAR systems, these have been used to estimate defoliation during forest insect outbreak [27,28]. Morsdorf et al. [110] reported that estimation of gap fraction and LAI from small footprint airborne LiDAR, the first echo of laser pulse capture 73% variation of fractional cover with a RMSE of 0.18, and predict the 69% LAI variation with RMSE 0.01, and the results from airborne LiDAR based on regression agreewith the result from imaging spectrometry, and showed similar spatial patterns and ranges of values. Koetz [32] examined the feasibility of forest canopy structure characterization using LiDAR waveform model combined with the 3-D radiative transfer models. The forest biophysical parameters retrieved based on this method such as fractional cover, LAI, maximum tree height, and vertical crown extension are all good indicator for the horizontal and vertical forest canopy structure. High-density laser pulse returns of terrestrial LiDAR capture more details about the structure information of individual trees, hence, more and more researchers have begun to explore the advantages and potential power to retrieve biophysical parameters of forest ecosystems based on LiDAR [29-33]. Attention is not only placed on the leaf-on circumstance, but also the leaf-off and comparison between these two conditions [37, 38] in order to separate the points which could represent the photosynthetic parts of canopy. Leaves are usually a good indicator of environmental stresses, and LiDAR has been used to monitor forest stands and environmental changes through the indicator which LAI served as a key parameter [39].
Satellite
Due to the limited availability of satellite-based LiDAR systems specifically designed to study vegetation LAI discussion of research in this direction is not presented in this paper. Most of the study about retrieving LAI from LiDAR system still focuses on the airborne and terrestrial based LiDAR system, which serve as pioneer studies for satellite LiDAR system of the future. However, Radar system have been successfully used to retrieve LAI at the landscape level, for example, the radar backscatter of ERS-1 C-band VV polarization SAR data was used to acquire the LAI and soil moisture content in sugar beet field. The Leuwen and Clevers expression of the waster cloud model was fitted to determine the in situ relationship between radar backscatter and LAI. The results show considerable potential the operational application of ERS-1 SAR data in crop monitoring [116]. In addition, the EVNISAT Advanced Synthetic Aperture Radar (ASAR) vertical/horizontal (VV/HH) polarization ratio was correlated to the ground measured LAI for boreal forests with mean LAI estimation error 0.3 for Norway spruce (Picea abies(L.) Karst.) and 0.07 for Scots pine (Pinus sylvestries L.) [117].
3.3. Scaling Issues
Based on the discussion above, remote sensing techniques of different platforms such as aerial, ground-based, and space are used to rapidly retrieve LAI on the landscape scale, the sensors involves not only optical remote sensing, but also the active LiDAR system ranges from terrestrial, airborne, satellite based system. A wide range of spatial resolution images have been obtained by observing Earth using an array of remote sensing sensors. How to apply one algorithm developed for one scale to another scale successfully is a great issue due to the heterogeneity of land surface texture and nonlinear estimation processes which will bias the biophysical parameter estimation based on the spatial resolution remote sensing images. Great amounts of work should be done to enhance the transportability of algorithms between different scales. In terms of LAI, the most important advantage of estimating LAI using remote sensing is that it remains consistent while the spatial scale changes. LAI has therefore been a meaningful biophysical parameter fit for multi-scale research ranges from plot to landscape level. It has been a convenient and ecologically-relevant variable for multi-scale studies that range from leaf to region [12]. From the spectral perspective, the mechanism of scaling from band to vegetation indices has been reported and discussed [118]. In order to map a biophysical parameter such as LAI to a landscape level based on remote sensing images, an appropriate scaling algorithm based on Landsat ETMdata has been developed based on sub-pixel information. The lumped calculation and distributed calculation were compared to find the bias that served as the coefficient to develop the scaling model [119]. In addition, a physically-based scaling with explicit spatial resolution dependent on radiative transfer formulation has been developed and applied to scaling LAI retrievals from NOAA-AVHRR data to other resolutions [120]. Regarding the scaling issue, heterogeneity is a key concept and the major source of error. There are two ways to scale transferring according to the direction of scaling: up-scaling and down-scaling, various LAI products are generated from remote sensing sensors with different spatial resolutions, when the LAI product with high resolution are transferred to low resolution by clumping scheme, the "up-scaling" term can be applicable to this method; for example, the LAI map from Landsat ETM with 30 × 30 m resolution can be up scaled to 1 km × 1 km images with multiple mosaic Landsat ETM images. Recently, a novel theory titled "spectral invariant theory" was developed [42], which is used to characterize the single scattering albedo of a volumetric element, which in essence can be tuned to account for differences in scaling and spectral sampling from different sensors to create long-term records of LAI from multiple sensors like AVHRR and MODIS. It also serves as a foundation to investigate the differences in spatial scaling and spectral band widths in introducing bias into LAI retrievals.
4. Conclusions
Direct and indirect terrestrial methods are the foundation and basis for obtaining accurate LAI estimates. The destructive sampling method for various forest tree species provides valuable data to validate results obtained from remote sensing platforms and algorithms. It is necessary to develop optical sensors that capture the light environment within the canopy which not only contains direct light from sunlight through the gaps of trees, but also diffused light and environmental light affections. Most of the optical instruments based on gap fraction theory infer effective LAI by recording the Photosynthetic Active Radiation (PAR), with these techniques it's difficult to visualize the site environmental such as density and canopy height expect by utilizing hemispherical photography approach. Although a hemispherical photograph can permanently capture the light conditions at the moment that the picture is taken, it is difficult to control the exposure values and acquire every detail due to the resolution of which the digital camera is capable. Furthermore, the information obtained from digital hemispherical photographs is only two dimensional, thus, terrestrial LiDAR is an ideal instrument to complement photography by permanently recording the three-dimensional structural information. Some terrestrial LiDAR scanners are also capable of recording 360 degrees color images by setting up an appropriate exposure value (example: Leica ScanStation 2), however, the optical distortions in such imagery still needs to be reconciled. An instrument which not only records the Photosynthesis Photo Flux Density (PPFD), but also permanently captures the light conditions at the moment when the measurement is taken is ideal. Due to the non-random spatial distribution of leaves within a canopy, overlapping, and clumping effects, it is difficult to acquire true LAI despite removing partial effects based on the gap size analysis theory. Another problem of estimating LAI is the effect of branches and stems blocking the light. This blockage leads to the overestimation of LAI; thus far, the approach to remove this effect employs species-dependent empirical estimation of the fraction of nonphotosynthetic portions of a tree. With the development of remote sensing technology, accurate, timely and dynamic acquisition of LAI at the landscape level requires us to develop new algorithms optimized for the characteristics of the remote sensors. Especially, with the emergence of LiDAR, we should synthesize the power to estimate the biophysical parameters of trees from forest stand level to landscape level, regional level, and even to global level by combing the spectral information of optical remote sensing and three-dimensional structure information from LiDAR. In such way we can provide more-accurate, timely and meaningful information for the development of ecological models and thus the dynamic monitoring of changes in an ecosystem.
Acknowledgements
Funding has been provided by the Precision Forestry Cooperative (PFC), University of Washington (UW). Equipment and technical support were provided by the UW Remote Sensing and Geospatial Analysis Laboratory (UW–RSGAL). Three anonymous reviewers are heartily thanked for their insights and suggestions which improved this paper.
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© 2009 by the authors; licensee Molecular Diversity Preservation International, Basel, Switzerland. This article is an open-access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/3.0/).
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ATSB TRANSPORT SAFETY INVESTIGATION REPORT Aviation Research and Analysis Report – B2004/0321 Final
Human factors analysis of Australian aviation accidents and comparison with the United States
ATSB TRANSPORT SAFETY INVESTIGATION REPORT
Aviation Research and Analysis Report B2004/0321 Final
Human factors analysis of Australian aviation accidents and comparison with the United States
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– ii –
CONTENTS
DOCUMENT RETRIEVAL INFORMATION
Publication title
Human factors analysis of Australian aviation accidents and comparison with the United States
Author(s)
Inglis, M, Sutton, J & McRandle, B
Prepared by
Australian Transport Safety Bureau PO Box 967, Civic Square ACT 2608 Australia www.atsb.gov.au
Acknowledgements
Dr Scott Shappell and colleagues for their assistance.
Mr Keith McGuire, former manager of the Seattle office of NTSB, for his assistance.
Abstract
This study provides a systematic analysis of the types of human error occurring in Australian civil aviation accidents. It also compares these results against a larger sample of accidents occurring in the United States. Inevitably, all humans make errors. But safety can be enhanced when the number and consequences of these errors are reduced. This paper aims to enhance aviation safety through extending our knowledge of aircrew errors.
While the types of accidents and flying operations varied slightly between Australia and the US, the pattern of aircrew errors were remarkably similar. Skill-based errors were the most prevalent type of aircrew unsafe act, followed by decision errors, violations and perceptual errors in both Australian and US accidents. Skill-based errors were also the most common error type irrespective of the severity of the accident. In Australia, decision errors and violations were more common in fatal accidents.
The trend data indicated that the proportion of accidents associated with skill-based errors did not change over the period studied, but decision errors decreased.
The distribution of unsafe acts across flying operation type indicated that skill-based errors were disproportionately higher in both general aviation and agricultural operations. Charter operations (called on-demand in the US) had a high proportion of violations and decision errors. The pattern of unsafe acts within each type of flying operation was broadly similar for Australian and US accidents.
The study demonstrated that the greatest gains in reducing aviation accidents could be achieved by reducing skill-based errors. Moreover, improvements in aeronautical decision making and the modification of risk-taking behaviour could reduce aviation fatalities. Further study is needed to both identify which particular skills need improving, and to investigate the importance of interactions between the error categories.
THE AUSTRALIAN TRANSPORT SAFETY BUREAU
The Australian Transport Safety Bureau (ATSB) is an operationally independent multi-modal Bureau within the Australian Government Department of Transport and Regional Services. ATSB investigations are independent of regulatory, operator or other external bodies.
The ATSB is responsible for investigating accidents and other transport safety matters involving civil aviation, marine and rail operations in Australia that fall within Commonwealth jurisdiction, as well as participating in overseas investigations involving Australian registered aircraft and ships. A primary concern is the safety of commercial transport, with particular regard to fare-paying passenger operations. Accordingly, the ATSB also conducts investigations and studies of the transport system to identify underlying factors and trends that have the potential to adversely affect safety.
The ATSB performs its functions in accordance with the provisions of the Transport Safety Investigation Act 2003 and, where applicable, relevant international agreements. The object of a safety investigation is to determine the circumstances to prevent other similar events. The results of these determinations form the basis for safety action, including recommendations where necessary. As with equivalent overseas organisations, the ATSB has no power to implement its recommendations.
It is not the object of an investigation to determine blame or liability. However, it should be recognised that an investigation report must include factual material of sufficient weight to support the analysis and findings. That material will at times contain information reflecting on the performance of individuals and organisations, and how their actions may have contributed to the outcomes of the matter under investigation. At all times the ATSB endeavours to balance the use of material that could imply adverse comment with the need to properly explain what happened, and why, in a fair and unbiased manner.
Central to the ATSB's investigation of transport safety matters is the early identification of safety issues in the transport environment. While the Bureau issues recommendations to regulatory authorities, industry, or other agencies in order to address safety issues, its preference is for organisations to make safety enhancements during the course of an investigation. The Bureau is pleased to report positive safety action in its final reports rather than make formal recommendations. Recommendations may be issued in conjunction with ATSB reports or independently. A safety issue may lead to a number of similar recommendations, each issued to a different agency.
The ATSB does not have the resources to carry out a full cost-benefit analysis of each safety recommendation. The cost of a recommendation must be balanced against its benefits to safety, and transport safety involves the whole community. Such analysis is a matter for the body to which the recommendation is addressed (for example, the relevant regulatory authority in aviation, marine or rail in consultation with the industry).
EXECUTIVE SUMMARY
All humans make errors as an inevitable consequence of being human (Adams, 2006; Helmreich & Merritt, 1998). The role of human error in aviation accidents is well established with previous studies reporting that between 70% and 80% of aviation accidents result from some type of human error (Lourens, 1989; O'Hare et al., 1994). The greatest potential for reducing aviation accidents lies in understanding the human contribution to accidents (Wiegmann & Shappell, 2001). When the number and consequences of errors are reduced, safety is enhanced (Adams, 2006; Helmreich & Merritt, 1998).
This study used the Human Factors Analysis and Classification System (HFACS) to analyse the unsafe acts of aircrew in Australian civil aviation accidents and to compare them with the unsafe acts of aircrew in accidents in the United States of America (US).
The Human Factors Analysis and Classification System is a taxonomy that describes the human factors that contribute to an accident or incident. It is based on a sequential or chain-of-events theory of accident causation. The classification system has four levels, each of which influences the next level. These four levels are called: 1) organisational influences, 2) unsafe supervision, 3) preconditions for unsafe acts, and 4) unsafe acts of operators (Wiegmann & Shappell, 2003). While HFACS has limitations, it has the advantage of being a mature tool with a vast USbased database and accompanying analysis.
This study is based on 10 years of Australian and US accident data. The US accidents had been coded by the NTSB using their taxonomy, with HFACS applied subsequently by the Federal Aviation Administration (FAA). For the purpose of this study, the Australian accidents were reclassified using the US National Transportation Safety Board (NTSB) aviation accident taxonomy and HFACS to enable direct comparison with the US data.
The Australian results showed that the most prevalent unsafe acts were skill-based errors, followed by decision errors, violations and perceptual errors, respectively:
* The distribution of unsafe acts across flying operation type indicated that charter operations (called on-demand in the US) had a relatively high proportion of violations, decision errors and perceptual errors. Skill-based errors were disproportionately high in both general aviation and agricultural operations. Very few aircrew-related violations were identified in aerial agriculture accidents.
* The trend data indicated that the proportion of accidents with a skill-based error did not decrease over time, but the proportion of accidents associated with decision errors decreased. It is unclear what lies behind these findings.
