Transparency when it comes to AOC raises

Posted on December 10, 2013

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“Transparency” is a word frequently utilized by the AOC and the Judicial Council. How does this terminology translate into practice when the AOC is involved?

Recently the Chief Justice authorized raises of 3.5% for those working at the AOC. She authorized this pay raise with her signature. With courthouses across the state closing, necessary courtroom employees being laid off, and court hours being restricted, Alliance Director Judge Kevin McCormick decided to inquire what process took place to determine that the raises for administrative staff were appropriate given the fiscal climate in which they were awarded.

Questions to the AOC which seemed logical and easily answered included:

(1) How many employees received the raise?

(2) What criteria were used to determine if the employees’ performance justified a raise?

(3) Did anyone receive a pay raise less than 3.5%?

(4) Was any eligible employee denied a pay increase?

(5) How many of the employees had a performance evaluation within the calendar year preceding their pay raise?
What this request developed was that no eligible employee was denied the increase, every AOC employee eligible to receive 3.5% got the maximum raise, that “Policy 4.3(c)” was used to evaluate the appropriateness of the raise, and that the AOC has no records they will provide indicating if any employee had a performance evaluation in the previous year to evaluate the appropriateness of their raise.

Providing this basic information took 23 days.

The answers, of course, created more questions – chief among them was, “What was this Policy 4.3(c)?”

Policy 4.3(c) Step Increases:

The step increase (formerly merit salary adjustment) rate, if applicable, is set on a fiscal year basis by the Chief Justice based on availability of funds.

Employees who have not reached the maximum salary for their classification are eligible for consideration to receive a step increase effective on their anniversary date. The step increase is awarded based on job performance and availability of funds. Hourly intermittent employees are eligible for a step increase after working 1,920 hours.

Where an employee’s job performance does not support the award of a step increase, the step increase may be deferred for a period of up to one year upon recommendation of the supervisor, with the approval of the division director and notice to the affected employee, at which time the supervisor will again review the employee’s eligibility and either grant or deny the step increase. When a step increase is deferred and then granted effective on a date other than the employee’s anniversary date, the anniversary date will change.

After reviewing this policy, Judge McCormick had a few more questions:

(1) In light of courthouses closing across the state, necessary courthouse employees being laid off due to the unavailability of funds, courthouse construction projects being delayed, downsized, or deferred and citizens’ access to justice being substantially restricted, please explain the methodology utilized by the Chief Justice to determine there was an “availability of funds” within the judicial branch budget to approve pay increases at the AOC?

(2) Since a step increase may only be awarded based on job performance and availability of funds, did each of the employees receiving a pay raise have a written performance evaluation to support the step increase?

(3) Since a deferral of the step increase may be sought for underperforming employees upon the recommendation of their supervisor and approval of the division director, has there ever been, in the history of the AOC, such a request to defer a step increase?
The AOC reply to each of these questions on October 3, 2013, was:

Response: Because your request calls for information not set forth in judicial administrative records, it is being referred to Justice Harry Hull, the Chief Justice’s designee for considering such requests, pursuant to AOC policy 2.8 (Responding to Requests for Judicial Administrative Records and Information).

True to form, no response to the items referred to Justice Hull more than two months ago has ever been received.

On October 15, 2013, the AOC clarified one answer by noting that records now reveal that since April of 1993 a total of 12 eligible employees have been denied a step increase. That is right, 12 employees in 20 years.

The failure to provide answers to basic questions about the operations of the AOC does not equate to the transparency those at the AOC and Judicial Council profess to promote. Justice Hull is a member of the Judicial Council that claims that transparency is a priority, yet he appears instrumental in the failure to provide it. Words without actions to implement those asserted objectives are meaningless.

The entire e-mail correspondence between Judge McCormick and AOC functionaries is set forth below, in reverse chronological order, for you to evaluate the “transparency” of the AOC and Judicial Council and whether in fact there has been any meaningful change in the operations of our state court administrators.

