text:
[ v39 p476 ]
The decision of the Authority follows:
39 FLRA No. 39
February 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Susan T. MacKenzie filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the exceptions.
A grievance was filed contesting the Agency's denial of the grievant's request to advertise his outside employment as an attorney. The Arbitrator found that the denial, which was based on an Agency regulation, violated the grievant's rights under the U.S. Constitution and sustained the grievance. The Arbitrator ordered the Agency to review its regulation barring advertising by attorneys who have been given permission for outside employment, and to afford the Union an opportunity to meet and discuss the regulation.
We conclude, for the following reasons, that the Agency has failed to demonstrate that the award is deficient under section 7122(a) of the Statute.
II. Background and Arbitrator's Award
The grievant, an Estate Tax Attorney for the Agency, received permission from the Agency to practice law outside of his Government employment. Subsequently, the grievant sought permission to advertise his outside legal services. His request was denied based on section 225.2 of the Agency's Rules of Conduct (hereinafter "the rule"), which precludes the advertising of outside legal activities by Agency attorneys. Award at 5-6. 1/
The Arbitrator concluded that the grievance was arbitrable. The Arbitrator noted that the parties defined the term "grievance" as encompassing "'any complaint' concerning 'any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment.'" Id. at 11. The Arbitrator concluded that the U.S. Constitution was an "applicable law" under that definition. Id.
As to the merits of the grievance, the Arbitrator found that the Agency had "a compelling interest in ensuring that the outside employment and activities of employees do not undermine public confidence in the integrity, efficiency and fairness of the Agency." Id. at 13. The Arbitrator further found that the Agency had the right to "promulgate . . . reasonable rules in furtherance" of this responsibility, as long as such rules were consistent with law, rule, regulations, and the parties' agreement. Id.
The Arbitrator concluded, however, that the "nature and content of the advertising for which grievant sought approval was similar if not parallel to the form and content of advertising which the Supreme Court . . . held was within the scope of First Amendment protection" in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (Bates), where, according to the Arbitrator, the Supreme Court held that "such advertising was . . . commercial speech of public concern which served individual and societal interests." Id. at 14. The Arbitrator stated that in "the absence of any authority demonstrating that the Court's holding in Bates is not applicable" to the grievance, "the advertising which grievant sought to have approved falls within the scope of protected speech under the First Amendment." Id.
The Arbitrator held that a determination was necessary as to whether "the blanket prohibition against advertising . . . serves a compelling governmental interest sufficient to override grievant's First Amendment rights." Id. at 15. The Arbitrator concluded that the grievant's rights under the First Amendment were violated "[b]ecause the record proof falls short of supporting the assertion of an overriding interest of the Agency in restricting constitutionally protected activity[.]" Id. at 17.
As a remedy, the Arbitrator directed the Agency "to review and afford the Union an opportunity to meet and consult on Rule 225.2(2) and reformulate its provisions consistent with the constitutional bar to a blanket prohibition on advertising by attorneys." Id. Finally, the Arbitrator rejected the Union's request that she retain jurisdiction over the matter in order to entertain a request for attorney's fees, because she concluded that there was no basis for the payment of such fees.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency filed 10 exceptions to the Arbitrator's award. In the first seven exceptions, the Agency asserts that the Arbitrator's award is contrary to law because, according to the Agency, the issue in this case is controlled by the Supreme Court's decision in Connick v. Myers, 461 U.S. 138 (1983) (Connick) rather than Bates.
The Agency asserts that the Arbitrator's holding that the "grievant's speech was a matter of public concern because it involved advertising by an attorney, an issue the Court found to be of public interest in Bates . . . is contrary to the Court's holding in Connick." Brief in Support of Exceptions at 11. According to the Agency, Connick holds that in "public employment cases . . . only speech involving matters of public concern warrants constitutional protection[,]" and that in "distinguishing between constitutionally protected and unprotected speech, the Court asked whether the public employee is speaking as a citizen or as an employee." Id. at 10.
The Agency asserts that as the grievant was merely seeking to advertise his legal services in order to enhance his personal financial situation, "the grievant's proposed advertising hardly touches at all on the societal interests discussed in Bates." Id. at 12. The Agency concludes, quoting Connick, that this matter "is most accurately characterized as an employee grievance concerning internal office policy." Id. (quoting 461 U.S. at 154). The Agency concludes that because the grievant's right to advertise is not protected "under Connick's analysis of the First Amendment rights of public employees[,] . . . the Agency's blanket prohibition on advertising outside legal employment or activities passes constitutional muster, and the Arbitrator's contrary conclusion is incorrect." Id.
The Agency further argues that, even if the grievant's speech is protected under Connick, its regulation is permissible because it "bears a reasonable relationship to legitimate management objectives . . . ." Id. at 13 (emphasis omitted). The Agency asserts that although the employee's sole interest in advertising is financial, the Agency's "particular interests lie in promoting the efficiency of a voluntary tax system, and in assuring fairness, competence and quality performance in all dealings with the public." Id. at 15. The Agency also asserts, in this regard, that although the grievant may seek to limit his outside practice to uncontested divorces which have no tax consequences, the rules of the legal profession preclude him from "advertis[ing] that his field of practice is so limited. . . ." Id. at 18. The Agency asserts that its regulation is intended to "prevent any conflict with a position of the [Agency], and to avoid any violation" of the rules of the legal profession. Id. at 19.
In its eighth and ninth exceptions, the Agency argues that, even if Bates applies, the Arbitrator incorrectly interpreted Bates. The Agency argues that, as Bates addressed commercial speech, the test set forth for determining the constitutionality of regulations addressing commercial speech set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557, 566 (1980) (Central Hudson Gas), applies. The Agency asserts that, under the Central Hudson Gas test, its "ban on advertising outside legal employment was constitutionally permissible in view of the substantial interests of the [Agency], the narrow scope of the prohibition, applying only to the area of outside employment which posed greatest risk to the [Agency's] mission, and the personal, remunerative nature of the proposed commercial speech." Brief in Support of Exceptions at 27.
Finally, in its tenth exception, the Agency asserts that the Arbitrator exceeded her remedial authority by requiring the Agency "to meet with the Union to reformulate [its] Rule in accordance with applicable law." Id. at 28. The Agency contends that if the rule is not constitutional, it has the right "to choose the method by which the constitutional prohibitions will be overcome, unless the Union initiates bargaining over the issue." Id. at 29. The Agency concludes that "the appropriate remedy would be to direct the Agency to reformulate [the regulation] in conformity with the First Amendment . . . ." Id.
B. The Union's Opposition
The Union asserts that the Arbitrator correctly determined that the Agency's regulation "violated the grievant's rights under the collective bargaining agreement and applicable laws, rules and regulations." Opposition at 7. The Union argues that Bates "is clearly the dispositive case in this matter since the Court held that the form and content" of legal advertising "was commercial speech of public concern[,]" and the Arbitrator "properly distinguishe[d] Connick because the Court found that the employee in that instance was not speaking on a matter of public concern." Id. at 9.
The Union contends that "[a]ll arguments . . . by the Agency to justify a blanket prohibition on advertising are merely an attempt to re-argue the merits of its position" before the Arbitrator and that the Agency failed to present any "rational justification" for its arguments. Id. at 11. Although the "Union agrees that the [Agency] has a compelling interest in ensuring that the outside employment of [its] employees does not conflict with the mission of the Agency[,]" the Union maintains that once the Agency permits its employees to engage in outside legal activities, the employees are governed by the rules of the jurisdiction in which they choose to practice. Id. at 11-12.
The Union also argues that, as the Agency determined that the grievant's "legal practice would not present a real or apparent conflict of interest" when it permitted him to practice law outside his employment with the Agency, the Agency cannot now assert that "advertising his legal services will . . . place [the grievant] in a position of conflict . . . ." Id. at 15 (emphasis in original). The Union concludes that the Arbitrator properly found that "the Agency did not present any rational justification for imposing the blanket prohibition" on legal advertising. Id. at 17.
Finally, the Union argues that the Arbitrator's award directing the Agency "to review, and afford the Union an opportunity to meet and discuss" the rule "is consistent with the remedial authority of arbitrators[,]" particularly as the Agency agreed that the Rule involves "a condition of employment subject to negotiation." Id. at 18.
IV. Analysis and Conclusions
We note, at the outset, that the Agency's claim that the Arbitrator incorrectly applied constitutional law in sustaining the grievance is properly before the Authority. Under section 7122(a)(1) of the Statute, the Authority reviews arbitrators' awards to ascertain whether they are contrary to any law, rule, or regulation. As we have previously held, "law" includes the U.S. Constitution. See Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO, Panama Canal Pilots Branch, 33 FLRA 15, 21 (1988).
A. The First Nine Exceptions
The Arbitrator determined, and the Union agrees, that the grievance should be analyzed pursuant to the Supreme Court's decision in Bates. The Agency asserts that, as the grievant is a Federal employee, the grievance should be analyzed under the Court's decision in Connick. The Agency asserts, in the alternative, that if Bates applies, the Arbitrator interpreted Bates incorrectly. To evaluate these claims it is necessary, first, to set forth the Court's holdings in Bates and Connick.