* The pattern of aircrew errors varied with the severity of the accident. Violations, decision errors and perceptual errors were more likely to be identified as factors for fatal accidents.
The comparison with the US accidents demonstrated a remarkably similar pattern, and both countries had a similar proportion of accidents where at least one unsafe act could be identified (around 70%). General aviation operations were responsible for the vast majority of accidents and the majority of errors and violations. The rank order of unsafe act categories was the same in both sets of accidents. Skill-based
errors were the most common type of aircrew error, followed by decision errors, violations and perceptual errors, respectively.
While the pattern was very similar, the Australian and US results differed with a higher percentage of skill-based errors in Australian accidents and a significantly lower number of Australian accidents associated with violations. There was also a difference in the frequency of decision errors and perceptual errors between fatal and non-fatal accidents in Australia, which was not observed in the results for US accidents. The study found that around 11% of Australian accidents resulted in a fatality, but 21% of US accidents resulted in a fatality. The reasons for this difference were not able to be explained by HFACS.
The results of this study have provided a broad overview of the types of unsafe acts made by aircrew in different operational categories. In summary, it seems likely that a reduction in skill-based errors will result in fewer aviation accidents, but a reduction in fatal accidents will be dependent upon reducing violations and improving aeronautical decision making.
Subsequent studies should seek to identify, more precisely, the most important types of skill-based errors, decision errors, perceptual errors and violations associated with accidents. Future research could helpfully probe the interaction between error types, and between errors and violations, as a means to better understand the factors important for fatal accidents.
ABBREVIATIONS
– x –
1 INTRODUCTION
1.1 Background
All humans make errors as an inevitable consequence of being human (Adams, 2006; Helmreich & Merritt, 1998). The role of human error in aviation accidents is well established with previous studies reporting that between 70% and 80% of aviation accidents result from some type of human error (Lourens, 1989; O'Hare et al., 1994). The greatest potential for reducing aviation accidents lies in understanding the human contribution to accidents (Wiegmann & Shappell, 2001). When the number and consequences of errors are reduced, safety is enhanced (Adams, 2006; Helmreich & Merritt, 1998).
There is potential to learn more about the categories or nature of human factors occurring in Australian accidents. The Australian Transport Safety Bureau (ATSB) maintains a large database of aviation accidents that includes information on the actions of the crew and others involved in the accident sequence, the aircraft, the location and environmental factors and a description of the accident sequence. While individual investigations have explored the human factors relevant to each particular accident, these have not previously been analysed for the purpose of identifying all the human factors involved in a large sample of accidents.
Analysis of the contributing human factors will tell us a vital part of the story. It will provide information on the types of human errors made in accidents and identify trends. The significance of the results will be increased by comparison with other accident data. Comparison against another country's accident data will assist in the interpretation of Australian results or, in other words, provide a frame of reference. It will help clarify our strengths and weaknesses in this important area of aviation safety.
The benefit to aviation safety of increasing our knowledge of the type of human factors contributing to accidents and comparing it against international data includes the ability to:
* identify safety problems
* design evidence-based interventions that work towards reducing accidents and error frequencies
* learn from solutions developed by other countries, and
* provide an opportunity for other countries to learn from Australian initiatives.
The Human Factors Analysis and Classification System (HFACS; described below) enables us to both systematically analyse the human factors intrinsic to aviation accidents and compare the Australian results against the much larger accident set from the United States of America (US). The use of HFACS will also allow future comparison against other countries that are also using this taxonomy. The use of a common classification system removes the previously experienced problems in comparing aviation data collected with different coding schemes (O'Hare, 2000).
Although similar in many ways, the US aviation industry is considerably larger than the Australian industry and accordingly has about 10 times the number of reported accidents. There are considerably more resources and information available in the US to design and fund aviation safety programs. The rationale behind comparing Australian and US data is to discover whether there are similar trends in involvement of human
factors in aviation accidents. If this is the case, it may be reasonable to assume that solutions to common problems developed in one country will be transferable to the other.
1.2 Description of HFACS
The Human Factors Analysis and Classification System is a taxonomy that describes the human factors that contribute to an accident or incident. It is based on a sequential or chain-of-events theory of accident causation and was derived from Reason's (1990) accident model (cited in Wiegmann & Shappell, 2003). The classification system has four levels, each of which influences the next level. These four levels are called: 1) organisational influences, 2) unsafe supervision, 3) preconditions for unsafe acts and 4) unsafe acts of operators (Wiegmann & Shappell, 2003). Within these four levels there are numerous sub-categories that further describe the contributing human factor. The HFACS framework is presented in Figure 1.
Figure 1: Flow diagram of the Human Factors Analysis and Classification System (HFACS)
Errors
UNSAFE
ACTS
Errors
Perceptual
Errors
Skill-Based
Errors
Decision
Errors
Exceptional
Routine
Violations
Inadequate
Supervision
Planned
Inappropriate
Operations
Failed to
Correct
Problem
Supervisory
Violations
UNSAFE
SUPERVISION
Resource
Management
Organizational
Climate
Operational
Process
ORGANIZATIONAL
INFLUENCES
PRECONDITIONS
FOR
UNSAFE ACTS
Condition of
Operators
Physical/
Mental
Limitations
Adverse
Mental
States
Technological
Environment
Physical
Environment
Personal
Readiness
Crew Resource
Management
Personnel
Factors
Adverse
Physiological
States
Environmental
Factors
Source: reproduced from (Shappell, 2005) with permission of Dr SA Shappell.
The majority of research in the US, especially the more recent research, concentrates on the operator level, called 'unsafe acts' in Figure 1, contending that this level is particularly relevant to the study of aviation accidents (Wiegmann et al., 2005). A description of this level of the taxonomy is provided below. Details of the other HFACS categories are summarised in Appendix A and a complete description of HFACS can be found in Wiegmann and Shappell (2003).
Unsafe acts of operators refer to the actions of operators (including aircrew, maintenance and other personnel such as air traffic control officers) that directly
contribute to an accident. These actions are divided into two categories, errors and violations. Errors are defined as behaviours that proceed as planned but fail to achieve the intended outcome, while violations are the deliberate breach of the rules and regulations of flight (Shappell, 2005).
1.2.1 Errors
The error category includes three types of errors:
* skill-based
* decision
* perceptual.
The easiest way to describe these errors is as 'doing', 'thinking' and 'perceiving' errors, respectively (Detwiler et al., 2005a).
Skill-based errors are typically the result of poor technique or failures in memory and attention. They affect tasks that are highly practised and performed with little conscious thought (Shappell & Wiegmann, 2000a, 2000b). An example of a failure of attention is driving to a destination along a commonly used route and starting to follow the familiar route rather than go on to the intended destination. Further examples of these errors include breakdown in visual scanning, task fixation, unintentional operation of some controls, skipped items in checklists, incorrect fuel calculations, missed steps in the task sequence and forgotten intentions (Shappell & Wiegmann, 2000b).
Decision errors are 'thinking errors' and are grouped into three types in HFACS. The first is implementing the wrong procedure when the situation is not appropriately recognised. The second is selecting the wrong response from a number of options and the third is inadequately solving a problem in a new or unique situation that is time critical (Wiegmann et al., 2005). Examples of decision errors include delayed or incorrect decisions to abort takeoffs or initiate a go around, taking off overloaded, not fully checking fuel levels or not obtaining a weather forecast during pre-flight.
Perceptual errors refer to inaccurate perception of sensory information. Unusual sensory information, or deterioration in available information, can lead to perceptual errors (Shappell & Wiegmann, 2000b). The perceptual error is the erroneous input by the pilot and not the disoriented or illusory state of the pilot (Wiegmann et al., 2005). These errors include sensory illusions and spatial disorientation on dark nights or in instrument meteorological conditions (IMC). The pilot is then operating with imperfect and incomplete information which leads to misjudging distances, altitudes, descent rates or incorrect flight control inputs (Wiegmann et al., 2005).
1.2.2 Violations
Whereas errors occur when an operator is trying to achieve the desired outcome while staying within the rules, violations are a deliberate breach of the rules by an operator who knows they are breaking air law. Two types of violations are described in HFACS: routine and exceptional violations (Wiegmann et al., 2005).
Routine violations refer to actions that exceed the rules by small margins and are not usually enforced by authorities (Wiegmann et al., 2005). The individual would see their actions as a shortcut or way of dealing with a rule or procedure they consider ineffective or unnecessary. For example, pilots who regularly fly without carrying their licence or medical certificate.
Exceptional violations, by contrast, are not characteristic of the individual, nor condoned by management or regulators (Wiegmann et al., 2005). An example of an extreme violation is a normally conscientious pilot flying under the Sydney Harbour Bridge without approval. These violations often significantly deviate from rules or regulations.
The US studies do not try to classify violations to this level as there is generally insufficient information to say if they were routine or exceptional. For this reason, the ATSB did not attempt to specify the type of violation in this study.
1.3 Validation of HFACS
The Human Factors Analysis and Classification System was originally developed for use within the US military both to guide investigations and to analyse accident data (Shappell & Wiegmann, 2000b). Since its development, the classification system has been used in a variety of transport and occupational settings including aviation, road and rail transport (Federal Railroad Administration, 2005; Gaur, 2005; Li & Harris, 2005; Pape et al., 2001; Shappell, 2005; Shappell & Wiegmann, 2000a; Thompson et al., 2005). It has also been used by the medical, oil and mining industries (Shappell, 2005). Globally, the system is gaining acceptance and has now been applied by military and or civilian organisations in the US, Canada, The Netherlands, India, Israel, Greece and United Kingdom (using foreign and not UK accident data). The increasingly wide use of HFACS is establishing it as a reliable and valid accident classification tool.
The system has been extensively used in the US with over 30,000 US civil aviation accidents classified by HFACS as well as a large proportion of military accidents. The developers of HFACS concluded that it reliably accommodated all the human contributory factors identified in the US civil accidents studied (Wiegmann & Shappell, 2001). It has also been used to analyse the major flying operations (commercial, general aviation and emergency medical services) and specific accident types, such as controlled flight into terrain (CFIT) and to compare regions within the US such as Alaska with continental US (Boquet et al., 2005; Detwiler et al., 2005b; Shappell & Wiegmann, 2003a, 2004; Wiegmann & Shappell, 2001; Wiegmann et al., 2005). Within the US aviation studies, the results have been consistent over time, with only small changes in the percentage of accidents associated with unsafe acts observed between earlier and later studies (compare Wiegmann & Shappell, 2001 and Shappell & Wiegmann, 2003b with Wiegmann et al., 2005).
The application of HFACS has also been effective for conducting comparisons between countries. Studies comparing US aviation accidents and those of other countries including China, Greece and India have been consistent (Gaur, 2005; Li & Harris, 2005; Li et al., 2005; Markou et al., 2006). In comparing the HFACS results associated with 523 Taiwanese military accidents with 119 US civil aviation accidents involving regular public transport, Li and Harris (2005) concluded that HFACS was a reliable tool that could be applied to accident data in another country. It should be noted here that Li and Harris compared the results at all levels of the HFACS model using a later version of HFACS that described 19 causal categories rather than the 17 categories used in Wiegmann and Shappell's 2001 study. In a subsequent study, Li, Harris and Chen (2005) compared Taiwanese accidents with US and Indian accidents, all of which were classified with HFACS, for the purpose of studying the role of culture in aviation
accidents. Their results indicated that while there were differences in the contributory factors between the countries, skill-based errors were associated with the greatest number of accidents in each of the countries followed by decision errors, violations and perceptual errors respectively. It should be noted that the greater proportion of skillbased errors, in the Taiwanese accidents, was small if not negligible. The comparison between the Greek results (Markou et al., 2006) and US results again showed more similarities than differences in the human factors identified in aviation accidents in the two countries.
In summary, HFACS can be applied retrospectively to classify contributing human factors identified in the existing accident record. International studies that have applied HFACS have produced results that show that the pattern of errors and violations are broadly similar.
1.4 Objectives of the current study
The purpose of this study was to apply HFACS to discover types of operator error in Australian civil aviation accidents and compare these results with the larger US accident sample.
2 METHODOLOGY
2.1 Data sources
This study is based on analysis of all Australian accidents reported to the ATSB for the period 1 January 1993 to 31 December 2002. The US data for the same period were sourced from the Human Factors Analysis and Classification System (HFACS) databases provided by the Civil Aerospace Medical Institute, Federal Aviation Administration. This database contained both National Transportation Safety Board (NTSB) accident classifications and HFACS data for the period 1 January 1993 through to 31 December 2002.
Accident sample
For the Australian component of this study we extracted accidents from the ATSB aviation database that occurred over Australian territory and involved VH-registered, powered aircraft (both rotary and fixed wing). Excluded from the study were accidents involving sabotage, suicide and stolen or hijacked aircraft. These selection criteria were adopted from the original US HFACS studies and adapted where necessary to suit the Australian data and research purposes. Accidents meeting the same criteria described above were extracted from the US database.
To eliminate redundancy, only data from one of the aircraft involved in multi-aircraft collisions, such as mid-air or ground collisions, were included in the US database. The same approach was adopted with the Australian data.
Flying-hour data
Australian flying-hour data were provided by the Bureau of Transport and Regional Economics, Aviation Statistics section. The Bureau surveys aircraft owners listed on the Civil Aircraft Register once a year. The survey collects information on the total aircraft landings and flying hours by type of operation over the preceding six-month period. Australian flying-hour data were reorganised to match the US flying operation type, called Code of Federal Regulation (CFR) parts (see section 2.2 below). United States flying-hour data were sourced from the US Bureau of Transportation Statistics website.
2.2 Classification of flying operations
The US flying operation categories, rather than the Australian classifications, were used in this study to allow comparison between the Australian and US data sets. In addition to reclassifying flying-hour data, the US flying regulation for each accident aircraft was allocated as part of the coding process. These US flying regulation codes are briefly explained here.
