| Letter
from Penny Humphreys, Chair
El Dorado County Board of Supervisors
Dated: December 17,
2001
Hon. Suzanne Kingsbury
Presiding Judge
El Dorado County Superior Court
1354 Johnson Blvd.
South Lake Tahoe, CA 96150
Re: Board of Supervisors'
Response to 2000-2001 Grand Jury Report
Dear Judge Kingsbury:
On November 6, 2001
the El Dorado County Board of Supervisors finalized and approved its responses
to the 2000-2001 Grand Jury Report. As you may know, the Board's response
was delayed, in part, as the result of the desire of the Board of Supervisors
to address concerns expressed in a letter from a member of the 2000-2001
Grand Jury regarding the draft responses. The Board gave serious consideration
to the concerns raised and modified certain of the draft responses. Some
of the comments, however, raised issues which dealt more generally with
process of preparing the responses and with matters which relate more
to clarification of than changes to the proposed responses. Therefore,
the Board directed me to sign and transmit this letter which is meant
to clarify some of the Board's adopted responses and to address certain
objections and concerns raised by the Grand Jury member that the Board
believes are more appropriately addressed in correspondence to the Grand
Jury than in its formal responses.
The Grand Juror's
letter raised four objections regarding the Board's response to the 2000-2001
Grand Jury report which County Counsel termed "generic" objections
regarding the Board's response to the 2000-2001 Grand Jury Report in that
they dealt more with the manner in which the responses are prepared and
framed than with the substance of specific responses. Each is discussed
separately below in order to provide background regarding the preparation
of the responses and to assure the Grand Jury that the Board of Supervisors
intends to respond to reports of the Grand Jury in good faith and in a
productive, cooperative manner.
Independence of
the Board's Responses
The initial objection
actually identified two related issues. First, it questioned whether the
Board was simply adopting responses drafted by staff, rather than preparing
its responses independently. Second, it suggested that the Board was simply
giving a "rubber stamp" to responses prepared by elected officials,
in instances where the Grand Jury called for responses from both parties.
The Board wishes to
allay the Grand Jury's concerns on both counts. All of the Board's responses
reflect its independent review and judgment, even if they are unchanged
from responses submitted by staff or elected officials.
It is of course true
that, like the vast majority of written materials adopted by the Board
on all subjects, the Grand Jury responses are drafted in the first instance
by staff that reports to the Board. When these staff-drafted proposed
responses are presented to the Board, however, the Board certainly has
- and has exercised - the authority to revise or rewrite them, or to flag
issues for further investigation or revision by staff. The Board's final
approval of the responses makes them the Board's own. Given that each
Grand Jury report requires responses to literally hundreds of factual
findings and recommendations within ninety days, it is simply infeasible
for Board members to personally investigate and respond to each one without
staff assistance.
Regarding items where
responses were required from both an elected official and the Board, County
Counsel advises us that the statute governing Grand Jury responses does
call for responses from an agency's governing body and from its elected
officials as to matters under the respective control of each. Penal Code
§ 933.03(c). Because there are areas of overlapping control, of course,
it may often - although not necessarily always - be appropriate for the
Grand Jury to receive responses from both on a single issue. When the
Grand Jury requests responses from both the Board of Supervisors and an
elected official, "the response of the board of supervisors shall
address only those budgetary or personnel matters over which it has some
decision-making authority. The response of the elected agency or department
head shall address all aspects of the findings or recommendations affecting
his or her agency or department." Penal Code § 933.05(c).
In this year's response,
we have specifically confirmed that County staff reporting to the Board
reviewed the Sheriff's responses and helped the Sheriff's staff to develop
the responses regarding one of the examples cited in the Grand Juror's
letter, the matter of "acting" and "overfill" positions.
Therefore, the Board's adoption of responses identical to the Sheriff's
response on that investigation reflects the exercise of independent judgment.
In the other three
examples cited, the Sheriff's responses were largely (though not entirely)
adopted without change, either because they involved areas under the Sheriff's,
not the Board's control, because of the infeasibility of conducting an
independent review and response in the time available, or both. It should
be understood, though, that the CAO and other senior staff members do
spend considerable time providing review, oversight and drafting for all
Grand Jury responses. They rely upon their own extensive knowledge of
County operations to spot patent errors, omissions, inaccuracies, or incompleteness.
They have neither the time nor resources, however, to audit the responses
or conduct independent investigations.