In Bates, the Court held, as relevant here, that a disciplinary rule of the Supreme Court of Arizona prohibiting attorneys from advertising their services, including the prices at which those services were offered, violated the First Amendment. The Court considered, and rejected, arguments that such advertisements would: (1) adversely affect the professionalism of attorneys, the quality of legal services, and the administration of justice; (2) be inherently misleading; (3) result in undesirable economic effects; and (4) be difficult to enforce. The Court held that although the advertisements involved commercial speech, that speech "was entitled to the protection of the First Amendment." Bates, 433 U.S. at 363. The Court noted, in this regard, that "the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue[,]" and that commercial speech "serves individual and societal interests in assuring informed and reliable decisionmaking." Id. at 364 (citations omitted). The Court held that the state could not "prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services." Id. at 384.
The Court also held, however, that there were "'commonsense differences' between commercial speech and other varieties." Id. at 381 (quoting Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771 n.24 (1976)). In particular, the Court held that as "advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation." 433 U.S. at 381. Accordingly, the Court held that the constitutionality of a regulation involving commercial speech must be challenged on the basis of its application to particular speech, and not on the basis that it "might be applied unconstitutionally in circumstances other than those before the court." Id. at 380. The Court also noted that advertising that was "false, deceptive, or misleading" was subject to restraint, that reasonable restrictions could be placed on the "time, place, and manner of advertising[,]" and that advertising concerning "transactions that are themselves illegal obviously may be suppressed." Id. at 384.
In Connick, the Court addressed the issue of "whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs." Connick, 461 U.S. at 140. The Court noted, at the outset, that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Id. at 142 (citations omitted). The Court noted also that its task was "to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968) (Pickering)). The Court held that "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record[,]" 461 U.S. at 147-48, and that:
When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.
Id. at 146.
Having considered both decisions, we conclude, for the following reasons, that neither case, standing alone, is dispositive in this case.
First, advertising by attorneys constitutes commercial speech. See Bates, 433 U.S. at 363-64. See also Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 110 S. Ct. 2281, 2287 (1990) (Peel) (citing Bates, Court stated that "advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment."); Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1921 (1988) (Shapero) ("Lawyer advertising is in the category of constitutionally protected commercial speech."); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 (1985) (Zauderer) (in addressing whether state properly could discipline attorney for advertising, Court stated that although "the precise bounds of the category of expression that may be termed commercial speech[]" may be "subject to doubt, . . . it is clear enough that the speech at issue in this case--advertising pure and simple--falls within those bounds.").
Second, the grievant in this case sought and was denied permission to engage in commercial speech. We note that the record does not disclose an actual proposed advertisement by the grievant and, in fact, it appears that the grievant submitted only a request to advertise, as opposed to a request to publish a specific advertisement.
See Award at 7 (the grievant submitted a form "requesting permission to advertise a legal service, dealing with the procurement of uncontested divorces[.]"); Attachment 5 to Exceptions (grievant's request for permission to advertise stated that grievant intended to "advertise a legal service in one or more local newspapers[]" and that the "legal service consists of the procurement of an uncontested divorce."). Based on the record as a whole, however, it is clear, and we assume for the purposes of this decision, that the contested advertisement was intended solely to publicize the grievant's practice of law and solicit clients for that practice. See Award at 14 (grievant requested "to advertise his availability to process uncontested divorces at a specified fee . . . ."); Opposition at 4 (the grievant "believes that in order to attract his own clients, he must advertise his legal services."). As such, and as there is no contrary indication in the record, we conclude that the advertisement concerned "only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas, 447 U.S. at 561 (citations omitted).
Third, although Bates addressed the rights of attorneys to engage in commercial speech and the extent to which a governmental entity could regulate that speech, and the grievant is an attorney who sought, and was denied, permission to engage in commercial speech on the basis of a Government regulation, Bates and subsequent cases relying on Bates address governmental regulation of attorneys as attorneys. See also Peel; Shapero; Zauderer; In re R.M.J., 455 U.S. 191 (1982); and Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). Here, the Government seeks to regulate the commercial speech of attorneys as Government employees. As such, it is appropriate, in our view, to recognize "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment." Rankin v. McPherson, 483 U.S. 378, 384 (1987) (Rankin). See also Williams v. Internal Revenue Service, No. 90-5078 (D.C. Cir. Nov. 20, 1990) (Williams) (discipline of Agency attorney for attempting to prosecute a class action, without obtaining prior approval under an Agency regulation, did not violate attorney's right to free association).(2) Consequently, although Bates would appear to apply to the case now before us, we are unable to conclude that Bates is dispositive.
Fourth, for similar reasons, we conclude that Connick is not dispositive. Although it is clear that, as pointed out by the Agency, Connick addressed the First Amendment rights of public employees, Connick did not address the rights of public employees in the context of commercial speech. Instead, Connick addressed the rights of public employees to participate in and speak on matters of noncommercial, public interest. See Connick, 461 U.S. at 145-46 (in addressing discharge of a state employee for circulating a questionnaire concerning internal office affairs, the Court stated that "speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection.") (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) and Carey v. Brown, 447 U.S. 455, 467 (1980)). Similarly, other cases relied on by the Agency in this connection address the constitutional rights of public employees in a noncommercial speech context only. See Rankin, 483 U.S. at 386 (Court held that county employee's remark about an attempt to shoot the President "plainly dealt with a matter of public concern."); Pickering, 391 U.S. at 571 (in addressing discharge of a teacher for writing a letter to a local newspaper concerning proposed tax increases, Court noted that "the question whether a school system requires additional funds is a matter of legitimate public concern . . . .").
As noted previously, the Supreme Court has recognized that there are "'commonsense differences' between commercial speech and other varieties." Bates, 433 U.S. at 381 (citation omitted). In particular, commercial speech "occurs in an area traditionally subject to government regulation," and the "Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." Central Hudson Gas, 447 U.S. at 562-633 (citations omitted). See also Zauderer, 471 U.S. at 637 (the protection afforded commercial speech by the Constitution is "somewhat less extensive than that afforded 'noncommercial speech.'") (citations omitted). Moreover, the tests for determining the constitutionality of regulatory restrictions on commercial speech differ from the tests applicable to restrictions on other speech. Compare Central Hudson Gas, 447 U.S. at 566 with Rankin, 483 U.S. at 388.
In addition to the differences between commercial and noncommercial speech, however, there are differences between the First Amendment rights of public employees and those of other persons:
The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language, reiterated in all of Pickering's progeny, reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government offices could not function if every employment decision became a constitutional matter.
Connick, 461 U.S. at 143 (footnotes omitted).
Bates addressed only the commercial speech of nonpublic employees and Connick addressed only the noncommercial speech of public employees. The protections afforded speech under the First Amendment differ based on whether the speech is commercial and whether the speaker is a public employee. We conclude, therefore, that neither Bates nor Connick is dispositive here. Neither party provides, and research fails to disclose, judicial precedent discussing the commercial speech rights of public employees. As such, it is appropriate and necessary, in our view, to analyze the grievant's rights in this case in a manner which preserves, to the extent possible, what appear to be the significant elements of both the commercial and the public-employee speech cases.
We note, in this regard, as does the Agency, that subsequent to the Court's decision in Bates, the Court set forth the following analytical framework to be used in commercial speech cases:
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Central Hudson Gas, 447 U.S. at 566. See also Posadas de Puerto Rico Assoc. v. Tourism Co., 478 U.S. 328, 340 (1986) (Posadas de Puerto Rico) ("Under Central Hudson, commercial speech receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not misleading or fraudulent. Once it is determined that the First Amendment applies to the particular kind of commercial speech at issue, then the speech may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that interest.")(citation omitted).
In our view, the four-prong test set forth in Central Hudson Gas for determining the constitutionality of regulations involving the type of speech involved in this case provides sufficient flexibility so as to encompass the grievant's status as a Federal employee. In particular, two prongs of the test relate to the nature and extent of the governmental interest in regulating commercial speech, and the extent to which the disputed regulation directly advances that interest. We find no reason, and none is asserted, that the Agency's interest as employer, and the grievant's status as public employee, may not be considered in applying these prongs. We will, therefore, apply the Central Hudson Gas four-prong test, with due regard for the Agency's interests, in this case.
The first prong of Central Hudson Gas requires a determination as to whether the commercial speech concerns a lawful activity and whether it is misleading or fraudulent. It is clear, and not disputed, that the grievant's legal services, and the grievant's advertisement thereof, are not fraudulent and involve lawful activities.
Moreover, we reject the Agency's contention that the proposed advertisement would be misleading because the rules of the legal profession preclude the grievant from advertising his availability to provide services involving uncontested divorces. We note, at the outset, that it is not clear that professional rules applicable in the jurisdiction in which the grievant practices law constitute rules or regulations within the meaning of section 7122(a) of the Statute. See Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898, 902 (1990) (the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes is not a law, rule, or regulation, within the meaning of section 7122(a), on which exceptions to arbitration awards may be predicated).