Part 91 or general aviation describes the rules governing the operation of aircraft within the US not involved in regular passenger transport. General aviation usually involves flights operating for recreation, personal transport, business flying and training. This regulation also covers positioning or ferry flights of both larger aircraft and emergency medical services flights.
Part 121 refers to scheduled domestic airlines and cargo carriers that fly large transport category aircraft. In March 1997, the US definition of Part 121 operations changed from flights with 30 seats to 10 seats. Before March 1997, flights with more than 10 and less than 30 seats flew under Part 135.
Part 125 refers to large US-registered civil aircraft that can carry 20 or more passengers or a maximum payload capacity of 2,722 kg (6,000 lb) or more, but is not used to transport public passengers.
Part 133 covers helicopters flying with external loads only.
Part 135 covers both scheduled (commuter) and non-scheduled (on-demand) flights operating with smaller aircraft of nine or fewer passengers. The non-scheduled operations include flights arranged between the passengers and operator and cargo planes with a payload capacity of 3,402 kg (7,500 lb) or less.
Part 137 includes agricultural aircraft operations such as applying economic poison, fertiliser, plant seed and pest control. It covers any aerial applications directly affecting agricultural, horticultural or forest preservation activities but excludes the dispensing of live insects.
Public use refers to US public or government agencies operating public aircraft and can include aerial policing operations, medical transport, fire-fighting operations and other operations.
2.3 Coding methodology
Several pilots and one air traffic controller were recruited as coders and attended a threeday training program led by the developers of HFACS. Each of the coders was employed on the basis of significant aviation experience (eg. as a pilot or air traffic control operator), together with either academic experience or interest in aviation human factors.
Data compatibility between the US and Australia
During the preliminary work, it was identified that a more consistent application of HFACS with the US coding would be achieved if the Australian accidents were first reorganised into the same structure as that used by the NTSB. In this way, the same procedures used in the US studies could be applied to the Australian data. In the US, HFACS codes were applied to accident findings that were considered causal or contributory to the accident by the original investigation team and where the action was attributed to a person or organisation in the original NTSB coding. By applying the NTSB accident classification system to Australian accidents, a similar accident classification structure was achieved and causal and contributory factors were identified, along with the appropriate person code.
The system adopted by the Australian coders replicated, as closely as possible, the process used in the US where accidents are first coded according to the NTSB system and then coded with HFACS. The primary difference between the US and Australian methodology was that the same coders in Australia applied the NTSB taxonomy and HFACS in the same coding process while in the US these processes were performed by two separate agencies at different times.
An example of the application of NTSB codes and HFACS codes to one Australian accident involving multiple causal factors is presented in Table 1.
Table 1: Sample coding of one Australian accident with multiple causal factors
| Occurrence code | | Phase of | | Subject | | Modifier | Person code | Cause or Factor | |
|---|---|---|---|---|---|---|---|---|---|
| | | flight | | code | | code | | | |
| Hard Landing | | Landing - | Flare | | Improper | | Pilot in Command | Cause | Skill- |
| | | Flare/ | | | | | | | based |
| | | | | Flare | | | | | |
| | | Touchdown | | | | | | | error |
| | | | | Compensa- | Incorrect | | Pilot in Command | Factor | |
| | | | | tion For | | | | | |
| | | | | Wind | | | | | |
| | | | | Conditions | | | | | |
| | | | | Weather | Crosswind | | | Factor | |
| | | | | Condition | | | | | |
| | | | | Lack of | | | Pilot in Command | Factor | Physical/ |
| | | | | Total | | | | | mental |
| | | | | Experience | | | | | limitation |
| Nose Gear Collapsed | Landing - Flare/ Touchdown | | | Airport | Runway | | | State- ment of fact | |
| | | | | Facilities, | | | | | |
| | | | | Runway/ | | | | | |
| | | | | Landing | | | | | |
| | | | | Area | | | | | |
| | | | | Condition | | | | | |
The table should be interpreted by first reading the occurrence code as this describes the accident sequence. The phase of flight code refers to that part of the flight when the occurrence occurred. The subject codes further describe the accident by providing explanatory detail. The modifier code is an elaboration of the subject code. The person code identifies who performed the action described in the subject code and the cause/factor code indicates whether this action was considered causal or a contributing factor to the accident or simply a statement of fact about the accident. The HFACS code is applied to those subject codes that are attributed to a person and that were either causal or a contributing factor in the accident.
Advice and documentation were sought from the NTSB to achieve accuracy and consistency in applying the NTSB taxonomy. Ongoing support and clarification in the application of HFACS were also provided by Dr Shappell and Dr Wiegmann throughout the project.
2.4 Coding technique
Coders worked in pairs, with each pair combination changing daily. Each accident was first classified using the NTSB taxonomy and then HFACS. Both coders had to agree to both the NTSB codes and HFACS codes before the coding was considered complete. Any disagreements within the coding team were resolved between the pair, although they could seek advice from the senior ATSB coder and/or Dr Shappell.
Coders were instructed to rely on the evidence in the original accident report and not to 'read between the lines' when recoding against the NTSB taxonomy and applying HFACS.
2.5 Quality assurance process
Following completion of the coding, the first 25% of accidents coded were recoded to ensure consistency in the coding process.
The remaining 75% of accidents were reviewed by experienced teams of coders for accuracy in coding. If the review team felt that the accident was not classified appropriately, it was recoded by a new team.
Finally, a sample of completed accidents was sent to the developers of HFACS to review for consistency with the US application of HFACS. Accidents were reviewed and modified as required in response to feedback provided by Dr Shappell.
To quantify the degree of consistency between the Australian and US application of HFACS, a sample of 104 US accidents were independently coded by the Australian coding review team. A Cohen's Kappa value of 0.65 was calculated, indicating good agreement between the Australian and US application of HFACS (Altman, 1991).
1
2.6 Statistical analyses
Statistical analyses were conducted to identify statistically significant differences between selected variations in the Australian and US results and between Australian fatal and non-fatal accidents. The analyses involved calculating the percentage difference between two results and using confidence intervals to determine if this was statistically different.
A confidence interval provides a range within which a true difference is likely to lie (Diekhoff, 1992). To interpret the confidence intervals in this study, if the range between the upper and lower values includes zero, the two results are not statistically different (Davies, 2001).
For the comparisons between Australian and US results, a 99% confidence interval was selected to ensure the highest level of accuracy in identifying differences in the results. A 99% confidence interval was also chosen to address the high level of power resulting from the large number of accidents in the US sample. For the comparisons of Australian data only, where there were fewer accidents, a 95% confidence interval was selected. A 95% confidence interval indicates that we are 95% certain that the true score lies between the upper and lower values.
1 Cohen's Kappa measures the level of agreement between coders that corrects for any agreement that occurred by chance alone. The scale of kappa can range from 1.00 with perfect agreement to 0.00 where all agreements occurred by chance alone. A kappa value between 0.41 to 0.60 indicates moderate agreement. A kappa value between 0.61 to 0.80 indicates good agreement and a kappa value between 0.81 to 1.00 indicates very good agreement (Altman,1991).
3 ANALYSIS OF THE DATA
3.1 Comparison of Australian and US accidents and flying activities
Between 1993 and 2002, the ATSB recorded 2,025 2 aviation accidents involving a VHregistered powered aircraft, under authorised use, that occurred over Australian territory. There were 18,961 accidents recorded in the US with equivalent criteria. These data indicate that there were approximately 9 accidents in the US for every accident in Australia. Flying hours in the US were also appreciably higher, with approximately 16 hours flown in the US to every hour flown in Australia.
Broad measures of Australian and US aviation were compared to determine the validity of conducting further comparisons of the two countries' accident histories using HFACS.
Accidents by type of flying operation
Figure 2 shows the proportion of accidents that occur in different types of US flying operations, as defined in Section 2.2. In both Australia and the US, the greatest proportion of accidents occurred under general aviation (Part 91) activities, followed by on-demand and commuter operations (Part 135) and agricultural operations (Part 137), respectively. The relevant frequencies are included in Appendix C (Table C.1).
3.1.2 Flying hours by type of flying operation
Figure 3 and Table 2 present the proportion of flying hours by operation type for the US and Australia. More Australian flying hours were accrued in on-demand (Part 135, non-
2 Both Australian and US accident figures will differ from the official accident totals due to the criteria used to select accidents for this study (see Section 2.1 for the selection criteria). The sample of accidents used in this study does not include all reported accidents to ATSB or NTSB.
3.1.1
scheduled) and agricultural operations compared with the US. On the other hand, a greater proportion of US flying hours were accrued in general aviation (Part 91) and airline operations (Part 121).
Notes: These percentages refer to cumulative flight hours, 1993-2002
3.
Source for Australian data:
– See section 2.1
Sources for US data:
– US Bureau of Transportation Statistics:
http://www.bts.gov/publications/national_transportation_statistics/excel/table_02_09.xls http://www.bts.gov/publications/national_transportation_statistics/excel/table_02_10.xls
US Federal Aviation Administration:
http://www.faa.gov/data_statistics/aviation_data_statistics/general_aviation/CY2004/
(all websites accessible as of 28 August 2006).
3 Australian general aviation data comprise private, business, test and ferry, training, survey and photography, pipeline and powerline patrol, mustering, search and rescue, towing, other aerial work and half the ambulance hours.
In the Australian data, half of the ambulance hours are counted in general aviation and half are counted in on-demand (Part 135). This is to remain consistent with the US data where the flight to reach a patient is conducted under Part 91, but the flight back with a patient is conducted under Part 135.
US general aviation hours comprise personal, business, corporate, instructional, aerial observation, aerial other, other work, sightseeing, air medical (not covered under Part 135), public use and other.
It was assumed from the data that the on-demand Part 135 hours reported in the US General Aviation and Air Taxi Activity and Avionics (GAATAA) survey were mutually exclusive of the US commuter air carrier safety data.
Aerial agriculture hours comprise aerial application hours only and not any other activities related to agriculture such as spotting or pest control.
In March 1997, the US definition of Part 121 operations changed from flights with 30 seats to 10 seats. Before March 1997, flights with more than 10 flew under Part 135.
Table 2: Number of flying hours by type of flying operation
| Flying operation (Code of Federal Regulations part) | Frequency, millions (and %) | |
|---|---|---|
| | Australia | US |
3.1.3 Accident occurrence and phase of flight
Each accident in Australia and the US was coded into a sequence of hazardous events, described here as 'occurrences'. The full list of occurrences is provided in Appendix B. As most accidents comprise more than one occurrence, there is no one-to-one relationship between occurrences and accidents. Figure 4 indicates that in both Australia and the US in-flight collisions 4 were the most prevalent occurrence, followed by accidents involving loss of power, and loss of control in flight, respectively.
To reduce the amount of information to one occurrence per accident, and hence provide a substitute for an accident type, the first occurrence in the accident sequence was analysed. Figure 5 compares the first occurrence only for both Australian and US accidents. This figure shows that the top three occurrences in Australian accidents are an in-flight collision, loss of power, and airframe/propeller/rotor malfunction, respectively. The highest proportion of US accidents begins with a loss of power, followed by inflight collision, and loss of control in flight, respectively. For details of the frequency of these occurrences, see Appendix C (Tables C.2 and C.3).
Figure 5 also highlights some other interesting findings. For instance, there is a higher proportion of low severity, property damage events such as gear collapse, hard landings, wheels-up landings and on-ground collisions 5 in Australian accidents. Also of interest is the smaller proportion of Australian accidents with in-flight/on-ground encounter with weather relative to the US. This seems to confirm the existing view that there are fewer weather hazards in the Australian flying environment than in the US environment.
Each occurrence in the accident sequence was also allocated to a specific phase of flight (see Appendix B for details on the phase of operation). Accidents by phase of flight groups were compared (Figure 6), as were phase of flight for the first occurrence (Figure 7). The relevant frequencies are included in Appendix C (Tables C.4 and C.5).
5 This category includes collisions between the aircraft and the terrain or the aircraft and an object while on the ground.
The highest proportion of Australian accidents occurred in the landing phase of flight, followed by manoeuvring and then takeoff. A large proportion of the landing accidents involved property damage only, or resulted in minor injury. The manoeuvring accidents predominantly occurred while performing agricultural operations or aerial mustering. The highest proportion of US accidents also occurred in the landing phase, with takeoff and descent the next two most common phases for occurrences, respectively.
When considering only the phase of flight at the time of the first occurrence, landing, manoeuvring and takeoff remain the phases where the highest proportion of Australian accidents occur (see Figure 7). The pattern for the US is also broadly unchanged, although analysis by first occurrence results in fewer accidents attributed to descent, but more attributed to the cruise phase.
The initial comparison of types of flying operation, accident types and the phase of flight where the accident occurred shows that Australia and the US are remarkably similar.
Where differences exist, they are likely to be influenced by the differences in the relative proportions of flying hours for each category of operation. Nevertheless, the obvious similarity between the patterns indicated a more detailed comparison was warranted.
3.2 HFACS
The HFACS taxonomy classifies the human factors that contribute to accidents at all the four levels of the aviation system comprising organisational influences, unsafe supervision, preconditions for unsafe acts and the unsafe acts of operators (Figure 1). This study was primarily concerned with the subset of accidents where there was at least one aircrew-related unsafe act, and so focuses on the level of unsafe acts of operators.
3.2.1 Accidents with at least one aircrew unsafe act
Over the period studied, 69% of accidents in Australia (1,404 out of 2,025) included at least one unsafe act by aircrew, compared with 72% (13,700 6 out of 18,961) of accidents in the US. The remainder involved mechanical failure or no identifiable aircrew error.
While accidents frequently had more than one instance of the same unsafe act (eg skillbased error) each category was only counted once per accident. Counting each group once prevents overrepresentation of some error groups and allows us to determine how many accidents were associated with each category of unsafe act.