We are confident that,
having thoroughly familiarized itself with the myriad of other essential
duties and mandates imposed on the Board and staff, the Grand Jury will
understand our belief that staff simply cannot devote as much time and
resources as one might wish to craft ideal responses, and still leave
sufficient time for Board review, while observing the tight deadlines
imposed by statute. It would be virtually impossible, and unwarranted,
for the CAO's department to conduct independent investigations on the
matters raised by the Grand Jury rather than rely upon the information
provided by those staff members most familiar with the issues. As noted
above, this does not mean that the CAO does not independently and critically
review the information provided by those staff members. The timelines
also limit the time available for editing and wordsmithing to ensure that
the responses convey the appropriate tone and cooperative spirit. Often,
those somewhat subjective goals take a back seat to accuracy and ensuring
that responses are technically correct.
For this process to
work properly, of course, the Board must have sufficient time to review
and consider all proposed responses before finally adopting them. The
Board agrees that there is valid concern in this regard. The fundamental
problem is the tight timelines imposed by state law. Although in some
years they do not pose a problem, when a Grand Jury Report is as lengthy
and complex as this one, it is difficult to accomplish each stage of the
response process within its allotted time. The Board has directed staff
to contact other counties to see if they experience the same difficulties
and report back. If most other counties also report that the statutory
timelines hamper their production of Grand Jury responses, it might be
appropriate to seek legislative relief. If other counties do not have
problems, staff will further investigate to find out why not, and return
findings and recommendations to the Board.
Also, in future Grand
Jury responses, the Board will attempt to clarify where appropriate whether
(and why) it has adopted an elected official's response without review,
or only after some exercise of independent judgment.
Consistency and
Tone of Responses
Second, the letter
criticized the inconsistency and tone of responses when the Board responded
to a factual finding about which it lacked personal knowledge. We concur
that in most cases the appropriate means of responding to such factual
findings is for the Board to agree with the finding, but qualify its response
with the statement that it has no knowledge, and therefore agrees because
it has no reason not to. Exceptions to this approach may be warranted
where the findings contain express or implied allegations of misconduct
in which case such an admission, without actual knowledge, may be inappropriate.
Future Board responses will consistently utilize this approach.
Defensive Attitude
and Disrespect
Related to the second
objection, the letter criticized what it perceived as a defensive attitude
toward previous Board responses and disrespect for the Grand Jury process.
We hasten to reassure the Grand Jury that no defensiveness or disrespect
was intended by either the staff or the Board. We believe that any perceived
defensiveness, disrespect, or hostility reflects either a sincere disagreement,
or the unfortunate side effect of staff working hard to make accurate
responses in limited time to often voluminous and technical factual findings
and recommendations. Tone, in short, is a casualty of time.
Please accept our
apologies for any objectionable tone in this year's responses. We honor
the Grand Jury's important role in our government system and wish to emphasize
that no disrespect of the Grand Jury or the process was intended or lurking
in the Board's responses. We will make our best efforts to ensure that
future responses avoid a tone that could reasonably be perceived as hostile,
defensive, or disrespectful..
Selective Acceptance
of Views
The letter's fourth
"generic" objection was that the Board responses appeared to
selectively accept the view of one department head and reject that of
another, for reasons that are not discussed. As stated above, the Board's
responses do reflect both our, and our staff's, independent analysis and
judgment, so our decisions to adopt or deviate from responses or proposed
responses prepared by others should be viewed in that light. The fact
that the draft responses
prepared by staff in one or more instances accepted the response of an
elected official, but in other instances did not, does not reflect a bias
but rather emphasizes the fact that the responses are independently reviewed
and that different conclusions were reached in these instances.
In addition to these
"generic" issues, the Grand Juror's letter also enumerated specific
concerns. The Board wishes to clarify its adopted responses relevant to
many of these enumerated concerns. Our clarifications follow, with numbers
corresponding to those of the letter for ease of reference.
2. Evasive Responses
The letter stated
that some responses were, in fact, non-responsive and evasive, and cited
two examples. The first involves Finding F3 and Recommendation R1 on pages
26-27. The Sheriff's responses to these items deemed the use of an inmate
trustee to move furniture from the Sheriff's home to the Sheriff's Office
to be labor in a public place, because the Sheriff focused on the furniture's
destination (the Sheriff's Office). This view does not strike the Board
as unreasonable. We recognize, however, that if one focused on the furniture's
origin (the Sheriff's home), the response might well be different. Primarily
because this does not involve a matter under the Board's control, the
Board adopted the Sheriff's response.