Directors, Alliance of California Judges

________________________________

From: Hershkowitz, Donna [mailto:Donna.Hershkowitz@jud.ca.gov]
Sent: Tuesday, October 15, 2013 1:15 PM
To: McCormick, Kevin
Cc: Pubinfo; Hull, Harry; Jahr, Steven
Subject: RE: Merit Salary Increase

Judge McCormick – First I want to apologize. With regard to item #4 below, you asked: Since a deferral of the Step increase may be sought for underperforming employees upon the recommendation of their supervisor and approval of the division director, has there ever been, in the history of the AOC, such a request to defer a Step increase? Since my response to you, we were able to run an inquiry on the database that we currently use and thus were able to get information in response to your request dating back to April 1993 when we began using that database. Since that date, 12 eligible individuals have been denied a step increase. Please recall that individuals are not eligible should they be at the top of their salary range, and no individuals are eligible if the Chief Justice does not authorize step increases in a given year. For anything prior to that time, as noted below, the AOC would have to review the employee file of each employee who was ever eligible for a step increase. Per California Rules of Court, rule 10.500(e)(1)(B) and the Judicial Council’s October 2011 directive to the AOC regarding responses to judicial administrative records, the AOC is not required to compile or assemble data in response to a request if it does not compile or assemble the data in the requested form for its own use or provision to other agencies.

With regard to your question numbered 1, below: between the periods July 1, 2013, to September 30, 2013, 75 employees received a step increase.

Thank you.

Donna S. Hershkowitz, Director
Office of Appellate Court Services and Court Operations Special Services Office
Judicial Council of California – Administrative Office of the Courts
2255 N. Ontario Street, Suite 220
Burbank, CA 91504

455 Golden Gate Avenue
San Francisco, CA 94102-3688

Phone 818-558-3068
Fax 415-865-4329
donna.hershkowitz@jud.ca.gov

“Serving the courts for the benefit of all Californians”

From: Hershkowitz, Donna
Sent: Thursday, October 03, 2013 4:31 PM
To: Kevin McCormick
Cc: Pubinfo; Hull, Harry; Jahr, Steven
Subject: FW: Merit Salary Increase

Judge McCormick,

As Chad Finke mentioned to you, I have assumed the role of Director of the Court Operations Special Services Office and will be taking on the duties Chad previously filled.

Below please find our responses to your September 26, 2013 requests for judicial administrative records, which was a follow up to the responses provided to your August 30, 2013 request. Each request is repeated verbatim before its corresponding response for ease of reference.

1. As to item 1 you indicate 51 people received an increase in their pay “between July 1, 2013, through August 30, 2013”. I did not mean to limit the inquiry so narrowly. Please advise the number of people who received this merit salary increase, or are scheduled to receive it, as a result of the Chief Justice’s most recent authorization for Step increases to take place.
Response: I anticipate being able to provide to you, by October 15, the number of people who received a merit salary increase between August 30 and the date of this last request. We cannot provide the number of people “scheduled to receive it” because the determination of whether to provide a step increase to an individual employee is made near that employee’s anniversary date.

2. Please explain the methodology utilized by the Chief Justice to determine there was an “availability of funds” within the judicial branch budget to approve pay increases at the AOC.
Response: Because your request calls for information not set forth in judicial administrative records, it is being referred to Justice Harry Hull, the Chief Justice’s designee for considering such requests, pursuant to AOC policy 2.8 (Responding to Requests for Judicial Administrative Records and Information).

3. Since a Step increase may only be awarded based on job performance and availability of funds, did each of the employees receiving this pay raise receive a written performance evaluation to support the Step increase?
Response: Because your request calls for information not set forth in judicial administrative records, it is being referred to Justice Harry Hull, the Chief Justice’s designee for considering such requests, pursuant to AOC policy 2.8 (Responding to Requests for Judicial Administrative Records and Information).

