June 22, 2012
Dear Members and Others:
Yesterday the Judicial Council met to receive, discuss and take action on the report of the SEC committee. As you know, the committee was selected by the Chief Justice to undertake a top to bottom review of the Administrative Office of the Courts. The committee took its charge seriously, and after 55 weeks of tireless work — which included painstakingly “extracting” (their word) information from the AOC — issued a scathing 300-page report calling for a complete overhaul and drastic downsizing of the organization, a campaign to restore credibility to an organization almost universally distrusted, and an abandonment of the “culture of control” mindset they found permeated the agency.
Many of you were undoubtedly hopeful that yesterday would be a watershed day for the judiciary. In some ways it was. In other ways, it reflected the very worst our dysfunctional leadership has to offer.
The good news is that two speakers nailed it. During the public comment period, Alliance Director Judge Steve White gave an impassioned presentation of our organization’s view of things, urging the Judicial Council to immediately implement the 140 recommendations of the SEC. Judge White’s comments are attached hereto. We are fortunate to have such a compelling speaker with us.
The SEC chair, Judge Charles Wachob, likewise proved himself to be a convincing advocate for the committee’s findings. Wachob, who spoke for nearly an hour, painstakingly and compellingly detailed the committee’s makeup, approach, methodology and findings. We believe that the judiciary owes Judge Wachob and the other members of the committee a tremendous debt of gratitude. So impressive was Judge Wachob’s presentation that we have attached the entire transcript of his remarks. If you haven’t read the SEC report yet, please do so. In the meantime, we strongly urge you to read the 21-page transcript of Judge Wachob’s summary and arguments.
We have included herein a few highlights from his remarks:
“The information that we received was so powerful and so consistent and so voluminous that it could not be ignored… It was not the members of the committee that were speaking, it was the information that was speaking. It was the judicial branch speaking… I can say, too, that the tone of the report could have been much harsher but it wasn’t… The interviews with the division directors and the managers of the AOC, some were very candid, some helpful, some very forthcoming, and some were not, flat out not… My personal belief, I know this is shared with other members of committee, is that no one really knows how many people worked at various points in time and that’s just the way it is in our view… The AOC has grown in its organization like a coral reef without seeming function or shape… the (organizational chart) of the AOC over years never showed the Judicial Council at the top. That says a lot.”
Judge Wachob noted that those who described the SEC report as a mere “snapshot” in time fail to understand that the report covered a ten-year period in the life of the AOC. “If it’s a snapshot”, he quipped, “it’s a panoramic view.” We couldn’t agree more.
Wachob observed that in 2006, another study of the AOC had been commissioned, which has “gathered dust” for 6 years without a single recommendation being implemented. He made it clear that the committee feared a similar fate for the SEC report, noting that “anyone involved in government knows that the best way to kill a project is to assign it to a committee.”
Of course, this is exactly what the Council ended up doing, after an hour of non-substantive discussions and parliamentary maneuvers.
The Executive and Planning Committee has now been given sole authority over the matter and will commence by referring the report out for a “rolling public comment period.” By our count, this will be the fourth public comment period — CJA’s, the Chief’s, and the SEC’s (which involved sending questionnaires to every current and former judge in the state, among others). The Council has without a doubt now put the matter of the implementation of the report’s recommendations on a piecemeal schedule which could literally take years to run its course.
After it was clear that the Council would not implement the report, Judge David Wesley of the Los Angeles Superior Court gamely tried to salvage something from the meeting, moving to have the Council adopt at least recommendation 4.1. Here it is:
Recommendation No. 4-1: The Judicial Council must take an active role in overseeing and monitoring the AOC and demanding transparency, accountability, and efficiency in the AOC’s operations and practices.
His motion caused obvious discomfort among the Council members and led to page after page of discussion about “debatable and non-debatable motions,” the provisions of Roberts Rules of Order vs. Rosenberg’s Rules of Order, the mechanisms for an “indefinite tabling” of motions, what constituted a “friendly amendment” as opposed to a “substitute motion,” and other such useless chatter. The motion garnered but a single vote.
Perhaps the SEC committee members, most of whom had shown up to see their report received by the council, were surprised by today’s outcome. We were not, having witnessed more than our share of these meetings over the past few years.