Figure 8 presents the proportion of accidents associated with each unsafe act group for both Australian and US accidents.
Skill-based errors were associated with 84% of the Australian accident sample, followed by decision errors (33%), violations (8%) and perceptual errors (6%). The Australian and US results were similar, with the same rank order of unsafe act categories.
A higher proportion of Australian accidents were associated with skill-based errors and decision errors, while the US had a higher proportion of accidents associated with violations (Figure 8 and Table 3). Seven per cent more Australian accidents were associated with skill-based error compared with US accidents (84% compared with
6 A small number of US accidents were excluded due to missing data.
77%). While this difference is statistically significant, the practical importance of this difference appears limited. Violations were significantly less frequent in Australian accidents. There were no significant differences between the proportion of Australian accidents associated with decision or perceptual errors compared with the US results.
Table 3: Accidents associated with each HFACS unsafe act
| Unsafe act | Australia Frequency (and %) | US Frequency (and %) | % difference | Lower 99% confidence interval | Upper 99% confidence interval |
|---|---|---|---|---|---|
| Skill-based error Decision error Perceptual error Violation Sample size | 1180 (84) 464 (33) 85 (6.1) 108 7.7) 1404 | 10,589 (77.3) 3996 (29.2) 899 (6.6) 1767 (12.9) 13,700 | 7 4 –1 –5 | 4 0 -2 -7 | 9 7 1 –3 |
Notes: indicates statistically significant result at the 99% confidence interval.
The proportions will not sum to 100 as one accident can be associated with multiple unsafe acts.
The data were also examined to see if the results changed when considering all accidents (that is including accidents with mechanical failure and no aircrew errors) and not just those with an aircrew unsafe act. The results showed that the pattern of results did not change when analysing all accidents, but as expected, the actual percentages were lower. The increase in total accident numbers (reflected in a larger denominator) reduced the value of the percentages for each category of unsafe act. The largest percentage of Australian and US accidents were associated with skill-based errors, followed by decision errors, violations and perceptual errors, respectively.
Examples of errors and violations in Australian accidents
Examples of typical errors and violations recorded in Australian accidents were:
Skill-based errors
* landing errors, including problems with flare, alignment, touchdown point, descent rate and distance/altitude and speed
* not maintaining physical clearance or visual lookout
* losing directional control on the ground
* not maintaining airspeed.
Decision errors
* selecting unsuitable terrain for landing/takeoff/taxiing
* improper pre-flight planning
* poor in flight planning or decision
* performing a low-altitude flight manoeuvre.
Perceptual errors
* misjudging physical clearance
* losing aircraft control
* problems with visual/aural perception
* misjudging altitude/distance/speed.
Violations
*
not following procedures or directives (standard operating procedures)
* visual flight rules into instrument meteorological conditions
* operating an aircraft without proper endorsement or certification
* operating an aircraft outside its weight and balance limits
* performing low-altitude flight manoeuvres.
3.2.2 Trends in aircrew unsafe acts
Trends in aircrew unsafe acts in Australian and US accidents are presented in Figures 9 and 10, respectively. The frequency of accidents associated with each type of unsafe act, for each year, is presented in Appendix C (Table C.6).
Over the 10 year period covered by the study, both the numbers of reported aircrew errors (see Appendix C, Table C.6) and accidents reported to the ATSB have reduced (data not shown). However, despite fluctuations, the proportion of accidents associated with a skill-based error has not changed significantly over time, χ 2 (1, N=1,404) = 1.82, p = 0.18. The proportion of decision errors identified in Australian accidents, however, has reduced over time χ 2 (1, N=1,404) = 8.88, p = 0.003.
There were insufficient Australian accident data to determine trends for both violations and perceptual errors.
The graph of the US accidents (Figure 10) presents a more stable picture for all error groups and violations.
3.2.3 Unsafe acts by type of flying operation
The distribution of aircrew errors for each of the flying operation categories was analysed to determine if any type of error was disproportionately high in a particular category of flying operation. To determine if one flying operation had a greater share of unsafe acts the percentage of accidents associated with each unsafe act category was compared with the percentage of accidents that occurred in that flying operation type (Tables 4 and 5). In addition to analysing the distribution of unsafe acts across flying operation type, the distribution of unsafe acts within flying operations was also analysed (Tables 6 and 7). The dispersal of unsafe acts within flying categories tells us whether the same unsafe acts are occurring, to the same degree, in the different flying operations.
The number and percentage of unsafe acts by flying operation is presented for Australia and the US in Tables 4 and 5 respectively. See Figure 2 for the percentage of accidents that occurred in each flying operation.
Table 4: Unsafe act group by type of flying operation, Australian accidents
| Flying operation (regulation part) | Skill-based error Frequency (and %) | Decision error Frequency (and %) | Perceptual error Frequency (and %) | Violation Frequency (and %) |
|---|---|---|---|---|
| General aviation (Part 91) Air carrier (Part 121) Large civil aircraft (Part 125) Rotorcraft with external load (Part 133) On-demand & commuter (Part 135) Agricultural (Part 137) Public use Total | 861 (73) 2 (0.2) 0 (0) 2 (0.2) 139 (11.8) 162 (13.7) 14 (1.2) 1180 | 298 (64.2) 1 (0.2) 0 (0) 3 (0.6) 95 (20.4) 58 (12.5) 9 (1.9) 464 | 51 (60) 1 (1.2) 0 (0) 0 (0) 18 (21.2) 13 (15.3) 2 (2.4) 85 | 73 (67.6) 1 (0.9) 0 (0) 2 (1.9) 29 (26.9) 2 (1.9) 1 (0.9) 108 |
Table 5: Unsafe act group by type of flying operation, US accidents
Since the greatest number of Australian aviation accidents occur when flying general aviation, on-demand/commuter or agricultural operations it is not surprising that these operations are associated with the highest proportion of unsafe acts. There were, however, an unexpectedly large number of errors and violations in Australian ondemand/commuter operations. 7 The US data show that unsafe acts are predominantly associated with general aviation operations.
The following tables (Tables 6 and 7) show the frequency and percentage of each type of error within three prominent operational categories. This analysis was restricted to the three types of operation with the highest number of errors: general aviation, ondemand/commuter and agricultural operations.
Table 6: Percentage of unsafe acts within operational category, Australia
| Flying operation | Skill- based error Frequency (and %) | Decision error Frequency (and %) | Perceptual error Frequency (and %) | Violation Frequency (and %) |
|---|---|---|---|---|
| General aviation (Part 91) | 861 (86.4) | 298 (29.9) | 51 (5.1) | 73 (6.2) |
| On-demand & commuter (Part 135) | 139 (72.0) | 95 (49.2) | 18 (9.3) | 29 (15.0) |
| Agricultural (Part 137) | 162 (84.4) | 58 (30.2) | 13 (6.8) | 2 (1.0) |
7 These errors and violations were predominantly associated with the on-demand category.
Table 7: Percentage of unsafe acts within operational category, US
| Flying operation | Skill- based error Frequency (and %) | Decision error Frequency (and %) | Perceptual error Frequency (and %) | Violation Frequency (and %) |
|---|---|---|---|---|
| General aviation (Part 91) | 9485 (77.9) | 3542 (29.1) | 815 (6.7) | 1530 (12.6) |
| On-demand & commuter (Part 135) | 369 (64.1) | 224 (38.9) | 38 (6.6) | 153 (26.6) |
| Agricultural (Part 137) | 593 (81.1) | 143 (19.6) | 34 (4.7) | 50 (6.8) |
The tables show that the pattern of errors within each operational category was broadly similar for Australian and US accidents, albeit with small deviations. Notably the higher percentage of Australian aerial agriculture operations associated with a decision error relative to the US results, and the fewer violations observed in Australian accidents for all three categories analysed.
General aviation (Part 91)
Slightly more than 40% of all flying hours in Australia were conducted in general aviation operations, but this category accounted for nearly 70% of Australian accidents (Figures 2 and 3). As a consequence, general aviation was responsible for the largest number of unsafe acts. The proportion of accidents associated with decision errors, perceptual errors and violations were consistent with the percentage of accidents that occurred in general aviation operations (Table 4). Within the general aviation category, around two thirds of all errors are skill-based, with decision errors accounting for nearly one quarter of errors (Table 6).
General aviation accidents in the US were associated with a greater proportion of skillbased errors, decision errors and perceptual errors than Australian general aviation accidents. The pattern of errors within general aviation in the US and Australia was similar.
On-demand and commuter operations (Part 135)
On-demand and commuter operations contribute 17.8% of all flying hours in Australia, and were involved in 17.4% of all accidents during the period studied (16.5% for ondemand and 0.9% for commuter). While Part 135 operations contributed 11.8% of all accidents associated with a skill-based error, they contributed more than a quarter of all accidents with a violation and around one-fifth of all accidents associated with decision and perceptual errors. A similar pattern was found using US data, although the proportion of these errors was lower. Less than 5% of all flying hours in the US are conducted under Part 135.
Just under half of the errors within the on-demand/commuter category were skill based. Accordingly, decision errors and violations appeared more prominent compared with other operational categories. Interestingly, the data for the US shows violations accounted for nearly a fifth of unsafe acts in this category (Table 7).
Agricultural operations (Part 137)
Aerial agriculture accounts for 11.5% of all Australian accidents, but 13.7% of all accidents with a skill-based error and 15% of all accidents with a perceptual error. These operations contributed the second highest number of skill-based accidents and third highest perceptual error accidents. All the unsafe act groups were underrepresented with respect to the total proportion of accidents in US agricultural operations.
The pattern of errors within agricultural operations was very similar to the pattern found in general aviation. Violations identified in Australian agricultural operations were extremely low. This might be because HFACS only codes for violations when they are known to be deliberate, and the data rarely supported that finding.
3.2.4 Fatal and non-fatal accidents and aircrew unsafe acts
The data were analysed to determine if aircrew errors varied with the severity of the accident. In Australia between 1993 and 2002, there were 156 fatal accidents and 1,248 non-fatal accidents with at least one unsafe act. In the US over the same period there were 2,912 fatal accidents and 10,788 non-fatal accidents with at least one aircrew unsafe act. For this accident sample, 11% of the Australian accidents resulted in a fatality, but of the US accidents, 21% resulted in a fatality. Tables 8 and 9 present the number and percentages of fatal and non-fatal accidents, respectively, associated with each category of unsafe act. Figure 11 shows the comparison between Australian and US results in a graphical form.
Table 8: Comparison of Australian and US fatal accidents by unsafe act
denotes a statistically significant difference
Table 9: Comparison of Australian and US non-fatal accidents by unsafe act
denotes a statistically significant difference
Comparing Australian and US fatal accidents
Table 8 shows that the only statistically significant difference between Australian and US fatal accidents is the higher percentage of Australian fatal accidents associated with a decision error (see also Figure 11).
Comparing Australian and US non-fatal accidents
Significantly more Australian non-fatal accidents were associated with skill-based errors compared to US non-fatal accidents but fewer Australian non-fatal accidents were associated with violations (Table 9; see also Figure 11).
Comparing Australian fatal with non-fatal accidents
Compared with non-fatal, fatal accidents were associated with more decision, perceptual errors and violations but fewer skill-based errors (see Figure 11 and Table 10). All of the differences between the percentage of errors and violations for fatal and non-fatal Australian accidents were statistically significant.
Table 10: Comparison of Australian fatal and non-fatal accidents by unsafe act
| Unsafe act | Fatal Frequency (and %) | Non-fatal Frequency (and %) | % difference | Lower 95% confidence interval | Upper 95% confidence interval |
|---|---|---|---|---|---|
| Skill-based error Decision error Perceptual error Violation Total | 120 (76.9) 67 (42.9) 21 (13.5) 50 (32.1) 156 | 1060 (84.9) 397 (31.8) 64 (5.1) 58 (4.6) 1248 | -8 11 8 27 | -15 3 3 20 | -1 19 14 35 |
denotes a statistically significant difference.
Comparing US fatal with non-fatal accidents
Similar to the Australian results, the US fatal accidents were associated with more violations but fewer skill-based errors. Unlike the Australian results, decision errors were not different for fatal and non-fatal accidents.
While the distribution of errors and violations associated with fatal accidents is similar to the pattern for accidents generally, it is noteworthy that a higher proportion of fatal accidents in both Australia and the US were coded with a violation.
3.2.5 Precipitating error
Australian accidents were analysed to identify the unsafe act that precipitated the accident. This was conducted to determine if any particular category of unsafe act was more likely to induce an accident.
To identify the precipitating unsafe act in the Australian data, coders were asked to identify which unsafe act, if any, initiated the accident. That is, the aircrew action that initiated the accident sequence and from which the accident became inevitable. Using this approach, a precondition to the accident, such as poor weather, could not be considered the precipitating act. The results are presented in Figure 12. The frequency of accidents for each group is included in Appendix C (Table C.7).
The pattern of results for precipitating errors was similar to the analysis of all unsafe acts. The majority of accidents were associated with a skill-based error (75.2%) followed by decision error (19.6%) perceptual error (3.4%) and violation (1.8%). The most common precipitating errors were skill-based errors such as not maintaining physical clearance or visual lookout, losing directional control, improper flare and poor aircraft handling.
The percentages of accidents associated with each type of unsafe act are lower than the overall analysis and sum to 100 as there can only be one precipitating error. One point of deviation from the overall results was the low number of violations as the precipitating act. It appears that some violation types did not inevitably lead to an accident. For example violations such as not following procedures or directives and operating an aircraft without proper endorsement or certification were not judged to be the precipitating error in Australian accidents.
4 DISCUSSION
The two objectives of this study were to systematically analyse the types of aircrewrelated unsafe acts occurring in Australian accidents and to compare the Australian results with the larger sample of US accidents in order to learn more about the underlying human causes of aviation accidents.