4. Since a deferral of the Step increase may be sought for underperforming employees upon the recommendation of their supervisor and approval of the division director, has there ever been, in the history of the AOC, such a request to defer a Step increase?
Response: To respond to this request, the AOC would have to review the employee file of each employee who was ever eligible for a step increase. Per California Rules of Court, rule 10.500(e)(1)(B) and the Judicial Council’s October 2011 directive to the AOC regarding responses to judicial administrative records, the AOC is not required to compile or assemble data in response to a request if it does not compile or assemble the data in the requested form for its own use or provision to other agencies.

Donna S. Hershkowitz, Director
Office of Appellate Court Services and Court Operations Special Services Office
Judicial Council of California – Administrative Office of the Courts
2255 N. Ontario Street, Suite 220
Burbank, CA 91504

455 Golden Gate Avenue
San Francisco, CA 94102-3688

Phone 818-558-3068
Fax 415-865-4329
donna.hershkowitz@jud.ca.gov

“Serving the courts for the benefit of all Californians”

From: McCormick, Kevin
Sent: Thursday, September 26, 2013 3:15 PM
To: Finke, Chad
Cc: Pubinfo; Jahr, Steven; Hull, Harry
Subject: RE: Merit Salary Increase

Mr. Finke,

I appreciate Justice Hull “authorizing” you to explain to me how an increase in one’s pay is not a pay raise, thank you for that clarification. I imagine those in the private sector along with members of our sister branches of government might struggle with that explanation.

As to item 1 you indicate 51 people received an increase in their pay “between July 1, 2013, through August 30, 2013”. I did not mean to limit the inquiry so narrowly. Please advise the number of people who received this merit salary increase, or are scheduled to receive it, as a result of the Chief Justice’s most recent authorization for Step increases to take place.
Your reply referenced Policy 4.3 so I have quoted the applicable section below related to Step increases.

“(C) Step Increases
The step increase (formerly merit salary adjustment) rate, if applicable, is set on a fiscal year basis by the Chief Justice based on availability of funds.
Employees who have not reached the maximum salary for their classification are eligible for consideration to receive a step increase effective on their anniversary date. The step increase is awarded based on job performance and availability of funds. Hourly intermittent employees are eligible for a step increase after working 1,920 hours.
Where an employee’s job performance does not support the award of a step increase, the step increase may be deferred for a period of up to one year upon recommendation of the supervisor, with the approval of the division director and notice to the affected employee, at which time the supervisor will again review the employee’s eligibility and either grant or deny the step increase. When a step increase is deferred and then granted effective on a date other than the employee’s anniversary date, the anniversary date will change.

Please explain the methodology utilized by the Chief Justice to determine there was an “availability of funds” within the judicial branch budget to approve pay increases at the AOC. With courthouses closing across the state, necessary courthouse employees being laid off due to the unavailability of funds, courthouse construction projects being delayed, downsized, or deferred and citizens access to justice being substantially restricted, such a conclusion seems illogical.

Since a Step increase may only be awarded based on job performance and availability of funds, did each of the employees receiving this pay raise receive a written performance evaluation to support the Step increase?

Since a deferral of the Step increase may be sought for underperforming employees upon the recommendation of their supervisor and approval of the division director, has there ever been, in the history of the AOC, such a request to defer a Step increase?
Mr. Finke, I want you to know that I appreciate your attempts to provide the information I have requested. You have always been very professional in our e-mail exchanges even where I was less than satisfied with the responses. I genuinely hope your new job brings you a great deal of satisfaction, professional growth, and personal enjoyment.

Finally, do you happen to know who will be taking your place in for these types of requests?

Very Truly,

The Honorable Kevin J. McCormick
Judge of the Superior Court, County of Sacramento
Gordon D. Schaber Sacramento County Courthouse
720 9th Street, Sacramento CA 95814
(916) xxx-xxxx

From: Finke, Chad [mailto:Chad.Finke@jud.ca.gov]
Sent: Monday, September 23, 2013 5:23 PM
To: McCormick, Kevin
Cc: Pubinfo; Jahr, Steven; Hull, Harry
Subject: FW: Merit Salary Increase

Judge McCormick,

Below please find our responses to your August 30, 2013, requests for judicial administrative records. Each request is repeated verbatim before its corresponding response for ease of reference. Before turning to the substantive responses, however, I have been authorized by Justice Hull to note that while your request can be read as suggesting that the step increases authorized by the Chief Justice for FY 2013-14 are “raises,” step increases are not in fact raises. Unlike raises, step increases are a mechanism to move employees through the salary range associated with their classification, and are common practice in both the judicial and executive branches for classifications with a salary range.

