Monday, December 28, 2009
MY OPINION (Column)
Need for Oversight of AOC Is More Apparent Than Ever
By CHARLES HORAN
From a trial judge’s perspective, local control of court operations and decisions regarding access is why we are elected in contested countywide elections. It is certainly not to decide cases based upon some regional interpretation of statute. To have important decisions about court access made by judges or staff who are not locally elected, or even aware of the problems in any particular county, is contrary to the basic precepts of our constitution and form of government. To dissent from such an approach is not to weaken the branch, or cast the judiciary in a bad light, but I believe to ultimately strengthen it.
Local control is necessary, but with every moment it becomes more clear that we continue to move farther and farther from this approach. Judges need to be educated as to the policy embodied in Government Code Sec. 77001, which policy is often ignored or forgotten by those on the Judicial Council and within the Administrative Office of the Courts. In fact, draft legislation recently emanated from the AOC, without the apparent knowledge of the Council, which would have essentially gutted the section. A copy of this draft accompanies this article.
More alarming, the Council has now publicly stated that which we feared all along:
They have little apparent interest in overseeing the AOC, and believe they have no ability to do so.
A senior member of the Council for 12 or more years pointed out at the Dec. 15 Council meeting that the Council only meets six times a year, has voluntary membership, and cannot and will not increase their oversight. They prefer to set policy and have the AOC do whatever they see fit to implement the policy. Oversight is minimal at best.
This loose approach to oversight has recently resulted in….
•The revelation to the members of the branch and the Judicial Council by the AOC that it had allegedly contracted with unlicensed contractors to provide maintenance and repair on a great number of the state’s courthouses, apparently including the one in which I sit. (Things like this, and the manner in which the director reported it was uncovered, also point out the need for legislative protection of whistleblowers in the agency, and not just protection by a Rule of Court or other half-measure.)
•A CCMS computer system that is incredibly over budget, and according to some reports will grow to cost us over $1.7 billion by the time it is done, assuming it ever is. An exhaustive search of the Council agendas and minutes in the year the system was reportedly authorized (2002) makes it clear that if any authorization was made, it was in such vague terms as to be meaningless, and with no public debate as to the cost or expected date of completion.
•Pay raises for AOC employees at the same time that judges, upon the request of the chief justice, are each donating back thousands in salary per year to the judiciary, and employees are being laid off, and courthouses are closed for business. The situation so offended many judges that the California Judges Assn. president issued a statement suggesting that it would be appropriate for that organization’s judge members to withdraw from the voluntary salary waiver program run by the AOC.
•Refusing to even consider or allow debate on the concept of so-called “[Senate Bill] 1407 courthouse construction funds” being used temporarily to keep courthouses open in counties where that is absolutely necessary, such as Los Angeles. To deprive, carte blanche and without public discussion, all 58 trial courts of these funds is inappropriate. While some counties are in a position to build, others are not.
These and other matters too numerous to mention here make it apparent to many of us that change is necessary. The failure to have a structure in place to prevent problems before they become problems, and to allow adequate and fair input by all members of the branch, will inevitably bring disrepute and disrespect upon the judiciary. No longer is it enough to be told endlessly to “speak with one voice.” That voice simply does not represent the thinking of a growing number of judges. No longer can debate be squelched by accusing dissenters, and there are many, of damaging the branch or of dire consequences should debate be public. When debate within the branch is squelched, the unfortunate result can be judges squabbling in public on some issues. I had to chuckle at the statement in the MetNews article about the AOCwatcher blog wherein a senior AOC official stated: “I just don’t know where that would come from. There’s never been any kind of retribution or push-back as a result of people who have criticisms or concerns about the Judicial Council or the AOC.”