The results have identified the unsafe acts involved in Australian aviation accidents and how Australian and US accidents compared using the NTSB taxonomy and HFACS. Finally, the utility of HFACS for developing new strategies to improve aviation safety is discussed.
4.1 What does the application of HFACS tell us about Australian aviation?
Sixty nine per cent of Australian accidents involved at least one aircrew unsafe act. The most prevalent category of unsafe act in Australian accidents was skill-based errors followed by decision errors, violations and perceptual errors, respectively. These findings are consistent with similar international studies (Gaur, 2005; Markou et al., 2006).
Skill-based errors were disproportionately high in both general aviation (private/business operations) and agricultural operations. There may be several reasons for this. Explanations might include the flying experience (both in terms of total experience and currency) of general aviation pilots (Wiegmann et al., 2005), and in the case of aerial agriculture operations, cockpit distractions interfering with the monitoring of flight parameters such as airspeed and altitude. Both of these categories are predominantly single-pilot operations, where the skills of the lone pilot are the last line of defence to prevent an accident. Regular passenger transport operations on the other hand are multicrew operations, and errors of any type were rare. The low error rate is reflected in the exceptional safety record for this category of operations.
The trend data indicated that the proportion of accidents in Australia with a skill-based error has remained steady over time, but the proportion of accidents associated with decision errors has decreased. It is unclear what lies behind these findings. These results suggest that there is considerable scope to improve accident rates in private and business operations by addressing the underlying causes associated with skill-based errors. To further understand this issue it would be important to develop a clearer understanding of which particular skills are failing. Based on the application of HFACS presented here it is difficult to determine where efforts to enhance skills would receive most reward. In large part that may be due to the diverse range of errors that fit this category. Perhaps one of the key challenges with the application of HFACS is that so many errors are categorised as skill-based that without more detailed analysis, the ability to develop evidence-based strategies may be limited. To that end it would be useful to analyse this error category further to more clearly understand the types of skill sets that need improving.
This study also found that the severity of injury varied with the type of aircrew error associated with the accident. Violations, decision errors and perceptual errors were more common in fatal accidents. Violations were identified in 32% of fatal accidents, but less than 5% of non-fatal accidents. The relationship between violations and fatal accidents is perhaps not surprising given that two of the more common types of violations in fatal
accidents involved VFR rated pilots flying into IMC and low-altitude flight manoeuvres. An earlier ATSB research paper (Batt & O'Hare, 2005) found that 76% of VFR into IMC accidents resulted in a fatality. Loss of control in flight during unnecessary lowlevel flight is also more likely to result in a fatal accident (Australian Transport Safety Bureau, 2004).
While the results of the analysis conducted here show a link between both decision errors and violations with fatal accidents, it should also be recognised that skill-based errors, while proportionately lower in fatal accidents compared with non-fatal accidents, were still very high (76.9% and 84.9% respectively). It is unclear whether the combination of error types, or a combination of violations and errors, is more important than a particular type of error or violation alone. The findings of this study suggest that the fatal accident rate might be reduced if decision-making can be improved, and if violations are reduced. However, the interaction between errors also needs to be understood more fully in order to develop a better understanding of the relationship between error types and the severity of the accident.
A study of the errors deemed to have made the accident inevitable (identified as the precipitating error) might provide some evidence that the way errors combine is a more important determinant of the severity of the accident. While the analysis presented here indicates that more violations and decision errors accompany fatal accidents, the assessments based on the precipitating error indicate that these errors were less commonly associated with the point at which the accident became inevitable. One explanation for this is that decision errors and/or violations act in concert with other errors (usually skill-based errors), and when they do, the accident is more likely to result in fatalities. In other words, a more severe accident may result if the pilot's skills are unable to cope with, or compensate for, a preceding violation or decision error. Hence, an initial error or violation may result in a more serious outcome if it is compounded by a subsequent error.
4.2 How do Australia and the US compare?
A general overview of Australian and US accidents
The comparison of Australian and US data covered the period 1992 to 2002. The study examined 2,025 accidents in Australia, and 18,961 in the US. The highest proportion of activity for both countries was in general aviation (Part 91), followed by air carrier operations (Part 121). More than half of all flights in the US were conducted under Part 91 operations, while just under half of all flights in Australia were flown under this regulation category. Australia had considerably more on-demand operations (Part 135 non-scheduled) than the US (17.8% and 4.4% respectively), and this category had a correspondingly higher accident rate (17.4% compared with 4.3%).
Although the number of accidents is considerably higher in the US, their accident rate appears to be much lower. Activity data for the US records 443 million flight hours over this period giving a rate of 4.3 accidents per 100,000 hours, whereas Australia recorded 27.2 million flight hours and 7.4 accidents per 100,000 hours. The difference is considerable and is not easily explained. In 2005 the NTSB published a report examining the methodology used in the US to estimate activity data for general aviation and on-demand operations. The report found that the survey methodology used to develop estimates of annual hours flown in these categories is likely to be inaccurate and may not have provided a reliable basis for estimating accident rate trends in the US
(National Transportation Safety Board, 2005). Hence, a comparison of accident rates in Australia and the US based on hours flown may be misleading, and should be treated with some caution.
Nearly 90% of US accidents involved general aviation (Part 91) flights, while in Australia just under 70% of accidents were in general aviation (Part 91). Accidents in other categories were either infrequent or rare.
The phase of flight where the accident occurred was very similar for both countries. The landing was the most common phase of flight for accidents, with take-off and manoeuvring the next most common stages of flight for Australian accidents. Australia had a higher proportion of accidents during landing and during manoeuvring compared with the US, and the US had a higher proportion of accidents attributed to cruise and descent phases of flight.
An overview of Australian and US accidents using HFACS
Despite the apparent difference in accident rates, the proportion of accidents that involved an unsafe act was similar: of the 2,025 accidents in Australia, 1,404 (69%) were identified as involving an unsafe act while 13,700 accidents (72%) in the US involved an unsafe act.
Moreover, the pattern of results between US and Australian accidents was remarkably similar. The rank order of unsafe act categories was the same in the accident sets for both countries. Skill-based errors were by far the most common type of aircrew error followed by decision errors, violations and perceptual errors, in that order.
Differences between Australian and US results included a higher percentage of skillbased errors in Australian accidents but a significantly higher number of US accidents were associated with a violation.
The percentage of skill-based errors was high for both Australian and US accidents and we regard the difference (84% compared to 77%) to be minor and not of practical importance. Violations on the other hand, were found in nearly twice as many of the US accidents (12.9% of US accidents but only 7.7% of Australian accidents). The impact of this difference is limited by the potential underreporting of violations in the Australian data. Insufficient evidence in the accident reports to code a violation was common. For example, evidence that the pilot intentionally flew with insufficient fuel was needed to code a fuel reserve violation. When only fatal accidents are considered, for which the most detailed investigation information is available, the percentage of US and Australian accidents associated with a violation is similar.
There was also a significant difference between the number of fatal and non-fatal Australian accidents associated with decision errors and perceptual errors, which was not the case for US accidents. Fatal aviation accidents in Australia were associated with more decision errors than non-fatal accidents (43% of fatal accidents in Australia were associated with a decision error while 32% of non-fatal accidents involved a decision error). For US accidents, 29.3% of fatal accidents and 29.2% of non-fatal accidents were associated with decision errors.
Consistent with the Australian results, the association of decision errors with fatal accidents has been demonstrated in other studies (O'Hare et al., 1994; Wiegmann & Shappell, 1997). O'Hare et al. (1994) found decision errors were associated with 30.5% of non-fatal accidents but 62.5% of fatal accidents. Wiegmann and Shappell (1997), using a classification scheme developed prior to HFACS, found that judgement errors (decision-making, goal setting and strategy selection errors) were associated more with major accidents but procedural and response execution errors (that is, skill-based errors) were more likely to occur with minor accidents. It is not clear why the Australian and US HFACS results differ for decision errors, but this result merits further study.
The distribution of unsafe acts across flying operation type shows that a reasonably high proportion of all violations, decision errors and perceptual errors occurred in charter operations (known as 'on-demand' in the US). This is a consequence of the relatively high proportion of aviation activity that occurs in this category of flying in Australia. The pattern of errors within on-demand/commuter was similar to the pattern found in the US. A higher percentage of decision errors was observed in Australian accidents but fewer violations relative to the US on-demand/commuter category. In addition the data for the US indicates that while violations in on-demand are relatively infrequent as a proportion of all violations, they are a relatively prominent type of error within this category of operation.
While this study suggested that the US accident rate is approximately half that of the Australian rate, the proportion of accidents that involved fatalities in the US is nearly twice that of Australia. Of the 13,700 accidents in the US classified by HFACS, 2,912 (or 21%) resulted in a fatal injury. In contrast, Australia recorded only 156 fatal accidents from among the 1,404 accidents analysed – equivalent to 11% of accidents. Other studies have shown the fatal accident rate (determined as a proportion of flying hours) between the two countries is comparable (Australian Transport Safety Bureau, 2006). The difference in the lethality of Australian and US accidents is difficult to explain, and is possibly the result of a combination of factors, including the error type and phase of flight in which the accident occurred. It may also be that Australia classifies more low severity occurrences as accidents than the US, meaning Australia has apparently more accidents, but a lower proportion are fatal.
4.3 What is the utility of HFACS?
The results demonstrated that HFACS can be used to systematically analyse the types of aircrew-related unsafe acts in Australian aviation accidents and provide a valid comparison with the US accident data.
The Human Factors Analysis and Classification System proved to be a relatively simple classification system to learn and apply. It also allowed us to organise and analyse our lower-severity crashes, where limited accident data were available.
The pattern of Australian unsafe acts was similar to the US and similar to the known studies where HFACS was retrospectively applied to aviation accident data (Gaur, 2005; Li & Harris, 2005; Markou et al., 2006; Shappell & Wiegmann, 2004). Skill-based errors were associated with the highest number of accidents ranging from 43% to 84%. Given the consistently high frequency of skill-based errors, it appears that the skill-based error category tends to capture more of the contributory human factors in an accident. That is probably unsurprising as aviation is largely a skill-based activity, particularly in general aviation where automated systems are uncommon.
The application of HFACS did not provide sufficiently detailed information on the type of behaviours that characterise each category of aircrew unsafe acts. Apart from identifying the predominance of skill-based errors in accidents, there was limited information to enable us to identify which kinds of skills were failing. This information would be needed to determine whether specific skills sets needed attention and would also assist with the development of targeted strategies to address common deficiencies. Of more interest perhaps, is the suggestion that the interaction of errors and violations is more important for accounting for the severity of an accident. A deeper appreciation of the way errors might work in concert may provide more meaningful insights than the study of each error type in isolation.
In this report, the NTSB accident subject codes were used as a substitute for identifying the type of behaviours that characterise each category of aircrew unsafe acts. But since this was not the taxonomy's primary purpose, these codes were not ideal for the task. The ATSB is currently developing a new framework to assist and enhance investigation analysis. The Safety Investigation Information Management System (SIIMS) is intended to offer improved methodology to identify and understand the role of safety factors – events that increase the risk to safety. Data from earlier investigations will also be recoded to comply with the SIIMS framework. This new system may offer some advantages over the application of HFACS to accident data. A comparison between the insights available from SIIMS and those from HFACS would be worthwhile.
In summary, HFACS enabled a comprehensive analysis of the human errors contributing to Australian aviation accidents and comparison with US accidents. The application of HFACS identified the most common type of unsafe act but on its own, and at the level of 'unsafe acts of the operator', did not provide sufficient insights to suggest specific strategies to enhance aviation safety.
5 CONCLUSIONS
The application of HFACS to Australian accident data has provided a new perspective to consider the contribution of unsafe acts to aviation accidents. The study has confirmed previous studies conducted elsewhere that skill-based errors are more common than any other type of error or violation. Skill-based errors were also the most common error type irrespective of the severity of the accident. This finding suggests that improving skills, especially among general aviation pilots, should make a positive contribution to the overall accident rate.
However, it also appears that decision errors and violations become more important factors for fatal accidents. Improvements in aeronautical decision-making and the modification of risk-taking behaviour remain important components of any strategy to reduce the rate of fatal accidents.
Overall, while some differences were found in the comparison between the patterns of Australian and US accidents, it appears that many of the human factors issues associated with accidents are the same for both countries. Any new initiatives that can reduce accident rates in one country are likely to be equally effective if applied to the other. However, specific strategies are difficult to develop based on the results of HFACS analysis at the level of 'unsafe acts of the operator' alone. There was also no clear basis for the much higher lethality of US accidents compared with Australia. The relative frequency of errors and violations alone does not explain the difference.
Based on the findings presented here, a further study is warranted to provide a more detailed understanding of the specific sets of skills represented within this error category. Moreover, the interaction between different error types, or error types and violations, would need to be understood better. While decision errors and violations are more prominent in fatal accidents, the frequency of skill-based errors remains very high for these accidents and so are likely to play an important role in determining the severity of an accident.
6 APPENDIXES
Appendix A Description of the Human Factors Analysis and Classification System (HFACS)
Adapted from Shappell (2005). The adaptation involved changing the language to Australian English.
Figure A.1: The HFACS framework
Errors
UNSAFE
ACTS
Errors
Perceptual
Errors
Skill-Based
Errors
Decision
Errors
Exceptional
Routine
Violations
Inadequate
Supervision
Planned
Inappropriate
Operations
Failed to
Correct
Problem
Supervisory
Violations
UNSAFE
SUPERVISION
Resource
Management
Organizational
Climate
Operational
Process
ORGANIZATIONAL
INFLUENCES
PRECONDITIONS
FOR
UNSAFE ACTS
Condition of
Operators
Physical/
Mental
Limitations
Adverse
Mental
States
Technological
Environment
Physical
Environment
Personal
Readiness
Crew Resource
Management
Personnel
Factors
Adverse
Physiological
States
Environmental
Factors
Unsafe acts of operators
The unsafe acts of operators (aircrew) can be loosely classified into one of two categories: errors and violations (Reason, 1990). While both are common within most settings, they differ markedly when the rules and regulations of an organisation are considered. That is, while errors represent authorised behaviour that fails to meet the desired outcome, violations refer to the wilful disregard of the rules and regulations. It is within these two overarching categories that HFACS describes three types of errors (decision, skill-based, and perceptual) and two types of violations (routine and exceptional).