1. How many employees of the Administrative Office of the Courts received this “merit salary increases?”
51 employees received a step increase for the period July 1, 2013, through August 30, 2013, the date of your request. The data reflects step increases that have been processed by the State Controller’s Office.

2. What was the range of percentages of increased pay an employee was eligible to receive based on “merit?”
Employees are eligible to receive a step increase up to 3.5% of their current base salary. If a 3.5% increase would take an employee above the top of his/her range, they get whatever percentage would get them to the top of the range.

3. What criteria were used to evaluate the employees recent work history in order to determine or justify the appropriate percentage pay increase?
Determination of the of the amount of the pay increase is governed by Policy 4.3 (Salary Administration), subdivision (C) (Step Increases) of the AOC Personnel Policies and Procedures Manual, a copy of which is attached.

4. Who, if anyone, evaluated the employees to make a recommendation for a “merit” pay raise?
See Policy 4.3(C), attached.

5. Who, if anyone, reviewed or approved the individual evaluations to ensure office wide consistency in awarding “merit” pay raises?
See Policy 4.3(C), attached.
6. Did anyone who was awarded a “merit” pay raise receive any amount other than 3.5%?
Yes, employees received a lower step increase amount if the amount of step increase exceeded the maximum salary rate of their classification; an employee is only eligible for whatever percentage would get him/her to the top of the range, up to a maximum of 3.5%. No employee received a step increase of more than 3.5%.

7. How many employees of the AOC who were eligible for this “merit” pay increase were denied the increase?
AOC records indicate that no denial of a step increase has been processed for any employee who was eligible to receive a step increase between July 1, 2013, and August 30, 2013.

8. How many of the employees receiving a “merit” salary increase has had a performance evaluation of their work completed within the calendar year preceding their pay raise?”
The AOC does not have any one record that shows both the employees who received a step increase for the requested time period and the last performance evaluation of those employees. To respond to this request, the AOC would have to review the employee file of each person who received a step increase for the requested time period. Per California Rules of Court, rule 10.500(e)(1)(B) and the Judicial Council’s October 2011 directive to AOC regarding responses to judicial administrative records, the AOC is not required to compile or assemble data in response to a request if it does not compile or assemble the data in the requested form for its own use or provision to other agencies.

9. Did the Chief Justice consult with members of the Judicial Council prior to authorizing this “merit” salary increase?
Because your request calls for information not set forth in judicial administrative records, it is being referred to Justice Harry Hull, the Chief Justice’s designee for considering such requests, pursuant to AOC policy 2.8 (Responding to Requests for Judicial Administrative Records and Information).

Chad Finke
Director
Office of Appellate Court Services/Court Operations Special Services Office, Judicial and Court Operations Services Division
Judicial Council of California – Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, CA 94102-3688
415-865-8925, Fax 415-865-4329, chad.finke@jud.ca.gov
http://www.courts.ca.gov
“Serving the courts for the benefit of all Californians.”

From: Finke, Chad
Sent: Monday, September 09, 2013 4:49 PM
To: ‘McCormick, Kevin’; Jahr, Steven
Cc: Pubinfo
Subject: RE: Merit Salary Increase

Judge McCormick,

We have identified judicial administrative records responsive to your request. We estimate making those available by approximately September 23, 2013.

-Chad

Chad Finke
Director
Office of Appellate Court Services/Court Operations Special Services Office, Judicial and Court Operations Services Division
Judicial Council of California – Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, CA 94102-3688
415-865-8925, Fax 415-865-4329, chad.finke@jud.ca.gov
http://www.courts.ca.gov
“Serving the courts for the benefit of all Californians.”