The latest dust-up is not the fault of the press, or of judges who speak up, and the answer is not that proposed by the Council—a quicker response by their “truth team.” This point was fortuitously underscored by this newspaper’s article last Wednesday wherein was published a troubling internal AOC email from their official spokesperson which specifically, clearly, and literally admitted the correctness of a central point of the Alliance position, while stating the hope that the reporter could be “sold” a different version. That speaks volumes about the willingness of the organization to admit its errors, even when they are obvious. This, in turn, bespeaks a lack of firm oversight by judges, who must reassert our authority over the judiciary lest others attempt to do so for us, thereby truly threatening judicial independence, and destroying public confidence in our ability to keep our own house in proper repair.
The problem is a structure that allows no dissent, and concentrates decision making power in the hands of a few, and allows a bureaucracy to decide matters that should be decided by judges across the state. We simply want input to decisions that greatly affect us. Thus, we will propose to the Legislature that a 58 member oversight committee of judges elected by their respective courts be formed to conduct the oversight that the Council cannot or will not conduct, and to provide information to the Council, the public, and the AOC that will help insure that the concerns of the local judiciary are addressed appropriately.
In theory, the Council sets all branch policy, and the AOC carries it out as ordered. In reality, those of us who have watched the process over the years know that often times, AOC staff writes the policy, suggests it to the Council who almost invariably accept it, pass it as their own, and send the AOC out to implement it. Or the Council sets policies that are vague and overly broad and susceptible to interpretation, and then orders the AOC to implement them, that before anyone knows how or why, we have a California Court Case Management System problem.
Or, we have a situation where the AOC is tasked with doing things they were never designed to do. Example: At the last Council meeting, final agenda item, the Council received a 71 point series of recommendations from yet another task force. A member of the task force addressed the Council in explaining some of these recommendations, and suggested that the Council henceforth consider taking a leadership role in writing the civics curriculum for grades K through 12, and the written recommendations submitted include using political measures to influence this process. Astoundingly, no one said “Boo.” Certainly the AOC and Council have their hands full without undertaking such a task. But, this recommendation was made seriously, and undoubtedly will be well received by the AOC which never misses an opportunity to embark upon further adventures, and further expansion of budget and personnel. The tape is available at the Council website now, and by clicking on the “agenda” one can also access the entire 200 page report. More importantly, the tape also includes the colloquy between the CJA president and the Council members regarding AOC oversight, and the tone of the responses to his reasonable request speaks volumes about the ability of the Council to undertake oversight on its own.
In terms of reaction to our position letter, it ranged from many along the lines of “Thank you so much for saying what I believe. Please let me know what I can do to help further these goals,” to a few (thankfully) more like: “Judge Horan: How can you even suggest interfering with the governance structure of the branch? Drop dead! Signed: Your mother.” (I jest, but only barely).
I’d like to stress that the ACJ is not some bunch of unwashed radicals out to bash the chief, Council, or AOC. We are elected officials who owe a duty to our constituents to see that the branch is responsive to their, and our, needs. We simply believe that power should not continually remain in the hands of a few unelected and virtually unaccountable individuals, no matter how talented or well meaning they are, such as is now the case, especially when those individuals are appointed, and not elected, to their leadership posts.
Finally, those in positions of power in this branch must stop treating judges like children who must be “hushed.” When a senior Council member took it upon himself to be the first-responder for the Council over last week’s dust-up involving CJA, he sent a missive out to all members of the branch, which was altogether appropriate. Emblematic of this leadership’s “one way information highway,” however, was the fact that those attempting to use the “reply all” function found, as usual, that is was disabled, though the letter itself had specifically noted the need for debate.
Thank you for your consideration of these views, and I ask that they be received in the spirit in which they are offered—with a view toward improving a great judiciary and its administration.
“Section 77001 of the Government Code is amended to read:
Judicial Council shall adopt rules, policies, or directives which
a decentralized system of trial court management. These rules shall ensure
provide, consistent with statute:
authority and responsibility of trial courts to manage day-to-day operations. (b)
Countywide administration of the trial courts. (c) The
authority and responsibility of trial courts to manage all of the following,
consistent with statute, rules of court, and standards of judicial
administration: (1) Annual allocation of superior
court funding. ,
including policies and procedures about moving funding between functions or
line items or programs. (2)
Local personnel plans, including the promulgation of personnel policies. (3) (b) Processes
and procedures to improve superior court operations and responsiveness
to the public.