Errors
Decision errors. One of the more common error forms, decision errors represent conscious, goal-intended behaviour that proceeds as designed, yet the plan proves inadequate or inappropriate for the situation. Often referred to as honest mistakes, these errors typically manifest as poorly executed procedures, improper choices, or simply the misinterpretation and/or misuse of relevant information.
Skill-based errors. In contrast to decision errors, the second error form, skill-based errors, occurs with little or no conscious thought. Indeed, just as decision errors can be thought of as 'thinking' errors, skill-based errors can be thought of as 'doing' errors. For instance, little thought goes into turning one's steering wheel or shifting gears in an automobile. Likewise, basic flight skills such as stick and rudder movements and visual scanning refer more to how one does something rather than where one is going or why. The difficulty with these highly practiced and seemingly automatic behaviours is that they are particularly susceptible to attention and/or memory failures. As a result, skillbased errors frequently appear as the breakdown in visual scan patterns, inadvertent activation/deactivation of switches, forgotten intentions, and omitted items in checklists. Even the manner (or skill) with which one flies an aircraft (aggressive, tentative, or controlled) can affect safety.
Perceptual errors. While decision and skill-based errors have dominated most accident databases and have, therefore, been included in most error frameworks, the third and final error form, perceptual errors, has received comparatively less attention. No less important, these 'perceiving' errors arise when sensory input is degraded, or 'unusual' as is often the case when flying at night, in bad weather, or in other visually impoverished environments. Faced with acting on imperfect or incomplete information, aircrew run the risk of misjudging distances, altitude, and descent rates, as well as responding incorrectly to a variety of visual/vestibular illusions.
Violations
Routine violations. Although there are many ways to distinguish between types of violations, two distinct forms have been identified based on their aetiology. The first, routine violations, tends to be habitual by nature and is often enabled by a system of supervision and management that tolerates such departures from the rules (Reason, 1990). Often referred to as 'bending the rules', the classic example is that of the individual who drives their automobile consistently 5–10 mph faster than allowed by law. While clearly against the law, the behaviour is, in effect, sanctioned by local authorities (police) who often will not enforce the law until speeds in excess of 10 mph over the posted limit are observed.
Exceptional violations. These types of violations, on the other hand, are isolated departures from authority, neither typical of the individual nor condoned by management. For example, while authorities might condone driving 65 in a 55 mph zone, driving 105 mph in a 55 mph zone would almost certainly result in a speeding ticket. It is important to note that, while most exceptional violations are appalling, they are not considered 'exceptional' because of their extreme nature. Rather, they are regarded as exceptional because they are neither typical of the individual nor condoned by authority.
Preconditions for unsafe acts
Simply focusing on unsafe acts, however, is like focusing on a patient's symptoms without understanding the underlying disease state that caused it. As such, investigators must dig deeper into the preconditions for unsafe acts. Within HFACS, three major subdivisions are described: 1) condition of the operator; 2) personnel factors; and 3) environmental factors.
Condition of operators
Adverse mental states. Being prepared mentally is critical in nearly every endeavour; perhaps it is even more so in aviation. With this in mind, the first of three categories, adverse mental states, was created to account for those mental conditions that adversely affect performance and contribute to unsafe acts. Principal among these are the loss of situational awareness, mental fatigue, circadian dysrhythmia, and pernicious attitudes such as overconfidence, complacency, and misplaced motivation.
Adverse physiological states. Equally important, however, are those adverse physiological states that preclude the safe conduct of flight. Particularly important to aviation are conditions such as spatial disorientation, visual illusions, hypoxia, illness, intoxication, and a whole host of pharmacological and medical abnormalities known to affect performance. It is important to understand that conditions such as spatial disorientation are physiological states that cannot be turned on or off — they just exist. As a result, these adverse physiological states often lead to the commission of unsafe acts like perceptual errors. For instance, it is not uncommon in aviation for a pilot to become spatially disoriented (adverse physiological state) and subsequently misjudge the aircraft's pitch or attitude (perceptual error), resulting in a loss of control and/or collision with the terrain.
Physical and/or mental limitations. The third and final category of substandard conditions, physical/mental limitations, includes those instances when necessary sensory information is either unavailable, or if available, individuals simply do not have the aptitude, skill, or time to safely deal with it. In aviation, the former often includes not seeing other aircraft or obstacles due to the size and/or contrast of the object in the visual field. Likewise, there are instances when an individual simply may not possess the necessary aptitude, physical ability, or proficiency to operate safely. After all, just as not everyone can play linebacker for their favourite professional football team or be a concert pianist, not everyone has the aptitude or physical attributes necessary to fly aircraft.
Personnel factors
Often things that we do to ourselves will lead to undesirable conditions and unsafe acts, as described above. Referred to as personnel factors, these preconditions have been divided into two general categories: crew resource management and personal readiness.
Crew resource management. It is not hard to imagine that when all members of the crew are not acting in a coordinated manner, confusion (adverse mental state) and poor decisions in the cockpit can ensue. Crew resource mismanagement, as it is referred to here, includes the failures of both inter- and intra-cockpit communication, as well as communication with ATC and other ground personnel. This category also includes those instances when crew members do not work together as a team, or when individuals directly responsible for the conduct of operations fail to coordinate activities before, during, and after a flight.
Personal readiness. Individuals must, by necessity, ensure that they are adequately prepared for flight. Consequently, the category of personal readiness was created to account for those instances when rules such as disregarding crew rest requirements, violating alcohol restrictions, or self-medicating, are not adhered to. However, even behaviours that do not necessarily violate existing rules or regulations (eg. running ten miles before piloting an aircraft or not observing good dietary practices) may reduce the operating capabilities of the individual and are, therefore, captured here as well.
Environmental factors
Although not human per se, environmental factors can also contribute to the substandard conditions of operators and hence to unsafe acts. Very broadly, these environmental factors can be captured within two general categories: the physical environment and the technological environment.
Physical environment. The impact that the physical environment can have on aircrew has long been known, and much has been documented in the literature on this topic (eg. Nicogossian, Huntoon, & Pool, 1994; Reinhart, 1996). The term 'physical environment' refers to both the operational environment (eg. weather, altitude, terrain) as well as the ambient environment, such as heat, vibration, lighting, and toxins in the cockpit. For example, flying into adverse weather reduces visual cues, which can lead to spatial disorientation and perceptual errors. Other aspects of the physical environment such as heat can cause dehydration, which reduces a pilot's alertness level, producing a subsequent slowing of decision-making processes or even the inability to control the aircraft. Likewise, a loss of pressurisation at high altitudes or manoeuvring at high altitudes without supplemental oxygen in unpressurised aircraft can result in hypoxia, which leads to delirium, confusion, and a host of unsafe acts.
Technological environment. Within the context of HFACS, the term 'technological environment' encompasses a variety of issues, including the design of equipment and controls, display/interface characteristics, checklist design, and automation, to name a few. Indeed, one of the classic design problems first discovered in aviation was the similarity between the controls used to raise and lower the flaps and those used to raise and lower the landing gear. Such similarities often caused confusion among pilots, resulting in the frequent raising of the landing gear while still on the ground. Likewise, automation designed to improve human performance can have unforeseen consequences. For example, highly reliable automation has been shown to induce adverse mental states such as overconfidence and complacency, resulting in pilots following the instructions of the automation even when common sense suggests otherwise. In contrast, unreliable automation can often result in a lack of confidence and disuse of automation even though aided performance is safer than unaided performance (Wickens & Hollands, 2000).
Unsafe supervision
Clearly, aircrews are responsible for their actions and, as such, must be held accountable. However, in some instances, they are the unwitting inheritors of latent failures attributable to those who supervise them. To account for these latent failures, the overarching category of unsafe supervision was created within which four categories (inadequate supervision, planned inappropriate operations, failed to correct known problems, and supervisory violations) are included.
Inadequate supervision. This category refers to failures within the supervisory chain of command as a direct result of some supervisory action or inaction. At a minimum, supervisors must provide the opportunity for individuals to succeed. It is expected, therefore, that individuals will receive adequate training, professional guidance, oversight, and operational leadership, and that all will be managed appropriately. When this is not the case, aircrew can become isolated, thereby increasing the risks associated with day-to-day operations.
Planned inappropriate operations. The risks associated with supervisory failures come in many forms. Occasionally, for example, the operational tempo and/or schedule are
planned such that individuals are put at unacceptable risk and, ultimately, performance is adversely affected. As such, the category of planned inappropriate operations was created to account for all aspects of improper or inappropriate crew scheduling and operational planning, which may focus on such issues as crew pairing, crew rest, and managing the risk associated with specific flights.
Failed to correct known problems. The remaining two categories of unsafe supervision, the failure to correct known problems and supervisory violations, are similar, yet considered separately within HFACS. Failed to correct known problems refers to those instances when deficiencies among individuals, equipment, training, or other related safety areas are known to the supervisor, yet are allowed to continue uncorrected. For example, the failure to consistently correct or discipline inappropriate behaviour certainly fosters an unsafe atmosphere but is not considered a violation if no specific rules or regulations are broken.
Supervisory violations. This category is reserved for those instances when supervisors wilfully disregard existing rules and regulations. For instance, permitting aircrew to operate an aircraft without current qualifications or license is a flagrant violation that may set the stage for the tragic sequence of events that may follow.
Organisational Influences
Where decisions and practices by front-line supervisors and middle management can adversely impact aircrew performance, fallible decisions of upper-level management may directly affect supervisors and the personnel they manage. Unfortunately, these organisational influences often go unnoticed or unreported by even the best-intentioned accident investigators. The HFACS framework describes three latent organisational failures: 1) resource management, 2) organisational climate, and 3) operational processes.
Resource management. This category refers to the management, allocation, and maintenance of organisational resources, including human resource management (selection, training, staffing), monetary safety budgets, and equipment design (ergonomic specifications). In general, corporate decisions about how such resources should be managed centre around two distinct objectives — the goal of safety and the goal of on-time, cost-effective operations. In times of prosperity, both objectives can be easily balanced and satisfied. However, there may also be times of fiscal austerity that demand some give and take between the two. Unfortunately, history tells us that safety is often the loser in such battles, as safety and training are often the first to be cut in organisations experiencing financial difficulties.
Organisational climate. The concept of an organisation's culture has been described in many ways; however, here it refers to a broad class of organisational variables that influence worker performance. One telltale sign of an organisation's climate is its structure, as reflected in the chain-of-command, delegation of authority and responsibility, communication channels, and formal accountability for actions. Just like in the cockpit, communication and coordination are vital within an organisation. However, an organisation's policies and culture are also good indicators of its climate. Consequently, when policies are ill-defined, adversarial, or conflicting, or when they are supplanted by unofficial rules and values, confusion abounds, and safety suffers within an organisation.
Operational process. Finally, operational process refers to formal processes (operational tempo, time pressures, production quotas, incentive systems, schedules, etc.), procedures (performance standards, objectives, documentation, instructions about procedures, etc.), and oversight within the organisation (organisational self-study, risk management, and the establishment and use of safety programs). Poor upper-level management and decisions concerning each of these organisational factors can also have a negative, albeit indirect, effect on operator performance and system safety.
References
Nicogossian, A. E., Huntoon, C. L., & Pool, S. L. (1994). Space physiology and medicine (3rd edition). Baltimore, MD: Williams and Wilkins.
Reason, J. (1990). Human error. New York: Cambridge University Press.
Reinhart, R. (1996). Basic flight physiology (2nd edition). New York: McGraw Hill.
Wickens, C. D., & Hollands, J. G. (2000). Engineering psychology and human performance (3rd edition). Upper Saddle River, NJ: Prentice Hall.
Appendix B Occurrence codes and phase of flight codes
Codes used by the National Transportation Safety Board (US) in categorising accident occurrences and phases of operation (National Transportation Safety Board, 1998)
Source: National Transportation Safety Board (1998). Aviation coding manual, Washington, DC, National Transportation Safety Board.