More importantly, however, the Agency has not demonstrated that the disciplinary rules applicable in the jurisdiction in which the grievant practices prohibit the grievant's advertisement of legal services in connection with uncontested divorces. In fact, the "only services that lend themselves to advertising are the routine ones: the uncontested divorce, . . . and the like . . . ." Bates, 433 U.S. at 372. See also Zauderer, 471 U.S. at 638 ("rules preventing attorneys from using nondeceptive terminology to describe their fields of practice are impermissible[.]") (citations omitted). Although the Agency asserts that the grievant could not advertise "uncontested divorces without tax consequences . . . ," without violating applicable rules, there is no evidence that the grievant sought permission for such an advertisement. Exceptions at 18. Instead, the grievant sought permission to advertise his availability to provide legal services in connection with uncontested divorces. See Attachment 5 to Exceptions (grievant stated his intention "to advertise a legal service in one or more local newspapers. The legal service consists of the procurement of an uncontested divorce."). The Agency does not assert, or establish, that such an advertisement is impermissible. Moreover, there is no indication in the record that the grievant sought to advertise that he was a specialist in the area of uncontested divorces, or held special certifications to practice law in that area. See generally Peel, 110 S. Ct. at 2287-92. Accordingly, we reject the Agency's argument that the grievant's proposed advertisement is prohibited because the grievant has not been certified as a specialist with respect to uncontested divorces. See id. at 2289 n.12 (Court noted that American Bar Association Model Rule of Professional Conduct 7.4 does not prohibit an attorney from advertising that his or her practice "is limited to" or is "concentrated in" an area of the law).
With respect to the latter point, we note, as we did previously, that it is not apparent that the grievant ever offered, or the Agency ever reviewed, an actual proposed advertisement and no such advertisement is before us in the record of this case. The issue before us, therefore, is not whether the Agency properly denied the grievant permission to advertise based on the wording of an advertisement or the extent to which an actual advertisement allegedly was inconsistent with applicable rules in the jurisdiction in which the grievant practices law. Instead, the Agency denied the grievant permission to advertise at all, without regard to the content of the advertisement.
We note also, in this regard, that the Agency first asserts that the "grievant may limit his work to uncontested divorces without tax consequences but he could not advertise that his field of practice is so limited without violating" a disciplinary rule of the legal profession. Exceptions at 18. The Agency also asserts, however, that the grievant's proposal to "advertise 'uncontested divorces' for a fee . . . would mislead and not inform the public of the crucial fact that grievant was not prepared to consider any matter remotely involving taxes." Id. at 24. That is, the Agency asserts both that the grievant's advertisement is too narrow (for the disciplinary rule) and not narrow enough (to avoid being misleading).
It is clear that, consistent with the Agency's actions and arguments, as well as the blanket ban on advertising in the Agency's rule, the Agency's position is that there is no advertisement the grievant could propose which would be both consistent with applicable rules and not misleading. We cannot, on the basis of the record before us, sustain this argument. See Bates, 433 U.S. at 374 ("Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision."). See also Peel, 110 S. Ct. at 2292 (Court stated that even if it assumed that inclusion of attorney's certification by National Board of Trial Advocacy on business stationery "may be potentially misleading to some consumers, that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public."). We conclude that under the first test in Central Hudson Gas, the grievant's proposed advertising is not unlawful, fraudulent, or misleading.
The next two prongs in the Central Hudson Gas test require determinations of (1) whether the governmental interest in restricting the commercial speech is "substantial[;]" and (2) whether the restrictions "directly advance[] the asserted governmental interest." Central Hudson Gas, 447 U.S. at 566. See also Zauderer, 471 U.S. at 638 ("Commercial speech that is not false or deceptive and does not concern unlawful activities, . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest."). As noted earlier in this decision, it is appropriate, in our view, to consider, in applying these prongs of the test, the fact that the grievant is a Federal employee and is subject to the Agency's rule prohibiting advertisement only because the grievant is the Agency's employee.
The Agency asserts that the following interests are served by its rule:
Rule 225.2(2) was written to address the substantial interests of the Service, foremost of which is the public's right to competent and full legal representation on all matters including tax questions, and not the least of which is the impact or potential impact of the public's views of such outside legal practice by Service employees.
Exceptions at 19. See also id. at 25 (Agency asserts that "[f]oremost" among the objectives of the rule is "that the public be well-served."). The Agency also asserts that in adopting the rule, the Agency "sought to restrict the underlying conduct, outside legal employment, by the least intrusive means." Id. at 19.
With respect to the Agency's interest in restricting the grievant's speech, we note, in agreement with both parties and the Arbitrator, the Agency's compelling interest in adopting rules of conduct for its employees to ensure that their outside employment does not conflict with the Agency's mission. See Opposition at 11 (Union "agrees that the [Agency] has a compelling interest in ensuring that the outside employment of [Agency] employees does not conflict with the mission of the Agency."). We conclude, without hesitation, that the Agency's interest in eliminating or reducing such conflicts is substantial. See Williams, No. 90-5078, slip op. at 4 (court noted the Agency's "interest in efficiency and avoiding the appearance of impropriety.").
We note also, however, that the Agency has already approved the grievant's request to engage in outside employment. That is, the Agency has already determined that the conduct about which the speech is involved--the grievant's outside practice of law--does not present a conflict or apparent conflict of interest.
The Agency asserts, in this regard, that this case involves a "mixed question of speech and conduct." Exceptions at 25. We agree, noting that the disputed rule conditions the approval of employee attorney requests to practice law outside the Agency on the ban on advertising. As noted previously, the Agency has substantial interests in restricting, or regulating, the conduct involved here. The Agency does not specify, however, and it is not clear from the record, how the ban on speech would restrict the conduct. Put simply, we are unable to determine the connection between the Agency's interests in eliminating or reducing conflicts, or appearances of conflicts, of interest and the Agency's ban on otherwise protected commercial speech involving conduct which, consistent with the Agency's own actions here, does not present such a conflict.
Moreover, although we find the Agency's interest in advancing the public's right to competent and full legal representation laudable, we fail to discern, and the Agency has failed to establish, how a ban on advertising previously-approved activities furthers that interest. Presuming that the grievant's proposed advertising would be effective in attracting clients, a ban on that advertising reasonably would affect the quantity of the grievant's outside practice. Nothing supports a conclusion, however, that the ban would affect the grievant's competence as an Agency or a private attorney, or the public's right to competent representation. Moreover, as the grievant noted expressly in his request for permission to advertise that he would not "in any manner advertise or make it known that [he] work[ed] for the Service . . . ," the Agency does not assert, and it is not otherwise clear, how the ban would affect the Agency's interest in the public's views of outside legal practice by its attorneys. Attachment 5 to Exceptions. Finally, even if the grievant's advertisement would increase the number of clients the grievant could not represent, because of a conflict or the appearance of a conflict of interest, there is no assertion that the grievant would not act ethically in advising any potential client that the grievant was unable to provide legal services if providing such services would result in such a conflict. See Bates, 433 U.S. at 379 ("We suspect that, with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system.").
Accordingly, with respect to the second and third prongs of the Central Hudson Gas test, we conclude that the Agency has not demonstrated substantial interests in restricting the grievant's speech. Even assuming that the Agency's interests in regulating the grievant's speech are substantial, however, we are unable to conclude that the regulation directly advances those interests.
In reaching our conclusion, we acknowledge the need, in cases involving public employees, to balance the grievant's interests "against 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Rankin, 483 U.S. at 388 (quoting Pickering, 391 U.S. at 568). Indeed, consistent with the Agency's interests as employer, it is not necessary, in applying the second and third prongs of the Central Hudson Gas test, that the Agency demonstrate interests as substantial as those otherwise required. Nevertheless, the Agency has not demonstrated how the blanket ban on the advertising involved here affects its interests as employer or promotes the efficiency of its public services so as to outweigh the grievant's First Amendment rights to engage in commercial speech. The Agency has not, in this connection, identified how the blanket ban would further its asserted interests in the public's perception of the Agency, eliminate or reduce conflicts of interest or the appearance of such conflicts, or safeguard and promote its interests in the public's access to full and competent representation.
In view of our determinations regarding the second and third prongs of the Central Hudson Gas test, it is not necessary to address the fourth prong of the test. Nevertheless, we conclude that even assuming that the Agency has established a substantial interest in banning the commercial speech involved here and that the regulation directly advances that interest, the Agency has not demonstrated that its rule is no more extensive than necessary to serve its interest. The rule bans all advertising of all attorney employees relating to all outside legal activities in all circumstances. Neither the particular work performed by particular attorneys, nor the particular advertisement proposed, is relevant for purposes of the rule. To find that the rule is not more extensive than necessary, therefore, requires a determination that nothing short of a complete ban would suffice to protect the Agency's interests. There is no basis on which to make that determination in this case.
