The build-a-grievance post (or why AB1208 is necessary)

Posted on April 21, 2011

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The JC / AOC build a grievance post

(Or… why AB1208 and other reforms are necessary)

(Thanks to Delilah for providing us the circulating list)

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Starting with an already existing list of grievances being circulated about, we want to see if our readers can add to or enhance this list of grievances. There are two ways to do this. Either you can drop me a note in my private message window about the grievance that should be added or you can add that grievance in-thread. Most of the grievances thus far listed are governance grievances. Other grievances may relate back to an overall governance grievance.  Please determine if the grievance you’re specifically identifying isn’t already covered by one already listed, even if the listed one covers it in a broader sense.

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1. The AOC Has Grown Into a Huge Bureaucratic Nightmare

In the past 10 years, the Staff of the Administrative Office of the Courts has grown from less than 300 to now over 1100. There seems to be no end to the bureaucratic expansion in San Francisco. Along with the creep in size, these administrators see themselves as co-equals in the decision making functions of court administration. This organization incessantly seeks to add to its powers and increase its size. Over one third of these employees are paid $100,000 or more.

2. There is No Diversity of Thought in Governance

Membership on the Judicial Council is based on proven records of past support for the ideas and policies of court administration. Original thought is not valued, adherence to company policy is. This is true on judicial council committees as well. Judicial Council votes over the past decade reflect virtual unanimity — there have been only seven occasions when even one member dared dissent.

3. There Has Been a Complete Breakdown in Trust re: Court Administration.  JC/AOC Administration

On a number of occasions, without any notice to the judges, court administration the Judicial Council and the administrative office of the courts has gone to the legislature to increase its power over judges and local courts. Included in this effort has been an attempt to Amend Article VI of the State Constitution to given the Council increased powers, an attempt to allow the Council to name the Presiding Judges of the various trial courts, repeatedly hiding Judicial Council decision making by referring issues to the Executive and Planning Committee for important decisions made on private telephone conference calls, creating judicial council meeting rules which prohibit judges with concerns from addressing colleagues on the council during meetings and walling off important decisions and debate from public scrutiny.

4. Complete Tone Deafness

Court Administration The Judicial Council and the administrative office of the courts asked the judiciary and rank-and file AOC employees to help with the court financial crisis by contributing a day’s salary per month. Most judges and justices and many AOC employees voluntarily did so. At the end of the giveback program, the Council awarded to employees of the bloated AOC bureaucracy retroactive salary increases. (This was actually done twice, the first time was large raises given to 80 or so high-ranking persons within the AOC by the executive director, the second time to all AOC employees with the blessing of our new Chief.) Even today, court employees are taking “furlough days”, days without pay, while a few judges and boatloads of court administrators continue to call for the implementation of an ill-conceived, over budget case management system which received disastrous reviews by the state auditor. Rather than bury this expensive albatross, judges and administrators continue to stump for support for this foolish endeavor, sucking up hundreds of millions of dollars that could support court functions in this time of need.

5. Lack of Oversight of the AOC

The AOC has been run basically by the administrator and, to some extent, by the Chief Justice. As far as actual oversight, there has been almost none. The role of the bureaucracy is the serve and grow the bureaucracy, not necessarily the courts. There appears to be no oversight, resulting in numerous laws, ethical standards and standards of common decency being violated. Yet management inexplicably looks the other way and whistles dixie because there exists no one to enforce those laws. There are no consequences for unlawful behavior.  There appears to be no boundaries as to the size and duties of the AOC, and the role they are to play in supporting the courts is ill-defined. Their growth potential appears to be unlimited based on the addition of more and more functions that this organization can usurp from others. For example, CJA provided, as member services, many of the same things that the AOC now provides, but when CJA provided these services they cost the taxpayer nothing. A similar situation exists with the AOC’s ill-concieved basic facilities maintenance program that in some cases removed seasoned, experienced affordable local court workers and replaced them with unqualified, inexperienced, unlicensed contractors that have gamed the system set up by the AOC.

6. A Few Attend Lots of Meetings, the Rest of Us Work

Governance issues have historically been trusted to the hands of the chosen few. However, it is not just the insular nature of the decision making process that has rankled the judiciary, but the fact that the chosen ones don’t carry the same workload as the rest of the judges. In many courts, the chosen ones are rarely available for assignments because they must scurry off to meetings, leaving those left at home to do their work.