Appendix C Result details
Table C.1: Frequency of accidents by type of flying operation 1993-2002
| Flying operation (Code of Federal Regulation part) | Frequency | |
|---|---|---|
| | Australia | US |
Table C.2: Comparison of accident occurrence type, 1993-2002
| Occurrence Group | Australia | | US | |
|---|---|---|---|---|
| | Frequency | % | Frequency | % |
| Airframe/propeller/rotor malfunction Gear collapse Forced landing Hard landing In flight collision In flight/on ground encounter with weather Wheels up/down Loss of control in flight Loss of control on ground/water On ground collision Loss of power Other occurrence category Total occurrences | 410 539 318 640 2116 102 373 942 525 797 952 751 8465 | 4.84 6.37 3.76 7.56 24.99 1.20 4.41 11.13 6.20 9.42 11.25 8.87 | 3473 2068 5255 3396 19417 3022 475 10763 6550 7611 12968 9134 84132 | 4.13 2.46 6.25 4.04 23.08 3.59 0.56 12.79 7.79 9.05 15.41 10.86 |
Table C.3: Comparison of accident occurrence type, first occurrence, 1993-2002
| First occurrence | Australia | | |
|---|---|---|---|
| | Frequency | % | Frequency |
| Airframe/propeller/rotor malfunction Gear collapse Forced landing Hard landing In flight Collision In flight/on ground encounter with weather Wheels up/down Loss of control in flight Loss of control on ground/water On ground collision Loss of power Other occurrence category Total accidents | 184 134 4 157 390 38 82 182 152 146 382 174 2025 | 9.09 6.62 0.20 7.75 19.26 1.88 4.05 8.99 7.51 7.21 18.86 8.59 | 1130 273 20 970 2559 914 136 2545 2158 910 5312 2034 18961 |
Table C.4: Comparison of phase of flight, all occurrences, 1993-2002
| Phase of flight, all occurrences | Australia | | US | |
|---|---|---|---|---|
| | Frequency | % | Frequency | % |
| Standing Taxi Takeoff Climb Cruise Descent Approach Landing (incl emergency) Manoeuvring Other/unknown Total occurrences | 146 261 1051 85 566 633 810 3352 1120 441 8465 | 1.72 3.08 12.42 1.00 6.69 7.48 9.57 39.60 13.23 5.21 | 665 1850 11610 2147 9184 9675 8271 28227 8267 4236 84132 | 0.8 2.2 13.8 2.6 10.9 11.5 9.8 33.6 9.8 5.5 |
Table C.5: Comparison of phase of flight, first occurrence, 1993-2002
| Phase of flight, first occurrence | Australia | | |
|---|---|---|---|
| | Frequency | % | Frequency |
Table C.6: Frequency of Australian and US accidents associated with each type of unsafe act, 1993-2002
| Year | Australia | | | | US | | | |
|---|---|---|---|---|---|---|---|---|
| | Skill- based error | Decision error | Perceptual error | Violation | Skill- based error | Decision error | Perceptual error | Violation |
| 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Total | 162 118 124 125 135 119 92 110 109 86 1180 | 74 61 49 54 45 48 29 36 44 24 464 | 10 14 13 10 2 7 12 8 8 1 85 | 18 17 17 11 7 14 11 6 5 2 108 | 1127 1138 1130 1105 1018 1067 1085 1038 947 934 10589 | 457 376 440 421 419 374 385 400 372 352 3996 | 86 77 112 148 104 93 95 78 60 46 899 | 203 179 239 214 192 173 148 155 147 117 1767 |
Table C.7: Australian precipitating unsafe act, 1993-2002
| Skill-based error Decision error Perceptual error Violation Total | |
|---|---|
| | 1027 267 46 25 1365 |
REFERENCES
Adams, D. (2006). A layman's introduction to human factors in aircraft accident and incident investigation (Safety Information Paper B2006/0094). Canberra: Australian Transport Safety Bureau.
Altman, D. G. (1991). Practical statistics for medical research. Boca Raton: Chapman & Hall/CRC.
Australian Transport Safety Bureau. (2004). General aviation fatal accidents: How do they happen? A review of general aviation accidents 1991 to 2000 (Aviation Research Paper B2004/0010). Canberra: Australian Transport Safety Bureau.
Australian Transport Safety Bureau. (2006). International fatality rates: A comparison of Australian civil aviation fatality rates with international data (Aviation Research & Analysis Report B2006/0002). Canberra: Australian Transport Safety Bureau.
Batt, R., & O'Hare, D. (2005). General aviation pilot behaviours in the face of adverse weather (Aviation Research Investigation Report B2000/0127). Canberra: Australian Transport Safety Bureau.
Boquet, A., Detwiler, C., Holcomb, K., Holcomb, K., Shappell, S. A., & Wiegmann, D. A. (2005). Human error associated with air medical transport accidents in the United States: Manuscript submitted for publication.
Davies, H. T. O. (2001). What are confidence intervals? Retrieved 28 August 2006, from http://www.evidence-based-medicine.co.uk/ebmfiles/WhatareConfInter.pdf
Detwiler, C., Boquet, A., Holcomb, K., Hackworth, C., Pfeiderer, E., Wiegmann, D. A., et al. (2005a). Beneath the tip of the iceberg:A human factors analysis of general aviation accidents in Alaska versus the rest of the United States (DOT/FAA/AM-06/7). Oklahoma City, OK 73125: Civil Aerospace Medical Institute, Federal Aviation Administration.
Detwiler, C., Holcomb, K., Boquet, A., Wiegmann, D. A., & Shappell, S. A. (2005b). A human error analysis of general aviation and commercial air tour accidents. Paper presented at the 76th Annual Meeting of the Aerospace Medical Association, Kansas City, MO.
Diekhoff, G. (1992). Statistics for the social and behavioural sciences:Univariate, bivariate, multivariate. Dubuque, IA: Wm. C. Brown Publishers.
Federal Railroad Administration. (2005). Human factors root cause analysis of accidents/incidents involving remote control locomotive operations (No. RR05-05). Washington, DC: US Department of Transportation.
Gaur, D. (2005). Human factors analysis and classification system applied to civil aircraft accidents in India. Aviation, Space and Environmental Medicine, 76(5), 501-505.
Helmreich, R. L., & Merritt, A. C. (1998). Culture at work in aviation and medicine: National, organizational and professional influences. Aldershot, United Kingdom: Ashgate.
Li, W.-C., & Harris, D. (2005). HFACS analysis of ROC air force aviation accidents:Reliability analysis and cross-cultural comparison. International Journal of Applied Aviation Studies, 5(1), 65-81.
Li, W.-C., Harris, D., & Chen, S.-Y. (2005). Eastern minds in western cockpits: Cross-cultural comparison of aviation mishaps by applying human factors analysis and classification system (HFACS). Manuscript submitted for publication.
Lourens, P. F. (1989). Error analysis and applications in transportation systems. Accident Analysis & Prevention, 419-426.
Markou, I., Papadopoulos, I., Pouliezos, N., & Poulimenakos, S. (2006). Air accidents-incidents human factors analysis:The Greek experience 1983-2003. Paper presented at the 18th annual European Aviation Safety Seminar, Athens, Greece.
National Transportation Safety Board. (1998). Aviation coding manual. Washington, DC: National Transportation Safety Board.
National Transportation Safety Board. (2005). Current procedures for collecting and reporting US general aviation accident and activity data (NTSB/SR-05/02 PB2005-917002). Washington, DC: National Transportation Safety Board.
O'Hare, D. (2000). The 'wheel of misfortune':A taxonomic approach to human factors in accident investigation and analysis in aviation and other complex systems. Ergonomics, 43(12), 20012019.
O'Hare, D., Wiggins, M., Batt, R., & Morrison, D. (1994). Cognitive failure analysis for aircraft accident investigation. Ergonomics, 37(11), 1855-1869.
Pape, A. M., Wiegmann, D. A., & Shappell, S. A. (2001). Air traffic control (ATC) related accidents and incidents:A human factors analysis. Paper presented at the 11th International Symposium on Aviation Psychology, The Ohio State University, Columbus OH.
Shappell, S. A. (2005). Assessment and development of safety programs targeting human error in general aviation: Clemson University, Clemson, SC.
Shappell, S. A., & Wiegmann, D. A. (2000a). Is proficiency eroding among US naval aircrews? A quantitative analysis using the human factors analysis and classification system. Paper presented at the 44th Annual meeting of the Human Factors and Ergonomics Society, San Diego California, USA.
Shappell, S. A., & Wiegmann, D. A. (2000b). The human factors analysis and classification systemHFACS (DOT/FAA/AM-00/7). Oklahoma City, OK: Civil Aeromedical Institute, Federal Aviation Administration.
Shappell, S. A., & Wiegmann, D. A. (2003a). A human error analysis of general aviation controlled flight into terrain (CFIT) accidents occurring between 1990-1998 (DOT/FAA/AM-03/4). Oklahoma City, OK: Civil Aerospace Medical Institute, Federal Aviation Administration.
Shappell, S. A., & Wiegmann, D. A. (2003b). Reshaping the way we look at general aviation accidents using the human factors analysis and classification system. Paper presented at the Proceedings of the 12th International Symposium on Aviation Psychology, Dayton, Ohio USA.
Shappell, S. A., & Wiegmann, D. A. (2004). HFACS analysis of military and civilian aviation accidents: A North American comparison. Paper presented at the Annual Meeting of the International Society of Air Safety Investigators, Queensland, Australia.
Thompson, W. T., Tvaryanas, A. P., & Constable, S. (2005). US military unmanned aerial vehicle mishaps: Assessment of the role of human factors using human factors analysis and classification system (HFACS) (HSW-PE-BR-TR-2005-0001). Brooks City-Base: United States Air Force, 311th Human Systems Wing.
Wiegmann, D. A., & Shappell, S. A. (1997). Human factors analysis of postaccident data:Applying theoretical taxonomies of human error. The International Journal of Aviation Psychology, 7(1), 67-81.
Wiegmann, D. A., & Shappell, S. A. (2001). A human error analysis of commercial aviation accidents using the human factors analysis and classification system (HFACS) (DOT/FAA/AM-01/3). Oklahoma City, OK: Civil Aeromedical Institute.
Wiegmann, D. A., & Shappell, S. A. (2003). A human error approach to aviation accident analysis: The human factors analysis and classification system. London, UK: Ashgate Publishing Company.
Wiegmann, D. A., Shappell, S. A., Boquet, A., Detwiler, C., Holcomb, K., & Faaborg, T. (2005). Human error and general aviation accidents: A comprehensive, fine-grained analysis using HFACS (AHFD-05-08/FAA-05-03). Savoy, Illinois: University of Illinois.
|
LICENSING COMMITTEE
Minutes of the meeting held on Wednesday, 14 th September 2016 at Worksop Town Hall
Present: Councillor J Potts (Chair)
Councillors J R Anderson, B A Bowles, K M Greaves, S Isard, G Jones, D Merryweather, D Potts, D R Pressley and K Sutton.
Officers in attendance: S Aston, S Bacon, J Hamilton, W Nuttall and A Webster.
(Meeting opened at 6.30pm.)
(The Chair welcomed all to the meeting and read out the Fire Alarm/Evacuation Procedure. She also enquired as to whether any member of the public wished to film/record the meeting or any part thereof; however, although one applicant was present, this was not taken up).
(The Principal Solicitor (Licensing and Regulatory) introduced Mr Wayne Nuttall, the newly appointed Enforcement Officer, who will be replacing Mr K Wood.)
19. APOLOGIES FOR ABSENCE
Apologies for absence were received from Councillors H M Brand and G Clarkson.
20. DECLARATIONS OF INTEREST BY MEMBERS AND OFFICERS
(a) Members
Councillor J R Anderson declared a Disclosable Pecuniary Interest in Agenda Item No. 7(b) – Application for Exemption from DVSA Taxi Driver Test, as he is employed by the company that administers the test. He left the meeting and took no part in the discussion and voting thereof.
Councillor D R Pressley declared a non-pecuniary interest in Agenda Item No. 6(g) – Campsite Licences, as his son works at Clumber Park; he remained in the meeting.
(b) Officers
There were no Declarations of Interest by officers.
21. MINUTES OF THE MEETING HELD ON 20 TH JULY 2016
RESOLVED that the Minutes of the meeting held on 20 th July 2016 be approved.
22. MINUTES FOR ACTION
The Principal Solicitor (Licensing and Regulatory) informed Members that Minute No. 15(a) – Hackney Carriage / Private Hire Drivers, Private Hire Operators and Licensed Vehicle Penalty Points Scheme had been implemented.
With reference to Minute No. 15(b) – Park Homes Licence Conditions, the Principal Solicitor (Licensing and Regulatory) informed Members that the consultation exercise closes on 16 th September, and a report will be brought back to a future meeting.
RESOLVED that the Minutes for Action be received.
23. OUTSTANDING MINUTES LIST
The Principal Solicitor (Licensing and Regulatory) informed Members that work on Minute No. 35(b) – Roadside Catering Policy, is progressing but delayed due to long term sickness in other departments.
With reference to Minute No. 6(a) – Review of Proposed Hackney Carriage Fare Increase, this is dependent on the outcome of Agenda Item No. 6(a) being considered tonight.
RESOLVED that the Outstanding Minutes List be received.
SECTION A – ITEMS FOR DISCUSSION IN PUBLIC
Key Decisions
None.
Other Decisions
24. REPORT(S) OF THE PRINCIPAL SOLICITOR (LICENSING AND REGULATORY
)
(a) Private Hire Operator's Licence Advertisements
Members were asked to consider whether it is necessary for the Authority to place a Public Notice advertisement in the local press to notify the public when an application (or change) has been made for a Private Hire Operator's Licence and, if so, who should pay for the advertisement.
The Principal Solicitor (Licensing and Regulatory) advised Members that the current application process for Private Hire Operator's Licences requires that a Public Notice advertisement is placed in the local press (Worksop Guardian or Retford Times) which notifies the public of the application, the name and address of the applicant and how many vehicles will be subject to the licence. It is believed that this was undertaken to allow members of the public to comment upon any "amenity" issues which may occur as a result of a business operating at a residential address. All applicants must liaise with the Council's Planning Department to ascertain whether full planning permission is required to operate from with a home address/base address. Currently, the Council pays for this advertisement and the applicant is charged the standard fee, as detailed in Paragraph 3.4 of the report, which is less than the charge levied by the newspaper.
There is no statutory requirement to use a Public Notice to advertise a new Private Hire Operator's Business, and other Nottinghamshire Authorities do not use such advertisements. A Private Hire Operator's Licence can only be refused if the applicant is not a "fit and proper person" to hold such a licence. A licence cannot be refused for "amenity" issues; these are matters for the Planning Department. The Principal Solicitor (Licensing and Regulatory) proposed that the Licensing Department would notify the Planning Department of any new applications/amendments to Private Hire Operator's Licences so that they can consider if enforcement action is needed for breach of planning requirements/conditions. A disclaimer about information sharing would be placed on the application form to advise applicants that the information contained on the form may be shared with other Council departments and/or external agencies and an express declaration that the Planning Department will be notified of the application for a licence.
Members discussed the options and risks detailed in the report in Section 5.
RESOLVED that:
1. It be agreed that, with immediate effect, advertisements in the local press relating to Private Hire Operator's Licences are no longer required.