We note, in this regard, that the Arbitrator rejected the Agency's contention that advertising by the grievant constituted a "clear inference of real or apparent conflict of interest." Award at 15. In fact, the Arbitrator found that the "Agency did not show what harm, if any, could redound to the Agency by such advertising . . . ." Id. at 16. There is similarly nothing in the record before us which demonstrates that the Agency has a need to ban either all advertising by all attorneys or the grievant's proposed advertising in this case. We emphasize again that the Agency's rule permits the outside practice of law. As such, a ban on all commercial speech involving conduct which has been approved by the Agency is, in our view, more extensive than necessary. See Peel, 110 S. Ct. at 2291 (Court found rule restricting attorney advertising "'broader than reasonably necessary to prevent the' perceived evil.") (citations omitted).
Finally, with respect to the latter point, we note the Agency's argument that, consistent with the Court's decision in Posadas de Puerto Rico, it is "constitutionally acceptable to ban advertising as a lesser restriction when the alternative was to ban the underlying conduct[.]" Exceptions at 26. In Posadas de Puerto Rico, the Court upheld certain regulations restricting the advertising of gambling to the public in Puerto Rico. 478 U.S. at 348. The Court held, applying the four-prong Central Hudson Gas test, that as relevant here, the "interest at stake . . . is the reduction of demand for casino gambling by the residents of Puerto Rico." Id. at 341. Noting the Puerto Rico Legislature's "belief that '[e]xcessive casino gambling among local residents . . . would produce serious harmful effects on the health, safety and welfare of the Puerto Rican citizens," the Court held that the "Puerto Rico Legislature's interest in the health, safety, and welfare of its citizens constitutes a 'substantial' governmental interest." Id. In applying the third prong of the Central Hudson Gas test, the Court held also that the challenged regulations directly advanced the government's asserted interest. Finally, stating that the Puerto Rico Legislature "surely could have prohibited casino gambling by the residents of Puerto Rico altogether[,]" the Court held that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling[.]" Id. at 346.
As stated previously, we conclude that even assuming that the Agency has a substantial interest in banning the grievant's commercial speech involved in this case, the ban does not directly advance the interests asserted by the Agency. We find nothing in Posadas de Puerto Rico which would lead us to a contrary conclusion. As such, the Court's discussion of the fourth prong of the Central Hudson Gas test is not relevant here. Moreover, the Agency does not assert, and we have no other basis on which to conclude, that the underlying conduct involved in this case (the restricted and regulated outside practice of law) is so akin to the underlying conduct (casino gambling) involved in Posadas de Puerto Rico that, even in the absence of our conclusions regarding the second and third prongs of the Central Hudson Gas test, the Court's discussion of the fourth prong mandates a conclusion that the Arbitrator's award conflicts with law.
In sum, we conclude, under the Central Hudson Gas test, and consistent with the Agency's status as public employer, that the Agency has not shown that the Arbitrator violated applicable law by holding that the grievant's First Amendment rights were violated by the Agency's refusal to permit him to advertise his previously-approved outside practice of law.
B. The Tenth Exception
Finally, the Agency excepts to the Arbitrator's "remedy," which "directs the Agency to meet with the Union to reformulate [its rule concerning lawyer advertising] in accordance with applicable law." Exceptions at 28. The Agency asserts that if the rule is not constitutional, "it is the Agency's right to chose [sic] the method by which the constitutional objections will be overcome, unless the Union initiates bargaining over the issue." Id. at 29. The Agency acknowledges, in this regard, that its rule "is a condition of employment subject to negotiation." Id. at 27.
In our view, the Agency misinterprets the Arbitrator's award. The award states that "[t]he Agency is directed to review, and afford the Union an opportunity to meet and discuss Rule 225.2(2) and reformulate its provisions consistent with the constitutional bar to a blanket prohibition on all advertising of legal services by attorneys." Award at 18. Nothing in the award requires the Agency to reformulate, or propose reformulation of, the rule in a particular way. Instead, consistent with the Agency's acknowledgement that the regulation constitutes a condition of employment which is subject to bargaining, the parties are free, under the award, to pursue their interests through bargaining. Accordingly, we reject the Agency's exception that the Arbitrator exceeded her authority by requiring the Agency to allow the Union to participate in the reformulation of the rule concerning advertising.
V. Decision
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Section 225.2 of the Agency's Rules provides:
Outside employment and legal activities may be approved provided that employees may not advertise nor be affiliated with a firm and the activity is not remotely involved with tax law. For example, adoptions, title searchs [sic], law clerkships, and all legal services to immediate family are not considered to be involved with tax law.
Award at 5-6.
2. The court stated that the Agency rule involved in Williams was Rule 222.5. Slip op. at 2. As the court did not quote the rule, however, and as the copy of the Agency's rules provided in the record of this case does not contain a rule so numbered, we are unaware of the wording of the rule in dispute in that case. Attachment 2 to Exceptions.


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Clean, Simple Beauty: Duvet Covers from Rough Linen
We adore linen— the rumpled, easy look and definitive texture. Tricia Rose, the designer behind Rough Linen's line of breezy linen duvet covers and cushions, has always been drawn to natural fabrics like wool, cotton, and linen for their timeless beauty, and this small collection is no exception.
The Orkney duvet collection is defined as "rough natural linen with a homespun feel" and features duvet covers, bed skirts, and shams, finished with crisp white button enclosures (although you can request other buttons as well). The line also includes cushions.
The St. Bart's duvet collection is made with a finer, lighter linen in a variety of colors, like pale blue, burnt orange, and yellow.
What about the wrinkles, you ask? Just part of the charm in our view. Our sheets are always wrinkled when they come out the dryer anyway, so why not just work with that?
Prices for the duvet covers start at $300 for a queen, which is out our price range, unfortunately, but we can and will aspire to this look in our bedroom. See more at Rough Linen.

subset: commoncrawl


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For all of their talk of the Post-PC Era, Apple sure did wow a lot of people today with the unveiling of their new laptops. The Macbook Air refresh and the Macbook Pro refresh may have paled in comparison to the impressive new Retina Macbook Pro, but there was still plenty going on there to keep those laptops relevant. In many ways, Apple's $2100+ MacBook Pro has created a new class of device, since there aren't any other laptops right now that can go feature-for-feature with it.
The Macbook Air line will be plenty busy competing with the coming wave of Ultrabooks, many of which are shaping up to offer very similar hardware in very similar form factors. Even still, there are a few critical areas in which the Macbook Air line will stand out among the competition.
USB 3.0 ports
Apple's move to Thunderbolt last year left many wondering how long it would be until the company decided to support USB 3.0. As it stands right now, we've still yet to see any huge adoption of Thunderbolt, but more devices every day are being announced and released with USB 3.0 support. Now as opposed to relying solely on Thunderbolt — which is expensive and still rare — for high speed external connections, Apple has added USB 3.0 to its products. It may be a relaxation of their standards (see: FireWire) but it will be much more usable than Thunderbolt for the foreseeable future.
So, yes, many Ulrabooks do have USB 3.0, but it's no long an advantage they have over the MacBooks.
Up to 768GB SSD storage
The key thing to remember about Ultrabooks is that are all competing to get the lowest price without losing key points in processor speed, design, and battery life (as determined by Intel). To do so, one area that most of these devices tend to fall ever so short on is storage space. The 128GB SSD is pretty much where it's at for most of these devices, and unfortunately that's really just not enough for many users. While, yes, you can purchase and install a larger drive, or just buy and external one, being able to offer multiple drive sizes in different price points is a powerful thing.
The refreshed MacBook Air lineup offers a maximum of 512GB of storage, but the next generation Mac Book Pro goes up as high as 768GB. You pay a premium for the extra storage space, and if iPad sales have taught us anything it's that most people will go for the cheapest possible option, but that does not account for everyone.
Apple is banking on there being plenty of users out there who need plenty more than 128GB of storage, and I think it's a great bet to make.
Next generation Macbook Pro Retina Display
This pretty much goes without saying, but the idea of a Retina quality display on a laptop is pretty insane. While many laptops out there, including all of the other Apple Macbooks out there are shooting for around 1440×900, Apple has absolutely blown past that. It's not a surprise, and it will probably be a year at least before Apple is able to offer that screen quality on their other laptops without affecting the base price model, but it sends a clear shot across the bow of every Ultrabook, laptop, tablet, and hybrid notebook out there. The next year will certainly be a mad dash in display technologies as the likes of Samsung, HP, Toshiba, Asus, and plenty others try to have competing devices out before the Macbook refresh next year.
Standard Macbook included features
It's easy to sit here and talk about all of the new things that Apple has strapped into the new Macbooks, but it is also important to keep in mind that many laptop and Ultrabook manufacturers have yet to compete with existing features that Apple has had in their laptops for ages. The two biggest that stick out in my mind are the MagSafe (and now MagSafe 2) power adapter, and the backlit keyboard. There have been some laptops in recent memory that have offered up a backlit keyboard, but usually these either only burn at one brightness, or the keyboard brightness has to be adjusted manually. They are often an optional feature, as well.
