Council acts to reform bloated bureaucracy

Posted on September 4, 2012

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It’s probably a combination of Justice Corrigan’s plea as well as the Alliance being cautiously optimistic about actual reforms taking place given the words exchanged and the votes taken.

Here is the rub: Four of these items that came to unanimous votes in this judicial council session were shunned without so much as a second when Judge David Wesley brought them up. We remain skeptics with good reason. No one should simply forget the past. To ignore history and to neglect to perform an in-depth failure analysis that leaves every stone unturned and plenty of  important questions unanswered or with non-credible answers leaves everyone at risk of repeat of epic failure – or worse – what every one of us expects as a result of turning over every rock – and that would be indictments related to public corruption.

While it would be best for the judicial branch themselves to call in investigators to answer the questions no one seems to want an answer to, we – and many others will continue to ask those questions and to point towards those inconsistencies with a skeptical eye. That’s our job and we don’t apologize for doing our job. How many times, on how many different projects do we have to hear that the AOC is mismanaging while they wash those mismanagers through another program or project rather than lay them off? Here’s a novel idea – do what everyone else in government and industry would do and get rid of them.  

Transparency is only so when anyone can draw their own conclusions from a breadth of available accurate information. Accountability is only so when people are held responsible for the decisions they make. Efficiency is only so when these systems actually work and this is where our current Chief Justice and the past council has fallen short. Yes, we must give them credit for asking SOME important questions but they lack the kind of independence that the State Auditor brought to the table that made them wholly credible.

We’re not affiliated with or beholden to the Alliance of California Judges or any other organization other than our own. On some matters, it’s true that we don’t see eye to eye. Many of the items we’ve covered have also been covered by the Alliance Judges and visa versa. This has only been coincidental when it happens and is done without coordination. As a result, we’re bound to come to different conclusions from time to time.

This is one of those times. Our advice? Trust – but verify.