The second example
given was the response to Recommendation R5 at page 32. The letter faults
the response for not distinguishing between the "separate and distinct
concepts" of "administration" and "oversight."
We wish to clarify that in responding, the Board did not make this distinction,
because the recommendation refers to "administration and/or oversight"
as if they are a single, interchangeable concept.
3. Responses Contradicted
by Documented Information
The letter said that
the response to finding F7 on page 30, regarding the number of personnel
files kept in the Sheriff's Office, is contradicted by information documented
on Sheriff's Department letterhead. The Board has no knowledge of these
other files, because the Sheriff's filing system is not a matter within
the Board's control and because the Grand Jury Report did not include
or refer to the documentation it refers to. As stated above, in the future
our responses will deal with situations like this by agreeing with the
finding because the Board has no personal knowledge of the matter, and
therefore no basis upon which to disagree.
4. Past Practice
and Unwritten Policies
The letter next criticized
some responses for defending particular actions because they are consistent
with "past practice," and cited three specific examples. However,
the first cited response (to Finding F18 on page 15) actually relies upon
an accepted rule of statutory construction to defend the action. The second
example cited (response to Finding F3 on page 29) actually concurs that
the "past practice" had been changed by a policy action, but
that the policy change itself was inadvertently never formally codified
or implemented. Thus, it does not justify the action taken, but rather
agrees that it should not have happened. The third example (response to
Finding F9 on pages 30-31) does seem to justify "past practice"
as a basis for unwritten policies and procedures. In fact, however, the
response generally agrees with the finding and merely points out in mitigation
that the individual promoted met the qualifications at the time of promotion
(though not at the time of applying).
The point of the criticism
is that "past practice" and unwritten policies are a poor basis
for County operations - and we wish to clarify that the Board agrees strongly
with this point. Whenever feasible and reasonable, the County should operate
on written policies, and that this is particularly so in personnel matters.
7. Logan Building
Responses
The letter critiqued
several responses to findings or recommendations regarding this Grand
Jury's investigation of the purchase of the Logan Building. We wish to
clarify several of those responses.
7b. The letter
criticized the responses to Findings F74 and F82 at pages 107 and 112,
respectively. Specifically, the Grand Jury had offered its tentative
view that retrofitting the Logan Building for County use would exceed
the estimated $750,000 to $1,000,000 loss the county would sustain by
selling the properties (F74), and also its view that retrofitting would
cost $1,000,000 or more (F82). The Board responded by disagreeing, explaining
that the two available estimates of retrofitting costs were both considerably
lower than the Grand Jury's estimate, and the Grand Jury gave no explanation
for its much higher estimate. The basis of the letter's criticism was
not that the Board's response was factually incorrect when written,
but that new information has since come to light. Specifically, the
letter referred to a quote from the County Court's Executive Officer
"in the Friday edition of the Mountain-Democrat" that the
costs for converting the Logan Building for court use could be $2.8
million. It also conjectured that similar information has been or will
be presented to the Board by Judge Kingsbury.
Because the letter
is faulting the response for failing to consider information that was
not available when the Board response was written, the fundamental issue
is whether the Board should engage in a practice of ongoing updates and
amendments to Grand Jury responses when relevant new information comes
to light. We respectfully decline to adopt this practice, because it would
turn the annual Grand Jury process into an ongoing, evolutionary dialogue
with no finality. As a practical matter, Grand Jury Reports and responses
necessarily reflect snapshots in time. New information will always be
available that may support, undercut, or recast what has already been
written. In our view, it is impractical and a poor use of resources to
engage in repeated amendments of either the Reports or the responses.
Because each year is a fresh opportunity for a new round of Reports and
responses, we believe that this is a more appropriate way of dealing with
changing facts and circumstances.
7d. The letter stated
that the proposed response to Recommendation R8 on pages 116-117 continues
the same debate that was resolved by Judge Kingsbury's ruling in the
Grand Jury litigation. We respectfully disagree. The recommendation
proposes that the Board submit a ballot measure to the voters that would
establish that Section 703 of the Charter waives all claims of confidentiality
or privilege for County witnesses and documents in civil Grand Jury
investigations. The proposed response declines the recommendation because
it goes beyond what Judge Kingsbury actually ruled.
Judge Kingsbury did
not interpret Section 703. She found it unnecessary to do so because she
found that the Grand Jury was, as a matter of general law, privy to otherwise
confidential attorney-client and closed-session communications. Also,
her ruling did not extend to all other possible bases for confidentiality
or privilege, and it did not rely upon the concept of waiver to reach
its result. The response acknowledges Judge Kingsbury's ruling and its
effects, and states that to the extent it preserves other privileges,
the ruling has appropriately balanced the competing interests involved.