As for the magnetic power adapter, which is in my opinion Apple's greatest feature, has yet to be put in any major laptop or Ultrabook. The most common point of failure in any of my laptops in the past has been the power cord. Some tragedy struck that ripped the power cord out of the socket, permanently damaging the device. These features offer a clear dividing line between Macbooks and "everyone else".
Available today
I was really impressed by many of the devices that were announced at Computex last week. There were a few Ultrabooks with touch screens and Windows 8 that really impressed me, and were added to my list of devices to consider purchasing. Over the next few months before those devices are brought to the states, I'll be given at least a dozen other opportunities to consider other devices that will be announced. If you pay attention to device releases, you'll end up playing a constant waiting game because the next greatest machine will be announced tomorrow. Apple removed the wait and removed the decision making time, by making the new line of machine available to ship today. You can walk in to any Apple Store, or head right to their website, and order one of these machines and probably have it delivered by the end of the week. Engaging the impulse buyer is a truly powerful tool to wield, and Apple did so very gracefully.
Final thoughts
In the end, Apple has accomplished something great today, and the Ultrabook manufacturers will need to step up their game if they expect to compete. In a world where many consumers are driven purely by price, the Ultrabook manufacturer will be able to scrape the bottom line and beat out Apple. In a world where the consumer is educated, and interested in a quality product, the refreshed Macbook line is compelling. Additionally, Apple has brought attention back to the high-end laptop, which once sat gargantuan machines like the HP Dragon or the Alienware line of machines. Apple's competition now has to choose between focusing on the price obsessed consumer, or focusing on the quality focused consumer.


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GraphicRiver Metal & Grunge 10 Texture Backgrounds Pack 2 7806236
Category: Stock Graphic | Comment: ( 0 )
GraphicRiver Metal & Grunge 10 Texture Backgrounds Pack 2 7806236
Stock Graphic \ Backgrounds
Rough \ Peeled \ Orange \ Metal \ Moody \ Rust \ Scratches \ Texture \ Yellow \ Surface
Stock Graphic - Metal & Grunge 10 Texture Backgrounds Pack 2 7806236 by Prudkov @ GraphicRiver
Stock Graphic \ Backgrounds
Graphics Files Included: JPG Image; High Resolution: Yes; Layered: No; Minimum Adobe CS Version: CS; Pixel Dimensions: 3000x2000; Print Dimensions: 10x6.67.
This pack No.2 contains 10 high resolution jpg metal and grunge texture backgrounds for your projects.
These grunge backgrounds are excellent for representing and creating moody, creepy and eerie atmosphere.They are also perfect for movie, vampire and Halloween themes. This is the second small pack I designed and more should come soon
Pixel Dimensions: 3000×2000; Resolution: 300 DPI
Diagonal Motion - 10 Abstract Backgrounds Pack 3; Rays Of Light - 10 Abstract Backgrounds pack 1.
Keywords: abstract, background, blue, cracks, creepy, dark, decay, design, eerie, effects, element, graphics, grunge, horror, illustration, lines, metal, moody, orange, peeled, red, rough, rust, scratches, smear, smudge, spooky, surface, texture, yellow.


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No one wants to eat a chocolate bar that has been passed around and touched by everyone right? So you girls better keep this in mind when you are thinking about losing your virginity before marriage. No one wants something "thats used". Sorry if you weren't quite able to catch the sarcasm in those sentences, and I'm looking at you Mississippi, who thought that this idea was the perfect way to teach abstinence only Sex Ed to children. Right.... hows that working out for you?
FYI Mississippi, statistics show that 76% of your high schoolers will have sex before they graduate. The horror!!!! So, instead of trying to teach your kids abstinence only Sex Ed (which clearly isn't working), you should instead try to be a positive influence for your youths health. The idea of teaching children, especially teenagers, that having sex will make them dirty, used and disposable, will only distort the idea that people, especially women, who have had sex, are worthy of just as much respect as those who are still pure. Do these adults not see the problem in that?
Lets go even further and discuss the other examples Mississippi has used to compare their less then pure students. They are referred to as, used toothbrushes, chewed up pieces of gum, and candies that can be spit out. How in the hell does a person equate to a disposable piece of candy?
But lets look at this rationally; a piece of gum only last for a few chews right? After around 10 minutes that gum loses it flavor, becomes too hard, and needs to be tossed out. Looks like you boys are on a time limit during the honeymoon. You have 10 minutes tops, 15 if you really push it. After that your lovely wife is considered used. Sorry, enjoy the rest of your married years looking up internet porn. Also has the thought of victims of sexual violence even crossed everyones mind? Women who are raped now have to suffer sitting through a class as they are called used, when they had no choice in the matter!
But really, this type of sex ed seems to do more harm then good. Thankfully a group of mothers agree. They have become known around the district as "the Sex Moms" and they have already ended the "dirty chocolate" lessons in at least one school. Thank God for mothers with their heads on their shoulders. Their kids might stand a change now.


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Billy Wright 105 caps
v Scotland, April 11 1959
England 1 Scotland 0 (Wembley Stadium)
The first player to reach the milestone did so in in a Home Championship match against Scotland. Wright's defensive qualities were not severely tested in a game England dominated and would have won by more but for some inspired goalkeeping from Bill Brown. Fittingly the winner came from Bobby Charlton, the next England player to join the 100 club. At the end Wright was given a standing ovation and carried off the pitch by his team-mates
Bobby Charlton 106 caps
v Northern Ireland, April 21 1970
England 3 N Ireland 1 (Wembley Stadium)
The Manchester United player was given the honour of captaining England before a full house of 100,000 and he capped a typically imperious midfield display with a goal, sliding in to beat Pat Jennings at the far post. His United team-mate George Best scored a fine individual goal for the visitors but Martin Peters and Geoff Hurst ensured an England victory as they prepared to go to Mexico to defend the Jules Rimet trophy
Bobby Moore 108 caps
v Scotland, February 14 1973
Scotland 0 England 5 (Hampden Park)
England's World Cup-winning captain enjoyed one of the easiest nights of his international career in this friendly at the start of a year that turned sour for him against Poland in Chorzow that June. Moore, Martin Peters and Alan Ball were the only survivors from the boys of '66 but it was the new guard who did the damage in this Valentine's Day mauling with Allan Clarke (2), Martin Chivers, Mick Channon and an own-goal making up the goal total
Peter Shilton 125 caps
v Holland, June 15 1988
England 1 Holland 3 (Rheinstadion)
This turned out to be an afternoon to forget for Shilton although he bore little responsibility for the Marco van Basten hat-trick that sent England crashing out of the 1988 European Championship in their second group game after they had lost their opening match to the Republic of Ireland. England's manager, Bobby Robson, dropped Shilton for the final group game but the goalkeeper remained No1 and played a key role in the 1990 World Cup in Italy


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I'm sitting at Gate 15 of Edinburgh Airport as I write this, waiting to board my flight back to Dublin. Next to the little Aer Lingus prop aircraft that'll bring us home is a large grey RAF troop carrying aircraft. There's three buses parked alongside and as I sat down the last of what I assume were young Scottish troops were boarding. Bound one assumes for unpleasant duty in any one of a number of global scrapes the United Kingdom is embroiled in.
How different that all might have been today. Even on the No side I didn't detect any huge enthusiasm for Britain's military adventures overseas. But that is not the way the Independence debate was framed.
Fear works. As a political tool its value has proven immeasurable to the Unionist parties. And that was those parties greatest success. Making a vote on self determination a vote about fear. Fear of the unknown, fear of change, and that deep seated fear in all of us that maybe we're just not competent enough to do the job ourselves.
IPSOS/MORI polled Scots on their reasons for voting before going to the polls. It was striking that 80% voting yes did so out of a sense of hope whereas 58% of No voters were in their own words driven to the polls by fear.
"You're Irish? I cannae hold my head up in yir company. I'm so angry that we didnae have the guts to fail on our own like you", said one man yesterday morning just an hour or so after it became clear how sizeable the silent majority was. And how spectacular our failure has been in recent years I prompted him. "Dinnae matter, would ha' been worse if somebody else had inflicted it on you."
If all but one of your newspapers, a long line of business leaders, the machines of all the major political parties tell you something is to be feared chances are fear will colour your decision making. And it is striking now how yes campaigners realise how they were totally outclassed and outgunned by The Machine, that informal coalition of governing parties and business interests. Duly assisted by a media that reflects those priorities more prominently than others.
It was one of those lucky privileges that my job affords me to have been in Scotland to the energising of the country by a debate on what it means to be who you are. My last conversation before leaving today was with a 41 year old Taxi Driver who had never voted in his life before Thursday. He was well informed, taught me lots in twenty minutes, but just never saw the point in voting in Westminster elections when he knew he would always be unrepresented in the make up of the government.