The trial courts of each county shall establish means of selecting
presiding judges, assistant presiding judges, executive officers or court
administrators, clerks of court, and jury commissioners.
Superior court input into the Judicial Council budget process.
(e) Equal access to justice throughout California utilizing standard practices and procedures whenever feasible.
Section 77202.1 is added to the Government Code to read:
77202.1. (a) As used in this section, “council” means the Judicial Council and “AOC” means the Administrative Office of the Courts.
(b) The council has the responsibility for managing the budget of the judicial branch.
(c) To assist the council in carrying out the responsibility described in subdivision (a), the following requirements and obligations shall apply:
(1) The council shall review the current operation of the courts to identify whether there may be efficiencies that could be implemented in a court or courts to more effectively or efficiently utilize court resources. The council shall also identify opportunities that provide greater accountability and transparency for the use of judicial branch resources. The council shall report to the Budget Committees of the Senate and Assembly on any legislation needed to implement any measures to promote greater efficiency, accountability, or transparency and may adopt by policy or directive any measure that is within the council’s rule-making authority.
(2) The executive officer of a superior court shall report to the council and the AOC on the fiscal condition of the court and cooperate with the council and the AOC on all matters as determined by the council.
(3) As a condition of receiving its annual allocation, every superior court shall submit to the AOC for approval, a complete and detailed budget at such time and in such form as may be prescribed by the AOC, setting forth all proposed expenditures and estimated revenues for the ensuing fiscal year. The budgets submitted by each superior court shall show the allocations of appropriations or other funds available for the fiscal year by quarter or other period of time as determined by the AOC. Expenditures may be classified by line item for each program in the detail prescribed by the AOC. The AOC may require each court to set aside a specified reserve for contingencies or other purposes. No superior court shall increase or decrease a line item in excess of 10 percent in a fiscal year without authorization from the AOC.
(4) After budgets are approved and allocations provided the superior courts, the Council may, in the interest of the judicial branch revise, alter, or amend the budget of superior courts by re-directing budget allocations among superior courts, upon notice to the affected courts and opportunity to report to the Council why such transfer should not occur.
(d) By January 1 of each year, the AOC shall provide to the Legislature and the Department of Finance summary and detailed information regarding the approved budgets of superior courts. The AOC shall provide updates to this information, upon request, to the Legislature or the Department of Finance.
(e) In addition to its other auditing authority, the AOC may examine all records, files, documents, books, papers, accounts and all financial affairs of any superior court. The superior court shall provide the AOC access to any records, files, documents, books, papers or accounts for the purpose of such examination, as well as, in the presence of the custodian or his or her deputy, to the cash drawers and cash in the custody of the superior court. The examination provided for by this subdivision shall occur as often as the Administrative Director of the Courts deems necessary, taking into consideration the work done by other auditors, including internal auditors.
Government Code section 77206.1 is amended to read:
77206.1. (a) The presiding judge, or the person designated by the presiding judge to authorize expenditures from the Trial Court Operations Fund or bank account established under section 77009(a), shall approve no claim, and shall authorize no warrant, for any obligation in excess of that authorized therefor in the budget approved by the Judicial Council.
(b) The Administrative Director of the Courts shall advise the Judicial Council, and the Judicial Council may appoint a person or entity to manage the expenditures from the Trial Court Operations Fund or bank account established under section 77009(a), of any court found to be in violation of this section or found to be in substantial or material noncompliance with the rules or directives regulating the budget and fiscal management of the superior courts adopted by the Judicial Council pursuant to Government Code section 77206, including but not limited to the rules and directives set forth in the Trial Court Financial Policies and Procedures Manual.
(c) The executive officer of a superior court who incurs any expenditure in excess of the allocation or other provisions of the fiscal year budget as approved by the Judicial Council or as subsequently changed by or with the approval of the Judicial Council, is personally liable for the amount of the excess expenditures.”
Copyright 2009, Metropolitan News Company