2. The Licensing Department will notify Bassetlaw District Council's Planning Department of any new application for a Private Hire Operator's Licence or amendments to such a Licence.
3. Amendments are made to the Private Hire Operator's Licence application form to cover data sharing and the prevention of fraud.
(b) Review of CCTV in Hackney Carriage/Private Hire Vehicles
Members were asked to consider whether there is the need for a requirement to compel proprietors/operators/owners of Hackney Carriage and Private Hire Vehicles in the Bassetlaw District to install CCTV.
This was originally considered by the Licensing Committee at its meeting held on 16 th September 2015 but deferred for a period of 12 months in light of issues being faced by Rotherham Metropolitan Borough Council (RMBC). The original report was appended to the report.
The Principal Solicitor (Licensing and Regulatory) advised Members that RMBC implemented changes in early 2016 compelling the installation of CCTV in all licensed vehicles by 6 th July 2016 or by the date of renewal of the annual vehicle licence. A copy of the RMBC CCTV specification was appended to the report, and summarised at Paragraph 3.9 of the report, together with a list of systems considered suitable by RMBC. The conditions that RMBC has added to the Private Hire Vehicle Licences were listed at Paragraph 3.11 and those for Hackney Carriage Licences relating to CCTV were listed at Paragraph 3.12. Advice from the Information Commissioner's Office (ICO) and the Local Government Association (LGA) was outlined in Paragraph 3.13, also action taken/being considered by other Nottinghamshire Authorities.
Members noted that numerous requirements have already been introduced throughout 2015 and 2016 which have placed an increased financial burden on licence holders, and these were detailed at Paragraph 3.14 of the report. If mandatory CCTV is implemented, training may need to be provided to Licensing Enforcement Officers and Vehicle Testers to enable them to be able to check and operate the CCTV systems to ensure compliance with any conditions which may be implemented by the Committee.
Members discussed the options and risks detailed in the report in Section 5.
RESOLVED that no mandatory changes be implemented at this point in time but a paragraph be included in the proposed Hackney Carriage Private Hire Policy process stating that the installation of CCTV in licensed vehicles is at the discretion of the proprietor/operator/owner.
(c) Hackney Carriage and Private Hire Vehicle Age Policy
Members were asked to give consideration to clarifying the Council's current policy in relation to the age upon which a Hackney Carriage or Private Hire Vehicle will cease to be licensed.
In 2005, the Licensing Committee determined the number of wheelchair accessible vehicles which were to be made available to the public and the age policy in relation to the age of the vehicle at first licensing and the age at which a vehicle will no longer be licensed.
Current policy is that, on initial application, the vehicle must fall within the five-year age policy, i.e. the vehicle must be under five years of age in relation to the date of registration stated on the vehicle registration document (V5). Vehicles must come off the road for licensing purposes at the age of ten years for saloons and estates. The maximum age for wheelchair accessible vehicles is twelve years, also specialist vehicles i.e. stretch limousines. A vehicle can be licensed for a longer period than specified in the policy if the vehicle meets the conditions as set out in the "exceptional condition" definition, which was appended to the report.
To date, officer discretion has been used to extend the vehicle over the ten or twelve-year and ten-year age policy to incorporate either the full annual or six-month vehicle licence in line with the appropriate remittance fee. The Licensing Department has received concerns from an existing Hackney Carriage proprietor that, in their view, the Authority is "acting unfairly" when providing such extensions and that the Authority should adhere exactly to the ten or twelve-year registration date stated on the vehicle registration document (V5).
Members discussed the options and risks detailed in the report in Section 6.
RESOLVED that delegated authority be granted to the Principal Solicitor (Licensing and Regulatory) and the Licensing Officer to continue to deal with individual age policy extensions to incorporate the full annual vehicle licence or the full six-month vehicle inspection as and when they arise.
(d) Criminal Records Checks for Private Hire Operators
Members were asked to consider whether to require Private Hire Operators to produce a criminal records check certificate when applying for a licence.
Bassetlaw District Council, as the Licensing Authority, grants Private Hire Operator's Licences for periods of either three or five years, in accordance with Section 55 of the Local Government (Miscellaneous Provisions) Act 1976, if satisfied that the applicant is a "fit and proper person", although there is no definition of this term. The applicant's experience, character and any relevant previous convictions are taken into consideration, with the applicant providing two character references.
Some of the current Private Hire Operators hold Combined Hackney Carriage/Private Hire Vehicle Driver's Licences and, for this, undertake an enhanced Disclosure and Barring Service (DBS) check. This issue is that in Bassetlaw it is not a pre-requisite condition that a Combined Carriage/Private Hire Vehicle Driver's Licence is held before applying to become a Private Hire Operator, therefore such applicants are not required to undertake a criminal records check.
The Principal Solicitor (Licensing and Regulatory) related the advice given by Personnel Checks (the company which procures DBS checks for applicants of Combined Hackney Carriage/Private Hire Vehicle Driver's Licences), which was summarised in Paragraph 3.6 of the report. Two options were presented to Members – verification by the Council or individual paper forms.
Members discussed the options and risks detailed in the report at Section 5.
RESOLVED that:
1. Applicants for Private Hire Operator's Licences who do not hold valid Combined Hackney Carriage/Private Hire Vehicle Driver's Licences and those who hold Combined Hackney Carriage/Private Hire Vehicle Driver's Licences whose current DBS Certificate is more than two months old, be required to apply for the basic disclosure, and the results of this disclosure be provided to the Licensing Department in support of their application.
2. Applicants be able to apply for their own basic disclosure check directly with Personnel Checks, submitting their paper application with clear photocopies of ID for processing.
3. The cost of £38.00 per driver including VAT be approved.
(e) Comments Received in Relation to the Proposed Increase in the Hackney Carriage Scale of Fares
Members were presented with comments which had been received in response to the statutory advertisement relating to the proposed increase of the Hackney Carriage Scale of Fares, following the decision made by Licensing Committee on 15 th June 2016. A copy of the June 2016 report and its appendices were appended to the report. Full copies of the responses were appended to the report and also summarised in Paragraph 3.5.
As objections have been received, Section 65(4) of the Local Government (Miscellaneous Provisions) Act 1976 states:
"If objections are made and not withdrawn, the council shall set a further date, not later than two months after the first specified date, on which the table of fares shall come into force with or without modifications as decided by them after consideration of the objections."
The Principal Solicitor (Licensing and Regulatory) advised Members that there is no set formula by which they have to increase the Scale of Fares; they have total discretion to set the Scale of Fares as they see appropriate.
Members discussed the options and risks detailed in the report at Section 5.
RESOLVED
that:
1. No amendments be made to the resolution made at the meeting of the Licensing Committee held on 15 th June 2016, i.e.:
(i) Tariff One be increased to £4.00 up to the first mile or part thereof and 19p for 1/10 or part thereof.
(ii) Tariff Two commencement time to remain at midnight and no increase to be applied.
(iii) Waiting Time - increase to 10p per 20 seconds.
(iv) Soiling Charge to remain at £75 as proposed in 2015.
2. The new Hackney Carriage Scale of Fares to come into effect from 31 st October 2016.
(Councillor J R Anderson abstained from voting in respect of the above item.)
(f) Vehicle Age Policy Review
Members were asked to consider the maximum age at which vehicles are allowed to be licensed in the Bassetlaw District without being subject to an "exceptional condition" application by the owner.
Current policy is that, on initial application, the vehicle must fall within the five-year policy, i.e. the vehicle must be under five years of age in relation to the date of registration stated on the vehicle registration document. Vehicles must come off the road for licensing purposes at the age of ten years for saloons and estates. The maximum age for wheelchair accessible vehicles is twelve years. At the time this policy decision was made, only purpose-built Hackney Carriage wheelchair access vehicles, such as LTIs, were licensed by the Authority. The twelve-year age policy also applies to specialist vehicles i.e. stretch limousines. A vehicle can be licensed for a longer period than specified in the policy if the vehicle meets the conditions as set out in the "exceptional condition" definition, which was appended to the report.
A list of vehicle models currently licensed as Hackney Carriage or Private Hire Wheelchair Accessible Vehicles with Bassetlaw District Council was also appended to the report. Some of the vehicles are based on standard saloon and estates type vehicles which have been modified by the manufacturers to enable them to transport a wheelchair. These vehicles have not been specifically designed as per the LTIs and Euro 7s to withstand heavy/commercial usage.
The Principal Solicitor (Licensing and Regulatory) and Licensing Officer have conducted research into the maximum age policies operated by other local authorities, the findings of which were appended to the report. It was noted that the only authority which allows Hackney Carriage vehicles to operate to 15 years is Sheffield City Council; however, they only license the "black cab" style vehicles as Hackney Carriages.
Members discussed the options and risks detailed in the report at Section 5.
RESOLVED that:
1. On initial application, the vehicle must fall within the five-year age policy (i.e. the vehicle must be under five years of age in relation to the date of registration stated on the vehicle registration document (V5).
2. Vehicles must come off the road for licensing purposes at the age of ten years for saloons and estates and twelve years for wheelchair accessible vehicles.
3. The twelve-year age policy also covers specialist vehicles i.e. stretch limousines.
4. Once vehicles reach the maximum age, if the proprietor wishes to keep/renew the vehicle licence, they must apply to have the vehicle licensed under the "exceptional condition" policy.
(g) Campsite Licences
Members were asked to consider the implementation of licences for tented campsites in the Bassetlaw District, and approval was sought for the draft conditions which were appended to the report.
UK camping is controlled by several pieces of legislation, including the Public Health Act 1936 and the Caravan Sites and Control of Development Act 1960. To operate a tented campsite, the owner/operator needs to obtain a licence from the Licensing Department if they are operating for more than 42 consecutive days or more than 60 days in any 12 consecutive months. No fee can be charged for the grant of a licence but the local authority is under a duty to grant such a licence. The site will require planning permission to operate for over 28 days in any calendar year, unless the site is occupied by a recreational organisation.
Organisations such as the Caravan & Camping Club, Scout Association and Freedom Camping Club hold exemptions which allows them to certify small caravan and campsites for use by club members. Other exemptions were listed at Paragraph 3.4 of the report. Exempt sites must still comply with basic criteria to ensure those staying on them have access to a safe drinking water supply and suitable means of disposal for all waste, including toilet waste. Exempt sites must be maintained in a safe condition.
Council Enforcement Officers will need to inspect licensed campsites at least once each year. Those unlicensed campsites which operate without a licence but appear to need one, will be monitored by Enforcement Officers in an informal way as they travel around the District. The Licensing Department will retain a database of sites containing basic information which will be a useful reference should an enquiry be made about any particular site.
RESOLVED that:
1. The draft conditions for a Campsite Licence, as appended to the report, be approved.
2. Delegated authority be granted to the Council Solicitor and Principal Solicitor (Licensing and Regulatory) to amend conditions and draft specific conditions where they feel it is
appropriate after consideration of an application and a site inspection by officers of the Authority.
3. Where planning permission has been granted for a limited duration, the Campsite Licence shall only be granted for the duration of the planning permission.
4. Delegated authority be granted to the Principal Solicitor (Licensing and Regulatory) to design and publish an application form for those persons who wish to apply for a Campsite Licence.
(Councillor D R Pressley had declared a non-pecuniary interest in the above item; he remained in the meeting and took part in the discussion and voting thereof.)
25. LOCAL GOVERNMENT (ACCESS TO INFORMATION) ACT 1985
RESOLVED that, in accordance with Part 1 of Schedule 12A of the Local Government Act 1972, and after considering the public interest test as set out by the officer in the body of the report, Members agreed that the following items of business involved the likely disclosure of exempt information as defined in Paragraphs 1 and 3, and therefore, in accordance with Section 100A of the Act, the press and public be excluded from the meeting:
Agenda Item No. 7(a) – Application for Exemption from Displaying PHV Plates / Door Signs – Paragraph 3
Agenda Item No. 7(b) – Application for Exemption from DVSA Taxi Driver Test - Paragraph 1.
SECTION B – ITEMS FOR DISCUSSION IN PRIVATE
Key Decisions
None.
Other Decisions
26. REPORT(S) OF THE PRINCIPAL SOLICITOR (LICENSING AND REGULATORY)
(a) Application for Exemption from Displaying PHV Plates / Door Signs
Members were asked to consider an application for exemption in respect of the condition to display private hire vehicle plates and door signs for two vehicles. The applicant is in the process of applying for a Private Hire Operator's Licence with Bassetlaw District Council, and previously held one between 10 th April 2013 and 9 th April 2016 before moving his business to a different authority area.
A letter in support of the application and copies of photographs of the vehicles were appended to the report. The applicant was present and expanded on his business and its growth in response to demand.
RESOLVED that a Notice of Exemption for the display of private hire vehicle plates and door signs be granted under Section 75(3) of the Local Government (Miscellaneous Provisions) Act 1976 in respect of the applicant's two vehicles, as listed in Paragraph 3.3 of the report.
(b) Application for Exemption from DVSA Taxi Driver Test
Members were asked to consider an application for exemption from taking the DVSA Taxi Driver Test by the applicant in the previous item who is in the process of applying for a Private Hire Operator's Licence with Bassetlaw District Council.
The applicant's driving qualifications were listed at Paragraph 3.5 of the report, and the vehicles he is qualified to drive were listed at Paragraph 3.6. Copies of the evidence provided in support of his application were appended to the report. The applicant was present and expanded on his qualifications and driving experience.
RESOLVED that the applicant be exempt from having to sit the DVSA Taxi Driver Test based on the evidence which he had provided relating to driving qualifications which he currently holds.
(Councillor J R Anderson had declared a Disclosable Pecuniary Interest in the above item, and left the meeting, taking no part in the discussion and voting thereof.)
27. ANY OTHER BUSINESS WHICH THE CHAIR CONSIDERS TO BE URGENT.
As there was no other urgent business to be discussed, the Chair closed the meeting.
(Meeting closed at 8.35pm.)
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