In the drug and unemployment blighted suburb of Niddrie I spoke to young men who had never had a single days work since leaving school never mind having not voted before. They were passionate and convinced of their arguments. They were also flattered that for the first time ever their opinions counted for something. This debate delivered a super charge of civic mindedness, dynamism and inclusion to the Scottish national grid.
But the Westminster consensus has put the matter of Scottish independence back in a box. I've met and interviewed Nicola Sturgeon, she is a seriously impressive person. But she faces a Herculean task getting independence back on a ballot paper during her political lifetime. My colleague in The Irish Independent, Kim Bielenberg, was asked by an official in the Holyrood parliament if he was going to be there tomorrow. "Nobody is going to be here tomorrow", was his brutally frank reply. The travelling circus has folded its tent and moved on. Scotland's moment has passed, and won't likely come again while anyone reading this draws breath.
There are two things about this campaign we might consider taking on board back at home. Telling 16 and 17 year olds they're too immature to give proper consideration to electoral matters does us a disservice and infantilises them. Adults in Scotland were forced to listen to newly enfranchised teens and argue by persuasion not virtue of seniority. I ear wigged the bus stop conversations of loads of school kids during this campaign and was very impressed. The experience undoubtedly matured them and if some of them were swayed by arguments as superficial as which way Andy Murray did or didn't vote how many adults must the same thing be true of.
The other thing … 86% turn out was achieved without a single politician's mug staring down at you from a lamp post. Not a single poster on any form of public property. On this we can only hope Scotland will lead the way.


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How to Add a Printer
If your computer is enrolled with the university, open the Self Service application. Navigate to the queue name of the printer that you are trying to install and download the appropriate driver. This will automatically update the printer queue with the necessary drivers and applications.
Please call the OTIS HelpDesk at (215)717-6677 to have an OTIS staff member assist you.


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Discussion in 'General Global Topics' started by Gunny, Jul 16, 2008.
more ... Uribe: Betancourt rescuers used Red Cross - CNN.com
Good we should do it more often if it works. They don't play by any rules, neither should we. On top of that the Red Cross should be telling legit Governments what it knows about terrorists anyway.
Remind me how the red cross helped with our kidnapped and murdered soldiers? Or any of those kidnapped by terrorists.
Separate names with a comma.


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A Tenchi Muyo! spamfic
by Shade
Disclaimer: Tenchi Muyo!, its characters and settings, © Hitoshi Okuda, AIC / Pioneer LDC, and Viz Communications, Inc.
Once upon a time there was an evil pedophile.
One day this most evil pedophile decided to visit the house of one Tenchi Masaki.
Upon breaking into the house, the reviled one grabbed the cute and innocent Princess Sasami of Jurai. So intent on the doing of vile deeds was he, that the pedophile forgot that the Princess was not the only one in the house.
A fact that was immediately made clear when Azaka and Kamidake proceeded to capture him in their force fields and bombard him with 10,000 Gigawatts of electricity.
The quite singed pedophile managed to stumble outside, where Ryoko and Ayeka were waiting, having come to a temporary truce.
Ayeka summoned her royal force field and demonstrated how to make a naughty tentacle attack on a male.
Ryoko settled for good old-fashioned high intensity energy beams.
The now rather beaten and much burned pedophile then discovered that Ryo-ohki was rather peeved at him for trying to attack her friend when she appeared overhead in battleship mode and let loose a full broadside.
A Giant Tanuki Statue that crushed the mangled pervert a moment later let him know that Little Washu wasn't pleased either.
Then Tenchi summoned forth the Three Wings of the Light Hawk and got medieval what was left of the pedophile.
When Mihoshi finally arrested him, the remains of what had once been an abnormal human being started thanking his lucky stars, believing that the hurting would stop.
That stopped when the Detective First Class accidentally shot him with her giant laser bazooka.
Whimpering in agony, the much-abused pedophile wondered how things could get any worse.
That's when he found out that he was being sent to Funaho and Misaki, Sasami's mother.
And the one soon to be experiencing a fate much worse then death started to scream and scream.
And there was much rejoicing.
The End
—Shade (Who really enjoyed writing that)
|Layout, design, & site revisions © 2005
Webmaster: Larry F


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What if Narendra Modi becomes PM?
By M Ghazali Khan, The Milli Gazette Online
Published Online: Apr 30, 2014
A very nihilistic and self-destructive thinking appears to be taking over some Muslims. "So what if Modi comes to power? What is it that secular parties have not done to us?," they ask.
This logic and unthoughtful equation of BJP with other political parties would have made some sense if the issue was merely about anti-Muslim riots. But the problem is far more serious. As far as anti-Muslim riots are concerned, perhaps, as the experience shows, under Modi there will be complete peace and calm but this will be the tranquillity of a graveyard.
Although the Sanghis are masters of lies and deception, "Gujarat Experiment" has sharpened these skills even more. They use sectarian violence as a means to polarise the atmosphere, misguide innocent voters and grab power. Once in power, anti-Muslim pogroms are replaced by oppression of minorities and Hinduisation of schools and offices. Gujarat and other states where they have ruled in the past are glaring examples of it.
It's worth looking at some examples of how the saffron brigade has implemented Hindutva agenda in the past. In this regard it should be remembered that not only during the tenure of BJP Chief Minister Kalyan Singh was the Babri Mosque demolished in 1992 but in his second tenure in 1997 he also imposed the singing of Sarasvati Vandana and Vande Mataram in government schools and colleges, a practice no successive government has been able to reverse.
The practice of Muslims being forced to participate in Hindu worship has not remained confined to schools but has reached government offices too. This is how a friend working at a senior position has described the situation, "I have observed a practicing and beard-sporting Muslim head of a department taking part in inaugural ceremonies being started with Hindu worship. He had to light the lamp, break a coconut, accept prasad and put vermillion on his head etc. The secularism is just for name sake. RSS' Hindutva agenda has been gradually entering schools and offices. Muslim leadership is nowhere. It pains when we look towards the future of our younger generations vis-à-vis Islamic way of their lives."
In 2000, BJP's Chief Minister of Uttar Pradesh, Ram Prakash Gupta, created an atmosphere of terror and harassment. In addition to taking several extreme pro-Hindutva measures, he also tried to pass UP Religious Places Bill that would have made it impossible for Muslims to repair or make even minor improvements in a mosque or madrasa without the permission of a commissioner.
In 2001, a Report of Group of Ministers, headed by L.K. Advani, on "Reforming the National Security System" branded Indian Muslims as security risk. Following the commands of the Central Government, UP Government went a step further and issued a circular that said, "Every SHO will prepare a register of Muslims and Sikh families living in his perspective area; details of outsiders coming in his area should also be maintained and they be strictly watched…"
In 2003, when BJP was not even in absolute majority, Atal Bihari Vajpaee-led NDA Government honoured RSS leader V.D. Sarvarkar in Parliament and hung his portrait in the Central Hall leaving all the so-called secular politicians helpless and making feeble protests.
No matter how much one hates NarendraModi, the fact cannot be denied that he is an extremely clever and shrewd politician. He knows when to play a Hindu card and when to champion the cause of economic development. When it suited him, he cashed on the highly deplorable Godhra tragedy, allowed the parading of charred bodies of the victims of the so-called "Ram sevaks", let his foot soldiers go around and commit worst atrocities with impunity against ordinary citizens who had no role in the burning of Sabarmati Express. But when he needed and wished to control the situation, he did it in a remarkable manner even after as provocative an incident as the attack on Akshardham Temple and in the highly charged atmosphere of post-Gujarat massacre 2002.
For as long as he was content with the Chief Ministership of Gujarat, he continued to spew venom against Muslims, polarised the atmosphere, rode on a poisonous tide and succeeded in being elected as CM three times in a row. But as soon as he saw the dream of Prime Ministership, a desire impossible to achieve without Muslim voters' support, he turned secular. In 2002 he justifed the anti-Muslim pogroms in his state calling it a "reaction to an action," taunted Muslims saying "ham 2 hamare 25" [we are a couple; we have 25 children] and boasted his achievements saying, "We brought Narmada waters during shravan (monsoons), but the Congress would have wanted it in Ramzan."
However, in 2014 in his election rally in Bihar he lamented the economic and educational backwardness of Muslims who, he pitied, were as poor as not to be able to go to perform Hajj.
It should be remembered that the first-ever drama of ideological change and being Muslim-friendly was performed by the Sangh Parivar in the post-Emergency elections of 1977 after which L.K. Advani occupied the important post of Union Broadcasting Minister. During this period the Sanghis managed to penetrate government offices, occupied high offices, Hinduised the set-up and brainwashed the common man.
The impact of this brain washing was witnessed during Advani's so-called Ram Temple Movement in which retired senior police officers and bureaucrats participated. Joining of retired army officers in this fascist party, their involvement in anti-Muslim terrorism and the training provided by them to the so-called "karsevaks" to demolish the Babri Mosque, as has been exposed by Cobrapost, is before us all. The joining of BJP by persons like Mumbai Police Commissioner Satiya Pal Singh, Army Chief VK Singh and Union home secretary R.K. Singh immediately after their retirmement, is a sad commentary on the poison BJP and the Sangh Parivar has spread.