From: McCormick, Kevin
Sent: Friday, August 30, 2013 12:00 PM
To: Finke, Chad; Jahr, Steven
Subject: Merit Salary Increase

Judge Jahr and Mr. Finke,

A recent article from the Courthouse news service indicated the Chief Justice has authorized a 3.5 percent pay increase for employees of the Administrative Office of the Courts. The Chief Justice has justified the pay increase indicating it is not a raise, but is rather a “merit salary increase.”

The Strategic Evaluation Committee’s (SEC) final Report was presented to the Judicial Council on May 25, 2012. The report indicated, inter alia:

Just as the processes for evaluating organizational performance have been lacking, so too is the system of individual employee performance planning and appraisal. The evaluation of employee performance is a fundamental tool in human resources management, yet it has not been consistently utilized in the AOC. Almost universally, AOC divisions reported they do not provide annual or periodic reviews of employees.”

The report further reflected at page 11 “the AOC does not follow its own written personnel policies and procedures, which require formal annual reviews of employee performance. While the AOC personnel manual encompasses the personnel practices to be followed by the organization, the policies are not enforced — or are simply ignored.

The report continued at page 12 stating: “The failure to utilize individual performance appraisals and to implement other existing personnel policies have contributed to an environment that enables unsatisfactory employees to remain and impairs organizational performance.”

Additionally the SEC report noted:

The AOC’s personnel manual, the “Administrative Office of the Courts Personnel Policies and Procedures Manual,” sets forth the AOC’s “Performance Management Program” in section 3.9. Among other requirements, “supervisors are required to complete a formal performance review every 12 months” for all employees. Incredibly, despite this mandatory and unambiguous requirement, it has been disregarded almost universally within the AOC.

An attempt was made to identify and understand any clear reasons for the near-uniform failure to comply with this mandated personnel policy. The only conclusion is that AOC leadership simply has not considered individual employee performance planning and appraisal to be a management priority. The former HR Division Director described how the issue of the lack of employee performance evaluations was raised at executive directors’ meetings, but the subject “got lost.” As a result the AOC has an inconsistent —or nonexistent — employee performance appraisal system that has led to wide variances in performance, with no consistent method or process to assess and deal with performance issues.
(SEC report at Page 66)

In light of the identified deficiencies at the AOC related to evaluation of employees the SEC recommended the following:

Recommendation No. 7-37: The AOC’s existing policy calling for annual performance appraisals of all AOC employees (AOC personnel manual, section 3.9) must be implemented uniformly throughout the AOC as soon as possible.

Recommendation No. 7-38: A consistent employment discipline policy must accompany the employee performance appraisal system. Section 8.1B of the AOC personnel manual discusses disciplinary action, but is inadequate. A policy that provides for performance improvement plans and for the actual utilization of progressive discipline should be developed and implemented consistently across the entire AOC.
(SEC report at Page 126)

With the above background in mind, please answer the following questions:

1. How many employees of the Administrative Office of the Courts received this “merit salary increases?”
2. What was the range of percentages of increased pay an employee was eligible to receive based on “merit?”
3. What criteria were used to evaluate the employees recent work history in order to determine or justify the appropriate percentage pay increase?
4. Who, if anyone, evaluated the employees to make a recommendation for a “merit” pay raise?
5. Who, if anyone, reviewed or approved the individual evaluations to ensure office wide consistency in awarding “merit” pay raises?
6. Did anyone who was awarded a “merit” pay raise receive any amount other than 3.5%?
7. How many employees of the AOC who were eligible for this “merit” pay increase were denied the increase?
8. How many of the employees receiving a “merit” salary increase has had a performance evaluation of their work completed within the calendar year preceding their pay raise?”
9. Did the Chief Justice consult with members of the Judicial Council prior to authorizing this “merit” salary increase?

Very Truly,

The Honorable Kevin J. McCormick
Judge of the Superior Court, County of Sacramento
Gordon D. Schaber Sacramento County Courthouse
720 9th Street, Sacramento CA 95814
(916) xxx-xxxx