If you have some free time, we urge you to read the transcript of the last 20 minutes of yesterday’s meeting. It is the best argument we can think of for democratizing the Council and enacting AB 1208. The Council’s nearly unanimous refusal toimmediately accept the responsibility for overseeing the AOC is a new low in judicial governance. No committee report or extended comment period is needed for us to draw that conclusion.
Included are two articles dealing with the meeting, one by Cheryl Miller of The Recorder, and the other by Maria Dinzeo of the Courthouse News.
Again, we urge you to read the comments of Judge Wachob in their entirety. His committee labored for over a year to bring you the truth. Please look at what he had to say yesterday.
Directors, Alliance of California Judges
Council Sets Up Committee to Study Report Critical of AOC
Courthouse News Service
California Judicial Council Inching Toward Court Bureaucracy Reform
While the report has been praised by many trial judges for recommending sweeping change to what it characterized as a “top-heavy” Administrative Office of the Courts, it has also drawn some criticism over its crisp wording and incisive tone, as it blasted the AOC for mismanagement, fiscal waste, hiring too many employees and hiding its budget process. The report recommended that the AOC downsize its workforce, eliminate unnecessary divisions and focus on serving the state’s 58 trial courts rather than influencing judiciary policy for its own purposes.
“Our report – its tone, its objectivity – it was not meant to be a feel-good report,” said Presiding Judge Brian McCabe of Merced County, one of the report’s authors.
At Thursday’s Judicial Council meeting, McCabe and Judge Charles Wachob of Placer County presented the findings of the Strategic Evaluation Committee (SEC), the 11-member group tasked with doing a top to bottom review of the AOC by Chief Justice Tani Cantil-Sakauye.
“Some people have asked about the way in which the SEC came about with its recommendations and findings. How did you get a room of a dozen or so judges to reach a decision on anything? It’s a fair question,” Wachob said. “And I just have to say, it was incredibly simple. The information that we received was so powerful and so consistent and so voluminous that it could not be ignored.”
He added, “I believe based on the information that we have that the tone was completely appropriate. When you are looking at problems, when you are looking at personnel rules that are ignored, and various problems that we saw, they had to be discussed. Sometimes there’s just not a really pleasant, nice way to talk about those. I can say, too, that the tone of the report could have been much harsher but it wasn’t.”
The committee recommended that the council exercise greater control over the bureaucracy, ensure that the AOC understands its role as a service provider to the courts, demand that the agency provide the council with a business analysis for each of its projects and conduct periodic reviews of its administrative director. The council decided to table discussion on those recommendations until August.
Wachob said the SEC found it interesting that organizational charts on the structure of the AOC did not place the council at the top, even though the council is the head of the judiciary and the AOC is meant to be its staff agency. “It says a lot about Judicial Council oversight but it also talks and speaks about the perspective or a viewpoint of the organization itself- that it’s an organization unto itself. And that has to change,” he said.
Wachob said much of the committee’s information came from interviews with judges and trial court officials and described the conversations as confessional. “They were incredibly candid. Many people expressed that they had been wanting someone to tell their concerns to for a long time, in a safe way where there would be no possibility of any retribution or financial consequences to their courts whatever. It was almost like a confessional at some point,” he said.
To put together the voluminous report, the committee often had to dig for information. In his presentation, Wachob noted that the number of AOC employees was particularly hard to pin down. While the committee found the bureaucracy employed 1,008 people, by May 2012 the number had dropped to 883.
“That’s not much of a drop from the 1008 that existed at the end of the year. My personal belief, and I know this is shared with other members of committee is that no one really knows how many people worked at the AOC at various points in time and that’s just the way it is. That should change,” he said.
He added that even a simple question to the AOC often turned into a frustrating misadventure. “A question, for example, about whether or not a division used a cost-benefit analysis in trying to decide which programs to offer seems like a fairly straightforward question, but it often diverged into multiple e-mails, requests for clarification, letters, correspondence, and at the end of the day, the answer was no,” Wachob said. “Some of the answers, some of the responses that we received from AOC staff in response to our questions for information, were simply non-responsive. People on the committee would joke sometimes that if we were in court and heard that answer and someone objected that the answer was non-responsive, all 12 of us would have sustained the objection.”