Those who have forgotten Advani's terror or were too young at that time to remember it, this is how the celebrated British writer William Darlimple had reported it from Delhi, "In the German winter of 1929 it was the political failure of the Weimar Republic and the onset of hyperinflation that ushered in the rise of National Socialists Party. In the winter of 1990 a similar course of events has brought to prominence the Hindu fundamentalist Bharatiya Janata Party (or BJP). In the 1984 election the BJP took only two seats. Last year they took 88. When Chandra Shekhar's rag-tag government falls…most commentators predict that the BJP will sweep the whole northern India… The man behind BJP's rise to power is L.K. Advani… BJP's revolution has been preceded by a mysterious distribution of tens of thousands of inflammatory cassettes… The cassettes openly encouraged anti-Muslim violence: 'Our Motherland cries out for succour, cries out for martyrs who will cut the [Muslim] enemies of the nation to pieces' says one I found in a market near my house. 'We cannot suffer anymore the descendants of Babur [founder of the Mogul dynasty]. If this means a blood bath, then let there for once be a blood bath…' In Delhi drawing rooms fascism has become fashionable; educated people will tell you without embarrassment that it is about time the Muslims are disciplined—that they are dirty and fanatical, that they breed like rabbits. While chattering classes chatter, others take direct action. As I write, Old Delhi is in flames as Hindus and Muslims battle it out in the streets". (The Spectator, 8 December 1990).
Like Modi refusing to apologise for Gujarat pogroms, Advani never expressed any remorse for his crimes and for leading frenzied mobs that torn down the Babri Mosque.
However, in the following years he adopted the posture of a moderate politician. In order to prove his secular and moderate credentials, he praised Mohammad Ali Jinnah and called him a "secularist" — a deadly sin also committed by his friend Jaswant Singh, for which both were made to pay — because that did not go well with the RSS.
Advani's effort to please Pakistan as well as Indian Muslims by praising Jinnah is also a proof of how the Sangh Parivar looks at Indian Muslims.
Worldwide condemnation of his 2002 pogroms, denial of visas by US, Germany and UKand denunciation by non-Hindutva masses of the country has taught Modi and his brigade that violence cannot help them for long.
If Modi comes to power, he will surely wear the mask of secularism and become even more moderate than he is pretending to be at the moment. He will try to act as holier than the holiest. However, behind this moderation, he will continue the Hindutva agenda with far more vigour than his predecessors. His post-Gujarat-pogroms experience and Congress's soft Hindutva, has taught him important lessons. Hard Hindutva sugar-quoted by soft-Hindutva will be far more dangerous than BJP's Gujarat or Muzaffarnagar experiments the impact of which will be felt throughout in the future.
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FAIRFIELD, Connecticut (Reuters) - U.S. authorities indicted three Credit Suisse AG private bankers, one a senior executive, on Thursday, toughening their stance against the bank for allegedly helping wealthy Americans to evade taxes.
Federal prosecutors in Alexandria, Virginia, filed criminal charges against Markus Walder, the former head of North America Offshore Banking and a former senior Credit Suisse executive; Susanne D. Rüegg Meier, a former manager; and Andreas Bachmann, a former banker at a subsidiary of the bank. Also charged was Josef Dorig, the founder of a Swiss trust company that worked with the bank.
While the charges did not name the bank in question, a government person briefed on the matter identified it as Credit Suisse.
Asked about the indictment, Victoria Harmon, a spokeswoman for Credit Suisse, said in a statement that "Credit Suisse is committed to a fully compliant cross-border business. Subject to our Swiss legal obligations and throughout this process we will continue to cooperate with the U.S. authorities in an effort to resolve these matters."
The four individuals were charged with conspiring to defraud the United States, the Justice Department and Internal Revenue Service by helping wealthy Americans to evade taxes. Walder, a managing director, was accused of, among other things, lying to the Federal Reserve Bank of New York in 2005 and 2007 and to the IRS about the bank's activities with U.S. customers and on U.S. soil.
The indictment signals an increasingly tough line by U.S. authorities against Credit Suisse, which has been under scrutiny for its tax evasion services for more than a year.
Last week U.S. authorities sent a target letter to Credit Suisse formally notifying it that it was under criminal investigation.
The charges were filed as a superseding indictment that adds to similar charges filed in February against four other Credit Suisse bankers. The original four are Marco Parenti Adami, Emanuel Agustoni, Michele Bergantino and Roger Schaerer.
With the new charges, Credit Suisse thus now has seven bankers who have been indicted. That is far more than Swiss bank UBS, which averted indictment in 2009 by agreeing to pay $780 million, admit to criminal wrongdoing; the bank later agreed to turn over 4,450 client names. Asked whether any of the seven bankers were still employed by Credit Suisse, Harmon, the Credit Suisse spokesman, declined to comment.
The defendants charged in the superseding indictment used a representative office in New York to provide unlicensed and unregistered banking services to U.S. clients, according to prosecutors. In addition, the charges said, Walder, Schaerer and others "allegedly made false statements and provided misleading information to the Federal Reserve Bank of New York and to the IRS in order to conceal the international bank's U.S. cross-border banking business and the role of the New York representative office in that business."
Dorig, who ran a trust company called Dorig AG, is accused of being a "preferred provider" for Credit Suisse and helping American bank clients open sham entities in other offshore tax havens to conceal their Credit Suisse accounts.
The pressure on Credit Suisse comes amid a collapse of talks between Bern and Washington aimed at resolving the wide-ranging investigation of a number of Swiss and other foreign banks, including HSBC, Europe's largest bank; Julius Baer, a private bank based in Zurich; and Basler Kantonalbank, a Swiss cantonal bank.
Robert Katzberg, a white-collar criminal defense lawyer in New York, said the superseding indictment "is clearly the U.S. government's response to the recent refusal of the Swiss to enter into a global settlement. Unfortunately for the Swiss, the U.S. is holding some really powerful cards."
The fresh indictment said that as of autumn 2008, the bank "maintained thousands of secret accounts for U.S. customers with as much as $3 billion." One client out of the 35 cited in the superseding indictment took $250,000 to Switzerland by concealing it in panty hose she wrapped around her body underneath her clothes.
Editing by Howard Goller


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This is a very theoretical blog post on how to use Karma and Protractor in a BDD fashion.
I recently finished reading BDD In Action by Johnathon Smart- a very awesome book on . In fact, it was this book was what really introduced me to BDD, gherkin, and step definitions. In the book he specifically talks about "switching over" your unit tests to acceptance tests whose low-level step definitions are implemented like unit tests. Indeed, on page 21 there is a section title that reads, "Don't Write Automated Tests, Write Executable Specifications". This is deep. Don't write automated tests isn't that what we are doing here?? Well yes, but when practicing BDD you want to think about it a different way. Let your Gherkin lead into your step definitions which naturally become a place to put the equivalent of the code for the unit test you might write otherwise.
It All Starts With The Gherkin
Using Gherkin is an incredibly powerful tool. It's english-like syntax makes it approachable and easily readable by anyone on the team, even non-technical members. The Given-When-Then style is basically a way of breaking up a unit test in three phases: setup, action, and assertion. This keeps your code modular, more maintainable, and in smaller chunks, but it also has the benefit of being more reusable as you can implement a given step once and implement it in many scenarios. The Gherkin allows you to write examples that illustrate how the software is to be used which is exactly what you want when writing automated tests (and just developing software in general!).
Enter CucumberJS
Cucumber.js is pretty much the tool for running Gherkin scenarios and step definitions in JavaScript. Simply run `npm i cucumber --save-dev` and you're off! You can run the cucumber binary, it'll look for your feature files, and execute them. Great! But actually it's not so great. In AngularJS there's some setup that needs to happen behind the scenes in order
"Cucumberizing" Your Tests
This is a term that I made up, and it basically refers to using the "cucumber version" of your web/ui tests or unit tests. In AngularJS, we have Protractor, an excellent JavaScript wrapper over Selenium WebDriver that lets you code fully automated ui/e2e tests. There also exists a Github project called protractor-cucumber-framework. This is an excellent framework that has been working well for me. To use this, all you have to do is change your protractor.conf.js file to use 'protractor-cucumber-framework'. Then in your step definitions you can call broser.get(..) and all the usual protractor commands will work. Similarly, you can "cucumberize" your unit tests by using a framework that combines karma and cucumberJS. This is important because in AngularJS you need the window available, and the Angular framework, injector, etc. must be set up in order to properly execute your tests for an AngularJS project. At the current time of this writing it's not as straightforward to find a great karma-cucumber library. There's "karma-cucumber" which says it's no longer maintained and redirects to "karma-cucumberjs" which also seems to be no longer maintained. The one I recommend now is karma-cucumber-js, a lower-starred project on Github, but it's active. Also, the core contributor eugene-sea assured me that he would maintain it and answer issues that I open. hehe.