September 4, 2012
Dear Members and Others:
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On August 31 the Judicial Council voted unanimously to accept the Strategic Evaluation Committee’s recommended reforms in almost all respects, reserving only a few matters for future decision. We apologize for the length of this email, but we encourage you to take the time to read this summary in order to appreciate some of the nuances of the Council’s actions.
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As you know, the SEC was formed to do a top-to-bottom review of the Administrative Office of the Courts. The committee delivered its report roughly three months ago, noting many of the problems highlighted by the Alliance of California Judges over the past three years. The report included roughly 150 recommendations for a wholesale reorganization of the AOC and increased Judicial Council oversight of the agency.
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Thereafter, the Council turned the matter over to the Council’s internal Executive and Planning committee (E&P), and adopted the recommendation of that committee to refer the matter out for a public comment period. During that period an unprecedented 529 individuals and organizations responded in writing — 84% of the responses were from judges. Over 90% of those judges favored full implementation of the report’s recommendations; the overwhelming majority of those favored immediate implementation.
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E&P received these comments and, in a series of meetings, developed recommendations as to how the Council to should proceed. The lengthy E & P report can be accessed here. The E&P report lists each of the 151 recommendations of the SEC alongside a corresponding recommendation by E&P. For the most part, E&P agreed with the SEC recommendations but called for delayed or phased implementation as to many. Most E&P changes to SEC recommendations were non-substantive. While the E&P and SEC recommendations are very similar, sometimes being nearly identical, the E&P report, rather than the SEC report, must be consulted for the exact wording of the recommendations enacted by the Council.
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In summary, almost all the E&P recommendations were adopted without change by the Council on August 31. The Council referred a small category of matters to the Chief Justice based upon the recognition that her constitutional powers include sole jurisdiction over the assigned judges program. Another handful was deferred to give the incoming director of the AOC additional input at the next Council meeting. Two were assigned to the Trial Court Budget Working Group, two to the Rules Committee (RUPRO), and one to the Technology Committee.
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The various recommendations adopted are discussed in a bit more detail below.
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The August 31 Council Meeting
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Justice Miller, Chair of E&P, began his comments by affirming his committee’s commitment to the letter and spirit of the SEC recommendations, and promising his continued vigilance in making them a reality. We agree that a heightened level of scrutiny is needed when dealing with the AOC. Justice Miller addressed: (1) AOC oversight by the Council, (2)AOC restructuring, and (3)accountability/monitoring.
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Council Oversight
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SEC core recommendations 4.1-4.4, dealing with the Council’s duty to oversee and control the AOC, were adopted by the Council for immediate implementation, with one change. SEC recommendation 4.2 reads: The Primary Role of the AOC must be as a service provider to the Judicial Council and the Courts.” E&P modified this to add the words “…for the benefit of the public.” Justice Miller did not, as far as we could hear, explain the reason for this modification. The change gives us concern for we have seen “mission creep” abound at the AOC over the years–as documented by the SEC report–and the E&P modification is the type of seemingly innocuous wording traditionally relied upon by the AOC to embark upon programs remote from judicial operations.
The roughly 30 remaining SEC recommendations dealing with Council oversight were adopted without major change, although in some cases the E&P recommendations softened the language of the corresponding SEC recommendation or called for delayed implementation. Recommendations adopted include: annual performance reviews of the AOC director; requiring the AOC to provide the Council with a full range of options, supported by sound business case analyses, relative to all rules, programs, grants, projects and committees; and active Council oversight aimed at ensuring–the SEC committee preferred the word “demanding”–that the AOC becomes transparent, accountable and efficient in its operations and practices.
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Additionally, the Council adopted recommendations requiring the AOC to formulate specific procedures to seek the fully informed input and collaboration of the courts before undertaking significant projects or branch-wide initiatives that affect courts. Further, the Council required the AOC to seek the input of all stakeholder groups. We will insist that the Alliance of California Judges be included as one of those groups.
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Further, the Council required the AOC to keep accurate records and develop a procedure to record its decision making process for significant projects and programs, something lacking in the case of CCMS and perhaps also in the case of the multibillion dollar court construction and maintenance program. Additionally, the AOC is required to develop procedures to identify andsecure funding and revenue streams prior to undertaking projects–also lacking in the case of CCMS.
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This list does not purport to be complete. For all recommendations of E&P implemented in this category, see Justice Miller’s report at the link provided above.
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AOC Organizational Restructuring
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This portion of the Council meeting was extremely difficult to follow with only an audio feed because charts and slides that were used by the incoming Director Ret. Judge Steven Jahr and Interim Director Jody Patel during their presentations were not posted in advance of the meeting and were only made available to Council members. What we can report with certainty is that Justice Miller and the E&P generally favored the SEC recommendations in this area.
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The incoming AOC director likewise stated his support for restructuring as suggested by the SEC, with what he characterized as “minor modifications.” He agreed to reduce the number of executives at the AOC and to group existing offices of the AOC based upon their programmatic function. He noted his agreement with the SEC recommendation for a four-person executive office consisting of the Administrative Director and three division chiefs denominated Chief of Staff, CAO and Chief Operations Officer. Each would be co-equal with defined, delegated duties. He agreed that the AOC Regional Director positions should be eliminated. He spoke at some length about his ideas for reporting lines relative to the Office of General Counsel and Office of Governmental Affairs, which apparently differed in some respects from the SEC recommendations, as do his plans for the Office of Emergency Response and Security, which the SEC recommended scrapping.
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The actual Council vote on this portion of the E&P report was vague, as the motion was couched in terms of “approving the recommendation of Judge Jahr and Jody Patel as far as they have described it today for the organizational structure of the AOC.”  That motion, of course, passed unanimously, but left us wondering what the Council actually had voted to approve. Because of that ambiguity, the Alliance has sent an email to Justice Miller asking that he explain exactly what the Council agreed upon. So far, Justice Miller has not responded.
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Our sense is that Director Jahr will return to the Council sometime later this year to ask the Council to revisit certain matters, at which time we will hopefully have some clarification and finality. In the meantime, it appears to us that the Council intended to adopt all E&P recommendations in this area with the possible exception of E&P recommendations 5-1 through 5-6, and 6-1 which will be considered in October or December.
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In a separate vote, the Council agreed to bifurcate the Office of Court Construction and Management to clearly separate maintenance from construction, with a possible view toward future decentralization of the former function so that trial courts would re-assume this responsibility. We are in agreement with this decision and await exactly what the Council will do in light of the critical audit of that program by Pegasus Holdings, Inc.
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Accountability and Monitoring
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Justice Miller stated, and we agree, that this category may be the most important of all. We are very pleased to note that the Council wisely heeded the advice of the Alliance of California Judges in requiring the AOC to show proof of recommendations they claim have been implemented. In that regard, the Council voted to require those claims be submitted to E&P in writing, with supporting documentation as to when and how they were completed. In other words, the Council placed the burden of proof where it belongs–on the AOC. This procedure is to continue throughout the life of SEC implementation, with the AOC providing reports to E&P on a monthly basis. E&P is charged with the duty of reporting on these matters to the Council at each Council meeting.

Additional Matters of Interest

In addition to dealing with the SEC report, E&P announced that it will undertake a review of the AOC’s task forces, working groups and advisory groups with a view toward efficiency and transparency. It will conduct an analysis of the Council’s delegations of authority to the AOC. It will review the Judicial Council Governance Policies, with recommendations to the Council on revisions. We note that the last time this occurred, policies were formulated in secret and passed by email vote of the Council and the Title Ten Rules implementing the policies were passed on the Council’s “consent agenda.” We hope that E&P realizes that the judges of this state have a stake and interest in these matters, and we urge Justice Miller to make this process open and inclusive.
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In addition, Justice Miller indicated that the Council will continue its practice of formulating long-term branch planning. He has promised to open this process. We hope this occurs. Judges have traditionally been barred from attending planning meetings and have even been denied access to planning meeting agendas. These practices should change.
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Finally, we include for your consideration an article by Maria Dinzeo of the Courthouse News Service reporting on the meeting.
Thank you for your continued support.