Recommendation R8
proposes to shift that balance, in our view. It would eliminate all other
privileges or claims to confidentiality, such as constitutional or statutorily
provided (or in some cases, mandated) rights of confidentiality. This
could raise an additional question as to whether the County can waive
the confidentiality of certain information when its confidentiality is
mandated by statute. Also, the recommendation would base that elimination
of rights on the concept of waiver, which raises an additional problem
which must be considered by the Board and the Grand Jury. This additional
problem arises from the nature of the waiver of privileges. When an evidentiary
privilege is waived, it is difficult or impossible to limit the scope
of that waiver. The general legal principle is "waiver as to one
is waiver as to all." Therefore, an approved initiative stating that
all privileges of confidentiality are waived as to the Grand Jury will
inevitably be taken up as a sword by some other party to claim that all
privileges of confidentiality have been waived as to the entire world.
The catastrophic consequences this could have for the County's interests
in litigation and business negotiations, and for the privacy interests
of County employees, are too obvious to require lengthy explanation. To
the extent that disclosure of confidential material to the Grand Jury
is mandated by Judge Kingsbury's ruling, we are hopeful that this general
rule of unconditional waiver will not apply. However, to the extent either
the Board or the voters voluntarily waives a privilege and provides material
to the Grand Jury, County Counsel has provided legal advice that our ability
to limit the scope of the waiver would be highly suspect.
In short, our view
is that it is Recommendation R8, not the Board's response, that revives
the debate previously resolved by Judge Kingsbury's ruling. The Board's
response is intended to preserve the status quo established by Judge Kingsbury's
ruling, while the effect of Recommendation R8 would be to alter that status
quo by expanding that ruling into areas where Judge Kingsbury explicitly
declined to tread.
7e. Finally, the
letter criticized the response to Recommendation R7 on page 116. The
recommendation is that the Board tape-record its closed sessions for
the Grand Jury's future use. The response is that tape-recording is
not warranted because it will have a chilling effect on the frank discussions
that closed sessions are intended to foster. The Brown Act provides
for closed sessions because the Legislature has determined that in certain
limited contexts, public policy is best served by allowing decision-makers
to engage in confidential and frank discussions.
The tape recording
of closed sessions could also have other practical, adverse consequences.
For example, the Brown Act provides the specific circumstances under which
the tape recordings of closed sessions may be released. Creation of those
tape recordings could lead to further conflict between the County and
the Grand Jury in interpreting those requirements. Moreover, although
this discussion occurs in the context of releasing such tape recordings
to the Grand Jury, which is bound by its duty of secrecy, we believe that
the tape recording of closed sessions will inevitably result in demands
by the public or the press for the public release of tapes, based on the
assertion that the Board would release the tapes unless it had "something
to hide." In fact, the Brown Act recognizes valid public policy reasons
for maintaining the confidentiality of closed sessions that have nothing
to do with whether the Board has anything to hide. It is perhaps for these
reasons that no county, to our knowledge, tape records the closed sessions
of its Board of Supervisors.
The letter pointed
out that, if the Grand Jury is privy to the contents of those closed sessions
anyway, a tape recording is better than relying upon the memories of the
participants. We agree, but still believe that the benefits any form of
record-keeping on closed sessions must be weighed against its chilling
effect on closed session discussions, the other considerations we have
described above, and the adverse consequences for governance that would
result.
The Board is still
weighing the issue of closed-session record keeping. We wish to inform
the Grand Jury that the Board supplemented its response on this point
by appointing Supervisors Solaro and Baumann as a sub-committee to consider
possible solutions to the general issue of closed-session record-keeping.
The subcommittee will be reporting back to the Board on December 11.
In conclusion, we
thank the 2000-2001 Grand Jury for its diligent work and we respect its
zealous defense of the Grand Jury's important role in the structure of
local government. Also, we appreciate this opportunity to expand upon
and clarify the Board's responses to the 2000-2001 Grand Jury Report.
Sincerely,
Penny Humphreys,
Chair
El Dorado County Board of Supervisors
cc: Mr. Kenneth Womack,
Foreman of 2000-2001 Grand Jury
Mr. Michael Day, Foreman of 2001-2002 Grand Jury
Mr. Richard Nichols, Member, 2000-2001 Grand Jury
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