BDD Without "Cucumberizing"
Towards the end of John Smart's BDD in Action, there is a section titled, "Practicing BDD with traditional unit-testing tools" (page 285). He recognizes that some teams may be unable or unwilling to cucumberize their tests. However, he gives some great tips for keeping a, "BDD state of mind" while using non-cucumberized Karma or Protractor.
- Write test method names that describe behavior
- Use test class names that provide context: a useful trick is to prefix it with "when". Here's a Java example that might illustrate this a bit better:
public class WhenUpdatingMyBirthDate { @Test public void should_be_able_to_edit_birth_date_on_profile_page ... }
- Use fluent assertions. This is basically the BDD "expect" syntax for assertions, like this chai assertion for example:
Without Cucumber, the answer to, "How do I do automated testing in AngularJS?" is pretty straightforward. Google has built two amazing good tools Karma and Protractor which are test runners that execute unit tests and ui/e2e tests, respectively.
Web / e2e Tests | Unit Tests
With Cucumber
Web / e2e
Step Definitions
Unit Test
Step Definitions
How do I actually do this?
Start with this:
Then change it to this:
The posts on this site are written and maintained by Jim Lynch. About Jim...
June 2018


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One of the long-time cranks who's commented on this blog is a bozo who goes by the name "Vorlath". Vorlath is a hard-core Cantor crank, and so he usually shows up to rant whenever the subject of Cantor comes up. But last week, while I was busy dealing with the Scientopia site hosting trouble, a reader sent me a link to a piece Vorlath wrote about the Halting problem. Apparently, he doesn't like that proof either.
Personally, the proof that the halting problem is unsolvable is one of my all-time favorite mathematical proofs. It's incredibly simple - just a couple of steps. It's very concrete - the key to the proof is a program that you can actually write, easily, in a couple of lines of code in a scripting language. And best of all, it's incredibly profound - it proves something very similar to Gödel's incompleteness theorem. It's wonderful.
To show you how simple it is, I'm going to walk you through it - in all of its technical details.
Suppose I've got a program, $P$. I can treat the program P as a function, from its input to its output. Of course, not every program produces a result for every input. For example, I can write a program which takes an integer as a parameter, and never stops if its input is divisible by 2:
def RunForeverIfDivisibleByTwo(i): if i % 2 == 0: while True: continue else: return i / 2
The halting problem is basically a formal way of asking if you can tell whether or not an arbitrary program will eventually halt.
In other words, can you write a program called a halting oracle,
HaltingOracle(program, input), which returns true if
program(input) would eventually halt, and which returns false if it wouldn't?
The answer is: no, you can't.
Why not? We can finally get to the proof. Suppose, just suppose, that you could write a halting oracle. Then you could run it on any program at all, and see if it eventually halts. So, run it on this:
def Deciever(i): oracle = i[0] in = i[1] if oracle(Deceiver, i): while True: continue else: return i
So, the input to
Deceiver is actually a list of two elements: the first one is a proposed halting oracle. The second is another input. What the halting killer does is ask the Oracle: "Do you think I'll halt for input i?". If the oracle says, "Yes, you'll halt", then the program goes into an infinite loop. If the oracle says "No, you won't halt", then it halts. So no matter what the oracle says, it's wrong.
So, if you come up with a halting oracle - a program that can tell whether or not other programs eventually halt - it will produce the wrong result for
Deceiver. And that means that it's not a halting oracle - because there's at least one program where it generates the wrong result.
That's it. That's the entire proof. And that little Python snippet up there? That's a real program that would work as a real counterexample for any real halting oracle!
See what I mean about it being very simple, and very concrete?
The reason that it's so profound is that you can formulate any mechanical proof process as a computer program. If a proof exists for a theorem, then you can write a program which searches for the proof, and will eventually find it. We can do that. We can write a program which searches the entire space of first order predicate logic proofs, trying to find a proof for a specific theorem. If it's a theorem of FOPL, it will eventually find a proof. It might take a very, very long time. But if a statement isn't a valid theorem, then the program will never stop. It will keep searching, and searching, and searching. And if the program doesn't stop, you can never actually conclude that "It's not a theorem", because if you just ran the program for another 10, or 100, or 1000 steps, it might stop.
If you could solve the halting problem, then you could take a theorem proving program for a specific logical domain, and given any statement, determine whether or not it was a provable theorem - by asking the halting oracle whether the program would halt on that input! (See what I mean about it being like Gödel?)
So - Vorlath doesn't like this proof. He thinks it's really no good. And so, he sets out to show that it's incorrect. And the way he does that is... by showing that a halting oracle will generate the wrong result for some inputs!
Seriously. He's basically taking the validity of the proof, and using it to conclude that there's something wrong with the proof.
The way that he does this is by claiming that the program - the
Deciever above - doesn't have a well-defined result. Because since we don't know what the halting oracle will produce, we don't know what the program will do. We don't know whether the program will halt or not, because we don't know whether the halting oracle will say that it will halt. It's got nothing to do with whether or not we can determine whether or not a given program will halt - the entire problem is that we don't know what the Oracle will answer. If we knew what the Oracle would answer, then we'd know whether the program would halt.
In his words:
The issue here is that this is not a proof by contradiction at all. In fact, we can show this quite clearly by using an Enabler program that does exactly what the F function says (including the Oracle).Program Enabler(Function F) { If (!F(Enabler,F)) while(true); }
The only thing that changed is that we negated the value returned by F. Here, the Enabler program does exactly what the Oracle says it will do when F is set to the Oracle program. Unfortunately, it is still undecidable because we still don't know which answer the Oracle will return. This is why the Deceiver program is indeterminate. It is not because of the bogus contradiction.
The problem with Vorlath's whole argument is that he doesn't seem to understand what the halting problem is. The question isn't "Can I look at a specific program, and figure out if it halts?" The question is, "Can I write a program that can tell whether any other program will halt?".
His argument basically says that in the proof, we, as humans reading the proof, can't say what the halting oracle will return, and that therefore, the halting program is indeterminate, and that that's the cause of the contradiction.
That's not it at all.
The halting problem is a question of whether or not a program can tell whether any program will halt. And the halting proof is remarkably concrete. Write a program that you believe will correctly determine whether or not other programs halt - and the deciever will work - it will produce a behavior different than what the oracle predicts. The oracle will be wrong for the deceiver. But if you take Vorlath's
Enabler, and run it through the oracle? It will work: it will do exactly what the Oracle says it will do. The oracle will be right. It doesn't matter what the oracle thinks
Enabler: in a real program, whatever the oracle answers is what
Enabler will do. Enabler isn't indeterminate: for any given oracle, it will do exactly what the oracle predicts. It may do different things for different oracles - but that's perfectly all right. It doesn't matter whether we as humans can look at it on paper, and tell whether it can halt. The question is, when the oracle produces a prediction - however it does it - will that prediction be correct? And if you run the enabler through a specific oracle? Its prediction will be correct; if you run the deceiver through a specific oracle, its prediction will be incorrect. That's the whole point.
Anyway... from here, Vorlath goes into a pointless sidetrack working through a specific table-based example that purportedly demonstrates the problem. This, again, demonstrates that he really doesn't even understand what the halting proof is supposed to prove. Remember, it proves that a halting oracle will always get the wrong answer for some programs. That's all it proves; that's all it has to prove. So, in his own words:
So what is going on? The issue is not about being able to calculate the halting status of a given function. It is solely about definitions. Can we define a value to be used both as input to a decision and as the conclusion of that decision? The answer is that it is foolish to rely on this. That's all the halting problem is about. We can still calculate the halting status of every input just as long as we don't attach meaning (definitions) to those inputs (especially if we try to relate those values to the halting status.
This couldn't possibly be more wrong. This has nothing to do with
definitions. And it doesn't have anything to do with being able to determine the halting status of a particular function. It has to do with whether a program can make a correct prediction about another program. It's about very concrete programs. He doesn't like the recursive nature of the solution - but real computer programs can be fully recursive. I can take a halting oracle program, and pass it to a halting oracle program. I can take a halting oracle, and use it as a parameter to a concrete deceiver program. You can't escape this trap.
In fact, there's even a whole fascinating research area that's built on this sort of meta-circularity, where you pass the code of a program as parameter to that program. There's a nifty idea called partial evaluation. In partial evaluation, you can take a program which is basically a sort of static program optimizer, and by running it on itself, you can turn an interpreter into a compiler. It actually works. It's a bit hard to follow. But it works. There are really people working on building compilers this way! There's a book on it, available here. And I'll probably write a post about it at some point.
So? Vorlath: moron. His counter to the halting proof? It's not a counter: it's an example of how the halting proof produces the right result. His distinction between definition and computation? Totally bogus.
On the other hand.. Alan Turing? Genuis. Halting proof? Really cool. Recursive meta-programming? Super cool.