Directors, Alliance of California Judges

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Courthouse News Service

8/31/2012

Council Votes to Press Reforms

By MARIA DINZEO

SAN FRANCISCO (CN) – Rejecting charges of foot-dragging, California’s Judicial Council voted Friday to “own” or push ahead with reform of an administrative office that has brought a tide of protest from the state’s trial judges.

“I know that some have indicated that the purpose of assigning it to Executive and Planning and the purpose for our review was merely to delay the process, to maybe eventually shelve the process and the report, and to bury it someplace, said Miller who chairs the E&P committee. “But I can personally tell you that cannot be further from the truth.”

Miller was referring to the massive report released in the Spring after a year of investigation by the Strategic Evaluation Committee that recommended over 100 individual reforms to the Administrative Office of the Courts that brought unusual, widespread and highly vocal protest from trial judges over what was widely seen as the office’s high-handed treatment of the trial courts, its efforts to take over and control court policy and the waste of hundreds of millions of dollars on ambitious and impractical projects.

Earlier this week, his powerful E&P committee had endorsed the great bulk of the reforms and set up time tables for their achievement. Miller asked the council to adopt his committee’s recommendation to set up a structure to implement the reforms.

“We can come before you and recommend that you approve these recommendations, you can approve them and direct that they be implemented. And in some sense that is all well and good. But it is equally important to have a system and a process for accountability,” Miller said.

“So we are proposing the following: For those that have been indicated they have been completed, we are going to ask the AOC to report to us in writing when they were completed, how they were completed and provide supporting documentation.”

The council then voted unanimously to approve the recommendations from Miller’s E&P to forge ahead with reform. Chief Justice Tani Cantil-Sakauye called it a momentous decision, “a moment for the books.”

“Now the recommendations are ours,” said Miller. “They now are the Judicial Council’s. And we own them and together, all of us, as a Judicial Council, must assume the important responsibility to implement and monitor the recommendations which I hope you approve today.

But even with your approval, unfortunately our work won’t magically end today. We have to continually strive to improve.”

“My goal from the outset was to establish a fresh approach to governance, one that’s based on transparency, accountability and oversight and self assessment and communication,” said the chief justice, who appointed the original eleven-judge committee that produced the wide-ranging recommendations for reform. “I needed an objective body to study the agency, a body that understood what we do and how we do it. We’re taking this report seriously. It’s important.”

Miller’s committee recommended annual, rather than periodic reviews of the new director for the Administrative Office of the Courts. The council also agreed that the court construction office should be split into two departments, one to handle courthouse maintenance and the other to focus solely on construction.

Assistant Presiding Judge Charles Wachob of Placer County, who headed the 11-judge committee the produced the seminal report on reform, the Strategic Evaluation Committee, said he knew the construction office was in serious trouble months ago.

“At the time that the SEC prepared its report, we examined the Office of Court Construction and Management. We knew from our site visits and from our interviews and from our examination of their operations and structure that changes were needed,” he said.

During the same period, the council had commissioned a consultant study of the construction program that, like a series of other reports and recommendations over the last year, blasted the management practices of the administrative office. The report by consultant Pegasus Global Holdings was released earlier this month.

Wachob pointed out that the Pegasus report echoed his committee’s earlier conclusions.

“We knew at the time that the Pegasus report was out there and it was forthcoming,” said Wachob. “We didn’t have the advantage of that. We think that the recommendations made in that report were actually somewhat predictable that some of those functions needed to be reorganized.”

Presiding Judge Brian McCabe of Merced County, co-chair of the SEC, said he was “pleasantly surprised” by how the SEC’s report was perceived by Miller and his committee and that the council was right to take its time in evaluating the SEC’s work.

“We encountered none of the rumored resistance,” said McCabe. “Unless you were in a coma or on Mars, you have had an opportunity to comment. I’m comforted in knowing that we went extra steps to make sure everybody’s voice was heard. I think you should be proud that you resisted pressures, external pressures to rush it.”

Presiding Judge Sherrill Ellsworth of Riverside, a member of the SEC, said, “I want to assure anyone listening around this table or on the airwaves that there’s nothing that’s been hidden. If you think you can place myself and Judge McCabe and Judge Wachob on the E&P and we’ll sit in the corner without giving our opinions, you don’t know us very well.”

McCabe added that the year-long timetable recommended by Miller’s committee to start consolidating AOC departments, restructuring management and cutting costs was “overly optimistic.”

“You cannot change the course of a battleship the titanic on a dime,” he said. “So patience to those folks who believe that that is a stalling tactic or an attempt to delay, it is not. These things take time.”

At a public comment period before the council vote, Associate Justice of the California Supreme Court Carol Corrigan urged the council to “stop looking backwards” at the shortcomings and failures of the AOC.