7. The AOC as New Court Builders

Recognizing that the AOC can do anything that is court related, they have now embarked on an ambitious schedule to build new courthouses throughout the state. Not that this group possesses any particular expertise in building courthouses, the fall back has always been to simply hire more help in San Francisco. While replacing decrepit courthouses is a fine idea, the devil has been in the details. San Francisco now takes the position that it owns all things judicial, including the courthouses. This brings enormous challenges as far as maintenance, building costs and building locations and, of course, naming of court facilities.

Probably because of a lack of expertise, possibly because of a lack of fraud, waste abuse and public corruption laws, the cost of building courthouses by the AOC has been astronomical. Sometimes, literally double what the federal government pays for building a similar courthouse. Maintenance of court building costs have skyrocketed since falling under AOC control. The media has reported gross examples of huge payments of tax dollars to fix squeaky doors, removal of gum from courthouse sidewalks and changing out light bulbs. Similarly, there have been instances around the state where the AOC has been the ultimate arbiter of where a local courthouse is to be built, even which city. Finally, because San Francisco clearly knows more than locals as to local legal heroes, San Francisco has now decided they will decide what name if any will go on the wall of the local courthouse.

8. Persistent Diminution of the Role of Local Courts and Judges

After Ron George became Chief Justice, there has been a consistent effort to undermine the autonomy of local courts. The Presiding Judges committee is now a standing advisory committee of the Judicial Council. They are expected to follow the lead of their handpicked chair in implementing AOC policies which homogenize the local courts. Courts dare not resist because of the ever present threat of withholding of court funds to local courts. Inexorably, judges are becoming more like case workers than independent elected constitutional officers. Every year, the Council adds to the rules as to which educational courses judges must take, things judges must do, always with the threat of harm to local courts or referrals for discipline for failure to obey.

9. Problems with the CJP

Many judges report an atmosphere of distrust and anger over the perceived abusive behavior of the CJP. It appears to many judges that there has been a steady ratcheting up the punishments for even the slightest transgressions, as well as taking on investigations of supposed wrongdoing where the underlying conduct has never been historically defined as wrong. Moreover, a high level of expertise concerning ethics and the code itself recently has not been as evident as in the past. Many who have filed complaints have also lost faith in the CJP, its leadership, the integrity of the system and the process.

10. Court Closures, Hours of Court Operations

When it became clear last year that the state budget was in such bad shape that drastic measures would have to be taken, Court Administration the Judicial Council and the AOC was faced with a huge dilemma: reduce the bloat at the AOC or shut down the courts, limiting the public’s access to justice. Unbelievably, shutting down the courts won out! Even now, there are courts operating on reduced hours of being available to do the public’s work. As a huge budget shortfall looms again, our administration will be tasked with making another hard decision.

11. Problems with the whistleblower processes and laws.

The AOC has structured their internal audits divison to be a subdivision of the finance department. They manage the Judicial Branch fraud, waste and abuse hotline. It does not stand as an independent entity monitoring AOC’s activities and enforcing the laws. On the contrary, by all outward appearances it does quite the opposite in assisting the AOC in disposing of its dirty laundry while it continues on in its reckless path. Additionally, the whistleblower laws passed last year are ineffectual due to the inherent conflict of interests of sending judicial branch whistleblowers back to the judicial branch for adjudication.

 

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Proposed Solutions to Governance Problems:

A. Support AB1208. Doing so will show that you are indeed bringing a new day to the judiciary and the judges who constitute the judicial branch of government. It will show that you understand the dissatisfaction of the state’s judges and are willing to solve the problems you inherited. We know you inherited them, so don’t adopt them as your own.

B. Democratize the selection process for the Judicial Council to encourage a variety of perspectives and input, rather that an insular and unrepresentative viewpoint. The voting members of the Judicial Council must be elected democratically. The process should ensure representation from large and small courts throughout the state.

C. Change the makeup of the Council. Ask for all incumbent members to resign. Democratize the selection process by allowing trial judges to elect some members to the Council from the trial court bench (appellate justices as well). Then as to the spots remaining for appointment by the Chief Justice, decide which if any of the resigned members you want to reappoint. Or, better yet, appoint new people to the Council, ones that share your vision and commitment to it “being a new day.”