But he also noted that other staffers were more helpful. “Some were very candid, some helpful, some very forthcoming. Some were just flat out not.”
The intention of the SEC’s report, McCabe and Wachob noted, was to provide an outline for restructuring the AOC and rebuilding its credibility. Over the past decade, the agency has so grown in size and scope that some courts have come to resent the bureaucracy for exercising what the SEC termed “a culture of control” over the courts it is meant to serve.
While the AOC has seen some changes in the past year, with budget cuts forcing layoffs and the retirement of its former director, deputy director and various other highly compensated AOC executives, Wachob said the changes have been incremental, and mostly circumstantial. “We characterized the AOC’s change in the last year as inching towards consolidation and functions and not necessarily as one that came through a predetermined game plan. The organizational consolidations that occurred in the last year we felt resulted from extraneous events, retirement, attrition, that type of thing. I think the AOC is moving towards the predetermined game plan and structural reorganization but I don’t think that that has occurred yet,” he said.
The council received dozens of pages of comments from judges and attorneys, either urging immediate action to accept the report’s recommendations or decrying the report as unfair to the hardworking staff at the AOC. “If the problem is not addressed, the AOC and the Judicial Council simply will not be able to lead our court system,” wrote Presiding Judge Lee Edmon of Los Angeles. “The best and most immediately effective way to address the lack of trust and confidence of the judiciary in the AOC is to endorse the SEC report and to ensure judges that concrete steps will be taken to implement the SEC recommendations.”
“The report has very little focus on the significant and positive efforts of the AOC to carry out this council’s policy in terms of ensuring access to justice in our courts,” said Appellate Justice Laurie Zelon during the council’s public comment period.
Speaking on behalf of the judicial reform group the Alliance of California Judges, Judge Steve White of Sacramento also urged the council to act quickly to implement the committee’s proposed reforms. “For too many years, the AOC has actively and aggressively usurped the power of the courts and has been found to be dishonest with budgeting, staff levels, pretend hiring freezes, major projects reflecting AOC priorities and the list goes on. This happened because the Judicial Council let it happen. The docility and compliance of previous councils aggrandize the powers of the AOC and the Chief Justice alike. Change must come,” he said.
Judge James Herman of Santa Barbara urged the council to move past the tone of the report and “evaluate substance.”
“You know, I am very concerned for the AOC employees, because I think I’ve shared the experience that many have expressed here. The experiences I have [had] have been by and large extremely positive. The other side of the coin, though, is the report is here. And as judicial officers by and large, by training we look past tone. And I think we got to get past the tone issue, look at and evaluate substance on a go-forward basis,” he said.
In answer to critics on the tone of the report, McCabe said the committee struggled for months on its perspective. “We sat around the table, bickering and arguing with each other and it was kind of a family atmosphere. We’ve had some drag-out arguments, but at the end of the day, not personal and we kept it in perspective. So it took us a long time, trained professionals, to remove that influence, every one of us. And there’s a knee jerk reaction. I’ve sat here and I hope I’m not disrespectful to anybody if I’m grinning, because I’m hearing what we’ve all already lived through and we’ve already struggled with.”
Council member Judge David Wesley moved to accept and endorse the report before sending it out for further public comment, but the word “endorse” did not sit well with fellow council members. “It doesn’t mean you endorse every single one of the recommendations, but endorse the report received from this committee as a — as a significant, important report for this council,” he said.
Instead, the council decided to get further comment on the report, then send it to the council’s Executive and Planning Committee to review the report’s over 100 recommendations. Wesley’s was the only dissenting vote.
McCabe and Wachob were appointed to the council by Chief Justice Cantil-Sakauye earlier this month, and will assist the council’s executive and planning group with its review. Wachob said he agreed with the move to refer the report to that group, but was concerned that the council was getting too fixated on the process, rather than the report’s recommendations.
“What concerns me is the focus seems to be on methodology, what type of committee do we want to have, what kind of process do we want to have. And it seems to me is that the first thing that has to happen is there has to be a commitment,” he said. “You know, here we are at this historic one moment in time for this judicial branch to get things right and to get things moving. And there has to be some kind of a commitment. And once you have that commitment, then there’s probably a number of ways, a number of ways to implement that will.”