“If you don’t sign this paper saying you agree that you violated these rules, we’ll shut your daycare down and do a press release.”
That’s what daycare provider Beth Olosky heard from local authorities tasked with enforcing Michigan’s daycare licensing standards.
Officials accused Olosky of violating state daycare regulations. They told her she needed to agree that she committed the violations. They told her that if she didn’t agree, they would summarily shut down her daycare and issue a press release so that everyone knows about it.
Olosky didn’t agree. Local state daycare officials shut her down and issued a press release.
When state daycare officials issue an emergency shutdown, the doors shut immediately. All of the parents who rely on the daycare so they can work are out of luck. The daycare provider is out of their livelihood.
While the daycare provider has a right to challenge the accusations against them, the doors of the daycare must stay shut until the hearing date. That can take months. In the meantime, the daycare worker has no income.
Imagine if the state could walk into any other business and summarily shut the doors until you prove your innocence. In the meantime, you have no income and the people who rely on your services have nowhere to go. Now add threats of a press release if you don’t agree that you did whatever they’ve accused you of doing.
here are some things that come to mind:
Is the State Committing Extortion?
“Sign this or I’ll shut you down and send out a press release.”
That piques my interest as to the definition of extortion. Here’s the Michigan definition of criminal extortion:
“Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or…maliciously threaten any injury to the person or property…of another with…with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony…”
That’s Michigan Compiled Law 750.213.
How is that any different than what the state daycare licensing people are doing? They’re making a threat (I’ll go to the press) to accuse someone of an offense (licensing violations) with a threat to injury someone’s property (I’ll shut down your business), with the intent to compel the person to do an act against their will (admit that you violated the rules).
To me, what the state daycare officials are doing is functionally equivalent to extortion. Their conduct is especially egregious given that they’re state actors and individuals have an equal right to protection under the law. i.e., state officials can’t go around arbitrarily denying or revoking daycare licenses. We all have an equal footing when it comes to getting a state license.
When the state daycare officials show up and make threats, the daycare provider is left with no good option. Even if they’re completely innocent of the accusations against them, their options are to agree to the violations with a signature or go out of business for months, spend thousands of dollars to fight the charges and then hope to reopen. If they agree to the violations, it only makes it all the easier for the state to shut them down in the future because well, you agreed that you broke these rules in the past. State officials are putting daycare workers under duress and making a mockery of their own enforcement system.
Shouldn’t a Press Release Actually Provide Information?
In the Olosky case, daycare officials have accused her of failing to provide adequate attendance records, failing to provide truthful information and failing to provide appropriate sleep equipment. What they don’t say is how Olosky allegedly violated any of these regulations or what the regulations are. What attendance records are required? How did Olosky fail to meet that standard? What sleep equipment is required and how did Olosky fail to provide what she should have provided?
Even criminal press releases actually talk about what the person did to break the law. The press release from the daycare officials just spews accusations. Without more information, the public doesn’t have any information to form an opinion about whether the violations likely occurred or not. Olosky also doesn’t have the information she needs in order to respond publicly in a meaningful way. A press release that spews broad generalizations about conclusory misconduct says nothing.
Why is a Press Release Even Necessary?
The next question is why the press release is even necessary. Olosky was already ordered to inform all of the parents who use the daycare. In any event, they were going to figure it out when they showed up for daycare and the doors were closed. How does informing the public with only sweeping generalizations and no actual information, help anyone or anything?
Shouldn’t an Emergency Shutdown Be an Emergency?
Back to the press release. They accuse Olosky of failing to provide attendance records, failing to provide truthful information and failing to provide adequate sleep equipment. What they don’t do is articulate how any of these behaviors warrants an emergency shutdown. An emergency shutdown is supposed to be so bad that the kids’ life and limbs are in peril if the daycare continues to operate in the time it takes to wait for a hearing. How does not having attendance records put a child’s life at risk?
When you google Michigan daycare emergency shutdown, you read about emergency shutdowns in other parts of the state for a child’s death, assault against a child, more death, and pretty much just for death. So why does a Northern Michigan daycare shut over attendance records? That doesn’t sound like a true emergency. It sounds like the locals don’t have enough to do and they’re trying to look busy.
Why Don’t they Allow for Emergency Hearings?
When the state removes a child from their home and places the child in foster care, the parents have a right to a preliminary hearing within 24 hours. So why do daycare providers have to wait months to have their hearings? They’re not allowed to provide daycare while they wait for their hearings. In the meantime, the state gets what they want, which is a shutdown and revenge for the daycare provider not signing the agreement to the allegations of violation. There’s no motivation for the state to provide timely hearings. If the daycare provider had a right to a hearing within 24 hours of an emergency shutdown, state officials would be more careful about making sure that their ducks were in a row before they issued an emergency shut down. Daycare providers would also have an avenue for relief from false accusations.
Under both U.S. and Michigan law, you have a right to something called due process of law. That means that the state can’t put you in jail, take your property, or in this case take a state license without giving you notice of the reason and an opportunity to be heard. To put it another way, the state doesn’t just get to decide without giving you a chance to present a defense. That’s why you have a right to advance notice and the right to present a defense if you’re charged with committing a crime. It’s also why you have a right to an emergency hearing with 24 hours if the state removes your children from your care. The state can act in an emergency situation, but they also have to give you your day in court as soon as they can and with a meaningful opportunity for you to present a defense. With the state just shuttering doors, they’re likely violating the due process rights of the daycare operators who depend on their services to earn a living.
What Should Happen
When the state wants to summarily shut down a daycare, there should be an administrative emergency hearing within 24 hours, weekends and holidays excluded. The burden should be on the state to prove that the shutdown is necessary until a full hearing can be held because there would be a significant risk to the wellbeing of the children if the daycare were allowed to continue to operate until a full hearing. While the state can put out a press release, they cannot threaten to put out a press release unless a daycare worker agrees to admit to a violation. Daycare licensing officials should stop that practice immediately. If the administrative hearing worker finds that the summary shutdown is without any reasonable, arguable merit, the state should have to reimburse the daycare worker for their lost income for the period of the shutdown. All state daycare licensing officials should receive continued training about the appropriate use of their roles and their authority under the law.
For more, read this update: http://dirtytraverse.com/more-on-daycare-licensing-issues-and-the-olosky-case/