D. The Council needs to reclaim much of the authority it has delegated to its Executive & Planning Committee. Meeting agendas should be distributed at least 10 days before meetings. Judges and justices of the courts, active and retired, should not have to submit written statements and obtain approval from E&P, or anyone else, before addressing the Council on any agenda item — the Judicial Council is their policy-making body and it should welcome their opinions on any issue affecting the judiciary.

E. Anyone speaking to any issue on the Judicial Council agenda should be permitted to address the Council when that item is called for discussion, after AOC staff has presented its report and recommendation. The current practice of permitting public comment only at the outset of the meeting deprives the speaker of being able to hear the AOC staff presentation before addressing the Council, which has on at least one occasion led to this abusive practice at the December 2010 meeting: a five-page legal memo was not distributed until Mary Roberts rose to address the Council, too late to be addressed by those who spoke at the start of the meeting.

F. Seek out and appoint Judges who have been willing to question and challenge AOC programs and approaches. Get some independent thinkers up there with you, rather than a bunch of people who go along to get along and to further their personal careers in the hope of an elevation to the DCA or to achieve perceived “special” status.

G. Eliminate segments such as the AOC Office of Court Construction, as the state already has the Department of General Services with an entire division dedicated to Construction Services for the State, which includes not only construction but architecture and building and property management. Duplicate agencies are not necessary. Supporting AB314 and subjecting court construction funds to the public contract code achieves this goal.

H. Eliminate any segments of the AOC which had as their original purpose a task or function that has been accomplished or abandoned.

I. Close all the AOC Regional Offices and eliminate the staff positions associated with them. Then cut the staff size of the AOC in San Francisco by at least 25%. This would still leave some 800 AOC staffers to serve about 1700 active judges and justices in the state – a ratio of roughly one AOC staff person for every two judges. That should be more than sufficient for a support organization.

J. Eliminate each of the AOC Regional Director positions. Consult with all of the state’s judges regarding the replacements for Mr. Vickrey, and for Mr. Overholt, should he likewise retire as some expect. Invite California’s 58 counties to make proposals to house any remaining segments of the AOC in their local courts.

Bids to house the AOC could be evaluated based on the location with the proposal that generates the least total anticipated expenditure of taxpayer dollars, considering building lease or purchase costs, travel, hotels, airport accessibility, and other identifiable expenses associated with the necessary functions of the AOC.

K. Eliminate the rule of court regarding court administrative records and subject the AOC and Council to the public records act, brown open meeting act and other sunshine laws. Both the media and the public deserve to know how the judiciary manages their tax dollars without having to file suit to possibly obtain disclosure. Both the public and the body of the judiciary needs to have both the trust created by transparency and meaningful input in the judicial council and its various committees.

L. The council needs to re-assert control and take responsibility for their own administrative office of the courts. The executive director has been given too much unchecked power and with it zero accountability. This must change.

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Note: The Assembly Committee on Accountability & Administrative Review is no longer hearing this bill on April 27th. Instead, it will be heard by the Judiciary committee some time in early May.

Committee on accountability and administrative review:

Committee Members District Phone E-mail
Roger Dickinson – Chair Dem-9 (916) 319-2009 Assemblymember.Dickinson@assembly.ca.gov
Martin Garrick – Vice Chair Rep-74 (916) 319-2074 Assemblymember.Garrick@assembly.ca.gov
Marty Block Dem-78 (916) 319-2078 Assemblymember.Block@assembly.ca.gov
Joan Buchanan Dem-15 (916) 319-2015 Assemblymember.Buchanan@assembly.ca.gov
Paul Cook Rep-65 (916) 319-2065 Assemblymember.Cook@assembly.ca.gov
Nathan Fletcher Rep-75 (916) 319-2075 Assemblymember.Fletcher@assembly.ca.gov
Shannon L. Grove Rep-32 (916) 319-2032 Assemblymember.Grove@assembly.ca.gov
Curt Hagman Rep-60 (916) 319-2060 Assemblymember.Hagman@assembly.ca.gov
Alyson Huber Dem-10 (916) 319-2010 Assemblymember.Huber@assembly.ca.gov
Bonnie Lowenthal Dem-54 (916) 319-2054 Assemblymember.Lowenthal@assembly.ca.gov
Holly J. Mitchell Dem-47 (916) 319-2047 Assemblymember.Mitchell@assembly.ca.gov
Richard Pan Dem-5 (916) 319-2005 Assemblymember.Pan@assembly.ca.gov
Anthony J. Portantino Dem-44 (916) 319-2044 Assemblymember.Portantino@assembly.ca.gov